20140705-G. H. Schorel-Hlavka O.W.B. To Royal Commission-Building Industry Issues, Etc-SUBMISSION

Page 1
Page 1 15-2-2014 / 5-7-2014 G. H. Schorel-Hlavka O.W.B.

INDEPENDENT Consultant (Constitutionalist)
INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD
A 1
st
edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0
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WI THOUT PREJ UDI CE
The Hon John Dyson Heydon AC QC 15-2-2014/ 5-7-2014
C/o Legal.TradeUnion@turc.gov.au
5
Ref; 20140215 / 20140705 G. H. Schorel-Hlavka O.W.B. to Royal Commission into trade union governance
and corruption -SUBMISSION
Sir,
I have been unable to locate any email which had the 15-2-2014 submission attached and
hence I forward the same again albeit with added details. 10

It is my view that this Royal Commission may have no powers to investigate matters regarding
Victorian building industry matters where they are subject to contracts made within State
environment.
http://www.theage.com.au/news/Opinion/The-corporatising-of-our-courts/2005/03/23/1111525218521.html 15
QUOTE
The corporatising of our courts
Retirement speech of John K. Phillips, Supreme Court of Victoria
March 24, 2005
END QUOTE 20
I have down below quoted the speech. However, if the states had no legislative power to refer
State legislative powers to the Commonwealth without approval of State electors because it also
removed judicial powers of the State Supreme Court, then clearly any reference of Industrial
Relations by the State of Victoria to the Commonwealth of Australia so to say holds no water.
It means that this Royal Commission would neither have any powers to deal with Victorian 25
alleged abuses by trade unions!
I for one would hold this a shame, but nevertheless the rule of law must not be ignored.
Any delusion of what the Royal Commission may or may not have on powers must be subjected
to extreme scrutiny. After all if it were to obtain purported evidenced and then later it is found
the Royal Commission had no legal powers then it may totally destroy the evidence as such 30
where it had been obtained by unlawful conduct.
What we have is that the Commonwealth provides federal jurisdiction to the state courts but
despite the Kable decision the government has access to the courts computers as well as has it as
Business Unit 19 and as such using the Attorney Generals department ABN number. As such
no longer any separation of powers between the judiciary, the executive, and the legislators. 35
.
Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE
Mr. BARTON.-They do not require to get authority from home, for this reason: That the local 40
Constitutions empower the colonies separately to make laws for the peace, order, and good government
of the community, and that is without restriction, except such small restrictions as are imposed by the
Constitutions themselves, and, of course, the necessary restriction that they can only legislate for their
own territory. 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. 45
END QUOTE

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As the state constitutions are now superior to the state parliament and are also subject to s106 of
the Commonwealth of Australia Constitution Act 1900 (UK) then this significantly changed the
legislative powers provided for in the Victorian constitution act 12855 at the time of federation,
but which was disregarded by the state parliament. 5

QUOTE 20140626-G. H. Schorel-Hlavka O.W.B. to Mr Chernov Governor of Victoria-Supreme Court judicial
power being robbed-etc
But what about if the Parliament abuses/misuses its powers? Well while Parliament is
supposed to restrain itself within the framework of the constitution regretfully when it is 10
dominated by members of the political party that has the Ministers of the Crown then
generally the abuse is rife and unchecked. And any citizen who tries to take on the Parliament
likely will be financial worse off while those culprits who are acting unconstitutionally even if
held to be in the wrong will generally have no punishment at all. That is why what is needed
is the OFFICE-OF-THE-GUARDIAN (Dont forget the hyphens!) which can take them on 15
and without any financial risk to the ordinary citizen. A citizen can alert the OFFICE-OF-
THE-GUARDIAN (Dont forget the hyphens!) and irrespective if the OFFICE-OF-THE-
GUARDIAN (Dont forget the hyphens!) does or doesnt take on the wrongdoer the citizens
can still always pursue his/her own action. But if the citizen does or doesnt take action the
OFFICE-OF-THE-GUARDIAN (Dont forget the hyphens!) can in its own right act as a 20
Sentry.

OK, enough now, lets us see how this all get together as to Supreme Court of Victoria judicial
powers being robbed, you may ask! And also what has this all to do with paedophilia?
25
Well, let us consider the purported Commonwealth Powers (Family Law-Children) Act
1986(Vic).

Commonwealth of Australia Constitution Act 1900 (UK)
QUOTE ss51 30
(xxxvii) matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments
of any State or States, but so that the law shall extend only to States by whose Parliaments the
matter is referred, or which afterwards adopt the law;
END QUOTE
35
One would hold that the Commonwealth Powers (Family Law-Children) Act 1986(Vic)
would clearly fall within the legislative powers of the State of Victoria and so what could
there be wrong with this.

The question also is about the validity of the request for the Australian Act 1986 purportedly 40
passed by the Victorian Parliament.

His Honour French J himself in his THE REFERRAL OF STATE POWERS
COOPERATIVE FEDERALISM LIVES? stated:
THE REFERRAL OF STATE POWERS COOPERATIVE FEDERALISM LIVES? 45
QUOTE
Section 51(xxxvii) does not expressly confer power upon the States to refer matters or adopt laws made
under it. Nor does it specify the mechanism by which State parliaments shall refer matters to the
Parliament of the Commonwealth or adopt laws made under the referral power. The practice has been to
effect such referrals and adoptions by Acts of the State parliaments. The source of the power to refer is 50
to be found either in the State Constitutions or, by implication, from the Commonwealth
Constitution. This precise question has not fallen for determination.
END QUOTE
And
QUOTE

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There is a strong argument against the exercise of the power in relation to anything less than a universal
referral.
END QUOTE
Also:
QUOTE
Conclusion
There are no doubt more unanswered questions in relation to the operation of the referral power. It
may be doubtful whether many or any of these questions will ever reach the High Court.
END QUOTE 10

As such, the issue is and remains is the state has itself legislative powers to refer matters to the
Commonwealth of Australia. And one has to consider than also the following by this:

. 15
Hansard 27-1-1898 Constitution Convention Debates
QUOTE
Sir GEORGE TURNER.-Will you briefly restate the point?
Mr. DEAKIN.-My point is that by the requests of different colonies at different times you may arrive
at a position in which all the colonies have adopted a particular law, and it is necessary for the working 20
of that law that certain fees, charges, or taxation should be imposed. That law now relates to the whole
of the Union, because every state has come under it. As I read clause 52, the Federal Parliament will
have no power, until the law has thus become absolutely federal, to impose taxation to provide the
necessary revenue for carrying out that law. Another difficulty of the sub-section is the question
whether, even when a state has referred a matter to the federal authority, and federal legislation takes 25
place on it, it has any-and if any, what-power of amending or repealing the law by which it referred the
question? I should be inclined to think it had no such power, but the question has been raised, and
should be settled. I should say that, having appealed to Caesar, it must be bound by the judgment of
Caesar, and that it would not be possible for it afterwards to revoke its reference. It appears to me that
this sub-section, which is certainly one of the very valuable sub-sections of this clause, affording, as it does, 30
means by which the colonies may by common agreement bring about federal action, without amending the
Constitution, needs to be rendered more explicit. One point more especially which needs to be rendered clear
is whether, when we have this federal action, there shall not be a federal means of providing for the necessary
revenue that may be required or for imposing the necessary charges under such legislation.
Sir JOHN DOWNER.-Is that not implied? 35
Mr. DEAKIN.-If it is implied, would it not be best to make it explicit? The parentage of this clause, as I
have shown-originating as it does in a body with practically no financial power-casts a certain suspicion on
that reading of it, although, of course, the provision when embodied in this Act would have a different effect.
Still, why not make it clear whether we mean that, when the Federal Parliament has passed federal
legislation for some of the colonies, we shall allow that same legislation to deal with any necessary 40
raising of revenue from those colonies which may be required to give effect to the legislation?
Dr. QUICK (Victoria).-I think the point taken by my honorable friend (Mr. Deakin) is one well worthy of
the consideration of the Drafting Committee, and probably the difficulty to which he has drawn attention
could be obviated by some such provision as that which he suggested. But this matter has struck me also
from another point of view, and it seems to me that the provision affords an easy method of amending 45
the Federal Constitution, without referring such amendments to the people of the various states for
their assent. Now, either when the state Parliaments have referred these matters to the Federal Parliament,
and the Federal Parliament has dealt with such matters, that becomes a federal law, and cannot afterwards be
repealed or revoked by the State Parliaments-that is one position, and in that case, of course, the reference
once made [start page 218] is a reference for all time, and cannot be revoked, so that to that extent it 50
becomes an amendment of the states' Constitution, incorporated in and engrafted on the Federal
Constitution without the consent of the people of the various states. On the other hand, if that be not so,
and the states can, after making such reference, repeal such reference, what is the result? You have a
constant state of change-no guarantee for continuity or permanence-in this class of laws, and this might lead

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to a great deal of confusion and a most unsatisfactory state of things. My principal objection to the provision
is that it affords a free and easy method of amending the Federal Constitution without such amendments being
carried into effect in the manner provided by this Constitution.
Mr. BARTON.-I cannot understand how it gives an opportunity of amending the Federal
Constitution. 5
END QUOTE

What is important is to note that the Commonwealth couldnt raise any taxes from the
general community meaning all taxpayers of the Commonwealth merely because of a State
referring its legislative powers to the commonwealth. Neither was it held that a reference of 10
power could be withdrawn, as once the commonwealth legislated then it would be beyond the
powers of the state which referred the legislative power to repeal this commonwealth
legislation.

HANSARD 28-1-1898 Constitution Convention Debates 15
QUOTE
Mr. ISAACS.-What is the meaning of the statement that the state cannot legislate for the whole
general community?
Mr. BARTON.-That is by way of description. A law made by the state does not apply to the general
community. 20
END QUOTE

As such, unless the Commonwealth makes some form of arrangement for the stated to
compensate the Commonwealth for administering matters on its behalf the Commonwealth
cannot accept the reference of legislative powers. Fancy, the state to refer certain legislative 25
powers to the Commonwealth as to relief itself of a huge financial burden and then taxpayers
of other States having to fork out monies to pay for this. Surely this cannot be deemed
appropriate, and indeed could not be accepted.
.
Hansard 27-1-1898 Constitution Convention Debates (Official Record of the Debates of the National 30
QUOTE
Sir JOHN DOWNER (South Australia).-I cannot see any of the difficulties which Mr. Deakin, Mr. Symon,
and Dr. Quick anticipate in connexion with this sub-section. This, of course, is to be an inelastic Constitution,
which can only be altered after great thought and with much trouble. We define what are to be the 35
boundaries of the Constitution of the Commonwealth. We leave everything else to the states. It may be
that questions may afterwards arise which concern one, two, or three states, but which are not
sufficiently great to require a complete revision of the whole Constitution, with all the troublesome
proceedings that have to be taken to bring about a reform. It would much facilitate matters if these
questions could be referred to the Federal Parliament. 40
Mr. DEAKIN.-It would not be an easy process. You know how hard it is to get even two colonies to agree
to anything.
[start page 221]
Sir JOHN DOWNER.-It would be easy compared with an alteration of the Constitution.
Mr. DEAKIN.-It would not be too easy. 45

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Sir JOHN DOWNER.-Nothing should be too easy. We have the power to alter the Constitution, but it
is a power that can only be exercised with great difficulty. We also have a power of quasi-arbitration,
which the Commonwealth Parliament can exercise in an easier way, although not without some difficulty, at
the request of one or more states. Now, is not that a good principle? I do not think many honorable members
will say it is not. It is suggested that we are allowing the states to throw upon the Federal Parliament a 5
responsibility they ought to take themselves. My answer is that every state wants to aggrandize itself, to
increase its authority, and it will only be in very extreme cases that the states will resort to this means of
getting rid of a difficulty. In an extreme case, is there any harm in having a comparatively easy method of
reference, not to troublesome negotiations, nor to the Imperial Parliament, but to the Federal Parliament.
Mr. BARTON.-It might be impossible to dispose of the matter excepting in that particular way. 10
Sir JOHN DOWNER.-Yes.
Mr. OCONNOR.-Take a case of dispute regarding a boundary.
Sir JOHN DOWNER.-Yes, the cases might be infinite. Take a question of disputed territory, for instance.
What could be more proper than that Victoria, if she became reasonable for once, should say-"Look here, we
know we promised to do it; we know we have broken our promises; we acknowledge our transgressions, and 15
will refer the matter at once to the Federal Parliament"? Who would blame her? Certainly not South Australia.
Even in connexion with the question of rivers some point might arise that might concern two or three
colonies, and that could not concern all the colonies. That, again, might be a proper matter for reference, but
it could not be a common matter of legislation in respect of every state. I will now take the points Mr.
Deakin makes. He doubts whether this power of legislation will carry with it a power of raising the necessary 20
money to give effect to the legislation.
END QUOTE

The following is a condition that has ongoing been overlooked by the States in referring
legislative powers to the Commonwealth 25

QUOTE
That, again, might be a proper matter for reference, but it could not be a common matter of legislation in 30
respect of every state.
END QUOTE

Therefore, where all states desire to refer its legislative powers to the Commonwealth of
Australia on a certain subject than ss51(xxxvii) cannot be used as it must then be by way of 35
s128 referendum.

QUOTE ss51
(xxxvii) matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments 40
of any State or States, but so that the law shall extend only to States by whose Parliaments the
matter is referred, or which afterwards adopt the law;
END QUOTE

As the Commonwealth Powers (Family Law-Children) Act 1986(Vic) was also enacted by 45
other States then clearly it was beyond the powers of ss51(xxxvii).

But wait there is more to this!
.
It must be clear that for example with Commonwealth Powers (Family Law-Children) Act 50
1986(Vic) the Commonwealth then commenced to legislate and no guesses as to who had the

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judicial powers. Obviously where the Commonwealth enacted Commonwealth legislation
then it became a federal jurisdictional matter.

QUOTE 5
Mr. GLYNN (South Australia).-I desire to call the attention of the leader of the Convention to an
apparent vagueness in the word "exclusive," to which reference has not yet been made. The word
"exclusive," no matter at what time the power arises, whether on the coming into being of the
Commonwealth, or the exercise of the power by the Federal Parliament, may mean, and I believe does
mean, that the power of the state to legislate ceases. On the question of whether the exclusive power 10
under this provision comes into being with the establishment of the Commonwealth, I would call the
attention of the leader of the Convention to clause 84. That clause seems to indicate that this exclusive
power arises the moment an Act is passed. It speaks of the exclusive power of enforcing customs duties
being vested in the Federal Parliament, but the second paragraph says-
But this exclusive power shall not come into force until uniform duties of customs have been imposed 15
by the Parliament.
It would appear that without that limitation the exclusive power would come into force at once, and the
position would be as stated by the Victorian representatives. If you pass this clause as it [start page 255]
stands the state could no longer legislate with regard to Chinese.
Mr. BARTON.-If the exclusive power is given without any restriction, I think it would arise immediately 20
on the establishment of the Commonwealth.
END QUOTE

What the real effect therefore was that when the State Parliament refers legislative powers to
the Commonwealth in regard of any subject matter then it actually is robbing the Supreme 25
Court of Victoria of its original jurisdiction ion the matter referred to the Commonwealth.
While it may be argued by nutty lawyers and politicians that the supreme Court can exercised
federal jurisdiction and so the Supreme Court of Victoria can still exercise jurisdiction, well
not quite so because the Family Law Act 1975 clearly limit the judicial powers to the Family
court of Australia and the Federal Circuit Court. As such, essentially what the Parliament of 30
Victoria did was to act in blatant violation of the separation of powers.
Obviously one may ask how then could it comply with the separation of powers when any
reference of powers beyond doubt would transfer the judicial powers to the Commonwealth?
Well, the simply answer is that if the State electors are requested to amend the constitution as
to refer the legislative powers and its associated judicial powers to the Commonwealth of 35
Australia then it is the State electors who have made that decision.

I will now provide a real life incident to display how absurd the situation has arrived to:
(The set out for clarification albeit limited nevertheless needs to explain some details)
40
A man in 1986 (For the moment we refer to him as the Father) was notified by the mother of one of his
daughters ( he was not residing with the mother) that the Department of Human Services (Victoria) was
taking her to the Children Court in regard of again having some of her 5 children being sexual abused. The
Father decided to represent himself at the Children Court and did so and left with the interim custody of his 1
year old daughter as well as her two youngest siblings until the next hearing, about 5 weeks later. After 5 45
weeks the police held that the Fathers partner opposed the children to remain with the father at her residence
and so all 5 children were placed in (then) Allambie, Burwood, a children home of the Department of Human
Services. Subsequently the Department of Human Services decided that the 5 Children would return to the
mother. The Father appealed this and placed the matter before the Supreme Court of Victoria citing the
danger to his daughter regarding ongoing sexual abuse, and to avoid any possible Family Court of Australia 50
intervention also applied to have the daughter to be made a Ward of the Supreme Court of Victoria. The
Supreme Court of Victoria appeared to be indeed concerned about the ongoing sexual abuse and granted the

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Father the orders sought, making known that access to the mother was pending if she didnt have any
boyfriend around.
In 1987 the Father presented his daughter for ac cess at Allambie, Burwood (an ab out 700 kilometre round
trip to do so) when he noticed a man hiding in the background of the unit the mother was staying. The father
refused to allow his daughter to stay with the mother and notified staff that the access orders were that the 5
mother would not have any male near the child. The father then left with his daughter. The Department of
Human Services then pursued a warrant to force the child against the wishes of the Father to nevertheless stay
with the mother while she had her male friend there also. The Victorian Police (as later discovered) then
attended to a nursing home where a woman how had Alzheimers an d no longer was a Justice of the Peace
nevertheless, as the police allegedly were doing on going, to have her sign a warrant. The Minister of Human 10
Services then went on national television making clear that he authorised tracker dogs to locate the child.
Despite the Father having presented the Victorian Police with copies of Supreme Court of Victoria court
orders nevertheless the police a week later, when the Father attended to the police station formally executed
the warrant against the 2 year old daughter (Yes, the warrant was issued against the child and not the Father)
and took the child to Allambie. The Father accompanied the police to Allambie and once there made known 15
that the police had executed the warrant and now he demanded his daughter back. Staff of the Department of
Human Services then made clear that the Father would never again see his daughter. The Father filed an
application in the Supreme Court of Victoria and within 5 days in feb ruary 1988 the Supreme Court of
Victoria heard the matter. Albeit at that time the invalidity of the signing of the warrant was not known then,
nevertheless His Honour I understand was OBrian, made clear that the Department of Human services had 20
no legal right to overrule the Supreme Court of Victoria and the child had to be returned to the Father that
day. This eventuated.
After this the mothers antics were not to seize and in October 21988 she then applied to the Magistrates Court
of Victoria, this even so the Magistrates Court of Victoria has no jurisdiction to interfere with a Supreme
Court of Victoria order, and certainly not with a child that was a Ward of the Supreme Court of Victoria, 25
under the Family Law Act 1975 in view of the Commonwealth Powers (Family Law-Children) Act
1986(Vic). The Father appealed this decision in the Family court of Australia (as an appeal must be made in
that court) but unlucky engaged a lawyer who afterwards he discovered had no understanding about legal
issues. As such the lawyer consented for the Family Court of Australia to exercise jurisdiction, even so it
couldnt do so. 30
Harris v Caladine[1991] HCA 9; (1991) 172 CLR 84 (17 April 1991)
QUOTE CCH 92-217 page 78485 (1991)
The Court could not make an order which otherwise fell outside its jurisdiction merely because the
parties consent to it..
END QUOTE 35
The Father made known he didnt accept the jurisdiction of the Family Court of Australia in that the child
cannot be taken out of the jurisdiction of the Supreme Court of Victoria as the child was a Ward of the
supreme Court of Victoria and cited also British case law where the British Court faced with a child under
wardship of a German Court had both parties consenting to it nevertheless exercising jurisdiction this the
court refused as the child was a ward of the German Court and had to bed returned to the jurisdiction of the 40
German Court.
Problems continued with the mother who now had married the man referred to above. In 1q992 the daughter
had vagina problems and the Father took her to the local (country) doctor who prescribed cream to be applied
daily. The father held that it was better to travel to Melbourne and ask a female friend, a mother of a
daughter, to instead apply the cream as to avoid any possible suspicion he may have acted wrongly with his 45
daughter. Better to ab void any complications was the Fathers consideration.
Soon afterwards the child again complained about having problems in the same area and the Father asked
another female friend living nearby if she possibly could take to the daughter but the Father would not be
present as to avoid any suspicion that he may couch the child. This female friend later made known that the
daughter had made known that she had been sexual abused while on access with her mother. The Father 50
immediately took her to nearby Department of Human Services and expressed his concerns about matters
What he was unaware of was that the daughters half-sibling (about 1 year older) who still lived with her
mother at the same time, had complained about being sexual abused by the mothers husband and the Children
Court had issued orders against this man not to come near the matrimonial home where the child was living.
It was remarkable that despite the Department of human Services being involved in the other case before the 55
children Court simply blatantly ignored that there were two young girls complained to have been sexual
abused at the same time. That is the active court case with the half sibling and where I reported it regarding
my daughter, where the same identity of the matter was known to them. I must be stated that staff of DHS
asked the Father if he wanted to sit in while they questioned the daughter and also warned him that he
obviously was the first suspect, and the father made clear to avoid any allegation he might be couching the 60

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child how to answer he rather stayed out of the room. As such he was not present. Afterwards DHS made
known that the daughter refused to talk about things and so that was the end of it. The Father having been
given the understanding from the female friend that the daughter had been warned that if she talked her father
would be killed it was obvious that this was the reason the child refused to talk to DHS. Nevertheless all DHS
had to do was to check the mothers file and they would have been aware that the half-sibling living with the 5
mother also had complained ab out sexual abuse. What however was clear is that the Father at the time not
applying cream but let a female friend doing so avoided any suspicion upon him in this regard as obviously
they would have asked the child if her Father had touched her at the particular area and then she obviously
was able to say he never had. The Father then decided to take the daughter to the Royal Children Hospital and
explained his concerns. A Specialist then checked out the child and wrote a report that the healing process 10
was consistent with what he understood was the last time this child had been on access.
Finally the matter came before Strauss J and he had the gall to say he didnt know if the Father may have
done it, this even so he was made aware by the mothers lawyer that the man (her husband) had been ordered
to stay away from the matrimonial home by the children court of Victoria but claimed the court had it all
wrong. The Father had no contact with the half-siblings and neither had his daughter when not on access and 15
so it couldnt be claimed that the half-sibling was out up to make her complaint of sexual abused by the
mothers husband.
The mother failed in her custody case and also in her application for child support. Yes, Victoria Legal Aid
was paying for her to apply for $50.00 a week child support this even so she had not had the child in custody
for the previous 5 years! The Family court of Australias Registrar then notified the Father that there would 20
be a court hearing, this the Father telephonic queried and it was confirmed, but upon arrival (a 700 kilometres
round trip) was advised there was no hearing listed. As such the Father, a severe critic upon the Family Court
of Australia was given ghost hearing dates. Problems continued but to keep this limited I will not set it all out
but at one hearing a judge held the Father in contempt and fined him $500 plus about 2,000.00 cost. The
father appealed as the trail judge, despite notified twice, had failed to charge the Father read him his legal 25
rights and allowed him to plea his case. An interim stay of orders was refused by another judge claiming that
His Honour would know the rules and would never make such errors. Subsequently the Full Court of the
Family Court of Australia having perused the transcript set aside the orders upon the basis the father had not
been charge, not read his legal rights and neither allowed to place his case. As such merely summary had
orders made against him without any proper trail. In October 1994 the Father made known to a friend that he 30
was given the understanding from court staff that judges had been overheard to teach the Father a lesson and
he would be imprisoned no matter what. In December 1994 the Father appeared before Hase J and opposed
the proceedings but got no where and so a few days later appeared before the High Court of Australia before
Dawson J who held however that because of the Cross Vesting Act the Family Court of Australia had
jurisdiction, this even so no application had been made within the provisions of the Cross Vesting Act (years 35
later the High Court of Australia in Wakim HCA 27 of 1999 held the Cross Vesting Act was
unconstitutional). The father did explain, but to no avail, that it was intended to imprison him. Subsequently
on 19 December 1994 the Full Court of the Family Court of Australia handed down the earlier mentioned
finding that the orders were set aside, and that day Hase J began to hear contempt proceedings against the
Father,. On 20 December 1991 Hase J refused to step down from the bench to give evidence from the witness 40
b ox when the Father requested this in view that Hase J had been making statements form the bench as if
giving evidence which in fact were incorrect in fact but where Hase J simply created this on his own account
without any evidence for this by either party. On 20 December 1994 Hase J then adjourned the matter until
22 December 1994 for further evidence to be given on 22 December 1994, unbeknown to the Father Hase J
then issued orders that the Father was to be imprisoned for 21 days and the daughter was to be placed with 45
the mother for one months and not entitled to have any contact with the Father. As such the sentence was pre-
determined even so the case was still going on. On 22 December 1994 further evidence was presented and
then Hase J (again albeit a different set of orders) ordered the father to be imprisoned for 21 days and the
child to be with the mother. After 14 days the Father attended to a hearing before the Full Court of the Family
court of Australia and made known that he had served the 21 days b cause of remissions that were applied but 50
Chief Justice Alistair Nicholson J held that the father was incorrect as the Family Law Act 1975 didnt allow
for this, regardless that the Father explained it all, and ordered the Father to go back to prison to serve the
remaining 7 days. However the governor of Prison (beforehand alerted to the issues) ordered the father to be
immediately released. The father immediately went back to the Family court of Australia and announced he
was released. The next day he went again to the Family court of Australia and sat in the court room (but no 55
court in session) when a court sheriff attended and asked the Father to come out of the court room into the
lobby, the Father did so. Sheriff then explained that Nicholson CJ had ordered that I was to be taken to the
prison as the Father had still to serve time. The Father explained that the Sheriff better called the Governor of
prison about matters. The Father then went back into the court room and now the court was in session and it
was a Full Court and Nicholson CJ was presiding over it and to his annoyance the father sat in the court. 60

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Later the Family Law Act 1975 was amended to prevent remission of sentence as is ordinary applicable to
other prisoners due to certain circumstances in the prison.

The Father yet again appeared before the High Court of Australia on 27 February 1995, Dawson J, and
Dawson J held that obviously it must have been an error for Hase J to have pre-issued the orders (different 5
version) on 20 December 1994 and while the Father maintained the Cross Vesting act couldnt apply Dawson
J held it was a Family court matter. The fact that in law pre-issued orders also invalidate the subsequent
orders seemed to be of no concern to Dawson J.

The Father in about 2000 appeared again before the Family Court of Australia and the judges then made clear 10
that because of the 1999 legislation (Federal Courts (State Jurisdiction) Act 1999) that was backdated by 10
years then the Family Court of Australia orders were now to be deemed Supreme Court of Victoria court
orders, and as such the orders were valid.

There were problems with this as the original orders issued by the Magistrates Court of Victoria (without 15
jurisdiction) were issued in October 1988, which is more than 11 years before the 1999 act came into force.
As such the backdating of 10 years couldnt cover the original orders and all subsequent orders fall so to say
by the wayside where the original order was and remains without jurisdiction.

The Father had all along insisted that he relied upon the 1988 Supreme Court of Victoria court orders which 20
the Family court of Australia claimed were no longer valid, but somehow then in 2000 claimed that the
Family Court of Australia court orders were deemed to be Supreme Court orders. So, the father had been
imprisoned for insisting to comply with Supreme Court of Victoria Court orders and refusing to comply with
purported Supreme Court of Victoria court orders.
25
Because litigation in State Court within State litigation provisions versus Federal litigation provisions are
different it means that the 1999 purported legislation denied a Victorian upon rightful entitlements and a
FAIR and PROPER trial.

Here we had that as far as the Father was concerned he was dealing with judges who were not 30
just protecting paedophilia but in fact making sure the child would spend a month with the
mother to continue to be sexual abused. Remarkably at no time was there any assistance
provided for my daughter regarding this re-occurring sex al abuse she was forced to suffer bas
result of Family Court orders.
As this involved my daughter, I am therefore pursuing to try to avoid ever again another child 35
to be subjected to sexual abuse with the assistance of the judiciary. Below I have quoted an
email received which sets out that (unnamed) Australians are involved in hunting down naked
children and raping/killing them. Unlikely this will involve ordinary citizens as royals
generally do not have them around on such so to say misconceived pleasure trips. It might
be interesting to know which high position persons are travelling or known to travel to those 40
areas.

What the above however proved clearly was that this irresponsible and unconstitutional
conduct by Members of Parliament to legislate and then to try to legislate themselves out of
the mess they created no matter the harm they have caused is generally left unknown. They 45
needlessly destroy lives and yet do as if they are so good in legislating and in government.
This is why with my special lifeline service MAY JUSTICE ALWAYS PREVAIL I could
understand even so not approving why there were people giving me the understanding they
would like to hand every judge and politicians as to them that is the best way to make sure
they never do it again and a warning to others. 50

When one is dealing with judges who appeared to me to not just protect but in fact aid and ab
et by their orders paedophilia then all the knowledge in the world about laws, etc, will be to
no use as they are determine to ensure that paedophilia can succeed.

Page 10
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When you have Members of Parliament who are more concerned about how they can enjoys a
quick rich scheme to rip of taxpayers then to bother ab out learning about what the true
meaning and application is then we simply have no democracy.
.
What should be obvious is that the Parliament by passing the Commonwealth Powers 5
(Family Law-Children) Act 1986(Vic) robbed the Supreme Court of Victoria of its inherent
judicial powers. That can never be accepted. Only if State electors by way of State referendum
provide for this can this be deemed appropriate in accordance with s123 of the
Commonwealth of Australia Constitution act 1900 (UK)
10
It would be utterly wrong to assume that s123 only related to physical boundaries of the State
because it also applied to the rights of the States, including the judiciary. As such only a State
Referendum can diminish the judicial powers of the Supreme Court of Victoria.

While I am not making any accusation but merely an example, it could be that there may be 15
paedophiles in the Parliament who deliberately wanted to remove judicial powers form the
Supreme Court of Victoria where it (at least in my experiences) seeks to protect children from
paedophiles, and so by having provided for the Commonwealth Powers (Family Law-
Children) Act 1986(Vic) by this effectively the Supreme Court of Victoria powers to protect
children have been sidelined, and the Family Court of Australia by this may be able to ensure 20
that paedophiles can roam at large.

Perhaps, as we no longer have impartial courts but those that are Business Unit 19 We, the
People, ought to set up peoples courts where people accused are dealt with according to
law and not denied a fair and proper trail. 25

END QUOTE 20140626-G. H. Schorel-Hlavka O.W.B. to Mr Chernov Governor of Victoria-Supreme Court
judicial power being robbed-etc

It appears to me that there is a lack of understanding as to the true meaning and 30
application/implication what this section actually means. What became clear, prior to federation,
was that the Judiciary of the Colony of Victoria was under the delusion, and yet in my view this
has ever remain to be so another more than 123 years later, and it takes a person like myself with
self-professed crummy English to explain/expose it all, as some of it I will set out below. I
quote first however some quotations of statements by the Framers of the Constitution. 35

Hansard 6-3-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian
Convention)
QUOTE
Chief Justice Higinbotham said: 40
It was the intention of the Legislative Council to provide a complete system of responsible government in
and for Victoria, and that intention was carried into full legislative effect with the knowledge and approval
and at the instance of the Imperial Government by the "Constitution Statute," passed by the Imperial
Parliament.
He was supported in his opinion by Mr. Justice Kerferd, who for some time was Attorney-General of 45
Victoria. Mr. Justice Kerferd said:
All the prerogatives necessary for the safety and protection of the people, the administration of the
law, and the conduct of public affairs in and for Victoria, under our system of responsible government,
have passed as an incident to the grant of self-government (without which the grant itself would be of
no effect) and may be exercised by the representative of the Crown in the advice of responsible 50
ministers.

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These two quotations embody the belief which was held until lately in Victoria; the majority of our own
Supreme Court overruled this reading. Mr. Justice Williams said:
I have been for years in common with, I believe, very many others, under the delusion (as I must term
it) that we enjoyed in this colony responsible government in the proper sense of the term. I awake to
find, as far as my opinion goes, that we have merely an instalment of responsible government. 5
Mr. Justice Holroyd considers that we have only a measure of self-government, and two other judges
concur. My colleague, Mr. Wrixon, who argued the case with great force and ability before the Privy
Council, says:
If the reading put by the Supreme Court in Victoria upon our Constitution Act be correct, then not
only in the colony of Victoria, but in all the groups of Australasian colonies, the governments which we 10
now enjoy are without warrant of law.
END QUOTE

The delusion amongst not just politicians but also amongst judges is that State Parliaments can
amend their own legislation by ordinary legislation whereas the Framers of the Constitution 15
made clear:
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 20
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 25
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. 30
END QUOTE

This is relevant because if the State of Victoria provided a reference of legislative powers to the
Commonwealth regarding industrial relations then it would be without legal basis, as by this the
State would also have removed part of the judicial powers of the Supreme Court of Victoria to 35
which it has no power to do so (consider also the Kabledecision).
As the Victorian constitution act 1975 was not approved by state referendum it therefore cannot
be deemed to be valid.
As an example I will set out some matters first:
40
QUOTE 20140625-G. H. Schorel-Hlavka O.W.B. to Mr Chernov Governor of Victoria-Where is the evidence-
etc
What we have is that States are being bullied by the Commonwealth as this goes on and on because the States
really lack any proper leadership to place before the courts what really is constitutionally applicable. But the
States likewise are legislating at times utter and sheer nonsense because again there is a lack of 45
understanding/knowledge and leadership. Billions of dollars spend on Ministers, Members of Parliament,
public servants and somehow not a single person seems to have any reasonable
understanding./comprehension of the true meaning and application of the constitution and so decisions are
made not on basis of FACTS but on whatever is perceived to be applicable often without any evidence to
rely upon. 50

When I look upon some of the provisions of the constitution act 1975 then I wonder who on earth had
the knowledge and understanding or the lack thereof to create such a kind of constitution act?
.

Page 12
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I would be the first to admit that I am not a scientist in human heritage, etc, but surely it is common
knowledge that Aboriginals have a DNA that also relates to the DEVISOVA race as was located to exist in
Russia. We also have the Hobbits that were located in Indonesia area and we have the Red Dear Cave
People of Asia (also known as the Enigma People), the Pekin Man, then there are those referring to the
LONGLIN People. Beyond doubt we will in time likely uncover more past and perhaps present races. After 5
all the current conclusion was that in the Red Deer Cave there were human bones that neither belonged to the
present human race nor to the Enigma race. As such we do simply not know if the DEVISOVA race where
the first people of what is now known as the Commonwealth of Australia (formally New Holland) and later
were so to say exterminated by other races such as those we now refer to as Aboriginals. The cross breading
of races can be drawn from the fact that Aboriginals have (as was reported) a considerable portion of the 10
DNA of the DEVISONA race. As such one may state they are half cast, which the Framers of the
Constitution already acknowledged were residing in Asia and Africa also.

Considering that the constitution act 1975 is post 1967 ss51(xxvi) successful referendum then in any event
the State of Victoria had no legislative powers as to Aboriginal race. 15

QUOTE
The Hon. R.E. O'CONNOR (New South Wales)[3.18]: The moment the commonwealth
exercises the power, the states must retire from that field of legislation. 20
END QUOTE
.
QUOTE Mr. REID:
We must make it clear that the moment the Federal Parliament legislates on one of those points 25
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 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 30
.
QUOTE
The Hon. R.E. O'CONNOR (New South Wales)[3.18]: We ought to be careful not to load the
commonwealth with any more duties than are absolutely necessary. Although it is quite true that 35
this power is permissive, you will always find that if once power is given to the commonwealth to
legislate on a particular question, there will be continual pressure brought to bear on the
commonwealth to exercise that power. The moment the commonwealth exercises the power, the
states must retire from that field of legislation.
END QUOTE 40
.
QUOTE
Mr. OCONNOR.-Directly it is exercised it becomes an exclusive power, and there is no doubt
that it will be exercised. 45
END QUOTE

QUOTE
Mr. BARTON.-I was going to explain when I was interrupted that the moment the 50
Commonwealth legislates on this subject the power will become exclusive.
END QUOTE

QUOTE 55
Mr. BARTON (New South Wales).-If this is left as an exclusive power the laws of the states will
nevertheless remain in force under clause 100.
Mr. TRENWITH.-Would the states still proceed to make laws?

Page 13
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Mr. BARTON.-Not after this power of legislation comes into force. Their existing laws will,
however, remain. If this is exclusive they can make no new laws, but the necessity of making these
new laws will be all the more forced on the Commonwealth.
END QUOTE
5
Therefore this part 1A clearly is and remains unconstitutional and even by State
Referendum this part would be and remain to be ULTRA VI RES.

Version No. 204, Constitution Act 1975, No. 8750 of 1975
Version incorporating amendments as at 1 February 2014 10
QUOTE
1A Recognition of Aboriginal people
(1) The Parliament acknowledges that the events described in the preamble to this Act occurred
without proper consultation, recognition or involvement of the Aboriginal people of Victoria.
(2) The Parliament recognises that Victoria's Aboriginal people, as the original custodians of the land 15
on which the Colony of Victoria was established
(a) have a unique status as the descendants of Australia's first people; and
(b) have a spiritual, social, cultural and economic relationship with their traditional lands and waters
within Victoria; and
(c) have made a unique and irreplaceable contribution to the identity and well-being of Victoria. 20
(3) The Parliament does not intend by this section
(a) to create in any person any legal right or give rise to any civil cause of action; or
(b) to affect in any way the interpretation of this Act or of any other law in force in Victoria.
END QUOTE
25
Firstly, as I have already in previous correspondence set out the validity of the constitution
act 1975 is in question, but I shall briefly refer to this again. But what on earth is the use of
placing a Section in a legislation if it is not intended to be legally enforceable.
OK, I get it, the Parliament somehow had a sudden wisdom that it couldnt alter the
Victorian Constitution Act 1855 and insert a preamble (as it is a UK constitution act) and 30
so decided the next best thing was to insert this as I view it crazy section.

Version incorporating amendments as at 1 February 2014
QUOTE 35
Version No. 204
Constitution Act 1975
No. 8750 of 1975
The Parliament of Victoria enacts as follows: 40
Preamble
WHEREAS the Legislative Council of the Colony of Victoria did in the year 1854 pass a Bill intituled
"An Act to establish a Constitution in and for the colony for Victoria":
And whereas the said Bill was presented to the then Lieutenant-Governor of Victoria for Her
Majesty's assent and the said Lieutenant-Governor did thereupon declare that he reserved the said Bill 45
for the signification of Her Majesty's pleasure thereon:
And whereas the Imperial Parliament deemed it expedient to authorize Her Majesty to assent to the
said reserved Bill amended by the omission of certain provisions thereof:
And whereas the said Bill as amended was set forth in a Schedule to an Act of the Imperial Parliament
passed in the 18th and 19th years of the reign of Her Majesty Queen Victoria intituled "An Act to 50
enable Her Majesty to Assent to a Bill, as amended, of the Legislature of Victoria to establish a
Constitution in and for the Colony of Victoria" by which Act Her Majesty in Council was authorized
to assent to the said reserved Bill amended by the omission of certain provisions thereof, and the Bill
was assented to accordingly:
And whereas by the said Bill as so amended the Colony of Victoria was established as a self- 55
governing colony with responsible government:
And whereas the said Bill as so amended is the Constitution of Victoria and is known as The
Constitution Act:

Page 14
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And whereas it is provided by section LX of the said The Constitution Act that the Legislature
of Victoria has full power and authority from time to time by any Act or Acts to repeal alter or
vary all or any of the provisions of The Constitution Act and to substitute others in lieu thereof:
END QUOTE
5
Burt as I have set out in previous correspondence this act predated the federation and the Commonwealth of
Australia Constitution Act 1900 (UK) being a later enactment then overrides the Victorian Constitution Act
1855 and as s106 states subject to this constitution

Commonwealth of Australia Constitution Act 1900 (UK) 10
QUOTE
106 Saving of Constitutions
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 15
State, as the case may be, until altered in accordance with the
Constitution of the State.
END QUOTE

I have always acknowledged to use a crummy English and not having had any formal 20
education in legal studies, but surely anyone with a decent education in legal studies ought
to understand that under the British rules of legislation any act that is subsequently passed
automatically may override a previous act for so far there is a conflict between the earlier
act and the subsequent act. There are ample of authorities on this but I have no intention to
quote them all as any lawyer who doesnt even grasp this I view better give back the law 25
degree he/she may have been issued.

QUOTE 30
Be it therefore enacted by the Queen's Most Excellent Majesty by and with the
advice and consent of the Legislative Council and the Legislative Assembly of
Victoria in this present Parliament assembled and by the authority of the same as
follows (that is to say):
END QUOTE 35

Therefore this part just quoted has absolutely no value because it defies constitutional
provisions and again I quote the Framers of the Constitution:
.
QUOTE
Mr. GORDON.-Well, I think not. I am sure that if the honorable member applies his mind to the
subject he will see it is not abstruse. If a statute of either the Federal or the states Parliament be
taken into court the court is bound to give an interpretation according to the strict hyper- 45
refinements of the law. It may be a good law passed by "the sovereign will of the people," although
that latter phrase is a common one which I do not care much about. The court may say-"It is a good
law, but as it technically infringes on the Constitution we will have to wipe it out." As I have said,
the proposal I support retains some remnant of parliamentary sovereignty, leaving it to the will of
Parliament on either side to attack each other's laws. 50
END QUOTE

QUOTE Mr. THYNNE:
The constitution of this federation will not be charged with the duty of resisting privileged 55
classes, for the whole power will be vested in the people themselves. They are the complete

Page 15
A 1
st
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 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 5
sovereignty of the states, they will be charged with the full power and dignity of the state, and it is
from them that we must seek the giving to each of those bodies that will be in existence concurrently
the necessary powers for their proper management and existence. Each assembly, each legislature,
whether state or federal existing under this constitution, will be as Dicey again says-a merely
subordinate law-making body whose laws will be valid, whilst within the authority conferred 10
upon it by the constitution, but invalid and unconstitutional if they go beyond the limits of such
authority.
END QUOTE

QUOTE
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 20
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: 25
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
30
QUOTE
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 35
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 40
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 45
.
QUOTE
Mr. BARTON.-Yes, since then, as is pointed out in a little handbook which my honorable friend 50
lent me. But the question for us to consider is whether a court like the Federal High Court or the Privy
Council would ever come to such a conclusion. One would think it highly improbable. The real
question that may arise under this Constitution is whether the Commonwealth can make a law
establishing or prohibiting the free exercise of any religion. I take it that in the absence of a
provision in the Constitution conferring that power upon the Commonwealth it will be 55
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 a prohibition against the exercise of such a power.
END QUOTE
60

Page 16
A 1
st
QUOTE
Mr. BARTON.-I was going to explain when I was interrupted that the moment the
Commonwealth legislates on this subject the power will become exclusive.
END QUOTE
5
QUOTE
Mr. BARTON (New South Wales).-If this is left as an exclusive power the laws of the states will
Mr. TRENWITH.-Would the states still proceed to make laws? 10
Mr. BARTON.-Not after this power of legislation comes into force. Their existing laws will,
however, remain. If this is exclusive they can make no new laws, but the necessity of making these
new laws will be all the more forced on the Commonwealth.
END QUOTE
15
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. 20
END QUOTE
.
QUOTE
Mr. HIGGINS.-No, because the Constitution is not passed by the Parliament. 25
END QUOTE
.
QUOTE
Mr. GORDON.- The court may say-"It is a good law, but as it technically infringes on the 30
Constitution we will have to wipe it out."
END QUOTE

Therefore, I cannot accept that the purported constitution act 1975 is a valid act, this as the
sovereign Parliament is no more, since federation. 35
The reference below to the Victorian Constitution Act 1955 ought to be read as 1855, as it
was a typing error.

QUOTE EMAIL24-6-2014
To Alan RileyMe 40
Today at 7:29 PM
Alan,

Alan Riley You may disagree with the content of
http://www.peoplesmandate.iinet.net.au/VICTORIA_CONSTITUTION_1975_IS_IT 45
_LEGAL.html . The reason I send that link to you is for what is quoted below which
I gave va
Today at 7:18 PM
Me Alan, I am aware of this for some time and have as yet not been provided or
located any documentation that proves otherwise. as such I view the Victorian 50
Constitution Act 1955 is still valid and appli
To Alan RileyMe
Today at 7:29 PM

Page 17
A 1
st
Alan,
I am aware of this for some time and have as yet not been provided or located any
documentation that proves otherwise. as such I view the Victorian Constitution Act
1955 is still valid and applicable albeit subject to the Commonwealth of Australia
Constitution Act 1900 (UK). the problem we have is that most lawyers/politicians 5
have been brainwashed since childhood that the Victorian Constitution Act 1855 is
no longer applicable. We also saw the crazy conduct by the then Premier Peter
Beattie of Queensland to somehow go back to the former Colonial constitution as to
replace this with the 2001 Queensland Constitution act. I canvassed this and its
unconstitutional conduct in the Colosimo case, this because of my concerns that Her 10
Honour Harbison J otherwise may rely upon the Burn's case (Queensland).

Gerrit

Constitutionalist & Consultant 15

MAY JUSTICE ALWAYS PREVAIL
Mr. G. H. Schorel-Hlavka O.W.B., GUARDIAN
(OFFICE-OF-THE-GUARDIAN)
107 Graham Road, Viewbank, 3084, Victoria, Australia 20
Ph (International) 61394577209
.
Email; inspector_rikati@yahoo.com.au

The content of this email and any attachments are provided WI THOUT PREJ UDI CE, unless 25
specifically otherwise stated.

If you find any typing/grammatical errors then I know you read it, all you now need to do is to
consider the content appropriately!
30
A FOOL IS A PERSON WHO DOESN'T ASK THE QUESTION BECAUSE OF BEING
CONCERNED TO BE LABELLED A FOOL.

On Tuesday, 24 June 2014 7:18 PM, Alan Riley <ariley59@bigpond.com> wrote: 35

You may disagree with the content of
http://www.peoplesmandate.iinet.net.au/VICTORIA_CONSTITUTION_1975_IS_IT_LEGA
L.html .
The reason I send that link to you is for what is quoted below which I gave vague reference 40
to a few days ago by email with regards to a letter sent to London and the one received from
London regarding the 1855 Vic Constitution still being on the statute book records there. I
still am unsure who wrote the letter to London and date of reply by the said Archivist.

Quote 45
Our research of Hansard, of the Westminster Parliament which is the only authority that
could lawfully repeal The Victorian Constitution Act 1855, shows no mention, at all, of any
such repeal.
Indeed, further correspondence from an Archivist at the House of Lords Records Office is
even more damning, it states that according to the Chronological Table of Statutes, the 50
Victorian Constitution Act 1855 is still wholly in force. There is not even any mention of a
partial repeal.
End Quote
END QUOTE

Page 18
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END QUOTE 20140625-G. H. Schorel-Hlavka O.W.B. to Mr Chernov Governor of Victoria-Where is the
evidence-etc

Therefore, if the State of Victoria had no legislative powers to amend the Victorian constitution 5
act 1855 but only can propose an amendment with consent by State referendum then the 1855
constitution act would have altered from a act of a sovereign Parliament to now being subject
to s1o6 of the Constitution and therefore the state parliament had no legislative powers to replace
part or all of it by way of Victorian constitution act 1975.
Neither can it as a constitutional Parliament unilaterally refer legislative powers to the 10
Commonwealth of Australia without a State referendum approving this as it would to also
remove certain judicial powers from the Supreme Court of Victoria.

Whilst various Royal Commissions have been held into industrial relations, etc, the question is 15
if they were constitutionally valid. After all, Federal Parliament and/or State Parliaments could
have passed any Bill it likes, it could have been given Royal Assent but that doesnt make it
constitutionally valid to be used for whatever to whatever extent politicians may think upon.
However, in my submission the commissioner conducting this Royal Commission may not I
view be a fit and proper person to conduct this Royal Commission, this as I view that this 20
commissioner as a judge of the High Court of Australia demonstrated not to be impartial and
neither seemed to be competent in interpreting the true meaning and application of the
constitution as per legal principles embedded in the constitution. And failing to correct matters or
to place on record what ought to have been done by an impartial judge. Hence, I will below set
out some matters relied upon. 25
.
QUOTE Duncan v Queensland (1916) 22 CLR 556, 582 (per Griffith C.J.)
That case (a previous decision of the High Court, Foggit, Jones & Co v NSW (1915) 21 CLR 357) was
very briefly, and I regret to say, insufficiently argued and considered on the last day of the Sydney
sitting..... The arguments which now commend themselves to me as conclusive did not find entrance to 30
my mind. In my judgment that case was wrongly decided, and should be overruled.
END QUOTE

While the High Court of Australia may have its convention not to go against a decision of
previous judges of the High Court of Australia, to me this can never be accepted as appropriate. I 35
view a judge (see also Fosters principle below) must acknowledge the true meaning and
application of the constitution regardless what previous judges may have stated otherwise. Not to
do so would allow politicians to triumph with their political mastery to appoint judges who may
lack the calibre of independence and are so to say mere lapdogs for a political goal of politicians
in power. The very purpose of the High Court of Australia being created within the constitution 40
itself and not under the political wimps of politicians was to ensure to have a fearless impartial
court. Regretfully, over time I view this no longer exist. In my submission the commissioner
being a former judge of the High Court of Australia by this himself failed to act when he should
have. To remain silent when one should have spoken up in itself can be deemed to be a co-
conspirator of a misdeed. 45
We have a corporate (under the District of Columbia) Federal Government which in itself
prevent it to govern within the context of the Commonwealth of Australia Constitution Act
1900 (UK). Itself in breach of s44 of the constitution! We have corporate Courts using ABN
numbers which also is unconstitutional, as well as that no corporation can pronounce judgments
as a court of law. Besides the fact that the GST is in violation of the intentions of the Framers of 50
the Constitution, something I have written extensively about in my books published in the
INSPECTOR-RIKATI series on certain constitutional and other legal issues and hence no

Page 19
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need to delve into all this in this submission, the fact remains that there is within the constitution
no legal mechanism to tax the courts. Hence no taxation on the judiciary, including GST, can be
constitutionally justified.
QUOTE 5
114 States may not raise forces. Taxation of property of
Commonwealth or State
A State shall not, without the consent of the Parliament of the
Commonwealth, raise or maintain any naval or military force, or
impose any tax on property of any kind belonging to the 10
Commonwealth, nor shall the Commonwealth impose any tax on
property of any kind belonging to a State.
END QUOTE

No such equivalent exists in regard of the judiciary. To allow any form of taxation upon the 15
judiciary would mean it could be used to manipulate the judiciary.
While the administrative arm of the judiciary may be subject to taxation, for so far provided to
the judiciary by the relevant Government, no taxation can be laid against the courts.
HANSARD 3-4-1891 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention) 20
QUOTE
Sub-clause 13. Banking, the incorporation of banks, and the issue of paper money.
Colonel SMITH: I should like to ask the hon. member, Sir Samuel Griffith, if the word "banking"
covers the possibility of establishing a bank for the commonwealth?
Sir SAMUEL GRIFFITH: I should think not! 25
END QUOTE
.
We found that the Commonwealth nevertheless established its own Commonwealth Bank and
then sold it off
30
QUOTE
Mr. MUNRO: We have agreed to sub-clause 13, dealing with the incorporation of banks, and I do not see
why a similar provision should not be made in regard to the incorporation of companies. Why should they not 35
be under the control of federal officers? At the present time the law as to incorporation is different in the
different colonies, and the result is [start page 686] extremely unsatisfactory in many cases. I do not see
why we should not make the same provision in regard to the incorporation of companies as we have made in
regard to the incorporation of banks. We might introduce at the commencement of the sub-clause words to
this effect: "The registration or incorporation of companies." 40
Sir SAMUEL GRIFFITH: I do not think we should. There are a great number of different corporations.
For instance, there are municipal, trading, and charitable corporations, and these are all incorporated in
different ways according to the law obtaining in the different states.
Mr. MUNRO: But as to trading corporations!
Sir SAMUEL GRIFFITH: It is sometimes difficult to say what is a trading corporation. What is 45
important, however, is that there should be a uniform law for the recognition of corporations. Some states
might require an elaborate form, the payment of heavy fees, and certain guarantees as to the stability
of members, while another state might not think it worth its while to take so much trouble, having
regard to its different circumstances. I think the states may be trusted to stipulate how they will
incorporate companies, although we ought to have some general law in regard to their recognition. 50
Sir JOHN BRAY: I think the point raised by the hon. member, Mr. Munro, is worth a little more
consideration than hon. members seem disposed to bestow upon it. We know what some of these corporations
are; and I think joint-stock companies might be incorporated upon some uniform method. In South Australia,

Page 20
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a banking company is not allowed to be incorporated under the Companies Act; still, there is nothing in
Victoria of which I am aware to prevent a banking company from being registered there as a limited company
and opening a branch in South Australia a few days afterwards. I think it is necessary, therefore, to have some
uniform law. There is nothing in which the public should have more confidence than in banks which are in
any way recognised by the state; and I think we should have some uniform system of incorporating 5
banks. Many companies, although doing business under different names, are, in reality, banks.
Mr. MUNRO: The banks are incorporated under the Companies Act in Victoria!
Sir JOHN BRAY: You can establish financial companies, which you do not call banks, but which answer
all the purposes of banks. We have provided that the federal parliament shall legislate as to the
incorporation of banks; but there is nothing to prevent the incorporation by the states themselves, quite 10
apart from the federal parliament, of trading companies which will do all the ordinary business of banks. If it
is desirable to intrust legislation as to the incorporation of banks to the federal government, there is no reason
why we should not say that the registration of financial companies doing all the business of banks should be
dealt with in the same manner.
Sub-clause agreed to. 15
END QUOTE

We found that the Commonwealth somehow with consent by the High Court of Australia 2006
WorkChoices decision can use the provisions of subsection 51(xx) for other purposes than what
was intended by the Framers of the Constitution, in fact contrary to it, as shown to some extend 20
below.
QUOTE
(xx) foreign corporations, and trading or financial corporations
formed within the limits of the Commonwealth; 25
END QUOTE

Is therefore courts, including the High court of Australia now to be deemed a corporation and so
the Commonwealth can interfere with the judiciary, say blackmail it to hand down decisions in
its favour of suffer taxation consequences? I do not accept this nonsense, as the High Court of 30
Australia was created not as a third department of government but contrary to it as the third
entity within the constitution separated from the legislators and the executives. The Inter-State
commission could be considered as the 4
th
entity within the Constitution as it contrary to the
Parliament and the executives may act without being bound to uniform application, and its
decisions can only be appeal upon an error of law, as like with the executive (government) and 35
the Parliament.

This Royal Commission appears to me to be set up as some political witch-hunt and this is
extremely dangerous for any democracy. This also if as I view it the commissioner himself is
or can be seen to be bias. 40

QUOTE Sir JOHN DOWNER.-
It has been thought well that there should be a uniform law throughout Australia in respect to the
citizens of Australia, and it was considered that this provision should be put into a separate clause 45
giving exclusive powers, in order to emphasize the fact that the Federal Parliament should legislate
upon this matter.
END QUOTE
.
QUOTE Mr. ISAACS (Victoria).-

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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
. 5
QUOTE
Mr. MCMILLAN: I think the reading of the sub-section is clear.
The reductions may be on a sliding scale, but they must always be uniform. 10
END QUOTE
And
QUOTE 15
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 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. 20
END QUOTE
.
QUOTE Mr. BARTON.-
But it is a fair corollary to the provision for dealing with the revenue for the first five years after the 25
imposition of uniform duties of customs, and further reflection has led me to the conclusion that, on the
whole, it will be a useful and beneficial provision.
END QUOTE
And
Hansard 17-3-1898 Constitution Convention Debates 30
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 am willing to concede, be found to work with some hardship upon the states 35
for some years, unless their own rights to give bounties were to some extent preserved.
END QUOTE

QUOTE Sir SAMUEL GRIFFITH: 40
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
45
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.
END QUOTE 50

QUOTE Mr. BARTON (New South Wales).-
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 states, or between goods passing 55
from one state to another."
END QUOTE

Page 22
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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." 5

The amendment was agreed to.

The clause, as amended, was agreed to.
END QUOTE 10
Then, on 16-3-1898 is appears to have been amended, without further discussion but approved
off by voting, from;
QUOTE
Taxation; but not so as to discriminate between states or parts of states, or between persons
or things passing from one state to another. 15
END QUOTE
To
QUOTE
Taxation; but not so as to discriminate between states or parts of states
END QUOTE 20
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;

or between persons or things from one state or another 25

then clearly entails that there can be no difference in taxation between persons, and as such
neither one person having a tax free income, partly or wholly while another having the same
income is required to pay more tax.
30
QUOTE
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 35
Tariff or any taxation imposed shall be uniform throughout the Commonwealth, so it should be
provided with reference to trade and 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 40
protect the trade and commerce sub-section by not doing anything which will limit its effect. That is the real
logical position.
END QUOTE

Judges as like politicians and others employed within the Commonwealth of Australia should 45
have no such thing as tax free incomes, because they should as like any other citizen pay tax.
They are not paying taxation as a judge or as a legislator but are paying tax as a citizen having an
income that is taxable as like any other citizen.
Therefore, taxation upon the courts would be unconstitutional and unnecessary because those
employed in whatever job would be liable to pay tax as a citizen pending the level of income 50
being taxed against others. In fact to exclude judges from taxation could in itself be deemed a
form of bribery.

Filing fees set by the parliament a form of taxation interfering with the ability of some
citizen to litigate. 55

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Also, as set out below, where I filed an application within s75(v) of the constitution, a right the
Framers of the Constitution guaranteed in the constitution then judges as I view it manipulate
their powers to try to use legal technicalities to deny a citizen this constitutional right. That is not
in my view the powers of the High Court of Australia.
QUOTE Schorel v Elms (1994) Unreported M2944X of 1989 SA27 of 1993 Page 16 and 17: - 5
Justice must not only be done but must be seen to be done
END QUOTE
.
QUOTE Neil v Nott (1994) 68 ALJR 509 at 510 (High Court)
A frequent consequence of self representation is that the court must assume the burden of endeavouring to 10
ascertain the rights of the parties which are obfuscated by their own advocacy
END QUOTE

While the Family Court of Australia was set up where the Parliament at the time opposed a fee,
nevertheless this now has become the norm. Worse, self-represented litigants are often subjected 15
to legal cost of the other party. And I am not aware the High Court of Australia opposed this,
where a litigant to poor to afford legal representation and forced to do his/her own then is
subjected to pay the other parties legal representation.
We lack impartial courts to hear and determine matters as was intended by the framers of the
Constitution. And as I understood it Mason CJ himself admitted that the High Court of Australia 20
would hand down judgments where it sought to cover issues where it held the Parliament should
have legislated but had failed to do so. As such the High Court of Australia, albeit
unconstitutionally, interfered with the legislators exclusive powers.
.
QUOTE Mr. HIGGINS:
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
And 30
Convention)
QUOTE Mr. ISAACS.-
We want a people's Constitution, not a lawyers' Constitution.
END QUOTE 35
And
QUOTE
Mr. CARRUTHERS:
This is a Constitution which the unlettered people of the community ought to be able to understand. 40
END QUOTE

So, here we have it that the legal principle embedded in the constitution is that unlettered
people of the community ought to be able to understand the constitution, and so this includes any
legislation enacted within the powers provided for within the constitution to federal and or State 45
parliaments and yet I am not aware that the High Court of Australia bothered to enforce this and
struck down legislation because it was in blatant violation of this legal principle.
To the contrary the High Court of Australia will often award cost against a person (who lost the
argument) who seeks clarification of what legislation is about.
If however the High Court of Australia had first of all clamped down on vague and aloof 50
legislation then it could by this actually have prevented a huge number of litigation to eventuate
as the legislation would be so to say pure and simple.
As such the commissioner by this also as a member of the High Court of Australia in my view
failed to enforce the relevant legal principles embedded in the constitution. How can I then
accept this commissioner will do any better as a commissioner in this Royal Commission? 55

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It appears to me the commissioner was bias or deemed to be bias not to ensure that the legislators
provided for legislation that was as such that unlettered people could understand it. As a matter
of fact, generally both parties are represented before the High Court of Australia and still those
lawyers, no matter their experiences still will have extreme difficulties to understand what
legislation is about. So, it underlines that if not just unlettered persons but even many highly 5
educated lawyers still are unable to understand what the constitution and/or any legislation is
about then obviously, in my view, the High Court of Australia failed to ensure the Parliament(s)
provided appropriate legislation.
For example, had there been a litigation before the High Court of Australia involving a
government, it could have simply dismissed the case on the basis the relevant legislation is 10
beyond the understanding of the unlettered person and therefore cannot be enforced. If the High
Court of Australia had followed this kind of reasoning then the Parliament(s) may have acted to
ensure their legislation would be in plain English. And the result would beyond doubt have been
a considerable drop in litigation about the meaning and application of legislation.
Therefore, I view, there was an inhered bias by the judiciary to still fail to enforce this. And the 15
commissioner having been for so long part of the judiciary cannot in my view excuse himself
from such astronomical failure within the judiciary. And, as such I expect no less but the same
may flow from this Royal Commission. (See also matters set out below)
To deny however a s75(v) application (perhaps because the court may consider to be overloaded
with litigation cases) instead of conducting proper management, to use legal technicalities to 20
railroad a citizens constitutional right in my view is but utterly deplorable. One that now has
resulted to many an Australian soldier having been killed in Iraq and Afghanistan which could
have been avoided had the High court of Australia instead heard and determined s75(v)
applications upon their merits, rather than to merely assume it, as was done with the so called
independence of the Commonwealth of Australia. (in Sue v Hill) 25
Where indeed within the constitution is there any provision for the High Court of Australia to
adjudicate outside the framework of the constitution?
In my view such provision doesnt and never did exist, and the judiciary can only exercise
judicial powers within the context of the constitution. Hence, I view that the judges in Sue v Hill
committed treason. Then any judge who nevertheless went along with this in my view also 30
committed treason.
If the Commonwealth of Australia was held by the Framers of the Constitution to be:
QUOTE
Mr. SYMON ( South Australia ).- 35
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 40
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 45

QUOTE In the Marriage of P.N. and J.S. Axtell 7 FLR 931
The test of judicial bias as laid down by the high court is whether it has been established that it might
reasonably be suspected by a fair minded person that the judge might not resolve the question before him
with a fair and unprejudiced mind 50
END QUOTE

The book "Law Made Simple" by Colin F. Padfield, LL.B.,D.P.A.(Lond.) on page 55:
QUOTE

Page 25
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"The Rule against Bias. A true judicial decision can be reached only if the judge himself is impartial. This is
an obvious requirement in a court of law or a tribunal. In R. v Rand (1866) it was held that a judge is
disqualified where (i) he has a direct pecuniary interest, however small, in the subject-matter in dispute; or (ii)
there is real likelihood that the judge would have a bias in favour of one of the parties.
5
For example, if a judge is related to, or is a friend of, one of the parties to a dispute there would be real
likelihood of bias. It is immaterial whether a judicial decision was in fact biased, for as was said by Lord
Chief Justice Heward in R. v Sussex Justices, ex parte McCarthy (1924): 'Justice should not only be done, but
should manifestly and undoubtedly be seen to be done.'
10
As an example of pecuniary bias we may quote:

Dimes v. Grand Junction Canal (1852). Lord Chancellor Cottenham made decrees in a Chancery suit in
favour of a canal company. Lord Cottenham held several shares in the company. Held: (by the House of
Lords): that the decrees be set aside on the ground of pecurniary interest. No bias was proved in fact, nor 15
could it be shown that Lord Cottenham was in any way influenced by his shareholding.

As an example of likelihood of bias we may quote:

R. v Sussex Justices, ex parte McCarthy (1924). A was summoned before magistrates for a motoring 20
offence. The acting clerk to the justices was a member of a firm of solicitors representing A in civil
proceedings arising out of the same accident. The acting clerk did not advise the magistrates, but he retired
with them to consider their decision. Held: that as the acting clerk was connected with the case in the civil
action he ought not to advise the magistrates in the criminal prosecution. Conviction accordingly quashed,
despite the fact that the acting clerk took no part in the decision to convict and had not been asked by the 25
justices to give his opinion or advice. "
END QUOTE
.
Dimes v. Proprietors of the Grand Junction Canal (1852) 3 II,L.C. 759
QUOTE 30
The fundamental rule of English (Australian) law is that "No man can be a judge in his own case". It has
long been held that if there is bias or the appearance of bias such as to deny justice or create the impression
that justice has not been done, then that bias, or apparent bias, is sufficient to invalidate the decision of
those who made the decision.
END QUOTE 35
Reg v. The London County Council (1894) XI .L.R. 24
Sharp v. Carey (1897) 23 V.L.R. 248 Austin Digest 17.
Reg. v. Moleswort (1893) 23 V.L.R. 582 Austin Digest 17.
Black v. Black (1951) N.Z.L.R. 723
Ex Parte Blume (1958) W.N. (N.S.W.) 411Austin Digest 93,339,457,458 40
.
QUOTE R v. Lusink and another; Ex Parte Shaw (1980) 6 FLR 235 and 236
However in some cases the words or conduct of a judge may be such as to lead the parties reasonably to think
that the judge has prejudged an important question in the case, and then prohibition may issue. Of course, the
court which is asked to grant prohibition will not lightly conclude that the judge may reasonably be suspected of 45
bias in this sense; it must be "firmly established" that such a suspicion may reasonably be engendered in the
minds of the parties or the public, as was made clear by the court in R v Commonwealth Conciliation and
Arbitration Commission; Ex Parte Angliss Group (1969) 122 CLR 546 at 553-4, in the passage cited in R v
Watson; Ex Parte Armstrong (132 CLR at 262).
The critical question, however, is not whether a judge believes he or she has prejudged a question, but 50
whether that is what a party or the public might reasonably suspect has occurred (see per Lord Denning
MR in Metropolitan Properties Co. (FGC Ltd v Lannon (1969) 1 QB 577 at 599, a judgement cited with
approval by this court in R v Commonwealth Conciliation and Arbitration Commission; Ex Parte Angliss
Group (1969) 122 CLR 546 at 553; In some circumstances repeated denials of prejudging might well convey
the impression of "protesting to much... 55
END QUOTE

If the commissioner assumes jurisdiction to investigate matters/issues as a Royal
Commissioner merely because the Government may have established a Royal Commission then
this itself may be considered bias, if in fact constitutionally such powers provided to the Royal 60

Page 26
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Commission in fact are outside the powers of the Commonwealth. The mere enactment of
legislation itself cannot create legislative powers for a Parliament if in the first place no such
extensive powers existed.
For example, say a Royal Commission into water providers providing safe drink water would in
my view be outside the constitutional powers of the Commonwealth. This as it would be a State 5
matter.

QUOTE 10
Mr. O'CONNOR: I should certainly be altogether opposed to enacting anything in the Constitution
which would make either House at any time merely subservient to the purposes of any Government,
(Hear, hear.) The public interest stands higher than that. My only reason for proposing this mechanical
method of getting rid of the difficulty is that it is to the public interest that the country should have the
question settled one way or the other. 15
END QUOTE

While the High Court of Australia as I understand it has ruled that the Commonwealth can
provide for regulations, etc, such as exercising part of Australia for immigration purposes, I view
this would be unconstitutional because it would be that the Government (executives) can 20
dominate the Parliament as to what the law will/might be. The Government can only act within
legislative powers provided and no further. Hence, any Royal Commission can only be
authorised within any valid legislative provision and not beyond it, regardless if the Federal
Government may desire to do so for political reason such as to pursue a political witch-hunt.
Therefore, the issue of jurisdiction by the Royal Commission is critical to its exercise of 25
powers. In my submission this Royal Commission cannot proceed unless it first deals with the
issue of jurisdiction and hand down a ruling in this regard. Failing to do so will in my
submission nullify any further conduct by this Royal Commission.
It is called a Royal Commission and hence it must set out in regard of if it is to have
jurisdiction or not what kind of Royal Commission is it exercising. After all, where the Royal 30
Commission operates under the British Crown then consider Sue v Hill (I do not seek to imply
that I concede that this was a constitutional valid judgment) or if it is under the purported Queen
of Australia then where is the constitutionally validity for a constitutional monarchy where
the Framers of the Constitution specifically excluded any such establishment within the
Commonwealth of Australia Constitution Act 1900 (UK) 35
.
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 40
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 45
END QUOTE
. 50
Then without any amendment to the Commonwealth of Australia Constitution Act 1900 (UK)
by way of amendment constitution act no different version of a constitution can be entertained.
And s128 did not facilitate any such amendment to alter from British Crown to some purported

Page 27
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Queen of Australia Australian monarchy. S128 was not a section that could be used to alter
anything but only the preceding 127 sections as well as s128 but no further. Not even amend the
preamble!
Whatever Quick & Garran may have set out in their publication afterwards is to no affect where
it comes to the actual Hansard Debates records. In my view it is bias by any judge to pick out 5
something to try to get a certain outcome rather than to consider all relevant details. Indeed, as I
did set out in my books, some Chapters quoted below, the High Court of Australia in the 2006
WorkChoices case was taking statements by the Framers of the Constitution out of context. This
I consider a bias towards the Commonwealth.
10
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 15
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
.
As such any commissioner who purports to act within powers of a Royal Commission under the 20
purported Queen of Australia would in my view liable to possible criminal charges where such
Queen of Australia is not a constitutional entity. The mere fact that the High Court of Australia
may have followed suit with their so to say political masters to device a Queen of Australia
cannot make it constitutionally valid, nor can provide any jurisdiction.
Judges who were appointed within the authority of the British Crown somehow didnt change 25
their appointments retrospectively merely because of the Sue v Hill decision. And the Sue v Hill
decision was as I view it beyond the powers of the High Court of Australia as it was dealing with
the matters before it on behalf of the Federal Parliament and not ordinary as a Court of
competent jurisdiction. Therefore I view Sue v Hill was a political decision made for and on
behalf of the Federal Parliament. Hence, the lack of factual legal matters to legally justify such 30
decision.
In my submission any judge and/or formal judge who went along with this utter nonsense about a
Queen of Australia undermined our democracy and cannot be fit and proper to be a
commissioner for a Royal Commission.
. 35
QUOTE
Commonwealth -that is the political Union-"under the Crown of the United Kingdom of Great Britain 40
the admission of other colonies into the Commonwealth. That is, for admission into this political Union, 45
END QUOTE
.
And also considering that if the Commonwealth of Australia were to be an independent nation, as 50
the Westminster Act refers, albeit incorrectly to it being a dominion, then the States lose their
dominion status and be delegated as like in Canada and new Zealand as mere provinces.
Something that was not contemplated and in fact opposed by the delegates at the constitutional
convention!

Page 28
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Australasian Convention) (Chapter 33 of the CD)
QUOTE Mr. DIBBS:
" There may be something more dignified in the use of the word "state." We are not going to become
provinces. I do not think we are going to give up the individual rights and liberties which we possess, 5
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."
END QUOTE
And
QUOTE Mr. DIBBS:
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 15
preserved to each state but when you come to consider the condition of a surrender, and the question
of the power of 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.
END QUOTE
20
The criteria, in my view is that the Westminster Act, not being an Constitution Amendment Act
therefore couldnt in any shape or form amend the Commonwealth of Australia Constitution Act
1900 (UK). Neither could the purported Australia Act 1986 (UK and/or Cth version).
The mere fact that the British Parliament had legislated to hold Australian foreigners in itself not
being a Constitution Amendment Act could neither alter what the Commonwealth of Australia 25
Act 1900 (UK) provided for and hence Australians remain to be Subjects of the British Crown.

If any British legislation somehow could override a constitution act then the British Government
having signed the European Union constitution any European Union legal provision would then
also be applicable to the Commonwealth of Australia, however this never can be so as while its 30
legal provisions can be applied to the commonwealth of Australia it can only do so for so far it
doesnt conflict with the provisions of the Commonwealth of Australia Act 1900 (UK) and any
legislation enacted within this constitution. See also Aggregate I ndustries UK Ltd., R (on the application
of) v 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 judgment IN THE CAUSE, 35
SESSION 2005-06 [2005] UKHL 42 on appeal from: [2003] EWCA Civ 168.

In my view judicial officers, including those of the High Court of Australia who deliberately
stray outside their allotted judicial powers as to inflict harm upon citizens must be deemed to act
without judicial authority and be held liable as any other private citizen can be. 40

the substance of the legislation, but beyond the form of the legislation, of the different colonies, and say 45
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
END QUOTE
. 50
Therefore a (Royal) Commissioner, and those assisting, in my view could also be held liable if
acting without jurisdiction, etc.
Whatever might be wrong within the building industry cannot excuse a court so judges,
politicians, etc, then themselves to violate legal principles enshrined in the constitution
(Commonwealth of Australia Act 1900 (UK)). If unlettered citizens are deemed to know the 55

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law and cannot excuse themselves for not knowing then those trained in the field of law hardly
could excuse themselves for not knowing the law. In my view judicial officers who do not
understand/comprehend the limits of their judicial powers do not belong on a bench. If they
nevertheless persist to adjudicate then they better perform within their judicial powers and not
despite of this. 5
We have a cancer within our so called democracy because judges have ongoing ignored to
conduct matters within the bounds of the constitution. A clear example is how the Infringement
Court part of the Magistrates Court of Victoria has allowed a private company to access
Magistrates Court files and issue court orders/warrants by computer generated decisions without
any open court hearings, this even so Magistrates Courts are invested with federal jurisdiction 10
and cannot conduct hearings but as an open court unless for special circumstances the court
rules otherwise. Yet, no judicial so far had struck down those private company generated court
orders/warrants? One then has to ask why not? People lose confidence and trust in the judiciary.
On the 5
th
September 2006, the High Court in Forge v Australian Securities and I nvestments
Commission [2006] HCA 44 5 September 2006 C7/2005 made a binding ruling that there is a 15
KablePrinciple, and the KablePrinciple is that Courts must be restored to what they were.

I will now refer to Foster.
Foster (1950) S.R. (N.S.W.) 149, at p151 (Lord Denning, speaking on the role of an advocate)
QUOTE 20
As an advocate he is a minister of Justice equally with a judge, A Barrister cannot pick or choose his
clients...He must accept the brief and do all he honourably can on behalf of his client. I say 'All he
honourably can' because his duty is not only to his client. He has a duty to the court which is
paramount. It is a mistake to suppose that he is a mouthpiece of his client to say what he wants: or
his tool to do what he directs. He is none of those things. He owes his allegiance to a higher cause. It is 25
the cause of truth and Justice. He must not consciously misstate the facts. He must not knowingly
conceal the truth. He must produce all relevant authorities, even those that are against him. He must
see that his client discloses, if ordered, all relevant documents, even those that are fatal to his case. He must
disregard the specific instructions of his client, if they conflict with his duty to the court.
END QUOTE 30
Again:
QUOTE
He must not consciously misstate the facts. He must not knowingly conceal the truth. He must
produce all relevant authorities, even those that are against him. 35
END QUOTE
To me this also applies to any judicial officer.
From The Age
http://www.theage.com.au/news/Opinion/The-corporatising-of-our-courts/2005/03/23/1111525218521.html
QUOTE 40
The corporatising of our courts
Retirement speech of John K. Phillips, Supreme Court of Victoria
March 24, 2005
In his parting words from the Supreme Court bench, John D. Phillips warns of a dangerous erosion of the
court's independence. 45
For more than 14 years I have been sitting here, and it has been hard and unremitting, but exciting and
rewarding - emotionally, I hasten to add, before I am misunderstood. But for much of that time I have had to
bite my tongue.

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I refer to policy matters rather than the debate within a particular case. For, during my time on the bench, and
especially as I grew more senior, I have watched with some concern a change emerge in the perception of this
court by others and some blurring of essential distinctions. I want to speak briefly of that now because I have
been unable to say much about it until now and when my resignation becomes effective, I fear that nobody
will listen. 5
As we all know, the independence of the judiciary is a cornerstone of our constitutional system, particularly
the independence of this court, which must, from time to time, tell the political arms what they can and
cannot do according to law. As a court we will rarely, if ever, be popular with politicians, but while I have
been sitting here, I have seen what appears to me to be some erosion of this court's independence.
One of the most public examples recently was the refusal of the executive to accept the decision on 10
remuneration handed down by the tribunal established by the Parliament for the very purpose of freeing both
Parliament and the executive from the invidiousness of the decision-making process over judicial salaries and
so ensuring the independence of which I am speaking.
Less well known was the refusal of earlier governments to allow that the court's own chief executive officer
be appointed by the Governor-in-Council and its insistence that that officer be appointed by and be ultimately 15
answerable to the Department of Justice, which is what happened.
That appears now, if I may say so, to have been but part of a movement towards this court's becoming
absorbed into that department, and it is that to which I want to draw attention in particular; for such a
movement must be reversed if this court is to have, and to keep, its proper role under the constitution.
This court is not some part of the public service and it must never be seen as such. Established as a court of 20
plenary jurisdiction and with supervisory jurisdiction over all other courts and tribunals, this court is the third
arm of government, co-equal in concept with Parliament and the executive. Its role, inter alia, is to control
and to limit those other arms according to law and to that end to stand between those other arms and the
citizen. Hence the emphasis on the court's independence, especially from the executive.
Yet within the Department of Justice this court is now identified and dealt with - would you believe - as 25
"Business Unit 19" within a section labelled "courts and tribunals", a section which indiscriminately
includes all three tiers of the court structure and VCAT.
This court is subject to direction on the raising of taxes in the form of court fees - in that these are prescribed
by departmental regulation, even if a part of those fees is redirected to the court by the department at its
discretion. The other day the department used a regulation to prescribe a procedure in this court, apparently in 30
disregard, if not in defiance, of the convention that such matters are for rules of court.
And perhaps most troubling of all: the judges' computers, which were provided by and through the
department, are but part of the departmental network. I do not say that departmental officers ordinarily avail
themselves of the access that that affords; one hopes the department has some controls in place. But access is
possible, and that seems to me altogether inappropriate when the state, in one form or another, is the major 35
litigant in this court, and sometimes on matters of critical import to the wider community.
Nobody is suggesting that the executive would ever seek to influence a judge's decision directly, otherwise
than by argument in open court, but what has been happening is more insidious. What is evolving is a
perception of the court as some sort of unit or functionary within the Department of Justice, a perception
which is inconsistent with this court's fundamental role and underlying independence. 40
Indeed I think it is fair to say that the Supreme Court, despite its dominant role within the court structure and
its constitutional role vis-a-vis the other arms of government, is now seen by some in authority as no different
from a tribunal, nowadays the Victorian Civil and Administrative Tribunal in particular. That is simply not
the case; yet the distinction between a court and a tribunal has been steadily undermined over the years, and it
must be restored if the proper constitutional position is not 2to be subverted. 45
The basic distinction is easy enough. A court exercises judicial power and must be, and be seen to be,
impartial and so must be independent of all else. Accordingly, its judges are appointed once and for all, and

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ideally, without hope of additional gain or reward from anyone, including any other arm of government.
Hence Parliament's creation of the specialist remuneration tribunal. In contrast to a court, a tribunal, properly
so called, exercises administrative functions but not judicial power, and many things flow from that. Such a
tribunal may be an arm of the executive; its members may be appointed for fixed terms, with the possibility
of renewal at the discretion of the executive; and the need is not so great, to see that their remuneration is 5
fixed independently of the executive.
You will see, now, how far the distinction between court and tribunal has become blurred. While the
Victorian Civil and Administrative Tribunal is staffed by a few judges, it consists mainly of members
appointed for fixed terms, capable of renewal at the discretion of the executive - and hence my alarm when,
in addition to its administrative work, that tribunal was given some judicial power to exercise, for the latter is 10
altogether inconsistent with such a form of tenure.
There is talk now of acting judges for this court, and again, because this is a court which is exercising judicial
power, such would be anathema. It is one thing to tolerate the occasional acting appointment to this court for
a limited time or purpose; it is altogether different to institutionalise such temporary appointments at the
discretion of the executive. Judges of a court properly so called must have security of tenure or, in a relatively 15
small community like this in Victoria, the whole system is put at risk. Our courts have been remarkably free
from any taint of bias or corruption; let it remain that way. A judge must be, and be seen to be, impartial and
so must eschew all other interests which might one day give rise to conflict or the appearance of bias.
In my book, the judge must forgo the current cult of the individual: to adapt Edmund Burke, "individuals pass
like shadows, but the (institution) is fixed and stable". The judge is sometimes accused of remoteness but in 20
one sense that is no more than the reverse side of the commitment, the total commitment, which is demanded
of the appointee.
John D. Phillips is retiring as a judge of the Supreme Court of Victoria. This is part of his farewell address to
the court.
END QUOTE 25
Constitutionally there is a division between the Judiciary and the legislators and executives. No
Attorney-General has the constitutional powers to interfere with the judiciary but nevertheless
the former Attorney-General Robert Hulls and the Police Minister at the time signed a charge
with TENIX SOLUTIONS MIE Pty Ltd that it now can actually access court computers and use
them to issue Magistrate Court of Victoria court orders as well as warrants, all without any open 30
court hearing. As such the corruption into the judicial system is rife, because the government
bodies allow a private corporation to not just access court files but to even issue (albeit
unconstitutionally) court orders and warrants.

Kikonda Butema Farms Ltd v The I nspector General of Government HCT-00-CV-MA-593-2003 35
QUOTE
Constitution needles to mention is a supreme law of the land.
END QUOTE

As I understand it the Infringement Court disregard proper required legal procedures and the 40
Sheriffs Office a government Department and not at all a court officer as such but pretend to be
so as it is not independent from the executives (government) then manipulate its powers and hold
citizens at random destroying lives and families in the process. Yet courts fail to act to rectify
this.
In Agar v Dolheguy & Anor [2010] VSC 506 (11 November 2010) decision the Supreme Court 45
of Victoria held that the State parliament of Victoria validly could legislate as to speed detection
equipment where the Commonwealth had not done so. Despite what Dr Richard Brittain LLB
Executive Officer, Legal Metrology National Measurement Institute Department of Innovation,
Industry, Science and Research stated in his email to me dated 18 November 2013, I do not agree
with certain claims he makes. Indeed, I have certain serious concerns as to some of the content of 50

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the National Measurement Act 1960 (as amended) but will not at this time go into those details
as I intend to follow through with the Federal Government about certain issues. Save to say that
as a CONSTITUTIONALIST I hold the view that no matter what the Commonwealth may or
may not permit a State to do it cannot do so in violation of the constitution. Despite Agar v
Dolheguy & Anor [2010] VSC 506 (11 November 2010) I maintain that the Framers of the 5
Constitution were very clear about matters and as an example they stated:
QUOTE
Mr. BARTON.-I was going to explain when I was interrupted that the moment the Commonwealth
legislates on this subject the power will become exclusive. 10
END QUOTE

QUOTE
Mr. BARTON (New South Wales).-If this is left as an exclusive power the laws of the states will 15
Mr. BARTON.-Not after this power of legislation comes into force. Their existing laws will, however,
remain. If this is exclusive they can make no new laws, but the necessity of making these new laws will be
all the more forced on the Commonwealth. 20
END QUOTE

QUOTE
Mr. GLYNN (South Australia).-I desire to call the attention of the leader of the Convention to an 25
apparent vagueness in the word "exclusive," to which reference has not yet been made. The word
"exclusive," no matter at what time the power arises, whether on the coming into being of the
Commonwealth, or the exercise of the power by the Federal Parliament, may mean, and I believe does
mean, that the power of the state to legislate ceases. On the question of whether the exclusive power
under this provision comes into being with the establishment of the Commonwealth, I would call the 30
attention of the leader of the Convention to clause 84. That clause seems to indicate that this exclusive
power arises the moment an Act is passed. It speaks of the exclusive power of enforcing customs duties
being vested in the Federal Parliament, but the second paragraph says-
But this exclusive power shall not come into force until uniform duties of customs have been imposed
by the Parliament. 35
It would appear that without that limitation the exclusive power would come into force at once, and the
position would be as stated by the Victorian representatives. If you pass this clause as it [start page 255]
stands the state could no longer legislate with regard to Chinese.
Mr. BARTON.-If the exclusive power is given without any restriction, I think it would arise immediately
on the establishment of the Commonwealth. 40
END QUOTE

QUOTE
Mr. GLYNN.-There seems to be some doubt as to whether the exclusive power arises upon the 45
establishment of the Commonwealth or on the exercise of the power of legislation. The doubt seems to
be removed by clause 84. It is said that if we put this provision in clause 52 the exclusive power may be
postponed until legislation takes place. But may you not then have a concurrent power, and may not the
competence of the local Legislature to legislate in the matter be continued as long as the legislation is not in
contradiction of federal legislation? 50

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Mr. DEAKIN.-That is the point.
Mr. GLYNN.-Yes, and there is still a vagueness in the word "exclusive." If it is doubtful whether the
exclusive power commences with the foundation of the Commonwealth, and if it is possible that it may only
come into being on the passing of legislation, may it not still be said that on the passing of exclusive
legislation the power of the local Parliaments to legislate is extinguished, but that on the passing of 5
concurrent legislation that power does not cease?
Mr. REID (New South Wales).-I think that enough has now been said on this subject by honorable
members both sides of the chamber, and I have only a very few remarks to offer. It appears that if the
sub-section remains where it is state laws will be valid until federal legislation, but the states will not be
able to alter or improve those laws during the possibly long interval between federation and federal 10
legislation. Under these circumstances, as we leave to the states for an indefinite time the power of
maintaining the laws they have, we should grant to them the power of improving those laws. It would
recommend the Constitution more to a large number of persons if we put the sub-section in clause 52,
thus enabling each state to legislate on this matter until the Federal Parliament comes in and legislates
for all. 15
END QUOTE
.
QUOTE
The Hon. R.E. O'CONNOR (New South Wales)[3.18]: The moment the commonwealth exercises the 20
power, the states must retire from that field of legislation.
END QUOTE
.
QUOTE Mr. REID: 25
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 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. 30
END QUOTE
.
QUOTE
The Hon. R.E. O'CONNOR (New South Wales)[3.18]: We ought to be careful not to load the 35
commonwealth with any more duties than are absolutely necessary. Although it is quite true that this
power is permissive, you will always find that if once power is given to the commonwealth to legislate
on a particular question, there will be continual pressure brought to bear on the commonwealth to
exercise that power. The moment the commonwealth exercises the power, the states must retire from
that field of legislation. 40
END QUOTE
.
QUOTE
Mr. OCONNOR.-Directly it is exercised it becomes an exclusive power, and there is no doubt that it will 45
be exercised.
END QUOTE

Section 109 provides for existing State legislation that was enacted prior to the Commonwealth
having commenced to legislate on a subject matter and this includes any Colonial Act that was 50
amended after federation, whereas s108 of the constitution applies to any Colonial Act in force at
the time of federation but not having been amended since then but provides for the right of a
State to amend such Colonial law.
I am well aware that the general misconception is that s51 is concurrent powers in that both the
State and the Commonwealth can legislate on the same subject matter and in any conflict then 55
s109 applies, however this is misunderstood because as the Framers of the Constitution made

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clear no new laws and as such the concurrent legislative powers only exist until the
Commonwealth commences to exercise its legislative powers. When it does then it becomes an
exclusive legislative power and the States must retire from this field/subject.
No new laws must include no amendments to existing legislation that was on foot prior to the
Commonwealth commencing to legislate. In Agar v Dolheguy & Anor [2010] VSC 506 (11 5
November 2010) decision the Supreme Court of Victoria the Court completely failed to consider
the above issues and as the High Court of Australia itself stated:
.
That case (a previous decision of the High Court, Foggit, Jones & Co v NSW (1915) 21 CLR 357) was 10
sitting..... The arguments which now commend themselves to me as conclusive did not find entrance to
END QUOTE
Therefore the court may upon proper presentation of relevant details reconsider its position and 15
accept that indeed Victorian legislation is unconstitutional, regardless even if the Commonwealth
were to permit for State legislation, as the Commonwealth cannot overrule the constitution!
The same applies to State land taxes which is unconstitutional because the Commonwealth
commenced to legislate for the Land Tax Office to commence on 11 November 1910. Yet
municipal/shire councils despite of being held in Sydney Council versus Commonwealth (1904) 20
to exercise delegated State powers nevertheless continue to raise council rates the High Court of
Australia held was a form of land taxation. While it may be argued that the Commonwealth in
1952 abolished land taxes, nevertheless once it become an exclusive federal law then it never can
revert back to the States. The NSW Government under the then Premier Christina Kaneally then
claimed (in its correspondence to me) that the legislative powers had been returned to it. No such 25
constitutional provision exists, as to return legislative powers from the Commonwealth to the
states. Even the issue of reference of legislative powers is that once the Commonwealth legislate
it is beyond the States to interfere with this.
Nevertheless we do not seem to have competent judges to administrate the true meaning and
application of the constitution. So to say they are brainwashed during legal studies and further 30
practices experiences failing to be able to understand/comprehend the true meaning and
application of the constitution. This, as if they did understand/comprehend the true meaning and
application of the constitution we wouldnt be in this gigantic legal mess.

If therefore a judge and/or former judge cannot manage to understand/comprehend the true 35
meaning and application of the constitution then I ask how can such a person than be deemed
competent to be a commissioner in a Royal Commission, and perhaps in the process relies upon
his own past ill-conceived judgments?

Does this Royal Commission exist under the British Crown, as was at the time of the Royal 40
Commission Act having been enacted, or somehow it now uses the act of a so called foreign
monarch to suit the illusive Queen of Australia?
Can the Royal Commission Act for and on behalf of a corporate government that not as such
existed at the time the Royal Commission Act was enacted?
45
One cannot so to say move the goal post to suit whomever is happening to be in Government.
The constitution was not designed for this, in fact was specifically designed to avoid this kind of
condition to be applied.

The judges in Sue v Hill & Anor S179/1998 (13 May 1999) were; 50

Sue v Hill & Anor S179/1998 (13 May 1999)
QUOTE

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GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J 5
HAYNE J
CALLINAN J
END QUOTE

Sue v Hill & Anor S179/1998 (13 May 1999) 10
QUOTE
MR ELLICOTT: The persons who were British subjects, my client, for instance, if adult, if 18 - I think 18
applied then - would have been entitled to stand for Parliament.
HAYNE J: What is the principle or proposition that this argument is deployed in aid of, Mr Ellicott? What is
the proposition you are advancing? 15
MR ELLICOTT: The proposition I am advancing, your Honour, is that it is often said that this Court will
consider matters in the context of events which had occurred since Federation. If it be the fact that there is
unfairness and inequality in our community as a result of the application of a particular decision, then that is a
matter that the Court ought to take into account.
END QUOTE 20

QUOTE
GUMMOW J: For the purposes of section 44.
MR ELLICOTT: There are reasons which I will advance why the international law test, even if it is not the 25
applicable law, is worthy of consideration. That is to say, to ask in each case, where does the real loyalty of
the person lie? Now, we would say, on the facts before you, that our clients real loyalty, indisputably, lies
with Australia. There is no doubt about it. She has been here since 1971; she has married here; she has two
children here. She has only been out of the country to visit relatives in the United Kingdom, yes - - -
McHUGH J: Yes, but she took out a British passport. 30
MR ELLICOTT: Yes, she had to.
McHUGH J: And she owed her allegiance. Lord Haw-Haw, who was an American citizen, Joyce was hung
because he had a British passport even though he was an American citizen - he was hung for treason.
MR ELLICOTT: Your Honour, there are - hard cases do not make good law, your Honour, and that is a
pretty hard case. We would submit that looking at the matter in its broad context, that a person who has - like 35
the two people in Sykes v Cleary, have been here for 40 years and they have taken out Australian citizenship
and sworn oaths of loyalty, and then they are told, having lived here for 40 years, that they cannot stand for
Parliament.
HAYNE J: At some point the argument has also to confront, does it not, the fact that although citizenship is
one of the matters dealt with in 44(i), there is also reference to entitlement to "rights or privileges" as well, 40
also, as "acknowledgment of allegiance", et cetera.
MR ELLICOTT: Yes.
HAYNE J: Although, of course, the argument largely focuses on citizenship, 44(i) is by no means restricted
to that.

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MR ELLICOTT: No:
entitled to the rights or privileges of a subject or a citizen -
Now - - -
HAYNE J: And entitlement in this respect to a right or privilege may be said against you to include the right
or privilege to a passport. 5
MR ELLICOTT: Yes, but if they have done it for limited reasons or if they have never taken up other rights
or privileges, it is possible to conclude as a question of fact that they have done all that is reasonably
necessary to renounce their foreign citizenship.
CALLINAN J: Mr Ellicott, I think some children of people who are born in the United Kingdom, children of
parents who are born in the United Kingdom but who themselves were born in Australia, have various rights 10
and privileges of working in the United Kingdom not enjoyed by other Australian citizens.
MR ELLICOTT: Yes. I am saying in relation to that that if you find that people are not taking up those
rights in any way which would be inconsistent with their renunciation of Australian citizenship, then that can
be taken on board as just one of the facts.
CALLINAN J: What I am suggesting is that a literal reading of rights or privileges might operate to 15
disqualify a much larger number of people than even the number you have suggested, for the reason that I put
to you.
END QUOTE

QUOTE
HAYNE J: In 1900, did South Africa or did Canada constitute a foreign power?
MR ELLICOTT: No.
HAYNE J: Does either of them now?
MR ELLICOTT: They may, but that is for different reasons. 25
KIRBY J: What about Burma.
MR ELLICOTT: No, it may not have in 1900. It does now.
KIRBY J: So you do acknowledge a change in content.
MR ELLICOTT: No, but I am concerned about the United Kingdom and I am - - -
KIRBY J: I know you are concerned, but we have to test it by a general proposition. 30
MR ELLICOTT: - - - concerned about the special relationship which exists and has existed beyond 1900
and before 1900, and I am concerned to direct the Court to that relationship. It is not about whether - and your
Honours can ask questions and ask me to answer them in relation to the dominion of Canada or New Zealand
and ask me whether they are foreign powers, I have to answer yes, they are foreign powers - but so far as the
United Kingdom is concerned, it is our submission that the United Kingdom is not a foreign power and never 35
was and whilst the Constitution remains as it is, never will be. In other words, it is an immutable part of the
Constitution and it is ingrained in its meaning, I would submit, and that is because it was antipathetic, not just
to political and social thoughts in 1900. It was antipathetic to the Constitution for the simple reason that the

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Constitution is enacted in a United Kingdom statute. It is a product of United Kingdom law. It still is a
product of United Kingdom law and it still, not only historically, but finds its basis in United Kingdom law.
KIRBY J: I think in your written submissions you said that only Justice Murphy had expressed a different
view and that that had not found favour, but I do not think that is correct. I think that a number of the Justices
in more recent times have said that though it is true historically, the Constitution began as an enactment of the 5
United Kingdom Parliament at some stage in the last century. The fundamental basis of it is recognised as the
people of Australia: they made it; they took it to London in those days for it to be enacted; they alone can
amend it; their judges interpret it; and, therefore, that in the hundred years, the fundamental foundation of it
has changed and is now recognised as the people of Australia and their will.
MR ELLICOTT: Yes. Your Honour I do not - - - 10
KIRBY J: I do not think that was just a view of Justice Murphy.
MR ELLICOTT: - - - equate the two matters, your Honour. I do not equate them with the Justice Murphy
view. The Justice Murphy view was laid - - -
KIRBY J: I think the distinction of Justice Murphy was that it all changed in 1901.
MR ELLICOTT: The Justice Murphy view was quite convincingly laid to rest in the judgment of Justice 15
Stephen in the China Case. But so far as the proposition your Honour has put to me, yes, there is as much
"we the people" in our Constitution as there is in the United States Constitution, but it is nevertheless part of
an enactment of the United Kingdom Parliament, and it still is. There is no question of it. It still is. Why did
we go, why did we go to London in 1986 to get the Australia Act passed. Were we talking to a foreign
power? 20
KIRBY J: That is a very good question.
MR ELLICOTT: Well, I will put another question, your Honour. Why - what was I doing with Mr Whitlam
in 1973 in April when I sat down with him and over the other side of the table was Mr Heath the Prime
Minister of England and the law officers, and asked them to pass a law of the United Kingdom Parliament to
abolish appeals to the Privy Council? Were we talking to a foreign government? We were not talking to a 25
foreign government.
Why is the Royal Style and Titles Act reserved for the opinion of the assent of the Queen? The fact is that
Australia politically, whatever the Judges might think, has accepted that, and I would have thought that
Justice Mason in Kirmani's Case accepted, and that was in 1985, that there was a living relationship between
Australia and the United Kingdom. 30
KIRBY J: No one doubts that. That is not the question.
MR ELLICOTT: Your Honour, it is a relationship in law. It is not just a part of history. It is a legal
relationship, and that is why the Australia Act was passed.
GUMMOW J: I know, but having been passed, section 1 of that is a statement by the United Kingdom
Parliament that hereafter no Act of that legislature: 35
shall extend.....to the Commonwealth, to a State or to a Territory -
Why is that any different from the section of the Indian Independence Act of 1947?
MR ELLICOTT: If we had had a Treaty of Paris, that might have been - - -
McHUGH J: Which one? There are a number of them.

Page 38
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MR ELLICOTT: If we had had a treaty with the United Kingdom, if we had revolted or gone about the
matter another way, that may be different.
GUMMOW J: This is very important. Are you saying the British Parliament - - -
MR ELLICOTT: I am saying the British Parliament still has - - -
GUMMOW J: - - - can repeal section 1 of their Australia Act? 5
MR ELLICOTT: Theoretically, yes. It never will, but theoretically, yes.
GAUDRON J: And we judge that by our law or by their law? It is the same question. There is a choice of
law rule now to be applied; must be.
MR ELLICOTT: Your Honour, as lawyers, one has to find the source of power, and if it is a statutory
provision such as the Constitution, where did it come from - - - 10
GUMMOW J: And where is it now?
MR ELLICOTT: Yes, but, your Honour, you cannot just divorce oneself and say it never existed, otherwise
the judicial method disappears.
McHUGH J: It is a question of identifying sovereignty. Sovereignty is basically a political concept. I
appreciate it is a legal concept in a sense, but sovereignty must now reside in the Australian people, although 15
prior to 1986, in my view, it resided in another place.
END QUOTE

In my view the 1986 Act not being a Constitution Act couldnt have altered the true meaning and
application of the Commonwealth of Australia Act 1900 (UK) one of an iota. 20
Again:
QUOTE
In the preamble honorable members will find that what we desire to do is to unite in one indissoluble Federal 25
under that Union . The second part of the preamble goes on to say that it is expedient to make provision for 30
END QUOTE
. 35
It was an act by the will of the people and not by the will of a then non-existing
Government/Parliament, that was created by the constitution.
And as I have referred to below the legal principle was enshrined in the constitution that any
person coming from the United Kingdom being a subject of the British Crown taking up
residence in the Commonwealth of Australia would by this obtain citizenship, being a political 40
status and be entitled (if at the correct age) to become a Member of the Federal Parliament.

QUOTE
MR ELLICOTT: Your Honour, I would submit - - - 45

Page 39
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McHUGH J: And I have said so. I said it in McGinty, notwithstanding some theoretical difficulties about it,
that sovereignty now resides in the Australian people.
MR ELLICOTT: I would submit that sovereignty resided in the Australian people a long time before that,
that this country was a sovereign nation - - -
HAYNE J: In what sense are you using that expression? Without care, the expression "sovereignty" obscures 5
much more than it illuminates. Are you referring to it being a sovereign nation in the sense of being able to
transact dealings internationally, or are you talking about the source of power to enact laws that have effect
within this country?
MR ELLICOTT: I am talking in the statement I made about its position in the world of nations. That is to
say, it is an independent nation, and its nationhood, its sovereignty as a nation, undisputedly has existed for 10
many decades. The difficulty of saying when it occurred need not trouble the Court at the moment but the
other question of the power - that is the sovereign power of Parliament - we would submit, still has to be
answered, albeit theoretically - - -
GUMMOW J: But when you say "theoretically", what do you mean by "theoretically"?
MR ELLICOTT: "Theoretically" simply means that they would never exercise it. 15
END QUOTE

QUOTE
MR ELLICOTT: I am looking at reality. The United Kingdom Parliament could theoretically pass a law. It 20
is not going to pass such a law. In practical terms, the only way of amending it is under section 128.
HAYNE J: Could I understand what you mean by this theoretical possibility? Let it be assumed that the
Westminster Parliament, for whatever reason, chose to pass an Act which repealed section 1 of the Australia
Act of the United Kingdom. Would not the question then become: what if any consequence in Australian law
is to be given to that repeal? 25
MR ELLICOTT: Yes.
HAYNE J: And what do you say is the consequence that should be given to that repeal?
MR ELLICOTT: The consequence of that would be, the Australia Act had been repealed, to that extent, and
as in force in Australia.
McHUGH J: Well, that is a question what the judges would do about it. I mean, in Madzimbamuto's Case, or 30
whatever it is in the Privy Council, the Privy Council at first said what was done in Rhodesia was illegal, but
eventually the judges came to recognise the Smith regime, and that was the end of it; sovereignty then resided
in the Rhodesian people.
MR ELLICOTT: But we do not have to that.
END QUOTE 35

QUOTE
McHUGH J: Well, I know we do not, but for my purposes it may be important to determine whether or not,
as you claim, sovereignty has always resided in the Australia people or, as I suggested to you, it only became 40
vested in the Australian people in 1986. Now, if you take Lord Bryce's view, in his studies of history and
jurisprudence, under a rigid Constitution ultimate sovereignty resides in the body that can make and amend
the Constitution. Now the people, in that sense, are never silent, because they share it with the Parliament

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under section 128; the Imperial Parliament, the Queen in Parliament did not. It could make the Constitution,
it could amend it, but in 1986 it abandoned that claim. Thereafter, surely sovereignty must reside in the
Parliament and the people under section 128.
GAUDRON J: And not only did the United Kingdom Parliament abandon it, the Australian Parliament also
enacted that no law of the United Kingdom Parliament would extend to Australia. 5
MR ELLICOTT: Yes, and did so under the external affairs power.
KIRBY J: And that, in my humble view, was enough; I do not know, and I will never know, why we went to
the United Kingdom to ask a foreign Parliament to enact matters relevant to our laws.
MR ELLICOTT: Well that is because it was not a foreign Parliament, your Honour. Your Honour has a
view about it, but it is not a foreign Parliament, and - - - 10
KIRBY J: Well, by 1986 they had no business enacting laws in relation to Australia.
MR ELLICOTT: That, with respect, is a political statement and not, with respect, one that is - - -
KIRBY J: No, you yourself acknowledged, Mr Ellicott, that we do not have to trouble at what point this
change occurred, but that it occurred is undoubted and ultimately the foundation of a constitutional
arrangement must be fact. 15
MR ELLICOTT: Justice Hayne asked me a question, which arose out of something I had said to Justice
McHugh which was, with respect, properly put to me to make a distinction. The sovereignty, that I am
referring to is existing for some time, is, what is spoken about here, Australia as a sovereign independent and
federal nation in the Australia Act. It acknowledges that we are a sovereign independent and federal nation
and that is something we had always - when I say "always", for many years prior thereto been. There were 20
some people who were troubled by some United Kingdom ties, but the fact was, legally, we were sovereign
independent and a federal nation, and this Australia Act did not affect that. What it did do is either, we would
submit, enacted provisions which, by their force, mean that the United Kingdom Parliament can go on
passing laws, but they will not have any effect in Australia, because the Australian Parliament under the
external affairs power, has passed a law saying that they shall not operate. 25
GUMMOW J: Well, it was under section 51(xxxviii), I think, Mr Ellicott.
McHUGH J: There was a reference under 51(xxxviii) by the States, not the external affairs power, it was
done under 51(xxxviii). That is the Australia Act.
MR ELLICOTT: Yes, your Honour. But, so far as the external affairs power is concerned, it would support
section 1. It would support section 1 because it is an external affair that any law of the United Kingdom, 30
whatever its status is for the purposes of our argument, it is, indeed, an external affair because - - -
McHUGH J: But it is subject to the Constitution - 51 is subject to the Constitution.
MR ELLICOTT: Yes, I appreciate that, but, nevertheless, there is nothing that would exclude the external
affairs power from supporting section 1. We would submit that, theoretically, and it is immensely theoretical,
the link has not been severed in a legal sense. It is still there and it will never have any - - - 35
McHUGH J: I do not know whether it means in a legal sense, and it really means - the issue is whether or
not the courts of this country will take their law from England, or France, or the United States, or now from
our legislatures.
MR ELLICOTT: Can I put it this way? If the Commonwealth Parliament had not passed the Australia Act
itself, then we would submit that the United Kingdom Act could be repealed and that it would, therefore, not 40
have severed the link and that it does not sever the link for the Australian Parliament to pass this law. What it
does is for the Australian Parliament to make sure that whatever power the United Kingdom may still have, it

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cannot exercise it, not the question validly, towards Australia but it is a futile exercise of it because under our
external affairs power we have excluded it. I am not going any further than to say that, theoretically - it is
theoretical in the sense of, it is not an issue which can now arise but - - -
McHUGH J: But does that mean anything more than the judges of this country will give effect to the law of
the Australian Parliament as opposed to the law of the United Kingdom. 5
MR ELLICOTT: That is all it means, but it does not mean that the constitutional link, both historically and
presently, is not there, because our sovereignty in the non-political sense depends, and this is where Justice
Kirby says, "I do not understand why we ever had to do it", but our sovereignty, in a legal sense, depends on
an Act of the United Kingdom Parliament.
GLEESON CJ: Has anything happened in recent years to the sovereignty of the United Kingdom 10
Parliament?
MR ELLICOTT: I suspect that something has.
McHUGH J: Well, a good deal has, I think, has it not?
MR ELLICOTT: And by virtue of the European Union, there are significant changes occurring but that is
another issue. 15
McHUGH J: Plus devolution.
MR ELLICOTT: And devolution. Now - - -
HAYNE J: Mr Ellicott, can I put to you the point that was put by Wade in his article on the basis of legal
sovereignty which is 13 Cambridge Law Journal, a 1955 article. Wade says of the controversy, on the one
hand, between Bryce, and on the other, Anson and Dicey, about what is meant by sovereignty: 20
What neither side quite acknowledges is that the seat of sovereign power is not to be discovered by looking at
Acts of any Parliament but by looking at the courts and discovering to whom they give their obedience.
When we come to discuss sovereignty in the present context, is not the critical question, to which Parliaments
would this Court, and the courts beneath it in the judicial system, look, in determining the laws that are to be
applied in this country? 25
MR ELLICOTT: They looked at the Constitution, from which they gather their authority, either under
Chapter III or section 106, or maybe the Charter of Justice, but certainly they will look to those provisions
and they will be reflected in Acts of the Parliament of the Commonwealth and the States. There can be no
doubt about that. But it does not, with respect, determine the - because that could have been said as it was in
1955 when the link that I am addressing the Court about still clearly existed, the Statute of Westminster 30
operated and it was part of our constitutional arrangements. The fact that it has now been repealed or
amended in some way does not, we would submit, affect the situation, and that the only way in which the so-
called ultimate sovereignty in a legal sense has come home to Australia is because of an Act of the Australian
Parliament which it was enabled to pass, we would submit, under provisions of our Constitution and not
otherwise, and which are found in the United Kingdom Act passed in 1900. 35
Now, your Honours, that discussion does not arise if our submission is correct that in the beginning, that is, in
1900 the words "sovereign power" did not mean the United Kingdom, and in the Constitution - - -
McHUGH J: Did not mean or did not apply? You say did not mean?
MR ELLICOTT: Did not mean; not just it did not apply to, but did not mean. It had a meaning which
excluded the United Kingdom and that was because it was an Act itself. It was found in Act itself of that very 40
Parliament. It just was not capable of having that meaning, and it was not an intention whether you say of the
founding fathers or to be gathered from the Act, however you wish to put it, it was not an intention that it

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would cover the United Kingdom at any stage. Now, that must be so if one is to look at the Constitution
itself, because the covering provisions themselves have the effect - - -
END QUOTE

QUOTE
MR ELLICOTT: It could be said that the interim has passed. Parliament might repeal the Commonwealth
Electoral Act, theoretically but that again I would submit, does not affect the force of the argument that the
Parliament could have waited beyond this point of time.
HAYNE J: That is, consistently with the existence of sovereign independence, section 34 could have 10
remained operative today. Is that the argument?
MR ELLICOTT: The argument is that section 34 did not dictate to Parliament when it had to otherwise
provide.
HAYNE J: I understand that, but could 34 survive in that form and it still be open to conclude that Australia
had become a sovereign and independent nation? 15
MR ELLICOTT: Yes. All it had to do, as it did, was to pass an Act that every Australian citizen was a
British subject. That is exactly what happened until 1981. That is part of the so-called injustice I referred to
earlier, but I will not go back to that.
GAUDRON J: There was a change at some point, that Australians were British subjects and then they - did
it not come about that they shall have the status as British subjects, as if British subjects, or something like 20
that?
MR ELLICOTT: In 1984 the Act was substantially changed and it came into effect on 1 May 1987 and that
took out of the Act the provision that said "Australian citizens shall be deemed to be British subjects", but it
still left the requirement that persons must be British subjects in order to be qualified for election to the
Parliament until 1981; that is, not the Citizenship Act, but the Commonwealth Electoral Act. 25
McHUGH J: The great irony if your argument is wrong is that in Asia there would be many people, perhaps
a vast majority, would think it odd to say that the United Kingdom was a foreign power so far as Australia
was concerned.
MR ELLICOTT: Yes.
KIRBY J: Fortunately the decisions are made in this Court. 30
CALLINAN J: Well, I do not accept that; I think Asian people are very sophisticated and perfectly capable
of understanding the subtleties of the relationship. I know it is commonly said but I just do not accept it. It
really does not give you - - -
MR ELLICOTT: Those who have had experience may not think that that is so but, nevertheless, it is a
common view that is expressed within the bounds of our country. I mean, we have got an Australian citizen 35
who is the Deputy Prime Minister of Cambodia, I think. That is a strange situation perhaps, but that can
happen.
The other aspect of the Constitution which is important is the phrase which actually is in section 34, "subject
of the Queen". Now, much has been said about the Royal Style and Titles Act as if it indicated a step in this
period of change. Now, if one looks at the Act, both in 1953 and 1973, it still retained within it a statement 40
which included all the areas, all those parts of the world, over which the Queen had dominion:

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Elizabeth the Second, by the Grace of God of the United Kingdom, Australia and Her other Realms and
Territories Queen, Head of the Commonwealth -
Now, it is sometimes read as if it stopped as "Queen of Australia"; it does not do anything other than state the
position in a way which is relevant, more relevant for people in Australia. In 1953, which your Honours will
recall was the first year of a royal visit to Australia - - - 5
KIRBY J: No, that was 1954.
MR ELLICOTT: , well, in 1953 the Royal Style and Titles Act is amended, and it is amended to bring
Australia specifically into it and in so doing - I will just read it:
of the United Kingdom, Australia and Her other Realms and Territories Queen, Head of the Commonwealth,
Defender of the Faith. 10
Now, that in itself made the Queen or the Crown more relevant to Australia, because Australia was noted.
Then in 1973, on the eve of another visit by the Queen, in October 1973, I suspect, this Act is passed, and,
with a new government and an intention to emphasise Australia again, it is:
Australia and Her other Realms and Territories Queen, Head of the Commonwealth -
Now, the importance of that is that, although one finds references to "Queen of Australia", the Act really 15
operated in no way to make a constitutional change; it is still "the Queen".
KIRBY J: Well, it could not; it is not a referendum-supported Act.
MR ELLICOTT: It is not a referendum, so it is still "the Queen".
END QUOTE
20
QUOTE
HAYNE J: Does it, therefore, mean that a person can be a member of the House or a senator who is bound
by reasons of allegiance, obedience or adherence to another country, for example, to be engaged in military
service for that country, in circumstances that are at the least antithetical to the interests of this country as 25
decided in this country?
MR ELLICOTT: Parliament has passed a law which says that, in order to be a member of Parliament, you
must be an Australian citizen. That only demonstrates that Parliament can confine the problem that your
Honour seeks to raise by that question. Section 44 is a disqualifying provision and all it does is to exclude
people from the capacity to be chosen or sit. If my argument means that Canadians will not be affected by 30
section 44(i), then that is not a large matter because section 34 is always, in the capacity of our own
Parliament, to alter. In other words, it is possible to put a problem based on my argument and based on a
person being a British subject somewhere else but, nevertheless, if one is asking the question "What does
subject of the Queen mean?", in our submission, it is not a question of one and indivisible. It is a question of
whether or not it is a person as distinct from a legal concept that we are concerned about, and my submission 35
is that it is a person and not a legal concept.
GAUDRON J: But is not foreign power a legal concept?
MR ELLICOTT: Foreign power is but, if you are the subject of the Queen and it is the same person who is
the Queen, if you like, in right of Australia, it is the same Queen in right of the United Kingdom, then how
can they be foreign to one another? 40

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GAUDRON J: Am I not correct in thinking that the notion of "British subject or subject of the Queen" is
now changed to a "citizen of the United Kingdom"?
END QUOTE

QUOTE
MR ELLICOTT: What we are wrestling with is a definition or a meaning of the Constitution and the words
"subject of the Queen".
HAYNE J: No, we are wrestling with "foreign power", are we not?
MR ELLICOTT: Yes, but we are wrestling with it in terms of whether the words "subject of a foreign 10
power" can include a subject, albeit called a British citizen, who is a subject of the Queen in right of the
United Kingdom.
HAYNE J: And is the purpose of the provision to be identified by Mr Barton's interjection in the convention
debates where he said in connection with this:
A man might have to go out of our Parliament to serve against us. 15
Sir George Turner added to the interjection:
He may be Minister of Defence.
That is, is the purpose of section 44(i) a purpose that at least includes the avoidance of members being
subjected to obligations of military service in operations that would be regarded as antithetical to the interests
of this country. 20
MR ELLICOTT: Your Honour, can I answer that by taking your Honours to Sykes v Cleary 176 CLR 77
and there is a passage at 106 and 107.
In the Nottebohm Case, Liechtenstein sought to exercise its right of diplomatic protection in respect of acts of
Guatemala.....The International Court of Justice pointed out that, where the question had arisen with regard to
the exercise of diplomatic protection, international arbitrators had recognized the "real and effective 25
nationality, that which accorded with the facts, that based on stronger factual ties between the person
concerned and one of the States whose nationality is involved" as that which gave rise to a right to exercise
diplomatic protection.
Then they quote the court.
"[N]ationality is a legal bond having as its basis a social fact of attachment, a genuine connexion of existence, 30
interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to
constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by
the law or as a result of an act of the authorities, is in fact more closely connected with the population of the
State conferring nationality than that with that of any other State.
Going to the middle of the page, having pointed out that the critical words in 44 do not permit the Court to 35
adopt the approach which has been taken by international law they go on to say:
But, there is no reason by s 44(i) should be read as if it were intended to give unqualified effect to that rule of
international law. To do so might well result in the disqualification of Australian citizens on whom there was
imposed involuntarily by operation of foreign law a continuing foreign nationality, notwithstanding they had
taken reasonable steps to renounce that foreign nationality. 40
That is something that one of your Honours referred to earlier.

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It would be wrong to interpret the constitutional provision in such a way as to disbar an Australian citizen
who had taken all reasonable steps to divest himself or herself of any conflicting allegiance. It has been said
that the provision was designed to ensure: "the members of Parliament did not have a split allegiance and
were not, as far as possible, subject to any improper influence from foreign governments."
Now, just stopping there, I was advancing the argument in relation to subject of the Queen, to say that a 5
British citizen or a British subject, who is also an Australian citizen, does not have a split allegiance, because
the allegiance is to the one Crown, which is personified in the Queen and the word being "allegiance" that if,
in both respects, the person, albeit that the Crown or the Queen is advised separately in relation to the matters
of the two States, that if the person has allegiance to the same Crown, it cannot be allegiance or that person
cannot be the subject of a foreign power, and that is how I put the argument. 10
END QUOTE

QUOTE
Sir GEORGE TURNER.-Will you briefly restate the point? 15
Mr. DEAKIN.-My point is that by the requests of different colonies at different times you may arrive
at a position in which all the colonies have adopted a particular law, and it is necessary for the working
of that law that certain fees, charges, or taxation should be imposed. That law now relates to the whole
of the Union, because every state has come under it. As I read clause 52, the Federal Parliament will
have no power, until the law has thus become absolutely federal, to impose taxation to provide the 20
necessary revenue for carrying out that law. Another difficulty of the sub-section is the question
whether, even when a state has referred a matter to the federal authority, and federal legislation takes
place on it, it has any-and if any, what-power of amending or repealing the law by which it referred the
question? I should be inclined to think it had no such power, but the question has been raised, and
should be settled. I should say that, having appealed to Caesar, it must be bound by the judgment of 25
Caesar, and that it would not be possible for it afterwards to revoke its reference. It appears to me that
this sub-section, which is certainly one of the very valuable sub-sections of this clause, affording, as it does,
means by which the colonies may by common agreement bring about federal action, without amending the
Constitution, needs to be rendered more explicit. One point more especially which needs to be rendered clear
is whether, when we have this federal action, there shall not be a federal means of providing for the necessary 30
revenue that may be required or for imposing the necessary charges under such legislation.
Sir JOHN DOWNER.-Is that not implied?
Mr. DEAKIN.-If it is implied, would it not be best to make it explicit? The parentage of this clause, as I
have shown-originating as it does in a body with practically no financial power-casts a certain suspicion on
that reading of it, although, of course, the provision when embodied in this Act would have a different effect. 35
Still, why not make it clear whether we mean that, when the Federal Parliament has passed federal
legislation for some of the colonies, we shall allow that same legislation to deal with any necessary
raising of revenue from those colonies which may be required to give effect to the legislation?
the consideration of the Drafting Committee, and probably the difficulty to which he has drawn attention 40
from another point of view, and it seems to me that the provision affords an easy method of amending
the Federal Constitution, without referring such amendments to the people of the various states for
and the Federal Parliament has dealt with such matters, that becomes a federal law, and cannot afterwards be 45
once made [start page 218] is a reference for all time, and cannot be revoked, so that to that extent it
becomes an amendment of the states' Constitution, incorporated in and engrafted on the Federal
and the states can, after making such reference, repeal such reference, what is the result? You have a 50

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is that it affords a free and easy method of amending the Federal Constitution without such amendments being
Constitution.
END QUOTE 5
.
QUOTE Mr. SYMON:
There can be no doubt as to the position taken up by Mr. Carruthers, and that many of the rules of the
common law and rules of international comity in other countries cannot be justly applied here. 10
END QUOTE

QUOTE
HAYNE J: The principle underpinning it being that it is the combination of the separate valid expressions of 15
valid preference that is what is described as the expression "of the will of the people".
MR FINCH: Exactly, your Honour, we say - - -
HAYNE J: It is not a political question. It is a legal principle that is to be applied.
END QUOTE
20
If one was to accept the reasoning of the High Court of Australia then irrespective of the
documented legal principles embedded in the constitution any constitution could somehow be
altered by mere legislation in defiance of any referendum.
In my view, the following applies:
25
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 either legally
immutable or else capable of being changed only by some authority above and beyond the ordinary 30
legislative bodies, whether federal or state legislatures, existing under the constitution.
That opens up a matter of very large consideration for this Convention. In the first place, what is the
authority above and beyond the legislatures which is to have the power of changing the law of the
constitution, or of regulating it in any form? The answer, of course, is that it is the people of these colonies
who are to be charged with that important function; and I would, therefore, point out-and I think 35
several hon. members who have had considerable experience in leading what may be called democratic
parties in these colonies have forgotten for a moment-what the democracy of Australia is to be.
END QUOTE
.
I was naturalised on 28 March 1994 and I view it was beyond anyone to interfere with my rights 40
as a British subject as enshrined in the constitution. Not even s128 referendum could have
interfered with this because the constitution itself is no more but the 9
th
part of the entire
Commonwealth of Australia Constitution Act 1900 (UK) and s128 referendums only can be
applied to the 128 sections and no more. And as long as there was no constitution amendment act
passed by the British Parliament nothing can be changed to the first 8 parts of this constitution 45
act.
In my view only a VELVET REVOLUTION to abandon the British monarchy and establish
some kind of Australian nation might achieve an independent nation but it couldnt be then be a

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POLITICAL UNION as now exists. If the Commonwealth of Australia were under whatever
name become a sovereign country then the States cannot be held liable to how the States were
created within the Commonwealth of Australia Constitution Act 1900 (UK) but may opt for a
different kind of arrangements.
The danger is that if we were to go along with the Sue v Hill judgment then nothing stops it to be 5
used time and time again to transform this into a dictatorship.
As quoted above that the constitution didnt allow for it to be altered from being a POLITICAL
UNION and this I view is an essential criterion to be considered.

What indeed is the worth of the constitution if the true meaning and application can be altered 10
not because the people themselves voted for this but because politicians and judges desire to do
so?
.
QUOTE 15
Mr. SYMON.-Very likely not. What I want to know is, if there is anybody who will come under the
operation of the law, so as to be a citizen of the Commonwealth, who would not also be entitled to be a
citizen of the state? There ought to be no opportunity for such discrimination as would allow a section of a
state to remain outside the pale of the Commonwealth, except with regard to legislation as to aliens. Dual
citizenship exists, but it is not dual citizenship of persons, it is dual citizenship in each person. There may 20
be two men-Jones and Smith-in one state, both of whom are citizens of the state, but one only is a
citizen of the Commonwealth. That would not be the dual citizenship meant. What is meant is a dual
citizenship in Mr. Trenwith and myself. That is to say, I am a citizen of the state and I am also a citizen
of the Commonwealth; that is the dual citizenship. That does not affect the operation of this clause at all.
But if we introduce this clause, it is open to the whole of the powerful criticism of Mr. O'Connor and those 25
who say that it is putting on the face of the Constitution an unnecessary provision, and one which we do not
expect will be exercised adversely or improperly, and, therefore, it is much better to be left out. Let us, in
dealing with this question, be as careful as we possibly, can that we do not qualify the citizenship of this
Commonwealth in any way or exclude anybody [start page 1764] from it, and let us do that with precision and
clearness. As a citizen of a state I claim the right to be a citizen of the Commonwealth. I do not want to 30
place in the hands of the Commonwealth Parliament, however much I may be prepared to trust it, the
right of depriving me of citizenship. I put this only as an argument, because no one would anticipate such a
thing, but the Commonwealth Parliament might say that nobody possessed of less than 1,000 a year should
be a citizen of the Federation. You are putting that power in the hands of Parliament.
Mr. HIGGINS.-Why not? 35
Mr. SYMON.-I would not put such a power in the hands of any Parliament. We must 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, except with regard to one particular set of people who are subject to
disabilities, as aliens, and so on. 40
END QUOTE

http://www.geocities.com/englishreports/77ER377.html
QUOTE
4. And as to the fourth, it is less than a dream of a shadow, or a shadow of a dream: for it hath been often 45
said, natural legitimation respecteth actual obedience to the sovereign at the time of the birth; for as the
antenati remain aliens as to the Crown of England, because they were born when there were several Kings of
the several kingdoms, and the [7-Coke-27 b] uniting of the kingdoms by descent subsequent cannot make him
a subject to that Crown to which he was alien at the time of his birth: so albeit the kingdoms (which Almighty
God of his infinite goodness and mercy divert) should by descent be divided, and governed by several Kings; 50
yet it was resolved, that all those that were born under one natural obedience while the realms were
united under one sovereign, should remain natural born subjects, and no aliens; for that naturalization
due and vested by birthright, cannot by any separation of the Crowns afterward be taken away: nor he

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that was by judgment of law a natural subject at the time of his birth, become an alien by such a
matter ex post facto.
END QUOTE

http://www.geocities.com/englishreports/77ER377.html 5
QUOTE
3. Where the King hath several kingdoms by several titles and descents, there also are the ligeances several:
but the King hath these two kingdoms by several titles and descents; therefore the ligeances are several.
These three arguments are collected also from the words of the plea before remembered.
3. Leges. From the several and distinct laws of either kingdom, they did reason thus: 1. Every subject 10
that is born out of the extent and reach of the laws of England, cannot by judgment of those laws be a
natural subject to the King, in respect of his kingdom of England: but the plaintiff was born at
Edinburgh, out of the extent and reach of the laws of England; therefore the plaintiff by the judgment
of the laws of England cannot be a natural subject to the' King, as of his kingdom of England.
END QUOTE 15

QUOTE
By all which it is manifest, that the protection and government of the King is general over all his dominions
and kingdoms, as well in time of peace by justice, as in time of war by the sword, and that all be at his 20
command, and under his obedience.
END QUOTE

QUOTE 25
3. There be regularly (unless it be in special cases) three incidents to a subject born. 1. That 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. For the first, it is termed actual obedience, because, though 30
the King f' England hath absolute right to other kingdoms or dominions, as France, Aquitai,
Normandy, &c. yet seeing the King is not in actual possession thereof, none born there since the Crown
of England was out of actual possession thereof, are subjects to the King of England. 2. The place is
observable, but so as many times ligeance or obedience without any place within the King's dominions
may make a subject born, but any place within the King's dominions may make a subject born, but 35
any place within the King's dominions without obedience can never produce a natural subject. And
therefore if any of the King's ambassadors in foreign nations, have children there of their wives, being
English women, by the common laws of England they are natural-born subjects, and yet they are born
out-of the King's dominions. But if enemies should come into any of the King's dominions, and surprise
any castle or fort, and [7-Coke-18 b] possess the same by hostility, and have issue there, that issue is no 40
subject to the King, though he be born within his dominions, for that he was not born under the King's
ligeance or obedience. But the time of his (a) birth is of the essence of a subject born; for he cannot be a
subject to the King of England, unless at the time of his birth he was under the ligeance and obedience
of the King. And that is the reason that antenati in Scotland (for that at the time of their birth they
were under the ligeance and obedience, of another King) are aliens born, in respect of the time of their 45
birth.
END QUOTE

QUOTE 50
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 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 55
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, and a very strong reason why
it should not be accepted. It is not a lawyers' question; it is a 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 60

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Parliament," I am willing to do it in everything which concerns the working out of this Constitution, but I am
not prepared to trust the Federal Parliament or anybody to take away that which is a leading inducement for
joining the Union.
END QUOTE
5
The States were as Colonies the dominions of the British Crown and retained this position. While
the Framers of the Constitution provided for the Commonwealth of Australia for and on behalf of
the British Parliament to naturalise aliens, as was previously applicable for the colonies,
nevertheless this restricts the Commonwealth of Australia to do so not in its own rights but on
behalf of the States. 10
I view the hidden agenda was with politicians and judges alike that any separation from the
British monarchy would somehow increase their powers as politicians and/or judges.
.
HANSARD 19-4-1897 Constitution Convention
QUOTE Mr. CARRUTHERS: 15
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
. 20
QUOTE Mr. J. FORREST:
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 25
country. Any Australian, resident in England, can at once, if the electors desire, become a member 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 30
.
QUOTE
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. 35
END QUOTE

QUOTE
Mr. HOLDER: We want something which shall have two parts, which shall be democratic in the fact that 40
it is based on the people's will, and that in it every personal unit of the population shall be recognised and his
individuality preserved, and that, on the other hand, shall be a true Federation, in that each State unit shall
also have its individuality preserved and its independence assured. I do not think we can afford to
dispense with either of these two things. We cannot afford to dispense with the guarantee of the personal
individual rights of every citizen of the Commonwealth, nor, on the other hand, can we afford to dispense 45
with the individual or separate rights or interests of each of the separate States-if my hon. friend Mr.
O'Connor prefers that term. We cannot neglect to provide for their due recognition. The next principle I shall
lay down is this: That in dealing with this federal authority we should confer on it no powers which it
cannot exercise more wisely and well and effectively than the States can exercise those powers. I would
even go a step further, and lay down as the principle which should govern our conduct: To the States all that 50
is local and relating to one State, to the Federal authority all that is national and inter-State. I wonder
whether I can secure the absolute adherence, no matter where it may lead us, of a majority of this Convention
to that principle: To the State everything that is local and relating to one State, to the Federal power
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 55

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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 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, are chiefly, first the right of veto which
the Imperial authorities have over any Acts our local Legislature may pass, and which the Federal Legislature 5
may pass, and next the right of the Imperial Legislature at any time to pass legislation which may affect us, or
which may revoke any legislation affecting us. These are the great legal bonds which bind us to the British
Empire. But above all this, the greater and wider, and, to my mind, much more important [start page 145]
bonds than the legal bonds are those of kinship, of language, and of sympathy that must always bind us to the
motherland. The mere appointment by the Crown of the Governor-General is not a real bond. That this is so is 10
recognised to-day in that we have presiding, now and again, in the position of Acting-Governor of one or
other of these colonies, gentlemen who so preside by virtue of their position upon the legal bench. In the
appointment of the Governor we have only one link, and that link is again and again missing when gentlemen,
owing to their legal position, temporarily occupy the office.
Mr. SYMON: By vice-regal appointment. 15
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 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 20
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 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. 25
END QUOTE
.
QUOTE
Sir JOHN FORREST.-What is a citizen? A British subject? 30
Mr. WISE.-I presume so.
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 35
within its borders. I think my answer to Sir John Forrest was given a little too 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. 40
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.
END QUOTE 45
.
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. 50
END QUOTE

QUOTE. Mr. CUTHBERT:
I am proud to say, as the result of a conference which took place in London, and to which 55
we sent delegates, that for the first time, I think, in English history the colonies have
entered into a partnership by which they are enabled to have the advantage of the support

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of what may be termed an Australian squadron. Under the British flag we may rest in
security, leaving it to the squadron in this part of her Majesty's dominions to protect our
commerce, and taking upon ourselves the duty of defending our shores.
END QUOTE
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: 10
END QUOTE

Hansard 6-4-1897 Constitution convention Debates (Official Record of the Debates of the National
QUOTE Mr. DEAKIN: 15
In the first instance, the power of the Crown itself is nowhere defined, and cannot be defined under this
constitution.
END QUOTE

Hansard 6-4-1897 Constitution convention Debates (Official Record of the Debates of the National 20
QUOTE
Sir SAMUEL GRIFFITH: I am trying to get at the ideas which are underlying the argument of hon.
gentlemen. I confess I have not got at them yet. The hon. member, Mr. Deakin, talks about the powers
exercised by the ministers of the Crown in Great Britain. They do not differ in any respect from the 25
powers exercised by ministers of the Crown in any other country.
Dr. COCKBURN: They are much superior to the powers of ministers here!
Sir SAMUEL GRIFFITH': Not in the east.
Mr. DEAKIN: The powers of our ministers are limited, and theirs are unlimited!
END QUOTE 30

Clearly the Ministers of the Federal Parliament now may consider no longer bound by the
constitution and this is very dangerous. The Courts cannot have it that they allow a manipulation
of the constitution to suit parliamentarians and the government and then expect they will remain
immune. For example the separation of powers between the legislators (Parliament) the 35
executives (government) and the judiciary already is being undermined.
While the Commonwealth of Australia has no constitutional powers to interfere with the High
Court of Australia original jurisdiction, nevertheless with treaties now in place essentially foreign
businesses can go to an international court to seek adjudication where the High court of Australia
defeated their claims. By this, on the one hand we so to say got rid of the Privy Council as to 40
make the High Court of Australia the ultimate tribunal, and yet the Government of the Day can
for political reasons engage in a treaty that undermines the courts original jurisdiction.
Why indeed should the politicians respect the courts rights of independence when the courts do
not give a darn about the true meaning and application of the constitution and so in effect itself
gave the powers to the politicians to do as they like? 45
If the Commonwealth of Australia Constitution Act 1900 (UK) is a constitution of a foreign
power then why enforce it? Likewise, why then rely and enforce upon any legislation enacted by
this foreign power such as the Royal Commission Act?

With Singapore there was a new constitution that was defined and related also to British law, etc. 50

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If therefore we were to so to say get rid of the British Crown then it is for the People and not for
politicians and judges to determine what a new constitution may entail.
Below I quote various parts of the constitution of the Republic of Singapore and view that albeit
Australians may not desire to have the same inclusions of all quotations they may desire many of
them. Therefore, if we abandon the British Crown then it must be a decision by the People and 5
not politicians and judges going beyond their constitutional powers.
QUOTE
PART I
PRELIMINARY
Citation. 10
1. This Constitution may be cited as the Constitution of the Republic of Singapore.

Amendment of Constitution.
5.
(1) Subject to this Article and Article 8, the provisions of this Constitution may be amended by a law enacted 15
by the Legislature.
(2) A Bill seeking to amend any provision in this Constitution shall not be passed by Parliament unless it has
been supported on Second and Third Readings by the votes of not less than two-thirds of the total number of
the elected Members of Parliament referred to in Article 39 (1) (a).
16/84. 20
Act 17/94 wef 1.10.94 vide S 367/94
PART III
PROTECTION OF THE SOVEREIGNTY OF THE
REPUBLIC OF SINGAPORE
No surrender of sovereignty by merger or in any other manner, nor relinquishment of control over the 25
Police Force or the Armed Forces unless supported by not less than two-thirds of total votes cast by
electors at a referendum.

No amendment to this Part unless supported by not less than two-thirds of total votes cast by electors
at a referendum. 30
8. --(1) A Bill for making an amendment to this Part shall not be passed by Parliament unless it has been
supported, at a national referendum, by not less than two-thirds of the total number of votes cast by the
electors registered under the Parliamentary Elections Act.
END QUOTE
QUOTE 35
Part VA;

"existing law" means any law having effect as part of the law of Singapore immediately before the
commencement of this Constitution;
END QUOTE 40
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 Singapore; 45
END QUOTE
Legislation therefore includes all laws inhered from the United Kingdom, including the magna
Carta, the Bill of Rights and other legislation. Moreover, it includes also that the legal provision
that the British Parliament can always amend its own laws remains applicable. Therefore the
United Kingdom by signing the European Union treaty and so its acceptance of its Constitution, 50
in effect has ensured that the right of the British parliament to compliment the Constitution of
Singapore was never extinguished.
Again:
"law" includes written law and any legislation of the United Kingdom or other enactment or instrument
whatsoever which is in operation in Singapore 55

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the right of any parliament to amend its own legislation, including a constitution can only be
limited by the 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 5
cannot be interfered with by implied amendments.
The purpose of the The European Convention for the protection of Human Rights and
Fundamental Freedoms (the ECHR) is not to undermine the THE REPUBLIC AND THE
CONSTITUTION but rather is complimentary to the provisions of the Constitution.
QUOTE 10
PART II
THE REPUBLIC AND THE CONSTITUTION
Republic of Singapore.
3.
Singapore shall be a sovereign republic to be known as the Republic of Singapore. 15
Supremacy of Constitution.
4. This Constitution is the supreme law of the Republic of Singapore and any law enacted by the Legislature
after the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent
of the inconsistency, be void.
END QUOTE 20

QUOTE
Participation in co-operative international schemes which are beneficial to Singapore.
7. Without in any way derogating from the force and effect of Article 6, nothing in that Article shall be
construed as precluding Singapore or any association, body or organisation therein from 25
(a) participating or co-operating in, or contributing towards, any scheme, venture, project, enterprise or
undertaking of whatsoever nature, in conjunction or in concert with any other sovereign state or with any
Federation, Confederation, country or countries or any association, body or organisation therein, where such
scheme, venture, project, enterprise or undertaking confers, has the effect of conferring or is intended to
confer, on Singapore or any association, body or organisation therein, any economic, financial, industrial, 30
social, cultural, educational or other benefit of any kind or is, or appears to be, advantageous in any way to
Singapore or any association, body or organisation therein; or
(b) entering into any treaty, agreement, contract, pact or other arrangement with any other sovereign state or
with any Federation, Confederation, country or countries or any association, body or organisation therein,
where such treaty, agreement, contract, pact or arrangement provides for mutual or collective security or any 35
other object or purpose whatsoever which is, or appears to be, beneficial or advantageous to Singapore in any
way.
END QUOTE

QUOTE 40
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 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. 45
(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.
(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 magistrates authority. 50
16/84.
(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. 55
(6) Nothing in this Article shall invalidate any law
(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

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(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,
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

This part does not refer to the imposition of a death penalty, but relates to arrest and
detention, and as such must be deemed to be an implied prohibition to use a death penalty!

QUOTE 10
PART V
THE GOVERNMENT
CHAPTER 1
The President
The President. 15
17. --(1) There shall be a President of Singapore who shall be the Head of State and shall exercise and
perform such powers and functions as are conferred on the President by this Constitution and any other
written law.
END QUOTE
20
QUOTE
Discharge and performance of functions of President.
21. --(1) Except as provided by this Constitution, the President shall, in the exercise of his functions under
this Constitution or any other written law, act in accordance with the advice of the Cabinet or of a Minister
acting under the general authority of the Cabinet. 25
(2) The President may act in his discretion in the performance of the following functions:
(a) the appointment of the Prime Minister in accordance with Article 25;
(b) the withholding of consent to a request for a dissolution of Parliament;
(c) the withholding of assent to any Bill under Article 22E, 22H, 144 (2) or 148A;
(d) the withholding of concurrence under Article 144 to any guarantee or loan to be given or raised by the 30
Government;
(e) the withholding of concurrence and approval to the appointments and budgets of the statutory boards and
Government companies to which Articles 22A and 22C, respectively, apply;
(f) the disapproval of transactions referred to in Article 22B (7), 22D (6) or 148G;
(g) the withholding of concurrence under Article 151 (4) in relation to the detention or further detention of 35
any person under any law or ordinance made or promulgated in pursuance of Part XII;
(h) the exercise of his functions under section 12 of the Maintenance of Religious Harmony Act; and
Cap. 167A.
(i) any other function the performance of which the President is authorised by this Constitution to act in his
discretion. 40
(3) The President shall consult the Council of Presidential Advisors before performing any of his functions
under Articles 22, 22A (1), 22B (2) and (7), 22C (1), 22D (2) and (6), 144, 148A, 148B and 148G.
(4) Except as otherwise provided in clause (3), the President may, in his discretion, consult the Council of
Presidential Advisors before performing any of his functions referred to in clause (2) (c) to (i).
(5) The Legislature may be law make provision to require the President to act after consultation with, or on 45
the recommendation of, any person or body of persons other than the Cabinet in the exercise of his functions
other than
(a) functions exercisable in his discretion; and
(b) functions with respect to the exercise of which provision is made in any other provision of this
Constitution. 50
END QUOTE

THEREFORE, I VIEW THE PRESIDENT IS OBLIGATED TO ENSURE THAT THE
CONSTITUTION IS APPROPRIATELY COMPLIED WITH AND SO ANY LAWS
VALIDLY ENACTED WITHIN THIS CONSTITUTION. MEANING, THAT ANY LAWS 55
PROVIDING FOR THE IMPOSITION OF THE DEATH PENALTY ARE ULTRA VI RES
AND PROHIBITED FROM BEING ENFORCED.

QUOTE

Page 55
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CHAPTER 2
The Executive
Executive authority of Singapore.
23. --(1) The executive authority of Singapore shall be vested in the President and exercisable subject to the
provisions of this Constitution by him or by the Cabinet or any Minister authorised by the Cabinet. 5
END QUOTE

The constitution using the wording by him or the Cabinet thereby allows the president to
exercise Executive powers without the Cabinet, subject to the Constitution.
10
QUOTE
Cabinet.
24. --(1) There shall be in and for Singapore a Cabinet which shall consist of the Prime Minister and such
other Ministers as may be appointed in accordance with Article 25.
(2) Subject to the provisions of this Constitution, the Cabinet shall have the general direction and control of 15
the Government and shall be collectively responsible to Parliament.
END QUOTE

While this entitles the Cabinet to control the Government it does not rule out the President from
exercising powers in regard of enforcement of law and/or treaties enacted subject to the 20
Constitution, and as such to honour any treaty which Singapore made with the Commonwealth of
Australia.
QUOTE
Commonwealth citizenship.
139. --(1) In accordance with the position of Singapore within the Commonwealth, every person who is a 25
citizen of Singapore enjoys by virtue of that citizenship the status of a Commonwealth citizen in common
with the citizens of other Commonwealth countries.
(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. 30
END QUOTE

QUOTE
Application of Third Schedule.
140. Until the Legislature otherwise provides by law, the supplementary provisions contained in the Third 35
Schedule shall have effect for the purposes of this Part.
END QUOTE

QUOTE
Restrictions on preventive detention. 40
151. --(1) Where any law or ordinance made or promulgated in pursuance of this Part provides for preventive
detention
(a) the authority on whose order any person is detained under that law or ordinance shall as soon as may be,
inform him of the grounds for his detention and, subject to clause (3), the allegations of fact on which the
order is based, and shall give him the opportunity of making representations against the order as soon as may 45
be; and
(b) no citizen of Singapore shall be detained under that law or ordinance for a period exceeding 3 months
unless an advisory board constituted as mentioned in clause (2) has considered any representations made by
him under paragraph (a) and made recommendations thereon to the President.
(2) An advisory board constituted for the purposes of this Article shall consist of a chairman, who shall be 50
appointed by the President and who shall be or have been, or be qualified to be, a Judge of the Supreme
Court, and two other members, who shall be appointed by the President after consultation with the Chief
Justice.
(3) This Article does not require any authority to disclose facts the disclosure of which would, in its opinion,
be against the national interest. 55
[M 151
(4) Where an advisory board constituted for the purposes of this Article recommends the release of any
person under any law or ordinance made or promulgated in pursuance of this Part, the person shall not be
detained or further detained without the concurrence of the President if the recommendations of the advisory
board are not accepted by the authority on whose advice or order the person is detained. 60

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END QUOTE

QUOTE
Date of coming into operation of Constitution.
156. Subject to the provisions of Part XIV, this Constitution shall come into operation immediately before 5
16th September 1963.
END QUOTE

QUOTE
Rights, liabilities and obligations. 10
161. --(1) All rights, liabilities and obligations of Her Majesty in respect of the Government shall on and after
the commencement of this Constitution be rights, liabilities and obligations of the State of Singapore.
(2) In this Article, rights, liabilities and obligations include rights, liabilities and obligations arising from
contract or otherwise, other than rights to which Article 160 applies.
[104 15
Existing laws.
162. Subject to this Article, all existing laws shall continue in force on and after the commencement of this
Constitution and all laws which have not been brought into force by the date of the commencement of this
Constitution may, subject as aforesaid, be brought into force on or after its commencement, but all such laws
shall, subject to this Article, be construed as from the commencement of this Constitution with such 20
modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity
with this Constitution.
END QUOTE
Again;
QUOTE 25
and all laws which have not been brought into force by the date of the commencement of this Constitution
may, subject as aforesaid, be brought into force on or after its commencement, but all such laws shall, subject
to this Article, be construed as from the commencement of this Constitution with such modifications,
adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this
Constitution. 30
END QUOTE

This clearly does provide for the application of the The European Convention for the
protection of Human Rights and Fundamental Freedoms (the ECHR)!
Australians do not want a constitution perverted by politicians and judiciary but one that if it is 35
going to be a different kind of constitution then it must be the Peoples will political and civil
rights (and include specific provisions for human rights), etc
One has to compare the legal principles embedded in the Commonwealth of Australia
Constitution Act 1900 (UK) versus what is now fabricated how this constitution applies, and it
will be obvious that it has resulted to a perversion of the rights of the people having minimised 40
their rights considerably while so to say expanding the rights of politicians and judges.
To me, this cannot be accepted by the People.
The constitution must always be held to be that expresses the will of the people and not some
concocted version of the constitution that has absolutely nothing to do with the true meaning and
application of the constitution. 45
.
The judiciary, and so the judges involved, in my view didnt just let down the People but I view
betrayed their rights and liberties. In my view none of the judges involved could ever be trusted.
This as they should have known that it was beyond their powers to alter the true meaning and
application of the constitution. 50
As a matter of fact Sykes v Cleary also I view was wrongly decided in that s44 specifically was
restricted to a person who at the time of taking up the seat (and not when the election was held)
was in a position of contract with the Commonwealth and not with a State. This too I have set out
considerably in my published books in the INSPECTOR-RIKATI series on certain
constitutional and other legal issues. 55

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To have political opponents and/or former political opponents forced to appear before a Royal
Commission as to perhaps gain political millage from such expensive Royal Commission is not
and never should be a purpose to establish a Royal Commission.
To investigate local State internal matters within the building industry in my view neither can
justify a Federal Government establishing a Royal Commission. 5
As such I object to the Royal Commission to investigate matters which are within State
jurisdiction. Taxpayers should not have to feed an expensive Royal Commission merely so to say
for the mates of a political party in power to have some so to say quick get rich scheme.
The issue of jurisdiction or the lack thereof as much applies to a Royal Commission as it does
to the judiciary. 10

QUOTE
JURISDICTION the power to hear and determine a case. 147 P.2d 759, 761. This power may be
established and described with reference to particular subjects or to parties who fall into a
particular category. In addition to the power to adjudicate, a valid exercise of jurisdiction requires 15
fair notice and an opportunity for the affected parties to be heard. Without jurisdiction, a court's
judgment is void. A court must have both SUBJECT MATTER JURISDICTION and
PERSONAL JURISDICTION (see below). See also territorial jurisdiction; title jurisdiction."
END QUOTE
. 20
QUOTE
SUBJECT MATTER JURISDICTION refers to the competency of the court to hear and
determine a particular category of cases. Federal district courts have "limited" jurisdiction
in that they have only such jurisdiction as is explicitly conferred by federal statutes. 28 U.S.C.
1330 [EDITOR'S NOTE: see also 40 U.S.C.S. 255] et seq. See LIMITED [SPECIAL] 25
JURISDICTION. Many state trial courts have "general" jurisdiction to hear almost all
matters. The parties to a lawsuit may not waive a requirement of subject matter jurisdiction.
END QUOTE

(USA) 13 Supreme Court Law Case Reports: 30
QUOTE
12. If any Tribunal (court) finds absence of proof of jurisdiction over a person and subject matter, the case
must be dismissed. Louisville v. Motley 2111 US 149, 29S. CT 42. The Accuser Bears the Burden of Proof
Beyond a Reasonable Doubt.
35
13. Lack of Federal Jurisdiction can not be waived or overcome by agreement of parties. Griffin v.
Matthews, 310 F supra 341, 342 (1969): and Want of Jurisdictionmay not be cured by consent of parties.
Industrial Addition Association v. C.I.R., 323 US 310, 313.
END QUOTE
. 40
The following applies as much to Federal laws of the Commonwealth of Australia as it does to
federal laws in the USA; http://familyguardian.tax-
tactics.com/Subjects/LawAndGovt/ChallJurisdiction/AuthoritiesArticle/AuthOnJurisdiction.htm
QUOTE
37 Am Jur 2d at section 8 states, in part: "Fraud vitiates every transaction and all contracts. Indeed, the 45
principle is often stated, in broad and sweeping language, that fraud destroys the validity of everything into
which it enters, and that it vitiates the most solemn contracts, documents, and even judgments."
END QUOTE
And
QUOTE 50
The general misconception is that any statute passed by legislators bearing the appearance of law constitutes
the law of the land. The U.S. Constitution is the supreme law of the land, and any statute, to be valid, must be
in agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail.
This is succinctly stated as follows:
The general rule is that an unconstitutional statute, though having the form and name of law, is in 55
reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from
the time of its enactment, and not merely from the date of the decision so branding it. An
unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a
statute leaves the question that it purports to settle just as it would be had the statute not been enacted.

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Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no
rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies
no acts performed under it. . .
A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede
any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is 5
superseded thereby.
No one is bound to obey an unconstitutional law and no courts are bound to enforce it.
END QUOTE
Sixteenth American Jurisprudence
Second Edition, 1998 version, Section 203 (formerly Section 256) 10
Sixteenth American Jurisprudence 2d; SS: 256 & 257:
"The general rule is that an unconstitutional statute is in reality no law, but is wholly void, and
ineffective for any purpose; since unconstitutionality dates from the time of it's enactment, and not
merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is
as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle 15
just as it would be had the statute not been enacted. 'Such an unconstitutional law is void', the general
principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or
authority to anyone, affords no protection, and justifies no acts preformed under it . . . 'A void act
cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any
existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is 20
superseded thereby. 'No one is bound to obey an unconstitutional law and no courts are bound to
enforce it." . . . The fact that one acts in reliance on a statute which has theretofore been adjudged
unconstitutional does not protect him from civil or criminal responsibility ....
QUOTE Main v. Thiboutot, 100 S. Ct. 2502 (1980).
The law provides that once State and Federal jurisdiction has been challenged, it must be proven. 25
END QUOTE

QUOTE Hagens v. Lavine, 415 U.S. 533,
Once jurisdiction is challenged, it must be proven
END QUOTE 30

QUOTE Standard v. Olsen, 74 S. Ct. 768,
No sanctions can be imposed absent proof of jurisdiction.
END QUOTE
35
QUOTE Basso v. Utah Power & Light Co., 495 2nd 906 at 910,
Jurisdiction can be challenged at any time, even on final determination.
END QUOTE
.
QUOTE Thompson v. Tolmie, 2 Pet. 157, 7 L.Ed. 381; Griffith v. Frazier, 8 Cr. 9, 3L. Ed. 471. 40
Where there is absence of jurisdiction, all administrative and judicial proceedings are a nullity and
confer no right, offer no protection, and afford no justification, and may be rejected upon direct
collateral attack.
END QUOTE
. 45
QUOTE Yunghanns & Ors & Yunghanns & Ors & Yunghanns [1999] FamCA 64
(2) The Court always has jurisdiction to entertain proceedings for the purpose of and up
to the point of deciding whether it has jurisdiction to make the orders sought in the
proceedings.
(3) In carrying out that limited exercise of jurisdiction, the Court is required to determine any 50
essential facts upon which the existence of its jurisdiction to make the orders sought ultimately

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depends (the jurisdictional facts). That determination is a function which is incidental to the
exercise of the jurisdiction referred to in (2) above.
END QUOTE
And
QUOTE Yunghanns & Ors & Yunghanns & Ors & Yunghanns [1999] FamCA 64 5
(6) Once a respondent challenges the Courts jurisdiction to make the orders sought, the Court,
before considering the adjudicational facts, must find the existence of the jurisdictional facts, on
the balance of probabilities.
END QUOTE
10
QUOTE.
FAMILY LAW RULES 20042003 No. 375 - RULE 3.05
Objection to jurisdiction
(1)
If, in a Form 3A, a respondent objects to the jurisdiction of the court, the respondent will not 15
be taken to have submitted to the jurisdiction of the court by also seeking an order that the
application be dismissed on another ground.
(2)
The objection to the jurisdiction must be determined before any other orders sought in the
Form 3A. 20
END QUOTE
.
Director General, Department of Commerce v Cianfrano and Anor [2008] NSWADTAP 56 (24 J uly 2008) NEW
SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL
QUOTE 25
3 The Tribunal decided, contrary to the Departments submission, that it did have jurisdiction to determine the
adequacy of search question: Director-General, Department of Commerce and anor (No 2) [2006] NSW
ADT 195. The matter was listed for further directions. The Tribunals orders were as follows:
1. First Respondents objection to jurisdiction dismissed.
2. Tribunal to reconvene to make further directions as appropriate. 30
END QUOTE
.
Trapman v Sydney Water Corporation & Ors [2009] FMCA 942 (16 September 2009)
QUOTE
1. Accordingly, I find that the Court has jurisdiction to deal with the matters contained in Particulars (a)(ii), 35
(v), (vii), (viii), (ix), (x), (xi) and (xii) of Exhibit 1.
1. It follows that I find that the Court does not have jurisdiction to deal with the matters contained in
Particulars (a) (i),(iii), (iv) and (vi) of Exhibit 1.
1. I make orders accordingly.
END QUOTE 40
.
Watson v Director-General, Department of Services, Technology and Administration [2010] NSWADT 44 (12
February 2010)
QUOTE
He also stated that, if the Tribunal agreed this view, he would seek an order that the Respondent pay the 45
Applicants costs occasioned by the objection to jurisdiction on an indemnity basis.
END QUOTE
And
QUOTE
The orders to be made 50

64 For the foregoing reasons, each of the applications constituting these proceedings is dismissed for want of
jurisdiction.

65 In consequence, the Tribunals orders made on 6 January 2010 are discharged. 55

66 In addition, the directions hearing set down for 15 February 2010 is vacated.

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END QUOTE

Act I nterpretation Act 1901; (Cth)
15A Construction of Acts to be subject to Constitution
QUOTE 5
Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative
power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have
been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to
which it is not in excess of that power.
END QUOTE 10

Harris v Caladine[1991] HCA 9; (1991) 172 CLR 84 (17 April 1991)
QUOTE CCH 92-217 page 78485 (1991)
The Court could not make an order which otherwise fell outside its jurisdiction merely because the parties
consent to it.. 15
END QUOTE
.
Law Encyclopedia: Coram
[Latin, Before; in the presence of.]
The term coram is used in phrases that refer to the appearance of a person before another 20
individual or a group. Coram non judice, "in the presence of a person not a judge," is a
phrase that describes a proceeding brought before a court that lacks the jurisdiction to
hear such a matter. Any judgment rendered by the court in such a case is void.

Bowers v Smith (1953) 1 ALL ER 320 (Re Clarke Hall) and (Morrison on Children, 7 Ed, P3) 25
QUOTE
"... the first business of the court is to try to issue whether or not the case is bought within the terms of the
statute, and only if this be proven by proper evidence can the court proceed to decide upon treatment"
END QUOTE
30
Aggregate I ndustries UK Ltd., R (on the application of) v 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 judgment IN THE CAUSE, SESSION 2005-06 [2005] UKHL 42 on appeal from: [2003] EWCA Civ
168
QUOTE 35
1. As it happens and as it seems to me, much of what was submitted by Mr Howell and Mr Sales with regard
to this aspect of the first ground of challenge in the present case echoed what Laws LJ had to say in his
judgment in Tower Hamlets from paragraph 31 onwards and, for that reason and because Laws LJs
judgment is clearly very much in point, it is both appropriate and helpful to quote extensively from it, as
follows: 40
31. The approach in Strasbourg to cases where a first instance decision-maker does
not of itself satisfy Article 6(1), but it is claimed that the defect is as it were cured by a
right of appeal to or review by an independent court, is to ascertain whether in the
circumstances the court possesses what has been called full jurisdiction. The genesis
of this expression is I think to be found in Albert and Le Compte v. Belgium (1983) 5 45
EHRR 533. That was a case in which doctors suspended from practice by a disciplinary
tribunal complained of violations of Article 6(1). It is convenient to refer to the relevant
passage as it is quoted by Lord Hoffman in Alconbury, where it is followed by reasoning
to which with respect I would attach considerable importance in the context of the present
case: 50
86. In Albert and Le Compte v Belgium (1983) 5 EHRR 533
the court said, at paragraph 29, that although disciplinary jurisdiction
could be conferred upon professional bodies which did not meet the
requirements of Article 6(1) (e.g. because they were not established by
law or did not sit in public): 55

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None the less, in such circumstances the Convention
calls at least for one of the two following systems:
either the jurisdictional organs themselves comply
with the requirements of Article 6(1), or they do not
so comply but are subject to subsequent control by a 5
judicial body that has full jurisdiction and does
provide the guarantees of Article 6(1).
87. The reference to full jurisdiction has been frequently cited in
subsequent cases and sometimes relied upon in argument as if it were
authority for saying that a policy decision affecting civil rights by an 10
administrator who does not comply with Article 6(1) has to be
reviewable on its merits by an independent and impartial tribunal. It
was certainly so relied upon by counsel for the respondents in these
appeals. But subsequent European authority shows that full
jurisdiction does not mean full decision-making power. It means full 15
jurisdiction to deal with the case as the nature of the decision requires.
88. This emerges most clearly from the decisions on the English
planning cases But the leading European authority for the
proposition that it is not necessary to have a review of the merits of a
policy decision is Zumtobel v. Austria (1993) 17 EHRR 116. The 20
Zumtobel partnership objected to the compulsory purchase of their
farming land to build the L52 by-pass road in the Austrian Voralberg.
The appropriate government committee heard their objections but
confirmed the order. They appealed to the administrative court, which
said that the government had taken proper matters into account and that 25
it was not entitled to substitute its decision for that of the administrative
authority. They complained to the Commission and the European court
that, as the administrative court could not independently assess the
merits and the facts of the case, it did not have full jurisdiction
within the meaning of the Albert and Le Compte formula. The 30
European court said, at paragraph 32, that its jurisdiction was sufficient
in the circumstances of the case, Regard being had to the respect
which must be accorded to decisions taken by the administrative
authorities on the grounds of expediency and to the nature of the
complaints made by the Zumtobel partnership. 35
32. Later in his speech in Alconbury Lord Hoffman referred to the case of Bryan v UK
(1995) 21 EHRR 342, and in particular to the opinion of Mr Nicholas Bratza (as he then
was) in the Commission:

Lord Hoffman proceeded to point out that Mr Bratzas opinion had influenced the 40
decision of the Court in Bryan, which said in paragraph 45 of the judgment:
in assessing the sufficiency of the review available to Mr Bryan on
appeal to the High Court, it is necessary to have regard to matters such
as the subject matter of the decision appealed against, the manner in
which that decision was arrived at, and the content of the dispute, 45
including the desired and actual grounds of appeal.

37. These decisions seem to me to reflect an important truth about the relationship
between the first instance decision and the decision of the court on appeal or review, in
this class of case where it is said that the later court process guarantees Article 6 50
compliance where that is not satisfied by the earlier determination. We have seen that in

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such cases the later court must possess full jurisdiction (Albert and Le Compte), and
that this means full jurisdiction to deal with the case as the nature of the decision
requires (Alconbury paragraph 87). But what the nature of the decision requires is by
no means limited to a consideration of the question whether, in light of the subject-matter
of the case, a court compliant with Article 6 standards must possess the power to 5
investigate and decide the facts for itself. Assuming only that in any particular milieu
disputes of fact may arise, it is necessary also to confront the question whether the first
instance decision-maker internal review, Review Board, whatever it may be is
established and constituted in such a way that it may be expected to arrive at fair and
reasonable decisions. That may be a live and real question even though, for want of 10
sufficient independence, or publicity, or any other factor, such a first instance decision-
maker does not satisfy Article 6. Its failure to meet the Article 6 standards by no means
closes off the relevance of its processes for the overall judgment that has to be made
which takes account also of the second stage review or appeal in an independent court.
15
39. Now I may gather the threads together. We are dealing with a state of affairs in which
a first instance decision-maker, whose determination touches the citizens civil rights,
does not meet the standards imposed by ECHR Article 6(1). Such a state of affairs arises
within a setting or regime created by Act of Parliament. There will generally be access to
a court by way of review or appeal against the first decision. It may be provided by the 20
Act itself. If the Act is silent, then at common law recourse may be had to the judicial
review court. If the Act gives a right of appeal to a court on the merits, factual as well as
legal, Article 6 is plainly complied with: such a court on any view possesses full
jurisdiction. But the commoner situation is where the right of appeal is on law only.
Subject to the remedies provided for (and to any points of procedure), that will be 25
equivalent to judicial review. The critical question, then, is this: in these two-tier cases,
what are the conditions which determine whether the court process at the second tier,
taken with the first instance process, guarantees compliance with Article 6(1)?
40. As I have shown, the extent to which the first instance process may be relied on to
produce fair and reasonable decisions is plainly an important element. But it is not to be 30
viewed in isolation. The matter can only be judged by an examination of the statutory
scheme as a whole; that is the necessary setting for any intelligent view as to what is fair
and reasonable. Where the schemes subject matter generally or systematically involves
the resolution of primary fact, the court will incline to look for procedures akin to our
conventional mechanisms for finding facts: rights of cross-examination, access to 35
documents, a strictly independent decision-maker. To the extent that procedures of that
kind are not given by the first instance process, the court will look to see how far they are
given by the appeal or review; and the judicial review jurisdiction (or its equivalent in the
shape of a statutory appeal on law) may not suffice. Where however the subject-matter of
the scheme generally or systematically requires the application of judgment or the 40
exercise of discretion, especially if it involves the weighing of policy issues and regard
being had to the interests of others who are not before the decision-maker, then for the
purposes of Article 6 the court will incline to be satisfied with a form of inquisition at
first instance in which the decision-maker is more of an expert than a judge (I use the
terms loosely), and the second instance appeal is in the nature of a judicial review. It is 45
inevitable that across the legislative board there will lie instances between these
paradigms, sharing in different degrees the characteristics of each. In judging a particular
scheme the court, without compromise of its duty to vindicate the Convention rights, will
pay a degree of respect on democratic grounds to Parliament as the schemes author.
41. I intend the whole of this approach to be consonant with Lord Hoffmans reasoning in 50
Alconbury and I believe it to be so. And what was said by Lord Hoffman in
Alconbury at paragraph 79 is, I think, reflected by the circumstance that civil rights
are more likely to be directly engaged in a scheme where the finding of fact is a general
or systematic feature; but where judgment, discretion, and issues of policy predominate,
the scheme is more likely to be one in which decisions made under it determine or 55
affect civil rights.

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43. I should indicate moreover that, although there were sharp issues of primary fact
falling for determination in the present case, that is not a necessary feature in a s.202
review, and certainly not a systematic one. As often as not there will be no real question
of fact, and the decision will turn on the weight to be given to this or that factor against an 5
undisputed background: Now clearly the statutory scheme is either compliant with
Article 6 or it is not. Its compliance or otherwise cannot vary case by case, according to
the degree of factual dispute arising. That would involve a wholly unsustainable
departure from the principle of legal certainty. In my opinion, judged as a whole, this
statutory scheme lies towards that end of the spectrum where judgment and discretion, 10
rather than fact-finding, play the predominant part.
44. I think it important also to recognise the potential scope of the judicial review
jurisdiction, replicated in this scheme in HA s.204. The judge has ample power to decide
whether the review officers decision was one which was properly available to her on the
evidence which she had. Given that (as I would find) the s.202 process does not of 15
itself fulfil Article 6, the judge is perfectly entitled, within the jurisdiction given him by
s.204, to subject the earlier decision to a close and rigorous analysis.
1. In contrast to Tower Hamlets, the 1981 Act does not provide for any form of statutory appeal or review
against a decision by English Nature to confirm an SSSI pursuant to section 28(5). Accordingly, any review
of such a decision must be by common law recourse to the High Courts powers of judicial review. In the 20
present case, therefore, it seems to me that the central question which arises under this sub-issue is whether
the High Court, when exercising its powers of judicial review, possesses full jurisdiction to deal with the
case as the nature of the decision requires: see Albert and Le Compte at paragraph 29, Alconbury at
paragraph 87 and Tower Hamlets at paragraph 37. If the answer to that question is that the High Court
does possess such full jurisdiction, then the composite process comprising English Natures procedures 25
and the High Courts powers of judicial review will comply with the requirements of Article 6(1).
END QUOTE

As shown below we are to have liberties just that I view the judges of the High Court of
Australia would trample upon those embedded legal principles of the constitution. 30

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 35
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
And
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 45
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
QUOTE 50
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

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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 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 5
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. 10
END QUOTE

And also consider:
QUOTE 15
Mr. DEAKIN.- In this Constitution, although much is written much remains unwritten,
END QUOTE

Hence, as a CONSTITUTIONALIST I pursue the true meaning and application of the
constitution, including the embedded legal principles. 20
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 25
those principles are enforced, will all have been the work of Australians.
END QUOTE
And
QUOTE 30
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
35
The Fair work act 2009 in my view is clearly to expand Commonwealth powers in violation of
the legal principles embedded in the constitution.
QUOTE Mr. DEAKIN:
They both desire to retain for their Several States for all time the privilege of controlling industrial 40
disputes within their own borders.
END QUOTE
.
QUOTE Mr. CARRUTHERS: 45
England. But here we are framing a written Constitution. When once that Constitution is framed we
END QUOTE
. 50
QUOTE Mr. SYMON.-
The relations between the parties are determined by the contract in the place where it occurs.
END QUOTE
And 55
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
And
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
And 10
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.
END QUOTE 15

We therefore have that bit by bit judges have eroded the true meaning and application of the
constitution and I view the commissioner in this Royal Commission has been participating in this
and hence for this also I view not a fit and proper person to conduct the Royal Commission.
20
Much may be tried to make out from any reference of powers but again no Parliament can do so
without the consent of the electors of the State. After all, it is not just transferring legislative
powers but by it also interfering with the State Supreme Court judicial powers as to minimise this
in regard State parliament has such constitutional powers to refer legislative powers as such.
25
As I understand it there was a Builders Labourers Federation Royal Commission in 1981. There
was a 1992 N.S.W. Royal Commission into the Building Industry. There was this 2001 Cole
Royal Commission and one has to ask which one, if any including the current Royal Commission
into the Building Industry has a valid constitutional basis? The fact that previous Royal
Commissions were held doesnt mean it all was constitutionally valid! If a Royal Commission 30
was held outside constitutional powers then one cannot rely upon it that somehow it is an
authority to rely upon to somehow give legal justification to the current Royal Commission.

QUOTE
Mr. WISE.-If the Federal Parliament chose to legislate upon, say, the education question-and the
Constitution gives it no power to legislate in regard to that question-the Ministers for the time being in each
state might say-"We are favorable to this law, because we shall get 100,000 a year, or so much a year, from
the Federal Government as a subsidy for our schools," and thus they might wink at a violation of the 40
Constitution, while no one could complain. If this is to be allowed, why should we have these elaborate
provisions for the amendment of the Constitution? Why should we not say that the Constitution may be
amended in any way that the Ministries of the several colonies may unanimously agree? Why have this
provision for a referendum? Why consult the people at all? Why not leave this matter to the Ministers
of the day? But the proposal has a more serious aspect, and for that reason only I will ask permission to 45
occupy a few minutes in discussing it.
END QUOTE

INSPECTOR-RIKATI on IR WorkChoices legislation, A book about the validity of the High Courts 14-11-
2006 decision ISBN 978-0-9751760-6-1 (Book-CD), 978-0-9751760-7-8 (Book-B&W), 978-0-9751760-8-5 50
(Book-Colour)
QUOTE Chapter 007A The Great Deception
Chapter 007A The Great Deception

* Gary, The Great Deception by whom? 55

Page 66
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**#** INSPECTOR-RIKATI, just read the Chapter 034T of the book (published on 17-3-
2007);

INSPECTOR-RIKATI on the battle SCHOREL-HLAVKA v BLACKSHI RTS
For the quest of JUSTICE, in different ways. Book on CD. 5
ISBN 978-0-9580569-4-6 was ISBN 0-9751760-4-3

QUOTE Chapter 034T
Gary, The Great Deception?
10
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
LEASE, etc.
Anyhow, I quote below the document The Great Deception; 15

The Great Deception

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

In my 2-8-2003 correspondence, published previously in my book (30 September 2003);
25
INSPECTOR-RIKATI on CITIZENSHIP
A book on CD about Australians unduly harmed.
ISBN 978-0-9580569-6-0 was ISBN 0-9580569-6-X

I included the following, in regard of the issue of the detention of David Hicks; 30

QUOTE

http://store.yahoo.com/4crests/magnacarta.html
When representatives of the young republic of the United States gathered to draft a constitution, they turned 35
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 granted by Magna Carta were not to be arbitrarily canceled by subsequent English
laws.
40
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 the sixth states

. . . the accused shall enjoy the right to a speedy and public trial, by an impartial jury. Written 575 years 45
earlier, Magna Carta declares

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 we deny or delay, right or justice.
In 1957 the American Bar Association acknowledged the debt American law and constitutionalism had to 50
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 by a king to his subjects; the Constitution of the United States is the establishment of a
government by and for "We the People."
55

Page 67
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st
Magna Carta
(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or 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.
5
(40) To no one will we sell, to no one deny or delay right or justice.

(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.
10
(49) We will at once return all hostages and charters delivered up to us by Englishmen as 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. 15

(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: 20

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 25
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) 30
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 Constitution is binding on those 35
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
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 40
Constitution are.

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 45
Debates;

Mr. OCONNOR.-The amendment will insure proper administration of the laws, and afford their protection 50
to every citizen.
Mr. SYMON.-That is insured already.
Mr. OCONNOR.-In what way?

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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, 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 5
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 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 10
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 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. 15
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?
Mr. OCONNOR.-I do not think so, and I did not say so. But I say that, under the Constitution of the 20
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 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] 25
Mr. FRASER.-We might provide a safe-guard, at any rate.
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 right of action for tort in 30
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 defect in
the railway laws not conceding this right. The position has been laid down in regard to the Queen in the case I 35
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 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 40
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.

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Mr. DEAKIN.- 5

. 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 liberty-the 10
liberty and the means to achieve all to which men in these days can reasonably aspire. A charter of
Mr. SYMON (South Australia).-I wish to say one word or two before we part. I do not intend to enter into
any detailed examination of, or any elaborate apology for, the Constitution which we have been engaged in 15
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 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 20
the barons of England from a reluctant king. This new charter is to be given by the people of Australia
to themselves.

Again;
the Crown is bound to refer a petition of right to the courts for decision, because it is provided by 25
Magna Charta that justice cannot be denied, sold, or delayed.

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. 30

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;
35
Essenberg v The Queen B55/1999 (22 June 2000)
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 40
the doctrine of this Court. We do not make a decision as to whether 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 parliamentary expression rather 45
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
document for the peace order and good government-1-Hansard.doc in Chapter 034O 50


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Sir SAMUEL GRIFFITH: I agree that these words appear rather startling. [start page 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 5
to adopt 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?
Sir SAMUEL GRIFFITH: No; but laws of the commonwealth, limited to laws for the peace, order, 10
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 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 the only laws which 15
can apply are laws for the peace, order, and good government of the commonwealth.

Mr. BARTON: 20
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 Commonwealth, it was thought perfectly safe to
adopt them. 25
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 of the Commonwealth outside the three-mile limit
could possibly apply. 30
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.
35
Amendment suggested by the House of Assembly of Tasmania:
Omit the words "for the peace, order, and good government of the commonwealth, lines 3, 4, and 5."
The Hon. E. BARTON (New South Wales)[10.32]: This is an amendment which was made in the legislature 40
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:
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 45
jurisdiction on all questions relating to the protection of life and property, and the enforcement of contractual

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rights of every 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 limit the powers and jurisdiction of the provincial legislatures, and to vest the 5
residuum of legislative authority in the Dominion of Canada in the federal parliament. The words in 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 domain of the provincial legislatures. That decision, in its effect, appears to 10
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 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 15
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 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 20
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 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. 25
I have read these reasons through very carefully, and I have been unable to discover 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 certain navigation laws were not for the peace, order, and good government of the 35
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 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 40
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 Drafting
Committee.
Amendment negatived. 45

Again;
Surely that is sufficient, without our saying definitely that their legislation should be for the peace,
order, and good government
50
HANSARD 13x-1898 Constitution Convention Debates (Official Record of the Debates of the National
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. 55

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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. 5


Mr. DEAKIN.- 10

. 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 liberty-the 15
any detailed examination of, or any elaborate apology for, the Constitution which we have been engaged in 20
upon which we are about to invite the peoples of Australia to vote. The Great Charter was wrung by 25
to themselves.

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 30
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
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 35
High Court of Australia do not comprehend this!

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 Chapter 40
* 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
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 45
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
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 50
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

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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 5
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 10
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! 15

* Are you aware I asked just one question and you respond with about 7 pages answer! And it
wasnt even fully about it all such as ULTRA VIRES, as I understood this Chapter was going to
be about!
20
**#** 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

25
When we look at the 2006 WorkChoices decision then it appears to me we lack a competent
High Court of Australia to consider and hand down a judgment based upon the true
meaning and application of the constitution.
.
As quote below: 30

2006 decision ISBN 978-0-9751760-6-1 (Book-CD), 978-0-9751760-7-8 (Book-B&W), 978-0-9751760-8-5
(Book-Colour)
QUOTE Chapter 022A Failure of the case 35
D\'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 (10 March 2005)
HIGH COURT OF AUSTRALIA
GLEESON CJ, McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
RYAN D'ORTA-EKENAIKE APPLICANT
AND VICTORIA LEGAL AID & ANOR RESPONDENTS 40
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 10 March 2005 M61/2003
GLEESON CJ, GUMMOW, HAYNE AND HEYDON JJ;
As s 71 of the Constitution says, what is "vested in a Federal Supreme Court, to be called the High Court of
Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with
federal jurisdiction" is the judicial power of the Commonwealth, that is, the judicial power of the national 45
polity. No matter whether the judicial branch of government is separated from the other branches of
government (as it is and must be at the federal level[29] but, at least generally, is not at the State level[30]) it
is, in Quick and Garran's words[31], "the third great department of government".
END QUOTE Chapter 022A Failure of the case

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Lets look as to what the Framers of the Constitution held the High Court of Australia was to be.
.
QUOTE Mr. BARTON:
It is provided that instead of, as before, the Parliament having power to constitute a judiciary, there
shall be a Supreme Court, to be called the High Court of Australia, as a part of the Constitution-that I
believe to be an improvement-and other courts which the Parliament may from time to time create or
invest with federal jurisdiction. 10
END QUOTE
.
Australasian Convention),
QUOTE Mr. OCONNER (New South Wales).- 15
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

Therefore, the High Court of Australia to claim that it is the third department of government 20
means that it holds that it is part of the Government and not independent as is required under the
provisions and the embedded legal principles in the constitution.

Little wonder then that when in 2003 I had the Governor-General as first Defendant the 7 judges
of the High Court of Australia visited the governor-General, albeit at the time concealing this 25
from me, and subsequently dismissed my case. To me this was fraternising with the first
defendant and the subsequent dismissal was without legal justification. It is a mere matter of
record who were the 7 judges at the time of the High Court of Australia!
Also, earlier in 2003 I had lodges on 18 February 23 that the Commonwealth of Australia
couldnt invade a friendly country as unless and until the Governor-General published a 30
DECLARATION OF WAR against a country intended to be invaded (such as Iraq) no authority
lies with a Minister of Defence to authorise Australian soldiers to invade Iraq. And a Prime
Minister has no such constitutional authority, nor the Cabinet!
Then, again, there is the prerogative right to declare war and peace, an adjunct of which it is that the
Queen herself, or her representative, where Her Majesty is not present, holds that prerogative. No one
would ever dream of saying that the Queen would declare war or peace without the advice of a
responsible Minister. 40
END QUOTE

QUOTE 45
Mr. DEAKIN: We can make an exception in favour of imperial interests. We have no desire to interfere
with the imperial prerogative in matters of war and peace!
END QUOTE
.
HANSARD 6-3-1891 Constitution Convention Debates (Official Record of the Debates of the National 50
QUOTE
Sir SAMUEL GRIFFITH: At all events, I would ask hon. members to pause before they determine upon
asking the Queen to surrender all her prerogatives in Australia. For my part, I believe that all the
prerogatives of the Crown exist in the governor-general as far as they relate to Australia. I never 55
entertained any doubt upon the subject at all-that is so far as they can be exercised in the commonwealth.

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END QUOTE

So, here I as a CONSTITUTIONALIST seeks to have the High Court of Australia invoking
jurisdiction and it simply as I view it deliberately railroaded my applications.
First, when the Deputy Registrar refuses to accept my application that was lodged for filing on 5
18 February 2003 and so I seek a review before a judge. On 19 February a judgment was given
that the 18 February 2003 application was refused for filing. The Deputy Registrar THEN
MARKED ON THE DOCUMENTATION HOW I SHOULD AMEWND THE
APPLICATION TO MAKE IT ACCEPTABLE, and so on 18 March 2003 I lodged with the
High Court of Australia the amended (as directed by the Deputy Registrar) application, which 10
was again refused (a different Deputy Registrar). So I sought a review. And now it comes. The
judge on 19 February 2003 (the day of the unconstitutional murderous armed invasion into Iraq)
then refuses to accept the filing of the application citing the 18 February 2003 application lodged.
So, the 18 March 2003 application itself still remains on foot!
In 2002 I then requested the Commonwealth Ombudsman to investigate why the Australian 15
Electoral Commission didnt check refugee detention Centres as to people allowed to vote in the
2001 Federal election. The Commonwealth Ombudsman refused to investigate. And, again the
Deputy Registrar High Court of Australia likewise refused my 18 February 2003 and 18 March
20903 applications for filing, and the High Court of Australia itself twice refused the 18 February
2003 application but not the 18 March 20903 application, which again is still pending. 20
Low and behold in 2005 Mr John Howard request the Commonwealth Ombudsman to
investigate and this after the Cronelia Rau and Vivian Alvarez Solon cases and then it was found
numerous others were illegally held in detention. The commonwealth Ombudsman obviously
didnt reveal in his report his own culpability by refusing to investigate in 2002. Nor did the High
Court of Australia bother about this. 25
QUOTE
Mr. BARTON.-The High Court cannot act unless complaint is made, but the Parliament can act
whenever it likes. 30
Sir EDWARD BRADDON.-Only on motion.
END QUOTE

QUOTE Thomas Jefferson:
"The germ of destruction of our nation is in the power of the judiciary, an irresponsible body - working 35
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 government from which we separated.".
END QUOTE
40
Not a single judge of the High Court of Australia in my view was competent in relevant
constitutional matters, for example the Sue v Hill case was not one based upon facts that is
constitutionally valid facts but was based upon whatever the judges appeared to assume.

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.

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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. 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 5
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

Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian 10
Convention)
QUOTE Mr. ISAACS.-
We want a people's Constitution, not a lawyers' Constitution.
END QUOTE
15
QUOTE
Mr. CARRUTHERS:
This is a Constitution which the unlettered people of the community ought to be able to understand.
END QUOTE 20
.
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 25
Constitution we are framing is not yet passed. It has to 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 weal or woe during the whole 30
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
. 35
And then consider:
Hansard 20-4-1897Constitution Convention Debates
QUOTE Mr. HIGGINS:
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. 40
END QUOTE
And
Convention)
QUOTE 45
Mr. HIGGINS.-Suppose the sentry is asleep, or is in the swim with the other power?
Mr. GORDON.-There will be more than one sentry. In the case of a federal law, every member
of a state Parliament will be a sentry, and, every constituent of a state Parliament will be a
sentry. As regards a law passed by a state, every man in the Federal Parliament will be a
sentry, and the whole constituency behind the Federal Parliament will be a sentry. 50
END QUOTE

But a person who as a sentry places a constitutional matter before the High Court of Australia
can then be lumped with cost. Clearly in gross defiance of the intentions of the Constitution.
55

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http://www.austlii.edu.au/cgi-
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 5
makers[51].
END QUOTE

Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi [1999] HCA 27 (17
June 1999) 10
QUOTE
Constitutional interpretation
1. The starting point for a principled interpretation of the Constitution is the search for the intention of its
makers[51]. That does not mean a search for their subjective beliefs, hopes or expectations. Constitutional
interpretation is not a search for the mental states of those who made, or for that matter approved or 15
enacted, the Constitution. The intention of its makers can only be deduced from the words that they used in
the historical context in which they used them[52]. In a paper on constitutional interpretation, presented at
Fordham University in 1996, Professor Ronald Dworkin argued, correctly in my opinion[53]:
"We must begin, in my view, by asking what - on the best evidence available - the
authors of the text in question intended to say. That is an exercise in what I have called 20
constructive interpretation[54]. It does not mean peeking inside the skulls of people dead
for centuries. It means trying to make the best sense we can of an historical event -
someone, or a social group with particular responsibilities, speaking or writing in a
particular way on a particular occasion."
2. The application which this Court has given to some words and phrases of the Constitution would almost 25
certainly have surprised most of those who participated in the making of the Constitution. Most of them
could not have foreseen the extent to which the application of those words and phrases would enable the
Commonwealth to dominate the federation and reduce the power of the States to control their domestic
affairs. But that does not mean that this Court's interpretation of our Constitution has lacked fidelity to the
intentions of those who made the Constitution. 30
3. Where the interpretation of individual words or phrases of the Constitution is in issue, the current doctrine
of the Court draws a distinction between connotation and denotation or, in other words, between meaning
and application. Thus, in Ex parte Professional Engineers' Association[55] Windeyer J said:
"We must not, in interpreting the Constitution, restrict the denotation of its terms to the
things they denoted in 1900. The denotation of words becomes enlarged as new things 35
falling within their connotations come into existence or become known. But in the
interpretation of the Constitution the connotation or connotations of its words should
remain constant. We are not to give words a meaning different from any meaning which
they could have borne in 1900. Law is to be accommodated to changing facts. It is not to
be changed as language changes." 40
END QUOTE
Yet, the High Court of Australia gave Australian Citizenship a totally different meaning then
that which is constitutionally applicable!

45
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 Parliament to pass
legislation that would really defeat all the principles inserted elsewhere in the Constitution, and, in fact, 50

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to play ducks and drakes with it. That is not what is meant by the term "Trust the Federal
Parliament."
END QUOTE
.
As a matter of fact it somehow seemed to create a constitutional monarchy even so this is not 5
permitted within the legal principles embedded in the constitution.
.
QUOTE
Mr. SYMON ( South Australia ).- 10
END QUOTE 20

Now admittedly I didnt have English as my native language and neither had any formal
education in the English language but even with myself professed crummy English it seems
that the above quoted statement is very clear that the Commonwealth of Australia is no more but
a political union (One may compare with the European Union). Therefore it is not a country 25
and neither can have as such a nationality of Australian Citizenship. Judgers have no
constitutional powers to twist or pervert the true meaning of the constitution!

QUOTE 30
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 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 35
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, and a very strong reason why
it should not be accepted. It is not a lawyers' question; it is a 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 40
Parliament," I am willing to do it in everything which concerns the working out of this Constitution, but I am
not prepared to trust the Federal Parliament or anybody to take away that which is a leading inducement for
joining the Union.
END QUOTE
. 45
QUOTE
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 50
to secure a dual citizenship. That is the very essence of a federal system. We have debated that matter again
and again. 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.

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END QUOTE

QUOTE
Mr. SYMON.-Yes. Mr. Wise asked why should New South Wales or Victoria-to take a case which is 5
extremely unlikely to occur-prohibit a citizen of the neighbouring colony from acquiring property in the
legislating colony, or only allow him to acquire it under adverse conditions? But why not? The whole control
of the lands of the state is left in that state. The state can impose what conditions it pleases-conditions of
residence, or anything else-and I am not aware that a state has surrendered the control of the
particular administration of its own lands, or of anything that is left to it for the exercise of its power 10
and the administration of its affairs. I would much prefer, if there is to be a clause introduced, to have the
amendment suggested by Tasmania, subject to one modification, omitting the words-"and all other persons
owing allegiance to the Queen." That would re-open the whole question as to whether an alien, not
admitted to the citizenship here-a person who, under the provisions with regard to immigration, is
prohibited from entering our territory, or is only allowed to enter it under certain conditions-would be 15
given the same privileges and immunities as a citizen of the Commonwealth. Those words, it seems to
me, should come out, and we should confine the operation of this amendment so as to secure the rights of
citizenship to the citizens of the Commonwealth. I think, therefore, that with some modification the
amendment suggested by Tasmania would be a proper one to adopt.
END QUOTE 20

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. 25
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. 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 30
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 arrived at.
END QUOTE
35
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 40
which is unfavorable to the people 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 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 45
that which we contemplate, and then overload your 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 have sought to remove, but every 50
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 Constitution; and,

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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 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, 5
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 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 10
Government and the Parliament of the day-shall not become the masters of those whom, as to the
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, 15
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. Having provided for all these things, I think this Convention has done
well. 20
END QUOTE

It should be noted that in the issue of FAILING TO VOTE I appealed both cases to the County
Court of Victoria and on 19 July 2006 comprehensively defeated the Commonwealth of
Australia in both appeals. As I (and so unchallenged) submitted the framers of the Constitution 25
embedded the legal principle in the constitution that one only was to vote if one desired to
vote. In fact they refused to give the commonwealth legislative powers to make voting
compulsory. S128 of the constitution refers to electors who voted and not to electors who are
eligible and/.or registered to vote. In this case I also (and so unchallenged) submitted that
Australian Citizenship is a political status and not a nationality, as Australians are 30
constitutionally Subjects of the British Crown regardless if politicians and judges do not go
along with this as none of them can undermine or amend the constitution.
Much hype was given by RUVANI WICKS, Assistant Director, Civil Branch of the Department of
Justice for the Attorney- General at the time (2002) about the 1988 Constitutional Commission and in
which he then stated to me: 35
CORRESPONDENCE 18 November 2002
As explained in my previous letter, citizenship is a matter for the Commonwealth, not the States. You
indicated that you were naturalized in 1994. As result of that, you are an Australian citizen.

In his previous correspondence he claimed; 40
QUOTE
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 45
certainly not been called into question in any case before the High Court of Australia.
END QUOTE

There is no provision within the Commonwealth of Australia Constitution Act 1900 (UK) our
principal source of legislative powers and how to amend the constitution for any Constitutional 50
Committee to twist and pervert the true meaning and application of the constitution.

As set out below Australian Citizenship was a legal term embedded in the constitution and
frequently used by the Framers of the Constitution referring to the political rights of being a
member of Australian citizens that is derived from having obtained State citizenship and not 55
otherwise. As set out below also. Aboriginals who had Colonial/State citizenship by way of s41

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of the constitution had therefore Australian Citizenship. Yet, the 19667 con-job referendum
purported to amend s51(xxvi) as to be able to give Aboriginals citizenship. And as I understand it
the Constitutional Committee seemed to support this referendum, by this showing its
incompetence to understand the true meaning and application of the constitution.
5
I, in 2012, and 2013, for example represented (as a Professional Advocate) James, a solicitor and
barrister for 22 years in various proceedings, to which he personally didnt attend!
This oxymoron that we have constitutional lawyers must be departed from.
Anyone with a bit of understanding of legal proceedings will be well aware that if you have 100
cases determined by the courts in which each party is legally represented then 100 set of lawyers 10
will be proven wrong and 100 sets of lawyer will be on the winning sides. As such, a 50%
change that the legal advice of the legal team engaged can be right or wrong. If we were to apply
a 50% rate with doctors doing operations then they would be deemed to be charlatans.
Lawyers do no more but give their views (opinions) about legal matters and they can be dead
wrong! 15
The mere fact that I comprehensively defeated the commonwealth with its highly paid lawyers in
the County Court of Victoria on 19 July 2006 and without them challenging any of my
submissions based upon constitutional legal principles may underline that lawyers are not 100%
correct in their legal opinions.
And to underline this, the High Court of Australia itself is on record: 20
.
That case (a previous decision of the High Court, Foggit, Jones & Co v NSW (1915) 21 CLR 357) was
sitting..... The arguments which now commend themselves to me as conclusive did not find entrance to 25
END QUOTE
.
In my view a Royal Commission must act as like the judiciary legal principles set out below!
30
QUOTE Australian Agricultural Co Ltd. v F.E.D.F.A of Australasia (1913) 17 CLR 261 and 278
The oath of a justice of this court is ' to do right to all manner of people according to law' Our sworn duty is
to the law itself and to the organic nature of the constitution first of all. If, then, we find the law to be
plainly in conflict with what we or any of our predecessors errornously thought it to be, we have, as I
conceive no right to choose between giving effect to the law, and maintaining an incorrect interpretation, It 35
is not, in my opinion, better that the court should be persistently wrong than that it should be ultimately
right..
Whatever else may be said with respect to previous decisions - and it is necessary here to consider the
principals upon which a court should act in particular cases - so much at least emerges as is undoubtedly
beyond challenge, that where a former decision is clearly wrong, and there are no circumstances 40
countervailing the primary duty of giving effect to the law as the court finds it, the real opinion of the court
should be expressed.
END QUOTE

In Re O (infants) (1971) Ch 748,754 and 755 45
QUOTE
In my considered opinion the law now is that if an appellate court is satisfied that the decision of the lower
court is wrong, it is it's duty to say so and act accordingly.
END QUOTE
. 50
QUOTE
As an advocate he is a minister of Justice equally with a judge, A Barrister cannot pick or choose his
clients...He must accept the brief and do all he honourably can on behalf of his client. I say 'All he
honourably can' because his duty is not only to his client. He has a duty to the court which is 55
paramount. It is a mistake to suppose that he is a mouthpiece of his client to say what he wants: or
his tool to do what he directs. He is none of those things. He owes his allegiance to a higher cause. It is

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the cause of truth and Justice. He must not consciously misstate the facts. He must not knowingly
conceal the truth. He must not unjustly make a charge of fraud, that is, without evidence to support
it. He must produce all relevant authorities, even those that are against him. He must see that his client
discloses, if ordered, all relevant documents, even those that are fatal to his case. He must disregard the
specific instructions of his client, if they conflict with his duty to the court. 5
END QUOTE

As a Professional Advocate (now retired) I held the Foster doctrine always essential in any
representation.
. 10
The problem is that with a Royal Commission, as with the Constitutional Committee, when it
hands down a decision people tend to take this for granted and this is why it is so serious that the
Royal Commission is not going to go along with any nonsense that may have been presented in
the past being it by a judge or a constitutional committee, etc, but that it will be open minded and
deal with matters/issues as is constitutionally applicable. 15

The following part of transcript indicates how the High Court of Australia itself is confusing citizenship with
nationality.
20
Dang, Ex parte - Re MIMA M118/2001 (18 April 2002)
Office of the Registry
Melbourne No M25 of 2001
25
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 18 APRIL 2002, AT 10.17 AM

KIRBY J: Your clients were not British subjects.
MR MAXWELL: That is so. If I might move immediately to the question of what Patterson decided. In our 30
respectful submission, what Patterson decided was this, that allegiance, not citizenship, is the touchstone for
determining alien status.
KIRBY J: There is only one reference to citizenship in the Constitution, is there not, and that is the
disqualification that was considered in Sue v Hill?
MR MAXWELL: Yes, your Honour. 35
KIRBY J: There is no other reference to the concept and, indeed, we did not have a Citizenship Act until
quite late in the history of the Commonwealth.
MR MAXWELL: One of the critical aspects which comes through clearly in the judgments, both the
dissenting and the majority judgments in Patterson, is the point your Honour has just adverted to: alien is a
concept of our Constitution, citizenship is a concept of our statute law. Your Honours Justices Gummow and 40
Hayne in the joint judgment put in these terms the proposition advanced by the prosecutor in Patterson,
namely, at paragraph [223]:
alienage and citizenship . . . do not occupy the relevant universe of discourse -
That, we would respectfully adopt, though your Honours disagreed in the result, as being the proposition
which the majority did endorse. That is to say, it does not follow that because a person is a non-citizen he or 45
she is, by definition, an alien because you must be one or the other.
What Patterson held and why Nolan had to be overruled was that there is a category of non-citizen non-alien.
That is what your Honours held by majority Taylor was. He was not a citizen and he was not an alien.
GUMMOW J: I should make clear to you I do not regard that matter as closed.
MR MAXWELL: I am indebted to your Honour. 50
GUMMOW J: It seems to me absolutely fundamental.
MR MAXWELL: It is absolutely fundamental and, in our respectful submission, there can be no conclusion,
with respect, other than that is what this Court found because Mr - - -
GUMMOW J: I am not so sure about that. The Solicitor-General goes into all of this.
MR MAXWELL: Your Honour, we note with some surprise that less than a year after that decision was 55
handed down, the Commonwealth is inviting this Court to reopen it and overrule it if it says what we say it
says.
GUMMOW J: The question really is whether it should have overruled Nolan. Now, I will not hold you up.

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MR MAXWELL: Your Honour, in our respectful submission, this Court did overrule Nolan. Four Justices
of the Court addressed the question whether it should be overruled and each of them decided for reasons
given that it should and it is no longer the law in this country, in our respectful submission, and we will go
further and say that necessarily Pochi was at best left under a considerable cloud, if not necessarily overruled
by that overruling. 5
GUMMOW J: It seems to me what I was putting to you really can be put to one side because you have to go
further in this case, and that is the real point.
MR MAXWELL: Indeed, your Honour. Plainly enough - - -
KIRBY J: As I understand your argument, it is that until Taylor there was clear authority that there was a
simple clear criterion for alienage, non-citizen. 10
MR MAXWELL: Exactly so.
KIRBY J: After Taylor, whatever is the criterion, the base has shifted.
MR MAXWELL: Yes, your Honour.
KIRBY J: It did not have to shift further than British subjects to resolve the issue of Patterson.
MR MAXWELL: That is so. 15
KIRBY J: But you say, having shifted the basis, a new, stable basis must be found and therefore this case
presents the obligation to find that new, stable basis.
GUMMOW J: And what is the stable basis?
MR MAXWELL: The starting point is that the obligation of allegiance can come into existence between a 20
person and the Queen of Australia otherwise than by the taking out of citizenship. The next question is, by
what criteria is the establishment of that obligation to be determined - I am sorry, your Honour?
GAUDRON J: You say "can". Did Patterson go further than say at a certain time it could come into
operation by that method in respect of a certain category of people?
MR MAXWELL: That is so, but - - - 25
GAUDRON J: Yes. Well, you have to go beyond that to say that since, when? At all relevant times it has
been possible and it continues to be possible?
MR MAXWELL: Your Honour, all I need to establish is that at the date of the relevant decisions the
obligation of allegiance had been assumed by these individuals. It is quite separate, of course, from the
discussion which was necessarily engaged in for Patterson about the evolution of the Crown in right of 30
Australia and its separation from Britain. These are, plainly, individuals who have never been British
subjects. This is a different case. But as his Honour Justice Kirby has put, we will be inviting the Court to
explore this category of non - - -
GUMMOW J: We do not set off on exploration tasks. We respond to submissions and we are trying to find
what your submission is. 35
MR MAXWELL: Of course, your Honour.
GUMMOW J: You can tantalise us with this notion of a stable basis. The question is: what is it?
MR MAXWELL: In these cases - - -
GUMMOW J: Bearing in mind that Patterson was, on one view of it, all about the changing nature of the
British Commonwealth, to use that expression. 40
MR MAXWELL: Your Honour, we put the stable basis on three bases in these cases as set out in our
submission. First, we say that each of these individuals renounced his allegiance to his country of birth by
fleeing from a regime which could not guarantee him protection.
GUMMOW J: How do notions of allegiance work with republican systems of government? As I understand
it, the whole notion of citizenship dates back to the American and French Revolutions, where they had to 45
replace notions of allegiance which were monarchical with something else and they devised the notion of
citizenship. These gentlemen never owed allegiance to any sovereign, did they?
MR MAXWELL: No, though your Honour will - - -
KIRBY J: Although they would have been born during the reign of Prince Sihanouk. Cambodia was not a
separate colony of France; it was a protectorate. So I think that is something we would not know without 50
some detail.
GUMMOW J: That is right.
MR MAXWELL: But, your Honour, in our respectful submission, as a matter of principle this will not turn
on whether a person came from a country which was a monarchy or a republic. The concept of allegiance - - -
GUMMOW J: The point I am trying to make to you is that notions of allegiance come out of English 55
medieval feudalism. That is where it comes from - monarchical feudalism.
MR MAXWELL: With respect, we fully appreciate that. As your Honours in the lengthy joint judgment
explained, the concept has developed very significantly since the original notion of personal loyalty to a lord.
It became, and it was declared in the Court of Queen's Bench in the 1880s, as your Honours pointed out, that
it changed from a personal obligation or an obligation to the sovereign in his or her personal capacity to an 60

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obligation to the sovereign in his or her political capacity. That is just one respect in which the discussion
about allegiance in the 21st century is a different discussion from that which it would have been under more
confined notions.
HAYNE J: And it is pointed up by your proposition that each renounced allegiance to the country of his birth
because the regime of the day would not protect him. 5
HAYNE J: But is allegiance concerned with allegiance to the government? Is it more abstracted a notion
than allegiance to whatever regime is in power?
GAUDRON J: There is a further question of course too and that is, by whose law is this renunciation to be
determined? That was addressed in Sykes and the general principle of international law is that that is 10
determined by the laws of the country of which the person was a citizen or to which he or she owed
allegiance.
MR MAXWELL: Yes, your Honour.
GAUDRON J: So it is not a simple question, I should have thought.
MR MAXWELL: No, and it is not necessary for our argument, with respect, that there have been no 15
renunciation.
GAUDRON J: Well - - -
MR MAXWELL: It is not. It happens to be the fact and it makes our cases a fortiori, but what is the critical
question is whether it can be said of the person that he has assumed the obligation of allegiance and our
submission puts it that it - - - 20
GAUDRON J: And you put that as a one-way traffic as well.
MR MAXWELL: Well, with respect, no we do not. We gratefully accept the analysis of their Honours in the
joint dissenting judgment, which points out that changes in the relationship of allegiance can occur either by
the joint act of the parties to it, the subject and the sovereign, or by the unilateral act of either, which, apart
from anything else, enables us to put to one side the old notion that allegiance was perpetual and the natural- 25
born subject could never give it up. The concept of naturalisation scotched that notion 100 years ago. It can
be given up by a formal act. We submit that one would expect to find a parallel notion of renunciation by
conduct, but we accept - and our learned friends say just because you have renounced your citizenship of
another country does not mean you have become a citizen of Australia. Well, we accept that. We do not
assert that the renunciation somewhere else makes you a subject of the Queen of Australia. There needs to be 30
an act or a course of conduct of which it can be said that this person enjoys the protection of the Queen of
Australia and owes her obligations of allegiance.
GLEESON CJ: At which stage did your clients cease to owe allegiance to Cambodia or Vietnam
respectively?
MR MAXWELL: At the time they sought refuge in refugee camps or, alternatively, upon the grant of 35
permanent residence visas to each of them, enabling them to come from the refugee camp to Australia. At
that point, we have argued in our submission that the self-description as a refugee is the explanation or the
manifestation of the renunciation.
GLEESON CJ: They are interesting alternatives, in practice, because if the former is correct, they would
have been in the same situation even if they had been refused visas. 40
MR MAXWELL: That is so. Again, they were granted visas and that means that - and we will take your
Honours in due course to the findings of fact in the Tribunal in each case - each of these persons was a
refugee at the time and, as I understand it, there is no dispute about that. We do not say that an application for
refugee status was made and determined in Australia. There is no evidence that that occurred. Nor is there
any doubt but that they were refugees in the sense in which that term is understood - defined in the 45
Convention. Your Honours will see in the material a question arises before the Tribunal "whether the
protection obligations which Australia owed under the Convention still obtained as at the date of the Tribunal
review?" Held: "No they don't. Conditions have changed in Cambodia or Vietnam. The protection obligation
does not subsist."
To come back to your Honour's question. The assertion of refugee status is the act of renunciation because it 50
is a statement that, "I cannot rely on the sovereign government of my country to protect me." Indeed, that
language is used in the Convention itself.
GLEESON CJ: Why did they need visas? I wondered if it was because they were aliens.
MR MAXWELL: Well, they otherwise had no right to enter Australia.
GUMMOW J: You seem to be asserting they did. Of course HYPERLINK 55
"http://www.austlii.edu.au/au/legis/cth/consol_act/c167/" the Constitution - - -
MR MAXWELL: As a matter of international law - - -
GUMMOW J: Forget about international law, because HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/c167/" the Constitution operated in some magical way.

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MR MAXWELL: No, your Honour. We conceded before Justice Hayne that these people had not - I think
we conceded they were aliens at the point of arrival. We will seek to qualify that concession by the protection
allegiance argument we have made in our reply. We start with the proposition that Australia owed obligations
of protection to these refugees under the 1951 Convention. At that point there was an acceptance of what is
described in the Refugee Convention in these terms, and it is in the material, a person is, "unable or . . . 5
unwilling to avail himself of the protection of that country".
What is helpful in this analysis, in our respectful submission, is what Sir John Salmond, in the Law Quarterly
Review article that we will take your Honours to, and the House of Lords in Joyce refer to as "the reciprocal
obligations of protection by the sovereign to the subject and allegiance by the subject to the sovereign."
KIRBY J: Could I just ask a factual matter, that is partly a legal matter. Was there any impediment to your 10
clients becoming naturalised Australian citizens?
MR MAXWELL: Not that I am aware of, your Honour, no. No application was made. At a certain point
they may have, by their criminal convictions, become unable to satisfy the "good character" requirement.
KIRBY J: Does one draw any inference at all from the fact that in the interval between their arrival as
children and their evictions, that they could have signified their allegiance to the Queen of Australia and the 15
people of Australia by becoming citizens but omitted, failed, refused to do so?
MR MAXWELL: In our respectful submission, no. One draws no inference because - and this comes back
to the fundamental point - the assumption of citizenship - we have put this in terms in the outline - is a
sufficient condition of allegiance but it is not a necessary condition, and that is what Patterson held. If that is
correct, then the non-taking out of citizenship does not disqualify a person from being a subject of the Queen 20
of Australia.
GAUDRON J: But are we not a little bit off the track here? From a constitutional point of view we are
concerned with aliens and non-aliens. At least in the case of persons who are not and never have been British
subjects is it not the case that it is well within the legislative power of the Parliament to decide and define
who are and who are not aliens? 25
CALLINAN J: That is what Mr Justice Barton said in Ferrando v Pearce.
GAUDRON J: But is that not the case, that it has legislative power to define who are and who are not aliens?
MR MAXWELL: Yes, but, with respect, to exclude from a statutory definition of aliens - let me put that
differently - to include within a statutory definition of aliens someone who is not is beyond power.
GLEESON CJ: But if granting a visa to someone produces the result that they are not an alien, then the 30
entire scheme of the Migration Act 1997 has miscarried, has it not? Its long title is it is "An Act relating to the
entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens".
Visas can be cancelled, can they not?

By the reasoning of the Framers of the Constitution (the Delegates to the Constitution Conventions) a subject to the 35
Crown was anyone who was subjected to the laws of the Crown regardless if they were aliens or not.

Shaw v Minister for I mmigration and Multicultural Affairs
HYPERLINK "http://www.austlii.edu.au/au/cases/cth/high_ct/2003/72.html" [2003] HCA 72
9 December 2003 40
B99/2002
10. However, contrary to the submissions for the applicant, the result of such a consideration of his position is
his classification as an alien for the purposes of HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/num_act/c167/s51.html" s 51 (xix) of the Constitution. Much of
the applicant's argument proceeded from the premise that, because the expression "British subject" could be 45
applied to him, he was not an alien. That premise is flawed. First, "British subject" is not a
constitutional expression; it is a statutory expression. Secondly, and more fundamentally, if "British
subject" was being used as a synonym for "subject of the Queen", an expression which is found in the
Constitution, that usage would assume that there was at the time of federation, and there remains today, a
constitutional and political unity between the UK and Australia which 100 years of history denies. 50
Hansard 2-3-1898 Constitutional Convention Debates
Mr. BARTON.- I did not say that. I say that our real status is as subjects, and that we are alike subjects of
the British Crown.

Mr. MUNRO:
. I am proud of being a citizen of the great British empire, and shall never fail to be proud of that
position.

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Mr. HOLDER:
5
because I take it that the legal bonds which bind us to the mother-country, to the great British Empire,

Mr. BARTON:
The association of the Queen with the action of the commonwealth is distinct, and is firmly embedded in 10
the whole bill. If that is done, there can be no association of the idea of republicanism with this bill.

Mr. BARTON.-Yes; and here we have a totally different position, because the actual right which a person has
as a British subject-the right of personal liberty and protection under the laws-is secured by being a 15
citizen of the States. It must be recollected that the ordinary rights of liberty and protection by the laws are
not among the subjects confided to the Commonwealth.

Dr. QUICK.- 20
we were not in any way interfering with our position as subjects of the British Empire. It would be
beyond the scope of the Constitution to do that. We might be citizens of a city, citizens of a colony, or
citizens of a Commonwealth, but we would still be, subjects of the Queen.

Mr. BARTON.-
We are subjects in our constitutional relation to the empire, not citizens. "Citizens" is an undefined term, and
is not known to the Constitution. The word "subjects" expresses the relation between citizens of the empire
and the Crown.
Sir GEORGE TURNER.-Is a naturalized alien a subject? 30
Mr. BARTON.-He would be a citizen under the meaning of this clause.
Sir GEORGE TURNER.-Suppose you say "subject" without definition, would that include
naturalized aliens?
Mr. BARTON.-Yes. Dr. Quick's definition is: Persons resident in the Commonwealth, either natural-born
or naturalized subjects of the Queen, and if they are subject to no disabilities imposed by the Parliament they 35
shall be citizens of the Commonwealth. Why not use the word "subject," and avoid the necessity of this
definition?
And
Mr. OCONNOR.-Exactly. It has two meanings, but we are only dealing now with the one meaning-
the general meaning. Mr. Isaacs' reference shows the danger that might be incurred by using the word 40
"citizen," because it might have the restrictive meaning the last decision imposes. All we mean now is a
member of the community or of the nation, and the accurate description of a member of the community
under our circumstances is a subject of the Queen resident within the Commonwealth."
Mr. SYMON.-A person for the time being under the law of the Commonwealth.
Mr. OCONNOR.-A person for the time being entitled to the benefits of the law of the 45
Commonwealth.
And

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Mr. BARTON (New South Wales).-If it is a fact that citizens, as they are called, of each state are also
citizens of the Commonwealth, there may be some little doubt as to whether this is not providing for
practically the same thing.
Mr. WISE.-No, there may be territories that is what I want to provide for.
Mr. BARTON.-In other portions of the Bill we use the words "parts of the Commonwealth" as 5
including territories, so that the object of Mr. Wise would be met by using the words "citizens of every
part of the Commonwealth" or "each part of the Commonwealth."
And
Mr. BARTON.-
We are subjects in our constitutional relation to the empire, not citizens. "Citizens" is an undefined 10
term, and is not known to the Constitution. The word "subjects" expresses the relation between citizens
of the empire and the Crown.
Sir GEORGE TURNER.-Is a naturalized alien a subject?
Mr. BARTON.-He would be a citizen under the meaning of this clause.
Sir GEORGE TURNER.-Suppose you say "subject" without definition, would that include 15
naturalized aliens?
Mr. BARTON.-Yes. Dr. Quick's definition is: Persons resident in the Commonwealth, either natural-born
or naturalized subjects of the Queen, and if they are subject to no disabilities imposed by the Parliament they
shall be citizens of the Commonwealth. Why not use the word "subject," and avoid the necessity of this
definition? 20
Dr. QUICK.-This definition does not interfere with the term "subject" in its wider relation as a member of
the empire or subject of the Queen.
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. 25
And
Dr. QUICK.-The regulation would have to specify the ground of disability.
Mr. BARTON.-Yes; but my honorable friend says not under any disability imposed by the Parliament.
Would not the difficulty be that if he were under any slight disability for regulative purposes, all his rights of
citizenship under the Commonwealth would be lost? 30
Mr. KINGSTON.-There might be a special disability on minors.
Mr. BARTON.-That might be one of the disabilities. Of course here the disabilities as to minors
would not matter much, but I would like to put this consideration to Dr. Quick, that if we use the term
"subject," or a person subject to the laws, which is a wider term, we shall avoid the necessity for a definition
of "citizen." You might say a subject or resident being the subject of the Queen. 35
And
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.

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The words "subject," "person," and "citizen" can be made subjects of controversy at 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.

And 5
Mr. ISAACS (Victoria).-I am afraid that the amendment is far too wide, unless we say that the disabilities
imposed by Parliament may extend to birth and race. This would, notwithstanding the rights conferred
under clause 52, deprive Parliament of the power of excluding Chinese, Lascars, or Hindoos who
happened to be British subjects.
And 10
Mr. GLYNN.-
I would like to mention, in connexion with what Mr. Isaacs said as to aliens, that this provision would
not interfere in the slightest degree in the way of preventing aliens from coming in, because it is only
when the aliens get inside the Commonwealth that this provision is to apply to them. The decision of the
Privy Council in the case of Ah Toy v. Musgrove was that an alien had no right to land here, but that decision 15
does not affect his citizenship after he has landed.
END QUOTE 19 7-2006 submission to the County Court of Victoria (unchallenged by Attorney-Generals)

Hansard 2-3-1898 Constitutional Convention Debates 20
Mr. BARTON.- I did not say that. I say that our real status is as subjects, and that we are alike subjects of
the British Crown.

Mr. MUNRO: 25
. I am proud of being a citizen of the great British empire, and shall never fail to be proud of that
position.

30
Mr. HOLDER:

because I take it that the legal bonds which bind us to the mother-country, to the great British Empire,

Mr. BARTON:
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.
40
QUOTE Chapter 032C CITIZENSHIP v NATIONALITY (INSPECTOR-RIKATI series of books)

Chapter 032C CITIZENSHIP v NATIONALITY
* Gary, I understand you claim Australians really are and remain to be British nationals?
45
**#** INSPECTOR-RIKATI, that is if they are natural born or naturalized. Australians who are neither are still
subjects of the British Crown for being under British rule until they leave British soil, as Australia is.

QUOTE 19-11-2002 correspondence to Victorian Attorney-General
WI THOUT PREJ UDI CE 50
Attorney General 19-11-2002
Victoria
Fax 9651 0577 AND TO WHOM IT MAY CONCERN
URGENT
Sir/Madam 55
Since 27-9-2002 I sought clarification about what, if any State citizenship I have as to be able to
obtain Australian citizenship, yet, in the recent 18 November 2002 response it was stated;

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As explained in my previous letter, citizenship is a matter for the Commonwealth, not the States. You
indicated that you were naturalized in 1994. As result of that, you are an Australian citizen.

This utter ridiculous response was provided by RUVANI WICKS, Assistant Director, Civil Branch of the
Department of Justice. 5

Edmund Barton (later becoming the first Prime Minister of Australia and thereafter a judge of the High Court of
Australia) made very clear during the convention, that if it isnt in the Constitution, then the Commonwealth had no
legislative powers.
10
RUVANI WICKS refers me to the Commonwealth Government to sort out matters, however this is clearly
unacceptable, this, as the State of Victoria and not the Commonwealth deals or must deal with State Citizenship!

Unless you can point out when there was a reference of legislative powers from the State of Victoria to the
Commonwealth approved within Section 128 of the Commonwealth constitution, I view, there never was and still is 15
no constitutional legislative powers by the Commonwealth to determine State or any other citizenship!
END QUOTE Chapter 032C CITIZENSHIP v NATIONALITY

It seems to me that on a constitutional basis Australian Citizenship is a political standing that is
AUTOMATICALLY obtained (subject to certain qualifications) when obtaining State 20
citizenship (so Territorial citizenship)

Let us also consider the following:

INSPECTOR-RIKATI on IR WorkChoices legislation, A book about the validity of the High Courts 14-11- 25
(Book-Colour)
QUOTE Chapter 022A Failure of the case
Australasian Convention) (Chapter 33 of the CD) 30
Mr. DEAKIN:
That reminds me of a point I was nearly passing. I may be pardoned for leaving this part of my argument in a
confessedly imperfect state; because, to answer all interjections would take too long. I shall be delighted to
resume the argument in Committee, to obtain more knowledge, and to challenge the advocates of the policy
to show that any expenditure can conflict with state rights properly so-called. Let them in the first 35
instance define state rights, and then let us see how they will be impaired. I will be second to no
delegate in my anxiety to preserve what I understand to be state rights. So anxious am I to preserve
them, that I would never dream of intrusting them to a senate. Let us know what state rights are, and
let us be careful to secure them under our constitution, so that they may never be liable to be swept
away. We should fail in our duty if we did not embody in our draft such a distinct limitation of federal 40
power as would put the preservation of state rights beyond the possibility of doubt.

Mr. MCMILLAN: It seems to me that we must decide whether we will give this power to the Federal 45
Government or leave it to the States. The object of Federation is, while federating on common matters,
not to interfere with the industrial and local life of the States. This is a proposition which goes a step too
far, as you are giving a distinct power to override the States legislation. Is the power simply to be
exercised with the consent of the States, or is it to be an overriding power.
Mr. KINGSTON: It is a power which the Federal Parliament may exercise. 50
An HON. MEMBER: If they make any law it will override any local law.
Mr. KINGSTON: Only where it is inconsistent.
Mr. MCMILLAN: I have no legal knowledge to guide me, but it seems to me that everything that we put
among these sub-sections is practically a power which necessarily overrides every other power, and therefore

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there is no doubt that while in some trade disputes their ramifications extend throughout the different
colonies, still they are to a great extent local matters of dispute.
Mr. HIGGINS: It will only apply where the dispute extends outside the limits of one colony.
Mr. MCMILLAN: Here again I am met by my want of legal knowledge; but it seems to me that it is a
difficult thing for the Federal Government to interfere, even where the ramifications of the disputes 5
extend beyond the limits of a colony, without the consent of the States. I think there are sufficient powers
in this Bill to enable some conjunction of interests between the Federal Government and the States in matters
of this kind being effected; but I do not think that there should be any power included in this Bill which
will so interfere with the local industrial life of any State as practically to dictate to the State with
regard to trade disputes. 10
Sir JOHN DOWNER: I confess I do not understand the clause, nor do I see what it means.
Industrial dispute extending beyond the limits of one colony
are the words used, but how can that happen?
Mr. HOWE: A maritime strike affects the whole national life.
Sir JOHN DOWNER: It does not extend beyond the limits of a State. The dispute is complete in itself 15
in each State. Because there is the same dispute in other colonies, it does not create a dispute extending
beyond the limits of the State. Each dispute is a dispute complete in itself [start page 784] in each State,
and each State will have power to deal with it. Such a provision I think will be a fertile source of
dispute. As far as the words are concerned, they appear to be simply meaningless, and I cannot
conceive any dispute which in itself can extend beyond the limits of the State. 20
Mr. CARRUTHERS: How about a dispute with the masters in one State and the men in another, as in the
shipping trade?
Sir JOHN DOWNER: That is not a dispute extending beyond the State. It may be a very difficult thing to
work out, but if it is to be done at all-and I can see great difficulty in doing anything with it, because it will be
extending the limits of the Commonwealth legislation to a most dangerous degree, which I think all the 25
colonies will not be prepared to accede to-it will be a departure from the proposition that there must be a
formula in which you can give the jurisdiction. These words, I submit, will not do it, because the dispute
will be a dispute in the State alone, and will not extend beyond it.
Mr. HOWE: I rise, as one of the laymen, in fear and trembling to give my opinion against those of the
legal luminaries here. A maritime dispute may affect the life of the nation. We have before seen the whole 30
commerce paralysed by these disputes, and if we give the telegraphic departments to the federal authority
why not give them authority to settle a national dispute which is endangering the commercial enterprise and
industrial life of the whole community. I am with Mr. McMillan on that point, and if these words will not
accomplish their object I want Sir John Downer to find words that will.
Mr. DEAKIN: I am entirely with my hon. and learned friend Mr. Higgins in the amendment he has moved 35
so far as he has indicated his purpose. I had the pleasure in 1891 of supporting the Premier of South Australia
when he made a similar proposition. It is a cause in which he has taken a continuous and active interest ever
since. Some of the difficulties which confront Sir John Downer confront me, although I see the problem from
another point of view. This sub-section would give concurrent federal power in dealing with industrial
disputes when they extend beyond the borders of a single State. The granting of such a power is desirable, 40
properly belonging to a Federal Government, because the disputes may be extended over large areas, and if
they are to be dealt with as a whole they must be dealt with by the Federal Parliament. Concurrent legislative
power here differs from the concurrent power usually given in other respects in this Bill. A dispute might
arise in South Australia, where there is a law now on its Statute-book dealing with industrial disputes.
So long as that dispute remained in South Australia it would be dealt with under that law. The federal 45
authority will also have a law perhaps different in its provisions, in many respects, from from the law
in South Australia. Directly the dispute in Adelaide overflowed to Western Australia or the Wimmera

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the power of the State law would cease and the power of the Federal law, which is a different law,
would begin.
An HON. MEMBER: So it ought to.
Mr. DEAKIN: Yes; but it will be difficult to determine the moment of overflow even if you can determine
the point of overflow. We can scarcely say it there is to be a law in each State that the federal law must not 5
differ from some, if not from all, of these. Consequently it will be a curious problem in relation to penalties
and observances for those concerned to know the moment when they have passed from under the dominion of
the State law to the dominion of the federal law. That is the great difficulty to settle. Although I am prepared
to support the motion of the hon. member, I see grave difficuties in this proposal which [start page 785] is to
retain the State law and federal law upon the same question as both may have to be applied in times of 10
emergency and urgency. If you had merely left power to the State to legislate on industrial questions until the
Commonwealth Legislature intervened, then the situation would be comparatively simple. But I know that
neither of my hon. and learned friends desires that. They both desire to retain for their Several States for
all time the privilege of controlling industrial disputes within their own borders. But then they are
confronted with the difficulties to which I have referred, and upon which I would desire the Drafting 15
Committee to throw some light so as to enable a determination to be come to. As to the time difficulty, I
suppose it could be determined by proclamation of the Federal Parliament that a particular industrial dispute
had ceased to be a State dispute, and had become federal. But the hon. member wants to obtain more than
that. He wants, if possible, to graft a federal law upon the State law in such a way that the federal law
should only be applied where the State law cannot be applied. If South Australia and Victoria had each 20
a law enabling them to deal with a dispute, it might be advisable that each State should deal with it. It
might be better that the dispute on the Victorian side should be dealt with according to the Victorian
law, and that it should be dealt with on the South Australian side according to the South Australian
law. But where the States altogether find themselves unable to cope with an intercolonial struggle, it
seems to be highly desirable that there should be provision for federal action. I hope the hon. gentlemen 25
will indicate to the Drafting Committee how they are going to distinguish between those two separate
spheres of action.
And
Mr. WISE: It would not be fair to criticise the language of this amendment too closely, but I entirely agree
with the observations that have been made by Sir John Downer and Mr. Deakin, that the amendment as now 30
drawn is very unsatisfactory. The language is either too large or too limited. In one sense it is hard to say
that any industrial dispute is a dispute outside the limits of the colony. I agree with Sir John Downer
that it is impossible to say when any dispute extends outside the limits of a colony, because a dispute is
always in one colony although it may be going on in every colony. In [start page 786] another sense every
dispute extends outside the limits of a colony. 35
An HON. MEMBER: Indirectly.
Mr. WISE: Sometimes, and sometimes directly. I rose rather to call attention to another aspect of the
question. If the effect of the amendment is really to provide for the possible establishment of a Federal Court
of Conciliation, I am at one with that object; but the essential part of the language used in the amendment-I
am not criticising casual expressions-indicates a much wider object, which would turn this power into a 40
weapon of very great danger. It would, I think, deprive those concerned in these industrial disputes, whether
as masters or employes, of one of their greatest safeguards. There is no matter which the industrial population
of Australia would more desire to confine to the local Parliaments, where they can make their influence upon
members felt, than matters affecting industrial disputes. To give the Federal Parliament power to make
laws affecting industrial disputes gives them authority to regulate by penalties every detail of the 45
industrial life of every trade in the colonies.
Mr. MCMILLAN: Hear, hear.
Mr. WISE: Surely that cannot be desired or intended. There is no matter in which varied local
development it; more necessary or desirable to a State than the development of its industrial
conditions, and the industrial conditions in every part of this continent in years to come may, and 50
probably will, very largely develop.

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Mr. HIGGINS: Will you not trust the Federal Parliament with the same powers as the States?
Mr. WISE: Will the working classes of this country be prepared to surrender the right of local self-
government over industrial disputes?
Mr. SYMON: Hear, hear.
Mr. HIGGINS: That is not my question. Will not the Federal Parliament be equally to be trusted as the 5
States
Mr. WISE: I do not think the Federal Parliament or any centralised authority will be as competent as
a local authority to deal with the necessary local conditions of trade.
Sir JOHN DOWNER: Hear, hear.
And 10
Mr. WISE: If a clause were put in, the Federal Parliament would have power to fix a uniform rate of
wages all through Australia in any particular trade.
Mr. HIGGINS: If that is so, and if the hon. member has great confidence in the popular character of this
Parliament
Mr. WISE: I prefer local authority. 15
At the very least and in those circumstances entitled to declare the 14 November 2006 to be
suspended pending the parties to return to the Court as to show cause why the 14 November
2006 judgment should be reinstated.
HIGH COURT OF AUSTRALIA 20
RYAN D'ORTA-EKENAIKE APPLICANT
AND VICTORIA LEGAL AID & ANOR RESPONDENTS
GLEESON CJ, GUMMOW, HAYNE AND HEYDON JJ; 25
Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with
federal jurisdiction" is the judicial power of the Commonwealth, that is, the judicial power of the national
government (as it is and must be at the federal level[29] but, at least generally, is not at the State level[30]) it 30
Where the High Court of Australia sees itself as part of the government, rather then a
independent body created under the Constitution then in itself this to me indicates the implied
bias. As where it consider itself to be a department of government then I view it has lost the
plot! Its function by this prevents it to be an independent arbitrator to adjudicate as a 35
GUARDIAN OF THE CONSTITUTION between the parties before the Court. It might have
quoted Quick & Garran but this is an ill-conceived conduct as if anything it underlines that the
High Court of Australia rather then to be a constitutional Court now seek to rely upon what
Quick & Garran might have assigned to them that somehow the High Court of Australia is under

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the control of the Government by being the third great department of government rather then
being an independent judicial body within the Commonwealth of Australia.
Mr. BARTON (New South Wales).-I beg to move- 5
That this Convention cordially invites the Prime Minister of each colony here represented to provide for the
supply of copies of the Draft of the Commonwealth of Australia Constitution Bill, as now finally adopted by
this Convention, to the electors of his colony.
This motion will, I hope, give the members of the Convention an opportunity to state from their places
in this chamber to the electors who sent them here their opinion of the Draft Bill and its provisions. I 10
think that on this, the last day of our meeting, it is only fit that some opportunity should be given to
honorable members so to express their opinions that the statement of them in an authoritative form, as
printed in the official report of the debates, may reach those whose verdict upon the Bill is so soon to be
sought.
15
It is very clear that the official reports of the Debates was intended all along to be used by those
who had to give their verdict upon the Bill. As such, the Hansard debates records very much was
to be used by the electors to give them an understanding what the Commonwealth Constitution
Bill was standing for.
Those who voted for the Bill clearly relied upon their political and religious freedoms as was set 20
out in the official records, and as such the Hansard official records of the Debates must be
considered as part of the Constitution. Hence the political freedom how to live is clearly
provided for by the Framers without undue government interference. Therefore, the
Commonwealth legal requirement to having to live in a certain manner as the Federal
Government may desire and in what manner (pattern) is unconstitutional, as like the piggy tail 25
case in the USA was!

30
Mr. GORDON:
These remarks are in themselves trite, but they are necessary to the short argument which I shall make, and
the point of which is, that in the Constitution we are about to formulate, [start page 317] we should make the
smallest draft which can be made consistently with cohesion, upon the allegiance of the people of these States
to the Governments under which they at present live. They are the governments to which they are 35
accustomed; they are the governments they have themselves moulded into effective legislative machines
under which a greater share of political liberty is experienced than in any countries the world ever saw

Mr. DEAKIN.-

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liberty and the means to achieve all to which men in these days can reasonably aspire.

Yes, I experienced this, as set out below in more details, where the High Court of Australia were
fraternizing with the first Defendant in proceedings before the court, and subsequently 5
railroaded, as I view it, the case.
A liberty that now is denied in unconstitutional manner by the very High Court of Australia who
was to be the GUARDIAN OF THE CONSTITUTION.
The liberty that people now are forced to accept federal government dictated contract conditions
regardless this was specifically prohibited by the Framers of the Constitution to be allowed. 10
What kind of liberty is this one may ask.

Mr. FITZGERALD: 15
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 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 20
structure, and whose name we revere and respect in this colony equally as in any other [start page 165]
part of her Majesty's dominions.

Sir JOHN DOWNER: The system to which I have just alluded has been in force 100 years, and has
worked well, and in beginning the erection of this new edifice we ought to be careful we do not make a
foundation mistake, for while we are pretending to make these judges the protectors of the citizens in the
Commonwealth, and even superior from certain points of view to Parliament itself, at the same time we ought
not to give Parliament, against whose unauthorised acts we intend the High Court to protect us, authority to 30
remove the judges without the greatest cause and the gravest trial. I think this is a matter well worthy of the
serious consideration of hon. members. We should make our Supreme Court so strong and powerful that no
Government will be able to set the Constitution at defiance owing to the presence of a majority in either
House, whereby an authority would be obtained that was never intended by the founders of the
Constitution. 35

And
Sir EDWARD BRADDON: I think the feeling in regard to this clause has been that it should be made
as difficult as possible to amend the Constitution. The idea underlying the clause is to provide that, while
an amendment of the Constitution is not made absolutely impossible, the Constitution shall not be so easily 40
capable of amendment that in any fluctuation of public opinion, any change of feeling on the part of
the people in some crisis of a temporary character, it might be changed.
Mr. DEAKIN: A majority of the whole people, and a majority of the States.
Sir EDWARD BRADDON: Yes; an absolute majority of the members representing the States in the
Senate and House of Representatives. I do not think this is too much to ask in such an important matter as an 45
amendment of the Constitution, and, while I would not say the Constitution should be such as could only be
amended by force of arms, I hope we shall provide all necessary safeguards against its being lightly
amended.
Mr. ISAACS: I hope these words will be eliminated. I should like to point out the meaning of the clause.
There is power given for the intervention of the people on the question of the amendment of their 50
Constitution, but that power is merely by way of veto. Unless the proposed amendment of the Constitution

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first succeeds in passing an absolute majority of both Houses of the Legislature the proposition never reaches
the people for their determination at all.
Mr. MCMILLAN: You mean there is no initiative like there is in Switzerland.
Mr. ISAACS: There is no initiative, but I mean something more. It is possible for an absolute majority of
either House to prevent the people from expressing their views on the amendment of the Constitution. I think 5
that is wrong. If we are to provide for a mere majority of the Legislature to alter the Constitution, then
I could understand the complaints of some of my hon. friends that that was too easy a mode, but the
decision of the Legislature in this case is not intended to be final, and the passing of the amendment of
the Legislature is intended to be the means of ascertaining whether this proposition is of so great an
importance, of such great interest, and of such necessity as to require the consultation of the people. I 10
can quite understand that circumstances have not failed to occur in some colonial Legislatures where by some
accident a proposition has passed the Houses, but has failed to get an absolute majority. I can quite
understand why it is necessary in cases where the voice of Parliament is sufficient in itself to establish a new
law amending the Constitution to have an absolute majority, and with much more reason than in the present
case. Although we are dealing with the question of amending the Constitution, we have to recollect that 15
it never can get passed into law without the sanction of a majority of the States and people. Now, surely
that is safeguard enough.
Mr. HOWE: An ordinary majority.
Mr. ISAACS: This is only preliminary to getting to the people, and then you have in the States the
amplest power of rejecting a proposal, and in the population you have similar power of rejecting a 20
proposal if it is not in accord with the views of the people.
And
Mr FRASER: If you have not an absolute majority of both Houses you allow a minority to past; the
amendment. The most liberal man on earth would not ask for such a proposition as that. The reference to the
United States is a different thing altogether, and has no analogy to our conditions. The 1891 Bill contained 25
the same provision, and why should you make an alteration merely for the sake of creating strife and
confusion? The Constitution should not be altered to every gust of wind that blows hither and thither.
Mr. HOWE: Who blows? The lawyers?
Mr. FRASER: It is not desirable that an alteration of the Constitution should be effected except at
the wish of the majority of the people. 30
And
Mr. LEWIS: I should like to call attention of the Committee to the way in which this clause is drawn. The
proposed alterations must be approved by the electors of a majority of the States. The people of the States
whose electors approve are also a majority of the Commonwealth. The proposed alteration should, in my
opinion, be approved by a majority of the States, and also by a majority of the electors who record their 35
votes upon the referendum that may be taken upon the proposed law. That is a very different thing to
what is presented here. I need not delay the Committee, because the difference will be seen at once. I have an
amendment to the effect that the proposed alteration should be approved by the electors of a majority of the
States and by a majority of the electors who vote.
Mr. BARTON: That would not secure a majority of the Commonwealth. 40
Mr. LEWIS: Under this system one large colony might join with two or three smaller ones, and their votes
would override the votes of another large colony which had joined with one of the small colonies,
notwithstanding that a large majority of the electors in the Commonwealth decided against the proposed
alteration.
And 45

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Mr. DEAKIN: I was struck by the point raised by Mr. Lewis. It Seems a very fair one to raise, and a very
fair one to insist upon if there were a uniform franchise through the Commonwealth. One obstacle is that in
South Australia at present there is a different franchise from that obtaining in any other portion of the
Australian continent, and the double voting power in that colony and in any which follow its example would
be certainly unfair to the remaining States. If the franchise were uniform I do not think that the more 5
populous States should have their abstinence from voting allowed for, as it is in this plan. It might even
enable them to negative a proposal which secured, not only a majority of the States, but actually a
majority of those persons who took the [start page 1026] trouble to go to the poll. This plan would not
enable a proposal to be carried unless the States in the majority were also the most populous States of the
group. It is right to require a majority of the States as States. But why should you require that the people of 10
the States whose electors approve of the alteration should also contain a majority of the people of the
Commonwealth? One can conceive that if you have one State much outstripping the others in population,
although You might have practically all the other States, except perhaps one small one, in favor of the
proposed reform, and although a majority of those who went to the poll were in favor of the proposed reform,
the population in the oustanding State would be so numerous that the majority of the States would not include 15
a majority of the Commonwealth. The amendment would be defeated solely by the abstinence from
voting of that very large State.
And
Mr. SYMON: That is not just, because you are not getting a majority of the people, only a majority
of those who vote -a quarter of the people may vote. I suggest that we ought to reconsider that part of the 20
agreement.
And
Mr. KINGSTON:
If you get two things, namely, a majority of the State electors who vote on the subject and a majority also
of the electors of the whole Commonwealth in favor of the proposed alteration, I think that is all you ought to 25
require.
And
Mr. BARTON: I should be glad to do anything that is reasonable, but Mr. Lewis's amendment as it stands
is one which we cannot accept. That is the one which proposes first that there should be a majority of the
States, and then a majority of the electors voting If we have five States joined together, of which one has 30
female suffrage, then the electors count for double those of the other States. Then, in the case of a State which
has the one man one vote system, that counts for two, and there is the difficulty. As no one can give me a way
out of the difficulty, I think we had better adhere to the proposal in the Bill.
And
Mr. KINGSTON: I think that to strike out the words would be both sufficient and effective. I would like 35
to know from Mr. Barton if he means that it should not become law without the consent of the electors
of the State. There is no provision for taking a poll.
Mr. BARTON: Yes; there is a provision for a poll. It is that it shall not be effective unless the majority of
the electors are in favor. It must be passed by the electors of a majority of the States, who are a majority of
the people of the Commonwealth. There is only one way of carrying a proposal, and that is by a majority. 40
Mr. KINGSTON: I suppose that is a majority of the people who vote, and would like the hon. member
to say so.
Again;
It might even enable them to negative a proposal which secured, not only a majority of the States, but
actually a majority of those persons who took the [start page 1026] trouble to go to the poll. 45

Again;

Page 97
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and also by a majority of the electors who record their votes upon the referendum that may be taken
upon the proposed law.
Again;
of those who vote -a quarter of the people may vote. I suggest that we ought to reconsider that part of the 5
agreement.
It refers to who record their votes and not who are registered/enrolled, as political liberty
ensures the right to abstain from voting.
Do not Members of Parliament themselves use this right to abstain from voting?
Mr. DEAKIN: The sub-section reads: 10
But an alteration by which the proportionate representation of any State in either House of the Parliament or
the minimum number of representatives of a State in the House of Representatives, is diminished, shall not
become law without the consent of the electors of that State.

This underlines that while Section 128 provides for the manner in which a Commonwealth of 15
Australia referendum is to be held it does however not deal with how State referendum must be
held regarding the referral of powers , the diminishing of representatives in the Federal
parliament, etc. nevertheless, as this documents sets out also the Commonwealth Powers
(I ndustrial Relations) Act 1996 is not constitutionally valid as it never had the approval by a
State referendum and neither did the Victorian parliament to make it a permanent reference of 20
legislative powers within the ambit of Subsection 51(xxxvii) of the Constitution. Likewise the
Victorian Parliament had neither any State referendum approval to support the purported
Australia Act 1986. The High Court of Australia, cannot, as it did in Sue v Hill make a political
conclusion/decision but is bound to determine matters on legal facts before the Court. It has no
constitutional position to assume some transformation of the Commonwealth of Australia 25
without even the approval of the electors by way of a Section 128 referendum, and the fact that
the judges themselves acknowledged that there was no decisive issue as a legislative action that
could even determine when this purported transformation occurred then the Australia Act 1986
is and remains to be ULTRA VIRES. This document provides various quotations in support of
this also. 30

Mr. DEAKIN: I trust the clause will not be passed without some little further consideration. The
proposition of the hon. member is one which I should have made myself, or, rather, which I was considering, 35
but for the obvious objection to me that it fulfils too much the idea of the hon. member, Mr. Donaldson, of
making reform almost impossible. I take it that one of the first principles of the Constitution is that we
present it to the several colonies, not as a complete constitution, but as one which they can make
complete; not as a constitution necessarily adapted to their needs and desires, but one which they can
themselves adapt to those needs and desires. The amendment of the hon. member, Mr. Playford, is fair, and 40
the only possible objection that can be raised against it is that it makes the carrying of amendments in the
constitution extremely difficult. But the question is whether that is not desirable in order that the amendments
that are carried may be equitable. The proposal that was carried in the Constitutional Committee, and
commended to the Convention, was, that first a majority of the states, and then of the whole of the people, be
required before any amendment be carried. The matter ought not to be lightly passed over, nor should there 45
be an acceptance or a rejection of the clause without debate.
Mr. GILLIES: There is some misapprehension about this matter. It is said that there shall be a majority of
the states, and then of the people; but in the house of representatives there is a majority of the people.

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Mr. MUNRO: No. Representatives very often vote against their promises. We want to refer the
question to the people!
And
Mr. OCONNOR.-If a state referred question of state finance it might be dealt with.
Mr. SYMON.-Does the honorable member say that that would be a desirable thing to do? 5
Mr. BARTON.-Is it not for the people of the state to determine whether it is desirable?
And
know we promised to do it; we know we have broken our promises; we acknowledge our transgressions, and 10
will refer the matter at once to the Federal Parliament"? Who would blame her? Certainly not South
Australia. Even in connexion with the question of rivers some point might arise that might concern two or
three colonies, and that could not concern all the colonies. That, again, might be a proper matter for reference,
but it could not be a common matter of legislation in respect of every state. I will now take the points Mr.
Deakin makes. He doubts whether this power of legislation will carry with it a power of raising the necessary 15
Again;
That, again, might be a proper matter for reference, but it could not be a common matter of legislation in
20
And
Mr. ISAACS (Victoria).-
Parliament the passing of any law that is to affect itself alone. But if it agrees with another state that some
law; not to be of universal application throughout the Commonwealth, but to affect it and that other state
alone, should be passed, power should be given in some such clause as this to ask the Federal Parliament to 25
enact that what both states desire shall be of common application to them.

Clearly, the Australia Act 1986 being a common matter in respect of every state fell outside the
provisions of Subsection 51(xxxvii)!
END QUOTE Chapter 022A Failure of the case 30

As the Framers of the Constitution made clear:
.
QUOTE Mr. MUNRO: 35
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: 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 40
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 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 45
.
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. 50
END QUOTE

Page 99
A 1
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.
QUOTE Mr. CARRUTHERS:
England. But here we are framing a written Constitution. When once that Constitution is framed we 5
END QUOTE
.
QUOTE Mr. SYMON.- 10
The relations between the parties are determined by the contract in the place where it occurs.
END QUOTE
And
QUOTE Sir EDWARD BRADDON (Tasmania).- 15
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
And
QUOTE
END QUOTE
And 25
QUOTE
END QUOTE 30
.
.
QUOTE
Mr. SYMON.-What relation has this to customs duties? The industrial life of the state is considered by all 35
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 40
intimately allied to this question.
[start page 192]
END QUOTE
.
The people of the various states make their own contracts amongst themselves, and if in course of their
contractual relations disagreements arise, and the state chooses to legislate in respect of the subject-
matter of them, it can do so.
END QUOTE 50
.

Page 100
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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? 5
END QUOTE
And
QUOTE
Mr. SYMON.-My honorable friend will hand that over to the Federal Parliament. I do not want to hand 10
over to the Federal Parliament too many of these difficulties. This, in my 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 extends beyond the 15
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
And 20
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 25
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.
END QUOTE 30
.
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: 35
END QUOTE

The fact that the State of Victoria purportedly handed to the Commonwealth industrial
legislative powers cannot make is constitutionally valid.
40
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 either legally
immutable or else capable of being changed only by some authority above and beyond the ordinary 45
legislative bodies, whether federal or state legislatures, existing under the constitution.

Page 101
A 1
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END QUOTE
.
QUOTE Mr. THYNNE:
The constitution of this federation will not be charged with the duty of resisting privileged classes, for 5
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 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 10
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 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 within the authority 15
conferred upon it by the constitution, but invalid and unconstitutional if they go beyond the limits of
such authority.
END QUOTE
.
QUOTE
Sir GEORGE GREY: I beg to propose that the following resolution stand as resolution No. 5:-
The inhabitants of each of the states of federated Australasia ought to be allowed to choose, and if they see
fit from time to time to vary, the form of state government under which they desire to live. Provision should
therefore be made in the federal constitution which will [start page 478] enable the people of each state 25
to adopt by the vote of the majority of voters, their own form of state constitution.
Question proposed.
Sir HENRY PARKES: I wish to raise a point of order upon this resolution, and I do it with the
utmost respect to the distinguished gentleman who has moved it. My point of order is that the
resolution goes beyond our instructions. We have been sent here for one object and one object only, and 30
that is, to prepare a scheme for the framing of a federal constitution. Anything outside of these
prescribed words cannot be dealt with under the commission in virtue of which we have come here.
END QUOTE
And
QUOTE
Dr. COCKBURN: I think we have nothing whatever to do with deciding the details of the state
constitutions. On the other hand, I think it appertains to the functions of this Convention to decide that the
power of framing a constitution shall be in the hands of the several states. At present the legislatures of the
various colonies can only be altered with the consent of the Imperial Government. Is it intended that that 40
shall remain? When we have a federated Australasia, in which we have state legislatures and a federal
legislature, is it intended that the state legislatures shall have the power of altering their constitutions at will or
not? From that point of view I think the proposition put forward by the hon. member, Sir George Grey, is
decidedly within the powers of the Convention, the power to lay down a general rule, without touching the
details of any individual constitution, that the various states should have the power of framing their own 45
constitutions according to the will of the majority of the people of those states.
END QUOTE
.
Again (RE Section 123);
QUOTE Sir GEORGE GREY:

Page 102
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Provision should therefore be made in the federal constitution which will [start page 478] enable the
people of each state to adopt by the vote of the majority of voters, their own form of state constitution.
END QUOTE

QUOTE
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 10
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 15
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
. 20
QUOTE
The Hon. A. DEAKIN: I say the great bulk of them are of that character, and am open to refutation if I am
wrong, I should say that the whole of the thirty-seven subjects, but, indisputably, the great bulk of them, are
subjects on which no question of state rights and state interests could arise except by the merest accident. It is, 25
as the right hon. gentleman admitted, a grave defect in our constitution if we permit these questions to be left
for all time to be determined in a purely states house, or by a state referendum, when those questions are not
state questions-when they ought to be decided, not on state lines, but on national lines, and by a national
referendum.
END QUOTE 30
.
QUOTE
Mr. BARTON: I do not think it is a good thing under any circumstances that a judge under a Federal
Constitution, at any rate, should have anything to hope for from Parliament or Government. 35
Mr. KINGSTON: Hear, hear.
Mr. BARTON: Where you have a sovereign Parliament, and the judge is merely the interpreter of
the laws as they arise, and not the guardian of a Constitution in the same sense as a federal judge is, the
same circumstances remain in part; but where you will have a tribunal constantly charged with the
maintenance of the Constitution against the inroads which may be attempted to be made upon it by 40
Parliament, then it is essential that no judge shall have any temptation to act upon an unexpected
weakness-for we do not know exactly what they are when appointed-which may result, whether
consciously or not, in biasing his decisions in favor of movements made by the Parliament which might
be dangerous to the Constitution itself.
END QUOTE 45
.
Hansard 12-3-1898 Constitution Convention Debates (Official Record of the Debates of the
National Australasian Convention)
QUOTE
Mr. GLYNN (South Australia).-I should like to ask a question with regard to clause 75, as to whether it is 50
intended to leave the right of appeal from a state or the Federal High Court itself direct to the Privy Council,
as it stands in the Bill, or whether the matter can be subsequently opened by the Parliament?

Page 103
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st
Mr. BARTON (New South Wales).-I am afraid that if I were to answer questions as to what is intended to
be done, I should expose the Drafting Committee to a flood of interrogations. I can only say that what we
intend to do is to carry out the decisions of the committee. Of course there are one or two cases in which
the [start page 2439] decisions which have been arrived at require a certain amount of interpretation in
the light of the debates, and in those cases we shall take what was said, as well as what was put in the 5
Bill, for the purpose of ascertaining what the movers of provisions desire. In the case of the proposal my
honorable friend carried, and which was put as a proviso to clause 74, it is evident that the words as they
appear are only in the nature of instructions to the committee, and they will have to be interpreted in
the light of statements made by my honorable friend in answer to inquiries by me. That is the course that will
be pursued. When an amendment, as carried, is intended only as a suggestion to the committee, it will be 10
interpreted in that way.
END QUOTE

QUOTE 15
Sir JOHN DOWNER.-We spend time enough in discussing things here, and when every one is agreed that this
clause is not to be adopted in the form in which it is printed, but is only to be a power of the Parliament, it is not
worth while to discuss the question of whether it is [start page 1665] absolutely necessary to put in the words. Where
there is a wide difference of opinion, it would be safer to do it. I agree with Mr. Barton that there is no power,
because sub-section (37) of clause 52 reads- 20
Any matters necessary for or incidental to the carrying into execution of the foregoing powers, or of any other
powers vested by this Constitution in the Parliament or Executive Government of the Commonwealth, or in any
department or officer thereof.
I venture to say that these are not necessary or incidental to the execution of any powers. The Commonwealth will
come into existence under this Constitution plus English law, one of whose principles is that the Queen can do 25
no wrong. That is the foundation on which the Constitution is established.
END QUOTE

The Commonwealth of Australia Constitution Act 1900 (UK) is a British Act and as such
considering the decision of Aggregate I ndustries UK Ltd., R (on the application of) v English 30
Nature and & Anor [2002] EWHC 908 (Admin) (24th April, 2002) and Judgments - Mark
(Respondent) v. Mark (Appellant), OPINIONS, OF THE LORDS OF APPEAL for 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 35
complimentary to British (constitution) law, as the Commonwealth of Australia Constitution
Act 1900 (UK) is.
Therefore, I view that European laws albeit not overriding constitutional provisions and
embedded legal principles are and can be applied if not conflicting with constitutional embedded
legal principles. 40

As indicated above no State constitutional amendment, such as for the State of Victoria was
approved by way of state referendum and hence I view any purported reference of powers from
the state of Victoria to the Commonwealth is and remains to be null and void (ULTRA VIRES)
including the purported reference of Industrial relations, the purported reference of legislative 45
powers of the Commonwealth Powers (Children Act) 1986 and other such purported references
of powers.
It should be clear that the states are not to interfere with the judicial independence of the state
judiciary and clearly where legislation is such as to remove also judicial powers from a State
Court, such as the state Supreme Court, than this is and remains unconstitutional if not approved 50
by way of State Referendum. Likewise so any purported amendment to a State Constitution.

Page 104
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In my view a commissioner who is to conduct a Royal Commission must be of a standing that
the general public can have confidence in this commissioner. In my view this commissioner has
proven as a sitting judge in the High Court of Australia to be bias and failing to adhere to the true
meaning and application of the constitution. In my view in the circumstances the commissioner 5
should hand back his commission. Albeit I still maintain the view that the commonwealth may
lack the powers to establish a Royal Commission into the building Industry as now created due to
the fact that goes beyond the powers of the Commonwealth to do it as is requested within the
terms of references.
10
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. 15
END QUOTE
.
.
QUOTE 20
Mr. HIGGINS.-No, because the Constitution is not passed by the Parliament.
END QUOTE
.
QUOTE 25
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
And
Australasian Convention) (Re Section 96 of the Constitution)
QUOTE
Mr. OCONNOR.-
In this case the Constitution will be above Parliament, and Parliament will have to conform to it.
END QUOTE 35

I will now quote the entire Chapter 022A Failure of the case albeit it was only a part of the
entire book and so will not in its entirely set out all relevant issues/matters.

INSPECTOR-RIKATI on IR WorkChoices legislation, A book about the validity of the High Courts 14-11- 40
(Book-Colour)
QUOTE Chapter 022A Failure of the case
Chapter 022A Failure of the case
NOTE; Keeping in mind when reading quotations that; COLOURING AND BOLDING/ 45
UNDERLINING OF TEXT THROUGHOUT THIS DOCUMENTS HAS BEEN DONE BY
THE AUTHOR TO HIGHLIGHT CERTAIN SECTIONS. (Colouring not available in B&W
version)

Page 105
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st
* Gary, do I need to ask if you found any deficiency in the judgments of the High Court of
Australia handed down on 14 November 2006 in regard of the Industrial Relations legislation of
WorkChoices purportedly being within subsection 51(xx) relating corporations powers?

**#** INSPECTOR-RIKATI, as you may have gathered from previous Chapters, there were, 5
so to say, black holes in the judgments that I detected and having read the CALLINAN J
judgment I must state from onset that I was pleasantly surprised by the manner His Honour did
set out matters, even so I view he omitted to address certain critical issues, His Honour, and I
state this term with respect, in my view did attempt to go through extra ordinary length to make
his judgment not just readable to lawyers but I view to construct it in a manner, as I have done in 10
my already published books, to make it readable for anyone and avoiding the Reader having to
get copies of numerous documents just to discover what His Honour was referring to. He too
quotes the precise statement or statements he relies upon and this was for me very pleasing in
reading.
His Honour also did set out counter arguments, as I tend to do, and by this gives his line of 15
argument to be a more balanced set out rather then, so to say, being one sided.

* So your score is?

**#** I consider the judgments of CALLINAN J, despite various omissions and some 20
misconceptions, to be worth 8 out of 10 score.

* That high?

**#** Well, you have to understand that his considerable set out of matters, far beyond what I 25
had expected but being relevant to his argument, must be taken into account against the
omissions and misconceptions. In my view, he is to be regarded as a true constitutionalist, who
deplores any abuse of judicial power and appears to me to support the notion that the People are
the once who must control by approval or by VETO what, if any, changes are made to the
Constitution. 30
I must admit that this was the first ever judgment I am aware of I read of CALLINAN J, albeit
his own judgment refers to previous comments he had made in regard of the Constitution
Convention Debates, I may add in a positive manner. In my view, the Framers of the
Constitution would be proud on how CALLINAN J did argue the case, as while he may have
omitted certain issues and may have misconceived certain issues, in the end it appears to me his 35
intentions were 100% in the right directions. This is the kind of judge I would like to see to be
the Chief Justice of the High Court of Australia. After all I could not doubt his credibility for one
moment to pursue what was the intentions of the Framers of the Constitution, and this is what we
need in judges who adjudicate at the High Court of Australia, and not what may appear to me
some political motivated judges who are somehow coming across to me not the least concerned 40
with what is constitutionally appropriate.

* Gee, that is a bit harsh, dont you think?

**#** Look, I am not going to hide my views where this disastrous judgment affected millions 45
of people. Can indirectly or indirectly wreck the financial future of many, if not hundreds of
thousands then certainly thousands, as they struggle to get out of financial obligations made
while they were in a secure financial area now vandalised by the High Court of Australia
decision.
50
* You mean vandalised by the Howard IR WorkChoices legislation?

Page 106
A 1
st

**#** No, because the High Court of Australia could have made clear that it would not allow
unconstitutional legislation to be permitted to remain in the books, as it finally did with the Cross
Vesting Act in the HCA27 of 1999 case Wakim, where I had already for years challenged the
validity of this legislation to be applied but Dawson J in 1994 and 1005 pursued the usage of this 5
now declared unconstitutional legislation.
In this document I will not quote all documents such as Is your Constitution Safe by Nick
Hobson or the document The Constitution is a PERPETUAL LEASE because of the volume
of pages, and so the Reader simply has to check the CD version of this book where those
documents and others are in their entirety included as Chapters. As such, this document is a 10
limited, indeed very limited document and is not intended and neither must be perceived to set
out all matters in their entirety. Some of the issues canvassed in this document are for example
(not set out in any order of importance);
The High Court of Australia can set aside the judgment of 14-11-2006 upon the basis of
the orders having been obtained by fraud. 15
The High Court of Australia erred in law as it failed to give sufficient consideration to all
matters relevant to the case.
The High Court of Australia erred in law as it gave to much consideration to matters
which ought not have been relied upon and/or it failed to appropriately consider those
matters in their correct environment, as such having them taken out of context, so to say. 20
The High Court of Australia exceeded its judicial powers by having relied upon
authorities (previous decision) which it knew or ought to have known were in blatant
violation of constitutional judicial limitations.
Thew High Court of
25
* Moment Gary, are you saying that those are legal grounds and not just concocted views
without any kind of credible support?

**#** For your information, I planned this already in 2004, as my correspondence may indicate
of which some has been reproduced bin this document. 30

* But wasnt the Amendment Act regarding WorkChoices not introduced until 2005, so how
could you then already have worked on a case a year or so before it eventuated?

**#** Because I never had any doubt that the Federal government would be heading this way to 35
undermine the federation by its power grab and seeking unification and as such ensured to make
records of what I was doing and publish it in previous books as to avoid anyone claiming I just
made it up now after the Federal Government won their case. Do not forget that I used the same
tactic when having this 5-year litigation against the Federal government lawyers and succeeded
in total including that all constitutional issues I had raised were left UNCHALLENGED. 40
While the High Court of Australia in Sue v Hill (Not sitting as a court of law but as Court of
Disputed Returns) claimed that progressively over time the Commonwealth of Australia
became an independent nation the Framers of the Constitution rather made the following
comment.
Dr. COCKBURN (South Australia).-Quite apart from the question of trade between state and state, is it not
necessary that the Commonwealth itself should have some power for the restriction and the regulation of
trade? The words "absolutely free" are infinite in their application, and they seem to me to take away from the
Commonwealth the power to restrict and regulate trade within the confines of the Commonwealth. 50

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What this makes clear is that even the term FREE (section 92 of the Constitution, where in fact
there are taxes, in addition of GST being levied.
What must be clear is that the word FREE must be interpreted as to the intentions of the
Framers of the Constitution as stated in the Hansard records of the Constitution Convention
Debates and not be used in modern times of the meaning of the word FREE. 5
Therefore the meaning of Section 92 having to be construed as to the intentions of the Framers of
the Constitution then likewise the meaning of subsection 51(xx) of the Constitution likewise
shall be construed in the same manner. Meanings to certain constitutional provisions are often
discovered in debates about other matters, such as debates regarding subsection 51(i) which also
then relate to Section 92, albeit, care must be taken that at the time of the framing of the 10
Constitution they referred to clauses as it was a Bill and it does not become a section until it
receives Royal Assent. Also, a clause by various amendments to the Constitution convention bill
was going through different numbering stages and generally the now Section 51 was referred to
as Clause 52 and the current Section 52 then referred to as Clause 53.
15
Mr. DEAKIN.-

In this Constitution, although much is written much remains unwritten, 20

This underlines that the framers of the Constitution pursued to keep the written text to an
absolute minimum to avoid lawyers to play havoc with the Constitution and judges had to
interpret the constitutional meanings by researching the Hansard records of the Constitution
Convention Debates to discover the true intents of the Framers of the Constitution. 25
As shown below the danger to quote what a judge may have stated AFTER federation is obvious
where the very judge refused then to allow the usage of the Hansard records of the Constitution
Convention Debates as to show what the judge actually had stated when framing the
Constitution. In my view Griffith and Higgins are examples that what they stated after federation
may not have been as what they stated while framing the Constitution. As such, I view that 30
where there is a clash of expressions or a difference then what the person stated at the time of
framing the Constitution should be regarded as having more validity then being bias as a judge
after federation.

Where laws exist at the time of the adoption of this Constitution they will be preserved; but do not let
us give power to the states to make new laws which will create new difficulties and complications.
And
Mr. MCMILLAN.- 40
I do not want to insert in this Constitution a provision which by implication will show a trend of thought of a
certain character, to which I need not further refer. I do not want it to be presumed for one moment that
we desire to give to the Federal Parliament the right to interfere in trade disputes and in the ordinary
business and commerce of the country. The less the Government has to do with these things the better, and
the more clearly it is understood that the Government is not to interfere excepting for the preservation of law 45
and order the sooner these disputes will be likely to end.
This statement underlines that the wording in the ordinary business and commerce of the
country. must be deemed to include corporations as unlikely would the meaning of in the
ordinary business and commerce of the country. have been intended to exclude corporations.
50

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It ought to be considered also that industrial action is not particularly intended to refer to a
single employee working for an employer but that more then one employee works for that
employer. Hence, it would be more likely to relate to a business that is incorporated then being a
business of one employee only existing.
5

Sir JOHN DOWNER.-I cannot foresee. I cannot pretend to have the gift of prescience which would enable
me to know how ultimately a coach and four may be driven through this Constitution. But I say let those who 10
want limitations propose their insertion in the Bill. I would prefer to leave the main enactment in this clause
exactly as it stands. It may be that the words of Sir Samuel Griffith represent all he can think of. Perhaps they
may represent all that can be wanted at any time; but it is just possible that something may be omitted from
them something which might derogate from this freedom of trade which we intend to have throughout the
Commonwealth, Then, I ask honorable members to consider this: Although the clause says that trade and 15
intercourse throughout the Commonwealth shall be absolutely free, you have to look through this
Constitution at the other provisions, which show clearly what is the intention. This is a broad central
declaration; the rest you gather from a perusal of other provisions of the Bill.
Again;
Although the clause says that trade and intercourse throughout the Commonwealth shall be absolutely 20
free, you have to look through this Constitution at the other provisions, which show clearly what is the
intention. This is a broad central declaration; the rest you gather from a perusal of other provisions of
the Bill.

As such even trade and commerce remains conditional upon other parts of the constitution. 25
As a self-educated grand master constitutionalist, I have therefore a good understanding about
certain constitutional matters and must admit that you displayed a good sense of understanding
what federation was about. The quotation above, at least in my view, would have enhanced your
argument, and indeed many other simular statements can be found in the Hansard records of the
Constitution Convention Debates. 30
The joint judgment referred to;
The question was whether it also was a law with respect to corporations of the kind described in s 51(xx).
Griffith CJ, who was in the majority, said[12]:
"It is common ground that [the relevant sections of the Australian Industries Preservation Act], as framed,
extend to matters relating to domestic trade within a State, and the question is whether the power to make 35
laws with respect to 'foreign corporations, and trading or financial corporations formed within the limits of
the Commonwealth' extends to the governance and control of such corporations when lawfully engaged in
domestic trade within the State. If it does, no limit can be assigned to the exercise of the power. The
Commonwealth Parliament can make any laws it thinks fit with regard to the operation of the corporation, for
example, may prescribe what officers and servants it shall employ, what shall be the hours and conditions of 40
labour, what remuneration shall be paid to them, and may thus, in the case of such corporations, exercise
complete control of the domestic trade carried on by them."

However it omitted to use this clarification;
Sir SAMUEL GRIFFITH: I confess I feel very great doubt whether the provision should or should
not be put in here. I do not think the hon. member, Mr. Kingston, has removed the difficulty that I felt

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as to its being an interference with property and civil rights. Does the hon. member mean that a court
of conciliation might direct that the wages of workmen should be raised?
Mr. KINGSTON: That is a question of detail!
Sir SAMUEL GRIFFITH: It is a question of principle. Does the hon. member mean matters of
principle like that, because that might entirely depreciate the value of property in a state, or drive an 5
industry out of a state? From that point of view, my vote will be determined in the matter. I think,
much as I desire to get this power for the federal parliament, that we ought to hold fast by the principle
that we are not going to interfere with the rights of property in the states.

Again, a shame that none of the judges took any consideration as to the issue that employment of 10
a worker entered into was on the basis of a State contract within the civil rights of a person
within State laws where as corporations powers was dealing with registration of corporations
legislative powers provided to the Commonwealth of Australia and nothing to do with civil
rights contracts. Indeed, as the joint reasons pointed out;
Such little debate about the corporations power as there was at the 1891 Convention focused upon whether that 15
power should be extended, like the banking power, to the registration or incorporation of companies. Sir Samuel
Griffith's response[141] was:
"What is important ... is that there should be a uniform law for the recognition of corporations.
Some states might require an elaborate form, the payment of heavy fees, and certain guarantees as to
the stability of members, while another state might not think it worth its while to take so much trouble, 20
having regard to its different circumstances. I think the states may be trusted to stipulate how they will
incorporate companies, although we ought to have some general law in regard to their
recognition."
As this reveals, the concern then being addressed was very narrow.
Again; 25
is that there should be a uniform law for the recognition of corporations.

With my extensive research in the Constitution Convention Debates this was all along my
perception, that it was only dealing with registration (for the recognition of corporations) upon
a uniform basis as to avoid different State conditions but nothing to do with attempting to 30
interfere with the civil rights of a person to enter in a work contract with an employer. Also, the
drafting committee would often deal with matters decided in smaller committees and as such not
subject to major debates on record.

HANSARD 27-1-1898 Constitution Convention Debates (Official Record of the Debates of the National 35
Mr. SYMON: I think that every dispute is local to the State in which it originates.
Mr. SYMON: No doubt. There is another point I wish the hon. member to consider. You are not going to 40
interfere with the laws of the States dealing with contracts. If the Federal Parliament deals with disputes it
will be hampered by the varying laws relating to master and servant which may exist in the different colonies.
If an industrial dispute in several colonies were treated as one it could not be dealt with as an ordinary
dispute, but the laws of each separate State would have to be taken into consideration. Now that would be, I
think-so it strikes my mind at present-a difficulty hard to be overcome. At any rate, what I am dealing with is 45
rather the general proposition that is put in this amendment, not the language of it, but the general proposition,
and if you are to give the Federal Parliament power to deal, as my honorable friend puts it, with industrial

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disputes -I will leave out the subsequent verbiage-I for one cannot see where the limit of its operation will
come in. You give it a weapon which might be used according to the dominant majority in the Federal
Parliament for the moment in a way we would not like. You are intensifying the possibilities of bitterness-that
is to say, if they avail themselves of this power-without seeing the benefit that is likely to arise. I desire to
emphasise the [start page 790] observation made by Mr. Deakin. It would be impossible to say at what time 5
the overflow into the adjoining State begins and ends. If the Federal Parliament is to decide-
And
Sir EDWARD BRADDON (Tasmania).-
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 10
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 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. I claim Mr. Deakin's emphatic indorsement of that principle, and I claim his vote, 15
because his vote if he goes with me will affirm the principle. It surely must be better for the employees that
their disputes should be settled by courts which know all the circumstances, which understand the condition
of things best, than that they should be settled by possibly a distant tribunal which is ignorant of the
environment and particular conditions affecting any industry in any one of the states. We have heard to-day
something about the fixing of a rate of wage by the federal authority. That would be an absolute 20
impossibility in the different states.
And
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. 25
And

Section 109 of the Constitution does provide that where State law is inconsistent with 30
Commonwealth law then Commonwealth law shall provide, however it does not State that
Colonial laws likewise are subjected to the same. Therefore State laws that are enacted AFTER
federation are subject to subsection 109 but Colonial laws enacted before Federation remain to
be valid in law but cannot be amended once the Commonwealth has commenced to legislate
upon this matter. There are however serious matters to be considered. Where the High Court of 35
Australia made time and again certain decisions, which based upon those decisions State
legislated and now the High Court of Australia suddenly in their, so to say, CRYSTAL BALL
saw powers it never saw before, against the body of language used by the Framers of the
Constitution to indicate, such as in regard of bounties, that it could continue to do so in regard
not just of individuals but also regarding corporations where it remained internal matters then 40
one would hold that either the Framers of the Constitution themselves didnt known what they
were talking about or it may be held that the Judges of the High Court of Australia dont know
what they are talking about with their sudden, so to say, CRYSTAL BALL revelations, then
how does this eventuate with the provisions of the Constitution?
The first thing is to consider is, that as set out below Section 109 does not invalidate Colonial 45
laws. Therefore within section 107 they are and remain preserved. Section 109 relates to State
legislation, which is after federation, whereas Section 107 relates to both Colonial and state
legislation. We therefore have to consider that if a State upon the decisions of the High Court of
Australia legislated after federation as to amend or repeal such colonial laws to have it party or

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wholly substituted with State legislation where the state genuinely believed that upon the High
Court of Australia decisions and/or so the VETO power used by the electors themselves within
section 128 of the Constitution then where the High Court of Australia now reverse its past
decisions the States nevertheless are now robbed of their colonial laws because they were
amended since federation or that the High Court of Australia will regard it that as the 5
amendment/repeals were subsequently to their , so to say, ill conceived past decisions then the
colonial legislation as existing at the time of federation for so far as repealed/ amended must be
regarded not to have been so. To do otherwise would rob the States, who may have legislated
upon the decisions/finding of the High Court of Australia of their constitutional powers/rights
because of the, so to say, ill conceived decisions of the past by the High Court of Australia. 10
Surely, the Framers of the Constitution never intended to do so? Indeed, not to allow the re-
instatement of those colonial laws would result that no one could avail himself to the credibility
of the High Court of Australia as to its competence to make appropriate judicial decisions
without perhaps contemporary political motives as to misguide/misdirect States as to their
constitutional powers to get them to act and then later use this action to hold their colonial 15
legislation (because of their State legislative amendments) no longer is valid because of Section
109 where as had the States not gone along to accept the High Court of Australias decision it
may never have amended/repealed its colonial laws. Indeed, one then can ask, for example,
where the State of Victoria is a listed COMPANY on the New York Stock exchange, if then the
State, having purportedly amended its own constitution with the Victorian Constitution Act 1975 20
no longer then can rely upon its own 1975 constitution!
Also, if this therefore can unfettered give the Commonwealth of Australia to basically decide
every aspect of corporation life of the State Governments and so can nullify the existence of the
State government. After all, it cannot be argued that somehow corporations powers found, so to
say, in the CRYSTAL BALL does apply to some but not all. Indeed, the Commonwealth 25
legislative powers is bound to be for the whole of the commonwealth and cannot therefore
exclude parts of States, being it State government or otherwise.
Also, where a State has (if it is validly done so that is) referred legislative power of a State then
as the Framers of the Constitution made clear the commonwealth of Australia is to make a
special levy against that State for the cost of this legislative powers to be acted upon. After all, 30
why should taxpayers be burdened with the financial cost of running the matters within the
referred legislative powers of another State while having to pay for their own as well. The
Framers of the Constitution made it clear that the Commonwealth of Australia would then have
to provide for a special levy to have the State that referred legislative powers regarding a certain
matter pay for this administration. 35

There is another issue that should not be overlooked.
We now have ample of companies that are now changing how they conduct their business affairs
considering the High Court of Australia, so to say, CRYSTAL BALL found constitutional
powers in regard of subsection 51(xx) as it did about the Australia Act 1986. Now, many 40
companies since had altered their arrangements with workers, even sacked them, and if now by
hindsight the High Court of Australia were to re-consider its position and found that because the,
so to say, CRYSTAL BALL was clouded and their tea leaves in their cups were not showing
the kind of reading that at the time they had perceived to do in regard of what constitutional
powers were about, then where the High Court of Australia then reverses its 14 November 2006 45
decision regarding the Amendment Act (WorkChoices) and find that subsection 51(xx) is
restricted to registration of companies and their conduct as a corporation but not referring to
the industrial issues governing how it employs workers there could be a flood of legal actions by
workers who then will argue that they were unconstitutionally and illegally robbed of their
income. Many companies who may have acted upon the validity of the High Court of Australias 50

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decision of 14 November 2006 then could be send broke as the laws they thought no longer
applied, and hance reduced wages as permitted by the new purported legislation, turn out to be
still legally applicable.
Could it be held that therefore during the time the High Court of Australia had its ill-conceived
judgment standing that constitutionally the State legislation remained on foot and so remains 5
legally enforceable. If not, could it mean that the High Court of Australia upon ill-conceived
decisions can temporary suspend the application of constitutional provisions and later re-instate
it? To allow for this would make a mockery of the Constitution as no one could avail himself to
what is constitutionally applicable, as it would depend upon the political appointment of judges
how they then decide from time to time their cases. 10

The legal implications are enormous with ill-conceived High Court of Australia decisions and for
this every Australian (naturalised or not) who have employment in the Commonwealth of
Australia is entitled to hold that the High Court of Australia did at the very least a very shoddy
job in handing down its 14 November 2006 decision regarding the purported WorkChoices 15
legislation without having first, as I did, extensively researched all related matters governing the
matters before the Court.
A simple manner to research a particular issue is that a person who has access to the electronic
versions of the Hansard records of the Constitution Convention Debates has it on a computer and
does the following; 20

The computer operator go to the program search/find and type in the word required to
be found in the Hansard records of the Constitution Convention Debates, being it
preserved, company, retrospective, British subject, citizenship, etc, etc.
Now, technology happens to be that then the computer will in a few minutes list all days on 25
which the Framers of the Constitution during the Constitution convention Debates used the
particular word one had in the search.
Then one open up a particular page and do the same search/find again and there it
comes up time and again.
30
In case judges of the High Court of Australia have a problem to access the internet to get to the
Hansard records of the Constitution Convention Debates, it is in fact listed in Chapter 33 of my
books on CD/DVD so the Readers can check out the entire debates, and so if I did not take out of
context the quotation I relied upon.
As I did provide on the day of publication the High Court of Australia with 4 copies and 35
subsequently about 4 weeks later provided another 4 copies then clearly the Court had every
opportunity to check out the Hansard records of the Constitution Convention Debates.
Considering that Mr Peter Hanks QC for the Commonwealth of Australia stated;

The researches of counsel have been unable to find provisions using 40
similar language (not less that or at least a number of days) where
the language is as clear and specific as found in ss156(1) and 157.
Yet despite this thousands upon thousands of usage around the world is found by a simple search
on the internet, as I then already established, it appeared to me that the researches employed by 45
lawyers may not master technology and so perhaps neither the internet and as such providing it in
Chapter 33 of my books I avoid researches that may be employed by the Court, so to say, having
to pull their hair out because of their inability to use the internet, and have it nicely dished up for
them. Whatever might or might not be applicable, still judges are appointed specifically to deal
with constitutional issues and I view there is no excuse therefore for any judge not to have 50
bothered (through his researches or otherwise) to check out how the Framers of the Constitution

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used the word company, preservation, retrospective, British subject, factory law,
citizen, citizenship, and for that also empire, kingdom, republic, independence,
subject of the British crown, constitution, etc, etc.

The Hon. J.H. CARRUTHERS: Look at sub-clause 25, which says:
The service and execution throughout the commonwealth of the civil and criminal process, and
judgments of the courts of the states.
The Hon. Sir J.W. DOWNER: But it must be in respect of a matter over which the court has jurisdiction. 10
Mr. SYMON: Suppose you change the domicile!
The Hon. Sir J.W. DOWNER: That will not operate to give jurisdiction. I think that when we have given
the most sacred of all relations-the, relation of marriage-over to the commonwealth, and very properly, it
follows, as a matter of course, that we must do this. Parental rights-that is all we propose to give to the
commonwealth. The commonwealth parliament can make a definition and pass a uniform law. 15
Mr. SYMON: That is incident to the marriage law!
The Hon. Sir J.W. DOWNER: It comes from the marriage law, and ought to flow as a corollary. It is
a corollary as far as marriage is concerned.
[start page 1085]
The Hon. R.E. O'CONNOR: It would not necessarily follow the law of husband and wife! 20
The Hon. Sir J.W. DOWNER: We are only talking about parental rights; that is the right of the
parent over the child!
The Hon. J.H. CARRUTHERS: If the hon. and learned member is willing to hand over the rights,
why not the obligations?
The Hon. Sir J.W. DOWNER: If the hon. member would like them added I have no objection; but if the 25
hon. gentleman wants to exclude them, I cannot see that any difficulty need arise. So far as I know, the laws
of all the colonies are exactly the same in respect to the matters mentioned here, and there is very little
probability of their being any different, so far as parental rights and the custody and guardianship of infants
are concerned. We want to prevent the possibility of any difference, that is all, and to give the federal
parliament power to legislate on the subject if they please. I can see difficulties that might arise in the 30
enforcement of state laws through the child or infant being taken away from the custody of its parent
or guardian, and being out of the jurisdiction of the court of the state in which the parent or guardian
resides, and I think it is necessary to have one uniform law on this matter as well as in regard to
marriage and divorce.
The Hon. J.H. GORDON (South Australia)[3.59]: I think we are quarrelling about terms and not about 35
substance. I believe that the hon. member, Mr. Carruthers, agrees with almost everyone of us that as
regards parental rights and the custody and, guardianship of children so far as divorce is concerned,
power should be given to the commonwealth; but this clause goes much further and includes the whole
region of, parental rights and the custody and guardianship of children.
The Hon. E. BARTON: Put in the words "and in relation thereto" before "parental rights "! 40
The Hon. J.H. GORDON: That will cover the whole ground. All our acts relating to the custody and
guardianship of children have relation to parental rights.

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Mr. SYMON: Suppose a child is deserted?
The Hon. J.H. GORDON: That suspends the parental custody; but the parental liability remains. I
think that the amendment suggested by the hon. and learned member, Mr. Barton, covers the whole
ground.
The Hon. E. BARTON: I move: 5
That the figures "24" be omitted with a view to the insertion of the words "and in relation thereto."
This will confine the operation of the subclause to the rights and obligations arising out of divorce
suits. The other matters to which attention has been directed will be considered by the Drafting Committee.

Time and again I notice that the High Court of Australia refers to International law and also 10
British decisions but there is a gross defect in them doing so. As the Framers of the Constitution
made clear, time and again, they did not desire to use any particular Constitution but desired to
design their own and pick what they considered the best of all Constitution and mix it with a
blend of Australian flavour. This is in particularly highlighted in the usage of Subsection 51(xxii)
referring to parental rights no other constitution had used. Likewise its intentions with 15
subsection 51(v) and not otherwise was to include whatever would eventuate in future with
modern technology in that field, and they made clear they didnt want to follow the USA system
of having telecommunication in private hands! Hence the sale of Telstra is and remains
unconstitutional and likewise the operations of private telecommunication companies in the
Commonwealth of Australia. The High Court of Australia cannot have it both ways, to disregard 20
constitutional provisions where it is against the conduct of the Federal Government but enforce it
where it is in favour of the Federal Government.

I might not be a lawyer but no one could argue that throughout my books that are published I
have not shown a display of law enforcement being it what is constitutionally appropriate. And, 25
yet I find that the many of the decisions of the High Court of Australia are, so to say, stinking
like rotten eggs rather then having the flavour of JUSTICE. Whatever, so to say, the Court is
cooking up I think they need to have an health inspector checking their facilities as it is heavily
contaminated whatever seems to come out of their kitchen that spoils the appetite of those who
are to consume it, except for those who lack the taste for JUSTICE. 30

One can go to a kitchen and have a meal prepared in the utmost crisp environment and have the
meal decorated in the most attractive manner yet when it is served at the table the person
presenting it could stink a mile against the wind, so to say, and no matter what effort was done to
make up the meal it all might in the end been a waste of time and effort. Therefore, it is not 35
necessary that researched of the Court might not have done their utmost pest to assist a relevant
judge, but it might be that the bias of a judge may have resulted that presenting the judgment
excluded many thing that the researches may have prepared but were never in the end included.
As such the judge may have contaminated what was prepared to be presented. Sure, ultimately
this is the right of a judge to decide what is in and what is out but surely then it would be absurd 40
for a person like Mr. Peter Hanks QC to blame his researches for something he himself could
have established within a few minutes to be correct or not. all he had to do was to type in a
search shall be not less than and he would have found thousands upon thousands of
references.
If I as an unrepresented party can manage to get legal matters sorted out in that regard then surely 45
it is an absurdity to accept that a Queens Counsellor can excuse himself by blaming the
researches, yet, when this came before the High Court of Australia it was argued by Mr Peter
Hanks QC that it was not relevant.

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To me it is very relevant if a lawyer deceives the Court as he did in many other ways.
For example, checking the transcript of the hearing, it is noted that Mr Peter Hanks QC in his
argument in point 22 and 22.1 of the OUTLINE stated the following;
QUOTE
22 In Foster v J ododex Australia Pty Ltd (1972) 127 CLR 421 at 445, Gibbs J referred to the general rule 5
that not less than so many days refers to clear days unless the context or the statutory intention
reveals a contrary intention.
END QUOTE
His quotation is again false and misleading!
10
Mr Peter Hanks QC quoted of the judgment the following;
QUOTE
unless the context or the statutory intention reveals a contrary intention
END QUOTE
This ought to be; 15
QUOTE
unless the context or the subject matter reveals a contrary intention
END QUOTE

Clearly, that is a gross deception. In legal terms there can be a significant difference in a case for 20
the Court to deal with a statutory intention versus subject matter.

Mr Peter Hanks QC stated to the Court (7 November 2001);

The researches of counsel have been unable to find provisions using simular language (not less that or at 25
least a number of days) where the language is as clear and specific as found in ss156(1) and 157.

Thousands upon thousands of Internet references can be found upon a search shall not be less
than or shall not be less that. As such this statement by Mr. Peter Hanks QC for the
Australian Electoral Commission was a fraudulent statement. Likewise other statements were 30
found by me to be deceptive and/or misleading.

We also have the fact that Counsel Mr Peter Hanks QC argued the authority of the

ASSOCI ATED DOMI NI ONS ASSURANCE SOCI ETY PTY. LTD. v. BALMFORD (1950) 81 CLR 161 35

What counsel did however was to make a false and misleading presentation of what the case
really was on about.
As the authority stated:
40
The notice actually served did not "specify" such a period: it "specified" a period which
was too short by one day, and the Acts Interpretation Act does not affect this position.

Mr Peter Hank QC didnt argue that the authority wasnt relevant, to the contrary he argued its
relevance only by misrepresenting how it applied and what the authority really was on about. As 45
such, it had nothing to do with within as Mr Peter Hanks QC argued as clearly the usage
within was in a different context and not at all as Mr Peter Hanks QC sought to imply and
did imply. It ought to be considered a serious matter that a barrister employs these kind of tactics,
indeed deceptive tactics, but it seems the Australian Electoral Commissioner does not seem to
worry about the means as long as it achieves his end results. 50

Because Aboriginal affairs gives me an opportunity to set out better matters regarding the usage
of the various legislative powers of the Commonwealth of Australia I will use this to some

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extend and then bring it back to industrial relations, and as such the Reader must remain spell
bound, so to say, to follow my reasoning.
Hansard, 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National
Sir SAMUEL GRIFFITH: 5
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.
10
This related to Subsection 51(xxvi) as to race legislation.
The amendment in the con-job referendum in 1967 to delete the reference to Aboriginals in
subsection 51(xxvi) with its subsequent legislation had the effect;

Hansard, 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National 15
Mr. BARTON.-But if he is under any disability under any regulation of the [start page 1787]
Commonwealth he would cease to be a citizen, however slight that disability might be. I doubt whether
the honorable member intends that. There is power by law to regulate the people of any race requiring
special laws. There may be some purely regulative law passed, not imposing any special restriction on any 20
person of that kind who may be a subject of the Queen. That regulation, if it were of the mildest
character, under this definition, would deprive him of his rights.

The Racial Discrimination Act 1975 by this has the effect that all persons in the Commonwealth
of Australia by this lost their citizenship/franchise! 25
See also Chapter 021H Aboriginal constitutional issue.
What we have therefore is that, at least to me, it appears electors are conned in voting in a
referendum unaware to the true constitutional construction of the application of certain
constitutional provisions, and if anything the 14 November 2006 judgement regarding the
WorkChoices legislation underlines that even the judges themselves over more then one hundred 30
years did not appear to understand/comprehend how subsection 51(xx) really applied. Yet,
despite this admission the judges nevertheless do not even bother to check out what is recorded
in the Hansard records of the Constitution Convention Debates as to the usage of the terms so
important to the case being it company factory law State sovereign rights etc. At the very
least one would have expected that the judges concerned claiming that it was done for so long 35
wrong should be extra careful for themselves not to compound problems by ignoring to first
elicit from the Hansard records of the Constitution Convention Debates what really was intended
with the term corporations and how it was considered.

Numerous references were made by the Framers of the Constitution that the internal workings of 40
a State was to remain with the State and as such it is evidently clear that the corporations powers
within subsection 51(xx) was never to be more then the general registration and conduct of
corporations as a corporation in management style and not at all involve the nots and bolts, so to
say, of how shop floor workers earn their crust. Indeed, the fact that the Framers of the
Constitution stated that the States retained their factory laws and that disputes were to be 45
considered upon State contracts, etc., itself underlines that subsection 51(xx) was limited to the
organization of companies and had nothing to do with how workers were employed. Indeed, the
fact that the Commonwealth of Australia had no constitutional powers to deal with religious
aspects in itself underlines that State laws were the only once to prevail. If in time Australia turn
into some other religion as its general usage and Christian public holidays become unsuitable 50
then it would be beyond the powers of the Federal government to interfere with religious public
holidays where as the States still can legislate where it comes to religion but on the other hand by
the Commonwealth of Australia having invoked legislative powers cannot do so because Section

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51 does not allow the States to legislate upon matters once the Commonwealth of Australia has
commenced to do so. It means, that neither the States or the Commonwealth of Australia can
legislate any further in regard of religious holidays, an total absurdity. We then have a vacuum
of legislative powers!
Neither can it be argued that the Commonwealth of Australia somehow can legislate as to 5
religion under its subsection 51(xx) powers as to allow this vandalise the intentions of the
Framers of the Constitution and the constitutional concept embodied in this new Magna Carta.
What will however eventuate is, that where it comes to workers who do not work for a
corporation they can benefit of State legislative provisions where as workers performing the
same job but their employer happens to become a corporation then they have a different level of 10
standards and we will have for this two classes of employment. Any employer could upon his
wimps destroy the security of a worker by switching to another system and this would workers in
a precious position that their contracts, such as purchasing a residence, is jeopardized.
Such industrial vandalism caused by the High Court of Australia decision cannot be allowed to
stand. It is no more then providing for corporate greed and not at all considering the sovereign 15
rights of the States to manage their own internal affairs as they desire. Irony is that in this case I
cannot specifically blame the current Federal Government for its ill conceived WorkChoices
legislation as I view they are entitled to legislate upon what they deem constitutionally
permissible being it that I hold each and every member of parliament to be held accountable as a
representative of the constituency for failing to appropriately care for their constitutional rights. 20
As I have indicated in the past published books, the constitutional set up in the Commonwealth
of Australia is totally different then that which applies in the United Kingdom. A clear example
is that the so called Henry the VIII powers to amend legislation by the government of the
Day does not exist in the Commonwealth of Australia.
Also, while a Minister of State in the UK has unlimited powers within his portfolio, to the 25
contrary in the Commonwealth of Australia a Minister is bound within what is for the peace,
order, and good government and so are the powers of the Federal Parliament limited to this. The
British parliament did not have a constitution that dictated the usage of Ministerial powers and
indeed parliamentarian powers where as the Commonwealth of Australia can only operate within
the peace, order, and good government and also that it must follow the dictated regime that the 30
parliament legislate and the Federal government cannot enforce any self dreamed up
amendments as like the Henry the VIII powers as it is prohibited in the constitutional
structure of the Commonwealth of Australia. Hence the government exclusion of islands of
Migration territory was unconstitutional regardless if the Federal parliament later legislated for
this to be part of legislation and the Federal Parliament in fact unconstitutionally provided for the 35
exclusion of any parts of the Commonwealth of Australia for migration purposes is and remain
unconstitutional and as such also any action taken against refugees on the basis of the purported
exclusion.
It is the High Court of Australia, as I view it, in its corrupted decision that is really to be blamed.
Time and again it has allowed the Commonwealth of Australia to infringe upon constitutional 40
prohibitions and limits disregarding totally what the Framers of the Constitution intended.
The Pacific Solution, the ADMINISTRATIVE DETENTION and numerous other decisions to
me reek, if not stink, to political manoeuvring by the Court to undermine the proper application
of constitutional powers and limitations. Now it appears we going to have a CARIBBEAN
decision in human trading between the Commonwealth of Australia and the USA. In my view so 45
that if any further refugees arrive from Papua New Guinea then they be transported to the USA
as not to embarrass the Indonesians. Just that I view this is not a power for the Commonwealth of
Australia to deal in human bodies trading, as while it may have constitutional powers to deal
with immigration, migration and aliens nothing can justify a human trade. It is akin to the
slave trade only now using a different terminology. I doubt the High Court of Australia will 50

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bother to address this issue, even if an application is made, as I only have to look about my
section 75(v) matters how it refused those time and again, disregarding obviously the
constitutional issues and by this allowing the slaughter of human beings to continue.

Mr. BARTON.-
Now, the preservation of every inch of the shores of Australia from immigration of the kind indicated,
except to a certain limited extent, is one of the most desirable powers to place in the Constitution
10
As the Constitution makes clear the Commonwealth of Australia can only legislate as to the
whole of the Commonwealth and not exclude any part of it, such as is done under the
Migration Zone as to purportedly exercise parts of Australia from the migration zone.
Regretfully, we also have found that the High Court of Australia justified the government of the
day to invoke the so called Henry the VIII powers to make amendments to legislation and 15
then use it and have it enforced without first having been passed through both Houses of
Parliament and given Royal Assent. It would be sheer impossible to quote in this document all
relevant quotations from the Hansard records of the Constitution Convention Debates as this
would cause this document to run in several thousands of pages, safe to say that Chapter 33 of
the book on CD contains all records and the Reader can for himself /herself check it out. 20
Whatever the British Parliament may do and whatever the Privy Council may have ruled in
certain cases cannot be adapted at all times to the Commonwealth of Australia as there is a total
different constitutional set up. The Commonwealth of Australia is not the overall governing body
over the States, because many legislative powers of the States are not existing in the
Commonwealth of Australia. 25

There is no such thing as the Australian troops to enter a State to break a strike as to
do so would be unconstitutional.
Again
There is no such thing as the Australian troops to enter a State to break a strike as to 30
do so would be unconstitutional.

There is no such thing as a soldier standing behind a citizen and going to shoot a bullet through
an electors head merely for refusing to comply with Section 245 of the Commonwealth electoral
Act 1918 refusing to vote, as I did, as it would be beyond constitutional powers to do so, and if 35
any evidence is needed why such obnoxious conduct could never be tolerated is in the fact that
on 19 July 2006 I succeeded in the County Court of Victoria to prove that voting is not
constitutionally permitted to be compulsory. As the Framers of the Constitution made clear, any
alleged breach of Commonwealth law was to be dealt with by the Commonwealth by having the
alleged offender formally charged (accused) and placed before the relevant State Court and the 40
person be given a judicial decision as to the persons innocence or guilt.

I am not the least interested what Quick & Garran stated in regard of certain issues, as their
own motivations may have distorted what was in fact really applicable and I rather rely upon the
Hansard records of the Constitution Convention Debates as to the true intentions of the Framers 45
of the Constitution.
Domestic violence was not then meaning a dispute between husband and wife but was then
referring to a civil unrest involving violence where then the Governor of the State could issue
a proclamation for Australian troops to restore order. As such, it had to be qualified within the
meaning of the term domestic violence as it then was referred to. A peaceful protest in 50
industrial matters is not and cannot be regarded constituting domestic violence. It might be
injurious to others, in preventing others to get to work or otherwise being obstructed to perform

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their normal daily routines but it is not to be considered domestic violence in the meaning of
the Framers of the Constitution.
It is not that somehow soldiers are marching into the homes to point guns upon innocent
children, because their mummy and daddy have an altercation. Sure, we have the Australian
Federal Police already bashing down peoples front doors and pointing weapons upon children 5
and others in raids within States, and so unconstitutionally, but this does not make it lawful.
It is, as I view it, because we have an utter corrupt High Court of Australia that refuses to
consider all matters that are relevant to interpretation of the Constitution that so much is being
done unconstitutionally.
10
I member has said-that it is not desired to raise up a great standing army for our defence from
imaginary enemies.

Well, we have the purported WAR AGAINST TERROR where we have imaginary enemies
and where innocent people are rounded up and denied their constitutional rights because where 15
the High Court of Australia (obviously then not using the Hansard records of the Constitution
Convention Debates) in 1943 purported that the Commonwealth can suspend civil rights in
time of war then all that is needed is to purport there is some kind of war against imaginary
enemies.
"Naturally, the common people don't want war, but after all, it is the leaders of a country who 20
determine the policy, and it is always a simple matter to drag people along whether it is a democracy,
or a facist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can
always be brought to the bidding of the leaders. This is easy. All you have to do is tell them they're
being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It
works the same in every country." 25
Hermann Goering, Hitlers' Reich-Marshall, at the Nuremberg trials after WW2.

As the Framers of the Constitution made clear regarding the States;

Our own police are quite sufficient for the preservation of order within. 30

Any notion of ASIO and/or Federal Police (under whatever title) roaming around with staff of
the immigration Department to arrest people, like Vivian Alvarez Solon and many others is an
absolute lunacy. In every case the Australian Federal police removes a person from State coil
without having first obtained a order of a State Court (such as the Bakhtiyari children) then that 35
is no less kidnapping as it would if any other stranger would have done so.

With all due respect to His Honour CALLINAN J, I view about defence power, that subsection
51(v) does no more but give the Commonwealth of Australia legislative powers as to regulate
armed forces, not to run an army. Section 69 transferred naval and military forces from the 40
colonies to the Commonwealth of Australia and then as any other employer the Commonwealth
of Australia is entitled to make laws and regulations for its employees. Section 51(xxxv) in that
regard really would not play any part in the issue as the Commonwealth of Australia as the
employer has existing powers to determine the wages and conditions of those employs, as such
also the superannuation of its workers, and this was made very clear by the Framers of the 45
Constitution when they debates the transfer of personnel from the colonies to the Commonwealth
of Australia that each could have its own superannuation system and neither was compulsory
upon the other.
If subsection (xx) was the all out powers as the High Court of Australia now purports it to be
then it basically states that the Framers of the Constitution were wrong in what they stated and 50
what their intentions were in regard of States having their own superannuation, as the

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Commonwealth have this power only, alternatively it must concede that the Commonwealth of
Australia has no constitutional legislative powers to dictate superannuation to anyone not being
in employment with the Commonwealth of Australia at it remains to be an internal State affair.
As I have set out below also the various legislative powers the Commonwealth of Australia has,
it must be clear that if the Commonwealth of Australia implements a general power as it 5
purports to do in regard of subsection 51(xx) relating to industrial relations matters then it own
position as an employer is no longer safe and its own workforce is as much then bound by the
same general legislative powers used in subsection 51(xx) as is any other employee. This,
also means that any special provisions the Commonwealth of Australia may have provided to its
own military staff in regulations or laws may if in conflict with the general legislative powers 10
use of legislation in the WorkChoices provisions now have to go.
Neither can the Commonwealth of Australia apply any taxation exclusion for any of its own
employees, soldiers or not, as this would be in breach of constitutional provisions that taxation
must be for the whole of the Commonwealth and the fact that the Commonwealth of Australia
as Executive government employs people cannot give the Federal parliament any additional 15
powers implied or otherwise prohibited in the Constitution
Hence, I view the Commonwealth of Australia might just discover that they might have opened a
Pandora Box, or otherwise to say, a can of worms, they wish they had never done.

As I understand it the High Court of Australia (Unable to verify precisely the case as I am locked 20
out of accessing High Court of Australia files under the edu system seemingly as to prevent me
to expose more of the rot despite this goes contrary to the principle embedded in section 117 of
the Constitution) has handed down a judgment that staff of Australia Post can disregard State
laws and its delivery personal can drive their motor bikes or other vehicles upon footpaths,
regardless of the safety of citizens. 25
Constitutionally, the Commonwealth of Australia can make laws as to postal services, its
operations, but nothing in that legislative powers allows it to override State internal laws for the
good of the general community of a State where it does not interfere with the normal exercise of
commonwealth services. The fact that Australia post desires to have a person delivering mail on
a motor bike itself does not interfere with State laws if the person observes State laws. After all, 30
the commonwealth of Australia could not authorise unlicensed persons to drive a motor vehicle
in a State as it would be beyond its powers to do so. Likewise it could not override State traffic
laws and permit Australian Post workers to drive onto footpaths as the perils of pedestrians and
others as it has nothing to do with service of the commonwealth, as within the road Traffic
provisions the delivery service can be maintained. What it is about is that the Commonwealth 35
desires to ignore road rules for its own financial interest and not for any other purpose. Like how
it has closed down government book stores and now one doesnt known where to get a copy of a
Gazette and so neither enable to ascertain what new laws are about. Publication, in my view,
therefore does not occur as no one can claim that hiding publications without appropriate
facilities for a person to obtain publications is not a publication at all. Watson v Leeis a clear 40
example of this.
What we have therefore is that if within the State road rules commonwealth officers are not
hindered at all to perform the delivery service then it is in my total absurdity for the High court
of Australia to allow the commonwealth nevertheless ignore the State rights to govern its internal
structure merely because of profit issues. 45
It must also be kept in mind that Australia Post as was enacted at Federation no longer exist.
Constitutionally Section 114 denies the Commonwealth to raise any taxes upon commonwealth
properties. As former Telstra sites are flogged of to private purchasers without a change of
jurisdiction from Federal to State jurisdiction (consider the POINT NEPEAN dilemma) then
technically local councils cannot charge rates upon properties that were purchases from Telstra 50

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where they constitutionally that is remain to be Commonwealth Territories. While the
commonwealth may have allowed change of titles from itself to the private purchaser, in real
terms did never occurred as the sovereign of the property for all purposes remains to be the
Commonwealth of Australia. This is a very highly technical question and has already been
extensively canvassed by me in previous published books and as such I am not going to occupy 5
further pages to state the case again, other then to say that where the Commonwealth of Australia
has flogged of most of the Post offices, then those employed are not in employment of Australian
Post but in employment of the owners of the post offices. Indeed, when I contact Australia Post
of mail not being delivered or having been delivered on wrong addresses I am constantly advised
that I must take it up with the private owners of the local post office as it is out of their hands. As 10
such, the mail delivery is done by people employed, or subcontracted by those owning the Post
office but under the umbrella of Australia Post. It would therefore be a gross abuse of power by
the Commonwealth of Australia to allow Australia Post under this cover having people driving
their bikes on footpaths to the peril of the pedestrians and being to terrorise other road users.
As like Australia Post offices and Telstra properties, as they are transferred to the 15
Commonwealth of Australia within Section 69 of the Constitution which does not have until
the Parliament otherwise provides then the flogging of out our crown jewels by the
Commonwealth of Australia is unconstitutional. The commonwealth of Australia can legislate to
the manner Australia Post and Telstra was to operate where it owned the properties, but no one
could sensibly argue that subsection 51(v) powers were handed to the Commonwealth of 20
Australia merely nilly willy, as it was specifically done to ensure that the Commonwealth would
have all legislative powers to aid its ownership of the combined postal and telecommunication
services. I have no doubt that had the Framers of the Constitution not provided for the postal and
telecommunications to be handed over to the federation subsection 51(v) would never have been
included as it would have interfered with the State internal processes. It therefore has resulted 25
that any telecommunication powers other wise possessed by the Commonwealth of Australia is a
spend force where it sold, and so unconstitutionally, Telstra and a large part of Australia Post.
Neither do I accept that the Commonwealth of Australia can have its own future funds being
it for future superannuation payments or otherwise, as it goes against the provisions of Section 94
of the Constitution. The Commonwealth of Australia must hand over any monies it has not 30
used for Commonwealth purposes.

* Moment Gary, how then does it provide for superannuation of its workforce?

**#** Not a slush fund, I can assure you. In fact there was a news bulletin that the Department of 35
Taxation is unable to collect superannuations contributions employers have to pay in the
hundreds of millions of dollars and that some employers go broke without having paid a cent in
the superannuation funds, regardless what they deducted from their employees wages.

* Can that be right? 40

**#** Of course not and this may underline it is all up the creek, so to say. Again, I blame the
High Court of Australia for this as if it had all along stuck to the way the Framers of the
Constitution intended constitutional provisions to be applied we may never have ended in this
constitutional legal mess. Lets look at the superannuation issue regarding federal employees and 45
considering that superannuation payments, at least where constitutionally permissible, are to be
part of the Appropriation Bills. As such, if any employee is entitled to superannuation then the
Commonwealth of Australia must pay this monies into a employees nominated fund/account, by
this the monies have been spend for constitutional purposes and as such neither can be deemed to
be some surplus. Only the employee then can access that money subject to legislative provisions, 50
which apply to anyone else in the country. After all the Commonwealth of Australia as an

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employer cannot have any greater legislative power then any other employer. While I dispute the
Commonwealth of Australia to have any general legislative powers to dictate any business to
pay 9% superannuation contribution or something like that, as it certainly does not fall under the
provisions of subsection 512(xxiii) dealing with invalid pensions and old age pensions, if for
purpose of argument we were to ignore this for a moment then the Commonwealth of Australia 5
cannot have different powers of legislation as the general legislative powers overrule any
employers rights. As such, what is good for the Goose is good for the Gander, so to say. If a
private employer if obligated to pay to the Department of Taxation for collection for
superannuation funds then the Commonwealth of Australia would likewise be obligated to do so
and cannot itself have a slush funds under the title of being a future funds. As any moneys 10
collected by the Department for Taxation cannot be spend but by Appropriation Bill being passed
by the Federal Parliament, and in fact taxation laws relating to deductions are in real terms also
Appropriation laws, then if the Department of Taxation were to have the monies in general
revenue it clearly is part of this and cannot be paid out to anyone but by the parliament passing
Appropriation lBills. It would obviously be absurd for employees having to await for the Federal 15
parliament to pass special legislation as an Appropriation Bill for the person to be able to draw
his own earned monies and essential are his, and for this also I view that the Department of
Taxation (Tax Department) has no business to deal with superannuation monies.
One of my sons is having extra monies from his salary paid into a superannuation funds, yet, for
all he knows the employer may never pay this money to a appropriate body and my son could 20
find out years later that the moneys were never paid and the employer, so to say, went broke
having used up his monies. Now, what kind of s system is this really, where the Commonwealth
of Australia makes all kinds of devious laws but does not appropriately supervise matters yet
through the High Court of Australia seeks to gain more and more powers.
As a child I used to have this puppet on a string and when now someone refers to the High 25
Court of Australia It reminds me always to this puppet on a string I had as a child.
Anyhow, getting back to the superannuation issue, the commonwealth of Australia, as any other
employer has the right to make regulations for its employees but it cannot invoke powers of the
Federal Parliament to provide for laws that override or otherwise undermines general law (for
the whole of the Commonwealth) application. The Commonwealth of Australia must by Section 30
94 of the Constitution return any surplus to the States and cannot have any future funds.
What it can do however is to pay any due superannuation payment into the respective
superannuation accounts of the relevant employees and it no longer holds the purse string of the
superannuation entitlements and as such the money does not float around in some future funds
and neither, so to say, can be gambled away by some treasure who desires to make a gambling on 35
the stock exchange and as I understood it lost about 5 billion dollars.

* Excuse me for sounding ignorant, but could not the monies be put into Government bonds and
so make it better for the commonwealth of Australia to have monies available?
40
**#** That is something I have already dealt with in past published books. I see no problem with
a superfund, if so duly authorised by the account holders to invest monies into government
bonds, but that is a total different issue. All moneys in a future funds must be returned to the
State without delay unless they are paid into accounts by special Appropriation laws enacted, and
monies that are a residue of past years cannot be paid into a superannuation fund without 45
Appropriation Bill passed for this as they were not spend when they had to. To be honest there
are numerous other constitutional issues I could cover but the best thing Readers can do is to read
the books that have been published. I think we better now get back to the issue of law
enforcement of subsection 51(vi). The maintenance of Commonwealth law (subsection 51(vi) is
provided for but not that of the maintenance of State law! The subsection 51(v) therefore must be 50
interpreted in its proper perspective and not be perceived that soldiers can invade the streets in

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the States and have tanks being commandeered upon trade unionist or for that matter upon the
individuals as in fact the Framers of the Constitution very much outlined what was to be intended
with these powers and its usage of it as some quotes below shows. Granted, for purpose of
defence powers the Framer of the Constitution held that then the military could commandeer
trains or other form of transport as to be able to move its soldiers and equipment but that is 5
totally different then what the High Court of Australia in its 1943 decision seems to make out of
it.
QUOTE
809 It is sometimes forgotten that at federation the colonies maintained their own defence forces.
Section 51(vi) refers, in terms, to the naval and military defence of the Commonwealth "and of the several 10
States", making clear that defence is to be exclusively a Commonwealth activity. There is something else
however that needs to be noted about this provision. It is that, literally, that is textually exclusively, it appears
to contemplate the use of the military forces of the Commonwealth to execute and maintain the laws of the
Commonwealth
[1021]
, at any time and in any circumstances. Elsewhere I refer
[1022]
to statements by judges
of this Court to the effect that constitutional provisions should be construed with "all the generality which the 15
words admit". The use of military forces, the imposition in effect of martial law in a democracy, except
perhaps in times of external threat or civil insurrection, is anathema to democracy itself, and yet, if s 51(vi) is
to be construed too generally and textually or literally, and without reference to other provisions of the
Constitution, including perhaps that all of the powers are to be exercised to make laws for the good
(democratic) government of the Commonwealth, that result might conceivably follow. 20
810 Reliance was placed upon some remarks of Latham CJ in Pidoto v Victoria
[1023]
for a proposition that
because the defence power was not subject to any restriction imposed by s 51(xxxv), nor should the
corporations power be. Pidoto was decided in 1943 when Australia was still engaged in a war that menaced
the whole nation. In these circumstances it is easy to see how the regulation as it was then put of "man
power" could be closely aligned with the defence of the nation. It was also a major source of food and raw 25
materials for our armed forces and their allies. As has been said many times, the defence power waxes and
wanes as the danger mounts and fades away. The remarks of Latham CJ in Pidoto were singularly his and
obviously greatly influenced by the perils of the times. Decisions made in such circumstances not
infrequently are products of them and cannot withstand the scrutiny of peaceful posterity
[1024]
.
END QUOTE 30
QUOTE
[1021] Section 51(vi) provides:
"The Parliament shall, subject to this Constitution, have power to 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 35
several States, and the control of the forces to execute and maintain the
laws of the Commonwealth".
[1022] See Pt IV, Div 2 of these reasons.
[1023] (1943) 68 CLR 87 at 101.
[1024] Another example is Sickerdick v Ashton (1918) 25 CLR 506, decided during the First World War, in 40
relation to the vexed issue of wartime recruitment. There, legislation was held to be constitutional within the
defence power in its application to a pamphleteer who published some mildly passivist statements.
END QUOTE
The joint judgment stated
QUOTE 45
212 With that background in mind, it was to be expected that a new instrument of government such as the
Constitution would encompass these matters, and do so at several levels. One arm of the defence power
conferred by s 51(vi) is "the control of the forces to execute and maintain the laws of the Commonwealth"; on
the application of the Executive Government of a State, the Commonwealth should protect the State "against
domestic violence" (s 119)
[270]
. In their work
[271]
, Quick and Garran discussed the concept of "domestic 50
violence" in s 119 with detailed reference to the decision of the Supreme Court of the United States in In re
Debs
[272]
which supported the intervention of the federal government in the Pullman Strike to break the
strike by force.
END QUOTE
QUOTE 55

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[270] See Re Aird; Ex parte Alpert (2004) 220 CLR 308 at 327-328 [61].
[271] The Annotated Constitution of the Australian Commonwealth, (1901) at 964-965.
[272] 158 US 564 at 582 (1895).
END QUOTE
It never was intended that somehow the Commonwealth of Australia would have its own 5
Commonwealth police force arresting people on the street in a State if they were not complying
with Commonwealth law! It was relating to Commonwealth law strictly relating to the defence
force to occupy and use defence facilities and not as to use some purported Commonwealth law
against so called terrorist as to hold them in detention or otherwise rob them of their civil
rights. Any law enacted within the powers of subsection 51(vi) must therefore be a law that 10
relates to the defence force actual operations and not to civilians who are not engaged by the
Commonwealth of Australia as to determine their rights in some imaginary war.

Mr. REID.-If there was a war between two countries, and a cruiser from the one country was approaching
the other, you would know that it was not on a visit of brotherly love. 15

It must be clear that the Framers of the Constitution referred to the defence power as to be used
between two countries at war and the imaginary enemy within was not anticipated for this.
In my view, a amendment of the Constitution would be required to give the Commonwealth
specific legislative powers in regard of civil rights or better to state the abolition of civil 20
rights in time of any imaginary war to make it constitutionally valid. Then again, why bother
about a referendum and risk that this more then likely would fail if all you need to do, so to say,
is to stack the High Court of Australia with lawyers who might go along with whatever the
Federal government desires and then the High Court of Australia will manipulate its powers to
purport some legislation to be constitutionally valid despite it never was and any sensible 25
consideration of the Hansard records of the Constitution Convention Debates would bring this
out that the legislation is unconstitutional.
Subsection 51(vi) in fact was referring to the enforcement of Commonwealth law regarding
defence power and so in event of war and not in peace time other then to enable the
Commonwealth of Australia to maintain military bases and other facilities within a State, and 30
other such conduct. the protection of the States was provided for so that upon a proclamation of a
governor of a State the Commonwealth forces could then assist in a domestic violence
involving violence beyond the control of local law enforcement, and no more. If therefore
subsection 51(vi) had not included the reference to the States then it would have prohibited the
Commonwealth defence forces to assist a governor of a state in such matters regardless if it was 35
proclaimed. Subsection 51(vi) therefore does no more but to give the Commonwealth of
Australia legislative powers to legislate how to use Commonwealth defence forces if within
section 119 of the Constitution requested to come to the aid of a State by a proclamation of the
Governor of the State. Without subsection 51(vi) referring to the States it could not legislate as to
how Commonwealth defence forces could operate within that State. I maintain therefore that the 40
Adelaide Company of J ehovah's Witnesses I ncorporated -v- The Commonwealth [1943] HCA
12; (1943) 67 CLR 116 (14 J une 1943) judgment. Was wrongly decided as it interfered with the
constitutional guarantees embedded in the Constitution.
If any of the judges had bothered to research the Hansard records of the Constitution Convention
Debates they also might just have discovered some of the following statements; 45

Mr. GILLIES: The people themselves have undertaken the duty of creating such a force as, in their
judgment, would be sufficient to meet any foe that might land on these shores. There is nothing in these 50
resolutions that I can see that would justify the statement that it is contemplated by any colony, or by
any group of colonies, or by any individual, to bring about a standing army of such a kind as that to
which the hon. member referred-a standing army that might be a menace to the liberties of the people.

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Again;
There is nothing in these resolutions that I can see that would justify the statement that it is
contemplated by any colony, or by any group of colonies, or by any individual, to bring about a
standing army of such a kind as that to which the hon. member referred-a standing army that might be
a menace to the liberties of the people. 5
Again;
to meet any foe that might land on these shores


And
Mr. BARTON.-If the honorable member's exclamation means more than I have explained, then the
best thing to do is to confide to the Commonwealth the right of dealing with the lives, liberty, and 20
property of all the persons residing in the Commonwealth, independently of any law of any state. That
is not intended,
And
Mr. BARTON.-Yes; and here we have a totally different position, because the actual right which a
person has as a British subject-the right of personal liberty and protection under the laws-is secured by 25
being a citizen of the states. It must be recollected that the ordinary rights of liberty and protection by
the laws are not among the subjects confided to the Commonwealth. The administration of [start page
1766] the laws regarding property and personal liberty is still left with the states. We do not propose to
interfere with them in this Constitution. We leave that amongst the reserved powers of the states, and,
therefore, having done nothing to make insecure the rights of property and the rights of liberty which 30
at present exist in the states,
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 lead a majority in the Parliament 35
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.

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 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 45
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 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-

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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 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. 5
How then can the High Court of Australia argue that the Commonwealth can take goods of a
person? After all, as shown above Barton made clear that the Constitution gave no powers as to
liberty and property!
Sir JOHN DOWNER.-
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 15

Mr. BARTON.-Yes; and here we have a totally different position, because the actual right which a person has as 20
a British subject-the right of personal liberty and protection under the laws-is secured by being a
(And in regard of citizenship;)
Mr. BARTON.- 25
I took occasion to indicate that in creating a federal citizenship, and in defining the qualifications of
that federal citizenship, we were not in any way interfering with our position as subjects of the British
Empire. It would be beyond the scope of the Constitution to do that. We might be citizens of a city,
citizens of a colony, or citizens of a Commonwealth, but we would still be, subjects of the Queen.
And; 30
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 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."
35
Convention) (Chapter 33 of the CD)
Mr. HIGGINS.-But suppose they go beyond their power?

Mr. GORDON.-It is still the expression of Parliament. Directly a Ministry seeks to enforce improperly 40
any law the citizen has his right.
And;
Mr. BARTON.-Our civil rights are not in the hands of any Government, but the rights of the Crown in
prosecuting criminals are.
And 45
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.

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 purposes. This
question of the creation of a military force is one of the blots upon these resolutions. We want no military 55
force within New South Wales. All we want to do is to make every man who is either a native of the soil, or

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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 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 5
Grey, yesterday, in his interesting speech, we have no necessity to keep a large standing army at a large cost
to the 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 10
this country will rise as one man 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 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 15
give the go-by altogether to the idea of imperial federation. So long as we remain in our present position as
individual 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 20
have to bear the brunt of 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 ever against the creation of anything like a 25
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 descendant of an Englishman, I
was surprised to find a gentleman occupying a position under the Crown proposing what 100 years ago 30
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."
Again;
let us set our face once and for ever against the creation of anything like a military despotism. 35
And
Our own police are quite sufficient for the preservation of order within.

Clause 112-The Commonwealth shall protect every state against invasion, and, on the application of
the Executive Government of a state, against domestic violence.
Mr. GORDON (South Australia).-I beg to move-
That the word "invasion" (line 2) be struck out, and the word "attack" substituted.
Why should the protection of the Commonwealth be confined only to invasion? We are not likely ever to be 45
invaded, but we are exceedingly likely to be attacked.
Mr. BARTON.-Any attack is an invasion in the sense in which the word is used in this clause.
Mr. GORDON.-The gunning by a cruiser standing off a city is not an invasion, but it is an attack.
Mr. BARTON.-It is an attack which is part of an invasion; if the attack succeeds invasion follows.

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Mr. GORDON.-I think "attack" is very much better. Of course, if the word "invasion" covers the ground,
well and good; but while "attack" covers "invasion," does "invasion" cover "attack"? Originally, the
amendment I intended to move used both the words "attack" and "invasion."
Mr. REID.-You can repel an invasion 100 miles from the coast.
Mr. GORDON.-But how does the honorable member know that an invasion is intended? 5
[start page 692]
Mr. REID.-If there was a war between two countries, and a cruiser from the one country was
approaching the other, you would know that it was not on a visit of brotherly love.
Mr. GORDON.-They may not intend to invade the chances are that they do not intend to invade, but to
attack. 10
Mr. BARTON.-Do you think that the Commonwealth, if a hostile fleet appeared for the purpose of
attacking, and not invading, would keep the batteries silent and the Australian fleet at anchor?
Mr. GORDON.-Something may turn upon this. By this clause the Common-wealth is only bound to protect
every state against invasion. If the Commonwealth neglected its duty, and South Australia was invaded, South
Australia would have a claim against the Commonwealth. But, it appears to me, that it should have an equal 15
claim against the Commonwealth if it was simply attacked, and not invaded. However, if the leader of the
Convention thinks that "invasion" covers "attack," I am willing to leave the matter to the Drafting Committee,
but I have some doubt on the point.
Mr. BARTON (New South Wales).-I am perfectly satisfied that when the guns are booming there will
be no discussion about the meaning of the two words. 20
Mr. GORDON.-Ought the construction of this Act to be left until the guns are booming? I thought
the object was to prevent the guns booming at all.
Mr. HOLDER (South Australia).-I think there is something in the point raised by my honorable friend (Mr.
Gordon). We have previously used separately the terms "naval" and "military." Now, an attack would be
naval, while an invasion would be military. 25
The CHAIRMAN.-Does the honorable member (Mr. Gordon) press his amendment?
Mr. GORDON.-No. If the leader of the Convention relies on his booming guns I am content.
The amendment was withdrawn.
Mr. DEAKIN.-With regard to time of war there are Imperial regulations which direct the procedure to be
followed; but even then the money and forces required would be raised by the Parliament and expended
through the Minister of Defence. Whether in time of war or in time of peace no important step should be
taken in connexion with the naval or military forces of the Commonwealth except through the Minister
of Defence. 35
Mr. BARTON.-As a member of the Executive Council?
Mr. DEAKIN.-The Minister of Defence advises the Governor-General through the Executive Council, or
with the knowledge of his colleagues. The Governor-General is to be in the position in which the Queen
is in regard to accepting advice. What is necessary is to make it clear that the claim several Governors have
advanced in these colonies, and which has been rejected in all the colonies except, perhaps, one, is not to be 40

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recognised under the Commonwealth. The claim that has been made by some Governors amounts to this:
That they are endowed with some personal power and personal control of the military and naval forces
independently of their Executive Council, and independently of the Parliament of the country. I have been
supplied by an ex-Minister of Defence in this colony with a great quantity of correspondence, some of it of an
exasperating and exasperated character, with regard to this question in Victoria. We found the position 5
intolerable until we settled it that the ordinary constitutional rule should apply in connexion with naval and
military departments as with regard to others; and that, while the Governor is to remain as Her Majesty's
representative in supreme control of all functions of government, he will be required to act in this, as in other
[start page 2252] matters, on the advice of his Executive. In no case is he to be endowed with the personal
power to act over the heads of Parliament and the Ministry, by whom these forces are called into existence 10
and by whose contributions they are maintained.
And
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 15
Constitution.
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.
And 20
Mr. BARTON.-As it is now, the, Governor cannot act without the advice of the Minister any more than the
Queen, can, even if not specified to, be "in Council."

Sir JOHN BRAY:
. I agree with the hon. member, Mr. Dibbs-and no one, hitherto, has been bold enough to say that he agrees
with anything that hon. I member has said-that it is not desired to raise up a great standing army for our
defence from imaginary enemies. We feel that it is necessary for each colony to do something to provide for
defence from common foes; and I think we may rely that a federal parliament will do the same, and no more. 30
They will have no ambition to act contrary to the wishes of the Australian people, and, as far as I know those
wishes, they are not that we should rear up anything like a large standing army. They are anxious that
we should have amongst us some force which could be relied upon in time of danger; they are willing to
give their own services to augment that force when the necessity arises. I hope, however, that no federal
government or parliament will ever raise any unnecessary military or naval forces in the colonies, because 35
they know the people are not prepared to support such a scheme.

See also;
INSPECTOR-RIKATI and the BANANA REPUBLIC AUSTRALIA
Dictatorship & deaths by stealth. Preliminary book on CD edition. 40
ISBN 0-9580569-3-5 Published October 2002

This book sets out many constitutional issues using extensively Hansard records.

INSPECTOR-RIKATI & There is no Government to go to war 45
A book on CD About Legal Issues Confronting Australia
ISBN 0-9580569-5-1 Published March 2003

The High Court of Australia in Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September
2001) relies upon what the USA Supreme Court stated, just that the Framers of the Constitution 50
made clear they didnt follow and didnt want to follow the path of the USA! Meaning, that then
to use judgments dealing with a totally different body politics is in my view absurd and plain
stupid unless it has the like constitutional application as it has in the Commonwealth of Australia

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Adelaide Company of J ehovah's Witnesses I ncorporated -v- The Commonwealth [1943] HCA 12; (1943) 67 CLR
116 (14 June 1943) Latham C.J. 2.
In the first place, it is important to observe that s. 116 is an express prohibition of any law which falls within
its terms. The section deals with laws which in some manner relate to religion. The Constitution, however, 5
contains no provision which confers upon the Commonwealth Parliament any power to make laws with
respect to the subject of religion. Section 116 therefore cannot be regarded as prescribing the content of laws
made with respect to religion upon the basis that the Commonwealth Parliament has some power of
legislating with respect to religion. Section 116 is a general prohibition applying to all laws, under whatever
power those laws may be made. It is an overriding provision. It does not compete with other provisions of the 10
Constitution so that the Court should seek to reconcile it with other provisions. It prevails over and limits all
provisions which give power to make laws.

Accordingly no law can escape the application of s. 116 simply because it is a law which can be justified
under ss. 51 or 52, or under some other legislative power. All the legislative powers of the Commonwealth 15
are subject to the condition which s. 116 imposes.
Again;
The Constitution, however, contains no provision which confers upon the Commonwealth Parliament any
power to make laws with respect to the subject of religion. Section 116 therefore cannot be regarded as
prescribing the content of laws made with respect to religion upon the basis that the Commonwealth 20
Parliament has some power of legislating with respect to religion. Section 116 is a general prohibition
applying to all laws, under whatever power those laws may be made. It is an overriding provision. It does not
compete with other provisions of the Constitution so that the Court should seek to reconcile it with other
provisions. It prevails over and limits all provisions which give power to make laws.
25
However, at 4 Latham CJ wrongly argued:
. Section 116 is required to protect the religion (or absence of religion) of minorities, and, in particular,
of unpopular minorities.

No such intention existed by the Framers of the Constitution Convention Bill 1898 30
(Constitution), as their main issue was to prevent any kind of religious conflict to be created by
any form of Federal Parliament legislation. Even the funding of churches was held to be
unconstitutional!

Mr. REID.-I suppose that money could not be paid to any church under this Constitution?
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.
40
Even so Section 68 provide the Command in Chief in the Governor-General, only on advise of
Ministers can any declaration of war be made.

68 Command of naval and military forces
The command in chief of the naval and military forces of the 45
Commonwealth is vested in the Governor-General as the Queens
representative.

No declaration of war appears to have been made against Afghanistan and/or Iraq, yet Australian
troops were invading these sovereign nations. 50

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
It shows; Then it would follow the action of the Commonwealth! 5

Therefore unless and until a DECLARATION OF WAR was published in the gazette there was
constitutionally no power for the Minister of Defence to authorise Australian troops to invade Ira
on 19 March 2003 or there about and I view the High Court of Australia having had my case
lodges with supporting evidence that no DECLARATION OF WAR had been published, then 10
was constitutionally obligated to hear my case for Section 75(v) of the Constitution for a
Mandamus/Prohibition and its refusal to do so in my view only indicates that the High Court of
Australia could not care less what is constitutionally appropriate but merely, so to say, does
charry picking to elicit what perhaps might suit it best to justify or purportedly justify its orders.
Hansard 9-4-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) 15
(Chapter 33 of the CD)
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, by whatever title he is designated. 20

Convention) (Chapter 33 of the CD)
Mr. SYMON.-
We know that the Governor is the chief executive officer, 25

Mr. BARTON.-Yes. The Queen is the Commander-in-Chief of the British Army. She has the sole
power of making peace and war. According to constitutional assumption it is her army. But who 30
exercises the control of the Imperial Army? Is it not the adviser of the Queen? Would there not, as I
said before, be a revolution if the Queen exercised her powers without consulting her Ministers?
And
Mr. BARTON (New South Wales).-
Then, again, there is the prerogative right to declare war and peace, an adjunct of which it is that the 35
responsible Minister. Wherefore, we all came to the conclusion, as constitutional writers have long
come to the conclusion, that the prerogative is given in trust for the people, and is, therefore, only
exercised at the instance of a responsible Minister. I should like to know whether there would not be a 40
revolution in England if the Queen chose to declare war or to make peace without the sanction or
advice of a responsible Minister? That would be as absolutely gross an infraction of the Constitution as an
attempt to abolish the House of Commons, as the advent of a second Protector, not only taking away the
bauble, but taking all those who surrounded it. Do we not then come to this conclusion, that the
Constitution is absolutely safe in this form as we understand it, that you can not have a prerogative of 45
the Crown in these modern days which can be exercised without the advice of a responsible Minister if
a responsible Minister chooses to advise?

Yet, the High Court of Australia has allowed numerous breached of legislation in this regard.
And as shown further, it seems to lack any credibility to ensure the intentions of the framers are 50
appropriately applied.

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Mr. BARTON.-
Another guarantee of the preservation of the Constitution [start page 2471] until the electors
themselves choose to change it, is contained in the provision that the interpretation of the Constitution 5
by the High Court is to be final. 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. I think it is right and fit
that the highest court in Australia should be left as the guardian of the expressions of the people, and the sole 10
body to determine finally what the people meant when they used those expressions.
And
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 15
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 20
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. Having provided for all these things, I think this Convention has done well. The
question for us is this-the question for the electors is this: Is this a Constitution which will enable a free 25
people to come together, and in community together to work out their own destiny? Who can deny it? Is it a
Constitution which gives all reasonable and liberal guarantees of freedom? That can only be answered in one
way. Is it a Constitution the action of which, until amended by the people, is preserved and safeguarded?
There is only one answer to that. Is it a Constitution which the people themselves, by their will expressed by
their Parliament and themselves, are able to alter to suit their needs under conditions of reasonable thought, 30
without unreasonable difficulty? There can be no answer but one to. that question

Adelaide Company of J ehovah's Witnesses I ncorporated -v- The Commonwealth [1943] HCA 12; (1943) 67 CLR
116 (14 J une 1943)
Under the Subversive Associations Regulations, 3 to 8 inclusive, if the Governor-General, by Order published 35
in the Gazette, declares that the existence of any body corporate or unincorporate is prejudicial to the defence
of the Commonwealth or the prosecution of the war, that body becomes an unlawful body and is dissolved by
force of the declaration (regs. 3 and 4). Any doctrines or principles which were advocated by that body
become unlawful and any printing or publishing of such doctrines or principles becomes unlawful; and no
person shall hold or convene any meeting or with any other person assemble in any place for the purpose of 40
advocating such doctrines (regs. 7 and 8). Any Minister can order any person to deliver any property of the
body which was held by or on behalf of or in the interests of the body to a person thereto authorized by a
Minister; any member of the Police Force of the Commonwealth or a State or Territory of the
Commonwealth, if not below the rank of sergeant, may by notice in writing declare that any persons specified
in the notice are, with respect to any bank account so specified, trustees for the body, and that declaration 45
shall, as between the persons so specified or any of them and the person on whom the notice is served, be
conclusive evidence that those persons are trustees of the body with respect to any moneys standing to the
credit of the account (reg. 6). Any property taken possession of, or delivered to a person thereto authorized by
a Minister, in pursuance of the Regulations becomes forfeited to the King for the use of the Commonwealth
and is condemned by force of the regulation; such of the property as the Attorney-General or an authorized 50
person is satisfied belonged to a body which has been declared to be unlawful may be destroyed or otherwise
dealt with as the Attorney-General directs; such of the property as the Attorney-General or an authorized
person is satisfied did not belong to such a body and as consists of books, documents or papers which the
Attorney-General or an authorized person is satisfied were used or intended to be used in connection with the
activities of such a body, or which, in the opinion of the Attorney-General or an authorized person, advocate 55
unlawful doctrines, may be destroyed or otherwise dealt with as the Attorney-General directs; and the
remainder of the property may be returned to the owners thereof or otherwise dealt with as the Attorney-
General directs (reg. 6b).

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I repeat;
Any Minister can order any person to deliver any property of the body which was held by or on behalf of or in
the interests of the body to a person thereto authorized by a Minister; any member of the Police Force of the
Commonwealth or a State or Territory of the Commonwealth, if not below the rank of sergeant, may by
notice in writing declare that any persons specified in the notice are, with respect to any bank account so 5
specified, trustees for the body, and that declaration shall, as between the persons so specified or any of them
and the person on whom the notice is served, be conclusive evidence that those persons are trustees of the
body with respect to any moneys standing to the credit of the account (reg. 6).

Well it is well overdue that judges of the High Court of Australia, so to say, smarten up about 10
what is constitutionally applicable as having members of the Commonwealth police force (AFP)
invading my State to perhaps seek top prevent me to exercise my democratic rights might rather
end up with them facing all kind of charges such as kidnapping (if they were to take me or
anyone else in custody) trespassing, etc if it is all done under Commonwealth law.
15
It must be obvious that lawyers are slowly, so to say, brainwashed by all these ill conceived High
Court of Australia judgments that portray a totally different kind of constitutional position then
that actually is constitutionally applicable. It also shows the danger where you have people
getting into judicial powers who, as it appears to me, really never bothered to research the
Hansard records of the Constitution Convention Debates sufficiently as to be able to hand down 20
in all cases legally and constitutionally soundly based judgments regarding the issues before the
Court.
The mere fact that the High Court of Australia is now claiming that subsection 51(xx) was
including powers that previously never was understood by the High Court of Australia to exist in
more then 100 years is a condemnation upon itself. If anything underlines that we need a better 25
trained and better educated High Court of Australia that will take the time to research all relevant
matters including researching the Hansard records of the Constitution Convention Debates and
not so to say have to get their education from a person like myself who had never any formal
education in the English language, neither English being my native language and who had no
formal education in legal matters yet somehow appears to understand and comprehend certain 30
constitutional issues better then any judge of the High Court of Australia. A clear example is, the
issue regarding Section 127 of the Constitution, as it was at the time of federation.
The High Court of Australia stated (Wilson J);

although forbidden to consider the debates of our own constitutional conventions for the purpose of 35
discovering what the delegates thought was the meaning of a particular provision accepted by the
Convention

Why, when the intention of the Framers of the Constitution was, and so expressed time and
again, that the High Court of Australia would have to consult the Hansard records of the 40
Constitution Convention Debates as to elicit what their intentions were in regard of constitutional
provisions.
Had the High Court of Australia not unconstitutionally from onset denied the usage of the
Hansard records of the Constitution Convention Debates then much of the legal mess existing
might have been avoided. 45
The statement;
The states have certain plenary powers, which we do not wish to cut down, except so far as may be
necessary for the purpose of federal government.

Underlines that subsection 51(xx) powers must be limited to what is necessary for the purpose 50
of federal government to enable registration, and no more. Workers conditions do not play any

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part in the registration of companies as much as that it make not one of iota different to
registration of an elector to vote if he/she has any children!
Because the Commonwealth of Australia is contemplating to introduce some form of Identity
Card obviously citing fraudulent abuse as an excuse, the High Court of Australia ought to ensure
it stop this rot of power abuse contrary to civil rights and does not allow for further abuses of 5
power.
This document is not for the purpose to set all matters out why constitutionally any form of
identity card by the Commonwealth of Australia would be invalid, but safe to say that it
interferes with the civil rights of citizens. And if there may be an issue about citizens obtaining
passports, the jack Thompson case is a clear example how the Commonwealth of Australia is 10
misusing its powers as to try to trace the rights of civilians to use their freedom of movement by
checking a passport not for if the person is the person so claimed but for ulterior purposes. And,
constitutionally the Commonwealth of Australia has no power to interfere with any Australian to
leave or to return to the Commonwealth of Australia and even this the Framers of the constitution
extensively debated. In my view, the conviction of jack Thomas was upon the wrong legal 15
principles and on unconstitutional laws. Likewise the withholding of a passport by any one, other
then by order of a State Court, is unconstitutional, yet the Minister of foreign Affairs has made
known to cancel passports of Australians the Commonwealth of Australia does not want to travel
overseas. No such constitutional powers exist but again, where we have a High Court of
Australia that has handed down a multitude of ill-conceived judgments then the Federal 20
Government can do as it likes and ignore constitutional prohibitions, and if anything the
statement by Mr. Malcolm Turnbull about the water issue and going to the High Court of
Australia (despite my previous correspondence to him about matters) to me underlines that the
High Court of Australia, so to say, is a foot-soldier for the Federal government to abuse and
misuse its legal powers to serve the Federal Government. 25

Mr. BARTON.-
If we, in these communities in which we live, have no right whatever to anticipate a return of methods which 30
were practised under a different state or Constitution, under a less liberal measure of progress and
advancement; if, as this progress goes on, the rights of citizenship are more respected; if the divorce
between Church and State becomes more pronounced; if we have no fear of a recurrence of either the
ideas or the methods of former days with respect to these colonies, then I do suggest that in framing a
Constitution for the Commonwealth of Australia, which 35
And
The court referred to all those things, and to every piece of paper on which it could lay its hands, for the
purpose of deciding that the United States was a religious nation, and inasmuch as these expressions, which
were dug up by the court in grants, were used as much under a Catholic as under a Protestant regime, but 40

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under no other regime, they then decided that the United States were not only a religious nation, but also a
Christian nation. Now, I think that those matters are better left in the hands of the states. The states
have certain plenary powers, which we do not wish to cut down, except so far as may be necessary for
the purpose of federal government. The states have power to impose Sunday observance laws. Each
state-and it is only of states that the Commonwealth will be composed-has power to regulate these 5
things within its own territory, and the territories of the states together make up the sum of the
territory of the Commonwealth. So that there is power in existence to deal with these matters without
duplicating that power.
And
Mr. WISE.-I am very glad to hear it. That strengthens my argument. if 38,000 citizens of Victoria 10
sent a petition against the inclusion of these words, not because they disapproved of the words in
themselves, but because I suppose they were afraid that the inclusion of them would confer upon the
Commonwealth some power to legislate with regard to religious observances, I say that fears of that
sort should be respected.
And 15
Dr. COCKBURN (South Australia).-May I ask the honorable member who moved the amendment whether
there is any other power the exercise of which is forbidden to the Commonwealth?
Mr. HIGGINS.-I do not think there is an express prohibition.
Dr. COCKBURN.-I think there is not. It seems to me that by making one exception we are introducing a
whole atmosphere of ambiguities; that is to say, the Commonwealth at present can only exercise such powers 20
as are explicitly vested in it. If, in addition to that, we forbid the exercise of some power, we leave an
ambiguous area between the powers specifically vested in the Commonwealth and the powers forbidden. That
opens out a whole circle of ambiguity in this respect.
Mr. HIGGINS.-I think I was wrong in what I just now stated; there is a prohibition with regard to the states
in clause 108, and there was a prohibition as to the states in clause 109. 25
Dr. COCKBURN.-There are many prohibitions with regard to the states. I am very much in sympathy with
Mr. Higgins, and if he can point out any case of this kind I would go with him.
Mr. OCONNOR.-Clause 109 was a prohibition, but it has been struck out.
Dr. COCKBURN.-It seems tome that by passing this provision we shall open the door to the possibility of
doubt as to the Commonwealth having more powers than we have vested in it. 30
[start page 1775]
Mr. WISE.-There is a prohibition with regard to interference with trade and commerce.
Dr. COCKBURN.-That is a limitation of power which is wholly vested and explicitly placed in the
hands of the Commonwealth. It is simply a limitation of the exercise of its executive power, but this is of
a different description. It seems to me that by introducing this clause we shall run the risk of indicating 35
that there is another sphere of powers which, though not specified as belonging to the Commonwealth,
are not forbidden.
Mr. HIGGINS.-The 117th clause says that a new state shall not be formed by the separation of
territory from a state without the consent of the Parliament of that state. That forbids even the Federal
Parliament forming a new state. 40
Mr. WISE.-Clause 95 provides that preferences shall not be given.
Dr. COCKBURN.-That is a limitation of the executive power, and none of the instances advanced have
satisfied me on the point I have endeavoured to lay before honorable members. I see clearly in my own mind
that an exception in this respect will throw some doubt as to the whole scope of the powers of the

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Commonwealth. By inserting these words, it may be decided that there are some powers in the hands of the
Commonwealth which are not explicitly recognised and stated.
Mr. FRASER (Victoria).-I entirely agree with our leader in this matter. I do not see that there is any
necessity for this clause. We are now a homogeneous people, and the safer plan is to leave us so.
Mr. HIGGINS.-That is what we want to do. 5
Mr. FRASER.-I am not so very sure about that. If you pass this date all sorts of extraordinary practices
may be resorted to that would, as I have already interjected, shock the whole community.
Mr. WISE.-Suppose the Federal Parliament passes a law allowing Sunday newspapers, would the
Victorians like that?
Mr. ISAACS.-They would have no jurisdiction. 10
Mr. WISE.-Yes, they would, if this is struck out.
Mr. ISAACS-Under what clause?
Mr. WISE.-Under the same clause as in America.
Mr. FRASER.-If the Federal Parliament chooses to act in this matter of Sunday newspapers, the people
will be cognisant of all that is done. 15
Mr. WISE.-We do not think them wrong in New South Wales.
Mr. FRASER.-The probability is that a majority of the people of New South Wales think that it is wrong to
allow Sunday newspapers, but they have not the courage to put them down. I believe that is the real fact. I
believe that the public men of New South Wales, have not the courage to tackle them. That is about the
answer to that interjection. If the public men have not courage to deal with these matters, of course the public 20
will follow them in various devious paths. I do not see the necessity for this clause. I hope that we are not
going to be driven to accept all sorts of extraordinary proposals simply because of something that has taken
place in the United States. We are able to take care of ourselves, and I think the clause would do more harm
than good.
Sir EDWARD BRADDON.-What harm would it do? 25
Mr. FRASER.-It might offend the susceptibilities of a homogeneous people, and in that way cause trouble
and difficulty. There would be no danger in omitting the clause, but there may be danger in putting it in.
Mr. SYMON (South Australia).-I beg to move, as an amendment-
That all the words down to "and" be omitted, with a view to the insertion in lieu thereof of the following:-
"Nothing in this Constitution [start page 1776] shall be held to empower the Commonwealth to require 30
any religious test as a qualification for any office of public trust under the Commonwealth."
I do not oppose the earlier part of the clause on the same ground as I put before, because I am satisfied in
regard to those matters, to which attention was directed when clause 109 was under discussion, that under the
ordinary operation of the common law any inhumanities and cruelties could be effectually stopped.
Mr. HIGGINS.-By which Parliament? 35
Mr. SYMON.-By either the state or the Commonwealth Parliament. I mention that to show that I do not
change my view that that part of the clause is objectionable. But I hold strongly that in consequence of the

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insertion of the new words in the preamble it is desirable that some provision should be made to make it clear
that these words are not to overspread the whole Constitution.
Mr. ISAACS.-Would not your view be carried out by leaving the residuum of the clause just as it stands?
Mr. SYMON.-I should have no objection to that, but I think it would be better to say that nothing in the
Constitution shall empower the Commonwealth to impose any religious test. I sympathize with Mr. Higgins 5
in his fear that the insertion of the words we put in the preamble might lead to an impression amongst a larger
or smaller section of the community that it would be possible to impose some religious test, and that the
sentiment conveyed by the words might overspread the Constitution in some way. My honorable friend
desires that there should be something in the nature of a counterblast, for the satisfaction of those who may
entertain that apprehension. 10
Mr. FRASER.-There is no necessity for it.
Mr. SYMON.-There is great force in what Mr. Fraser says, but there are a number of us who, for reasons
which do not militate against our deep reverence and the deep faith that may be in us, think that the words
inserted in the preamble are, at all events, open to misconstruction on the part of a larger or smaller section of
the community. I do not wish to enter into the subject, but I felt that, and it is with a view of getting rid of any 15
apprehension of that kind, and of securing every vote possible for this. Bill, that I think it well to yield to the
view that has been expressed so forcibly by Mr. Higgins.
Mr. FRASER.-That is the only argument in its favour.
Mr. SYMON.-It is a strong argument. We have inserted certain words in the preamble, and we should put
in as a solatium, if you like, to those holding opinions in opposition to these words, something else on which 20
the may rely.
Mr. DOBSON.-Would not the amendment leave it open to the Federal Parliament to dictate to any state
that it should not open its picture galleries and museums on Sunday?
Mr. SYMON.-There, is no power under the Constitution that would enable the Federal Parliament to do
that. I am satisfied that it is embodied in the Constitution as a part of the unwritten law that no church 25
establishment shall prevail, and that religious freedom shall be observed.
Again;
Mr. DOBSON.-Would not the amendment leave it open to the Federal Parliament to dictate to any state
that it should not open its picture galleries and museums on Sunday?
Mr. SYMON.-There, is no power under the Constitution that would enable the Federal Parliament to 30
do that.
And
Mr. OCONNOR.-The provisions of the American Constitution in regard to the powers handed over to the
Federal Parliament are not nearly so definite as the provisions of our Constitution.
Mr. HIGGINS.-The American Constitution has no recital in the preamble such as we have just inserted in 35
our Constitution.
Mr. OCONNOR.-Yes. But the amendment of the American Constitution to which the honorable and
learned member refers was rendered necessary by the fact that there is not the definite division of powers in
that Constitution that we have in our Constitution. I cannot imagine that clause 52 gives any ground from
which it could be argued that the Federal Parliament has the right to interfere in regard to the exercise of 40
religion, or to deal with religion in any way.
Mr. KINGSTON.-Except in regard to special races.

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And
Mr. HIGGINS (Victoria).-I want if I can to recommend the Commonwealth Bill and get it carried. But
why should we be faced with this difficulty? You have put in the preamble a religious recital which is not in
the Constitution of the United States of America, but you have not put in the safeguard against religious
intolerance which they have there. I ask honorable members how I shall face that difficulty? There is a grave 5
suspicion evidenced by what I said that there were 36,000 distinct signatures upon this very point. I do not
think it is too much for me to say that we ought to reassure those persons. They may be wrong. It may be
right, as my friend (Mr. Barton) says, that there is no power by implication in the Commonwealth to pass this
law. It may be right as he says, that the Commonwealth ought to have the power. But I only say that it is a
state matter, and it should be left to the states. My honorable friend (Mr. Fraser), with all respect to him, 10
shows the current ignorance on this matter because he will not understand that the state, if my proposal is
carried, will have the same power as it has now to stop any theatrical performances on Sunday.
Question-That the words proposed to be omitted stand part of the proposed new clause-put.
The committee divided-
Ayes ... ... ... 22 15
Noes ... ... ... 19
Section 116 of the Constitution was passed!
Do note;
Mr. SYMON.-There, is no power under the Constitution that would enable the Federal Parliament to
do that. 20

Well, if one belief the High Court of Australia then subsection 51(xx) might just allow for this
also where it concerns a corporation.
Do note;
the rights of citizenship are more respected; if the divorce between Church and State becomes more 25
pronounced

Do note, that as Section 109 was omitted (on 8-2-1898) the new sought version submitted was;
The Commonwealth shall not make any law prohibiting the free exercise of any religion, or for the
establishment of any religion, or imposing any religious observance, and no religious test shall be 30
required as a qualification for any office or public trust under the Commonwealth.

Followed with the amendment;
Mr. SYMON (South Australia).-I beg to move, as an amendment-
That all the words down to "and" be omitted, with a view to the insertion in lieu thereof of the following:- 35
"Nothing in this Constitution [start page 1776] shall be held to empower the Commonwealth to require
any religious test as a qualification for any office of public trust under the Commonwealth."
I do not oppose the earlier part of the clause on the same ground as I put before, because I am satisfied in
regard to those matters, to which attention was directed when clause 109 was under discussion, that under the
ordinary operation of the common law any inhumanities and cruelties could be effectually stopped. 40
Again; the warning of Barton;-

It referred to the grants to the planters and to those who had taken up the plantations in America, as well as to
the charters and enactments under which they were governed. The court referred to all those things, and to
every piece of paper on which it could lay its hands, for the purpose of deciding that the United States was a 45
religious nation, and inasmuch as these expressions, which were dug up by the court in grants, were used as
much under a Catholic as under a Protestant regime, but under no other regime, they then decided that the

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United States were not only a religious nation, but also a Christian nation. Now, I think that those matters
are better left in the hands of the states.

JUDGE5
MURPHY J. 5
3. The plaintiffs' principal contention is that the challenged legislation is invalid in so far as it provides for
financial aid to non-government schools. (at p620)

4. Almost all the non-government schools are what are known as "church" or "denominational" or in the
United States, "sectarian" or "parochial" schools. All these have a religious element. The general picture is 10
that as well as secular instruction each of the church schools engages in instruction in its particular religion
and engages in religious observances and worship. Most of the buildings are adorned with religious symbols.
The churches to which the schools are related exercise varying degrees of supervision over the conduct of the
schools. The recipients of the moneys channelled through the challenged Acts are churches associated with
the different religions. There was strong contention between the plaintiffs and the defendants over the extent 15
and degree of the religious element, although in the end, much was agreed. My legal conclusions do not
depend on any difference between the opposing factual claims. (at p620)

And
9. The Commonwealth Government contended that s. 116 did not apply to grants or conditions on grants 20
under s. 96, nor to appropriation laws under s. 81 of the Constitution. It asserted that Parliament could under
s. 96 grant say a hundred million dollars to the States on the condition that the money was used "for
establishing a religion" and could, under s. 81 of the Constitution, appropriate moneys directly for the
building of a cathedral, or for the propagation of religious tracts, free of any prohibition in s. 116. I would
reject these propositions. (at p621) 25

Again;
Mr. REID.-I suppose that money could not be paid to any church under this Constitution? 30

Murphy was correct in that regard but as shown below Treasurer Peter Costello nevertheless did
give a multimillion dollar donation to the Catholic Church in Melbourne! 35

10. Latham C.J. said in Adelaide Company of Jehovah's Witnesses Inc. v. The Commonwealth
(1943) 67 CLR 116, at p 123 :
"Section 116 is a general prohibition applying to all laws, under whatever power those laws may be made.
It is an overriding provision. It does not compete with other provisions of the Constitution so that the Court 40
should seek to reconcile it with other provisions. It prevails over and limits all provisions which give power to
make laws.
Accordingly no law can escape the application of s. 116 simply because it is a law which can be justified
under ss. 51 or 52, or under some other legislative power. All the legislative powers of the Commonwealth
are subject to the condition which s. 116 imposes." 45
McTiernan J. said (1943) 67 CLR, at p 156 : "Section 116 imposes a restriction on all the legislative powers
of the Parliament." (at p621)

Yet, as shown above, somehow the framers viewed that Section 51(xxvi) about coloured racers
stood apart. This, even so it would also affect every Australian national of that particular race! 50
Somehow the framers were confused in that regard as to the full extend of the application of
Section 116 of the Constitution. In my view, Section 51(xxvi) would be in the same position as
other provisions that Section 116 was overriding all matters. Subsection 51(xxxv) would make
no sense if the Framers of the Constitution intended a meaning to subsection 51(xx) as now
fabricated to it by the High Court of Australia, hence the High Court judgment must fail! 55

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Section 96 is meaningless without any legislative powers within Section 51 and 52, as there must
be an Appropriation bill to provide constitutional power to take monies from the consolidated
Revenue, and as such Section 96 remains in that regard also subject to Section 116.

18. "Non-preferential" sponsoring of or aiding religion is still "establishing" religion. In the nineteenth 5
century "establishment" was not restricted to sponsorship of or aid to one church or religion, although such
sponsorship or support was of course referred to as establishment. It was also understood to include
sponsorship or support of all churches, and was referred to as indiscriminate establishment. In The State and
its Relations with the Church Gladstone stated that "The Australian colonies have most broadly avowed the
principle of indiscriminate establishment". 10
He described endowment of Roman Catholic chaplains and ministers as "state establishment of the Roman
Catholic Church" and as part of this indiscriminate establishment (pp. 269-273). (at p624)
And
21. Douglas J. refers to this in his partial dissent in Tilton v. Richardson (1971) 403 US 672, at pp 695-696
(29 Law Ed 790, at pp 808-809) : 15
"Much is made of the need for public aid to church schools in light of their pressing fiscal problems. Dr
Eugene C. Blake of the Presbyterian Church, however, wrote in 1959:

'When one remembers that churches pay no inheritance tax (churches do not die), that churches may own
and operate business and be exempt from the 52 percent corporate income tax, and that real property used for 20
church purposes (which in some states are most generously construed) is tax exempt, it is not unreasonable to
prophesy that with reasonably prudent management, the churches ought to be able to control the whole
economy of the nation within the predictable future. That the growing wealth and property of the churches
was partially responsible for revolutionary expropriations of church property in England in the sixteenth
century, in France in the eighteenth century, in Italy in the nineteenth century, and in Mexico, Russia, 25
Czechoslovakia and Hungary (to name a few examples) in the twentieth century, seems self-evident.
A government with mounting tax problems cannot be expected to keep its hands off the wealth of a rich
church forever. That such a revolution is always accompanied by anticlericalism and atheism should not be
surprising.'
The mounting wealth of the churches makes ironic their incessant demands on the public treasury. I said 30
in my dissent in Walz v. Tax Commission of New York (1970) 397 US 664, AT P 714 (25 Law Ed 2d 697, at
p 727) : 'The religiously used real estate of the churches today constitutes a vast domain.
See M. Larson & C. Lowell, The Churches: Their Riches, Revenues, and Immunities (1969). Their assets
total over $141 billion and their annual income at least $22 billion. And the extent to which they are feeding
from the public trough in a variety of forms is alarming.'" (at p626) 35

22. In the United States, after deleterious consequences of aid to religion were observed in some of the states,
the architects of its Constitution determined to prevent repetion there of the unfortunate experience of other
countries by creating a 'wall of separation' between religion and State. (See J. Bryce, The American
Constitution (1888), vol.3, pp. 465-466.) (at p626) 40

As it was made clear (see my quotations above) that no power existed to fund Churches, then
neither can there be any kind of tax exemption or tax deduction in that regard.
I view, that tax deductions for donations to a church are unconstitutional as are the tax free
provisions in regard of churches. It might be one thing for the State to not want to charge any 45
kind of council rate charges, but it is another thing for the Commonwealth not to charge taxation
in the same manner as it would upon any other organization! While it might be to some extend
having a flow on to the finances of the church and its aid to the poor, that is another issue, as the
principle is that no kind of direct or indirect financial assistance ought to be provided by the
Commonwealth of Australia to any religion (so churches). What stops a religion to set up 50
schools with financial assistance of the Commonwealth and then sell them off?

We have currently an issue in our local area, where the local church (I am not a member of it) is
turning its land in to building flats, as to escalate its income, because of pressure of the American
based managers. Here we are, having a church to be free from taxes and rates only for the profits 55
to go overseas. We have now American churches entering the Australian domain, where we will
see a flood of donations untaxed being transferred to its American owners! Why should ordinary

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taxpayers end up compensating the sucking-of of untaxed moneys to another country, by them
having to pay more tax to compensate for the loss of taxation of the churches?
If churches were to be standing as any other tax paying identity, then unlikely would so much
money be flooding overseas untaxed! Therefore, we must take stock of it all and realise we
cannot have it our way as it may suit us today, but must consider the overall issue. No financial 5
funding for any Church means that neither this can be done indirectly by not charging taxation or
by giving tax deductions to those who are making a donation to a religious organization.
Again the Court Stated;
A reading of s. 116 that the prohibition against "any law for establishing any religion" does not prohibit a law
which sponsors or supports religions, but prohibits only laws for the setting up of a national church or 10
religion, or alternatively prohibits only preferential sponsorship or support of one or more religions, makes a
mockery of s. 116.
Yet, where the US has a simular clause the US Courts then held that any funding would be a
discrimination against non religious people and cannot be tolerated.
Due to the extensive material to set this out, and already having been the subject of successful 15
litigation by me and having been included in my book that was filed as evidence in my case for
the 19 July 2006 hearing further extensive set out therefore can be located in my 6-7-2007
published book;
INSPECTOR-RIKATI & What is the -Australian way of life- really?
A book on CD on Australians political, religious & other rights 20
ISBN 978-0-9751760-2-3 was ISBN 0-9751760-2-1
JUDGE7
WILSON J
33. In the case of s. 81, the defendants say that Appropriation Acts are not affected by s. 116. They are
financial, not regulative, laws. Reliance is placed upon passages in the reasons for judgment of Stephen J. and 25
Jacobs J. in Victoria v. The Commonwealth and Hayden (the A.A.P. Case) (1975) 134 CLR 338, at pp 386,
411 . So much may readily be conceded, yet just as in the A.A.P. Case the "purpose" of the appropriation was
to finance an executive activity of the Commonwealth for which there was no constitutional authority, so here
an appropriation may provide the occasion for review: cf. Mason J., A.A.P. Case (1975) 134 CLR, at pp 402-
404 . (at p651) 30

I state it again;


JUDGE7 40
WILSON J
41. If it seems remote from reality to be speaking in terms such as these about a constitutional provision, it
must be remembered that the eighty years that have elapsed since federation have witnessed a marked change
in the status and role of the church in the Australian community with a corresponding diminution of the sense
of authority that formerly attached to the ecclesiastical realm. (at p654) 45

This got absolutely nothing to do with it. A referendum could always be held to amend the
Constitution, if that is what is needed, but one cannot change the application of powers and
limitations and prohibitions of the Constitution as if this were so then we have no constitution at
all but some worthless document purporting to be a Constitution in the hands of those wielding 50
the power to enforce it as they pleases.

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42. Furthermore, it may be thought to be surprising that a prohibition of the kind that I have described was
included in the absence of any express legislative power whereby the Parliament could ever have pursued
such an objective. It may be that the explanation for any such incongruity is to be found in the chequered
history of the clause in the constitutional conventions in the eighteen-nineties, and in an anxiety lest an
inference of power was to be drawn from the acknowledgment of Almighty God in the preamble to the 5
Commonwealth of Australia Constitution Act. While on present authority it is not permissible to seek the
meaning of s. 116 in the convention debates, I may say that I find it interesting that in the course of the
conventions the religion clause began as a denial of power to the States, then was re-addressed to both the
States and the Commonwealth, and finally took its present form.
The separationist view of establishment, for which the plaintiffs contend, does not sit well with the form of s. 10
116, addressed as it is only to the Commonwealth Parliament. The objective sought to be achieved by a clause
construed consistently with the plaintiffs' contention could so easily be subverted by any of the State
legislatures, which remain free to give such aid or support to religious bodies as they wished. But no State
legislature could establish a national religion, and hence the prohibition was rightly directed to the
Commonwealth. It will also be recalled that the 1898 Convention was invited to adopt a form of words for the 15
religion clause which would have placed the present issue beyond doubt, when an amendment from Tasmania
to the effect that the clause include the words "nor appropriate any portion of its property for the propagation
or support of any religion" was proposed and defeated.
Be these things as they may, I believe it would be wrong to attach undue significance to the history of the
clause. The actual words of the text supply the only firm ground on which to base a conlusion. (at p654)! 20

Again;
While on present authority it is not permissible to seek the meaning of s. 116 in the
convention debates,
25
Yet, then goes into referring to it all, just not disclosing;
(Again)
Mr. REID.-I suppose that money could not be paid to any church under this Constitution? 30

This would clearly have addressed the issue! See also the Mr Wise statement!
35
On 50 Wilson J then refers to Section 96 and the usage of it, as stated in past decisions, even the
Privy Council, but again Barton made it very clear there was no constitutional powers to grant
monies for any church, and therefore Section 96 must not be used to circumvent it. albeit, it
appears to me that Section 96 was added after the Constitutional Convention Debates was
concluded., this cannot alter one of iota what Barton made clear, that there is no constitutional 40
powers for the Commonwealth of Australia to fund churches. Section 96 can do no more but
provide for grants which are within existing constitutional powers.
Say the armed forces causing damages to road ways of a rural town. The Commonwealth of
Australia could then utilize Section 96 to make a grand to compensate for damages, or to make a
grand to upgrade a road for purpose of heavy armoured vehicles using it subsequently, etc. 45
Section 96 must not be perceived to be some kind of power that could override Section 51 and
52!
As Barton made clear, the Commonwealth of Australia could only exercise powers specifically
given, and hence Section 96 grants must be within this format!
50
The breadwinner issue (On a lighter note!);

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Mr. GLYNN.-I would not raise the objection if I were not prepared to offer a solution. I mentioned before
that the difficulty of distributing the surplus could be got over by averaging the proportion of females and
children to males in all the colonies. I cannot see any objection to that.
Mr. MCMILLAN.-It would be expensive.
Mr. GLYNN.-There may be some humour in that, but I do not see it. 5
Mr. REID.-It is not meant for humour.
Mr. GLYNN.-The statistics show the proportion of males to females and children. You would then take the
average proportion for the whole Commonwealth, and you could strike an average on that for each state. All
you have to do is to allot the surplus according to the average proportion of males to females and children.
Mr. MCMILLAN.-Would it not be better to equalize matters by the importation of females? 10
Mr. GLYNN.-I see there is a little humour oozing out after all in a matter that lends itself to it, but I shall
refrain from taking notice of it, notwithstanding my nationality. If that would be a fair basis for distributing a
surplus, it would also be fair in the allotment of the expenditure. The difficulty in Western Australia is that the
families are not in Western Australia, but in Victoria, and in other colonies, whilst the bread-winners are in
Western Australia. If what I propose be carried out, there would be an additional benefit, because Western 15
Australia would get a larger portion of the surplus in respect of people now living in the other colonies.
Sir JOHN FORREST.-How could you arrive at the number of bread-winners who are in Western
Australia?
Mr. GLYNN.-It could be ascertained easily from the statistics or the census. An average could be arrived at
for the whole of the five colonies, and on that average the allotment could be made. Honorable members may 20
not see the point of what I am urging, but it ought to be very carefully considered. All that you have to do is to
allow the same proportion of females and children to males in Western Australia as actually exists in the other
colonies. If you do that, the allotment of the surplus per capita cannot possibly injure Western Australia.
Mr. SOLOMON.-If that were the only cause of discrepancy it would be all right, but that is not the case.
Mr. GLYNN.-That is the chief obstacle to a per capita distribution of the surplus. 25
Mr. SOLOMON.-Not at all; there is the question of wages, which are 100 percent. higher than in the other
colonies, and therefore the spending power is greater.
Mr. GLYNN.-That affects production.
Mr. SOLOMON.-It affects the revenue.
Mr. GLYNN.-Decidedly; but it does not matter what the revenue is, it has to be paid whether the 30
population is 160,000 or 260,000, and is not revenue on a per capita basis. I am dealing with the allotment of
the surplus and its distribution on a per capita principle. Although the bread-winners reside in Western
Australia, many of their families do not, and the discrepancy could be got over in the way I mention.

Confusion at the Constitution Convention about taxation raising powers! 35

Mr. SOLOMON.-I do not propose to give the Federal Parliament power to raise revenue by direct taxation,
and I do, not think the Convention does. 40
Mr. SYMON-.Oh, yes.

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Mr. SOLOMON.-The sub-section in clause 52 has never been put before our people as a mode of taxation
for revenue purposes.
Mr. SYMON.-Oh yes, it has.
Mr. SOLOMON.-I do not know that. It has always been put before the people as a provision which was
only to be used in case of difficulty. 5
The CHAIRMAN.-Does the honorable member think he is in order in discussing clause 52, which we have
passed?
[start page 1059]
Mr. SOLOMON.-Inasmuch as that clause is intended to be recommitted, and as I myself propose to ask for
its recommittal, if no other honorable member does, I think I am in order in referring to it while discussing the 10
question now before the Chair.
The CHAIRMAN.-When clause 52 is recommitted will be the proper time to discuss it.
Mr. SOLOMON.-With all due deference to you, Mr. Chairman, I think I am absolutely in order, seeing
that clause 52 has a bearing on this question, and is within the lines of the present discussion. However, I do
not intend to keep the Convention any longer. I recognise that there is a very great difficulty to be overcome-I 15
recognise that the guarantee that each state shall receive a revenue equal, or nearly equal, to the revenue
realized now, is necessary to recommend this Constitution to a large section of our people, and recognising
that fact, I venture to think that the little time I have occupied in discussing this question has not been
misspent.
Mr. FRASER.-
The Bill provides that half of the senators go to their constituents every three years, and that the members of
the other House shall be elected every three years, or probably at shorter intervals.
25
Every 3-years is that the maximum election date is to be 3 years from the previous election!
As indicated in my book on CD, INSPECTOR-RIKATI on CITIZENSHIP, there is no such
thing as a care taking Government beyond the 3-years! All powers seize to exist, including
taxation! Elections for Senators are held within the expiry date of the 3-year period of a Senator
sitting, and the true intention of the framers was that likewise, an election for becoming a 30
Member of the House of Representatives would be within 3-years of the last election! This
would mean that at maximum after two subsequent elections Senate and house of Representative
elections would have to be head in the same period, if they followed a Double Dissolution
election six years earlier. Not, that the House of Representatives sit for 3-years and then the
federal executive continues as a care taking government for another period of time as elections 35
are held after the 3-year conclusion.
For the record, proper reading of the Constitutional Convention Debates indicate that After the
3-year period of the House sitting, all constitutional powers seize to exist. As such, the care
taking powers of the federal executive can only be allowed for the remainder of the 3-year period
and no longer. It cannot enforce any taxation or other laws beyond the 3-year period without 40
having a new Parliament sitting! There must always be a Parliament, sitting or in recess! It is the
parliament that provides for the right of maintaining laws, the Federal Executive no more but can
act to execute the laws. Regrettably, it is a bit confusing how the framers discuss matters, as they
also argue that the 3-year period is from the first sitting of the new Parliament. This seems to
indicate that therefore the 3-year period is from when ever an election is held. However, this 45
would not facilitate for the two three year periods of the House of Representatives to sit during

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the six year term of the Senate. Basically, say the Election after a Double Dissolution is held and
the Parliament sits on 10 February 2005 for the first time. Then taking that each and every House
of Representatives were to sit the full term, then each and subsequent election would be held no
later and parliament to sit by no later then 10 February of three year cycles. When the House of
Representatives therefore is dissolved in, say, December, then this allow for a Care Taking 5
Government to exist up to 10 February the following year but not a day longer. This, as all
legislation would come to a halt if there is no Parliament as such in existence.
The current system to allow maximum 3-years and then artificially increase it with an extension
of election period, and then the first day of sitting is unconstitutional.
Again, INSPECTOR-RIKATI on CITIZENSHIP set this out in greater details. 10
Back to the issue of subsection 51(xx)

Mr. SYMON.-I do not think that it is necessary to frame a definition of "citizen." A citizen is one who 15
is entitled to the immunities of citizenship. In short, a citizen is a 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. 20
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 corporation.
Mr. SYMON.-Well, in my opinion it should. I think, however, though I am not prepared to say definitely, 25
that other provisions in the Constitution would deal with that case. Clause 52 provides that we are to have
uniformity, and I think would prevent any difficulty in regard to corporations, quite apart from the question of
the meaning of the word "citizen." But if you ask me whether a corporation might not come within the
definition of "citizen" to a certain extent-not, of course, in regard to the right of the voting and so on-I
should say that it would. The difficulty is one that requires to be met. Although I admit that the amended 30
American Constitution goes further than anything we require, and is directed to a particular and special
condition of things, this provision seems to me absolutely essential, and, in my opinion, the
Constitution would be incomplete without it.
The basic understanding I have from the Constitution Convention Debates is that the
registrations and general conduct of how corporations are set up is what was the issue for giving 35
constitutional powers to regulate them, albeit not to exclude or otherwise deny them to operate
within the Commonwealth of Australia, even so this latter seems to be done anyhow. Nothing
was there even remotely to suggest that it was to deal with how people were employed by such
corporations and indeed, considering other statements made by the Framers it is clear that
Industrial Relations matters within state borders are and remain for the State to legislate. 40

Below extensive quotations of the Hansard about throughout the Commonwealth, equality of
trade, etc.

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Amendment suggested by the Legislative Assembly of Western Australia.
Line 3, omit "throughout the Commonwealth," insert "between the states."
Mr. ISAACS (Victoria).-Honorable members will recollect that when in Adelaide I placed considerable 5
importance upon the necessity of altering the wording of this clause. I drew attention to its enormously wide
verbiage, and to the dangers which I considered attended its adoption in its present form. I pointed out that the
term "trade and intercourse" included everything relating to commerce and trade-taxes, licences of all kinds,
publicans' licences, auctioneers' licences, hawkers' licences, municipal licences. It is in consequence of the
almost unlimited meaning attaching to these words in the United States Constitution that the Supreme Court 10
there exercises such unbounded control over the subject. I am not going to repeat in detail what I said in
Adelaide, because honorable members will find it in the report of the debate. But I wish again to press the
matter upon the attention of the committee, and I have to state, with a good deal of pleasure, that Sir Samuel
Griffith, in his able paper upon the question, has drawn attention to the same point. His observations upon the
subject are these:- 15
I venture, before passing from this subject, to suggest a doubt whether the words of section 89 (which are the
same as in the Draft Bill of 1891) are, in their modern sense, quite apt to express the meaning intended to be
conveyed. It is, clearly, not proposed to interfere with the internal regulation of trade by means of licences,
nor to prevent the imposition of reasonable rates on state railways. I apprehend that the real meaning is that
the free course of trade and commerce between different parts of the Commonwealth is not to be restricted or 20
interfered with by any taxes, charges, or imposts. Would it not be better to use these or similar words?
He then considers what should be done if it is intended to include interference with the railway rates. I
should like to point out why the danger of the expression to which I have drawn attention is so very great. The
words "trade and intercourse" are almost unbounded in their meaning when you apply them to the relations of
trade and commerce, and, under the proper heads, Baker's Annotated Constitution is full of instances showing 25
how far-reaching these words are. Then, take the words "throughout the Commonwealth." The meaning
of those words is not restricted to between the states; they refer to every part of the Commonwealth,
and I would refer honorable members to earlier portions of the Bill where the same meaning will have
to be given to them. If honorable members will turn to clause 52, which deals with the powers of the
Parliament, they will find that in sub-section (2) the Federal Parliament is empowered to legislate in regard to 30
customs, excise, and bounties, which shall be uniform "throughout the Commonwealth." That is, within every
state and every part of a state. "Throughout the Commonwealth" is the largest expression that can be used. 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. In clause 89 we find the same words again, and there can be no 35
reasonable doubt that their meaning is the same in one clause as in all. Clause 89 provides that all trade and
intercourse of every kind throughout the Commonwealth, whether by means of internal [start page 1015]
carriage or ocean navigation, shall be absolutely free. Free of what? Free of everything.
Mr. LYNE.-Not free of freight charges.
Mr. ISAACS.-No. They are charges for services. The clause means that the Commonwealth is not to put 40
a restriction upon trade in any way whatever, not merely by means of customs or excise duties, but you are
to leave every person absolutely free of any limitation of his common law right of carrying on his trade.
As I have said, Sir Samuel Griffith has pointed that out again, and I do think we shall be taking a wrong
course if we leave so important a matter in doubt. It is very important, even at the present time,
because it means in licence-fees alone some 350,000. 45
Mr. LYNE.-Why do you say licence fees?
Mr. ISAACS.-Because that is trade and intercourse. If a man goes into an hotel and says-"I want to
purchase liquor from you," that is trade and intercourse. If the hotel-keeper is told that he must not sell the

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liquor unless he pays the licence-fee he will turn to this clause and say-"You have no right to charge me a
licence-fee."
Mr. LYNE.-Do not you give all these licence-fees to the local bodies.
Mr. ISAACS.-If that construction is possible under the clause there will be no power in the local body, the
state Parliament, or the Federal Parliament to authorize such a charge. 5
Mr. LYNE.-I quite see that; but it is a fact that you do give licence-fees to the local bodies.
Mr. ISAACS.-That may be so. It all depends on the law of the particular state.
Mr. OCONNOR.-Do not the words "whether by means of internal carriage or ocean navigation " restrict
the operation of the clause to transit?
Mr. ISAACS.-I should say not, and even if it did it would apply within the states to hawking. What we 10
want to do is to establish free-trade between the different parts of the Commonwealth, and I would press my
honorable friends to consider again the words of Sir Samuel Griffith.
An HONORABLE MEMBER.-What page?
Mr. ISAACS.-Page 354 of the Victorian Blue-book. I am perfectly willing to leave the matter to the
Drafting Committee. It is important now, and it will increase in importance as time goes on. We do not know 15
what questions may arise, and the meaning of the clause is bound to be tested almost on the first opportunity
in the Federal Court. We should be in a very sorry plight if a decision were given following the American
decisions which carried us much further than we anticipated, and there had to be a referendum of the states
and of the people to get the clause altered. We want to get inter-state freedom of trade, and I am sure that we
are capable of expressing that intention. I am willing to leave it to the Drafting Committee, but, as a basis, I 20
think Sir Samuel Griffith's words are very good.
Mr. BARTON (New South Wales).-I should not like, anxious as I am that the work of the Convention
should proceed, to see a step of this kind taken without the opinions of honorable members being ascertained
upon it. It is not a matter that can be disposed of at once. I admit that my honorable friend (Mr. Isaacs) has put
his contention with force, as he puts everything, but a great deal may be said in favour of the present form of 25
the clause. Whether the expression used is open to the danger of being construed so as to apply to matters
affecting the internal regulation of trade within the states is a point upon which I have not made up my mind,
and upon which I desire to preserve an open attitude. This term has remained in the draft from the beginning.
It is, I think, Sir Samuel Griffith's own term, although he offers some criticism upon it now, and it
corresponds with the uniformity provision, [start page 1016] as my honorable friend has pointed out, in clause 30
52. Then, again, looking at clause 95, the preference clause, the other expression is used. That clause contains
the words-
Any law or regulation made by the Commonwealth, or by any state, or by any authority constituted by the
Commonwealth, or by any state, having the effect of derogating from freedom of trade or commerce between
the different parts of the Commonwealth, shall be null and void. 35
Mr. ISAACS.-Would not that be almost sufficient in itself?
Mr. BARTON.-I want to put the matter judicially, and I admit that the existence of these words in clause
95 may somewhat strengthen the honorable member's contention. I was going to suggest, when the time
came, that clause 95 should be omitted in favour of a clause to read somewhat as follows:-
Any law or regulation of commerce or trade made by the Commonwealth, or by any state, giving a 40
preference to one state or any part thereof over another state, or any part thereof, shall be null and void.
I think that that would be rather in accord with the view the honorable member has put.

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Mr. ISAACS.-That raises a much larger question-that of railways.
Mr. BARTON.-No doubt; and that is a matter that will have to be discussed. I express my anxiety that this
question should be the subject of some discussion, because it is of such supreme importance. Looking at it
fairly, my views are rather in favour of Mr. Isaacs' contention. There might be greater safety in adopting some
provision of the kind he suggests. We ought to be very chary about adopting any provision that would 5
interfere with any internal regulations that do not pertain to trade and commerce. The regulation of trade or
commerce specified in subsection (1) of clause 52 is with foreign countries, and among the several states. It is
therefore defined in the first subsection as inter-state commerce. The question is whether we should consent
to a form of words remaining in this clause which might have the effect of extending the operation of inter-
state commerce to matters of internal regulation within a state which might be, in one sense, inimical or in 10
derogation of free-trade as practised in that state, but which it is not the purpose of the Constitution to
interfere with. Matters of internal regulation of trade, as long as they do not necessarily affect the commerce
between one state and another, are entirely under the cognisance of that particular state, and it is not the
purpose of any Federal Constitution to interfere with trade of that character. If we once grasp that fact, the
contention of my honorable and learned friend is again strengthened. I leave the matter now to be discussed, 15
and I am perfectly prepared to accept the general sense of the Convention. My inclination is in favour of Mr.
Isaacs' view.
Dr. QUICK (Victoria).-I am very glad to hear the tone in which the leader of the Convention received the
observations of my honorable friend (Mr. Isaacs), because, like himself, I have been considering these words
since the Adelaide meeting of the Convention. The more I consider them the greater weight I feel disposed to 20
attach to the honorable member's criticism. In order to express what is really intended, it would be better to
use the words "between the states" instead of the words "throughout the Commonwealth." The latter words
seem to be sufficiently comprehensive to include every locality within the Commonwealth, and they might be
construed to include a prohibition of auctioneers' and pedlars' licences. I am sure that no such thing is
intended. Whilst we are anxious to provide for absolute freedom of trade on the frontiers between the 25
colonies, there is no desire to interfere with the local regulation of trade once the packager, of goods, wares,
and merchandise have arrived within the state territory. It would certainly be inimical to the success of this
Constitution [start page 1017] if an impression got abroad that there was to be any prohibition of local
regulations, such as auctioneers' and pedlars' licences. These are reasonable regulations of trade upon the
arrival of goods, wares, and merchandise within the state territories. 30
Mr. MCMILLAN.-Is not the other expression more comprehensive?
Dr. QUICK.-It is too comprehensive. It follows the packages beyond the frontier. What you want to secure
is free passage across the frontier.
Mr. BARTON.-Free passage across the frontier and freedom from all preferences.
Dr. QUICK.-Yes; freedom from all preferences or obstructions. The danger is that the words "throughout the 35
Commonwealth" would attach restrictions or disabilities to the local authorities. The words "between the
states" seem to give expression to what is intended. We should not leave room for doubt hereafter. I therefore
support the suggestion made by the Attorney-General of Victoria, and I am pleased to notice the tone in
which it has been received by the leader of the Convention.
Mr. GLYNN (South Australia).-I desire to call attention to the fact that in Canada the provision is "the 40
regulation of trade and commerce." That comes closer to the spirit of clause 89, and it appears in the section
in the Canadian Act which corresponds with clause 52 in this Bill.
Mr. BARTON.-Clause 52 says, the regulation of trade and commerce with foreign countries and among the
several states.
Mr. GLYNN.-The Canadian Constitution stops short at the word "commerce," and may mean any part of 45
the Dominion of Canada. In Wheeler's book on the Confederation of Canada a number of decisions are given
as to the effect of this provision. One of them was that a local licence which amounted to prohibition of trade
was illegal. That throws considerable light on the meaning of clause 89 in our Bill. In America the provision
applies to the regulation of trade between the various states, and under that it was held that it was quite

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competent for a state to make trade regulations between the different parts of its own territory. It we fall back
on the American system, we may put it in the power of one colony to, grant trade concessions that may
derogate from the freedom of trade between the various states. As between one part of New South Wales and
another, concessions might be granted on traffic, although the goods did not cross the border. These
concessions would have the same effect as if they extended beyond the border, because they might apply over 5
a considerable distance, and only cease at a point within 2 or 3 miles from the border.
Mr. OCONNOR (New South Wales).-I think that the object of this clause is clearly only to infer that there
shall be no duties of customs, or charges of that character, upon the transit of goods from one state to another.
I do not think it means anything more than that. I quite agree with the criticisms of Mr. Isaacs as to the
generality of the clause. I have read the valuable criticism of Sir Samuel Griffith, and it appears to me that we 10
might very well adopt something in the nature of his suggestion as to defining the meaning of this sub-
section. That is, we might use some such words as "the free course of trade and commerce between different
parts of the Commonwealth is not to be restricted or interfered with by any taxes, charges, or imposts."
And
Sir JOHN DOWNER.-I cannot foresee. I cannot pretend to have the gift of prescience which would 15
enable me to know how ultimately a coach and four may be driven through this Constitution. But I say
let those who want limitations propose their insertion in the Bill. I would prefer to leave the main enactment
in this clause exactly as it stands. It may be that the words of Sir Samuel Griffith represent all he can think of.
Perhaps they may represent all that can be wanted at any time; but it is just possible that something may be
omitted from them something which might derogate from this freedom of trade which we intend to have 20
throughout the Commonwealth, Then, I ask honorable members to consider this: Although the clause
says that trade and intercourse throughout the Commonwealth shall be absolutely free, you have to
look through this Constitution at the other provisions, which show clearly what is the intention. This is
a broad central declaration; the rest you gather from a perusal of other provisions of the Bill. I think the fears
of Mr. Isaacs in the particulars he mentioned are not well founded. 25
Mr. HIGGINS.-There was no occasion for this clause in the Constitution of the United States.
Sir JOHN DOWNER.-No; but many times during the discussion of this Bill we have been referred to this
clause as being a strong clause-a clause strengthening this Constitution as compared with the Constitution of
the United States. Because it is in this Constitution, and it is not contained in the Constitution of the United
States, this clause has been referred [start page 1019] to over and over again as one of the broad declarations 30
clearly made in this Constitution, but which has got to be inferred from the Constitution of the United States.
It is a broad declaration that was necessary for the foundation of the Bill, and which makes any
superstructure that may be built upon it absolutely safe and secure. I hope that, on consideration, this
clause will be allowed to stand as it is. If limitations are necessary, let them be put in as limitations, but let the
broad declaration in this clause remain. 35
Mr. DEAKIN (Victoria).-I think it is fortunate that we have had the advantage of hearing one of the
legal members of the Convention say all that possibly can be said in support of the terminology of this
clause. The vagueness of the reasons offered by the honorable member who has objected to the
proposed amendment, on the ground that we do not know what may happen, should be noted. He is not
able to point to anything that would happen which would not be met by the proposed amendment. It is 40
ample to meet the case. Perhaps the honorable member was not present when the leader of the Convention
called attention to the fact-and it appeared to me a final answer to all his objections-that this clause requires to
be read with clause 95, and that, taken together, they afford complete protection against any possible
interference with freedom of trade and intercourse. Clause 95 puts an absolute prohibition on anti-federal
action by any state, and might be considered in itself ample for all requirements. It sets forth that- 45
Any law or regulation made by the Commonwealth, or by any state, or by any authority constituted
by the Commonwealth, or by any state, having the effect of derogating from freedom of trade or
commerce between the different parts of the Commonwealth shall be null and void.
That in itself, it appears to me, is ample for all requirements. At the same time, to meet the view, which the
honorable member very reasonably expressed, that in this Constitution we should put beyond all doubt a 50
prohibition that is a matter of inference and construction in the American Constitution, we add, in addition to

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clause 95, this provision. With the verbal amendment suggested nothing is withdrawn from the force
and efficacy of the clause as it stands. This clause will put beyond all question the determination of this
Convention, and of the future Constitution, that trade and intercourse in all parts of this
Commonwealth shall be absolutely free. And that end being attained by the amendment, what need
have we to go beyond that, as evidently we do, by using words in this connexion which elsewhere in the 5
Bill are used with a wider jurisdiction? Why use a vague expression which may possibly seriously
interfere with state administration in some minor departments, which have been up to now, and always
will be, expressly left to the states?
And
Dr. COCKBURN (South Australia).-Quite apart from the question of trade between state and state, is it not 10
necessary that the Commonwealth itself should have some power for the restriction and the regulation of
trade? The words "absolutely free" are infinite in their application, and they seem to me to take away from the
Commonwealth the power to restrict and regulate trade within the confines of the Commonwealth.
Mr. DEAKIN.-We are not at those words yet; we are considering the words throughout the
Commonwealth." 15
Dr. COCKBURN.-But the whole clause is before the committee, and it goes a great deal further than any
of its advocates clearly intend. I support the remarks of Mr. Isaacs in urging that some such limitation should
be inserted, not only with the view of seeing that the clause goes no further than is desirable in the restriction
of the states, but also in order that it shall not tie the hands of the Commonwealth itself, but shall allow it to
impose such restrictions and regulations of trade throughout the Commonwealth as may, from time to time, in 20
the interests of the people, appear to be necessary.
Mr. BARTON (New South Wales).-In answer to my right honorable friend (Sir Edward Braddon), I have
no hesitation in expressing my opinion. I thought I had expressed it clearly before. There is at any rate the
possibility, even taking this clause with other parts of the Bill, that it might be so read as to interfere
with a state's own right of regulating that kind of internal trade which is quite unconnected with 25
interstate commerce. It is for that reason that I thought there was so much force in the remarks of Mr.
Isaacs. I should not like to be taken to concur in any suggestion that it is intended that there shall be
any power in the Commonwealth to restrict trade in any part of the Commonwealth. I think it should
be laid down in terms which no Parliament can over-ride that there shall be absolute unrestricted trade
between all parts of the Commonwealth. 30
Mr. ISAACS.-Does the leader of the Convention propose to take the sense of the committee upon the
substance of the words-that the words "throughout the Commonwealth" be left out, and that the words
"between the states" be inserted-leaving it to the Drafting Committee to redraft the clause afterwards?
Mr. BARTON.-Yes; I will take the vote of the committee upon that matter.
The amendment suggested by the Legislative Assembly of Western Australia, to strike out the words 35
"throughout the Commonwealth" and to substitute the words "between the states" was agreed to.

While on the one hand the Framers were very concerned that laws enacted by the commonwealth
would be throughout the Commonwealth equally applicable on the other hand they also
made clear that other then directly relating to trade and commence they did not want the 40
Commonwealth to interfere with trading and commerce within a State. A similar approach has to
be taken with companies, that albeit the Commonwealth may legislate for the structure of
companies, it is another matter to purport constitutional powers being used within this as if
companies legislative powers can override the objection the Framers had for the Commonwealth
to interfere with Industrial disputed within the borders of one State. 45
It also ought to be noted that the Framers warn against the courts to interpret the constitution as
to the US constitutional framework, which they made clear they didnt want to be applied. Yet,
far too often the High Court of Australia precisely does this!

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Mr. BARTON.-No. If they find that a rate is deliberately fixed low, not for the mere purpose of internal
development, on the ordinary principle of diminishing the rate in proportion to the length of traction, but of 5
wrongfully preventing [start page 1251] inter-state commerce from taking its ordinary course, the allowance
of that rate is a matter which they can consider. A decision which says that they cannot interfere with a rate
because it is low is not a decision which abnegates their constant duty to prevent preferences between the
states. I do not think any decision can be found which will negative that view. Under the clause as it stands,
the prohibition of preferences extends only from the ports of one state to the ports of another state. If it is 10
wrong to give a preference to the ports of one state over the ports of another state, it is equally wrong to give a
preference to a part of a state over a part of another state. I have endeavoured to correct that anomaly. On the
other hand, the second part of the clause, making void any law or regulation made by the Commonwealth or
by any state, or by any authority constituted by the Commonwealth or by any state, having the effect of
derogating from freedom of trade or commerce between the different parts of the Commonwealth, may mean 15
more than the Convention intends. At the instance of the Hon. Mr. Isaacs we amended clause 89 to make it
read that on the imposition of uniform duties trade and commerce, whether by intercolonial carriage or ocean
navigation, between the states should be absolutely free. The words used before were "throughout the
Commonwealth." What we desire to protect is inter-state trade, and we recognise that the internal
regulation of trade must be left in the hands of the individual states. That is a principle on which we are 20
agreed.

Mr. BARTON.- 25
I do not think we need go further than that, because the provisions of the Bill are ample to sufficiently
guarantee the rights of the states. Every state will have full control over its traffic, except to the extent
that it will not be able to usurp the powers of the Commonwealth in respect to trade and commerce.
And are we going to allow those powers to be usurped? That question, I am sure, would meet with a direct
negative all round. But if we go further and put in a limitation or proviso, we are simply increasing the power 30
of a state to usurp that power of regulating trade and commerce, which should be confined to the Parliament
of the Commonwealth. For it is only by that authority that trade and commerce can be kept free and equal. I
suggest, therefore, that the amendment which I have outlined may be placed in this Bill. Sir John Downer
agrees with me that the trade and commerce clause is quite sufficient for the purpose, but he would insert a
few words to inform the public. I meet that argument again by asking whether it is not a danger to insert such 35
words when they may alter the entire legal construction of the Constitution? I suggest simply inserting such a
provision as I have suggested to prevent the Commonwealth from dealing by way of preference with any state
or part of a state, and that we should leave the Constitution in that respect in the same way as we have left it
by saying that taxation shall be uniform and equal throughout the Commonwealth.
Mr. GORDON (South Australia).-I think the best argument we could have for inserting in the Bill what my 40
honorable and learned friend calls a placard is supplied by the long and legal speech which he has just
delivered to show us that it is not necessary.
[start page 1325]
Mr. BARTON.-My speech was not so long as that of the honorable and learned member.
Mr. GORDON.-Then I will call it a little more laboured. 45
Mr. BARTON.-Everything is easy to my honorable friend.
Mr. GORDON.-I think that the honorable and learned member has shut his eyes to the fact that the
circumstances of these colonies, so far as the railways are concerned, are different from the circumstances of
the American colonies when they federated.

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Mr. BARTON.-Perhaps my honorable and learned friend would prefer to answer me after the tea
adjournment.
And
Mr. TRENWITH.-Well, we are a present fighting as independent states. That is to say, we are doing our
best for our respective states-for the states we have the responsibility of managing. We are not at present 5
united. But we are actuated by the federal spirit, and claim that immense advantages will come from the
adoption of free and unfettered intercourse between the various states of the Commonwealth. Can any one
say [start page 1346] that we have unfettered intercourse when you allow all the resources of a
powerful state to be devoted to attracting some of the trade within the Commonwealth from some
particular point to which that trade would otherwise go? If we are to have it, we must be permitted to 10
have it on fair and equal terms. We must not be expected to be content to juggle with the terms
"differential" and "preferential." We will not be content to see the interference with trade by one
system of rates permitted simply because those rates are called differential, and do not apply specially
to traffic coming from beyond the boundary of a colony, and a similar kind of interference prohibited
because it is brought about by rates termed "preferential." 15

The above quoted reasoning would make no sense at all if the Framers of the Constitution
purportedly had intended to give unlimited powers to the Commonwealth of Australia in regard
of subsection 51(xx), however, as can be noticed it was made clear that the subsection was to be
considered with other provisions of the Constitution. 20

Sub-section XV.-Banking, the incorporation of banks, and the issue of paper money.
Mr. ISAACS: Anticipating another subsection, I notice that insurance, including State insurance, is to be 25
dealt with by the federal authority. As regards banking, I believe in South Australia there is a State bank. It
will be a question to seriously consider whether the Commonwealth is to deal with purely private banks, and
not State banks. 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. But 30
where a State Bank carries on business purely in its own State, I desire to know why that should come under
the operation of the Commonwealth?
Dr. COCKBURN: I am glad that this matter has been called attention to. It is a very serious one to those
colonies which want to go ahead.
Mr. GLYNN: How is that? 35
Dr. COCKBURN: Because the federal authority may take the power out of the hands of a State to carry on
the business of banking. This would be a concurrent power, and in its exercise in such a matter as the issue of
notes, for instance, it would be very easy for the Federal Parliament by implication to compel any State to
discontinue it. It [start page 779] might also explicitly forbid the States to undertake it. A hostile majority in
the Federal Parliament, which might be Conservative, might readily do this. The exercise of concurrent 40
powers is a difficult question in a Federation. We should carefully scrutinise this power before giving it over
to the federal authority.
Sub-section as read agreed to.
Sub-section XVI.-Insurance, including State insurance extending beyond the limits of the State
concerned. 45
Mr. HIGGINS: I desire to understand whether by the word "State" here is meant a particular colony, or is
it used in the general sense-the State as distinct from the individual? I apprehend that the word "State" means
a particular colony, but I confess I do not understand the meaning of the term.

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Mr. O'CONNOR: This is a new subsection. It proposes to include insurance, and I think it is a very
desirable inclusion amongst the list of powers. However, it involves a principle. The part the hon. member
referred to is for this purpose: It was suggested that colonies might undertake State insurance, as was done in
New Zealand, and it was held that State insurance should not come under the general laws. From that view I
entirely dissent; but this clause was drawn in accordance with the views of the Constitutional Committee. The 5
hon. member will see, therefore, that the words "State insurance" simply indicate that whereas a State within
its own boundaries should have control of all its insurance business, and the regulation of its insurance
under any State system, so far as it deals with the people within its own boundaries, any part of its system
that proposes to deal with people beyond its boundaries should come under the general laws. "State" is used
to designate colony. I should support the hon. member if be moved to strike out: 10
Including State insurance extending beyond the limits of the State concerned.
Mr. ISAACS: It would include all insurance then?
Mr. O'CONNOR: Yes; and I think it ought to. If a State chooses to go into the business of insurance-I do
not say it is wise or not-I do not see why any departure should be made as to the uniformity of laws with
regard to insurance. The State should be subject to the same limitations as the individual if it goes in for State 15
insurance. It would be absurd to say it should not. Supposing every State adopted a system of State
insurance, according to this exception each State would be able to adopt a different method, so long as
it kept within its own boundaries, and you might have five different Systems of insurance outside the
general law.
Mr. ISAACS: Is that not States rights? 20
Mr. O'CONNOR: No; because you start with the proposition that general insurance laws must be the
same throughout the colonies.
Again;
Supposing every State adopted a system of State insurance, according to this exception each State
would be able to adopt a different method, so long as it kept within its own boundaries, and you might 25
have five different Systems of insurance outside the general law.
And
No; because you start with the proposition that general insurance laws must be the same throughout
the colonies.
30
This clearly indicates that when the Framers of the Constitution were referring to state insurance
(as they did with banking, corporations, etc) they were referring to having the same
system/method as to the operation of insurance (banking/corporation and not at all as to, so
to say, bolts and nuts of workers being employed.
Now, if the High Court of Australia persist in that Subsection 51(xx) did in fact give all the 35
powers to the Commonwealth of Australia to dictate under corporation laws what can or cannot
be done, then it would clearly have also all the powers to dictate if Sunday newspapers could be
published or not, irrespective of any religion, as the State law for so far it would prohibit it would
be subordinate to Commonwealth legislation. Then the Framers of the Constitution must be
deemed to have not known what they were doing and perhaps they had done better to first seek 40
the counsel of the judges now at the High Court of Australia as they appear to know better what
the Framers of the Constitution intended. Otherwise, it must be accepted that the High Court of
Australia made one gigantic blunder in regard of subsection 51(xx) and should restore this matter
and basically send the 14-11-2006 judgment, so to say, to the scrap heap.
As the Framers of the Constitution made clear any religious conduct that was unacceptable to 45
society could be dealt with under criminal law of a State.

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We also find that the Framers of the Constitution make clear, time and again, that the
Constitution is different then that of the US Constitution, as such any judgment pertaining the US
Constitution may not necessary be applicable to the Australian Constitution. Yet, we find that
John Howard is stirring religious controversy such as seeking to incite Muslims to turn against
another Muslim because of comment the man made which John Howard seem to disapprove off. 5
Well, this Muslim-phobia (for the record I do not practice a religion and as such not to be
seen as a religious bias statement) should be stopped as the Framers of the Constitution made it
very clear that if a man is in breach of law then the ordinary Courts will deal with the matter. The
fact that John Howard perhaps might take it personally that someone may question the honesty of
certain people, and considering that the term lying rodent came from his own party member 10
and fellow Minister Senator Brandis then why on earth should a person using FREEDOM OF
SPEECH be used as to ster religious divisions whereas the murderous conduct of an
unconstitutional invasion somehow is not worthy to be dealt with.
In my view, we lack appropriately trained constitutional lawyers who can competently
comprehend certain constitutional powers and limitations, and so we lack properly trained 15
constitutional judges (including judges sitting at the bench of the High Court of Australia), and
by this it all has become an utter mess.
National Australasian Convention) (Chapter 33 of the CD)
20
The service and execution throughout the commonwealth of the civil and criminal
process and judgments of the courts of the states,

Not that there is a different kind of law enforcement pending if a person is deemed to be
unlawfully in the Commonwealth of Australia, regardless if the person is or isnt! 25

The Hon. R.E. O'CONNOR: A territory would be either a state of the commonwealth, or another
country! 30
The Hon. I.A. ISAACS: The word "country" might mean an independent state.
The Hon. E. BARTON: I will keep the matter in mind, though I fancy it is all right!
We also have to consider the error the High Court of Australia made in regard of Aboriginals and
how the Framers of the Constitution appeared to me to be blamed for denying them equal rights.
Just look at the con-job of the 1967 referendum that was arguable to give Aboriginals equal 35
rights. If one were to consider Kartinyeri v The Commonwealth [1998] HCA 22 (1 April 1998)
then the High Court of Australia appears to set out that the original version of the
Commonwealth of Australia Constitution (prior 1967 referendum) was bias against Aboriginals.
If anything, this just shows the failure of the judges to understand what the Constitution really
stands for! Sure, the Commonwealth passed in 1909 a law for white only electors arguing that 40
Section 30 of the Commonwealth of Australia Constitution gave that right, and the High Court
of Australia approved this and also later argued that Section 41 of the Constitution no longer was
a valid section as the people that were alive at the time of federation had died long ago and so the
application of this section 41, the truth is that again the High Court of Australia was giving utter
and sheer nonsense. 45
The Framers made clear that section 30 of the Constitution would be subject to Section 41!
Further, lets see what Barton stated at the closure of the Constitutional Convention!

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Mr. BARTON.-
5
This Bill also contains a provision in favour of electors, which is altogether absent from the Bill of 1891; that
is, a provision for the protection of the voting right, when the right has been granted, so that no adult person
who, at the establishment of this Constitution, or [start page 2468] at any time afterwards, acquires the
right to vote for the Legislative Assembly in his own colony or state can be deprived of that right by
any law passed by the Federal Parliament. 10

Did you notice the wording or at any time afterwards, acquires the right to vote
The Framers made all along clear that the Commonwealth would have no constitutional powers
to deny a elector of a State the political rights to vote in a federal election! As such, the right of
Aboriginals qualified to vote in State elections were secured! Now have a look at the application 15
of subsection 51(xxvi) by any kind of legislation in regard of Aboriginals since the 1967
referendum;

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.
Dr. QUICK.-That refers to special races.
Mr. BARTON.-But if he is under any disability under any regulation of the [start page 1787] 25
Commonwealth he would cease to be a citizen, however slight that disability might be. I doubt whether the
honorable member intends that. There is power by law to regulate the people of any race requiring special
laws. There may be some purely regulative law passed, not imposing any special restriction on any person of
that kind who may be a subject of the Queen. That regulation, if it were of the mildest character, under this
definition, would deprive him of his rights. 30
Dr. QUICK.-The regulation would have to specify the ground of disability.
Mr. BARTON.-Yes; but my honorable friend says not under any disability imposed by the Parliament.
Would not the difficulty be that if he were under any slight disability for regulative purposes, all his rights of
citizenship under the Commonwealth would be lost?
35
What is clear is, that the Aboriginals and so neither the entire electorate of the Commonwealth
were ever advised that any legislation in relation to Aboriginals would cause the loss of their
citizenship! So their political rights to be an elector to be a Member of Parliament!
It might be stated that subsection 51(xxvi) was intended to alien coloured race, as to control
their doings, such as chines gold mining in Victoria, the Afghans selling in Tasmania, etc, but 40
then the Commonwealth could only make laws applicable to the entire Commonwealth, not for a
particular State. What the Framers did, was referring to nationalities and upon that basis inserted
subsection 51(xxvi) of race and referring to nationalities as being a race! Afghans clearly is a
nationality identification, not a race. To the Framers, the identification of a nationality was
refereed to as being a race. Albeit, when dealing with Aboriginals, they sought to avoid this 45
confusion by excluding them of subsection 51(xxvi) as well as to protect the Aboriginal rights to

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be considered equally as other Australians. Not at all what Latham CJ purported to make out of it
as referred to above. Extensive reading does indicate that the Framers had misconceptions about
what a race stood for. It referred to Chinese, even those born in Australia and having
Australian nationality, to be Chinese. However, if it were to have related to a Chinese national
that was Caucasian then the Framers clearly didnt seem to apply this, as the body of their 5
debates seem to indicate. They had this white only racist attitude in general and as such their
references were to Afghans and Chinese but to coloured races, which signify that they were
basically against coloured races not a particular nationality, albeit they generally referred to
this. What was achieved with the 1967 referendum was that it removed the protection of
Aboriginals, and caused more harm then good, as set out in my books. Still, the problem existing 10
is that technically Aboriginals lost the right of citizenship, so their political rights! The
Commonwealth has no constitutional powers to grand State citizenship, or to interfere with it, but
could in effect deny Australian citizenship by invoking any legislation within subsection
51(xxvi) for any matter, as it then would cause AUTOMATICALLY the lost of Australian
citizenship. 15
It ought to be clear that Australian citizenship has got nothing to do with Australian nationality or
with naturalization. This to has been set out considerable before the High Court of Australia. The
Framers made clear that unlike the USA version, they didnt want to follow as the
Commonwealth would have no constitutional powers to define/declare citizenship!
20
Kartinyeri v The Commonwealth [1998] HCA 22 (1 April 1998)
1. Paragraph (xxvi), in its original form, should be understood in the context of attitudes to race and to "White
Australia" which were common amongst the settlers represented in the Conventions and constituting the
electors of the federating colonies. In the original draft Constitution Bill of 1891, the proposal was for a
grant of exclusive legislative power to the Federal Parliament with respect to[220]: 25
"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".
There is uncertainty as to the initial purpose of including this power and proposing that it be exclusive to 30
the Federal Parliament. The provision was Sir Samuel Griffith's idea[221], and it has been suggested[222]
that it was based upon the unhappy experiences of Queensland with "blackbirding". This was the practice
by which people from the Pacific Islands had been snatched from their homes and sold into a form of
slavery in the Queensland sugar farms. Whether its inclusion was out of a concern for the victims of such
activities, a desire to exclude the States from control over them or to provide the Federal Parliament with 35
powers, in addition to the proposed power over aliens, to deal with possible unrest and expulsion, is not
entirely clear. The Convention Debates, particularly those of the Melbourne Convention of 1898, show that
some delegates wanted to retain power for the States, and to permit the Federal Parliament to enact, laws
far from beneficial for people of minority races (such as Chinese in factories and shops[223], "Asiatic or
African ... miner[s]"[224] and so on). However, other delegates regarded the prospect of discriminatory 40
legislation on the part of the new federal polity as "disgraceful"[225] and "degrading to us and our
citizenship"[226].
2. As finally adopted, the power in par (xxvi) was not restricted, in terms, to securing the benefit or
advancement of the people of a given race. In the historical context of that time such protective purposes
would have been possible, eg in the case of the "kanakas" in Queensland. But so also would laws 45
detrimental to, or discriminatory against, such people. The exclusion from the paragraph of power with
respect to "the aboriginal race in any State" appears principally to have been designed to leave their
regulation to the States. It may have had the effect of protecting them from any risk of the misuse of the
race power by the new Federal Parliament[227]. This view of the exclusion of Aboriginals from the power
was to recur in the Parliamentary debates leading to the amendment of the Constitution in 1967. 50
Moves to enlarge federal powers for Aboriginals

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3. Before 1967, there was one earlier proposal to afford power to the Parliament to legislate with respect to
Aboriginals. Such a power was included in the 1944 "fourteen powers proposal"[228]. It failed to secure the
approval of the electors at referendum.
4. In 1959 a Constitutional Review Committee was established by the Parliament. One of the issues it
considered was whether the Federal Parliament should have an express power to make laws with respect to 5
Aboriginals. The Committee recommended the deletion of s 127 of the Constitution[229]. That section
provided that
"In reckoning the numbers of the people of the Commonwealth, or of a State or other part
of the Commonwealth, aboriginal natives shall not be counted."
However, the Committee reached no agreement on the grant of special legislative powers with respect to 10
Aboriginals[230]. In the result, a large number of petitions were presented to the Federal Parliament urging
the deletion of s 127 and the amendment of par (xxvi)[231]. Whatever the original intention of these
constitutional provisions, and whatever may have been the initial protective effect of the exclusion of
people of the Aboriginal race from the race power, by the late 1950s, both in and out of the Federal
Parliament, commentators were viewing ss 51(xxvi) and 127 (containing as they did the only references to 15
Australian Aboriginals in the Constitution) as negative and discriminatory, needing amendment.
5. In 1964, the Leader of the Opposition (Mr Calwell) introduced a measure for the alteration of the
Constitution to remove the exclusion of Aboriginals from par (xxvi) and to delete s 127[232]. He called
attention to possible United Nations criticism that the Constitution was "discriminating against" the
Aboriginal people[233]. The Federal Attorney-General (Mr Snedden) affirmed that all parliamentarians 20
felt that "there should be no discrimination against aboriginal natives of Australia"[234]. He warned
that the proposed change to par (xxvi) created the potential for "discrimination ... whether for or against the
aborigines"[235], in response to which Mr Calwell affirmed his view that the amendment would only be
beneficial for Aboriginal Australians[236]. The Bill was ultimately defeated.
6. In 1965, the Government introduced the Constitution Alteration (Repeal of Section 127) Bill 1965 (Cth). 25
The Prime Minister (Sir Robert Menzies) justified the exclusion of any amendment to par (xxvi) on the
ground that to include the Aboriginal people in the race power would not be in their best
interests[237]. However, although the Bill was passed by both Houses, the Government decided not to put
it to referendum.
7. In March 1966, Mr W C Wentworth (later the first Australian Minister for Aboriginal Affairs[238]) 30
introduced a Private Member's Bill[239] to amend the Constitution to substitute for the race power in
par (xxvi) a new provision[240]:
"The advancement of the aboriginal natives of the Commonwealth of Australia".
Mr Wentworth also proposed a new s 117A of the Constitution. This would forbid the Commonwealth
and the States from making or maintaining any law which subjected any person born or naturalised 35
within the Commonwealth "to any discrimination or disability within the Commonwealth by reason
of his racial origin". The proposal contained a proviso that the section should not operate "so as to
preclude the making of laws for the specific benefit of the aboriginal natives of the Commonwealth of
Australia"[241]. One of the reasons given by Mr Wentworth for his amendments was his concern that
the deletion of the exclusion of people of the Aboriginal race from par (xxvi) could leave them open to 40
"discrimination ... adverse or favourable". He suggested that the "power for favourable discrimination"
was needed; but that there should not be a "power for unfavourable discrimination"[242]. His Bill was
supported by the Opposition[243], but it ultimately lapsed[244].
The 1967 referendum
8. Instead, on 1 March 1967, a new Prime Minister (Mr Holt) introduced the Constitution Alteration 45
(Aboriginals) Bill 1967 (Cth). He explained that the government had been influenced by the "popular
impression" that the words "other than the aboriginal race in any State" in par (xxvi) "are
discriminatory"[245]. This was a view which the government believed to be erroneous. But it was deeply
rooted. It required amendment of the Constitution in a way that would give the Parliament the power to
make special laws for Aboriginals which, with cooperation with the States, would "secure the widest 50
measure of agreement with respect to Aboriginal advancement"[246].

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9. The Government's Bill was supported by the Leader of the Opposition (Mr Whitlam). He referred to the
many disadvantages which Australian Aboriginals had suffered and which needed positive federal
initiatives[247]. It was also supported by Mr Wentworth. He expressed the opinion that some
discrimination was necessary in relation to Aboriginals but "it should be favourable, not
unfavourable"[248]. The Bill passed through the House of Representatives without a single dissenting 5
vote[249].
10. In the Senate, the Minister responsible for the Bill (Senator Henty) repeated what had been said by the
Prime Minister[250]. The Leader of the Opposition in the Senate, Senator Murphy, met directly the
argument that the exclusion of Aboriginals from par (xxvi) had been intended to be beneficial for them. He
said[251]: 10
"The simple fact is that they are different from other persons and that they do need
special laws. They themselves believe that they need special laws. In this proposed
law there is no suggestion of any intended discrimination in respect of Aboriginals
except a discrimination in their favour."
The Bill was also approved by the Senate without a single dissenting vote[252]. 15
11. There having been no opposition within the Parliament to the proposed alterations to the Constitution, it
was necessary, in the procedures which followed, to prepare only the argument in favour of the proposed
law to be distributed in pamphlet form to the electors[253]. The case for the "yes" vote authorised by the
Prime Minister, the Leader of the Australian Country Party and the Leader of the Opposition addressed the
amendments to par (xxvi) and s 127 which were to be put before the electors as a single proposal. The case, 20
relevantly, argued[254]:
"The purposes of these proposed amendments ... are to remove any ground for the
belief that, as at present worded, the Constitution discriminates in some ways against
people of the Aboriginal race, and, at the same time, to make it possible for the
Commonwealth Parliament to make special laws for the people of the Aboriginal 25
race, wherever they may live, if the Commonwealth Parliament considers this
desirable or necessary. ... The Commonwealth's object will be to co-operate with the
States to ensure that together we act in the best interests of the Aboriginal people of
Australia".
In relation to the proposed amendment to s 127, the written case said[255]: 30
"Our personal sense of justice, our commonsense, and our international reputation
in a world in which racial issues are being highlighted every day, require that we get
rid of this out-moded provision ... The simple truth is that Section 127 is completely
out of harmony with our national attitudes and modern thinking. It has no place in
our Constitution in this age." 35
12. In addition to the foregoing statutory argument the leaders of all of the major Australian political parties
issued statements supporting the amendment to par (xxvi) and the repeal of s 127. The Prime Minister (Mr
Holt), in his statement said that it was not acceptable to the Australian people that the national Parliament
"should not have power to make special laws for the people of the Aboriginal race, where that is in their
best interests"[256]. For the Federal Opposition, Mr Whitlam stated that the then provisions of the 40
Constitution were "discriminatory". He pointed out the need to assist Aboriginal communities in the realms
of housing, education and health, and stated that the Commonwealth must "accept that responsibility on
behalf of Aboriginals". It was also vital, he argued, to remove the excuse "for Australia's failure to adopt
many international conventions affecting the welfare of Aborigines"[257]. For the Australian Country
Party, its Deputy Leader, Mr Anthony, explained that the amendment to the Constitution "would give the 45
Commonwealth Government, for the first time, power to make special laws for the benefit of the Aboriginal
people throughout Australia"[258]. For the Australian Democratic Labor Party, Senator Gair titled his
statement "End Discrimination - Vote 'Yes'" and explained that his Party had "adopted the slogan 'Vote
Yes for Aboriginal Rights'"[259]. There was not the slightest hint whatsoever in any of the substantial
referendum materials placed before this Court that what was proposed to the Australian electors was an 50
amendment to the Constitution to empower the Parliament to enact laws detrimental to, or discriminatory
against, the people of any race, still less the people of the Aboriginal race.

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13. The referendum was put on 27 May 1967. It was overwhelmingly approved[260]. In the history of
Australian constitutional referenda, no other such vote has come close to the unique political and popular
consensus demonstrated in the 1967 referendum on Aborigines.
Arguments for the validity of the impugned law
14. The Commonwealth disputed the relevance of any of the foregoing history. In its submission, the meaning 5
of par (xxvi) had to be found exclusively on the face of the Constitution in the language in which it was
expressed. At most, the history explained the hopes and aspirations of the politicians and of the Australian
people. But these could no more control the meaning to be ascribed to the language of the Constitution than
could equivalent extrinsic materials determine the meaning of an ordinary statute[261]. Attention was
drawn to the contrast between Mr Wentworth's successive proposals and the amendments to the 10
Constitution eventually adopted. The Commonwealth argued that had it been the purpose of the Parliament
legally to forbid legislation detrimental to, or discriminatory against, Aboriginals, a group of Aboriginals or
any other people on the ground of race, the Wentworth proposals (or some variant of them) would have
been adopted. But they were not.
In addressing the arguments of the parties, it is essential to acknowledge the force of the submissions put for 15
the Commonwealth and the supporting interveners. They rested principally upon the language of the power
conferred by par (xxvi) and upon the ordinary rule that such language should not be given a narrow or limited
operation but one broad and large so as to meet all possible legislative eventualities. Historically, the power
was apparently intended, at the time of Federation, to extend to legislation detrimental to, and discriminatory
against the people of any race (other than the Aboriginal race). The deletion of the exception left, so it was 20
argued, the essential character of the power unchanged. Most readers of the Constitution would be unaware
of the Convention and Parliamentary debates. In time, few would be aware of the arguments at the 1967
referendum. They would have before them only the head of power expressed in par (xxvi). The
Commonwealth argued that, even if contemporary and future readers chanced to study the historical material,
they would find much in the Conventions and some in the Parliamentary debates which was ambivalent. 25
Particular statements could be found which acknowledged the possibility that the race power might, perhaps
rarely and exceptionally, be used to support legislation detrimental to, or discriminatory against, a people
(including, after amendment, Aboriginal people) on the ground of their race.

What we have is that Subsection 51(xxvi) was intended to DISCRIMINATE against a 30
coloured race and as the Court itself acknowledged the intention in regard of Aboriginals was
to make laws in favour of Aboriginals.
Proper reading of the Hansard records of the Constitution Convention Debates shows that
nothing of the sort was intended by the Framers of the Constitution as to allow the
commonwealth of Australia to make laws to make laws to benefit a coloured race as in fact it 35
was made clear that legislation could NOT be against the general community which by the
amendment would eventuate. Again, not at all what Latham CJ purported to make out of it as
referred to above.
Mr. BARTON.-
. If it is necessary to give the Federal Parliament power to make laws for their regulation, not applying
to the rest of the people of the Commonwealth,

The issue therefore is to ask, was at the time of the referendum the electors advised that to 45
remove the wording regarding aboriginals would alter the structure of the section and would
allow the Commonwealth of Australia to legislate against the general community? I doubt the
referendum would have been successful in that regard. Hence, it was a con-job referendum

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where, by the High Court of Australia own quotation of the matters put to the electors did not in
anyway whatsoever refer to any change of application in regard of this Subsection in regard of
other coloured races. Hence, it could not be accepted that therefore this was intended by the
electors. Neither was there any part in the referendum put to them to seek the elector to vote to
allow within this section legislation to be made against the general community, and as such it 5
cannot then be argued that the Racial Discrimination Act 1975, against the general community
is valid. We therefore have that subsection 51(xxvi) was amended to remove the wording relating
to Aboriginals and by this allowed DISCRIMINATION against Aboriginals to occur and by this
in the process they all lost their citizenship.
It cannot be that somehow one subsection has different meaning pending as to which race it 10
applies to and neither can it be deemed that somehow the electors accepted discrimination
against themselves on a grand scale that they too were to be deprived of their citizenship and so
their franchise, as like anyone else and by this in effect all subjects of the Queen would be
robbed of their citizenship and so franchise and no one would be left to be eligible to vote
and neither to be a Member of Federal Parliament or for that any other Parliament. 15
Hence, in my view, despite that it might have been put to the voters in the referendum;
"The purposes of these proposed amendments ... are to remove any ground for the
belief that, as at present worded, the Constitution discriminates in some ways against
people of the Aboriginal race, and, at the same time, to make it possible for the
Commonwealth Parliament to make special laws for the people of the Aboriginal 20
race, wherever they may live, if the Commonwealth Parliament considers this
desirable or necessary. ... The Commonwealth's object will be to co-operate with the
States to ensure that together we act in the best interests of the Aboriginal people of
Australia".
In relation to the proposed amendment to s 127, the written case said[255]: 25
"Our personal sense of justice, our commonsense, and our international reputation
in a world in which racial issues are being highlighted every day, require that we get
rid of this out-moded provision ... The simple truth is that Section 127 is completely
out of harmony with our national attitudes and modern thinking. It has no place in
our Constitution in this age." 30
In my view, the case to argue that Subsection 51(xxvi) discriminated against the Aboriginal race
was a falsehood. Subsection 51(xxvi) protected the Aboriginal race from being discriminated
against by the Commonwealth of Australia. It was a federal Constitution not a State constitution.
As to section 127, it had no application as to the right of franchise of Aboriginals, however
should have been, in my view, made a provision only to have been applicable for a few years 35
after federation to avoid financial ruin of States with large Aboriginal populations for the first
few years considering the application of quotas then.
In my view, the amendment of subsection 51(xxvi) should have been placed before the people
outlining what was intended in the overall. Not that there was a gross deception to the true
intentions of the Federal Government as now appears to me to have eventuated. 40
In my view, it is unacceptable to accept that on the one hand the electors desired to advance the
cause for the Aboriginals and at the same time accepted that in return the Aboriginals as well as
themselves could be robbed of their citizenship and so their franchise. Indeed, no sane politician
is, so to say, cut his own throat to put himself in such manner out of a job. Hence, despite the
question pur to the electors, it cannot be deemed right that the Racial Discrimination Act 1975 45
was within constitutional powers of the Commonwealth of Australia in that it was a law to
discriminate on behalf not just for Aboriginals but of any race against the general community! A
discrimination in reverse, beyond the ability of subsection 51(xxvi) to be applied considering the
limited or narrow view of the referendum.

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I cannot accept that the United Nations somehow oppose the discrimination against Aboriginals
but would accept discrimination against Aboriginals as to them loosing then their citizenship and
so their franchise as well as anyone else of the general community.

This is the problem; when you have people seeking to tamper with constitutional provisions not 5
understanding what consequences there might flow from.

Albeit at the time a barrister sought my assistance (FREE OF CHARGE) to address the
constitutional issue regarding subsection 51(xxxvi) I had not had the benefit to read let alone to
consider what was stated in Kartinyeri v The Commonwealth [1998] HCA 22 (1 April 1998) I 10
had nevertheless given my views that subsection 51(xxvi) did not allow for any Hindmarsh
Bridge to be enacted in that it was not a law against a coloured race and would be harmful to
Aboriginals who were, say, residing in major cities whom had no connection with the building of
the bridge yet would still be robbed of their citizenship and so franchise because of the
legislation. 15
I did not have at the time any material as to why subsection 51(xxvi) was amended, and having
read now the Kartinyeri v The Commonwealth [1998] HCA 22 (1 April 1998) judgment it does
not alter my original views one of iota.
No constitutional provision can have a double standard that it operates in regard of one race one
way and in regard of another race another way. 20
Whatever the ill conceived advise might have been from the UN it was immaterial, as I view it,
as the United Nations had no say as to the Constitution as was enacted in 1900. And, if anything,
its interference may very well have caused the misconception and the constitutional dilemma
now faced in regard of Aboriginals and so the rest of the population.
25
In my very successful case before the County Court of Victoria I did challenge also the validity
of the Racial Discrimination Act 1975 on constitutional grounds and this was also stated in the
Section 78B NOTICE OF CONSTITUTIONAL MATTERS and that upon this no person in
the general community and neither any Aboriginal had citizenship and so neither franchise.
My numerous constitutional grounds against various legislative provisions remained 30
UNCHALLENGED and hence for this I was not just successful in my cases but also had a legal
verdict to prove this.
In my view, the best option would be to have subsection 51(xxvi) restored to its original version
and then have a new subsection added that specifically refers to Aboriginals and for this also
Torres Strait Islanders and so as to make clear that the Aboriginal cause is different then that 35
which might be desired against other races. In my view, the entire subsection 51(xxvi) ought to
be deleted but that is my personal view and it not the issue as to what is constitutionally
appropriate.
Mr. BARTON: It is only for the purpose of determining the quota.
Dr. COCKBURN: Is that perfectly clear? Even then, as a matter of principle, they ought not to be 40
deducted.
Mr. O'CONNOR: The amendment you have carried already preserves their votes.

The statement
The amendment you have carried already preserves their votes 45

Refers to Section 41 of the Constitution that already preserved the votes of any Aboriginal who
at the time of the federation had obtained State franchise as to be able to vote in federal elections.

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And, at the time of federation Aboriginals who had (colonial) State franchise did vote in the first
federal election as even the Australian Electoral Commission now amidst to on its website.
Again
It is only for the purpose of determining the quota.
5
As such, it was not at all directed per se against Aboriginals to discriminate against them but it
was for financial purposes as otherwise the federation may not have eventuated had the States,
such as South Australia been heavily burdened to pay per capita to the newly formed
Commonwealth of Australia a levy. (Consider the breadwinners issue referred to above also)
10
The Hon. F.W. HOLDER: We do not want any such position. South Australia wants her own, if she can
get it. She is going to get as near to her own as she can; but she does not want one penny belonging to anyone
else. I think I may say the same for Tasmania. We all of us want our own, no more and no less. That being 15
so, it is apparent at once that neither 40 per head, nor any other amount per head, equal over the
whole commonwealth will do. You appear to wipe out the surplus, but you do not wipe it out at all. You
simply provide that there shall be a return equal per head over the whole population at once throughout the
commonwealth. Suppose it were proposed that at once a per capita distribution of the surplus should take
place, would that be accepted? Do not even the representatives of Tasmania themselves argue against the 20
inequity of such a proposal? Is it not apparent to us all, whatever may be possible in the future, that when
things have settled down, and the new tariff has been some years in operation, it is simply out of the question
that we should begin right away with an equal per capita distribution, which is what this scheme of taking
over it certain proportion of the debts amounts to if you go to bedrock in considering it.
25
Clause 120-In reckoning the numbers of the people of a State or other part of the Commonwealth aboriginal
natives shall not be counted.
Dr. COCKBURN: As a general principle I think this is quite right. But in this colony, and I suppose 30
in some of the other colonies, there are a number of natives who are on the rolls, and they ought not to
be debarred from voting.
Mr. DEAKIN: This only determines the number of your representatives, and the aboriginal
population is too small to affect that in the least degree.
Mr. BARTON: It is only for the purpose of determining the quota. 35
Dr. COCKBURN: Is that perfectly clear? Even then, as a matter of principle, they ought not to be
deducted.
Mr. O'CONNOR: The amendment you have carried already preserves their votes.
Dr. COCKBURN: I think these natives ought to be preserved as component parts in reckoning up
the people. I can point out one place where 100 or 200 of these aboriginals vote. 40
Mr. DEAKIN: Well, it will take 26,000 to affect one vote.
Mr. WALKER: I would point out to Dr. Cockburn that one point in connection with this matter is, that
when we come to divide the expenses of the Federal Government per capita, if he leaves out these
aboriginals South Australia will have so much the less to pay, whilst if they are counted South Australia will
have so much the more to pay. 45

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This proves that Section 127 was not particularly against Aboriginals but was rather to reduce the
monies payable, such as in regard of South Australia, having a large population of Aboriginals.

Exercising constitutional powers just be appropriately applied. While I can accept for purpose of
law enforcement the Navy might detain a person or persons of an illegal fishing boat to be able to 5
transport the person to the nearest location to be handed over the appropriate State law
enforcement force, it cannot, as it did keep people in a unseaworthy boat of Ashmore island,
regardless it was on orders of John Howard, as this was unconstitutional and illegal detention and
likewise the towing of an unseaworthy boat away from safety was unconstitutional and illegal. It
had nothing to do with enforcing Commonwealth law relating to the defence forces but was to 10
use armed forces in an unconstitutional manner for political purposes. John Howard did not have
any constitutional powers to override constitutional embedded principles and neither to overrule
State and Territorial laws that requires that no unseaworthy boat is permitted to leave. Yet, I have
yet to discover in any judgment of the High Court of Australia condemnation upon John Howard
and his cohorts to have acted in flagrant disregard for constitutional and other legal provisions 15
and having manipulated the defence forces to carry out his political intentions to better himself in
a purported federal election rather then to uphold constitutional provisions and relevant laws.
Anyone who were to argue that because the USA declares war against another nation or simply
go out and murder people in their own country because their cowboy attitude of shoot them
up might be dictating their conduct then arguing that because of some ANZUS or other treaty 20
then the Commonwealth of Australia likewise can go to war disregarding constitutional
requirement and limitations in my view, so to say, has a screw loose. Then consider;

Re: COMMANDER CHRISTOPHER BOLTON, CAPTAIN H.M.A.S. "PENGUIN" AND THE HONOURABLE
KIM CHRISTIAN BEAZLEY, THE MINISTER OF STATE FOR DEFENCE Ex Parte DOUGLAS BEANE F.C. 25
87/012
High Court of Australia

The words of a
Minister must not be substituted for the text of the law. Particularly is 30
this so when the intention stated by the Minister but unexpressed in the law
is restrictive of the liberty of the individual. It is always possible that
through oversight or inadvertence the clear intention of the Parliament fails
to be translated into the text of the law. However unfortunate it may be when
that happens, the task of the Court remains clear. The function of the Court 35
is to give effect to the will of Parliament as expressed in the law.

Any officer of the
Commonwealth Executive who, without judicial warrant, purports to authorize or
enforce the detention in custody of another person is acting lawfully only to 40
the extent that his conduct is justified by clear statutory mandate.

12. In the absence of statutory provision to the contrary, a person in
Australia who has not breached Australian law is entitled to his freedom: see
Brown v. Lizars (1905) 2 CLR 837 at pp 851-852, 861 and 867-868 and Reg. v. 45
Governor of Brixton Prison; Ex parte Soblen (1963) 2 QB 243 at pp 299-302 and

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306-307.

Lord Denning M.R. in Reg. v.
Governor of Brixton Prison; Ex parte Soblen (1963) 2 QB 243, at p 299, stated
the common law in terms which I would respectfully adopt: 5

" ... every person coming from abroad, as soon as he
sets foot lawfully in this country, is free; and,
so long as he commits no offence here, he is not to
be arrested or detained for any offence that he may 10
have committed in some other country. If any
attempt were made to arrest him in order to
surrender him to that other country, he would at
once be entitled to be set free. The writ of
habeas corpus is available to him for the purpose. 15
In the absence of an extradition treaty, it is no
answer for the Crown, or any officer of the Crown,
to say that he wishes to send him off to another
country to meet a charge there."
20
2. The laws relating to the return and deportation of prohibited immigrants
and the deportation of aliens and laws relating to extradition for trial on
criminal charges qualify the general freedom from arrest and surrender to
foreign authorities but, unless a provision of such an exceptional law
applies, the common law and the Habeas Corpus Act 1679 deny to the Executive 25
governments of this country, whatever inducement a foreign government may
offer or press, any power to arrest and surrender an Australian resident into
the custody of foreign authorities. Unless there be overriding statutory
authority for the arrest and surrender of an Australian resident, he is
entitled to a writ of habeas corpus to obtain his freedom here: Ex parte 30
Besset (1844) 6 QB 481 (115 ER 180). To justify such an arrest and surrender,
there must be a statute or subordinate legislation (Lloyd v. Wallach (1915) 20
CLR 299; Ex parte Walsh (1942) Arg LR 359) enacted in exercise of an available
legislative power (Australian Communist Party v. The Commonwealth (1951) 83
CLR 1, at p 195) which abrogates or suspends the right to habeas corpus: R v. 35
Clift; Ex parte P (1941) SASR 41, at p 46. The question in this case is
whether the prosecutor's right to a writ of habeas corpus has been abrogated,
in the particular circumstances of the case, by the provisions of Pt IXA of
the Defence Act 1903 (Cth) which were inserted by s.8 of the Defence Acts
Amendment Act 1981 (Cth) ("the 1981 Act") and which came into operation on 15 40
August 1983.

4. The law of this country is very jealous of any infringement of personal
liberty (Cox v. Hakes (1890) 15 App Cas 506, at p 527) and a statute or
statutory instrument which purports to impair a right to personal liberty is 45
interpreted, if possible, so as to respect that right: R. v. Cannon Row Police
Station (Inspector) (1922) 91 LJKB 98, at p 106.

See also;

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CHU KHENG LI M AND OTHERS v. THE MI NI STER FOR I MMI GRATI ON, LOCAL GOVERNMENT AND
ETHNI C AFFAI RS AND ANOTHER (1992) 176 CLR 1 F.C. 92/051

There simply is no constitutional powers for the Federal Attorney-General to authorise Federal
Police, Immigration staff, ASIO or other federal officers to operate within the sovereignty of any 5
State in the manner as seems to be now occurring by unconstitutional legislation. It underlines
the need for an OFFICE OF THE GUARDIAN as the GUARDIAN OF THE
CONSTITUTION, in my view, it incompetent to do the job required, without the impartial
source to assist in a better understanding as to what constitutionally concepts, embedded
principles, prohibitions, powers and limitations stand for. (See also below about issue of the 10
OFFICE OF THE GUARDIAN.)

* Gary, I am getting a bit confused here, and perhaps you can clarify this matter not just for me
but also for the reader.
15
**#** Off course, just what is the confusion about?

* Well, if the Commonwealth of Australia can pass legislation as to Aboriginals but cant
legislate even so the referendum approved of laws to be made then how does this work?
20
**#** I will explain this. In Kartinyeri v The Commonwealth [1998] HCA 22 (1 April 1998) the
Court was faced with the building of a Bridge in the State of South Australia and not that of a
building of a bridge in Northern Territory.

* What is the difference besides geographically location? 25

**#** Well, South Australia is not a territory of the Commonwealth of Australia but a limited
sovereign State.

* Why limited? 30

**#** It is sovereign in regard of all legislative powers it retained but not sovereign in regard of
legislative powers that were transferred for purpose of federation, by referendums an and subject
to (that is if it was constitutionally valid) referrals of powers. It doesnt matter if this deals with
Aboriginal matters, Industrial Relations or other matters as it remains to be in all legislative 35
powers incidents the same. So, the Commonwealth of Australia has legislative powers but only
for the whole of the Commonwealth for all matters governing ordinary legislative powers as
contained in the Constitution, such as those in Section 51, however there is a certain reservation
to this. Any legislative powers that have been referred by a State, or some but not all States are
not necessary legislative powers for the Commonwealth of Australia for the whole of the 40
Commonwealth and so are legislative powers the Commonwealth of Australia can use for only
those States which have referred the particular legislative powers to the Commonwealth of
Australia, have adopted it or where within Section 122 of the Constitution the Commonwealth of
Australia already had legislative powers. However, to make it more confusing, if in the end
legislation referred to the Commonwealth but was adopted by all other States and already 45
applicable in the Territories then it would become before Federal law of the kind that must be
for the whole of the Commonwealth. Where however the Commonwealth of Australia within
Section 122 exercises quasi State powers (for so far they exist) then the Commonwealth is not
bound to make laws for the whole of the Commonwealth as it only relates to a specific
Territory. As such a bridge could have been build for Aboriginals in the Northern Territory 50

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within the Section 122 powers not because of having anything to do with Aboriginals but
because of sovereign of the Northern Territory. I am. So to say, gobblesmakked why all those
politicians and lawyers went out on a limb, so to say, to amend Subsection 51(xxvi) to remove
the reference to Aboriginals as the Commonwealth of Australia could have used its Section 96
powers to grand to the relevant State monies which the State then within its own powers could 5
have used for Aboriginal purposes. As such, had the Commonwealth of Australia pursued to
build the bridge in South Australia by granting monies to the South Australia government for
purpose to build a bridge, but not being conditionally upon Aboriginals usage, as since the 1967
con-job referendum this no longer was possible, then the bridge could have been build. That is if
the State of Western Australia would have desired to have it build in the first place. 10

* Does the same operated in regard of Industrial Relations, corporations matters, etc?

**#** No difference at all. The commonwealth of Australia as sovereign of the Territories (on
behalf of the States) exercising powers could therefore regulate the way corporations are to be 15
registered. It then has its powers also to apart of the corporations powers legislate the working
conditions of those working in the Territory. It could in fact within Section 122 apply different
legislation to different Territories as each Territory is a sovereign area upon itself. It was for
this also that when John Howard proposed to sell of POINT NEPEAN, in the state of Victoria
for about 500 million dollars and Premier Steve Bracks offered a mere 74 million dollars I wrote 20
to John Howard , and forwarded a copy to Premier Steve Bracks, that the Commonwealth of
Australia could not sell the land comprising POINT NEPEAN to private developers unless it
was prepared to maintain POINT NEPEAN as a TERRITORY and have its own law
enforcement, planning legislation, building legislation, etc, etc, as State laws had been
extinguished when POINT NEPEAN became exclusive federal territory. 25
John Howard then subsequently announced that he would not sell the lands but would lease it. I
then pointed out that the Commonwealth of Australia could not lease the lands as it could only
use the land for the purposes for which it had acquired it or for other Federal purposes. It should
be kept in mind that it was never intended by the Framers of the Constitution that the
Commonwealth of Australia could be a competitor against the States, and so where there is any 30
notion of competition then the Commonwealth must fail.

* Moment, what about Section 109?

**#** That is not relevant as such, as the Commonwealth of Australia is bound to make laws for 35
the peace, order, and good government and it was not created to become a competitor
against the States but to represent the States in a unified manner.

* If I may ask, how do you establish competitive conduct by the Commonwealth of Australia?
40
**#** Well, take for example the usage of WOOMERA where it is leased out by the
Commonwealth of Australia to let Japan, The Netherlands, and many other countries use its
facilities to launch rockets, etc. This is in fact unconstitutional as the Commonwealth of Australia
acquired the land for Commonwealth purposes and not for other nations to exercise upon it. The
moment it leases out the territory for non-Commonwealth purposes then it is unconstitutional. 45

* How can it then be that they can lease out property in the Northern Territory?

**#** That is because that is a quasi State not at all obtained for Commonwealth purposes but it
was separated from South Australia and retained its own common law structure by this. Also. 50

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Anyhow, the way it is that John Howard ended up not leasing it either, as I understand it, but
handed POINT NEPEAN back to the State of Victoria and paid about 5 million dollars for a
clean up. Steve Bracks having received a copy of my correspondence to John Howard
subsequently withdrew his 74 million dollar offer. People in Victoria then argued that he did a
backflip, but they were not aware that I had written in regard of the constitutional position if it 5
all.

* Did anyone give you credit for this?

**#** No, neither did they do in the Queensland Court of criminal appeals when it basically 10
word for word quoted from my book INSPECTOIR-RIKATI on CITIZENSHIP the reasons
of overturning the convictions of Pauline Hanson and David Ettridge, but then again neither do
others when they successfully win their cases. Liam McGill is a clear example in his paternity
case where in fact I was assisting him with his case but as soon as he won he was in the news
claiming he had done it all by himself. Well, when then he engaged a lawyer for the High Court 15
of Australia case I made clear he had done is himself, so he had claimed, then I wasnt going to
get involved.

* Out of spite?
20
**#** Nothing to do with that. The man lied to the people and claimed it as being his own work,
even so one of the judges during the case in fact referred to me that I had indeed sought to follow
the proper procedure and his former lawyer had wrongly advised him, and as such there can be
no doubt that I was assisting Liam McGill and the Court had recognised this itself. My issue is
that he was dishonest to claim the credit for himself. If he had not claimed for himself and left it 25
unanswered then it would, so to say, have been no skin of my nose, but I dont like it when all
the hard work I have put into it is being claimed by others.
Likewise that with Pauline Hansons case I published on 1 December 2003 a book

INSPECTOR-RIKATI on PLEASE EXPLAIN 30
A book on CD political and legal questions
ISBN 978-0-9751760-0-9 was ISBN 0-9751760-0-5

It contains copies of correspondences, such as of the Queensland Attorney-General admitting
that none of the issues I had raised were by any parties placed before the various courts, not even 35
before the High Court of Australia. As such, I viewed that Premier Peter Beatty (through the
States lawyers) had concealed from the High Court of Australia relevant details/information and
the High Court of Australia then refused the application, however because I managed to pass on
material to Pauline Hansons sister urging her to place it before the Court of Criminal Appeals it
was so done and the result was the appeals succeeded. 40
Anyhow getting back to the legislative powers, the Commonwealth of Australia therefore may or
may not have complete legislative powers depending upon how it is obtained and to what extend.
If only a few States refer (that is constitutionally validly so) legislative powers then the
Commonwealth of Australia is not legislating as under its general legislative powers but is
legislating as representing the sovereign of the particular State or States who have referred 45
legislative powers only, and as such can therefore legislate upon the reference of legislative
powers in regard of those States who referred the legislative powers and for those who adopted it
in special terms to those States provided it does not involve all States. This, as the moment
referred powers covers most States and all other States have adapted it then it is no longer an
exclusive legislative power but become an ordinary general power for the whole of the 50

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Commonwealth. As such, every piece of legislation by the Commonwealth of Australia should
really be identified under which constitutional power it was enacted. It is absurd to expect the
High Court of Australia to elicit from the legislation under which heading it might fall. That is
not what the purpose of the High Court of Australia is for and to do so would make the Court not
being the judicial arbitrator but rather a political tool for the federal government to do its dirty 5
work so to say, to find some way to legally justify its legislation.

I recall a case one where I pursued an application in the Supreme Court of Victoria, and used the
former application of the opponent as a basis. The judge then pointed out that I could not succeed
under that particular heading and it made no difference if the opponent previously had done so. 10
His Honour made clear the onus was upon me to prove the Court had jurisdiction and so under
which heading. As I never had expected this kind of response, as I viewed then that if the other
party could use it then why could I not also, but I had to recognise that the Court in the
circumstances acted appropriately and could not invoke jurisdiction where it had none within that
particular legislation I relied upon and previously the opponent had relied upon. 15

* Are you meaning that it was for the Commonwealth of Australia to point out to the Court
within which Section it had enacted the legislation?

**#** That is correct, the onus was upon the Commonwealth of Australia to set out which part of 20
the legislation was under which constitutional legislative power.

* If I may about the industrial relations legislation how does this then work out?

**#** Well, the issue ought to have been what section fell under which heading of constitutional 25
powers. Instead of the judges guessing it the Commonwealth should have indicated so. For
example, it should have grouped the various sections which it deemed fell under corporations
powers, which it claimed fell under it general legislative powers for the whole of the
commonwealth, which fell under the heading of section 122 and which fell within the limited
referred legislative powers. 30

* Oei, that is some division there.

**#** Well, if the Commonwealth of Australia invoked legislative powers under its general
legislative powers within the provisions of subsection 51(xx) then it could not rely upon any 35
allege referral of powers for the State of Victoria or for that matter its legislative powers within
section 122 of the Constitution as it was to be a general power. If however the legislation
excluded Victoria from the general legislative powers then it indicates it was not a general
legislative power at all under the heading of subsection 51(xx) but rather was purported to be
so. You cannot have a legislation used under the general legislative powers of any subsection 40
not being applicable to some State or Territory, as the moment you do so, being it because of
referred legislative power, then it no longer can qualify as being a general power within section
51. Therefore if the legislation was enacted but excluding the State of Victoria (because of the
referred legislative powers) then it clearly was not a general power exercised within subsection
51(xx) as the referred powers of industrial relations can have no bearing upon the exercise of 45
general legislative powers within subsection 51(xx) as to do so would rather signify that in fact
the was no use of the general legislative powers within subsection 51(xx) but rather that it was
a power of subsection 51(xxxv) but for legal trickery pursued to be within subsection 51(xx).
What ought to be clear is that the referral of legislative powers by the State of Victoria (apart of
if this was constitutionally valid) should have played no part in any legislation purportedly 50

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enacted within the confines of subsection 51(xx). The Commonwealth of Australia by referring
to the reference of legislative powers within subsection 51(xxxvii) for purpose of subsection
51(xxxxv) acknowledged that the exercise of the legislation was for industrial relations purposes
and nothing to do with the subsection 51(xx) general legislative powers.
In my view, it would have been wiser for the Commonwealth of Australia to have legislated 5
within the provisions of subsection 51(xxxv) for so far it could using also its own Section 122 of
the Constitution sovereign territorial powers as well as the (if so constitutionally validly
referred) industrial powers of any State and then have sought other States to adopt this
legislation as to make it a general legislative power.
10
* Could not like the Australia act all States have referred their legislative powers?

**#** As I have explained so often to you, if you were not asleep, and the Australia Act 1986
(Cth) is a clear example, there is not constitutional power for all States to refer legislative powers
to the Commonwealth within Section 51(xxvii) and neither was the Australia Act 1986 15
provisions anything that could be deemed being a matter in dispute by some States.

* Look, you do not need to be offended about me asking this again, as the Reader may not have
read our other books that already have been published and as such I am merely pretending that I
dont know and so ask the question again for the sake of the Reader to get tome grip on matters. 20

**#** All right, perhaps I was a bit to quick on rebuking your question, and I acknowledge that
you are trying to assist the Reader in that regard just that I am a bit edgy, so to say, as I am all
ready noticing that this Chapter is about 350 pages and I never intended to have it that long and
need to cut out parts to reduce the volume as otherwise we have a one Chapter book. So I am 25
trying to keep discussions to a minimum.

* Excuse me, it is not better to set the facts straight then to do what you criticise the High Court
of Australia so much about, failing to attend to all relevant matters?
30
Sure, but there is now a limit to what we can do, at least in this Chapter, and I am not saying I do
not welcome your very helpful assistance but lets keep some material for another section and
unlike the judges we do not have to set out all relevant matters in this chapter as we can
published in the book on CD in more extensive manner. After all, this book to be printed will be
of limited number of pages and so have to be seized down for this. 35
Anyhow let not waste any space and time and lets go into the issue of what we are discussing and
that is Industrial Relations. The Framers of the Constitution having created subsection 51(xxxv)
under its own heading therefore specifically stated that anything to do with industrial relations
cannot be covered with any other general provision, such as subsection 51(xx) unless it can be
demonstrated that not to legislate so would injure the powers otherwise exercisable within 40
subsection 51(xx). Not some imaginary injury but a distinct injury that it could not legislate as to
the registration of corporations because of it, or it could not effect registration of companies
because of industrial relations legislation by one of more States. For example, if a State had
legislated under its legislative powers that no employee could work for a corporation not created
in that State then it could be claimed by the Commonwealth of Australia to injure its general 45
legislative powers to register a company within subsection 51(xx) as it would go to the heart of
the ability of a corporation to operate.

* Would you mind not to give the Commonwealth of Australia some possible ideas how to
perhaps otherwise get around matters! 50

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**#** Look, I am not seeking to argue the matter on moral grounds, unless so argued by the
Framers of the Constitution, I am seeking to argue the ability of how the provisions of the
general legislative powers of subsection 51(xx) could have been invoked in a constitutional
manner if such event had taken place, as to show a legitimate claim of injury to the 5
Commonwealth of Australia general legislative powers.
Lets now look as the application of general legislative powers as the Framers of the
Constitution intended, in particular the proceedings as shown in the Hansard records of the
Constitution Convention Debates of 27-1-1898 does give an insight to some of the questions
posed by the Framers of the Constitution and even their own bewilderment as to how matters 10
were applicable, as was indicate by some Delegates.

Mr. KINGSTON.-Yes, the New Zealand and South Australian provisions are very much alike. I think you 15
might go further, however, as we do in South Australia, and provide for the creation of a private board by a
simple agreement between the parties. I do not ask the Convention to come to any conclusion as to the mode
in which this power should be exercised; but I ask honorable members to say that it is a right and proper thing
to give to the Federal Parliament the power of dealing with these questions in such a way as it may think fit
whenever they assume an aspect of federal importance. The leading feature of this Constitution is that the 20
Federal Parliament should have power to legislate for the peace, order, and good government of the
Commonwealth." By what means are the peace and order of the various colonies most disturbed, and their
good government threatened, at the present time? By strikes and lock-outs. Shall we not then be wanting in
our duty if we do not give to the Federal Parliament power to legislate in such a way as will prevent strikes
and lockouts, and enable industrial questions of the greatest difficulty to be amicably settled between the 25
parties, upon considerations of right and wrong rather than because of the relative strength of the
disputants.
The High Court of Australias own admission, as referred to below that it never has attempted to
restrict legislation to be considered within the limitations of for the peace, order, and good
government, must be a condemnation to itself for having, as the GUARDIAN OF THE 30
CONSTITUTION, disregarded this constitutional limitation. The High Court of Australia is
constitutionally bound to interpret matters within the constitutional terms provided for and
cannot ignore limits merely as to perhaps please the Federal Government, being it for the sake of
seeking a more acceptable position for pay increase, better conditions, or whatever, as it would
basically allow itself to be placed in conditions it argued against in the Forge 1996 case 35
regarding temporary judges and that they could be, as I put it in my own words, manipulated.
Time and again the Framers of the Constitution stipulated that legislative powers was to be
within the limited powers for the peace, order, and good government and as such it is not
for the High Court of Australia to simply ignore this constitutional limits as by doing so and
confessing to always having done so allows its credibility to be questioned and so also what 40
might be the reason for doing this. I, for one, did not notice any of the judges to address the issue
if any colonial laws were still existing that were affected by the purported Amendment Act
(WorkChoices) legislation.
See also Chapter 007B PEACE-ORDER AND GOOD GOVERNMENT
While judges over the last 100 years of so might not have bothered to research the Hansard 45
records of the Constitution Convention Debates at all or not to the extend as I have, nevertheless
it cannot by its own ignorance not to have done so deprive the States of their guaranteed
legislative provisions as existed at the time of federation. None of the judges appear to me to
have considered this issue and as such none of the judges have adjudicated upon this matter in an
appropriate manner. The provisions of Section 109 were referred to but not considering possible 50

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existing colonial laws. Where it comes to the debates about aliens the Delegates themselves are
puzzled what is the proper course as different views emerged about the application of what is
now Section 51 of the Constitution legislation by a State versus Federal legislation. What is
however clear is, that there was a clear opposition to give legislative powers to the
Commonwealth of Australia regarding State internal affairs regarding industrial relations and for 5
this consider their statements made and intentions expressed it would be an absurdity to read into
subsection 51(xx) that it included powers the Framers held fell within the Industrial Relations
powers.

Where laws exist at the time of the adoption of this Constitution they will be preserved; but do not let
us give power to the states to make new laws which will create new difficulties and complications.

Also should be kept in mind, as many quotations below indicates, that even for federation 15
purposes existing contracts were considered and as such it would be absurd to accept that
companies could have entered in commercial contracts upon the basis of valid State legislation
and then suddenly the Commonwealth of Australia by its enactment could cause the company to
become bankrupt, due to legislative changes that make fulfilling existing contract financially
impossible. Likewise, workers who had entered into employment and upon this engaged in 20
mortgage and other financial contracts upon valid State legislation would then be send bankrupt
for no fault of their own but because of the Commonwealth of Australia legislating in defiance of
reasonable business practices. Why on earth the judges never considered this issue is beyond me.
No business could act with confidence where their very security would be undermined. Indeed,
the Framers of the Constitution opposed to allow retrospective legislation as to turn a honest man 25
into some criminal by retrospective legislation. Yet, somehow the High Court of Australia, the
GUARDIAN OF THE CONSTITUTION has permitted the Commonwealth of Australia to
vandalise business security. Many companies quite for work in other countries and it can take
years before eventually they may be awarded a contract. They spend tends if not hundreds of
thousands of dollars to estimate projected cost and this based upon existing State law, where 30
applicable. It would be absurd to accept that some building contractor, having entered in to
building a large office complex and have done to on the security of State laws, then suddenly
might be faced with the Commonwealth of Australia deciding to legislate and may set conditions
that would be devastating to the builder and may even cause him being prevented to fulfil his
contractual obligations and also cause his financial collapse. Common sense alone ought to have 35
given the judges the understanding that no one could be allowed to be some business terrorist to
change conditions as if it has all the powers to do so disregarding it can only make legislation
for the peace, order, and good government. Why none of the lawyers involved in the cases
that were before the Court raised this issue also ought to be questioned. After all, where I am not
even formally trained in legal matters but achieved my knowledge by self study, then surely 40
lawyers who are earning large amounts of moneys and have their profession to litigate
constitutional issues should have been competent enough to raise this issue before the court.


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The matter reminds me very much of the story of "Ginx's Baby." After they had been squabbling
about the "territorial rights" of that unfortunate baby until it had been kicked overboard, the writer
concluded with these extraordinary words, "Good God, what has become of the baby?"

The same might be stated where the very people who are the centre of the issue have been totally 5
ignored.
Where Commonwealth law in effect have the result to act retrospectively against existing
contracts that were made at the time under valid State laws then this too ought to be considered
that the legislation must be deemed for this to be null and void.
10
Mr. BARTON: I will look into these matters. Notwithstanding the able draughtsmanship of the 1891 Bill,
there are several clauses not quite in their right place in it, and it would be well to alter their order. The
Drafting Committee will look into that matter, and at the end of the proceedings will ask hon. members to 15
give their attention to such alterations as they may suggest. It will be better to transpose some of the clauses.
With reference to Sir Edward Braddon's amendment, which is put in a better form than that suggested by Mr.
Symon, I do not think there is any actual necessity for it. I find in Maxwell on "Interpretation of Statutes," 1st
edition, page 192, this passage:
It is where the enactment would prejudicially affect vested rights, or the legal character of past Acts, 20
that the presumption against a retrospective operation is strongest. Every Statute which takes away or
impairs vested rights acquired under existing laws, or create a new obligation, or imposes a new duty,
or attaches a new disability in respect of transactions or considerations already past, must be
presumed, out of respect to the Legislature, to be intended not to have a retrospective operation. Thus
the provision of the Statute of Frauds, that no action should be brought to charge any person on any 25
agreement made in consideration of marriage, unless the agreement were in writing, was held not to apply to
an agreement which had been made before the Act was passed. The Mortmain Act, in the same way, was held
not to apply to a devise made before it was enacted. So it was held that the Act of 8 & 9 Vict., c. 106, which
made all wagers void, and enacted that no action should be brought or maintained for a wager, applied only to
wagers made after the Act was passed. 30
Sir GEORGE TURNER: There is no doubt about those cases, I should say.
Mr. BARTON: In subsequent editions these examples are multiplied. The principle underlying the
matter is this: that a court in construing an Act assumes that Parliament never intended to do a thing
which is unjust. I am quite sure that Mr. Symon will agree that the provision is not necessary.
Mr. SYMON: Hear, hear. 35
Mr. BARTON: There need not be the least fear that any court of justice would so interpret the
provision as to apply to anything made before the law took effect.

Mr. OCONNOR.-
I think the honorable member (Mr. Higgins) will understand, from his experience of the law, that there are
differences of opinion about these matters, and we only want to ascertain what the law really is. I have a very
clear view about it myself, and I think the view I have is in accordance with what we will all admit to be the
justice of the case. Further, if there was any doubt at all about the preservation of rights which have been 45
acquired under any bounty laws made before the 30th June, 1898, I think that point should be made perfectly
clear in the Constitution, so that those rights should be preserved. But after that date any statute which merely
gives the right from day to day, as the offers under the statute are accepted, should, of course, cease on the
imposition of uniform customs duties. I call the honorable member's (Mr. Isaacs') attention to a passage in
Maxwell on the Interpretation of Statutes, page 299, which states- 50

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It is chiefly where the enactment would prejudicially affect vested rights, or the legal character of past
transactions, or impair contracts, that the rule in question prevails. Every statute, it has been said, which takes
away or impairs vested rights acquired under existing laws, or creates a new obligation, or imposes a new
duty, or attaches a new disability in respect of transactions or considerations already past, must be presumed,
out of respect to the Legislature, to be intended not to have a retrospective operation. 5
Then Maxwell gives a number of instances to illustrate this principle, which is very well known.
Mr. REID.-Express words are required to make anything retrospective, to impair a contract.
Mr. OCONNOR.-That is well known, and this provision, when it says the Act is to cease and have no
effect, cannot possibly touch the validity of any contract which has been created while the Act was in
full force and effect. 10
Sir GEORGE TURNER.-Should you not also provide for accruing rights?
Mr. BARTON.-I will see that the clause is made quite clear with regard to all existing rights.
[start page 948]
Dr. COCKBURN (South Australia).There can be no doubt whatever that the honorable member (Mr.
O'Connor) is quite right that any actual agreements or contracts, made with specific persons or companies, 15
would remain in force; but that is not the point raised by this amendment, and I do not think that is the point
raised by the Right Hon. Sir George Turner, in what he proposes to do for the development of the wine
industry of Victoria. I do not take it that he means only to enter into certain contracts with companies or
individuals, which would give them a monopoly if he was prevented from giving the same terms to others.
What I believe the Government of Victoria would wish to do, in developing an industry of this character, 20
would be to make a general agreement to give certain facilities, not to any one individual, which would be
monstrous, but to anybody who chose to fulfil the conditions of the offer; but such general terms would not
be held to be a specific contract under this clause. Of course there is no doubt that if the Government of
Victoria enters into a contract with any individual or company, that would have to stand, and any law that
abolished it would be monstrous; I do not care whether it was an Imperial Act or not. 25
Mr. MCMILLAN.-But what about entering into new contracts?
Dr. COCKBURN.-I take it that these are not contracts at all. These are grants or agreements for a bounty-
the bounty not to be paid to any individual named, but to be paid to any individual or company that fulfils the
conditions.
Mr. MCMILLAN.-Take the case of a guarantee. Do you say that the state Government should be allowed 30
to do that after the 30th June for other people?
Dr. COCKBURN.-Certainly; I take that to be the intention of this clause.
Mr. DOBSON.-To enter into a guarantee with other people?
Dr. COCKBURN.-There is no guarantee with any individual at all in this case. I have been watching this
development in Victoria with some interest; but I do not take it that the Victorian Government intend to enter 35
into any contract, only with an individual or a company. They wish to encourage the establishment of central
depots for blending and maturing wine, receiving must, and so on; but they do not mean to enter into a
contract only with some individual or company.
Mr. HENRY.-Yes, that has been stated.
Dr. COCKBURN.-Of course I may be under a mistake, but I think the people would at once protest 40
against any advantage being shown to any individual who happened to come in before the 30th June that
could not be availed of by others who were willing to subscribe to the same conditions. The state should

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simply offer to give assistance to any of the general public or persons in the trade who desire to take
advantage of the offer; otherwise the proposal would be a monstrous one.
Mr. SOLOMON.-In the same way, you should have the right, in South Australia, to continue the bounties
to others that you have given in the past, with regard to the wine industry.
Dr. COCKBURN.-Certainly; and if the colonies are to go ahead they must have that power. It must be 5
done. You must not cripple a live colony, lest it should get ahead of those who travel at the rate of corpses.
The honorable member (Mr. Solomon) must admit that it would be absolutely disastrous if we were to say
that, in the future, no encouragement is to be given to any particular industry. The assistance will have to be
given somehow, whatever this Constitution may say on the subject. The common sense of Australia will
insist upon it, when some of the ideas of those who still maintain the laissez faire principle are exploded, as 10
they will be shortly. The common sense of the Commonwealth, if we try to tie any ligaments round the
proper development of industries, will insist on those restrictions being removed.
The usage of companies in the aforementioned quotation indicates that it had nothing to do
with Subsection 51(xx) but still was relating to the way the State could deal with companies. In
fact the framers of the Constitution were often referring to companies and as such did not 15
particularly regard that subsection 51(xx) was the all out governing provisions but their debates
rather indicated that the registration was what it was all about concerning Section 51(xx) and
then considering what the framers of the Constitution stated about the meaning of registration for
electoral rolls and the difference to entitlement to vote, then their perception was clearly that
subsection 51(xx) had nothing to do with the managing of a plant or factory but was rather 20
restricted to the manner in which the company may operate in its management affairs.

Mr. HIGGINS.-There has never been any practical difficulty in showing the existence of an organization 25
either on one side or the other.
Sir JOHN DOWNER.-When an organization makes a demand in one colony there has never been any
difficulty in getting other organizations elsewhere to extend the dispute. It is really compulsory arbitration
that is asked for. It is called conciliation, but it is main force.
Using the term organization does not particular either indicate a individual rather more a 30
corporation structure.

Mr. MUNRO: The banks are incorporated under the Companies Act in Victoria! 35
Sir JOHN BRAY: You can establish financial companies, which you do not call banks, but which answer
all the purposes of banks. We have provided that the federal parliament shall legislate as to the incorporation
of banks; but there is nothing to prevent the incorporation by the states themselves, quite apart from the
federal parliament, of trading companies which will do all the ordinary business of banks. If it is
desirable to intrust legislation as to the incorporation of banks to the federal government, there is no reason 40
why we should not say that the registration of financial companies doing all the business of banks should be
dealt with in the same manner.
What stands out here is that the wording of trading companies which will do all the ordinary
business of banks. Rather gives me the understanding that trading companies referred to
were being financial companies and not a trading company as may be deemed to be ordinary 45
companies that are trading in footwear, clothing, etc. Indeed, below is a set out of
disqualification as now exist in Section 44 of the Constitution (after the various clauses were

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revamped to just the one clause) Proviso exempting members of trading companies. And this
indicates that the wording trading company was more about financial trading then trading in
clothing, etc.
Allowance to members.
45. Each member of the Senate and House of Representatives shall receive an annual allowance for his
services, the amount of which shall be fixed by the Parliament from time to time. Until other provision is
made in that behalf by the Parliament the amount of such annual allowance shall be five hundred pounds.
Disqualifications of Members. 10
46. Any person-
(1) Who has taken an oath or made a declaration or acknowledgment of allegiance, obedience, or adherence
to a Foreign Power, or has done any act whereby he has become a subject or citizen or entitled to the rights
or privileges of a subject or a citizen of a Foreign Power; or
(2) Who is an undischarged bankrupt or insolvent, or a public defaulter; or 15
(3) Who is attainted of treason, or convicted of felony or of any infamous crime;
shall be incapable of being chosen or of sitting as a Senator or Member of the House of Representatives until
the disability is removed by a grant of a discharge, or the expiration or remission of the sentence, or a pardon,
or release, or otherwise.
Place to become vacant on happening of certain disqualifications. 20
47. If a Senator or Member of the House of Representatives-
(1) Takes an oath or makes a declaration or acknowledgment of allegiance, obedience, or adherence to a
Foreign Power, or does any act whereby he becomes a subject or citizen, or entitled to the rights or
privileges of a subject or citizen, of a Foreign Power; or
(2) Is adjudged bankrupt or insolvent, or takes the benefit of any law relating to bankrupt or insolvent 25
debtors, or becomes a public defaulter; or
(3) Is attainted of treason, or convicted of felony or of any infamous crime;
his place shall thereupon become vacant.
Disqualifying contractors and persons interested in contracts. Proviso exempting members of trading
companies. 30
48. Any person who directly or indirectly himself, or by any person in trust for him, or for his use or benefit,
or on his account, undertakes, executes, holds, or enjoys, in the whole or in part, any agreement for or on
account of the Public Service of the Commonwealth, shall be incapable of being chosen or of sitting as a
Senator or Member of the House of Representatives while he executes, holds, or enjoys the agreement, or any
part or share of it, or any benefit or emolument arising from it. 35
If any person, being a Senator or Member of the House of Representatives, enters into any such agreement,
or having entered into it continues to hold it, his place shall thereupon become vacant.

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[start page 951]
But this section does not extend to any agreement made, entered into, or accepted, by an incorporated
company consisting of more than twenty persons if the agreement is made, entered into, or accepted for the
general benefit of the company.
Place to become vacant on accepting office of profit. Exceptions. 5
49. If a Senator or Member of the House of Representatives accepts any office of profit under the Crown,
not being one of the offices of State held during the pleasure of the Governor-General, and of profit. the
holders of which are by this Constitution declared to be capable of being chosen and of sitting as Members of
either House of Parliament, or accepts any pension payable out of any of the revenues of the Commonwealth
during the pleasure of the Crown, his place shall thereupon become vacant, and no person holding any such 10
office, except as aforesaid, or holding or enjoying any such pension, shall be capable of being chosen or of
sitting as a Member of either House of the Parliament:
But this provision does not apply to a person who is in receipt only of pay, half-pay, or a pension, as an
Officer of the Queen's Navy or Army, or who receives a new Commission in the Queen's Navy or Army, or
an increase of pay on a new Commission, or who is in receipt only of pay as an officer or member of the 15
Military or Naval Forces of the Commonwealth and whose services are not wholly employed by the
Commonwealth.
Penalty for sitting when disqualified.
This also underlines that the concerns of the framers of the Constitution was about an office of
profit with the Commonwealth and not with a State. 20

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 view, should be solved by the local 25
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 extends beyond the
limits of a state? Who is to decide when a dispute originating in South Australia enters into the colony of 30
Victoria, so that Victoria shall be put under some kind of martial law?
Mr. ISAACS.-It is a question of fact, like anything else.
Mr. SYMON.-Undoubtedly; but who is to decide it? Is it the Victorian Executive? Did I understand my
honorable friend (Mr. Higgins) to say of course"?
Mr. HIGGINS.-No, I say certainly not. 35
Mr. SYMON.-Then who is to decide?
Mr. JAMES.-The Federal Bill will dispose of that.
Mr. SYMON.-How is the Federal Bill to say when a strike spreads from one colony to another? Suppose
one shoemaker steps over from Bordertown to Horsham.
Mr. MCMILLAN.-There might not be a lawyer at the head of affairs, and whoever was there would not 40
know what to do.
Mr. JAMES.-You may be certain the lawyers will be there.

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Mr. SYMON.-That would be the only means of carrying this out to a successful issue. As an honorable
member suggests-and it illustrates the position-supposing a firm has branches in different cities, and there is a
strike in the branch in South Australia, and an air of discontent in the branch in Victoria, would that be
sufficient to call down the interference of the federal authorities? What I say is that it will not be in your Bill;
it will not be in this Constitution; it will not be for the Executive; but it will be for the Federal Parliament to 5
decide that, and you will hand over to the Federal Parliament one of the most pregnant sources of heat and
passion that ever was invented.
Mr. HIGGINS.-Will you not trust the Federal Parliament with this as well as with the customs duties?
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 10
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.
are intimately allied to this question. 15
Again, it is absurd to argue that somehow subsection 51(xx) could have a meaning contrary to
what was so extensively debated.

Mr. SYMON.-Does my honorable friend, who is one of the most profound and acute lawyers in Australia,
really put a question like that to me? The Victorian law did deal with that strike and every incident of it. The
Victorian law could not bring these people together, and metaphorically knock their heads together, which
would perhaps have been the best thing to do; the Victorian law did not say Come together and let us reason
out the thing." No power in the world can do that. 25
Mr. BARTON.-It is the original dispute and not the subsequent strike which requires to be settled.
Mr. SYMON.-A strike is the outward and visible sign of the real dispute between these parties. I appreciate
the reference made by the honorable member (Mr. Dobson), but I think be must see that a maritime strike is
like any other strike. The relations between the parties are determined by the contract in the place
where it occurs. The maritime law of England governs all Australia; the Merchant Shipping Act, with some 30
local modifications, is applicable everywhere, and [start page 193] there is no more difficulty in dealing in
each port with a maritime strike than there is in dealing with any other strike. The point here, as the
honorable member (Mr. Barton) has remarked, is the original dispute. How are you to deal with that?
How are we to deal with the two bodies who join in the conflict? What is a court of law to do?
An HONORABLE MEMBER.-How does a court of law do anything at present? 35
Mr. SYMON.-My honorable friend knows that if a striker strikes a free labourer, or vice versa, and
that goes to a court of law, you can deal with it by the instrumentality of the court of law.
Mr. JAMES.-The honorable member was saying that we should leave the parties to settle the disputes their
own way. We do not allow masters and servants to do that in every case.
Mr. SYMON.-You allow them to settle their disputes in their own way by law. 40
Sir JOSEPH ABBOTT.-The defendant never wants to go to law.
Mr. SYMON.-Of course not. I do not suggest that we should resort to the primitive method of settling
disputes by fisticuffs or trial by combat.

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Dr. COCKBURN.-Strikes are almost as barbarous. We want to settle disputes by a less barbarous form.
Mr. SYMON.-Will my honorable friend tell me, first, how he is going to settle the dispute which has
produced the strike; and, secondly, what possible benefit it will be to remove this from the local
jurisdiction, and to hand it over to the federal authority? My view is that it is purely a matter of domestic
concern, that if we hand it over to the federal authority we shall be introducing greater difficulties than we 5
could even hope to cure, and that it will be an invitation to mischievous men-it may be on the other side, but
we are not touching that question now-to increase and extend the area of the strike in order to bring about
something like civil war. That is a prospect which I dread, and I trust that honorable members will not allow
a mere feeling of sentiment, the pleasure of seeing the word conciliation" in this Bill, to lead them away from
the practical issue of how they are to justify the federal authority being intrusted with this great power. 10
And
Sir JOSEPH ABBOTT.-If the insertion of these words has the effect of satisfying a sentiment which we
know largely prevails throughout a certain class in Australia-if they are only idle words, what harm will be
done by inserting them in the Bill? Mr. Symon argued, in reference to the insertion of those words, more as if
be were pointing out what the Bill would or would not be, rather than as on a proposal to give the 15
Commonwealth power to deal with this question. I can really see no harm in giving the Commonwealth
power to deal with the question. Mr. Trenwith has referred to the fact that very often these industrial
disputes are easily settled if the parties to the disputes can be brought together. Mr Symon asks-"How can
you enforce an Award or determination against 100,000 working men?" Well, we know that it is
absolutely impossible to do so. But we also know that the working men, at least in this 19th century, are just 20
as amenable to public thought and reason as anybody else, and are just as amenable to public opinion as the
masters themselves. And, although these awards cannot be enforced against them as a matter of law, I
can say, from my own experience, that I believe they will be accepted by both parties. I have witnessed the
action of conciliation courts sitting in Dunedin. On one occasion a dispute arose, I think, between the builders
and the carpenters, and the matter was referred [start page 198] to the conciliation court. An award was made, 25
and the men's unions universally condemned that award, but every one of them loyally submitted to it, and
business went on without any of those quarrels which might have disorganized the whole of that particular
trade. I am not quite sure whether the dispute was in the building trade or amongst the shoemakers-it was
either the one or the other.
And 30
Mr. DOBSON (Tasmania).-
If a court or tribunal of this kind were established-and I do not care how simple or how powerless it is-it will
at least be a step in the right direction. I may illustrate what I mean by reminding myself, and telling the
Convention, of the first fight I had when a boy at school. The boy was about my own size.
Mr. BARTON.-Did you only have one? 35
Mr. DOBSON.-Yes, only one stand up fight. I do not admit for one moment that I was getting the worst of
[start page 205] it, but I do admit that when a mutual friend came and took my opponent's arm and led him
away in one direction, and took my arm and led me away in another direction-
Mr. PEACOCK.-You were very glad?
Mr. DOBSON.-Well, I was not sorry. I take it that there is no body of persons in the world whom it would 40
be more difficult to persuade that they were wrong than a number of employees fighting for what they think
to be right and just on behalf of themselves, their wives, and their children, against their employers. I do not
see the common sense or wisdom of refusing to the Federal Parliament power to create some simple tribunal
whereby the employees on the one hand, and the employers on the other hand, could be led away in the
peaceful fashion I have just described, and a strike averted which would be fraught with danger to the whole 45
of the Australian Continent.
Mr. LEAKE (Western Australia).-When this question was before the Convention in Adelaide I had no
opportunity of casting my vote for or against the proposal, because with other members of the Western

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Australian delegation I had already returned to my own colony. For that reason, I do not wish to give a silent
vote upon this occasion. It is my intention to vote against the amendment, because I am impressed with the
argument that this is a matter not so much for the Federal Government as for the states Governments. The
contention that to insert the proposed words would do no harm because they are more idle words does not
seem to me to be based upon sound reason. If honorable members have been impressed by the warning given 5
to us by the Premier of New South Wales a few days ago, they will see that words of this sort are not inserted
in the Constitution. If this power is given to the Central Government the states Governments will be deprived
of the right to legislate upon the subject.
Mr. DOBSON.-Not at all.
Mr. OCONNOR.-When the power of the Federal Government is once exercised of course it will. 10
Mr. BARTON.-The moment the device of extending a dispute so as to put it under the jurisdiction of
the Federal Government is adopted the state Government will be unable to act.
And
Mr. HOWE.-There would be no occasion for the federal authority to interfere.
Mr. HIGGINS.-The federal authority could not interfere. The dispute must be one extending beyond 15
any one state."
Mr. BARTON.-That gives a direct incentive for the extension of the dispute.
And
Mr. SYMON.-On the other hand, what would prevent an employer from shutting up his shop if an award
were given against him? 20
Mr. GLYNN.-Yes. Would a mandamus be issued if he did not open his shop?
Mr. HIGGINS.-You can impose a penalty for disobedience. Of course, while you can lead a horse to the
water you cannot make him drink.
Mr. GLYNN.-I would not lead a horse to the water if he were not thirsty. We have seen the growth of
voluntary machinery, which 25 years' experience in England has shown to be efficacious, and by substituting 25
for it the principle of compulsion you must, if you do not nip in the bud, at any rate interfere with the early
growth of the principle of conciliation and arbitration.
Mr. HIGGINS.-If the principle is bad the Federal Parliament will not adopt it.
Mr. GLYNN.-The honorable member must be an innocent in political life if he thinks that.
Mr. HIGGINS.-Why should not the Federal Parliament be as wise as we are? 30
Mr. GLYNN.-No doubt, but that is not going very far. On a simple point like this, we have had something
like 25 different opinions, so that there are two sides to the wisdom of Parliament. The bulk of legislation
during the last 30 or 40 years has simply repealed the efforts of earlier legislators who worked on
philanthropic lines. I should be prepared to vest this power in the Federal Parliament if I thought that it would
do any good or that it would not do harm, because I think we ought to arm the federal body with any power 35
which may be efficacious for the purposes of good government, and which will not annul the existing rights
of the states. But I am of opinion that you will tie the hands of the state by enacting legislation of this
character, because it will be impossible to say where the line of demarcation is. [start page 208] There may be
a strike in one colony, and there may be manifested sympathy and support towards the strikers from other
colonies without an absolute strike taking place in those other colonies. It will then be difficult to say whether 40
the manifestation of that sympathy and that supply of funds does not constitute an extension of the dispute. A

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provision of this sort would, in fact, be full of difficulties of interpretation, and, instead of having a settlement
of disputes, you may have a complication. Further than that, some lawyer might apply to the court for a
mandamus to prevent the Federal Parliament going into the matter at all, on the ground of possible
interference with state rights. For these reasons I shall be found voting against the amendment.
Mr. REID.-In the first instance I think that the onus should be placed upon those who wish to add to the 5
subjects on which the Federal Parliament is to have jurisdiction of giving reasons in favour of their proposals.
No part of this Bill has received more careful consideration from the various bodies who have dealt with it
than this particular clause, so that when an honorable member wishes to introduce a new subject of federal
jurisdiction, the onus is placed upon him of showing that there is some distinct advantage to be gained by it. I
have no doubt that those who are in favour of the amendment moved by the honorable member (Mr. Higgins) 10
do believe that a distinct advantage would be gained by making this a federal subject. There is a tendency in
these days, especially among those who are very anxious to bring about an amelioration of all the ills which
flesh is heir to, to intrust knotty problems to some new authority, in the pious hope, that matters which human
wit has hitherto never been able to settle satisfactorily will be settled by some such tribunal. I fear that this
attempt to settle the matter of trade disputes by referring them to some new jurisdiction will only lead to an 15
extension of the evil. Because we must see at once that this proposal has a very serious disadvantage in it.
The honorable member does not propose to hand over all trade disputes to settlement by the Federal
Parliament. He hands over only those trade disputes which extend beyond the limit of one state. Cannot we
see that giving any such power must result in a most unfortunate state of things arising? For instance, let us
suppose that there are several sets of laws in existence dealing with this subject-one in a particular state, 20
which are not interfered with by any federal law; different laws in each of the other four states; and then a
federal law which may be radically different from all the others. Just consider the temptation under those
circumstances to shift the venue of a particular trade dispute from a particular state. If the employers in the
trade dispute in a particular state think that the federal law and its administration are more likely to suit them,
look at the incentive there is to extend the mischief and evil into another state, or more than one other state, in 25
order to shift the venue of the tribunal which will try the dispute. There is at once, I say, an incentive to shift
the venue if the employers think that the federal tribunal will be likely to suit them best, and they will be
tempted to extend the dispute in order to suit their own personal interests. So it will be with the other side-the
working men-if they think that, the federal; tribunal will best suit their interests.
Mr. HIGGINS.-As if the Federal Parliament would not deal with such a case! 30
Mr. REID.-I cannot conceive of a Parliament which could deal with contingencies of that kind.
Mr. HIGGINS.-It is quite possible for the Federal Parliament to draw the line, and to allow the tribunal to
decide whether a particular case referred to it is a bona fide dispute pertaining to one colony or not.
Mr. REID.-We are drawing the line here.
[start page 209] 35
Mr. HIGGINS.-We are drawing no line here.
Mr. REID.-But we say that the dispute is only to be dealt with by the Federal Parliament when it is a
dispute existing in more than one state.
Mr. HIGGINS.-Yes, that is so.
Mr. REID.-That is all I am addressing myself to; and I am showing that such a provision will tend to 40
enlarge the area of trade disputes, for the very reason that in a given dispute the employers might be disposed
to extend the working area, or the men might be disposed to extend the area, in order to get the advantage of
having the dispute settled by the federal tribunal. Now, I am one of those who quite believe in the compulsory
investigation of trade disputes. I have quite come to that conclusion. But a proposal that the Federal
Parliament shall provide for the compulsory investigation of trade disputes passes my comprehension. It 45
seems to me that any such proposal would put a premium upon one side enlarging the area of the mischief.
Under all the circumstances, it seems to me that it will be better for each state to deal with this matter locally.
I am, to a considerable extent, in sympathy with those who are agitating upon this matter, but I think that it is

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one that can be best dealt with by means of laws passed by the various states. While I am personally in
favour, however, of the compulsory investigation of trade disputes in particular states, I am opposed to a
compulsory federal investigation of local trade disputes.
And
Sir EDWARD BRADDON.-And as in the case of wages, which necessarily vary according to varying 5
conditions within a state, so it must be remembered that there are many other matters which are largely ruled
and governed by local conditions. I see the matter just as strongly now as I did in Adelaide. I see that it is a
matter which should be left to the adjudication of the states; and I would urge further that, by the interference
of the Commonwealth Government in matters affecting the different states as to industrial disputes, there will
be a probability, possibly more than a probability, of very serious friction arising between the Commonwealth 10
and the states. When the honorable member who moved this amendment rose, I quite thought that he [start
page 215] rose with the intention of withdrawing it. After seeing that that amendment, moved by himself as
an extreme liberal, and supported by some as extreme liberals, came to be supported by extreme
conservatives, or I may say tories, I was all the more confirmed in that idea when he admitted that the support
of my right honorable friend (Sir John Forrest) almost convinced him that he had better leave this matter 15
alone.
Mr. MCMILLAN.-Perhaps he will withdraw it now.
Sir EDWARD BRADDON.-I thought he would then, and I hope be will now withdraw it as something
which will not be to the interest of labour or to the interest of the states.
Question-That the new sub-section proposed to be inserted be so inserted-put. 20
The committee divided-
Ayes. ... ... ... ... 22
Noes. ... ... ... ... 19
Majority for the sub-section ... 3
And 25
Mr. BARTON (New South Wales.)-I might mention as to this sub-section that there is a difference
between its language and the language of the corresponding sub-section in the Bill of 1891. The difference is
this:-In the Bill of 1891, after the words legislative powers" there came the words with respect to the affairs
of the territory of the Commonwealth, or any part of it." It was considered unnecessary to retain those words,
because the whole scope of the legislative authority is that the legislation should be for the peace and 30
good government of the Commonwealth itself. Inasmuch as the Commonwealth cannot make any laws
except for the peace, order, or good government of the Commonwealth itself, we thought that it could
not make laws except with respect to the affairs of the territory of the Commonwealth or any part of
it.
And 35
Mr. BARTON (New South Wales).-I think the original intention of this sub-section was to deal with
the affairs of such persons of other races-what are generally called inferior races, though I do not know
with how much warrant sometimes-who may be in the Commonwealth at the time it is brought into
existence, or who may under the laws of the Commonwealth regulating aliens come into it. We have
made the dealing with aliens, which includes a certain degree of coloured immigration, a power of the 40
Commonwealth, and we have made the dealing with immigration a power of the Commonwealth, so
that all those of the races who come into the community after the establishment of the Commonwealth
will not only enter subject to laws made in respect to their immigration, but will remain subject to any
laws which the Commonwealth may specially devise for them. There is no reason why the
Commonwealth should not have power to devise such laws. 45
And

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Mr. WISE.-Yes, it would, because the Commonwealth would have no power to pass any law relating
to the immigration of any section of the community unless they were aliens.
And
Mr. BARTON.-Because the powers in clause 52 are all concurrent powers, and these are all exclusive
powers. 5
Mr. DEAKIN.-I understood that was the difference, and a glance at the following two sub-sections of
clause 53 shows that they are matters upon which the Federal Parliament will have sole authority, and upon
which, naturally enough, the local Parliaments never could have, or expect to have, any authority. But,
although this provision is linked with them and placed in the exclusive clause, it deals with questions which
are being dealt with, which have been dealt with, and which probably in the future will be dealt with by the 10
several states.
Sir EDWARD BRADDON.-And in which aspects they can only be dealt with by the several states.
Mr. DEAKIN.-If so, this sub-section has found its way into the wrong clause, and should be included in
clause 52 rather than in clause 53. We have Acts in some of the colonies relating to the Chinese; in other
colonies there are, or may be, Acts relating to Afghans. In the northern colonies there are statutes relating to 15
kanakas. All this legislation is [start page 231] in existence at present, and the leader of the Convention
admits that, until the passing of an Act by the Federal Parliament dealing with these people, the several Acts
of the several Legislatures relating to these several peoples would remain in force.
And
Mr. KINGSTON.-Section 100 preserves the existing legislation. 20
Mr. DEAKIN.-Yes; and section 101 provides that when a law of a state is inconsistent with a law of
the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be
invalid.
And
Mr. BARTON (New South Wales).-If this is left as an exclusive power the laws of the states will 25
Mr. BARTON.-Not after this power of legislation comes into force.
And
Mr. BARTON.- 30
Now, the preservation of every inch of the shores of Australia from immigration of the kind indicated,
except to a certain limited extent, is one of the most desirable powers to place in the Constitution
And
Mr. BARTON.-
. If it is necessary to give the Federal Parliament power to make laws for their regulation, not applying 35
to the rest of the people of the Commonwealth,
And
Mr. BARTON.-
The laws which at present pertain [start page 233] in the states with reference to these people will
remain with nothing in them which is against the interests of the Commonwealth, unless the 40
Commonwealth at once legislates.
And
Sir GEORGE TURNER (Victoria).-I trust the leader of the Convention, will carefully reconsider his
position, and the apparently strong views be holds with regard to persons of foreign race. I agree with
Sir Edward Braddon, and other honorable members who have spoken, that when these people are once 45
admitted to Australia their control and management should be strictly a local affair. It is not a matter with

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which the Federal Government should interfere. The Government of this and of other colonies should
have full power to make such laws relating to health, to factories, and to the licensing of these persons
as they may deem to be fair, just, and reasonable. The great difficulty I see with regard to this clause is in
connexion with the making of the power exclusive. If we put this provision in clause 52, as soon as the
Federal Parliament chose to exercise its power to legislate, the state laws now in existence would cease to 5
exist.
Mr. KINGSTON.-Does the honorable member say that they would lapse?
Sir GEORGE TURNER.-Yes, if they were inconsistent with the federal laws.

And 10
Mr. OCONNOR (New South Wales).-
. I should like, however, to remind the honorable member of this fact: In the first place, where any
local Parliament has made laws, those laws are continued by clause 100, and, as a matter of fact, most
of the Parliaments have made laws in regard to these matters. The point at issue is: Is it desirable that the
state should have power to go on making separate laws dealing with aliens until the Federal Parliament shall 15
legislate?
Mr. ISAACS.-Why not?
Mr. OCONNOR.-If the Federal Parliament is endowed with this power absolutely, there is no doubt that
pressure will be brought by all the states to cause that body to legislate upon this matter at once, and it will
legislate upon it. But if the states have power to deal with these matters locally they may in many cases 20
avail themselves of this power, and when the Federal Parliament comes to deal with the subject, and to
apply an uniform law, it will be met by the vested interests which have been created by the laws of the
states. I say that we should have as few difficulties of that kind as possible. Let us deal with these matters as
they exist at the date of the establishment of the Commonwealth. Where laws exist at the time of the
adoption of this Constitution they will be preserved; but do not let us give power to the states to make new 25
laws which will create new difficulties and complications. That is my reason for differing from the view of
Sir George Turner that this provision should be transferred from amongst the exclusive powers of the Federal
Parliament to the powers conferred under clause 52. I should like to add a word in regard to the suggestion of
the honorable and learned member (Mr. Wise). No matter what the necessity for uniformity in these laws may
be, the honorable and learned member says that you must wait until some law has been made by the 30
Commonwealth in regard to these particular races. But why should we wait? What possible connexion is
there between the making of a law preventing aliens from entering the state and the making of a law to
control their mode of living while in that state? I can see no necessary connexion between the two. It
seems to me that it would be hampering the power of the Federal Parliament to make it a condition precedent
to legislation with regard to aliens within the borders of the Commonwealth, that it should legislate with 35
regard to outside matters. For instance, if you wish to deal with the question of legislation regarding
Chinese or Japanese actually here, there would be very little difficulty, but if you wish to make a law
dealing with [start page 235] their introduction into the state, you may be brought face to face with the
obligations of treaties entered into by Great Britain and other difficulties of that kind which cannot be
surmounted. 40
Mr. ISAACS.-The same thing exists now.
Mr. OCONNOR.-That does not apply to dealings with races within your own territory. When other people
come within your borders they must submit to your laws.
An HONORABLE MEMBER.-These laws must relate to the time when they are within your territory,
because the distinction is drawn between them and the general community. 45
And
Mr. TRENWITH (Victoria).-
Take the colony of Victoria. We have legislation in the form of a new Factories and Shops Act, which
affects the Chinese in a manner such as no other colony has yet thought it necessary to affect them. It

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may happen that no other colony will think it necessary to legislate in that way. But there can be no
reason why the legislation which is thought necessary by the Victorian people should not be permitted
to continue in Victoria.
And
Mr. TRENWITH.-It seems to me that immediately the Constitution is adopted the local Parliaments 5
can no longer carry any legislation into existence upon this subject-that they cannot perform one act of
legislation after the Constitution is effected.
Mr. DOBSON.-Read clause 100. They can go on altering or repealing, if they like.
Mr. TRENWITH.-It seems to me that if you use in this Constitution the term exclusive power" that means
that you exclude all others, and once that power is created there is no other power to legislate. I confess that 10
in a Convention such as this, where we have so many and such able lawyers, I speak with great diffidence
upon such a subject.
Mr. ISAACS.-Clause 100 would not permit new legislation on the subject.
And
Mr. WISE (New South Wales).- 15
. I always thought that the guiding sentiment amongst trades unions in Australia was [start page 239] a
desire to give a larger power to the Federal Government of dealing with the immigration and
emigration of races whose presence we might for one reason or another think undesirable-a larger
power than can be now exercised by any single state. If my ears did not deceive me, I heard the Right
Hon. Sir George Turner say they did not wish to give executive power to the Federal Parliament to deal 20
with this question.
And
Mr. ISAACS.-The difficulty is this: If the power is put in clause 52 the Federal Parliament can deal
with the subject, and, if the Federal Parliament deals with the subject, that law will be paramount, and
no state can legislate against it. 25
And
Sir JOHN FORREST (Western Australia).-The difficulty, to me, seems to be as to what is meant by the
word affairs." Perhaps the leader of the Convention will tell us. I take it that it means the control of those
people after they have arrived in Australia. If it was intended to mean their introductions I have no doubt that
the most of us would be in accord, because I think every one is of the opinion that the introduction of 30
people of any race, especially coloured races, is a matter which should be in the control of the Federal
Parliament. I take it that the word affairs" would mean the control of alien races after they have arrived in
this continent. In my opinion the control of the people, of what ever colour they are, of whatever nationality
they are, living in a state, should be in the control of the state, and for that reason I should like to see this sub-
section omitted. 35
MY. SYMON.-Why did you vote for the question of conciliation and arbitration being a federal subject
then?
Sir JOHN FORREST.-I am not dealing with that question at this moment. I do not see myself that
this sub-section is necessary, because I hold that if it is passed the control of every one living in the
state should be within the province of that state. 40
And
Sir JOHN FORREST.-Yes, unless they can read and write English they certainly can be excluded. I
think that there is no desire on our part to do anything to encourage either in Western Australia, or any other
part of Australia, undesirable immigrants. I take it that under clause 52 immigration is a subject within the
power of the Federal Parliament to deal with. I would not mind if it were one of its exclusive powers. There 45
may be difficulties in regard to the introduction of persons who are not altogether desirable. But I cannot for
the life of me see why we should desire to give to the Federal Parliament the control of any person,

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whatever may be his nationality or his colour who is living in a state. Surely the state can look after its
own affairs.
And
Mr.-KINGSTON.-No, the local laws are preserved under section 100.
Mr. REID.-Will that cover the difficulty? We will suppose that this Constitution has been created. 5
Supposing the Imperial Parliament has originated over this continent one executive power, having exclusive
authority to make laws [start page 242] for certain subjects. It is a very serious question whether, the moment
that power comes into force, the existing laws remain.
Mr. BARTON.-They stand to the extent to which they do not conflict with the federal law.
And 10
Mr. REID.-If it does, I will be perfectly satisfied, but I am afraid the words of the provision will not apply
to the clause which speaks of the exclusive legislative powers of the Commonwealth. Clause 100 speaks of
All laws in force in any of the colonies relating to any of the matters declared by this Constitution to be
within the legislative powers of the Parliament of the Commonwealth." Well, these are powers which are
declared under this special section to be within the exclusive" power of the Commonwealth. 15
Mr. ISAACS.-Therefore they are within the power of the Commonwealth.
Mr. REID.-If that is so, I have no objection to the clause as it stands.
Mr. ISAACS.-It prevents you amending your state laws.
Mr. REID.-There is a concurrent power as to the introduction of aliens which is available to the state.
Mr. ISAACS.-The concurrent power does not exist as to new legislation. 20
Mr. REID.-There is a concurrent power, first of all, with reference to immigration and emigration of
aliens.
Mr. ISAACS.-Not after the Federal Parliament has legislated on the subject.
Mr. REID.-I quite agree; but that is the whole question. All the legislation we are aiming at is legislation
preventing the introduction of certain races of aliens and their becoming members of this community. 25
That is the salient point. Whilst they are members of the community we can deal with them in a very
ordinary way.
Mr. ISAACS.-Not under that clause, because its power is exclusively in the Federal Parliament.
Mr. REID.-But you say that the laws in force in any state at the date of the commencement of the
Commonwealth will remain in force until the Commonwealth Parliament legislates on the subject, and 30
if that is so-if those laws are not annulled by the creation of the Commonwealth-I am quite satisfied to
leave the Bill as it is, because if the matter is a pressing matter at all I feel perfectly confident that the
Federal Parliament will deal with it by having it brought exclusively within their jurisdiction.
Mr. TRENWITH (Victoria).-I want to give an illustration which seems to me to prove the possible danger
of leaving this clause as it is. In Victoria we have legislated on this question. We passed a tentative measure 35
for three years. In one of its parts that measure deals with this question of aliens. At the expiration of three
years we shall desire to legislate on the subject again. If experience proves that measure to be a wise one,
we shall desire to renew it, which, of course, will be making a new law; but if this clause is carried as it
stands we shall then be too late.

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Mr. BARTON.-Well, you had better make haste, and renew that law before the expiration of the
period within which you can re-enact such a law.
Mr. ISAACS.-But we have to wait for three years to get the experience of the law.
Mr. ISAACS.-But they have already passed a law, and I take it that if you can get an absolute majority of
both Houses directing the referendum, there is no practical difference between that and an absolute majority
again passing the law. Because they virtually passed the law as far as they could. Therefore, it seems to me
there is no advantage gained from the stand-point of desiring a better means of getting an amendment of the
Constitution. Then, I feet that it is open to the destructive criticism that it makes the law retrospective, and 10
after the court, possibly the Privy Council, has decided that the law is ultra vires, and people have acted on
that decision, being compelled to, act on that decision, or being compelled to refrain from acting on the
decision of the court, as the law is positive or negative; then we should have under this referendum a law
made operative as from the time of its original passing, and penalties, both personal and pecuniary, might be
incurred through no fault of the individuals who had incurred them. That seems to me to be a defect to which 15
we cannot close our eyes.
Mr. WISE.-Besides, it would punish everybody who took the advice of a man who interpreted the law
properly.
Mr. ISAACS.-It compels everybody who has obeyed the decision of the higher courts to act, or refrain
from acting. That is a position which none of us would willingly get into, and the retrospective action is 20
wrong.
And
Mr. ISAACS.-
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, 25
quite unintentionally on the part of the honorable member, a gross injustice.
And
Mr. ISAACS.-There is one additional difficulty, which my honorable friend (Dr. Quick) has suggested.
The Constitution would be deemed to be enlarged by the passing of a law, but if you wanted to alter or amend
it you could not do so. 30
Mr. HOLDER.-That is the point Mr. O'Connor mentioned last night.
Mr. BARTON.-That is to say that, the law having been passed, and the Constitution having been
enlarged, the Constitution has been amended.
Mr. ISAACS.-That is all. You could not alter a word of it.
Mr. BARTON.-No, you would have to take the question of whether the Constitution was really amended 35
or enlarged; but the decision might mean that the Constitution did not require enlargement at all.
Mr. BROWN.-It appears to me that, in his opposition to the amendment, the honorable member is not
content to leave the matter to the Federal Parliament. If we do not adopt the amendment proposed by the 40
leader of Convention the practical result will be that the uniform franchise must be based upon the
broadest possible suffrage now existing in any state.
And
Mr. HOWE.-
The vigorous life of the Commonwealth depends on the vigorous life of the several states that compose 45
the Commonwealth, and I should be sorry to see any proposal carried that would interfere with the
right of the people to adopt any franchise.

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st
And
Mr. DOBSON (Tasmania).-If the Convention desires some compromise as between the clause as it stands
and the amendment proposed by our leader, I think that Mr. Glynn's suggestion is an admirable one. There is
an objection to the clause which makes me rather incline to the amendment of Mr. Barton. We ought not in
this Constitution to interfere more than is absolutely necessary with state rights and state affairs. The 5
clause as it stands will have the effect of exerting an influence in state politics.
And
Mr. SYMON.-
In Tasmania, they have had only one appeal, which took one year and nine months to decide, and, in Western
Australia, the average time occupied in deciding appeals for 23 years has been two years and one month, and 10
for ten years two years and four months.
Mr. BARTON.-Does not the feeding bottle question come in here? These are [start page 347] rather
longer periods than an ordinary baby requires.
Mr. SYMON.-Yes. The expense of these delays is, of course, enormous.
15
Mr. BARTON (New South Wales).-The suggested amendment would simply go to this extent: That if the
Parliament of the Commonwealth wish to make a uniform suffrage, it would be of necessity that that
suffrage should be an adult suffrage-that is to say, that it should include womanhood suffrage-and that, 20
until the Parliament of the Commonwealth so legislated, the existing legislation of any colony would be
preserved, together with such extension, but not beyond adult suffrage, as might be established. I think, on
the whole, that I might consent to that amendment. I therefore withdraw my own amendment and accept
this.
And 25
Mr. BARTON.-Is not the right process to alter the word "qualification" to "right"?
Mr. KINGSTON.-Qualification means registration.
Mr. BARTON.-If the person has a legal right, he has to retain that legal right. Supposing he lost the legal
right, but in some mysterious way retained the qualification, it is not intended that the law should help him? It
is only intended that the law should help him if he has a legal right. I should say that, unless there is some 30
reason given for what we did in Adelaide, which I do not recollect at this moment, the word "right" would be
the proper word to use.
Mr. ISAACS (Victoria).-In our Electoral Act a difference exists between the right to vote and the
qualification. A man is qualified to become an elector.
Mr. KINGSTON.-This is a limitation on the right to vote. 35
Mr. OCONNOR.-Suppose a man has a right to vote in some colony by virtue of property. While the
qualification continues to exist you cannot take away that right.
Mr. ISAACS.-Suppose he has the right to vote by virtue of ail elector's right, and that by some accident be
does not renew his elector's right for a day. Is he to be deprived of his vote because he takes out an elector's
right the day afterwards? The qualification exists, but the right to vote does not. 40
Mr. BARTON.-Would you mind putting that again?
Mr. ISAACS.-A man is qualified to become an elector. He has not the right to vote until certain conditions
are fulfilled; he may have to register, or be may be struck off the roll through some accident. His right to vote
is gone through some accident, but his qualification continues. He is a person whose right would not be
preserved under this clause, because it applies to the individual-the elector. 45

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Mr. BARTON.-If he loses the right in his own state by his own negligence, is it not right that he should
lose the right also in the Commonwealth?
Mr. ISAACS.-He may lose it without negligence; he may lose it without any fault of his own. That has
been the case with tens of thousands in Victoria.
Mr. DOBSON (Tasmania).-I was going to put the converse case. In Tasmania, and I suppose in every 5
colony at every election, there are a number of persons whose names are on the roll, but who have lost their
qualification. As our Electoral Act makes the roll the evidence of the qualification, you find a number of men
who have sold their property to somebody else whose names remain on the roll, but who have lost their
qualification, while the name of a man who has bought a property just after the roll has been made up,
although he has the qualification, is not on the roll. I think we ought to consider whether the word 10
"qualification" is to remain in the clause, because you may have a number of persons on the state rolls who
have lost their qualifications, and who therefore, under this clause as it stands, would not be able to vote in
the Commonwealth, but they would have a vote in the state. You will have a roll which governs all state
elections, but which does not apply to Commonwealth elections, and you will have to direct an officer
to go through the different state rolls, and see whether a man is entitled to vote for the Commonwealth, 15
if you keep in the word "qualification."
In particular in an election year it is important to accept that the High Court of Australia should
be better aware what section 41 stands for, and that as was stated; Qualification means
registration. then a person who has a right to vote cannot be denied by the Commonwealth
of Australia to vote merely because he had not registered with the Commonwealth electoral 20
commission as he could still, so to say, roll up at election time and vote if he is qualified to vote
but not registered to vote for federal elections. Neither can the Commonwealth of Australia close
the rolls for registration as a person can register in any State for State elections and Section 41
then preserve his right to be entitled to vote in federal elections regardless that the
Commonwealth of Australia (albeit unconstitutionally/illegally) has closed the rolls. What ought 25
to be understood is that not Commonwealth registration but State registration determines if the
person is entitled to vote within Section 41 of the Constitution.

While this voting issue (referred to also below) might be seen as getting away from the industrial
Relations matter, it is essential to understand that the Framers of the Constitution debated issues 30
and also made clear that

until the Parliament of the Commonwealth so legislated, the existing legislation of any colony would be
preserved, together with such extension, but not beyond adult suffrage, as might be established.
35
Now, this did not mean that State provisions then no longer were applicable, rather that the rights
obtained by State citizens have to be absorbed in new federal law enacted by the Commonwealth
of Australia.
Again;
If we do not adopt the amendment proposed by the leader of Convention the practical result will be 40
that the uniform franchise must be based upon the broadest possible suffrage now existing in any
state.

During the Constitution Convention Debates the same rhetoric was used regarding other issues
within Section 51, where it was time and again made clear that States were entitled to legislate 45
and their legislation would be preserved under Commonwealth legislation but the State could no
longer amend its own legislation once the Commonwealth had commenced to legislate.

Mr. BARTON.-You are bound to read the two provisions together, and avoid a repugnance, if
possible, and I think you could avoid a repugnance.

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Where the State already has legislation on foot and then desire to legislate on the same subject
matter is then must avoid repugnance, and as such can only legislate broadening or at the least
providing for the same rights as existed under the various State legislative provisions, but not
cause limitations. 5

Mr. HIGGINS (Victoria).-I should like to remind my honorable friend (Mr. McMillan) of what took place
at Adelaide. If he looks at the report of the proceedings of the Convention there, page 732, he will see that 10
Mr. Holder clearly expressed his views in the following words:-
What I wish is that these rights should be preserved which have been acquired up to the time that the
Commonwealth makes its franchise.

Mr. BARTON:
I should have liked to see added to this, unless indeed it is intended to be included, something which will
specify that the actual territory of any existing province shall not be subject to any kind of diminution or
absorption for the purpose of constituting new provinces, except with the consent of the legislature of the 20
province affected. That, sir, you may have intended in this resolution. If that is stated to be so, I am perfectly
satisfied; but I am also equally satisfied that we are not likely to base federation on the good-will and union
of the colonies unless a guarantee of that kind be provided. With respect to the question of the powers,
privileges, and territorial rights of the existing colonies, I said that I would endeavour to consider it in
connection with the question of the parliament alluded to in the first resolution under the second heading. I 25
take it that this first resolution must be an essential of any just union of the colonies. Unless, indeed, these
territorial rights and privileges are conserved, federation would appear to be well nigh impossible; and I think
I way be pardoned for saying that it seems an obvious construction that the powers and privileges and
territorial rights mentioned here are all those state rights as to which the hon. member, Mr. Deakin, yesterday
asked the question, "What are the state rights?" The state rights, it seems to me, are claimed by rather a 30
narrow term. It is state interests we have to deal with, and unless the state interests are effectually
preserved in a federal scheme, that scheme will be worth nothing, because it can be worth only so much
as consists of the goodwill of the parties to it. If that is so, all those state rights which are not to be specially
assigned to the general authority must be religiously preserved to the various states, and it will, therefore, be
essential that the constitution provide-and I take it as a necessary consequence that the constitution shall 35
provide-for a legislative body which, in addition to the functions of a house of representatives, and in addition
to the functions of a second chamber, will also be the guardian of those individualities, those state rights or
interests. If those state rights or interests are threatened in any legislative proposal, whether or not it is
contained in a money bill, they will be under the especial care of the federal senate; and if state rights are
threatened, whether in a money bill or not, it seems to me that it is not good argument to fall back upon the 40
representative principle to the extent of saying that there is only one representative legislature, and, therefore,
only one which can deal freely with questions of money and taxation if the very spirit upon which the
federation rests is threatened by any scheme in a money or taxation bill.
Mr. DIBBS:
" There may be something more dignified in the use of the word "state." We are not 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." 50
And
Mr. DIBBS:

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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 enforcing such surrender is placed in the hands of the federal government, then your 5
provinces or your states will be no party to the proceeding.
Mr. GILLIES:
This question is in the minds of many people who are opposed altogether to the establishment of federation. 10
One of the first reasons they give is, "Why, if New South Wales goes into this federation, what will happen?
South Australia is anxious to have the silvermines; Victoria is anxious to go up to the Murrumbidgee;
Queensland is anxious to have some of our lovely flats." Now, is not this a pity, when we are engaged in such
an important work, the principles of which were considered by all the legislatures of this continent without a
syllable having been hinted on that subject, or, if hinted, always disallowed, and without a syllable or a hint 15
being contained in these resolutions, where, on the contrary, it is deliberately set out that all the rights now
possessed by the various colonies entering the union are to be preserved, except such as may be necessary to
hand over to the federal parliament. And to hand over in what way? To hand over, not generally, not using
general language that might take in a whole host of things that people did not intend; but using
language so specific that only for the purposes of federation, and no other, shall these lands be taken, 20
and then only small pieces, and with the consent of the state parliament. When we are told in this way
that our objects are very deep and profound, but cunningly veiled and concealed-that we desire no less than to
take a large portion of the territory of New South Wales-I say it is not fair, it is not just, that any gentleman
should, even by the use of language, mistakenly create the idea that such is the intention underlying the
resolution, and the intention in the minds of members of this Convention. It is well that wherever necessary 25
we should emphasise the fact that the idea to which I have referred is a mistake, and that no such thing was
ever contemplated.

Sir SAMUEL GRIFFITH:
But the powers of the parliament of the commonwealth to exercise any of these functions are expressly
limited so that they cannot be put in force without the consent of the parliament of the state affected.
The rights of the state in regard to territory and everything else are preserved absolutely intact. Nothing can
be done except by the consent of the states themselves. 35

Dr. COCKBURN: That is to say, that those who want unification will not abandon their aim!
Sir SAMUEL GRIFFITH: I do not want unification. I strongly object to it. I am perfectly satisfied that 40
under this constitution there will be no unification, because state rights will be perfectly preserved. That is
my opinion, at any rate. I do not propose to make any further observations. I will merely repeat that if
members of the Convention really desire a federation they will not vote against the only possible means of
obtaining it.
45
Mr. HOLDER:
The first of these principles is this: that we are assembled to obtain a Constitution which will give us a true
Federation, and I would like to add that what I think we want is it true. democratic Federation. 50
Mr. ISAACS: Hear, hear.

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Mr. HOLDER: We want something which shall have two parts, which shall be democratic in the fact that
it is based on the people's will, and that in it every personal unit of the population shall be recognised and his
individuality preserved, and that, on the other hand, shall be a true Federation, in that each State unit shall
also have its individuality preserved and its independence assured. I do not think we can afford to dispense
with either of these two things. We cannot afford to dispense with the guarantee of the personal individual 5
rights of every citizen of the Commonwealth, nor, on the other hand, can we afford to dispense with the
individual or separate rights or interests of each of the separate States-if my hon. friend Mr. O'Connor prefers
that term. We cannot neglect to provide for their due recognition. The next principle I shall lay down is this:
That in dealing with this federal authority we should confer on it no powers which it cannot exercise
more wisely and well and effectively than the States can exercise those powers. I would even go a step 10
further, and lay down as the principle which should govern our conduct: To the States all that is local and
relating to one State, to the Federal authority all that is national and inter-State. I wonder whether I can secure
the absolute adherence, no matter where it may lead us, of a majority of this Convention to that principle: To
the State everything that is local and relating to one State, to the Federal power everything that is national
and of inter-State importance. 15
And
Mr. ISAACS:
It was pointed out by what I may term the master minds of the Convention that there was no danger to the
smaller States, because the State rights, considered as rights in a lawyer's sense, are undoubtedly guarded and
preserved by the Constitution, and, as Mr. Wilson, of Pennsylvania, almost in the words of one of the 20
representatives here, said, it is not the question of State rights that was so much at issue, as the question
of State interests.

Mr. BARTON: I am coming to that in a minute. We have not only to attempt to safeguard State rights by
placing provisions for that purpose in the Constitution, but we must also take great care to make the
machinery as fully applicable to the preservation of those interests which are erroneously called State rights
as if they also were set down in the bond.
And 30
Mr. BARTON:
This is the gist of the matter, that there are two different entities to be preserved. They are both necessary to
constitute a Federation. One unit is the individual citizen, and the other unit is the State entity. We are bound
to confess that both the individual citizen as represented in the National Assembly and the individual State as
represented in the States Council must have their powers, and you must provide so that in each case the 35
majority of the units shall prevail. I do say that you must so protect your Constitution that you will not have a
majority of citizens dominating the State interests, or the State interests dominating the national life; but it
must be so constituted that the interests they each represent are firmly embedded in the Constitution, and you
must leave the future to the evolution of those two legislative bodies, which command the respect of both
entities of the Federation, namely, the majority of the citizens, and the majority of the States. At the same 40
time attacks have been made in the course of debate by the representatives of both extremes.

Mr. O'CONNOR: Sir Samuel Griffith went on to say: 45
I do not want unification. I strongly object to it. I am perfectly satisfied that under this constitution
there will be no unification, because State rights will be perfectly preserved. That is my opinion, at any
rate. I do not propose to make any further observations. I will merely repeat that if members of this
Convention really desire a Federation they will not vote against the only possible means of obtaining it.
Mr. BARTON: What satisfaction will there be to members to be in time to come dragged back from the
position they have taken up by the force of public opinion, as expressed by the press, by public men, and by
the Parliaments? Without successes gained under the influence of public opinion there cannot be a successful

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Federation, because Federation must depend on the goodwill of the people. You cannot make a Federation
under which the people can live and prosper unless it has their goodwill.

Mr. SYMON:
The substance of the amendment, putting aside the language of it altogether, is that the Federal Parliament is
to be given unrestricted power of legis- [start page 788] lation in respect of industrial disputes, where those
industrial disputes overflow, or exercise an influence beyond the limit of a particular State. Now, venture to
say, first of all, that an industrial dispute is really a matter of local concern. In its essence and in its 10
origin it is a matter of local concern. And, undoubtedly, if there is one thing more than another which
ought to be preserved to the individual States it is the power of dealing-by means of conciliation, or by
means of any other method that can be adopted-with those terrible evils which sometimes flow from
these disputes, without Interference, by the federal authority. That seems to me to be an
unquestionable principle, and we ought not to give to the Federal Government the right to interfere 15
with the self-government of a State in this respect. Then if we did give it that power, just think of what
it involves. It would not be limited to the establishment of a court or tribunal of arbitration or
conciliation. If it is to be limited to empowering the federal authority to establish tribunals of
arbitration that is one thing, but I am not dealing now with the language of the amendment, which-as
Mr. Higgins himself admits- is not very apt, but I am dealing with the substance of it, which confers on 20
the federal authority power to legislate in every way on industrial disputes. That would involve-as my
hon. friend Mr. Wise pointed out in a question which he addressed to Mr. Higgins-the settlement of a
uniform rate of wages applicable to the whole five or six, or it may be, if the continent was further
divided into provinces, of the seven or eight different provinces of the group where local conditions
might govern and differentiate the rate of wages in the different trades. For instance, if you have 25
regard to trade in a tropical part of Australia, you could scarcely apply the same rates of wages as you
would in South Australia. Then, again, you will be handing over to the federal authority a two-edged
sword, which might operate with equal danger in the interests of the workmen as in the interests of the
employers. It would entirely depend upon a majority of the members in the Federal Parliament as to
which way that power would be exercised. If the majority were leaning in one direction legislation 30
might go that way; if a majority were leaning in another direction the legislation might be directed
accordingly. -It would be impossible to see the end of it, and I submit that it is outside the federal ambit
for us to legislate in this direction. The point taken by Mr. Deakin appears to me to be insuperable.
How is this court to act? Are its functions to be limited to a particular State where the industrial
dispute occurs, or is it to travel outside the Commonwealth? There is no limitation. The way you get 35
the test would be by asking whether it escapes beyond the limits of the particular colony affected by the
trouble or whether it remains within.
Mr. HIGGINS: The Commonwealth has no jurisdiction beyond its own limits.
Mr. SYMON: The test my hon. friend would put would be as to the jurisdiction of this tribunal, and
as to whether the dispute affected some country outside its own particular limits. Then if you treat it 40
federally, how is the jurisdiction to be exercised as to the conditions of one colony to another? There
can be no industrial dispute in New South Wales or Victoria without the ramifications of the
organisations of employers or employes being utilised for the purpose of putting pressure-I am dealing
with the matter now with perfect moderation and treating it as applicable to both sides-to bear in one
colony or the other, to affect one side or the other. That would create intense bitterness in the 45
particular colony affected. That might happen if there was to be a strike or a lockout. I assure you I
look at this thing in a most disinterested manner. You might have such a state of tension developing as
would produce something like a civil war. We know the difficulties which arise in con- [start page 789]
sequence of the sense of injustice which may be generated either on one side or the other, and the side
which feels the injustice may consider it beyond the relief of any court; and if you give power, whether 50
by means of a court of arbitration or of conciliation, you are importing into the Federation an element
which may result in bitterness between the federal authority and the States when you should promote
at all hazards harmony. Above all things let us preserve to each State its own jurisdiction in this
matter; let us promote conciliation, but do not let us impose upon the federal authorities anything
which by any possibility will create occasions of difference between the State and the federal 55

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authorities. In regard to taking over the railways, I thought the Inter-States Commission would be
unadvisable as compared with taking over the railway altogether, because It might give occasion for
bitterness, and the difficulty was insurmountable. There, however, I do not think the difficulties are
insuperable. As Mr. Kingston has pointed out, we have had efforts made that should be commended with the
view of dealing in a harmonious and conciliatory spirit with difficulties which we all deplore and which, 5
unfortunately, often arise. I say: leave them to the States to deal with, because it is a matter of home
jurisdiction, or home rule.
And
Mr. GORDON:
And then Mr. Glynn adds a note to that report which so concisely summarises the legal position that I cannot 10
refrain from quoting it.
The water rights of the province to be preserved depend a good deal upon the extent of their
recognition by the other colonies. What they are according to the principle of international and private law-
the analogy of which should guide us in defining them-may be clearly stated, but the mere statement of the
colonies' respective rights in the river, unless made the basis of an agreement for the mutual exercise and 15
respect of them, would be of little use There is no tribunal to which a colony, on breach of its water rights,
can appeal for a remedy, so that the rights are legally ineffective.
Mr. PEACOCK: The matter is perfectly clear, and we are all practically unanimous on the point over 20
which we have spent an hour's talk, that the Federal Parliament should have the power of dealing with the
tariff and bounties, while every man in this Convention is of the same opinion concerning existing
contracts, which ought to be preserved for the reasons given by Mr. Barton.

Even considering federation the Framers of the Constitution provided for that existing 25
contracts were to be preserved. This did not appear to me to have been provided for by the
Commonwealth of Australia governing companies who may have contracts outstanding and may
find severely harmed by the new legislation.

Mr. KINGSTON:
When the Bill was first introduced, according to the interpretation which would be placed upon the Statute by
a court of law, any contract which was in existence at the time that the Federal Parliament legislated for the
adoption of a uniform tariff would be held to be good, and would [start page 856] be preserved, but now Sir 35
Edward Braddon proposes that from March 31st in this year the hands of the State should be absolutely tied.
What does that mean?
The CHAIRMAN: I would point out that the hon. member, Sir Edward Braddon, has withdrawn his
amendment.
And 40
Mr. KINGSTON: Then the industry would be stopped altogether. I object to unnecessary interference with
the rights of the State regulating these matters for itself; it will have a very bad effect. I speak of these matters
because South Australians take a considerable interest in them.
And
Mr. O'CONNOR: I think we are all agreed that when an officer is taken over by the Commonwealth he 45
should not be placed in an unfair position, or lose any rights by being taken over, because t is no fault of his
that the continuity of his service has been broken. The Bill of 1891 provided that all existing rights should
be preserved, but nothing more. That would be quite inoperative in many cases, for this reason: In the case

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where a pension was due after a certain number of years' service, the period might have been almost complete
to entitle a man to a pension, but if it were not actually complete, he would have no rights whatever.
Sir GEORGE TURNER: I suggested the insertion of the words "rights existing and accruing."
The CHAIRMAN: We will now deal with the amendment moved by the hon. member Mr. Deakin.
Mr. HIGGINS: Words very similar to these were inserted in the Civil Service Act of Victoria, in 1883,
with the result that they led to great difficulties and friction between Governments and employes. Indeed no
words have been so productive of difficulty. I admit the justice of the contention of my hon. friend Mr.
Deakin, that existing rights should be preserved. But we have by no means come to the solution of the 10
difficulty. Under our Victorian Act we have a certain rule as to the order of promotion and transfers from one
department to another. If the rule in the Victorian Act is that you must promote within a department by
seniority and fitness, and if you have not got that rule in the same form in the other colonies, how can you
apply it to the case like that alluded to by the hon. member Mr. Gordon, where you have men in the Customs
of South Australia coming into the same department with the men in Victoria. Why, it will lead to legal 15
questions which I shudder to contemplate. It will afford litigation and cases, no doubt, for the lawyers, which
I am quite sure it is our business to avoid. Although it is a difficult matter, I do not propose at present to move
any amendment. It can only be solved by a careful attention to details, and I am suggesting that in dealing
with rights and privileges, the rights and privileges that are meant to be conserved should be defined, and that
if it is intended that a man shall not have his former right [start page 1051] to promotion within a department, 20
say, that he was entitled to under existing law, it should be so understood. I am sure that general words of this
sort will lead to trouble and confusion.
Mr. DEAKIN: I take it that this amendment must necessarily be read to apply go far as the circumstances
will permit. It is quite clear that any inchoate right that any member of the public service will have to
promotion in the State department cannot obtain exactly under the Commonwealth. That is not a right we 25
could seek to engraft on the Commonwealth. Men who join the public service under the Commonwealth, if
they are men of ability, will have new fields of promotion open to them; that must weigh with those who pass
out of the State service into the larger service of the Commonwealth. We do not want by any such words as
these to convey the merely petty or technical rights, but the assurance that substantial justice will be done.
Mr. BARTON: This will tend to give the Commonwealth the service of the best public servants. 30
Mr. DEAKIN: I recognise the force of the hon. member's contention, and trust he will give us his help to
provide that substantial justice shall be done to all public servants, and that substantially the rights and
privileges they enjoy now will be preserved to them under the Commonwealth.
Mr. Deakin's amendment agreed to; clause as amended agreed to.
It ought to be understood that the difference is that staff actually changed employment when 35
changing from colonial to federal employer and as such there is a change made which itself did
not change the legislation of the colony, as now is claimed to be done to override it by the
WorkChoices legislation.

Mr. BARTON: Yes; to principles operating entirely within the State. No internal regulation can have
the effect of derogating from that power-when they come into conflict-which is reposed in the
Government of the Commonwealth to regulate trade and commerce, and preserve the equality of it.
That equality must be preserved, but if there is no conflict, and the thing is dealt with in one State 45
simply for the management of its own internal traffic, and not for the purpose of derogating from this
absolute equality of trade, things like that ought to be preserved.

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Mr. HIGGINS: Do you think it ought to be allowed to secure its own internal traffic to go to Sydney even
if it really should go to Victoria?
Mr. BARTON: Members seem to have lost sight of the question they are discussing. Each State is
primarily entitled to the traffic within its territory, but there is a [start page 1110] salutary condition imposed
that where the inter-State traffic is interfered with, and where regulations are made so as to interfere with it, 5
then these things must be interdicted. If there was a portion of New South Wales which had no connection
with the Victorian railways-take that portion between Sydney and Armidale-and if there happened to be a rate
imposed there which was simply a development rate for the purpose of giving a chance to the settlers, no
Commission would interfere with it under the United States Constitution; but apart from this, if it affected
inter-State trade and commerce and intercourse prejudicially, so as to prevent the freedom of trade operating, 10
that would be the very point which this Commission would be appointed to deal with. We want to put a stop
to things like this. Mr. Reid quoted a case in which, on one of the Victorian railways-from Echuca to
Melbourne-a bale of wool could be carried from a point 250 miles in New South Wales territory to
Melbourne by the Echuca line for 2s. 9d., while the grower, if he happened to be in Victoria, would have to
pay 6s. 1d. to carry his wool over the line. 15
Sir WILLIAM ZEAL: The same thing exists in New South Wales.
Mr. BARTON: I wish the hon. member would remain quiet. He was very quiet while Mr. Higgins was
quoting instances, and I hope he will be while I am. We must have something like federation in these matters.
Let us take the return traffic on the line from Melbourne to Echuca. We find that a ton of sugar intended for
consumption at a distant point in New South Wales is carried for 11s. 9d., but if it is intended for a railway- 20
ridden Victorian who owns the railway he has to pay 0 13s. 5d. Let us apply the same to general
merchandise. Ever since 1894 the regulation has been that if the goods are intended for a distant consumer in
New South Wales he pays 22s. 6d. a ton, but a Victorian has to pay rates ranging up to 4 8s. 7d. I say
nothing about the rebate allowed to the carriers of the New South Wales wool. Is it not easy to distinguish
between a regulation of that sort giving an advantage to a citizen outside your own bounds over your own 25
citizen, and at the same time tending to impoverish the railways of your neighbor, and a regulation dealing
with internal traffic intended to develop the country? If the latter goes farther than that the Inter-States
Commission must step in and see that it is left to that.
Mr. FRASER: I cannot allow this matter to go without some explanation.
Mr. BARTON: It needs explanation. 30
Mr. FRASER: The low rate to Hay is undoubtedly a preferential rate to secure the trade of that district.
The rate to Cootamundra, which is some 254 miles less than to Hay, is 3d. per ton per mile, and there is no
increase in the rate to Hay. Will anyone contend that that is not a preferential rate? I do not say that each
colony is not right in gathering all its own traffic. I concede that point, but I assert all the same that if New
South Wales is going to gather all its traffic in this way Victoria should not allow her geographical 35
advantages to be stripped from her.
Sir EDWARD BRADDON: Alter the geography.
Mr. DEAKIN: Hand us over the territory.

Mr. ISAACS:
It is also provided that:
Such vote shall be taken in each State separately, and if the proposed law is affirmed by a majority of States
containing also a majority of the population of the Commonwealth, it shall be presented to the Governor- 45
General for the Royal assent, as if it had been duty passed by both Houses of Parliament, and on receiving the
Royal assent it shall become law. If not affirmed as aforesaid, the proposed law shall not become law,
and shall not be again proposed for a period of at least three years.

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And
Mr. ISAACS:

It is never intended that there should be a referendum in the case of a dispute between the Ministry
and the Lower House. It is only in the case of a momentous and prolonged dispute between the House of 5
Representatives and the Senate that it could ever be applied, and unless the Ministry of the day have a
majority in the House of Representatives it is plain there never will be a dispute at all. Therefore it has no
connection whatever with the question of responsible government.

And 10
Mr. ISAACS:
It is only in case when the Chambers do not mutually pass a Bill that the referendum comes into
operation.
Mr. O'CONNOR: Would it be competent for a private member to get the referendum under this?
Mr. ISAACS: Not unless the House granted it. 15
Mr. O'CONNOR: On the motion of a private member?
Mr. ISAACS: There is nothing expressly introduced to prevent it here, but I have no objection to
doing so.

20
Mr. BARTON: Hon. members will recollect that there was an amendment carried in this clause at the
instance of my hon. friend Mr. Holder, to this effect:
No elector who has at the establishment of the Commonwealth, or who afterwards acquires a right to 25
vote at elections for the more numerous House of the Parliament of the State, shall be prevented by any
law of the Commonwealth from exercising such right at elections for the House of Representatives.
There are a number of members who did not sufficiently consider that this applied to the preservation
of any suffrage after the date of the establishment of the Commonwealth, and preventing it being
interfered with by the Parliament of the Commonwealth. There are some hon. members who are in 30
favor of preserving the suffrage existing at the date of the Commonwealth, and not interfering with it,
so that any person who has for instance a vote under adult suffrage or female suffrage, should not have
a vote taken away while it lasts. On the other hand the various States may amend their electoral laws
after the date of the establishment of [start page 1194] the Commonwealth; and some members who
voted for this provision have told me that they did not sufficiently consider that after the date of the 35
establishment of the Commonwealth the State might alter its law. Supposing female suffrage were
taken away by South Australia, there is no reason why it should nevertheless be absolutely fixed and
preserved for federal purposes until the Federation made a uniform law. The right is not to be taken
away from the States themselves to alter their suffrage before the Parliament of the Commonwealth
maker such a law upon the subject. The amendment of my hon. friend would cover this state of things: 40
If the suffrage was extended to females of 18 or 19 years of age, or to a certain undesirable class, that
right being once made could not be touched by any law of the Commonwealth. I have prepared an
amendment which conserves what my hon. friend wants. It is as follows:
No elector, entitled to a qualification existing at the establishment of the Commonwealth to vote at
elections for the more numerous House of the Parliament of the State shall, whilst that qualification 45
continues, be deprived by any law of the Commonwealth of the right to vote at elections for the House
of Representatives.

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Sir GEORGE TURNER: Why not make it the suffrage at the time the uniform law is made. Whatever
the qualifications are at the time the Federal Parliament makes the uniform law, they should be
preserved.
Mr. BARTON: Perhaps the hon. member did not catch what I was saying-that before or after the
establishment of the Commonwealth a State may make a suffrage which would be totally distasteful to the 5
rest of the colonies. I am not speaking of adult suffrage. Supposing we take some extension, which may
include persons of age whom the other colonies would certainly not include, or might include persons who
are not of age. These are the only extensions beyond adult suffrage which are likely to to be made if ever
made. I am not going to say what anyone's anticipations may be upon the question, because we all have our
own opinions; but my hon. friend has not seen this, that if the extension is made by the Parliament of the 10
State, before or after the establishment of the Commonwealth, and before the Commonwealth has
made a law, the Commonwealth cannot make a uniform law unless it grants all over the
Commonwealth such an extension. That would practically prevent the Parliament of the Commonwealth, if
such an inapt extension were made in one State, from ever making a uniform suffrage, unless the suffrage in
this offending State were by the State itself regulated back to something reasonable. It cannot be the intention 15
of hon. members to tie the hands of the Federal Parliament in that way. No one wants to interfere with the
adult suffrage in South Australia, but surely it is the right of the Commonwealth to make such a uniform
suffrage as would not compel it to grant every extension that should be wilfully and captiously made by any
State.
What must be clear is that the Framers of the Constitution did seek to preserve the rights of State 20
citizens albeit did not desire to basically have to be subjected to some form of wilfully and
captiously legislation and hence the ADULT limitations was put on albeit not in regard of
other conditions as the Hansard records of the Constitution Convention Debates indicates.


Mr. WISE: But we have to frame a scheme which we can put forward to each state, and point out to
them that even in the future they are not going to lose their separate national identity, which will be
preserved for all time, just as it is to-day. 30

The Hon. F.W. HOLDER: I am glad my hon. friend has made that suggestion, because it gives me an
excuse for taking two or three moments more which I should not have occupied without good excuse, 35
because I feel that I have already trespassed for some time upon the attention of the Convention. But the
interjection of the hon. and learned member demands an answer, and I am prepared to give one. He says that
to do what I have just suggested would endanger the very existence of the federal parliament as such. My
answer is that the state rights, of which I am an advocate, are guarded within the terms of the
constitution itself, and the preservation of that constitution I have already stated my determination to insure. 40
The state rights are preserved first, as I have already put it, by the reservation to the various states of
all powers not expressly handed over to the federation, are preserved next by the absolute
maintenance, except by the consent of the majority of the states themselves, of the constitution in its present
form in the form under which we federate and that in these matters which are within the four corners of the
constitution, which in no way threaten its existence or impair its efficiency in these matters simply of dispute 45
between the two houses, it seems to me that we do not endanger the federation.
And
Mr. TRENWITH (Victoria)[4.55]:

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Our early experience taught us that unification for all the, purposes of government was not desirable, and thus
there is in our midst, and in all the colonies, a strong determined feeling that while we have federation we
[start page 604] must still maintain the sovereignty of the states. There are some who urge that the
sovereignty of the states for state purposes necessarily implies the sovereignty of the states in larger national
questions. I have no hesitation in expressing the opinion that state rights can only be preserved, the 5
sovereignty of the states can only be preserved, by handing matters over to the federal parliament
which cannot be dealt with by the states themselves by making the federal objections as few as possible,
but having decided what is federal, leaving the federal power sovereign with reference to that. Thus we
create two distinct governmental entities. We leave sovereign states with power to deal altogether apart
from federal interference with such questions as they refuse to hand over. Then we create a federal 10
power sovereign within its own realm, competent to deal without the interference of the states as states
with questions that are handed over to it. Any other form of government will not give us what we
require as shown by a review of the history of our colonies. Having in view the influence of this proposal
upon the possible success of this federal movement, I should like briefly to review the attitude of the people
of Australia with reference to their rights and powers as citizens. In each of the Australian colonies we began 15
with a comparatively restricted franchise, and we developed a system of plural voting. In several of the
colonies the franchise has been made complete, unrestricted, and plural voting has been abolished; thus we
see the tendency is to demand in the states equal rights as citizens. There can be no disputing that that
tendency is growing. It has been recognised that that tendency is growing, so that the principle of manhood
suffrage, and the possibility of adult suffrage have been placed in this bill. Now, let us look at what we are 20
doing. We are creating a dual citizenship, a citizenship which makes a man a citizen of his state and a citizen
of the commonwealth. Experience has shown us that the citizens in the state will not brook unequal
citizenship-they will not brook one voter having more power than another voter. We have acknowledged that
to be so by creating, with reference to the election of senators and members of the house of representatives
equal powers to the states within their states. Now, have we any right to assume that when we create 25
another form of citizenship the commonwealth citizenship the same man who would not brook unequal
citizenship in the state will submit to unequal citizenship in the commonwealth?
The Hon. H. DOBSON: It is a dual concern!
Mr. TRENWITH: I am dealing with the true form of citizenship. From the inception of the
commonwealth, if we are successful in establishing one and it depends largely upon whether we deal wisely 30
or unwisely with this proposal whether we shall be successful when we have established the commonwealth,
every man inside the commonwealth, in addition to being a, citizen of a state, is a citizen of the nation
that is created out of this effort.
The Hon. H. DOBSON: You want the citizen of the state to be merged into the citizen of the nation!
Mr. TRENWITH: I want him to retain his dual position; but, in relation to it, to maintain a proper 35
principle of equality with each other citizen. As a citizen of the state equal with any other citizen of the state,
and the citizen of the commonwealth equal with any other citizen of the colony.
The Hon. Dr. COCKBURN: 40
. Unless we have some great civil war, which will confuse all the issues and blur all the party lines in
Australia, and which I hope we shall never have, we shall have the same parties here as existed from the first
in America. Parties will be clearly defined: there will be those who wish to see local government, home rule,
and state entity preserved; and those who wish to see all these safeguards of the liberty of the people blurred,
confused, and obliterated in a central government, which will be situated at [start page 952] a place too far 45
distant for the people of Australia ever to be able to ensure effect being given to their views. I thoroughly
believe that this last proposal maybe looked upon as, indeed, a proposal for finality. It is a final proposal
for the extinction of the senate, of state rights, and of liberty.

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The following is another clear example that regardless of the provisions of subsection 51(xx) as
they might be interpreted to apply it could not in anyway rob the States of their internal affairs as
like Subsection 51(i) subsection (xx) cannot interfere with entitlements and prohibitions in
subsection 51(xxxv). The debate makes it very clear that sovereignty within the State is to
accepted for so far it does not interfere with the trade and commerce provisions of subsection 5
51(i). Likewise the same should be visa versa, as was intended by the Framers of the
Constitution..
Dr. QUICK (Victoria)[11.38]: The last speaker, I believe, is one of the strong advocates of state rights in 10
this Convention. He will remember that the other day the right hon. the Premier of New South Wales
challenged the advocates of state rights to define those rights, to put in the bill such rights as they claimed
were state rights, and in this very clause 52. Now, I would remind the hon. member, and other hon.
members who are interested in obtaining, as far as possible, the right of the states to local self-
government, that the question involved in the amendment submitted by the hon. and learned member, 15
Mr. Deakin, is one of very great importance indeed. For my part, I think it is one of those state rights
which ought to be put in the bill, and not left in any doubt whatever.
[start page 1050]
Mr. SOLOMON: Hear, hear; but this is not the right place for it!
Dr. QUICK: The question whether this is the right or wrong place is a minor question. The question we are 20
dealing with now, and with which we ought, to deal, is whether this state right is to be put into the bill? I shall
support the amendment. I do not think the objection raised by the hon. member, Mr. Barton, the revenue
objection-is of sufficient importance to justify the rejection, of the amendment, and I will point out the reason
why. It is not for one moment suggested that we should take away from the, states the right of imposing
liquor laws. Each state will have the right to pass a liquor law-a law for the regulation of liquor. Each 25
state has that right preserved to it under its existing constitution; it consequently has the power reserved to it
of reducing the revenue of the commonwealth.
Mr. SOLOMON: Then where is the necessity for the amendment?
Dr. QUICK: The second question is, whether the state shall have the additional right of regulating the
importation of liquor. I submit that if a state has the right to regulate the sale of liquors produced within its 30
own territory, it also ought to have the right to regulate the sale of liquors imported from other countries.
Mr. SOLOMON: So they have at the present time!
Dr, QUICK: No; I do not think they have. I think it is necessary for this amendment to be passed to
give the states that right, for, as has already been pointed out, this bill provides that trade and
commerce between the various states shall be absolutely free, and this clause is in conflict with that 35
provision, consequently something must be put in to modify, the extreme words " absolutely free."
Mr. Solomon: That is the clause I say it ought to be inserted in!
Dr. QUICK: I understand that the hon. member, Mr. Solomon, is only arguing that this is the wrong place
to put it in that is a minor question; it does not matter whether the amendment is put in here or in clause 89.
Mr. SOLOMON: There are several other suggested amendments which will come in clause 89! 40

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Dr. QUICK: That is a matter for the Drafting Committee. I think that this question is one that ought to be
considered from a general public federal point of view rather than from a revenue point of view. Serious
consequences might follow, as has been suggested by the hon. and learned member, Mr. Barton; but, in my
opinion, the question of local self-government is of more importance than the revenue question, and I
believe that there are a large number of people in the states who, if they thought they were going to be 5
deprived of the right of regulating the internal liquor traffic of their states, would vote against a
constitution that would deprive them of that right of local self-government. Therefore, I contend that that
right ought to be secured and placed beyond all doubt, and it can only be secured, and placed beyond all
doubt by providing for it in this constitution bill; therefore, I shall vote for the amendment.
Mr. GLYNN (South Australia)[11.42]: I think this question is a more difficult one than some of the 10
members seem to think. The case of Leisey versus Hardin, decided in America, has shown the necessity of
our dealing with this question, because the decision in that case was: that the sale of intoxicating liquors in,
the original packages in the state was unconstitutional and void. The object of this amendment is to get rid
of the effect of that decision.
The Hon. A. DEAKIN: There have been later decisions in cases in which the Wilson act was challenged, 15
and that act was up- [start page 1051] held. The Supreme Court of the United States has held that it provides
a solution of the difficulty.
Mr. GLYNN: It shows the necessity of making such a provision as the one now suggested; but if that be
put in, we shall still be faced with a difficulty out of which we should not ask the Drafting Committee to get
us, for it would impose almost a superhuman task on the Drafting Committee to say what amendments are 20
really necessary in this clause. I say this because there have been several decisions from 1885 down to last
year on this question under the Canadian act, and we shall be bound by those decisions, because some of
them are Privy Council decisions-at the same time, I would remark that the provisions of the Canadian
act are not exactly the same. They are for the regulation of trade and commerce, not between states and
states, but with other countries; nevertheless, if hon. members read them they will find this- 25
The Hon. A. DEAKIN: In Canada the central government retains the residue of powers; here they do not!
Mr. GLYNN: I understand that. One of the grounds of the decision is that a license which amounted,
practically, to a prohibition of sale was void-that the residue of powers remained with the central government,
and that the local legislatures were limited to such powers as they got by express delegation. But beyond that,
there were other grounds: that they had no such power, because it was an interference with the powers of 30
direct taxation conferred on the central government. The upshot of the decision in Canada is that a license
that amounts to a prohibition of sale is illegal. I merely mention this for the purpose of showing that you
cannot, without considering, this in conjunction with the American cases, say what ought to be done, because
clause 89 must be read in conjunction with the sub-clause before us. That is an addition to our difficulty.
It does not exist in the case of Canada, and I say, therefore, that we ought to pass this amendment, and ought 35
also to accept the suggestion of the hon. and learned member, Mr. Barton, and postpone the further
consideration of the matter until we meet in Melbourne, because if hon. gentlemen will look through a
synopsis of the cases to be found in Wheeler's "Confederation of Canada," published only last year, they will
come to the conclusion that it is exceedingly difficult to frame such an amendment of this clause as will place
beyond all doubt the question whether the power of prohibition by the states of the sale of intoxicating liquor 40
within their boundaries is preserved.
The Hon. H. DOBSON (Tasmania)[11-45]: I hope that the Committee will agree to the amendment
suggested by Victoria, and which has been supported by the hon. and learned member, Mr. Deakin. I think
we shall make a very grave mistake if we leave too many important and contentious matters to be discussed
in Melbourne. Suppose we now turn out a completed bill save and except the financial clauses we shall have 45
all our work in three or four weeks in Melbourne to adjust those, and put the finishing touches to the
constitution.
The Hon. E. BARTON: There is no reason why we should not sit five or six weeks, or even longer, in
Melbourne!
The Hon. H. DOBSON: I think that we shall get very tired if we sit five or six weeks in Melbourne during 50
the hot summer weather. We are doing our work so well that we shall probably not have to sit so long as that

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in Melbourne; but, of course, we shall sit there longer if necessary. This question is so important and
complicated that I think the Drafting Committee ought to have a little more instruction the question of
prohibition. It appears to me that those people in all [start page 1052] our states who have quite as earnest
convictions on this matter as some of our friends have on the question of deadlocks, will not be satisfied if
they think the federal constitution is to put a stop to their getting a measure of prohibition. I presume that a 5
zealous teetotaller is always looking forward to the time when be will convert his fellowmen, and win
success, and get a measure of prohibition, and, in my opinion, our constitution will have a very great blot
upon it unless we do, apart from the question of revenue, provide some means to enable the states to prohibit
the importation of liquor, and I think it would help a solution of the matter very much if the constitution at the
same time said that a colony like South Australia or Victoria, which is a wine-producing colony, shall not 10
have that important industry taken away from it, but shall be able to manufacture wine, beer, ale, or spirits,
but for export only. So I really think the Drafting Committee have to face an important question, not simply
that of the carrying of this amendment, which is a very simple matter. They have to consider the question of
providing for the question of prohibition, and, at the same time, for providing for the protection of the natural
industries of South Australia and Victoria, and making the sale of what they produce in harmony with the 15
prohibition law of any state.
The Hon. S. FRASER (Victoria)[11-47]: I shall vote for this addition to the bill. In the province of Nova
Scotia, in the Dominion of Canada, there is prohibition, and I think it is only right that each colony should
have the power to regulate its own internal affairs.
The Hon. Sir W.A. ZEAL (Victoria)[11.48]: I am in favour of this amendment. I would be willing to follow 20
the advice of the hon. and learned member, Mr. Barton, had not a very important provision been passed by
the Committee last night in regard to the appointment of people to high positions, which I shall oppose most
strenuously when it comes on for consideration again.
The CHAIRMAN: The hon. gentleman cannot discuss that matter now.
The Hon. Sir W.A. ZEAL: I seldom address the Committee, and I think that I might be allowed a little 25
latitude in explaining why I am going to vote as I shall on this occasion. I do not think that any hon. member
will impute to me that I have taken up too much time, It has been my continual study throughout the sittings
of this Convention not to repeat myself. I am sorry that while I was absent last night the clause to which I
have referred was passed. In the present instance I shall vote for the amendment.
The Right Hon. G.H. REID (New South Wales)[11.49]: Since it is evident that a serious vote must be given 30
on this matter, I wish to add a word or two to what I have already said. In the first place, it is clear that
under the provision that all the powers that are not expressly given to the federation are reserved to
the states, the power of regulating the consumption of intoxicating liquors is reserved to each state.
The Hon. E. BARTON: Quite so!
The Right Hon. G.H. REID: Therefore, the question about customs revenue is irrelevant. That is a 35
question of the power that already belongs to the state, it is not a question we can consider at all. The
constitution is so framed that these colonies will have the power to do what they like in reference to the
consumption of intoxicating drinks within their own boundaries. Therefore, the revenue question is out of
court. It is an incident of what we are doing. The value of these observations is that they direct the attention
of the Finance Committee to a state of things which must be specially provided for. Putting aside the revenue 40
matter, as a matter for the Finance Committee to [start page 1053] deal with, we have simply to face the
proposition that we must make the constitution clear upon that point about which there is no real doubt as to
our intentions. Under these circumstances, although I would prefer the matter to be made clear in another
clause, as there is going to be a division upon the merits of the case, I shall vote for the insertion of the
words. 45
The Hon. E. BARTON (New South Wales)[11.51]: I intend to vote against the amendment. The question of
the customs revenue cannot be lightly disposed of, because as the matter stands now, the state has power to
deal with the consumption of liquor within its borders. Under the constitution as it stands, it would be in the
same position as the state of Iowa with regard to the law which it passed, that is to say, it might not be able to
deal with the importation and sale of original packages, but would still have entire right to control 50
consumption. There may be a great difference between the two powers, and it would make a great difference

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to the customs revenue-a difference which I do not think we can ignore. With regard to the general merits
of the question, I think it would be unwise and impolitic to specially enlarge the powers of the states in
dealing with the sale of one class of goods, while their powers are limited with regard to the sale of
every other class of goods in relation to the condition of internal politics. If the subject of a sale is
anything apart from intoxicating liquors-it may be a poison, or one of a thousand other things-while 5
the state can deal with its sale and consumption within its borders, it cannot prohibit its importation if
the commonwealth is to regulate trade and commerce. If you are to take away this power of regulating
trade and commerce from the commonwealth in respect to one class of articles, it would be logical to
take it away in respect to others. Imagine the state of chaos which that would produce. You would have
given the commonwealth a nominal power to deal with the regulation of trade and commerce; but with 10
the other hand you would have taken it away. If you take it away in regard to this large class of
subjects you might take it away with regard to all subjects.
The Hon. I.A. ISAACS: There is no power in the commonwealth parliament to deal with this matter,
though there is in the federal parliament of the United States!
The Hon. E. BARTON: There is power to regulate trade and commerce, though clause 89 stands 15
somewhat in the way, and I propose to amend that clause so as to prevent the commonwealth parliament from
being denuded of the powers it would otherwise have. To give the states power to deal with the importation
of a class of goods which are the foundation of the customs revenue in all the colonies, would be an
anomalous position to set up. If this power is given in respect to the consumption of alcoholic liquors, you
may as well grant it in respect to everything else, and then what becomes of the regulation of trade and 20
commerce by the commonwealth? I suggest that clause 89 should be amended in some such way as will leave
the commonwealth in its proper position as the regulator of trade and commerce. Let the states be allowed
to deal with the consumption of intoxicating liquors; but do not let them interfere with the trade and
commerce of the commonwealth. It does not correctly state the position to say that, by carrying the
amendment, you put matters in the position in which they are to-day. Under the commonwealth matters 25
cannot be in the position in which they are to-day. There must be these alterations which are necessitated by
the solidification of the states for some purposes, one of which is to give power to the commonwealth to
regulate trade and commerce so as to prevent its being [start page 1054] hampered by the individual act of
anyone state. It is against all principle, and impolitic, to impose a disqualification with regard to this
class of goods, which you do not impose with regard to other classes of goods. It would be much more 30
logical to allow the commonwealth to legislate upon the consumption of alcoholic liquors; but that is a
power which, I take it, the states will not surrender. In that case, let them be satisfied with the power to
deal with the consumption of alcoholic liquors, which they can deal with effectively. Do not let them ask
power to control the action of the commonwealth in respect to one of the most essential powers of the
commonwealth. If this power is to be given up in regard to one class of goods, let it be given up in 35
regard to all; but, if it is to be retained at all, let it be retained in regard to all.
The Hon. A. DEAKIN: It is only in regard to intoxicants that a question of principle arises!
The Hon. E. BARTON: I know that a great many people think that it is against morality to consume
alcoholic liquor, while others are actuated by the idea, "I cannot drink, therefore you must not." I am not
going to discuss those parts of the question. I want to leave the liquor question as a matter of internal 40
state regulation out of consideration altogether. What I suggest is that the power to regulate consumption
which the states possess today, and would possess under the commonwealth, will enable them to do
effectually what is wanted. If you give them the power to prohibit importation, this may happen: Goods
destined for transit from state A to state C may in some moment of fanaticism be prevented from passing
through state B, and thus dealings between state A and state C may be rendered impossible, or else very 45
inconvenient, because of the long round about deviation which would be required. Such a state of things
would set at nought the powers of the commonwealth to regulate trade. I submit that this cannot, and ought
not to be allowed, and that we shall act wisely in negativing the amendment.
Mr. MCMILLAN (New South Wales)[11.57]:I hope that in discussing this matter our views in regard to the
liquor traffic will be carefully excluded. I do not know how this question has been dealt with in other 50
parts of the world; but I can see that by giving the states power to forbid the import of liquor you have
an absolute abnegation of intercolonial free-trade. We know very well that in dealing with the customs, if
you have an ad valorem duty upon only one article, it leads to a wholesale system of espionage, delay, and
inconvenience. I fail to see how you can give power to the states to prevent the importation of liquor unless

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you give them full power over the means of transit, over their borders. Although an affidavit might be given
that there was no spirit on board, a train might be stopped on the border while a search was made under the
reasonable belief that there was liquor on board. You might have the whole of the border trade of a state
interfered with in that way by the officers of the state. Such a state of things would lead indirectly to the re-
erection of what would be practically custom-houses on the border. A vital principle connected with 5
federation from the national and commercial point of view is that it will give absolutely free
intercourse between the states. Let the states who want to prevent the consumption of intoxicating
liquor within their borders provide that all spirits shall go into public bonds. We can make the selling of
spirits a matter for the states to regulate.
An HON. MEMBER: That is all we ask! 10
Mr. MCMILLAN: Let the states have power to deal with the consumption of intoxicating liquors
within their borders; but do not give them a general power to ransack every means of communication
[start page 1055] across their borders. No doubt great misconstruction will be placed upon the vote which
is to be given upon this question. I am anxious that every state should have its own autonomy. I am very
anxious that the liquor traffic should be regulated on purely democratic local option principles. At the same 15
time, I think that by doing it as attempted it might be a great blow at intercolonial free-trade.
And
Mr. SOLOMON: Is that necessary at all? Is there any portion of this bill which gives over the power of the
states to the commonwealth to regulate the traffic in liquor inside the boundaries of the states?
The Hon. I.A. ISAACS: Yes, in clause 52. The American decisions are very much in point; but the 20
Canadian decisions do not apply at all. Clause 52, when it confers on the commonwealth parliament power to
deal with and regulate commerce between states, impliedly by that excludes the states from making any
regulations with regard to inter-state commerce, otherwise they might throw everything into disorder.
The Right Hon. Sir E. BRADDON: But not traffic within their own boundaries?
The Hon I.A. ISAACS: No; but the United States decisions are that it is still inter-state commerce, so long 25
as the subject of that commerce remains in the hands of the original importer, and in an unbroken package.
Mr. Symon: What you want to do is to regulate the consumption. That is not interfered with!
The Hon. I.A. ISAACS: As soon as the liquor comes into a state, and goes into consumption or use in the
state itself, the state shall have the same power to make regulations with regard to that use or consumption as
it can with regard to liquor in its own territory. 30
Mr. Symon: Where is there anything in the constitution to take that power away?
The Hon. I.A. ISAACS: I pointed out earlier in the day that clause 52, subclause I, prevents a state from
making any regulation with regard to importation.
And
The Hon. E. BARTON (New South Wales)[2.41]: The insertion of the word "ocean" is intended to 35
preserve the line of demarcation that generally exists between federal powers and state powers, the
commonwealth being intrusted with matters that are external, and matters of internal regulation,
being intrusted to the several states.
And

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The Hon. I.A. ISAACS (Victoria)[2.48]: I hope that the hon. and learned member will not move an
amendment to that effect. I think that the meaning of the word "quarantine" is pretty well known. There
is no doubt that leaving the sub-clause as it is preserves to every state the power that it now has to
make laws in relation to all such subjects. It does not vest an exclusive power in the commonwealth to pass
such laws. The state can pass its own law, and alter it as it pleases; but I think it is well to do as was 5
done in the Canadian act in that respect-to give a power which the commonwealth might, in case of
emergency, employ for the sake of the general health power to make a law respecting quarantine, as it
is generally understood, so as to preserve all the ports of the commonwealth, not only from infection
from abroad, but also from the danger of any infection which might have reached one port of the
commonwealth spreading to the rest of the commonwealth. I think that there is no great harm in retaining 10
the word "quarantine," and that, if we were to eliminate this word, the day might come when we would very
much regret having done so.
Sir JOHN DOWNER.- 15
We are handing over to a Federal Government certain limited authorities in the easiest way,
preserving to ourselves all the authorities which we think we can better exercise.
And
Sir JOHN DOWNER.-
We keep our property; we are left to the free exercise of our brains and bodies; there is no interference 20
with the individual; state rights are to be preserved. Surely, collaterally with that, state rights ought to
be preserved too.

Mr. KINGSTON.-Section 100 preserves the existing legislation.
Mr. DEAKIN.-Yes; and section 101 provides that when a law of a state is inconsistent with a law
of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the
inconsistency, be invalid.
30
Therefore, Colonial laws would remain but State legislation subject to Commonwealth law.

Mr. REID (New South Wales).-I have already spoken on this matter so fully that I certainly do not propose 35
now to say very much, but I do regret that the Premier of South Australia does not pay some attention to a set
of considerations which, although they do not affect his colony, are very serious matters in one of the
colonies invited to join in this union. And I must press on my right honorable friend to recollect that the very
basis of this attempt at federal union was that, as far as possible, consistently with federal union, the rights of
the several states, and the sovereignty of the several states, should be preserved. Indeed, the original 40
resolution, upon which the whole movement was based, spoke of the voluntary surrender of rights and
privileges. We have gone largely forward up to this point, with a great deal of success, on these essential
lines. We have endeavoured to deal with broad principles, irrespective of the way in which they may affect
this or that part of Australia. For the sake of these broad principles we have all been willing to leave the
actual working of the Constitution, in any precise direction, to the fortune of party warfare in the 45
constituencies after federation is accomplished.

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Mr. HIGGINS.-
We must see to-day that the rights of individuals, even unpopular individuals, are preserved in the 5
Constitution. I think Sir John Forrest said that I personally had not got sufficient respect for the rights of
individuals.

Mr. HIGGINS (Victoria).-I should like to remind my honorable friend (Mr. McMillan) of what took place
at Adelaide. If he looks at the report of the proceedings of the Convention there, page 732, he will see that
Mr. Holder clearly expressed his views in the following words:-
What I wish is that these rights should be preserved which have been acquired up to the time that the
Commonwealth makes its franchise. 15

Mr. OCONNOR (New South Wales).-I do not think that anybody can doubt the absolute correctness of the
criticism of the leader of the Convention upon the words of sub-section (12) as they stand in the Bill at the 20
present time, as a matter of law. But the debate on this question has satisfied me that there are many practical
reasons why those words should remain unaltered. I am sure Mr. Barton only expressed his opinion of the
words themselves, and that be has no very great wish either one way or the other. I will state briefly why I
think sub-section (12) should remain as it stands. We have, over and over again in this Convention, shaped
our course by considerations as to the practical condition of things. It may be that the words in question are 25
vague, but we find in exactly the same words a distinction, accurate and definite, of the sphere within which
this jurisdiction has been already adopted in some Acts passed by the Federal Council, which have been in
force for over ten years. During those ten years the fisheries of Western Australia and Queensland have been
controlled by those two colonies respectively, and those colonies have exercised very important duties in
regard to the fisheries in question. I take it that we shall wish, as far as possible, in regard to all matters 30
handed over to us that we should occupy the place of the Imperial Government, and be able to assure
Queensland and Western Australia that we will not derogate from their power of dealing with these matters.
Now, although we have preserved, by an early clause in this Constitution, all rights existing under Acts
passed by the Federal Council, there would be a danger to those rights if those laws could be amended
or dealt with in any way. Interests have grown up, these spheres of influence have been actually used, 35
and the laws of these colonies have been brought to bear on them. Therefore, I think it would be
undesirable, by altering the wording of this Act, to throw any doubt on the exercise of that jurisdiction.
And
Mr. BARTON.-We ventured to make an addition to the clause which, I think, will meet with the approval
of honorable members. There will be cases in which officers will be transferred to the Commonwealth, not 40
with the department in which they have been serving; their departments may not be transferred at all, but they
may be officers necessary to the service of the Commonwealth, and there may be the consent of the Governor
in Council of the state obtained to their being transferred. In that case they should not be prejudiced
either. I think honorable members will admit that if a case of that kind arises, and the Commonwealth wishes
to have the services of an officer, and it is arranged with the state he is serving that he shall be transferred to 45
the Commonwealth, that transfer should not be carried out without his rights being preserved.

Mr. MCMILLAN.-Then I say, leave it alone. We are dealing now with, a written Constitution, and with a 50
Federal Government, in which the rights and, privileges of the states are preserved. If, after all these
arrangements and all this circumlocution, a law is not passed it will be better to wait until the people have
made themselves thoroughly acquainted with the subject. One of the great curses of modern politics is the
desire to legislate on everything.
55

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Mr. WISE.-My friend has anticipated me. That helplessness drives the American to the referendum
because of the utter ineffectiveness of the political machinery. Again I will quote-and it is the only
quotation I shall make-a passage from the work of Mr. Cree, which I recommend to the perusal of all
interested in the subject. Although his book is written in the strongest terms in advocacy of the
referendum, every argument he uses shows that his advocacy rests on a confessed mistrust of 5
Parliament, which cannot, in any degree, be applied to a country where the people are proud of their
Parliaments. Mr. Cree, after speaking of the corruption and tyranny of the party machinery, and the
inability of the individual voter to make his will felt in consequence of the tyranny, proceeds:-
Party government means supremacy of party leaders. In those leaders is practically vested the power to
subjugate all the official agencies of the State to their will, so that such will becomes that of the State, and 10
government by the people is only a fiction instead of a fact. The leaders of parties frame all political
issues, declare all party policies, name all candidates for office, and the electors but choose between the
rival organizations. But that is no more than a power to say to which oligarchy of managers or "bosses"
they will confide the control of the State.
Under such a system the party, leaders do not need to consider public opinion, further than its approval or 15
consent may he necessary to secure the adoption of their avowed purposes, and the election of themselves to
power. But great and important as is this power of ratification or rejection of party programmes and party
leaders, on the part of the voters, it leaves them without any real positive political initiative, and limits them
to a sort of negative action. A choice at the elections between corporate parties is all that they possess, and
this not only does not involve, but actually excludes, all expression of opinion on the part of the voters unless 20
the contending parties represent clearly-defined conflicting policies on specific questions, or really stand for
permanent diverse views and tendencies. The contention of the parties for the favour of the electors assumes
the fact of the existence of one or the other of these supposed cases. On no other assumption can the existence
of party be for a single moment justified.
But so far as representing a clearly-defined line of action on specific measures of policy is concerned, 25
we cannot recall a single case in the history of the United States where any great national party has done it.
And
Mr. WISE.-
That distinction is, that this is a union of equal states, whose equality, or, at all events, whose individuality, is
to be preserved so far as is compatible with the higher interests of the community. Then there is another 30
assumption on which we proceed, but which, I think, my honorable friend ignored. That assumption is that
federation is going to be worked by men who wish to keep the Federation together, and not by men who are
going to use all their ingenuity to destroy it.

Mr. BARTON.-
themselves choose to change it, is contained in the provision that the interpretation of the Constitution
by the High Court is to be final. Of course it will be argued that this Constitution will have been made 40
by the Parliament of the United Kingdom. That will be true in one sense, but not true in effect, because
which those principles are enforced, will all have been the work of Australians.
And
Mr. BARTON.- 45
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 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 50
freedom of 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 Constitution with legislative provisions to protect
the citizen from interference. Under this Constitution he is saved from every kind of interference. 55
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

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freedom in this Constitution. There is the guarantee which none of us 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 Constitution; and, 5
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 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, 10
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 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 15
Government and the Parliament of the day-shall not become the masters of those whom, as to the
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, 20
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. Having provided for all these things, I think this Convention has done
well. The question for us is this-the question for the electors is this: Is this a Constitution which will enable a 25
free people to come together, and in community together to work out their own destiny? Who can deny it? Is
it a Constitution which gives all reasonable and liberal guarantees of freedom? That can only be answered in
one way. Is it a Constitution the action of which, until amended by the people, is preserved and safeguarded?
There is only one answer to that. Is it a Constitution which the people themselves, by their will expressed by
their Parliament and themselves, are able to alter to suit their needs under conditions of reasonable thought, 30
without unreasonable difficulty? There can be no answer but one to. that question. Then, if the Convention.
has done those four things, I take it that, it has done its work.

The following should be held in consideration where Mr Howe pursued pensions in that
corporations would go bankrupt, etc. 35
His Honour CALLINAN J stated;
QUOTE
The founders would have been well aware of the capacity for causing national financial consequences, of
corporations and their predecessors, various forms of partnerships
[1080]
. The collapse not just of banking
corporations but also of land and pastoral corporations would have been very fresh in their minds 40
when they wrote the Constitution. As I have said in other cases
[1081]
, judges, as unelected members of
judicial institutions, should be careful about forming views about social and economic conditions. But
even if they can, do or even must, in some cases for some purposes, they, including judges of this Court,
should not use those views to alter the Constitution.
45
836 It is unnecessary to repeat what was said in the speeches for the bills for the referenda seeking a
corporations power broad enough to cover industrial affairs in the way that the Act here seeks to do. All that I
need do is point out that almost invariably, the speakers and Parliament itself, repeatedly, accepted that the
relevant constitutional power did not exist.
50
837 It is necessary to consider the Convention Debates on the topic.
END QUOTE
Well, without seeking to quote the extensive text about how pensions came about by the collapse
of corporations, etc, as it has already been extensively canvassed in my already published books,
I do however take up the invitation to consider the Hansard records of the Constitution 55
Convention Debates.

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Mr. GLYNN (South Australia).-I should like to ask a question with regard to clause 75, as to whether it is
intended to leave the right of appeal from a state or the Federal High Court itself direct to the Privy Council,
as it stands in the Bill, or whether the matter can be subsequently opened by the Parliament?
Mr. BARTON (New South Wales).-I am afraid that if I were to answer questions as to what is intended to
be done, I should expose the Drafting Committee to a flood of interrogations. I can only say that what we 5
intend to do is to carry out the decisions of the committee. Of course there are one or two cases in which
the [start page 2439] decisions which have been arrived at require a certain amount of interpretation in
the light of the debates, and in those cases we shall take what was said, as well as what was put in the
Bill, for the purpose of ascertaining what the movers of provisions desire. In the case of the proposal my
honorable friend carried, and which was put as a proviso to clause 74, it is evident that the words as they 10
appear are only in the nature of instructions to the committee, and they will have to be interpreted in
the light of statements made by my honorable friend in answer to inquiries by me. That is the course that will
be pursued. When an amendment, as carried, is intended only as a suggestion to the committee, it will be
interpreted in that way.
It means that some parts of the Constitution, such as Section 44 of the Constitution, were 15
revamped by the Drafting Commission but not intended to alter its meaning as it was prior to the
revamping of the various clauses it had about office of profit in chapter 44 relating only to
Commonwealth of Australia office of profit and not as was claimed by the High Court of
Australia in Sykes v Cleary it related to State office of profit. Likewise Sue v Hill was wrongly
decided due to incorrect interpretation by the High Court of Australia. I view that if after more 20
then one hundred years the judges cannot even get the basics rights no wonder they made a total
mess of the Amendment Act regarding WorkChoices legislation.

* Surely you cannot expect the judges to research the entire debates to try to get an
understanding of what constitutional meanings are? 25

**#** I see no justification in them taking out of context material and by this purport
constitutional provisions to have some kind of meaning where in fact this is contrary to the
intentions of the Framers of the constitution. If they cant handle the job then they should vacate
their positions but they cannot argue, as John Howard too often does, that he didnt know, no one 30
told him, etc. they are appointed to do a specific job and that is to appropriately interpret the
meanings of the Constitution and they are getting paid for this to do so and as such must be
competent in doing so. In Victoria we had a Chief Justice retiring from the Supreme Court of
Victoria which I understood actually never was a lawyer. And, I see no need for a judge to
having to be a lawyer, in particularly not if we end up with the sheer and utter nonsense such as 35
in Sue v Hill where the Court did not hand down a decision upon LEGAL FACTS but upon
LEGAL FICTIONS.
It must be considered that the Framers of the Constitution intended that provisions in the
Constitution should be read together. Various other statements recorded in the Hansard records
of the Constitution Convention Debates underline this to be so as to subsection 51 that they must 40
be read together to interpret the intentions of the Framers of the Constitution. Therefore
Subsection 51(xx) must be considered also but not restricted only to subsection 51(xxxv) but also
with any other constitutional provision, including for example Section 116.


To give a better perception as to how this statement was arrived to I am quoting more 50
extensively from the Hansard below. Therefore where the usage of subsection 51(xx) would be
repugnance to the application of subsection 51(xxxv) then subsection 51(xx) must be given a

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narrowed application to avoid the prohibition specifically stated in subsection 51(xxxv) to be
offended against. It could not be ignored that the Framers of the Constitution when framing this
Constitution were aware of what they were prohibiting in subsection 51(xxxv) and having done
so could not be held to have been ignorant to what they intended with subsection 51(xx) and as
such their intentions, many of which were expressed in statements quoted in this document, then 5
must be appropriately considered.

Mr. REID.-I do not like to refer to a certain burning question, although it has ceased to be so burning now. 10
But take the case of the rivers. Irrigation is within the sovereign powers of a state. As to navigation, the
same subject is within the sovereign powers of the Commonwealth. In administering the respective
laws, things may be done which on one side or the other may be considered to be wrong. As the Bill at
present stands, if the law of the state with reference to irrigation conflicts, and is inconsistent with the law of
the Commonwealth with reference to navigation, it is simply sufficient to point out to the court that the state 15
law is inconsistent, and down goes the state law, apart from any element of equity or fairness. And, although
there might be an opportunity to so adjust the respective claims as to do justice between them without
injuring either, none of these considerations would come in. It would only be necessary to point to the
Commonwealth law, and to show that the state law was inconsistent with it.
Mr. HIGGINS.-It must be a valid Commonwealth law. 20
Mr. REID.-Yes, but a valid Commonwealth law may in the interests of navigation prevent irrigation.
It may absolutely prevent any water conservation. I do not suppose such a thing would ever happen,
but I only refer to it by way of illustration. If it did happen the aggrieved state, on which a terrible
injury would be inflicted, has to appear before the High Court to complain of this. It would be told, it is
true this is an abominable wrong, and we only wish we had power to redress it; but this Act 25
deliberately states that when the federal law comes into collision with a state law, passed in the exercise
of the state's sovereign powers, still that law must go down, just as if it was an interference with a
subject handed over to the Commonwealth. There is no distinction between the two cases. That is a
very dangerous position of supremacy in which to put the Commonwealth. It practically has this effect,
in that very wide and nebulous area where the sovereign, [start page 2270] rights of the state and the 30
rights we wish to hand over to the Commonwealth come into collision, without any sort of
consideration to the rights or the wrongs, the law of the states as to its sovereign powers must go down.
If we intend that, well and good. But if it is inserted in the Constitution I can conceive a very great
handle being made of it by those who would say that we have to leave independence to the states in
connexion with every subject not handed over to the Commonwealth, and that, while affecting to do 35
that, we practically put the states in great danger, because their laws made within their sovereign
powers may happen to come into collision with the Commonwealth law.
Mr. OCONNOR.-Would not that contention be involved in the interpretation of clause 99?
Mr. REID.-That is where it seems to me the difficulty would come in. In a clause before 101, which in
my copy of the Bill appears as clause 103, it saves the Constitution of the states in respect of all matters 40
not handed over to the Commonwealth. But when we turn over the page, and come to clause 101, we find
that it practically overrides this provision, and says-"True, we leave to you all those rights which are not
taken away from you in this Constitution as matters of legislation; but as to all those rights we have left to
you you must hold them subject to the risks of a federal law coming into collision with them." I am speaking
of a federal law on a federal subject coming into collision with a state law. In case of that collision the 45
sovereignty of the state goes without any hearing on behalf of the state. The court would simply have to
decide that the state law came into collision with the federal law, or was inconsistent with it, and then the
state law is out of court without any chance of redress. Do we propose to leave the Constitution in that state?
If so, section 101 overrides the previous section, and makes all those rights reserved to the state subject to
collision with Commonwealth legislation on other matters, and in such case the Commonwealth law shall 50
prevail. Let us take the addition to clause 52, which was made at my instance, about the waters. That is, a
case where there are two jurisdictions over the same thing for different purposes. I am afraid that those words
added at the end of section 52 would be absolutely in conflict with section 101. If the Commonwealth

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legislate so as to prevent, in the interests of navigation, water conservation-a thing we do not conceive
of, but which may be used as an illustration-then the state would go to the High Court and complain of
the action of the law of the Commonwealth. The state would contend that that Commonwealth law
abridged the rights of states in regard to water conservation, as section 52 expressly provides that the
rights of the state to a reasonable use of the water shall not be abridged. The state would come into 5
court complaining that the law of the Commonwealth had destroyed the special provision made in
section 52; and the court would then have to look at the Commonwealth law, and then at the state law.
There might be a state law sanctioning a work of water conservation, and there might be a
Commonwealth law forbidding water conservation in that part of the colony on the ground that the
interests of navigation required that the whole of the water should be kept in the river at certain times 10
of the year, or all the year round. The High Court, under section 101, would find that the state law was
inconsistent with the Commonwealth law, and that the Commonwealth law was inconsistent with the
state law. What is the provision in section 101? The section reads-"When a law of a state is inconsistent
with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the
inconsistency, be invalid." If the words are added which I propose to add, the question would assume a 15
different complexion. My [start page 2271] proposal is that at the end of the clause the words be added-
"Laws made by a state concerning matters over which the Commonwealth has no power to legislate
excepted." With this amendment the High Court would find that a law on water conservation, being on
a subject on which the Commonwealth has no right to legislate, would not be subject to the terms of
this section. There is no doubt that by this amendment the respective laws would be put in a difficult 20
position, and the question would arise, what is to be done? As the Bill stands, no such question could
arise in that respect, and it would be infinitely more convenient to leave the Bill as it is, when the whole
matter could be decided on definite simple legal grounds. But I must point out that, although the
present form of the Bill is far more convenient, and I would gladly leave it as it is, it involves very
serious consequences-most serious consequences to the states, especially in the particular matter to 25
which I have referred. I feel that the amendment which was put in, and which has done so much to
remove strong feeling on the important question of water conservation, would be valueless. When any
dispute arose, and a state law came into conflict with a Commonwealth law under the navigation
provision, I feel that section 101 as it stands is really worth nothing, and could not prevail against the
Commonwealth law. 30
Mr. SYMON.-What do you propose to put in?
Mr. REID.-I admit that this is a very, difficult matter, and I have thought over it a good deal. I
propose to give the High Court a special jurisdiction when such difficulties as that arise, so that in
point of fact the High Court shall have power to adjudicate or act as arbitrator so as to give the utmost
reasonable force to both laws. 35
Mr DOBSON.-Would not that be achieved without the amendment?
Mr. REID.-No.
Mr. KINGSTON.-Do you fear a Commonwealth law beyond its jurisdiction will be given some
validity by section 101?
Mr. REID.-That is not the point. I am awfully sorry I have failed to be understood after speaking so long. 40
I am talking of a Commonwealth law, perfectly legal, on a subject on which the Commonwealth is competent
to legislate-an absolutely good law standing by itself. I am talking of another law, passed by a state-a
perfectly good state law-on a subject on which the state is sovereign by this Constitution. In reading the two it
is found that effect cannot be given to the provisions of both, and that if the Commonwealth law is to prevail,
the state law must go down. The language of section 101 is unmistakable. It does not define what, law, but 45
means any law, and any good law of the Commonwealth. It means that a good state law on a sovereign
subject of the state goes down without any inquiry.
Mr. SYMON.-Do you think the law would go down?
Mr. REID.-There is no jurisdiction to go into any question, except as to whether the laws are inconsistent. I
am sorry to have to put an illustration which revives feeling, but I hope it will not be received in that spirit on 50
this occasion. Suppose a state pass a law that a large measure of water conservation shall be carried out on the

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banks of the Darling, and there is a Commonwealth law that on that very part of the Darling nothing shall be
done to interfere with navigation-that nothing shall be done to draw water out of the river, on the ground that
such a course will make the river unnavigable. That would be a perfectly good law of the Commonwealth,
passed in the exercise of its legitimate powers, to secure a result which it was authorized to secure. That being
so, what becomes of the state law? It is a good state law, passed to effect a state work which is a lawful work 5
according to the powers of the state.
[start page 2272]
Mr. BARTON.-Would not such a Commonwealth law, if it abridged the rights of the states to a reasonable
use of the water, be an infringement of the Constitution under the proviso of sub-section (8)?
Mr. REID.-No, not unless those words are added to section 101. The laws passed under clause 52, and 10
which come into conflict, are both legally good.
Mr. SYMON.-They cannot be.
Mr. KINGSTON.-Not to the extent of the conflict.
Mr. REID.-May I ask what the honorable member means?
Mr. KINGSTON.-A law made by the state would be bad to the extent to which it conflicted with the law 15
of the Commonwealth.
Mr. REID.-Would that not be so under section 101?
Mr. KINGSTON.-I say it would be.
Mr. REID.-That is exactly the thing I am saying, and exactly the consequence I am pointing out. The High
Court would be compelled to declare the state law on irrigation works to be bad, because it was inconsistent 20
with the Commonwealth law as to the navigation of the river at that particular place. Where, then, is the
protection to the state?
Mr. KINGSTON.-You cannot avoid that unless you give the High Court power to repeal the
Commonwealth law.
Mr. REID.-Not to repeal the Commonwealth law, but to respect one of the provisos in that very law. What 25
a mockery it is to say that state rights as to the reasonable use of water are being preserved if, when a
Bill authorizing such works comes into conflict with the Commonwealth law, the state cannot be heard!
If a state law is inconsistent with the Commonwealth law, the former is ordered out of court. If I were
appearing for the state, the court would Say-"This fool of an Act says in section 101 that when your
law comes into conflict with the Commonwealth law the latter shall prevail, and the former shall, to the 30
extent of the inconsistency, be invalid. It is very unfortunate, and we think you have a great grievance.
It is very sad, but really these are the words of section 101." I say to the court-"Under section 52 there
is a provision that nothing shall abridge the rights of the state." The court replies-"That is quite true,
but the provisions of this statute"-which I shall not refer to any further in the way I did-"deal with
cases in which the laws conflict, and on this very point says that the state law must be ruled out as 35
invalid."
Mr. REID.-Then I think there can be no objection to putting words in to make the provision clear. As the
provision is at present, it might be made a very serious handle of. 40
Mr. BARTON.-What about the words you wanted the other day?

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Mr. REID.-So long as those words are put in at the end of section 101 I shall be satisfied.
Mr. ISAACS.-I am afraid those words will not do.
Mr. REID.-I do not care which words effect the purpose.
Sir JOHN DOWNER.-What do you propose?
Mr. REID.-I intend to move- 5
That at the end of clause 101 the words be added-"Laws made by a state concerning matters over which the
Commonwealth has no power to legislate excepted."
I tell the Convention frankly that unless Something is put into the Bill in the direction I suggest I should
look on all state laws as the creatures of Commonwealth legislation, to the extent to which in future they
came into conflict with Commonwealth legislation. 10
Mr. ISAACS.-That is clear.
Mr. REID.-Yes. The sovereignty of the states is preserved in one clause and is taken away in the next. The
states retain their sovereignty over subjects that are left to them only so long as they do not [start page 2273]
come into conflict with the Commonwealth law. The moment they do that the state sovereignty goes down.
Mr. WISE.-That is a necessity of any Federation. 15
Mr. REID.-Then all the battles we have had to secure a settlement of the water question have been idle
unless we are prepared to shut our eyes and accept what the future has in store for us. I am prepared to do that
to a very large extent. But this is one of those burning points which will be used very strongly in a sense
hostile to the Bill. I am very anxious to have answers ready to those who advance the sound contention-and
the Hon. Mr. Isaacs admits that it is a sound contention-that where a state law on a state subject is 20
inconsistent with the Commonwealth law on a Commonwealth subject the state law, whatever the rights or
wrongs are, must go down, and the merits cannot be gone into at all. I recognise that it may be well to leave it
at that, because the provision is one that commends itself to us as offering a means of avoiding perhaps
painful conflict. But I am overborne by the feeling that if the water question is left there I shall not be in as
strong a position as I should like to occupy in answering the criticisms that I know will be raised. If I am right 25
as to the legal effect of leaving things as they are there does seem to be a serious necessity for some
amendment.
Mr. BARTON (New South Wales).-Taking matters consecutively, the position is this: Under clause
101, if a law of a state is inconsistent with the law of the Commonwealth the latter is to prevail, and the
former, to the extent of the inconsistency, is to be invalid. It is clear, as indicated by the Right Hon. Mr. 30
Kingston, that a law of the Commonwealth there spoken of is a law made by the Commonwealth within
its legislative powers. That is to say, it must be a good and constitutional law of the Commonwealth to
have any effect in conflict with a law of a state.
Mr. REID.-We admit that.
Mr. BARTON.-Then I take it there would be scarcely any necessity for the addition the right honorable 35
member desires to make to clause 101-"Laws made by a state concerning matters over which the
Commonwealth has no power to legislate excepted." That would be equivalent to inserting after the word
"Commonwealth," as I proposed the other day, the words "on a subject within the legislative powers of the
Commonwealth." If you restrict the validity of Commonwealth laws to laws within the legislative powers of
the Commonwealth, that is the same thing as excepting those laws over which it has no power to legislate, so 40
that this amendment and the amendment my right honorable friend originally proposed, and which was to be
inserted in the middle of the clause, would be identical in effect.
Mr. KINGSTON.-He means more than that.

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Mr. BARTON.-I think he does. The amendment he proposes to add to clause 101 is really, in legal
intendment, the same as the amendment to add after the word "Commonwealth" the words "on a subject
within the legislative powers of the Commonwealth." Then we have, on the motion of the right honorable
gentleman himself, added, at the end of sub-section (8) of clause 52, this proviso-
The powers contained in this sub-section, and those relating to trade and commerce under this Constitution, 5
shall not abridge the rights of a state or its citizens to the reasonable use of the waters of rivers for
conservation and irrigation.
I take it that the effect of the word "reasonable" need only be considered in its application to states. The
difficulty is in its application to the conservation of the rights of the states.
Mr ISAACS.-As against what? 10
Mr. BARTON.-When put in correlation with the right of the Commonwealth to legislate for trade and
commerce. The powers given in the sub-section are not to abridge the right of a state to the reasonable use of
the waters of the rivers, [start page 2274] and that means its right of legislation. The effect of it, then, is that
nothing in these two sub-sections contained is to lessen the right of the state to make laws for the
reasonable use of the rivers, that is, to conserve for its own reasonable use the waters of the rivers. We 15
have the starting point in clause 101, and it is clear that a law made by the Commonwealth is not to cut down
the state right of legislation for the reasonable use of the waters of the rivers. Then all we are confronted with
is the meaning of the word "reasonable." If there is anything to justify my right honorable friend's contention
it is to be found here. What is the meaning of the word? It means a reasonable use of the waters by the state
under its laws. The whole application of the sub-section is to prevent the exercise of the trade and commerce 20
and navigation powers from inflicting certain injuries. It is a simple consequence that a law made by the state,
if tested in the courts, is to be considered in the light of whether the use it makes of the waters is a reasonable
use in relation to the power in respect to navigation and trade and commerce.
Mr. ISAACS.-It is attached only to navigation.
Mr. BARTON.-The cases which most readily suggest themselves are those that relate to navigation, 25
and it was because we all considered that navigation within that sub-section would come under the
trade and commerce laws that my honorable friend's proviso mentioned them. Clause 101 being clear,
if a law of the Commonwealth abridges the right of a state to make laws for the reasonable use of the
waters of the rivers, then that law will not be within the Constitution. If then the High Court is of
opinion that a law of a state when it is tested is a law for the reasonable use by the state of the waters of 30
the rivers, having regard to the rights of navigation and trade and commerce, then any law of the
Commonwealth by which it is sought to cut that law down would come within the meaning of the
proviso to sub-section (8) of clause 52, and would be bad. If that is so, the difficulty is to a large extent
cleared away, because if you go back to clause 101 a law of the Commonwealth which would come
under that ban could not invalidate a law of the state. 35
Mr. ISAACS-If you can draw the line.
Mr. BARTON.-I recognise that difficulty, but it will be for the High Court to decide what by statute is a
reasonable use of the water. Then there is only one question remaining, and that is the question of
jurisdiction. All these will be either matters arising under the Constitution or involving its interpretation, or
arising under any laws made by the Parliament. These are provided for in subsections (1) and (2) of clause 40
73, and sub-section (6) of the same clause extends the judicial power to matters in which the Commonwealth
or a person suing or being sued on behalf of the Commonwealth is a party. If the matter arises between
citizens it will come under sub-sections (1) or (2). If an officer of the Commonwealth is the plaintiff or
defendant it will come under sub-section (6) as well as sub-sections (1) and (2).
Mr. REID.-I am quite satisfied with that explanation, but I would like the honorable member to deal with 45
the other matter I mentioned. I want my honorable and learned friend's opinion upon a case not provided for
by special words in the Constitution, but in which a good state law on a good state subject, outside the powers
of the Commonwealth, comes into conflict with a good Commonwealth law.

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Mr. BARTON.-I will suppose that the Commonwealth is legislating for the regulation of trade and
commerce on a railway, and that the state has made by-laws applicable to that railway. There could
only be a conflict where the regulation or law for internal trade made by the state usurped in its
operation the domain of the [start page 2275] Commonwealth in legislating for trade and commerce.
That would be a conflict such as is indicated by clause 101, and we are all agreed that, to that extent, 5
the state law should go down, and for this reason, that a conflict could only arise by the state law
applying as much to inter-state traffic as to internal traffic.
Mr. REID (New South Wales).-I am very glad that I have elicited this clear statement from our
leader, because I feel sure that without some such statement on our records a great deal of mischief
would have been made on the subject. The explanation does not cover all the ground, but it covers it as 10
nearly as is perhaps possible. Personally, I am entirely satisfied with it, and I now see that there would
be no utility in pressing my amendment. I would, therefore, ask leave to withdraw the amendment.
Mr. ISAACS (Victoria).-Before the amendment is withdrawn, I should like to observe in this matter, that
the position comes just down to what Mr. Barton has said, that the jurisdiction of the Commonwealth in
regard to navigation stops short at the point, wherever that point may be, where the state would be 15
unreasonable in its use of water for conservation or irrigation. Now, I am not quite clear in my own mind as
to whether that is a matter for the High Court. I can understand why it should not be, because the question
of reasonableness of the use of water as to locality, or as to extent, or as to duration, depends on
questions not of law, but of such enormous political and far-reaching effect, that it is almost impossible
to conceive that the decision of such questions could be remitted to the judgment of the High Court. 20
And when you consider that we have to regard the extent of territory to the needs of the people, the
condition of productivity of their land, their future requirements, and their requirements from day to
day, and from year to year-what is reasonable for one day would not be-reasonable for the next-it is
almost impossible to imagine that the High Court can give a final binding judgment as to the validity of
a state law which can bind the matter for all time. Now, it seems to me that it is putting a strain on the 25
High Court that it ought not to bear, and I am not quite clear, certainly not as clear as Mr. Barton is, in
thinking that the High Court will have to decide what is reasonable or not, because reasonableness in political
matters is a question that is generally left to the Legislature. And if it is within clause 73, then I come back
to the point to which I directed the attention of the Convention a few days ago in regard to the meaning
of the word "matters." It is put that it is a "matter." Now, if that is a matter, I do not know what is not 30
a matter; and if the High Court is to be asked to decide any matter between states, or between the
Commonwealth and states, it is putting a construction on the word "matter" that we ought to stop
short of putting on that word. I understand the word "matter" means a question of ordinary judicial
interpretation in a controversy that is known as an action or a suit, and I think that we may well
hesitate to put such a large construction on the word "matter," because if we do we are asking the 35
High Court to accept a responsibility and a jurisdiction that is not found elsewhere. Of course, with
regard to such questions, I think the answer given by Mr. Barton was absolutely unanswerable, that if a state
passes a law which is entirely within its domain-perfectly within its jurisdiction-and is therefore valid, and the
Commonwealth afterwards passes a law which is within its powers but the Commonwealth law is
inconsistent with the provisions of the existing state law, the state law must cease to have effect to the extent 40
of the inconsistency. I think that is inevitable. You cannot frame your Constitution with any other basis. But
with regard to the word "reasonable." I feel great misgiving that we are intrusting such a question to the
decision of the High Court
Mr. Reid's amendment was withdrawn.
The above makes it clear that the legislative powers must be directly within the powers granted 45
to the Commonwealth, not some imaginary powers. Also, it underlines that water and other
conservation powers was retained by the States and that the Commonwealth of Australia has no
power over these matters unless it infringes commonwealth powers, such as regarding
navigation etc. Still, we had Mr Malcolm Turnbull making statements from which I
understood that he would be willing to go to the High Court of Australia in regard of 50
constitutional powers to take over water legislative powers, as if the High Court of Australia is
merely a political tool in the hands of the Federal government to do as it is being told, so to say,
and this document further goes into this matter also.

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Sir JOSEPH ABBOTT.-
Can it be suggested, however high the Federal High Court may be in regard to attainments, that under any
circumstances the Judges of that court would have the experience, the training, and the knowledge of the men 5
composing the Court of the Privy Council? Would it be possible to separate the members of the Federal
High Court from local influences? Unintentionally, men are influenced by their surrounding
conditions. It does not follow because a man is to-day in public life as Attorney-General, and to-
morrow is sitting on the bench wearing the ermine, that he can dissociate himself or separate himself
from local surroundings and be unbiased or uninfluenced by those considerations. 10
One may ask, would the Privy Council have handed the same judgment as the High Court of
Australia did in regard of the Australia Act 1986 and the progressive independence where there
were not true LEGAL FACTS supporting this kind of argument at all but merely relied upon
how judges fancied events to have a certain application to suit their judgment to support their
kind of orders. 15
Kirby J stated
QUOTE
595 So far as s 15A of the Acts Interpretation Act is concerned, there are limits upon the power of the
Parliament to direct the courts, in effect, to make a new law or to choose what a remade law should be
[673]
.
The limit is reached where, faced with a conclusion of apparent constitutional invalidity of particular 20
provisions, a court "cannot separate the woof from the warp and manufacture a new web"
[674]
. From
time to time, this Court has invoked other metaphors to explain when the Court has arrived at that
limit. Thus, it has indicated a willingness to undertake amputation and excision, where necessary, but
not to perform judicial "plastic surgery" upon the challenged law
[675]
. By inference, this is a reference
to judicial excisions that would substantially alter the appearance of the law, presenting a law that looks quite 25
different from that which was made by the Parliament.

596 The reason why this Court will not undertake such a task is ultimately based on the proper
function of the Judicature established by the Constitution and on the principle of the separation of the
judicial from other governmental powers. Thus, in the guise of construing a challenged federal law, the 30
Court cannot be required to perform a feat that is, in essence, legislative and not judicial
[676]
.
END QUOTE
QUOTE
599 Conclusion: severance unavailing: When the foregoing well-established principles are applied to the
present proceedings, they result in the invalidation of the entirety of the Amending Act. 35
END QUOTE
QUOTE
607 To resolve the intersection of these rules, it is necessary to recognise that a national Constitution,
like any legal document, must be read as a whole, not in bits and pieces. What this fundamental
principle requires in the present case is the confinement of the large powers of the Federal Parliament 40
to enact laws with respect to corporations. That confinement would preserve the constitutional
prescription that federal laws with respect to the subject of industrial disputes (as provided by
s 51(xxxv) of the Constitution) have to comply with the features deliberately imposed by the
Constitution on the Federal Parliament for that aspect of its lawmaking. That is, such federal laws may
not be enacted by direct federal legislative provisions. Rather, they must involve, by the processes of 45
conciliation and arbitration, the intervention of independent decision-makers who hear both sides.

608 To insist on this resolution of the intersecting principles fulfils this Court's role as the guardian of
the Constitution. It preserves decisions of this Court, delivered over more than a century, that have
either held, or impliedly accepted, that the corporations power has to be read as subject to the 50
industrial disputes power. The view now endorsed by the majority of this Court effectively discards a
century of constitutional doctrine. It ignores the express structure of the Constitution and the language of
the two heads of constitutional power in question in this case, each of equal validity and effect. I refuse
to accept that our predecessors in this Court were so blind to the true meaning of the Constitution that their
decisions, in such number and detail over the past hundred years, were pointless exercises in constitutional 55
futility. Yet that is the hypothesis inherent in the decision now reached by the majority.

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609 Preserving industrial fairness: As history has repeatedly shown, there are reasons of principle for
preserving the approach of our predecessors. The requirement to decide industrial relations issues through the
independent processes of conciliation and arbitration has made a profound contribution to progress and
fairness in the Australian law on industrial disputes, particularly for the relatively powerless and vulnerable.
To move the constitutional goalposts now and to commit such issues to be resolved directly by federal 5
laws with respect to corporations inevitably alters the focus and subject matter of such laws. The
imperative to ensure a "fair go all round"
[690]
, which lay at the heart of federal industrial law (and the State
systems that grew up by analogy), is destroyed in a single stroke. This change has the potential to effect a
significant alteration to some of the core values that have shaped the evolution of the distinctive features of
the Australian Commonwealth, its economy and its society. 10
END QUOTE
QUOTE
612 This Court and the Australian Commonwealth need to rediscover the federal character of the
Constitution. It is a feature that tends to protect liberty and to restrain the over-concentration of power which
modern government, global forces, technology, and now the modern corporation, tend to encourage
[694]
. In 15
this sense, the federal balance has the potential to be an important restraint on the deployment of power. In
that respect, federalism is a concept of constitutional government especially important in the current age.
By this decision, the majority deals another serious blow to the federal character of the Australian
Constitution. We should not so lightly turn our backs on the repeatedly expressed will of the
Australian electors and the wisdom of our predecessors concerning our governance. 20
END QUOTE

QUOTE
624 Section 14 requires that the Act be given "every valid application", if it has any invalid 25
application.
END QUOTE
This is the absurdity His Honour pointed out that somehow an Act that is invalid becomes by this
valid. Then why have a constitution for if the Parliament can enact anything and by mere
declaration declare an invalid legislation to be valid. Then what were the judges doing in the first 30
place if the commonwealth of Australia can validate its own laws?
As was made clear by the Framers of the Constitution the Constitution was to be interpreted as to
what they stated were their intentions.
Again;
Mr. REID (New South Wales).-I am very glad that I have elicited this clear statement from our leader, 35
because I feel sure that without some such statement on our records a great deal of mischief would have
been made on the subject.
Therefore, the usage of on our records indicates that it is to be used for later times.
The Constitution is a PERPETUAL LEASE, that cannot be revoked by the British
Parliament, the Commonwealth of Australia and/or the States as it is embedded in the 40
Constitution, as set out also in this document below, that

Mr. SYMON (South Australia).-I wish to say one word or two before we part. I do not intend to enter into 45
any detailed examination of, or any elaborate apology for, the Constitution which we have been engaged in
of nothing of greater magnitude in the whole history of the peoples of the world than this question 50
upon which we are about to invite the peoples of Australia to vote. The Great Charter was wrung by
to themselves.

This also underlines that when it comes to the civil rights of the people, then the High Court of 55
Australia cannot just ignore this, as it appears to have done in its 14-11-2006 judgment, but must

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show appropriate CONSIDERATION as to how matters affect peoples civil, religious and
political rights as those were not handed over to the Commonwealth of Australia, as the
document below sets out also.
As is set out below, the Framers of the Constitution never intended to give civil rights, to the
Commonwealth of Australia, and while this document may be considered extensive, it could not 5
address every issue in all details, and I view neither needs to do so as my various books already
published over the years themselves do so. It ought to be sufficient to present a document, as like
this, to show there is an question about the validity of the judgment and so orders of the High
Court of Australia on 14 November 2006 in regard of the amendment Act legislation commonly
known regarding WorkChoices. In my view, the credibility of the High Court of Australia itself 10
is in question because of its conduct, and to be honest, I am wondering if the judges were
fraternizing again with one or more of the parties, as I experienced to have occurred in the past!
Jurisdiction (Black's Law Dictionary): It is defined as:
"The legal right by which judges exercise their authority. It is the authority by which courts and
judicial officers take cognizance of and decide cases. It is the authority, capacity, power or right to act." 15

Mr. BARTON (New South Wales).-That is an alteration of substance which I will explain. I agree with the
object of the clause as proposed to be limited by the amendment which I am now proposing. That is to say, I 20
quite agree that any elector who, at the establishment of the Commonwealth or afterwards, has, under the
law in force in any state at the establishment of the Commonwealth, the right to vote at elections should not
be prevented by any law of the Commonwealth from exercising that right.

Tell this to the thousands of State electors who are denied to vote in federal elections because the 25
Commonwealth has draconic legislation to close the rolls and/or that an elector may be overseas,
and this is a example how the High Court of Australia, as the GUARDIAN OF THE
CONSTITUTION, has ongoing permitted this to occur. It may indicate what I am on about in
this document, that far too often the High Court of Australia might in fact be directly and/or
indirectly the culprit for what is being done unconstitutionally/illegally. Is, so to say, needs to get 30
its Act together so others will not suffer the same as the ill conceived 14 November 2006 orders
in the IR WorkChoices legislation (Amendment Act)
Dr. QUICK.-Certainly, with regard to constitutional questions. I am prepared, if necessary, to give up the 35
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, 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 40
of procedure.
As this document sets out it is constitutional TERRORISM to force the Senate to vote without
giving it sufficient time and as such the High Court of Australia, in my view, was bound to
declare the legislation invalid as it denied certain members of parliament appropriate time to
consider the Bill before the Parliament and to vote in a manner that was to the best interest to 45
their constituents. This document does quote a statement about the denial of a copy of the
Amendment Bill and as such the High Court of Australia, in my view, has a duty to rectify this

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matter. It cannot abrogate this duty by holding that it was not made aware of this as after all, its
judgment was in my view obtained by deception/concealment by the lawyers of the
Commonwealth of Australia ( such as the content of my 2-7-2004 (040702jh.doc 21879
characters being about 9 pages), 11-7-2004 (040711gh-High Court deception.doc, being about
481.279 Characters being about 176 pages) 26 July 2005 (050726jh.doc), and the 12-6-2006 5
(060612-Fair Pay Commission submission.pdf being about 130 pages) correspondence (of which
a copy has been published in my various published books and as such it is on public record this
to be so.
QUOTE 11-7-2004 CORRESPONDENCE
In my view, the case of ATTORNEY-GENERAL (VI CT.); EX REL. BLACK v. THE COMMONWEALTH [1981] 10
HCA 2; (1981) 146 CLR 559 (2 February 1981) was wrongly decided!
In my view, Murphy J (dissenting judge) was correct!

While Wilson J stated at 42;
While on present authority it is not permissible to seek the meaning of s. 116 in the convention debates, 15
He then goes into some historical details as to what occurred at the Constitutional Conventions, albeit leave out very
relevant matters.
For example, while referring to that the Constitutional Convention rejected amendments, he does not disclose why,
as some set out below by me!
The mistake that was made by the judges, other then Murphy J, was to try to restrict prohibition to what was stated 20
in Section 116! Even using the argument of the usage of the word for, etc.
Wilson J ought to have been aware, after all he was referring to the Constitutional Convention Debates, that the
framers defeated the prohibition clause upon the basis that there was absolutely no need to have it in the
Constitution as there was no specific power given for the commonwealth of Australia to legislate in regard of
religion! Hence, Section 116 is no more but a limited prohibition that was to ensure that it was apparent that there 25
was no constitutional right by the Commonwealth of Australia to make any kind of law regarding religion, but didnt
diminish in any way the fact that without Section 116 there was already no constitutional power for the
Commonwealth of Australia to legislate in regard of religion.
It was because of the preamble that Section 116 finally was accepted as a mere specific clarification without limiting
the overall denial of legislating in regard of religion. 30
Hence, the Court omitted to argue the case that without Section 116 there was already no constitutional power for
the Commonwealth of Australia in any shape or form to fund religion, as no such powers were provided within
Section 51 and 52!
Again, the framers held there was really no need for Section 116, as the prohibition was already implied, but for the
sake of some form of clarification certain matters were specifically set out. 35
The argument therefore not considered was if there was any constitutional powers within Section 51 or 52 for the
Commonwealth of Australia to provide funding to non secular schools?
As set out below, Section 96 cannot be taken apart of Section 51 and 52, as grants can only be provided in regard of
what is within legislative powers of the Commonwealth of Australia.
As I have also set out in my book on CD INSPECTOR-RIKATI on CITIZENSHIP, not even foreign aid can be 40
appropriated by the Commonwealth of Australia, as Section 51(xxix) external affairs is limited to what is within the
constitutional legislative powers of the Commonwealth of Australia and cannot be used for matters outside its
constitutional legislative powers. It is therefore a grave error to presume that Section 51(xxix) provides for millions
of dollars being spend on Papua New Guinea, as it is not part of the Commonwealth of Australia! The
Commonwealth of Australia can only spend monies for the Commonwealth of Australia in regard of the limited 45
constitutional powers it was given!
END QUOTE 11-7-2004 CORRESPONDENCE
And
I feel that honorable members who value state rights reserved [start page 1736] to the states, who value the 50
preservation of the individuality of the states for state purposes, will agree with me that it is with the state we
ought to leave this power, and that we ought not to intrust it to the Commonwealth. For instance, our factory
laws are left to the state.

Again; 55

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the Federal Government as a subsidy for our schools," and thus they might wink at a violation of the
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 5
provision for a referendum? Why consult the people at all? Why not leave this matter to the Ministers
of the day? But the proposal has a more serious aspect, and for that reason only I will ask permission to
occupy a few minutes in discussing it.

It must be clear that any form of religious matter, including Sunday laws were specifically denied from 10
Commonwealth of Australia constitutional powers.
Technically, the Commonwealth of Australia cannot demand religious observance of Christmas, as many no
Christians are disturbed that their religious days are ignored while they are forced to take religious observance of
another religion.
It is unconstitutionally for the Commonwealth of Australia, even as an employee (those holding an office of 15
profit) to make any religious provisions, including religious holidays!

Also, any laws governing postal and telecommunications regarding religious days would also be unconstitutional, 20
this, as like the Sunday newspaper, it would breach the provisions of Section 116 of the Constitution! Likewise, any
postage depicting religious matters would be unconstitutional!

Mr. HIGGINS.-The particular danger is this: That we do not want to give to the Commonwealth
powers which ought to be left to the states. The point is that we are not going to make the Commonwealth a
kind of social and religious power over us. We are going into a Federation for certain specific subjects. Each
state at present has the power to impose religious laws. I want to leave that power with the state; I will
not disturb that power; but I object to give to the Federation of Australia a tyrannous and over-riding 30
power over the whole of the people of Australia as to what day they shall observe for religious reasons,
and what day they shall not observe for that purpose. The state of Victoria will be able to pass any
Sunday law it likes under my scheme. It can pass any law of that sort now; but surely it is a proper thing for
a state, and it is not a proper thing for the Commonwealth, to exercise this power. I feel that honorable
members who value state rights reserved [start page 1736] to the states, who value the preservation of the 35
individuality of the states for state purposes, will agree with me that it is with the state we ought to leave this
power, and that we ought not to intrust it to the Commonwealth. For instance, our factory laws are left to
the state. Those laws provide for a certain number of hours of rest, and that employes shall not work on
Sundays, and so forth. If we leave the factor laws to the state we should also leave this question of the
observance of Sunday to the state. I will not take it from them. At the same time, I am not going, no matter 40
what the consequences are, to help to intrust this power to the Commonwealth. I want the people of the
different states to manage their own affairs as well as they can. I may say frankly that I, rightly or wrongly,
am one of those who think that the Christian or religious observance is no good if it is enforced by law. I am
one of those who think the religious observance is of no value unless it is the outcome of a man's own
character, and the outcome of a man's own belief. 45
Again;
For instance, our factory laws are left to the state.

Somehow we seem to have that the Commonwealth of Australia has taken over those rights, such as using the
Arbitration Commission, even so this clearly is unconstitutional! The Arbitration commission can only deal with 50
matters that are beyond the boundaries of a single State, but cannot deal with employment matters and its disputes
that were within the boundaries of a single state.

The full correspondence can be located in the relevant listed book on CD as shown the chapters 55
and subchapters below.

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Likewise confirmation material to prove the documents had not just been forwarded but were
actually confirmed as having been sent. This record was established as to avoid any possible
future claim that the documentation was never received.

Likewise 375.912 Characters being about 130 pages of the 12-6-2006 correspondence was 5
submitted to the FAIR PAY COMMISSION which had provided an email address;
submissions@fairpay.gov.au
The email has a time and date recorded as follows; Monday, June 12, 2006 01:21 am
QUOTE EMAIL
From: G. H. SCHOREL-HLAVKA <INSPECTOR-RIKATI@SCHOREL-HLAVKA.COM> 10
To: submissions@fairpay.gov.au
Cc: inspector-rikati@SCHOREL-HLAVKA.COM
Date: Monday, June 12, 2006 01:21 am
Subject: submission 12-6-2006 as attachment
15
FAIR PAY COMMISSION
12-6-2006
Locked Bag 35003
Collins Street West Re; Submission 12-6-2006
Melbourne VIC 8007 20

submissions@fairpay.gov.au

AND TO WHOM IT MAY CONCERN
25
Please note, submission 12-6-2006 is attached.

Text version of this message (216B)
060612-Fair Pay Comission submission.pdf (1MB)
END QUOTE EMAIL 30

Time and again in these and numerous other documents did I advise the Federal Government and
others about this, and so well before the actual Amendment Bill was before the Parliament. As
such the Federal Government lawyers ought to have been aware of this correspondence and have
addressed the issues. I have done extensive research on the matter and willing to allow the 35
lawyers to benefit from this. It is not relevant to me if John Howard might once again claim no
one did bring it to his attention, as I do not run his office and neither should the High Court of
Australia concern itself with such kind of absurd excuse as ultimately ignorance is no excuse.
The documents themselves also show that they were forwarded to various other Members of
Parliament and as such ample of opportunities for the Federal Government to attend to it. 40
Personally I had never any doubt the Federal Government would unlikely reveal to the High
Court of Australia all relevant details/information as I expected it was more concerned to obtain
power or to have power recognised to exist at all cost then to risk loosing the case with revealing
details/information I had so often provided to the Commonwealth of Australia.
If then the High Court of Australia were to nevertheless ignore all this and still maintain its order 45
then to me this would underline the High Court of Australia is bias.

The documents can be located in the following publications;

INSPECTOR-RIKATI on IR WorkChoices Legislation (Book-CD) 50
A Book about the Validity of the High Courts 14-11-2006 Decision
ISBN 978-0-9751760-6-1

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CHAPTER 037A CORRESPONDENCE/FRM/26-FAIR PAY COMMISSION/FRM/060612-Fair Pay
Commission submission.pdf

CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/ 050726jh.doc 5
Confirmation of the email forwarded and a copy received by me is dated; Date: Tue, 26 Jul 2005 00:01:50
+1000

CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/040702jh.doc
Facsimile records show it was faxed successfully at the recorded time 6:05PM on 2/07/04 9 pages 10

CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/ FRM/040711gh-
High Court deception.doc
Confirmation of having forwarded it by email was received Date: Sun, 11 Jul 2004 23:42:54 +1000
15
INSPECTOR-RIKATI & What is the -Australian way of life- really?
A book on CD on Australians political, religious & other rights
ISBN 978-0-9751760-2-3 was ISBN 0-9751760-2-1 Published 6-7-2006

CHAPTER 01A CORRESPONDENCE/FRM/FAIR PAY COMMISSION/ FURTHER READING 20
MATERIAL /060612-Fair Pay Commission submission.pdf

CHAPTER 01A/FRM/JOHN HOWARD 0262734100/FRM/ 050726jh.doc
Confirmation of the email forwarded and a copy received by me is dated; Date: Tue, 26 Jul 2005 00:01:50 25
+1000

CHAPTER 01A/FRM/JOHN HOWARD 0262734100/FRM/040702jh.doc
Facsimile records show it was faxed successfully at the recorded time 6:05PM on 2/07/04 9 pages
30
CHAPTER 01A/FRM/JOHN HOWARD 0262734100/FRM/040711gh-High Court deception.doc

INSPECTOR-RIKATI on the battle SCHOREL-HLAVKA v BLACKSHIRTS
For the quest of JUSTICE, in different ways. Book on DVD. 35
ISBN 978-0-9580569-4-6 was ISBN 0-9580569-4-3 Published 17-3-2007

The email has a time and date recorded as follows; Monday, June 12, 2006 01:21 am 40

CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/ 050726jh.doc
+1000
45
Facsimile records show it was faxed successfully at the recorded time 6:05PM on 2/07/04 9 pages

CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/ FRM/040711gh-
High Court deception.doc 50

INSPECTOR-RIKATI & How to lawfully avoid voting (CD)
A book on CD about Australias federal election issues & rights
ISBN 978-0-9751760-4-7 was ISBN 0-9751760-4-8 Published 28-3-2007 55

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CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/ 050726jh.doc 5
+1000

Facsimile records show it was faxed successfully at the recorded time 6:05PM on 2/07/04 9 pages 10

CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/ 040711gh-High
Court deception.doc
15
I may also indicate that in my published book on 30-9-2003 titled;

ISBN 978-0-9580569-6-0 was ISBN 0-9580569-6-X 20

The following documents refer to factory laws also;

GHSH-10-Race-isolation-disqualification-etc.doc
25
Chapter 02 - 1898 Convention re Citizen-Subject.doc

Chapter 00B Set out about CITIZENSHIP.doc

Chapter 00J CITIZENSHIP-COMMON LAW.doc 30

Chapter 00K Citizenship, etc.doc

Of this book 4 copies were provided to the High Court of Australia on the day of publication and
a further 4 copies were provided to the High Court of Australia about 4 weeks later. As such, the 35
High Court of Australia had been provided with a total of 8 copies of this publication and so its
content. It was the Queensland Court of Appeal in November 2003 that subsequently overturned
the convictions of Pauline Hanson and David Ettridge having about word for word used the set
out I had in my book as to why the convictions were errors of law, etc.
40
"As an advocate he is a minister of Justice equally with a judge, A Barrister cannot pick or
choose his clients...He must accept the brief and do all he honourably can on behalf of his
client. I say 'All he honourably can' because his duty is not only to his client. He has a
duty to the court which is paramount. It is a mistake to suppose that he is a 45
mouthpiece of his client to say what he wants: or his tool to do what he directs. He is
none of those things. He owes his allegiance to a higher cause. It is the cause of truth
and Justice. He must not consciously misstate the facts. He must not knowingly
conceal the truth. He must not unjustly make a charge of fraud, that is, without evidence
to support it. He must produce all relevant authorities, even those that are against him. He 50
must see that his client discloses, if ordered, all relevant documents, even those that are
fatal to his case. He must disregard the specific instructions of his client, if they conflict
with his duty to the court."

Page 223
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st
In my view, based upon the judgments omitting to refer to a considerable amount of material that
was relevant to the case before the Court I assume that the Federal government lawyers and other
lawyers for the states concealed from the Court relevant details/information that ought to have
been placed before the Court. I do not accept that the various High Court of Australia would have
by neglect omitted to address those issues had it been placed before the Court for its 5
consideration.
Taylor v. Taylor (1979) Fam LR 5, 289289 at 290 298 and 300 HIGH COURT OF
AUSTRALIA.
"In my opinion, the words 'false evidence' in s79A(1) do not mean evidence which is
willfully false. The sub-section should be read according to its terms. To say that 'false 10
evidence should be read as 'willful false evidence' is to introduce a provision not
expressed by the provision; cf s6H of the Royal Commission Act 1902 which speaks of a
witness 'who knowingly gives false testimony'. This interpretation is reinforced by
reference elsewhere in s79A(1) to the separate grounds of fraud and suppression of
evidence which would comprehend cases of willful false evidence. At common law, a 15
judgement will be set aside if it has been obtained by fraud. In the exercise of this
jurisdiction, it has been held that an applicant must show something more than perjury, ie.
new facts (Baker v. Wadsworth [1898] 67 LJQB 301; Everett V. Ribbands [1946] 175 LT
143). This tends to suggest that the words 'false evidence' should be given their literal
meaning" 20

R.V. Crimmins (1959) VR 270
Suppression of relevant evidence

Byrne v Byrne (1965) 7 FLR 342 at 343 25
Fraud: Usually takes the form of a statement of what is false or the suppression of
what is true.
Again;
At common law, a judgement will be set aside if it has been obtained by fraud.
30
Mr. BARTON.-
Take the case of a law passing beyond the powers given under clause 52, and which law does pass beyond
those powers, and therefore, invades the domain of the states, which are protected under clauses 99 and 100. 35
That is a matter which will be apparent on the face of the law in question, and therefore, there is material for
the High Court to declare the law invalid. And so, if you consider other cases that might arise under the
Constitution, you will find that it will always be apparent upon the face of the law in question whether it
departs from constitutional power or not, and in such cases there is material for the High Court to determine.
So it is in regard to clause 55: If it is apparent on the face of a law that it embodies two subjects of taxation 40
when it should only embody one-where, in fact, it is a tack as well as an Appropriation Bill-that will be
apparent on the face of the law, and is therefore within the functions of the judicial tribunal, because the court
is enabled to deal with what appears upon the face of such laws when they emerge (if they ever do emerge)
from Parliament.
45
Sir GEORGE TURNER: There is no doubt that Mr. Barton cannot pass the matter off in this way. What
does it now exactly mean? It means that before the House of Representatives can pass any
Appropriation Bill they will have to get a message from the Governor, and before the Senate can pass it 50
they will have to do so also.
Mr. BARTON: Yes.

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Sir GEORGE TURNER: Is that intended?
Mr. BARTON: Yes.
Sir GEORGE TURNER: You are very fond of messages.
Clause as amended agreed to.
5
What this makes clear that powers and not power is referred to and that where the purported
legislation enacted within subsection 51(xx) exceeds the powers provided for in subsection
51(xxxv) then it is unconstitutional. Actually, so are taxation laws that provide for tax
deductions as tax deductions are in effect to be considered appropriation, as it is a tax deduction
out of Consolidated Revenue and causes other tax payers to pay more so the government can still 10
raise the funding it requires. Hence, taxation legislation dealing with tax deductions are in effect
a combination of Appropriation Bill and Taxation Bill and cannot be constitutional valid.
As I have already set out extensively in past published books there is no entitlement for the
Federal Government to exclude anyone of paying the same level of tax as any other person has to
having the same combined income, and as such tax exempt income are unconstitutional. 15

Mr. HIGGINS.-Clause 55 says that such a law would be invalid. I am speaking from some little
experience in our local Parliament. A Charities Bill was introduced, and it was proposed to raise the 20
money for the charities by means of a sports tax, and additional rates upon ordinary lands and
buildings. Supposing that money was required, and the House of Representatives said that it should be raised
by a tax upon lands, the Senate might then say-"Oh, no, we can raise the same amount of money by means of
a tax on sports and lands." That suggestion could not be made, because if it were adopted there would be
two subjects of taxation in the Bill and the law would be invalid. I will take another instance: It is 25
provided that laws imposing taxation shall deal only with the [start page 2024] imposition of taxes. Under
that provision the Senate can make no condition to a law imposing taxation, and it will have to accept the
taxation as it stands, or not at all. The law will otherwise be treated as invalid, and the taxpayers could then
re-fuse to pay anything. Then sub-section (3) says-"A law which appropriates revenue or moneys for the
ordinary annual services of the Government shall deal only with such appropriation." 30
And
Mr. TRENWITH.-And yet this clause is throwing legislation into the hands of those people who cannot
agree.
MR. REID.-The lawyers.
Mr. MCMILLAN.-The lawyers? 35
Mr. TRENWITH.-Yes, thrusting it on them.
Mr. MCMILLAN.-That is one of those commonplaces which are always used. There is no clause or sub-
clause of any Bill in the world, even if it were framed by an angel from Heaven, that would not be the subject
of litigation.
Dr. COCKBURN.-The disagreement is not legal, but constitutional. 40
Sir EDWARD BRADDON.-You do not got lawyers from Heaven.
Mr. ISAACS.-No, lawyers are sent there; they are not drawn from there.

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Mr. MCMILLAN.-Looking at the clause from a common-sense point of view, are the provisions a vital
condition of the Constitution? Was it worth our while to spend days and weeks thrashing out these matters as
a compromise to the financial scheme? We are dealing now with one of the great compromises of our
financial scheme. Is that compromise, of vital importance in the financial scheme, to be made a matter of
simple procedure in the House, liable to the judgment of a Speaker or a President? Or is it, like hundreds of 5
other things, embedded in the Constitution, so that, if at any time there be an infringement, the law passed
would be invalid, and the High Court would protect the people of the country? Apart from all legal quibbles,
that seems to be the plain English of the fact. Speaking as an ex-Treasurer, I say that it is impossible to
safeguard you in the third section. I would be quite willing to put in the word "proposition," or "Bill," or
anything of the kind. All the arguments used to-day are valid against the third sub-clause. But, as against the 10
other sub-clauses, looking at it as a matter of English, and as clearly defining the rights in the Constitution, it
seems to me that they ought not to be disturbed.
And
Mr. ISAACS.-And, as Sir Samuel Griffith suggests, you might have to submit another Bill containing the
machinery for the collection of your income tax. 15
Mr. KINGSTON.-I was going to point that out also. Clause 55 provides that laws imposing taxation shall
deal only with the imposition of taxation, and I am inclined to doubt whether it authorizes the insertion
in a Taxation Bill of the machinery necessary for the collection of the tax.
Mr. REID.-No, it does not.
Mr. KINGSTON.-I do not think it does. I ask the Drafting Committee to consider this, and I would suggest 20
that it is very often convenient, in a Taxing Bill, to provide the machinery for the collection of the tax. And
yet, under this clause, the whole of a Customs Act might be invalidated by the incorporation of the usual
machinery for the collection of the tax. Further-and I see that Mr. Deakin proposes to deal with this question-
here is a provision that you shall not, in a Bill imposing duties of customs, impose duties of excise also. Now,
honorable members know perfectly well that it is highly desirable to deal with the two things at the same 25
time. They have an intimate mercantile connexion with each other, and to deal with the one and leave the
other untouched would expose us to the gravest inconvenience. If we pass this clause, with the amendment
Mr. Isaacs has proposed, we will undoubtedly have the two Houses of the Federal Parliament watchful of
each other. Each of the pre-siding officers would be jealous lest, inadvertently, an unconstitutional provision
should be accepted by his House, for which mistake he would, in some measure, be held responsible and to 30
blame. Under these circumstances, I cannot contemplate the possibility of any objection to the clause if it be
amended as proposed by Mr. Isaacs, at least any objection equal to the disadvantages which would
unquestionably accrue if you allowed the decision of Parliament, and the rulings of the President of the
Senate, or of the Speaker of the House of Representatives, to be subject to the ruling of the High Court. Why,
sir, in connexion with our meanest and smaller courts, we provide that if an appeal is to be exercised, it must 35
be exercised within a certain time, or the right of appeal is gone; but in this measure we are asked to provide
that the decision of the President of the Senate, or of the Speaker of the House of Representatives, is to be
open to challenge for all time; under the circumstances to which Mr. Reid has referred, and with the
consequences depicted by other speakers. Look at the inconsistency with which the question is dealt with in
the previous clause. One of the most vital questions, the taxing of the people, the spending of the public 40
funds, properly confided to the popular House, is put in this way-that it shall only apply in connexion with
"proposed laws." You might just as well suggest that the House of Representatives will be careless of its
rights; that it will tacitly authorize and practically approve of a measure which emanates from the Senate, and
which originates both taxation and expenditure, and under such circumstances as that, when the whole
Constitution is practically turned topsy-turvy on one of the gravest financial questions, and there is no remedy 45
whatever, once an Act is assented to; but, on the other hand, in connexion with these small matters, there is a
proposal that the High Court is at all times to have the power of review, although it could not interfere in a
grave question of the character to which I have referred. It seems to me that in a matter of this sort experience
of the past should tell us that, when we have marked out, in precise language, the relative rights of the two
Houses of Parliament, we are abundantly justified in confiding in them the duty of maintaining their 50
respective rights, and we know perfectly well that under this Constitution they will be completely protected.
[start page 2041]

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Mr. DEAKIN (Victoria).-The honorable and learned member for South Australia (Sir John Downer) paid
me the distinguished compliment of referring to me as always appreciative of the arguments urged by my
adversaries. On this occasion, and in connexion with this subject it is scarcely possible to return the
compliment. For the honorable member deals with this question, not in the judicial manner with which we are
familiar, but with much of the warmth and force of the forensic advocate. It makes one almost despair of 5
political discussion, if honorable and learned members of his eminence and ability fail to distinguish between
the several interests involved in propositions of the importance of the amendment recently submitted. A
proposal affecting the financial powers of the Commonwealth will affect both Houses, and may therefore be
made the platform of a discussion upon their rights, privileges, and powers. But the proposal submitted by the
Attorney-General of Victoria did not necessarily involve any such consideration, and was expressly aimed at 10
a difficulty of quite another kind. The whole discussion, so far as it has turned on the relative power of the
two Houses, valuable and interesting as it may have been from other aspects, is beside the issue which my
honorable and learned friend desires to raise.
Yet, the High Court of Australia did absolutely nothing about the GST (Goods and Service tax)
regardless that it is unconstitutional, as set out extensively in my already published books. 15

Re Hansard 12-4-1897 Constitution Convention Debates (Official Record of the Debates of
the National Australasian Convention) (Chapter 33 of the CD)

QUOTE 16-3-2005 correspondence to Malcolm Turnbull 20
Mr. GLYNN Does that put a maximum on military expenditure?
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 25
transferred from the States to the Commonwealth.
Mr. SYMON: Does that prevent any increase in case of war?
Mr. BARTON: Yes.
END QUOTE 16-3-2005 correspondence to Malcolm Turnbull
30
Yet we find that prior to the last federal election John Howard was suddenly giving away monies
as some handout to women giving birth to a child even so the appropriation bills did not provide
for that financial year to do so and the taxation laws had also been set in concrete, so to say.
What we find is that the Federal government is paying out moneys unconstitutionally but again
the High Court of Australia does not appear to be concerned about this, at least not that I could 35
detect. As was made clear taxation laws cannot be changed, as they are locked in for the financial
year. Now as I have set out at the end of this document that we need an OFFICE OF THE
GUARDIAN, as obviously the High Court of Australia, in my view, is unable and/or unwilling
to deal with these matters.

Mr. DEAKIN:
. Then we come to the last clause in the resolution, which deals with the appointment of the executive and
the governor-general, the advisers of the governor-general to be members of parliament, and their term 45
of office to depend upon their having the confidence of the popular house.

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Only members of the House of Representatives can be appointed Minister of State, yet we find
Senators being appointed! And on and on it goes where little to nothing is being done by the
High Court of Australia to ensure that the Constitution (the will of the people) is adhered to.
And, numerous other issues can be raised, as have been in my various books, but to do so would
make this book to large for printing purposes. 5

Mr. DEAKIN:
That reminds me of a point I was nearly passing. I may be pardoned for leaving this part of my argument in a 10
confessedly imperfect state; because, to answer all interjections would take too long. I shall be delighted to
resume the argument in Committee, to obtain more knowledge, and to challenge the advocates of the policy
to show that any expenditure can conflict with state rights properly so-called. Let them in the first
instance define state rights, and then let us see how they will be impaired. I will be second to no
delegate in my anxiety to preserve what I understand to be state rights. So anxious am I to preserve 15
them, that I would never dream of intrusting them to a senate. Let us know what state rights are, and
let us be careful to secure them under our constitution, so that they may never be liable to be swept
away. We should fail in our duty if we did not embody in our draft such a distinct limitation of federal
power as would put the preservation of state rights beyond the possibility of doubt.
20
Mr. MCMILLAN: It seems to me that we must decide whether we will give this power to the Federal
not to interfere with the industrial and local life of the States. This is a proposition which goes a step too 25
Mr. KINGSTON: It is a power which the Federal Parliament may exercise.
Mr. KINGSTON: Only where it is inconsistent. 30
Mr. HIGGINS: It will only apply where the dispute extends outside the limits of one colony. 35
difficult thing for the Federal Government to interfere, even where the ramifications of the disputes
of this kind being effected; but I do not think that there should be any power included in this Bill which 40
regard to trade disputes.
are the words used, but how can that happen? 45

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Sir JOHN DOWNER: It does not extend beyond the limits of a State. The dispute is complete in itself
and each State will have power to deal with it. Such a provision I think will be a fertile source of
dispute. As far as the words are concerned, they appear to be simply meaningless, and I cannot 5
conceive any dispute which in itself can extend beyond the limits of the State.
Mr. CARRUTHERS: How about a dispute with the masters in one State and the men in another, as in the
shipping trade?
Sir JOHN DOWNER: That is not a dispute extending beyond the State. It may be a very difficult thing to
work out, but if it is to be done at all-and I can see great difficulty in doing anything with it, because it will be 10
extending the limits of the Commonwealth legislation to a most dangerous degree, which I think all the
colonies will not be prepared to accede to-it will be a departure from the proposition that there must be a
formula in which you can give the jurisdiction. These words, I submit, will not do it, because the dispute
will be a dispute in the State alone, and will not extend beyond it.
Mr. HOWE: I rise, as one of the laymen, in fear and trembling to give my opinion against those of the 15
legal luminaries here. A maritime dispute may affect the life of the nation. We have before seen the whole
commerce paralysed by these disputes, and if we give the telegraphic departments to the federal authority
why not give them authority to settle a national dispute which is endangering the commercial enterprise and
industrial life of the whole community. I am with Mr. McMillan on that point, and if these words will not
accomplish their object I want Sir John Downer to find words that will. 20
Mr. DEAKIN: I am entirely with my hon. and learned friend Mr. Higgins in the amendment he has moved
so far as he has indicated his purpose. I had the pleasure in 1891 of supporting the Premier of South Australia
when he made a similar proposition. It is a cause in which he has taken a continuous and active interest ever
since. Some of the difficulties which confront Sir John Downer confront me, although I see the problem from
another point of view. This sub-section would give concurrent federal power in dealing with industrial 25
disputes when they extend beyond the borders of a single State. The granting of such a power is desirable,
properly belonging to a Federal Government, because the disputes may be extended over large areas, and if
they are to be dealt with as a whole they must be dealt with by the Federal Parliament. Concurrent legislative
power here differs from the concurrent power usually given in other respects in this Bill. A dispute might
arise in South Australia, where there is a law now on its Statute-book dealing with industrial disputes. 30
So long as that dispute remained in South Australia it would be dealt with under that law. The federal
authority will also have a law perhaps different in its provisions, in many respects, from from the law
in South Australia. Directly the dispute in Adelaide overflowed to Western Australia or the Wimmera
the power of the State law would cease and the power of the Federal law, which is a different law,
would begin. 35
An HON. MEMBER: So it ought to.
Mr. DEAKIN: Yes; but it will be difficult to determine the moment of overflow even if you can determine
the point of overflow. We can scarcely say it there is to be a law in each State that the federal law must not
differ from some, if not from all, of these. Consequently it will be a curious problem in relation to penalties
and observances for those concerned to know the moment when they have passed from under the dominion of 40
the State law to the dominion of the federal law. That is the great difficulty to settle. Although I am prepared
to support the motion of the hon. member, I see grave difficuties in this proposal which [start page 785] is to
retain the State law and federal law upon the same question as both may have to be applied in times of
emergency and urgency. If you had merely left power to the State to legislate on industrial questions until the
Commonwealth Legislature intervened, then the situation would be comparatively simple. But I know that 45
neither of my hon. and learned friends desires that. They both desire to retain for their Several States for
all time the privilege of controlling industrial disputes within their own borders. But then they are
confronted with the difficulties to which I have referred, and upon which I would desire the Drafting
Committee to throw some light so as to enable a determination to be come to. As to the time difficulty, I
suppose it could be determined by proclamation of the Federal Parliament that a particular industrial dispute 50
had ceased to be a State dispute, and had become federal. But the hon. member wants to obtain more than
that. He wants, if possible, to graft a federal law upon the State law in such a way that the federal law
should only be applied where the State law cannot be applied. If South Australia and Victoria had each

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a law enabling them to deal with a dispute, it might be advisable that each State should deal with it. It
might be better that the dispute on the Victorian side should be dealt with according to the Victorian
law, and that it should be dealt with on the South Australian side according to the South Australian
law. But where the States altogether find themselves unable to cope with an intercolonial struggle, it
seems to be highly desirable that there should be provision for federal action. I hope the hon. gentlemen 5
will indicate to the Drafting Committee how they are going to distinguish between those two separate
spheres of action.
And
Mr. WISE: It would not be fair to criticise the language of this amendment too closely, but I entirely agree
with the observations that have been made by Sir John Downer and Mr. Deakin, that the amendment as now 10
drawn is very unsatisfactory. The language is either too large or too limited. In one sense it is hard to say
that any industrial dispute is a dispute outside the limits of the colony. I agree with Sir John Downer
that it is impossible to say when any dispute extends outside the limits of a colony, because a dispute is
always in one colony although it may be going on in every colony. In [start page 786] another sense every
dispute extends outside the limits of a colony. 15
An HON. MEMBER: Indirectly.
Mr. WISE: Sometimes, and sometimes directly. I rose rather to call attention to another aspect of the
question. If the effect of the amendment is really to provide for the possible establishment of a Federal Court
of Conciliation, I am at one with that object; but the essential part of the language used in the amendment-I
am not criticising casual expressions-indicates a much wider object, which would turn this power into a 20
weapon of very great danger. It would, I think, deprive those concerned in these industrial disputes, whether
as masters or employes, of one of their greatest safeguards. There is no matter which the industrial population
of Australia would more desire to confine to the local Parliaments, where they can make their influence upon
members felt, than matters affecting industrial disputes. To give the Federal Parliament power to make
laws affecting industrial disputes gives them authority to regulate by penalties every detail of the 25
industrial life of every trade in the colonies.
Mr. MCMILLAN: Hear, hear.
Mr. WISE: Surely that cannot be desired or intended. There is no matter in which varied local
development it; more necessary or desirable to a State than the development of its industrial
conditions, and the industrial conditions in every part of this continent in years to come may, and 30
probably will, very largely develop.
Mr. HIGGINS: Will you not trust the Federal Parliament with the same powers as the States?
Mr. WISE: Will the working classes of this country be prepared to surrender the right of local self-
government over industrial disputes?
Mr. SYMON: Hear, hear. 35
Mr. HIGGINS: That is not my question. Will not the Federal Parliament be equally to be trusted as the
States
Mr. WISE: I do not think the Federal Parliament or any centralised authority will be as competent as
a local authority to deal with the necessary local conditions of trade.
Sir JOHN DOWNER: Hear, hear. 40
And
Mr. WISE: If a clause were put in, the Federal Parliament would have power to fix a uniform rate of
wages all through Australia in any particular trade.

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Mr. HIGGINS: If that is so, and if the hon. member has great confidence in the popular character of this
Parliament
Mr. WISE: I prefer local authority.
At the very least and in those circumstances entitled to declare the 14 November 2006 to be
suspended pending the parties to return to the Court as to show cause why the 14 November 5
2006 judgment should be reinstated.
HIGH COURT OF AUSTRALIA
RYAN D'ORTA-EKENAIKE APPLICANT 10
AND VICTORIA LEGAL AID & ANOR RESPONDENTS
GLEESON CJ, GUMMOW, HAYNE AND HEYDON JJ;
Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with 15
federal jurisdiction" is the judicial power of the Commonwealth, that is, the judicial power of the national
government (as it is and must be at the federal level[29] but, at least generally, is not at the State level[30]) it
Where the High Court of Australia sees itself as part of the government, rather then a 20
independent body created under the Constitution then in itself this to me indicates the implied
bias. As where it consider itself to be a department of government then I view it has lost the
plot! Its function by this prevents it to be an independent arbitrator to adjudicate as a
GUARDIAN OF THE CONSTITUTION between the parties before the Court. It might have
quoted Quick & Garran but this is an ill-conceived conduct as if anything it underlines that the 25
High Court of Australia rather then to be a constitutional Court now seek to rely upon what
Quick & Garran might have assigned to them that somehow the High Court of Australia is under
the control of the Government by being the third great department of government rather then
being an independent judicial body within the Commonwealth of Australia.
Mr. BARTON (New South Wales).-I beg to move-
That this Convention cordially invites the Prime Minister of each colony here represented to provide for the
supply of copies of the Draft of the Commonwealth of Australia Constitution Bill, as now finally adopted by
this Convention, to the electors of his colony. 35
This motion will, I hope, give the members of the Convention an opportunity to state from their places
in this chamber to the electors who sent them here their opinion of the Draft Bill and its provisions. I
think that on this, the last day of our meeting, it is only fit that some opportunity should be given to
honorable members so to express their opinions that the statement of them in an authoritative form, as
printed in the official report of the debates, may reach those whose verdict upon the Bill is so soon to be 40
sought.

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It is very clear that the official reports of the Debates was intended all along to be used by those
who had to give their verdict upon the Bill. As such, the Hansard debates records very much was
to be used by the electors to give them an understanding what the Commonwealth Constitution
Bill was standing for.
Those who voted for the Bill clearly relied upon their political and religious freedoms as was set 5
out in the official records, and as such the Hansard official records of the Debates must be
considered as part of the Constitution. Hence the political freedom how to live is clearly
provided for by the Framers without undue government interference. Therefore, the
Commonwealth legal requirement to having to live in a certain manner as the Federal
Government may desire and in what manner (pattern) is unconstitutional, as like the piggy tail 10
case in the USA was!

15
Mr. GORDON:
These remarks are in themselves trite, but they are necessary to the short argument which I shall make, and
the point of which is, that in the Constitution we are about to formulate, [start page 317] we should make the
smallest draft which can be made consistently with cohesion, upon the allegiance of the people of these States
to the Governments under which they at present live. They are the governments to which they are 20
accustomed; they are the governments they have themselves moulded into effective legislative machines
under which a greater share of political liberty is experienced than in any countries the world ever saw

Mr. DEAKIN.-
liberty and the means to achieve all to which men in these days can reasonably aspire.

Yes, I experienced this, as set out below in more details, where the High Court of Australia were 30
fraternizing with the first Defendant in proceedings before the court, and subsequently
railroaded, as I view it, the case.
A liberty that now is denied in unconstitutional manner by the very High Court of Australia who
was to be the GUARDIAN OF THE CONSTITUTION.
The liberty that people now are forced to accept federal government dictated contract conditions 35
regardless this was specifically prohibited by the Framers of the Constitution to be allowed.
What kind of liberty is this one may ask.

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 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

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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 page 165]
part of her Majesty's dominions.
5
Sir JOHN DOWNER: The system to which I have just alluded has been in force 100 years, and has
worked well, and in beginning the erection of this new edifice we ought to be careful we do not make a
foundation mistake, for while we are pretending to make these judges the protectors of the citizens in the 10
Commonwealth, and even superior from certain points of view to Parliament itself, at the same time we ought
not to give Parliament, against whose unauthorised acts we intend the High Court to protect us, authority to
remove the judges without the greatest cause and the gravest trial. I think this is a matter well worthy of the
serious consideration of hon. members. We should make our Supreme Court so strong and powerful that no
Government will be able to set the Constitution at defiance owing to the presence of a majority in either 15
House, whereby an authority would be obtained that was never intended by the founders of the
Constitution.

And
Sir EDWARD BRADDON: I think the feeling in regard to this clause has been that it should be made 20
as difficult as possible to amend the Constitution. The idea underlying the clause is to provide that, while
an amendment of the Constitution is not made absolutely impossible, the Constitution shall not be so easily
capable of amendment that in any fluctuation of public opinion, any change of feeling on the part of
the people in some crisis of a temporary character, it might be changed.
Mr. DEAKIN: A majority of the whole people, and a majority of the States. 25
Sir EDWARD BRADDON: Yes; an absolute majority of the members representing the States in the
Senate and House of Representatives. I do not think this is too much to ask in such an important matter as an
amendment of the Constitution, and, while I would not say the Constitution should be such as could only be
amended by force of arms, I hope we shall provide all necessary safeguards against its being lightly
amended. 30
Mr. ISAACS: I hope these words will be eliminated. I should like to point out the meaning of the clause.
There is power given for the intervention of the people on the question of the amendment of their
Constitution, but that power is merely by way of veto. Unless the proposed amendment of the Constitution
first succeeds in passing an absolute majority of both Houses of the Legislature the proposition never reaches
the people for their determination at all. 35
Mr. MCMILLAN: You mean there is no initiative like there is in Switzerland.
Mr. ISAACS: There is no initiative, but I mean something more. It is possible for an absolute majority of
either House to prevent the people from expressing their views on the amendment of the Constitution. I think
that is wrong. If we are to provide for a mere majority of the Legislature to alter the Constitution, then
I could understand the complaints of some of my hon. friends that that was too easy a mode, but the 40
decision of the Legislature in this case is not intended to be final, and the passing of the amendment of
the Legislature is intended to be the means of ascertaining whether this proposition is of so great an
importance, of such great interest, and of such necessity as to require the consultation of the people. I
can quite understand that circumstances have not failed to occur in some colonial Legislatures where by some
accident a proposition has passed the Houses, but has failed to get an absolute majority. I can quite 45
understand why it is necessary in cases where the voice of Parliament is sufficient in itself to establish a new
law amending the Constitution to have an absolute majority, and with much more reason than in the present
case. Although we are dealing with the question of amending the Constitution, we have to recollect that
it never can get passed into law without the sanction of a majority of the States and people. Now, surely
that is safeguard enough. 50
Mr. HOWE: An ordinary majority.

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Mr. ISAACS: This is only preliminary to getting to the people, and then you have in the States the
amplest power of rejecting a proposal, and in the population you have similar power of rejecting a
proposal if it is not in accord with the views of the people.
And
Mr FRASER: If you have not an absolute majority of both Houses you allow a minority to past; the 5
amendment. The most liberal man on earth would not ask for such a proposition as that. The reference to the
United States is a different thing altogether, and has no analogy to our conditions. The 1891 Bill contained
the same provision, and why should you make an alteration merely for the sake of creating strife and
confusion? The Constitution should not be altered to every gust of wind that blows hither and thither.
Mr. HOWE: Who blows? The lawyers? 10
Mr. FRASER: It is not desirable that an alteration of the Constitution should be effected except at
the wish of the majority of the people.
And
Mr. LEWIS: I should like to call attention of the Committee to the way in which this clause is drawn. The
proposed alterations must be approved by the electors of a majority of the States. The people of the States 15
whose electors approve are also a majority of the Commonwealth. The proposed alteration should, in my
opinion, be approved by a majority of the States, and also by a majority of the electors who record their
votes upon the referendum that may be taken upon the proposed law. That is a very different thing to
what is presented here. I need not delay the Committee, because the difference will be seen at once. I have an
amendment to the effect that the proposed alteration should be approved by the electors of a majority of the 20
States and by a majority of the electors who vote.
Mr. BARTON: That would not secure a majority of the Commonwealth.
Mr. LEWIS: Under this system one large colony might join with two or three smaller ones, and their votes
would override the votes of another large colony which had joined with one of the small colonies,
notwithstanding that a large majority of the electors in the Commonwealth decided against the proposed 25
alteration.
And
Mr. DEAKIN: I was struck by the point raised by Mr. Lewis. It Seems a very fair one to raise, and a very
fair one to insist upon if there were a uniform franchise through the Commonwealth. One obstacle is that in
South Australia at present there is a different franchise from that obtaining in any other portion of the 30
Australian continent, and the double voting power in that colony and in any which follow its example would
be certainly unfair to the remaining States. If the franchise were uniform I do not think that the more
populous States should have their abstinence from voting allowed for, as it is in this plan. It might even
enable them to negative a proposal which secured, not only a majority of the States, but actually a
majority of those persons who took the [start page 1026] trouble to go to the poll. This plan would not 35
enable a proposal to be carried unless the States in the majority were also the most populous States of the
group. It is right to require a majority of the States as States. But why should you require that the people of
the States whose electors approve of the alteration should also contain a majority of the people of the
Commonwealth? One can conceive that if you have one State much outstripping the others in population,
although You might have practically all the other States, except perhaps one small one, in favor of the 40
proposed reform, and although a majority of those who went to the poll were in favor of the proposed reform,
the population in the oustanding State would be so numerous that the majority of the States would not include
a majority of the Commonwealth. The amendment would be defeated solely by the abstinence from
voting of that very large State.
And 45

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of those who vote -a quarter of the people may vote. I suggest that we ought to reconsider that part of the
agreement.
And
Mr. KINGSTON: 5
If you get two things, namely, a majority of the State electors who vote on the subject and a majority also
of the electors of the whole Commonwealth in favor of the proposed alteration, I think that is all you ought to
require.
And
Mr. BARTON: I should be glad to do anything that is reasonable, but Mr. Lewis's amendment as it stands 10
is one which we cannot accept. That is the one which proposes first that there should be a majority of the
States, and then a majority of the electors voting If we have five States joined together, of which one has
female suffrage, then the electors count for double those of the other States. Then, in the case of a State which
has the one man one vote system, that counts for two, and there is the difficulty. As no one can give me a way
out of the difficulty, I think we had better adhere to the proposal in the Bill. 15
And
Mr. KINGSTON: I think that to strike out the words would be both sufficient and effective. I would like
to know from Mr. Barton if he means that it should not become law without the consent of the electors
of the State. There is no provision for taking a poll.
Mr. BARTON: Yes; there is a provision for a poll. It is that it shall not be effective unless the majority of 20
the electors are in favor. It must be passed by the electors of a majority of the States, who are a majority of
the people of the Commonwealth. There is only one way of carrying a proposal, and that is by a majority.
Mr. KINGSTON: I suppose that is a majority of the people who vote, and would like the hon. member
to say so.
Again; 25
It might even enable them to negative a proposal which secured, not only a majority of the States, but
actually a majority of those persons who took the [start page 1026] trouble to go to the poll.

Again;
and also by a majority of the electors who record their votes upon the referendum that may be taken 30
upon the proposed law.
Again;
of those who vote -a quarter of the people may vote. I suggest that we ought to reconsider that part of the
agreement. 35
It refers to who record their votes and not who are registered/enrolled, as political liberty
ensures the right to abstain from voting.
Do not Members of Parliament themselves use this right to abstain from voting?
Mr. DEAKIN: The sub-section reads:
But an alteration by which the proportionate representation of any State in either House of the Parliament or 40
the minimum number of representatives of a State in the House of Representatives, is diminished, shall not
become law without the consent of the electors of that State.

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This underlines that while Section 128 provides for the manner in which a Commonwealth of
Australia referendum is to be held it does however not deal with how State referendum must be
held regarding the referral of powers , the diminishing of representatives in the Federal
parliament, etc. nevertheless, as this documents sets out also the Commonwealth Powers
(I ndustrial Relations) Act 1996 is not constitutionally valid as it never had the approval by a 5
State referendum and neither did the Victorian parliament to make it a permanent reference of
legislative powers within the ambit of Subsection 51(xxxvii) of the Constitution. Likewise the
Victorian Parliament had neither any State referendum approval to support the purported
Australia Act 1986. The High Court of Australia, cannot, as it did in Sue v Hill make a political
conclusion/decision but is bound to determine matters on legal facts before the Court. It has no 10
constitutional position to assume some transformation of the Commonwealth of Australia
without even the approval of the electors by way of a Section 128 referendum, and the fact that
the judges themselves acknowledged that there was no decisive issue as a legislative action that
could even determine when this purported transformation occurred then the Australia Act 1986
is and remains to be ULTRA VIRES. This document provides various quotations in support of 15
this also.

Mr. DEAKIN: I trust the clause will not be passed without some little further consideration. The 20
proposition of the hon. member is one which I should have made myself, or, rather, which I was considering,
but for the obvious objection to me that it fulfils too much the idea of the hon. member, Mr. Donaldson, of
making reform almost impossible. I take it that one of the first principles of the Constitution is that we
present it to the several colonies, not as a complete constitution, but as one which they can make
complete; not as a constitution necessarily adapted to their needs and desires, but one which they can 25
themselves adapt to those needs and desires. The amendment of the hon. member, Mr. Playford, is fair, and
the only possible objection that can be raised against it is that it makes the carrying of amendments in the
constitution extremely difficult. But the question is whether that is not desirable in order that the amendments
that are carried may be equitable. The proposal that was carried in the Constitutional Committee, and
commended to the Convention, was, that first a majority of the states, and then of the whole of the people, be 30
required before any amendment be carried. The matter ought not to be lightly passed over, nor should there
be an acceptance or a rejection of the clause without debate.
Mr. GILLIES: There is some misapprehension about this matter. It is said that there shall be a majority of
the states, and then of the people; but in the house of representatives there is a majority of the people.
Mr. MUNRO: No. Representatives very often vote against their promises. We want to refer the 35
question to the people!
And
Mr. OCONNOR.-If a state referred question of state finance it might be dealt with.
Mr. SYMON.-Does the honorable member say that that would be a desirable thing to do?
Mr. BARTON.-Is it not for the people of the state to determine whether it is desirable? 40
And
know we promised to do it; we know we have broken our promises; we acknowledge our transgressions, and
will refer the matter at once to the Federal Parliament"? Who would blame her? Certainly not South 45
Australia. Even in connexion with the question of rivers some point might arise that might concern two or

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three colonies, and that could not concern all the colonies. That, again, might be a proper matter for reference,
but it could not be a common matter of legislation in respect of every state. I will now take the points Mr.
Deakin makes. He doubts whether this power of legislation will carry with it a power of raising the necessary
Again; 5
That, again, might be a proper matter for reference, but it could not be a common matter of legislation in

And
Mr. ISAACS (Victoria).- 10
Parliament the passing of any law that is to affect itself alone. But if it agrees with another state that some
law; not to be of universal application throughout the Commonwealth, but to affect it and that other state
alone, should be passed, power should be given in some such clause as this to ask the Federal Parliament to
enact that what both states desire shall be of common application to them.
15
Clearly, the Australia Act 1986 being a common matter in respect of every state fell outside the
provisions of Subsection 51(xxxvii)!

Al-Kateb v Godwin [2004] HCA 37, 6-8-2004
69. Failure to see the difference between taking into account political, social and economic developments since 20
1900 and taking into account the rules of international law is the error in the approach of those who assert
that the Constitution must be read in conformity with or in so far as it can be read conformably with the
rules of international law. Rules are specific. If they are taken into account as rules, they amend the
Constitution. That conclusion cannot be avoided by asserting that they are simply "context" or elucidating
factors. Rules are too specific to do no more than provide insights into the meanings of the constitutional 25
provisions. Either the rule is already inherent in the meaning of the provision or taking it into account alters
the meaning of the provision. No doubt from time to time the making or existence of (say) a Convention or
its consequences may constitute a general political, social or economic development that helps to elucidate
the meaning of a constitutional head of power. But that is different from using the rules in that Convention
to control the meaning of a constitutional head of power. Suppose the imposition of tariffs is banned under 30
a World Trade Agreement. If that ban were taken into account - whether as context or otherwise - in
interpreting the trade and commerce power HYPERLINK "http://www.austlii.edu.au/cgi-
bin/disp.pl/au/cases/cth/high%5fct/2004/" \l "fn69" [70] , it would add a new rule to the Constitution. It
would require reading the power to make laws with respect to trade and commerce as subject to the rule
that it did not extend to laws that imposed tariffs. Such an approach, in the words of Dixon J, cannot be 35
"countenanced" HYPERLINK "http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high%5fct/2004/" \l
"fn70" [71] .
Again;
If this Court had to take a rule of international law into account in interpreting those powers, the rule would
either confirm what was already inherent in the powers or add to or reduce them. If the international rule is 40
already inherent in the power it is irrelevant. If it is not, its invocation alters the constitutional meaning of
"aliens" or "judicial power of the Commonwealth" or both.

Therefore, the Constitution cannot be deemed to have been amended over time merely because
public perceptions may have changed, as the Constitution must be interpreted as to what the 45
intentions were of the Framers of the Constitution at their time.

50
Consequently, if it were proposed to add a legislative power of the kind suggested by Mr. Holder, I take it
that as Chapter VIII. provides first for the passage of the proposed law by an absolute majority, and
then for a referendum, the law would have no effect unless the majorities of the several states agreed
to it. 55
And

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the consideration of the Drafting Committee, and probably the difficulty to which he has drawn attention
from another point of view, and it seems to me that the provision affords an easy method of amending
the Federal Constitution, without referring such amendments to the people of the various states for 5
and the Federal Parliament has dealt with such matters, that becomes a federal law, and cannot afterwards be
once made [start page 218] is a reference for all time, and cannot be revoked, so that to that extent it
becomes an amendment of the states' Constitution, incorporated in and engrafted on the Federal 10
and the states can, after making such reference, repeal such reference, what is the result? You have a
is that it affords a free and easy method of amending the Federal Constitution without such amendments being 15
Constitution.

This, as the reference of legislative powers are not enforceable or acceptable by the 20
Commonwealth Parliament unless first having been accepted by a referendum under Section
128! As shown below!

See also for further detail; Chapter 005 The Westminster Act is ULTRA VIRES
25
Mr. BARTON: That is quite true; I had forgotten that. I have always thought that the practice in New
South Wales has been a perplexing and hampering one. I think it is very much better to make the law read
as it is, that the passage shall not occur until there has been a message. There are many circumstances 30
under which a message might not be obtained by a Government, although they might find it necessary in an
emergency to propose a vote or resolution. So long as the Queen's assent is given to that proposed
procedure by message before the final act is taken of carrying it into law, the prerogative of the Crown
is sufficiently guarded. And if we try to apply restrictions of this kind, so as to hamper the very origination
of matters, we are extending the application of the prerogative of the Crown, instead of really exercising the 35
popular right, and then applying that prerogative to the effectuation of the popular right.
And
Mr. REID: The clause says:
Which has not been first recommended.
You will have to leave out one word there. 40
Mr. BARTON: I have that word clearly in my mind, but the word "first' relates to the word "pass."
You cannot pass a thing which has not been first recommended; that is first recommended before you
pass it.
Mr. SYMON: Precisely.
Mr. BARTON: With regard to a vote or resolution, it would be necessary to have a message before 45
you pass such vote or resolution; with regard to a Bill, you must have a message before you pass the
Bill. This clause gives greater liberty to Parliament than the restrictive application proposed, and I am

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therefore entirely in favor of retaining the words of the clause. Mr. Isaacs has raised a question with
reference to "proposed law."
Mr. ISAACS: I do not like the words "proposed laws," because it has a technical meaning in other parts of
the bill. The word "Bill" ought to be there.
Mr. BARTON: I do not propose to alter without very good reason the phraseology of this Constitution Bill 5
to which we are accustomed. A Bill is a proposed law until it becomes an Act.
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 10
Parliament will be a sentry, and, every constituent of a state Parliament will be a sentry.

Mr. GLYNN (South Australia).- 15
Then, following out the idea that this Constitution takes its origin from the people, when we are seeking
the element's of its renovation and repair we throw it back upon its source, and appeal to the popular
voice for a justification of any improvement or alteration which time may necessitate.
And
Mr. BARTON.- 20
by the High Court is to be final.

Again; 25
the interpretation of the Constitution by the High Court is to be final.

This does not include for the High Court of Australia to use a backdoor manner to alter the
application of the Constitution, to twist or infringe its provisions (Mr Barton, Hansard 17-3-
1898). Just that I view we lack competent judges serving at the High Court of Australia as their 30
judgment appear to me far to often to lack a display of competence about certain constitutional
issues to be shown.

Mr. BARTON.-
by the Parliament of the United Kingdom. That will be true in one sense, but not true in effect, because 40
that the highest court in Australia should be left as the guardian of the expressions of the people, and the sole
45
Again;

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I think it is right and fit that the highest court in Australia should be left as the guardian of the expressions of
the people, and the sole body to determine finally what the people meant when they used those
expressions.

And again; 5
what the people meant when they used those expressions.

As such not what judges consider to be applicable upon contemporary views, or what
Delegates to the Constitution Convention later may have fabricated when they were appointed to
judicial position as to perhaps achieve what they were defeated in during the Debates. 10
Isaacs, as I understood it would have desired to have the entire industrial relations legislation
handed over the Commonwealth of Australia, but failed in this and therefore any statement he
made since Federation must be considered with this in mind. Likewise so with other Delegates to
the Constitution convention who later were in positions to perhaps seek to twist the true
intentions of the Framers of the Constitution to what they themselves all along desired. Indeed, I 15
view to some extend Dr Quick (later Sir John Quick) seemed to be a clear example in this.

The Right Hon. G.H. REID: And we shall have to fight it over again in Melbourne. 20
The Hon. I.A. ISAACS (Victoria)[4.27]: Of course we have to bow to the pressure of circumstances. May I
say one word to my hon. friends on the Drafting Committee in relation to clause 52? In the United States
Constitution power is given to the commonwealth to legislate in very wide terms. The question will be
constantly arising whether the commonwealth parliament has power to legislate on any particular
matter. There is no doubt whatever that they are to he restricted by the powers expressed or implied in 25
the constitution bill. We have not got exactly any precedent quite analogous. We have gone very near to the
United States Constitution, but I should like to point out how the same words used in a different relation may
lead to very different results. In our bill, clause 52 provides that the parliament may 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. It then winds up with the sub-clause: 30
Any matters necessary for, or incidental to, the carrying, into execution of the foregoing powers-
They are specifically mentioned:
or of any other powers vested by this constitution in the parliament or the executive government of the
commonwealth or in any department or officer thereof.
It seems to me that if you want to legislate in regard to the judiciary, you might be met with some difficulty. 35
There is a power given, but it is very limited; it is to do specific things. My hon. and learned friend may
be able to find that power.
And
The Hon. E. BARTON: All these in clause 52 are in the parliament!
The Hon. I.A. ISAACS: But there am many provisions of the bill in relation to the parliament which 40
are not powers vested in the parliament.
The Hon. E. BARTON: Does the hon. member mean to say that they are mere permissions?
The Hon. I.A. ISAACS: Permissions given, and also provisions made in respect of the parliament, or
one single house of the parliament. I think it would be well if the wording were made so as to prevent any

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question from arising in the future as to the power of the commonwealth parliament to legislate in respect of
every one of the subjects which are confided to the commonwealth as a whole.
Mr. HIGGINS.- 5

Sir JOHN DOWNER.-I mean Australian, and when I say colonial I do not [start page 1963] refer to one 10
colony. When I voted as I did it was in the belief that the trade and commerce clause would probably be
sufficient to give to everybody all that was required, and to give my right honorable friend (Mr. Reid) all that
he requires. It appeared to me that under the trade and commerce provision, before it would be
competent for the Federal High Court to interfere with any use by New South Wales of any of the
waters of the rivers running through her territory, it would have to be shown that it was injurious to 15
trade and commerce.

Clearly, despite Section 100 of the Constitution the High Court of Australia would be required to
find some connection to be able to invoke jurisdiction.
As will be shown below, if the provisions of subsection 51(xx) foreign-corporations, and 20
trading or financial corporations formed within the limits of the Commonwealth was to have the
widest possible meaning it purports to apply, then why not just rely upon subsection 51(xii)
currency, coinage, and legal tender which is used throughout any ones life and using this in the
widest possible context would do away with any limitations elsewhere in the Constitution.
Why at all did the Framers of the Constitution have to bother with the terminology of each and 25
every word used in subsections if it could have simply drafted one clause currency, coinage, and
legal tender to comprehend the unlimited powers. The mere fact that the Framers of the
Constitution stated specific headings means that any subject of a subsection was to be recognised
in its own right and not be swallowed up by any other heading. Indeed, the powers of trade and
commerce were defined in the Debates not to be as wide as to be able to control every aspect in 30
life and neither that Subsection (xx) could swallow up this subsection. The Framers of the
Constitution specifically provided headings which related to certain subjects and where there was
a subject specifically listed in another subsection then clearly no transgression could be made
into the subject matter of another subsection where it would not be permissible within the
legislative powers of that subsection itself. Therefore, any legislative powers within subsection 35
(xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes
extending beyond the limits of any one State cannot be enlarged by artificially using another
heading not at all designed for that purpose. To me the word conciliation could mean
reunion which got nothing to do with a person seeking employment, as reunion would not be
the appropriate word in that context. Likewise the word arbitration could not be used in this 40
context as there is no arbitration required to settle some dispute where there is none. If a person
knocks on the door to inquire about employment then there is no dispute existing. Hence, the
powers of subsection 51(xxxv) cannot apply. The freedom of association and civil rights
cannot be dictated by any Government, even so in recent times the Federal Government has
become the terrorist upon the general community inciting hatred in its Muslim phobia to incite 45
Muslims to turn against certain Muslim leaders because they do not like the comments of certain
persons, regardless that in law this person is entitled to cast his views. Rather then to charge a
person for libel or vilification or whatever may be applicable we have now a Federal government
that usurps the judiciary by simply acknowledging it has no constitutional powers incite people

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to turn against each other. This is the kind of treacherous conduct now coming from the federal
government, which was also clearly shown with the CHILDREN OVERBOARD claims, etc.

A Court of law must resit to rule upon a political agenda but regretfully it appears to me that the
High Court of Australia is more ruling under the political mastery of the federal government then 5
to rule on facts of law. It has even gone as far as to fabricate some version of independence
in the Sue v Hill case without a shred of legal argument to prove conclusively its legal
justification for this. As such, the Court has by far exceeded any judicial powers by substitution
the facts its own political agenda/bias versions/views. This book address, albeit not all,
numerous issues including the question of credibility of the judges themselves. 10
While the court may rely upon Isaacs having been a Framers of the Constitution and his further
positions as a judge, Governor-General, etc, the true picture should be understood that Isaacs
knew from the Constitution Convention Debates that no Governor-General could be appointed
upon the recommendation of the Australian Government but that it was explicitly stated that it
must be a person who represented the Queen being recommended by the Home Office at 10 15
Downing Street, as to avoid some political lapdog being recommended by the Australian
Government. How dangerous this unconstitutional change is can be shown where John Howard
authorised unconstitutionally the deployment of troops into the sovereign nation Iraq despite the
governor-General having effectively refused to invoke prerogative powers to publish in the
Gazette a DECLARATION OF WAR and yet even the High Court of Australia itself rather then 20
to speak on behalf of the general community not to tolerate this kind of treachery being the
GUARDIAN OF THE CONSTITUTION deliberately refused to act and by this must be
perceived to have condoned this unconstitutional conduct. No more evidence can be clearer
about this then its conduct on 19 March 2003, the very day of the murderous armed invasion into
Iraq, where the High Court of Australia refused to consider the case I had lodged with the Court 25
supported by a massive eight hundred page Affidavit, as to seek within Section 75(v) of the
Constitution an order of prohibition/mandamus.
This book does not permit to set it all out, in particularly not the printed version, and neither is
there any need for to do so as it has been already extensively set out in the many books I have
already published in the INSPECTOR-RIKATI book series. 30
Also, having succeeded in my appeals on 19 July 2006 with all constitutional issues I raised
remaining UNCHALLENGED it cannot be taken away from me that I defeated, in an about 5-
year legal battle the Federal government lawyers, and as such earned the credibility to have been
right in the numerous constitutional issues I had raised (including a Section 78B NOTICE OF
CONSTITUTIONAL MATTERS), despite that the High Court of Australia having refused to 35
address the very issues when it was placed before it year earlier.

Australasian Convention) (Chhapter 33 of the CD)
Mr. HIGGINS.-Suppose the sentry is asleep, or is in the swim with the other power? 40
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.

Mr. GLYNN (South Australia).-
Then, following out the idea that this Constitution takes its origin from the people, when we are
seeking the element's of its renovation and repair we throw it back upon its source, and appeal to the
popular voice for a justification of any improvement or alteration which time may necessitate.
50
This does not include for the High Court of Australia to use a backdoor manner to alter the
application of the Constitution, to twist or infringe its provisions (Mr Barton, Hansard 17-3-
1898). Just that I view we lack competent judges serving at the High Court of Australia as their

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st
judgment appear to me far to often to lack a display of competence about certain constitutional
issues to be shown.

The Right Hon. G.H. REID: And we shall have to fight it over again in Melbourne.
The Hon. I.A. ISAACS (Victoria)[4.27]: Of course we have to bow to the pressure of circumstances. May I
say one word to my hon. friends on the Drafting Committee in relation to clause 52? In the United States
Constitution power is given to the commonwealth to legislate in very wide terms. The question will be
constantly arising whether the commonwealth parliament has power to legislate on any particular 10
matter. There is no doubt whatever that they are to he restricted by the powers expressed or implied in
the constitution bill. We have not got exactly any precedent quite analogous. We have gone very near to the
United States Constitution, but I should like to point out how the same words used in a different relation may
lead to very different results. In our bill, clause 52 provides that the parliament may have full power and
authority to make laws for the peace, order, and good government of the commonwealth, with respect 15
to all or any of the matters following. It then winds up with the sub-clause:
Any matters necessary for, or incidental to, the carrying, into execution of the foregoing powers-
They are specifically mentioned:
or of any other powers vested by this constitution in the parliament or the executive government of the
commonwealth or in any department or officer thereof. 20
It seems to me that if you want to legislate in regard to the judiciary, you might be met with some difficulty.
There is a power given, but it is very limited; it is to do specific things. My hon. and learned friend may
be able to find that power.
The Hon. E. BARTON: Look at clauses 76, 77, and 78!
The Hon. I.A. ISAACS: I am not sure they go far enough. I would also point out that in section 8, 25
subsection 18, of the first article of the American Constitution, the Congress has power
to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and
all other powers vested by this constitution in the Government of the United States, or in any department or
officer thereof.
Now, the word "government" there has a very large signification. It means the whole of the legislative, 30
judicial, and executive departments of the government, and any officer and any department thereof. A
departmental officer in the United States means an officer of the whole government, which is a much wider
signification than the other. A question has arisen in my mind in two or three places throughout this bill
whether the parliament has power to make laws in certain cases-not in two or three cases, but in very
numerous cases; [start page 1091] and a question may arrive as to whether the last sub-clause of clause 52 in 35
wide enough in that respect. There are many provisions in relation to the parliament which do not consist of
power is vested in the parliament.
The Hon. E. BARTON: All these in clause 52 are in the parliament!
The Hon. I.A. ISAACS: But there am many provisions of the bill in relation to the parliament which
are not powers vested in the parliament. 40
The Hon. E. BARTON: Does the hon. member mean to say that they are mere permissions?
The Hon. I.A. ISAACS: Permissions given, and also provisions made in respect of the parliament, or
one single house of the parliament. I think it would be well if the wording were made so as to prevent any

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question from arising in the future as to the power of the commonwealth parliament to legislate in respect of
every one of the subjects which are confided to the commonwealth as a whole.
Mr. CLARK: 5
What we want is a separate federal judiciary, allowing the state judiciaries to remain under their own
governments.

Consider the Forge case of 1996 that held that the State Supreme Court somehow was subject to
Chapter III of the Constitution. Clearly this is not what the Framers of the Constitution had 10
intended.

Mr. BARTON.-Yes; and here we have a totally different position, because the actual right which a 15
person has as a British subject-the right of personal liberty and protection under the laws-is secured by
1766] the laws regarding property and personal liberty is still left with the states. We do not propose to
interfere with them in this Constitution. We leave that amongst the reserved powers of the states, and, 20
therefore, having done nothing to make insecure the rights of property and the rights of liberty which at
present exist in the states, and having also said that the political rights exercisable in the states are to be
exercisable also in the Commonwealth in the election of representatives, we have done all that is necessary.
Again;
The administration of [start page 1766] the laws regarding property and personal liberty is still left 25
with the states.

Mr. DEAKIN: 30
When the question of a second chamber comes to be considered, they will assuredly not be satisfied to
possess less freedom. More than this. In framing a federal constitution, we should set out with the explicit
claim to possess and exercise all the rights and privileges of citizens of the British empire to the same
extent that they are possessed and exercised by our fellow-countrymen in Great Britain itself.
35
Mr. HOLDER (South Australia).-
We have deliberately decided previously that the Constitution should only be amended by direct
appeal to the electors, in which the vote shall be counted in two ways. I do not propose to alter that 40
provision in the slightest degree. We have provided that measures altering the Constitution shall only come
into force after they have been carried by absolute majorities of both Houses. I include the same provision in
this clause. Before a matter can be sent to the referendum, both Houses must by absolute majorities agree
thereto.
And 45
I admit freely that as the Constitution is a deed of partnership, it is absolutely necessary to have the
High Court to interpret it, and to see that the various co-partners keep in all that they do within the 50
four comers of the deed to which they have agreed.

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Mr. HIGGINS.-

I think an alteration with regard to the rest of the Constitution, what I may call the machinery part, 5
ought to be much easier than the forms for altering the Constitution with regard to the powers
conferred by the states on the Federal Commonwealth. If a number of the states come together and say-
"We are willing to surrender certain powers to the Central Government,
Mr. O'CONNOR:
We know it is easy to bring the pressure of the majority of public opinion on one House for the purpose of
obtaining a violation of the law. This is not intended to be a protection to the House or the Representatives of
the House, but to the States represented in the House; that no matters of tactics between the Houses, or no
playing off of public opinion by one House against another, shall ever take away the protection embedded in 15
the Constitution for the States. I have heard of the argument of the inconvenience of laws being upset on
account of some invalidity being discovered-some trifling invalidity, perhaps. I say you must submit to that
inconvenience if you wish to enter a Federal Constitution. The very principle of the Federal Constitution is
this: that the Constitution is above both Houses of Parliament. That is the difference between it and our
Houses of Parliament now. The Federal Parliament must be above both Houses of Parliament, and they 20
must conform to it, because it is in the charter under which union takes place, and the guarantee of
rights under which union takes place; and, unless you have some authority for them to interpret [start
page 592] that, what guarantee have you for preserving their rights at all. It is very necessary to insert
this provision in the Constitution, because if you do not do that then these questions are questions of
procedure between the two Houses in which undue pressure may be brought to bear at any time on one House 25
or other for the purpose of vetoing a law and doing injustice to the States represented in that House in the
different ways in which the States are represented. As to the inconvenience, there are thirty-two different
subjects of legislation here which may be dealt with by the federal authority, and in regard to any one of these
if an error is made which takes the law outside the authority which is given to the federal power it is invalid-
absolutely void-no matter what inconvenience may follow. 30
Mr. REID:
The Supreme Court of the United States is not a court created by Parliament, as the draft Bill proposed our
Federal Court should be. It is a court embedded in the Constitution itself, and it is essential to the just 35
exercise of federal powers that this Supreme Court shall be strong enough to do what is right-strong
enough to act as the guardian of all the rights and liberties of the States and people of Australia. I am
glad that Mr. Barton agrees with me in this respect.

Mr. BARTON.-
. I do not think that that applies at all, however, to any power of regulating the lives and proceedings of
citizens, because we do not give any such power to the Commonwealth
45
His Honour CALLINAN J pointed out;
QUOTE
636 Part 2 of the Act establishes an Australian Fair Pay Commission ("the AFPC"). The principal of its
functions is "wage-setting" as referred to in ss 21(a) and 22(1).
END QUOTE 50

QUOTE from Chapter 000
55

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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
5
If the Commonwealth and/or the State(s) were to have me as a consultant you might find
that a lot of rot could/would be avoided. On 21-7-2005 we had Treasurer Peter Costello
commenting (ABC, Lateline);
QUOTE
PETER COSTELLO: Well, this is not a question, I think, of taking state's rights. I think this is a question of 10
conferring new individual rights. The right to actually contract on an individual basis, the right to get a job,
the right to have higher wages.

And to actually portray this as some constitutional issue is completely wrong. Look, can I tell you from the
outset of Federation there was an industrial relations power conferred on the Commonwealth Parliament. You 15
know why? Because in the 1890s before Federation started it was understood that industrial disputation didn't
respect state borders, it can actually cross state borders and that's been going on for a very long period of time
and if you can have a better system which can deal with industrial relations disputes and wages and
employment and businesses, which don't stop at state borders, they actually trade across state borders you'd be
a mug not to go down the line that will give you a better system. 20
END QUOTE

Did anyone explain to Peter Costello that in 1890 there never were any State borders? States
were created out of the Colonies when they federated. As such Colonial borders existed in 1890!
25
Mr. MCMILLAN: It seems to me that we must decide whether we will give this power to the Federal
not to interfere with the industrial and local life of the States. This is a proposition which goes a step too 30
Mr. KINGSTON: It is a power which the Federal Parliament may exercise.
Mr. KINGSTON: Only where it is inconsistent. 35
Mr. HIGGINS: It will only apply where the dispute extends outside the limits of one colony. 40
difficult thing for the Federal Government to interfere, even where the ramifications of the disputes
of this kind being effected; but I do not think that there should be any power included in this Bill which 45

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regard to trade disputes.
are the words used, but how can that happen? 5
and each State will have power to deal with it. Such a provision I think will be a fertile source of 10
Again;
but I do not think that there should be any power included in this Bill which will so interfere with the
local industrial life of any State as practically to dictate to the State with regard to trade disputes. 15

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 20
courts can be arranged, I desire to justify in some 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.
And 25
be an absolute impossibility in the different states.
And
Mr. BARTON.-If the honorable member's exclamation
means more than I have explained, then the best thing 35
to do is to confide to the Commonwealth the right of
dealing with the lives, liberty, and property of all the
persons residing in the Commonwealth, independently
of any law of any state. That is not intended,
40

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And
Mr. BARTON.-Yes; and here we have a totally different
position, because the actual right which a person
has as a British subject-the right of personal liberty
and protection under the laws-is secured by being a 5
citizen of the states. It must be recollected that the
ordinary rights of liberty and protection by the
laws are not among the subjects confided to the
Commonwealth. The administration of [start page 1766] the laws
regarding property and personal liberty is still left with the states. We do not propose 10
to interfere with them in this Constitution. We leave that amongst the
reserved powers of the states, and, therefore,
having done nothing to make insecure the rights of
property and the rights of liberty which at present
exist in the states, 15

Again;
Mr. BARTON.-If the honorable member's exclamation
means more than I have explained, then the best thing
to do is to confide to the Commonwealth the right of 20
dealing with the lives, liberty, and property of all the
persons residing in the Commonwealth, independently
of any law of any state. That is not intended,

Mr. HIGGINS: There are some disputes which cannot be dealt with by one State alone.
Mr. BARTON: If they arise in a particular State they
must be determined by the laws of the place where 30
the contract was made.

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And
and each State will have power to deal with it. Such a provision I think will be a fertile source of 5
END QUOTE from Chapter 000
QUOTE 10
675 It can be seen from those objects that the whole purpose of the Amending Act is not just to affect,
but is to govern completely, all aspects of the relationship between employers and employees, without
any attempt to connect, even by the narrowest of threads, those objects with some implementation of
the corporations power. The opening words are that the principal object is "to provide a framework for
cooperative workplace relations" and thereafter there is not to be found any reference of any kind in the 15
section to corporations or the corporations power. Stated objects of legislation are not to be put aside
lightly.
END 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:

Sir JOHN FORREST (Western Australia).-
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;
30
Mr. GLYNN.-
We ought not to create the evil of making the Judges not merely interpreters, but the extenders of the
Constitution, and we ought to give the Constitution such a degree of elasticity as will render it capable of 35
being moulded to the changed conditions as time goes on, and prevent the dangerous alternative of
judicial expansion.

But, lets us first deal with an issue not a single judge somehow bothered to deal with in their
judgments. The issue being one of CIVIL RIGHTS 40
QUOTE
809 It is sometimes forgotten that at federation the colonies maintained their own defence forces.
Section 51(vi) refers, in terms, to the naval and military defence of the Commonwealth "and of the
several States", making clear that defence is to be exclusively a Commonwealth activity. There is 45
something else however that needs to be noted about this provision. It is that, literally, that is textually
exclusively, it appears to contemplate the use of the military forces of the Commonwealth to execute
and maintain the laws of the Commonwealth
[1021]
, at any time and in any circumstances. Elsewhere I
refer
[1022]
to statements by judges of this Court to the effect that constitutional provisions should be
construed with "all the generality which the words admit". The use of military forces, the imposition in 50
effect of martial law in a democracy, except perhaps in times of external threat or civil insurrection, is
anathema to democracy itself, and yet, if s 51(vi) is to be construed too generally and textually or
literally, and without reference to other provisions of the Constitution, including perhaps that all of the
powers are to be exercised to make laws for the good (democratic) government of the Commonwealth,
that result might conceivably follow. 55
END QUOTE
QUOTE

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810 Reliance was placed upon some remarks of Latham CJ in Pidoto v Victoria
[1023]
for a proposition
that because the defence power was not subject to any restriction imposed by s 51(xxxv), nor should the
corporations power be. Pidoto was decided in 1943 when Australia was still engaged in a war that
menaced the whole nation.
END QUOTE 5

My books already extensively refer to that the Framers of the Constitution did not accept
the Commonwealth to use its forces against any citizen in a State other then if specifically
requested to do so in case of domestic violence (then meaning to be; civil war). As
indicated in this document the Federal Government hasnt even powers to increase taxes in 10
time of war outside the appropriation/tax Bill and as such hardly could be deemed to
suspend civil rights where it had no such legislative powers in the first place.

His Honour CALLINANA J also stated;
QUOTE 15
811 I next make reference to s 51(x), which is concerned with fisheries in Australia beyond territorial limits.
My reference to this placitum is not so much for the language that it uses, but to show how this Court has
departed, from time to time, from its earlier, and sometimes even relatively recent, decisions. In Bonser v La
Macchia
[1025]
, Barwick CJ, Kitto, Menzies and Owen JJ (Windeyer J dissenting) held that the
Commonwealth Parliament had no power over fisheries under s 51(x) within three nautical miles of the 20
coast of an Australian State.
END QUOTE

One should note that the Framers of the Constitution held that only within the 3-mile zone
existed powers as beyond fell within the UK Parliament powers, albeit accepted that it 25
could be extended in future times, pending British legislation.

* Didnt CALLINANAN J raise the issue of Lange in Lange v Australian Broadcasting
Corporation of freedom of speech?
30
**#** He did and I will quote this in a moment. The issue however is that this case before the
Court was not just one between the States and the Commonwealth of Australia as to who has
certain legislative powers, but was also and so in particular if the CIVIL RIGHTS of a worker to
enter into a contract upon local laws, of a State, could somehow be interfered with by the
political union called Commonwealth of Australia! You see, it is like the right to vote (Section 35
41 of the Constitution) and the right therefore to not to vote.

* I get you, you refused to vote and succeeded in Court on constitutional grounds, is that it?

**#** You are on the right track. Not only did the Framers of the Constitution refuse to accept 40
compulsory registration and voting (Hansard 15-4-1897) but no Colony at the time had any
compulsory voting and the Framers of the Constitution made clear that people may desire not to
vote in referendums. Hence, Referendums are to be counted upon the number of people who are
actually voting and not upon the number of electors that might be entitled to vote. If one does a
close scrutiny of what the Debates were about you will find that the Framers of the Constitution 45
were very careful not to tie down the referendums to the number of electors entitled to vote but in
fact did debate that many may not desire to vote and so it should be considered upon the votes
that was actually done.

Mr. DEAKIN:

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If the franchise were uniform I do not think that the more populous States should have their abstinence from
voting allowed for, as it is in this plan. It might even enable them to negative a proposal which secured, not
only a majority of the States, but actually a majority of those persons who took the [start page 1026]
trouble to go to the poll.
And 5
Mr. DEAKIN:
The amendment would be defeated solely by the abstinence from voting of that very large State.

In 1915, the Commonwealth of Australia contemplated to hold a referendum to make voting
compulsory but this was aborted. Since then some States introduced compulsory voting and then 10
the Commonwealth of Australia introduced on a private members bill in about 1923 for
compulsory voting legislation.

* So they were entitled to do so?
15
**#** No, because as the Framers of the Constitution made clear, the Commonwealth of
Australia could not restrict the rights of electors for what they had in their State legislative
powers. As such, at the time of the introduction of compulsory voting by the Commonwealth of
Australia there were several States who had no compulsory voting and as such the
Commonwealth of Australia unconstitutionally in that regard introduced compulsory voting. 20

* You stated at that time, is that meaning they could have done so if the legislation had been
introduced at a later stage after all States had introduced compulsory voting?

**#** No, because as I stated the Framers of the Constitution had specifically refused to give 25
such legislative power to the Commonwealth of Australia and as such the fact that the States
introduced compulsory voting could not somehow circumvent this embedded prohibition.
More over, we should look at what the Framers of the Constitution stated at the conclusion of the
Debates, having passed the Constitution Convention Bill 1898;
30
Mr. DEAKIN.-
In this Constitution, although much is written much remains unwritten,
And 35
Mr. DEAKIN.-
government for the whole of the peoples whom it will embrace and unite. 40
any detailed examination of, or any elaborate apology for, the Constitution which we have been engaged in
are about to commit this new Magna Charta for their acceptance and confirmation, and I can conceive 45
upon which we are about to invite the peoples of Australia to vote. The Great Charter was wrung by
to themselves.
Again; 50

Page 251
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The wording political liberty and A charter of liberty is enshrined in this Constitution
clearly underlines that while the commonwealth of Australia may put in place a general mode of
voting, as this they extensively debated, it could not however force anyone to vote or deny to
vote. 5

* But, doesnt the Commonwealth of Australia deny people to vote if they travel overseas?

**#** Well in certain instances it does and so unconstitutional as Section 41 of the Constitution
secure their right to vote, regardless if they desire to vote or not. It is their liberty to vote or not to 10
vote. The quotation above also makes clear it is;

This new charter is to be given by the people of Australia to themselves.

As such, where there are two parties in dispute about the legislative powers, being it the States 15
and/the Commonwealth then the High court of Australia cannot resolve this with a total
ignorance that the People own the Constitution and their rights and interest are not considered,
but it must consider if those civil rights are appropriately catered for as intended by the
Framers of the Constitution. Something I will address a bit later.
We now turn for a moment to the judgment of CALLINAN J 20
QUOTE
742 The Engineers' Case overruled D'Emden v Pedder
[883]
. Those who constituted the Court when the
earlier case was decided were, for the most part, closer in time, circumstances and knowledge to the
Constitution, and their substantial contribution to it, than the Justices who comprised the Court in the
Engineers' Case. In D'Emden v Pedder Griffith CJ found an implication in the Constitution of non- 25
interference of the respective polities with one another by necessity
[884]
. The joint judgment in the
Engineers' Case criticized that interpretation as depending upon an implication formed on the "vague,
individual conception of the spirit of the compact"
[885]
. I interpolate that it is difficult to reconcile this
criticism with the inference by this Court of an implication of freedom of political speech drawn by this Court
many years later in Lange v Australian Broadcasting Corporation
[886]
, not from the spirit of the compact, 30
but from the "structure"
[887]
of the Constitution and on the basis of the judges' perceptions of contemporary
society and conditions
[888]
.

743 There are references in the joint judgment in the Engineers' Case to the desirability, in the interpretation
of the Constitution, of adherence to the ordinary, or the "golden", or the "universal" rules of construction of 35
statutes
[889]
. One such rule, to which lip service only seems to have been paid, and it may be observed, not
only in that case by the Commonwealth, but also in some subsequent cases, is the necessity to read an Act of
Parliament, and by analogy, a constitution
[890]
, as a whole, a matter of particular relevance to this case as I
have already said.
END QUOTE 40
QUOTE
[883] (1904) 1 CLR 91.
[884] (1904) 1 CLR 91 at 110.
[885] (1920) 28 CLR 129 at 145.
[886] (1997) 189 CLR 520. 45
[887] (1997) 189 CLR 520 at 566-567 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and
Kirby JJ. In the passage cited there is a reference to "text" as well as "structure" but the relevant language of
the text is not identified.
[888] (1997) 189 CLR 520 at 570-571, citing McHugh J in Stephens v West Australian Newspapers Ltd
(1994) 182 CLR 211 at 264. 50
[889] (1920) 28 CLR 129 at 148-150.
[890] In the Engineers' Case (1920) 28 CLR 129 at 151 the joint judgment acknowledges that the ordinary
meaning of the terms employed in one place may be restricted by terms used elsewhere: "that is pure legal
construction", but the judges, having made that statement, do not appear to have applied it.

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END QUOTE
You may notice that the Engineers Case for example was in 1920 at a time the High Court of
Australia had banned the usage of the Hansard records of the Constitution Convention Debates to
be used.
5
* Why?

**#** Well, I discovered that OConnor seemed to have had a hand in this in 1904, and I
concluded this may have been as to avoid litigants (so their lawyers) to rely upon the Hansard
records of the Constitution convention debates as to prove their point. 10

* Isnt that a serious issue?

**#** Indeed, I view it is. Lets have a look what Griffith stated in 1907, and then check back
what he stated being one of the Framers of the Constitution; 15

The joint judgment referred to;
The question was whether it also was a law with respect to corporations of the kind described in s 51(xx).
Griffith CJ, who was in the majority, said
[12]
:
"It is common ground that [the relevant sections of the Australian Industries Preservation Act], as framed, 20
extend to matters relating to domestic trade within a State, and the question is whether the power to make
laws with respect to 'foreign corporations, and trading or financial corporations formed within the limits of
the Commonwealth' extends to the governance and control of such corporations when lawfully engaged in
domestic trade within the State. If it does, no limit can be assigned to the exercise of the power. The
Commonwealth Parliament can make any laws it thinks fit with regard to the operation of the corporation, for 25
example, may prescribe what officers and servants it shall employ, what shall be the hours and conditions of
labour, what remuneration shall be paid to them, and may thus, in the case of such corporations, exercise
complete control of the domestic trade carried on by them."

However it omitted to use this clarification; 30
Sir SAMUEL GRIFFITH: I confess I feel very great doubt whether the provision should or should
not be put in here. I do not think the hon. member, Mr. Kingston, has removed the difficulty that I felt
as to its being an interference with property and civil rights. Does the hon. member mean that a court 35
of conciliation might direct that the wages of workmen should be raised?
Mr. KINGSTON: That is a question of detail!
Sir SAMUEL GRIFFITH: It is a question of principle. Does the hon. member mean matters of
principle like that, because that might entirely depreciate the value of property in a state, or drive an
industry out of a state? From that point of view, my vote will be determined in the matter. I think, 40
much as I desire to get this power for the federal parliament, that we ought to hold fast by the principle
that we are not going to interfere with the rights of property in the states.

Again;
I do not think the hon. member, Mr. Kingston, has removed the difficulty that I felt as to its being an 45
interference with property and civil rights.

In MODERN POLITICS AND GOVERNMENT, Fourth Edition by Alan R. Ball, ISBN 0-
333-46413-3 (paperback) at page 33
corporatism 50
Corporatist approaches are the most recent of the investigation of where power lies. Modern corporatism
emerged in the 1970s to analyse power distribution in the contemporary liberal democratic state. Corporatism

Page 253
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st
stresses the incorporation of certain groups in society into the decision making process. The state benefits
from the co-operation and expertise of groups such as industrialist and trade unions in the implementation of
political decisions, while the groups gain from a share in political power and the recognition of their
monopoly as representatives of certain societal sections.
5
It ought to be clear therefore, that the modern way of conduct of corporations may be different
then it was at the time of federation. An added problem has been that the Commonwealth of
Australia engineered not just businesses but even State Government Department and the courts to
have ACN/ABN numbers for taxation purposes it has resulted that public utilities are not
incorporated. Therefore, when dealing with the Corporation power within Section (xx) one must 10
be extremely careful not to allow this power to be used to the maximum where the
Commonwealth of Australia somehow artificially manufactured a requirement of registration of
corporation. Indeed, if this kind of conduct were to be accepted then no subsection might be safe
from being unconstitutionally exploited as all the commonwealth of Australia is to do is to
engineer a change in meaning of what the 1898 text stood for to be altered by implication. The 15
example of the word gay set out below is a clear example.
powers which ought to be left to the states. The point is that we are not going to make the Commonwealth 20
a kind of social and religious power over us. We are going into a Federation for certain specific subjects.
Each state at present has the power to impose religious laws. I want to leave that power with the state;
I will not disturb that power; but I object to give to the Federation of Australia a tyrannous and over-
riding power over the whole of the people of Australia as to what day they shall observe for religious
reasons, and what day they shall not observe for that purpose. The state of Victoria will be able to pass 25
any Sunday law it likes under my scheme. It can pass any law of that sort now; but surely it is a proper
thing for a state, and it is not a proper thing for the Commonwealth, to exercise this power. I feel that
honorable members who value state rights reserved [start page 1736] to the states, who value the preservation
of the individuality of the states for state purposes, will agree with me that it is with the state we ought to
leave this power, and that we ought not to intrust it to the Commonwealth. For instance, our factory laws 30
are left to the state.

Again;
. For instance, our factory laws are left to the state.
35
When dealing with the Framers of the Constitution and how they later as judicial officers made
statements one must not neglect to check back what their position was during the framing of the
Constitution and later. It is a well known factor that politicians say one thing and does another
when elected. Also, when dealing with Isaac you need to keep in mind that he was in favour of
total federal control of industrial relations while a Framer of the Constitution, and having been 40
unsuccessful may perhaps have misused his position to achieve after federation what he was
unable to obtain during the framing of the Constitution. As such, their statements when framing
the Constitution should be held more reliable then some statement made after the
Commonwealth of Australia was already in force.
45
Re Hansard 12-4-1897 Constitution Convention Debates (Official Record of the Debates of
the National Australasian Convention) (Chapter 33 of the CD)

QUOTE 16-3-2005 correspondence to Malcolm Turnbull
Mr. GLYNN Does that put a maximum on military expenditure? 50
Mr. PEACOCK: A maximum on all expenditure!

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st
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.
Mr. SYMON: Does that prevent any increase in case of war?
Mr. BARTON: Yes. 5

If the Commonwealth of Australia cannot even increase taxes in time of war how then could it
possibly have any greater powers to suspend civil rights?
His Honour CALLINAN J stated; 10
QUOTE
648 As the joint judgment notes, the Act empowers the Minister to terminate a bargaining
period, if he or she is satisfied of certain matters, including, that industrial action is
threatening the health or welfare of the population, or part of it, or would cause significant
damage to the Australian economy, or an important part of it
[723]
. These points should be made about this 15
provision: true it is that the Minister's power is confined to the termination of a bargaining period, and that it
is the AIRC which is given the jurisdiction to order that "industrial action" stop, but direct executive
involvement of this kind in the affairs of non-governmental employers and employees would represent
a significant departure, not only from current industrial practice, but also industrial law
generally
[724]
, except perhaps in times of war, or otherwise in implementation of the defence power. 20
END QUOTE
Again;
except perhaps in times of war, or otherwise in implementation of the defence power.

There is no such powers within the defence powers for the Commonwealth of Australia to 25
suspend civil rights and the purported amendments to the ASIO legislation commonly known
as TERRORIST ACT are and remain unconstitutional, as it infringes upon the civil rights of the
people. If just judges did first extensively researched the Hansard records of the Constitution
Convention Debates before they formed an opinion and indeed before putting it in a judgment.
The fact that judges previously may have made such ill-conceived statements can be no excuse to 30
repeat the same.
Kirby J stated in his reason of judgment;
562 The defence power: In the joint reasons, reliance is placed upon this Court's wartime decision in Pidoto v
Victoria
[636]
. Reference is made to the interpretation of that case by Gleeson CJ in Pacific Coal
[637]
. In that
decision, his Honour stated that Pidoto denied an interpretation of s 51(xxxv) as importing a negative 35
implication on the use of other heads of federal power to enact laws with respect to conditions of
employment in other words, laws generically answering to the description of laws with respect to industrial
relations. The holding in Pidoto was that laws enacted under the defence power in time of war, dealing with
industrial matters in ways that would not have been valid if enacted under s 51(xxxv), were nonetheless valid.
The decision is one unique to the exceptional circumstances affecting the ambit of the defence power during 40
hostilities that threaten the life of the nation.

563 In his reasons in Pidoto
[638]
, Williams J referred to an earlier elaboration of the law in Victorian Chamber
of Manufactures v The Commonwealth (Women's Employment Regulations)
[639]
. In that decision, his Honour
had said of the defence power in this connection: 45
"The paramount consideration is that the Commonwealth is undergoing the dangers of a world war,
and that when a nation is in peril, applying the maxim salus populi suprema lex, the courts must
concede to the Parliament and to the Executive which it controls a wide latitude to determine what
legislation is required to protect the safety of the realm ...
Similar circumstances to those which in times of war enable the Parliament of Canada to encroach 50
upon matters which in normal times are exclusively reserved to the States [sic] enlarge the operation
of the defence power of the Commonwealth Parliament to enable it to legislate so as to affect rights

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which in normal times are within the domain reserved to the States".
How on earth can the Commonwealth of Australia somehow in war-time have different powers
then in peace time, one may ask? The Framers of the Constitution did not present such a scenario
at all. The purported WAR AGAINST TERROR it self should be a warning that such
application of the Constitution could have severe consequences. Simply, war or not, if the 5
Government is not even able to increase taxation to fund war then it hardly could do better in
other areas. Again, the High Court of Australia should not decide upon LEGAL FICTION but
at least give a reasonable consideration to it all.

Mr. BARTON.-Our civil rights are not in the hands of any Government, but the rights of the Crown
in prosecuting criminals are.

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 20
Parliament, and you will introduce the greatest complication and intensity of feeling that was ever seen.
Mr. WISE:
They forget that this commonwealth can only deal with those matters that are expressly remitted to its
jurisdiction; and excluded from its jurisdiction are all matters that affect civil rights, all matters that affect
property, all matters, in a word, affecting the two great objects which stir the passions and affect the interests
of mankind. 30
And
Mr. WISE:
I fail entirely and I shall be glad if some alarmist will enlarge my views on this matter-to perceive in this bill
any question on which there is any possibility of a conflict between the states and the people, except, in one
respect, and I will define that in the largest possible way. In legislation affecting commercial interests, or 35
financial interests, it is possible to imagine that the states will be brought into conflict as states with the
concentrated majority of the populations of the two large states over a question of trade. It is possible to
imagine the same thing arising over a question of commerce, or over a question of finance. Now, I ask if such
a state of things arises that the Committee will give attention to the nature of the interests which are
threatened. If conflicts arise over matters of commerce, trade, or finance, the interests that are threatened are 40
not the interests of individual traders, but the interest of the state as a whole conducting a general class of
business, or carrying on a particular sort of occupation. I will test what I mean. An effort is being made now
in Victoria to grow beet for sugar; I hope it maybe successful. A similar effort in its earlier stages is
manifesting itself in this colony. Supposing that the sugar interests in Victoria, and the sugar interests in New
South Wales, became very powerful, and employed a large number of hands, and influenced the legislature. It 45
is then possible I do not think it is likely, and I am only giving this as an illustration of the way in which, it
appears to me, any conflict can arise it is possible that the voters in Melbourne and Sydney, largely interested
in beet sugar, should insist on their representatives putting a heavy excise duty on cane sugar. This might
have a prejudicial effect on the jam industry of Tasmania, and the fruit industry of South Australia. It is easy
to see that it is possible that the two large colonies could so manipulate the powers to regulate trade and 50
commerce that they would be able to crush out or inflict a very serious blow on the commercial prosperity,
not of an individual, not of the whole commonwealth but on a particular group of individuals who are enabled
to carry on an industry which is affected, because they live under favourable climatic conditions. Is that a

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power which we can expect these colonies [start page 645] that are affected readily to concede? I will reverse
the position. There is one clause in the constitution which gives the commonwealth power to regulate trade
and commerce, and communication between the states for the purpose of furthering commerce necessarily
follows the federal parliament in order to give effect to that provision. Everyone will admit that one very
useful means of communication is a river, and that if the power of regulating trade and commerce is to be 5
unanimously conceded to the federation, logically the federation should be able to take over the full control
of all the river systems which may be made navigable, or which are navigable throughout the commonwealth,
especially where those rivers pass through one colony into another. Yet there is not the most violent
enthusiast in New South Wales, over what he considers this popular rule, who does not insist, and properly
insist, that New South Wales cannot and ought not to surrender the control of her river system to the federal 10
parliament. For what reason? Because our rivers are wanted for internal purposes of irrigation, because our
rivers serve the double purpose of developing our national resources-the resources of New South Wales as a
state-as well as the purpose of assisting communication and furnishing means of navigation from one part of
the commonwealth to the other. If those who insist that the small states are never to be allowed to protect
themselves against the possibility of unauthorised irresponsible power, of unduly exercised power by the 15
majority of the populations of the larger states, logically they will also insist that we, who represent them
here, should hand the control of our rivers absolutely over to the majority of the commonwealth. Why, to
parody their argument, should not the majority rule? If the majority want to use the rivers of New South
Wales for navigation, and to prevent us from using them for irrigation, why should not the voice of the great
majority prevail? 20
An HON. MEMBER:-
Mr. WISE: The answer is a simple one. I am not dealing with theories. I am dealing with facts. I accept the
facts. The answer is this: we intend to develop New South Wales as a separate state by utilising, our natural
resources. We do not dispute that logically you may demand these rivers; but we say that we require their
waters for other than commonwealth purposes, and we intend to keep them. It, therefore, seems to me that a 25
great deal of this cry for the rule of the majority comes from those who are very well disposed to the rule of
the majority when they form the majority, but who are quite determined that they shall not submit to that rule
when there is a possibility of their being left with the minority. It reminds me of the incident in the
Philadelphia Convention when the question arose as to the United States being allowed to confer titles of
honor. One bluff and hale democrat declared that for his part he would support a peerage, if he were quite 30
sure of being one of the dukes; but as he knew that he had not any chance of that, be was opposed to any
peerage whatever. And so with us, or some of us. They will support the rule of the majority so long as there is
no fear of the majority controlling their special interests. But the moment it is said we should hand our
railways or rivers absolutely to the rule of the majority, then we have the most clamorous cries on behalf of
state rights raised by the very men who, when the interests of other states are involved, are most generous in 35
giving them away. What is, after all, the possibility of a conflict? When the causes are gone, the possibility is
reduced almost to a minimum. But supporting that in the matters I have referred to a conflict arises. We have
the means of getting [start page 646] rid of the conflict by ordinary good sense, and if that fails by a
dissolution, and, a third method is proposed. After all these methods have come into play, will it not be a
fraction of a fraction of cases in which any insoluble conflict arises between the people of the states? I would 40
not hesitate to say that, in the last resort, if the power of the concentrated state populations were used I do not
believe it ever will be to destroy the country interests, the interests of the interior, the people of the sparsely
populated districts have the right of self-preservation.
Mr. HIGGINS: My hon. friend confounds the interior with the smaller states!
Mr. WISE: I accept facts; and, indeed, that is the distinction: that two large states have the great city 45
populations. It is the small states in a rudimentary or earlier stage of development which have an agricultural,
pastoral, and mining population. It is the concentrated population which makes a large state. That which
makes New South Wales a large state is that it has Sydney; that which makes Victoria a large state is the
possession of Melbourne. In point of territory they are smaller than either Queensland or Western Australia.
Mr. HIGGINS: There is the same proportion of town population in Tasmania as in New South Wales! 50
Mr. WISE: It is not a question of population. The character of the people's pursuits is determined by the
climatic conditions very largely, and by the question whether or not they are engaged in the development of
internal productiveness or in the carrying on of external commerce. I want to meet the argument that all I can

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say can be turned the other way. I deny that. The relative position of the small states towards the large ones in
questions that may give rise in conflict is not the same. The relative position the small states to the large
states is not even an equivalent position; for this simple reason: In the long run, and behind, everything, is the
ultimate sanction of all law that is, physical force. Behind the legislator there is the policeman, and if the case
did arise where the small states, by opposing their veto to a scheme which had passed by a large majority the 5
representative assembly, did disorganise the industries of the large states, if they did affect their existence as
states, if they did give rise to such a tremendous outburst of feeling that the national progress of Victoria or
New South Wales; felt itself imperilled, I ask who is going to enforce that veto? How will the small states
ever be able to give expression to their will? In the ultimate resort the large states have the power of effective
resistance by reason of their population. In the ultimate resort the small states have not that power. The small 10
states could be coerced by force-physical force if necessary and the large states could not. Therefore, we are
in this position: we are dealing with imaginary dangers and difficulties, which no one here admits or
considers are likely to arise difficulties which may conceivably arise; but if they arise as against the large
states, having it in their power to protect: themselves, they. arise in the case of the small states without that
power; and all the small states, are now asking is that they shall come under the constitution with the physical 15
power of the commonwealth to protect them in the last resort, which the large states have by reason of their
numbers; They should be given that same power by a provision in the constitution which enables them
to oppose in the long run an ultimate veto, not of the senate, but an ultimate veto of the votes of their
own people against any proposal which is intended to deprive those people of their liberties.
20
A fact that should not be overlooked is that the passing of the amendment Act of Industrial
Relations (WorkChoices) was as a result of an act of constitutional TERRORISM.

November 03, 2005
Question Time 25
Question Time in the House of Representatives descended into chaos today. Rowdy, uproar, fiery does not
describe what happened.
It was a shambles for half an or so, caused by a parliamentary brawl. The speaker's authority was continually
challenged by the ALP, and rightfully so. Another seven MP's were ejected from the Chamber by a biased
speaker:--that is 18 MP's in two days: 17 ALP and Liberal. Yet it takes two to tango--hurl the taunts, jeers, 30
sneers, and abuse. However, a blind eye is being turned to the front bench of the Howard Government by the
Speaker, even though the Ministers are not answering the questions asked of them.
So we go from point after point of order on relevance being made by the ALP. And they are right in 9 out of
10 situations.
The Speaker is not independent nor are his rulings fair. He is out of his depth and goes along, and supports, 35
the Howard government's white-anting democracy. The Speaker really ought to be defending Parliament
from the executive's power grab.
Posted by Gary Sauer-Thompson at November 3, 2005 08:34 PM
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Comments
While I am aware about the ejection of ALP members, I for one rather ignore this in this case in view that
there is a far more serious issue to confront.
As I made clear in my correspondence to the Speaker, he is there to ensure that all Members of the Parliament
have equal rights in representing their constituency and therefore cannot tolerate that Members have to vote 5
on a bill without each Member having its own copy. The speaker owns a duty foremost to the office of the
Speaker well above his political associations.
It is his task to ensure that Members have sufficient time to consider bills before being requested to vote on a
Bill.
In my view, the fact that most members of the opposition were not provided with a copy of the Industrial 10
Relations Bill should have been totally unacceptable to the speaker and he should not have allowed the
presentation of the Bill unless first every Member was provided with a copy of the Bill.
It does not matter of government political parties have the majority in the house, it is an issue that the Speaker
is responsible for proper conduct of what is going on in the House. Perhaps, had the Speaker, so to say, some
credibility, then a lot of problems could have been avoided in the first place regarding the non availability of 15
copies of the Industrial Relations Bill.
Posted by: G. H. Schorel-Hlavka at November 5, 2005 03:47 PM

GH,
I could not agree more with your argument. See this for the role of the Speaker. 20
Maybe the ALP will become serious about defending the power of Parliament as an institution, rather than
just itching to get their hands on the machinery of executive dominance.
They do need to develop some reform proposals to improve the functioning of democracy as well as
concentrating on clever theatrical parliamentary tactics.
Posted by: Gary Sauer-Thompson at November 5, 2005 04:30 PM 25

Please do read Chapter 32B What is CONSTITUTIONALLY the meaning of TERRORISM
before continuing reading further, as to get a better perception
We have found that despite what the Framers of the Constitution stated the Senate is being
terrorised by the Government of the Day to deny it appropriate time to consider the Amendment 30
Act, and what was shown already below the House of Representatives also had the same problem
where members were not even provided a copy of the relevant Amendment Act.

Mr. REID.-
Under ordinary circumstances nothing more is heard of the Bill that session, and there is a
prorogation. Then the Ministry and the House of Representatives have time for further reflection, and they
bring in the Bill next session, no doubt in the shape nearest to that which will commend it to the Senate. That
Bill goes up to the Senate, who then either accept it or again amend it. Fresh efforts are made to come to an 40
agreement by various means, including, perhaps, a conference, and still it is found that it is impossible to

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agree. Then there is a dissolution on the Bill, and the whole of the electors are appealed to as to whether
the Senate was right in refusing to pass the Bill in the shape in which it was sent to them the second
time. There is a verdict by the electors. What is the issue? The issue clearly is: Who was right?
And
Mr. ISAACS.- 5
Obviously, therefore, it is quite conceivable that if questions arose in which the interests, real or
supposed, of the more and the less populous colonies diverge, the two Houses would come into direct
conflict. Not less plainly it would be of great consequence to the Australian Commonwealth that such
dead-locks should be determined as speedily as may be, and also in a sense which would commend
itself, as far as may be, to the general approval of the great body of the colonists. 10
And
Mr. ISAACS.-The work was issued in 1896, and therefore embodies, I should may, the latest phase of
thought on the subject. I think that this passage answers nearly every objection that has been raised, or, as I
conceive, can be raised to the fairness of the referendum:-
If the electorate is to judge policies, it is surely less likely to err if it judges them on a clear and distinct 15
issue. In such a case it is most likely to act independently, and not at the dictation of wire-pullers. It is
to be remembered, too, that the referendum is not intended as a substitute for representative
government. All the advantages of parliamentary debate would still remain. Policies would not be
thrown before the electorate in a crude undigested undeveloped state. All measures would still pass
through Parliament, and the great majority would be finally decided by Parliament. It would only be 20
in a few cases, after a measure had been thoroughly discussed in all its bearings, after the two Houses
had given their judgment, that the nation would be called to adjudicate. The referendum would be an
appeal from a party majority, probably made up of discordant groups, to the genuine opinion of the
country. It would be an appeal on a question which had been thoroughly examined, and on which the
nation had every means of arriving at a conclusion. It would be a clear and decisive verdict on a matter 25
on which the two branches of the Legislature had differed.
Let me come to another writer in 1897. Professor Sidgwick, in the second issue of his work, at page 559,
having already spoken about the inadvisability in his opinion of direct legislation in ordinary cases, with
which I need hardly say I most thoroughly agree, says-
There are, however, special cases in which the direct intervention of the people in legislation appears 30
to me on the whole advantageous. The first case arises when in a Legislature constructed on the two-
Chamber system, it is important to avoid a dead-lock resulting in a disagreement between the two
Houses, that is, when the urgency of the need of some legislation on a particular point is generally
recognised, but the Chambers cannot agree on the form that the legislation is to take. Under these
conditions, a reference to the citizens at large has many advantages as a method of terminating a, 35
disagreement. The dignity of the other Chamber is saved if it has to yield to the people and not to the
rival Chamber, while by the reference of a particular measure to the judgment of the citizens a more
clear expression of the people's will is obtained than a general election of representatives can give.
Again, the process is more educating, since a single definite issue is [start page 2185] placed before the
country. It also avoids the danger involved in the representative system that an interested or a fanatical 40
minority of citizens may, by concentrating the whole voting power at a general election on a particular
question, obtain a fictitious majority of representatives pledged to support this demand.
Albeit it wrongly, the High Court of Australia decided that plural Bills could be considered
where there had been a double dissolution and the Houses were considering bills jointly. This
document would not allow for the full set out and neither is it required as my various books 45
already canvassed this issue extensively, but the Framers of the Constitution made clear that
unless the government of the Day did pursue a Double Dissolution where a Bill was twice
blocked, it must be deemed that the Bill no longer was left on foot if the Parliament continued
proceedings regardless of the second defeat. The Framers of the Constitution made clear that a
bill was to be the trigger for a Double Dissolution and a Parliament may simply hold it 50
undesirable to pursue a Bill that was twice rejected, a Double Dissolution might not be wanted
by them for political or other reasons. Hence, a bill must be deemed abandoned if after the

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second rejection the Parliament continues its business without the government of the Day
seeking a Double dissolution. It must be recognised that the High Court of Australia at the time
did not consult the Hansard records of the Constitution Convention Debates, albeit by its own
caused fault for refusing to allow, albeit unconstitutionally, the usage of the Hansard records of
the Constitution Convention Debates, and as such there can be no excuse. In fact, its decision to 5
allow Senators to vote in the Senate is a sheer absurdity as the Hansard records of the
Constitution Convention Debates made clear that Territories could have their representatives in
the Senate but they would not be entitled to vote as they first had to obtain Statehood. Again,
these and other matters have been extensively canvassed in my previous published books. As
such, where the High Court of Australia handed down decisions in the past which were if not 10
totally absurd were ill conceived then it is an error to rely upon those judgments which never had
the benefit of being considered using the Hansard records of the Constitution Convention
Debates. It is therefore not relevant what Higgins, Isaacs, OConnor, Barton, etc, etc, stated in
judgments since federation where they had circumvented the usage of the Hansard records of the
Constitution Convention Debates, this even so Barton himself as like many others pointed out 15
during the Debates that the High Court of Australia would be obligated to interpret the
Constitution using the Hansard records of the Constitution Convention Debates as to what their
recorded intentions were.

Mr. WALKER.-Yes. He says-
If the Sovereign is to retain any prerogative rights in respect to the Commonwealth, the choice of her
own representative would surely be included amongst them.
If it is desired by the Parliament at any time that the prerogative should not be exercised by the 25
Sovereign in a particular way, an address indicating their desires is more in accordance with usage and
constitutional theory than an enactment purporting to limit its exercise.
I shall not go further with this matter beyond stating that I have found reason to change my opinion,
and that I intend to support those who wish to retain the prerogative of Her Majesty.
30
Yet, somehow we find that John Howard as purported Prime Minister is signing documents, such
as the appointment of the Governor-General even so constitutionally he has no such prerogative
powers. Hence the appointment is unconstitutional. Indeed, as I have exposed in my various
published books there appear to be usage of fraudulent signatures of her majesty Queen Elizabeth
II and as such the validity of the appointment of the Governor-General and other also is and 35
remains to be in question. Likewise the terror caused on orders of John Howard to order the
naval forces illegally to tow unseaworthy boats into the ocean and leave people to the perils of
the sea and having as result people drowning, is a disgraceful conduct yet the High Court of
Australia appears to me to be silent totally and if anything has unconstitutionally supported this
kind of excessive unconstitutional conduct if not directly then indirectly by its decision 40
regarding refugees, such as but not limited to its decisions to authorise ADMINISTRATIVE
DETENTION.
At the time of federation no Commonwealth prisons existed and the Framers of the Constitution
neither intended any to be created and in fact provided for Section 120 of the Constitution that
anyone accused (formally charged) or convicted was to be detained in a State prison under State 45
authority. The Framers of the Constitution made clear that there was a DUE PROCESS OF
LAW, which required to be followed before a State Court with a judicial decision and the
person ought to be heard. Somehow the High Court of Australia is able to elicit from the

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Constitution convention Debates what might suit it in regard of corporations power but somehow
it seems to me to have been totally unable to do the same governing DUE PROCESS OF LAW.
I do not know if this term DUE PROCESS OF LAW is beyond the competence of some
judges to understand what it stands for but as they proved able to read Hansard records of the
Constitution Convention Debates they then likewise should have been able to read relevant parts 5
as to DUE PROCESS OF LAW. Indeed, my 19 March 2003 application for
prohibition/mandamus within Section 75(v) of the Constitution pursued the release of all
unconstitutional held persons in the concentration camp styled Commonwealth Detention
Centres, but the High Court of Australia simply refused my constitutional right to have this
determined upon its MERITS. On that basis it is not that the Court did not have a case before it 10
that it could invoke jurisdiction, rather that it refused time and again to allow my applications to
be determine upon the MERITS of the Applications, which also was dealing with
CITIZENSHIP Yet, soon afterwards the High Court of Australia then made known that layers
should put a case before the Court to challenge CITIZENSHIP. This after it was provided already
with 8 copies of my 30 September 2003 published book; 15

ISBN 978-0-9580569-6-0 was ISBN 0-9580569-6-X
20
In my view, the High Court of Australia is operating to a great extend incompetently and lacks
appropriate consideration in certain cases. Hence, the Government of the Day can continue its
DICTATORSHIP unchecked as I experienced that once I challenged issues upon constitutional
grounds against the Governor-General as the first Defender, the judges all visited subsequently
the Governor-General and fraternized with him and to no surprise to me my case thereafter was 25
blocked from proceeding. It ought to be clear therefore, that while judges may quote past
decisions and may argue that none of the parties sought to challenge past decisions on foot
(authorities) in my view that is not relevant as the High Court of Australia itself having created
this utter legal mess is obligated to revisit the true constitutional interpretations of certain parts of
the Constitution and not blindly follow past decisions which were made in clear defiance of the 30
Framers intention that the judges should interpret the Constitution as per their intentions
expressed and recorded in the Hansard records of the Constitution Convention Debates.
No party appearing before the Court has any position to demand the High Court of Australia to
act according to constitutional requirements as the judges themselves are obligated to do so if
they desire to invoke jurisdiction. If they refuse to accept what is constitutionally required then 35
they cannot be deemed to have invoked legal jurisdiction and are more likely to have its
proceedings held to be like a KANGAROO COURT and/or a STAR CHAMBER COURT
where the rule of law (the constitution) is sparingly used or manipulated to extracts some
decision most suitable, as some may perceive, to their political masters.
40
In the book; The Australian CONSTITUTION ISBN 0 642 00587 7 At page 29;
The States derive their constitutions and powers from British statutes, just as much as the Australian
government derives its structure and powers from the British statute embodying the Constitution: it follows
that the State sets of constitutional laws continue in force except to the limited extent that the federal set is
inconsistent with the State set. 45

Therefore, it is not that the States were created out of the Commonwealth of Australia as that is a
LEGAL FICTION, the States were the renamed Colonies and underwent no alterations other
then of those implied by the constitution in the Commonwealth of Australia Constitution Act
1900 (UK) and that they no longer for this could remain to have sovereign Parliaments 50
empowered to make any legislation it pleased.

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At page 32;
This picture is to some extent misleading and to some extent incomplete. It is misleading because although
the Ministers do meet to decide general executive policy, they do not meet as members of the Federal
Executive Council. The meet as members of Cabinet, a body nowhere mentioned in the Constitution. The 5
Executive Council is a purely formal body, consisting of the Governor-General and usually only two or
three ministers, and its purpose is to receive formal advice and to approve the signing of formal documents. It
correspond to the queens Privy council in Brittain. Cabinet, the real controlling executive, meets without
the governor-General; it has its own offices and secretariat, and its presiding officer is the prime minister,
who,- like Cabinet gets no mention in the Constitution. The constitutional sketch is incomplete in many 10
ways, of which we need mention only two.

If we then couple with this the requirements in Section 57 of the Constitution where there
Appropriation Bills to go through a certain regime as any other Bill if twice rejected, yet the
appropriation bills resulting from the Budget(which is not handed down until may prior to the 15
new financial year) then it must be obvious that the government of the Day is blackmailing
basically the parliament by having to vote for the appropriation bills regardless of or otherwise
the country could grind down to a stand still in regard of the federal public service running out of
money by the start of the new financial year.
When G. Whitlam was unconstitutionally kicked out by sir John Kerr, it was found that the 20
reading of the proclamation from the steps of parliament House somehow made it legal, this,
even so the Framers of the Constitution made clear that not unless a proclamation is published in
the gazette can it be acted upon. More over, the Framers of the Constitution made clear that the
Governor-General could only interfere with a Double Dissolution to deal with a deadlock of a
Bill. There was no such provision to allow a Governor-General to get rid of a Prime minister and 25
then have someone else taking over and so to break a deadlock and then to have the Senate
voting and then call a Double Dissolution. Why on earth have this elaborate system in Section 57
of the Constitution if the Governor-General can manipulate his powers at will?

At Runnymede, in 1215, the Barons of England forced King John to sign the Magna Carta, 30
one of three primary documents establishing the fundamental rights of the English people
to this day, {The others being the revision of the Magna Carta in 1225, the Petition of Rights
[1628] and the Bill of Rights [1689]}. The primary objective and content of the Magna Carta
was the prohibition of the use of Summary jurisdiction [the Roman or Admiralty Law] as a
means of unauthorized taxation and seizure of property without due process of Law or just 35
compensation. The colonists were, on the whole, very well schooled in the Common Law
and were quite aware of the wrongs that King and Parliament were committing against them.
This eventually forced them to rebel. http://www.biblebelievers.org.au/cmlaw1.htm

What Sir John Kerr did was to vandalise the very constitutional protection invoked with the Bill 40
of Rights 1689, which was created subsequently to King James II having sacked the Attorney-
General and for this the parliament held it better to dispose of the King (without terminating his
life) by offering Prince William of Orange of The Netherlands to be crowned King of England
(by marriage to Princes Anne, daughter of King James II) if in return he signed the Bill of Rights.
Sir John Kerr did not exercise his ordinary powers to prorogue the parliament but rather covering 45
his own mistakes made a political decision to trample upon the then Prime Minister G Whitlam.
After all, not the Prime Minister or even the Treasurer are constitutionally in charge of finances
but as the Hansard records of the Constitution Convention Debates makes clear the Governor-
General is the Administrator the Executive officer as they stated. Hence, any governor-General
must be in control as that is the job for which he is appointed for to represent the monarch, and as 50
the administrator must make sure that the appropriation Bills are submitted to the parliament well
before the new financial years is due and considering the events prescribed in section 57 of the
Constitution to be followed and further a joint sitting if needed. It therefore ought to be clear that
we have a DICTATORSHIP that purports to be a DEMOCRACY. And, we have a toothless

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tiger, so to say, of a GUARDIAN OF THE CONSTITUTION, the High Court of Australia,
that cannot even manage to have its own affairs in order and thereby neither then can ensure that
the Commonwealth of Australia is managed in a constitutional manner. Again, it cannot excuse
itself that it has no judicial power to interfere as my application within Subsection 75(v) was in
fact giving it the jurisdiction it needed to deal with numerous unconstitutional matters. Yet, 5
despite these unconstitutional conducts by the Government of the Day (and that is in question
also if it is a legitimate Government) the High Court of Australia seems to be totally ignorant to
what should be done. What constitutional position did the Commonwealth of Australia have
where there was no duly elected government in the first place? Who did the federal government
lawyers then represent. The same could be stated about the State Government lawyers as they all 10
lacked Australian CITIZENSHIP. It appears to me the only people having a valid standing
where the union legal representatives as they were there to represent the workers democratic
rights, their civil rights, their rights to having the liberty to contract their labour, etc.
As is set out in this document, industrial relations is about the right of workers. Their civil
rights to enter in a contract they desire. Sure, if there is a dispute beyond the border of one State 15
then the Federal Government was given constitutional powers to legislate as to how a dispute
was to be resolved, but it is another matter to hold that somehow before any dispute existed, let
alone was to spread beyond the border of one State, somehow the Commonwealth of Australia
could dictate terms. After all, why should the Commonwealth of Australia dictate terms of
employment conditions on a State workplace when industrial strife may never eventuate. Some 20
trades may never have any industrial strife yet somehow the Commonwealth of Australia deems
it justified to nevertheless dictate its conditions, despite being prevented to legislate in regard of
religion.
Any legislation by the Commonwealth of Australia as to dictate public holidays itself is
unconstitutional as it interferes with the religious or non-religious rights of people. After all, 25
different religions have different religious practices and different holy days. Then how could the
Commonwealth of Australia dictate that certain public holidays are to be accepted in
Australian Workers Agreements (AWA) as this itself is to force a religious practice of
Christians upon non-Christians of whatever religion or non-religion they might be.
As the Framers of the Constitution made clear; 30
kind of social and religious power over us. We are going into a Federation for certain specific subjects. Each 35
state at present has the power to impose religious laws. I want to leave that power with the state; I will
not disturb that power; but I object to give to the Federation of Australia a tyrannous and over-riding
Sunday law it likes under my scheme. It can pass any law of that sort now; but surely it is a proper thing for 40
a state, and it is not a proper thing for the Commonwealth, to exercise this power. I feel that honorable
members who value state rights reserved [start page 1736] to the states, who value the preservation of the
the state. 45
Again;

Therefore, whatever the High Court of Australia judges may seek to fabricate out of the
corporations powers the clear message from the Framers of the Constitution is that; 50

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For instance, our factory laws are left to the state..

It cannot therefore be argued that despite this somehow the corporations legislative powers in
subsection 51(xx) could nevertheless circumvent this denial of power. As set out elsewhere in
this document, to use this absurd kind of reasoning then all there was needed was to have a 5
simple Constitution that provided that anything relating to money is within the legislative powers
of the Commonwealth of Australia (see subsection 51(xii) and it would have saved all the
delegates having to fight about every word used in the Constitution.
The usage of factory laws indicates that the ordinary worker would be under State legislative
power, not just in factories but also employees in ordinary stores, such as shop floor staff, 10
cashiers, etc.
Mr. BARTON.-They do not require to get authority from home, for this reason: That the local
Constitutions empower the colonies separately to make laws for the peace, order, and good government 15
of the community, and that is without restriction, except such small restrictions as are imposed by the
Constitutions themselves, and, of course, the necessary restriction that they can only legislate for their
own territory. 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. The result
is that you might pass a clause giving judicial power to a court, but you cannot by the passage of that 20
provision make the conferring of a right of action upon a subject something necessary or incidental to the
exercise of that power, because jurisdiction simply means power to determine cases where a right of
action exists. It certainly does not mean giving the right of action simply where jurisdiction is given. That is
the starting point of difference in the argument between honorable members who have spoken and myself.
Where there is a jurisdiction given, that is simply the right to try cases where there is shown a right of 25
action.

The statement; They do not require to get authority from home refers to the British
Parliament.
I accept that if workers end up in a dispute and it goes beyond borders then the Commonwealth 30
of Australia may invoke its powers to seek to deal with such a dispute. However, unless there is
such kind of dispute there is no legislative power. As such, the fact that there might be an
industrial dispute in one kind of business does not mean that then the Commonwealth of
Australia can legislate for other kind of businesses that have no part in the dispute, as they may
have in one State certain grievances and in another State different grievances and as such even 35
then there is no industrial dispute beyond the borders of one State, as it must be one kind of
dispute beyond the borders of one state. The WorkChoices legislation (as it is known) clearly is
not addressing any industrial relations incident. It directs itself to anything, regardless that the
employer may not operate intrastate but is merely locally based. As set out below also, despite
the powers of subsection 51(i) it is and remains limited to what is affecting trade and commerce 40
and it cannot be used internally to override State legislation, as it was intended that State internal
trade and commerce remains to be outside the reach of the Commonwealth of Australia.
Likewise so with industrial relations. The High Court of Australia is constitutionally bound to
protect the constitutional set upon as provided for in the Constitution and must take notice of
anyone who may seek directly or indirectly undermine the constitutional fabric of separate 45
powers and policies. Also, as the Framers of the Constitution made clear it is not just that
workers with one company are in dispute in different States
It also must be kept in mind that the Framers of the Constitution specifically stated that the State
Courts could use NULLIFICATION where Commonwealth law was deemed to be undesirable
to be enforced. To use Commonwealth Courts to enforce Commonwealth law would be contrary 50
to the constitutional division set out in the constitution and would deny the States to protect their
citizens, as the Framers of the Constitution intended it could do. While there can be industrial

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relations differences, it also can be that there is a contractual issue at steak with or without
industrial differences, and then the Courts are the appropriate way to deal with matters.
If for example a worker has been underpaid then this is not an industrial issue but a contractual
issue that should be assigned to the courts of law, as like any other debt. After all, a person may
no longer remain employed and still maintain the same grievances to being owned monies by the 5
former employer, and this would hardly then be an industrial dispute but a contractual dispute
which falls within the ambit of the State Courts. If however contracts were to be based upon
federal law then it might deny any State Court to entertain a breach of contract because it
involves a federal matter and then the Federal Courts could be clogged by thousands of cases. It
would therefore, for this also, be very unwise to interfere with what is traditionally and 10
constitutionally deemed to be a State legislative power. The Court also ought to have taken
notice of the comments made by various Ministers, and indeed John Howard that he prefer a
unification, as this underlines that his motive may be to turn the Federation into a
confederation.
15

Mr. ISAACS.-Well, but I am saying that it must not be taken as a standard. Those who framed the Bill of
1891 were themselves appointed by the Legislatures, and naturally they had a strong penchant for following 20
the same principle in the construction of the Senate. And they took, in that respect, the American Constitution
as their guide. Now, we know perfectly well that even in 1891 that would not have been tolerated in Victoria,
and, I believe, not in New South Wales either. When the Bill was brought up in the Parliament of Victoria,
reference to our debates will show that that would not have been tolerated even at that date.
And 25
Mr. ISAACS.-When we consider that, we must make some allowance for the political views of the people
who have to vote upon this Bill. I hope that that will be remembered at the last, but I fear that if the
Constitution is maintained in its present form the people to whom we have to take the measure will turn to us
and will say-"We have heard many protestations of your desire to trust the people. We have heard you
say time after time that the will of the people must govern." 30
Again;
We have heard many protestations of your desire to trust the people. We have heard
you say time after time that the will of the people must govern."

Hence, the judgment of His Honour CALLINAN J must be considered very much that where the 35
people have VETOED a question put to them in a REFERENDUM then this VETO must be
considered as a refusal to allow for such powers. As such, regardless if the joint judgment argues
that it was all along in the provisions of subsection 51(xx) then it must be deemed that if this
purported power was there all along, something I totally reject, then the VETO so often cast can
but only indicate that the people rejected such powers to be granted to the Commonwealth of 40
Australia and if therefore it was deemed that the power all along existed but the judges in the
past, so to say, were blind to this, then it must be taken that there is no such powers anymore
existing.
It does however, in my view, not show much sense let alone legal sense, that the High Court of
Australia in its joint judgment argues about the existence of the power in subsection 51(xx) 45
where it totally neglected to consider relevant comments recorded in the Hansard regarding the
Constitution Convention Debates such as;
Mr. HIGGINS.-The particular danger is this: That we do not want to give to the Commonwealth 50
powers which ought to be left to the states. The point is that we are not going to make the Commonwealth
a kind of social and religious power over us. We are going into a Federation for certain specific subjects.

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Each state at present has the power to impose religious laws. I want to leave that power with the state;
I will not disturb that power; but I object to give to the Federation of Australia a tyrannous and over-
riding power over the whole of the people of Australia as to what day they shall observe for religious
reasons, and what day they shall not observe for that purpose. The state of Victoria will be able to pass
any Sunday law it likes under my scheme. It can pass any law of that sort now; but surely it is a proper 5
thing for a state, and it is not a proper thing for the Commonwealth, to exercise this power. I feel that
honorable members who value state rights reserved [start page 1736] to the states, who value the preservation
of the individuality of the states for state purposes, will agree with me that it is with the state we ought to
leave this power, and that we ought not to intrust it to the Commonwealth. For instance, our factory laws
are left to the state. 10

Again;

How on earth could factory laws remain under State legislative powers if the Commonwealth of 15
Australia overrules it with its so called WorkChoices legislation that prevents the state to apply
its factory laws as it was able to do previously?
The tone of the statement by the Delegates to the Constitution Convention Debates were either
for total absorption of industrial relations powers by the Commonwealth or against it and limiting
it to industrial disputes beyond the borders of any State. It cannot be then that the Framers of the 20
Constitution having fought this battle to save State legislative powers then would totally ignore
these rights where it comes to subsection 51(xx). In my view it is nothing short then an idiotic
assumption to take it that subsection 51(xx) is not limited to other provisions in the Constitution
as clearly this document indicates the Framers of the Constitution made clear that the
Constitution had to be in totality, and indeed subsections were subject to other subsections. 25
The High Court of Australia is not to play to be some magician, that can somehow elude the
people with tricks to make belief something that wasnt, like it did with the Australia Act 1986
claiming some progressive independence, where it lacked the legal facts to make an appropriate
legal determination about this. The High Court of Australia stepped outside its jurisdiction when
it assumes matters to be facts where it is no more but a LEGAL FICTION. Indeed, the 30
Framers of the Constitution did indicate that a local Court could easily be swayed by
assumptions where as the Privy Council being remote would make a decision upon the LEGAL
FACTS of the case and not swayed by personal bias one way or another.
QUOTE JUDGMENT CALLINAN J
PART III. RELEVANT CONSTITUTIONAL AND POLITICAL HISTORY [681]-[735] 35
Div 1: Early industrial relations tribunals [691]-[706]
Div 2: Failed attempts to gain power [707]-[735]
(a) The Constitution Alteration (Legislative Powers) Bill 1910 (Cth) for a
referendum [709]-[715]
(b) The Constitution Alteration (Corporations) Bill 1912 (Cth) for a 40
referendum and the Constitution Alteration (Industrial Matters Bill 1912
(Cth) for a referendum [716]-[723]
(c) The Constitution Alteration (Industry and Commerce) Bill 1926 (Cth)
for a referendum [724]-[727]
(d) The Constitution Alteration (Industrial Employment) Bill 1946 (Cth) 45
for a referendum [728]-[735]
END QUOTE JUDGMENT CALLINAN J
706 Enough appears to demonstrate that the founders never intended the Constitution to confer any intrastate
industrial power upon the Commonwealth despite that some of the delegates might have wished it otherwise. 50
The contrary sentiment was too strong. Subsequent legislators well understood that constitutionally too
therefore they could not do so. I am not prepared to ignore that sentiment or the expression of it which
s 51(xxxv) manifests. What also is apparent is that none of the lawyers, politicians and judges to whom I have
referred even remotely contemplated intervention by the Commonwealth into industrial affairs, other than by

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enactments under s 51(xxxv). The whole tenor of the Convention Debates about industrial affairs was that
they could be divided into two categories only, intrastate and interstate. No one suggested that the debate, so
far as corporations were concerned, was an arid one, because the industrial affairs of these were already
within the Commonwealth's grasp under the corporations power.
END QUOTE JUDGMENT CALLINAN J 5

If corporation powers were possible to be used to any extend then basically the
Commonwealth of Australia can use its corporation powers to re-organise its working. After all,
by way of taxation provisions it has pursued that every business shall have a ACN (Australian
Company Number) or ABN (Australian Business Number) number and this includes the various 10
State Department and even the Courts. It would enable the Commonwealth of Australia to
circumvent the constitutional separation between state legislative powers and commonwealth
legislative powers as the Commonwealth of Australia then could dictate State employees what
days they can or cannot work. If then there is an election to be held the Commonwealth of
Australia could simply dictate that no work is permitted on Saturday and this then will prevent 15
any State election to be held.

The Hon. E. BARTON: I will concede that state rights was the expression that my right hon. friend 20
used. I used the expression "state interests" because I can see that what is at the root of this discussion
is not merely state rights, but also state interests.

We also should consider;
Hansard 3-4-1891 Constitution Convention Debates (Official Record of the Debates of the 25
Sub-clause 13. Banking, the incorporation of banks, and the issue of paper money.
Colonel SMITH: I should like to ask the hon. member, Sir Samuel Griffith, if the word "banking" covers
the possibility of establishing a bank for the commonwealth?
Sir SAMUEL GRIFFITH: I should think not! 30

What should be understood is that Section 51 is providing legislative powers to regulate not to
create. It would be against the State interest if for example the Commonwealth of Australia were
to commence to set up trading companies in opposition of the States and then use its exclusion of
land taxes as a way to compete against a State based company. 35
Simply no kind of competition is permitted within the structure of the Constitution as the
federation was not created for this. It was created to provide for a body to represent all States
(formally Colonies) for the same issues provided for in the Constitution and in regard of those
granted legislative powers was external affairs provided, and no more.
40
Before reading further it is advised first to read or have read;
Chapter 007B for the peace, order, and good government

Mr. CARRUTHERS.-
Now, any man, especially an able member of the bar like-my honorable friend, ought to know that the
worst tribunal you could have would be a tribunal that would decide, not on the sworn testimony
submitted to the court, but on knowledge of the case, and in regard to the case and its surroundings, in
the minds of the Judges-evidence of a character which cannot be shaken by cross-examination-evidence 50
which is not known to the parties interested in the case at all. I venture to say that more mischief is

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done by cases being decided by some twist or turn in the minds of Judges than by any judicial
interpretation of the evidence submitted to the court. Now, my great objection to establishing the final
Court of Appeal in Australasia is because there is existing in the minds of the Judges that unconscious
bias.
5
And this is what the High Court of Australia is currently doing time and again.
We have deliberately decided previously that the Constitution should only be amended by direct 10
appeal to the electors, in which the vote shall be counted in two ways. I do not propose to alter that
provision in the slightest degree. We have provided that measures altering the Constitution shall only come
into force after they have been carried by absolute majorities of both Houses. I include the same provision in
this clause. Before a matter can be sent to the referendum, both Houses must by absolute majorities agree
thereto. 15
And
I admit freely that as the Constitution is a deed of partnership, it is absolutely necessary to have the 20
High Court to interpret it, and to see that the various co-partners keep in all that they do within the
four comers of the deed to which they have agreed.

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.

Mr. BARTON.-Yes, since then, as is pointed out in a little handbook which my honorable friend lent me.
But the question for us to consider is whether a court like the Federal High Court or the Privy Council would
ever come to such a conclusion. One would think it highly improbable. The real question that may arise under
this Constitution is whether the Commonwealth can make a law establishing or prohibiting the free exercise 35
of any religion. 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 a prohibition against the exercise of such a power.
If the amendment of the honorable member were adopted, the clause would read:- 40
A state shall not, nor shall the Commonwealth, make any law prohibiting the free exercise of any religion,
or imposing any religious test or observance.

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Mr. ISAACS.-Would that prevent the Commonwealth from insisting upon Sunday being kept as a
day of rest?
Mr. BARTON.-The honorable and learned member (Mr. O'Connor) pointed out that it might
prevent the passing of a law for Sunday observance. The real question for-as to decide is whether the
clause should or should not remains. The only difficulty I have upon the point is this: I do not anticipate 5
any trouble from the want of a prohibition upon the states forbidding them from dealing with religious
questions, but we must always [start page 662] recollect that humanity has a habit of throwing back to
its old practices. Since a couple of hundred years ago we have been tolerably free from sumptuary
laws. But there is in many quarters a great disposition to take to these laws again, and we may before
many years have passed be overwhelmed with them. 10

Mr. DOBSON (Tasmania).-It is quite evident that the Convention have had a good dinner; but I do not
think that we can very well frame a Constitution on after-dinner speeches. I regret the numerous occasions on 15
which I have had to differ from the Right Hon. the Premier of New South Wales, but I have now, with the
utmost deference, to differ from him again, because I think he has used an extremely good argument why this
clause should be engrafted on the [start page 1119] Constitution. He tells you to leave it to brotherhood and
generosity, and yet he absolutely says-"Supposing the time should come when any state wants financial
assistance, we can get the Constitution amended." On the one hand, generosity, and on the other hand, a 20
state has to wait for a year, or possibly more-during which time it may stop payment-before it can get the
Constitution amended. My right honorable friend must see that if the Constitution is to be amended, it is not a
question of generosity; it will be a question of law, and, as the right honorable member has absolutely
foretold the circumstances under which the Constitution will have to be amended in this respect, I ask him to
be consistent and to put this into the Constitution now. It cannot do any harm. 25

If the States however simply reject this kind of funding and insist the surplus is returned to them,
then they can fund their own projects without loosing any legislative powers, besides that no
State can give away legislative powers without approval of the electors of that State. But that is
another issue. 30
Mr. WISE.-Yes. We have been striving all through to erect an independent Commonwealth with
certain clearly-defined subjects of legislation, and to provide very strictly that the rights of a state
should not be impinged upon by the undue exercise of the powers of the Federal Parliament. In order to 35
prevent that, we have constituted a Supreme Court to interpret the laws of the Parliament. But the honorable
member now comes forward and says that the Parliament is to make the laws, and that the Ministers of the
day are to interpret them. The Parliament may make what laws it pleases. It may make laws altogether
outside the subject of the matters referred to it by clause 52, but unless in each state there is a majority
sufficiently strong to sway the Ministers in power for the time being, those laws will not be declared to be 40
ultra vires.
Mr. TRENWITH.-If there is a majority strong enough in any one state that will be sufficient.

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Constitution, while no one could complain. If this is to be allowed, why should we have these elaborate 5
provisions for the amendment of the Constitution? Why should we not say that the Constitution may
be amended in any way that the Ministries of the several colonies may unanimously agree? Why have
this provision for a referendum? Why consult the people at all? Why not leave this matter to the
Ministers of the day? But the proposal has a more serious aspect, and for that reason only I will ask
permission to occupy a few minutes in discussing it. Not that I believe that it will be carried, but I think it 10
is an echo of a widespread misapprehension which prevails outside as to the duties and functions of the
Supreme Court. It very often seems hard to a layman that that which has been enacted by Parliament should
be declared to be illegal by a Supreme Court when the statute is called into question during litigation between
two citizens. It is hard, but like everything else in politics, it is a choice of evils. The question is: Whether it
would not be of much greater disadvantage to the whole community to bring in the Supreme Court as an 15
interpreter of the Constitution before any precise case was taken before it, than it is to leave the individual to
suffer the hardship of finding that the Act upon which he relied was really invalid? I will not use my own
language in explaining the position, but, to have it put upon record, I should like to quote a passage which
occurs on pages 154 and 155 of Dicey's Law of the Constitution. After pointing out that the American
Supreme Court exists to interpret the Constitution, and to see that effect is given to its provisions, the writer 20
goes on to say that-
The power, moreover, of the courts, which maintains the Articles of the Constitution as the law of the
land, and thereby keeps each authority within its proper sphere, is exerted with an ease and a
regularity which has astonished and perplexed continental critics. The explanation is that the Judges of
the United States control the action of the Constitution, but they perform merely judicial functions, 25
since they never decide anything but the cases before them. It is natural to say that the Supreme Court
pronounces Acts of Congress invalid, but in fact this is not so. The court never directly pronounces any
opinion whatever upon an Act of Congress.
[start page 1687]
What the court does do is simply to determine A. is or is not entitled to recover judgment against X.; 30
but in determining that case the court may decide that any Act of Congress is not to be taken into
account, since it is an Act beyond the constitutional powers of Congress.
If any one thinks this is a distinction without a difference he shows some ignorance of politics, and does not
understand how much the authority of a court is increased by confining its action to purely judicial business.
In a book prepared by you, sir, entitled A Manual of Reference for the use of Members of the National 35
Australasian Convention, to which frequent reference has been made, the matter is further dealt with. You
say, at page 126, in words that I would like to adopt as part of my argument:-
No doubt the power given is very great, but it is exercised in a manner and by a body which affords
the least possible chance of friction and quarrels between the central and the provincial governments.
A veto by the central authority has to be exercised at a time when the public attention of the provincial 40
electors is directed to the matter; at a time when, perhaps, party spirit runs high, when angry passions
pervade both factions, and when the subject-matter is invested with an importance which is not
intrinsic, whereas a declaration by a court that the statute is invalid is withdrawn from the sphere of
politics. Each individual and each state looks upon it that such declaration is given only in pursuance of
the Constitution. Public attention is probably directed to other matters, and the question has, in many 45
cases, shrunk into its native insignificance; and "it is to the interest of every man who wishes the
Federal Constitution to be observed that the judgments of the federal tribunals should be respected,
and they take it that the courts are the protectors of the federal compact, and that the federal compact
is, in the long run, the guarantee of the rights of the separate state."
If the proposal of the honorable member (Mr. Gordon) was carried into effect-though of that, I think, there is 50
not the slightest chance-it would follow that any person who was aggrieved by an unconstitutional enactment
would have to persuade the Attorney-General of the state or of the Commonwealth, as the case might be, to in

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some way set the law in motion to ascertain the legality of the enactment, If the enactment was one which
affected a matter exciting strong party feeling, the result would be that the abstract question of its
validity would have to be argued before the court at a time when public feeling was excited, although it
would be of the utmost importance that the decision of the court should be entirely free from all
suspicion of political bias. Then, too, the enactment might be valid in parts and invalid in other parts, 5
or it might be impossible to interpret it in the abstract. It is impossible to foresee the bearing of a
statute upon all possible cases, and it is only when a case comes for determination before a court that
the court is able to say that in that particular case the statute does or does not afford protection to the
citizen who has relied upon it. The honorable member's proposal would remove at once the greatest of all
safeguards to the impartiality and usefulness of the Federal Court, by taking away from it its right to deal 10
with matters which are brought, as lawyers term it, to a distinct issue, and with precise and definite points, in
regard to which the full bearing of every word of the judgment could be appreciated? Instead of the court
being able to determine the legality of an enactment in its bearing upon any particular case, there
would be considerations introduced which were utterly foreign to the atmosphere of the tribunal, and
that would seriously impair the public confidence in a court which, with us, as in America, will, I 15
believe, prove to be the ultimate protector of the liberties of the people. Then, too, the amendment is in its
form so complicated that its practical working will be impossible. The honorable member said truly that the
Attorney-General constantly intervenes now. But he intervenes at the expense of the individual. The
individual presents his case, and gives a guarantee for costs. Under this proposal all that would happen would
be that the individual who wanted to assert [start page 1688] his right would have a barrier placed between 20
him and the obtaining of justice. He would have to satisfy the Attorney-General for the time being that he
would be able to pay the costs of any action, and he would have to bring sufficient political pressure to bear
upon that officer to get him to move in the case, and finally he would be left to contest the matter in his own
interests and in his own name. The result would be that the rights and liberties of every citizen in the
community would be placed at the mercy of a chance parliamentary majority. 25
Mr. GORDON.-That is the position now-the rights and liberties of every individual are at the mercy of a
parliamentary majority.
Mr. WISE.-The honorable member is now speaking of rights in respect to legislation. If the Parliament of
South Australia were to pass a law contravening the Merchant Shipping Act
Mr. GORDON.-I am not speaking of Imperial legislation. 30
Mr. WISE.-Suppose the Parliament of South Australia wanted to get rid of the Plimsoll Mark Act-even
though there were a majority it would be invalid, but according to the honorable member, when, we have here
a case exactly analogous, if the Constitution limits the power of the state, and enacts that certain powers shall
belong exclusively to the Commonwealth Parliament, and that if the state deals with them it invades the
authority of the Commonwealth Parliament, the individual is to have no rights unless he can persuade the 35
Government of the day to take up his case. It is in the interests of the poorer and uninfluential classes of
the community, it is. in the interests of the minority, that this amendment should be rejected, because it
places an obstacle in the way of obtaining that justice which ought to be free to every individual in the
community.
Mr. HIGGINS (Victoria).-I should like to add my protest against this new clause. I am bound to say 40
something, because the honorable member (Mr. Gordon) says it is only the conservative and timid lawyers
who would venture to oppose this proposal.
Mr. GORDON.-I did not say that. I said as a rule the legal profession is, according to Herbert Spencer, a
timid and conservative class.
Mr. HIGGINS.-That may be so, and if the honorable member says he did not make that statement it is all 45
right. Anyhow, I thought he said that only conservative and timid lawyers would oppose this clause. There is
no doubt the intention of the honorable member is excellent. He wants to diminish litigation. If he can show
that this will diminish litigation to any material extent, and, at the same time, will not involve us in a great
many dangers to our liberties, I will go with him, but he has not shown anything of the sort. As Mr. Wise has
shown, it will throw an unpopular minority into the power of a chance Ministry of the day. We must see to- 50
day that the rights of individuals, even unpopular individuals, are preserved in the Constitution. I think
Sir John Forrest said that I personally had not got sufficient respect for the rights of individuals.

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His Honour CALLINAN J;
QUOTE
775 It may equally perhaps be argued that despite their faults, federations are the least undemocratic of all
forms of government. The framers of the Constitution and the people who endorsed it by a popular vote could
not have been unaware of the problems, and the frustrations, to which the division of powers in a federation 5
may give rise
[955]
. Nor would they have been ignorant of the aversion that those who exercise power
generally have to any sharing of it. The legislation which is in question here, if valid, would subvert the
Constitution and the delicate distribution or balancing of powers which it contemplates. To say that the
powers are distributed, or that they are carefully balanced, is not to suggest that they ever were, or are now, in
a state of static equilibrium. In both specific and general areas, the powers of the Commonwealth obviously 10
tend to be much larger than, or are exclusive of, those of the States. There is nothing static about the defence
power (s 51(vi)) in times of national peril, or at all times, the taxation power (s 51(ii)), as to which
governments and parliaments consistently exercise much ingenuity, or, as these reasons elsewhere note, the
intellectual property power (s 51(xviii)), the immigration and emigration power (s 51xxvii)), or, in particular,
the grants power (s 96) which legitimately all allow to the Commonwealth much room to move. 15

776 The "generality doctrine" cannot be used to expand the powers of the Commonwealth in disregard of the
distribution of constitutional power for which the Constitution provides, and which careful reading of it as a
whole requires. The generality doctrine should only be invoked and applied to provisions which by their
terms, and in the light of other language in the Constitution, can be seen to require an expansive meaning. 20
END QUOTE
Again;
in particular, the grants power (s 96) which legitimately all allow to the Commonwealth much room to move

The High Court of Australia in the past seemed to me to argue that the Commonwealth of 25
Australia could in fact provide funding within section 96 even if otherwise unconstitutional,
which I view is utter and sheer nonsense, and lacks any competent explanation as the Framers of
the constitution, albeit rejecting at the time what is now s96 made clear that such provision
would not allow the Commonwealth of Australia, if accepted to make demands contrary to
constitutional provisions. 30
Again;
Constitution gives it no power to legislate in regard to that question-the Ministers for the time being in each 35
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 40
this provision for a referendum? Why consult the people at all? Why not leave this matter to the
Ministers of the day? But the proposal has a more serious aspect, and for that reason only I will ask
permission to occupy a few minutes in discussing it.

There are many other likewise statements on record that the Commonwealth of Australia could 45
only act within the provisions of the Constitution.
As I have set out in previous published books in the INSPECTOR-RIKATI book series that
section 51 is a power granted to legislate and not to create. Hence, section 69 provides for the
transfer of Department from States (as the Colonies became) to the Commonwealth of Australia.
Section 69 does not allow for the selling of those entities and it is therefore and remains 50
unconstitutional to have Telstra sold off. Indeed my published books already extensively
canvassed those issue and the fact that the framers of the Constitution opposed to follow the USA
way of having telecommunications in hands of private operators and also that they went as far as
to make clear that the Minister was responsible even to the management of vehicles, etc.
55

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Mr. BARTON: I am not complaining of anything that South Australia has done in this way. But if a person
sending a long distance message expects to get an answer, then with respect either to the message or to the
answer, he may be in a very queer position unless the whole responsibility rests with the Commonwealth of 5
keeping the whole system as clear as possible. If the colony is to retain its own particular postal and
telegraphic service, and the Commonwealth to be in charge of external questions with regard to posts,
telegraphs, and so on, then we may have this peculiar condition of things: that there may be cause of
complaint with respect to the external services under the charge of the Commonwealth, or with respect to the
internal services which are sub-divided among six States, so that there may be a responsibility divided among 10
as many as three different divisions. It would be preferable to make the Commonwealth responsible for
the whole service, for by that means you would much more clearly conserve the interests of every
member of the Commonwealth.
Mr. CARRUTHERS: The hon. member has pointed out a very good argument with regard to the
telegraphic communication, but it fails entirely so far as his attitude to this Bill is concerned when applied to 15
postal communication. He is quite prepared to let the postal communication be carried on by divided
responsibility. We have not got the telegraph wires to carry the mails, but we have railways under State
control to carry them; so that if he sees no objection to that portion of the State business which carries postal
matter being under divided control, he can surely have very little objection to the telegraph wires being under
State control. I should have been in favor of getting this sub-section into the Bill if the Convention had been 20
agreeable to take control of what I consider to be analogous to our postal and telegraphic communication-I
mean our railway communication. It is just as important that the Federal Government shall have the
care and management of the vehicles which carry human beings and their goods as that it should have
the care and [start page 769] management of the vehicles or ways which carry letters and telegrams.
But I see very little chance of carrying a proposal of that kind, and therefore my vote is to be given with a 25
view to preserving the consistency of this Bill having regard to other matters. I do think that there is a great
danger in providing for the Federal Constitution to take over too many matters at the onset. I fear that there
is a great danger that we shall over-weight Federation at the onset, and we shall have people voting
against the Constitution because as regards the particular matters they deem important we are giving
up too much of the right to govern themselves. I do say this: why should the Federal Government interfere 30
in local postal matters? What interest would the national Government have in the carrying of letters from
Adelaide to Glenelg, or from Adelaide to Hindmarsh, or from one street in Adelaide to another street in
Adelaide? These are matters of purely local concern, and you cannot dignify them to a position of national
importance. Moreover, I fear that by overloading Federation with these minor and local concerns, you bring
in that which has tended so much to degrade public life in America, log-rolling and corruption. If you give 35
over the telegraph and postal business you thereby hand to the custody of the Federal Government all
the local appointments-the appointing of the postmasters, clerks, and other officers, who do not do
national, but the purest local business; and you at once raise up a large army of civil servants, the
influence of which we want to dissociate from our national life. If possible, we should elevate the position
of our Federal Legislature above subjects of purely local concern, and what need is there to thrust these 40
matters into a great national undertaking? The hon. member's proposal allows us to go just as far as we ought
to go in this business. When this becomes a matter of national concern, let the national Government do the
work, but the Federation should not do things which are best done locally. What cannot be done best locally
should be handed over to this common executive. It is proposed to have an Inter-State Commission, which
will deal with those matters where our railways, or our public arteries-our roads, or rivers-come into conflict. 45
The idea is that the rival interests of one State against another should be adjusted and controlled by such a
Commission. It is very easy to let this matter of posts and telegraphs outside the boundaries be regulated by
this Commission. They need not take active management, but they could provide regulations which would
have the force and effect of federal laws governing the various bodies. I do hope that in this matter there will
be a division taken, so that those who are inclined to overweight the Federation with minor matters may vote 50
for it, and those who are inclined to leave to the Federation clearly-defined national interests, may give their
votes in that direction. I hope a division will be taken which will test this and many other matters. I have
given notice of similar amendments, but I shall not persevere with them if Mr. Holder's amendment is lost.
Mr. DEAKIN: As I understand the remarks of my hon. friend Mr. Carruthers, he admits the wisdom
of transferring the telegraph service to the Federal Government, but contests the wisdom of handing 55
over the post offices. Do I understand the hon. member's position correctly?

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Mr. CARRUTHERS: No. My hon. friend Mr. Barton pointed out that with regard to telegraphs it
was, not wise to let these lines be under the control of the various States, and I answered him by
pointing out that with regard to postal business he was prepared to let the railways which carried the
mails be under the control of the various States.
And 5
Mr. DEAKIN: Within or without State boundaries. How can it be said that South Australia is more
competent to administer the postal affairs of its Northern Territory than they would be administered from a
central capital? Or how can it be said that the European mails for the extreme west country of New South
Wales could not be better dealt with by the use of railways and means of transport through South Australia?
Looking at the postal and telegraphic business of the continent of Australia from a purely business 10
aspect, from the practical side of affairs, it appears to me that we are more likely to have satisfactory
and complete communication if it be regarded as one whole and worked from the most convenient
centres, without regard to State limitations. I say in answer to Mr. Holder that his illustration in
regard to Western Australia proves nothing if we may rely upon American experience. If there has
been one great federal success it has been the American post office, and if there is one regret in their 15
politics it is that the American telegraphic service is not also in the hands of the Government. The
telegraphic service is in private hands, and the regret is widespread. I can say, from a short experience of
some of the least settled and most distant territories of the West of the United States, that the postal
communication there is much more complete than I have been accustomed to find in outlying districts of
these colonies under their present State management. The National Government at Washington, 3,000 miles 20
away, separated by a whole continent, has proved itself more liberal in its treatment of the people of the Far
West than have the Governments of Australia proved themselves in regard to our back block settlements. In
America the post office has been a great administrative, financial, and popular success; and any man who
would propose to-day to hand that service over to other than to State administration would find that his
proposition was short-lived. We may have greater difficulties to surmount than they have, but there is no 25
reason why the Commonwealth of Australia should not also achieve a conspicuous success in this direction.
The arguments used by my hon. friend Mr. Barton with regard to the difficulties arising from a divided
control of the telegraph wires appear to be conclusive. It would be almost impossible to make arrangements
as perfect and as economical for either postal or telegraphic services [start page 771] within Australia if you
retain State boundaries, and it will certainly be more difficult to make arrangements for the extra-Australian 30
services if you are called upon to consider State claims and demands, instead of only considering the real
practical wants of the localities immediately concerned. It appears to me a desirable thing as a matter of
practical business to transfer both of the services to which I have alluded to the Federal Government. We
shall not place too great a burden on the federal authority, and the whole population will be better
served than they now are or than remote districts can be by State authority. Placing the means of 35
communication in the hands of the Federal Government will probably permit of that universal
reduction of postage and cable rates which is one of the first demands of the commercial interest
throughout Australia. The experience of our own colony is that the present cable rates are almost
prohibitive. but by a satisfactory combination of the cable and postal services, with unity of
administration, we shall be able to secure an immediate reduction in those charges, as well as in postal 40
rates, and give the people of Australia better services than those they now possess.
Sir PHILIP FYSH: Every postal conference that has been held for years past has tendered a report
suggesting that the postal and telegraphic services should be federated. Year by year conferences are
necessary in order to keep ourselves in touch with what is going on and to keep pace with development. The
clause of the 1891 Bill, transferring the control of post and telegraph offices, was largely for the reason 45
that the losses amounting to 200,000 per annum, incurred by some States were for the benefit of the
whole, and therefore should be of federal concern. That state of accounts has since altered, and South
Australia, in 1891 the chief loser, and Tasmania, also an important loser, have both since secured profit
in these departments, but much services as posts and telegraphs have by means of the postal
conferences of postmasters annually, and by their reports, sought to establish uniformity, and tended 50
strongly to support this federal purpose. The cost of cable subsidies has already been divided
intercolonially, and the completion of federal services will tend to support the "United Australia"
purpose of the people. Nothing has a greater tendency to perfect your union than one postage stamp
for Australasia. Uniform postal rate is also desirable; whereas in Tasmania, in a given radius from the
General Post Office, the rate is one penny, in South Australia and Victoria twopence is uniform, whether 55
across the street or to the end of their territorial limit.
And

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Mr. WISE: I have the concurrence of the gentleman in charge of the Bill for doing this. I propose to omit
all the words after the word "Postal," and to make the clause read as follows:
Postal, telegraph, telephone, and other like services within and beyond the Commonwealth.
If I move that it will be open to the hon. gentleman moving the present amendment to strike out the words
"within and." It is necessary as a matter of drafting, to carry out this to meet the views of Mr. Holder, who 5
moved the present amendment. Unless there are express words implying that this is outside the
Commonwealth they will not know its limits. If we want the Commonwealth to have power to deal with
cables, there must be express power to enable them to go beyond the Commonwealth.
Mr. HIGGINS: What are you intending to cover by the words "other like services?" Do you mean the
railways? 10
Mr. WISE: There might be a long distance telephone or phonograph. Mr. Peacock's laugh might then be
heard in London. (Laughter.)
Sir GEORGE TURNER: We have his laugh here. Do not put him further on.
Mr. WISE: If Mr. Holder moves to omit the words "within and" it will come to the same thing. I am sure
these words are necessary to enable Mr. Holder to carry out his object. 15
Mr. SYMON: It is a little complicating the present issue to introduce telephones. Some of us would be
rather caught by the insertion of these words in deciding upon the amendment by Mr. Holder. The
introduction of telephones raises a distinct issue. It would be better to put them separately.
Dr. COCKBURN: On behalf of my hon. colleague Mr. Holder, I will ask leave to withdraw this
amendment, so long as it is not intended in any way to obstruct it. 20
Amendment temporarily withdrawn.
Mr. WISE: Then I move:
To insert after "telegraphic," "telephonic and other like services."
I will not discuss this. Telephones are worked with telegraphs in every colony, and it would be a great
inconvenience to separate them. 25
Mr. SYMON: I should like to hear the views of Dr. Cockburn on this question, as some of us are not
familiar enough with the subject to say whether there can be a detachment of the services.
Mr. DEAKIN: They must go together. Mr. WISE: They use the same wires. Dr. COCKBURN: I do not
think it is possible to separate them.
Amendment agreed to. 30
Mr. WISE: I now move to add to the sub-section:
Within and beyond the Commonwealth.
Sir GEORGE TURNER: What is the object? Would it not apply to many other powers that we are to
give.
Mr. SYMON: I think these words are scarcely required. There could be nothing more comprehensive than 35
the words we have just adopted.

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The CHAIRMAN: I will put Mr. Holder's amendment first.
Mr. REID: This attempt to separate the post and telegraph services will, I think, be disastrous. It is
impossible to work these two services by, two different departments. How is it possible to put on the
Commonwealth the necessity of having a department to deal with one part only of the business.
[start page 774] 5
Instead of simplifying the post and telegraph services of the colonies it will only complicate them. One
of the strongest reasons for including the post and telegraph services within the Commonwealth is that,
instead of having seven Ministerial Post and Telegraph Departments and seven staffs for the
Australian colonies, the whole business can be managed under one federal head. If there is an
argument in favor of federalising any service, it applies more strongly to this than to any other I can 10
think of. There are certain side complications which will entirely disappear under federal
administration. When one speaks of the colony of New South Wales having a loss on the postal service, and
another colony having a gain, that simply arises from separate administrations and separate laws; laws under
which, in New South Wales, we allow newspapers to go free, and laws under which in other colonies they do
not; laws under which, in New South Wales, we allow one penny stamp over a fifteen - mile radius in all 15
populous localities throughout the colony, and laws in other colonies under which they charge twopence to
send a letter from one side of the street to another. Under a federal administration the charges will be
regulated on a uniform basis, and all these inequalities will disappear. Why are we putting in various clauses
to prevent unequal intercourse between the colonies in matters of trade if we do not put in these clauses
which will prevent similar evils in connection with the posts and telegraphs of Australia? You could carry on 20
most offensive State wars with these post and telegraph rates. It is essentially a matter of common concern
which could be more economically administered by the Commonwealth. Although I always attach the
greatest importance to the views of Mr. Carruthers, and we are generally found acting together, I must say on
this occasion I feel it would be impossible to carry out the ocean transit of mails with one department, and
local affairs with another. From my point of view there should be only one Post and Telegraph 25
Department for Australia, only one executive head for Australia, and I believe that under that system
the interests of the people of Australia will be better and more economically served.
Recognition must be given to His Honour CALLINAN J that His Honour also referred to this
subsection 51(v) and seemed to me to express the intentions of the Framers of the Constitution in
that they did have a foresight in the future development of telephony, etc. 30
769 I elsewhere explain why there are other strong reasons for the construction of s 51(xviii) of the Constitution
which I think correct. At this point it is sufficient to say that the submission of the Australian Workers' Union is also
partly correct:
"[I]t is one thing to say that terms such as 'patents of inventions and designs', 'postal, telegraphic, 35
telephonic, and other like services', 'corporations', or 'marriage' should be construed with all the
generality that their words admit, lest the Constitution become some sort of nineteenth century
fossilized relic. It is quite another, however, to say that the most general connection between a head of
power and a law will be deemed sufficient."
The submission is correct in singling out some powers for an obviously more expansive operation than others. 40
Patents and inventions are powers in point. So too is defence. In its terms, that is in text, placitum (v) dealing
with "postal, telegraphic, telephonic, and other like services" is a very far-reaching power without any need for
judicial addition to it. I am however unable to accept that the Constitution is in danger of becoming a fossilized
relic of the nineteenth century. Intimations of that danger have accompanied and been falsified by every one of
the many failed referenda conducted since federation, as well as, among other things, cooperation between the 45
Commonwealth and the States when power is lacking but action truly necessary
[945]
.
END QUOTE CALLINAN J
The Framers of the Constitution time and again pointed out the desired not to have some
inflexible constitution as that of the USA but desired to create one that was alive and living and
could be amended by the people using Section 128 as to reflect their contemporary views. As 50
such, it is not up to the High Court of Australia to interpret the Constitution with its own
contemporary views but to interpret it within the confines of the Constitution that is as to the

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intentions of the Framers of the Constitution. If then the language used in the Constitution would
not allow for the legislative powers the Commonwealth of Australia desired then it can always
embark upon a section 128 referendum. The fact that so many referendums were lost if anything
proves that the peoples power to VETO any grab for further legislative power must be
recognised. It is not then for this High Court of Australia, as His Honour CALLINAN J so 5
bravely sets out, to go against the tide of the wishes of the People and by this supplant their
constitutional powers/rights with that of what is desired by the unelected judiciary. In particular
where it is not uncommon that judges are political appointments as to seek to influence the
Courts future decisions the Court cannot afford to appear to be bipartisan to the Federal
government and totally disregard the application and recognition of the very people about whom 10
it is about and so their CIVIL RIGHTS to enter in a contract as they desire and entitled to
within the State jurisdiction. The powers provided to the Commonwealth of Australia was not for
the purpose to interfere in the daily lives of every person but to deal with matters which could be
federally justified. It is not an issue to the federation if a person makes a work contract (a civil
contract) with employer and say upon this worker having commenced to work the business is 15
sold and then the new owner incorporate the business and somehow the worker has his civil
rights and his civil contract interfered with and so his future employment entitlements by
some busybody federal government.

It is the very issue of retaining the States identities that a person can decide where to reside. 20
Some States have better weather conditions, but other states provide better facilities and/or better
working conditions. It would therefore be absurd if for example a worker having commenced
employment in a certain state under its State insurance provisions then find that without any
changes made on his part the employer can manipulate working conditions by using corporation
provisions to negatively influence the entitlements of the worker. 25

One may then ask if anyone who does outsourced work for a corporation then also might be
subject to the powers of the Commonwealth of Australia under the corporation laws.
Anyone turning on a tap might be forced to comply with corporation laws that the
Commonwealth of Australia might put in place as to how people using the water corporation 30
facilities can use it and under what conditions. After all, if the Commonwealth of Australia
would be able to set wages, terms and conditions then it could likewise do so in regard of
anything else. Bus/tram/train companies could be forced to operate under Commonwealth law,
regardless that they might operate only within a certain area of a large city.
Indeed, His Honour CALLINAN J very much appeared to be extremely concerned about the 35
unlimited powers that the Commonwealth of Australia could use via the corporation laws.
The Commonwealth could in fact erode the entire State system. It could legislate that the
Road Corporations of a State no longer issue license plates as only the Commonwealth would do
so. It could use its corporation powers to abolish any State taxes. It could use its corporation
powers to interfere totally (for so far it not already does) with education, health, etc. 40
There simply would be no limit to it.

While the Commonwealth of Australia has no constitutional powers over the Federal judiciary, I
for one could see my way through it to use the corporation powers to run State Courts down the
ground, so to say, as to manipulate the corporations powers to influence State Courts operations. 45
In fact, it even could use the corporations power to interfere with the structure and conduct of the
High Court of Australia, as while it might be created within Chapter III of the Constitution, once
the High Court of Australia accept that the corporation power is unlimited then it neither can
avail itself to being protected as the corporation powers, by its own judgment, is unlimited.
50

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It should be clear that the corporation powers were granted as was already provided for in regard
of banking. If the corporation powers would allow the Commonwealth of Australia to interfere
with every facet of life either directly or indirectly related to a corporation then why should not
the same apply to banking one may ask. Then the Commonwealth of Australia could legislate to
anyone who is using a bank. So what the Constitution does not allow legislation as to State banks 5
operating within a State, the Commonwealth of Australia could simply use the provisions of
(xii) currency, coinage, and legal tender, after all rather then merely having a power house
covering about 85% of businesses, the commonwealth of Australia could dictate 100% of what
every one does in the Federation by using this power to legislate what a person can or cant eat.
What a person can or cannot smoke, drink, wear, etc. It could be used to dictate how much 10
money any person is entitled to earn. After all, if you are going to give the liberty of power
within Subsection 51(xx) then Subsection 51(xii) would be far more powerful. It is not bound by
corporations registering as it has no bounds at all. Everything turns on money in the business
world and so also in daily life for those who are retired and as such it is the perfect way to
control the general population to the extreme in a tyrannical condition. This, is in my view the 15
absolute absurdity that can be implemented as result of the joint judgment handed down.
In this book, I will be entering in the constitutional validity of the Court itself, as this too
becomes an issue as to ascertain if the judgments are constitutionally valid in the first place or
not worth the paper it is written upon. Corporations require registration for RECOGNITION
and not how they operate with their workers. Any person is entitled to his/her civil rights to 20
enter into a contract to his/her desire and not being forced into some kind of contract that the
Federal Government desires to dictate. Indeed, lacking legislative powers as to religious the
Commonwealth of Australia (Parliament and/or Government) cannot dictate anything about
religious public holidays one way or another and neither about penalty rates applicable to
religious holidays. 25
Again, a shame that none of the judges took any consideration as to the issue that employment of
a worker entered into was on the basis of a State contract within the civil rights of a person
within State laws where as corporations powers was dealing with registration of corporations
legislative powers provided to the Commonwealth of Australia and nothing to do with civil
rights contracts. Indeed, as the joint reasons pointed out; 30
QUOTE
Such little debate about the corporations power as there was at the 1891 Convention focused upon whether that
power should be extended, like the banking power, to the registration or incorporation of companies. Sir Samuel
Griffith's response
[141]
was:
"What is important ... is that there should be a uniform law for the recognition of corporations. 35
Some states might require an elaborate form, the payment of heavy fees, and certain guarantees as to
the stability of members, while another state might not think it worth its while to take so much trouble,
having regard to its different circumstances. I think the states may be trusted to stipulate how they will
incorporate companies, although we ought to have some general law in regard to their
recognition." 40
END QUOTE
As this reveals, the concern then being addressed was very narrow.
Again;
is that there should be a uniform law for the recognition of corporations.
45
With my extensive research in the Constitution Convention Debates this was all along my
perception, that it was only dealing with registration (for the recognition of corporations) upon
a uniform basis as to avoid different State conditions but nothing to do with attempting to
interfere with the civil rights of a person to enter in a work contract with an employer. Also, the
drafting committee would often deal with matters decided in smaller committees and as such not 50
subject to major debates on record.

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where the contract was made. 5
Mr. SYMON: No doubt. There is another point I wish the hon. member to consider. You are not going to
interfere with the laws of the States dealing with contracts. If the Federal Parliament deals with disputes it
will be hampered by the varying laws relating to master and servant which may exist in the different colonies.
If an industrial dispute in several colonies were treated as one it could not be dealt with as an ordinary
dispute, but the laws of each separate State would have to be taken into consideration. Now that would be, I 10
think-so it strikes my mind at present-a difficulty hard to be overcome. At any rate, what I am dealing with is
rather the general proposition that is put in this amendment, not the language of it, but the general proposition,
and if you are to give the Federal Parliament power to deal, as my honorable friend puts it, with industrial
disputes -I will leave out the subsequent verbiage-I for one cannot see where the limit of its operation will
come in. You give it a weapon which might be used according to the dominant majority in the Federal 15
Parliament for the moment in a way we would not like. You are intensifying the possibilities of bitterness-that
is to say, if they avail themselves of this power-without seeing the benefit that is likely to arise. I desire to
emphasise the [start page 790] observation made by Mr. Deakin. It would be impossible to say at what time
the overflow into the adjoining State begins and ends. If the Federal Parliament is to decide-
And 20
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 seems to me to be an admission of the 25
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. I claim Mr. Deakin's emphatic indorsement of that principle, and I claim his vote,
because his vote if he goes with me will affirm the principle. It surely must be better for the employees that
their disputes should be settled by courts which know all the circumstances, which understand the condition 30
of things best, than that they should be settled by possibly a distant tribunal which is ignorant of the
environment and particular conditions affecting any industry in any one of the states. We have heard to-day
something about the fixing of a rate of wage by the federal authority. That would be an absolute
And 35
be an absolute impossibility in the different states.
And
Mr. BARTON: If they arise in a particular State they must be determined by the laws of the place 40

Mr. HIGGINS.-I did not say that it took place under this clause, and the honorable member is quite right in 45
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.

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It must be clear that the motive of the IR WorkChoices legislation had a motive that in itself
makes it invalid. The principle object is to rob the ordinary worker of their bargaining power to
enter into a Contract based on State provisions.
As such, it is not just to rob the States of their rightful legislative powers but more over is in 5
particular to rob the people of their CIVIL RIGHTS.
But that has been done before and so permitted ongoing by the very High Court of Australia that
was created as to be a GUARDIAN OF THE CONSTITUTION.

We can for example look at the issue of CITIZENSHIP. 10

Mr. HIGGINS.-You give the Federal Parliament power to naturalize.
Mr. BARTON.-Yes; and in doing that we give them power to make persons subjects of the British 15
Empire. Have we not done enough? We allow them to naturalize aliens. That is a power which, with the
consent of the Imperial authority, has been carried into legislation by the various colonies, and, of
course, we cannot do less for the Commonwealth than we have done for the colonies.

This is not citizenship as exist in the USA or some other countries, as the Framers of the 20
Constitution made clear they did not desire to follow the example of the USA and rather created
their own system.
We have the Australia Citizenship Act 1948, but I ask on what constitutional basis is this
legislation enacted?
QUOTE JOINT JUDGMENT 25
54 Underlying all these arguments there was a theme, much discussed in the authorities on the corporations
power, that there is a need to confine its operation because of its potential effect upon the (concurrent)
legislative authority of the States. The Constitution distinguishes in s 107 and s 109 between legislative
powers exclusively vested in the Parliament of the Commonwealth and inconsistency between federal and
State laws made in exercise of concurrent powers. Section 107 does not vest exclusive powers in the State 30
legislatures. It will be necessary also to return to that topic
[17]
. It is immediately useful to bear in mind what
Windeyer J said in Victoria v The Commonwealth ("the Payroll Tax Case")
[18]
:
"The Colonies which in 1901 became States in the new Commonwealth were not before then sovereign
bodies in any strict legal sense; and certainly the Constitution did not make them so. They were self-
governing colonies which, when the Commonwealth came into existence as a new Dominion of the Crown, 35
lost some of their former powers and gained no new powers. They became components of a federation, the
Commonwealth of Australia. It became a nation. Its nationhood was in the course of time to be consolidated
in war, by economic and commercial integration, by the unifying influence of federal law, by the decline of
dependence upon British naval and military power and by a recognition and acceptance of external interests
and obligations. With these developments the position of the Commonwealth, the federal government, has 40
waxed; and that of the States has waned.
END QUOTE JOINT JUDGMENT
QUOTE JOINT JUDGMENT
[18] (1971) 122 CLR 353 at 395-396.
END QUOTE JOINT JUDGMENT 45

Well, lets see what the Framers of the Constitution stated that was applicable, and that the
Commonwealth of Australia is not a dominion is one of the issues they raised.

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It also means that the Westminster Act 1931 (UK) is ULTRA VIRES for so far it purports to
deal with the Commonwealth of Australia as being a DOMINION in that it is seeking to use a
backdoor manner to give the Commonwealth of Australia some DOMINION status which the
constitution did not provide for. Indeed, neither did it provide for the Commonwealth of
Australia to be able to increase its own powers by a request to the British parliament sidelining 5
by this the States and/or Section 128 of the Constitution. As such for so far the Westminster Act
1931 referred to the Commonwealth of Australia it is and remains ULTRA VIRES and likewise
so any request or purported request made by the Commonwealth of Australia, and so also the
Australia Act 1986 (UK) and obviously also so the Australia Act (Cth). Likewise so the British
National Act 1948 that purported that Australians are foreigners, as it was beyond the powers of 10
the British Parliament to legislate as such as it was by this seeking to amend the Constitution by
way of backdoor manner by robbing Australians of their constitutional right to be subjects of
the British Crown.. Now consider this; In my 28 October 2002 correspondence, to Mr Justice
Michael Kirby, I contested the validity of the Australian Act, and on 17 June 2003 His Honour
in the MIMA case then made clear the Australian Act had no legal enforcement against the 15
Constitution.
Shaw v MI MA B99/2002 (17 June 2003)
KIRBY J: I am afraid I have to tell you that is where you lost me because, as far as I
am concerned, I do not see how the Australia Act 1986, an act either of the United
Kingdom Parliament or of the Australian Parliament, has the slightest power to alter 20
the Australian Constitution, that power belonging to the people as electors.
http://www.austlii.edu.au/au/other/hca/transcripts/2002/B99/1.html

National Australasian Convention) (Chapter 33 of the CD) 25
Mr. BARTON.-
by the Parliament of the United Kingdom. That will be true in one sense, but not true in effect, because 30
that the highest court in Australia should be left as the guardian of the expressions of the people, and the sole
35
Mr. MCMILLAN: I do not quite follow Mr. Isaacs in his logic. It seems to me it is a very serious matter
to attempt to interfere with the whole machinery of the constitutional Government,
40
. I take it that one of the first principles of the Constitution is that we present it to the several colonies,
not as a complete constitution, but as one which they can make complete; not as a constitution
necessarily adapted to their needs and desires, but one which they can themselves adapt to those needs 45
and desires.

The Australia Act 1986 would alter a constitutional Parliament and a constitutional
government into a Parliament that now is above the Constitution and it could merely repeal
Section 71 and Section 128 together and there would then be no court to argue about if it is 50
unconstitutional or not.
As the Framers of the Constitution made clear there are embedded principles and the High
Court of Australia cannot play Pontius Pilatus and seek to wash its hands of the matter where it

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has the responsibility to interpret the constitution as to the intentions of the Framers of the
Constitution and not implant their own views, politically or not, into it.
712 Because of his prominent, indeed perhaps decisive role in the establishment of the federation, the words
of Mr Deakin, who was by then the Leader of the Opposition are relevant
[826]
: 5
"The Attorney-General last night passed with a gay bound over all those gulfs surrounding the real question
at issue, which is the distribution of powers between the Federal and local Governments.
[826] Australia, House of Representatives, Parliamentary Debates (Hansard), 19 October 1910 at 4806-4807 10
(emphasis added).

The meaning of the wording gay bound would not particularly properly interpreted if we were
to use the current CONTEMPORARY meaning of gay now listed as having the first meaning 15
homosexual , second meaning relates to a group of homosexuals and the third meaning listed
in COLLINS dictionary ISBN 0 00 470144-5 is given as 2a carefree and merry gay temperature
b. brightly coloured; brilliant; a gay lifec. given to pleasure, esp. in social entertainment: a gay
life C13; from Old French gai
20
Websters New American directory 1959 list;
Gay adj. Lively and merry

Now if the High Court of Australia was faced with, say, a provision in the Constitution that Gay
people do not require to pay taxes using the contemporary interpretation it might purport that 25
homosexuals do not require to pay taxes. Where even within less then 50 year time span a word
can dramatically change in application to have a meaning not at all known or contemplated at the
time and neither known in dictionary terms, then there is a clear danger for judges to try to
interpret the language used by the Framers of the Constitution disregarding their precise debates
about it all. It is not good enough to just quote what was stated as to reference of corporations, as 30
there was la lot more stated albeit not in regard of Subsection 51(xx) directly but about the
conduct of corporations going bust and causing people to end up in poverty and having to rely
upon hand outs by relatives, etc. indeed it was Mr. Howe who since 1891 and so persisted in
1897 and then in 1898 finally succeeded to have the provisions now known as Subsection
51(xxiii) invalid and age pensions included in the Constitution. It was however recognised that 35
the States would control their own superannuation schemes and the Commonwealth of Australia
would have to determine for itself what superannuation scheme it would provide, if any, for the
former State employees. As such, it was recognised that the Commonwealth of Australia had
only power over its own civil servants regarding superannuation entitlements had no legislative
powers to dictate to anyone else what superannuation they may have in their workplace. 40
QUOTE

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831 Mason CJ, Deane and Gaudron JJ said in Re State Public Services Federation; Ex parte Attorney-General
(WA)
[1067]
:
"It is sometimes said that a 'paper dispute' must be a 'genuine dispute'. That means no more than that
written demands must be genuine demands
[1068]
. If not if, for example, they are part of a hoax
or if they are intended to dress up a purely intrastate dispute
[1069]
their rejection will not 5
involve any disagreement and, thus, will not result in a dispute at all.
To ascertain whether demands are 'genuine demands', it is sometimes asked whether the demands are
seriously advanced
[1070]
or, in the case of demands by or on behalf of employees, whether they are
advanced with a view to 'obtaining improved terms and conditions ... within the framework of the
claims made'
[1071]
. This last formulation is one that takes account of the doctrine of ambit
[1072]
and 10
allows that a demand may be genuine notwithstanding that neither the union making it nor its
members are 'intent on obtaining forthwith every item which is mentioned in the log of claims or the
particular terms and conditions of employment in the form and in the amounts in which they are
expressed in the log'
[1073]
.
Given the doctrine of ambit and given that there is nothing inherently artificial about written demands, 15
or 'paper disputes', it will not often be the case that a written demand with respect to the wages or
conditions of employees will be other than a genuine demand." (emphasis added)
832 In Re Australian Education Union; Ex parte Victoria
[1074]
, in which the Court held that the States, as
employers, could be subject to laws made under s 51(xxxv), Mason CJ, Brennan, Deane, Toohey, Gaudron and
McHugh JJ said
[1075]
: 20
"The notion that interstate employers must have a common business or operate in a particular
industry as a pre-condition of the existence of interstate industrial dispute has never been
accepted. Although statements have been made which assert that the nexus or unifying factor
which combines in a single industrial dispute a number of demands made on behalf of a number
of employees is 'the industry' itself
[1076]
, the nexus may also be found in the calling or vocation 25
in which the participants are engaged. ... And, in the final analysis, the adoption of the popular
meaning of 'industrial dispute' and the rejection of the view that there must be a dispute in an
industry, is fatal to the contention that the necessary nexus or unifying factor must be found in
the industry."
END QUOTE 30

It should be noted that the Framers of the Constitution did specifically state it had to be
common as simular disputes in different States regarding the same employer may not be
regarded as interstate in the issues are different as elsewhere set out in this document.
35
Careful attention ought to be given to the wording;
Another log of claims was also served with a demand for superannuation only, (see RX /
206.3). This was done in order to create a dispute and thereby to obtain award
provision for superannuation.
40
Again;
This was done in order to create a dispute
QUOTE

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FEDERAL AWARD LOG OF CLAIMS 1989, C NO. 36649 of 1989, RX / 206.1

SN: In 1989 the ANF served its 1983 log of claims for a Federal award upon employers in SA and WA. This
was done to include, or rope-in new employers to existing awards or creating an award if one did not
previously exist. Another log of claims was also served with a demand for superannuation only, (see RX / 5
206.3). This was done in order to create a dispute and thereby to obtain award provision for superannuation.
(A demand omitted in 1983). (A related file is RX / 81.1 which contains the log, ambit and responses to the
earlier, 1983 service of the Federal log. In addition, the RX / 81.1 series is supplemented by local area
subdivisions, L1 - L9, for the States and Territories. This series was created following the service of the 1983
Federal log, and the development of that case to the award making stage. 10
END QUOTE
See also Chapter 043B in order to create a dispute
As I view it, what we have here is a perfect example how a Trade Union manipulated its position
as to cause a dispute to be able then to use superannuation as an issue.
For the record, the content of the quoted material by the union was obtained when purchasing a 15
computer that was faulty and having it subsequently repaired. Likewise, I obtained content of
computers having belonged to lawyers, where I purchased their old computers. As such the
ownership of the material was lawfully obtained.
On 17 March 2007 I published;
20
INSPECTOR-RIKATI on the battle SCHOREL-HLAVKA v BLACKSHIRTS
For the quest of JUSTICE, in different ways. Book on DVD.
ISBN 978-0-9580569-4-6 was ISBN 0-9580569-4-3

Chapter 044 (also Chapter 044 Carter about Family Court in this book) of this book includes 25
the following;
QUOTE
* Gary, what is this about Alice Carter?

**#** INSPECTOR-RIKATI, that was a person who made an assessment about how she 30
experienced the Family Court of Australia operating!
Alice Carter whom also acted as legal adviser for the Northern Territory in her report about a
visit to the Family Court at Melbourne remarked;

"unfortunately, much of the proceedings I witnessed were repetitive, and general 35
disorganisation,...."

Page 22 27-8-1997

"Further more the court was disorganised as many files were missing and cases were 40
adjourned early as many counsel failed to turn up."

"The counsels and their clients also presented themselves well dressed and I could see
that anyone who was not dressed suitably would be extremely obvious. I felt that the
emphasis on looking acceptable could easily disadvantage some people. The whole 45

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attitude of the court to parties was rather more authoritarian then supportive,....."

"Moreover, I felt that the judges were inclined to be slightly patronising and
pedantic."
5
"... and the judge's demands that she speak louder reinforced my observations on the
authoritarian, patronising attitudes of the judges."

"I am now able to understand the general public's fear of going to court and facing judges;
I, too, was overawed by the excessive formality and suprised by the appearance, at least of 10
the judges' authoritarian and patronising attitude towards others in the court room."

It ought to be noted that Alice Carter is a lawyer!

* That appears not to be too complimentary as to judges! 15

**#** Well, if she found it to be like that then good she did place it on record.
END QUOTE

To a person like me, in particularly publishing books about legal issues, such computers can be a 20
treasure trove not just to expose what they are doing and or saying but also to be able to ascertain
how they operate, and my books do also go into that in further details.

Back to the superannuation issue, Mr Howe and other Delegates did not confuse
superannuation with pensions, and neither pursued the line to put superannuation within 25
Commonwealth legislative powers other then for its own employees and in fact made clear that
persons in high places (Departmental officers, judges, etc) could not contribute to a
superannuation scheme. As such I deem it unconstitutional for judges of federal Courts to be
involved with such kind of superannuation scheme, as it also may place in question their position
and the likelihood of judicial bias. 30
Mr. HIGGINS.-A number of laws have been held to be unconstitutional in America because of their
reasons and because of their motives. There was a funny case in San Francisco, where a law was passed by
the state that every prisoner, within one hour of his coming into the prison, was to have his hair cut within 35
one inch of his head. That looked very harmless, but a Chinaman brought an action to have it declared
unconstitutional, and it turned out that the law was actually passed by the Legislature for the express purpose
of persecuting Chinamen.
Mr. BARTON.-That took place under the next clause in this Bill, which is a similar enactment.
40
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. All I want is, that there
should be no imposition of any observance because of its being religious.

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Again;
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.

For example, the Parliament of Westminster passed the British Nationality Act 1948 but as the 5
Commonwealth of Australia Act 1900 (UK) section 51(xix) allows for naturalization of aliens
by the Commonwealth of Australia to become British nationals then clearly for so far this
British Nationality Act 1948 conflicts with the Constitution it is not relevant. Hence, it has no
bearing upon Australians as they are and remain to be British nationals. To accept otherwise
would mean the British Parliament by the British Nationality Act 1948 effectively amended the 10
Constitution circumventing Section 128 referendum.

Mr. DEAKIN: 15
When the question of a second chamber comes to be considered, they will assuredly not be satisfied to
possess less freedom. More than this. In framing a federal constitution, we should set out with the explicit
claim to possess and exercise all the rights and privileges of citizens of the British empire to the same
extent that they are possessed and exercised by our fellow-countrymen in Great Britain itself.
20
It must be kept in mind that Edmund Barton was born in NSW!

Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that we are all alike 25
subjects of the British Crown.
And
Dr. QUICK.-If we are to have a citizenship of the Commonwealth higher, more comprehensive, and nobler
than that of the states, I would ask why is it not implanted in the Constitution? Mr. Barton was not present
when I made my remarks in proposing the clause. I then-anticipated the point he has raised as to the position 30
we occupy as subjects of the British Empire. I took occasion to indicate that in creating a federal
citizenship, and in defining the qualifications of that federal citizenship, we were not in any way
interfering with our position as subjects of the British Empire. It would be beyond the scope of the
Constitution to do that. We might be citizens of a city, citizens of a colony, or citizens of a
Commonwealth, but we would still be, subjects of the Queen. 35

Mr. SYMON.-
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 40
I should feel that it was a very serious blot on the Constitution, and a very strong reason why it should not be
accepted. It is not a lawyers' question; it is a 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 not prepared to trust the 45
Federal Parliament or anybody to take away that which is a leading inducement for joining the Union.

No amount of conventions or other agreements that may have been entered into since federation
could in any shape or form alter the fact that the Constitution contained in the Commonwealth of
Australia Constitution Act 1900 (UK) has the principle embedded that Australians are and 50
remain to be subjects of the British Crown.

Therefore for citizenship issues see also my book published on 30 September 2003;

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ISBN 978-0-9580569-6-0 was ISBN 0-9580569-6-X

QUOTE 16-3-2005 correspondence to Malcolm Turnbull 5
Hansard 1-3-1898
[start page 1683]
Mr. SYMON.-It is not a law if it is ultra vires.

Mr. GORDON.-It would be law by acquiescence. It would remain a law until it was attacked. 10
And
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. Under the clause, as I have amended it, it
will not prevent the plea of ultra vires being raised where it is accompanied with the plea of a conflict of law. 15
If there is a state law and a Commonwealth law on the same subject, every citizen is entitled to know which
be should obey. If he joins a plea of ultra vires with a plea of conflict of law, that ought to be heard.

We have therefore that if one were to accept the High Court of Australia decision in Sue v Hill 20
that since 1986 the Constitution was substituted by an identical worded Constitution contained in
the Australia Act 1986 (UK and/or Cth) then effectively the High Court of Australia ruled itself
to be a KANGAROO COURT in that it was not operating within Chapter III of the
Constitution contained in the Commonwealth of Australia Constitution Act 1900 (UK) but
under a Constitution that was never accepted by the people of Australia and indeed 25
constitutionally could not have been.

As my already published books have set out extensively, the Constitution contained in the
Commonwealth of Australia Constitution Act 1900 (UK) did not permit any notion of
republicanism or for that turning the Commonwealth of Australia into some republic. 30

There are people who argue about the title Prime Minister not being mentioned in the
constitution then his position is unconstitutional, this I do not agree with. The Prime minister is a
title the governor/governor-General bestowed upon the political leader of the Government. It
does not elevate the position above other ministers of the Crown as constitutionally this cannot 35
be done, albeit by convention this is done unconstitutionally.
The Framers of the Constitution throughout their debates did contemplate that there would be a
Prime minister in the newly to be formed Commonwealth of Australia, but nothing in their
debates and neither in the Constitution sought to elevate a Minister with the title Prime minister
to have a special constitutional position as it was all along taken that the Prime Minister as like 40
any other minister would be a servant engaged by the Queen to run a Department.
While the Prime minister appears to have a slash fund of about 400 million dollars to spend as he
desire, this I hold is unconstitutional. Likewise the Ministers robbing Consolidated Revenue for
their pay is like a checkout chick (register attendance) putting their hands in the till to reward
themselves with money they deem they earned rather then to await pay from the employer. 45

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Indeed, if any person were to come before the Courts the person more then likely would be found
GUILTY of deception (stealing) yet the Constitution providing that the Queen shall be paid out
of the consolidation Revenue for the Ministers must make it clear that their annual salary and
their superannuation is a matter between the British Monarch Queen Elizabeth II and the
Minister and nothing to do with the taxpayers. The fact that the Federal Government has 5
appointed a Remuneration Tribunal does not circumvent constitutional constrains. If this was
deemed to be permissible then we might as well, so to say, throw the Constitution out of the
window as Members of Parliament can circumvent then constitutional prohibitions by legislating
whatever they want.
As set out in my previously published books, the Queen has at times appointed a former 10
Governor-General to be a Prime Minister (A clear example is the Prime Minister of New Zealand
who admitted during the Constitution Convention Debates having been sacked as Governor-
General but then Her Majesty Victoria still appointed him subsequently as he claimed Her
Majesty did not approve of his sacking) and as such it is absurd and indeed unconstitutional and
illegal to provide payments for a former Governor-General while he can still serve the Queen in 15
other positions.
It is irrelevant what Prime Minister Billy Hughes may have stated in Parliament in 1919 as there
is and never was any constitutional powers for a Prime Minister to somehow declare the
Commonwealth of Australia to be independent. Indeed, a Prime Minister has not even any
powers to declare or authorise a war, as this would be also against Section 24AA of the Crimes 20
Act of TREACHERY as only the Governor-General has the prerogative powers to DECLARE
war or peace and it can only be enacted upon after it has been Gazetted.

In recent days, it was reported that G. W. Bush was making an issue that innocent people are
being killed with their suicide bombing in Iraq. This, more then 4 years after the so called 25
SHOCK & AWE bombardment that killed many innocent people.
Ironically that the worst offender of mass killing by bombing would complain about others to do
so in a minor scale. Any killing is deplorable, and there can be no justification to do it because of
(ILLUSIVE) WEAPONS OF MASS DESTRUCTION or for other reasons.
We have courts to deal with legal disputes, that if unless you approach the High Court of 30
Australia, as I did, to seek within Subsection 75(v) a mandamus/prohibition as then the Court
somehow ignores it constitutional obligation to make a ruling based upon the MERITS of the
case before it by simply railroading the entire case. The fact that the very issues then presented
before the Court were subsequently also pursued by me in the County Court of Victoria and then
the numerous constitutional grounds remained to be UNCHALLENGED may underline that 35
there was an issue to be litigated. As the application before the High Court of Australia had been
amended in accordance to the previous given directions by the Registrar of the Registry, then the
Courts refusal on basis that it did not comply with the Rules of the Court was a total absurdity
and I view a abuse of legal powers to shield the Federal Government from its unconstitutional
conduct to be held legally accountable. 40
To my knowledge, no one, besides my self sought to litigate the constitutional validity of the
armed invasion into the sovereign nation Iraq against the Federal Government. it was not

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relevant to me if there were WEAPONS OF MASS DESTRUCTION or not and if the USA
could prove with delivery receipts that it had provided chemical or other weapons to Iraq, my
issue was that Australian troops could not be allowed to enter the sovereign nation Iraq, also
considering Section 24AA of the Crimes Act (Cth) unless the governor-General first published a
DECLARATION OF WAR in the Gazette. 5
As such, my application within Subsection 75(v) was not political motivated but was one to the
GUARDIAN OF THE CONSTITUTION, as the High Court of Australia purports to be, to
uphold the terms and conditions set out in the Constitution.
Indeed, the framers of the Constitution specifically provided that the Court has to hear such a
case. Well, it didnt and as such I hold that this refusal at the very least contributed to the mass 10
murder of many innocent Iraqis. Likewise the hanging of the late President Saddam Hussein,
while having been held in custody of the so called COALITION OF THE WILLING, is an
utter disgrace. We have that the High Court of Australia no longer seems to hold the Federal
government accountable for it unconstitutional/illegal conduct and we have seen also that even
the Australian Federal Police was using tax-payers monies to pay people in Indonesia to seek to 15
prevent by some means refugees to enter the Commonwealth of Australia. How much this
resulted in the drowning on 19 October 2001 of the 353 deaths, not to forget including 146
children when the SIEV X sank is also an appalling and disgraceful occurrent that will remain
with us.
No one can hold it against the High Court of Australia if it doesnt act because no case is 20
presented before it and so it cannot invoke jurisdiction, but it is another matter if it actually
refuses to invoke jurisdiction where I placed on various occasions matters before the Court to
seek a judicial determination on the MERITS of the cases but was refused this.
We had a Prime Minister, not even validly elected as I proved in court successfully, who
authorise mass murder by being involved in authorising the attack upon the sovereign nation Iraq 25
and yet the High Court of Australia rather then to grab the case with both hands, so to say, as to
be able to make a judicial determination as it should have done as a GUARDIAN OF THE
CONSTITUTION, rather then, in my view, was politically motivated to prevent the Federal
Government to be legally accountable for its deeds..
I did not seek the High Court of Australia to make a political decision and/or a political 30
motivated decision rather relied upon the Framers of the Constitution to support my case that we
have a constitution and we have a constitutional government and the Courts obligation was to
ensure that my case was heard and determined upon legal facts!
I view that more then likely the judges may have contemplated that the issue might just go away
and WEAPONS OF MASS DESTRUCTION might be found to somehow justify the armed 35
murderous invasion but to me the conduct of the judges was appalling and undermining the
credibility of the court as it should never have accepted that innocent people were being
slaughtered merely upon some perceived notion of WEAPONS OF MASS DESTRUCTION
and for this somehow the constitutional limitations were no longer applicable.
It is this same absurd view that seems to surface time and again by judges to hold that somehow 40
the Federal Parliament can suspend civil right when ever the federal government were to hold
there is a WAR.
Well the challenge is upon the judges to prove on LEGAL FACTS where the Framers of the
Constitution provided this, not just imaginary powers, but rather recorded statement in the
Hansard of the Constitution Convention Debates that it was stated specifically by the Framers of 45
the Constitution that the Commonwealth of Australia could use its armed forces or military

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powers against its own citizens and other without the prerogative powers of the Queen, being
delegated through the Governor-General for the Commonwealth of Australia or a Governor of a
State?
My published books set out extensively what the Framers of the Constitution debated and that
included that there was no power for the Commonwealth of Australia to use its forces against 5
citizens of a State and it was up to a State to request assistance in case of domestic violence
(civil war). As such, if the Commonwealth of Australia is specifically prohibited to use its
defence powers to invade any State then it could not be assumed that nevertheless somehow the
Commonwealth of Australia still can act contrary to this, because in 1943 some judges may ill-
conceived have concluded this with a total disregard then to the Hansard records of the 10
Constitution Convention Debates stated intention of the Framers of the Constitution.

Please read first Chapter 077 David Hicks entitled to enter Federal Parliament before
continuing reading further.
Somehow we now are seeing that David Hicks is going to be held in imprisonment in South 15
Australia not upon the issue if the South Australian Government recognise the Military Tribunal
with its kind of litigation system or it being a so called STAR CHAMBER COURT system
outlawed in the States and Commonwealth of Australia, but that the Federal Government
somehow seeks to trample upon States rights and make arrangements that effectively recognise
STAR CHAMBER COURT conduct and convictions obtained by torture as to be part of the 20
Australian legal landscape. And I would, so to say, hold my breath for the High Court of
Australia as the GUARDIAN OF THE CONSTITUTION to take appropriate action as I
understand that with the Pacific Solution it then also allowed the unconstitutional conduct by the
Federal government to flourish and indeed to continue by ill conceived ADMINISTRATIVE
DETENTION, while constitutionally Section 120 prohibits any such kind of conduct. As the 25
Framers of the Constitution made clear it is the Governor-General who invokes prerogative
powers and not some Prime Minister and as such if we have any really fair dinkum OFFICERS
OF THE COURT presiding at the bench then I expect no less that John Howard and his cohorts
who authorised the unconstitutional conduct, and those who directly and/or indirectly supported
this conduct are brought to JUSTICE and face the legal consequences of their TREACHERY, 30
etc.
Mr. BARTON.-Yes. The Queen is the Commander-in-Chief of the British Army. She has the sole
power of making peace and war. According to constitutional assumption it is her army. But who 35
exercises the control of the Imperial Army? Is it not the adviser of the Queen? Would there not, as I
said before, be a revolution if the Queen exercised her powers without consulting her Ministers?
And
Then, again, there is the prerogative right to declare war and peace, an adjunct of which it is that the 40
responsible Minister. Wherefore, we all came to the conclusion, as constitutional writers have long
come to the conclusion, that the prerogative is given in trust for the people, and is, therefore, only
exercised at the instance of a responsible Minister. I should like to know whether there would not be a 45
revolution in England if the Queen chose to declare war or to make peace without the sanction or
advice of a responsible Minister? That would be as absolutely gross an infraction of the Constitution as an
attempt to abolish the House of Commons, as the advent of a second Protector, not only taking away the
bauble, but taking all those who surrounded it. Do we not then come to this conclusion, that the
Constitution is absolutely safe in this form as we understand it, that you can not have a prerogative of 50
the Crown in these modern days which can be exercised without the advice of a responsible Minister if
a responsible Minister chooses to advise?

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Therefore, it must be clear that the responsible Minister being the Minister of Defence is the
only appropriate person to advise the Governor-General as after all he is the responsible
Minister who is commissioned to be the Minister for the Department of Defence.
While the Delegates did at times indicate that there would be a Prime Minister, and as such the
unwritten Constitution does include the appointment of a Prime Minister, it does however not 5
take away the constitutional condition that only the Minister of Defence can advise the
Governor-General as to if the Governor-General ought to issue a DECLARATION OF WAR or
not.

Mr. BARTON.-
But the Minister is responsible for the administration of the department as the person under whose
control it is, within the Executive arrangement, and he is responsible for all expenditure upon it.
Having this responsibility, he is entitled to tender the advice which will enable him to exercise his 15
responsibility fearlessly.

As such, unless the Prime Minister happens to be at the time the Minister of Defence, the Prime
Minister does not service in dealing with the issue of if there should or should not be a request to
the Governor-General for a DECLARATION OF WAR to be issued. 20
In the case with the armed invasion into the sovereign nation Iraq, either the Minister of Defence
did not give any advise to the Governor-General, considering,
if a responsible Minister chooses to advise
or the Minister of Defence simply did give the advise but the Governor-General at the time
deemed it was against the national interest of the general community to authorise an armed 25
invasion into the sovereign nation Iraq. Either way, the end result was that the Minister of
Defence had no lawful authority to deploy Australian troops and certainly not invade the
sovereign nation Iraq. Indeed, any armed invasion would be in breach of Section 24AA of the
Crimes Act (Cth) as Iraq was at the time a friendly nation.
30
It also must be understood that the Federal Parliament neither could authorise an armed
invasion, even if it had purportedly done so, albeit the Senate opposed this in any event.

As for the United Nations, it had no constitutional position to override the prerogative powers of
the Governor-General or any other constitutional power or limitation, and even if the UN 35
somehow had authorised an armed invasion into Iraq, which I understand it never did in any
event, it still would not have made it constitutionally valid for the Minister of Defence to allow
Australian troops to invade the sovereign nation Iraq.
Sir J. G. LEE STEERE.-
. What is the use of our agreeing to have a federal defence force if there is to be no head? Suppose a war
broke out and we wanted to concentrate all the colonial troops in one place, who is to give the orders? The
Prime Minister of one colony would not allow the Prime Minister of another colony to give such orders.
We must have a general appointed by the Imperial Government to take command of the troops, and we must 45
have an Executive Government on whose orders that general would act, otherwise we cannot have federal
defence.

Sir SAMUEL GRIFFITH: I should have preferred, Mr. President, that my hon. friend beside me, the Hon.
James Munro, Prime Minister of the great colony of Victoria, should have followed you in the debate on
the resolutions that you have submitted to us.

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The PRESIDENT:
By some oversight when the delegates were elected by Parliament, there was, I believe, no member of the
government elected beside the Prime Minister, Mr. Munro, and unless Mr. Shiels be allowed the privilege 5
of remaining upon the understanding that he will not take part in the voting, the Prime Minister of Victoria
will be left without a colleague in his government

Mr. GILLIES:
How could it possibly live unless the prime minister obtained a dissolution from the governor-general?

In this context it refers to the Governor-General and as such it refers to the Prime Minister of the
Commonwealth of Australia. 15

Mr. CLARK:
When we know that he has the power of nominating every member of the senate, and every lieutenant- 20
governor, and of appointing superior and inferior judges and justices of the peace, as well as the power of
vetoing all local legislation, his long term of office is easily accounted for. With such reins in his hands he
might be expected to remain in the saddle an indefinite time. We do not want to place it in the power of the
prime minister of our dominion to exercise patronage to that extent. What we want is a separate federal
judiciary, allowing the state judiciaries to remain under their own governments. 25

The so called WAR ON TERROR is not a WAR against some visible enemy, or some other
nation having armed forces, but rather has been ENGINEERED by POLITICIANS to pretend
there is some WAR going on and so that they can use this as an excuse to suspend CIVIL
RIGHTS, etc. The High Court of Australia in the 1943 Jehovah witness case wrongly then 30
concluding that somehow the Commonwealth of Australia could suspend CIVIL RIGHTS in
time of war. The truth is that the so-called WAR ON TERROR is not a WAR at all. It is a
political trick but in the process having declared this war against INDIVIDUALS, as that is what
it amount to, then INDIVIDUALS take it upon themselves to defend themselves in a PRE-
EMPTIVE strike kind of tactic (Remember the PRE-EMPTIVE strike to invade Iraq by the 35
Coalition of the Willing?) which included the Bali bombing killing 88 Australians.
I deplore any kind of killing of human being and nothing I write should be seen to seek to justify
the killing of 88 Australians in those bombings, but lets be clear about it, those INDIVIDUALS
who did the bombings were after all in a WAR against the Australian Government, as the
Australian Government had declared war on them, albeit not specifying specifically who the 40
Federal Government declared WAR against.

"Naturally, the common people don't want war, but after all, it is the leaders of a country
who determine the policy, and it is always a simple matter to drag people along whether it
is a democracy, or a facist dictatorship, or a parliament, or a communist dictatorship. Voice 45
or no voice, the people can always be brought to the bidding of the leaders. This is easy.
All you have to do is tell them they're being attacked, and denounce the pacifists for lack of
patriotism and exposing the country to danger. It works the same in every country."

Hermann Goering, Hitlers' Reich-Marshall, at the Nuremberg trials after WW2. 50

Indeed, this too was my constitutional issues before the courts, and so successfully, that on 8
October 2001 the writs were issued by the Governor-General but unbeknown to the Governor-

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General the PROCLAMATION to prorogue the Parliament and to dissolve the House of
Representatives had not been Gazetted and so published until 9 October 2001 and as such the
writs were without legal force. Neither did the Gazette bear any references to Government
Printer, as was required by the Act I nterpretation Act 1901 and as such was neither valid for this
also. 5
See also page 10 of the Chapter Chapter 003 LEGAL FICTION

Mr. SYMON (South Australia).- 10
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
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. The first
clause says-This Act maybe cited as the Commonwealth of Australia Constitution Act." I assent to all that. 20
Then comes clause 3, which says it shall be lawful for the Queen, by and with the advice of Her Majesty's
Most Honorable Privy Council, to declare by proclamation that, on and after a day therein appointed, not
being later than one year after the passing of this Act, the people of the colonies enumerated shall be united in
a Federal Constitution under the name of-I say it ought to be "of Australia."
Again; 25
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.

And also consider; 30
Mr. BARTON.- I did not say that. I say that our real status is as subjects,
and that we are alike subjects of the British Crown.
35
Edmund Barton was born in NSW and later became the Second Prime Minister of Australia
after the first commissioned Prime Minister Mr. Lyne resigned his commission after 6 days
because he could not form a Government. He had been an obstruction to the formation of the
political union, but the Governor-General at the time held to be obligated to commission him to
be the first Prime Minister of the newly to be formed Commonwealth of Australia as Lyne was 40
the Prime Minister of the oldest colony NSW.
Mr. SYMON.-
Dual citizenship exists, but it is not dual citizenship of persons, it is dual citizenship in each person. There 45
may be two men-Jones and Smith-in one state, both of whom are citizens of the state, but one only is a
citizenship in Mr. Trenwith and myself. That is to say, I am a citizen of the state and I am also a citizen
of the Commonwealth; that is the dual citizenship.
And 50
Mr. SYMON.-
. As a citizen of a state I claim the right to be a citizen of the Commonwealth. I do not want to place in
the hands of the Commonwealth Parliament, however much I may be prepared to trust it, the right of
depriving me of citizenship.
And 55

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Mr. SYMON.-I would not put such a power in the hands of any Parliament. We must 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, 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 5
over our birth right as citizens to anybody, Federal Parliament or any one else, and I hope the amendment will
not be accepted.
And
So far the right of citizenship, if there is a right of citizenship under the empire, is defined in the 10
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. I must admit, after looking at a
standard authority-Stroud's Judicial Dictionary-that I cannot find any definition of citizenship as applied to a
British subject. No such term as citizen or citizenship is to be found in the long roll of enactments, so
far as I can recollect, that deal with the position of subjects of the United Kingdom, and I do not think 15
we have been in the habit of using that term under our own enactments in any of our colonies.
And
Mr. BARTON.-
He will be giving to the Commonwealth Parliament a power, not only of dealing with the rights of
citizenship, but of defining those rights even within the very narrowest limits, so that the citizenship of 20
a state might be worth nothing; or of extending them in one direction, and narrowing them in another,
so that a subject living in one of the states would scarcely know whether he was on his head or his heels.
Under the Constitution we give subjects political rights to enable the Parliament to legislate with regard to the
suffrage, and pending that legislation we give the qualification of electors. It is that qualification of electors
which is really the sum and substance of political liberty, and we have defined that. If we are going to give 25
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 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."
Mr. HIGGINS.-You give the Federal Parliament power to naturalize. 30
Mr. BARTON.-Yes; and in doing that we give them power to make persons subjects of the British
Empire. Have we not done enough? We allow them to naturalize aliens. That is a power which, with the
consent of the Imperial authority, has been carried into legislation by the various colonies, and, of
course, we cannot do less for the Commonwealth than we have done for the colonies.
Mr. KINGSTON.-Such legislation is only good within the limits of each state. 35
Mr. BARTON.-Yes; and here we have a totally different position, because the actual right which a
person has as a British subject-the right of personal liberty and protection under the laws-is secured by
1766] the laws regarding property and personal liberty is still left with the states. We do not propose to 40
interfere with them in this Constitution.

Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 (9 December
2003). Doesnt address what-so-ever the State legislative jurisdiction as to citizenship.
Therefore, we have a High Court of Australia that appears to me being political motivated to try 45
to alter the Constitution by stealth!
It must be clear that the terminology used are; British subject, to make persons subjects of
the British Empire., with the consent of the Imperial authority, What is meant is a dual

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citizenship in Mr. Trenwith and myself. That is to say, I am a citizen of the state and I am
also a citizen of the Commonwealth; that is the dual citizenship.
There are numerous other quotations that makes it very clear that Australians (as they then
already were referred in view of the title Australia of the continent) in reality were British
subjects and aliens were to be naturalized by consent of the British Parliament to be made British 5
subject (nationals).

Again the quotation from the joint judgment; Windeyer J said in Victoria v The Commonwealth ("the
Payroll Tax Case")
[18]
( [18] (1971) 122 CLR 353 at 395-396.)
"The Colonies which in 1901 became States in the new Commonwealth were not before then sovereign 10
bodies in any strict legal sense; and certainly the Constitution did not make them so. They were self-
governing colonies which, when the Commonwealth came into existence as a new Dominion of the Crown,
lost some of their former powers and gained no new powers. They became components of a federation, the
Commonwealth of Australia. It became a nation.
15
Clearly, this 1971 statement of Windeyer J could not be relied upon where it was made without
the High Court of Australia then permitting the usage of the Hansard records of the Constitution
Convention Debates. It might suit the judges of today to seek to rely upon it for purpose to
achieve to their end result to validate the unconstitutional IR WorkChoices legislation but this
only, in my view, questions the credibility of the judges concerned. 20

Mr. HIGGINS.-I understood the honorable member to put himself on the very highest pedestal, and by
contrast to put me on the very lowest. At all events, I feel that if this were carried, an unpopular individual, to 25
obtain his rights and liberties, would have to go cap in hand to and be at the mercy of the Government of the
day. I was thinking of the pig-tail case which occurred in California, and which I alluded to some time
ago, where an abominably unjust law was passed against Chinamen. It was passed to persecute them in
regard to their pig-tails, which they [start page 1689] regard with exceptional reverence. That law was
declared to be unconstitutional as a law passed by a state. I ask honorable members to consider the great 30
difficulty there would be in getting the Federal Congress or Federal Executive to interfere in the case of
Chinamen, so as to enforce their rights in such a case. There was an exceptional law which should never have
been passed. It was distinctly a persecuting law. Any practical politician would see the great difficulty there
would be in appealing to a Federal Executive, especially if there was an election approaching, to enforce the
just rights of Chinamen in such a case. The same thing might happen supposing a federal law were 35
passed which was outside the Constitution. Supposing that a majority of the state concerned happened to
regard the man as unpopular supposing a law were passed that no one bearing the name of Jones should be
admitted into the state of Virginia, the law might be directed against a certain person named Jones, and it
would be unconstitutional, and Jones could not enforce his rights to go into that state. I ask, is he to be
compelled to go cap in hand to the Attorney-General of the state of Virginia to enforce his rights? I feel that, 40
with the very best intentions my honorable friend is making the gravest of mistakes. So far as regards the
main purport of the amendment, it would mean this: That you could only get a point of this sort decided by
having a state or Commonwealth intervening as a party. You would turn judicial questions into political
questions. You would proclaim-"Here is a question between the state and the Commonwealth; here is a
political question"; and you would make the Judges partisans. It is one of the great advantages of 45

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private persons being able to raise these points, and not the states or the Commonwealth, that you keep
the judicial bench free from the taint of political partisanship. I feel that the more you look at this thing
all round, the more inconsistent it is with the very first principles of justice. It may be said-Even supposing
the law does go beyond the Constitution in some degree, surely it ought not to be left to a private person to
upset it." I say it ought to be upset at once and at the very earliest point. As soon as ever you find it has 5
gone beyond the bounds you ought to say-"This thing is illegal." Otherwise you will leave to the
Ministry of the day these powers of which you are so careful, giving them to a majority of the states
and to a majority of the people. You would allow the Ministry of the day to exercise a suspending
power as to whether it would enforce a law or not, which is most dangerous.
10
Mr. OCONNOR.-
Then how can you say that you are protecting the man who is so poor that he cannot afford to go to the Privy
Council, when you are leaving in the Constitution a power which enables a case to be taken to the Privy 15
Council at any time? If one looks at this matter not from the view of an appeal to passion, or by-using
epithets, or by the introduction of any other irrelevant matter at all, then the only question which arises is-
Should we extend this power of appeal to the class of cases to which it has been decided by the Privy Council
that the right applies? It has been laid down in many cases that it is not in every instance that Her Majesty in
Council will allow this right of appeal. And may I remind honorable members for a moment of the way this 20
right is exercised? The petitioner appeals to the Queen. The petition is referred to the Privy Council. If it be a
proper case for appeal the Privy Council gives leave, and then the appeal has to be made to the Privy Council.
This is a roundabout elaborate method, but it is the method that has to be adopted. It is not in every case that
the appeal is allowed. It has been laid down in the case of Princev. Canyon and in many other cases
that this appeal will not be allowed where the case involves. only disputed matters of fact in which no 25
question of magnitude is involved, and no question of public interest and importance. Consequently, it
in only in cases where it is either some. particular question, as affecting great interests-as affecting the
interests of many persons-as affecting some question of the conflict of laws or of decisions which have
already been come to; it is only in [start page 2311] those cases in regard to which the rule has been laid
down as to Canada that appeals will he permitted. 30

And
Mr. CARRUTHERS (New South Wales).-
This Constitution does not give the people of Australia power to make laws at all. Can any honorable
member deny that? This Constitution, I repeat, does not give the people of Australia power to make 35
laws. No law is worth a snap of the fingers until the Queen has given her assent to it.
Mr. SYMON-Oh, oh!
Mr. CARRUTHERS.-It is all very well to brush aside my contention in that way, but, as a matter of fact,
you have to obtain the Royal assent to a proposed law before it can become law. Having acknowledged the
right of the Crown in regard to the power of making laws, the argument of the honorable member falls to the 40
ground in regard to claiming the right of making the laws.
Mr. SYMON.-And the Queen's court interprets them.

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Mr. CARRUTHERS.-All we ask is that the Queen's court, as we know it, should be the court under this
Constitution to interpret the laws-rather the court we know than the court we don't know.
And
Mr. CARRUTHERS.-
My [start page 2313] honorable friend urges a very common argument against the continuance of this 5
right of appeal to the Privy Council-an argument which only needs to be examined to be thoroughly
demolished, namely, that we want to have, in the final Court of Appeal, a body of Judges who have
colonial experience, who have colonial ideas, and who have colonial knowledge. Now, any man,
especially an able member of the bar like-my honorable friend, ought to know that the worst tribunal
you could have would be a tribunal that would decide, not on the sworn testimony submitted to the 10
court, but on knowledge of the case, and in regard to the case and its surroundings, in the minds of the
Judges-evidence of a character which cannot be shaken by cross-examination-evidence which is not
known to the parties interested in the case at all. I venture to say that more mischief is done by cases
being decided by some twist or turn in the minds of Judges than by any judicial interpretation of the
evidence submitted to the court. Now, my great objection to establishing the final Court of Appeal in 15
Australasia is because there is existing in the minds of the Judges that unconscious bias. I do not impute
corruption; I would be very sorry to do or say anything which would tend to diminish the weight of the
authority of our colonial benches; but without laying myself open to the charge of saying anything improper,
I venture to repeat that that unconscious bias does exist, and will always exist, in small communities,
especially where they are inhabiting large territories. 20

While Wilson J stated at 42;
While on present authority it is not permissible to seek the meaning of s. 116 in the convention debates,

Wilson J of the High Court of Australia in the 1982 religious funding case argued that he could 25
not (then) rely upon the Hansard records, but even if he did he found that the Framers didnt
exclude religious funding. The other judges relied upon this and concurred with him.
The truth is that religious funding, regardless if it is by tax exemption, tax deduction, etc, is
all unconstitutional, as it all in the end is funds, one way or another, from consolidated
Revenue. 30

Mr. BARTON.-No; you have only two powers of spending money, and a church could not receive the 35

It must be clear that the about $9,000.00 per student for Exclusive Brethern and/or other kind of
religious schools is unconstitutional as they serve a religious purpose. Likewise the tax free or
tax concession provided by Peter Costello for the renovation of a Catholic Church clearly was 40
unconstitutional!
The Commonwealth of Australia cannot legislate what a religion is, and therefore can neither
provide for funding for any religious organization. It doesnt matter if it is a Jewish, Islamic,
Buddhist, Catholic, or other kind of religious school it all is and remain unconstitutional.

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Sir JOHN DOWNER.-I do not think that is necessary, because the Commonwealth will have only
such powers as are expressly bestowed upon it, and by no straining of construction can you find that 5
the Commonwealth has been given any power to legislate with regard to religion.

Mr. HIGGINS.-No; it would only prevent the making of laws for a religious reason. 10
Dr. COCKBURN.-Who could determine the intention of the state? The amendment would simply prohibit
the enactment of these laws.
Mr. HIGGINS.-My desire is to prevent the Federal Parliament from dictating to the states in these
matters.
15
National Australasian Convention) (Chapter 33 of the CD) (Re-now- Section 96 of the Constitution)
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. 20
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 certain definite purposes. There are definite powers of legislation and 25
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.
Mr. WISE-The order and good government of the Commonwealth would come under the term "public 30
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 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 35
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 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 40

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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.

WELSH v. UNI TED STATES, 398 U.S. 333 (1970), 398 U.S. 333, WELSH v. UNI TED STATES,
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, No. 76., 5
Argued January 20, 1970, Decided June 15, 1970 20 January 1970
3. Section 6 (j) contravenes the Establishment Clause of the First Amendment by
exempting those whose conscientious objection claims are founded on a theistic belief
while not exempting those whose claims are based on a secular belief. To comport with
that clause an exemption must be "neutral" and include those whose belief emanates from 10
a purely moral, ethical, or philosophical source. Pp. 356-361.
4. In view of the broad discretion conferred by the Act's severability clause and the longstanding policy of
exempting religious conscientious objectors, the Court, rather than nullifying the exemption entirely, should
extend its coverage to those like petitioner who have been unconstitutionally excluded from its coverage. Pp.
361-367. 15

Yet, the Commonwealth Electoral Act 1915 Section 245 unconstitutionally provides for
religious exemption!
As stated below;
QUOTE 20
Remarkably, albeit the Constitutional Convention Bill 1898 (see 16 March 1898) had no
provision for financial assistance to the states, as was defeated by the Convention (as shown
above) in the final Constitution never the less, as enacted in 1900 had the following;

96 Financial assistance to States 25
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.
30
It appears therefore, that albeit the matter was defeated at the Constitutional Convention, it was
inserted thereafter!
END QUOTE
However, as the matter was extensively debated, as shown below, therefore we still do now
what Section 96 was about, being State financial crisis matters, nothing to do with religious 35
school funding! Therefore the High Court of Australia in ATTORNEY-GENERAL (VI CT.); EX
REL. BLACK v. THE COMMONWEALTH [1981] HCA 2; (1981) 146 CLR 559 (2 February
1981) and other decisions were utterly wrong about the application of Section 96, and it being
used for funding schools. Section 96 is limited to State financial crisis, and not for some third
party funding, to obtain unconstitutional powers over States or others! 40
If we briefly attend to the provision of section 51(iv) as to borrowing funds, then this too is
limited;
National Australasian Convention) (Chapter 33 of the CD);
Mr. ISAACS.-You are referring to paragraph (4) of clause 52? 45
Mr. HOLDER.-Yes.

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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 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 5
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 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 10
needs, or upon some other 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.
And 15
Mr. BARTON.-The honorable and learned member (Mr. O'Connor) pointed out that it might
prevent the passing of a law for Sunday observance. The real question for-as to decide is whether the
clause should or should not remains. The only difficulty I have upon the point is this: I do not anticipate
any trouble from the want of a prohibition upon the states forbidding them from dealing with religious
questions, but we must always [start page 662] recollect that humanity has a habit of throwing back to 20
its old practices. Since a couple of hundred years ago we have been tolerably free from sumptuary laws.
But there is in many quarters a great disposition to take to these laws again, and we may before many
years have passed be overwhelmed with them.
Clearly, Commonwealth of Australia borrowings are therefore very limited as to what it can be
used for! 25
Mr. HIGGINS (Victoria).-In Adelaide I voted against the insertion in the preamble of a form of words
proposed by the honorable member (Mr. Glynn), and it is with regret that I shall have to repeat that vote-at
the present time, because the Constitution contains no provision to obviate the had effect which the insertion 30
of these words will have. I am glad that I am so far justified in my opposition to the proposal made by the
honorable member in Adelaide by the fact that no Assembly and no person has suggested the insertion of the
words which were then proposed to be inserted by the honorable member. Those words were utterly
inappropriate. I freely admit that the words which he now proposes to insert are not quite so objectionable,
though I still think that the amendment could be improved upon. I say frankly that I should have no objection 35
to the insertion of words of this kind in the preamble, if I felt that in the Constitution we had a sufficient
safeguard against the passing of religious laws by the Commonwealth. I shall, I hope, afterwards have an
opportunity, upon the reconsideration of the measure, to bring before the Convention a clause modified to
meet some criticisms which have been made on the point, and if I succeed in getting that clause passed it will
provide this safeguard. I shall have an opportunity then of explaining how exceedingly important it is to have 40
some such safeguard. There is no time for me now to go into an elaborate history of this question so far as the
United States of America are concerned. I have investigated it with a great deal of care, and I can give the

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result of my investigations to honorable members, who, I hope, will not believe that I would misled them if I
could help doing so with regard to the effect of what has taken place there. Because they had no words in the
preamble of the Constitution of the United States to the effect of those which the honorable member (Mr.
Glynn) wishes to insert, Congress was unable to pass certain legislation in the direction of enforcing religion.
There was a struggle for about thirty years to have some words of religious import inserted in the preamble. 5
That struggle failed; but in 1892 it was decided by, the Supreme Court that the people of the United States
were a Christian people.
Mr. BARTON.-That decision was followed practically by the decision that they were a Christian people.
Mr. HIGGINS.-Yes. That decision was given in March or February, and four months afterwards it was
enacted by Congress that the Chicago Exhibition should be closed upon Sundays, simply upon the ground 10
that Sunday was a Christian day. The argument was that among a Christian nation you should enforce
Christian observances.
Mr. BARTON.-Could they not have closed the exhibition on Sundays without that enactment?
Mr. HIGGINS.-I think the honorable and learned member will hear me out in this, that there is nothing in
the Constitution of the United States of America, even indirectly, suggesting a law of this sort. No doubt, the 15
state of Illinois could have passed such a law, because it has all its rights reserved. But there was nothing in
the Constitution enabling the Congress to pass. a law for the closing of the exhibition Sunday. As soon as
ever those parties who had been working for the purpose of getting Sunday legalized throughout the United
States found that decision given in February, 1892, that "this is a Christian nation," they followed it up
quickly, and within four months there was a law passed for the closing of the exhibition on Sunday. 20
Mr. WISE.-Was that held to be constitutional?
Mr. BARTON.-It has not been challenged yet.
[start page 1735]
Mr. HIGGINS.-It has been in force for five and a half or six years, and it was struggled against, as my
honorable friend will know. There was a strong monetary interest against it, and they, no doubt, took advice, 25
but I will say frankly that I am not aware that it has been held to be constitutional. I understand though that
there has been no dispute among the legal men in that country as to its being constitutional. Honorable
members will hardly realize how far the inferential powers have been extended in America. I should have
thought it obvious, and I think Mr. Wise will agree with me, that the Congress had no power to pass a law of
that sort. 30
Mr. WISE.-I admit that your statement puts a very different complexion on the matter.
Mr. HIGGINS.-I hope it does, because it will become a very important matter. I should have thought that
it was not within the scope of Congress to pass a law, no matter how righteous, to close the exhibition on
Sunday, but I find, on looking to a number of decisions in the United States, that it has been held again and
again that, because of certain expressions, words, and phrases used in the Constitution, inferential powers are 35
conferred upon the Congress that go beyond any dreams we have at present. I know that a great many people
have been got to sign petitions in favour of inserting such religious words in the preamble of this Bill by men
who know the course of the struggle in the United States, but who have not told the people what the course of

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that struggle is, and what the motive for these words is. I think the people of Australia ought to have been told
frankly when they were asked to sign these petitions what the history in the United States has been on the
subject, and the motive with which these words have been proposed. I think the people in Australia are as
reverential as any people on the face of this earth, so I will make no opposition to the insertion of seemly and
suitable words, provided that it is made perfectly clear in the substantive part of the Constitution that we are 5
not conferring on the Commonwealth a power to pass religious laws. I want to leave that as a reserved power
to the state, as it is now. Let the states have the power. I will not interfere with the individual states in
the power they have, but I want to make it clear that in inserting these religious words in the preamble
of the Bill we are not by inference giving a power to impose on the Federation of Australia any
religious laws. I hope that I shall be excused for having spoken on this matter. I felt that it was only fair that 10
honorable members should know that there is a damer in these words, if we are to look to the precedent of the
United States. I will help honorable members in putting in any suitable words provided that we have
sufficient safeguards.
Mr. LYNE.-Will you explain, before you sit down, where the particular danger is?
Mr. HIGGINS.-The particular danger is this: That we do not want to give to the Commonwealth 15
powers which ought to be left to the states. The point is that we are not going to make the
Commonwealth a kind of social and religious power over us. We are going into a Federation for certain
specific subjects. Each state at present has the power to impose religious laws. I want to leave that
power with the state; I will not disturb that power; but I object to give to the Federation of Australia a
tyrannous and over-riding power over the whole of the people of Australia as to what day they shall 20
observe for religious reasons, and what day they shall not observe for that purpose. The state of
Victoria will be able to pass any Sunday law it likes under my scheme.
And
Mr. HIGGINS.-No; I think the honorable member will see that a recital in the preamble to the
Constitution is a very different thing from an oath which may be taken in a court of justice or 25
anywhere else.
Mr. DOUGLAS.-You will find that you can make an affirmation without referring to Almighty God.
Any person can make an affirmation who has no belief in Almighty God.
The CHAIRMAN.-I do not think the honorable member is in order in making a speech.
Mr. HIGGINS.-I thank the honorable member for being disorderly under the circumstances. I think 30
there is a good deal of force in what he says, but I also see this, that the taking of an oath in a court of
justice or on taking office is quite a different thing from having in a well thought-out preamble to a
Constitution any reference to religious belief.
Mr. WALKER.-It is prescribed in the schedule.
Mr. HIGGINS.-That may be, but a schedule is quite a different thing from a preamble. 35
And
Mr. DOUGLAS (Tasmania).-When this subject was broached in Adelaide, I took the opportunity of
stating that I could not see the utility of inserting these words in the preamble of the Commonwealth

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Bill, and my opinion has not in anyway altered up to the present time. I should like to know what is the
object honorable members have in view in desiring the insertion of these words? Do these words
convey to the public mind any particular idea that their insertion in the preamble of this Bill would
make us a religious people? The words in question are "humbly relying on the blessing of Almighty
God." Now, do not we all rely upon the blessing of Almighty God in our daily transactions? Certainly. 5
But do we set forth that fact in all our letters and documents by which we communicate with one
another? Certainly not. No doubt the supporters of this amendment desire to make the public believe
or fancy that they will become a religious people if such words as these are put into the preamble of
this Bill. Do we do this at the present time in our ordinary legislation? Do not we all know that it is a
mockery that the House of Commons at the present time commences its sittings, day by day, by having 10
prayers read in that assembly? The Speaker of the House of Commons reads the Lord's Prayer before
proceedings are commenced, but it has crown into such a farce that nobody attends the House until the
prayer is over. Do we want to introduce that system here?
Mr. PEACOCK.-It is done here.
Mr. DOUGLAS.-I believe that there are still some legislative assemblies in Australia where they 15
commence the day's proceedings by reading the Lord's Prayer. It was originally done in Tasmania, but it was
soon found out to be a perfect piece of mockery, and abandoned.
Mr. ISAACS.-Do not you have any reference to the Supreme Being in the Governor's speech in
Tasmania?
Mr. DOUGLAS.-We used to have the Lord's Prayer read in the Legislative Council, but it became a matter 20
of such indifference that the custom was given up.

Mr. HIGGINS.-No; it would only prevent the making of laws for a religious reason. 25
Dr. COCKBURN.-Who could determine the intention of the state? The amendment would simply prohibit
the enactment of these laws.
Mr. HIGGINS.-My desire is to prevent the Federal Parliament from dictating to the states in these matters.

Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the 30
kind of social and religious power over us. We are going into a Federation for certain specific subjects. Each
state at present has the power to impose religious laws. I want to leave that power with the state; I will 35
not disturb that power; but I object to give to the Federation of Australia a tyrannous and over-riding
Sunday law it likes under my scheme. It can pass any law of that sort now; but surely it is a proper thing for
a state, and it is not a proper thing for the Commonwealth, to exercise this power. I feel that honorable 40
members who value state rights reserved [start page 1736] to the states, who value the preservation of the

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the state.
Again;
I want to leave that power with the state; I will not disturb that power; but I object to give to the
Federation of Australia a tyrannous and over-riding power over the whole of the people of Australia as 5
to what day they shall observe for religious reasons, and what day they shall not observe for that
purpose.
And
I feel that honorable members who value state rights reserved [start page 1736] to the states, who value the
preservation of the individuality of the states for state purposes, will agree with me that it is with the state we 10
ought to leave this power, and that we ought not to intrust it to the Commonwealth. For instance, our
factory laws are left to the state.

The latter one reflects how misconceived the 14-11-2006 High Court of Australia judgment was
in regard of Industrial Relations legislation by the Commonwealth of Australia. 15

Tax deductions for religious schools and other religious entities are then also prohibited!
It should be noted that the Framers of the Constitution did very much consider treaties, etc
but restricted it to those powers otherwise provided for in the constitution to the
Commonwealth, and no more. 25

QUOTE
867 I am quite unwilling to attribute to the founders the limited vision and foresight which the passage
quoted attributes to them. They were greatly concerned with international affairs, including, in 30
particular, regional affairs
[1139]
. Discourse about international affairs, agreements and treaties, albeit
predominantly about mutual resistance to aggression, throughout the 19th century was intense and
prolonged
[1140]
. Shifting alliances made by treaties and otherwise, and the need for international
cooperation and a body such as the League of Nations were not new ideas in 1919
[1141]
. The century before
federation was a century of many wars between both large and small belligerents. In 1900 Australia aspired 35
to be a nation of significance. The founders did not intend it to be tied to the apron strings of Britannia
for ever. Otherwise there would have been no need for an external affairs power at all, or at least one
as expansive as the power in terms is.

868 The Commonwealth also relies on the passages from Mason J that I have quoted for the 40
submission that implications may not be drawn from the "federal balance". I have rejected that
submission. Much more was drawn from less by this Court in Lange
[1142]
. These further points should be
made. His Honour's statement was made before Cole v Whitfield which approved recourse to the
Convention Debates in the passage that I have quoted elsewhere
[1143]
. Such recourse would have
revealed to his Honour the founders' concern about the matters which his Honour said they would not 45
have foreseen.
END QUOTE

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It should be noted that Section 51(v) indicates in particular that the Framers did consider
the future but held that it would be for the people to decide by way of S128 referendum if
further powers were to be given in their contemporary situations.

And the following statements from the Hansard records of the Constitution Convention Debates; 5
Again;
Mr. SYMON (South Australia).-
That is, for admission into this political Union, which is not a republic, which is not to be called a 10
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.

Mr. BARTON.- I did not say that. I say that our real status is as subjects,
and that we are alike subjects of the British Crown.

Mr. SYMON.-
Dual citizenship exists, but it is not dual citizenship of persons, it is dual citizenship in each person. There
may be two men-Jones and Smith-in one state, both of whom are citizens of the state, but one only is a
citizenship in Mr. Trenwith and myself. That is to say, I am a citizen of the state and I am also a citizen 25
of the Commonwealth; that is the dual citizenship.
And
Mr. SYMON.-
. As a citizen of a state I claim the right to be a citizen of the Commonwealth. I do not want to place in
the hands of the Commonwealth Parliament, however much I may be prepared to trust it, the right of 30
depriving me of citizenship.

See also for a greater set out; Chapter 006 The Constitution is a PERPETUAL LEASE?

See also for the following; Chapter 001 CREATION OF THE CONSTITUTION 35

**#** Take for example the issue of Mr. David Hicks in US prison detention;

Dr. QUICK.-
The Constitution empowers the Federal Parliament to deal with certain external affairs, among which would
probably be the right to negotiate for commercial treaties with foreign countries, in the same way as Canada
has negotiated for such treaties. These treaties could only confer rights and privileges upon the citizens of
the Commonwealth, because the Federal Government, in the exercise of its power, [start page 1753] could 45
only act for and on behalf of its citizens.

Therefore the Federal Government has a DUTY OF CARE to secure the release of Mr. David
Hicks. Mr. David Hicks right of a FAIR AND PROPER TRIAL should have been the same as
any American. But there is another twist to this. Because the Commonwealth of Australia, albeit 50
unconstitutionally, joined the so called COALITION OF THE WILLING then Mr. David
Hicks was as much a prisoner of the Commonwealth of Australia as that of the USA, in deed so
was the late president Saddam Hussein. Meaning, that both had a legal right to have the
protection of the Federal Government and as such the late President Saddam Hussein as not to be
executed, in view that the European Union Human rights Act does in fact apply also the 55
Commonwealth of Australia, just that politicians and lawyers dont comprehend this. As for Mr.

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David Hicks, the treaty between Cuba and the USA does not allow the holding of prisoners not
involved with coaling or the navy station! Further, the 1688 Bill of Rights, 1640 Habeas
Corpus also does not permit the transport of prisoners over the seas, and require the release of
prisoners at the end of hostilities of the war itself. As such I can foresee that the Person
purporting to be the prime minister, the person purporting to be the Minister of Defence and 5
others in Government may just get sued in time to come. After all while the Migration Act
allows the Minister to determine to detain/deport a person, constitutionally it has no legal force
unless and until a State Court with a JUDICIAL DETERMINATION formally orders this. As
such the navy being involved in towing unseaworthy boats into international waters also can be
a crime on the high seas. 10

QUOTE http://www.australianpolitics.com
Constitutional Conventions
The Australian Constitution combines literal interpretation with convention. Whilst some sections are
adhered to literally, others operate by accepted practices, often built up over centuries. 15
A convention is not a law, but merely an accepted way of doing something.
For example, the Australian Constitution, in its original form, makes no mention of the Prime Minister, the Cabinet,
or political parties. These are amongst the most significent conventions.
Specifically:
Governor-General 20
Section 2 of the Constitution says: "A Governor-General appointed by the Queen shall be Her Majesty's
representative in the Commonwealth..."
In practice, the Governor-General is chosen by the Prime Minister of the day, possibly in conjunction with
Cabinet. In the early years of the Federation, the Governor-General was appointed from Britain. In the early
1930s, Prime Minister James Scullin visited London in order to apply pressure on the British government to 25
allow the appointment of Sir Isaac Isaacs as Governor-General. Isaacs eventually became the first
Australian to hold the position. Since the 1960s, all Governors-General have been Australians.
Parliamentary Sessions
Section 5 of the Constitution says: "The Governor-General may appoint such times for holding the sessions
of the Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue 30
the Parliament, and may in like manner dissolve the House of Representatives."
In practice, the government of the day decides when Parliament will sit. These are intensely political
decisions made by the Prime Minister and the most senior members of the government and its advisers.
Terms of Parliament
Section 28 of the Constitution says: "Every House of Representatives shall continue for three years from 35
the first meeting of the House, and no longer, but may be soon dissolved by the Governor-General."
This section is interpreted literally in the sense that no House of Representatives may continue for longer
than three years. However, the earlier dissolution of the House is not decided by the Governor-General, but
by the Prime Minister of the day.
Officially, the Prime Minister calls upon the Governor-General to "request" a dissolution, although there 40
are historical incidents of Governors-General rejecting or querying this advice.

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There were three occasions between 1901-10 when such requests were rejected by the Governor-General.
In 1983, the Governor-General, Sir Ninian Stephen, sent the Prime Minister, Malcolm Fraser, away with
instructions to provide detailed argument in support of his request for a double dissolution of the
Parliament.
Executive Government Conventions 5
Chapter 2 of the Constitution (Sections 61-70) sets out how the Government of Australia shall operate. It
makes no mention of the Cabinet, political parties or the Prime Minister:
o Section 61 states: "The executive power of the Commonwealth is vested in the Queen
and is exercisable by the Governor-General as the Queen's representative, and extends
to the execution and maintenance of this Constitution, and of the laws of the 10
Commonwealth."
In practice, it is the Cabinet, led by the Prime Minister, which performs this task.
o Section 62 states: "There shall be a Federal Executive Council to advise the Governor-
General in the government of the Commonwealth, and the members of the Council shall
be chosen and summoned by the Governor-General and sworn as Executive Councillors, 15
and shall hold office during his pleasure."
In practice, the Governor-General, acting on the advice of the leader of the majority party in the
House of Representatives, summons members of the majority party and swears them in as
ministers. The Executive Council operates in accordance with the Constitution, but the Governor-
General always acts on the advice of his ministers. 20
o Section 64 states: "The Governor-General may appoint officers to administer such
departments of State of the Commonwealth as the Governor-General in Council may
establish. Such officers shall hold office during the pleasure of the Governor-General.
They shall be members of the Federal Executive Council, and shall be the Queen's
Ministers of State for the Commonwealth." 25
In practice, the Prime Minister is the person who leads the party with a majority in the House of
Representatives. The ministers are chosen by the Prime Minister who advises the Governor-
General of the names and portfolios to be allocated to them.
It was this section of the Constitution that the Governor-General used to dismiss the Whitlam
Government in 1975. This is the only instance in Federal political history of the Governor-General 30
exercising the so-called Reserve Powers in this way.
o Section 68 states: "The command-in-chief of the naval and military forces of the
Commonwealth is vested in the Governor-General as the Queen's representative."
In practice, the Prime Minister and the Defence Minister are in charge of the armed services. It is
unlikely that the armed services would accept orders from the Governor-General if they were not 35
also Government orders.
Appointment of High Court Justices
Section 72 states: "The Justices of the High Court and of the other courts created by the Parliament.. shall
be appointed by the Governor-General in Council."
In practice, judges are appointed by the Cabinet. The Governor-General simply rubberstamps the decision at a 40
meeting of the Executive Council. There is no known instance of the Governor-General attempting to influence
these decisions.
END QUOTE http://www.australianpolitics.com

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* Gary, you are still on about the OFFICE OF THE GUARDIAN?

**#** Answer;
INSPECTOR-RIKATI, persistency will in the end pay off. I have no doubt that in time a 5
constitutional council will be created when they realise that they did it wrong for so long and the
consequences no longer can be avoided. Just read the enclosed correspondence.

Mr. DEAKIN.- 10
In this Constitution, although much is written much remains unwritten

This is why we need 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. Then this OFFICE OF THE GUARDIAN can expose what is embedded in the 15
Constitution!

Take for example Prime Minister John Howard (Australia) bringing up some bold plan to spend
about 10 billion dollars on water management issues, that is provided the States hand him
legislative control over water. 20

* Well, isnt that good?

**#** Answer;
Considering that the constitution already for over 100 years have given legislative powers to the 25
Commonwealth of Australia to determine reasonable use of water and even so Malcolm
Turnbull the new Minister for Water seems to claim that it has been over-allocated since the
midst of the 20
th
century, somehow nothing was ever done by the commonwealth of Australia to
legislate for reasonable use. So, now they embark upon seeking more legislative powers, and
so strip the States of their powers even so they cannot even manage the legislative powers they 30
already have.

* What are the Premiers of the states stating?

**#** Answer; 35
Some seem to agree already, because it appears to me they see dollar signs rather then to
comprehend that constitutionally they have no powers to give away legislative powers of the
State. This is why they need an OFFICE OF THE GUARDIAN, in each and every State and
federally, so finally they can make some sense about constitutional powers and limitations
already existing. 40
Take for example Premier Steve Bracks who seems to argue that as long as the Federal
government will operate as the States desire then he has no particular objection to refer
legislative powers to the commonwealth of Australia.

* What is wrong with that? 45

**#** Answer;
Well, once the Commonwealth of Australia has the legislative powers then it can do as it likes as
the States will have no further control. Somehow State Premiers have the view that they can take

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back powers they referred to the Commonwealth of Australia, just that it isnt that way at all.
Once referred to the Commonwealth of Australia then that is the end of it.
Mr. DEAKIN.-
Another difficulty of the sub-section is the question whether, even when a state has referred a matter to 5
the federal authority, and federal legislation takes place on it, it has any-and if any, what-power of
amending or repealing the law by which it referred the question? I should be inclined to think it had no
such power, but the question has been raised, and should be settled. I should say that, having appealed
to Caesar, it must be bound by the judgment of Caesar, and that it would not be possible for it
afterwards to revoke its reference. 10

Yet, despite this, States continue to refer powers with clauses that it is revocable.

* Why is that?
15
**#** Answer;
Because Premiers simply havent got a clue what is constitutionally appropriate and regardless if
they are lawyers or not, unlikely would ever have researched the Hansard debates to try to find it
all out.
Members of Parliament are elected by the electors not because of their constitutional abilities but 20
merely because they happen to be standing in an election, because they were some famous sport
star, etc. As such, their skill in constitutional issues is more then likely next to nothing.
Even those who are lawyers may never have practice constitutional issues.

Look at the issue of Australian citizenship which is a kind of citizenship you obtain when 25
becoming a State citizen and includes a persons political rights such as franchise, yet, the
Commonwealth of Australia declared it to be some Australian nationality.

* What is wrong with that?
30
**#** Answer;
Well consider the following;

Mr. BARTON.-Yes; and here we have a totally different position, because the actual right which a person has as 35
a British subject-the right of personal liberty and protection under the laws-is secured by being a

(And in regard of citizenship;) 40
Mr. BARTON.-
I took occasion to indicate that in creating a federal citizenship, and in defining the qualifications of
that federal citizenship, we were not in any way interfering with our position as subjects of the British
Empire. It would be beyond the scope of the Constitution to do that. We might be citizens of a city,
citizens of a colony, or citizens of a Commonwealth, but we would still be, subjects of the Queen. 45
And;
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 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 50
Parliament."
And
Mr. BARTON.-
We are all alike subjects of the British Crown.
55

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It must be understood that Edmund Barton was born in NSW, Australia, and later became Prime
Minister of Australia.
So, while the Framers of the Constitution specifically refused any legislative powers for the
Commonwealth of Australia to define/declare citizenship, the Commonwealth of Australia
simply nevertheless legislated in regard of citizenship and purported to make it all being 5
different.

* What is the harm?

**#** Answer; 10
Well, for example, children born to aliens, who are constitutionally born within the realm of the
King/Queen and so are and remain subjects of the British Crown now are being deported as
STATELESS!

On 19 July 2006 I successful challenged the validity of the Australian Citizenship Act 1948 to 15
define/declare citizenship, and it was and remained UNCHALLENGED in a 5-year legal battle
with the lawyers of the Federal government, and my appeals succeeded. In fact I challenged
numerous other constitutional issues, such as the compulsory voting that is unconstitutional and
again I succeeded in it.
20
* So, why then does the Federal Government not rectify matters?

**#** Answer;
Because they have put themselves a law above the Constitution! The Federal government
appoints the judges to the High Court of Australia and so there is that bias. It is therefore 25
extremely difficult to have constitutional provisions and limitations enforced as the Federal
Government and also the States flaunt the Constitution as it pleases them. And this is why we
need an OFFICE OF THE GUARDIAN that will without political bias, state what is
constitutionally applicable to anyone.
30
* Surely the judges can do that?

**#** Answer;
Look, I have researched many of the High Court of Australia decisions and many I found were
an absurdity. The judges themselves not even comprehending what is Australian citizenship. 35
One judge even abstained from handing down a judgment making known he didnt know what
was constitutionally appropriate.

* What?
40
**#** Answer;
Yes, they appoint judges who may never have done any work in constitutional issues.

* But, isnt the High Court of Australia primary issue to deal with constitutional issues?
45
**#** Answer;
Yes, but there appears to be no formal training in that respect.
The Framers of the Constitution referred to the High Court of Australia to be the Guardians of
the Constitution, fat chance, where they lack to comprehend even an issue such as Australian
citizenship and what it stands for. 50

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If there was an OFFICE OF THE GUARDIAN then it would have the ability to present to
judges the complete relevant history of certain constitutional issues and even could challenge the
government or any State premier if any of them contemplated unconstitutional legislation.

* What is this making a difference to the man on the street? 5

**#** Answer;
Currently, the ordinary person on the street would need more then likely several hundreds of
thousands of dollars to try to challenge any unconstitutional conduct, and as such forget about
that ability. Hence, more then likely unless some rich company takes on the Government, the 10
Government gets away with any unconstitutional conduct, whereas if there was an OFFICE OF
THE GUARDIAN then it could take up the matter and we would still have enforcement of
constitutional powers and limitations without some poor devil being caused to pay a lot of legal
cost where his case was railroaded by the judges.
With premiers willing to hand over legislative powers disregarding any referendum for the 15
people to have their say, as is constitutionally required, it is going from bad to worse.
With an OFFICE OF THE GUARDIAN these and numerous other issues can be resolved
without having people for example being detained/deported unconstitutionally.
There is basically a total breakdown in DUE PROCESS OF LAW where some Minister or
some bureaucrat can have a person deported, regardless that person having been lawfully in the 20
Commonwealth of Australia but merely because they cannot bother to follow proper legal
procedures the Framers of the Constitution stipulated were to be followed.
The issue is we must protect the constitutional and other legal rights of any person, regardless of
their standing in society! With an OFFICE OF THE GUARDIAN we may achieve this better.
25
* Gary having done all this work and considering the wrongful appointment of the governor-
General who in turn is appointing Judges and also Members of parliament and considering that
the High Court of Australia judges all lack their constitutional Australian citizenship how
would you sum up then their judgment also in that regard about the WorkChoices legislation of
14 November 2006? 30

**#** An utter constitutional mess! And that is precisely what my case on appeals before the
County Court of Victoria was about, and I succeeded UNCHALLENGED on all constitutional
issues I raised, including those but not limited to those stated in the Section 78B NOTICE OF
CONSTITUTIONAL MATTERS, and as such the Court should attend to all this and seek to 35
address matters before making it a further legal soup!
COMMENT This document has exceeded my intentions as to volume by more then double but
to cut it down for this Chapter may not be right, hence I have left it in the manner it was
compiled other then to have reduced it with certain quotations of Chapters and instead refer to
the Chapter as such. Numerous other issues are at hand but have been left out (but are on the CD 40
issue), as it would too much increase the volume of this Chapter. However, it must be understood
that this Chapter must not be deemed to address all issues and relate to all relevant material but is
merely an indication that there is something drastically wrong how the High Court of Australia
allowed, with I view with a disregard of proper research relating all relevant matters, the
Amendment Act regarding WorkChoices legislation to be deemed constitutional valid. As per 45
my 5 November 2005 post (see page140) the Bill was not appropriately voted upon and
therefore constitutionally invalid!
Upon this the High Court of Australia also should have declare the legislation ULTRA
VIRES (NULL AND VOID) , as the Framers of the Constitution made clear (and so
embedded in the Constitution) it could do so lacking proper process having been followed. 50
END QUOTE Chapter 022A Failure of the case

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The following may also indicate the danger caused by the Sue v Hill decision where now the
High Court of Australia somehow seems to hold that the Parliament can order the killing of
every blue eyed baby (no longer limited by the original constitutional restrains of the legal
principles embedded in the constitution), whereas within the true meaning and application
of the constitution this would not be permissible/possible. 5

(Book-Colour)
QUOTE Chapter 000D HAVE EVERY BLUE-EYED BABY KILLED 10
Chapter 000D HAVE EVERY BLUE-EYED BABY KILLED
* Gary, what is your view about McHughs 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. 15
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 20
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!

index.php?act=findpost&pid=617635index.php?act=findpost&pid=617635
QUOTE 070520 posting 25
I am very disturbed to find the following of a quotation to have found this discussion;

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. 30
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 if it wanted to. 35
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 UNION BEING THE Commonwealth of
Australia. 40

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.

As author of the INSPECTOR-RIKATI books in regard of constitutional and other matters I have set out 45
extensively how I succeeded and defeated Federal Government lawyers after a 5-year legal battle on all
constitutional issues I raised!

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 50
constitutions that were based upon the provisions of the Magna Carta, Bill of Rights, Habeas corpus, etc.

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 55
knowledge in the constitutional matter before the court and for this would abstain from handing down a
judgment.

You find it as a matter of record that where the Governor-General was Defendant in a case before the High

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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.

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. 5

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 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. 10

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 15
others to bear arms, for defending their rights, and even 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.
20
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.

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. 25

My wife, opposed me to even fit a knife sharpers on the kitchen wall, but wanted me to 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 defend himself then 40
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 RELIGION and I for 45
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 personal views, and I
recognise others have total opposite views. They have their right on their opinion as much as I have and as 50
such I view that the concentration should not be as to 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.

In particular those of the law enforcement who are risking their lives daily to protect innocent citizens of harm 55
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 do actually
concentrate on the issue of right of freedom of travel, even so this likewise was protected by old English law. 60

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 a cart-and-wagon. As such,

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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 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 5
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 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, 10
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.

As a "constitutionalist" I find it laughable how judges, despite their extensive legal training, can come up with 15
such utter and sheer nonsense such as McHugh J did with his statement ;

QUOTE

But Parliament - some people would regard it as regrettable - can, in effect, do what it likes. As it is said, 20
some authorities could legislate to have every blue-eyed baby killed if it wanted to.
END QUOTE

As no such constitutional system operates that would allow the parliament to enact such laws.
25
And there I have to come back upon the other quotation;

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. 30
END QUOTE

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>
35
As I exposed in my book published on 30 September 2003


A book on CD about Australians unduly harmed. 40

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" 45
of rights, including franchise, and has 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.
50
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.
55
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.

And to make clear, no Parliament in the Commonwealth of Australia has any legislative powers to allow the 60
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.

Page 315
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As the Framers of the Constitution (Australia) made clear the Constitution was the "new Magna Carta".
END QUOTE 070520 posting

The danger is that if some fanatical religion were to come to power in Australia it could in fact 5
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
opposite! This is what we should keep in mind, and why the Framers of the Constitution so much 10
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

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

Would this really be acceptable? What if he had stated:
20
said, some authorities could legislate to have every Aboriginal killed if it wanted to.

said, some authorities could legislate to have every politice officer killed if it wanted to. 25

said, some authorities could legislate to have every judge killed if it wanted to.

Lets us be clear about it Parliament has no such powers! The fact that nevertheless a judge of the 30
high Court of Australia pronounced it has such powers should be of extreme concern and I view
question the competence of the High Court of Australia as to understand and comprehend the
true meaning and application of the constitution.

We never can nor must accept what constitutional arsonist desire to make from the 35
constitution.
The irony is that the one as I view it gangster union, being political parties union, is never
investigated for its own unconstitutional and illegal conduct of which I have written in my books
in the INSPECTOR-RIKATI series on certain constitutional and other legal issues so often.
The unconstitutional deposit for candidates now being used to make it a union only 40
Parliament, something politicians oppose for building sides, etc.
The unconstitutional above the line voting pattern which denies equality for candidates.
The unconstitutional payments of salaries kind of income to Members of Parliament, both
during and after having left parliament.
The unconstitutional payments to former Ministers, etc. 45
The unconstitutional Gold Card benefits to members of family of current or former
members of parliament.
The kick back is huge and yet no Royal Commission into any of these matters, and there is
a lot more. Why not one may ask as this goes to the root of democracy.
50
I never earned a living from any building work side and so have or had any financial interest
regarding any building site and/or its unions. To me what is happening with the parliament and
the government and how we are being managed by a corporate government and corporate courts
is far more serious and devastating then whatever those involved in the building industry can
accomplish. I do not seek to ignore nor approve of any illegal conduct by any building industry 55

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but as it appears to me they were taught a good lesson by the political unions how to rip of others
as politicians are ongoing doing.

The mere fact that the Queen may have (through the Governor-General or otherwise) provided
for Royal Assent in itself cannot validate any legislation that is in violation to the legal principles 5
embedded in the constitution. Indeed, in WakimHCA 27 of 1999 the Cross Vesting Act was
struck down as being unconstitutional regardless it had been given Royal Assent, this because the
Monarch cannot override the legal principles embedded in the constitution. In the wood case the
fact that the Governor-General had chosen Mr Wood to take up a seat in Parliament ultimately
had no bearing upon the validity or invalidity of him sitting in Parliament as such. Therefore, any 10
Royal assent that may have been given by or on behalf of the Monarch cannot validate any
legislation in violation to the legal principles embedded in the constitution!

For the above I for one cannot accept any constitutional validity in this Royal Commission
and object to its jurisdiction to hear and consider by summonses or otherwise anything 15
regarding the building industry and associated issues. In my view the real criminal gangs to
top the list are the political unions who now seek to use the Royal Commission Act for a
fact finding mission to with-hunt others.
Ask yourself where was the authorisation by Parliament by way of Appropriation Bill for
Mr Joe Hockey as treasurer to give away $8 billion to a private company called Reserve 20
Bank of Australia within days of having been commissioned as Treasurer, when no
Parliament was sitting to approve this, neither could it be in my view constitutional
permissible? Not a single building union could in my view what I call the mother of all rip
offs of taxpayers Consolidated Revenue Funds by the current political parties/unions in
power! 25

QUOTE
END QUOTE
Well we now have tax free incomes for religious bodies, this even so they are trading as any
other business, and so taxpayers are force to fund religious entities by backdoor manner
In my view the $8 billion payment was unconstitutional, as I view the same with the recent 35
Cadbury payment and the proposed guarantee of Qantas, a private company. But if we follow the
Sue v Hill doctrine that if you long enough distort the true meaning and application of the
constitution then it will become how the constitution applies, then why have a constitution at all?

This submission must be understood to be very limited, despite of the number of pages already 40
provided, because I am a person who views that to place an argument one needs to back it up
with relevant details such as quoting the Framers of the Constitution and not merely assume
things as I view most lawyers/judges/politicians are doing. I look forwards that this Royal
Commission addresses matters appropriately without fear or favour to any political party/person.
45
This correspondence is not intended and neither must be perceived to refer to all
issues/details.
Awaiting your response, G. H. Schorel-Hlavka O.W.B. (Friends call me Gerrit)
MAY JUSTICE ALWAYS PREVAIL
(Our name is our motto!) 50

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