ISSUE: 20180419- Re: STATES CAN LEGISLATE AS TO RIGHTS GOVERNING RELIGIOUS DIVORCE, etc

& the constitution

As a CONSTITUTIONALIST my concern is the true meaning and application of the constitution.

http://www.abc.net.au/news/2018-02-27/chained-women-jewish-wives-hostage-in-abusive-
marriages/9464038

Chained Women: The Jewish wives being held

hostage in abusive marriages
An upsurge in cases of men refusing to grant their wives a religious divorce is causing mounting alarm in Australian
Jewish communities, but the Government is refusing to intervene in what it considers to be a religious matter. Now,
survivors are calling on rabbis to take stronger action against what they say is a devastating form of domestic violence.

By Hayley Gleeson
Illustrations by Rocco Fazzari

Updated 27 Feb 2018, 9:13amTue 27 Feb 2018, 9:13am

http://www.abc.net.au/news/2017-07-18/domestic-violence-church-submit-to-husbands/8652028

'Submit to your husbands': Women told to

endure domestic violence in the name of God
Research shows that the men most likely to abuse their wives are evangelical Christians who attend church sporadically*.
Church leaders in Australia say they abhor abuse of any kind. But advocates say the church is not just failing to
sufficiently address domestic violence, it is both enabling and concealing it.

By Julia Baird with Hayley Gleeson

Illustrations by Rocco Fazzari

Updated 23 Jan 2018, 5:15pmTue 23 Jan 2018, 5:15pm

http://www.abc.net.au/news/2018-04-18/abused-muslim-women-denied-right-to-
divorce/9632772

'I'm not his property': Abused Muslim women

denied right to divorce
Women apply for most Islamic divorces in Australia, but imams often refuse to grant them. Muslim leaders have
condemned domestic violence, though some still teach that husbands can control their wives.

By Hayley Gleeson with Julia Baird

Additional reporting by Sarah Malik
Illustrations by Amani Haydar

Updated about 10 hours agoWed 18 Apr 2018, 11:43am

See also:
p1 19-4-2018 © G. H. Schorel-Hlavka O.W.B.
INSPECTOR-RIKATI® about the BLACK HOLE in the CONSTITUTION-DVD
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 Exposing the darkness within: Islam and domestic violence

Shattering the Silence: Australians tell their stories of surviving domestic violence in the Church

'Their cross to bear': The Catholic women told to forgive domestic abuse

Raped, tracked, humiliated: Clergy wives speak out about domestic violence

The secret scourge of family violence and murder in Australian Hindu and Sikh communities

It amazes me how at times we can be so backwards in legislative provisions such as failing to

provide appropriate legislation to ensure that women have equal rights as men in ‘religious’ or
other form of non-legal marriages (relationships).
Regardless if one belong to a religious faith or not as long as one is not a third person in a legal
marriage one can enjoy being in a religious/secular marriage all you like.
In my view, the legal marriage is generally held to be where 2 people are living together for a
certain period of time, being it at intervals or permanently like a de-facto legal marriage or a
legal marriage.
Social Security has made known that it will regard those living in a religious marriage but not
legally married as de facto wives. As such up yours with the federal legislation that was a
between one man and one woman and now between two persons as Centrelink in violation of this
Commonwealth legislation will nevertheless take other partners in the relationship to be
wives/partners.
In principle however the Commonwealth deals only with a legal marriage and s116 of the
Commonwealth of Australia Constitution Act 1900 (UK) prohibits it to deal with religious or
non-religious non-legal marriages.
Regardless the states purportedly having referred legislative powers over non-legal marriages
such as De Facto relationship to the Commonwealth I hold that there is no constitutional validity
in this unless each state by way of State Referendum had obtained approval of the state electors
to do so. I will not go into details about this as it would take reams of paper to do so, save to say I
have written and published it at www.scribd.com/inspectorrikati blog.
Because of s116 the Commonwealth neither the States in any event couldn’t circumvent Section
116 of the constitution, as much as I view the sale of the State Bank to the Commonwealth
cannot circumvent the constitution to allow a State to create another state Bank.
Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
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
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 occupy a few minutes in discussing it.
QUOTE

Hansard 1-3-1898 Constitution Convention Debates

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-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

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 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.

END QUOTE

HANSARD 10-03-1891 Constitution Convention Debates

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

French J of WA (later French CJ HCA) acknowledged that while the constitution provides that
the Commonwealth can accept a reference of legislative powers Section 51(xxxvii) did not give
this power to the states to do so.
It is a State referendum that is needed to avoid a clash in separation of powers. I will not go into
further details on this as again not wanting to get into reams of paperwork. See my blog!
Hansard 7-3-1898 Constitution Convention Debates
QUOTE
Sir EDWARD BRADDON (Tasmania).-I have an amendment to move on behalf of Tasmania, and also an
amendment of my own. The clause we have before us says that a state shall not make any law prohibiting the
free exercise of any religion. It is quite possible that this might make lawfull practices which would otherwise
be strictly prohibited. Take, for instance, the Hindoos. One of their religious rites is the "suttee," and
another is the "churruck,"-one meaning simply murder, and the other barbarous cruelty, to the
devotees who offer themselves for the sacrifice.
Dr. COCKBURN.-The Thugs are a religious sect.
Sir EDWARD BRADDON.-Yes. If this is to be the law, these people will be able to practise the rites
of their religion, and the amendment I have to suggest is the insertion of some such words as these:-
But shall prevent the performance of any such religious rites, as are of a cruel or demoralizing
character or contrary to the law of the Commonwealth.
END QUOTE

The Framers of the Constitution did recognise that at times legislation may be needed to be
created and that s116 did not bind the states but only the Commonwealth. And the
commonwealth could legislate within criminal provisions for a matter to be a crime regardless
this was claimed to be a religious exercise. Hence, the Commonwealth could outlaw
circumcision to every extend it deems appropriate as a violation of the rights of the person
regardless if a child or adult. Likewise the Commonwealth could legislate that keeping a person
in a form of imprisonment (religious and/or secular) could be an act of slavery and so unlawful.
Hansard 2-3-1898 Constitution Convention Debates
QUOTE

Mr. FRASER (Victoria).-I think that if we give the right to an infinitesimal minority to come here and
indulge in extraordinary practices, under the pretence that this is a new religion, we may have all the
theatres and all the music-halls in Australia open on Sundays. If that is possible we ought to do what
we can to provide against it.

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
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 intolerance which they have there. I ask honorable members how I shall face that difficulty? There is a grave
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,
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.

END QUOTE

Hansard 2-3-1898 Constitution Convention Debates

QUOTE
Mr. HIGGINS.-The particular danger is this: That we do not want to give to the Commonwealth
powers which ought to be left to the states. The point is that we are not going to make the Commonwealth a
kind of social and religious power 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 any
Sunday law it likes under my scheme.
END QUOTE

In my view a State can legislate as to non-legal marriages as much as it likes provided it does not
clash with Commonwealth legislative powers.
.
Quite frankly it is beyond me why the States/Territories (as quasi states) have not mastered to
provide for appropriate legislation that any non-legal relationship (marriage or whatever they are
referred to) being religious or secular can be subject to certain procedures.
Within that context the States/Territories could legitimately provide for a certain procedure to be
followed in a similar manner as is used by the FAMILY COURT OF AUSTRALIA in regard of
divorce for a legal marriage.
Hence, the State/Territory can stipulate that where a party in a religious/secular relationship
(non-legal marriage) desires to end this relationship in a formal religious/secular manner than a
formal application is made to a religious person who is authorised to provide for a religious
relationship (non-legal marriage) but regardless of this a person in a religious or secular
relationship (non-legal marriage) may file with a Magistrates Court or other body so provided for
by the State/Territory legislation of a discontinuation of such religious/secular (non-legal
marriage) and the filing of this shall be held to be the initiation of the separation of the parties
albeit a copy shall have to be served upon the other party and evidence of this to be filed
subsequently with the court or other nominated body, after which at the expiry of 30 days the
separation shall be deemed final. If the other party served with the application/notification
objects then this must be filed within 21 days of having been served with the application.
Where no objection is filed then the court or other body may formally rule that the
religious/secular relationship (a non-legal marriage) is terminated.
This can be applied regardless if the persons involved are in a legal marriage, this as the legal
marriage stands apart of a religious/secular relationship (non-legal marriage).
To some effect it might be far more convenient for the FAMILY COURT OF AUSTRALIA if a
religious/secular relationship (non-legal marriage) was at an end before a divorce of a legal
marriage came before the court, this as then the issue of religious bring up might be left to the
custodian parent.
What we would have is that instead of the reported problems of in particular women who were
legally divorced still being subjected to conditions of a religious/secular relationship (non-legal
marriage.
Technically a person can be in a legal marriage with one other person but be in a relationship
(non-legal marriage) with dozens of others. And the fact that Centrelink ac knowledge religious
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relationships (non-legal marriages) to be deemed as a De Facto marriage is causing the problem
for many women that regardless of not being legally married they are held captive, such as that
any monies paid to them by Centrelink nevertheless belongs to the husband. (At least in religious
application). As such a husband can oppose a divorce for his own personal financial interest and
in the process undermines the very purpose Centrelink (welfare payments) are made to a mother
and her children. As such Centrelink is undermining the very legal provisions for which they
were enacted.
Hansard 7-2-1898 Constitution Convention Debates
QUOTE Mr. HIGGINS.-
"religion is ever a matter between God and the individual; the imposing of religious tests hath been the
greatest engine of tyranny in the world."
END QUOTE

It ought to be clear that ‘religion is ever a matter between God and the individual’ should be precisely
kept this meaning and not that a person use religion to terrorise/enslave another person against
his/her will.
It might very well be that an Iman or for that any other religious person may desire a religious
relationship (a non-legal marriage) to be kept intact for whatever reason but then the Iman or
other person must be bound to follow prescribed procedures and if failing to resolve the issue
within 30 days that the application was filed then must provide a declaration to the Court that he
was unable to resolve the matter and it now is for the court to make determination. It means that
an Iman or other religious person must when a person files an application for a dissolution of a
religious relationship (non-religious marriage) must provide the person filing this with a receipt
that is dated with the date of filing and mark the application likewise.
It means that a woman seeking to dissolve the religious relationship (non-legal marriage) can but
doesn’t have to involve an Iman or other religious office holder where the woman feels it
inappropriate to do so. Further the legislation should provide for a man the same procedures so
that a male cannot merely unilaterally make a statement to just like that end a relationship
without any say by the woman.
No woman should be held captive/tormented to a religious/secular relationship (non-legal
marriage) that may also cause her to lose her faith in her religion/secular beliefs.
One the States/Territories enact as a matter of urgency legal procedures for religious/secular
relationships (non-legal marriages) then the amount of intervention orders required may
drastically reduce because men who now maintain their superiority over a woman may then face
reality it is over.
Obviously this PRESS RELEASE cannot deal with every issues of such required legislation but
at least ought to be some guidance of a badly overdue required legislation.
This correspondence is not intended and neither must be perceived to state all issues/details.
Awaiting your response, G. H. Schorel-Hlavka O.W.B. (Gerrit)
MAY JUSTICE ALWAYS PREVAIL® (Our name is our motto!)

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