Dr John Myers 10-12-2010

39 Balaclava Road
5 Balaclava, Vic
AND TO WHOM IT MAY CONCERN
VCAT & DUE PROCESS OF LAW - etc
John,

10 I may pass on a comment my wife Olga made that Jews are to assist each other and therefore as a
Jew you acted in the circumstances appropriately assisting this woman to get out of hospital.
.
The question then is did the Medical Board and/or VCAT consider this issue as such?
If you have a religious commitment to look after another person who is Jewish then the medical
15 board and/or VCAT if not having considered this made an error in law by failing to consider
something like that which was very relevant to the issue at hand.
.
The next point is that the constitution specifically separated the executives, the judiciary and the
Parliament. As a tribunal is not part of the judiciary but is in fact an organ of the government
20 then this cannot be deemed to be an independent court. As VCAT has that it is not bound to the
rules that ordinary applies to a court it therefore undermines an accused of his/her rights ordinary
provided for if the trial was in a court. In fact VCAT can somehow operate as a STAR
CHAMBER COURT demanding answers whereas this is in conflict of the Imperial
Interpretation Application Act 1980 (Vic) which holds any STAR CHAMBER COURT kind
25 of proceedings to be unlawful.
.
VCAT by its nature not operating as a court and demanding answers and disregarding proper
legal procedures clearly is not a court and therefore any appeal now limited to appeals on errors
of law is a gross denial of NATURAL JUSTICE because it denies a review DE NOVO before a
30 COURT OF LAW. In my view a review DE NOVO is an essential element to allow a tribunal to
operate. Without a review De Novo the right of DUE PROCESS OF LAW is not provided for,
this as a judicial officer of a tribunal can totally misconstrue matters but then still if not making
an error in law can be deemed to apply his discretionary decision.
As much as a Magistrates court decision is reviewable DE NOVO before the County Court of
35 Victoria then I view likewise a VCAT (Victorian Civil and Administrative Tribunal) decision
must be reviewable DE NOVO before the Supreme Court of Victoria.
.
Because the constitution has embedded separation of the judiciary, then it cannot be held that a
limited appeal upon errors of law only allow DUE PROCESS OF LAW because the basics of
40 the trial before a tribunal denied the impartial (separation) of the trial as it is before or under the
directions of a government body.
.
While the s.101 Inter-State Commission was permitted to make decisions and then an appeal lies
to the High Court of Australia on errors of law only, it should be kept in mind that this related to
45 issues of State matters as to trade and commerce and not to individual. Always was it held that
other matters against a individual would be before a court of law. Indeed, VCAT as a tribunal is
not a court invested with federal jurisdiction.
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 .
Held that a State Court exercising federal jurisdiction when it erroneously applies
Commonwealth Act to subject matter before the Court. Commonwealth v Cole, (1923) 32
C.L.R. 602 and Commonwealth v Dalton, (1924) 33 C.L.R.. 452; 30 A.L.R. 85
5 .
If ever you are again faced to be before VCAT the moment you claim, rightly or wrongly, federal
issues, such as your federal constitutional rights, then automatically it is a federal trial and VCAT
is not a tribunal invested with federal jurisdiction and therefore cannot proceed hearing the
matters then but the matter then must be transferred to a court of law that can invoke federal
10 jurisdiction.

The High Court of Australia held that where a party pleads the non-application of a State Act
because of Commonwealth legislation then the State Court is exercising Federal jurisdiction.
(However only if the State Court can invoke jurisdiction, which VCAT cannot and neither is a
15 court!) Troy v Wrigglesworth (1919) 26 C.L.R. 305; 25 (1926) 38 C.L.R. 441; 33 A.L.R. 66.
.
Held by the High Court of Australia (Williams J.) that under this section 40 of the Judiciary Act
1903 the Attorney-General for the Commonwealth or a State may apply for the removal into the
High Court of a cause or part of a cause whether or not he is a party to the proceedings in which
20 the cause arises, and if the cause really and substantially arises under the Constitution or involves
its interpretation, the court MUST grant the removal as of right notwithstanding that the matter is
apparently concluded by authority. Any distinct and divisible question may be “part” of such a
cause within the meaning of this section. In re an Application by the Public Service Association
of N.S.W. , (1947) 75 C.L.R. 430
25 .
This refers to “the court” and not a “tribunal” and as such it must be clear that a tribunal was
never intended to deal with such matters but clearly it occurs often and then the issue is can one
hold that a tribunal can circumvent the constitutional and other legal rights of a citizen or that for
this also the tribunal usage is not permissible? In my view, tribunals are not a form of court of
30 law and therefore can only validly be operating if an “appeal DE NOVO” is permitted and is not
limited to an appeal on errors of law only. Therefore, I view that the case was insufficiently
argued both before the Supreme Court of Victoria and your “leave to appeal” to the High Court
of Australia! Consider also some of the following;
.
35 Judiciary Act 1903 (Cth)

39 Federal jurisdiction of State Courts in other matters

QUOTE
(1) The jurisdiction of the High Court, so far as it is not exclusive of the jurisdiction of
any Court of a State by virtue of section 38, shall be exclusive of the jurisdiction of
40 the several Courts of the States, except as provided in this section.
(2) The several Courts of the States shall within the limits of their several jurisdictions,
whether such limits are as to locality, subject-matter, or otherwise, be invested with
federal jurisdiction, in all matters in which the High Court has original jurisdiction or
in which original jurisdiction can be conferred upon it, except as provided in section
45 38, and subject to the following conditions and restrictions:
(a) A decision of a Court of a State, whether in original or in appellate jurisdiction,
shall not be subject to appeal to Her Majesty in Council, whether by special
leave or otherwise.

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 Special leave to appeal from decisions of State Courts though State law prohibits
appeal
(c) The High Court may grant special leave to appeal to the High Court from any
decision of any Court or Judge of a State notwithstanding that the law of the
5 State may prohibit any appeal from such Court or Judge.

Exercise of federal jurisdiction by State Courts of summary jurisdiction

(d) The federal jurisdiction of a Court of summary jurisdiction of a State shall not
be judicially exercised except by a Stipendiary or Police or Special Magistrate,
or some Magistrate of the State who is specially authorized by the
10 Governor-General to exercise such jurisdiction, or an arbitrator on whom the
jurisdiction, or part of the jurisdiction, of that Court is conferred by a prescribed
law of the State, within the limits of the jurisdiction so conferred.
END QUOTE
.

15 39A Federal jurisdiction invested in State Courts by other provisions

QUOTE
(1) The federal jurisdiction with which a Court of a State is invested by or under any
Act, whether the investing occurred or occurs before or after the commencement of
this section, including federal jurisdiction invested by a provision of this Act other
20 than the last preceding section:
(a) shall be taken to be invested subject to the provisions of paragraph (a) of
subsection (2) of the last preceding section; and
(b) shall be taken to be invested subject to the provisions of paragraphs (c) and (d)
of that subsection (whether or not it is expressed to be invested subject to both
25 or either of those provisions), so far as they are capable of application and are
not inconsistent with a provision made by or under the Act by or under which
the jurisdiction is invested;
in addition to any other conditions or restrictions subject to which the jurisdiction is
expressed to be invested.
30 (2) Nothing in this section or the last preceding section, or in any Act passed before the
commencement of this section, shall be taken to prejudice the application of any of
sections 72 to 77 (inclusive) in relation to jurisdiction in respect of indictable
offences.
END QUOTE
35 .
From the above it already ought to be clear that a State Court, subject to certain provisions, can
exercise Federal jurisdiction.
.
QUOTE Edwin Hale v. William Henkel, 201 U.S. 43, 26 S. Ct. 370, 50 L. Ed. 652 (1906)
40 The individual may stand upon his Constitutional Rights as a citizen.
He is entitled to carry on his private business in his own way. ..His Rights
are such as existed by the ‘law of the land’ [Common Law] long antecedent
to the organization of the State, and can only be taken away from him by
due process of law, and in accordance with the Constitution. He owes nothing
45 to the public so long as he does not trespass upon their Rights.
END QUOTE
.
http://www.austlii.edu.au/cgi -
bin/sinodisp/au/cases/cth/HCA/2003/65.html? stem=0&synonyms=0&query="State%20land%20tax"#fn9

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 Paliflex Pty Ltd v Chief Commissioner of State Revenue (NSW) [2003] HCA 65; 219 CLR 325;
202 ALR 376; 78 ALJR 87 (12 November 2003)
QUOTE
An enactment under the Constitution may not of course be used to construe the
5 Constitution,
END QUOTE
.
Hansard 25-3-1897 Constitution Convention Debates (Official Record of the Debates of the
National Australasian Convention)
10 QUOTE
Mr. O'CONNOR: You cannot ask a judge to serve two masters.
END QUOTE
Where the President of VCAT and Deputy Presidents are actually sitting judges of the County
Court of Victoria then their oath of impartiality is compromised where as a Member of VCAT
15 they are to serve the government’s agenda.
.
Hansard 1-2-1898 Constitution Convention Debates (Official Record of the Debates of the
National Australasian Convention),
QUOTE Mr. OCONNER (New South Wales).-
20 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
.
25 Clearly where VCAT judicial officers are both judges of a court as well as serving at VCAT then
their independence being compromise then cannot exercise judicial powers, and neither should
any tribunal because a government body should never be permitted as such to exercise or quasi
exercise judicial powers in the manner VCAT purports to do because VCAT was deliberately put
together to circumvent judicial processes.
30 .
Director of Public Prosecutions v Serratore Nos. Ca 40642/95 and Crd 72680/95 Criminal
Law and Procedure - Statutes - Human Rights - Telecommunications - Law Reform [1995]
NSWSC 154 (14 November 1995)
QUOTE
35 "It is well established that the Court should not impute to the legislature an intention to
interfere with fundamental rights, freedoms or immunities; such an intention must be
clearly manifested by clear and unmistakable language: Coco v The Queen [1994] HCA 15;
(1994) 179 CLR 427 at 436-437. ... The close link between the fundamental right to be
secure against trespass and the right to privacy is illustrated by the observations by Lord
40 Scarman in Morris v Beardmore (1981) AC 446 ... Parliament itself has ... recognised, in
the context of telecommunications, the fundamental importance of protecting individual
privacy, although also recognising that the value of privacy can be over-ridden where it
conflicts with other significant community values, provided that detailed safeguards are
observed. The recognition and protection of privacy in the Intercept Act, in my view,
45 justifies a restrictive approach to the construction of the statutory exceptions to the
prohibitions on interception. ... where there is a genuine doubt as to whether the statutory
language authorises the use of intercept information for a particular purpose, that doubt
should be resolved in favour of a narrow, rather than a broad construction of the statutory
authorisation."
50 END QUOTE
.
HANSARD 1-3-1898 Constitution Convention Debates

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 QUOTE Mr. GORDON.-
The court may say-"It is a good law, but as it technically infringes on
the Constitution we will have to wipe it out."
END QUOTE
5 .
Hansard 8-3-1898 Constitution Convention Debates
QUOTE
Mr. GLYNN.-I think they would, because it is fixed in the Constitution. There is no
special court, but the general courts would undoubtedly protect the states. What Mr. Isaacs
10 seeks to do is to prevent the question of ultra vires arising after a law has been passed.

[start page 2004]

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

invalid.
END QUOTE
15 .
HANSARD 8-2-1898 Constitution Convention Debates
QUOTE
Mr. HIGGINS.-I did not say that it took place under this clause, and the honorable
member is quite right in saying that it took place under the next clause; but I am trying to
20 point out that laws would be valid if they had one motive, while they would be invalid
if they had another motive.
END QUOTE
.
HANSARD 17-2-1898 Constitution Convention Debates
25 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.
30 END QUOTE
.
HANSARD 1-3-1898 Constitution Convention Debates
QUOTE
Mr. GORDON.- The court may say-"It is a good law, but as it technically infringes
35 on the Constitution we will have to wipe it out."
END QUOTE
.
Therefore, regardless if the vcaata1998 was deemed for the good of the community it
nevertheless infringed upon the rights of citizen to have a trial before a court of law and as such
40 the vcaata1998 act must be deemed unconstitutional because the decision is not and cannot be
deemed a trial before a court of law where any appeal is limited to errors of law and as such
judicial competence of a court of law to deal with the matters as an appeal De Novo is denied.
.
The following will also make clear that the Framers of the Constitution intended to have CIVIL
45 RIGHTS and LIBERTIES principles embedded in the Constitution;
HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates of
the National Australasian Convention)
QUOTE Mr. CLARK.-
for the protection of certain fundamental rights and liberties which every individual
50 citizen is entitled to claim that the federal government shall take under its protection and
secure to him.
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 END QUOTE
.
HANSARD18-2-1898 Constitution Convention Debates (Official Record of the Debates of
the National Australasian Convention)
5 QUOTE Mr. ISAACS.-
The right of a citizen of this great country, protected by the implied guarantees of its
Constitution,
END QUOTE
.
10 HANSARD 27-1-1898 Constitution Convention Debates
QUOTE
Mr. BARTON.-Our civil rights are not in the hands of any Government, but the
rights of the Crown in prosecuting criminals are.
END QUOTE
15 .
Hansard 8-2-1898 Constitution Convention Debates
QUOTE Mr. ISAACS.-
That very question was dealt with in what are known as the Slaughter House cases in
1872,16 Wallace, 36, and in certain other cases. This is what the court said-
20 The right of a citizen of this great country, protected by the implied guarantees of its
Constitution, to come to the seat of government to assert any claim he may have upon the
Government, to transact any business he may have with it, to seek its protection, to share its
offices, to engage in administering its functions, free access to its sea ports through which
all operations of foreign commerce are conducted, also to the sub-treasuries, land offices,
25 and courts of justice of the several states.
END QUOTE
.
Hansard 8-2-1898 Constitution Convention Debates
QUOTE Mr. OCONNOR.-
30 There is only one portion of the Tasmanian amendment which I think should be preserved,
and I prefer it in the form in which it stands as submitted by the Legislative Assembly of
Tasmania. I think that the only portion of it which it is necessary to preserve is this-altering
the wording slightly so as to make it read as I think it should read-

A state shall not deprive any person of life, liberty, or property without due process
35 of law, or deny to any person within its jurisdiction the equal protection of its laws.

So that any citizen of any portion of the Commonwealth would have the guarantee of
liberty and safety in regard to the processes of law, and also would have a guarantee of the
equal administration of the law as it exists. I think Mr. Isaacs will bear me out, that in the
United States it has been decided that the title to equal treatment under the law does not
40 mean that you cannot make a law which differentiates one class of the community from
another; but, as has been decided, it means that in the administration of the laws you have
made, all the citizens shall be treated equally. And that should be so. Whatever privilege
we give to our citizens, the administration of the law should be equal to all, whatever
their colour. The case I refer to is one of the Chinese cases-I forget the name of it.

45 Mr. ISAACS.-The case of Yick Wo v. Hopkins.

END QUOTE

Hansard 8-2-1898 Constitution Convention Debates

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 QUOTE
Mr. ISAACS.-Yes, because we decided in transferring the provision in clause 53 to
clause 52 to leave the states full power to legislate until overborne by federal legislation. If
we retain this provision that no state is to be permitted under any circumstances to pass
5 such a law, then what we have decided to be concurrent legislation becomes exclusive
legislation on the part of the Federal Parliament. On that ground, and for the reasons I have
stated, I say that we ought not to insert this provision as to the equal protection of the laws.
That is a phrase that at once commands approbation, but when it comes to be practically
applied it raises up almost insuperable difficulties. With regard to the other part of the
10 clause, about due process of the law, there is an equal difficulty. I understand that Mr.
O'Connor proposes to introduce that portion. What necessity is there for it? Under our
state Constitutions no attempt has ever been made to subject persons to penalties
without due process of law.

[start page 688]

15 That provision was likewise introduced into the American Constitutions to protect the
negroes from persecution, and dozens of cases have been brought in the United States
courts to ascertain what was meant by due process of law. At one time it was contended
that no crime could be made punishable in a summary way, but that in every case
there would have to be an indictment and a trial by jury. That was overruled, and it was
20 held that you might have process by information. If we insert the words "due process of
law," they can only mean the process provided by the state law. If they mean anything else
they seriously impugn and weaken the present provisions of our Constitution. I say that
there is no necessity for these words at all. If anybody could point to anything that any
colony had ever done in the way of attempting to persecute a citizen without due
25 process of law there would be some reason for this proposal. If we agree to it we shall
simply be raising up obstacles unnecessarily to the scheme of federation. I hope, therefore,
that Mr. O'Connor will not press his amendment.

The amendment was agreed to.

Mr. OCONNOR (New South Wales). I beg now to move-

30 That the following words be inserted after the word "not"-"deprive any person of life,
liberty, or property without due process of law."

Dr. COCKBURN (South Australia).-Why should these words be inserted? They

would be a reflection on our civilization. Have any of the colonies of Australia ever
attempted to deprive any person of life, liberty, or property without due process of
35 law? I repeat that the insertion of these words would be a reflection on our civilization.
People would say-"Pretty things these states of Australia; they have to be prevented by a
provision in the Constitution from doing the grossest injustice."

Mr. OCONNOR (New South Wales).-I have mentioned before the reasons, and they
appear to me to be very strong, why these words should be retained. The honorable
40 member will not deny that there should be a guarantee in the Constitution that no
person should be deprived of life, liberty, or property without due process of law. The
simple object of this proposal is to insure that no state shall violate what is one of the first
principles of citizenship.
Mr. KINGSTON.-Is there not that guarantee now?

45 Mr. OCONNOR.-I do not think so. We are making a Constitution which is to endure,
practically speaking, for all time. We do not know when some wave of popular feeling may
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 lead a majority in the Parliament of a state to commit an injustice by passing a law that
would deprive citizens of life, liberty, or property without due process of law. If no state
does anything of the kind there will be no harm in this provision, but it is only right that
this protection should be given to every citizen of the Commonwealth.
5 Sir JOHN FORREST.-Would not the Royal assent be withheld?

Mr. OCONNOR.-I do not know that it would. The Royal assent is practically never
refused to any Bill that deals with our own affairs, and it is highly improbable that it would
be refused under any circumstances.

Mr. ISAACS.-Suppose a state wanted land for railway purposes, and took it
10 compulsorily, there being a provision in one of the statutes that the amount to be paid
should be determined by arbitration, would not that be taking the land without due process
of law?

Mr. OCONNOR.-No, it would not; and, as an honorable member reminds me, there is a
decision on the point. All that is intended is that there shall be some process of law by
15 which the parties accused must be heard.

Mr. HIGGINS.-Both sides heard.

Mr. OCONNOR.-Yes; and the process of law within that principle may be [start page
689] anything the state thinks fit. This provision simply assures that there shall be some
form by which a person accused will have an opportunity of stating his case before being
20 deprived of his liberty. Is not that a first principle in criminal law now? I cannot understand
any one objecting to this proposal.

Dr. COCKBURN-Very necessary in a savage race.

Mr. OCONNOR.-With reference to the meaning of the term due process of law, there is
in Baker's Annotated Notes on the Constitution of the United States, page 215, this
25 statement-

Due process of law does not imply that all trials in the state courts affecting the property
of persons must be by jury. The requirement is met if the trial be in accordance with the
settled course of judicial proceedings, and this is regulated by the law of the state.
If the state law provides that there shall be a due hearing given to the rights of the parties-

30 Mr. BARTON.-And a judicial determination.

Mr. OCONNOR.-Yes, and a judicial determination-that is all that is necessary.

Mr. ISAACS.-What is the good of it? It is an admission that it is necessary.

Mr. OCONNOR.-Surely we are not to be prevented from enacting a guarantee of

freedom in our Constitution simply because imputations may be cast upon us that it is
35 necessary. We do not say that it is necessary. All we say is that no state shall be allowed to
pass these laws.

Mr. ISAACS.-Who asks for the guarantee?

Dr. COCKBURN.-The only country in which the guarantee exists is that in which its
provisions are most frequently violated.

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

Mr. OCONNOR-That is one of those suppositions that are against the first instincts of
humanity.

Mr. GORDON.-So is this.

10 Mr. OCONNOR.-No, it is not. We need not go far back in history to find cases in which
the community, seized with a sort of madness with regard to particular offences, have set
aside all principles of justice. If a state did behave itself in that way, why should not the
citizens of the Commonwealth who did not belong to that state be protected? Dr. Cockburn
suggested in so contemptuous a way that there could be no reason for this amendment, that
15 I got up to state again what had been stated before.

Dr. COCKBURN.-Not contemptuous.

Mr. OCONNOR.-I know the honorable member meant nothing personal, but I thought it
necessary to state the reasons of what, had it not been for the honorable member's
statement, would have seemed to be a perfectly obvious proposition. Mr. Clark, of
20 Tasmania, thought the amendment of importance, and pointed out that it had been put in the
United States Constitution. It should also be put in this Constitution, not necessarily as an
imputation on any state or any body of states, but as a guarantee for all time for the citizens
of the Commonwealth that they shall be treated according to what we recognise to be the
principles of justice and of equality.
25 END QUOTE
.

MAY JUSTICE ALWAYS PREVAIL®

.
Our name is our motto!
30 .

Awaiting your response, G. H. Schorel-Hlavka

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