120802 Attorney General Jarrod Bleijie

7/31/2019 120802 Attorney General Jarrod Bleijie

1/27

Page 1

p1 2-8-2012 G. H. Schorel-Hlavka O.W.B.INDEPENDENT Consultant (Constitutionalist) to; FOLEYS LAWYERS, Email: [email protected]

INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD

A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0

PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, by fax

0011-61-3-94577209 or E-mail [email protected] See also www.schorel-hlavka.com

WITHOUT PREJUDICEThe Right Honourable Jarrod Bleijie Attorney-General 2-8-2012

Parliament House, Brisbane, Qld.

[email protected]

CC: The Right Honourable Michael Atkinson Attorney-General

Parliament House, Adelaide, S.A. Email: [email protected]

The Right Honourable R Clark Attorney-General10Victoria. Parliament House, Melbourne, Victoria. Email: [email protected]

The Right Honourable Corbell, Attorney-General

A.C.T. Parliament House, Canberra A.C.T. Email: [email protected]

15The Right Honourable Knight Attorney-General

Parliament House, Darwin, N.T. Email: [email protected]

The Right Honourable Porter Attorney-GeneralParliament House, Perth W.A. Email: [email protected]

The Right Honourable Nicola Roxon Attorney-General of the Commonwealth of Australia

Parliament House, CANBERRA ACT 2600 Email: [email protected]

The Right Honourable Smith Attorney-General25Parliament House, Sydney. N.S.W. Email: [email protected]

The Right Honourable B Wightman Attorney-General

Parliament House, Hobart, Tas Email: [email protected]

30The Right Honourable Attorney-General

Parliament House, Northfolk Island. Email: [email protected]

Mr Kevin Foley, principal FOLEYS LAWYERS, [email protected]

120802-Mining etc

Sir,

I am a CONSTITUTIONALIST and not a lawyer, as such I present matters as to reflect the

true meaning and application of the Constitution.40

Hansard17-9-1897Constitution Convention Debates (Official Record of the Debates of the National

Australasian Convention)QUOTE The Hon. E. BARTON:

Is it necessary to go on to "the service and execution throughout the commonwealth of the civil and

criminal process, the influx of criminals, and external affairs and treaties" Of course these are purely45national matters, and I think this is where My Right Hon. friend stopped short.

END QUOTE

Below I have set out certain quotations which may underline that any so called mining tax (or

large corporations tax or whatever it desires to call it) by the Commonwealth would be50


2/27

Page 2






unconstitutional. While the High Court of Australia in the Franklin Dam (Tasmania) case held

that s51(xxx) external affairs could be used, the truth is that as shown below the Framers of the

Constitution didnt hold this position at all. They held it was a national matter and not an internal

state matter that they would be dealing with. It would be an absurdity to argue that a dam in the

Franklin River somehow would have any kind of impact upon what goes on in other States.5

This correspondence is not intended and neither must be perceived to deal with all relevant

details/issues but safe to say makes it clear that Crown land specifically remained under state

legislative powers. It may also be understood that the Framers of the Constitution specifically

refused to give the Commonwealth legislative powers as to environment as it held this should be10

left with the States.

We have for example that in the state of Victoria the Federal Government interferes with grazing

on Crown land as if it has any jurisdiction over it. In my view it has none whatsoever.

.15

The mistake often is made that somehow the political entity in power of a State may or may not

allow Commonwealth interference, whereas it should be conducted irrespective of which

political party is in power of a State.

What we should consider is that not only there should be no interference with Crown land but20

neither any taxation upon Crown land rights.

.

Commonwealth of Australia Constitution Act 1900 (UK)QUOTE

114 States may not raise forces. Taxation of property of Commonwealth or State25A 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 Commonwealth, nor shall the

Commonwealth impose any tax on property of any kind belonging to a State.

END QUOTE

30

While the Commonwealth has legislative powers as to

Commonwealth of Australia Constitution Act 1900 (UK)

QUOTE

(xx) foreign corporations, and trading or financial corporations35formed within the limits of the Commonwealth;

END QUOTE

It should be noted however that nothing was to stop me to conduct a mining enterprise without

being a corporation, and as such to hold that somehow any so called mining tax would be40

applicable to some corporation but not to a partnership or a single individual would be absurd in

constitutional context, as shown below also.

The Framers of the Constitution debated the following:

.45Hansard 12-3-1891 Constitution Convention DebatesQUOTE Mr. ABBOTT:

The first resolution clearly points out that we are not to interfere with territorial rights; but what I

want to be clear about in this colony of New South Wales is that this expression means that there is to

be no interference with ourCrown lands. I know, and every member of theConventionknows as well as50I do, that it is not intended that the Crown landsof anyone of the colonies shall be interfered with by

the federal parliament; yet, this is a bogey that has been raised up outside to frighten the people of this

colony into opposition to the proposed federation. In this country-at all events outside the city, thepeople are most concerned about the settlement of our Crown lands-the occupation and the acquisition


3/27

Page 3






of them-and nothing in this world, to my mind, could more prejudice the proposal for federation than

to assert that ourCrown landsare to be taken away from us and given to those colonies which have no Crown landsat all. I say it was never intended by any of those who initiated this Conventionthat such a

state of things should be carried out, and, speaking on behalf of this colony, I say that it is a state of

things that would not be tolerated for one moment. I hope there will be no misunderstanding outside.5OurCrown landsare to be our own, and the Crown [start page 303] lands of the other colonies will, I

take it, be their own. What surprised me-talking ofCrown lands-was the utterance of the hon. member,

Sir James Lee-Steere, that if the Government of Western Australia hands her customs duties over to

the federal government then she would not have anything with which to pay her debt or the interest on

that debt. Now, Western Australia has the largest territory in the whole of the Australian colonies, and I10 presume that Western Australia is not going to allow that territory to remain as it is at the present time. Ipresume that Western Australia expects to lease or sell that land, and to construct her public works out

of the proceeds of it. I am sure that the colonies on the eastern seaboard hope that that will be one of

the results of the responsible government which has been so recently granted to Western Australia.

What is the use of their lands, what is the use of their trying to carry out public works, if they cannot at15the same time get a population to settle upon their lands?

END QUOTE

.Hansard 8-2-1898 Constitution Convention DebatesQUOTE20

Mr. SYMON.-Yes. Mr. Wise asked why should New South Wales or Victoria-to take a case which is

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 controlof 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 the25particular administration of its own lands, or of anything that is left to it for the exercise of its power

and the administration of its affairs.

END QUOTE

Because there are often intentions for seeking to find something in the Constitution that never30

existed (consider WorkChoices) it is imperative to understand the principles upon which the

constitution was build.

.

Hansard 19-4-1897Constitution Convention DebatesQUOTE35

Mr. CARRUTHERS:

This is a Constitution which the unlettered people of the community ought to be able to understand. END QUOTE

.

Hansard8-3-1898Constitution Convention Debates (Official Record of the Debates of the National Australasian40Convention)

QUOTE Mr. ISAACS.-

We want a people's Constitution, not a lawyers' Constitution.

END QUOTE

45Therefore the Constitution and the Hansard Debates records must be read in the ordinary

language and not that it is read as a lawyer trying to infringe and twist the true meaning of the

constitution.

Hansard22-2-1898 Constitution Convention Debates50

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 hasdescribed, of choosing or setting up a code of laws to interpret the common law of England. This

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 or55rejection. It is the whole body of the people whose understanding you have to bring to bear upon it, and


4/27

Page 4






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

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.5

END QUOTE

.

Hansard 31-1-1898 Constitution Convention Debates (Official Record of the Debates of the National

Australasian Convention)

QUOTE Mr. SOLOMON.-10We shall not only look to the Federal Judiciary for the protection of our interests, but also for the just

interpretation of the Constitution:END QUOTE

.

Hansard 1-2-1898 Constitution Convention Debates (Official Record of the Debates of the National15Australasian Convention),

QUOTE Mr. OCONNER (New South Wales).-

Because, as has been said before, it is [start page 357] necessary not only that the administration of

justice should be pure and above suspicion, but that it should be beyond the possibility of suspicion;END QUOTE20.

Hansard 8-3-1898 Constitution Convention Debates

QUOTESir JOHN DOWNER.-Now it is coming out. The Constitution is made for the people and the states on

terms that are just to both.25END QUOTE

.

We also have that legislation may seem to be valid, such as the CARBON TAX as a form of

taxation but the motives are not to raise taxation at all but rather for a CARBON PRICE, as the

political argument so is about to put some kind of price on the carbon emission, that I view it30

is outside the legislative powers of the Commonwealth of Australia. The motive of putting a

carbon price on emissions is not a form of taxation for taxation purposes and in fact the media

reports are that the Commonwealth of Australia would be losing revenue for this. Moreover, that

the monies are to be used for non-constitutional purposes.We therefore have to consider the following also;35

HANSARD 8-2-1898Constitution Convention Debates

QUOTE

Mr. HIGGINS.-I did not say that it took place under this clause, and the honorable member is quite right in

saying that it took place under the next clause; but I am trying to point out that laws would be valid if40they had one motive, while they would be invalid if they had another motive.

END QUOTE

.HANSARD 1-3-1898Constitution Convention Debates

QUOTE45

Mr. HIGGINS.-I understood the honorable member to put himself on the very highest pedestal, and bycontrast to put me on the very lowest. At all events, I feel that if this were carried, an unpopular individual,to 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 persecute50them 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 difficulty there would be in getting the Federal Congress or Federal Executive tointerfere 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 would55see 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 passed which was outside the Constitution. Supposing that a majority of


5/27

Page 5






the state concerned happened to regard the man as unpopular supposing a law were passed that no onebearing 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, with the very best intentions my honorable friend is making the gravest of5mistakes. 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 turnjudicial 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 private persons being able to raise these points, and not the states or10 the Commonwealth, that you keep the judicial bench free from the taint of political partisanship. Ifeel 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 gone beyond the bounds you ought to say-"This thing is15illegal." 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.It is one thing to induce a Government or Parliament to pass an unjust law, and it is quite

another thing to induce a Government for one excuse or another to hold its hand from acting. What I fear is20that you would often induce the Government to withhold its hand from acting, for fear it would incur

opprobrium or unpopularity. I sincerely hope the amendment will not be carried.

END QUOTE

HANSARD 17-2-1898Constitution Convention Debates25QUOTE Mr. OCONNOR.-

We must remember that in any legislation of the Commonwealth we are dealing with the Constitution. Our

own Parliaments do as they think fit almost within any limits. In this case the Constitution will be above

Parliament, and Parliament will have to conform to it. END QUOTE30.

HANSARD9-2-1898Constitution Convention Debates

QUOTE

Mr. HIGGINS.-No, because the Constitution is not passed by the Parliament.

END QUOTE35.HANSARD1-3-1898Constitution Convention Debates

QUOTE

Mr. GORDON.- The court may say-"It is a good law, but as it technically infringes on the Constitution

we will have to wipe it out."40END QUOTE

HANSARD1-3-1898Constitution Convention Debates

QUOTEMr. BARTON.- The position with regard to this Constitution is that it has no legislative power, except45that which is actually given to it in express terms or which is necessary or incidental to a power given.

END QUOTE

The High Court of Australia stated;

50Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi [1999] HCA 27

(17 June 1999)

QUOTE

Constitutional interpretation

1. The starting point for a principled interpretation ofthe Constitutionis the search for the intention of its55makers[51]. That does not mean a search for their subjective beliefs, hopes or expectations. Constitutionalinterpretation is not a search for the mental states of those who made, or for that matter approved or

enacted, the Constitution. The intention of its makers can only be deduced from the words that they used in
http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=%22convention%22+and+%22debate%22+and+%22sydney%22+and+%221891%22+and+%22election%22#fn50http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=%22convention%22+and+%22debate%22+and+%22sydney%22+and+%221891%22+and+%22election%22#fn50http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=%22convention%22+and+%22debate%22+and+%22sydney%22+and+%221891%22+and+%22election%22#fn50http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=%22convention%22+and+%22debate%22+and+%22sydney%22+and+%221891%22+and+%22election%22#fn50http://www.austlii.edu.au/au/legis/cth/consol_act/c167/


6/27

Page 6






the historical context in which they used them[52]. In a paper on constitutional interpretation, presented atFordham 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 - theauthors of the text in question intended to say. That is an exercise in what I have called

constructive interpretation[54]. It does not mean peeking inside the skulls of people dead5for 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."

END QUOTE10

Mining companies or other companies are for this purpose no different than a private person

when it comes to taxation. While as below indicated the Framers of the Constitution had a

difficulty with citizens and corporations nevertheless it generally is held that a Government

or a corporation must be a model citizen. You cannot have that laws that apply to ordinary

citizens, such as littering would not apply to a corporation.15

.Hansard2-3-1898Constitution Convention Debates (Official Record of the Debates of the National


QUOTE

Mr. BARTON.-Yes; and here we have a totally different position, because the actual right which a20 person has as a British subject-the right of personal liberty and protection under the laws-is secured bybeing 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 .

END QUOTE

.25

Hansard1-3-1898Constitution 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 Constitutions empower the colonies separately to make laws for the30

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, ofcourse, 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 is35

actually given to it in express terms or which is

necessary or incidental to a power given.END QUOTE

Hansard 8-2-1898 Constitution Convention Debates40QUOTE

Mr. WISE.-You cannot impose exceptional treatment upon the citizens of another state; that applies

to everything.END QUOTE

.45Hansard 8-2-1898 Constitution Convention DebatesQUOTE Mr. OCONNOR (New South Wales).-

Surely every person who has the suffrage-the right to vote within the Commonwealth-and who lives

within the Commonwealth, is a citizen of the Commonwealth, and entitled to all its privileges, including

the right to take part as the Commonwealth provides in the framing of the laws. 50END QUOTE
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=%22convention%22+and+%22debate%22+and+%22sydney%22+and+%221891%22+and+%22election%22#fn51http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=%22convention%22+and+%22debate%22+and+%22sydney%22+and+%221891%22+and+%22election%22#fn51http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=%22convention%22+and+%22debate%22+and+%22sydney%22+and+%221891%22+and+%22election%22#fn52http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=%22convention%22+and+%22debate%22+and+%22sydney%22+and+%221891%22+and+%22election%22#fn52http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=%22convention%22+and+%22debate%22+and+%22sydney%22+and+%221891%22+and+%22election%22#fn52http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=%22convention%22+and+%22debate%22+and+%22sydney%22+and+%221891%22+and+%22election%22#fn53http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=%22convention%22+and+%22debate%22+and+%22sydney%22+and+%221891%22+and+%22election%22#fn53http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=%22convention%22+and+%22debate%22+and+%22sydney%22+and+%221891%22+and+%22election%22#fn53http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=%22convention%22+and+%22debate%22+and+%22sydney%22+and+%221891%22+and+%22election%22#fn53http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=%22convention%22+and+%22debate%22+and+%22sydney%22+and+%221891%22+and+%22election%22#fn52http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=%22convention%22+and+%22debate%22+and+%22sydney%22+and+%221891%22+and+%22election%22#fn51


7/27

Page 7






.Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the National


QUOTE Mr. CARRUTHERS (New South Wales).-

It does not require a majority of the states to insist that the constitution shall be obeyed, because a5majority of the states cannot by resolution infringe the constitution.

END QUOTE

.

Hence, any purported COAG (Council of Australian Government) decisions such as regarding

anti-terrorist laws neither can be held applicable to undermine the constitutional rights enshrined10in the Constitution.

.

The following will also make clear that the Framers of the Constitution intended to have CIVIL

RIGHTS and LIBERTIES principles embedded in the Constitution;HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National15Australasian Convention)

QUOTEMr. CLARK.-

for the protection of certain fundamental rights and liberties which every individual citizen is entitled to

claim that the federal government shall take under its protection and secure to him.

END QUOTE20.

HANSARD18-2-1898 Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention)

QUOTE Mr. ISAACS.-

The right of a citizen of this great country, protected by the implied guarantees of its Constitution,25END QUOTE

.

HANSARD27-1-1898Constitution Convention DebatesQUOTE

Mr. BARTON.-Our civil rights are not in the hands of any Government, but the rights of the Crown30in prosecuting criminals are.

END QUOTE

.

Hansard1-3-1898Constitution Convention Debates (Official Record of the Debates of the National AustralasianConvention)35QUOTE

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

any law the citizen has his right.40END QUOTE

Hansard 3-3-1898 Constitution Convention Debates (Official Record of the Debates of the National

Australasian Convention),

QUOTE45

Mr. OCONNOR.-He could not be entitled to greater or less privileges than the inhabitants of the stateitself.

END QUOTE

Hansard 8-2-1898 Constitution Convention Debates50

QUOTE Mr. OCONNOR (New South Wales).-

Surely every person who has the suffrage-the right to vote within the Commonwealth-and who lives

within the Commonwealth, is a citizen of the Commonwealth, and entitled to all its privileges, including

the right to take part as the Commonwealth provides in the framing of the laws.

END QUOTE55


8/27

Page 8






.Hansard2-3-1898 Constitution Convention Debates;

QUOTE Dr. QUICK.-

The Constitution empowers the Federal Parliament to deal with certain externalaffairs, among which would

probably be the right to negotiate for commercial treaties with foreign countries, in the same way as Canada5has 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 only act for and on behalf of its citizens.END QUOTE

10Therefore s51(xxx) of the constitution regarding External Affairs cannot give the

Commonwealth of Australia legislative powers where it had none as s51(xxx) only can be

applied to the existing provisions of legislative powers. To hold otherwise would mean the

Commonwealth merely has to make a treaty with some country as to education to take over the

states educational legislative powers.15

.Hansard 1-3-1898 Constitution Convention DebatesQUOTE

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 each20state 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 this25provision 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.END QUOTE

.30Hansard 9-3-1898 Constitution Convention Debates (Official Record of the Debates of the National


QUOTE

Mr. DEAKIN (Victoria).-The position of my honorable and learned friend (Mr. [start page 2092] Higgins)

may be perfectly correct. It may be that without any special provision the practice of the High Court, when35declaring an Act ultra vires, would be that such a declaration applied only to the part which trespassed

beyond the limits of the Constitution. If that were so, it would be a general principle applicable to theinterpretation of the whole of the Constitution.

END QUOTE

40Hansard 8-3-1898 Constitution Convention DebatesQUOTE

Mr. GLYNN.-I think they would, because it is fixed in the Constitution. There is no special court, but thegeneral courts would undoubtedly protect the states. What Mr. Isaacs seeks to do is to prevent the question of

ultra vires arising after a law has been passed.45

[start page 2004]

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

END QUOTE

.

Hansard 6-3-1891 Constitution Convention Debates50QUOTE 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

legislative bodies, whether federal or state legislatures, existing under the constitution.55


9/27

Page 9






END QUOTE.

Hansard 6-3-1891 Constitution Convention DebatesQUOTE Mr. THYNNE:

The constitution of this federation will not be charged with the duty of resisting privileged classes, for5the 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 federalconstitution 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 be10 practically vested in them. They will exercise the sovereignty of the states, they will be charged with thefull 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 authority15conferred upon it by the constitution, but invalid and unconstitutional if they go beyond the limits of

such authority.END QUOTE

The States cannot refer its legislative and/or judicial powers to the Commonwealth without a20

State referendum to approve this. And as such, even if all State legislatures were to enact

legislation it still would fall foul on the constitutional prohibitions if it was not approved by astate referendum. After all to refer legislative powers to the Commonwealth may very well also

mean a different kind of judicial determination where a Federal Court may use different legal

provisions such as the Evidence act. Also, it would undermine the state Courts ability to nullify25

Commonwealth legislation.

HANSARD31-1-1898Constitution Convention DebatesQUOTE

Mr. WISE (New South Wales).-The only class of cases contemplated by this section are offences30committed against the criminal law of the Federal Parliament, [start page 354] and the only cases to

which Mr. Higgins' amendment would apply are those in which the criminal law of the state was in

conflict with the criminal law of the Commonwealth; in any other cases there would be no necessity to

change the venue, and select a jury of citizens of another state. Now, I do not know any power, whether inmodern or in ancient times, which has given more just offence to the community than the power possessed by35an Executive, always under Act of Parliament, to change the venue for the trial of criminal offences, and I donot at all view with the same apprehension that possesses the mind of the honorable member a state of affairs

in which a jury of one state would refuse to convict a person indicted at the instance-of the Federal Executive.

It might be that a law passed by the Federal Parliament was so counter to the popular feeling of a particular

state, and so calculated to injure the interests of that state, that it would become the duty of every citizen to40exercise his practical power of nullification of that law by refusing to convict persons of offences

against it.That is a means by which the public obtains a very striking opportunity of manifesting itscondemnation of a law, and a method which has never been known to fail, if the law itself was

originally unjust. I think it is a measure of protection to the states and to the citizens of the states which

should be preserved, and that the Federal Government should not have the power to interfere and prevent the45citizens of a state adjudicating on the guilt or innocence of one of their fellow citizens conferred upon it by

this Constitution.

END QUOTE

The Family Court of Australia is a clear example how citizens State rights are eroded where the50

Family Court of Australia doesnt use State legislative provisions, and as such the purported

referral of powers regarding financial de facto matter resulted that parties have entered a

considerable different legal litigation arena then what was applicable under State legal

provisions. Indeed, the State Hansards indicate that for example (had the Commonwealth

maintained its refusal to adjudicate in regard of same sex relationships) the State of Victoria55

proposed to continue under its State judicial powers to adjudicate upon same sex relationships


10/27

Page 10






where the Commonwealth at the time refused to do so. As such this would have been that the

Commonwealth would have adjudicated under Federal law for hetero sexual financial de facto

relationships whereas the States under state laws would have adjudicated under state legislative

provisions.

5

This indicates that the states lacked any proper understanding as to what is or can be involved in

a referral of matter and that s51(xxxvii) doesnt provide the States with any authority to refer a

matter as it only provides the commonwealth the right to accept this. It doesnt provide for the

Commonwealth to accept relevant judicial powers because that remains with the State as the

State legislature cannot interfere with the separation of powers and give away State judicial10

powers to the Commonwealth. What therefore is that the State refers a matter for the

Commonwealth to legislate but the State Courts retain their judicial powers and in the process

gain more legislative powers. For example if the is a lack of legislative power between NSAW

and Victoria as to legislate over the whole of the river Murray as their boundary, then the matter

can be referred to the Commonwealth who then for the two States legislate and then each State15

Court invoking federal powers can adjudicate upon the matter and as such either state gained

judicial powers over the whole boundary of the Murray River!

S51(xxxvii) was not and never must be perceived to have been intended for the States to refer an

internal State matter, not being a matter that was outside State judicial powers. Hence thefinancial de facto relationship matter was not one that was outside the State of Victoria20

legislative or judicial power. It means that the states cannot hand over by referral of matter

within s51(xxxvii) Crown land to the Commonwealth for legislative purposes because Crown

land is a separate power within each State.

.

What should be understood is that for example, the Colony of Victoria by its Constitution25

Act1855had a sovereign Parliament that could amend its own constitution. However, upon

federation by referendum approved by the electors within the State of Victoria the Colonial

sovereign Parliament became State constitutional Parliaments who no longer could amend its

own constitutions without the approval by State referendum of the State electors. This as the

States within s106 of the Commonwealth of Australia Constitution Act 1900 (UK) was created30subject to this constitution and therefore subject to all legal principles embedded in the this

constitution!

HANSARD 10-03-1891 Constitution Convention DebatesQUOTE35

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 parliamentary40sovereignty. 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 judiciary45which towers above all powers, legislative and executive, and which is the sole arbiter and interpreter

of the constitution.

END QUOTE.

Hansard 18-3-1891 Constitution Convention Debates50QUOTE

Sir GEORGE GREY: I beg to propose that the following resolution stand as resolution No. 5:-


11/27

Page 11






The inhabitants of each of the states of federated Australasia ought to be allowed to choose, and if they seefit 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

to adopt by the vote of the majority of voters, their own form of state constitution.

END QUOTE5

Commonwealth of Australia Constitution Act 1900 (UK)

QUOTE

123 Alteration of limits of States

The Parliament of the Commonwealth may, with the consent of the Parliament of a State, and the approval10of the majority of the electors of the State voting upon the question, increase, diminish, or otherwise alterthe limits of the State, upon such terms and conditions as may be agreed on, and may, with the like consent,

make provision respecting the effect and operation of any increase or diminution or alteration of territory in

relation to any State affected.

END QUOTE15

It doesnt matter therefore if the State Parliament were to legislate to give away any part of the

state, being it land, legislative , judicial or executive powers it must always be approved by the

State electors.

.20

And this also has a further implication because when it comes to the Commonwealth acquisition

of properties it remains no more but the landlord if it does so without the consent of a state. If it

desires to become the sovereign in right and not merely a landlord then it must obtain the

approval of the State and the State can only do so if there is a State referendum approving this.

.25HANSARD 21-1-1898Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention)

QUOTE

Mr. REID (New South Wales).-I would not have again addressed myself to this question, but for the

importance which it has assumed, especially in view of the haziness in some honorable members'30minds as to the real scope of this c1ause 52. I cannot conceive how any honorable member of this

Convention can fail to understand that all these powers in clause 52 are powers which are inserted

there in order that the Federal Parliament, as soon as possible, shall, make them exclusive powers ofthe Federation. Take the raising of customs, for example.

END QUOTE35

As the Framers of the Constitution made clear (which lengthy debate references I do not include

at this time to avoid this lengthy document not to be come even longer) that if the

Commonwealth desires to exclude State legislative powers it only could do so for so far it had

sovereign powers and not merely the status of a landlord (proprietor). As such, where the40

Commonwealth purchase any land within a State territory the commonwealth powers in so far it

relates to the exercise of Commonwealth legislative powers can then override any existing State

powers but it cannot oust any State powers otherwise applicable.

In the past the South Australian government was defeated by the Commonwealth about toxicwaste dumping, upon which I urged the state of South Australia to appeal the decision upon the45

basis that toxic waste dumping is not a constitutional powers of the Commonwealth, and I

understand that the State of South Australia subsequently succeeded in its appeal.

Actually I understand that the Commonwealth is allowing some private company to use

Commonwealth held territories within South Australia for non-Commonwealth purposes such as

for other countries test flying their planes, etc. In my view this is unconstitutional as it is not a50

constitutional powers within s51 or 52 of the constitution.

The same is the Commonwealth cannot permit its army barracks having bowling facilities to be

used for non-Commonwealth purposes.


12/27

Page 12






.

Perhaps just to give an indication of the misconceptions about how the constitution really applies

we can refer to the Patricks Stevendores dispute, involving the Commonwealth of Australia with

waterside workers. The Framers of the Constitution held that waterside workers would fall within

industrial powers of the Commonwealth but it seems that the then Commonwealth Minister Peter5

Reith and his army of lawyers never were aware of this. So they lost the case where they were

within their rights.

What is therefore essential is that not lawyers are trying to interpret the constitution as to what

they learned during law education band thereafter but that they try to read the constitution for its10

true meaning and application. They may even then learn that Australian citizenship is a term

used by the Framers of the Constitution being a political status one obtain when granted State

citizenship and has absolutely nothing to do with nationality. But that is another story for another

time to tell.

.15Hansard 11-3-1898 Constitution Convention DebatesQUOTE

The CHAIRMAN.-I do not think I can rule this proposed amendment out of order. Every clause, or

nearly every clause, in a Bill in some way qualifies the preceding clauses. They extend the operation of

those clauses, and, in some instances they limit the operation of the clauses. This is not a distinct20negative, and I think it would be unduly curtailing the power of the committee to arrive at such a conclusion

as they may think fit if I ruled this out of order.

END QUOTE.

KING v. JONES ; McEWEN v. HACKERT ; JONES v. JONES. (1972) 128 CLR 22125

Barwick C.J.(1), McTiernan(2), Menzies(3), Walsh(4), Gibbs(5) and Stephen(6)JJ.

QUOTE Barwick C.J.(1)10. There are some basic propositions of constitutional construction which are beyond controversy. The30words ofthe Constitutionare to be read in that natural sense they bore in the circumstances of their enactment

by the Imperial Parliament in 1900. That meaning remains, beyond the reach of any Australian Parliament,subject only to alteration by the means provided bys. 128ofthe Constitution. The connotation of words

employed inthe Constitutiondoes not change though changing events and attitudes may in some

circumstances extend the denotation or reach of those words. These propositions are fully documented in the35reported decisions of this Court which has the task of finally and authoritatively deciding both the connotation

and the denotation of the language ofthe Constitution. (at p229)

END QUOTE

.

Hansard3-4-1891 Constitution Convention Debates40QUOTE Mr. DIBBS:

The intention of the framers of the constitution has been to make the constitution as flexible as possible,

so that arrangements can be made between the various states and the commonwealth when the time

comes to make them.

END QUOTE45.

Hansard 17-3-1898 Constitution Convention Debates

QUOTE Sir EDWARD BRADDON.-

When we consider how vast the importance is that every word of the Constitution should be correct,

that every clause should fit into every other clause; when we consider the great amount of time, trouble,50and expense it would take to make any alteration, and that, if we have not made our intentions clear,

we shall undoubtedly have laid the foundation of lawsuits of a most extensive nature, which will harass

the people of United Australia and create dissatisfaction with our work, it must be evident that too

much care has not been exercised.END QUOTE55.
http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/s128.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/c167/s128.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/c167/s128.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/s128.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/c167/


13/27

Page 13






Hansard 8-2-1898 Constitution Convention DebatesQUOTE

Mr. OCONNOR (New South Wales).-The honorable and learned member (Mr. Isaacs) is I think correct

in the history of this clause that he has given, and this is [start page 672] one of those instances which should

make us very careful of following too slavishly the provisions of the United States Constitution, or any other5Constitution. No doubt in putting together the draft of this Bill, those who were responsible for doing so used

the material they found in every Constitution before it, and probably they felt that they would be incurring agreat deal of responsibility in leaving out provisions which might be in the least degree applicable. But it is

for us to consider, looking at the history and reasons for these provisions in the Constitution of the United

States, whether they are in any way applicable; and I quite agree with my honorable and learned friend (Mr.10 Carruthers) that we should be very careful ofevery word that we put in this Constitution, and that we shouldhave no word in it which we do not see some reason for. Because there can be no question that in time to

come, when this Constitution has to be interpreted, every word will be weighed and an interpretation given to

it; and by the use now of what I may describe as idle words which we have no use for, we may be giving a

direction to the Constitution which none of us now contemplate. Therefore, it is incumbent upon us to see that15there is some reason for every clause and every word that goes into this Constitution.

END QUOTE

In my view, it is utter scandalous to attack mining companies and others, for the wealth they

gained, because their wealth creation has served the Commonwealth of Australia and its people20

well. Those companies would not exist in their current format were it not for the workers within

the company, who earn a livelihood and have the financial and other benefits such companies areproviding to them and from which they pay income tax and other taxes..

Hansard 17-3-1898 Constitution Convention Debates25QUOTE 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

which is unfavorable to the people having this security, it must in its very essence be a free30Constitution. 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

that which we contemplate, and then overload your Constitution with legislative provisions to protect35the 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

one has sought to strengthen. How we or our work can be accused of not providing for the popular40liberty 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,

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 dealt45with 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,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 its50provisions? 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 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 of55this kind, enable any Government or any Parliament to twist or infringe its provisions, then by slow

degrees you may have that Constitution-if not altered in terms-so whittled away in operation that the

guarantees of freedom which it gives your people will not be maintained; and so, in the highest sense,

the court you are creating here, which is to be the final interpreter of that Constitution, will be such a


14/27

Page 14






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.END QUOTE5

Below the Framers of the Constitution held that the word citizen did not include a corporation but should have.

At that time the word citizen was contemplated to be used in the constitution more than just s44 however EdmundBarton the leader of the convention then held it was not a term that is defined and should not be used. (other than

s44) by this the term Subject of the British Crown was preferred to be used. However, as was made clear that apart10 of voting one could not have that a corporation had no equal position as this would undermine what the constitutionwas about.

HANSARD 3-3-1898Constitution Convention Debates (Official Record of the Debates of the National

Australasian Convention)15QUOTE

Mr. SYMON.-If you move that, I will accept it.

Sir JOHN FORREST.-What is a citizen? A British subject?

Mr. WISE.-I presume so.

Sir JOHN FORREST.-They could not take away the rights ofBritish subjects.20

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

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 have25power 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.

Sir JOHN FORREST.-He was an alien.

Mr. WISE.-The Privy Council decided that the Executive of any colony had an inherent right to30determine who should have the rights of citizenship within its borders.

Mr. KINGSTON.-That it had the right of keeping him out.

[start page 1786]

Mr. WISE.-In our case he was within our limits, but he was not allowed to sue in our courts.

Mr. BARTON (New South Wales).-If it is a fact that citizens, as they are called, of each state are also35citizens of the Commonwealth, there may be some little doubt as to whether this is not providing for

practically the same thing.

END QUOTE

The following indicates also that being a subject of the Queen or Subject to the British Empire is40

not negotiable for alteration in the constitution despite the ruling of the high court of Australia in

Sue v Hill!

Hansard 17-3-1898 Constitution Convention DebatesQUOTE Mr. BARTON.-45

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


15/27

Page 15






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, 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 the5Constitution, 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 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 in10 terms-so whittled away in operation that the guarantees of freedom which it gives your people will notbe 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. Having provided15for all these things, I think this Convention has done well.

END QUOTE

.

Therefore no judicial powers exist for the High Court of Australia to rule contrary to the

intentions of the Framers of the Constitution as they made clear that there was no power within20

the constitution to interfere with the rights of a Subject of the British Empire. Not even s128

referendum could achieve this.

INSPECTOR-RIKATI on IR WorkChoices Legislation

A Book about the Validity of the High Courts 14-11-2006 Decision25(Book-CD) ISBN 978-0-9751760-6-1

(Book-B&W) ISBN 978-0-9751760-7-8

(Book-Colour) ISBN 978-0-9751760-8-5

032-Chapter 003 LEGAL FICTION - persona designata30

This Chapter sets out the High Court of Australia sitting as a Court of disputed Returns in sue v

Hill for the politicians in the capacity of persona designata and therefore its judgment was a

political one and not at all an impartial judicial decision. Hence no evidence was before the Courtto prove its assertions by way of legal facts upon which ordinary a court of law must adjudicate.35



QUOTE

Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that we are all alike40subjects of the British Crown.

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 we occupy as subjects of the British Empire. I took occasion to indicate that in creating a45federal 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 aCommonwealth, but we would still be, subjects of the Queen. I see therefore nothing unconstitutional,

nothing contrary to our instincts as British subjects, in proposing to place power in this Constitution to50enable the Federal Parliament to deal with the question of federal citizenship. An objection has been raised

in various quarters-as by the honorable and learned members (Mr. O'Connor and Mr. Wise)-to the effect

that we ought to define federal citizenship in the Constitution itself. I have considered this matter very

carefully, and it has seemed to me that it would be most difficult and invidious, if not almost impossible, to

frame a satisfactory definition. There is in the Constitution of the United States of America a cast-iron55definition of citizenship, which has been found to be absolutely unworkable, because, among other

things, it says that a citizen of the United States shall be a natural-born or naturalized citizen within


16/27

Page 16






the jurisdiction of the United States, and it has been found that that excludes the children of citizens

born outside the limits of this jurisdiction. That shows the danger of attempting definitions, and

although I have placed a proposed clause defining federal citizenship upon the notice-paper, the

subject, seems to me surrounded with the greatest difficulty, and no doubt the honorable and learned

members (Mr. Wise, Mr. O'Connor, and Mr. Symon) would be the first to attack any definition, and5would be able to perforate it. In my opinion, it would be undesirable to implant a cast-iron definition

of citizenship in the Constitution, because it would be better to leave the question more elastic, more

open to consideration, and more yielding to the advancing changes and requirements of the times.

Mr. SYMON.-I agree with the honorable member, and I also think it is unlikely that the Commonwealthwill seek to derogate from it, but I will not place a power in the hands of the Commonwealth which will10enable them to derogate from it, and if that is not done it will be merely a dead letter. Is there any citizen of

the Commonwealth who is not already a citizen of the state? State citizenship is his birthright, and by

virtue of it he is entitled to the citizenship of the Commonwealth. When you have immigration, and

allow different people to come in who belong to nations not of the same blood as we are, they become

naturalized, and thereby are entitled to the rights of citizenship.15

Sir EDWARD BRADDON.-They are citizens if they are British subjects before they come here.

END QUOTE


Australasian Convention)20

QUOTE

Mr. SYMON.-I do not think that it is necessary to frame a definition of "citizen." A citizen is one

who 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"?25

Mr. SYMON.-Why not?

Mr. ISAACS.-Well, in America they do not.

Mr. SYMON.-I do not see why a corporation existing in one colony should not have the rights of acorporation in another colony. Otherwise you defeat the objects of this Constitution.

[start page 1783]30

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 saydefinitely, 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 come35within 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 American Constitution goes further than anything we require, and is directed to a particular andspecial condition of things, this provision seems to me absolutely essential, and, in my opinion, the

Constitution would be incomplete without it.40Mr. ISAACS (Victoria).-There is one word in the proposed clause which, when the honorable member

was speaking, did not strike my attention as it does now. I read the clause as if it provided that the citizens

of each state should be entitled to all the privileges and immunities of all the citizens of the several states;

but I find now that it is not so. The words in the clause are "in the several states," so that possibly it would

not have the disadvantages which I thought at first it would have. I am afraid, however, that it will not do45what the honorable and learned member wishes. In Dr. Burgess's work, vol. 1., pages 255-256, it is pointed

out that Germany adopted a provision of this kind with the fall intention that is actuating us now. This is

what the writer says about it:-

This is simply the old provision of Article 4, secure 2. of the Constitution of the United States. that "Thecitizens of each state" (Commonwealth) "shall be entitled to all privileges and immunities ofcitizens in the50


17/27

Page 17






several states" (Commonwealths). It was fashioned from this provision. It was discovered and demonstratedin the Constitutional Assembly of 1867 that this provision would not secure the civil liberty throughout the

German State which that body intended to establish, The difficulty was solved, not by fixing the immunities

and privileges ofcitizenship in the Constitution, but by vesting the Legislature of the General Government

with the power to deal with all these subjects by statutory provisions.5

That is precisely what the honorable and learned member (Dr. Quick) tried to do yesterday. The provision

which the Convention threw out yesterday is that which has been proved by experience to be the only one

which in Germany could carry out the object wished for. The provision which they moulded upon the

provision in the American Constitution failed to carry out that object, and I am afraid that the provision ofthe honorable and learned member (Mr. Symon) will also fail to do so.10

Mr. KINGSTON (South Australia).-I agree with what has fallen from the honorable and learned member(Mr. Isaacs). I think that we made a mistake yesterday when we rejected the amendment of the honorable

and learned member(Dr. Quick), and I trust that before we finally separate, we shall be able to include that

amendment in the Constitution, or, if not, to adopt a provision similar to that which was suggested by the

honorable and learned member (Mr. Glynn), which would have made the clause read as follows:-15

A state shall not deny to the citizens of other states the privileges and immunities of its own citizens.

That, I understand, would mean that a Victorian citizen, whether a Chinaman or any one ease,

going, say, into the great province of Western Australia, would be entitled to all the privileges and

immunities of a citizen of Western Australia. If Western Australia had legislated to restrict the rights

of Chinese within her borders, a Chinaman going there would be subject to that restriction, but if no20restrictions had been imposed upon Chinese [start page 1784] residing within Western Australia, it

would be impossible for Western Australia, simply because a Chinaman came from another colony,

to treat him differently from the way in which Chinese residents there were treated. It seems to me

an anomaly to use the word "citizen" in this Constitution, if you neither define it nor make provision

for its definition. I asked the honorable and learned member(Mr. Symon), what was his definition of25"citizen," and I understood him to say that a citizen was a man who had the rights of citizenship.

That reminded me of the definition once given of an archdeacon, who was described as a reverend

gentleman who performed archidiaconal functions. Such a definition may be all very well in

humorous conversation, but we have already been warned about the impropriety of inserting

anything of this character in the Constitution. I trust that we shall make this Constitution perfectly30intelligible within its four corners, and I do not think we can do that without adopting some provision

of the kind suggested by the honorable and learned member (Dr. Quick).

Mr. DOUGLAS (Tasmania).-I take it that what is required is that the position of citizens of the

Commonwealth should remain practically what it is now, and that each citizen, when he went out of

his own state into another, should be liable to the laws of that state, but to no special laws. On the35other hand, he should not be able to carry with him any particular privileges. It seems to me that we should

take care to prevent the states from passing any law which would restrict the rights and liberties ofcitizens

of other states who happened to come within its borders.

END QUOTE

40HANSARD 3-3-1898Constitution Convention Debates (Official Record of the Debates of the National

Australasian Convention) at page 9

QUOTE

Sir GEORGE TURNER.-Is a naturalized alien a subject?

Mr. BARTON.-He would be a citizen under the meaning of this clause.45

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 shall be citizens of the Commonwealth. Why not use the word "subject," and avoid the50necessity of this definition?


18/27

Page 18






Dr. QUICK.-This definition does not interfere with the term "subject" in its wider relation as a member ofthe empire or subject of the Queen.

Mr. BARTON.-No, but the definition of "citizen" as a natural-born or naturalized subject of the Queenis 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.5

Dr. QUICK.-That refers to special races.

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 person10of 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.

END QUOTE

HANSARD 3-3-1898Constitution Convention Debates (Official Record of the Debates of the National15Australasian Convention) at page 21

QUOTE

Mr. OCONNOR (New South Wales).-I would suggest that Mr. Symon should accept the amendment

suggested by Mr. Barton, so that his clause shall read-

Every subject of the Queen resident in any state or part of the Commonwealth shall be entitled to all20privileges and immunities of subjects resident in other states or parts of the Commonwealth.

I am altogether in favour of the principle of Mr. Symon's amendment; but the word "citizen" creates a

difficulty. If, instead of the word "citizen," we use the words "Every subject of the Queen resident in a

state," it really means the same thing. The meaning to be given to the word "citizen" in Mr. Symon's

amendment is not the narrow limited meaning of the citizen who can exercise the franchise, but it is25the broad general meaning which the word has been held to have under the United States

Constitution. It has been decided there that the word "citizen" has, [start page 1796] in a general and

wide sense, this meaning:-

In its broad sense the word is synonymous with subject and inhabitant, and is understood as

conveying the idea of membership of the nation, and nothing more.30

Mr. ISAACS.-Look at page 212, No. 14, and the next page, and you will see another decision.

Mr. OCONNOR.-The decision referred to by Mr. Isaacs states that in regard to offences against thecitizens of the United States for which punishment is prescribed in section 5508, the word "citizen" is used

in its political sense, as it is in the 14th amendment, and is not synonymous with "resident, inhabitant,

or person." When dealing with offences, the word "citizen" appears to be used in another way.35

Mr. ISAACS.-As it is in the 14th amendment.

Mr. OCONNOR.-The reference my honorable friend has put before me emphasizes what I say, that the

word "citizen" is used in its general sense, and at the same time there appears to be a particular sense in

which it also may be used.

Mr. ISAACS.-In a sense which is "not synonymous with resident, inhabitant, or person."40

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 "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."45

Mr. SYMON.-A person for the time being under the law of the Commonwealth.


19/27

Page 19






Mr. OCONNOR.-A person for the time being entitled to the benefits of the law of the

Commonwealth.

Mr. FRASER.-But as the whole Constitution has been passed for the benefit of subjects, surely theclause is not necessary?

Mr. OCONNOR.-That is another question. I am now simply dealing with the use of the word "citizen."5It seems to me that the word "citizen" is not a proper word. The only reason I see for the amendment is the

reason put forward already, and I would remind the honorable member (Mr. Fraser) that that reason is there

should be no power in a state to treat the inhabitants of another state differently from its own.

Mr. FRASER.-Hear, hear.

Mr. OCONNOR.-That is the only thing to be provided against. I think that Mr. Symon's amendment, if10altered as Mr. Barton suggests, will carry that out. The alteration provides that every subject of the Queen

resident in a state or part of the Commonwealth shall be entitled to all the privileges and immunities of the

subjects resident in the other states or parts of the Commonwealth. The only meaning of that is that when

the subject of a state goes into another state he will be treated equally with the subjects of the Queen in the,

state to which he goes.15

Mr. SYMON.-Hear, hear; no more and no less.

Mr. OCONNOR.-A subject would only have the rights of inhabitants of the state to which he goes.

He does not take with him the privileges of his own state.

Mr. ISAACS.-Could that not be construed to mean that a subject of the Queen resident in one state

should, although resident in that state, have all the rights, privileges, and immunities of a subject resident in20another state?

Mr. OCONNOR.-I do not think so. I am prepared to support the amendment, of Mr. Symon if altered assuggested.

Mr. ISAACS (Victoria).-Might the amendment not mean that a subject resident in one state, and

contemplating the continuance of that residence, is to have [start page 1797] all the privileges and25immunities of residents irk another state?

Mr. WISE.-No, no.

Mr. ISAACS.-It says that a subject of the Queen resident in one state shall have the privileges andimmunities of a subject of the Queen resident in another state. It seems to me that the proposal is quite

open to the objection I have mentioned. I fear that all the attempts to define citizenship will land us in30innumerable difficulties.

Dr. COCKBURN (South Australia).-Shall we not, by drawing those lines of distinction, be drawing lines

which at present are not drawn in Australia? The words "subject of the Queen" introduce a dividing line

among the Asiatics we have at present in Australia, some of whom are subjects of the Queen, and others of

whom are not. We want to deal with Asiatics On broad grounds without any such distinction, but the35proposal if carried would prevent our doing so. The moment any legislation was introduced the questionwould arise as to which Asiatics were subjects of the Queen, say from Hong Kong, and which were.

Asiatics which came from some other part of China and were not subjects of the Queen.

Mr. OCONNOR.-Asiatics will be dealt with by special laws, which will be the same all through theCommonwealth.40

END QUOTE

HANSARD 3-4-1891 Constitution Convention Debates (Official Record of the Debates of the National


QUOTE45

Mr. MUNRO: We have agreed to sub-clause 13, dealing with the incorporation of banks, and I do not seewhy a similar provision should

Date post:	05-Apr-2018
Category:	Documents
Upload:	gerrit-hendrik-schorel-hlavka
View:	214 times
Download:	0 times

120802 Attorney General Jarrod Bleijie

Documents