20160122-Schorel-Hlavka O.W.B. to Mr Peter Kidd CJ County Court of Victoria-Re Buloke Shire Council...

7/26/2019 20160122-Schorel-Hlavka O.W.B. to Mr Peter Kidd CJ County Court of Victoria-Re Buloke Shire Council -APPEAL-15-

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p1 22-1-2016 G. H. Schorel-Hlavka O.W.B.INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD

A 1stedition limited special numbered book on Data DVDISBN 978-0-9803712-6-0PLEASE NOTE: [email protected]

Mr Peter Kidd CJ 22-1-2016Email:[email protected]

Cc; Buloke Shire Council (Councillors)[email protected] Andrews Premier [email protected] Martin Pakula,[email protected]&[email protected] Stafford and Associated (EA&a)[email protected] McIntosh,Associate to His Honour Mullaly J. [email protected]

Re: 20160122-Schorel-Hlavka O.W.B. to Mr Peter Kidd CJ County Court of Victoria-

Re Buloke Shire Council -APPEAL-15-2502- Re Is Kidd the Hypocrite

Sir,I came across the fierce advocate claim via email and also the issue about the issue of the

judiciary to be checked. This and other issues I will address. Both articles have been reproducedbelow.From:Attorney General's OfficeandThe Rt Hon Jeremy Wright QC MPQUOTE

I do not want this speech to be a historical overview of the rule of law but the English philosopher JohnLocke made the point in 1690 that Wherever law ends, tyranny begins. The classic modern definition of theRule of Law and by modern I mean 1885 - comes from the jurist and constitutional theorist AV Dicey. Iwont read the whole of what he said but two parts of it are of particular importance to the success of the City

of London and its commercial and legal sectors. Firstly, Dicey said that the rule of law meant that no man is

punishable or can be lawfully made to suffer in body or goods except for a distinct breach of lawestablished in the ordinary legal manner before the ordinary Courts of the land. He also said that when

we speak of the rule of law we mean not only that with us no man is above the law, but that here everyman, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the

jurisdiction of the ordinary tribunals.END QUOTE

This very much was reflected by the Framers of the Constitution and embedded in theconstitution, who held:.

Hansard 1-3-1898Constitution Convention DebatesQUOTE Sir JOHN DOWNER.-

I think we might, on the attempt to found this great Commonwealth, just advance one step, not beyond

the substance of the legislation, but beyond the form of the legislation, of the different colonies, and say

that there shall be embedded in the Constitution the righteous principle that the Ministers of the

Crown and their officials shall be liable for any arbitrary act or wrong they may do, in the same way asany private person would be.

END QUOTE

As such, if Ministers and their officials can be held legally accountable then I view lawyers(including barristers) must be allowed to be held accountable. No such thing that one cannot suea Barrister or a barrister can avoid being held legally accountable for any wrongdoing at the bartable. Yet it is all too often eventuating..

More over consider the following:

SCHOREL v. SCHOREL (1982) C 66117 of 1982 Unreported Transcript 11-3-82 and 12-3-82 before Emery SJ.

(In regard of the former husbands statements from the bar table earlier during the proceedings about matters on thelists)
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]://www.gov.uk/government/organisations/attorney-generals-officehttps://www.gov.uk/government/organisations/attorney-generals-officehttps://www.gov.uk/government/organisations/attorney-generals-officehttps://www.gov.uk/government/people/jeremy-wrighthttps://www.gov.uk/government/people/jeremy-wrighthttps://www.gov.uk/government/people/jeremy-wrighthttps://www.gov.uk/government/people/jeremy-wrighthttps://www.gov.uk/government/people/jeremy-wrighthttps://www.gov.uk/government/organisations/attorney-generals-officemailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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QUOTE Page 115: (Emery SJ examine-in-chief Mr Schorel in the witness box)You made or gave me some in formation whi le you were standing at the bar table just a li ttle whi le

ago about the two lists of furni ture that your wi fe produced this morning, exhi bits A and B. What

you said f rom the bar table is true, is that ri ght?- - - That is correct, your Honour.Yes. Well , that makes it all evidence that you have given i nstead of just a statement.

END QUOTE

You may not be aware of this nor for that it seems any judicial officer of any court/tribunal butthere is no such thing as a lawyer claiming cost from the Bar table, as it is not evidence and as

such a lawyer would be required to enter the witness box to give evidence about any costclaimed.Some decades ago an opponent lawyer was making a statement from the Bar table and Iobjected that it was a misuse and abuse of using the Barf table to try to give evidence and thatthe court cannot consider what the lawyer was stating as purported evidence unless the lawyerwould give the evidence from the witness box. The judge agreed and invited the lawyer to eitherforgo what she had been claiming or to enter the witness box.The lawyer was sworn in and then confirmed what she had stated from the Bar table and wasabout to leave the witness box when I objected to her leaving as I explained to the judge that Iwas entitled to cross-examine the lawyer. The judge agreed. The lawyer tried to claim lawyer-client confidentiality but as I explained that if she fraudulently claimed cost then the lawyer-

client confidentiality was out of the window. And as she had claimed cost regarding somedocuments I had written then she should know the content of it and why then didnt she during

the hearing reveal relevant details such as the authorities I had quoted in my writings.

Foster (1950) S.R. (N.S.W.) 149, at p151 (Lord Denning, speaking on the role of an advocate)

QUOTEAs an advocate he is a minister of Justice equally with a judge, A Barrister cannot pick or choose his

clients...He must accept the brief and do all he honourably can on behalf of his client. I say 'All he

honourably can' because his duty is not only to his client. He has a duty to the court which is

paramount. It is a mistake to suppose that he is a mouthpiece of his client to say what he wants: or

his tool to do what he directs. He is none of those things. He owes his allegiance to a higher cause. It is

the cause of truth and Justice. He must not consciously misstate the facts. He must not knowingly

conceal the truth. He must not unjustly make a charge of fraud, that is, without evidence to supportit.He must produce all relevant authorities, even those that are against him. He must see that his clientdiscloses, if ordered, all relevant documents, even those that are fatal to his case. He must disregard the

specific instructions of his client, if they conflict with his duty to the court. END QUOTE

For example on 17 September 2015 Buloke Shire Council lawyer claimed about $1,600 costregarding my writings from the Bar table and yet never disclosing the authorities and at no timewas there any evidence from the witness box to confirm this. And while His Honour Mullaly J

claimed that there is no need for evidence during an ex parte (criminal) case to have ordersissued reality is that constitutionally it requires evidence.Hansard 8-2-1898Constitution Convention Debates

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

Mr. HIGGINS.-Both sides heard.

Mr. OCONNOR.-Yes; and the process of law within that principlemay 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 deprived of his liberty. Is not that a

first principle in criminal law now? I cannot understand any one objecting to this proposal.

END QUOTE

Even for any so called De Novo hearing on appeal the aggrieved party is entitled and must bemade aware what legal justification existed for the court to have made the orders on 17September 2015 (Magistrates Court of Victoria at St Arnaud)!

.
mailto:[email protected]:[email protected]:[email protected]:[email protected]


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QUOTEIn the Marriage of Tennant(1980) 5 FLR 777 at 780As no grounds for appeal are required to be specified in the notice of Appeal, which, on filing institutes the appeal(reg 122), there is no limitations of the scope of the appeal and all findings of fact and law made in the lowercourt in relation to the decree appealed are in challenge and cannot be relied on by the appellant or therespondent. All the issues (unless by consent) must be reheard. This of course brings me to the point of theabsence of reason for the magistrates decision in this case. Perhaps reasons were given orally but not recorded

for the record. Apart from the requirement of such reason for the purpose of the appeal process, there is the basicground of criticism that litigants who go to court, put their witnesses up, argue their case and attempt to controvertthe opposing case are entitled to know, if they lose, why they lost. I f they are given no reason they may be

entitl ed to feel the decision against them was conceived in prejudice, bias, or capri ce.In such a case not onlythe litigant, but justice itself, is the loser.

Magistrates should realise, even more than they seem to do, that this class of business is not mere ordinary trivialwork, and they should deal with these cases with a due sense of responsibility which administrations of thesummary jurisdiction Act and the far reaching consequences of the orders that they make thereafter entail. [Bakerv Baker(1906) 95 LT 549; In Robinson v Robinson(1898) p135; and again in Cobb v Cobb(1900) p145] itwas stated that when making orders of this kind, from which lies an appeal to other courts, it is the duty of themagistrate not only to cause a note to be made of the evidence, and of his decision, but to give the reasons for hisdecision and to cause a note to be made of his reasons... Elaborate judgements are not required, but the reasonswhich lead the magistrate to make his order must be explicitly stated.

END QUOTE

Since you became Chief Justice, did you ever bother to be hands-on and check how often judgeswere granting orders for cost merely upon some lawyer making so to say a cockapoo story fromthe bar table claiming cost without any shred of evidence from the witness box and so robbingthe other party of his/her right to contest the cost claim?In my view before any lawyer can claim cost the lawyer should advise this prior to the hearing to

pursue orders for cost and then during the trail must be required to be willing to give evidence sothat the other party can cross-examine the lawyer as to his/her knowledge about the material, etc..After all, if the lawyer were to claim cost but proves not to know a thing as to what was written(And yes I caught out a barrister before an appeal court not knowing anything, as he admittedthis to the full court, himself.) After all if the lawyer conceals relevant Authorities from the Courtthat was referred to by the other party then the cost claim might be deemed fraud, and then

lawyer-client confidentiality is gone. Then the other party can cross-examine the lawyer aboutmatters that ordinary are deemed lawyer-client confidential issues.Are you some hypocrite who claims wanting to be (reportedly) some advocate for judges whenin fact ignoring the rot they are engaged in?How many cases since you became Chief Justice violated this rule that one cannot give evidencefrom the Bar table and so any lawyer claiming cost has to go into the witness box to giveevidence? Or is it just that the gross incompetence of the judiciary continues unabated? After allit is such an cancerous modus operandi that well not even you can manage tounderstand/comprehend what is legally appropriate?

But wait there is more!

.Constitutionally the Judiciary is at the same level as the Government of the Day and theParliament. While it was claimed that the Judiciary no longer since 2014 has to report to thegovernment but instead now to the parliament, this underlines how incompetent the judiciary has

been all along.HANSARD 4-3-1891Constitution Convention DebatesQUOTE Sir HENRY PARKES:

(2.) A judiciary, consisting of a federal supreme court, which shall constitute a high court of appeal

for Australia, under the direct authority of the Sovereign, whose decisions, as such, shall be final.

END QUOTE.

HANSARD 12-4-1897Constitution Convention Debates (Official Record of the Debates of the National

Australasian Convention)QUOTE Mr. BARTON:


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It is provided that instead of, as before, the Parliament having power to constitute a judiciary, there

shall be a Supreme Court, to be called the High Court of Australia, as a part of the Constitution-that I

believe to be an improvement-and other courts which the Parliament may from time to time create or

invest with federal jurisdiction.END QUOTE

As such the judiciary is not the third arm of government as lawyers wrongly claim it is the 3 rdarm of the constitution. To be the 3rd arm of the government implies bias towards thegovernment and this prevents the judiciary to be independent/impartial as required by both the

Commonwealth of Australia Constitution Act 1900 (UK) as well as by the 20-1-1901 in theVictorian Gazette published letters Patent (impartial administration of justice!

Likewise so the State judiciary it is directly under the sovereign and not at all under theGovernment, albeit an appeal to the High Court of Australia is provided for.

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

The constitution of this federation will not be charged with the duty of resisting privileged classes, for

the whole power will be vested in the people themselves. They are the complete legislative power of the

whole of these colonies, and they shall be so.From[start page 106] them will rise, first of all, the 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 theroyal prerogative exercised, in their interest and for their benefit, by the advice of their ministers will bepractically 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 bodiesthat will be in existence concurrently the necessary powers for their proper management and existence. Each

assembly, each legislature, whether state or federal existing under this constitution, will be as Dicey

again says-a merely subordinate law-making body whose laws will be valid, whilst within the authority

conferred upon it by the constitution, but invalid and unconstitutional if they go beyond the limits of

such authority.END QUOTE

More over:

HANSARD10-03-1891

Constitution Convention DebatesQUOTE

Dr. COCKBURN:All our experience hitherto has been under the condition of parliamentarysovereignty. Parliament has been the supreme body. But when we embark on federation we throw

parliamentary sovereignty overboard. Parliament is no longer supreme. Our parliaments at present are

not only legislative, but constituent bodies. They have not only the power of legislation, but the power

of amending their constitutions. That must disappear at once on the abolition of parliamentary

sovereignty. No parliament under a federation can be a constituent body; it will cease to have the

power of changing its constitution at its own will. Again, instead of parliament being supreme, theparliaments 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 dispensedwith, instead of there being a high court of parliament, you bring into existence a powerful judiciary

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

of the constitution.END QUOTE.

This means that the Colonial Constitution Act (Victoria) 1855 automatically upon federation wasamended by the power transfer from the colonies (now States) to the Commonwealth.QUOTE

123 Alteration of limits of StatesThe Parliament of the Commonwealth may, with the consent of the Parliament of a State, and the approval ofthe majority of the electors of the State voting upon the question, increase, diminish, or otherwise alter thelimits 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 inrelation to any State affected.

END QUOTE


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It also means that the limited State constitutions can only be amended by a State referendum andnot otherwise, since federation commenced. Where no State referendum was held then the

purported amendments, including the purported Victori an Constituti on Act 1975 are withoutlegal basis and as such ULTRA VIRES

Hansard 17-3-1898 Constitution convention Debates (Official Record of the Debates of the NationalAustralasian Convention)QUOTE Mr. BARTON.-

Providing, as this Constitution does, for a free people to elect a free Parliament-giving that people

through their Parliament the power of the purse-laying at their mercy from day to day the existence

of any Ministry which dares by corruption, or drifts through ignorance into, the commission of any

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

Constitution. Whatever any one may say to the contrary that is secured in the very way in which the

freedom of the British Constitution is secured. It is secured by vesting in the people, through their

representatives, the power of the purse, and I venture [start page 2477] to say there is no other way of

securing absolute freedom to a people than that, unless you make a different kind of Executive than

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

the citizen from interference. Under this Constitution he is saved from every kind of interference.

Under this Constitution he has his voice not only in the, daily government of the country, but in the

daily determination of the question of whom is the Government to consist. There is the guarantee of

freedom in this Constitution. There is the guarantee which none of us have sought to remove, but

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

popular liberty is something which I hope the critics will now venture to explain, and I think I have

made their work difficult for them. Having provided in that way for a free Constitution, we have

provided for an Executive which is charged with the duty of maintaining the provisions of that

Constitution; and, therefore, it can only act as the agents of the people. We have provided for a

Judiciary, which will determine questions arising under this Constitution, and with all other

questions which should be dealt with by a Federal Judiciary and it will also be a High Court of

Appeal for all courts in the states that choose to resort to it. In doing these things, have we not provided,first, that our Constitution shall be free: next, that its government shall be by the will of the people, which isthe 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 the Constitution, for no citizen is above it, but under it; but it is appointed for the purpose ofsaying that those who are the instruments of the Constitution-the Government and the Parliament of

the day-shall not become the masters of those whom, as to the Constitution, they are bound to serve.

What I mean is this: That if you, after making a Constitution of this kind, enable any Government or

any Parliament to twist or infringe its provisions, then by slow degrees you may have that

Constitution-if not altered in terms-so whittled away in operation that the guarantees of freedom

which it gives your people will not be maintained; and so, in the highest sense, the court you are

creating here, which is to be the final interpreter of that Constitution, will be such a tribunal as will

preserve the popular liberty in all these regards, and will prevent, under any pretext of constitutional

action, the Commonwealth from dominating the states, or the states from usurping the sphere of the

Commonwealth. Having provided for all these things, I think this Convention has done well.END QUOTE

Section 51 of the Commonwealth of Australia Constitution Act 1900 has no provisionwhatsoever for the States to legislate as to any of the subject matters stated in that section.However, one again must look upon what the Framers of the constitution embedded as legal

principles in the constitution to learn what is applicable, such as the limited concurrent

legislative powers of the States prior to the Commonwealth legislating on a particular subjectmatter..

Hansard 2-2-1898Constitution Convention Debates

QUOTE Mr. DEAKIN(Victoria).-

The record of these debates may fairly be expected to be widely read, and the observations to which I

allude might otherwise lead to a certain amount of misconception.END QUOTE

Hansard27-1-1898Constitution Convention Debates


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QUOTE

Mr. BARTON.-I was going to explain when I was interrupted that the moment the Commonwealth

legislates on this subject the power will become exclusive.END QUOTE

Hansard27-1-1898Constitution Convention DebatesQUOTE

Mr. BARTON(New South Wales).-If this is left as an exclusive power the laws of the states will

nevertheless remain in force under clause 100.

Mr. TRENWITH.-Would the states still proceed to make laws?

Mr. BARTON.-Not after this power of legislation comes into force. Their existing laws will, however,remain. If this is exclusive they can makeno new laws,but the necessity of making these new laws will beall the more forced on the Commonwealth.

END QUOTE.

Hansard 22-9-1897Constitution Convention DebatesQUOTE

The Hon. R.E. O'CONNOR (New South Wales)[3.18]: The moment the commonwealth exercises the

power, the states must retire from that field of legislation.

END QUOTE.

Hansard 30-3-1897 Constitution Convention Debates

QUOTE Mr. REID:

We must make it clear that the moment the Federal Parliament legislates on one of those points

enumerated in clause 52, that instant the whole State law on the subject is dead. There cannot be two

laws, one Federal and one State, on the same subject. But that I merely mention as almost a verbal

criticism, because there is no doubt, whatever that the intention of the framers was not to propose any

complication of the kind.END QUOTE.

Hansard 30-3-1897 Constitution Convention Debates

QUOTE

The Hon. R.E. O'CONNOR (New South Wales)[3.18]: We ought to be careful not to load thecommonwealth with any more duties than are absolutely necessary. Although it is quite true that this

power is permissive, you will always find that if once power is given to the commonwealth to legislate

on a particular question, there will be continual pressure brought to bear on the commonwealth to

exercise that power. The moment the commonwealth exercises the power, the states must retirefrom

that field of legislation.END QUOTE.


Mr. OCONNOR.-Directly it is exercised it becomes an exclusive power, and there is no doubt that it willbe exercised.

END QUOTE


Sir JOHN DOWNER.-There must be some body which deems it necessary, and the only body to whichthe words can refer is the Commonwealth Parliament. What very substantial difference does it make whetherwe leave the provision as it stands or put it into clause 52? True, if the provision is left where it stands, theFederal Parliament will have exclusive power in connexion with this matter; but that body will only haveexclusive power when it chooses to exercise it. It is only when the Federal Parliament has passedlegislation dealing with the people about whom regulations are to be made that this exclusive power

will have arisen.END QUOTE



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Mr. GLYNN(South Australia).-I desire to call the attention of the leader of the Convention to anapparent vagueness in the word "exclusive," to which reference has not yet been made. The word

"exclusive," no matter at what time the power arises, whether on the coming into being of the

Commonwealth, or the exercise of the power by the Federal Parliament, may mean, and I believe does

mean, that the power of the state to legislate ceases.On the question of whether the exclusive power

under this provision comes into being with the establishment of the Commonwealth, I would call the

attention of the leader of the Convention to clause 84. That clause seems to indicate that this exclusive

power arises the moment an Act is passed.It speaks of the exclusive power of enforcing customs duties

being vested in the Federal Parliament, but the second paragraph says-

But this exclusive power shall not come into force until uniform duties of customs have been imposed

by the Parliament.

It would appear that without that limitation the exclusive power would come into force at once, and theposition would be as stated by the Victorian representatives. If you pass this clause as it[start page 255]stands the state could no longer legislate with regard to Chinese.

Mr. BARTON.-If the exclusive power is given without any restriction, I think it would arise immediatelyon the establishment of the Commonwealth.

END QUOTE


Mr. GLYNN.-There seems to be some doubt as to whether the exclusive power arises upon theestablishment of the Commonwealth or on the exercise of the power of legislation. The doubt seems to

be removed by clause 84. It is said that if we put this provision in clause 52 the exclusive power may bepostponed until legislation takes place. But may you not then have a concurrent power, and may not thecompetence of the local Legislature to legislate in the matter be continued as long as the legislation is not incontradiction of federal legislation?

Mr. DEAKIN.-That is the point.

Mr. GLYNN.-Yes, and there is still a vagueness in the word "exclusive." If it is doubtful whether the

exclusive power commences with the foundation of the Commonwealth, and if it is possible that it may onlycome into being on the passing of legislation, may it not still be said that on the passing of exclusivelegislation the power of the local Parliaments to legislate is extinguished, but that on the passing ofconcurrent legislation that power does not cease?

Mr. REID(New South Wales).-I think that enough has now been said on this subject by honorable

members both sides of the chamber, and I have only a very few remarks to offer. It appears that if the

sub-section remains where it is state laws will be valid until federal legislation, but the states will not be

able to alter or improve those laws during the possibly long interval between federation and federal

legislation.Under these circumstances, as we leave to the states for an indefinite time the power of

maintaining the laws they have, we should grant to them the power of improving those laws. It would

recommend the Constitution more to a large number of persons if we put the sub-section in clause 52,

thus enabling each state to legislate on this matter until the Federal Parliament comes in and legislatesfor all.

END QUOTE

Therefore, the moment the Commonwealth commented to legislate upon say land taxes andcreated the Land Tax Office (forerunner of the ATO) on 11-11-1910 then all State land taxeswere ousted and all delegated state land taxation such as municipal/shire council rates (the Highcourt of Australia In Sydney Council v Commonwealth in 1904 were delegated s114 landtaxation powers) then were unconstitutional from then on. Likewise where the commonwealthlegislated as to weight and measures then all and any State legislation relating to weight and

measures became unconstitutional. Still you find that the judiciary will continue to enforce the

unconstitutional council rates and for example alleged speeding charges, this even so to my


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knowledge there is not a single speed detection unit certified by the commonwealth for this. Itmakes absolutely no difference in law if the State did legislated in that regard because the Statesimply lost its legislative powers the moment the commonwealth legislated on this subjectmatter. If the commonwealth desires not to legislate as to speed detection units, perhaps becauseit conflicts with it standards for imported motor vehicle variation, then the states cannot so to sayoverrule the Commonwealth and go off on their own to nevertheless legislate on the subjectmatter..Hansard 9-3-1898 Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention)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, whendeclaring an Act ultra vires, would be that such a declaration applied only to the part which trespassedbeyond 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.Hansard1-3-1898Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention)QUOTE

Mr. GORDON.-Well, I think not. I am sure that if the honorable member applies his mind to the subject hewill see it is not abstruse. If a statute of either the Federal or the statesParliament be taken into courtthe court is bound to give an interpretation according to the strict hyper-refinements of the law.It may

be a good law passed by "the sovereign will of the people," although that latter phrase is a common one whichI do not care much about. The court may say-"It is a good law, but as it technically infringes on theConstitution we will have to wipe it out."As I have said, the proposal I support retains some remnant of

parliamentary sovereignty, leaving it to the will of Parliament on either side to attack each other's laws.

END QUOTE

As I indicated the judiciary is not under the government and neither accountable to the

parliament. Its independence is secured by the legal principles embedded in the constitution andthe States created within s106 of this constitution subject to this constitution then cannot

undermine this constitutional system..

It also means that as the State Parliaments are no longer sovereign Parliaments but now

constitutional Parliaments then none can amend the State constitutions as it can do no more but

to hold an s123 State referendum as to the boundaries of the States physical, jurisdictional, etc,boundaries. What s128 is for the Commonwealth is s123 for the States. Just that peoplegenerally never understood this..

I am often so to say clubbed with Quick and Garran and numerous other books written about the

constitution and even former High Court of Australia judgments but let us not forget that theywere written with a disregard to the Hansard Debates as the High Court of Australia until aboutthe 1980 (albeit wrongly) prevented the usage of the Hansard records.

The for example the meaning of Australian Citizenship:Judicial officers who do not have Victorian Citizenship cannot be regarded as being the peersof an accused/defendant, and as such cannot adjudicate in regard of those appearing before theVictorian Courts.


QUOTESir JOHN FORREST.-What is a citizen? A British subject?Mr. WISE.-I presume so.Sir JOHN FORREST.-They could not take away the rights of British subjects.


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Mr. WISE.-I do not think so. I beg to move- That the words "each state" be omitted, with the view ofinserting the words "the Commonwealth."I apprehend the Commonwealth must have complete power to grant or refuse citizenship to any citizenwithin its borders. I think my answer to Sir John Forrest was given a little too hastily when I said that everycitizen of the British Empire must be a citizen of the Commonwealth. The Commonwealth will have powerto determine who is a citizen. I do not think Dr. Quick's amendment is necessary. If we do not put in adefinition of citizenship every state will have inherent power to decide who is a citizen. That was thedecision 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 todetermine who should have the rights of citizenship within its borders.

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

ADDRESS TO THE COURT, Part 2County Court of Victoria, Case numbers T01567737 & Q10897630

QUOTE

QUOTE 19-11-2002 correspondence to Victorian Attorney-General

WITHOUT PREJUDICE

Attorney General 19-11-2002Victoria

Fax 9651 0577 AND TO WHOM IT MAY CONCERNURGENT

Sir/MadamSince 27-9-2002 I sought clarification about what, if any State citizenship I have

as to be able to obtain Australian citizenship, yet, in the recent 18 November 2002 response itwas stated;

As explained in my previous letter, citizenship is a matter for the Commonwealth,

not the States. You indicated that you were naturalized in 1994. As result of that, you

are an Australian citizen.

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

Edmund Barton (later becoming the first Prime Minister of Australia and thereafter a judge of theHigh Court of Australia) made very clear during the convention, that if it isnt in the

Constitution, then the Commonwealth had no legislative powers.

RUVANI WICKS refers me to the Commonwealth Government to sort out matters, however thisis clearly unacceptable, this, as the State of Victoria and not the Commonwealth deals or mustdeal with State Citizenship!

Unless you can point out when there was a reference of legislative powers from the State of

Victoria to the Commonwealth approved within Section 128 of the Commonwealth constitution,I view, there never was and still is no constitutional legislative powers by the Commonwealth todetermine State or any other citizenship!

At most, the Commonwealth, could determine citizenship as the local law for the Act andNorthern Territory through the parliaments governing those Territories (being Quasi States) asthey are not limited to constitutional provisions, however there never was any Constitutional

powers for the Commonwealth to grant citizenship to any resident of a State, neither determinecitizenship of a citizen of a State!

If your Department nevertheless maintains that the Commonwealth has the legislative powers todetermine citizenship of residents of the State of Victoria then please do set out in which


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Constitutional manner the Commonwealth had this power from on set, if any, and/or how itobtained this legislative power since the formation of the Commonwealth!

If anything, the Department of justice ought to be well aware that unless it is done lawfully it isULTRA VIRES!

END QUOTE 19-11-2002 correspondence to Victorian Attorney-General

No further reply was received by me upon this.

What was shown was that the Victorian government also had seemingly gone along to confuseAustralian citizenship with state citizenship! And that is the real problem. Somehow everyone,other then me, seems to have lost reality as to what is applicable.Likewise, other States seemed to have gone along, despite constitutionally the purportedAustralian citizenship could never substitute the constitutional powers of the states to

legislate for State citizenship. No State citizenship then no Commonwealth citizenship and so noelectoral rights either! Yet, even this basic issue still seems to remain unresolved! Still, Section245 of the Commonwealth Electoral Act 1918cannot be enforced unless the CDPP can show tothe Court that somehow I did obtain State citizenship (political rights) and so invoked Section41 of the Constitutionto obtain electoral rights in Commonwealth citizenship.END QUOTE


QUOTE

It is a matter of fact that I was issued with a Certificate of Australian Citizenship No.

ME9401317Con the 28thday of March 1994. I do not believe that the Commonwealth Directorof Public Prosecutions contest the issue of this certificate.The certificate states;QUOTE

COMMONWEALTH OF AUSTRALIAAustralian citizenship Act 1948

Certi f icate of Austral ian Citizenship

GERRIT HENDRIK SCHORELBorn on 7 th June 1947

having applied for a Certificate of Australian Citizenship, having satisfied the conditionsprescribed by the Australian Citizenship Act 19448 for the grant of such Certificate

and having undertaken to fulfil the responsibilities of a citizen.

I the Minister for Immigration and Ethnic Affairs,

Grant this Certificate of Australian citizenship to the abovenamed applicant who isan Australian citizen on and after 28 th March 1994.

Issued by the authorityOf the MinisterFor Immigration andEthnic Affairs.END QUOTE

By marriage, on 28 March 2001, I became Gerrit Hendrik Schorel-Hlavka

Talbot v. Janson, 3 U.S. 133 (1795)


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Yet, it is to be remembered, and that whether in its real origin, or in its artificial state,

allegiance, as well as fealty, rests upon lands, and it is due to persons. Not so, with

respect to Citizenship, which has arisen from the dissolution of the feudal system and is

a substitute for allegiance, corresponding with the new order of things. Allegiance and

citizenship, differ, indeed, in almost every characteristic. Citizenship is the effect of

compact; allegiance is the offspring of power and necessity. Citizenship is a political tie;

allegiance is a territorial tenure. Citizenship is the charter of equality; allegiance is a

badge of inferiority. Citizenship is constitutional; allegiance is personal. Citizenship is

freedom; allegiance is servitude. Citizenship is communicable; allegiance is repulsive.

Citizenship may be relinquished; allegiance is perpetual. With such essential

differences, the doctrine of allegiance is inapplicable to a system of citizenship; which it

can neither serve to controul, nor to elucidate. And yet, even among the nations, in

which the law of allegiance is the most firmly established, the law most pertinaciously

enforced, there are striking deviations that demonstrate the invincible power of truth,

and the homage, which, under every modification of government, must be paid to the

inherent rights of man.

And

These are tacit acknowledgments of the right of expatriation, vested in the individuals; for,though they are instances of adopting, not of discharging, subjects; yet, if Great Britainwould (ex gratia) protect a Russian naturalized by service, in her fleet, it is obvious thatshe cannot do so without recognizing his right of expatriation to be superior to theEmpress's right of allegiance. But it is not only in a negative way, that these deviations insupport of the general right appear. The doctrine is, that allegiance cannot be due to twosovereigns; and taking an oath of allegiance to a new, is the strongest evidence of

withdrawing allegiance from a previous, sovereign.And

The power of naturalizing has been vested in several of the state governments, and it

now exists in the general government; but the power to restrain or regulate the right

of emigration, is no where surrendered by the people; and it must be repeated, that,what has not been given, ought not to be assumed. It may be said, however, that such

a power is necessary to the government, and that it is implied in the authority to

regulate the business of naturalization. In considering these positions, it must be

admitted, that although an individual has a right to expatriate himself, he has not a

right to seduce others from their country. Hence, those who forcibly, or seductively,

take away a citizen, commit an act, which [p*143] forms a fair object of municipal

police; and a conspiracy or combination, to leave a country, might, likewise be

properly guarded against. Such laws would not be an infraction of the natural right of

individuals; for, the natural rights of man are personal; he has no right to will for

others, and he does so, in effect, whenever he moves the mind of another to his

purpose, by fear, by fraud, or by persuasion.And

But naturalization and expatriation are matters of internal police; and must depend

upon the municipal law, though they may be illustrated and explained by the

principles of general jurisprudence. It is true, that the judicial power extends to a

variety of objects; but the Supreme Court is only a branch of that power; and

depends on Congress for what portion it shall have, except in the cases of

ambassadors, &c. particularly designated in the constitution. The power of declaring

whether a citizen shall be entitled in any form to expatriate himself, or, if entitled, to

prescribe the form, is not given to the Supreme Court; and, yet, that power will be

exercised by the court, if they shall decide against the expatriation of Captain Talbot.

Let it not, after all, be understood, that the natural, loco-motive, right of a free citizen,


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is independent of every social obligation. In time of war, it would be treason to

migrate to any enemy's country and join his forces, under the pretext of expatriation.

1 Dal l. Rep. 53, and, even in time of peace, it would be, reprehensible (say the writers

on the law of nature and nations) to desert a country labouring under great

calamities. So, if a man acting under the obligations of an oath of office, withdraws to

elude his responsibility, he changes his habitation, but not his citizenship. It is not,

however, private relations, but public relations; private responsibility, but public

responsibility; that can affect the right: for, where the reason of the law ceases, the

law itself must, also, cease. There is not a private relation, for which a man is not as

liable by local, as by natural, allegiance;--after, as well as before, his expatriation: He

must take care of his family, he must pay his debts, wherever he resides; and there is

no security in restraining emigration, as to those objects, since, with respect to them,withdrawing is as effectual, as expatriating. Nor is it enough to impair the right ofexpatriation, that other nations are at war; it must be the country of the emigrant. No nationhas a right to interfere in the interior police of another: the rights and duties of citizenship,to be conferred, or released, are matter of interior police; and yet, if a foreign war couldaffect [p*145] the question, every time that a fresh power entered into a war, a newrestraint would be imposed upon the natural rights of the citizens of a neutral country;

which, considering the constant warfare that afflicts the world, would amount to aperpetual controul. But the true distinction appears to be this:--The citizens of the neutralcountry may still exercise the right of expatriation, but the belligerent power is entitled tosay, "the act of joining our enemies, flagrante bello, shall not be a valid act ofexpatriation." By this construction, the duty a nation owes to itself, the sacred rights of thecitizen, the law of nations, and the faith of treaties, will harmonize, though moving indistinct and separate courses. To pursue the subject one step further: A man cannot owe

allegiance to two sovereigns. 1Bl . Com.He cannot be citizen of two republics. If a man

has a right to expatriate, and another nation has a right and disposition to adopt him,

it is a compact between the two parties, consummated by the oath of allegiance. A

man's last will, as to his citizenship, may be likened to his last will, as to his estate; it

supersedes every former disposition; and when either takes effect, the party, in onecase, is naturally dead, in the other, he is civilly dead;--but in both cases, as good

Christians and good republicans, it must be presumed that he rises to another, if not

to a better, life and country.An act of expatriation, likewise, is susceptible of variouskinds of proof. The Virginialaw has selected one, when the state permits her citizens

to depart; but it is not, perhaps, either the most authentic, or the most conclusive that

the case admits. It may be done obscurely in a distant county court; and even after

the emigrant is released from Virginia, to what nation does he belong? He may have

entered no other country, nor incurred any obligation to any other sovereign. Not

being a citizen of Virginia, he cannot be deemed a citizen of the Uni ted States. Shall he

be called a citizen of the world; a human balloon, detached and buoyant in the

political atmosphere, gazed at wherever he passes, and settled wherever he touches?But, on the other hand, the act of swearing allegiance to another sovereign, is

unequivocal and conclusive; extinguishing, at once, the claims of the deserted, and

creating the right of the adopted, country.Sir William Blackstone, therefore, considers itas the strongest, though an ineffectual, effort to emancipate a British subject from hisnatural allegiance; and the existing constitution of France declares it expressly to be acriterion of expatriation. The same principle operates, when the naturalization law of theUnited States provides, that the whole ceremony of initiation shall be performed in the

American courts; and if it is here considered as the proof of adoption, shall it not beconsidered, also, as the test of expatriation? IfAmerica[p*146] makes citizens in that way,shall we not allow to other nations, the privilege of the same process? In short, to admit

thatFrenchmenmay be made citizens by an oath of allegiance to America, is, virtually, to


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admit, that Americans may be expatriated by an oath of allegiance to France. After thisdiscussion of principles, forming a necessary basis for the facts in this case, it is insisted,1st, That Talbotwas a naturalized citizen of theFrenchRepublic at the time of receiving acommission to command the privateer, and of capturing the Magdalena. He left thiscountry with the design to emigrate; and the act of expatriation must be presumed to beregular, according to the laws ofFrance,since it is certified by the municipality of Point a

Pitre, by the French Consul, and by the Governor of Guadaloupe. 2d, That Redickwasalso, a naturalized citizen of the French Republic, when he purchased the vessel, andreceived a commission to employ her as a privateer.

And

Ballardwas a citizen of Virginia, and also of the Uni ted States.

Within the united States of America a person granted naturalization is also granted citizenship,where as the Commonwealth of Australi a Constituti on Act 1900(UK) does not provide for this.

Section 51(xix) provides for naturalization.

As already extensively placed before the magistrates in previous proceedings (upon which I relybefore this Court also) some of the Colonies (now States) naturalized aliens and others didnt

however each and every Colony did have legislation in regard of citizenship and the rights tofranchise.

The Hansardrecords of the 2 March and 3 March 1898 Constitutional Convention Debatesmade clear that naturalization powers would be transferred from the Colonies to the newly to

be formed Commonwealth of Australia, as it would be approved by the British Parliament butCITIZENSHIP legislative powers would be retained by the States in the newly formed

Commonwealth of Australia.

Mr Quick proposed to give the Commonwealth of Australia constitutional powers todefine/declare CITIZENSHIP but this was defeated/refused by the Delegates!

I took occasion to indicate that in creating a federal citizenship, and in defining the

qualifications of that federal citizenship, we were not in any way interfering with our

position as subjects of the British Empire. It would be beyond the scope of the

Constitution to do that.

Therefore, even if the amendment of Mr Quick had succeeded it still was not intended to giveany legislative powers to the commonwealth of australia to interfere with the rights of any person

as a British subject.

Hansard 2-3-1898Constitution Convention Debates;

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

Dr. QUICK.-If we are to have a citizenshipof the Commonwealth higher, morecomprehensive, and nobler than that of the states, I would ask why is it not implanted in theConstitution? Mr. Barton was not present when I made my remarks in proposing theclause. 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 a federal citizenship,


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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 acolony, or citizens of a Commonwealth, but we would still be, subjects of the Queen.Isee therefore nothing unconstitutional, nothing contrary to our instincts as Britishsubjects, in proposing to place power in this Constitution to enable the Federal Parliamentto deal with the question of federal citizenship. An objection has been raised in variousquarters-as by the honorable and learned members (Mr. O'Connor and Mr. Wise)-to theeffect that we ought to define federal citizenship in the Constitution itself. I haveconsidered this matter very carefully, and it has seemed to me that it would be mostdifficult and invidious, if not almost impossible, to frame a satisfactory definition. There is

in the Constitution of the United States of America a cast-iron definition 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 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 learnedmembers (Mr. Wise, Mr. O'Connor, and Mr. Symon) would be the first to attack any

definition, and would 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 theCommonwealth will seek to derogate from it, but I will not place a power in the hands ofthe Commonwealth which will enable them to derogate from it, and if that is not done itwill be merely a dead letter. Is there any citizen of the Commonwealth who is not already a

citizen of the state? State citizenshipis his birthright, and by virtue of it he is entitled to thecitizenshipof the Commonwealth. When you have immigration, and allow differentpeople 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.

Sir EDWARD BRADDON.-They are citizens if they are British subjectsbefore theycome here.

Mr. SYMON.-That is a point I do not wish to deal with. But they become citizens of

the states, and it is by virtue of their citizenship of the states that they become citizens

of the Commonwealth. Are you going to have citizens of the state who are not citizens

of the Commonwealth?

Mr. KINGSTON.-In some states they naturalize; but they do not in others.

Mr. WALKER.-Is not a citizen of the state, ipso facto, a citizen of theCommonwealth?

END QUOTE


QUOTE


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The Hansardrecords of the 2 March and 3 March 1898 Constitutional Convention Debatesmade clear that naturalization powers would be transferred from the Colonies to the newly to

be formed Commonwealth of Australia, as it would be approved by the British Parliament butCITIZENSHIP legislative powers would be retained by the States in the newly formed

Commonwealth of Australia.

Mr Quick proposed to give the Commonwealth of Australia constitutional powers todefine/declare CITIZENSHIP but this was defeated/refused by the Delegates!

I took occasion to indicate that in creating a federal citizenship, and in defining the

qualifications of that federal citizenship, we were not in any way interfering with our

position as subjects of the British Empire. It would be beyond the scope of the

Constitution to do that.

Therefore, even if the amendment of Mr Quick had succeeded it still was not intended to giveany legislative powers to the commonwealth of australia to interfere with the rights of any personas a British subject.

END QUOTE

As such it was beyond the judicial powers of the High Court of Australia to determine otherwisein Sue v Hi ll! And again none of the Attorney-Generals challenged any of my extensivesubmissions! As such they are deemed to have accepted the correctness of my submissions!


QUOTE

For the record, it ought to be understood that my naturalization never involved any State official,as it was done at 55 Kings Street, Melbourne at the then offices of the Immigration Department,and as such unlike most other people my naturalization was purely conducted by Commonwealth

of Australia officers, who obviously lacked any constitutional powers to provide me withfranchise as that was a State matter. It can therefore neither be argued that somehow the state

of Victoria did provide me with franchise as it never did. It erroneously relied upon theULTRA VIRESAustralian Citi zenship Act 1948as to somehow take it that I was grantedfranchise where clearly this never could be so.

In the Moller v Board of Examiners for Legal Practitionerscase it is clear that some oath ofalliance was required. Now, if there was some change of oath of alliance because of

purportedly the Commonwealth of Australia having become INDEPENDENT then at what timewas the oath of alliance taken by lawyers to practice at the Victorian Bar valid? And, when did

lawyers already have taken this oath of alliance to the British Monarch then make a new oath

of alliance to the purported Queen of Australia? Or is it that we have lawyers (includingjudicial officers) where some have sworn an oath of alliance to the LEGAL FICTION of

Queen of Australia while others to the British monarch?

I take the position that it is not relevant what the High Court of Australia may purport to makeout of matters in the Sue v Hi llcase, as ultimately it is ULTRA VIRESwhere they are makingdecisions that are in conflict to the intentions of the Framers (and so amended by the successfulreferendums) as expressed in the Constitution.I view it is beyond constitutional powers for the High Court of Australia to interfere withconstitutional provisions and as such we are and remain to be British nationals and ultimately itwill be up to the people to decide otherwise.END QUOTE


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QUOTE

The term citizenship was not at all associated with nationality but rather covered any

subject of the Queen residing within the Commonwealth of Australia or for that the continent

Australia.

The terms Australian citizen, Australian citizens , Australian citizenship,Commonwealth citizens, federal citizen, citizen of the Commonwealth were used ongoing

by the Framers of the Constitution, as shown below, and as such were terms notas tonationality but in regard of citizenship as being a resident in the colonies (now States) and the

Commonwealth of Australia. Therefore any constitutionalist, as I am, is or should be aware thatthe term Australian citizenship cannot be held to relate to nationality. Neither that there can bean Australian nationality merely because some judges happen to desire to make such a

declaration as the proper powers to legislate for this is to follow the procedures within Section128 of the Constitution.

13-02-1890 Re; Australian citizen

13-03-1891 Re; Australian citizens25-03-1897 Re; Australian citizens

Re; dual citizenship26-03-1897 Re; citizen of the Commonwealth29-03-1897 Re; Dual citizenship30-03-1897 Re; federal citizen

Re; dual citizenship31-03-1891 Re; Australian citizen

Re; citizen of the CommonwealthRe; dual citizenship

12-04-1897 Re; citizen of the Commonwealth

14-04-1897 Re; citizen of the Commonwealth15-04-1897 Re; Dual citizenship15-09-1897 Re; citizen of the Commonwealth

Re; Commonwealth citizenshipRe; dual citizenship

17-09-1897 Re; citizen of the Commonwealth24-01-1898 Re; Australian citizen28-01-1898 Re; Australian citizenship

Re; Commonwealth citizens04-02-1898 Re; citizen of the Commonwealth08-02-1898 Re; Australian citizenship

Re; Commonwealth citizenshipRe; citizen of the CommonwealthRe; federal citizenshipRe; dual citizenship

15-02-1898 Re; citizen of the Commonwealth23-02-1898 Re; citizen of the Commonwealth24-03-1898 Re; citizen of the Commonwealth01-03-1898 Re; Australian citizens

Re; citizen of the Commonwealth02-03-1898 Re; citizen of the Commonwealth

Re; federal citizenshipRe; Commonwealth citizenship


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Re; dual citizenship03-03-1898 Re; citizen of the Commonwealth

Re; federal citizenshipRe; Commonwealth citizenship

04-03-1898 Re; citizen of the Commonwealth10-03-1898 Re; Australian citizenshipEND QUOTE

Hansard 28-1-1898 Constitution convention Debates (Official Record of the Debates of the NationalAustralasian Convention)QUOTE

Mr. KINGSTON.-By its lessees or any one else. Pushed to a legitimate conclusion his argument wouldamount to this: That the state might dictate as to the right with which each person could step ashore on to thatsoil. I do not think the matter should be viewed solely with regard to our dealing with alien races, who willchiefly come within the scope and purview of this sub-section. We ought to deal with the matter not on localor provincial, but on broad Australian lines. I know that in this respect I differ a good deal from many withwhom I generally work in sympathy, but the view which I venture to propound is this-that if you do not

like these people you should keep them out, but if you do admit them you should treat them fairly-

admit them as citizens entitled to all the rights and privileges of Australian citizenship.

END QUOTE

.Hansard 8-2-1898Constitution Convention Debates

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 QUOTE

We also have the utter and sheer nonsense that somehow the Parliament can rob the SupremeCourt of Victoria of its judicial powers by referring matters within s51(xxxvii) to thecommonwealth. As French J (as he was then known Now French CJ of the High court of

Australia) made clear that s51(xxxvii) does no more but to give the Commonwealth of Australiathe powers to accept a reference of powers, but it doesnt provide for the States to do so. It is

upon the State electors to approve by way of State referendum if any legislative powers (and soassociated judicial powers) can be transferred to the Commonwealth.Likewise so about every purported reference of legislative powers!How idiotic that a particular political party may desire to refer its entire legislative powers to thecommonwealth and the citizens of Victoria be denied any say in it.Citizens are entitled to be judges under Victorian law and Common law and the parliament hasno legislative powers to deny this and transfer it willy nilly to the Commonwealth.

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

Australasian Convention)QUOTE Mr. CARRUTHERS(New South Wales).-

It does not require a majority of the states to insist that the constitution shall be obeyed, because a

majority of the states cannot by resolution infringe the constitution.

END QUOTE.

As indicated above if there are no citizenship laws by the State then how can one then

determine who is or is not a citizen? How then can any judge be deemed to be a peer ass to

adjudicate?Even the High Court of Australia is bound to hear and determine certain matter by common

law!



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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 lawof 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 or

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

it is the whole body of the people, the more or less instructed body of the people, who have to

understand clearly everything in the Constitution, which affects them for weal or woe during the whole

time of the existence of this Commonwealth. We cannot have on the platform, when this Constitution iscommended to the people, lawyers on both sides, drawing subtle distinctions, which may or may not be

appreciated by the people.

END QUOTE.

HANSARD 12-4-1897Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention)QUOTE Mr. BARTON:

And then there is this proviso:Provided that no fact tried by a jury shall be otherwise re-examined in the High Court than according to the

rules of the common law.END QUOTE

This relates to the common law of the States , as people would be tried by their peers in theState the alleged offence eventuated!.


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 AustralasianConvention)QUOTE Mr. ISAACS.-

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

Yet, what we find is that generally lawyers do not understand/comprehend the true meaning andapplication of the constitution and when appointed to the judiciary bring this to the judiciary..

When it comes to the judiciary then the chief Justice is like the President of the Upper House andthe Speaker in the Lower House the ultimate decision maker. A Premier has no power over theSpeaker and neither over the President and for that matter none either over the Chief Justice.

http://www.australasianlawyer.com.au/news/judges-escape-random-breath-testing-measures-210784.aspx

Judges escape random breath testing measures

QUOTE

The Victorian government has backed away from a plan to give the chief justice, chief judge and the

chief magistrate the power to randomly breath-test the judiciary.END QUOTE

http://www.australasianlawyer.com.au/news/judges-escape-random-breath-testing-measures-210784.aspx

Judges escape random breath testing measures

QUOTEThe promise was also made to test MPs, but it is unclear whether or not this will go ahead, the governmentsaying the decision rests on speaker Telmo Languiller and Legislative Council president Bruce Atkinson.

END QUOTE

The Chief Justice is the ultimate person holding the power to decide if judges shall or shall not berandomly or otherwise tested for alcohol/drugs, etc. He/she needs no permission from theParliament and/or the government to do so.
mailto:[email protected]:[email protected]:[email protected]://www.australasianlawyer.com.au/news/judges-escape-random-breath-testing-measures-210784.aspxhttp://www.australasianlawyer.com.au/news/judges-escape-random-breath-testing-measures-210784.aspxhttp://www.australasianlawyer.com.au/news/judges-escape-random-breath-testing-measures-210784.aspxhttp://www.australasianlawyer.com.au/news/judges-escape-random-breath-testing-measures-210784.aspxhttp://www.australasianlawyer.com.au/news/judges-escape-random-breath-testing-measures-210784.aspxhttp://www.australasianlawyer.com.au/news/judges-escape-random-breath-testing-measures-210784.aspxmailto:[email protected]


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The chief Justice is responsible for the judiciary and so is also responsible that the courts arefunctioning appropriately. Meaning that the government cannot close down court venues, as itongoing has done, without the consent of the Chief Justice. And it also means the chief Justicecannot tolerate a de facto court system like VCAT and the purported Infringement Court tooperate that undermines the judiciary and violates the legal principles embedded in theconstitution. This as the Chief Justice holds his/her position for no other reason but because theconstitution provides for a separation of powers for the judiciary and as such the chief Justicecannot flaunt the constitution and so its embedded legal principles merely upon his/her wimps.Yet the hypocorism of the Chief Justices are in my view ample.After all consider the following also:

On 19 July 2006 I succeeded in both appeals in the country court of Victoria in whichproceedings I also on constitutional grounds challenged the validity of the county court ofVictoria as to adjudicate where it fails to be adhering to the separation of powers. By beingassociated as Business Unit 19 with the Department of Justice using the same ABN.How indeed can the county court of Victoria to be independent and impartial where it uses thesame business registration (ABN) as the Department of Justice, the Prostitution controlCommission, the Sheriffs Office, etc?

Indeed, as the Courts must be separate it shouldnt even use an ABN number as theCommonwealth cannot tax the judiciary.Either the sheriffs Office falls under the Courts or under the Government, not both!It also means that the governments protection Services have no business to be in the courts. It also means that those dealing with the courts computers must be independent from thegovernment, including those who maintain computers.Take for example the ABN/CAN registration that Phillips J referred to as Unit 19 of theDepartment of Justice It is a violation of the independence of the judiciary. The moment one accepts for the government to tax the judiciary in any shape or form itundermines the independence of the judiciary. As a matter of fact the authorities on record provethat the commonwealth cannot tax a State government Department without its consent. As such

the same applies to the judiciary as constitutionally its independence is secured. As such the Stategovernment cannot, nor so the Commonwealth, legislate to tax the judiciary because it then coulduse this to interfere/undermine the independence/impartiality if the judiciary. Otherwise theGovernment can pursue the Parliament to increase taxation on the judiciary as a way to get it tofall in line with government policies with its rulings.And as Phillips J made known that the government had access to its court computers. As such,what stop the government to amend a reason of judgment to be hand down by a judge to be morein favour of the government?From The Agehttp://www.theage.com.au/news/Opinion/The-corporatising-of-our-courts/2005/03/23/1111525218521.htmlThe corporatising of our courts Retirement speech of John K. Phillips, Supreme Court of Victoria, March 24, 2005QUOTE

As we all know, the independence of the judiciary is a cornerstone of our constitutional system,

particularly the independence of this court, which must, from time to time, tell the political arms what

they can and cannot do according to law. As a court we will rarely, if ever, be popular with politicians,

but while I have been sitting here, I have seen what appears to me to be some erosion of this court's

independence.

END QUOTE

Clearly, the wording As we all know, the independence of the judiciary is a cornerstone of our

constitutional system indicates that this justice held there was a separation of powers within

state level.
mailto:[email protected]:[email protected]:[email protected]://www.theage.com.au/news/Opinion/The-corporatising-of-our-courts/2005/03/23/1111525218521.htmlhttp://www.theage.com.au/news/Opinion/The-corporatising-of-our-courts/2005/03/23/1111525218521.htmlhttp://www.theage.com.au/news/Opinion/The-corporatising-of-our-courts/2005/03/23/1111525218521.htmlmailto:[email protected]


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From The Age

http://www.theage.com.au/news/Opinion/The-corporatising-of-our-courts/2005/03/23/1111525218521.htmlQUOTE

The corporatising of our courtsRetirement speech of John K. Phillips, Supreme Court of VictoriaMarch 24, 2005In his parting words from the Supreme Court bench, John D. Phillips warns of a dangerous erosion of thecourt's independence.For more than 14 years I have been sitting here, and it has been hard and unremitting, but exciting and

rewarding - emotionally, I hasten to add, before I am misunderstood. But for much of that time I have had tobite my tongue.I refer to policy matters rather than the debate within a particular case. For, during my time on the bench, andespecially as I grew more senior, I have watched with some concern a change emerge in the perception of thiscourt by others and some blurring of essential distinctions. I want to speak briefly of that now because I have

been unable to say much about it until now and when my resignation becomes effective, I fear that nobodywill listen.As we all know, the independence of the judiciary is a cornerstone of our constitutional system, particularlythe independence of this court, which must, from time to time, tell the political arms what they can andcannot do according to law. As a court we will rarely, if ever, be popular with politicians, but while I have

been sitting here, I have seen what appears to me to be some erosion of this court's independence.One of the most public examples recently was the refusal of the executive to accept the decision onremuneration handed down by the tribunal established by the Parliament for the very purpose of freeing both

Parliament and the executive from the invidiousness of the decision-making process over judicial salaries andso ensuring the independence of which I am speaking.Less well known was the refusal of earlier governments to allow that the court's own chief executive officer

be appointed by the Governor-in-Council and its insistence that that officer be appointed by and be ultimatelyanswerable to the Department of Justice, which is what happened.That appears now, if I may say so, to have been but part of a movement towards this court's becomingabsorbed into that department, and it is that to which I want to draw attention in particular; for such amovement must be reversed if this court is to have, and to keep, its proper role under the constitution.

This court is not some part of the public service and it must never be seen as such. Established as a court ofplenary jurisdiction and with supervisory jurisdiction over all other courts and tribunals, this court is the thirdarm of government, co-equal in concept with Parliament and the executive. Its role, inter alia, is to controland to limit those other arms according to law and to that end to stand between those other arms and the

citizen. Hence the emphasis on the court's independence, especially from the executive.Yet within the Department of Justice this court is now identified and dealt with - would you believe - as"Business Unit 19" within a section labelled "courts and tribunals", a section which indiscriminately includesall three tiers of the court structure and VCAT.This court is subject to direction on the raising of taxes in the form of court fees - in that these are prescribed

by departmental regulation, even if a part of those fees is redirected to the court by the department at itsdiscretion. The other day the department used a regulation to prescribe a procedure in this court, apparently indisregard, if not in defiance, of the convention that such matters are for rules of court. And perhaps most troubling of all: the judges' computers, which were provided by and through thedepartment, are but part of the departmental network. I do not say that departmental officers ordinarily availthemselves of the access that that affords; one hopes the department has some controls in place. But access is

possible, and that seems to me altogether inappropriate when the state, in one form or another, is the majorlitigant in this court, and sometimes on matters of critical import to the wider community.

Nobody is suggesting that the executive would ever seek to influence a judge's decision directly,otherwisethan by argument in open court, but what has been happening is more insidious. What is evolving is a

perception of the court as some sort of unit or functionary within the Department of Justice, a perceptionwhich is inconsistent with this court's fundamental role and underlying independence.Indeed I think it is fair to say that the Supreme Court, despite its dominant role within the court structure andits constitutional role vis-a-vis the other arms of government, is now seen by some in authority as no differentfrom a tribunal, nowadays the Victorian Civil and Administrative Tribunal in particular. That is simply notthe case; yet the distinction between a court and a tribunal has been steadily undermined over the years, and itmust be restored if the proper constitutional position is not 2to be subverted.The basic distinction is easy enough. A court exercises judicial power and must be, and be seen to be,impartial and so must be independent of all else. Accordingly, its judges are appointed once and for all, andideally, without hope of additional gain or reward from anyone, including any other arm of government.Hence Parliament's creation of the specialist remuneration tribunal. In contrast to a court, a tribunal, properly

so called, exercises administrative functions but not judicial power, and many things flow from that. Such atribunal may be an arm of the executive; its members may be appointed for fixed terms, with the possibility
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