12-020030320-affidavit-08 affidavit m47 of 2003

8/12/2019 12-020030320-Affidavit-08 Affidavit M47 of 2003

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IN THE HIGH COURT OF AUSTRALIAMELBOURNE OFFICE OF THE REGISTRY No. M of 2003

Affidavit

I, Gerrit Hendrik Schorel-Hlavka of 107 Graham Road, Rosanna East (Viewbank),

Victoria, Pensioner, make oath and say as follows;

1. I am the Applicant in this matter.2. That this Application leave to proceed for Orders Nisi is made in the national

interest of Australia, however, it is the applicants understanding that the high Courtof Australia lacks competence or the will to deal with matters of extreme nature in anappropriate manner as to avoid any undue delay.

3. The applicant, find that at times having to wait for a week to have a decision, notbecause it required a week to make a decision, but merely as it appears to the

applicant engineered delays to provide a decision. This, is a very serious matter forany Court of law to do, where the lives of so many and indeed the future of Australiais at steak. It appears to the applicant that the high Court of Australia has shown to bebias against the applicant, and the accumulation of the delays over a period of weekshas significantly caused the Applicant to question the honourable conduct of the highCourt of Australia. As such, the case is much an indictment against the high Court ofAustralia to have needlessly prevented matters placed before this Court to beconsidered and decided upon its MERITS. The Applicant has the view that the highCourt of Australia by this has indicated, albeit perhaps unintentionally, that the rule oflaw no longer it the primary objective and it sanctions, by its inactions, thoseTAKING THE LAW INTO THEIR OWN HANDS.

Whatever the outcome of the WAR against Iraq, forever will it be on the records thatthe High Court of Australia denied matters placed before this Court to be heard uponits MERITS, and in fact engineered or could be seen to have engineered unduedelays in handing down decisions, as to thereby frustrate litigation and perhaps by itavoid the Applicant to succeed in his Applications.

4. That the Applicant rely upon the following case law:Neil v Nott (1994) 68 ALJR 509 at 510 (High Court

A frequent consequence of self representation is that the court must assume

the burden of endeavouring to ascertain the rights of the parties which are

obfuscated by their own advocacy

This affidavit was filed by the Applicant GERRIT HENDRIK SCHOREL-HLAVKA

Of: 107 Graham Road, Rosanna East (Viewbank), In the State of Victoria, 3084
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Phone number: 039457 70209

5. That by way of 20 March 2003 faxed letter the Deputy Registrar of the High Court ofAustralia advised that Hayne J directed that Leave to Apply was required to proceedwith the said Application.

6. That for an application for Leave, the Applicant doesnt need to set out hisentire case, merely having to show to the Court that the applicant has a MERIT

in the case, irrespective if at the end of litigation the applicant might be

successful or not.

7. That the Applicant takes the view that the High Court of Australia is bias against theApplicant and in that regard likely will unduly deny any relief sought by theApplicant, upon what ever excuse, regardless being legally valid and/or applicable ornot.

8. The Applicant is seeking the relief as stated in the DRAFT ORDERS NISI, not as away to seek to interfere with the rights of a Federal Executive to deal with matters asprovided for within the Constitutional provisions, and subordinate legislation, but topursue, that the (purported) Federal Executive, and others acting on its behalf,conduct themselves in a manner which is within the defined constitutional powers ofthe Commonwealth, and is prevented to place the wellbeing and interest ofAustralians and others residing within the Commonwealth of Australia at uncalledrisk, and/or abuses legislative and/or other powers, to unduly cause humane and othersuffering, to any person, in breach of law and/or beyond the constitutional powersprovided for and/or any treaty existing and applicable. As well as, such other reasonsas is set out in the material placed before this Honourable Court.

9. That in relation to the United Nations the Applicant relies upon the following.March 11, 2003. UN Secretary General Kofi Annan took legal advice before warningtoday that US military action against Iraq without a Security Council mandate wouldflout international law, a UN official said. This also then includes any action byAustralia!

The relevant articles of the UN Charter are the following:Article 2 (iv) All Members shall refrain in their international relations from the

threat or use of force against the territorial integrity or politicalindependence of any state, or in any other manner inconsistent with thePurposes of the United Nations.

Article 24 (i) In order to ensure prompt and effective action by the UnitedNations, its Members confer on the Security Council primary responsibilityfor the maintenance of international peace and security, and agree that incarrying out its duties under this responsibility the Security Council acts ontheir behalf.


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Article 41 The Security Council may decide what measures not involving the useof armed force are to be employed to give effect to its decisions, and it maycall upon the Members of the United Nations to apply such measures. Thesemay include complete or partial interruption of economic relations and of rail,sea, air, postal, telegraphic, radio, and other means of communication, and theseverance of diplomatic relations.

Article 42 Should the Security Council consider that measures provided for in

Article 41 would be inadequate or have proved to be inadequate, it may takesuch action by air, sea, or land forces as may be necessary to maintain orrestore international peace and security.

Article 51 Nothing in the present Charter shall impair the inherent right ofindividual or collective self-defence if an armed attack occurs against aMember of the United Nations, until the Security Council has taken measuresnecessary to maintain international peace and security.

10.That the applicant has the understanding that a condition of the membership to theUnited Nations is that not the members upon their own accord decide what is or is notto be done but rather that it accepted that the Security Council does so, other then if a

member is under direct attack. As such, the Security Council only can authoriseenforcement of any resolution. Further, that Resolution 678 and 687 have beensupersededby resolution 1441, and therefore 678 and 687 are subject to 1441, andonly the Security Council has the legal position to determine if there was a failure ornot by Iraq to comply with resolution 1441 and what, if any action is authorised ifthere was any failure to comply, and as such Australia has no legal position to argueif it can upon its own or combined with other nations act, it simply can only executeany military force provided this is as a United Nations special sanctions to enforceresolution1441.Further, where there is a unilateral action to go to WAR, then this is a WARcondition that within the framework of the Commonwealth of Australia

Constitutionis an Act of WAR that can only be declared by the Queen, for this theGovernor-General. Neither does it matter if the united nations sanctions any WARagainst a nation as still the Australian troops could not be deployed unless there hasbeen a DECLARATION OF WAR, by the Queens representative, the Governor-General. Any treaty that would be beyond the constitutional powers of theCommonwealth of Australia Constituti on would be ULTRA VIRES for so far itexceeds this. As such, any Act of WAR, regardless if authorised by the SecurityCouncil, would nevertheless be subjected to a DECLARATION OF WAR. Failingsuch DECLARATION OF WAR, there is no constitutional/legal powers for theFederal Executive to involve Australia and so its troops into any WAR.To allow otherwise would to circumvent the very constitutional restrictions the

framers of the Commonwealth Constitution Bill 1898 implemented, without areferendum that is required otherwise to extend executive and/or legislative powersof the Commonwealth. It would make a mockery of the Commonwealth of AustraliaConstitution, as a Government of the day, seemingly with the blessing of the HighCourt of Australia, by its inaction, can run amok, plunge the country in a WAR,regardless of the constitutional/legal validity.


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Any treaty within Section 51 (xxix) external affairs, remains within the ambit oflegislative powers, peace, order and good government. And, only while such treaty

is subject to a law of the Commonwealth. Without any law, there can be no treatyconstitutionally entered into, this as the provisions of Section 51 are subject to tomake laws,and not to make agreements without making a law.No matter what therefore the United Nations Charter may or may not provide, unlessit is actually a part of law, it is not applicable, and neither then can the

Commonwealth pursue enforcement of any resolution.Where the United Nations Charter actually is made part of Australian law, then anyresolution is subject to any other law of Australia, to the constitutional limitationsapplicable.Commonwealth of Australia Constitution Act

(vi) the naval and military defence of the Commonwealth and ofthe several States, and the control of the forces to execute andmaintain the laws of the Commonwealth;

The constitutional limitations are clearly drawn to; defence of the Commonwealth andof the several States, meaning to be an attack upon any State, and and the control ofthe forces to execute and maintain the laws of the Commonwealth; meaning that the

armed forces are limited to be used to execute and maintain the laws of theCommonwealth, not to enforce United Nation resolutions, unless such resolution isin fact part of Australian law.The moment the United Nations Charter is part of Australian Law, then by this, thefederal executive (government) cannot operate contrary to such provisions. It meansthat the Government is bound to act within the provisions of the United NationsCharter.

Subj:If invading Iraq amounts to mass murdering Iraqi civilians then sue PM to stopitDate:10/02/03 6:15:02 PM AUS Eastern Daylight Time

From:[email protected]:[email protected]:[email protected]

Also, a former South Australian Supreme Court Justice, Elliott Johnston QC,wrote to the press on Thursday 23 January saying such a war would be illegalif pursued without UN Security Council authority. In effect he advised legalaction could be initiated in Australia by Australians, under the law of theUnited Nations Charter Act 1945.

Mr Elliott Johnston QC gave gratuitous advice that there is a case to be made

in the Australian Courts for legal action to stop the Howard LiberalGovernment from breaching the domestic Australian legislation of the UnitedNations Charter Act of 1945, which makes war, without a UN Security Councildecision, illegal.

Here's Elliott Johnston's legal view run as the line: UN needed for legal Iraqattack


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"In 1945, the federal parliament passed the Charter of the United NationsAct 1945, which, by section 3, approved the charter, the terms of which areset out in the schedule to the Act. The charter was thereby made part of thelaw of Australia.

By article 25 of the charter, the members of the UN agree to carry out thedecisions of the Security Council, which by article 39 is given the task of

deciding what measures are to be taken "to maintain or restore internationalpeace and security".There is one (and only one) exception to the obligation to comply decisionsof the Security Council.

Article 51 provides that any member of the UN has the right to defend itselfagainst "armed attack". There is no suggestion that Iraq has attackedAustralia or the US.In fact, the US has stated quite openly that there is no evidence that Iraq hadanything to do with September 11.

If the US attacks Iraq without the specific authority of the Security Council,it acts illegally, since it also has adopted the charter.

If the Australian Government supports the US in those circumstances, it actsillegally and is open to legal action

The obvious issue is also the statement;"In 1945, the federal parliament passed the Charter of the United Nations Act1945, which, by section 3, approved the charter, the terms of which are set outin the schedule to the Act.

An item set out in a schedule to an Act not necessarily has the same weight as the

item being stated in the main body of the Act. As such, it may very well be that theUni ted Nations Charter Act 1945, albeit having the United Nations Charter as aschedule, it still may not be an enforceable Act for so far as being the schedule only.This could be in both the case to pursue litigation and to pursue using armed forces!

Hansard1-3-1898[start page 1683]Mr. SYMON.-It is not a law if it is ultr a vires.Mr. GORDON.-It would be law by acquiescence. It would remain a law until

it was attacked.

AndMr. GORDON.-

Once a law is passed anybody can say that it is being improperly administered,

and it leaves open the whole judicial power once the question of ul tra vir es is

raised.Under the clause, as I have amended it, it will not prevent the plea of ultraviresbeing raised where it is accompanied with the plea of a conflict of law. If there


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is a state law and a Commonwealth law on the same subject, every citizen is entitledto know which be should obey. If he joins a plea of ul tra vir es with a plea of

conflict of law, that ought to be heard.

KOOWARTA V. BJELKE-PETERSEN (1982) 153 CLR 168

24. It should be made clear that no question arises as to the power of Australiato enter into the Convention. The Governor-General, exercising the prerogative

power of the Crown, can make treaties on subjects which are not within thelegislative power of the Commonwealth. However, the treatieswhen made arenot self-executing; they do not give rights to or impose duties on members ofthe Australian community unless their provisions are given effectby statute. The power of the Parliament to carry treaties into effect is not

necessarily as wide as the executive power to make them.

It ought to be clear that even so within the powers of $51(xxix) the Commonwealthcan make legislation for treaties to be made, such treaties cannot be overriding theconstitutional limitations, and as such, a treaty can only be enforced for so far suchenforcement lies within the constitutional confinements.

Where the United Nations Charter is a mere schedule of the United NationsCharter Act 1945, then this even further places in question the validity ofenforcement, where it fails to be actually an Act of Parliament. Schedules do notneed to be an Act of Parliament, and as such do not necessarily fall within the ambitof Section 51 to make laws and as such neither could be enforced, certainly not beenforced by using armed forces.In any event, even if it were to be held to fall within the ambit of Section 51 to makelaws, then it would still be subjected to the constitutional requirement governing

normal warfare, that being that only the Governor-General (for the Queen) candeclare WAR or PEACE.It would also mean that any funding of the armed forces for a WAR in Iraq would be

unconstitutional! And, a WAR tax would also be unconstitutional, as the framersmade clear that the Commonwealth had only taxable legislative powers in regard ofcustoms and directtaxation.

Hansard9-9-1897;The Right Hon. G.H. REID:I strongly support the amendment for the

reasons which my hon. and learned friend has hinted at. This is an expressionwhich would be more in place in the United States Constitution, where treatiesare dealt with by the President and the senate, than in the constitution of acolony within the empire. The treaties made by her Majesty are not bindingas laws on the people of the United Kingdom, and there is no penalty for

disobeying them. Legislation is sometimes passed to give effect to treaties,but the treaties themselves are not laws, and indeed nations sometimes findthem inconvenient, as they neglect them very seriously without involving anyimportant legal consequences. The expression, I think, ought to be omitted. Iwill deal with the other suggested amendments when the time comes.

Hansard9-3-1898


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Mr. DEAKIN (Victoria).-The position of my honorable and learned friend(Mr. [start page 2092] Higgins) may be perfectly correct. It may be that withoutany special provision the practice of the High Court, when declaring an Actultra vires, would be that such a declaration applied only to the part whichtrespassed beyond the limits of the Constitution. If that were so, it would bea general principle applicable to the interpretation of the whole of theConstitution.

Hansard10-3-1898 Mr. BARTON(New South Wales).-

Then, again, there is the prerogative right to declare war and peace, an

adjunct of which it is that the Queen herself, or her representative, where

Her Majesty is not present, holds that prerogative. No one would ever

dream of saying that the Queen would declare war or peace without the

advice of a responsible Minister.Wherefore, we all came to the conclusion,as constitutional writers have long come to the conclusion, that the

prerogative is given in trust for the people, and is, therefore, only

exercised at the instance of a responsible Minister. I should like to know

whether there would not be a revolution in England if the Queen chose to

declare war or to make peace without the sanction or advice of aresponsible Minister?

What is essential applicable is that any Act of WAR, other then to the defence of aState under immediate attack, must be subject to a DECLARATION OF WARbythe Queen, so the Governor-General, and in principle only upon the advise of hisresponsible Minister. The Governor-General can refuse to make aDECLARATION OF WAR, as he is not bound to accept the advice given.

Further, a PEACE DECLARATION can only be made by the Queen, so theGovernor-General, and only is this done upon the advise of the responsible

Minister, if such advise is accepted by the said Governor-General.

It means that the prime minister of the day has no legal standing to declare war, forceany troops to go to WAR, as the responsible Minister could only be the Minister ofState appointed over the armed forces. The minister of State however cannotcommend the armed forces without consent of the Governor-General being the ChiefCommander of the Armed Forces. It means, that the Governor-General cannotallow constitutionally the armed forces to go to War upon the directions of theminister of State (minister of Defence) without a DECLARATION OF WAR.As such, in every way, any WAR involving Australian troops isunconstitutional/unlawful!

The Prime Minister has no constitutional/legal position to commit any Australiantroops to any WAR, only the Minister of Defence can make that decision upon theapproval of the Governor-General by having made a DECLARATION OF WAR!

11.That the High Court of Australia, by its delays and refusals to allow matters to beheard upon their MERITS, has already by its own action undermined considerably


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the ability of the Applicant to obtain the relief sought. This, as the applicant soughtorders to withdraw Australian troops from any war zone and to prohibit theinvolvement of Australian troops in any WAR with Iraq, upon constitutional andother legal grounds, this obviously as such is now unattainable. However, troops canstill be drawn out of the WAR zone.

12.The Applicant has since 20 November 2001 placed his appeal M114 of 2001 beforethis Court, and as such didnt wait until the last minute to file such an Appeal,contesting the validity of the purported 10 November 2001 federal election. Yet, evenby now the High Court of Australia did absolutely nothing to expedite this Appeal!This, even so a lawyer for the Commonwealth admitted that this appeal hasMERITS. As such, the applicant has the view that the High Court of Australia hasengineered to prevent the hearing of the appeal within a reasonable period of time asto prevent the Applicant to succeed against the Commonwealth! This, the Applicantviews, would be/is an act of TREASON.

13.The Applicant might not be a lawyer, but his material places beyond doubt issuesbefore the Court that never before have been litigated appropriately before the Courts

and those issues have been placed in question by past judgments. Where then theapplicant has filed supportive material in support of his applications, then any, as theapplicant views it, engineered delay tactics and other incomprehensible conduct toprevent matters to be heard upon their MERITS, must be deemed a gross and utterfailure of the High Court of Australia to conduct itself as a Court of Law.

14.The Applicant views that the Rules of the Court are used in a way preventing anyspeedy and proper determination of an extreme urgent matter and must be amended toprovide in extreme circumstances a party an opportunity to have matters consideredupon their MERITS, before the event against which relief is sought eventuate.

15.That the Applicant filed on 18-2-2003 a DRAFT ORDER NISI supported by anabout 60 page Affidavit with about 700 pages of Exhibit material, by directions ofHayne J this was not allowed by the Registrar to be acted upon, and it was send backby mail. The direction being that an application needed to be made for leave. Suchleave was subsequently refused by GUMMOW J on 5-3-2003.

16.The Applicant now seeks to place before this Court a drastically reduced Application,basically dealing with the election issues and orders to provide that in the meantimethe purported government will only be acting as a CARE TAKING Governmentuntil proper elections have been held, and for this is prohibited to take any militaryaction other then to respond to any direct attack upon any State/Territory of the

Commonwealth of Australia.

17.The Applicant has from past experiences the understanding that if a particularApplication has been refused to proceed, then one can file part of the sameApplication subsequently, as long as it does not use the specific issues the Court


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pointed out to refuse for filing, and also in the case of a change of circumstances,such as having now an actual WAR condition, then the filing is appropriate.

18.Gummow J in his judgement of 5 March 2003 did not identify a single issue andneither addressed the MERITSof any issue that was sought to be litigated. As such,the Applicant was well entitled to lodge Applications where none of the issues heseeks to be litigated have been determined upon their MERITS.

19.The Applicant is a person who has no formal education in the English language andneither was English his native language. Further, the Applicant had no formaleducation in law. As such, the Applicant is conversing matters in a language he hasadapted with, and uses his expressions to his understanding, which may or may not becorrect, or be correctly understood.

20.If in the end, the High Court of Australia were, so to say, not to engineer anyapplication/appeal to be RAILROADED, find that the 10 November 2001 purportedFederal election was null and void and so the purported election outcome, it would inthe meantime actually have allowed an unconstitutional/unlawful Government to go

to WAR! It is for this, that the applicant views that unlikely he can trust the HighCourt of Australia without bias to deal with the litigation, as its own credibility, so tosay, is on the line.

21.That the then Care Taking prime minister Mr John Howard misled the Governor-General (by this indirectly the Governor of each State), about the true applicableelection timetable, by this causing also the issue of defective writs.

22.That despite the request by the Governor-Generals Department for the Proclamationfor the Prorogue of the Parliament at 11.59 am on 8 October 2001 and the dissolutionof the House of Representatives at 12 noon on 8 October 2001 to be published in a

Special Gazette, the Commonwealth failed to actually publish on 8 October 2001 thisProclamation. It did not publish the Proclamation until Special Gazette s421 wasactually published on 9 October 2001 in Canberra and thereafter, as late as 22October 2001 in Tasmania. By this, causing all wits issued by the Governor-Generalto be defective, as at the time of issue the writs, there were no vacancies of any seats!

23.The Applicant sought to file an application in the High Court of Australia on 1November 2001 for injunctions against the Commonwealth Electoral Commission, asto hold any purported federal election, upon the grounds that all writs were issueddefective, and so were null and void. The defects to included that the writs failed tocomply with the legislative and/or constitutional provided timetables.

24.The Deputy Registrar of the High Court of Australia, Melbourne office, on 1November 2001 advised the Applicant that in view of Section 383 of theCommonwealth Electoral Act 1918, the appropriate Court was the Federal Court ofAustralia.


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25.The Applicant filed on 2 November 2001 his case in the Federal Court of Australia,seeking injunctions, and the matter was heard that day before Finkelstein J. givingcertain directions, and adjourning the matter to be heard on 7 November 2001,pending service upon the Australian Government Solicitors for all Defendants. HisHonour acknowledged that the Applicant did not seek to contest the election as it hadnot been held, but contested the validity of the writs.

26.On 7 November 2001 the matter was determined before Marshall J, that is that HisHonour refused to hear the matter upon basis that the Applicant sought to contest theelection by a backdoor manner. This, even so the case was one to seek injunctions!His Honour dismissed the case upon the grounds that there was no legal jurisdictionand ordered cost, citing the matter was one for the Court of Disputed Returns after theelection having been held. This, even so case law (authorities) abundantly dictate thatthe Court of Disputed returns cannot hear matters disputing general elections, andcertainly cannot issue injunctions of the kinds the Applicant sought prior to anelection being held.

27.The Applicant filed an appeal M114 of 2001 in the High Court of Australia bothagainst the judgment to dismiss and the Orders of cost. This appeal is stilloutstanding. The Deputy Registrar has indicated on 11 February 2003 that in the nextfew weeks she will attend to this appeal.

28.Since having filed the Appeal, the Applicant sought from the various governmentDepartment details/information but this was largely denied by all kinds of excuses,and other delayed for 9 months or more. Even the request for the rules of the Gazettepublications has not been provided since 21-12-2001 FOI Act request! However, thefew documents that were provided (finally) proves that the proclamation dated 5October 2001 for the Prorogue of the Parliament and the dissolution of the House ofRepresentatives was not actual published on 8 October 2001 in Special Gazette s421,

but that not until 9 October 2001 3 copies of this Special Gazette S421 wastransferred to Canberra Info Shop for publication. Hence, there was no valid Prorogueof the Parliament, or a valid Dissolution of the House of Representatives on 8October 2001. Yet, the writs for the general Federal election, so also the writs for theSenate, were all issued on 8 October 2001 upon the incorrect basis that theProclamation had been published. They were all issues using the wording accordingto law, albeit, none were! As such making each and every writ defective/null andvoid.

29.That the Special Gazette s421 neither was having the wording Governmentprinter or simular wording on it, as such was not a publication within the strict

meaning of Section 6 of the Act I nterpretation Act 1901.

30.That as the Proclamation was never validly proclaimed on 8 October 2001 and neitherwas any subsequent Proclamation published to remedy the defect of the publication ofthe 5 October 2001 signed Proclamation, then there never was a valid Prorogue of theParliament and neither a valid dissolution of the House of Representatives, and for


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this all members of both Houses of Parliament failure to attend to the next 3 monthsof sittings, by Section 20 or 38 of the Commonwealth of Australia Constituti onaredeemed to have vacated their seats.

31.That the writs issued on 8 October 2003 by the Governor-General were defective, notonly because they were issued prior to any Proclamation having been actuallypublished, but also because the writs were in breach of legislative provisions, such as

the election time table as applicable by Section 155,156 and 157 of the AustralianElectoral Act 1918, despite each writ stating according to law. It might be statedthat the Australian Electoral Commission prepared the defective writs for theGovernor-General.

32.That the writs issued by the Governor of each State were defective, in that they werenot according to law as was stated in each writ, where the Governors had been

misled as to the true applicable legislative timetable.

33.That contrary to the past ruling of the High Court of Australia, the framers arerecorded in the Hansard, that Section 30 of the Commonwealth of Australia

Constitutionis and remains subject to Section 41.

34.That where the Proclamation was defective, as it cannot be applied backdated, thenthere never wasany Prorogue of the Parliament, and/ or the dissolution of the Houseof Representatives, and by this all members of the 39 thParliament failing to attend tothe October, November and December 2001 sittings by virtue of Section 20 and 38 ofthe Commonwealth of Australi a Constituti onwere automatically no longer membersof Parliament, upon the expiry time of 2 months from the first day of sitting theyfailed to attend to.

35.Albeit, the Governor-General on or about 14 December 20 appointed the (Howard)Federal executives, however, not being duly and properly elected their term expiredon or about 14 March 2002. The Governor-General has no constitutional powers toappoint any person to be a member of the House of Representatives or the Senateunless this person is duly and properly elected. This never occurred. Hence, there isno Commonwealth Government or any 40th Parliament! As such, the Governor-General cannot be advised by a non-existing Federal Executive as to make adeclaration to go to war, as is required for any declaration of war. The framers madeclear that 3-year limit was to ensure that there be elections and after the 3 years allGovernment functions seized to exist, unless there was a new Parliament. The alwaysmust be a Parliament called or in session to maintain the laws of Australia and to havethem executed. A declaration of war is a prerogative right, not a political right!

36.That Section 9 of the Commonwealth of Australia Constituti on, as was indicated bythe framers as recorded in the Hansard, was to give the Commonwealth onlylegislative powers for the broadest system applicable but ultimately the Statesdetermined further the election of Senators. Therefore, it was never intended by theframers to allow the Commonwealth to deprive the States of their rights, indeed, it


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was set out considerably that this was not to be permitted, being it that Senateelections are State representative issues, not Commonwealth issues.

37.All timetables in each writ issued, by the Governor-General and/or the Governors,were incorrect, in conflict of the relevant legislated applicable timetable. As such,each and every writ was defective, and so null and void. Despite Section 9 of theCommonwealth of Australian Constituti on stipulating that the States decide the

times and places, the Australian Electoral Commission has been misleading theGovernment, the Commonwealth and the public, by printing such as in theCandidates handbooks) incorrect timetables for Senate elections and caused the writsby the Governors being defective issued. Also by this preventing electors to nominatewithin the timetable provided by the relevant State legislation but denied by thedefective writs.

38.That unless elections are conducted in accordance with constitutional provisions andany legislation within constitutional provisions, there can be no deemed FAIR ANDPROPERelections, and neither is any lawful elections held. The Australian ElectoralCommission cannot benefit of defective writs issued, which where the product of its

deceptive conduct. Also, the Australian Electoral Commission has no powers toconduct elections in breach of electoral legislated provisions, as such for this also thepurported 10 February 2001 election was null and void.

39.The Australian Electoral Commission and other Departments unduly obstructed theApplicant to obtain all relevant details/information within the provisions of theFREEDOM OF INFORMATION ACT, or otherwise, effectively obstructing theApplicant to place before this Court all relevant material. The request to theAustralian government Solicitors to instruct their clients to cooperate and releasedetails/information was responded upon that they would not do so. The result being,that the Australian Electoral Commission refused to disclose to the Applicant

important details, yet to the JSCEM (Joint Standing Committee on Electoral Matters)then provided details/information as to how it had prepared the writs for theGovernor-General, albeit not disclosing it had prepared defective writs!

40.Despite that Star Track Express, the company that does and did the transport ofSpecial Gazette S421 from the printers to the various Info Shops around Australia onits website maintains all records, the Government refused through its Departments todisclose all relevant details, as if most of the details do not exist. However, thiscompany guarantees to keep accurate records. Indeed, the computer records of theCommonwealth purports that Special Gazette S421 was transferred to all Info Shopsto which S421 was send occurred on 9 October 2001, albeit the Perth consignment

document proves that albeit the Despatch Date on the consignment note shows itwas dated 9 October 2001. The document shows that it was actually printed on08.17.33 am on 10 October 2001! The truth being that in some States there was nopublication of S421 on its own at all, such as in New South Wales, and the first copyactually published was on 18 October 2001, as part of government Notices GazetteGN41. The Same with Tasmania on 22 October 2001.


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The S421 was actually published in Victoria on 10 October 2001.In overall, writs were issued for the House of Representatives, before the seats werevacant, and as such all writs were null and void.WATSON v_ LEE (1979) 144 CLR 374;

To bind the citizen by a law, the terms of which he has no means

of knowing, would be a mark of tyranny.

41.The Applicant refers to Exhibit GHSH-1being the Special Gazette S421, which onthe bar code shows it, has the publication date 10/10/2001!

42.The Applicant refers to the Exhibit GHSH-2, being a document released by theCommonwealth under FOI Act, showing that the Special Gazette s421 containing the5 October dated Proclamation for prorogue the Parliament and dissolving the Houseof Representatives, was not actually transferred to Canberra until 9 October 2001, forpublication. As such, never could have been published on 8 October 2001.

43.The Applicant refers to his book on CD, INSPECTOR-RIKATI and theBANANA REPUBLIC AUSTRALIA, ISBN 0-9580569-3-5 which set out inconsiderable details these matters, including containing relevant copies ofdocumentation obtained from the Commonwealth to prove his case.

44.The Applicant refers to his book on CD, INSPECTOR-RIKAT & there is nogovernment to go to war, ISBN 0-9580569-5-1 which has a copy of the entire 16-2-2003 Affidavit with its 24 Exhibits and the full text of the DRAFT ORDER NISI, aswas lodged by the Applicant on 18 February 2003, and refused by Hayne J on 19-2-2003 to be acted upon.

45.That the Applicant was naturalized on 28 March 1994, in the offices of theImmigration Department, without any involvement of any State officer. Thecertificate issued purports that the Applicant was granted Australian citizenship on28-2-1994. This obviously was sheer nonsense, as the Commonwealth never hadconstitutional powers to define/declare citizenship. Where the Commonwealth has noconstitutional, powers to define/declare citizenship, then all political rights ofAustralians (naturalized or otherwise, are in question and so their rights and/orentitlements to vote in any Federal election. This, As in the State of Victoria the rightto be an elector is upon being an Australian citizens according to the AustralianCiti zenship Act 1948, an unconstitutional Act and so preventing any one in Victoriato be an elector. The applicant understands that in most other States/Territories thesame applies as with Victoria.

46.That the issue of citizenship also goes to the root of electors and so to the validityof any election. As the framers made clear in 1898 (see Hansard also) that thepolitical rights of a person was bound within the State citizenship, and the politicalrights in the Commonwealth was within Australian citizenship, which could only beobtained AUTOMATICALLYby being a State citizen.


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There is no constitutional powers by the Commonwealth to grant any person the rightto be an elector, without the person being a State elector. Again, the High Court ofAustralia erred in lawto hold that Section 41 of the Commonwealth of Australi anolonger is relevant. The truth is, that the framers specifically made clear that Section30 of the Commonwealth of Australian Constituti on was subject to Section 41.They also indicated that, so to say, Section 41 was for the long haul!Again, a full and proper set out of these matters is contained in the 16 February 2003

sworn Affidavit, which was lodged with the High Court of Australia on 18 February2003.

47.That the framers never intended to provide the Commonwealth with constitutionallegislative powers to define/declare citizenship is shown by the following quotation;

Hansard 2-3-1898

Mr. BARTON.-. I took occasion to indicate that in creating a federal citizenship, and in

defining the qualifications of that federal citizenship, we were not in any

way interfering with our position as subjects of the British Empire. It

would be beyond the scope of the Constitution to do that. We might becitizens of a city, citizens of a colony, or citizens of a Commonwealth, but

we would still be, subjects of the Queen.And;

If we are going to give the Federal Parliament power to legislate as it pleaseswith regard to Commonwealth citizenship, not having defined it, we may beenabling the Parliament to pass legislation that would really defeat all the

principles inserted elsewhere in the Constitution, and, in fact, to play ducksand drakes with it. That is not what is meant by the term "Trust the FederalParliament."

(Heather Hillwas and remained a Subject of the Queen, not being an alien!)

This statement was made in March 1898, shortly before the years of conventionscame to a close!

It may be noted that it was stated;

we may be enabling the Parliament to pass legislation that would really

defeat all the principles inserted elsewhere in the ConstitutionAs such, if the Commonwealth (Federal Parliament) were to define/declarecitizenship it thereby would control the political rights of electors of the States, andby this undermine the very guarantees/protections set out in the Commonwealth ofAustrali a Constituti on,to protect State rights.

48.That the High Court of Australia, purportedly declared that Section 41 of theCommonwealth of Austral ia Consti tuti onno longer is applicable. However, no suchconstitutional powers exist for the High Court of Australia to declare any part of theCommonwealth of Australi a Constituti on to be no longer applicable. However, theHansard proves that the framers intended this section 41 to be forever applicable!


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The High Court of Australia is limited by Section 71 only to interpret theCommonwealth of Australia Constituti onas to the legislative and executive powersof the Commonwealth, but lacks any constitutional powers to go beyond this. Assuch, has no power to declare any part of the said Constitutionnot being applicable.This is relevant to the issue as to who have a right to vote, as the Commonwealthnow allows persons to become electors without first being electors of a State, theprerequisite in Section 41 to have a right to vote in Federal elections, providing for

unconstitutional elections in that regard also.

49.That as the State of Victoria by its constitution requires a person to be an Australiancitizen, in accordance with the Australi an Citi zenship Act 1948, to be a State elector,and the State of Victoria has made clear it has no State citizenship, (as set out in the16 February 2003 Affidavit) then there are no State citizens, hence no State electors,therefore there can be no Australian citizenship and so no Federal electors. This is thesheer and utter mess that has been left, and while the Applicant realise that the HighCourt of Australia may desire not to deal with matters, it likely will be that as with theCross Vesting Act, after years it will be found that it is unconstitutional and then theharm could be far worse. There is no such thing as an Australian citizenship without

State citizenship, and there is no such thing as a Federal elector without being a Stateelector. Past High Court of Australia rulings indicating otherwise simply were errorsin law. Every Australian has and always had DUAL citizenship, being a Statecitizenship and a Commonwealth citizenship. It is by virtue of citizenship, and noother way, that a person obtains political rights. It is the State electoral enrolment thatdetermines their right to vote in Federal elections, not as is now unconstitutionallyenforced by the High Court of Australia that a person must be enrolled on aCommonwealth Electoral Roll (merely because the Commonwealthunconstitutionally provided for this in the Commonwealth Electoral Act 1918).

50.The Applicant is aware that his numerous arguments are directly contrary to thenumerous judgments handed down by the High Court of Australia, however, despitethat the Applicant is not a lawyer, nor had any formal education in the Englishlanguage, this does not mean that therefore the Applicant is wrong. Simply, theApplicant not, so to say, brainwashed to read something different then what was trulyintended by the framers, therefore is open minded and can read the true intentions.For example, Quick & Garran is used by lawyers as interpretation of citizenship.The Applicant however first read extensively the Hansard, and thereafter, evenwithout checking Quick and Garran, suspected that Quick and Garran likely wouldnever have published the defeat of Dr Quick in regard of wanting to give theCommonwealth the constitutional powers to determine/define citizenship. Upon this,obtaining a part of Quick and Garran, the Applicant recognised that Dr Quick not

only had omitted to record that defeat, but had written citizenship in a way as topurport that citizenship in Australia was akin to American and/or Canadian

citizenship. There was absolutely no mention that the State specifically were onlyentrusted to determine citizenship. Hence, the error by many lawyers not to realisethat while with the USA one obtain citizenship upon naturalization, in Australia,

one can obtain citizenship without needing to be naturalized. And, that one has to


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obtain State citizenship, without needing to make a formal application to theCommonwealth, and then AUTOMATICALLYwould obtain Australian citizenship.The framers made clear there was no constitutional powers for the Commonwealth tointerfere with the Crown, hence the Australi an Act for this also remains ULTRAVIRES, and that any British subject upon arrival and settling in a state couldAUTOMATICALLYbe an State citizen, and so an Australian citizen and there wasnothing the Commonwealth could do to prevent a British born subject to be excluded

from sitting in Parliament. Hence, Heather Hill was wrongfully denied to be aSenator! This, as constitutionally the Commonwealth has no powers to declare GreatBritain to be a foreign nation.

51.Likewise, the High Court of Australia seems to have misconceived the true intentionsof the framers, when interpreting Section 9 of the Commonwealth of AustraliaConstitution. It is not at all a section that give the Commonwealth all powers, such asin Section 51 to override any State legislation, rather that Section 9 was a very limitedlegislative power, where State legislation prevails as to determining the manner ofelecting senators, other then that the Commonwealth can legislate for a broad-basedsystem. By this, the power was with the States but the conduct was with the

Commonwealth as to how to conduct elections. Has the same been applicable withinSection 51 then the Commonwealth would have had the overriding powers in everyextent, this the framers specifically didnt want to give the Commonwealth! As

Section 51(xxxvii) does not at all provide for reference of legislative powers of the socalled Australi an Act, this Act never having been approved by referendum (as wasneeded to be constitutional valid) then is unconstitutional in its application.

52.The Applicant campaigned since 1992 about the invalid usage of the then CrossVesting Act, in fact was before the High Court of Australia in 1994 and 1995, yetended up nowhere. Yet, in HCA27 of 1997 Wakimcase, the High Court of Australiathen held it was unconstitutional! If just the High Court of Australia had bothered to

consider this very issue when the Applicant presented his cases. Likewise, it appearsto the Applicant that the High Court of Australia made numerous other errors in law,this in turn making it extremely difficult for the Applicant to obtain a FAIR ANDPROPER hearing before the High Court of Australia, in view that the criticismexposing errors in law then likely will make judges resentful against the applicant andso cause the denial to deal with matters to be heard upon their MERITS.

53.The Applicant received from the Government a warning as to possible terroristattacks, and as such, the Commonwealth has made clear that the Applicant could besubjected personally, as such making it very clear that the conduct of involvement inthe so called War against Terrorism and the Coalition of the willing makes it

to cause the personal involvement of the Applicant and his family. Therefore, theApplicant has the RIGHTto approach this Court to seek Orders, which may diminishthis danger. The Coalition of the Willing, identifies those nations who in breach ofUnited Nations provisions are willing to unlawfully go to war against a sovereignnation without lawful excuse or justification. By this places the lives of the Defenceforces unduly at risk also. Both, for harm and possible war tribunal charges.


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54.That the possible WAR against Iraq would be unconstitutional and without legaljustification, as set out in the 16 February 2003 Affidavit that was lodged on 18February 2003.

55.This Affidavit is not and should not be seen to set out all relevant material, as to do sowould mean that the 16 February 2003 Affidavit would have to be filed again.

However, as the Applicant refers to his published material and to the entire contentof the 16 February 2003 sworn Affidavit that was lodged on 18 February 2003, thenall that material must be considered as to be part of this Affidavit. As this Courtobviously doesnt like to have an Affidavit of huge volume, the Applicant therefore

pursues to file this initial Affidavit, with the right to file further additional supportivematerial for litigation.

56. The Applicant seeks that the ORDERS as stated in the DRAFT ORDERS NISIareissued, to avoid any further delay in people to obtain their liberty and so theirfreedom, as well as to ensure that Australia no further will be plunged into a WAR,with many thousands if not millions of innocent people to die.

57.The Applicant has been on a government benefit since 1986. Actually was severely indebt in 2000 by borrowing moneys to assist others through his special lifeline serviceunder the motto MAY JUSTICE ALWAYS PREVAIL. The Applicant is still, on agovernment benefit, and for so far it may be relevant his wife has been for manyyears retired. For this, considering the public interest the Applicant seeks that thiscourt provides orders that there be no orders for cost to deal with these matters, or inthe alternative the Commonwealth shall pay all cost of litigation. This, as had theCommonwealth acted constitutionally appropriate then none of this application wouldhave been required to be made. It ought not to be that lawbreaking Governmentscould get away with it to use public money to seek to railroad a case (as occurred

before Marshall J on 7 November 2001, when Mr Peter Hanks QCmade false andmisleading statements to the Federal Court of Australia, including substituting wordsof an alleged quotation of an Authority, to pervert the course of justice and to cause amiscarriage of justice. This all set out in the publications referred to above).

58.The Applicant is aware that this Court could yet again refuse to deal with mattersupon its MERITS, however, it ought to consider that if the Applicant in time is foundto be correct, that the purported 10 November 2001 Federal elections weredefective/null and void and therefore there was no constitutional elected government,then its failure to deal with matters since 1 November 2001 may be something that, soto say, may hound the High Court of Australia, with many deaths of innocent

civilians that could most likely have been avoided had the high Court of Australia onthe first place considered matters upon its MERITS. It would have left anUNCONSTITUTIONAL government to unconstitutionally wage war, tounconstitutionally imprison even Australian born persons, to unconstitutionallyinvade States and so the property of its residents, etc.


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59. The Applicant has forwarded copies of INSPECTOR-RIKATI and theBANANA REPUBLIC AUSTRALIA, Dictatorship and deaths by Stealth.Preliminary Book on CD edition, to some of the following persons, HM ElizabethII, Prince Charles, Mr George W. Bush, President Saddam Hussein, Prime MinisterTony Blair, and many others. Likewise, INSPECTOR-RIKATI & there is no

government to go to war. A book on CD About Legal Issues ConfrontingAustralia, is/will be published around the world, which contains copies of documents

filed in the High Court of Australia, including the directions of Hayne J of 19-2-2003.As such, irrespective of what the High Court of Australia may rule, the public will beable to obtain copies of the material that was placed before the High Court ofAustralia, time and again.

60.It are these and numerous other issues that the Applicant, being aware that he neededto file supportive evidence, did set out extensively in his 16 February 2003 swornAffidavit that was lodged on 18 February 2003 in the High Court of Australia. It be afruitless exercise for the Applicant to file the same material again, neither is this orought this to be needed, as after all, it is all available in publications referred to, and,the High Court of Australia can always obtain it all in electronic format on CD from

the Applicant.

61.The Applicant maintains that the Commonwealth has no constitutional powersto go to war other then by the intentions of the framers, that is that it must do so ifunder direct attack upon any State or in aid of the British fleet, where it is attacked.However, where the Commonwealth has declared Great Brittain a foreign nation,then it cannot have it both ways, so to say, eat the cake and have it. Deny Heather Hillbeing a Member of Parliament even so constitutionally entitled to be so, because ofits mischief to declare Great Brittain a foreign nation, while on the other hand seekingto ignore that it declared Great Brittain a foreign nation. As such, as long as the HighCourt of Australia maintains its position as to Heather Hill, then it must accept that

the only constitutional powers left to the Commonwealth is to engage in a militaryconflict only where there is a direct attack upon a State of the Commonwealth ofAustralia. For this also, even if the elections had been constitutionally or otherwisevalid in law, the Commonwealth still could not go to war against Iraq. Any Unitednation treaty (as the framers made very clear) would be ULTRA VIRES for so farsuch treaty was beyond constitutional powers.

62.The Applicant, being an Australia, is as much subject to possible terrorist attacks andother conflict as any other Australian and as such has again a right to pursue that thisCourt acts appropriately and without further delays. The Applicant having served inthe NATO, as part of the Dutch armed forces at the then Iron Curtain, and trained in

biological, chemical and nuclear weapons, has his concerns that any further delayby this Court to issue orders, may result that in the meantime an attack upon, say,Melbourne could result to millions of deaths.

63.Abraham LincolnStated the following on February 12, 1865:


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The people are the rightful masters of both Congress and

the Courts. Not to overthrow the Constitution, but to

overthrow the men who pervert the Constitution."

64.That with a likely pending war with Iraq, the Applicant seeks this Court to deal withmatters as a matter of urgency, in that if the Applicant is found to be correct and

have legal justification in being granted the Orders sought to prevent any militaryinvolvement of Australia in any armed conflict with Iraq, in the so calledOPERATION BASTILLE, then it may result to the prevention of loss of livesand/or any harm to any person involved, or caught, in any armed conflict.

65.That a lawyer for the defendant Judith McGillivray BA JBB (when attending tolegal proceedings with the Applicant on 4-12-2002) already had admitted to theApplicant, that in her view, having read the case outstanding upon Appeal before theHigh Court of Australia as M114 of 2001,there is MERITin the Appeal.

66.That the Applicant is not seeking the High Court of Australia to deal with whateverpolitical motives the government of the Day may pursue. The Applicant seeks thisHonourable Court to determine matters upon basis of law , and in this reflect thetrue intentions of the framers of the Commonwealth of Australi a Constitu tion! It isnot relevant if the Senate of the USA did or didnt approve a declaration of waragainst Iraq, as their position is a constitutional different one, then that provided for inAustralia. Neither is the subject of these proceedings if the USA may or may not havegenuine reasons to go to war, as it would be beyond the scope of this litigation toaddress those matters appropriately, and neither appears to be relevant. Australias

position as to going to war or not, must not be allowed to be dictated by some otherforeign nation. It must be based upon the constitutional provisions and limitations,and other relevant legislative provisions, governing Australia!

Devika Hovell, director of the International Law Project at the University of NewSouth Wales, recently returned from a stint at the International Court of Justice atThe Hague and she lectures on the laws of war, Stated;

However in this case the situation, as it stands, the evidence as it stands,

suggests that force without UN authorisation would be neither legal nor

legitimate.

67.That as Australia is one of the founders of the United Nations, and claims to beentitled to act upon any resolution against any country, then the Applicant takes theposition, that by this Australia is also bound to act within the provisions of the UnitedNationsCharter, and for this cannot take any military action against any other nation

unless so with the sanction of the United Nations, or unless there is a direct militaryattack upon the territories of the Commonwealth of Australia.

68.That on 5-2-2003 there was a vote of no confidencein the conduct of the purportedHoward Government in regard of with the conduct of deployment of Australian


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troops for an impending war with Iraq. As such, the Parliament does NOTapprove ofthis deployment.

69.That failing any declaration of war having been actually published, the Applicanttakes the position that any deployment of Australian troops, (with or without approvalof the United Nations, indeed contrary to the intentions of the United Nations) isunconstitutional, being without the approval of the Parliament.

70.Upon arrival at the Federal Court of Australia on 7 November 2001, for the hearing ofthe case, to pursue injunctions, and a CASE STATED, the Applicant found thattelevision crew were in the Court room, and during the subsequent hearing Marshall JStated; Dont steal my show., and This is my show..

71.That Marshall J never attended to the issue of CASE STATED, the Applicant hadbefore the Federal Court of Australia on 7 November 2001.

72.That at the 7 November 2001 hearing, before Marshall J of the Federal Court ofAustralia, 7 of the 8 Defendants were not appearing. At the time the evidence before

the Court was, by way of Affidavit, that in accordance with the 2 November 2002directions of Finkelstein J of the Federal Court of Australia, the Applicant hadserved upon the Australian Government Solicitors for all 8 Defendants, being 7 1 stDefendants (the Governor-General and all Governors) and the 2ndDefendant (beingthe Commonwealth also for the Australian Electoral Commission). Mr PeterHanks QC for the Australian Electoral Commission did not inform the Court as towho represented the 1stDefendants, albeit not until 9 August 2002 (some more then 9months later) the Australian Government Solicitors then claimed that they had beenunable to obtain instructions of the Governor-General and had not advised theGovernors of the litigation.

73.The Applicant takes the position/submits, that the matters before Marshall J requiredthe representation of all Defendants, unless they specifically choose not to presentthemselves) and as such the Australian Government Solicitors, via Mr Peter HanksQC deceived the Court, and the Applicant, and caused a miscarriage of justice.

74.That Applicant takes the position/submits that Mr Peter Hanks QC for theAustralian Government Solicitors representing the then 2nd Defendant, theCommonwealth, and the then newly created 3rd Defendant the Australian ElectoralCommission in a manner to conceal to the Court the true application of the variouselectoral laws, substituted words in an Authority quoted as to make it appear that theJudgment relied upon was to support the argument presented by Mr Peter Hanks QC,

made various false and misleading Statements as to the application of judgments andmisleading the Court as to the application of and not otherwise as Stated in Section

353(1) with further conduct to pervert the course of justice and to cause a miscarriageof justice.PAVLEKOVI C-SM ITH v AEC (1993) 115 ALR 641, Dawson J;


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If a challenge on justiciable grounds can be mounted to the validity of a generalelection a question that I need not consider such a challenge cannot beentertained by the Court of disputed Returns. It may be that the High Courthas such a jurisdiction but that has not been decided; see the dicta of Gibbs CJ inMcKenzie v Commonwealth.

Schorel v Elms (1994)Unreported M2944X of 1989 SA27 of 1993Page 16 and 17: -

"Justice must not only be done but must be seen to be done"

75.That Marshall J dismissed the case, upon the basis that there was no legal jurisdiction,with cost, albeit the Court had every legal jurisdiction to hear and determineapplications for injunctions, as sought by the Applicant. The Applicant simply heldhis case had been wrongly decided, as the term and not otherwise (Section 351Commonwealth Electoral Act 1918) had nothing to do with INJUNCTIONS, wherethe Parliament specifically had inserted in Section 383 of the CommonwealthElectoral Act 1918 the title; Federal Court of Australia, as being the appropriateCourt.

76.In the meantime, the Director of Public Prosecutions commenced a criminal trialagainst the Applicant, for not voting in the (purported) 2001 Federal election. TheApplicant opposed this in that a person cannot be compelled to vote in anunconstitutional/defective election. Also, that if there are no State citizens, then thereare no electors. The Applicant filing a Section 78B of the Judiciary ActNOTICEOF CONSTITUTIONAL MATTERS on 4 December 2001 in the MagistratesCourt at Heidelberg, this notice since was updated with further matters. When thehearing was to commence before the Magistrates Court at Heidelberg on 4 December2001 the Director of Public Prosecutions, through its lawyer Judith McGillivray BA,LLB, made known that upon consideration of the appeal M114 of 2001 filed in theHigh Court of Australia, there were MERITS in the Appeal, and for this the

Magistrate ought to adjourn proceedings pending the decision of the High Court ofAustralia in regard of all matters. The Magistrate so ordered, by consent.

77.Challenge to validity of electoral matters.Hansard 13-9-1897The Hon. N.J. BROWN (Tasmania)

A period, of course, is allowed for the elections to take place

before parliament is called together, and the object of this

amendment is to provide that, in the case of an irregularity

occurring, there may be an opportunity to cure that irregularity,

and to provide for another election before the parliament meets.And

Mr. WISE: I understand that the reason clause 50 was introduced wasbecause it was thought that where the rights of the electors were in any way

infringed, or came into question, the matter was one-for the courts.


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Clause 50 (then) is what is now Section 47It ought to be clear that the wording;

there may be an opportunity to cure that irregularity, and to

provide for another election before the parliament meets.was to provide that one doesnt first go through an election, only then afterwards

perhaps have the very people sitting in judgment in the houses being challenged. Itmust be done, prior to the election having been held.Albeit, this was not possible prior to the first federal election in 1901, since then theexistence of the High Court of Australia provided for this legal avenue.No elector or person aggrieved as to the manner in which some election process isconducted ought to be frustrated by legal impairments to prevent an unconstitutionalelection to proceed, where this is not an impairment created by law, but one wherethe fabrication of lack of legal jurisdiction is to prevent a matter to be heard upon itsMERITS, and so address the issue in dispute.

78.The Proclamation was actually published firstly in Canberra on 9 October 2001, andthere after over a period of 2 weeks in the various States and Territories.Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 (28 April1998) Dawson J pointed out in Hunter Resources Ltd v Melville when discussing thestatutory provision in that case:

"substantial compliance with the relevant statutory requirement was notpossible. Either there was compliance or there was not."

As such, either the writs were in compliance with Statue requirement, or it was not,and so void and of no effect, by this so any purported election held. The same withthe proclamation, if it was not properly published, prior to the time the event was totake place, then there was no valid Proclamation. Special Gazette S421 (containingthe Proclamation) was not even printedprior to the event the Proclamation referredto! As such, never could have been published in time to be valid!

79.This Affidavit is not and must not be held to contain all details, it is merely indicatingthat the Applicant has grounds to pursue matters, as the 16 February 2003 Affidavitremains the basis of the Applicants case, and so any material referred to.

80.The Applicant views that the conduct of Hayne J was totally unreasonable in thecircumstances, and without legal justification, in particular where the proceedingscould take over/include the outstanding Appeal M114 of 2001also, and consideringthe near war conditions, no undue delay ought to have been caused for the Court tohear matters upon its MERITS, where time is of the essence.

81.That the framers of the Commonwealth of Austral ia Constituti onalso made it veryclear (as recorded in Hansard) that Senators of Territories could represent theTerritories in the Senate, other then having any right to vote. The High Court ofAustralia past decision to rule otherwise, clearly was an error in law and depriveAustralian electors of a proper constituted Senate.


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82.That the Applicant is well aware that the High Court of Australia having madenumerous conflicting judgments versus that of the intentions of the framers of theCommonwealth Constitution Bill 1898may not be pleased that a, so called laymanin law, were to expose its incorrect judgments, however, this is not a case of pride,but one to ensure that the Commonwealth of Australia Constituti on is applied asintended by the framers, taking into consideration any valid referendum passed, andthe Applicant would see it as an act of treason if any judge were to deny matters to be

heard upon its MERITS, as it would be in defiance of what the framers intended.They did then (as shown in the Hansard) discuss the likelihood of Attorney Generalsnot wanting to take up a cause because of political reasons, and for this a person beentitled to litigate in his/her own right before the High Court of Australia. As such,unless matters are litigated upon their MERITS it would be to defy the intentions ofthe framers and a denial of the rights enshrined in the Constitution!

83.It is a very serious matter, that the Applicant since 1-11-2001 sought before the HighCourt of Australia to pursue elections to be conducted in a proper manner and as yet,the High Court of Australia failed to do so. In the meantime, Australians may beplunged into a war, what in time might be shown to be an unconstitutional

Government. Australias future being severely jeopardized because the High Court ofAustralia so far refused to deal with matters upon their MERITS, despite theguarantees provided by the framers for a person to have such right.

84.The Application denied to proceed by Hayne J on 19 March 2003 is an Application inits own rights and ought to be considered as such, irrespective if any otherApplication had been made previously with the same or simular orders sought as nojudicial decision was made setting out specifically the MERITSof each issue soughtto be litigated and if so justified.

85.As the WAR may already be in progress by the time the applicant file the applicationfor Leave to Proceed, the Applicant has forwarded a facsimile to the Deputy Registrarof the Melbourne Registry of the High Court of Australia, seeking that a judge is onstand-bye, to consider the Application, once the hardcopies are filed, as to ensure thatif any Orders are issued, then the Applicant can serve them upon the legalrepresentatives of the Commonwealth, the Australian Government Solicitors, as soonas a decision is made, as to have immediately all troops to be withdrawn.

86.That albeit the decision of Hayne J was made on 19 march 2003, the DeputyRegistrar, and only after the applicant requested for information, finally faxed thedecision on late 20-3-2003, as such valuable time was unduly wasted, and sopreventing the Applicant to file an application for leave to proceed at an earlier time,

before any actual involvement of Australian troops in any WAR against Iraq.

87.That the applicant refers to Exhibit GHSH-3being the Orders Nisi sought88.For the above stated I seek that this Court urgently provide the orders as sought by the

Applicant in the DRAFT ORDERS NISI, also as to also avoid a possible onslaught


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INSPECTOR RIKATI b h BLACK HOLE i h CONSTITUTION DVD

of civilians, and avoiding any possible backlash upon the Commonwealth, and thoseresiding wit

12-020030320-affidavit-08 affidavit m47 of 2003

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