who can assist-represent a party in legal proceedings?

8/14/2019 Who Can Assist-represent a Party in Legal Proceedings?

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Chapter 0002 Page 1INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD

A 1 st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, by fax 0011-

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

Chapter Who can assist-represent a party in legal proceedings?.* Gerrit, can you assist and/or represent a party in legal proceedings without being a lawyer?.**#** INSPECTOR-RIKATI, of course you can. While the High Court of Australia is on recordthat for what is called a McKenzie Friend it is up to the Court to permit this and how far suchassistance may be permitted the truth is that the Court has no such powers as to deny a litigantassistance as he may desire and I will explain this below in a limited terms.

.What is needed however is to set out also some other relevant matters as to underline why in thecase of Mr Francis James Colosimo a lawyer representing him not only would be undermining hiscase and be fatal to his case but that a non-legal practitioner a CONSTITUTIONALIST is betterequipped to actually present his case to pursue DUE PROCESS OF LAW..This is a matter where about 320 lawyers involved in a case against an unrepresented person whoall along OBJECTED TO THE JURISDICTION of VCAT (Victorian Civil and AdministrativeTribunal) but it was ongoing ignored and after more then 2 years of VEXATIOUS litigation MrFrancis James Colosimo then requested my assistance to present his case on 27 January 2009, as a

CONSTITUTIONALIST but despite being accepted to assist Mr Francis James Colosimo VCATmaintained its position that if could disregard any OBJECTION TO JURISDICTION andenforced this as late as 27 January 2010, a year later..

Bowers v Smith (1953) 1 ALL ER 320 (Re Clarke Hall) and (Morrison on Children, 7 Ed ,P3)QUOTE

"... the first business of the court is to try to issue whether or not the case is boughtwithin the terms of the statute, and only if this be proven by proper evidence can thecourt proceed to decide upon treatment "(See CROSS v. DE VALLE, 68 U.S. 5 (1863) and other cases in Folder 11 of the CD)

END QUOTE

.This Chapter is to set out in a limited manner what legal practitioners and others were doing versusmy presentations to pursue DUE PROCESS OF LAW. The battle of LEGAL PRACTITIONERSversus the CONSTITUTIONALIST! About the denial on 27 January 2010 by VCAT for Mr G. H.Schorel-Hlavka, even so registered as a interested person within the provisions of the act, to presentMr Francis James Colosimos case as desired because of the argument he is not a legal practitioner.This Chapter exposes the misuse and abuse by VCAT to maintain VEXATIOUS litigation againstan innocent man!.QUOTE CHRONOLOGY7 or 17-1-2007 DSM (Mr Donald S McCleod) issue 7 or 17-1-2007 CANCELATION OF

BUILDING ORDER TO STOP BUILDING WORK upon the Respondent FJC,within section 116 of the Building Act 1993. The section used is one relating to anowner requesting the cancellation of the order and this clearly was applied and assuch must be held to imply that all and any alleged offences despite no correctivework having been carried out whatsoever was not needed in the circumstance. TheNotice to cancel the order does not specify as such the precise matters upon whichthis decision was made and as such can only be deducted from the fact that theRespondent FJC from onset made known it was a SHED and not a SECONDDWELLING and he relied upon his rights of FEE SIMPLE, etc. No authorityexist to cancel the 6 December 2006 notice unless the owner complied with the


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END QUOTE.Basically Mr Francis James Colosimo had cleared his land way back in about 1973 to build ashed (And at the time cleared the land in a lawful manner) and finally in 2004 was able to obtaina previously registered shed and commenced to build it on his property and Moorabool ShireCouncil acknowledged this by way of notice dated both 7 and 17 January 2007 that it was incompliance with the Building Regulations and the Building Act, however a manager of Moorabool

Shire Council nevertheless decided to institute VEXATIOUS litigation against Mr Francis JamesColosimo on 22 January 2007 in VCAT even so the Infringement Act 2006only permits litigationin the Magistrates Court of Victoria, and despite objections to jurisdiction by Mr Francis JamesColosimo VCAT totally disregarded any proper form of litigation.It must also be noted that the various notices issued had major legal problems and so beingdefective..Again, while I do not doubt that in ordinary circumstances VCAT can hear and determine matters,subject to appropriately invoking JURISDICTION, in regard of the Planning and Environment

Act, the Building Act 1993 and other matters, it is a totally different kind of process when a council

relies upon the provisions of the Infringement Act 2006as to issue a Penalty Infringement Noticeas then it prevents VCAT to deal with matters as it is not a Court and as such unable to deal withmatters and so also because the Act requires matters to be dealt with by a court and not by somebody that might imagine to be a Court but as I view it cannot even manage to conduct proceedingsACCORDING TO LAW..AgainWithin the provisions of the Infringement Act 2006QUOTE 3. Definitions

"Court" means Magistrates' Court;QUOTE 3. Definitions

.Hence VCAT is not a Court but a mere Tribunal and neither is the Magistrates Court and ifanything its conduct underlined it cannot even provide an unrepresented Respondent with a FAIRand PROPER HEARING ordinary applicable in a COURT OF LAW..14-3-2007 Deputy President Helen Gibson hands down orders. It shows that For Francis

James Colosimo appearance was by Mr S Colosimo, in person while for theRespondent it shows No appearance, this even so Mr Francis JamesColosimo and the Respondent are one and the same person.

.It cannot even manage to have proper records!

.R v. Lusink and another; Ex Parte Shaw (1980) 6 FLR 235 and 236QUOTE

However in some cases the words or conduct of a judge may be such as to lead the partiesreasonably to think that the judge has prejudged an important question in the case, and thenprohibition may issue. Of course, the court which is asked to grant prohibition will not lightlyconclude that the judge may reasonably be suspected of bias in this sense; it must be "firmlyestablished" that such a suspicion may reasonably be engendered in the minds of the parties orthe public, as was made clear by the court in R v Commonwealth Conciliation and


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Arbitration Commission; Ex Parte Angliss Group (1969) 122 CLR 546 at 553-4, in thepassage cited in R v Watson;Ex Parte Armstrong (132 CLR at 262).The critical question, however, is not whether a judge believes he or she has prejudged aquestion, but whether that is what a party or the public might reasonably suspect has occurred(see per Lord Denning MR in Metropolitan Properties Co. (FGC Ltd v Lannon (1969) 1QB 577 at 599, a judgement cited with approval by this court in R v CommonwealthConciliation and Arbitration Commission; Ex Parte Angliss Group (1969) 122 CLR 546 at553; In some circumstances repeated denials of prejudging might well convey the impression

of "protesting to much"...END QUOTE.I have concern that it was reported that allegedly on 9 March 2007 VCAT Helen Gibson, DeputyChair reportedly stated;QUOTE

From the perspective of the tribunal, we are under the jurisdiction of the Planning &Environment Act, and we are bound to continue..

END QUOTE.

Here we have an unlettered person objecting to the jurisdiction of VCAT and all the member does isto refer to legislation that refers to VCAT rather then to make sure that by judicial determination itcan invoke jurisdiction, if it can at all..A brief set out of events leading up to the commencement of litigation;

The 28 September 2006 notice was wrongly dated 1 September 2006 and subsequentlywithdrawn on 25 October 2006 but in the process Moorabool Shire Council calculating the 30days permitted for Mr Francis James Colosimo calculated this from the wrong date 1September 2006 and on 9 October 2006 issued a Penalty Infringement Notice which on thecorrect date of 28 September 2006 would have been clearly incorrect.On 25 October 2006 Moorabool Shire Council then withdrew the incorrectly 1 September

2006 notice but failed to withdraw the incorrectly issued Infringement Notice, and thenreissued on 25 October a new notice. A further stop work Notice was issued but by noticedated 7 and 17 January 2006 Moorabool Shire Council then acknowledged that theoutbuilding (shed) was lawfully erected.It didnt cancel the incorrectly issued Infringement Notice and by the provisions of theInfringement Act 2006 it requires to do so before being able to institute legal proceedings.Maddocks Lawyers, despite being a legal firm dealing with matters for municipal and shirecouncils somehow were unaware of the legal requirements applicable and despite its chargesrelate to at least three lawyers having drafted the application of 22 January 2006 noneappeared to bother to check what the relevant legal procedures required were.

.

Indeed, the application was filed in breach of VCAT rules, omitting to serve attachments.There was a spade of ongoing errors but essentially this has become a battle where those in the legalprofession having held at least 14 VEXATIOUS hearings are now seemingly holding it an offencethat a non-lawyer, a CONSTITUTIONALIST is exposing their numerous errors that are of veryserious nature and has cause considerable harm upon Mr Francis James Colosimo...Mr Francis James Colosimo has from onset pursued that Moorabool Shire Council is not aconstitutional recognised level of government as the Framers of the Constitution stated:.MUNICIPAL COUNILS/LOCAL GOVERNMENT


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.While in todays language when we refer to LOCAL GOVERNMENT we refer to LOCALCOUNCILS rather then MUNICIPAL COUNCILS constitutionally (considering theCommonwealth of Australia Constitution Act 1900 (UK) we have a CENTRALISEDGOVERNMENT with a FEDERAL PARLIAMENT and a LOCAL GOVERNMENTwith a STATE PARLIAMENT.When one refers to the Federation and State Governments then LOCAL GOVERNMENT refersto State Governments. When we refer to internal State matters then LOCAL GOVERNMENT is

MUNICIPAL COUNCILS being LOCAL GOVERNMENTS..When dealing with the TWO levels of Governments, being Federal and State Governments, thenthe de facto third level of Government MUNICIPAL COUNCILS is not to be taken as a level ofGovernment..Hansard 5-3-1891 Constitution Convention Debates

QUOTEMr. PLAYFORD: And that it would be given back to the various local governments in

proportion to the population of their respective colonies. If we consider for a moment that the

federal government must have an executive, and will have to provide the necessary paymentfor the federal forces, for the federal executive, and for various other matters, we must see thatthey will have to derive a revenue in some way or other; and the most difficult question, Ithink, which the members of the Convention will find, when they come to deal with it, will bethe adjustment of that financial part of, if I may so call it, the trouble between the federalgovernment on the one hand, and the local governments on the other. It may be necessarythat, in certain instances, we should be paid back by the federal government a proportion ofthe money that we, as local governments, derive from customs.

END QUOTE.DEBATES OF THE CONFERENCES (OFFICIAL RECORD.)

MONDAY, FEBRUARY 10, 1890.QUOTE Mr. DEAKIN

Leaving these details, which I have only ventured to touch upon in a fragmentary way, andsympathizing with the strong stand made by Mr. Playford on the supposition that the powersand privileges of the different local Governments were to be assailed, and being as preparedas he is to do my utmost in their defence, I believe that we would act idly unless we admittedfrom the first that in the creation of a Federal Legislature and a Federal Executive we meantthem to be the organs of a Sovereign state-a state which would not be a figment or shadow,nor exist only on the sufferance of the local Parliaments, but which would draw its authoritystraight from the people of the different colonies, obtaining from them the plenary powers tobe exercised by it within certain limits. The great lesson taught by Mr. Bryce in his

magnificent work is that the strength of the United States Government lies in this, thatalthough it is a Federal Government, under which each State of the Union is theoretically andactually independent in respect to all concerns of local life and legislation, it hasnevertheless sovereign authority in that it is gifted with powers which act directly andimmediately on every citizen of the entire country. It is not dependent on any state for onecent of its revenue, nor upon state officers for any act of administration , nor upon StateCourts for any decision in its favour. Except that the state legislators elect the members ofthe Senate there is no connexion between the states and their Central Government. TheUnion is not concerned to have their support, nor does it seek their aid for the forces itmaintains. It is a Sovereign state acting directly, without any intermediary, upon the


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citizens from which it springs. (Hear, hear.) I am glad that view is concurred with. I am gladto think that we shall see a Sovereign state in Australasia which will be able to act directlythrough its judiciary, and in other ways, on every citizen within its borders, and be in everyrespect and in all its powers the equal of any state in the world. Were we to aim at crippling,maiming, or enfeebling the local Legislatures, we would aim at doing something not onlywholly unnecessary for our purpose, but something which would actually injure the FederalGovernment we are seeking to establish. There should be and must be nothing antagonisticbetween a Federal Government supreme in its sphere and local Governments supreme in

their spheres. It is perfectly true that there must be a division of authority, that some of thepowers of the local Governments will have to be transferred to the Federal Government, butthe judges of the powers to be given to either body must not be either the local Governmentswith their jealousies, or the Central Government with its ambitions. The judgment mustcome from those whom both exist only to serve-from the people themselves. So far both thelocal and central authorities must be regarded as on the same platform, because as it is

in the national interest that there should be a differentiation of the powers of

Government into central and local Governments so in settling that division only nationalinterests ought to be considered. What we have to study is how to give the central authorityall the powers which can be best exercised by such a body to the distinct advantage of the

whole of the people. Those powers it ought to have; but it is not to be [start page 27] entitledto acquire them in such a way as would enfeeble the different local Governments, on whosehealthy life its successful existence must largely depend. As well might it be attempted toenfeeble municipal institutions in order to aggrandize Parliament, the fact being thatparliamentary Government depends very much for its smooth and easy working upon thesmooth and easy working of the minor local bodies. There are an infinite number of issueswhich no central Parliament could deal with, but which necessarily belong to the localLegislatures, and which they should be able to deal with in the present manner. For my part, Ithink we should seek to strengthen the local Legislatures by every possible means. We should,as Mr. Playford says, leave them every power it is possible for them to exercise in the interestsof the whole community. If more power can be given them for that purpose than is conceded

elsewhere, let it be granted, but let us give the Central Government just as emphatically afull and unfettered power so far as the interests of the whole people demand it.

END QUOTE.State government is Local governmentCommonwealth government is Central government.Municipal and shire councils therefore are not local government and cannot purport to be so andneither have government powers and as such neither can charge for government related functions.Neither can any government (State Parliament) create a level of government without first obtainingthe approval of State electors of the State that desires to create another level of Government. N.S.W.

failed to do so in its 1902 amendment creating purportedly local government and hence it remainsULTRA VIRES..HANSARD 10-03-1891 Constitution Convention Debates

QUOTEDr. COCKBURN: All our experience hitherto has been under the condition of

parliamentary sovereignty. Parliament has been the supreme body. But when we

embark on federation we throw parliamentary sovereignty overboard. Parliament is nolonger 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


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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 parliamentbeing supreme, the parliaments of a federation are coordinate bodies-the main power is

split up, instead of being vested in one body. More than all that, there is this difference:

When parliamentary sovereignty is dispensed with, instead of there being a high court of

parliament, you bring into existence a powerful judiciary which towers above all powers,

legislative and executive, and which is the sole arbiter and interpreter of the constitution.QUOTE.

With the failed 1988 referendum to recognize Municipal and Shire Councils as a level ofgovernment it should be clear that albeit municipal and shire councils have a place in society theyare not a level of Government and as such cannot charge and collect rates relating to a purportedlevel of government and neither can infringe upon the rights of landowners ofFEE SIMPLE.It would go beyond the principle issue of who can assist-represent Mr Francis James Colosimo orfor that matter any other Respondent/Defendant in court but safe to say that the 8 March 2009ADDRESS TO THE COURT/TRIBUNAL Part 1 and the 9 March 2009 ADDRESS TO THECOURT/TRIBUNAL Part 2 extensively canvassed this issue before Her Honour Harbsion J on 16

March 2009 and it was not challenged by the other parties/persons involved. And this material alsosets out the error the High Court of Australia made in regard of dealing with FEE SIMPLE issuesrelating to Queensland, etc..What is essential to understand from this Chapter is that legal practitioners may have takencharge of the Parliaments to pursue to make courts/tribunals an exclusive working environment(close shops) but constitutionally this is not enforceable and ultimately Mr Francis James Colosimois entitled to be assisted in litigation by the person most competent in his view to assist him.As a self educated CONSTITUTIONALIST I may not have the formal education of a lawyer buton the other hand because of this I am able to understand and comprehend the real intentions of theFramers of the Constitution and not seek to twist and infringe upon the true meaning and

application of the constitution.As clear example is that on 30 September 2003 I published:.

INSPECTOR-RIKATI on CITIZENSHIPA book on CD about Australians unduly harmed.

(ISBN 0-9580569-6-X prior to 1-1-2007) ISBN 978-0-9580569-6-0.In it I exposed that the Commonwealth of Australia specifically was denied by the Framers of theConstitution any legislative powers as to define/declare citizenship..QUOTE 7-1-2010 CORRESPONDENCE

Australian GovernmentDepartment of the Prime Minister and Cabinet

ONE NATIONAL CIRCUITBARTON

Reference: c09/54418

Mr Gerrit Schorel-Hlavka107 Graham RoadVIEWBANK VICTORIA 3084


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Dear Mr Schorel-Hlavka

Thank you for your email of 24 October 2009 to the Prime Minister regarding theCommonwealths power to legislate over citizenship. I have been asked to reply on the PrimeMinisters behalf. I apologise for the delay in doing so.

Australian citizenship is defined in the Australian Citizenship Act 2007. Ordinarily, the

Government does not disclose its legal advice, including on constitutional issues, I refer you,however, to the following passage from paragraph 4,179 of the Final Report of theConstitutional Commission, 1988:

While the Federal Parliament has not been granted an express power to make laws withrespect to nationality and citizenship, it has been assumed that the Parliament does have

such a power. The power is either implied in section 51(xix) [of the Constitution] or is

one of the implied national powers. Its exercise by the Federal Parliament, by

enactment of the Australian Citizenship Act 1948 has certainly not been called into

question in any case before the High Court of Australia.

Yours sincerely

Brendan MacDowellA/g Assistant SecretaryLegal Policy Branch7 January 2010

QUOTE 7-1-2010 CORRESPONDENCE

.There is clearly no such thing as assumed legislative powers as the Framers of the Constitutionmade it very clear;.

Hansard 8-2-1898 Constitution Convention DebatesQUOTE Mr. BARTON.-

Under a Constitution like this, the withholding of a power from the

Commonwealth is a prohibition against the exercise of such a power.END QUOTE.Hansard 2-3-1898 Constitution Convention Debates

QUOTE Mr. SYMON.-

I am not going to put that in the power of any one, and if it is put in the power of the FederalParliament, then I should feel that it was a very serious blot on the Constitution, and a very

strong reason why it should not be accepted. It is not a lawyers' question ; it is a question ofwhether any one of British blood who is entitled to become a citizen of the

Commonwealth is to run the risk-it may be a small risk-of having that taken away ordiminished by the Federal Parliament! When we declare-"Trust the Parliament," I amwilling to do it in everything which concerns the working out of this Constitution, but I amnot prepared to trust the Federal Parliament or anybody to take away that which is a leadinginducement for joining the Union.

END QUOTEAndHansard 2-3-1898 Constitution Convention Debates


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QUOTE

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 citizenship of 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 the clause. Ithen-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, and in definingthe qualifications of that federal citizenship, we were not in any way interfering with our

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

Constitution to do that. We might be citizens of a city, citizens of a colony, or citizens of

a Commonwealth, but we would still be, subjects of the Queen. I see therefore nothingunconstitutional, nothing contrary to our instincts as British subjects, in proposing to placepower in this Constitution to enable the Federal Parliament to deal with the question of federalcitizenship. An objection has been raised in various quarters-as by the honorable and learnedmembers (Mr. O'Connor and Mr. Wise)-to the effect that we ought to define federalcitizenship in the Constitution itself.

END QUOTE

AndHansard 2-3-1898 Constitution Convention Debates

QUOTE

Mr. SYMON.-Very likely not. What I want to know is, if there is anybody who will comeunder the operation of the law, so as to be a citizen of the Commonwealth, who would notalso be entitled to be a citizen of the state? There ought to be no opportunity for suchdiscrimination as would allow a section of a state to remain outside the pale of theCommonwealth, except with regard to legislation as to aliens. Dual citizenship exists, butit is not dual citizenship of persons, it is dual citizenship in each person. There may be two

men-Jones and Smith-in one state, both of whom are citizens of the state, but one only is

a citizen of the Commonwealth. That would not be the dual citizenship meant. What ismeant is a dual citizenship in Mr. Trenwith and myself. That is to say, I am a citizen of

the state and I am also a citizen of the Commonwealth; that is the dual citizenship. Thatdoes not affect the operation of this clause at all. But if we introduce this clause, it is open tothe whole of the powerful criticism of Mr. O'Connor and those who say that it is putting onthe face of the Constitution an unnecessary provision, and one which we do not expect will beexercised adversely or improperly, and, therefore, it is much better to be left out. Let us, indealing with this question, be as careful as we possibly, can that we do not qualify thecitizenship of this Commonwealth in any way or exclude anybody [start page 1764] from it,and let us do that with precision and clearness. As a citizen of a state I claim the right to bea citizen of the Commonwealth. I do not want to place in the hands of the

Commonwealth Parliament, however much I may be prepared to trust it, the right ofdepriving me of citizenship. I put this only as an argument, because no one would anticipatesuch a thing, but the Commonwealth Parliament might say that nobody possessed of less than1,000 a year should be a citizen of the Federation. You are putting that power in the hands ofParliament.

Mr. HIGGINS.-Why not?

Mr. SYMON.-I would not put such a power in the hands of any Parliament. We must restthis Constitution on a foundation that we understand, and we mean that every citizen of

a state shall be a citizen of the Commonwealth, and that the Commonwealth shall have


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no right to withdraw, qualify, or restrict those rights of citizenship, except with regardto one particular set of people who are subject to disabilities, as aliens, and so on. Subjectto that limitation, we ought not, under this Constitution, to hand over our birth right ascitizens to anybody, Federal Parliament or any one else, and I hope the amendment will notbe accepted.

END QUOTEAnd

Hansard 2-3-1898 Constitution Convention DebatesQUOTE Mr. BARTON

He will be giving to the Commonwealth Parliament a power, not only of dealing with the

rights of citizenship, but of defining those rights even within the very narrowest limits, so

that the citizenship of a state might be worth nothing; or of extending them in one

direction, and narrowing them in another, so that a subject living in one of the stateswould scarcely know whether he was on his head or his heels. Under the Constitution wegive subjects political rights to enable the Parliament to legislate with regard to the suffrage,and pending that legislation we give the qualification of electors. It is that qualification ofelectors which is really the sum and substance of political liberty, and we have defined that. Ifwe are going to give the Federal Parliament power to legislate as it pleases with regard toCommonwealth citizenship, not having defined it, we may be enabling the Parliament topass legislation that would really defeat all the principles inserted elsewhere in the

Constitution, and, in fact, to play ducks and drakes with it. That is not what is meant by

the term "Trust the Federal Parliament."

Mr. HIGGINS.-You give the Federal Parliament power to naturalize.

Mr. BARTON.-Yes; and in doing that we give them power to make persons subjects of theBritish Empire. Have we not done enough? We allow them to naturalize aliens. That is apower which, with the consent of the Imperial authority, has been carried into legislation

by the various colonies, and, of course, we cannot do less for the Commonwealth than we

have done for the colonies.

Mr. KINGSTON.-Such legislation is only good within the limits of each state.

Mr. BARTON.-Yes; and here we have a totally different position, because the actualright which a person has as a British subject-the right of personal liberty and protection

under the laws-is secured by being a citizen of the states. It must be recollected that the

ordinary rights of liberty and protection by the laws are not among the subjects confidedto the Commonwealth. The administration of [start page 1766] the laws regarding

property and personal liberty is still left with the states.

END QUOTEAnd

Hansard 2-3-1898 Constitution Convention DebatesQUOTE

Mr. SYMON.-I would not put such a power in the hands of any Parliament. We must restthis Constitution on a foundation that we understand, and we mean that every citizen of

a state shall be a citizen of the Commonwealth, and that the Commonwealth shall have

no right to withdraw, qualify, or restrict those rights of citizenship, except with regardto one particular set of people who are subject to disabilities, as aliens, and so on. Subjectto that limitation, we ought not, under this Constitution, to hand over our birth right ascitizens to anybody, Federal Parliament or any one else, and I hope the amendment will notbe accepted.


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END QUOTE.The amendment of Dr Quick to give legislative powers to the Commonwealth of Australiaregarding citizenship was defeated!.AgainQUOTE Mr. BARTON.-

We allow them to naturalize aliens. That is a power which, with the consent of theImperial authority, has been carried into legislation by the various colonies, and, of

course, we cannot do less for the Commonwealth than we have done for the colonies.

END QUOTE.Therefore naturalization is embedded in the constitution to be on behalf of the imperial governmentand not even the Imperial government (so the British parliament) could remove this right as it ispart of the constitution, and the constitution can only be amended by way of a s.128 referendum.And as the Westminster Act refers to dominions and the Commonwealth of Australia never was adominion then this legislation couldnt achieve what cannot be achieved in a direct manner. The

Westminster Act seeks to amend the application of the constitution with a s.128 referendum and thisclearly is not possible. Hence the purported Australia Act 1986 (Cth a& UK) is ULTRA VIRES..Commonwealth v Brisbane Milling Co. Ltd. (1916) 21 C.L.R. 559; A.L.R. 272.QUOTE Barton J,

he parliament cannot give the word a meaning

not warranted by s73 of the Constitution.END QUOTE.

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

Providing, as this Constitution does, for a free people to elect a free Parliament-givingthat 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 BritishConstitution 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 yourConstitution with legislative provisions to protect the citizen from interference. Underthis 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 beaccused 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


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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 whichshould 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 notprovided, first, that our Constitution shall be free: next, that its government shall be by thewill of the people, which is the just result of their freedom: thirdly , that the Constitutionshall 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 perversionof its provisions? We can have every faith in the constitution of that tribunal. It is appointed asthe arbiter of the Constitution. It is appointed not to be above the Constitution, for nocitizen is above it, but under it; but it is appointed for the purpose of saying that those

who are the instruments of the Constitution-the Government and the Parliament of theday-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 bethe 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 thisConvention has done well.

END QUOTE.The judges of the High Court of Australia were born as Subjects of the British Crown and weresworn in as to their judicial offices of their allegiance to the British Crown. None of them changedtheir nationality and as such remained to be so at the time of the Sue v Hill judgment and couldnt

by this hand down any decision that was in direct conflict with their oath of office as theconstitution doesnt permit alliance to another Monarch..

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

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 andcitizenship, 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 abadge 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.

END QUOTE


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AndQUOTE

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 Britain would(ex gratia) protect a Russian naturalized by service, in her fleet, it is obvious that she cannotdo so without recognizing his right of expatriation to be superior to the Empress's right ofallegiance. But it is not only in a negative way, that these deviations in support of the generalright appear. The doctrine is, that allegiance cannot be due to two sovereigns; and takingan oath of allegiance to a new, is the strongest evidence of withdrawing allegiance from a

previous, sovereign.

END QUOTE.Hence, it cannot be that the High Court of Australia was handing down judgments since 1986 underthe British Crown and then somehow suddenly in 1996 claims to have been operating all along as judges under the purported Queen of Australia and declare Heather Hill to be ineligible to be aSenator in the Senate because then by this the judges themselves were ineligible to be a judge of theHigh Court of Australia as they never sworn any new allegiance themselves, being natural born inthe realm of the British Crown.

.By this, every lawyer who was born in the realm of the British Crown and was admitted to the barsuddenly all no longer were legally able to practice law, that includes the judges also.What we have therefore is that lawyers who have sworn now an allegiance to the Queen ofAustralia may also be not legally qualified because:.Hansard 2-3-1898 Constitution Convention Debates

QUOTE Mr. SYMON ( South Australia ).-In the preamble honorable members will find that what we desire to do is to unite in oneindissoluble Federal Commonwealth -that is the political Union-"under the Crown of theUnited Kingdom of Great Britain and Ireland , and under the Constitution hereby

established." Honorable members will therefore see that the application of the wordCommonwealth is to the political Union which is sought to be established. It is not intendedthere to have any relation whatever to the name of the country or nation which we are going tocreate under that Union . The second part of the preamble goes on to say that it is expedient tomake provision for the admission of other colonies into the Commonwealth. That is, foradmission into this political Union, which is not a republic, which is not to be called a

dominion, kingdom, or empire, but is to be a Union by the name of "Commonwealth,"

and I do not propose to interfere with that in the slightest degree.END QUOTE.The High Court of Australia cannot turn the Commonwealth of Australia being a POLITICAL

UNION into some ASSUMED independent country as that is beyond the judicial powers of theHigh Court of Australia. Therefore the Sue v Hill judgment is ULTRA VIRES and NULL ANDVOID, and as such without legal force!.Hansard 1-2-1898 Constitution Convention Debates (Official Record of the Debates of theNational Australasian Convention),QUOTE Mr. OCONNER (New South Wales).-

Because, as has been said before, it is [start page 357] necessary not only that theadministration of justice should be pure and above suspicion, but that it should be

beyond the possibility of suspicion;


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15/67





QUOTE 070520 postingI am very disturbed to find the following of a quotation to have found this discussion;.HANSARD 27-1-1898 Constitution Convention Debates

QUOTEMr. BARTON.-We do not propose to hand over contracts and civil rights to theFederation, and they are intimately allied to this question.

END QUOTE.index.php?act=findpost&pid=617635index.php?act=findpost&pid=617635QUOTE High Court of Australia

McHUGH J: I understand that and persons who have not had full legal training often think ofMagna Carta and the Bill of Rights as fundamental documents which control governments,but they do not.

END QUOTEandQUOTE

But Parliament - some people would regard it as regrettable - can, in effect, do what it

likes. As it is said, some authorities could legislate to have every blue-eyed baby killed ifit wanted to.

END QUOTE.HANSARD 1-3-1898 Constitution Convention Debates (Official Record of the Debates of theNational Australasian Convention)QUOTE

Mr. GLYNN.-I am now speaking of the English law. It has been somewhat modified in theStraits Settlements, and in one or two other parts of the empire, I believe, by giving a right ofaction for tort in certain cases, but I do not think that this extended right of action has everbeen given in any of the colonies. Conditions justifying actions for damages against the

Crown, however, are almost as frequent as actions for breach of contract. In Canada a mansued the Crown for damages received in connexion with a railway accident, but he wasdebarred of remedy there, although he suffered serious injury, because of some defect in therailway laws not conceding this right. The position has been laid down in regard to the Queenin the case I have already mentioned, that-

Where the land, or goods, or money, of a subject have found their way into the possession ofthe Crown, and the purpose of the petition is to obtain restitution, or if restitution cannot beobtained, compensation in money; or when a claim arises out of a contract, as for goodssupplied to the Crown or to the public service-the Crown is bound to refer a petition ofright to the courts for decision, because it is provided by Magna Charta that justice

cannot be denied, sold, or delayed. By this action, similar rights of action are given to thesubject against the Crown in cases in which the subject can maintain a claim against anothersubject.

END QUOTE.HANSARD 17-3-1898 Constitution Convention Debates

QUOTE Mr. DEAKIN.-

. In this Constitution, although much is written much remains unwritten,END QUOTE


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AndQUOTE Mr. DEAKIN.-

What a charter of liberty is embraced within this Bill-of political liberty and religiousliberty-the liberty and the means to achieve all to which men in these days can

reasonably aspire. A charter of liberty is enshrined in this Constitution, which is also acharter of peace-ofpeace, order, and good government for the whole of the peoples

whom it will embrace and unite.

Mr. SYMON (South Australia).-I wish to say one word or two before we part. I do notintend to enter into any detailed examination of, or any elaborate apology for, the Constitutionwhich we have been engaged in framing. But, sir, no man can remain unmoved upon this momentous occasion.

We who are assembled in this Convention are about to commit to the people of Australia a new charter ofunion and liberty; we are about to commit this new Magna Charta for their acceptance and confirmation,

and I can conceive of nothing of greater magnitude in the whole history of the peoples of the world thanthis question upon which we are about to invite the peoples of Australia to vote. The Great Charter was

wrung by the barons of England from a reluctant king. This new charter is to be given by the people ofAustralia to themselves.

END QUOTEAgain;QUOTE

the Crown is bound to refer a petition of right to the courts for decision, because it isprovided by Magna Charta that justice cannot be denied, sold, or delayed.

QUOTE.Therefore it must be clear that the Framers of the Constitution held that the Magna Charta appliedto the Constitution and it is not for the judges to then seek to amend the Constitution by their ownjudgment to deny this to be applicable.As much as the Magna Charta is applicable likewise so the Bill of Rights.There is however another disturbing element to what the judges stated;.Essenberg v The Queen B55/1999 (22 June 2000)

IN THE HIGH COURT OF AUSTRALIAQUOTE

GUMMOW J: Now these words, "for peace, order and good government" are words ofexpansion, not contraction, you see - they are not words of limitation.McHUGH J: They do not limit the powers. In fact they arguably have no legal effectwhatever, and that is the doctrine of this Court. We do not make a decision as to whether thelaw is for the peace, for the order, for the good government. It is assumed that ifParliament makes it, it is, and the real question is, is it a law with the same respect to tradeand commerce in other countries or whatever the relevant law of Parliament relies on, butthis Court has never attempted to say that a law, on the subject of trade and commerce, for

example, is not "for peace, order and good government". It is, in effect, a parliamentaryexpression rather than a legal expression. It does not limit Parliament's power; it is said toexpand them.MR ESSENBERG: I am not really sure I understand that.

END QUOTE.Now lets see what the Framers of the Constitution stated, as set out more extensive in the documentfor the peace order and good government-1-Hansard.doc in Chapter 034O.HANSARD 1-4-1891 Constitution Convention Debates

QUOTE


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Sir SAMUEL GRIFFITH: I agree that these words appear rather startling. [start page 559]They are taken from the Federal Council Act of Australasia, and were inserted by theimperial authorities after consideration and in substitution for more limited words that wereproposed by the Convention that met here in 1883. Finding those words there, andconsidering that the powers of the federal parliament are only to make laws for the peace,order, and good government of the commonwealth, it was thought perfectly safe to adoptthem.

Mr. BAKER: Do I understand that if a ship leaves one of the Australian colonies for aBritish port, say London, having a British register, until she actually arrives in Great

Britain, the laws of the commonwealth are binding upon her, and not the laws of Great

Britain?

Sir SAMUEL GRIFFITH: No; but laws of the commonwealth, limited to laws for the

peace, order, and good government of the commonwealth, will apply to her on hervoyage. For instance, if it was necessary to send a prisoner to England, only such

provisions as are essential for the laws of the commonwealth outside the 3-mile limit

could possibly apply.

END QUOTEAndQUOTE

Sir SAMUEL GRIFFITH: If the hon. gentleman will look at the bill he will see that theonly laws which can apply are laws for the peace, order, and good government of the

commonwealth.END QUOTE.HANSARD 14-4-1897 Constitution Convention Debates (Official Record of the Debates of theNational Australasian Convention)QUOTE Mr. BARTON:

That was the Convention which had, I think, to be called in consequence of the New Guineaaffair. Sir Samuel went on:

Finding those words there, and considering that the powers of the Federal Parliamentare only to make laws for the peace, order, and good government of the Commonwealth,it was thought perfectly safe to adopt them.

Sir Samuel Griffith's reply to that interjection was;

No; but laws of the Commonwealth, limited to laws for the peace, order, and goodgovernment of the Commonwealth, will apply to her on her voyage. For instance, if it wasnecessary to send a prisoner to England, only such provisions as are essential for the laws of

the Commonwealth outside the three-mile limit could possibly apply.That is to say, that the laws of the Commonwealth in respect of the matter cannot possibly

affect any law of the Imperial Parliament with which they may be in conflict, but so far asthey are not i n conflict they will be applicable to a ship on her voyage for the preservation ofthose laws of the Commonwealth which it is necessary to have enforced.

END QUOTE.HANSARD 22-9-1897 Constitution Convention Debates (Official Record of the Debates of theNational Australasian Convention)QUOTE


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Amendment suggested by the House of Assembly of Tasmania:

Omit the words "for the peace, order, and good government of the commonwealth, lines3, 4, and 5."

The Hon. E. BARTON (New South Wales)[10.32]: This is an amendment which was madein the legislature of Tasmania at the instance of the Hon. A.I. Clark. That gentleman hasfurnished these reasons for the amendment, and, perhaps, in justice to him, I ought to read

them:

These words are copied from the several acts of the Imperial Parliament providing for theestablishment of legislatures in the various Australian colonies, and are perfectly appropriatewhen used in reference to the establishment of the legislature which is to possess plenarylegislative powers, and have unlimited jurisdiction on all questions relating to the protectionof life and property, and the enforcement of contractual rights of every kind; but it is verydoubtful if they ought to find a place in connection with the definition and delegation oflimited legislative powers which do not include matters relating to the daily protection of lifeand property, or to enforcement of private rights and obligations in general. It is true that theyfind a place in the 91st section of the British North America Act, which establishes a federal

convention for Canada; but the primary object of that act is to limit the powers andjurisdiction of the provincial legislatures, and to vest the residuum of legislative authority inthe Dominion of Canada in the federal parliament. The words in question may, therefore, fitlyfind a place in that act, and they were relied upon in the case of "The Attorney-General ofCanada versus the Attorney-General of Ontario, which was decided by the Privy Council lastyear[L.R.A.C. 1896] to uphold the act of the Dominion Parliament, which had beenchallenged on the ground that it had encroached upon the domain of the provinciallegislatures. That decision, in its effect, appears to me to be, an argument against the insertionof the words in question in connection with the definition and delegation of the legislativepowers of the parliament of the commonwealth, because they might, in some unforeseen andunexpected controversy, afford ground for an argument in favour of the jurisdiction of the

parliament of the commonwealth in matters which the several states might claim to be whollywithin their own legislative powers. It cannot be contended that they are required for thepurpose of giving the parliament of the commonwealth full power to legislate with regard toall the subjects mentioned in the sub-sections of section 52; and, if they are not required forthat purpose, they must inevitably encourage the contention that they are inserted [start page1037] for some additional purpose. But, if their insertion in not intended to add in any way tothe powers of parliament, in relation to the matters mentioned in the sub-sections of section52, then they violate the canon of drafting, which requires that no unnecessary words shouldbe used in giving expression to the intention of the legislature. They are very properly insertedin section 53, because that section confers upon the parliament of the commonwealth plenaryand exclusive powers in regard to the several matters mentioned in the sub-section of that

section. But their presence in section 52 tends to create a resemblance in the scope of thepowers conferred by the two sections, whereas it would be much more desirable to make thedifference in the purport of each section as apparent and emphatic as possible.

I have read these reasons through very carefully, and I have been unable to discoverthat any of the evils which my hon. and learned friend, Mr. Clark, fears may be

expected from leaving these words as they are. The powers are powers of legislation for

the peace, order, and good government of the commonwealth in respect of the matters

specified. No construction in the world could confer any powers beyond the ambit of

those specified.


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The Hon. N.E. LEWIS (Tasmania)[10.35]: I should like to submit for the consideration ofthe leader of the Convention the question whether the words which the legislature ofTasmania have proposed to omit might not raise the question whether legislation of thefederal parliament was in every instance for the peace, order, and good government of thecommonwealth. Take, for instance, navigation laws. Might it not be contended that certainnavigation laws were not for the peace, order, and good government of thecommonwealth, and might there not be litigation upon the point? We are giving very fullpowers to the parliament of the commonwealth, and might we not very well leave it to themto decide whether their legislation was for the peace, order, and good government of thecommonwealth? Surely that is sufficient, without our saying definitely that theirlegislation should be for the peace, order, and good government of the commonwealth. Ihope the leader of the Convention will give the matter full consideration with a view to seeingwhether these words are not surplusage, and whether, therefore, they had better not be left outof the bill altogether.

The Hon. E. BARTON: The suggestion of the hon. member will be considered by theDrafting Committee.

Amendment negatived.

END QUOTEAgain;QUOTE

Surely that is sufficient, without our saying definitely that their legislation should be for

the peace, order, and good governmentEND QUOTE.HANSARD 13x-1898 Constitution Convention Debates (Official Record of the Debates of theNational Australasian Convention)QUOTE

Mr. ISAACS.-The Parliament has by clause 52 full power and authority to make laws

for the peace, order, and good government of the Commonwealth with respect to a largenumber of matters that are set out. This is a power that is without limitation.

END QUOTE.It should be understood that while it was statedQUOTE

This is a power that is without limitation.

END QUOTEIt is within the limits of being for for the peace, order, and good government!As such as long as it is within the scope of for the peace, order, and good government thelegislative powers is unlimited.

.HANSARD 17-3-1898 Constitution Convention DebatesQUOTE Mr. DEAKIN.-

. In this Constitution, although much is written much remains unwritten,END QUOTEAndHANSARD 17-3-1898 Constitution Convention DebatesQUOTE Mr. DEAKIN.-

What a charter of liberty is embraced within this Bill-of political liberty and religiousliberty-the liberty and the means to achieve all to which men in these days can


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reasonably aspire. A charter of liberty is enshrined in this Constitution, which is also acharter of peace-ofpeace, order, and good government for the whole of the peoples

whom it will embrace and unite.

Mr. SYMON (South Australia).-I wish to say one word or two before we part. I do notintend to enter into any detailed examination of, or any elaborate apology for, the Constitutionwhich we have been engaged in framing. But, sir, no man can remain unmoved upon thismomentous occasion. We who are assembled in this Convention are about to commit to

the people of Australia a new charter of union and liberty; we are about to commit thisnew Magna Charta for their acceptance and confirmation, and I can conceive of nothing

of greater magnitude in the whole history of the peoples of the world than this question

upon which we are about to invite the peoples of Australia to vote. The Great Charter

was wrung by the barons of England from a reluctant king. This new charter is to be

given by the people of Australia to themselves.

END QUOTE.When then we look at the constitutional provisions of external affairs then this to is clearlylimited within for the order, peace and good government as well as limited by the powers

otherwise provided for within Section 51, and limited by any treaties or laws of the Britishparliament as the latter is superior law for so far it does not clash with constitutional provisions.Any ordinary British Act not being a constitutional legislation cannot then override Constitutionalprovisions. Likewise the Australian Act 1986 (UK) not being a constitution Act therefore cannot bedeemed to have interfered with the Commonwealth of Australia Constitution Act 1900 (UK) andtherefore this Australia Act 1986 (UK) is a nullity where it purports to substitute the realConstitution. For a more comprehensive set out the following have been quoted from then Hansardrecords of the Constitution Convention Debates..Hansard 24-3-1897 Constitution Convention DebatesQUOTE Sir GEORGE TURNER:

We must see that the new body has absolute control over the Customs and Excise duties andbounties. There are other matters which I need not go into. There is defence and quarantine,and similar matters, which will be placed under the Federal Government, and, in fact, we maysay all matters relating to the external affairs, internal commerce, defence, and generalgovernment can safely be placed in the hands of the new body, and the States can retain allthe other powers which they now possess.

END QUOTE.It is therefore clear that external affairs cannot make any inroads into State legislative powersbecause it was related to already existing powers in the constitution and not some tool to addlegislative powers as a way to increase its legislative powers to circumvent the need of a s.128

referendum..Hansard 16-9-1897 Constitution Convention Debates (Official Record of the Debates of theNational Australasian Convention) (Chapter 33 of the CD)QUOTE The Right Hon. G.H. REID:

Our difficulty therefore is: Are we to so arrange the constitution that in matters which

are national, which are peculiarly national, the national voice shall prevail, and that in

matters which involve state rights, which are different from the issues which I have

described, the state voice shall not be drowned even by the national voice? Now that isthe problem we have to deal with.


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The Right Hon. G.H. REID: That is the point. Under this constitution, with the leading

principle in it that it is not to go beyond what is in it, no principle or subject which is notexpressed within its pages can be dealt with by the federal parliament. Looking that in theface, I say it is possible to distinguish between the questions in which the voice of the nationmust be supreme, and questions in which the voice of the states must be represented.

END QUOTEAgain;

The Right Hon. G.H. REID: That is the point. Under this constitution, with the leading

principle in it that it is not to go beyond what is in it, no principle or subject which is not

expressed within its pages can be dealt with by the federal parliament.END QUOTE

Hansard 21-1-1898 Constitution Convention Debates

QUOTE

Sub-section (29).-External affairs and treaties.

Amendment suggested by the Legislative Council of New South Wales-

Omit "and treaties."

Mr. BARTON.-I propose to strike out the words "and treaties," in accordance with thesuggestion of the Legislative Council of New South Wales.

Mr. GLYNN.-I see an objection to striking out these words in reference to treaties. I amaware that similar words have been struck out in clause 7, but I doubt the policy of that. It maybe wise to retain them.

The CHAIRMAN.-We must be consistent.

Mr. GLYNN.-I bow to your ruling, sir, but an opportunity for reconsidering the mattershould be provided.

The amendment was agreed to.

Sub-section 30.-The relations of the Commonwealth to the islands of the Pacific.

Mr. BARTON.-It has been suggested that this sub-section is embraced in the precedingone-"External affairs and treaties." That is arguable; it is quite possible that it may be true;but there are a very large number of people who look forward with interest to theCommonwealth undertaking, as far as it can as part of the British Empire, the regulation ofthe Pacific Islands. It may be, I think, as there is a doubt as to whether the one thing is

included in the other, and as there are a large number of people who are interested in thisquestion, that it is better in deference to their views to leave the words as they are. As thesubsection may do some good, and can do no harm, I think that the objection should not bepressed.

END QUOTE.AgainQUOTE Mr. BARTON.-

as far as it can as part of the British EmpireEND QUOTE


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.Hansard 5-3-1891 Constitution Convention Debates (Official Record of the Debates of the National AustralasianConvention) (Chapter 33 of the CD)

QUOTE Mr. MUNRO:And that is the difference between what we are proposing to do, and [start page 50] what hasoccurred in the United States. I quite admit that the United States system suits them; andif we are simply going to form a republic, and to establish an institution in which the

executive will not be in Parliament, and will not be responsible, the state of affairs will be

totally different. But I am contemplating that this Convention has in view the formation oftrue responsible government.

END QUOTEAndHansard 1-4-1891 Constitution Convention Debates

QUOTE

Sir SAMUEL GRIFFITH: No; but laws of the commonwealth, limited to laws for thepeace, order, and good government of the commonwealth, will apply to her on her

voyage. For instance, if it was necessary to send a prisoner to England, only such

provisions as are essential for the laws of the commonwealth outside the 3-mile limit

could possibly apply.END QUOTE.Hansard 1-4-1891 Constitution Convention Debates

QUOTESir SAMUEL GRIFFITH: The words of this clause to which exception has been taken

were framed by the imperial law officers in 1885 in substitution for words of a more limitedapplication which we proposed to have inserted. The question arose specially, as far as mymemory serves me, with regard to the power to legislate in connection with fisheries andterritorial waters outside the jurisdiction and the extradition of offenders. The laws of thecommonwealth would only have effect within the land territory and 3 miles beyond.

END QUOTE.Hansard 1-4-1891 Constitution Convention Debates

QUOTE

Sir SAMUEL GRIFFITH: If the hon. gentleman will look at the bill he will see that theonly laws which can apply are laws for the peace, order, and good government of thecommonwealth.

Sir JOHN DOWNER: "According to their tenor"!

Sir SAMUEL GRIFFITH: As the hon. gentleman reminds me, the words, "according to

their tenor," were inserted in this clause exactly for the purpose of indicating that.

Clause, as amended, agreed to.

END QUOTE.Hansard 14-4-1897 Constitution Convention DebatesQUOTE

No; but laws of the Commonwealth, limited to laws for the peace, order, and good government of the

Commonwealth, will apply to her on her voyage. For instance, if it was necessary to send a prisoner to England,


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only such provisions as are essential for the laws of the Commonwealth outside the three-mile limit couldpossibly apply.

That is to say, that the laws of the Commonwealth in respect of the matter cannot possibly affect any law

of the Imperial Parliament with which they may be in conflict, but so far as they are not in conflict theywill be applicable to a ship on her voyage for the preservation of those laws of the Commonwealth which it

is necessary to have enforced.

END QUOTE.


Mr. GORDON: I should like to ask Mr. Barton whether there is anything in this point:

A number of German fellow colonists may have taken the oath of allegiance to a foreign

power, especially those who have served in the ranks in Germany. Would it not be

necessary to add after "power" in line 27 the words "or who has not since beennaturalised as provided in clause 30"?

Mr. GLYNN: You cannot have two, allegiances.

Mr. BARTON: No; a man might have to go out of our Parliament to serve against us.

Sir GEORGE TURNER: He may be Minister of Defence.

Mr. CARRUTHERS: I would like to put a case to Mr. Barton. It may happen thattreaties may be in force between say England and Japan. There is a treaty almost in

operation on the very lines I am citing that will give to a British subject travelling in

Japan practically the same rights and privileges as he would enjoy as a citizen of his own

country. Surely it is never intended that by a person travelling in another country, who

becomes entitled to privileges conferred on him by a treaty between two high powers, heshould be disqualified from holding a seat in the Federal Parliament. Our members of

Parliament who are hardworked take their summer trips, and it may be that some of

them may come back and find they have lost their seats as a result of this clause.

Clause as read agreed to.


QUOTE

The Hon. E. BARTON (New South Wales)[12.4]: I think it is expected by the LegislativeCouncil of New South Wales that I should explain what the meaning of this amendment

is. In the first place, the desire of that body is that, inasmuch as the treaty-making power

will be in the Imperial Government, we should omit any reference to the making of

treaties by the commonwealth; in other words, while they concede that we should makecertain trade arrangements, which would have force enough if ratified by the ImperialGovernment, the sole treaty-making power is in the Crown of the United Kingdom.

Mr. HIGGINS: Clause 52 refers to treaties!

The Hon. E. BARTON: And, in conformity with the amendment they suggest in thisclause, they desire that the words "and treaties" should disappear from clause 52. There is agood deal of force [start page 240] in the contention, I think. I do not think the constitutionwill be in any way minimised or weakened by the omission of the words. As regards the


24/67





remainder of their amendments, they propose to confine the clause to laws, and not totreaties, and to make its latter part read in this way:

END QUOTE.Hansard 9-9-1897 Constitution Convention Debates (Official Record of the Debates of theNational Australasian Convention)QUOTE

The Right Hon. G.H. REID: I strongly support the amendment for the reasons whichmy hon. and learned friend has hinted at. This is an expression which would be more in

place in the United States Constitution, where treaties are dealt with by the President

and the senate, than in the constitution of a colony within the empire. The treaties made

by her Majesty are not binding as laws on the people of the United Kingdom, and there

is no penalty for disobeying them. Legislation is sometimes passed to give effect totreaties, but the treaties themselves are not laws, and indeed nations sometimes find

them inconvenient, as they neglect them very seriously without involving any important

legal consequences. The expression, I think, ought to be omitted. I will deal with the

other suggested amendments when the time comes.

Amendment agreed to.END QUOTE.If a treaty is not binding upon the people then how on earth could the Commonwealth of australiathen obtain legislative powers to enforce treaties one may ask the High Court of Australia?.Hansard 9-9-1897 Constitution Convention Debates (Official Record of the Debates of theNational Australasian Convention)QUOTE

The Hon. R.E. O'CONNOR: Because supposing that the commonwealth exercises its

powers to make uniform laws in regard to the shipping of the commonwealth, those lawscan be applied only within the 3-mile limit, and directly a ship gets outside the 3-mile

limit it is outside the territory in respect to which those laws apply. The laws of the

common- [start page 245] wealth with regard to shipping can only have operation withinthe 3-mile limit around the coasts of the commonwealth, and when ships pass beyond thatlimit they are under British law.

END QUOTE.Hansard 9-9-1897 Constitution Convention Debates (Official Record of the Debates of theNational Australasian Convention)QUOTE

The Right Hon. G.H. REID: That is the point. Under this constitution, with the leadingprinciple in it that it is not to go beyond what is in it, no principle or subject which is not

expressed within its pages can be dealt with by the federal parliament.END QUOTE.HANSARD 1-3-1898 Constitution Convention Debates

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

the Constitution we will have to wipe it out."END QUOTE


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.Hansard 11-3-1898 Constitution Convention DebatesQUOTE

The CHAIRMAN.-I do not think I can rule this proposed amendment out of order. Everyclause, or nearly every clause, in a Bill in some way qualifies the preceding clauses. They

extend the operation of those clauses, and, in some instances they limit the operation of

the clauses. This is not a distinct negative, and I think it would be unduly curtailing the power

of the committee to arrive at such a conclusion as they may think fit if I ruled this out oforder.


QUOTE Sir EDWARD BRADDON.-

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

be correct, that every clause should fit into every other clause; when we consider the

great amount of time, trouble, and expense it would take to make any alteration, and

that, if we have not made our intentions clear, we shall undoubtedly have laid the

foundation of lawsuits of a most extensive nature, which will harass the people of UnitedAustralia and create dissatisfaction with our work, it must be evident that too much care

has not been exercised.

END QUOTE.Hansard 8-2-1898 Constitution Convention DebatesQUOTE

Mr. OCONNOR (New South Wales).-The honorable and learned member (Mr. Isaacs) is Ithink correct in the history of this clause that he has given, and this is [start page 672] one ofthose instances which should make us very careful of following too slavishly the provisions ofthe United States Constitution, or any other Constitution. No doubt in putting together the

draft of this Bill, those who were responsible for doing so used the material they found inevery Constitution before it, and probably they felt that they would be incurring a great deal ofresponsibility in leaving out provisions which might be in the least degree applicable. But it isfor us to consider, looking at the history and reasons for these provisions in the Constitution ofthe United States, whether they are in any way applicable; and I quite agree with myhonorable and learned friend (Mr. Carruthers) that we should be very careful of every wordthat we put in this Constitution, and that we should have no word in it which we do not seesome reason for. Because there can be no question that in time to come, when thisConstitution has to be interpreted, every word will be weighed and an interpretation given toit; and by the use now of what I may describe as idle words which we have no use for, we maybe giving a direction to the Constitution which none of us now contemplate. Therefore, it isincumbent upon us to see that there is some reason for every clause and every word that goesinto this Constitution.


QUOTEstart page 1020] I think that we ought to be satisfied on these points, and satisfied that ifwe leave the clause as it now stands there will, at any rate, be some proviso inserted

which will safeguard the states in the carrying out of any of their state laws over whichthe states are to be supreme even under federation.


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END QUOTE.


Mr. GLYNN.-I think they would, because it is fixed in the Constitution. There is no specialcourt, but the general courts would undoubtedly protect the states. What Mr. Isaacs seeks todo is to prevent the question of ultra vires arising after a law has been passed.

[start page 2004]

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


QUOTE Mr. THYNNE:

I shall quote from Mr. Dicey's recent work, which is very clear in its language. He says:

One of the characteristics of a federation is that the law of the constitution must beeither legally immutable or else capable of being changed only by some authority above

and beyond the ordinary legislative bodies, whether federal or state legislatures, existing

under the constitution.

END QUOTE.Hansard 9-9-1897 Constitution Convention DebatesQUOTE Barton J,

the parliament cannot give the word a meaning not warranted by s73 of theConstitution.

END QUOTE

See also;Commonwealth v Brisbane Milling Co. Ltd. (1916) 21 C.L.R. 559; A.L.R. 272..

Hansard 17-4-1897 Constitution Convention DebatesQUOTE Mr. SYMON:

There can be no doubt as to the position taken up by Mr. Carruthers, and that many of

the rules of the common law and rules of international comity in other countries cannot

be justly applied here.

END QUOTE.Considering the Franklin Dam case (THE COMMONWEALTH OF AUSTRALIA v.

TASMANIA. THE TASMANIAN DAM CASE (1983) 158 CLR 1 )being related to a river existingonly in Tasmania then clearly Section 101 of the Constitution couldnt even be applied to this case.QUOTE

2. Section 9(1)(h) of the World Heritage Properties Conservation Act 1983 isvalid. In consequence, except with the consent in writing of the Commonwealth Minister, it isunlawful for any person to do the following acts in relation to particular specified propertyadjacent to the Franklin River, including Kutikina Cave and Deena Reena Cave: (a) carryingout works in the course of constructing or continuing to construct a dam that, whenconstructed, will be capable of causing the inundation of that peroperty or any part of it; (b)


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carrying out works preparatory to the construction of such a dam; (c) carrying out worksassociated with the construction or continued construction of such a dam.

END QUOTE.How on earth can any Commonwealth legislation override specific State internal legislation isbeyond me. The Framers of the Constitution specifically related Section 101 to a river through twoor more states. As such Section s.101 is out for this..Hansard 20-4-1897 Constitution Convention DebatesQUOTE

Dr. COCKBURN: We have to consider this matter simply as an ordinary landlord. The

federal authority will be the landlord of the site of the federal capital, and it is for us to

consider what is the best possible use to which the landlord can put the land. This does

not necessarily touch the question of land nationalisation or of methods of land tenure.Therefore I feel compelled to vote with Mr. Wise, and in doing that I do not admit that I agreewith the hon. member in all his views. I vote for the amendment because it establishes thegeneral methods of a sound principle, which is applicable in the present instance, and will go along way towards settling the question I have just alluded to.

Mr. HOWE: This land question is really the basis of all public good. So fax as the land lawsof each individual State are concerned, I think they should be left entirely to theParliament of that State.

END QUOTE.Again:QUOTE Dr. COCKBURN:

So fax as the land laws of each individual State are concerned, I think they should be left

entirely to the Parliament of that State.

END QUOTE.

As such, the Commonwealth of Australia was clearly denied any legislative powers as to interfereas to how any State were to administer land within its legislative powers. The exemption is inregard of land acquired for constitutional purposes but as we saw with South Australia when theCommonwealth succeeded in defeating the South Australia as to dump toxic waste inCommonwealth held territory, upon my urging to the Premier of South Australia Mr M Rann toappeal the case upon constitutional grounds that the commonwealth had no specific legislativepowers as to toxic w

who can assist-represent a party in legal proceedings?

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