060719gh Address Part 2 v7

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ADDRESS TO THE COURT, Part 2

County Court of Victoria, Case numbers T01567737 & Q10897630
STANDARDS OF BURDEN OF PROOF;
In criminal matters, at least as I understand it, the

Prosecutor has the burden of proof of criminal standard to
prove not only his case but to disprove each and every
element of the excuses proffered by the accused, this, while
the defendant has the civil standard of proof.
Therefore, if the Commonwealth Director of Public Prosecution is unable to prove beyond
reasonable doubt any of the excuses or reasons given by the Defendant then the Court cannot
convict, this as the criminal standards of proof requires that each and every element of the
Defendants case must be disproved. It is not good enough for the prosecutor to disprove 999 of a
1000 arguments put forwards by the Defendant, as a single argument failing to be disproved is
fatal to the prosecutions case to obtain a conviction.
Denial of exhibit ADDRESS TO THE COURT, even so already filed and served!
The Defendant has in the past experienced that a judge ignored the content of the ADDRESS TO
THE COURT only for the Full Court overturning the orders as the Full Court made clear that the
trial judge erred in law not to consider the relevant material that was before the Court.
Can a Magistrate by implication overrule a decision of another Magistrate, without being

aware of the previous Magistrate decision?
In my view a magistrate has no legal powers to overrule another magistrates decision and is bound
to consider any orders on foot. Hence the magistrate on 16 and 17 November 2005 was bound to
respect the outstanding orders directions of 4 December 2002 and 4-8-2005.
Can writs be declared invalid?
As elsewhere already set out in this ADDRESS TO THE COURT, writs can be declared invalid
if they fail to be as required by legislative provisions as well as if they are issued where there is no
vacancy existing. Such as if a writ is issued prior to the publication of the Proclamation for a
“general election”.
Can elections be declared invalid?
Elections can be declared invalid, as set out elsewhere in this ADDRESS TO THE COURT, as
an election held under a defective writ is no election at all.
Is Section 353 of the Commonwealth Electoral Act 1918 unconstitutional?
During the proceedings before Marshall J of the Federal Court of Australia on 7 November 2001
Mr Peter Hanks QC of the Australian Electoral Commissioner submitted that Section 353 using
the term “and not otherwise” therefore did not allow jurisdiction to the Federal Court of Australia
Page 1 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630
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to hear and determine matters governing an election. Marshall J wrongly accepted this
proposition.
The Constitution and so any provisions stated in the Constitution, including Section 32 are
subject to the legal determination of the High Court of Australia, which has the original
jurisdiction, and cannot be purportedly denied by the Parliament to be delegated to some Court of
Disputed Returns.
What was originally was that if there was an issue about a member of the House (of a Parliament)
being challenged to his validity to be in the House then this was determined by the other Members
of that House if the person was or was not entitled to be a Member of that House.
This is a complete different issue as to what the Defendant was pursuing before the Federal Court
of Australia, as the Defendant on 2 November 2001 and subsequently on 7 November 2001 was
not challenging any sitting member but was in fact challenging the legal validity of the writs that
were used for the intended election to be held then on 10 November 2001.
The challenge against the validity of any writ or proclamation is a constitutional issue and
therefore to be heard and determined in the ordinary manner. By a Court of law, which the High
Court of Australia sitting as a Court of Disputed Returns cannot be classified to be as such,
regardless if this is still involving the High Court of Australia and so its judges.
The defendant instituted his proceedings prior to the purported 10 November 2001 election being
held, and therefore there was no sitting member under challenge that possibly could have invoked
the right of a House to declare if a Member should sit in the House or not. Hence, the Court of
disputed Returns therefore neither could exercise for the House this issue. Therefore if Section
353 is to purport that “and not otherwise” is to be understood as Marshall J did that a challenge to
an election at all times must be before the Court of Disputed Returns, then this is unconstitutional
as it denied the High Court of Australia sitting as High Court of Australia its original jurisdiction.
Further, it would make a mockery of the Constitution, as Members of the Parliament could then
by this overrule any constitutional provision and avoid this being scrutinised by the High Court of
Australia or any other Court exercising federal jurisdiction as a Court of law.
The meaning and validity of;

(1) The validity of any election or return may be disputed by petition addressed to the
Court of Disputed Returns and not otherwise.
And the meaning and validity of;
The High Court shall be the Court of Disputed Returns, and shall have jurisdiction either
to try the petition or to refer it for trial to the Federal Court of Australia (the Federal Court).
are in question. This, as the wording “validity of election” is beyond the scope of the Parliament
to legislate for. The Parliament could legislate as to the manner in which a member of parliament
may have been elected, but could not provide for legal issues, such as a prospective candidate
wrongly denied to be nominated by the Australian Electoral Commission to have to follow the
course of a Court of Disputed Returns, as this is a “legal issue” of wrongly excluding a
prospective candidate, and the fact that incidentally a sitting Member may then have to vacate
his/her seat obtained during that election is not the real “legal” issue. It is a mere consequence to
if an election was not held in a proper legal format then the election was held invalid and the
parliament (either house) never had any constitutional power to override this, and as such neither
can the Court of Disputed Returns, acting for either House then exercise such power.
353 Method of disputing elections
(1) The validity of any election or return may be disputed by petition addressed to the Court of
Disputed Returns and not otherwise.
(2) The choice of a person to hold the place of a Senator by the Houses of Parliament of a State or
the appointment of a person to hold the place of a Senator by the Governor of a State under
section 15 of the Constitution shall be deemed to be an election within the meaning of this
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section, and the provisions of this Division shall, so far as applicable, have effect as if that
choice or appointment were an election within the meaning of this Division.
(3) The choice of a person to hold the place of a Senator for the Australian Capital Territory by
the Legislative Assembly for the Australian Capital Territory or the appointment of a person
to hold the place of such a Senator by the Chief Minister for the Australian Capital Territory
under subsection 44(1) shall be deemed to be an election within the meaning of this section,
and the provisions of this Division shall, so far as applicable, have effect as if that choice or
appointment were an election within the meaning of this Division.
(4) The choice of a person to hold the place of a Senator for the Northern Territory by the
Legislative Assembly of the Northern Territory or the appointment of a person to hold the
place of a Senator by the Administrator of the Northern Territory under subsection 44(2) shall
be deemed to be an election within the meaning of this section, and the provisions of this
Division shall, so far as applicable, have effect as if that choice or appointment were an
election within the meaning of this Division.
354 The Court of Disputed Returns
(1) The High Court shall be the Court of Disputed Returns, and shall have jurisdiction either to
try the petition or to refer it for trial to the Federal Court of Australia (the Federal Court).
(2) When a petition has been so referred for trial, the Federal Court shall have jurisdiction to try
the petition, and shall in respect of the petition be and have all the powers and functions of the
Court of Disputed Returns.
(3) The High Court may refer to the Federal Court part of a petition in respect of an election or
return, being a part that consists of a question or questions of fact.
(4) Subject to any directions by the High Court, if the High Court refers part of a petition to the
Federal Court under subsection (3):
(a) the Federal Court has jurisdiction to deal with the part of the petition that has been
referred; and
(b) the Federal Court has, in respect of the petition, the powers and functions of the Court of
Disputed Returns, other than the powers referred to in paragraphs 360(1)(v), (vi), (vii)
and (viii) and in section 379; and
(c) subject to any directions by the High Court, further proceedings in relation to the part of
the petition are as directed by the Federal Court.
(5) The High Court may have regard to the findings of the Federal Court in dealing with the
petition and may in its discretion receive further evidence on questions of fact.
(6) The jurisdiction conferred by this section may be exercised by a single Justice or Judge.
383 Injunctions
(1) Where a person has engaged, is engaging or is proposing to engage in any conduct that
constituted, constitutes or would constitute a contravention of, or an offence against, this Act
or any other law of the Commonwealth in its application to elections, the Federal Court of
Australia (the Federal Court) may, on the application of:
(a) in a case where the conduct relates to an election—a candidate in the election; or
(b) in any case—the Electoral Commission;
grant an injunction restraining the first-mentioned person from engaging in the conduct and, if
in the opinion of the Federal Court it is desirable to do so, requiring that person to do any act
or thing.
(2) Where:

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(a) a person has refused or failed, is refusing or failing, or is proposing to refuse or fail, to
do an act or thing; and
(b) the refusal or failure was, is, or would be, a failure to comply with, or an offence
against, this Act or any other law of the Commonwealth in its application to elections;
the Federal Court may, on the application of:
(c) in a case where the refusal or failure relates to an election—a candidate in the election;
or
(d) in any case—the Electoral Commission;
grant an injunction requiring the first-mentioned person to do that act or thing.
(3) Where an application is made to the Federal Court for an injunction under subsection (1), the
Federal Court may, if in the opinion of the Federal Court it is desirable to do so, before
considering the application, grant an interim injunction restraining a person from engaging in
conduct of the kind referred to in that subsection pending the determination of the application.
(4) The Federal Court may discharge or vary an injunction granted under subsection (1), (2) or
(3).
(5) Where an application is made to the Federal Court for the grant of an injunction restraining a
person from engaging in conduct of a particular kind, the power of the Federal Court to grant
the injunction may be exercised:
(a) if the Federal Court is satisfied that the person has engaged in conduct of that kind—
whether or not it appears to the Federal Court that the person intends to engage again, or
to continue to engage, in conduct of that kind; or
(b) if it appears to the Federal Court that, in the event that an injunction is not granted, it is
likely that the person will engage in conduct of that kind—whether or not the person has
previously engaged in conduct of that kind and whether or not there is an imminent
danger of substantial damage to any person if the first-mentioned person engages in
conduct of that kind.
(6) Where an application is made to the Federal Court for the grant of an injunction requiring a
person to do a particular act or thing, the power of the Federal Court to grant the injunction
may be exercised:
(a) if the Federal Court is satisfied that the person has refused or failed to do that act or
thing—whether or not it appears to the Federal Court that the person intends to refuse or
fail again, or to continue to refuse or fail, to do that act or thing; or
(b) if it appears to the Federal Court that, in the event that an injunction is not granted, it is
likely that the person will refuse or fail to do that act or thing—whether or not the
person has previously refused or failed to do that act or thing and whether or not there is
an imminent danger of substantial damage to any person if the first-mentioned person
refuses or fails to do that act or thing.
(7) Where the Electoral Commission makes an application to the Federal Court for the grant of an
injunction under this section, the Federal Court shall not require the Electoral Commission or
any other person, as a condition of the granting of an interim injunction, to give any
undertakings as to damages.
(9) An appeal lies to the High Court from a judgment or order of the Federal Court exercising
jurisdiction under this section.
(10) The powers conferred on the Federal Court under this section are in addition to, and not in
derogation of, any other powers of the Federal Court, whether conferred by this Act or
otherwise.

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384 Prosecution of offences
(1) Subject to subsection (2), an offence against subsection 315(3) or section 326 is an indictable
offence.
(2) A court of summary jurisdiction may hear and determine proceedings in respect of an offence
referred to in subsection (1) if the court is satisfied that it is proper to do so and the defendant
and the prosecutor consent.
(3) Where, in accordance with subsection (2), a court of summary jurisdiction convicts a person
of an offence against subsection 315(3) or section 326, the penalty that the court may impose
is:
(a) in the case of an offence against subsection 315(3)—a fine not exceeding $5,000; or
(b) in the case of an offence against section 326—a fine not exceeding $2,000 or
imprisonment for a period not exceeding 12 months, or both.
In view of Section 326 I view it constitute an offence for any candidate/political party to make
arrangements with another candidate/political party as to how to list voting preferences. As such
the conduct of Leaders of all political party involving their comments to put Pauline Hanson One
Nation last, during the 2001 and 2004 federal elections, and asking people to do so was illegal.
http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.one&db=hansard91&dodraft=0
&pageno=228&house=COUNCIL&speech=7136&d
I have given that argument some credence and examined it in detail. I must go to
the process described in the Bill. I am told that the description encompassed in pages
9 to 14 of the Bill is based upon the Senate system. If that has been put forward as a
simpler system and a reason for the opposition to support its simplistic basis, that is
hardly a cogent argument.
Page 228
I cannot understand how the process described in this Bill could be less complicated
than any other form of election process. I invite honourable members to examine the
extremely complicated formula described in the Bill. Those responsible for the
conduct of elections in local government would pull out their hair if these provisions
were dropped on them overnight.
If simplicity and speed of determining an outcome are to be the criteria on which we

judge the various election processes, the most appropriate system could be that of
equal value voting, as that system has no preferences but the electors vote only for
the number of candidates to be elected; they simply place ticks or crosses in the
boxes alongside sufficient of the candidates to fill the vacancies. Those with the most
votes are elected; the election result is obtained extremely quickly. The system is
easily understood and, consequently, very few informal votes are lodged. The system
ensures adoption of the important central criteria whereby successful candidates are
supported by the majority.
Hon. B. A. E. Skeggs interjected.
Hon. R. M. HALLAM -- That system is used very widely indeed: in New Zealand; in
local government in the United States of America; and, as my colleague points out, in
Great Britain. It is also used in Queensland.
Hansard 24-3-1897 Constitution Convention Debates

At the same time, as some colonies have given the right of voting to those who have not that
right in other colonies, it would be unfair and inequitable to take from any who have the

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right, and therefore whatever uniformity is determined upon we shall have to allow the
innovation that no person, man or woman, who has the right to vote shall be deprived
of exercising that right, even so far as the elections to the Federal Parliament are
concerned. I would go the length of saying that everyone who has the right in the various
colonies, if they desire to exercise their franchise, should have the opportunity of doing
so.
Again;
if they desire to exercise their franchise
This clearly provides an option to the elector to vote or not to vote! compulsory voting for this
also is unconstitutional. And, the recent passing of law that closes enrolment when a federal
election is called also is unconstitutional as every elector, once having attained the right to vote in
a State election then has the right to vote (Section 41 of the Constitution) and therefore cannot be
denied to vote in federal elections, as constitutionally there is no registration required to vote in
federal elections as one already has obtained this right when one register with a State for this!

Mr. BARTON.-Is not the right process to alter the word "qualification" to "right"?
Mr. KINGSTON.-Qualification means registration.
Mr. BARTON.-If the person has a legal right, he has to retain that legal right. Supposing
he lost the legal right, but in some mysterious way retained the qualification, it is not
intended that the law should help him? It is only intended that the law should help him if he
has a legal right. I should say that, unless there is some reason given for what we did in
Adelaide, which I do not recollect at this moment, the word "right" would be the proper
word to use.
Mr. ISAACS (Victoria).-In our Electoral Act a difference exists between the right to vote
and the qualification. A man is qualified to become an elector.
Mr. KINGSTON.-This is a limitation on the right to vote.
Mr. OCONNOR.-Suppose a man has a right to vote in some colony by virtue of property.
While the qualification continues to exist you cannot take away that right.
Mr. ISAACS.-Suppose he has the right to vote by virtue of ail elector's right, and that by
some accident be does not renew his elector's right for a day. Is he to be deprived of his vote
because he takes out an elector's right the day afterwards? The qualification exists, but the
right to vote does not.
Mr. BARTON.-Would you mind putting that again?
Mr. ISAACS.-A man is qualified to become an elector. He has not the right to vote until
certain conditions are fulfilled; he may have to register, or be may be struck off the roll
through some accident. His right to vote is gone through some accident, but his qualification
continues. He is a person whose right would not be preserved under this clause, because it
applies to the individual-the elector.
Mr. BARTON.-If he loses the right in his own state by his own negligence, is it not right
that he should lose the right also in the Commonwealth?
Mr. ISAACS.-He may lose it without negligence; he may lose it without any fault of his
own. That has been the case with tens of thousands in Victoria.
Further, the conduct to apply preference voting system and by this forcing me as a candidate to
make arrangements with other candidates as to how I shall list preferences in return for them to do
likewise to my benefit itself also is an offence under the act.
A reasonable minded person cannot accept that as a candidate I do not make a bargain with
another candidate as to listing of preference vote on the “how to vote card” and as such the “how
to vote card” in itself must be deemed illegal as being an offence within Section 326 of the
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Commonwealth Electoral Act 1918. any election held therefore using the ‘how to vote cards”
cannot be deemed to be FAIR and PROPER where a person like myself refusing to engage in
such kind of bribery conduct then is disadvantaged by those using the “how to vote” system.
In any election I was ever involved in as a candidate I have always opposed to use a “how to vote”
card system and never used this. Electors who vote using the “how to vote card” unwittingly are
participating in a bribery scam.
“How to vote” card are precisely set out to do what Section 326 prohibits, and as such no law
abiding citizen possibly could use the “how to vote card” in that regard.
This further is relevant that a candidate seeking to be listed first on a ‘How to vote card” by this
receiving from the Government financial benefit for each and every first vote (of about $1.95 per
vote, and rising) clearly then also makes the “how to vote” card illegal. This, as by placing a
candidate first for electors to vote then this includes receiving a financial benefit. Indeed, the
political parties generate millions of dollars by this and in fact pre-spend this on political
advertisement in this regard also to deny other candidates, in particular most INDEPENDENT
candidates a FAIR and PROPER election. This, as a candidate not having such financial
resources cannot then splash out on elaborate advertising as the Political parties do.
Where matters such as breaches of Section 326 are of a criminal nature then this is not within the
realm of a Court of Disputed Returns to entertain, even if this directly relates to a Member of the
House being challenged having obtained his/her seat by bribery but would at all times remain a
issue to be determined by a Court of law. The Parliament, so each House never was intended to
have any powers to deal with any Member as to criminal issues as that always was and remained
to be a issue for a Court of law.
If therefore a person was to challenge the validity of a person having been elected based upon
criminal conduct, such as bribery, then where it involves criminal law the appropriate course
would be the ordinary litigation before a Court of law and Section 353 for this never could be
applied.
Likewise so with any challenge to the validity of the Proclamation and the validity of any writ,
they cannot and never were within the powers of a House to determine, as they are governed in
principle by section 32 of the Constitution and therefore remain a “legal issue” beyond the powers
of the Parliament (sitting as a House) and as such it would be unconstitutional if Section 353 is to
portray that nevertheless such litigation was to be before the Court of Disputed Returns. The is no
election if there writ is defective, as an election cannot exist unless there is a valid writ to
authorise the holding of an election. Therefore, in that regard also, Section 353 does not come into
play, so to say, unless there are valid writs for holding an election. The Defendant having
challenged the validity of the writs (all writs) upon “legal” grounds prior to the purported federal
election having been held on 10 November 2001 therefore acted in a proper legal manner and his
“petition” directed by the Registrar of the High Court of Australia to be filed in the Federal Court
of Australia, as also the Australian Electoral Commissioner’s lawyers did, then was the proper
course to follow, where they also sought Section 75(v) mandamus and Prohibition orders,
something in regard of which the Court of disputed Returns has neither any legal jurisdiction as to
entertain.
It could not be that a “Court of summary jurisdiction” could hear and determine bribery
allegations and if proven then nevertheless the elected member so convicted could not be ousted
by this Court of having not validly been elected. It would be in the powers of this court of
summary jurisdiction then exercising federal jurisdiction to declare the election to be invalid and
hold that therefore the person purportedly elected by using bribery never was elected.
In particular where the Court of Disputed Returns limit the filing of a petition within a certain
period and a bribery case may be heard well long after the closure of any filing of a petition in the
Court of Disputed Returns, it would make a mockery of the legal processes if then a sitting
member can be convicted having used bribery but cannot be ousted by the Court due to lapse of
time.
The real meaning of Section 353 of the CEA1918 “and not otherwise” is that disputes about a
sitting member, not involving legal issues, that used to be dealt with by the relevant House itself
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no longer can be dealt with by the Parliament (the House itself) but has to be before the relevant
Court. It does not and could not relate to election disputes governing constitutional and other legal
issues.
Hence, on the ruling of Marshall J, relating to the dispute of the validity of the writs, by which
Marshall J relied upon the meaning of Section 353 of the CEA1918 “and not otherwise” then this
is a term that is unconstitutional, as it is clearly perceived to have a meaning prohibited by the
Constitution to have such a application as it undermines indeed would prevent the High Court of
Australia to exercise its original jurisdiction, such as in regard of Section 75(v) which the
Defendant then used for his petition for mandamus and Prohibition orders, a power the Parliament
never did poses.
326 Bribery
(1) A person shall not ask for, receive or obtain, or offer or agree to ask for, or receive or obtain,
any property or benefit of any kind, whether for the same or any other person, on an
understanding that:
(a) any vote of the first-mentioned person;
(b) any candidature of the first-mentioned person;
(c) any support of, or opposition to, a candidate, a group of candidates or a political party
by the first-mentioned person;
(d) the doing of any act or thing by the first-mentioned person the purpose of which is, or
the effect of which is likely to be, to influence the preferences set out in the vote of an
elector; or
(e) the order in which the names of candidates nominated for election to the Senate whose
names are included in a group in accordance with section 168 appear on a ballot paper;
will, in any manner, be influenced or affected.
Penalty: $5,000 or imprisonment for 2 years, or both.
(2) A person shall not, with the intention of influencing or affecting:
(a) any vote of another person;
(b) any candidature of another person; or
(c) any support of, or opposition to, a candidate, a group of candidates or a political party
by another person;
(d) the doing of any act or thing by another person the purpose of which is, or the effect of
which is likely to be, to influence the preferences set out in the vote of an elector; or
(e) the order in which the names of candidates for election to the Senate whose names are
included in a group in accordance with section 168 appear on a ballot paper;
give or confer, or promise or offer to give or confer, any property or benefit of any kind to that
other person or to a third person.
Penalty: $5,000 or imprisonment for 2 years, or both.
(3) This section does not apply in relation to a declaration of public policy or a promise of public
action.
327 Interference with political liberty etc.
(1) A person shall not hinder or interfere with the free exercise or performance, by any other
person, of any political right or duty that is relevant to an election under this Act.
Penalty: $1,000 or imprisonment for 6 months, or both.
(2) A person must not discriminate against another person on the ground of the making by the
other person of a donation to a political party, to a State branch or a division of a State branch
of a political party, to a candidate in an election or by-election or to a group:
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(a) by denying him or her access to membership of any trade union, club or other body;
(b) by not allowing him or her to work or to continue to work;
(c) by subjecting him or her to any form of intimidation or coercion;
(d) by subjecting him or her to any other detriment.
Penalty:
(a) if the offender is a natural person—$5,000 or imprisonment for 2 years, or both; or
(b) if the offender is a body corporate—$20,000.
If this Court is deemed to have legal jurisdiction then has it jurisdiction to declare writs
invalid?
This Court, if it can invoke legal jurisdiction, would be entitled to declare a writ invalid where it is
a defective writ. However, if the issue is a constitutional issue then in view of the 4 December
2002 orders to transfer the matters to the High Court of Australia then the Court could not address
such constitutional issues.
If this Court is deemed to have legal jurisdiction then has it jurisdiction to declare elections
having been invalid?
Where the Court was to declare any writ invalid due to being defective then this implies that the
election held by such a defective writ was invalid.
Did the Federal Court of Australia have legal jurisdiction regarding electoral matters?
Yes!
The proceedings that were before the Federal Court of Australia were two fold, one within Section
383 of the Commonwealth Electoral Act 1918 and the other was within Section 75(v) of the
Constitution for Prohibition and Mandamus. This Section 75(v) issue was ignored by the Court
even so the Australian Electoral Commission lawyer themselves did acknowledge that I pursued
mandamus and prohibition orders.
HANSARD records the following Constitutional Convention 22 April 1897 [page 1150]
Mr. BARTON: I have to propose a new clause to follow clause 48 in this form:
Until the Parliament otherwise provides all questions of disputed elections
arising in the Senate or House of Representatives shall be determined by a Court
exercising federal jurisdiction.
We have not said "the High Court" here, because there is power in the
Constitution to invest any court with federal jurisdiction, so that this clause will
work in this convenient way that the Court of a State invested with federal
jurisdiction may determine such a matter in any States

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Section 353 of the Commonwealth Electoral Act 1918 is very misunderstood and misinterpreted
as to its true meaning. It is therefore the source of miscarriages of justice.
QUOTE
Kelly v Australian Electoral Commission S250/2001 (31 October 2001)

IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S250 of 2001
Between-
NED KELLY
Plaintiff
and
AUSTRALIAN ELECTORAL COMMISSION
Respondent
Application for expedition
GLEESON CJ
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON WEDNESDAY, 31 OCTOBER 2001, AT 10.16 AM
Copyright in the High Court of Australia
MR N. KELLY appeared in person.
MS R.M. HENDERSON: If the Court pleases, I appear for the respondent. (instructed by
the Australian Government Solicitor)
HIS HONOUR: Yes, Mr Kelly.
MR KELLY: Your Honour, this is an application for an expedited hearing in relation to a

writ and a statement of claim that has been filed in the Court. I have the benefit of the
respondent's outline to the Court and essentially they are saying to the Court there are two
issues that have been raised. I could define the first issue as one of nomination, that being
my nomination and my fellow independent, Mr Davy. The second issue, Chief Justice, is the
issue of the constitutional validity of section 169A(3).
HIS HONOUR: Just excuse me for a moment.
MR KELLY: Sure.
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HIS HONOUR: Yes.
MR KELLY: The third matter, Chief Justice, is also the question of the constitutionality of
a further subsection within the Act and, just bear with me, that section would be 169(4). I
mistakenly put the incorrect section in my statement of claim and I will be seeking leave to
amend that. But that is the nub of the three matters that the application is concerned about.
The respondent has indicated that they are not opposed to having the matter heard on an
expedited basis, although they did submit to the Court that it ought to be transferred, as I
understand it, under section 44 of the Judiciary Act to the Federal Court for hearing. I
opposed such a move, Chief Justice, on the basis that I believe that there are constitutional
issues that fall squarely within the Court's original jurisdiction.
HIS HONOUR: I am afraid before we get to any constitutional issues there are some
factual issues about what actually went on, although the precise scope of those issues is not
clear at the moment because your statement of claim is defective in form. Your statement of
claim in paragraph 5 refers to "The actions" of certain people, but it does not say what the
relevant actions are. If you contend that there were acts or omissions on the part of officers
of the Australian Electoral Commission that constitute a contravention of the statute, as you
appear to say in paragraph 5, then you are going to have to state what the acts or omissions
upon which you rely are.
Now, in an affidavit that you have filed there is some indication of the sorts of things that
you might want to allege, but they are going to have to be alleged in a statement of claim.
MR KELLY: Yes, I accept that.
HIS HONOUR: And when they are alleged in a statement of claim, we will then need to
know, by reference to the defence, what dispute there is about the allegations that you make.
MR KELLY: I accept that.
HIS HONOUR: One of the reasons that I would be in difficulty ordering an expedited
hearing today is that the matter is not ready for hearing. The statement of claim is not in a
proper form and we do not know the area of factual dispute between you and the defendant.
Have you noticed what appears in paragraph 11 of the outline of the defendant's
submissions, particularly in the last three lines of paragraph 11?
MR KELLY: Yes, I did, Chief Justice, although I received those after midday yesterday
and I was not in a position to do much about them before this morning, but I have taken
cognisance of those, yes.
HIS HONOUR: Well, do you contend that you have "received incorrect advice from one or
more officers of the Australian Electoral Commission"?
MR KELLY: That will be one of the grounds, Chief Justice, yes.
HIS HONOUR: Then whatever court deals with this matter will need to know what exactly
your contentions are in that regard and what the officers of the Australian Electoral
Commission might have to say about your contentions. They might disagree with what you
say happened.
MR KELLY: It appears to be they may.

Part 2 Page 12
HIS HONOUR: Yes. Is there anything else you want to say?
MR KELLY: I accept what is said. There is no question that the statement of claim is
deficient and I would seek a - - -
HIS HONOUR: Does that not tend to suggest that the most likely way to get a reasonably
early hearing of this matter is for it to be remitted to the Federal Court?
MR KELLY: Well, I cannot comment on that, Chief Justice. I am not really sure of the
procedures of the Federal Court, but I applied to the High Court because where it is a matter
of constitutional interpretation I understood it to be solely within the jurisdiction of this
Court. If I am incorrect in that, I accept that, but that was the reason for the application to
this Court.
HIS HONOUR: Is there anything else you want to say?
MR KELLY: Not unless I can assist your Honour.
HIS HONOUR: Ms Henderson, what do you say?
MS HENDERSON: Your Honour, I have nothing to add to the matters which are in the
outline.
HIS HONOUR: So far as you are aware, is there any reason why the Federal Court would
not have jurisdiction to decide all the matters in issue in this case?
MS HENDERSON: To my knowledge, your Honour, there would be no barrier to them

doing so.
HIS HONOUR: As I indicated to Mr Kelly, the matter that weighs heavily with me at the
moment is that there may well be an area of factual dispute as to what actually went on
between Mr Kelly and others and officers of the Electoral Commission.
MS HENDERSON: With respect, your Honour is quite right in apprehending that would
be the case. I understand Mr Kelly had telephone contact with a number of personnel of the
Commission at various stages close to the events on 18 October and it may be that there
were things said to him at some stage in any of those conversations which will become
relevant to the court's consideration of the matter.
HIS HONOUR: Thank you.
MS HENDERSON: If your Honour pleases.
HIS HONOUR: Mr Kelly, subject to anything else you want to put me, I am minded at the
moment to take the course suggested by the Commission and that is to remit the matter to
the Federal Court.
MR KELLY: Yes. Well, it appears then no question there will be factual dispute. I mean, I
did think initially that there perhaps would not be but it is quite clear perhaps there now will
be. So that is a barrier, I suppose, in terms of this Court, I suppose, hearing any other
constitutional issue. I accept that as well. I did originally think there was not going to be a
factual dispute, but these things have a life of their own.

Part 2 Page 13
HIS HONOUR: It appears from what has been put to me by way of submission, orally and
in writing, by the plaintiff and the defendant that there may well be areas of factual dispute
in this case. However, as I pointed out to the plaintiff, without expressing any final view on
the matter, the statement of claim filed appears to be defective in form, at least insofar as
paragraph 5 of the statement of claim refers, without any particularity, to actions on the part
of officers of the defendant which are said to involve contraventions of legislation and
otherwise to involve denial of rights claimed by the plaintiff.
As appears from paragraph 11 of the outline of the defendant's submissions, when further
particularity of the allegations made by the plaintiff concerning acts or omissions on the part
of officers of the defendant is produced, it may well be that the defendant will want to
contradict those allegations and lead evidence in rebuttal of them. I might add in that respect
that some of the evidence contained in the affidavit filed by the plaintiff appears to be
hearsay in form and that is a matter that might need to be given further consideration when
it comes to proving the facts on which the plaintiff relies. In that respect, I have in mind, for
example, paragraph 21 of the affidavit.
What I have before me at the moment is an application for an expedited hearing of the
plaintiff's action. The action is not ready for hearing. As I indicated, the statement of claim
is not in proper form, no defence has been filed and there well may be evidence that needs
to be prepared on both sides of the case. However, counsel for the defendant has submitted
that the case appears to raise no issue which is not capable of resolution in the Federal Court
and that, partly because of the potential area of factual dispute that may arise, the best way
to deal with the matter would be to remit the whole matter to the Federal Court under
section 44 of the Judiciary Act.
Having heard what both sides have had to say on the subject, I think that that is the most
appropriate course to take and I make an order remitting the action to the Federal Court of
Australia. The costs of today's proceedings will be a matter to be dealt with by the Federal
Court in its discretion in due course.
Is there anything further?
MS HENDERSON: If your Honour pleases, we have taken the step of preparing some draft
orders. There was one further order that we seek in that document.
HIS HONOUR: Have you shown those to Mr Kelly?
MS HENDERSON: Yes, your Honour.
HIS HONOUR: Have you any objection to any of those orders, Mr Kelly?
MR KELLY: Not in the light of your order, Chief Justice.
HIS HONOUR: Thank you. I make an order formally in terms of the document initialed by
me, dated with today's date and placed with the papers.
MS HENDERSON: If the Court pleases.
HIS HONOUR: Call the next matter, please.
AT 10.31 AM THE MATTER WAS CONCLUDED

Part 2 Page 14
END QUOTE
QUOTE
Kelly v Australian Electoral Office [2001] FCA 1557 (5 November 2001)

Last Updated: 7 November 2001
FEDERAL COURT OF AUSTRALIA
Kelly v Australian Electoral Office HYPERLINK

"http://www.austlii.edu.au/au/cases/cth/federal_ct/2001/1557.html" [2001] FCA 1557
EDWARD KELLY v AUSTRALIAN ELECTORAL OFFICE
N 1480 OF 2001
EMMETT J
5 NOVEMBER 2001
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 1480 OF 2001
BETWEEN: EDWARD KELLY
APPLICANT
AND:
AUSTRALIAN ELECTORAL OFFICE
RESPONDENT
JUDGE: EMMETT J
DATE OF ORDER: 5 NOVEMBER 2001
WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
The application for an expedited hearing be refused.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA

Part 2 Page 15
NEW SOUTH WALES DISTRICT REGISTRY N 1480 OF 2001
BETWEEN: EDWARD KELLY
APPLICANT
AND:
AUSTRALIAN ELECTORAL OFFICE
RESPONDENT
JUDGE: EMMETT J
DATE: 5 NOVEMBER 2001
PLACE: SYDNEY
REASONS FOR JUDGMENT
1 On 31 October 2001 the Chief Justice of the High Court remitted proceeding number S250
of 2001 to this Court. In that proceedings the plaintiff sought an order of mandamus against
the Australian Electoral Commission ("the Commission") requiring acceptance and
declaration of his nomination, and prohibition of the holding of "the New South Wales
Senate election" until implementation of the order of mandamus. He also sought an
injunction restraining the Commission from holding the election of senators "to the New
South Wales Senate" until the final determination of the matters raised in the proceeding. In
addition he sought a declaration that HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/s169a.html" s 169A (3)
of the HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/"
Commonwealth Electoral Act 1918 ("the Act") is invalid. That section deals with the
form of the ballot paper for a Senate election. It provides that a candidate may not make a
request to be described as independent, as well as making a joint request with another
candidate that their names be grouped in the ballot paper.
2 At a directions hearing today, the plaintiff has indicated that he no longer presses for
mandamus. He seeks to file an amended statement of claim in which the relief sought is:
* an injunction restraining the Commission from the conduct of the ballot for the Senate
election for New South Wales until final determination of the matter;
* a declaration that his nomination substantially complied with the HYPERLINK

"http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/" Commonwealth Electoral
Act ;
* a declaration that the writ for the Senate of New South Wales was issued
unconstitutionally and is a nullity;
* orders striking out HYPERLINK

"http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/s169.html" ss 169 (4) and

Part 2 Page 16
HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/s169a.html" 169A (3) of
HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/" the
Act as unconstitutional; and
* exemplary damages and costs.
3 When the matter came before me earlier this afternoon, the plaintiff initially indicated that
he wished to seek interlocutory relief. That application was then abandoned and the plaintiff
sought that the matter be expedited to the extent of a final hearing prior to Saturday 10
November, when the election is to be held. That application is opposed by the Commission
on the basis that there is no need for an expedited hearing of the issues that are raised by the
proceeding. The Commission contends that there is no jurisdiction in this Court to restrain
the holding of the election on the ground that there is some invalidity involved in the
election, such as the wrongful rejection by the Commission or its officers of the applicant's
nomination.
4 HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/s353.html" Section
353 (1) of HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/" the Act provides that
"[t]he validity of any election or return may be disputed by petition addressed to the Court
of Disputed Returns and not otherwise". Under HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/s354.html" s 354 (1) the
High Court of Australia is to be the Court of Disputed Returns and is to have jurisdiction
either to try a petition or refer it for trial to the Federal Court of Australia.
5 In my view, the effect of those provisions is to provide that the only method whereby the
validity of the Senate election to be held on 10 November 2001 can be disputed or called in
question is by means of a petition to the High Court after the election. Even if this
proceeding were expedited to the extent of a final hearing before Saturday, no order could
be made restraining the holding of the election on the ground that the election would be
invalid. I cannot perceive any other basis upon which the Court would intervene in the
holding of the election.
6 The proposed amended statement of claim raises other questions as to the constitutionality
and validity of the election. The same arguments seem to me to be applicable to the
contention that the writ issued for the Senate election for New South Wales is defective. The
plaintiff's claim is that the Governor of New South Wales is not constitutionally appointed.
The plaintiff claims that no Governor of New South Wales has been validly appointed since
the Parliament of Westminster passed the British Nationality Act 1948. If that argument be
correct, the validity of the election would be called into question by means otherwise than
that prescribed by Part XXII of the HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/" Commonwealth Electoral
Act .
7 No argument has been advanced as to why any claim for damages should be expedited. In
my view there is no reason why any claim for damages should be expedited. In the
circumstances, I am not prepared to accede to the request for an expedited hearing of this
proceeding.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons
for Judgment herein of the Honourable Justice Emmett.
Part 2 Page 17
Associate:
Dated: 7 November 2001
Counsel for the Plaintiff: The plaintiff appeared in person
Counsel for the Respondent: Mr S Gageler with Ms R M Henderson
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 5 November 2001
END QUOTE
Again;
4 HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/s353.html" Section
353 (1) of HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/" the Act provides that
"[t]he validity of any election or return may be disputed by petition addressed to the Court
of Disputed Returns and not otherwise". Under HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/s354.html" s 354 (1) the
High Court of Australia is to be the Court of Disputed Returns and is to have jurisdiction
either to try a petition or refer it for trial to the Federal Court of Australia.
5 In my view, the effect of those provisions is to provide that the only method whereby the
validity of the Senate election to be held on 10 November 2001 can be disputed or called in
question is by means of a petition to the High Court after the election. Even if this proceeding
were expedited to the extent of a final hearing before Saturday, no order could be made
restraining the holding of the election on the ground that the election would be invalid. I cannot
perceive any other basis upon which the Court would intervene in the holding of the election.
The issue of Australian citizenship
http://www.aec.gov.au/_content/What/media_releases/1998/sep/franchise.htm
The Franchise ‘Right to Vote’ Timetable

16 September 1998
On October 3 over 12 million Australians will be eligible to vote in the 1998 federal election.
In Australia, citizens have the right and responsibility to enrol and vote when they each the age of
eighteen years. In fact is it compulsory to do so.
But is hasn’t always been so - compulsory enrolment wasn’t introduced until 1911 and
compulsory voting wasn’t introduced until 1924.

Part 2 Page 18
For one quarter of the history of white settlement in Australia nobody voted, and this was for the
simple fact that there were no parliaments to vote for.
The first parliamentary elections were in 1843 for the New South Wales Legislative
Council. But this was an election that not everyone could vote in – only men with land
valued at 200 pounds or a house worth 20 pounds annually had the right to vote.
For the rest of the century following this election, and even for a time before, there were
long struggles over who could vote and what they could vote for. These movements to
increase the franchise gained notable victories in the years following the first election in
Australia.
In 1856 the right to vote was granted to all male British subjects over the age of 21 in South
Australia. The other States followed in the years between 1857 and 1896.
South Australia again led the way when in 1894 women over 21 were given the right to
vote. The other States granted women this right in the years between 1899 and 1908.
By 1902 most men and women were able to vote at federal elections. However, what were
referred to as ‘Aboriginal natives’ of Australia, Asia, Africa or the Pacific Islands were
excluded from enrolment and voting.
In 1903 the first federal election under federal law was held with a 46.86% voter turnout. In
1925 the first federal election with compulsory voting was held with 91.31% voter turnout.
It was 1949 when Aboriginal people were given the right to enrol and vote at federal
elections, and then only as long as they were entitled to enrol for State elections or had
served in the defence forces. In 1962 voluntary enrolment and voting at federal elections
was extended to all Aboriginal people.
In 1973 the qualifying age for enrolment, voting and candidature for all federal elections
was lowered from 21 to 18.
It was in 1984 that enrolment and voting were made compulsory for Aboriginal people.
It was also in 1984 that the qualifications to be eligible to vote was changed to Australian
citizenship. Now the only non-Australian citizens entitled to enrol and vote are those British
subjects who were on the electoral roll on 25 January 1984, the time at which the eligibility
changed.
One of the first obstacles the Commonwealth Director of Public Prosecutions has is to prove that I
am an “Australian citizen” within the meaning as referred to by the Framers of the Constitution,
as to poses the right to vote in federal elections, rather then to whatever is made out to be by the
Federal legislation. If in fact I am not an “Australian citizen”, as to exercise any political powers
such as “franchise” then it is irrelevant if the election was constitutionally valid or not (as this is
also in contest) as without political right to vote there can be no jurisdiction being invoked for this
Court to entertain any charges against me.
“Citizenship” is used only once in the Constitution as the draft had other references to
“citizenship” removed as to avoid misconceptions as to the constitutional powers or the lack
thereof by the Federal Parliament. (Hansard records Constitutional Convention Debates 1891,
1897 and 1898)
The terms “citizen of the Commonwealth.”, “Australian citizen”, federal citizen”, “State citizen”
were all used in an interchanging set of words as to mean “subject of the Queen”. This as after all
any person within the realm of the queen (King) is subject to the laws of the British Parliament. It
does not matter if they were ‘aliens”, “natural born subjects” or “naturalized subjects”, as they
were/are all subject to the laws enacted by the Parliaments under the Imperial powers.
The meaning of a word or words can they be altered because of international perceptions, etc.;
Al-Kateb v Godwin [2004] HCA 37, 6-8-2004

Part 2 Page 19
66. Most of the rules HYPERLINK "http://www.austlii.edu.au/cgi-
bin/disp.pl/au/cases/cth/high%5fct/2004/" \l "fn63" [64] now recognised as rules of
international law are of recent origin. If Australian courts interpreted the Constitution by
reference to the rules of international law now in force, they would be amending the
Constitution in disregard of the direction in s 128 of the Constitution. Section 128 declares
that the Constitution is to be amended only by legislation that is approved by a majority of
the States and "a majority of all the electors voting". Attempts to suggest that a rule of
international law is merely a factor that can be taken into account in interpreting the
Constitution cannot hide the fact that, if that is done, the meaning of the Constitution is
changed whenever that rule changes what would otherwise be the result of the case. The
point is so obvious that it hardly needs demonstration. But a simple example will suffice to
show the true character of what is done if courts take a post-1900 rule of international law
into account. Immediately before the rule was recognised, our Constitution had meanings
that did not depend on that rule. Either the rule of international law has effect on one or
more of those meanings or it has no effect. If it has an effect, its invocation has altered the
meaning of the Constitution overnight. As a result, a court that took the rule into account
has amended the Constitution without the authority of the people acting under s 128 of the
Constitution. It has inserted a new rule into the Constitution. Take this case. The issues are
whether ss 189, 196 and 198 are laws with respect to aliens or are exercises by the
Parliament and not the federal courts of the judicial power of the Commonwealth. If this
Court had to take a rule of international law into account in interpreting those powers, the
rule would either confirm what was already inherent in the powers or add to or reduce
them. If the international rule is already inherent in the power it is irrelevant. If it is not, its
invocation alters the constitutional meaning of "aliens" or "judicial power of the
Commonwealth" or both.
67. Many constitutional lawyers - probably the great majority of them - now accept that
developments inside and outside Australia since 1900 may result in insights concerning
the meaning of the Constitution that were not present to earlier generations. Because of
those insights, the Constitution may have different meanings from those perceived in
earlier times. As Professor Ronald Dworkin has often pointed out, the words of a
Constitution consist of more than letters and spaces. They contain propositions. And,
because of political, social or economic developments inside and outside Australia, later
generations may deduce propositions from the words of the Constitution that earlier
generations did not perceive. Windeyer J made that point persuasively in Victoria v The
Commonwealth HYPERLINK "http://www.austlii.edu.au/cgi-
bin/disp.pl/au/cases/cth/high%5fct/2004/" \l "fn64" [65] . But that is a very different
process from asserting that the Constitution must be read to conform to or so far as
possible with the rules of international law. As I earlier pointed out, reading the
Constitution up or down to conform to the rules of international law is to make those rules
part of the Constitution, contrary to the direction in s 128 that the Constitution is to be
amended only in accordance with the referendum process.
68. The issue in Polites HYPERLINK "http://www.austlii.edu.au/cgi-
bin/disp.pl/au/cases/cth/high%5fct/2004/" \l "fn65" [66] shows what would be the
effect of reading the Constitution to conform with the rules of international law. It was
arguably a rule of international law in 1945 that aliens could not be compelled to serve in
the military forces of a foreign state in which they happened to be. Whether or not such a
rule existed HYPERLINK "http://www.austlii.edu.au/cgi-
bin/disp.pl/au/cases/cth/high%5fct/2004/" \l "fn66" [67] , this Court refused to read the
constitutional powers with respect to "defence" HYPERLINK
"http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high%5fct/2004/" \l "fn67" [68]
and "aliens" HYPERLINK "http://www.austlii.edu.au/cgi-
bin/disp.pl/au/cases/cth/high%5fct/2004/" \l "fn68" [69] as subject to such a rule. If the

Part 2 Page 20
Court had accepted the argument of the plaintiff in Polites, the international law rule
would have become a constitutional rule contrary to s 128 of the Constitution.
69. Failure to see the difference between taking into account political, social and economic
developments since 1900 and taking into account the rules of international law is the error
in the approach of those who assert that the Constitution must be read in conformity with
or in so far as it can be read conformably with the rules of international law. Rules are
specific. If they are taken into account as rules, they amend the Constitution. That
conclusion cannot be avoided by asserting that they are simply "context" or elucidating
factors. Rules are too specific to do no more than provide insights into the meanings of the
constitutional provisions. Either the rule is already inherent in the meaning of the
provision or taking it into account alters the meaning of the provision. No doubt from time
to time the making or existence of (say) a Convention or its consequences may constitute a
general political, social or economic development that helps to elucidate the meaning of a
constitutional head of power. But that is different from using the rules in that Convention
to control the meaning of a constitutional head of power. Suppose the imposition of tariffs
is banned under a World Trade Agreement. If that ban were taken into account - whether
as context or otherwise - in interpreting the trade and commerce power HYPERLINK
"http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high%5fct/2004/" \l "fn69"
[70] , it would add a new rule to the Constitution. It would require reading the power to
make laws with respect to trade and commerce as subject to the rule that it did not extend
to laws that imposed tariffs. Such an approach, in the words of Dixon J, cannot be
"countenanced" HYPERLINK "http://www.austlii.edu.au/cgi-
bin/disp.pl/au/cases/cth/high%5fct/2004/" \l "fn70" [71] .
Again;
If this Court had to take a rule of international law into account in interpreting those
powers, the rule would either confirm what was already inherent in the powers or add to or
reduce them. If the international rule is already inherent in the power it is irrelevant. If it is
not, its invocation alters the constitutional meaning of "aliens" or "judicial power of the
Commonwealth" or both.
The point is that albeit International law of late cannot be used to determine the powers and
limitations of constitutional provisions, International law as existing at the time of Federation can
be used to explain the intentions of the Framers, this, as the Framers themselves were debating the
issue of how it applied under international law. Further, International law provisions that came
after the Federation can not be applied to expand or otherwise alter the true intentions of the
Framers of the Constitution but may be an aid to the scope of legislation passed since Federation.
As such, it does not impinge upon constitutional provisions at all, but is to be considered as to
what was applicable at the time of constitutional valid legislated provisions how they could be
applicable within the framework of the Constitution.
For example, the issue of conservation;
Constitution Convention Debates;
Sub-clause 27 (River navigation with respect to the common purposes of two or more states
or parts of the commonwealth), 689. Amendment by Sir Samuel Griffith to provide for the
conservation of water, 690; withdrawn, and sub-clause agreed to, 692.

Mr. MCMILLAN: There is another question which, to a certain extent, I think is
connected with my contention in favour of a strong central government. There is in the
centre of this great continent, which you may call Central Australia, a large area of land that
adjoins three or four colonies. From its peculiar position, from the smallness of its rainfall, it
Part 2 Page 21
will have to be dealt with in the future separately, from the other portions of Australia. It is
not likely with an enterprising people such as we have in these colonies, with every obstacle
going down before the race to which we belong that we shall allow the and wastes of the
centre of this continent to remain as they are for many years to come. There is no doubt that
a system of conservation of water and irrigation must be introduced into that great tract, and
if that is done at all it must be done by a united Australia. Consequently there should be
some machinery in the central government by which the country in the centre of this
continent maybe dealt with differently from other parts of the continent.
See Section 100 of the Constitution that prohibits to deny “reasonable use” of water. What the
framers then discussed was that trade along the rivers (navigation, etc) required the
Commonwealth to regulate the use of water drawn from it, but it could not deny “reasonable use’
of water. What “reasonable use” stands for was to be assessed by the inter State Commission.
However, the general “conservation” of water was held to be a State issue!
To be able to consider if the Court can or cannot invoke jurisdiction, it requires to ascertain if the
subject matter of alleged failure to comply with Commonwealth law (Section 245 of the
Commonwealth Electoral Act 1918) in fact is applicable. After all, if the relevant provision is not
applicable then the Commonwealth Director of Public Prosecutions is pursuing a vexatious
charges and the Court cannot entertain the charges or either one of them. .
Mr. THYNNE:
The union of these colonies must take place in either one or two ways, namely, either by a
unification under one all-powerful parliament, or by a federation which gives to the central
federal parliament certain limited powers and reserves to the other parliaments all other
powers. As I think we may be in danger of overlooking some of the first principles
connected with federation, I may be pardoned if I briefly define some of the characteristics
of a federation. I shall quote from Mr. Dicey's recent work, which is very clear in its
language. He says:
One of the characteristics of a federation is that the law of the constitution must be
either legally immutable or else capable of being changed only by some authority above
and beyond the ordinary legislative bodies, whether federal or state legislatures,
existing under the constitution.
Australian Agricultural Co Ltd. v F.E.D.F.A of Australasia (1913) 17 CLR 261 and 278
“The oath of a justice of this court is ' to do right to all manner of people according to law'
Our sworn duty is to the law itself and to the organic nature of the constitution first of all. If,
then, we find the law to be plainly in conflict with what we or any of our predecessors
errornously thought it to be, we have, as I conceive no right to choose between giving
effect to the law, and maintaining an incorrect interpretation, It is not, in my opinion,
better that the court should be persistently wrong than that it should be ultimately
right..
Whatever else may be said with respect to previous decisions - and it is necessary here to
consider the principals upon which a court should act in particular cases - so much at least
emerges as is undoubtedly beyond challenge, that where a former decision is clearly wrong,
and there are no circumstances countervailing the primary duty of giving effect to the law as
the court finds it, the real opinion of the court should be expressed.”

Part 2 Page 22
It is a matter of fact that I was issued with a “Certificate of Australian Citizenship” No.
ME9401317C on the 28 th day of March 1994. I do not believe that the Commonwealth Director
of Public Prosecutions contest the issue of this certificate.
The certificate states;
QUOTE
COMMONWEALTH OF AUSTRALIA
Australian citizenship Act 1948
Certificate of Australian Citizenship
GERRIT HENDRIK SCHOREL

Born on 7 th June 1947
having applied for a Certificate of Australian Citizenship, having satisfied the conditions
prescribed by the Australian Citizenship Act 19448 for the grant of such Certificate
and having undertaken to fulfil the responsibilities of a citizen.
I the Minister for Immigration and Ethnic Affairs,

Grant this Certificate of Australian citizenship to the abovenamed applicant who is
an Australian citizen on and after 28 th March 1994.
Issued by the authority

Of the Minister
For Immigration and
Ethnic Affairs.
END QUOTE
By marriage, on 28 March 2001, I became Gerrit Hendrik Schorel-Hlavka
Talbot v. Janson, 3 U.S. 133 (1795)
Yet, it is to be remembered, and that whether in its real origin, or in its artificial state,
allegiance, as well as fealty, rests upon lands, and it is due to persons. Not so, with
respect to Citizenship, which has arisen from the dissolution of the feudal system and is a
substitute for allegiance, corresponding with the new order of things. Allegiance and
citizenship, differ, indeed, in almost every characteristic. Citizenship is the effect of
compact; allegiance is the offspring of power and necessity. Citizenship is a political tie;
allegiance is a territorial tenure. Citizenship is the charter of equality; allegiance is a
badge of inferiority. Citizenship is constitutional; allegiance is personal. Citizenship is
freedom; allegiance is servitude. Citizenship is communicable; allegiance is repulsive.
Citizenship may be relinquished; allegiance is perpetual. With such essential
differences, the doctrine of allegiance is inapplicable to a system of citizenship; which it
can neither serve to controul, nor to elucidate. And yet, even among the nations, in
which the law of allegiance is the most firmly established, the law most pertinaciously
enforced, there are striking deviations that demonstrate the invincible power of truth,
and the homage, which, under every modification of government, must be paid to the
inherent rights of man.
And
These are tacit acknowledgments of the right of expatriation, vested in the individuals; for,
though they are instances of adopting, not of discharging, subjects; yet, if Great Britain
would (ex gratia) protect a Russian naturalized by service, in her fleet, it is obvious that she
cannot do so without recognizing his right of expatriation to be superior to the Empress's
Part 2 Page 23
right of allegiance. But it is not only in a negative way, that these deviations in support of
the general right appear. The doctrine is, that allegiance cannot be due to two
sovereigns; and taking an oath of allegiance to a new, is the strongest evidence of
withdrawing allegiance from a previous, sovereign.
And
The power of naturalizing has been vested in several of the state governments, and it
now exists in the general government; but the power to restrain or regulate the right of
emigration, is no where surrendered by the people; and it must be repeated, that, what
has not been given, ought not to be assumed. It may be said, however, that such a
power is necessary to the government, and that it is implied in the authority to regulate
the business of naturalization. In considering these positions, it must be admitted, that
although an individual has a right to expatriate himself, he has not a right to seduce
others from their country. Hence, those who forcibly, or seductively, take away a
citizen, commit an act, which [p*143] forms a fair object of municipal police; and a
conspiracy or combination, to leave a country, might, likewise be properly guarded
against. Such laws would not be an infraction of the natural right of individuals; for,
the natural rights of man are personal; he has no right to will for others, and he does
so, in effect, whenever he moves the mind of another to his purpose, by fear, by fraud,
or by persuasion.
And
But naturalization and expatriation are matters of internal police; and must depend
upon the municipal law, though they may be illustrated and explained by the
principles of general jurisprudence. It is true, that the judicial power extends to a
variety of objects; but the Supreme Court is only a branch of that power; and depends
on Congress for what portion it shall have, except in the cases of ambassadors, &c.
particularly designated in the constitution. The power of declaring whether a citizen
shall be entitled in any form to expatriate himself, or, if entitled, to prescribe the form,
is not given to the Supreme Court; and, yet, that power will be exercised by the court,
if they shall decide against the expatriation of Captain Talbot. Let it not, after all, be
understood, that the natural, loco-motive, right of a free citizen, is independent of
every social obligation. In time of war, it would be treason to migrate to any enemy's
country and join his forces, under the pretext of expatriation. 1 Dall. Rep. 53, and, even
in time of peace, it would be, reprehensible (say the writers on the law of nature and
nations) to desert a country labouring under great calamities. So, if a man acting
under the obligations of an oath of office, withdraws to elude his responsibility, he
changes his habitation, but not his citizenship. It is not, however, private relations, but
public relations; private responsibility, but public responsibility; that can affect the
right: for, where the reason of the law ceases, the law itself must, also, cease. There is
not a private relation, for which a man is not as liable by local, as by natural,
allegiance;--after, as well as before, his expatriation: He must take care of his family,
he must pay his debts, wherever he resides; and there is no security in restraining
emigration, as to those objects, since, with respect to them, withdrawing is as effectual,
as expatriating. Nor is it enough to impair the right of expatriation, that other nations are at
war; it must be the country of the emigrant. No nation has a right to interfere in the interior
police of another: the rights and duties of citizenship, to be conferred, or released, are matter
of interior police; and yet, if a foreign war could affect [p*145] the question, every time that
a fresh power entered into a war, a new restraint would be imposed upon the natural rights
of the citizens of a neutral country; which, considering the constant warfare that afflicts the
world, would amount to a perpetual controul. But the true distinction appears to be this:--
The citizens of the neutral country may still exercise the right of expatriation, but the
belligerent power is entitled to say, "the act of joining our enemies, flagrante bello, shall not
be a valid act of expatriation." By this construction, the duty a nation owes to itself, the
sacred rights of the citizen, the law of nations, and the faith of treaties, will harmonize,
Part 2 Page 24
though moving in distinct and separate courses. To pursue the subject one step further: A
man cannot owe allegiance to two sovereigns. 1Bl. Com. He cannot be citizen of two
republics. If a man has a right to expatriate, and another nation has a right and
disposition to adopt him, it is a compact between the two parties, consummated by the
oath of allegiance. A man's last will, as to his citizenship, may be likened to his last will,
as to his estate; it supersedes every former disposition; and when either takes effect,
the party, in one case, is naturally dead, in the other, he is civilly dead;--but in both
cases, as good Christians and good republicans, it must be presumed that he rises to
another, if not to a better, life and country. An act of expatriation, likewise, is
susceptible of various kinds of proof. The Virginia law has selected one, when the state
permits her citizens to depart; but it is not, perhaps, either the most authentic, or the
most conclusive that the case admits. It may be done obscurely in a distant county
court; and even after the emigrant is released from Virginia, to what nation does he
belong? He may have entered no other country, nor incurred any obligation to any
other sovereign. Not being a citizen of Virginia, he cannot be deemed a citizen of the
United States. Shall he be called a citizen of the world; a human balloon, detached and
buoyant in the political atmosphere, gazed at wherever he passes, and settled wherever
he touches? But, on the other hand, the act of swearing allegiance to another sovereign,
is unequivocal and conclusive; extinguishing, at once, the claims of the deserted, and
creating the right of the adopted, country. Sir William Blackstone, therefore, considers it
as the strongest, though an ineffectual, effort to emancipate a British subject from his
natural allegiance; and the existing constitution of France declares it expressly to be a
criterion of expatriation. The same principle operates, when the naturalization law of the
United States provides, that the whole ceremony of initiation shall be performed in the
American courts; and if it is here considered as the proof of adoption, shall it not be
considered, also, as the test of expatriation? If America [p*146] makes citizens in that way,
shall we not allow to other nations, the privilege of the same process? In short, to admit that
Frenchmen may be made citizens by an oath of allegiance to America, is, virtually, to admit,
that Americans may be expatriated by an oath of allegiance to France. After this discussion
of principles, forming a necessary basis for the facts in this case, it is insisted, 1st, That
Talbot was a naturalized citizen of the French Republic at the time of receiving a
commission to command the privateer, and of capturing the Magdalena. He left this country
with the design to emigrate; and the act of expatriation must be presumed to be regular,
according to the laws of France, since it is certified by the municipality of Point a Pitre, by
the French Consul, and by the Governor of Guadaloupe. 2d, That Redick was also, a
naturalized citizen of the French Republic, when he purchased the vessel, and received a
commission to employ her as a privateer.
And
Ballard was a citizen of Virginia, and also of the United States.
Within the united States of America a person granted naturalization is also granted citizenship,
where as the Commonwealth of Australia Constitution Act 1900 (UK) does not provide for this.
Section 51(xix) provides for “naturalization”.
As already extensively placed before the magistrates in previous proceedings (upon which I rely
before this Court also) some of the “Colonies” (now States) naturalized “aliens” and others didn’t
however each and every Colony did have legislation in regard of citizenship and the rights to
franchise.

Part 2 Page 25
The Hansard records of the 2 March and 3 March 1898 Constitutional Convention Debates
made clear that “naturalization” powers would be transferred from the Colonies to the newly to be
formed Commonwealth of Australia, as it would be approved by the British Parliament but
“CITIZENSHIP” legislative powers would be retained by the States in the newly formed
Commonwealth of Australia.
Mr Quick proposed to give the Commonwealth of Australia constitutional powers to

define/declare “CITIZENSHIP” but this was defeated/refused by the Delegates!
I took occasion to indicate that in creating a federal citizenship, and in defining the
qualifications of that federal citizenship, we were not in any way interfering with our
position as subjects of the British Empire. It would be beyond the scope of the
Constitution to do that.
Therefore, even if the amendment of Mr Quick had succeeded it still was not intended to give any
legislative powers to the commonwealth of australia to interfere with the rights of any person as a
British subject.
Hansard 2-3-1898 Constitution Convention Debates;
Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that we
are all alike subjects of the British Crown.
Dr. QUICK.-If we are to have a citizenship of the Commonwealth higher, more

comprehensive, and nobler than that of the states, I would ask why is it not implanted in the
Constitution? Mr. Barton was not present when I made my remarks in proposing the clause.
I then-anticipated the point he has raised as to the position we occupy as subjects of the
British Empire. I took occasion to indicate that in creating 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 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 nothing unconstitutional, nothing contrary to our instincts as British subjects, in
proposing to place power in this Constitution to enable the Federal Parliament to deal with
the question of federal citizenship. An objection has been raised in various quarters-as by
the honorable and learned members (Mr. O'Connor and Mr. Wise)-to the effect that we
ought to define federal citizenship in the Constitution itself. I have considered this matter
very carefully, and it has seemed to me that it would be most difficult and invidious, if not
almost impossible, to frame a satisfactory definition. There is in the Constitution of the
United States of America a cast-iron definition of citizenship, which has been found to
be absolutely unworkable, because, among other things, it says that a citizen of the
United States shall be a natural-born or naturalized citizen within the jurisdiction of
the United States, and it has been found that that excludes the children of citizens born
outside the limits of this jurisdiction. That shows the danger of attempting definitions,
and although I have placed a proposed clause defining federal citizenship upon the
notice-paper, the subject, seems to me surrounded with the greatest difficulty, and no
doubt the honorable and learned members (Mr. Wise, Mr. O'Connor, and Mr. Symon)
would be the first to attack any definition, and would be able to perforate it. In my
opinion, it would be undesirable to implant a cast-iron definition of citizenship in the
Constitution, because it would be better to leave the question more elastic, more open
to consideration, and more yielding to the advancing changes and requirements of the
times.

Part 2 Page 26
Mr. SYMON.-I agree with the honorable member, and I also think it is unlikely that the
Commonwealth will seek to derogate from it, but I will not place a power in the hands of the
Commonwealth which will enable them to derogate from it, and if that is not done it will be
merely a dead letter. Is there any citizen of the Commonwealth who is not already a citizen
of the state? State citizenship is his birthright, and by virtue of it he is entitled to the
citizenship of the Commonwealth. When you have immigration, and allow different
people to come in who belong to nations not of the same blood as we are, they become
naturalized, and thereby are entitled to the rights of citizenship.
Sir EDWARD BRADDON.-They are citizens if they are British subjects before they
come here.
Mr. SYMON.-That is a point I do not wish to deal with. But they become citizens of the
states, and it is by virtue of their citizenship of the states that they become citizens of
the Commonwealth. Are you going to have citizens of the state who are not citizens of
the Commonwealth?
Mr. KINGSTON.-In some states they naturalize; but they do not in others.
Mr. WALKER.-Is not a citizen of the state, ipso facto, a citizen of the
Commonwealth?
And
Mr. SYMON.-The honorable and learned member is now dealing with another matter.
Would not the provision which is now before us confer upon the Federal Parliament the
power to take away a portion of this dual citizenship, with which the honorable and learned
member (Dr. Quick) has so eloquently dealt? If that is the case, what this Convention is
asked to do is to hand over to the Federal Parliament the power, whether exercised or not, of
taking away from us that citizenship in the Commonwealth which we acquire by joining the
Union. I am not going to put that in the power of any one, and if it is put in the power of the
Federal Parliament, 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 of whether 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 or
diminished by the Federal Parliament! When we declare-"Trust the Parliament," I am
willing to do it in everything which concerns the working out of this Constitution, but I am
not prepared to trust the Federal Parliament or anybody to take away that which is a leading
inducement for joining the Union.
And
Mr. OCONNOR.-I have said that I do not see that such a trust in the Federal Parliament
would be effective. I sympathize with the honorable member's view, but I think it will be
carried out by some kind of definition of citizenship, and I was pointing out the only aspect
in which it appears to me it might be desirable to have some such definition, and that is, you
are creating new rights to citizens of the Commonwealth as citizens of the Commonwealth
in regard to your courts. You establish courts for the Commonwealth, and every citizen of
the Commonwealth is entitled to the use of those courts.
Mr. HIGGINS.-Who is he?

Part 2 Page 27
And
Mr. GLYNN (South Australia).-I shall have to oppose Dr. Quick's amendment, although I
would really go further than he intends. His object is to have a common citizenship, and he
proposes to define that in a proposed new clause, 120A, which reads as follows:-
All persons resident within the Commonwealth, being natural-born or naturalized subjects
of the Queen, and not under any disability imposed by the Parliament, shall be citizens of
the Commonwealth;
and he now wants to give power to Parliament to vary that subsequently.
Mr. ISAACS.-It is not clause 120A that he is proposing now.
Mr. HIGGINS.-It is his amendment in clause 52-to insert "Commonwealth citizenship"

as a new sub-section.
Mr. GLYNN.-I am quite aware of that, but what I want to understand is whether Dr.
Quick will propose the insertion of clause 120A, and also put it in the power of the
Parliament to vary the Commonwealth citizenship under clause 52? That is the point about
which I am doubtful. But I desire to point out that Dr. Quick is not going as far as they have
gone in America or Germany. There is a common citizenship both of the Commonwealth
and of the states in America. Citizenship of the Commonwealth carries with it citizenship
of the states, and the Constitution provides that immunities and privileges enjoyed by the
citizens of a particular state shall be equally shared, when in that state, by the citizens of all
the other states. Now, the German Constitution makes a declaration that there must be a
common citizenship. It does not state that the Parliament of Germany will have the power
of providing for a citizenship of the empire, but that there must be a common citizenship of
the whole empire, and that the privileges which are given in one part of the empire would
apply right through the whole empire. That is to say, there is a Commonwealth citizenship
and a state citizenship running the one with the other-a perfect equality of rights. All that is
done in Germany is that Article 3 of the Imperial Constitution declares that there shall be a
common citizenship for all Germany, and that the rights of the individual citizens of any
state must be extended to the individual citizens of any other state as long as they come
within the jurisdiction of the former state; but the German Constitution also provides that
Parliament-and here is the distinction-may define what the conditions of that common
citizenship are to be. The Constitution declares that there must be a common citizenship,
but it leaves the determination of the particular terms of that citizenship to the Parliament.
That is different from the proposal of Dr. Quick.
And
[start page 1761]
Mr. KINGSTON.-It was in the Bill.
Mr. OCONNOR.-There is no portion of the Bill which gives any right of citizenship, or
points out what citizenship is.
Mr. HIGGINS.-The word "citizen " occurred in clause 110, although it is now struck
out.

Part 2 Page 28
And
Mr. OCONNOR.-The words in clause 110 do not define any right of citizenship; they
prevent certain restrictions upon it. I would point out to Dr. Quick that he is proposing to
give a power to regulate or describe rights of citizenship, when we really do not know at
present what is meant by a citizen. I confess I do not know what the honorable and learned
member means by that term. Does he mean only the political rights which you give to every
inhabitant of a state who is qualified to vote, or does he go beyond that, as the American
decisions have gone, and describe every person who is under the protection of your laws as
a citizen? The citizens, the persons under the protection of your laws, are not the only
persons who are entitled to take part in your elections or in your government, but every
person who resides in your community has a right to the protection of your laws and to the
protection of the laws of all the states, and has the right of access to your courts. If you are
going to define citizenship for the purpose of giving these rights, you must say clearly what
you mean by citizenship. You leave it to the Federal Parliament to say what citizenship is;
and I think there is a great deal in what Mr. Glynn says, that we must not hand over to the
Federal Parliament the power to cut down the rights the inhabitants of these states have at
the present time. If we do not know what you mean by citizenship-
Mr. ISAACS.-Commonwealth citizenship.
Mr. OCONNOR.-Exactly. But if we do not know what you mean by citizenship-whether

you mean to restrict it to political rights or to the right of protection under your laws, which
every person, whether a naturalized subject or a person for the time being resident in one of
these communities, possesses-we may drive the Federal Parliament into some difficulty, in
which it is not at all unlikely that some cutting down of what we believe to be the rights of
citizenship may take place. I would point out that under the Bill the power of dealing
with aliens and immigration gives an abundant right to the Commonwealth to protect
itself, and, of course, the right of defining citizenship will have to be exercised with due
regard to any laws which might be made regarding the position of aliens. I would ask
my honorable friend (Dr. Quick) to say if he has considered how far he means the Federal
Parliament to go in the definition of citizenship, and what he means by citizenship?
Because, unless we have a clear idea of that, it seems to me that we are handing over to the
Federal Parliament something which is vague in the extreme, and which might be misused.
And
Mr. SYMON.-Very likely not. What I want to know is, if there is anybody who will come
under the operation of the law, so as to be a citizen of the Commonwealth, who would not
also be entitled to be a citizen of the state? There ought to be no opportunity for such
discrimination as would allow a section of a state to remain outside the pale of the
Commonwealth, except with regard to legislation as to aliens. Dual citizenship exists, but
it 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 is meant 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. That does not affect the operation of this clause at all. But if we introduce this
clause, it is open to the whole of the powerful criticism of Mr. O'Connor and those who say
that it is putting on the face of the Constitution an unnecessary provision, and one which we
do not expect will be exercised adversely or improperly, and, therefore, it is much better to
be left out. Let us, in dealing with this question, be as careful as we possibly, can that we do
not qualify the citizenship of this Commonwealth in any way or exclude anybody [start
Part 2 Page 29
page 1764] from it, and let us do that with precision and clearness. As a citizen of a state I
claim the right to be a 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 of depriving me of citizenship. I put this only as an argument, because no one
would anticipate such a thing, but the Commonwealth Parliament might say that nobody
possessed of less than £1,000 a year should be a citizen of the Federation. You are putting
that power in the hands of Parliament.
Mr. HIGGINS.-Why not?
Mr. SYMON.-I would not put such a power in the hands of any Parliament. We must
rest this 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 regard to one particular set of people who are subject to disabilities, as aliens, and
so on. Subject to that limitation, we ought not, under this Constitution, to hand over our
birth right as citizens to anybody, Federal Parliament or any one else, and I hope the
amendment will not be accepted.
And
Mr. BARTON.-If the honorable member's exclamation means more than I have
explained, then the best thing to do is to confide to the Commonwealth the right of dealing
with the lives, liberty, and property of all the persons residing in the Commonwealth,
independently of any law of any state. That is not intended, but that is what the expression
"Trust the Federal Parliament" would mean unless it was limited by the consideration I have
laid down. I am sure Dr. Quick will see that he is using a word that has not a definition in
English constitutional law, and which is not otherwise defined in this Constitution. 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 states would
scarcely know whether he was on his head or his heels. Under the Constitution we give
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 of
electors which is really the sum and substance of political liberty, and we have defined that.
If we are going to give the Federal Parliament power to legislate as it pleases with
regard to Commonwealth citizenship, not having defined it, we may be enabling the
Parliament to pass 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
the British Empire. Have we not done enough? We allow them to naturalize aliens. That
is a power 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.

Part 2 Page 30
Mr. BARTON.-Yes; and here we have a totally different position, because the actual
right 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 confided to the Commonwealth. The administration of [start page 1766]
the laws regarding property and personal liberty is still left with the states. We do not
propose to interfere with them in this Constitution. We leave that amongst the reserved
powers of the states, and, therefore, having done nothing to make insecure the rights of
property and the rights of liberty which at present exist in the states, and having also said
that the political rights exercisable in the states are to be exercisable also in the
Commonwealth in the election of representatives, we have done all that is necessary. It is
better to rest there than to plunge ourselves into what may be a sea of difficulties. We do not
know to what extent a power like this may be exercised, and we should pause before we take
any such leap in the dark.
Again;
so on. Subject to that limitation, we ought not, under this Constitution, to hand over our
birth right as citizens to anybody, Federal Parliament or any one else, and I hope the
amendment will not be accepted.
Also
The administration of [start page 1766] the laws regarding property and personal
liberty is still left with the states.
As was made clear by Mr quick;
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 be citizens of a city, citizens of a colony, or citizens
of a Commonwealth, but we would still be, subjects of the Queen.
Therefore, the Constitution never provided any constitutional powers for the Commonwealth of
Australia to legislate as to “CITIZENSHIP”.
As the Commonwealth of Australia was provided with powers within Subsection 51(xix) of the
constitution to “naturalize” “aliens” to become “British nationals” and the Nationalization Act
was enacted after Federation then clearly the powers to naturalize an alien to become a British
national is not diminish. In 1948, the Federal parliament then replaced the Naturalization Act
with the Australian citizenship Act 1948 by this “STEALING” the legislative powers of the States
states in regard of “citizenship” by purporting that there was an “Australian citizenship” as an
Australian nationality.

Part 2 Page 31
Barton J, the parliament cannot give the word a meaning
not warranted by s73 of the Constitution.
Commonwealth v Brisbane Milling Co. Ltd. (1916) 21 C.L.R. 559; A.L.R. 272.
If the Commonwealth of Australia never had any constitutional powers to declare/define

citizenship then what is the meaning of the Certificate of Australian Citizenship realty?
If Australian citizenship is purported to be Australian nationality then this must fail as Subsection
51(xix) provided constitutional powers for the Commonwealth of Australia to “naturalize” aliens
to become British nationals! Without any Section 128 referendum this cannot be changed to some
purported “Australian nationality”.
We either have a Constitution or not! We use it as was intended by the framers of the
Constitution, modified as have been provided for by the successful referendums or we have no
constitution at all and no federation exist!
In view that the British parliament declared Australians to be “foreigners” can this then alter the
application of the constitution, one may ask?
Constitutional law cannot be amended by mere implication but must be amended by appropriate
legislation. In the case of the Commonwealth of Australia Constitution Act 1900 (UK) Section
128 exclude the British Parliament to amend the constitution as it can only be amended by the
consent of the people, as expressed by a Section 128 referendum. Hence, regardless if the British
parliament did or didn’t pass legislation to declare Australians “foreigners” the only way to
resolve the matter was and remains to have the Constitution amended to allow the
Commonwealth of Australia to “naturalize” aliens to become Australian nationals.
The following part of transcript indicates how the High Court of Australia itself is confusing
“citizenship” with “nationality”.
Dang, Ex parte - Re MIMA M118/2001 (18 April 2002)

IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M25 of 2001
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 18 APRIL 2002, AT 10.17 AM
KIRBY J: Your clients were not British subjects.

MR MAXWELL: That is so. If I might move immediately to the question of what
Patterson decided. In our respectful submission, what Patterson decided was this, that
allegiance, not citizenship, is the touchstone for determining alien status.
KIRBY J: There is only one reference to citizenship in the Constitution, is there not, and
that is the disqualification that was considered in Sue v Hill?
MR MAXWELL: Yes, your Honour.
KIRBY J: There is no other reference to the concept and, indeed, we did not have a
Citizenship Act until quite late in the history of the Commonwealth.
MR MAXWELL: One of the critical aspects which comes through clearly in the
judgments, both the dissenting and the majority judgments in Patterson, is the point your
Honour has just adverted to: alien is a concept of our Constitution, citizenship is a concept
of our statute law. Your Honours Justices Gummow and Hayne in the joint judgment put in
Part 2 Page 32
these terms the proposition advanced by the prosecutor in Patterson, namely, at paragraph
[223]:
alienage and citizenship . . . do not occupy the relevant universe of discourse -
That, we would respectfully adopt, though your Honours disagreed in the result, as being the
proposition which the majority did endorse. That is to say, it does not follow that because a
person is a non-citizen he or she is, by definition, an alien because you must be one or the
other.
What Patterson held and why Nolan had to be overruled was that there is a category of non-
citizen non-alien. That is what your Honours held by majority Taylor was. He was not a
citizen and he was not an alien.
GUMMOW J: I should make clear to you I do not regard that matter as closed.
MR MAXWELL: I am indebted to your Honour.
GUMMOW J: It seems to me absolutely fundamental.
MR MAXWELL: It is absolutely fundamental and, in our respectful submission, there can
be no conclusion, with respect, other than that is what this Court found because Mr - - -
GUMMOW J: I am not so sure about that. The Solicitor-General goes into all of this.
MR MAXWELL: Your Honour, we note with some surprise that less than a year after that
decision was handed down, the Commonwealth is inviting this Court to reopen it and
overrule it if it says what we say it says.
GUMMOW J: The question really is whether it should have overruled Nolan. Now, I will
not hold you up.
MR MAXWELL: Your Honour, in our respectful submission, this Court did overrule
Nolan. Four Justices of the Court addressed the question whether it should be overruled and
each of them decided for reasons given that it should and it is no longer the law in this
country, in our respectful submission, and we will go further and say that necessarily Pochi
was at best left under a considerable cloud, if not necessarily overruled by that overruling.
GUMMOW J: It seems to me what I was putting to you really can be put to one side
because you have to go further in this case, and that is the real point.
MR MAXWELL: Indeed, your Honour. Plainly enough - - -
KIRBY J: As I understand your argument, it is that until Taylor there was clear authority
that there was a simple clear criterion for alienage, non-citizen.
MR MAXWELL: Exactly so.
KIRBY J: After Taylor, whatever is the criterion, the base has shifted.
KIRBY J: It did not have to shift further than British subjects to resolve the issue of
Patterson.
MR MAXWELL: That is so.
KIRBY J: But you say, having shifted the basis, a new, stable basis must be found and
therefore this case presents the obligation to find that new, stable basis.
GUMMOW J: And what is the stable basis?
MR MAXWELL: The starting point is that the obligation of allegiance can come into
existence between a person and the Queen of Australia otherwise than by the taking out of
citizenship. The next question is, by what criteria is the establishment of that obligation to
be determined - I am sorry, your Honour?
GAUDRON J: You say "can". Did Patterson go further than say at a certain time it could
come into operation by that method in respect of a certain category of people?
MR MAXWELL: That is so, but - - -
GAUDRON J: Yes. Well, you have to go beyond that to say that since, when? At all
relevant times it has been possible and it continues to be possible?
MR MAXWELL: Your Honour, all I need to establish is that at the date of the relevant
decisions the obligation of allegiance had been assumed by these individuals. It is quite
separate, of course, from the discussion which was necessarily engaged in for Patterson
Part 2 Page 33
about the evolution of the Crown in right of Australia and its separation from Britain. These
are, plainly, individuals who have never been British subjects. This is a different case. But
as his Honour Justice Kirby has put, we will be inviting the Court to explore this category of
non - - -
GUMMOW J: We do not set off on exploration tasks. We respond to submissions and we
are trying to find what your submission is.
MR MAXWELL: Of course, your Honour.
GUMMOW J: You can tantalise us with this notion of a stable basis. The question is: what
is it?
MR MAXWELL: In these cases - - -
GUMMOW J: Bearing in mind that Patterson was, on one view of it, all about the
changing nature of the British Commonwealth, to use that expression.
MR MAXWELL: Your Honour, we put the stable basis on three bases in these cases as set
out in our submission. First, we say that each of these individuals renounced his allegiance
to his country of birth by fleeing from a regime which could not guarantee him protection.
GUMMOW J: How do notions of allegiance work with republican systems of government?
As I understand it, the whole notion of citizenship dates back to the American and French
Revolutions, where they had to replace notions of allegiance which were monarchical with
something else and they devised the notion of citizenship. These gentlemen never owed
allegiance to any sovereign, did they?
MR MAXWELL: No, though your Honour will - - -
KIRBY J: Although they would have been born during the reign of Prince Sihanouk.
Cambodia was not a separate colony of France; it was a protectorate. So I think that is
something we would not know without some detail.
GUMMOW J: That is right.
MR MAXWELL: But, your Honour, in our respectful submission, as a matter of principle
this will not turn on whether a person came from a country which was a monarchy or a
republic. The concept of allegiance - - -
GUMMOW J: The point I am trying to make to you is that notions of allegiance come out
of English medieval feudalism. That is where it comes from - monarchical feudalism.
MR MAXWELL: With respect, we fully appreciate that. As your Honours in the lengthy
joint judgment explained, the concept has developed very significantly since the original
notion of personal loyalty to a lord. It became, and it was declared in the Court of Queen's
Bench in the 1880s, as your Honours pointed out, that it changed from a personal obligation
or an obligation to the sovereign in his or her personal capacity to an obligation to the
sovereign in his or her political capacity. That is just one respect in which the discussion
about allegiance in the 21st century is a different discussion from that which it would have
been under more confined notions.
HAYNE J: And it is pointed up by your proposition that each renounced allegiance to the
country of his birth because the regime of the day would not protect him.
HAYNE J: But is allegiance concerned with allegiance to the government? Is it more
abstracted a notion than allegiance to whatever regime is in power?
GAUDRON J: There is a further question of course too and that is, by whose law is this
renunciation to be determined? That was addressed in Sykes and the general principle of
international law is that that is determined by the laws of the country of which the person
was a citizen or to which he or she owed allegiance.
GAUDRON J: So it is not a simple question, I should have thought.
MR MAXWELL: No, and it is not necessary for our argument, with respect, that there
have been no renunciation.
GAUDRON J: Well - - -

Part 2 Page 34
MR MAXWELL: It is not. It happens to be the fact and it makes our cases a fortiori, but
what is the critical question is whether it can be said of the person that he has assumed the
obligation of allegiance and our submission puts it that it - - -
GAUDRON J: And you put that as a one-way traffic as well.
MR MAXWELL: Well, with respect, no we do not. We gratefully accept the analysis of
their Honours in the joint dissenting judgment, which points out that changes in the
relationship of allegiance can occur either by the joint act of the parties to it, the subject and
the sovereign, or by the unilateral act of either, which, apart from anything else, enables us
to put to one side the old notion that allegiance was perpetual and the natural-born subject
could never give it up. The concept of naturalisation scotched that notion 100 years ago. It
can be given up by a formal act. We submit that one would expect to find a parallel notion
of renunciation by conduct, but we accept - and our learned friends say just because you
have renounced your citizenship of another country does not mean you have become a
citizen of Australia. Well, we accept that. We do not assert that the renunciation somewhere
else makes you a subject of the Queen of Australia. There needs to be an act or a course of
conduct of which it can be said that this person enjoys the protection of the Queen of
Australia and owes her obligations of allegiance.
GLEESON CJ: At which stage did your clients cease to owe allegiance to Cambodia or
Vietnam respectively?
MR MAXWELL: At the time they sought refuge in refugee camps or, alternatively, upon
the grant of permanent residence visas to each of them, enabling them to come from the
refugee camp to Australia. At that point, we have argued in our submission that the self-
description as a refugee is the explanation or the manifestation of the renunciation.
GLEESON CJ: They are interesting alternatives, in practice, because if the former is
correct, they would have been in the same situation even if they had been refused visas.
MR MAXWELL: That is so. Again, they were granted visas and that means that - and we
will take your Honours in due course to the findings of fact in the Tribunal in each case -
each of these persons was a refugee at the time and, as I understand it, there is no dispute
about that. We do not say that an application for refugee status was made and determined in
Australia. There is no evidence that that occurred. Nor is there any doubt but that they were
refugees in the sense in which that term is understood - defined in the Convention. Your
Honours will see in the material a question arises before the Tribunal "whether the
protection obligations which Australia owed under the Convention still obtained as at the
date of the Tribunal review?" Held: "No they don't. Conditions have changed in Cambodia
or Vietnam. The protection obligation does not subsist."
To come back to your Honour's question. The assertion of refugee status is the act of
renunciation because it is a statement that, "I cannot rely on the sovereign government of
my country to protect me." Indeed, that language is used in the Convention itself.
GLEESON CJ: Why did they need visas? I wondered if it was because they were aliens.
MR MAXWELL: Well, they otherwise had no right to enter Australia.
GUMMOW J: You seem to be asserting they did. Of course HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/c167/" the Constitution - - -
MR MAXWELL: As a matter of international law - - -
GUMMOW J: Forget about international law, because HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/c167/" the Constitution operated in
some magical way.
MR MAXWELL: No, your Honour. We conceded before Justice Hayne that these people
had not - I think we conceded they were aliens at the point of arrival. We will seek to
qualify that concession by the protection allegiance argument we have made in our reply.
We start with the proposition that Australia owed obligations of protection to these refugees
under the 1951 Convention. At that point there was an acceptance of what is described in
the Refugee Convention in these terms, and it is in the material, a person is, "unable or . . .
unwilling to avail himself of the protection of that country".
Part 2 Page 35
What is helpful in this analysis, in our respectful submission, is what Sir John Salmond, in
the Law Quarterly Review article that we will take your Honours to, and the House of Lords
in Joyce refer to as "the reciprocal obligations of protection by the sovereign to the subject
and allegiance by the subject to the sovereign."
KIRBY J: Could I just ask a factual matter, that is partly a legal matter. Was there any
impediment to your clients becoming naturalised Australian citizens?
MR MAXWELL: Not that I am aware of, your Honour, no. No application was made. At a
certain point they may have, by their criminal convictions, become unable to satisfy the
"good character" requirement.
KIRBY J: Does one draw any inference at all from the fact that in the interval between
their arrival as children and their evictions, that they could have signified their allegiance to
the Queen of Australia and the people of Australia by becoming citizens but omitted, failed,
refused to do so?
MR MAXWELL: In our respectful submission, no. One draws no inference because - and
this comes back to the fundamental point - the assumption of citizenship - we have put this
in terms in the outline - is a sufficient condition of allegiance but it is not a necessary
condition, and that is what Patterson held. If that is correct, then the non-taking out of
citizenship does not disqualify a person from being a subject of the Queen of Australia.
GAUDRON J: But are we not a little bit off the track here? From a constitutional point of
view we are concerned with aliens and non-aliens. At least in the case of persons who are
not and never have been British subjects is it not the case that it is well within the legislative
power of the Parliament to decide and define who are and who are not aliens?
CALLINAN J: That is what Mr Justice Barton said in Ferrando v Pearce.
GAUDRON J: But is that not the case, that it has legislative power to define who are and
who are not aliens?
MR MAXWELL: Yes, but, with respect, to exclude from a statutory definition of aliens -
let me put that differently - to include within a statutory definition of aliens someone who is
not is beyond power.
GLEESON CJ: But if granting a visa to someone produces the result that they are not an
alien, then the entire scheme of the Migration Act 1997 has miscarried, has it not? Its long
title is it is "An Act relating to the entry into, and presence in, Australia of aliens, and the
departure or deportation from Australia of aliens". Visas can be cancelled, can they not?
By the reasoning of the Framers of the Constitution (the Delegates to the Constitution
Conventions) a “subject to the Crown” was anyone who was subjected to the laws of the Crown
regardless if they were aliens or not.
Shaw v Minister for Immigration and Multicultural Affairs

HYPERLINK "http://www.austlii.edu.au/au/cases/cth/high_ct/2003/72.html" [2003] HCA
72
9 December 2003
B99/2002
10. However, contrary to the submissions for the applicant, the result of such a consideration
of his position is his classification as an alien for the purposes of HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/num_act/c167/s51.html" s 51 (xix) of the
Constitution. Much of the applicant's argument proceeded from the premise that, because
the expression "British subject" could be applied to him, he was not an alien. That premise
is flawed. First, "British subject" is not a constitutional expression; it is a statutory
Part 2 Page 36
expression. Secondly, and more fundamentally, if "British subject" was being used as a
synonym for "subject of the Queen", an expression which is found in the Constitution, that
usage would assume that there was at the time of federation, and there remains today, a
constitutional and political unity between the UK and Australia which 100 years of history
denies.
Hansard 2-3-1898 Constitutional Convention Debates

Mr. BARTON.- I did not say that. I say that our real status is as subjects, and that we are
alike subjects of the British Crown.
Mr. MUNRO:
. I am proud of being a citizen of the great British empire, and shall never fail to be
proud of that position.
Mr. HOLDER:
because I take it that the legal bonds which bind us to the mother-country, to the great
British Empire,
Mr. BARTON:
The association of the Queen with the action of the commonwealth is distinct, and is
firmly embedded in the whole bill. If that is done, there can be no association of the idea
of republicanism with this bill.
Mr. BARTON.-Yes; and here we have a totally different position,
because the actual right 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
confided to the Commonwealth.
Dr. QUICK.-
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.
Mr. BARTON.-
We are subjects in our constitutional relation to the empire, not citizens. "Citizens" is an
undefined term, and is not known to the Constitution. The word "subjects" expresses the
relation between citizens of the empire and the Crown.
Sir GEORGE TURNER.-Is a naturalized alien a subject?
Mr. BARTON.-He would be a citizen under the meaning of this clause.

Part 2 Page 37
Sir GEORGE TURNER.-Suppose you say "subject" without definition, would that
include naturalized aliens?
Mr. BARTON.-Yes. Dr. Quick's definition is: Persons resident in the Commonwealth,
either natural-born or naturalized subjects of the Queen, and if they are subject to no
disabilities imposed by the Parliament they shall be citizens of the Commonwealth. Why not
use the word "subject," and avoid the necessity of this definition?
And
Mr. OCONNOR.-Exactly. It has two meanings, but we are only dealing now with the
one meaning-the general meaning. Mr. Isaacs' reference shows the danger that might
be incurred by using the word "citizen," because it might have the restrictive meaning
the last decision imposes. All we mean now is a member of the community or of the
nation, and the accurate description of a member of the community under our
circumstances is a subject of the Queen resident within the Commonwealth."
Mr. SYMON.-A person for the time being under the law of the Commonwealth.
Mr. OCONNOR.-A person for the time being entitled to the benefits of the law of the
Commonwealth.
And
Mr. BARTON (New South Wales).-If it is a fact that citizens, as they are called, of each
state are also citizens of the Commonwealth, there may be some little doubt as to whether
this is not providing for practically the same thing.
Mr. WISE.-No, there may be territories that is what I want to provide for.
Mr. BARTON.-In other portions of the Bill we use the words "parts of the
Commonwealth" as including territories, so that the object of Mr. Wise would be met
by using the words "citizens of every part of the Commonwealth" or "each part of the
Commonwealth."
And
Mr. BARTON.-
We are subjects in our constitutional relation to the empire, not citizens. "Citizens" is
an undefined term, and is not known to the Constitution. The word "subjects"
expresses the relation between citizens of the empire and the Crown.
Sir GEORGE TURNER.-Is a naturalized alien a subject?
Mr. BARTON.-He would be a citizen under the meaning of this clause.
Sir GEORGE TURNER.-Suppose you say "subject" without definition, would that
include naturalized aliens?
Mr. BARTON.-Yes. Dr. Quick's definition is: Persons resident in the Commonwealth,
either natural-born or naturalized subjects of the Queen, and if they are subject to no
disabilities imposed by the Parliament they shall be citizens of the Commonwealth. Why not
use the word "subject," and avoid the necessity of this definition?

Part 2 Page 38
Dr. QUICK.-This definition does not interfere with the term "subject" in its wider relation
as a member of the empire or subject of the Queen.
Mr. BARTON.-No, but the definition of "citizen" as a natural-born or naturalized subject

of the Queen is co-extensive with the ordinary definition of a subject or citizen in America.
The moment be is under any disability imposed by the Parliament be loses his rights.
And
Dr. QUICK.-The regulation would have to specify the ground of disability.
Mr. BARTON.-Yes; but my honorable friend says not under any disability imposed by
the Parliament. Would not the difficulty be that if he were under any slight disability for
regulative purposes, all his rights of citizenship under the Commonwealth would be lost?
Mr. KINGSTON.-There might be a special disability on minors.
Mr. BARTON.-That might be one of the disabilities. Of course here the disabilities as
to minors would not matter much, but I would like to put this consideration to Dr. Quick,
that if we use the term "subject," or a person subject to the laws, which is a wider term, we
shall avoid the necessity for a definition of "citizen." You might say a subject or resident
being the subject of the Queen.
And
Mr. SYMON.-There is no man in Australia who is more profoundly versed in

constitutional law than Mr. Isaacs, and he knows that every point and every question has
been the subject of more or less debate and discussion, and will be until the end of time.
The words "subject," "person," and "citizen" can be made subjects of controversy at
all times if occasion requires it. At the same time, it does not affect the principle that
there should be a definition of "citizen," either in the form suggested by Dr. Quick or
by Mr. Barton.
And
Mr. ISAACS (Victoria).-I am afraid that the amendment is far too wide, unless we say
that the disabilities imposed by Parliament may extend to birth and race. This would,
notwithstanding the rights conferred under clause 52, deprive Parliament of the power
of excluding Chinese, Lascars, or Hindoos who happened to be British subjects.
And
Mr. GLYNN.-
I would like to mention, in connexion with what Mr. Isaacs said as to aliens, that this
provision would not interfere in the slightest degree in the way of preventing aliens
from coming in, because it is only when the aliens get inside the Commonwealth that
this provision is to apply to them. The decision of the Privy Council in the case of Ah Toy
v. Musgrove was that an alien had no right to land here, but that decision does not affect
his citizenship after he has landed.
And

Part 2 Page 39
Mr. WISE (New South Wales).-My mind has wavered very much during this debate. I
have come to the conclusion that my original suggestion was wrong, that the best form of
all in which the original amendment could be moved is [start page 1793] that in which it was
proposed by Mr. Symon, and that then no definition such as is suggested by Dr. Quick will
be really required, because, if we allow each state to make its own standard of
citizenship, we shall reserve all the rights of the states, and obviate all the difficulties
contemplated by Mr. Trenwith, by retaining to each state the right to determine the
qualification of its own citizens. And then we will make a provision that is necessary as
part of the Federal Constitution, that when a man has acquired citizenship in one state he
shall be entitled to the right of citizenship in the other states.
And
Dr. COCKBURN (South Australia).-If the word "citizen" simply means resident or
inhabitant, why should we go to all this trouble about it? If it means inhabitant, what is
the use of saying the inhabitant of one state going to another state shall be an
inhabitant of that other state? It seems to me that if you are going to use the word
"citizen" in the sense of being equal to resident or inhabitant, and it is to have no other
meaning such as has always been attached to it, we had better leave out the clause.
And
Mr. OCONNOR (New South Wales).-I would suggest that Mr. Symon should accept the
amendment suggested by Mr. Barton, so that his clause shall read-
Every subject of the Queen resident in any state or part of the Commonwealth shall be
entitled to all privileges and immunities of subjects resident in other states or parts of the
Commonwealth.
I am altogether in favour of the principle of Mr. Symon's amendment; but the word
"citizen" creates a difficulty. If, instead of the word "citizen," we use the words "Every
subject of the Queen resident in a state," it really means the same thing. The meaning to
be given to the word "citizen" in Mr. Symon's amendment is not the narrow limited
meaning of the citizen who can exercise the franchise, but it is the broad general
meaning which the word has been held to have under the United States Constitution. It
has been decided there that the word "citizen" has, [start page 1796] in a general and
wide sense, this meaning:-
In its broad sense the word is synonymous with subject and inhabitant, and is
understood as conveying the idea of membership of the nation, and nothing more.
And
Dr. COCKBURN.-But the present proposal if carried would raise an initial difficulty in
framing special laws. It might be urged that it was necessary to discriminate between
residents who are subjects of the Queen and those who are not, and the amendment
would introduce an element which would give rise to a great deal of trouble in the
future.
Mr. HIGGINS.-You want to keep both classes out.

Part 2 Page 40
Dr. COCKBURN.-We desire always to deal with Asiatics on broad lines, whether
they are subjects of the Queen or not; and in South Australia, and, I believe, other
colonies, those lines of distinction are obliterated. In South Australia we make no
difference between Chinese from Hong Kong and those from other parts of China.
That, I think, is the most effective way of dealing with this matter.
Again;
We are subjects in our constitutional relation to the empire, not citizens. "Citizens" is
an undefined term, and is not known to the Constitution. The word "subjects"
expresses the relation between citizens of the empire and the Crown.
Clearly, the Framers made clear it is not the relationship between a subject and some Queen, but
more significantly the relationship between the subjects as “citizens of the empire and the
Crown.” One must therefore be a citizen of the empire to have a relationship with the Crown.
If one is not a subject of the Crown residing as a citizen in the empire then no relationship exist.
This, the High Court of Australia never addressed as such. It simply sought to bypass this kind of
definition, being it unaware of it all together or not. But, the “Queen of Australia” is no Queen
recognised by the British Crown, or can be Queen of the Empire. It is a fictitious name and title
that can hold no water, so to say, to issue proclamation in that title, as to do so would create a
fictitious appointment not worth the paper it is written upon.
To get a bit of an understanding about “internal affairs” and “external affairs” the following may
be considered;
Dr. COCKBURN: I should like to justify the vote that I shall have to give on this matter,
because it will be rather dissonant with the votes I have been giving throughout the sittings
of the Convention. I shall vote for the clause as it stands, and also for the amendment
intended to be proposed by the hon. member, Mr. Gordon, because I take it to be essential to
federation. It is the very definition of a federation that, as regards external affairs, the
federation shall be one state, and only have one means of communication, and in regard to
internal affairs the federation should be many states-
Mr. GORDON: These are not internal affairs!
Dr. COCKBURN: These are internal affairs, and it is one of the principles of federation
that, in internal affairs, there should be complete autonomy. In local affairs, why do you
want to go outside the state at all? For the alteration of the constitution of a state, why
should you go outside the boundary of that state?
Effectively, “external affairs” referred to in the constitution deals with nations/territories not
within the Commonwealth of Australia and/or under the British parliament. The Delegates did
refer to the “Home Office” when referring to contact with the British government, as it is the
“home” of the Commonwealth of Australia, which exist only because of the States (formally
colonies) being granted Letters Patents to have their own limited self government under British
law.
Mr. BARTON: The hon. member who is in the chair will be able to inform you. He said:
I do not think there is in this Convention a stronger advocate of State rights and State
interests than I am; but still I strongly support the clause as it stands, for it seems to me that
one of the very fundamental ideas of a Federation is that, so far an all outside nations are
Part 2 Page 41
concerned, the Federation shall be one nation, that we shall be Australia to the outside
world, in which expression. I include Great Britain; that we shall speak, if not with one
voice, at all events, through one channel of communication to the Imperial Government; that
is, as it has been put, we shall not have seven voices expressing seven different opinions, but
that Her Majesty's Government in Great Britain shall communicate to Her Majestys
Government in Australia through one channel of communication only.
Again;
Her Majesty's Government in Great Britain shall communicate to Her Majestys

Government in Australia
It is clear that the Framers of the Constitution referred to the one and only person and any
purported title of a legal fiction of “Queen of Australia” cannot amend or purport to amend the
Constitution, or the application of the Constitution.

Mr. BARTON (New South Wales).-The Drafting Committee could not interpret the
intentions of the Convention, excepting in so far as they found them expressed in the
Bill, in the amendments, or in the debates. We have endeavoured to give effect simply
to what the Convention have said and done.
And
Sir RICHARD BAKER (South Australia).-
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 United Australia and create dissatisfaction with our work, it must be evident
that too much care has not been exercised.
Mr. GLYNN (South Australia)[12.35]: I have not the Federal Council Bill before me; but I
believe that that bill contained the words "sailing between the ports of the colonies." The bill
was sent home with those words in it; but her Majesty's advisers at home deliberately
changed the wording of the measure so as to give the Council wider jurisdiction. There was
a limitation in the bill which does not appear in the act, and the Imperial authorities must
have made this alteration for some specific purpose. They could not have accidentally
inserted the words "port of clearance, or." There is no danger of conflict between the laws
of the commonwealth and the Imperial law. The moment a new act is passed in
England which conflicts with any legislation passed by the commonwealth, that act will
to the extent of the difference abrogate the legislation under the constitution of
Australia. At the present time there is never any conflict. Our Marine Board and
navigation acts are not in conflict with the English merchant shipping acts; but they
give us jurisdiction, not to the 3 miles limit, but within Australian waters, as
specifically defined in these acts, that is, between port and port. Without these acts we
should not have this jurisdiction. As I understand the law, it was decided in the case of
the Franconia that, the 3-mile limit only applied in connection with intercolonial
disputes, that limit being arrived at in the first instance because it [start page 247] was
then the range of a cannon shot; and that civil and criminal jurisdiction stopped at
low-water mark. Originally there was no jurisdiction beyond the limits of mean low-
water mark; but that jurisdiction has been extended by legislation, and the Imperial
Part 2 Page 42
authorities deliberately changed words in the Federal Council Bill which would place a
limitation upon the existing jurisdiction as defined by our local acts, so as to amplify it,
and make it apply to any vessel leaving our ports for foreign parts, or coming from
foreign parts to the colonies. They did this deliberately, and in view of the fact that
there was no possibility of conflicting decisions being arrived at under the proposed
constitution, we have no criminal jurisdiction at all, so that if a crime is committed on
board a ship coming to Australia, the criminal will be tried according to the laws of
Great Britain.
We cannot give a sanction to a law

The Hon. E. BARTON:
without imposing some penalty or punishment!
Mr. GLYNN: The hon. and learned gentleman is quite right; but we have only power
to impose such penalties as will operate as sanctions for the civil legislation under
clause 52.
The Hon. E. BARTON: We cannot establish a new criminal offence!
Mr. GLYNN: No, unless it is part of a sanction to enforce the obligation of a civil law.
So that if an offence is committed on board a ship coming to the commonwealth it will
have to be dealt with according to the law of England, not according to the law of the
commonwealth. Seeing that the English authorities deliberately changed the wording
of the Federal Council Bill, although there is no possibility of the legislation of the
colonies clashing with Imperial legislation, because English legislation must abrogate
colonial legislation to the extent of the difference between them, I think we should
accept the words used by the Imperial advisers of her Majesty.
The latter about “abrogating” colonial laws do not apply when it comes to the Commonwealth of
Australia Constitution Act 1900 (UK) in that this provides that amendments of the Constitution
can only be made by a successful section 128 referendum. As such, it excludes powers of the
Imperial government (British Parliament) to amend the Constitution. However, State laws remain
subject to Imperial laws and are abrogated where they are in conflict of Imperial laws.
Again;
They did this deliberately, and in view of the fact that there was no possibility of
conflicting decisions being arrived at under the proposed constitution, we have no
criminal jurisdiction at all, so that if a crime is committed on board a ship coming to
Australia, the criminal will be tried according to the laws of Great Britain.
The Statement;
There is no danger of conflict between the laws of the commonwealth and the Imperial
law. The moment a new act is passed in England which conflicts with any legislation
passed by the commonwealth, that act will to the extent of the difference abrogate the
legislation under the constitution of Australia. At the present time there is never any
conflict. Our Marine Board and navigation acts are not in conflict with the English
merchant shipping acts; but they give us jurisdiction, not to the 3 miles limit, but
within Australian waters, as specifically defined in these acts, that is, between port and
port.

Part 2 Page 43
Is not correct in that while normally the imperial government can make specific legislation to
amend a constitutional enactment, in this case it has ousted itself of doing so by including the
Section 128 provision.
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.
In the Shaw case the high Court of Australia stated;
42. Jason Shaw, the applicant, migrated to Australia with his parents in 1974. He was then two
years of age and a citizen of the United Kingdom. Along with his parents, he was granted a
permanent entry permit. Under reg 4 of the Migration Reform (Transitional Provisions)
Regulations (Cth), after 1 September 1994 the permanent entry permit held by the applicant
continued in effect as a transitional (permanent) visa that permitted the applicant to remain
in Australia indefinitely. He has never left Australia since arriving in 1974. However, he
has never become an Australian citizen.
Again;
However, he has never become an Australian citizen.
The judges simply seemed not to realize that they were talking about “citizenship” involving
political rights and not at all being about nationality.
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
Therefore, Mr Shaw was an “Australian citizen” the moment he entered the Commonwealth of
Australia and began to reside in a State by obtaining State citizenship! He remained for all
purposes a “subject of the Queen” and as the Commonwealth of Australia is a limited
POLITICAL UNION and not a nation in its own rights one cannot have a nationality of being an
Australian (as incorrectly referred to being Australian citizenship”) as no such nation exist!
To hold that the Commonwealth of Australia is an independent “nation” would mean to claim that
the States no longer exist as such. The federation then was a confederation!
For the extensive set out above, it is clear that Jason Shaw was an Australian citizen from the
moment he came to reside in a State in the Commonwealth of Australia.

Part 2 Page 44
The High Court of Australia has only constitutional powers to interpret the meaning of the
Constitution provisions by the intentions of the Framers and it has no constitutional powers to
pursue to bring within the meaning of constitutional provisions that were never intended by the
Framers to be so!
Ex Parte Lovell; Re Buckley (1938) 38 S.R. N.S.W. 155 at 158; 55 W.N. 63 Jordan C.J.
“This court however must take the act as it finds it, and cannot do violence to its language in
order to bring within its scope, cases, which although within its mischief are not within its
words.”
The following ought to be applied perhaps to Shaw, Sue v Hill and the Sykes v Cleary cases, to
mention a few, this as those cases, in my view were based upon ill conceived reasoning, and not at
all as to the intentions of the framers of the Constitution;
Duncan v Queensland (1916) 22 CLR 556, 582 (per Griffith C.J.)

“That case (a previous decision of the High Court, Foggit, Jones & Co v NSW (1915) 21
CLR 357) was very briefly, and I regret to say, insufficiently argued and considered on the
last day of the Sydney sitting..... The arguments which now commend themselves to me as
conclusive did not find entrance to my mind. In my judgement that case was wrongly decided,
and should be overruled.”
The Shaw case;
45. In July 2001, the Minister cancelled the applicant's visa on the ground that he had a
substantial criminal record and did not pass the character test as defined by
HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html"
s 501 (6).
HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html" Section
501 does not apply to British citizens who arrived in Australia before 3 March 1986
46. There are only two heads of federal constitutional power that could arguably extend the
operation of HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html" s 501 to a
person such as the applicant who is a British citizen and who arrived in Australia in 1974.
The first is the immigration power; the second is the aliens power HYPERLINK
"http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l "fn49" [50] . A long line of
authority establishes that the immigration power does not authorise the Parliament
to make laws with respect to persons who have immigrated to Australia, made their
permanent homes here and become members of the Australian community
HYPERLINK "http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l "fn50" [51] .
Accordingly, the immigration power did not authorise the enactment of HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html" s 501 in so
far as it purports to apply to the applicant.
47. The aliens power, however, gives the Parliament greater power over immigrants than the
immigration power. In Nolan v Minister for Immigration and Ethnic Affairs
HYPERLINK "http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l "fn51" [52] ,
this Court held that any immigrant who has not taken out Australian citizenship is an alien
for the purpose of HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s51.html" s 51 (xix) of
the Constitution. On that view of the aliens power, the Parliament can legislate for the
deportation of persons who are British citizens and have been permanent residents of
Part 2 Page 45
Australia for many years. In Nolan, the Court upheld an order of the Minister deporting
Nolan, a citizen of the United Kingdom who had lived permanently in Australia since
1967 but who had not taken out Australian citizenship.
48. In Re Patterson; Ex parte Taylor HYPERLINK
"http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l "fn52" [53] , however, a
majority of this Court held that Nolan should be overruled in so far as it held that all
British citizens living in Australia who had not taken out Australian citizenship were
aliens for the purpose of the Constitution. Taylor was a British citizen who had arrived in
Australia in 1966 and had since lived here permanently. However, he had not taken out
Australian citizenship. A majority of the Court held that HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html" s 501 of
HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/" the Act
could not constitutionally authorise the deportation of Taylor.
49. As I pointed out in Re Minister for Immigration and Multicultural Affairs; Ex parte Te
HYPERLINK "http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l "fn53" [54] ,
Re Patterson has no ratio decidendi. The four majority Justices were Gaudron, Kirby and
Callinan JJ and myself. Gaudron J held that Taylor was a member of the body politic
that constituted the Australian community and that British citizens who were
members of that body politic and had been in Australia before 1987 HYPERLINK
"http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l "fn54" [55] , were not
aliens within the meaning of the Constitution. Kirby J held that Taylor was not an alien
when he arrived in Australia, that he "had been absorbed into the people of the
Commonwealth" HYPERLINK "http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l
"fn55" [56] and that the Parliament could not retrospectively declare him to be an
alien. I held that British immigrants who settled in Australia before 1973 were subjects of
the Queen of Australia and could not be "aliens" for the purpose of the Constitution. I
selected 1973 as the earliest date on which the constitutional power to legislate with
respect to aliens could apply to British immigrants. I did so because 1973 was the
year in which the Parliament enacted the HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/rsata1973258/" Royal Style and
Titles Act 1973 (Cth). But I expressed the view that the relevant date "maybe later"
HYPERLINK "http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l "fn56" [57] .
Callinan J agreed with the reasoning of both Kirby J and myself.
While a judge of the High Court of Australia may elect judicial powers because of some
HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/rsata1973258/" Royal Style
and Titles Act 1973 (Cth). The truth is that this latter Act is irrellevant to the issue of
constitutional powers regarding “citizenship”.
Constitutionally,
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

Part 2 Page 46
Therefore, becoming a citizen of the Commonwealth of Australia is only achievable by becoming
a state citizen first.
The fact that the Certificate of Australian Citizenship states;
QUOTE
Certificate of Australian Citizenship
GERRIT HENDRIK SCHOREL

Born on 7 th June 1947
having applied for a Certificate of Australian Citizenship, having satisfied the conditions
prescribed by the Australian Citizenship Act 19448 for the grant of such Certificate
and having undertaken to fulfil the responsibilities of a citizen.
END QUOTE
It must be clear that no kind of application can be made for this and neither can any be granted by
the Commonwealth of Australia in that it is AUTOMATICALLY obtained upon obtaining “State
citizenship”.
Therefore, what is really occurring was that I applied to my understanding to naturalize and by
this dispose of my Dutch nationality to become a British national within the meaning of
Subsection 51(xix) of the Constitution, and the Commonwealth of Australia purport this to be
somehow to be “Australian citizenship”.
Barton J, the parliament cannot give the word a meaning

not warranted by s73 of the Constitution.
Commonwealth v Brisbane Milling Co. Ltd. (1916) 21 C.L.R. 559; A.L.R. 272.
Likewise, the Commonwealth of Australia cannot turn naturalization into something else not
contemplated by the Framers of the Constitution.
Subsection 51(xix) naturalization powers had nothing to do with political rights, that are included
in citizenship, but related to alliance to the British Crown.
“Australia” is a continent, and was so before Federation, at least that is what I perceived was
applicable also at the time of Federation.
The Framers of the Constitution made clear that at all official functions the national anthem was
to bless the Monarch.
Mr. GLYNN:
The foundations of our national edifice are being laid in times of peace; the invisible
hand of Providence is in the tracing of our plans. Should we not, at the, very inception
of our great work, give some outward recognition of the Divine guidance that we feel?
This spirit of reverence for the Unseen pervades all the relations of our civil life. It is
felt in the forms in our courts of justice, in the language of our Statutes, in the oath
that binds the sovereign to the observance of oar liberties, in the recognition of the
Sabbath, in the rubrics of our guilds and social orders, in the anthem through which
on every public occasion we invocate a blessing on our executive head, in our domestic
observances, in the offices of courtesy at our meetings and partings, and in the time-
honored motto of the nation.
Part 2 Page 47

Sir JOHN DOWNER.-
Thus we are forced-after, forsooth, the 1891 Convention and the three sessions of this
Convention-back to the elementary consideration of whether this body is to be analogous to
the position of the House of Lords in [start page 2036] England, and we have the English
Constitution brought in, and an appeal made through our patriotism, and "God save the
Queen," and all that sort of thing. That is not the question which we have to deal with. We
have to do our best to arrange a Constitution which has very little analogy to the English
Constitution, but, at the same time, from the circumstances of our birth and the love of
country, we have to adhere to the English Constitution as nearly as is consistent with the
altered condition of things.
Whatever the argument might be of those seeking to advocate that the Commonwealth of
Australia is an independent nation, the truth is that constitutionally it never is and never can be.
Mr. SYMON (South Australia).-I beg to move-
I wish to clear away the misconception in the first place that I have any objection whatever
to the word "Commonwealth," or to the use of the word "Commonwealth," in this Bill. I
have no objection to that where it is confined to the expression of the political Union. In the
preamble honorable members will find that what we desire to do is to unite in one
indissoluble Federal Commonwealth-that is the political Union-"under the Crown of the
United Kingdom of Great Britain and Ireland, and under the Constitution hereby
established." Honorable members will therefore see that the application of the word
Commonwealth is to the political Union which is sought to be established. It is not intended
there to have any relation whatever to the name of the country or nation which we are going
to create under that Union. The second part of the preamble goes on to say that it is
expedient to make provision for the admission of other colonies into the Commonwealth.
That is, for admission 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.
The first clause says-This Act maybe cited as the Commonwealth of Australia Constitution
Act." I assent to all that. Then comes clause 3, which says it shall be lawful for the Queen,
by and with the advice of Her Majesty's Most Honorable Privy Council, to declare by
proclamation that, on and after a day therein appointed, not being later than one year after
the passing of this Act, the people of the colonies enumerated shall be united in a Federal
Constitution under the name of-I say it ought to be "of Australia." Why do we want to put in
"the Commonwealth of Australia"? We are there by our Constitution giving the name to our
country, and, to the united people who are to be established as a nation under the
Constitution. By what name, I would like to ask honorable members, will they call this
Federal Union? It will be called by the name Australia, whether we like it or not.
Again;
That is, for admission 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.
The Commonwealth of Australia is a LIMITED POLITICAL UNION by the Colonies (now

States) As like the EUROPEAN UNION is in Europe.

Part 2 Page 48
No one would seek to argue that the European Union is a country. Yet, it doesn’t matter if one is a
British national, a Dutch national, Frenchman, German or else they are all “citizens of the
European Union”
Citizenship is not limited to the nationality of the person but by the territory in which the person
resides that forms part of the European Union.
No one could dream of the European Union to become some Monarchy, Republic or Dominion.
Likewise, the Commonwealth of Australia likewise cannot be a Monarchy, Republic or
Dominion. It is a federation out of the States.
The States themselves can perhaps become independent in time and then assume to become a
Republic or Monarchy but not while they remain dominions. If the states cannot become
Monarchies or Republics in the current climate then their Agent, so to say, the Commonwealth of
Australia hardly can take on some different constitutional position.
The term “citizenship” was not at all associated with “nationality” but rather covered any
“subject of the Queen” residing within the Commonwealth of Australia or for that the continent
Australia.
The terms “Australian citizen”, “Australian citizens” , “Australian citizenship”, “Commonwealth

citizens”, “federal citizen”, “citizen of the Commonwealth” were used ongoing by the Framers of
the Constitution, as shown below, and as such were terms not as to “nationality” but in regard of
citizenship as being a resident in the colonies (now States) and the Commonwealth of Australia.
Therefore any constitutionalist, as I am, is or should be aware that the term “Australian
citizenship” cannot be held to relate to nationality. Neither that there can be an “Australian
nationality” merely because some judges happen to desire to make such a declaration as the
proper powers to legislate for this is to follow the procedures within Section 128 of the
Constitution.
13-02-1890 Re; Australian citizen

13-03-1891 Re; Australian citizens
Re; dual citizenship
26-03-1897 Re; citizen of the Commonwealth
29-03-1897 Re; Dual citizenship
30-03-1897 Re; federal citizen
Re; citizen of the Commonwealth
15-04-1897 Re; Dual citizenship
Re; Commonwealth citizenship
28-01-1898 Re; Australian citizenship
Re; Commonwealth citizens
Re; federal citizenship
Part 2 Page 49
Such as Hansard 8-2-1898 Constitution Convention Debates
Mr. SYMON.-Yes. Mr. Wise asked why should New South Wales or Victoria-to take a case
which is extremely unlikely to occur-prohibit a citizen of the neighbouring colony from acquiring
property in the legislating colony, or only allow him to acquire it under adverse conditions? But
why not? The whole control of the lands of the state is left in that state. The state can impose
what conditions it pleases-conditions of residence, or anything else-and I am not aware that
a state has surrendered the control of the particular administration of its own lands, or of
anything that is left to it for the exercise of its power and the administration of its affairs. I
would much prefer, if there is to be a clause introduced, to have the amendment suggested by
Tasmania, subject to one modification, omitting the words-"and all other persons owing
allegiance to the Queen." That would re-open the whole question as to whether an alien, not
admitted to the citizenship here-a person who, under the provisions with regard to
immigration, is prohibited from entering our territory, or is only allowed to enter it under
certain conditions-would be given the same privileges and immunities as a citizen of the
Commonwealth. Those words, it seems to me, should come out, and we should confine the
operation of this amendment so as to secure the rights of citizenship to the citizens of the
Commonwealth. I think, therefore, that with some modification the amendment suggested by
Tasmania would be a proper one to adopt.
And
Mr. KINGSTON.-I say we are creating a Commonwealth in which I hope there will be a
federal citizenship, and I shall be glad indeed to see the powers of the Federal Parliament
enlarged to enable that body to legislate, not only with reference to naturalization and aliens,
but also with reference to the rights and privileges of federal citizenship.
An HONORABLE: MEMBER.-What is the meaning of citizenship?
Mr. KINGSTON.-It is not defined here, but it ought to be defined in the Constitution, or
else we ought to give power to the Federal Parliament to define it. And, after having defined
what shall constitute Australian citizenship for the purposes of the Commonwealth, we
ought to carefully prevent any state legislating in such a way as to deprive any citizen of the
Commonwealth of any privileges which citizenship of the Commonwealth confers within
its borders. I have the honour to come from a state which has already adopted a system of
absentee taxation, but I do not hesitate to say, speaking on my own individual account, that I

Part 2 Page 50
think the continuance of that system, applied to citizens of the Commonwealth resident in
other states of the Commonwealth, would be a great mistake and an unfederal act.
Mr. HIGGINS.-If a rich South Australian went to live in Tasmania, on account of the
cool climate, would you allow the imposition of the absentee tax on him?
Mr. KINGSTON.-I do not think it ought to be imposed on him.
And
An HONORABLE MEMBER.-How would that affect a tax on absentees?
Mr. WISE.-It would give full power to impose a tax on absentees outside the
Commonwealth, but not within it. There [start page 675] should be no absentees within the
Commonwealth after federation. I do not see, how, after federation, a man can be regarded
as an absentee at Sydney when he lives in Melbourne. If we are to have federation, the idea
that when a man moves from one part of the Commonwealth into another he becomes an
absentee, or ceases to be an Australian, is one that must vanish, and we ought, as far as our
Constitution will permit us, to do everything to make it vanish quickly. It is a survival of the
old idea that there is a distinctive citizenship in a Victorian, and a distinctive citizenship in
a New South Wales man. That is the idea which I am endeavouring to destroy by supporting
the amendment of Tasmania, that Australian citizenship, and that alone, shall be recognised
in every part of the Federation. The way to secure that is to provide in the clearest terms, as
Tasmania suggests, that no local Parliament can have any authority to, in any way, abridge
the citizenship of an Australian.
Mr. REID (New South Wales).-I really think that the constant attempts which are being
made to interfere with the rights of the states, in matters which are left to them expressly, is
becoming quite alarming. There are a number of general words already in this Constitution
which, I fear, may be used so as to almost destroy the independent powers of legislation of
the states, with reference to every conceivable subject that they have left to them.
For the above, and what already has been placed before on file in previous proceedings the issue
therefore is that if the Commonwealth of Australia holds that “Australian citizenship” purports
some kind of Australian nationality then this is ULTRA VIRES, as no such constitutional powers
were granted by the Imperial parliament and neither by any Section 128 referendum. Section
51(xix) only provides for naturalization of “aliens” to be made “British nationals”.
The problem with this is that if the Australian Citizenship Act 1948 purports to be “Australian
nationality” then this likewise is unconstitutional and so ULTRA VIRES.
If therefore the Constitution of the State of Victoria relies upon the Australian Citizenship Act
1948 as to provide State “franchise” then this is also ULTRA VIRES, as an the State cannot rely
upon an unconstitutional enactment.
If the Australian Citizenship Act 1948 is purporting to grant “citizenship” as to refer to political
rights then that too would be unconstitutional, and so ULTRA VIRES.
If the “AUSTRALIAN CITIZENSHIP” referred to in the “Australian Citizenship Act 1948” in

fact is and remains to mean that a person is naturalized to be a British national, then in any case it
is ULTRA VIRES where it purports to define/declare the nationality of any person born within
the States, as any subject born within the realm of the King (Queen) is automatically a national
and so a subject of the British Crown. Any reliance by the State Constitution to allow for
franchise based upon a unconstitutional provision in that regard also remains ULTRA VIRES.

Part 2 Page 51
It ought to be kept in mind that in 1948 most likely no one really has a slightest understanding and
perception as to what was constitutionally appropriate. Whatever was enacted at the time by ill
conceived perceptions cannot make it lawful. It remains ULTRA VIRES for so far it is beyond
constitutional powers or exceeding constitutional powers.
As the Framers of the Constitution made clear that the Commonwealth of Australia could put a
disability to any “alien” upon naturalization to obtain “citizenship”, this by legislation any race is
subjected to provided within subsection 51(xxvi) of the Constitution or otherwise being limited,
such as that a person naturalized cannot obtain citizenship within, say, 2 years of naturalization,
then a “Certificate of Australian Citizenship” cannot be granted to anyone. For example, since the
1967 referendum that provides for Aboriginals to be dealt with under the “race” provisions of
Section 51(xxvi) constitutionally not a single Aboriginal can have citizenship involving franchise
as they are constitutionally barred once the Commonwealth of Australia enacted legislation within
its race constitutional powers.
Likewise, while the race powers did not give the Commonwealth of Australia any powers to
legislate against the “general community” the fact that the Commonwealth of Australia
nevertheless did so and so with the Racial Discrimination Act, by this in effect it also robbed
each and every citizen of their right to have franchise and indeed be a Member of Parliament!
Because “Australian citizenship”, albeit wrongly, has been the core requirement of numerous
positions, such as to be a judicial officer, to be a police officer, to be a Member of Parliament, etc,
it is having horrific consequences that follows from what currently is so wrongly applied.
Still, the rule of law, so constitutional law, must be applied in a proper manner, and not some
Banana Republic kind of system.
The Commonwealth Electoral Act 1918 also relies upon the unconstitutional declaration/
definition of “Australian citizenship” as to provide for “franchise” where in fact “franchise in the
Commonwealth of Australia is obtained only by having obtained State franchise through “State
citizenship”.
What is missing is the States legislation to provide for State citizenship and by this for
“franchise”!
Moller v The Board of Examiners [1999] VSC 55 (10 March 1999)
16. The concept of allegiance was considered by Ormiston, J. (as he then was) in Nicholls v.
Board of Examiners for Barristers and Solicitors [1986] V.R. 719. At p.728 his Honour
said:
"Allegiance is a concept which is at the same time both obvious and subtle. Its precise
nature has varied over the centuries in ways which it is unnecessary to discuss here. For
those reasons it is undesirable to say more about the duty of allegiance than is necessary
for the decision in this case. It should be observed, however, that it is not now an
obligation peculiar to monarchical systems of government, whatever may have been its
basis in Stuart times: cf. the Case of the Postnati:: Calvin's Case (1608) 7 Co. Rep. 1a;
2 State Trials 559; 73 E.R. 761 and Re the Stepney Election Petition (1886) 17 Q.B.D.
54. Secondly, the present case does not concern the oath of allegiance to be given by a
subject, national or citizen. Even when an alien had virtually no rights, the correlative
right of protection by the sovereign was sufficient to justify a duty of allegiance on the
part of aliens, at least aliens from friendly countries, who lived within the realm. Since
the disabilities of aliens have been largely abolished, except as to the right of entry into
the country, their duty of allegiance, when they live within this country, cannot be
disputed. On the other hand, I have found no authority, at least since the Middle Ages,
Part 2 Page 52
which suggests that the taking of an oath of allegiance creates any new or different
obligation on a resident foreign national. In making this latter observation, I am in no
way referring to those oaths which are taken as part of a naturalization ceremony or
which otherwise contain a renouncing of all other allegiance, as appears in the oaths in
Schedules 2 and 3 to the HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/aca1948254/" Australian
Citizenship Act 1948. I add that what I have said as to the status of aliens appears
applicable to all those who do not owe a general duty of allegiance and I say nothing as
to the effects of the repeal of the HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/num_act/aa194775/" Aliens Act 1947 and
the prospective repeal of the definition of 'alien' in the HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/aca1948254/" Australian
Citizenship Act 1948 (Act No. 129 of 1984, HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/c167/s4.html" s.4 (2)(a)).
Consequently there would appear to be significant differences between the local duty of
allegiance owed by aliens or non-citizens, and that owed by citizens or those who
otherwise owe a general duty of allegiance. When Parliament amended s.5(2) of the
Legal Profession Practice Act 1958, it chose to retain the obligation to take an oath of
allegiance for those who wished to become admitted to practise, but gave a right to
those applicants to seek exemption from that obligation. As was pointed out by the
Chief Justice in Re Miller [1979] V.R. 381, at p.383, this appears to be a recognition by
Parliament of the importance attaching to that obligation. It is therefore neither
necessary nor desirable that any opinion should be expressed as to the right of persons
other than aliens or non-citizens to seek exemption under the amended sub-section. The
present applicant is a citizen of a foreign country and the considerations applicable to
him are not necessarily considerations applicable to citizens of this country, nor to
persons who may hold dual citizenship."
Dual citizenship is not a dual nationality this as the Framers of the Constitution made clear;

Mr. SYMON.-
Dual citizenship exists, but it 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 is meant 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.
Supreme Court of Victoria - Court of Appeal
Moller v Board of Examiners for Legal Practitioners [1999] VSCA 116 (30 July 1999)
24. Mr Bevan-John's next submissions related to the appellant's personal position. He put it
that the appellant has already publicly and deliberately declared his allegiance to Australia
and that the purpose of his taking the oath has been fulfilled by his pledge upon taking
citizenship. He submitted that it was unfair to use the exemptive power under
HYPERLINK "http://www.austlii.edu.au/au/legis/vic/consol_act/lpa1996120/" the Act
to excuse those who do not want to make any commitment of allegiance to Australia at all
and to deny it in respect of one who has already made the solemn pledge of that allegiance
when he formally undertook Australian citizenship.
And
Part 2 Page 53
32. The requirement which the Court imposes on those seeking admission to practise as
barristers and solicitors in this State to take an oath or make an affirmation of allegiance
retains a significance which goes beyond the mere academic and the pompous. Young,
C.J. explained its importance in Re Miller [1979] V.R. 381 at 383 in terms of the statutory
recognition given by the Parliament to the oath of allegiance and its administration to
persons carrying out significant functions in this State.
33. To my mind his Honour's comments remain valid, notwithstanding the differences to be
found between the terms of HYPERLINK
"http://www.austlii.edu.au/au/legis/vic/consol_act/lpa1996120/s6.html" s.6 of the
HYPERLINK "http://www.austlii.edu.au/au/legis/vic/consol_act/lpa1996120/" Legal
Practice Act 1996 and those which existed in s.5 of the Legal Profession Practice Act
1958. As Street, C.J. said in Re Howard [1976] 1 N.S.W.L.R. 641 at 643, the significance
of the oath being administered to those wishing to practise as barristers and solicitors is its
reminder to them that their role will be to serve law and justice in the State, of which the
Sovereign is the fountainhead.
34. It is, therefore, not surprising that the Court, in exercising its role as the ultimate controller
of the profession, imposes as one of the prerequisites for admission to practise a promise
of allegiance and does not lightly entertain applications to exempt persons from that
obligation. Where, as here, exemption was sought on the grounds of a strongly held
commitment to a republican model of government and a fear of compromising conscience
and principles if required to take an oath of allegiance, it is equally, in my view, not
surprising that His Honour exercised his discretion against exemption.
Again;
He submitted that it was unfair to use the exemptive power under HYPERLINK
"http://www.austlii.edu.au/au/legis/vic/consol_act/lpa1996120/" the Act to excuse those
who do not want to make any commitment of allegiance to Australia at all and to deny it in
respect of one who has already made the solemn pledge of that allegiance when he formally
undertook Australian citizenship.
What was misconceived was that the “oath of alliance” is not as to “citizenship” but to
“naturalization” in regard of Subsection 51(xix) op the Constitution The oath of alliance to be
admitted to the Bar to practice in the State of Victoria is a different kind of alliance as it related to
uphold the specific laws of the State of Victoria. The oath of alliance in the State of NSW, for
example, is to uphold the laws of that State when seeking admission to the Bar there.
There can be no “oath of alliance” in regard of “Australian citizenship” as referred to by the
Framers of the Constitution as it is obtained “AUTOMATICALLY” when obtaining state
citizenship.
As I perceived it at the time of what I considered to be “naturalization” I made an oath of alliance

to become a subject of the British Monarch and indeed the Dutch Government advised me that by
taking up this naturalization I no longer have the Dutch nationality. This being so then clearly the
“oath of alliance” was in regard of the naturalization powers provided for within Subsection
51(xix) to naturalize “aliens” to become British nationals, and as such nothing to do with
“citizenship” as to being to include “franchise”.
It is not relevant if the intentions of the Commonwealth of Australia is to include “franchise” as it

simply is unconstitutional and so ULTRA VIRES.

Part 2 Page 54
Many “aliens” who arrived as children in the Commonwealth of Australia with their parents, who
subsequently naturalized, found that years later they never were actually naturalized even so they
were voting in elections. Indeed, the Australian Electoral Commission is on record that people
were found not to be naturalized and so not entitled to vote even so they had filled out a card to be
an Australian citizen and so entitled to vote.
What has occurred that often “children” understood, as their parents did, that they were
naturalized at the time their parents were but this was somehow omitted from the documentation
to show so. My own 45 year old stepdaughter discovered this only a few years ago! By this, while
she considers herself to be an State citizen, and so an Australian citizen and also having been
naturalized, the Commonwealth of Australia however never accept any of this. The Pochi case is
another clear example, where Mr. Pochi was deported where the High Court of Australia in 1982
held he was not an “Australian citizens” despite that he had lived for most of this life and had
children here. The High Court of Australia confusing “Australian citizenship” with “nationality”.
To many “Australian citizenship” remains to be relating to having political rights and nothing to
do with nationality, and yet the Commonwealth of Australia keep advertising about “Australian
citizenship” but in real terms may and does in fact refer to some concocted “Australian
nationality” even so no constitutional powers exist in that regard.
Therefore, the fact that I had filled in enrolments cards to vote in Federal elections is of no
meaning where this was done upon misconceptions created by the Commonwealth of Australia
itself to refer to “Australian citizenship” but which in fact was not at all referring to “franchise” of
citizenship as such but to some purported Australian nationality.
As a self educated “constitutionalist”, I view that the Racial Discrimination Act in effect (even
so unconstitutional in its conception) in fact robs every person of their “citizenship” and so their
“franchise” as the Framers made clear that any legislation within the race provisions disqualified
every such person of their “citizenship” and so their franchise”. Hence, there can be no one who is
eligible to vote or to be a Member of Parliament.
In any event, where I claim that constitutionally I am a British national if the naturalization was
effected within the constitutional provisions of subsection 51(xix) of the Constitution, and the
High Court of Australia already made clear in Sue v Hill that British nationals are “foreigners”
(“aliens”) and so kicked out Heather Hill, then clearly I cannot be deemed to be entitled to vote
in any event. Australians are “Australians” by the fact that they are residing within the
Commonwealth of Australia, not because they are naturalised or born in the Commonwealth of
Australia.
Those born in the United Kingdom, but residing then in the colonies (now States) and
participating in the Constitution Conventions to create a federation nevertheless considered
themselves to be Australians, besides being British nationals.
Lord Denning M.R. in Reg. v.

Governor of Brixton Prison; Ex parte Soblen (1963) 2 QB 243, at p 299, stated
4. The law of this country is very jealous of any infringement of personal

liberty (Cox v. Hakes (1890) 15 App Cas 506, at p 527) and a statute or
statutory instrument which purports to impair a right to personal liberty is
interpreted, if possible, so as to respect that right: R. v. Cannon Row Police
Station (Inspector) (1922) 91 LJKB 98, at p 106.
CHU KHENG LIM AND OTHERS v. THE MINISTER FOR IMMIGRATION, LOCAL
GOVERNMENT AND ETHNIC AFFAIRS AND ANOTHER (1992) 176 CLR 1 F.C. 92/051
Part 2 Page 55
14. Aliens, not being members of the community that constitutes the body
politic of Australia, have no right to enter or remain in Australia unless
such right is expressly granted. Laws regulating their entry to and providing
for their departure from Australia (including deportation, if necessary) are
directly connected with their alien status. And laws specifying the
conditions on and subject to which they may enter and remain in Australia are
also connected with their status as aliens to the extent that they are capable
of being seen as appropriate or adapted to regulating entry or facilitating
departure if and when departure is required((107)
This indicates that permission to be and remain in Australia is not depending on being a natural or
born national, but rather if one has become a member of the body politic of Australia. This body
politic is in fact being an Australian citizen.
The right of exercising any rights as an “Australian citizen” is enshrined in the Constitution
Mr. DEAKIN.-
In this Constitution, although much is written much remains unwritten,
It falls under personal liberties to exercise ones right to vote or not to vote.
LEGAL FICTION
Sue v Hill Authority;
GRADUAL INDEPENDENCE, that is what the High Court of Australia argued in the Sue v Hill
case to oust her, despite being a subject of the British Crown from the Senate. Quit frankly, at that
time, I had myself argued that in 1919 by the signing of the Treaty of Versailles the
Commonwealth of Australia had become in effect an INDEPENDENT nation and by this the
Commonwealth of Australia Constitution Act 1900 (UK) was no more valid then any other
colonial legislation.
The Family Court of Australia even published this in its judgment!
But, while I had this great kind of argument as to why the Commonwealth of Australia was an
INDEPENDENT nation, I later discovered that constitutionally this could not be so. If, the
Commonwealth of Australia somehow became an INDEPENDENT nation then at some point of
time legislation enacted in the commonwealth of Australia and in any of the states would be
defective as they would no longer be what the respective Constitutions required.
The commonwealth of Australia exist as a part POLITICAL UNION between the States, and it
would be sheer impossible for the Commonwealth of Australia to somehow then dictate the States
if it remained to be colonial entities or become independent. No such constitutional powers were
ever provided for in the Commonwealth of Australia Constitution Act 1900 (UK) and the
Framers of the Constitution clearly opposed such possibility without a Section 128 referendum!
Indeed, they made clear that the Commonwealth of Australia could not , so to say, throw off the
Imperial connection under this Constitution.
The signing of the Treaty of Versailles could not have somehow invoked the Commonwealth of
Australia to become INDEPENDENT and neither can there be something like a gradual becoming
of INDEPENDENT as to even contemplate this on constitutional grounds would mean that having
a Constitution is of no avail as no one will know when things are purportedly changed over time
as it be the judges who may declare what they view by hindsight.

Part 2 Page 56
The POLITICAL UNION between the Colonies (now States) to form a political alliance, albeit
partly, was a contract that was binding among them. However, can we accept that somehow a
contracts between them on partial political issues somehow then can change everything?
Would this mean that if tenants of a building are making an alliance then somehow they can
become the owners of the building merely because they claim that over time they became the
owners by what they did?
As the Framers of the constitution made clear, “external affairs” gave the Commonwealth of
Australia powers to make treaties but only for so far it already was within its constitutional
powers. It could not use it to acquire somehow powers it didn’t possess in the first place. As such,
while the Commonwealth of Australia, for example, may make a treaty with any other foreign
nation that their citizens drivers licences will be accepted as valid without needing a international
driving licence, the truth of the matter is that there is no constitutional powers for the
Commonwealth of Australia to do so in the first place, as only the States have the legislative
powers in that regard.
If it were to be allowed for the Commonwealth of Australia to make any kind of treaty in regard
of matters the Commonwealth of Australia Constitution Act 1900 (UK) specifically withheld any
legislative powers for, then the whole notion of having a Constitution that can only be amended
by way of Section 128 referendum no longer is applicable as the Commonwealth of Australia can
simply circumvent any constitutional limitation by making treaties in regard of matters it didn’t
have constitutional powers for.
The Constitution is “constant” and can only be amended by Section 128 referendum. CoAG
(Council of Australian Governments) is an unconstitutional entity and cannot therefore somehow
circumvent Section 128 provisions either.
When I contested the legal validity of the application of the Cross Vesting Act, in 1994, I was, so
to say, thrown out by the Courts, yet in 1999 the High Court of Australia in the Wakim case then
formally declared the purported Cross vesting act to be unconstitutional.
In my 28 October 2002 to Mr Justice Michael Kirby I contested the validity of the Australian Act,
and on 17 June 2003 His Honour in the MIMA case then made clear the Australian Act had no
legal enforcement against the Constitution.
It doesn’t matter if the States therefore somehow agreed to the enacting of the “Australian Act” as
it was beyond the powers of Subsection 51(xxxvii) to allow for this in that this subsection only
allows for matters to be referred that is in dispute between two or more States but not all States.
The “Australian Act” could not be held to have been a matter of dispute between two or more
States such as the Murray River can be!
There never was any constitutional powers given to the High Court of Australia to declare the
Commonwealth of Australia to be some alleged INDEPENDENT nation as its constitutional
powers are bounded by the limits of the Constitution.
Are we next going to have that essentially we have become part of the Republic of Indonesia
because we now are enacting legislation dealing with refugees to please the Indonesian
Government?
As Author of various books about certain constitutional issues under the INSPECTOR-
RIKATI® label I have extensively canvassed those constitutional issues, and rely upon my past
published books also in support of this argument that Australians are Australians because they are
living in the Continent of Australia and that they are British nationals and this is EMBEDDED in
the Constitution to remain so. No one can point out that there is a country named Australia where
it makes laws regarding, say, driving licences, council rates, etc for the whole of the nation. The
Commonwealth of Australia doesn’t even have legislative powers over local governments in the
States.
Part 2 Page 57
It is simply a LEGAL FICTION that the Commonwealth of Australia is a INDEPENDENT

nation, and so also that somehow the Commonwealth of Australia has a “Queen of Australia”.
Would it not encompass that judicial officers who made an oath of alliance to the British Monarch
and since remained judges of the Courts but never did make a new alliance to the pretended
“Queen of Australia” then are disqualified from sitting as judicial officers at the bench of the
Queens Courts?
Surely, no one could accept that lawyers who swore an oath of alliance to the British Monarch
somehow could continue to be members of the Bar and be judicial officers when we somehow
now hold that the British Monarch and its subjects are all “foreigners” and ousted from not only
voting but also from being Members of Parliament, as Heather Hill was?
When I applied to naturalize it was in the perception that the I would become a British national
with the British Crown as head of the Empire. It is not, in my view, for the High Court of
Australia then to somehow imply later with the Sue v Hill case that somehow I never gained any
alliance to the British Crown, neither became a subject of the British crown but somehow became
a subject to a non existing Queen of Australia of a fictional country.
In my 30 September 2003 published book titled;
INSPECTOR-RIKATI® on CITIZENSHIP
A book on CD about Australians unduly harmed.
ISBN 0-9580569-6-X
I canvassed the issue then about the case of Pauline Hanson and David Ettridge as to what I
considered to be their wrongful conviction. I pointed out that it was immaterial what was stated on
the flip side of the membership card as what was relevant was that the membership Card showed
that the person was a Member of Pauline Hanson One nation and as such were full members for
purpose of legislation. On 8 October 2003 the Queensland Attorney-General and Minister of
Justice then wrote to me that in fact legal issues I had raised had not been canvassed by any of the
parties in any of the proceedings. Yet, subsequently the Court of Appeal about word for word
used the very legal argument I had used in my book as to overturn the convictions.
What was clear is that those who joined Pauline Hanson One Nation for all purposes were
“Members” regardless of what may have been stated otherwise to try to interfere with this on the
flip side of the membership card.
Likewise, I naturalized to become an British national referred to as “Australian” because of being

resident in the Commonwealth of Australia, and do not accept that somehow years later the High
Court of Australia, and notably beyond its constitutional powers (as it did with the MABO case,
as the colonies joining Federation did not accept there was a native title issue in Australian
colonies existing) can then interfere with my constitutional rights being a British national. It is not
relevant for this if the British Parliament did or did not legislate as to Australians being
“foreigners” as it would be ULTRA VIRES, as it has no legislative powers to deny Australians
their British nationality that is embedded in the Commonwealth of Australia Constitution Act
1900 (UK).
Mr. DEAKIN.-

Part 2 Page 58
In this Constitution, although much is written much remains unwritten,
Because no judge can be an adjudicator in his own cause, it must be clear that in effect not a
single judge could purport to have a position to decide this matter if his/her own position depends
upon the outcome of this matter to be decided.
It would be judicial bias for any judicial officer to decide a matter in which his very own survival
of being a judicial officer depends upon the outcome of the matter.
The first principles of British law incompetence, propter affectum to sit upon the trial must be
considered.
In my view a Jury of men in the language of omni exceptions majores could without difficulty
consider the matters and if it is tenable for a High Court of Australia to somehow create on its
own some kind of a LEGAL FICTION that does not exist but affects by this the very
constitutional rights enshrined in the Constitution!
Now, still assuming them to be a Jury, and of course invested with all the attributes of Jurors
at the Common Law, this challenge propter affectum certainly ought to hold good for even
were the statute construed as bearing out a different signification, still an established right
was not to be overturned by any supposed negative clause, but by a direct and express
affirmation. It was an immutable law of justice of Great Britain, in fact of every civilised
country on the face of the globe, and well laid down had that doctrine been from time
immemorial, so far had the doctrine been carried too, that Blackstone, book i p. 91.
Christian's edition, conceives it impossible so monstrous and absurd an injustice should ever
exist any where, as that any man should be constituted a judge in his own cause.
And
Mr. Wentworth gave a very lucid explanation of what in law sedition meant, and how it
could most properly be applied, considering it a Scotticism. Mr. Chief Justice Forbes rather
thought the word had its origin from the Latin tongue, and his Honor, with much classic
taste, proceeding to elucidate his idea used an apt quotation from the Mantuan Bard -- from
the Æneid of Virgil 1 Book, lines 152, 3, 4, as follows:--
"Ac veluti magno in populo, cum soepe coorta est SEDITIO, soevitque animis ignobile
vulgus,
Iamque faces, et saxa volant -- furor arma ministrat."
After a most elaborate, eloquent, and argumentative appeal as to the justice and the facts
applicable to his client's case Mr. Wentworth again sat down.
Forbes C.J., Stephen and Dowling JJ, 20 June 1829
Source: Sydney Gazette, 23 June 1829
As already set out above that Australians (British nationals) are governed by Constitutional law
and British law! It is impossible for the High Court of Australia to somehow throw of the
Imperial powers while still maintaining that the Imperial legislation such as the Commonwealth
of Australia Constitution Act 1900 (UK) remains in force albeit upon conditions what they
themselves consider is relevant. Some kind of, so to say, “cherry picking” tactic.
The mere fact that the people of the Commonwealth of Australia rejected a referendum to become
a REPUBLIC in itself underlines that Australians never accepted that the Commonwealth of
Australia is an INDEPENDENT nation but rather that it remains under the British Crown.
Indeed, the monarchist argued that the British monarchy had been good to us and the Republican
were having their say why to keep this kind of pompous royalty if we can do without. The mere
fact that such kind of arguments were going on in itself indicates that the people of Australia
didn’t accept to become an INDEPENDENT nation and neither regarded to be so. While for
Part 2 Page 59
political purposes members of parliament and indeed those in seat of power of Government may
elect wanting to wield unlimited powers, it is not the function of the High Court of Australia to
look after their power hungry desires but to declare constitutional provisions as intended by the
Framers of the Constitution aligned with what was amended by successful referendums.
David Hick, as I view it, was therefore a British national by birth, irrespective if his mother was
born in the UK!
My children and grandchildren born in the Commonwealth of Australia are all British nationals,
as this is their birthright that was embedded in the Constitution!
For the record, it ought to be understood that my naturalization never involved any State official,
as it was done at 55 Kings Street, Melbourne at the then offices of the Immigration Department,
and as such unlike most other people my naturalization was purely conducted by Commonwealth
of Australia officers, who obviously lacked any constitutional powers to provide me with
“franchise” as that was a State matter. It can therefore neither be argued that somehow the state of
Victoria did provide me with “franchise” as it never did. It erroneously relied upon the ULTRA
VIRES Australian Citizenship Act 1948 as to somehow take it that I was granted “franchise”
where clearly this never could be so.
In the Moller v Board of Examiners for Legal Practitioners case it is clear that some “oath of
alliance” was required. Now, if there was some change of “oath of alliance” because of
purportedly the Commonwealth of Australia having become INDEPENDENT then at what time
was the “oath of alliance” taken by lawyers to practice at the Victorian Bar valid? And, when did
lawyers already have taken this “oath of alliance” to the British Monarch then make a new “oath
of alliance” to the purported “Queen of Australia”? Or is it that we have lawyers (including
judicial officers) where some have sworn an “oath of alliance” to the LEGAL FICTION of Queen
of Australia while others to the British monarch?
I take the position that it is not relevant what the High Court of Australia may purport to make out
of matters in the Sue v Hill case, as ultimately it is ULTRA VIRES where they are making
decisions that are in conflict to the intentions of the Framers (and so amended by the successful
referendums) as expressed in the Constitution.
I view it is beyond constitutional powers for the High Court of Australia to interfere with
constitutional provisions and as such we are and remain to be British nationals and ultimately it
will be up to the people to decide otherwise.

Mr. DEAKIN.-
What a charter of liberty is embraced within this Bill-of political liberty and religious
liberty-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 a
charter of peace-of peace, 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 not
intend to enter into any detailed examination of, or any elaborate apology for, the
Constitution which 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 of union 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
Part 2 Page 60
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.
Again;
My view is that, “We, the people” have the only power to amend the Constitution and political
appointed judges who may lack any proper perception of what is constitutionally appropriate have
no powers whatsoever to rob us of our constitutional rights.
Again, if the High Court of Australia ruling in Sue v Hill that British nationals are not entitled to
franchise and sit in the parliament then this means every Australian by this is in effect excluded
from participating in any election, because of the embedded constitutional provision that we are
and remain British nationals by birth or by naturalization!
And, as the British Parliament did provide for what the Framers of the Constitution intended that
any person subjected to a race legislation by this is having a disability that denies the person to
have citizenship and so franchise (obviously as to avoid persons subjected to race legislation to
overturn the legislation) then by the unconstitutional Racial Discrimination Act each and every
Australian is by this disqualified to have citizenship and so also franchise and to be in the
Parliament.
Unlike what I did, I found it remarkable that the High Court of Australia never appropriately
quoted the Hansard records of the Constitution Convention Debates such as in the Sue v Hill,
Sykes v Cleary, the MABO, Pochi, and other cases. Indeed, in the Sykes v Cleary it incorrectly
referred to the Hansard records of the Constitution Convention Debates, taking it out of
context, as I have already extensively canvassed in previous published books. Hence, likely those
decision will be overturned in time to come as having been erroneously made.
Therefore, on this basis also, the Court could not invoke legal
jurisdiction as to federal jurisdiction because if Australians
are all disqualified to have citizenship and so to be electors,
by whatever reason set out above, then the Court cannot
entertain any alleged breaches of electoral laws.
It might also be asked if the Commonwealth tor of Public Prosecutors lawyers made an “oath of
alliance” to the FICTIONAL “Queen of Australia” or made an “oath of alliance” to the British
Monarch. After all, we cannot uphold British constitutional law, as the Commonwealth of
Australia Constitution Act 1900 (UK) is by officers who have sworn an “oath of alliance’ to a
foreigner and by this are, so to say, perhaps bend to pursue their own cause regardless how
inappropriate and indeed unconstitutional this might be??
In my view, one can only have a “Queen of Australia” if there is such a country as Australia
where the government of that country has all powers over its subjects by its constitution. Clearly,
no such country exist, as like the European Union, the Commonwealth of Australia is a LIMITED
POLITICAL UNION where there can be no kind of monarchy existing.
The only reason that Australians have the Monarchy is not because the Commonwealth of
Australia is a Monarchy, but because it is created by a LIMITED POLITICAL UNION of the
Colonies (now States) who were and remain dominions of the British Empire. Hence, if the States
were to become independent then automatically the Commonwealth of Australia would by this
become INDEPENDENT provided such INDEPENDENCE was reflected by the people of
Part 2 Page 61
Australia to amend the Commonwealth of Australia Constitution Act 1900 (UK) that Australians
no longer would be British nationals, etc.
Again;
In my view, it would be sedition for any judge of the High Court of Australia, having made an
“oath of alliance” to the British monarch then to make a ruling against the Monarch that would
undermine the very intentions of the Commonwealth of Australia Constitution Act 1900 (UK)
that succession of the British Crown will be the monarchy, as for example by the Bill of Rights it
is well recognised that all judicial officers as well as Parliamentarians are to respect the Monarchy
and its position.
Also, as I pursued naturalization after about 23 years having resided in the State of Victoria, and
as such did not quickly get naturalized but indeed took my time to understand what seemed to be
applicable and for all purposed Her Majesty Queen Elizabeth the second was the rightful Monarch
to the British throne, and being the British Monarch who was for all purposes was and remained
the Queen under which Australian State and Federal laws are enacted, then a later fictitious
Queen of Australia for an INDEPENDENT Australia cannot be deemed to override constitutional
foundations.
By marriage, I had a name change, from “Schorel” to “Schorel-Hlavka”, to but for all purposes
remain the same person. As such, regardless if for title purposes there was some alleged name
change the person was and remained the British Monarch, the rightful Monarch in regard of the
Commonwealth of Australia.
As I understand it the British Monarch cannot obtain an other titles as Queen of Australia where
no such Monarchy exist. In my view, it is an insult to name the British Monarch “Queen of
Australia” as being a Queen without a country.
As the British Parliament enacted Section 51(xix) that the Commonwealth of Australia could
naturalize “aliens” to become British subjects, then neither the Commonwealth of Australia and
for this matter the High Court of Australia can turn this into naturalization of “aliens” to become,
say, Chinese, Japanese, Australian, Indonesian or whatever other kind of nationality. The British
Parliament had itself no legislative power but to provide for the Commonwealth of Australia to
naturalize “aliens” to become British nationals, being subjects of the British Crown.
Indeed, if the British Parliament were to have contemplated to provide for Subsection 51(xix) for
naturalization for “aliens” to somehow obtain nationality of anything other then British nationality
then its may itself have been guilty of sedition, as it could not undermine the British Crown and
rights to its subjects.
In my view, the later Sue v Hill judgment, after I had already naturalized in 1994, cannot affect
my constitutional rights to be a British national, and neither that of my children and grand
children born in the Commonwealth of Australia, or for that matter other born or naturalized in
the Commonwealth of Australia.
As such, I am an Australian resident with British nationality since naturalization and failing there
being any State legislation as to define/declare “citizenship” it effectively means that no one is a
“State citizen” and hence neither “Commonwealth citizen” (Australian citizen).
For some years now I have promoted that there should be an OFFICE OF THE GUARDIAN, a
constitutional council, that advises the Government, the People, the Government and the Courts as
to the application and limitations of constitutional powers. Because there appear to be no such
constitutional council and judges appointed to the High Court of Australia lack to be
constitutionalist we are ending up having ill conceived judgements handed down that causes
uncalled problems. Then and only then will all people get the same kind of extensive information
and then judges can consider this kind of extensive information rather then unprepared and often
Part 2 Page 62
taking out of context or not considering at all Hansard records of the Constitution Convention
Debates.
“Naturalization” was never intended to include any legislative power to define/declare citizenship
and the Framers made clear that the States would retain their legislative powers to define/declare
citizenship. Hence, it is beyond constitutional powers of the High Court of Australia to somehow
include “citizenship” into “naturalization” as it would be ULTRA VIRES.
My stepdaughter, (now 45) herself having obtained several law degrees at Monash University,
such as in International Law, never realised then that she was in fact allegedly not naturalized at
the time her parents were, even so my wife insist even to today that to her perception she was
included in the naturalization.
It appears to me that the Commonwealth of Australia basically did a con-job to name the
legislation Australian Citizenship Act 1948, where it knew or ought to have known that the
framers of the Constitution referred to “Australian citizenship” in the same manner as being
“Commonwealth citizenship” and being only obtainable by obtaining “State citizenship”.
As the Framers made clear, to hand over to the Commonwealth of Australia to declare/define
“citizenship” would be to allow it to undermine al, provisions otherwise provided for in the
Constitution.
After all, if the Commonwealth of Australia could define/declare “citizenship” then by this it
could decide who shall or shall not have a right to vote in State elections, or indeed if any state
elections were to be allowed. It could turn the Federation into a confederation by abolishing the
States by not allowing any State elections to be held. My published books already have canvassed
these matters more extensively and therefore no need to set this out in hundreds of pages for this
court, as I refer to my various books published under the INSPECTOR-RIKATI® label.
If this Court were to go along with the fact that “British nationals” are “foreigners” and excluded
from being a Member of Parliament, as Sue v Hill purports, albeit wrongly, then not a single
Australian could be entitled to be in the Parliament and not a single Member of Parliament for this
could be rightful hold a seat in the Parliament.
If the unconstitutional Racial Discrimination Act is deemed to be valid, then again it is a
“disability” against every Australian, British national or not, and then this disability automatically
disqualifies every Australian from having “citizenship” and so “franchise” in both State and
Federal elections.
As was also placed before the Magistrates Court of Victoria the evidence in the ADDRESS TO
THE COURT that the Attorney-General in November 2002 advised me that the State of Victoria
has no legislation to provide State citizenship!
Mr. SYMON.-
As a citizen of a state I claim the right to be a 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 of depriving me of citizenship.
And
so on.
Part 2 Page 63
Therefore, regardless if the Commonwealth of Australia purports to call “nationality” citizenship

it still does not encompass a right to declare/define “CITIZENSHIP” that includes state
citizenship and State franchise.
Section 41 of the Constitution is very clear that the right to vote, and it is a right not an obligation,
is based upon being a State lector. If therefore, the state or States do not have any State
citizenship, then there neither can be a State franchise right, and so section 41 of the Constitution
does not come in play either.
It might be clear that the magistrate on 4-12-2002 upon submission of the Commonwealth
Director of Public Prosecutions held it better that these matters be determined by the High Court
of Australia before any further proceedings were to be dealt with, if at all.
As the onus of proving jurisdiction was upon the Commonwealth director of Public Prosecution
then it had the obligation to have a ruling by the High Court of Australia upon these matters.
The fact that it failed to pursue the matters before the High Court of Australia in my view
was tantamount to abandoning its prosecution against me.
Any notion that somehow I had to pursue the matters before the High Court of Australia is absurd,
as I am not the one who instituted proceedings in the Magistrates Court of Victoria!
When is a proclamation published?
&
When is a proclamation legally enforceable?
Page 96 & 97 of the ADDRESS TO THE COURT 16-11-2005

Mr. BARTON.-
If we make it read that it shall take place on the date of the proclamation by the Governor-
General it will only take place when the Governor-General will take that action by
publishing a proclamation. Then it would follow the action of the Commonwealth.
Again; will take that action by publishing a proclamation
It shows; “Then it would follow the action of the Commonwealth”!
Application of provisions relating to Governor-General.
4. The provision of this Constitution relating to the

Governor-General extend and apply to the Governor-General
for the time being or other the Chief Executive Officer or
Administrator of the Government of the Commonwealth, by
whatever title he is designated.

Mr. SYMON.-

Part 2 Page 64
We know that the Governor is the chief executive officer,
Mr. GLYNN.-The Federal Parliament can affect the prerogative, but only within the
limits prescribed by this Act.
And
Mr. SYMON.-Do you think acquiescence would make a law if the law passed by the
Commonwealth Parliament was ultra vires?
Mr. GORDON.-It would until the law was impugned. If the state did not impugn that law
it would remain in force. It is a law, and it could be allowed to be valid by the force of
acquiescence. And here is another point. The proposal which I am supporting, to some
extent keeps a remnant of parliamentary sovereignty over the strict interpretation of the
courts.
Mr. FRASER.-That is too abstruse for laymen altogether.
Mr. GORDON.-Well, I think not. I am sure that if the honorable member applies his
mind to the subject he will see it is not abstruse. If a statute of either the Federal or the states
Parliament be taken into court the court is bound to give an interpretation according to the
strict hyper-refinements of the law. It may be a good law passed by "the sovereign will of
the people," although that latter phrase is a common one which I do not care much about.
The court may say-"It is a good law, but as it technically infringes on the Constitution
we will have to wipe it out." As I have said, the proposal I support retains some remnant of
parliamentary sovereignty, leaving it to the will of Parliament on either side to attack each
other's laws.
Mr. BARTON.-How would they raise the question?
Mr. GORDON.-Suppose it were a federal law, the Attorney-General of any of the states
could intervene in an actual suit, or place an abstract question before the High Court.
Mr. SYMON.-The state would not bother its head if the law only affected a few
individuals.
Mr. GORDON.-If the law only affected a few individuals, the state might not intervene,
but it is possible that a law referring to only a few individuals may involve the benefit of the
whole of the community.
[start page 1683]
Mr. SYMON.-It is not a law if it is ultra vires.
Mr. GORDON.-It would be law by acquiescence. It would remain a law until it was
attacked.
And
The question has been asked whether the Parliament cannot make laws affecting the
prerogative. The answer is-"Yes" and "No." The Parliament can make laws affecting

Part 2 Page 65
the prerogative in respect of any matter in which it has express power of legislation or
a power necessarily implied. It cannot make laws affecting the prerogative in matters
with respect to which it has no power to make laws.
Mr. FRASER.-Can it not get authority?
Mr. BARTON.-Not unless it gets the power in this Act.
Considering also the fact that the evidence placed before the magistrate was that there never was
any constitutional valid 2001 federal election as Gazette containing the proclamation was not
published in time, as computer records obtained under FREEDOM OF INFORMATION ACT
proved that the Gazettes’s were still at the Printers on 9 October 2001, even so the Writs were
issued on 8 October 2001, then clearly there were no vacancies on 8 October 2001 for writs to be
issued in regard of the House of Representatives.
Further, while the Commonwealth Director of Public Prosecutions somehow sought to rely upon
the Marshall J 7 November 2001 decision and also upon the Gummow J decision in the Ned
Kelly case, neither of those two decision considered that fact that Victorian Senate elections
legislation required that “not less than eleven days” was to be provided for closure of
nominations.
Therefore the 9 days plus a bit provided for in thew writs were clearly failure to comply with
legislative provisions and for this the Senate writs were invalid, as was set out in the ADDRESS
TO THE COURT provided for the 16 and 17 November 2005 proceedings and now subject to
this appeal for a DE NOVO hearing.
Therefore, the Commonwealth Director of Public Prosecutions will have the onus to prove to this
Court that the relevant Gazette was published prior to the issue of the writs. Failing to prove this
then this Court cannot for this either invoke any jurisdiction. As if the writs were invalid (ULTRA
VIRES) then any purported election held is of no legal force.
More over, where the writs for the House of Representatives also failed to be “shall not less then
10 days” then for this those writs were also without legal force for this also, and no valid election
took place.
When I discovered on 20 October 2001 that there were irregularities with the writs issued, I then
forwarded emails to the Australian Electoral Commission, Mr John Howard and many other
Members of Parliament about this. The Australian electoral commission indicated in its 25
October 2001 response that the appropriate course to be followed was to seek matters to be heard
before the Federal Court. Just that at the 7 November 2001 hearing then Mr Peter Hanks QC
misled the Court that it has no legal jurisdiction, etc.
Marshall J then refusing to hear the matter upon its merits, and the High Court of Australia
refusing to hear an appeal, even so constitutionally there was a right of appeal to the High Court
of Australia for a refusal by a Federal Court to deal with a Section 75(v) application for
mandamus, prohibition, etc.
Bodney v Westralia Airports Corporation Pty Ltd [2000] FCA 1609 (13 November 2000).
The Governor-General might direct that land be acquired by compulsory process (s
15(1)). The next step was the publication of a notification in the Gazette declaring
"that the land has been acquired under HYPERLINK
"http://www.austlii.edu.au/au/legis/wa/consol_act/tola1893160/" this Act for the
public purpose therein expressed" (s 15(2)). Upon publication of the notification, the
land, by force of HYPERLINK
"http://www.austlii.edu.au/au/legis/wa/consol_act/tola1893160/" the Act , was
Part 2 Page 66
vested in the Commonwealth "freed and discharged from all trusts, obligations,
estates, interests, contracts, licences, charges, rates and easements" (s 16); and the
estate and interest of every person entitled to the land (including the title of the State
to any Crown land) was converted into a claim for compensation (s 17). After
publication of the notification, a copy was required to be served upon the owners of
the land "or such of them as can with reasonable diligence be ascertained" (s 18).
32 For present purposes, an important aspect of that scheme is that no notification to
owners was required before the publication in the Gazette; and the publication in the
Gazette vested the land in the Commonwealth and converted former estates or
interests in the land into claims for compensation. The scheme excludes the possibility
that a failure to notify owners under s 18 would prevent the acquisition from
becoming effective.
Where the Commonwealth acquired land by compulsory process, extinguishment took
place on the occurrence of the event which vested title in the Commonwealth: that is,
the publication of the notice in the Gazette.
Re: AUSTRALIAN CAPITAL EQUITY PTY. LTD. And: ROGER DAVID BARNARD
BEALE, SECRETARY TO THE DEPARTMENT OF TRANSPORT AND
COMMUNICATIONS; ROBERT LINDSAY COLLINS, MINISTER OF STATE FOR
TRANSPORT AND COMMUNICATIONS and THE COMMONWEALTH OF AUSTRALIA
No. WA G14 of 1993 FED No. 141 Legislation (1993) 114 ALR 50 (1993) 41 FCR 242 (1993) 30
ALD 849 (extract)
His Honour concluded that in the case before him the
publication of the instrument was essential to the valid exercise of the power
and that no distinction could be drawn between the publication of the notice
and the exercise of the power.
At HYPERLINK "http://www.dofa.gov.au/infoaccess/informan/about_gazettes.html"
http://www.dofa.gov.au/infoaccess/informan/about_gazettes.html the following is provided
by Ausinfo – Commonwealth Gazettes of the Department of Finance and Administration;
Special Gazettes
Contains notices that would normally appear in any of the above Gazettes but which
are produced on demand when customers are unable to wait for the next Government
Notices Gazette to publish their notice.
Ben Ward & Ors v State of Western Australia & Ors [1998] 1478 FCA (24 November 1998).
As stated above in respect of pastoral leases, re-entry was effected by notice in the
Government Gazette (WA)
If it were proposed to grant a lease for a term longer than ten years, wide publication
of that intent was to be given by notice published in four consecutive numbers of the
Government Gazette (WA), the first publication to be at least one month before
the grant. The term of the lease was not to exceed twenty-one years.
Two special leases granted under the HYPERLINK
"http://www.austlii.edu.au/au/legis/wa/consol_act/la193348/" Land Act 1933
(WA) for grazing purposes were said to have been issued in respect of land in the
claim area. Neither lease is current. Grazing is not a purpose specified in
HYPERLINK "http://www.austlii.edu.au/au/legis/wa/consol_act/la193348/s116.html"
s 116 of the HYPERLINK

Part 2 Page 67
(WA) and it must be assumed that it was a purpose approved by the Governor by
notice in the Government Gazette
Formal notice of cancellation of the lease was published in the Government Gazette
(WA) in 1996.
That the Act Interpretation Act 1901 refer to;
16A References to the Governor-General
Where, in an Act, the Governor-General is referred to, the reference shall, unless
the contrary intention appears, be deemed to include:
(a) the person for the time being administering the
Government of the Commonwealth; or
(b) where the reference occurs in or in relation to a
provision conferring on the Governor-General a power or function
which the Governor-General or the person administering the
Government of the Commonwealth has for the time being assigned
to a person as his deputy, that last-mentioned person in his capacity
as deputy;
and shall, unless the contrary intention appears, be read as referring to the
Governor-General, or a person so deemed to be included in the reference, acting
with the advice of the Executive Council.
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
The provisions of this Constitution referring to the Governor-General in Council shall
be construed as referring to the Governor-General acting with the advice of the
Federal Executive Council.
The Commonwealth of Australia Constitution Act as such must be read in accordance to the legal
provisions of the Section 17 of the Act Interpretations Act 1901, which under the heading “17
Constitutional and official definitions” refers to “Proclamation shall mean Proclamation by the
Governor-General published in the Gazette;” as such referred to in Section 12 and Section 32 of the
Commonwealth Constitution must mean that the writ or writs can’t be issued until after the
proclamation of the dissolution of either or both Houses of the Parliament has been published in the
Gazette.
17 Constitutional and official definitions [see Note 2]
In any Act, unless the contrary intention appears:
(a) Australia or the Commonwealth means the
Commonwealth of Australia and, when used in a geographical
sense, includes the Territory of Christmas Island and the Territory
of Cocos (Keeling) Islands, but does not include any other external
Territory;
(c) The Constitution shall mean the Constitution of the
Commonwealth;
(d) The Constitution Act shall mean The Commonwealth of
Australia Constitution Act;
(e) The Parliament shall mean the Parliament of the
Commonwealth;
(g) The Executive Council shall mean the Federal
Executive Council;
(j) Proclamation shall mean Proclamation by the Governor-
Part 2 Page 68
General published in the Gazette;
(m)Gazette means the Commonwealth of Australia Gazette, and
includes the Australian Government Gazette published during the
period commencing on 1 July 1973 and ending immediately before
the commencement of subsection 5(2) of the Acts Interpretation
Amendment Act 1976;
Publication being the act of publishing it then must be held that where a Gazette is not
published until a certain date, irrespective if printed, then the date of actual publication
must be held relevant as being the date of the Gazette. This, as the public and others can’t
be aware of what might be printed in a Gazette where the Government withholds the
publication of a Gazette. To allow for such tactics would mean that a government can print
its Gazette and deliberately withhold it from publication until a certain time frame has
been passed as to avoid scrutiny or any other action the government of the Day might wish
to avoid or limit. As such, not the printing but the actual publication of the Gazette must be
deemed to be the date of the Gazette. Meaning that the date of the actual publication of
the Proclamations were 17 October 2001 being the day of the publication of the said
Gazette. Meaning that the Publication of the dissolution of the House of Representatives
backdated to the 8th day of October 2001 well before the Proclamation was published on
the 17th day of October 2001 of the prorogue of the Parliament was NULL AND VOID
and so the issue of the writs for the House of Representatives and that of the Senate of the
Territories as they couldn’t be issued prior to the publication of the dissolution of the
House of Representatives.
In this case the special Gazette dated 8 October 2001 wasn’t even published with the 10th
day of October Government Notice Gazette known as GN40 but it was strangely held
until GN41 being published on the 17th day of October 2001. Being it an error of staff or
not, it hardly can be accepted that the non publication for so long until 17 October 2001
could be accepted. The Government Printers might very well print a Gazette but change its
content prior to publication, such as deleting parts and/or adding parts but in any event the
Gazette has no meaning until it is actually published. Perhaps a comparison can be made
alike an Affidavit that isn’t an Affidavit until it is sworn and filed with the Court before it
has any legal effect. The mere producing of an DRAFT affidavit without it being filed
would deny it any legal status in court proceedings for litigation purposes as where it
hasn’t been filed and so neither could have been served the other party entitled to be
aware of the content of any Affidavit relied upon by an opposing party is entitled to object
to any material not part material of proceedings in the proper manner.
The very purpose of Gazetting matters is as to make it official and in Victoria the supreme
Court of Victoria actually found that the failure by the Victorian Government to have the
Gazette publish the new Act (Albert Park racing) then it was not legally enforceable
against the protesters. Likewise where the Proclamation wasn’t published until 17 October
2001 no action could be taken prior to publication as if the House had been dissolved.
That the Act Interpretation Act 1901 clearly binds the Crown, by this the Governor-General also.
2 Application of Act
(1)Except so far as the contrary intention appears, this Act applies to all Acts,
including this Act.
(2) This Act shall bind the Crown.
That the Act Interpretation Act 1901 also states;
6 Evidence of date of assent or proclamation
The date appearing on the copy of an Act printed by the
Government Printer, and purporting to be the date on which the Governor-General
Part 2 Page 69
assented thereto, or made known the King’s assent, shall be evidence that such date
was the date on which the Governor-General so assented or made known the
King’s assent, and shall be judicially noticed.
There is clear evidence rebutting that the said date of 8 October 2001 the document was not
published, and was an attachment for publication on the 17th day of October 2001, then Section 6
does not appear to apply as it isn’t dealing with the “publishing” of the Gazette but with a date of
an Act.
WESTERN AUSTRALIA v_ THE COMMONWEALTH; NEW SOUTH WALES v_ THE
COMMONWEALTH ; QUEENSLAND v_ THE COMMONWEALTH (1975) 134 CLR 201.
18. No attack is made in these submissions on the validity or effectiveness of the
proclamation of the double dissolution. It is submitted, and in my opinion correctly
submitted, in this connexion that the power simultaneously to dissolve both Houses of the
Parliament and the power subsequently to convene a joint sitting are statutory and not
prerogative powers. The validity of the proclamation convening the joint sitting is attacked
but the submissions to which I have so far referred do not depend on the suggested invalidity
of the proclamation. (at p219)
What is clear is that one can dispute the validity of the proclamation as well as the validity of
writs.
WESTERN AUSTRALIA v_ THE COMMONWEALTH ; NEW SOUTH WALES v_ THE
COMMONWEALTH ; QUEENSLAND v_ THE COMMONWEALTH (1975) 134 CLR 201
and his Excellency has no power to increase or diminish those powers or duties.
VICTORIA v. THE COMMONWEALTH AND CONNOR; NEW SOUTH WALES v. THE
COMMONWEALTH; QUEENSLAND v. THE COMMONWEALTH; WESTERN
AUSTRALIA v. THE COMMONWEALTH (1975) 134 CLR 81
Following the averment
the proclamation continues: "Now therefore, I (The Governor-General in office)
does by this my Proclamation dissolve the House of Representatives”? (At p129)
If the Senate were in fact dissolved, and if thereafter
writs for an election were issued, the election was held and a new Parliament
was summoned to meet, I can see no difficulty in holding that the new
Parliament would have validly assembled. This of course is not to suggest
that this Court could not intervene to uphold the Constitution and prevent an
invalid proclamation for the dissolution of the Senate from being given
effect. However, these questions need not be further discussed.
THE QUEEN v. PEARSON; Ex parte SIPKA (1983) 152 CLR 254 Parliamentary Elections (Cth)
4. Usually when a federal election is impending many of the hundreds of
thousands of persons who have become qualified by naturalization or attaining
the age of eighteen years or otherwise but are not enrolled, become enrolled
before the writs are issued. This is because, apart from the obligation to
enrol (see s. 42, Commonwealth Electoral Act) there is usually some reasonable
warning that the election is imminent. (at p266)
5. In accordance with constitutional practice a dissolution of the House of
Representatives or of both Houses occurs only on the advice to the
Governor-General of the Prime Minister. It is well known that during the
latter part of 1982 and early 1983 the Prime Minister, in repeated
announcements which were widely reported, stated that there would not be an
Part 2 Page 70
early election and towards the end of that period, that he was exploring the
possibility of an election in 1984. (See, e.g., The Australian, 3 February
1983.) However without any prior public notice the Prime Minister announced in
the late afternoon of 3 February 1983, that on his advice, the
Governor-General had that day agreed to a double dissolution of the Senate and
the House of Representatives; that the writs for the election would be issued
on 4 February 1983, the date for nominations would be fixed as 19 February
1983; for the polling day, as 5 March 1983, and for the return of the writs,
on or before 5 May 1983. Proclamations to this effect were issued on 4
February 1983. (at p266)
6. Thus, although s. 32 of the Constitution allows for issue within ten days,
the writs were issued on the same day as the proclamation of the dissolution.
Although that was done in 1914, the practice since then has been to allow a
space of some days between the proclamation of a double dissolution and the
issue of writs for the elections. In 1951 the writs were issued nine days
after the proclamation; in 1974 the writs were issued nine days after the
proclamation; in 1975 the writs for four States were issued six days after the
proclamation and the writs for the other two States were issued ten days after
the proclamation. (See Commonwealth Gazettes of 19 March 1951, 4 April 1974
and 11 November 1975.) (at p266)
What no one ever seemed to be aware of is that the Framers of the Constitution indicated that no
one could act upon a proclamation unless it was first published in the Gazette. It is not the day a
proclamation is signed that determines the ability to act upon the proclamation but when it is
actually available to the general public by being published. So to say, available over the counter.
Again;
However without any prior public notice the Prime Minister announced in
the late afternoon of 3 February 1983, that on his advice, the
Governor-General had that day agreed to a double dissolution of the Senate and
the House of Representatives; that the writs for the election would be issued
on 4 February 1983, the date for nominations would be fixed as 19 February
1983; for the polling day, as 5 March 1983, and for the return of the writs,
on or before 5 May 1983. Proclamations to this effect were issued on 4
February 1983. (at p266)
As such, while the Governor-General had signed on 3 February 1983 the proclamation, it did not
come into effect until it was published in the Gazette on 4 February 1983.
Bodney v Westralia Airports Corporation Pty Ltd [2000] FCA 1609 (13 November 2000).
Mayors and councils were elected (Pt IV). Part VIII conferred on a council power to
make by-laws upon a wide range of matters; by-laws came into effect when confirmed
by the Governor and published in the Gazette (s 186).
Re: AUSTRALIAN CAPITAL EQUITY PTY. LTD. And: ROGER DAVID BARNARD
BEALE, SECRETARY TO THE DEPARTMENT OF TRANSPORT AND
COMMUNICATIONS; ROBERT LINDSAY COLLINS, MINISTER OF STATE FOR
TRANSPORT AND COMMUNICATIONS and THE COMMONWEALTH OF
AUSTRALIA No. WA G14 of 1993 FED No. 141 Legislation (1993) 114 ALR 50 (1993)
41 FCR 242 (1993) 30 ALD 849 (extract)

Part 2 Page 71
His Honour concluded that in the case before
him the publication of the instrument was
essential to the valid exercise of the power and
that no distinction could be drawn between the
publication of the notice and the exercise of the
power.
The following clearly refers to “the date of the Gazette wherein such
notification is first published” being the relevant date and not the date
of the Gazette. Albeit, in normal circumstances one might assume
that the Gazette shall bear the date of the publication, it has been
found that at least with S421 the Gazette was never published as
such.
New South Wales Consolidated Acts
OATHS ACT 1900 - SECT 16
16 To be notified in Gazette
From and after the expiration of twenty-one days next following the date of
the Gazette wherein such notification is first published the provisions of
this Part shall extend and apply to every case, office, or department
specified in such notification.
The evidence obtained from the Commonwealth Gazette clearly dispute the date of S421 of 8
October 2001 being correct as it wasn’t published until 22 October 2001 in Tasmania and so
S421 ought to have been dated 22 October 2001 be held to be so for Tasmania.
Victorian Consolidated Legislation

EVIDENCE ACT 1958 - SECT 62
Proof of Government Gazette
62. Proof of HYPERLINK "http://www.austlii.edu.au/cgi-
bin/disp.pl/au/legis/vic/del/consol_act/ea195880/s59.html" \l "government_gazette"
Government Gazette
(1) The mere production of a paper purporting to be the HYPERLINK
"http://www.austlii.edu.au/cgi-
Government Gazette of
any HYPERLINK "http://www.austlii.edu.au/cgi-
bin/disp.pl/au/legis/vic/del/consol_act/ea195880/s59.html" \l "australasian_state"
Australasian State shall be prima facie evidence that such paper is such
HYPERLINK "http://www.austlii.edu.au/cgi-
Government Gazette and that it was published in such State on the day on
which
the same bears date.
(2) The mere production of a paper purporting to be printed by the
Part 2 Page 72
HYPERLINK "http://www.austlii.edu.au/cgi-
bin/disp.pl/au/legis/vic/del/consol_act/ea195880/s59.html" \l "government_printer"
government printer of any HYPERLINK "http://www.austlii.edu.au/cgi-
bin/disp.pl/au/legis/vic/del/consol_act/ea195880/s59.html" \l "australasian_state"
Australasian State or by the authority of the
Government of any such State shall be prima facie evidence that such paper was
printed by such HYPERLINK "http://www.austlii.edu.au/cgi-
bin/disp.pl/au/legis/vic/del/consol_act/ea195880/s59.html" \l "government_printer"
government printer or by such authority.
It does not include Commonwealth, and in any event no gazette was filed by the prosecutor to
prove publication printed by the Government Printer, as in fact counsel for he Commonwealth
DPP somehow having filed a Special Gazette s421 then argued there was no need for it, after it
was exposed by the Defendant that it did not have “Government printers” on it!
That Special Gazette S421 8 October publication doesn’t exist as such, as it

was published on 22 October 2001 in Tasmania.
ACT Numbered Acts and Ordinances
EVIDENCE (LAWS AND INSTRUMENTS) ORDINANCE 1989 No. 30 of 1989 -
SECT 8
Proof of Gazette
8. A document that purports to be a copy of the Gazette, or an extract from a
copy of the Gazette, and to have been printed by the Government Printer shall,
in the absence of evidence to the contrary, be taken to be a copy of the
Gazette, or an extract from a copy of the Gazette, as the case requires.
ACT Consolidated Legislation

EVIDENCE ACT 1971 - SECT 10B.
Proof of Gazette
A document that purports to be a copy of the Gazette, or an extract from a
copy of the Gazette, and to have been printed by the government printer shall,
in the absence of evidence to the contrary, be taken to be a copy of the
Gazette, or an extract from a copy of the Gazette, as the case requires.
The following Authority indicates the effect of publication of the Gazette

where the notice must be actually published at least one month before the
grant.
Ben Ward & Ors v State of Western Australia & Ors [1998] 1478 FCA (24 November
1998).
As stated above in respect of pastoral leases, re-entry was effected by notice in the
Government Gazette (WA)
If it were proposed to grant a lease for a term longer than ten years, wide publication
of that intent was to be given by notice published in four consecutive numbers of the
Government Gazette (WA), the first publication to be at least one month before
the grant. The term of the lease was not to exceed twenty-one years.
Two special leases granted under the HYPERLINK
(WA) for grazing purposes were said to have been issued in respect of land in the
claim area. Neither lease is current. Grazing is not a purpose specified in
Part 2 Page 73
HYPERLINK "http://www.austlii.edu.au/au/legis/wa/consol_act/la193348/s116.html"
s 116 of the HYPERLINK
(WA) and it must be assumed that it was a purpose approved by the Governor by
notice in the Government Gazette
Formal notice of cancellation of the lease was published in the Government Gazette
(WA) in 1996.
That in the event it was argued that Section 48(1) were to apply to
the proclamation then “(iv) in any other case—the date of notification”
the date of notification being the date of the actual publication of the
Gazette would be deemed to be the date of notification. This, as no
one could be deemed to be duly notified unless the Gazette was
actually published.
The power to declare if election was valid or not
The Magistrate on 17 November 2005 ruled that he had no power to decide if Mr. John Howard
was validly elected Prime Minister in 2001, however I view that when the Commonwealth
Director of Public Prosecutions placed the case before the Court then by this the Court has the
power to determine the validity of the purported election. After all, if there was no valid election
being held then neither could any provisions of the Commonwealth Electoral Act 1918 being
invoked to pursue prosecutions in that regard.
The validity of the elections held relies upon the validity of the election process and/or the validity
of the process leading up to being able to hold a valid election.
The validity of an election and the right of elected Senators can be and has been disputed without
involvement of the Court of Disputed Returns, for example, in regard of the right of Senators for
Territories to vote in the Senate.
This is a criminal case and as such the onus is upon the Commonwealth Director of Public
Prosecutions to prove jurisdiction and to disprove any objections I placed to the Court as to the
validity of the purported Federal election.
As such the refusal by the magistrate to determine these matters of “citizenship”, the validity of
the purported election, etc, means that the Court never could have invoked jurisdiction to hear and
determine the charges, hence, any conviction was without legal force for this also.
There can be absolutely no doubt that I pursued various ways to seek election to be held in a valid
and proper manner, and having legal proceedings on foot at the time the purported federal
elections were held then I was well entitled in that regard refusing to vote in such vexatious
election.
This, besides the fact that as a “constitutionalist” I am well aware that the Framers of the
Constitution refused to provide for compulsory registration and voting when this was submitted
as an amendment by Mr Gordon in 1897.
And, the British Parliament when passing the Bill, now known as the Commonwealth of
Australia Constitution Act 1900 (UK), did so having been kept informed by Hansard records
which where ongoing provided by the Convention, through the Governor of N.S.W., to the Homes
Office.
Because I was also a candidate in this purported Federal election, albeit did not discover the
invalidity of the publication of the Proclamation and the invalidity of the writs until after closure
of nominations, this in itself cannot be taken to then somehow validate an unconstitutional

Part 2 Page 74
election. Further more, there is no authority on record, to my knowledge, where a Candidate in a
election (purported election) refused to vote.
In my view, it would be absurd for a candidate being forced to vote for opponents. After all, the
very reason I stood as a candidate was that I did not view others to be suitable candidates. As
such, any attempt to force me to vote for opponents would be unconstitutional and ill legal, as I
where the framers of the Constitution refused to make enrolment and voting compulsory then this
is a bar to the Commonwealth of Australia to legislate otherwise.
Likewise, it would be a denial of my PERSONAL LIBERTY EMBEDDED in the Constitution
to be forced to vote contrary to my rights not to do so.
the laws regarding property and personal liberty is still left with the states.
Dr. COCKBURN: I consider that the whole question was summed up at the conference
at Melbourne last year by Sir John Hall, when he said that democracy, which is government
by the people, demands that the government should be within sight and hearing of the
people. Surely the hon. gentleman will not attempt-surely the English language was never
meant to be so twisted as to say that centralisation can in any way be compatible with
democracy or with the power of the people!
Mr. DEAKIN: Gambetta!
Dr. COCKBURN: Local freedom and government by the people are inseparable.
Mr. DEAKIN: Hear, hear!
Dr. COCKBURN: Surely the hon. member does not mean for a moment to assert to the
contrary! Now, a very ingenious argument-an argument which I foresaw at an early stage of
the debate and partly anticipated then-was raised by the hon. member in regard to the War
of Secession. I was speaking of the old parties-the party which was headed by centralisers
such as Hamilton, and the party, headed by Jefferson, for local government or state rights.
After a time, as I mentioned in a former debate, the, party questions got confused, and by
nothing so much as the War of Secession, because then, very strangely, that party which had
always made for liberty and state rights claimed, by a curious irony of fate, as a part of their
right under their claim of state rights to establish and maintain slavery. The party of liberty
became the party of slavery, and the party for centralisation became, by most curious
historical irony, the party in favour of freedom. It was that confusion of thought that entirely
abolished the old lines of parties in America, and as a matter of fact, the parties in America
no longer exist. They were destroyed; all the reason of their existence was destroyed by the
War of Secession. Liberty and slavery got so mixed up that no one knew where they were.
The centralisers were for liberty, the people for local freedom were for slavery, and the
result has been, as has been well stated by Mr. Goldwin Smith, that the issues are so
confused that the two casks representing the old parties, the federalists and the democrats,
no longer retain the odour of the liquor with which [start page 713] they were once filled. So
that any argument taken from that source is very ingenious, but is entirely opposed to fact.
Part 2 Page 75
The whole issue has been traversed and destroyed by that miserable war in which for once
the states rights men happened to be wrong; and, although they were the exponents of
freedom from the very commencement of the Constitution, they set themselves against the
very essence of freedom and personal liberty. I think the hon. gentleman will not
attempt to press that.
Mr. GORDON: I move:
To strike out the words: "or it person qualified to become such elector."
I do this for three reasons
Mr. REID: Give us one.
Mr. GORDON: One is that everyone born in the Commonwealth is qualified to become
an elector.
HON. MEMBERS: Do not make a speech
Mr. GORDON: My chief point is that I think that registration should be made
compulsory. I would not give a man who has lived here for three years without
registration a vote.
Mr. PEACOCK: His name might have dropped off accidentally.
Sir GEORGE TURNER: He may have been away for a trip.
Mr. REID: Withdraw. (Laughter.)
Mr. GORDON: I will ask leave to withdraw the amendment.
Amendment withdrawn.
Mr. HOLDER: I move:
To add to sub-section I. the words "or must have been born within the limits of the
Commonwealth."
Mr. REID: Withdraw. (Laughter.)
Mr. HOLDER: I am not going to make that the sole qualification. It would be sufficient
in the absence of three years' residence.
HON. MEMBERS: Withdraw.
Question-That the words proposed to be added be added-put. Committee divided.
Ayes, 6; Noes, 21. Majority, 15.

Part 2 Page 76
As I understand it postal voting already existed at the time but this was so that Farmers who could
not attend to polling booths could still vote if they desire to do so, however, the Framers of the
Constitution also indicated that many electors would not even vote in referendums.
Therefore, not only did the Framers anticipate that many electors did not desire to vote but they
also opposed compulsory enrolment (registration) and voting.
In all authorities I am aware of about the voting issue I am not aware a single judge ever referred
to this fact that compulsory registration and voting was rejected. Yet, it is clearly EMBEDDED in
the Constitution!
As the Framers of the Constitution also made clear, that once there is an objection then the onus
is upon the Commonwealth of Australia to prove the constitutional validity of the legislation
objected against as it was ULTRA VIRES once there was an objection made. Again, this has
been extensively canvassed in my published books on this issue and I rely upon the content of
those books also.
Section 245 of the Commonwealth Electoral Act 1918 therefore is unconstitutional and is
ULTRA VIRES, without legal force, and as such the Court cannot invoke any jurisdiction in that
regard also. As yet, the Commonwealth Director of Public Prosecutions has not taken any steps to
prove that section 245 is constitutionally valid.
It is not for the Court to assume the validity of the enactment merely because it is enacted by the
Commonwealth of Australia, as this would be bias.
In 1994, I contested the validity of the application of the (then) Cross Vesting Act, but it was not
until 1999 that the High Court of Australia in HCA 27 of 1999 in the Wakim case held that the
Cross Vesting Act was unconstitutional!
Surely it should be avoided that an unconstitutional legislation remains on foot for many years?
THE CONSTITUTIONAL POSITION OF THE GOVERNOR-GENERAL
Another issue is that the Framers of the Constitution made clear that no action could be taken
upon a proclamation unless it was published in the Gazette. The Commonwealth Director of
Public Prosecutions sought to rely upon the Gummow J decision in the Ned Kelly case that the
Commonwealth of Australia cannot interfere with the prerogative powers of the Governor-
General. This is obviously an incorrect claim, as the Hansard records of the Constitution
convention debates themselves reveal otherwise.
Therefore, in addition of any of any constitutional provisions the parliament may legislate that
certain matter may require a proclamation. It can not however interfere with constitutional
requirements such as Section 32 of the Constitution.
Part 2 Page 77
32 Writs for general election

The Governor-General in Council may cause writs to be issued for
general elections of members of the House of Representatives.
After the first general election, the writs shall be issued within ten
days from the expiry of a House of Representatives or from the
proclamation of a dissolution thereof.
Again;
the writs shall be issued within ten
days from the expiry of a House of Representatives or from the
proclamation of a dissolution thereof.
Page 96 & 97 of the ADDRESS TO THE COURT 16-11-2005

Mr. BARTON.-
If we make it read that it shall take place on the date of the proclamation by the Governor-
General it will only take place when the Governor-General will take that action by
publishing a proclamation. Then it would follow the action of the Commonwealth.
Again; will take that action by publishing a proclamation
It shows; “Then it would follow the action of the Commonwealth”!
Section 5 prerogative powers therefore relates to the exercise by the Governor-General to

prorogue the parliament and to dissolve the House of Representatives, but as legislative powers
exist by the parliament to make laws regarding elections, and Section 38 stipulates that with a
“general election” the writs cannot be issued until after the expiry of the House of Representatives
or after the prorogue of the Parliament, then it is clearly well within the powers of the Parliament
to legislate that such writs shall not be issued until they have been published, as was clearly
provided for within the Act Interpretation Act 1901. This, as the issue of the writs, and the terms
of the writs, are legislative powers provided for within the Constitution.
Section 5 is not a stand alone section but clearly by Section 2 subject to the Constitution, and this
means any legislation enacted by the Parliament within its constitutional powers.
It is clear that the Governor-General cannot issue writs in regard of Senate elections for the States,
this as this falls within the scope of constitutional powers of Section 9 and 10 of the Constitution.
This underlines that Section 5 is not an all powerful Section on its own, but must be considered as
to the over all powers provided for within the Constitution!

Part 2 Page 78
Therefore, it must be clear that if the Governor-General “on advise” (to counsel the King)
prorogue the Parliament and dissolve the House of Representatives then this is clearly not a
prerogative power exercised as Sir John Kerr did in 1975, when sacking the Withlam government,
which was then without such “advise”! it cannot be held that a Governor-General is subject to the
“advise” of the Federal executive as to calling a “general election” and then somehow not being
subjected to legislative provisions enacted within constitutional powers!
Section 5 therefore can be exercised in two manners. The Governor-General may prorogue the
parliament, and may in like manner dissolve the House of Representatives, “by Proclamation or
otherwise”.
Here is where the real issue lies;
by Proclamation or otherwise
it is clear that in this case, the Governor-General “on advise” of the Prime Minister then
prorogued the Parliament and dissolved the House of Representatives and did not “otherwise” by
doing it on his own account without the advise of the Executive to simply Prorogue the parliament
and dissolve the House of Representatives, being it because, for example, the entire cabinet had
been killed in a massive attack or other accident and as such there was no executive to give
“advise” for seeking a prorogue of the Parliament and the dissolution of the House of
Representatives.
Therefore, once the Governor-General was “acting” upon the “advise” of the Federal Executive
(Prime Minister in this case) to issue a Proclamation to prorogue the Parliament and to dissolve
the House of Representatives then the Prerogative powers exercised clearly was subject to the
legislative powers provided for by the Constitution to the parliament and not that the governor-
General, so to say, can go out on a limb and make out whatever kind of writs he desires, such as
calling for the elections to be held immediately, as clearly how the elections are conducted was a
parliament legislative powers. The issue of the writs and not the content of the writs as to the
modus operandi of the elections procedure was what fell within prerogative powers of the
governor-General other then the writs of the States which fell within the prerogative powers of the
State Governors subject to the legislative powers of the State parliaments.
Therefore, the prerogative powers of the Governor-General and/or the Governors are limited in
the issue of the writs subject to the legislative powers of the respective parliaments.
Because the proclamation was not at all published on 8 October 2001 as computer records
obtained under the FREEDOM OF INFORMATION ACT has proven, then the writs in regard
of the House of Representatives were invalid for this also and of no legal force.
If the purported federal election in 2001 was without legal force, then not as single Member of
Parliament then could have been elected in regard of those purported elections held on 10
November 2001. meaning also that there was neither a Prime Minister to advise the Governor-
General for the 2004 federal election. Hence, no constitutional valid election was then held either
for this and other reasons set out above.
The problem the Commonwealth Director of Public Prosecutions is facing is that since 4-12-2002
I clearly opposed the validity of the purported 2001 election and as such it remains ULTRA
VIRES where the Commonwealth Director of Public Prosecutions failed to obtain a judgment
otherwise proving it was constitutionally valid. The refusal by the Magistrate to determine the
validity on the basis that there was no judicial power clearly cannot be accepted.

Part 2 Page 79
This is a criminal case instituted by the Commonwealth
Director of Public Prosecutions and as such by this has
implied given the authority to the Courts to deal with
the validity of the purported elections.
With the 2004 purported Federal election the added issue is also that no one in his right mind can
demand or otherwise force me to vote for what I consider a war criminal, being Mr John Howard,
likewise so for any of his political allies.
The position of “Prime Minister” does not exist in the written Constitution. However, as a
“constitutionalist” I am well aware that the framers of the Constitution intended there be a Prime
Minister, albeit with limited powers. As they made clear the power to declare War or Peace rest
with the Monarch and so by the Governor-General and this was only to be acted upon by a
Declaration of War if it involved going to war. Hence, the armed invasion into Afghanistan and
Iraq was unconstitutional as no DECLARATION OF WAR was ever publicised in the Gazette.
As a matter of fact, I understand it was TREACHERY within section 24AA of the Crimes Act
(Cth) for the Prime minister and others to authorise a war against “friendly” nations, as they were
in view they had not actually attacked us and neither had the governor-General issued a
Declaration of War to placed them to be enemies.
Mr. BARTON: Which goes to show that the exercise of the prerogative, al. though there
is nothing in statute law to say it must be exercised on the advice of a minister, must still
take place on the advice of a minister, and that that minister is responsible for its exercise.
This is what the author says to some of these matters:
The change, it will probably be conceded, met with the approval, not only of the
Commons, but of the electors. But it will equally be conceded that, bad the alteration
required statutory authority, the system of purchase might have continued in force up to the
present day.
****
The existence of the prerogative enabled the Ministry in this particular instance to give
immediate effect to the wishes of the electors, and this is the result which, under the
circumstances of modern politics, the survival of the prerogative will in every instance
produce. The prerogatives of the Crown have become the privileges of the people.
Mr. REID: Hear, hear.
And anyone who wants to see how widely these privileges may conceivably be stretched
as the House of Commons becomes more and more the direct representative of the true
Sovereign,
being a Sovereign Chamber itself, mind:
Should weigh well the words in which Bagehot describes the powers which can still
legally be exercised by the Crown without consulting Parliament; and remember that these
Part 2 Page 80
powers can now be exercised by a Cabinet who are really servants, not of the Crown, but of
the representative Chamber, which in its turn obeys the behests of the electors.
Then there is a passage from Bagehot's book on the English Constitution, pages 35-6 of the
introduction, which I might as well read also, because it will tend to shorten argument on
my part:
I said in this book that it would very much surprise people if they were only told how
many things the Queen could do without consulting Parliament, and it certainly has so
proved, for when the Queen abolished purchase in the army by an act of prerogative (after
the Lords had rejected the Bill for doing so) there was a great and general astonishment.
Astonishment at the fact that a Minister could exercise the powers of the Crown by merely
advising the Queen to issue her royal warrant. He goes on:
But this is nothing to what the Queen can by law do without consulting Parliament. Not to
mention other things, she could disband the army (by law she cannot engage more than a
certain number of men, but she is not obliged to engage any men); she could dismiss all the
officers, from the general commanding-in-chief downwards; she could dismiss all the
sailors too; she could send off all our ships of war and all our naval stores; she could make
a peace by the sacrifice of Cornwall, and begin a war for the conquest of Brittany. She
could make every citizen in the United Kingdom, male or female, a peer; she could make
every parish in the United Kingdom a "university;" she could dismiss most of the civil
servants; she could pardon all offenders. In a word, the Queen could by prerogative upset all
the action of civil government within the government, could disgrace the nation by a bad
peace or war, and could, by disbanding our forces, whether land or sea, leave us
defenceless against foreign nations.
All that Dicey has to add to that is this:
If Government by Parliament is ever transtransformed into Government by the House of

Commons, the transformation will, it may be conjectured, be effected by use of the
prerogatives of the Crown.
All that passage goes to show this, that every prerogative which the Queen retains is
retained in trust for the people, and it does not matter whether she is told in the Statute that
she is to exercise that prerogative by the advice of the Executive Council or not, if she is
given the power in the Statute she can only exercise that power of prerogative by and on
the advice of the Ministers. In other words, if you have a Statute embodying a
Constitution, or if you have a Constitution in [start page 913] which the moving power is
responsible government, in one case or the other, whether acting as a prerogative or in
Executive, there must be a Minister responsible for the action to the people. And that is the
principle embodied in this Bill as drawn. We shall be told if we alter the drafting of it in this
particular, if we say we are not aware of the distinction between the Acts which are assumed
to be prerogative and which cannot be received without Executive advice, if we say that we
do not know the distinction between these, we shall be told how the distinction would be
made every time. The words:
With the advice of the Federal Council
would be struck out and the words:

Part 2 Page 81
The Queen
or
The Governor-General
would be left. There will be this little further result: We shall be told that we did not know
how to draft an Act of Parliament because we did not have sufficient constitutional
knowledge. It is all very well for my hon. friend to propose an amendment, but if the Bill is
accepted as drawn he can take this conclusion: that all executive powers must be in trust for
the people, because every Constitution has been workable only by responsible government.
As there is at the end of clause 61 provision which makes what my hon. friend desires
safeguarded there is no more contest needed about the matter. We have provided in clause
61 that officers shall be members of the Federal Executive Council and shall be the Queen's
Ministers of the State for the Commonwealth; that after the first general election no Minister
of State shall hold office for a longer period than three calendar months, unless he shall be
or become a member of one of the Houses of Parliament; and that Ministers of State shall be
in the Parliament, and that is the hold by which Parliament, if there were no other hold,
would make them responsible to the people. This Act, as it was, would have made the
Ministers responsible to the people, and have given us cabinet government responsible to
the people. I do not think there is need for further discussion. We can take the clause as
drawn.
Again;
she can only exercise that power of prerogative by and on the advice of the Ministers.
It clearly shows that Gummow J erred in the Ned Kelly case that there is no powers to legislate in
regard of the prerogative, where in fact the prerogative is to be exercised with the advise of the
ministers concerned, albeit, the Monarch is not bound to accept that advise and may act contrary
to the advise obtained.
Mr. CARRUTHERS:
Mr. Barton first of all recites Dicey to show what occurs under the unwritten
Constitution of England. But here we are framing a written Constitution. When once
that Constitution is framed we cannot get behind it.
And
Mr. CARRUTHERS:
This is a Constitution which the unlettered people of the community ought to be able to
understand.
Essentially what Mr Carruthers was making clear is that one cannot go behind the written
Constitution as to seek to imply some powers that are not provided for in the written
Constitution.
One can use as aid the unwritten constitution, as recorded in the Hansard of the Constitution
Convention Debates as to the intentions of the framers, to explain the written Constitution, but
one cannot assume some power, such as INDEPENDENCE where none existed in the first place.
Again;
Mr. CARRUTHERS:
Part 2 Page 82
This is a Constitution which the unlettered people of the community ought to be able to
understand.
Therefore, where the Constitution provided for the line of successors of the British Monarchy
then whatever the High Court of Australia seeks to make out of in Sue v Hill it cannot for one of
iota affect how constitutional provisions apply as there was no constitutional powers for the
Commonwealth of Australia to become INDEPENDENT.
It was my understanding that I would become a naturalized British national and was entitled upon
this in view that the British Parliament had provided for this in subsection 51(xix)!
Likewise, it is my understanding that a Prime Minister has no prerogative powers to declare war
or to authorise the invasion of another nation as only the Minister of Defence can authorise this
upon having had a DECLARATION OF WAR published by the Governor-General in the
gazette or in the alternative if the Commonwealth of Australia was under direct attack by an
enemy, which in itself would be an act of war.
No one therefore can demand that I vote in some purported election and by this warmongering
politicians may claim that they have had support for their conduct, even so people may have voted
out of fear of the tyranny being forced to do so rather then that they desired to do so.
I have a right to drive a motor vehicle including a truck or bus, but no one could force me to drive
a motor vehicle merely because I happened to be licensed to do so. Likewise, no one can force me
to exercise a right, where I view no one is worthy my vote.
HANSARD 8-2-1898 Constitution Convention Debates
Dr. COCKBURN.-It was no part of the original United States Constitution, and it never
has legally become a part of that Constitution; it was simply forced on a recalcitrant people
as a punishment for the part they took in the Civil War. We are not going to have a civil war
here over a racial question.
Mr. ISAACS.-That was one mode of amending the Constitution.
Dr. COCKBURN.-By martial law?
Mr. ISAACS.-Yes.
Dr. COCKBURN.-We do not want to imitate that example. We do not want a clause in
our Constitution which could only be carried in America by force [start page 686] of
arms. We cannot imagine a condition of things in which we would wish to make such an
amendment of our Constitution. I do not believe we shall ever have such a condition of
things here as will necessitate such a clause in the Constitution. As it formed no part of the
original Constitution of America, as it was only introduced by force of arms and not
according to the legal limits of the Constitution, I do not think we should pay it the
compliment of imitating it here.
Mr. ISAACS.-The honorable member can vote for the present amendment to strike out
certain words.
Dr. COCKBURN.-I am going to vote for an amendment to strike out words whenever I
get the opportunity.

Part 2 Page 83
Mr. WISE (New South Wales).-I would like to make a suggestion in order to facilitate
business. It is that we should temporarily pass the amendment suggested by my learned
friend (Mr. O'Connor), which I understand has the approval of the leader of the Convention,
if the latter will give an assurance that the matter will be thoroughly looked into by the
Drafting Committee.
Mr. BARTON.-Undoubtedly.
Mr. WISE.-It seems to me to be a matter of very great importance. It has not received the
attention it deserves, and it is not quite possible for us in committee to go into the whole
matter fully.
My. KINGSTON.-We may temporarily strike out the clause with the view to the insertion
of a new one.
Mr. WISE.-I do not advocate that course, because to my mind the retention of the clause
is of very great importance. I look upon the clause as necessary to prevent the state
Parliaments from being used as instruments of nullification. Some assertion of that principle
is desirable in the Constitution, though the precise words of it are a matter of doubt and a
matter of drafting. I would suggest that we should pass the amendment of Mr. O'Connor on
the committee undertaking to bring it up again for further consideration if they think fit on
the recommittal of the Bill.
Mr. ISAACS (Victoria).-I hope we will not do that. I think it is far more than a question
of drafting. I think, whatever course we take, we ought to try to have the matter explained as
much as possible at the present moment. If we pass the words which my learned friend (Mr.
O'Connor) has suggested, we shall be raising up adversaries of the Constitution on all hands.
The phrase-"the equal protection of the laws" looks very well, but what does it mean? It
was part and parcel of the 14th amendment of the American Constitution; it was introduced
on account of the negro difficulty. It is not something separate from the other portion, and of
this Dr. Burgess says, at page 217 of the first volume of his work:-
The phrase "equal protection of the laws" has been defined by the court to mean
exemption from legal discrimination on account of race or colour. This provision would
probably, therefore, not be held to cover discriminations in legal standing made for other
reasons; as, for example, on account of age or sex, or mental, or even property
qualifications. The court distinctly affirms that the history of the provision shows it to have
been made to meet only the unnatural discriminations springing from race and colour. If a
discrimination should arise from any previous condition of servitude, I think the court
would regard this as falling under the inhibition. The language of the provision implies this
certainly, if it does not exactly express it.
And the case itself, which was decided in 1879, shows perfectly clearly that it has no
application to our Australian circumstances. The head-note is-
1. The 14th amendment of the Constitution of the United States, considered and held to be
one of a series of constitutional provisions having a common purpose, namely, to secure to a
recently emancipated race, which had been held in slavery through many generations, all the
civil rights that the superior race enjoy, and to give to it the protection of the general
government, in the enjoyment of such rights, whenever they should be denied by the states.
Whether the amendment had other, and if so what, purposes, not decided.

Part 2 Page 84
[start page 687]
2. The amendment not only gave citizenship, and the privileges of citizenship, to persons
of colour, but denied to any state the power to withhold from them the equal protection of
the laws, and invested Congress with power, by appropriate legislation, to enforce its
provisions.
3. The amendment, although prohibitory in terms, confers by necessary implication a

positive immunity, or right, most valuable to persons of the coloured race-the right to
exemption from unfriendly legislation against them distinctively as coloured-exemption
from discriminations, imposed by public authority, which imply legal inferiority in civil
society, lessen the security of their rights, and are steps towards reducing them to the
condition of a subject race.
Mr. HIGGINS.-It protects Chinamen too, I suppose, as well as negroes?
Mr. ISAACS.-It would protect Chinamen in the same way. As I said before, it
prevents discriminations on account of race or colour, whether those discriminations
be by Parliament or by administration. And in the case I referred to, Yick Wo v. Hopkins,
it was held by the Supreme Court that the ordinance of the San Francisco Legislature was
void, and they went on to say further, even if a legislative provision is fair and apparently
equal on the face of it, if it is so administered as to introduce this discrimination, it will be
declared void.
Mr. HIGGINS.-The Act itself.
Mr. ISAACS.-Yes; if it admits of that infringement, and if it is so interpreted by the

Supreme Court of the state as to mean that such a discrimination may be introduced, though
not necessarily, it will be held to be void. That will be found on page 220 of Baker's
Annotated Notes on the Constitution of the United States. If that is so, to put it in plain
language, our factory legislation must be void. I put that one simple statement before
honorable members, and I would ask them how they can expect to get for this Constitution
the support of the workers of this colony or of any other colony, if they are told that all our
factory legislation is to be null and void, and that no such legislation is to be possible in the
future?
Mr. KINGSTON.-That is the special clause relating to Chinese.
Mr. ISAACS.-Yes.
Mr. GLYNN.-Cannot there be special legislation on the subject under clause 53?
Mr. ISAACS.-I forget what was done with that clause.
Mr. OCONNOR.-Some portion of it now appears under clause 52.
Mr. ISAACS.-If it is so, the question of whether we are going to prevent factory
legislation of the kind I referred to will demand very serious consideration. Clause 52, by
the transposition that has been made, will afford an opportunity for discriminating
legislation if the Federal Parliament choose to take advantage of it.

Part 2 Page 85
Mr. GLYNN.-If the Federal Parliament does interfere, why preserve state
legislation?
Mr. ISAACS.-If we retain this clause as it stands, we shall have done no good by
transferring a part of clause 53 to clause 52.
Mr. GLYNN.-It is inconsistent.
Mr. ISAACS.-Yes, because we decided in transferring the provision in clause 53 to

clause 52 to leave the states full power to legislate until overborne by federal legislation. If
we retain this provision that no state is to be permitted under any circumstances to pass such
a law, then what we have decided to be concurrent legislation becomes exclusive legislation
on the part of the Federal Parliament. On that ground, and for the reasons I have stated,
I say that we ought not to insert this provision as to the equal protection of the laws.
That is a phrase that at once commands approbation, but when it comes to be practically
applied it raises up almost insuperable difficulties. With regard to the other part of the
clause, about due process of the law, there is an equal difficulty. I understand that Mr.
O'Connor proposes to introduce that portion. What necessity is there for it? Under our
state Constitutions no attempt has ever been made to subject persons to penalties
without due process of law.
[start page 688]
That provision was likewise introduced into the American Constitutions to protect the
negroes from persecution, and dozens of cases have been brought in the United States courts
to ascertain what was meant by due process of law. At one time it was contended that no
crime could be made punishable in a summary way, but that in every case there would
have to be an indictment and a trial by jury. That was overruled, and it was held that you
might have process by information. If we insert the words "due process of law," they can
only mean the process provided by the state law. If they mean anything else they seriously
impugn and weaken the present provisions of our Constitution. I say that there is no
necessity for these words at all. If anybody could point to anything that any colony had
ever done in the way of attempting to persecute a citizen without due process of law
there would be some reason for this proposal. If we agree to it we shall simply be raising
up obstacles unnecessarily to the scheme of federation. I hope, therefore, that Mr. O'Connor
will not press his amendment.
The amendment was agreed to.
Mr. OCONNOR (New South Wales). I beg now to move-
That the following words be inserted after the word "not"-"deprive any person of life,
liberty, or property without due process of law."
Dr. COCKBURN (South Australia).-Why should these words be inserted? They

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

Part 2 Page 86
Mr. OCONNOR (New South Wales).-I have mentioned before the reasons, and they
appear to me to be very strong, why these words should be retained. The honorable
member will not deny that there should be a guarantee in the Constitution that no
person should be deprived of life, liberty, or property without due process of law. The
simple object of this proposal is to insure that no state shall violate what is one of the first
principles of citizenship.
Mr. KINGSTON.-Is there not that guarantee now?
Mr. OCONNOR.-I do not think so. We are making a Constitution which is to endure,
practically speaking, for all time. We do not know when some wave of popular feeling
may lead a majority in the Parliament of a state to commit an injustice by passing a law that
would deprive citizens of life, liberty, or property without due process of law. If no state
does anything of the kind there will be no harm in this provision, but it is only right that this
protection should be given to every citizen of the Commonwealth.
Sir JOHN FORREST.-Would not the Royal assent be withheld?
Mr. OCONNOR.-I do not know that it would. The Royal assent is practically never
refused to any Bill that deals with our own affairs, and it is highly improbable that it would
be refused under any circumstances.
Mr. ISAACS.-Suppose a state wanted land for railway purposes, and took it
compulsorily, there being a provision in one of the statutes that the amount to be paid should
be determined by arbitration, would not that be taking the land without due process of law?
Mr. OCONNOR.-No, it would not; and, as an honorable member reminds me, there is a
decision on the point. All that is intended is that there shall be some process of law by
which the parties accused must be heard.
Mr. HIGGINS.-Both sides heard.
Mr. OCONNOR.-Yes; and the process of law within that principle may be [start page
689] anything the state thinks fit. This provision simply assures that there shall be
some form by which a person accused will have an opportunity of stating his case
before being deprived of his liberty. Is not that a first principle in criminal law now? I
cannot understand any one objecting to this proposal.
Dr. COCKBURN-Very necessary in a savage race.
Mr. OCONNOR.-With reference to the meaning of the term due process of law, there is
in Baker's Annotated Notes on the Constitution of the United States, page 215, this
statement-
Due process of law does not imply that all trials in the state courts affecting the property
of persons must be by jury. The requirement is met if the trial be in accordance with the
settled course of judicial proceedings, and this is regulated by the law of the state.
If the state law provides that there shall be a due hearing given to the rights of the parties-
Mr. BARTON.-And a judicial determination.

Part 2 Page 87
Mr. OCONNOR.-Yes, and a judicial determination-that is all that is necessary.
Mr. ISAACS.-What is the good of it? It is an admission that it is necessary.
Mr. OCONNOR.-Surely we are not to be prevented from enacting a guarantee of

freedom in our Constitution simply because imputations may be cast upon us that it is
necessary. We do not say that it is necessary. All we say is that no state shall be allowed to
pass these laws.
Mr. ISAACS.-Who asks for the guarantee?
Dr. COCKBURN.-The only country in which the guarantee exists is that in which its
provisions are most frequently violated.
Mr. OCONNOR.-I think that the reason of the proposal is obvious. So long as each state
has to do only with its own citizens it may make what laws it thinks fit, but we are creating
now a new and a larger citizenship. We are giving new rights of citizenship to the whole of
the citizens of the Commonwealth, and we should take care that no man is deprived of
life, liberty, or property, except by due process of law.
HYPERLINK "http://ablemedia.com/ctcweb/showcase/whitakerwords.html" \t "_blank"

http://ablemedia.com/ctcweb/showcase/whitakerwords.html
Magna Carta Charter;
"Nullus liber homo capitur vel imprisonetur, aut disseisiatur, aut utlagetur, aut
exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus,
nisi per legale judicium parium suorum vel per legem terrae." becomes:-
No free man shall be taken indeed imprisoned,

either dispossessed, or outlawed, or exiled, or in any
manner destroyed, nor passed over him, nor sent
over him, except by means of the legal judgment his
own equals indeed the law of the land.
In my view, DUE PROCESS OF LAW does not mean that the judicial officer, such as the
magistrate on 17-11-2005, can disregard objections by refusing to deal with them!
FORCED TO VOTE FOR BOTH HOUSES AND DENIED TO VOTE FOR ONE AT THE
TIME, REGARDLESS IF ONE ELECTION MAY BE INVALID
Another is sue is that where I object even to, say, one election being held, such as the Senate for
the time periods in the writs being in breach of legal provisions, and hence the writ are invalid and
without legal force, then there would be no option for me to go to a polling booth, if that is what I
desired, to vote for the House of Representatives, if I were to hold that the writs were valid,
because the Australian Electoral Commission has simply put a system in place, that one must vote
for both the Senate and the House of Representatives at the same time, and denies any elector to
vote for one in one way and for the other another time or not at all.
There is no legislation in place that allows the Commonwealth Electoral Commission to terrorise,
as I view it to be, electors to force them to vote at the same occasion, as constitutionally and also
Part 2 Page 88
by the provisions of the Commonwealth Electoral Act, even if both elections are held on the same
date, they are for all purposes two different elections.
An elector may have travelling plans within the state and already having made up his/her mind
about who to vote for in the election governing House of Representatives may then do early
voting. However, the elector may desire to seek to find out more as to the candidates standing for
the Senate and may therefore elect not wanting to vote for the Senate until the day of election
being held. Constitutionally, and indeed legally, an elector is entitled to do so but for some
ridiculous strange reason the Australian Electoral Commission refuses this to be allowed, as the
marking off by staff of the Australian Electoral Commission governs allegedly both elections at
the same time, regardless if the elector only desired to vote in the one election.
Likewise, the legislation requires that there “shall not be less than 10 days” in regard of the
nominations for the House of Representatives. Because this is a period of 10 day it means that
weekends cannot be counted, as I have extensively already canvassed in my material already filed
in previous held proceedings that are now before the Court. Yet, one find that on one occasions
the election was called on 24 December and the Australian Electoral Commission nevertheless
applied the “shall not be less than 11 days” (as then was) even so the public holidays and week
end the offices were closed. The Australian Electoral Commissioner who specifically is appointed
to ensure elections are being conducted according to law it the very culprit to deny this to occur.
Hence, it is then remarkable that the Commonwealth Director of Public Prosecutions rather to
have those absurd abnormalities addressed and corrected nevertheless continue vexatious charges
against me the elector would be denied to later vote in the other election held the same day.
In my view the Australian Director of Public Prosecution should perhaps rather pursue charges
against the Australian Electoral Commissioner for acting unlawfully in holding elections contrary
to legal provisions.
Elections are being held for the benefits of the electors so they may choose, if they desire to do so,
a legal representative to act for them, and not that elections are to be held in such manner that the
Australian electoral commissioner can avoid having to work on weekends at the peril of electors
and candidates finding the offices closed during the very period provided for in the relevant
legislation “shall be not less than”. The very term “shall not be less than” is by numerous
Authorities around the world held to be to be a continuous period with the exception of where it
is 10 days or less as then the weekends are not counted as being included in the number of days.
Therefore, besides the issue of the proclamation having been published after the writs were
already issues and as such no writs in regard the House of Representatives for this was valid and
so with legal force as no vacancies existed to issue writs, the writs also failed to have the incorrect
time period on them, in conflict of what the relevant legislation provided for. And even if we were
to overcome these problems the conduct of the Australian Electoral Commission to close its
offices during the “shall not be less” period of 10 days also causes the elections not being held
according to law.
A problem is that the Australian Electoral Commission in its publications refer not to the relevant
time table of the State Senate legislative provisions but rather to the time table of ordinary State
elections, and by this deceive electors, candidates and the Government alike.
In my view the Australian electoral commission conducting elections and having the supervision
of it is a conflict and as I experienced ongoing the Australian Electoral Commission seems to be,
so to say, hell bend to use all legal trickery to circumvent matters to be heard upon their merits
and have matters appropriately addressed rather then to, so to say, sit at the table with any
objector and seek to rectify any of its wrongdoing.
People who are by law entitled to nominate as a candidate, being within the legislated period to do
so are nevertheless denied by the Australian Electoral Commission to do so because the
nomination period is shortened by 1 day or more.
Part 2 Page 89
As the Australian Electoral Commission has admitted to prepare thew writs for the governor-
General then clearly it itself was the cause of writs being incorrectly issued and cannot therefore
rely upon the Governor-General and Governors having issued DEFECTIVE writs, as they were
all the product of the deceptive (if that is the right word for it) conduct of the Australian Electoral
Commission to advise of elections time table.
We then have the added issue of the Australian Electoral Commission to deny an elector to vote
for each election separately!
In that regard there can be NO CASE TO ANSWER, as to any charges, as by the
FRUSTRATION caused by this all I am, as like others, prevented to exercise any rights (if they
were to exist) to vote in the manner as provided for by the Constitution and/or relevant
legislation.
Gillard J of the Supreme Court of Victoria himself has made clear that legislation is in place for
the Court to order cost against lawyers where they cause delays, protracted litigation, etc, uncalled
for. As such, it was appropriate for me to recommend to the Court that it was to order the
Prosecutor to pay $1,000 cost payable to the Salvation Army where they clearly were causing
undue delay in proceedings and protracting proceedings, as after all despite considerable effort
given by me to seek to avoid the vexatious charge regarding the 2001 failing to vote issue, and the
prosecutor submitting to the Court to have the matter adjourned pending a High Court of Australia
determination, which they themselves never so far pursued, then with the order still, on foot and
nevertheless the Commonwealth director of Public Prosecutions ignoring to comply with the
orders and having wrongly obtained a conviction causing further additional litigation then the
legislation providing for cost to be ordered against the lawyers concerned in my view can be
applied and should not be then held against me where it is the parliament that provided for such
kind of orders being made against lawyers who are abusing the legal processes.
As I view it, the charge of failing to vote in the 2001 purported Federal election was utterly
vexatious I then submitted to the Court in 2002, that it ought to order the Commonwealth of
Australia to pay $1,000 to the Salvation Army, where Gillard J also makes clear this can be done.
This was more as some gesture of a payment into the poor box by the Commonwealth of Australia
and that may have then driven home to the Commonwealth of Australia that it must get its act
together and not pursue vexatious litigation. However, the magistrate on 4 December 2002 did not
deal with this at all. Obviously I was not entitled to seek cost on my own behalf in that I conduct
my own defence and cannot claim any cost for legal representation in that regard.
In regard of the vexatious charge for failing to vote in the 2004 federal election I did not at all
repeat my suggestion as to $1,000 being ordered to be payable to the Salvation Army.
I was then horrified that the Commonwealth Director of Public Prosecutions pursued cost against
me for both charges and the magistrate did order cost of $500.00 for each charge payable to the
Commonwealth Director of Public Prosecutions.
As I never sought in relation of the 2004 any form of payment to be made to anyone as such any
order for cost in that regard was an absurdity. In regard of the first charge, I did not seek any
payment for my self and as such in that regard never should in that regard have been ordered to
pay any cost either.
Love v Williams and AEC v Williams
Recognising the significance and novelty of the litigation, and its potential to save other
elections, Foster J agreed that the AEC should pay all the respondents' costs on an
unusually generous indemnity basis, as if the case had been a public interest proceeding
(reported separately in (1994) 54 FCR 383).
Appeal Nos. SA27 and SA37 of 1993 and SA21A and SA30L of 1994 No. ML2944X of 1989

Part 2 Page 90
64. Furthermore, we think it is also at least arguable that his Honour's order for costs of 10
March, 1994, works a substantial injustice to the father. Whilst the sum of $750.00 may not
seem a very large amount, we think that an order for the payment of even such a relatively
modest sum may work a substantial injustice to a person of modest means (as the father
appears to be) particularly if, in principle, no order for costs ought to have been made
against him.
Hansard, Friday 16 August 2002, JSCEM (Joint Standing Committee on Electoral Matters);
QUOTE
Senator ROBERT RAY – I was not going to go to any of the referendum stuff. I just want
to go briefly to electoral litigation. When someone seeks an injunction, do they have to
indemnify the Electoral Commission for damages? Quite often, when you seek
injunctive relief, you have to guarantee that this is going call cost to persons you are
injuncting.
Mr Becker- No.
Senator ROBERT RAY –You don’t have to? This has two sides to it, in fact. It
sometimes inhibits injunctions if you have those penalties. On the other hand, it is
somewhat fairer to the organization that is injuncted. But it does not apply to you; I did
not know that.
Mr Dacey- No, Senator.
Elections are to be “FREE” and if people are being financially penalised as result of the
Commonwealth Director of Public Prosecutions using legal trickery to achieve some conviction
then it throws out for this also the entire democratic system of “FREE” elections.
And here we have another issue.
As a self educated constitutionalist, I am too aware that the Framers of the Constitution made
clear that any breaches or alleged breach of commonwealth law must be heard and determined by
a relevant State Court. What we have however is that the Australian electoral commissioner
demands an elector to give an explaination as to why the elector allegedly has not voted. If the
elector fails to satisfy the Australian electoral commission (so its staff) about reasons given,
regardless if in fact the elector did vote but the staff of the Australian electoral commission by
error marked of the wrong name, then the person is being fined $20.00 and if failing to pay the fin
then this becomes a criminal matter. No such system was provided for win the Constitution that
somehow the Australian Electoral Commissioner could set himself up as some STAR
CHAMBER COURT and determine if a elector ought to be fined or not. It is not relevant if the
Commonwealth of Australia legislated for this, rather what is relevant is that the Framers of the
Constitution made clear that any alleged breach of Commonwealth law must be dealt with by the
relevant State court exercising federal jurisdiction. Hence, the entire process used by the
Australian Electoral Commissioner to elicit information/details of an elector and then use this in
Court as evidence in my view is utterly deplorable and any such alleged evidence must be deemed
to be inadmissible.
We cannot have that the Commonwealth Director of Public Prosecutions, for the Australian
Electoral Commission, comes with dirty hands to this Court and demands that I am punished for
some alleged offence using unconstitutionally/illegally obtained information and having been the
very cause of FRUSTRATION to prevent me in any event to vote even if I desired to vote
according to constitutional and other relevant legal proceedings.
What in effect the Commonwealth Director of Public Prosecution is seeking the Court to do is to
disregard relevant constitutional and other legislative provisions that may be in aid of me and also
Part 2 Page 91
those that may be against the Australian Electoral Commissioner and to merely operate, so to say,
as some RUBBER STAMP to record a conviction.
We also have the fact that constitutionally, , as is embedded in the Constitution, the Governor-
General can only be appointed by Her Majesty the Queen upon recommendation of the Home
Office at Downing Street. This the Framers of the Constitution made very clear as to avoid to
have some , so to say, political lapdog Governor-General to an Australian Prime Minister if the
Australian Prime Minister were to be involved in the appointment. As such, the Queen herself
lacked any constitutional powers, as was purported in the 1986 alleged proclamation, that the
Prime Minister of Australia is involved in recommending the appointment of a Governor-General
or can appoint a Governor-General. As currently Governor-General have not been appointed by
the Queen upon the required recommendation of the Home Office at Downing Street, then clearly
the appointments purportedly by a Queen of Australia upon recommendation of the Australian
Prime minister is unconstitutional and invalid. Hence, any proclamation and writs issued by such
pretend Governor-General is likewise unconstitutional and invalid. For this also any other
exercise of prerogative power by the purported Governor-General.
If the Commonwealth Director of Public Prosecutions seeks to rely upon the constitutional powers
of the Commonwealth of Australia to legislate in regard of elections, then I am well entitled, as I
do, to challenge the validity not just of legislation beyond constitutional powers but the validity of
the appointment of the purported Governor-General. After all, if the appointments of purported
Governor-Generals over the last purported elections being held were all unconstitutional then the
issues of purported proclamations, writs, appointments of Ministers of the Crown, judges etc all
are and remain unconstitutional and invalid.
While the high Court of Australia sought to elaborate about the coming to independence of the
Commonwealth of Australia it never did in fact at all bother to quote the relevant Hansard records
of the Constitution Convention Debates held in 1891, 1897 and 1898 to support its case. It
merely seeks to rely upon some kind of “gradual process”. One then must ask at what date did the
queen have a Governor-General representing her as the British Monarch and at what time did the
Governor-General stop doing so? It can hardly be that this was a gradual change as for purpose of
enactments it is essential to know if legislative provisions were given royal ascent by the British
monarch or not.
As the framers of the Constitution made clear the Governor-General was the link between the
people of Australia and the British Monarchy. Because we are and remain to be governed by a
British constitution act then it is applicable in full force as the Framers intended or we disregard
the entire Constitution and have become a BANANA REPUBLIC where law and order is
whatever anyone desires to make out of it to whatever suits each person best.
The Framers of the Constitution all along contemplated that at some point of time the
Commonwealth of Australia would desire to become an INDEPENDENT nation and they made
clear that the Constitution was flexible and alive as it allowed the people by way of a Section 128
Referendum to decide in the appropriate time for this. The most recent referendum for a
REPUBLIC was rejected and as such a clear message that we are and remain British nationals
under the governance of the British Crown.
If the Courts could take over what a Constitution stands for then we do not need any Constitution
as we leave it up to the judges to play politicians and decide whatever law they want to invoke.
Likewise so with politicians, that if they can change the application of the Constitution
circumventing Section 128 Referendum provisions then why indeed have any Constitution at all?

Part 2 Page 92
Mr. WISE.-Yes. We have been striving all through to erect an independent
Commonwealth with certain clearly-defined subjects of legislation, and to provide very
strictly that the rights of a state should not be impinged upon by the undue exercise of the
powers of the Federal Parliament. In order to prevent that, we have constituted a Supreme
Court to interpret the laws of the Parliament. But the honorable member now comes forward
and says that the Parliament is to make the laws, and that the Ministers of the day are to
interpret them. The Parliament may make what laws it pleases. It may make laws altogether
outside the subject of the matters referred to it by clause 52, but unless in each state there is
a majority sufficiently strong to sway the Ministers in power for the time being, those laws
will not be declared to be ultra vires.
Mr. TRENWITH.-If there is a majority strong enough in any one state that will be
sufficient.
Mr. WISE.-If the Federal Parliament chose to legislate upon, say, the education
question-and the Constitution gives it no power to legislate in regard to that question-the
Ministers for the time being in each state might say-"We are favorable to this law, because
we shall get £100,000 a year, or so much a year, from the Federal Government as a subsidy
for our schools," and thus they might wink at a violation of the Constitution, while no
one could complain. If this is to be allowed, why should we have these elaborate
provisions for the amendment of the Constitution? Why should we not say that the
Constitution may be amended in any way that the Ministries of the several colonies
may unanimously agree? Why have this provision for a referendum? Why consult the
people at all? Why not leave this matter to the Ministers of the day? But the proposal
has a more serious aspect, and for that reason only I will ask permission to occupy a
few minutes in discussing it. Not that I believe that it will be carried, but I think it is an
echo of a widespread misapprehension which prevails outside as to the duties and functions
of the Supreme Court. It very often seems hard to a layman that that which has been enacted
by Parliament should be declared to be illegal by a Supreme Court when the statute is called
into question during litigation between two citizens. It is hard, but like everything else in
politics, it is a choice of evils. The question is: Whether it would not be of much greater
disadvantage to the whole community to bring in the Supreme Court as an interpreter of the
Constitution before any precise case was taken before it, than it is to leave the individual to
suffer the hardship of finding that the Act upon which he relied was really invalid? I will not
use my own language in explaining the position, but, to have it put upon record, I should
like to quote a passage which occurs on pages 154 and 155 of Dicey's Law of the
Constitution. After pointing out that the American Supreme Court exists to interpret the
Constitution, and to see that effect is given to its provisions, the writer goes on to say that-
The power, moreover, of the courts, which maintains the Articles of the Constitution
as the law of the land, and thereby keeps each authority within its proper sphere, is
exerted with an ease and a regularity which has astonished and perplexed continental
critics. The explanation is that the Judges of the United States control the action of the
Constitution, but they perform merely judicial functions, since they never decide
anything but the cases before them. It is natural to say that the Supreme Court
pronounces Acts of Congress invalid, but in fact this is not so. The court never directly
pronounces any opinion whatever upon an Act of Congress.
[start page 1687]
What the court does do is simply to determine A. is or is not entitled to recover

judgment against X.; but in determining that case the court may decide that any Act of

Part 2 Page 93
Congress is not to be taken into account, since it is an Act beyond the constitutional
powers of Congress.
If any one thinks this is a distinction without a difference he shows some ignorance of
politics, and does not understand how much the authority of a court is increased by
confining its action to purely judicial business.
In a book prepared by you, sir, entitled A Manual of Reference for the use of Members of
the National Australasian Convention, to which frequent reference has been made, the
matter is further dealt with. You say, at page 126, in words that I would like to adopt as part
of my argument:-
No doubt the power given is very great, but it is exercised in a manner and by a body
which affords the least possible chance of friction and quarrels between the central
and the provincial governments. A veto by the central authority has to be exercised at
a time when the public attention of the provincial electors is directed to the matter; at
a time when, perhaps, party spirit runs high, when angry passions pervade both
factions, and when the subject-matter is invested with an importance which is not
intrinsic, whereas a declaration by a court that the statute is invalid is withdrawn from
the sphere of politics. Each individual and each state looks upon it that such
declaration is given only in pursuance of the Constitution. Public attention is probably
directed to other matters, and the question has, in many cases, shrunk into its native
insignificance; and "it is to the interest of every man who wishes the Federal
Constitution to be observed that the judgments of the federal tribunals should be
respected, and they take it that the courts are the protectors of the federal compact,
and that the federal compact is, in the long run, the guarantee of the rights of the
separate state."
If the proposal of the honorable member (Mr. Gordon) was carried into effect-though of
that, I think, there is not the slightest chance-it would follow that any person who was
aggrieved by an unconstitutional enactment would have to persuade the Attorney-General of
the state or of the Commonwealth, as the case might be, to in some way set the law in
motion to ascertain the legality of the enactment, If the enactment was one which affected
a matter exciting strong party feeling, the result would be that the abstract question of
its validity would have to be argued before the court at a time when public feeling was
excited, although it would be of the utmost importance that the decision of the court
should be entirely free from all suspicion of political bias. Then, too, the enactment
might be valid in parts and invalid in other parts, or it might be impossible to interpret
it in the abstract. It is impossible to foresee the bearing of a statute upon all possible
cases, and it is only when a case comes for determination before a court that the court
is able to say that in that particular case the statute does or does not afford protection
to the citizen who has relied upon it. The honorable member's proposal would remove at
once the greatest of all safeguards to the impartiality and usefulness of the Federal Court, by
taking away from it its right to deal with matters which are brought, as lawyers term it, to a
distinct issue, and with precise and definite points, in regard to which the full bearing of
every word of the judgment could be appreciated? Instead of the court being able to
determine the legality of an enactment in its bearing upon any particular case, there
would be considerations introduced which were utterly foreign to the atmosphere of
the tribunal, and that would seriously impair the public confidence in a court which,
with us, as in America, will, I believe, prove to be the ultimate protector of the liberties
of the people. Then, too, the amendment is in its form so complicated that its practical
working will be impossible. The honorable member said truly that the Attorney-General
constantly intervenes now. But he intervenes at the expense of the individual. The individual
Part 2 Page 94
presents his case, and gives a guarantee for costs. Under this proposal all that would happen
would be that the individual who wanted to assert [start page 1688] his right would have a
barrier placed between him and the obtaining of justice. He would have to satisfy the
Attorney-General for the time being that he would be able to pay the costs of any action,
and he would have to bring sufficient political pressure to bear upon that officer to get him
to move in the case, and finally he would be left to contest the matter in his own interests
and in his own name. The result would be that the rights and liberties of every citizen in
the community would be placed at the mercy of a chance parliamentary majority.
Mr. GORDON.-That is the position now-the rights and liberties of every individual are at
the mercy of a parliamentary majority.
Mr. WISE.-The honorable member is now speaking of rights in respect to legislation. If

the Parliament of South Australia were to pass a law contravening the Merchant Shipping
Act
Mr. GORDON.-I am not speaking of Imperial legislation.
Mr. WISE.-Suppose the Parliament of South Australia wanted to get rid of the Plimsoll
Mark Act-even though there were a majority it would be invalid, but according to the
honorable member, when, we have here a case exactly analogous, if the Constitution limits
the power of the state, and enacts that certain powers shall belong exclusively to the
Commonwealth Parliament, and that if the state deals with them it invades the authority of
the Commonwealth Parliament, the individual is to have no rights unless he can persuade
the Government of the day to take up his case. It is in the interests of the poorer and
uninfluential classes of the community, it is. in the interests of the minority, that this
amendment should be rejected, because it places an obstacle in the way of obtaining
that justice which ought to be free to every individual in the community.
Mr. HIGGINS (Victoria).-I should like to add my protest against this new clause. I am
bound to say something, because the honorable member (Mr. Gordon) says it is only the
conservative and timid lawyers who would venture to oppose this proposal.
Mr. GORDON.-I did not say that. I said as a rule the legal profession is, according to
Herbert Spencer, a timid and conservative class.
Mr. HIGGINS.-That may be so, and if the honorable member says he did not make that
statement it is all right. Anyhow, I thought he said that only conservative and timid lawyers
would oppose this clause. There is no doubt the intention of the honorable member is
excellent. He wants to diminish litigation. If he can show that this will diminish litigation to
any material extent, and, at the same time, will not involve us in a great many dangers to our
liberties, I will go with him, but he has not shown anything of the sort. As Mr. Wise has
shown, it will throw an unpopular minority into the power of a chance Ministry of the day.
We must see to-day that the rights of individuals, even unpopular individuals, are
preserved in the Constitution. I think Sir John Forrest said that I personally had not got
sufficient respect for the rights of individuals.
Sir JOHN FORREST.-No.
Mr. HIGGINS.-Do I understand him to refer merely to private property?
Sir JOHN FORREST.-Not the same respect as I have.

Part 2 Page 95
Mr. HIGGINS.-I understood the honorable member to put himself on the very highest
pedestal, and by contrast to put me on the very lowest. At all events, I feel that if this were
carried, an unpopular individual, to obtain his rights and liberties, would have to go cap in
hand to and be at the mercy of the Government of the day. I was thinking of the pig-tail
case which occurred in California, and which I alluded to some time ago, where an
abominably unjust law was passed against Chinamen. It was passed to persecute them
in regard to their pig-tails, which they [start page 1689] regard with exceptional
reverence. That law was declared to be unconstitutional as a law passed by a state. I
ask honorable members to consider the great difficulty there would be in getting the Federal
Congress or Federal Executive to interfere in the case of Chinamen, so as to enforce their
rights in such a case. There was an exceptional law which should never have been passed. It
was distinctly a persecuting law. Any practical politician would see the great difficulty there
would be in appealing to a Federal Executive, especially if there was an election
approaching, to enforce the just rights of Chinamen in such a case. The same thing might
happen supposing a federal law were passed which was outside the Constitution.
Supposing that a majority of the state concerned happened to regard the man as unpopular
supposing a law were passed that no one bearing the name of Jones should be admitted into
the state of Virginia, the law might be directed against a certain person named Jones, and it
would be unconstitutional, and Jones could not enforce his rights to go into that state. I ask,
is he to be compelled to go cap in hand to the Attorney-General of the state of Virginia to
enforce his rights? I feel that, with the very best intentions my honorable friend is making
the gravest of mistakes. So far as regards the main purport of the amendment, it would mean
this: That you could only get a point of this sort decided by having a state or
Commonwealth intervening as a party. You would turn judicial questions into political
questions. You would proclaim-"Here is a question between the state and the
Commonwealth; here is a political question"; and you would make the Judges
partisans. It is one of the great advantages of private persons being able to raise these
points, and not the states or the Commonwealth, that you keep the judicial bench free
from the taint of political partisanship. I feel that the more you look at this thing all
round, the more inconsistent it is with the very first principles of justice. It may be said-
Even supposing the law does go beyond the Constitution in some degree, surely it ought not
to be left to a private person to upset it." I say it ought to be upset at once and at the very
earliest point. As soon as ever you find it has gone beyond the bounds you ought to say-
"This thing is illegal." Otherwise you will leave to the Ministry of the day these powers
of which you are so careful, giving them to a majority of the states and to a majority of
the people. You would allow the Ministry of the day to exercise a suspending power as
to whether it would enforce a law or not, which is most dangerous. It is one thing to
induce a Government or Parliament to pass an unjust law, and it is quite another thing to
induce a Government for one excuse or another to hold its hand from acting. What I fear is
that you would often induce the Government to withhold its hand from acting, for fear it
would incur opprobrium or unpopularity. I sincerely hope the amendment will not be
carried.
Mr. GORDON (South Australia).-Of course the objections raised are those I expected,
only I think they might have been put with even greater force. And there is a great deal more
to be said in favour of my motion than I have been able to say. I agree at once with the
interpretation of Mr. Wise that this measure is a simple method of amending the
Constitution by acquiescence. I intended it to be so, and that is not a demerit-it is a merit-of
the proposal. As for the argument that you might as well have no Constitution at all if you
allow amendment by acquiescence, that seems rather wide of the mark. People going into a
partnership lay down the general terms of that partnership, but they may be qualified by
consent. But you must have in your partnership general rules laid down. There are the
general lines laid down in the Constitution, which within certain limits may [start page
Part 2 Page 96
1690] be modified as agreed, so that the honorable and learned gentleman's argument in that
view, I think, fell to the ground. Mr. Higgins enforced the argument as to the rights of the
individual. Now, I have already said that I think those individual rights should be
subordinated to the general rights of the community, and to their interests as expressed in
the law for the time being. I object altogether to the objection that party faction would
govern. What would govern it would be the sense of the community for the time being.
However, as there appears to be no hope of carrying the proposal, I must content myself by
submitting it to the committee.
Mr. Gordon's proposed new clause was negatived.
“AND NOT OTHERWISE”
I did pursue on 2-11-2001 before Finkelstein J of the Federal Court of Australia challenge the
validity of the writs issued, (and later also the validity of the proclamation, as it was too late
published) and so well before the purported Federal election on 10 November 2001 was held, and
hence, I was not disputing the validity of the election result but rather the validity of the writs. If
the writs were defective, and so invalid then there never was any election.
The High Court of Australia in Sue v Hill does elaborate upon the term “AND NOT
OTHERWISE” and it has absolutely nothing to do with not being able to challenge the validity
of an election in any Courts of law, rather that it was relating to that it could no longer be
challenged before the parliament itself, as was originally occurring.
McClure v The Australian Electoral Commission and ORS M119/1998 (27 April 1999)
MR GAGELER: Your Honour should take out of Abbotto the conclusion that his Honour
reached at page 356, where his Honour was doing nothing more, probably, than just
applying to the Act as updated by the inclusion of section 211A, the conclusion of
constitutional validity reached by Chief Justice Gibbs in McKenzie v Commonwealth that his
Honour cites at line 15 on page 356. That is one point your Honour should take out of it. The
other point is at page 357 at about line 32 where his Honour said that:
In argument, the petitioner placed particular reliance on ss 364 and 362(3) of the Act.
Section 364 provides that the Court of Disputed Returns shall be guided by the substantial
merits and good conscience of each case without regard to legal forms or
technicalities.....When that section speaks of the "substantial merits" of the case, it means, of
course, the substantial legal merits of each case rather than what might be perceived to be
the fairness of the law itself.
In my view, the Court of Disputed Returns, is perhaps at best a STAR CHAMBER COURT, in
that it can ignore the proper application of legal provisions and hand down a decision it deems
appropriate in the circumstances. Therefore, a candidate who may lodge a valid objection may
still end losing the case because the Court of Disputed Returns could hold that his number of
votes would make no difference if a new election was ordered and so not worthwhile to pursue.
In fact, where I disputed on 2 November 2001 each and every writ issued by the Governor-
General and every governor for being defective and without legal force, it was beyond the powers
of the Court of Disputed Returns to deal with this matter. It can only deal with one election held
involving the objector. It could not even have dealt with any objection by me against both Senate
and House of Representative elections in the same case, as it is beyond its powers to do so.
When no election or purported election has been held then my challenge commenced on 2
November 2001 to the validity of holding an election on 10 November 2001 clearly was in any
event not to challenge the outcome of the election, as none then existed, but rather the holding of
such election.

Part 2 Page 97
It ought to be understood that at no time was I requested and neither given an opportunity to vote
in any purported 10 November 2001 federal election that was established in accordance to
constitutional and other relevant legal provisions.
If I am caused to be punished and end up with a criminal record for pursuing that elections are
held according to constitutional and other relevant legal provisions then the Courts JUSTICE
system is in a sorry state of affairs.
I am well aware that there is an implied bias by the County Court of Victoria where it shares the
same ABN business registration number as the Justice Department and the magistrates Court of
Victoria against which I appealed its conviction, and this also is a issue of concern to me.
To me it represents to be a STAR CHAMBER COURT which is outlaws under the, so called,
1640 STAR CHAMBER COURT Act and which is part of Victorian legislation, at least when I
last checked the Act Interpretation Act 1980 (Vic).
I refer back to the extensive set out on this matter that I placed on file in my ADDRESS TO THE
COURT filed for the 16 and 17 November 2005 proceedings held before the Magistrates Court of
Victoria at Heidelberg and now being DE NOVO before this Court. For example that the County
court of Victoria, the Magistrates Court of Victoria, the Justice the Department and among many
others the Prostitution Committee are all in the same business by sharing the same ABN
number.
Also to consider;
Title COURTS AND TRIBUNALS LEGISLATION (FURTHER AMENDMENT) BILL

House ASSEMBLY
Activity Second Reading
Members DEAN
Date 16 August 2000
Page 64
16 August 2000 ASSEMBLY
Page 64
COURTS AND TRIBUNALS LEGISLATION (FURTHER

AMENDMENT) BILL
Second reading
Debate resumed from 15 August; motion of Mr HULLS (Attorney-General).
Dr DEAN (Berwick) -- Last night I made mention of a certain portion of the bill that is
perhaps gaining more interest than other sections. I noted that the Attorney-General
has spent most of his contribution to debate on the bill on that particular point rather
than the substance of the bill. That particular point is the removal of the oath to the
Queen from the two oaths of office given by lawyers prior to being admitted to the
Supreme Court.
Recapping, it was suggested that because England had done away with it, therefore
we should.
I noted that that was an interesting approach by the government. I also noted that
those states that do not have the oath to the Queen -- of course, South Australia,
Tasmania, Northern Territory and Queensland do have it -- have not seen fit to
introduce legislation to remove that oath of office. That is the nub of the point I wish
to make in the few minutes that I will talk on the bill.
There is absolutely no mention in the second-reading speech of any agreement by
the judiciary to the removal of the oath to the Queen.
Mr Hulls -- Don t disclose confidences!

Part 2 Page 98
Dr DEAN -- I know from the Attorney-General s past conduct that, while he would not
refer to any particular conversations, if he had the support of the judiciary he would
let everybody know that.
The question then arises of whether he has the support of the judiciary. My
information is that he does not. Therefore, although the opposition does not oppose
the bill it is of the view that it is inappropriate to go ahead with legislation to change
the procedures which have been set up and which are accepted by the courts,
particularly when those courts have not consented to the changes and may not wish
the introduction of legislation to make them. It is a total interference by the
legislature in the procedures of the courts.
It is astounding to take the step of introducing legislation and interfering with the
judicial process on such a small issue, presumably because of a political belief. To not
have the agreement of the judiciary is totally inappropriate. I could understand if
there were a major conflict between the legislature and the judiciary and we could
have it out; however, it is an issue not of major conflict but of political whim.
The fact is that many people still recognise that until Australia becomes a republic the
courts are the Queen s courts, and that therefore the Queen has a role to play; and it
may be traditional. I am happy to state my view that if the courts come to the
conclusion that some people they are admitting to practice may not wish to
Page 65
make a particular oath, I am very happy for the courts to abolish that oath. If they as
courts believe they wish to retain an oath I am not happy that the legislature should
step in and force them to change the situation.
On an issue as trivial as this it is a misunderstanding of the separation of powers to
allow the legislature to instruct the courts on how to go about their internal
procedures -- and this is an internal procedure. When one is admitted to practise as a
barrister and solicitor of the Supreme Court one goes before the Supreme Court and
the justices of the court arrive at the bench to listen to one take the oath of
admission. The bill means that the legislature has stepped into their court and said,
Because I, the Attorney-General, have a political view, I will step into your court and
tell you what you must do about this matter .
I was going to say it is incredibly naive -- I do not want to cast aspersions on anyone
-- but it is beyond belief that someone who has on many occasions espoused
separation of powers and the difference between the legislature and judiciary would
make such a slip. We have been told that the next step will be legislation to tell
courts how people who appear before them may dress. Whether the profession or the
judiciary decide they do or do not want people to wear wigs when they appear before
them, we are told that will be the Attorney-General s next step. One has to ask,
Where will it stop? .
Mr Hulls interjected.
Dr DEAN -- That is a cheap shot but it misses the principle.
I am in favour of the abolition of wigs, particularly in civil matters, but the difference
between me and the Attorney-General is that I will not and would not introduce
legislation, firstly, on such a trivial matter, and secondly, on a matter that tramples
on the jurisdiction of the court. If the Attorney-General does not understand that
principle at all, what will be the next step? Perhaps the Attorney-General will come to
the view that there are other things about the courts he does not like and he will
introduce legislation on them? Perhaps a couple of the decisions they make will not
suit him and he will legislate on those. Once you open the door to legislation on the
internal workings of the courts, you are opening a door to a breach of the separation
of powers.
In my view, a Court of law must at all times remain a Court of the people (Queens Court) and
cannot have a business registration as then it no longer is a Court of the people. Neither do I
accept that the Commonwealth of Australia has any constitutional powers to force upon a State
Court to become a registered business entity being it for taxation or other purposes, as this
interferes with the sovereign rights of the States to have their own independent courts.

Part 2 Page 99
Therefore I view the judgement of the Magistrates Court of Victoria at Heidelberg to issue orders
of convictions is ULTRA VIRES, as it is done by a some kind of STAR CHAMBER COURT
type of Court that has a business interest and is no longer a Court independent of any business
interest.
“JUSTICE MUST NOT ONLY BE DONE BUT SEEN TO BE DONE”
It cannot be held that any Court that is having a business interest, and indeed seems to be
evaluated upon its expenditure and rate of convictions, etc, could be deemed to operate as an
INDEPENDENT COURT for the people.
When is a person deemed to have voted? If there is no way it can be verified?
As the Commonwealth Director of Public Prosecutions already indicated in the past, it would
perhaps take truck load of paperwork to go through as to ascertain if there might be some material
on foot that could be held that I had in fact found to have voted. Then again they may never find
anything regardless if in fact I had filled in ballot papers, for the simple fact that from time to time
staff at the polling stations do make errors and mark of thew incorrect name. Also, dog and cats
were recorded at times as electors.
In the 1970’s my (first) wife and I did vote in elections, and yet, I did not naturalize until 1994.
Then, I found out one day, when attending to vote once again, that I was no longer on the rolls,
and it was explained to me that a check had been done at my listed residential address and it was
found I was no longer residing there, hence I was removed from the rolls.
At that time, my (then) wife and I had enrolled as being citizens because we held we were for that
we were residing in the State of Victoria. The confusion about “citizenship” is considerable as the
transcript indicate of the various JSCEM (Joint Standing Committee on Electoral Matters). Hence
people in the belief that “citizenship” related to where one is domicile will enrol in good faith
being totally unaware that it is an utter and sheer mess.
As I view it, the Commonwealth of Australia is seeking to “brainwash” the Australian community
at large by pretending that naturalization is becoming an “Australian citizens” this even so at time
of federation the Framers made clear that “aliens” who had paid their POLL tax would retain their
Colonial (now State) franchise, and so would obtain upon federation Commonwealth franchise by
being then also Australian citizens.
On personal and religious grounds also I would never vote in any election that involves people
who are warmongering and send troops out to in effect murder children in their beds by an armed
invasion, dropping bombs in discriminatory on their residence, merely for political gains, such as
was occurring in Iraq. In particularly not where I have extensively campaigned against the
unconstitutional and illegal conduct of such armed invasion involving Australian troops.
As a self educated “constitutionalist” I for one have a decent perception as to what the Framers
of the Constitution intended, and it certainly aint warmongering, as indeed they devised a
Constitution to seek to avoid any Jack-in-Office to act unilateral without proper cause.
Mr. SYMON.-A written Constitution is not exhaustive. We have implanted

responsible government in this Constitution, but we have not said so in so many words.
We must have some regard to the instrument we are framing, and we ought to look
upon it as a Constitution with plenty of elasticity, under which all the constitutional
Part 2 Page 100
usages will apply and be interpreted. If the Commandant was a kind of Jack-in-office,
and wanted to run his army where he ought not to, you could dismiss him. If the
Governor-General interfered unduly you would have to say respectfully-"You must
not interfere in these matters; if you do, we shall repeal the Act, and there will be no
army; you will be Commander-in-Chief merely nominally."
Constitutionally, the Prime Minister has no say, as it is the Governor-General who decides matters
to declare war or peace on behalf of the Crown, and the Minister of Defence then is the
responsible Minister who acts within the authority provided.
It would therefore be utterly and totally absurd that where I oppose such kind of mass murder
upon innocent people I somehow could nevertheless be forced to vote in a manner as to show a
preferences that might in fact end up having my vote counted for a war mongering person.
It would be contrary to the very POLITICAL FREEDOMS the Framers of the Constitution
provided for.
Members of Parliament themselves maintain a right to abstain from voting or not even turn up for
voting, and consider this to be their right, and hardly could this right be any less for ordinary
electors.
Regardless if an election is unconstitutional or not, and regardless if I desire to vote or not, that I
stand as a candidate has no purpose and neither should be seen as such as to legitimate somehow
that then the purported election was valid. Standing as a candidate it gives me the added excuse
not to vote because I cannot be forced to vote for an opponent, which I would be forced to do if I
had to vote according to the voting system the Parliament devised.
In the last 2 purported federal elections I accompanied my wife to the polling stations. In fact,
during the 2004 purported federal election the staff at the table then commented to my wife that
her surname was familiar to her. Well, as I was listed as a candidate obviously it ought to have
been familiar to her, where there were only a handful of candidates, and only one with an
hyphenated name.
As such, I attended to the poling stations on both occasions. In fact spend about 15 minutes at
least in the polling station in 2004. I even drew the attention of the electoral officer in charge
about the fact that there were how to vote cards on the floor.
As such, no one can dispute that I never attended to the polling station.
The issue is what constitute failing to vote. The High Court of Australia itself has made clear that
because it is a secret ballot no one therefore is entitled to check if a person actually fills in a
ballot. Therefore in that regard the filling in or not filling in of a ballot paper cannot be an issue.
As already covered above, the staff at polling stations do by error mark off the incorrect names
and so people who may have actually cast a vote may still be deemed not to have done so.
Therefore, the charge of failing to vote is a vexatious one that seems to rest upon whatever the
Australian Electoral Commission concludes regardless if in fact the person may have caste a vote.
If for example a person caste a postal vote but it may not have arrived by the Australian Electoral
Commission because, say, the mail, was lost by Australian Post, then the person having posted
his/her ballot paper nevertheless can be deemed not to have caste a vote and be fined by the
Australian Electoral Commission.
I for one deem that I was under no legal obligation to give the Australian Electoral Commissioner
any explanation as the Framers made clear that only a State Court could enforce Commonwealth
law against a citizen. And, considering the comments I discovered being made by the Australian
Electoral Commissioner about me on the card they are holding, I am certainly not going to reveal
to much details I hold is none of their business.
Part 2 Page 101
A major issue by the Framers of the Constitution was that the Commonwealth of Australia should
not be permitted to interfere with a persons religious belief in any manner what so ever. As they
made clear they didn’t want to have a kind of Northern Ireland kind of religious dispute in the
Commonwealth of Australia. Therefore, nothing the Commonwealth of Australia in that regard
can do as to try to force me to vote against my religious views that I oppose war mongering and in
particular will not vote for those committing and/or participating in human rights violation, mass
murder, assassinations, crimes against humanity, etc. The right of any person to express
opposition against such deplorable deeds cannot be denied. This is the very peaceful right as any
protester is entitled to do.
In my view, any judicial officer who were to contemplate let alone convict me would act in
derelict of his duty, and contrary to the very intentions of the Framers of the Constitution who
made clear that they wanted a structure of peace and indeed expressed this in Section 51 by using
the wording;
“The Parliament shall, subject to this Constitution, have powers to make laws for the peace,
order, and good government of the Commonwealth with respect to;”
for the record, I am the only person who formally applied to the High Court of Australia to issues
within Section 75(v) a Prohibition and mandamus against various Ministers , such as in regard of
what I hold is the unconstitutional detention and/or deportation of refuges and children born to
them who are by birth Australian born (British nationals) and wrongly deported as “Stateless”, the
issue of “citizenship” and such as the issue of the unconstitutional deployment of troops for an
armed invasion into Iraq. On 11 February 2003 the Registrar refused to accept the application on
the basis that it was not according to the Rules of the Court and recommended certain changes to
be made, which I complied with and on 18 February 2003 presented the amended applications as
per her directions. Hayes J then the next day on 19 February 2003 refused to accept the
application for filing and as I understand it claiming the application was not according to the
Rules of the Court, even so it was prepared as directed by the Registrar’s format. Gummow J
upheld the ruling of Haynes J subsequently.
On 18 March 2003 I then lodged in the High Court of Australia a new application that basically
pursued those three above issues, and left off other applications, albeit now supported by about
800 pages of supportive documentation addressed in the various points and backed up by relevant
Authorities and Hansard quotations. Haynes J on 19 March 2003 (The day the armed invasion
commenced into the sovereign nation Iraq) again refused the application to be accepted for filing,
and Gummow J later upheld this decision also. Yet, I understand Kirby J then, so to say, put a call
out to lawyers that they should seek to challenge the validity of the “citizenship” legislation.
Still, the fact that I opposed the unconstitutional armed invasion into a sovereign nation (Iraq) is
therefore on Court file. I can do no more but to lodge applications and if any Court refuses to hear
and determine applications upon their merits then that is something that is beyond my powers to
overrule, other then that I can expose this. Constitutionally however, there is no power for the
High Court of Australia to refuse to hear and determine upon its merits any application involving
the interpretation of the Constitution as the Framers made clear that an application “must be
heard”.

Mr. LYNE: I think I may say that we do not want to see in future generations either a
successful or an unsuccessful revolution. We want in this democratic country to lay the
foundation of a constitution on which ultimately the voice of the people must be heard and
must predominate. If you frame any other constitution you may depend upon it you are
laying the foundation of trouble that we little know of or heed at the present time.
Part 2 Page 102
In my view, we might very well end up with a revolution if people are robbed ongoing of their
constitutional rights and subjected to unconstitutional and other illegal demands and the Court are
acting in a manner that is interpreted to condone such unconstitutional and/or illegal conduct.
Indeed, the framers of the Constitution time and again warned against this!
CONTRARY TO MAGISTRATES’ DIRECTIONS OF 4-8-2006 NOT TO PRESENT

EVIDENCE
Despite that previously the magistrate directed that the Commonwealth Director of Public
Prosecutions was to provide me with all relevant material relating to the charges, other then a few
document there was a total failure to do so.
As I did explain to the magistrate on 17 November 2005, the Director of Public Prosecutions
never had questioned me if I had done any postal voting and neither presented any evidence to
prove I had not done so.
Clearly, my earlier submission to the magistrate that there was NO CASE TO ANSWER was
correct and should have been accepted, in view that despite the decision of a previous magistrate
the Commonwealth Director of Public Prosecutions failed to prove I had not voted. It merely
sought to rely upon Section 388 of the Commonwealth Electoral Act 1918 despite that the
previous magistrate already had overruled this and neither party appealed that ruling then, and as
such remains on foot.
There is an other significant issue. The Commonwealth of Australia has provided that payment is
made per vote for which the elector voted. This in effect means that a candidate like myself who
does not have the enormous wealth as large political parties have, cannot, if desiring to do so, can
afford advertising campaigns, where as opponents belonging to a major political party aware that
they will get tens of thousands if not hundreds of thousands of dollars fas payment per vote, they
then can based upon engage in an expensive election campaign. Hence, there is no free and proper
election as the payment per vote denies a fair and proper election.
The Framers of the Constitution made clear that even the poor should be able to be a candidate
and be elected, yet, the way the Commonwealth of Australia is manipulating elections, by
demanding payment as a deposit from a candidate, which in itself can cause severe financial
hardship to this candidate indicates that there are no fair and proper elections. How on earth then
could any judicial officer enforce unreasonable, unconstitutional and illegal requirements
associated with purported elections as now pursued by the Commonwealth Director of Public
Prosecutions?
Now what is the position, one may ask, if a person attends to a polling station, has his name
marked off and then walk out without accepting the ballot papers? Is then there a failure to accept
the ballot papers as a failure to vote even so his name was marked of as having voted?
What if the person accepts the ballot papers and then walk straight to the ballot box and deposit
the unmarked ballot papers in the relevant boxes? Is then his name nevertheless marked of or
remained marked of despite that it was held he did not fill in the ballot papers?
As I understand it there is no specific legislation that sets out precisely at what time it is deemed
that an elector has voted or when not. It seems to be up to the Australian Electoral Commissioner
to determine, rightly or wrongly, that an elector has not voted, where there is a lack of any proper
manner to really establish if a elector did or didn’t vote.
PUBLISHING OR REGISTERING
Because my numerous complaints have been dragging on for several years, since 20 October
2001, it seems that rather then to appropriately address the matters, ways have been sought as to
try to circumvent my complaints, such as by amending the Act Interpretation Act (Cth) that a
proclamation can be published in the Gazette or be registered. By the amendment of the
Part 2 Page 103
legislation that instead of publishing a proclamation in a Gazette the Governor-General can
instead merely register the proclamation it effectively seems to overcome the problems I raised
that the proclamation was not published in the appropriate manner on or before 8 October 2001
prior to the time it was to come into effect.
Just that this amendment of the Act Interpretation Act (Cth) does not operate in that regard
whatsoever, as the Act Interpretation Act a legislation by the Commonwealth of Australia cannot
undermine what the Framers of the constitution intended.
It is obvious clear to me that there is a lack of proper advise of “constitutionalist” such as I am,
who have a better perception of what is constitutionally applicable in regard of certain
constitutional matters. After all, Section 32 of the Constitution is not governed by the term “Until
the Parliament of the Commonwealth otherwise provides” and as such one must read Section 32
in regard of the “proclamation” as was intended by the Framers of the Constitution being that
such “proclamation must be published in the Gazette before it can be enacted upon. The
Commonwealth of Australia has no legislative powers to interfere with the true meaning of
“proclamation” as referred to in the Constitution.
WATSON v_ LEE (1979) 144 CLR 374;

BARWICK C.J.
To bind the citizen by a law, the terms of which he has no
means of knowing, would be a mark of tyranny.
It appears to me that the Commonwealth of Australia, as like with the word “citizen” is slowly
seeking to amend the Constitution (albeit unconstitutionally) by pretending different meaning to
words then intended by the Framers of the Constitution.
Sure, the Commonwealth of Australia has to some degree constitutional powers to direct the
prerogative powers exercised by the Governor-General in regard of matters regarding its
legislative powers, and as such, for example could legislate that every appointment of any public
servant must be “proclaimed” or otherwise might be “registered” by the Governor-General, but it
is another matter as to purport that somehow constitutional meanings are also being amended by
this. The Commonwealth of Australia simply cannot amend any word of the Constitution or give
a different meaning to it unless it is given specific powers to do so. Section 32 is clearly not a
Section that falls under this and in fact neither Section 10 of the Constitution that requires that
time tables are applied by State legislative provisions.
What we have therefore is an attempt by the Commonwealth of Australia to even further mess up
what elections are about, rather then seeking to resolve matters.
With the ongoing, over numerous years, of lawyers being involved on behalf of the
Commonwealth of Australia (including the Australian Electoral Commission) against me one
would have thought that common sense ought to have prevailed and those lawyers at the very
least would have made some attempt to try to mediate with me and try to get some proper
understanding as to what I am on about and the objections I have made and how to properly
address those issues. However, it appears to me that rather then to try to appropriately address the
issues their effort seems to be directed to try to circumvent having a matters corrected and to have
the Courts making judicial decisions upon the merits of my objections by deceiving the Courts as
to its jurisdiction.
It ought to be obvious that if the Court were to declare that indeed the 2011 purported federal
election was unconstitutional and/or otherwise invalid then this will have grave consequences to
those in the seat of power and also to the Australian Electoral Commissioner and indeed also to
the Commonwealth Ombudsman.
They all refused to appropriately address the issues. In September 2002 I, for example, then filed
a formal complaint with the Commonwealth Ombudsman, against the Australian Electoral
Part 2 Page 104
Commission, that it failed to allow any person entitled to vote in federal elections to vote if they
were held in the concentration camp styled (unconstitutional) Commonwealth Detention Centres
or other prison facilities. The Commonwealth Ombudsman then declined to investigate the matter,
just that we no know that hundreds of people were wrongly held in detention who were lawfully
residing in the Commonwealth of Australia, indeed the Vivian Solon Alvarez case is a clear
example where she was subsequently unconstitutionally deported also.
The term “ACCORDING TO LAW” was not applied and still is not applied in regard of people
accused or deemed by the Commonwealth of Australia to be unlawfully in the Commonwealth of
Australia, as rather then to place any such person before a State Court as to determine their legal
position the Commonwealth of Australia, albeit unconstitutionally, simply allows public servants
to make such decisions and override the legal rights of people like Vivian Solon Alvarez.
What the Commonwealth of Australia is seemingly trying to do is to create the same kind of
denial of justice with electoral matters.
The Commonwealth Ombudsman refusal to investigate in 2002 was not because there was no
jurisdiction to do so but merely by assuming that people would not be wrongly locked up in
detention. Well, it is remarkable that the same Commonwealth Ombudsman refusing to
investigate my complaints (as likewise the JSCEM refused to do so when I complained to it in
September 2002 about this also) we now know that hundreds were wrongly detained. If therefore
harm came to them by this wrongful detention where had the Commonwealth Ombudsman
investigated my complaint in September 2002 and then discovered that indeed people entitled to
vote were wrongly denied to vote because the Department of Immigration without due and proper
regard of DUE PROCESS OF LAW merely caused people to be detained regardless of their true
legal position and those holding those detainees simply disregarded the true legal position of those
detainees then undue prolonged suffering was directly contributed by the very Commonwealth
Ombudsman now appointed to investigate wrongful detention. Unlikely would the
Commonwealth Ombudsman expose his own wrongful conduct, as likewise unlikely the former
Chief Commissioner of the Australian Federal Police Mick Palmer was to have exposed his
own wrongful conduct in detaining people in such cases. Hence, their investigations are in my
view with bias.
How can anyone who fails to make reasonable attempt to inquire as to the constitutional
provisions and its proper application be in any capacity to adjudicate or otherwise determine what
might have been done wrong. Indeed how could such person make proper recommendations?
How can any judge of any court of law possibly determine my guilt or innocence unless this judge
first seeks to explore the true intentions of the Framers of the Constitution upon the issues I have
raised and not merely relies upon ULTRA VIRES decisions by the High court of Australia made
by judges who lacked to be “constitutionalist” and at times relied upon parts of the Hansard
records of the Constitution Convention Debates, out of context and contrary to what was
intended by the Framers of the Constitution.
Mr. WISE (New South Wales).-I do not like to speak with any confidence after such a
strong expression of opinion from one so well qualified to give an opinion as the Attorney-
General of Victoria, but my recollection of the reasons which led to the first part of the
clause being inserted in the Draft Bill of 1891 leads me to say that the words were intended
to limit the legislative jurisdiction of the states by such necessary restrictions as were
thought desirable to give the Federation power to settle disputes between states arising from
the exercise of the legislative authority within each state. I very much regret that Mr. Clark's
memorandum, a portion of which I read yesterday, has not been returned. In the concluding
part of that memorandum he draws special attention to these words, and points out that they
were a necessary complement to the implied surrender of the right to claim redress by
diplomatic or other means which was made by every state when it entered into an equal
Part 2 Page 105
federation with other states. He lays down in express terms the principle which Judge
Shipman used as the basis of his judgment in the case I cited yesterday from 22 Blatchford,
131, that is to say, if a state passes a law the effect of which is to injure the territory or
property of persons outside the state-that may not be the intention, but if the direct effect is
to inflict injury upon the territory or property of citizens in another state-then that law,
although in so far as it only affects citizens within the state that passes it, it is intra vires of
the Constitution, it becomes ultra vires in so far as it inflicts injury on the inhabitants of
another state. That, I believe, was the intention, although I feel some diffidence in insisting
upon it. This was the view which formed the basis of the judgment of Mr. Justice Shipman.
[start page 671]
The state of Connecticut had authorized certain works which injured property in the
adjoining state of Massachusetts, and it was held that that was a matter in which the Federal
Court, in the interests of the Federation, was entitled to exercise jurisdiction.
Mr. ISAACS.-Every text-book writer ignores that case; I cannot find it anywhere.
Mr. WISE.-The object of this was by no means to deal with a set of circumstances such
as have arisen in the United States, which could not have arisen here, but to deal with other
matters; and it seems to me that the clause as it stands would be a powerful instrument to
prevent an abuse of powers by a state, not for the purpose of injuring the citizens of that
state, but for the purpose of injuring the citizens of other states.
Mr. ISAACS.-Can you give a concrete case?
Mr. WISE.-Well, take the case of imposing a poll tax on citizens passing from one state
to another. Such a law as that would at present be within the competency of the legislation
of any colony.
Mr. SYMON.-Not if this Constitution becomes law.
Mr. WISE.-It might be dealt with by another clause, and would also be dealt with by this
clause 110. I am not dealing now with the latter part of the clause, because I admit that that
is open to other objections. I am confining my attention to the first portion. The instance I
have given is of course an extreme one, but it is such cases as that which, according to my
recollection, it was intended should be dealt with by the first portion of this clause. I very
much regret that Mr. Clark's memorandum is not in the hands of honorable members,
because it deals with the first part of this clause and shows what importance Mr. Clark
attaches to it as one of the draftsmen of the Bill of 1891.
Mr. ISAACS.-How would the entry into one state by a citizen of another state be an
immunity or a privilege of that citizen?
Mr. WISE.-Let me give another illustration. Suppose an extra probate duty were imposed
on Victorians who had property in New South Wales, or vice versa.
Mr. REID.-Or an absentee tax.
Mr. WISE.-Yes, or an absentee tax.
Mr. SYMON.-It would be competent for the states to do that.
Part 2 Page 106
Mr. WISE.-No; I mean an absentee tax making those who reside in one part of the Union
pay higher-say pay a higher probate duty or legacy duty-than those who reside within the
state imposing the tax.
Mr. ISAACS.-How could that be a privilege or immunity of the citizens of the other
states?
Mr. WISE.-It would be putting an exceptional disability upon the citizens of another
state, to which the citizens of the state imposing the tax were not subject.
Mr. ISAACS.-But how is it a privilege or immunity of the citizens of another state that
they should not be taxed as absentees by a particular state?
Mr. WISE.-It is an immunity at present.
Mr. ISAACS.-Then you can never tax a man living in another state?
Mr. WISE.-You cannot impose exceptional treatment upon the citizens of another
state; that applies to everything. It is difficult to contemplate a concrete case, but that the
words themselves have a definite and clear meaning any one can see; and whether that clear
power should be taken away or not is a matter of very serious consideration. It does appear
to me that this clause is a powerful instrument in the hands of the federal authority to
prevent any state acting in an overt manner, permitting overt acts of hostility against
citizens outside its jurisdiction. For that reason I hope that the clause will be allowed to
stand.
Mr. HOLDER (South Australia).-I beg to move-
That the following new clause stand, part of the Bill:-In the event of any law passed by the
Federal Parliament being declared by any decision of the High Court to be ultra vires of this
Constitution the Executive may, upon the adoption by absolute majorities in both Houses of
the Legislature, within six months after the decision of the High Court, of [start page 1718]
resolution thereto directing, refer the law to the electors under section 121, and if approved
as therein provided the Constitution shall be deemed to have been enlarged, and the law
shall be conclusively deemed to have been intra vires of this Constitution from the passing
thereof.
In the opinion of our constituents, or of a great many of them, one grave objection to this
Constitution is that over everything is the High Court. In the opinion of many, the legal
formulae and legal proceedings usurp in this Constitution the place which the people have
occupied in the state Constitutions. If we accept the Constitution, the final appeal will be,
not to the people as represented by the Parliaments, but to the High Court. I admit freely that
as the Constitution is a deed of partnership, it is absolutely necessary to have the High Court
to interpret it, and to see that the various co-partners keep in all that they do within the four
comers of the deed to which they have agreed. At the same time, so rooted is the objection
to the position which law occupies in this Constitution that it will be well if we can meet
that objection in any way by placing in the hands of the people the final appeal, at least in
some cases where the final appeal would otherwise be to the High Court. I do not need to
quote from many opinions of others to support what I have said as to the general view that
federation means a great deal of law. I noticed in the daily papers in this city a few days ago
Part 2 Page 107
a report of an address by Professor Harrison Moore, the professor of law at the Melbourne
University, in which he said that the legal profession had not had very much to do of late,
but that under the Federal Constitution now under consideration the lawyers would have
plenty of work. I do not take that comment as coming from one who is hostile to federation,
but simply regard it as the expression of Professor Harrison Moore's deliberate opinion that
federation under this scheme would mean any amount of work for the lawyers. That is just
what the people do not want, and if we can by any means lessen the law work and place the
final decision of some matters in the hands of the people, from that point of view we shall
do well. I can quite conceive that again and again the Federal Parliament might pass laws
involving comparatively small extensions of the Constitution as we have it before us, but yet
involving such amendments as, if the people were appealed to, they would certainly indorse-
amendments not of sufficient weight and importance to be submitted to the people for their
endorsement unless the laws in question were challenged. Therefore, in this amendment I
propose that in the event of any law passed by the Federal Parliament being declared by the
court to be ultra vires, then the Federal Parliament may, by an absolute majority of both
Houses of the Legislature, within six months of the adverse decision of the court, submit the
matter to the electors for a referendum in the same way as provided in the clause dealing
with ordinary amendments of the Constitution. We have deliberately decided previously that
the Constitution should only be amended by direct appeal to the electors, in which the vote
shall be counted in two ways. I do not propose to alter that provision in the slightest degree.
We have provided that measures altering the Constitution shall only come into force after
they have been carried by absolute majorities of both Houses. I include the same provision
in this clause. Before a matter can be sent to the referendum, both Houses must by absolute
majorities agree thereto.
Mr. HIGGINS.-If so, how do you improve the position by this clause?
Mr. HOLDER.-The honorable member asks me what effect my clause would have. I will
suggest a case. Suppose that it is desired to effect an alteration in the Constitution. The steps
necessary for that now would be to introduce into the Federal Parliament a Bill to amend the
Constitution. That Bill must go through [start page 1719] its various stages, be passed by
absolute majorities in both Houses, and must then go to a referendum of the people. But
suppose that without any knowledge on the part of the Parliament that that would be the
case the major portion of the Bill was found to be outside the limits of the Constitution, and
that it was held to be ultra vires. Honorable members will begin to see what this clause
would achieve in that event. Supposing in this case the Bill had been passed without any
belief by the Federal Parliament that the provisions were ultra vires of the Constitution, and
some months afterwards the courts were petitioned to exercise jurisdiction, and pronounced
the measure ultra vires; if, then, the Constitution had to be amended in the ordinary way, it
would follow that, after the Bill had been passed, after some steps might have been taken
under it, after it had been pronounced ultra vires, the whole matter would have to be begun
again at the very beginning. You would have once more to introduce a measure to
Parliament, to pass it through all its stages, to take a vote of the people, so that all your work
has to be done again, whereas under my clause the procedure would be this: The court
pronounces the Bill ultra vires; at once, or at anytime within six months thereafter, the two
Houses of the Legislature are asked to pass addresses, if they consider it important enough,
and think it right to do so, and all the time that would otherwise be spent in passing a new
measure through Parliament is saved, because the carrying of the two resolutions would not
take nearly so long as the passing of an Act of Parliament. And then this provision comes in.
If on the referendum the majority of the states and of the people approve-
The Constitution shall be deemed to have been enlarged, and the law shall be conclusively
deemed to have been intra vires of this Constitution from the passing thereof.
Part 2 Page 108
Mr. GLYNN.-Is not that putting matter of legislation in the Constitution?
Mr. HOLDER.-No, I do not contemplate for a moment putting any legislative matter in
the Constitution.
Mr. GLYNN.-That is what its effect will be.
Mr. HOLDER.-I do not see how that result could come about.
Mr. ISAACS.-This makes it retrospective altogether.
Mr. HOLDER.-I will answer that interjection, which certainly has great weight.
Mr. OCONNOR.-Will the honorable member answer this question: Supposing a law is
affirmed by this process, and afterwards another law involving the same question is
proposed, is that also made good, or must there be a referendum for that?
Mr. HOLDER.-I have two interjections to answer. I will deal first with that of the
Attorney-General of Victoria. In reply to his statement that this makes the law altogether
retrospective, I simply say that the proposal is to make the law retrospective in this sense:
That during the interval throughout which it was, according to the judgment of the court,
ultra vires, the decision of the people afterwards could make it intra vires.
Mr. ISAACS.-That might make persons criminals who were not otherwise criminals.
It might not have been an offence to do a certain thing if the High Court declared the
law to be ultra vires, but if that law was made intra vires from an antecedent date, all
the persons who did that thing might be subject to punishment.
Mr. HOLDER.-I have great respect for the eminent legal authority of the Attorney-
General of Victoria, and he may help me to overcome that difficulty, and attain the
advantage I seek to attain. Mr. O'Connor asks me, if this were adopted, and under a certain
referendum a certain Bill was declared to be intra vires, whether that position would cover
any similar Bill adopted afterwards? My answer to that is this. I wish it [start page 1720]
should do so, that the enlargement of the Constitution should be not merely for the inclusion
of the particular measure which had been passed, but for the inclusion of the particular
matter concerning which otherwise that Bill had been, but for the referendum, ultra vires. I
do not profess to be a draftsman, and I gather that the Drafting Committee have been kind
enough to undertake-especially for lay members-to put into proper phraseology any
resolutions which the Convention has by a majority declared to embody principles which
they wish to have included in the Bill. So I am content, if the Convention adopts my
proposition as being an indication of its will, to leave the wording of the clause as it shall
appear finally entirely in the hands of the Drafting Committee, and shall be very glad of any
help they can give to suggest a method of covering what the honorable member has
suggested, so that my intentions my be fully met. do feel that in any question where the
point of the law ultra vires is raised, not the High Court but the people ought to be the final
appeal-that if I or any one else is on the other side of this controversy concerning a measure,
and I take the ground that it is ultra vires or that it is not, the final appeal concerning what
the Federal Parliament may do ought not to rest with the High Court, which can simply
determine it on the dry question of law, but ought to rest with those people who, themselves,
have the right to say whether or not the Constitution shall be enlarged to take in the
particular question at issue. I do not hesitate to affirm that, if we can place this final appeal
in the hands of the people instead of keeping it in the hands of the High Court, we will have
Part 2 Page 109
done very much indeed to popularize this measure, not only in South Australia, but in other
colonies. For I do assure honorable members that the presence of so large a number of
lawyers as there are in this Convention has helped to give colour to the suggestion, which is
very widely prevalent, that this Constitution is being made for the lawyers and for the
courts.
Mr. SYMON.-Nonsense!
Mr. GLYNN.-That is pandering to the popular cry.
Mr. BARTON.-I think my honorable friend ought to do his best to dispel any such base
slander as that.
Mr. HOLDER.-I can assure my honorable friend that I will do my best to dispel any such
base slander as that. I am not stating a matter in which I express my own thought or my own
feeling, but I repeat that in what I said just now I am expressing the thought and the feeling
of a great many persons outside the Convention who are not so well informed as we are. If
we can remove a misapprehension, if we can cure a ground of distrust, by making the
people themselves the final arbiters in their own cause, we shall surely be doing well, and
by doing that we will not be endorsing, but will be going the very best way possible to
refuse an indorsement to that opinion which was dissented from just now.
Sir EDWARD BRADDON.-Why not make them the first arbiters, too?
Mr. SYMON.-Why not make them the High Court at once?
Mr. HOLDER.-I have already shown that the adoption of my clause would save a large
amount of time. It is quite impossible that the people can sit as Judges, because the function
of Judges is one thing, and the function of electors of the Commonwealth is quite another
thing. I am not confounding these two. The people are absolutely incompetent to judge
whether a certain law is or is not ultra vires, and I would not dream of committing that
charge to the people, for there are no persons less fit than the general electors-taken all
together on a referendum-of any country to decide whether this or that is true law.
Mr. ISAACS.-You say the people accept the position in law; but they are asked whether
they will change the Constitution.
[start page 1721]
Mr. HOLDER.-That is exactly it. I would never dream of asking the people to reverse a
legal decision arrived at by the High Court. I have been specially careful in the form of the
amendment to avoid any such thing. I do not dream that the High Court will on one day say
that a certain Bill is ultra vires, and that the people shall the day after, or some months after,
say the court was wrong. That is not what I suggest. I suggest that the people should accept
the decision of the High Court that the law was ultra vires, but should say it ought not to be
ultra vires-that the Constitution should be enlarged so that such a decision could not be
given again. I do not wish to leave it to the people to say that the decision was wrong, but to
leave them to say that the Constitution should be so enlarged so as to-make such a decision
impossible in the future. That is a different thing from making the people Judges or giving
them a judicial position. I really feel very hopeless as a layman addressing the Convention
on a very technical legal point like this. I quite anticipate-and though this is not a wise thing
to say, I do not mind saying it-I quite anticipate defeat before I sit down. At the same time, I
Part 2 Page 110
shall not cease to regret defeat if it comes, nor shall I cease to believe that this way out, or
some other which the Drafting Committee could easily suggest, ought to be adopted, so as
to avoid the possibility of anybody outside saying, with any appearance of truth, that this is
a lawyer-written Constitution. I want to move the motion in a slightly different form. I want
to leave out the word "High" before "Court" in each case, so that the word "court" only shall
stand. I mean that word to cover not merely the decision of the High Court, but the decision
of the last court of appeal from the High Court, if that appeal be made. With that alteration, I
move the amendment standing in my name.
Mr. BARTON (New South Wales).-I move that progress be reported. I wish to make a
statement without discussing the question. I should like honorable members not to go away
when progress is reported, because I wish to get an order for the printing of the Bill with the
amendments so far, and for the Drafting Committee's amendments to be embodied pro
forma in the Bill. In order to do that the standing orders will have to be suspended, and that
requires the attendance of a majority of the House.
Mr. DOBSON (Tasmania).-Would it not be better for the leader of the Convention (Mr.
Barton) to answer the arguments of Mr. Holder, and let a division be taken? If we do not
take a division tonight we shall occupy the whole of tomorrow in discussing this question,
which includes that of the High Court, the referendum, and deadlocks.
Mr. BARTON.-After the opinion some persons outside seem to hold about lawyers, I
shall leave the discussion of this matter to the laymen.
The motion was agreed to.
Progress was then reported.
The standing orders having been suspended,
COMMONWEALTH OF AUSTRALIA BILL.
The Convention then resolved itself into committee of the whole for the further
consideration of the Commonwealth of Australia Bill.
Discussion (adjourned from the previous day) was resumed on Mr. Holder's proposed new
clause (see pages 1717-18).
Mr. SYMON (South Australia).-My honorable friend (Mr. Holder) began his speech by
indicating that he was moved to submit his new clause by three considerations. One was that
there was the grave objection entertained by many people to the Constitution we are framing
that over all was the influence of the High Court. Now, I am not sure that that represents
accurately anything in the nature of an objection that is entertained by people in any of the
colonies. On the contrary, it seems to me that, instead of there being-at least amongst a
section-a feeling that the Constitution is overspread by the High Court, or any of the courts,
there is a desire that we should still further multiply the courts which are to concern
themselves with this Constitution, and the institutions to be established by it, for, instead of
having enough courts, we are to have one more-the Privy Council-by way of appeal from
the Federal High Court, which, my honorable friend thinks, overspreads this Constitution.
Part 2 Page 111
My honorable friend said that there would be necessarily a great many questions of law in
connexion with the working of this Constitution, and he referred, in support [start page
1724] of that statement, to some expressions made use of by Professor Harrison Moore,
with regard to the employment which would thereby be found for the lawyers. My
honorable friend having stated that, proceeded to move his amendment, which will not in
any possible particular lessen the evils (if they are evils) to which he called attention. He
proposes, under this amendment, that every question in relation to the validity of laws,
either of the state or of the Commonwealth-those laws having first passed through the
crucible of investigation by the High Court-shall, by the cumbrous and expensive
method of seeking to get rid of the decision which may have been pronounced by the
tribunal appointed under the Constitution, be submitted to a referendum of the
people.
Sir JOHN DOWNER.-Laws altering the Constitution.
Mr. SYMON.-First of all, I take leave to deny that any body of people in Australia,
whose voice is entitled to any weight, will so misunderstand the position of the High Court
in this Constitution, in relation to questions of ultra vires, as to think that, instead of being
an advantage, it will be a positive disadvantage to them when the union is consummated.
The High Court is really and most properly appreciated and understood as being the
guardian of the interests of the states as well as of the interests of the Commonwealth;
as the protector of the freedom of citizens as well as of the rights of the states. They
understand that it might be possible, but for the intervention of the High Court, for the
Commonwealth to pass laws that interfered with the rights and with the integrity of
the states constituting the Commonwealth, and that it might also be possible, on the
other hand, for the states to pass laws which would to a certain extent infringe upon
the rights of the Commonwealth. The High Court is to occupy the position of arbiter
between the two-it is to be the daysman that is to go between the states on the one hand, and
the Commonwealth on the other. It is for that purpose that the High Court has been
established. If there is too wide a power in regard to disputes upon questions of
encroachment under legislation, if it is considered that the High Court might frustrate the
object of the Constitution, then the remedy is not to increase the expense in remedying the
difficulty, but to sweep away the High Court altogether, and to say that we will rest content
with some other method of adjusting the differences between the constituent parts of the
body politic of the Commonwealth. Now, sir, my honorable friend's amendment only needs
to be examined by the light of what we have already provided in the Bill in order to secure
its prompt rejection. My honorable friend put it that he did not wish this amendment to
establish a court of appeal in the ordinary sense in regard to decisions of the High Court.
But it must amount to one of two things. This reference to the mass of the people must be
either in the nature of a court of appeal from the decisions of the High Court, or simply an
alternative method of amending the Constitution by authorizing what has been called in
question.
Mr. HOLDER.-That is what it is.
Mr. SYMON.-My honorable friend accepts the latter description. Now, sir, of course in
either case it means an expenditure. This referendum-which as proposed here is a kind of
lop-sided referendum, as I shall show in a minute-means an expenditure, superadded to all
the cost and delay of litigation, of £30,000 or £40,000 or £50,000, which a referendum to
the people of the Commonwealth is estimated to cost.
Mr. HOLDER.-And which any alteration of the Constitution must cost.
Part 2 Page 112
Mr. SYMON.-I will come to that in a minute. I shall not overlook that consideration. If
this referendum is to be in the nature of a court of appeal, the proposal will be constituting
the people-the [start page 1725] mass of the people-a court of appeal against the decision of
the tribunal which they themselves had constituted.
Mr. HOLDER.-That is absurd; you are setting up a man of straw in order to knock it
down.
Mr. SYMON.-My honorable friend's whole proposal is a man of straw, and I am

endeavouring to treat it as such, in order that the slightest wind may knock it over. We know
that the same difficulty arose in Switzerland, where it was sought to constitute the Federal
Assembly a court of appeal from the decision of the High Court. For some years-between
1848 and 1875-the experiment was tried, but it was found to work so detrimentally to the
best interests of the people of Switzerland that they repealed it, and placed the High Court of
Switzerland above political influence, and above the control of what was a political
tribunal.
Mr. HOLDER.-Hear, hear.
Mr. SYMON.-Of course, I know that my honorable friend assents to that. I know that he
would not be so lost to every sense of propriety as to suggest that there should be an appeal
from the High Court to the Federal Parliament, or to any state Parliament in regard to a state
law; but I am pointing out that some honorable members may not take the view my
honorable friend takes as to the amendment of the Constitution, and they may be prepared to
take the view that it will be well to have some other tribunals body introduced with a view
of controlling the decisions of the High Court in matters considered to be matters of public
policy. Therefore, I do not point out the case of Switzerland because my honorable friend
thinks we could do the same here, because such a step would be abhorrent under our
Constitution. The next point is that this is an amendment to secure an amendment of the
Constitution in case the Federal High Court, which is the body in whom we repose the
custody and care of our liberty from all kinds of legislative and executive encroachments,
decides, in regard to a particular law of the Commonwealth, that it is ultra vires. If the
question is of sufficient importance to warrant an amendment of the Constitution, let the
Constitution be amended under the provision of clause 121 in the ordinary constitutional
way. Why not? But if the matter be not of sufficient importance, why are we to be put to the
enormous expense of from £30,000 to £50,000 for a referendum on some matter which is of
not sufficient importance for it to be proceeded with in the ordinary way? Then my
honorable friend-of course being driven to find some reason why we should adopt this
method rather than the method we have all agreed to up till now under clause 121-says there
would be a saving of time. Now, what would be that saving of time? Under this provision,
should the High Court decide that a particular law is ultra vires, my honorable friend
proposes that the Executive Government should be able to come down to the Federal
Parliament with a resolution, which has to be carried by absolute majorities in both Houses,
in exactly the same way as a Bill which might be introduced under the clause providing for
amendments in the Constitution. The only time that would be saved would be any possible
diminution of time involved in the difference between carrying these resolutions and
carrying a Bill directed as far as possible to the same object. The saving of time would be a
mere bagatelle. Is it worth while purchasing that saving by disorganizing the whole of our
method-cumbrous as some think it is-of amending the Constitution? The game is not worth
the candle. It is not worth considering for a moment, seeing that the method prescribed in
this amendment is absolutely identical with the method provided in regard to ordinary
amendments of the Constitution.
Part 2 Page 113
Mr. HOLDER.-Purposely identical.
Mr. SYMON.-Then what is the use of debating it? This amendment may be described as
another means of spending [start page 1726] £30,000 or £50,000 on a referendum, without
the safeguards which should be essential in every possible proposal for amendment of the
Constitution, in a debate upon the different stages of the Bill. The machinery we have got
with regard to amendments of the Constitution would be as effectual and more satisfactory
than what is proposed in this amendment. I agree that if this means anything it means
neither more nor less than an amendment of the Constitution. Mr. O'Connor, in a very
pregnant interjection made in the course of Mr. Holder's speech yesterday, said-"How would
you deal with the case of a Bill going in substantially the same direction and dealing with
the same subject-matter?" Mr. Holder replied that he would leave it with the Drafting
Committee to frame a provision to deal with cases of that kind. But the objection entirely
dissolves the whole ground on which the honorable member bases his amendment, because
it would have the effect, as I think Mr. Glynn interjected, of introducing into the
Constitution the legislation which was called in question by the Federal High Court.
Mr. LEAKE.-It is also retrospective in its effect.
Mr. SYMON.-That is the point I was coming to, and I am much obliged to the honorable
member for calling my attention to it. But I do not wish to elaborate the point, because it
must be seen that the proposal has that vice. In addition to that, what does my honorable
friend (Mr. Holder) do? We all of us have the interests of the states at heart; but my
honorable friend leaves the state law to be declared ultra vires. Under this proposal you are
to protect the laws of the Commonwealth in an extraordinary and burdensome way, but not
the state laws, which the High Court may declare to be ultra vires. Why should not the
people of the states have a similar power of saying that their law is perfectly good, and that
they want it? That is what I meant by saying that this is a lop-sided arrangement. If you
want to amend the Constitution, amend it; but if you are dealing simply with a law declared
to be ultra vires, then I say that the states should be treated equally with the
Commonwealth, and it should be open to their particular citizens to say whether or not they
approve of the proposed alteration of the law. But you would introduce the greatest
complication into the Constitution by doing anything of the kind. An amendment of the
Constitution is a matter of grave importance, and to say that a Commonwealth law declared
to be ultra vires by the High Court is to be placed in a different position, and is to be treated
in a special way, in which a law of a state declared to be ultra vires is not treated, is grossly
unfair. You must, to be just, deal with both the states and the Commonwealth upon the same
method in regard to alterations of the Constitution.
Mr. HOLDER.-Will you support me if I put that in?
Mr. SYMON.-My honorable friend should not ask me to support such a proposition as
that, because he knows that I would do nothing of the kind; but I say that if his proposal is to
be adopted with regard to the laws of the Commonwealth, it is unjust that the states should
not be treated in the same way. I say that the states and the Commonwealth should have the
same advantage in this respect.
Sir JOHN DOWNER.-And why confine it only to questions of ultra vires?
Mr. SYMON.-Exactly. Why not say, that all laws of the Commonwealth shall be valid in
all respects, and that all laws of the states should also be valid? Then we should get into a
nice pickle. If a law is of vital and serious consequence to the Commonwealth, and is
declared to be ultra vires by the High Court, there is under the Bill an appeal to the people,
Part 2 Page 114
by means of the provision for amending the Constitution. Let that appeal be made, and let
the Constitution be amended; but do not let us introduce, a further [start page 1727] opening
for expense, and also for injustice, by an inefficient means of really amending the
Constitution, but which at the same time will leave unredressed the grievances which may
exist on the part of the state. I therefore hope that this amendment will be rejected as
altogether unnecessary, and as cumbrous and expensive; and as not even having the colour
of bringing about the redress of difficulties, which my honorable friend stated at the outset,
because the provision is not one which will have the effect of diminishing the possibilities
of litigation under this Constitution. No one more deeply sympathizes with the object of the
clause than I do, but some more effectual way must be devised to deal with this question.
This, instead of being an improvement, will be a distinct blemish on the Constitution we
have to frame.
Mr. ISAACS (Victoria).-I agree with Mr. Symon that there are difficulties raised which
are almost insuperable against the clause as it stands. There is not a single point in which
more facility is given for amendment of the Constitution than already exists in the Bill. You
want under this clause, as you want under the 121st clause, an absolute majority of both
Houses. You also want a majority of the states voting, and a majority of the people voting.
Mr. BARTON.-An absolute majority of both Houses directing a referendum, not for
passing a law.
Mr. ISAACS.-But they have already passed a law, and I take it that if you can get an
absolute majority of both Houses directing the referendum, there is no practical difference
between that and an absolute majority again passing the law. Because they virtually passed
the law as far as they could. Therefore, it seems to me there is no advantage gained from the
stand-point of desiring a better means of getting an amendment of the Constitution. Then, I
feet that it is open to the destructive criticism that it makes the law retrospective, and after
the court, possibly the Privy Council, has decided that the law is ultra vires, and people have
acted on that decision, being compelled to, act on that decision, or being compelled to
refrain from acting on the decision of the court, as the law is positive or negative; then we
should have under this referendum a law made operative as from the time of its original
passing, and penalties, both personal and pecuniary, might be incurred through no fault of
the individuals who had incurred them. That seems to me to be a defect to which we cannot
close our eyes.
Mr. WISE.-Besides, it would punish everybody who took the advice of a man who
interpreted the law properly.
Mr. ISAACS.-It compels everybody who has obeyed the decision of the higher courts to
act, or refrain from acting. That is a position which none of us would willingly get into, and
the retrospective action is wrong. I quite sympathize with the moving spirit that actuated
Mr. Holder, because I feel, as I said before, that our means of amending the Constitution are
lamentably defective. It is an attempt by Mr. Holder to prevent the strict interpretation of the
law from running counter to public opinion, even public opinion which may be definitely
expressed by means of a referendum. Complaints have been made, as we know, in America
that the Supreme Court is master of the Constitution; that there is no appeal from it, and that
the means of amending the Constitution to get rid of any particular decision, which time and
circumstances have made utterly contrary to the feelings of the nation, are practically
irremediable. I should say, in reference to the so-called safety-valve that has been provided
in America, even that one stigmatized as being only tolerable because it avoids a worse state
of affairs, namely, swamping the Supreme Court, is a mode which I find Mr. Dicey refers to
and does not reprove. In the last edition of his work on the Constitution, 1897, pages 166
Part 2 Page 115
and 167, he actually points out without disapproval, and, in fact, with [start page 1728] a
certain amount of approbation, the possibility of appointing more Judges to the Supreme
Court; the new Judges being, as he says, lawyers who share the convictions of the ruling
party. When we see that state of things referred to in such terms by so eminent and impartial
a writer as Mr. Dicey, we must not lightly treat the considerations brought forward by Mr.
Holder and dismiss them from our minds. I agree that the mode he suggests is one which we
can hardly follow. If it were proposed that a law passed by both Houses, and thus expressing
what is desired by public opinion-and by some strict construction of the Constitution that
desired end has been found impracticable-and that, both Houses having agreed to that law, it
should be competent for the Executive, upon an absolute majority of either House, to send it
to a referendum of the states and the people, I could understand that a better remedy was
provided, because you would have the states protected on the original vote passing the Bill,
and again in the referendum. If that course were adopted, I think this clause could be framed
so as to give us a better position than we, have under the Bill. But if we agree in the first
instance that both Houses should pass the Bill, as we must, and then require both the Houses
to refer the Bill to the people and the states, who are to pass it, we shall not get one bit
further than what we have got under the 121st clause. Unless the honorable member is
willing to amend his clause in that respect, we should only complicate matters, and if
retrospective operation were given to it we should be lending ourselves to what would
be, quite unintentionally on the part of the honorable member, a gross injustice.
Mr. BARTON.-What is the honorable member's suggestion?
Mr. ISAACS.-The adoption by an absolute majority in either House of Legislature,

instead of by both Houses. It presupposes both Houses have passed the Act; that the Act is
declared to be invalid; that subsequently public opinion has been found to be of such a
nature as to press for an adoption of such a law, and it is impracticable, because the
Constitution does not admit of it. Then either House must pass by an absolute majority a
resolution, and the Executive must refer the law to a dual referendum of the states and the
people. A double protection would be given, and that would ease the minds of a great many
people, not only in this colony, but, I dare say, in New South Wales, as to the question of an
amendment of the Constitution. It does not touch the question of deadlocks in ordinary
legislation, but only the amendment of the Constitution, and would go far to pave the way
for a better understanding on the subject than we now possess.
The CHAIRMAN.-I may shorten the debate if I point out that the amendment suggested
by Mr. Isaacs would be tantamount to an alteration of the decision already arrived at in
clause 121. In that clause it is decided that majorities of both Houses are necessary to alter
the Constitution. If Mr. Isaacs' amendment were carried it would negative that proposition,
and I do not think we can do that at this stage.
Mr. ISAACS.-I should like to mention one consideration which has not perhaps occurred
to your mind. I understood the decision was that, if the two Houses came into conflict, the
question should be referred on a motion passed by absolute majorities of both Houses. But
this is not a question of conflict between the two Houses, but where the two Houses have
agreed, and the Supreme Court has said that it is outside the Constitution. That seems to me
a totally different question, when the two Houses may not be in conflict, but either House
may pass this resolution, and then the Executive can refer it. I think that is a great
distinction.
The CHAIRMAN.-I would point out that clause 121 says that the provisions [start
page 1729] of the Constitution shall not be altered except in the manner following-that
Part 2 Page 116
is, by an absolute majority of the Senate and of the House of Representatives. That
seems to me to be conclusive.
Mr. BARTON (New South Wales).-I share in the objections which so many honorable
members have offered to this clause. I certainly hope that I shall not be taken to be speaking
simply as a lawyer, and with a desire that this Constitution should be under the law and
lawyers, when I express my objections to it. I agree with what has been said to the effect-
although there is a great weight to be attached to Mr. Holder's argument-that the clause will
operate as an appeal from the High Court to a popular authority-an appeal to an authority
which, at any rate, is not a competent authority on a question of law. As to the question of
making a law, the people ultimately are no doubt the best authority, but on the question as to
the reading of a law they can scarcely be the best authority. There is a difficulty in this
clause which also presents itself to me-that is, it works only one way. Where a law has
been decided by the High Court to be ultra vires, by this appeal to the people it may be
decided to be intra vires of the Constitution from the beginning. Take the case of a law
which the High Court decides to be within the Constitution, and which the people have a
very strong opinion is outside the bounds of the Constitution, and that the court has been
wrong there. Now, if it is right to make a clause of this kind operate for the purposes of
appeal in the one case, it is equally right to make it operate for the purposes of appeal in the
other.
Mr. ISAACS.-That is not necessary. The people have it in their power to repeal an Act if
they do not like it.
Mr. BARTON.-In this case the object is to enable the people to make valid that which
under the Constitution is invalid. If you make the clause work one way, what reason is there
for not making it work the other? With reference to the general effects of the clause, it
seems to be clear that where the High Court has wrongly decided a matter to be intra
vires of the Constitution, you provide no sort of way of dealing with it excepting by repeal.
It may be that repeal is the easiest method. This amendment is intended to get rid of the
decision of the High Court, which may be perfectly correct in law. I do not think that is a
course which will commend itself to our general sense and experience as being desirable. I
know that we are providing for new conditions, and there is weight to attach to every
argument which relies upon the novelty of these conditions. But still I do not think that this
is a course which should commend itself. If you take the case of any decision of the High
Court that a law is ultra vires-and the position would be worse if Mr. Isaacs' amendment
were adopted-having got that decision from the authority you yourselves have set up as the
ultimate arbiter, within your own bounds at any rate, on questions of constitutional law, you
then say that the finding of that tribunal may be rendered nugatory just as the Executive,
having a majority in Parliament, may choose by submitting it to the people. It may be
assumed that the Executive will feel the popular pulse before they do it. The conclusion then
is, that you deliberately weaken that will be the effect, although it may, not be the intention-
the authority of that tribunal. Would not such a provision operate very badly? I quite see that
the Hon. Mr. Holder has not submitted his clause with the view of taking the appeal from
the High Court to the people on a matter of law. All I am arguing is, that the effect of the
clause would be the same as if he had done so. There is not much difference between
saying, as is said in this clause, that when the High Court has decided a matter to be ultra
vires you may remit it to the people, who may determine that it is within the powers of the
Constitution, which would be a reversal in one sense of the decision of the High [start page
1730] Court, and saying boldly, and at once, that if the High Court declares the law to be
ultra vires the people may decide that it is intra vires.
Mr. SYMON.-It is a matter of form.

Part 2 Page 117
Mr. BARTON.-Yes, the difference between these two procedures is simply a matter of
form. In the clause the words are used "and the law shall be conclusively deemed to have
been intra vires of this Constitution from the passing thereof." The peculiarity of this part of
the clause is very striking, because the words I have read follow these words-"and if
approved as therein provided the Constitution shall be deemed to have been enlarged." If the
Constitution is to have been deemed to have been enlarged for that contingency it is only
because the law was ultra vires. If you carry that further and say that it is intra vires, what
do you want with any enlargement? It is quite inconsistent. It amounts to saying that the
Constitution has been enlarged, and that is only necessary if the law was ultra vires. And yet
it is followed by the words-"and the law shall be conclusively deemed to have been intra
vires," which is to decide that the High Court was not right but wrong.
Mr. KINGSTON.-That is like the passing of a Validating Act.
Mr. BARTON.-No; a Validating Act does not put things in that way, and I say that that is
an objection of more than form. When you say that the Constitution shall have been deemed
to have been enlarged, you decide that the Constitution requires amendment in that
particular, but when you say that the law shall be conclusively deemed, to have been intra
vires from the passing thereof, then you decide that the Constitution does not require
amendment. There is very considerable not only ambiguity, but contradiction in the
proposal. What are we asked to authorize the people to do-to decide that the High Court was
right? In which case their decision could only have effect if it operate as an enlargement, or
to decide that the High Court is wrong, in which case the Constitution is sufficient from the
beginning. We ought to know which road we are to take before we vote on the clause. It
seems tome that the objection there is a strong one, and that it requires some answer. I shall
not now repeat the arguments adduced by other honorable members against the clause. That
is unnecessary. But I do say that I have not been at all convinced that it is our duty to adopt
the clause.
Mr. ISAACS.-There is one additional difficulty, which my honorable friend (Dr. Quick)
has suggested. The Constitution would be deemed to be enlarged by the passing of a law,
but if you wanted to alter or amend it you could not do so.
Mr. HOLDER.-That is the point Mr. O'Connor mentioned last night.
Mr. BARTON.-That is to say that, the law having been passed, and the Constitution
having been enlarged, the Constitution has been amended.
Mr. ISAACS.-That is all. You could not alter a word of it.
Mr. BARTON.-No, you would have to take the question of whether the Constitution was
really amended or enlarged; but the decision might mean that the Constitution did not
require enlargement at all.
Mr. HOLDER (South Australia).-I will deal with the speeches in the order in which they
were given. I note that, although the Hon. Mr. Symon said that the matter was not worthy of
a moment's consideration, he proceeded to talk for about half-an-hour about it, and his
speech consisted mainly in setting up bogies that were not in the amendment, and knocking
them down again after they had sufficiently frightened the Convention. I need say no more
about these bogies, because they were not present in my mind, and they do not appear in the
amendment. I am obliged to the Hon. Mr. Isaacs for the speech he delivered, which shows
that the feeling of which I have a [start page 1731] knowledge is also within his knowledge
the feeling that the Constitution we are framing is somewhat too rigid, that the modes of
Part 2 Page 118
amendment are few and difficult, and that greater ease of expression of the popular will
would be an advantage. I am pleased to have the recognition which the honorable and
learned member gives of the fact that these views are not confined to South Australia. As to
the particular points raised both by Mr. Isaacs and the Hon. Mr. Barton, I want to say this:
That what is contemplated is actually an amendment of the Constitution. It is not intended to
be an amendment by a side-wind, but an amendment with all the necessary delay and all the
necessary expense which it is contemplated any such amendment should involve. I did not
imagine for a moment that I was going to make a short cut to any amendment of the
Constitution by which damage might be done to either state or national interests. I think that
I have duly safeguarded both state and national interests, while providing a speedier method
of altering the Constitution. So far as the objection raised by the Hon. Mr. Barton on the
matter of a law being declared ultra vires is concerned, there is no idea of submitting to the
popular verdict any legal decision of the High Court or of any court. When the Parliament
determines under this clause to refer any matter to the people they accept the verdict of the
court as being true and right. If they do not accept it their course will not be to refer it to the
people, but to send it to a court of appeal. The fact that they do refer it to the people shows
that they recognise that the matter was outside the powers of the Federal Parliament, and
that they seek to have those powers enlarged. The form of words adopted means this-that
the enlargement of the Constitution is to be somewhat dated back. It is to be retrospective,
not in the sense of a challenge, but rather the reverse, of the decision of the court. The
enlargement of the powers is made retrospective cover the particular question at issue. With
regard to the last point mentioned by Mr. Isaacs, on the suggestion of Dr. Quick, I referred
to it yesterday evening when replying to an interjection from the Hon. Mr. O'Connor. I can
conceive of almost no case where the enlargement of the Constitution would not be
sufficiently clear and definite in its outline to enable anything to be done which might be
required in the future. I will take a case as illustrating the general trend of the amendment.
Supposing such a case occurs as occurred recently in the United States, and that an Income
Tax Bill is passed by the Federal Parliament. It is discovered-though I do not think it could
be under our Constitution, I am merely discussing it as an illustration-that the Federal
Parliament has exceeded its powers. The High Court or some other competent court rules to
that effect. The conviction of the Federal Parliament is that the people intended that they
should have this power, and that it is owing to an oversight or to a technical defect in the
law that they have not the power. Now, two courses may be taken. They may rely on clause
121. In that case the Bill which has been passed by the Federal Parliament, and declared
ultra vires by the High Court, would be laid aside, and a measure would be introduced for
the amendment of the Constitution. That measure would have to be passed by both Houses,
and a vote of the people taken upon it. If the vote was given in the affirmative, a new Bill
would have to be brought in providing for the income tax. The first law would be absolutely
set aside, and a very considerable delay would take place, although the popular will had all
along been in its favour, and the popular belief was that the making of such a law was
within the powers of the Federal Parliament. My clause would shorten matters very much.
As soon as the court declared the Bill to be ultra vires the Federal Parliament could [start
page 1732] refer the matter to the popular vote. If the vote was given in the affirmative, then
that law would have been from its first passage intra vires. The enlargement of the
Constitution enabling the Federal Parliament to pass an Income Tax Bill would be dated
back to the time when the Bill was first passed, and it would have been all along the law of
the land. The financial arrangements of the whole Commonwealth, which might have been
made on the faith of that Income Tax Bill being intra vires, would not be upset, as they
would be if a new Bill had to be introduced. I am afraid that there is only too much force,
however, in the suggestion of the honorable and learned member that my proposed new
clause-I did not see it before-is in conflict with clause 121. I will therefore forestall any
declaration to that effect upon the part of the Chair by asking leave to withdraw my
amendment. I hope, a little later on, after consultation perhaps with the honorable and
Part 2 Page 119
learned member, to bring forward a proposal which will not be antagonistic in its terms to
clause 121, and which will tend to make the amendment of the Constitution in accordance
with the popular will as speedy a process as possible.
Sir EDWARD BRADDON.-Does the honorable member think that if an appeal were
made to the people to upset the judgment of the Supreme Court, the case could be so clearly
put before the electors that they would be able to give an intelligent verdict upon it?
Mr. HOLDER.-I should not dream for an instant of asking the people to consider, much
less to either confirm or reverse, any decision of any competent court, because I do not think
that they would be competent to pronounce an opinion in regard to such a matter. But I
would allow the people to say-"The Supreme Court is right, and to cure the defect in the
Constitution which has been sprung upon us we want to see it enlarged, so that another
similar decision will be impossible." I do not propose to ask the people to adjudicate upon
the decisions of the Supreme Court, but I wish to give them power to enlarge the
Constitution in accordance with the decision of the Supreme Court.
Mr. Holder's proposed new clause 121A, was, by leave, withdrawn.
The usage of the word by the Framers of the Constitution during the Constitution Convention
Debates as well as shows;
Mr. ISAACS.-It compels everybody who has obeyed the decision of the higher courts to
act, or refrain from acting. That is a position which none of us would willingly get into, and
the retrospective action is wrong.
It is a constitutional principle therefore that retrospective legislation is wrong as to turn anyone

into some Criminal where at the time of the conduct of the person occurring the conduct may have
been legal to the laws then existing.
In my view, this is embedded in the Constitution that no kind of retrospective legislation can be
lawful!
As for the Hiugh Court of Australia to decide a matter to be intra vires it later could reverse this
decision where it has before it a case that shows that an earlier decision was ill conceived or
otherwise arrived at an incorrect conclusion. This is very obvious an issue where judges
adjudicating are to my knowledge not “constitutionalist” and as shown in the Sue v Hill, the
MABO case, the Franklin Dam case, the Hindmarsh Bridge case, Sykes v Cleary and numerous
other cases failed to hand down judgment based upon the correct interpretation of the Framers of
the Constitution as expressed in the Hansard records of the Constitution Convention Debates.
In the 1943 case where the High Court of Australia made a ruling as to the Constitutional powers
of the Commonwealth of Australia it then seemed to rule that the Commonwealth of Australia in
time of war had some power as to a persons liberty. Clearly the Hansard records of the
Constitutional Convention Debates proves otherwise. Just that the judges at that time never did
consult the Hansard records of the Constitution Convention Debates. Now we have where the
Federal government has declared some “WAR ON TERRORISM”, by this seeking to invoke
some purported legislative powers to deny citizens their constitutional rights and freedoms.
Constitutionally, the “WAR ON TERRORISM” is a LEGAL FICTION, as such a war cannot
exist. There is no constitutional concept to provide for this, yet, we find people detained and even
sentenced (For example Jack Thomson, a.k.a. Jihad Jack) and by this stripped on their electoral
rights even so the person constitutionally could not be deemed to have committed any crime.
As already earlier stated above;

Mr. BARTON.-
If we are going to give the Federal Parliament power to legislate as it pleases with
regard to Commonwealth citizenship, not having defined it, we may be enabling the
Part 2 Page 120
Parliament to pass legislation that would really defeat all the principles inserted
elsewhere in the Constitution, and, in fact, to play ducks and drakes with it.
And
the laws regarding property and personal liberty is still left with the states.
Without a DECLARATION OF WAR and without any actual attack upon the Commonwealth
of Australia there is no constitutional conception of there being any WAR.
The manipulation of the term WAR never should be permitted by judges but regretfully, they
merely assume that the Commonwealth of Australia is correct in its legislation as there are no
“constitutionalist” who are consulted to first address the right to legislate for matters such as the
so called Terrorist Act, where amendment were made to the ASIO Act to cover alleged terrorist.
It is for this also that we require an OFFICE OF THE GUARDIAN so that citizens are not
terrorised by unconstitutional legislation and denied by the High Court of Australia, albeit
unconstitutionally, to canvas these issues before the highest court of the country where the
Framers of the Constitution specifically provided for such a right.
In my view, this also relates back to the Governor-General and his political appointment involving
the Australian Prime Minister of Australia as to enable the Australian Prime Minister to influence
the governor-General as to whom to appoint to the bench of the High Court of Australia rather
then to have, as what is required constitutionally, the Governor-General is appointed by the
Monarch upon the advise of the Home Office at Downing Street, excluding the involvement of the
Australian Prime Minister, as to ensure that the Governor-General represents the British
Monarchy and is not some, so to say, lame duck that is a political football for the Australian Prime
Minister, and by this goes along perhaps making political appointment of judges to the High Court
of Australia regardless that those judges may lack any proper training for this and are not
constitutionalist.
It is an absurdity that a person like myself who never had any formal education in the English
language and who’s native language neither was English and who had no formal education in
legal studies, somehow ends up having a better perception and understanding regarding certain
constitutional issues then any of the judges of the High Court of Australia ever had.
Little wonder to me that then the High Court of Australia repeatedly refused to allow my cases to
be accepted as being filed, even so they were lodged with the Court, and refusing ongoing to hear
and determine applications upon their MERITS because simply they do not seem to be able to
comprehend/understand what it is about.
My right to have an adjudication by my peers, or by a competent Court clearly is eroded by this.
And in the case of a person like Mr jack Thomas he ends up with a conviction where as I
understand it even the jury was deceived as to its constitutional right to invoke
NULLIFICATION.
WHAT WE NOW SEEM TO HAVE IS THAT THE RULE OF LAW NO LONGER SEEMS TO
BE RELEVANT BUT RATHER WHATEVER POLITICAL DOCTRINE OF THE DAY IS
SEEKING TO BE ACHIEVED AND JUDGES APPEAR TO ME TO IGNORE THEIR LAID
UP DUTIES IN THE PROCESS BY GOING ALONG TO CONVICT PEOPLE WHO HAD
JUDICIAL OFFICERS APPLIED TRUE CONSTITUTIONAL PROVISIONS AND
LIMITATIONS NO CONVICTION EVER COULD HAVE RESULTED.
Part 2 Page 121
We have for example that the Minister for foreign Affairs refuses to issue a passport for
Australian citizen allegedly upon the basis of it being against the interest of the Commonwealth of
Australia. This kind of unconstitutional and illegal activity to deny an his right to emigrate or
otherwise leave the Commonwealth of Australia clearly is tyranny. See also Talbot v. Janson, 3
U.S. 133 (1795)
Yet, judges are simply unaware of this kind of tyranny being unconstitutional and so illegal
because we lack an OFFICE OF THE GUARDIAN, a constitutional council, that they can
consult as to what constitutional powers and limitations are applicable.
It means that judges are adjudicating, even in good faith upon matters convicting people wrongly
because they rely upon unconstitutional (so ULTRA VIRES) legislation but they have no proper
avenue available to them to become aware of this.
It is very unlikely any judicial officer could possibly use the amount of time as I have to research
time and again the Hansard records of the Constitution Convention Debates as to understand
what the true intentions of the Framers of the Constitution really was about.
In my various published books I have quoted comments which in themselves might not alert any
person as to their meaning but in the context of other comments quoted a fast different picture
emerges then that any person otherwise may elicit from it.
The issue of “disability” referred to by the Framers of the Constitution dealing with legislation
enacted within Subsection 51(xxvi) is a clear example where unless one is a constitutionalist
having extensively researched it all one simply would overlook the relevance of such comments
and not being aware that any legislation enacted within the constitutional powers of subsection
51(xxvi) as to “race’ automatically disqualifies any person of such a race of “citizenship” and so
“franchise”, both State and Federal.
Mr. BARTON.-But if he is under any disability under any regulation of the [start
page 1787] Commonwealth he would cease to be a citizen, however slight that disability
might be. I doubt whether the honorable member intends that. There is power by law to
regulate the people of any race requiring special laws. There may be some purely regulative
law passed, not imposing any special restriction on any person of that kind who may be a
subject of the Queen. That regulation, if it were of the mildest character, under this
definition, would deprive him of his rights.
It is therefore very clear that;

That regulation, if it were of the mildest character, under this definition, would
deprive him of his rights.
And hence albeit it was held;
Hansard 3-4-1891
Sir SAMUEL GRIFFITH: I do not think there is any inconsistency. Each state is
allowed to prescribe who are to be its electors-it may say anything it pleases about that. I do
not think that an electoral law saying that only British subjects shall vote can be said to be a
special law applicable to the affairs of the people of any race for whom it is thought
Part 2 Page 122
necessary to make special laws not applicable to the general community. I think that would
be rather a far-fetched construction of the provision.
Hansard 28-1-1898 Constitution Convention Debates;
Mr. KINGSTON.-By its lessees or any one else. Pushed to a legitimate conclusion his
argument would amount to this: That the state might dictate as to the right with which each
person could step ashore on to that soil. I do not think the matter should be viewed solely
with regard to our dealing with alien races, who will chiefly come within the scope and
purview of this sub-section. We ought to deal with the matter not on local or provincial, but
on broad Australian lines. I know that in this respect I differ a good deal from many with
whom I generally work in sympathy, but the view which I venture to propound is this-that
if you do not like these people you should keep them out, but if you do admit them you
should treat them fairly-admit them as citizens entitled to all the rights and privileges
of Australian citizenship.
Mr. TRENWITH.-And compel them to observe the same rules as other citizens?
Mr. KINGSTON.-Yes, compel them to observe the same rules as other citizens, but
impose no special rules intended for their special injury and to emphasize what some may
consider the degradation of their position. Sir, I think that in connexion with this coloured
races question we should do whatever we can for the purpose of keeping out coloured
races, and I recollect with considerable interest and some pride that I had the pleasure of
being associated with Mr. Deakin at the Chinese Conference in 1888, when an Australian
policy was agreed to-a policy [start page 247] which had the effect, to a very considerable
extent, of limiting the introduction of these coloured people. I think that subsequent events
have shown, not only the wisdom of that policy, but also that, if it had a defect, its only
defect was in not going sufficiently far.
Mr. DEAKIN.-Hear, hear.
And
Mr. KINGSTON.-I am not going to say whether it is disgraceful or not. I disagree with it.
As I was saying, I have always set my face against special legislation subjecting these
coloured immigrants to particular disabilities, whether it is, as in one province, providing
that a single Chinaman shall constitute a factory, or whether, as in our colony, it is the
prevention of the ownership of mineral leases by Chinamen. I think it is a mistake to
emphasize these distinctions. Keep these coloured people out if you do not want them
here, but if you admit them and do not want them to be a standing source of
embarrassment in connexion with your general government, treat them fairly, and let
them have all the rights and privileges of Australian citizenship.
Sir JOHN FORREST.-Would you give them the right to vote?
Mr. KINGSTON.-I do not think we ought to give them the right to vote.
Mr. PEACOCK.-They are here now, and they are naturalized citizens.
Mr. KINGSTON.-Then that is an additional reason for according them the full rights
of citizenship, and, as regards not giving them the right to vote, I put it to honorable
Part 2 Page 123
members that the proper course is to decide that question by Australian legislation,
and I should be undoubtedly found supporting a proposal which, as regards future
arrivals at the least, would prevent them being admitted to the exercise of the
franchise.
Sir JOHN FORREST.-You would not give them all the rights of citizenship, then?
Mr. KINGSTON.-I would not allow them to come here in the hope of exercising those
rights, but I trust also that they will be kept out. There is no doubt whatever, it seems to me,
that one of the most important subjects that the Federal Parliament will have to deal with as
regards the regulation of these coloured immigrants-a subject second only in importance to
that question-is the question of the Australian treatment of those immigrants when they are
here; and just as I think that every one of those subjects ought to be dealt with by federal
legislation, so I think that, only in a secondary [start page 248] degree, the same remark
applies to the question of how the coloured people who are here shall be dealt with. The
result will be, if one colony is allowed to subject these coloured people to special
disabilities, to force them into the other colonies where they are more favoured, but no more
wanted. The broad view of the matter, which I venture to adopt, is that it is an Australian
question, and should be dealt with by the Federal Parliament, land by the Federal Parliament
only. Some question has been raised as to whether or not this power-if conferred on the
Federal Parliament in the shape in which we find it in the Bill-will prevent the local
Legislatures from dealing with the question pending federal legislation.
Mr. PEACOCK.-That is the whole point.
And
Mr. KINGSTON.-Clause 100 has some reference to the matter, but a more important
point was the one taken by Mr. Clark, then Attorney-General of Tasmania, and concurred in
by Sir Samuel Griffith at the Convention in 1891. Mr. Clark called special attention to the
use of the expression-"the people of any race with respect to whom it is deemed necessary to
make special laws not applicable to the general community" and he asked-"By whom is it
to be deemed necessary?" The answer, of course, is-"By the Federal Parliament." Mr. Clark
asked-"Do we know when the Federal Parliament will deem it necessary to make special
laws not applicable to the general community?" And the answer is-"Not until the Federal
Parliament exercise that power."
Mr. TRENWITH.-But whether the Federal Parliament deem it necessary to make such
special laws or not, their power to do so is exclusive.
Mr. KINGSTON.-It is only exclusive in connexion with the question that arises after the
declaration by the Federal Parliament that it is necessary to make such special laws.
For the record the Aboriginal and Torres Strait Islanders Act is unconstitutional as it deals tih
more then one specific race.
What we have is that the Racial Discrimination Act 1975 clearly is beyond Commonwealth
constitutional powers as it is directed against the “general community” and by this is a disability
of every member of the “general community” which includes every “elector”. Hence, in that
regard, albeit unconstitutionally, every person within the term of the “general community” has
been robbed of “citizenship” and so electoral rights. Meaning, that technically no one is entitled
to vote by not being an elector, by not having citizenship! As the Framers of the Constitution
made clear that any unconstitutional law was ULTRA VIRES, but remained law until challenged.
Part 2 Page 124
I for one have challenged the validity of the Racial Discrimination Act 1975, as it is not a law
against a specific race but against the “general community”.
As set out above, Aboriginals are not even citizens, as they lost it because of legislation within
section 51(xxvi) but also the citizenship of others are in question, where by the very existence of
the Commonwealth Racial Discrimination Act 1975 they (the general community) all lost
citizenship. And, as the Attorney General for the State of Victoria made clear, there is no State
citizenship! Then how on earth can anyone have Commonwealth citizenship and how on earth can
then anyone be an elector? How then can I be in breach of law, where constitutionally required
State legislation to provide State citizenship and so Australian citizenship does not exist?

Dr. QUICK.-
Such a disability might be imposed under the clause which we put into the Bill some time
ago, empowering the Federal Parliament to deal with foreign races and undesirable
immigrants. The Federal Parliament is empowered to declare that these races shall be placed
under certain disabilities, among which might be that they shall not be capable of acquiring
citizenship. The definition which I have suggested would not open the door to members of
those undesirable races, and it would empower the Federal Parliament to exclude from the
enjoyment of and participation in the privileges of federal citizenship people of any
undesirable race or of undesirable antecedents.
And
Mr. BARTON.-But if he is under any disability under any regulation of the [start page
1787] Commonwealth he would cease to be a citizen, however slight that disability might
be. I doubt whether the honorable member intends that. There is power by law to regulate
the people of any race requiring special laws. There may be some purely regulative law
passed, not imposing any special restriction on any person of that kind who may be a
subject of the Queen. That regulation, if it were of the mildest character, under this
definition, would deprive him of his rights.
Mr. KINGSTON.-There might be a special disability on minors.
Mr. BARTON.-That might be one of the disabilities. Of course here the disabilities as
to minors would not matter much, but I would like to put this consideration to Dr. Quick,
that if we use the term "subject," or a person subject to the laws, which is a wider term, we
shall avoid the necessity for a definition of "citizen." You might say a subject or resident
being the subject of the Queen.
Sir GEORGE TURNER.-Subject to the laws will be too wide.
Mr. BARTON.-Yes, it might be. The expression "resident subjects of the Queen" would
avoid the necessity of having a definition of a term which only occurs in one place in the
Constitution. I do not know how Mr Symon would take the suggestion, but it is far better not
to import the word "citizen" here if we can deal with it by a term well known in the
constitutional relations of the empire between the Queen and her subjects.
Part 2 Page 125
And
Mr. ISAACS (Victoria).-I am afraid that the amendment is far too wide, unless we say
that the disabilities imposed by Parliament may extend to birth and race. This would,
notwithstanding the rights conferred under clause 52, deprive Parliament of the power
of excluding Chinese, Lascars, or Hindoos who happened to be British subjects.
And
Mr. GLYNN.-There is power under the Bill to make special laws with regard to
territories, and I am not sure that we could not constitute a certain class of citizenship
for the territories.
Mr. BARTON.-That power would be exercised subject to the Constitution. If you make
the matter safe so far as the citizens of the territories are concerned in the Constitution,
legislative power could not interfere with them.
Mr. GLYNN.-I understand that you can make any provision you like as to
representation and otherwise until the territories become states. Their position in the
Constitution is purely provisional. I can see the force of the point, and I admit that my
amendment does not cover it. The proposal I have suggested puts the definition in the same
position as in America. Citizens of the Commonwealth are citizens of the state in which
they reside, and they also have, as Mr. Symon suggests, the privileges and immunities of
citizens of the several states. There is only one other means by which you could do what is
wanted, and perhaps it is the best: That is to adopt the principle of the German Constitution,
which says that there shall be a common citizenship, and that the rights of the citizens in
one state shall attach to the citizens in the other states. That would place it in the power of
the Federal Parliament to declare what are the conditions of citizenship. There would be
power under a provision of this kind to say that an alien should not be a citizen until he
had resided five years in the colony, while the citizenship would be uniform in its
character throughout the Commonwealth. In America, aliens have been prevented from
becoming citizens unless they have resided in the place for five years. They must then be
citizens for seven years before they can stand for Parliament. Honorable members will see
that by adopting the principle of the German Constitution we could prevent any special
rights being given to aliens, and I think it would be better in that form. I desire to call
attention to this point also, that even if you do not define citizenship at all in the
Constitution there would be very little harm done. It seems to be forgotten [start page
1790] that in the American Constitution the word citizen is used. It is not used in our
Constitution. In the original American Constitution the word "citizen" is for instance used in
connexion with representation in Parliament. A man must be a citizen for seven years before
he can be returned as a representative, so that there is a special reason for the definition
given to the term citizen. Here we do not use the word citizen. We use the word
"resident" only. The qualification for a Member of Parliament is residence for three years,
and very little harm will be done if we leave out "citizen" altogether. If the Convention do
not adopt a suggestion such as that I have made, the better plan will be to fall back on the
principle of the German Constitution, which would enable us to make special laws regarding
aliens. I would like to mention, in connexion with what Mr. Isaacs said as to aliens, that
this provision would not interfere in the slightest degree in the way of preventing aliens
from coming in, because it is only when the aliens get inside the Commonwealth that
this provision is to apply to them. The decision of the Privy Council in the case of Ah Toy
v. Musgrove was that an alien had no right to land here, but that decision does not affect
his citizenship after he has landed. Mr. Musgrove, then Secretary for Customs, prevented
Part 2 Page 126
Ah Toy from landing. Ah Toy brought an action for assault and battery against him, but the
Privy Council held that that action could not be justified.
Again;
The decision of the Privy Council in the case of Ah Toy v. Musgrove was that an alien had
no right to land here, but that decision does not affect his citizenship after he has landed.
As the Framers made clear, once a person has entered then he can participate as like any other
citizen in the general community. Regretfully, the Commonwealth of Australia now makes a
mockery of this, to even imprison/deport people like Vivian Solon, an Australian national,
because of the crummy way, so to say, “citizenship” is abused and misused for ulterior purposes
in conflict to the intentions of the Framers.
QUOTE 19-11-2002 correspondence to Victorian Attorney-General
WITHOUT PREJUDICE
Attorney General 19-11-2002
Victoria
Fax 9651 0577 AND TO WHOM IT MAY CONCERN
URGENT
Sir/Madam
Since 27-9-2002 I sought clarification about what, if any State citizenship I have as
to be able to obtain Australian citizenship, yet, in the recent 18 November 2002 response it was
stated;
“As explained in my previous letter, citizenship is a matter

for the Commonwealth, not the States. You indicated that
you were naturalized in 1994. As result of that, you are an
Australian citizen.”
This utter ridiculous response was provided by RUVANI WICKS, Assistant Director, Civil
Branch of the Department of Justice.
Edmund Barton (later becoming the first Prime Minister of Australia and thereafter a judge of the
High Court of Australia) made very clear during the convention, that if it isn’t in the Constitution,
then the Commonwealth had no legislative powers.
RUVANI WICKS refers me to the Commonwealth Government to sort out matters, however this
is clearly unacceptable, this, as the State of Victoria and not the Commonwealth deals or must
deal with State Citizenship!
Unless you can point out when there was a reference of legislative powers from the State of
Victoria to the Commonwealth approved within Section 128 of the Commonwealth constitution, I
view, there never was and still is no constitutional legislative powers by the Commonwealth to
determine State or any other citizenship!
At most, the Commonwealth, could determine “citizenship” as the local law for the Act and
Northern Territory through the parliaments governing those Territories (being Quasi States) as
they are not limited to constitutional provisions, however there never was any Constitutional
powers for the Commonwealth to grant citizenship to any resident of a State, neither determine
citizenship of a citizen of a State!
If your Department nevertheless maintains that the Commonwealth has the legislative powers to
determine citizenship of residents of the State of Victoria then please do set out in which
Part 2 Page 127
Constitutional manner the Commonwealth had this power from on set, if any, and/or how it
obtained this legislative power since the formation of the Commonwealth!
If anything, the Department of justice ought to be well aware that unless it is done lawfully it is
ULTRA VIRES!
END QUOTE 19-11-2002 correspondence to Victorian Attorney-General
No further reply was received by me upon this.
What was shown was that the Victorian government also had seemingly gone along to
confuse Australian citizenship with state citizenship! And that is the real problem. Somehow
everyone, other then me, seems to have lost reality as to what is applicable.
Likewise, other States seemed to have gone along, despite constitutionally the purported
“Australian citizenship” could never substitute the constitutional powers of the states to
legislate for State citizenship. No State citizenship then no Commonwealth citizenship and so no
electoral rights either! Yet, even this basic issue still seems to remain unresolved! Still, Section
245 of the Commonwealth Electoral Act 1918 cannot be enforced unless the CDPP can show to
the Court that somehow I did obtain “State citizenship” (political rights) and so invoked Section
41 of the Constitution to obtain electoral rights in “Commonwealth citizenship”.
The problem we now are facing also is that the, so to say, con-job 1967 referendum was to purport
to give Aboriginals equality in voting. This, even so Aboriginals already voted in the first federal
election, but were since then unconstitutionally denied to do so. Amending Section 51(xxvi) to
allow the Commonwealth to legislate in regard of Aboriginals, had a far wider implication then
was considered by the electors. Not only did all Aboriginals by this “disability” loose their
electoral rights, no longer being a “citizen” but also the Commonwealth then passed the Racial
Discrimination Act 1975, which was against the general community. Hereby all persons of the
General Community lost their citizenship likewise, albeit unconstitutionally.
The PRESIDENT took the chair at half-past ten o'clock a.m.
COMMONWEALTH OF AUSTRALIA BILL.
The Convention resolved itself into committee of the whole for the further consideration
of the Commonwealth of Australia Bill.
Discussion (adjourned from the previous day) was resumed on sub-section (1) of clause 53
(Exclusive powers of the Parliament), which was as follows:-
The affairs of the people of any race with respect to whom it is deemed necessary to make
special laws not applicable to the general community; but so that this power shall not
extend to authorize legislation with respect to the affairs of the aboriginal native race in any
state.
Dr. QUICK (Victoria).-I have always been under the impression that this clause embodied,
certainly, one of the most valuable powers to be conferred upon the Federal Parliament, and
have indicated that view during my federation campaign as a strong argument in favour of
federation, inasmuch as this power gives the Federal Parliament control over the
immigration of aliens. But the discussion which has taken place upon the matter shows the
importance of debate. I think that no time has been wasted in the discussion of sub-section
(1), which is worthy of full ventilation. I would like to bring even more closely under the
notice of the Drafting Committee the real import and significance of the provision. My
Part 2 Page 128
honorable friends in the representation of Victoria yesterday drew attention to a point of
considerable importance as to the possible effect of this sub-section in preventing the local
Legislatures from dealing with the alien question up to a certain point. There can be no
doubt as to the desirability of conferring unlimited powers on the Federal Parliament to
prevent the introduction of foreign coloured races. It may be thought that that power is
conferred on the Federal Parliament under other clauses in the Constitution. This sub-
section, as I understand it, is restricted in its operation to people of certain races when they
are within the jurisdiction of the Commonwealth. I would like to suggest whether it is wise
to withdraw all power and jurisdiction from the Federal Legislature upon such people within
certain limits. Sir John Forrest, yesterday, touched upon the fringe of the subject I am
discussing when he mentioned that there are certain laws in Western Australia which
prevent certain coloured races from having miners' rights, or from going on the gold-fields,
or holding hawkers' licences.
Mr. PEACOCK.-There is a similar provision in our Mines Act.
Dr. QUICK.-And in the Victorian Mines Act there is power to insert in the covenants of a
mining lease a provision that the employment of Chinese labour shall not be permitted to be
a compliance with the labour covenants of the mining law. That is, of course, an important
power to be held by any Parliament, and it is a power which is restricted within the
territorial limits. It is not proposed in this Constitution to take away from the state
Legislatures jurisdiction over mines and minerals. I would, therefore, like the Drafting
Committee to consider whether this sub-section, as it stands at present, will not prevent the
Parliament of Western Australia from abstaining from granting miners' rights to coloured
aliens, and prevent the Parliament of Victoria from continuing to enforce the proviso that
the employment of Chinese labour shall not be a compliance with the labour covenants of
the mining law?
Mr. DEAKIN.-Read clause 110 in connexion with that.
Mr. BARTON.-That applies rather to the administration of the laws, I think.
[start page 246]
Dr. QUICK.-The clause alluded to by Mr. Deakin says-
A state shall not make or enforce any law abridging any privilege or immunity of citizens
of other states of the Commonwealth, nor shall a state deny to any person within its
jurisdiction the equal protection of the laws.
It may be that that clause supports the view that the state would not be able to impose
disabilities upon coloured aliens.
And
Mr. KINGSTON.-Clause 100 has some reference to the matter, but a more important
point was the one taken by Mr. Clark, then Attorney-General of Tasmania, and concurred in
by Sir Samuel Griffith at the Convention in 1891. Mr. Clark called special attention to the
use of the expression-"the people of any race with respect to whom it is deemed necessary to
make special laws not applicable to the general community" and he asked-"By whom is it
to be deemed necessary?" The answer, of course, is-"By the Federal Parliament." Mr. Clark
asked-"Do we know when the Federal Parliament will deem it necessary to make special
Part 2 Page 129
laws not applicable to the general community?" And the answer is-"Not until the Federal
Parliament exercise that power."
Again;
-"the people of any race with respect to whom it is deemed necessary to make special laws
not applicable to the general community"
What we now have is that judges are adjudication upon LEGAL FICTION rather then upon
constitutional reality. As I view it they have been “brainwashed” during legal studies and
otherwise to accept the term “Australian citizenship” being Australian nationality and determining
the right of franchise by this even this clearly is unconstitutional.
A clear example of judges adjudicating upon a LEGAL FICTION is in the High Court of
Australia case of Mr. John Murray Abbott deemed to have a DEBT TO THE
COMMONWEALTH in regard of child support, even so no such constitutional powers in the
first place exist for the Commonwealth to turn children into slaves as to make a private debts into
some kind of DEBT TO THE COMMONWEALTH, as I have already canvassed extensively in
my already published books.
In the Abbott case the High Court of Australia upheld that Mr John Abbott had a DEBT TO THE
COMMONWEALTH as claimed by the Child Support Agency throughout previous litigation
involving the Magistrates Court of Victoria, the Family Court of Australia and the Full Court of
the Family Court of Australia. The irony is that after Mr Abbott lost his High Court case then the
Child support Agency refunded the moneys already obtained upon the basis that it found there
was after all not DEBT TO THE COMMONWEALTH at all. As such, each and every Court,
including the High Court of Australia had adjudicated upon a LEGAL FICTION that there was a
DEBT TO THE COMMONWEALTH even so there was none.
The Hon. E. BARTON: If the subclause can be amended in the direction which the hon.
and learned member suggests, my objection will have disappeared, and there will be a
reasonable consistency in the law. I think the difficulty might be overcome by inserting
before the words "parental rights" the word "also," and at the end of the sub-clause the
words "in relation thereto."
Mr. SYMON (South Australia)[3.51]: Is it worth while to deal with the matter in that way?
If you give the federal parliament power in relation to marriage generally and divorce
generally, then anything that concerns parental rights and the custody and guardianship of
infants is connected with either one or the other. It seems to me that if you intrust the federal
authority with the power of dealing with marriage and divorce, which involves everything
relating to the highest earthly ties-that of marriage-it ought, consequent on that, also to
regulate the custody of infants. It does not involve what the hon. member, Mr.
Carruthers, seems to think is in the minds of many who see some objection to this-that
it might empower the federal authority to interfere with domestic relations in some
mysterious manner so as to reduce children to a position of slavery. This is a control
that seems to me to be consequent upon marriage, and which might come into operation,
perhaps, in relation to all matters of divorce; but it is not confined to matters of divorce, and
might depend simply on marriage when the question of divorce does not arise. It will,
perhaps, be better to leave the sub-clause as it is and consider the matter further later on.
Again;
Part 2 Page 130
It does not involve what the hon. member, Mr. Carruthers, seems to think is in the
minds of many who see some objection to this-that it might empower the federal
authority to interfere with domestic relations in some mysterious manner so as to
reduce children to a position of slavery.
Yet, the Commonwealth of Australia somehow has turned a “private debt” into a FICTITIOUS
“DEBT TO THE COMMONWEALTH” even so this in effect turn children into chattels of the
Commonwealth of Australia where no such constitutional powers exist.
And, by the child support Agency averting any evidence to prove there is actually a debt at all but
judicial decisions are made upon the FICTIONAL debt alleged by the Child Support Agency, the
end result is that people innocent of any breach of law are still ending up having a judgment
against them because judges simply fail to have appropriate understanding of what is
constitutionally and/or further legally applicable.
Mr. HOWE: That is the origin of "gerrymandering."
Mr. HIGGINS: I perfectly admit that the foundation for this extraordinary claim is that
the minority will be swamped by the majority. Now, I wish to face that. Every minority is
swamped by every majority. Supposing you take the constituency of Port Augusta, if there
is such a one in this province, and it returns one member. At Port Augusta some people vote
one way and some another, and the minority are swamped by the majority. Why should they
not be?
Sir WILLIAM ZEAL: Hang them at once!
Mr. HIGGINS: Sir William Zeal is a good example. He represents a minority in Victoria,
and yet he has not been hanged, and I would be sorry to see him. The minority must trust to
the sense of justice on the part of the majority, and no one can say that there has been any
glaring injustice done wantonly by the majority. A familiar instance put before us in this
argument is the case of England, Scotland, Ireland, and Wales. There is no doubt that the
three smaller countries are swamped by the majority in England.
Mr. SYMON: That is unification.
Mr. HIGGINS: The hon. member has hit on the very point.
Mr. HOWE: That is what you want here.
Mr. HIGGINS: I am glad that this instance has affected my friend Mr. Howe. I would
point out that last year the Scotch County Councils Bill was brought forward. The Scotch
members were, however, swamped by the huge majority of England, and they could not
have their own way in a purely Scotch matter. The distinction is this-and I hope my
honorable friend will bear it in mind-that the Scotch people have not got control of their
own local affairs, but in a Federation local affairs will be governed and controlled by the
local Parliaments.
Mr. HOWE: That is why the Scotch are going for Home Rule.
Part 2 Page 131
Mr. HIGGINS: I think they will be able to find means to get out of the difficulty, but I
shall not add home politics to Australian politics just at present. The proposal is not to
swamp any one of the States. Each small State will still have sole control of its own
affairs.
We find however that despite this, we now find that the Commonwealth of Australia
unconstitutionally seeks to use the Companies Act to interfere with State jurisdiction as to
Industrial Relations. Yet, while it was given constitutional powers to protect Australian
workers their jobs as to make specific laws against any “coloured race” as to prevent them
as cheap labour to undermine Australian workers their job security, we find theat the
Commonwealth of Australia is precisely acting contrary to this by allowing “coloured races”
to undermine Australian workers job security and to turn , albeit unconstitutionally, the
constitutional provisions of Subsection 51(xxvi) into a Racial Discrimination Act directed
against the “general community”.
Bu this effectively have caused a “disability” against all Australians and so robbed them of their
citizenship, and so franchise.
For the Court to be able to invoke legal jurisdiction it also has to consider the fact that neither the
Proclamation or the writs were appropriately Gazetted, in that the commonwealth of Australia has
gone about to alter all kinds of matters without any proper regard as to constitutional and other
legal requirements.
A clear example is that the closure of the Commonwealth Government bookshops and the later
substitute Info shop has resulted that a person like myself are unable to obtain copies of the
Gazette on the day it is purportedly published and I have to make an order as to obtain it by post
in time to come. No judicial officer possible can accept this to be constitutionally acceptable
where a person is bound to comply with legislation he has no ability to obtain information about
until some time in the future. A person therefore may pursue to act in a lawful manner, and yet be
deemed in breach of law because the concealment by the Commonwealth of Australia of
legislation it enacted.
Act Interpretation Act 1901 (Cth)
6 Evidence of date of assent or proclamation
The date appearing on the copy of an Act printed by the Government Printer, and
purporting to be the date on which the Governor-General assented thereto, or made
known the King’s assent, shall be evidence that such date was the date on which the
Governor-General so assented or made known the King’s assent, and shall be
judicially noticed.
17 Constitutional and official definitions [see Note 2]

(j) Proclamation shall mean Proclamation by the Governor-General published in the
Gazette;
(m)Gazette means the Commonwealth of Australia Gazette, and includes the Australian
Government Gazette published during the period commencing on 1 July 1973 and
ending immediately before the commencement of subsection 5(2) of the Acts
Interpretation Amendment Act 1976;
(n) The Government Printer shall include any person printing for the Government of
the Commonwealth ;
Part 2 Page 132
17A Paper or document purporting to be printed by Government Printer
For the purposes of an Act in which reference is made to a paper or document purporting
to be printed by the Government Printer, the words “Government Printer of the
Commonwealth ”, “Government Printer of the Commonwealth of Australia”,
“Commonwealth Government Printer” or “Government Printer of Australia” appearing
on a paper or document shall be deemed to refer to the Government Printer.
The Special Gazette S421 (containing the Proclamation of the

Governor-General of the Prorogue of the Parliament and the
dissolution of the House of Representatives was not shown to be
published by the “Government Printer”, as required by law, but
“Published by the Commonwealth of Australia”, and as such in that regard
also could not be considered to be a formal publication of the
Commonwealth of Australia. The wording “Commonwealth of Australia”,
can be used on a number of publications, including road maps,
nothing to do with legal requirements of publications.
The Act Interpretation Act 1901 does provide for certain variations of
the usage of the wording “Government printers, however, no such
wording exist on the Special Gazette s421 or other Gazette’s and for
this fail to be official Government Printers publications, hence for this
the Proclamation never was a Proclamation for this either, as the
validity of any Proclamation is not the signing of the Proclamation by
the Governor-General but from the time it is actually published (and
so made available for sale to the general community) in an official
copy of the Gazette. Special Gazette S421 was to be the publication of
the Proclamation of the Prorogue of the Parliament and the
dissolution of the House of Representatives, a constitutional
requirement before writs for a general election can be issued.
As there are also newspapers with the title “Gazette” it is therefore
essential that the correct wording is show including “Government
Printer” as to make it to fall within the constitutional and further legal
requirements of being a formal notification.
The Gazette’s (of whatever name, including Special Gazettes) published by the Commonwealth
are using the wording “Published by the Commonwealth of Australia” and do not have any
reference to “Government Printer”, as referred to in the Act Interpretation Act 1901. As the
Commonwealth published a range of material, through its post office networks and Info shops
(Commonwealth Government bookshops), which are not official documents, the Applicant
therefore takes the position that unless there is a reference to “Government Printer” or any
variation of it as referred to in Section 17A of the Acts Interpretation Act 1901, a documents
published by the Commonwealth is not to be considered a publication of the Government Printer
for the purpose of Section 6 of the Acts Interpretation Act 1901.
That for this the Gazette is not an Official publication within the meanings of the Acts
Interpretation Act 1901.
That albeit the wording “Published by the Commonwealth of Australia”, is shown on the face
of each Gazette, the printing and the publishing of material are not the same. As such, as to who
publish the documents doesn’t give validity to the application of Section 17A of the Acts
Interpretation Act 1901. This, as the printing itself is the relevant issue referred to.
Part 2 Page 133
For this, the Gazette (under whatever name) published by the Commonwealth of Australia is not
one that is deemed to be an official publication within the meaning of Sections 6, 15AB (2)(a),
17A and 40.
In a recent decision of the High Court of Australia, in regard of publication, Dow
Jones & Company Inc v Gutnick [2002] HCA 56 (10 December 2002) case, it was
held that the publication occurs at the place where it becomes available. As such,
where the Commonwealth through its bookshops make available to the public maps,
not printed at all by or on behalf of the Commonwealth, then the mere fact of them
being “published” by the Commonwealth of Australia” does not make the each
particular document then to fall within Section 6 of the Acts Interpretation Act 1901.
For this, unless the wording Government Printer, or a variation as set out within
Section 17A of the Acts Interpretation Act 1901, appears on the relevant document,
the document is not one within the ambit of Section 6 of the Acts Interpretation Act
1901. For this, the Gazette’s published are not official Government publications,
failing to have any reference to “Government Printer” on the face of the document.
Again;
it was held that the publication occurs at the place where it becomes available.
With Special Gazette S421 it was not published in the State of Victoria until 10-11-2001. A
massive 2 days after the writs were already issued! In fact in Tasmania not until 22-10-2001 was
the Special Gazette first published! As such, the writs for general elections were constitutionally
floored in that regard and were ULTRA VIRES, as they failed to comply with the requirement of
Section 32 of the Constitution in that regard also.
Re Victorian sentencing laws not applied, first offence provisions.
If flag burning ought not be a criminal offence because of being a political expression then not
voting being a political expression surely should not be a criminal offence.
The Age Saturday 28-1-2006, by Clay Luca

QUOTE
FLAG BURNING
Yahoos, not martyrs, say Howard
BURNING the flag was offensive but should not be made a criminal offence, Prime
Minister John Howard says.
Mr Howard said yesterday that the burning of a flag by Aboriginal protesters in Brisbane on
Australia Day was “offensive”, but flag-burning should not be a criminal offence, as it was
an expression of political opinion.
“Much as all I despise what they did, I do not believe it should be a criminal offence, he
said. “By making it a criminal offence, we only turn yahoo behaviour into martyrdom.”
Opposition leader Kim Beazley said the Brisbane activist who torched the flag was “an
idiot”. Liberal MR Bronwyn Bishop this month told a Young Liberal convention in Sydney
that she would introduce a private member’s bill in Parliament making flag burning illegal.
END QUOTE
My expression of political opinion must certainly include a refusal to vote in anyway for
opponents or other war mongering candidates.
In the Langer case the High Court of Australia made clear, that voting is secret. Well, if the Court
in any way at all were to enforce some kind of duty to vote, then I view this is unconstitutional
and undermines the secrecy of voting by this also.
Part 2 Page 134
Basically, the Australian Electoral Commission is revealing to the world at large his claim that I
failed to vote.
Contrary to the Indonesian constitution which provides for a flag for Indonesia and so its colours
and contrary to the provisions of the constitution of Singapore which deals with rights of
Singaporean citizens being equal to Commonwealth citizens (meaning in the British
Commonwealth), the Commonwealth of Australia Constitution Act 1900 (UK) is not providing
any such constitutional provisions at all. In fact the Framers of the Constitution made clear that at
all official functions the national anthem “God save the Queen” is to be played.

Mr. BARTON.-Yes, since then, as is pointed out in a little handbook which my honorable
friend lent me. But the question for us to consider is whether a court like the Federal High
Court or the Privy Council would ever come to such a conclusion. One would think it highly
improbable. The real question that may arise under this Constitution is whether the
Commonwealth can make a law establishing or prohibiting the free exercise of any religion.
I take it that in the absence of a provision in the Constitution conferring that power
upon the Commonwealth it will be impossible for the Commonwealth to do so. For this
reason I think we need scarcely trouble ourselves to impose any restrictions. Under a
Constitution like this, the withholding of a power from the Commonwealth is a
prohibition against the exercise of such a power.
Again;
Under a Constitution like this, the withholding of a power from the Commonwealth is
a prohibition against the exercise of such a power.
As such, the withholding of constitutional powers to have its own flag and national anthem clearly
means it cannot be provided for by the Commonwealth of Australia.
The burning of what is deemed to be the “national flag” where in fact constitutionally the Union
Jack (the British flag) remains the official flag clearly indicates how absurd the Commonwealth
of Australia is being governed.
It is felt in the forms in our courts of justice, in the language of our Statutes, in the
oath that binds the sovereign to the observance of oar liberties, in the recognition of
the Sabbath, in the rubrics of our guilds and social orders, in the anthem through
which on every public occasion we invocate a blessing on our executive head, in our
domestic observances, in the offices of courtesy at our meetings and partings, and in
the time-honored motto of the nation.
Again;
in the anthem through which on every public occasion
It also means that the Courts, such as in the Dominions the State of Victoria the Courts, including
the County Court of Victoria must honour the position of the British Monarch under which
constitutional laws it operates.
The problem is also, that the Commonwealth of Australia has provided legislation as to ABN
numbers for corporations, and it appears to me that the State Courts have also fallen for the trap to
follow suit in this unconstitutional conduct and operate as businesses and by this are defaulting on
acting as a Court of Law where the principle of JUSTICE and not statistics of successful
convictions versus failure to convict is rather the bottom line as to consider the cost of operating
Courts.
THIS PART IS CONTINUED BY PART 3

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Part 2 Page 1

ADDRESS TO THE COURT, Part 2

STANDARDS OF BURDEN OF PROOF;

In criminal matters, at least as I understand it, the

Can a Magistrate by implication overrule a decision of another Magistrate, without being

Can writs be declared invalid?

Can elections be declared invalid?

Is Section 353 of the Commonwealth Electoral Act 1918 unconstitutional?

The meaning and validity of;

353 Method of disputing elections

354 The Court of Disputed Returns

Page 3 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.

Page 4 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.

If simplicity and speed of determining an outcome are to be the criteria on which we

Hon. B. A. E. Skeggs interjected.

Hansard 24-3-1897 Constitution Convention Debates

Page 5 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.

if they desire to exercise their franchise

Hansard 3-3-1898 Constitution Convention Debates

327 Interference with political liberty etc.

Page 9 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.

Kelly v Australian Electoral Commission S250/2001 (31 October 2001)

Sydney No S250 of 2001

AUSTRALIAN ELECTORAL COMMISSION

Application for expedition

AT SYDNEY ON WEDNESDAY, 31 OCTOBER 2001, AT 10.16 AM

Copyright in the High Court of Australia

MR N. KELLY appeared in person.

HIS HONOUR: Yes, Mr Kelly.

MR KELLY: Your Honour, this is an application for an expedited hearing in relation to a

HIS HONOUR: Just excuse me for a moment.

MR KELLY: Yes, I accept that.

MR KELLY: I accept that.

MR KELLY: That will be one of the grounds, Chief Justice, yes.

MR KELLY: It appears to be they may.

Page 11 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.

HIS HONOUR: Is there anything else you want to say?

MR KELLY: Not unless I can assist your Honour.

HIS HONOUR: Ms Henderson, what do you say?

MS HENDERSON: To my knowledge, your Honour, there would be no barrier to them

HIS HONOUR: Thank you.

MS HENDERSON: If your Honour pleases.

Page 12 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.

Is there anything further?

HIS HONOUR: Have you shown those to Mr Kelly?

MS HENDERSON: Yes, your Honour.

MR KELLY: Not in the light of your order, Chief Justice.

MS HENDERSON: If the Court pleases.

HIS HONOUR: Call the next matter, please.

AT 10.31 AM THE MATTER WAS CONCLUDED

Page 13 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.

Kelly v Australian Electoral Office [2001] FCA 1557 (5 November 2001)

FEDERAL COURT OF AUSTRALIA

Kelly v Australian Electoral Office HYPERLINK

EDWARD KELLY v AUSTRALIAN ELECTORAL OFFICE

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1480 OF 2001

BETWEEN: EDWARD KELLY

AUSTRALIAN ELECTORAL OFFICE

DATE OF ORDER: 5 NOVEMBER 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

The application for an expedited hearing be refused.

IN THE FEDERAL COURT OF AUSTRALIA