100210-SUBMISSION Re Native Vegetation Laws-Etc

WITHOUT PREJUDICE
Senate Finance and Public Administration Committee 10-2-2010

PO Box 6100, Parliament House
5 Canberra ACT 2600, Australia
Phone: +61 2 6277 3530
Fax: +61 2 6277 5809
Email: fpa.sen@aph.gov.au
.
10 AND TO WHOM IT MAY CONCERN
.
. 100211-submission Re Native Vegetation Laws-etc
Sir/Madam,
As to avoid any confusion as to what the inquiry is about I quote what I understand
15 are the terms of the inquiry first:
QUOTE
Native Vegetation Laws, Greenhouse Gas Abatement and Climate Change Measures
Terms of Reference
(1) The impact of native vegetation laws and legislated greenhouse gas abatement measures on
20 landholders, including:
(a) any diminution of land asset value and productivity as a result of such laws;
(b) compensation arrangements to landholders resulting from the imposition of such

laws;
(c) the appropriateness of the method of calculation of asset value in the determination of
25 compensation arrangements; and
(d) any other related matter.

(2) in conducting this inquiry, the committee must also examine the impact of the Government's
proposed Carbon pollution Reduction Scheme and the range of measures related to climate
change announced by the Leader of the Opposition (Mr Abbott) on 2 February 2010.
30 END QUOTE
.
As a CONSTITUTIONALIST my concern is that whatever legislation, if any, is pursued by
anyone being it State and or Federal then it must be done within the framework of the
Commonwealth of Australia Constitution Act 1900 (UK).
35 This submission will therefore deal with the constitutional issues that more then likely most
people are totally unaware off. I do so because there seem to be a misconception as to the
constitutional powers of States and/or the Commonwealth of Australia.
From onset I wish to indicate that the constitutional amendments I understand Mr Wilson
Tuckey MP has referred to are not needed at all because the constitution already has implied
40 legal principles for this, just that it is not generally known to be there, as set out to some extent in
this submission.
p1 10-2-20 10
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As Author of books in the INSPECTOR-RIKATI® series on certain constitutional and other
legal issues I have written extensively about these issues and more over on 19 July 2006, after a
5-year epic legal battle between the Commonwealth of Australia and myself, which canvassed
numerous constitutional issues the County Court of Victoria upheld both my cases against the
5 Commonwealth of Australia which included that the Commonwealth of Australia has no
constitutional powers to compel anyone to vote as s.245 of the CEA 1918 is ULTRA VIRES. As
such, I have proven in court to be competent in constitutional matters.
.
I now quote a statement I received recently and will comment about the constitutional issues
10 raised in that statement also. I will therefore set out the true constitutional arrangements in place
since federation and what, if any, amendment(s) to any constitution may be required,
QUOTE STATEMENT
SENATE INQUIRY KICKS OFF ON VEGETATION
15 It is not a royal commission into land theft by government requested by Peter Spencer, it
is however a move forward with the Senate Inquiry into Vegetation Laws engineered by
the Gang Greens. Unworkable is an understatement as farmers are sent broke by fictional
generated science to stop development and environmental stimulation that farmers once
implemented before political vote chasing from greens intervened Nationals Senator
20 Barnaby Joyce motivated a Senate inquiry, following NSW farmer Peter Spencer's 52-
day hunger strike over property rights and carbon sink theft by government. At the outset
the terms of data gathering does not include the most affected rural areas such as central
NSW for one. We see Wagga Wagga, Shepparton, Tamworth, Rockhampton and Perth,
will be visited in what would seem to stem the flow of information. Royal Commissions
25 are never started until the outcome is decided; Senate Inquiries seem to run under simular
rules. I will keep you posted on this inquiry and details of tendering submissions
WILSON TUCKEY - FEDERAL MEMBER FOR

O'CONNOR
30
Property Rights
"The protest in NSW by Peter Spencer, which for his sake I am pleased is now ended,
highlights the issue of property rights and more particularly the abuses perpetuated by
35 State Government agencies to acquire virtual property rights by legislative fiat" Wilson
Tuckey said today.
"At the 2005 Federal Council of the Liberal Party I successfully moved on behalf of the
WA Liberal Party the following motion and I have drawn its existence to the attention of
40 our new leadership:
That Federal Council congratulates the Federal Government on its
commitment to properly compensate the community where the action of
Governments intrudes on their property rights, and to this end calls
upon the Government to propose a Constitutional amendment by
45 Referendum of the Australian People to amend section 51 (xxxi) of the
Constitution so that the 'just terms' provisions of the clause:
a) apply to all levels of Government within the Commonwealth of

p2 10-2-20 10
Australia; and
b) encompass both acquisition and other decisions of Government that
affect property rights by directly imposing conditions and restrictions on
the property that has a negative affect on its value.
5 "The Australian Government is heavily constrained in such matters by the Section 51
(xxxi) of the Australian Constitution which says:
51. The Parliament shall, subject to this Constitution, have power to
make laws for the peace, order, and good government of the
Commonwealth with respect to:
10
(xxxi) the acquisition of property on just terms from any State or person
for any purpose in respect of which the Parliament has the power to
make laws;
"The Australian Government can only alter the Constitution by referendum of the people.
15
"State Governments can change theirs by achieving an absolute majority vote in each Chamber
of the Parliament.
"Worse, they avoid even the moral responsibility to pay compensation by utilising regulatory
20 measures unrelated to property ownership i.e.; you can retain your property but you cannot
plough certain paddocks because a certain plant species grow there or we have rezoned your
property so that it becomes unsaleable to a future purchaser" Mr Tuckey said.
"In the metro area, high value residential blocks including a rusted corrugated iron structure are
25 declared a heritage site" Mr Tuckey said.
HON WILSON TUCKEY MP

Media contact: Alana Lacy (08) 98426228 Mob: 0428-391-882
13 th January 2010
30 END QUOTE STATEMENT
.
Hansard 10-3-1891 Constitution Convention Debates
QUOTE Mr. DIBBS:
We must not, however, be unmindful of the fact that there can be no federal government
35 without, to a large extent, the sacrifice of some portion of state rights; and when the word
"provinces" is used in this debate, I ignore its existence altogether. We have been, as it
were, chaffed out of our very existence. Those of us who have spoken within the walls of
this building, or who have spoken out of doors to our constituents, and have endeavoured,
in discussing the federal question, to take a strong view of the position in regard to the
40 defence of the rights of New South Wales, have been pulled to pieces, and called
provincialists. I object, in connection with the independent state of New South Wales-a
state as independent as any in the world, even England itself, so far as the freedom of our
position is concerned-to the word "province." There may be something more dignified in
the use of the word "state." We are not going to become provinces. I do not think we
45 are going to give up the individual rights and liberties which we possess, and which
those who have gone before us have fought for, to become mere provinces under a
federal form of government. We may take the more dignified form of "states." Whilst
we have endeavoured to put before the people of New South Wales, in these resolutions, a
sort of opiate, something assuring to their minds that in joining a federal union we give up
p3 10-2-20 10
nothing of our territorial rights, words have been inserted in them which I shall do my
utmost in Committee to strike out-
except in respect to such surrenders as may be agreed upon as necessary and incidental to
the power and authority of the national federal government.
5 I do not know the meaning of these words, and no hon. gentleman who has yet spoken has
given any clear interpretation of them. It is sufficient for us, in enunciating a principle
upon which the basis of a constitution shall be prepared, to see that the territorial
rights and privileges of each colony shall be preserved to each state but when you
come to consider the condition of a surrender, and the question of the power of
10 enforcing such surrender is placed in the hands of the federal government, then your
provinces or your states will be no party to the proceeding.
END QUOTE
.
When the colonies decided to federate they didn’t desire to become mere provinces of the
15 Commonwealth of Australia as like Canada but insisted to retain their sovereign rights as States
and that the Commonwealth of Australia could only legislate in regard of those matters that were
specifically provided to the Commonwealth of Australia. Generally the issues were those relating
to external matters and like national defence, etc, however there were certain internal matters
also like postal services because the Framers of the Constitution held that regardless that some
20 colonies were making actually a profit from their services nevertheless they didn’t want to have a
system like in the USA as to have telecommunication in private hands and for this under the
federation to ensure the best kind of service held it to be part of the federation.
.
In today’s world what the constitution provides for and what is really done are starkly different
25 because we now have all kinds of telecommunication companies which within the terms of the
constitution actually are not permissible. But, it didn’t stop there as the same may apply to
matters regarding water resources, Inter-State Commission, ports, industrial relations,
environment, conservation, etc.
.
30 First we have to address certain legal principles:
.
QUOTE
Mr. ISAACS.-No. If it is ultra vires of the Constitution it would, of course, be invalid.
35 END QUOTE
.
Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the
National Australasian Convention) (Folder 33)
QUOTE Mr. GORDON.-
40 Once a law is passed anybody can say that it is being improperly administered, and it
leaves open the whole judicial power once the question of ultra vires is raised.
END QUOTE
.
As I indicated above I did make numerous challenges by way of 3 December 2002 NOTICE OF
45 CONSTITUTIONAL MATTERS and neither the Commonwealth of Australia or for that any
other Attorney-General opposed my numerous submissions regarding constitutional matters.
Hence, all and any legislation on foot as such is and remains ULTRA VIRES as unless and until
a Court pronounces against it the legislation cannot be enforced.
p4 10-2-20 10
.
As the barrister for the Commonwealth of Australia made known he had never come across a
person who knew so much about the constitution and also could present it before the courts.
.
5 In the case of Moorabool Shire Council v Francis James Colosimo the issue arose about FEE
SIMPLE and land clearing, etc. before VCAT (Victorian Civil and Administrative Tribunal) and
after more then two years of litigation involving about 20 layers the proceedings had turned into
CONTEMPT proceedings as to alleged CONTEMPT by Mr Francis James Colosimo failing to
comply with the terms of VCAT orders. In the end Mr Francis James Colosimo contact me
10 seeking my assistance as a CONSTITUTIONALIST and I decided to assist him. On 16 March
2009 I appeared before Her Honour Harbison having already filed extensive written material in
the ADDRESS TO THE COURT/TRIBUNAL canvassing FEE SIMPLE and other rights
including constitutional issues regarding Victoria, the Commonwealth of Australia Queensland,
etc. As I pointed out to Her Honour Harbison J the lawyers involved all had it wrong and I
15 produced a document proving that Mr Francis James Colosimo all along had been acknowledge
to have acted lawfully. I submitted that the CONTEMPT proceedings be permanently stayed and
this ended up to be the final orders.
.
What we had was that a man having cleared his properly lawfully had been subjected to
20 numerous hearings not because he had done any legal wrong but because lawyers were simply
pretending he had done so.
.
HANSARD 24-1-1898 Constitution Convention Debates (Official Record of the Debates of
the National Australasian Convention)
25 QUOTE
Mr. BARTON.-It would be the same as federalizing our lands.
Mr. OCONNOR.-It would, because the value of the land is inextricably mixed up
with the value of the water supply to it.
Mr. HIGGINS.-All conditions would apply to lands; all circumstances affect their value.
30 END QUOTE
.
The Constitution Convention Debates makes clear that WATER that falls on a property belongs
to the owner of that property. However, the usage of the WATER must be in such manner that it
does not interfere with the rights of others. More over, that by federation. it means that riparian
35 rights are applicable.
I understand that the Commonwealth with agreement of the States has discontinued the Inter-
State Commission, but no such powers existed for the Commonwealth and the State to do so and
hence the Commonwealth of Australia itself is clearly at fault in that regard also, as are the
States.
40 QUOTE
Commission obligatory.
END QUOTE
And
QUOTE
45 Mr. HIGGINS.-But the Inter-State Commission must be absolutely independent of
Parliament.
END QUOTE
.
.
50 Hansard 8-2-1898 Constitution Convention Debates
QUOTE Mr. BARTON.-
p5 10-2-20 10
Under a Constitution like this, the withholding of a power from the
Commonwealth is a prohibition against the exercise of such a power.
END QUOTE
.
QUOTE
Mr. HIGGINS.-The particular danger is this: That we do not want to give to
the Commonwealth powers which ought to be left to the states. The point is that
we are not going to make the Commonwealth a kind of social and religious power
10 over us.
END QUOTE
.
HANSARD 1-3-1898 Constitution Convention Debates
QUOTE Mr. GORDON.-
15 The court may say-"It is a good law, but as it technically infringes on
the Constitution we will have to wipe it out."
END QUOTE
And
20 QUOTE Mr. BARTON.-
The position with regard to this Constitution is that it has no legislative
power, except that which is actually given to it in express terms or which is
necessary or incidental to a power given.
END QUOTE
25 .
QUOTE
start page 1020] I think that we ought to be satisfied on these points, and satisfied that
if we leave the clause as it now stands there will, at any rate, be some proviso inserted
30 which will safeguard the states in the carrying out of any of their state laws over
which the states are to be supreme even under federation.
END QUOTE
.
35 QUOTE Mr. ISAACS.-
They would take the law and ask whether it complied with the Constitution.
END QUOTE
.
.
40 HANSARD 27-1-1898 Constitution Convention Debates
QUOTE
Mr. BARTON.-Our civil rights are not in the hands of any Government, but the
rights of the Crown in prosecuting criminals are.
END QUOTE
45 .
QUOTE Sir JOHN DOWNER.-
The people of the various states make their own contracts amongst themselves, and if in
course of their contractual relations disagreements arise, and the state chooses to
50 legislate in respect of the subject-matter of them, it can do so.
p6 10-2-20 10
END QUOTE
.
QUOTE
5 Mr. SYMON.-Why should you interfere with the laws in the different colonies
affecting the relations of masters and servants, which are purely a matter of domestic
legislation? Why should you hand over that purely state function to the federal
authority?
END QUOTE
QUOTE
Mr. SYMON.-What relation has this to customs duties? The industrial life of the state is
considered by all of us (subject to this exception, it may be) a thing of purely domestic
15 concern. We do not want to interfere with the domestic life, or with industrial life, except
in the last resort. If you are going to introduce such a thing as this it must be the Federal
Ministry which will have to decide, subject to the Parliament, and you will introduce the
greatest complication and intensity of feeling that was ever seen.
Mr. BARTON.-We do not propose to hand over contracts and civil rights to the
20 Federation, and they are intimately allied to this question.
END QUOTE
.
QUOTE
25 Mr. SOLOMON.- We shall not only look to the Federal Judiciary for the protection
of our interests, but also for the just interpretation of the Constitution:
END QUOTE
.
30 QUOTE
Mr. HIGGINS.-I did not say that it took place under this clause, and the honorable
member is quite right in saying that it took place under the next clause; but I am trying to
point out that laws would be valid if they had one motive, while they would be invalid
if they had another motive.
35 END QUOTE
.
QUOTE Mr. OCONNOR.-
We must remember that in any legislation of the Commonwealth we are dealing with the
40 Constitution. Our own Parliaments do as they think fit almost within any limits. In this
case the Constitution will be above Parliament, and Parliament will have to conform
to it.
END QUOTE
.
QUOTE
Mr. GORDON.- The court may say-"It is a good law, but as it technically infringes
on the Constitution we will have to wipe it out."
END QUOTE
p7 10-2-20 10
And
QUOTE
Mr. BARTON.- The position with regard to this Constitution is that it has no
5 legislative power, except that which is actually given to it in express terms or which is
necessary or incidental to a power given.
END QUOTE
.
10 QUOTE
Mr. HIGGINS.-No, because the Constitution is not passed by the Parliament.
END QUOTE
.
The Framers of the Constitution extensively canvassed the issue of environment, irrigation,
15 water, riparian rights, etc, and held that it was a State issue. As they made clear ultimately a
water issue could be taken to the High Court of Australia as a judicial matter.
.
QUOTE
20 Dr. COCKBURN: We have to consider this matter simply as an ordinary landlord.
The federal authority will be the landlord of the site of the federal capital, and it is for
us to consider what is the best possible use to which the landlord can put the land.
This does not necessarily touch the question of land nationalisation or of methods of
land tenure. Therefore I feel compelled to vote with Mr. Wise, and in doing that I do not
25 admit that I agree with the hon. member in all his views. I vote for the amendment because
it establishes the general methods of a sound principle, which is applicable in the present
instance, and will go a long way towards settling the question I have just alluded to.
Mr. HOWE: This land question is really the basis of all public good. So fax as the land
laws of each individual State are concerned, I think they should be left entirely to the
30 Parliament of that State.
END QUOTE
.
Again:
35 QUOTE
Mr. HOWE: This land question is really the basis of all public good. So fax as the land
laws of each individual State are concerned, I think they should be left entirely to the
Parliament of that State.
END QUOTE
40 .
QUOTE
Mr. BARTON.-We do not propose to hand over contracts and civil rights to the
Federation, and they are intimately allied to this question.
45 END QUOTE
.
The rights of any landholder is governed by relevant albeit valid State laws and not by
commonwealth law, other then that the Commonwealth of Australia on behalf of the States can
administer within s.122 of the Constitution territories and as such is deemed the “sovereign” of
50 the Territories as States are in regard of State Territories.
.
p8 10-2-20 10
Hence, the Commonwealth of Australia can legislate for Territories in regard of religious matters
as s116 doesn’t prevent the Commonwealth of Australia to exercise it’s like state legislative
rights. The Commonwealth of Australia is prohibited to legislate as to religion for the “whole” of
the Commonwealth.
5 .
Again, this was an issue I canvassed successfully before the courts on 19 July 2006 also.
.
QUOTE
10 Mr. BARTON.- We can have every faith in the constitution of that tribunal. It is appointed
as the arbiter of the Constitution. . It is appointed not to be above the Constitution, for
no citizen is above it, but under it; but it is appointed for the purpose of saying that
those who are the instruments of the Constitution-the Government and the
Parliament of the day-shall not become the masters of those whom, as to the
15 Constitution, they are bound to serve. What I mean is this: That if you, after making
a Constitution of this kind, enable any Government or any Parliament to twist or
infringe its provisions, then by slow degrees you may have that Constitution-if not
altered in terms-so whittled away in operation that the guarantees of freedom which
it gives your people will not be maintained; and so, in the highest sense, the court you
20 are creating here, which is to be the final interpreter of that Constitution, will be such a
tribunal as will preserve the popular liberty in all these regards, and will prevent,
under any pretext of constitutional action, the Commonwealth from dominating the
states, or the states from usurping the sphere of the Commonwealth.
END QUOTE
25 .
QUOTE
Dr. COCKBURN: All our experience hitherto has been under the condition of
parliamentary sovereignty. Parliament has been the supreme body. But when we
30 embark on federation we throw parliamentary sovereignty overboard. Parliament is
no longer supreme. Our parliaments at present are not only legislative, but
constituent bodies. They have not only the power of legislation, but the power of
amending their constitutions. That must disappear at once on the abolition of
parliamentary sovereignty. No parliament under a federation can be a constituent
35 body; it will cease to have the power of changing its constitution at its own will. Again,
instead of parliament being supreme, the parliaments of a federation are coordinate
bodies-the main power is split up, instead of being vested in one body. More than all
that, there is this difference: When parliamentary sovereignty is dispensed with,
instead of there being a high court of parliament, you bring into existence a powerful
40 judiciary which towers above all powers, legislative and executive, and which is the
sole arbiter and interpreter of the constitution.
QUOTE
.
45 QUOTE
The Hon. A. DEAKIN: I say the great bulk of them are of that character, and am open to
refutation if I am wrong, I should say that the whole of the thirty-seven subjects, but,
indisputably, the great bulk of them, are subjects on which no question of state rights and
state interests could arise except by the merest accident. It is, as the right hon. gentleman
50 admitted, a grave defect in our constitution if we permit these questions to be left for all
time to be determined in a purely states house, or by a state referendum, when those
p9 10-2-20 10
questions are not state questions-when they ought to be decided, not on state lines, but on
national lines, and by a national referendum.
END QUOTE
.
QUOTE
Mr. BARTON: I do not think it is a good thing under any circumstances that a
judge under a Federal Constitution, at any rate, should have anything to hope for
from Parliament or Government.
10 Mr. KINGSTON: Hear, hear.

Mr. BARTON: Where you have a sovereign Parliament, and the judge is merely the
interpreter of the laws as they arise, and not the guardian of a Constitution in the
same sense as a federal judge is, the same circumstances remain in part; but where you
will have a tribunal constantly charged with the maintenance of the Constitution against the
15 inroads which may be attempted to be made upon it by Parliament, then it is essential that
no judge shall have any temptation to act upon an unexpected weakness-for we do not
know exactly what they are when appointed-which may result, whether consciously or
not, in biasing his decisions in favor of movements made by the Parliament which
might be dangerous to the Constitution itself.
20 END QUOTE
.
QUOTE Mr. BARTON.-
Providing, as this Constitution does, for a free people to elect a free Parliament-giving
25 that people through their Parliament the power of the purse-laying at their mercy
from day to day the existence of any Ministry which dares by corruption, or drifts
through ignorance into, the commission of any act which is unfavorable to the people
having this security, it must in its very essence be a free Constitution. Whatever any
one may say to the contrary that is secured in the very way in which the freedom of
30 the British Constitution is secured. It is secured by vesting in the people, through their
representatives, the power of the purse, and I venture [start page 2477] to say there is
no other way of securing absolute freedom to a people than that, unless you make a
different kind of Executive than that which we contemplate, and then overload your
Constitution with legislative provisions to protect the citizen from interference. Under
35 this Constitution he is saved from every kind of interference. Under this Constitution
he has his voice not only in the, daily government of the country, but in the daily
determination of the question of whom is the Government to consist. There is the
guarantee of freedom in this Constitution. There is the guarantee which none of us
have sought to remove, but every one has sought to strengthen. How we or our work
40 can be accused of not providing for the popular liberty is something which I hope the
critics will now venture to explain, and I think I have made their work difficult for
them. Having provided in that way for a free Constitution, we have provided for an
Executive which is charged with the duty of maintaining the provisions of that
Constitution; and, therefore, it can only act as the agents of the people. We have
45 provided for a Judiciary, which will determine questions arising under this
Constitution, and with all other questions which should be dealt with by a Federal
Judiciary and it will also be a High Court of Appeal for all courts in the states that
choose to resort to it. In doing these things, have we not provided, first, that our
Constitution shall be free: next, that its government shall be by the will of the people,
p10 10-2-2010
which is the just result of their freedom: thirdly, that the Constitution shall not, nor shall
any of its provisions, be twisted or perverted, inasmuch as a court appointed by their
own Executive, but acting independently, is to decide what is a perversion of its
provisions? We can have every faith in the constitution of that tribunal. It is appointed as
5 the arbiter of the Constitution. It is appointed not to be above the Constitution, for no
citizen is above it, but under it; but it is appointed for the purpose of saying that those
who are the instruments of the Constitution-the Government and the Parliament of
the day-shall not become the masters of those whom, as to the Constitution, they are
bound to serve. What I mean is this: That if you, after making a Constitution of this
10 kind, enable any Government or any Parliament to twist or infringe its provisions,
then by slow degrees you may have that Constitution-if not altered in terms-so
whittled away in operation that the guarantees of freedom which it gives your people
will not be maintained; and so, in the highest sense, the court you are creating here,
which is to be the final interpreter of that Constitution, will be such a tribunal as will
15 preserve the popular liberty in all these regards, and will prevent, under any pretext
of constitutional action, the Commonwealth from dominating the states, or the states
from usurping the sphere of the Commonwealth. Having provided for all these things,
I think this Convention has done well.
END QUOTE
20 .
It should therefore be very clear that any State constitution can only be amended by the State
seeking the approval of State electors for an amendment of its constitution. As I also successfully
canvassed before the Courts the 1975 Victorian Constitution Act and the NSW 1902 Constitution
Act never were approved by any State referendum and neither numerous others State
25 amendements of its constitutions such as the 1921 abolition or better to state the purported
Abolition of the Queensland Upper House and as such constitutionally the Queensland Upper
House is and remains to be used for passing any Bill before it can be lawfully enacted! Where a
Bill was not so passed since 1921 then the bill technically never became valid law.
.
30 As the States were created out of the former colonies within section 106 of the (federal)
constitution and this is “subject to this constitution” then the States are bound by the terms of
the constitution and s.40 states “more numerous House of the parliament of a State” and as
such requires that a State Parliament has at least two Houses of Parliament.
.
35 The records of the Hansard debates are relevant as the High court of Australia itself has already
acknowledged and so did the Framers of the constitution:
.
QUOTE Mr. DEAKIN (Victoria).-
40 The record of these debates may fairly be expected to be widely read, and the
observations to which I allude might otherwise lead to a certain amount of
misconception.
END QUOTE
.
45 The judicial powers of the High court of Australia are limited to hand down decisions within the
framework of the constitution and anything beyond it is and remains ULTRA VIRES.
.
Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann;
Spi [1999] HCA 27 (17 June 1999)
50 QUOTE
p11 10-2-2010
For constitutional purposes, they are a nullity. No doctrine of res judicata or issue
estoppel can prevail against the Constitution. Mr Gould is entitled to disregard the orders
made in Gould v Brown. No doubt, as Latham CJ said of invalid legislation, "he will feel
safer if he has a decision of a court in his favour". That is because those relying on the
5 earlier decision may seek to enforce it against Mr Gould.
END QUOTE
.
Uniform Tax \case, 1942 (65CLR 373 at 408) 23-7-1942
QUOTE
10 Common expressions such as: 'The Courts have declared a statute invalid'," says Chief
Justice Latham, "sometimes lead to misunderstanding. A pretended law made in excess of
power is not and never has been a law at all. Anybody in the country is entitled to
disregard it. Naturally, he will feel safer if he has a decision of a court in his favor, but
such a decision is not an element, which produces invalidity in any law. The law is not
15 valid until a court pronounces against it - and thereafter invalid. If it is beyond power it is
invalid ab initio.
END QUOTE
.
What therefore is very essential is to understand and comprehend where is the legislative
20 power of any parliament to legislate regarding water, irrigation, conservation environment,
etc.
.
We have first to then consider further what are CIVIL, POLITICAL and other rights.
.
QUOTE
Mr. SYMON ( South Australia ).-
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
30 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
35 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.
END QUOTE
40 .
Hansard2-3-1898 Constitution Convention Debates;
QUOTE Dr. QUICK.-
The Constitution empowers the Federal Parliament to deal with certain external affairs,
among which would probably be the right to negotiate for commercial treaties with foreign
45 countries, in the same way as Canada has negotiated for such treaties. These treaties could
only confer rights and privileges upon the citizens of the Commonwealth, because the
Federal Government, in the exercise of its power, [start page 1753] could only act for
and on behalf of its citizens.
END QUOTE
50 .
p12 10-2-2010
QUOTE Mr. THYNNE:
I shall quote from Mr. Dicey's recent work, which is very clear in its language. He says:
One of the characteristics of a federation is that the law of the constitution must be
either legally immutable or else capable of being changed only by some authority
5 above and beyond the ordinary legislative bodies, whether federal or state
legislatures, existing under the constitution.
END QUOTE
.
What this makes very clear is that the Commonwealth of Australia is not a country but a
10 POLITICAL UNION as like the European Union.
It also must be clear that any treaty the Commonwealth of Australia engage into doesn’t give it
any legislative powers to then to legislate as it pleases because treaties cannot themselves be
enforced.
.
15 Therefore unless the Commonwealth of Australia already had existing legislative powers within
which it can enter into a treaty any treaty otherwise entered into cannot be enforced.
.
This therefore much applies to environment treaties that entered into within “external affairs”.
.
20 The High court of Australia in it’s Tasmanian Dam case (Franklin Dam) in error made a ruling
defying the constitutional meaning and application and by taking out of context what the Framers
of the Constitution actually had stated. As it did in Sue v Hill!
.
25 QUOTE Mr. J. FORREST:
We propose to form a commonwealth of Australia, and are we to prohibit people of
our own race, born in other portions of the British dominions, from becoming
senators until they have been resident in the commonwealth for a certain period? No
such prohibition is placed upon Australians residing in the old country. Any
30 Australian, resident in England, can at once, if the electors desire, become a member
of the House of Commons, and I see no reason why a distinguished Englishman
coming to these colonies should not at once be eligible for the position of senator if the
legislature of one of the colonies desired his appointment.
END QUOTE
35 .
HANSARD 2-3-1898 Constitutional Convention
QUOTE Mr. OCONNOR (New South Wales).-
There is no territorial entity coincident with the Commonwealth. Every part of the
Commonwealth territory is part of the state, and it is only by virtue of his citizenship
40 of a state that any person within the bounds of the Commonwealth will have any
political rights under the Constitution. Of course, when I speak of a state, I include
also any territory occupying the position of quasi-state, which, of course, stands in
exactly the same position.
END QUOTE
45 .
QUOTE
p13 10-2-2010
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.
END QUOTE
.
QUOTE
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
10 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
15 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.
END QUOTE
.
20 Hansard 2-3-1898 Constitution Convention Debates; (Official Record of the Debates of the
National Australasian Convention) (See Folder 33 of the CD)
QUOTE Mr. SYMON.-
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
25 small risk-of having that taken away or diminished by the Federal Parliament!
END QUOTE
.
National Australasian Convention); (See Folder 33 of the CD)
30 QUOTE 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 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
35 it.
END QUOTE
.
National Australasian Convention) (See Folder 33 of the CD)
40 QUOTE
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
45 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.
END QUOTE
.
50 National Australasian Convention)
QUOTE Mr. SYMON.-
p14 10-2-2010
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
5 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.
END QUOTE
.
QUOTE
Sir SAMUEL GRIFFITH: If the hon. gentleman will look at the bill he will see that
the only laws which can apply are laws for the peace, order, and good government of
the commonwealth.
15 END QUOTE
.
Well we all are aware that the High Court of Australia in Sue v Hill made its decision albeit as a
CONSTITUTIONALIST I challenged the matter on 19 July 2006 and again defeated the
Commonwealth of Australia and it didn’t whatsoever challenge my submissions because it was
20 well aware that unlike in Sue v Hill there was no competent CONSTITUTIONALIST
presenting the real constitutional meaning and application.
.
This is relevant because for any of the Parliament to be able to pass any Bill as to environment
matters and have it enacted there must be existing CONSTITUTIONAL BASED
25 LEGISLATIVE POWERS.
.
Any legislation beyond constitutional powers is and remains to be ULTRA VIRES and without
legal force. Again:
.
QUOTE
Mr. ISAACS.-No. If it is ultra vires of the Constitution it would, of course, be invalid.
END QUOTE
.
35 The issue therefore is that unless the Commonwealth of Australia has already legislative powers
in the constitution granted at federation or by amendment of the constitution (not purportedly by
the High Court of Australia, as it has no such judicial powers) by successful s.128 of the
constitution referendum there is no legislative powers.
.
40 Hansard 3-3-1897 Constitution Convention Debates (Official Record of the Debates of the
National Australasian Convention)
QUOTE
Mr. ISAACS (Victoria).-What I am going to say may be a little out of order, but I would
like to draw the Drafting Committee's attention to the fact that in clause 52, sub-section (2),
45 there has been [start page 1856] a considerable change. Two matters in that sub-section
seem to me to deserve attention. First, it is provided that all taxation shall be uniform
throughout the Commonwealth. That means direct as well as indirect taxation, and
the object I apprehend is that there shall be no discrimination between the states; that
an income tax or land tax shall not be made higher in one state than in another. I
p15 10-2-2010
should like the Drafting Committee to consider whether saying the tax shall be uniform
would not prevent a graduated tax of any kind? A tax is said to be uniform that falls with
the same weight on the same class of property, wherever it is found. It affects all kinds of
direct taxation. I am extremely afraid, that if we are not very careful, we shall get into a
5 difficulty. It might not touch the question of exemption; but any direct tax sought to
be imposed might be held to be unconstitutional, or, in other words, illegal, if it were
not absolutely uniform.
END QUOTE
Again;
QUOTE Mr. ISAACS (Victoria).-
It might not touch the question of exemption; but any direct tax sought to be imposed
might be held to be unconstitutional, or, in other words, illegal, if it were not
absolutely uniform.
15 END QUOTE
.
QUOTE
Sir GEORGE TURNER: No. In imposing uniform duties of Customs it should not be
20 necessary for the Federal Parliament to make them commence at a certain amount at once.
We have pretty heavy duties in Victoria, and if the uniform tariff largely reduces them at
once it may do serious injury to the colony. The Federal Parliament will have power to
fix the uniform tariff, and if any reductions made are on a sliding scale great injury
will be avoided.
25 END QUOTE
.
It must be clear from this also that any taxation imposed cannot be discriminatory applied.
.
30 QUOTE Mr. THYNNE:
The constitution of this federation will not be charged with the duty of resisting
privileged classes, for the whole power will be vested in the people themselves. They
are the complete legislative power of the whole of these colonies, and they shall be so.
From [start page 106] them will rise, first of all, the federal constitution which we are
35 proposing to establish, and in the next place will come the legislative powers of the several
colonies. The people will be the authority above and beyond the separate legislatures,
and the royal prerogative exercised, in their interest and for their benefit, by the advice of
their ministers will be practically vested in them. They will exercise the sovereignty of the
states, they will be charged with the full power and dignity of the state, and it is from them
40 that we must seek the giving to each of those bodies that will be in existence concurrently
the necessary powers for their proper management and existence. Each assembly, each
legislature, whether state or federal existing under this constitution, will be as Dicey
again says-a merely subordinate law-making body whose laws will be valid, whilst
within the authority conferred upon it by the constitution, but invalid and
45 unconstitutional if they go beyond the limits of such authority.
END QUOTE
.
It is clear from numerous publications that the Federal government seeks to give privileges to
certain groups to be excluded or otherwise gain permits not provided to others in its ETS scheme
50 and this would be unconstitutional.
.
p16 10-2-2010
QUOTE
Mr. WISE.-You cannot impose exceptional treatment upon the citizens of another
state; that applies to everything.
5 END QUOTE
.
This applies as much to companies as to ordinary persons!
.
We then have also to look as the issue if taxation would be constitutionally valid!
10 .
QUOTE
Mr. GORDON.- The court may say-"It is a good law, but as it technically infringes
on the Constitution we will have to wipe it out."
15 END QUOTE
.
QUOTE
Mr. HIGGINS.-I did not say that it took place under this clause, and the honorable
20 member is quite right in saying that it took place under the next clause; but I am trying to
point out that laws would be valid if they had one motive, while they would be invalid
if they had another motive.
END QUOTE
.
QUOTE
Mr. SOLOMON.- We shall not only look to the Federal Judiciary for the protection
of our interests, but also for the just interpretation of the Constitution:
END QUOTE
30 .
Clearly where the Commonwealth pursues to misuse its taxation legislative powers to interfere
unduly with State legislative powers such as in regard of environment then the legislation,
regardless it might be a taxation law would be unconstitutional because of the purpose it was
being used for.
35 .
QUOTE
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
40 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
45 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
50 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
p17 10-2-2010
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
5 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
10 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
15 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
20 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
25 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.
END QUOTE
30 .
Therefore political partisanship or not if the Constitution does not provide legislative powers for
the Commonwealth of Australia in regard of environmental issues then it cannot obtain this my
entering in a treaty.
.
QUOTE
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
40 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
45 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.
END QUOTE
50 .
p18 10-2-2010
While we have already witnessed that the Commonwealth of Australia seeks to make inroads
into education by publishing matters on a website in my view this conduct should be condemned
as being unconstitutional as it interferes with State powers.
.
QUOTE
Sir SAMUEL GRIFFITH: If the hon. gentleman will look at the bill he will see that
the only laws which can apply are laws for the peace, order, and good government of
the commonwealth.
10 END QUOTE
.
QUOTE
Mr. ISAACS.-I am not prepared to answer that question, but when we look at clause 52
15 we find these governing words on the very forefront of that clause-
That Parliament shall, subject to the provisions of this Constitution, have full power
and authority to make laws for the peace, order, and good government of the
Commonwealth.
We see there that the Commonwealth is named as distinguished from the states.
20 END QUOTE
.
QUOTE
Dr. COCKBURN: I have raised this point at every opportunity. I do not wish to take up
25 the time of the Convention, but I certainly shall move-an amendment, because the clause is
not in accordance with the general provisions of Federation. The States composing the
Federation should have full power to deal with local affairs. Essentially, all external
relations are taken out of their jurisdiction. I do think they ought to have the power
themselves to say what the Constitution under which they live shall be.
30 END QUOTE
.
QUOTE
Mr. SYMON.-Of course, the absolute control by a state of everything within its own
35 borders is retained by this Constitution, except in respect to such matters as are
expressly handed over to the Commonwealth.
END QUOTE
.
40 QUOTE
Mr. BARTON.-this Constitution is to be worked under a system of responsible
government
END QUOTE
And
QUOTE
Mr. BARTON.- We have simply said that the guarantee of the liberalism of this
Constitution is responsible government, and that we decline to impair or to infect in any
way that guarantee.
p19 10-2-2010
END QUOTE
And
QUOTE
5 Mr. BARTON.- Of course it will be argued that this Constitution will have been
made by the Parliament of the United Kingdom. That will be true in one sense, but
not true in effect, because the provisions of this Constitution, the principles which it
embodies, and the details of enactment by which those principles are enforced, will all
have been the work of Australians.
10 END QUOTE
And
QUOTE
Mr. BARTON.- Having provided in that way for a free Constitution, we have
15 provided for an Executive which is charged with the duty of maintaining the
provisions of that Constitution; and, therefore, it can only act as the agents of the
people.
END QUOTE
.
QUOTE
Mr. DEAKIN.- In this Constitution, although much is written much remains
unwritten,
END QUOTE
25 And
QUOTE 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
30 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.
END QUOTE
And
QUOTE
Mr. SYMON (South Australia).- 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
40 conceive of nothing of greater magnitude in the whole history of the peoples of the
world than this question upon which we are about to invite the peoples of Australia to
vote. The Great Charter was wrung by the barons of England from a reluctant king. This
new charter is to be given by the people of Australia to themselves.
END QUOTE
45 And
QUOTE
Mr. BARTON.- We can have every faith in the constitution of that tribunal. It is appointed
as the arbiter of the Constitution. . It is appointed not to be above the Constitution, for
50 no citizen is above it, but under it; but it is appointed for the purpose of saying that
those who are the instruments of the Constitution-the Government and the
p20 10-2-2010
Parliament of the day-shall not become the masters of those whom, as to the
Constitution, they are bound to serve. What I mean is this: That if you, after making
a Constitution of this kind, enable any Government or any Parliament to twist or
infringe its provisions, then by slow degrees you may have that Constitution-if not
5 altered in terms-so whittled away in operation that the guarantees of freedom which
it gives your people will not be maintained; and so, in the highest sense, the court you
are creating here, which is to be the final interpreter of that Constitution, will be such a
tribunal as will preserve the popular liberty in all these regards, and will prevent,
under any pretext of constitutional action, the Commonwealth from dominating the
10 states, or the states from usurping the sphere of the Commonwealth.
END QUOTE
.
Therefore there should be absolutely no doubt that the Commonwealth of Australia is bound to
act as “agents” for the electors and cannot then act in defiance of the interest of the electors.
15 .
We now have to look at the constitution itself:
QUOTE
Part V—Powers of the Parliament
51 Legislative powers of the Parliament [see Notes 10 and 11]
20 The Parliament shall, subject to this Constitution, have power to
END QUOTE
.
25 QUOTE
(xxxi) the acquisition of property on just terms from any State or
person for any purpose in respect of which the Parliament has
power to make laws;
END QUOTE
30 .
The difference between Section 51 and 52 legislative powers is that from federation Section 52
legislative powers were exclusively for the Commonwealth of Australia whereas Section 51
legislative powers were also State legislative powers until the Commonwealth of Australia
commenced to legislate upon it.
35 .
QUOTE
The Hon. R.E. O'CONNOR (New South Wales)[3.18]: The moment the
commonwealth exercises the power, the states must retire from that field of
40 legislation.
END QUOTE
.
QUOTE Mr. REID:
45 We must make it clear that the moment the Federal Parliament legislates on one of
those points enumerated in clause 52, that instant the whole State law on the subject is
dead. There cannot be two laws, one Federal and one State, on the same subject. But
that I merely mention as almost a verbal criticism, because there is no doubt,
whatever that the intention of the framers was not to propose any complication of the
50 kind.
END QUOTE
p21 10-2-2010
.
Therefore, all and any legislative powers that are listed within .51 are no longer applicable for the
States. I should however clarify that the issue of taxation relates to the subject of taxation and not
the entire field of taxation and hence if the Commonwealth has not commenced to legislate upon
5 a field of taxation, say land taxation, then the states can still continue this kind of taxation.
However, any ordinary subject listed in s.51 would be at an end for the states the moment the
Commonwealth commences to legislate in regard of this.
.
QUOTE
10 (xxxi) the acquisition of property on just terms from any State or
person for any purpose in respect of which the Parliament has
power to make laws;
END QUOTE
This part appears to relate to the Commonwealth only but in fact being within s.51 was all along
15 a State legislative powers, as after all legislation had to be enacted to allow the land to be
transferred from a State to the commonwealth to be so enacted.
.
Constitutionally, the Commonwealth is a mere landlord of any land it has under its control , even
for Commonwealth purposes, where the State has not conceded sovereign rights to the
20 Commonwealth, albeit the Commonwealth can use the property for Commonwealth purposes but
not otherwise. Hence when John Howard wanted to sell Point Nepean to private developers for
$500 million I informed him that he would by this be bound to create his own Territorian
government for it because he could only extinguish Commonwealth sovereignty by handing it
back to the State of Victoria. Hence the sale was cancelled. The same applies to former owned
25 Telstra properties while it was in ownership of the commonwealth, they still are Commonwealth
territories as they were not handed back to the States, as they were sold to private interest.
Neither can any State government raise taxes on those former Telstra properties, etc!
.
With s.51 (xxxi) the states had to acquire the properties of land holders and obviously could not
30 do so without “just terms” in the manner the Commonwealth would be obligated to do when it
commenced to legislate within this subject. The meaning of the subsection cannot be changed
merely to who uses it and therefore the expression “just terms” was as much applicable to the
States as it is to the Commonwealth.
Not to do so would allow the State to acquire property so to say at peanuts and then to sell it to
35 the Commonwealth of Australia at huge profits. This obviously never was intended by the
commonwealth of Australia as it specifically also refers to “person” and so must be deemed to
apply to any person.
.
The Framers of the Constitution didn’t want WATER to be a Commonwealth power other then
40 within section 100 where it was to affect “trade and commerce” for navigational purposes. Hence
there is no constitutional powers for the Commonwealth to acquire land for water conservation
purposes as it specifically was denied such legislative powers.
.
We then have to look at the constitutional powers of the Commonwealth to legislate as to
45 environment, and again it has no constitutional powers in doing so and again the ETS is not a tax
system proposed for taxation purposes but for seeking to control environment not within its
legislative powers.
For all purposes and intend we have therefore that conservation, irrigation, environmental and
water issues are and remain to be State legislative powers and the Commonwealth as a quasi state
50 within s.122 as the sovereign for the Territories obviously can legislate for the Territories but
NOT for the whole of the Commonwealth.
p22 10-2-2010
.
The issue therefore is if the States have the legislative powers then the Commonwealth of
Australia clearly doesn’t have such legislative powers and for this cannot interfere or otherwise
dictate environmental issues. In my view the Commonwealth of Australia must but out of the
5 issue as it has no legislative powers.
As for the States, in view of the provisions of s.51 (xxxi) where it legislate as to environmental
issues and this causes harm upon a landholder then the legal principle embedded in s.51(xxxi)
applies that “just terms” must be applied. Hence the constitution itself applies for this.
The statement “A man has his castle and not even the king can enter” is very much as statement
10 that applies and as such a State government cannot legislate as to the FEE SIMPLE rights of a
landholder and then implement it as ultimately the Courts then have to adjudicate as to the
appropriate remedy. Meaning that if a State government legislate as to vegetation and a
landholder disputes this then the State has to take the matter to Court and seek a court to
adjudicate upon if the relevant State law should be enforced and so also what compensation
15 should be provided to the land holder. After all the State doesn’t own the land but merely provide
administrative duties to keep track as to the land ownership and transfer of FEE SIMPLE
properties.
The same would be with the Commonwealth of Australia if it were to legislate regarding
environment, that is if it had legislative powers in the first place, that it cannot enforce its own
20 laws as the judiciary is created for that very purpose and the Courts can nullify the legislation.
.
QUOTE
Mr. WISE (New South Wales).-The only class of cases contemplated by this section
25 are offences committed against the criminal law of the Federal Parliament, [start page
354] and the only cases to which Mr. Higgins' amendment would apply are those in
which the criminal law of the state was in conflict with the criminal law of the
Commonwealth; in any other cases there would be no necessity to change the venue,
and select a jury of citizens of another state. Now, I do not know any power, whether in
30 modern or in ancient times, which has given more just offence to the community than the
power possessed by an Executive, always under Act of Parliament, to change the venue for
the trial of criminal offences, and I do not at all view with the same apprehension that
possesses the mind of the honorable member a state of affairs in which a jury of one state
would refuse to convict a person indicted at the instance-of the Federal Executive. It might
35 be that a law passed by the Federal Parliament was so counter to the popular feeling of a
particular state, and so calculated to injure the interests of that state, that it would become
the duty of every citizen to exercise his practical power of nullification of that law by
refusing to convict persons of offences against it. That is a means by which the public
obtains a very striking opportunity of manifesting its condemnation of a law, and a
40 method which has never been known to fail, if the law itself was originally unjust. I
think it is a measure of protection to the states and to the citizens of the states which should
be preserved, and that the Federal Government should not have the power to interfere and
prevent the citizens of a state adjudicating on the guilt or innocence of one of their fellow
citizens conferred upon it by this Constitution.
45 END QUOTE
.
While people generally claim that the (federal) constitution does not contain any CIVIL
LIBERTIES provisions this is in fact completely misconceived.
.
50 The following will also make clear that the Framers of the Constitution intended to have CIVIL
RIGHTS and LIBERTIES principles embedded in the Constitution;
p23 10-2-2010
HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates of
the National Australasian Convention)
QUOTE Mr. CLARK.-
for the protection of certain fundamental rights and liberties which every individual
5 citizen is entitled to claim that the federal government shall take under its protection and
secure to him.
END QUOTE
.
HANSARD18-2-1898 Constitution Convention Debates (Official Record of the Debates of
10 the National Australasian Convention)
QUOTE Mr. ISAACS.-
The right of a citizen of this great country, protected by the implied guarantees of its
Constitution,
END QUOTE
15 .
QUOTE
Mr. SYMON (South Australia).- 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
20 to commit this new Magna Charta for their acceptance and confirmation, and I can
conceive of nothing of greater magnitude in the whole history of the peoples of the
world 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.
25 END QUOTE
.
As such, the constitution has embedded within it the LIBERTIES that the Framers of the
constitution at the time held to be applicable and what they did was by not placing it in the
written context of the constitution itself they prevents it to be misused and abused by the
30 Commonwealth of Australia.
.
QUOTE Mr. HIGGINS:
I think it is advisable that private people should not be put to the expense of having
35 important questions of constitutional law decided out of their own pockets.
END QUOTE
.
Regretfully the Commonwealth of Australia has no proper system in place where legislation or
better to state proposed legislation is vetted as to it being constitutionally viable. Even the
40 purported REPUBLIC referendum was a constitutional nonsense and so a sheer waste of
taxpayers monies because the constitution doesn’t allow for this.
.
QUOTE
45 Mr. CARRUTHERS:
This is a Constitution which the unlettered people of the community ought to be able
to understand.
END QUOTE
.
50 Fancy to tell a person that for over one hundreds year the constitution didn’t have anything about
environment but somehow now the High Court of Australia found it in the constitution! Clearly,
p24 10-2-2010
the just interpretation of the constitution is what is required and not the erosion of the
constitution to serve some kind of confederation purpose.
.
QUOTE
5 That Federal Council congratulates the Federal Government on its
commitment to properly compensate the community where the action of
Governments intrudes on their property rights, and to this end calls
upon the Government to propose a Constitutional amendment by
Referendum of the Australian People to amend section 51 (xxxi) of the
10 Constitution so that the 'just terms' provisions of the clause:
a) apply to all levels of Government within the Commonwealth of

Australia; and
15 affect property rights by directly imposing conditions and restrictions on
END QUOTE
.
20 As to
QUOTE
a) apply to all levels of Government within the Commonwealth of Australia; and
END QUOTE
.
25 As set out above it already was applicable since federation but because the High Court of
Australia blocked (albeit unconstitutionally) until about 19092 the usage of the Hansard records
of the Constitution Convention Debates it was simply never understood to be so and this is why
as a CONSTITUTIONALIST and GUARDIAN of the OFFICE-OF-THE-GUARDIAN
(Don’t forget the hyphens!) am proved to defeat lawyers for the Commonwealth of Australia on
30 numerous constitutional issues because a lawyer simply is not a constitutionalist as it is a total
different concept!
.
QUOTE
35 affect property rights by directly imposing conditions and restrictions on
END QUOTE
.
Again, this is already embedded in the constitution, as set out above, and doesn’t require any
40 amendment of the constitution.
.
QUOTE
The Australian Government is heavily constrained in such matters by the Section 51
(xxxi) of the Australian Constitution which says:
45 51. The Parliament shall, subject to this Constitution, have power to
(xxxi) the acquisition of property on just terms from any State or person
p25 10-2-2010
for any purpose in respect of which the Parliament has the power to
make laws;
"The Australian Government can only alter the Constitution by referendum of the people.
5 "State Governments can change theirs by achieving an absolute majority vote in each Chamber
of the Parliament.
END QUOTE
.
Again
10 QUOTE
"State Governments can change theirs by achieving an absolute majority vote in each
Chamber of the Parliament.
END QUOTE
.
15 As set out above no state can amend its constitution but by approval of an proposed amendment
to amend its constitution by way of successful State referendum.
I may add that while I respect the intentions of Wilson Tuckey as being honourably intended I
do however view they are ill conceived and seek to somehow achieve something that already is
constitutionally applicable., while obviously it is a very serious matter he, and likely all other
20 parliamentarians (both State and commonwealth) do not understand that any constitution (state of
Federal) can only be amended by a successful referendum.
.
QUOTE
25 The CHAIRMAN.-I do not think I can rule this proposed amendment out of order.
Every clause, or nearly every clause, in a Bill in some way qualifies the preceding
clauses. They extend the operation of those clauses, and, in some instances they limit
the operation of the clauses. This is not a distinct negative, and I think it would be unduly
curtailing the power of the committee to arrive at such a conclusion as they may think fit if
30 I ruled this out of order.
END QUOTE
.
QUOTE Sir EDWARD BRADDON.-
35 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
40 people of United Australia and create dissatisfaction with our work, it must be evident
that too much care has not been exercised.
END QUOTE
.
45 QUOTE
Mr. OCONNOR (New South Wales).-The honorable and learned member (Mr. Isaacs)
is I think correct in the history of this clause that he has given, and this is [start page 672]
one of those instances which should make us very careful of following too slavishly the
provisions of the United States Constitution, or any other Constitution. No doubt in putting
50 together the draft of this Bill, those who were responsible for doing so used the material
p26 10-2-2010
they found in every Constitution before it, and probably they felt that they would be
incurring a great deal of responsibility in leaving out provisions which might be in the least
degree applicable. But it is for us to consider, looking at the history and reasons for these
provisions in the Constitution of the United States, whether they are in any way applicable;
5 and I quite agree with my honorable and learned friend (Mr. Carruthers) that we should be
very careful of every word that we put in this Constitution, and that we should have no
word in it which we do not see some reason for. Because there can be no question that in
time to come, when this Constitution has to be interpreted, every word will be weighed and
an interpretation given to it; and by the use now of what I may describe as idle words which
10 we have no use for, we may be giving a direction to the Constitution which none of us now
contemplate. Therefore, it is incumbent upon us to see that there is some reason for every
clause and every word that goes into this Constitution.
END QUOTE
.
QUOTE 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
Parliament to pass legislation that would really defeat all the principles inserted
20 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."
END QUOTE
.
25 QUOTE
Mr. SYMON.-Of course, the absolute control by a state of everything within its own
borders is retained by this Constitution, except in respect to such matters as are
expressly handed over to the Commonwealth.
END QUOTE
30 .
QUOTE
Mr. HIGGINS.-The particular danger is this: That we do not want to give to the
Commonwealth powers which ought to be left to the states. The point is that we are
35 not going to make the Commonwealth a kind of social and religious power over us.
END QUOTE
.
What should be understood that the dynamics of the constitution as a whole should not be upset
merely because of ill-conceived proposals.
40 As a CONSTITUTIONALIST it is my view that all governments would do better to have the
OFFICE-OF-THE-GUARDIAN as part of its system so as to avoid as much as possible the
problems that are now arising time and time again.
.
QUOTE
45 Kevin Rudd PM
.
Kevin,
as a CONSTITUTIONALIST I seek your clarification/explanation within
which constitutional powers you hold that the Commonwealth of Australia
50 can legislate and/or declare/define matters regarding ETS (Emission
p27 10-2-2010
Trading Scheme) within the Commonwealth of Australia?
.
Gerrit
.
5 Mr G. H. Schorel-Hlavka
.
24-10-2009
END QUOTE
.
10 I may state no response was received upon this email! Shame this very important issue was
disregarded!
.
As the courts have the legally embedded principle to nullify any laws, both State and/or
commonwealth then clearly if we have a properly working judiciary system then the problems
15 referred to in regard of Mr Peter Spencer and others never should have eventuated. Regretfully
because of the ongoing gross misconception about the true meaning and application of the
(federal) constitution we have ended up with so many problems. The issue is therefore that all
laws should be subjected to a rigid check to its constitutional validity by the OFFICE-OF-THE-
GUARDIAN and not be based upon the political views of a political party in power, this as
20 landowners should not have to suffer ongoing where all this could have been avoided in the first
place.
.
This submission is not intended to deal with the issue of conservation, emission, environment,
water, irrigation, etc as to its justifications because as a CONSTITUTIONALIST I seek to stick
25 to the constitutional issues themselves, and not be judgmental about the good or bad of
legislative provisions as such.
.
This submission is not intended and neither must be perceived to contain all relevant issues
but in itself should indicate that ongoing undue harm has been inflicted upon landholders
30 despite the embedded legal principles in the constitution that should have protected them of
it.
.
.MAY JUSTICE ALWAYS PREVAIL®

.
35 Awaiting your response, G. H. Schorel-Hlavka
p28 10-2-2010

100210-SUBMISSION Re Native Vegetation Laws-Etc

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Senate Finance and Public Administration Committee 10-2-2010

(b) compensation arrangements to landholders resulting from the imposition of such

(d) any other related matter.

WILSON TUCKEY - FEDERAL MEMBER FOR

a) apply to all levels of Government within the Commonwealth of

HON WILSON TUCKEY MP

10 Mr. KINGSTON: Hear, hear.

a) apply to all levels of Government within the Commonwealth of

.MAY JUSTICE ALWAYS PREVAIL®

35 Awaiting your response, G. H. Schorel-Hlavka

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