20161020-G. H. Schorel-Hlavka O.W.B. To The Secretary Environment and Planning Committee-Supplement 3

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The Secretary Environment and Planning Committee

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20-10-2016
Parliament House, Spring Street

EAST MELBOURNE VIC 3002
Phone: 03 8682 2869
Email: epc@parliament.vic.gov.au
SUBMISSION Supplement 3
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Re: 20161020-G. H. Schorel-Hlavka O.W.B. to The Secretary Environment and Planning Committee-
Sir/Madam,
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Further to my 17-10-2016 submission and 18-10-2016 supplement 1 & 10-10-2016

Supplement 2 I desire to add the following;
In Sydney Municipal Council v Commonwealth (1904) the High Court of Australia held that
municipal/shire councils when applying council rates, they are actually applying delegated land
taxation.
And as the High Court of Australia in Sydney Municipal Council v Commonwealth [1904] HCA 50; (1904) 1
CLR 208 (26 April 1904) (http://www.austlii.edu.au/cgibin/sinodisp/au/cases/cth/HCA/1904/50.html?stem=0&synonyms=0&query=title(Sydney%20Municipal%20C
ouncil%20v%20Commonwealth%20) stated:
QUOTE
In a constitutional instrument, therefore, defining and limiting the power of constitutional authorities,
the word "tax" must be construed in the wider sense, and a prohibition of the imposition of a tax must
be held to include a prohibition of any such imposition by a delegated authority, by whatever name the
tax is called.
END QUOTE
Sydney Municipal Council v Commonwealth [1904] HCA 50; (1904) 1 CLR 208 (26 April 1904)
QUOTE
But to get at the real meaning we must go beyond that, we must examine the context, consider the
Constitution as a whole, and its underlying principles and any circumstances which may throw light upon the
object which the Convention had in view, when they embodied it in the Constitution. This is a sound rule in
the interpretation of Statutes, and is well explained by Lord Blackburn in the River Wear Commissioners v.
Adamson , 2 App. Cas., at p. 763, as follows:"In all cases the object is to see what is the intention
expressed by the words used. But, from the imperfection of language, it is impossible to know what that
intention is without inquiring further and seeing what the circumstances were with reference to which the
words were used, and what was the object, appearing from those circumstances, which the person using them
had in view; for the meaning of words varies according to the circumstances with respect to which they are
used." Before examining the words of the section, it will be useful to advert to the circumstances which the
Convention had in view in framing this section, and their purpose and object in relation to those
circumstances.
END QUOTE
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Humphreys Executor v. United States, 295 U.S. 602 (1935)

QUOTE
More to the same effect appears in the debates, which were long and thorough and
contain nothing to the contrary. While the general rule precludes the use of these debates to
explain the meaning of the words of the statute, they may be considered as reflecting light
upon its general purposes and the evils which it sought to remedy. Federal Trade
Commission v. Raladam Co., 283 U.S. 643, 650 , 51 S.Ct. 587, 79 A.L.R. 1191
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G. H. Schorel-Hlavka O.W.B.
INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD
A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0
Email: admin@inspector-rikati.com. For further details see also my blog at Http://www.scrib.com/InspectorRikati
2
END QUOTE
Hansard 2-2-1898 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE Mr. DEAKIN (Victoria).The record of these debates may fairly be expected to be widely read, and the observations to which I
allude might otherwise lead to a certain amount of misconception.
END QUOTE
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Hansard 23-3-1897 Constitution Convention Debates

QUOTE Mr. BARTON:
We ought to leave it open to this extent, that while we agree upon essentials, and express ourselves fully
and freely upon all our views, still, so far as our views are not negatived by any principle here laid down,
their embodiment in any resolution may stand over for Select Committee and afterwards [start page 20] for
Committee of the whole House, when they may be debated with the freest publicity and fullest
freedom. I believe we shall by this process best arrive at conclusions; not that, as many of us would like.
we shall be able to drive our own particular views to an issue at once, but we shall discuss all these matters,
both constitutionally and otherwise, and then we may arrive at views which, though contrary to our
present opinions, shall essentially represent the views of those who sent us here to deal with the
problems we have to discuss.
END QUOTE
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As the States are created within s106 of the Commonwealth of Australia Constitution Act 1900
(UK) subject to this constitution then the implied legal principles also apply to the States.
One is that all revenue must be placed in Consolidate Revenue Funds and can only be drawn by
way of Appropriation. One will find however that billions of dollars are unaccounted for because
municipal/shire councils do not place the monies collected in the States Consolidated Revenue
Fund but well used it for all kinds of gimmicks.
As I indicated I view that all and any monies ordered by the Court regarding alleged breaches of
state laws such as the Country Fire Authority Act 1958 should be made payable to the
Consolidated Revenue Fund against which the state via Appropriation Bills then can draw
monies for the Country Fire Authority.
My blog www.scribd.com/inspectorrikati has numerous articles published about this, including
that constitutionally environment is a State legislative power not one for the Commonwealth.
QUOTE
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Mr. BARTON.-No; I do not think that there is anything in the Bill that takes it away. Very well, then, if a
state law, or the action of the state, or the action of a citizen of a state, does not contravene Commonwealth
legislation under that power of legislation, granted in this Bill. the state law is still valid, and cannot be
touched or interfered with, and that I conceive is sufficient for the purpose of New South Wales under this
Constitution. Now, my honorable friend (Mr. Isaacs) yesterday, in that remarkably able and statesmanlike
speech which he made-one of the best speeches addressed to this Convention since it began its sittings in
Adelaide-mentioned state laws with regard to irrigation in the United States, especially state laws passed with
reference to the and country, and with reference to California. Now, while my honorable friend mentioned
those in support of his argument, all those instances are evidences that, under the operation of the trade and
commerce clause in America, the right is retained to the states, under the United States Constitution, to deal
with these matters, and is recognised by the courts. And if there were any doubt about that in our own' case,
we have only to refer to clause 99 of this Bill, which tells us thatAll powers which at the establishment of the Commonwealth are vested in the Parliaments of the
several colonies, and which are not by this Constitution exclusively vested in the Parliament of the
Commonwealth, or withdrawn from the Parliaments of the several states, are reserved to, and shall
remain vested in, the Parliaments of the states respectively.
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Mr. KINGSTON.-That is the reservation clause.

Mr. BARTON.-Yes, the reservation clause. Now, that clause has a twofold operation. It means, first, that
the power to deal with water conservation and irrigation, which, if you rely on sub-section (1) alone,
finds no mention in this Constitution, and, therefore, is not a power given to the Commonwealth, but a
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power retained in the states absolutely. And it means, in addition to that, that the states will retain
their power of dealing with the navigation of their rivers, except so far as those rivers fall under the
domination-if you like to use that large word-of the legislation of the Commonwealth, when the
Commonwealth chooses to legislate on the subject of navigation. So that the position of the state is
secure as regards the conservation and use of its waters, except to the extent that there may be an
actual navigation law passed by the Commonwealth, which may have the effect of limiting the state use
of the water of the rivers within that state.
END QUOTE
QUOTE Mr. CARRUTHERS:
We have at present the greatest expert of the British Empire, Colonel Home, engaged in reporting on some
system of irrigation, and, notwithstanding all the objections that may be put to me, I say it will be a distinct
boon to Australia-federated or not-if the supply of water in the Darling can be used by those occupying the
land. There will be just as full benefit derived from that as would be derived if the water were left in the
river. Again, if hon. members study the geography of New South Wales they will see that we have a
number of lakes which are fed by the overflow of the Darling. If we choose to shut off the openings of
these lakes we can diminish the supply of water in the Darling to such an extent as to render it only
navigable for half the period that it is now navigable. A federal law may, by preventing the flow of water
into these lakes during flood time, cause a greater flow for navigation purposes, but if we could enclose the
entrance to these lakes a large area of country could be watered so as to carry half as many sheep again and
produce half as much wool again as it does now. There is another instance on the Lachlan, where we
constructed the Willandra weir. What was the result? In a district where it had been almost impossible to
carry stock to any extent, without going to great expense in conserving water, we dammed the water back
for 100 miles, and there has since been a permanent supply of water, and the country carries twice as many
sheep as it did before. Increased settlement and increased production on those lands will benefit South
Australia, because a great proportion of the traffic will go through the colony. Hon. members may think the
amendment will, to some extent, minimise the difficulty, but it minimises the difficulty to this extent-that it
concentrates the full force and effect of the sub-section on New South Wales; instead of having the right
to interfere with the rivers of Tasmania and West Australia, it will confine the right to the rivers and
their tributaries in Now South Wales, right to our Far North; to our New England waterways-the
Namoi, the Gwydir, and the McIntyre-and all those rivers where the dams are absolutely essential to
the settlement of the country. Federal legislation might be passed prohibiting any interference with the
natural flow of the waters. This is a very far-reaching section, which, if passed, will in the future threaten
the best interests of the great colony of New South Wales. What does Mr. Gordon, with his [start page 805]
double-barrelled amendment, propose? Not to have legislation merely to protect the people lower down the
river Murray; but it is within the cognisance of this Committee that the hon. member has proposed that the
Federal Government should undertake the work of cutting a deep water channel at the Murray mouth, so
that large ships may come in and out of the Murray with freedom, and that if the Federal Parliament does
not do this, authority may be given to the local Government to do it He knows that if the channel is cut,
the water will flow away much more freely than before, and so be of no benefit to the settlers on the river,
but all this is to be done for the benefit of the colony of South Australia only, so that traffic may flow
through its territory. So far as Australia is concerned, the old-world law with regard to waterways will
never apply. Our rivers were never meant to be roadways for traffic, but to run through this continent to
supply our drought-stricken country with water and irrigation, without which we cannot hope to see it
carrying a teeming population, with pastoral and agricultural industries flourishing.
END QUOTE
What ought to be understood is that where it comes to navigationable rivers then the
Commonwealth could legislate to prevent the river to dry out and the water tide to be too low for
shipping, as the framers of the constitution made clear that any dispute of water access regarding
a river such as the Murray River would be a judicial issue and not for the Commonwealth to
decide.
QUOTE 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 judgment that case was wrongly decided, and should be overruled.
END QUOTE
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And this is what the criteria is about. At times the High Court of Australia made rulings as to
constitutional issues but may have done incorrectly, such as the Franklin dam issue, the Heather
Hill case, the Sykes v Cleary case the WorkChoices case, all of them I canvassed in my
published books in the INSPECTOR-RIKATI series on certain constitutional and other legal
issues. As such if a constitutionalist were to present a case the High Court of Australia may
revised its past decision. What we have however is those who call themselves constitutional
lawyers who are considering the constitution as they were educated as a lawyer, rather than to the
real legal principles embedded in the constitution.
As the Framers of the Constitution made clear:
QUOTE
The Right Hon. G.H. REID: I strongly support the amendment for the reasons which my hon. and learned
friend has hinted at. This is an expression which would be more in place in the United States Constitution,
where treaties are dealt with by the President and the senate, than in the constitution of a colony within the
empire. The treaties made by her Majesty are not binding as laws on the people of the United Kingdom,
and there is no penalty for disobeying them. Legislation is sometimes passed to give effect to treaties,
but the treaties themselves are not laws, and indeed nations sometimes find them inconvenient, as they
neglect them very seriously without involving any important legal consequences. The expression, I think,
ought to be omitted. I will deal with the other suggested amendments when the time comes.
END QUOTE
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 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.
END QUOTE
Therefore, contrary to the assertion of the High Court of Australia in KOOWARTA V. BJELKEPETERSEN (1982) 153 CLR 168 High Court of Australia external affairs only relates to
existing powers listed within s51 and 52 of the constitution. Hence environment not being
listed in it cannot fall within Commonwealth legislative powers.
The constitution was setup to divide legislative powers and while generally s51 is taken as to be
concurrent legislative powers reality is that no such word is actually contained in the
constitution itself. Therefore the only way one can assume concurrent legislative powers is to
draw it from the statements of the Framers of the Constitution. But then one needs to consider it
in its proper context that such concurrent legislative powers only exist until the Commonwealth
commences to legislate and no further. As such, once the Commonwealth commenced to
legislate upon a certain subject matter (albeit Taxation is upon the specific taxation subjects) and
besides the ordinary heading a State or all of them may at times invoke s123 of the constitution
to hold a State referendum as to approve or veto any reference of legislative and so judicial
powers to the Commonwealth within s51(xxxvii). Once this is done however then this reference
power is for all times. Again my published books set this out in considerable details.
There is no provision in the constitution to revert legislative powers back to the States. Once a
Commonwealth legislative power then for ever the States are prohibited from legislating on such
subject matter.
.

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QUOTE
Mr. BARTON.-I was going to explain when I was interrupted that the moment the Commonwealth
legislates on this subject the power will become exclusive.
END QUOTE
QUOTE
Mr. BARTON (New South Wales).-If this is left as an exclusive power the laws of the states will
nevertheless remain in force under clause 100.
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Mr. TRENWITH.-Would the states still proceed to make laws?

Mr. BARTON.-Not after this power of legislation comes into force. Their existing laws will, however,
remain. If this is exclusive they can make no new laws, but the necessity of making these new laws will be
all the more forced on the Commonwealth.
END QUOTE
QUOTE
My only desire is to give power to the Federal Parliament to achieve a scheme for old-age pensions if it be
practicable, and if the people require it. No power would be taken away from the states. The sub-section
would not interfere with the right of any state to act in the meantime until the Federal Parliament took
the matter in hand.
END QUOTE
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 legislation.
END QUOTE
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QUOTE Mr. REID:
We must make it clear that the moment the Federal Parliament legislates on one of those points
enumerated in clause 52, that instant the whole State law on the subject is dead. There cannot be two
laws, one Federal and one State, on the same subject. But that I merely mention as almost a verbal
criticism, because there is no doubt, whatever that the intention of the framers was not to propose any
complication of the kind.
END QUOTE
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QUOTE
The Hon. R.E. O'CONNOR (New South Wales)[3.18]: We ought to be careful not to load the
commonwealth with any more duties than are absolutely necessary. Although it is quite true that this
power is permissive, you will always find that if once power is given to the commonwealth to legislate
on a particular question, there will be continual pressure brought to bear on the commonwealth to
exercise that power. The moment the commonwealth exercises the power, the states must retire from
that field of legislation.
END QUOTE
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QUOTE
Mr. OCONNOR.-Directly it is exercised it becomes an exclusive power, and there is no doubt that it will
be exercised.
END QUOTE
This means that when the Commonwealth commence the Land Tax Office on 11 November 1910
then this wiped out states legislative powers as to land taxation and so the delegated powers of
municipal/shire councils to raise council rates (a form of land taxation).
For those who may be aware that the Commonwealth in 1952 abolished land taxation may like to
read my publications upon the same to realise that it didnt nor could constitutionally permit
States tore-enact State land taxation and so neither could provide for municipal/shire council
rates.
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As His Honour French J (as he then was, now French CJ of the High Court of Australia) in his
publications made clear s51(xxxvii) was not a provision for the States to refer powers but for the
Commonwealth to accept it.
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Buloke Shire Council charges me about $360 a year besides the so called council rates, for waste
collection, this even so no waste is collected for years. As I also exposed Sea Lake refuse (tip)
had dead animal bodies, hospital (human) waste, chemical waste, motor vehicle bodies (and so
oil, etc) and the garb age tip altogether and I witnessed how the recycling material separately
collected then by a bulldozer is pushed to the general tip and the lot then is put on fire. And after
the lot is flooded then the salt left behind, as Sea Lake tip is part of the lake at which the tip is
located, I understand is collected.
Here we have Buloke Shire Council grandstanding with Infringement Notices as to whatever but
burning old tires, etc, as if that is not causing a pollution.
I recall in 1991 driving from Swan Hill to Berriwillock when I noticed a huge fire. My first
action was to alert the local fire brigade in Ultima (where the fire was) ab out it. I was verbally
abused for doing so as it was just the local tip and now that I reported it the fire brigade had to
stay there near the fire. Likewise, I witnessed often how other tips such as Berriwillock tip was
put on fire by council workers!
I am not provided with any free passes to dump garbage on any tip and so charged about $360 a
year for something that was originally past of council services within the council rates. I
understand that Buloke Shire Council got the Emergency Service Commission to allow it an
above the rate cap increase (to gain an extra $56,000.00 in rates albeit wasted more than
$18,000.00 litigating against me) and now is purchasing new motor vehicles.
When one consider the Fire Management Plan to which a huge number of people are involved
and yet in real terms as I proved with photos it is used against landowners to micro-manage
illegally their properties and has absolutely nothing to do with Fire Safety Management because
the growth along the highways are clear examples of this. As such the Environment and
Planning Commission may just big time waste its efforts to deal with matters as a toothless tiger
unless it makes sure that government departments and municipal/shire councils are subjected to
the same law enforcements as private landholders are.
Either environment is a State legislative power or it is a Commonwealth legislative power but
both cannot do so this as the constitution specifically was created to provide for separate
legislative powers. The notion of concurrent legislative powers was that either the States or the
Commonwealth could legislate ion a subject matter listed in s51 but only until the
Commonwealth commenced to do so.
That is why it is so important to clarify the decision in the franklin dam case, that treaties cannot
provide the Commonwealth legislative powers where it had none in the first place, this as if
treaties were to provide somehow legislative powers then the entire set up of the constitution was
a sheer waste of time and effort as the Commonwealth can circumvent any
restrictions/prohibitions.
And this is why a constitutional lawyer is an oxymoron (like a fireman-firebug), in that a
constitutionalist research matters upon what an ordinary person would understand the
constitution stands for whereas a lawyer seeks to rely upon legal interpretations even including
alien/foreign jurisdictional authorities as to try to turn the constitution into some meaning not
only never contemplated by the Framers of the Constitution and so the voting public, but in
effect is contrary to what was intended.
.

QUOTE
Mr. CARRUTHERS:
This is a Constitution which the unlettered people of the community ought to be able to understand.
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END QUOTE
.
QUOTE
The Right Hon. C.C. KINGSTON (South Australia)[9.21]: I trust the Drafting Committee will not fail to
exercise a liberal discretion in striking out words which they do not understand, and that they will put
in words which can be understood by persons commonly acquainted with the English language.
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END QUOTE
Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian
Convention)
QUOTE Mr. ISAACS.We want a people's Constitution, not a lawyers' Constitution.
END QUOTE
QUOTE Mr. SYMON (South Australia).That this is not like an Act of Parliament which we are passing. It is not in the position which Mr. Barton has
described, of choosing or setting up a code of laws to interpret the common law of England. This
Constitution we are framing is not yet passed. It has to be handed over not to a Convention similar to
this, not to a small select body of legislators, but to the whole body of the people for their acceptance or
rejection. It is the whole body of the people whose understanding you have to bring to bear upon it, and
it is the whole body of the people, the more or less instructed body of the people, who have to
understand clearly everything in the Constitution, which affects them for weal or woe during the whole
time of the existence of this Commonwealth. We cannot have on the platform, when this Constitution is
commended to the people, lawyers on both sides, drawing subtle distinctions, which may or may not be
appreciated by the people.
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END QUOTE
.
This image (Google) shows the house (with red roof) is about 80 metres drown from the highway
and there it was held the fire danger existed!
One should consider if a Municipal Fire Protection Officer needs to use long distant camera
equipment (tele-lens) to make a photo if then there really could be a real fire danger?
An alleged fire danger should be obvious, such as along the highway part of the soft-shoulder!
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Clearly over a metre high weed/grass at Berriwillock Calder Highway!
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And this is how Buloke Shire Council views that there was no fire danger at the time along
Calder Highway and left it so for the entire fire danger declared period.
The image below (no red roof!) was used in the brief and confirmed in evidenced in chief to be
my property but during cross examination admitted by Mr Wayne Wall Municipal Fire
Prevention Officer not to be my property and in fact he didnt even know where it was from. And
for this kind of nonsense lawyers charged more than $18,000.00 litigation cost?
What is needed not just Fire Management Planning but competent supervision that ensures that a
Municipal Fire Prevention Officer is doling an appropriate job and not fabricates evidence for
the sake to score some conviction/court cost and other orders, this in particular so where the
Chief Fire Officer blatantly fails/ignores to do so.
This document is not intended and neither must be perceived to refer to all details/issues.
20
Awaiting your response,
G. H. Schorel-Hlavka O. W. B. (Friends call me Gerrit)
MAY JUSTICE ALWAYS PREVAIL (Our name is our motto!)

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The Secretary Environment and Planning Committee

Parliament House, Spring Street

Further to my 17-10-2016 submission and 18-10-2016 supplement 1 & 10-10-2016

Humphreys Executor v. United States, 295 U.S. 602 (1935)

Hansard 23-3-1897 Constitution Convention Debates

Mr. KINGSTON.-That is the reservation clause.

Hansard 27-1-1898 Constitution Convention Debates

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

Hansard 30-3-1897 Constitution Convention Debates

Hansard 30-3-1897 Constitution Convention Debates

Hansard 2-3-1898 Constitution Convention Debates

Hansard 19-4-1897 Constitution Convention Debates

Awaiting your response,

G. H. Schorel-Hlavka O. W. B. (Friends call me Gerrit)

MAY JUSTICE ALWAYS PREVAIL (Our name is our motto!)

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