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ISSUE: 20180221- Re What constitutes Bail-in, and what are the protections, etc, & the constitution

As a CONSTITUTIONALIST my concern is the true meaning and application of the constitution.

What constitutes Bail-in, and what are the protections for ordinary customers is the
question that Parliament must answering the interest of clarity and avoid wanton gambling
by banks
In my view APRA would constitutionally have absolutely no powers to convert any citizen’s
entitlements/rights to nullify it without due and proper compensation, any legislation providing
otherwise would be null and void. The purported ‘crisis resolution’ powers are not a resolution at
all but merely an unconstitutional gimmick by the Commonwealth of Australia for its gross
failure to appropriately have governed to ensure that the banks, etc, are operating lawfully
without unscrupulous risky management. There is absolutely no doubt by me that the move
pursued by republican is not to have a head of state of Australian origin as if that was the case a
better manner could be developed to achieve this, but rather to get rid of the straitjacket the
Commonwealth of Australia Constitution Act 1900 (UK) with its embedded legal principles.
Hence, the republican campaign failed to produce any republican constitution, this even so the
current constitution prevents any republican government.
Hansard 6-4-1897 Constitution convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE

Sir SAMUEL GRIFFITH: I am trying to get at the ideas which are underlying the argument of hon.
gentlemen. I confess I have not got at them yet. The hon. member, Mr. Deakin, talks about the powers
exercised by the ministers of the Crown in Great Britain. They do not differ in any respect from the
powers exercised by ministers of the Crown in any other country.

Dr. COCKBURN: They are much superior to the powers of ministers here!

Sir SAMUEL GRIFFITH': Not in the east.

Mr. DEAKIN: The powers of our ministers are limited, and theirs are unlimited!

END QUOTE

The British Parliament is not limited by the provisions of a constitution as is applicable with the
Commonwealth of Australia Constitution Act 1900 (UK) and as such the notion of wanting an
Australian Head of State is utter and sheer rubbish as it is nothing but a mere cover up to push
for greater ministerial and other legislative powers. If anything underlines this then it is the
numerous failed referendums that pursued the same.

HANSARD 16-3-1898 Constitution Convention Debates


QUOTE Mr. BARTON:
As to the word "person," the British Interpretation Act of 1889, which will be largely applied to the
construction of this statute by the Imperial authorities, provides that where the word "person" is used, unless
the Act otherwise provides, the word "corporation" shall be included.
END QUOTE
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While the actual details are relating to body corporate, this nevertheless is a legal principle
embedded in the constitution.

As I indicated in my submissions “20140725-G. H. Schorel-Hlavka O.W.B. to Submissions to


the Financial System Inquiry” and further supplements (1) 20170730, (2) 20170802, (3)
20170803, (4) 20170804, (5) 20170815, (6) 20170816, (7) 20170820, (8) 20170919, (9)
20170922, that the Commonwealth cannot and neither can allow others to acquisition without
appropriate compensation. The commonwealth can create for itself corporations and regardless
what legislation it may provide for it cannot circumvent the constitutional requirement to provide
appropriate compensation.
If then the commonwealth were to have another commonwealth bank the question would be
could it then garnish deposits and shareholders entitlement in the same manner as private banks
could do? Obviously not. Neither could it interfere with any state banking system operating
within the boundaries of a State. As such, any legislation of Bail-in in.
.
Hansard 21-1-1898 Constitution Convention Debates
QUOTE Mr. HOWE:
They show that the thrift practised by the people of Australia is unparalleled in the history of the world. But
there is another side to this question, and a very gloomy and sorrowful side indeed. There are records of
bankruptcy, of reckless, and in some instances corrupt, management, when the hard earnings of the
people and the savings of a lifetime have been swept away-have melted away like snow before the
noonday sun. Through this reckless and corrupt management men who thought they had provided for
their old and declining age found themselves stranded on the cheerless shores of charity, and many of
them have had to accept even amongst ourselves the pauper's lot. The pauper's lot in Australia or in
any other country is to the deserving poor one of the saddest and darkest blots on our civilization.
END QUOTE

In my view, Bail-in only would ensure that banks would continue to recklessly gamble with
entitlements of its customers. The correct manner to deal with banks is to appropriately legislate
to seek to prevent such irresponsible gambling.
Hansard 17-3-1898 Constitution Convention Debates

QUOTE Sir EDWARD BRADDON.-

When we consider how vast the importance is that every word of the Constitution should be correct,
that every clause should fit into every other clause; when we consider the great amount of time, trouble,
and expense it would take to make any alteration, and that, if we have not made our intentions clear,
we shall undoubtedly have laid the foundation of lawsuits of a most extensive nature, which will harass
the people of United Australia and create dissatisfaction with our work, it must be evident that too
much care has not been exercised.
END QUOTE
.
Hansard 8-2-1898 Constitution Convention Debates
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 together the draft of this Bill, those who were responsible for doing so used
the material 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; 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 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
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It is clear that because corporation legislative powers was provided to the commonwealth the
Framers of the Constitution held that then also banking legislative powers (other than State
banking) was to be provided to the commonwealth. It also did provide for bankruptcy legislative
powers. If then banks as corporation could do bail-in then one could argue the same could be
applied by any other corporation. Why then have bankruptcy legislation at all? Why have the
myriad of legislation about corporations not acting when insolvent, etc. the very reason the
bankruptcy legislative powers was provided was so that corporations also would be answerable
for reckless management. Well, then any bail-in (or for that also bail-out) would be contrary to
the legal principle embedded in the constitution that the Commonwealth shall be able to legislate
as to bankruptcy. Those legislative powers are to deal with anyone, including corporations
regardless if they are banks or other financial institutions and/or non banking corporations to act
financially responsible or face the legal consequences. This cannot exist where there is a bail-
in/bail-out system in place.

HANSARD 22-9-1897 Constitution Convention Debates

QUOTE The Hon. E. BARTON (New South Wales)[10.32]:

I have read these reasons through very carefully, and I have been unable to discover that any of the
evils which my hon. and learned friend, Mr. Clark, fears may be expected from leaving these words as
they are. The powers are powers of legislation for the peace, order, and good government of the
commonwealth in respect of the matters specified. No construction in the world could confer any
powers beyond the ambit of those specified.

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

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

END QUOTE
.
Hansard 8-3-1898 Constitution Convention Debates
QUOTE Mr. ISAACS.-
We want a people's Constitution, not a lawyers' Constitution.
END QUOTE

Hansard 2-3-1898 Constitution Convention Debates


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 among the subjects confided to the Commonwealth.
END QUOTE

The rights of citizens as to entitlements in banks/financial institutions, etc, I view is not within
the powers of the commonwealth to obliterate.

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HANSARD 26 March 1897 Constitutional Convention Debates
QUOTE

Mr. ISAACS: To whom does the country belong?

Mr. DOBSON: The country belongs to the people; but the people who are most entitled to our
consideration are the people who are thrifty and intelligent, and have something to pay our liability.

Mr. ISAACS: Life and liberty go for nothing, then!

END QUOTE

We have had that despite of s92 of the constitution States hand the NT have commenced to
lease/sell the ports. Victoria reportedly doing this for more than $7billion dollars. This I view is
an unconstitutional tax, as it is not a charge relating to wharfage cost but a pure profit. It means
that the corporations who paid out those billions will slug users of the port additionally as to
recover the billions of dollars it paid to the state government, a clear violation of section 92.
The legislative powers as to corporations despite the High Court of Australia WorkChoices
ruling actually cannot extend to contracts which are created within the limits of a state.
HANSARD 17-4-1897 Constitution Convention
QUOTE Mr. DEAKIN:
They both desire to retain for their Several States for all time the privilege of controlling industrial
disputes within their own borders.
END QUOTE
.
HANSARD 19-4-1897 Constitution Convention
QUOTE Mr. CARRUTHERS:
Mr. Barton first of all recites Dicey to show what occurs under the unwritten Constitution of
England. But here we are framing a written Constitution. When once that Constitution is framed we
cannot get behind it.
END QUOTE
.
HANSARD 27-1-1898 Constitution Convention Debates
QUOTE Mr. SYMON.-
The relations between the parties are determined by the contract in the place where it occurs.
END QUOTE
And
HANSARD 27-1-1898 Constitution Convention Debates
QUOTE Sir EDWARD BRADDON (Tasmania).-
We have heard to-day something about the fixing of a rate of wage by the federal authority. That
would be an absolute impossibility in the different states.
END QUOTE
And
HANSARD 27-1-1898 Constitution Convention Debates
QUOTE
Mr. BARTON: If they arise in a particular State they must be determined by the laws of the place
where the contract was made.
END QUOTE

It therefore is clear that in my view any corporation’s legislative power to cover employment
contracts within the boundaries of a state is utter and sheer nonsense.
Hansard 3-4-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian
Convention)
QUOTE

Sub-clause 19. The status in the commonwealth of foreign corporations, and of corporations formed in any
state or part of the commonwealth.

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Mr. MUNRO: We have agreed to sub-clause 13, dealing with the incorporation of banks, and I do not see
why a similar provision should not be made in regard to the incorporation of companies. Why should they not
be under the control of federal officers? At the present time the law as to incorporation is different in the
different colonies, and the result is [start page 686] extremely unsatisfactory in many cases. I do not see
why we should not make the same provision in regard to the incorporation of companies as we have made in
regard to the incorporation of banks. We might introduce at the commencement of the sub-clause words to
this effect: "The registration or incorporation of companies."

Sir SAMUEL GRIFFITH: I do not think we should. There are a great number of different corporations.
For instance, there are municipal, trading, and charitable corporations, and these are all incorporated in
different ways according to the law obtaining in the different states.

Mr. MUNRO: But as to trading corporations!

Sir SAMUEL GRIFFITH: It is sometimes difficult to say what is a trading corporation. What is
important, however, is that there should be a uniform law for the recognition of corporations. Some states
might require an elaborate form, the payment of heavy fees, and certain guarantees as to the stability
of members, while another state might not think it worth its while to take so much trouble, having
regard to its different circumstances. I think the states may be trusted to stipulate how they will
incorporate companies, although we ought to have some general law in regard to their recognition.

Sir JOHN BRAY: I think the point raised by the hon. member, Mr. Munro, is worth a little more
consideration than hon. members seem disposed to bestow upon it. We know what some of these
corporations are; and I think joint-stock companies might be incorporated upon some uniform method. In
South Australia, a banking company is not allowed to be incorporated under the Companies Act; still, there is
nothing in Victoria of which I am aware to prevent a banking company from being registered there as a
limited company and opening a branch in South Australia a few days afterwards. I think it is necessary,
therefore, to have some uniform law. There is nothing in which the public should have more confidence than
in banks which are in any way recognised by the state; and I think we should have some uniform system of
incorporating banks. Many companies, although doing business under different names, are, in reality,
banks.

Mr. MUNRO: The banks are incorporated under the Companies Act in Victoria!

Sir JOHN BRAY: You can establish financial companies, which you do not call banks, but which answer
all the purposes of banks. We have provided that the federal parliament shall legislate as to the
incorporation of banks; but there is nothing to prevent the incorporation by the states themselves, quite
apart from the federal parliament, of trading companies which will do all the ordinary business of banks. If it
is desirable to intrust legislation as to the incorporation of banks to the federal government, there is no reason
why we should not say that the registration of financial companies doing all the business of banks should be
dealt with in the same manner.

Sub-clause agreed to.

END QUOTE
It is very clear from this that not only banks (other than State banks) but also financial
institutions could circumvent bankruptcy by the bail-in provisions. Well, the constitution is
between the state (including the commonwealth as such) and its citizens,. Hence, the
commonwealth cannot undermine the security of citizens to allow banks/financial institutions,
etc, special provisions to not only circumvent bankruptcy provisions but to effectively steal the
rights and entitlements of ordinary citizens.
Why indeed have this elaborate superannuation provisions for citizens to provide for old age, if
their saving, in whatever form they may exist, can be by the stroke of a pen be wiped out?
What if a person A has a debt of $1,000 doing his shopping via a credit card as to avoid bank
withdrawal fees of a savings account and then when wanting to transfer the monies to pay out
the credit debt discover the bank just wiped out all savings but not his lesser debt. The bank then

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could start bankruptcy proceedings to perhaps sell the customers home, for failing to pay the
credit card debt, this even so the customer is at no fault.
I for example use a credit card but avoid paying interest by paying out the debt within the 55
days provided for interest free usage. By this I avoid charges if I were instead of using the credit
card use my savings account. As such, I am too well aware that the kind of bail-in pursued by the
commonwealth would be a gross denial of NATURAL JUSTICE as well as DUE PROCESS.
Both are legal principles embedded in the constitution!
Hansard 1-3-1898 Constitution Convention Debates
QUOTE Sir HENRY PARKES
It is an organism, as I have tried to explain, for protecting each individual citizen in the undisturbed
possession of his property, in the undisturbed possession of his liberty, and from my point of view the
expense of that government ought to be defrayed in the easiest manner and only to the extent which is
necessary for that purpose, and that taxation is unjustifiable for any other purpose whatever.
END QUOTE

Hansard 6-3-1891 Constitution convention Debates


QUOTE Mr. BARTON:

I hope that I am at any rate acting in the spirit in which we all labour together, and that the result of our
labour will be to found a state of high and august aims, working by the eternal principles of justice and not
to the music of bullets, and affording an example of freedom, political morality, and just action to the
individual, the state and the nation which will one day be the envy of the world.

END QUOTE

Hansard 20-4-1897 Constitution Convention Debates


QUOTE

Mr. HENRY: I would like to raise a question as to the right of the Commonwealth to tax materials
for State purposes. In the event of a colony importing rails, machinery, engines, &c., for State
purposes, I would like to know whether such exports are to be free from Customs duties. Will the
Federal Parliament have a right to levy duties on materials imported for State purposes?

Mr. BARTON: This is a matter that was discussed very fully in the Constitutional Committee, and I think
my hon. friend Sir George Turner will remember that I consulted the members of the Finance Committee
upon it, intimating to them the opinion of the Constitutional Committee on the point. The words:

Impose any tax on property

do not refer to the importation of goods at all, and any amendment to except the Customs would be
unnecessary. This clause states that a State shall not, without the consent of the Parliament of the
Commonwealth, impose taxation on property of any kind belonging to the Commonwealth, meaning by that
property of any kind which is in hand, such as land within the Commonwealth. That has no reference to
Customs duties.

Sir GEORGE TURNER: Will articles imported by the States Governments come in free?

Mr. BARTON: The question then arises whether articles imported by the States Governments are to
come in free, but this section has nothing to do with that. Under this Bill and in the measure of 1891 I
believe duties would have been collectable upon imports by any State, and after the consultation which
I had with the hon. member and his colleagues on the Finance Committee the Constitutional
Committee decided not to make any exemption in the case of any State.

The CHAIRMAN: I would ask hon. members to confine themselves to the discussion of this clause.

Sir GEORGE TURNER: I propose to carry out your desire, Sir, to restrict my remarks to this particular
clause. In Victoria, as I mentioned the other day, we have an independent body called a Harbor Trust, which
collects a large amount of money and, as far as I can recollect, does it in the way of tonnage dues. If we pass

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this clause, and we deprive this body of its revenue, they will simply have to fall back upon the Government
of the State. What is the meaning of the phrase:

Impose tonnage dues?

According to the way I read the clause it means that it is not to pass any law which would put on any fresh
dues.

Mr. MCMILLAN: I suppose the States gave these rights to the harbor trust.

Sir GEORGE TURNER: The State passes a law constituting a Harbor Trust and gives over to them the
right to collect these various revenues. What I desire is to preserve that right, whatever it may be. I am in
great difficulty as how this particular clause will affect that body, as well as similar bodies in other colonies
which collect small sums. I would be glad if my hon. friend Mr. Barton can give me any assistance with
regard to this matter, and tell us if this clause will or will not interfere with this existing body. If that be so I
shall be prepared to let the clause pass, and then, before the adjourned Convention is held, we shall have an
opportunity in the different colonies of ascertaining how these dues and rates are collected, and how this
clause will affect them, and whether we should make this amendment. In the meantime I should like Mr.
Barton to give me the real meaning of the clause.

Mr. BARTON: As far as I can gather from this clause and the clause of 1891, it seems to me to refer to
any future legislation on the subject:

The State shall not impose tonnage dues.

[start page 1003]

The question of whether existing legislation would be invalidated would depend, first, upon whether
the dues were an infringement of the equality of trade throughout the Commonwealth, and next upon
whether the Commonwealth passed a law which-if it were in the province of the Commonwealth to past; it-
was in conflict with the law of the State, in which case, to the extent of the difference between the laws, the
law of the Commonwealth would prevail if section 98 were passed. It deals only with future legislation, I
think. but these tonnage dues may incur a prohibition if we find that they are a system of taxation,
because the Parliament of the Commonwealth has power to raise funds by any method of taxation. If
the method of carrying out that power were found to be in conflict with the law of the State, the law of
the Commonwealth would prevail. We have no provision for the Commonwealth taking over harbors or
harbor works, and it may be a question for consideration whether the Commonwealth, as it has power to
legislate on other subjects relating to the regulation of commerce and trade and so on, should not take over
harbor works too. That is what, on the face of it, seems to me to be the effect of the clause.

Mr. MCMILLAN: I think these tonnage dues must be excepted if the Parliament is to take over harbors.
Tonnage dues are simply payment for services rendered, and they do not practically come under the system
of taxation at all. They are levied for something done. If they are not excepted great trouble will ensue,
especially in regard to corporations. Is that System referred to by Sir George Turner administered by a
Minister of the Crown?

Sir GEORGE TURNER: No.

Mr. MCMILLAN: Does it apply then? These. are dues paid by the State as a State, but the case mentioned
is one of a corporation, in which there is a payment for services rendered. Tolls are exacted for the services,
call them dues or wharfage rates or whatever you like; they are the same in essence.

Sir GEORGE TURNER: If we do not guard against it corporate bodies may evade the Act, and the State
may appoint corporations to do work so as to evade it.

Mr. MCMILLAN: Something will have to be done or great trouble may ensue.

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Mr. BARTON: With reference to the question of wharfage rates, members will recollect that the United
States Constitution contains a prohibition against the State levying tonnage duties without the consent of
Congress. It has been decided in the case of the Packet Company v. Catlettsburg, 105 U.S., 559:

A city or town on a navigable river may exact a reasonable compensation for the use of the wharf which it
owns without infringing the constitutional provisions concerning tonnage taxes or regulations of commerce.

That would appear to be rather in favor of the exemption of the harbor trust.

END QUOTE
The quotations should speak for themselves that we have a constitution with embedded legal
principles and politicians should respect the rights of citizens that where their labour has resulted
to them gaining certain benefits to care for their old age, etc, then it is not within the rights of any
government to unilaterally deny the citizen of such acquired benefits. It would undermine the
social security existing within our society and only would advance for banks and others to
continue their scrupulous mismanagement without proper legal accountability.

HANSARD 4-3-1891 Constitution Convention Debates


QUOTE Mr. FYSH:
I know that a great number of individuals consider the probabilities of any attack upon these shores as
very unlikely; but we must always be prepared for the unlikely, for it is the unlikely which too often
happens. I hold that we have no reliable forces-there is no cohesion in our existing forces to carry out the
great work for which they have been intended, and for which large expenditure is going on year by year.
There can be no cohesion where the links are distributed in all corners, and although we, as public men, have
sworn allegiance to the Crown, and the people themselves have owned that allegiance, we are not in a position
to defend the allegiance which we owe, and irrespective of this fact, since we have borrowed over
£170,000,000 from our creditors in all parts of the world, if there be any fear of some desultory marauder
ever attacking some of these colonies we shall find commercially, and in connection with the depreciated value
of our securities, that we have been living in a fool's paradise, and that we should have been much wiser
had we discharged to ourselves, to the old country whose flag we have reared, and to the [start page 44]
creditors whose money we have borrowed, the responsibility which rests upon every English community
of defending itself from attacks, from whatever quarter they may, come.
END QUOTE

Citizens (including corporations) which engage in legal binding contracts upon their own
decision making reasons, such as income , securities, etc, should not then be deprived to honour
those legal obligations merely because APRA may ignore those issues and rather decide to bail-
in/bail-out reckless unscrupulous management of banks and other corporations.
Regardless if foreign jurisdictions may or may not legislate as to bail-in they are not operating
within the sphere and constitutional principles of the Commonwealth of Australia Constitution
Act 1900 (UK) and as such may be able to legislate where the Commonwealth of Australia
cannot do so. No use to argue that what should be able to be done in foreign jurisdiction should
also be permitted in the commonwealth of Australia, as after all some countries allow the stoning
of women, the amputation of body parts of a child even if merely steaking or suspected of
stealing an apple, and surely we do not want to cave in to whatever foreign jurisdictions provide
for. We have our constitution and nothing can overrule this! Any legislation to the constitution is
and remains to be ULTRA VIRES Ab Initio and so null and void.
This correspondence is not intended and neither must be perceived to state all issues/details.
Awaiting your response, G. H. Schorel-Hlavka O.W.B. (Gerrit)
MAY JUSTICE ALWAYS PREVAIL® (Our name is our motto!)
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