Chapter 008 - p9 - Ultra Vires V Intra Vires

Chapter 008 ULTRA VIRES v INTRA VIRES
* Gary, what is ULTRA VIRES and INTRA VIRES and how does it apply?
**#** INSPECTOR-RIKATI®, when something is subject to a constitutional based objection

then it becomes ULTRA VIRES from its creation. Meaning, that it stop having any legal force.
Take for example the Australian Citizenship Act 1948, which I objected against on constitutional
based grounds, that the Commonwealth of Australia has no constitutional powers to legislate as to
define/declare in regard of “citizenship”. What this means is, that the moment I made this
constitutional based objection then the Australian Citizenship Act 1948 for so far it was subject
to this constitutional based objection became ULTRA VIRES and so without legal force. From
the time it was created, meaning 1948!
* Isn’t that a disaster if everything became illegal?
**#** That is not my issue. If anything, this only underlines why we need to have an OFFICE
OF THE GUARDIAN as to try to make clear what disaster there looms if matters are not
properly conducted. After all, you cannot have that we have a Constitution but then the
Government and/or the Parliament can do as it pleases.
* But surely about 60 years is a darn long time to have everything declared unconstitutional?
**#** I am not seeking to have it declared unconstitutional, it was all along unconstitutional all
that is being done is to expose it. You do not need to have something declared ULTRA VIRES,
that already is. What a person needs to do then, who seeks to have this ULTRA VIRES legislation
made legally enforceable is to seek the High Court of Australia to declare it to be INTRA VIRES.
* Would it not then be better to leave matters as they are?
**#** You mean leave it unconstitutional?
* Yes.
**#** Well, that is now the problem where John Howard in 2001 called the election and with the
then “CHILDREN OVERBOARD” allegations it was obviously important to him that the
election was not going to delayed as to have new writs issued as it could have made a difference
by John Howard returning back into power or being kicked out. So, are you really saying we
should ignore constitutional issues and just carry on disregarding what is constitutionally proper?
* No, not that but if there is a certain passage of time….
**#** Yes, that is what Gummow J of the High Court of Australia tried to argue that there had 23
months passed before the hearing was held. As if that was my fault the High Court of Australia
couldn’t bother to arrange an urgent hearing for such constitutional important matter. Come on,
you cannot allow unconstitutional conduct to be tolerated as otherwise the Courts can manipulate
their power to prevent any hearing to be held within a reasonable time and then claim that with
passage of time it better be left as it is.
* I get your point.
**#** The Constitution is the will of the People and if you allow anyone to trespass on it then
why have a Constitution at all?
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The following applies as much to Federal laws of the Commonwealth of Australia as it does to
federal laws in the USA;
http://familyguardian.tax-
tactics.com/Subjects/LawAndGovt/ChallJurisdiction/AuthoritiesArticle/AuthOnJurisdiction.htm
 The general misconception is that any statute passed by legislators bearing the appearance of law constitutes
the law of the land. The U.S. Constitution is the supreme law of the land, and any statute, to be valid, must
be in agreement. It is impossible for both the Constitution and a law violating it to be valid; one must
prevail. This is succinctly stated as follows:
The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no
law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its
enactment, and not merely from the date of the decision so branding it. An unconstitutional law, in legal
contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it
purports to settle just as it would be had the statute not been enacted.
Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no
rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no
acts performed under it. . .
A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede
any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is
superseded thereby.
No one is bound to obey an unconstitutional law and no courts are bound to enforce it.
Sixteenth American Jurisprudence

Second Edition, 1998 version, Section 203 (formerly Section 256)
Quick & Garran's "Annotated Constitution of the Commonwealth of Australia" more accurately
and more meaningfully says that;
"A law in excess of the authority conferred by the Constitution is no law; it is wholly void
and inoperative; it confers no rights, it imposes no duties; it affords no protection.".
Hansard 1-3-1898 Constitution Convention Debates
Mr. GORDON.-
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.
Again;
and it leaves open the whole judicial power once the question of ultra vires is raised
Mr. SYMON.-It is not a law if it is ultra vires.
Mr. GORDON.-It would be law by acquiescence. It would remain a law until it was attacked. It might
injure a few individuals, but that might be to the benefit of the whole. Or if it were not, the party whose area of
power was infringed on would attack if.
Again;
It would remain a law until it was attacked.
Clearly, once I objected to the constitutional validity of the proclamation, writ(s), election, etc
then from that moment it was and remained ULTRA VIRES.
For the Australian Electoral Commission, so to say, poesy footing about, playing games about
jurisdiction to avoid the matters to be determined upon their MERITS was in affect ensuring that
the purported election held was and remained ULTRA VIRES and without legal force.
In my it was darn right silly if not absurd for the Australian Electoral Commission to drag this
matter on, as he did, rather then himself insisting that the High Court of Australia immediately
made a ruling upon the constitutional validity of the election to be held.
That was in fact what the Framers of the Constitution intended should have to be done, so a new
election could be held or a election could be held instead of the originally planned election before
Parliament were to sit.
The following shows that the Framers of the Constitution defeated Mr Holder’s proposal to give
the a Referendum implied retrospective powers as to make something INTRA VIRES declares to
be ULTRA VIRES was not accepted!
Mr. GLYNN.-The Federal Parliament can affect the prerogative, but only within the limits prescribed by
this Act.
And
Mr. SYMON.-Do you think acquiescence would make a law if the law passed by the Commonwealth
Parliament was ultra vires?
Mr. GORDON.-It would until the law was impugned. If the state did not impugn that law it would remain in
force. It is a law, and it could be allowed to be valid by the force of acquiescence. And here is another point.
The proposal which I am supporting, to some extent keeps a remnant of parliamentary sovereignty over the
strict interpretation of the courts.
Mr. FRASER.-That is too abstruse for laymen altogether.
Mr. GORDON.-Well, I think not. I am sure that if the honorable member applies his mind to the subject he
will see it is not abstruse. If a statute of either the Federal or the states Parliament be taken into court the court
is bound to give an interpretation according to the strict hyper-refinements of the law. It may be a good law
passed by "the sovereign will of the people," although that latter phrase is a common one which I do not care
much about. The court may say-"It is a good law, but as it technically infringes on the Constitution we will
have to wipe it out." As I have said, the proposal I support retains some remnant of parliamentary
sovereignty, leaving it to the will of Parliament on either side to attack each other's laws.
And
Mr. HOLDER (South Australia).-I beg to move-
That the following new clause stand, part of the Bill:-In the event of any law passed by the Federal
Parliament being declared by any decision of the High Court to be ultra vires of this Constitution the
Executive may, upon the adoption by absolute majorities in both Houses of the Legislature, within six months
after the decision of the High Court, of [start page 1718] resolution thereto directing, refer the law to the
electors under section 121, and if approved as therein provided the Constitution shall be deemed to have been
enlarged, and the law shall be conclusively deemed to have been intra vires of this Constitution from the
passing thereof.
In the opinion of our constituents, or of a great many of them, one grave objection to this Constitution is that
over everything is the High Court. In the opinion of many, the legal formulae and legal proceedings usurp in
this Constitution the place which the people have occupied in the state Constitutions. If we accept the
Constitution, the final appeal will be, not to the people as represented by the Parliaments, but to the High
Court. I admit freely that as the Constitution is a deed of partnership, it is absolutely necessary to have the
High Court to interpret it, and to see that the various co-partners keep in all that they do within the four comers
of the deed to which they have agreed. At the same time, so rooted is the objection to the position which law
occupies in this Constitution that it will be well if we can meet that objection in any way by placing in the
hands of the people the final appeal, at least in some cases where the final appeal would otherwise be to the
High Court. I do not need to quote from many opinions of others to support what I have said as to the general
view that federation means a great deal of law. I noticed in the daily papers in this city a few days ago a report
of an address by Professor Harrison Moore, the professor of law at the Melbourne University, in which he said
that the legal profession had not had very much to do of late, but that under the Federal Constitution now
under consideration the lawyers would have plenty of work. I do not take that comment as coming from one
who is hostile to federation, but simply regard it as the expression of Professor Harrison Moore's deliberate
opinion that federation under this scheme would mean any amount of work for the lawyers. That is just what
the people do not want, and if we can by any means lessen the law work and place the final decision of some
matters in the hands of the people, from that point of view we shall do well. I can quite conceive that again
and again the Federal Parliament might pass laws involving comparatively small extensions of the
Constitution as we have it before us, but yet involving such amendments as, if the people were appealed to,
they would certainly indorse-amendments not of sufficient weight and importance to be submitted to the
people for their endorsement unless the laws in question were challenged. Therefore, in this amendment I
propose that in the event of any law passed by the Federal Parliament being declared by the court to be ultra
vires, then the Federal Parliament may, by an absolute majority of both Houses of the Legislature, within six
months of the adverse decision of the court, submit the matter to the electors for a referendum in the same way
as provided in the clause dealing with ordinary amendments of the Constitution. We have deliberately decided
previously that the Constitution should only be amended by direct appeal to the electors, in which the vote
shall be counted in two ways. I do not propose to alter that provision in the slightest degree. We have provided
that measures altering the Constitution shall only come into force after they have been carried by absolute
majorities of both Houses. I include the same provision in this clause. Before a matter can be sent to the
referendum, both Houses must by absolute majorities agree thereto.
Mr. HIGGINS.-If so, how do you improve the position by this clause?
Mr. HOLDER.-The honorable member asks me what effect my clause would have. I will suggest a case.
Suppose that it is desired to effect an alteration in the Constitution. The steps necessary for that now would be
to introduce into the Federal Parliament a Bill to amend the Constitution. That Bill must go through [start page
1719] its various stages, be passed by absolute majorities in both Houses, and must then go to a referendum of
the people. But suppose that without any knowledge on the part of the Parliament that that would be the case
the major portion of the Bill was found to be outside the limits of the Constitution, and that it was held to be
ultra vires. Honorable members will begin to see what this clause would achieve in that event. Supposing in
this case the Bill had been passed without any belief by the Federal Parliament that the provisions were ultra
vires of the Constitution, and some months afterwards the courts were petitioned to exercise jurisdiction, and
pronounced the measure ultra vires; if, then, the Constitution had to be amended in the ordinary way, it would
follow that, after the Bill had been passed, after some steps might have been taken under it, after it had been
pronounced ultra vires, the whole matter would have to be begun again at the very beginning. You would have
once more to introduce a measure to Parliament, to pass it through all its stages, to take a vote of the people,
so that all your work has to be done again, whereas under my clause the procedure would be this: The court
pronounces the Bill ultra vires; at once, or at anytime within six months thereafter, the two Houses of the
Legislature are asked to pass addresses, if they consider it important enough, and think it right to do so, and all
the time that would otherwise be spent in passing a new measure through Parliament is saved, because the
carrying of the two resolutions would not take nearly so long as the passing of an Act of Parliament. And then
this provision comes in. If on the referendum the majority of the states and of the people approve-
The Constitution shall be deemed to have been enlarged, and the law shall be conclusively deemed to have
been intra vires of this Constitution from the passing thereof.
Mr. GLYNN.-Is not that putting matter of legislation in the Constitution?
Mr. HOLDER.-No, I do not contemplate for a moment putting any legislative matter in the Constitution.
Mr. GLYNN.-That is what its effect will be.
Mr. HOLDER.-I do not see how that result could come about.
Mr. ISAACS.-This makes it retrospective altogether.
Mr. HOLDER.-I will answer that interjection, which certainly has great weight.

Mr. OCONNOR.-Will the honorable member answer this question: Supposing a law is affirmed by this
process, and afterwards another law involving the same question is proposed, is that also made good, or must
there be a referendum for that?
Mr. HOLDER.-I have two interjections to answer. I will deal first with that of the Attorney-General of
Victoria. In reply to his statement that this makes the law altogether retrospective, I simply say that the
proposal is to make the law retrospective in this sense: That during the interval throughout which it was,
according to the judgment of the court, ultra vires, the decision of the people afterwards could make it intra
vires.
Mr. ISAACS.-That might make persons criminals who were not otherwise criminals. It might not
have been an offence to do a certain thing if the High Court declared the law to be ultra vires, but if that
law was made intra vires from an antecedent date, all the persons who did that thing might be subject to
punishment.
Mr. HOLDER.-I have great respect for the eminent legal authority of the Attorney-General of Victoria, and
he may help me to overcome that difficulty, and attain the advantage I seek to attain. Mr. O'Connor asks me, if
this were adopted, and under a certain referendu m a certain Bill was declared to be intra vires, whether that
position would cover any similar Bill adopted afterwards? My answer to that is this. I wish it [start page 1720]
should do so, that the enlargement of the Constitution should be not merely for the inclusion of the particular
measure which had been passed, but for the inclusion of the particular matter concerning which otherwise that
Bill had been, but for the referendum, ultra vires. I do not profess to be a draftsman, and I gather that the
Drafting Committee have been kind enough to undertake-especially for lay members-to put into proper
phraseology any resolutions which the Convention has by a majority declared to embody principles which
they wish to have included in the Bill. So I am content, if the Convention adopts my proposition as being an
indication of its will, to leave the wording of the clause as it shall appear finally entirely in the hands of the
Drafting Committee, and shall be very glad of any help they can give to suggest a method of covering what
the honorable member has suggested, so that my intentions my be fully met. do feel that in any question where
the point of the law ultra vires is raised, not the High Court but the people ought to be the final appeal-that if I
or any one else is on the other side of this controversy concerning a measure, and I take the ground that it is
ultra vires or that it is not, the final appeal concerning what the Federal Parliament may do ought not to rest
with the High Court, which can simply determine it on the dry question of law, but ought to rest with those
people who, themselves, have the right to say whether or not the Constitution shall be enlarged to take in the
particular question at issue. I do not hesitate to affirm that, if we can place this final appeal in the hands of the
people instead of keeping it in the hands of the High Court, we will have done very much indeed to popularize
this measure, not only in South Australia, but in other colonies. For I do assure honorable members that the
presence of so large a number of lawyers as there are in this Convention has helped to give colour to the
suggestion, which is very widely prevalent, that this Constitution is being made for the lawyers and for the
courts.
Mr. SYMON.-Nonsense!
Mr. GLYNN.-That is pandering to the popular cry.
Mr. BARTON.-I think my honorable friend ought to do his best to dispel any such base slander as that.
Mr. HOLDER.-I can assure my honorable friend that I will do my best to dispel any such base slander as
that. I am not stating a matter in which I express my own thought or my own feeling, but I repeat that in what I
said just now I am expressing the thought and the feeling of a great many persons outside the Convention who
are not so well informed as we are. If we can remove a misapprehension, if we can cure a ground of distrust,
by making the people themselves the final arbiters in their own cause, we shall surely be doing well, and by
doing that we will not be endorsing, but will be going the very best way possible to refuse an indorsement to
that opinion which was dissented from just now.
Sir EDWARD BRADDON.-Why not make them the first arbiters, too?
Mr. SYMON.-Why not make them the High Court at once?

Mr. HOLDER.-I have already shown that the adoption of my clause would save a large amount of time. It
is quite impossible that the people can sit as Judges, because the function of Judges is one thing, and the
function of electors of the Commonwealth is quite another thing. I am not confounding these two. The people
are absolutely incompetent to judge whether a certain law is or is not ultra vires, and I would not dream of
committing that charge to the people, for there are no persons less fit than the general electors-taken all
together on a referendum-of any country to decide whether this or that is true law.
Mr. ISAACS.-You say the people accept the position in law; but they are asked whether they will change
the Constitution.
[start page 1721]
Mr. HOLDER.-That is exactly it. I would never dream of asking the people to reverse a legal decision
arrived at by the High Court. I have been specially careful in the form of the amendment to avoid any such
thing. I do not dream that the High Court will on one day say that a certain Bill is ultra vires, and that the
people shall the day after, or some months after, say the court was wrong. That is not what I suggest. I suggest
that the people should accept the decision of the High Court that the law was ultra vires, but should say it
ought not to be ultra vires-that the Constitution should be enlarged so that such a decision could not be given
again. I do not wish to leave it to the people to say that the decision was wrong, but to leave them to say that
the Constitution should be so enlarged so as to-make such a decision impossible in the future. That is a
different thing from making the people Judges or giving them a judicial position. I really feel very hopeless as
a layman addressing the Convention on a very technical legal point like this. I quite anticipate-and though this
is not a wise thing to say, I do not mind saying it-I quite anticipate defeat before I sit down. At the same time,
I shall not cease to regret defeat if it comes, nor shall I cease to believe that this way out, or some other which
the Drafting Committee could easily suggest, ought to be adopted, so as to avoid the possibility of anybody
outside saying, with any appearance of truth, that this is a lawyer-written Constitution. I want to move the
motion in a slightly different form. I want to leave out the word "High" before "Court" in each case, so that the
word "court" only shall stand. I mean that word to cover not merely the decision of the High Court, but the
decision of the last court of appeal from the High Court, if that appeal be made. With that alteration, I move
the amendment standing in my name.
Mr. BARTON (New South Wales).-I move that progress be reported. I wish to make a statement without
discussing the question. I should like honorable members not to go away when progress is reported, because I
wish to get an order for the printing of the Bill with the amendments so far, and for the Drafting Committee's
amendments to be embodied pro forma in the Bill. In order to do that the standing orders will have to be
suspended, and that requires the attendance of a majority of the House.
Mr. DOBSON (Tasmania).-Would it not be better for the leader of the Convention (Mr. Barton) to answer
the arguments of Mr. Holder, and let a division be taken? If we do not take a division tonight we shall occupy
the whole of tomorrow in discussing this question, which includes that of the High Court, the referendum, and
deadlocks.
Mr. BARTON.-After the opinion some persons outside seem to hold about lawyers, I shall leave the
discussion of this matter to the laymen.
The motion was agreed to.
Progress was then reported.
The standing orders having been suspended,
Mr. ISAACS.-It compels everybody who has obeyed the decision of the higher courts to act, or refrain from
acting. That is a position which none of us would willingly get into, and the retrospective action is wrong.
And
Mr. ISAACS.-

Unless the honorable member is willing to amend his clause in that respect, we should only complicate
matters, and if retrospective operation were given to it we should be lending ourselves to what would be,
quite unintentionally on the part of the honorable member, a gross injustice.
And
The CHAIRMAN.-I would point out that clause 121 says that the provisions [start page 1729] of the
Constitution shall not be altered except in the manner following-that is, by an absolute majority of the
Senate and of the House of Representatives. That seems to me to be conclusive.
Mr. BARTON (New South Wales).-I share in the objections which so many honorable members have
offered to this clause. I certainly hope that I shall not be taken to be speaking simply as a lawyer, and with a
desire that this Constitution should be under the law and lawyers, when I express my objections to it. I agree
with what has been said to the effect-although there is a great weight to be attached to Mr. Holder's argument-
that the clause will operate as an appeal from the High Court to a popular authority-an appeal to an authority
which, at any rate, is not a competent authority on a question of law. As to the question of making a law, the
people ultimately are no doubt the best authority, but on the question as to the reading of a law they can
scarcely be the best authority. There is a difficulty in this clause which also presents itself to me-that is, it
works only one way. Where a law has been decided by the High Court to be ultra vires, by this appeal to
the people it may be decided to be intra vires of the Constitution from the beginning. Take the case of a
law which the High Court decides to be within the Constitution, and which the people have a very strong
opinion is outside the bounds of the Constitution, and that the court has been wrong there. Now, if it is right to
make a clause of this kind operate for the purposes of appeal in the one case, it is equally right to make it
operate for the purposes of appeal in the other.
Mr. ISAACS.-That is not necessary. The people have it in their power to repeal an Act if they do not like it.
Mr. BARTON.-In this case the object is to enable the people to make valid that which under the
Constitution is invalid. If you make the clause work one way, what reason is there for not making it work the
other? With reference to the general effects of the clause, it seems to be clear that where the High Court
has wrongly decided a matter to be intra vires of the Constitution, you provide no sort of way of dealing
with it excepting by repeal.
And
Mr. BARTON.-
All I am arguing is, that the effect of the clause would be the same as if he had done so. There is not much
difference between saying, as is said in this clause, that when the High Court has decided a matter to be ultra
vires you may remit it to the people, who may determine that it is within the powers of the Constitution, which
would be a reversal in one sense of the decision of the High [start page 1730] Court, and saying boldly, and at
once, that if the High Court declares the law to be ultra vires the people may decide that it is intra vires.
Mr. SYMON.-It is a matter of form.
Mr. BARTON.-Yes, the difference between these two procedures is simply a matter of form. In the clause
the words are used "and the law shall be conclusively deemed to have been intra vires of this Constitution
from the passing thereof." The peculiarity of this part of the clause is very striking, because the words I have
read follow these words-"and if approved as therein provided the Constitution shall be deemed to have been
enlarged." If the Constitution is to have been deemed to have been enlarged for that contingency it is only
because the law was ultra vires. If you carry that further and say that it is intra vires, what do you want with
any enlargement? It is quite inconsistent. It amounts to saying that the Constitution has been enlarged, and that
is only necessary if the law was ultra vires. And yet it is followed by the words-"and the law shall be
conclusively deemed to have been intra vires," which is to decide that the High Court was not right but
wrong.
Mr. KINGSTON.-That is like the passing of a Validating Act.
Mr. BARTON.-No; a Validating Act does not put things in that way, and I say that that is an objection of
more than form. When you say that the Constitution shall have been deemed to have been enlarged, you

decide that the Constitution requires amendment in that particular, but when you say that the law shall be
conclusively deemed, to have been intra vires from the passing thereof, then you decide that the Constitution
does not require amendment. There is very considerable not only ambiguity, but contradiction in the proposal.
What are we asked to authorize the people to do-to decide that the High Court was right? In which case their
decision could only have effect if it operate as an enlargement, or to decide that the High Court is wrong, in
which case the Constitution is sufficient from the beginning. We ought to know which road we are to take
before we vote on the clause. It seems tome that the objection there is a strong one, and that it requires some
answer. I shall not now repeat the arguments adduced by other honorable members against the clause. That is
unnecessary. But I do say that I have not been at all convinced that it is our duty to adopt the clause.
Mr. ISAACS.-There is one additional difficulty, which my honorable friend (Dr. Quick) has suggested. The
Constitution would be deemed to be enlarged by the passing of a law, but if you wanted to alter or amend it
you could not do so.
Mr. HOLDER.-That is the point Mr. O'Connor mentioned last night.
Mr. BARTON.-That is to say that, the law having been passed, and the Constitution having been
enlarged, the Constitution has been amended.
Mr. ISAACS.-That is all. You could not alter a word of it.
Mr. BARTON.-No, you would have to take the question of whether the Constitution was really amended or
enlarged; but the decision might mean that the Constitution did not require enlargement at all.
And
Sir EDWARD BRADDON.-Does the honorable member think that if an appeal were made to the people to
upset the judgment of the Supreme Court, the case could be so clearly put before the electors that they would
be able to give an intelligent verdict upon it?
Mr. HOLDER.-I should not dream for an instant of asking the people to consider, much less to either
confirm or reverse, any decision of any competent court, because I do not think that they would be competent
to pronounce an opinion in regard to such a matter. But I would allow the people to say-"The Supreme Court
is right, and to cure the defect in the Constitution which has been sprung upon us we want to see it enlarged,
so that another similar decision will be impossible." I do not propose to ask the people to adjudicate upon the
decisions of the Supreme Court, but I wish to give them power to enlarge the Constitution in accordance with
the decision of the Supreme Court.
Mr. Holder's proposed new clause 121A, was, by leave, withdrawn.
Legislation can be ULTRA VIRES in regard of certain persons while INTRA VIRES in regard
of others. Hence, one should be careful not to confuse matters.

Mr. WISE (New South Wales).-
He lays down in express terms the principle which Judge Shipman used as the basis of his judgment in the
case I cited yesterday from 22 Blatchford, 131, that is to say, if a state passes a law the effect of which is to
injure the territory or property of persons outside the state-that may not be the intention, but if the direct effect
is to inflict injury upon the territory or property of citizens in another state-then that law, although in so far as
it only affects citizens within the state that passes it, it is intra vires of the Constitution, it becomes ultra vires
in so far as it inflicts injury on the inhabitants of another state. That, I believe, was the intention, although I
feel some diffidence in insisting upon it. This was the view which formed the basis of the judgment of Mr.
Justice Shipman.
Therefore legislative provisions are ULTRA VIRES for so far it trespasses upon the
constitutional limitations of legislative powers.

Also, while in the above it was referred to about the High Court of Australia declaring something
to be ULTRA VIRES, and this was in the HCA 27 of 1999 Wakim case regarding the purported
Cross Vesting Act, this was no more then but an official declaration but the parties were before
the Courts already and if the Cross Vesting Act was to be deemed only INTRA VIRES from
when the High Court of Australia made its declaration then it would have been to little avail for
the party seeking this declaration. Clearly, it was ULTRA VIRES from onset.

Mr. GORDON.-
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.
Quick & Garran's "Annotated Constitution of the Commonwealth of Australia" more accurately
and more meaningfully says that;
"A law in excess of the authority conferred by the Constitution is no law; it is wholly void and
inoperative; it confers no rights, it imposes no duties; it affords no protection.".
Therefore, once a person makes a constitutional based objection then that is the end of it.
* So, I understand that it is like you telling a police officer not being allowed to enter your
property, then from that moment he lacks any legal powers to do so?
**#** That is right. When a police officer seeks to enter your property without lawful authority,
meaning without consent or proper authority in law, because you objected against the police
officer entering your property, then from that moment he has no right to enter. It is not for you
then to get first a Court order. It is for the police officer to get lawful authority, by court order or
otherwise, to still being able to enter your property. And this is how the Constitution operates. It
is the property of the people and the Police, Government, etc, would be trespassing if they try to
invade your constitutional rights! So, when you object that is the end of it.
This is what I made known about the Australian Electoral Commission, when it wanted to force
ahead with the writs, which I had made clear were defective there was no constitutional validity in
the election without them first obtaining a Court order otherwise.
Sure, I could seek a Court order myself, which in fact I did but prevented to have the matter heard
and determined upon its MERITS, but I did not need at all to do so in the first place. It was for
the Australian electoral commission to obtain a judicial decision that the writs were INTRA
VIRES, this it never did and as such the writs remained to be ULTRA VIRES.
* BUT, IF THE WRITS WERE DEFECTIVE, SAY, BECAUSE THEY DIDN’T COMPLY
WITH LEGAL PROVISIONS THEN ISN’T THAT A LEGAL ISSUE NOT NECESSARILY
BEING A CONSTITUTIONAL ISSUE?
**#** It is a constitutional issue for so far it did related to constitutional provisions. For example,
Section 9 of the Constitution allows for the States to set time and places and as such where writs
were issued in breach of State Senate elections legal provisions then it was unconstitutional. And,
where the writs were issued by the Governor-General in breach of Section 32 of the Constitution,
in that the writs were issued on 8 October 2001 even so the Proclamation was not published until
at the earliest on 9 October 2001 in Canberra and as late as 22 October 2001 in Hobart then on
that also they were unconstitutional.
* I understand what you are meaning. The writs could be defective and for this also
unconstitutional. The writs could be defective but not necessarily unconstitutional. Is that it?
**#** You are on the right track with that. Lets go to the next Chapter.

Chapter 008 - p9 - Ultra Vires V Intra Vires

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Chapter 008 ULTRA VIRES v INTRA VIRES

**#** INSPECTOR-RIKATI®, when something is subject to a constitutional based objection

* Isn’t that a disaster if everything became illegal?

* Would it not then be better to leave matters as they are?

**#** You mean leave it unconstitutional?

* No, not that but if there is a certain passage of time….

* I get your point.

Page 1 of Chapter 008 INSPECTOR-RIKATI® on IR WorkChoices legislation Page 1

Sixteenth American Jurisprudence

Hansard 1-3-1898 Constitution Convention Debates

Mr. SYMON.-It is not a law if it is ultra vires.

Hansard 1-3-1898 Constitution Convention Debates

Mr. FRASER.-That is too abstruse for laymen altogether.

Mr. HOLDER (South Australia).-I beg to move-

Mr. GLYNN.-Is not that putting matter of legislation in the Constitution?

Mr. GLYNN.-That is what its effect will be.

Mr. ISAACS.-This makes it retrospective altogether.

Page 4 of Chapter 008 INSPECTOR-RIKATI® on IR WorkChoices legislation Page 4

Mr. GLYNN.-That is pandering to the popular cry.

Mr. SYMON.-Why not make them the High Court at once?

Page 5 of Chapter 008 INSPECTOR-RIKATI® on IR WorkChoices legislation Page 5

[start page 1721]

The motion was agreed to.

Progress was then reported.

The standing orders having been suspended,

Hansard 2-3-1898 Constitution Convention Debates

Page 6 of Chapter 008 INSPECTOR-RIKATI® on IR WorkChoices legislation Page 6

Mr. SYMON.-It is a matter of form.

Mr. KINGSTON.-That is like the passing of a Validating Act.

Page 7 of Chapter 008 INSPECTOR-RIKATI® on IR WorkChoices legislation Page 7

Mr. HOLDER.-That is the point Mr. O'Connor mentioned last night.

Mr. ISAACS.-That is all. You could not alter a word of it.

Mr. Holder's proposed new clause 121A, was, by leave, withdrawn.

Hansard 28-1-1898 Constitution Convention Debates

Page 8 of Chapter 008 INSPECTOR-RIKATI® on IR WorkChoices legislation Page 8

Hansard 1-3-1898 Constitution Convention Debates

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# INSPECTOR-RIKATI®, when something is subject to a constitutional based objection

# You mean leave it unconstitutional?