Professional Documents
Culture Documents
instructed the Jury to return a verdict of NO GUILTY, this at the conclusion of the
prosecutors case, where we had filed a NO CASE TO ANSWER, way back in 2006!
**#** INSPECTOR-RIKATI®, actually, what I am trying to expose is what I view is one of the
dumbest conclusions I ever came across in a reason of judgment, and the Reader has to make up
their own kind if this was a judge dealing with LEGAL FACTS or LEGAL FICTION.
.
I WILL QUOTE PARTS OF PREVIOUS PUBLISHED BOOKS WE ALREADY HAVE
CANVASSED SOME OF THE MATTERS.
.
The issue is that Wood J in the reason of judgment attacked the UNREPRESENTED Defendant in
what I consider an extraordinary disgraceful manner. As the framers of the Constitution made
clear, once a person claims a legislation to be ULTRA VIRES then it remains so unless the Courts
overrule it. Now, not some ruling because a judge fancy some own perception based on LEGAL
FICTION but a JUDICIAL RULING on LEGAL FACTS.
.
The Commonwealth of Australia is acting on behalf of the states and therefore exercises the powers
of the Queen in right of the State of Victoria as much as it does for the Queen in her right of the
State of NSW, etc. The Commonwealth of Australia does not exist on its own without the states as
its powers is derived from the former Colonies (now States) The “Queen of Australia” is a “LEGAL
NONSENSE” as it portrays a Queen without a country as the Commonwealth of Australia is not
some INDEPENDENT nation and cannot become one under the Constitution.
And, as shown below no person can become a lawyer without citizenship and so neither then can
become a judge!
Then again, “citizenship” being a political position and not being a nationality as the
unconstitutional “Australian Citizenship Act 1948” purports.
.
Then again, as I understood it from the reason of judgment Wood J never even realised that the 15
November ADDRESS TO THE COURT with the CD contained the about 50 submissions and
further supportive material and then he had the gall, so to say, to verbosely attack the
UNREPRESENTED Defendant where she had done no wrong, and justifiable understood to have
her case railroaded, where the judge didn’t even bother to set out what she had presented as
submissions versus the failure of the Crown to set out if it agreed or not, and if not why not. A
judge must be and so be seen to be impartial and not somehow conduct the case for the Crown, in
particular not where the issue of ABN connecting the Court with the Crown was an implied bias
and no business can validly adjudicate.
What indeed is the use of a party setting out in an elaborate manner submissions backed up with
extensive researched material if in the end they judge claimed to have read all relevant material but
never appeared to me having in fact done so and then go off like anything making known in a
public statements, as a REASON OF JUDGMENT is to severely criticise the UNREPRESENTED
Defendant, and excusing the Crown. To me this was bullying a UNREPRESENTED Defendant
without justified cause. I will below set out further matters but it doesn’t cover everything as that
would take reams of paperwork. However, what ought to be clear is that the Senate Represent the
States and therefore does not act for the Commonwealth as such but is obligated to vote for and on
behalf of the states which the Commonwealth represents in matters for which it has been provided
legislative powers, and “citizenship” is not one of them.
.
Page 1 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 1
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
As I have extensive set out below also;
Hansard 10-3-1891 Constitution Convention Debates
QUOTE
Dr. COCKBURN: There have been only four amendments in this century. The hon. member,
Mr. Inglis Clark, is a good authority on America, and I am sure he will agree with me that out of
sixteen amendments only four have been agreed to in this century. All the other amendments which
have been made were really amend- [start page 198] ments which were indicated almost at the very
framing of the constitution, and they may be said to be amendments which were embodied in the
constitution at the first start. The very element, the very essence, of federation is rigidity, and it is
no use expecting that under a rigid and written constitution we can still preserve those advantages
which we have reaped under an elastic constitution. All our experience hitherto has been under the
condition of parliamentary sovereignty. Parliament has been the supreme body. But when we
embark on federation we throw parliamentary sovereignty overboard. Parliament is no
longer supreme. Our parliaments at present are not only legislative, but constituent bodies.
They have not only the power of legislation, but the power of amending their constitutions.
That must disappear at once on the abolition of parliamentary sovereignty. No parliament
under a federation can be a constituent body; it will cease to have the power of changing its
constitution at its own will.
.
As such, Section 16 of the Victorian Constitution Act 1975 is ULTRA VIRES, because the
Victorian Constitution Act 1975 itself was not approved by a State Referendum, and this it seems
Wood J of the County Court of Victoria hasn’t got a clue about, and so relies upon some section of
an ULTRA VIRES legislation!
.
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;
Page 2 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 2
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
"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.".
Again;
and it leaves open the whole judicial power once the question of ultra vires is raised
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.
.
The following is the same regarding State legislation as if in relation to federal legislation where it
is in breach of constitutional provisions;
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. 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.
END QUOTE
.
QUOTE
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.
END QUOTE
.
Page 3 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 3
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
QUOTE
Mr. ISAACS.-You say the people accept the position in law; but they are asked whether they will change the
Constitution.
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.
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
Page 4 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 4
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
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. 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. 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.
Page 5 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 5
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
Mr. BARTON.-That is to say that, the law having been passed, and the Constitution having been
enlarged, the Constitution has been amended.
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.
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.
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.
Page 6 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 6
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
END QUOTE
Page 7 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 7
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
My views in this regard are expressed below and I invite you to respond to them so I may in future
publish it also in a forthcoming book, as to avoid any complaint that I have not provided this
opportunity to you on behalf of His Honour.
.
I may state that already in my email of 7-2-2008 to Heather.Anderson@justice.vic.gov.au I
expressed my concerns even so then not even having read the Reason of Judgment. His Honour's
own comments appear to underline that Ms Van Rooy was still on about the issue of non-
compliance by the Crown to the 15 November 2008 orders, which His Honour appears to accept
occurred, where His Honour had somehow gone over to the OBJECTION TO JURISDICTION
matter without informing the UNREPRESENTED Defendant Ms van Rooy he actually had done
so.
.
Indeed where His Honour indicates willing to proceed with a trial regardless of any appeal, and you
already having indicated, as I understand it to be, that an Appeal does not operate as a stay of
proceedings, then I am extremely concerned how any UNREPRESENTED Defendant, not just Ms
van Rooy, could possible obtain a fair and proper trial if a judge has this kind of conduct?
.
Judicial officers do need to consider the submissions of both parties and then do end with a
conclusion that one of the parties may dislike and this is part of the legal process and itself is not an
issue that one can criticise a judicial officer for, however, when a Reason of Judgment is so, as I
view, defective. ill conceived, miss conceived, etc and display a lack of understanding/consideration
to the issues that were before the Court then I view a party so deprived on a proper Reason of
Judgment may be justified to have concluded his/her case was, so to say, railroaded.
.
I am expressing my personal views and if Ms van Rooy does or does not accept those views as
being so perceived also by her is another matter. However, I do view it is essential that I provide
His Honour, through his Associate, an opportunity to respond, even if in the end no response will be
forthcoming.
.
A publication of the Book would obviously after any proceedings that are currently before the Court
regarding the matters to which the Reason of Judgement are relating to are completed or
permanently stayed as to avoid any conflict with the case and Ms van Rooy;’s rights while the case
is actually being litigated.
.
A copy of this email will also be forwarded to the Crown, and it too is invited to respond so its
response can be published.
.
I now express my views about the judgment
QUOTE
Some, but not all of the Grounds of appeal (albeit will be set out in a more appropriate format)
regarding the Wood’s 6-2-2008 orders indicating that a judge, so to say, fresh to the case
appears to be bias and failed to understand and comprehend this complex case and so
underlining that unlikely any other judge may likely do so having far less time to read all
material as His Honour Wood claimed to have done are; That His Honour Wood by way of 6-2-
2008 Reasons of Judgment appeared to be judicial bias, failed to appreciate dealing with a
unrepresented Defendant, failed to follow proper procedures to deal with matters, misused his
position to dismiss the OBJECTION TO JURISDICTION even so His Honour himself accepted
a failure by the Crown to comply with the 15 November 2006 orders of Gullaci J (and thereby
failing to prove jurisdiction), and other matters which underlines that His Honour Wood despite
claiming (on 13-2-2008) having spend the afternoon, the evening and the morning on reading
the material failed totally to understand, comprehend and so to judicially consider the relevant
Page 8 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 8
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
issues and each element of the OBJECTION OF JURISDICTION the Defendant had raised,
failed to invoke federal jurisdiction and as such failed to appropriately dismiss the OBJECTION
TO JURISDICTION INVOLVING FEDERAL ISSUES, FAILING TO DISMISS THE Form
78B NOTICE OF CONSTITUTIONAL MATTERS by which His Honour purported to have
dismissed the Defendants case of non compliance by the crown as well as the OBJECTION OF
JURISDICTION, this even so His Honour actually never did so, and neither had specifically
indicated to the unrepresented Defendant that His Honour no longer was dealing with the issue
of compliance or non-compliance of the Crown with the 15 November 2006 orders of Gullaci J
and had moved on to the OBJECTION TO JURISDICTION, and so denied the
UNREPRESENTED Defendant any proper opportunity to address the issue of the OBJECTION
TO JURISDICTION. His Honour himself on 13 February 2008 (after the judgment) indicated
the issue of what may be an unfair trial therefore was a judicial officer who appeared to be
aware that the Appeal Courts had been very critical upon judges failing to provide appropriate
assistance to an UNREPRESENTED Defendant to ensure that this UNREPRESENTED
Defendant was aware as to what His Honour was dealing with. That it was not for His Honour
Wood to rob the UNREPRESENTED Defendant having the benefits of the 15 November 2006
orders of Gullaci J, that the Crown was bound by the orders. Where then His Honour himself
concluded that the Crown failed to comply with these 15 November 2006 orders then it was not
for His Honour to assume there was JURISDICTION where the Crown having the onus to
prove this by seeking to defeat each and every element of the OBJECTION TO
JURISDICTION and the unchallenged Section 78B of the NOTICE OF CONSTITUTIONAL
MATTERS had failed to do so. His Honour referring to matters in a totally different
construction then the UNREPRESENTED Defendant so painfully had carefully set out in her
material as to try to get even ordinary people not skilled in legal matters to
understand/comprehend what the real issues were about underlines that His Honour assumption
that the Crown would not have assisted even if they had complied with the 15 November 2006
orders of Gullaci J was not only an ill conceived and miss conceived argument as where the
UNREPRESENTED Defendant maintained to claim the benefits of the Orders His Honour
Wood has no judicial powers to rob her of those benefits but also that His Honour excused the
non-compliance because His Honour himself failed to understand and comprehend what was
applicable. Indeed, if the Crown had set out matters it may very well have avoided this gross
miscarriage of justice, as then His Honour could have had precisely the kind of presentation
before him that His Honour Gullaci J all along intended there would be and so ordered on 15
November 2006. A Clear example is the misconception about the Court charging GST, that His
Honour claimed was not applicable. The UNREPRESENTED Defendant had not made such a
submission at all, rather had raised the issue of the GST as being a Federal legislation that
resulted in Courts being ABN/CAN registered and by this causing the Courts to engage in a
business structure shared with others, such as the Department of Justice (including the Office of
Public Prosecutions, a.k.a OPP/DPP) the Prostitution Control Commission, etc, and that this
caused the Court to be or implied to be bias towards the Crown as well ads causing the Court to
be a business entity, which cannot adjudicate as a Court of Law. The State of Victoria being a
registered business entity in the USA sharing the same ABN/CAN number with the Court
thereby implicatively passed this status by this also on to the Court. His Honour indicating that
the Section 78B was “misconceived” and had stated so already during the hearing, before even
having read the material and as such was bias or implied bias and also by this proved that His
Honour failed to be open minded as to read the material in a manner in particular where it deals
with an UNREPRESENTED Defendant presenting a case by written submissions, that His
Honour will deal with issues without a prejudged mind. That his Honour failing to
understand/comprehend the implication of federal issues and as such failing to
understand/comprehend that only by invoking federal jurisdiction His Honour could effectively
dismiss the OBJECTION TO JURISDICTION and the unchallenged Form 78B NOTICE OF
Page 9 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 9
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
CONSTITUTIONAL MATTERS, then His Honour albeit pretending that the OBJECTION TO
JURISDICTION did fail never for this effectively did so as a State Court that fails to invoke
federal jurisdiction cannot dispose of a federal matter. His Honour’s error to disregard the
application of federal issues, and to rely upon Section 16 of the Victorian Constitution even so
the UNREPRESENTED Defendant had in her WRITTEN SUBMISSIONS extensively disputed
the validity of the Victorian Constitution Act 1975 which contained the section 16 His Honour
relied upon then it was His Honour who clearly grossly erred in law. That albeit His Honour did
seek to rely upon Authorities ,in regard of the extend of the application of section 16 of the
Victorian Constitution act 1975, this was irrelevant as if the Parliament of Victoria in the first
place lacked the legislative powers, as the UNREPRESENTED Defendant had maintained to
amend the Colonies original Constitution since the 1901 Federation, then the whole of the
legislation is in question and His Honour therefore was bound to address the issue of the
validity of the Victorian Constitution Act 1975, as challenged by the UNREPRESENTED
Defendant, and not merely assume it was nevertheless a valid enactment. Where the validity of
the Victorian Constitution Act 1901 has its origin in what the Framers of the Constitution
(Commonwealth of Australia Act 1901 (UK)) made clear and so extensively canvassed by the
UNREPRESENTED Defendant, that the Colonial Parliament by becoming State Parliament no
longer had the powers to amend their own constitutions as they changed from sovereign
Parliament to constitutional Parliament, then while His Honour may not appreciate this
extensive set out by the UNREPRESENTED Defendant it never should excuse for a judge then
to ignore these relevant issues. Regardless if the Defendant is represented or
UNREPRESENTED, it did not excuse the Defendant from compliance with the 15 November
2006 orders of Gullaci J and the UNREPRESENTED Defendant clearly was recognised by His
Honour Wood J to have complied with these orders., and as such the UNREPRESENTED
Defendant should not then be robbed of the benefits of the orders. While His Honour in his
Reason of Judgment relied upon Authorities His Honour seemed to fail to understand that the
UNREPRESENTED Defendant in her WRITTEN SUBMISSION had made clear that she relied
upon her Attorney Mr. G. H. Schorel-Hlavka and his assistance in the case and had raised issues
no Court ever before had canvassed. Hence, it was therefore highly inappropriate for His
Honour to rely upon Authorities which had never considered the details that now were before
His Honour. No matter how cumbersome it may have been to His Honour to deal with each and
every element of the OBJECTION TO JURISDICTION which also included a CD presentation
of details/information and Authorities it was essential and an onus upon His Honour to reflect in
the Reason of Judgment that His Honour had appropriately considered each and every element
of the OBJECTION OF JURISDICTION as well as the Section 78B NOTICE OF
CONSTITUTIONAL MATTERS in an appropriate manner, showing to set out the argument of
each element put by the UNREPRESENTED Defendant in her WRITTTEN SUBMISSIONS
and that, if any, put by the Crown in its submissions. His Honour arguments about the
citizenship issue also underlined that His Honour never understood that the Victorian Supreme
Court, as the UNREPRESENTED Defendant referred to in her WRITTEN SUBMISSIONS
itself had made clear that the oath was relevant, etc, and as such citizenship was relevant to the
validity of an appointment of a person to be a lawyer as admitted to the Supreme Court of
Victoria Bar, and failing this a judge could not be validly appointed if the judge in question was
not appropriately admitted to the Victorian Supreme Court Bar. The UNREPRESENTED
Defendant having had been directed in October 2006 to provide her arguments as to the Section
78 NOTICE OF CONSTITUTIONAL MATTERS and her OBJECTION TO JURISDICTION
by way of WRITTEN SUBMISSIONS, and the UNREPRESENTED Defendant having done so
and His Honour on 15 November 2006 having , as must be implied by the orders, accepted that
the Crown (OPP) had to overcome the objections and constitutional issues raised by the
UNREPRESENTED Defendant then was entitled that where she had in an elaborate manner set
out matters and canvassed the relevant issues that basically a first year law student ought to be
Page 10 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 10
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
able to understand the issues, after giving sufficient and appropriate time to consider the matters
set out, then His Honour’s ill conceived and miss conceived Reason of Judgment about the
application of federal issues and that federal law was not relevant, etc, may underline that His
Honour regardless of the claimed amount of time having spend reading the WRITTEN
SUBMISSION, albeit fail to refer to the CD content as well as the content of the S78B NOTICE
OF CONSTITUTIONAL MATTERS then could not have been considering in a judicial manner
all relevant details that were before the Court. His Honour wood therefore appeared to have
denied the UNREPRESENTED Defendant a fair and proper trial and if this is eventuating with
a judicial officer who claims to have spend such considerable amount of time reading material
then the UNREPRESENTED Defendant unlikely would have any hope in the world to obtain a
fair and proper trial by another judge either who would not have the inclination and/or the time
to try to gather what the UNREPRESENTED Defendants case really is about.
END QUOTE
.
It ought to be pointed out this is a mere summary and not intended and neither must be perceived to
outline all issues/defects I view there to exist in relation to the reason of Judgment.
I would not mind if you wish to provide a contribution to add perhaps more issues of defects, etc, if
you were to be concerned that I have perhaps overlooked to raise some, albeit again, I have not as
yet addressed the whole of the Reason of Judgment.
.
As a member of the public, I for one could not conceive that the Reason of Judgment adequately
reflects what the case was before the Court, and yet a Reason of Judgment ought to do so as to
indicate to the general public that the Court dispensed JUSTICE. Litigation before the Courts are
after all pursued on behalf of the general public, in the name of the Crown, and so I for one like to
see a competent judgment from judicial officers each time they adjudicate that reflects the issues
that were before the Court and that also displays the Court has shown to have consider the issues
and appropriately disposed of them. This, I regret to say, I do not at all conclude of the 6-2-2008
Reason of Judgment and hence I propose to write about it in a forthcoming book and for this invite
you and others to provide for response that I then can include so my Readers for themselves can
ascertain if my views about the Reason of Judgment may have merits or not and are or are not
themselves misconceived/ill conceived or that indeed the reason of Judgment fails the standard of
being considered a reasonable reflection of what the case was about upon which the Court
adjudicated.
.
For the record, I have already published books in which I have set out issues of concern regarding
High Court of Australia and other Reason of Judgments and as such the 6-2-2008 Reason of
Judgment is not the first and neither would be the last Reason of Judgment that I write and cast my
views about.
.
END QUOTE 15-2-22008 EMAIL
Page 11 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 11
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
R U L I N G
that Ms Van Rooy has orally put this morning and my reasons in
orders.
at a mention hearing.
defence.
reply which she availed herself of. The Crown and the
His Honour set a trial date for 4 February 2008 and the
trial came on before the Chief Judge on that date. The Chief
court and advised that s.78B point raised by the defendant was
decision.
submission.
whatsoever."
495-496:
has enacted the Crimes Act 1958 under which the defendant is
Page 16 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 16
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
apologise. I had thought that I flagged but I haven't got it.
remember?
HIS HONOUR: Perhaps your instructor can find it. I'm trying to
before this court and thus, s.78B of the Judiciary Act, which
is inapplicable.
is contended that invalid state laws, (in this case the Road
that law and that in some way that inspection would effect the
perceived to be such.
part of the defendant that orders for costs which are legal
court.
reasons, but the Crown failed to comply with that. Just how
this court to deal with the count now before it and provides
lawyer, as best I know, nor has she had legal training, and
---
END QUOTE 6-2-2008 REASON OF JUDGMENT OF WOOD J
.
* He did mention the Queens, didn’t he?
.
**#** Having first stated in the proper context as to avoid to mislead or be accused to seek to
mislead a reader lets now go to the what I consider offensive part regarding the Queens;
QUOTE
The defendant's submission in the written submissions is
END QUOTE
.
* Well he does state Her Majesty the Queen in right of the State of Victoria rather then Her Majesty
the Queen in Right of the Commonwealth of Australia, doesn’t he?
.
**#** Well, there is the problem. Queen Elizabeth II is the Queen in Right of the State in that she is
the Queen of the United Kingdom. As such, she is also the Queen in right of every other State,
albeit WA (Western Australia) at the very least has abolished the reference to the Queen. Now laws
enforced by the Commonwealth can only be in the rights of the states.
* Moment, you lost me there. Isn’t the Commonwealth superior to the states?
.
**#** Not at all.
.
* Doesn’t Commonwealth legislation override State legislation?
.
**#** Not at all on a general manner, only if there is a conflict within the powers of the
Commonwealth Parliament legislative powers.
.
* So, only if the Commonwealth legislate it has superior power?
.
**#** Not at all in all cases. If the Commonwealth legislate as to a Crimes Act then it does not
override State Crimes Act legislation.
Page 21 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 21
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
* I am getting confused now. The Commonwealth has superior legislative powers and it has.’t it can
have legislation but it may not at all affect State legislation, would you mind to explain this?
.
**#** Actually, British law is superior to Commonwealth and State legislative powers in certain
circumstances.
.
* Excuse me, would you mind not trying to make a riddle out of it all as I am really starting to get a
headache about this all.
.
**#** Ok, hold onto your seat and better fasten your seat belt as you are going to be in for a ride!
.
* I just want an explanation, not to go for a ride!
.
**#**I just felt like saying this. Anyhow, you be falling of your chair if you hear this all.
Hansard 1-3-1898 Constitution Convention Debates
QUOTE
Sir JOHN DOWNER.-We spend time enough in discussing things here, and when every one is
agreed that this clause is not to be adopted in the form in which it is printed, but is only to be a
power of the Parliament, it is not worth while to discuss the question of whether it is [start page
1665] absolutely necessary to put in the words. Where there is a wide difference of opinion, it
would be safer to do it. I agree with Mr. Barton that there is no power, because sub-section (37) of
clause 52 reads-
Any matters necessary for or incidental to the carrying into execution of the foregoing powers, or
of any other powers vested by this Constitution in the Parliament or Executive Government of the
Commonwealth, or in any department or officer thereof.
I venture to say that these are not necessary or incidental to the execution of any powers. The
Commonwealth will come into existence under this Constitution plus English law, one of
whose principles is that the Queen can do no wrong. That is the foundation on which the
Constitution is established. Then, how can you so interpret sub-section (37) as to say that,
incidental to the carrying out of the Constitution, the Parliament which is established on the basis
that the Queen can do no wrong, may provide that the Queen can do wrong?
END QUOTE
Again
The Commonwealth will come into existence under this Constitution plus English law,
one of whose principles is that the Queen can do no wrong. That is the foundation on
which the Constitution is established.
* Moment, the High Court of Australia in Sue v Hill made clear that the Commonwealth of
Australia is independent, didn’t is?
.
**#** Again:
QUOTE
.That is the foundation on which the Constitution is established.
END QUOTE
As such, nothing the States and the Commonwealth could have done to alter this and the High
Court of Australia lacks any constitutional powers to amend the Constitution by any judgment. It’s
only power is to adjudicate within constitutional confinements.
.
Page 22 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 22
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
* Ok, You are saying that therefore the Commonwealth of Australia cannot be “INDEPENDENT”
and neither can be without British law because of the above statement…
.
**#** I did not state because of the above statement as there was a lot more to it. British maritime
law maintains constitutionally at least to override Commonwealth maritime laws. British treaties
remain to be superior, but it all provided it does not interfere with constitutional provisions enacted
in the Commonwealth of Australia Constitution Act 1900 (UK).
For example the British Parliament endorsed the European Union constitution.
The Commonwealth of Australia Constitution Act 1900 (UK) is a British Act and as such
considering the decision of Aggregate Industries UK Ltd., R (on the application of) v English
Nature and & Anor [2002] EWHC 908 (Admin) (24th April, 2002) and Judgments - Mark
(Respondent) v. Mark (Appellant), OPINIONS, OF THE LORDS OF APPEAL for judgment IN
THE CAUSE, SESSION 2005-06 [2005] UKHL 42 on appeal from: [2003] EWCA Civ 168
It appears that the The European Convention for the protection of Human Rights and
Fundamental Freedoms (“the ECHR”) albeit not overriding constitutional law, is complimentary
to British (constitution) law, as the Commonwealth of Australia Constitution Act 1900 (UK) is.
.
* So the European Union Human Rights provisions apply to the Commonwealth of Australia,, is
that what you are claiming?
.
**#** Only for so far it does not conflict with the federal constitution. For example we are racist
because the Colonies (now known as States) voted in referendums to embrace Section 51(xxvi) of
the Constitution to discriminate upon races. As such the European Human Rights provisions are not
overriding this. Neither so can the United Nations Charter. Actually we cannot be a “nation:” as
such as Victoria is still a dominion under the British Crown.
.
* Yes, pull the other leg will you. Why on earth can we not be a member of the UN when the
Commonwealth of Australia was one of the founding members?
.
**#** Well again we have to refer back to the Hansard;
Hansard 2-3-1898 Constitution Convention Debates
QUOTE
Mr. SYMON (South Australia).-I beg to move-
That the words "The Commonwealth of" (line 10) be struck out.[start page 1747] That will leave
the clause to provide simply that the colonies shall be united in a Federal Constitution, under the
name of "Australia." Now, my honorable friend (Dr. Cockburn), earlier in the present session,
moved in this direction in connexion with a later clause, but it was pointed out at that time that that
clause did not deal specifically with the name, that the clause now under reconsideration dealt with
that subject, and that the amendment he then proposed could be more properly dealt with under this
clause. Now, honorable members will recollect that in Adelaide I moved in the same direction. On
that occasion there was a very short debate, and not wishing to press the matter exhaustively then,
but rather to leave it until after the Bill had been before the public and the Legislature, pursuant to
the Enabling Act, I did not on that occasion press the matter to a division; but I wish to tell
honorable members that I intend to press the question to a division on this occasion. I only desire to
utter one or two sentences, because it seems to me the matter is so plain that any one who will
consider it for a moment will agree with my view, and that it will be unnecessary for me to occupy
a long time in commending it, as I do, to the acceptance of honorable members. I wish to clear away
the misconception in the first place that I have any objection whatever to the word
"Commonwealth," or to the use of the word "Commonwealth," in this Bill. I have no objection to
that where it is confined to the expression of the political Union. In the preamble honorable
Page 23 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 23
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
members will find that what we desire to do is to unite in one indissoluble Federal Commonwealth-
that is the political Union-"under the Crown of the United Kingdom of Great Britain and
Ireland, and under the Constitution hereby established." Honorable members will therefore see that
the application of the word Commonwealth is to the political Union which is sought to be
established. It is not intended there to have any relation whatever to the name of the country or
nation which we are going to create under that Union. The second part of the preamble goes on to
say that it is expedient to make provision for the admission of other colonies into the
Commonwealth. That is, for admission into this political Union, which is not a republic, which
is not to be called a dominion, kingdom, or empire, but is to be a Union by the name of
"Commonwealth," and I do not propose to interfere with that in the slightest degree. The first
clause says-This Act maybe cited as the Commonwealth of Australia Constitution Act." I assent to
all that. Then comes clause 3, which says it shall be lawful for the Queen, by and with the advice of
Her Majesty's Most Honorable Privy Council, to declare by proclamation that, on and after a day
therein appointed, not being later than one year after the passing of this Act, the people of the
colonies enumerated shall be united in a Federal Constitution under the name of-I say it ought to be
"of Australia." Why do we want to put in "the Commonwealth of Australia"? We are there by our
Constitution giving the name to our country, and, to the united people who are to be established as a
nation under the Constitution. By what name, I would like to ask honorable members, will they call
this Federal Union? It will be called by the name Australia, whether we like it or not.
END QUOTE
Again;
QUOTE
That is, for admission into this political Union, which is not a republic, which is not to be
called a dominion, kingdom, or empire, but is to be a Union by the name of
"Commonwealth," and I do not propose to interfere with that in the slightest degree.
END QUOTE
.
Also consider
Hansard 7-3-1898 Constitution Convention Debates
QUOTE
Mr. SYMON (South Australia).-I beg to move-
2. Between February 1991 and February 1997 the appellant was a student at the University of
Tasmania, graduating in May 1995 as Bachelor of Arts with Honours and in May 1997 as
Bachelor of Laws with First Class Honours.
3. Sometime during 1992 or 1993 the appellant made inquiries about becoming an Australian
citizen. He then learned that it would be necessary for him to swear an oath of allegiance to
Her Majesty The Queen. The appellant is, however, a staunch republican and did not then
pursue his application to become an Australian citizen, believing that any oath of allegiance
should be to Australia rather than to the Queen.
4. On 24 January 1994 the procedure for obtaining Australian citizenship changed so that
applicants were no longer required to swear an oath of allegiance to the Queen but were
instead required to make a pledge to Australia. Accordingly, in February 1995, the applicant
became an Australian citizen.
5. In June 1997 the appellant moved to Melbourne where he took up part-time employment as
a para-legal with a Melbourne firm of solicitors. In September 1997 the Commonwealth
Government appointed him one of the 36 non-Parliamentary delegates to the Constitutional
Convention and in February 1998 he duly attended the Convention in Canberra. In March
1998 the appellant entered into articles with a member of the firm of solicitors at which he
Page 27 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 27
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
had been working since June 1997. He has completed all the necessary requirements for
admission to legal practice in this State save for the matter now under consideration.
6. The appellant now seeks to be admitted to practice in Victoria as a legal practitioner. This
proceeding, by originating motion filed 23 February 1999, seeks an order under Rule 14.06
of Chapter II of the Supreme Court Rules to excuse him from taking the oath of allegiance
prescribed under Rule 14.05. These rules provide:-
14.05 (1) A person applying to be admitted to legal practice in Victoria shall take the oath of
allegiance and an oath of office.
(2) The oath of allegiance may be in Form 2-14A and the oath of office may be in Form 2-
14B.
Excuse
14.06 (1) The Court may upon application excuse a person from taking the oath of
allegiance.
(2) The application shall be made by originating motion and heard no later than 30 days
before the first day of the month in which application for admission to legal
practice is to be sought."
7. These rules were passed in furtherance of s.6(1)(c) of the Legal Practice Act 1996. S.6(1)
provides:-
"6. Admission to Legal Practice
(1) The Supreme Court may admit a person to legal practice in Victoria if he or she -
(c) takes the oath, or makes the affirmation, required by the Court."
8. The application was heard by a judge on 1 March 1999. The appellant supported his
application by an affidavit sworn by him on 23 February 1999. The respondent filed no
material regarding the matter but argument was presented on its behalf by counsel at the
hearing of the application.
9. The grounds upon which the appellant sought to be excused were set out in his affidavit and
the relevant portions of the affidavit were summarised, but in some detail, in the reasons for
judgment of the judge delivered on 10 March 1999. In summary, the appellant said he had a
conscientious objection to taking an oath of allegiance to the Queen stemming from his
sincere and genuine belief that to take an oath is a solemn, serious and sincere act, which
should not be undertaken lightly or without full and proper consideration. His conscientious
objection to taking the oath was said to arise from his belief that Australia should adopt a
republican form of government. He said that he was committed to amendment of the
Commonwealth Constitution so as to achieve the republican form of government and was an
advocate for that cause and that his advocacy for an Australian republic would be
compromised by his having made an oath of allegiance to the Queen. The appellant had
Page 28 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 28
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
made a pledge of loyalty to Australia when he became an Australian citizen in February
1995. It was his experience that advocates for an Australian republic who had sworn an oath
to the Queen were accused of hypocrisy. He said that he was genuinely troubled about
swearing an oath of allegiance when Her Majesty has little to do with the practical
governance of Australia. He swore that he was genuinely troubled by having to swear an
oath, the substance of which he did not actually believe and which was inconsistent with his
stated beliefs. There is no suggestion that his Honour did not accept any of the statements
made by the appellant in his affidavit.
10. The judge rejected the application. His Honour's reasons included that, in swearing
allegiance to the Queen, the appellant would be doing no more than swearing allegiance to
the Head of State of the country of which he is now a citizen and, in effect, to Australia. His
Honour said that the fact that the appellant is a dedicated republican was not to the point and
that the swearing of the oath would not change that fact nor prejudice the appellant in that
regard. His Honour also said that it was appropriate that the appellant swear an oath of
allegiance to the Head of State of this country in the same fashion as any other officer of the
Court.
11. The appellant now appeals to this Court. His notice of appeal includes grounds that the
judge erred in refusing his application without regard to the matters put before him in
support of the exercise of his discretion to grant the application; in failing to have any or any
proper regard to various matters in respect of which his Honour should have exercised his
discretion with regard to the grant of the application, matters such as the appellant's
commitment of allegiance upon his formal adoption of Australian citizenship, his
conscientious and reasoned objection to swearing a false oath; the fact that the judge was
invested with a discretion to excuse the appellant from taking the oath; and that the judge
erred in deciding that there was no prejudice to the appellant if he took the oath, or that it
was necessary for the appellant to show prejudice which he would suffer in the consequence
of his swearing the oath.
12. When the matter came on for hearing in this Court, the question was raised whether the
appellant required leave to appeal in that any order refusing the appellant's application was
an order "in an interlocutory application"; see Border Auto Wreckers (Wodonga) Pty Ltd v.
Strathdee [1997] 2 V.R. 49; Supreme Court Act 1986 s.17A(4)(b). The Court decided that it
would defer ruling on this question and that it would hear an application for leave, together
with the appeal itself. I shall deal with the question whether leave is necessary later in these
reasons.
13. The appellant accepts at the outset that the discretion to excuse compliance with the
requirement to take the oath of allegiance is unfettered (Re Miller [1979] V.R. 381 at 383-
384; Nicholls v. Board of Examiners [1986] V.R. 712 at 720) but contends that the
discretion must be exercised, and exercised judicially. So much may be conceded. But in
considering whether there has been an error in the exercise of judicial discretion, the
question is to be approached on the basis that "there is a strong presumption in favour of the
correctness of the decision appealed from, and that the decision should therefore be affirmed
unless the court of appeal is satisfied that it is clearly wrong": Australian Coal and Shale
Employees Federation v. The Commonwealth (1953) 94 C.L.R. 621 at 627; Oldaker v.
Currington [1987] V.R. 712 at 718. This Court cannot substitute its own view merely
because it would have exercised the discretion differently. Furthermore, the application to be
excused from taking the oath of allegiance is not to be treated lightly; Miller at 384.
Page 29 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 29
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
14. Mr Bevan-John for the appellant began by submitting that the requirement in Chapter II of
the Rules that an applicant for admission to legal practice should swear two oaths was
beyond the power of the Court and invalid and the appellant was not required, accordingly,
to take the oath of allegiance. The argument, which I confess I had some difficulty in
understanding, appeared to proceed in the following manner: s.6(1)(c) of the Legal Practice
Act authorised the Supreme Court only to require that an applicant take a single oath;
accordingly, the Rules made by the Court were invalid in that (a) two oaths were required,
and (b) the Court could not exempt a particular applicant from taking one only of those
oaths; to do so, it was submitted, would do violence to the enabling words of s.6(1)(c). In
my view there is nothing in this argument, first because words in the singular ordinarily
include the plural, and secondly because an entitlement in the court to require the taking of
an oath would implicitly include a right to exempt an individual applicant from doing so. In
rejecting this argument, I note that it was not put to the judge at first instance and, indeed, if
it had been correct, there would have been no occasion for the making of this application in
the first place.
15. The first submission of Mr Bevan-John directed to the merits of the decision appealed from
was that the judge's reasons would preclude any exemption from ever being granted, since
the factors relied on would apply to all candidates, certainly to all immigrants, and on this
view the exemptive power would never be applied to an immigrant. I do not agree. It is clear
from the structure of the judge's reasons that his Honour gave careful attention to each of the
grounds asserted by the appellant for seeking exemption, including his conscientious
objection, his having taken the citizenship pledge and the prejudice he said he would face if
he swore an oath of allegiance to the Queen. As Lush, J. Said in Board of Examiners v.
Whalen [1983] 1 V.R. 437 at 442, "No doubt it would be more difficult for an Australian
national with [substantial residential] ties to obtain an exercise of the discretion in his favour
than it would be for a person having a single foreign nationality", but I cannot detect in the
judge's reasons any suggestion that in his view the exemptive power in Rule 14.06 could
never be applied to an immigrant; nor does that conclusion seem to me to follow from
anything in his Honour's reasoning. A part of this submission was that his Honour had not in
fact exercised the discretion under Rule 14.06(1) at all. But it is clear from a reading of His
Honour's reasons that this submission cannot be accepted. I should say that most of the
submissions made on behalf of the appellant in this Court would more properly have been
addressed to a judge first considering whether to exercise the discretion to excuse under
Rule 14.06(1), rather than to an appellate court considering whether the judge at first
instance had erred.
16. Next Mr Bevan-John made a series of submissions the general purport of which was to
diminish the significance of the taking of the oath of allegiance and its position in the Legal
Practice Act 1996. For example, the submission was made that our legal system does not
need an applicant to swear allegiance personally to the Queen, that the oath has no purpose
other than a ceremonial one, and that swearing an oath of allegiance to the Queen is not
required for admission in a number of jurisdictions in Australia and, for that matter, New
Zealand. It was submitted that it is not desirable for people to take oaths declaring the truth
of matters they do not believe in or for a legal system to compel the taking of such oaths.
We were reminded that the requirement to take the oath has changed in recent years to
permit persons in appropriate cases to be excused from taking the oath of allegiance.
17. Although there is substance in a number of these individual submissions, they are, in my
view, not really to the point in this appeal and of little assistance to the appellant since they
Page 30 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 30
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
raise no question of error in the judge's reasons. As Street, C.J. Said in Re Howard [1976] 1
N.S.W.L.R., 641 at 646:-
18. The thrust of these passages remains, I think, relevant, notwithstanding that it is now the
Rules of Court, rather than Parliament itself, which impose the obligation to take the oath of
allegiance, and also that various governments may have in cases such as the adoption of
Australian citizenship substituted a pledge of loyalty to Australia for the oath of allegiance
to the Sovereign.
19. Ms Ryan, who appeared for the Board of Examiners, submitted that a duty of allegiance is
owed to the Sovereign by all those resident within her realm whether or not an oath of
allegiance is taken; Joyce v. DPP [1946] A.C. 347 at 366 and 374; Howard at 645-646; and
Nicholls at 729-730. As the judge put it in paragraph (22) of his reasons, the requirement
that the appellant take an oath of allegiance as a condition of being admitted to practice is
nothing more than a recognition of that duty. The concept of allegiance was discussed, and
the reciprocal nature of the rights and obligations involved was explained, by Ormiston, J. in
Nicholls at 728.
20. Mr Bevan-John next submitted that prejudice is not a strict criterion for this appeal, but that,
if the application is refused, the appellant would effectively be permanently precluded from
being admitted to practice in Victoria. He will, it was submitted, continue as a para-legal
until the oath requirement is changed. The relevant ground in the notice of appeal is
somewhat differently worded, claiming that the judge wrongly found no prejudice to the
appellant, and erred in deciding that the appellant needed to show prejudice to succeed.
21. There is nothing in the reasons for judgment to suggest that the judge held that proof of
prejudice was a prerequisite to the success of the application. A number of cases have
demonstrated that if an appellant can show a real possibility of prejudice or prejudice of a
tangible kind, as a consequence of taking the oath of allegiance, the application to be
excused has stronger prospects of success than if no such prejudice is likely; Miller at 384;
Whalen at 439-440, 441-442 and 443; Re Macgregor [1983] 1 V.R. 427, at 428, and
Nicholls per Ormiston, J.at 730. In Macgregor, Gobbo, J. said at 429 that:-
"The notion of prejudice is one normally related to material matters and not
personal matters that do not involve detriment. In this question of prejudice I
Page 31 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 31
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
would not, however, see mere inconvenience caused by a diligent
bureaucracy but not ultimately leading to loss of any real rights as sufficient
to constitute prejudice. Nor would I see it as sustaining an exercise of
discretion if the ambit of that discretion is unlimited. It would not seem an
appropriate ground for exercise of discretion confined by the usual
considerations of prejudice, or, on the wider view, to have regard to the
inconvenience of possible disputation if the evidence did not also satisfy the
Court that the applicant would ultimately be deprived of a meaningful right
or privilege."
22. Ms Ryan submitted in this Court that here the prejudice relied on by the appellant is largely
embarrassment and a perceived conflict between his republican sentiments and the oath he is
required to take as a matter of law in this State if he wishes to be admitted. Ms Ryan pointed
to the fact that, unlike the applicants in other reported cases, the appellant does not face the
possibility of losing his nationality of a foreign state by taking such an oath. The submission
continued that the appellant's claim was that he would be prejudiced because if the appeal
were refused he could not be admitted to practice. Ms Ryan submitted that this was the
wrong test, the relevant prejudice being that which the appellant would suffer if he took the
oath, not any prejudice that might result from a conscious choice not to do so. As Ms Ryan
said, the appellant is under no compulsion to take the oath of allegiance. If he chooses not to
do so, and cannot therefore satisfy the conditions for admission in this State, that is the
result of his election. There was, it seemed to me, considerable force in Ms Ryan's
submissions.
23. No suggestion was made that the appellant is not sincere or genuine in the statements he
made in his affidavit. The difficulty with the appellant's submissions on this aspect is, once
again, that they do not lead to the conclusion that any error has been shown in the judge's
reasons. His Honour, in my view, carefully considered the matters put forward in the
appellant's affidavit and was not persuaded by them. Mr Bevan-John's submissions have not
led me to conclude that his Honour failed to take into account any relevant matter, or gave
undue weight to any factor, or otherwise is shown to have erred in his reasoning.
24. Mr Bevan-John's next submissions related to the appellant's personal position. He put it that
the appellant has already publicly and deliberately declared his allegiance to Australia and
that the purpose of his taking the oath has been fulfilled by his pledge upon taking
citizenship. He submitted that it was unfair to use the exemptive power under the Act to
excuse those who do not want to make any commitment of allegiance to Australia at all and
to deny it in respect of one who has already made the solemn pledge of that allegiance when
he formally undertook Australian citizenship. These submissions are, in my view, not only
irrelevant to the substance of this appeal, they ignore the purposes of taking an oath of
allegiance to which reference was made in cases such as Howard and Miller, and also the
proposition stated by Lush, J. In Whalen at 442, which has already been quoted. Mr Bevan-
John also put it that by taking the present Victorian form of the oath the appellant could not
become more loyal than he already is to Australia. He submitted that the appellant was
sincere in his beliefs and acting bona fide in seeking this exemption, that this was a perfect
case for granting exemption since allegiance has already been pledged and the swearing of
the oath served no legitimate purpose. These arguments again do not suggest any error in the
reasoning of the judge; rather, they are an invitation to this Court to exercise afresh on
appeal the discretion already exercised by the judge at first instance, an invitation which this
Court is unable to accept unless error is first shown in the reasoning of the judge. Part of Mr
Bevan-John's submission was that his Honour paid no regard to the particular circumstances
Page 32 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 32
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
of the appellant but, again, the reasons for judgment showed this argument also to be
without substance.
25. Mr Bevan-John's final submission invited the Court to vary the form of oath of allegiance
since the Legal Practice Act merely requires the swearing of an oath as "required by the
Court", and the form of the oath is then simply prescribed by the Rules. Mr Bevan-John
conceded that this Court could only consider and rule on such a submission if error had first
been found in the judge's reasons and I therefore need not consider this question further. In
my view, all of the grounds in the notice of appeal should be rejected.
26. I return to the question whether the appellant requires leave to appeal, that is, whether the
refusal of the application was an order in an interlocutory application. As Gibbs, C.J. Said in
Carr v. Finance Corporation of Australia Ltd [No. 1] (1981) 147 C.L.R. 246 at 248, the
question is "whether the judgment or order appealed from, as made, finally determines the
rights of the parties." Callaway, J.A. In Little v. State of Victoria (unreported) Court of
Appeal, 30 June 1998, said that:-
"This question is to be answered having regard to the legal, rather than
practical, effect of the judgment or order. It is not sufficient that the rights of
the parties with respect to some such matter as discovery or interrogatories
are, or even that a preliminary issue is, decided."
27. As Mr Williams says in his work Civil Procedure, Victoria at para. 64.01.430, the question
whether an order is final or interlocutory cannot always be answered readily and the attempt
to frame a definition which will enable a judgment or order to be recognised as final or
interlocutory by resort to some formula has caused difficulty. In Hall v. Nominal Defendant
(1966) 117 C.L.R. 423 at 443, Windeyer, J. Said that a judgment or order is interlocutory
unless it "finally determine[s] the rights of the parties in a principal cause pending between
them."
28. If there is any principal cause relevant to the present appeal, I should myself have thought
that it was the applicant's application for admission to practice. The application to be
excused from taking the oath of allegiance could not, in my view, sensibly be described as a
principal cause, nor does it finally determine the rights of the parties or create any estoppel
precluding the making of a second application. The appellant could, I think, bring a further
application to be excused from taking the oath (D.A. Christie Pty Ltd v. Baker [1996] 2 V.R.
582), on new material, although, if the new material was available when the first application
was brought, the second would probably be stayed as an abuse of process. If it be said that
this application stands alone, being made before the filing of an application for admission, I
note that an order granting or refusing preliminary discovery (before action is brought)
under Rule 32.03 or 32.05 has been held to be interlocutory; see e.g. Schmidt v. Won [1998]
3 V.R. 435; and an order made on an application to extend time under a limitation statute for
the commencement of a proceeding is interlocutory whether the application is granted or
refused; D.A. Christie Pty Ltd v. Baker.
29. In my view, the order refusing the appellant's application to be excused from taking the oath
of allegiance is interlocutory, and the appellant required leave to appeal.
30. Having regard to the conclusions I have reached as to the merits of the appeal, I propose that
the application for leave to appeal be refused, and the appeal therefore be dismissed as
incompetent.
WINNEKE, P.:
Page 33 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 33
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
31. I agree for the reasons given by Charles, J.A., and subject to what I shall say hereafter, that
the order made by Beach, J. was made in an interlocutory application and that leave to
appeal should be refused because it has not been demonstrated that the exercise of his
Honour's discretion has miscarried or is attended with sufficient doubt to warrant the grant
of leave. Nor, in my view, has it been demonstrated that his Honour's order is productive of
any relevant prejudice to the applicant in the event that it remains undisturbed.
32. The requirement which the Court imposes on those seeking admission to practise as
barristers and solicitors in this State to take an oath or make an affirmation of allegiance
retains a significance which goes beyond the mere academic and the pompous. Young, C.J.
explained its importance in Re Miller [1979] V.R. 381 at 383 in terms of the statutory
recognition given by the Parliament to the oath of allegiance and its administration to
persons carrying out significant functions in this State.
33. To my mind his Honour's comments remain valid, notwithstanding the differences to be
found between the terms of s.6 of the Legal Practice Act 1996 and those which existed in s.5
of the Legal Profession Practice Act 1958. As Street, C.J. said in Re Howard [1976] 1
N.S.W.L.R. 641 at 643, the significance of the oath being administered to those wishing to
practise as barristers and solicitors is its reminder to them that their role will be to serve law
and justice in the State, of which the Sovereign is the fountainhead.
34. It is, therefore, not surprising that the Court, in exercising its role as the ultimate controller
of the profession, imposes as one of the prerequisites for admission to practise a promise of
allegiance and does not lightly entertain applications to exempt persons from that obligation.
Where, as here, exemption was sought on the grounds of a strongly held commitment to a
republican model of government and a fear of compromising conscience and principles if
required to take an oath of allegiance, it is equally, in my view, not surprising that His
Honour exercised his discretion against exemption.
35. Strong, and sincerely held, political beliefs as to the structure and style of government can
be presumed to exist in many, if not most, applicants for admission to practice in this State.
But, as I have endeavoured to point out, the Court's function in admitting applicants to
participate in the administration of justice is not concerned with affirming or denying such
political beliefs or in promoting one style of government to the exclusion of another. If, as
may well happen, a republican model of government is hereafter adopted in this country,
and the law requires a pledge of loyalty to the country and to the maintenance of its laws, it
would to my mind be equally unacceptable to grant exemptions to persons from such a
pledge on grounds that they held sincere beliefs that the appropriate form of government
was a constitutional monarchy.
36. The Court requires its practitioners to be aloof from such matters. I agree with the
respondent's contention that, if an applicant feels compelled to decline to take the oath of
allegiance on the basis of the strength of his or her political beliefs, any prejudice which
flows stems only from a conscious election driven by personal belief and is not the prejudice
of a tangible kind which has, in some cases, founded the exercise of the Court's discretion to
exempt an applicant from the taking of the oath. For these, and the reasons given by Charles,
J.A., I agree that the application should be refused.
37. My agreement with the reasons of Charles, J.A. includes an agreement with his reasons for
rejecting the applicant's submission, not made to the judge below, that s.6(1)(c) of the Legal
Practice Act does not require an applicant for admission to take the oath of allegiance.
BATT, J.A.:
Page 34 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 34
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
38. I agree with both judgments which have been delivered.
WINNEKE P:
39. The formal order of the Court will be that the application for leave to appeal from Beach, J.'s
order is refused.
40. The appeal is dismissed, accordingly, as incompetent.
END QUOTE
.
* Is that going back to the “citizenship” issues?
.
**#** Well Wood J did state
QUOTE
Secondly, that the Australian Citizenship Act 1948 being an act of the Federal Parliament has not
been declared to be valid by the High Court and thus it cannot be said that the judge, that is me, is
an Australian citizen and that the court therefore is unable to try the case. In passing, the law of the
Commonwealth and of the State, for that, matter does not make citizenship a prerequisite for
judicial appointment as best I can ascertain.
END QUOTE
Now, if a person cannot practice law if failing to make an oath of alliance then how on earth can a
person be admitted without “Australian citizenship”
.
* But we already published on 30 September 2003 a book titled INSPECTOR-RIKATI® on
CITIZENSHIP! Surely by know judges would know better where you provided 8 copies to the High
Court of Australia?
.
**#** Well lets consider the following;
Hansard 2-3-1898 Constitution Convention Debates
QUOTE
[start page 1756]
Mr. OCONNOR.-I have said that I do not see that such a trust in the Federal Parliament would
be effective. I sympathize with the honorable member's view, but I think it will be carried out by
some kind of definition of citizenship, and I was pointing out the only aspect in which it appears to
me it might be desirable to have some such definition, and that is, you are creating new rights to
citizens of the Commonwealth as citizens of the Commonwealth in regard to your courts. You
establish courts for the Commonwealth, and every citizen of the Commonwealth is entitled to the
use of those courts.
Mr. HOLDER.-Would it not avoid difficulty to leave the Federal Parliament to define it from
time to time?
Mr. OCONNOR.-That really gives no power whatever. It does not carry out the honorable
member's object, because the power to deal with persons coming from outside, in regard to
Page 35 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 35
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
their being members of the community, is given in the powers to deal with immigration and
aliens. The power to deal with citizens of states is limited by the rights of the states at the present
time, and if you want really to have a definition which gives some right and some entity to a citizen
of the Commonwealth, as different from a citizen of a state, I think you ought to do it in some way
by definition.
END QUOTE
.
QUOTE
Mr. WISE (New South Wales).-As one of those who strenuously denied that there was a
necessity to define federal citizenship, I entertain some doubt, as Mr. O'Connor does, whether this
proposal really meets the difficulty. I feel, as he does, that to confer on the Parliament the power
to deal with federal citizenship does not give them the power to define the citizenship. They
can only act within the limits of the Constitution, and, inasmuch as it might be necessary in defining
the citizenship to trench in some way on the rights of the state, or to limit in some way the
citizenship of the state, or to make certain consequences follow from being citizens of the state, it
might be held that the matter is open to doubt, that any definition passed by virtue of this
proposal would be ultra vires.
END QUOTE
.
QUOTE
Mr. KINGSTON (South Australia).-I shall also support the amendment of Dr. Quick, and I trust
that it will be carried. I cannot conceive that in the adoption of legislation on this subject Parliament
would do aught else than make the definition uniform and of general application. If there was any
necessity for making that clear, the insertion of the words "uniform citizenship of the
Commonwealth" would accomplish that, but I hardly think it is necessary. I am impressed with
the importance of taking power as occasion arises to define what shall constitute citizenship of
the Commonwealth; and the Bill at present is altogether deficient in regard to giving any
power to the Commonwealth Parliament to legislate on this subject. It seems to me it is a very
difficult matter, and one with which we should not attempt to deal here, but rather should refer it to
those who, when necessity arises to adopt some legislation on the subject, will have all the facts
before them, and may reasonably be supposed to be able to make the best provision for the purpose
in connexion with the subject. My honorable friend (Mr. Glynn) referred to the principle which he
said obtained, I think, in Germany, where only native-born Germans, or those who are naturalized
in the empire, are admitted to the privileges of citizenship. I asked in the course of his remarks how
would that apply to citizens of the Commonwealth. It is a very difficult thing to deal with. If you
provide that only those shall be citizens of the Commonwealth who were born in it or have been
naturalized, you will undoubtedly be putting too strict a limitation on citizenship. It would be
simply monstrous that those who are born in England should in any way be subjected to the
slightest disabilities. It is impossible to contemplate the exclusion of natural-born subjects of
this character; but, on the other hand, we must not forget, that there are other native-born
British subjects whom we are far from desiring to see come here in any considerable
numbers. For instance, I may refer to Hong Kong Chinamen. They are born within the realm of
Her Majesty, and are therefore native-born British subjects.
Page 36 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 36
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
think the very best, thing under all the circumstances is to do-what is recommended by Dr. Quick,
and give to the Federal Parliament power to, legislate on this subject as occasion arises. I have no
fear whatever but that they will make wise provisions on the subject-provisions uniform throughout
the Commonwealth-for extending to all British subjects those privileges which they ought to
possess, while at the same time safeguarding the rights of the Commonwealth.
Mr. OCONNOR (New South Wales).-I would like to point out to Dr. Quick that he proposes to
give a power to the Commonwealth to legislate in regard to a matter which is not mentioned from
the beginning to the end of the Constitution. The word "citizen" is not used from beginning to end
in this Constitution, and it is now proposed to give power to legislate regarding citizenship.
Mr. SYMON.-I agree with the honorable member, and I also think it is unlikely that the
Commonwealth will seek to derogate from it, but I will not place a power in the hands of the
Commonwealth which will enable them to derogate from it, and if that is not done it will be merely
a dead letter. Is there any citizen of the Commonwealth who is not already a citizen of the state?
State citizenship is his birthright, and by virtue of it he is entitled to the citizenship of the
Page 37 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 37
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
Commonwealth. When you have immigration, and allow different people to come in who
belong to nations not of the same blood as we are, they become naturalized, and thereby are
entitled to the rights of citizenship.
Sir EDWARD BRADDON.-They are citizens if they are British subjects before they come
here.
Mr. SYMON.-That is a point I do not wish to deal with. But they become citizens of the states,
and it is by virtue of their citizenship of the states that they become citizens of the
Commonwealth. Are you going to have citizens of the state who are not citizens of the
Commonwealth?
Mr. KINGSTON.-In some states they naturalize; but they do not in others.
Mr. SYMON.-Then I think they ought to. The whole object of legislating for aliens is that
there should be uniformity.
Sir EDWARD BRADDON.-They would not have that in the Federal Council.
Mr. SYMON.-Very likely not. What I want to know is, if there is anybody who will come under
the operation of the law, so as to be a citizen of the Commonwealth, who would not also be entitled
to be a citizen of the state? There ought to be no opportunity for such discrimination as would allow
a section of a state to remain outside the pale of the Commonwealth, except with regard to
legislation as to aliens. Dual citizenship exists, but it is not dual citizenship of persons, it is dual
citizenship in each person. There may be two men-Jones and Smith-in one state, both of whom
are citizens of the state, but one only is a citizen of the Commonwealth. That would not be the
dual citizenship meant. What is meant is a dual citizenship in Mr. Trenwith and myself. That
is to say, I am a citizen of the state and I am also a citizen of the Commonwealth; that is the
dual citizenship. That does not affect the operation of this clause at all. But if we introduce this
clause, it is open to the whole of the powerful criticism of Mr. O'Connor and those who say that it is
putting on the face of the Constitution an unnecessary provision, and one which we do not expect
will be exercised adversely or improperly, and, therefore, it is much better to be left out. Let us, in
dealing with this question, be as careful as we possibly, can that we do not qualify the citizenship
of this Commonwealth in any way or exclude anybody [start page 1764] from it, and let us do that
with precision and clearness. As a citizen of a state I claim the right to be a citizen of the
Commonwealth. I do not want to place in the hands of the Commonwealth Parliament,
however much I may be prepared to trust it, the right of depriving me of citizenship. I put this
only as an argument, because no one would anticipate such a thing, but the Commonwealth
Parliament might say that nobody possessed of less than £1,000 a year should be a citizen of the
Federation. You are putting that power in the hands of Parliament.
Mr. HIGGINS.-Why not?
Mr. SYMON.-I would not put such a power in the hands of any Parliament. We must rest this
Constitution on a foundation that we understand, and we mean that every citizen of a state
shall be a citizen of the Commonwealth, and that the Commonwealth shall have no right to
withdraw, qualify, or restrict those rights of citizenship, except with regard to one particular
set of people who are subject to disabilities, as aliens, and so on. Subject to that limitation, we
ought not, under this Constitution, to hand over our birth right as citizens to anybody, Federal
Parliament or any one else, and I hope the amendment will not be accepted.
Dr. COCKBURN (South Australia).-I think the Commonwealth should keep in its own hands the
key of its own citizenship. Some colonies are somewhat colourblind with regard to immigration,
Page 38 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 38
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
other colonies may be somewhat deficient in their ideas as to naturalization. If we place in the hands
of any state the power of forcing on the Commonwealth an obnoxious citizenship, we shall be
doing very great evil to the Commonwealth. This power should be in the hands of the
Commonwealth; it should itself possess power to define the conditions on which the citizenship of
the Commonwealth shall be given; and the citizenship of the Commonwealth should not
necessarily follow upon the citizenship of any particular state.
Mr. BARTON (New South Wales).-We have provided in this Constitution for the exercise of the
rights of citizenship, so far as the choice of representatives is concerned, and we have given various
safe-guards to individual liberty in the Constitution. We have, therefore, given each resident in the
Commonwealth his political rights, so far as the powers of legislation and administration intrusted
to the Commonwealth are concerned. Let us consider the position. Before the establishment of the
Commonwealth, each subject is the subject of a state. After the Commonwealth is established,
every one who acquires political rights-in fact, every one who is a subject in a state, having certain
political rights, has like political rights in the Commonwealth. The only difference between the
position before the institution of the Commonwealth and afterwards is that, so far as there are
additional political powers given to any subject or citizen, be has the right to exercise these, and the
method of exercising them is defined. So far the right of citizenship, if there is a right of
citizenship under the empire, is defined in the Constitution. Now, each citizen of a state is,
without definition, a citizen of the Commonwealth if there is such a term as citizenship to be
applied to a subject of the empire. I must admit, after looking at a standard authority-Stroud's
Judicial Dictionary-that I cannot find any definition of citizenship as applied to a British subject.
No such term as citizen or citizenship is to be found in the long roll of enactments, so far as I
can recollect, that deal with the position of subjects of the United Kingdom, and I do not think
we have been in the habit of using that term under our own enactments in any of our
colonies.
Mr. HIGGINS.-You had it in the Draft Bill.
Mr. BARTON.-Yes; but the term has since disappeared, and it disappeared owing to objections
from members of the Convention. I am inclined to think that the Convention is right in not applying
[start page 1765] the term "citizens" to subjects residing in the Commonwealth or in the states, but
in leaving them to their ordinary definition as subjects of the Crown. If, however, we make an
amendment of this character, inasmuch as citizens of the state must be citizens of the
Commonwealth by the very terms of the Constitution, we shall simply be enabling the
Commonwealth to deal with the political rights of the citizens of the states. The one thing
follows from the other. If you once admit that a citizen or subject of the state is a citizen or
subject of the Commonwealth, the power conferred in these wide terms would enable the
Federal Parliament to deal with the political rights of subjects of the states. I do not think the
honorable member intends to go so far as that, but his amendment is open to that
misconception.
Mr. BARTON.-When we confer a right of legislation on the Federal Parliament we trust them to
exercise it with wisdom, but we still keep as the subject of debate the question of whether a
particular legislative right should be conferred on the Federal Parliament. When you give them the
right then you may trust them to exercise it fully.
Mr. BARTON.-Yes; and in doing that we give them power to make persons subjects of the
British Empire. Have we not done enough? We allow them to naturalize aliens. That is a power
which, with the consent of the Imperial authority, has been carried into legislation by the
various colonies, and, of course, we cannot do less for the Commonwealth than we have done
for the colonies.
Mr. KINGSTON.-Such legislation is only good within the limits of each state.
Mr. BARTON.-Yes; and here we have a totally different position, because the actual right
which a person has as a British subject-the right of personal liberty and protection under the
laws-is secured by being a citizen of the states. It must be recollected that the ordinary rights
of liberty and protection by the laws are not among the subjects confided to the
Commonwealth. The administration of [start page 1766] the laws regarding property and
personal liberty is still left with the states. We do not propose to interfere with them in this
Constitution. We leave that amongst the reserved powers of the states, and, therefore, having done
nothing to make insecure the rights of property and the rights of liberty which at present exist in the
states, and having also said that the political rights exercisable in the states are to be exercisable also
in the Commonwealth in the election of representatives, we have done all that is necessary. It is
better to rest there than to plunge ourselves into what may be a sea of difficulties. We do not know
to what extent a power like this may be exercised, and we should pause before we take any such
leap in the dark.
Dr. QUICK (Victoria).-I understood that, under the Federal Constitution we are creating, we
would have a dual citizenship, not only a citizenship of the states, but also a citizenship of the
higher political organization-that of the Commonwealth. It seems now, from what the Hon. Mr.
Barton has said, that we are not to have that dual citizenship; we are to have only a citizenship of
the states.
Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that we are all
alike subjects of the British Crown.
Dr. QUICK.-If we are to have a citizenship of the Commonwealth higher, more comprehensive,
and nobler than that of the states, I would ask why is it not implanted in the Constitution? Mr.
Page 40 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 40
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
Barton was not present when I made my remarks in proposing the clause. I then-anticipated the
point he has raised as to the position we occupy as subjects of the British Empire. I took occasion
to indicate that in creating a federal citizenship, and in defining the qualifications of that
federal citizenship, we were not in any way interfering with our position as subjects of the
British Empire. It would be beyond the scope of the Constitution to do that. We might be
citizens of a city, citizens of a colony, or citizens of a Commonwealth, but we would still be,
subjects of the Queen. I see therefore nothing unconstitutional, nothing contrary to our instincts as
British subjects, in proposing to place power in this Constitution to enable the Federal Parliament
to deal with the question of federal citizenship. An objection has been raised in various quarters-as
by the honorable and learned members (Mr. O'Connor and Mr. Wise)-to the effect that we ought to
define federal citizenship in the Constitution itself. I have considered this matter very carefully, and
it has seemed to me that it would be most difficult and invidious, if not almost impossible, to frame
a satisfactory definition. There is in the Constitution of the United States of America a cast-iron
definition of citizenship, which has been found to be absolutely unworkable, because, among
other things, it says that a citizen of the United States shall be a natural-born or naturalized
citizen within the jurisdiction of the United States, and it has been found that that excludes
the children of citizens born outside the limits of this jurisdiction. That shows the danger of
attempting definitions, and although I have placed a proposed clause defining federal
citizenship upon the notice-paper, the subject, seems to me surrounded with the greatest
difficulty, and no doubt the honorable and learned members (Mr. Wise, Mr. O'Connor, and
Mr. Symon) would be the first to attack any definition, and would be able to perforate it. In
my opinion, it would be undesirable to implant a cast-iron definition of citizenship in the
Constitution, because it would be better to leave the question more elastic, more open to
consideration, and more yielding to the advancing changes and requirements of the times.
Mr. SYMON.-I agree with the honorable member, and I also think it is unlikely that the
Commonwealth will seek to derogate from it, but I will not place a power in the hands of the
Commonwealth which will enable them to derogate from it, and if that is not done it will be merely
a dead letter. Is there any citizen of the Commonwealth who is not already a citizen of the state?
State citizenship is his birthright, and by virtue of it he is entitled to the citizenship of the
Commonwealth. When you have immigration, and allow different people to come in who
belong to nations not of the same blood as we are, they become naturalized, and thereby are
entitled to the rights of citizenship.
Sir EDWARD BRADDON.-They are citizens if they are British subjects before they come
here.
END QUOTE
Again;
QUOTE
Dual citizenship exists, but it is not dual citizenship of persons, it is dual citizenship in each
person. There may be two men-Jones and Smith-in one state, both of whom are citizens of the
state, but one only is a citizen of the Commonwealth. That would not be the dual citizenship
meant. What is meant is a dual citizenship in Mr. Trenwith and myself. That is to say, I am a
citizen of the state and I am also a citizen of the Commonwealth; that is the dual citizenship.
END QUOTE
.
QUOTE
Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that we are all
alike subjects of the British Crown.
END QUOTE
.
Page 41 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 41
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
QUOTE
Sir EDWARD BRADDON.-They are citizens if they are British subjects before they come
here.
END QUOTE
.
Actually because of this and the fear the Commonwealth of Australia could be overrun by those
from India being also British Subjects it was for this that Section 51(xxvi) was specifically
introduced so that discrimination against “races” could be exercised, as also the Hong Kong British
Subjects were of a concern to the framers of the Constitution.
What we therefore had was that the Commonwealth of Australia could “naturalise” “aliens” on
behalf of the British Crown but it could not declare “nationality of those born within the
Commonwealth of Australia as the wording “naturalisation” is not “nationality!
As the framers of the Constitution made clear anyone born (other then Diploma’s children) within
the realm of the King was a subject of the King.
Therefore Heather Hill was a “citizen” when she moved to the Commonwealth of Australia where
she was a British subject, as the Framers of the Constitution stated;
QUOTE
“Sir EDWARD BRADDON.-They are citizens if they are British subjects before they come
here.”
END QUOTE
.
* But they stated this more then a hundred years ago, didn’t they?
.
**#** And it still governs today, as it is embedded in the Constitution!
As was published in INSPECTOR-RIKATI® on IR WorkChoices legislation
A book about the validity of the High Courts 14-11-2006 decision
ISBN 978-0-9751760-6-1 (Book-CD), 978-0-9751760-7-8 (Book-B&W), 978-0-9751760-8-5
(Book-Colour)
QUOTE
LEGAL REALITY (Part 1)
It must be clear that the terminology used by the Framers of the Constitution are; “British subject”, “to make persons
subjects of the British Empire.”, “with the consent of the Imperial authority”, “What is meant is a dual
citizenship in Mr. Trenwith and myself. That is to say, I am a citizen of the state and I am also a citizen of the
Commonwealth; that is the dual citizenship.”, “we are all alike subjects of the British Crown.” We have a High
Court of Australia that appears to me being political motivated to try to alter the Constitution by stealth by endorsing a
substitute Constitution! The question is if the judges of the High Court of Australia committed TREASON.
There can be no doubt that the Commonwealth of Australia Constitution Act 1900 (UK) provides that the High Court
of Australia is the Court to interpret the Constitution, it shall be the court to finally determine what is constitutionally
applicable, but this is now the issue, did the High Court of Australia do so in Sue v Hill, or did the judges act without
jurisdiction to interpret An unconstitutional substitute constitution instead?
Sorell v Smith (1925) Lord Dunedin in the House of Lords
“In an action against a set person in combination, a conspiracy to injure, followed by actual injury, will give good
cause for action, and motive or instant where the act itself is not illegal is of the essence of the conspiracy.”
HANSARD 26-3-1897 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
Mr. ISAACS:
There is a line up to which concession may become at any moment a sacred duty, but to pass that line would be
treason; and therefore, when we are asked solemnly and gravely to abandon the principle of responsible
government, when we are invited to surrender the latest-born, but, as I think, the noblest child of our
constitutional system-a system which has not only nurtured and preserved, but has strengthened the liberties of
our people-then,
HANSARD 27-1-1898 Constitution Convention Debates
Mr. SYMON.-
The relations between the parties are determined by the contract in the place where it occurs.
Page 42 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 42
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
And
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.
And
Mr. BARTON: If they arise in a particular State they must be determined by the laws of the place where
the contract was made.
And
Mr. BARTON.-We do not propose to hand over contracts and civil rights to the Federation, and they are
intimately allied to this question.
And
Sir JOHN DOWNER.-
The people of the various states make their own contracts amongst themselves, and if in course of their
contractual relations disagreements arise, and the state chooses to legislate in respect of the subject-matter
of them, it can do so.
HANSARD 31-1-1898 Constitution Convention Debates
Mr. SOLOMON.-
We shall not only look to the Federal Judiciary for the protection of our interests, but also for the just
interpretation of the Constitution:
HANSARD 8-2-1898 Constitution Convention Debates
Mr. HIGGINS.-I did not say that it took place under this clause, and the honorable member is quite right in
saying that it took place under the next clause; but I am trying to point out that laws would be valid if they
had one motive, while they would be invalid if they had another motive.
HANSARD 17-2-1898 Constitution Convention Debates
Mr. OCONNOR.-
We must remember that in any legislation of the Commonwealth we are dealing with the Constitution. Our own
Parliaments do as they think fit almost within any limits. In this case the Constitution will be above
Parliament, and Parliament will have to conform to it.
HANSARD 1-3-1898 Constitution Convention Debates
Mr. GORDON.-
The court may say-"It is a good law, but as it technically infringes on the Constitution we will have to wipe
it out."
And
Mr. BARTON.-
The position with regard to this Constitution is that it has no legislative power, except
that which is actually given to it in express terms or which is necessary or incidental to a
power given.
END QUOTE
.
QUOTE
LEGAL REALITY (Part 2)
HANSARD 2-3-1898 Constitution Convention Debates
Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that we are all alike
subjects of the British Crown.
HANSARD 11-03 -1891 Constitution Convention Debates
Mr. CLARK:
What we want is a separate federal judiciary, allowing the state judiciaries to remain under their own
governments.
HANSARD 17-3-1898 Constitution Convention Debates
Mr. BARTON.-
this Constitution is to be worked under a system of responsible government
And
Mr. BARTON.-
We have simply said that the guarantee of the liberalism of this Constitution is responsible government, and
that we decline to impair or to infect in any way that guarantee.
And
Mr. BARTON.-
Of course it will be argued that this Constitution will have been made by the Parliament of the United
Kingdom. That will be true in one sense, but not true in effect, because the provisions of this Constitution ,
Page 43 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 43
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
the principles which it embodies , and the details of enactment by which those principles are enforced, will
all have been the work of Australians.
And
Mr. BARTON.-
Having provided in that way for a free Constitution, we have provided for an Executive which
is charged with the duty of maintaining the provisions of that Constitution; and,
therefore, it can only act as the agents of the people.
HANSARD 17-3-1898 Constitution Convention Debates
Mr. DEAKIN.-
In this Constitution, although much is written much remains unwritten,
And
Mr. DEAKIN.-
What a charter of liberty is embraced within this Bill-of political liberty and religious liberty-the liberty
and the means to achieve all to which men in these days can reasonably aspire . A charter of liberty is
enshrined in this Constitution, which is also a charter of peace-of peace, order, and good government for
the whole of the peoples whom it will embrace and unite.
And
Mr. SYMON (South Australia).-
We who are assembled in this Convention are about to commit to the people of Australia a new charter of
union and liberty; we are about to commit this new Magna Charta for their acceptance and confirmation,
and I can conceive of nothing of greater magnitude in the whole history of the peoples of the world than
this question upon which we are about to invite the peoples of Australia to vo te. The Great Charter was
wrung by the barons of England from a reluctant king. This new charter is to be given by the people of
Australia to themselves.
And
Mr. BARTON.-
We can have every faith in the constitution of that tribunal. It is appointed as the arbiter of the Constitution. . It
is appointed not to be above the Constitution, for no citizen is above it, but under it; but it is appointed for
the purpose of saying that those who are the instruments of the Constitution-the Government and the
Parliament of the day-shall not become the masters of those whom, as to the Constitution, they are bound
to serve. What I mean is this: That if you, after making a Constitution of this kind, enable any
Government or any Parliament to twist or infringe its provisions, then by slow degrees you may have that
Constitution-if not altered in terms-so whittled away in operation that the guarantees of freedom which it
gives your people will not be maintained; and so, in the highest sense, the court you are creating here, which is
to be the final interpreter of that Constitution, will be such a tribunal as will preserve the popular liberty in all
these regards, and will prevent, under any pretext of constitutional action , the Commonwealth from
dominating the states, or the states from usurping the sphere of the Commonwealth.
HANSARD 9-2-1898 Constitution Convention Debates
Mr. HIGGINS.-No, because the Constitution is not passed by the Parliament.
END QUOTE
.
As such, it doesn’t matter of the States and the Commonwealth made some cosy deal with the
British Parliament as the “principles” embedded in the Constitution remains.
Now, this means that we are and remain to be “British Subjects” and if the purported High Court of
Australia Sue v Hill is deemed valid then those judges who were admitted to the bar having sworn
an oath of alliance to the British Crown could not enforce laws under the Queen of Australia”.
The Commonwealth of Australia not being a dominion, republic, monarchy, etc but no more but a
“POLITICAL UNION” therefore cannot have some Queen as Head of State.
.
* Are you saying that not even Queen Elizabeth II is Head of State of the Commonwealth of
Australia?
.
**#** Her Majesty is with all due respect Head of State of the United Kingdom and by this the
States are Colonies/dominions under the British Crown. When the British King was King of
Scotland it was a separate Kingdom, this cannot apply to the Commonwealth of Australia. However
as with as the Coke reports indicateS;
Page 44 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 44
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
.
7 Coke Report 18 b, 77 ER p399
QUOTE
. For the first, it is termed actual obedience, because, though the King f' England hath absolute right
to other kingdoms or dominions, as France, Aquitai, Normandy, &c. yet seeing the King is not in
actual possession thereof, none born there since the Crown of England was out of actual possession
thereof, are subjects to the King of England.
END QUOTE
.
* But don’t they talk about the Commonwealth of Australia in its sovereign rights?
.
**#** Sure, that is for example when it exercises powers over Territories. The term “sovereign
power” is not meaning that somehow the Commonwealth has a monarch as a sovereign or can
create its own. The Colonies had “sovereign Parliament” where it could legislate as it liked but
upon federation the now titled State parliament were created within the Commonwealth of
Australia Constitution Act 1900 (UK) and no longer were “sovereign Parliaments” but became
“constitutional Parliaments” where powers stripped away from them were given to the
Commonwealth of Australia. As such Section 16 of the purported Victorian Constitution Act 1975
is a nonsense as the Victorian Constitution Act since federation is limited by the Commonwealth of
Australia Constitution Act 1900 (UK). Further, no “constitutional Parliament” can amend its own
constitutions as it can only propose amendments and then seek a State referendum to seek the
electors to approve or veto the proposed amendment. It also means that every State that amended its
Constitution without a State referendum having approved this, such as the NSW 1902 amendment
for Local parliaments is and remains to be ULTRA VIRES.
In any event, in federal constitutional terms the Commonwealth was the “Central Government” and
the states Government was the “local Government” and then you had “municipal governments”.
QUOTE
END QUOTE
.
Hansard 24-2-1898 \Constitution Convention Debates Mr. OCONNOR.-
QUOTE
You have only to turn to the decisions of the American courts to find scores of cases in which the
principal matters to be considered were questions of fact, to which the Constitution was to be
afterwards applied. You cannot turn over a page of the Constitution without finding matters that
must come before the court, which is the highest arbiter. I hope honorable members will not be led
away by the suggestion that this is a matter which it is [start page 1500] intended to leave to the
consideration of the court. I would call the attention of Mr. Grant to the fact that the amendment
would be a direction to Parliament that in making its laws in regard to rates it should follow the
direction of the Constitution. The probabilities are that in 99 cases out of 100 the direction of the
Constitution would be followed. It is only in those cases in which Parliament goes outside the lines
which the Constitution has marked out, that the court would have any jurisdiction. The court is only
a means of keeping Parliament within the lines of the Constitution, and only in such cases would
the aid of the court be invoked. Within the lines in which Parliament has power, Parliament will be
absolutely free, and it is only when it exceeds those lines that the High Court can be called on to
determine the question. There are no terms that have been more misused than those of "Trust the
Federal Parliament." No one is more ready to trust the Federal Parliament than I am, and to trust it
fully and frankly, in regard to any matter which, I think, ought to be handed over for its
consideration. As a matter of constitutional policy, I am willing to trust Parliament to the uttermost;
but our objection to handing over this question to Parliament is, not because we are afraid to trust it,
but because, from its very constitution, Parliament is absolutely unfitted to deal with it. Mr. Holder
Page 45 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 45
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
has reminded me of a suggestion he made in the course of his exceedingly temperate and lucid
speech on this question.
END QUOTE
.
Hansard 4-3-1891 Constitution Convention Debates Mr. FYSH:
QUOTE
I say that it will be absolutely unnecessary to ask the people of these colonies to surrender to the
dominion parliament anything which can best be legislated for locally-anything which cannot be
best legislated for by a central executive. Now, these may be far embracing words, but every man
who runs may read in connection with an opinion of this kind, because he himself will be able as
well as any of us to detect what it is that is best discharged locally. He will know that, with respect
to the great future progress of his country, it must be by his voice that the extension of railways and
of roads must be continued. He must know that it must be by his will and consent that possibly the
education of the people shall be provided; and he must know that, in connection with the various
developments of his own province, there can be no interference by an executive which will sit 1,000
miles away, and which cannot, except in regard to some individual members thereof, have so close
an identity with the work in which he is engaged, or such a knowledge of the necessities which
surround the country in which he is living as those who represent him in the local parliaments. I
believe, therefore, that we may limit our explanation of the term "surrender" to these very few
words, and that the people may at once feel sure that this Convention is unlikely to ask them to give
up any important right; but that its purpose will be to continue in all its harmony, in all its prestige,
the position of the local parliaments, and that the dominion parliament, the great executive of the
higher national sphere at which we are to arrive, will not in any way detract from it. But they will
continue, most likely, under the Constitution under which they live, to have the right of appointing
their own representatives to their own local parliaments, and, possibly, to have also in connection
therewith their Upper Chamber; and certainly in all matters their voice will be paramount. Under
these circumstances, I deem it that our duty in connection [start page 43] with this paragraph of the
resolution will not be a difficult one. We are not likely to disappoint the people; and when we come
to questions of detail we shall each be prepared to agree, I have no doubt, most readily, as to what
work of the dominion will be best undertaken by the dominion parliament, and what will be best
understood and undertaken by the local parliaments.
END QUOTE
.
Hansard 10-3-1891 Constitution Convention Debates
QUOTE
Dr. COCKBURN: There have been only four amendments in this century. The hon. member,
Mr. Inglis Clark, is a good authority on America, and I am sure he will agree with me that out of
sixteen amendments only four have been agreed to in this century. All the other amendments which
have been made were really amend- [start page 198] ments which were indicated almost at the very
framing of the constitution, and they may be said to be amendments which were embodied in the
constitution at the first start. The very element, the very essence, of federation is rigidity, and it is
no use expecting that under a rigid and written constitution we can still preserve those advantages
which we have reaped under an elastic constitution. All our experience hitherto has been under the
condition of parliamentary sovereignty. Parliament has been the supreme body. But when we
embark on federation we throw parliamentary sovereignty overboard. Parliament is no
longer supreme. Our parliaments at present are not only legislative, but constituent bodies.
They have not only the power of legislation, but the power of amending their constitutions.
That must disappear at once on the abolition of parliamentary sovereignty. No parliament
under a federation can be a constituent body; it will cease to have the power of changing its
constitution at its own will. Again, instead of parliament being supreme, the parliaments of a
federation are coordinate bodies-the main power is split up, instead of being vested in one body.
Page 46 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 46
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
More than all that, there is this difference: When parliamentary sovereignty is dispensed with,
instead of there being a high court of parliament, you bring into existence a powerful judiciary
which towers above all powers, legislative and executive, and which is the sole arbiter and
interpreter of the constitution. Therefore it is useless for us to hope that we can, at the same time,
have the advantages of a federation and retain the advantages of that elasticity which has hitherto
given birth to our greatest privileges. Even responsible government, which we have all learned to
revere so much, has simply been a growth under the shelter of parliamentary sovereignty. We do
not know that the parliamentary responsibility of ministers can exist under any other conditions.
END QUOTE
.
* So, the Parliament of any State neither can amend its constitution?
.
**#** No, and Section 123 of the Commonwealth of Australia Constitution Act 1900 (UK)
actually refer to that. It also means that before a State can refer legislative powers to the
Commonwealth, as by that it does alter its legislative “limits” it must seek to have a State
referendum approval!
.
Anyhow some other issues to consider;
.
As shown below the Head of State is the Monarch of the United Kingdom and Her Royal Highness
Representative’s is not Head of State, but represents the Head of State of the United Kingdom.
Hansard 4-3-1891 Constitution Convention Debates Sir SAMUEL GRIFFITH:
QUOTE
That I venture, with the greatest submission, to say is only an accident of responsible government,
and not its principle or its essence. In form-legal form, I mean, statutory form-so far as our written
Constitution goes, and so far as the unwritten and partly written Constitution of the United
Kingdom goes, the system depends on these propositions-that the ministers are appointed by the
head of the state, the Sovereign, or her representative, and that they may hold seats in Parliament.
That is all that will be found in the Constitution of the United Kingdom. They are appointed by the
head of the state, and some of them may hold seats in Parliament-a limited number. That is part of
the written Constitution. In the Australian colonies, with few exceptions, the same propositions are
the only ones that are to be found laid down by positive law. The ministers are appointed by the
head of the state-the Sovereign's representative-and they hold office during his pleasure, and they
may, or a certain number may, hold seats in Parliament. In two of the colonies, I believe, is to be
found an innovation, an addition to this proposition, stereotyping in formal language the practice
that has grown up in Great Britain and in the other colonies since the system of responsible
government has been invented; that is, that some of the ministers shall hold seats in Parliament.
Victoria and South Australia, I believe, have provisions of that kind.
Page 47 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 47
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
and the other represents the people as people. Now in America the directly opposite form of
government from that which we call responsible government has been adopted. I submit with great
deference that the essential difference is this: that there the ministers may not [start page 35] sit in
Parliament, whereas under our form of government ministers may sit in Parliament, and in practice
do. In the other form of government they cannot sit in Parliament, they are expressly dissociated
from Parliament. The origin of this difference lies in the fact that the framers of the American
Constitution had been frightened by the tendency then lately exhibited in the United Kingdom of
ministers to overawe Parliament, and they thought it extremely desirable to separate the executive
and legislative branches of government, following the arguments of a great writer-I should rather
say a celebrated writer-of those days, Montesquieu, the wisdom of whose observations and the
accuracy of whose deductions and assumption of principles may be, I submit with great respect,
very open to doubt. But the Americans adopted that system-that the executive shall be entirely
dissociated from Parliament, and therefore may not sit in Parliament. As I believe that the history of
the American Constitution has shown the wisdom of having two houses of equal and co-ordinate
authority, so also has it shown the unwisdom of the system there adopted of having ministers
dissociated, and the executive government entirely dissociated, from the legislature. It has taught us
the lesson that the character of legislation, the manner of legislation, and the result of legislation,
the orderly conduct of business, and the good government of the country, are not nearly so well
attained under the American system, where the executive is dissociated from Parliament, as under
the system we have, where practically ministers are intimately associated with Parliament. But this
is what I desire to point out. In America we have the system of two houses with co-ordinate
jurisdiction.
Sir SAMUEL GRIFFITH: Well, for the purpose I am speaking of. When I use the word co-
ordinate, I use it with reference to what I said before-that the house representing the states must
concur in every law that is passed. We have had in America the system of two houses with powers
co-ordinate for that purpose.
END QUOTE
.
As to judicial independence
Hansard 20-4-1897 Constitution Convention Debates
QUOTE
Mr. BARTON: Where you have a sovereign Parliament, and the judge is merely the
interpreter of the laws as they arise, and not the guardian of a Constitution in the same sense
as a federal judge is, the same circumstances remain in part; but where you will have a
tribunal constantly charged with the maintenance of the Constitution against the inroads
which may be attempted to be made upon it by Parliament, then it is essential that no judge
shall have any temptation to act upon an unexpected weakness-for we do not know exactly
what they are when appointed-which may result, whether consciously or not, in biasing his
decisions in favor of movements made by the Parliament which might be dangerous to the
Constitution itself. My friend Mr. O'Connor points out that the most important questions that may
arise may be those between the States and the Commonwealth, the validity of State laws, and the
validity of Commonwealth laws which may overlap or override them. Those very questions which
the Senate exists to prevent may be arising and embarrassing the Constitution. The Senate will have
to exercise its powers to prevent overlapping of that kind, but if it fails to exercise its authority
power must be present in the court to adjust matters. You may easily conceive a case in which there
might be a desire to reward a judge for past services, and with the view that he may be insensibly
Page 48 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 48
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
influenced in regard to future cases. I do not think a judge should have anything to expect in that
way.
END QUOTE
But this relates to federal judges and not State judges exercising federal jurisdiction, but that is
another story. Like wise the following quotation about creating new States and admitting new State
was attended to but again we leave oit for another time to fully canvas this.
Mr. SYMON.-But there is no barrier to prevent Queensland adopting this Constitution any more
than there is to prevent any of the colonies represented here from doing so.
Mr. BARTON.-Quite so; that is involved in what I previously said.
Mr. HIGGINS (Victoria).-The only question before the Chair is as to whether the words "may
from time to time establish new states" are to remain in the clause.
The CHAIRMAN.-Yes, and that is put as a test question as to whether we are to strike out the
rest of the clause.
Mr. HIGGINS.-As attention is riveted on those words, I will do what I have not done as yet
throughout the Convention, namely, direct the notice of the Drafting Committee to the way in
which this clause is drawn. I cannot see why the word "establish" is used there, and I would suggest
to the Drafting Committee, very respectfully, that if Queensland were divided into three colonies
before the people of that part of Australia applied for admission to the Federation, it would be quite
a false statement to say that the Federal Commonwealth establishes those three colonies.
Mr. ISAACS.-No, the clause speaks of establishing them as new states, not as colonies.
Mr. HIGGINS.-I only want to take care that there shall be no mystical distinction urged hereafter
as between "establish" and "admit." Those three colonies would be established by the Imperial
Parliament. I think that the true wording of the clause is that the Federal Parliament may admit any
existing colonies or any new states hereafter created.
Mr. HIGGINS.-Yes; I cannot see the force of the distinction that is drawn between "establish"
and "admit" in this connexion. There is a force in our ordinary parlance. However, I will not move
an amendment, because the drafting of the Bill is in the hands of very competent persons, and but
for the fact that these words are being specially dealt with, I would not have risen to say that the
word "establish" here is not the correct word to use.
The question that the words "may from time to time establish new states" stand part of the clause
was resolved in the affirmative.
Amendment suggested by the House of Assembly of South Australia-
Dr. COCKBURN (South Australia).-I think that the Commonwealth should be able to make
terms with new states seeking admission, but I do not think that it should be able to deal with a
matter of such vital importance as their representation in the Senate or the House of
Representatives. I look upon the principle of equal representation in the Senate as one of the
cardinal features of the Constitution. There is no such power given to the American Congress as is
proposed to be given here, and if we, who claim equal representation in the Senate as our dearest
right, allow it to be surrendered in the case of others we must look to our own position. This is a
question of principle. I say that if Queensland enters the Federation as a whole, or as more than one
state, each new state should enter upon the same terms in respect of representation. I look upon this
as an essential feature of the great example of federation afforded by the United States, which has
stood the [start page 697] test of time, and which excites the admiration of the civilized world.
* How then?
.
**#** Something I am setting out in my forthcoming book; “INSPECTOR-RIKATI® on
CITIZENSHIP & Why not voting, A book on CD about ELECTORAL AND CITIZENSHIP
RIGHTS”, (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
“Chapter 000M- How to lawfully create a Republic”. In my view Justice Wood should have
appropriately canvassed what was placed before the court and ignorance is no excuse. If he didn’t
know what was filed then his job was to have sorted it out first. I view his rage, as I view it to be,
upon an UNREPRESENTED Defendant was totally uncalled for and so also the criticism expressed
on such a public document. Surely we should be able to expect a better standard of judicial
competence? Anyhow, lets go over to the next Chapter.
Page 50 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 50
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209
.
Page 51 Chapter DRAFT-000R INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting Page 51
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
RRP $30.00 + P&H charges (where applicable) (ISBN 0-9751760-1-3 prior to 1-1-2007) ISBN 978-0-9751760-1-6
PLEASE NOTE: You may order/purchase at http://www.schorel-hlavka.com or by facsimile 0011-61-3-94577209