Chapter Constitutional Lessons: Lets Try The First Question

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Chapter constitutional lessons

* Gerrit, are you teaching constitutional issues?
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**#** INSPECTOR-RIKATI®, well, take your pick you can learn from my writings or go along
with the crap others present you with.
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* What about the federal government’s “Constitutional Policy Unit”? Surely they would know
what is applicable?
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**#** Well if they knew then why is the Senate voting o0n Bills that were already defeated at the
conclusion of the session the Bills were introduced? They do not seem to understand and
comprehend that no matter what Standing Orders of the Senate may be in place the Standing orders
cannot override the legal principles embedded in the constitution by the Framers of the constitution!
As such, where the Framers of the Constitution made clear that any bill not passed in the same
session it was submitted to the Senate then regardless if there was a vote or not it is deemed to have
been lost.
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* You mean when the Senate votes to defer the voting to a next session it in fact cannot do so and
the Bill is deemed defeated by the end of the session if there was no vote on it or the vote was
defeating the Bill?
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**#** Correct. But you find Senators don’t know this and that just underlines that while they get a
lot of money being paid to represent us they fail to do so. Hence, it is better to start from basics
about constitutional matters.
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.
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Lets try the first question;
There are three kinds of level of legislations that can be applicable to Australians and I like you to
list them for me but will give one as to give a hint what I seek as an answer, albeit not stated in any
particular order;
1.
2.
3. Legislation enacted by the federal Parliament of the Commonwealth of Australia
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* I know this. The Federal Parliament of the Commonwealth of Australia and there under the State
parliament and there under the local Government being municipal councils/shire councils.
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**#** Actually, prior to Federation, where we need to start of with it was as follows;.
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CHART 1
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* *
*British Parliament*
* *
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Colonial Constitutions
(LEGISLATIVE POWERS X,Y & Z)
I I I I I I
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I I -------- I I I I-------------I I
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* * * * * * * * * * * *
*SA+ Northern Territory* *Victoria* *NSW * *WA* *Queensland* *Tasmania*
* P * * C * * C * * C* * C * * C *
********************** ********* ******* ***** ************ ***********
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Note “P” stands for Province and “C” stands for Colony.
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Before I set out the rest lets first see how you answer the second question.
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The second question; Can you set out which, if any of the three aforementioned legislative
provisions has superior over the others? Which are exclusive powers and which are not, etc. Do
provide additional details if needed to explain your answers and/or meanings. If you listed one
particular legislative power as superior then set out when this applied, if not in all circumstances,
and when it then doesn’t apply?
.
* Well that is simple, the British Parliament because of the constitution and then the
Commonwealth of Australia and under that is the States.
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**#** That is incorrect.
Let’s build now upon how it was at the time of federation
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CHART 2
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****************** Commonwealth Constitution
* * (LEGISLATIVE POWERS Z)
*British Parliament*-----------------------------------------I
* * I
****************** I
Colonial/State Constitutions I
(LEGISLATIVE POWERS X & Y) I
I I I I I I I
I I I I I I **************************
I I I I I I * *
I I I I I I *Commonwealth of Australia*
I I I I I I * PU *
I I I I I I **************************
I I I I I I I
I I I I I I I
I I I I I I I
I I I I I I I
I I I I I I I
---------------------------- I I I I I I--------------------------I I
I I I I I I I
I I -------- I I I I-------------I I I
I I I I I I I
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* * * * * * * * * * * * I
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*SA+ Northern Territory* *Victoria* *NSW * *WA* *Queensland* *Tasmania* I

* S * * S * * S * * S* * S * * S * I
********************** ********* ******* ***** ************ *********** I
I I I I I I I
I I I I I I -------------------------------I
I I I I I --------------------------------------------------I
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I I I ---------------------------------------------------------------------------I
I I------------------------------------------------------------------------------------------I
I ------------------------------------------------------------------------------------------------------I
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Note “S” stands for State and “PU” stands for Political Union
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* Why did you change the colours of the names?
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**#** This indicates a change of legislative powers. “Green” means that this is the powers
exercised by the Commonwealth, a “POLITICAL UNION” for an on behalf of all States as
provided for tin the federal constitution (Commonwealth of Australia Constitution Act 1900 (UK))
whereas Orange means that each State had left the residue legislative powers they can exercise for
so far the Commonwealth has not legislated within its listed powers in the constitution and
otherwise.
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This means that the states legislative powers remained to be what the Commonwealth wasn’t given
in the first place and other legislative powers the Commonwealth was given within Section 51 but
did not legislate upon then the States could still legislate upon this until such time that the
Commonwealth commenced to legislate upon it. The exemption to the rule is taxation, as each State
was entitled to legislate upon taxation however only upon the area’s the Commonwealth had not so
far legislated upon. As such if the Commonwealth were to legislate a land tax then the States no
longer can do so.
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* Doesn’t the Commonwealth have powers to overrule the States?
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**#** Not really, as while this is so perceived there is no such need.
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* But what about Section 109 then?

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**#** That is different. The states and the Commonwealth at time of federation had concurrent
legislative powers, meaning that either could legislate upon a subject, but again once the
Commonwealth commenced to legislate upon a certain subject then the States no longer could
legislate on that issue.
QUOTE
109 Inconsistency of laws
When a law of a State is inconsistent with a law of the
Commonwealth, the latter shall prevail, and the former shall, to the
extent of the inconsistency, be invalid.
END QUOTE
Then having already state legislation in force it means that if the Commonwealth has commenced to
legislate and the State legislation already existing is in conflict then the Commonwealth legislation
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prevails. As such only upon the legislative powers that were given to the Commonwealth does this
apply. Being it direct legislative powers or incidental legislative powers.
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Therefore if the Commonwealth legislated as to residential planning in a state then it has no legal
force and cannot override State legislation because the Commonwealth was not given such
legislative powers in the constitution.
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Hansard 22-9-1897 Constitution Convention Debates
QUOTE
The Hon. R.E. O'CONNOR (New South Wales)[3.18]: The moment the commonwealth
exercises the power, the states must retire from that field of legislation.
END QUOTE
.
QUOTE
The Hon. R.E. O'CONNOR (New South Wales)[3.18]: We ought to be careful not to load
the commonwealth with any more duties than are absolutely necessary. Although it is quite
true that this power is permissive, you will always find that if once power is given to the
commonwealth to legislate on a particular question, there will be continual pressure
brought to bear on the commonwealth to exercise that power. The moment the
commonwealth exercises the power, the states must retire from that field of legislation.
END QUOTE
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QUOTE
Mr. OCONNOR.-Directly it is exercised it becomes an exclusive power, and there is no
doubt that it will be exercised.
QUOTE
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After Federation the ACT (Australia Capital Territory became available to the Commonwealth of
Australia as seat of the Federal Government;
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CHART 3
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*British Parliament*----------------------------------------- I
* * I
****************** I
I I I I I I I
I I I I I I **************************
I I I I I I * *
I I I I I I * PU *
I I I I I I **************************
I I I I I I I I
I I I I I I ****** I
I I I I I I * * I
I I I I I I *ACT* I
I I I I I I * T* I
---------------------------- I I I I I I--------------------------I ****** I
I I I I I I I
I I -------- I I I I-------------I I I
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I I I I I I I
********************** ******** ******* ***** ************ *********** I
* * * * * * * * * * * * I
*SA+ Northern Territory* *Victoria* *NSW * *WA* *Queensland* *Tasmania* I
* S * * S * * S * * S* * S * * S * I
********************** ********* ******* ***** ************ *********** I
I I I I I I I
I I I I I I -------------------------------I
I I I I I --------------------------------------------------I
I I I I -----------------------------------------------------------------I
I I I ---------------------------------------------------------------------------I
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I ------------------------------------------------------------------------------------------------------I
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Note “S” stands for State and “PU” stands for Political Union
Thereafter, South Australia handed over to the Commonwealth of Australia the Northern Territory.
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CHART 4
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* * I
****************** I
I I I I I I I
I I I I I I **************************
I I I I I I * *
I I I I I I * PU *
I I I I I I **************************
I I I I I I I I I
I I I I I I ****** ***** I
I I I I I I * * * * I
I I I I I I *ACT* *NT* I
I I I I I I * T * * T* I
I---------------------- I I I I I I------------------------- I ****** ***** I
I I I I I I I
I I -------- I I I I-------------I I I
I I I I I I I
***** ******** ******* ***** ************ *********** I
* * * * * * * * * * * * I
*SA* *Victoria * *NSW * *WA* *Queensland* *Tasmania* I
* S* * S * * S * * S* * S * * S * I
***** ******** ******* ***** ************ *********** I
I I I I I I I
I I I I I I -------------------------------I
I I I I I --------------------------------------------------I
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I I I ---------------------------------------------------------------------------I
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Note “S” stands for State, “PU” stands for Political Union and “T” stands for Territory.
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* What about new territories or States?
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**#** New territories are shown as “OTHER” and when it comes to new states then pending what
the Federal Parliament provides for as to representation in the parliament, etc, they will basically be
like existing States, just not being original states.
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CHART 5
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* * I
****************** I
I I I I I I I
I I I I I I **************************
I I I I I I * *
I I I I I I * PU *
I I I I I I **************************
I I I I I I I I I
I I I I I I ********* ****** ***** I
I I I I I I * * * * * * I
I I I I I I * OTHER* *ACT* *NT* I
I I I I I I ********** * T* * T* I
I---- ----------------- I I I I I I--------------------------I ****** ***** I
I I I I I I I
I I------------------ I I I -------------I I I
I I I I I I I
***** ******** ******* ***** ************ *********** I
* * * * * * * * * * * * I
*SA* *Victoria* *NSW * *WA* *Queensland* *Tasmania* I
* S* * S * * S * * S* * S * * S * I
***** ******** ******* ***** ************ *********** I
I I I I I I I
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I I I I I -----------------------------------------------------I
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* You indicate that the British Parliament still has its legislative powers in regard of the states
(former colonies) and the POLITICAL UNION called the Commonwealth of Australia, is that
correct?
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**#** It is a British constitution and as such it remains to be under British law. But there is more to
it. 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
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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.
The States, are therefore subject to Commonwealth of Australia legislative provisions for so far
they, the States, mutually as a POLITICAL UNION being the Commonwealth of Australia have
legislated as such, albeit a State can refuse to enforce Commonwealth law through its legal system
where it is held that a Commonwealth of Australia legislative provision is undesirable and/or the
legislation exceeds constitutional powers.
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CHART 6
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* *
*MEMBER STATES OF THE EUROPEAN UNION (INCLUDING THE UK)*
* *
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*EUROPEAN UNION*
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****************** Commonwealth Constitution I
* * (LEGISLATIVE POWERS Z) I
*British Parliament*--------------------------------- --I I
* * I I
****************** I I----------------------I
Colonial/State Constitutions I I I
(LEGISLATIVE POWERS X & Y) I I I
I I I I I I I I I
I I I I I I I I I
I I I I I I I I I
I I I I I I I I I
I I I I I I ************************** I
I I I I I I * * I
I I I I I I *Commonwealth of Australia* I
I I I I I I * PU * I
I I I I I I ************************** I
I I I I I I I I I I
I I I I I I ********* ****** ***** I I
I I I I I I * * * * * * I I
I I I I I I * OTHER* *ACT* *NT* I I
I I I I I I ********** * T* * T* I I
I-------------------- I I I I I I--------------------------I ****** ***** I I
I I I I I I I I
I I --------I I I I-------------I I I I
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*SA* *Victoria* *NSW * *WA* *Queensland* *Tasmania* I I
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* S* * S * * S * * S* * S * * S * I I
***** ******** ******* ***** ************ *********** I I
I I I I I I I I
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The brown colour of the “EUROPEAN UNION” indicates that any legislation provision enacted
by the EUROPEAN UNION is also legally applicable to the Commonwealth of Australia, any
State and/or Territory provided it doesn’t conflict with constitutional powers provided for in the
Commonwealth of Australia Constitution Act 1900 (UK). As such, while the EUROPEAN
UNION can bind ordinary English legislation to any laws the EUROPEAN UNION declares
within its constitutional powers it does not mean that the same is applicable to the Commonwealth
of Australia. This is because weight and measures for example was handed over by the British to
the EUROPEAN UNION but long after it already had handed over to the Commonwealth of
Australia its right for this. Because the Constitution is a “constitution act” the EUROPEAN
UNION cannot for this override and/or interfere with the Commonwealth of Australia
Constitution Act 1900 (UK) legislative powers. It can however provide complimentary powers and
this means that any legislation of the EUROPEAN UNION can be applied within the
Commonwealth of Australia provided it is not attempting to override Commonwealth legislation.
.
It does however mean that the States cannot refer legislative powers to the Commonwealth as to
avoid or circumvent the application, such as the Human rights provisions, because where any
reference of legislative powers occur after the EUROPEAN UNION already legislated upon a
subject that is applicable to the States/Territories then this cannot be avoided. As such, looking
upon EUROPEAN UNION legislation one must then consider when the legislation was put in
place and was this before or after a State referred its legislative powers to the commonwealth. If the
EUROPEAN UNION legislated prior to the State referring its legislative powers (within section
51(xxxvii) then the EUROPEAN UNION legislation remains applicable.
.
QUOTE
Sir JOHN DOWNER.-Of course they do not. We have many statutes here giving remedies
to the subject which, although assented to by the Queen, are by no means in force in England.
We are here establishing a Constitution truly under the Crown, but in many respects vastly
different from the English Constitution. I think this principle is a very proper one. It ought to
be affirmed, and put in the Constitution. It is not a matter of procedure. It is the establishment
of a right which will not exist unless the words are put in. If you want to give the right, you
have to put it in. If you leave it out, you negative the right. If you only give the Parliament
the power to establish the right, then you are, to some extent, negativing the right. I do
not know that it is worth while to have much discussion about the question-Can the
Parliament do this without express words? I quite agree with Mr. Barton that it could not.
Mr. ISAACS.-You think Parliament could not?
Sir JOHN DOWNER.-I think it has not the power.
Mr. ISAACS.-How is it done in Canada? How is it done elsewhere?
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Sir JOHN FORREST.-Put it in the powers of the Parliament.
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.
END QUOTE
.
QUOTE
Mr. BARTON.-Yes; and here we have a totally different position, because the actual
right which a person has as a British subject-the right of personal liberty and protection
under the laws-is secured by being a citizen of the states. It must be recollected that the
ordinary rights of liberty and protection by the laws are not among the subjects confided
to the Commonwealth. 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.
END QUOTE
Again;
QUOTE
Mr. BARTON.-Yes; and here we have a totally different position, because the actual
right which a person has as a British subject-the right of personal liberty and protection
under the laws-is secured by being a citizen of the states. It must be recollected that the
ordinary rights of liberty and protection by the laws are not among the subjects
confided to the Commonwealth. 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
END QUOTE
.
QUOTE
Mr. OCONNOR.-Yes. I am not sure that the clause which the honorable member wishes to
amend does not cut down that power, if it has any effect at all. We were willing to give this
concession, and we have done it. From the comments made upon this matter both in the
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Convention and outside, I do not think that the full extent of the rights given under this power
to regulate commerce are appreciated. Fortunately, we are not without authorities upon the
question. There have been numberless decisions in America as to the rights which are given
by the power to regulate commerce, and, inasmuch as the American Constitution has been
interpreted upon principles of British law applied by the great jurists of America, it is only
reasonable to suppose that our Judges in interpreting our Constitution will be guided very
much by the same principles.
END QUOTE
.
QUOTE Mr. GORDON.-
If irrigation is a national necessity and a national problem-if it is now a matter of regret that
the American Government did not take over the control of the public streams of America-
would not the same regret and the same conditions exist here? Irrigation will be ten times
more a national necessity here than it is in America, and the regret will be ten times greater if
we miss this chance of settling the question, and the Constitution does not provide for the
control of these water channels. And, after all, what are we asking for? We are only asking for
the right that every riparian proprietor enjoys under British law-the right that the man above
him shall neither injure the quality nor diminish the flow of any stream designed for their
mutual benefit and enjoyment. That is a right that is founded deep in natural justice. It cannot
be said that we are asking for anything extraordinary or making extreme demands upon our
follow colonists when we simply seek for that right which every riparian proprietor under
British law enjoys. The tendency of modern legislation is to go even further than the common
law doctrine in declaring that there shall be no exclusive property in running streams.
END QUOTE
.
Hansard 8-2-1898 Constitutional Convention Debates
QUOTE
Mr. O’CONNOR.-I do not think so. We are making a Constitution which is to endure,
practically speaking, for all time. We do not know when some wave of popular feeling
may lead a majority in the Parliament of a state to commit an injustice by passing a law
that would deprive citizens of life, liberty, or property without due process of law. If no
state does anything of the kind there will be no harm in this provision, but it is only right that
this protection should be given to every citizen of the Commonwealth.
END QUOTE
And
QUOTE
Mr. O’CONNOR.-No, it would not; and, as an honorable member reminds me, there is a
decision on the point. All that is intended is that there shall be some process of law by which
the parties accused must be heard.
Mr. HIGGINS.-Both sides heard.
Mr. O’CONNOR.-Yes; and the process of law within that principle may be [start page
689] anything the state thinks fit. This provision simply assures that there shall be some
form by which a person accused will have an opportunity of stating his case before being
deprived of his liberty. Is not that a first principle in criminal law now? I cannot
understand any one objecting to this proposal.

Dr. COCKBURN-Very necessary in a savage race.
Mr. O’CONNOR.-With reference to the meaning of the term due process of law, there is
in Baker's Annotated Notes on the Constitution of the United States, page 215, this statement-
Due process of law does not imply that all trials in the state courts affecting the property of
persons must be by jury. The requirement is met if the trial be in accordance with the
settled course of judicial proceedings, and this is regulated by the law of the state.
If the state law provides that there shall be a due hearing given to the rights of the parties-
Mr. BARTON.-And a judicial determination.

Mr. O’CONNOR.-Yes, and a judicial determination-that is all that is necessary.
END QUOTE
And
QUOTE
Mr. O’CONNOR.-I think that the reason of the proposal is obvious. So long as each
state has to do only with its own citizens it may make what laws it thinks fit, but we are
creating now a new and a larger citizenship. We are giving new rights of citizenship to
the whole of the citizens of the Commonwealth, and we should take care that no man is
deprived of life, liberty, or property, except by due process of law.
END QUOTE
Al-Kateb v Godwin [2004] HCA 37 (6 August 2004)

QUOTE
157.The three cases that I have mentioned[185] illustrate singly, and even more forcefully in
combination, the resistance of the judges of the common law, since early times and until the
present age, to the notion of unlimited executive power to deprive individuals of liberty. In
another important and recent case which can now be added to those that I have cited,
Rumsfeld v Padilla[186], Stevens J (Souter, Ginsburg and Breyer JJ joining)
explained[187]:
"At stake in this case is nothing less than the

essence of a free society. Even more important
than the method of selecting the people's rulers and
their successors is the character of the constraints
imposed on the Executive by the rule of law.
Unconstrained Executive detention for the purpose
of investigating and preventing subversive activity
is the hallmark of the Star Chamber.[188]"
END QUOTE
.
While we have now that the Commonwealth detains unconstitutionally refugees without being
formally charged and without therefore formally being accused within purported

ADMINISTRATIVE DETENTION it must be clear that the Framers of the Constitution

maintained that the federation would be maintained as to “The Commonwealth will come into
existence under this Constitution plus English law,”
.
England and Wales High Court (Administrative Court) Decisions
Aggregate Industries UK Ltd ., R (on the application of) v English
Nature and & Anor [2002] EWHC 908 (Admin) (24th April, 2002)
Neutral Citation Number: [2002] EWHC 908 (Admin)
QUOTE
28. (5) The European Convention for the protection of Human Rights and Fundamental Freedoms (“the
ECHR”). The relevant provisions of the ECHR are as follows.
“Article 6
Right to a fair trial
1. In the determination of his civil rights and obligations…everyone is entitled to a fair and
public hearing within a reasonable time by an independent and impartial tribunal established
by law…
…
PART 11
THE FIRST PROTOCOL
Article 1
Protection of Property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one
shall be deprived of his possessions except in the public interest and subject to the conditions
provided for by law and by the general principles of international law.”
END QUOTE
And
QUOTE
23. Article 18(1) requires the Member States to have taken measures to implement the Birds Directive by 2nd April
1981. However, the precise manner in which SPAs are to provide Annex I species with the protection required
by the Directive is entirely a matter for the discretion of individual Member States. This is in accordance with
Article 24(9) of the EC Treaty, which provides as follows:
“A directive shall be binding, as to the result to be achieved, upon each
Member State to which it is addressed, but shall leave to the national authorities the choice
of form and methods.”
24. The classification of SPAs is a matter for the Secretary of State, not English Nature. However, English
Nature is the Government’s adviser for these purposes and is responsible for identifying sites which qualify
for SPA designation and for dealing with any consultation: see paragraphs 6.4 of Dr Andrew Brown’s witness
statement, as follows:
END QUOTE
And
QUOTE
27. (4) The Human Rights Act 1998 (“the HRA 1998”). So far as material, the relevant provisions of the HRA
1998 are as follows.

“1. The Convention Rights
(1) In this Act “the Convention rights” means the rights and fundamental
freedoms set out in –
(a) Articles 2 to 12 and 14 of the Convention,
(b) Articles 1 to 3 of the First Protocol, …
as read with Articles 16 to 18 of the Convention
3. Interpretation of legislation
(1) So far as it is possible to do so, primary legislation must be read and

given effect in a way which is compatible with the Convention rights.
4. Declaration of incompatibility
(1) Subsection (2) applies in any proceedings in which a court determines

whether a provision of primary legislation is compatible with a Convention
right.
(2) If the court is satisfied that the provision is incompatible with a

Convention right, it may make a declaration of that incompatibility.
5. Right of Crown to intervene
(1) Where a court is considering whether to make a declaration of

incompatibility, the Crown is entitled to notice in accordance with the rules
of court.
(2) In any case to which subsection (1) applies –
(a) a Minister of the Crown …
is entitled …to be joined as a party to the proceedings.
6. Acts of public authorities
(1) It is unlawful for a public authority to act in a way which is

incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if –
(a) as the result of one or more provisions of primary

legislation, the authority could not have acted
differently; or
(b) in the case of one or more provisions of, or made

under, primary legislation which cannot be read or given
effect in a way which is compatible with the Convention
rights, the authority was acting so as to give effect to or
enforce those provisions.

7. Proceedings
(1) A person who claims that a public authority has acted (or proposes to
act) in a way which is made unlawful by section 6(1) may –
(a) bring proceedings against the authority under this Act

in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in

any legal proceedings
but only if he is (or would be ) a victim of the unlawful act.
8. Judicial remedies
(1) In relation to any act (or proposed act) of a public authority which the
court finds is (or would be) unlawful, it may grant such relief or remedy, or
make such order, within its powers as it considers just and appropriate.
…”
28. (5) The European Convention for the protection of Human Rights and Fundamental Freedoms (“the
ECHR”). The relevant provisions of the ECHR are as follows.
“Article 6
Right to a fair trial
1. In the determination of his civil rights and obligations…everyone is entitled to a fair and
public hearing within a reasonable time by an independent and impartial tribunal established
by law…
…
PART 11
THE FIRST PROTOCOL
Article 1
Protection of Property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one
shall be deprived of his possessions except in the public interest and subject to the conditions
provided for by law and by the general principles of international law.”
END QUOTE
And
QUOTE
57. That such is the case is, in my view, clear from the overall approach of their Lordships in Alconbury to the
various European cases to which reference is made in their speeches and from the context of such words in
passages such as the following in the speech of Lord Clyde, at paragraph 149:
“The opening words of article 6(1) are: “In the determination of his civil rights and
obligations or of any criminal charge against him …” Here again a broad interpretation is
called for. The decision need not formally be a decision on the rights. Article 6 will still
apply if the effect of the decision is directly to affect civil rights and obligations. In Le
Compte, Van Leuven and De Meyere 4 EHRR 1, paragraph 46 the court observed: “it must
be shown that the “contestation” (dispute) related to “civil rights and obligations”, in other

words that the “result of the proceedings” was “decisive” for such a right.” The dispute may
relate to the existence of a right, and the scope or manner in which it may be exercised (Le
Compte, at paragraph 49, also Balmer-Schafroth -v- Switzerland (1997) 25 EHRR 598). But
it must have a direct effect of deciding rights or obligations (my emphasis).”
In my opinion, it is clear from the context in which they are used that the words “the decision is directly to
affect”, as used in the fourth sentence, are intended to have the same meaning as “direct effect of deciding”, as
used in the last sentence, i.e. the same as “directly decisive”. Accordingly, I have approached Mr Fookes’
submissions on the same basis, i.e. that where he used an expression such as “directly affected”, it should be
taken as having the same meaning as “directly decisive”.
END QUOTE
.
For this, English law for so far delegated by the EUROPEAN UNION Constitution to the
EUROPEAN UNION then includes EUROPEAN UNION legislative provisions.
.
What we have seen from the above stated that Human Rights are not just those that related to
historical conventions, etc, but also include those which are governed by the EUROPEAN
UNION.
.
HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the
National Australasian Convention)
QUOTE Mr. CLARK.-
for the protection of certain fundamental rights and liberties which every individual
citizen is entitled to claim that the federal government shall take under its protection and
secure to him.
END QUOTE
.
HANSARD18-2-1898 Constitution Convention Debates (Official Record of the Debates of the
National Australasian Convention)
QUOTE Mr. ISAACS.-
The right of a citizen of this great country, protected by the implied guarantees of its
Constitution,
END QUOTE
.
It must be clear that to understand what legal principles are embedded in the constitution one must
first understand the complex system of legislation how they apply in the Commonwealth of
Australia.
.
It should be understood that there is a difference between “constitutional law” and “ordinary law”.
Constitutional laws are those which are created such as for Canada, New Zealand, the former
colonies, the Commonwealth of Australia, etc.
“Ordinary laws” are those which are created within constitutional legislative powers. As such, an
act that legislate say for Australia Post is a law that is subject to the powers granted in the Federal
constitution 51(v) “postal, telegraphic, telephonic, and other like services.”
.
The term “and other like services” means that the Internet communication actually falls within the
legislative powers of the commonwealth even so at the time of federation such a system didn’t exist
and unlikely was anticipated to exist. It is however a system that relies on telecommunication and as
such falls within the term” and other like services”.
Therefore, any law dealing with for example postal or such services are “ordinary laws” while the
constitution is not an ordinary law but is a “constitutional act” that can only be amended by an
“amendment constitution act”.

A constitution cannot be amended by an ordinary act! As such, any ordinary British legislation that
were to conflict with the Federal constitution would be without legal force as the constitution is
beyond interference other then that it can be amended by a Section 128 referendum..
.
The constitution is where the legislative powers originate from.
.
.
QUOTE Mr. BARTON.-
Under a Constitution like this, the withholding of a power from the
Commonwealth is a prohibition against the exercise of such a power.
.
QUOTE
Mr. HIGGINS.-The particular danger is this: That we do not want to give to
the Commonwealth powers which ought to be left to the states. The point is that
we are not going to make the Commonwealth a kind of social and religious power
over us.
END QUOTE
.
HANSARD 1-3-1898 Constitution Convention Debates
QUOTE Mr. GORDON.-
The court may say-"It is a good law, but as it technically infringes on
the Constitution we will have to wipe it out."
END QUOTE
And
QUOTE Mr. BARTON.-
The position with regard to this Constitution is that it has no legislative
power, except that which is actually given to it in express terms or which is
necessary or incidental to a power given.
END QUOTE
.
QUOTE
start page 1020] I think that we ought to be satisfied on these points, and satisfied that if
we leave the clause as it now stands there will, at any rate, be some proviso inserted
which will safeguard the states in the carrying out of any of their state laws over which
the states are to be supreme even under federation.
END QUOTE
.
We must keep in mind the quotation;
QUOTE Mr. BARTON.-
The position with regard to this Constitution is that it has no legislative
power, except that which is actually given to it in express terms or which is
necessary or incidental to a power given.
END QUOTE
.
What this means is that the commonwealth, for example, has no constitutional powers as to water
but does have legislative powers as an incidental power when it comes to preserve the navigation or
rivers. As such, its incidental legislative powers is very limited to stricktly relating to the

maintenance of navigation of rivers. Therefore environment can be included for this part also albeit
if the intent of the legislation is not to maintain the navigation of rivers then there is no legislative
powers.
.
Therefore Section 100 of the constitution limits any legislative powers as to water in that regard. It
means that water rights purchase is not a Commonwealth power. What the Commonwealth can do
however is to limit the State usage of river water and then it is a State legislative power as to how
the water will be used and by whom.
It should be understood that WATER is not owned by anyone once it leaves the property upon
which it fell. You are entitled to harness all water that falls onto your roof but once it leaves your
property it is owned by no one. States cannot sell water because they do not own the water. The
Framers of the Constitution made clear that riparian rights applies (as in Europe) and the High
Court of Australia would have the judicial powers to deal with any dispute between the States as to
water usage and availability.. Despite of this you find South Australia ignored to pursue its rights in
that regard, and my past correspondence to the SA Government underlines they are aware of their
rights in that regard.
.
As such, while the superior legislative powers of the commonwealth to regulate the flow used from
rivers for so far it is to maintain the river level for navigation it is another thing to overtake any
water legislation as it is not a incidental power to navigation required for trade and commerce.
.
The States obviously have no legislative powers as to the maintenance of navigational rivers
because it is a Commonwealth legislative power, albeit incidental, for the maintenance of
navigation for trade and commerce along rivers, but the States do have legislative powers as to non
navigational rivers.
The incidental legislative powers issue will be further canvassed at a later lesson.
.
* Why did you mark State legislative powers as X and Y?
.
**#** Well, the States have legislative powers which remains to be within their domain and then
you have legislative powers which they have or in time will refer to the Commonwealth and when
it becomes so then the legislative powers of the Commonwealth will be expanded by this. But this
needs further scrutiny when we deal with the question; Who can amend the state and/or federal
constitution?
.
* I am puzzled as your first question was about the three Parliaments that can legislate but on your
chart you have the EUROPEAN UNION also and you seem to have forgotten municipal and shire
councils who also enact legislation? Can you explain this?
.
**#** The EUROPEAN UNION doesn’t specifically legislate for the Commonwealth of Australia
but can only legislate for so fat it has been provided with such powers by the United Kingdom.
Then when it does so legislate then it legislation can only be used complimentary to and not in
conflict of the constitution.
.
* Can you please give me an example?
.
**#** Well, lets have a look at Subsection 51(xxvi) of the constitution which states
QUOTE
the people of any race, other than the aboriginal race in any
State, for whom it is deemed necessary to make special laws;

END QUOTE
.
Now the Framers of the Constitution made clear that no international law or treaty could override
this provision. As such neither the EUROPEAN UNION or the UNITED NATIONS can override
this. The Commonwealth of Australia therefore is a racist POLITICAL UNION and all the States
and Territories by this also. Now both the UNITED NATIONS and the EUROPEAN UNION as
far as I am aware of oppose racial discrimination but they cannot overrule the Constitution! Neither
can the EUROPEAN UNION demand that the British Parliament amend the Commonwealth of
Australia Constitution Act 1900(UK) because its legislation can only apply to ordinary legislation
and not constitutional legislation that already exist. However, having stated so it would apply to any
new or amended constitutional legislation the British Parliament were to enact, this as the British
parliament no longer can legislate as it likes because as a signature of the EUROPEAN UNION
constitution it is now bound by its legislations
.
* Are you saying that this would apply to say British legislation governing the Commonwealth of
Australia also?
.
**#** For so far it doesn’t conflict with existing constitutional provisions it would be, yes.
.
* And what about “Local governments” such as municipal councils and shire councils?
.
**#** Before I explain this further let me put the next question to you as then you will get the
answer to this also.
.
.
.
.
Question 3: Who can amend the state and/or federal constitution?
.
* The State or Federal Parliament obviously can because they are amending the constitution every
time. If not by referendum then otherwise as to change how the constitution apply, don’t they?
.
**#** Let me repeat what I have set out previously in published books in the INSPECTOR-
RIKATI® series on certain constitutional and other legal issues;;
QUOTE Chapter 361
Chapter 361 –Local Government
.
* Gerrit, another issue you have addressed, didn’t you?
.
**#** INSPECTOR-RIKATI®, indeed I did see below.
.
Jeff McMullen, ABC, DIFFERENCE OF OPINION

Ph. 1800 502 404
Fax 02 8333 3344

Re; levels of Government
Jeff McMullan
.
FEDERAL GOVERNMENT/CENTRALISED GOVERNMENT
.
Versus
.
STATE GOVERNMENT/LOCAL GOVERNMENT
.
Versus
.
MUNICIPAL COUNILS/LOCAL GOVERNMENT
.
While in today’s language when we refer to “LOCAL GOVERNMENT” we refer to “LOCAL
COUNCILS” rather then “MUNICIPAL COUNCILS” constitutionally (considering the
Commonwealth of Australia Constitution Act 1900 (UK) we have a “CENTRALISED
GOVERNMENT” with a “FEDERAL PARLIAMENT” and a “LOCAL GOVERNMENT”
with a “STATE PARLIAMENT”.
When one refers to the Federation and State Governments then “LOCAL GOVERNMENT” refers
to State Governments. When we refer to internal State matters then “LOCAL GOVERNMENT” is
“MUNICIPAL COUNCILS” being “LOCAL GOVERNMENTS”.
.
When dealing with the TWO levels of Governments, being Federal and State Governments, then
the de facto third level of Government “MUNICIPAL COUNCILS” is not to be taken as a level of
Government.
.
It must be clear that the Commonwealth of Australia has no constitutional powers to alter State
legislative powers/boundaries, etc at its own will. However, States can alter “MUNICIPAL
COUNCILS” boundaries as much as it likes. No referendum is needed for this.
Local councils are not true Governments but delegated bodies that act as a Government under the
authority of a State Government. However, State Governments do not act under the Authority of the
Federal Government, rather that the Federal Government acts under the authority of State
Governments.
The Federal Government cannot take anything from the States that the States doesn’t want to give
on legislative powers, whereas the States (subject to a Section 123 of the Constitution State
referendum) can and it desire hand over whatever legislative powers it has, to the Federal
Government.
Take for example the issue of “CITIZENSHIP”. Neither the Commonwealth of Australia or
“MUNICIPAL COUNCILS” have legislative powers as to declare/define “CITIZENSHIP”. It is
and remains to be a constitutional powers reserved for the State Parliaments. See also Hansard 2-3-
1898 Constitution Convention Debates. Hence the Australian Citizenship Act 1948 for so far it
purports to define/declare “CITIZENSHIP” is ULTRA VIRES.

To abolish State governments would mean that such powers would have to be handed over to either
a Federal Parliament or to “MUNICIPAL COUNCILS”.
Obviously “MUNICIPAL COUNCILS” could not deal appropriately with this and a Federal
government would not be able to deal with this appropriately. Why you may ask? Because
“CITIZENSHIP” relates to a persons POLITICAL STANDING. To hand “CITIZENSHIP”
over to the Commonwealth of Australia would be basically to vandalise the very protection’s build
in the Commonwealth of Australia Constitution Act 1900 (UK).
This correspondence cannot set out in an elaborate manner all that is relevant to this, but those
interested can always read my various books published in the INSPECTOR-RIKATI® series.
The usage of the term “local government” during the Constitution Convention Debates were in
general referring to State Governments, below some examples.
WE EITHER HAVE A CONSTITUTION OR WE DON’T!
The Federal Government cannot have it both ways, argue it has constitutional rights to implement
certain legislation and on the other hand ignore constitutional constrains when it doesn’t suit it.
What is badly needed and well overdue is the creation of an OFFICE OF THE GUARDIAN, a
constitutional council, that advises the Government, the People, the Parliament and the Courts as to
constitutional powers and limitations.
Currently there is to much nonsense going on where even judges do not even comprehend
constitutional limits and fancy themselves to amend the Constitution by backdoor manner
(judgments) while those politicians in the Parliament know next to nothing as to what is
constitutionally permissible or not.
Lets get realistic and before anyone comes up with what is wrong with any government level let
them first learn what is constitutionally applicable. After all, if they have it wrong from onset and
do not comprehend how matters are constitutionally then what are they talking about?
Please note the comments below, including an e-mail to Mr. Kevin Rudd.
DEBATES OF THE CONFERENCES (OFFICIAL RECORD.)

.
MONDAY, FEBRUARY 10, 1890.
Mr. DEAKIN.-
I believe, by the Bill which will shortly grant Western Australia the local government which
all Australasia has long wished her, to confine the new colony to the territory south of the 26th
parallel, while the territory north of that is to be governed by Western Australia under the
control of Ministers in England.
And
Mr. DEAKIN.-
With regard to work which might be better done by a Federal Government than by the
separate Governments of the colonies, it is questioned whether, when the Convention comes
to consider all the issues raised (which I do not enter into), it will not be decided that the
larger part of the work should be left to the local Governments. It is argued that public works,
for instance, would be more satisfactorily carried out by the local Governments than by a
Government more removed.
And
Mr. DEAKIN.-

But what is clearer is, that the great cable and mail lines between this continent and the old
world would inevitably pass under the control of the Federal Government. There is one land
line already across the continent of Australia, which it might be necessary to hand over to the
Central Government, And there is a cable projected towards North America, which will
greatly affect the interests of the inhabitants of Australasia and the Pacific islands and our
countrymen across the sea.
And
Mr. DEAKIN
Leaving these details, which I have only ventured to touch upon in a fragmentary way, and
sympathizing with the strong stand made by Mr. Playford on the supposition that the powers
and privileges of the different local Governments were to be assailed, and being as prepared
as he is to do my utmost in their defence, I believe that we would act idly unless we admitted
from the first that in the creation of a Federal Legislature and a Federal Executive we meant
them to be the organs of a Sovereign state-a state which would not be a figment or shadow,
nor exist only on the sufferance of the local Parliaments, but which would draw its authority
straight from the people of the different colonies, obtaining from them the plenary powers to
be exercised by it within certain limits. The great lesson taught by Mr. Bryce in his
magnificent work is that the strength of the United States Government lies in this, that
although it is a Federal Government, under which each State of the Union is theoretically and
actually independent in respect to all concerns of local life and legislation, it has
nevertheless sovereign authority in that it is gifted with powers which act directly and
immediately on every citizen of the entire country. It is not dependent on any state for one
cent of its revenue, nor upon state officers for any act of administration , nor upon State
Courts for any decision in its favour. Except that the state legislators elect the members of
the Senate there is no connexion between the states and their Central Government. The
Union is not concerned to have their support, nor does it seek their aid for the forces it
maintains. It is a Sovereign state acting directly, without any intermediary, upon the
citizens from which it springs. (Hear, hear.) I am glad that view is concurred with. I am glad
to think that we shall see a Sovereign state in Australasia which will be able to act directly
through its judiciary, and in other ways, on every citizen within its borders, and be in every
respect and in all its powers the equal of any state in the world. Were we to aim at crippling,
maiming, or enfeebling the local Legislatures, we would aim at doing something not only
wholly unnecessary for our purpose, but something which would actually injure the Federal
Government we are seeking to establish. There should be and must be nothing antagonistic
between a Federal Government supreme in its sphere and local Governments supreme in
their spheres. It is perfectly true that there must be a division of authority, that some of the
powers of the local Governments will have to be transferred to the Federal Government, but
the judges of the powers to be given to either body must not be either the local Governments
with their jealousies, or the Central Government with its ambitions. The judgment must come
from those whom both exist only to serve-from the people themselves. So far both the local
and central authorities must be regarded as on the same platform, because as it is in the
national interest that there should be a differentiation of the powers of Government into
central and local Governments so in settling that division only national interests ought to
be considered. What we have to study is how to give the central authority all the powers
which can be best exercised by such a body to the distinct advantage of the whole of the
people. Those powers it ought to have; but it is not to be [start page 27] entitled to acquire
them in such a way as would enfeeble the different local Governments, on whose healthy life
its successful existence must largely depend. As well might it be attempted to enfeeble
municipal institutions in order to aggrandize Parliament, the fact being that parliamentary
Government depends very much for its smooth and easy working upon the smooth and easy

working of the minor local bodies. There are an infinite number of issues which no
central Parliament could deal with, but which necessarily belong to the local Legislatures,
and which they should be able to deal with in the present manner. For my part, I think we
should seek to strengthen the local Legislatures by every possible means. We should, as Mr.
Playford says, leave them every power it is possible for them to exercise in the interests of the
whole community. If more power can be given them for that purpose than is conceded
elsewhere, let it be granted, but let us give the Central Government just as emphatically a
full and unfettered power so far as the interests of the whole people demand it.
Mr. PLAYFORD: And that it would be given back to the various local governments in
proportion to the population of their respective colonies. If we consider for a moment that the
federal government must have an executive, and will have to provide the necessary payment
for the federal forces, for the federal executive, and for various other matters, we must see that
they will have to derive a revenue in some way or other; and the most difficult question, I
think, which the members of the Convention will find, when they come to deal with it, will be
the adjustment of that financial part of, if I may so call it, the trouble between the federal
government on the one hand, and the local governments on the other. It may be necessary
that, in certain instances, we should be paid back by the federal government a proportion of
the money that we, as local governments, derive from customs. The

Mr. DEAKIN.-
Now, a few words as to the bounties. The Federal Parliament, representing the federal people,
will be as sensitive to the appeals of the people for assistance as any local Parliament has
been. The great federal industries of Australia-fruit-growing, dairying, agriculture, and
horticulture-will be no less an object of concern to representatives in the Federal Parliament
than they have been to representatives in the various local Parliaments indeed, the improved
circumstances and more independent position of the Federal Government will allow them to
deal with the development of these industries with a more liberal hand than the local
Governments can deal with them.
And
Mr. TRENWITH.-
We find, within the area of our state Legislatures, that we have local interests continually
presented to Parliament from various parts of the respective states. In Victoria we have a most
complete system of local government, under which particular localities legislate for their
local requirements, and manage very largely their local concerns in regard to roads and
bridges, and so forth. They are continually coming to Parliament asking for some special
concessions. Very often these special concessions involve the expenditure of large sums from
the general revenue, but yet we find that whenever these requests are made they are almost
invariably passed with the greatest possible rapidity. Parliament is always inclined to act
generously to sections of the community over which it has to govern, and we have a right to
assume that when we have created a Federal Parliament, and local considerations from any
of the states are submitted to it, it will treat them in much the same manner as the state
Parliament treats matters from municipal councils within the area of their government
now.
Again;

Parliament is always inclined to act generously to sections of the community over which it has
to govern, and we have a right to assume that when we have created a Federal Parliament, and
local considerations from any of the states are submitted to it, it will treat them in much
the same manner as the state Parliament treats matters from municipal councils within
the area of their government now.

Sir GEORGE TURNER (Victoria) presented a petition from the Melbourne and
Metropolitan Board of Works praying that the Convention would preserve the right of the
Queen's Australian subjects to appeal to the Privy Council, and moved that it be received and
read.
The motion was agreed to.

The CLERK read the petition, as follows:-
To the Right Honorable the President and the Members of the Australasian Federal
Convention, in session assembled.
The petition of the Melbourne and Metropolitan Board of Works humbly sheweth-That your
petitioner is a body corporate created by Act of the Parliament of Victoria, composed of
representatives elected by the councils of the city of Melbourne and the municipal
councils of the other 23 cities, towns, boroughs, and shires of the metropolis of the said
colony, which comprises an area of about 160 square miles, with a population of more than
451,000, who will be responsible for rates to be levied by your petitioner.
That the principal duties assigned to your petitioner are to manage and extend the water
supply of the said metropolis, and to undertake the sewering and draining thereof.
That in relation to the former of the said duties your petitioner is charged with liability to
the Government of Victoria for a sum of £2,359,156, the balance of money lent for
construction of the waterworks by creditors who are mostly resident in Great Britain. And for
extension of the said works, and to sewer and drain the metropolis, your petitioner has
borrowed £3,893,580 upon debentures, the holders of a large proportion of which reside in the
United Kingdom.
Date: Tue, 28 Aug 2007 01:23:27 +1000 (EST)

"Gerrit Schorel-Hlavka" <inspector_rikati@yahoo.com.au>
From:
Yahoo! DomainKeys has confirmed that this message was sent by yahoo.com.au.
Subject: No parliament under a federation can be "sovereign Parliament"
To: Kevin.Rudd.MP@aph.gov.au
CC: inspector_rikati@yahoo.com.au
Kevin.Rudd.MP@aph.gov.au,
Kevin Rudd, Leader of Her Majesty's Opposition
.
AND TO WHOM IT MAY CONCERN
.
Kevin,
In regard of your reported comments about seeking a REFERENDUM as to transfer legislative
powers from the States to the Commonwealth of Australia (regarding health matters), I do wish to

point out that Section 128 actually requires a state referendum to be held first in regard of any
legislative powers to be transferred to the Commonwealth of Australia, and once this has been
obtained then it requires another Federal Referendum (involving the same States). As such Section
128 requires actually two referendums. The Commonwealth Parliament cannot propose any
amendment of the Constitution unless the proposed amendment has been already accepted by the
relevant State themselves by a State referendum.
Section 123 Referendum applies to where a State Parliament desires to have an amendment of its
State Constitution, it desires to refer legislative powers to the Commonwealth (such as within
Subsection 51(xxxvii) of the Constitution) and/or it desires to transfer part of its State territory to
the Commonwealth of Australia or otherwise alter its State boundaries.
It should be understood that State constitutions apply for the whole of the territory of that State and
as such when the State refers legislative powers to the Commonwealth of Australia it in effect acts
as an alteration of its constitutional powers as it diminish its constitutional powers and as such can
only be approved or vetoed by the State electors.
.
.
QUOTE:-
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.
END QUOTE
.
"Subject to this constitution" means it must be interpreted to the intentions of the Framers of the
Constitution allowing for amendments made with approval by referendums.
With other words, the NSW Colonial Constitution Act effectively became amended by the
Commonwealth of Australia Act 1900 (UK) by legislatives powers belonging to all Colonies being
invested in the Federation (Commonwealth of Australia) which were specifically listed in the
Commonwealth of Australia Constitution Act 1900 (UK).
By colonial referendums this was approved by all Colonies electors.
Therefore, since Federation no State Parliament could amend its own State Constitution as it no
longer was a "sovereign Parliaments" but a "constitutional Parliament", as like the Federal
Parliament. This means that the State Parliament (as like the Federal Parliament) can only propose
to the State electors to amend the State constitution and then the State electors must decide to
approve or to VETO this proposed amendments(s).
.
Hence, ask which State Parliament since Federation actually pursued this way to amend its State
constitution?
.
You may find that NSW amended its State Constitution in 1902 but was it with the required
approval of the State electors by State referendum?
You find that the State of Victoria purportedly amended its State Constitution without a State
referendum in 1975, etc.
Likewise so in regard of any other subsequent purported State Constitution amendments!
.
As the Framers of the Constitution refused to give any legislative powers to the Commonwealth of
Australia as to define/declare "citizenship" (Hansard 2-3-1898 Constitution Convention Debates)
then as I successfully argued in my previous cases, the Australian Citizenship Act 1948 is ULTRA
VIRES for so far it purports to define/declare "citizenship.
Hence, not a single police officer/lawyers/judge/politician is validly appointed as they all require
"citizenship" for this!

.
All court convictions made subsequently to the amended constitutional are all unconstitutional and
ULTRA VIRES, for so far they rely upon unauthorised amendments of a State Constitution!
It is pleasing to me, as a "CONSTITUTIONALIST" that finally we have a person as the Leader of
Her Majesty’s Opposition who indicates to seek approval from the electors by way of referendum.
That is if you were to pursue changes in that regard.
In my books in the INSPECTOR-RIKATI® series, I have canvassed that we should have an
OFFICE OF THE GUARDIAN, a constitutional council, that advises the Government, the
People, the Parliament and the Courts as to what is constitutional permissible and the limits of
powers.
Basically, anyone convicted of serious crimes, even terrorism, can walk free because of the lack of
qualifications by all concerned, including lack of "CITIZENSHIP", and that is, so to say, merely
the tip of the iceberg.
The fact that I succeeded in the Court that the commonwealth of Australia has no constitutional
powers to compel anyone to register and/or to vote may underline how absurd it is that legislation
that is ULTRA VIRES is being enforced nevertheless.
And, the Joint Senate Committee on Electoral Matters for years refused to attend to these issues
despite having been notified by me about this time and again.
.
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)
.
PLEASE NOTE THERE IS MORE REGARDING THIS ISSUE OF "CONSTITUTIONAL
PARLIAMENTS" BUT I WILL BE NICE TO YOU AND NOT QUOTE ALL RELEVANT
STATEMENTS FOR NOW. IN ANY EVENT THEY ARE PUBLISHED IN MY BOOKS!
.
Gerrit
Mr. G. H. Schorel-Hlavka
MAY JUSTICE ALWAYS PREVAIL®
107 Graham Road
Viewbank, 3084, Victoria, Australia
Ph/Fax 03-94577209

International 61394577209
"CONSTITUTIONALIST" and Author of books in the INSPECTOR-RIKATI® series on certain

constitutional and other legal issues.
See also website; http://schorel-hlavka.com and
Blog; http://au.360.yahoo.com/profile-ijpxwMQ4dbXm0BMADq1lv8AYHknTV_QH
See also;
.
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. 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.
END QUOTE
End quote Chapter 361
.
* Now I get it, there is no such thing as a level of government being municipal councils or shire
councils they are mere bodies for residents who can make certain rules for the local community but
not laws, is that it?
.
**#** That is correct.
.
* And parliaments cannot amend their constitutions because it requires a State and/or federal
referendum for this. Am I correct?
.
**#** That is correct.
.
.
.

.
.
Question 4; Who can stop an unconstitutional or suspected unconstitutional Bill to proceed in
the Parliament from being voted upon?
.
* That is simple the government as they have the majority in the Parliament.
.
**#** Actually, the government has no constitutional power in the parliament. The government is
the Federal Executive and the Parliament is the legislator. The government may have the majority in
either or both Houses of parliament but it still cannot dictate anything in the parliament unless there
is a vote in which its members had the majority.
.
Let say the government want a law passed that 12 year olds can vote in federal elections as it might
be attractive to teenagers to do so, however because Section 41 of the constitution states;
QUOTE
Right of electors of States
No adult person who has or acquires a right to vote at elections for
the more numerous House of the Parliament of a State shall, while
the right continues, be prevented by any law of the Commonwealth
from voting at elections for either House of the Parliament of the
Commonwealth.
END QUOTE
it means that unless 12 year olds are deemed to be “adults” it cannot occur and more over if it
cannot obtain the majority of those members voting in each House of the Parliament then it cannot
get the bill through either. While obviously many Members of Parliament may be members of the
political party or parties in power it doesn’t mean they will vote with what the government desires.
They call it crossing the floor when they vote against what the Government desires or they can
abstain from voting to cause the government party to loose the vote.
.
Also consider the following; Objection to validity of a Bill.
.
QUOTE Mr. DEAKIN.-
. The arguments of the Hon. Mr. Carruthers appear to have fallen on deaf ears, but, [start page
2042] as he pointed out, if there be embedded in the Constitution a direct enactment that no
proposed laws for taxation including more than the one subject of taxation, and no proposed
Appropriation Bill going outside the ordinary services of the year, can be legally dealt with,
both the Speaker of the House of Representatives and the President of the Senate would
not only be authorized, but would be imperatively required, in the discharge of their
duty, to rule such a measure out of order at any stage of its existence.
END QUOTE
And
QUOTE
Sir JOHN DOWNER.-Now it is coming out. The Constitution is made for the people
and the states on terms that are just to both.
Mr. DEAKIN.-It is made for the lawyers under this clause.
Sir JOHN DOWNER.-I do not think so. If you say "Trust the Parliament," no
Constitution is required at all; it can simply be provided that a certain number of gentlemen
shall be elected, and meet together, and, without limitation, do what they like. Victoria would

not agree to that. But there is a desire to draw the very life-blood of the Constitution, so far as
the states are concerned, by this insidious amendment, which would give the Houses
authority from time to time to put different constructions on this most important part of
the Constitution. I hope we will do as we have done in many instances before, in matters that
have been much debated-adhere to the decision we have already arrived at.
END QUOTE
And
QUOTE Mr. HOLDER.-
Surely there would be at least one representative out of the whole Senate and one
member of the House of Representatives, who would have individuality enough, and
strength enough, to get up and challenge the order of any particular measure which
might be disorderly under this clause of the Constitution.
Mr. ISAACS.-They would not all sit on the same side of the House.
Mr. HOLDER.-I should think not. They would not all be Ministerialists, or all members of
the Opposition, or all members of any particular party; and I cannot believe that any Bill
which contained anything objectionable at all could pass through both Houses of the Federal
Legislature without finding some one member of either of the two Houses who would rise
to a point of order, and have such a Bill laid aside of necessity as being out of order under
this provision.
END QUOTE
And
QUOTE
Mr. CARRUTHERS (New South Wales).-It is worth while considering the stages that a
proposed law has to go through, and the opportunity afforded to a member of either House or
a member of the Executive to call attention to any infraction or infringement of the
Constitution. It does not require a majority of the members of the House of Representatives to
insist that the Constitution shall be obeyed in the matter of procedure; it only requires one
solitary member to rise to a point of order, and the Speaker has to give a legal
interpretation of the rules of procedure. It only requires one member of the Senate to call
the attention of the President to the fact that a Bill is introduced contrary to the
Constitution for that proposed law to be ruled out of order. It does not require a
majority of the states to insist that the Constitution shall be obeyed, because a majority
of the states cannot by resolution infringe the Constitution. Neither House could pass the
standing order which would give the majority power to dissent from the Speaker's or
President's ruling. The standing orders only confer certain explicit power. They give no power
to either House to pass an order which would enable its members to amend the Constitution.
END QUOTE
And
QUOTE
Mr. OCONNOR (New South Wales).-I quite agree with Mr. Trenwith that the object of the
provision is to protect the [start page 2010] Senate from being coerced by the House which
has the power of the purse primarily. But the question between us is not whether you should
take away that protection, but whether you should allow the Senate itself to give up, whether
by accident or design, on any particular occasion, the protection which the Constitution has
implanted there for its benefit. The protection of this Constitution is given, not for the Senate
for the time being, but for the people of the states whom the Senate represents. The
question really is whether, for the purposes for which this provision is designed, that is to say,
the protection of the people of the states, as states, it is necessary that this provision should

stand which makes a Bill illegal if these provisions are not complied with, or whether it
should be made merely a matter of parliamentary order between the two Houses?
.
Mr. OCONNOR.-That is begging the question. Even under the circumstances mentioned
by the honorable and learned gentleman, if the rights we are giving under this Constitution to
the House which represents the states are to be of any value at all, we should not put it into
the power of a majority in the House of Representatives or in the Senate to bargain them
away, or to give them away at their will.
END QUOTE
And
QUOTE Mr. OCONNOR.-
But these difficulties can be overcome by the proper consideration of the terms of the
Constitution. I submit that the question raised here is a very much more important one than it
seems to be thought by some honorable members. I think it is the very essence of the
Constitution that we should preserve the form which has been adopted here, and that we
should make the necessity of its adoption imperative upon the Government and the
Parliament, subject to the liability of their acts being declared invalid by the Supreme Court in
the event of the directions of the Constitution not being followed.
END QUOTE
And
QUOTE
Mr. REID.-My answer is, how could the House of Representatives put more than one
subject of taxation into a proposed law? If it will be possible for the House of
Representatives to put two subjects of taxation into a proposed law, in spite of the clear
words of the Constitution, it will be equally possible for a Taxation Bill to be originated in
the Senate without any one taking any notice of it.
END QUOTE
And
QUOTE
Mr. BARTON (New South Wales).-I wish to make a few observations with regard to the
objection, not, I hope, in [start page 2014] any captious spirit. I quite see the stand-point from
which Mr. Isaacs and others have addressed themselves to the question. But it seems to me
that the argument which has been raised by Mr. Isaacs as to this last sub-section of clause 55,
is really an argument for greater clearness in the Constitution; because it seems to be admitted
that if the words of the Constitution are placed beyond dispute, then the confusion to which
my honorable and learned friend alludes cannot arise. Consequently, the real meaning of the
argument is this-"I could not say what I have said if your Constitution were absolutely
clear." This is an objection to the form in which the provision stands, and an objection to
form only, and not to substance, because it is admitted that these matters can only arise by
way of confusion, and consequently it must be admitted that they can only arise where there is
room for confusion in the Constitution.
.
Mr. BARTON.-There is thus upon the face of the law the important material which is
appropriated for the decision of the court-the very transgression beyond legal provision,
the very matter which the court can take in hand, and with regard to which it may say-
"This must stop, it is illegal." But if the Senate were to originate a Tax Bill, or to amend
an Appropriation Act or Tax Bill, and that Bill were to be passed into an Act; if the
Senate were to pass a Bill imposing a burden on the people, and that Bill were to be

passed-in either of these cases it would be impossible for any legal tribunal to say, upon
the face of the law, whether any such infringement of the Constitution had taken place.
Mr. REID.-So that confusion that can be covered up need not be provided against?
Mr. BARTON.-That is not so at all. I do not see the slightest relevancy in that remark, or
any approach to relevancy. So that it becomes perfectly clear that one matter is a matter of
procedure and that to give a legal tribunal the power of interfering with regard to that which is
inherently a matter of procedure would be an unwarrantable power of interference with
Parliament to give to any court. I am astonished at it being claimed that anything should be
done which would give the court power to instigate an investigation of mere parliamentary
procedure. But those matters which happen under clause 55 do not turn on questions of
procedure, inasmuch as if an infraction of the Constitution occurs, it is apparent upon
the face of the Bill which makes the infraction, and the material is there for judicial
determination. That is the difference between the two clauses, and it is of no use trying to
mix up matters of procedure with matters of actual inviolability apparent on the face of the
laws, and to say that you are to apply the same conditions to one as to the other.
END QUOTE
And
QUOTE Mr. BARTON.-
Let us examine the matter a little. Is it right that there should be tacking? There is not an
honorable member in the Convention who will not say that it is wrong. This clause in itself is
a clause to prevent tacking, therefore, it is a clause to do right-for whom?-for the people
themselves. What is the good of our arguing this question on the basis of the rights, inter
se, of the two Chambers, when the whole life of both these Chambers is that they are
servants of the public? For whom are these protections in clause 55 introduced? Is it for the
Senate they are introduced? No, it is for the public.
END QUOTE
.
Therefore it only takes one single Member of Parliament to oppose a Bill on constitutional grounds
and it cannot then proceed unless the constitutional objection has been defeated.
.
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Chapter Constitutional Lessons: Lets Try The First Question

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Chapter 000X Page 1

Chapter constitutional lessons

Chapter 000X Page 1

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*SA+ Northern Territory* *Victoria* *NSW * *WA* *Queensland* *Tasmania* I

* But what about Section 109 then?

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Chapter 000X Page 4

Chapter 000X Page 5

Chapter 000X Page 6

Chapter 000X Page 7

Mr. ISAACS.-You think Parliament could not?

Sir JOHN DOWNER.-I think it has not the power.

Mr. ISAACS.-How is it done in Canada? How is it done elsewhere?

Chapter 000X Page 8

Sir JOHN FORREST.-Put it in the powers of the Parliament.

Chapter 000X Page 9

Mr. HIGGINS.-Both sides heard.

Chapter 000X Page 10

Dr. COCKBURN-Very necessary in a savage race.

Mr. BARTON.-And a judicial determination.

Al-Kateb v Godwin [2004] HCA 37 (6 August 2004)

"At stake in this case is nothing less than the

Chapter 000X Page 11

ADMINISTRATIVE DETENTION it must be clear that the Framers of the Constitution

Right to a fair trial

THE FIRST PROTOCOL

“A directive shall be binding, as to the result to be achieved, upon each

Chapter 000X Page 12

“1. The Convention Rights

(a) Articles 2 to 12 and 14 of the Convention,

(b) Articles 1 to 3 of the First Protocol, …

as read with Articles 16 to 18 of the Convention

(1) So far as it is possible to do so, primary legislation must be read and

(1) Subsection (2) applies in any proceedings in which a court determines

(2) If the court is satisfied that the provision is incompatible with a

5. Right of Crown to intervene

(1) Where a court is considering whether to make a declaration of

(2) In any case to which subsection (1) applies –

(a) a Minister of the Crown …

is entitled …to be joined as a party to the proceedings.

6. Acts of public authorities

(1) It is unlawful for a public authority to act in a way which is

(2) Subsection (1) does not apply to an act if –

(a) as the result of one or more provisions of primary

(b) in the case of one or more provisions of, or made

Chapter 000X Page 13

(a) bring proceedings against the authority under this Act

(b) rely on the Convention right or rights concerned in

but only if he is (or would be ) a victim of the unlawful act.

Right to a fair trial

THE FIRST PROTOCOL

Chapter 000X Page 14

Chapter 000X Page 15

Chapter 000X Page 16

Chapter 000X Page 17

Jeff McMullen, ABC, DIFFERENCE OF OPINION

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Re; levels of Government

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WE EITHER HAVE A CONSTITUTION OR WE DON’T!

DEBATES OF THE CONFERENCES (OFFICIAL RECORD.)

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SA+ Northern Territory Victoria NSW WA Queensland Tasmania I