20191031-Mr G. H. Schorel-Hlavka O.W.B. To Victorians - Local Government, Local Council Rating Review-SUBMISSION

Page 1
1
2
3 Victorians - Local Government, Local Council "Rating" Review 31-10-2019
4 Email: rating.review@delwp.vic.gov.au
5
6 SUBMISSION
7 Sir/Madam,
8 One of the problems I constantly encounter is that one makes a submission to
9 whomever who have already predetermined what the end result shall be regardless of what the
10 submission might be about. Many a person is therefore deterred from making submissions as it is
11 considered a sheer waste of time. Nevertheless I will pursue this submission so that the review
12 panel may prove it is not merely a band of zombies dealing with submissions but actually are
13 open minded.
14
15 I am a CONSTITUTIONALIST and a (now retired) Professional Advocate and have been
16 successful in defeating the Commonwealth and the States such as in compulsory voting. County
17 Court of Victoria, Case numbers T01567737 & Q10897630 on 19 July 2006.
18
19 Never mind my self professed Crummy English, as English is not my native language, the issue
20 is, as I have made clear to numerous judges, what the legal principles are in the constitution.
21 As the saying is “Ignorance is no excuse” and as such those involved in the review cannot ignore
22 my submission merely because they may lack the ability to understand/comprehend what it is
23 about as they can always seek me to explain it orally, if the need is for this. One cannot sanction
24 unconstitutional “rates” by mere ignorance.
25
26
27 This submission will deal with constitutional issues, this is because unless any legislation
28 including review of legislation is within constitutional permissible parameters it is a sheer waste
29 of time for any review to be held. A review cannot make something constitutionally permissible
30 where the legislation itself is unconstitutional.
31 .
32 As I have extensively written in the past to the then Premier of NSW Kristine Keneally (Now a
33 Senator representing the state of N.S.W. in Federal Parliament) I hold it better to quote writings
34 as such.
35
36 Whatever mechanism there exist in reviews it obviously has never provided for a mere
37 decency/courtesy of a council to respond appropriately to request/writings.
38 .
39 I own properties in both Banyule City Council and Buloke Shire Council and both failed for
40 some years to even respond to my request to have any unconstitutional rates and other charges
41 refunded. While they may ignore this as long as they desire in law I am entitled to it.
42 Buloke Shire Council is slugging me about $400 a year on garbage collection for a property no
43 one has resided at for some 6 years! And despite of this continue to charge for this.
44
31-10-2019 Page 1 © Mr G. H. Schorel-Hlavka O.W.B.
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1 So, let us look at the validity of charges.

2 .
3 As shown below the High Court of Australia in Sydney Council (NSW) v Commonwealth held
4 that councils are charging rates that are a form of State delegated land taxation.
5
6 The State were created within Section 106 of the Commonwealth of Australia Constitution act
7 1900 (UK) and so “subject to this constitution”.
8
9 At that time municipal/shire councils were since federation entitled to charge rates as a form of
10 delegated land taxation and the High Court of Australia in 1904 clearly acknowledged this.
11 .
12 Municipal/Shire Councils being known for collecting garbage, etc, obviously had to have a
13 financial source to be able to pay for the expenses doing so.
14
15 Are you so far still with me?
16
17 Well, on 11 November 1910 the Commonwealth commenced with the establishment of the Land
18 Taxation Office, and by the constitutional embedded legal principles this means that the States
19 no longer could charge Land taxation and obviously by this municipal/shire councils lost the
20 financial resources to charge for rates.
21 However, when the High Court of Australia commenced to operate it conveniently denied for
22 any person to use the Hansard records of the Constitutional convention Debates, so that the
23 former delegates now in power could manufacture whatever they desired from the constitution.
24 Hence, despite that since 10 November 1910 the States and so the municipal/shire councils no
25 longer could charge State Land Taxation they continue to do so.
26
27 This was an elaborate fraudulent racket upon local communities. And over time councils not
28 satisfied with raising the (unconstitutional) rates then branches out to charge for say garbage
29 collection this even so that was originally part of the rates. As such councils started to do double
30 dibbing.
31
32 Then again it seems the legal profession was incompetent to understand/comprehend this
33 massive fraud.
34
35 There appears to be a misconception that when the federation provided for “concurrent”
36 legislative powers this then means that the States as well as the Commonwealth can legislate on
37 any subject. Reality is that concurrent legislative powers only is possible UNTIL the
38 Commonwealth commences to legislate upon a certain subject matter. Once the Commonwealth
39 does so then it becomes EXCLUSIVE Commonwealth legislative powers and the States have to
40 retire from this field, and not just in regard of taxation!
41
42 HANSARD 9-2-1898 Constitution Convention Debates
43 QUOTE
44 Mr. HIGGINS.-No, because the Constitution is not passed by the Parliament.
45 END QUOTE
46
47 Hansard 2-2-1898 Constitution Convention Debates
48 QUOTE Mr. DEAKIN (Victoria).-
49 The record of these debates may fairly be expected to be widely read, and the observations to which I
50 allude might otherwise lead to a certain amount of misconception.
51 END QUOTE
52
Page 3

2 QUOTE
3 Mr. BARTON.-I was going to explain when I was interrupted that the moment the Commonwealth
4 legislates on this subject the power will become exclusive.
5 END QUOTE
6
8 QUOTE
9 Mr. BARTON (New South Wales).-If this is left as an exclusive power the laws of the states will
10 nevertheless remain in force under clause 100.
11 Mr. TRENWITH.-Would the states still proceed to make laws?

12 Mr. BARTON.-Not after this power of legislation comes into force. Their existing laws will, however,
13 remain. If this is exclusive they can make no new laws, but the necessity of making these new laws will be
14 all the more forced on the Commonwealth.
15 END QUOTE
16
18 QUOTE
19 My only desire is to give power to the Federal Parliament to achieve a scheme for old-age
20 pensions if it be practicable, and if the people require it. No power would be taken away
21 from the states. The sub-section would not interfere with the right of any state to act in
22 the meantime until the Federal Parliament took the matter in hand.
23 END QUOTE
24
25 Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian
26 Convention)
27 QUOTE
28 Mr. ISAACS.-We want a people's Constitution, not a lawyers' Constitution.
29 END QUOTE
30
31 HANSARD18-2-1898 Constitution Convention Debates (Official Record of the Debates of the National
32 Australasian Convention)
33 QUOTE Mr. ISAACS.-
34 The right of a citizen of this great country, protected by the implied guarantees of its Constitution,
35 END QUOTE
36
38 QUOTE
39 Mr. BARTON.- Of course it will be argued that this Constitution will have been made by the Parliament of
40 the United Kingdom. That will be true in one sense, but not true in effect, because the provisions of this
41 Constitution, the principles which it embodies, and the details of enactment by which those principles
42 are enforced, will all have been the work of Australians.
43 END QUOTE
44
45 The following will also make clear that the Framers of the Constitution intended to have CIVIL
46 RIGHTS and LIBERTIES principles embedded in the Constitution;
47 HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National
49 QUOTE Mr. CLARK.-
50 the protection of certain fundamental rights and liberties which every individual citizen is entitled to
51 claim that the federal government shall take under its protection and secure to him.
52 END QUOTE
53
55 QUOTE
56 Mr. HIGGINS.-Suppose the sentry is asleep, or is in the swim with the other power?
57
58 Mr. GORDON.-There will be more than one sentry. In the case of a federal law, every member of a
59 state Parliament will be a sentry, and, every constituent of a state Parliament will be a sentry.
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1 As regards a law passed by a state, every man in the Federal Parliament will be a sentry, and the whole
2 constituency behind the Federal Parliament will be a sentry.
3 END QUOTE
4
6 QUOTE Mr. BARTON.-
7 Under a Constitution like this, the withholding of a power from the
8 Commonwealth is a prohibition against the exercise of such a power.
9 END QUOTE
10 .
12 QUOTE
13 Mr. HIGGINS.-The particular danger is this: That we do not want to give to
14 the Commonwealth powers which ought to be left to the states. The point is that
15 we are not going to make the Commonwealth a kind of social and religious power
16 over us.
17 END QUOTE
18 .
20 QUOTE Mr. GORDON.-
21 The court may say-"It is a good law, but as it technically infringes on
22 the Constitution we will have to wipe it out."
23 END QUOTE
24 And
27 The position with regard to this Constitution is that it has no legislative
28 power, except that which is actually given to it in express terms or which is
29 necessary or incidental to a power given.
30 END QUOTE
31 .
33 QUOTE
34 start page 1020] I think that we ought to be satisfied on these points, and satisfied that
35 if we leave the clause as it now stands there will, at any rate, be some proviso inserted
36 which will safeguard the states in the carrying out of any of their state laws over
37 which the states are to be supreme even under federation.
38 END QUOTE
39 .
40 Hansard 16-2-1898 Constitution Convention Debates (Official Record of the Debates of the National
42 QUOTE Mr. ISAACS (Victoria).-
43 In the next sub-section it is provided that all taxation shall be uniform throughout the Commonwealth.
44 An income tax or a property tax raised under any federal law must be uniform "throughout the
45 Commonwealth." That is, in every part of the Commonwealth.
46 END QUOTE
47 .
50 QUOTE
51 Mr. MCMILLAN: I think the reading of the sub-section is clear.
52 The reductions may be on a sliding scale, but they must always be uniform.
53 END QUOTE
54
55 And
58 QUOTE
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1 Sir GEORGE TURNER: No. In imposing uniform duties of Customs it should not be necessary for the
2 Federal Parliament to make them commence at a certain amount at once. We have pretty heavy duties in
3 Victoria, and if the uniform tariff largely reduces them at once it may do serious injury to the colony. The
4 Federal Parliament will have power to fix the uniform tariff, and if any reductions made are on a
5 sliding scale great injury will be avoided.
6 END QUOTE
7 .
9
11 But it is a fair corollary to the provision for dealing with the revenue for the first five years after the
12 imposition of uniform duties of customs, and further reflection has led me to the conclusion that, on the
13 whole, it will be a useful and beneficial provision.
14 END QUOTE
15
16 And
19 On the other hand, the power of the Commonwealth to impose duties of customs and of excise such as it may
20 determine, which insures that these duties of customs and excise would represent something like the average
21 opinion of the Commonwealth-that power, and the provision that bounties are to be uniform throughout
22 the Commonwealth, might, I am willing to concede, be found to work with some hardship upon the states
23 for some years, unless their own rights to give bounties were to some extent preserved.
24 END QUOTE
25
27 QUOTE Sir SAMUEL GRIFFITH:
28 2. Customs and excise and bounties, but so that duties of customs and excise and bounties shall be uniform
29 throughout the commonwealth, and that no tax or duty shall be imposed on any goods exported from one
30 state to another;
31 END QUOTE
32
34 QUOTE The CHAIRMAN.-
35 Taxation; but so that all taxation shall he uniform throughout the Commonwealth, and that no tax or duty
36 shall be imposed on any goods passing from one state to another.
37 END QUOTE
38
40 QUOTE Mr. BARTON (New South Wales).-
41 That all the words after the word "taxation" where it is first used be struck out, and that the following words
42 be substituted:-"but not so as to discriminate between states or parts of states, or between goods passing from
43 one state to another."
44 END QUOTE
45
46 It should be clear that so called “rates” (unconstitutional land taxation) is not uniform throughout
47 the Commonwealth and as such even if the Commonwealth somehow were to legislate that
48 municipal/shire councils could on its behalf apply delegated land taxation powers the snag would
49 be none did so in a UNIFORM manner throughout the Commonwealth.
50 .
51 There is neither any legal mechanism in the constitution to enable Commonwealth legislative
52 powers to be reverted back to the states. As such, regardless the Commonwealth having
53 terminated its land legislative provisions it nevertheless remains to be an EXCLUSIVE
54 Commonwealth legislative power. The only option that could have been followed was a
55 REFERENDUM to be held within Section 128 to permit the States to apply land taxation and so
56 delegate this power to the municipal/shire councils. As this however never eventuated it cannot
57 be applied.
58

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1 Councils wanted to expand their power base then accepted more and more from the State
2 Government to be managed with the consequences that local communities were more and more
3 financially burdened. As obviously the State government only delegated powers so instead of it
4 funding services from taxation it now could get councils to be stupid/silly enough to raise further
5 finances from local communities.
6 And as the example “G001039_Whats_on_my_rate_bill_V7” that can be downloaded from
7 https://engage.vic.gov.au/rating-review
8
9 Does the State Government set my rates?
10 No. Councils individually set rates for their municipalities every year through their annual
11 budget process. The State Government only sets the annual rate cap, which is the maximum
12 amount a council can increase general rates and municipal charges
13
14 Do councils decide the valuation of my property?
15 No. This is a State Government process. All properties in Victoria are revalued annually
16 under the supervision of the Victorian Valuer General. The process is subject to audits, and
17 you may appeal your valuation within 2 months of receiving your rates notice.
18
19 The rates are calculated on the property improved value.
20 .
21 Obviously one has to ask what about those Ministry of Housing properties, are those tenants also
22 burdened to pay their share?
23
24 And, the very notion of people improving their lives through hard work and persistency to seek
25 to earn sufficient to become self dependent is undermined when the improvements at the
26 property owners cost are then in effect punished with added unconstitutional land taxation.
27
28 As for the garbage collection ample of councils have been charging landowners for the cost of
29 collections such as to avoid landfill by recycling only then to dump the recycling in landfill.
30 A gross mismanagement but somehow nothing was done to address this issue.
31 As I recall it way back in about 1988 I then complained to the local council that animal
32 carcasses, motor vehicle bodies, and even recycling carton was all dumped together on a local tip
33 by the council staff and put on fire. Wait there is more! Even hospital waste was dumped there.
34 And Sea Lake garbage tip being at the end of a lake where the salt was recovered when the water
35 receded this means the lot ended up contaminating the salt people were using on their meals, etc.
36 .
37 So, let us cut out the crap that councils are acting in the interest of local communities as anything
38 but that.
39 Councils are in my view heartless and without soul as they are slugging people for whatever as
40 after all they need to have monies for their junk trips overseas, etc.
41 .
42 Buloke Shire Council even got a special allowance to raise an added $56,000 on rates, albeit
43 wasted $18,000 on litigation against me, as the trail judge refused any orders of cost. Council
44 was deceiving property owners finding them such as not having mowed the nature-strip this even
45 so this is beyond its powers. After the court case council then dropped the reference of nature
46 strip. However it never refunded the monies to others of their unlawful scamming.
47 .

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1 So, let it be clear any review should be a real review consider everything and start from base and
2 not merely hold that regardless if it is unconstitutional (so unlawful) we have gotten away with it
3 for so long and well might just continue to do so.
4 .
5 Any person who deliberately defies the constitution in my view is a TRAITOR!
6
7 You cannot claim rights of taxation being land taxation or otherwise when you defy the
8 constitutional embedded legal principles. After all the constitution is the principle law!
9
10 What therefore need to be done is to establish what, if any of municipal/shire council charges are
11 constitutionally permissible. If as my submission is that the so called “rates” are unconstitutional
12 then no review could justify this to nevertheless to be approved. The Review cannot legally
13 justify what in the first place is unconstitutional since 11 November 1920.
14
15 QUOTE 30-8-2010 CORRESPONDENCE
16 Premier Kristina Keneally 31-8-2010
17 <thepremier@www.nsw.gov.au>
18 .
19 Cc: * Mr John Brumby, Premier, john.brumby@parliament.vic.gov.au
20 * Mr Robert Pincevic
21 .
22 Re: State Land tax - etc
23 AND TO WHOM IT MAY CONCERN
24 Kristina,
25 I has been more then 4 weeks since I last wrote to you regarding State land taxes being
26 unconstitutional since the Commonwealth of Australia commenced to legislate in regard of
27 LAND TAX and the High Court of Australia underlined this in its judgment.
28 As I stated in my previous 31 August 2010 correspondence to you; http://www.austlii.edu.au/cgi-
29 bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=%22thi+act+and+all+law+made+by+the+parliament%22#fn5
30 0
31 QUOTE
32 Constitutional interpretation
33 The starting point for a principled interpretation of the Constitution is the search for the
34 intention of its makers[51].
35 END QUOTE
36 .
37 Within Section 51 of the constitution both the States and the Commonwealth have certain
38 legislative powers however as the Framers of the Constitution stated:
41 QUOTE Mr. REID
42 The object is this, that for some time to come it will not be possible for the Federal
43 Legislature to pass laws on these subjects, and it is necessary to have some laws on them-
44 the state laws if they exist-until federal laws are enacted; but the moment a federal law is
45 passed on any one of these subjects, under the provision under the head of "States" the
46 federal law prevails over the state law.
47 END QUOTE
48 .
50 QUOTE
51 The Hon. R.E. O'CONNOR (New South Wales)[3.18]: The moment the commonwealth exercises the
52 power, the states must retire from that field of legislation.
53 END QUOTE
54 .
56 QUOTE Mr. REID:
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1 We must make it clear that the moment the Federal Parliament legislates on one of those points
2 enumerated in clause 52, that instant the whole State law on the subject is dead. There cannot be two
3 laws, one Federal and one State, on the same subject. But that I merely mention as almost a verbal
4 criticism, because there is no doubt, whatever that the intention of the framers was not to propose any
5 complication of the kind.
6 END QUOTE
7 .
9 QUOTE
10 The Hon. R.E. O'CONNOR (New South Wales)[3.18]: We ought to be careful not to load the
11 commonwealth with any more duties than are absolutely necessary. Although it is quite true that this
12 power is permissive, you will always find that if once power is given to the commonwealth to legislate
13 on a particular question, there will be continual pressure brought to bear on the commonwealth to
14 exercise that power. The moment the commonwealth exercises the power, the states must retire from
15 that field of legislation.
16 END QUOTE
17 .
19 QUOTE
20 Mr. OCONNOR.-Directly it is exercised it becomes an exclusive power, and there is no doubt that it
21 will be exercised.
22 END QUOTE
23 For constitutional purposes it isn’t relevant that the Commonwealth of Australia aborted any land
24 taxes since 1952 by abolishing the legislation as it still was and remained to be an exclusive
25 federal legislative power
26 .
27 I thank your office for having provided me with a 13 September 2010 response:
28 QUOTE
29 CMU10-16940
30 13 September 2010
31 Mr Gerrit Schorel-Hlavka
32 schorel-hlavka@schorel-hlavka.com
33
34 Dear Mr Schorel-Hlavka
35 I write in response to your recent email to the Premier concerning land tax.
36 As the matter you have raised concerns the administration of the Treasurer, the Hon
37 Eric Roozendaal MLC, your email has been forwarded to the Treasurer for attention.
38 You may be sure that your letter will receive close consideration.
39 Yours sincerely
40 David Swain
41 for Director General
42 END QUOTE
43 .
44 As I stated in my previous correspondence also:
45 QUOTE
46 As a CONSTITUTIONALIST and Author of books in the INSPECTOR-RIKATI® series on certain
47 constitutional and other legal issues my issue is foremost what is constitutionally appropriate and for this
48 direct myself to you.
49 .
50 I do point out that I am not in any capacity acting for Mr Robert Pincevic but he is aware that I am writing
51 to you and reveals his identity.
52
53 I was contacted by Mr Robert Pincevic (NSW resident) regarding the 22 June 2010 Land Tax issue
54 correspondence from Richard Brown for Tony Newbury Chief Commissioner of State Revenue correctly
55 pointed out that within s.106 of the constitution (The Commonwealth of Australia Constitution Act 1900
56 (UK)), the States “subject to this constitution” are entitled to legislate in matters. I personally cannot see any
57 difficulties then with any NSW legal provisions then to legislate in 1902 (provided the NSW constitution was
58 validly amended) in regard of land taxes, however what Richard Brown seems to ignore is the very term
59 “subject to this constitution” meaning that s.51 only permits the States to legislate as to Land Tax until the
60 Commonwealth legislate for this and then the moment the Commonwealth does it no longer is a legislative
61 power for the States. As such where the Commonwealth commenced to legislate and in 1910 became the
62 dominant legislator I have the view that then the States no longer had this legislative power and the fact that
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1 the Commonwealth in 1952 abolished land taxes cannot revert the legislative powers back to the States as the
2 constitution doesn’t allow for this.
3 END QUOTE
4 .
5 I am well aware that the Governments (State/Territorial/Federal) may seek to rely upon legal
6 advice of lawyers who may or may not claim to be constitutionalist but the fact is that since 1956
7 none of them appeared to have understood that the States/Territories couldn’t legislate as to
8 LAND TAXES. This is because lawyers are so to say trained to think in a certain manner and
9 this prohibit them to be open minded and consider all relevant issues, not just about
10 State/Territorial land Taxes as for example the commonwealth in s.388 of the CEA1918 uses
11 “averment” where as on 4 August 2005 I successfully defeated the commonwealth and the
12 Court ordered the commonwealth to file and serve all evidence it sought to rely upon this as the
13 court upheld my constitutional submission that the commonwealth cannot interfere in the legal
14 processes of a State Court by dictating that “AVERMENT” applies. Actually the ATO uses
15 “averment” in the Supreme Court of NSW even so as I stated this is unconstitutionally
16 interfering in State judicial matters, regardless if the State Court exercises federal jurisdiction.
17 .
18 It is my understanding that the ATO in legal proceedings relies upon the Taxation
19 Administration Act section 8ZL which is as follows:
20 QUOTE S.8ZL(1)
21 [Prima facie evidence] In a prosecution for the prescribed taxation offence, a statement or averment
22 contained in the information, claim or complaint is prima facie evidence of the matter so stated or averred.
23 END QUOTE
24 .
25 QUOTE S.8ZL(2)
26 [Application of section] This section applies in relation to any matter so stated or averred although:
27 (a) evidence in support or rebuttal of the matter stated or averred, or of any other matter, is given; or
28 (b) the matter averred is a mixed question of law and fact, but in that case, or of any other statement or
29 averment is prima facie evidence if the fact only.
30 END QUOTE
31 .
32 We now look brat the provision of the CEA1918;
33 Commonwealth Electoral Act 1918
34 QUOTE
35 388 Averments deemed to be proved
36 In any prosecution in a court of summary jurisdiction in respect of a contravention of the
37 provisions of this Act or the regulations relating to compulsory enrolment or compulsory
38 voting, instituted by an officer or by any person acting under the direction of an officer, the
39 averments of the prosecutor contained in the information or complaint shall be deemed to be
40 proved in the absence of evidence to the contrary.
41 END QUOTE
42 .
43 I understand that Raelene Susan Vivian Deputy Commissioner of Taxation filed a 1 May 2009
44 Affidavit (On 4 May 2009) in which she refers to:
45 QUOTE
46 The plaintiff pleads her cause of action, and avers and states
47 END QUOTE
48 .
49 These pleadings were then responded upon by the Respondents to in general deny the claims.
50 In point 4 of this Affidavit it was stated
51 QUOTE
52 The defendants failed to pay income tax for the years of tax ending 30 June 2002, 30 June 2003, 30 June
53 2004, 30 June 2006, 30 June 2007 and 30 June 2008 on or before the relevant due dates.
54 END QUOTE
55 .
56 It is in my view terrible that even the Supreme Court of NSW isn’t even aware that
57 Commonwealth of Australia legislative provisions cannot interfere with State jurisdictional
58 matters!
Page 10

2 QUOTE
3 Mr. CLARK: What we want is a separate federal judiciary, allowing the state judiciaries to remain
4 under their own governments.
5 END QUOTE
6 .
8 QUOTE Mr. SYMON.-
9 Then, I think myself, some confusion may arise in consequence of the reference to the state in the words
10 "Proceedings to be taken against the Commonwealth or a state in all cases within the limits of the judicial
11 power." Now, it does not appear to me that we ought to interfere in any way with the functions of a
12 state to regulate the proceedings which it, as a quasi-independent political entity, may prescribe for the
13 regulation of its own legal proceedings.
14 END QUOTE
15 .
16 As a CONSTITUTIONALIST I obviously have to consider the intentions of the Framers of the
17 Constitution where the ATO is about “Income Tax” of all sources, the same can be argued about
18 the issue of the word “INCOME”:
20 QUOTE
21 Sir GEORGE TURNER: One might depend entirely on the other.
22 Mr. BARTON: That would not be a case of two separable propositions.
23 Sir GEORGE TURNER: Take the Land and Income Tax Bill.
24 Mr. BARTON: They are proposals which should never be in one Bill together. If there are two
25 propositions more dissimilar in their incidence than a land and an income tax they are hard to suggest.
26 One of them-the income tax-comes from the earnings or profits of the people, or of that portion of the
27 people who, I was almost guilty of saying, are to "hump the swag"-at any rate they are to bear the
28 burden. But the other-if a tax on the unimproved value of land-has no relation to the earnings or the
29 thrift or the solvency of the person owning the land, and taxes that land on its unimproved value
30 whether the owner makes a profit out of it or not. I am not attacking these forms of taxation, but I do
31 say this: that it is impossible to imagine two taxes more diverse their very root, and I think Sir George
32 Turner could not have selected a better example of two taxes which ought not to be included in one Bill.
33 I venture to say this is undoubtedly cutting down the right of the Senate to protect the State, and preventing
34 them from voting upon matters that should be put separately. I believe most of these matters have been well,
35 and fairly dealt with in the Bill of 1891.
36 END QUOTE
37 .
38 If therefore profits of land holdings is not an income and cannot be put in the one Bill then what
39 is the Tax Assessment Act 1936 about, so the unconstitutional State land tax assessments?
40 It should be noted;
43 The words "trade and intercourse" are almost unbounded in their meaning when you apply them to the
44 relations of trade and commerce, and, under the proper heads, Baker's Annotated Constitution is full of
45 instances showing how far-reaching these words are. Then, take the words "throughout the Commonwealth."
46 The meaning of those words is not restricted to between the states; they refer to every part of the
47 Commonwealth, and I would refer honorable members to earlier portions of the Bill where the same meaning
48 will have to be given to them. If honorable members will turn to clause 52, which deals with the powers of
49 the Parliament, they will find that in sub-section (2) the Federal Parliament is empowered to legislate in
50 regard to customs, excise, and bounties, which shall be uniform "throughout the Commonwealth." That is,
51 within every state and every part of a state. "Throughout the Commonwealth" is the largest expression that
52 can be used. In the next sub-section it is provided that all taxation shall be uniform throughout the
53 Commonwealth. An income tax or a property tax raised under any federal law must be uniform
54 "throughout the Commonwealth." That is, in every part of the Commonwealth.
55 END QUOTE
56 .
57 And while on this and any attempts by the states/Territories and/or even the Commonwealth to
58 legislate “retrospectively” the following ought to be noted:
Page 11
1 .
3 QUOTE
4 Mr. BARTON: I will look into these matters. Notwithstanding the able draughtsmanship of the 1891 Bill,
5 there are several clauses not quite in their right place in it, and it would be well to alter their order. The
6 Drafting Committee will look into that matter, and at the end of the proceedings will ask hon. members to
7 give their attention to such alterations as they may suggest. It will be better to transpose some of the clauses.
8 With reference to Sir Edward Braddon's amendment, which is put in a better form than that suggested
9 by Mr. Symon, I do not think there is any actual necessity for it. I find in Maxwell on "Interpretation
10 of Statutes," 1st edition, page 192, this passage:
11 It is where the enactment would prejudicially affect vested rights, or the legal character of past Acts,
12 that the presumption against a retrospective operation is strongest. Every Statute which takes away or
13 impairs vested rights acquired under existing laws, or create a new obligation, or imposes a new duty,
14 or attaches a new disability in respect of transactions or considerations already past, must be
15 presumed, out of respect to the Legislature, to be intended not to have a retrospective operation. Thus
16 the provision of the Statute of Frauds, that no action should be brought to charge any person on any
17 agreement made in consideration of marriage, unless the agreement were in writing, was held not to
18 apply to an agreement which had been made before the Act was passed. The Mortmain Act, in the
19 same way, was held not to apply to a devise made before it was enacted. So it was held that the Act of 8
20 & 9 Vict., c. 106, which made all wagers void, and enacted that no action should be brought or
21 maintained for a wager, applied only to wagers made after the Act was passed.
22 Sir GEORGE TURNER: There is no doubt about those cases, I should say.
23 Mr. BARTON: In subsequent editions these examples are multiplied. The principle underlying the
24 matter is this: that a court in construing an Act assumes that Parliament never intended to do a thing
25 which is unjust. I am quite sure that Mr. Symon will agree that the provision is not necessary.
26 Mr. SYMON: Hear, hear.
27 END QUOTE
28 .
30 QUOTE
31 Mr. HOLDER.-I have two interjections to answer. I will deal first with that of the Attorney-General of
32 Victoria. In reply to his statement that this makes the law altogether retrospective, I simply say that the
33 proposal is to make the law retrospective in this sense: That during the interval throughout which it was,
34 according to the judgment of the court, ultra vires, the decision of the people afterwards could make it intra
35 vires.
36 Mr. ISAACS.-That might make persons criminals who were not otherwise criminals. It might not
37 have been an offence to do a certain thing if the High Court declared the law to be ultra vires, but if
38 that law was made intra vires from an antecedent date, all the persons who did that thing might be
39 subject to punishment.
40 END QUOTE
41 .
44 Unless the honorable member is willing to amend his clause in that respect, we should only complicate
45 matters, and if retrospective operation were given to it we should be lending ourselves to what would be,
46 quite unintentionally on the part of the honorable member, a gross injustice.
47 END QUOTE
48 .
50 QUOTE
51 Mr. ISAACS.-But they have already passed a law, and I take it that if you can get an absolute majority of
52 both Houses directing the referendum, there is no practical difference between that and an absolute majority
53 again passing the law. Because they virtually passed the law as far as they could. Therefore, it seems to me
54 there is no advantage gained from the stand-point of desiring a better means of getting an amendment of the
55 Constitution. Then, I feet that it is open to the destructive criticism that it makes the law retrospective, and
56 after the court, possibly the Privy Council, has decided that the law is ultra vires, and people have acted on
57 that decision, being compelled to, act on that decision, or being compelled to refrain from acting on the
58 decision of the court, as the law is positive or negative; then we should have under this referendum a law
59 made operative as from the time of its original passing, and penalties, both personal and pecuniary, might be
60 incurred through no fault of the individuals who had incurred them. That seems to me to be a defect to which
61 we cannot close our eyes.

Page 12
1 Mr. WISE.-Besides, it would punish everybody who took the advice of a man who interpreted the law
2 properly.
3 Mr. ISAACS.-It compels everybody who has obeyed the decision of the higher courts to act, or refrain
4 from acting. That is a position which none of us would willingly get into, and the retrospective action is
5 wrong.
6 END QUOTE
7 .
8 I am concerned that despite my writing of 31 August 2010 I am given the understanding that the
9 State of NSW State land Tax office nevertheless has persisted in proceedings with its conduct
10 against the Pincevic’s even so it was also provided by Mr Robert Pincevic with a copy of my 31
11 August 2010 correspondence to you and the response of 13 September 2010 on your behalf.
12 .
13 I am well aware that State/Territorial land taxes involves an estimate $35 billion a year
14 throughout the Commonwealth of Australia but in all fairness I have urged for many years for all
15 Governments to consult the OFFICE-OF-THE-GUARDIAN about constitutional matters and
16 where then a State/Territory failed to do so then it has inflicted any harm upon not just itself but
17 also to its residents. It cannot be any excuse therefore for any State/Territorial Government
18 having to refund all unconstitutional claimed LAND TAXES as the Framers of the Constitution
19 made clear that any unconstitutional taxes had to be refunded.
20 Neither can it be held that somehow the States/Territories were colleting LAND TAXES on
21 behalf of the Commonwealth because the Commonwealth is bound to raise any taxes for “the
22 whole” of the Commonwealth. As the States/Territories collected LAND TAXES in dependent
23 of each other and as such no LAND TAX was equal throughout the Commonwealth of Australia
24 then it cannot be deemed that the States/Territories therefore purportedly collected LAND
25 TAXES on behalf of the Commonwealth.
26 .
27 Neither can the Commonwealth apply “retrospective” legislation as to try to secure past land
28 taxes paid since 1952 as being Commonwealth land taxes.
29 .
30 Neither can the States/Territories invoke any kind of retrospective legislation because the states
31 are within s.106 “subject to this constitution” and hence the legal principles embedded in the
32 constitution are also binding upon the States/Territories.
33 .
35 QUOTE Mr. OCONNOR (New South Wales).-
36 Of course, when I speak of a state, I include also any territory occupying the position of quasi-state,
37 which, of course, stands in exactly the same position.
38 END QUOTE
39 .
41 QUOTE
42 Mr. ISAACS (Victoria).-What I am going to say may be a little out of order, but I would like to draw the
43 Drafting Committee's attention to the fact that in clause 52, sub-section (2), there has been [start page 1856] a
44 considerable change. Two matters in that sub-section seem to me to deserve attention. First, it is provided
45 that all taxation shall be uniform throughout the Commonwealth. That means direct as well as indirect
46 taxation, and the object I apprehend is that there shall be no discrimination between the states; that an
47 income tax or land tax shall not be made higher in one state than in another. I should like the Drafting
48 Committee to consider whether saying the tax shall be uniform would not prevent a graduated tax of any
49 kind? A tax is said to be uniform that falls with the same weight on the same class of property, wherever it is
50 found. It affects all kinds of direct taxation. I am extremely afraid, that if we are not very careful, we shall get
51 into a difficulty. It might not touch the question of exemption; but any direct tax sought to be imposed
52 might be held to be unconstitutional, or, in other words, illegal, if it were not absolutely uniform.
53 END QUOTE
54 .
55 Where the State land tax office is assessing Mr Robert Pincevic as to his “INCOME” then again
56 as like Commissioner of Taxation (ATO – for the commonwealth) any income must be
57 understood as to the meaning of the Framers of the Constitution and not that income is what is
Page 13
1 derived from direct and indirect taxable financial benefits, as this offend the Constitution that
2 only one subject matter can be addressed in any taxation legislation!
3 As such the State’s also fall foul upon how it assesses the unconstitutional State LAND TAXES
4 being on “INCOME” derived from different sources.
5 .
6 As you may be aware there are thousands of ratepayers in clashes with municipal and shire
7 councils as to the paying of rates, and this too is a matter then may soon so to say blow up in the
8 face of State and Territorial governments, as I have published articles about this in the past. It is
9 therefore essential that the State government reconsiders how it goes about and in particular how
10 it pursues objectors who in the end all along may be proven to be right in certain issues but
11 because the State/Territorial government rely upon legal advisors who may know next to nothing
12 about what is constitutionally applicable then the State government, other then to provide so to
13 say a gold mine for the lawyers to keep them in a job it doesn’t at all act appropriately for the
14 general public. Instead of having if not thousands then hundreds of court cases about rates, etc, I
15 view it would be far more sensible if the State/Territorial governments were to reconsider its
16 positions and perhaps call an inquiry to assess what is actually constitutionally appropriate. I
17 will not delve into all the finer details in this correspondence about it but can assure you that you
18 might be in the end horrified citizens have been unduly so to say crucified in courts where they
19 all along had a rightful position in regard of certain objections but even the judiciary was blind to
20 it because after all they were all trained in the same manner and so not open-minded to what is
21 constitutionally applicable and justified.
22 .
23 QUOTE R. v Sussex Justices, ex parte McCarthy (1924)
24 'Justice should not only be done, but should manifestly and undoubtedly be seen to be done.'
25 END QUOTE
26 .
27 TAYLOR v. TAYLOR [1979] HCA 38; (1979) 143 CLR 1 (22 August 1979)
28 Similarly in Commissioner of Police v. Tanos (1958) 98 CLR 383, at p 395, Dixon C.J. and
29 Webb J. said that
30 QUOTE
31 it is a deep-rooted principle of the law that before anyone can be punished or prejudiced in his person or
32 property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of
33 being heard.
34 END QUOTE
35 .
36 Hansard 31-1-1898 Constitution Convention Debates QUOTE Mr. SOLOMON.-
37 We shall not only look to the Federal Judiciary for the protection of our interests, but also for the just
38 interpretation of the Constitution:
39 END QUOTE
40 .
42 QUOTE Mr. SOLOMON.-
43 Most of us, when we were candidates for election to the Federal Convention, placed great stress upon it
44 as affording a means of bringing justice within easy reach of the poor man.
45 END QUOTE
46 .
48 QUOTE Mr. OCONNER (New South Wales).-
49 Because, as has been said before, it is [start page 357] necessary not only that the administration of
50 justice should be pure and above suspicion, but that it should be beyond the possibility of suspicion;
51 END QUOTE
52 .
53 The following will also make clear that the Framers of the Constitution intended to have CIVIL
54 RIGHTS and LIBERTIES principles embedded in the Constitution;
56 QUOTE Mr. CLARK.-
57 for the protection of certain fundamental rights and liberties which every individual citizen is entitled to
58 claim that the federal government shall take under its protection and secure to him.
Page 14
1 END QUOTE
2 .
3 HANSARD18-2-1898 Constitution Convention Debates (Official Record of the Debates of the National
6 The right of a citizen of this great country, protected by the implied guarantees of its Constitution,
7 END QUOTE
8 .
9 What we now have is a considerable disaster where ordinary people were dragged through the
10 courts, perhaps had their property garnished to pay alleged unpaid land taxes where in the end
11 the State government could have avoided all this rot to some extend if it had years ago consulted
12 the OFFICE-OF-THE-GUARDIAN as to constitutional matters. Innocent people in the process
13 had their lively and perhaps also their lives destroyed and all because State/Territorial
14 governments failed to appropriately consider constitutional matters, and lawyers involved simply
15 look at matters from their point of view rather from a constitutional point of view what is just
16 and proper.
17
18 As an example; there was the recent Victorian Colosimo case where I (as a professional
19 advocate, Attorney and CONSTITUTIONALIST) took over from the lawyer and despite more
20 then 20 opponent lawyers being involved in the case proved to the trial judge that Mr Colosimo
21 actually all along had not at all been in breach of law, even so he was by then was on his 6th
22 contempt hearing. As a matter of fact, the prosecutor had instituted the legal proceedings
23 incorrectly as the proceedings, by legislative provisions, only could be instituted in a magistrates
24 court, something all those lawyers never realised over all the years of their litigation against Mr
25 Colosimo. Also, I got rid of the Administration orders over Mr Colosimo showing that the expert
26 witnesses simply didn’t know what they were talking about because their (medical) assessments
27 all had been based upon Mr Colosimo being convicted of contempt, where as in fact I proved he
28 had not been even formally charged with contempt let alone convicted. As such, what we saw
29 was with all those lawyers involved, including the Office of the Public Advocate, Victorian
30 Legal Aid none of the lawyers could comprehend you first needed a formally charge a person
31 before you can hold all those contempt hearings let alone tell a defendant he could be imprisoned
32 for up to 5 years! His case also related to taxes, FEE SIMPLE, etc. Despite that a County court
33 judge Her Honour Harbison was presiding over matters she was acting as a Deputy President of
34 VCAT (Victorian civil and Administrative Tribunal) and by this in conflict of her legal duties as
35 an IMPARTIAL judicial officer of the County Court of Victoria also serving a master being a
36 State government as a judge but then with the obligation to act in accordance with the
37 governments policy as previously VCAT member Helen Gibson made clear to Mr Colosimo.
38 .
40 QUOTE
41 Mr. O'CONNOR: You cannot ask a judge to serve two masters.
42 END QUOTE
43
44 In my view no judicial officer can be a judge of a Court of law and also be a judge on a Tribunal
45 as the Framers of the constitution referred to a retired judge to be dealing with a tribunal.
46 Likewise so with a Court of disputed Returns as judges acting on a tribunal are causing
47 confusion to the general community who belief to be appearing before a judge in his impartial
48 position as a judge of a court of law but actually ending up being before a judge of a Tribunal
49 how is acting in the capacity of “persona designata”
50 .
52 QUOTE Mr. HIGGINS:
53 I think it is advisable that private people should not be put to the expense of having important
54 questions of constitutional law decided out of their own pockets.
55 END QUOTE
Page 15
1 .
2 Yet we find that throughout the Commonwealth of Australia people are seeking to stand up for
3 their constitutional rights and Mr Robert Pincevic is one of many, and are rebuked for this and
4 severely castigated in the process as if they do not know what they are talking about where in
5 fact the courts themselves and the lawyers appearing before it generally haven’t got a clue what
6 they are talking about because their training during legal studies has prevented them to
7 understand and comprehend the true meaning and application of the (federal) constitution.
8 Hence, let the State of NSW commence to hold an inquiry so as to curtail all this litigation
9 about State, municipal and shire rates and for once and for all try to get some proper
10 understanding by all concerned what is really constitutionally applicable.
11 .
12 As I understand it there are various groups who so to say are sucking people of their hard earned
13 monies to protest against rates/taxes and then are no where to be found when a person ends up in
14 court with the objections and no matter how justified the objectionist might be the courts lack the
15 knowledge and the skill to appropriately consider constitutional matters because it will be
16 claimed that as there is legislation then so be it and this is precisely unconstitutional as the courts
17 must consider any objection to legislation as to upon constitutional basis and not merely accept
18 the word of the government lawyers for it.
19 .
20 I will not go into further details about this at this time but save to state that I am horrified as to
21 the numerous cases that are clogging the courts and I know very well that this got nothing to do
22 with JUSTICE because eventual more then likely the courts will rule against the objector, not
23 because the objector might be wrong but because we lack any proper system to advise the
24 Government, the People, the courts and the Parliament as to what is constitutionally applicable.
25 Hence the OFFICE-OF-THE-GUARDIAN so to say has taken up the baton to do so, not for
26 individual cases but to try to stop this rot and so in the interest of all concerned. In the meantime
27 I view that all State/Territorial government should call a halt to all litigations and have them all
28 stayed pending matters to be appropriately considered. Obviously time is of an essence that such
29 inquiry/investigation is not unduly protracted as you cannot have State/Territorial governments
30 and/or municipal/shire councils running out of funds while at the same time you cannot persist in
31 litigation against any citizen who might be constitutionally be in his right!.
33 QUOTE
34 Mr. BARTON.- Of course it will be argued that this Constitution will have been made by the
35 Parliament of the United Kingdom. That will be true in one sense, but not true in effect, because the
36 provisions of this Constitution, the principles which it embodies, and the details of enactment by which
37 those principles are enforced, will all have been the work of Australians.
38 END QUOTE
39 .
41 QUOTE
42 Mr. BARTON.- Having provided in that way for a free Constitution, we have provided for an
43 Executive which is charged with the duty of maintaining the provisions of that Constitution; and,
44 therefore, it can only act as the agents of the people.
45 END QUOTE
46 .
47 EITHER WE HAVE A CONSTITUTION OR WE DON’T! (As you may say; We either
48 have a constitution or we don’t!)
49 MAY JUSTICE ALWAYYS PREVAIL® has been operating (without government funding) as
50 a special lifeline service and as such I am well aware of the mental, emotional and financial
51 hardship caused upon so many to the extend that people contemplate to commit suicide and yet
52 at least I view it to be so, the State/Territorial government can resolve many of the issues by
53 holding a proper inquiry so that finally many misconceptions, etc, can be so to say laid to rest.
54 After all, every suicide cost the community also a lot of money and so why not spend the money

Page 16
1 in a far better manner and hold an open and transparent inquiry and in the process serve the
2 constituents as they all along are entitled upon?
3 .
4
5
MAY JUSTICE ALWAYS PREVAIL®
.
6 Our name is our motto!

7 .
8
9 Awaiting your response, G. H. Schorel-Hlavka (Gerrit)
10 END QUOTE 30-8-2010 CORRESPONDENCE
11
12
14 Mr John Brumby, Premier 5-10-2010
15 john.brumby@parliament.vic.gov.au
16 .
17 Cc: * Mr Ted Baillieu Leader of Her Majesty Opposition ted.baillieu@parliament.vic.gov.au
18 * Mr Rob Hulls rob.hulls@parliament.vic.gov.au
19 .
20 Re: State Land tax – etc AND TO WHOM IT MAY CONCERN
21 John,
22 as a CONSTITUTIONALIST and Author of books in the INSPECTOR-RIKATI®
23 series on certain constitutional and other legal issues my concern is foremost what is
24 constitutionally appropriate and for this direct myself to you. As you are aware of the copy of a
25 31 August 2010 to Premier Kristina Keneally (NSW) correspondence that I also forwarded to
26 you in regard the unconstitutional State/Territorian Land Taxes and her office 13 September
27 2010 response being:
28 QUOTE
29 CMU10-16940
33
39 Yours sincerely
40 David Swain
42 END QUOTE
43 I now request to respond and set out to me what you propose to do, and considering there is a
44 State election due if this will be addressed prior to the Election, if at all? It should be kept in
45 mind that the Framers of the constitution made clear that all and any unconstitutional taxation
46 must be refunded to those who paid it and this clearly will leave a gigantic black hole in the State
47 budget and this could have been addressed years ago when I recommended to you and the
48 Attorney General that all and any legislation will be duly checked for its constitutional validity
49 with the OFFICE OF THE GUARDIAN that is to assist as a council to advise the Government,
50 the People, the Parliament and the Courts as to the meaning and application of constitutions?
51 Will you take immediate action or refuse to abide by the RULE OF LAW? (constitution s.106)
52 .

Page 17
1
2
.

4 .
5
6
9
10
14 .
15 Cc: * Mr Robert Pincevic
16 .
19 Kristina,
20 Mr Anton Pincevic and Mr Robert Pincevic have requested me to urge you for a speedy
21 answer as to the status of the investigation/consideration of the issues I raised in my 31 August
22 2010 and subsequent 29-9-2010 correspondences in view that the Department is pursuing them
23 as to State Land Taxes irrespective of this being constitutionally permissible or not.
24 QUOTE
25 CMU10-16940
34 Yours sincerely
35
36 David Swain
38 END QUOTE
39 .
40 I understand from Mr Anton Pincevic that all he wants is the State to acknowledge that it cannot
41 pursue him for land taxes as he rather doesn’t want to end up in some legal battle but if the
42 Government refuses to concede this then he intends to vigorously defend his constitutional rights
43 in the courts.
44 .
45 http://www.austlii.edu.au/cgi-
46 bin/sinodisp/au/cases/cth/HCA/1932/63.html?stem=0&synonyms=0&query=income%20tax
47 Commissioner of Stamp Duties (NSW) v Millar [1932] HCA 63;
48 (1932) 48 CLR 618 (8 December 1932)
49 QUOTE
50 The jurisdiction of the New South Wales Legislature is subject to the Commonwealth of Australia
51 Constitution Act, which distributes powers of legislation between Commonwealth and State
52 Parliaments. But no question of competing or overriding power arises in this case; and the only ground
53 upon which the validity of the enactment contained in sec. 103 (1) (b) of the Stamp Duties Act has been
Page 18
1 attacked is that it is beyond the territorial jurisdiction of the New South Wales Legislature. Unlike the
2 powers of the Commonwealth Parliament, those of the New South Wales Parliament are not defined by
3 reference to subject matter, but, subject to the powers of the Commonwealth Parliament, extend to the
4 peace, welfare and good government of the State in all cases whatsoever.
5 END QUOTE
6 .
7 As pointed out in previous correspondence;
9 QUOTE
12 END QUOTE
13 .
15 QUOTE Mr. REID:
21 END QUOTE
22 .
24 QUOTE
31 END QUOTE
32 .
33 I urge you to forthwith and without any undue delay direct your Department(as) to show due and
34 appropriate respect and observation the provisions of the constitution and to seize any conduct
35 against Mr Anton Pincevic and Mr Robert Pincevic in regard of alleged State land taxes.
36 I understand that the position of Mr Anton Pincevic is that he is entitled to have a proper
37 response to the issue of the constitutional validity of State land taxes against him as referred to in
38 my various correspondences to you and your Department(s) must show the decency and courtesy
39 to also await your response. In view of the above and considering the about 3 months that has
40 passed since I provided you with my 31 August 2010 correspondence I urge you to contact Mr
41 Anton Pincevic and Mr Robert Pincevic and let them know about the legal status, if any, of the
42 issues raised by me by forwarding the correspondences to them at c/- 2342 Norther Road,
43 Luddenham NSW 2745 and a electronic copy can be forwarded in the meantime to; “Robert
44 Pincevic” roblp@bigpond.com. Obviously a copy to be forwarded to myself also at
45 mayJUSTICEalwaysPREVAIL@schorel-hlavka.com.
46 .
47 An about 3-month period surely would be deemed to have been sufficient time to “consider’
48 matters and have communicated back to me details and the fact this never eventuated may
49 underline that there is perhaps a deliberate tactic to delay matters and this obviously is
50 unacceptable to both Mr Robert Pincevic and Mr Anton Pincevic and therefore all purported
51 State land tax demands will be deemed null and void unless the State can prove otherwise. In all
52 fairness the delay of about 3-months surely in itself underlines a failure of proper
53 communication.
54 .
55
56
.

Page 19

2 .
3
6
7
11 .
12 Cc: * Mr Ted Baillieu Premier ted.baillieu@parliament.vic.gov.au
13 * Prof David de Kretser, Governor of Victoria C/o ted.baillieu@parliament.vic.gov.au
14 * Mr Robert Pincevic Robert Pincevic <roblp@bigpond.com>
15 PO Box 15 Luddenham NSW 2745
16 .
19 .
20 Kristina,
21 your office for having provided me with a 13 September 2010 response (in regard of my
22 31 August 2010 correspondence to you regarding the unconstitutional State land taxes:
23 QUOTE
24 CMU10-16940
28
34 Yours sincerely
35 David Swain
37 END QUOTE
38 .
39 Regretfully since then despite further subsequent correspondences nothing was heard about it.
40 .
41 Obviously both Mr Robert Pincevic and his father Mr Anton Pincevic have urged me to follow
42 up the matter in view that your Department is still pestering them about State land taxes.
43 The former Premier of Victoria Mr John Brumby also ignored to respond appropriately and well
44 I assisted in the Bentleigh election pursuing that State land Taxes are unconstitutional and
45 Bentleigh certainly got the message and so to say revolted against the ALP and handed it to the
46 Liberals and consequently Mr Ted Baillieu became premier of the state of Victoria.
47 Considering that it is now some 4-months since I wrote initially to you and you lacked any
48 proper response I would not encourage land holders to follow the example of Dr John B. Myers
49 in Bentleigh to spread the word about the unconstitutional land taxes so that in the upcoming
50 State election of NSW you may discover this may be a problem you may have wished you had
51 attended to while you could. When a Government Department requires a response of a citizen
52 then generally it allows no more but 14 days and I view a Government Department should then
53 likewise be limited to a 14 days response.

Page 20
1 Clearly now 4 months to the day that I wrote originally to you no proper response has been
2 received by me and I understand neither by Mr Robert Pincevic and/or his father Mr Anton
3 Pincevic and as such I view that they and other landholders should consider to commence a
4 elaborate campaign against you and others in government so that you may so to say wake up that
5 you cannot ignore the issue.
6 .
7 Below I have referred to the Paliflex case (including errors made in that case) and also Hansard
8 quotations and I urge you to ensure to respond to me and the Pincevic’s within 14 days of this
9 email/letter in a comprehensive manner setting out the position of the N.S.W. government
10 regarding what I view is unconstitutional legislation regarding State land taxes.
11 .
12 In my view as a Premier you have a duty and obligation to act in the best interest of the citizens
13 of New South Wales and not to perhaps ignore the issue so the government Department can
14 continue collecting if not enforcing unconstitutional State land taxes.
15 As I stated in my previous 31 August 2010 correspondence to you; http://www.austlii.edu.au/cgi-
17 0
18 QUOTE
20 The starting point for a principled interpretation of the Constitution is the search for the intention of its
21 makers[51].
22 END QUOTE
23 .
24 Within Section 51 of the constitution both the States and the Commonwealth have certain
25 legislative powers however as the Framers of the Constitution stated:
28 QUOTE Mr. REID
29 The object is this, that for some time to come it will not be possible for the Federal
30 Legislature to pass laws on these subjects, and it is necessary to have some laws on them-
31 the state laws if they exist-until federal laws are enacted; but the moment a federal law is
32 passed on any one of these subjects, under the provision under the head of "States" the
33 federal law prevails over the state law.
34 END QUOTE
35 .
37 QUOTE
40 END QUOTE
41 .
43 QUOTE Mr. REID:
49 END QUOTE
50 .
51 Below I quote parts of the Paliflex case and it may be noted that the High Court of Australia
52 apparently was unaware in its decision to make a conflicting judgment in that it on the one hand
53 held that the 1956 Land Tax was valid and yet on the other hand made clear the state could not
54 encroach upon exclusive commonwealth legislative powers. What the High Court of Australia
55 simply overlooked in its judgment was that since 1910 the land tax issue became an exclusive
56 legislative power. Actually the judgment also seems to misconceive that Commonwealth can be

Page 21
1 sold off and State laws are normally applicable. The truth is that when the Commonwealth
2 owned land upon federation, this despite that it was stated:
4 bin/sinodisp/au/cases/cth/HCA/2003/65.html?stem=0&synonyms=0&query=Paliflex
5 Paliflex Pty Ltd v Chief Commissioner of State Revenue (NSW) [2003] HCA 65; 219 CLR 325; 202 ALR 376; 78
6 ALJR 87 (12 November 2003)
7 .
8 QUOTE at 61 (CALLINAN J.)
9 The Commonwealth owned no land at the time of Federation. Everything it has (apart from land transferred
10 or ceded to it pursuant to ss 85 and 125 of the Constitution or given to it), must have been acquired either by
11 purchase, overshadowed no doubt by its ultimate power of compulsory acquisition, or by compulsory
12 acquisition.
13 END QUOTE
14 .
15 The evidence is in the constitution itself, which states:
16 QUOTE
17 69 Transfer of certain departments
18 On a date or dates to be proclaimed by the Governor-General after
19 the establishment of the Commonwealth the following departments
20 of the public service in each State shall become transferred to the
21 Commonwealth:
22 posts, telegraphs, and telephones;
23 naval and military defence;
24 lighthouses, lightships, beacons, and buoys;
25 quarantine.
26 END QUOTE
27 .
28 At that time all land, including for example Point Nepean in Victoria became exclusive
29 Commonwealth property. As a matter of fact any land upon which this was vested became
30 “sovereign land” in that the Commonwealth didn’t just hold it as proprietor but also as
31 “sovereign”. What this means is that all State laws whatsoever were extinguished upon any land
32 so transferred as part of the properties within s69 and those acquired within s.85 with the consent
33 of the State. As the Framers of the Constitution made clear that when the State didn’t consent to
34 the Commonwealth acquiring property then the Commonwealth would do so merely as a
35 proprietor where State laws would remain applicable for so far it didn’t conflict with the purpose
36 for which the land was obtained, .but when the State approved it then the Commonwealth
37 became “sovereign” over the land and all and any State laws became extinguished.
38 Consider also http://www.austlii.edu.au/au/cases/cth/HCA/1923/23.html Commonwealth v New
39 South Wales [1923] HCA 23; (1923) 32 CLR 200 (5 June 1923) and Commonwealth v New
40 South Wales [1923] HCA 34; (1923) 33 CLR 1 (9 August 1923) albeit then the High Court of
41 Australia erred to some decree because only when land was in exclusive powers of the
42 Commonwealth as “sovereign” would it have powers to minerals in the land. Where the
43 Commonwealth were merely hold the land as a proprietor then it has no constitutional rights to
44 the minerals under the land.
46 QUOTE
47 Mr. ISAACS.-And even independent of that provision. It has been held over and over again in the United
48 States that it is one of the attributes of sovereignty that the Supreme Government shall be unfettered in
49 carrying out the powers intrusted to it, and for the purpose of carrying out those powers it has the right to
50 acquire land compulsorily. No express power is given in the United States Constitution, and the Supreme
51 Court of that country has held that no express language is necessary. That power was exercised for the first
52 time, I think, in 1875, but it has since been exercised, beyond all doubt, on several occasions.
53 Mr. REID.-For what purposes?
54 Mr. ISAACS.-For public purposes-only for the purposes committed to it by the Constitution.
Page 22
1 Mr. HIGGINS.-In the Constitution of the United States there is a general power given for all purposes
2 incidental.
3 Mr. ISAACS.-Oh, the same as we have here.
4 Mr. KINGSTON.-Is not the supremacy of the United States Government a little different from the
5 supremacy of our proposed Federal Government?
6 Mr. ISAACS.-Not in this respect. The supremacy, as far as the powers committed to it are concerned,
7 would, in this respect, I apprehend, be exactly the same as the Supremacy of our Commonwealth Government
8 in relation to its powers. In the case of Kohl v. United States, which was decided in 1875, on this very
9 question of the right of the United States Government to compulsorily take property within the state for its
10 public purposes, the court said this:-
11 It has not been seriously contended during the argument that the United States Government is without power
12 to appropriate lands or other property within the states for its own uses, and to enable it to perform its proper
13 functions. Such an authority is essential to its independent existence and perpetuity. These cannot be
14 preserved if the obstinacy of a private person, or if any other authority, can prevent the acquisition of the
15 means or instruments by which alone governmental functions can be performed. The powers vested by the
16 Constitution in the General Government demand for their exercise the acquisition of lands in all the states.
17 These are needed for forts, armories, and arsenals, for navy yards and light-houses, for custom-houses, post-
18 offices, and court-houses, and for other public uses; If the right to acquire property for such uses may be
19 made a barren right by the unwillingness of property holders to sell, or by the action of a state prohibiting a
20 sale to the Federal Government, the constitutional grants of power may he rendered nugatory, and the
21 Government is dependent for its practical existence upon the will of a state, or even upon that of a private
22 citizen. This cannot be. No one doubts the existence in the state Governments of the right of eminent domain-
23 a right distinct from and paramount [start page 261] to the right of ultimate ownership. It grows out of the
24 necessities of their being, not out of the tenure by which lands are held. It may be exercised, though the lands
25 are not held by grant from the Government, either mediate'y or immediately, and independent of the
26 consideration whether they would escheat to the Government in case of a failure of heirs. The right is the
27 offspring of political necessity; and it is inseparable from sovereignty. unless denied to it by its fundamental
28 law. Put it is no more necessary for the exercise of the powers of a state Government than it is for the exercise
29 of the conceded powers of the Federal Government. That Government is as sovereign within its sphere as the
30 states are within theirs. True, its sphere is limited. Certain subjects only are committed to it; but its power
31 over those subjects is as fall and complete as is the power of the states over the subjects to which their
32 sovereignty extends. The power is not changed by its transfer to another holder.
33 Then the court went on to say-
34 But, if the right of eminent domain exists in the Federal Government, it is a right which may be
35 exercised within the states, so far as is necessary to the enjoyment of the powers conferred upon it by
36 the Constitution.
37 The whole judgment proceeds in that way. It has been followed in several cases, and I think it has been laid
38 down more than once in express terms that, for the purpose of carrying out the powers expressly given to the
39 federal authority in the Constitution, the right of eminent domain is an essential attribute, and therefore I do
40 not entertain the slightest doubt that, as in that case, and as in several other cases, the United States
41 Government has, even without the consent of the state, taken land so far as it was necessary for the exercise
42 of its public duties, we should have the same right here. I will now proceed to show the meaning of this sub-
43 section. This sub-section does not say that the Federal Government is to have the power to take that
44 land. It assumes that the Federal Government has that power, but when the Government does take
45 land, compulsorily or by purchase, in a state as its possession, it takes that land certainly by virtue of
46 its sovereign power of eminent domain, that is, the highest dominion. But it does not hold that land as
47 sovereign, it holds the land as proprietor. Now, where it holds the land merely as proprietor, without
48 the consent of the state being given to it, it is quite plain that the jurisdiction of the state should run,
49 except, of course, so as not to interfere with the performance of the governmental functions of the
50 Federal Government. But, as far as punishing crime is concerned, as far as any other ordinary state
51 supervision relates, not inconsistent with the performance of the supreme functions of the
52 Commonwealth, the ordinary state law will run. But the United States have provided, and we, I
53 understand, propose to provide here, that, where the state consents to the Federal Government
54 acquiring any land, either by purchase or compulsorily, it thereby consents, and that consent is
55 equivalent to the admission of the right of the Federal Government to exercise exclusive jurisdiction in

Page 23
1 respect to that particular portion of territory. And if the state does not choose to give its consent, it
2 says, in effect-"You may take this land, it is true, by virtue of your sovereign right, for your sovereign
3 powers, but you hold it as proprietor; you can carry on your post-office, your court-house, or anything
4 you please, but as regards ordinary state laws outside those functions our state laws prevail. Where the
5 state, however, is asked by the Federal Government to consent to the excision of a piece of land from its
6 own territory for governmental purposes, and does consent, then the exclusive right of the Federal
7 Government to govern that portion of land attaches to it, and this is what the sub-section we are now
8 considering intends to enact. Therefore, I think that the leader of the Convention is right in not pressing this
9 amendment, and that we should be doing well to keep in the words "with the consent," because it does not
10 relate to the acquisition of property, but to the exercise of jurisdiction over the property when it is acquired.
11 END QUOTE
12 .
13 When I exposed this to the then Prime Minister John Howard that he couldn’t sell the land
14 (Point Nepean) to private interest as it would remain Commonwealth sovereign property and so
15 the Commonwealth would then have to provide for the relevant infra structure including law
16 enforcement, etc, it was then that John Howard aborted any sale of the land as such.
17 Commonwealth land that is held in not just propriety but as “sovereign” cannot be sold of to
18 individuals and then State laws are applied because the land technically remains under the
19 “sovereign” powers of the Commonwealth. As to if the Commonwealth obtained the land
20 relating to the Paliflex case as “sovereign” and not just as “proprietor” is not what I have delved
21 into albeit the judgment appears to indicate it never was. For all purposes and intend if the land
22 relating to the Paliflex case was held by the Commonwealth as “sovereign” then it would have
23 and still would be under Commonwealth powers irrespective if it was sold to Paliflex and
24 subsequently to others as much as with old Australia Post/Telecom/Telstra land that purportedly
25 was sold off but never was the ‘sovereign” powers of the Commonwealth extinguished if the
26 land had not been returned back first to the relevant state. As such, if the Commonwealth holds
27 land as “proprietor” then it is basically holding the land by title but the land remains under the
28 sovereign rights of the relevant State and all State laws are applicable for so far they do not
29 interfere with the purpose for which the Commonwealth holds the land as proprietor. If however
30 the Commonwealth obtained the land as a “sovereign” then it will continue to be the “sovereign”
31 of this land regardless it may transfer the titled to Paliflex or whomever. Then State as cannot be
32 applied as the land is not part of the State sovereign powers. After all a clear example is the ACT
33 where the Commonwealth allows people to obtain land but retain its “sovereign” powers as it
34 didn’t then revert back to NSW, as it used to be prior to federation! If the Commonwealth
35 therefore seeks to dispose of its “sovereign” powers it can do only so by relinquishing it back to
36 the relevant State and then the State can deal with it as it desires. The Commonwealth cannot sell
37 the land to private interest and then seek to transfer it back to a State while so to say prevent the
38 State then to deal with the land as a “sovereign” as it desires. Hence, any sale of land by the
39 Commonwealth that is intended to extinguish its “sovereign” powers must be done by returning
40 the land to the relevant State and then the State determines how it may deal with the land.
41 .
42 http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2003/65.html?stem=0&synonyms=0&query=Paliflex
45 QUOTE
46 Windeyer J[36] construed the Scheme as containing an implication that it did "not encroach upon matters
47 that are within the exclusive power of the Commonwealth".
48 END QUOTE
49 .
52 QUOTE
53 17. The position which this Court should accept is that at no relevant time since 1956 have the Tax Act and the
54 Management Act had any invalid application to the Land. More precisely, (i) the New South Wales land
55 tax legislation was not invalid when enacted in 1956; there was no purported exercise by the State of what

Page 24
1 was the exclusive federal power conferred by s 52(i) of the Constitution; (ii) the Land ceased to have the
2 character of a place acquired by the Commonwealth for public purposes on the registration of the transfer
3 to Paliflex on 4 February 1998; and (iii) in its application to the Land on the critical dates of 31 December
4 1998 and 31 December 1999, the State legislation was not an exercise of power with respect to a place
5 acquired by the Commonwealth for public purposes. These conclusions made it unnecessary formally to
6 determine the validity of s 14(2) of the State Administration Act, but its validity is implicit in the reasoning
7 leading to the above conclusions.
8 The situation in 1956
9 18. We turn to consider proposition (i) listed in [16] above and thus to the situation in 1956 when the Tax Act
10 and the Management Act were enacted. At that stage the Land was "property of any kind belonging to the
11 Commonwealth" within the meaning of s 114 of the Constitution and so, without the consent of the
12 Parliament of the Commonwealth, New South Wales could not impose any tax upon it. Further, the Land
13 was one of the "places acquired by the Commonwealth for public purposes" within the meaning of s 52(i)
14 of the Constitution. The Land had been acquired in 1922, but the phrase "acquired by the Commonwealth"
15 carries within itself the notion of being the property of the Commonwealth as a consequence of that
16 acquisition.
17 END QUOTE
18 .
21 QUOTE
22 24. Allders also confirms[27] that the boundaries of the power withdrawn by s 52(i) from the States are charted
23 by the grant of exclusive power to the Commonwealth, so that a useful test is to ask whether a federal law
24 similar to the 1956 State legislation would be supported in any of its operations as a law with respect to the
25 Land. The answer must be that such a law would have no connection with the Land, accepting that
26 something more than an insubstantial, tenuous or distant connection is required by the authorities just
27 mentioned.
28 END QUOTE
29 .
32 QUOTE (CALLINAN J.)
33 55. The appeal fails on the basis that the two State enactments, the Land Tax Management Act 1956 (NSW)
34 ("the LTMA") and the Land Tax Act 1956 (NSW), never had, or purported to have any application to the
35 Commonwealth and any land owned by it within the State. Each of, and in combination, ss 3, 7 and 9 of the
36 LTMA, the sections by which land tax is levied, refer or are intended to operate in relation to "land ...
37 owned by taxpayers". As the Commonwealth is not a taxpayer it does not answer that description.
38 Furthermore, the Commonwealth is, to put it at its lowest, constitutionally exempt from any obligation to
39 pay land tax to the State.
40 END QUOTE
41 .
44 QUOTE (CALLINAN J.)
45 61. The appellant contended that the two Acts burdened Commonwealth land. It was unable to identify any
46 effect upon it however, except as to its value: in short that the Commonwealth could sell it for more if it
47 were exempt from land tax. Attempts by the appellant to liken this circumstance to a defect in title were
48 unconvincing. That the Commonwealth might get a better price if it could immunise land it owned from
49 land tax for a period, or indefinitely, has nothing to say about the nature and completeness of the title that it
50 can convey. Apart from the more obvious policy considerations arguing against the result sought by the
51 appellant, that land no longer in Commonwealth ownership and therefore no longer used for any public
52 purpose should nonetheless continue to have a tax free status, there is this. The Commonwealth owned no
53 land at the time of Federation. Everything it has (apart from land transferred or ceded to it pursuant to ss 85
54 and 125 of the Constitution or given to it), must have been acquired either by purchase, overshadowed no
55 doubt by its ultimate power of compulsory acquisition, or by compulsory acquisition. On acquisition it
56 would have paid no additional sum for it because it was to be used for a Commonwealth public purpose,
57 one relevant incident of which is freedom from State land tax. That follows from settled principle now
58 enacted as s 60 of the Lands Acquisition Act 1989 (Cth) which relevantly provides:
Page 25
1 "In assessing compensation, there shall be disregarded:
2 (a) any special suitability or adaptability of the relevant land for a purpose for which it
3 could only be used pursuant to a power conferred by or under law, or for which it could
4 only be used by a government, public or local authority;
5 ...
6 (c) any increase or decrease in the value of the land caused by the carrying out of, or the
7 proposal to carry out, the purpose for which the interest was acquired; and
8 ..."
9 62. An enactment under the Constitution may not of course be used to construe the Constitution, but s 60 of the
10 Lands Acquisition Act reflects the law in force in relation to compulsory acquisitions at the time of
11 Federation and of which the drafters may be taken to have known. That law is described in Corrie v
12 MacDermott[86] on appeal from this Court to the Privy Council which explained the much earlier cases of
13 Hilcoat v Archbishops of Canterbury and York[87] and Stebbing v Metropolitan Board of Works[88]. The
14 principle was shortly stated as[89]:
15 "The value which has to be assessed is the value to the old owner who parts with his
16 property, not the value to the new owner who takes it over."
17 It would be odd, if having acquired land for a price which was unaffected by the incidents of public
18 ownership, an acquiring authority should be entitled to sell it to an ordinary purchaser at a price enhanced
19 by the continuation of a status entirely inappropriate to its new ownership and usage.
20 END QUOTE
21 .
22 Further, as to water rights of landholders so to say the Commonwealth should but out because
23 other then for navigational purposes it has absolutely no legislative powers to interfere with the
24 rights of the states and so landholders in the states as to how much water consumption they may
25 or may not have.
26 .
29 We are only asking for the right that every riparian proprietor enjoys under British law-the
30 right that the man above him shall neither injure the quality nor diminish the flow of any
31 stream designed for their mutual benefit and enjoyment. That is a right that is founded
32 deep in natural justice. It cannot be said that we are asking for anything extraordinary or
33 making extreme demands upon our follow colonists when we simply seek for that right
34 which every riparian proprietor under British law enjoys. The tendency of modern
35 legislation is to go even further than the common law doctrine in declaring that there shall
36 be no exclusive property in running streams. The tendency of modern legislation is to say
37 that while the riparian proprietors should have their rights under the law there is a higher, a
38 paramount right, the right of the people who are the dwellers on the banks of these streams.
39 END QUOTE
40 .
41 As a CONSTITUTIONALIST and Author of books in the INSPECTOR-RIKATI® series on
42 certain constitutional and other legal issues my issue is foremost what is constitutionally
43 appropriate and for this directed myself to you. I intend to publish a copy of this correspondence
44 on the internet so that you might be aware that I will disclose details to others so they may seek
45 to use it to their advantage to combat any unconstitutional State land tax.
46 I have provided the email address of Mr Robert Pincevic also (above) so you can also respond
47 to him and his father directly.
48 .
49 EITHER WE HAVE A CONSTITUTION OR WE DON’T!
50 .

Page 26
1
2
.

4 .
5
8
9
10 QUOTE 7-2-201 C1ORRESPONDENCE
13 .
15 * Tony Newbury Chief Commissioner of State Revenue C/o peter.geffroy@osr.nsw.gov.au
16 * Mr Robert Pincevic <roblp@bigpond.com>
17 PO Box 15 Luddenham NSW 2745
18 .
21 .
22 Kristina,
25 QUOTE
26 CMU10-16940
30
36 Yours sincerely
37 David Swain
39 END QUOTE
40 .
41 Regretfully since then despite further subsequent correspondences nothing was heard about it
42 other then that I have become aware that Peter Geffroy of State Revenue Office appears to
43 disregard the proper ‘consideration” and persist with assessments irrespective of the issue that
44 State parliaments since 1910 have no constitutionally permissible legislative powers as to raise
45 land taxes since it became an exclusive federal power in 1910.
46 .
47 QUOTE Padfield v Minister of Agriculture & Fisheries and Food (1968) AC 997 (1968) 1 ALL ER 694 House
48 of Lords - Lord Upjohn and Lord Hodson Upjohn: - (Irrelevant consideration)
49 Here let it be said at once, he and his advisers have obviously given a bona fide and painstaking
50 consideration to the complaints addressed to him; the question is whether the consideration was sufficient
51 in law.
52 END QUOTE
53 .

Page 27
1 It appears to me that “You can be sure your letter will receive close consideration.” then must
2 imply that before the State Revenue Office can pursue any assessment as to properties owned by
3 the Pincevic’s then such due and proper consideration is given in regard of if the State does or
4 doesn’t have any constitutionally permissible land tax legislative powers.
5 In all fairness to the Pincevi’s the issue was raised by me way back on 31 August 2010 well
6 before the State Revenue Office purportedly issued its client ID 41494706 (correspondence ID
7 1539644953) & ID 4345407 (correspondence ID 1539640597) Land Tax Assessment Notices
8 and as such the Pincevic’as are entitled to be given a proper explanation what was actually
9 “considered’ and if the issue of the lack of legislative powers regarding State Land Taxes was
10 not considered then the Land Tax Assessment Notice would fail as it omitted proper
11 consideration of all relevant issues.
12 .
13 I have obtained a copy of a 13 January 2011 correspondence from the Office of state Revenue
14 and contrary to your office response stating “You can be sure your letter will receive close
15 consideration.” Nothing in the correspondence seems to me even remotely refer to the issues
16 raised in my n31 August 2010 and further correspondences.
17 As the Framers of the Constitution made clear all and any taxes unconstitutionally extracted
18 from a tax payer must be refunded. Hence, any State land Taxes the State of NSW so far charged
19 and had paid from the Pincevic’s should be refunded.
20 .
21 The State of NSW also should be aware that if this case were to go for litigation in the courts
22 then where the courts to uphold the claim that the States since 1910 no longer had legislative
23 powers to apply land taxes then this will be a considerable billion dollar issue. Do you really
24 desire to have this case to be litigated as such?
25 .
26 Kikonda Butema Farms Ltd v The Inspector General of Government HCT-00-CV-MA-593-2003
27 QUOTE
28 Constitution needles to mention is a supreme law of the land.
29 END QUOTE
30 .
33 0
34 QUOTE
36 The starting point for a principled interpretation of the Constitution is the search for the intention of its
37 makers[51].
38 END QUOTE
39 .
42 Providing, as this Constitution does, for a free people to elect a free Parliament-giving that people
43 through their Parliament the power of the purse-laying at their mercy from day to day the existence of
44 any Ministry which dares by corruption, or drifts through ignorance into, the commission of any act
45 which is unfavorable to the people having this security, it must in its very essence be a free
46 Constitution. Whatever any one may say to the contrary that is secured in the very way in which the
47 freedom of the British Constitution is secured. It is secured by vesting in the people, through their
48 representatives, the power of the purse, and I venture [start page 2477] to say there is no other way of
49 securing absolute freedom to a people than that, unless you make a different kind of Executive than
50 that which we contemplate, and then overload your Constitution with legislative provisions to protect
51 the citizen from interference. Under this Constitution he is saved from every kind of interference.
52 Under this Constitution he has his voice not only in the, daily government of the country, but in the
53 daily determination of the question of whom is the Government to consist. There is the guarantee of
54 freedom in this Constitution. There is the guarantee which none of us have sought to remove, but every
55 one has sought to strengthen. How we or our work can be accused of not providing for the popular
56 liberty is something which I hope the critics will now venture to explain, and I think I have made their
57 work difficult for them. Having provided in that way for a free Constitution, we have provided for an
Page 28
1 Executive which is charged with the duty of maintaining the provisions of that Constitution; and,
2 therefore, it can only act as the agents of the people. We have provided for a Judiciary, which will
3 determine questions arising under this Constitution, and with all other questions which should be dealt
4 with by a Federal Judiciary and it will also be a High Court of Appeal for all courts in the states that
5 choose to resort to it. In doing these things, have we not provided, first, that our Constitution shall be free:
6 next, that its government shall be by the will of the people, which is the just result of their freedom: thirdly,
7 that the Constitution shall not, nor shall any of its provisions, be twisted or perverted, inasmuch as a
8 court appointed by their own Executive, but acting independently, is to decide what is a perversion of its
9 provisions? We can have every faith in the constitution of that tribunal. It is appointed as the arbiter of the
10 Constitution. It is appointed not to be above the Constitution, for no citizen is above it, but under it; but
11 it is appointed for the purpose of saying that those who are the instruments of the Constitution-the
12 Government and the Parliament of the day-shall not become the masters of those whom, as to the
13 Constitution, they are bound to serve. What I mean is this: That if you, after making a Constitution of
14 this kind, enable any Government or any Parliament to twist or infringe its provisions, then by slow
15 degrees you may have that Constitution-if not altered in terms-so whittled away in operation that the
16 guarantees of freedom which it gives your people will not be maintained; and so, in the highest sense,
17 the court you are creating here, which is to be the final interpreter of that Constitution, will be such a
18 tribunal as will preserve the popular liberty in all these regards, and will prevent, under any pretext of
19 constitutional action, the Commonwealth from dominating the states, or the states from usurping the
20 sphere of the Commonwealth. Having provided for all these things, I think this Convention has done
21 well.
22 END QUOTE
23 .
24 The following applies as much to Federal laws of the Commonwealth of Australia as it does to
25 federal laws in the USA; http://familyguardian.tax-
26 tactics.com/Subjects/LawAndGovt/ChallJurisdiction/AuthoritiesArticle/AuthOnJurisdiction.htm
27 QUOTE
28 37 Am Jur 2d at section 8 states, in part: "Fraud vitiates every transaction and all contracts. Indeed, the
29 principle is often stated, in broad and sweeping language, that fraud destroys the validity of everything into
30 which it enters, and that it vitiates the most solemn contracts, documents, and even judgments."
31 END QUOTE
32 And
33 QUOTE
34 The general misconception is that any statute passed by legislators bearing the appearance of law constitutes
35 the law of the land. The U.S. Constitution is the supreme law of the land, and any statute, to be valid, must be
36 in agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail.
37 This is succinctly stated as follows:
38 The general rule is that an unconstitutional statute, though having the form and name of law, is in
39 reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from
40 the time of its enactment, and not merely from the date of the decision so branding it. An
41 unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a
42 statute leaves the question that it purports to settle just as it would be had the statute not been enacted.
43 Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers
44 no rights, creates no office, bestows no power or authority on anyone, affords no protection, and
45 justifies no acts performed under it. . .
46 A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede
47 any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is
48 superseded thereby.
49 No one is bound to obey an unconstitutional law and no courts are bound to enforce it.
50 END QUOTE
51 Sixteenth American Jurisprudence
52 Second Edition, 1998 version, Section 203 (formerly Section 256)
53 .
55 QUOTE Mr. REID:
61 END QUOTE
Page 29
1 .
2 It is therefore clear that when the Commonwealth commenced to legislate as to Land Taxes in
3 1910 then that so to say spelled the end of the States to legislate as such. The fact that the
4 Commonwealth abolished land taxes in 1952 itself didn’t alter the fact that it had become an
5 “exclusive” Commonwealth legislative power. As such the 1956 State land Taxes legislation and
6 any subsequent amendments to it all are and remain to be unconstitutional.
7 .
9 QUOTE
16 END QUOTE
17 .
19 QUOTE
20 Mr. OCONNOR.-Directly it is exercised it becomes an exclusive power, and there is no doubt that it
21 will be exercised.
22 END QUOTE
23 .
24 The Framers of the Constitution also embedded the legal principle in the constitution (out of
25 which within s.106 the States were created from the colonies):
26 .
28 QUOTE Mr. HIGGINS:
29 I think it is advisable that private people should not be put to the expense of having important
30 questions of constitutional law decided out of their own pockets.
31 END QUOTE
32 .
33 Obviously both Mr Robert Pincevic and his father Mr Anton Pincevic have urged me to follow
34 up the matter in view that your Department is still pestering them about State land taxes.
35 As a CONSTITUTIONALIST and Author of books in the INSPECTOR-RIKATI® series on
36 certain constitutional and other legal issues my issue is foremost what is constitutionally
37 appropriate and for this directed myself to you. I intend to publish a copy of this correspondence
38 on the Internet so that you might be aware that I will disclose details to others so they may seek
39 to use it to their advantage to combat any unconstitutional State land tax.
40 I have provided the email address of Mr Robert Pincevic also (above) so you can also respond
41 to him and his father directly.
42 .
43 For the above I duo urge you to ensure that the State Land Tax Office immediately withdraw all
44 and any Assessment notices and do consider the issue of constitutional validity of State land
45 taxes and to give the Pincevic’s a proper response if it holds the legislation to be valid or not and
46 upon what “consideration”. After all litigation may attract more attention to other land tax
47 assessed land holders then the State may desire, in particular where it were to end up being an
48 adverse decision to the State of NSW.
49 .
51 .
52
53
.

55 .
Page 30
1
4
5
9 .
11 * Tony Newbury Chief Commissioner of State Revenue C/o peter.geffroy@osr.nsw.gov.au
12 * Mr Robert Pincevic <roblp@bigpond.com> PO Box 15 Luddenham NSW 2745
13 .
16 .
17 Kristina,
20 QUOTE
21 CMU10-16940
25
31 Yours sincerely
32 David Swain
34 END QUOTE
35 .
36 I received on 8-3-2011 a response dated 2-3-2011 from Barry Collier MP Parliamentary
37 Secretary Assisting the Treasurer on behalf of the Treasurer he responded.
38 Section 107 he refers to is very clear that for example “Income Tax” albeit was a Colonial and
39 later State legislative power the moment the Commonwealth legislated upon “Income Tax” then
40 the power became an exclusive Commonwealth power and the States had to retire from this.
41 Once it became an exclusive power then the constitution doesn’t permit it to return to become a
42 “concurrent” power, as I have set out in past correspondence. The legislative powers on the
43 particular field is forever an exclusive power of the Commonwealth!
44 In regard of the State Land Taxes the same applies. Once the Commonwealth commenced to
45 legislate as to “Land taxes” then it became by this an exclusive legislative power and as such the
46 State no longer had concurrent legislative powers on Land taxes matters.
47 The States were created out of the former colonies and as s.106 of the (federal) constitution
48 makes clear “subject to this constitution” and this clearly provides in s51 for concurrent
49 legislative powers to become exclusive Commonwealth legislative powers. It is not relevant if
50 the Commonwealth, as like with the 1952 abolition land taxes were to abolish “income tax”
51 because it would still remain an exclusive Commonwealth legislative power. As for s5 of the
52 Constitution Act 1992 (NSW) it cannot override any Commonwealth exclusive powers and as it
53 clearly is subject to the Commonwealth constitution it therefore cannot be perceived it somehow
54 gives legislative powers no longer permissible by the Commonwealth Constitution to be
55 exercisable by a state.
Page 31
1
2 .
3 Critical might be the claim:
4 QUOTE
Page 32
1 Land taxes were imposed by the States prior to federation. They were introduced at the federal level in 1910.
2 In 1952, the Commonwealth Government abolished land tax. This did not have the effect of preventing the
3 States from imposing land tax, but rather returned taxation powers back to them. Accordingly, the NSW
4 Government introduced the land Management Act in 1956.
5 END QUOTE
6 Obviously, contrary to what was claimed by Barry Collier MP the Commonwealth Government
7 has no constitutional powers to abolish any legislation as it being the Executive it can refuse to
8 enforce legislative provisions but cannot abolish an act of Parliament. As such it is the
9 Commonwealth Parliament that can only abolish legislation.
10 What may be noted is the wording “but rather returned taxation powers back to them” as
11 such this is a concession that in fact since 1910 land taxes were an exclusive Commonwealth
12 legislative power. The question then is how does one “return” a legislative power to any State,
13 not just NSW, where the Constitution never provided for this? Clearly Barry Collier MP didn’t
14 clarifyy within what constitutional powers, if any, a reversal of legislative power could eventuate
15 and quite frankly the Framers of the Constitution made clear that once a legislative power was a
16 Commonwealth legislative power then this was the end of the States dealing with the subject.
17 .
20 QUOTE
21 Mr. DEAKIN.-My point is that by the requests of different colonies at different times you may arrive at a
22 position in which all the colonies have adopted a particular law, and it is necessary for the working of that
23 law that certain fees, charges, or taxation should be imposed. That law now relates to the whole of the
24 Union, because every state has come under it. As I read clause 52, the Federal Parliament will have no
25 power, until the law has thus become absolutely federal, to impose taxation to provide the necessary
26 revenue for carrying out that law. Another difficulty of the sub-section is the question whether, even
27 when a state has referred a matter to the federal authority, and federal legislation takes place on it, it
28 has any-and if any, what-power of amending or repealing the law by which it referred the question? I
29 should be inclined to think it had no such power, but the question has been raised, and should be
30 settled. I should say that, having appealed to Caesar, it must be bound by the judgment of Caesar, and
31 that it would not be possible for it afterwards to revoke its reference.
32 END QUOTE
33 .
36 The court may say-"It is a good law, but as it technically infringes on
37 the Constitution we will have to wipe it out."
38 END QUOTE
39 .
42 In the next sub-section it is provided that all taxation shall be uniform throughout the Commonwealth.
43 An income tax or a property tax raised under any federal law must be uniform "throughout the
44 Commonwealth." That is, in every part of the Commonwealth.
45 END QUOTE
46 .
48 QUOTE
49 Mr. MCMILLAN: I think the reading of the sub-section is clear.
50 The reductions may be on a sliding scale, but they must always be uniform.
51 END QUOTE
52 And
54 QUOTE
55 Sir GEORGE TURNER: No. In imposing uniform duties of Customs it should not be necessary for the
56 Federal Parliament to make them commence at a certain amount at once. We have pretty heavy duties in
57 Victoria, and if the uniform tariff largely reduces them at once it may do serious injury to the colony. The

Page 33
1 Federal Parliament will have power to fix the uniform tariff, and if any reductions made are on a
2 sliding scale great injury will be avoided.
3 END QUOTE
4 .
7 But it is a fair corollary to the provision for dealing with the revenue for the first five years after the
8 imposition of uniform duties of customs, and further reflection has led me to the conclusion that, on the
9 whole, it will be a useful and beneficial provision.
10 END QUOTE
11 And
14 On the other hand, the power of the Commonwealth to impose duties of customs and of excise such as it may
15 determine, which insures that these duties of customs and excise would represent something like the average
16 opinion of the Commonwealth-that power, and the provision that bounties are to be uniform throughout
17 the Commonwealth, might, I am willing to concede, be found to work with some hardship upon the states
18 for some years, unless their own rights to give bounties were to some extent preserved.
19 END QUOTE
20
22 QUOTE Sir SAMUEL GRIFFITH:
23 2. Customs and excise and bounties, but so that duties of customs and excise and bounties shall be uniform
24 throughout the commonwealth, and that no tax or duty shall be imposed on any goods exported from one
25 state to another;
26 END QUOTE
27
29 QUOTE The CHAIRMAN.-
30 Taxation; but so that all taxation shall he uniform throughout the Commonwealth, and that no tax or duty
31 shall be imposed on any goods passing from one state to another.
32 END QUOTE
33 .
35 QUOTE
36 Mr. BARTON.-I am saying now that I do not think there is any necessity for clause 95 in its present form.
37 What I am saying however, is that it should be made certain that in the same way as you provide that the
38 Tariff or any taxation imposed shall be uniform throughout the Commonwealth, so it should be
39 provided with reference to trade and commerce that it shall be uniform and equal, so that the
40 Commonwealth shall not give preference to any state or part of a state. Inasmuch as we provide that
41 all taxation, whether it be customs or excise duties, or direct taxation, must be uniform, and inasmuch
42 as we follow the United States Constitution in that particular-in the very same way I argue that we should
43 protect the trade and commerce sub-section by not doing anything which will limit its effect. That is the real
44 logical position.
45 END QUOTE
46 .
49 QUOTE
50 Mr. ISAACS (Victoria).-What I am going to say may be a little out of order, but I would like to draw the
51 Drafting Committee's attention to the fact that in clause 52, sub-section (2), there has been [start page 1856] a
52 considerable change. Two matters in that sub-section seem to me to deserve attention. First, it is provided
53 that all taxation shall be uniform throughout the Commonwealth. That means direct as well as indirect
54 taxation, and the object I apprehend is that there shall be no discrimination between the states; that an
55 income tax or land tax shall not be made higher in one state than in another. I should like the Drafting
56 Committee to consider whether saying the tax shall be uniform would not prevent a graduated tax of any
57 kind? A tax is said to be uniform that falls with the same weight on the same class of property, wherever it is
58 found. It affects all kinds of direct taxation. I am extremely afraid, that if we are not very careful, we shall get
59 into a difficulty. It might not touch the question of exemption; but any direct tax sought to be imposed
60 might be held to be unconstitutional, or, in other words, illegal, if it were not absolutely uniform.
61 END QUOTE
62 .
Page 34
1 It should be clear that a “UNIFORM” law under the Commonwealth cannot somehow revert
2 back to a non-uniform law merely because of the States desiring to pursue their own kind of land
3 taxation. As such, on this basis also the State land taxes are floored (and so also any Territorial
4 land taxes).
5 .
7 QUOTE
8 Mr. ISAACS.-The court would not consider whether it was an oversight or not. They would take the
9 law and ask whether it complied with the Constitution. If it did not, they would say that it was invalid.
10 They would not go into the question of what was in the minds of the Members of Parliament when the law
11 was passed. That would be a political question which it would be impossible for the court to determine.
12 END QUOTE
13 .
14 As I previously indicated the Commonwealth could have allowed the States to collect under its
15 authority land taxes but it still would have to be uniform through the Commonwealth and as such
16 all States and Territories (quasi States) would be bound to have the same land taxes application
17 and not different rates. This then would clearly be a waste of exercise as why allow different
18 States/Territories to collect taxes when one federal office can do the same?
19 The issue then is of the Commonwealth somehow could enact legislation to retrospective provide
20 for legislation for the States/Territories to have collected land taxes on its behalf. Again, the first
21 hurdle is that retrospective legislation would be invalid where so to say it makes the conduct of a
22 honest man to be a criminal conduct. Further, where the States raised different levels of land
23 taxes then it cannot be uniform. One couldn’t accept that a person of one State having paid less
24 then in another State now suddenly was to pay more by some kind of retrospective legislation
25 and neither that some who paid more now were going to receive a refund of any land taxes paid
26 above that of other States. After all commercial entities are based upon overhead cost, including
27 land taxes, etc, and as such a business enterprise might be determined where the lowest taxation
28 is available. Changing the system after the contracts are already in operation would make a
29 mockery of the reliability of State provisions.
30 I have indicated for years that what is needed is an OFFICE-OF-THE-GUARDIAN which
31 would advise the government, the parliament, the people and the Courts as to constitutional
32 meanings and application as a constitutional council. This is what is missing in Australia and as
33 result we have sport stars and singers and whatever elected to the parliament and basically no
34 one understands let alone comprehend the meaning and application of the constitutions.
35 .
36 It is obviously of concern to me that it took a massive 6 month period (from 31 August 2010 till
37 2 March 2011) to present this kind of response that doesn’t appear to me to indicate to be any
38 well researched response.
39 .
40 Obviously I will pass on the 2-3-2011 response and my reply to those concerned with the issue.
41 .
43 .
44
45
.

47 .
48
51
52
Page 35
1 This submission is to some extent comprehensive and far beyond most people may ever have
2 considered but nevertheless unless it can be appropriately defeated (I do not seek to imply it can
3 be) then it should be considered and the review must reflect this.
4
5 I successfully defeated the Commonwealth in AEC v Schorel-Hlavka (representing myself)
6 County Court of Victoria, Case numbers T01567737 & Q10897630 on 19 July 2006. on
7 compulsory voting being unconstitutional and let this be a warning that if I can do so where all
8 others failed then obviously I have proven my worth in court about my constitutional knowledge
9 to be superior then the many lawyers that were employed to defeat me.
10
11 Let us not ignore that there are people who’s lives were ruined because of court decisions
12 regarding state land taxation enforcement where not even the judiciary understood what really
13 was constitutionally applicable.
14
15 It is sickening we are being told we must respect the rule of law when the very people preaching
16 this are acting in defiance of it.
17 .
18 Let this review unequivalently deplore any enforcement of unconstitutional land taxation
19 provisions and avoid any silence of this.
20
21 Unequivalent | Definition of Unequivalent at Dictionary.com
22
23 https://www.dictionary.com/browse/unequivalent
24 Anonymous View
25 Unequivalent definition, equal in value, measure, force, effect, significance, etc.: His silence is
26 equivalent to an admission of guilt. See more.
27
28 The N.S.W. Government went into silence unable to defeat what I placed before it and by this
29 admitted that it was in the wrong!
30
31 Again:
34 QUOTE Mr. DEAKIN.-
35 I should say that, having appealed to Caesar, it must be bound by the judgment of Caesar, and that it
36 would not be possible for it afterwards to revoke its reference.
37 END QUOTE
38
39 The same applies to the Commonwealth exercising its powers provided for within the
40 constitution. Once it is exercised it cannot be reverted back to the States unless a successful
41 Section 128 REFERENDUM was to provide otherwise.
42
43 This correspondence is not intended and neither must be perceived to address all issues.
44 Awaiting your response, G. H. Schorel-Hlavka O.W.B. (Friends call me Gerrit)
45 MAY JUSTICE ALWAYS PREVAIL®

46 (Our name is our motto!)


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Page 1

1 So, let us look at the validity of charges.

1 Hansard 27-1-1898 Constitution Convention Debates

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

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1 HANSARD 11-03-1891 Constitution Convention Debates

22 Mr. BARTON: That would not be a case of two separable propositions.

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6 Our name is our motto!

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3 Our name is our motto!

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1 Our name is our motto!

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53 Mr. REID.-For what purposes?

3 Mr. ISAACS.-Oh, the same as we have here.

33 Then the court went on to say-

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8 The situation in 1956

1 "In assessing compensation, there shall be disregarded:

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3 Our name is our motto!

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54 Our name is our motto!

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46 Our name is our motto!

45 MAY JUSTICE ALWAYS PREVAIL®

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