20150504-G. H. Schorel-Hlavka O.W.B. To MR TONY ABBOTT PM-Re Foreign Investment Tax Really A Land Tax Prohibited by The Land Tax Abolition Act 1952 Section 3

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WITHOUT PREJUDICE
Mr Tony Abbott PM
Cc:
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4-5-2015
C/o josh.frydenberg.mp@aph.gov.au
Bill Shorten Bill.Shorten.MP@aph.gov.au
Daniel Andrews Premier Victoria daniel.andrews@parliament.vic.gov.au
Senator George Brandis senator.brandis@aph.gov.au
George Williams george.williams@unsw.edu.au
Mr Clive Palmer Admin@PalmerUnited.com
Jacqui Lambie senator.ketter@aph.gov.au
Joe (smoking) Hockey Treasurer J.Hockey.MP@aph.gov.au
The mayor & councillors Buloke Shire Council buloke@buloke.vic.gov.au
The mayor & councillors Banyule City Council enquiries@banyule.vic.gov.au
Ref; 20150114-G. H. Schorel-Hlavka O.W.B. to Mr Tony Abbott PMRe Foreign investment tax really a Land Tax prohibited by the Land Tax Abolition Act 1952 Section 3
Tony,
In my 14-1-2015 correspondence to you I put the question to you:
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QUOTE
as a CONSTITUTIONALIST I ask; Where the Hell are you?

END QUOTE
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I have quoted below the content of this 14-1-2015 correspondence more extensive!
As the LAND TAX ABOLITION. No. 2 of 1953 that abolished the Land Tax Abolition Act 1952
itself was later abolished then the Land Tax Abolition Act 1952 by this was automatically
reinstated, to which Section 3 & 4 states:
QUOTE LAND TAX ABOLITION C1952A00081
3. Land tax shall not be levied and paid for the financial year which commenced on the first day of July,
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One thousand nine hundred and fifty-two, or for any subsequent financial year.
4. Section fifteen of the Land Tax Assessment Act 1910-1952 does not apply in respect of the financial year
which commenced on the first day of July, One thousand nine hundred and fifty-two, or in respect of any
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subsequent financial year.

END QUOTE LAND TAX ABOLITION C1952A00081
As I did set out in my 14-1-2015 correspondence (again reproduced below) as like Income Tax,
once the Commonwealth legislates then the States no longer can do so. As I understand it the 11
November 1910 creation of the Land Tax Office (the forerunner of the ATO) was because of
foreign investments buying up so to say vacant land. As such, while the Commonwealth can
reinstate Commonwealth land taxation powers by abolishing (again) the Land Tax Abolition Act
1952, it would require Parliament to approve this. Alternatively the Commonwealth parliament
could amend the Land Tax Abolition Act 1952 to achieve the same effect by substituting the
existing sections with one that permits new land taxes by the Commonwealth of Australia.
Hansard 17-9-1897 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE
The Hon. Sir J.W. DOWNER (South Australia)[4.10]: I have none of the fears of my colleague, who has just
resumed his seat. The safety-valves he spoke about are created in the governments which we know as
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4-5-2015
Mr G. H. Schorel-Hlavka O.W.B.
INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD
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constitutional governments by providing judicious checks on hasty legislation. My hon. friend has just
been arguing that these most necessary and legitimate checks are in themselves dangerous to society,
likely to produce rebellion, and to land us in civil war.
END QUOTE
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The problem I have with the GST, besides it being unconstitutional (see quote below) is that it
denied the State to receive back what it provides for (minus Commonwealth expenditure) by
fattening up the Northern Territory and some States by the NT receiving reportedly 5 times as to
what it has on GST! Northern Territory receives about 5 times then what reportedly is collected.
The Commonwealth Grant Commission cannot undermine ss51(ii)
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Commonwealth of Australia Constitution Act 1900 (UK)

QUOTE
(ii) taxation; but so as not to discriminate between States or parts of States;
END QUOTE
While it is claimed that the GST is a State tax reality is that it is a Commonwealth tax.
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Hansard 14-4-1897 Constitution Convention Debates

QUOTE Mr. HIGGINS:
What is meant by one subject of taxation? Suppose a land tax is imposed, you tax posts and rails. That
may be argued not to be a law dealing with one subject.
END QUOTE
Albeit, as I wrote in the past the ATO doesnt keep records, at least by its own admission to me,
as to how much GST I paid and refused to refund an overcharged GST. As such, the GST is not
recorded as such by the Commonwealth nor by the states but is essentially a business tax that in
violation of the constitution is not appropriated via an Appropriation bill BUT IS LEFT TO
BUSINESSES TO CHARGE OR NOT TO CHARGE AND HOW MUCH, ETC.
In my 25-3-2005 correspondence to John Howard I then wrote:
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QUOTE 25-3-2005 CORRESPONDENCE

Neither do I accept that the Commonwealth of Australia can raise GST for or on behalf of the Staters. It can
only raise taxes for purpose of appropriation bills passed by the parliament and any surplus is to be returned
to the States.
When I had to have my roof repaired, I called in a company who quoted me, after giving 20% discount more
then $5,000.00. Just that I then discovered that they had charged me for 30 percent more roof tiles then
actually were on my roof. Meaning, that the 20% discount was really a bogus offer. So, I then contacted
another roofer, who was willing to do the roof, cash in hand, for $1,100.00 About three weeks after the job
was done, an electrician basically vandalised my roof considerably. So, I phoned the roofer and asked if he
could fix the damages, and explained the electrician having caused the damage. He advised he would come
the next day. He turned up and did the repair and I then asked how much the repair was. He made known
NO CHARGE!
Even so there was no paperwork involved, it is clear that the after service was not any less for it.
The issue of this story is really that by paying cash, without any issue of receipts, I assume that it was of the
records, and so no taxation records being kept.
Would I really worry about this, where I like to have my roof repaired, and get it for more then $4,000.00
less? Why should I worry if the roofer charges GST or not and pays this? As a customer all I wanted was to
get my roof repaired and I got this done!
Take for example the repairs to be done to a house.
In this case, I found to have root damage to sewerage pipes and storm water drains as result of my neighbours
trees. What I discovered was, that an certain elbow cost $2.55 at Mitre 10 in Heidelberg., $4.65 at Mitre 10 in
Watsonia and $6.90 at Bunnings in Preston.
Likewise numerous other items were at times a third of the price. As such, it is worthwhile for me to purchase
my own parts needed for repairs.
I can purchase a boot load of gold plated and other tap ware from Bunnings for $200.00 where normally one
set of gold plated taps cost more then $270.00
Likewise, I do so with electrical items.
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Next, I had this electrician coming in and I made clear I had already all the items he possibly could need!
Obviously as if he charges me, he charges me GST on top of GST already calculated. So, by going out and
buy in bulk, I end up paying less then I would otherwise pay for just one item. Why should I concern myself
about the GST component?
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When you go to a market, you find stall holders selling their wares, and some show a GST inclusive price and
others do not. One would be an utter fool to think that those who charge GST actually will be paying all this
GST collected to the Taxation Department.
Most use the GST as an extra revenue income for themselves!
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As Author of books, I am able to talk to people, and they give me the understanding that by not even
declaring what they are selling, any GST component therefore is either declared.
Here you have a guy going to an auction and buy up goods for hundreds of dollars and then sell it at the
market with huge profits and of course GST added. Because the buy in was only a few hundred dollars there
is no way the taxation department could possible trace how much items were sold for. As such, there is a
considerable GST black market.
In my view, if, for example, the government could video tape each and every transaction occurring, say, at
Thomastown flee market for one day and then were to compare the income declared actually having been
received, then most likely less then 10% of all sales are reported.
Meaning, that about 90% of sales are not declared! What this means is, that the GST in fact encourage
dishonest declaration of income. It also means that those who run a honest business are ending up to pay the
additional taxes others are withholding from Consolidated Revenue.
When I was shopping at Safeways, Heidelberg, and the power went of, the staff then stood at the register and
asked if their estimate of value was acceptable, and accepting this, you paid and left. No docket or other
records kept. No GST records either!
This GST issue, in my view, is the worst possible thing that could have happened, beside the unconstitutional
element in it. How absurd is this GST in any event?
If you have an income from business below a certain amount per year then no GST (ABN) number is
required, and so you neither can charge GST.
Meaning, that whatever you may sell you cannot charge GST.
How then is a customer to know if you do or do not charge GST?
What if the person is not charging GST, and by hindsight discover he is well over the GST threshold and
should have charged GST?
One business man once went to court and declared he only had a pay packet of $100.00 a week. The judge
(Family Court of Australia) made clear he was not interested what this person claimed to pay himself as to
him it was bogus.
I understood that this business man simply was buying in goods and selling them of the record, AND SO
AVOIDING PAYING TAX AT ALL.
END QUOTE 25-3-2005 CORRESPONDENCE
Here we have traders who effectively do not issue Tax Receipts, this even so one was boosting to
have sold 50 items of $200 each to one buyer alone, and this besides other items to the same
purchaser! This particular trader, as I understands it, purchases on auctions items (which I
understand were confiscated and then sold on auctions) making huge profits and yet issue no tax
receipts. What kind of a system is this where there is no paper work to trace the income of a
merchant, this as he shouts out prices and then people hands over monies without any paperwork,
sales invoices, etc, to record how much is being collected in a day of sales.
QUOTE 18-5-2004 CORRESPONDENCE TO John Howard
On Sunday, I visited the Thomastown market (Melbourne suburb) and saw how people were selling items
without a single tax receipt being passed on. And, you find the same in many other markets around the
country. I oppose the GST as being unconstitutional, but why is it that those people who have honesty in their
business are forced to pay GST, while others can sell a truck load of goods on a Sunday, and not pay a cent
tax, let alone GST?
END QUOTE 18-5-2004 CORRESPONDENCE TO John Howard
QUOTE 18-5-2004 CORRESPONDENCE TO John Howard
It is very common to get offered that the cash price is much lower then one that requires a tax receipt.
Basically, those doing business without documentation do not report it for taxation purposes and so give the
customer a product without GST charge and the business itself saves on income tax. This whole GST, in my
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view, is a fiasco, that caused the flourishing of extra GST income which never then is declared to the
Taxation Department. Unless the Commonwealth introduces that all cash transactions must be recorded on a
NUMBERED taxation docked, I view you never get it right!
END QUOTE 18-5-2004 CORRESPONDENCE TO John Howard
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Just attend to the market and look out for someone selling from the back of the truck and the
many of thousands of dollars he has in sales in one day alone! It means not only not paying GST
but neither likely paying any other taxes! As such, the lack of proper taxation controls means that
those a voiding/evading paying their share of taxation causes others to pay more to make up the
difference.
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WITHOUT PREJUDICE
Mr John Howard
Parliament House, Canberra,
Fax 02 6273 4100 Ph; 02 6277 7700 C/o David.Hawker.MP@aph.gov.au
Cc;
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29-8-2005
Mr Kim Beezley, Leader of Her Majesty (Federal) Opposition, Kim.Beazley.MP@aph.gov.au

Mr Bob Brown, Senator (Greens) senator.brown@aph.gov.au
Senator Lyn Allison (AD) senator.allison@aph.gov.au
Mark Vaile (Nationals) mark.vaile.mp@aph.gov.au
Re; PRICES, TAXATION, etc
Peter Costello, treasurer, David.Hawker.MP@aph.gov.au
AND TO WHOM IT MAY CONCERN
Sir,
Yesterday, again visiting the Thomastown market, I noticed that prices charged can be fluctuating anything
lower then or above prices charged in, so to say, shop front businesses.
For example, a 40 mm elbow (pipe fitting) at the marked for sale for $2.00 is at Mitre 10 about $1.35 while at
Bunnings about $2.10. the difference is that both Mitre 10 and Bunnings provide a GST component docket,
where as on the market no GST documentation is included. As such, compared to Mitre 10 $1.35 charge
including GST the market price is not only considerable higher, but what controls are there to ensure that
appropriate taxation component is not only applied but in fact paid in to the Consolidated Revenue?
When attending to a greenery, the prices quoted I discovered were excluding GST, albeit that is what is
discovered after one receive the receipt of payment. This, while in another greenery, prices quoted are
including GST. As such, prices are up the creek, so to say, as a customer comparing prices is not aware if the
GST component is included or not, unless one specifically request for clarification that one often doesnt
think about. While I am an opponent of GST (for constitutional reasons), if the government persist to charge
GST then surely this must be done in a manner that the customer is quoted prices that includes GST and it is
ensured that the Commissioner of Taxation applies it across the board and not allow vendors at markets to
undermine legitimate businesses who are facing huge overhead cost on shopfront, employees, etc while the
market vendor, can, so to say, make a killing in a day far beyond any legitimate seller can in a shop front
retailing business. Where is the business fairness?
Awaiting your response, G. H. SCHOREL-HLAVKA
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While the GST was to fix all problems, it really ensured that the crooks got a better deal by charging GST on
top and keep this also.
One only has to go to a week-end market to understand how many millions of dollars is traded without GST!
Yet, when one compare prices then the same charge is made. For an example an item X (toilet paper) for
$3.99 at Kmart (inclusive GST) sells at the market for $4.00. Same brand!
Considering the overhead cost of Kmart versus that of thew weekend trader then the weekend trader is
making a huge profit! And not only keeping the GST but also any other tax component.
More than 10 years later the same remains to be applicable!

If you read my various writings then it is clear I urged the Federal Government to by law require
all market transactions to be done with receipts that are numbered with the traders identity on it.
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Just that more than 10 years on this still has not eventuated. As in Sydney Municipal Council
versus Commonwealth (1904) the High Court of Australia held that council rates were an
exercised of delegated powers of the state and for purpose of s114 of the constitution the councils
were perceived as a State, then clearly once the Land Tax Office commenced on 11 November
1910 all council rates became un constitutional as the States no longer could levy land taxation.
While it is argued that s51 is a concurrent legislative provision the truth is that it was only until
the Commonwealth commenced to legislate, as then it became an exclusive legislative power.
.
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QUOTE
Mr. BARTON.-I was going to explain when I was interrupted that the moment the Commonwealth
legislates on this subject the power will become exclusive.
END QUOTE
QUOTE
Mr. BARTON (New South Wales).-If this is left as an exclusive power the laws of the states will
nevertheless remain in force under clause 100.
Mr. TRENWITH.-Would the states still proceed to make laws?
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Mr. BARTON.-Not after this power of legislation comes into force. Their existing laws will, however,
remain. If this is exclusive they can make no new laws, but the necessity of making these new laws will be
all the more forced on the Commonwealth.
END QUOTE
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As such, while the State of Victoria for example applies state land taxes as well as
municipal/shire councils likewise do the same in the form of council rates in reality they are
and remain to be UNCONSTITUTIONAL since 11 November 1910! It is therefore essential
that the Commonwealth first sort out the existing taxation regime and not that a foreign investor
pays land taxation to the Commonwealth, the relevant State and also to a municipal/shire
council! The foreign investment taxation, as for all purposes and intent this is a land tax.
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QUOTE EMAIL
Chinese investors lead way in foreign home buyers in Australia
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Jim
May 1 at 7:57 PM
To
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Imbeciles like Joe Hockey and other traitors in the federal and state governments who
continue supporting the unrestricted sale of Australian assets, land and property to
foreign investors and corporations need to be given lifetime prison sentences.
The way things are going this country will be wholly owned by foreign investors and
corporations within two to three generations, and likely be renamed "Australasia"
permanently to more accurately reflect what it is becoming.
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Jim
Chinese investors lead way in foreign home buyers in Australia
news.com.au
Real Estate
Nicole Engwirda, Herald Sun
April 30, 2015
FOREIGN investment in Australian residential real estate doubled in the last
financial year and Victoria saw the lions share of the action.
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More than 10,000 approvals were granted to foreign investors in the state property
market, according to the Foreign Investment Review Board annual report.
This included $14 billion worth of investment in residential real estate.
Chinese investors outweighed other nationalities buying property in Australia,

splurging $12.406 billion on real estate across the country.
It is the first time China has eclipsed the spend from other countries.
The Chinese investment in real estate dwarfed the $6.135 billion from US investors
and $2.945 billion from Canadians, who were the next biggest spenders.
Treasurer Joe Hockey said foreign investment was critical to the Australian economy.
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We welcome all foreign investment that is not contrary to our national interests, Mr
Hockey said.
Real Estate Institute of Victoria spokesman Paul Bird said interest from overseas
buyers had buoyed some segments of the market.
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Foreign investment is intended to increase the supply of housing and it has certainly
helped the apartment market in the last 12 months, Mr Bird said.
Glen Waverley and Mt Waverley are Melbourne hot spots for Chinese buyers, ranking
as the most popular suburbs in Australia on a Chinese property portal.
Doncaster and Balwyn were also sought-after by buyers searching on REA-operated
myfun.com in 2014.
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Harcourts Judd White director Dexter Prack said the number of foreign investors in
Monash was climbing, but Australian residents of Chinese descent had a much larger
market share.
Melbourne also rated as one of the worlds top cities for Chinese buyers, according to a
luxury real estate website.
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It was the only Australian city to make the top 20 global destinations searched by
Chinese buyers on propgoluxury.com.
http://www.news.com.au/finance/real-estate/chinese-investors-lead-way-in-foreignhome-buyers-in-australia/story-fncq3era-1227328986436
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END QUOTE EMAIL
It seems clear to me that we need a treasurer who first of all understands/comprehends what is
appropriate regarding taxation matters and take appropriate action against any unconstitutional
taxation levied in whatever manner. Then pursues what the Commonwealth Parliament considers
appropriate taxation. No amount of taxation will resolve any problems as they only so to say
become bigger problems. The spending spree within the Commonwealth needs to be curtailed
big time! Then the Commonwealth must clarify taxation structure and indeed other issues (too
many now to refer to) so that the Commonwealth instead of forever increasing taxes learn to
manage within the taxation collected. Hence, clamping down on tax avoiders who may pay next
to no tax, this even so as a business entity if declaring all income would be liable to a certain
level of taxation, may perhaps see billions of dollars being raised without ordinary taxpayers
have to suffer any tax increases. I do not propose to claim the Commonwealth cannot apply a
land tax on foreign investors because it was to my understanding precisely this which created the
land Tax Office, but that it must be done in an appropriate manner considering the surviving
parts of the Land Tax Abolition Act 1952. Here we have naturalization made easier for people
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investing millions of dollars in the Commonwealth of Australia, as allegedly this provides
monies whereas in reality all we need is a competent treasurer who makes clear that all
businesses must issue a transaction/tax receipt. When you consider the thousands of markets all
over the Commonwealth of Australia then this represents likely millions of dollars on lost
taxation every market day! When billions of dollars are raised in GST by traders but only that
which is declared is collected, and not even then all of it, and there is no ATO (Australian
Taxation Office) records as to who paid how much GST and who received how much GST then
this is totally disorganised. As I explained Kmart was selling the toilet rolls for $3.99 which
includes its overhead cost and GST, etc, whiled the market trader was selling the same brand in
the same package for $4.00 without any GST receipt, etc. It is not that the customers should pay
more taxes but that we lack competent treasurers who clamp down on non-declared GST income.
Nothing in the above ought to indicate I somehow agree with the GST but merely seeks to point
out that the GST is not only unconstitutional but totally mismanaged in many ways. And it is not
a State tax but a Commonwealth tax. It is not a State tax collected by the Commonwealth either
albeit this seems to be the deceptive version given to the public.
I now will quote the 14-1-2015 correspondence:
QUOTE 14-1-2015 CORRESPON DENCE
WITHOUT PREJUDICE
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Mr Tony Abbott PM
14-1-2015
Cc:
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The mayor & councillors Buloke Shire Council buloke@buloke.vic.gov.au
The mayor & councillors Banyule City Council enquiries@banyule.vic.gov.au
Ref; 20150114-G. H. Schorel-Hlavka O.W.B. to Mr Tony Abbott PM-Re where the hell are you?
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Tony,
as a CONSTITUTIONALIST I ask; Where the Hell are you?
QUOTE
Mr. HIGGINS.-Suppose the sentry is asleep, or is in the swim with the other power?
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Mr. GORDON.-There will be more than one sentry. In the case of a federal law, every member of a
state Parliament will be a sentry, and, every constituent of a state Parliament will be a sentry.
As regards a law passed by a state, every man in the Federal Parliament will be a sentry, and the whole
constituency behind the Federal Parliament will be a sentry.
END QUOTE
The following will also make clear that the Framers of the Constitution intended to have CIVIL
RIGHTS and LIBERTIES principles embedded in the Constitution;
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HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National
QUOTE Mr. CLARK.the protection of certain fundamental rights and liberties which every individual citizen is entitled to
claim that the federal government shall take under its protection and secure to him.
END QUOTE
HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National
QUOTE Mr. DEAKIN.What a charter of liberty is embraced within this Bill-of political liberty and religious liberty-the
liberty and the means to achieve all to which men in these days can reasonably aspire. A charter of
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liberty is enshrined in this Constitution, which is also a charter of peace-of peace, order, and good
government for the whole of the peoples whom it will embrace and unite.
END QUOTE
And
HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
Mr. SYMON (South Australia).- We who are assembled in this Convention are about to commit to the
people of Australia a new charter of union and liberty; we are about to commit this new Magna Charta
for their acceptance and confirmation, and I can conceive of nothing of greater magnitude in the whole
history of the peoples of the world than this question upon which we are about to invite the peoples of
Australia to vote. The Great Charter was wrung by the barons of England from a reluctant king. This new
charter is to be given by the people of Australia to themselves.
END QUOTE
So let us look at Commonwealth legislation.

LAND TAX ABOLITION.

No. 81 of 1952.
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[Assented to 6th November, 1952.]
B E it enacted by the Queen's Most Excellent Majesty, the Senate, and the House of
Representatives of the Commonwealth of Australia, as follows :-
1. This Act may be cited as the Land Tax Abolition Act 1952.
2. This Act snall be deemed to have come into operation on the first day of July, One thousand nine
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hundred and fifty-two.

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While the Commonwealth abolished the payment of land taxation it did however also show:
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This part of the law remains in force and so also the right of uniform taxation (land tax)
throughout the Commonwealth, and no land taxation can be applied and any State
(delegated municipal/shire council rates are therefore in violation of this part of the act!
Further, constitutionally while the States can refer to the Commonwealth within s51(xxxvii)
legislative powers the constitution (Commonwealth of Australia Constitution Act 1900 (UK)
doesnt allow for a reversal of legislative powers.
Further, In Sydney Council v Commonwealth (1904) the High Court of Australia held that
council rates were a delegated State power of land taxation.
At that time State land taxation was valid however when the Commonwealth commenced the
Land Tax Office on 11 November 1910 then State land taxation and so the delegated
municipal/shire council rates no longer ware legally permissible.
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Nevertheless municipal/shire councils continue to charge rates (a form of land taxation) in
defiance of s109. As the Framers of the Constitution made clear any taxation collected without
legal justification has to be refunded.
I recall in the past having raised with Buloke Shire Council the issue of unconstitutional rates and
as such Buloke Shire Council having nevertheless ignored this I view would have a case to
answer.
QUOTE
Mr. HOWE.The sub-section would not interfere with the right of any state to act in the meantime until the Federal
Parliament took the matter in hand.
END QUOTE
Clearly it is only until the Commonwealth legislates upon a subject that the states have
concurrent legislative powers. The moment the Commonwealth commenced to legislate it
was a different legislative area, that of the Commonwealth. Only the Commonwealth could have
re-introduced any land tax system. And it can only do so in a uniform manner. Hence, it
couldnt retrospectively validate non-uniform rates.
Again:
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As this is a law that is still in force then s109 of the constitution applies.
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QUOTE Commonwealth of Australia Constitution Act 1900 (UK)

109 Inconsistency of laws
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the
former shall, to the extent of the inconsistency, be invalid.
END QUOTE
For the above the Ab olition of land taxes was more than just to abolish land taxes as it also
prohibited any further land taxation!
Below is a mere few quotations of a long record of correspondences but which may clarify what
is wrong with how state government perceive matters, as shown above Commonwealth
legislation remains in force!
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This as section 4 clearly in itself abolished land taxation as from 1 July 1952 and or in respect of
any subsequent financial year. And as such section 3 was not required unless it specifically
prohibited any future land taxation.

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In University of Wollongong v Mohamed Naguib Fawzi Ahmed Metwally & others [1984]
HCA 74; (1984) 158 CLR 447 (22 November 1984) the High Court of Australia held that when
the Commonwealth abolished a certain law then the states can continue to apply its previous
legislation which so to say was held to be on hold where it violated s109 of the constitution,.
However, this I view is an incorrect reading of s109 and the court at no time in fact referred to or
quoted the Hansard records of the Constitution Convention Debates (Official Record of the
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Debates of the National Australasian Convention) but instead sought to analyse the wording
in the constitution as to what might be applicable in other jurisdictions.
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University of Wollongong v Mohamed Naguib Fawzi Ahmed Metwally & others [1984] HCA 74; (1984) 158 CLR
447 (22 November 1984
QUOTE
In its express stipulation of invalidity, the section has no parallel in the Constitutions of the United
States or Canada and there is little point in looking to decisions of the Supreme Courts of those
countries for assistance in the resolution of the question involved in the present case
END QUOTE
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Indeed, one must first consult Hansard records to gather the intentions of the Framers of the
Constitution and then it is very clear that any s52 of the constitution subject matter upon which
the Commonwealth legislate then be comes as like s52 an exclusive legislative power.
While the constitution in s51(xxxvii) provides for the States to refer legislative powers to the
Commonwealth the reverse is not provided for.
The Commonwealth cannot allow States to legislate on its behalf, as some of the judges of the
High Court of Australia seemed to imply as once under Commonwealth law then only
Commonwealth can legislate.
Neither could the Commonwealth retrospectively repeal section 3 of the LAND TAX
ABOLITION C1952A00081, as a way to try to pursue to legally justify municipal/shire
delegated taxation powers of land taxes(rates) or the States themselves having legislated for land
taxation in addition to the municipal/shire councils already doing so (as such doubling up land
taxation Land Tax Act 2005 Victoria) this as all landholders currently have the legislative right
for uniform taxation, so land taxes and as council/shire rates are held by the High Court of
Australia in Sydney Council v Commonwealth (1904) to be a State delegated power of taxation
then such retrospective validation of double land taxation can n either be legally justified.
Neither can the Commonwealth authorise the States (so also or as delegated land taxation
powers) the municipal/shire councils retrospectively having applied land taxers (including rates)
for and on behalf of the commonwealth, this as all land taxes(rates) must be uniform throughout
Australia, and also all taxes must be paid into the Commonwealth consolidation funds and
monies could only be drawn by way of Appropriation Bills.
.
Therefore, there so to say would be an almighty headache for the commonwealth to try to
retrospectively claim that land taxes by the States (including the municipal/shire councils rates)
are Commonwealth taxes as no uniform state land taxes (including municipal/shire council
rates) are uniform throughout Australia. The same applies to a Territory and its municipal/shire
councils!
And it would be absurd for the Commonwealth to try to raise Appropriation bills retrospectively
way back to 1952 as to pretend those Appropriation Bills were to justify the monies fraudulently
collected by the States/Territories and so also municipal/shire councils.
.
QUOTE
Mr. ISAACS.-You are referring to paragraph (4) of clause 52?
Mr. HOLDER.-Yes.
50
Mr. OCONNOR.-But that money could not be spent upon any object the Federal Parliament thought
fit.
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11
Mr. HOLDER.-I want an expression of opinion which shall be authoritative on the point. I see that,
according to the provision I have quoted, there is power given to the Federal Parliament to borrow money on
the credit of the Commonwealth, and I say again that I do not know of any limitation of the expenditure of
that money except the limitation which would be specified in the Loan Act authorizing the borrowing of the
money. Of course, these words cover the raising of the money for the building of railways for instance, and in
such a case the limitation would be the terms of the Loan Act. But is there anything anywhere to prevent a
Loan Act being passed by the Federal Parliament authorizing the raising of a certain sum of money, the
proceeds of which loan might be divided according to the terms of the Act among the states according to their
needs, or upon some other principle?
10
Mr. GLYNN.-The first three lines of clause 52 affect that point.

Mr. ISAACS.-The money must be expended with regard to "the peace, order, and good government
of the Commonwealth," not of the states.
END QUOTE
15
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30
While s96 was at that time rejected as such but later inserted in the constitution on the Premiers
conference nevertheless it is a loan to the State concerned and not to municipal/shire councils.
The Commonwealth cannot magically create Appropriation Bills regarding past years nor to
benefit municipal/shire councils or even States/Territories by hindsight.
Actually the current system as to taxation bills and Appropriation Bills is ain an utter mesh
because the constitution requires that all taxation bills and Appropriation Bills must be passed
before the commencement of the financial year they relate to. Considering the possibility of a
rejection by the Senate and a DOUBLE DISSOLUTION then the time this may take of about 6
months means Taxation bills and Appropriation bills for the new financial year must be
introduced into the Parliament so to say before the Christmas of the preceding calendar year of
the new financial year.
Clearly you have not managed to get the current financial year taxation bills passed and as such
as we have a responsible government then the government should have advised the governorGeneral for a DOUBLE DISSOLUTION this as it failed to have its Taxation Bills passed.
Putting taxation/Appropriation Bills before the Senate in a hurry because of the so called budget
handed down in may rather the previous calendar year in violation to what is constitutionally
required was deemed by the Framers of the Constitution to be an act of terrorism!
Hansard 9-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian
Convention)
QUOTE
35
Sir JOHN DOWNER.-I know that my right honorable friend, judging probably from the time I am taking
now, thinks that in such a case I would take a long time, if I were in the Senate. I admit that his surmise is
quite right in my case. I admit there are persons on whom this terrorism could not be practised, or on
whom, if practised, it would probably not be effective. But I am thinking of persons of weaker minds and
wills, and I say that, as far as this Constitution is concerned, it is absolutely necessary to put some provision
in this Bill which will strengthen the Senate and prevent it being intimidated in the way indicated. We have
been frittering away the first principles of the Federal Constitution long enough.
40
END QUOTE
45
In fact each time the Senate is deprived of sufficient time to consider the Bill before it then it is
an act of terrorism.
.
50
One hardly could expect a Prime Minister unable to get his own Taxation Bills in order for the
new financial year then to try to fool around with Appropriation Bills of not years but decades
past.
.
Considering the lies you gave prior to the 2013 federal election then I view your position as
Prime Minister and those of fellow ministers no longer is tenable!
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35
12
My wife is 82 and partly blind and fear to go to a doctor because of how you are wrecking the
system like Medicare, and this while she is so afraid that she even maintains private health
insurance.
Where are you to ensure that State/Territorian governments and any delegated powers to
municipal/shire councils are limited to the CPI, since in 2009 pensions and other welfare
payments are linked to the CPI?
Lets not overlook the unconstitutional about $8 billion dollars Treasurer Joe Hockey authorised
to be paid to the Reserve Bank of Australia, this even so at the time no appropriation bills was
providing for this, and in fact no parliament had been sworn in,. As such this I view was fraud on
a grand scale.
Because judges are appointed to the high court of austraklia often without any competence in
constitutional matters we have even after some 114 years after federation that judges still havent
got a clue what the true meaning and application of the constitution stands for.
We have judges travelling the world with their partners instead of learning what the true meaning
and application of the constitution stands for.
Hence, we need the OFFICE-OF-THE-GUARDIAN (Dont forget the hyphens!) a
constitutional council that advises the Parliament, the People, the government and the Courts as
to the true meaning and application of the constitution, and this to be under the direction of the
Governor-General, this as to avoid political meddling.
HANSARD18-2-1898 Constitution Convention Debates (Official Record of the Debates of the National
QUOTE Mr. ISAACS.The right of a citizen of this great country, protected by the implied guarantees of its Constitution,
END QUOTE
QUOTE Mr. HIGGINS:
I think it is advisable that private people should not be put to the expense of having important
questions of constitutional law decided out of their own pockets.
END QUOTE
Currently ordinary citizens fear to go to court because of the exorbitant charges against them of
cost, merely where they seek clarification of constitutional matters. The OFFICE-OF-THEGUARDIAN (Dont forget the hyphens!) can avoid such cost to an ordinary citizen where it
were to participate or on its own pursue constitutional matters.
.
40
45
50
There is a lot more to it all and well I view a VELVET REVOLUTION is likely the only
answer to throw all current politicians out of their abuse of power positions and to get real
representatives who will act as agents of the People.
QUOTE
Mr. BARTON.- Having provided in that way for a free Constitution, we have provided for an
Executive which is charged with the duty of maintaining the provisions of that Constitution; and,
therefore, it can only act as the agents of the people.
END QUOTE
Again:
QUOTE
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13
Mr. GORDON.-There will be more than one sentry. In the case of a federal law, every member
of a state Parliament will be a sentry, and, every constituent of a state Parliament will be a
sentry. As regards a law passed by a state, every man in the Federal Parliament will be a
sentry, and the whole constituency behind the Federal Parliament will be a sentry.
10
15
END QUOTE
And before going to the various correspondences regarding the unconstitutional land taxes let me
also point out that the States, such as Victoria, having legislated as to laser speed cameras and
other electronic units this even so the Commonwealth holds the constitutional powers as to
weights and measurements and as such where the Commonwealth already legislated on this
subject then for this also the States legislation by s109 is unconstitutional. It is not for the States
to work around the commonwealth to legislate as to some device merely because the
commonwealth for whatever reason didnt legislate for it. Because any subject matter in s51
becomes exclusive legislative power of the Commonwealth once it commenced to legislate on
the subject master then all State legislation is unconstitutional regarding any radar/laser speed
detection device not certified by the Commonwealth. However despite of this my past writings
has not resulted to any proper action by the Commonwealth to deal with the unconstitutional
state
legislation.
It
means
that
the
Commonwealth
knowingly
allow
State terrorism upon citizens.
20
Now some of past communication about Land taxation but first I repeat my correspondence to
Senator Cory Bernardi regarding constitutional issues
QUOTE 20150113-G. H. Schorel-Hlavka O.W.B. to Senator Cory Bernardi - Re 18c etc
25
WITHOUT PREJUDICE
Senator Cory Bernardi
13-1-2015
cory@corybernardi.com
Cc:
30
35

Mr Tony Abbott PM
Ref; 20150113-G. H. Schorel-Hlavka O.W.B. to Senator Cory Bernardi - Re 18c etc
40
45
Cory,
as a CONSTITUTIONALIST and retired Professional advocate (where I also represented
solicitors and barrister in litigation) I desire to explain what the true meaning and application
stands for in regard of certain issues.
http://www.abc.net.au/newsradio/content/s4160760.htm
QUOTE
Senator Cory Bernardi calls for new debate on racial vilification
South Australian Senator Cory Bernardi has renewed calls for changes to the Racial
Discrimination Act to allow unfettered debate of terrorism and other issues.
The government last year dropped plans to abolish provisions in Section 18c of the Act
which make it illegal to "insult offend or humiliate" people on the basis of race.
50
Senator Bernardi argued for those provisions to be scrapped. He now wants that issue reopened.
p13
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"Any suggestion that we shouldn't have freedom of speech or shouldn't be able to discuss
controversial issues because we're going to insult and offend some others I think hands
those who want to stifle our freedoms a victory," he told ABC NewsRadio's Marius
Benson.
5
"I'm not prepared to do that under any circumstances. I want to see this country maintained
as a harmonious one and I want to protect and preserve the freedoms that we have."
END QUOTE
10
And I wrote to you

QUOTE
From: Cory Bernardi <cory@corybernardi.com>
To: mayJUSTICEalwaysPREVAIL@schorel-hlavka.com
Cc:
Date: Monday, January 12, 2015 07:04 pm
Subject: Message Acknowledgement from CoryBernardi.com
Thanks for the message you sent to me today via my website.
15
Due to the high volume of correspondence I receive it isn't possible to respond to every message personally, however
please be assured your communication will have been received and read by me.
Thanks again for getting in touch.
20
Cory Bernardi
Liberal Senator for South Australia
Your message:
First Name
Gerrit Hendrik
Last Name
Schorel-Hlavka O.W.B.
Email
mayJUSTICEalwaysPREVAIL@schorel-hlavka.com
State
Victoria
Purpose
Comment/Other
Question/Comment
Cory, as a CONSTITUTIONALIST I take the position that the Framers of the Constitution embed in the
constitution political and religious liberty as well as that the Commonwealth had no legislative powers as to
race issues against the "general community".
If you provide an email address I will set it out in more detail, quoting the Framers of the Constitution.
25
END QUOTE
I will now attend to this matter.

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Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi [1999] HCA 27
(17 June 1999)
QUOTE
Constitutional interpretation
1.
10
The starting point for a principled interpretation of the Constitution is the search for the intention of its
makers[51]. That does not mean a search for their subjective beliefs, hopes or expectations. Constitutional
interpretation is not a search for the mental states of those who made, or for that matter approved or
enacted, the Constitution. The intention of its makers can only be deduced from the words that they used in
the historical context in which they used them[52]. In a paper on constitutional interpretation, presented at
Fordham University in 1996, Professor Ronald Dworkin argued, correctly in my opinion[53]:
"We must begin, in my view, by asking what - on the best evidence available - the
authors of the text in question intended to say. That is an exercise in what I have called
constructive interpretation[54]. It does not mean peeking inside the skulls of people dead
for centuries. It means trying to make the best sense we can of an historical event someone, or a social group with particular responsibilities, speaking or writing in a
particular way on a particular occasion."
15
END QUOTE
20
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35
QUOTE Mr. DEAKIN (Victoria).The record of these debates may fairly be expected to be widely read, and the observations to which I
allude might otherwise lead to a certain amount of misconception.
END QUOTE
QUOTE
Mr. DEAKIN: I think it is unkind, when struggling with one misfortune, to be reminded of another. The
difficulty of dealing with taxation cannot be mitigated by remembering that we have an upper house. I rose
simply to point out that if these debates are, as they will be, criticised by the enemies of federation, it is
desirable that our language should be as accurate as possible, and we should hasten to explain even apparent
misconceptions which may arise from the language of hon. members.
END QUOTE
The Commonwealth of Australia Constitution Act 1900 (UK) was drafted by the Framers of the
Constitution considering the following:
.
40

QUOTE
Mr. CARRUTHERS:
This is a Constitution which the unlettered people of the community ought to be able to understand.
END QUOTE
.
45

QUOTE Mr. SYMON (South Australia).-
50
55
That this is not like an Act of Parliament which we are passing. It is not in the position which Mr. Barton has
described, of choosing or setting up a code of laws to interpret the common law of England. This
Constitution we are framing is not yet passed. It has to be handed over not to a Convention similar to
this, not to a small select body of legislators, but to the whole body of the people for their acceptance or
rejection. It is the whole body of the people whose understanding you have to bring to bear upon it, and
it is the whole body of the people, the more or less instructed body of the people, who have to
understand clearly everything in the Constitution, which affects them for weal or woe during the whole
time of the existence of this Commonwealth. We cannot have on the platform, when this Constitution is
commended to the people, lawyers on both sides, drawing subtle distinctions, which may or may not be
appreciated by the people.
END QUOTE
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16
10
15
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25

QUOTE
Mr. ISAACS.-We want a people's Constitution, not a lawyers' Constitution.
END QUOTE
HANSARD18-2-1898 Constitution Convention Debates
END QUOTE
QUOTE
Mr. BARTON.- Of course it will be argued that this Constitution will have been made by the Parliament of
the United Kingdom. That will be true in one sense, but not true in effect, because the provisions of this
Constitution, the principles which it embodies, and the details of enactment by which those principles
are enforced, will all have been the work of Australians.
END QUOTE
QUOTE
END QUOTE
And we also should consider the following:

QUOTE
Mr. BARTON.-We are going to suggest that it should read as follows:-
30
35
40
the people of any race for whom it is deemed necessary to make any laws not applicable to the general
community; but so that this power shall not extend to authorize legislation with respect to the affairs of
the aboriginal race in any state.
Mr. ISAACS.-My observations were extended much further than that. The term general community" I
understand to mean the general community of the whole Commonwealth. If it means the general
community of the whole Commonwealth, I do not see the meaning of saying that the Parliament of the
Commonwealth shall have the exclusive authority to do that, because any single state would have the right to
do it under any circumstances. If it means less than that-if it means the general community of a state-I do not
see why it should not be left to the state. We should be placed in a very awkward position indeed if any
particular state is forbidden to pass any distinctive legislation in certain well-known instances. For instance, if
Victoria should choose to enact that Afghans shall only get hawkers' licences under certain conditions which
are not [start page 228] applicable to Europeans she may be debarred by this sub-section from doing so. I do
not know how it will affect our factory law in regard to the Chinese which does not operate beyond the
confines of Victoria at all.
Sir EDWARD BRADDON.-Why single out the Afghans?
45
Mr. ISAACS.-If any other race possess the same characteristic as the Afghans I will put them in the same
class. At all events, the expression general community" means the whole community of the Commonwealth. I
do not think that this has any application. If it is to have any application at all, it seems to me to be intended to
debar the state from passing legislation-necessary legislation, but purely confined to that state. I do not think
that that sub-section ought to be there at all if that is the meaning of it.
50
Mr. BARTON (New South Wales).-I think the original intention of this sub-section was to deal with
the affairs of such persons of other races-what are generally called inferior races, though I do not know
with how much warrant sometimes-who may be in the Commonwealth at the time it is brought into
existence, or who may under the laws of the Commonwealth regulating aliens come into it. We have
made the dealing with aliens, which includes a certain degree of coloured immigration, a power of the
Commonwealth, and we have made the dealing with immigration a power of the Commonwealth, so
that all those of the races who come into the community after the establishment of the Commonwealth
will not only enter subject to laws made in respect to their immigration, but will remain subject to any
55
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17
laws which the Commonwealth may specially devise for them. There is no reason why the Commonwealth
should not have power to devise such laws.
Sir GEORGE TURNER.-An exclusive power?
Mr. BARTON.-It ought to have an exclusive power to devise such laws.
Sir GEORGE TURNER.-If it does not exercise it can the state exercise it?
Mr. BARTON.-Once the Commonwealth legislates with reference to the question of aliens and
immigration, its legislation displaces the state law.
END QUOTE
10
15
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25
30
35
Therefore, it should be clear that any race law enacted by the Commonwealth of Australia cannot
be held against the general community. The problem we have however is that the judges of the
High court of Australia are appointed regardless they may never have previously dealt with
constitutional issues, and hence they have their learner (P-Plate) while already deciding
constitutional issues. In University of Wollongong v Mohamed Naguib Fawzi Ahmed Metwally
& others [1984] HCA 74; (1984) 158 CLR 447 (22 November 1984) the High Court of Australia
was dealing with s109 and its meaning. And seems to have relied upon numerous precedents,
even so they were handed down at a time the High Court of Australia didnt allow the Hansard to
be used, which it changed since the Tasmania Dam case. Many past decisions made without
considering the Hansard records were then misinterpreted and as such the High Court of
Australia relying on them clearly is a continued error. Moreover, judges tend to refer to what the
meaning of words are in other jurisdiction rather than to consider what it was that the Framers of
the Constitution stated and as such is applicable.
The High Court of Australia therefore hold that s51 is providing concurrent legislative powers
It argued that one has to consider words in the way it is used in other countries and that States
can continue to legislate but Section 109 provides that the Commonwealth law is overriding.
Reality is that s109 has the purpose that where there is existing colonial/State law and the
Commonwealth commences to legislate within its legislative powers or incidental to it then s109
applies. As the Framers of the Constitution made clear that concurrent legislative powers only
exist until the Commonwealth commences to legislate then as like s52 it becomes exclusive
legislative powers.
QUOTE
Mr. BARTON.-I was going to explain when I was interrupted that the moment the Commonwealth
legislates on this subject the power will become exclusive.
END QUOTE
QUOTE
40
Mr. BARTON (New South Wales).-If this is left as an exclusive power the laws of the states will
nevertheless remain in force under clause 100.
Mr. TRENWITH.-Would the states still proceed to make laws?
45
50
Mr. BARTON.-Not after this power of legislation comes into force. Their existing laws will, however,
remain. If this is exclusive they can make no new laws, but the necessity of making these new laws will be
all the more forced on the Commonwealth.
END QUOTE
QUOTE
Sir JOHN DOWNER.-There must be some body which deems it necessary, and the only body to which
the words can refer is the Commonwealth Parliament. What very substantial difference does it make whether
we leave the provision as it stands or put it into clause 52? True, if the provision is left where it stands, the
p17
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18
10
Federal Parliament will have exclusive power in connexion with this matter; but that body will only have
exclusive power when it chooses to exercise it. It is only when the Federal Parliament has passed
legislation dealing with the people about whom regulations are to be made that this exclusive power
will have arisen.
END QUOTE
QUOTE
My only desire is to give power to the Federal Parliament to achieve a scheme for old-age pensions if it be
practicable, and if the people require it. No power would be taken away from the states. The sub-section
would not interfere with the right of any state to act in the meantime until the Federal Parliament took
the matter in hand.
END QUOTE
.
15
20
25

QUOTE
The Hon. R.E. O'CONNOR (New South Wales)[3.18]: The moment the commonwealth exercises the
power, the states must retire from that field of legislation.
END QUOTE
.

QUOTE Mr. REID:
We must make it clear that the moment the Federal Parliament legislates on one of those points
enumerated in clause 52, that instant the whole State law on the subject is dead. There cannot be two
laws, one Federal and one State, on the same subject. But that I merely mention as almost a verbal
criticism, because there is no doubt, whatever that the intention of the framers was not to propose any
complication of the kind.
END QUOTE
.
30
35

QUOTE
The Hon. R.E. O'CONNOR (New South Wales)[3.18]: We ought to be careful not to load the
commonwealth with any more duties than are absolutely necessary. Although it is quite true that this
power is permissive, you will always find that if once power is given to the commonwealth to legislate
on a particular question, there will be continual pressure brought to bear on the commonwealth to
exercise that power. The moment the commonwealth exercises the power, the states must retire from
that field of legislation.
END QUOTE
.
40
45
50
55

QUOTE
Mr. OCONNOR.-Directly it is exercised it becomes an exclusive power, and there is no doubt that it will
be exercised.
END QUOTE
.
The latter quotation makes it very clear that the moment the commonwealth commences to
legislate upon a certain subject within s51 then it no longer is a concurrent legislative power but
becomes an exclusive (for the Commonwealth) legislative power. Hence, other than as to
taxation issues where the Commonwealth has not exercise taxation in certain areas all other
subject within s51 of the constitution are and remain to be indefinitely exclusive Commonwealth
powers.
I will not go into details of numerous other cases but safe to say that for example Victorian laws
regarding speed cameras usage are unconstitutional where those speed cameras were not
verified by the Commonwealth of Australia.
QUOTE
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19
Mr. GORDON.-There will be more than one sentry. In the case of a federal law, every member
of a state Parliament will be a sentry, and, every constituent of a state Parliament will be a
sentry. As regards a law passed by a state, every man in the Federal Parliament will be a
sentry, and the whole constituency behind the Federal Parliament will be a sentry.
10
END QUOTE
We have for example professional truck drivers who are booked for speeding by equipment that
is not constitutionally valid and some lo\se their earning abilities, lose their family and even end
up committing suicide and this all while politicians in the Parliament are more interested for
themselves to have this government sponsored terrorism continue then to stand up and be a real
sentry.
.
15
20
I on 19 July 2006 comprehensively defeated the Commonwealth of Australia in the County

Court of Victoria in both cases on compulsory voting aster a 5 year epic legal battle. As such, I
proved in court matters and may state that despite about 50 submissions by me on numerous
constitutional issues not a single Attorney-General challenged my submissions!
Details were published in CHAPTER 03 NOT VOTING IN BANANA REPUBLIC of my
book:
INSPECTOR-RIKATI & What is the -Australian way of life- really?
A book on CD on Australians political, religious & other rights
ISBN 0-9751760-2-1 (prior to 1-1-2007) ISBN 978-0-9751760-2-3
One of those issues I raced was the Racial Discrimination Act being unconstitutional. I am aware
of the decision of KOOWARTA V_ BJELKE-PETERSEN (1982) 153 CLR 168
25
ADDRESS TO THE COURT, Part 3
County Court of Victoria, Case numbers T01567737 & Q10897630
QUOTE
30
FOREIGN AFFAIRS- EXTERNAL AFFAIRS-TREATIES

KOOWARTA V. BJELKE-PETERSEN (1982) 153 CLR 168
35
COURT
High Court of Australia
Gibbs C.J.(1), Stephen(2), Mason(3), Murphy(4), Aickin(5), Wilson(6)
and Brennan(7) JJ.
41. In Koowarta v. Bjelke-Petersen, I would allow the demurrer. (at p207)
40
42. In Queensland v. The Commonwealth, I would declare that ss. 9 and 12 of

the Racial Discrimination Act 1975 (Cth), as amended, in so far as those
sections apply within the State of Queensland, are outside the powers of the
Parliament of the Commonwealth and are invalid. (at p207)
45
In my view, for what it is worth, Gibbs CJ was correct, that the external affairs powers
couldnt extend the powers provided for in Section 51 of the Constitution. Indeed, the
framers made clear that without referendum the commonwealth couldnt give itself more
legislative powers!
The case KOOWARTA V. BJELKE-PETERSEN (1982) 153 CLR 168 was however
decided against Gibbs CJ.
Indicating that the judges really didnt bother to read the Debates as otherwise they would
have been aware that the framers strictly curtailed Commonwealth legislative powers to be
only varied by way of Section128!
50
END QUOTE
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We have to consider the following also:
5
10
Hansard2-3-1898 Constitution Convention Debates;

QUOTE Dr. QUICK.The Constitution empowers the Federal Parliament to deal with certain external affairs, among which
would probably be the right to negotiate for commercial treaties with foreign countries, in the same way as
Canada has negotiated for such treaties. These treaties could only confer rights and privileges upon the
citizens of the Commonwealth, because the Federal Government, in the exercise of its power, [start
page 1753] could only act for and on behalf of its citizens.
END QUOTE
QUOTE
15
Mr. BARTON.-It has been suggested that this sub-section is embraced in the preceding one-"External
affairs and treaties." That is arguable; it is quite possible that it may be true; but there are a very large
number of people who look forward with interest to the Commonwealth undertaking, as far as it can as part
of the British Empire, the regulation of the Pacific Islands. It may be, I think, as there is a doubt as to
whether the one thing is included in the other, and as there are a large number of people who are interested in
this question, that it is better in deference to their views to leave the words as they are. As the subsection may
do some good, and can do no harm, I think that the objection should not be pressed.
20
END QUOTE
25
Again it was stated The Constitution empowers the Federal Parliament to deal with certain
external affairs and proper reading of the debates was that this related to existing legislative
powers the Commonwealth was provided with in s51 and s52 of the constitution and not
otherwise.
30
One cannot have that one section prohibits race legislation against the general community and
that somehow then external affairs were to be to allow race legislation against the general
community.
.
35
40
45

QUOTE
Mr. WISE.-If the Federal Parliament chose to legislate upon, say, the education question-and the
Constitution gives it no power to legislate in regard to that question-the Ministers for the time being in each
state might say-"We are favorable to this law, because we shall get 100,000 a year, or so much a year, from
the Federal Government as a subsidy for our schools," and thus they might wink at a violation of the
Constitution, while no one could complain. If this is to be allowed, why should we have these elaborate
provisions for the amendment of the Constitution? Why should we not say that the Constitution may be
amended in any way that the Ministries of the several colonies may unanimously agree? Why have this
provision for a referendum? Why consult the people at all? Why not leave this matter to the Ministers
of the day? But the proposal has a more serious aspect, and for that reason only I will ask permission to
occupy a few minutes in discussing it.
END QUOTE
And also consider:

.
50
QUOTE Sir EDWARD BRADDON.-
55
When we consider how vast the importance is that every word of the Constitution should be correct,
that every clause should fit into every other clause; when we consider the great amount of time, trouble,
and expense it would take to make any alteration, and that, if we have not made our intentions clear,
we shall undoubtedly have laid the foundation of lawsuits of a most extensive nature, which will harass
the people of United Australia and create dissatisfaction with our work, it must be evident that too
much care has not been exercised.
END QUOTE
.
p20
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21
QUOTE
10
15
Mr. OCONNOR (New South Wales).-The honorable and learned member (Mr. Isaacs) is I think correct
in the history of this clause that he has given, and this is [start page 672] one of those instances which should
make us very careful of following too slavishly the provisions of the United States Constitution, or any other
Constitution. No doubt in putting together the draft of this Bill, those who were responsible for doing so used
the material they found in every Constitution before it, and probably they felt that they would be incurring a
great deal of responsibility in leaving out provisions which might be in the least degree applicable. But it is
for us to consider, looking at the history and reasons for these provisions in the Constitution of the United
States, whether they are in any way applicable; and I quite agree with my honorable and learned friend (Mr.
Carruthers) that we should be very careful of every word that we put in this Constitution, and that we should
have no word in it which we do not see some reason for. Because there can be no question that in time to
come, when this Constitution has to be interpreted, every word will be weighed and an interpretation given to
it; and by the use now of what I may describe as idle words which we have no use for, we may be giving a
direction to the Constitution which none of us now contemplate. Therefore, it is incumbent upon us to see that
there is some reason for every clause and every word that goes into this Constitution.
END QUOTE
.

QUOTE Mr. BARTON.
20
25
If we are going to give the Federal Parliament power to legislate as it pleases with regard to
Commonwealth citizenship, not having defined it, we may be enabling the Parliament to pass legislation
that would really defeat all the principles inserted elsewhere in the Constitution, and, in fact, to play ducks
and drakes with it. That is not what is meant by the term "Trust the Federal Parliament."
END QUOTE
From the above it must be clear that the Commonwealth cannot get though some backdoor
manner any additional legislative powers such as by way of using external affairs powers.
.
30
35
Hansard 2-3-1898 Constitution Convention Debates;

QUOTE Dr. QUICK.The Constitution empowers the Federal Parliament to deal with certain external affairs, among which
would probably be the right to negotiate for commercial treaties with foreign countries, in the same way as
Canada has negotiated for such treaties. These treaties could only confer rights and privileges upon the
citizens of the Commonwealth, because the Federal Government, in the exercise of its power, [start
page 1753] could only act for and on behalf of its citizens.
END QUOTE
.

QUOTE Mr. THYNNE:
40
I shall quote from Mr. Dicey's recent work, which is very clear in its language. He says:
One of the characteristics of a federation is that the law of the constitution must be either legally
immutable or else capable of being changed only by some authority above and beyond the ordinary
legislative bodies, whether federal or state legislatures, existing under the constitution.
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55
END QUOTE
.

QUOTE Mr. THYNNE:
The constitution of this federation will not be charged with the duty of resisting privileged classes, for
the whole power will be vested in the people themselves. They are the complete legislative power of the
whole of these colonies, and they shall be so. From [start page 106] them will rise, first of all, the federal
constitution which we are proposing to establish, and in the next place will come the legislative powers of the
several colonies. The people will be the authority above and beyond the separate legislatures, and the
royal prerogative exercised, in their interest and for their benefit, by the advice of their ministers will be
practically vested in them. They will exercise the sovereignty of the states, they will be charged with the
full power and dignity of the state, and it is from them that we must seek the giving to each of those bodies
that will be in existence concurrently the necessary powers for their proper management and existence. Each
assembly, each legislature, whether state or federal existing under this constitution, will be as Dicey
again says-a merely subordinate law-making body whose laws will be valid, whilst within the authority
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conferred upon it by the constitution, but invalid and unconstitutional if they go beyond the limits of
such authority.
END QUOTE
10
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25
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QUOTE Mr. BARTON.Providing, as this Constitution does, for a free people to elect a free Parliament-giving that people
through their Parliament the power of the purse-laying at their mercy from day to day the existence of
any Ministry which dares by corruption, or drifts through ignorance into, the commission of any act
which is unfavorable to the people having this security, it must in its very essence be a free
Constitution. Whatever any one may say to the contrary that is secured in the very way in which the
freedom of the British Constitution is secured. It is secured by vesting in the people, through their
representatives, the power of the purse, and I venture [start page 2477] to say there is no other way of
securing absolute freedom to a people than that, unless you make a different kind of Executive than
that which we contemplate, and then overload your Constitution with legislative provisions to protect
the citizen from interference. Under this Constitution he is saved from every kind of interference.
Under this Constitution he has his voice not only in the, daily government of the country, but in the
daily determination of the question of whom is the Government to consist. There is the guarantee of
freedom in this Constitution. There is the guarantee which none of us have sought to remove, but every
one has sought to strengthen. How we or our work can be accused of not providing for the popular
liberty is something which I hope the critics will now venture to explain, and I think I have made their
work difficult for them. Having provided in that way for a free Constitution, we have provided for an
therefore, it can only act as the agents of the people. We have provided for a Judiciary, which will
determine questions arising under this Constitution, and with all other questions which should be dealt
with by a Federal Judiciary and it will also be a High Court of Appeal for all courts in the states that
choose to resort to it. In doing these things, have we not provided, first, that our Constitution shall be free:
next, that its government shall be by the will of the people, which is the just result of their freedom: thirdly,
that the Constitution shall not, nor shall any of its provisions, be twisted or perverted, inasmuch as a
court appointed by their own Executive, but acting independently, is to decide what is a perversion of its
provisions? We can have every faith in the constitution of that tribunal. It is appointed as the arbiter of the
Constitution. It is appointed not to be above the Constitution, for no citizen is above it, but under it; but
it is appointed for the purpose of saying that those who are the instruments of the Constitution-the
Government and the Parliament of the day-shall not become the masters of those whom, as to the
Constitution, they are bound to serve. What I mean is this: That if you, after making a Constitution of
this kind, enable any Government or any Parliament to twist or infringe its provisions, then by slow
degrees you may have that Constitution-if not altered in terms-so whittled away in operation that the
guarantees of freedom which it gives your people will not be maintained; and so, in the highest sense,
the court you are creating here, which is to be the final interpreter of that Constitution, will be such a
tribunal as will preserve the popular liberty in all these regards, and will prevent, under any pretext of
constitutional action, the Commonwealth from dominating the states, or the states from usurping the
sphere of the Commonwealth. Having provided for all these things, I think this Convention has done
well.
END QUOTE
There is a lot more to this as State constitutions cannot be valid unless they were approved by
State referendums since federation!
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60

QUOTE
Dr. COCKBURN: All our experience hitherto has been under the condition of parliamentary
sovereignty. Parliament has been the supreme body. But when we embark on federation we throw
parliamentary sovereignty overboard. Parliament is no longer supreme. Our parliaments at present are
not only legislative, but constituent bodies. They have not only the power of legislation, but the power
of amending their constitutions. That must disappear at once on the abolition of parliamentary
sovereignty. No parliament under a federation can be a constituent body; it will cease to have the
power of changing its constitution at its own will. Again, instead of parliament being supreme, the
parliaments of a federation are coordinate bodies-the main power is split up, instead of being vested in
one body. More than all that, there is this difference: When parliamentary sovereignty is dispensed
with, instead of there being a high court of parliament, you bring into existence a powerful judiciary
which towers above all powers, legislative and executive, and which is the sole arbiter and interpreter
of the constitution.
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END QUOTE
10
Safe to say the State Parliament lack any legislative powers as to race laws (other than within s25
of the constitution) and the Commonwealth Racial Discrimination Act is unconstitutional. For
what it is worth s51(xxvi) was created to legislated to discriminate against a particular race and
cannot have an opposite meaning for Aboriginals and Torres Strait Islanders!
While personally I oppose racial discrimination, as a CONSTITUTIONALIST however I must
reflect what the Framers of the Constitution embedded as a legal principle.
15
There therefore can be absolutely no doubt that within the context of the constitution
neither the states or the Commonwealth can prohibit racial discrimination, and any laws
purporting to do so are unconstitutional and as such ULTRA VIRES. And it is not the High
Court of Australia which invented in the 1989 Albert Lange case that freedom of political
communication exist or is implied in the constitution but that the Framers of the Constitution
embedded this with its above quoted statement of this Bill-of political liberty and religious liberty.
20
This is why we need the OFFICE-OF-THE-GUARDIAN (Dont forget the hyphens!), a

council that advises the Parliament, the People, the government and the Courts as to the true
meaning and application of the constitution and so that ordinary citizens can freely move about
without undue legislation hampering their rights and freedoms.
.
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35
END QUOTE
QUOTE Mr. HIGGINS:
END QUOTE
This document is not intended and neither must be perceived to refer to all details/issues.
MAY JUSTICE ALWAYS PREVAIL

Our name is our motto!
(
)
Awaiting your response, G. H. Schorel-Hlavka O. W. B. (Friends call me Gerrit)
40
END QUOTE 20150113-G. H. Schorel-Hlavka O.W.B. to Senator Cory Bernardi - Re 18c etc
QUOTE 100831-Premier Kristina Keneally-Re STATE LAND TAX - etc
45
Premier Kristina Keneally

<thepremier@www.nsw.gov.au>
31-8-2010
Cc: * Mr John Brumby, Premier, john.brumby@parliament.vic.gov.au

* Mr Robert Pincevic
.
50
Re: State Land tax - etc
55

Kristina,
I has been more then 4 weeks since I last wrote to you regarding State land taxes being
unconstitutional since the Commonwealth of Australia commenced to legislate in regard of
LAND TAX and the High Court of Australia underlined this in its judgment.
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As I stated in my previous 31 August 2010 correspondence to you; http://www.austlii.edu.au/cgibin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=%22thi+act+and+all+law+made+by+the+parliament%22#fn50
QUOTE
The starting point for a principled interpretation of the Constitution is the search for the
intention of its makers[51].
END QUOTE
.
10
Within Section 51 of the constitution both the States and the Commonwealth have certain
legislative powers however as the Framers of the Constitution stated:
QUOTE Mr. REID
The object is this, that for some time to come it will not be possible for the Federal
Legislature to pass laws on these subjects, and it is necessary to have some laws on themthe state laws if they exist-until federal laws are enacted; but the moment a federal law is
passed on any one of these subjects, under the provision under the head of "States" the
federal law prevails over the state law.
15
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END QUOTE
.

QUOTE
The Hon. R.E. O'CONNOR (New South Wales)[3.18]: The moment the commonwealth exercises the
power, the states must retire from that field of legislation.
END QUOTE
.
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50

QUOTE Mr. REID:
END QUOTE
.

QUOTE
END QUOTE
.

QUOTE
be exercised.
END QUOTE
For constitutional purposes it isnt relevant that the Commonwealth of Australia aborted any land
taxes since 1952 by abolishing the legislation as it still was and remained to be an exclusive
federal legislative power
.
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60
I thank your office for having provided me with a 13 September 2010 response:
QUOTE
CMU10-16940
13 September 2010
Mr Gerrit Schorel-Hlavka
schorel-hlavka@schorel-hlavka.com
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25
10
Dear Mr Schorel-Hlavka
I write in response to your recent email to the Premier concerning land tax.
As the matter you have raised concerns the administration of the Treasurer, the Hon
Eric Roozendaal MLC, your email has been forwarded to the Treasurer for attention.
You may be sure that your letter will receive close consideration.
Yours sincerely
David Swain
for Director General
END QUOTE
.
As I stated in my previous correspondence also:

QUOTE
As a CONSTITUTIONALIST and Author of books in the INSPECTOR-RIKATI series on certain

constitutional and other legal issues my issue is foremost what is constitutionally appropriate and for this
direct myself to you.
15
I do point out that I am not in any capacity acting for Mr Robert Pincevic but he is aware that I am writing to
you and reveals his identity.
20
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30
I was contacted by Mr Robert Pincevic (NSW resident) regarding the 22 June 2010 Land Tax issue
correspondence from Richard Brown for Tony Newbury Chief Commissioner of State Revenue correctly
pointed out that within s.106 of the constitution (The Commonwealth of Australia Constitution Act 1900
(UK)), the States subject to this constitution are entitled to legislate in matters. I personally cannot see any
difficulties then with any NSW legal provisions then to legislate in 1902 (provided the NSW constitution was
validly amended) in regard of land taxes, however what Richard Brown seems to ignore is the very term
subject to this constitution meaning that s.51 only permits the States to legislate as to Land Tax until the
Commonwealth legislate for this and then the moment the Commonwealth does it no longer is a legislative
power for the States. As such where the Commonwealth commenced to legislate and in 1910 became the
dominant legislator I have the view that then the States no longer had this legislative power and the fact that
the Commonwealth in 1952 abolished land taxes cannot revert the legislative powers back to the States as the
constitution doesnt allow for this.
END QUOTE
.
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I am well aware that the Governments (State/Territorial/Federal) may seek to rely upon legal
advice of lawyers who may or may not claim to be constitutionalist but the fact is that since 1956
none of them appeared to have understood that the States/Territories couldnt legislate as to
LAND TAXES. This is because lawyers are so to say trained to think in a certain manner and
this prohibit them to be open minded and consider all relevant issues, not just about
State/Territorial land Taxes as for example the commonwealth in s.388 of the CEA1918 uses
averment where as on 4 August 2005 I successfully defeated the commonwealth and the Court
ordered the commonwealth to file and serve all evidence it sought to rely upon this as the court
upheld my constitutional submission that the commonwealth cannot interfere in the legal
processes of a State Court by dictating that AVERMENT applies. Actually the ATO uses
averment in the Supreme Court of NSW even so as I stated this is unconstitutionally
interfering in State judicial matters, regardless if the State Court exercises federal jurisdiction.
.
It is my understanding that the ATO in legal proceedings relies upon the Taxation
Administration Act section 8ZL which is as follows:
50
QUOTE S.8ZL(1)
[Prima facie evidence] In a prosecution for the prescribed taxation offence, a statement or averment
contained in the information, claim or complaint is prima facie evidence of the matter so stated or averred.
END QUOTE
.
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QUOTE S.8ZL(2)
[Application of section] This section applies in relation to any matter so stated or averred although:
(a) evidence in support or rebuttal of the matter stated or averred, or of any other matter, is given; or
(b) the matter averred is a mixed question of law and fact, but in that case, or of any other statement or
averment is prima facie evidence if the fact only.
END QUOTE
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.
We now look brat the provision of the CEA1918;

5
Commonwealth Electoral Act 1918

QUOTE
388 Averments deemed to
be proved
In any prosecution in a court of summary jurisdiction in respect of a contravention of the

provisions of this Act or the regulations relating to compulsory enrolment or compulsory
voting, instituted by an officer or by any person acting under the direction of an officer, the
averments of the prosecutor contained in the information or complaint shall be deemed to be
proved in the absence of evidence to the contrary.
10
END QUOTE
.
I understand that Raelene Susan Vivian Deputy Commissioner of Taxation filed a 1 May 2009
Affidavit (On 4 May 2009) in which she refers to:
15
QUOTE
The plaintiff pleads her cause of action, and avers and states
END QUOTE
.
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These pleadings were then responded upon by the Respondents to in general deny the claims.
In point 4 of this Affidavit it was stated
QUOTE
The defendants failed to pay income tax for the years of tax ending 30 June 2002, 30 June 2003, 30 June
2004, 30 June 2006, 30 June 2007 and 30 June 2008 on or before the relevant due dates.
END QUOTE
.
It is in my view terrible that even the Supreme Court of NSW isnt even aware that
Commonwealth of Australia legislative provisions cannot interfere with State jurisdictional
matters!
QUOTE
Mr. CLARK: What we want is a separate federal judiciary, allowing the state judiciaries to remain
under their own governments.
END QUOTE
.
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QUOTE Mr. SYMON.Then, I think myself, some confusion may arise in consequence of the reference to the state in the words
"Proceedings to be taken against the Commonwealth or a state in all cases within the limits of the judicial
power." Now, it does not appear to me that we ought to interfere in any way with the functions of a state
to regulate the proceedings which it, as a quasi-independent political entity, may prescribe for the
regulation of its own legal proceedings.
END QUOTE
.
45
As a CONSTITUTIONALIST I obviously have to consider the intentions of the Framers of the

Constitution where the ATO is about Income Tax of all sources, the same can be argued about
the issue of the word INCOME:
QUOTE
Sir GEORGE TURNER: One might depend entirely on the other.
50
Mr. BARTON: That would not be a case of two separable propositions.

Sir GEORGE TURNER: Take the Land and Income Tax Bill.
55
Mr. BARTON: They are proposals which should never be in one Bill together. If there are two
propositions more dissimilar in their incidence than a land and an income tax they are hard to suggest.
One of them-the income tax-comes from the earnings or profits of the people, or of that portion of the
people who, I was almost guilty of saying, are to "hump the swag"-at any rate they are to bear the
burden. But the other-if a tax on the unimproved value of land-has no relation to the earnings or the
thrift or the solvency of the person owning the land, and taxes that land on its unimproved value
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whether the owner makes a profit out of it or not. I am not attacking these forms of taxation, but I do
say this: that it is impossible to imagine two taxes more diverse their very root, and I think Sir George
Turner could not have selected a better example of two taxes which ought not to be included in one Bill.
I venture to say this is undoubtedly cutting down the right of the Senate to protect the State, and preventing
them from voting upon matters that should be put separately. I believe most of these matters have been well,
and fairly dealt with in the Bill of 1891.
END QUOTE
.
10
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20
25
If therefore profits of land holdings is not an income and cannot be put in the one Bill then what
is the Tax Assessment Act 1936 about, so the unconstitutional State land tax assessments?
It should be noted;
QUOTE Mr. ISAACS (Victoria).The words "trade and intercourse" are almost unbounded in their meaning when you apply them to the
relations of trade and commerce, and, under the proper heads, Baker's Annotated Constitution is full of
instances showing how far-reaching these words are. Then, take the words "throughout the Commonwealth."
The meaning of those words is not restricted to between the states; they refer to every part of the
Commonwealth, and I would refer honorable members to earlier portions of the Bill where the same meaning
will have to be given to them. If honorable members will turn to clause 52, which deals with the powers of the
Parliament, they will find that in sub-section (2) the Federal Parliament is empowered to legislate in regard to
customs, excise, and bounties, which shall be uniform "throughout the Commonwealth." That is, within every
state and every part of a state. "Throughout the Commonwealth" is the largest expression that can be used. In
the next sub-section it is provided that all taxation shall be uniform throughout the Commonwealth. An
income tax or a property tax raised under any federal law must be uniform "throughout the
Commonwealth." That is, in every part of the Commonwealth.
END QUOTE
.
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50
55
And while on this and any attempts by the states/Territories and/or even the Commonwealth to
legislate retrospectively the following ought to be noted:
.

QUOTE
Mr. BARTON: I will look into these matters. Notwithstanding the able draughtsmanship of the 1891 Bill,
there are several clauses not quite in their right place in it, and it would be well to alter their order. The
Drafting Committee will look into that matter, and at the end of the proceedings will ask hon. members to
give their attention to such alterations as they may suggest. It will be better to transpose some of the clauses.
With reference to Sir Edward Braddon's amendment, which is put in a better form than that suggested
by Mr. Symon, I do not think there is any actual necessity for it. I find in Maxwell on "Interpretation of
Statutes," 1st edition, page 192, this passage:
It is where the enactment would prejudicially affect vested rights, or the legal character of past Acts,
that the presumption against a retrospective operation is strongest. Every Statute which takes away or
impairs vested rights acquired under existing laws, or create a new obligation, or imposes a new duty,
or attaches a new disability in respect of transactions or considerations already past, must be
presumed, out of respect to the Legislature, to be intended not to have a retrospective operation. Thus
the provision of the Statute of Frauds, that no action should be brought to charge any person on any
agreement made in consideration of marriage, unless the agreement were in writing, was held not to
apply to an agreement which had been made before the Act was passed. The Mortmain Act, in the
same way, was held not to apply to a devise made before it was enacted. So it was held that the Act of 8
& 9 Vict., c. 106, which made all wagers void, and enacted that no action should be brought or
maintained for a wager, applied only to wagers made after the Act was passed.
Sir GEORGE TURNER: There is no doubt about those cases, I should say.
Mr. BARTON: In subsequent editions these examples are multiplied. The principle underlying the
matter is this: that a court in construing an Act assumes that Parliament never intended to do a thing
which is unjust. I am quite sure that Mr. Symon will agree that the provision is not necessary.
Mr. SYMON: Hear, hear.
END QUOTE
.
60

QUOTE
Mr. HOLDER.-I have two interjections to answer. I will deal first with that of the Attorney-General of
Victoria. In reply to his statement that this makes the law altogether retrospective, I simply say that the
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proposal is to make the law retrospective in this sense: That during the interval throughout which it was,
according to the judgment of the court, ultra vires, the decision of the people afterwards could make it intra
vires.
Mr. ISAACS.-That might make persons criminals who were not otherwise criminals. It might not
have been an offence to do a certain thing if the High Court declared the law to be ultra vires, but if that
law was made intra vires from an antecedent date, all the persons who did that thing might be subject
to punishment.
END QUOTE
.
10
15

QUOTE Mr. ISAACS.Unless the honorable member is willing to amend his clause in that respect, we should only complicate
matters, and if retrospective operation were given to it we should be lending ourselves to what would be,
quite unintentionally on the part of the honorable member, a gross injustice.
END QUOTE
.

QUOTE
Mr. ISAACS.-But they have already passed a law, and I take it that if you can get an absolute majority of
both Houses directing the referendum, there is no practical difference between that and an absolute majority
again passing the law. Because they virtually passed the law as far as they could. Therefore, it seems to me
there is no advantage gained from the stand-point of desiring a better means of getting an amendment of the
Constitution. Then, I feet that it is open to the destructive criticism that it makes the law retrospective, and
after the court, possibly the Privy Council, has decided that the law is ultra vires, and people have acted on
that decision, being compelled to, act on that decision, or being compelled to refrain from acting on the
decision of the court, as the law is positive or negative; then we should have under this referendum a law
made operative as from the time of its original passing, and penalties, both personal and pecuniary, might be
incurred through no fault of the individuals who had incurred them. That seems to me to be a defect to which
we cannot close our eyes.
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Mr. WISE.-Besides, it would punish everybody who took the advice of a man who interpreted the law
properly.
Mr. ISAACS.-It compels everybody who has obeyed the decision of the higher courts to act, or refrain
from acting. That is a position which none of us would willingly get into, and the retrospective action is
wrong.
END QUOTE
.
40
I am concerned that despite my writing of 31 August 2010 I am given the understanding that the
State of NSW State land Tax office nevertheless has persisted in proceedings with its conduct
against the Pincevics even so it was also provided by Mr Robert Pincevic with a copy of my 31
August 2010 correspondence to you and the response of 13 September 2010 on your behalf.
.
45
50
55
I am well aware that State/Territorial land taxes involves an estimate $35 billion a year
throughout the Commonwealth of Australia but in all fairness I have urged for many years for all
Governments to consult the OFFICE-OF-THE-GUARDIAN about constitutional matters and
where then a State/Territory failed to do so then it has inflicted any harm upon not just itself but
also to its residents. It cannot be any excuse therefore for any State/Territorial Government
having to refund all unconstitutional claimed LAND TAXES as the Framers of the Constitution
made clear that any unconstitutional taxes had to be refunded.
Neither can it be held that somehow the States/Territories were colleting LAND TAXES on
behalf of the Commonwealth because the Commonwealth is bound to raise any taxes for the
whole of the Commonwealth. As the States/Territories collected LAND TAXES in dependent
of each other and as such no LAND TAX was equal throughout the Commonwealth of Australia
then it cannot be deemed that the States/Territories therefore purportedly collected LAND
TAXES on behalf of the Commonwealth.
.
Neither can the Commonwealth apply retrospective legislation as to try to secure past land
taxes paid since 1952 as being Commonwealth land taxes.
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.
10
Neither can the States/Territories invoke any kind of retrospective legislation because the states
are within s.106 subject to this constitution and hence the legal principles embedded in the
constitution are also binding upon the States/Territories.
.

QUOTE Mr. OCONNOR (New South Wales).Of course, when I speak of a state, I include also any territory occupying the position of quasi-state,
which, of course, stands in exactly the same position.
END QUOTE
.
15
20
25

QUOTE
Mr. ISAACS (Victoria).-What I am going to say may be a little out of order, but I would like to draw the
Drafting Committee's attention to the fact that in clause 52, sub-section (2), there has been [start page 1856] a
considerable change. Two matters in that sub-section seem to me to deserve attention. First, it is provided
that all taxation shall be uniform throughout the Commonwealth. That means direct as well as indirect
taxation, and the object I apprehend is that there shall be no discrimination between the states; that an
income tax or land tax shall not be made higher in one state than in another. I should like the Drafting
Committee to consider whether saying the tax shall be uniform would not prevent a graduated tax of any
kind? A tax is said to be uniform that falls with the same weight on the same class of property, wherever it is
found. It affects all kinds of direct taxation. I am extremely afraid, that if we are not very careful, we shall get
into a difficulty. It might not touch the question of exemption; but any direct tax sought to be imposed
might be held to be unconstitutional, or, in other words, illegal, if it were not absolutely uniform.
END QUOTE
.
30
Where the State land tax office is assessing Mr Robert Pincevic as to his INCOME then again
as like Commissioner of Taxation (ATO for the commonwealth) any income must be
understood as to the meaning of the Framers of the Constitution and not that income is what is
derived from direct and indirect taxable financial benefits, as this offend the Constitution that
only one subject matter can be addressed in any taxation legislation!
As such the States also fall foul upon how it assesses the unconstitutional State LAND TAXES
being on INCOME derived from different sources.
.
35
40
45
50
As you may be aware there are thousands of ratepayers in clashes with municipal and shire
councils as to the paying of rates, and this too is a matter then may soon so to say blow up in the
face of State and Territorial governments, as I have published articles about this in the past. It is
therefore essential that the State government reconsiders how it goes about and in particular how
it pursues objectors who in the end all along may be proven to be right in certain issues but
because the State/Territorial government rely upon legal advisors who may know next to nothing
about what is constitutionally applicable then the State government, other then to provide so to
say a gold mine for the lawyers to keep them in a job it doesnt at all act appropriately for the
general public. Instead of having if not thousands then hundreds of court cases about rates, etc, I
view it would be far more sensible if the State/Territorial governments were to reconsider its
positions and perhaps call an inquiry to assess what is actually constitutionally appropriate. I
will not delve into all the finer details in this correspondence about it but can assure you that you
might be in the end horrified citizens have been unduly so to say crucified in courts where they
all along had a rightful position in regard of certain objections but even the judiciary was blind to
it because after all they were all trained in the same manner and so not open-minded to what is
constitutionally applicable and justified.
.
55
QUOTE R. v Sussex Justices, ex parte McCarthy (1924)

'Justice should not only be done, but should manifestly and undoubtedly be seen to be done.'
END QUOTE
.
TAYLOR v. TAYLOR [1979] HCA 38; (1979) 143 CLR 1 (22 August 1979)
p29
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Similarly in Commissioner of Police v. Tanos (1958) 98 CLR 383, at p 395, Dixon C.J. and
Webb J. said that
5
QUOTE
it is a deep-rooted principle of the law that before anyone can be punished or prejudiced in his person or
property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of
being heard.
END QUOTE
.
10
Hansard 31-1-1898 Constitution Convention Debates QUOTE Mr. SOLOMON.We shall not only look to the Federal Judiciary for the protection of our interests, but also for the just
interpretation of the Constitution:
END QUOTE
.
15

QUOTE Mr. SOLOMON.Most of us, when we were candidates for election to the Federal Convention, placed great stress upon it
as affording a means of bringing justice within easy reach of the poor man.
END QUOTE
.
20
25

QUOTE Mr. OCONNER (New South Wales).Because, as has been said before, it is [start page 357] necessary not only that the administration of
justice should be pure and above suspicion, but that it should be beyond the possibility of suspicion;
END QUOTE
.
The following will also make clear that the Framers of the Constitution intended to have CIVIL
RIGHTS and LIBERTIES principles embedded in the Constitution;
30

QUOTE Mr. CLARK.for the protection of certain fundamental rights and liberties which every individual citizen is entitled to
claim that the federal government shall take under its protection and secure to him.
END QUOTE
.
35
END QUOTE
.
40
45
50
55
What we now have is a considerable disaster where ordinary people were dragged through the
courts, perhaps had their property garnished to pay alleged unpaid land taxes where in the end
the State government could have avoided all this rot to some extend if it had years ago consulted
the OFFICE-OF-THE-GUARDIAN as to constitutional matters. Innocent people in the process
had their lively and perhaps also their lives destroyed and all because State/Territorial
governments failed to appropriately consider constitutional matters, and lawyers involved simply
look at matters from their point of view rather from a constitutional point of view what is just and
proper.
As an example; there was the recent Victorian Colosimo case where I (as a professional
advocate, Attorney and CONSTITUTIONALIST) took over from the lawyer and despite more
then 20 opponent lawyers being involved in the case proved to the trial judge that Mr Colosimo
actually all along had not at all been in breach of law, even so he was by then was on his 6th
contempt hearing. As a matter of fact, the prosecutor had instituted the legal proceedings
incorrectly as the proceedings, by legislative provisions, only could be instituted in a magistrates
court, something all those lawyers never realised over all the years of their litigation against Mr
Colosimo. Also, I got rid of the Administration orders over Mr Colosimo showing that the expert
witnesses simply didnt know what they were talking about because their (medical) assessments
all had been based upon Mr Colosimo being convicted of contempt, where as in fact I proved he
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31
had not been even formally charged with contempt let alone convicted. As such, what we saw
was with all those lawyers involved, including the Office of the Public Advocate, Victorian
Legal Aid none of the lawyers could comprehend you first needed a formally charge a person
before you can hold all those contempt hearings let alone tell a defendant he could be imprisoned
for up to 5 years! His case also related to taxes, FEE SIMPLE, etc. Despite that a County court
judge Her Honour Harbison was presiding over matters she was acting as a Deputy President of
VCAT (Victorian civil and Administrative Tribunal) and by this in conflict of her legal duties as
an IMPARTIAL judicial officer of the County Court of Victoria also serving a master being a
State government as a judge but then with the obligation to act in accordance with the
governments policy as previously VCAT member Helen Gibson made clear to Mr Colosimo.
.

QUOTE
Mr. O'CONNOR: You cannot ask a judge to serve two masters.
15
20
END QUOTE
In my view no judicial officer can be a judge of a Court of law and also be a judge on a Tribunal
as the Framers of the constitution referred to a retired judge to be dealing with a tribunal.
Likewise so with a Court of disputed Returns as judges acting on a tribunal are causing confusion
to the general community who belief to be appearing before a judge in his impartial position as a
judge of a court of law but actually ending up being before a judge of a Tribunal how is acting in
the capacity of persona designata
.
25

QUOTE Mr. HIGGINS:
END QUOTE
.
30
35
Yet we find that throughout the Commonwealth of Australia people are seeking to stand up for
their constitutional rights and Mr Robert Pincevic is one of many, and are rebuked for this and
severely castigated in the process as if they do not know what they are talking about where in
fact the courts themselves and the lawyers appearing before it generally havent got a clue what
they are talking about because their training during legal studies has prevented them to
understand and comprehend the true meaning and application of the (federal) constitution.
Hence, let the State of NSW commence to hold an inquiry so as to curtail all this litigation about
State, municipal and shire rates and for once and for all try to get some proper understanding by
all concerned what is really constitutionally applicable.
.
40
45
As I understand it there are various groups who so to say are sucking people of their hard earned
monies to protest against rates/taxes and then are no where to be found when a person ends up in
court with the objections and no matter how justified the objectionist might be the courts lack the
knowledge and the skill to appropriately consider constitutional matters because it will be
claimed that as there is legislation then so be it and this is precisely unconstitutional as the courts
must consider any objection to legislation as to upon constitutional basis and not merely accept
the word of the government lawyers for it.
.
50
I will not go into further details about this at this time but save to state that I am horrified as to
the numerous cases that are clogging the courts and I know very well that this got nothing to do
with JUSTICE because eventual more then likely the courts will rule against the objector, not
because the objector might be wrong but because we lack any proper system to advise the
Government, the People, the courts and the Parliament as to what is constitutionally applicable.
Hence the OFFICE-OF-THE-GUARDIAN so to say has taken up the baton to do so, not for
individual cases but to try to stop this rot and so in the interest of all concerned. In the meantime
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32
I view that all State/Territorial government should call a halt to all litigations and have them all
stayed pending matters to be appropriately considered. Obviously time is of an essence that such
inquiry/investigation is not unduly protracted as you cannot have State/Territorial governments
and/or municipal/shire councils running out of funds while at the same time you cannot persist in
litigation against any citizen who might be constitutionally be in his right!.
QUOTE
Mr. BARTON.- Of course it will be argued that this Constitution will have been made by the
Parliament of the United Kingdom. That will be true in one sense, but not true in effect, because the
provisions of this Constitution, the principles which it embodies, and the details of enactment by which
those principles are enforced, will all have been the work of Australians.
END QUOTE
.
15
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25
30

QUOTE
END QUOTE
.
EITHER WE HAVE A CONSTITUTION OR WE DONT! (As you may say; We either have
a constitution or we dont!)
MAY JUSTICE ALWAYYS PREVAIL has been operating (without government funding) as
a special lifeline service and as such I am well aware of the mental, emotional and financial
hardship caused upon so many to the extend that people contemplate to commit suicide and yet at
least I view it to be so, the State/Territorial government can resolve many of the issues by
holding a proper inquiry so that finally many misconceptions, etc, can be so to say laid to rest.
After all, every suicide cost the community also a lot of money and so why not spend the money
in a far better manner and hold an open and transparent inquiry and in the process serve the
constituents as they all along are entitled upon?
.

.

35
.
Awaiting your response,
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55
G. H. Schorel-Hlavka (Gerrit)
END QUOTE 100831-Premier Kristina Keneally-Re STATE LAND TAX - etc

QUOTE 100913-Premier NSW-Re State land Tax-acknowledgement
CMU10-16940
13 September 2010
As the matter you have raised concerns the administration of the Treasurer, the Hon Eric
Roozendaal MLC, your email has been forwarded to the Treasurer for attention.
Yours sincerely
David Swain
END QUOTE 100913-Premier NSW-Re State land Tax-acknowledgement
QUOTE 101005-Premier John Brumby-Re unconstitutional STATE LAND TAX - etc
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33
Mr John Brumby, Premier
john.brumby@parliament.vic.gov.au
5-10-2010
Cc: * Mr Ted Baillieu Leader of Her Majesty Opposition ted.baillieu@parliament.vic.gov.au

* Mr Rob Hulls rob.hulls@parliament.vic.gov.au
.
Re: State Land tax etc
John,
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35
as a CONSTITUTIONALIST and Author of books in the INSPECTOR-RIKATI

series on certain constitutional and other legal issues my concern is foremost what is
constitutionally appropriate and for this direct myself to you. As you are aware of the copy of a
31 August 2010 to Premier Kristina Keneally (NSW) correspondence that I also forwarded to
you in regard the unconstitutional State/Territorian Land Taxes and her office 13 September
2010 response being:
QUOTE
CMU10-16940
13 September 2010
Yours sincerely
David Swain
END QUOTE
I now request to respond and set out to me what you propose to do, and considering there is a
State election due if this will be addressed prior to the Election, if at all? It should be kept in
mind that the Framers of the constitution made clear that all and any unconstitutional taxation
must be refunded to those who paid it and this clearly will leave a gigantic black hole in the State
budget and this could have been addressed years ago when I recommended to you and the
Attorney General that all and any legislation will be duly checked for its constitutional validity
with the OFFICE OF THE GUARDIAN that is to assist as a council to advise the Government,
the People, the Parliament and the Courts as to the meaning and application of constitutions?
Will you take immediate action or refuse to abide by the RULE OF LAW? (constitution s.106)
.
40

.

.
45
Awaiting your response, G. H. Schorel-Hlavka (Gerrit)
END QUOTE 101005-Premier John Brumby-Re unconstitutional STATE LAND TAX - etc
50
QUOTE 110302-NSW-Land taxes
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34
ENDQUOTE 110302-NSW-Land taxes
10
15
What the NSW Government wrongly seems to assume is that but rather returned taxation
powers back to them.
As such, it is not claimed that it had existing legislation on foot but that somehow the
Commonwealth returned legislative powers to the states.
I cannot as a CONSTITUTIONALIST accept that the Commonwealth can do so because once
uniform taxation is applied it cannot be reverted to a non-uniform taxation as any law, when
abolished, would unless otherwise enacted remains to apply for the rights and benefits of the
persons so affected. In this case landholders.
Even by the above admission of the claimed return the NSW Government by this must be
deemed to concede it had no legislative powers until the abolition and so by this must be deemed
to acknowledge that all municipal/shire council rates (State delegated taxation powers) were
unconstitutional/unlawful.
QUOTE 110302-NSW-Land taxes
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35
END QUOTE 110302-NSW-Land taxes
10
This correspondence at the very least is an acknowledgement by the NSW Government that it
had at least between 1910 and 1952 no legislative powers as to land taxation and hence so neither
State delegated powers for municipal/shire councils to raise rates!
However, as a CONSTITUTIONALIST I take the position no such return of legislative
powers is feasible within constitutional context!
The correspondence also indicates that I did alert the Victorian Government about the land tax
issue and sought its response, in fact I did so on various occasions and it blatantly disregarded
any response.
It therefore cannot claim it sought to address and resolve the issue.
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QUOTE 5-7-2011 correspondence to Victorian SRO
State Revenue Office

C/o Mr Ian Low
Email: sro.vic.gov.au
5
10
15
5-7-2011
Ref Mr John Abbott Customer No. 4727794

Sir, I direct myself to you in regard of what I understand to be a gross misconception and
misunderstanding on your behalf as to how the constitution applies. I do not represent Mr John
Abbott (I am a CONSTITUTIONALIST and not a lawyer!) but merely provide this set out to
assist the parties in seeking to resolve their dispute.
I am well aware that a grave problem with legal studies is that aspiring lawyers are not properly
educated into constitutional matters and as such are pursuing enforcement of legislative
provisions unaware that it is at times unconstitutional.
Because the State Land Tax issue also is pursued such as in NSW I will below quote a recent
correspondence to the then premier of NSW Kristine Keneally, where her Minister strangely
claimed some return of powers that isnt constitutionally possible!
.

STATE REVENUE OFFICE VICTORIA
www.sro.vic.gov.au
20
Contact Name :
Telephone
Facsimile
Customer No.
Ian Low
(03) 9628 6846
(03) 9628 6856
4727794
25
2 June 2011
Mr John Abbott
1 Piccolo Street
COOMERA WATERS QLD 4209
30
Dear Mr Abbott
35
Thank you for your correspondence dated 22 February and 11 April 20ll in which you
claim a refund of Land Tax paid from 2001 lo 2009 (inclusive), based upon
constitutional grounds.
40
Under the Commonwealth Constitution the power of taxation vested in the Federal
Parliament is not exclusive except in relation to duties of customs and excise. The States
possess a concurrent and independent power of levying tax within their jurisdiction. As
under the Constitution by virtue of the previous imposition of land tax by the
Commonwealth, and your application for a refund has been refused.
Yours sincerely
45
Ian Low
Delegate of the Commissioner of State Revenue
Operating Strategy and data Improvement
50
It is important to consider that the following correspondence was part of a series of writings and
so is not intended and must not be perceived to relate to all details/issues and neither in any order
of priority and other correspondence can be obtained upon request to me for so far I elect to
prove them.
55

8-3-2011
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37
Cc: * Mr Ted Baillieu Premier ted.baillieu@parliament.vic.gov.au
* Tony Newbury Chief Commissioner of State Revenue C/o peter.geffroy@osr.nsw.gov.au
* Mr Robert Pincevic <roblp@bigpond.com>
PO Box 15 Luddenham NSW 2745
.

.
Kristina,
10
your office for having provided me with a 13 September 2010 response (in regard of my
31 August 2010 correspondence to you regarding the unconstitutional State land taxes:
15
QUOTE
CMU10-16940
13 September 2010
20
25
Yours sincerely
David Swain
END QUOTE
.
30
35
40
45
I received on 8-3-2011 a response dated 2-3-2011 from Barry Collier MP Parliamentary

Secretary Assisting the Treasurer on behalf of the Treasurer he responded.
Section 107 he refers to is very clear that for example Income Tax albeit was a Colonial and
later State legislative power the moment the Commonwealth legislated upon Income Tax then
the power became an exclusive Commonwealth power and the States had to retire from this.
Once it became an exclusive power then the constitution doesnt permit it to return to become a
concurrent power, as I have set out in past correspondence. The legislative powers on the
particular field is forever an exclusive power of the Commonwealth!
In regard of the State Land Taxes the same applies. Once the Commonwealth commenced to
legislate as to Land taxes then it became by this an exclusive legislative power and as such the
State no longer had concurrent legislative powers on Land taxes matters.
The States were created out of the former colonies and as s.106 of the (federal) constitution
makes clear subject to this constitution and this clearly provides in s51 for concurrent
legislative powers to become exclusive Commonwealth legislative powers. It is not relevant if
the Commonwealth, as like with the 1952 abolition land taxes were to abolish income tax
because it would still remain an exclusive Commonwealth legislative power. As for s5 of the
Constitution Act 1992 (NSW) it cannot override any Commonwealth exclusive powers and as it
clearly is subject to the Commonwealth constitution it therefore cannot be perceived it somehow
gives legislative powers no longer permissible by the Commonwealth Constitution to be
exercisable by a state.
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Critical might be the claim:

5
10
15
20
25
30
QUOTE
Land taxes were imposed by the States prior to federation. They were introduced at the federal level in 1910.
In 1952, the Commonwealth Government abolished land tax. This did not have the effect of preventing the
States from imposing land tax, but rather returned taxation powers back to them. Accordingly, the NSW
Government introduced the land Management Act in 1956.
END QUOTE
Obviously, contrary to what was claimed by Barry Collier MP the Commonwealth Government
has no constitutional powers to abolish any legislation as it being the Executive it can refuse to
enforce legislative provisions but cannot abolish an act of Parliament. As such it is the
Commonwealth Parliament that can only abolish legislation.
What may be noted is the wording but rather returned taxation powers back to them as
such this is a concession that in fact since 1910 land taxes were an exclusive Commonwealth
legislative power. The question then is how does one return a legislative power to any State,
not just NSW, where the Constitution never provided for this? Clearly Barry Collier MP didnt
clarifyy within what constitutional powers, if any, a reversal of legislative power could eventuate
and quite frankly the Framers of the Constitution made clear that once a legislative power was a
Commonwealth legislative power then this was the end of the States dealing with the subject.
.
QUOTE
Mr. DEAKIN.-My point is that by the requests of different colonies at different times you may arrive at a
position in which all the colonies have adopted a particular law, and it is necessary for the working of that law
that certain fees, charges, or taxation should be imposed. That law now relates to the whole of the Union,
because every state has come under it. As I read clause 52, the Federal Parliament will have no power,
until the law has thus become absolutely federal, to impose taxation to provide the necessary revenue
for carrying out that law. Another difficulty of the sub-section is the question whether, even when a
p38
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39
state has referred a matter to the federal authority, and federal legislation takes place on it, it has anyand if any, what-power of amending or repealing the law by which it referred the question? I should be
inclined to think it had no such power, but the question has been raised, and should be settled. I should
say that, having appealed to Caesar, it must be bound by the judgment of Caesar, and that it would not
be possible for it afterwards to revoke its reference.
END QUOTE
.
10
15
20

QUOTE Mr. GORDON.The court may say-"It is a good law, but as it technically infringes on
the Constitution we will have to wipe it out."
END QUOTE
.
QUOTE Mr. ISAACS (Victoria).In the next sub-section it is provided that all taxation shall be uniform throughout the Commonwealth.
An income tax or a property tax raised under any federal law must be uniform "throughout the
END QUOTE
.
QUOTE
Mr. MCMILLAN: I think the reading of the sub-section is clear.
The reductions may be on a sliding scale, but they must always be uniform.
25
30
35
40
45
50
55
60
END QUOTE
And
QUOTE
Sir GEORGE TURNER: No. In imposing uniform duties of Customs it should not be necessary for the
Federal Parliament to make them commence at a certain amount at once. We have pretty heavy duties in
Victoria, and if the uniform tariff largely reduces them at once it may do serious injury to the colony. The
Federal Parliament will have power to fix the uniform tariff, and if any reductions made are on a
sliding scale great injury will be avoided.
END QUOTE
.

QUOTE Mr. BARTON.But it is a fair corollary to the provision for dealing with the revenue for the first five years after the
imposition of uniform duties of customs, and further reflection has led me to the conclusion that, on the
whole, it will be a useful and beneficial provision.
END QUOTE
And
QUOTE Mr. BARTON.On the other hand, the power of the Commonwealth to impose duties of customs and of excise such as it may
determine, which insures that these duties of customs and excise would represent something like the average
opinion of the Commonwealth-that power, and the provision that bounties are to be uniform throughout
the Commonwealth, might, I am willing to concede, be found to work with some hardship upon the states
for some years, unless their own rights to give bounties were to some extent preserved.
END QUOTE
QUOTE Sir SAMUEL GRIFFITH:
2. Customs and excise and bounties, but so that duties of customs and excise and bounties shall be uniform
throughout the commonwealth, and that no tax or duty shall be imposed on any goods exported from one
state to another;
END QUOTE
QUOTE The CHAIRMAN.p39
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40
Taxation; but so that all taxation shall he uniform throughout the Commonwealth, and that no tax or duty
shall be imposed on any goods passing from one state to another.
END QUOTE
.
10
15

QUOTE
Mr. BARTON.-I am saying now that I do not think there is any necessity for clause 95 in its present form.
What I am saying however, is that it should be made certain that in the same way as you provide that the
Tariff or any taxation imposed shall be uniform throughout the Commonwealth, so it should be
provided with reference to trade and commerce that it shall be uniform and equal, so that the
Commonwealth shall not give preference to any state or part of a state. Inasmuch as we provide that all
taxation, whether it be customs or excise duties, or direct taxation, must be uniform, and inasmuch as
we follow the United States Constitution in that particular-in the very same way I argue that we should
protect the trade and commerce sub-section by not doing anything which will limit its effect. That is the real
logical position.
END QUOTE
.
20
25
30
QUOTE
END QUOTE
.
35
It should be clear that a UNIFORM law under the Commonwealth cannot somehow revert
back to a non-uniform law merely because of the States desiring to pursue their own kind of land
taxation. As such, on this basis also the State land taxes are floored (and so also any Territorial
land taxes).
.
40
45

QUOTE
Mr. ISAACS.-The court would not consider whether it was an oversight or not. They would take the
law and ask whether it complied with the Constitution. If it did not, they would say that it was invalid.
They would not go into the question of what was in the minds of the Members of Parliament when the law
was passed. That would be a political question which it would be impossible for the court to determine.
END QUOTE
.
50
55
As I previously indicated the Commonwealth could have allowed the States to collect under its
authority land taxes but it still would have to be uniform through the Commonwealth and as such
all States and Territories (quasi States) would be bound to have the same land taxes application
and not different rates. This then would clearly be a waste of exercise as why allow different
States/Territories to collect taxes when one federal office can do the same?
The issue then is of the Commonwealth somehow could enact legislation to retrospective provide
for legislation for the States/Territories to have collected land taxes on its behalf. Again, the first
hurdle is that retrospective legislation would be invalid where so to say it makes the conduct of a
honest man to be a criminal conduct. Further, where the States raised different levels of land
taxes then it cannot be uniform. One couldnt accept that a person of one State having paid less
then in another State now suddenly was to pay more by some kind of retrospective legislation
and neither that some who paid more now were going to receive a refund of any land taxes paid
above that of other States. After all commercial entities are based upon overhead cost, including
p40
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41
land taxes, etc, and as such a business enterprise might be determined where the lowest taxation
is available. Changing the system after the contracts are already in operation would make a
mockery of the reliability of State provisions.
I have indicated for years that what is needed is an OFFICE-OF-THE-GUARDIAN which
would advise the government, the parliament, the people and the Courts as to constitutional
meanings and application as a constitutional council. This is what is missing in Australia and as
result we have sport stars and singers and whatever elected to the parliament and basically no one
understands let alone comprehend the meaning and application of the constitutions.
.
10
It is obviously of concern to me that it took a massive 6 month period (from 31 August 2010 till
2 March 2011) to present this kind of response that doesnt appear to me to indicate to be any
well researched response.
.
15
Obviously I will pass on the 2-3-2011 response and my reply to those concerned with the issue.
.
EITHER WE HAVE A CONSTITUTION OR WE DONT!

.

.
20
.
25

7-2-2011
30
Cc: * Mr Ted Baillieu Premier ted.baillieu@parliament.vic.gov.au

.
35

Kristina,
your office for having provided me with a 13 September 2010 response (in regard of my
31 August 2010 correspondence to you regarding the unconstitutional State land taxes:
40
45
50
QUOTE
CMU10-16940
13 September 2010
Yours sincerely
David Swain
END QUOTE
p41
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42
.
Regretfully since then despite further subsequent correspondences nothing was heard about it
other then that I have become aware that Peter Geffroy of State Revenue Office appears to
disregard the proper consideration and persist with assessments irrespective of the issue that
State parliaments since 1910 have no constitutionally permissible legislative powers as to raise
land taxes since it became an exclusive federal power in 1910.
.
10
QUOTE Padfield v Minister of Agriculture & Fisheries and Food (1968) AC 997 (1968) 1 ALL ER 694 House
of Lords - Lord Upjohn and Lord Hodson Upjohn: - (Irrelevant consideration)
Here let it be said at once, he and his advisers have obviously given a bona fide and painstaking
consideration to the complaints addressed to him; the question is whether the consideration was sufficient
in law.
END QUOTE
.
15
20
25
It appears to me that You can be sure your letter will receive close consideration. then must
imply that before the State Revenue Office can pursue any assessment as to properties owned by
the Pincevics then such due and proper consideration is given in regard of if the State does or
doesnt have any constitutionally permissible land tax legislative powers.
In all fairness to the Pincevis the issue was raised by me way back on 31 August 2010 well
before the State Revenue Office purportedly issued its client ID 41494706 (correspondence ID
1539644953) & ID 4345407 (correspondence ID 1539640597) Land Tax Assessment Notices
and as such the Pincevicas are entitled to be given a proper explanation what was actually
considered and if the issue of the lack of legislative powers regarding State Land Taxes was not
considered then the Land Tax Assessment Notice would fail as it omitted proper consideration of
all relevant issues.
.
30
I have obtained a copy of a 13 January 2011 correspondence from the Office of state Revenue
and contrary to your office response stating You can be sure your letter will receive close
consideration. Nothing in the correspondence seems to me even remotely refer to the issues
raised in my n31 August 2010 and further correspondences.
As the Framers of the Constitution made clear all and any taxes unconstitutionally extracted from
a tax payer must be refunded. Hence, any State land Taxes the State of NSW so far charged and
had paid from the Pincevics should be refunded.
.
35
The State of NSW also should be aware that if this case were to go for litigation in the courts
then where the courts to uphold the claim that the States since 1910 no longer had legislative
powers to apply land taxes then this will be a considerable billion dollar issue. Do you really
desire to have this case to be litigated as such?
.
40
Kikonda Butema Farms Ltd v The Inspector General of Government HCT-00-CV-MA-593-2003

QUOTE
Constitution needles to mention is a supreme law of the land.
END QUOTE
.
45
50
http://www.austlii.edu.au/cgibin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=%22thi+act+and+all+law+made+by+the+parliament%22#fn50
QUOTE
The starting point for a principled interpretation of the Constitution is the search for the intention of its
makers[51].
END QUOTE
.
55

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well.
END QUOTE
.
The following applies as much to Federal laws of the Commonwealth of Australia as it does to
federal laws in the USA; http://familyguardian.tax40
tactics.com/Subjects/LawAndGovt/ChallJurisdiction/AuthoritiesArticle/AuthOnJurisdiction.htm
QUOTE
37 Am Jur 2d at section 8 states, in part: "Fraud vitiates every transaction and all contracts. Indeed, the
principle is often stated, in broad and sweeping language, that fraud destroys the validity of everything into
which it enters, and that it vitiates the most solemn contracts, documents, and even judgments."
END QUOTE
And
45
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60
QUOTE
The general misconception is that any statute passed by legislators bearing the appearance of law constitutes
the law of the land. The U.S. Constitution is the supreme law of the land, and any statute, to be valid, must be
in agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail.
This is succinctly stated as follows:
The general rule is that an unconstitutional statute, though having the form and name of law, is in
reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from
the time of its enactment, and not merely from the date of the decision so branding it. An
unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a
statute leaves the question that it purports to settle just as it would be had the statute not been enacted.
Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no
rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies
no acts performed under it. . .
A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede
any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is
superseded thereby.
No one is bound to obey an unconstitutional law and no courts are bound to enforce it.
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END QUOTE
Sixteenth American Jurisprudence
Second Edition, 1998 version, Section 203 (formerly Section 256)
.
10

QUOTE Mr. REID:
END QUOTE
.
15
It is therefore clear that when the Commonwealth commenced to legislate as to Land Taxes in
1910 then that so to say spelled the end of the States to legislate as such. The fact that the
Commonwealth abolished land taxes in 1952 itself didnt alter the fact that it had become an
exclusive Commonwealth legislative power. As such the 1956 State land Taxes legislation and
any subsequent amendments to it all are and remain to be unconstitutional.
.
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25

QUOTE
END QUOTE
.
30
35

QUOTE
be exercised.
END QUOTE
.
The Framers of the Constitution also embedded the legal principle in the constitution (out of
which within s.106 the States were created from the colonies):
.
40

QUOTE Mr. HIGGINS:
END QUOTE
.
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50
Obviously both Mr Robert Pincevic and his father Mr Anton Pincevic have urged me to follow
up the matter in view that your Department is still pestering them about State land taxes.
As a CONSTITUTIONALIST and Author of books in the INSPECTOR-RIKATI series on
certain constitutional and other legal issues my issue is foremost what is constitutionally
appropriate and for this directed myself to you. I intend to publish a copy of this correspondence
on the Internet so that you might be aware that I will disclose details to others so they may seek
to use it to their advantage to combat any unconstitutional State land tax.
I have provided the email address of Mr Robert Pincevic also (above) so you can also respond
to him and his father directly.
.
55
For the above I duo urge you to ensure that the State Land Tax Office immediately withdraw all
and any Assessment notices and do consider the issue of constitutional validity of State land
taxes and to give the Pincevics a proper response if it holds the legislation to be valid or not and
upon what consideration. After all litigation may attract more attention to other land tax
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assessed land holders then the State may desire, in particular where it were to end up being an
adverse decision to the State of NSW.
.

.

.

.
10

.
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It appears to me from your writings of your 2 June 2011 correspondence to Mr John Abbott that
you lack any proper understanding of the true meaning and application of the constitution
(Commonwealth of Australia Constitution Act 1900 (UK)) and that appears to me to be a very
serious defect in your education/understanding that robs taxpayers of their constitutional and
other legal rights.
As I have canvassed in my books published in the INSPECTOR-RIKATI series on certain
constitutional and other legal issues that what is needed is the OFFICE-OF-THE-GUARDIAN
(Dont forget the hyphens!) a constitutional council that advises the Government, the People,
the parliament and the Courts about the true meaning and application of the constitution within
witch within s106 the States were created subject to this constitution.
While it is for you to decide if you do desire to become competent in constitutional matters or not
I do urge you to refrain from expressing views about the constitution where this wrongly robs a
person of his legal entitlements as at the very least Mr John Abbott was entitled to a competent
response based upon the true meaning and application of the constitution!
.
30
As the High Court of Australia in HCA27 of 1999 (Wakim) made clear there is no estoppel
against the constitution and as such there can be no time limit against the constitutional objection
by Mr John Abbott and his rights to obtain his refunds.
.
35
40
QUOTE Hansard 1-3-1898 Constitution Convention Debates Sir JOHN DOWNER.I think we might, on the attempt to found this great Commonwealth, just advance one step, not beyond
the substance of the legislation, but beyond the form of the legislation, of the different colonies, and say
that there shall be embedded in the Constitution the righteous principle that the Ministers of the
Crown and their officials shall be liable for any arbitrary act or wrong they may do, in the same way as
any private person would be.
END QUOTE
.
We all make errors and I recognise you may have done so likewise, being it by the lack of proper
education about constitutional issues or otherwise, but it can never be an excuse to rob a person
of his constitutional so his legal rights.
.
45
50
As was recently made known during my weekly radio program about constitutional matters by
Anastasia that when one refers to the constitution in the courts the judges will dismiss this as
not being relevant. Now, one must be a complete moron to hold the constitution doesnt apply to
the courts where not a single court can operate but by the powers provided for within the
constitution. As such those lawyers parading as judges/magistrates who discount the application
of the constitution have placed themselves above the constitution and so the RULE OF LAW
and to me this is treason.
QUOTE Hansard 2-2-1898 Constitution Convention Debates Mr. DEAKIN (Victoria).p45
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46
The record of these debates may fairly be expected to be widely read, and the observations to which I
END QUOTE
.
QUOTE Hansard 1-2-1898 Constitution Convention Debates Mr. OCONNER (New South Wales).Because, as has been said before, it is [start page 357] necessary not only that the administration of
justice should be pure and above suspicion, but that it should be beyond the possibility of suspicion;
END QUOTE
.
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QUOTE Hansard 17-2-1898 Constitution Convention Debates Mr. OCONNOR.In this case the Constitution will be above Parliament, and Parliament will have to conform to it.
END QUOTE
.
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20
QUOTE Hansard 14-4-1897 Constitution Convention Debates Mr. O'CONNOR:

The very principle of the Federal Constitution is this: that the Constitution is above both Houses of
Parliament. That is the difference between it and our Houses of Parliament now. The Federal Parliament
must be above both Houses of Parliament, and they must conform to it, because it is in the charter
under which union takes place, and the guarantee of rights under which union takes place; and, unless
you have some authority for them to interpret [start page 592] that, what guarantee have you for
preserving their rights at all.
ENDQUOTE
.
QUOTE Hansard 6-3-1891 Constitution Convention Debates Mr. THYNNE:

I shall quote from Mr. Dicey's recent work, which is very clear in its language. He says:
25
One of the characteristics of a federation is that the law of the constitution must be either legally
immutable or else capable of being changed only by some authority above and beyond the ordinary
legislative bodies, whether federal or state legislatures, existing under the constitution.
END QUOTE
.
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35
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QUOTE Hansard 6-3-1891 Constitution Convention Debates Mr. THYNNE:

The constitution of this federation will not be charged with the duty of resisting privileged classes, for
the whole power will be vested in the people themselves. They are the complete legislative power of the
whole of these colonies, and they shall be so. From [start page 106] them will rise, first of all, the federal
constitution which we are proposing to establish, and in the next place will come the legislative powers of the
several colonies. The people will be the authority above and beyond the separate legislatures, and the
royal prerogative exercised, in their interest and for their benefit, by the advice of their ministers will be
practically vested in them. They will exercise the sovereignty of the states, they will be charged with the
full power and dignity of the state, and it is from them that we must seek the giving to each of those bodies
that will be in existence concurrently the necessary powers for their proper management and existence. Each
assembly, each legislature, whether state or federal existing under this constitution, will be as Dicey
again says-a merely subordinate law-making body whose laws will be valid, whilst within the authority
conferred upon it by the constitution, but invalid and unconstitutional if they go beyond the limits of
such authority.
END QUOTE
.

QUOTE
Sir GEORGE GREY: I beg to propose that the following resolution stand as resolution No. 5:The inhabitants of each of the states of federated Australasia ought to be allowed to choose, and if they see
fit from time to time to vary, the form of state government under which they desire to live. Provision should
therefore be made in the federal constitution which will [start page 478] enable the people of each state
to adopt by the vote of the majority of voters, their own form of state constitution.
50
END QUOTE
.
55
QUOTE Hansard 18-3-1891 Constitution Convention Debates

Dr. COCKBURN: I think we have nothing whatever to do with deciding the details of the state
constitutions. On the other hand, I think it appertains to the functions of this Convention to decide that the
power of framing a constitution shall be in the hands of the several states. At present the legislatures of the
various colonies can only be altered with the consent of the Imperial Government. Is it intended that that
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shall remain? When we have a federated Australasia, in which we have state legislatures and a federal
legislature, is it intended that the state legislatures shall have the power of altering their constitutions at will or
not? From that point of view I think the proposition put forward by the hon. member, Sir George Grey, is
decidedly within the powers of the Convention, the power to lay down a general rule, without touching the
details of any individual constitution, that the various states should have the power of framing their own
constitutions according to the will of the majority of the people of those states.
END QUOTE
.
10
Again (RE Section 123);

QUOTE Hansard 18-3-1891 Constitution Convention Debates Sir GEORGE GREY:
Provision should therefore be made in the federal constitution which will [start page 478] enable the
people of each state to adopt by the vote of the majority of voters, their own form of state constitution.
END QUOTE
.
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QUOTE Hansard 9-9-1897 Constitution Convention Debates Mr. SYMON:

It cannot possibly extend the operation of our laws generally one atom further than the constitutional
law will permit.
END QUOTE
.
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QUOTE HANSARD 10-03-1891 Constitution Convention Debates

Dr. COCKBURN: All our experience hitherto has been under the condition of parliamentary
sovereignty. Parliament has been the supreme body. But when we embark on federation we throw
parliamentary sovereignty overboard. Parliament is no longer supreme. Our parliaments at present are
not only legislative, but constituent bodies. They have not only the power of legislation, but the power
of amending their constitutions. That must disappear at once on the abolition of parliamentary
sovereignty. No parliament under a federation can be a constituent body; it will cease to have the
power of changing its constitution at its own will. Again, instead of parliament being supreme, the
parliaments of a federation are coordinate bodies-the main power is split up, instead of being vested in
one body. More than all that, there is this difference: When parliamentary sovereignty is dispensed
with, instead of there being a high court of parliament, you bring into existence a powerful judiciary
which towers above all powers, legislative and executive, and which is the sole arbiter and interpreter
of the constitution.
END QUOTE
.
35

The Hon. A. DEAKIN: I say the great bulk of them are of that character, and am open to refutation if I am
wrong, I should say that the whole of the thirty-seven subjects, but, indisputably, the great bulk of them, are
subjects on which no question of state rights and state interests could arise except by the merest accident. It is,
as the right hon. gentleman admitted, a grave defect in our constitution if we permit these questions to be left
for all time to be determined in a purely states house, or by a state referendum, when those questions are not
state questions-when they ought to be decided, not on state lines, but on national lines, and by a national
referendum.
40
END QUOTE
.
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60
QUOTE Hansard 17-3-1898 Constitution Convention Debates Mr. BARTON.Providing, as this Constitution does, for a free people to elect a free Parliament-giving that people
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well.
END QUOTE
.
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What therefore is required to be established is if the State had in the first place any legislative
powers since 11 November 1910 for State land Taxes. If it is found, such as the Income Tax
legislative issue, that indeed the States no longer possessed this legislative powers since 111
November 1910 then as set out above it was the end of this kind of State Land Tax legislative
power.
While the then NSW Government relies upon a return of legislative power this simply is not
feasible within the structure of the constitution!
END QUOTE
.
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As a candidate in recent elections I very much promoted that State Land Taxes are
unconstitutional! While I can accept (as made known above) that a person my by lack of
education or otherwise misconceive/misunderstand what is constitutionally permissible it is
however no excuse to rob in the process a person of a tax refund.
And, if at least you are or may become competent in constitutional matters then I expect you will
set out in future how you argue, if you still maintain the same position as to constitutional
validity of State land Taxes, any such legislative powers were returned, where the constitution
itself doesnt provide for it.
QUOTE Hansard 8-3-1898 Constitution Convention Debates Mr. ISAACS.-
We want a people's Constitution, not a lawyers' Constitution.

55
END QUOTE
For the record Premier Ted Baillieu was provided with correspondence to the NSW Premier (as
she then was).Kristine Keneally and therefore I would have expected that you would have been
fully aware of the issues and to me this underlines rather what might be described as a failure in
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49
internal communications as if the State Revenue Office was kept unaware of my writings
preceding your 2 June 2011 correspondence then all those taxpayers still being slugged by
unconstitutional State land Taxes are not at all provided with the Law & Order government
that Premier Ted Baillieu so much promised during his election campaign! Who then can you
trust, I may ask? The limited set out above is not intended and neither must be perceived to
set out all details/issues but should at the least ensure that you will reconsider matters and
indeed the issue of State land Taxes and why on earth this was never appropriately
considered from onset considering so many lawyers are in the Parliament and/or engaged
by the government?
.

.
15
.
20
G. H. Schorel-Hlavka
END QUOTE 5-7-2011 correspondence to Victorian SRO

QUOTE 6-9-2011correspondence to
Mr Ted Baillieu Premier

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the Victorian Government

6-9-2011
ted.baillieu@parliament.vic.gov.au
.
Cc: * OFerrall Premier <thepremier@www.nsw.gov.au>

* Civic Compliance Victoria GPO Box 1916, Melbourne VIC 3001 Traffic_Inquiries@tenixsolutions.com
* Mr Grey Chief Magistrate, Magistrates Court of Victoria
Ground Floor, 277 William Street Melbourne Vic 3000
C/o help@magistratescourt.vic.gov.au
.
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Re: State Land Tax FREEDOM OF SPEECH INFRINGEMENT NOTICE etc

Ted,
according to my records I did forward to you various copies of correspondences regarding
the purported State Land Taxes, and will quote below documents, in case they were lost from
your files, as after all we wouldnt want you to be so disorganised to not knowing what is going
on, would we?
Also, because I am a CONSTITUTIONALIST I do research matters on basis of the constitution
and this frequently land me in U.S.A. Authorities (judicial decisions) albeit I do consider
obviously the different applications as the U.S.A. constitution is not always as the
Commonwealth of Australia Constitution Act 1900 (UK) with its intend.
Hansard 11-3-1891 Constitution convention Debates (Official Record of the Debates of the National
QUOTE
Mr. GILLIES: The people themselves have undertaken the duty of creating such a force as, in their
judgment, would be sufficient to meet any foe that might land on these shores. There is nothing in these
resolutions that I can see that would justify the statement that it is contemplated by any colony, or by
any group of colonies, or by any individual, to bring about a standing army of such a kind as that to
which the hon. member referred-a standing army that might be a menace to the liberties of the
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people. The people themselves have created such forces as we have, it is they who willingly maintain
them, and these resolutions contemplate no more and no less.
END QUOTE
10
QUOTE
Mr. DEAKIN:
The people of Victoria are under many obligations to their distinguished Chief Justice and especially for his
judgment in this suit, in which he has displayed the acumen of the lawyer, the eloquence of the orator, and
the grasp of the statesman. Chief Justice Higinbotham said:
It was the intention of the Legislative Council to provide a complete system of responsible government in
and for Victoria, and that intention was carried into full legislative effect with the knowledge and approval
and at the instance of the Imperial Government by the "Constitution Statute," passed by the Imperial
Parliament.
15
20
He was supported in his opinion by Mr. Justice Kerferd, who for some time was Attorney-General of
Victoria. Mr. Justice Kerferd said:
All the prerogatives necessary for the safety and protection of the people, the administration of the law, and
the conduct of public affairs in and for Victoria, under our system of responsible government, have passed
as an incident to the grant of self-government (without which the grant itself would be of no effect) and
may be exercised by the representative of the Crown in the advice of responsible ministers.
These two quotations embody the belief which was held until lately in Victoria; the majority of our own
Supreme Court overruled this reading. Mr. Justice Williams said:
25
I have been for years in common with, I believe, very many others, under the delusion (as I must term it)
that we enjoyed in this colony responsible government in the proper sense of the term. I awake to find, as
far as my opinion goes, that we have merely an instalment of responsible government.
Mr. Justice Holroyd considers that we have only a measure of self-government, and two other judges
concur. My colleague, Mr. Wrixon, who argued the case with great force and ability before the Privy
Council, says:
30
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If the reading put by the Supreme Court in Victoria upon our Constitution Act be correct, then not
only in the colony of Victoria, but in all the groups of Australasian colonies, the governments which
we now enjoy are without warrant of law.
That is a strong statement, and the judgment of the majority of our Supreme Court justifies me in asserting
that this Convention cannot too soon face the issue involved in it. I take it that the people of Australasia will
not be satisfied with any "instalment" or any "measure" of responsible government, or any limitations,
except such as are necessary to the unity of the empire. We claim, without shadow of doubt or vestige of
qualification, all the powers and privileges possessed by Englishmen. The governor-general, as
representative of the Queen in these federated colonies, should be clothed by statute with all the powers
which should belong to the representative of her Majesty; he should be above all risk of attack, because he
should act only on the advice of responsible ministers, who should be prepared either to obtain the
sanction of Parliament for their acts or vacate office. Parliament, in its turn, should be brought into
intimate relation with the electorates. This is true, popular government.
END QUOTE
QUOTE
Mr. DEAKIN:
They have believed that they enjoyed freedom [start page 86] under their present constitution second
to none in the world. When the
50
question of a second chamber comes to be considered, they will assuredly not be satisfied to possess less
freedom. More than this. In framing a federal constitution, we should set out with the explicit claim to
possess and exercise all the rights and privileges of citizens of the British empire to the same extent
that they are possessed and exercised by our fellow-countrymen in Great Britain itself. Australia is
entitled to absolute enfranchisement. In our union we attain political manhood and the stature of a fullgrown democracy.
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END QUOTE
http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=10-1764P.01A
Plaintiff, Appellee,
v.
JOHN CUNNIFFE, in his individual capacity; PETER J. SAVALIS, in his individual capacity; JEROME
HALL-BREWSTER, in his individual capacity; CITY OF BOSTON,
10
Defendants, Appellants.
QUOTE
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30
35
Long-standing principles of constitutional litigation entitle public officials to

qualified immunity from personal liability arising out of actions taken in the
exercise of discretionary functions. See Harlow v. Fitzgerald, 457 U.S. 800,
807 (1982); Barton v. Clancy, 632 F.3d 9, 21 (1st Cir. 2011). The qualified
immunity doctrine "balances two important interests -- the need to hold public
officials accountable when they exercise power irresponsibly and the need to
shield officials from harassment, distraction, and liability when they perform
their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231 (2009). We
apply a two-prong analysis in determining questions of qualified immunity.
Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009). These prongs,
which may be resolved in any order, Pearson, 555 U.S. at 236, require that we
decide "(1) whether the facts alleged or shown by the plaintiff make out a
violation of a constitutional right; and (2) if so, whether the right was 'clearly
established' at the time of the defendant's alleged violation," Maldonado, 568
F.3d at 269.
The latter analysis of whether a right was "clearly established" further divides
into two parts: "(1) 'the clarity of the law at the time of the alleged civil rights
violation,' and (2) whether, given the facts of the particular case, 'a reasonable
defendant would have understood that his conduct violated the plaintiff['s]
constitutional rights.'" Barton, 632 F.3d at 22 (alteration in original) (quoting
Maldonado, 568 F.3d at 269). An affirmative finding on these inquiries does
"not require a case directly on point, but existing precedent must have placed
the . . . constitutional question beyond debate." Ashcroft v. al-Kidd, 131 S. Ct.
2074, 2083 (2011). At bottom, "the salient question is whether the state of the
law at the time of the alleged violation gave the defendant fair warning that his
particular conduct was unconstitutional." Maldonado, 568 F.3d at 269.
END QUOTE
40
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JOHN CUNNIFFE v SAVALIS v HALL-BREWSTER v CITY OF BOSTON

QUOTE
As the Supreme Court has observed, "the First Amendment goes beyond
protection of the press and the self-expression of individuals to prohibit
government from limiting the stock of information from which members of the
public may draw." First Nat'l Bank v. Bellotti, 435 U.S. 765, 783 (1978); see
also Stanley v. Georgia, 394 U.S. 557, 564 (1969) ("It is . . . well established
that the Constitution protects the right to receive information and ideas."). An
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important corollary to this interest in protecting the stock of public information
is that "[t]here is an undoubted right to gather news 'from any source by
means within the law.'" Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978)
(quoting Branzburg v. Hayes, 408 U.S. 665, 681-82 (1972)).
5
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The filming of government officials engaged in their duties in a public place,

including police officers performing their responsibilities, fits comfortably
within these principles. Gathering information about government officials in a
form that can readily be disseminated to others serves a cardinal First
Amendment interest in protecting and promoting "the free discussion of
governmental affairs." Mills v. Alabama, 384 U.S. 214, 218 (1966). Moreover,
as the Court has noted, "[f]reedom of expression has particular significance
with respect to government because '[i]t is here that the state has a special
incentive to repress opposition and often wields a more effective power of
suppression.'" First Nat'l Bank, 435 U.S. at 777 n.11 (alteration in original)
(quoting Thomas Emerson, Toward a General Theory of the First Amendment
9 (1966)). This is particularly true of law enforcement officials, who are
granted substantial discretion that may be misused to deprive individuals of
their liberties. Cf. Gentile v. State Bar of Nev., 501 U.S. 1030, 1035-36 (1991)
(observing that "[t]he public has an interest in [the] responsible exercise" of
the discretion granted police and prosecutors). Ensuring the public's right to
gather information about their officials not only aids in the uncovering of
abuses, see id. at 1034-35 (recognizing a core First Amendment interest in "the
dissemination of information relating to alleged governmental misconduct"),
but also may have a salutary effect on the functioning of government more
generally, see Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8 (1986) (noting
that "many governmental processes operate best under public scrutiny").
In line with these principles, we have previously recognized that the
videotaping of public officials is an exercise of First Amendment liberties.
30
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END QUOTE
JOHN CUNNIFFE v SAVALIS v HALL-BREWSTER v CITY OF BOSTON
QUOTE
Our recognition that the First Amendment protects the filming of government
officials in public spaces accords with the decisions of numerous circuit and
district courts. See, e.g., Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th
Cir. 2000) ("The First Amendment protects the right to gather information
about what public officials do on public property, and specifically, a right to
record matters of public interest."); Fordyce v. City of Seattle, 55 F.3d 436,
439 (9th Cir. 1995) (recognizing a "First Amendment right to film matters of
public interest"); Demarest v. Athol/Orange Cmty. Television, Inc., 188 F.
Supp. 2d 82, 94-95 (D. Mass. 2002) (finding it "highly probable" that filming
of a public official on street outside his home by contributors to public access
cable show was protected by the First Amendment, and noting that, "[a]t base,
plaintiffs had a constitutionally protected right to record matters of public
interest"); Channel 10, Inc. v. Gunnarson, 337 F. Supp. 634, 638 (D. Minn.
1972) (holding that police interference with television newsman's filming of
crime scene and seizure of video camera constituted unlawful prior restraint
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under First Amendment); cf. Schnell v. City of Chi., 407 F.2d 1084, 1085 (7th
Cir. 1969) (reversing dismissal for failure to state a claim of suit claiming
police interference with news reporters and photographers' "constitutional
right to gather and report news, and to photograph news events" under the
First Amendment (internal quotation mark omitted)), overruled on other
grounds by City of Kenosha v. Bruno, 412 U.S. 507 (1973); Connell v. Town of
Hudson, 733 F. Supp. 465, 471-72 (D.N.H. 1990) (denying qualified immunity
from First Amendment claim to police chief who prevented freelance
photographer from taking pictures of car accident).
It is of no significance that the present case, unlike Iacobucci and many of
those cited above, involves a private individual, and not a reporter, gathering
information about public officials. The First Amendment right to gather news
is, as the Court has often noted, not one that inures solely to the benefit of the
news media; rather, the public's right of access to information is coextensive
with that of the press. Houchins, 438 U.S. at 16 (Stewart, J., concurring)
(noting that the Constitution "assure[s] the public and the press equal access
once government has opened its doors"); Branzburg, 408 U.S. at 684 ("[T]he
First Amendment does not guarantee the press a constitutional right of special
access to information not available to the public generally."). Indeed, there are
several cases involving private individuals among the decisions from other
courts recognizing the First Amendment right to film. See, e.g., Smith, 212
F.3d 1332; Robinson v. Fetterman, 378 F. Supp. 2d 534 (E.D. Pa. 2005)
(holding that arrest of individual filming police activities from private property
violated First Amendment); Cirelli v. Town of Johnston Sch. Dist., 897 F.
Supp. 663 (D.R.I. 1995) (holding that teacher had a right under the First
Amendment to videotape potentially hazardous working conditions at school,
which were a matter of public concern). Moreover, changes in technology and
society have made the lines between private citizen and journalist exceedingly
difficult to draw. The proliferation of electronic devices with video-recording
capability means that many of our images of current events come from
bystanders with a ready cell phone or digital camera rather than a traditional
film crew, and news stories are now just as likely to be broken by a blogger at
her computer as a reporter at a major newspaper. Such developments make
clear why the news-gathering protections of the First Amendment cannot turn
on professional credentials or status.
END QUOTE
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QUOTE
Mr. DEAKIN:
The people of this continent were not landed upon its shore to-day ignorant of the responsibilities of selfgovernment. They have amply proved in the past that they are entitled to be trusted with all the powers
appertaining to a free people. They have believed that they enjoyed freedom [start page 86] under their
present constitution second to none in the world.
END QUOTE
QUOTE
Dr. COCKBURN:
We know the tendency is always towards the central authority, that the central authority constitutes
a sort of vortex to which power gradually attaches itself. Therefore, all the buttresses and all the ties
should be the other way, to assist those who uphold the rights of the states from being drawn into this
central authority, and from having their powers finally destroyed. The whole history of federation in
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America, whether it be the United States or Canada, has proved this: that the tendency is towards
centralisation, and away from that local government which is inseparable from freedom. I have
heard it said that those who advocate state rights are taking a conservative view of the question. I
would like to know since what time have centralisation and democracy been associated? Those who
advocate state rights advocate local government, under whose shadow alone democracy can exist.
There is nothing in common between centralisation and democracy, and if you handicap a house,
which is erected, to preserve state rights, what have you to prevent the establishment, in this huge
island of Australia, of a strong central government which is local only to one portion of the continent,
and as far as the rest of the continent is concerned is distant and central? I maintain that a central
government, just inasmuch as it never can be associated with the power of the people, is inseparably
associated with tyranny, arising either from ignorance or design-frequently from ignorance-because
a central and distant government can never properly appreciate the local conditions for which it is to
legislate. I [start page 708] am surprised that any one in this Convention should for one moment say
that to strengthen in every way the rights of the states, as such-to protect in every way the local
institutions-is the conservative mission. The whole history of federation has proved it is otherwise. It
was in the name of state rights, when the question of the Constitution of America was being
discussed, that the most fervent appeals to liberty that ever stirred the human breast were made, and
all those opposed to state rights were the conservatives, the monarchists of that time. The strongest
upholders of state rights from time to time have been those in favour of government by the people,
and it is only when you have state rights properly guarded, and safeguard local government, that you
can have government by the people. Government at a central and distant part is never government
by the people, and may be just as crushing a tyranny under republican or commonwealth forms as
under the most absolute monarchy. I do hope that hon. members will not allow themselves to be
hoodwinked in this matter. It seems that the crushing majority in favour of the state rights that are
essential to federation, which we had at the commencement of this discussion, has dwindled away. I
maintain that unless the state rights are in every way maintained-unless buttresses are placed to
enable them to stand up against the constant drawing towards centralisation-no federation can ever
take root in Australia. It will not be a federation at all. It will be from the very start a centralisation,
a unification, which, instead of being a guardian of the liberty of the people, will be its most distinct
tyrant, and eventually will overcome it.
END QUOTE
QUOTE
Dr. COCKBURN: Local freedom and government by the people are inseparable.
END QUOTE
QUOTE Mr. ADYE DOUGLAS:
It is to be hoped that when such a proposal goes before the home Government some objection will be taken
to it. I could understand that in dealing with foreign nations we should put duties upon their goods, and I
should expect that we ourselves should be treated by them in the same way; but when the mother country
takes all our productions without imposing the slightest duty it seems to me not a very generous proposal
that we should raise a barrier against the productions of the mother country and treat her as a foreign nation
That is very loyal indeed; in fact I am astonished at the loyalty of this Convention. I am not going to inflict
upon the Convention my opinions with respect to loyalty; but when I hear that we are to be deprived of the
Governor appointed by the Queen, that we are to abolish the power of veto, and that we are not to treat with
the mother country upon fair and equal terms as regards fiscal matters, I am inclined to ask what hon.
gentlemen think about their loyalty, and to say that their loyalty is a sham, and nothing else. How was I
treated the other day? When walking down Circular Quay, I happened to see some goods that were
imported, and some man said to me, "That is the effect of free-trade." I said, "I am a free-trader"; to which
he replied, "You ought to be shot down, and I would shoot you down if I had the opportunity. I am a
protectionist." Is that the sort of conduct we are to receive here because we have freedom of speech
and freedom of opinion? Are free-traders to be crushed down becauseEND QUOTE
QUOTE
Captain RUSSELL:
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It is a matter for social dealing. It is a matter with which men will deal rather through municipalities
than through a great federation in advancing, what I believe it is necessary we should advance, the
true liberties and freedom of the people.
END QUOTE
5
QUOTE
Mr. SYMON: We are the one country of freemen on the continent!
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Mr. TRENWITH: I thank my hon. and learned friend for that term. There is one colony of freemen on
the continent. Why? Because every voter in South Australia has equal power with every other voter. We are
now going to create another form of citizenship, and we must create it under conditions that will
maintain freedom to the citizens of the nation, as South Australia has obtained freedom for the citizens
of the state. Therefore, I am justified in saying that we have a right to consider the people of the larger
states must and will consider whether we shall hand to posterity a heritage of slavery or of freedom. If we
vote for equal power to every citizen, we shall be making free people of the future Australians; if we
vote for greater power for one citizen than for another, we shall be putting chains upon the legs of the
citizens in the larger states of this commonwealth.
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END QUOTE
QUOTE
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Mr. BARTON:
I hope that I am at any rate acting in the spirit in which we all labour together, and that the result of our
labour will be to found a state of high and august aims, working by the eternal principles of justice and not
to the music of bullets, and affording an example of freedom, political morality, and just action to the
individual, the state and the nation which will one day be the envy of the world.
END QUOTE
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QUOTE
Sir GEORGE GREY:
These must seem almost too daring speculations; but, in point of fact, we are marching on to an
altogether new epoch, to new times, and the very essence of the constitution must be this: I heard one
hon. gentleman here state that we must remember that we are legislating for the future; and I agree
with him if he meant that we are legislating in such a manner as to enable the future to legislate for
itself-that it is our object that freedom in every respect shall be given, so that as each generation
comes on they shall say, "Blessed be those ancestors of ours who have left us this freedom, so that
nothing can take place-no changes in the state of the world-but we possess all powers to define the
measures most necessary to bring peace and tranquillity at every epoch it comes on." That is the real
duty which we should aim to fulfil; and it is only by allowing the people to speak, and at all times to
declare [start page 140] their views and their wishes, and to have them carefully considered, that we
can insure peace, tranquillity, and prosperity to each country in each successive epoch of time as it
arrives.
END QUOTE
QUOTE
Mr. FITZGERALD:
The people of Australia have stretched their limbs. They feel themselves animated by that high spirit
which characterised their ancestors. They feel within them that they are doing a duty inspired by the
same motives as those of their race before them. They know that men of their race have fashioned
and formed a large portion of the globe in a manner that redounds to their honor and credit, and to
the freedom of the world. They know that you cannot advance this country without adding to the
wealth, and the national importance, and the power of that grand empire to which we belong, and
they know that the expansion of the empire means the happiness and the freedom of everybody who
lives under the protection of its flag.
END QUOTE
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QUOTE
The Hon. J.H. HOWE: Not in the case of money bills. The power of the purse is the golden key which
rules everything and opens every door. We know that we have allowed these things to be frittered away,
and for the sake of federation and for the sake of entering into a brotherhood we have actually departed
from the first position which we took up. After we have done that, some hon. members want to bring in
these insidious amendments, so that the states shall have no independent life. Since I joined this
Convention in Adelaide, that fair city of the south, where the people are as free as their air is pure,
and whose freedom I wish to maintain, I have undergone the difficult task of fighting an election.
END QUOTE
QUOTE
The Hon. J.H. HOWE:
. I remember once reading about an Irish deputation which waited upon one of their representatives, and
accused him of selling his country. Of course the incident that I am relating refers to the time when
Castlereagh and English gold deprived Ireland of its parliament, and almost enslaved its people; and when
the deputation waited on him, and accused him of having done a certain thing to the horror of, the
deputation, he went down on his knees and thanked God that he had a country to sell. We who come from
the other colonies are not imbued with that idea. We are here to give that which is memory to the vigorous
life of a free people occupying the whole of Australia; but we are not in a position, and we do not intend to
give you that which belongs purely to the state. I say that I would rather become a native of Japan, than
remain the citizen of a small state that yielded the powers that this Convention is trying to force from it.
What would national life be without freedom? We have done very well hitherto. Our colony is looked
upon as a small colony that is, so far as population is concerned; but we have done great work with
our population; we are a vigorous and a free people: we have undertaken works of great magnitude;
we have the intelligence and common-sense to know when our rights are invaded, and we have the
courage to try to maintain those rights. However much, from our geographical position, we may desire
federation, it must not be a federation which will make us subservient to the larger colonies.
END QUOTE
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QUOTE
Mr. GILLIES:
Surely we are not to be told that, because that is in contemplation, there is at the same time some
secret purpose or object of depriving the people of their right on any particular occasion when
possibly there may be some great difference of opinion on a great public question. There have been
no peoples in these colonies who have not enjoyed the most perfect freedom to express their opinions
in public, and through their representatives in parliament, on any public question of importance.
There has never been any occasion when such an opportunity has not been given to every man in this
country, and so free and liberal are our laws and public institutions that it has never been suggested
by any mortal upon this continent that that right should be in any way restricted. On the contrary,
we all feel proud of the freedom which every one in this country enjoys. It is a freedom not surpassed
in any state in the world, not even in the boasted republic of America.
END QUOTE
through their Parliament the power of the purse-laying at their mercy from day to day the existence
of any Ministry which dares by corruption, or drifts through ignorance into, the commission of any
act which is unfavorable to the people having this security, it must in its very essence be a free
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freedom in this Constitution. There is the guarantee which none of us have sought to remove, but
every one has sought to strengthen. How we or our work can be accused of not providing for the
popular liberty is something which I hope the critics will now venture to explain, and I think I have
made their work difficult for them. Having provided in that way for a free Constitution, we have
provided for an Executive which is charged with the duty of maintaining the provisions of that
Constitution; and, therefore, it can only act as the agents of the people. We have provided for a
Judiciary, which will determine questions arising under this Constitution, and with all other
questions which should be dealt with by a Federal Judiciary and it will also be a High Court of
Appeal for all courts in the states that choose to resort to it. In doing these things, have we not provided,
first, that our Constitution shall be free: next, that its government shall be by the will of the people, which is
the just result of their freedom: thirdly, that the Constitution shall not, nor shall any of its provisions, be
twisted or perverted, inasmuch as a court appointed by their own Executive, but acting
independently, is to decide what is a perversion of its provisions? We can have every faith in the
constitution of that tribunal. It is appointed as the arbiter of the Constitution. It is appointed not to be
above the Constitution, for no citizen is above it, but under it; but it is appointed for the purpose of
saying that those who are the instruments of the Constitution-the Government and the Parliament of
the day-shall not become the masters of those whom, as to the Constitution, they are bound to serve.
What I mean is this: That if you, after making a Constitution of this kind, enable any Government or
any Parliament to twist or infringe its provisions, then by slow degrees you may have that
Constitution-if not altered in terms-so whittled away in operation that the guarantees of freedom
which it gives your people will not be maintained; and so, in the highest sense, the court you are
creating here, which is to be the final interpreter of that Constitution, will be such a tribunal as will
preserve the popular liberty in all these regards, and will prevent, under any pretext of constitutional
action, the Commonwealth from dominating the states, or the states from usurping the sphere of the
Commonwealth. Having provided for all these things, I think this Convention has done well.
END QUOTE
QUOTE Mr. BARTON.Is it a Constitution which gives all reasonable and liberal guarantees of freedom? That can only be
answered in one way. Is it a Constitution the action of which, until amended by the people, is preserved and
safeguarded? There is only one answer to that. Is it a Constitution which the people themselves, by their
will expressed by their Parliament and themselves, are able to alter to suit their needs under conditions of
reasonable thought, without unreasonable difficulty? There can be no answer but one to. that question.
END QUOTE
QUOTE
Mr. HOLDER.We know that it could never have been perfect by any possible contingency. But we may claim that it is
sufficiently perfect for a free and self-reliant people to live under its rule with their freedom undiminished;
and my answer to those who ask whether the Bill is acceptable in this light is this: When we met in this
Convention we entered upon a task in which we realized we should be untrue to the trust reposed in us if
we had not dealt with the matters which came before us with the sense of responsibility resting upon every
one of us that we were dealing with matters on behalf of independent and self-reliant states.
END QUOTE
QUOTE
Mr. MCMILLAN:
When a popular constituency fails to elect me I shall be no longer in public life, so I am not afraid of
the real public opinion; but I cannot forget that even in England, the very home of constitutional
freedom, the very cradle of our rights and liberties, public opinion is often absolutely reversed in a
few years. When I consider the position we occupy, that our action will not be criticised by the mere
ephemeral, frothy views of certain people at the moment, but will be considered by the people of this
country through all time, I say that while I am willing to try to the utmost of my knowledge and
ability to gauge public opinion, while, I say, that if I knew thoroughly what public opinion was on any
question, I would bow to it; still, I believe that the people of this country by the confidence they gave
us practically instructed us to make a constitution which would be not merely the outcome of a
passing wave and wind of opinion, but a constitution which we believe is based on principle, on the
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lines of our own constitution, and which will stand the shock of time. I am quite willing, as I said
before, to leave to a certain extent this matter in the hands of the executive.
END QUOTE
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QUOTE
Mr. REID (New South Wales).I think, to frame words which will secure freedom to a railway system to impose preferential rates
for developmental purposes, but not differential rates to attract the trade of another colony.
END QUOTE
QUOTE
Mr. REID.-I am willing to leave each colony to run its own railways on its own lines, and to allow that on
the part of New South Wales implies a similar freedom on the part of Victoria or any of the other colonies
owning railways. But I am quite willing to give the Commonwealth power, in the interests of what we will
call freedom of commerce-and in that sense equality of commerce-to redress a grievance which is based
upon an exaction, an unfair and unequal exaction, from any class of persons using the railways of any State.
END QUOTE
QUOTE
That is a quotation, and I hope it will be understood that it is within quotation marks. There is this further
observation I should like to make. I do not say for a moment that the vast wealth and splendid progress
which we have witnessed in the United States, with its unsurpassed enjoyment of peace and freedom, is due
to its constitution, or to its form of government; but with all its defects, that constitution has been no
hindrance to national prosperity. T
END QUOTE
As I am currently battling the courts to ensure there is a separation of power between the
legislators, the executives (that is the government) and the judiciary in regarding an
infringement notice I find to deal with this briefly as to it causing me to research FREEDOM
OF SPEECH also and how this applied to the Commonwealth of Australia and so the States
also, and hence my recording of actions by Authorities is lawful. Such as the wheel-clamping of
vehicles, etc.
.
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As author of books in the INSPECTOR-RIKATI series on certain constitutional and other

legal issues there then can be no doubt that I am in the position to make recordings of police or
others in the execution of their enforcement, well what purports to be enforcement, so I can
expose it all. The FREEDOM OF SPEECH clause of the First Amendment of the U.S.A.
constitution actually is embedded in our constitution just that most people are totally unaware of
this. And this then brings us back also as to the purported STATE LAND TAXES which I
consider is nothing less than government sponsored terrorism upon land holders and not
warranted by the RULE OF LAW of which the constitution is the primary source of any RULE
OF LAW.
.
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QUOTE
Mr. BARTON: Does that refer to their use for navigation,?
Mr. GORDON: I am prepared, to meet the catchy argument of my friend, and will deal with it later on.
Pitt Cobbott, Professor of Law in the University of Sydney, after stating the argument of strict law, says:
55
But though in strict law each State could thus appropriate and regulate waters wholly within its
territory, the use and navigation of most of the more important navigable rivers that traverse the territory
of different States, have now come to be generally regulated by treaty or convention.
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I have other authorities here by the dozen.
Sir GEORGE TURNER: We will take your word for it,
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Mr. GORDON: This writer summarises the law with regard to rivers flowing in or between two or more
countries. In the abstract, he says it river is the property of the country through which it flows, although the
boundaries of it belong to both. He proceeds to show that this strict law is in violation of natural justice,
and that conventions made in Europe, and now recognised as the public law of the world, have restored that
natural right to its proper position. He speaks, you will see, both of the use and the navigation of rivers then
he goes on:
So far as European rivers go it was provided as early as 1814 and 1815 by the treaties of Paris and Vienna:
(1) That the navigation of rivers bordering on or passing through several States should be free to their
mouths. (2) That, subject to this freedom of navigation, States might exercise rights of sovereignty over
rivers traversing their territories, but storehouses and stations for transhipment were not to be established,
nor were those already in existence to be preserved, except so far as they was of use for navigation or
commerce. (3) That navigation dues should be independent of the quality and nature of goods transported,
and should not exceed the maximum fixed in June, 1815. (4) That the police regulations relating to
navigation should be uniform and should not be changed by one State without the consent of others.
Sir WILLIAM ZEAL: The Darling does not go through one State.
Mr. REID: The waters of the Murray do.
20
Mr. GORDON: The waters of the Murray are fed by those of the Darling and Murrumbidgee, and they
all flow into the sea in South Australia.
END QUOTE
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QUOTE Mr. BARTON:
The Committee for Constitutional Machinery omitted that clause, and they omitted also that clause which
provided that the States might make laws at any time to decide the tenure of office and the method of
appointment of their Governor. The Constitutional Committee were of opinion that that clause might
well be left out, as it was a clause to some extent at any rate interfering with the States, although it
interfered with them in the direction of giving them greater freedom in the appointment of their Governors.
END QUOTE
QUOTE Mr. FITZGERALD:
Amongst men of common-sense we know what this invitation amounts to, and the manner in which it
will be availed of let us go to the Imperial Parliament for any change in the method of the
appointment of governors. If the will of the people preponderates in favour of a change, the
Parliament of England will not object. Let us not, however, excite party feeling; but let us continue in
the path which has brought us happiness, and which has not interfered with the freedom of the
people of the colonies.
END QUOTE
QUOTE Mr. CARRUTHERS:
We have at present the greatest expert of the British Empire, Colonel Home, engaged in reporting on some
system of irrigation, and, notwithstanding all the objections that may be put to me, I say it will be a distinct
boon to Australia-federated or not-if the supply of water in the Darling can be used by those occupying the
land. There will be just as full benefit derived from that as would be derived if the water were left in the
river. Again, if hon. members study the geography of New South Wales they will see that we have a
number of lakes which are fed by the overflow of the Darling. If we choose to shut off the openings of
these lakes we can diminish the supply of water in the Darling to such an extent as to render it only
navigable for half the period that it is now navigable. A federal law may, by preventing the flow of water
into these lakes during flood time, cause a greater flow for navigation purposes, but if we could enclose the
entrance to these lakes a large area of country could be watered so as to carry half as many sheep again and
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produce half as much wool again as it does now. There is another instance on the Lachlan, where we
constructed the Willandra weir. What was the result? In a district where it had been almost impossible to
carry stock to any extent, without going to great expense in conserving water, we dammed the water back
for 100 miles, and there has since been a permanent supply of water, and the country carries twice as many
sheep as it did before. Increased settlement and increased production on those lands will benefit South
Australia, because a great proportion of the traffic will go through the colony. Hon. members may think the
amendment will, to some extent, minimise the difficulty, but it minimises the difficulty to this extent-that it
concentrates the full force and effect of the sub-section on New South Wales; instead of having the right
to interfere with the rivers of Tasmania and West Australia, it will confine the right to the rivers and
their tributaries in Now South Wales, right to our Far North; to our New England waterways-the
Namoi, the Gwydir, and the McIntyre-and all those rivers where the dams are absolutely essential to
the settlement of the country. Federal legislation might be passed prohibiting any interference with the
natural flow of the waters. This is a very far-reaching section, which, if passed, will in the future threaten
the best interests of the great colony of New South Wales. What does Mr. Gordon, with his [start page 805]
double-barrelled amendment, propose? Not to have legislation merely to protect the people lower down the
river Murray; but it is within the cognisance of this Committee that the hon. member has proposed that the
Federal Government should undertake the work of cutting a deep water channel at the Murray mouth, so
that large ships may come in and out of the Murray with freedom, and that if the Federal Parliament does
not do this, authority may be given to the local Government to do it He knows that if the channel is cut,
the water will flow away much more freely than before, and so be of no benefit to the settlers on the river,
but all this is to be done for the benefit of the colony of South Australia only, so that traffic may flow
through its territory. So far as Australia is concerned, the old-world law with regard to waterways will
never apply. Our rivers were never meant to be roadways for traffic, but to run through this continent to
supply our drought-stricken country with water and irrigation, without which we cannot hope to see it
carrying a teeming population, with pastoral and agricultural industries flourishing.
END QUOTE
QUOTE
That annulment of laws is substituted for the power of Parliament to annul these laws, because it is thought,
if these laws do derogate from freedom of trade or commerce, it might just as well be expressly stated that
they are not worth the paper they are written on. Then occurs the provision that the Parliament may
make laws constituting an Inter-State Commission. The members of this Commission are for the
purpose of executing and maintaining the Constitution in respect of its provisions relating to trade
and commerce upon railways within the Commonwealth, and upon rivers flowing in or between two
or more States. It is provided that the members of the Commission shall have a fairly secure tenure of
office, in order that they may be non-political, and not subject to dictation. They are to hold office
during good behaviour, they can only be removed by a vote of both Houses of Parliament during the
same session, and they are to hold their appointments from the Governor-General and Executive.
Their remuneration is to be determined by Parliament, and, as in the case of a judge, their salaries are not to
be subjected to decrease during their continuance of office.
END QUOTE
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QUOTE
Mr. HIGGINS.-I beg to moveThat the following be sub-section (31):-
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To secure the navigability of all waters so far as in fact navigable which, in the course of their flow or
after joining other waters, touch more than one state.
Sir GEORGE TURNER (Victoria).-I do not know whether my honorable friend (Mr. Higgins) has the
right view of this or whether I have. I think we are both of the opinion that we ought to provide for
irrigation; but the wording of this amendment is a direct instruction to the Federal Parliament to secure the
navigability of all waters so far as in fact navigable which, in the course of their flow or after joining other
waters, touch more than one state. That, to my mind, will shut out irrigation entirely.
Mr. HIGGINS.-No.
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Sir GEORGE TURNER.-Surely my honorable friend must misconceive it, with all due deference to his
better knowledge and better judgment than mine. It simply says to the Federal Parliament-"It is your duty to
secure the navigability of these rivers at all hazards or at all costs, and the expense of irrigation is not to be
taken into consideration. If I read this amendment correctly I must vote against it, unless my honorable
friend can show me that I have misconstrued his meaning.
Mr. KINGSTON.-It is not a direction or a duty, but a power.
Sir GEORGE TURNER.-Surely power implies a duty.
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Mr. BARTON (New South Wales).-One broad reason which influences me in voting against the
amendment is that it, like so many others which have been suggested, makes a difference between certain
rivers and the other rivers of the Commonwealth. I hold the distinct opinion that whether we leave the
Constitution to the operation of sub-section (1), or whether we do any-thing by way of stronger definitionand I am afraid that strong definitions too often amount to limitations-we should make no difference
between the navigable waters of one state and those of another.
Mr. HIGGINS.-My amendment refers to all navigable waters touching more than one state
15
Mr. ISAACS.-That will not include the Darling.

Mr. HIGGINS.-It would include the Darling, but not the Yarra.
Mr. BARTON.-The Commonwealth control of navigation should include control over the navigation of
the Yarra, the Tamar, the Derwent, the Swan, and every river in the Commonwealth which is in fact
navigable.
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Mr. DOBSON.-Not unless its waters touch more than one state.
Mr. BARTON.-During recent debates we have heard a great deal about federalism, but we never heard
that it was [start page 538] federalism to prescribe in one part of the Constitution that trade and intercourse
should be absolutely free, while in another part of the Constitution power is not taken to secure that
freedom.
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Mr. DOBSON.-That is hardly a fair way of putting it. What have we to do with rivers that do not touch
more than one state?
Mr. BARTON.-We prescribe in the Constitution that trade and intercourse shall be free; we also give the
Commonwealth power to regulate trade and commerce. By the combined effect of these two provisions,
and by further words, if necessary, we wish to obtain that the authority of the Commonwealth shall be
paramount in securing proper and effective intercourse, whether internal or external.
Mr. DOBSON.-Yes, between state and state.
Mr. BARTON.-Not merely between state and state. If a ship sails from Sydney for the Swan River, or
from some port in Victoria for the Derwent or Tamar, is that not commerce between state and state?
Sir EDWARD BRADDON.-Is it not the river that flows from state to state that we want to regulate?
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Mr. BARTON.-No, that is an exploded idea, which has been created by the continuous way in which
the minds of some honorable members have been sedulously directed to the belief that the only river
traffic worth troubling about is that in which New South Wales is concerned. A great many
honorable members have been led to forget that inter-state commerce is not comprehended in the
navigation of the Murray and of the Darling, that it of necessity includes the navigation of all rivers
that are navigable, and which under a reasonable interpretation of the trade and commerce subsection can be kept navigable. The difficulty which has arisen, and which I quite anticipated, has
arisen from the fact that we have been discussing the question of the Murray and the Darling at such
great length that we have really left all other rivers out of account. I am sure that every honorable
member will see that whatever power we give over the navigability of one river we must give over the
navigability of another.
Mr. ISAACS.-My amendment proposed to include them all.
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Mr. BARTON.-So far as the first portion of it is concerned the honorable and learned member took the
statesmanlike position of proposing to deal equally with all the rivers of the Commonwealth. With regard to
the trade and commerce sub-section I have been quite at one with him; we have been at difference only as
to the best means to effect our ends. But I want honorable members to recognise that we must not make fish
of one and fowl of another. We have no business to prescribe certain regulations for rivers which flow
through or between two or more states. What we have to deal with is the river system, not of New
South Wales or of Western Australia, but of the whole Commonwealth. The only federal view to take
of the question is to let the power of controlling the navigation of rivers extend to every navigable river in
the Commonwealth. If a ship goes out of a harbor, and is bound to a river, or if she goes out of a river, and
is bound to a harbor, it matters not, the control of that river is essential to the complete federal control of the
navigation. Without labouring the matter, I have only to say that I object to any differentiation between the
rivers of one part of the Commonwealth and those of another part of the Commonwealth. When we deal
with the rivers, we must make a uniform law applicable to them all, and as we are not now making that
law, but only giving power to enact it, we must make that power as comprehensive as the equity of the case
demands, and as wide as the limits of the whole Commonwealth
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Sir EDWARD BRADDON (Tasmania).-It is with something approaching to awe that I venture to differ
from the construction placed upon the amendment by the [start page 539] leader of the Convention. The
honorable and learned member is a lawyer, and a very astute one. I am a simple layman, who, when he
reads the English language, outside of certain Acts of Parliament, puts a reasonable construction upon what
he reads.
10
Mr. BARTON.-Is not that claiming infallibility?
25
Sir EDWARD BRADDON.-I do not claim infallibility; I have read the proposed amendment, as I
think any average schoolboy and a good many adults would read it. The amendment is to secure the
navigability of all waters so far as they are in fact navigable which, in the course of their flow or after
joining other waters, touch more than one state. How can my honorable and learned friend contend that a
vessel leaving Adelaide for the Tamar sails its course over the waters of a river which join with the waters
of the port from which the vessel comes?
Mr. BARTON.-My right honorable friend must have misunderstood me. I never committed myself to
any ridiculous nonsense of the kind.
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Sir EDWARD BRADDON.-I understood the honorable and learned member to say that the Tamar, the
Derwent, and the Swan were three rivers over which, according to the amendment, federal control would be
given.
Mr. BARTON.-Will the right honorable member allow me to explain what I said? I objected to the
amendment because it dealt with rivers which, in the course of their flow, touched more than one state. My
objection was that it was not material whether a river flowed entirely through one state or not, for if we
gave the power to regulate trade and commerce, and with it navigation, that power should be so large as to
extend to the control of the navigation of every river within the Commonwealth so far as it was navigable.
Therefore, the clause imposed a limitation with which I did not agree.
Sir EDWARD BRADDON.-I am glad that the leader of the Convention did not make such a
monstrous statement as I understood him to make.
Mr. ISAACS (Victoria).-I quite agree with the leader of the Convention with regard to this matter, and I
am not disposed to criticise the amendment from a merely verbal stand-point. I agree also with Sir George
Turner that the radical defect in the amendment is that it places navigability not only in the first rank, but
refers to it as the only consideration. It is, under this amendment, the primary duty of the Federal
Parliament to look after the navigability of these rivers, and to disregard every other consideration. I utterly
disagree with that view; and I think from the wording of the amendment-I am not going to make any verbal
criticism, because in my view no alteration would amend it-that the Darling would not be included, because
the amendment is confined to waters which in the course of their flow do, after joining other waters, touch
more than one state. Now, the waters of the Darling would not come under this provision until they touched
more than one state. Suppose, however, you alter the word "waters" to "river," when does the River Darling
ever touch more than one state? Never. The Murray does after the Darling joins it, but after the junction is
effected the Darling has its existence obliterated.
Mr. BARTON.-Might not the Darling touch more than one state after joining with the Murray?
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Mr. ISAACS.-Would any one say that it is the Darling River after the junction with the Murray?
Mr. BARTON.-But the intention of the amendment is to say that the Darling is a river after the junction.
Mr. ISAACS.-The water of the Darling joins the water of the Murray. If you use the word "river" you
never get lower than the junction of the Darling and the Murray, and if you use the word "waters" you
never get higher than that. Honorable members will see that you are simply between Scylla and Charvbdis.
[start page 540]
Mr. HIGGINS.-The idea is plain enough; it is merely a matter of drafting.
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Mr. ISAACS.-I am pointing out that the amendment does not make the matter plain by any means, but I
am also pointing out that it is giving the go-by altogether to irrigation, and has this further cardinal defect,
that it does eliminate, by embracing one class of rivers, and therefore excluding another from the federal
control, rivers which ought to be under federal control for the purposes of inter-state commerce, and which
are inseparable from inter-state commerce. I think we should put in words which will make it clear that that
control ought to be adhered to. I do not know any better words than those of the first part of the amendment
which I suggested, which embrace all such rivers and exclude all other rivers.
Mr. HIGGINS (Victoria).-I should like to reply to the criticisms which have been made upon my
amendment, but I will do so very briefly. The leader of the Convention says that if this control is to be
given in regard to any waters it should be given with regard to all navigable rivers, even with regard to the
Snowy River, the Darling, the Tamar, and the Yarra. I join issue with the honorable member. I do not
think we should give to the Federal Parliament the control over the Derwent, the Tamar, the Swan
River, the Yarra, or the Brisbane River. These are purely state concerns. More than that, under the
United States Constitution there is no such power given. I have a passage here which makes it clear that
under the United States Constitution there is a power which we have often had referred to during the last
few days-to regulate trade and commerce. Now, Story, in his work on the Constitution of the United States,
says thatIt is not doubted that it extends to the regulation of navigation, and to the coasting trade and fisheries,
within as well as without any state, wherever it is connected with the commerce or intercourse with any
other state, or with foreign nations. But it does not extend to the navigation of a river wholly within one
state, separated from tide water by an impassable fall, and not forming part of any continuous track of
commerce between states, or with a foreign country.
Mr. BARTON.-Does not the case of Daniel Ball settle the matter?
Mr. HIGGINS.-That case refers to the ebb and flow, I think.
Mr. BARTON.-It denies that ebb and flow is an essential.
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Mr. HIGGINS.-I do not intend to detain the committee with a discussion upon this matter now, but I
think the point is clear from Story; and I deny, as a matter of expediency, that it is desirable to intrust the
Federal Parliament with the control of the Tamar, the Derwent, the Swan River, the Yarra, orMr. HOWE.-Or the Styx.
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Mr. HIGGINS.-Quite so. Sir George Turner says that this amendment stops irrigation. It does not. It
simply leaves irrigation as it was, but subject to such paramount laws as the Federal Parliament may
enact for the purpose of securing navigation. I admit that this amendment is not the one that I should
have liked to have. I have already indicated what I should have. liked, and eighteen members of the
Convention have voted for it. But this amendment does say that the Federal Parliament shall secure
the navigability of all inter-state rivers. That is all I wish to do here. Mr. Isaacs has said that this
amendment puts navigability in the first rank. I admit that he is right; it does. I will be as frank with the
committee as I can. I should have liked to leave the whole question to the Federal Parliament to say
whether irrigation or navigation should be in the first rank. But if we come to the question of what is right
between states, I do think that all that South Australia could fairly claim would be that navigability should
be kept up to such a degree as nature has allowed navigability. But that is all. South Australia cannot claim
more than that. [start page 541] If she achieves the result of having maintained such navigability as
nature gave the Darling and the Murray when their waters come to South Australia, she will be able
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to make use of those waters for irrigation or for any other purpose which will not interfere with the
use of the waters above.
Mr. BARTON.-You mean to keep, not make, them navigable? You do not want to extend navigability?
10
Mr. HIGGINS.-All I say is that if South Australia and New South Wales were in the position of private
owners, with the Murray flowing through their land New South Wales, as the owner higher up the
stream, must not diminish the flow of the water so far as to affect the degree of navigability which the
river possesses at certain times. Apply that to the states, and say that the Federal Parliament may make
such enactments as may keep navigable this river so far as nature has given it a navigable quality. If for this
purpose there is need to clear away an obstruction the Federal Parliament can do it. If there is only need to
declare an Act of the state Parliament a trespass the Federal Court will do it. I will therefore press this
proposal, and I think honorable members will see that it is reasonable that there should be at least this
power.
END QUOTE
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QUOTE
Clause 49.-The Senate and the House of Representatives may each of them from time to time adopt
standing rules and orders as to the following matters:
20
I. The orderly conduct of the business of the Senate and the House of Representatives respectively:
II. The mode in which the Senate and the House of Representatives shall confer, correspond, and
communicate with each other relative to votes or proposed laws:
III. The manner in which notices of proposed laws, resolutions, and other business intended to be submitted
to the Senate and the House of Representatives respectively may be published for general information:
25
IV. The manner in which proposed laws are to be introduced, passed, numbered, and intituled:
V. The proper presentation of any proposed laws passed by the Senate and the House of Representatives
to the Governor-General for his assent: and
VI. The conduct of all business and proceedings of the Senate and the House of Representatives severally
and collectively.
30
Mr. WISE: It will be necessary to make an addition here to give full effect to section 8. By section 8 the
two Houses have full power to define the privileges, immunities, and powers of the Senate and House of
Representatives. In section 49 to give effect to that there ought to be a clause to this effect:
Maintain, regulate, and exercise their respective powers, privileges, and immunities.
Mr. BARTON: We have considered that, and I do not think it necessary.
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Sir JOSEPH ABBOTT: The clause as it now stands clearly limits the Federal Parliament in the matters
therein mentioned. The Constitution of New South Wales limits the power of that Parliament to pass
standing orders best adapted to the ordinary conduct of the Council and Assembly respectively. On a recent
occasion a member was addressing the Chamber, and a person in the gallery began throwing stones at him
on the floor of the House. The gentleman addressing the chair was a labor member, and he was reproving
another person for having thrown stones at the labor party.
Mr. BARTON: That is a little nearer here than New South Wales.
Sir JOSEPH ABBOTT: And a person in the gallery immediately said, "You want a stone at your head,"
and he thereupon threw two stones into the Assembly. It struck meMr. PEACOCK: What, the stones struck you?
45
Sir JOSEPH ABBOTT: No; they did not strike me. But it struck me as I sat there presiding over that
Assembly as an extraordinary thing that the Parliament there could not punish the person guilty of such an
outrage. We had to hand him over to the police, and he was brought up at the Police Court and fined twenty
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shillings. It weakens the power and it weakens the influence of Parliament that it cannot control disorder
within its own doors and within its own boundaries, and if we accept these six provisions we limit the
power of Parliament to make standing orders for the purposes indicated there. Under the eighth section of
the Bill hon. members will see:
10
The privileges, immunities, and powers of the Senate and of the House of Representatives respectively, and
of the Committees and the members thereof respectively, shall be such as are from time to time declared by
the Parliament, and until declared shall be those of the Commons House of Parliament of the United
Kingdom, and of the Committees and members thereof respectively, at the establishment of the
Commonwealth.
But viewing this forty-ninth clause in its restricted form, it appears to me that if we attempt to pass
Standing Orders we can only pass Standing Orders in accordance with that section. I therefore move:
That all the words after "as" in line 4 be omitted to the end of the clause in line 21, with a view of the
insertion of the words "as they or each may deem to be necessary, and all such rules and orders shall have
the force of law."
15
Perhaps it might be as well to put in [start page 757] what is put in the other constitutions of colonies,
namely:
Upon being assented to by the Governor. Mr. BARTON: I do not like that.
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Sir JOSEPH ABBOTT: I am not particular about that, but I think at all events the Federal Parliament
ought to have power to make its own standing orders for the purpose of preventing disorder. When I say
this I do not suppose the Commonwealth Parliament would attempt to exercise control with regard to
people out of its own doors. But within our own dominion we ought to be absolute. If we summon a
witness in any of our local Parliaments to the bar of the House, he can decline to give evidence, laugh at us,
and walk away. The case I have just mentioned shows the necessity of Parliament having control over any
disorder.
Mr. TRENWITH: Anything to stop them throwing stones at labor members.
Sir JOSEPH ABBOTT: In Victoria they took the matter in a wholesale manner, and passed an Act of
Parliament declaring that the Victorian Legislature had all the powers, privileges, and immunities of the
House of Commons. There was no mincing of matters there, and it was in consequence of the Parliament
of Victoria having arrested a man, and it having been decided that they had no power to do so, that
they immediately declared they had all of the powers of the House of Commons. The man, I think, was
connected with Goldsbrough's Company, and named Glass. He did something, and the Parliament
arrested him, brought him to the bar of the House, and it was declared that they had no power to do
so. In all the decisions of the Privy Council in reference to the powers of Parliament, the Privy
Council has invariably declared that Parliament has no power outside the very words of the
Constitution Act. In the own of Hampton and Fenton, I think, in Tasmania they had the audacity to
tell a great colony like Tasmania that so far as it was concerned it had no greater powers than a
municipality.
Mr. BARTON: The Speaker only had the power of a chairman of a public meeting.
40
Mr. DOUGLAS: Regarding the case alluded to by the hon. member, I happened to be present when the
decision was given. The Privy Council did not declare that the colony had no power, but that any
colonial Government, being under a Statute, would have no power beyond that Statute. The result was
that the Tasmanian Parliament passed a law giving the powers to which the hon. member has made
reference.
45
Sir EDWARD BRADDON: I think that the amendment which the hon. member has proposed must be
considered in connection with clause 8, page 4 of the Bill, which provides:
50
The privileges, immunities, and powers of the Senate and of the House of Representatives respectively, and
of the Committees and the members thereof respectively, shall be such as are from time to time declared by
Kingdom, and of the Committees and the members thereof respectively, at the establishment of the
Commonwealth.
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If the hon. member's amendment is to include the power of punishment it will scarcely be necessary. The
effect of the decision of the Privy Council to which my hon. friend has alluded must be read in connection
with the Constitutions of the several colonies, which were affected at the time of the pronouncement of
these decisions. In New South Wales, and I think in Tasmania, what exists at the present time is a
Legislature as distinct from a Parliament. A Sovereign Parliament has punishing power. A Legislature
which is created by Act of Parliament, and with the equivalent powers conferred upon it, as they are
conferred by section 8, has, in the case of New South Wales and Tasmania, no power except such as can be
gathered from the necessary implication of the words of the Constitution. In the present instance we have
passed a clause which states that the [start page 758] privileges, immunities, and powers of the Federal
Parliament shall be those declared by the Parliament, and until a declaratory Act is passed the privileges,
immunities, and powers of the House of Commons will be accepted. The power of punishment exists in the
House of Commons, and the same power would exist in the Parliament of the Commonwealth under clause
8. An outrage committed within the walls of the Federal Parliament could be punished in the same way as
in the House of Commons. If a man ventured to throw a stone into the Imperial Parliament, though
unfortunately the thrower is not always caught, it would be contempt of Parliament, and that would be a
matter to be dealt with by the Commons according to the powers, privileges, and immunities it possesses.
Sir GEORGE TURNER: Has not the House of Commons power to make Standing Orders?
Mr. BARTON: Yes.
Sir GEORGE TURNER: Then where is the necessity for this clause?
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Mr. BARTON: The necessity for it does not arise out of the powers of the Standing Orders, which are
merely regulations for the conduct of the business within the House, but out of the power of punishment in
cases where contempt is exercised by persons within the walls of Parliament. If, for instance, a person
throws a stone and the Sergeant-at-Arms can catch him he can be brought before the Parliament and can be
imprisoned or dealt with otherwise for contempt. Under the operation of the clause similar action can be
taken by the Federal Parliament, and that goes far enough. It does not require Standing Orders to deal with
the powers, privileges, and immunities of Parliament. They exist, and if you made Standing Orders you
would really only limit them. Under the Bill we have taken the powers, privileges, and immunities
possessed by the House of Commons.
Sir JOSEPH ABBOT: Then why do you want clause 49?
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Mr. BARTON: I have already explained that, but I will return to it if my hon. friend wishes. I say in the
meantime you have already taken the powers, privileges, and immunities of the House of Commons, and
there is no necessity to pass Standing Orders with reference to them. They do not need definition in the
Standing Orders; they are not the subject of definition in the Standing Orders; they are totally different in
their whole circuit to the Standing Orders which relate to the conduct of the business of each House and its
transactions with the other House. That is not a question of the powers, privileges, and immunities of the
House of Commons, which exist independently of the Standing Orders. They have a historical application
in the House of Commons, and they can be applied to the Federal Parliament.
Mr. TRENWITH: Could they not make Standing Orders?
40
Mr. BARTON: The Federal Parliament, of course, will have power to make Standing Orders for
the regulation of its internal business.
Mr. TRENWITH: If we adopt clause 49 do we not restrict the power of the Federal Parliament with
regard to any Standing Orders they may make?
Mr. BARTON: No. You do not restrict them because you have the clause in the most general terms. My
hon. friend wishes the clause to read:
45
The Senate and the House of Representatives may each of them from time to time adopt Standing Orders as
they or each may deem to be necessary, and such Standing Orders shall have he force of law.
That is altogether too wide, as the Standing Orders would then have the effect of law outside the House.
Mr. PEACOCK: Hear, hear. That is the point.
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Mr. BARTON: It is the point to which I think the hon. member was anxious to come. What we have
done is to adopt a clause giving the Federal Parliament power to pass Standing Orders for the con- [start
page 759] duct of their business, and so that there should be no doubt the power has been taken in the
widest possible words. The House of Commons does not make its Standing Orders by reason of its powers,
privileges, and immunities, but by virtue of its inherent powers as a sovereign Parliament. The Standing
Orders are for the internal regulation of the House of Commons, but my friend would like to say that the
Federal Houses may make Standing Orders for any matter it may deem necessary. This would have the
effect of passing laws without the royal assent. I ask my friend if the clause as it stands is not sufficient.
Mr. HIGGINS: I am strongly of the opinion that the amendment is too wide. Section 8 gives this
Parliament all the powers, privileges and immunities which the House of Commons has and members also,
and we want no more than that. Clause 49 merely makes assurance doubly sure by providing that each
House of Parliament shall make Standing Orders for the conduct of its own business, and if the amendment
be carried as proposed it means that one House of Parliament is able to make laws although the
Constitution means that both Houses must concur in making laws. If one House can make laws it will
have a very important bearing on the liberty of the subject and the liberty of the press. The words in
the amendment are:
As each of them may doom to be necessary, and such Standing Orders shall have the force of laws.
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There is no question which comes up more than that of libel, and it is important to see that one House of
Parliament shall not make any law affecting the freedom of the press in referring to the conduct of
members. Any such law ought to be framed by both Houses; but the effect of this is that one House of
Parliament is able to make laws to alter the law of libel and such matters. I think the Speaker of New South
Wales will see there is no need for this.
Sir JOSEPH ABBOTT: I do not agree with Mr. Barton, when he states that this House of Parliament will
have inherent powers. The Privy Council has frequently declared that colonial Parliaments have no
inherent powers whatever. They only have the powers given to them by the Constitution Act. I think
that with clause 8 there is no need for clause 49.
Mr. PEACOCK: They have not a clause like clause 8 in their Constitution.
30
Sir JOSEPH ABBOTT: Then where is the necessity for clause 49? Mr. Higgins says all kinds of
things might be done with regard to the press. I have such a regard and love for the press that I
cannot realise that Parliament would do anything to injure that great body. But the hon. member
forgets that the eighth clause gives Parliament power to do what it likes with the press.
Mr. HIGGINS: But both Houses.
Sir JOSEPH ABBOTT: No. Clause 8, which has been passed, provides that the:
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Privileges, immunities, and powers of the Senate and of the House of Representatives respectively, and of
the Committees and the members thereof respectively, shall be such as are from time to time declared by
Kingdom.
No one knows what the powers of the House of Commons are. It is a fact that within the last thirty years
they have given up the practice of summoning to the bar members of the press for matters of libel.
The hon. member who is so anxious and careful about the pressMr. HIGGINS: And the outside public.
Sir JOSEPH ABBOTT: I ask the hon. member who is in charge of the Bill whether there is any
necessity for clause 49, having regard to clause 48. I am anxious that the powers of Parliament should be
limited to within its walls.
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Mr. GLYNN: Undoubtedly the effect of the amendment would be to deal with the outside public-that
power which does [start page 760] not exist in the House of Commons. In Stockdale v. Hansard it was
held that the courts of law were not precluded by a resolution of the House of Commons from
inquiring into the legality of the act complained of, and in delivering judgment in the Court of
Queen's Bench, Patterson (Justice) drew a distinction between powers -especially the power of
invading "the rights of others"-and privilege. These powers are matters of common law in England, and
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are liable to be restrained by the Court. Under the proposed amendment, the House of Representatives
could pass a resolution that would have the force of law to an extent denied to be a similar resolution in the
House of Commons.
Sir JOSEPH ABBOTT: In deference to the opinion expressed on the other side, I am prepared to
withdraw my amendment.
Leave given.
Clause as read agreed to.
END QUOTE
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QUOTE
49 Privileges etc. of Houses
The powers, privileges, and immunities of the Senate and of the
House of Representatives, and of the members and the committees
of each House, shall be such as are declared by the Parliament, and
until declared shall be those of the Commons House of Parliament
of the United Kingdom, and of its members and committees, at the
establishment of the Commonwealth.
50 Rules and orders
Each House of the Parliament may make rules and orders with
respect to:
(i) the mode in which its powers, privileges, and immunities
may be exercised and upheld;
(ii) the order and conduct of its business and proceedings either
separately or jointly with the other House.
END QUOTE
QUOTE
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Mr. OCONNOR.-Will the honorable member explain what is the meaning of the words "derogating from
freedom of trade and commerce"?
Dr. QUICK.-It would prevent the placing of any obstruction in the way of river navigation or railway
carriage. It would prevent anything in the nature of [start page 1258] a rate which would derogate from the
freedom of trade between two colonies-which would take away from the freedom of trade. Therefore, I
would suggest that if this clause is to be pushed forward tonight, it should be amended by inserting the
words which are contained in the original clause.
END QUOTE
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55
Hansard 12-2-18900 UNION OF THE COLONIES Debates

QUOTE
Mr. W. McMILLAN
Surely, in the case of these Australian Colonies, each possessing within itself, as it does, not only a seacoast, but one touching the broad oceans of the world, and so far having the great advantage for which
countries like Germany and Russia are at the present time fighting so hard, namely, a means of getting out
to the high seas, it is absolutely necessary that if we have a Federal Parliament it should not be a mongrel
Parliament, but a sovereign body which would be respectfully recognised by every independant state, and
which would have within itself such freedom of action and such power that no other country on the face the
globe would be able to override it
END QUOTE
QUOTE Sir JOHN HALL.
It is said that history repeats itself, and we shall, I feel confident, have another instance of it. In the
Northern Hemisphere the old Empire has shown to the world how it is possible to combine the greatest
amount of individual freedom and liberty with most absolute security for life, property, and order; and I
believe it will be our great glory that in the Southern Hemisphere, and in these Southern Seas, we shall
repeat the lesson which the dear old mother country has taught the North, and that this great Australian
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Dominion will prove a centre of liberty, civilization, and light throughout the length and breadth of the
Pacific.
END QUOTE
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QUOTE
Mr. BARTON.-Yes, that would be the only difference, and the question is whether it is worth while to
make it operate in that way, because it may be taken that there is in the Constitution, without the latter part
of clause 95, an implication that any law or regulation of commerce or revenue having the effect of
derogating [start page 1261] from freedom of trade or commerce between the states shall be null and void.
END QUOTE
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QUOTE Sir HENRY PARKES.
I have confidence that that policy will gain strength in the next appeal to the people, and I tell this
Conference that, whether we federate or not, I shall not abate one jot of my efforts to promote the noble
policy of freedom for the exertions of civilized men. I only mention my determination, as a citizen of New
South Wales, to still promote our own policy, first, that there may be no misunderstanding in the matter,
and, secondly, to show the genuineness of my professions.
END QUOTE
QUOTE Sir HENRY PARKES
We are told that we shall be overwhelmed in the Federal Parliament by those who favour the opposite
policy. Even if that fact could be demonstrated to me, it would in no [start page 89] way turn my course in
seeking to build up in these colonies a Federal Dominion. I would still vote for the same policy; and,
though the first wave of Parliamentary authority might be against it, I should have no less confidence in its
ultimate triumph believing as I do that it is based on principles which are eternal-the principles of justice, of
freedom, and of human brotherhood-of the ultimate ascendancy of which I have no fear. That in no way
intimidates me, or qualifies my desire to enter into a Federal Government
END QUOTE
QUOTE
Mr. DIBBS:
I object, in connection with the independent state of New South Wales-a state as independent as any in the
world, even England itself, so far as the freedom of our position is concerned-to the word "province."
There may be something more dignified in the use of the word "state." We are not going to become
provinces. I do not think we are going to give up the individual rights and liberties which we possess,
and which those who have gone before us have fought for, to become mere provinces under a federal
form of government. We may take the more dignified form of "states." Whilst we have endeavoured to
put before the people of New South Wales, in these resolutions, a sort of opiate, something assuring to their
minds that in joining a federal union we give up nothing of our territorial rights, words have been inserted
in them which I shall do my utmost in Committee to strike outexcept in respect to such surrenders as may be agreed upon as necessary and incidental to the power and
authority of the national federal government.
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I do not know the meaning of these words, and no hon. gentleman who has yet spoken has given any clear
interpretation of them. It is sufficient for us, in enunciating a principle upon which the basis of a
constitution shall be prepared, to see that the territorial rights and privileges of each colony shall be
preserved to each state but when you come to consider the condition of a surrender, and the question
of the power of enforcing such surrender is placed in the hands of the federal government, then your
provinces or your states will be no party to the proceeding.
END QUOTE
QUOTE Mr. DEAKIN (Victoria).The record of these debates may fairly be expected to be widely read, and the observations to which I
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END QUOTE
.
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QUOTE Mr. BARTON:
We ought to leave it open to this extent, that while we agree upon essentials, and express ourselves fully
and freely upon all our views, still, so far as our views are not negatived by any principle here laid down,
their embodiment in any resolution may stand over for Select Committee and afterwards [start page 20] for
Committee of the whole House, when they may be debated with the freest publicity and fullest freedom. I
believe we shall by this process best arrive at conclusions; not that, as many of us would like. we shall be
able to drive our own particular views to an issue at once, but we shall discuss all these matters, both
constitutionally and otherwise, and then we may arrive at views which, though contrary to our present
opinions, shall essentially represent the views of those who sent us here to deal with the problems we
have to discuss.
END QUOTE
.
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QUOTE Mr. BARTON:
The remainder, namely, Resolution 2, expresses the chief powers and functions which ought to be
granted to the federated people, in order to secure the complete freedom with which it is proposed to
constitute them. The first is that there should be a Parliament, and next that the Parliament should consist
of two Houses. In support of the general way in which it was thought advisable to frame these resolutions it
may be contended that I should have left the idea of the two Houses out of the resolutions. I take it that we
are a body of gentlemen who have really considered the question, and, inasmuch as we have made
ourselves familiar with the literature on the subject, I take it there is no one here who will for one moment
imagine that any form of government by a Parliament consisting of one House, could be designated a
Federation. The individualism of the States after Federation is of as much interest to each colony as the free
exercise of national powers is essential to that aggregation of colonies which we express in the term
Federation. If the one trenches upon the other, then so far as the provinces assert their individuality
overmuch the fear is an approach to a mere loose confederation, not a true Federation. The fear on the
other hand is, if we give the power to encroach, that is, if we represent the federated people only, and
not the States in their entities, in our Federation, then day by day you will find the power to make
this encroachment will be so gladly availed of that, day by day and year by year, the body called the
Federation will more nearly approach the unified or "unitarian" system of government. We cannot
adopt any form of government the tendency of which will be, as time goes on, to turn the Constitution
towards unification on the one hand, and towards a loose confederacy on the other. (Hear, hear.) We
must observe that principle. or else we do not observe the charge laid upon us by the Enabling Act, which
lays on us the duty to frame a "Federal" Constitution under the Crown.
END QUOTE
QUOTE
45
[start page 1012]

Mr. GLYNN (South Australia)[8.33]: Before the Committee proceeds to consider the amendment which
has been suggested by the Legislative Assembly of New South Wales, I would suggest that we make an
alteration in the first portion of the clause by adding words to the effect that these disqualifications shall
operate until the federal parliament otherwise provides.
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The Hon. E. BARTON: Does the hon. member contemplate the federal parliament making provision
exempting a man who has taken the oath of allegiance to a foreign power?
Mr. GLYNN: This provision is really temporary. It is to cover the gap between the adoption of the
constitution and the passing of special legislation by the federal parliament. I would ask hon. members also
to consider the effect of sub-clauses II and III. For instance, the meaning of the term "bankrupt" itself may
change. It may be very different twenty years hence from what it now is. Then there is the word "felony."
As Sir Samuel Griffith has pointed out, the meaning of the word "felony" is changing considerably. In some
colonies felony is comparatively a light offence; in other colonies it is a heavy offence. In New Zealand
felony is practically unknown to the federal law. Changes similar to that which have taken place in New
Zealand in regard to the meaning of the word may take place in other colonies, and if you leave the clause
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as it stands you will put it in the power of the states parliaments to either extend or diminish the
qualification by making a change in the meaning of "felony." I say that this is a matter for the federal
parliament, and that it ought not to be fixed perpetually in the constitution. Again, as regards the
construction of the clause itself, I would draw the attention of the Drafting Committee to another matter.
The hon. member, Mr. Barton, has referred to the taking of an oath or declaration of allegiance. The first
part of the clause, it will be seen, does not read with the latter part of it. For instance, it says, "Any person
who has taken an oath or made a declaration or acknowledgment of allegiance, obedience, or adherence to a
foreign power." The clause then goes on to say that the person shall be incapable of being chosen or sitting
as a member of the senate or of the house of representatives until the disability is removed. But, once a
man takes an oath of this kind, you cannot remove the disability because a thing is done. The
amendment required is purely a drafting amendment. The way in which the matter should be put would be,
until the removal of the disqualification caused by the taking of the oath. That is the evident intent of the
clause; but the wording of the clause is altogether different. I think this is a matter that ought to be left to
the federal parliament, and I think that the words I suggest should be adopted.
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The HON. E. BARTON (New South Wales)[8.36]: I am unable to see that it would be a good thing to
limit this clause in the way suggested by my hon. friend, Mr. Glynn, who has said that this is a matter that
should be left to the federal parliament. This happens to be just one of those matters which are included in
the constitution of every one of the colonies. All the colonial constitutions provide for such matters as
these, and it is perhaps right that they should provide for them, for even in the first parliament it would be
rather a strange thing to find persons who had taken oaths of allegiance to foreign powers, who were
undischarged bankrupts or insolvents, or who had been recently attainted of crime, or convicted of felony
or infamous crime. Unless you have provisions of this kind, it is quite possible that somebody might take a
violent affection for a gaol-bird, and put him into parliament. We do not want that sort of thing. It is one
thing not to put limita- [start page 1013] tions on the ordinary freedom of the citizens of the
commonwealth. It is another thing to provide against the defilement of parliament; and this would be the
case as regards the 3rd sub-clause, whilst in the case of the 2nd sub-clause it would be the admission into
parliament of persons who had not purged themselves of certain disabilities, while in the case of the first
subclause it would be the entry of persons into parliament whose very conditions would suggest that their
interests were quite different from those of the citizens of the country. Persons who have taken the oath
of allegiance to a foreign power are not to be classed in the same category as citizens of the country
for the purpose of joining in legislation.
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An HON. MEMBER: And not to be trusted?

The Hon. E. BARTON: Not to be trusted, prima facie!
Mr. GLYNN: That is not one of my points!
35
The Hon. E. BARTON: If the definition of a point is a thing of no magnitude, it is not a point because it is
larger. These limitations having been put in all constitutions of the Australian colonies, and having worked
well, and prevented the entry of undesirable persons into parliament, they may well be continued in the
constitution we are now framing. They are not limitations of the freedom of the electors. It is scarcely to
be supposed that, except by inadvertence or accident, the electors would vote for such a person; but it is
quite possible that the electors of the commonwealth, not knowing that certain persons had taken the oath
of allegiance to a foreign power or had become attainted of some crime, or become bankrupt or insolvent-it
is quite on the cards that such persons would stand for election for the commonwealth parliament, and the
electors might choose them, not knowing who they were. That is not at all an improbable supposition. Such
a thing has happened, and it is a kind of thing which the electors are to be protected against, because it is a
state of things the electors themselves could not provide against. They might be taken in warily; they might
be caught in a trap. This is not merely a case of preserving the freedom of the electors, but of preventing
them from being imposed upon by persons who otherwise might creep into parliament, perhaps, in some
cases, persons who were insidious enemies of the commonwealth, and in other cases persons who had been
attainted of crime, or who were under other conditions of which they should rid themselves before they
offered themselves for election to any legislative assembly. I submit that on the whole it is very desirable to
avoid making the alteration suggested by the hon. member, Mr. Glynn; and while I am speaking, I think I
might say that, although it is far less objectionable, it would be desirable also not to accept the amendment
that has been suggested by the Legislative Assembly of this colony.
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END QUOTE
.

QUOTE
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Mr. WISE.-You cannot impose exceptional treatment upon the citizens of another state; that applies
to everything.
END QUOTE
.
10

QUOTE Mr. OCONNOR (New South Wales).Surely every person who has the suffrage-the right to vote within the Commonwealth-and who lives
within the Commonwealth, is a citizen of the Commonwealth, and entitled to all its privileges, including
the right to take part as the Commonwealth provides in the framing of the laws.
END QUOTE
.
15
QUOTE Mr. CARRUTHERS (New South Wales).It does not require a majority of the states to insist that the constitution shall be obeyed, because a
majority of the states cannot by resolution infringe the constitution.
END QUOTE
.
20
Hence, any purported COAG (Council of Australian Government) decisions such as regarding
anti terrorist laws neither can be held applicable to undermine the constitutional rights enshrined
in the Constitution.
.
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QUOTE Mr. BARTON:
I believe that, with certain alterations in the financial provisions, that Bill is a measure under which the
colonies could even now safely federate. Not that I say it is the best Bill that could be framed; but I do
believe it is a well-devised and well-drawn Constitution, and a Constitution [start page 11] under which a
free people-making such amendments from time to time as necessity will require, and the powers
given by the Constitution will allow-might live in perfect freedom and with perfect security.
END QUOTE
QUOTE
Mr. DEAKIN (Victoria).-The position of my honorable and learned friend (Mr. [start page 2092] Higgins)
may be perfectly correct. It may be that without any special provision the practice of the High Court, when
declaring an Act ultra vires, would be that such a declaration applied only to the part which trespassed
beyond the limits of the Constitution. If that were so, it would be a general principle applicable to the
interpretation of the whole of the Constitution.
END QUOTE
.
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QUOTE
Mr. GORDON.-Well, I think not. I am sure that if the honorable member applies his mind to the subject he
will see it is not abstruse. If a statute of either the Federal or the states Parliament be taken into court
the court is bound to give an interpretation according to the strict hyper-refinements of the law. It may
be a good law passed by "the sovereign will of the people," although that latter phrase is a common one which
I do not care much about. The court may say-"It is a good law, but as it technically infringes on the
Constitution we will have to wipe it out." As I have said, the proposal I support retains some remnant of
parliamentary sovereignty, leaving it to the will of Parliament on either side to attack each other's laws.
END QUOTE
Sir GEORGE GREY: I wish to answer the last hon. member, who has made a very interesting speech,
but who, I think, has misunderstood the subject in part. In point of fact, what I am aiming at is this: I
believe that in the old constitutions, and in some of the new constitutions, a machinery has been set up
which virtually takes all liberty from the people, or at any rate takes a very great amount of liberty from the
people. We are told that in Western Australia they have the power of altering their own Constitution. But
they can do that only with the consent of a council nominated for six years. That is no liberty at all to the
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people. I believe that in this colony there is a nominated upper house and plural voting. There is, probably,
plural voting to a great extent in Western Australia. It will take, perhaps, a term of many years to work off
those burdens which are imposed upon the people-a term of very many years I should think-whereas at the
moment when you are framing a new constitution, seeing that in every federal constitution certain
provisions are made for the government of the states, I ask that a similar provision should be made for the
government of the states here. I deny that, as an hon. member said, this is any interference with state
constitutions by this body. That is an absolute misunderstanding of the case. What we propose is to
authorise the people of the states, if they are dissatisfied with their form of government, to alter it. We have
been entirely misunderstood on that subject. This Convention is not asked to exercise the smallest
interference; but surely, at the moment when you say you are about to confer great benefits on all [start
page 494] Australasia, it is not too much to say to those people who may feel that they are suffering under a
form of constitution which is not liberal, and does not give fair play to the intellect and the energies of all
its inhabitants, that if the great majority of the people of the state choose to interfere with their constitution
and give themselves a more liberal one, they shall have the power to do so. I deny that I have proposed any
interference at all, or that I have asked hon. members of this assembly to do anything which they ought not
to do. On the contrary, I have besought them not to interfere with the powers of the general legislature or
with the powers of the states in the manner I saw they were disposed to do, but to leave them absolute
liberty. I say that, at this time of giving freedom to all Australia, we should tell the people of the states
that if they please to alter their form of state government they may do it themselves, without any
reference to the British Parliament-without any reference to the British Crown necessarily-but
entirely of their own free will make such alterations as they believe will lead to their happiness.
END QUOTE
.
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QUOTE
Mr. BARTON.-They do not require to get authority from home, for this reason: That the local
Constitutions empower the colonies separately to make laws for the peace, order, and good government
of the community, and that is without restriction, except such small restrictions as are imposed by the
Constitutions themselves, and, of course, the necessary restriction that they can only legislate for their
own territory. The position with regard to this Constitution is that it has no legislative power, except
that which is actually given to it in express terms or which is necessary or incidental to a power given.
END QUOTE
QUOTE
END QUOTE
.
Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian
Convention)
QUOTE
Mr. HOLDER.-A measure would be valid while it was a Bill, and invalid when it became a law.
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Mr. ISAACS.-That is a very terse and correct way of putting it, and it proves the absurdity of the provision.
We are, in my opinion, making the Senate too strong a body. To allow these matters to be carried into the
Supreme Court is to say that the Senate cannot protect itself, and that the states cannot protect themselves.
Surely that is not to be thought of for a moment. We want a people's Constitution, not a lawyers'
Constitution. We shall be making the Supreme Court, not the master, but the tyrant of the Constitution, by
inserting a clause of this kind. I do strongly appeal to my honorable friends to alter the clause in some way.
My view is that we should put in the word "proposed." At all events, we should do something in this
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direction, and we should at least make a distinct provision that if a Bill does not comply with this clause, the
invalidity should go no further than the additional matter. That could be worked out no doubt in an
Appropriation Bill, but you could not work it out in a Taxation Bill, because where two subjects were
dealt with you could not tell which was the additional matter. You might make such a provision with
regard to the additional matter in Appropriation Bills. The court could then say that certain items were
not for the annual services of the year. They would be invalid, and the remainder of the Bill would be valid,
but that would lead to the difficulty of the court having to determine what were the ordinary annual services
of the year.
Mr. BARTON.-Are not the annual services the annual expenditure proper to the public service?
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Mr. ISAACS.-Supposing that some compensation were being paid to a discharged public servant.
That would not come within the ordinary annual services.[start page 2003] It would not be proper to the
public service of the Commonwealth. It would not be a payment for services rendered in the future, but for
services in the past. We all know that in connexion with the ordinary annual Appropriation Bills
questions arise that make it very difficult to say what is and what is not an ordinary annual service.
END QUOTE
.
your office for having provided me with a 13 September 2010 response (in regard of my 31
August 2010 correspondence to you regarding the unconstitutional State land taxes:
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QUOTE
CMU10-16940
13 September 2010
Yours sincerely
David Swain
END QUOTE
.
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I received on 8-3-2011 a response dated 2-3-2011 from Barry Collier MP Parliamentary

Secretary Assisting the Treasurer on behalf of the Treasurer he responded.
Section 107 he refers to is very clear that for example Income Tax albeit was a Colonial and
later State legislative power the moment the Commonwealth legislated upon Income Tax then
the power became an exclusive Commonwealth power and the States had to retire from this.
Once it became an exclusive power then the constitution doesnt permit it to return to become a
concurrent power, as I have set out in past correspondence. The legislative powers on the
particular field is forever an exclusive power of the Commonwealth!
In regard of the State Land Taxes the same applies. Once the Commonwealth commenced to
legislate as to Land taxes then it became by this an exclusive legislative power and as such the
State no longer had concurrent legislative powers on Land taxes matters.
The States were created out of the former colonies and as s.106 of the (federal) constitution
makes clear subject to this constitution and this clearly provides in s51 for concurrent
legislative powers to become exclusive Commonwealth legislative powers. It is not relevant if
the Commonwealth, as like with the 1952 abolition land taxes were to abolish income tax
because it would still remain an exclusive Commonwealth legislative power. As for s5 of the
Constitution Act 1992 (NSW) it cannot override any Commonwealth exclusive powers and as it
clearly is subject to the Commonwealth constitution it therefore cannot be perceived it somehow
gives legislative powers no longer permissible by the Commonwealth Constitution to be
exercisable by a state.
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Critical might be the claim:

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QUOTE
Land taxes were imposed by the States prior to federation. They were introduced at the federal level in 1910.
In 1952, the Commonwealth Government abolished land tax. This did not have the effect of preventing the
States from imposing land tax, but rather returned taxation powers back to them. Accordingly, the NSW
Government introduced the land Management Act in 1956.
END QUOTE
Obviously, contrary to what was claimed by Barry Collier MP the Commonwealth Government
has no constitutional powers to abolish any legislation as it being the Executive it can refuse to
enforce legislative provisions but cannot abolish an act of Parliament. As such it is the
Commonwealth Parliament that can only abolish legislation.
What may be noted is the wording but rather returned taxation powers back to them as
such this is a concession that in fact since 1910 land taxes were an exclusive Commonwealth
legislative power. The question then is how does one return a legislative power to any State,
not just NSW, where the Constitution never provided for this? Clearly Barry Collier MP didnt
clarifyy within what constitutional powers, if any, a reversal of legislative power could eventuate
and quite frankly the Framers of the Constitution made clear that once a legislative power was a
Commonwealth legislative power then this was the end of the States dealing with the subject.
.
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QUOTE
END QUOTE
.
40

QUOTE Mr. GORDON.The court may say-"It is a good law, but as it technically infringes on
the Constitution we will have to wipe it out."
END QUOTE
.
45

QUOTE Mr. ISAACS (Victoria).-
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In the next sub-section it is provided that all taxation shall be uniform throughout the Commonwealth.
An income tax or a property tax raised under any federal law must be uniform "throughout the
END QUOTE
.

QUOTE
Mr. MCMILLAN: I think the reading of the sub-section is clear.
The reductions may be on a sliding scale, but they must always be uniform.
END QUOTE
And
QUOTE
Sir GEORGE TURNER: No. In imposing uniform duties of Customs it should not be necessary for the
Federal Parliament to make them commence at a certain amount at once. We have pretty heavy duties in
Victoria, and if the uniform tariff largely reduces them at once it may do serious injury to the colony. The
Federal Parliament will have power to fix the uniform tariff, and if any reductions made are on a
sliding scale great injury will be avoided.
END QUOTE
.

QUOTE Mr. BARTON.But it is a fair corollary to the provision for dealing with the revenue for the first five years after the
imposition of uniform duties of customs, and further reflection has led me to the conclusion that, on the
whole, it will be a useful and beneficial provision.
END QUOTE
And
QUOTE Mr. BARTON.On the other hand, the power of the Commonwealth to impose duties of customs and of excise such as it may
determine, which insures that these duties of customs and excise would represent something like the average
opinion of the Commonwealth-that power, and the provision that bounties are to be uniform throughout
the Commonwealth, might, I am willing to concede, be found to work with some hardship upon the states
for some years, unless their own rights to give bounties were to some extent preserved.
END QUOTE
QUOTE Sir SAMUEL GRIFFITH:
2. Customs and excise and bounties, but so that duties of customs and excise and bounties shall be uniform
throughout the commonwealth, and that no tax or duty shall be imposed on any goods exported from one
state to another;
END QUOTE
QUOTE The CHAIRMAN.Taxation; but so that all taxation shall he uniform throughout the Commonwealth, and that no tax or duty
shall be imposed on any goods passing from one state to another.
END QUOTE
.
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QUOTE
Mr. BARTON.-I am saying now that I do not think there is any necessity for clause 95 in its present form.
What I am saying however, is that it should be made certain that in the same way as you provide that the
Tariff or any taxation imposed shall be uniform throughout the Commonwealth, so it should be
provided with reference to trade and commerce that it shall be uniform and equal, so that the
Commonwealth shall not give preference to any state or part of a state. Inasmuch as we provide that all
taxation, whether it be customs or excise duties, or direct taxation, must be uniform, and inasmuch as
we follow the United States Constitution in that particular-in the very same way I argue that we should
protect the trade and commerce sub-section by not doing anything which will limit its effect. That is the real
logical position.
END QUOTE
.
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END QUOTE
.
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It should be clear that a UNIFORM law under the Commonwealth cannot somehow revert
back to a non-uniform law merely because of the States desiring to pursue their own kind of land
taxation. As such, on this basis also the State land taxes are floored (and so also any Territorial
land taxes).
.
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QUOTE
Mr. ISAACS.-The court would not consider whether it was an oversight or not. They would take the
law and ask whether it complied with the Constitution. If it did not, they would say that it was invalid.
They would not go into the question of what was in the minds of the Members of Parliament when the law
was passed. That would be a political question which it would be impossible for the court to determine.
END QUOTE
.
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As I previously indicated the Commonwealth could have allowed the States to collect under its
authority land taxes but it still would have to be uniform through the Commonwealth and as such
all States and Territories (quasi States) would be bound to have the same land taxes application
and not different rates. This then would clearly be a waste of exercise as why allow different
States/Territories to collect taxes when one federal office can do the same?
The issue then is of the Commonwealth somehow could enact legislation to retrospective provide
for legislation for the States/Territories to have collected land taxes on its behalf. Again, the first
hurdle is that retrospective legislation would be invalid where so to say it makes the conduct of a
honest man to be a criminal conduct. Further, where the States raised different levels of land
taxes then it cannot be uniform. One couldnt accept that a person of one State having paid less
then in another State now suddenly was to pay more by some kind of retrospective legislation
and neither that some who paid more now were going to receive a refund of any land taxes paid
above that of other States. After all commercial entities are based upon overhead cost, including
land taxes, etc, and as such a business enterprise might be determined where the lowest taxation
is available. Changing the system after the contracts are already in operation would make a
mockery of the reliability of State provisions.
I have indicated for years that what is needed is an OFFICE-OF-THE-GUARDIAN which
would advise the government, the parliament, the people and the Courts as to constitutional
meanings and application as a constitutional council. This is what is missing in Australia and as
result we have sport stars and singers and whatever elected to the parliament and basically no one
understands let alone comprehend the meaning and application of the constitutions.
.
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It is obviously of concern to me that it took a massive 6 month period (from 31 August 2010 till
2 March 2011) to present this kind of response that doesnt appear to me to indicate to be any
well researched response.
.
Obviously I will pass on the 2-3-2011 response and my reply to those concerned with the issue.
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QUOTE
Mr. FITZGERALD:
Another case I understood the hon. member, Sir George Grey, to put was that be favoured the
appointment of the governor-general of the future dominion of Australia being a colonial
appointment. But as long as this country is united to the Crown of England-and I hope that it is a
very long day off indeed when it shall cease to be so-I maintain that the governor-general of the
future dominion of Australia must be the appointee of her Majesty the Queen, our sovereign, who is
the apex of that structure, and whose name we revere and respect in this colony equally as in any
other [start page 165] part of her Majesty's dominions.
END QUOTE
The governor-general must be the representative of the Queen by direct appointment from her
Majesty, and that being the case, the government will be carried on in federated Australia in the way
usually adopted now in the different colonies.
END QUOTE
The governor-general must be the representative of the Queen by direct appointment from her
Majesty, and that being the case, the government will be carried on in federated Australia in the way
usually adopted now in the different colonies.
END QUOTE
.
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.

.

.
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END QUOTE 6-9-2011correspondence to the Victorian Government
QUOTE Melbourne CBD landlords reeling from council land tax rises
Melbourne CBD landlords reeling from council land tax rises
From Jim
I wonder how much more extortion and "screwing" Melbourne's CBD retail property owners will endure
before they revolt against the greedy corrupt Melbourne city council's unconstitutional land tax scam? The
landlords will naturally pass this added tax burden onto their tenants who in turn will pass it onto their
customers through higher prices, fees and charges for their products and services.
Jim
CBD landlords reeling from tax rises
March 13, 2013
Chris Vedelago
CBD retail landlords are being hit with land tax increases of up to 1400 per cent, with critics alleging that the
city council has ''grossly'' over-estimated commercial land values in the city's core.
A Swanston Street retail building owner has had a tax bill rise from $4600 to $68,900 after a council
assessment found his property had more than tripled in value in just two years, according to a survey by
agency Kliger Wood.
''The valuations are just outrageous. You can't get a doubling or tripling of values in such a short time,''
an owner of several CBD buildings told BusinessDay. ''Paying those kinds of rates are going to affect the
ability of people to run their buildings.''
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City councils have valuations every two years, with the State Revenue Office using the assessment to
calculate what investors will pay in land tax over the following two years. The 2013 bills based on valuations
conducted in 2012 were sent out earlier this year.
''For some owners the increase will be unbelievably high - or even seem crazy,'' said Kliger Wooddirector
Barry Novy, whose firm controls one of the largest commercial rental portfolios in the metropolitan area.
Kliger Wood found site-value assessments generally rose between 30 per cent and 100 per cent in the
prime retail precincts of the CBD and Southbank. As a result, land tax bills rose 80 per cent to 250 per
cent.
''The system is out of order. It will become too expensive for people to hold properties and it will force
people to sell or redevelop,'' Mr Novy said.
Industry operators argue that the sharp rise in land values is difficult to reconcile with CBD retailing's
recent ''difficult'' conditions.
Grant Jackson of valuation firm m3property said there had been no significant change in planning or
use in these retail areas that could account for the rise in land values since the 2010 assessment period.
''There could be some serious flow-on effects to the value of an overall asset. The land tax is coming
straight off the net return of the property and these properties are bought on their net return,'' Mr
Jackson said. ''They can't just slug the tenant with a large rental increase if the tenant can't afford it.''
The tax rise is expected to cause a surge in objections to the SRO, which have been rising since the
2008 financial crisis. Objections spiked 65 per cent in financial year 2011-12, which was before the
latest assessments were issued.
''From 2008 to 2010 was a very tough time and a lot of property owners were shocked not to see their
underlying land value drop, given the difficulties of the market. To see those increases in a relatively
difficult market environment since 2010 is very surprising,'' Mr Jackson said.
Melbourne City Council said valuations were based on current rents and sale prices.
http://www.theage.com.au/business/cbd-landlords-reeling-from-tax-rises-20130312-2fyev.html
END QUOTE Melbourne CBD landlords reeling from council land tax rises
QUOTE
Mr. BARTON: That will absorb nine delegates in each delegation, three for each of these, and the Prime
Minister of each colony represented be an ex officio member of each Committee.
END QUOTE
And
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QUOTE Mr. BARTON:
The third contains conditions without which Federation would be impossible. The Federal Parliament should
have the exclusive power to impose and collect Customs duties. Clearly we could not have border duties. We
should have free intercourse by sea, as well as by land, between one colony and another. We have had it
argued outside this place that other forms of revenue than Customs should be given up to the Federation.
Some persons have argued that the land should be the basis of taxation. I should protest seriously
against such a surrender as that. The idea of locality as an inherent essential of the individualism of each
province altogether precludes such an idea. The land itself must be left sacred to each colony just in the
same way as its external boundaries are. Other means of revenue have been suggested, such as direct
taxation. Perhaps the idea of locality is least to be discerned in the method of the collection of Customs
duties. But it is inherent in duties to be imposed by way of land taxation. This matter, some of us think,
should be left for the purposes of local government, and others have never gone further than to suppose that it
should be left to the purposes of provincial government. Still, that form of taxation, as a primary source of
revenue, ought to be [start page 21] chosen which is least imbued with the idea of localism, and that is to be
found in federal Customs duties and the abolition of duties between the States.
END QUOTE
QUOTE 23-6-2014 Email re land tax
LAND TAX Acts
Alan Riley What is really going on here below?
http://www.austlii.edu.au/au/legis/cth/num_act/ltaa1951281951241/ LAND TAX ASSESSMENT. No. 28 of
1951. An Act to amend the Land Tax Assessment Act 1910-1950. [Assen
To Me
Today at 4:16 PM 23-6-2014
What is really going on here below?
60
http://www.austlii.edu.au/au/legis/cth/num_act/ltaa1951281951241/
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LAND TAX ASSESSMENT.
No. 28 of 1951.
An Act to amend the Land Tax Assessment
Act 1910-1950.
[Assented to 16th November, 1951.]

2. This Act shall be deemed to have come into operation on the first day of July, One thousand nine hundred
and fifty-one. [was there a Royal Assent or even a Proclamation?]
LAND TAX ASSESSMENT. No. 23 of 1952.
10
An Act to amend the Land Tax Assessment Act 1910-1951.

[Assented to 12th June, 1952.]
1.-(1.) This Act may be cited as the Land Tax Assessment Act 1952.
(2.) The Land Tax Assessment Act 1910-1951* is in this Act referred to as the Principal Act.
(3.) The Principal Act, as amended by this Act, may be cited as the Land Tax Assessment Act 1910-1952.
15
2. This Act shall come into operation on the day on which it receives the Royal Assent.
LAND TAX ABOLITION. No. 2 of 1953.
An Act to repeal the Acts of the Parliament relating to Land Tax, and for purposes connected therewith.
[Assented to 4th March, 1953.]
20
[Date of commencement, 1st April, 1953.]

1. This Act may be cited as the Land Tax Abolition Act 1953.
2.-(1.) The Acts specified in the First Schedule to this Act are repealed.
(2.) The Acts specified in the first column of the Second Schedule to this Act are amended as respectively
specified in the second column of that Schedule.
25
(3.) For all purposes in relation to land tax for any financial year before the financial year that commenced on
the first day of July, One thousand nine hundred and fifty-two, the Acts referred to in the last two preceding
sub-sections, and any regulations under any of those Acts, continue to have effect as if this Act had not been
passed.
(4.) In any Act or regulations having effect by virtue of the last preceding sub-section-
30
(a) references to the Commissioner of Land Tax shall be read as references to the Commissioner of Taxation
holding office under the Taxation Administration Act 1953;
(5.) A person is not entitled to payment of any salary, fee or allowance by reason of the operation of this
section.
35
THE SCHEDULES.
FIRST SCHEDULE.
ACTS REPEALED.
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10
15
20
25
Land Tax Act 1910

Land Tax Act 1914
Land Tax Act 1922
Land Tax Act 1927
Land Tax Act 1938
Land Tax Act 1940
Land Tax Act 1941
Land Tax Act 1952
Land Tax Assessment Act 1910
Land Tax Assessment Act (No. 2) 1930
Land Tax Abolition Act 1952 [?]
END QUOTE 23-6-2014 Email re land tax
From the above it shows

QUOTE
30
35
(3.) For all purposes in relation to land tax for any financial year before the financial year that commenced on
the first day of July, One thousand nine hundred and fifty-two, the Acts referred to in the last two preceding
sub-sections, and any regulations under any of those Acts, continue to have effect as if this Act had not been
passed.
END QUOTE
It can therefore not be stated that the Land Tax Act and regulations in its entirety was abolished
as clearly that was never the intention of the Federal Parliament.
40
45
50
55
I am not aware any court ever considered matters as I have exposed, and the fact that the High
Court in Australia in University of Wollongong v Mohamed Naguib Fawzi Ahmed Metwally &
others [1984] HCA 74; (1984) 158 CLR 447 (22 November 1984) claimed that the
Commonwealth could allow the States to legislate while it also legislated is not constitutionally
viable. Constitutionally the Commonwealth cannot allow for states to legislated while it legislate
itself on a subject matter. Consider that the Commonwealth were to legislate as to land taxes and
then somehow permitted the States to do so likewise and the States then delegate legislative
powers to the municipal/shire councils to also raise land taxes by way of rates. The
Commonwealth by permitting (hypothetically) states to legislate on land taxes while it does so
itself would mean it violated uniform taxation. Even if it didnt apply land taxation it still
cannot permit a state to raise land taxes by the Commonwealth authority as it still would be in
conflict with :uniform taxation. It would otherwise an easy way out for the Commonwealth to
undermine constitutional prohibitions. Also makes an utter mesh as to what taxation is defrauded
without ending up in the State/Commonwealth Consolidated Revenue Funds.
Neither can the Commonwealth accept any reference of legislative powers within s51(xxxvii), as
this subsection merely provides for the States to refer legislative powers but cannot include nor
does it that the Commonwealth can then accept such reference of legislative powers. To give a
clear example, S116 prohibits the Commonwealth to legislate as to religion. The States however
are permitted to legislate as to religion. If the states were to refer legislative powers about
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15
20
25
30
35
40
45
82
religion to the Commonwealth within s51(xxxvii) then the Commonwealth by s116 is clearly
prohibited from accepting this. Therefore, any reference of legislative powers referred to in
ss51(xxxvii) is limited to what the constitution itself would allow for. And there is a lot more to
this all but in this writing I shall not delve into it any further. Sav e to say we I view need a
VELVET REVOLUTION as to get back to the true meaning and application of the
constitution.
QUOTE
Mr. CARRUTHERS:
This is a Constitution which the unlettered people of the community ought to be able to understand.
END QUOTE
QUOTE Mr. ISAACS.We want a people's Constitution, not a lawyers' Constitution.
END QUOTE
Judges therefore should interpret the constitution through the eyes of unlettered people
and not what they may fancy to introduce of other jurisdictions not only totally foreign to
our kind of constitution but in blatant violation to the intentions of the Framers of the
Constitution!
The above is just some insight in the many years/decades I have pursued that all
governments act within the framework of the true meaning and application of the
constitution, however fair to state politicians couldnt give a darn because they know too
well that the legal processes alone is corrupted against citizens seeking to act as a sentry
and judges will railroad cases at times, etc. This is why I view a VELVET REVOLUTION
is the only answer and then to pursue those politicians and others who persisted in their
terrorism against citizens/rate payers and confiscate their possessions as being the proceeds
of crimes they committed against citizens/ratepayers.
We have a constitution and while it may not be perfect in some ways, depending upon once
view, nevertheless while it is in the form as it is citizens have a right and entitlement that those in
government or acting with delegated powers should adhere to. Regretfully despite the
years/decades I pursued certain issues the general ignorance is there because those in power
seems to take the view, as it appears to me, that they can get away with their fraud/rot/terrorism
and even if a court were to pronounce against them they will unlikely have any personal backlash
as in the end the taxpayers will foot the bill.
QUOTE
Mr. BARTON.- We have simply said that the guarantee of the liberalism of this Constitution is
responsible government, and that we decline to impair or to infect in any way that guarantee.
END QUOTE
Well time has arrived you either act as a sentry or get out of office before you are thrown out!
You are being paid to do your job and for once start doing it!
50
This document is not intended and neither must be perceived to refer to all details/issues.

Our name is our motto!)
(
G. H. Schorel-Hlavka O. W. B. (Friends call me Gerrit)
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20150504-G. H. Schorel-Hlavka O.W.B. To MR TONY ABBOTT PM-Re Foreign Investment Tax Really A Land Tax Prohibited by The Land Tax Abolition Act 1952 Section 3

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1

as a CONSTITUTIONALIST I ask; Where the Hell are you?

subsequent financial year.

Commonwealth of Australia Constitution Act 1900 (UK)

Hansard 14-4-1897 Constitution Convention Debates

QUOTE 25-3-2005 CORRESPONDENCE

Mr Kim Beezley, Leader of Her Majesty (Federal) Opposition, Kim.Beazley.MP@aph.gov.au

In my 27-2-2006 correspondence to John Howard I then wrote:

QUOTE 27-2-2006 CORRESPONDENCE

More than 10 years later the same remains to be applicable!

Hansard 27-1-1898 Constitution Convention Debates

Chinese investors outweighed other nationalities buying property in Australia,

END QUOTE EMAIL

Bill Shorten Bill.Shorten.MP@aph.gov.au

So let us look at Commonwealth legislation.

LAND TAX ABOLITION.

[Assented to 6th November, 1952.]

hundred and fifty-two.

subsequent financial year.

QUOTE LAND TAX ABOLITION C1952A00081

QUOTE Commonwealth of Australia Constitution Act 1900 (UK)

subsequent financial year.

Mr. GLYNN.-The first three lines of clause 52 affect that point.

Bill Shorten Bill.Shorten.MP@aph.gov.au

And I wrote to you

I will now attend to this matter.

Hansard 19-4-1897 Constitution Convention Debates

Hansard 22-2-1898 Constitution Convention Debates

Hansard 8-3-1898 Constitution Convention Debates

And we also should consider the following:

Hansard 22-9-1897 Constitution Convention Debates

Hansard 30-3-1897 Constitution Convention Debates

Hansard 30-3-1897 Constitution Convention Debates

Hansard 2-3-1898 Constitution Convention Debates

I on 19 July 2006 comprehensively defeated the Commonwealth of Australia in the County

FOREIGN AFFAIRS- EXTERNAL AFFAIRS-TREATIES

42. In Queensland v. The Commonwealth, I would declare that ss. 9 and 12 of

Hansard2-3-1898 Constitution Convention Debates;

Hansard 1-3-1898 Constitution Convention Debates

And also consider:

Hansard 17-3-1898 Constitution Convention Debates

QUOTE Sir EDWARD BRADDON.-

Hansard 2-3-1898 Constitution Convention Debates

Hansard 2-3-1898 Constitution Convention Debates;

Hansard 6-3-1891 Constitution Convention Debates

Hansard 6-3-1891 Constitution Convention Debates

Hansard 17-3-1898 Constitution Convention Debates

HANSARD 10-03-1891 Constitution Convention Debates

This is why we need the OFFICE-OF-THE-GUARDIAN (Dont forget the hyphens!), a

MAY JUSTICE ALWAYS PREVAIL

Premier Kristina Keneally

Cc: * Mr John Brumby, Premier, john.brumby@parliament.vic.gov.au

Re: State Land tax - etc

AND TO WHOM IT MAY CONCERN

Hansard 22-9-1897 Constitution Convention Debates

Hansard 30-3-1897 Constitution Convention Debates

Hansard 30-3-1897 Constitution Convention Debates

Hansard 2-3-1898 Constitution Convention Debates

As I stated in my previous correspondence also:

As a CONSTITUTIONALIST and Author of books in the INSPECTOR-RIKATI series on certain

We now look brat the provision of the CEA1918;

Commonwealth Electoral Act 1918

In any prosecution in a court of summary jurisdiction in respect of a contravention of the