Kevin Rudd PM 9-4-2010

C/o R.McClelland.MP@aph.gov.au
5 .
Cc: Tony Abbott MP
Tony.Abbott.MP@aph.gov.au
.
AND TO WHOM IT MAY CONCERN
10 .
Kevin,
as a CONSTITUTIONALIST my issue with any legal issue is the constitutional validity
of any action by the government, and likewise by the parliament. If it ain’t constitutionally
permissible then no matter the purpose it must be abandoned because the moment we allow the
15 constitution to be defied we have lost the plot and permit terrorism and dictatorship, as there will
always be those who find excuses to disregard constitutional limitations.
.
In my view the Federal Government has at hand to avoid this ongoing refugee problem but so far
failed to take appropriate action and as result is incurring a reported $80,000.00 plus cost per
20 refugee that could be better used for the sick, the elderly, etc. Before setting out the solution to
this, as I did in the past lets I now direct myself to articles such as some of the following;
.
QUOTE
http://au.news.yahoo.com/a/-/latest/7040914/govt-gets-tough-with-asylum-seekers/
25 Govt gets tough with asylum seekers

By Julian Drape, AAP April 9, 2010, 5:21 pm

The federal government has toughened its policy on asylum seekers by immediately
30 suspending the processing of all new refugee claims by Sri Lankans and Afghanis.
Immigration Minister Chris Evans on Friday denied the new regime meant asylum seekers
could be detained indefinitely on Christmas Island or in mainland detention centres.
"People aren't being denied their right to seek asylum but it's been suspended," he told
reporters in Canberra.
35 "It's humane because people will still have access to consideration of their refugee status.
"They will still be treated with dignity and treated as human beings."
The government says the new policy is a response to changing circumstances in Sri Lanka
and Afghanistan.
The United Nations High Commission for Refugees is presently reviewing conditions in
40 both countries and UN protection guidelines.
END QUOTE

QUOTE

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 http://www.heraldsun.com.au/news/national/united-nations-warns-australia-about-
indoneisan-people-smuggling/story-e6frf7l6-
1225851645243?referrer=email&source=HS_email_nl&emcmp=HS&emchn=Newsletter&
emlist=Member
5 Last Updated: April 09, 2010
Tony Abbott mocks government suspension of asylum seeker claims, saying it's a failure of
original immigration policy
END QUOTE
.
10 QUOTE
http://blogs.news.com.au/heraldsun/andrewbolt/
Rudd panics: now says boat people may be fleeing peace
Andrew Bolt – Friday, April 09, 10 (12:10 pm)
Another boat, and nearly more deaths, forces the Rudd Government to announce that these
15 poor refugees are probably not fleeing danger, after all:

All new asylum seeker claims from Sri Lanka and Afghanistan are being
suspended, as news emerges that 70 people were rescued from a sinking asylum
boat off Christmas Island early this morning.

Immigration Minister Chris Evans says the Government has decided to implement
20 the processing suspension due to “changing conditions” in both countries…

This means any new asylum seekers now arriving in Australian waters from those
two countries will not have their refugee applications processed until the
suspension is lifted.
The suspension comes as the United Nations High Commissioner for Refugees
25 reviews the international protection guidelines for both countries.

But, but, but… weren’t they fleeing ”genocide” Wasn’t this flood of boats caused by ”new
conflicts” and overseas ”push factors”?
It seems to me from this that Immigration Minister Chris Evans is now admitting the
Government lied all along in denying its policies had lured so many thousands here in
30 boats:

The changes we’re announcing today send a strong message to people smugglers
that they cannot guarantee a visa outcome for their clients.

So it really was the guaranteed visa outcome that people smugglers were advertising that
drew so many boats here? Then why didn’t Rudd just say so a few dozen boats ago?
35 Liars and incompetents.
END QUOTE
.
The Framers of the Constitution well aware that International law can often be used to override
local law decided to ensure that The Commonwealth of Australia Constitution Act 1900 (UK)
40 would be as such structured that International law could not interfere with Australian law but
could be used in aid of australian law.
.
Hansard 17-4-1897 Constitution Convention Debates
QUOTE Mr. SYMON:
45 There can be no doubt as to the position taken up by Mr. Carruthers, and that many
of the rules of the common law and rules of international comity in other countries
cannot be justly applied here.
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 END QUOTE
.
HANSARD 27-1-1898 Constitution Convention Debates
QUOTE
5 Mr. OCONNOR.-The right honorable member, with all respect, is begging the question.
The real question now is, not whether the people want it, but whether the power should be
given to the Commonwealth, that is to say, the whole of the Commonwealth, to enforce
the compulsory reference of disputes in one particular state.
END QUOTE
10 .
For purpose of legislation any Commonwealth law must be for the “whole of the
Commonwealth” and for the

HANSARD 13x-1898 Constitution Convention Debates (Official Record of the Debates of

15 the National Australasian Convention)
QUOTE
Mr. ISAACS.-The Parliament has by clause 52 full power and authority to make
laws for the peace, order, and good government of the Commonwealth with respect to
a large number of matters that are set out. This is a power that is without limitation.
20 END QUOTE
.
It should be understood that while it was stated
This is a power that is without limitation.
It is within the limits of being for for the peace, order, and good government!
25 As such as long as it is within the scope of “for the peace, order, and good government” the
legislative powers is unlimited.
.
HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates of
the National Australasian Convention)
30
QUOTE Mr. DEAKIN.-
. In this Constitution, although much is written much remains unwritten,
END QUOTE
And
35 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 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
40 whom it will embrace and unite.
Mr. SYMON (South Australia).-I wish to say one word or two before we part. I do not
intend to enter into any detailed examination of, or any elaborate apology for, the
Constitution which we have been engaged in framing. But, sir, no man can remain
unmoved upon this momentous occasion. We who are assembled in this Convention are
45 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.
50 This new charter is to be given by the people of Australia to themselves.
END QUOTE
.
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 When then we have people arriving by plane or by boat we should use the same legal principles
for all of them. We cannot sent back those who come by plane while not using the same rules for
those coming by boat.
.
5 We have an obligation to ensure that people smuggling is not financially viable.
.
The sinking of Siev X on 19 October 2001 with 363 dead (including 146 children) must always
be a reminder as to the tragedy of all those who drowned.
.
10 Yet, no known (to me) prosecution ever eventuated in regard of those 363 people who died
within the Commonwealth of Australia as to hold the organisers and others who participated
legally responsible for their deaths. In my view anyone involved with the transporting of people
for unlawful means should have to face a Commonwealth criminal prosecution for causing
and/or participating in regard of any death during the voyage or subsequent to a voyage.
15 .
When some say 100 people each pay say $10,000.00 each then the people smuggler stands to
earn about $1 million and then a paltry $3,000.00 fine isn’t going to deter this person. As such a
greater emphasis must be on deterrent.
.
20 But it would be far better, as I indicated in the past, and so also in my published books in the
INSPECTOR-RIKATI® series on certain constitutional and other legal issues that the entire
refugee or unlawful arrivals is wrongly dealt with.
.
Constitutionally the Commonwealth of Australia has the legislative powers regarding
25 immigration and aliens and as such, provided it is a general power against all, can regulate
arrivals and aliens.
.
The Framers of the Constitution separated the powers as to Immigration and Aliens because
Immigration is in regard of those migrating into Australia and aliens in regard of those already in
30 Australia.
.
Because the framers of the constitution were pursuing a “white Australia” they didn’t want as
they refer to “inferior coloured races’ to flood Australia and in view that India was under British
rule and as such its inhabitants were British nationals the Framers of the constitution held that the
35 commonwealth could do a test on immigrants such as to be entitled to enter the commonwealth
of Australia.
Also after arrival to control their conduct and knowing the problems with International law the
Framers of the constitution decided to insert s.51(xxvi) regarding “inferior coloured race” or
“race” so that the Commonwealth could limit their movements, employment, etc, of each law in
40 which were to be within the Commonwealth of Australia but deemed of a race that required
special legislation. Any such special legislation then would apply to all persons of that race
regardless their position in society.
.
Whit the new rules to postpone refugee applications of Afghans and Sri Lanka’s then this can
45 only be used within S.51(xxvi) as under “special legislation” as under migration laws it would
not be applicable in that any immigration law must apply to all persons in the same manner,
regardless of their country of origin. As such a ban on all people seeking a visa or none at all!
.
As for s.51(xxvi) the problem then lies with that it can only be a legislation in regard of all
50 people of that race. Meaning that a ban cannot be only applied to Afghans arriving by boat but
must be applied to all Afghans no matter their way of entry and regardless they might be skilled
person being doctors, etc. hence the Commonwealth cannot issue visa’s to an Afghan to come by
plane while not allowing Afghans in a Commonwealth Detention Centre to obtain a visa.
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 .
There is however a much better alternative in place that would avoid any clashes in law.
.
It must be recognised that the United nations is the governing body regarding refugee issues,
5 regardless it cannot overrule thconstitutional provisions.
Now lets take an example of two persons both leaving say Afghanistan for refugee status. We
call them X and Y.
.
Mr X travels to a nearby United Nations camp in Pakistan and register, say, on 19 April 2010
10 there as a refugee. Mr Y however pays a people smuggler to take him the Commonwealth of
Australia. Mr Y arrives at Australia without a visa.
.
The Commonwealth of Australia recognising that the United Nation is the covering body about
refugees has set aside a portion of land that is as like any embassy deemed to be foreign land,
15 exclusive under the jurisdiction of the United Nations. Mr Y who arrives therefore is transported
directly to the United Nations facilities and so placed under United Nations authority. The United
nations give Mr Y the registration number commencing with the date of arrival being, say, 6 may
2010 and this means that while Mr X had his registration number commencing with 20100409
Mr Y has his registration commencing with 20100506. what this means is that Mr X will be well
20 before Mr Y up for consideration of any refugee status because the United Nations will deal with
people as to their date of registration.
As such Mr Y travelling to Australia minimised his own opportunities to be considered for
refugee status.
.
25 When a person arrives at a United Nations compound and given a registration number then the
United nations will pursue the status of this person and history to determine if this person is
considered a refugee.
Once the United Nations has considered a person to be a refugee then the United Nations request
member states to consider to accept a number of refugees. Each member State is given a copy of
30 the files relevant to each refugee and each member State then can,, if it desires to do so, do its
own investigation as to if it find a refugee suitable for acceptance or not.
.
What this means is that Mr Y even when finally approved by the United Nations as being
considered to be a genuine refugee may still end up being accepted by a country on the other side
35 of the world, being it in Siberia, or whatever. As such, this system takes away the advantage of
travelling to Australia to basically being secured to be accepted by Australia because no longer
the Commonwealth of Australia but the United nations is who conduct refugee matters initially.
.
It also means that those longest held in United Nations camps/compounds are the first to be
40 considered to be accepted. The so called que-jumping will be avoided all together because every
refugee will try to get to the nearest United Nations refugee camp/compound rather then waste
weeks or even years to travel to Australia and then having to start from the date of registration.
.
Why indeed would a person travel from Afghanistan at huge cost to Australia and then find that
45 the United Nations may cause him to be transported to another United Nations camp in say
Siberia or wherever?
.
The entire incentive to force one self’s upon Australia and to perhaps blackmail a government
such as refusing to leave a ship will be counter acted by making clear that any person who
50 refuses to leave a ship will jeopardize his own status by being later registered.
.

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 Say, that there are so many arrivals that the United Nations finds it has not sufficient places in its
Australian compound then it can transfer people to other United Nations compound wherever
located in the world or simply have them transported to their own country of heritage.
.
5 What we therefore would achieve is that any refugee or so called refugee would upon arrival in
Australian waters, etc, immediately be transported to a United Nations compound and then the
United Nations provide all the humane services required. It would then create a worldwide
United Nations compound facilities without all the different governments trying to find solutions.
.
10 Likewise those who arrived by plane and are not accepted as lawful arrivals they too can be
transported to a United Nations compound and then the United Nations can determine what is
best to do with such a person. Perhaps an island might be a perfect way to have a United Nations
compound.
.
15 We must show concern for human rights including those who arrive hear at times with huge risk
to life and limb but on the other hand we must also guard out own security and not have others
dictating us that we must accept them.
.
Fancy a person residing, in say, England seeking a visa having to wait for approval while a
20 person from a war torn country, regardless the person himself really was not in any danger, can
force himself upon the Australian government but the Englishman cannot, yet might be better
qualified for a visa.
.
Why indeed should say a widow with children waiting in a United Nations camp for year but not
25 having monies to pay a people smuggler be yet again denied entry because others who can get
money to pay a people smuggler can jump the que? We must build a system that those registered
the longest are not robbed of the right to enter merely because they peacefully waited for their
number to come up! We must reward’s those who pursue lawful entree.
Also, to avoid clashed of culture those who desire to come to Australia must first undergo a
30 course in regard of Australian customs, etc, so that we do not get people entering who for
example have the view that honour killing is acceptable because it was done it the country they
came from. As such, remove the opportunity of them dictating any government and make
compulsory that a course in English and in Australian customs is required to be passed. We now
see too often that people are practicing their own cultural ways of conduct regardless of how it is
35 in conflict with australian law and this is a major problem to the security of Australians where
the Federal government fails to compel a proper course to be followed about Australian customs,
etc. (not something who is a cricketer!)
.
In my view the Federal government must cancel its announced rules regarding Afghans and Sri
40 Lanka’s as it fails to be constitutionally valid but should place a moratorium upon all
applications while in the meantime seek to establish a United Nations compound who the can in
principle deal with all unlawful arrivals and/or persons unlawfully being in the Commonwealth
of Australia. Politically, I view, it is the most sensible solution also because any human rights
issues then is within a United Nations compound!
45 .

Awaiting your response, G. H. Schorel-Hlavka (Gerrit)

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