Constitutionalist: TO THE COURT Successfully Appealed in Both Cases Against Convictions of FAILING TO VOTE On

1
ISSUE -Senator Nick Xenophon, riparian rights, validity Senator Culleton election, etc & the constitution
As a CONSTITUTIONALIST my concern is the true meaning and application of the constitution.

Because Senator Rodney Culleton is disputing various legal issues based upon the true meaning and
application of the constitution the question immediately arises are any judges to determine his case bias as
their own judicial appointment might be in question and so their ability to be impartial and independent.
I will below quote my submission ADDRESS TO THE COURT, County Court of Victoria, Case numbers T01567737 &
Q10897630 held on 19 July 2006 where I unchallenged of any of my written submission in the ADDRESS
TO THE COURT successfully appealed in both cases against convictions of FAILING TO VOTE on
constitutional grounds. Hence by this my submissions such as what really Australian citizenship
stands for was as such conceded by all Attorney-Generals who had been served with an s78B NOTICE
OF CONSTITUTIONAL MATTERS. Therefore if judges of any court fail to be British Subjects with
a British nationality then I view they are not constitutionally qualified to be sitting as a judge of a court,
including the High Court of Australia and I view they are sitting as private citizens without invoking any
judicial powers. We have a constitution which is a British Constitution Act known as the Commonwealth
of Australia Constitution Act 1900 (UK) and s128 in part 9 of this Act cannot override in any shape or
form our British nationality and hence the High Court of Australia, as it appears to me purported to do so
in Sue v Hill simply acted beyond judicial powers. The very judges who decided Sue v Hill went against
their oath when they took up their judicial office.
Considering that Senator Rodney Culleton is currently a hot topic, in regard of the validity of his election
and knowing that the High Court of Australia as I view it took out of context what the Framers of the
Constitution stated.
Hansard 21-1-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian
Convention)
QUOTE
Sir JOHN DOWNER.-
I want to know from what point of view this can be called federal? We keep our property; we are left to the free
exercise of our brains and bodies; there is no interference with the individual; state rights are to be preserved.
Surely, collaterally with that, state rights ought to be preserved too.
END QUOTE
Hansard 17-3-1898 Constitution convention Debates
QUOTE
Mr. BARTON.-
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G. H. Schorel-Hlavka O.W.B.
INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD
A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0
Email: admin@inspector-rikati.com. For further details see also my blog at Http://www.scrib.com/InspectorRikati
2
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 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
Hansard 9-4-1891 Constitution Convention Debates
QUOTE
Dr. COCKBURN: Local freedom and government by the people are inseparable.
END QUOTE
HANSARD 1-4-1891 Constitution Convention Debates
QUOTE
Mr. HIGGINS.-
It is one of the great advantages of private persons being able to raise these points, and not the states or the
Commonwealth, that you keep the judicial bench free from the taint of political partisanship.
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END QUOTE
Well having the no jab no pay system it is clear the Federal Government is acting unconstitutional to
deny parents their certain taxation entitlement for refusing to vaccinate a children.
I read what purports to be the 20 November 2016 submission by Senator Rodney Culleton regarding his
case before the High Court of Australia. Because of the length of this PRESS RELEASE I will publish a
summary, however the entire length of this PRESS RELEASE can be downloaded from my blog:
www.scribd.com/inspectorrikati
I also expose what I view the conduct of Senator Nick Xenophon to so to say sell himself to the highest
bidder ignoring the true meaning and application of the constitution. In my view he is a Member of
Parliament who is more like a prostitute then to concern himself with acting as a sentry!
See also:
Submission- Supplement - Carbon Tax Issue - Scribd
https://www.scribd.com/document/.../Submission-Supplement-Carbon-Tax-Issue
Submission- Supplement - Carbon Tax Issue - Free download as PDF File (.pdf), ... for example the
Cocopop Tax was defeated/rejected by the Senate and then ...
[PDF]Committee Secretary 5-6-2011 Joint Committee of Public Accounts ...
www.aph.gov.au/parliamentary_business/.../house_of_representatives_committees?...
Jun 5, 2011 - ATO on 11 November 1910 and from then on land taxes had to be ..... called CocoPop tax is
and remains unconstitutional because there was a ...
QUOTE Mr. HOLDER.Surely there would be at least one representative out of the whole Senate and one member of the House of
Representatives, who would have individuality enough, and strength enough, to get up and challenge the order of
any particular measure which might be disorderly under this clause of the Constitution.
Mr. ISAACS.-They would not all sit on the same side of the House.
Mr. HOLDER.-I should think not. They would not all be Ministerialists, or all members of the Opposition, or all
members of any particular party; and I cannot believe that any Bill which contained anything objectionable at all could
pass through both Houses of the Federal Legislature without finding some one member of either of the two Houses
who would rise to a point of order, and have such a Bill laid aside of necessity as being out of order under this
provision.
END QUOTE
QUOTE
Mr. CARRUTHERS (New South Wales).-It is worth while considering the stages that a proposed law has to go through,
and the opportunity afforded to a member of either House or a member of the Executive to call attention to any
infraction or infringement of the Constitution. It does not require a majority of the members of the House of
Representatives to insist that the Constitution shall be obeyed in the matter of procedure; it only requires one solitary
member to rise to a point of order, and the Speaker has to give a legal interpretation of the rules of procedure. It only
requires one member of the Senate to call the attention of the President to the fact that a Bill is introduced contrary
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to the Constitution for that proposed law to be ruled out of order. It does not require a majority of the states to
insist that the Constitution shall be obeyed, because a majority of the states cannot by resolution infringe the
Constitution. Neither House could pass the standing order which would give the majority power to dissent from the
Speaker's or President's ruling. The standing orders only confer certain explicit power. They give no power to either
House to pass an order which would enable its members to amend the Constitution.
END QUOTE
Neither can the High Court of Australia, regardless if the Parliament permitted it, pursue the same by its
Rules and/or judgements!
Regrettably in my view the High Court of Australia appears to blatantly disregard this as in Sue v Hill,
Sykes v Cleary, etc, and by this I view acting outside its judicial powers acting as a traitor.
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 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
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states from usurping the sphere of the Commonwealth. Having provided for all these things, I think this Convention
has done well.
END QUOTE
As I understand from what purports to be the 20 November 2016 submission of Senator Rodney Culleton
he complaints about having ex parte orders issued affecting his rights without having been heard!
As shown in the full 7-12-2016 PRESS RELEASE there is no such thing as having a majority jury
decision, it must be 12 who all agree to a conviction or there be none. This is the legal principle
embedded in the Commonwealth of Australia Constitution Act 1900 (UK) and the States created within
s106 of the constitution subject to this constitution are bound by it also.
Also no Chapter III of the constitution court can hear and determine matters where it denied one party
against whom it made orders to be heard!
The notion of an Infringement Court and other courts dealing with conflicts where the accused is denied
any right to be heard clearly is a violation of his/her constitutional rights!
If we had a competent Federal Attorney-General he would have taken on any government that uses the
Perin/Infringement court system where one party (the accused) is denied to place his/her case and it be
considered before judgment is handed down
As such, what I understand Senator Rodney Culleton is about is not a mere State issue but also a federal
issue where it robs him of his constitutional rights as embedded in the constitution. In my view a
competent Attorney-General would in fact support Senator Rodney Culletons pursuit for justice
according to constitutional principles as embedded by the Framers of the constitution.
Where Senator Rodney Culleton has so to say thrown down the gauntlet then effectively all legislative
provisions such as ex parte proceedings are and remain to be ULTRA VIRES.
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
QUOTE
Mr. GLYNN.-I think they would, because it is fixed in the Constitution. There is no special court, but the general courts
would undoubtedly protect the states. What Mr. Isaacs seeks to do is to prevent the question of ultra vires arising after
a law has been passed.
[start page 2004]
Mr. ISAACS.-No. If it is ultra vires of the Constitution it would, of course, be invalid.
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END QUOTE
QUOTE
Mr. OCONNOR.-No, it would not; and, as an honorable member reminds me, there is a decision on the point. All
that is intended is that there shall be some process of law by which the parties accused must be heard.
Mr. HIGGINS.-Both sides heard.
Mr. OCONNOR.-Yes; and the process of law within that principle may be [start page 689] anything the state thinks
fit. This provision simply assures that there shall be some form by which a person accused will have an opportunity
of stating his case before being deprived of his liberty. Is not that a first principle in criminal law now? I cannot
understand any one objecting to this proposal.
END QUOTE
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
QUOTE SIR HENRY PARKES
It is an organism, as I have tried to explain, for protecting each individual citizen in the undisturbed possession of his
property, in the undisturbed possession of his liberty, and from my point of view the expense of that government
ought to be defrayed in the easiest manner and only to the extent which is necessary for that purpose, and that
taxation is unjustifiable for any other purpose whatever.
END QUOTE
Many if not most Members of Parliament may lack the competence to understand/comprehend the true
meaning and application of the constitution and basic ally vote on Bills as they are told by their leaders for
party political reasons rather than to represent in true format their constituents.
When you have a building that is slowly collapsing or have a road that continually has dangerous potholes
to make it extremely difficult to use it for its purpose that it was to perform then one would rather rebuild
it and get rid of the old.
We have the same with our parliaments and the courts, they are failing to operate to the true meaning and
application of the constitution and Members of Parliament in my view are prostituting themselves to get
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out whatever they desire as some short fix to be re-elected than to consider how they participate in
undermining the true meaning and application of the constitution.
Essentially we need to go back to the time of federation and reconsider judgments of the High Court of
Australia in line to the true meaning and application of the constitution rather than going along to the
contemporary views used by the High Court of Australia never as such in tended by the Framers of the
Constitution or indeed in contradiction/violation to the intentions of the Framers of the Constitution! We
need a better system to have judges appointed to the High Court of Australia so that they are not just
knowledgeable but can comprehend the true meaning and application of the constitution. And any judge
before being appointed as Chief Justice must be required to have a comprehensive understanding and
competence in constitutional matters. After all you cannot have judges going so to say on training wheels
to learn about the constitution when they are to provide a judgment about the true meaning and application
of the constitution. Indeed the High Court of Australia WorkChoices decision in my view is a clear
example of its gross incompetence, taking out of context what the Framers of the Constitution were
recorded in the Hansard to have stated.
QUOTE
Sir JOHN BRAY: I am very glad to hear that the committee considered the point, although I think they arrived at a
very unwise decision. The hon. gentleman who last spoke is mistaken in what I take to be the drift of all
parliaments. No parliament lives out the full term of its existence. It is always dissolved before it actually expires,
and so it would be in this [start page 645] case. The practice almost invariably is for the house to be dissolved, and a
new house elected, before the expiration of the three years, the object being that there shall always be a parliament
in existence. The intention is not that the members shall be elected for three years, but that they shall absolutely
serve for three years, and the three years ought for the sake of convenience to date from the first meeting of
parliament. At any rate, we ought to ensure that all the members shall be elected for the same term, and that one
member's time shall not expire three or four weeks before the term of another member, as might be the case under
this clause.
Sir SAMUEL GRIFFITH: No!
Sir JOHN BRAY: I think so, because the date appointed for the return of the writs is not necessarily the same in
every district.
Sir SAMUEL GRIFFITH: The clause does not say that each member shall sit for three years, but that the house shall
endure for that time!
Sir JOHN BRAY: But the house consists of members. At any rate, the operation of the clause is not very clear, and I
would ask hon. members to agree to the amendment I have proposed.
Mr. BAKER: The hon. member, Sir Samuel Griffith, says that this clause is not intended to fix the term for which
members of the house shall hold office, but to fix the duration of the house itself; but there can be no house without
members. If the writs are returned at different dates, members of parliament will hold office for different periods.
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Mr. BAKER: That is how it strikes me. If the writ of one member is returned three weeks before that of another,
the first man will be a member of parliament for three weeks longer than the other.
Mr. BARTON: The writs are appointed to be returned on the one day!
Mr. WRIXON: I must say that the amendment of the hon. member, Sir John Bray, commends itself to my mind.
Until parliament meets, and the members present themselves, you do not really know who is a member of
parliament and who is not. Up to that time a man is only returned to serve in parliament, and it may be that he will
not take the oath when he presents himself at the table, or it may be that he is disqualified, and, therefore, until the
house meets, and the members take the oath, and qualify themselves, you do not know who are members of
parliament and who are not. It seems to me, therefore, that you have one uniform date at which you know those
who really are members of parliament when you start from the first meeting of parliament. But if the day of the
return of the writs is uncertain, you will not know who are members of parliament until they are actually sworn in.
END QUOTE
QUOTE Mr. CARRUTHERS (New South Wales
The electors of the country have a right to make their choice, and if they choose to be represented by a man who is
compelled by the necessities of his life to become bankrupt or insolvent, surely it is not our business to take away
that choice from them. A man may be guilty of a misdemeanour, he may have served a sentence of two years for a
misdemeanour, he may have been guilty of some disgraceful offence, yet, under this Bill, that man can be elected.
END QUOTE
QUOTE
III. Who is attainted of treason, or convicted of felony or of any infamous crime:
shall be incapable of being chosen or of sitting as a member of the Senate or of the House of Representatives until the
disability is removed by a grant of a discharge, or the expiration or remission of the sentence, or a pardon, or release,
or otherwise.
Mr. GORDON: I should like to ask Mr. Barton whether there is anything in this point: A number of German fellow
colonists may have taken the oath of allegiance to a foreign power, especially those who have served in the ranks in
Germany. Would it not be necessary to add after "power" in line 27 the words "or who has not since been
naturalised as provided in clause 30"?
Mr. GLYNN: You cannot have two, allegiances.
Mr. BARTON: No; a man might have to go out of our Parliament to serve against us.
Sir GEORGE TURNER: He may be Minister of Defence.
Mr. CARRUTHERS: I would like to put a case to Mr. Barton. It may happen that treaties may be in force between
say England and Japan. There is a treaty almost in operation on the very lines I am citing that will give to a British
subject travelling in Japan practically the same rights and privileges as he would enjoy as a citizen of his own
country. Surely it is never intended that by a person travelling in another country, who becomes entitled to
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privileges conferred on him by a treaty between two high powers, he should be disqualified from holding a seat in
the Federal Parliament. Our members of Parliament who are hardworked take their summer trips, and it may be
that some of them may come back and find they have lost their seats as a result of this clause.
Clause as read agreed to.
END QUOTE
QUOTE
Mr. MARMION: It seems to me that there are two portions of the bill which may be affected by the proposed
amendment. In the first place, unless it is distinctly laid down in the bill that a senator, though elected, does not
become a senator until the 1st of January, there will be during that interval twelve senators instead of eight; because
there will be four who will not retire for some considerable period after the election. There is another view of the case.
A senator may be prevented for a period from holding his seat in the local house of representatives. When he is
elected to the senate, he cannot sit any longer in the state house of representatives, and if his election to the senate
takes place some time prior to the end of the year, unless it is distinctly laid down that the mere fact of his election
[start page 603] does not make him a senator, he will be obliged to retire from the local house of representatives.
Sir SAMUEL GRIFFITH: There is no doubt a little difficulty. In the cases of which we have experience, members of
parliament are elected by a constituency that may be said to be in permanent session. Here we have to deal with the
case of a constituency which is in session only sometimes. We must, therefore, deal specially with it. There cannot be
more than eight senators at a time. There will be eight senators and four senators elect; for a senator elect is not a
senator until his term begins. There is no reason why a member of the house of representatives should not be
elected to be a senator in June; next January he becomes a senator and ceases to be a member of the house of
representatives.
Amendment agreed to; clause, as amended, agreed to.
END QUOTE
QUOTE 7-12-2016 EMAIL to Senator Rodney Culleton

GERRIT
TO
RODNEY CULLETON RE
VALIDITY OF YOUR
ELECTION
From
Mr G. H. Schorel-Hlavka O.W.B.
To
Senator.Culleton@aph.gov.au
Cc
Gerrit Schorel-Hlavka O.W.B.
Reply-To
Gerrit Schorel-Hlavka O.W.B.
Date
Today 14:28
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Rodney,
In my book
INSPECTOR-RIKATI ON CITIZENSHIP
A book on CD about Australians unduly harmed.
(ISBN 0-9580569-6-X
prior to 1-1-2007) ISBN 978-0-9580569-6-0
I did set out to some extend why the Phill Cleary High Court of Australia decision was so wrong.
I view this is relevant to you as the High Court of Australia made the considerable error not to differentiate
between State and Federal issues neither that one can be a Member of a State Parliament to stand as a
candidate for a federal seat as long asd the Member of State Parliament resigns his/her State seat prior to
accepting the Federal seat if elected for it. Likewise a person who is a employed by a Stated government doesn't
need to resign his job merely to stand as a candidate for a Federal election, as it is not until the person is taking
up the seat, if elected, that he/she must resign before taking up the federal seat.
the very purpose of s44 was to prevent a Member of the Federal Parliament to have an office of profit with the
Crown in its position as the Commonwealth of Australia (other than federal Ministers) and State
employees/State Member of Parliament are not excluded to stand as a candidate again provided they resign
their positions if they desire to take up the seat elector for.
As such not until one presents one selves to take up the seat is it that one must have relinquished all and any
conflict of interest with the Commonwealth.
Likewise the same applies to bankruptcy and other criminal issues. A person who is a candidate in a federal
election is entitled to be a bankrupt or subject to a criminal conviction provided that prior of actually taking up
the seat the successful candidate is able to get rid of the bankruptcy or criminal sentence, such as having it set
aside, annulled or having finished the sentence.
As such the disqualification doesn't come to be applicable until the person present himself/herself to take up the
federal seat elector for.
In my view where you were elected you were so legitimately and as stated previously, it is only if you were still
subject "and is under sentence, or subject to be sentenced" that you can be disqualified from taking up the seat.
As such, if the sentence was less than one year (Which appears from the various reports I read to me to have
been.) then if at the time of taking up the seat was as such I cannot see any reasons why you are not
legitimately holding the seat.
As you yourself appears to have pointed out the High Court of Australia had rules violating the constitution (At
least to that effect) and I( view it is long overdue judges learn the true meaning and application of the
constitution and set aside the judgments of Sue v Hill and Sykes v Cleary as having been insufficiently
considered upon constitutional grounds.
QUOTE
Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that we are all alike subjects of the British Crown.
END QUOTE
The High Court of Australia in my view has no judicial powers to overrule the constitution as it now purported to
do, at least in my view, with Sue v Hill and Sykes v Cleary.
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I intended to publish "20161207-PRESS RELEASE Mr G. H. Schorel-Hlavka O.W.B. - ISSUE -Senator Nick
Xenophon , riparian rights,validity Senator culletonb election, etc & the constitution" which will include
this email, and other quotations and matters.
Read the many statements by the Framers of the Constitution (included in this PRESS RELEASE) and you will
find that they amalgamated various different sections to what became s44 of the constitution, being the
Commonwealth of Australia Constitution Act 1900 (UK)
Gerrit
---
MAY JUSTICE ALWAYS PREVAIL
107 Graham Road
Viewbank 3084, Victoria, Australia
Author of INSPECTOR-RIKATI books on certain constitutional and other legal issues.
THE MORAL OF A SOCIETY CAN BE MEASURED BY HOW IT PROVIDES FOR THE DISABLED
-------- Original Message -------Subject:

Date:
From:
To:
Cc:
Reply-To:
Gerrit to Rodney Culleton Further details

2016-11-22 14:05
"Mr G. H. Schorel-Hlavka O.W.B." <admin@inspector-rikati.com>
"Gerrit Schorel-Hlavka O.W.B." <admin@inspector-rikati.com>
Rodney,
I repeat my previous email and add some more details which may indicate to you that s44 is ab out serious
felony crimes not minor crimes. While any crime might be deemed an offence, I view that the key issue as
such never was intended by the Framers of the Constitution to be used for disqualification.
.
Anyhow read how they debate the issue to get the gist.
.
On 30 September 2003 I published my book INSPECTOR-RIKATI on Citizenship,

in which in Chapter 74 I did set out why Pauline Hanson was wrongly convicted.
Subsequently about 5 weeks later the Queensland Criminal Court of appeal precisely
used this argument to set aside the convictions.
In my view the tenor of the debates of then Framers of the Constitution was that when a
person made a mistake and had served his punishment then the person should be allowed
to go into Parliament.
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S44
QUOTE
(ii) is attainted of treason, or has been convicted and is under
sentence, or subject to be sentenced, for any offence
punishable under the law of the Commonwealth or of a State
by imprisonment for one year or longer; or
END QUOTE
Do keep in mind "and is under sentence, or subject to be sentenced" meaning that once the sentence
is disposed off then the person is free to enter parliament if so elected.
As such, if your sentence was completed prior to taking up the seat then I cannot see any
disqualification.
I will not now delve into other details but safe to say the disqualification in s44 applied
only when taking up the seat, as such when attending to the Parliament upon the return of
the writs and not when the election itself was held.
As the Framers of the Constitution discussed, a person might for example be declared
bankrupt but disposes of this after the election but before making the oath for the seat.
That is also why my past published books exposes why the High Court of Australia was
wrong regarding Sue v Hill and Sykes v Cleary.
QUOTE
Mr. DONALDSON: I think there is a great deal of force in the contention of the hon. gentleman. There will be
large constituencies represented in the federal parliament, and it will take a considerable time before a member
can be returned, and several more days might elapse before he could attend in his place in parliament, and
during that time very important questions might be hanging in the balance. I do not believe in any state being
practically disfranchised through not having an opportunity of returning a member in a case where be would lose
his seat through insolvency, or perhaps through treason, or through being convicted of an infamous crime. All
these disqualifications are provided for in clause 44, and I do not think there can be the slightest objection to
provide for them in this clause; in fact, I think there can be no doubt that words should be added to the clause to
provide for a case in which a man is convicted of either treason or an infamous crime. I can understand that
when a man either resigns or dies the speaker has power to issue a writ to have the vacancy filled; but I know
that in Queensland, in a case of insolvency, a vacancy once existed for some time after the meeting of the House.
It was reported to the House early in the session, of course, but before the writ was issued and returned some
three or four weeks elapsed, and I believe that a longer period than that will be required in connection with the
federal parliament. I have no strong feeling on the point, but I believe we would be acting fairly by inserting these
other provisions in the clause.
END QUOTE
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The wording or through being convicted of an infamous crime. I view refers to a serious crime and not some minor
issue! For sure taking a key could be deemed a crime but compared to rape/assault/murder it hardly rates so to say on
the criminal scale.
END QUOTE
QUOTE
Clause 46. Any person(1.) Who has taken an oath or made a declaration or acknowledgment of allegiance, obedience, or adherence to a
foreign power, or has done any act whereby he has become a subject or citizen or entitled to the rights or privileges of a
subject or a citizen of a foreign power; or
(2.) Who is an undischarged bankrupt or insolvent, or a public defaulter; or
(3.) Who is attainted of treason, or convicted of felony or of any infamous crime;
shall be incapable of being chosen or of sitting as a senator or member of the house of representatives until the
disability is removed by a grant of a discharge, or the expiration of the sentence, or a pardon, or release, or otherwise.
Sir SAMUEL GRIFFITH: I think in line 16, after the word "expiration" the words "or remission" ought to be
inserted.
Mr. WRIXON: If my hon. friend will allow me, before the amendment is put, I wish the Convention to consider
whether it is necessary to have these words at all:
until the disability is removed by a grant of a discharge or the expiration of the sentence, or a pardon, or release, or
otherwise.
It seems to me that it would be better to leave out those words and to provide that if a man is convicted of treason,
felony, or an infamous crime, he shall be disqualified.
Mr. CLARK: For ever,?
Mr. MUNRO: Yes!
Mr. WRIXON: There is a great awkwardness in saying that a man is not to be chosen until he is discharged; but in
addition to that, looking to the broad principle, if a man is convicted of one of these serious crimes, I do not think it is an
unreasonable thing to disqualify him for a position of trust which he would receive as a member of parliament. It is not
an additional penalty upon him. It is done much on the same prudential motives which would induce us not to nominate
such a man as a trustee in our private affairs.
Mr. CLARK: It is left to your own choice!
Mr. WRIXON: Here you say, on the face of your law, that a man convicted of a serious offence is disqualified until
be gets out of prison. That, I think, is a mistake, and it would be well to omit the words I have quoted.
Sir SAMUEL GRIFFITH: You mean that it should read "who has been attainted"!
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Mr. WRIXON: There is one case I admit which ought to be provided for. It is the case, and the very unusual case,
of ail innocent man who may have been convicted and afterwards pardoned. But I propose, after leaving out the
words I have quoted, to add a few words providing for that case.
Sir SAMUEL GRIFFITH: The hon. member should say "who has been attainted," otherwise the clause would be
ambiguous!
Mr. WRIXON: Certainly I would say, "who has been" instead of "who is," and then I would strike out the words I
have quoted with a view to insert these words:
Provided that nothing in this section shall apply to any person who shall receive a free pardon from the Crown.
Amendment (Mr. WRIXON) proposed:
That the word is," line 11, be omitted with a view to insert in lieu thereof the words "has been."
Sir GEORGE GREY: The proposed amendment raises a point of considerable [start page 656] importance. A
bill was sent home to the Imperial Parliament some time ago containing a clause in the form in which this
amendment would make this particular clause. On the question being argued in parliament it was decided to add
to the clause words similar to those it is now proposed to strike out. I was satisfied from the discussion which took
place upon the subject that the provision as originally drawn by me was wrong, and that all hope of reform ought
not to be cut off from a man. It is proposed, not only to give him the punishment the law has allotted to his
offence, but when he has undergone that punishment, you send him forth with a brand upon him which he can
never wipe out. There is less danger really in allowing a man who has undergone the sentence the law has
imposed, and which he was entitled to receive, to afterwards go free, and thus have a chance of reformation.
There is much less harm done to the community in that way than in condemning a man to an unknown
punishment. The judge in delivering his sentence would not take this other matter into consideration, and yet the
additional heavy penalty is inflicted on the man. He is literally sent out a pariah among his fellow-countrymen
without any hope of being restored to his former social status. By no good conduct could be relieve himself of the
result of the errors of his past life. His children would also know that their father had been guilty of a crime of
which they might not otherwise have heard, and disgrace might be brought upon a family for one or two
generations. I think it would be better to leave the clause as the British Parliament left it.
Mr. RUTLEDGE: I hope the Committee will not accept the amendment; and I hope hon. members will carefully
consider the influence which it would be likely to have. Take the case of a man who may be convicted of what may be
technically called a felony, although it might not be more than the stealing of a 5-note. He would be at once stamped as
a man belonging to a class who could not by any subsequent good conduct establish a claim to such recognition as is
implied in the possibility of election to the federal legislature. I consider, also, that we are doing an injustice to men who
may perhaps have passed all their lifetime in Australia, whose antecedents are all known. If any one of these men had
made a slip in his early youth, it would at once become known. We are thus establishing a condition of things
decidedly disadvantageous to those who have passed the whole of their lifetime under the eyes of their fellowAustralians as against a man who may come here to-morrow, and about whom no one may know anything. In
our liberality yesterday we decided to make any man who comes here from abroad, and who has fulfilled the
usual six months residence, enabling him to be registered as a voter in any one of the states, eligible for election to
the house of representatives.
Mr. CLARK: No; we agreed to a three years residence!
Mr. RUTLEDGE: I am glad to hear it; but I thought we were defeated on the point. But take the case of a man who
has been here three years, and of whose antecedents we know nothing at all. He may have been guilty of slips in his
youth in England, or in some other part of the world, of which we know nothing, and our ignorance of those slips would
render him eligible for election to the house of representatives. I do not think we ought, by a deliberate vote of this
Convention, to, establish the principle that a man who has fallen in his early life-it may be under circumstances of
temptation-can under no possible circumstances redeem himself, and render himself eligible for a position implying trust
and confidence on the part of his fellow-man. I think we ought to hesitate before we revert to a condition of [start page
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15
657] things which I am sure existed only a great many years ago, if indeed it ever existed in any portion of the British
dominions. I hope the amendment will be rejected.
Mr. MUNRO: I understood the hon. member, Sir George Grey, to lay great stress the other day upon the point that we
should raise a high standard to which our young men might aspire. I venture to say that you can have no higher standard
for our young men than the knowledge that if they are convicted of a felony they will cease to have certain civil rights
they formerly possessed.
Mr. CLARK: For a time!
Mr. MUNRO: Not only for a time, I think. An hon. member has said that this law belongs to olden times; but it is the
law of Victoria at the present moment.
Mr. DIBBS: That does not make it a good law!
Mr. MUNRO: I believe it is a good law. You are about to frame a constitution applying to a very extensive area, and
you may find that a man who has been in one of the colonies convicted of murder, and who, according to our law ought
to be hanged, has, through some particular circumstances, been ordered to receive three lashings of twenty-five lashes
each and twenty-one years in irons, going to another colony where his previous character would be unknown, and there
associating with honest men in making laws for the federation. I say it would be a disgrace to the federation if you were
to allow such a thing to take place. We know perfectly well that the result would be not to put upon crime the stamp that
ought to be put upon it. I say that the man who has broken the law of the land to such an extent as to be convicted
of a felony ought not to be allowed to make laws for a free people, and for that reason I strongly support the
amendment of my hon. friend. It would make the clause correspond to the law of Victoria at the present time. We are
very proud of that law, and we should be very sorry to see it repealed.
Mr. CLARK: The last speaker seems to think that because a certain provision is law in Victoria that is quite sufficient
reason for its embodiment in the federal constitution. But all the wisdom of the world is not concentrated in Victoria
now any more than it has been concentrated there in years gone by. There has been impressed upon the laws of the
colonies from time to time the mark of their local and social origin, and we know very well that this particular clause
was introduced into the Victorian Constitution with regard to special circumstances in the past history of Australia. I
think it would be a great pity to preserve such a record in the constitution of the commonwealth, and so revive what I am
sure all free-born Australians would rather bury and forget. I think the argument put forward by Sir George Grey is
all-sufficient to condemn the proposed amendment. It is an attempt by anticipation to affix to particular crimes a
greater punishment than the parliament of the commonwealth may, in its wisdom, affix to them. We are
attempting to tie the hands of that parliament, and to say that, in addition to whatever punishment they think
sufficient to impose for these particular crimes in the future, we will add this punishment and render it
impossible for them to alter it. The hon. member talks about this being a disgrace to the constitution. Surely it would
be a disgrace to our constitution if before hand we said that every punishment hereafter inflicted shall be intensified by
something which had no relation whatever to the particular circumstances under which the man committed the offence
The hon. member, Mr. Wrixon, himself admits that there ought to be exceptions to the particular rule laid down. He says
we should make exceptions with regard to men who receive free pardons. The hon. [start page 658] gentleman's
experience in Victoria will enable him to recall many cases where the Executive had good reason to believe that the
convicted person was innocent, but there was not sufficient evidence to justify the Executive in going through the form
of granting a free pardon, although he has been allowed to go free. Other cases have occurred where men have served
their full term, after which evidence has been discovered showing that they were innocent. The hon. member, Mr.
Munro, says that once a man is convicted he should never thereafter be allowed to associate with honest men in making
laws. Does he wish us to infer from that that we can guarantee that every man who will sit hereafter in the
parliament of the commonwealth will be absolutely free from all dishonesty?
Mr. MUNRO: Until he is convicted!
Mr. CLARK: Simply because he has not been convicted he is to be treated as a man superior to another man, who,
perhaps in his youth, twenty or thirty years before his election, has been convicted of some offence. The only way to
carry out that principle in its entirety would be to add the words "has been, or ought to have been, convicted," and to
make the speaker sole judge of the moral qualities of every candidate for parliamentary honors. We should then,
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16
certainly, be a model nation, and we should set a high standard before our young men such as no nation ever erected, or
would attempt to erect.
Dr. COCKBURN: I do not believe in eternal punishment; therefore I shall vote against the amendment. If a man were
wrongly convicted, and afterwards pardoned, this provision would exclude him.
An HON. MEMBER: No!
Dr. COCKBURN: I understood that that was intended. Take the war of-secession in America. I do not know whether
any of the seceders were convicted of treason, but they could have been, and the result, of a provision such as this would
have been the exclusion from the Congress and Senate of some of the very best men in America. Take, again, the fathers
of the United States Constitution. I think we had better leave this alone.
Mr. DIBBS: There is one thing which will easily adjust this difficulty. We must have some regard for the commonsense of the people who have to give their votes for members of parliament. It is a strong ground to take, that we should
not pass a restrictive law of this character to further punish a man who has already paid the full penalty inflicted by the
law for, perhaps, a minor offence. We should simply admonish him to "turn from his wickedness and live." We may
very well trust the electors to do what is right.
Mr. MUNRO: But the electors will not know anything about it!
Mr. DIBBS: In Victoria, of course, they would know about it. I could go to Victoria and name people who sat in
parliament and in the governments and yet who were previously convicted of treason. I could go to Queensland and find
people who have occupied seats in parliamentMr. FITZGERALD: And afterwards in the House of Commons!
Mr. DIBBS: Who were previously accused of treason.
Mr. FITZGERALD: And who were convicted!
Mr. DIBBS: I could mention instances of members of parliament there who were previously Irish rebels, who
struggled for home rule. The hon. member, Dr. Cockburn, says he does not believe in eternal punishment. I quite agree
with him, and I think that when a man has once paid his debts, either to individuals or the state, he should be
allowed to go free, and he should be regarded as having given full satisfaction. We must leave everything to the
intelligence of the electors, who will have the aid of the press, which, in New South Wales, is particularly searching in
[start page 659] its mode of action. No man will venture to seek to be a senator of the commonwealth of Australia if
there is any charge against his character, because he can rely upon the press stirring the thing up from the
bottom. Let us do what is fair and right. When a man has once paid his debts, let us say that they shall not be cast
up in his teeth. I often notice that in the criminal courts when an unfortunate wretch has been found guilty by a jury the
judge asks an officer of the court, "Has this prisoner been convicted before?" I maintain that when once a man has
served his punishment it is not right to ask such questions.
Mr. GILLIES: It is a question of habit and repute!
Mr. DIBBS: No, it is simply a question as to whether a man has been convicted previously, and the unfortunate
man probably pays twice over for some insignificant crime. I shall vote against the proposed amendment, because I
am prepared to rely upon the common-sense and intelligence of the electors, aided as they will be by a powerful, and I
was going to say, unscrupulous, but I prefer to say searching press, which will not allow any man to occupy a public
position without probing his character to the bottom.
Mr. J. FORREST: I wish to ask the hon. member, Sir Samuel Griffith, whether the last part of this clause might not
be struck out? It has a significance which I do not like. One would imagine that we are likely to have a lot of persons
attainted with treason, or guilty of felony, as members of parliament. It seems to me that the clause would be equally
as good if the words "by a grant of discharge, or the expiration of the sentence, or a pardon, or release or otherwise"
were struck out. I quite agree with the hon. member, Sir Samuel Griffith, that there is a good deal to be said on both
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17
sides of this question, and that we do not want such people to be members of parliament. But at the same time we do
not want to shut out altogether those people who may have done wrong. I feel considerable difficulty about it; but I
think the clause should be allowed to pass if the words I have referred to are struck out.
Sir SAMUEL GRIFFITH: Of course the Committee can strike out those words if it likes. But the result will be that
nobody will know exactly what the clause means. That is the only objection to it.
Question-That the word proposed to be omitted stand part of the question-put. The Committee divided:
END QUOTE
QUOTE
Mr. CARRUTHERS (New South Wales).-I desire to reply to some objections urged to the proposal made by me. I
will take the objections coming from the Hon. Mr. O'Connor, the Hon. Mr. Symon, and Sir John Downer, which have
carried great weight in the Convention. They ask why we should place politicians on a different plane from other
members of the community in regard to insolvency? Why should there be another tribunal to decide their cases? Was
ever a weaker argument used? We know that whenever any member of the legal professions barrister or a solicitorbecomes insolvent, he call go on practising his profession. It is only when in the courts of insolvency he is found guilty
of something amounting to a crime that the court will take away from him the right to pursue his occupation. Take the
case also of a tradesman. If be becomes insolvent be can carry on his business the next day. He has not to wait until he
gets his certificate of discharge. With reference to the public servants in all the colonies, although bankruptcy may cause
a suspension, their offices are kept vacant for them until they have had an opportunity of getting a certificate of
discharge. There is no other class in the community, looking at this argument and taking the reverse of it which is
penalized as members of Parliament are sought to be penalized under this Constitution. Let us look at the matter now
from the opposite standpoint. I will undertake to say that the clause as proposed will do more to undermine the honesty
of public life than would the amendment which I have suggested. We have always heard it said that the poverty of public
men was a great testimony to their honesty. Why was that? It was because these men in public life knew that they would
not be branded as criminals if they did not seek the protection of the laws designed for the poor man. But supposing that
you provide that a man shall absolutely sacrifice his public position if he becomes insolvent there will be a great
temptation to public men who are poor not to have recourse to the protection of the Insolvency and the Bankruptcy
Courts. You at once create a temptation which has never before existed in the public life of most of the colonies. Men
who fear that they are being pursued, not with the ordinary force of the law, but with an exceptional rigour, will have a
temptation presented to them, if they are weak, to adopt questionable means to save themselves from expulsion from
public life. We would not be elevating public life by inserting in the Bill a provision of this character. I should go with
Sir John Downer and Mr. Symon if they proposed that a man who had been refused his certificate of discharge should be
disqualified from holding his seat in Parliament, because the moment a certificate of discharge is refused a stamp of
dishonesty is placed upon the insolvent's business transactions, and that should be a [start page 1941] disqualification.
But here there is no provision of that character, and the clause says that a man is to be deemed guilty before he is tried.
You cannot within the 30 days, if any political opponent chooses to set the wheels in motion, get a certificate of
discharge.
Mr. TRENWITH.-If he is a good man, would not he be returned to Parliament again?
Mr. CARRUTHERS.-He would; but the Ministry might be dissolved, and the whole state of affairs politically might
be thrown into confusion. Are we to be told that three years afterwards an error, such as I have described, maybe
remedied by the man being re-elected to Parliament? That is too big a price to pay in such a matter as this. I do hope,
therefore, that the Convention will carry this proposal. If Sir John Downer and others who are wavering think that some
protection is necessary, let it be provided in another sub-section that where a man is refused a certificate of discharge he
shall be disqualified from holding his seat.
END QUOTE
Gerrit
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---
107 Graham Road
-------- Original Message -------Subject:

Date:
From:
To:
Cc:
Reply-To:
Gerrit to Rodney Culleton

2016-11-22 07:44
"Mr G. H. Schorel-Hlavka O.W.B." <admin@inspector-rikati.com>
Rodney,
I understand you got a matter before the High Court of Australia regarding some conviction regarding a key.
Regarding your entitlement within s41 of the constitution one need to consider the precise details.
If you like to provide me with what the Commonwealth is pursuing against you then perhaps I can comment on
it?
Ss44
QUOTE
(ii) is attainted of treason, or has been convicted and is under
sentence, or subject to be sentenced, for any offence
punishable under the law of the Commonwealth or of a State
by imprisonment for one year or longer; or
END QUOTE
In my view to be Disqualified the punishment that could have been inflicted upon you had to be 1 year or
more..
However, if the taking of the key was deemed a small matter then you were in my view entitled to stand for
election.
It is the crime that was committed that determines what sentence could have been applied.
if you were not sentenced to 1 year or more imprisonment then I personally can not see how you could be
disqualified.
Again, this is a mere general comment as I do not know the particulars of your case but you are free to reply to
me and I might be able to provide further details.
Gerrit
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19
--
107 Graham Road
END QUOTE 7-12-2016 EMAIL to Senator Rodney Culleton
And we might also consider that the Framers of the Constitution embedded the legal
principle in the constitution there be no majority jury decision, but has to be from 12
jury persons to convict!
QUOTE
[start page 351]
Mr. HIGGINS.-But why should we make it a matter for the Constitution, which cannot be affected by anything the
Federal Parliament may do, that there shall be a jury for the trial of any indictable offence?
Mr. WISE.-Because it is a safeguard of liberty.
Mr. HIGGINS.-If the honorable member were speaking a hundred years ago he might have expected his remark to be
applauded when he spoke of trial by jury as being a necessary safeguard of liberty.
Mr. WISE.-I am speaking of modern times and in view of the decisions of Courts of Equity.
Mr. HIGGINS.-A Court of Equity would not be able to imprison the honorable member, except be were guilty of
contempt of court, without trial by jury; they would have no power to put him in prison for an indictable offence,
even supposing that the honorable member were guilty of an indictable offence. It would be, in the mouth of any
one else but my honorable and learned friend, mere clap-trap to say that trial by jury was a safeguard of liberty at the
present time. I agree that it is as well to have a jury in criminal cases; I should like to see the system preserved in such
cases. But that is not the issue. The issue is whether we are to stereotype this in the Constitution, and to say, no matter
what changes may come about in legal procedure and in the mode of dealing with crimes, that we must have a jury,
and that nothing but a change in the Constitution can bring about an alteration. I can tell honorable members that
under a similar provision in the American Constitution there has been a great deal of embarrassment, because they
have not been able to alter the criminal procedure in order to suit the exigencies of modem times.
Mr. GLYNN.-They have no power to take a majority verdict, for instance.
Mr. HIGGINS.-That may be right or wrong; they cannot have assessors in commercial cases. No matter how
important the case may be, nor how large the interests at stake, they have to take the verdict of a common jury
composed of men taken out of the street, as it were, although the case may involve huge interests, and be very
complicated. There is more and more a tendency for the frauds which take up the time of the criminal courts to be of a
complicated nature, often involving difficult questions of accountancy. And is it fair to say that there should be no
power to say what class of men shall try a case of that kind? In Victoria, where there have been charges made against
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20
the directors of public companies, there has been a general feeling that ordinary juries are not competent to go into
the difficult questions of accountancy involved.
Mr. OCONNOR.-This matter does not cover cases of that kind, but relates to matters which are undoubtedly
offences under the Constitution.
Mr. HIGGINS.-But the instances I have given serve as an illustration. Under the American Constitution, which is still
more stringent, they have no power to vary the constitution of the jury; the kind of jury must always be the common
law jury. In dealing with federal functions, or functions which come under the federal law, we should not restrict the
Federal Parliament from making its own procedure. I may remind honorable members that the Federal Parliament will
have power to deal with bankruptcy law, with company law, and other complicated matters. In view of such intricate
affairs being delegated to the federal authority, is it not possible that there will be difficult matters of accountancy
cropping up in cases tried under the federal law? I shall, therefore, have much pleasure in supporting Mr. Glynn in this
amendment. I may say also with regard to the latter part of the clause, that I think it is still more objectionable. Why on
earth should the trial necessarily take place in the state in which the offence is committed? The offence, or alleged
offence, may be one which is backed up by the sentiment of [start page 352] the people in the state in which it is
committed, and it may be very hard indeed to get a conviction there. My view is that what we want to get is justice-to
get the law carried out, right or wrong, and in order to get justice it may often be expedient to have the, trial
conducted in a place far removed from where the offence was committed. For instance, if the customs law happens
to be agreeable to eleven out of twelve states, but the twelfth state objects to the law, and an accusation is brought
against a man in the twelfth state, why on earth should not the trial be removed to where there may be an impartial
verdict given?
Mr. BARTON.-Is not every state big enough to have a trial in?
Mr. HIGGINS.-It may be big enough, but every state may have different interests.
Mr. WISE.-A man ought not to be punished for what twelve jurymen think to be right.
Mr. HIGGINS.-It depends upon what the jurymen are. Suppose they happen to be twelve pals of his.
Mr. WISE.-That is his good luck.
Mr. HIGGINS.-Suppose the twelve jurymen happen to be inclined to favour the offender. I do not mean to say, as a
rule, that a man ought not to be tried among those who are his neighbours, but I hold that we ought not to put this as
a rigid condition within the four corners of the Constitution Act. I shall support my honorable friend now, and if he
succeeds in this amendment, then I shall support him if he moves to leave out the latter part of the clause.
Mr. ISAACS (Victoria).-I do not think there is any safeguard at all such as the honorable and learned member (Mr.
Wise) has stated. He says it is to safeguard the right of every person charged with an indictable offence to have a
jury. To my mind, it is a very proper thing to do. I think, in our present state of development, a man is entitled to have
a jury in a case; but it is no fetter on the Federal Parliament, because, when it creates an offence it may say it is not to
be prosecuted by indictment, and immediately it does it is not within the protection of this clause of the Constitution.
In the United States Constitution, the corresponding clause is "the trial of all crimes, except in cases of impeachment,
shall be by jury," which is a very different thing; so that if the Congress of America were to declare any act or default to
be a crime, necessarily it could not go on to say, or use any words, or make any provisions by which a person could be
deprived of a jury.
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21
Mr. WISE.-Do you think that public sentiment would ever tolerate the punishment of imprisonment for an offence
which was not triable by indictment?
Mr. ISAACS.-It is done every day. A man is tried before a magistrate and gets twelve months or two years'
imprisonment.
Mr. WISE.-Two years?
Mr. OCONNOR.-Two years, by a court of summary jurisdiction?
Mr. ISAACS.-I will not bind myself down to two years, but it is certainly a year's imprisonment that he gets.
Mr. BARTON.-Then you ought to have very good magistrates.
Mr. ISAACS.-I will say, two years at all events, and in the Court of Insolvency one Judge sits and has power to inflict
imprisonment to a very considerable period. Whether it is right or whether it is wrong, I think a man should have, for
what are known as criminal offences, a right to a jury. But this clause as it is framed will not conserve that right. It
does not use the word "crime"-it uses the words "indictable offence"; and all the Legislature has to do is to say that an
offence shall be prosecuted by information or shall not be tried by indictment, and there is no right to a jury at all. The
moment the offence is not an indictable offence, then it ceases to be one which comes within the purview of this
clause.
Mr. OCONNOR.-You may trust the Parliament not to increase the list of [start page 353] offences to be dealt with by
summary jurisdiction.
Mr. ISAACS.-Then you may trust the Parliament not to wipe out the right to a jury? I am not arguing against the right
to a jury, because I think that, except in certain cases of summary procedure, a man has a right to have a jury, and
public sentiment would not at this day allow that right to be swept away. If this is intended to fetter the Federal
Parliament it partly fails in that intention.
Mr. GLYNN (South Australia).-I would like, in order to have this point a little more carefully considered, to point out
that this is one of the original amendments which were put in the American Constitution. At the meeting of nine states
in New York in 1765, in the Declaration of Rights against England, it was declared that trial by jury, which it was then
feared was being attacked by England, was one of the inalienable rights of every British subject in the colonies, and
many of the states which took part in that Declaration of Rights in 1765 subsequently refused to join unless a similar
provision was put in the American Constitution. I ask on what grounds are we to follow the precedent of America in
this matter? There is no reason why we should do so. It is simply the copying, without the existence of the same
necessity, of a clause in the American Constitution. On the ground that you should not fetter the omnipotence of
Parliament, I hold that the words ought to be struck out.
END QUOTE
In my view Senator Nick Xenophon would do better to concentrate upon his own errors than to try to
make out that Senator Hinch so to say is to learn the ropes.
(http://www.9news.com.au/national/2016/12/04/11/14/derryn-hinch-will-learn-the-job-senator-xenophonsays 11:22am December 4, 2016 Derryn Hinch will learn the job: Senator Nick Xenophon). I for one
have an issue with http://www.abc.net.au/news/2016-11-29/xenophon-drops-murray-darling-demandspaving-way-for-abcc-vote/8076678 Nick Xenophon backs away from Murray-Darling water demands,
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22
paving way for ABCC (Updated about an hour agoTue 29 Nov 2016, 11:12pm ), in QUOTE South Australian
senator Nick Xenophon has backed away from demands over the Murray-Darling Basin plan, paving the way for a vote on the
Government's key industrial relation bill. Senator Xenophon had threatened to hold up legislation until the Government found
an extra 450 gigalitres of water to restore the health of the Murray River, but a compromise was reached on Tuesday. END
QUOTE
QUOTE
Mr. BARTON.-Yes, the reservation clause. Now, that clause has a twofold operation. It means, first, that the power
to deal with water conservation and irrigation, which, if you rely on sub-section (1) alone, finds no mention in this
Constitution, and, therefore, is not a power given to the Commonwealth, but a power retained in the states
absolutely.
END QUOTE
QUOTE
Mr. HIGGINS.-Suppose the sentry is asleep, or is in the swim with the other power?
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
In my view Senator Nick Xenophon should stick to learning the true meaning and application of the
constitution (Commonwealth of Australia Constitution Act 1900 (UK)) first as after all he has claimed
the seat because of the constitution permitting this and as such is bound to adhere to the true meaning and
application of the constitution and not despite of this.
Miriam GetUp! <info@getup.org.au>
inspector_rikati@yahoo.com.au
Today at 16:40
To
QUOTE
G.H,
The Turnbull Government could be about to break its pre-election pledge not to bankroll the Adani
corporation's Reef-wrecking coal mine.
Page 22
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23
During the election campaign Prime Minister Turnbull said, on camera, there would be no public
money for Adani's Carmichael mine.1 But now, he could be about to go back on his word, with
preliminary approval granted for the Federal Government to hand over one billion dollars in
taxpayers' money to prop up the project.2
END QUOTE
QUOTE
Mr. ISAACS.-I should hope that the expenditure caused by a bush fire would not be part of an annual service.
Mr. MCMILLAN.-Would it not into the Appropriation Bill?
Mr. ISAACS.-Yes; but not as an annual service.
Mr. MCMILLAN.-The annual services of the Government are those which we distinguish from special grants and
from loan services. The difficulty is that we have got rid of the phraseology to which we are accustomed, and instead
of the words Appropriation Bill, we are using the word law.
Mr. ISAACS.-A difficulty arises in connexion with the honorable members proposal to place expenditure incurred
for bush fires in the ordinary, it would not be annual, and it would not be a service.
END QUOTE
Therefore not only can one not provide monies for matters not within the legislative powers of the
Commonwealth but any special payment can only be made by special Appropriation Bill.
He never had the common decency to respond to my previous writings to him about these issues and even
so I then quoted some of what is stated below
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. 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
Page 23
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24
Former Senator Day discovered how unconstitutionally as I view it the High Court of Australia ordered
cost against him to challenge upon constitutional grounds the changes of the Senate voting system.
QUOTE
Sir JOHN DOWNER.-Now it is coming out. The Constitution is made for the people and the states on terms that are
just to both.
Mr. DEAKIN.-It is made for the lawyers under this clause.
Sir JOHN DOWNER.-I do not think so. If you say "Trust the Parliament," no Constitution is required at all; it can
simply be provided that a certain number of gentlemen shall be elected, and meet together, and, without limitation, do
what they like. Victoria would not agree to that. But there is a desire to draw the very life-blood of the Constitution, so
far as the states are concerned, by this insidious amendment, which would give the Houses authority from time to
time to put different constructions on this most important part of the Constitution. I hope we will do as we have
done in many instances before, in matters that have been much debated-adhere to the decision we have already
arrived at.
END QUOTE
QUOTE Mr. BARTON.Let us examine the matter a little. Is it right that there should be tacking? There is not an honorable member in the
Convention who will not say that it is wrong. This clause in itself is a clause to prevent tacking, therefore, it is a clause
to do right-for whom?-for the people themselves. What is the good of our arguing this question on the basis of the
rights, inter se, of the two Chambers, when the whole life of both these Chambers is that they are servants of the
public? For whom are these protections in clause 55 introduced? Is it for the Senate they are introduced? No, it is for
the public.
END QUOTE
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
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25
Yet, We the People are generally prevented to hold any government accountable in the courts where the
courts uses orders for cost against those who seek to hold a Government legally accountable while the
wrongdoings/perpetrators can use our taxes to defend themselves and manipulate the legal processes to
suit themselves.
This means we no longer have a democracy!
We are ruled by those who participate in evil!
Lets be honest about it that as I understand it Senator Rodney Culleton exposed the High Court of
Australia has rules which conflict with constitutional provisions and as such a person like myself who
extensive researched certain constitutional issues would be prevented to pursue it in the High Court of
Australia because of the manner the High Court of Australia operates.
INSPECTOR-RIKATI on IR WorkChoices Legislation (Book-CD)
A BOOK ABOUT THE VALIDITY OF THE HIGH COURTS 14-11-2006 DECISION
ISBN 978-0-9751760-6-1
INSPECTOR-RIKATI on IR WorkChoices legislation - CD Chapter 123
QUOTE
As Author of many books about constitutional and other legal issues, I am aware that I might be, so
to say, thorn to the High Court of Australia to expose how they are handing ill conceived judgments
in total defiance of the intentions of the Framers of the Constitution, such as, but not limited to, Sue
v Hill, Sykes v Cleary, Pochi 1982, Re 1943 Jehovah and civil rights, the 1982 Wilson J judgment
regarding religious school funding, the Hindmarsh case, the Franklin Dam case, the !976 mining
case, the Territories Senators case in 1976, the many judgments regarding administrative detention
of refugees/aliens, etc, but this should not cause me then to be blocked out of all Austlii
sites/judgments!
END QUOTE
QUOTE
Sir SAMUEL GRIFFITH: So far as the objection with regard to payment is concerned, there is a good deal in it, and the
matter should be dealt with now. The clause only deals with the first senators. Afterwards the term of service begins
on the 1st of January. I suppose a senator can hardly be called a senator until the 1st of January arrives. He will be a
senator elect, but he will not be a senator really until that day. If parliament is in session on the 1st of January, he
will walk in and take his seat, and the other man will walk out, and his pay, I apprehend, will begin on the same day.
But the hon. member has pointed out a blot with respect to the first senators. A man might be elected in December
and claim twelve months' pay, dating from the previous January. This, I think, would be remedied by inserting in the
second paragraph the words "for the purposes of his retirement."
Mr. WRIXON: The matter will want a little thinking over, because I apprehend a man is not a senator until he
presents himself and takes the oath.
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26
Sir SAMUEL GRIFFITH: Why not?
Mr. WRIXON: He might refuse to take the oath, and so would be disqualified from the beginning. It is not until be
presents himself and takes the oath that he is really a senator. He is in potentiality a senator; but he is not completely
clad in that position until he [start page 602] appears at the table and takes the oath, and I apprehend he is not
entitled to payment until that takes place. I would suggest that it is somewhat hazardous to make an amendment at
the table in a bill of this kind, which has been carefully considered; and if these matters are home in mind, they can be
afterwards dealt with by the draftsman. I would deprecate any hurried amendment on the spot, where it may not be
required.
Sir HARRY ATKINSON: The clause states that the term of service of a senator shall not begin until the 1st January
following the day of his election. If a vacancy occurs, and a senator is elected in June, he then becomes a senator;
but, according to this part of the clause, he cannot become an actual senator until the following January. Though
parliament might be in session, he would be unable to take his seat. I would suggest to the hon. member, Sir Samuel
Griffith, that he should take a note of this point, and consider it. I do not think we could make any amendment here
that would meet the case. For the purposes of this particular clause the provision is right enough; but I think there will
be a difficulty in regard to payment, and also as to vacancies occurring.
END QUOTE
QUOTE
Mr. MARMION: It seems to me that there are two portions of the bill which may be affected by the proposed
amendment. In the first place, unless it is distinctly laid down in the bill that a senator, though elected, does not
become a senator until the 1st of January, there will be during that interval twelve senators instead of eight; because
there will be four who will not retire for some considerable period after the election. There is another view of the case.
A senator may be prevented for a period from holding his seat in the local house of representatives. When he is
elected to the senate, he cannot sit any longer in the state house of representatives, and if his election to the senate
takes place some time prior to the end of the year, unless it is distinctly laid down that the mere fact of his election
[start page 603] does not make him a senator, he will be obliged to retire from the local house of representatives.
Sir SAMUEL GRIFFITH: There is no doubt a little difficulty. In the cases of which we have experience, members of
parliament are elected by a constituency that may be said to be in permanent session. Here we have to deal with the
case of a constituency which is in session only sometimes. We must, therefore, deal specially with it. There cannot be
more than eight senators at a time. There will be eight senators and four senators elect; for a senator elect is not a
senator until his term begins. There is no reason why a member of the house of representatives should not be
elected to be a senator in June; next January he becomes a senator and ceases to be a member of the house of
representatives.
Amendment agreed to; clause, as amended, agreed to.
END QUOTE
QUOTE
Mr. DEAKIN:
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27
To my knowledge they spent a large portion of the time that intervened in making exhaustive enquiries about the
water supply of the Murray basin and what quantity could be used or diverted. They caused researches to be made
which had not up till then been made, and without which no determination could be arrived at. Mr. Gordon has stated
his case fully and clearly, but he will admit that if there were cast upon him the task of determining how these waters
should be apportioned the task would be almost beyond the capacity of man. The position is as Mr. Carruthers has
clearly stated. First of all, if it be a legal issue, this is practically a question of international law, and though it may be
the custom of adjoining nations in the old world, and also in the new, to agree to conferences in regard to the
navigation or the use of the waters of rivers, I know of no power to coerce any self-governing colony into holding such
a conference. I am not arguing against the reasonableness of the hon. member's claim, nor am I contending that New
South Wales in this instance would not be acting a courteous part in agreeing to a conference. It seems to me highly
desirable that some friendly enquiry into this matter and into the circumstances surrounding it should be entered
upon.
END QUOTE
What is needed is to place the matter before the High Court of Australia so it then upon a judicial
matter can determine what percentage of water flow should be required to flow of water to South
Australia in regard of riparian water rights, and how each relevant State will be legally required to
participate in such supply. Clearly s100 of the constitution dealing with navigating issues cannot be
used for distribution of water for farming and other issues!
If however Senator Nick Xenophon cannot bother to follow the proper path to seek after 115 years to
have matters resolved, then in my view he hardly is one to comment on Senator Deryn Hinch ability!
QUOTE Mr. HIGGINS.. I should prefer to rest on the fact that the powers of the Federal Parliament are limited under the Constitution itself,
and that the Federal Parliament has no power to do anything except what is expressly given to it, or what is by
implication necessary.
END QUOTE
QUOTE
Mr. BARTON.-No; I do not think that there is anything in the Bill that takes it away. Very well, then, if a state law, or
the action of the state, or the action of a citizen of a state, does not contravene Commonwealth legislation under that
power of legislation, granted in this Bill. the state law is still valid, and cannot be touched or interfered with, and that I
conceive is sufficient for the purpose of New South Wales under this Constitution. Now, my honorable friend (Mr.
Isaacs) yesterday, in that remarkably able and statesmanlike speech which he made-one of the best speeches
addressed to this Convention since it began its sittings in Adelaide-mentioned state laws with regard to irrigation in the
United States, especially state laws passed with reference to the and country, and with reference to California. Now,
while my honorable friend mentioned those in support of his argument, all those instances are evidences that, under
the operation of the trade and commerce clause in America, the right is retained to the states, under the United States
Page 27
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28
Constitution, to deal with these matters, and is recognised by the courts. And if there were any doubt about that in our
own' case, we have only to refer to clause 99 of this Bill, which tells us thatAll powers which at the establishment of the Commonwealth are vested in the Parliaments of the several colonies,
and which are not by this Constitution exclusively vested in the Parliament of the Commonwealth, or withdrawn
from the Parliaments of the several states, are reserved to, and shall remain vested in, the Parliaments of the states
respectively.
Mr. KINGSTON.-That is the reservation clause.
Mr. BARTON.-Yes, the reservation clause. Now, that clause has a twofold operation. It means, first, that the power
to deal with water conservation and irrigation, which, if you rely on sub-section (1) alone, finds no mention in this
Constitution, and, therefore, is not a power given to the Commonwealth, but a power retained in the states
absolutely. And it means, in addition to that, that the states will retain their power of dealing with the navigation of
their rivers, except so far as those rivers fall under the domination-if you like to use that large word-of the
legislation of the Commonwealth, when the Commonwealth chooses to legislate on the subject of navigation. So
that the position of the state is secure as regards the conservation and use of its waters, except to the extent that
there may be an actual navigation law passed by the Commonwealth, which may have the effect of limiting the
state use of the water of the rivers within that state.
END QUOTE
QUOTE Mr. GORDON.If irrigation is a national necessity and a national problem-if it is now a matter of regret that the American
Government did not take over the control of the public streams of America-would not the same regret and the same
conditions exist here? Irrigation will be ten times more a national necessity here than it is in America, and the regret
will be ten times greater if we miss this chance of settling the question, and the Constitution does not provide for the
control of these water channels. And, after all, what are we asking for? We are only asking for the right that every
riparian proprietor enjoys under British law-the right that the man above him shall neither injure the quality nor
diminish the flow of any stream designed for their mutual benefit and enjoyment. That is a right that is founded deep
in natural justice. It cannot be said that we are asking for anything extraordinary or making extreme demands upon
our follow colonists when we simply seek for that right which every riparian proprietor under British law enjoys. The
tendency of modern legislation is to go even further than the common law doctrine in declaring that there shall be no
exclusive property in running streams. The tendency of modern legislation is to say that while the riparian proprietors
should have their rights under the law there is a higher, a paramount right, the right of the people who are the
dwellers on the banks of these streams. That is an extension of the doctrine of riparian [start page 38] rights that is
being acted upon by many of the Governments of the United States. It cannot, therefore, be said that we are robbing
New South Wales, or making extreme demands on the generosity of that colony, when we are only asking for that
which every man in New South Wales enjoys-the right to have the stream which flows through his land undiminished
in quantity and uninjured in quality. That is all we are asking for, and how can it be said that the demand is
unreasonable?
END QUOTE
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29
The Constitution Convention Debates makes clear that WATER that falls on a property belongs to the owner of that property.
However, the usage of the WATER must be in such manner that it does not interfere with the rights of others. More over, that
by federation. it means that riparian rights are applicable.
I understand that the Commonwealth with agreement of the States has discontinued the Inter-State Commission, but no such
powers existed for the Commonwealth and the State to do so and hence the Commonwealth of Australia itself is clearly at
fault in that regard also, as are the States.
QUOTE
Commission obligatory.
END QUOTE
And
QUOTE
Mr. HIGGINS.-But the Inter-State Commission must be absolutely independent of Parliament.
END QUOTE
QUOTE
Mr. FRASER: There is the Paroo, too.
Mr. CARRUTHERS: On the Warrego water is conserved in flood-time by dams. These dams have been cut, and the
water has disappeared in the course of a few hours. It is not the water that is used by the New South Wales people, by
the stock-owners or the settlers, which deprives the Murray of its flow, but that water which mysteriously but surely
percolates into the hidden streams of Australia, that water which disappears by evaporation, and which no amount of
legislation can retain. That is the water, which if we could retain it, would be employed to supply the requirements of
humanity, and which would be used for navigation. The hon. member's aim is manifest. It is to give to South Australia
not riparian rights for the use of the water for fertilising the soil, but to give her rights so that she may carry on
navigation, so that she may have an increased flow of trade. Well, we are not prepared, for the sake of seeing the
trade of our colony go through South Australia, to inflict a death blow on every settlement on what we rightly consider
to be perhaps the best land in our colony. We have looked that land up for twenty-eight years against any closer
settlement, because we hoped during that period to devise some scheme by which we can so utilise the water that we
can place men there in occupation of small holdings. 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
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30
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 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 oldworld 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.
Mr. MCMILLAN: This happens to be a very wide subject, which might occupy us here for days. We have heard tonight
a very able and exhaustive speech from the hon. member for South Australia-absolutely exhausting, I think, his side of
the question. We have heard a speech from the Minister of Lands of New South Wales who has peculiar opportunities
of knowing all about this question. Now, the question has been put by these two gentlemen in nearly all its aspects.
END QUOTE
QUOTE
Mr. CARRUTHERS
I have had many instances during the last three years which would perhaps open, the eyes of those who look at this
matter from a mere theoretical standpoint. Only a few days ago, on one of the tributaries of the Murray, the billabong
running from Albury down to Jerilderie for several miles was dry. The only water practically was that conserved by the
construction of a dam. A time of drought was on. Stock were perishing from want of water. The settlers below the
dam, just like the South Australians here, were crying out that the flow of water was impeded. They set to work and
cut the dam to let the water out, and in twenty-four hours there was no water in the billabong. What they thought
would benefit them was a suicidal policy. It takes an immense body of water before you can satisfy the soil itself, and
the tributaries, if not dammed up would, in many parts of the year, contain no water at all. I can give another instance.
There is another tributary of the Darling-the Warrego. For [start page 804] six months of the year it is practically a dry
bed, and you can drive across it.
END QUOTE
Page 30
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31
QUOTE
Mr. HIGGINS.-If New South Wales and Victoria were private individuals, there is no doubt about your right to stop
undue interference with these waters.
Mr. GORDON.-That is a right founded on natural justice.
Mr. HIGGINS.-It is a legal right where individuals are concerned, but the difficulty is that the colony is not an
individual.
Mr. SYMON.-The only difficulty is, that as between states you cannot have the advantage of legal process or
enforcement of legal decrees. If you are left without that, what have you to appeal to?
Mr. ISAACS.-I would like to see the authority for it being a legal right.
END QUOTE
QUOTE
Mr. HIGGINS.-I beg to moveThat the following be sub-section (31):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.
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.
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 subPage 31
7-12-2016
32
section (1), or whether we do any-thing by way of stronger definition-and 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
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.
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.
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?
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 sub-section 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.
Page 32
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33
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
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.
Mr. BARTON.-Is not that claiming infallibility?
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.
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
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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?
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.
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 interstate 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?
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35
Mr. HIGGINS.-That case refers to the ebb and flow, I think.
Mr. BARTON.-It denies that ebb and flow is an essential.
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.
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 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?
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
Now back to the Senator Rodney Culleton election validity I will quote some more statements by the
Framers of the Constitution:
High Court of Australia regarding Sykes v Cleary
21. The reference in s.44(iv) to "any office of profit under the Crown"
(emphasis added) is apt to include an office of profit under the Crown in
right of a State. Not only are the words wide enough to achieve this result
but also the last paragraph of the section proceeds on the footing that, but
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for that paragraph, a State Minister would hold an office of profit under the
Crown in right of a State and be disqualified.
And
If such an office of profit in

a State stood outside s.44(iv), there would have been no need to exclude State
Ministers from the disqualification. The Convention Debates reveal that the
exclusion of State Ministers from the disqualification was put forward because
it was believed that State Ministers otherwise would be disqualified because
each of them was relevantly the holder of an office of profit under the Crown
The gross error the High Court of Australia made was not to realise that it is not relevant if a person is a
candidate subject to bankruptcy or other matters such a criminal conviction and sentence but that the
person no longer is so when taking up the seat elected for. As Phill Cleary had resigned his position prior
to taking up the federal seat of Wills I view he was wrongly ousted from Federal Parliament.
Clause 49. If a senator or member of the house of representatives accepts any office of profit under the Crown, not
being one of the offices of state held during the pleasure of the governor-general, and the holders of which are by this
constitution declared to be capable of being chosen and of sitting as members of either house of parliament, or accepts
any pension payable out of any of the revenues of the commonwealth during the pleasure of the Crown, his place shall
there upon become vacant, and no person holding any such office, except as aforesaid, or holding or enjoying any
such pension, shall be capable of being chosen or of sitting as a member of either house of the parliament.
But this provision does not apply to officers of the military or naval forces who are not in the receipt of annual pay.
Mr. DIBBS: I shall propose the omission from this clause of any words that would debar any person holding a
pension from having a seat in parliament. I do not see why a gentleman who has a pension which he has legitimately
earned should be prevented from having a seat in either house of the legislature. Having in view the discussion which
took place on the 46th clause, why should we exclude any one lawfully enjoying a pension which he has honestly
earned? I should like to hear some explanation of the matter.
Sir SAMUEL GRIFFITH: It applies only to pensions during pleasure. The object is to prevent persons who are
dependent for their livelihood upon the government, and who are amenable to its influence, from being members
of the legislature. There is no reason that I can see why a man who has served his country, and to whom a permanent
pension has been allowed, should not be permitted to sit in the legislature. But a "pension during pleasure" might be
given; and the holder of such a pension should certainly not be allowed to become a member of parliament.
Sir JOHN BRAY: Why should we contemplate the possibility of such things?
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Sir SAMUEL GRIFFITH: I cannot sympathise with the hon. gentleman in thinking that our forecast at the present
time includes all possible contingencies. I do not think that such a thing is likely to happen; but, so far as I know, human
nature has not changed much in the last 300 or 400 years, and such a thing might happen again.
Sir JOHN BRAY: I agree with the hon. member, Mr. Dibbs, in thinking that these words should be struck out. It does
not seem likely to me that the commonwealth will provide for pensions during pleasure, and I do not think that the
words are necessary. I would, however, ask the hon. member whether it is not necessary to except in this clause the
speaker and president?
Sir SAMUEL GRIFFITH: They are not under the Crown!
[start page 661]
Sir JOHN BRAY: They hold offices of profit under the Crown, though they are not appointed by the Crown. I
shall support the proposal of the hon. member, Mr. Dibbs.
Mr. KINGSTON: Although it seems improbable that there will be a case of a pension created during the pleasure of
the governor-general, still it seems to me highly desirable to provide against such a contingency. To permit a member to
sit in the federal parliament whilst he was liable to be controlled by the governor-general by the withdrawal of his
pension, would be a great mistake, and, as provisions similar to this are contained in the various local constitutions, I
trust that this will be retained.
Sir GEORGE GREY: We must all admit that what has been may be again, and there can be no doubt that not very
many years ago pensions held at pleasure did exist to a considerable extent in England, and were a vast abuse. Now, one
object in putting these words in is that they would make it impossible to resume this practice here without due warning
that an illegal act was about to be done. We thus stamp illegality upon the proceeding.
Sir HARRY ATKINSON: I do not quite see the effect of the clause with regard to naval and military officers. Would
it not exclude officers and privates belonging to what are called the partly-paid forces, who are receiving a small
payment of 6 or 7 per annum?
Mr. THYNNE: I think that the hon. member, Sir Harry Atkinson, has touched a very important point. The clause, as I
read it, is intended to exempt from the disability created, men who are receiving only a small remuneration, perhaps for a
certain number of days during each year, but not permanently employed in the defence force. The exception, however,
applies only to officers. As one looking forward to the day when our defence forces shall be entirely a citizen army, I
think that both non-commissioned officers and men should be dealt with in this clause. I, therefore, beg to move:
That in line 18, after the word "officers" the words "or men" be inserted.
Mr. CLARK: Say "members"!
Mr. THYNNE: Very well. Then I shall move:
That in lines 17 and 18 the word "members" be substituted for the word "officers."
Mr. BURGESS: I think it would be well to have this point cleared up. In my own colony I unfortunately suffered
from the operation of a similar clause. Under our Constitution no member of Parliament, except those holding office as
responsible ministers of the Crown, can accept any salary or emolument from the Government. I was an officer in the
defence force, and Parliament passed a bill providing for the payment of all the officers of that force, and I was
then compelled by the Attorney-General to retire from my seat in the House, resign my commission as an officer,
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and afterwards submit myself to my constituents for re-election. That being so, I think it would be well if this
point could be cleared up, so that there may be no mistake about it.
Mr. THYNNE: I think my first proposal is the better one. I therefore ask to be allowed to withdraw my amendment,
so that I may insert after the word "officers" the words "or men."
Amendment, by leave, withdrawn.
HANSARD 18-3-1891 CONSTITUTION CONVENTION DEBATES
Mr. THYNNE: Perhaps I maybe permitted to say a word or two in reference to what has been already said. I think the
amendment of the hon. member, Sir Samuel Griffith, will amount merely to the carrying out of the present system under
our various constitutions, in which the general principle is laid down that members of parliament are not permitted to
hold office of profit under the Crown. That is a cardinal principle in all our constitutions, and it is only in virtue of
provisions contained in these acts that [start page 472] ministers are permitted to occupy the two positions-first, of an
office of profit under the Crown, and then that of a member holding a seat in parliament. I think the suggestion of the
hon. member, Sir Samuel Griffith, preserves the present condition of affairs as far as we can preserve it.
Sir SAMUEL GRIFFITH: If a member had either taken the oath of allegiance to a foreign power or had been
convicted of a crime, how would the speaker know that?
Mr. GILLIES: What is the meaning of the words, "upon the happening of a vacancy"?
Sir SAMUEL GRIFFITH: Whenever the seat of a member becomes vacant.
Mr. GILLIES: Who is to determine it?
Sir SAMUEL GRIFFITH: The house.
Mr. MUNRO: That would not do!
Sir SAMUEL GRIFFITH: Is the hon. member aware that every constitution provides for it? The stereotyped words
are, "Upon a resolution of the house declaring such vacancy." When a member of the house becomes either a
government contractor or a bankrupt, does the speaker exercise the power of declaring that member's seat vacant? I have
known instances where serious questions have arisen as to whether the writ should or should not be issued-in cases of
bankruptcy, for instance. Suppose a man is adjudged a bankrupt, and lodges an appeal against the adjudication, would
not the house, under those circumstances, decline to issue the writ until it knew the result of the appeal? Of course it
would. Some one must exercise that discretion, and it cannot be left to the speaker. In every parliament of which I know
this is the practice.
Dr. COCKBURN: The exceptional cases that the hon. and learned member mentions-such as members becoming
government contractors-are already provided for in clause 48, where it is laid down that in those cases either the senate
or the house of representatives are to be the judges. I take it that this clause applies more to vacancies such as those
caused by death.
[start page 643]
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Dr. COCKBURN: In clause 44 it is laid down that where the question respecting the qualification of a member, or a
vacancy in the house of representatives, is debatable at all, it is to be determined by the house of representatives. I think
that in all cases where the fact of a vacancy can be called in question there should be an adjudication either by some
tribunal of justice or by some resolution of the house. But in the case of a vacancy occurring in consequence of death it is
not necessary to declare the vacancy by a resolution. I am speaking of the time when the house is in session, and
legislation is in active operation.
Mr. FITZGERALD: No harm, then!
Dr. COCKBURN: There might be harm. One vote might make all the difference; and there might be a certainty that
when the vacancy was filled up it would be known on which side the vote would be given; and that might make all the
difference in the-world. I say, leave it to the speaker to act on his own motion, and not on a resolution which might be
brought forward for party purposes; and we know very often that party feeling does run very high.
Mr. FITZGERALD: How would it be when the facts were disputed?
Dr. COCKBURN: Where there is any dispute, it would be governed by clause 44. I think it is a mistake to retain the
words to which I object; but, if the feeling of hon. members is against me, I do not wish to occupy their time. I think the
words are superfluous; and it would be better if they were left out. But, although I have moved that they be struck out, I
will not divide the Committee on the question.
Mr. DONALDSON: I think there is a great deal of force in the contention of the hon. gentleman. There will be large
constituencies represented in the federal parliament, and it will take a considerable time before a member can be
returned, and several more days might elapse before he could attend in his place in parliament, and during that time very
important questions might be hanging in the balance. I do not believe in any state being practically disfranchised through
not having an opportunity of returning a member in a case where be would lose his seat through insolvency, or perhaps
through treason, or through being convicted of an infamous crime. All these disqualifications are provided for in clause
44, and I do not think there can be the slightest objection to provide for them in this clause; in fact, I think there can be
no doubt that words should be added to the clause to provide for a case in which a man is convicted of either treason or
an infamous crime. I can understand that when a man either resigns or dies the speaker has power to issue a writ to have
the vacancy filled; but I know that in Queensland, in a case of insolvency, a vacancy once existed for some time after the
meeting of the House. It was reported to the House early in the session, of course, but before the writ was issued and
returned some three or four weeks elapsed, and I believe that a longer period than that will be required in connection
with the federal parliament. I have no strong feeling on the point, but I believe we would be acting fairly by inserting
these other provisions in the clause.
Amendment negatived; clause, as read, agreed to.
Clause 48 (paragraph 1). If a member of the senate or of the house of Representatives accepts any office of profit under
the Crown, not being one of the offices of state held during the pleasure of the governor-general, and the holders of
which are by this constitution declared to be capable of being chosen and of sitting as members of either house of the
parliament, or accepts any pension payable out of any of the revenues of the commonwealth during the pleasure of the
Crown, his place shall thereupon become vacant, and no person holding any such office, except as aforesaid, or holding
or enjoying any such pension, shall be capable of being chosen or of sitting as a member of either house of the
parliament.
Amendment suggested by the Legislative Assembly of Victoria:
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40
Line 3, after "office," insert "except that of a justice of the high court."
Mr. WISE: Would it not be preferable, sir, to put first the amendment suggested by the Legislative Council of New
South Wales-to omit the second paragraph because it includes the less amendment suggested by the Legislative
Assembly of Victoria? If the paragraph is struck outThe CHAIRMAN: If it is decided that the words shall stand, we can put it. This amendment comes first. We cannot
amend the paragraph if the Committee decide that these words shall stand. The object is to permit of a member of
parliament acting as a justice of the high court.
The Hon. E. BARTON: If the amendment is agreed to it will make the clause read as follows:If a member of the senate or of the house of representatives accepts any office-except that of a justice of the high courtof profit under the Crown.
It seems to me a very strange and clumsy proposal. It seems that if a person accepts [start page 1029] any office of
profit under the Crown his seat will become vacant; but if he accepts the office of a justice of the high court he shall still
hold his seat. I think that must be a mistake-an inadvertence.
The Hon. J.H. GORDON (South Australia)[10.6]: Apart altogether from the question of the phraseology of the clause,
which can be altered by the Drafting Committee, what is meant can be easily understood, and I am strongly opposed to
it. I do not see for what reason there, should be an exception in favour of a gentleman who is chosen as the justice of the
high court, and no exception made in favour of gentlemen who are chosen to other offices.
Mr. WISE: The proper course is to strike out the second paragraph altogether; that is what is intended!
Mr. HIGGINS: The first paragraph is all right, and it ought to apply to judges!
Mr. WISE: Exactly; negative the amendment!
Amendment negatived; paragraph 1 agreed to.
Clause 48 (paragraph 2). Until the parliament otherwise provides, no person, being a member, or within six months of
his ceasing to be a member, shall be qualified or permitted to accept or hold any office the acceptance or holding of
which would, under this section, render a person incapable of being chosen or of sitting as a a member.
Amendment suggested by the Legislative Council of New South Wales:
That paragraph 2 be omitted.
The Hon. E. BARTON (New South Wales)[10.7]: I am in favour of the amendment of the Legislative Council of New
South Wales. We had considerable debate about this matter in Adelaide, and we had a narrow division. I think some of
those who voted in that division afterwards regretted their vote. I do not wish to reiterate the strong arguments which
were used against this provision in Adelaide. It is enough to say that it is a kind of provision which leads to the doing
indirectly of that which it forbids to be done directly, it is not a desirable thing to insert in any constitution, simply
because it is a matter of legislation, and a matter for which the commonwealth has to provide itself. Will hon. members
recollect that we refused to insert the suggested new clause of the Tasmanian Parliament to the effect that a member of a
house of the parliament of a state should be incapable of sitting in either house of the parliament of the commonwealth,
and that the ground of our refusal was that it was not our province to encumber the constitution with a body of laws for
the commonwealth, which certainly ought to be more competent than we to make laws for itself? When we remember
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that that was the reason why we refused to insert a provision of that kind, how much more strongly does such a reason
apply here? The other case was one in which there might be some show or reason for saying that it was a constitutional
provision. Who can say, however, that this is anything else but a mere matter of law-a mere matter of deciding in what
way the commonwealth should deal with the, position of its own members in relation to the acceptance of a certain
office. One can understand that a person accepting an office of profit under the Crown should vacate his seat; but to say
that no person being a member, or within six months of his ceasing to be a member, should be qualified or permitted to
accept or hold any office, the acceptance of or holding of which would render him incapable of being chosen or of sitting
as a member, means this: The disqualification which would attach to him as a member is prolonged against him after he
ceases to be a member. Now that cannot be a question relating to the constitution. It is not a constitutional provision at
all. It may find its place in the body of laws the commonwealth may make, and it may be that the common- [start page
1030] wealth should make a law on the subject. But if it be granted that it is necessary, as well as right, that the
commonwealth should make a law on the subject, that is not the slightest reason for putting it in the constitution.
An HON. MEMBER: Is it not the law in some of the colonies now?
The Hon. E. BARTON: Yes, they have made laws on the subject. What I say is that it may be a proper thing for the
commonwealth to make a law on the subject, but that is no reason why we should make a law to bind the commonwealth
on the subject. We ought to get rid of encumbering provisions of this sort. If the commonwealth chooses to legislate on
the subject, let it, but it is not for us to compel it to do so.
The Hon. J.H. GORDON (South Australia)[10.12]: I think the provision is one which ought to, stand. There is no
relation between this question and the question we discussed and settled with regard to dual membership-membership in
the federal house and membership in the state house. In that case there was no question of the purity of parliament; the
purity of the motives animating the members of the federal parliament could not arise. But this is a question directly
affecting the purity of parliament. The only fault I have to find is that the interregnum of six months is too short, I think
it ought to be twelve months.
The Hon. E. BARTON: Make it ten years!
The Hon. J.H. GORDON: There is reason in all things, and I think twelve months a reasonable period. I think in all
the colonies this provision prevails.
The Right Hon. Sir JOHN FORREST: No!
The Hon. J.H. GORDON: In nearly all the colonies. and in all the colonies that have had long experience of
responsible government.
The Right Hon. Sir JOHN FORREST: Does it exist in South Australia?
The Hon J.H GORDON: Yes, not by statute but by resolution of the House, and I think the right hon. gentleman will
find that it will be desirable to have a similar law in the colony of Western Australia. It is a most wholesome provision,
and the reasons for it are patent to every body. During the first session of parliament the commonwealth cannot exercise
any control whatever, over the actions of the government, and as I said before, the only fault I have to find is that the
inter-regnum is too short.
The Right Hon. Sir JOHN FORREST (Western Australia)[10.14]: I can see that this provision might act injuriously.
Some of the very best men whom you might require to fill high public offices might be members of parliament, and
under this clause the area of selection would be restricted. My experience has not been very great, but it has been
sufficient to show me that a government has no great desire to give their friends in parliament public positions, as by
doing so they would weaken their support.
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The Hon, J.H. GORDON: But they could bribe their enemies, which would be worse still!
The Right Hon. Sir JOHN FORREST: I do not think we need make this provision at the present time. If the federal
parliament likes to make the provision, let it do so. I think that, especially in the early days of the commonwealth, it
would be unwise to restrict the area of selection especially in regard to judicial offices. I do not want to say anything in
favour of legal members of parliament; they can generally do far more than take care of themselves; but it occurs to me
that some of the most experienced and able lawyers in these colonies are to be found in members of parliament. No one
will deny that, and in the early days of the common- [start page 1031] wealth I should be sorry to see this clause find a
place in the constitution. As time goes on it may be found necessary; if so, the federal parliament can legislate as may be
found desirable.
Mr. GLYNN (South Australia)[10.16]: I am inclined to move that the words "or within six months of ceasing to be a
member" be struck out. If members wish to strike out the whole paragraph they can do so.
An HON. MEMBER: Strike it out altogether!
Mr. GLYNN: If that be the wish of the Convention I will not make any proposal, but I would say this: that in the
opening of a commonwealth parliament it is not likely that any member of the ministry would be bribed out of it, and in
the filling of a judicial office the government would not be likely to go to members of the opposition.
Th Hon. E. BARTON: That is just where they would go!
Mr. GLYNN: I was about to say that at the opening of the parliament for twelve months or two years it is not likely
that there would be any opposition or government party. The opposition, therefore, would not exist from which any
choice could be made.
Mr. HIGGINS(Victoria)[10.17]: I voted in favour of this clause last time, and no subject has given me greater trouble in
deciding how to vote this time than has this particular clause. What I feel is this: that the object is to prevent political
appointments. At the same time the danger is infinitesimal as compared with the advantage of having a free selection;
and that is where I feel myself in a difficulty. I voted last time in favour of this provision, because I said to myself,
"What is sauce for the goose is sauce for the gander," and if you apply this rule in Victoria to all officials other than
judges and the Agent-General I see no reason why it should not be applied also to these latter officials under the
commonwealth. It ought to be applied altogether or not at all. I said to myself, "If you apply this to a man who is an
expert draftsman, or to a, surveyor who has been in parliament, it ought to apply to any other functionaries whatever. I
cannot draw any line. If you can draw, any line between the two classes I will give way." I felt in that difficulty; but I
have come to this conclusion: that it ought not to apply to any official, because the chances of log-rolling are so
infinitesimal. Is it likely, as the Right Hon. Sir John Forrest said, that the government would give a good billet to one of
its supporters and get him out of the house? I could understand a government giving a billet to a person in consideration
of future services; but when you are dealing with past services it is quite a different matter.
An HON. MEMBER: They might want to get rid of a dangerous opponent!
Mr. HIGGINS: It has been said, in the case of the Victorian parliament, that a certain gentleman was made AgentGeneral, because he was a dangerous opponent; but I would ask the hon. gentleman, Mr. Holder, whether the danger of
that occurring is so great that we ought in this constitution to provide against it, having regard to the way in which you
hamper the selection on the part of the government?
Mr. WALKER: It will drive good men out of parliament!
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Mr. HIGGINS: I do not think it will. Honestly, I think that when it comes to a mere question of chance one way or the
other, a man who wants to serve his country will do so in spite of this clause, no matter what may happen. I was anxious
to hear further argument on the clause before dealing with it. As matters at present stand, I must say that the inconveni[start page 1032] ences are so great to my mind as to over-ride a possible corrupt case, and, therefore, that I shall vote
against the clause.
The Hon. F.W. HOLDER (South Australia) (10.21]: I did not intend to repeat what I said at Adelaide; but it appears to
be necessary to point out one or two things. The object of those who support the clause is to prevent parliament
from being made a stepping-stone to some permanent government office, and that we should prevent parliament
being made such a stepping-stone is, I think, very necessary. I think it is better to remove even the possibility of
mischief rather than to grieve afterwards when mischief has been done, because we cannot cure it. I want to put this
point in answer to the argument of the hon. and learned leader of the Convention, which seemed to be a very weighty
argument. He said, "Why not leave the matter to parliament? Was there, under ordinary circumstances, any reason for
such a step as we propose to take?" Under ordinary circumstances, I think that parliament might very well be left to take
care of itself in this matter, and under ordinary circumstances, I would be content to leave Parliament to pass such
legislation dealing with this question as it thought fit; but, as I put it in Adelaide, I now put before hon. members this
consideration: Almost immediately the commonwealth comes into existence, there will have to be appointed four justices
of the high court, a chief justice, an agent-general, and-if we retain, as I hope we shall, the clause providing for an interstate commission on railways-three or four officials, making nine or ten persons, who will receive very high salaries and
occupy very important offices; and I think the fact that, before any legislation can be passed by the commonwealth
parliament, there will be those nine or ten offices to fill, demands some action at our hands that would prevent parliament
from being made a stepping-stone; and I hope that we shall not be unwilling to take that action now the opportunity
presents itself to us. I hope the Committee will determine to keep within the four corners of the bill the clause that was
inserted at Adelaide on this question.
The Hon. R.E. O'CONNOR (New South Wales)[10.24]: There is one view of this matter which appears to have been
lost sight of in this argument-that is, the interest of the public itself. It is all very well to say that we should not make
parliament a stepping-stone to these offices; but suppose that it is in the interest of the country that these appointments
should be conferred on particular men who happen to be in parliament, are the hands of the commonwealth to be tied so
that it shall not have the opportunity of appointing the best men simply because they happen to be in parliament? An
answer to that argument may be, we are so afraid to trust parliament, so afraid to trust the ministry for the time-being, so
afraid to trust those distinguished men who maybe appointed to some professional office, either judicial or engineering
office, or some office of that kind, that we must embed in this constitution a provision which may probably, in time to
come, narrow the selection of the best men for high public offices. That is a supposition that public criticism, the
capacity for smelling out jobs, the ingenuity which is displayed in discovering any possible corruption that exists in
regard to any great appointment, will not exist in the commonwealth parliament as it does here. It cannot be supposed for
a moment that if there is any corruption in regard to the appointment of a high public officer, such as the commissioner
for railways, or a judicial officer, it would not be exposed, and the ministry which made it held up to opprobrium. If the
person most fitted for the office happens to be in parliament, why should [start page 1033] he not, in the interests of the
public, be appointed, even though he may be the supporter, or a dangerous and inconvenient opponent, of a party? The
main consideration is surely the public interest, and considering the large trust which we are placing in the federal
parliament, and the enormous powers which we have given them in every direction, we may fairly allow them to
administer these matters subject to the criticism of an opposition, and under the eyes of the press and public. It is to this
criticism that we must look for the maintenance of the purity of parliament.
An HON. MEMBER: Is there not a provision of this kind in all the constitutions?
The Hon. R.E. O'CONNOR: No. That, to my mind, would be no reason why it should be placed in this constitution.
There is no such provision in the New South Wales law.
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44
Mr. LYNE: I think that a resolution was passed by the Assembly on the subject, though I am not certain. I think it was
passed after the late Sir Henry Parkes appointed Mr. Thompson to a position.
The Hon. R.E. O'CONNOR: Such a resolution may have been passed; but I do not remember it. It is no argument in
favour of this provision that one house passed a resolution which no subsequent parliament thought of sufficient
importance to embody in an enactment.
The Hon. E. BARTON: Such a resolution could only govern the house that passed it!
The Hon. R.E. O'CONNOR: Yes, of course. It is the interests of the public which we have to consider in this matter.
If we wish to leave the selection of these high officers as unfettered as possible, we should trust the federal parliament,
and leave it to the ordinary operations of the criticism of the opposition and of the press to see that purity is observed in
these matters. I think that provision is unworthy, of the constitution, unnecessary, and against the public interest.
The Hon. S. FRASER (Victoria)[10.29]: I am perfectly satisfied that the executive of a new commonwealth would
never commence its career by appointing incapable men. Therefore, there is no necessity for the clause. I could easily
name men against whom no colony could make the slightest objection. The sphere of selection is very wide, because
there are so many men in the six colonies to choose from.
The Right Hon. C.C. KINGSTON (South Australia)[10.30]: Although there is a great deal in favour of the suggestion
that this should be left to the federal parliament to deal with as they please, the clause is only of a tentative character. It
says that until the parliament otherwise provides this shall be the rule. Now, what is the position? That during the first
session of parliament, before in the natural order of things the federal parliament will be called upon to deal with general
questions, a large amount of patronage will require to be exercised, much more than at any other stage of the federal
history, because, of course, the various departments and establishments will have to be set up. All that this clause says is
that at that period, when this protection is most required, unless the federal parliament provides otherwise that shall be
the rule. If they do provide otherwise, they can do as they please. But if we err at all it is on the side of safety, throwing
around the proceedings of the federal executive a certain safeguard which can be removed at the pleasure of parliament.
But until removed it will prevail for the good of the community.
Question-That paragraph 2 stand part of the clause-put. The Committee divided:
Ayes, 10; noes, 19; majority, 9.
[start page 1034]
And
Clause 50. Until the Parliament otherwise provides, all questions of disputed elections arising in the senate or the house
of representatives shall be determined by a federal court or a court exercising federal jurisdiction
The CHAIRMAN: On this clause two amendments are suggested by the Legislative Council of New South Wales; but
inasmuch as they relate to a matter already decided, namely, the question of federal dominion, I will not put them. The
Legislative Assembly of New South Wales, the House of Assembly of South Australia, and the Legislative Council and
House of Assembly of Tasmania also suggest that the clause should be left out. It involves the same question as has been
decided.
The Hon. E. BARTON (New South Wales)[10.40]: In that case I would ask the Committee to leave the clause standing
for the present, as it is intimately connected with clauses 21 and 43, and I think also with clause 32. The Drafting ComPage 44
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45
[start page 1035]
mittee were asked to take the clauses into consideration together, which they mean to do. We shall deal with it probably
in some form on Friday afternoon.
Clause agreed to.
And
Clause 45. Any person whoIV. Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of
the revenues of the Commonwealth; but this sub-section does not apply to the office of any of the Queen's Ministers of
State for the Commonwealth or to the receipt of pay, half-pay, or a pension by any person as an officer or member of the
Queen's navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the
Commonwealth by any person whose services are not wholly employed by the Commonwealth
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
Sir JOHN FORREST (Western Australia).-I beg to moveThat the words "or of any of the Queen's Ministers in a state" be inserted after the words Ministers of State for the
Commonwealth in sub-section (4).
My object in moving for the insertion of these words is that the clause shall not apply to Ministers of the Crown in the
various states. There was a provision in the Bill, in Adelaide I think it was, that a member of a state Parliament should
not be eligible to be a member of the Federal Parliament. That provision was contained in the Bill of 1891, but it has
been excised, and therefore in the Constitution there is nothing to prohibit a member of a state Parliament from being a
member of the Federal Parliament. Unless the words I move to be inserted are inserted, a member of a state Government
will not be eligible to be a member of the Federal Parliament. I can well understand that this arrangement may be
inconvenient, and I should not oppose the introduction of a provision that one person should not be a member of a state
Executive as well as a member of the Federal Executive. But we are confronted with a. difficulty, especially in the
beginning of the operation of the Federal Constitution. By-and-by, no doubt, as time goes on, the difficulty which we
experience at the present time will not continue. The states will settle down, and the Federal Government will settle
down, and it will be found that one man will not be eligible in the view of the electors to fill the two offices. But, at the
beginning of the operation of the Constitution, we are confronted with this difficulty-that, unless these words are
inserted, there is not one Premier, not one Minister of the Crown in the colonies, who will be able to nominate himself to
be chosen as a member of the first Federal Parliament. To ask those who are in office at the present time, to ask those
who are Premiers of colonies, to say, before they are eligible to be chosen even as a member of the Federal Parliament,
[start page 1942] they must resign all the offices they hold is, I think, absurd and not reasonable. I ask honorable
members to insert these words, so that the clause shall not apply to any Minister of the Commonwealth or to any of the
Queen's Ministers in the states. I think I need not say any more in regard to the matter. The thing seems to me clear
enough. Unless honorable members wish to exclude all the Queen's Ministers at the present time in all the states they
must vote for the insertion of these words.
Mr. OCONNOR (New South Wales).-No doubt there are some inconveniences in adopting this proposal; but, on the
other hand, there are greater inconveniences in not adopting it. I think the right honorable member has shown very good
ground for carrying his amendment. The principal argument which appealed to my mind is that in this scheme of
federation, particularly in the finance scheme which we have adopted, it is very necessary that the states should keep a
sharp lookout on the management of the finances of the Commonwealth, and it is highly desirable that the leading public
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46
men in the states should be in the Federal Parliament, particularly those leading public men in the states who can speak
with the authority of office regarding the position of the finances of the states. Of course, under certain circumstances, it
might be inconvenient, and, as the right honorable member pointed out, it would be very inconvenient to have a person
occupying the dual position of a Minister in the Commonwealth and a Minister in the state. It is highly probable that the
state Parliament will look after that. It is a matter we may very well leave the state Parliament to deal with. The
amendment is an improvement on the clause, especially in aiding the Commonwealth at the beginning of its existence,
and I think it ought to be carried.
The amendment was agreed to.
The clause, as amended, was agreed to.
Clause 47-If a member of the Senate or of the House of Representatives accepts any office of profit under the Crown,
not being one of the offices of State hold during the pleasure of the Governor-General, and the holders of which are by
this Constitution declared to be capable of being chosen and of sttting as members of either House of the Parliament, or
accepts any pension payable out of any of the revenues of the Commonwealth during the pleasure of the Crown, his
place shall thereupon become vacant, and no person holding any such office, except as aforesaid, or holding or enjoying
any such pension, shall be capable of being chosen or of sitting as a member of either House of the Parliament.
Until Parliament otherwise provides, no person, being a member, or within six months of his coaxing to be a member,
shall be qualified or permitted to accept or hold any office the acceptance or holding of which would, under this section,
render a person incapable of being chosen or of sitting as a member.
But this section does not apply to a person who is in receipt only of pay, half-pay, or a pension, as an officer or member
of the Queen's navy or army, or who receives a new commission in the Queen's navy or army, or an increase of pay on a
new commission, or who is in receipt only of pay as an officer or member of the military or naval forces of the
Commonwealth, and whose services are not wholly employed by the Commonwealth.
Mr. BARTON: When this was going through Committee the following paragraph was inserted between paragraph 1
and 2 as a new second paragraph:
Until Parliament otherwise provides, no person, being a member, or within six months of his ceasing to be a member,
shall be qualified or permitted to accept or hold any office the acceptance or holding of which would, under this section,
render a person incapable of being chosen or of sitting as a member.
If another division is taken I shall be found as before voting against the amendment inserted at the instance of Sir
William Zeal. There was a considerable debate about this, and a close division, 18 to 15; and one or two members who
voted for it have intimated to my hon. and learned friend Mr. O'Connor, that on reconsideration they did not think they
should have voted for it, and that if it were recommitted they would vote the other way.
Sir GEORGE TURNER: Rather unfair when so many have gone away.
Mr. BARTON: But I do not even know whether those numbers are here. It was under the circumstances I mentioned
that I agreed to recommit the clause. I shall make no motion myself, and if no one makes a motion that clause can pass as
it stands.
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47
Mr. ISAACS: Has Mr. Barton considered the point that under this clause as it stands a member of a State
Parliament would not be debarred from becoming a member of the Federal Parliament, but a minister of the
Crown would be.
Mr. BARTON: I have considered the matter, and thought it better not to make provision for it. Because if a Minister
of a State Parliament is debarred, as in receipt of an office of profit under the Crown, from being in the Federal
Parliament, that is nothing more than what is right.
Mr. O'CONNOR: Hear, hear.
Mr. BARTON: I think we should launch ourselves into a very extraordinary state of things if we had a Minister in one
Parliament as the Minister of a State, who might take such a course as next day in the Federal Parliament might cause
him to be called upon to be at the head of a Federal Ministry. Those positions cannot be held together. Then why not
leave things untouched?
Mr. KINGSTON: I entirely disagree with the views expressed by my hon. friend. We permit a member of a local
Parliament to become a member of the Federal Parliament, and why should we attach a disqualification to a member
who stands so well with his fellow members that he has been raised to a Ministerial office. But I recognise that this is not
the time to thrash the matter out.
Clause as read agreed to.
IV. Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of
the revenues of the Commonwealth; but this sub-section does not apply to the office of any of the Queen's Ministers of
State for the Commonwealth, or to the receipt of pay, half-pay, or a pension by any person as an officer or member of the
Queen's navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the
Commonwealth by any person whose services are not wholly employed by the Commonwealth: or [start page 1932] v.
Has any direct or indirect pecuniary interest in any agreement with the public service of the Commonwealth, otherwise
than as a member and in common with the other members of an incorporated company consisting of more than 25
persons: shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
And
Clause 46.-If a senator or member of the House of RepresentativesI. Becomes subject to any of the disabilities mentioned in the last preceding section: or
II. Takes the benefit, whether by assignment, composition, or otherwise, of any law relating to bankrupt or insolvent
debtors: or
III. Directly or indirectly accepts or receives any fee or honorarium for work done or services rendered by him for or on
behalf of the Commonwealth while sitting as such member:
his place shall thereupon become vacant.
Mr. ISAACS (Victoria).-This clause has been recast by the Drafting Committee, and, as I gather, is intended to
incorporate the provisions of clauses 46, 47, and 48 in the Bill as amended in Sydney. Very good work has been done by
the committee in the attainment of brevity, but it seems to me that there is some little danger in connexion with this
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48
clause, and there are several points to which I should like to direct the attention of the honorable and learned member
(Mr. O'Connor). The clause provides thatIf a senator or member of the House of RepresentativesI. Becomes subject to any of the disabilities mentioned in the last preceding section his place shall thereupon become
vacant.
Sub-section (4) of clause 45 provides that any person who holds an office of profit under the Crown, not being the
office of any of the Queen's Ministers of State for the Commonwealth, is to be the subject of a disability. Therefore,
acceptance of the office of a Queen's Minister of State for the Commonwealth does not vacate the seat of a senator or
member of the House of Representatives. Is it intended, or is it right, to make that a cast iron provision of the
Constitution? I do not think that the clauses of the old Bill made this provision.
Mr. OCONNOR.-The clauses which have been remodelled were exactly to the same [start page 1943] effect.
That would have worked out in the same way.
Mr. ISAACS.-I have no recollection of the committee coming to such a determination. In any case I should like to
direct the attention of honorable members to the position that it is not left to the Commonwealth Parliament or to the
people hereafter to determine whether a senator or member of the House of Representatives accepting the position of
Minister of State for the Commonwealth is or is not to vacate his seat. But it seems to me that the matter ought to be left
to the Federal Parliament. The next point to which I will direct attention is more serious. Sub-section (2) of clause 46
provides that the seat of a senator or member of the House of Representatives is to become vacant if hetakes the benefit . . . of any law relating to bankrupt or insolvent debtors.
And
Mr. REID (New South Wales).-I beg to moveThat in clause 46, after the word "Commonwealth," in the last line of the clause but one, insert "or for work done or
services rendered in Parliament for or on behalf of any other person."
If this provision had been in the Constitution of the United States there would have been an opportunity of stopping a
number of abuses in connexion with legislative measures. I do not suppose it happens in the colonies at any rate, I know
of no such case but it has been stated that Members of Parliament, even in the colonies, have accepted payment for
putting Bills through the Houses. As I have said, I have never known of a case of the sort, but it is quite possible such
things have happened. We do not wish such a condition of affairs to arise. If we disqualify a man for performing
service for the Commonwealth for payment, it is equally important that he should be disqualified for accepting fees
for work done in the legislative body. Under the latter circumstances the member works under false pretences. He
appears to work in the public interest, when really he is accepting payment for putting measures through the Legislature.
The words I have moved refer to quite a different class of cases to those we have just dealt with. My object is to prohibit
Members of Parliament using their position for payment for advocating Bills and so forth.
Mr. ISAACS.-What do you mean by "work done or services rendered"?
Mr. REID.-You had better ask the Drafting Committee; I am using their words.
Mr. BARTON.-These are the words inserted at the instance of Mr. Carruthers at Adelaide.
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49
Mr. REID.-This amendment refers only to the first line of the clause-"If a senator or member of the House of
Representatives. The sub-section will now read:Directly or indirectly accepts or receives any fee or honorarium for work done or services rendered by him, for
or on behalf of the Commonwealth, or for work done or services rendered in Parliament, for or on behalf of any
other person.
This is a class of industry we want to suppress.
Mr. DOUGLAS (Tasmania).-In the standing orders of the House of Commons it is laid down that members, either by
themselves or by others, are prohibited from receiving fees for work done in the House of Commons. That is a standing
rule I tried to introduce in Tasmania, and I think that Mr. Reid should go a little further, and insert the words-"either by
themselves or any other person."
Mr. REID.-I think that my amendment will cover every member.
[start page 1946]
Mr. DOUGLAS.-But the member very frequently is in partnership with others, and he receives money indirectly
through his office. This is a very common practice in regard to private Bills, and it should be prohibited. It would be well
to adopt the words of the standing order of the House of Commons.
Mr. BARTON (New South Wales).-The amendment of my right honorable friend deals to a large extent with the
mischief provided for by the House of Commons in dealing with bribes. There is a passage in the tenth edition of May,
page 81, which may be useful as dealing with the subject:So also the acceptance of a bribe by a member has ever, by the law of Parliament, been a grave offence, which has been
visited by the severest punishments. In 1677 Mr. John Ashburnham was expelled for receiving 500 from the French
merchants for business done in the House. In 1694 Sir John Trevour was declared guilty of a high crime and
misdemeanour, in having, while Speaker of the House, received a gratuity of 1,000 guineas from the City of London
after the passing of the Orphans Bill, and was expelled.
It will be recollected that the powers, privileges, and immunities of the House of Commons will extend to the Federal
Parliament under the Bill as it stands. May goes on:In 1695 Mr. Guy, for taking a bribe of 200 guineas, was committed to the Tower, and Mr. Hungerford was expelled for
receiving 20 guineas for his services as chairman of the committees on the Orphans Bill.
I think that that is the kind of service to which my right honorable friend alluded.
Mr. REID.-Yes.
Mr. BARTON.-We read further in MayNor has the law of Parliament been confined to the repression of direct pecuniary corruption. To guard against indirect
influence, it has further restrained the acceptance of fees by its members for professional services connected with any
proceeding or measure in Parliament. A member is, accordingly, incapable of practising as counsel before the House, or
on any committee. By resolution, 26th February, 1830, members of the House of Commons are prohibited from
engaging, either by themselves or by a partner, in the management of private Bills before this or the other House of
Parliament for pecuniary reward.
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50
It is worthy of consideration whether a resolution of that kind is not merely declaratory of the rights of the House. May
goes onNor is it consistent with parliamentary or professional usage for a member to advise as counsel upon any private Bill, or
other proceeding in Parliament.
There is a note referring to a resolution of June, 1858. That note saysBy resolution 22nd June, 1858, 113 C.J., 247, the Commons declared that it is derogatory to the dignity of the House
that any of its members should bring forward, promote, or advocate in this House any proceeding or measure in which be
may have acted or been concerned, for or in consideration of any pecuniary fee or reward.
The ruling of the Speaker regarding the scope of the resolution was reported, but to that report I have not had time to
refer. This is a matter the House of Commons has always dealt with as within the scope of its powers and privileges,
which powers and privileges will belong to the Federal Parliament under a preceding clause-I think clause 8-of the
Constitution dealing with the matter. Under the circumstances, I ask my honorable friend to say whether it would not be
advisable to leave the matter as it stands provided for by the Constitution. He may be quite sure that there will be a
Parliament which will be no less prone to deal with matters of this kind than any Parliament we have any knowledge of. I
confess I am a little doubtful about loading the Constitution with provisions of this kind, which, although when in the
Constitution, are, in one sense, matters of legislation, are really regulations of Parliament on matters which are within its
own particular province, and which Parliament may be well expected to deal with. There never has been any hesitation in
a community with English representative institutions in dealing with matters of this kind. We have seen how these
matters [start page 1947] have been dealt with by the House of Commons, and we have given the privileges of the House
of Commons to the Federal Parliament. I do not think any one of us will anticipate that the Federal Parliament will be
slow to avail itself of its privileges. Is it any more necessary to make provision for a matter of this kind than for a great
many other matters which we may be quite sure Parliament will have under its cognisance, and which, when they are
infringements of proper conduct as illustrated by the history of Parliament, will be dealt with in the way in which the
British Parliament has always dealt with them. I am quite at one with Mr. Reid in his object, but I am rather inclined to
think that the object would be served by leaving the matter to the operation of the Constitution as it is drawn.
Mr. REID (New South Wales).-I must confess that, after listening to Mr. Barton, it is infinitely better this matter
should be settled on the face of the Constitution than that it should come to pass some particular member should be
arraigned before the House for having accepted some such reward as I have referred to. I had in my own mind the history
of the working of the Constitution of the United States. I wish to see put plainly on the face of this Constitution a rule
which all members will have to abide by. If they did not abide by it there would be no plea of not knowing the law, or
anything of that sort. I suggest, in the interests of the working of our parliamentary institutions, that this principle should
be put in if only as a guide to honorable members who might perhaps not think it improper to receive payment for labour
done, say, in connexion with private Bills.
Mr. ISAACS.-If my honorable friend is going to do that, would it not be better to add the words "or corporation"?
Mr. REID.-I will agree to that, and ask leave to amend the amendment so that it shall read "any person or
corporation."
The amendment was amended by leave.
The amendment was agreed to.
Mr. KINGSTON (South Australia).-I would suggest that we should probably carry out what we desire if instead
of specifying on whose behalf anything might be done, we should simply say that any member of the Senate or
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51
House of Representatives who directly or indirectly received payment for labour done or for services other than
those for which an honorarium was provided by the Constitution should be liable to this penalty.
Mr. BARTON.-We have inserted words to that effect.
Mr. KINGSTON.-It would make it just as complete and more effectual if we struck out all the attempted specification
of the persons on whose behalf the work might be done. We should simply impose the penalty if he did work as a senator
or member of the House of Representatives, and took any remuneration which is not provided by the Constitution.
Mr. BARTON.-I will take a note of that matter.
Clause, as amended, agreed to.
CHOSEN
Sir THOMAS McILWRAITH:
There are no conditions stated on which the colonies shall elect their members, and the senate may, and no doubt will,
represent the people quite as much as will the representatives chosen by the people in any other way.
QUOTE
Mr. CARRUTHERS (New South Wales).-I desire to reply to some objections urged to the proposal made by me. I
will take the objections coming from the Hon. Mr. O'Connor, the Hon. Mr. Symon, and Sir John Downer, which have
carried great weight in the Convention. They ask why we should place politicians on a different plane from other
members of the community in regard to insolvency? Why should there be another tribunal to decide their cases? Was
ever a weaker argument used? We know that whenever any member of the legal professions barrister or a solicitorbecomes insolvent, he call go on practising his profession. It is only when in the courts of insolvency he is found guilty
of something amounting to a crime that the court will take away from him the right to pursue his occupation. Take the
case also of a tradesman. If be becomes insolvent be can carry on his business the next day. He has not to wait until he
gets his certificate of discharge. With reference to the public servants in all the colonies, although bankruptcy may cause
a suspension, their offices are kept vacant for them until they have had an opportunity of getting a certificate of
discharge. There is no other class in the community, looking at this argument and taking the reverse of it which is
penalized as members of Parliament are sought to be penalized under this Constitution. Let us look at the matter now
from the opposite standpoint. I will undertake to say that the clause as proposed will do more to undermine the honesty
of public life than would the amendment which I have suggested. We have always heard it said that the poverty of public
men was a great testimony to their honesty. Why was that? It was because these men in public life knew that they would
not be branded as criminals if they did not seek the protection of the laws designed for the poor man. But supposing that
you provide that a man shall absolutely sacrifice his public position if he becomes insolvent there will be a great
temptation to public men who are poor not to have recourse to the protection of the Insolvency and the Bankruptcy
Courts. You at once create a temptation which has never before existed in the public life of most of the colonies. Men
who fear that they are being pursued, not with the ordinary force of the law, but with an exceptional rigour, will have a
temptation presented to them, if they are weak, to adopt questionable means to save themselves from expulsion from
public life. We would not be elevating public life by inserting in the Bill a provision of this character. I should go with
Sir John Downer and Mr. Symon if they proposed that a man who had been refused his certificate of discharge should be
disqualified from holding his seat in Parliament, because the moment a certificate of discharge is refused a stamp of
dishonesty is placed upon the insolvent's business transactions, and that should be a [start page 1941] disqualification.
But here there is no provision of that character, and the clause says that a man is to be deemed guilty before he is tried.
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You cannot within the 30 days, if any political opponent chooses to set the wheels in motion, get a certificate of
discharge.
Mr. TRENWITH.-If he is a good man, would not he be returned to Parliament again?
Mr. CARRUTHERS.-He would; but the Ministry might be dissolved, and the whole state of affairs politically might
be thrown into confusion. Are we to be told that three years afterwards an error, such as I have described, maybe
remedied by the man being re-elected to Parliament? That is too big a price to pay in such a matter as this. I do hope,
therefore, that the Convention will carry this proposal. If Sir John Downer and others who are wavering think that some
protection is necessary, let it be provided in another sub-section that where a man is refused a certificate of discharge he
shall be disqualified from holding his seat.
END QUOTE
QUOTE
Mr. CARRUTHERS (New South Wales).-I beg to moveThat sub-section (3) be omitted.
This clause was very shortly debated on the last evening of our sitting in Sydney. I did not then press the matter to a
division, because so many delegates were absent, but I indicated that I would take an opportunity of having a division in
this session. The object of my amendment is that public men shall not be penalized unduly by a provision which will
disqualify them, perhaps for all time, from holding a position in public life by reason of monetary misfortune. Clause 46,
which follows, I do not intend to amend. It provides that the seat shall be vacated by any member who becomes bankrupt
or insolvent, and then, the seat being vacated, the member will have to go to his constituents for re-election. That is
practically the law in New South Wales, although I believe it is not the law in Victoria. I think it is a sufficient penalty
for a public man that be should resign his seat and go before his electors when he takes advantage of the law relating to
insolvent debtors. It is going too far to say that because a man by misfortune, and owing to circumstances over which
perhaps he has no control, is compelled to seek the protection of the court, he should resign all public offices and
practically retire from public life. What would have happened in New South Wales if we had had such a provision in the
law? We have seen, not on one occasion, but on many occasions, not in regard to one individual, but in regard to many
individuals, men occupying positions as Premiers, whose usefulness has not been questioned, who have been compelled
to have recourse to the protection of the Insolvency Court. These men have resigned their position in Parliament, as they
were compelled to do by the Constitution Act; they have gone to their constituents, and they have been elected or
rejected by the electors, who can judge them in the light of the knowledge they have relating to their insolvency. They
have not had their political careers closed. If there had been such a law as this in operation, we should have had some of
the wisest and best men who ever guided public affairs in New South Wales shut out from public life. We should have
had Ministries destroyed, and men who through misfortune, which, perhaps, was largely attributable to the fact of their
holding positions in public life, would have had their careers of usefulness closed for ever. I invite honorable members
to pay attention to this aspect of the case. If you penalize politicians above all other men, what will happen? Suppose
there is one public man and nine or ten others who become guarantee for a very large sum of money in connexion with
some enterprise. We know that public men are often led into becoming guarantors as directors of companies, and they
become guarantors on account of advances made perhaps for the purpose of pushing forward some enterprise which is
practically for the development of some of the resources of the colony. Such a provision as this would mean that because
there is one man out of ten who has to do something more than pay the debt, who has to stand the risk of losing his
position as a public man, that man is put in a position to be black-mailed. You put him in a position where he alone can
be pushed to an extremity, and a clause of this character would be used by creditors, who might have the opportunity of
looking to half-a-dozen other men who have jointly become security on mortgages, bonds, or guarantees, who will press
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that man alone, because they know that he is the only one against [start page 1933] whom such a lever of destruction can
be used as to deprive him of his position in public life. Honorable members having been associated for many years with
public life will know the bitterness which sometimes attaches to political warfare. Is not this provision the means of
putting a powerful instrument in the hands of unscrupulous opponents? Such a thing would have been done in New
South Wales over and over again if such a provision as this had existed in the law. The career of some of the brightest
and best intellects of the public life of that colony would have been closed. It will be a misfortune to the Commonwealth
if you brand with the stigma of permanent displacement men who, by reason of their services to the country, have
neglected to serve their own interests. It has been one of the highest testimonies to the honesty of public men in
Australia that they have been poor men. It has, perhaps, been one of the greatest sacrifices that public life has ever
entailed in these colonies, where men of intellect, following their professions closely, or developing the resources of the
country, may easily make fortunes, that public men should have thrown aside all these opportunities of advancing their
own interests, and have devoted themselves to the interests of the country, thereby very often bringing ruin upon
themselves and their families. That is a story that could be related over and over again with regard to the public men of
Australia. After having faithfully served their country for many years, most of them, perhaps, have to see in their
declining years poverty coming upon themselves and their families. Now, here it is proposed to place an additional
penalty upon our public men who, perhaps, have to seek the protection of the court through no fault of their own in nine
cases out of ten. Having given up his professional pursuits, and having attached himself for years or for a lifetime to
political affairs, a provision of this kind will place it in the hands of any creditor-a political opponent or otherwise-to
absolutely close the door against that man's future public career by forcing him into the Insolvency Court. The electors
of the country have a right to make their choice, and if they choose to be represented by a man who is compelled
by the necessities of his life to become bankrupt or insolvent, surely it is not our business to take away that choice
from them. A man may be guilty of a misdemeanour, he may have served a sentence of two years for a
misdemeanour, he may have been guilty of some disgraceful offence, yet, under this Bill, that man can be elected.
Yet it is proposed to stigmatize a man who may have to seek the protection of the Bankruptcy Court through being a
director of a mining company, or through being connected with some financial institution which in boom time has
flourished, and has then gone down, dragging others with it. You penalize such a man more than a man who may have
been guilty of a crime. This Bill will allow any drunkard or vagabond in the community to be elected to Parliament; but
you penalize beyond all these men a man who has served his country too well and who has not served himself
sufficiently well, neglecting his own affairs, and thus allowed monetary embarrassment to fall upon him. I trust the
Convention will strike out this sub-section.
END QUOTE
Mr. BAKER:
The facts are that responsible government has arisen solely in consequence of one branch of the legislature usurping all
power. The members of a responsible government may be regarded as a committee chosen by one branch of the
legislature, not perhaps directly, but by a premier who is so chosen, and who follows what he conceives to be the
wishes of such branch of the legislature in choosing his colleagues.
The PRESIDENT: I desire to bring under the notice of the Convention a matter which, I think, should be dealt with at
once before we proceed with our ordinary business. It will be recollected that the Attorney-General of Victoria, the Hon.
William Shiels, subscribed the roll and took his seat on this Convention, under a commission issued by the Governor-inCouncil in the absence of the Hon. Henry John Wrixon, who had been formally elected to a seat on the Convention. It
has been represented to me, not by the Hon. James Munro, the leader of the present Government in Victoria, but by
members of the late Government in Victoria, that it would be very grateful to them if the Hon. William Shiels,
notwithstanding that the number of delegates allotted to each colony would be exceeded, could still be allowed to sit in
the Convention with the understanding that he would not vote in any division. The reason for conceding this much to
Victoria is to me very obvious. By some oversight when the delegates were elected by Parliament, there was, I believe,
no member of the government elected beside the Prime Minister, Mr. Munro, and unless Mr. Shiels be allowed the
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privilege of remaining upon the understanding that he will not take part in the voting, the Prime Minister of Victoria will
be left without a colleague in his government, and it seems on that account reasonable if the Convention can concede so
much that Mr. Shiels should be allowed to remain upon the condition I suggest, notwithstanding that the roll has now
been signed by the late attorney-general, who was formally appointed as one of the delegates.
And
Mr. ABBOTT:
When the election of delegates to this Convention was made by the Victorian legislature, that legislature should have
taken all these matters into consideration, and the inconvenience of there not being a law adviser of the incoming
government here rests, not with the Convention or with the late administration in Victoria, but entirely [start page 129]
with the legislature.
And
Colonel SMITH:
It should be a sort of judicial convention, something more in the character of a body of advice, and I would suggest that
instead of being elected from the general body of the electors in the different colonies, which would be a very costly
proceeding they should be elected by the two houses of each parliament. Take the colonies of Victoria, New South
Wales, or Western Australia, and divide them each into nine electorates, how could any man possibly contest a seat in
such an extensive electorate except at an enormous cost? I do not think that the body which is to be over all the other
parliaments should be constituted in that way. I think that each colony should bring its two houses of parliament
together, and that they should elect the members of the senate. This would not be a costly proceeding, and though the
number of electors, so to speak, would be small, still the senate would virtually be the elected of the people, as we are in
this Convention. We are the elect of the elect, and they would also be the elect of the elect of the various colonies. I
think that is one solution of the difficulty. If this question is to be satisfactorily settled, we must endeavour to find
remedies for the difficulties that are involved.
And
Colonel SMITH:
Now, I think it worth while considering whether we should not adopt some modification of the party system of
government and say, that as the representative house in the dominion is to be elected by the people in the various
colonies-I suppose the representation would be somewhat in proportion to population-the senate and the house of
representatives should join together and elect a government for three years. Surely that is an experiment that might be
tried without much danger. Why should we have party government in the dominion parliament? Why should not a
government be elected to last for three years, a fresh election to take place at the end of that period? I do not see the
slightest necessity for creating two hostile parties in the dominion parliament.
And
Sir GEORGE GREY:
For example, in New Zealand we had promised to us by one ministry a constitution of the utmost liberality. The states
elected their own superintendents who were virtually lieutenant-governors. But the simple name of superintendent being
given disarmed parliament at home and they did not hesitate to give to the superintendents chosen by the people powers
which they would not give to Canada, or did not give to Canada, when the superintendents were called lieutenantgovernors, without having the great powers which the superintendents in New [start page 137] Zealand had. But the
lieutenant-governors were not allowed to be elected by the people of Canada.
And
Sir GEORGE GREY:
The result would be that parties would become more equal, and, probably, nothing less than a civil war would end a
question which might easily, perhaps, have been settled by different legal arrangements. I think, therefore, it will be our
bounden duty to see that the general assembly is not only endowed with certain powers which the states cannot exercise,
but also that an addition be made, as was done in the New Zealand Constitution, to this effect: that whenever the general
assembly of the country, or the congress of the country, chooses to legislate upon any subject, that subject is added to
those subjects which have been withdrawn from the power of the different states.
And
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55
Sir GEORGE GREY:
And that brings me to another point which, I fear, will give rise to some difference of opinion in this great
assembly, and in which I may not carry people with me; but I believe in my own mind that it is essential to you
that every one of your officers should be elected by the people of this country. Even in the case of your governorgeneral I believe the people ought to have the right of choosing who that man shall be. Let them choose him from
England if they please; let them choose him from any part of the world, I would almost say, if they pleased. They
will choose well, they will choose wisely, and no nation can be perfect-unless an imperial nation-a young offset, as we
should be, of an imperial nation, we should not be perfect, unless the people had every office open to their ambition, and
unless it were known that the really great and good men of the country could rise to the highest position, and exercise the
highest duties in it.
And
Sir GEORGE GREY:
Then I would say to this assembly, do not be led away by the idea that the nomination of governor is the only tie
that binds us to Great Britain. If we send home a great portion of our laws for the Queen's assent is not that to
bind us to Great Britain in the most solemn way? Is not that to say that the sovereign of Great Britain is as
absolutely at member of our legislature here as she is of the legislature at home? Her representative, who would
be chosen by the people, would in her name open and close the parliaments and perform all those functions, but
he would be a man chosen by ourselves, and our own people would be educated in the highest possible manner to
discharge their duty to their country.
And
Sir GEORGE GREY:
It does not much matter in what kind of way on the first occasion you allow elections to take place, if the people have
the power of altering that whenever they like. All these things become quite minor questions if you just hold in view
these several matters, that the states-each state-shall have the power of modifying its form of government whenever it
likes; that, for instance, neither the states nor the general body is to be told that "you must conduct your form of
government according to the principles of what they call a responsible ministry." Why should that be told to them? Why
not let them conduct their form of government precisely as each age chooses?
And
Sir GEORGE GREY:
Let us say that if the English-speaking people choose to federate in one great body we shall not ask what that form of
government is.
And
Mr. RUTLEDGE:
He combated the idea of a second chamber having the right to veto any proposed legislation of the lower
chamber on the ground that that chamber uttered the voice of the people, which had a right to be heard. Will not
the voice of the people be heard in a senate which is composed of men who are as much elected by the people,
though it may be in a different mode, as in the house of representatives itself? The history of the various legislative
councils of these colonies is fraught with caution against the attempt to establish anything in the shape of a second
chamber that will not rest upon the suffrages of the people. The reason why there have been dissensions and deadlocks in
connection with the upper chambers in the various colonies is this, that these upper chambers have not in any respect
derived their authority from the people in the same way as the lower chamber has. They have either not been elected by
the people at all, or else have been elected by the people upon the basis of some special property qualification; and
nobody can contend that a body of that sort is a body that can be said to represent the people, or which ought to be
intrusted with powers co-ordinate with those that belong to the other branch of the legislature.
And
Mr. RUTLEDGE:
What is perhaps stranger, the two branches of Congress have not exhibited that contrast of feeling and policy which
might be expected from the different methods by which they are chosen.
And
Mr. RUTLEDGE:
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56
But, sir, I would like hon. gentlemen to bear in mind that I am very far from advocating for the federal parliament-which
I hope will grow out of the labours of this Convention-a second chamber which shall be elected, as the members of the
second chamber in the United States are elected, by the combined vote of the upper chamber and the lower chamber of
the states legislatures. That might be a very good method, but with some of the constitutions of these colonies as they are
at present, it might not perhaps be all that could be desired. Many of the second chambers in the colonies being
nominated chambers, and not elected, and in the case of those that are elected not being, elected by the suffrages of the
people generally, it might very fairly be said that the members of the senate, though elected by the legislatures of the
colonies as they exist at the present time, would not be truly representative of the people, and that therefore there is some
reason why we should not proceed to construct the senate after the model of the American Senate, possessing co-ordinate
powers with the lower house, or the house of representatives. But I am not at all wedded to that principle, and I should be
very sorry indeed to advocate from my place in this Convention a system by which the second chamber shall be founded
exclusively upon the methods which are suggested by those who contend that the members of that second chamber shall
be elected by the legislatures of the several colonies as they exist at present.
And
Mr. KINGSTON:
I do not know whether it is intended in the federal constitution to provide for a uniform system as regards the election of
the senate. For my own part, I venture to consider that any such attempt would be a mistake, and that we shall be
doing best if we allow the people of the various states to provide such means as are acceptable to them; and it appears to
me also that it would be absolutely impossible, if we attempt to lay down a uniform system, to deprive the people of the
states of the right of appointment by their direct vote. I think it would be a very great invasion of the popular rights
possessed by the inhabitants of any particular colony if the federal constitution were to provide that they should not
exercise their right of election in such a way as would make the persons elected their direct nominees by the popular
vote. And I would like to say in this connection that we have had some experience of the difficulties attendant on any
attempt to secure uniformity in the appointment of federal senators. No doubt if uniformity were attempted, and it were
not generally provided in the federal constitution that senators should be elected directly by the people, some such
course would be considered desirable as obtains in other countries where they are elected by members of both branches
of the legislature. But as has been pointed out by the hon. member, Mr. Rutledge, varying circumstances affect the
constitution of the second chamber in different colonies, and whilst in some colonies it might be considered a desirable
thing, to confide to the two houses the power in question, particularly where the second house is elective, a similar
remark might not apply to other provinces, where the second chamber, as has been mentioned, is differently constituted.
This question was discussed not so very long ago, in 1889, in the Federal Council, where there were present
representatives of all the colonies of Australia except this great colony, and the result then unanimously arrived at after
most careful consideration was as follows:The committee carefully deliberated on the question of a uniform system for the selection of representatives from the
different colonies, but are unable to recommend any system. Considerable advantage would probably result from
uniformity; but the differences in the constitution of the parliaments of the various colonies render objectionable the
uniform system of election by members of Parliament; and in the opinion of the committee it is not yet practicable to
require the election of representatives by constituencies of the people. Moreover, as the chief [start page 159] object of
any system must be to secure the representation in the council of each colony in the manner most satisfactory to the
people, it appears to the committee that that object will be attained by continuing the present unrestrained right of the
people in each colony to decide the matter for themselves through the local legislatures.
And
Mr. KINGSTON:
The periodical elections, it appears to me, will have such an effect; but I have heard a further suggestion, that it might be
provided in the federal constitution that in the case of at penal dissolution of the assembly a certain proportion of the
senators might be sent to the country.
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57
And
Mr. KINGSTON:
There is a provision in the Swiss constitution which requires that no two members of the executive shall be selected from
the same canton at the same time.
And
Mr. FITZGERALD:
A parliament, to consist of a senate and a house of representatives, the former consisting of an equal number of
members from each province, to be elected by a system which shall provide for the retirement of one-third of the
members every years, so securing to the body itself a perpetual existence combined with definite responsibility to the
electors, the latter to be elected by districts formed on a population basis, and to possess the sole power of originating
and amending all bills appropriating revenue or imposing taxation.
I ask where is the point of the remarks we have heard about the necessity of the members of the senate representing the
states in equal proportions being elected by the people, being responsible to the people, being liable to be sent back to
the people if ever they dared to exercise the privilege of disagreement with the more popular house? So in these
observations could well have been delayed until the hon. gentlemen who indulged in them go back to their own colony,
where they can use them with the weight and influence which, I have no doubt, they will command, after their colony
has settled and determined in what form its representatives shall be elected. It is wasting time, I say, with all respect, for
us to be reasoning when each colony will be master of the form in which that election shall take place. I have my own
conviction as to what should be done, but I shall not trouble hon. gentlemen by stating it. I only do what I am sure every
member of the Convention does, and that is to offer a most fervent prayer that whatever form of election may be decided
upon the men appointed will be worthy of the high position to which they will be raised. Let them appoint them how
they will, I, sir, from a long experience of a particular house, know that when they enter the chamber they will come
under its traditional influence: they will recognise the responsibility of their position, and the greater the responsibility
and the higher the stan- [start page 171] dard which you expect these men to reach the more certain will you be to get the
best men.
And
Mr. FITZGERALD:
Let the small states consider that when they go into the representative house, and they are at the mercy of the more
populous states, election being according to population, some taxation proposals may be brought forward.
Mr. WRIXON:
Any upper house may lay aside any bill, or mud a message down to the lower house, and request it to be amended, and if
the lower house chooses to amend the bill it may. Therefore, my people's rights friend, you need not be alarmed-it is
nothing but the ordinary law."
And
Mr. WRIXON:
But the form in which ministers are to be appointed, I think, wants a little consideration, because it involves a very
serious point. In clause 4 of chapter 11, page 13, it is provided:
For the administration of the executive government of the commonwealth, the governor- [start page 540] general may,
from time to time, appoint officers to administer such departments of state of the commonwealth as the governorgeneral in Council may from time to time establish, and such officers shall hold office during the pleasure of the
governor-general, and shall be capable of being chosen and of sitting as members of either house of the parliament.
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And
Mr. MARMION: I do not allude to the committee, but to the distinguished assembly which appointed the committee.
One would imagine that the select committee would act in the manner which is usual when a deliberative body is
selected by a greater body. In this particular case it seems curious that the word "commonwealth" was chosen. . I can see
no reason why we should try to originate a newfangled idea with reference to the denomination of the new federated
Australia that we are seeking to form. Why should not the word "Australia" be used in its pure and natural simplicity?
We are all either native-born Australians or we have chosen Australia as the land of our adoption, and when we visit
other lands we speak of Australia as our home.
And
Mr. MARMION:
I say it is our duty here as statesmen, supposed to represent the intelligence, rising genius, and talents of this young
country, to beware of those old associations and ideas which may cause discord in the minds of those who are
endeavouring to form this great nation. I should be sorry to see this word chosen, and I trust that it will not be chosen, no
matter how euphonious it may be, no matter how beautiful its meaning may seem in the various dictionaries which hon.
members have been quoting. I trust that we shall choose a name that will be simple and easily understood-something that
can be regarded with confidence by Australians and the world, and recommend the adoption for its simplicity of the
"Constitution of Australia."
And
Sir GEORGE GREY:
The terms used are "the Queen shall appoint"; but we all know perfectly well that that means that the minister
for the time-being shall appoint such person as he pleases, whilst such appointment might be absolutely obnoxious
to her Majesty herself. The meaning of the thing is that a friend or any other person chosen by the minister may
be appointed without the people of this great confederacy being in any way consulted. I understand that the
reason usually alleged for that by persons who support the appointment being made by the Queen is that a social
appointment is to be made. That is the term usually applied-it is a social question, and not a political question. I
contend that the question is twofold, and those two things cannot be separated. The governor has political functions to
exercise and he has social functions to exercise, and in either case I hold that a person so appointed is much less
fitted to exercise those functions than a governor-general chosen by the people of the country would be.
And
Sir GEORGE GREY:
. I say that, looking to our duty to our Sovereign, we owe it to her to select the worthiest man we know to
represent her here-to be certain that the man so chosen is worthy to represent her; and in no other way than by
his being chosen by ourselves from people whom we know can we be certain that the worthiest man will be chosen
to represent the Queen within the limits of the great confederacy which we are about to constitute.
And
Sir GEORGE GREY:
let us, at the very first, indicate in this clause that this great office shall be open at all times to that man in
Australia who is deemed the greatest, and worthiest, and fittest to hold so noble a post, and to satisfy his fellowcitizens that they have wisely chosen one who will be an honor to the whole community. Can any of us believe that
if at the time of the disturbances in the United States in regard to slavery a man had to be chosen by the British ministry
of the day in London, there was the slightest hope that such a man as Lincoln would have come to the front to achieve
the great and noble objects which he accomplished?
And
Sir GEORGE GREY:
So long as there are governors-general sent here from England, so long, I believe, there must inevitably be what is called
an aristocratic British party resident in Australasia, [start page 569] who never will cease attempting to carry out their
objects. Such is almost a necessity of the case, and I firmly believe that those who say that the people here are worthy to
choose their own governors, and ought to have the power, are those who are fighting for the cause of Great Britain and
for the union of the colonies with Great Britain for a long period of time.
And
Sir GEORGE GREY:
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59
I believe that the presence of such a person in the state would be infinitely more injurious to it than would be the
presence of an elective governor chosen by the people of the country.
And
Mr. ADYE DOUGLAS: It is well understood that the powers of the House of Commons are just what they choose to
declare them to be. There is nothing fixed nor definite; and a parliament such as ours ought not to have power to declare
what its powers are, and to extend those powers as the House of Commons may do.
And
Clause 9. The senate shall be composed of eight members for each state, directly chosen by the houses of the
parliament of the several states during a session thereof, and each senator shall have one vote.
The term for which a senator is chosen shall be six years.
Mr. WRIXON: With regard to this clause, I wish to say that I will not propose that it be postponed, because that
would lead to inconvenience with regard to other clauses; but I would observe that, when we come to determine the
position and powers of the senate, if there should be a majority in the Chamber to give the senate large powers-certainly
any larger than are now contained in the bill-we must go back upon the clause and reconsider it; because it will never do
to give equal representation to the smallest, as well as to the largest states, if the senate is to be a large and determined
power in the constitution. In passing the clause now without challenge, I wish to observe that we leave it open to go back
to it after we have settled the constitution of the senate.
Sir SAMUEL GRIFFITH: I have an amendment to propose in the clause. There is no mode of returning the names of
the senators as chosen by the governor-general. Certainly a provision of that kind must be inserted.
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Sent: Tuesday, December 06, 2016 3:15 PM
Subject: News - Culleton in fight against (unconstitutional) terror reign - The West Australian
The link is a MUST watch for all. People Australia wide need to rally to the support of Culleton and
the One Nation Party. They are being attacked for standing up to Political and judicial tyranny in
Australia. This is the people's chance to clean up the shysters in this country.
------ Forwarded message -----From: Tony Rigg
Hi All, must read. Tony
https://au.news.yahoo.com/thewest/wa/a/33270424/culleton-in-fight-against-terror-reign/#page1
CULLETON IN FIGHT AGAINST TERROR REIGN

Andrew Tillett, Canberra - The West Australian on November 21, 2016, 12:30 am
One Nations WA senator Rod Culleton will try to save his political career by alleging Australias parliamentary and
judicial institutions have been acting in breach of the Constitution for decades.
Far from being cowed by appearing before the High Court, Senator Culleton is relishing the chance to use it as a
platform to air all his grievances with politicians, police, judges and bankers.
In his four-page submission to the court, he claimed Canberra had allowed a reign of terror to be unleashed by
armed SWAT teams on political opponents, banks had been able to strip assets from hardworking Australians, and
States were charging illegal drivers licence fees.
Senator Culleton said the Federal Governments case against him was doomed to fail. This is not going to be as clear
cut and dried like (Malcolm) Turnbull thinks its going to be, he said.
The senator will appear and represent himself at todays directions hearing befo re Chief Justice Robert French.
Senator Culleton is seeking an adjournment because it clashes with a parliamentary sitting day.
The Senate referred Senator Culleton and former Family First senator Bob Day to the High Court, sitting as the Court
of Disputed Returns, because of doubts over whether they were constitutionally eligible to run at the July 2 election.
At the time Senator Culleton had been convicted of larceny over the theft of a tow -truck key, a conviction later
annulled.
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Senator Culleton claimed that since 1991, when Parliament was renamed the Parliament of Australia, legislation had
been enacted with no reference to the Queen.
Because the Queen has been removed from the enacting words of the Parliament of the Commonwealth a reign of
terror for which only physical violence or the threat of it, and the good common sense of SWAT teams and police
called upon to commit proxy violence in the name of banks, financiers and non -compliant courts, created by the States
on any individual or family or corporation that dared to make a political protest, causing suicides, family break -ups,
destruction of the family unit and immense heartbreak to thousands of committed hardworking Australians, he wrote
in his submission.
Senator Culleton wrote a selective, isolated, elitist High Court had made it harder for ordinary people to get cases
heard, while accusing the States of breaching the Constitution by imposing stamp duty and tax on the right to drive by
selling driving licences.
END QUOTE 6-12-2016 EMAIL
QUOTE 20 November 2016 purported submission of Senator Rodney Culleton

22 Nov 2016 Sen Culleton was listed to have appeared before HCA yesterday, 21 Nov 2016.
High Court & Government put on notice
20 Nov 2016
He has decided to make the most out of this turn of events and has put
forward some serious questions in his submission to the High Court.
"A correction to the system is coming and if the Senate want to
question my eligibility, I will use the opportunity of appearing in the
High Court to in turn put forward questions regarding the validity of
the Parliament and High Court," he said.
Senator Culleton has been sent to the

High Court regarding the eligibility of
his election to the Senate.
"The judiciary expects everyday people to follow the laws but they
must first set an example and do the right thing when they are in
positions of leadership."
"People are committing suicide and losing their hard earned property
due to our courts. Australians are hurting and it simply is not good
enough."
Below is Senator Culleton's submission to the High Court which is
backed up by evidence, laws and the Constitution - it is not 'bizarre' or
'conspiracy' as the media have reported, it is FACT.
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SENATOR CULLETON'S SUBMISSION TO THE HIGH COURT

IN THE HIGH COURT
IN THE MATTER OF CULLETON.
COURT OF DISPUTED RETURNS.
The respondent, Rodney Norman Culleton, a Senator duly elected for the State of Western
Australia makes the following submissions in support of an adjournment:
1. In Breach of S1 Constitution since 1990 in Act no 138 of 1900, it appears the Parliament of the
Commonwealth has not been constituting itself with the Queen, and renamed itself without a
Referendum the Parliament of Australia.
2. By S 32 Judiciary Act 1903. (Cth) now we are in the High Court on one matter on referral from
the Senate, all the grievances, I have with the Government of Australia can and must be aired
and all such remedies shall be granted to the respondent as it appears to be just. Consequently
this submission is substantial.
3. That renamed Parliament of Australia appears to be held in contempt by the Judges and
Magistrates of Australia after it started, on the 8th January 1991, enacting Legislation as The
Parliament of Australia enacts. Because the Queen has been removed from the enacting words
of the Parliament of the Commonwealth a reign of terror for which only physical violence or the
threat of it, and the good common sense of Swat Teams and Police called upon to commit proxy
violence in the name of Banks, Financiers and non compliant Courts, created by the States of
Australia on any individual or family or corporation that dared to make a Political protest
causing suicides family breakups, destruction of the family unit, and immense heartbreak to
thousands of committed hard working Australians.
4. One such Court in my personal experience is the Supreme Court of Western Australia which
appears to have been constituting itself with a single Registrar and making orders to be executed
by the Bank's agents including the Police, without a trial or any proper judicial proceeding under
Order 62A R4(1) Supreme Court Rules of Western Australia, even if the victim is in Court as I
was, Registrar Whitbread made orders giving a shell lender possession of another entity of my
own personal property and other third party assets which had nothing to do with the case. Under
the guillotine Order you only have three days to Appeal which has recently been extended.
Under this Order the WA Supreme Court had shut its doors preventing me from having my case
heard.
5. The seeds of this disastrous failure in the delivery of peace order and good government started in
1952 when the High Court Rules 1952 were promulgated and approved by somnolent and
irresponsible Parliament allowing the so called High Court to depart from the promised and
mandated Federal Supreme Court to a selective, isolated, elitist High Court with power given to
a Registrar and a Judge sitting alone, not the minimum of three Justices, mandated by S 71
Constitution, and without a hearing, just on the papers, to refuse access to the High Court as it
now calls itself.
6. The Original published version, of the High Court of Australia Act 1979 as published in 1979, while
outside the scope of S 71 Constitution, did in fact have the proper enacting words, but the latest version,
obtained from the Table Office in the Senate has no enacting words at all in it. It is no wonder Banks,
Trustees, their liquidators, receivers and agents have been able to use the Supreme Court of each State to
get arbitrary orders stripping the assets of hard working Australians and giving them with the help
of Armed Swat Teams, to the legal thieves, condoned by the State Governments of Australia.
7. This should never have been allowed to happen but for a series of incompetent,
hopeless, Attorneys-General in both the Commonwealth and in the States. Who have been
delivering law but not justice, since 1991, using armed swat teams, created as a Private Army by
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every State mostly from ex Army personnel, trained in assault weapons, in breach of S 114
Constitution.
8. These 150,000 odd strong armed organisations one in every State have been protected since 1983,
by the Commonwealth Director of Public Prosecutions, who since 1983 has had the power to
deliver protection from the application of the common law and Part III Crimes Act 1914
(Cth) by Complaint and Summons in a Magistrates Court in the State of Victoria, Queensland
and New South Wales and in Western Australia, by using S 9.5 Director of Public Prosecutions
Act 1983 to take over and discontinue any proceedings started by a person authorised by S 13
Crimes Act 1914 (Cth) or S15F Crimes Act 1914 (Cth) and deny access to justice to aggrieved
Australians unless their Political Masters, in whatever Government happens to be in power,
directs.
9. An physically intimidating thug in a 550 horsepower Tow truck came to a property unannounced I
was leasing in Guyra, without any paperwork, or other documentation or identification. He
attempted to repossess a company vehicle by force ,and I physically resisted him on his failure to
leave, and we had a fight about it. The individual was adamant he was coming in, and in order to
stop him stealing or trespassing I switched his idling truck off, and removed the single key from
the ignition. The thug started punching me, I punched back, and during the altercation, the key
allegedly got lost, although he could have put it in his pocket. I was not worried about a key but
where I would land my next punch. I was searched but he was not.
10. He alleges that he hot-wired this Turbo Charged Truck and got it going but since modern trucks have
several layers of protection against theft, he almost certainly had the key. He drove away.
11. On the 12th September 2016, in the Senate I raised as an Issue for the Senate to consider, the
fact that since the High Court Rules 2004, no longer issued process in the name of the Queen the
High Court was out of order, and in contempt of Parliament, as 33 High Court of Australia Act
1979 mandates that Process be issued in the name of the Queen.
12. In fact it has been out of order since 1952, when Order 58 rule 4 Subrule 3 was approved by the
Parliament of the Commonwealth and this malpractice continued in the High Court Rules 2004
in Rules 6.5, 6.6 and 6.7. which means no political pressure relief valve through the courts, and
revolving door government.
13. In fact the High Court and Attorney-General were informed by action in the County Court in
Bendigo in 2006, over ten years ago, and used the Australian Government Solicitor and political
pressure on the County Court in Victoria to overturn a Default Judgment entered against the
Commonwealth in that action by one Judge Davis. The State of the Judiciary in Victoria being
hopeless since 1986, no further action was taken by the Community Law Resource Group but
the paperwork, letters from the High Court Registrar, the Office of Legal Services
Coordination the Writ and most of the paperwork, is still available for filing.
14. The High Court is authorised to make Rules for the purposes of carrying into execution, the
purposes and objects of the Judiciary Act 1903 by S 86 Judiciary Act 1903. It has been granted
original jurisdiction under S 30 Judiciary Act 1903 to try on indictment any offence against the
Laws of the Commonwealth.
15. To achieve this, requires Rules providing for Grand Juries, to investigate and commit to trial
offenders caught offending against the Laws of the Commonwealth, but neither the High Court
Rules 1952, nor the High Court Rules 2004, contain Rules to facilitate this very important
function of a Federal Supreme Court no matter what it is called. Breach of Statute Law was
always an Indictable Offence at Common Law, but without access to the High Court or rules that
regulate such a proceeding, the State Governments of Australia may have embarked on a reign
of terror against the subjects of Her Majesty Elizabeth the Second living within their borders.
16. In Breach of S 90 Constitution which gives exclusive jurisdiction over Excise to the
Commonwealth, State and Territory Governments have levied an internal taxes including
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vehicles, property and transfers, a tax on the right to drive by selling driving Licences, acquired
private property without paying compensation, all taxes and actions that are absolutely
prohibited to the Queen, unless legislated for in Her name, with the consent of both Houses of
Parliament.
17. In New South Wales where the incident prompting this referral to the High Court occurred the
Parliament of New South Wales in 1970 legislated to give a rules Committee of nine Judges
power, under S 6 Supreme Court Act of New South Wales power, by Rules of Court to overrule
any prior inconsistent Act, including the Commonwealth of Australia Constitution Act 1900 and
Constitution, thereby depriving the Australians in New South Wales of the protection of a court
of Judicature as required by Ch III Constitution.
18. In 1986 an Oxymoron of an Act was agreed between the States and Commonwealth that both
abolished the Australian Constitution and continued it and the Australian Courts Act 1828. This
inconsistency was presented to the High Court by Senator Len Harris of Pauline Hansons One
Nation around one year prior to the election where he was defeated, and it was rejected under
Order 58 Rule 4 Subrule 3 High Court Rules 1952, and this capricious and unreasonable conduct
by the Registry of the High Court and the Judges of it has resulted in Revolving Door
Governments in every State and the Commonwealth since 1952.
19. It appears to be clear the Family Court of Australia has never required the Judges of that Court to
swear Allegiance to the Queen, and as a consequence it puts a big question over its legitimacy,
never been legitimate, because Allegiance to the Queen is the cornerstone of representative
democracy, because the Queen, before She can assume Office, must take an Oath Herself, and
that Oath incorporates the Principles of Protestant Christianity into the fabric of society.
20. Those principles are:
(a) That no one shall be subject to arbitrary judgment by one individual over another.
(b) No one shall be compelled to worship false gods.
(c) Only a panel drawn from the electoral Roll, comprising more than one, can find a verdict or
the truth.
(d) No one shall be the slave of another and all persons shall be equal before Almighty God, and
therefore the Law.
(e) A conscience of Almighty God is exercised by the Queen in all her judgments, and the
Conscience of Almighty God is called equity, and it was exercised by the Archbishop of
Canterbury as Chancellor of the Exchequer, in the Chancery Court until 1873, when the Court
of Chancery and Courts or Law were amalgamated, to make the courts of Judicature.
21. The Court of Chancery as the conscience of Almighty God was charged with executing and
maintaining the Statute Laws of the Realm, and it was a simple matter of a pleading of Statute in
that Court to instil respect in the deliberations of the Parliament. As a safeguard, the principles of
the Magna Carta were observed by that court and all parties since 1275, and the Statute of
Westminster the first, had the right to elect mode of trial: at Bar before Judges or with a jury of
their peers.
22. The Principals outlined in Paragraph 18 above are incorporated into the International Covenant
on Civil and Political Rights. As Schedule 2 to the Australian Human Rights Commission Act
1986, by s 13 Acts Interpretation Act 1901 this is law, but its application has been frustrated by
Judges and Magistrates whose allegiance to the Queen must be questioned, because it was
enacted properly in 1986 at the same time as the Australia Act 1986 gave the States a licence to
do as they pleased to Parliaments in every State by removing Judicial Review as envisaged by
Alfred Deakin in the second reading speech to the Judiciary Bill 1902.
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23. Without Judicial Review as a right to peace order and good government no one can truly live in
peace in this country, because if he does anything at all to upset a government official, a nasty
vindictive Judiciary will be engaged to attack him.
24. To protect Parliamentarians, who under Parliamentary Privilege may bring the grievances of the
people to the Parliament S 14 Parliamentary Privileges Act 1987, one of the Acts properly
enacted before 1990, is enacted and it provides that no Parliamentarian shall be required to
attend before a court or a tribunalon any day:
(c.) on which the House of which that member is a member meets.
(e.) which is within five days before or five days after a day referred to min Paragraph (c.) or
(d.)
Consequently on the above submissions, I humbly request that the hearing be adjourned to another
date and time agreeable to both parties.
Signed
Rodney Norman Culleton proudly Representing Western Australia in the Commonwealth
Senate.
END QUOTE 20 November 2016 purported submission of Senator Rodney Culleton
As to the part:
QUOTE 20 November 2016 purported submission of Senator Rodney Culleton
16.
In Breach of S 90 Constitution which gives exclusive jurisdiction over Excise to

the Commonwealth, State and Territory Governments have levied an internal taxes
including vehicles, property and transfers, a tax on the right to drive by selling
driving Licences, acquired private property without paying compensation, all taxes
and actions that are absolutely prohibited to the Queen, unless legislated for in Her
name, with the consent of both Houses of Parliament.
END QUOTE 20 November 2016 purported submission of Senator Rodney Culleton
This is not completely correct as the difference is if a service is provided and charges relating to
this service is appropriate to the cost associated with providing the service. As the Framers of the
Constitution made clear, such as with harbour fees, the states were entitled to charge for harbour
fees provided it was not in excess of the real cost.
QUOTE
Mr. HENRY: I would like to ask Mr. Barton what effect this would have on several Marine Boards and
Harbor Trusts of the colonies which are dependent for their revenues on tonnage rates. This clause, I see,
provides that no tonnage duty should be imposed except by Commonwealth. What position, I would like to
know, would the various Harbor Trusts and Marine Boards, which are dependent for a portion of their
revenue on these tonnage dues, occupy till the Federal Commonwealth has had time to legislate upon this
matter.
Mr. BARTON: If the tonnage dues are not an infringement upon the principles of intercolonial freetrade, I
take it that they would remain in force after the establishment of the Commonwealth; but if the State
proposed to take in hand legislation on the subject, it would not be permitted to legislate on that subject
without the consent of the Parliament of the Commonwealth.
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Mr. HIGGINS: If it were only an amendment?

Mr. BARTON: Possibly the only trouble there would be, that a period of six months would elapse before
the Commonwealth Parliament was called together after it is established. So far as the tonnage dues,
mentioned by Mr. Henry, did not infringe upon the principles of intercolonial freedom of trade, there would
be no difficulty.
Mr. GLYNN: I think the last few words of this clause are too comprehensive in their meaning. In South
Australia there is a lot of land which is leased with the right of purchase, and I can see that under the latter
portion of this clause there is considerable danger of defeating the effect of direct taxation.
Mr. O'CONNOR: In a case of that kind the reversion which is in the Crown would not be taxed, but the
letting value would be taxed.
Mr. BARTON: I might mention that the property of the Commonwealth in that land is the reversion upon
the lease. The reversion upon the lease would not be [start page 1002] taxable, but the interest of the
lessee in the property would be taxable.
Mr. GLYNN: I am only pointing out a difficulty that might arise.
Mr. HENRY: I would like to raise a question as to the right of the Commonwealth to tax materials for
State purposes. In the event of a colony importing rails, machinery, engines, &c., for State purposes, I
would like to know whether such exports are to be free from Customs duties. Will the Federal Parliament
have a right to levy duties on materials imported for State purposes?
Mr. BARTON: This is a matter that was discussed very fully in the Constitutional Committee, and I think my
hon. friend Sir George Turner will remember that I consulted the members of the Finance Committee upon
it, intimating to them the opinion of the Constitutional Committee on the point. The words:
Impose any tax on property
do not refer to the importation of goods at all, and any amendment to except the Customs would be
unnecessary. This clause states that a State shall not, without the consent of the Parliament of the
Commonwealth, impose taxation on property of any kind belonging to the Commonwealth, meaning by that
property of any kind which is in hand, such as land within the Commonwealth. That has no reference to
Customs duties.
Sir GEORGE TURNER: Will articles imported by the States Governments come in free?
Mr. BARTON: The question then arises whether articles imported by the States Governments are to
come in free, but this section has nothing to do with that. Under this Bill and in the measure of 1891 I
believe duties would have been collectable upon imports by any State, and after the consultation which I
had with the hon. member and his colleagues on the Finance Committee the Constitutional Committee
decided not to make any exemption in the case of any State.
The CHAIRMAN: I would ask hon. members to confine themselves to the discussion of this clause.
Sir GEORGE TURNER: I propose to carry out your desire, Sir, to restrict my remarks to this particular
clause. In Victoria, as I mentioned the other day, we have an independent body called a Harbor Trust, which
collects a large amount of money and, as far as I can recollect, does it in the way of tonnage dues. If we pass
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this clause, and we deprive this body of its revenue, they will simply have to fall back upon the Government
of the State. What is the meaning of the phrase:
Impose tonnage dues?
According to the way I read the clause it means that it is not to pass any law which would put on any fresh
dues.
Mr. MCMILLAN: I suppose the States gave these rights to the harbor trust.
Sir GEORGE TURNER: The State passes a law constituting a Harbor Trust and gives over to them the right
to collect these various revenues. What I desire is to preserve that right, whatever it may be. I am in great
difficulty as how this particular clause will affect that body, as well as similar bodies in other colonies which
collect small sums. I would be glad if my hon. friend Mr. Barton can give me any assistance with regard to
this matter, and tell us if this clause will or will not interfere with this existing body. If that be so I shall be
prepared to let the clause pass, and then, before the adjourned Convention is held, we shall have an
opportunity in the different colonies of ascertaining how these dues and rates are collected, and how this
clause will affect them, and whether we should make this amendment. In the meantime I should like Mr.
Barton to give me the real meaning of the clause.
Mr. BARTON: As far as I can gather from this clause and the clause of 1891, it seems to me to refer to any
future legislation on the subject:
The State shall not impose tonnage dues.
[start page 1003]
The question of whether existing legislation would be invalidated would depend, first, upon whether the
dues were an infringement of the equality of trade throughout the Commonwealth, and next upon
whether the Commonwealth passed a law which-if it were in the province of the Commonwealth to past; itwas in conflict with the law of the State, in which case, to the extent of the difference between the laws, the
law of the Commonwealth would prevail if section 98 were passed. It deals only with future legislation, I
think. but these tonnage dues may incur a prohibition if we find that they are a system of taxation,
because the Parliament of the Commonwealth has power to raise funds by any method of taxation. If the
method of carrying out that power were found to be in conflict with the law of the State, the law of the
Commonwealth would prevail. We have no provision for the Commonwealth taking over harbors or harbor
works, and it may be a question for consideration whether the Commonwealth, as it has power to legislate
on other subjects relating to the regulation of commerce and trade and so on, should not take over harbor
works too. That is what, on the face of it, seems to me to be the effect of the clause.
Mr. MCMILLAN: I think these tonnage dues must be excepted if the Parliament is to take over harbors.
Tonnage dues are simply payment for services rendered, and they do not practically come under the system
of taxation at all. They are levied for something done. If they are not excepted great trouble will ensue,
especially in regard to corporations. Is that System referred to by Sir George Turner administered by a
Minister of the Crown?
Sir GEORGE TURNER: No.
Mr. MCMILLAN: Does it apply then? These. are dues paid by the State as a State, but the case mentioned
is one of a corporation, in which there is a payment for services rendered. Tolls are exacted for the
services, call them dues or wharfage rates or whatever you like; they are the same in essence.
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Sir GEORGE TURNER: If we do not guard against it corporate bodies may evade the Act, and the State
may appoint corporations to do work so as to evade it.
Mr. MCMILLAN: Something will have to be done or great trouble may ensue.
Mr. BARTON: With reference to the question of wharfage rates, members will recollect that the United
States Constitution contains a prohibition against the State levying tonnage duties without the consent of
Congress. It has been decided in the case of the Packet Company v. Catlettsburg, 105 U.S., 559:
A city or town on a navigable river may exact a reasonable compensation for the use of the wharf which
it owns without infringing the constitutional provisions concerning tonnage taxes or regulations of
commerce.
That would appear to be rather in favor of the exemption of the harbor trust.
Mr. HENRY: It is within my own knowledge that there are Marine Boards in Australia, at all events in
Tasmania, worked as State departments. They are nominee bodies with a Minister practically at their head.
Mr. HIGGINS: Who gets the money?
Mr. HENRY: The Customs officers collect the wharfage and tonnage dues, and they pass into the hands of
the Government. I would like to ask Mr. Barton how it would operate in cases where the tonnage rates vary
at different ports in Australia? We might have one harbor with a particular rate and another with double or
treble that rate, so that we would not have an equality of trade. This is one of the difficulties which Mr.
Barton. and others, in considering this matter, should have placed before them. In this clause we are going
to hand to the Federal Government the right to legislate with regard to tonnage dues, and it is desirable
that we should know precisely what we [start page 1004] are doing and how it is going to affect the various
harbor trusts and marine boards.
Mr. BARTON: On considering the matter, I think that the tonnage dues mentioned here-we have altered
the word "duties" into "dues," and they seem to me like the word "tonnage dues" that used to prevail in the
the old country, such as tonnage dues on wines. We find the word referred to in Acts 9 Anne, and 10
George IV. They were tonnage dues granted to the Queen, and I think those referred to here were the same
in the United States Constitution. Whether that be so or not, the tonnage dues referred to in the clause
seem to be charges for services performed. For instance, a Harbor Trust is formed and carries out
improvements and as a means of recouping themselves the harbor authorities charge dues. Wharfage
dues are for the use of a wharf and have they not a similar meaning in the modern acceptation of the
term? One is an impost for the use of a wharf, the other for the use of a harbor on which money has been
spent for the purpose of rendering it more adapted for shipping. If that is so the words may be left out,
and if they are left out any tonnage due which is not a charge for services performed would be an impost
interfering with the freedom of trade and intercourse, and would come under section 86; that is to say, as
soon as uniform duties have been imposed, trade and intercourse shall be absolutely free, If they
interfere they could only do so so far as they are of the nature of taxes. If they are only charges for
services performed, as I explained in connection with clause 83, then there can be no objection to them.
because charges for use of a wharf are much in the same position as charges of the post office authorities
for the carriage of letters; they are payments for services. If that view is taken I shall offer no objection to
it.
Sir GEORGE TURNER: Why not for post and telegraphs?
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Mr. BARTON: Any mere service that the Commonwealth does not take over is still in the hands of the
State. Clause 86 can only be infringed by something which means an interference with the freedom of
trade and intercourse. Anything that is fairly construable as a payment for services performed is not
handed over-the mere service can be charged for as before, because it is not an interference with trade
and intercourse. In such cases as that, mere service can be charged for as before, because it is not an
interference with trade or intercourse. I think we may well accept that view and leave out the words:
Impose tonnage dues or.
I move that they be left out.
END QUOTE
What this means in my view is that where for example VicRoads itself advertises that
registration include the cost of number plates, then why is the renewal of registration not any
lesser where no number plates are issued. Indeed, considering that VicRoads charges about
$100.00+ for lost numberplate, then if this is the real cost to manufacture and provide a
replacement number plate then why is the renewal of registration not reduced accordingly with
this cost?
Also, considering that Trade & Commerce law enforcement falls actually within the powers of
the Section 101 of the constitution Inter-State Commission then why is the Federal Government
involved and the States permitted to unilaterally keep the manufacturing of number plates for
itself being anti competition? Surely, the selling of number plates such as by VicRoads for
hundreds of dollars, far beyond the real cost for a private number plate cost is in itself not a cost
for service but a cost as a taxation.
Likewise the sale or leasing out of the ports such as in regard of Victoria with the Port of
Melbourne one then has to ask if this was unconstitutional because the about $10 billion dollars it
charged is monies the Victorian Government indicated to use for rail crossings and other matters
but not at all for the harbor. It essentially is a tax in violation of the freedom of trade.
Commonwealth of Australia Constitution Act 1900 (UK)
QUOTE
92 Trade within the Commonwealth to be free
On the imposition of uniform duties of customs, trade, commerce, and intercourse among the
States, whether by means of internal carriage or ocean navigation, shall be absolutely free.
But notwithstanding anything in this Constitution, goods imported before the imposition of
uniform duties of customs into any State, or into any Colony which, whilst the goods remain
therein, becomes a State, shall, on thence passing into another State within two years after the
imposition of such duties, be liable to any duty chargeable on the importation of such goods into
the Commonwealth, less any duty paid in respect of the goods on their importation.
END QUOTE
In my view the anti-competitive provisions within the State of Victoria as well as in other states
must be deemed to be in violation of the constitutional trade and commerce provisions.
License fees should be at the real cost to the provider as anything more than that would be
unconstitutional as a tax. And since the High Court of Australia in Sydney Municipal v
Commonwealth 1904 held that council rates were a delegated State land tax power, and in 11
November 1911 the Commonwealth legislated as to the Land tax office (the forerunner of the
ATO) then all State and so purported delegated land tax powers to the municipal/shire councils
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are unconstitutional. Moreover, any monies collected as a tax must be placed in the consolidated
revenue funds which can only be drawn by way of Appropriation Bills that became Acts once
passed by the Parliament and given Royal Assent.
And the High Court of Australia using an ABN (Australian Business Number) of the Federal
Government then it no longer has the separation of powers but is ac ting as a corporation, this
cannot provide impartial and independent judgements.
QUOTE
Mr. OCONNOR.-I think that the reason of the proposal is obvious. So long as each state has to do only
with its own citizens it may make what laws it thinks fit, but we are creating now a new and a larger
citizenship. We are giving new rights of citizenship to the whole of the citizens of the Commonwealth, and
we should take care that no man is deprived of life, liberty, or property, except by due process of law.
Mr. GORDON.-Might you not as well say that the states should not legalize murder?
Mr. OCONNOR-That is one of those suppositions that are against the first instincts of humanity.
Mr. GORDON.-So is this.
Mr. OCONNOR.-No, it is not. We need not go far back in history to find cases in which the community,
seized with a sort of madness with regard to particular offences, have set aside all principles of justice. If
a state did behave itself in that way, why should not the citizens of the Commonwealth who did not
belong to that state be protected? Dr. Cockburn suggested in so contemptuous a way that there could be
no reason for this amendment, that I got up to state again what had been stated before.
Dr. COCKBURN.-Not contemptuous.
Mr. OCONNOR.-I know the honorable member meant nothing personal, but I thought it necessary to state
the reasons of what, had it not been for the honorable member's statement, would have seemed to be a
perfectly obvious proposition. Mr. Clark, of Tasmania, thought the amendment of importance, and pointed
out that it had been put in the United States Constitution. It should also be put in this Constitution, not
necessarily as an imputation on any state or any body of states, but as a guarantee for all time for the
citizens of the Commonwealth that they shall be treated according to what we recognise to be the
principles of justice and of equality.
END QUOTE
It must be clear that the terminology used by the Framers of the Constitution are; British
subject, to make persons subjects of the British Empire., with the consent of the
Imperial authority, What is meant is a dual citizenship in Mr. Trenwith and myself. That
is to say, I am a citizen of the state and I am also a citizen of the Commonwealth; that is the
dual citizenship., we are all alike subjects of the British Crown. We have a High Court of
Australia that appears to me being political motivated to try to alter the Constitution by stealth
by endorsing a substitute Constitution! The question is if the judges of the High Court of
Australia committed TREASON?
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QUOTE
Mr. SYMON.-Very likely not. What I want to know is, if there is anybody who will come under the
operation of the law, so as to be a citizen of the Commonwealth, who would not also be entitled to be a
citizen of the state? There ought to be no opportunity for such discrimination as would allow a section of a
state to remain outside the pale of the Commonwealth, except with regard to legislation as to aliens. Dual
citizenship exists, but it is not dual citizenship of persons, it is dual citizenship in each person. There may be
two men-Jones and Smith-in one state, both of whom are citizens of the state, but one only is a citizen of
the Commonwealth. That would not be the dual citizenship meant. What is meant is a dual citizenship in
Mr. Trenwith and myself. That is to say, I am a citizen of the state and I am also a citizen of the
Commonwealth; that is the dual citizenship. That does not affect the operation of this clause at all. But if
we introduce this clause, it is open to the whole of the powerful criticism of Mr. O'Connor and those who
say that it is putting on the face of the Constitution an unnecessary provision, and one which we do not
expect will be exercised adversely or improperly, and, therefore, it is much better to be left out. Let us, in
dealing with this question, be as careful as we possibly, can that we do not qualify the citizenship of this
Commonwealth in any way or exclude anybody [start page 1764] from it, and let us do that with precision
and clearness. As a citizen of a state I claim the right to be a citizen of the Commonwealth. I do not want
to place in the hands of the Commonwealth Parliament, however much I may be prepared to trust it, the
right of depriving me of citizenship. I put this only as an argument, because no one would anticipate such a
thing, but the Commonwealth Parliament might say that nobody possessed of less than 1,000 a year
should be a citizen of the Federation. You are putting that power in the hands of Parliament.
Mr. HIGGINS.-Why not?
Mr. SYMON.-I would not put such a power in the hands of any Parliament. We must rest this Constitution
on a foundation that we understand, and we mean that every citizen of a state shall be a citizen of the
Commonwealth, and that the Commonwealth shall have no right to withdraw, qualify, or restrict those
rights of citizenship, except with regard to one particular set of people who are subject to disabilities, as
aliens, and so on.
END QUOTE
QUOTE Thomas Jefferson:
"The germ of destruction of our nation is in the power of the judiciary, an

irresponsible body - working like gravity by night and by day, gaining a little
today and a little tomorrow, and advancing its noiseless step like a thief over
the field of jurisdiction, until all shall render powerless the checks of one
branch over the other and will become as venal and oppressive as the
government from which we separated.".
END QUOTE
ADDRESS TO THE COURT
County Court of Victoria, Case numbers T01567737 & Q10897630
QUOTE
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The Defendants submits, that Australian citizenship can only be obtained by obtaining State citizenship, as it
is not a nationality, but has to deal with being a recognised State citizens where one AUTOMATICALLY then
obtain Australian citizenship (Commonwealth citizenship which includes franchise. Because lawyers require to
make an Oath of alliance when seeking to be admitted to the BAR to practice, which now is to a LEGAL
FICTIONAL Queen of Australia (as set out further in this ADDRESS TO THE COURT), while being a Subjects of the
British Crown, (as also set out further), then there is a clear conflict for any judge to deal with this matter which
would in effect involve his/her own personal legal position if qualified to be a judge of this Court. Albeit judicial
officers may not be aware that their true constitutionally nationality is and remain to be British nationals and so
any Oath of alliance to a LEGAL FICTIONAL Queen of Australia would be a conflict. Where the High Court of
Australia in Sue v Hill ousted Heather Hill of being a member of parliament upon the basis that she was having
alliance to a foreign Queen, then as set out further in this ADDRESS TO THE COURT, the same applies to all other
persons, including judicial officers, who by birth (including all those persons born within the Commonwealth of
Australia) or by naturalization are in fact subjects of the British Crown.
Hansard 2-3-1898 Constitution Convention Debates;
Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that we are all alike subjects
of the British Crown.
Dr. QUICK.-If we are to have a citizenship of the Commonwealth higher, more comprehensive, and nobler
than that of the states, I would ask why is it not implanted in the Constitution? Mr. Barton was not present
when I made my remarks in proposing the clause. I then-anticipated the point he has raised as to the
position we occupy as subjects of the British Empire. I took occasion to indicate that in creating a federal
citizenship, and in defining the qualifications of that federal citizenship, we were not in any way
interfering with our position as subjects of the British Empire. It would be beyond the scope of the
Constitution to do that. We might be citizens of a city, citizens of a colony, or citizens of a
Commonwealth, but we would still be, subjects of the Queen.
Again;
we were not in any way interfering with our position as subjects of the British Empire. It would be beyond
the scope of the Constitution to do that.
The High Court of Australia deriving its judicial powers within the Constitution (Commonwealth of Australia
Constitution Act 1900 (UK)) cannot go beyond what is embedded in the Constitution, hence the constitutional
problem exist that judicial officers are constitutionally (by birth or naturalization) subjects of the British Crown
but wrongly excluded by the Sue v Hill decision as being deemed to be by this having alliance to a foreign Monarch.
In view that by the Sue v Hill ruling the effect is that all judicial officers within the Commonwealth of Australia then
are having alliance to a foreign Monarch then none of the judicial officers (including those of the High Court of
Australia) could possibly determine their own status as only the Privi Council could do so.
As set out further in this document Subsection 51(xix) of the Constitution was provided for by the British
Parliament to naturalize aliens to become British nationals, and it never included any purported Australian
nationality. The High Court of Australia has no constitutional powers to amend the Constitution as to purport this
subsection 51(xix) has a different meaning then intended by the Framers of the Constitution, and hence all persons
born in the Commonwealth of Australia and those naturalized are and remain subjects of the British Crown
with their alliance to the British Monarch. As also set out extensively further in this ADDRESS TO THE COURT, no
one can have alliance to two Monarchs and therefore any Oath that purports to be to a Queen of Australia is a
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disqualification to serve as a judicial officer. With laws (legislation) now being enacted under the name of Queen
of Australia then all laws so enacted are constitutionally ULTRA VIRES and so without legal force. This applies also
to Proclamations and writs.
The Defendant submits, that for this also the Proceedings are permanently stayed, so the constitutional issues are
to be sorted out by the Commonwealth Director of Public Prosecutions as to if this Court can invoke legal
jurisdiction and if there is any judicial officer of any Court in the Commonwealth of Australia who in fact is qualified
to hear the case, or that by their Oath of alliance to the LEGAL FICTION Queen of Australia they have all
disqualified themselves from being a judicial officer to hear and determine matters.
The Defendant submits, that the same applies to any lawyer seeking to prosecutor this case for the
Commonwealth Director of Public Prosecutions.
Those who did not make an Oath of alliance to the LEGAL FICTION Queen of Australia still have the problem
that they are faced with a Court system that now purportedly (Sue v Hill) operates under a LEGAL FICTION Queen
of Australia and as such the conflict remains to exist.
This ADDRESS TO THE COURT to some extend has quoted the intentions of the Framers of the Constitution and
the true meaning of citizenship including Commonwealth citizenship (Australian citizenship) and how one
obtain it. Including the various references of Australian citizenship under the British nationality! It is the Sue v
Hill judgment that has thrown it all in a chaos where the High Court of Australia purported that Australian
citizenship is a nationality where in fact no such constitutional powers ever existed, in deed specifically was
stated not to exist. Where then nevertheless the Sue v Hill judgment prevents a British national to sit in the
parliament, contrary to the intentions of the Framers of the Constitution then it equally applies to all other
members of parliament and any judicial officers who unbeknown to themselves are in fact British nationals.
In my 30 September 2003 published book (Of which 4 copies were provided that day to the High Court of Australia
Melbourne Registry, and a further 4 copies on 3 October 2003);
ISBN 0-9580569-6-X
I did set out then that with those who had joined Pauline Hanson One Nation were in fact members regardless of
what was stated otherwise on the flip side of their membership card. Subsequently, in November 2003, the Court
of Appeal precisely used this to overturn Pauline Hanson and David Ettridge convictions.
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Because the Commonwealth of Australia was specifically denied to define/declare citizenship by the Framers of the
Constitution then the Australian Citizenship Act 1948 is ULTRA VIRES, for so far it purports to define/declare
citizenship and by this all persons natural born in the Commonwealth of Australia and those naturalized within the
powers of subsection 51(xix) of the Constitution are and remain in fact British nationals. By the, albeit illconceived judgment of Sue v Hill therefore are deemed to be under an Oath of alliance of a foreign monarch.
All judgments handed down in the name of the Queen of Australia therefore are a legal nullity.
END QUOTE
As to the true meaning and application of the term citizen/citizenship referred to by the Framers
of the Constitution:
ADDRESS TO THE COURT
County Court of Victoria, Case numbers T01567737 & Q10897630
QUOTE
The issue of Australian citizenship
http://www.aec.gov.au/_content/What/media_releases/1998/sep/franchise.htm
The Franchise Right to Vote Timetable

16 September 1998
On October 3 over 12 million Australians will be eligible to vote in the 1998 federal election.
In Australia, citizens have the right and responsibility to enrol and vote when they each the age of eighteen years.
In fact is it compulsory to do so.
But is hasnt always been so - compulsory enrolment wasnt introduced until 1911 and compulsory voting wasnt
introduced until 1924.
For one quarter of the history of white settlement in Australia nobody voted, and this was for the simple fact that
there were no parliaments to vote for.
The first parliamentary elections were in 1843 for the New South Wales Legislative Council. But this was an
election that not everyone could vote in only men with land valued at 200 pounds or a house worth 20
pounds annually had the right to vote.
For the rest of the century following this election, and even for a time before, there were long struggles
over who could vote and what they could vote for. These movements to increase the franchise gained
notable victories in the years following the first election in Australia.
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In 1856 the right to vote was granted to all male British subjects over the age of 21 in South Australia. The
other States followed in the years between 1857 and 1896.
South Australia again led the way when in 1894 women over 21 were given the right to vote. The other
States granted women this right in the years between 1899 and 1908.
By 1902 most men and women were able to vote at federal elections. However, what were referred to as
Aboriginal natives of Australia, Asia, Africa or the Pacific Islands were excluded from enrolment and voting.
In 1903 the first federal election under federal law was held with a 46.86% voter turnout. In 1925 the first
federal election with compulsory voting was held with 91.31% voter turnout.
It was 1949 when Aboriginal people were given the right to enrol and vote at federal elections, and then
only as long as they were entitled to enrol for State elections or had served in the defence forces. In 1962
voluntary enrolment and voting at federal elections was extended to all Aboriginal people.
In 1973 the qualifying age for enrolment, voting and candidature for all federal elections was lowered from
21 to 18.
It was in 1984 that enrolment and voting were made compulsory for Aboriginal people.
It was also in 1984 that the qualifications to be eligible to vote was changed to Australian citizenship. Now
the only non-Australian citizens entitled to enrol and vote are those British subjects who were on the
electoral roll on 25 January 1984, the time at which the eligibility changed.
One of the first obstacles the Commonwealth Director of Public Prosecutions has is to prove that I am an
Australian citizen within the meaning as referred to by the Framers of the Constitution, as to poses the right to
vote in federal elections, rather then to whatever is made out to be by the Federal legislation. If in fact I am not an
Australian citizen, as to exercise any political powers such as franchise then it is irrelevant if the election was
constitutionally valid or not (as this is also in contest) as without political right to vote there can be no jurisdiction
being invoked for this Court to entertain any charges against me.
Citizenship is used only once in the Constitution as the draft had other references to citizenship removed as to
avoid misconceptions as to the constitutional powers or the lack thereof by the Federal Parliament. (Hansard
records Constitutional Convention Debates 1891, 1897 and 1898)
The terms citizen of the Commonwealth., Australian citizen, federal citizen, State citizen were all used in an
interchanging set of words as to mean subject of the Queen. This as after all any person within the realm of the
queen (King) is subject to the laws of the British Parliament. It does not matter if they were aliens, natural born
subjects or naturalized subjects, as they were/are all subject to the laws enacted by the Parliaments under the
Imperial powers.
The meaning of a word or words can they be altered because of international perceptions, etc.;
Al-Kateb v Godwin [2004] HCA 37, 6-8-2004
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66. Most of the rules HYPERLINK "http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high%5fct/2004/"

\l "fn63" [64] now recognised as rules of international law are of recent origin. If Australian courts
interpreted the Constitution by reference to the rules of international law now in force, they would be
amending the Constitution in disregard of the direction in s 128 of the Constitution. Section 128 declares
that the Constitution is to be amended only by legislation that is approved by a majority of the States and
"a majority of all the electors voting". Attempts to suggest that a rule of international law is merely a
factor that can be taken into account in interpreting the Constitution cannot hide the fact that, if that is
done, the meaning of the Constitution is changed whenever that rule changes what would otherwise be
the result of the case. The point is so obvious that it hardly needs demonstration. But a simple example
will suffice to show the true character of what is done if courts take a post-1900 rule of international law
into account. Immediately before the rule was recognised, our Constitution had meanings that did not
depend on that rule. Either the rule of international law has effect on one or more of those meanings or it
has no effect. If it has an effect, its invocation has altered the meaning of the Constitution overnight. As a
result, a court that took the rule into account has amended the Constitution without the authority of the
people acting under s 128 of the Constitution. It has inserted a new rule into the Constitution. Take this
case. The issues are whether ss 189, 196 and 198 are laws with respect to aliens or are exercises by the
Parliament and not the federal courts of the judicial power of the Commonwealth. If this Court had to
take a rule of international law into account in interpreting those powers, the rule would either confirm
what was already inherent in the powers or add to or reduce them. If the international rule is already
inherent in the power it is irrelevant. If it is not, its invocation alters the constitutional meaning of "aliens"
or "judicial power of the Commonwealth" or both.
67. Many constitutional lawyers - probably the great majority of them - now accept that developments inside
and outside Australia since 1900 may result in insights concerning the meaning of the Constitution that
were not present to earlier generations. Because of those insights, the Constitution may have different
meanings from those perceived in earlier times. As Professor Ronald Dworkin has often pointed out, the
words of a Constitution consist of more than letters and spaces. They contain propositions. And, because
of political, social or economic developments inside and outside Australia, later generations may deduce
propositions from the words of the Constitution that earlier generations did not perceive. Windeyer J
made that point persuasively in Victoria v The Commonwealth HYPERLINK
"http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high%5fct/2004/" \l "fn64" [65] . But that is a
very different process from asserting that the Constitution must be read to conform to or so far as
possible with the rules of international law. As I earlier pointed out, reading the Constitution up or down
to conform to the rules of international law is to make those rules part of the Constitution, contrary to the
direction in s 128 that the Constitution is to be amended only in accordance with the referendum process.
68. The issue in Polites HYPERLINK "http://www.austlii.edu.au/cgibin/disp.pl/au/cases/cth/high%5fct/2004/" \l "fn65" [66] shows what would be the effect of reading
the Constitution to conform with the rules of international law. It was arguably a rule of international law
in 1945 that aliens could not be compelled to serve in the military forces of a foreign state in which they
happened to be. Whether or not such a rule existed HYPERLINK "http://www.austlii.edu.au/cgibin/disp.pl/au/cases/cth/high%5fct/2004/" \l "fn66" [67] , this Court refused to read the constitutional
powers with respect to "defence" HYPERLINK "http://www.austlii.edu.au/cgibin/disp.pl/au/cases/cth/high%5fct/2004/" \l "fn67" [68] and "aliens" HYPERLINK
"http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high%5fct/2004/" \l "fn68" [69] as subject to
such a rule. If the Court had accepted the argument of the plaintiff in Polites, the international law rule
would have become a constitutional rule contrary to s 128 of the Constitution.
69. Failure to see the difference between taking into account political, social and economic developments
since 1900 and taking into account the rules of international law is the error in the approach of those who
assert that the Constitution must be read in conformity with or in so far as it can be read conformably
with the rules of international law. Rules are specific. If they are taken into account as rules, they amend
the Constitution. That conclusion cannot be avoided by asserting that they are simply "context" or
elucidating factors. Rules are too specific to do no more than provide insights into the meanings of the
constitutional provisions. Either the rule is already inherent in the meaning of the provision or taking it
into account alters the meaning of the provision. No doubt from time to time the making or existence of
(say) a Convention or its consequences may constitute a general political, social or economic development
that helps to elucidate the meaning of a constitutional head of power. But that is different from using the
rules in that Convention to control the meaning of a constitutional head of power. Suppose the imposition
of tariffs is banned under a World Trade Agreement. If that ban were taken into account - whether as
context or otherwise - in interpreting the trade and commerce power HYPERLINK
"http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high%5fct/2004/" \l "fn69" [70] , it would add
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a new rule to the Constitution. It would require reading the power to make laws with respect to trade and
commerce as subject to the rule that it did not extend to laws that imposed tariffs. Such an approach, in
the words of Dixon J, cannot be "countenanced" HYPERLINK "http://www.austlii.edu.au/cgibin/disp.pl/au/cases/cth/high%5fct/2004/" \l "fn70" [71] .
Again;
If this Court had to take a rule of international law into account in interpreting those powers, the rule
would either confirm what was already inherent in the powers or add to or reduce them. If the
international rule is already inherent in the power it is irrelevant. If it is not, its invocation alters the
constitutional meaning of "aliens" or "judicial power of the Commonwealth" or both.
The point is that albeit International law of late cannot be used to determine the powers and limitations of
constitutional provisions, International law as existing at the time of Federation can be used to explain the
intentions of the Framers, this, as the Framers themselves were debating the issue of how it applied under
international law. Further, International law provisions that came after the Federation can not be applied to
expand or otherwise alter the true intentions of the Framers of the Constitution but may be an aid to the scope of
legislation passed since Federation. As such, it does not impinge upon constitutional provisions at all, but is to be
considered as to what was applicable at the time of constitutional valid legislated provisions how they could be
applicable within the framework of the Constitution.
For example, the issue of conservation;
Constitution Convention Debates;
Sub-clause 27 (River navigation with respect to the common purposes of two or more states or parts of the
commonwealth), 689. Amendment by Sir Samuel Griffith to provide for the conservation of water, 690;
withdrawn, and sub-clause agreed to, 692.

Mr. MCMILLAN: There is another question which, to a certain extent, I think is connected with my
contention in favour of a strong central government. There is in the centre of this great continent, which you
may call Central Australia, a large area of land that adjoins three or four colonies. From its peculiar position,
from the smallness of its rainfall, it will have to be dealt with in the future separately, from the other
portions of Australia. It is not likely with an enterprising people such as we have in these colonies, with
every obstacle going down before the race to which we belong that we shall allow the and wastes of the
centre of this continent to remain as they are for many years to come. There is no doubt that a system of
conservation of water and irrigation must be introduced into that great tract, and if that is done at all it
must be done by a united Australia. Consequently there should be some machinery in the central
government by which the country in the centre of this continent maybe dealt with differently from other
parts of the continent.
See Section 100 of the Constitution that prohibits to deny reasonable use of water. What the framers then
discussed was that trade along the rivers (navigation, etc) required the Commonwealth to regulate the use of
water drawn from it, but it could not deny reasonable use of water. What reasonable use stands for was to be
assessed by the inter State Commission.
However, the general conservation of water was held to be a State issue!
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To be able to consider if the Court can or cannot invoke jurisdiction, it requires to ascertain if the subject matter of
alleged failure to comply with Commonwealth law (Section 245 of the Commonwealth Electoral Act 1918) in fact is
applicable. After all, if the relevant provision is not applicable then the Commonwealth Director of Public
Prosecutions is pursuing a vexatious charges and the Court cannot entertain the charges or either one of them. .
Mr. THYNNE:
The union of these colonies must take place in either one or two ways, namely, either by a unification under
one all-powerful parliament, or by a federation which gives to the central federal parliament certain limited
powers and reserves to the other parliaments all other powers. As I think we may be in danger of
overlooking some of the first principles connected with federation, I may be pardoned if I briefly define
some of the characteristics of a federation. 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.
Australian Agricultural Co Ltd. v F.E.D.F.A of Australasia (1913) 17 CLR 261 and 278
The oath of a justice of this court is ' to do right to all manner of people according to law' Our sworn duty is
to the law itself and to the organic nature of the constitution first of all. If, then, we find the law to be
plainly in conflict with what we or any of our predecessors errornously thought it to be, we have, as I
conceive no right to choose between giving effect to the law, and maintaining an incorrect interpretation,
It is not, in my opinion, better that the court should be persistently wrong than that it should be
ultimately right..
Whatever else may be said with respect to previous decisions - and it is necessary here to consider the
principals upon which a court should act in particular cases - so much at least emerges as is undoubtedly
beyond challenge, that where a former decision is clearly wrong, and there are no circumstances
countervailing the primary duty of giving effect to the law as the court finds it, the real opinion of the court
should be expressed.
It is a matter of fact that I was issued with a Certificate of Australian Citizenship No. ME9401317C on the 28th
day of March 1994. I do not believe that the Commonwealth Director of Public Prosecutions contest the issue of
this certificate.
The certificate states;
QUOTE
COMMONWEALTH OF AUSTRALIA
Australian citizenship Act 1948
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Certificate of Australian Citizenship
GERRIT HENDRIK SCHOREL

Born on 7 th June 1947
having applied for a Certificate of Australian Citizenship, having satisfied the conditions prescribed by the
Australian Citizenship Act 19448 for the grant of such Certificate
and having undertaken to fulfil the responsibilities of a citizen.
I the Minister for Immigration and Ethnic Affairs,

Grant this Certificate of Australian citizenship to the abovenamed applicant who is
an Australian citizen on and after 28 th March 1994.
Issued by the authority

Of the Minister
For Immigration and
Ethnic Affairs.
END QUOTE
By marriage, on 28 March 2001, I became Gerrit Hendrik Schorel-Hlavka
Talbot v. Janson, 3 U.S. 133 (1795)
Yet, it is to be remembered, and that whether in its real origin, or in its artificial state, allegiance, as well as
fealty, rests upon lands, and it is due to persons. Not so, with respect to Citizenship, which has arisen from
the dissolution of the feudal system and is a substitute for allegiance, corresponding with the new order of
things. Allegiance and citizenship, differ, indeed, in almost every characteristic. Citizenship is the effect of
compact; allegiance is the offspring of power and necessity. Citizenship is a political tie; allegiance is a
territorial tenure. Citizenship is the charter of equality; allegiance is a badge of inferiority. Citizenship is
constitutional; allegiance is personal. Citizenship is freedom; allegiance is servitude. Citizenship is
communicable; allegiance is repulsive. Citizenship may be relinquished; allegiance is perpetual. With such
essential differences, the doctrine of allegiance is inapplicable to a system of citizenship; which it can
neither serve to controul, nor to elucidate. And yet, even among the nations, in which the law of allegiance
is the most firmly established, the law most pertinaciously enforced, there are striking deviations that
demonstrate the invincible power of truth, and the homage, which, under every modification of
government, must be paid to the inherent rights of man.
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And
These are tacit acknowledgments of the right of expatriation, vested in the individuals; for, though they are
instances of adopting, not of discharging, subjects; yet, if Great Britain would (ex gratia) protect a Russian
naturalized by service, in her fleet, it is obvious that she cannot do so without recognizing his right of
expatriation to be superior to the Empress's right of allegiance. But it is not only in a negative way, that
these deviations in support of the general right appear. The doctrine is, that allegiance cannot be due to
two sovereigns; and taking an oath of allegiance to a new, is the strongest evidence of withdrawing
allegiance from a previous, sovereign.
And
The power of naturalizing has been vested in several of the state governments, and it now exists in the
general government; but the power to restrain or regulate the right of emigration, is no where
surrendered by the people; and it must be repeated, that, what has not been given, ought not to be
assumed. It may be said, however, that such a power is necessary to the government, and that it is
implied in the authority to regulate the business of naturalization. In considering these positions, it must
be admitted, that although an individual has a right to expatriate himself, he has not a right to seduce
others from their country. Hence, those who forcibly, or seductively, take away a citizen, commit an act,
which [p*143] forms a fair object of municipal police; and a conspiracy or combination, to leave a
country, might, likewise be properly guarded against. Such laws would not be an infraction of the natural
right of individuals; for, the natural rights of man are personal; he has no right to will for others, and he
does so, in effect, whenever he moves the mind of another to his purpose, by fear, by fraud, or by
persuasion.
And
But naturalization and expatriation are matters of internal police; and must depend upon the municipal
law, though they may be illustrated and explained by the principles of general jurisprudence. It is true,
that the judicial power extends to a variety of objects; but the Supreme Court is only a branch of that
power; and depends on Congress for what portion it shall have, except in the cases of ambassadors, &c.
particularly designated in the constitution. The power of declaring whether a citizen shall be entitled in
any form to expatriate himself, or, if entitled, to prescribe the form, is not given to the Supreme Court;
and, yet, that power will be exercised by the court, if they shall decide against the expatriation of Captain
Talbot. Let it not, after all, be understood, that the natural, loco-motive, right of a free citizen, is
independent of every social obligation. In time of war, it would be treason to migrate to any enemy's
country and join his forces, under the pretext of expatriation. 1 Dall. Rep. 53, and, even in time of peace,
it would be, reprehensible (say the writers on the law of nature and nations) to desert a country
labouring under great calamities. So, if a man acting under the obligations of an oath of office, withdraws
to elude his responsibility, he changes his habitation, but not his citizenship. It is not, however, private
relations, but public relations; private responsibility, but public responsibility; that can affect the right:
for, where the reason of the law ceases, the law itself must, also, cease. There is not a private relation, for
which a man is not as liable by local, as by natural, allegiance;--after, as well as before, his expatriation:
He must take care of his family, he must pay his debts, wherever he resides; and there is no security in
restraining emigration, as to those objects, since, with respect to them, withdrawing is as effectual, as
expatriating. Nor is it enough to impair the right of expatriation, that other nations are at war; it must be
the country of the emigrant. No nation has a right to interfere in the interior police of another: the rights
and duties of citizenship, to be conferred, or released, are matter of interior police; and yet, if a foreign war
could affect [p*145] the question, every time that a fresh power entered into a war, a new restraint would
be imposed upon the natural rights of the citizens of a neutral country; which, considering the constant
warfare that afflicts the world, would amount to a perpetual controul. But the true distinction appears to be
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this:--The citizens of the neutral country may still exercise the right of expatriation, but the belligerent
power is entitled to say, "the act of joining our enemies, flagrante bello, shall not be a valid act of
expatriation." By this construction, the duty a nation owes to itself, the sacred rights of the citizen, the law
of nations, and the faith of treaties, will harmonize, though moving in distinct and separate courses. To
pursue the subject one step further: A man cannot owe allegiance to two sovereigns. 1Bl. Com. He cannot
be citizen of two republics. If a man has a right to expatriate, and another nation has a right and
disposition to adopt him, it is a compact between the two parties, consummated by the oath of
allegiance. A man's last will, as to his citizenship, may be likened to his last will, as to his estate; it
supersedes every former disposition; and when either takes effect, the party, in one case, is naturally
dead, in the other, he is civilly dead;--but in both cases, as good Christians and good republicans, it must
be presumed that he rises to another, if not to a better, life and country. An act of expatriation, likewise,
is susceptible of various kinds of proof. The Virginia law has selected one, when the state permits her
citizens to depart; but it is not, perhaps, either the most authentic, or the most conclusive that the case
admits. It may be done obscurely in a distant county court; and even after the emigrant is released from
Virginia, to what nation does he belong? He may have entered no other country, nor incurred any
obligation to any other sovereign. Not being a citizen of Virginia, he cannot be deemed a citizen of the
United States. Shall he be called a citizen of the world; a human balloon, detached and buoyant in the
political atmosphere, gazed at wherever he passes, and settled wherever he touches? But, on the other
hand, the act of swearing allegiance to another sovereign, is unequivocal and conclusive; extinguishing, at
once, the claims of the deserted, and creating the right of the adopted, country. Sir William Blackstone,
therefore, considers it as the strongest, though an ineffectual, effort to emancipate a British subject from
his natural allegiance; and the existing constitution of France declares it expressly to be a criterion of
expatriation. The same principle operates, when the naturalization law of the United States provides, that
the whole ceremony of initiation shall be performed in the American courts; and if it is here considered as
the proof of adoption, shall it not be considered, also, as the test of expatriation? If America [p*146] makes
citizens in that way, shall we not allow to other nations, the privilege of the same process? In short, to admit
that Frenchmen may be made citizens by an oath of allegiance to America, is, virtually, to admit, that
Americans may be expatriated by an oath of allegiance to France. After this discussion of principles, forming
a necessary basis for the facts in this case, it is insisted, 1st, That Talbot was a naturalized citizen of the
French Republic at the time of receiving a commission to command the privateer, and of capturing the
Magdalena. He left this country with the design to emigrate; and the act of expatriation must be presumed
to be regular, according to the laws of France, since it is certified by the municipality of Point a Pitre, by the
French Consul, and by the Governor of Guadaloupe. 2d, That Redick was also, a naturalized citizen of the
French Republic, when he purchased the vessel, and received a commission to employ her as a privateer.
And
Ballard was a citizen of Virginia, and also of the United States.
Within the united States of America a person granted naturalization is also granted citizenship, where as the
Commonwealth of Australia Constitution Act 1900 (UK) does not provide for this.
Section 51(xix) provides for naturalization.
As already extensively placed before the magistrates in previous proceedings (upon which I rely before this Court
also) some of the Colonies (now States) naturalized aliens and others didnt however each and every Colony
did have legislation in regard of citizenship and the rights to franchise.
The Hansard records of the 2 March and 3 March 1898 Constitutional Convention Debates made clear that
naturalization powers would be transferred from the Colonies to the newly to be formed Commonwealth of
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Australia, as it would be approved by the British Parliament but CITIZENSHIP legislative powers would be
retained by the States in the newly formed Commonwealth of Australia.
Mr Quick proposed to give the Commonwealth of Australia constitutional powers to define/declare CITIZENSHIP
but this was defeated/refused by the Delegates!
I took occasion to indicate that in creating a federal citizenship, and in defining the qualifications of that
federal citizenship, we were not in any way interfering with our position as subjects of the British Empire.
It would be beyond the scope of the Constitution to do that.
Therefore, even if the amendment of Mr Quick had succeeded it still was not intended to give any legislative
powers to the commonwealth of australia to interfere with the rights of any person as a British subject.
Hansard 2-3-1898 Constitution Convention Debates;
Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that we are all alike subjects
of the British Crown.
Dr. QUICK.-If we are to have a citizenship of the Commonwealth higher, more comprehensive, and nobler
than that of the states, I would ask why is it not implanted in the Constitution? Mr. Barton was not present
when I made my remarks in proposing the clause. I then-anticipated the point he has raised as to the
position we occupy as subjects of the British Empire. I took occasion to indicate that in creating a federal
citizenship, and in defining the qualifications of that federal citizenship, we were not in any way
interfering with our position as subjects of the British Empire. It would be beyond the scope of the
Constitution to do that. We might be citizens of a city, citizens of a colony, or citizens of a
Commonwealth, but we would still be, subjects of the Queen. I see therefore nothing unconstitutional,
nothing contrary to our instincts as British subjects, in proposing to place power in this Constitution to
enable the Federal Parliament to deal with the question of federal citizenship. An objection has been raised
in various quarters-as by the honorable and learned members (Mr. O'Connor and Mr. Wise)-to the effect
that we ought to define federal citizenship in the Constitution itself. I have considered this matter very
carefully, and it has seemed to me that it would be most difficult and invidious, if not almost impossible, to
frame a satisfactory definition. There is in the Constitution of the United States of America a cast-iron
definition of citizenship, which has been found to be absolutely unworkable, because, among other
things, it says that a citizen of the United States shall be a natural-born or naturalized citizen within the
jurisdiction of the United States, and it has been found that that excludes the children of citizens born
outside the limits of this jurisdiction. That shows the danger of attempting definitions, and although I
have placed a proposed clause defining federal citizenship upon the notice-paper, the subject, seems to
me surrounded with the greatest difficulty, and no doubt the honorable and learned members (Mr. Wise,
Mr. O'Connor, and Mr. Symon) would be the first to attack any definition, and would be able to perforate
it. In my opinion, it would be undesirable to implant a cast-iron definition of citizenship in the
Constitution, because it would be better to leave the question more elastic, more open to consideration,
and more yielding to the advancing changes and requirements of the times.
Mr. SYMON.-I agree with the honorable member, and I also think it is unlikely that the Commonwealth
will seek to derogate from it, but I will not place a power in the hands of the Commonwealth which will
enable them to derogate from it, and if that is not done it will be merely a dead letter. Is there any citizen of
the Commonwealth who is not already a citizen of the state? State citizenship is his birthright, and by virtue
of it he is entitled to the citizenship of the Commonwealth. When you have immigration, and allow
different people to come in who belong to nations not of the same blood as we are, they become
naturalized, and thereby are entitled to the rights of citizenship.
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Sir EDWARD BRADDON.-They are citizens if they are British subjects before they come here.
Mr. SYMON.-That is a point I do not wish to deal with. But they become citizens of the states, and it is by
virtue of their citizenship of the states that they become citizens of the Commonwealth. Are you going to
have citizens of the state who are not citizens of the Commonwealth?
Mr. KINGSTON.-In some states they naturalize; but they do not in others.
Mr. WALKER.-Is not a citizen of the state, ipso facto, a citizen of the Commonwealth?
And
Mr. SYMON.-The honorable and learned member is now dealing with another matter. Would not the
provision which is now before us confer upon the Federal Parliament the power to take away a portion of
this dual citizenship, with which the honorable and learned member (Dr. Quick) has so eloquently dealt? If
that is the case, what this Convention is asked to do is to hand over to the Federal Parliament the power,
whether exercised or not, of taking away from us that citizenship in the Commonwealth which we acquire
by joining the Union. I am not going to put that in the power of any one, and if it is put in the power of the
Federal Parliament, then I should feel that it was a very serious blot on the Constitution, and a very strong
reason why it should not be accepted. It is not a lawyers' question; it is a question of whether any one of
British blood who is entitled to become a citizen of the Commonwealth is to run the risk-it may be a small
risk-of having that taken away or diminished by the Federal Parliament! When we declare-"Trust the
Parliament," I am willing to do it in everything which concerns the working out of this Constitution, but I am
not prepared to trust the Federal Parliament or anybody to take away that which is a leading inducement
for joining the Union.
And
Mr. OCONNOR.-I have said that I do not see that such a trust in the Federal Parliament would be effective.
I sympathize with the honorable member's view, but I think it will be carried out by some kind of definition
of citizenship, and I was pointing out the only aspect in which it appears to me it might be desirable to have
some such definition, and that is, you are creating new rights to citizens of the Commonwealth as citizens of
the Commonwealth in regard to your courts. You establish courts for the Commonwealth, and every citizen
of the Commonwealth is entitled to the use of those courts.
Mr. HIGGINS.-Who is he?
And
Mr. GLYNN (South Australia).-I shall have to oppose Dr. Quick's amendment, although I would really go
further than he intends. His object is to have a common citizenship, and he proposes to define that in a
proposed new clause, 120A, which reads as follows:All persons resident within the Commonwealth, being natural-born or naturalized subjects of the Queen,
and not under any disability imposed by the Parliament, shall be citizens of the Commonwealth;
and he now wants to give power to Parliament to vary that subsequently.
Mr. ISAACS.-It is not clause 120A that he is proposing now.
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Mr. HIGGINS.-It is his amendment in clause 52-to insert "Commonwealth citizenship" as a new subsection.
Mr. GLYNN.-I am quite aware of that, but what I want to understand is whether Dr. Quick will propose the
insertion of clause 120A, and also put it in the power of the Parliament to vary the Commonwealth
citizenship under clause 52? That is the point about which I am doubtful. But I desire to point out that Dr.
Quick is not going as far as they have gone in America or Germany. There is a common citizenship both of
the Commonwealth and of the states in America. Citizenship of the Commonwealth carries with it
citizenship of the states, and the Constitution provides that immunities and privileges enjoyed by the
citizens of a particular state shall be equally shared, when in that state, by the citizens of all the other
states. Now, the German Constitution makes a declaration that there must be a common citizenship. It does
not state that the Parliament of Germany will have the power of providing for a citizenship of the empire,
but that there must be a common citizenship of the whole empire, and that the privileges which are given
in one part of the empire would apply right through the whole empire. That is to say, there is a
Commonwealth citizenship and a state citizenship running the one with the other-a perfect equality of
rights. All that is done in Germany is that Article 3 of the Imperial Constitution declares that there shall be a
common citizenship for all Germany, and that the rights of the individual citizens of any state must be
extended to the individual citizens of any other state as long as they come within the jurisdiction of the
former state; but the German Constitution also provides that Parliament-and here is the distinction-may
define what the conditions of that common citizenship are to be. The Constitution declares that there must
be a common citizenship, but it leaves the determination of the particular terms of that citizenship to the
Parliament. That is different from the proposal of Dr. Quick.
And
[start page 1761]
Mr. KINGSTON.-It was in the Bill.
Mr. OCONNOR.-There is no portion of the Bill which gives any right of citizenship, or points out what
citizenship is.
Mr. HIGGINS.-The word "citizen " occurred in clause 110, although it is now struck out.
And
Mr. OCONNOR.-The words in clause 110 do not define any right of citizenship; they prevent certain
restrictions upon it. I would point out to Dr. Quick that he is proposing to give a power to regulate or
describe rights of citizenship, when we really do not know at present what is meant by a citizen. I confess I
do not know what the honorable and learned member means by that term. Does he mean only the political
rights which you give to every inhabitant of a state who is qualified to vote, or does he go beyond that, as
the American decisions have gone, and describe every person who is under the protection of your laws as a
citizen? The citizens, the persons under the protection of your laws, are not the only persons who are
entitled to take part in your elections or in your government, but every person who resides in your
community has a right to the protection of your laws and to the protection of the laws of all the states, and
has the right of access to your courts. If you are going to define citizenship for the purpose of giving these
rights, you must say clearly what you mean by citizenship. You leave it to the Federal Parliament to say
what citizenship is; and I think there is a great deal in what Mr. Glynn says, that we must not hand over to
the Federal Parliament the power to cut down the rights the inhabitants of these states have at the present
time. If we do not know what you mean by citizenship-
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Mr. ISAACS.-Commonwealth citizenship.

Mr. OCONNOR.-Exactly. But if we do not know what you mean by citizenship-whether you mean to
restrict it to political rights or to the right of protection under your laws, which every person, whether a
naturalized subject or a person for the time being resident in one of these communities, possesses-we may
drive the Federal Parliament into some difficulty, in which it is not at all unlikely that some cutting down of
what we believe to be the rights of citizenship may take place. I would point out that under the Bill the
power of dealing with aliens and immigration gives an abundant right to the Commonwealth to protect
itself, and, of course, the right of defining citizenship will have to be exercised with due regard to any
laws which might be made regarding the position of aliens. I would ask my honorable friend (Dr. Quick) to
say if he has considered how far he means the Federal Parliament to go in the definition of citizenship, and
what he means by citizenship? Because, unless we have a clear idea of that, it seems to me that we are
handing over to the Federal Parliament something which is vague in the extreme, and which might be
misused.
And
Mr. SYMON.-Very likely not. What I want to know is, if there is anybody who will come under the
operation of the law, so as to be a citizen of the Commonwealth, who would not also be entitled to be a
citizen of the state? There ought to be no opportunity for such discrimination as would allow a section of a
state to remain outside the pale of the Commonwealth, except with regard to legislation as to aliens. Dual
citizenship exists, but it is not dual citizenship of persons, it is dual citizenship in each person. There may be
two men-Jones and Smith-in one state, both of whom are citizens of the state, but one only is a citizen of
the Commonwealth. That would not be the dual citizenship meant. What is meant is a dual citizenship in
Mr. Trenwith and myself. That is to say, I am a citizen of the state and I am also a citizen of the
Commonwealth; that is the dual citizenship. That does not affect the operation of this clause at all. But if
we introduce this clause, it is open to the whole of the powerful criticism of Mr. O'Connor and those who
say that it is putting on the face of the Constitution an unnecessary provision, and one which we do not
expect will be exercised adversely or improperly, and, therefore, it is much better to be left out. Let us, in
dealing with this question, be as careful as we possibly, can that we do not qualify the citizenship of this
Commonwealth in any way or exclude anybody [start page 1764] from it, and let us do that with precision
and clearness. As a citizen of a state I claim the right to be a citizen of the Commonwealth. I do not want
to place in the hands of the Commonwealth Parliament, however much I may be prepared to trust it, the
right of depriving me of citizenship. I put this only as an argument, because no one would anticipate such a
thing, but the Commonwealth Parliament might say that nobody possessed of less than 1,000 a year
should be a citizen of the Federation. You are putting that power in the hands of Parliament.
Mr. HIGGINS.-Why not?
aliens, and so on. Subject to that limitation, we ought not, under this Constitution, to hand over our birth
right as citizens to anybody, Federal Parliament or any one else, and I hope the amendment will not be
accepted.
And
Mr. BARTON.-If the honorable member's exclamation means more than I have explained, then the best
thing to do is to confide to the Commonwealth the right of dealing with the lives, liberty, and property of all
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the persons residing in the Commonwealth, independently of any law of any state. That is not intended, but
that is what the expression "Trust the Federal Parliament" would mean unless it was limited by the
consideration I have laid down. I am sure Dr. Quick will see that he is using a word that has not a definition
in English constitutional law, and which is not otherwise defined in this Constitution. He will be giving to the
Commonwealth Parliament a power, not only of dealing with the rights of citizenship, but of defining
those rights even within the very narrowest limits, so that the citizenship of a state might be worth
nothing; or of extending them in one direction, and narrowing them in another, so that a subject living in
one of the states would scarcely know whether he was on his head or his heels. Under the Constitution we
give subjects political rights to enable the Parliament to legislate with regard to the suffrage, and pending
that legislation we give the qualification of electors. It is that qualification of electors which is really the sum
and substance of political liberty, and we have defined that. 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."
Mr. HIGGINS.-You give the Federal Parliament power to naturalize.
Mr. BARTON.-Yes; and in doing that we give them power to make persons subjects of the British Empire.
Have we not done enough? We allow them to naturalize aliens. That is a power which, with the consent of
the Imperial authority, has been carried into legislation by the various colonies, and, of course, we cannot
do less for the Commonwealth than we have done for the colonies.
Mr. KINGSTON.-Such legislation is only good within the limits of each state.
Mr. BARTON.-Yes; and here we have a totally different position, because the actual right which a person
has as a British subject-the right of personal liberty and protection under the laws-is secured by being a
citizen of the states. It must be recollected that the ordinary rights of liberty and protection by the laws
are not among the subjects confided to the Commonwealth. The administration of [start page 1766] the
laws regarding property and personal liberty is still left with the states. We do not propose to interfere
with them in this Constitution. We leave that amongst the reserved powers of the states, and, therefore,
having done nothing to make insecure the rights of property and the rights of liberty which at present exist
in the states, and having also said that the political rights exercisable in the states are to be exercisable also
in the Commonwealth in the election of representatives, we have done all that is necessary. It is better to
rest there than to plunge ourselves into what may be a sea of difficulties. We do not know to what extent a
power like this may be exercised, and we should pause before we take any such leap in the dark.
Again;
aliens, and so on. Subject to that limitation, we ought not, under this Constitution, to hand over our birth
right as citizens to anybody, Federal Parliament or any one else, and I hope the amendment will not be
accepted.
Also
The administration of [start page 1766] the laws regarding property and personal liberty is still left with
the states.
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As was made clear by Mr quick;

I took occasion to indicate that in creating a federal citizenship, and in defining the qualifications of that
federal citizenship, we were not in any way interfering with our position as subjects of the British Empire.
It would be beyond the scope of the Constitution to do that. We might be citizens of a city, citizens of a
colony, or citizens of a Commonwealth, but we would still be, subjects of the Queen.
Therefore, the Constitution never provided any constitutional powers for the Commonwealth of Australia to
legislate as to CITIZENSHIP.
As the Commonwealth of Australia was provided with powers within Subsection 51(xix) of the constitution to
naturalize aliens to become British nationals and the Nationalization Act was enacted after Federation then
clearly the powers to naturalize an alien to become a British national is not diminish. In 1948, the Federal
parliament then replaced the Naturalization Act with the Australian citizenship Act 1948 by this STEALING the
legislative powers of the States states in regard of citizenship by purporting that there was an Australian
citizenship as an Australian nationality.
Barton J,
the parliament cannot give the word a meaning

not warranted by s73 of the Constitution.
Commonwealth v Brisbane Milling Co. Ltd. (1916) 21 C.L.R. 559; A.L.R. 272.
If the Commonwealth of Australia never had any constitutional powers to declare/define citizenship then what is
the meaning of the Certificate of Australian Citizenship realty?
If Australian citizenship is purported to be Australian nationality then this must fail as Subsection 51(xix) provided
constitutional powers for the Commonwealth of Australia to naturalize aliens to become British nationals!
Without any Section 128 referendum this cannot be changed to some purported Australian nationality.
We either have a Constitution or not! We use it as was intended by the framers of the Constitution, modified as
have been provided for by the successful referendums or we have no constitution at all and no federation exist!
In view that the British parliament declared Australians to be foreigners can this then alter the application of the
constitution, one may ask?
Constitutional law cannot be amended by mere implication but must be amended by appropriate legislation. In the
case of the Commonwealth of Australia Constitution Act 1900 (UK) Section 128 exclude the British Parliament to
amend the constitution as it can only be amended by the consent of the people, as expressed by a Section 128
referendum. Hence, regardless if the British parliament did or didnt pass legislation to declare Australians
foreigners the only way to resolve the matter was and remains to have the Constitution amended to allow the
Commonwealth of Australia to naturalize aliens to become Australian nationals.
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The following part of transcript indicates how the High Court of Australia itself is confusing citizenship with
nationality.
DANG, EX PARTE - RE MIMA M118/2001 (18 APRIL 2002)

IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M25 of 2001
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 18 APRIL 2002, AT 10.17 AM
KIRBY J: Your clients were not British subjects.

MR MAXWELL: That is so. If I might move immediately to the question of what Patterson decided. In our
respectful submission, what Patterson decided was this, that allegiance, not citizenship, is the touchstone
for determining alien status.
KIRBY J: There is only one reference to citizenship in the Constitution, is there not, and that is the
disqualification that was considered in Sue v Hill?
MR MAXWELL: Yes, your Honour.
KIRBY J: There is no other reference to the concept and, indeed, we did not have a Citizenship Act until
quite late in the history of the Commonwealth.
MR MAXWELL: One of the critical aspects which comes through clearly in the judgments, both the
dissenting and the majority judgments in Patterson, is the point your Honour has just adverted to: alien is a
concept of our Constitution, citizenship is a concept of our statute law. Your Honours Justices Gummow and
Hayne in the joint judgment put in these terms the proposition advanced by the prosecutor in Patterson,
namely, at paragraph [223]:
alienage and citizenship . . . do not occupy the relevant universe of discourse That, we would respectfully adopt, though your Honours disagreed in the result, as being the proposition
which the majority did endorse. That is to say, it does not follow that because a person is a non-citizen he or
she is, by definition, an alien because you must be one or the other.
What Patterson held and why Nolan had to be overruled was that there is a category of non-citizen nonalien. That is what your Honours held by majority Taylor was. He was not a citizen and he was not an alien.
GUMMOW J: I should make clear to you I do not regard that matter as closed.
MR MAXWELL: I am indebted to your Honour.
GUMMOW J: It seems to me absolutely fundamental.
MR MAXWELL: It is absolutely fundamental and, in our respectful submission, there can be no conclusion,
with respect, other than that is what this Court found because Mr - - GUMMOW J: I am not so sure about that. The Solicitor-General goes into all of this.
MR MAXWELL: Your Honour, we note with some surprise that less than a year after that decision was
handed down, the Commonwealth is inviting this Court to reopen it and overrule it if it says what we say it
says.
GUMMOW J: The question really is whether it should have overruled Nolan. Now, I will not hold you up.
MR MAXWELL: Your Honour, in our respectful submission, this Court did overrule Nolan. Four Justices of
the Court addressed the question whether it should be overruled and each of them decided for reasons
given that it should and it is no longer the law in this country, in our respectful submission, and we will go
further and say that necessarily Pochi was at best left under a considerable cloud, if not necessarily
overruled by that overruling.
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GUMMOW J: It seems to me what I was putting to you really can be put to one side because you have to go
further in this case, and that is the real point.
MR MAXWELL: Indeed, your Honour. Plainly enough - - KIRBY J: As I understand your argument, it is that until Taylor there was clear authority that there was a
simple clear criterion for alienage, non-citizen.
MR MAXWELL: Exactly so.
KIRBY J: After Taylor, whatever is the criterion, the base has shifted.
KIRBY J: It did not have to shift further than British subjects to resolve the issue of Patterson.
MR MAXWELL: That is so.
KIRBY J: But you say, having shifted the basis, a new, stable basis must be found and therefore this case
presents the obligation to find that new, stable basis.
GUMMOW J: And what is the stable basis?
MR MAXWELL: The starting point is that the obligation of allegiance can come into existence between a
person and the Queen of Australia otherwise than by the taking out of citizenship. The next question is, by
what criteria is the establishment of that obligation to be determined - I am sorry, your Honour?
GAUDRON J: You say "can". Did Patterson go further than say at a certain time it could come into operation
by that method in respect of a certain category of people?
MR MAXWELL: That is so, but - - GAUDRON J: Yes. Well, you have to go beyond that to say that since, when? At all relevant times it has been
possible and it continues to be possible?
MR MAXWELL: Your Honour, all I need to establish is that at the date of the relevant decisions the
obligation of allegiance had been assumed by these individuals. It is quite separate, of course, from the
discussion which was necessarily engaged in for Patterson about the evolution of the Crown in right of
Australia and its separation from Britain. These are, plainly, individuals who have never been British
subjects. This is a different case. But as his Honour Justice Kirby has put, we will be inviting the Court to
explore this category of non - - GUMMOW J: We do not set off on exploration tasks. We respond to submissions and we are trying to find
what your submission is.
MR MAXWELL: Of course, your Honour.
GUMMOW J: You can tantalise us with this notion of a stable basis. The question is: what is it?
MR MAXWELL: In these cases - - GUMMOW J: Bearing in mind that Patterson was, on one view of it, all about the changing nature of the
British Commonwealth, to use that expression.
MR MAXWELL: Your Honour, we put the stable basis on three bases in these cases as set out in our
submission. First, we say that each of these individuals renounced his allegiance to his country of birth by
fleeing from a regime which could not guarantee him protection.
GUMMOW J: How do notions of allegiance work with republican systems of government? As I understand
it, the whole notion of citizenship dates back to the American and French Revolutions, where they had to
replace notions of allegiance which were monarchical with something else and they devised the notion of
citizenship. These gentlemen never owed allegiance to any sovereign, did they?
MR MAXWELL: No, though your Honour will - - KIRBY J: Although they would have been born during the reign of Prince Sihanouk. Cambodia was not a
separate colony of France; it was a protectorate. So I think that is something we would not know without
some detail.
GUMMOW J: That is right.
MR MAXWELL: But, your Honour, in our respectful submission, as a matter of principle this will not turn on
whether a person came from a country which was a monarchy or a republic. The concept of allegiance - - GUMMOW J: The point I am trying to make to you is that notions of allegiance come out of English
medieval feudalism. That is where it comes from - monarchical feudalism.
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MR MAXWELL: With respect, we fully appreciate that. As your Honours in the lengthy joint judgment
explained, the concept has developed very significantly since the original notion of personal loyalty to a
lord. It became, and it was declared in the Court of Queen's Bench in the 1880s, as your Honours pointed
out, that it changed from a personal obligation or an obligation to the sovereign in his or her personal
capacity to an obligation to the sovereign in his or her political capacity. That is just one respect in which the
discussion about allegiance in the 21st century is a different discussion from that which it would have been
under more confined notions.
HAYNE J: And it is pointed up by your proposition that each renounced allegiance to the country of his birth
because the regime of the day would not protect him.
HAYNE J: But is allegiance concerned with allegiance to the government? Is it more abstracted a notion than
allegiance to whatever regime is in power?
GAUDRON J: There is a further question of course too and that is, by whose law is this renunciation to be
determined? That was addressed in Sykes and the general principle of international law is that that is
determined by the laws of the country of which the person was a citizen or to which he or she owed
allegiance.
GAUDRON J: So it is not a simple question, I should have thought.
MR MAXWELL: No, and it is not necessary for our argument, with respect, that there have been no
renunciation.
GAUDRON J: Well - - MR MAXWELL: It is not. It happens to be the fact and it makes our cases a fortiori, but what is the critical
question is whether it can be said of the person that he has assumed the obligation of allegiance and our
submission puts it that it - - GAUDRON J: And you put that as a one-way traffic as well.
MR MAXWELL: Well, with respect, no we do not. We gratefully accept the analysis of their Honours in the
joint dissenting judgment, which points out that changes in the relationship of allegiance can occur either by
the joint act of the parties to it, the subject and the sovereign, or by the unilateral act of either, which, apart
from anything else, enables us to put to one side the old notion that allegiance was perpetual and the
natural-born subject could never give it up. The concept of naturalisation scotched that notion 100 years
ago. It can be given up by a formal act. We submit that one would expect to find a parallel notion of
renunciation by conduct, but we accept - and our learned friends say just because you have renounced your
citizenship of another country does not mean you have become a citizen of Australia. Well, we accept that.
We do not assert that the renunciation somewhere else makes you a subject of the Queen of Australia.
There needs to be an act or a course of conduct of which it can be said that this person enjoys the
protection of the Queen of Australia and owes her obligations of allegiance.
GLEESON CJ: At which stage did your clients cease to owe allegiance to Cambodia or Vietnam respectively?
MR MAXWELL: At the time they sought refuge in refugee camps or, alternatively, upon the grant of
permanent residence visas to each of them, enabling them to come from the refugee camp to Australia. At
that point, we have argued in our submission that the self-description as a refugee is the explanation or the
manifestation of the renunciation.
GLEESON CJ: They are interesting alternatives, in practice, because if the former is correct, they would have
been in the same situation even if they had been refused visas.
MR MAXWELL: That is so. Again, they were granted visas and that means that - and we will take your
Honours in due course to the findings of fact in the Tribunal in each case - each of these persons was a
refugee at the time and, as I understand it, there is no dispute about that. We do not say that an application
for refugee status was made and determined in Australia. There is no evidence that that occurred. Nor is
there any doubt but that they were refugees in the sense in which that term is understood - defined in the
Convention. Your Honours will see in the material a question arises before the Tribunal "whether the
protection obligations which Australia owed under the Convention still obtained as at the date of the
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Tribunal review?" Held: "No they don't. Conditions have changed in Cambodia or Vietnam. The protection
obligation does not subsist."
To come back to your Honour's question. The assertion of refugee status is the act of renunciation because
it is a statement that, "I cannot rely on the sovereign government of my country to protect me." Indeed,
that language is used in the Convention itself.
GLEESON CJ: Why did they need visas? I wondered if it was because they were aliens.
MR MAXWELL: Well, they otherwise had no right to enter Australia.
GUMMOW J: You seem to be asserting they did. Of course
HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/c167/" the Constitution - - MR MAXWELL: As a matter of international law - - GUMMOW
J:
Forget
about
international
law,
because
HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/c167/" the Constitution operated in some magical
way.
MR MAXWELL: No, your Honour. We conceded before Justice Hayne that these people had not - I think we
conceded they were aliens at the point of arrival. We will seek to qualify that concession by the protection
allegiance argument we have made in our reply. We start with the proposition that Australia owed
obligations of protection to these refugees under the 1951 Convention. At that point there was an
acceptance of what is described in the Refugee Convention in these terms, and it is in the material, a person
is, "unable or . . . unwilling to avail himself of the protection of that country".
What is helpful in this analysis, in our respectful submission, is what Sir John Salmond, in the Law Quarterly
Review article that we will take your Honours to, and the House of Lords in Joyce refer to as "the reciprocal
obligations of protection by the sovereign to the subject and allegiance by the subject to the sovereign."
KIRBY J: Could I just ask a factual matter, that is partly a legal matter. Was there any impediment to your
clients becoming naturalised Australian citizens?
MR MAXWELL: Not that I am aware of, your Honour, no. No application was made. At a certain point they
may have, by their criminal convictions, become unable to satisfy the "good character" requirement.
KIRBY J: Does one draw any inference at all from the fact that in the interval between their arrival as
children and their evictions, that they could have signified their allegiance to the Queen of Australia and the
people of Australia by becoming citizens but omitted, failed, refused to do so?
MR MAXWELL: In our respectful submission, no. One draws no inference because - and this comes back to
the fundamental point - the assumption of citizenship - we have put this in terms in the outline - is a
sufficient condition of allegiance but it is not a necessary condition, and that is what Patterson held. If that
is correct, then the non-taking out of citizenship does not disqualify a person from being a subject of the
Queen of Australia.
GAUDRON J: But are we not a little bit off the track here? From a constitutional point of view we are
concerned with aliens and non-aliens. At least in the case of persons who are not and never have been
British subjects is it not the case that it is well within the legislative power of the Parliament to decide and
define who are and who are not aliens?
CALLINAN J: That is what Mr Justice Barton said in Ferrando v Pearce.
GAUDRON J: But is that not the case, that it has legislative power to define who are and who are not aliens?
MR MAXWELL: Yes, but, with respect, to exclude from a statutory definition of aliens - let me put that
differently - to include within a statutory definition of aliens someone who is not is beyond power.
GLEESON CJ: But if granting a visa to someone produces the result that they are not an alien, then the entire
scheme of the Migration Act 1997 has miscarried, has it not? Its long title is it is "An Act relating to the entry
into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens". Visas
can be cancelled, can they not?
By the reasoning of the Framers of the Constitution (the Delegates to the Constitution Conventions) a subject to
the Crown was anyone who was subjected to the laws of the Crown regardless if they were aliens or not.
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SHAW V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

HYPERLINK "http://www.austlii.edu.au/au/cases/cth/high_ct/2003/72.html" [2003] HCA 72
9 DECEMBER 2003
B99/2002
10. However, contrary to the submissions for the applicant, the result of such a consideration of his position is
his classification as an alien for the purposes of HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/num_act/c167/s51.html" s 51 (xix) of the Constitution. Much of
the applicant's argument proceeded from the premise that, because the expression "British subject" could
be applied to him, he was not an alien. That premise is flawed. First, "British subject" is not a
constitutional expression; it is a statutory expression. Secondly, and more fundamentally, if "British
subject" was being used as a synonym for "subject of the Queen", an expression which is found in the
Constitution, that usage would assume that there was at the time of federation, and there remains today,
a constitutional and political unity between the UK and Australia which 100 years of history denies.
Hansard 2-3-1898 Constitutional Convention Debates
Mr. BARTON.- I did not say that. I say that our real status is as subjects, and that we are alike subjects of
the British Crown.

Mr. MUNRO:
. I am proud of being a citizen of the great British empire, and shall never fail to be proud of that position.

Mr. HOLDER:
because I take it that the legal bonds which bind us to the mother-country, to the great British Empire,

Mr. BARTON:
The association of the Queen with the action of the commonwealth is distinct, and is firmly embedded in
the whole bill. If that is done, there can be no association of the idea of republicanism with this bill.
Mr. BARTON.-Yes; and here we have a totally different position, because the actual right
which a person has as a British subject-the right of personal liberty and protection
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under the laws-is secured by being a citizen of the States. It must be recollected that
the ordinary rights of liberty and protection by the laws are not among the subjects
confided to the Commonwealth.

Dr. QUICK.we were not in any way interfering with our position as subjects of the British Empire. It would be beyond
the scope of the Constitution to do that. We might be citizens of a city, citizens of a colony, or citizens of a
Commonwealth, but we would still be, subjects of the Queen.

Mr. BARTON.We are subjects in our constitutional relation to the empire, not citizens. "Citizens" is an undefined term,
and is not known to the Constitution. The word "subjects" expresses the relation between citizens of the
empire and the Crown.
Sir GEORGE TURNER.-Is a naturalized alien a subject?
Mr. BARTON.-He would be a citizen under the meaning of this clause.
Sir GEORGE TURNER.-Suppose you say "subject" without definition, would that include naturalized
aliens?
Mr. BARTON.-Yes. Dr. Quick's definition is: Persons resident in the Commonwealth, either natural-born or
naturalized subjects of the Queen, and if they are subject to no disabilities imposed by the Parliament they
shall be citizens of the Commonwealth. Why not use the word "subject," and avoid the necessity of this
definition?
And
Mr. OCONNOR.-Exactly. It has two meanings, but we are only dealing now with the one meaning-the
general meaning. Mr. Isaacs' reference shows the danger that might be incurred by using the word
"citizen," because it might have the restrictive meaning the last decision imposes. All we mean now is a
member of the community or of the nation, and the accurate description of a member of the community
under our circumstances is a subject of the Queen resident within the Commonwealth."
Mr. SYMON.-A person for the time being under the law of the Commonwealth.
Mr. OCONNOR.-A person for the time being entitled to the benefits of the law of the Commonwealth.
And
Mr. BARTON (New South Wales).-If it is a fact that citizens, as they are called, of each state are also
citizens of the Commonwealth, there may be some little doubt as to whether this is not providing for
practically the same thing.
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Mr. WISE.-No, there may be territories that is what I want to provide for.
Mr. BARTON.-In other portions of the Bill we use the words "parts of the Commonwealth" as including
territories, so that the object of Mr. Wise would be met by using the words "citizens of every part of the
Commonwealth" or "each part of the Commonwealth."
And
Mr. BARTON.We are subjects in our constitutional relation to the empire, not citizens. "Citizens" is an undefined term,
Sir GEORGE TURNER.-Is a naturalized alien a subject?
Mr. BARTON.-He would be a citizen under the meaning of this clause.
Sir GEORGE TURNER.-Suppose you say "subject" without definition, would that include naturalized
aliens?
Mr. BARTON.-Yes. Dr. Quick's definition is: Persons resident in the Commonwealth, either natural-born or
naturalized subjects of the Queen, and if they are subject to no disabilities imposed by the Parliament they
shall be citizens of the Commonwealth. Why not use the word "subject," and avoid the necessity of this
definition?
Dr. QUICK.-This definition does not interfere with the term "subject" in its wider relation as a member of
the empire or subject of the Queen.
Mr. BARTON.-No, but the definition of "citizen" as a natural-born or naturalized subject of the Queen is
co-extensive with the ordinary definition of a subject or citizen in America. The moment be is under any
disability imposed by the Parliament be loses his rights.
And
Dr. QUICK.-The regulation would have to specify the ground of disability.
Mr. BARTON.-Yes; but my honorable friend says not under any disability imposed by the Parliament.
Would not the difficulty be that if he were under any slight disability for regulative purposes, all his rights of
citizenship under the Commonwealth would be lost?
Mr. KINGSTON.-There might be a special disability on minors.
Mr. BARTON.-That might be one of the disabilities. Of course here the disabilities as to minors would not
matter much, but I would like to put this consideration to Dr. Quick, that if we use the term "subject," or a
person subject to the laws, which is a wider term, we shall avoid the necessity for a definition of "citizen."
You might say a subject or resident being the subject of the Queen.
And
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Mr. SYMON.-There is no man in Australia who is more profoundly versed in constitutional law than Mr.
Isaacs, and he knows that every point and every question has been the subject of more or less debate and
discussion, and will be until the end of time.
The words "subject," "person," and "citizen" can be made subjects of controversy at all times if occasion
requires it. At the same time, it does not affect the principle that there should be a definition of "citizen,"
either in the form suggested by Dr. Quick or by Mr. Barton.
And
Mr. ISAACS (Victoria).-I am afraid that the amendment is far too wide, unless we say that the disabilities
imposed by Parliament may extend to birth and race. This would, notwithstanding the rights conferred
under clause 52, deprive Parliament of the power of excluding Chinese, Lascars, or Hindoos who
happened to be British subjects.
And
Mr. GLYNN.I would like to mention, in connexion with what Mr. Isaacs said as to aliens, that this provision would not
interfere in the slightest degree in the way of preventing aliens from coming in, because it is only when
the aliens get inside the Commonwealth that this provision is to apply to them. The decision of the Privy
Council in the case of Ah Toy v. Musgrove was that an alien had no right to land here, but that decision does
not affect his citizenship after he has landed.
And
Mr. WISE (New South Wales).-My mind has wavered very much during this debate. I have come to the
conclusion that my original suggestion was wrong, that the best form of all in which the original
amendment could be moved is [start page 1793] that in which it was proposed by Mr. Symon, and that then
no definition such as is suggested by Dr. Quick will be really required, because, if we allow each state to
make its own standard of citizenship, we shall reserve all the rights of the states, and obviate all the
difficulties contemplated by Mr. Trenwith, by retaining to each state the right to determine the
qualification of its own citizens. And then we will make a provision that is necessary as part of the Federal
Constitution, that when a man has acquired citizenship in one state he shall be entitled to the right of
citizenship in the other states.
And
Dr. COCKBURN (South Australia).-If the word "citizen" simply means resident or inhabitant, why should
we go to all this trouble about it? If it means inhabitant, what is the use of saying the inhabitant of one
state going to another state shall be an inhabitant of that other state? It seems to me that if you are going
to use the word "citizen" in the sense of being equal to resident or inhabitant, and it is to have no other
meaning such as has always been attached to it, we had better leave out the clause.
And
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Mr. OCONNOR (New South Wales).-I would suggest that Mr. Symon should accept the amendment
suggested by Mr. Barton, so that his clause shall readEvery subject of the Queen resident in any state or part of the Commonwealth shall be entitled to all
privileges and immunities of subjects resident in other states or parts of the Commonwealth.
I am altogether in favour of the principle of Mr. Symon's amendment; but the word "citizen" creates a
difficulty. If, instead of the word "citizen," we use the words "Every subject of the Queen resident in a
state," it really means the same thing. The meaning to be given to the word "citizen" in Mr. Symon's
amendment is not the narrow limited meaning of the citizen who can exercise the franchise, but it is the
broad general meaning which the word has been held to have under the United States Constitution. It has
been decided there that the word "citizen" has, [start page 1796] in a general and wide sense, this
meaning:In its broad sense the word is synonymous with subject and inhabitant, and is understood as conveying
the idea of membership of the nation, and nothing more.
And
Dr. COCKBURN.-But the present proposal if carried would raise an initial difficulty in framing special laws.
It might be urged that it was necessary to discriminate between residents who are subjects of the Queen
and those who are not, and the amendment would introduce an element which would give rise to a great
deal of trouble in the future.
Mr. HIGGINS.-You want to keep both classes out.
Dr. COCKBURN.-We desire always to deal with Asiatics on broad lines, whether they are subjects of the
Queen or not; and in South Australia, and, I believe, other colonies, those lines of distinction are
obliterated. In South Australia we make no difference between Chinese from Hong Kong and those from
other parts of China. That, I think, is the most effective way of dealing with this matter.
Again;
We are subjects in our constitutional relation to the empire, not citizens. "Citizens" is an undefined term,
Clearly, the Framers made clear it is not the relationship between a subject and some Queen, but more
significantly the relationship between the subjects as citizens of the empire and the Crown. One must therefore
be a citizen of the empire to have a relationship with the Crown.
If one is not a subject of the Crown residing as a citizen in the empire then no relationship exist. This, the High
Court of Australia never addressed as such. It simply sought to bypass this kind of definition, being it unaware of it
all together or not. But, the Queen of Australia is no Queen recognised by the British Crown, or can be Queen of
the Empire. It is a fictitious name and title that can hold no water, so to say, to issue proclamation in that title, as
to do so would create a fictitious appointment not worth the paper it is written upon.
To get a bit of an understanding about internal affairs and external affairs the following may be considered;
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Dr. COCKBURN: I should like to justify the vote that I shall have to give on this matter, because it will be
rather dissonant with the votes I have been giving throughout the sittings of the Convention. I shall vote for
the clause as it stands, and also for the amendment intended to be proposed by the hon. member, Mr.
Gordon, because I take it to be essential to federation. It is the very definition of a federation that, as
regards external affairs, the federation shall be one state, and only have one means of communication, and
in regard to internal affairs the federation should be many statesMr. GORDON: These are not internal affairs!
Dr. COCKBURN: These are internal affairs, and it is one of the principles of federation that, in internal
affairs, there should be complete autonomy. In local affairs, why do you want to go outside the state at all?
For the alteration of the constitution of a state, why should you go outside the boundary of that state?
Effectively, external affairs referred to in the constitution deals with nations/territories not within the
Commonwealth of Australia and/or under the British parliament. The Delegates did refer to the Home Office
when referring to contact with the British government, as it is the home of the Commonwealth of Australia,
which exist only because of the States (formally colonies) being granted Letters Patents to have their own limited
self government under British law.
Mr. BARTON: The hon. member who is in the chair will be able to inform you. He said:
I do not think there is in this Convention a stronger advocate of State rights and State interests than I am;
but still I strongly support the clause as it stands, for it seems to me that one of the very fundamental ideas
of a Federation is that, so far an all outside nations are concerned, the Federation shall be one nation, that
we shall be Australia to the outside world, in which expression. I include Great Britain; that we shall speak,
if not with one voice, at all events, through one channel of communication to the Imperial Government;
that is, as it has been put, we shall not have seven voices expressing seven different opinions, but that Her
Majesty's Government in Great Britain shall communicate to Her Majestys Government in Australia
through one channel of communication only.
Again;
Her Majesty's Government in Great Britain shall communicate to Her Majestys Government in Australia
It is clear that the Framers of the Constitution referred to the one and only person and any purported title of a
legal fiction of Queen of Australia cannot amend or purport to amend the Constitution, or the application of the
Constitution.
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Mr. BARTON (New South Wales).-The Drafting Committee could not interpret the intentions of the
Convention, excepting in so far as they found them expressed in the Bill, in the amendments, or in the
debates. We have endeavoured to give effect simply to what the Convention have said and done.
And
Sir RICHARD BAKER (South Australia).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.

Mr. GLYNN (South Australia)[12.35]: I have not the Federal Council Bill before me; but I believe that that bill
contained the words "sailing between the ports of the colonies." The bill was sent home with those words in
it; but her Majesty's advisers at home deliberately changed the wording of the measure so as to give the
Council wider jurisdiction. There was a limitation in the bill which does not appear in the act, and the
Imperial authorities must have made this alteration for some specific purpose. They could not have
accidentally inserted the words "port of clearance, or." There is no danger of conflict between the laws of
the commonwealth and the Imperial law. The moment a new act is passed in England which conflicts with
any legislation passed by the commonwealth, that act will to the extent of the difference abrogate the
legislation under the constitution of Australia. At the present time there is never any conflict. Our Marine
Board and navigation acts are not in conflict with the English merchant shipping acts; but they give us
jurisdiction, not to the 3 miles limit, but within Australian waters, as specifically defined in these acts, that
is, between port and port. Without these acts we should not have this jurisdiction. As I understand the
law, it was decided in the case of the Franconia that, the 3-mile limit only applied in connection with
intercolonial disputes, that limit being arrived at in the first instance because it [start page 247] was then
the range of a cannon shot; and that civil and criminal jurisdiction stopped at low-water mark. Originally
there was no jurisdiction beyond the limits of mean low-water mark; but that jurisdiction has been
extended by legislation, and the Imperial authorities deliberately changed words in the Federal Council
Bill which would place a limitation upon the existing jurisdiction as defined by our local acts, so as to
amplify it, and make it apply to any vessel leaving our ports for foreign parts, or coming from foreign parts
to the colonies. They did this deliberately, and in view of the fact that there was no possibility of
conflicting decisions being arrived at under the proposed constitution, we have no criminal jurisdiction at
all, so that if a crime is committed on board a ship coming to Australia, the criminal will be tried according
to the laws of Great Britain.
We cannot give a sanction to a law

without imposing some penalty or punishment!
The Hon. E. BARTON:
Mr. GLYNN: The hon. and learned gentleman is quite right; but we have only power to impose such
penalties as will operate as sanctions for the civil legislation under clause 52.
The Hon. E. BARTON: We cannot establish a new criminal offence!
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Mr. GLYNN: No, unless it is part of a sanction to enforce the obligation of a civil law. So that if an offence
is committed on board a ship coming to the commonwealth it will have to be dealt with according to the
law of England, not according to the law of the commonwealth. Seeing that the English authorities
deliberately changed the wording of the Federal Council Bill, although there is no possibility of the
legislation of the colonies clashing with Imperial legislation, because English legislation must abrogate
colonial legislation to the extent of the difference between them, I think we should accept the words used
by the Imperial advisers of her Majesty.
The latter about abrogating colonial laws do not apply when it comes to the Commonwealth of Australia
Constitution Act 1900 (UK) in that this provides that amendments of the Constitution can only be made by a
successful section 128 referendum. As such, it excludes powers of the Imperial government (British Parliament) to
amend the Constitution. However, State laws remain subject to Imperial laws and are abrogated where they are in
conflict of Imperial laws.
Again;
They did this deliberately, and in view of the fact that there was no possibility of conflicting decisions
being arrived at under the proposed constitution, we have no criminal jurisdiction at all, so that if a crime
is committed on board a ship coming to Australia, the criminal will be tried according to the laws of Great
Britain.
The Statement;
There is no danger of conflict between the laws of the commonwealth and the Imperial law. The moment
a new act is passed in England which conflicts with any legislation passed by the commonwealth, that act
will to the extent of the difference abrogate the legislation under the constitution of Australia. At the
present time there is never any conflict. Our Marine Board and navigation acts are not in conflict with the
English merchant shipping acts; but they give us jurisdiction, not to the 3 miles limit, but within Australian
waters, as specifically defined in these acts, that is, between port and port.
Is not correct in that while normally the imperial government can make specific legislation to amend a
constitutional enactment, in this case it has ousted itself of doing so by including the Section 128 provision.

Mr. SYMON:
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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In the Shaw case the high Court of Australia stated;

42.
Jason Shaw, the applicant, migrated to Australia with his parents in 1974. He was then two years of age
and a citizen of the United Kingdom. Along with his parents, he was granted a permanent entry permit.
Under reg 4 of the Migration Reform (Transitional Provisions) Regulations (Cth), after 1 September 1994 the
permanent entry permit held by the applicant continued in effect as a transitional (permanent) visa that
permitted the applicant to remain in Australia indefinitely. He has never left Australia since arriving in 1974.
However, he has never become an Australian citizen.
Again;
However, he has never become an Australian citizen.
The judges simply seemed not to realize that they were talking about citizenship involving political rights and not
at all being about nationality.
Mr. SYMON.I am not going to put that in the power of any one, and if it is put in the power of the Federal Parliament,
then I should feel that it was a very serious blot on the Constitution, and a very strong reason why it should
not be accepted. It is not a lawyers' question; it is a question of whether any one of British blood who is
entitled to become a citizen of the Commonwealth is to run the risk-it may be a small risk-of having that
taken away or diminished by the Federal Parliament! When we declare-"Trust the Parliament," I am willing
to do it in everything which concerns the working out of this Constitution, but I am not prepared to trust the
Federal Parliament or anybody to take away that which is a leading inducement for joining the Union.
Therefore, Mr Shaw was an Australian citizen the moment he entered the Commonwealth of Australia and
began to reside in a State by obtaining State citizenship! He remained for all purposes a subject of the Queen
and as the Commonwealth of Australia is a limited POLITICAL UNION and not a nation in its own rights one cannot
have a nationality of being an Australian (as incorrectly referred to being Australian citizenship) as no such nation
exist!
To hold that the Commonwealth of Australia is an independent nation would mean to claim that the States no
longer exist as such. The federation then was a confederation!
For the extensive set out above, it is clear that Jason Shaw was an Australian citizen from the moment he came to
reside in a State in the Commonwealth of Australia.
The High Court of Australia has only constitutional powers to interpret the meaning of the Constitution provisions
by the intentions of the Framers and it has no constitutional powers to pursue to bring within the meaning of
constitutional provisions that were never intended by the Framers to be so!
Ex Parte Lovell; Re Buckley (1938) 38 S.R. N.S.W. 155 at 158; 55 W.N. 63 Jordan C.J.
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This court however must take the act as it finds it, and cannot do violence to its language in order to bring
within its scope, cases, which although within its mischief are not within its words.
The following ought to be applied perhaps to Shaw, Sue v Hill and the Sykes v Cleary cases, to mention a few, this
as those cases, in my view were based upon ill conceived reasoning, and not at all as to the intentions of the
framers of the Constitution;
Duncan v Queensland (1916) 22 CLR 556, 582 (per Griffith C.J.)

That case (a previous decision of the High Court, Foggit, Jones & Co v NSW (1915) 21 CLR 357) was very
briefly, and I regret to say, insufficiently argued and considered on the last day of the Sydney sitting..... The
arguments which now commend themselves to me as conclusive did not find entrance to my mind. In my
judgement that case was wrongly decided, and should be overruled.
The Shaw case;

45. In July 2001, the Minister cancelled the applicant's visa on the ground that he had a substantial criminal
record and did not pass the character test as defined by HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html" s 501 (6).
HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html"
501 does not apply to British citizens who arrived in Australia before 3 March 1986
Section
46. There are only two heads of federal constitutional power that could arguably extend the operation of
HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html" s 501 to a
person such as the applicant who is a British citizen and who arrived in Australia in 1974. The first is the
immigration power; the second is the aliens power HYPERLINK
"http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l "fn49" [50] . A long line of authority
establishes that the immigration power does not authorise the Parliament to make laws with respect to
persons who have immigrated to Australia, made their permanent homes here and become members of
the Australian community HYPERLINK "http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l "fn50"
[51] . Accordingly, the immigration power did not authorise the enactment of HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html" s 501 in so far as it
purports to apply to the applicant.
47. The aliens power, however, gives the Parliament greater power over immigrants than the immigration
power. In Nolan v Minister for Immigration and Ethnic Affairs HYPERLINK
"http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l "fn51" [52] , this Court held that any
immigrant who has not taken out Australian citizenship is an alien for the purpose of HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s51.html" s 51 (xix) of the
Constitution. On that view of the aliens power, the Parliament can legislate for the deportation of
persons who are British citizens and have been permanent residents of Australia for many years. In
Nolan, the Court upheld an order of the Minister deporting Nolan, a citizen of the United Kingdom who
had lived permanently in Australia since 1967 but who had not taken out Australian citizenship.
48. In Re Patterson; Ex parte Taylor HYPERLINK "http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l
"fn52" [53] , however, a majority of this Court held that Nolan should be overruled in so far as it held
that all British citizens living in Australia who had not taken out Australian citizenship were aliens for the
purpose of the Constitution. Taylor was a British citizen who had arrived in Australia in 1966 and had since
lived here permanently. However, he had not taken out Australian citizenship. A majority of the Court
held that HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html"
s 501 of HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/" the Act
could not constitutionally authorise the deportation of Taylor.
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102
49. As I pointed out in Re Minister for Immigration and Multicultural Affairs; Ex parte Te HYPERLINK
"http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l "fn53" [54] , Re Patterson has no ratio
decidendi. The four majority Justices were Gaudron, Kirby and Callinan JJ and myself. Gaudron J held that
Taylor was a member of the body politic that constituted the Australian community and that British
citizens who were members of that body politic and had been in Australia before 1987 HYPERLINK
"http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l "fn54" [55] , were not aliens within the
meaning of the Constitution. Kirby J held that Taylor was not an alien when he arrived in Australia, that
he "had been absorbed into the people of the Commonwealth" HYPERLINK
"http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l "fn55" [56] and that the Parliament could
not retrospectively declare him to be an alien. I held that British immigrants who settled in Australia
before 1973 were subjects of the Queen of Australia and could not be "aliens" for the purpose of the
Constitution. I selected 1973 as the earliest date on which the constitutional power to legislate with
respect to aliens could apply to British immigrants. I did so because 1973 was the year in which the
Parliament enacted the HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/rsata1973258/" Royal Style and Titles Act 1973
(Cth). But I expressed the view that the relevant date "maybe later" HYPERLINK
"http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l "fn56" [57] . Callinan J agreed with the
reasoning of both Kirby J and myself.
While a judge of the High Court of Australia may elect judicial powers because of some
HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/rsata1973258/" Royal Style and Titles Act 1973 (Cth).
The truth is that this latter Act is irrellevant to the issue of constitutional powers regarding citizenship.
Constitutionally,
Mr. SYMON.I am not going to put that in the power of any one, and if it is put in the power of the Federal Parliament,
then I should feel that it was a very serious blot on the Constitution, and a very strong reason why it should
not be accepted. It is not a lawyers' question; it is a question of whether any one of British blood who is
entitled to become a citizen of the Commonwealth is to run the risk-it may be a small risk-of having that
taken away or diminished by the Federal Parliament! When we declare-"Trust the Parliament," I am willing
to do it in everything which concerns the working out of this Constitution, but I am not prepared to trust the
Federal Parliament or anybody to take away that which is a leading inducement for joining the Union.
Therefore, becoming a citizen of the Commonwealth of Australia is only achievable by becoming a state citizen
first.
The fact that the Certificate of Australian Citizenship states;
QUOTE
Certificate of Australian Citizenship
GERRIT HENDRIK SCHOREL

Born on 7 th June 1947
having applied for a Certificate of Australian Citizenship, having satisfied the conditions prescribed by the
Australian Citizenship Act 19448 for the grant of such Certificate
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and having undertaken to fulfil the responsibilities of a citizen.

END QUOTE
It must be clear that no kind of application can be made for this and neither can any be granted by the
Commonwealth of Australia in that it is AUTOMATICALLY obtained upon obtaining State citizenship.
Therefore, what is really occurring was that I applied to my understanding to naturalize and by this dispose of my
Dutch nationality to become a British national within the meaning of Subsection 51(xix) of the Constitution, and
the Commonwealth of Australia purport this to be somehow to be Australian citizenship.
Barton J,
the parliament cannot give the word a meaning

not warranted by s73 of the Constitution.
Commonwealth v Brisbane Milling Co. Ltd. (1916) 21 C.L.R. 559; A.L.R. 272.
Likewise, the Commonwealth of Australia cannot turn naturalization into something else not contemplated by the
Framers of the Constitution.
Subsection 51(xix) naturalization powers had nothing to do with political rights, that are included in citizenship, but
related to alliance to the British Crown.
Australia is a continent, and was so before Federation, at least that is what I perceived was applicable also at the
time of Federation.
The Framers of the Constitution made clear that at all official functions the national anthem was to bless the
Monarch.
Mr. GLYNN:
The foundations of our national edifice are being laid in times of peace; the invisible hand of Providence
is in the tracing of our plans. Should we not, at the, very inception of our great work, give some outward
recognition of the Divine guidance that we feel? This spirit of reverence for the Unseen pervades all the
relations of our civil life. It is felt in the forms in our courts of justice, in the language of our Statutes, in
the oath that binds the sovereign to the observance of oar liberties, in the recognition of the Sabbath, in
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the rubrics of our guilds and social orders, in the anthem through which on every public occasion we
invocate a blessing on our executive head, in our domestic observances, in the offices of courtesy at our
meetings and partings, and in the time-honored motto of the nation.

Sir JOHN DOWNER.Thus we are forced-after, forsooth, the 1891 Convention and the three sessions of this Convention-back to
the elementary consideration of whether this body is to be analogous to the position of the House of Lords
in [start page 2036] England, and we have the English Constitution brought in, and an appeal made through
our patriotism, and "God save the Queen," and all that sort of thing. That is not the question which we have
to deal with. We have to do our best to arrange a Constitution which has very little analogy to the English
Constitution, but, at the same time, from the circumstances of our birth and the love of country, we have to
adhere to the English Constitution as nearly as is consistent with the altered condition of things.
Whatever the argument might be of those seeking to advocate that the Commonwealth of Australia is an
independent nation, the truth is that constitutionally it never is and never can be.

Mr. SYMON (South Australia).-I beg to moveI wish to clear away the misconception in the first place that I have any objection whatever to the word
"Commonwealth," or to the use of the word "Commonwealth," in this Bill. I have no objection to that where
it is confined to the expression of the political Union. In the preamble honorable members will find that
what we desire to do is to unite in one indissoluble Federal Commonwealth-that is the political Union"under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby
established." Honorable members will therefore see that the application of the word Commonwealth is to
the political Union which is sought to be established. It is not intended there to have any relation whatever
to the name of the country or nation which we are going to create under that Union. The second part of the
preamble goes on to say that it is expedient to make provision for the admission of other colonies into the
Commonwealth. That is, for admission into this political Union, which is not a republic, which is not to be
called a dominion, kingdom, or empire, but is to be a Union by the name of "Commonwealth," and I do
not propose to interfere with that in the slightest degree. The first clause says-This Act maybe cited as the
Commonwealth of Australia Constitution Act." I assent to all that. Then comes clause 3, which says it shall
be lawful for the Queen, by and with the advice of Her Majesty's Most Honorable Privy Council, to declare
by proclamation that, on and after a day therein appointed, not being later than one year after the passing
of this Act, the people of the colonies enumerated shall be united in a Federal Constitution under the name
of-I say it ought to be "of Australia." Why do we want to put in "the Commonwealth of Australia"? We are
there by our Constitution giving the name to our country, and, to the united people who are to be
established as a nation under the Constitution. By what name, I would like to ask honorable members, will
they call this Federal Union? It will be called by the name Australia, whether we like it or not.
Again;
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105
That is, for admission into this political Union, which is not a republic, which is not to be called a
dominion, kingdom, or empire, but is to be a Union by the name of "Commonwealth," and I do not
propose to interfere with that in the slightest degree.
The Commonwealth of Australia is a LIMITED POLITICAL UNION by the Colonies (now States) As like the
EUROPEAN UNION is in Europe.
No one would seek to argue that the European Union is a country. Yet, it doesnt matter if one is a British national,
a Dutch national, Frenchman, German or else they are all citizens of the European Union
Citizenship is not limited to the nationality of the person but by the territory in which the person resides that forms
part of the European Union.
No one could dream of the European Union to become some Monarchy, Republic or Dominion. Likewise, the
Commonwealth of Australia likewise cannot be a Monarchy, Republic or Dominion. It is a federation out of the
States.
The States themselves can perhaps become independent in time and then assume to become a Republic or
Monarchy but not while they remain dominions. If the states cannot become Monarchies or Republics in the
current climate then their Agent, so to say, the Commonwealth of Australia hardly can take on some different
constitutional position.
The term citizenship was not at all associated with nationality but rather covered any subject of the Queen
residing within the Commonwealth of Australia or for that the continent Australia.
The terms Australian citizen, Australian citizens , Australian citizenship, Commonwealth citizens, federal
citizen, citizen of the Commonwealth were used ongoing by the Framers of the Constitution, as shown below,
and as such were terms not as to nationality but in regard of citizenship as being a resident in the colonies (now
States) and the Commonwealth of Australia. Therefore any constitutionalist, as I am, is or should be aware that
the term Australian citizenship cannot be held to relate to nationality. Neither that there can be an Australian
nationality merely because some judges happen to desire to make such a declaration as the proper powers to
legislate for this is to follow the procedures within Section 128 of the Constitution.
13-02-1890 Re; Australian citizen

13-03-1891 Re; Australian citizens
Re; dual citizenship
26-03-1897 Re; citizen of the Commonwealth
29-03-1897 Re; Dual citizenship
30-03-1897 Re; federal citizen
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Re; citizen of the Commonwealth
15-04-1897 Re; Dual citizenship
Re; Commonwealth citizenship
28-01-1898 Re; Australian citizenship
Re; Commonwealth citizens
Re; federal citizenship
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107

Such as Hansard 8-2-1898 Constitution Convention Debates

Mr. SYMON.-Yes. Mr. Wise asked why should New South Wales or Victoria-to take a case which is extremely
unlikely to occur-prohibit a citizen of the neighbouring colony from acquiring property in the legislating colony, or
only allow him to acquire it under adverse conditions? But why not? The whole control of the lands of the state is
left in that state. The state can impose what conditions it pleases-conditions of residence, or anything else-and I
am not aware that a state has surrendered the control of the particular administration of its own lands, or of
anything that is left to it for the exercise of its power and the administration of its affairs. I would much prefer, if
there is to be a clause introduced, to have the amendment suggested by Tasmania, subject to one modification,
omitting the words-"and all other persons owing allegiance to the Queen." That would re-open the whole
question as to whether an alien, not admitted to the citizenship here-a person who, under the provisions with
regard to immigration, is prohibited from entering our territory, or is only allowed to enter it under certain
conditions-would be given the same privileges and immunities as a citizen of the Commonwealth. Those words,
it seems to me, should come out, and we should confine the operation of this amendment so as to secure the
rights of citizenship to the citizens of the Commonwealth. I think, therefore, that with some modification the
amendment suggested by Tasmania would be a proper one to adopt.
And
Mr. KINGSTON.-I say we are creating a Commonwealth in which I hope there will be a federal citizenship,
and I shall be glad indeed to see the powers of the Federal Parliament enlarged to enable that body to
legislate, not only with reference to naturalization and aliens, but also with reference to the rights and
privileges of federal citizenship.
An HONORABLE: MEMBER.-What is the meaning of citizenship?
Mr. KINGSTON.-It is not defined here, but it ought to be defined in the Constitution, or else we ought to
give power to the Federal Parliament to define it. And, after having defined what shall constitute Australian
citizenship for the purposes of the Commonwealth, we ought to carefully prevent any state legislating in
such a way as to deprive any citizen of the Commonwealth of any privileges which citizenship of the
Commonwealth confers within its borders. I have the honour to come from a state which has already
adopted a system of absentee taxation, but I do not hesitate to say, speaking on my own individual account,
that I think the continuance of that system, applied to citizens of the Commonwealth resident in other
states of the Commonwealth, would be a great mistake and an unfederal act.
Mr. HIGGINS.-If a rich South Australian went to live in Tasmania, on account of the cool climate, would
you allow the imposition of the absentee tax on him?
Mr. KINGSTON.-I do not think it ought to be imposed on him.
And
An HONORABLE MEMBER.-How would that affect a tax on absentees?
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Mr. WISE.-It would give full power to impose a tax on absentees outside the Commonwealth, but not
within it. There [start page 675] should be no absentees within the Commonwealth after federation. I do
not see, how, after federation, a man can be regarded as an absentee at Sydney when he lives in
Melbourne. If we are to have federation, the idea that when a man moves from one part of the
Commonwealth into another he becomes an absentee, or ceases to be an Australian, is one that must
vanish, and we ought, as far as our Constitution will permit us, to do everything to make it vanish quickly. It
is a survival of the old idea that there is a distinctive citizenship in a Victorian, and a distinctive citizenship in
a New South Wales man. That is the idea which I am endeavouring to destroy by supporting the
amendment of Tasmania, that Australian citizenship, and that alone, shall be recognised in every part of the
Federation. The way to secure that is to provide in the clearest terms, as Tasmania suggests, that no local
Parliament can have any authority to, in any way, abridge the citizenship of an Australian.
Mr. REID (New South Wales).-I really think that the constant attempts which are being made to interfere
with the rights of the states, in matters which are left to them expressly, is becoming quite alarming. There
are a number of general words already in this Constitution which, I fear, may be used so as to almost
destroy the independent powers of legislation of the states, with reference to every conceivable subject
that they have left to them.
For the above, and what already has been placed before on file in previous proceedings the issue therefore is that
if the Commonwealth of Australia holds that Australian citizenship purports some kind of Australian nationality
then this is ULTRA VIRES, as no such constitutional powers were granted by the Imperial parliament and neither by
any Section 128 referendum. Section 51(xix) only provides for naturalization of aliens to be made British
nationals.
The problem with this is that if the Australian Citizenship Act 1948 purports to be Australian nationality then this
likewise is unconstitutional and so ULTRA VIRES.
If therefore the Constitution of the State of Victoria relies upon the Australian Citizenship Act 1948 as to provide
State franchise then this is also ULTRA VIRES, as an the State cannot rely upon an unconstitutional enactment.
If the Australian Citizenship Act 1948 is purporting to grant citizenship as to refer to political rights then that too
would be unconstitutional, and so ULTRA VIRES.
If the AUSTRALIAN CITIZENSHIP referred to in the Australian Citizenship Act 1948 in fact is and remains to
mean that a person is naturalized to be a British national, then in any case it is ULTRA VIRES where it purports to
define/declare the nationality of any person born within the States, as any subject born within the realm of the
King (Queen) is automatically a national and so a subject of the British Crown. Any reliance by the State
Constitution to allow for franchise based upon a unconstitutional provision in that regard also remains ULTRA
VIRES.
It ought to be kept in mind that in 1948 most likely no one really has a slightest understanding and perception as to
what was constitutionally appropriate. Whatever was enacted at the time by ill conceived perceptions cannot
make it lawful. It remains ULTRA VIRES for so far it is beyond constitutional powers or exceeding constitutional
powers.
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As the Framers of the Constitution made clear that the Commonwealth of Australia could put a disability to any
alien upon naturalization to obtain citizenship, this by legislation any race is subjected to provided within
subsection 51(xxvi) of the Constitution or otherwise being limited, such as that a person naturalized cannot obtain
citizenship within, say, 2 years of naturalization, then a Certificate of Australian Citizenship cannot be granted to
anyone. For example, since the 1967 referendum that provides for Aboriginals to be dealt with under the race
provisions of Section 51(xxvi) constitutionally not a single Aboriginal can have citizenship involving franchise as
they are constitutionally barred once the Commonwealth of Australia enacted legislation within its race
constitutional powers.
Likewise, while the race powers did not give the Commonwealth of Australia any powers to legislate against the
general community the fact that the Commonwealth of Australia nevertheless did so and so with the Racial
Discrimination Act, by this in effect it also robbed each and every citizen of their right to have franchise and indeed
be a Member of Parliament!
Because Australian citizenship, albeit wrongly, has been the core requirement of numerous positions, such as to
be a judicial officer, to be a police officer, to be a Member of Parliament, etc, it is having horrific consequences that
follows from what currently is so wrongly applied.
Still, the rule of law, so constitutional law, must be applied in a proper manner, and not some Banana Republic kind
of system.
The Commonwealth Electoral Act 1918 also relies upon the unconstitutional declaration/ definition of Australian
citizenship as to provide for franchise where in fact franchise in the Commonwealth of Australia is obtained
only by having obtained State franchise through State citizenship.
What is missing is the States legislation to provide for State citizenship and by this for franchise!
Moller v The Board of Examiners [1999] VSC 55 (10 March 1999)
16. The concept of allegiance was considered by Ormiston, J. (as he then was) in Nicholls v. Board of
Examiners for Barristers and Solicitors [1986] V.R. 719. At p.728 his Honour said:
"Allegiance is a concept which is at the same time both obvious and subtle. Its precise nature has
varied over the centuries in ways which it is unnecessary to discuss here. For those reasons it is
undesirable to say more about the duty of allegiance than is necessary for the decision in this case. It
should be observed, however, that it is not now an obligation peculiar to monarchical systems of
government, whatever may have been its basis in Stuart times: cf. the Case of the Postnati:: Calvin's
Case (1608) 7 Co. Rep. 1a; 2 State Trials 559; 73 E.R. 761 and Re the Stepney Election Petition (1886) 17
Q.B.D. 54. Secondly, the present case does not concern the oath of allegiance to be given by a subject,
national or citizen. Even when an alien had virtually no rights, the correlative right of protection by the
sovereign was sufficient to justify a duty of allegiance on the part of aliens, at least aliens from friendly
countries, who lived within the realm. Since the disabilities of aliens have been largely abolished,
except as to the right of entry into the country, their duty of allegiance, when they live within this
country, cannot be disputed. On the other hand, I have found no authority, at least since the Middle
Ages, which suggests that the taking of an oath of allegiance creates any new or different obligation on
a resident foreign national. In making this latter observation, I am in no way referring to those oaths
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which are taken as part of a naturalization ceremony or which otherwise contain a renouncing of all
other allegiance, as appears in the oaths in Schedules 2 and 3 to the
HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/aca1948254/" Australian Citizenship Act 1948. I
add that what I have said as to the status of aliens appears applicable to all those who do not owe a
general duty of allegiance and I say nothing as to the effects of the repeal of the HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/num_act/aa194775/" Aliens Act 1947 and the prospective
repeal
of
the
definition
of
'alien'
in
the
HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/aca1948254/" Australian Citizenship Act 1948
(Act No. 129 of 1984, HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/c167/s4.html"
s.4 (2)(a)). Consequently there would appear to be significant differences between the local duty of
allegiance owed by aliens or non-citizens, and that owed by citizens or those who otherwise owe a
general duty of allegiance. When Parliament amended s.5(2) of the Legal Profession Practice Act 1958,
it chose to retain the obligation to take an oath of allegiance for those who wished to become
admitted to practise, but gave a right to those applicants to seek exemption from that obligation. As
was pointed out by the Chief Justice in Re Miller [1979] V.R. 381, at p.383, this appears to be a
recognition by Parliament of the importance attaching to that obligation. It is therefore neither
necessary nor desirable that any opinion should be expressed as to the right of persons other than
aliens or non-citizens to seek exemption under the amended sub-section. The present applicant is a
citizen of a foreign country and the considerations applicable to him are not necessarily considerations
applicable to citizens of this country, nor to persons who may hold dual citizenship."
Dual citizenship is not a dual nationality this as the Framers of the Constitution made clear;

Mr. SYMON.Dual citizenship exists, but it is not dual citizenship of persons, it is dual citizenship in each person. There
may be two men-Jones and Smith-in one state, both of whom are citizens of the state, but one only is a
citizen of the Commonwealth. That would not be the dual citizenship meant. What is meant is a dual
citizenship in Mr. Trenwith and myself. That is to say, I am a citizen of the state and I am also a citizen of
the Commonwealth; that is the dual citizenship.
SUPREME COURT OF VICTORIA - COURT OF APPEAL

Moller v Board of Examiners for Legal Practitioners [1999] VSCA 116 (30 July 1999)
24. Mr Bevan-John's next submissions related to the appellant's personal position. He put it that the appellant
has already publicly and deliberately declared his allegiance to Australia and that the purpose of his taking
the oath has been fulfilled by his pledge upon taking citizenship. He submitted that it was unfair to use
the
exemptive
power
under
HYPERLINK
"http://www.austlii.edu.au/au/legis/vic/consol_act/lpa1996120/" the Act to excuse those who do not
want to make any commitment of allegiance to Australia at all and to deny it in respect of one who has
already made the solemn pledge of that allegiance when he formally undertook Australian citizenship.
And
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32. The requirement which the Court imposes on those seeking admission to practise as barristers and
solicitors in this State to take an oath or make an affirmation of allegiance retains a significance which
goes beyond the mere academic and the pompous. Young, C.J. explained its importance in Re Miller
[1979] V.R. 381 at 383 in terms of the statutory recognition given by the Parliament to the oath of
allegiance and its administration to persons carrying out significant functions in this State.
33. To my mind his Honour's comments remain valid, notwithstanding the differences to be found between
the terms of HYPERLINK "http://www.austlii.edu.au/au/legis/vic/consol_act/lpa1996120/s6.html" s.6
of the HYPERLINK "http://www.austlii.edu.au/au/legis/vic/consol_act/lpa1996120/" Legal Practice Act
1996 and those which existed in s.5 of the Legal Profession Practice Act 1958. As Street, C.J. said in Re
Howard [1976] 1 N.S.W.L.R. 641 at 643, the significance of the oath being administered to those wishing
to practise as barristers and solicitors is its reminder to them that their role will be to serve law and justice
in the State, of which the Sovereign is the fountainhead.
34. It is, therefore, not surprising that the Court, in exercising its role as the ultimate controller of the
profession, imposes as one of the prerequisites for admission to practise a promise of allegiance and does
not lightly entertain applications to exempt persons from that obligation. Where, as here, exemption was
sought on the grounds of a strongly held commitment to a republican model of government and a fear of
compromising conscience and principles if required to take an oath of allegiance, it is equally, in my view,
not surprising that His Honour exercised his discretion against exemption.
Again;
He submitted that it was unfair to use the exemptive power under
HYPERLINK
"http://www.austlii.edu.au/au/legis/vic/consol_act/lpa1996120/" the Act to excuse those who do not
want to make any commitment of allegiance to Australia at all and to deny it in respect of one who has
already made the solemn pledge of that allegiance when he formally undertook Australian citizenship.
What was misconceived was that the oath of alliance is not as to citizenship but to naturalization in regard
of Subsection 51(xix) op the Constitution The oath of alliance to be admitted to the Bar to practice in the State of
Victoria is a different kind of alliance as it related to uphold the specific laws of the State of Victoria. The oath of
alliance in the State of NSW, for example, is to uphold the laws of that State when seeking admission to the Bar
there.
There can be no oath of alliance in regard of Australian citizenship as referred to by the Framers of the
Constitution as it is obtained AUTOMATICALLY when obtaining state citizenship.
As I perceived it at the time of what I considered to be naturalization I made an oath of alliance to become a
subject of the British Monarch and indeed the Dutch Government advised me that by taking up this naturalization I
no longer have the Dutch nationality. This being so then clearly the oath of alliance was in regard of the
naturalization powers provided for within Subsection 51(xix) to naturalize aliens to become British nationals, and
as such nothing to do with citizenship as to being to include franchise.
It is not relevant if the intentions of the Commonwealth of Australia is to include franchise as it simply is
unconstitutional and so ULTRA VIRES.
Many aliens who arrived as children in the Commonwealth of Australia with their parents, who subsequently
naturalized, found that years later they never were actually naturalized even so they were voting in elections.
Indeed, the Australian Electoral Commission is on record that people were found not to be naturalized and so not
entitled to vote even so they had filled out a card to be an Australian citizen and so entitled to vote.
What has occurred that often children understood, as their parents did, that they were naturalized at the time
their parents were but this was somehow omitted from the documentation to show so. My own 45 year old
stepdaughter discovered this only a few years ago! By this, while she considers herself to be an State citizen, and
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so an Australian citizen and also having been naturalized, the Commonwealth of Australia however never accept
any of this. The Pochi case is another clear example, where Mr. Pochi was deported where the High Court of
Australia in 1982 held he was not an Australian citizens despite that he had lived for most of this life and had
children here. The High Court of Australia confusing Australian citizenship with nationality.
To many Australian citizenship remains to be relating to having political rights and nothing to do with nationality,
and yet the Commonwealth of Australia keep advertising about Australian citizenship but in real terms may and
does in fact refer to some concocted Australian nationality even so no constitutional powers exist in that regard.
Therefore, the fact that I had filled in enrolments cards to vote in Federal elections is of no meaning where this was
done upon misconceptions created by the Commonwealth of Australia itself to refer to Australian citizenship but
which in fact was not at all referring to franchise of citizenship as such but to some purported Australian
nationality.
As a self educated constitutionalist, I view that the Racial Discrimination Act in effect (even so unconstitutional
in its conception) in fact robs every person of their citizenship and so their franchise as the Framers made clear
that any legislation within the race provisions disqualified every such person of their citizenship and so their
franchise. Hence, there can be no one who is eligible to vote or to be a Member of Parliament.
In any event, where I claim that constitutionally I am a British national if the naturalization was effected within the
constitutional provisions of subsection 51(xix) of the Constitution, and the High Court of Australia already made
clear in Sue v Hill that British nationals are foreigners (aliens) and so kicked out Heather Hill, then clearly I
cannot be deemed to be entitled to vote in any event. Australians are Australians by the fact that they are
residing within the Commonwealth of Australia, not because they are naturalised or born in the Commonwealth of
Australia.
Those born in the United Kingdom, but residing then in the colonies (now States) and participating in the
Constitution Conventions to create a federation nevertheless considered themselves to be Australians, besides
being British nationals.
Lord Denning M.R. in Reg. v. Governor of Brixton Prison; Ex parte Soblen (1963) 2 QB 243, at p 299, stated
4. The law of this country is very jealous of any infringement of personal
liberty (Cox v. Hakes (1890) 15 App Cas 506, at p 527) and a statute or
statutory instrument which purports to impair a right to personal liberty is
interpreted, if possible, so as to respect that right: R. v. Cannon Row Police
Station (Inspector) (1922) 91 LJKB 98, at p 106.
CHU KHENG LIM AND OTHERS v. THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
AND ANOTHER (1992) 176 CLR 1 F.C. 92/051
14. Aliens, not being members of the community that constitutes the body
politic of Australia, have no right to enter or remain in Australia unless
such right is expressly granted. Laws regulating their entry to and providing
for their departure from Australia (including deportation, if necessary) are
directly connected with their alien status. And laws specifying the
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conditions on and subject to which they may enter and remain in Australia are
also connected with their status as aliens to the extent that they are capable
of being seen as appropriate or adapted to regulating entry or facilitating
departure if and when departure is required((107)
This indicates that permission to be and remain in Australia is not depending on being a natural or born national,
but rather if one has become a member of the body politic of Australia. This body politic is in fact being an
Australian citizen.
The right of exercising any rights as an Australian citizen is enshrined in the Constitution
Mr. DEAKIN.In this Constitution, although much is written much remains unwritten,
It falls under personal liberties to exercise ones right to vote or not to vote.
LEGAL FICTION
Sue v Hill Authority;
GRADUAL INDEPENDENCE, that is what the High Court of Australia argued in the Sue v Hill case to oust her, despite
being a subject of the British Crown from the Senate. Quit frankly, at that time, I had myself argued that in 1919 by
the signing of the Treaty of Versailles the Commonwealth of Australia had become in effect an INDEPENDENT
nation and by this the Commonwealth of Australia Constitution Act 1900 (UK) was no more valid then any other
colonial legislation.
The Family Court of Australia even published this in its judgment!
But, while I had this great kind of argument as to why the Commonwealth of Australia was an INDEPENDENT
nation, I later discovered that constitutionally this could not be so. If, the Commonwealth of Australia somehow
became an INDEPENDENT nation then at some point of time legislation enacted in the commonwealth of Australia
and in any of the states would be defective as they would no longer be what the respective Constitutions required.
The commonwealth of Australia exist as a part POLITICAL UNION between the States, and it would be sheer
impossible for the Commonwealth of Australia to somehow then dictate the States if it remained to be colonial
entities or become independent. No such constitutional powers were ever provided for in the Commonwealth of
Australia Constitution Act 1900 (UK) and the Framers of the Constitution clearly opposed such possibility without
a Section 128 referendum! Indeed, they made clear that the Commonwealth of Australia could not , so to say,
throw off the Imperial connection under this Constitution.
The signing of the Treaty of Versailles could not have somehow invoked the Commonwealth of Australia to
become INDEPENDENT and neither can there be something like a gradual becoming of INDEPENDENT as to even
contemplate this on constitutional grounds would mean that having a Constitution is of no avail as no one will
know when things are purportedly changed over time as it be the judges who may declare what they view by
hindsight.
The POLITICAL UNION between the Colonies (now States) to form a political alliance, albeit partly, was a contract
that was binding among them. However, can we accept that somehow a contracts between them on partial
political issues somehow then can change everything?
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114
Would this mean that if tenants of a building are making an alliance then somehow they can become the owners of
the building merely because they claim that over time they became the owners by what they did?
As the Framers of the constitution made clear, external affairs gave the Commonwealth of Australia powers to
make treaties but only for so far it already was within its constitutional powers. It could not use it to acquire
somehow powers it didnt possess in the first place. As such, while the Commonwealth of Australia, for example,
may make a treaty with any other foreign nation that their citizens drivers licences will be accepted as valid
without needing a international driving licence, the truth of the matter is that there is no constitutional powers for
the Commonwealth of Australia to do so in the first place, as only the States have the legislative powers in that
regard.
If it were to be allowed for the Commonwealth of Australia to make any kind of treaty in regard of matters the
Commonwealth of Australia Constitution Act 1900 (UK) specifically withheld any legislative powers for, then the
whole notion of having a Constitution that can only be amended by way of Section 128 referendum no longer is
applicable as the Commonwealth of Australia can simply circumvent any constitutional limitation by making
treaties in regard of matters it didnt have constitutional powers for.
The Constitution is constant and can only be amended by Section 128 referendum. CoAG (Council of Australian
Governments) is an unconstitutional entity and cannot therefore somehow circumvent Section 128 provisions
either.
When I contested the legal validity of the application of the Cross Vesting Act, in 1994, I was, so to say, thrown out
by the Courts, yet in 1999 the High Court of Australia in the Wakim case then formally declared the purported
Cross vesting act to be unconstitutional.
In my 28 October 2002 to Mr Justice Michael Kirby I contested the validity of the Australian Act, and on 17 June
2003 His Honour in the MIMA case then made clear the Australian Act had no legal enforcement against the
Constitution.
It doesnt matter if the States therefore somehow agreed to the enacting of the Australian Act as it was beyond
the powers of Subsection 51(xxxvii) to allow for this in that this subsection only allows for matters to be referred
that is in dispute between two or more States but not all States. The Australian Act could not be held to have
been a matter of dispute between two or more States such as the Murray River can be!
There never was any constitutional powers given to the High Court of Australia to declare the Commonwealth of
Australia to be some alleged INDEPENDENT nation as its constitutional powers are bounded by the limits of the
Constitution.
Are we next going to have that essentially we have become part of the Republic of Indonesia because we now are
enacting legislation dealing with refugees to please the Indonesian Government?
As Author of various books about certain constitutional issues under the INSPECTOR-RIKATI label I have
extensively canvassed those constitutional issues, and rely upon my past published books also in support of this
argument that Australians are Australians because they are living in the Continent of Australia and that they are
British nationals and this is EMBEDDED in the Constitution to remain so. No one can point out that there is a
country named Australia where it makes laws regarding, say, driving licences, council rates, etc for the whole of the
nation. The Commonwealth of Australia doesnt even have legislative powers over local governments in the States.
It is simply a LEGAL FICTION that the Commonwealth of Australia is a INDEPENDENT nation, and so also that
somehow the Commonwealth of Australia has a Queen of Australia.
Would it not encompass that judicial officers who made an oath of alliance to the British Monarch and since
remained judges of the Courts but never did make a new alliance to the pretended Queen of Australia then are
disqualified from sitting as judicial officers at the bench of the Queens Courts?
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115
Surely, no one could accept that lawyers who swore an oath of alliance to the British Monarch somehow could
continue to be members of the Bar and be judicial officers when we somehow now hold that the British Monarch
and its subjects are all foreigners and ousted from not only voting but also from being Members of Parliament,
as Heather Hill was?
When I applied to naturalize it was in the perception that the I would become a British national with the British
Crown as head of the Empire. It is not, in my view, for the High Court of Australia then to somehow imply later with
the Sue v Hill case that somehow I never gained any alliance to the British Crown, neither became a subject of the
British crown but somehow became a subject to a non existing Queen of Australia of a fictional country.
In my 30 September 2003 published book titled;
ISBN 0-9580569-6-X
I canvassed the issue then about the case of Pauline Hanson and David Ettridge as to what I considered to be their
wrongful conviction. I pointed out that it was immaterial what was stated on the flip side of the membership card
as what was relevant was that the membership Card showed that the person was a Member of Pauline Hanson
One nation and as such were full members for purpose of legislation. On 8 October 2003 the Queensland AttorneyGeneral and Minister of Justice then wrote to me that in fact legal issues I had raised had not been canvassed by
any of the parties in any of the proceedings. Yet, subsequently the Court of Appeal about word for word used the
very legal argument I had used in my book as to overturn the convictions.
What was clear is that those who joined Pauline Hanson One Nation for all purposes were Members regardless
of what may have been stated otherwise to try to interfere with this on the flip side of the membership card.
Likewise, I naturalized to become an British national referred to as Australian because of being resident in the
Commonwealth of Australia, and do not accept that somehow years later the High Court of Australia, and notably
beyond its constitutional powers (as it did with the MABO case, as the colonies joining Federation did not accept
there was a native title issue in Australian colonies existing) can then interfere with my constitutional rights being a
British national. It is not relevant for this if the British Parliament did or did not legislate as to Australians being
foreigners as it would be ULTRA VIRES, as it has no legislative powers to deny Australians their British nationality
that is embedded in the Commonwealth of Australia Constitution Act 1900 (UK).
Mr. DEAKIN.-
In this Constitution, although much is written much remains unwritten,

Because no judge can be an adjudicator in his own cause, it must be clear that in effect not a single judge could
purport to have a position to decide this matter if his/her own position depends upon the outcome of this matter
to be decided.
It would be judicial bias for any judicial officer to decide a matter in which his very own survival of being a judicial
officer depends upon the outcome of the matter.
The first principles of British law incompetence, propter affectum to sit upon the trial must be considered.
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In my view a Jury of men in the language of omni exceptions majores could without difficulty consider the matters
and if it is tenable for a High Court of Australia to somehow create on its own some kind of a LEGAL FICTION that
does not exist but affects by this the very constitutional rights enshrined in the Constitution!
Now, still assuming them to be a Jury, and of course invested with all the attributes of Jurors at the
Common Law, this challenge propter affectum certainly ought to hold good for even were the statute
construed as bearing out a different signification, still an established right was not to be overturned by any
supposed negative clause, but by a direct and express affirmation. It was an immutable law of justice of
Great Britain, in fact of every civilised country on the face of the globe, and well laid down had that doctrine
been from time immemorial, so far had the doctrine been carried too, that Blackstone, book i p. 91.
Christian's edition, conceives it impossible so monstrous and absurd an injustice should ever exist any
where, as that any man should be constituted a judge in his own cause.
And
Mr. Wentworth gave a very lucid explanation of what in law sedition meant, and how it could most properly
be applied, considering it a Scotticism. Mr. Chief Justice Forbes rather thought the word had its origin from
the Latin tongue, and his Honor, with much classic taste, proceeding to elucidate his idea used an apt
quotation from the Mantuan Bard -- from the neid of Virgil 1 Book, lines 152, 3, 4, as follows:-"Ac veluti magno in populo, cum soepe coorta est SEDITIO, soevitque animis ignobile vulgus,
Iamque faces, et saxa volant -- furor arma ministrat."
After a most elaborate, eloquent, and argumentative appeal as to the justice and the facts applicable to his
client's case Mr. Wentworth again sat down.
Forbes C.J., Stephen and Dowling JJ, 20 June 1829
Source: Sydney Gazette, 23 June 1829
As already set out above that Australians (British nationals) are governed by Constitutional law and British law! It is
impossible for the High Court of Australia to somehow throw of the Imperial powers while still maintaining that the
Imperial legislation such as the Commonwealth of Australia Constitution Act 1900 (UK) remains in force albeit
upon conditions what they themselves consider is relevant. Some kind of, so to say, cherry picking tactic.
END QUOTE
So much more to state but my already published books in the INSPECTOR-RIKATI series
on certain constitutional and other legal issues are available at the National Library of Australia
in Canberra.
This correspondence is not intended and neither must be perceived to state all issues/details.
Awaiting your response,
G. H. Schorel-Hlavka O.W.B. (Gerrit)

(
Our name is our motto!)
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Constitutionalist: TO THE COURT Successfully Appealed in Both Cases Against Convictions of FAILING TO VOTE On

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As a CONSTITUTIONALIST my concern is the true meaning and application of the constitution.

Sir JOHN DOWNER.-

QUOTE 7-12-2016 EMAIL to Senator Rodney Culleton

Gerrit Schorel-Hlavka O.W.B.

Gerrit Schorel-Hlavka O.W.B.

prior to 1-1-2007) ISBN 978-0-9580569-6-0

-------- Original Message -------Subject:

Gerrit to Rodney Culleton Further details

On 30 September 2003 I published my book INSPECTOR-RIKATI on Citizenship,

-------- Original Message -------Subject:

Gerrit to Rodney Culleton

END QUOTE 7-12-2016 EMAIL to Senator Rodney Culleton

Miriam GetUp! <info@getup.org.au>

If such an office of profit in

Today at 18:37 (6-12-2016)

Tony Rigg speech in Canberra_banking_ v.4 12.11.16.doc

----- Original Message ----From: Mark B

CULLETON IN FIGHT AGAINST TERROR REIGN

END QUOTE 6-12-2016 EMAIL

QUOTE 20 November 2016 purported submission of Senator Rodney Culleton

High Court & Government put on notice

Senator Culleton has been sent to the

SENATOR CULLETON'S SUBMISSION TO THE HIGH COURT

In Breach of S 90 Constitution which gives exclusive jurisdiction over Excise to

END QUOTE 20 November 2016 purported submission of Senator Rodney Culleton

Mr. HIGGINS: If it were only an amendment?

"The germ of destruction of our nation is in the power of the judiciary, an

The Franchise Right to Vote Timetable

Al-Kateb v Godwin [2004] HCA 37, 6-8-2004

66. Most of the rules HYPERLINK "http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high%5fct/2004/"

Hansard 12-3-1891 Constitution Convention Debates

Certificate of Australian Citizenship

GERRIT HENDRIK SCHOREL

I the Minister for Immigration and Ethnic Affairs,

Issued by the authority

By marriage, on 28 March 2001, I became Gerrit Hendrik Schorel-Hlavka

Talbot v. Janson, 3 U.S. 133 (1795)

Mr. ISAACS.-Commonwealth citizenship.

As was made clear by Mr quick;

the parliament cannot give the word a meaning

DANG, EX PARTE - RE MIMA M118/2001 (18 APRIL 2002)

KIRBY J: Your clients were not British subjects.

SHAW V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Hansard 1-4-1891 Constitution Convention Debates

HANSARD 26-3-1891 CONSTITUTION CONVENTION DEBATES

Hansard 1-4-1891 Constitution Convention Debates

Hansard 2-3-1898 Constitution Convention Debates

Hansard 2-3-1898 Constitution Convention Debates

Hansard 3-3-1898 Constitution Convention Debates

Hansard 8-4-1891 Constitution Convention Debates

Hansard 16-3-1898 Constitution Convention Debates

Hansard 9-9-1897 Constitution Convention Debates

We cannot give a sanction to a law

Hansard 17-4-1898 Constitution Convention Debates

There can be no doubt as to the position taken up by

In the Shaw case the high Court of Australia stated;

Duncan v Queensland (1916) 22 CLR 556, 582 (per Griffith C.J.)

The Shaw case;

GERRIT HENDRIK SCHOREL

and having undertaken to fulfil the responsibilities of a citizen.

the parliament cannot give the word a meaning

Hansard 22-04-1897 Constitution Convention Debates