110605-Submission National Funding Agreements - ETC

Committee Secretary 5-6-2011
Joint Committee of Public Accounts and Audit

PO Box 6100, Parliament House Canberra ACT 2600 Australia
5 Email jcpaa@aph.gov.au
.
Ref: National Funding Agreements – etc.
.
AND TO WHOM IT MAY CONCERN
10 .
This submission is extensive (At times repeating the same quotations due to needing to be used at
those locations) due to the nature is issues canvassed, unconstitutional State land taxes, including
GST, Religious tax exemptions, and for the first time a proposed system of obligations to be
entitled to a NON PROFIT (NOT-FOR-PROFIT) registration, etc. This as to clamp down on
15 moneys collected being used for ulterior purposes nothing to do with “PUBLIC PURPOSES”
Also the issue of taxation used to purchase WATER is addressed below. It should be understood
that to explain why certain taxation issues ought to be clamped down on and other
comprehensive supportive material has been provided to underline the need for tax reforms.
.
20 As referred to below the Commonwealth introduced the Land Tax office, the forerunner of the
ATO on 11 November 1910 and from then on land taxes had to be “uniform” and were an
exclusive federal legislative power. In 1952 the Commonwealth abolished State land taxes but
couldn’t have the States then reverting to State land taxes. This submission contains also a recent
correspondence to the ATO in that regard.
25 .
As a CONSTITUTIONALIST I have grave concerns as to how the funding arrangements have
developed, some as to “conventions” where in fact it must at all times remain to be within the
constitutional framework. Having for example Customs terrorising/extorting monies from people
or withhold their goods, as they fin vein tried to do against me, also should be a wake up call that
30 there is a lot drastically wrong.
.
This submission is but a mere part of a lot that is wrong but at least let try to start somewhere.
What is needed is an OFFICE-OF-THE-GUARDIAN (Don’t forget the hyphens!)a
constitutional council that advises the Government, the People, the Courts and the Parliament as
35 to the constitutional meanings and powers and so limitations because currently we have far too
many laws that are unconstitutional and so are really no laws at all, but the poor fellow who has
to try to pursue justice against the might of a taxpayer funded department.
We must stop the rot while we can because if we fail then we may face rebellion of a kind never
experienced in the Commonwealth of Australia as people are just sick and tired on the way
40 politicians elected to represent them are disregarding the RULE OF LAW.
Therefore, any national funding arrangements must consider these and other matters also and the
same that since the Commonwealth ties pensions and other welfare payments to the CPI then
constitutionally the States no longer can increase charges for public housing rent, state charges
45 such as driver licences, etc, and neither could the municipal/shire councils then increase their
rates above the CPI (Consumer Price Index)for pensioners and welfare recipients. Meaning a
5-6-2011 Submission Re Charities Page 1
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total change of funding must eventuate, this as the Framers of the Constitution stated that all and
any unconstitutional taxation must be refunded to the person who paid it. Consider a perhaps
(estimates) $35 billion a year on state taxes to be refunded then this will have horrendous
consequences. Hence this extensive submission!
5 .
QUOTE Michael D'Ascenzo, Commissioner of Taxation,
WITHOUT PREJUDICE
.
Michael D'Ascenzo, Commissioner of Taxation, 3-6-2011
10 General Post Office Box 9977 Sydney,NSW 2001
C/o Deborah Green deborah.green@ato.gov.au
.
Cc: Anton Pincevic
c/- 2342 Northern Road, Luddenham NSW 2745 “Robert Pincevic” <roblp@bigpond.com>
15
Robert Pincevic
c/- 2342 Northern Road, Luddenham NSW 2745 “Robert Pincevic” <roblp@bigpond.com>
.
Deborah Green ATO C/o deborah.green@ato.gov.au
20 Address is PO Box 9977 Newcastle NSW 2300 Ph number 0249 234658
Paul Duffus, Deputy Commissioner of Taxation C/o deborah.green@ato.gov.au
Peter Spring ATO, C/o deborah.green@ato.gov.au phone number; 02 9374 8990 fax; 02 9374 8753
25
Raelene Vivian, Deputy Commissioner of Taxation C/o deborah.green@ato.gov.au
in care of: General Post Office Box 9977 Sydney, NSW 2001.
.
Ref: Operation Wickenby, taxation and other matters -
30 Re Taxation powers-etc
. AND TO WHOM IT MAY CONCERN
Sir,
Further to my previous correspondence I direct myself to you in regard of the ATO’s conduct
35 in Operation Wickenby, etc, and in particular the legal processes it followed and still follows as
I contemplate to publish a book titled:
.
INSPECTOR-RIKATI® on the ATO-Operation Wickenby & TAXATION
40 Subtitled; Undermining DEMOCRACY-the ATO’s abuse of power & legal processes
.
Again I state previously; In this matter I do not represent any specific person.
.
I am not a lawyer but a constitutionalist, professional advocate, Attorney, etc, and as Author of
45 books in the INSPECTOR-RIKATI® series on certain constitutional and other legal matters
have extensively written about taxation matters.
.
Since my 17 October 2010 correspondence I have indeed been very busy to investigate certain
taxation matters of which I will refer to also to some below.
50 I am however also concern that the way the ATO applies penalties upon persons who allegedly
didn’t make a proper tax return declaration is of concern and if since the nearly 8 month time
difference since the 17 October 2010 correspondence the ATO has retraining its staff to ensure
that they follow proper procedures and do not inflict any penalties merely because they many not
understand that a taxpayer may be within his right in not providing certain details and that
55 certain conduct of a taxpayer may be lawful even so not appreciated by the ATO officers as such.

5 You may notice that the correspondence has the statement:
QUOTE
Land taxes were imposed by the States prior to federation. They were introduced at the federal level in 1910.
In 1952, the Commonwealth Government abolished land tax. This did not have the effect of preventing the
States from imposing land tax, but rather returned taxation powers back to them. Accordingly, the NSW
5 Government introduced the Land Tax Management Act in 1956.
END QUOTE
Obviously, contrary to what was claimed by Barry Collier MP the Commonwealth Government
has no constitutional powers to abolish any legislation as it being the Executive it can refuse to
enforce legislative provisions but cannot abolish an act of Parliament. As such it is the
10 Commonwealth Parliament that can only abolish legislation.
.
Hansard 22-9-1897 Constitution Convention Debates
QUOTE
The Hon. R.E. O'CONNOR (New South Wales)[3.18]: The moment the commonwealth exercises the
15 power, the states must retire from that field of legislation.
END QUOTE
.
QUOTE Mr. REID:
20 We must make it clear that the moment the Federal Parliament legislates on one of those points
enumerated in clause 52, that instant the whole State law on the subject is dead. There cannot be two
laws, one Federal and one State, on the same subject. But that I merely mention as almost a verbal
criticism, because there is no doubt, whatever that the intention of the framers was not to propose any
complication of the kind.
25 END QUOTE
.
QUOTE
The Hon. R.E. O'CONNOR (New South Wales)[3.18]: We ought to be careful not to load the
30 commonwealth with any more duties than are absolutely necessary. Although it is quite true that this
power is permissive, you will always find that if once power is given to the commonwealth to legislate
on a particular question, there will be continual pressure brought to bear on the commonwealth to
exercise that power. The moment the commonwealth exercises the power, the states must retire from
that field of legislation.
35 END QUOTE
.
QUOTE
Mr. OCONNOR.-Directly it is exercised it becomes an exclusive power, and there is no doubt that it will
40 be exercised.
END QUOTE
Again: Directly it is exercised it becomes an exclusive power
Where it became “exclusive power” and the constitution doesn’t provide for a reversal of
45 legislative powers from the Commonwealth to the states then for sure I like to know why the
ATO charged with taxation is pursuing if not persecuting people like the Pincevic’s while
allowing untold billions of dollars to be collected by States/Territories?
It must be clear that the States have no legislative powers whatsoever to collect land taxes
because the legislative powers, since 1910, became federal exclusive powers and for the ATO
50 nevertheless to allow this kind of unconstitutional land tax collection to persist in my view is not
just scandalous but criminal. How can the ATO assess people like the Pincevic’s where the
GST component also is unconstitutional?
.
During the recent Victorian elections Customs (for the ATO) sought to extort from me GST of
55 goods that were imported. Well boy did they get a 40 page complaint from em that customs
immediately released my goods without any payment of a declaration or the declaration or any
GST. So, was it not for my extensive knowledge about constitutional matters I too could have
been suffering under their extortion demands and have paid the GST they unconstitutionally
sought to claim from me. It seems to me that if the ATO after more then 100 years so to say

cannot even have its act together to know how to administrate appropriately taxation then sack
the idiots in management and get some real people with some brains into the positions.
Are we just having morons in the ATO who are persecuting ordinary people while the real
booty is taken by unconstitutional and so unlawful conduct?
5 To me this smacks of gross incompetence by the ATO.
Now, consider this that if I were to unlawfully levy a tax against people then the ATO would be
quick smart with its brainless lawyers on my back that only the commonwealth can levy certain
taxes and the States the residue. No such thing as private taxes being levied, and yet the GST
basically is what it is because many who sell items to customers and charge GST do not have to
10 pass this on to the ATO because of the level below which they do not have to pay GST, just that
the customer already has paid the GST and so vendors are by this technically having their own
10% private taxation.
.
What may be noted is the wording “but rather returned taxation powers back to them” as
15 such this is a concession that in fact since 1910 land taxes were an exclusive Commonwealth
legislative power. The question then is how does one “returned” a legislative power to any
State, not just NSW, where the Constitution never provided for this? Clearly Barry Collier MP
didn’t clarify within what constitutional powers, if any, a reversal of legislative power could
eventuate and quite frankly the Framers of the Constitution made clear that once a legislative
20 power was a Commonwealth legislative power then this was the end of the States dealing with
the subject.
Hansard 27 -1-1898 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE
25 Mr. DEAKIN.-My point is that by the requests of different colonies at different times you may arrive at a
position in which all the colonies have adopted a particular law, and it is necessary for the working of that law
that certain fees, charges, or taxation should be imposed. That law now relates to the whole of the Union,
because every state has come under it. As I read clause 52, the Federal Parliament will have no power,
until the law has thus become absolutely federal, to impose taxation to provide the necessary revenue
30 for carrying out that law. Another difficulty of the sub-section is the question whether, even when a
state has referred a matter to the federal authority, and federal legislation takes place on it, it has any-
and if any, what-power of amending or repealing the law by which it referred the question? I should be
inclined to think it had no such power, but the question has been raised, and should be settled. I should
say that, having appealed to Caesar, it must be bound by the judgment of Caesar, and that it would not
35 be possible for it afterwards to revoke its reference.
END QUOTE
.
HANSARD 1-3-1898 Constitution Convention Debates
QUOTE Mr. GORDON.-
40 The court may say-"It is a good law, but as it technically infringes on
the Constitution we will have to wipe it out."
END QUOTE
.
45 QUOTE Mr. ISAACS (Victoria).-
In the next sub-section it is provided that all taxation shall be uniform throughout the Commonwealth.
An income tax or a property tax raised under any federal law must be uniform "throughout the
Commonwealth." That is, in every part of the Commonwealth.
END QUOTE
50 .
QUOTE
Mr. MCMILLAN: I think the reading of the sub-section is clear.
The reductions may be on a sliding scale, but they must always be uniform.
55 END QUOTE
.
QUOTE
Sir GEORGE TURNER: No. In imposing uniform duties of Customs it should not be necessary for the
Federal Parliament to make them commence at a certain amount at once. We have pretty heavy duties in
Victoria, and if the uniform tariff largely reduces them at once it may do serious injury to the colony. The
Federal Parliament will have power to fix the uniform tariff, and if any reductions made are on a
5 sliding scale great injury will be avoided.
END QUOTE
.
QUOTE Mr. BARTON.-
10 But it is a fair corollary to the provision for dealing with the revenue for the first five years after the
imposition of uniform duties of customs, and further reflection has led me to the conclusion that, on the
whole, it will be a useful and beneficial provision.
END QUOTE
.
15 Hansard 17-3-1898 Constitution Convention Debates
QUOTE Mr. BARTON.-
On the other hand, the power of the Commonwealth to impose duties of customs and of excise such as it may
determine, which insures that these duties of customs and excise would represent something like the average
opinion of the Commonwealth-that power, and the provision that bounties are to be uniform throughout
20 the Commonwealth, might, I am willing to concede, be found to work with some hardship upon the states
for some years, unless their own rights to give bounties were to some extent preserved.
END QUOTE

25 QUOTE Sir SAMUEL GRIFFITH:
2. Customs and excise and bounties, but so that duties of customs and excise and bounties shall be uniform
throughout the commonwealth, and that no tax or duty shall be imposed on any goods exported from one
state to another;
END QUOTE
30
QUOTE The CHAIRMAN.-
Taxation; but so that all taxation shall he uniform throughout the Commonwealth, and that no tax or duty
shall be imposed on any goods passing from one state to another.
35 END QUOTE
.
QUOTE
Mr. BARTON.-I am saying now that I do not think there is any necessity for clause 95 in its present form.
40 What I am saying however, is that it should be made certain that in the same way as you provide that the
Tariff or any taxation imposed shall be uniform throughout the Commonwealth, so it should be
provided with reference to trade and commerce that it shall be uniform and equal, so that the
Commonwealth shall not give preference to any state or part of a state. Inasmuch as we provide that all
taxation, whether it be customs or excise duties, or direct taxation, must be uniform, and inasmuch as
45 we follow the United States Constitution in that particular-in the very same way I argue that we should
protect the trade and commerce sub-section by not doing anything which will limit its effect. That is the real
logical position.
END QUOTE
.
50 Hansard 3-3-1897 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE
Mr. ISAACS (Victoria).-What I am going to say may be a little out of order, but I would like to draw the
Drafting Committee's attention to the fact that in clause 52, sub-section (2), there has been [start page 1856] a
55 considerable change. Two matters in that sub-section seem to me to deserve attention. First, it is provided
that all taxation shall be uniform throughout the Commonwealth. That means direct as well as indirect
taxation, and the object I apprehend is that there shall be no discrimination between the states; that an
income tax or land tax shall not be made higher in one state than in another. I should like the Drafting
Committee to consider whether saying the tax shall be uniform would not prevent a graduated tax of any
60 kind? A tax is said to be uniform that falls with the same weight on the same class of property, wherever it is
found. It affects all kinds of direct taxation. I am extremely afraid, that if we are not very careful, we shall get
into a difficulty. It might not touch the question of exemption; but any direct tax sought to be imposed
might be held to be unconstitutional, or, in other words, illegal, if it were not absolutely uniform.
END QUOTE
.
It should be clear that a “UNIFORM” law under the Commonwealth cannot somehow revert
back to a non-uniform law merely because of the States desiring to pursue their own kind of land
taxation. As such, on this basis also the State land taxes are floored (and so also any Territorial
5 land taxes).
.
QUOTE
Mr. ISAACS.-The court would not consider whether it was an oversight or not. They would take the
10 law and ask whether it complied with the Constitution. If it did not, they would say that it was invalid.
They would not go into the question of what was in the minds of the Members of Parliament when the law
was passed. That would be a political question which it would be impossible for the court to determine.
END QUOTE
As I previously indicated the Commonwealth could have allowed the States to collect under its
15 authority land taxes but it still would have to be uniform through the Commonwealth and as
such all States and Territories (quasi States) would be bound to have the same land taxes
application and not different rates. This then would clearly be a waste of exercise as why allow
different States/Territories to collect taxes when one federal office can do the same?
The issue then is of the Commonwealth somehow could enact legislation to retrospective provide
20 for legislation for the States/Territories to have collected land taxes on its behalf. Again, the first
hurdle is that retrospective legislation would be invalid where so to say it makes the conduct of
an honest man to be a criminal conduct. Further, where the States raised different levels of land
taxes then it cannot be uniform. One couldn’t accept that a person of one State having paid less
then in another State now suddenly was to pay more by some kind of retrospective legislation
25 and neither that some who paid more now were going to receive a refund of any land taxes paid
above that of other States. After all commercial entities are based upon overhead cost, including
land taxes, etc, and as such a business enterprise might be determined where the lowest taxation
is available. Changing the system after the contracts are already in operation would make a
mockery of the reliability of State provisions.
30 I have indicated for years that what is needed is an OFFICE-OF-THE-GUARDIAN which
would advise the government, the parliament, the people and the Courts as to constitutional
meanings and application as a constitutional council. This is what is missing in Australia and as
result we have sport stars and singers and whatever elected to the parliament and basically no one
understands let alone comprehend the meaning and application of the constitutions.
35 .
It is obviously of concern to me that it took a massive 6 month period (from 31 August 2010 till
2 March 2011) to present this kind of response that doesn’t appear to me to indicate to be any
well researched response. By the State of NSW. (when the previous government was in power.)
.
40 EITHER WE HAVE A CONSTITUTION OR WE DON’T!
.
Can the Commissioner of Taxation then be deemed culpable for allowing this unconstitutional
taxation to continue?
In my view he can because there is no difference for me to stand by watching a criminal to rob a
45 store and do nothing about it then the Commissioner of Taxation knowingly allowing the States
to rob taxpayers of their monies by the unconstitutional land taxes and for others to slug and so
rob taxpayers of the 10% GST component which has no constitutional validity.
As the Framers of the Constitution made clear that any tax that was deemed to be
unconstitutional has to be refunded to the taxpayers. As such the so called CocoPop tax had to be
50 refunded to the purchasers of the drinks as they were the once who paid the taxes. And, the so
called CocoPop tax is and remains unconstitutional because there was a failure of a 3-month
constitutionally required interval of a new session before it was reintroduced into the Parliament.
As like many other bills are failing on this.
While the ATO may hold “screw you” to the taxpayers it may eventually eventuate that this will
55 haunt the ATO because as the Framers of the Constitution made clear:
.
QUOTE Sir JOHN DOWNER.-
I think we might, on the attempt to found this great Commonwealth, just advance one step, not beyond
5 the substance of the legislation, but beyond the form of the legislation, of the different colonies, and say
that there shall be embedded in the Constitution the righteous principle that the Ministers of the
Crown and their officials shall be liable for any arbitrary act or wrong they may do, in the same way as
any private person would be.
END QUOTE
10 .
As such if I have my way then every ATO officer who acted ignorant towards the suffering of
taxpayers should be made legally accountable even if this means selling their personal property
to provide restitution for those they inflicted harm upon.
No excuse as to claim following orders (consider Neurengberg trials) as those who so to say
15 enjoy inflicting harm upon others such as the Pincivic’s should suffer the legal consequences.
You cannot have that ATO officers are so to say being standover men obtaining court orders ex
parte and then seek to use those orders to persecute people like the Pincevic’s. We all must join
together to stop this rot as if we don’t then soon or later it will be our turn.
I find it totally unacceptable for the ATO to obtain inappropriately ex party court orders and then
20 use this as some kind of weapon against the Pincevic’s to force them to release details, etc., they
never needed to release.
Those in the ATO, or for that anywhere else, who participate in this kind of rot deserves no pity
because they are undermining the provisions of the constitution and they betray the blood that
flowed from the australian soldiers who died to protect the rights and privileges of this
25 constitution for all Australians. Only cowards will participate or join into this kind of rot and
anyone with a bit of backbone will stand up and be counted and stop this rot. Hence we all must
ensure that our constitution is the principle governing documents that belongs to the people and
will be maintained by the people as not to do so is to betray our rights and subject ourselves to
dictatorship and tyranny
30 .
Do understand that as a CONSTITUTIONALIST I am more and more so to say lift the cover of
the evil deeds that is going on and it is merely a matter of time that people are so sick of it all that
finally they will retaliate and hold those involved in it all legally accountable. The RULE OF
LAW must always prevail and hence make sure that you do act lawfully and appropriate and do
35 not stand by to allow others to commit their crimes perpetrated upon Australians as if you do
then I view you are no better then the criminals who do the deed. Just don’t wait until others do it
for you! As you may notice I may not have written for some time to you but rest assure I didn’t
forget you, and neither do I think others will do so likewise! Remember: WE THE PEOPLE!
.
40 MAY JUSTICE ALWAYS PREVAIL®

.
Our name is our motto!
45 Awaiting your response, G. H. Schorel-Hlavka

END QUOTE Michael D'Ascenzo, Commissioner of Taxation,
QUOTE Chapter 0008 SUBMISSION - taxation issues non-profit-etc

.
50 Chapter 0008 SUBMISSION - taxation issues non-profit-etc
.

* Gerrit, as a CONSTITUTIONALIST would you say that the States can tax the
Commonwealth and visa versa? Also what about religious finding and tax concessions for NON-
PROFIT (NOT-FOR-PROFIT) organizations?
.
5 **#** INSPECTOR-RIKATI®, let’s first attend to the issue of taxation in general, The
Commonwealth of Australia Constitution Act 1900 (UK)…
.
* You mean the Commonwealth of Australia Constitution Act?
.
10 **#** No, the title is The Commonwealth of Australia Constitution Act 1900 (UK)
http://www.austlii.edu.au/cgi-
bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=%22thi+act+and+all+law+made+by+the+p
arliament%22#fn50
15
QUOTE
Constitutional interpretation
The starting point for a principled interpretation of the Constitution is the
search for the intention of its makers[51].
20 END QUOTE
.
KING v. JONES ; McEWEN v. HACKERT ; JONES v. JONES. (1972) 128 CLR 221
Barwick C.J.(1), McTiernan(2), Menzies(3), Walsh(4), Gibbs(5) and Stephen(6)JJ.
25
QUOTE Barwick C.J.(1)
10. There are some basic propositions of constitutional construction which
are beyond controversy. The words of the Constitution are to be read in that
natural sense they bore in the circumstances of their enactment by the
30 Imperial Parliament in 1900. That meaning remains, beyond the reach of any
Australian Parliament, subject only to alteration by the means provided by s.
128 of the Constitution. The connotation of words employed in the Constitution
does not change though changing events and attitudes may in some circumstances
extend the denotation or reach of those words. These propositions are fully
35 documented in the reported decisions of this Court which has the task of
finally and authoritatively deciding both the connotation and the denotation
of the language of the Constitution. (at p229)
END QUOTE
.
40 HANSARD 7-2-1898 Constitution Convention Debates
QUOTE
Sir EDWARD BRADDON (Tasmania).-I have an amendment to move on behalf of
Tasmania, and also an amendment of my own. The clause we have before us says that a
state shall not make any law prohibiting the free exercise of any religion. It is quite possible
45 that this might make lawfull practices which would otherwise be strictly prohibited. Take,
for instance, the Hindoos. One of their religious rites is the "suttee," and another is the
"churruck,"-one meaning simply murder, and the other barbarous cruelty, to the devotees
who offer themselves for the sacrifice.
Dr. COCKBURN.-The Thugs are a religious sect.

Sir EDWARD BRADDON.-Yes. If this is to be the law, these people will be able to
practise the rites of their religion, and the amendment I have to suggest is the insertion of
some such words as these:-
But shall prevent the performance of any such religious rites, as are of a cruel or
5 demoralizing character or contrary to the law of the Commonwealth.
The leader of the Convention is, I believe, in a hurry to conclude the evening's
proceedings. I will leave the amendment with him, in the hope that he will be able to make
something of it.
END QUOTE
10 .
This document is to be understood to attend to TAXATION matters, and albeit it also refers to
“religious “issues this must be appropriately understood to relate to TAXATION matters and not
as some kind of witch hunt upon any particular religion. The primary issue is the use/misuse of
TAXATION.
15 .
http://au.news.yahoo.com/a/-/latest/6920207/scientology-inquiry-blocked-in-senate/
Scientology inquiry blocked in Senate
QUOTE
Labor frontbencher Joe Ludwig said a Senate inquiry was
20 unwarranted, as there were already two other inquiries looking into
taxation matters, including the tax-free status of religious groups.
END QUOTE
.
In my view a specific inquiry by the Commonwealth of Australia into religion is
25 unconstitutional however an inquiry into TAXATION matters dealing with the issue of TAX
EXEMPTION referring to NON PROFIT (NOT FOR PROFIT) registered entities legitimately
can deal with code of conduct, etc, regarding NON PROFIT (NOT FOR PROFIT) registered
entities irrespective it this include religious entities.
.
30 It is important to understand that While the first Amendment of the U.S.A. constitution has
similarity with s.116 of The Commonwealth Constitution Act 1900 (UK) there is a
considerable difference in not only that the U.S.A is a CONFERATION and the
Commonwealth of Australia is a FEDERATION, but also that the religious prohibition
includes this being against the States in the U.S.A. whereas in the commonwealth of
35 Australia s.116 only applies to the commonwealth of Australia and the Framers of the
Constitution specifically stipulated not to apply to the States.
.
For this certain ruling by the Supreme Court of America may not as such apply to the
Commonwealth of Australia and/or the States as a reliable Authority. The same for example
40 applies to the issue of “citizenship” the issue of “eminent domain” relating to “FEE SIMPLE”,
etc.
.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=397&invol=664
Frederick WALZ, Appellant, v. TAX COMMISSION OF the CITY OF NEW YORK. No. 135.
45 Argued Nov. 19, 1969. Decided May 4, 1970.
QUOTE
The exemptions have continued uninterrupted to the present day. They are in force in all 50
States. No judicial decision, state or federal, has ever held that they violate the
Establishment Clause. In 1886, for example, this Court in Gibbons v. District of Columbia,

116 U.S. 404 , rejected on statutory grounds a church's claim for the exemption of certain
of its land under congressional statutes exempting Washington churches and appurtenant
ground from real property taxes. But the Court [397 U.S. 664 , 686] gave not the slightest
hint that it ruled against the church because, under the First Amendment, any exemption
5 would have been unconstitutional. To the contrary, the Court's opinion implied that nothing
in the Amendment precludes exemption of church property: 'We are not disposed to deny
that grounds left open around a church, not merely to admit light and air, but also to add to
its beauty and attractiveness, may, if not used or intended to be used for any other purpose,
be exempt from taxation under these statutes.' Id., at 407. 6
10 Mr. Justice Holmes said that '(i)f a thing has been practised for two hundred years by
common consent, it will need a strong case for the Fourteenth Amendment to affect it ....'
Jackman v. Rosenbaum Co., 260 U.S. 22, 31 , 10 (1922). For almost 200 years the view
expressed in the actions of legislatures and courts has been that tax exemptions for
churches do not threaten 'those consequences which the Framers deeply feared' or 'tend to
15 promote that type of interdependence between religion and state which the First
Amendment was designed to prevent,' Schempp, supra, 374 U.S., at 236 (Brennan, J.,
concurring). An examination both of the governmental purposes for granting the
exemptions and of the type of [397 U.S. 664 , 687] church-state relationship that has
resulted from their existence makes clear that no 'strong case' exists for holding
20 unconstitutional this historic practice. 7
END QUOTE
.
In the Commonwealth of Australia however not only was s.116 of the constitution inserted in
1898 but more over the following quotation makes it abundantly clear that the Framers of the
25 Constitution for the Commonwealth of Australia didn’t follow this kind of reasoning;
.
QUOTE
Mr. REID.-I suppose that money could not be paid to any church under this
30 Constitution?
Mr. BARTON.-No; you have only two powers of spending money, and a church
could not receive the funds of the Commonwealth under either of them.
[start page 1773]

END QUOTE
35 .
QUOTE
Peter Costello - Treasurer
Tax deductibility of gifts to St Paul's Cathedral restoration fund
23 April 2002 – Press Release
40
Today I am announcing the Government's decision to amend the income tax
law to allow tax deductions for gifts to the value of $2 or more to the St
Paul's Cathedral Restoration Fund.
45 As a result, gifts made to the Fund from today to 22 April 2004, will be deductible
for income tax purposes.
END QUOTE
.

It must be clear that to announce an amendment to the income tax specifically for a religious
project, as it is a building used for religious purposes, then this is providing “funding” otherwise
not permissible in law, being it to claim tax deduction or otherwise.
.
5 The mere fact that a person claimed to be the best treasurer of the century, for whatever this
might stand for, then goes through the extra ordinary step to announce something for which there
is no constitutional power to do so itself may underline that there is a grave deficiency in those
involved in taxation to understand and comprehend what is constitutionally permissible. Hence,
this document address matters regardless of what any politician/lawyer may claim to know
10 because as like with “citizenship-“ more then likely politicians/lawyers “ASSUME” there is a
legislative power even so constitutionally there might be none.
.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=450&invol=707
THOMAS v. REVIEW BOARD OF THE INDIANA EMPLOYMENT SECURITY DIVISION
15 ET AL. CERTIORARI TO THE SUPREME COURT OF INDIANA. No. 79-952.
Argued October 7, 1980. Decided April 6, 1981.
QUOTE
The "aid" rendered to religion in these latter cases may not be significantly different, in
kind or degree, than the "aid" afforded Mrs. Sherbert or Thomas. For example, if the State
20 in Sherbert could not deny compensation to one refusing work for religious reasons, it
might be argued that a State may not deny reimbursement to students who choose for
religious reasons to attend parochial schools. The argument would be that although a
State need not allocate any funds to education, once it has done so, it may not require
any person to sacrifice his religious beliefs in order to obtain an equal education. See
25 Lemon, supra, at 665 (opinion of WHITE, J.); Nyquist, supra, at 798-805 (opinion of
BURGER, C. J.). There can be little doubt that to the extent secular education provides
answers to important moral questions without reference to religion or teaches that there are
no answers, a person in one sense sacrifices his religious belief by attending secular
schools. And even if such "aid" were not constitutionally compelled by the Free Exercise
30 Clause, Justice Harlan may well have been right in Sherbert when he found sufficient
flexibility in the Establishment Clause to permit the States to voluntarily choose to grant
such benefits to individuals. [450 U.S. 707, 728]
END QUOTE
.
35 While the Commonwealth of Australia time and time again seems to allocate different funding to
private versus public schools and this always is a point of contention the truth is that the
Commonwealth of Australia cannot differentiate between private and public schools as the
amount per student spent on a student must be the same where it is for private or public
education. It makes not one of iota different if parents have their children attending a private
40 school may be so to say stinking rich or not, as many may just do without ordinary pleasures of
life to sacrifice it all for their child, as the issue is that the Commonwealth with student financial
aid must ensure that there is no financial difference between State public and private education
facilities. The States themselves however are not bound by s.116 of the Constitution and entitled
to fund State public schools without having to fund any private (including religious) education
45 facilities.
.
Hansard 10-3-1891 Constitution Convention Debates (Official Record of the Debates of the
National Australasian Convention)
QUOTE Mr. DIBBS:
50 where we are giving the people of the country practically a free education-and it should be
common to all Australia-we should instil into the minds of our children the necessity for
training, and, as a quid pro quo for that free education,
END QUOTE
.
A LAW DICTIONARY ADAPTED TO THE CONSTITUTION AND LAWS OF THE
UNITED STATES OF AMERICA AND OF THE SEVERAL STATES OF THE AMERICAN
5 UNION
With References to the Civil and Other Systems of Foreign Law by John Bouvier
Ignoratis terminis ignoratur et ars. - Co. Litt. 2 a. Je sais que chaque science et chaque art a ses
termes propres, inconnu au commun des hommes. - Fleury
SIXTH EDITION, REVISED, IMPROVED, AND GREATLY ENLARGED. VOL. I.
10 PHILADELPHIA CHILDS & PETERSON, 124 ARCH STREET 1856
QUOTE
QUID PRO QUO. This phrase signifies verbatim, what for what. It is applied
to the consideration of a contract. See Co. Litt. 47, b; 7 Mann. & Gr. 998.
END QUOTE
15 .
It is also of concern to me that basically the very ministers in government who may have all
benefited from free university education now have done an about face and deny the very
opportunity to others to have likewise a free education, even so as is with the State of Victoria
FREE EDUCATION is a constitutional provided for.
20 .
WELSH v. UNITED STATES, 398 U.S. 333 (1970), 398 U.S. 333, WELSH v. UNITED
STATES, CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT, No. 76., Argued January 20, 1970, Decided June 15, 1970
QUOTE
25 1. The language of 6 (j) cannot be construed (as it was in United States v. Seeger, supra,
and as it is in the prevailing opinion) to exempt from military service all individuals who
in good faith oppose all war, it being clear from both the legislative history and textual
analysis of that provision that Congress used the words "by reason of religious training
and belief" to limit religion to its theistic sense and to confine it to formal, organized
30 worship or shared beliefs by a recognizable and cohesive group. Pp. 348-354.
2. The question of the constitutionality of 6 (j) cannot be avoided by a construction of that
provision that is contrary to its intended meaning. Pp. 354-356.
3. Section 6 (j) contravenes the Establishment Clause of the First Amendment by
exempting those whose conscientious objection claims are founded on a theistic
35 belief while not exempting those whose claims are based on a secular belief. To
comport with that clause an exemption must be "neutral" and include those whose
belief emanates from a purely moral, ethical, or philosophical source. Pp. 356-361.
4. In view of the broad discretion conferred by the Act's severability clause and the
longstanding policy of exempting religious conscientious objectors, the Court, rather than
40 nullifying the exemption entirely, should extend its coverage to those like petitioner who
have been unconstitutionally excluded from its coverage. Pp. 361-367.
END QUOTE
.
With social security benefits there is a further problem in that considering the Welsh case the
45 commonwealth of Australia has a problem that if religious objection is maintainable for a person
to refuse to work in a particular position, if not in a weapon manufacturing factory then perhaps
in a slaughter house then likewise the same should be applicable for an ATHIES. As one cannot
claim benefits upon religion that others would be denied as then it would allow a “benefit” to
religion to advance a particular religion above that of others.
50 The moment the commonwealth allows exceptions for a person of one religion but not that for
another religion or ATHIEST then the commonwealth of Australia would be to enhance the
promotion of a certain religion. This likewise can be held having been with Mr peter Costello
providing for this Church of a particular religion to gain advantage above other religions and/or
ATHIEST who may have their own structure to come together, being it that the room of their
building, being it of a gazebo for their BBQ meeting to deliberately abstain from religious
indoctrinations or otherwise still would a kind of non-religious practices as like religious
5 practices of a person of a certain religion.
.
The Selective Serv. Draft Law Cases [Arver v. United States], 245 U.S. 366 (1918) “Exemption
of clergy, theology students, and pacifist sects from combat service is constitutional.” Free
Exercise Exemptions-Miscellaneous yet again this was subsequently so to say clarified by the
10 Welsh v. United States, 398 U.S. 333 (plurality) (1970) case regarding “Beliefs held with strength
of traditional religious convictions are entitled to conscientious objector status.” Military
Service.
Clay v. United States, 403 U.S. 698 (per curiam) (1971) “Conviction of Black Muslim for
refusing induction is reversed when government conceded pacifism and sincerity.” Military
15 Service
Diffenderfer v. Central Baptist Church, 404 U.S. 41 (per curiam) (1972) “Challenge to property
tax exemption for church parking lot used for commercial purposes is moot due to change in
statute.” Statutory Exemptions for Religious Persons/Entities Tax Exemptions
Thomas v. Review Bd., 450 U.S. 707 (1981) “Denial of unemployment benefits because religious
20 beliefs forbade production of armaments violated First Amendment.” Military Service
Unemployment Compensation
.
Jensen v. Quaring, 472 U.S. 478 (aff'd by equally divided Court) (1985) “Struck down
requirement that applicant submit to having photograph taken for affixing on driver's license as
25 unconstitutionally burdening free exercise.” Free Exercise Exemptions-Miscellaneous
The last mentioned case however is noticeable that the same cannot apply in any State in the
Commonwealth of Victoria as the Framers of the Constitution specifically provided that States
could legislate as to religion. The question then is if the Commonwealth of Australia could insist
upon photo’s to be provided on driving licenses/passports, etc, and in my view the
30 Commonwealth of Australia legitimately could legislate as the Framers of the Constitution made
clear that religious practices could only be permitted for so far they complied with legal
provisions. As such if the Commonwealth were to legislate to target a specific religion then it
would be unconstitutional
.
QUOTE Mr. OCONNOR.-
We must remember that in any legislation of the Commonwealth we are dealing with the
Constitution. Our own Parliaments do as they think fit almost within any limits. In this
case the Constitution will be above Parliament, and Parliament will have to conform
40 to it.
END QUOTE
.
QUOTE
45 Mr. GORDON.- The court may say-"It is a good law, but as it technically infringes
on the Constitution we will have to wipe it out."
END QUOTE

50 QUOTE
Mr. HIGGINS.-A number of laws have been held to be unconstitutional in America
because of their reasons and because of their motives. There was a funny case in San
Francisco, where a law was passed by the state that every prisoner, within one hour of his
coming into the prison, was to have his hair cut within one inch of his head. That looked
very harmless, but a Chinaman brought an action to have it declared unconstitutional, and
it turned out that the law was actually passed by the Legislature for the express
5 purpose of persecuting Chinamen.
Mr. BARTON.-That took place under the next clause in this Bill, which is a similar
enactment.
Mr. HIGGINS.-I did not say that it took place under this clause, and the honorable
member is quite right in saying that it took place under the next clause; but I am trying to
10 point out that laws would be valid if they had one motive, while they would be invalid
if they had another motive. All I want is, that there should be no imposition of any
observance because of its being religious.
END QUOTE
.
15 In the Commonwealth of Australia however it is unlikely that this kind of legislation to prosecute
Chinamen would be deemed unconstitutional because of the Framers of the Constitution
specifically having provided for s.51(xxvi) which was set out to “DISCRIMINATE” against
any particular race. (CLARIFICATION: Personally I oppose discrimination but my personal
views cannot interfere with the true meaning and application of the constitution.)
20 .
Therefore there is little use for anyone to use all kinds of Authorities and then rely upon this in
the courts, and likewise so in the parliament, as if this is applicable because unless one is a
CONSTITUTIONALIST, as I am and extensively researched matters as such one can easily
misconceive the appropriate application of any authorities, even so the Framers of the
25 Constitution so to say borrowed s.116 of the constitution of the first amendment of the U.S.A.
constitution. This, because the Framers of the Constitution didn’t intend to follow the same kind
of application and therefore to merely assume what applies in the U.S.A. as to tax exemption
versus that in the Commonwealth of Australia would be a gross miscarriage of what is JUST and
PROPER. As I understand it the judges appointed to the High Court of Australia do not need to
30 have any competence as to be appointed to this court and to determine constitutional matters and
as such basically they are appointed with so to say “training wheels” and tough luck for those
appearing before the court and end up with an ill conceived judgment that is detriment to their
case. As Wakim HCA 27 of 1999 proved that previously the High Court of Australia had one
ruling about the application and standing of the Cross Vesting Act and next they overrule this
35 decision. In my view this kind of conduct is at the very least scandalous and untenable and hence
forth a constitutional decision apart of appeal decisions should be erected that have judges sitting
at this constitutional bench which are specifically educated in constitutional matters and not as
previously occurred a judge declares not to know the constitutional issue and refuse to hand
down a judgment and by this the appellant lost the tried 3-3- decision appeal.
40 .
Below are a few (Ok a bit more then a few) statements as to contractual meanings and
applications including about a grant, etc. This is so as to try to get a common understanding as
many persons are not aware that a grant actually is a contract. As such, as was occurring with the
grants regarding insulation it established a certain contract between the Government and the
45 beneficiaries who obtained the contracts (grants) and as such with any contract a “DUTY OF
CARE” is applicable.
.
TRUSTEES OF DARTMOUTH COLLEGE v. WOODWARD. February 2, 1819 17 U.S. 518, 4 L.Ed. 629,
4 Wheat. 518, (Cite as: 17 U.S. 518) Supreme Court of the United States,
50 QUOTE

A college whose charter declared that its purpose was to spread Christian knowledge
among the Indians, and establish the best means of education in a certain province,
for the benefit of the province, and whose trustees or governors were originally named
by the founder, and invested with the power of perpetuating themselves, is an
5 eleemosynary corporation.
END QUOTE
.
10 QUOTE
Corporations aggregate consist of those for public government, such as those for
government of a town, city or the like, and those for private charity subject to private
government of those who erect them.
END QUOTE
15 .
QUOTE
The fact that a corporation is established for the purpose of general charity, or for
20 education generally, does not per se make it a public corporation.
END QUOTE
.
25 QUOTE
Where corporation for which charter was granted by crown was expressly created to
distribute in perpetuity charitable donations of private benefactors, and trustees by
terms of charter were to manage fund contributed, there was an implied contract, as
soon as donation was made to corporation, that the crown would not revoke or alter
30 charter or change its administration without consent of corporation, and there was an
implied contract between corporation and every benefactor that it would administer
contributions for objects stipulated in charter.
END QUOTE
.
35 TRUSTEES OF DARTMOUTH COLLEGE v. WOODWARD. February 2, 1819 17 U.S. 518, 4 L.Ed. 629,
QUOTE
A college is a private charity as well as a hospital, and both are eleemosynary.
END QUOTE
40 .
QUOTE
The mere act of incorporation will not change a charity from a private to a public one.
45 END QUOTE
.
QUOTE
50 A college or hospital founded by a private benefactor is a "private corporation"
although dedicated by its charter to general charity.
END QUOTE
.
QUOTE
Where a private eleemosynary corporation is created by charter of the crown, it is
5 subject to no other control on part of the crown than what is expressly or implicitly
reserved by charter itself and, in absence of reservation for that purpose, crown
cannot, without consent of corporation, alter or amend charter or divest corporation
of any of its franchises, add to them, add to or diminish number of trustees remove
any of members, change or control administration of charity or compel corporation to
10 receive new charter.
END QUOTE
.
15 QUOTE
An eleemosynary corporation is subject to general law of the land and may forfeit its
corporate franchises by misuser or nonuser of them.
END QUOTE
.
QUOTE
Where purpose of contributions to chartered college was the propagation of the
Christian religion among the savages, fact that college was to be located in New
25 Hampshire and that New Hampshire would benefit from establishment thereof, did
not place beneficial interest therein in the people of New Hampshire so as to make it a
public corporation subject to control of state legislature.
END QUOTE
.
QUOTE
A private charitable corporation is subject to control laws and visitation of its
founders and not to general control of government.
35 END QUOTE
.
QUOTE
40 A college, founded by private benefactors, is not constituted a public corporation,
controllable by the government, by receiving a charter from the government, though
the funds may have been generally derived from the bounty of the government.
END QUOTE
.
QUOTE
Where visitorial power is vested in trustees of charity, they are not beyond reach of
the law, but as managers of revenues of corporation, they are subject to general
50 superintending power of court of chancery, not as possessor of a visitorial power, but
as possessing a general jurisdiction to redress grievances and suppress fraud in case of
abuse of trust.

END QUOTE
.
5 QUOTE
Where a corporation is a mere trustee of a charity, a court of equity, although it
cannot appoint or remove a corporator, will in case of gross fraud or abuse of trust
take away the trust from the corporation and vest it in other hands.
END QUOTE
10 .
QUOTE
The trustees of college for which corporate charter had been obtained were amenable,
15 as managers of property and revenues of corporation, to jurisdiction of judicial
tribunals of state, but as visitors, their discretion was limited only by charter and was
liable to no supervision or control, unless it was fraudulently misapplied.
END QUOTE
.
QUOTE
Where founder of college obtained corporate charter therefor from British crown and
assigned the government and control of college to the trustees in their corporate
25 character, the visitorial power rightfully devolved on the trustees.
END QUOTE
.
30 QUOTE
Where trustees or governors of charity are incorporated to manage the charity, the
visitorial power is deemed to belong to them in their corporate character.
END QUOTE
.
QUOTE
The Supreme Court in a doubtful case will not pronounce a legislative act to be
contrary to constitution.
40 END QUOTE
.
QUOTE
45 The constitutional provision prohibiting states from passing laws impairing
contractual obligations does not embrace contracts other than those which respect
property or some object of value, and confer rights which may be asserted in a court
of justice.
END QUOTE
50 .
QUOTE

It was not intended by constitutional provision prohibiting states from passing laws
impairing contractual obligations to create any new obligations or give any new
efficacy to nude pacts, but it was intended to preserve all obligatory force of contracts
which they had by the general principles of law.
5 END QUOTE
.
QUOTE
10 Religion, charity and education are not of so little estimation that contracts for their
benefit must be excluded from protection of constitutional provision prohibiting states
from passing laws impairing contractual obligations.
END QUOTE
.
QUOTE
The charter of a corporation created by the state is a contract, and is in all particulars
inviolable, unless in the charter itself, or in some general or special law to which it was
20 taken subject, there is a power reserved to the legislature to alter or amend.
END QUOTE
.
25 QUOTE
Where franchises granted by charter creating college were vested in trustees thereof
in their corporate character, and lands and other property subsequently acquired
were held by trustees in the same manner, the trustees were vested with a sufficient
beneficial interest as to bring charter within purview of constitutional provision
30 prohibiting states from passing laws impairing contractual obligations.
END QUOTE
.
35 QUOTE
The validity and justice of laws of a civil corporation are examinable by court having
jurisdiction over it, and such corporation may be controlled and its constitution
altered and amended by government in such manner as public interest may require,
and such interference impairs no contract.
40 END QUOTE
.
QUOTE
45 The creation of a corporation for educational purposes by charter was such a grant as
constituted a "contract" within constitutional provision prohibiting states from
passing laws impairing contractual obligations.
END QUOTE
.
QUOTE
That corporation created by charter granted by the crown was not then in existence
did not prevent the charter from being construed as a contract within constitutional
55 provision prohibiting states from passing laws impairing contractual obligations.
END QUOTE
.
5 QUOTE
The application to the crown for a charter to incorporate a religious and literary
institution for which large contributions had been made, the granting of the charter
and the conveyance of property on the faith of the charter constituted a "contract", as
respects whether that contract was within constitutional provision prohibiting states
10 from passing laws impairing contractual obligations.
END QUOTE
.
15 QUOTE
That original founders of college, which had obtained charter from crown, had no
further interest in property contributed by them, that students were fluctuating and
without vested interest and that trustees of college had no beneficial interest to be
protected, did not prevent contract, to which the donors, trustees and the crown were
20 original parties, from being within constitutional provision prohibiting states from
passing laws impairing contractual obligations.
END QUOTE
.
25 4 Wheat. 518, (Cite as: 17 U.S. 518) Supreme Court of the United States,
QUOTE
That a corporation is established for the purpose of education generally, does not per
se make it a public corporation liable to the control of the legislature.
END QUOTE
30 .
QUOTE
City ordinances made in pursuance of law, and granting to a corporation the right to
35 build and operate street-railway lines in the city, after acceptance by the corporation
and the expenditure of large sums of money on the faith thereof, constitute a contract
protected by U.S.C.A.Const. art. 1, § 10, forbidding states to make any law impairing
the obligation of contracts.
END QUOTE
40 .
QUOTE
Except so far as the constitution may protect them from interference, offices are
45 neither grants, nor contracts, nor obligations which cannot be changed or impaired.
The term, duties, and compensation thereof are subject to the legislative will. The
office may be abolished, or the duties and compensation incident thereto may be taken
away from the incumbent, and given to another.
END QUOTE
50 .
QUOTE

A contract is either "executory" or "executed"; by an "executory contract" a party
binds himself to do or not to do a particular thing, and an "executed contract" is one
in which the object of the contract is performed.
END QUOTE
5 .
QUOTE
A "contract" is a transaction between two or more persons in which each party comes
10 under an obligation to the other, and each reciprocally acquires a right to whatever is
promised by the other.
END QUOTE
.
QUOTE
A "contract executed" is one in which the object of the contract is performed, and
differs in nothing from a grant.
END QUOTE
20 .
QUOTE
An "executory contract" is one in which a party binds himself to do or not to do a
25 particular thing.
END QUOTE
.
30 QUOTE
A grant in its own nature amounts to an extinguishment of the right of the grantor
and implies a contract not to reassert that right.
END QUOTE
.
QUOTE
A grant is a contract.
END QUOTE
40 .
QUOTE
Mere executory contracts cannot be enforced at law unless there be a valuable
45 consideration to sustain them.
END QUOTE
.
50 QUOTE
It is not necessary that consideration for a contract should be a benefit to the grantor,
but it is sufficient if it imports damage or loss or forbearance of benefits or any act
done or to be done on the part of the grantee.
END QUOTE
.
5 QUOTE
When a contract has once passed bona fide into grant, neither the king nor any
private person who may be the grantor can recall the grant of the property, although
the conveyance may have been purely voluntary.
END QUOTE.
10 .
QUOTE
A contract executed, as well as one that is executory, contains obligations binding on
15 the parties.
END QUOTE.
.
20 QUOTE
A corporation is an artificial being, invisible, intangible, and existing only in
contemplation of law.
END QUOTE.
.
QUOTE
A "corporation" is a franchise for a number of persons to be incorporated and exist
as a body politic, with a power to maintain perpetual succession and to do corporate
30 acts, and each individual of such a corporation is said to have a franchise or freedom.
END QUOTE
.
35 QUOTE
Corporations are sole or aggregate. An aggregate corporation, at common law, is a
collection of individuals united into one collective body, under a special name, and
possessing certain immunities, etc., which do not belong to the natural persons
composing it.
40 END QUOTE.
.
QUOTE
45 An "aggregate corporation" is an artificial person existing in contemplation of law
and endowed with powers and franchises which are considered as subsisting in
corporation itself, and hence such a corporation may sue and be sued by its own
members and may contract with them in same manner as with a stranger.
END QUOTE
50 .
QUOTE

A charter may be granted upon an executory as well as on an executed consideration,
and when it is granted to persons who have not made application therefor, there is an
implied contract, upon acceptance of grantees, that they will perform duties and
exercise authority conferred by charter.
5 END QUOTE
.
QUOTE
10 A gift by the crown of incorporeal hereditaments, such as corporate franchises, when
executed, is a "grant".
END QUOTE
.
QUOTE
When a charter is granted, and the corporation is to be brought into existence by
some future acts of the corporators, the franchises or property which the charter
grants to the body remain in abeyance until such acts are done; and, when the
20 corporation is brought into life, the franchises instantaneously attach.
END QUOTE
.
25 QUOTE
An aggregate corporation at common law possesses capacity of perpetual succession,
of acting by the collected vote or will of its component members and of suing and
being sued in all things touching its corporate rights and duties.
END QUOTE
30 .
QUOTE
A corporation has no power except what is given by its incorporating act, either
35 expressly or as incidental to its existence.
END QUOTE
.
40 QUOTE
A grant of the king, at the suit of the grantee, is to be construed most beneficially for
the king and most strictly against the grantee.
END QUOTE
.
QUOTE
Although a particular case may not in itself be of sufficient magnitude to induce a rule
of law, it must be governed by the rule when established, unless some plain and strong
50 reason for excluding it can be given.
END QUOTE
.

QUOTE
"Public corporations" are generally esteemed such as exist for public political
5 purposes, such as towns, cities, parishes and counties, but strictly speaking they are
such only as are founded by government for public purposes, where whole interest
belongs to the government.
END QUOTE
.
QUOTE
A gift completely executed is irrevocable and property conveyed by it becomes as
against the donor, the absolute property of the donee, and no subsequent change of
15 donor's intention can change rights of donee.
END QUOTE
.
20 QUOTE
All contracts and rights respecting property remained unchanged by the revolution
by which freedom from the British crown was obtained.
END QUOTE
.
25 http://www.churchstatelaw.com/cases/Coit.asp
Green v. Connally, D.C., 330 F.Supp. 1150.
QUOTE
Charitable trust cannot validly be established to accomplish purpose contrary to
public policy.
30 END QUOTE
..
http://www.churchstatelaw.com/cases/Coit.asp
QUOTE
35 Generally, trusts for education are considered to be for benefit of community, but this
general rule is subject to qualification by rule that charitable trust cannot validly be
established to accomplish purpose contrary to public policy.
END QUOTE
.
QUOTE
Federal tax exemptions and deductions are generally unavailable for activities
contrary to declared federal public policy.
45 END QUOTE
.
QUOTE
50 . [ General right of association is protected no matter how unpopular group's
purposes or characteristics may be, and one has constitutionally protected right to
belong to political groups embracing both legal and illegal aims so long as one does
not intend to engage in acts in furtherance of their unlawful purposes.
END QUOTE
55 .
Then consider the following quotation:
.
QUOTE Mr. SYMON:
5 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.
END QUOTE
.
10 The following in the U.S.A is applicable while in the Commonwealth of Australia precisely the
reverse is applicable because of s.51(xxvi).
QUOTE
15 Compelling as well as reasonable government interest in interdiction of racial
discrimination stands on highest constitutional ground and is dominant over other
constitutional interests to extent that there is complete and unavoidable conflict.
U.S.C.A.Const. Amends. 1, 5, 14; Civil Rights Act of 1964, §§ 401-605, 401(c), 601, 42
U.S.C.A. §§ 2000c to 2000d-4, 2000c(c), 2000d.
20 END QUOTE
.
QUOTE
25 Private individual has no constitutional right to demand government support of
racially discriminatory policies.
END QUOTE
.
30 Green v. Connally, D.C., 330 F.Supp. 1150.
QUOTE
Governmental and constitutional interest of avoiding racial discrimination in
educational institutions embraces interest of avoiding even indirect economic benefit
of tax exemption.
35 END QUOTE
.
QUOTE
40 Where there is compelling government interest, even First Amendment freedoms may
be limited by appropriately confined lesser measures though such freedoms could not
be prohibited directly.
END QUOTE
.
45 Again, because I am a CONSTITUTIONALIST I understand the complete opposite of
reasoning whereas ordinary lawyers may not have a clue about this.
.
50 QUOTE
Federal courts have power to correct improper or inadequate action of federal
officials not only, as in case of state officials, for failure to observe constitutional
limits, but also for failure to act in consonance with pertinent federal legislation, and
where necessary courts have power even to command affirmative action.
55 END QUOTE
.
QUOTE
5 Public interest requires court to assure adequate consideration of initial applications
to government when that is crucial step not readily correctible at later stage on
consideration of permanent application.
END QUOTE
.
QUOTE
Where improvident ruling of Internal Revenue Service recognized tax-exempt status
and advance assurance of deductibility would guarantee deductibility of contributions
15 later made even if subsequent audit resulted in revocation (prospectively) of
exemption ruling, court's decree could extend to matters of administration, such as
information requirements, though court had accepted service's current interpretation
of statute.
END QUOTE
20 .
QUOTE
Duty of court as court of equity to do complete justice is as applicable to protection of
25 statutory rights as to protection of constitutional rights, and principle is applicable
with full vigor when statute relates to fundamental civil rights.
END QUOTE
.
QUOTE
The relevant provisions of the Internal Revenue Code are as follows:
Internal Revenue Code § 170, 26 U.S.C. § 170.
(c) Charitable contribution defined.-For purposes of this section, the term

35 "charitable contribution" means a contribution or gift to or for the use of-
***
(2) A corporation, trust, or community chest, fund, or foundation- (A) created or

organized in the United States or in any possession thereof, or under the law of the
United States, any State, the District of Columbia, or any possession of the United
40 States; (B) organized and operated exclusively for religious, charitable, scientific,
literary, or educational purposes or for the prevention of cruelty to children or
animals; (C) no part of the net earnings of which inures to the benefit of any
private shareholder or individual; and (D) no substantial part of the activities
of which is carrying on propaganda, or otherwise attempting, to influence
45 legislation. A contribution or gift by a corporation to a trust, chest, fund, or
foundation shall be deductible by reason of this paragraph only if it is to be
used within the United States or any of its *1157 possessions exclusively for
purposes specified in subparagraph (B). Internal Revenue Code § 501, 26 U.S.C.
§ 501: (c) List of exempt organizations.-***
50 ***

(3) Corporations, and any community chest, fund, or foundation, organized and
operated exclusively for religious, charitable, scientific, testing for public safety,
literary, or educational purposes, or for the prevention of cruelty to children or
animals, no part of the net earnings of which inures to the benefit of any private
5 shareholder or individual, no substantial part of the activities of which is carrying
on propaganda, or otherwise attempting, to influence legislation, and which does
not participate in, or intervene in (including the publishing or distributing of
statements), any political campaign on behalf of any candidate for public office.
[2]The key words are not defined with particularity in the Code or Treasury
10 Regulations. But clearly, the term "charitable" is used "in its generally accepted legal
sense," Treas.Reg. § 1.501 (c) (3)-1(d) (2), and not in a street or popular sense (such as,
e. g., benevolence to the poor and suffering). See H. Reiling, "What is a Charitable
Organization?" 44 A.B.A.J. 525, 527 (1958). Thus "strong analogy" can be derived
from the general common law of charitable trusts, at least for close interpretative
15 questions. Girard Trust Co. v. Commissioner of Internal Revenue, 122 F.2d 108, 110 (3d
Cir. 1941); Pennsylvania Co. for Insurance of Lives and Granting Annuities v. Helvering,
62 App.D.C. 254, 66 F.2d 284 (1933).
B. Denial of Exemptions and Deductions May Be Required by Underlying Law of
Charitable Trusts
20 There is at least a grave doubt whether an educational organization that practices racial
discrimination can qualify as a charitable trust under general trust law. We need not decide
that question, but brief discussion provides helpful perspective.
1. General Law of Charitable Trusts.
Apart from tax advantages, the law bestows on charitable trusts many privileges not
25 accorded their non-charitable cousins. As Bogert's text notes, these include: permission for
the trust to be perpetual in duration; to inure to the benefit of beneficiaries who are not
definitely ascertainable at creation of the trust or within the period of the rule against
perpetuities; and to escape some of the rules regarding accumulations, as well as those
against remoteness in vesting and suspension of the power of alienation. Special rules of
30 construction are applied in an effort to support a charitable trust. And under the cy pres
doctrine the courts modify charitable trusts to meet changing conditions in a way not
permitted with regard to private trusts. "All these exceptions and exemptions imply more or
less disadvantage to the community. The law must find in the trust which is to receive
the name 'charitable' some advantages to the public which more than offset the
35 detriments which arise out of the special privileges accorded to that trust. [FN5] "
FN5. 4 G. Bogert, The Law of Trusts and Trustees §§ 361, 362 (2d ed. 1964).
It is because society is "the real beneficiary of every charitable trust" that it is

enforceable even though there are no ascertainable beneficiaries to bring an issue or
controversy to the chancellor. It is the "public benefits arising from the charitable
40 trust" that result in its enforcement by a public official, traditionally the Attorney
General whose duties include protection of the people of the state in general. [FN6]
And if the purpose of a trust does not merit classification as beneficial to the
community and hence a charitable trust, then however honorable its purpose-say, a
trust for the erection of monuments, the care *1158 of graves, the support of animals,
45 and in various states for the saying of masses,-there is only an "honorary trust" which
the transferee may decline to fulfill and remit to the settlor or estate. There is no
community benefit which permits the time and effort of a public official to be devoted
to its enforcement. [FN7]
FN6. 4 Bogert, supra note 5 § 411, p. 318; see § 362, p. 5 for the first sentence of this
paragraph of opinion.
5 FN7. Restatement (Second) of Trusts § 124 (1959).
Underlying the law of charitable trusts is the conception, both in definition and
requirement, that a "charitable" trust is one formed to serve the general welfare and
be "beneficial to the community." Often cited is Ould v. Washington Hospital for
Foundlings, 95 U.S. 303, 311, 24 L.Ed. 450 (1877), "A charitable use, where neither law
10 nor public policy forbids, may be applied to almost any thing that tends to promote the
well-doing and well-being of social man." The American Law Institute restates the doctrine
thus: "A purpose is charitable if its accomplishment is of such social interest to the
community as to justify permitting the property to be devoted to the purpose in perpetuity.
[FN8] "
15 FN8. Id. § 368, Comment b.
Calculations of community benefit are often difficult, and as time passes, conceptions
of worthy purposes may change. "Because of this constant flux," notes one
commentator, [FN9] "attempts to formalize the community benefit into abstract rules
inevitably degenerate into a listing of ad hoc responses to particular situations." The
20 list in the preamble to the Statute of Charitable Uses, 43 Eliz. I, c. 4(1601), contained a fair
collation of the then common charities. Other classical definitions, employing categories
derived from the Statute, are set forth in the footnote. [FN10] But underlying any
traditional listing of charitable purposes was the element that "accomplishment of the
objects listed foreseeably redounded to community betterment." Annot. 12 A.L.R.2d 849,
25 855 (1950).
FN9. Clark, Charitable Trusts, the Fourteenth Amendment and the Will of
Stephen Girard, 66 Yale L.J. 979, 997 (1957).
FN10. Lord Macnaghten's oft-cited definition in Commissioners for Special

Purpose of Income Tax v. Pemsel, [1891] A.C. 531, 583 stated:
30 "Charity" in its legal sense comprises four principal divisions: trusts for the relief
of poverty; trusts for the advancement of education; trusts for the advancement of
religion; and trusts for other purposes beneficial to the community, not falling
under any of the preceding heads. The trusts last referred to are not the less
charitable in the eye of the law, because incidentally they benefit the rich as well
35 as the poor, as indeed, every charity that deserves the name must do either directly
or indirectly.
Restatement (Second) of Trusts, § 368 (1959), spells out two additional

categories:
Charitable purposes include
40 (a) the relief of poverty;
(b) the advancement of education;
(c) the advancement of religion;

(d) the promotion of health;
(e) governmental or municipal purposes;
(f) other purposes the accomplishment of which is beneficial to the community.
A leading American definition of charitable trusts appears in

5 Jackson v. Phillips, 14 Allen 539, 556 (Mass.1867).
Trusts coming within Lord Macnaghten's first three categories (supra, note 10)-relief of
poverty; advancement of education; advancement of religion-are recognized as beneficial
to the community as a whole even though the class of persons benefiting directly is
relatively small. When trusts come under the general, residual category ("other purposes
10 beneficial to the community") it must be shown that the class of beneficiaries is large
enough to establish the interest of the community in enforcement of the trust. Restatement
(Second) of Trusts § 375, Comment a. And so, even several years before the July, 1970,
change in tax policy as to educational charities, the IRS took the position that contributions
to community recreation facilities would be deductible only if the facilities were open on a
15 racially non-discriminatory basis. [FN11]
FN11. Rev.Rul. 67-325, 1967-2 Cum.Bull. 113.
*1159 Analysis of the contribution of a trust purpose to the benefit of the community must
take into account broad principles of the general welfare, as expounded, inter alia, in
constitutions, statutes, and court decisions. There may well be changes over time in the
20 application of these principles to particular uses. For example, there was no mention of
alleviating the suffering of animals in the Statute of Charitable Uses. Today it is recognized
that the community has an interest in the prevention of cruelty to animals and societies
formed for the prevention of cruelty to animals have been widely held charitable. [FN12]
Changes in the courts' conceptions of what is charitable are wrought by changes in moral
25 and ethical precepts generally held, or by changes in relative values assigned to different
and sometimes competing and even conflicting interests of society. [FN13]
FN12. 4 A. Scott, The Law of Trusts § 374.2 at 2905-06 (1967).
FN13. An 1895 English case held that a trust for the prevention of vivisection was
a valid charitable trust, In re Foveaux, (1895) 2 Ch. 501, but in 1948 it was
30 overruled by the House of Lords, which held that the purpose of such a trust was
to impede medical research and that it therefore could not be beneficial to the
community, National Anti- Vivisection Society v. Inland Revenue
Commissioners, (1948) A.C. 31.
Scholarly authorities agree that the standards may change over time so that
35 enumerated categories may not be immutably "charitable." Professor Bogert
writes: [FN14]
FN14. 4 G. Bogert, supra note 5, § 369 at 63.
The courts should be left free to apply the standards of the time. What is charitable in one
generation may be non-charitable in a later age, and vice versa. Ideas regarding social
40 benefit and public good change from century to century, and vary in different communities.
While as a matter of form Professor Scott organized his treatise according to a set of
traditional charitable categories, he cautions:

The interests of the community ** vary with time and place. Purposes which may
be regarded as laudable at one time may at other times be regarded as subserving
no useful purpose or even as being illegal. So, too, what in one community is
regarded as beneficial to the community may in another be regarded as useless if
5 not detrimental. [FN15]
FN15. 4 A. Scott, supra, note 12, § 368 at 2855-56.
Another writer notes that the ultimate test of an attempted charitable trust is not whether it
fits into a traditional category but whether the court finds it "beneficial to the community."
See Annot. 12 A.L.R.2d 849, 859 (1950).
10 This new approach to charities does not mean that courts have abandoned their
traditional favor towards charitable trusts. It simply means that the intrinsic merits
of a proposed charity are issuable; and trusts are not to be upheld just because
they come within a traditional category
. The courts are, of course, vigilant to inquire whether a charitable trust has become
15 unenforceable as written because of lack of benefit to the community even assuming it was
valid when executed. The testator or settlor is not given the authority to impose his
judgment, however enlightened and reasonable when exercised, on future generations and
in perpetuity, with assurance of enforcement by state officials, without authority in the
courts to reassess the reasonableness of his purposes in the light of future conditions and
20 public policies.
2. The Common Law Rulings Avoiding Enforcement of Purpose of Racially
Discriminatory Private Education.
[3][4]All charitable trusts, educational or otherwise, are subject to the requirement that the
purpose of the trust may not be illegal or contrary to public policy. This elementary
25 principle, referred to by the Supreme Court in Ould supra, was restated as follows in the
Restatement (Second) of Trusts § 377, Comment c (1959): "A trust for a purpose *1160 the
accomplishment of which is contrary to public policy, although not forbidden by law, is
invalid." This public policy doctrine operates as a necessary exception to or qualifier of the
precept that in general trusts for education are considered to be for the benefit of the
30 community. Otherwise, for example, Fagin's school for pickpockets would qualify for a
charitable trust.
END QUOTE
.
The following quotation places really in question the issue of Social Security payments in regard
35 of people living together but not being married as “husband and wife” in accordance to the
Family Law Act 1975 provisions!
.
40 QUOTE
a. Public Policy
[5]Before considering the more particular subject of charities, we refer to the general and
well-established principle that the Congressional intent in providing tax deductions and
exemptions is not construed to be applicable to activities that are either illegal or contrary
45 to public policy. For example, the dependency deduction was construed in Leon
Turnipseed, 27 T.C. 758 (1957), to disallow such a deduction if the relationship
between the taxpayer and the "dependent" was in violation of local law. This was later
codified in Section 152(b) (5) of the Code. See also Fuller v. Commissioner of Internal
Revenue, 213 F.2d 102 (10th Cir. 1954) limiting the deduction for individual business
losses (now § 165(c)).
5 END QUOTE
.
Then consider the following:
10 QUOTE
The Internal Revenue Code does not contemplate the granting of special Federal tax
benefits to trusts or organizations, whether or not entitled to the special state rules
relating to charitable trusts, whose organization or operation contravene Federal
public policy.
15 END QUOTE
.
It must therefore be clear that any religious entity registered as a NON PROFIT (NOT FOR-
PROFIT) entity cannot conduct itself, such as interfering in family relationships between its
members and former members to be denied contact with the former and/or ousted member
20 because this goes against public policy. Likewise any such religious entity that applies a
punishment of deprivation of liberty without it being first sanctioned by the courts in each and
every incident cannot be regarded to be acting lawfully and indeed rather is acting contrary to
“PUBLIC POLICY” and hence cannot be legitimately entitled to any registration of being a
NON PROFIT (NOT-FOR-PROFIT) entity for “PUBLIC PURPOSES”
25 .
QUOTE
A number of cases establishing public policy as a limitation on tax benefits have been
30 concerned with the ordinary and necessary business expense deduction under § 162 of the
Code. *1162 Commissioner of Internal Revenue v. Tellier, 383 U.S. 687, 694, 86 S.Ct.
1118, 16 L.Ed.2d 185 (1966); Tank Truck Rentals, Inc. v. Commissioner of Internal
Revenue, 356 U.S. 30, 33-34, 78 S.Ct. 507, 2 L.Ed.2d 562 (1958); Commissioner of
Internal Revenue v. Sullivan, 356 U.S. 27, 78 S.Ct. 512, 2 L.Ed.2d 559 (1958); Lilly v.
35 Commissioner of Internal Revenue, 343 U.S. 90, 96-97, 72 S.Ct. 497, 96 L.Ed. 769 (1952).
At issue in Tank Truck Rentals was the deductibility of fines paid for violations of state
maximum weight laws. Disallowing the deduction, the Court held, "A finding of
'necessity' cannot be made, however, if allowance of the deduction would frustrate
sharply defined national or state policies proscribing particular types of conduct,
40 evidenced by some governmental declaration thereof." (356 U.S. at 33-34, 78 S.Ct. at
509). The state policies of protecting their highways from damage and insuring the
safety of persons using them were "evidenced" by the state penal statutes. Id. at 34, 78
S.Ct. 507. Cautioning that "each case must turn on its own facts," the Court articulated that
"the test of nondeductibility always is the severity and immediacy of the frustration
45 resulting from allowance of the deduction. The flexibility of such a standard is necessary if
we are to accommodate both the congressional intent to tax only net income, and the
presumption against congressional intent to encourage violation of declared public policy."
Id. at 35, 78 S.Ct. at 510. [FN24]
FN24. Where there is no paramount declaration of government policy, the

50 Court has allowed expense deductions pursuant to the Federal policy of
taxing net income only.

Lilly v. Commissioner of Internal Revenue, 343 U.S. 90, 72 S.Ct. 497, 96 L.Ed.
769 (1952);
Commissioner of Internal Revenue v. Tellier, 383 U.S. 687, 86 S.Ct. 1118, 16

L.Ed.2d 185 (1966). In Commissioner of Internal Revenue v. Sullivan, 356 U.S.
5 27, 78 S.Ct. 512, 2 L.Ed.2d 559 (1958) the Court allowed a deduction for wages
and rent paid out illegally under a state law (because made in the operation of
bookmaking enterprises) because it could find no federal policy disapproving of
such expenses and because the deduction did not lessen the "sting" of the
independent state law penalties.
10 This public policy limitation on tax benefits applies a fortiori to the case before us,
involving the charitable deduction whose very purpose is rooted in helping institutions
because they serve the public good. The Internal Revenue Code does not contemplate
the granting of special Federal tax benefits to trusts or organizations, whether or not
entitled to the special state rules relating to charitable trusts, whose organization or
15 operation contravene Federal public policy. This principle cannot be applied without
taking into account that as to private philanthropy, the promotion of a healthy pluralism is
often viewed as a prime social benefit of general significance. In other words, society can
be seen as benefiting not only from the application of private wealth to specific purposes in
the public interest but also from the variety of choices made by individual philanthropists
20 as to which activities to subsidize. [FN25] This decentralized choice-making is arguably
more efficient and responsive to public needs than the cumbersome and less flexible
allocation process of government administration. [FN26]
FN25. See, e. g., the sources collected in Rabin, Charitable Trusts and Charitable
Deductions, 41 N.Y.U.L.Rev. 912, at 920-925 (1966).
25 FN26. See Saks, The Roll of Philanthropy: An Institutional View, 46 Va.L.Rev.

516, 524 (1960).
In a recent article, Judge Friendly has stressed the value of this pluralism, noting the
incongruity "if the extension of the helping hand of the government, even when the help is
monetary, were to turn our lively pluralistic society into a deadly uniformity ruled by
30 constitutional absolutes." Philanthropy is a delicate plant whose fruits are often better than
its roots; desire to benefit one's own kind may not be the noblest of motives but it is not
ignoble. It is the very possibility of doing something different than government can do, of
creating an *1163 institution free to make choices government cannot-even seemingly
arbitrary ones-without having to provide a justification that will be examined in a court of
35 law, which stimulates much private giving and interest. [FN27]
FN27. Friendly, the Dartmouth College Case and the Public-Private Penumbra, 12
Texas Quarterly (2d Supp.) 141, 171 (1969).
The indulgence of individual whim or preference has values but like all principles it cannot
be pushed beyond sound limits to extremes that cannot be approved. The individual
40 philanthropist cannot be indulged in his own vagaries as to what is charitable; he
must conform to some kind of norm, else he cannot obtain subsidy or tax exemption.
Similarly, the general principle of a "desire to benefit one's own kind" is an
acceptable incentive to philanthropy as applied to a wide range of causes.
END QUOTE
45 .
Again the quotation below relating to “DISCRIMINATION” as such doesn’t apply to the
Commonwealth of Australia due to s.51(xxvi) specifically having been inserted to avoid the
application as was in the U.S.A. and as such the quotation must be understood to apply only for
so far this is permissible considering s.51(xxvi) with keeping this in mind.
.
QUOTE
C. Avoidance of Constitutional Questions
[10]We are fortified in our view of the correctness of the IRS construction by the
consideration that a contrary interpretation of the tax laws would raise serious
10 constitutional questions, such as those we ventilated in our January, 1970, opinion. Clearly
the Federal Government could not under the Constitution give direct financial aid to
schools practicing racial discrimination. But tax exemptions and deductions certainly
constitute a Federal Government benefit and support. While that support is indirect,
and is in the nature *1165 of a matching grant rather than an unconditional grant, it would
15 be difficult indeed to establish that such support can be provided consistently with the
Constitution. The propriety of the interpretation approved by this court is underscored by
the fact that it obviates the need to determine such serious constitutional claims. [FN30]
FN30. SeeDandridge v. Williams, 397 U.S. 471, 475-476, 90 S.Ct. 1153, 25

L.Ed.2d 491 (1970);
20 Zschernig v. Miller, 389 U.S. 429, 444, 88 S.Ct. 664, 19 L.Ed.2d 683 (1968)
(Harlan, J., concurring);
Hamm v. Rock Hill, 379 U.S. 306, 316, 85 S.Ct. 384, 13 L.Ed.2d 300 (1964);
Spector Motor Service v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed.
101 (1944);
25 Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 345-348, 56 S.Ct. 466,
80 L.Ed. 688 (1936) (Brandeis, J., concurring).
That the constitutional inhibitions on government grants also reach tax benefits
provided by the government is evident from
Griffin v. County School Board, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256
30 (1964) and the references to Griffin in
Palmer v. Thompson, 401 U.S. ---, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971), that
the use of property tax credits for citizens contributing to the "private"
schools was material as showing that the state was "directly or indirectly
involved in the funding" of the segregated private academies and hence a
35 segregated school system.
D. There Is No Merit In Contentions of Intervening White Parents that This
Construction Is Unconstitutional
We must also consider the claim made by the intervenors that defendants' interpretation
violates their "right under the First Amendment to the Constitution to associate in private
40 schools of their choice without regard to the educational philosophy thereof," [FN31] and
that, under Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958), "what
may not be done directly cannot be done indirectly under the guise of a discriminatory
interpretation of the tax laws." [FN32]
FN31. Intervenors' Proposed Final Judgment, ¶ 4, submitted January 15, 1971.
FN32. Intervenors' Points and Authorities in Opposition to Plaintiffs' Motion for

Supplemental Preliminary Relief, June 26, 1970 at 12.
1. Freedom of Association
5 [11]We recognize with intervenors that the Bill of Rights grants to the citizens of our free
society a broad freedom of association. The liberty of a free people includes the right to
educate one's child in a school of the parent's choice in public, private, or parochial.
Griswold v. Connecticut, 381 U.S. 479, 482, 495, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).
These rights cannot be abridged by legislation which "unreasonably interferes with
10 the liberty of parents and guardians to direct the upbringing and education of
children under their control" or "which has no reasonable relation to some purpose
within the competency of the State as is the case with legislation that requires
attendance at public schools. Pierce v. Society of the Sisters, and Pierce v. Hill Military
Academy, 268 U.S. 510, 534-535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925).
15 We do not minimize the importance of the constitutional precepts established by the Pierce
cases in 1925, and their doctrinal predecessor, Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct.
625, 67 L.Ed. 1042 (1923). These decisions put a salutary end to an "effort to regiment the
mental life of Americans." [FN33] The vitality and continuing significance of this doctrine
is indisputable. Griswold v. Connecticut, supra. As Mr. Justice Brennan said concurring in
20 School District of Abington Tp., Pa. v. Schempp, 374, U.S. 203, 242, 83 S.Ct. 1560, 1583,
10 L.Ed.2d 844 (1963):
FN33. F. Frankfurter, Law and Politics (A. MacLeish and E. Prichard, Jr., eds.
1939) 195.
Attendance at the public schools has never been compulsory; parents remain
25 morally and constitutionally free to chose the academic environment in which
they wish their children to be educated. *** It is no proper function of the state or
local government *1166 to influence or restrict that election.
END QUOTE
.
30 The following also very much must be considered regarding what the Commonwealth of
Australia at times declares to be outlawed terrorist organizations. The truth is that if I
desire to be a member of any so called terrorist organization then nothing the
Commonwealth of Australia could do to interfere with this as long as my motives were not
as to be in breach of Australian laws!
35 .
QUOTE
[12]The general right of association is protected no matter how unpopular the group's
40 purposes or characteristics may be. Indeed, one has the constitutionally protected
right to belong to political groups embracing both legal and illegal aims so long as one
does not intend to engage in acts in furtherance of their unlawful purposes. Scales v.
United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961), Elfbrandt v. Russell, 384
U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966). "For the Constitution protects expression
45 and association without regard to the race, creed, or political or religious affiliation of the
members of the group which invokes its shield, or to the truth, popularity, or social utility
of the ideas and beliefs which are offered." NAACP v. Button, 371 U.S. 415, 444-445, 83
S.Ct. 328, 344, 9 L.Ed.2d 405 (1963).
END QUOTE
.
5 QUOTE
The basic precept that undercuts the claim of intervenors is simply this: Freedom
from governmental "regimentation" or interference is not to be equated with a right
of support. Freedom of association in political parties is of zenith importance in our
democracy, but certainly political parties and their sponsors have no constitutional
10 entitlement to government support, whether in the form of tax exemptions or
deductions or otherwise.
END QUOTE
.
The same is with the so called bike-gangs, where many honest and hardworking members
15 never get involved in any criminal conduct and as such could not be banned from being a
member of such a so called bike-gang merely because of its member may act unlawfully.
After all if this were to be applied then police officers could not be members of the police
force because there are police officers who are involved in rape, murder, armed robbery,
etc, etc.
20 Likewise, lawyers/judges/politicians have their own record of committing criminal offences
and one would then hardly argue that because of that no lawyer/judge/politician can belong
to the judiciary, be a lawyer or be a politician because of so to say some rotten apples
within the membership acting unlawfully.
.
25 The issue with any so called entity operating for “PUBLIC PURPOSES” is if in fact it has a
code of conduct that includes deprivation of freedom by inhumane and/or unlawful
punishment and/or deprivation of family contact by conditions placed upon its members.
.
And
QUOTE Mr. DEAKIN.-
What a charter of liberty is embraced within this Bill-of political liberty and religious
liberty-the liberty and the means to achieve all to which men in these days can
reasonably aspire. A charter of liberty is enshrined in this Constitution, which is also
35 a charter of peace-of peace, order, and good government for the whole of the peoples
whom it will embrace and unite.
END QUOTE
And
40 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
45 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
.
QUOTE

Mr. BARTON.- 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
5 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
10 it gives your people will not be maintained; and so, in the highest sense, the court you
are creating here, which is to be the final interpreter of that Constitution, will be such a
tribunal as will preserve the popular liberty in all these regards, and will prevent,
under any pretext of constitutional action, the Commonwealth from dominating the
states, or the states from usurping the sphere of the Commonwealth.
15 END QUOTE
.
The Framers of the Constitution were adamant that this The Commonwealth of Australia
Constitution Act 1900 (UK) provided the political liberties ordinary people were entitled upon.
.
QUOTE
Intervenors seek to avoid this approach by saying, apparently, that while they have no right
to individualized support they have a right to be free of discrimination through the
25 withdrawal of benefits available on general terms. Speiser v. Randall, 357 U.S. 513, 78
S.Ct. 1332, 2 L.Ed.2d 1460 (1958). Speiser involved an affirmative requirement imposed as
a condition of obtaining the tax exemptions provided for veterans by the state constitution.
A statute made qualification for the exemption dependent on the filing of an oath that the
applicant did not advocate the overthrow of the Government by force, violence or other
30 lawful means. Although the statute was construed by the state court to deny
exemptions only to claimants who engage in speech that may constitutionally be
punished, it was enforced through procedures, placing the burdens of proof and
persuasion on the taxpayers, that denied the procedural safeguards required by the
due process clause, and were held to interfere with the veterans' present freedom of
35 speech.
In the case before us exemptions and deductions would be denied not on account of beliefs
and associations but on account of acts and practices constituting discrimination among
students on account of race-acts contrary to a national policy that has constitutional
ingredients. If schools sincerely terminate those harmful activities they may obtain the
40 exemption. In Speiser the statutory scheme was offensive because it operated to chill
speech that was permissible, because of fears that the veterans might be unable to
establish its permissibility. It is not remotely suggested by intervenors that they fear lest
their schools will undertake only *1167 activities that are innocent, i. e., not racially
discriminatory, yet be wrongly condemned as discriminatory. Speiser certainly does not
45 hold that a government acts impermissibly in withholding tax benefits from one who
engages in activities that are reasonably and constitutionally deemed contrary to the
government's policy
END QUOTE
.

We also have that the Commonwealth of Australia has embedded the Bill of Rights, etc, even so
not specifically stated in wording in the constitution because as the Framers of the Constitution
made clear it was about the POLITICAL LIBERTIES that are applicable.
.
5 Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the
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
10 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
15 retains some remnant of parliamentary sovereignty, leaving it to the will of Parliament on
either side to attack each other's laws.
END QUOTE
.
20 National Australasian Convention)
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
25 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
.
30 HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates of
the National Australasian Convention)
QUOTE Mr. CLARK.-
for the protection of certain fundamental rights and liberties which every individual
citizen is entitled to claim that the federal government shall take under its protection and
35 secure to him.
END QUOTE
.
HANSARD18-2-1898 Constitution Convention Debates (Official Record of the Debates of
40 QUOTE Mr. ISAACS.-
The right of a citizen of this great country, protected by the implied guarantees of its
Constitution,
END QUOTE
.
QUOTE
Mr. BARTON.-Our civil rights are not in the hands of any Government, but the
rights of the Crown in prosecuting criminals are.
END QUOTE
50 .

QUOTE
Mr. HIGGINS.-But suppose they go beyond their power?
5
Mr. GORDON.-It is still the expression of Parliament. Directly a Ministry seeks to
enforce improperly any law the citizen has his right.
END QUOTE
.
10 Regretfully too often the judges are not competent themselves to understand/comprehend what
really is constitutionally applicable and we see this example time and time again with the High
Court of Australia where it hand down decision that are in my view ill-conceived and shows an
appalling lack of proper consideration of what really is constitutionally applicable.
.
15 QUOTE Chapter 000D HAVE EVERY BLUE-EYED BABY KILLED
Chapter 000D HAVE EVERY BLUE-EYED BABY KILLED
* Gary, what is your view about McHugh’s statement?
**#** INSPECTOR-RIKATI®, how can anyone put the Court in disrepute when you have
20 such idiotic statement of a judge. Well, I have put my bit on the Internet about it.
In my view considering that statement the parliament should have moved to have him removed
from the bench as soon as he made that statement.
If this is the kind of mentality and intelligence that we can expect from judges of the High Court
of Australia then I think we might as well appoint one of my grandchildren to the bench and at
25 least they be rather playing with toys and crayons and say nothing sensible then the utter rubbish
that we now had. And this kind of intelligence, or the lack thereof, is used to deal with
constitutional matters, no wonder wee are going downhill!
index.php?act=findpost&pid=617635index.php?act=findpost&pid=617635
30 QUOTE 070520 posting
I am very disturbed to find the following of a quotation to have found this discussion;
QUOTE
McHUGH J: I understand that and persons who have not had full legal training often think
35 of Magna Carta and the Bill of Rights as fundamental documents which control
governments, but they do not.
END QUOTE
QUOTE
40 But Parliament - some people would regard it as regrettable - can, in effect, do what it
likes. As it is said, some authorities could legislate to have every blue-eyed baby killed
if it wanted to.
END QUOTE
45 As a "constitutionalist" (not some lawyer who is brainwashed) I condemn any one, in

particularly judges, to undermine the constitutional system that exist in the POLITICAL
UNION BEING THE Commonwealth of Australia.
The Commonwealth of Australia, as like the European Union, is created by Statue and
50 itself has no common law. Hence, any jury that were to be involved in federal hearings
must be drawn from a State.
As author of the INSPECTOR-RIKATI® books in regard of constitutional and other

matters I have set out extensively how I succeeded and defeated Federal Government
lawyers after a 5-year legal battle on all constitutional issues I raised!
The Commonwealth of Australia Constitution Act 1900 (UK) was an act to create a
5 "APOLITICAL UNION" and the States who partly federated retaining all legislative
powers regarding "CIVIL RIGHTS" as it was their constitutions that were based upon the
provisions of the Magna Carta, Bill of Rights, Habeas corpus, etc.
In the Commonwealth of Australia, judges are appointed to the High Court of Australia
10 regardless lacking any competence in constitutional matters, in fact they may never have
practiced in constitutional matters, and in one incident a judge actually refused to hand
down a judgment other then to state he didn't have any knowledge in the constitutional
matter before the court and for this would abstain from handing down a judgment.
15 You find it as a matter of record that where the Governor-General was Defendant in a case
before the High Court of Australia then all 7 judges subsequently fraternised with the
governor-General, and no one has to be surprised the Court subsequently refused to allow
the case to be heard upon its MERITS.
20 In the Commonwealth of Australia judges are purportedly appointed by the Governor-

General but he merely appoints those who the Government provides to be appointed. Hence
a political stacking occurs.
The High Court of Australia in 1996 using their powers as a "persona designata" to make
25 decisions for the parliament, approved of the entire constitution to be replaced by the
Australia act 1986 (forget about it being constitutionally valid) so that there no longer is a
"constitutional Parliament" but the parliament now is above the constitution. As it now
legislated the (purported) constitution.
30 But, I successfully challenged this validity of this De Facto Constitution in Court.
Having myself served in the NATO at the then IRON CURAIN having been trained as a
sharpshooter, I personally deplore the usage of weapons, as I am trained to use it to kill.
However, I recognise the right of others to bear arms, for defending their rights, and even
35 the Framers of the Constitution (Australia) indicated that militia could be drawn from
civilians of a State after the federation was created. This to me implied that the
commonwealth of Australia would have been able to enlist armed civilians to serve at that
time to protect the shores of the Commonwealth of Australia until it could set up its own
defence force.
40
There are always terrible incidents involving firearms that stand out. Likewise there are
also terrible incidents where motor vehicles are standing out in having resulted to mass
killings.
45 Personally, I would prefer not a single person to have a firearm, but then I have to
recognise that others may desire that everyone should have a weapon to defend
himself/herself.
My wife, opposed me to even fit a knife sharpers on the kitchen wall, but wanted me to
50 hide it in a pantry, as she fears that someone might come in the residence and see the knives
and use it wrongly.

Surely, we are not going to ban all knives in the world?
When anyone desires to exercise a right then the person must also accept there are
obligations.
5
Hence regulations as to the storage, handling and usage of a firearm should be deemed to
be appropriate where it provides for what is locally required.
Therefore, while a person may have the right to own a firearm, the Parliament rightfully
10 could legislate to have the usage, carrying, etc made subject to conditions.
Where there is a constitutional right, implied or otherwise, that a person may bear arms to
defend himself then I view one cannot limit the usage of a weapon to be some small
handgun, a tank, or a warplane, as depending what your personal conditions are you may
15 need one or another, without having any intention to use it against other civilians.
The Supreme Court (USA) has extensively decided cases regarding infringements of
RELIGION and I for one admire the Courts numerous judgments I read. If the same kind of
logic was used regarding the right to bear arms, then I view likewise both parliamentarians
20 and civilians should accept this kind of reasoning.
I for one do not desire to use a weapon, do not like them being used, but that are my
personal views, and I recognise others have total opposite views. They have their right on
their opinion as much as I have and as such I view that the concentration should not be as to
25 how to make inroads to the rights of others, but rather how can we facilitate the rights of
others without that our own rights (including that of personal safety, as not to be held up by
some crazy gunman) jeopardised needlessly.
In particular those of the law enforcement who are risking their lives daily to protect
30 innocent citizens of harm they must not unduly be jeopardised in their law enforcement
positions because inappropriate regulations allow anyone to obtain a weapon.
While many people argue about the right of freedom of religion, the right to bear arms, few
do actually concentrate on the issue of right of freedom of travel, even so this likewise was
35 protected by old English law.
Not to many people argue that their right to travel is denied where they must first have a
driving licence to drive a motor vehicle, where as no kind of driving licence existed to drive
a cart-and-wagon. As such, somehow we have accepted inroads to our guaranteed freedoms
40 because society allowed for this where as in regard of weapons we may have different
positions pending the local society we reside in.
In my view, the right to legislate that a person should not be allowed to bear arms cannot be
justified on a court decision, as if the freedom to bear arms is guaranteed then I view not a
45 court in the land could possible make an order contrary to it.
We therefore may have to look at the constitutional framework as to what was existing at
the time each constitution was created and if the conditions then existed that a Court could
actually have denied a person to bear arms. If in history it can be shown that certain persons
50 were denied by the local authorities to bear arms, then it must be accepted that the
Constitution albeit if it provides for the right to bear arms then was created upon the
understanding that such implied freedom was at all times deemed to be subject to court
judicial decisions and or legislative powers.
As a "constitutionalist" I find it laughable how judges, despite their extensive legal training,
can come up with such utter and sheer nonsense such as McHugh J did with his statement ;
5
QUOTE
But Parliament - some people would regard it as regrettable - can, in effect, do what it likes.
As it is said, some authorities could legislate to have every blue-eyed baby killed if it
10 wanted to.
END QUOTE
As no such constitutional system operates that would allow the parliament to enact such
laws.
15
And there I have to come back upon the other quotation;
QUOTE
McHUGH J: I understand that and persons who have not had full legal training often think
20 of Magna Carta and the Bill of Rights as fundamental documents which control
governments, but they do not.
END QUOTE
Lawyers are being trained in legal studies by other lawyers and as such are brainwashed far
25 to often that some LEGAL FICTION is LEGAL REALITY.
As I exposed in my book published on 30 September 2003
INSPECTOR-RIKATI® on CITIZENSHIP
30
A book on CD about Australians unduly harmed.
ISBN 0-9580569-6-X (prior to 1-1-2007) ISBN 978-0-9580569-6-0
35 There is no constitutional powers for the Commonwealth of Australia to define/declare

"citizenship" as Australians are constitutionally "subjects of the British Crown".
Citizenship is a "POLITICAL POSITION" of rights, including franchise, and has
absolutely nothing to do with "nationality" yet the High Court of Australia goes on as if it is
a nationality.
40
In court, on 19 July 2006, I defeated the Federal Government lawyers also on this matter.
Hence, having has a legal study and having obtained law degrees in itself will not prove
you are not brainwashed by LEGAL FICTION but more then likely you are.
45
Hence, the work as a constitutionalist is to expose this.
Only when we are dealing with LEGAL REALITY and have appropriately explored the
constitutional basis upon which constitutional rights, implied or otherwise, were provided
50 for in the constitution can we commence to address the issues such as the right to bear
arms, etc.

And to make clear, no Parliament in the Commonwealth of Australia has any legislative
powers to allow the killing of blue-eyed babies or for such kind of nonsense, as none of the
State constitutions could allow for such legislative nonsense as they are all bound to make
laws for "the peace, order, and good government", even so judges likewise fails to
5 recognise this constitutional limitation.
As the Framers of the Constitution (Australia) made clear the Constitution was the "new
Magna Carta".
END QUOTE 070520 posting
10
The danger is that if some fanatical religion were to come to power in Australia it could in fact
rely upon these and other stupid and irresponsible statements of the High Court of Australia and
turn this Commonwealth of Australia into some murderous regime, to pursue “ethnic cleansing”
and fund their religious schools at taxpayers expenses. Whatever may suit to today for the so-
15 called Judeo-Christians may tomorrow suit a other fanatical religion to achieve precisely the
opposite! This is what we should keep in mind, and why the Framers of the Constitution so much
sought to prevent this kind of religious war to exist in the Commonwealth of Australia.
END QUOTE Chapter 000D HAVE EVERY BLUE-EYED BABY KILLED
.
20 QUOTE Chapter 007A The Great Deception
Chapter 007A The Great Deception
* Gary, “The Great Deception” by whom?
25 **#** INSPECTOR-RIKATI®, just read the Chapter 034T of the book (published on 17-3-
2007);
INSPECTOR-RIKATI® on the battle SCHOREL-HLAVKA v BLACKSHIRTS

For the quest of JUSTICE, in different ways. Book on CD.
30 ISBN 978-0-9580569-4-6 was ISBN 0-9751760-4-3
QUOTE Chapter 034T

Gary, The Great Deception?
35 INSPECTOR-RIKATI®, this document also sets out how the judges of the High Court of
Australia are deceiving us as to the application of the Constitution! It is to be read in conjunction
with other documents such as “Is our Constitution safe”, “The Constitution is a PERPETUAL
LEASE”, etc.
Anyhow, I quote below the document “The Great Deception”;
40
The Great Deception
QUOTE
I cannot find any excuse whatsoever that judges of the High Court of Australia would
45 divert totally from the legal principles that are embedded in the Constitution.
END QUOTE
In my 2-8-2003 correspondence, published previously in my book (30 September 2003);
50 INSPECTOR-RIKATI® on CITIZENSHIP
ISBN 978-0-9580569-6-0 was ISBN 0-9580569-6-X
I included the following, in regard of the issue of the detention of David Hicks;
QUOTE
5
http://store.yahoo.com/4crests/magnacarta.html
When representatives of the young republic of the United States gathered to draft a
constitution, they turned to the legal system they knew and admired--English common law
as evolved from Magna Carta. The conceptual debt to the great charter is particularly
10 obvious: the American Constitution is "the Supreme Law of the Land," just as the rights
granted by Magna Carta were not to be arbitrarily canceled by subsequent English laws.
This heritage is most clearly apparent in our Bill of Rights. The fifth amendment guarantees
15 No person shall . . . be deprived of life, liberty, or property, without due process of law and
the sixth states
. . . the accused shall enjoy the right to a speedy and public trial, by an impartial jury.
Written 575 years earlier, Magna Carta declares
20
No freeman shall be taken, imprisoned, . . . or in any other way destroyed . . . except by the
lawful judgment of his peers, or by the law of the land. To no one will we sell, to none will
we deny or delay, right or justice. In 1957 the American Bar Association acknowledged the
debt American law and constitutionalism had to Magna Carta and English common law by
25 erecting a monument at Runnymede. Yet, as close as Magna Carta and American concepts
of liberty are, they remain distinct. Magna Carta is a charter of ancient liberties guaranteed
by a king to his subjects; the Constitution of the United States is the establishment of a
government by and for "We the People."
30 Magna Carta
(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or
outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with
force against him, or send others to do so, except by the lawful judgement of his equals or by
the law of the land.
35
(40) To no one will we sell, to no one deny or delay right or justice.
(45) We will appoint as justices, constables, sheriffs, or other officials, only men that know
the law of the realm and are minded to keep it well.
40
(49) We will at once return all hostages and charters delivered up to us by Englishmen as
security for peace or for loyal service.
(51) As soon as peace is restored, we will remove from the kingdom all the foreign
45 knights, bowmen, their attendants, and the mercenaries that have come to it, to its
harm, with horses and arms.
(61) SINCE WE HAVE GRANTED ALL THESE THINGS for God, for the better ordering
of our kingdom, and to allay the discord that has arisen between us and our barons, and since
50 we desire that they shall be enjoyed in their entirety, with lasting strength, for ever, we give
and grant to the barons the following security:
It is clear that the above stated applies “forever”.
END QUOTE
5 Since then the US Supreme Court handed down its decision that the Magna Charta does apply
to the US Constitution.
Lets now consider what the High Court of Australia stated in;
Transcript of High Court Appeal
10 Essenberg v The Queen B55/1999 (22 June 2000)
IN THE HIGH COURT OF AUSTRALIA
Essenberg v The Queen B55/1999 (22 June 2000)

McHUGH J: But is not the problem you face that the Magna Carta and the Bill of
15 Rights of 1688 are not documents binding on Australian legislatures in the way the
Constitution is binding on those legislatures? Any legislature acting within the powers
allotted to it by the Constitution is entitled to legislate in total disregard of the Magna Carta
and the Bill of Rights, as is the United Kingdom Parliament. Take the situation in Northern
Ireland. They abolished trial by jury in Northern Ireland. If you go back to Magna Carta
20 which, I suppose, is really the heart of your argument, it is really more a statement of
political ideals. They are not constitutional documents in the sense that the Australian
Constitution and the United States Constitution are.
Well, the US Supreme Court has (since the publication of my book on 30-9-2003) clearly ruled
25 that the Magna Charta is applicable to the US constitution.
Now, lets see what the Framers of the Constitution stated during the Constitution Convention
Debates;
HANSARD 8-2-1898 Constitution Convention Debates (Official Record of the Debates of

30 the National Australasian Convention)
Mr. OCONNOR.-The amendment will insure proper administration of the laws, and
afford their protection to every citizen.
Mr. SYMON.-That is insured already.
Mr. OCONNOR.-In what way?
35 Mr. SYMON.-Under the various state Constitutions.
Mr. OCONNOR.-Yes. We are now dealing with the prohibition against the
alteration of these Constitutions. We are dealing with a provision which will prevent
the alteration of these Constitutions in the direction of depriving any citizen of his life,
liberty, or property without due process of law. Because if this provision in the
40 Constitution is carried it will not be in the power of any state to pass a law to amend its
Constitution to do that. It is a declaration of liberty and freedom in our dealing with
citizens of the Commonwealth. Not only can there be no harm in placing it in the
Constitution, but it is also necessary for the protection of the liberty of everybody who
lives within the limits of any State.
45 Mr. SYMON.-Have we not that under-Magna Charta.
Mr. OCONNOR.-There is nothing that would prevent a repeal of Magna Charta by

any state if it chose to do so. Let us suppose that there were any particular class of
offences, or particular class of persons who, at any time, happened to be the subjects
of some wild impulse on the part of a majority of the community, and unjust laws
were passed-
Mr. SYMON.-Has anything ever happened that would Justify such a proposition?
Mr. OCONNOR.-Yes, they are matters of history in these colonies which it is not
5 necessary to refer to.
Mr. SYMON.-Would it not require an amendment of the Constitution to repeal Magna

Charta?
Mr. OCONNOR.-What Constitution?
Mr. SYMON.-This Constitution. Do you think Magna Charta would be repealed by

10 an Act of the Federal Parliament?
Mr. OCONNOR.-I do not think so, and I did not say so. But I say that, under the
Constitution of the states, as we are dealing with the Constitution, a State might enact
any laws which it thought fit, and even if those laws amounted to a repeal of Magna
Charta they could be carried. I admit we are only dealing with a possibility, but at the
15 same time it is a possibility which if it eventuated, as it might, would be very
disastrous, and there is no reason why we should not prevent it.
[start page 684]
Mr. FRASER.-We might provide a safe-guard, at any rate.

Mr. GLYNN.-I am now speaking of the English law. It has been somewhat modified in
the Straits Settlements, and in one or two other parts of the empire, I believe, by giving a
right of action for tort in certain cases, but I do not think that this extended right of action
has ever been given in any of the colonies. Conditions justifying actions for damages
25 against the Crown, however, are almost as frequent as actions for breach of contract. In
Canada a man sued the Crown for damages received in connexion with a railway accident,
but he was debarred of remedy there, although he suffered serious injury, because of some
defect in the railway laws not conceding this right. The position has been laid down in
regard to the Queen in the case I have already mentioned, that-
30 Where the land, or goods, or money, of a subject have found their way into the possession
of the Crown, and the purpose of the petition is to obtain restitution, or if restitution cannot
be obtained, compensation in money; or when a claim arises out of a contract, as for goods
supplied to the Crown or to the public service-the Crown is bound to refer a petition of
right to the courts for decision, because it is provided by Magna Charta that justice
35 cannot be denied, sold, or delayed. By this action, similar rights of action are given to the
subject against the Crown in cases in which the subject can maintain a claim against
another subject.

Mr. DEAKIN.-
. In this Constitution, although much is written much remains unwritten,

45 And
Mr. DEAKIN.-
5 a charter of peace-of peace, order, and good government for the whole of the peoples
Mr. SYMON (South Australia).-I wish to say one word or two before we part. I do not
intend to enter into any detailed examination of, or any elaborate apology for, the
Constitution which we have been engaged in framing. But, sir, no man can remain
10 unmoved upon this momentous occasion. 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
15 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.
Again;
the Crown is bound to refer a petition of right to the courts for decision, because it is
20 provided by Magna Charta that justice cannot be denied, sold, or delayed.
Therefore it must be clear that the Framers of the Constitution held that the Magna Charta
applied to the Constitution and it is not for the judges to then seek to amend the Constitution by
their own judgment to deny this to be applicable.
25
As much as the Magna Charta is applicable likewise so the Bill of Rights.
There is however another disturbing element to what the judges stated;
30 Essenberg v The Queen B55/1999 (22 June 2000)

GUMMOW J: Now these words, "for peace, order and good government" are words of
expansion, not contraction, you see - they are not words of limitation.
McHUGH J: They do not limit the powers. In fact they arguably have no legal effect
35 whatever, and that is the doctrine of this Court. We do not make a decision as to whether
the law is for the peace, for the order, for the good government. It is assumed that if
Parliament makes it, it is, and the real question is, is it a law with the same respect to trade
and commerce in other countries or whatever the relevant law of Parliament relies on, but
this Court has never attempted to say that a law, on the subject of trade and commerce,
40 for example, is not "for peace, order and good government". It is, in effect, a
parliamentary expression rather than a legal expression. It does not limit Parliament's
power; it is said to expand them.
MR ESSENBERG: I am not really sure I understand that.
45 Now lets see what the Framers of the Constitution stated, as set out more extensive in the
document “for the peace order and good government-1-Hansard.doc” in Chapter 034O

50 Sir SAMUEL GRIFFITH: I agree that these words appear rather startling. [start page
559] They are taken from the Federal Council Act of Australasia, and were inserted by
the imperial authorities after consideration and in substitution for more limited words that
were proposed by the Convention that met here in 1883. Finding those words there, and
considering that the powers of the federal parliament are only to make laws for the peace,
order, and good government of the commonwealth, it was thought perfectly safe to adopt
5 them.
Mr. BAKER: Do I understand that if a ship leaves one of the Australian colonies for
a British port, say London, having a British register, until she actually arrives in
Great Britain, the laws of the commonwealth are binding upon her, and not the laws
of Great Britain?
10 Sir SAMUEL GRIFFITH: No; but laws of the commonwealth, limited to laws for
the peace, order, and good government of the commonwealth, will apply to her on her
voyage. For instance, if it was necessary to send a prisoner to England, only such
provisions as are essential for the laws of the commonwealth outside the 3-mile limit
could possibly apply.
15 And
Sir SAMUEL GRIFFITH: If the hon. gentleman will look at the bill he will see that
the only laws which can apply are laws for the peace, order, and good government of
the commonwealth.
20 HANSARD 14-4-1897 Constitution Convention Debates (Official Record of the Debates of

Mr. BARTON:
That was the Convention which had, I think, to be called in consequence of the New
Guinea affair. Sir Samuel went on:
25 Finding those words there, and considering that the powers of the Federal Parliament
are only to make laws for the peace, order, and good government of the
Commonwealth, it was thought perfectly safe to adopt them.
Sir Samuel Griffith's reply to that interjection was;
No; but laws of the Commonwealth, limited to laws for the peace, order, and good
30 government of the Commonwealth, will apply to her on her voyage. For instance, if it was
necessary to send a prisoner to England, only such provisions as are essential for the laws
of the Commonwealth outside the three-mile limit could possibly apply.
That is to say, that the laws of the Commonwealth in respect of the matter cannot possibly
affect any law of the Imperial Parliament with which they may be in conflict, but so far as
35 they are not in conflict they will be applicable to a ship on her voyage for the preservation
of those laws of the Commonwealth which it is necessary to have enforced.

40 Amendment suggested by the House of Assembly of Tasmania:
Omit the words "for the peace, order, and good government of the commonwealth,
lines 3, 4, and 5."
The Hon. E. BARTON (New South Wales)[10.32]: This is an amendment which was
made in the legislature of Tasmania at the instance of the Hon. A.I. Clark. That gentleman
45 has furnished these reasons for the amendment, and, perhaps, in justice to him, I ought to
read them:
These words are copied from the several acts of the Imperial Parliament providing for the
establishment of legislatures in the various Australian colonies, and are perfectly
appropriate when used in reference to the establishment of the legislature which is to
possess plenary legislative powers, and have unlimited jurisdiction on all questions relating
5 to the protection of life and property, and the enforcement of contractual rights of every
kind; but it is very doubtful if they ought to find a place in connection with the definition
and delegation of limited legislative powers which do not include matters relating to the
daily protection of life and property, or to enforcement of private rights and obligations in
general. It is true that they find a place in the 91st section of the British North America Act,
10 which establishes a federal convention for Canada; but the primary object of that act is to
limit the powers and jurisdiction of the provincial legislatures, and to vest the residuum of
legislative authority in the Dominion of Canada in the federal parliament. The words in
question may, therefore, fitly find a place in that act, and they were relied upon in the case
of "The Attorney-General of Canada versus the Attorney-General of Ontario, which was
15 decided by the Privy Council last year[L.R.A.C. 1896] to uphold the act of the Dominion
Parliament, which had been challenged on the ground that it had encroached upon the
domain of the provincial legislatures. That decision, in its effect, appears to me to be, an
argument against the insertion of the words in question in connection with the definition
and delegation of the legislative powers of the parliament of the commonwealth, because
20 they might, in some unforeseen and unexpected controversy, afford ground for an
argument in favour of the jurisdiction of the parliament of the commonwealth in matters
which the several states might claim to be wholly within their own legislative powers. It
cannot be contended that they are required for the purpose of giving the parliament of the
commonwealth full power to legislate with regard to all the subjects mentioned in the sub-
25 sections of section 52; and, if they are not required for that purpose, they must inevitably
encourage the contention that they are inserted [start page 1037] for some additional
purpose. But, if their insertion in not intended to add in any way to the powers of
parliament, in relation to the matters mentioned in the sub-sections of section 52, then they
violate the canon of drafting, which requires that no unnecessary words should be used in
30 giving expression to the intention of the legislature. They are very properly inserted in
section 53, because that section confers upon the parliament of the commonwealth plenary
and exclusive powers in regard to the several matters mentioned in the sub-section of that
section. But their presence in section 52 tends to create a resemblance in the scope of the
powers conferred by the two sections, whereas it would be much more desirable to make
35 the difference in the purport of each section as apparent and emphatic as possible.
I have read these reasons through very carefully, and I have been unable to discover
that any of the evils which my hon. and learned friend, Mr. Clark, fears may be
expected from leaving these words as they are. The powers are powers of legislation
for the peace, order, and good government of the commonwealth in respect of the
40 matters specified. No construction in the world could confer any powers beyond the
ambit of those specified.
The Hon. N.E. LEWIS (Tasmania)[10.35]: I should like to submit for the consideration of
the leader of the Convention the question whether the words which the legislature of
Tasmania have proposed to omit might not raise the question whether legislation of the
45 federal parliament was in every instance for the peace, order, and good government of
the commonwealth. Take, for instance, navigation laws. Might it not be contended that
certain navigation laws were not for the peace, order, and good government of the
commonwealth, and might there not be litigation upon the point? We are giving very full
powers to the parliament of the commonwealth, and might we not very well leave it to
50 them to decide whether their legislation was for the peace, order, and good

government of the commonwealth? Surely that is sufficient, without our saying
definitely that their legislation should be for the peace, order, and good government
of the commonwealth. I hope the leader of the Convention will give the matter full
consideration with a view to seeing whether these words are not surplusage, and whether,
5 therefore, they had better not be left out of the bill altogether.
The Hon. E. BARTON: The suggestion of the hon. member will be considered by the
Drafting Committee.
Amendment negatived.
10 Again;
Surely that is sufficient, without our saying definitely that their legislation should be
for the peace, order, and good government
HANSARD 13x-1898 Constitution Convention Debates (Official Record of the Debates of

Mr. ISAACS.-The Parliament has by clause 52 full power and authority to make
laws for the peace, order, and good government of the Commonwealth with respect to
a large number of matters that are set out. This is a power that is without limitation.
20 It should be understood that while it was stated

This is a power that is without limitation.
It is within the limits of being for for the peace, order, and good government!
As such as long as it is within the scope of “for the peace, order, and good government” the
legislative powers is unlimited.
25
Mr. DEAKIN.-
30
. In this Constitution, although much is written much remains unwritten,
And
Mr. DEAKIN.-
35 liberty-the liberty and the means to achieve all to which men in these days can
a charter of peace-of peace, order, and good government for the whole of the peoples
Mr. SYMON (South Australia).-I wish to say one word or two before we part. I do not
40 intend to enter into any detailed examination of, or any elaborate apology for, the
Constitution which we have been engaged in framing. But, sir, no man can remain
unmoved upon this momentous occasion. We who are assembled in this Convention are
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
45 can conceive of nothing of greater magnitude in the whole history of the peoples of the
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.

In my view judges such as Gummow J and McHugh J ought to have a retraining as to what is
constitutionally appropriate as I do not believe they have a clue what is applicable. Again, the
document “for the peace order and good government-1-Hansard.doc” has extensively set out
how it was being used, including some opposition and a submission from Tasmania to have it
5 taken out as there should be an unlimited power, but it was made clear, that unlimited power
would exist within the confines of laws being for the “order, peace and good government” and
in the end this was retained in the Constitution! I for one wonder how on earth judges of the
High Court of Australia do not comprehend this!
10 I cannot find any excuse whatsoever that judges of the High Court of Australia would divert
totally from the legal principles that are embedded in the Constitution.
END QUOTE Chapter
* Do you view that it is , so to say, no longer the GUARDIAN OF THE CONSTITUTION?
15 **#** In my view it has lost the plot. We are in a really bad situation, as while Section 64 of the
Constitution permits the Governor-General to appoint anyone (even not a Member of Parliament,
for up to three months) to be a Minister of State the Framers of the Constitution intended that
only Members of the House of Representatives would be permanent Ministers of State. There is a
clear conflict of interest when a Senator representing State interest instead represents the
20 Government of the Day. And we saw this with what I consider the infamous phone call by
Senator Boswell conceding to John Howard control of the Senate saying “Prime Minister you
have control of the Senate”. I view no one could more be a traitor to the Constitution in that
regard as he did. By it destroying the very constitutional set up to have one House representing
the states and one representing the Commonwealth as whole. In my view, there is a conflict of
25 interest for any Senator to be a Minister of State. And, I view the government by this using it
numbers to deny many Members of parliament a copy of the Bill before the House to be voted
upon, and also allowing them sufficient time to consider and debate the issue is no less then
TERRORISM, and the High Court of Australia despite of this having shown not to have
considered this in its judgment completely failed to be a true GUARDIAN OF THE
30 CONSTITUTION. In my view it merely RUBBERSTAMPS what the Federal Government
desires under the pretext of considering the matter before the Court, it became as much part of
this crime of TERRORISM as any other criminal does where perhaps not pulling the trigger in a
hold-up nevertheless is an accomplish by driving the get away car or cause the criminal to elude
the police by harbouring the criminal. In my view, we should have specialist judges who only
35 deal with constitutional issues in the High Court of Australia, as in my view the High Court of
Australia simply is not up to the task to appropriately deal with constitutional issues in its current
set up. For this also the urgent need for the creation of an OFFICE OF THE GUARDIAN, as I
for one cannot see how the High Court of Australia otherwise will ever be competent to fulfill its
task to be a GUARDIAN OF THE CONSTITUTION, where it proved already not able to do
40 so!
* Are you aware I asked just one question and you respond with about 7 pages answer! And it
wasn’t even fully about it all such as ULTRA VIRES, as I understood this Chapter was going to
be about!
45
**#** Well it was regarding many issues but there is more, why not then go to the next Chapter,
shall we?
END QUOTE Chapter 007A The Great Deception
.
50 The problem we have therefore is that the High Court of Australia is not interpreting the
Constitution as to the intentions of the Framers of the constitution but whatever tit desires to
make out of it pending contemporary views of the judges, and this is a very dangerous practice,

as no citizen then will known what the constitution really stands for because the moment another
judge is appointed the constitution can be altered to its meaning and application.
.
5 QUOTE Chapter 000H Tax legislation-De Facto Appropriation Bills

Chapter 000H Tax legislation-De Facto Appropriation Bills
* Gary, do you mean that Taxation provisions operate as DE Facto Appropriation Bills but used
in a hideous manner?
10
**#** INSPECTOR-RIKATI®, the only way the Federal Government can access Consolidated
Revenue is the usage of Appropriation bills to be passed by both Houses of parliament, however
we saw Treasurer Peter Costello allowing an 2½ million dollar tax concession to a Catholic
Church in Melbourne, which constitute in my view being monies taken from Consolidated
15 Revenue and for this a Appropriation Bill is required.
* Why?
**#** Because all monies due to go into Consolidated Revenue must be accounted for and
20 cannot be spend in any way without an Appropriation bill.
* Surely, they didn’t pay the tax and so not due having had to pay into Consolidated Revenue?
**#** That is the wrong way to look at it. The monies were due to be paid was it not for the tax
25 concession and such kind of tax concessions breach the total prohibition of religious funding.
If the Government can manipulate its powers in such manner then why can it not then say give
political parties, say $100 million dollars in tax benefits to spend as they like?
* Careful they might hear you and just implement this scheme!
30
**#** The issue is that no moneys should be taken from Consolidated Revenue in a backdoor
manner.
* Surely everyone somehow has a tax concession?

35
**#** The Framers of the Constitution made clear that all people have to pay the same level of
tax earning the same. Hence, to apply tax concessions means that those who can manipulate the
system pay less tax and other more, as to make up for the short fall. When the Commissioner for
Taxation litigate in Court against a person for back taxes, he is not arguing of tax already paid,
40 but tax he deemed applicable. It is the taxation applicable that can be deemed part of
Consolidated Revenue as it is a Debt to Consolidated Revenue. No constitutional authority exist
for tax concessions if they are not provided by way of Appropriation bills. What we have is a De
Facto spending spree where people can get a tax payments even so they may not have paid any
tax.
45 Now, how on earth can anyone get a tax refund if not having paid any tax, unless the monies
comes from consolidated Revenue.
Hansard Constitution Convention Debates

start page 1020] I think that we ought to be satisfied on these points, and satisfied that
50 if we leave the clause as it now stands there will, at any rate, be some proviso inserted
which will safeguard the states in the carrying out of any of their state laws over
which the states are to be supreme even under federation.
* You mean the baby bonus of family tax payments?
**#** Correct, if they are payments in one way or another they must be subjected to
5 Appropriation Bills. Not a single part of the Commonwealth can escape the same taxation level
to be applied.
National Australasian Convention) (Chapter 33 of the CD)
QUOTE
10 Mr. ISAACS (Victoria).-What I am going to say may be a little out of order, but I would
like to draw the Drafting Committee's attention to the fact that in clause 52, sub-section (2),
there has been [start page 1856] a considerable change. Two matters in that sub-section
seem to me to deserve attention. First, it is provided that all taxation shall be uniform
throughout the Commonwealth. That means direct as well as indirect taxation, and
15 the object I apprehend is that there shall be no discrimination between the states; that
an income tax or land tax shall not be made higher in one state than in another. I
should like the Drafting Committee to consider whether saying the tax shall be uniform
would not prevent a graduated tax of any kind? A tax is said to be uniform that falls with
the same weight on the same class of property, wherever it is found. It affects all kinds of
20 direct taxation. I am extremely afraid, that if we are not very careful, we shall get into a
difficulty. It might not touch the question of exemption; but any direct tax sought to
be imposed might be held to be unconstitutional, or, in other words, illegal, if it were
not absolutely uniform.
END QUOTE
25 Again;
QUOTE
It might not touch the question of exemption; but any direct tax sought to be imposed
might be held to be unconstitutional, or, in other words, illegal, if it were not
absolutely uniform.
30 END QUOTE
And again;
QUOTE
35 absolutely uniform.
END QUOTE
Well, tell this to the Commissioner for Taxation to go after all those people having tax free
incomes, such as the former Minister of Defence Peter Reith, the former chairman of AWA, and
others. Somehow their normal constitutional taxable income are excluded unconstitutionally
40 from being taxed.
And there are numerous other unconstitutional incidents occurring.
END QUOTE Chapter 000H Tax legislation-De Facto Appropriation Bills
.
THE PROBLEM THEREBY IS THAT CITIZENS ARE UNDULY CAUSED TO PAY
45 FOR LIGIATION, WHEN LOOSING A CASE, REGARDING CONSTITUTIONAL
MATTERS REGARDLESS THAT THIS IS UNCONSTITUTIONAL!
.
50 QUOTE Mr. SOLOMON.-
We shall not only look to the Federal Judiciary for the protection of our interests, but
also for the just interpretation of the Constitution:
END QUOTE
.
5 QUOTE Mr. SOLOMON.-
Most of us, when we were candidates for election to the Federal Convention, placed
great stress upon it as affording a means of bringing justice within easy reach of the
poor man.
END QUOTE
10 .
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.
15 END QUOTE
.
QUOTE
20 [13]In the last analysis, we observe, even statutory classifications which affect a
"fundamental right" are valid when "shown to be necessary to promote a compelling
governmental interest." [FN34] The parent cannot assert an absolute freedom to
remove his child from all schooling, or to send him to a school where the curriculum
includes not only mathematics but also the desirability and techniques of immediate
25 violent overthrow of the government. All states may require that children receive
some education and have some power to regulate what they are taught consistently
with the public welfare.
END QUOTE
.
QUOTE
2. Differences From the Church Exemption Issue
Intervenors further assert that the right to tax exemption and deduction stands on the same
35 plane for educational and religious institutions. They rely on Walz v. Tax Commission, 397
U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970). And they claim that the logic of the IRS
position would compel the disallowance of the exemptions granted to private religious
schools.
Walz upheld state tax exemptions for real property owned by churches and used for
40 religious worship. It focused on the special constitutional features inhering in the First
Amendment's provision: "Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof." In America political union was
dependent on an express toleration of religious liberty and religious differences.
[FN39] The free exercise of religion was to be protected not only by condemning its
45 prohibition but by avoiding government support for any involvement with religion
tantamount to "establishment." Walz discussed the issue of "entanglement," and as the
Court noted in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971):
FN39. The local churches in the American colonies exemplified not only variety
but a parity of prestige-with the most prominent families likely to be Anglican in
50 Virginia, Separatist in Plymouth, Quaker in Pennsylvania, Roman Catholic in
Maryland, etc.
"That [Walz] holding, however, tended to confine rather than enlarge the
area of permissible state involvement with religious institutions by calling for
close scrutiny of the degree of entanglement involved in the relationship."
All the opinions in Walz analyzed tax exemptions as providing an economic benefit,-
5 "that exemptions do not differ from subsidies as an economic matter." (Harlan, J., 397
U.S. at 699, 90 S.Ct. at 1427). What the Chief Justice emphasized was that exemptions
provide an "indirect" and "passive" support, and hence avoid the kind of excessive
involvement or "entanglement" that bespeaks "establishment" of religion. It is in this
context that Chief Justice Burger speaks (p. 669, 90 S.Ct. p. 1412) of the "benevolent
10 neutrality" necessary to "permit religious exercise to exist without *1169 sponsorship and
without interference," and describes tax exemption as a salutary means of preserving "the
autonomy and freedom of religious bodies while avoiding any semblance of established
religion."
[17]Tax exemption benefit is only a "minimal and remote involvement" (p. 676, 90 S.Ct.
15 1409) when compared to the kind of identification and support of religion that is prohibited
under the Establishment clause. But governmental and constitutional interest of
avoiding racial discrimination in educational institutions embraces the interest of
avoiding even the "indirect economic benefit" of a tax exemption. [FN40]
FN40. Compare Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91

20 L.Ed. 711 (1947) with
Griffin v. County School Board, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 236
(1964). Everson upheld, as serving a valid public purpose, a state program of
providing compensation to parents for the cost of busing children to their schools,
even where the schools were religious. Griffin held unconstitutional a state
25 subsidy to children attending segregated private schools.
The special constitutional provisions ensuring freedom of religion also ensure freedom of
religious schools, with policies restricted in furtherance of religious purpose. Section 503 of
the Model Anti-Discrimination Act, supra note 37, permits religious educational
institutions "to limit admission or give preference to applicants of the same religion." We
30 are not now called upon to consider the hypothetical inquiry whether tax-exemption or tax-
deduction status may be available to a religious school that practices acts of racial
restriction because of the requirements of the religion. Such a problem may never arise;
and if it ever does arise, it will have to be considered in the light of the particular facts
and issue presented, and in light of the established rule, see Mormon Church v.
35 United States, 136 U.S. 1, 10 S.Ct. 792, 34 L.Ed. 481 (1890), that the law may prohibit
an individual from taking certain actions even though his religion commands or
prescribes them.
***
The case at bar involves a deduction given to reduce the tax burden of donors, a
40 meaningful, though passive, matching grant, that would support a segregated school
pattern if made available to racially segregated private schools. [FN41] We think the
Government has declined to provide support for, and in all likelihood would be
constitutionally prohibited from providing tax- exemption-and-deduction support for,
educational institutions promoting racial segregation.

FN41. "[T]he tax benefits under the Internal Revenue Code mean a substantial
and significant support by the Government to the segregated private school
pattern.
*****
5 "The support which is significant in the context of this controversy is not the
exemption of the schools from taxes laid on their income, but rather the
deductions from income tax available to the individual, and corporations, making
contributions supporting the school."
Green v. Kennedy, supra, 309 F.Supp. at 1134.

10 END QUOTE
.
Again;
15 QUOTE
The case at bar involves a deduction given to reduce the tax burden of donors, a
meaningful, though passive, matching grant, that would support a segregated school
pattern if made available to racially segregated private schools. [FN41] We think the
Government has declined to provide support for, and in all likelihood would be
20 constitutionally prohibited from providing tax- exemption-and-deduction support for,
educational institutions promoting racial segregation.
END QUOTE
.
What is clear is that any tax concession as referred to “The case at bar involves a deduction
25 given to reduce the tax burden of donors, a meaningful, though passive, matching grant”
and also “We think the Government has declined to provide support for, and in all
likelihood would be constitutionally prohibited from providing tax- exemption-and-
deduction support for, educational institutions promoting” unlawful conduct underlines that
any form of grant must be ensuring that no unlawful acts are perpetrated by those who are
30 benefiting of such direct or indirect grants. Hence, if any NOT PROFIT (NOT-FOR-PROFIT)
registered entity conducts its affairs in an unlawful manner, such as to procure abortions
against the wishes of the pregnant woman, prevents the socializing or otherwise members
contacts with family members, use any kind of punishment which may be regarded as inhumane,
inappropriate or simply not within compliance of ordinary NATURAL JUSTICE standards, etc,
35 then the entity must be deemed to have forgone the status of being a NOT PROFIT (NOT-
FOR-PROFIT) registered entity and should hence forth lose any special taxation entitlements as
it cannot be held to be in the interest for “PUBLIC PURPOSES”. As such, it doesn’t matter of
the NOT PROFIT (NOT-FOR-PROFIT) registered entity is a religious entity or not as in the
end the issue is if the standards it operates under are those that conform with societies ordinary
40 standards as well as the RULE OF LAW and provide DUE PROCESS OF LAW as well as for
NATURAL JUSTICE.
.
Below I have quoted some media articles as to further address this issue.
.
45 It is ironic that despite the existence of the Federation since 1901 by now there still seems to be
no proper understanding how actually the constitutional frameworks operate.
While the Framers of the constitution provided for a separation of powers between the States and
the POLITICAL UNION called the Commonwealth of Australia, no such separation of powers
include municipal and shire councils as they are regarded part of the “Local government” being

the State governments, whereas the Federal government is deemed to be the “Central
government”.
States are always so to say screaming blue murder not to have sufficient monies in Consolidated
Revenue funds for payments for Appropriation bills but then with the matter of Moorabool Shire
5 Council v Mr Francis James Colosimo as advertised on the VCAT (Victorian Civil and
Administrative Tribunal) there is no letting up in the protracted VEXATIOUS litigation against
Mr Francis James Colosimo, despite from onset there having been OBJECTION TO
JURISDICTION’s.
.
10 I will quote “Chapter 361 –Local Government” which will indicate that despite States having
amended their constitutions to provide for Municipal and local councils to be “Local
Government” constitutionally this is not permissible and hence ULTRA VIRES. Little help
however for a person facing a tirade of litigation no matter how unconstitutional and standing up
for his constitutional and other legal rights and a total lack by the Federal government to stand up
15 for this incursion into Federal jurisdiction, where once an OBJECTION TO JURISDICTION
ids made upon constitutional grounds then a State tribunal has no jurisdiction to even hear and
determine this OBJECTION TO JURISDICTION because it is not a court within the meaning
of Chapter III of the constitution and neither can invoke federal jurisdiction. However, you find it
as a matter of record, that despite of this some 15 hearings already were conducted including 6
20 purported CONTEMPT hearings, despite that Her Honour Harbision J at no time during any of
the hearings bothered to formally charge Mr Francis James Colosimo of any offence. After all he
had lawfully erected a “shed” and hardly could have been held legally accountable for erecting
lawfully a “shed”! Despite ongoing advising VCAT Senior member Ms Preuss that the
protracted VEXATIOUS litigation caused EMOTIONAl, MENTAL and FINANCIAL harm
25 Ms Preuss so to say couldn’t give a hood and continued to adjourn matters repeatly, and while
Ms Preuss even went as far on 2 September 2009, when Mr Francis James Colosimo verbally
explained to her that the litigation was preventing him to earn a normal income, VCAT Senior
member Ms Preuss then lashed out as I understood it to be “Well you are the one in breach of
legal provisions.” Yet, despite this verbal attack she has been unable to produce any evidence
30 that indeed Mr Francis James Colosimo acted in defiance of legislative provisions to erect his
“shed”, which Moorabool Shire Council a mere 5 days before it commenced to litigate against
Mr Francis James Colosimo officially declared that it was erected within the legislative
provisions. As a matter of fact the penalty Infringement Act 2006 doesn’t even provide
jurisdiction to VCAT anyhow.
35 What we now have is that because of what I consider malicious conduct by VCAT Senior
Member ms Preuss to act appropriately and follow the DUE PROCESS OF LAW and seemingly
seems to be upset that I expose this she even took it upon herself to personally attack my person
to represent Mr Francis James Colosimo as if this is going to address the issue for which Her
Honour Harbison J on 12 June 2008 requested for the Office of the Public Advocate to
40 investigate if Mr Francis James Colosimo acted WILLFULLY IN CONTEMPT. Well the office
of the Public Advocate for so far as I am aware of couldn’t bother to deal with this and, so to say,
so went his own marry way to pursue administration orders against Mr Francis James Colosimo
but only in relation to Moorabool Shire Council. It is like having a woman so to say being half
pregnant. Yet, VCAT Senior member Ms Preuss since commencing the hearing on 27 January
45 2009 not one did deal with the original issue of the investigation and all seems to be doing is to
protract the VEXATIOUS hearings and having been made well aware time and time again that
due to the litigation Mr Francis James Colosimo cannot earn sufficient income to pay his bills.
So, about 14 months later the bank now seems to foreclose the property concerned awhile
MVCAT Senior member Ms Preuss still after some 5 hearing still has to commence dealing with
50 the OBJECTION TO JURISDICTION that was before her on 27 January 2009 and let alone
having attended to the core issue as to any investigation as to m Mr Francis James Colosimo
conduct where obviously any investigation in any event would be pointless because where Her
Honour Harbison J never had bothered to formally charge Mr Francis James Colosimo then there
hardly can be any WILLFUL conduct either of CONTEMPT. Still, Victorian Legal Aid advised
for Mr Francis James Colosimo to purge his contempt.
Moment purge CONTEMPT without even having been charged for it?
5 .
What we now have is that Mr Francis James Colosimo will soon or later be depending on
Commonwealth of Australia Social Security funds where clearly this could have been avoided if
just VCAT from onset had followed the RULE OF LAW and DUE PROCESS OF LAW.
.
10 QUOTE In the marriage of Smith v Saywell (1980) Fam LR 6 245 at 258
Where a case pending in a federal court other than the HIGH COURT or in a court of a state
or territory involves a matter arising under the Constitution involving its interpretation, it is
the duty of the court not to proceed in the cause unless and until the court is satisfied that
notice of the cause, specifying the nature of the matter has been given to the Attorney
15 General of the commonwealth and (a) if the cause is pending in a court of a state - to the
Attorney General of that state; or (b) if the cause is pending in a Federal court and was
initiated in a state - to the Attorney General of that state, and for a reasonable time elapsed
since the giving of the notice for consideration by that Attorney General or by those
Attorney General, of the question of intervention in the proceedings or the removal of the
20 cause to the HIGH COURT.
END QUOTE
.
What we find however is a total disregard to this rule by VCAT and hence a burden upon
taxpayers to fork out I estimate more then $100,000.00 on litigation cost because of what appears
25 to me to be arrogant, obnoxious conduct by VCAT rather then to follow the DUE PROOCESS
OF LAW.
.
For taxation purposes it obviously is an issue that legal aid funds is also squandered on lawyers
who can’t even bother to deal with the very basics and that is first to deal with the core issue
30 what is the precise charge against Mr Francis James Colosimo! After all, this is what I explored
to discover that despite some 6 purported CONTEMPT hearings Her Honour Harbison J simply
had not bothered to formally charge Mr Francis James Colosimo.
What we have however is in totality all this litigation is a sheer misuse and abuse of the legal
processes in that constitutionally municipal and shire councils have no position of being a
35 “government”! As such it’s enforcement of so called by—laws is WITHOUT LEGAL FORCE.
Hence taxation monies is squandered both that of State and Commonwealth Consolidated
Revenue funds unabated!
.
QUOTE Chapter 361 –Local Government
40 Chapter 361 –Local Government
.
* Gerrit, another issue you have addressed, didn’t you?
.
**#** INSPECTOR-RIKATI®, indeed I did see below.
45 .
Jeff McMullen, ABC, DIFFERENCE OF OPINION

Ph. 1800 502 404
Fax 02 8333 3344

.
Re; levels of Government
5 .
Jeff McMullan
.
FEDERAL GOVERNMENT/CENTRALISED GOVERNMENT
10 .
Versus
.
STATE GOVERNMENT/LOCAL GOVERNMENT
.
15 Versus
.
MUNICIPAL COUNILS/LOCAL GOVERNMENT
.
While in today’s language when we refer to “LOCAL GOVERNMENT” we refer to “LOCAL
20 COUNCILS” rather then “MUNICIPAL COUNCILS” constitutionally (considering the
Commonwealth of Australia Constitution Act 1900 (UK) we have a “CENTRALISED
GOVERNMENT” with a “FEDERAL PARLIAMENT” and a “LOCAL GOVERNMENT”
with a “STATE PARLIAMENT”.
When one refers to the Federation and State Governments then “LOCAL GOVERNMENT”
25 refers to State Governments. When we refer to internal State matters then “LOCAL
GOVERNMENT” is “MUNICIPAL COUNCILS” being “LOCAL GOVERNMENTS”.
.
When dealing with the TWO levels of Governments, being Federal and State Governments, then
the de facto third level of Government “MUNICIPAL COUNCILS” is not to be taken as a level
30 of Government.
.
It must be clear that the Commonwealth of Australia has no constitutional powers to alter State
legislative powers/boundaries, etc at its own will. However, States can alter “MUNICIPAL
COUNCILS” boundaries as much as it likes. No referendum is needed for this.
35 Local councils are not true Governments but delegated bodies that act as a Government under the
authority of a State Government. However, State Governments do not act under the Authority of
the Federal Government, rather that the Federal Government acts under the authority of State
Governments.
The Federal Government cannot take anything from the States that the States doesn’t want to
40 give on legislative powers, whereas the States (subject to a Section 123 of the Constitution State
referendum) can and it desire hand over whatever legislative powers it has, to the Federal
Government.
Take for example the issue of “CITIZENSHIP”. Neither the Commonwealth of Australia or
45 “MUNICIPAL COUNCILS” have legislative powers as to declare/define “CITIZENSHIP”. It
is and remains to be a constitutional powers reserved for the State Parliaments. See also Hansard
2-3-1898 Constitution Convention Debates. Hence the Australian Citizenship Act 1948 for so
far it purports to define/declare “CITIZENSHIP” is ULTRA VIRES.
To abolish State governments would mean that such powers would have to be handed over to
50 either a Federal Parliament or to “MUNICIPAL COUNCILS”.
Obviously “MUNICIPAL COUNCILS” could not deal appropriately with this and a Federal
government would not be able to deal with this appropriately. Why you may ask? Because
“CITIZENSHIP” relates to a persons POLITICAL STANDING. To hand “CITIZENSHIP”
over to the Commonwealth of Australia would be basically to vandalise the very protection’s
build in the Commonwealth of Australia Constitution Act 1900 (UK).
This correspondence cannot set out in an elaborate manner all that is relevant to this, but those
5 interested can always read my various books published in the INSPECTOR-RIKATI® series.
The usage of the term “local government” during the Constitution Convention Debates were
in general referring to State Governments, below some examples.
WE EITHER HAVE A CONSTITUTION OR WE DON’T!

10
The Federal Government cannot have it both ways, argue it has constitutional rights to
implement certain legislation and on the other hand ignore constitutional constrains when it
doesn’t suit it.
15 What is badly needed and well overdue is the creation of an OFFICE OF THE GUARDIAN, a
constitutional council, that advises the Government, the People, the Parliament and the Courts as
to constitutional powers and limitations.
Currently there is to much nonsense going on where even judges do not even comprehend
constitutional limits and fancy themselves to amend the Constitution by backdoor manner
20 (judgments) while those politicians in the Parliament know next to nothing as to what is
constitutionally permissible or not.
Lets get realistic and before anyone comes up with what is wrong with any government level let
them first learn what is constitutionally applicable. After all, if they have it wrong from onset and
25 do not comprehend how matters are constitutionally then what are they talking about?
Please note the comments below, including an e-mail to Mr. Kevin Rudd.
DEBATES OF THE CONFERENCES (OFFICIAL RECORD.)

30 .
MONDAY, FEBRUARY 10, 1890.
Mr. DEAKIN.-
I believe, by the Bill which will shortly grant Western Australia the local government which
all Australasia has long wished her, to confine the new colony to the territory south of the
35 26th parallel, while the territory north of that is to be governed by Western Australia under the
control of Ministers in England.
And
Mr. DEAKIN.-
With regard to work which might be better done by a Federal Government than by the
40 separate Governments of the colonies, it is questioned whether, when the Convention comes
to consider all the issues raised (which I do not enter into), it will not be decided that the
larger part of the work should be left to the local Governments. It is argued that public
works, for instance, would be more satisfactorily carried out by the local Governments than
by a Government more removed.
45 And
Mr. DEAKIN.-
But what is clearer is, that the great cable and mail lines between this continent and the old
world would inevitably pass under the control of the Federal Government. There is one land
line already across the continent of Australia, which it might be necessary to hand over to the
Central Government, And there is a cable projected towards North America, which will
greatly affect the interests of the inhabitants of Australasia and the Pacific islands and our
countrymen across the sea.
And
5 Mr. DEAKIN
Leaving these details, which I have only ventured to touch upon in a fragmentary way, and
sympathizing with the strong stand made by Mr. Playford on the supposition that the powers
and privileges of the different local Governments were to be assailed, and being as prepared
as he is to do my utmost in their defence, I believe that we would act idly unless we admitted
10 from the first that in the creation of a Federal Legislature and a Federal Executive we meant
them to be the organs of a Sovereign state-a state which would not be a figment or shadow,
nor exist only on the sufferance of the local Parliaments, but which would draw its authority
straight from the people of the different colonies, obtaining from them the plenary powers to
be exercised by it within certain limits. The great lesson taught by Mr. Bryce in his
15 magnificent work is that the strength of the United States Government lies in this, that
although it is a Federal Government, under which each State of the Union is theoretically and
actually independent in respect to all concerns of local life and legislation, it has
nevertheless sovereign authority in that it is gifted with powers which act directly and
immediately on every citizen of the entire country. It is not dependent on any state for one
20 cent of its revenue, nor upon state officers for any act of administration , nor upon State
Courts for any decision in its favour. Except that the state legislators elect the members of
the Senate there is no connexion between the states and their Central Government. The
Union is not concerned to have their support, nor does it seek their aid for the forces it
maintains. It is a Sovereign state acting directly, without any intermediary, upon the
25 citizens from which it springs. (Hear, hear.) I am glad that view is concurred with. I am glad
to think that we shall see a Sovereign state in Australasia which will be able to act directly
through its judiciary, and in other ways, on every citizen within its borders, and be in every
respect and in all its powers the equal of any state in the world. Were we to aim at crippling,
maiming, or enfeebling the local Legislatures, we would aim at doing something not only
30 wholly unnecessary for our purpose, but something which would actually injure the Federal
Government we are seeking to establish. There should be and must be nothing antagonistic
between a Federal Government supreme in its sphere and local Governments supreme in
their spheres. It is perfectly true that there must be a division of authority, that some of the
powers of the local Governments will have to be transferred to the Federal Government, but
35 the judges of the powers to be given to either body must not be either the local Governments
with their jealousies, or the Central Government with its ambitions. The judgment must come
from those whom both exist only to serve-from the people themselves. So far both the local
and central authorities must be regarded as on the same platform, because as it is in the
national interest that there should be a differentiation of the powers of Government into
40 central and local Governments so in settling that division only national interests ought to
be considered. What we have to study is how to give the central authority all the powers
which can be best exercised by such a body to the distinct advantage of the whole of the
people. Those powers it ought to have; but it is not to be [start page 27] entitled to acquire
them in such a way as would enfeeble the different local Governments, on whose healthy life
45 its successful existence must largely depend. As well might it be attempted to enfeeble
municipal institutions in order to aggrandize Parliament, the fact being that parliamentary
Government depends very much for its smooth and easy working upon the smooth and easy
working of the minor local bodies. There are an infinite number of issues which no
central Parliament could deal with, but which necessarily belong to the local Legislatures,
50 and which they should be able to deal with in the present manner. For my part, I think we
should seek to strengthen the local Legislatures by every possible means. We should, as Mr.
Playford says, leave them every power it is possible for them to exercise in the interests of the
whole community. If more power can be given them for that purpose than is conceded
elsewhere, let it be granted, but let us give the Central Government just as emphatically a
full and unfettered power so far as the interests of the whole people demand it.
5
Mr. PLAYFORD: And that it would be given back to the various local governments in
proportion to the population of their respective colonies. If we consider for a moment that the
10 federal government must have an executive, and will have to provide the necessary payment
for the federal forces, for the federal executive, and for various other matters, we must see that
they will have to derive a revenue in some way or other; and the most difficult question, I
think, which the members of the Convention will find, when they come to deal with it, will be
the adjustment of that financial part of, if I may so call it, the trouble between the federal
15 government on the one hand, and the local governments on the other. It may be necessary
that, in certain instances, we should be paid back by the federal government a proportion of
the money that we, as local governments, derive from customs. The

20 Mr. DEAKIN.-
Now, a few words as to the bounties. The Federal Parliament, representing the federal people,
will be as sensitive to the appeals of the people for assistance as any local Parliament has
been. The great federal industries of Australia-fruit-growing, dairying, agriculture, and
horticulture-will be no less an object of concern to representatives in the Federal Parliament
25 than they have been to representatives in the various local Parliaments indeed, the improved
circumstances and more independent position of the Federal Government will allow them to
deal with the development of these industries with a more liberal hand than the local
Governments can deal with them.
And
30
Mr. TRENWITH.-
We find, within the area of our state Legislatures, that we have local interests continually
presented to Parliament from various parts of the respective states. In Victoria we have a most
complete system of local government, under which particular localities legislate for their
35 local requirements, and manage very largely their local concerns in regard to roads and
bridges, and so forth. They are continually coming to Parliament asking for some special
concessions. Very often these special concessions involve the expenditure of large sums from
the general revenue, but yet we find that whenever these requests are made they are almost
invariably passed with the greatest possible rapidity. Parliament is always inclined to act
40 generously to sections of the community over which it has to govern, and we have a right to
assume that when we have created a Federal Parliament, and local considerations from any
of the states are submitted to it, it will treat them in much the same manner as the state
Parliament treats matters from municipal councils within the area of their government
now.
45 Again;

Parliament is always inclined to act generously to sections of the community over which it has
to govern, and we have a right to assume that when we have created a Federal Parliament, and
local considerations from any of the states are submitted to it, it will treat them in much
the same manner as the state Parliament treats matters from municipal councils within
5 the area of their government now.
Sir GEORGE TURNER (Victoria) presented a petition from the Melbourne and
Metropolitan Board of Works praying that the Convention would preserve the right of the
10 Queen's Australian subjects to appeal to the Privy Council, and moved that it be received
and read.
The motion was agreed to.
The CLERK read the petition, as follows:-
To the Right Honorable the President and the Members of the Australasian Federal
15 Convention, in session assembled.
The petition of the Melbourne and Metropolitan Board of Works humbly sheweth-That
your petitioner is a body corporate created by Act of the Parliament of Victoria, composed
of representatives elected by the councils of the city of Melbourne and the municipal
councils of the other 23 cities, towns, boroughs, and shires of the metropolis of the said
20 colony, which comprises an area of about 160 square miles, with a population of more than
451,000, who will be responsible for rates to be levied by your petitioner.
That the principal duties assigned to your petitioner are to manage and extend the water
supply of the said metropolis, and to undertake the sewering and draining thereof.
That in relation to the former of the said duties your petitioner is charged with liability
25 to the Government of Victoria for a sum of £2,359,156, the balance of money lent for
construction of the waterworks by creditors who are mostly resident in Great Britain. And
for extension of the said works, and to sewer and drain the metropolis, your petitioner has
borrowed £3,893,580 upon debentures, the holders of a large proportion of which reside in
the United Kingdom.
30
Date: Tue, 28 Aug 2007 01:23:27 +1000 (EST)
"Gerrit Schorel-Hlavka" <inspector_rikati@yahoo.com.au>
From:
Yahoo! DomainKeys has confirmed that this message was sent by yahoo.com.au.
Subject: No parliament under a federation can be "sovereign Parliament"
To: Kevin.Rudd.MP@aph.gov.au
CC: inspector_rikati@yahoo.com.au
Kevin.Rudd.MP@aph.gov.au,
Kevin Rudd, Leader of Her Majesty's Opposition
.
35 AND TO WHOM IT MAY CONCERN
.
Kevin,
In regard of your reported comments about seeking a REFERENDUM as to transfer legislative
powers from the States to the Commonwealth of Australia (regarding health matters), I do wish
to point out that Section 128 actually requires a state referendum to be held first in regard of any
legislative powers to be transferred to the Commonwealth of Australia, and once this has been
obtained then it requires another Federal Referendum (involving the same States). As such
Section 128 requires actually two referendums. The Commonwealth Parliament cannot propose
5 any amendment of the Constitution unless the proposed amendment has been already accepted
by the relevant State themselves by a State referendum.
Section 123 Referendum applies to where a State Parliament desires to have an amendment of its
State Constitution, it desires to refer legislative powers to the Commonwealth (such as within
Subsection 51(xxxvii) of the Constitution) and/or it desires to transfer part of its State territory to
10 the Commonwealth of Australia or otherwise alter its State boundaries.
It should be understood that State constitutions apply for the whole of the territory of that State
and as such when the State refers legislative powers to the Commonwealth of Australia it in
effect acts as an alteration of its constitutional powers as it diminish its constitutional powers and
as such can only be approved or vetoed by the State electors.
15 .
.
QUOTE:-
No parliament under a federation can be a constituent body; it will cease to have the
20 power of changing its constitution at its own will.
END QUOTE
.
"Subject to this constitution" means it must be interpreted to the intentions of the Framers of the
Constitution allowing for amendments made with approval by referendums.
25 With other words, the NSW Colonial Constitution Act effectively became amended by the
Commonwealth of Australia Act 1900 (UK) by legislatives powers belonging to all Colonies
being invested in the Federation (Commonwealth of Australia) which were specifically listed in
the Commonwealth of Australia Constitution Act 1900 (UK).
By colonial referendums this was approved by all Colonies electors.
30 Therefore, since Federation no State Parliament could amend its own State Constitution as it no
longer was a "sovereign Parliaments" but a "constitutional Parliament", as like the Federal
Parliament. This means that the State Parliament (as like the Federal Parliament) can only
propose to the State electors to amend the State constitution and then the State electors must
decide to approve or to VETO this proposed amendments(s).
35 .
Hence, ask which State Parliament since Federation actually pursued this way to amend its State
constitution?
.
You may find that NSW amended its State Constitution in 1902 but was it with the required
40 approval of the State electors by State referendum?
You find that the State of Victoria purportedly amended its State Constitution without a State
referendum in 1975, etc.
Likewise so in regard of any other subsequent purported State Constitution amendments!
.
45 As the Framers of the Constitution refused to give any legislative powers to the Commonwealth
of Australia as to define/declare "citizenship" (Hansard 2-3-1898 Constitution Convention
Debates) then as I successfully argued in my previous cases, the Australian Citizenship Act 1948
is ULTRA VIRES for so far it purports to define/declare "citizenship.
Hence, not a single police officer/lawyers/judge/politician is validly appointed as they all require
50 "citizenship" for this!
.

All court convictions made subsequently to the amended constitutional are all unconstitutional
and ULTRA VIRES, for so far they rely upon unauthorised amendments of a State Constitution!
It is pleasing to me, as a "CONSTITUTIONALIST" that finally we have a person as the Leader
of Her Majesty’s Opposition who indicates to seek approval from the electors by way of
5 referendum. That is if you were to pursue changes in that regard.
In my books in the INSPECTOR-RIKATI® series, I have canvassed that we should have an
OFFICE OF THE GUARDIAN, a constitutional council, that advises the Government, the
People, the Parliament and the Courts as to what is constitutional permissible and the limits of
powers.
10 Basically, anyone convicted of serious crimes, even terrorism, can walk free because of the lack
of qualifications by all concerned, including lack of "CITIZENSHIP", and that is, so to say,
merely the tip of the iceberg.
The fact that I succeeded in the Court that the commonwealth of Australia has no constitutional
powers to compel anyone to register and/or to vote may underline how absurd it is that
15 legislation that is ULTRA VIRES is being enforced nevertheless.
And, the Joint Senate Committee on Electoral Matters for years refused to attend to these issues
despite having been notified by me about this time and again.
.
The general misconception is that any statute passed by legislators bearing the appearance
20 of law constitutes the law of the land. The U.S. Constitution is the supreme law of the
land, and any statute, to be valid, must be in agreement. It is impossible for both the
Constitution and a law violating it to be valid; one must prevail. This is succinctly stated
as follows:
The general rule is that an unconstitutional statute, though having the form and name
25 of law, is in reality no law, but is wholly void, and ineffective for any purpose; since
unconstitutionality dates from the time of its enactment, and not merely from the date
of the decision so branding it. An unconstitutional law, in legal contemplation, is as
inoperative as if it had never been passed. Such a statute leaves the question that it
purports to settle just as it would be had the statute not been enacted.
30 Since an unconstitutional law is void, the general principles follow that it imposes no
duties, confers no rights, creates no office, bestows no power or authority on anyone,
affords no protection, and justifies no acts performed under it. . .
A void act cannot be legally consistent with a valid one. An unconstitutional law cannot
operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to
35 the fundamental law of the land, it is superseded thereby.
No one is bound to obey an unconstitutional law and no courts are bound to enforce
it.
Sixteenth American Jurisprudence
Second Edition, 1998 version, Section 203 (formerly Section 256)
40 .
PLEASE NOTE THERE IS MORE REGARDING THIS ISSUE OF "CONSTITUTIONAL
PARLIAMENTS" BUT I WILL BE NICE TO YOU AND NOT QUOTE ALL RELEVANT
STATEMENTS FOR NOW. IN ANY EVENT THEY ARE PUBLISHED IN MY BOOKS!
.
45 Gerrit
Mr. G. H. Schorel-Hlavka
MAY JUSTICE ALWAYS PREVAIL®

50
107 Graham Road

Viewbank, 3084, Victoria, Australia
Ph/Fax 03-94577209
International 61394577209
5
"CONSTITUTIONALIST" and Author of books in the INSPECTOR-RIKATI® series on certain

constitutional and other legal issues.
10 See also website; http://schorel-hlavka.com and
Blog; http://au.360.yahoo.com/profile-ijpxwMQ4dbXm0BMADq1lv8AYHknTV_QH
15 See also;
.
QUOTE
Dr. COCKBURN: There have been only four amendments in this century. The hon.
20 member, Mr. Inglis Clark, is a good authority on America, and I am sure he will agree with
me that out of sixteen amendments only four have been agreed to in this century. All the
other amendments which have been made were really amend- [start page 198] ments which
were indicated almost at the very framing of the constitution, and they may be said to be
amendments which were embodied in the constitution at the first start. The very element,
25 the very essence, of federation is rigidity, and it is no use expecting that under a rigid and
written constitution we can still preserve those advantages which we have reaped under an
elastic constitution. All our experience hitherto has been under the condition of
parliamentary sovereignty. Parliament has been the supreme body. But when we embark
on federation we throw parliamentary sovereignty overboard. Parliament is no longer
30 supreme. Our parliaments at present are not only legislative, but constituent bodies.
They have not only the power of legislation, but the power of amending their
constitutions. That must disappear at once on the abolition of parliamentary
sovereignty. No parliament under a federation can be a constituent body; it will cease
to have the power of changing its constitution at its own will. Again, instead of
35 parliament being supreme, the parliaments of a federation are coordinate bodies-the
main power is split up, instead of being vested in one body. More than all that, there is
this difference: When parliamentary sovereignty is dispensed with, instead of there
being a high court of parliament, you bring into existence a powerful judiciary which
towers above all powers, legislative and executive, and which is the sole arbiter and
40 interpreter of the constitution.
END QUOTE
END QUOTE Chapter 361 –Local Government
.
And there is more to this as taxation can only be used for public purposes and only for the
45 “whole of the Commonwealth” and not for States having purportedly transferred their legislative
powers within s.51(xxxvii) but omitting to first obtain State Referendum approval as required by
the constitution (see also further below).
At the end of this document I have reproduced the issue as to “Chapter 012 Reference of
legislative powers” which underlines that no reference of legislative powers is constitutionally
50 validly referred to the Commonwealth where it was not first approved by the State electors by
State referendum.
It is also that where one or more States but not all State refer its legislative powers to the
commonwealth then ordinary Consolidation Revenue funds cannot be used for this but the States
have to pay a special levy for any cost incurred by the Commonwealth to deal with this reference
of legislative powers.
5 .
As such, we seem to have an utter legal mess/mesh and much of taxation is wasted. Below there
is more of an outset further to this issue.
.
QUOTE
B. Pendent Jurisdiction
[20]This three-judge district court was convened because the complaint challenged the
constitutionality of provisions of the Internal Revenue Code, 28 U.S.C. §§ 2282, 2284
15 (1964). This court also has jurisdiction, under 28 U.S.C. § 2282, sometimes called ancillary
or pendent jurisdiction, to hear and determine the non-constitutional questions involved,
including plaintiffs' two statutory claims, based on the Civil Rights Act of 1964 and on the
proper construction of the Internal Revenue Code. Flast v. Cohen, 392 U.S. 83, 90-91, 88
S.Ct. 1942, 20 L.Ed.2d 947 (1968); Florida Lime & Avocado Growers v. Jacobsen, 362
20 U.S. 73, 75-85, 80 S.Ct. 568, 4 L.Ed.2d 568 (1960); United States v. Georgia Pub. Serv.
Comm'n, 371 U.S. 285, 287-288, 83 S.Ct. 397, 9 L.Ed.2d 317 (1963).
"The doctrine of dependent or ancillary jurisdiction *** springs from the equitable doctrine
that a court with jurisdiction of a case may consider therein subject matter over which it
would have no independent jurisdiction whenever such matter must be considered in order
25 to do full justice." Walmac Co. v. Isaacs, 220 F.2d 108, 113-114 (1st Cir. 1955). Pendent
jurisdiction has usually been stated to exist when the two questions arise out of the same
cause of action, whether they be state and federal claims, Hurn v. Ousler, 289 U.S. 238, 53
S.Ct. 586, 77 L.Ed. 1148 (1933), or two different federal claims, Romero v. International
Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959). The Supreme
30 Court has recently warned that the Federal courts should not be "unnecessarily grudging" in
their assumption of pendent jurisdiction. The test is that the two claims "must derive
from a common nucleus of operative fact," and if "a plaintiff's claims are such that he
would ordinarily be expected to try them all in one judicial proceeding, then,
assuming substantiality of the federal issues, there is power in Federal courts to hear
35 the whole." United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130,
1138, 16 L.Ed.2d 218 (1966). The ultimate disposition of the claim upon which jurisdiction
is based is immaterial, so long as the claim was not plainly wanting in substance, Hurn v.
Oursler, supra. Pendent jurisdiction of the other claims has been held to survive even when
the jurisdictionally significant claim has become moot. Hazel Bishop, Inc. v. Perfemme,
40 Inc., 314 F.2d 399 (2d Cir. 1963).
ENDQUOTE
.
Again, VCAT didn’t have any jurisdiction in the first place and as such could not invoke any
jurisdiction but that seems to be of no concern to VCAT and they go on so to say destroying the
45 livelihood of a person if just as it appears to me to have some kind of payback for a man to date
to stand up for his constitutional rights as Mr Francis James Colosimo is doing. This is also why
it is so important to have a OFFICE-OF-THE-GUARDIAN so that finally this can be
appropriately addressed and much of the monies now wasted can be saved.
.
50 QUOTE Chapter 002 OFFICE OF THE GUARDIAN

Chapter 002 OFFICE OF THE GUARDIAN
* Gary, would you mind explained OFFICE OF THE GUARDIAN? What you seek to achieve
with its creation?
5
**#** INSPECTOR-RIKATI®, the OFFICE OF THE GUARDIAN, would be a
constitutional council, to advise the Government, the People, the Parliament and the Courts.
* Are you meaning we need to have an amendment of the Constitution for this?
10
**#** Not at all. It is not going to interfere with out current judicial system, rather would aid it.
It would not interfere with the legislative powers of the Commonwealth of Australia, rather aid
it. It would not interfere with the executive powers of a Government of the Day but rather Aid it!
15 * If it is to aid it all then why was it not created long ago?
**#** Because no one realized how cancerous the Commonwealth of Australia was, and indeed
so also the States. Just consider you counting money 20 cents and twenty cents being totally 50
cents. You make an error in counting but time and again you repeat the same error. Yet, if you
20 were to add a coin of say 10 cent and then start counting with the ten cent then you realize you
are ending up with the same amount only an added coin.
People are at times repeating errors without realising they are making the same error time and
again. This is in particular so with how the Constitution applies.
25 Judges who are sitting in judgment at the High Court of Australia ought to have been
appropriately trained in certain constitutional matters before it handed down judgments.
Indeed, I view no judge should be appointed to the High Court of Australia
* How would an OFFICE OF THE GUARDIAN address such issues?

30
**#** Firstly, you need to work out the formation of an OFFICE OF THE GUARDIAN.
My proposal would be that from each State one would have three representatives. One of which
is to be a lawyer. The two others should be elected by ballot, in the same manner as they do for
Jury service.
35
Why have two non lawyers from each of the States?
What we need is “common sense” and the so called “commoner” is the best to provide it.
Lawyers can contribute their views, but as I have already made clear they are being brainwashed
40 at legal studies, etc, and so while they are needed on the other hand are a danger.
I used to sit in when lawyers were talking to their clients. For example this man made an
agreement with his lawyer when I pulled both up about the agreement and explained they really
never had a meeting of the minds, so to say. I explained then to the lawyer what he understood
the agreement was about, and he fully agreed to this. I then explained to the client what I
45 understood he had agreed to and he too explained this was so. By this, I was able to show that
both were talking about a total different kind of perception of agreement!
This is often why clients and lawyers end up in a tug of war, both claiming to have acted
according to the agreement while accusations flies about breach of the agreement.
The lawyer talks in a jargon he understands as such while the client has a different understanding
50 of the jargon used.
Lets try to take an example of minor nature.

The lawyer may state that the client must “guarantee” the cost will be paid. The Client then
agrees with this. The lawyer having explained previously that the cost could be $15,000.00 plus
then takes it that the client therefore will have guaranteed the cost of whatever the litigation is
going to be and so by a formal guarantee, say, the property the client owns. The client however
5 may perceive that his personal agreement to pay the bill of $15,000.00 plus likely means about
$15,000.00 and not, say, $30,000.00 or so and knowing that his property is under heavy
mortgage that does not allow it to be used as collateral may have the view that his personal
agreement is on the basis of his financial position. Later in a dispute each party will claim his/her
version of perception!
10 The client who perhaps lost his job in the meantime and /or his marriage having the house being
sold not even covering the mortgage may take the position that it was beyond his powers to do
otherwise and so the debt claimed by the lawyer no longer is realistic top be held applicable.
I have come across incidents like that and so know from real life people have this perception.
15 Another problem arises where people were funded by legal AID, many a woman afterwards
sought my assistance that LEGAL AID COMMISSION had taken such large slice out of the
sale of the property where they understood that they didn’t need to have to pay back any monies.
As some made clear, they thought it was for free and had they known that they had to pay back
the monies they would never have protracted the litigation ongoing.
20 So, there are clearly misconceptions between clients and their lawyers.
Indeed, lawyers letting a client wait in the waiting room while they are still attending to their
client, and then in the end telling their client to come back the next day, but unbeknown to the
client the lawyer may still put a charge to LEGAL AID COMMISSION for the hour of
consultation with the client, even so nothing occurred. The client may never know about this
25 kind of fraudulent charging, in particularly not where LEGAL AID COMMISSION does not
ensure a client must sign for any cost claimed in regard of any consultations/visits, as to time of
commencement and time of the client leaving. So, there then is a lot of problems existing
already.
What we need therefore is to get some proper regulated system that at least will seek to avoid
30 numerous problems to occur when it comes to errors. Sure, the Constitution does not deal with
LEGAL AID COMMISSIONS kind of payments, but the Federal Executive also abuses its
powers greatly and acts unconstitutionally and illegally.
With an OFFICE OF THE GUARDIAN having non-lawyers it means that they can contribute
35 their perceptions as to what they perceive they understand of certain meanings of statement made
by the framers of the Constitution. A lawyer might be preoccupied with his legal studies
knowledge and therefore never perceive what is written as he, like the counting of coins, will
continue to make the same error. What we therefore would require to have is a board that is
having a diversion of people with different perceptions and together can contribute to come to a
40 conclusion. Then by ballot they elect who will be in charge for a year period as the
GUARDIAN. It must be clear it does not need to have to be a lawyer. What is essential is that
anyone who joins this “board” can only do so for a period of three years, and every year one
member of each State is replaced. That way, you will have an ongoing rotation and avoid
political bias becoming the norm. The task of the Members of the board of the OFFICE OF
45 THE GUARDIAN would be to work out what relevant meanings are of constitutional
provisions, consulting also the statements made by the Framers of the Constitution. As such,
their conclusion would be what they consider to be appropriate to the relevant material available.
So now take it that you approach the OFFICE OF THE GUARDIAN and explain to them that
50 you are in the midst of litigation and you like to get in your hands all relevant material relating
this constitutional issue. The OFFICE OF THE GUARDIAN, without charge, would then
provide whatever they have on the subject.
Now you go home and you go through the lot and you hold that the conclusion the OFFICE OF
THE GUARDIAN gave in the material is either partly or whole incorrect. You then approach
the OFFICE OF THE GUARDIAN and explain what you dispute, if any, and set out your
views.
5 The board of the OFFICE OF THE GUARDIAN then reconsiders what it had and the
comments made and then seek to come up with what it deems to be appropriate. It could be they
rejects the issues raised as not being correct or otherwise. They can amend their statement with
partly or wholly accepting what was commented by the person.
It must be stated that the material provided is for informative purposes only!
10 Now, say there is a person who contacts the OFFICE OF THE GUARDIAN and complaints
that the government (or one of its Department) may be acting unconstitutionally in its conduct.
The OFFICE OF THE GUARDIAN may agree or disagree with the complainant.
If it takes the view there might be a case, it can then in its own right place the matter before the
High Court of Australia seeking its judicial determination in the matter.
15
The High Court of Australia in the first place will be provided by the OFFICE OF THE
GUARDIAN with all relevant details it has on record on the issue before the Court. Judges can
nevertheless do their own investigation/research (by their staff or otherwise) and may or may not
agree with the OFFICE OF THE GUARDIAN The complainant can join in the litigation in
20 his/her own right as to be able to present his/her own views. If the High Court of Australia in the
end agrees with the OFFICE OF THE GUARDIAN then it can issue relevant orders to prohibit
the Government Department to act contrary to constitutional provisions, etc.
The complainant can in his/her own right litigate and present his/her own case regardless if the
OFFICE OF THE GUARDIAN does not commence any litigation, because it might rightly or
25 wrongly have the view that there is no issue.
If the Court makes a judgment then the OFFICE OF THE GUARDIAN has to update its
material to include the judgment as to ensure that any person who were to seek information has
the moist updated details. It would not make the details available binding, as anyone can still
30 challenge this and have, so to say, overturned a previous decision, but principle is that anyone
can obtain the same information regarding the subject from the OFFICE OF THE
GUARDIAN.
The benefit would also be that a poor person who cannot litigate because of lack of funds can
35 still pursue legal redress if the OFFICE OF THE GUARDIAN happens to get involved in its
own right, and the OFFICE OF THE GUARDIAN happens to get involved, in its own right as
a GUARDIAN of the Constitution and succeed. This, as then the poor person will have an legal
precedent upon which he/she can base a case!
40 A government seeking certain legislation to be put in place could consult the OFFICE OF THE
GUARDIAN about what it knows about constitutional powers and their limitations, this as to get
a general knowledge.
Likewise, Members of the Parliament who lack proper understanding of legal complexity may
desire to have a source of information that is without bias provided to see if a certain bill is to be
45 deemed appropriate and permissible within constitutional powers and limitations or not.
The Courts themselves are not bound to accept what the OFFICE OF THE GUARDIAN
provides on information but will have far more reliable material to use then having some ad hoc
researcher doing it in a hurry and by this overlooking real issues related to it.
50 The aim therefore is to make a most flexible system of a source of information available to
whomever in the same updated manner. Judges dealing with constitutional issues, apart of any

personal research may call upon the OFFICE OF THE GUARDIAN as to be able to make a
fully informed decision on a certain constitutional issue.
* Gary, can I put in a word?

5
**#** Of course you can!
* Is this meaning that the OFFICE OF THE GUARDIAN really is an advisory body?
10 **#** Correct. But, it also has the right to pursue litigation in its own right to place before the
High Court of Australia material and seeking a ruling upon it by the Court.
* Is that meaning I can ask the OFFICE OF THE GUARDIAN to sue on my behalf?
15 **#** No, that is not the function of the OFFICE OF THE GUARDIAN. Its concern is only to
present updated information and to pursue that breaches against the Constitution are dealt with
appropriately.
Obviously, by this the OFFICE OF THE GUARDIAN could also indicate the legal issues, as it
20 deems applicable, such as in my case could have warned the Australian Electoral Commission
that the Framers intended that once a person made a constitutional based objection against a
proclamation/writs/legislative provision then this would be ULTRA VIRES from creation until
and unless the High Court of Australia declared it to be INTRA VIRES.
I have no doubt that had this kind of information been available to the Australian Electoral
25 Commission it more then likely would not have obstructed my applications to be heard as it
would have realized that in its own interest to conduct lawful elections it needed such a
declaration. What happened however is that neither the Australian Electoral Commission, its
lawyers and the judges or for that matter the politicians realized that by their deliberate
railroading my applications they in fact prevented a lawful election to be held.
30 This is why it is so badly needed that appropriate information is available when needed by
anyone regardless of if they are in government, if they are a member of the “general
community”, if they are Members of Parliament, or if they are judicial officers.
* As I understand it then you do not mean that the OFFICE OF THE GUARDIAN dictates
35 what is applicable but more is a source of information giving details as to how matters could be
applicable pending a decision of the High Court of Australia?
**#** That is a proper manner to state this.
40 * And, I further understand that the OFFICE OF THE GUARDIAN in its own right could take
the matter to the High Court of Australia to seek clarification of a matter against the Federal
Government or the parliament or even seek leave to intervene in legal proceedings if it believes
there is a constitutional issue to be litigated about as to ensure that the constitutional provisions
remain appropriately applied with or being followed?
45
**#** That is excellent. You are really getting the gist of it, so to say..
* How much would it cost to obtain the information?
50 **#** As I made earlier known it must be provided FREE OF CHARGE to anyone. This, so
that even the poor people have this information available to them! For example, a copy of the

Constitution should be provided for free to every primary school student and indeed anyone who
ask for a copy. This, as it is essential anyone has access to this information!
We have issues such as toxic waste, Industrial Relations, and numerous other matters and few
5 people ever even have seen the Constitution let alone read it to have any understanding what it is
about. Yet, for a document that spills out the basic powers and limitations of the POLITICAL
UNION called Commonwealth of Australia it is sheer and utter nonsense that the Constitution is
not more readily given out. This is also why people are confused about their rights and so
likewise what possibly could be applicable. Then again I must admit that even if they had copies
10 of the Constitution they may still not be able to understand the precise operation unless they also
had access to other relevant details. This is where the OFFICE OF THE GUARDIAN comes
into place. It then could advise anyone seeking information as to the background creating a
particular section of the Constitution, what was debated about it, what judicial decisions were
made in regard of it, etc. Then, judges of the High Court of Australia do not just need to rely
15 upon their own researches who may or may not be able to locate the correct version of
development of certain constitutional provisions and so have a more comprehensive information
at hand to make a judgment. The High Court of Australia is not a true GUARDIAN of the
Constitution at all, as it has no constitutional power to commence on its own motion to litigate
constitutional matters where it deems there is a constitutional issue existing to be litigated.
20 Indeed, it even prevents constitutional issues to be litigated as was discovered in my cases. For
example, the High Court of Australia did not and cannot advise Members of Parliament that
instead of waiting for a Bill (proposed law) being passed by the Parliament and enacted before
they can commence litigation they can in fact as a Member of Parliament challenge the
constitutional validity in the House they having a seat (of Parliament) and then the Speaker of the
25 House of Representatives and/or the President of the Senate cannot allow the bill to proceed
without first seeking to establish the constitutional validity of the law proposed to be introduced
in the Parliament for reading and/or voting. It means that instead waiting for the damages to be
done with having unconstitutional legislation invoked, it is stopped in its tracks, so to say, at
introduction into the Parliament.
30 In any event, look at the new purported IR laws amendments. They are not laws at all as they are
objected against on constitutional grounds and so are ULTRA VIRES unless and until the High
Court of Australia declares them to be INTRA VIRES! Yet ample of employers are using the
new legislation in the mean time thinking that they are acting lawfully and not even the Federal
Government and so the Opposition are aware that the new legislation is and remains at the
35 moment ULTRA VIRES!
AND, BESIDES MYSELF THERE APPEAR TO BE, AS I UNDERSTAND IT, NOT A

SINGLE CONSTITUTIONAL ADVISOR WHO ACTUALLY UNDERSTAND THAT
MATTER! Yet, if the OFFICE OF THE GUARDIAN had already existed then employers
40 would have been Quick smart to realise they could not use the purported legislation once there
was a constitutional based challenge on foot as it was all ULTRA VIRES.
Galations 4:16. Am I therefore become your enemy, because I tell you the truth?
45 The error is in the assumption that the General Government is a party to the constitutional
compact. The States formed the compact, acting as sovereign and independent
communities.
The Constitution has admitted the jurisdiction of the United States within the limits of the
several States only so far as the delegated powers authorize; beyond that they are
50 intruders, and may rightfully be expelled.
The government of the uncontrolled numerical majority, is but the absolute and despotic
form of popular government...
If we do not defend ourselves none will defend us; if we yield we will be more and more
pressed as we recede; and if we submit we will be trampled underfoot.
John C. Calhoun
5 "In the beginning of a change, the Patriot is a scarce man, brave, hated and scorned. When
his cause succeeds however, the timid join him, for then it costs nothing to be a Patriot."
- Mark Twain
END QUOTE Chapter 002 OFFICE OF THE GUARDIAN
.
10 Issues such as the commonwealth position in regard of s.85, s.51(xxxi), etc, all then could be
mainly resolved by this OFFICE OF THE GUARDIAN and as such avoid a lot of litigation in
the courts because finally there will be IMPARTIAL constitutional set out available without any
political bias, which Members of parliament in particularly are currently also denied off and so
mainly vote upon whatever the leader of the relevant political party may indicate to be done. The
15 “FEE SIMPLE” issue is very much also relevant in this all and has been further addressed
below also.
.
I get often people commenting that my sentences are long, too long and I should cut them down a
bit and so let’s have a look at a sentence length, also considering the reference to “FEE
20 SIMPLE” and then the above stated.
.
QUOTE
25 And we do further, of our special grace, certain knowledge and mere motion, for us, our
heirs and successors, will, give, grant and appoint, that the said trustees and their successors
shall for ever hereafter be, in deed, act and name, a body corporate and politic, and that
they, the said body corporate and politic, shall be known and distinguished, in all deeds,
grants, bargains, sales, writings, evidences or otherwise howsoever, and in all courts for
30 ever hereafter, plea and be impleaded by the name of the Trustees of Dartmouth College;
and that the said corporation, *526 by the name aforesaid, shall be able, and in law capable,
for the use of said Dartmouth College, to have, get, acquire, purchase, receive, hold,
possess and enjoy, tenements, hereditaments, jurisdictions and franchises, for
themselves and their successors, in fee-simple, or otherwise howsoever, and to
35 purchase, receive or build any house or houses, or any other buildings, as they shall
think needful and convenient, for the use of said Dartmouth College, and in such town in
the western part of our said province of New Hampshire, as shall, by said trustees, or the
major part of them, he agreed on; their said agreement to be evidenced by an instrument in
writing, under their hands, ascertaining the same: And also to receive and dispose of any
40 lands, goods, chattels and other things, of what nature soever, for the use aforesaid: And
also to have, accept and receive any rents, profits, annuities, gifts, legacies, donations or
bequests of any kind whatsoever, for the use aforesaid; so, nevertheless, that the yearly
value of the premises do not exceed the sum of 6000£. sterling; and therewith, or otherwise,
to support and pay, as the said trustees, or the major part of such of them as are regularly
45 convened for the purpose, shall agree, the president, tutors and other officers and ministers
of said Dartmouth College; and also to pay all such missionaries and school-masters as
shall be authorized, appointed and employed by them, for civilizing and christianizing, and
instructing the Indian natives of this land, their several allowances; and also their respective
annual salaries or allowances, and all such necessary and *527 contingent charges, as from
50 time to time shall arise and accrue, relating to the said Dartmouth College: And also, to
bargain, sell, let or assign, lands, tenements or hereditaments, goods or chattels, and all
other things whatsoever, by the name aforesaid in as full and ample a manner, to all intents
and purposes, as a natural person, or other body politic or corporate, is able to do, by the
laws or our realm of Great Britain, or of said province of New Hampshire.
END QUOTE
.
QUOTE
to have, get, acquire, purchase, receive, hold, possess and enjoy, tenements,
hereditaments, jurisdictions and franchises, for themselves and their successors, in
10 fee-simple, or otherwise howsoever, and to purchase, receive or build any house or
houses, or any other buildings, as they shall think needful and convenient,
END QUOTE
.
The question then is if despite all the above stated that a “grant” is a “contract” then can
15 nevertheless the government take away the FEE SIMPLE properties from a religious entity as it
does with a private person? Or is it now that s.51(xxxi) somehow might be perceived not to apply
to a religious entity and so s.51(xxxi) somehow was to be perceived to have a DOUBLE
STANDARD application in regard of this? Indeed what “eminent domain” powers were to exist
where a religious entity’s property having been part of a State “sovereign” powers end’s up in a
20 Commonwealth “sovereign” powers by the State transferring its “sovereign” powers to the
Commonwealth? What taxable powers then could exist if the State granted the religious entity
tax exemptions and now under the Commonwealth those kinds of pay roll exemptions no longer
can be applied? After all the States having an obstacle with basically large corporations setting
themselves up under the umbrella of being a religious entity can by this exclude themselves of all
25 kinds of taxes no matter how much a scam/sham this might be. This, whereas under
commonwealth law not just providing the same funding to all religions can be an excuse but
rather any funding is a religious funding prohibited by the Constitution.
.
For taxation powers, as has been comprehensively set out below, while the States cannot apply
30 taxes to Commonwealth property and so visa versa s.114 of the Constitution however doesn’t
prevent a State to levy taxes on Commonwealth property that is being used for non
Commonwealth purposes and so visa versa. As such airport that has tenants operating on it then
unless the airport is not just held by the Commonwealth as “PROPRIETOR” but as
“SOVEREIGN” then all tenants will be subject to ordinary State taxes. Any High Court of
35 Australia ill conceived decision that indicates otherwise we do better not to bother about, as it
will be and remain without legal force!
.
Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann;
Spi [1999] HCA 27 (17 June 1999)
40 QUOTE
For constitutional purposes, they are a nullity. No doctrine of res judicata or issue
estoppel can prevail against the Constitution. Mr Gould is entitled to disregard the orders
made in Gould v Brown. No doubt, as Latham CJ said of invalid legislation, "he will feel
safer if he has a decision of a court in his favour". That is because those relying on the
45 earlier decision may seek to enforce it against Mr Gould.
END QUOTE
.
Uniform Tax \case, 1942 (65CLR 373 at 408)
QUOTE
50 "Common expressions such as: 'The Courts have declared a statute invalid'," says Chief
Justice Latham, "sometimes lead to misunderstanding. A pretended law made in excess
of power is not and never has been a law at all. Anybody in the country is entitled to
disregard it. Naturally, he will feel safer if he has a decision of a court in his favor, but
such a decision is not an element, which produces invalidity in any law. The law is not
valid until a court pronounces against it - and thereafter invalid. If it is beyond power it
is invalid ab initio."
5 END QUOTE
.
What should be understood is that the parliamentarians are “agents” of the people and must
conduct themselves and so their inquiries to always keep[ this in mind regardless if this may be
resented by those wanting to wield power in disregard of what is constitutionally permissible.
10 .
QUOTE
Mr. BARTON.- Having provided in that way for a free Constitution, we have
provided for an Executive which is charged with the duty of maintaining the
15 provisions of that Constitution; and, therefore, it can only act as the agents of the
people.
END QUOTE
.
20 QUOTE
Mr. DEAKIN.- In this Constitution, although much is written much remains
unwritten,
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
30 conceive of nothing of greater magnitude in the whole history of the peoples of the
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
35 .
I view it is better to first provide some quotations of the Framers of the Constitution that will
make it beyond any shred of doubt very clear that any so called “congestion tax” to deal with
cities traffic is beyond the constitutional powers of the Commonwealth of Australia other then
where it as a “sovereign” for the territories were to implement this. As a “sovereign” for the
40 Territories the Commonwealth of Australia is as like a State, and as such has the powers as like a
“sovereign” of a State and not bound by the limitations of s.51 of the Constitution whereas when
it acts as the POLITICAL UNION (A terminology that will also below attended to.) in regard
of Federal powers transferred at federation from the Colonies (now States) then all legislation
must be “throughout the Commonwealth in a “uniform” manner.
45 .
http://au.news.yahoo.com/a/-/latest/6920207/scientology-inquiry-blocked-in-senate/
QUOTE
Scientology inquiry blocked in Senate

Labor and the coalition have been accused of walking away from claims of
abuse in the Church of Scientology, by blocking a Senate investigation into
the tax-free status of religious groups.
Independent senator Nick Xenophon on Thursday failed to win sufficient
5 support for an inquiry into whether church groups should be subjected to a
public benefit test, like that in the UK.
His move was prompted by complaints from former members of the Church
of Scientology, and "hundreds" more allegations since first raising the issue.
Claims of forced abortions, imprisonment in boot camps and separation of
10 families were also aired this week on the ABC's Four Corners program.
Both Labor and the coalition voted against Senator Xenophon's move.
Labor frontbencher Joe Ludwig said a Senate inquiry was
unwarranted, as there were already two other inquiries looking into
taxation matters, including the tax-free status of religious groups.
15 Liberal senator Eric Abetz said the inquiry would turn the Senate into a "de
facto criminal investigations bureau" and worried it would allow disaffected
people from all types of groups to air their grievances.
Senator Xenophon said he had broadened the scope of the proposed inquiry
to look at the tax-free status of all religious groups on "good faith" after talks
20 with both parties.
He will next week introduce another motion for an inquiry into specific
allegations against Scientology.
Labor and the coalition must explain why they had chosen to "look away"
from the issue, Senator Xenophon said after the vote.
25 "(Prime Minister) Kevin Rudd and (Opposition Leader) Tony Abbott need to
explain to the Australian people why they have looked away, why they have
walked away from an issue of public importance," he told reporters.
Mr Rudd told reporters he would release a statement explaining the
government's position, but it was instead issued through the office of
30 Assistant Treasurer Nick Sherry.
A spokesman for Senator Sherry said it was not the role of the Senate to
investigate the tax status of any organisation, or criminal allegations.
"The Rudd government's view is that a Senate inquiry into the Church of
Scientology is not justified on the basis of our view of the parliament's
35 function," the spokesman said.
Church of Scientology spokesman Cyrus Brooks said the result was a
"victory for religious freedom".
"Many of the incidents Senator Xenophon has referred to have previously
been investigated by police, coroners and other agencies and no adverse
40 finding has been made," Mr Brooks said in a statement.
Debate on the motion turned nasty when Liberal backbencher Cory Bernardi
accused the Greens of conducting religious witch-hunts.

"This is the organisation, remember, that wanted the members of the
Exclusive Brethren Christian organisation to mark their businesses so
people would know who they were," he said.
"The Star of David ... that the Greens wanted to impose."
5 The symbol was used by the Nazis during the Holocaust as a way of
identifying Jews.
Senator Bernardi later withdrew the inference.
END QUOTE
.
10 In my view any inquiry specifically into religion may be deemed to be in conflict of s.116 of the
constitution however any inquiry into NON PROFIT (NOT-FOR-PROFIT) registration
entities for “PUBLIC PURPOSES” can legitimately address issues as such as I am doing below
extensively.
.
15 This document will also deal with religious taxation exemptions and why this is
unconstitutional where this is based on religion! For taxation purposes it should not make any
difference if a body is deemed to be a cult, a faith, or whatever because as set out below no
taxation funds can be used for religious purposes. Hence the issue is, as has been addressed
below to some extend, if organizations being it called cults, religion or whatever such as HILL
20 SIDE CHURCH, SCIENTOLOGY, EXCLUSIVE BRETHERN, etc, are in fact at all entitled
to tax exemption. It is important to understand that dealing with matters upon a constitutional
manner rather then a so called religious persecution, or something of that kind, might be the best
manner to address certain issues.
Also, that taxation cannot be used for matters that are not for “PUBLIC PURPOSES”. Because
25 of the problems with having High Court of Australia Authorities (judgments, etc.) on record
which I view are in conflict with the true meaning and application of the constitution I have set
this out below also as to seek to avoid those misconceptions to continue.
For purpose as to present a more evenhanded presentation I have quoted below also material
which are judgments and submission of others with a counter argument.
30 .
The following should be applied to any religion, including TAXATION, TAXATION
EXEMPTIONS, TAX DEDUCTIONS, etc.
.
http://www.answers.com/topic/lemon-v-kurtzman
35 QUOTE
Lemon test
The Court's decision in this case established the "Lemon test", which details the
requirements for legislation concerning religion. It consists of three prongs:
1. The government's action must have a secular legislative purpose;
40 2. The government's action must not have the primary effect of either advancing or
inhibiting religion;
3. The government's action must not result in an "excessive government

entanglement" with religion.
END QUOTE
45 .
http://supreme.justia.com/us/83/678/case.html
U.S. Supreme Court Olcott v. The Supervisors, 83 U.S. 16 Wall. 678 678 (1872)
QUOTE
In 1870, that is to say, subsequent to the issue of these orders, though prior to the
trial of this case in the court below, the Supreme Court of the State of Wisconsin, in
the
Page 83 U. S. 680
5 case of Whiting v. Fond du Lac County, [Footnote 1] held this act to be void, upon the
ground that the building of a railroad, to be owned and worked by a corporation in
the usual way, was not an object in which the public were interested, and therefore
that the act in question was void, for the reason that it authorized the levy of a tax for
a private and not a public purpose.
10 END QUOTE
.
QUOTE
15 The question considered by the court was not one of interpretation or construction. The
meaning of no provision of the state constitution was considered or declared. What was
considered was the uses for which taxation generally, taxation by any government,
might be authorized, and particularly whether the construction and maintenance of
a railroad, owned by a corporation, is a matter of public concern. It was asserted
20 (what nobody doubts), that the taxing power of a state extends no farther than to
raise money for a public use, as distinguished from private, or to accomplish some
end public in its nature, and it was decided that building a railroad, if it be
constructed and owned by a corporation, though built by authority of the state, is
not a matter in which the public has any interest, of such a nature as to warrant
25 taxation in its aid.
Page 83 U. S. 690
For this reason it was held that the state had no power to authorize the imposition of
taxes to aid in the construction of such a railroad, and therefore that the statute giving
Fond du Lac County power to extend such aid was invalid. This was a determination of
30 no local question or question of statutory or constitutional construction.
END QUOTE
.
QUOTE U.S. Supreme Court Olcott v. The Supervisors, 83 U.S. 16 Wall. 678 678 (1872)
35 "The legislature cannot create a public debt, or levy a tax, or authorize a municipal
corporation to do so, in order to raise funds for a mere private purpose. It cannot, in
the form of a tax, take the money of the citizen and give it to an individual, the public
interest or welfare being in no way connected with the transaction. The objects for which
the money is raised by taxation must be public, and such as subserve the common
40 interest and wellbeing of the community required to contribute. . . . To justify the court
in arresting the proceedings and declaring the tax void, the absence of all possible
public interest in the purposes for which the funds are raised must be clear and
palpable; so clear and palpable as to be perceptible by every mind AT THE FIRST
BLUSH."
45 END QUOTE
.
This document therefore will address some of the issues about “PUBLIC PURPOSE” and if
taxation can be used to provide TAX DEDUCTIONS, TAX EXEMPTIONS, TAX
BENEFITS, etc for what essentially are not at all “PUBLIC PURPOSES”.
50 For Commonwealth purposes because of s.116 religion cannot be used for “PUBLIC
PURPOSES” to provide TAX DEDUCTIONS, TAX EXEMPTIONS, TAX BENEFITS, etc.
.
QUOTE
Mr. BARTON.- The position with regard to this Constitution is that it has no
5 legislative power, except that which is actually given to it in express terms or which is
necessary or incidental to a power given.
END QUOTE
Therefore any inquiry into the misuse of taxation would mean that legitimately taxation
10 deductions, tax concessions, and tax exclusions all can be addressed albeit not just in
regard of Scientology but in regard of all and any religion! Where the commonwealth of
Australia is specifically denied any legislative powers as to religion then it neither can permit any
tax exemptions in regard of religions! Any religious provision by the Commonwealth would
have to include secular entitlements also.
15 .
QUOTE
Clause 81 (Chapter IV., Finance and Trade).-All revenues raised or received by the
Executive Government of the Commonwealth, under the authority of this Constitution,
20 shall form one Consolidated Revenue Fund, to be appropriated for the public service of the
Commonwealth in the manner and subject to the charges provided by this Constitution.
END QUOTE
.
These kinds of expressions were on various occasions referred to as to indicate that all revenue of
25 all sources should become one Consolidated Revenue funds. While, as shown below, all s.51
listed legislative powers become exclusive the moment the Commonwealth of Australia
commences to legislate upon this, there are however exceptions to these matters and that is that
in regard of taxation the States retain taxation powers but only for those matters in regard the
commonwealth doesn’t legislate for. As such, the moment the Commonwealth were to legislate
30 as to land tax then the States must retire from this. It also should be understood that colonial laws
that were legislated before federation but not amended since federation maintained the full force
of law! This too is often misconceived that somehow colonial laws (provided they were not
amended since federation) are no longer applicable merely because the Commonwealth has
legislated upon the subject matter. To include all statements of the Framers of the constitution
35 would be that this document would be running into thousands of pages and so has not be
contemplated to do so, however as an example to show that contrary to the High Court of
Australia assertion about “British subject” it has been canvassed below to show that this is a
term embedded as a legal concept in the constitution to be applicable to natural born or
naturalized Australians and hence cannot be denied to anyone and not even an amendment of the
40 constitution can achieve this because s.128 referendum powers of the constitution cannot go
beyond the constitution itself to be amended. Not even the preamble can be amended by s.128
referendum!
As such, while this document may be of some length it will provide also what the Framers
of the Constitution really intended, and so the considering the legal principles embedded in
45 the constitution, and therefore what is applicable and only when one understand this can
one deal with issues such as taxation and how it can be applied in a constitutional valid
manner.
.
50 QUOTE

point out that laws would be valid if they had one motive, while they would be invalid
if they had another motive.
5 END QUOTE
.
QUOTE Mr. OCONNOR.-
10 Constitution. Our own Parliaments do as they think fit almost within any limits. In this
to it.
END QUOTE
.
QUOTE
Mr. GORDON.- The court may say-"It is a good law, but as it technically infringes
END QUOTE
20 .
As referred to below also while Section 114 of the constitution does not permit the
Commonwealth to raise taxes upon State properties and visa versa, but it should be understood
that this doesn’t prohibit raising taxes on properties that are leased out as they are not used for
“PUBLIC PURPOSES”
25 .
Commonwealth v New South Wales [1923] HCA 34; (1923) 33 CLR 1 (9 August 1923)
QUOTE
As to the lands which vested in the Commonwealth under sec. 85 of the Constitution
(numbered 5 and 6 in the writ, referred to in pars. 13 and 15 of the case stated), they vested
30 in the Commonwealth by the operation of the Constitution—an Imperial Act—without any
deed of grant or other document. The Constitution does not say for what estate they vest;
but having regard to the words used in sec. 85 and the difficulties of treating the Crown as
tenant of itself, even in another capacity, I think that the Crown in right of the
Commonwealth took just the same full property and rights as to the land, that the
35 Crown in right of the State had before the transfer of the Department. The Crown
remains the owner, but deals with the land under Commonwealth law instead of under State
law. Under sec. 64 of the Lands Acquisition Act any land that by virtue of sec. 85 of the
Constitution become vested in the Commonwealth, shall for the purposes of the said Act be
deemed to have been acquired thereunder, and to be vested in the Commonwealth as if
40 acquired thereunder.
END QUOTE
.
This too is a misconceived statement in that the Framers of the Constitution made clear that any
property acquired within s.85 of the constitution would remain to be under State laws, for so far
45 they were not transferred in right of “sovereign” to the Commonwealth, and hence any property
of which the Commonwealth is the “proprietor” and not the “sovereign” can be taxed where they
are leased out. Likewise State property leased out also can be subjected to taxation as the
exclusion of s.114 goes to “PUBLIC PURPOSES” held properties and not those held for
commercial gain.
50 Hence, any State Crown land that is leased out or otherwise is permitted to be used by a person
(this includes a corporation) for non “PUBLIC PURPOSES” can be subjected to taxation.

While it may be held that any kind of cult/religion is for “PUBLIC PURPOSES” the truth is
that, as set out below, many are not at all and hence the status as NON PROFIT (NOT-FOR-
PROFIT) is misused by this also.
.
5 In my view the system of NON PROFIT (NOT FOR PROFIT) registration is rorted far too
much.
to give an example:
Some ten years ago one of my sons had completed his apprenticeship to become a butcher and so
joined a company to complete his work experiences. He commenced to work for a butcher, with
10 whom the company had placed him with, but after about three weeks was advised there no more
work. My son then approached Centrelink for dole payments but was refused because he was
still employed with the company (that is the NOT-FOR-PROFIT company, at least this was so
claimed. This even so the company itself issued a written statement that there was no work for
my son. In October 2000 my son then found himself a job with a butcher and while he was still
15 working there the Industrial Relation Commission was dealing with my son’s complaint, and I
provided all relevant details, including the written statement that they had no work and that
likewise to my understanding about another 40 or so apprentices all were left in similar
circumstances as my son. As such, as I understood it to be it was an elaborate con-job where the
Commonwealth was paying this NOT-FOR-PROFIT company special bonuses of about
20 $4,000.00 each apprentice even so none of the apprentices were being provided with any further
employment and were locked out from claiming and Centrelink benefits. The States Industrial
Relations Commission held that my son was still employed by this company (now January 2001)
but as from the date of the hearing no longer was. Now, excuse me my son had been working
since October 2000 full time with a butcher so how on earth was this possible that he was still
25 working till January the following year for a company where he had not been paid since august
2000 a cent.
I understand that this kind of rot is going on and as such teenagers are so to say “sucked in” to
sign up for an apprenticeship but the n after a few weeks told there is no work and then this so
called NOT-FOR-PROFIT company collects in excess of $4,000.00 for this!
30 When one consider this to be about 40 times $4,000.00 = 160,000.00 then one may wonder if this
NOT-FOR-PROFIT company really is operating as such as per registration!
.
Likewise we have all kinds of NOT-FOR-PROFIT companies operating that is to collect
monies for the sick, the age, the invalid, etc, and often less then 5% of the monies collected is
35 then actually channeled to those for which the monies were collected and at time not a cent at all.
There simply seems to be no financial accountability for being a NOT-FOR-PROFIT
company!.
In my view, the Commonwealth of Australia should in the first place never rely upon State based
registrations as the Framers of the Constitution made clear that any corporation should be dealt
40 with by the Commonwealth within s.51(xx) as to ensure that all companies were subject to the
same legal provisions.
Further, none of the States therefore can validly register any company because it offend the
purpose of s.51(xx).
.
45 In my view, the Commissioner of Taxation should have all access to how NOT-FOR-PROFIT
companies operate financially and how monies were disposed off and the commonwealth must
set guidelines that a certain minimum percentage of monies raised must be provided to those for
whom the monies was collected and not that 95% or more is deducted from the collection as
overhead cost for the so called NOT-FOR-PROFIT companies
50 .

We have people donating money and then writing it off as TAX DEDUCTIONS where in fact
none may actually find it’s way to any charitable institutions because it is all claimed as overhead
cost by the NOT-FOR-PROFIT companies.
.
5 Generally the ordinary citizen who works hard to earn an income is paying a lot of taxes and
some of the riches people around Australia pay next to nothing because the way they can deduct
their income. Then the system is not for “PUBLIC PURPOSES” to provide NOT-FOR-
PROFIT companies with TAX EXEMPTIONS to the contrary is undermines the entire
meaning and intention to use it for “PUBLIC PURPOSES”.
10 .
Let’s us use an example:
Jo Blow I a fictitious identity) runs a NOT-FOR-PROFIT company and makes a fortune
on income. He obviously has to pay tax so he donates money to his own NOT-FOR-
PROFIT company by this he reduces his taxable income by TAX DEDUCTION and still
15 keeps the money!
.
In my view the term NOT-FOR-PROFIT is grossly abused and misused and too much money is
so to say milked out of it. By this pay-as-your earn taxpayers are the ones having to make up the
shortfall in taxation revenue collected that could have been collected had this rorting been
20 stopped.
.
The following quotation perhaps may assist to consider what really is a NON PROFIT (NOT
FOR PROFIT) organization about.
***************************************************************************
25 *************************************
The OBLIGATIONS to maintain registration for NON PROFIT (NOT-FOR-PROFIT)
*************************************
Any organization , club, association, etc, that is registered as NON PROFIT (NOT-FOR-
PROFIT) shall be obligated for the duration of such registration t:
30  not engage in any unlawful conduct of any kind
 shall not have any person working more then maximum 10 hours in total during any week
as volunteer work
 Shall keep a record of each and every person who works as a volunteer and have each
volunteer signing at commencement of volunteer work and at conclusion of such
35 volunteer work and for the total hours worked at completion of the volunteer work. With
such records to be in triplicate with one for the volunteer, one to be kept in a numbered
page book and one to be forwarded within 24 hours to the Taxation Commissioner.
 That all and any property held in possession and or under its authority is open for
inspection by Authorities (State and/or Federal) as to inspect the conditions of any
40 workplace and compliance with any relevant legislative provisions.
 That no one shall be deprived of his/her liberty of entering and/or leaving the premises
 That no involvement or otherwise any conduct will be engaged into which may be
deemed to be against the ordinary standards of society.
 Where there is any dispute between a volunteer and management then such dispute must
45 be reported to the relevant authorities for an independent arbitration.
 No child under the age of 14-years shall be permitted to be engaged in any form of
volunteer work of more then 2-hours a week.
 Volunteers shall be provided with appropriate work facilities ordinary available to paid
employees.
50  No volunteer shall be subjected to any harsh and/or undue punishment and all and any
punishment must be in a reasonable manner as is ordinary applicable to a paid employee.
 Any non-voluntary employee must be paid a minimum wage as provided for by law.
 For the duration of the registration no conduct of stalking or perceived stalking,
following, or other conduct that might be detrimental to a person will be engaged in.
 No personal records, other then those ordinary relevant for record keeping of an
5 employee or a volunteer will be recorded and/or kept regarding any person.
 No conduct will be engaged into that to a FAIR MINDED PERSON may be perceived
to be conduct unbecoming to a NON PROFIT (NOT-FOR-PROFIT) organization,
club, organization, etc.
 Any property and cost incurred in relation to it, being it maintenance or otherwise shall
10 not be subject to any entitlement of NON PROFIT (NOT-FOR-PROFIT) registration
unless such properties are reasonable accessible to Authorities for inspection and do not
contain any area’s that may not be deemed to be for “PUBLIC PURPOSES”.
 No financial contributions of any kind shall be made directly or indirectly to any other
NON PROFIT (NOT-FOR-PROFIT) registered entity, etc.
15  All and any transfer of monies from a NON PROFIT (NOT-FOR-PROFIT) entity, etc,
shall be recorded with precise details as to whom it was transferred to and for what
purpose, etc, and to have been within the provisions for NON PROFIT (NOT-FOR-
PROFIT) purposes, other then ordinary payments to employees, etc.
 All and any payments (directly and/or indirectly), including any gifts, provided to
20 management, directly and or indirectly shall be kept on record setting out in what
relevance such payments were made and shall not be including any payments that might
be deemed by a FAIR MINDED PERSON and/or the relevant Authorities to be
excessive.
 All and any overhead cost shall not exceed 5% of the total monies collected/obtained and
25 any cost in excess to the 5% shall be subject to the relevant Authorities to authorize this.
 All and any legal obligations such as superannuation payments and other ordinary
payments in regard of any employee, regardless working voluntarily or not, shall be paid
within 7 days of the date this became due.
 No involvement by staff (including volunteers) or others at any premises owned or
30 otherwise held under authority of the NON PROFIT (NOT-FOR-PROFIT) registered
entity shall be entered into, including the collection, storing and transmission, that
involves peadophilia, or other material of images and/or sound recordings that may be
deemed by a FAIR MINDED PERSON and/or the Authorities to be unbecoming to the
conduct of a NON PROFIT (NOT-FOR-PROFIT) registered entity. Nor shall any
35 direct and/or indirect financial contribution be made in any way in regard of such material
and or equipment.
 No person shall be held at any premises owned and/or under control of a direct or
registered entity in excess of 24-hours unless any duration longer then 24-hours have
been approved by the relevant Authorities for specific purposes, subject to review by any
40 authority.
 Such further and other conditions that the relevant State and/or Federal Authorities may
stipulate at any time prior and/or during the registration being in place.
.
Any and all breach(es) of these conditions may entitle the Authorities to declare the registration
45 to be null and void and any taxes that otherwise would have been applicable if the NON
PROFIT (NOT-FOR-PROFIT) registration had never been in place then can be applied as the
Authorities may deem fit and proper, including any back taxes and/or penalties/fines, etc.
***************************************************************************
.
50 Clarification:

My 90-year old brother-in-law has his saying that he used to put monies in the collection basket
so the priest could use it to play cards.
There days one can often say that one can put monies in the collection basket so the churches can
pay off the victims of sexual abuse, etc. (see also below quotation regarding this involving
5 religious bodies).
This kind of conduct should never be permitted as monies used by NON PROFIT (NOT-FOR-
PROFIT) registered entities. It goes against the principle of for “PUBLIC PURPOSE”.
Why indeed should ATHEIST taxpayers have to make up for the monies forgone in taxes for
any NON PROFIT (NOT-FOR-PROFIT) registered entity where it is being used for paying
10 off (including the silence off) victims?
.
There are all kind of claims made against various direct or registered entities that I view require
to make any direct or registration conditional upon a proper conduct by such direct or
registered entity and where such direct or registered entity fails to comply then it is open to the
15 relevant authorities to declare the registration being invalid entirely and/or from a particular
period.
This then places the onus upon any NON PROFIT (NOT-FOR-PROFIT) registered entity to
so to say make sure to avoid any conflicts that could jeopardize its entitlement of a NON
PROFIT (NOT-FOR-PROFIT) registration, in particular that if the authorities conclude that
20 the r NON PROFIT (NOT-FOR-PROFIT) registered entity registration was a scam/sham then
the registration can be nullified from onset and all and any taxes that otherwise would have been
due and payable then are to be applied and so including any penalties, etc.
.
The issue is that a NON PROFIT (NOT-FOR-PROFIT) registered entity must show to be
25 worthy the registration as where it fails to conduct matters as ought to be done for “PUBLIC
PURPOSES” then an appropriate system should be in place to deal with such entities, while
those who are acting in the best interest of the general community are not suffering because of,
so to say, some rotten apple’s. For far too long this rot has gone on and it needs to be stopped and
the Commonwealth of Australia as well as the States should clamp down upon this ongoing
30 abuse and each within its own taxation sphere provide the appropriate conditions to seek to
ensure that NON PROFIT (NOT-FOR-PROFIT) registered entities do earn their rights to be
registered as a NON PROFIT (NOT-FOR-PROFIT) registered entity.
.
COMMISSIONER OF TAXATION v WORD INVESTMENTS [2008] HCA 55 (3 December
35 2008)
QUOTE
28. In the Court of Appeal, Walsh JA and Asprey JA (Wallace P dissenting) agreed
on the first point, but disagreed on the second. Contrary to the Commissioner's
submissions in the present appeal, Walsh JA (like Nagle J) did not construe the phrase
40 "charitable institution" as a single composite expression, but saw it as having two integers
– one to do with objects which were charitable, the second to do with "institutional"
characteristics. Thus he said[34]:
"the religious objects of the company must be regarded as
charitable objects.
45 But I do not think it was an 'institution'".
Walsh JA went on to deny that every company with charitable objects was a charitable
institution. The Commissioner submitted in this appeal that the "authorities and
dictionary references discussed by Nagle J and Walsh JA suggest that for an entity to be a
'charitable institution' it must possess a public character, purpose or object". The
50 authorities and dictionary references do not in fact suggest this. Walsh JA summarised an
argument of counsel which assumed that the word "institution" included "a notion of
something which has a public character or serves a public purpose", but he rejected the
argument which made that assumption[35]. If Walsh JA, despite that rejection, was
intending to adopt counsel's assumption, the Commissioner did not explain why Word's
purpose of advancing religion – a charitable purpose having, ex hypothesi, benefit to the
5 public, and carried out on a substantial basis financially speaking – caused it to lack a
public character or not to serve a public purpose.
END QUOTE
.
COMMISSIONER OF TAXATION v WORD INVESTMENTS [2008] HCA 55 (3 December
10 2008)
QUOTE
29. For these reasons, Christian Enterprises Ltd v Commissioner of Land Tax does
not support the Commissioner's position in this appeal.
30. Glebe Administration Board v Commissioner of Pay-roll Tax. The Commissioner
15 also relied on Glebe Administration Board v Commissioner of Pay-roll Tax[40]. It was
there held that the wages paid by the Board, a body corporate constituted under the
Church of England (Bodies Corporate) Act 1938 (NSW), were not exempt from pay-roll
tax on the ground that the exemption given by the Pay-roll Tax Act 1971 (NSW), s 10(b),
for wages paid by "a religious ... institution" was not applicable. A majority of the Court
20 of Appeal of the Supreme Court of New South Wales (Priestley JA, McHugh JA
concurring) viewed the Board as "a statutory corporation doing commercial work within
limitations fixed by reference to religious principles"[41] and construed s 10(b) as not
being aimed at "exempting from liability to pay-roll tax wages paid to persons
substantially engaged in commercial activity."[42]
25 31. That case, then, is a decision about a particular statute different from the one
under consideration in this appeal, and a decision about a different entity. In contrast to
the view which the Court of Appeal took of the Board in that case, the correct view in this
case is that Word was using its powers to employ commercial methods to raise money for
its purposes: it was not doing commercial work within limitations fixed by reference to
30 religious principles.
32. A final argument. The Commissioner sought leave to rely on an argument not put
before the Full Court that the conduct by Word of its investment arm alone prevented it
from being a charitable institution. That leave should be granted, but the argument should
be rejected for the reasons stated above.
35 33. Conclusion. Nothing in the authorities or arguments relied on by the
Commissioner suggests that Word is not an "institution" in the senses approved in
Stratton v Simpson[43]:
"'an establishment, organization, or association, instituted for the
promotion of some object, especially one of public utility,
40 religious, charitable, educational etc.'[[44]] ... 'an undertaking
formed to promote some defined purpose ...' or 'the body (so to
speak) called into existence to translate the purpose as conceived in
the mind of the founders into a living and active principle'.[[45]]"
Accordingly, subject to the Commissioner's other arguments, it is to be concluded

45 that Word is a charitable institution.
END QUOTE
.
Again, while s.116 doesn’t prevent the States as to legislate in regard of religion, it cannot
however use State legislation as to undermine either directly or indirectly the Commonwealth of
50 Australia constitutional provided legislative powers to collect taxes in a uniform manner

through the commonwealth irrespective of it being a religious organization or otherwise. As
such, for Commonwealth purposes any registration that relates to “religion” must be disregarded.
It means that any NON PROFIT (NOT-FOR-PROFIT) State registration must be re-
assessed for Commonwealth purposes and any consideration must disregard any religious
5 purposes.
.
The following is a quotation about how “PUBLIC PURPOSES” is being misused and to avoid
to mention any particular State in the commonwealth of Australia a foreign example has been
used;
10 .
http://www.downtoearth.org.in/full6.asp?foldername=20081015&filename=led&sec_id=3&sid=
1
QUOTE
Travesty of public purpose
15
State governments offer incredulous incentives to lure Tata
IN THE last few days Maharashtra and West Bengal witnessed two diametrically opposite
developments. In Maharashtra, for the first time in the history of this country, affected
20 farmers voted in a referendum on the upcoming Reliance special economic zone (SEZ).
Initial results suggest that the majority voted against the SEZ. In Singur, Tata’s plans kept
slipping into a deeper imbroglio by the day. Several state governments lined up to lure the
company as Tata seriously considered moving out—each one trying to outdo each other in
terms of offering incentives and freebies. Soon as West Bengal made some parts of the
25 ‘secret’ deal between the state and the company public, Tata Motors moved the High Court
obtaining a restraining order.
Tata’s lawyers argued that basically the agreement between them and the state government
was a trade secret. This means that the Nano project is private commercial venture.
30 Ironically the state government had acquired land for the project invoking the “public
purpose” law. The state government and company will have to come clean about what
exactly is the Nano project. If it is a commercial venture the company must directly need
deal with the farmers. And if it is indeed a project meant to serve the public purpose, details
of the agreement must be immediately made public.
35
What is clear from the deal between the West Bengal government and Tata motors is that
state government are trying to outdo each other to attract investments. This is a race right to
the bottom. The moment Tata Motors threatened to walk away from Singur, several state
governments came forward. The lure of big-ticket project is such that governments are
40 willing to forgo taxes, forcibly acquire land, give subsidized water and electricity, give
capital subsidies and put thousands of security personnel to man the project. In all this,
industries are having free ride on public money. This is cheap industrialization. Where not
only states are giving fiscal subsidies, they are subsidizing the natural resources—land,
water, and energy. In a single economic entity that India is, competition between states, by
45 the way of subsidizing industrialization, is neither good for economy nor is it good for
environment. And it surely is not for ‘public purpose’.
END QUOTE
.
Federation came about because the Framers of the constitution desired to make interstate trade
50 and commerce free from any restrictions. (See s.51.(i) of the constitution for this also. We find
however that State government design all kind of tax exclusions (even so on State basis) and
other benefits which really is undermining the concept of federation. It is all done in the name to

poach a potential investor and often “eminent domain” powers are used and misuse/abused to
achieve this. This kind of conduct is not for “PUBLIC PURPOSES”.
.
Version No. 001, Anglican Trusts Corporations Act 1884, Act No. 797/1884
5 Version incorporating amendments as at 9 November 2000
QUOTE
12B. Joint use or ownership of church trust property
(1) If an Act of the Synod of a diocese provides for a scheme of co-operation to be
entered into—
10 (a) with or involving a church of another denomination or any congregation or
activity of such a church; and
(b) for the use of specified real or personal property vested in the trusts
corporation of the diocese—
the trusts corporation may permit that property to be used, managed and
15 administered under and in connection with that scheme during its continuance in
such a manner and on such conditions as are specified in the scheme.
END QUOTE
.
The danger, as I view it is that the property could be used for purposes other then “PUBLIC
20 PURPOSES” and as such the lack of limitations set by the state allows technically the property
to be used for any public venture, such as a car parking facility to be conducted by a private
company say with the assurance that church goers can have free parking while for the rest of
people attending they will pay commercial parking fees. In my view this would essential amount
to a “PRIVATE PURPOSE” and not to a “PUBLIC PURPOSE” usage and should not be
25 exempted from ordinary taxation laws merely because it happened to be on a church property.
Further, because the act was a 1884 colonial Act but was updated since federation the
Commonwealth is not bound either to consider the Act as such because the Framers of the
Constitution made clear that any colonial Act amended since federation would be as like any
ordinary State Act, whereas an un-amended colonial Act, that is since federation, remains
30 applicable.
.
Version No. 001, Anglican Church of Australia Constitution Act 1960
Act No. 6626/1960, Version incorporating amendments as at 17 August 2001
QUOTE
35 1. Short title
This Act may be cited as the Anglican Church of Australia Constitution Act
1960.
2.Constitution to have force and effect

40 The provisions of this Act and of the Constitution and of any canon or rule made
under the Constitution shall have full force and effect notwithstanding anything in
the Church of England Act 1854:
Provided that this section shall not prejudice or affect the previous operation of the
said Act or any proceeding matter or thing lawfully done or suffered under the said
45 Act before this Act comes into operation.
END QUOTE
.
The 1-4-2008 correspondence (reproduced below) to Federal Education Minister and Deputy PM
Julia Gillard as well as the 8 July 2008 correspondence (reproduced below) to Mr Kevin Rudd
PM should be considered also.
.
5 U.S. Supreme Court, Kohl v. United States, 91 U.S. 367 (1875)
QUOTE
Neither of these cases denies the right of the federal government to have lands in the
states condemned for its uses under its own power and by its own action. The question
was whether the state could take lands for any other public use than that of the state. In
10 Trombley v. Humphrey, 23 Mich. 471, a different doctrine was asserted, founded, we
think, upon better reason. The proper view of the right of eminent domain seems to be
that it is a right belonging to a
Page 91 U. S. 374
sovereignty to take private property for its own public uses, and not for those of
15 another. Beyond that, there exists no necessity, which alone is the foundation of the
right. If the United States have the power, it must be complete in itself. It can neither be
enlarged nor diminished by a state. Nor can any state prescribe the manner in which it
must be exercised. The consent of a state can never be a condition precedent to its
enjoyment. Such consent is needed only, if at all, for the transfer of jurisdiction and
20 of the right of exclusive legislation after the land shall have been acquired.
It may therefore fairly be concluded that the proceeding in the case we have in hand was a
proceeding by the United States government in its own right, and by virtue of its own
eminent domain.
END QUOTE
25 .
QUOTE
Mr. KINGSTON.-Is not the supremacy of the United States Government a little
different from the supremacy of our proposed Federal Government?
30 Mr. ISAACS.-Not in this respect. The supremacy, as far as the powers committed to it
are concerned, would, in this respect, I apprehend, be exactly the same as the Supremacy of
our Commonwealth Government in relation to its powers. In the case of Kohl v. United
States, which was decided in 1875, on this very question of the right of the United States
Government to compulsorily take property within the state for its public purposes, the court
35 said this:-
It has not been seriously contended during the argument that the United States
Government is without power to appropriate lands or other property within the states
for its own uses, and to enable it to perform its proper functions. Such an authority is
essential to its independent existence and perpetuity. These cannot be preserved if the
40 obstinacy of a private person, or if any other authority, can prevent the acquisition of
the means or instruments by which alone governmental functions can be performed.
The powers vested by the Constitution in the General Government demand for their
exercise the acquisition of lands in all the states. These are needed for forts, armories,
and arsenals, for navy yards and light-houses, for custom-houses, post-offices, and
45 court-houses, and for other public uses; If the right to acquire property for such uses
may be made a barren right by the unwillingness of property holders to sell, or by the
action of a state prohibiting a sale to the Federal Government, the constitutional
grants of power may he rendered nugatory, and the Government is dependent for its
practical existence upon the will of a state, or even upon that of a private citizen. This
50 cannot be. No one doubts the existence in the state Governments of the right of
eminent domain-a right distinct from and paramount [start page 261] to the right of
ultimate ownership. It grows out of the necessities of their being, not out of the tenure
by which lands are held. It may be exercised, though the lands are not held by grant
from the Government, either mediate'y or immediately, and independent of the
5 consideration whether they would escheat to the Government in case of a failure of
heirs. The right is the offspring of political necessity; and it is inseparable from
sovereignty. unless denied to it by its fundamental law. Put it is no more necessary for
the exercise of the powers of a state Government than it is for the exercise of the
conceded powers of the Federal Government. That Government is as sovereign within
10 its sphere as the states are within theirs. True, its sphere is limited. Certain subjects
only are committed to it; but its power over those subjects is as fall and complete as is
the power of the states over the subjects to which their sovereignty extends. The
power is not changed by its transfer to another holder.
Then the court went on to say-
15 But, if the right of eminent domain exists in the Federal Government, it is a right
which may be exercised within the states, so far as is necessary to the enjoyment of the
powers conferred upon it by the Constitution.
The whole judgment proceeds in that way. It has been followed in several cases, and I
think it has been laid down more than once in express terms that, for the purpose of
20 carrying out the powers expressly given to the federal authority in the Constitution, the
right of eminent domain is an essential attribute, and therefore I do not entertain the
slightest doubt that, as in that case, and as in several other cases, the United States
Government has, even without the consent of the state, taken land so far as it was necessary
for the exercise of its public duties, we should have the same right here. I will now proceed
25 to show the meaning of this sub-section. This sub-section does not say that the Federal
Government is to have the power to take that land. It assumes that the Federal
Government has that power, but when the Government does take land, compulsorily
or by purchase, in a state as its possession, it takes that land certainly by virtue of its
sovereign power of eminent domain, that is, the highest dominion. But it does not hold
30 that land as sovereign, it holds the land as proprietor. Now, where it holds the land
merely as proprietor, without the consent of the state being given to it, it is quite plain
that the jurisdiction of the state should run, except, of course, so as not to interfere
with the performance of the governmental functions of the Federal Government. But,
as far as punishing crime is concerned, as far as any other ordinary state supervision
35 relates, not inconsistent with the performance of the supreme functions of the
Commonwealth, the ordinary state law will run. But the United States have provided,
and we, I understand, propose to provide here, that, where the state consents to the
Federal Government acquiring any land, either by purchase or compulsorily, it
thereby consents, and that consent is equivalent to the admission of the right of the
40 Federal Government to exercise exclusive jurisdiction in respect to that particular
portion of territory. And if the state does not choose to give its consent, it says, in
effect-"You may take this land, it is true, by virtue of your sovereign right, for your
sovereign powers, but you hold it as proprietor; you can carry on your post-office,
your court-house, or anything you please, but as regards ordinary state laws outside
45 those functions our state laws prevail. Where the state, however, is asked by the
Federal Government to consent to the excision of a piece of land from its own
territory for governmental purposes, and does consent, then the exclusive right of the
Federal Government to govern that portion of land attaches to it, and this is what the
sub-section we are now considering intends to enact. Therefore, I think that the leader of
50 the Convention is right in not pressing this amendment, and that we should be doing well to
keep in the words "with the consent," because it does not relate to the acquisition of
property, but to the exercise of jurisdiction over the property when it is acquired.
The amendment was withdrawn.

END QUOTE
5 .
When considering American decisions one has to keep in mind that it originates out of a total
different legal structure and so it cannot be used as such in the Commonwealth of Australia but it
is clear that the U.S.A. nullifies any FEE SIMPLE title holing rights where the U.S. Supreme
Court held in Wayne County v. Hathcock (2004) as to PROHIBIT the transfer of privately
10 owned property to another private person in this case a company) for “public purposes”
overriding the Poletown decision, as subsequently to the Kelo v City of London decision the
private company ones having obtained the property abandoned the project all together and it now
lies as private wasteland As such this also underlines that there is a danger to use acquisition for
“public purposes” as in the end it may work counter productive as was discovered in the Kelo v
15 City of London case subsequent aftermath. And the Wayne County v. Hathcock (2004) clearly
rectified the gross miscarriage of justice that had been inflicted upon many since the Poletown
decision, at least for those who are affected since the Wayne County v. Hathcock (2004)
decision. The State having used its position of “eminent domain” to be able to achieve
employment and to have an increase of taxes and other benefits in the end in real life ended up
20 loosing residents from the area, not getting any increase of employment, as the company scaled
down its existing production already held there, and the State therefore ended up with a reduced
income. What this underlines is that what might be perceived as being in the “public interest”
may not at all eventuate as such but might in fact become an injury to the “public interest”
.
25 http://www.glossary.com/reference.php?q=Fee
QUOTE
Fee simple is an estateAt common law, an estate is the totality of the legal rights, interests,
entitlements and obligations attaching to property. In the context of wills and probate, it
refers to the totality of the property which the deceased owned or in which some interest
30 was held. It may also refer to an estate in land.estate in land in common lawCommon law is
a type of legal system in which the law is created and/or refined by courts on a case-by-case
basis. In resolving a legal dispute, an "ideal" common law court looks to precedent of other
courts. If a similar dispute has been resolved in the past, the court is bound to follow the
reasoning used in the prior decision (this principle is known as stare decisis). If, however,
35 the court finds that the current dispute is fundamentally distinct from all previous cases, it
will resolve the matter itself, with reference ...common law.
END QUOTE
.
http://www.ij.org/index.php?option=com_content&task=view&id=1360&Itemid=165
40 QUOTE
County of Wayne v. Hathcock
Michigan Supreme Court Halts Eminent Domain For "Economic Development": Court
States Poletown Was "Erroneous" (IJ amicus)
45
Anyone who owns a home, a small business or a piece of property became a whole lot
more secure in those possessions on July 30, 2004. That was when the Michigan Supreme
Court released a unanimous decision ruling unequivocally that the government may not use
eminent domain to take private property because someone else’s use of the property might
50 be more profitable. Although many observers were hoping for a good decision, the
unanimous ruling in County of Wayne v. Hathcock crossed political lines and surpassed all
expectations.
The Court unanimously overruled the infamous Poletown decision and caused a seismic
shift in the legal battle between home and business owners, on the one side, and an unholy
5 alliance of tax-hungry bureaucrats and land-hungry developers on the other.
Decided in 1981 by the Michigan Supreme Court, Poletown was the first major decision in
the United States upholding the use of eminent domain for “economic development”—
increasing tax revenues, jobs and the local economy generally.
10 END QUOTE
.
http://www.news.harvard.edu/gazette/2004/11.18/11-domain.html
QUOTE
Jerold Kayden, the Frank Backus Williams Professor of Urban Planning and Design at the
15 HGSD, talks about the 'very tricky issue' of eminent domain. (Staff photo Rose
Lincoln/Harvard News Office)
Right of 'eminent domain' challenged
Weighing the benefits of economic development
By Ken Gewertz
20 Harvard News Office
Susette Kelo is about to get her day in court.

This past September, the U.S. Supreme Court agreed to hear a case brought by Kelo and
her fellow homeowners in the Fort Trumbull neighborhood of New London, Conn.,
25 challenging the right of municipal authorities to take their houses by eminent domain.
The case has attracted much attention because it is the first time such a case has come
before the U.S. Supreme Court in 50 years and because it represents an opportunity to re-
examine what some regard as a growing trend by state and municipal authorities to abuse
the right of eminent domain.
30 Jerold Kayden, the Frank Backus Williams Professor of Urban Planning and Design at the
Graduate School of Design, has been watching this case carefully for what it may presage
about the future of property rights in the United States. On Nov. 16, he gave a talk on the
subject sponsored by the Kennedy School of Government's Taubman Center for State and
Local Government.
35 "Can a single-family house and land be taken through eminent domain and turned
over to a private developer to generate increased jobs and tax revenue? That is in
essence the case that is now coming before the Supreme Court," Kayden said.
Kayden explained that the right of eminent domain is sanctioned through implication by a
phrase in the Fifth Amendment to the U.S. Constitution. The phrase rounds out a list of
40 protections against unfair government interference, stating, "nor shall private property be
taken for public use, without just compensation." The nature of just compensation is always
at issue in such cases, Kayden said, with property owners asking for more and government
authorities offering less. What is more significant for Kelo v. New London, however, is the
interpretation of the words, "public use."
45 The issue first came before the Supreme Court in 1954 in the case Berman v. Parker
when a department store owner in Washington, D.C., sued to prevent the government
from demolishing his store to make way for an urban renewal project. Berman
contended that it was unconstitutional to take his property under those circumstances,
but the court ruled against him, saying that eminent domain was justified because the
50 project was in the interest of the community.
That case set the stage for other cases in which governments took the property of private
individuals not only for traditional public uses like highways, schools, or reservoirs, but
also to replace "blighted" areas with new construction expected to create new jobs and
bring in higher tax revenues.
For example, in the late 1970s, General Motors approached Coleman Young, then
mayor of Detroit, with a request to build a Cadillac plant in a residential
5 neighborhood known as Poletown. On the one hand, the plant would bring jobs and
generate tax revenues, but, on the other, a settled neighborhood would be destroyed.
"It was a terrible choice. How do you even begin to decide a case like this? In the end,
Young went along with General Motors, and the Michigan Supreme Court sided with
the government."
10 In deciding this case in 1981, the court ruled that the government's decision to take the land
was acceptable. But such cases are open to interpretation, a fact that was illustrated
earlier this year when the Michigan Supreme Court reversed its 1981 decision by its
ruling on a similar case, Wayne County v. Hathcock. The court ruled that the county
could not use eminent domain to take the property of people living near an airport to
15 clear the way for an economic development scheme known as the Pinnacle Project.
The court ruled that the land could be taken if, for example, it could be shown to be
blighted, but this was not the case.
Susette Kelo and the other residents of Fort Trumbull also firmly deny that their
property is blighted, but what is at issue here is whether property can be taken simply
20 because an alternative use of that property would produce greater economic benefits.
In the Fort Trumbull example, the city of New London, Conn., wants to replace the
residential area with offices and parking, among other things.
"It could be argued that a neighborhood of single-family houses is simply
underperforming property," Kayden said in answer to a question. "It doesn't
25 generate very much revenue compared with other uses. Consequently, one might label
it as blight."
Kayden would not predict how the U.S. Supreme Court would rule on this case, although
he did speculate about the many different aspects of the case that the court might weigh in
making its decision. The court might reconsider the purpose of the Constitution's "just
30 compensation" clause, perhaps taking into account the value of the individual's identity and
history or the "demoralization costs" incurred when people are forced to give up their
homes to make way for a hotel or a block of high-priced condos. Or the court may shift the
burden of decision back on the state courts.
"It's a tricky issue," Kayden said.
35 END QUOTE
.
As a CONSTITUTIONALIST I am currently also researching other matters in that I discovered
that in the State of Victoria VCAT (Victorian Civil and Administrative Tribunal) is misusing and
abusing its legal processes in regard of Mr Francis James Colosimo and as result I was requested
40 by Mr Francis James Colosimo to assist him and I am representing him in these matters.
From the material researched by me there can be no doubt that historically over more then two
thousand years States “the right of eminent domain” existed for “public interest” however as a
CONSTITUTIONALIST I am concerned as to if this is applicable to the Commonwealth of
Australia and indeed so to the States,. Too often lawyers (including judges) assume a certain
45 legal position regardless if this actually is so constitutionally valid. A clear example is the issue
of “Australian citizenship” where since 1948 this is held to be an Australian nationality as such
even so constitutionally this is utter and sheer nonsense, and for the record this was extensively
litigated by me during a 5 year epic legal battle before the courts and in which I comprehensively
defeated the Commonwealth of Australia and details have been published by me in various books
50 pin the INSPECTOR-RIKATI® series on certain constitutional and other legal issues.
.

You may be aware that the EUROPEAN UNION is a POLITICAL UNION amongst most
states in EUROPE It has a president and a constitution which is signed by all Members of the
EUROPEAN UNION. Yet, every country that has a membership nevertheless retained its own
constitutional format and many still have their own MONARCHY in place. Now, try to imagine
5 that the EUROPEAN UNION were to invoke “the right of eminent domain” upon basis that it
has “sovereign” powers by it’s constitution and as such could deal with properties (including
FEE SIMPLE title holdings) as it pleased. One would likely get an outburst of protest because it
would be held that while they are members of the EUROPEAN UNION it doesn’t mean that the
territories within each member country is then up for grabs for other countries.
10 .
Lets Look then at the Commonwealth of Australia. It is not a country and cannot be turned into
some country as Australia is the mainland continent and was so before the federation but it
cannot be deemed to be the commonwealth of Australia as the Commonwealth of Australia
includes territories that never were part of the mainland Australia. Indeed, as the Framers of the
15 Constitution made clear that if Queensland were not to join in with the federation then it still
would be in Australia, just not be part of the Commonwealth of Australia. Therefore we must be
very careful to understand that the Commonwealth of Australia is nothing more but a
POLITICAL UNION and cannot be a country and neither is or was a domain, colony, etc.
If you do not believe me then let the Framers of the Constitution explain what it is about!
20 .
QUOTE
Mr. SYMON ( South Australia ).-
In the preamble honorable members will find that what we desire to do is to unite in one
25 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
30 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.
35 END QUOTE
.
Unless you can point out any s.128 referendum that somehow changed this, it seems to me that
you have to accept that the Commonwealth of Australia is and remains to be a POLITICAL
UNION.
40 .
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.
45 END QUOTE
.
I venture to say that these are not necessary or incidental to the execution of any powers.
50 The Commonwealth will come into existence under this Constitution plus English law,

one of whose principles is that the Queen can do no wrong. That is the foundation on
which the Constitution is established.
END QUOTE
.
QUOTE Mr. BARTON (New South Wales).-
Then, again, there is the prerogative right to declare war
and peace, an adjunct of which it is that the Queen herself,
or her representative, where Her Majesty is not present,
10 holds that prerogative. No one would ever dream of saying
that the Queen would declare war or peace without the advice
of a responsible Minister.
END QUOTE
.
QUOTE
Sir SAMUEL GRIFFITH: At all events, I would ask hon. members to pause before they
determine upon asking the Queen to surrender all her prerogatives in Australia. For my
part, I believe that all the prerogatives of the Crown exist in the governor-general as
20 far as they relate to Australia. I never entertained any doubt upon the subject at all-that is
so far as they can be exercised in the commonwealth.
END QUOTE
.
Unlike the Queen the governor-General cannot trot off to foreign countries and represent the
25 Commonwealth of Australia, as the Governor-General power’s to represent the Queen is limited
to the boundaries of the Commonwealth of Australia and as the Framers of the Constitution made
clear the moment the governor-General leave the Commonwealth of Australia then the
Governor-General must pay from his/her own pocket the salary of the acting Governor-General.
.
30 While the Governor-General exercises the prerogative powers for the queen in Her Majesties
absenteeism it doesn’t make the Governor-General the Head of State. The governor is an
appointed “agent” for the Queen as is any other “Governor-General” or “Governor”! As such
neither can the Governor-General run up a reported $4000,000.00 travelling bill on overseas trips
at cost of taxpayers because any trip outside the Commonwealth of Australia is to be regarded of
35 a personal nature, beyond the Governor-General prerogative representative powers.
.
http://www.theaustralian.com.au/news/nation/queen-takes-on-bryce-in-right-royal-title-
fight/story-e6frg6nf-1225829443148
QUOTE
40 Queen takes on Bryce in right royal title fight

Tom Dusevic, National chief reporter
From: The Australian
February 12, 2010 12:00AM
FOLLOWING the triumphant tour of Australia by its potential future king, Prince
45 William, the Queen has reasserted her claim on the title "head of state" of Australia
by using it in the announcement of her address to the UN in July.
Despite the Governor-General, Quentin Bryce, being dispatched to Africa by the Rudd
government last year under the description "Australia's head of state", yesterday a
spokesman for Kevin Rudd avowed that the Queen held that position.
The title fight -- pitting the two female leaders, the sovereign and her representative, head
5 to head -- revives a debate that raged around the republic referendum more than a decade
ago.
The trigger for the confusion is the announcement by Buckingham Palace that Her Majesty
Queen Elizabeth II will be addressing the UN General Assembly in July as Australia's
"head of state", a statement that has taken Canberra's diplomats, officials and constitutional
10 combatants by surprise.
In recent years, particularly after the debate and referendum on a republic in 1999, the local
convention has been to recognise that the Governor-General is Australia's head of state and
that Elizabeth II is our sovereign.
Now, the Governor-General, who began her term at Yarralumla in September 2008, is
15 confronted by a mix of interpretations and contradictory statements by political leaders and
Buckingham Palace regarding her official status.
Last March, in announcing Ms Bryce's series of state and official visits to nine African
countries, the Prime Minister said:
"A visit to Africa of this scale by Australia's head of state will express the seriousness of
20 Australia's commitment to heightened political and diplomatic engagement, and to building
our bilateral relationships with African countries and the continent as a whole."
That designation has been a curious bulwark for supporters of the monarchy, including
Opposition Leader Tony Abbott.
He is an advocate for retaining the present arrangements by arguing, as do other prominent

25 constitutional monarchists, that the role of governor-general has evolved, that Australia has
a native-born head of state, and therefore does not need to become a republic.
Deputy Opposition Leader Julie Bishop, who has been a strong supporter of a republic and
therefore at odds with her leader, has also described Ms Bryce as Australia's head of state.
But Mr Rudd, who identifies himself as a republican and addressed the UN in 2008 and last
30 year, now says the Queen is Australia's head of state.
Asked by The Australian yesterday to answer questions about her forthcoming UN address
and Australia's input, a spokesman for Mr Rudd said: "Australia's head of state is HM
Queen Elizabeth II, represented by the Governor-General HE Ms Quentin Bryce AC. The
government is aware of the plan for the Queen to address the United Nations.
35 "The Queen's speech is a matter for the Queen, but Australia will ensure the Queen is aware
of Australia's views in advance of the speech."
Canberra's bureaucratic and political officials were jolted out of the capital's summer haze
on Australia Day by a cable from New York headed: "United Nations: General Assembly --
Address by Australian Head of State."

The unclassified cable, for wide distribution, was written by Gary Quinlan, Australia's
ambassador and permanent representative to the UN, and before his appointment last year,
the senior adviser on foreign affairs, defence and national security in the Prime Minister's
office.
5 The cable outlined the Queen's schedule and the response of key UN figures to the news of
what will be her first address to the multilateral forum since 1957.
The title of Mr Quinlan's cable immediately caught the attention of Department of Foreign
Affairs and Trade officials and vice-regal watchers. "When I saw Quinlan's cable and
realised he was talking about the Queen and not the Governor-General, I immediately
10 thought, `That's muddying the waters'," a DFAT source said.
Some in Canberra believe the January 22 statement from Buckingham Palace was
overreach on the part of the Queen's officials, perhaps even a mistake.
Observers here have noticed a more activist and assertive role by the royal family and its
champions in recent times.
15 A source cites the reintroduction of imperial honours in New Zealand by Prime Minister
John Key, the recent successful visit to Australasia by Prince William, and the bitter row
between Canadian Prime Minister Stephen Harper and the country's Governor-General
Michaelle Jean about who is head of state, as evidence of the bid for resurgence by the
House of Windsor.
20 A spokesman for Buckingham Palace told The Australian yesterday that the reference to
the Queen as Australia's head of state "was used in a collective sense to refer to the Queen's
position in relation to the UN member states which are also realms".
"It was not intended to refer to the constitutional definition of the role of the Queen in
Australia in particular," the spokesman said. "The press release of January 22 is not a
25 policy statement but an information bulletin to describe the forthcoming event."
He added: "The Queen's position would of course take account of the various positions of
the realms."
A spokeswoman for Ms Bryce said yesterday: "This is not an issue the Governor-General
would comment upon."
30 END QUOTE
.
Taxpayers are entitled to know why the governor-General bills the taxpayers for her overseas
trips, etc, not being within her prerogative functions that are limited to the boundaries of the
Commonwealth of Australia!
35 .
Likewise taxpayers are also entitled to know why the unconstitutional, yes unconstitutional,
GOLD CARD and/or other perks being allowed to be used in breach of constitutional provisions
because a Member of parliament can only be receiving an “ALLOWANCE” FOR THE
DURATION OF HOLDING A SEAT and not prior to or after doing so.
40 .
QUOTE

Mr. ISAACS: I do not know. I am not prepared at the present moment to abandon all
claim to it. I am determined to go as far as necessary to have intercolonial freetrade in coal
as well as in every other commodity, if that can be done with fairness to the miners of
Victoria, and no undue abandonment takes place with regard to local development. I
5 certainly hold with my friends from New South Wales that we must have intercolonial
freetrade. I do not intend to support any proposal to interfere with that great principle. But I
am not satisfied that that principle would be departed from altogether if we still maintained
some power to develop an industry which is to a great extent local and of very great
importance. but with regard to mining for gold or silver or other metals, no question
10 whatever can arise. The colonies should have the fullest power to deal as they please
with those industries.
END QUOTE
.
Yet, if you consider the judgments of the High Court of Australia (such as in Commonwealth v
15 New South Wales [1923] HCA 34; (1923) 33 CLR 1 (9 August 1923))then somehow the
Commonwealth gained “sovereign” powers by virtue of s.85 or s.51(xxxi) even so this is not at
all as such applicable unless such properties were acquired for purpose of s.122 “sovereign”
powers application! N.S.W., albeit unconstitutionally, purportedly amended in 1902 its
constitution and likewise did other States, this despite of the following;
20 .
QUOTE
Dr. COCKBURN: All our experience hitherto has been under the condition of
parliamentary sovereignty. Parliament has been the supreme body. But when we
25 embark on federation we throw parliamentary sovereignty overboard. Parliament is
no longer supreme. Our parliaments at present are not only legislative, but
constituent bodies. They have not only the power of legislation, but the power of
amending their constitutions. That must disappear at once on the abolition of
parliamentary sovereignty. No parliament under a federation can be a constituent
30 body; it will cease to have the power of changing its constitution at its own will. Again,
instead of parliament being supreme, the parliaments of a federation are coordinate
bodies-the main power is split up, instead of being vested in one body. More than all
that, there is this difference: When parliamentary sovereignty is dispensed with,
instead of there being a high court of parliament, you bring into existence a powerful
35 judiciary which towers above all powers, legislative and executive, and which is the
sole arbiter and interpreter of the constitution.
END QUOTE
.
Again
QUOTE Dr. COCKBURN:
power of changing its constitution at its own will.
END QUOTE
45 .
Unless there was a State referendum approving an amendment to a State constitution the
amendment as such are without legal force.
.
Likewise, Queensland purportedly got rid of its upper house albeit in constitutional terms it still
50 exists as the purported amendment never was constitutionally permissible. Hence all Bills (that
purportedly became legislation) enacted but failing to have been passed by the upper house
technically is no legislation at all.
.
Without going into too many further details, as I view you already should have ample of details
so far to realise that while you may have grown up in the United States of America regarding
“eminent domain” powers and how it was applied, I urge you to realise that not only was this
5 changed in the U.S.A. with the Wayne County v. Hathcock (2004) case but because the
Commonwealth of Australia is not a confederation but a federation of dominions where the true
Parliament ids and remains to be the British Parliament
.
http://www.answers.com/topic/eminent-domain &
10 http://legal-dictionary.thefreedictionary.com/Right+of+eminent+domain
QUOTE
Inverse Condemnation
An increase in environmental problems has resulted in a new type of eminent domain
proceeding called inverse condemnation. In this proceeding, the property owner,
15 rather than the condemnor, initiates the action. The owner alleges that the
government has acquired an interest in his or her property without giving
compensation, such as when the government floods a farmer's field or pollutes a
stream crossing private land. An inverse condemnation proceeding is often brought
by a property owner when it appears that the taker of the property does not intend to
20 bring eminent domain proceedings.
END QUOTE
.
We have the current conduct by Mr Kevin Rudd PM about the hospitals and seemingly taking a
third of GST revenue to pay for it all and as I understand it foolish enough some Premiers are
25 falling for this rot. Premiers cannot agree to something that is unconstitutional;
.
QUOTE
Mr. WISE.-If the Federal Parliament chose to legislate upon, say, the education
30 question-and the Constitution gives it no power to legislate in regard to that question-the
Ministers for the time being in each state might say-"We are favorable to this law, because
we shall get £100,000 a year, or so much a year, from the Federal Government as a subsidy
for our schools," and thus they might wink at a violation of the Constitution, while no
one could complain. If this is to be allowed, why should we have these elaborate
35 provisions for the amendment of the Constitution? Why should we not say that the
Constitution may be amended in any way that the Ministries of the several colonies
may unanimously agree? Why have this provision for a referendum? Why consult the
people at all? Why not leave this matter to the Ministers of the day? But the proposal
has a more serious aspect, and for that reason only I will ask permission to occupy a
40 few minutes in discussing it.
END QUOTE
.
It must be clear that CoAG (Council of Australian Governments) therefore have no
constitutional powers to interfere with constitutional limitations.
45 .
QUOTE
U.S. Supreme Court
50 Olcott v. The Supervisors, 83 U.S. 16 Wall. 678 678 (1872)
Olcott v. The Supervisors
83 U.S. (16 Wall.) 678
ERROR TO THE CIRCUIT COURT FOR
THE EASTERN DISTRICT OF WISCONSIN
Syllabus
1. This Court will follow, as of obligation, the decisions of the state courts only on local
questions peculiar to themselves, or on questions respecting the construction of their own
5 constitution and laws.
2. Whether or not the construction and maintenance of a railroad owned by a corporation
and constructed and maintained under a statute of a state authorizing such construction
and maintenance is a matter in which the public has any interest of such a nature its to
warrant taxation by a municipal division of the state in aid of it is not such a question. It
10 is one of general law.
3. If a contract when made was valid under the constitution and laws of a state as they
had been previously expounded by its judicial tribunals and as they were understood at
the time, no subsequent action by the legislature or the judiciary will be regarded by this
Court as establishing its invalidity.
15 4. A railroad is it public highway. Being so, and thus a road for public use, a state may
impose a tax in furtherance of that use even though the road itself be built and owned by
a private corporation.
5. An act of the Legislature of Illinois, authorizing a vote of the people of a particular
county upon the question whether they would aid the building of a certain railroad, and if
20 they voted in favor of aiding authorizing the issue of county orders for money to aid in
the building, held, on an application of the principles just above stated to have been a
proper exercise of legislative authority, and the county charged on such orders issued by
it, and given to the road by way of donation.
Error to the Circuit Court for the Eastern District of Wisconsin, in which court Olcott
25 sued the supervisors of the County of Fond du Lac, Michigan, upon certain county orders
issued by the county February the 15, 1869, in pursuance of an Act of Assembly of the
state approved on the 10th of April, 1867, and entitled
"An act to authorize the
Page 83 U. S. 679
30 County of Fond du Lac to aid the completion of the Sheboygan & Fond du Lac Railroad,
and to aid the building of a railroad from the City of Fond du Lac to the City of Ripon."
This act authorized the people of the county to vote upon the question whether they
would aid the building of the railroads named; and provided, in case the vote should be in
favor of granting aid, that "county orders" should be issued as the roads should be
35 completed. The sixth section of the act was thus:
"If, under the provisions of this act, the said County of Fond du Lac shall furnish the aid
contemplated in this act, then the railroad companies, or their successors and assigns,
shall transport wheat upon the said roads upon the following terms for ten years: wheat
by the carload from the City of Fond du Lac, and from stations east thereof within the
40 County of Fond du Lac, to the City of Sheboygan, at a price not exceeding five cents per
bushel; and from the City of Ripon to the City of Sheboygan, at a price not exceeding
seven cents per bushel; and from all stations between the Cities of Fond du Lac and
Ripon to Sheboygan, at a rate pro rata with the freight from Fond du Lac to Sheboygan;
and the companies or corporations owning and building the said roads, their successors
45 and assigns, shall make such arrangements between themselves as shall give full effect to
the provisions of this section, and the rates of freight above limited shall also apply to the
companies owning or operating the said roads over and upon all other railroads where
said companies respectively run their cars for the transportation of freight."
A vote was taken under the act, and was in favor of granting the aid. The county orders
50 were accordingly issued in conformity with the act. They were all made payable to the
Sheboygan & Fond du Lac Railroad Company, or bearer, and those now sued on had
passed, bona fide, into the hands of Olcott.
In 1870, that is to say, subsequent to the issue of these orders, though prior to the
trial of this case in the court below, the Supreme Court of the State of Wisconsin, in
the
Page 83 U. S. 680
5 case of Whiting v. Fond du Lac County, [Footnote 1] held this act to be void, upon the
ground that the building of a railroad, to be owned and worked by a corporation in
the usual way, was not an object in which the public were interested, and therefore
that the act in question was void, for the reason that it authorized the levy of a tax
for a private and not a public purpose. The court there said:
10 "The question is as to the power of the legislature to raise money or to authorize it to be
raised, by taxation, for the purpose of donating it to a private corporation. We held, in
Curtis v. Whipple, [Footnote 2] that the legislature possessed no such power, and the
conclusion in that case we think follows inevitably in this, from the principles stated in
the opinion. The cases are not distinguishable, except in the single circumstance that the
15 corporation here, to which it is proposed to give the money, is a railroad company in
behalf of which the power of eminent domain has been exercised by the state for the
purpose of enabling it to secure the land over which to build its road. . . . But though a
railroad company may be, as to its capacity to assume and exercise in the name of the
state the power of eminent domain delegated to it, so far a public or quasi-public
20 corporation, yet in all its other powers, functions, and capacities it is essentially a private
corporation, not distinguishable from any other of that name or character. . . . The road,
with all its rolling stock, buildings, fixtures, and other property pertaining to it, is private
property, owned, operated, and used by the company for the exclusive benefit and
advantage of the stockholders. This constitutes a private corporation in the fullest sense
25 of the term. . . . And if we examine any book of authority on the subject, [Footnote 3] we
shall find that such is and always has been the rule of the law as to the corporate
character of such companies, notwithstanding the delegation of power of eminent
domain, and their consequent subjection in a certain degree to public use and
convenience. They are always classed among private corporations, such as banking,
30 insurance, and manufacturing corporations, and corporations for the building of bridges,
turnpikes, canals &c. . . . Our conclusion, therefore, is that though a railroad
Page 83 U. S. 681
company may possess this single exceptional corporate characteristic, it is nevertheless
essentially a private corporation, coming fully within the operation of the principles laid
35 down in Curtis v. Whipple, and that the taxation complained of cannot be sustained."
The court below, in this case, held that decision to be binding upon the federal courts, and
charged that the act under which the orders were issued was void. Judgment having gone
accordingly it was now here for review.
It may here be mentioned that by the Constitution of Wisconsin, the legislature of the
40 state has power to alter or repeal charters granted by it.
Page 83 U. S. 688
MR. JUSTICE STRONG delivered the opinion of the Court.
Whether the Act of Assembly of the State of Wisconsin, approved April 10, 1867, under
which the county orders or promissory notes sued upon, in this case, were issued, was a
45 lawful exercise of constitutional power, is the only question in the case. In the court
below, the jury was instructed in substance that the issue of the orders was unauthorized
and void and that the act of assembly above referred to was an unconstitutional exercise
of legislative
Page 83 U. S. 689
50 power. No other question was made at the trial, and no other is now presented to us for
our determination.

At the outset we are met by the fact that the supreme court of the state has decided the act
was unauthorized by the constitution. It was thus ruled in Whiting v. Fond du Lac
County. [Footnote 4] If that decision is binding upon the federal courts, if it has
established a rule which we are under obligations to follow, the matter is settled.
5 It is undoubtedly true in general, that this Court does follow the decisions of the highest
courts of the states respecting local questions peculiar to themselves, or respecting the
construction of their own constitutions and laws. But it must be kept in mind that it is
only decisions upon local questions, those which are peculiar to the several states, or
adjudications upon the meaning of the constitution or statutes of a state, which the federal
10 courts adopt as rules for their own judgments. That Whiting v. Fond du Lac County was
not a determination of any question of local law, is manifest. It is not claimed to have
been that. But it is relied upon as having given a construction to the constitution of the
state. Very plainly, however, such was not its character or effect. The question considered
by the court was not one of interpretation or construction. The meaning of no provision
15 of the state constitution was considered or declared. What was considered was the uses
for which taxation generally, taxation by any government, might be authorized, and
particularly whether the construction and maintenance of a railroad, owned by a
corporation, is a matter of public concern. It was asserted (what nobody doubts),
that the taxing power of a state extends no farther than to raise money for a public
20 use, as distinguished from private, or to accomplish some end public in its nature,
and it was decided that building a railroad, if it be constructed and owned by a
corporation, though built by authority of the state, is not a matter in which the
public has any interest, of such a nature as to warrant taxation in its aid.
Page 83 U. S. 690
25 For this reason it was held that the state had no power to authorize the imposition of
taxes to aid in the construction of such a railroad, and therefore that the statute
giving Fond du Lac County power to extend such aid was invalid. This was a
determination of no local question or question of statutory or constitutional construction.
It was not decided that the legislature had not general legislative power; or that it might
30 not impose or authorize the imposition of taxes for any public use. Now, whether a use is
public or private is not a question of constitutional construction. It is a question of
general law. It has as much reference to the constitution of any other state as it has to the
State of Wisconsin. Its solution must be sought not in the decisions of any single state
tribunal, but in general principles common to all courts. The nature of taxation, what uses
35 are public and what are private, and the extent of unrestricted legislative power, are
matters which, like questions of commercial law, no state court can conclusively
determine for us. This consideration alone satisfies our minds that Whiting v. Fond du
Lac County furnishes no rule which should control our judgment, though the case is
undoubtedly entitled to great respect.
40 There is another consideration that leads directly to the same conclusion. This Court has
always ruled that if a contract when made was valid under the constitution and laws of a
state, as they had been previously expounded by its judicial tribunals, and as they were
understood at the time, no subsequent action by the legislature or the judiciary will be
regarded by this Court as establishing its invalidity. [Footnote 5] Such a rule is based
45 upon the highest principles of justice. Parties have a right to contract, and they do
contract in view of the law as declared to them when their engagements are formed.
Nothing can justify us in holding them to any other rule. If, then, the doctrine asserted in
Whiting v. Fond du Lac County is inconsistent with what was the recognized
Page 83 U. S. 691
50 law of the state when the county orders were issued, we are under no obligation to accept
it and apply it to this case. The orders were issued in February, 1869, and it was not until
1870 that the supreme court of the state decided that the uses for which taxation was
authorized by the statute of April 10, 1867, were not public uses, and therefore that the
statute was invalid. Prior to 1870 it seems to have been as well settled in Wisconsin as
elsewhere that the construction of a railway was a matter of public concern, and not the
less so because done by a private corporation. That the state might itself make such an
5 improvement, and impose taxes to defray the cost, or exercise its right of eminent domain
therefor, was beyond question. Yet confessedly it could neither take property or tax for
such a purpose, unless the use for which the property was taken or the tax collected was a
public one. And it was also the undoubted law of the state that building a railroad or a
canal by an incorporated company was an act done for a public use, and thus the power
10 of the legislature to delegate to such a company the state right of eminent domain was
justified. In Pratt v. Brown, [Footnote 6] it was said by the supreme court of the state that
the incorporation of companies for the purpose of constructing railroads or canals affords
the best illustration of the delegation of power to exercise the right of eminent domain, by
the condemnation and seizure of private property for public use upon making just
15 compensation therefore. It is admitted that the only principle upon which such delegation
of power can be justified is that the property taken by these companies is taken for the
public use. Similar language was used and a decision to the same effect was made in
Robbins v. Railroad Company. [Footnote 7] In Hasbrouck v. Milwaukee, [Footnote 8] a
case where the right to tax for the improvement of a harbor was under consideration, the
20 court used this significant language:
"The power of municipal corporations, when authorized by the legislature to engage in
works of internal improvement,
Page 83 U. S. 692
SUCH AS THE BUILDING OF RAILROADS, canals, harbors, and the like, or to loan
25 their credit in aid thereof, and to defray the expenses of such improvements, MAKE
GOOD THEIR PLEDGES by an exercise of the power of taxing the persons and
property of their citizens, has always been sustained on the ground that such works,
although they are in general operated and controlled by private corporations, are
nevertheless, by reason of the facilities which they offered for trade, commerce, and
30 intercommunication between different and distant portions of the country, indispensable
to the public interests and public functions. It was originally supposed that they would
add, and subsequent experience demonstrated that they have added vastly, and almost
immeasurably, to the general business, the commercial prosperity, and the pecuniary
resources of the inhabitants of cities, towns, villages, and rural districts through which
35 they pass, and with which they are connected. It is, in view of these results, the public
good thus produced, and the benefits thus conferred upon the persons and property of all
the individuals composing the community, that courts have been able to pronounce them
matters of public concern, for the accomplishment of which the taxing power might
lawfully be called into action. It is in this sense that they are said to fall so far within the
40 purposes for which municipal corporations are created, that such corporations may
engage in, or pledge their credit for their construction."
So also in Soens v. Racine, [Footnote 9] where the validity of a law authorizing a local
tax to secure the lake shore was in question, the court discussed at length the nature of a
public use for which taxation was lawful, and ruled that the use was a public one though
45 only the property of some inhabitants of the city was saved, remarking that to determine
whether a matter is a public or merely private concern we have not to determine whether
or not the interests of some individuals will be directly promoted, but whether those of
the whole or the greater part of the community will be. And again, in Brodhead v.
Milwaukee, [Footnote 10] the court said:
50 Page 83 U. S. 693
"The legislature cannot create a public debt, or levy a tax, or authorize a municipal
corporation to do so, in order to raise funds for a mere private purpose. It cannot,
in the form of a tax, take the money of the citizen and give it to an individual, the
public interest or welfare being in no way connected with the transaction. The objects
for which the money is raised by taxation must be public, and such as subserve the
common interest and wellbeing of the community required to contribute. . . . To
5 justify the court in arresting the proceedings and declaring the tax void, the absence
of all possible public interest in the purposes for which the funds are raised must be
clear and palpable; so clear and palpable as to be perceptible by every mind AT THE
FIRST BLUSH."
All these expositions of the law of the state were made by its highest court before the
10 county orders now in suit were issued. They certainly did assert that building a railroad,
whether built by the state or by a corporation created by the state for the purpose, was a
matter of public concern, and that because it was a public use, the right of eminent
domain might be exerted or delegated for it, and taxation might be authorized for its aid.
It was the declared law of the state, therefore, when the bonds now in suit were issued,
15 that the uses of railroads, though built by private corporations, were public uses, such as
warranted the exercise of the public right of eminent domain in their aid, and also the
power of taxation.
We are not, then, concluded by a decision, made in 1870, that such public uses are
not of a nature to justify the imposition of taxes. We are at liberty to inquire what
20 are public uses, and what restrictions, if any, are imposed upon the state's taxing
power.
It is not claimed that the Constitution of Wisconsin contains any express denial of power
in the legislature to authorize municipal corporations to aid in the construction of
railroads, or to impose taxes for that purpose. The entire legislative power of the state is
25 confessedly vested in the General Assembly. An implied inhibition only is asserted.
Page 83 U. S. 694
It is insisted that, as the state cannot itself impose taxes for any other than a public
use, so the legislature cannot empower a municipal division of the state to levy and
collect taxes for any other than such a use, and it is denied that taxation to enable the
30 County of Fond du Lac to aid in the completion of the Sheboygan & Fond du Lac
Railroad is taxation for a public use. No one contends that the power of a state to tax, or
to authorize taxation, is not limited by the uses to which the proceeds may be devoted.
Undoubtedly taxes may not be laid for a private use. But is the construction of a railroad
by a company incorporated by a state for the purpose of building it, and endowed with
35 the state's right of eminent domain, a thing in which the state has, as such, no interest?
That the Legislature of Wisconsin may alter or repeal the charter granted to the
Sheboygan & Fond du Lac Railroad Company is certain. This is a power reserved by the
constitution. The railroad can, therefore, be controlled and regulated by the state. Its use
can be defined; its tolls and rates for transportation may be limited. Is a work made by
40 authority of the state, subject thus to its regulation, and having for its object an increase
of public convenience, to be regarded as ordinary private property?
That railroads, though constructed by private corporations and owned by them, are public
highways, has been the doctrine of nearly all the courts ever since such conveniences for
passage and transportation have had any existence. Very early the question arose whether
45 a state's right of eminent domain could be exercised by a private corporation created for
the purpose of constructing a railroad. Clearly it could not, unless taking land for such a
purpose by such an agency is taking land for public use. The right of eminent domain
nowhere justifies taking property for a private use. Yet it is a doctrine universally
accepted that a state legislature may authorize a private corporation to take land for the
50 construction of such a road, making compensation to the owner. What else does this
doctrine mean if not that building a railroad, though it be
Page 83 U. S. 695
built by a private corporation, is an act done for a public use? And the reason why the use
has always been held a public one is that such a road is a highway, whether made by the
government itself or by the agency of corporate bodies, or even by individuals when they
obtain their power to construct it from legislative grant. It would be useless to cite the
5 numerous decisions to this effect which have been made in the state courts. We may,
however, refer to two or three which exhibit fully not only the doctrine itself, but the
reasons upon which it rests. [Footnote 11]
Whether the use of a railroad is a public or a private one depends in no measure upon the
question who constructed it or who owns it. It has never been considered a matter of any
10 importance that the road was built by the agency of a private corporation. No matter who
is the agent, the function performed is that of the state. Though the ownership is private
the use is public. So turnpikes, bridges, ferries, and canals, although made by individuals
under public grants, or by companies, are regarded as publici juris. The right to exact
tolls or charge freights is granted for a service to the public. The owners may be private
15 companies, but they are compellable to permit the public to use their works in the manner
in which such works can be used. [Footnote 12] That all persons may not put their own
cars upon the road, and use their own motive power, has no bearing upon the question
whether the road is a public highway. It bears only upon the mode of use, of which the
legislature is the exclusive judge. [Footnote 13]
20 It is unnecessary, however, to pursue this branch of the inquiry further, for it is not
seriously denied that a railroad, though constructed and owned by a private corporation,
is a matter of public concern, and that its uses are so far public that the right of eminent
domain of the state may be exerted
Page 83 U. S. 696
25 to facilitate its construction. But it is contended that though the purpose and the use may
be public, sufficiently to justify taking private property, they are not public when the
right to impose taxes is asserted. It is argued that there are differences between the power
of taxation and the power of taking private property for a public use, and that because of
these differences it does not follow that wherever the one power may be exerted the other
30 can. We do not care to inquire whether this is so or not. The question now is whether if a
railroad, built and owned by a private corporation, is for a public use, because it is a
highway, taxes may not be imposed in furtherance of that use. If there be any purpose for
which taxation would seem to be legitimate it is the making and maintenance of
highways. They have always been governmental affairs, and it has ever been recognized
35 as one of the most important duties of the state to provide and care for them. Taxation for
such uses has been immemorially imposed. When, therefore, it is settled that a railroad is
a highway for public uses, there can be no substantial reason why the power of the state
to tax may not be exerted in its behalf. It is said that railroads are not public highways per
se; that they are only declared such by the decisions of the courts, and that they have
40 been declared public only with respect to the power of eminent domain. This is a mistake.
In their very nature they are public highways. It needed no decision of courts to make
them such. True they must be used in a peculiar manner, and under certain restrictions,
but they are facilities for passage and transportation afforded to the public, of which the
public has a right to avail itself. As well might it be said a turnpike is a highway, only
45 because declared such by judicial decision. A railroad built by a state no one claims
would be anything else than a public highway, justifying taxation for its construction and
maintenance, though it could be no more open to public use than is a road built and
owned by a corporation. Yet it is the purpose and the uses of a work which determine its
character. And if the purpose is one for which the state may properly levy a tax
50 Page 83 U. S. 697
upon its citizens at large, its legislature has the power to apportion and impose the duty,
or confer the power of assuming it upon the municipal divisions of the state. [Footnote
14] And surely it cannot be maintained that ownership by the public, or by the state, of
the thing in behalf of which taxation is imposed, is necessary to justify the imposition.
There are many acknowledged public uses that have no relation to ownership. Indeed,
most public expenditures are for purposes apart from any proprietorship of the state. A
5 public use may, indeed, consist in the possession, occupation, and enjoyment of property
by the public, or agents of the public, but it is not necessarily so. Even in regard to
common roads, generally, the public has no ownership of the soil, no right of possession,
or occupation. It has a mere right of passage. While, then, it may be true that ownership
of property may sometimes bear upon the question whether the uses of the property are
10 public, it is not the test.
The argument most earnestly urged against the constitutionality of the act is that it
attempted to authorize Fond du Lac County to assist the railroad company by a donation.
It is stoutly contended that the legislature could not authorize the county to impose taxes
to enable it to make a donation in aid of the construction of the railroad, even if its
15 ultimate uses are public. But why not? If the county can be empowered to aid the work
because it is a public use, what difference can it make in what mode the aid be extended?
It is conceded that in Wisconsin municipal corporations may be authorized to become
subscribers to the stock of private railroad companies, and to raise money by taxation to
meet bonds given in payment of the subscriptions. This has been decided by the highest
20 court of the state. [Footnote 15] And the reasons given for the decision are, not that the
municipal bodies acquired property rights by their subscriptions, or that they thereby
obtained partial control of the railroad companies, but that subscriptions to the stock were
Page 83 U. S. 698
a mode of aiding a work in which the public had an interest, a work of such a nature that
25 it might properly be aided by taxation. Never was the right to tax supposed to rest in any
degree upon anything else. Whether the stock had value or not was not even considered.
Equally with the taxation, the municipal subscription could be justified only because it
was for a public use. If taxation is invalid because laid for a private use, the nature of the
use cannot be changed by receiving stock for the money raised. There is no substantial
30 difference in principle between aid given to a railroad company by subscription to its
stock and aid given by donations of money or land. The burden upon the county may be
the same in whichever mode the aid is given, and the uses promoted are precisely the
same. And the courts have never attempted to make any distinction in the cases; certainly
not until the case of Whiting v. Fond du Lac County, and even then no real difference is
35 shown. On the other hand, the power to tax for the purpose of making donations in aid of
railroads built by private corporations has been affirmed. [Footnote 16] We have,
however, considered this subject in the case of the Railroad Co. v. County of Otoe,
[Footnote 17] and nothing more need now be said. What we have already remarked is
sufficient to show that in our opinion the Act of the Legislature of Wisconsin approved
40 April 10th, 1867, was a constitutional exercise of legislative power, and consequently
that the circuit court erred in instructing the jury that it was unconstitutional and void and
in directing a verdict for the defendants.
Judgment reversed and the record remitted with instructions to award a venire de novo.
THE CHIEF JUSTICE, MR. JUSTICE MILLER, and MR. JUSTICE DAVIS dissented
45 from the preceding opinion.
[Footnote 1]
25 Wis. 188.
[Footnote 2]
24 Wis. 350.
50 [Footnote 3]
See Angell & Ames on Corporations, § 40.
[Footnote 4]
25 Wis. 188.
[Footnote 5]
Havemeyer v. Iowa City, 3 Wall. 294; Gelpcke v. City of Dubuque, 1 Wall. 175; Ohio
Life & Trust Company v. Debolt, 16 How. 432.
5 [Footnote 6]
3 Wis. 612.
[Footnote 7]
6 id. 641.
[Footnote 8]
10 13 id. 37.
[Footnote 9]
10 Wis. 280.
[Footnote 10]
19 id. 652; see also Clark v. Janesville, 10 id. 136; and Bushnell v. Beloit, ib., 195.
15 [Footnote 11]
Beekman v. Saratoga & Schenectady Railroad Co., 3 Paige 45; Bloodgood v. Mohawk &
Hudson Railroad Co., 18 Wendell 1; Worcester v. Railroad Co., 4 Metcalf 564.
[Footnote 12]
Charles River Bridge Co. v. Warren, 7 Pickering 495.
20 [Footnote 13]
Cooley's Constitutional Limitations.
[Footnote 14]
Cooley's Constitutional Limitations 262.
[Footnote 15]
25 Clark v. Janesville, 10 Wis. 136; Bushnell v. Beloit, ib., 195.
[Footnote 16]
Gibbons v. Mobile and Great Northern Railroad Co., 36 Ala. 410; Davidson v.
Commissioners of Ramsay County, Minnesota.
[Footnote 17]
30 Supra, p. 83 U. S. 675.
END QUOTE
.
Therefore this ongoing misuse and abuse by State and Federal government to raise taxes and then
provide it to private companies is not at all for “PUBLIC PURPOSES” and therefore is a
35 misappropriation of Consolidated Revenue funds. Also by the States using and misusing/abusing
“eminent domain” powers the very purpose of federation is undermined.
.
The usage of TAX EXEMPTIONS, TAX DEDUCTIONS, TAX CONCESSIONS, etc, being
taxation powers therefore must conform to the purpose of fitting in for “PUBLIC PURPOSES”
40 and not for the benefit of some private company that may have so to say hoodwinked the
government in accepting a NON PROFIT (NOT-FOR-PROFIT) registration. Hence, all and
any NON PROFIT (NOT-FOR-PROFIT) registration in regard of religion for Commonwealth
taxation purposes must be held to be unconstitutional and so NULL AND VOID!(ULTRA
VIRES)
45 .
QUOTE
CHAPTER 17
THE PUBLIC PURPOSE SPHERE: GOVERNMENTS
AND NONPROFITS
50 Microeconomics in Context (Goodwin, et al.), 1st Edition (Study Guide 2008)
Chapter Summary

Having looked in detail at the private sector in the previous chapter, the text now turns to the
role of governments and nonprofit organizations in this chapter. For example, the coordination
and regulation functions of government, without which markets could not function in the way
they do is included. The chapter explores the ways in which organizations within the public
5 purpose sphere address both short- and long-term aspects of people’s needs. This chapter will
be particularly important for those of you who are interested in public policy, international
economics, business, finance, health, education, the nonprofit sector, and environmental
studies.
Objectives
10 After reading and reviewing this chapter, you should be able to:
1. Define the two primary functions of public purpose organizations.
2. Describe the three basic types of public purpose organizations.
3. Discuss the historical development of public purpose organizations regarding social
welfare.
15 4. Discuss the historical development of public purpose organizations regarding the
regulation of monopolies and trade practices.
5. Discuss the historical development of public purpose organizations regarding the
regulation of financial markets.
6. Discuss the historical development of public purpose organizations regarding
20 environmental protection.
7. Define the three major theories of organizational behavior: the theory of pure pub lic
service, the theory of “capture,” and the theory of civic responsibility.
Key Term Review
regulation open access resources
25 Progressive Era social insurance programs
means-tested programs Interstate Commerce Act
World Trade Organization Securities Act of 1933
Pigovian taxes self-regulation
public service (pure theory of) “capture” (theory of pure
30 civic responsibility (theory of) special interest)
END QUOTE
.
No doubt anyone reading this Chapter will learn from it.
.
QUOTE
The Hon. R.E. O'CONNOR (New South Wales)[3.18]: The moment the
commonwealth exercises the power, the states must retire from that field of
legislation.
40 END QUOTE
.
QUOTE Mr. REID:
We must make it clear that the moment the Federal Parliament legislates on one of
45 those points enumerated in clause 52, that instant the whole State law on the subject is
dead. There cannot be two laws, one Federal and one State, on the same subject. But
that I merely mention as almost a verbal criticism, because there is no doubt,
whatever that the intention of the framers was not to propose any complication of the
kind.
50 END QUOTE
.
QUOTE

Mr. OCONNOR.-Directly it is exercised it becomes an exclusive power, and there is
no doubt that it will be exercised.
END QUOTE
.
QUOTE Mr. BARTON.-
Under a Constitution like this, the withholding of a power from the
Commonwealth is a prohibition against the exercise of such a power.
END QUOTE
10 .
QUOTE
Mr. HIGGINS.-The particular danger is this: That we do not want to give to
the Commonwealth powers which ought to be left to the states. The point is that
15 we are not going to make the Commonwealth a kind of social and religious power
over us.
END QUOTE
.
20 QUOTE Mr. GORDON.-
The court may say-"It is a good law, but as it technically infringes on
the Constitution we will have to wipe it out."
END QUOTE
.
QUOTE Mr. BARTON.-
The position with regard to this Constitution is that it has no legislative
power, except that which is actually given to it in express terms or which is
30 END QUOTE
.
QUOTE
start page 1020] I think that we ought to be satisfied on these points, and satisfied that
35 if we leave the clause as it now stands there will, at any rate, be some proviso inserted
which will safeguard the states in the carrying out of any of their state laws over
which the states are to be supreme even under federation.
END QUOTE
.
QUOTE Mr. ISAACS (Victoria).-
In the next sub-section it is provided that all taxation shall be uniform throughout the
Commonwealth. An income tax or a property tax raised under any federal law must
45 be uniform "throughout the Commonwealth." That is, in every part of the
Commonwealth.
END QUOTE
.
QUOTE
The reductions may be on a sliding scale, but they must always be uniform.
END QUOTE
.
5 QUOTE
Sir GEORGE TURNER: No. In imposing uniform duties of Customs it should not be
necessary for the Federal Parliament to make them commence at a certain amount at once.
We have pretty heavy duties in Victoria, and if the uniform tariff largely reduces them at
once it may do serious injury to the colony. The Federal Parliament will have power to
10 fix the uniform tariff, and if any reductions made are on a sliding scale great injury
will be avoided.
END QUOTE
.
15 QUOTE Mr. BARTON.-
But it is a fair corollary to the provision for dealing with the revenue for the first five years
after the imposition of uniform duties of customs, and further reflection has led me to the
conclusion that, on the whole, it will be a useful and beneficial provision.
END QUOTE
20 .
QUOTE Mr. BARTON.-
On the other hand, the power of the Commonwealth to impose duties of customs and of
excise such as it may determine, which insures that these duties of customs and excise
25 would represent something like the average opinion of the Commonwealth-that power, and
the provision that bounties are to be uniform throughout the Commonwealth, might, I
am willing to concede, be found to work with some hardship upon the states for some
years, unless their own rights to give bounties were to some extent preserved.
END QUOTE
30 .
QUOTE Sir SAMUEL GRIFFITH:
2. Customs and excise and bounties, but so that duties of customs and excise and bounties
shall be uniform throughout the commonwealth, and that no tax or duty shall be imposed
35 on any goods exported from one state to another;
END QUOTE
.
QUOTE The CHAIRMAN.-
40 Taxation; but so that all taxation shall he uniform throughout the Commonwealth, and
that no tax or duty shall be imposed on any goods passing from one state to another.
END QUOTE
.
45 QUOTE Mr. BARTON (New South Wales).-
That all the words after the word "taxation" where it is first used be struck out, and that
the following words be substituted:-"but not so as to discriminate between states or parts of
states, or between goods passing from one state to another."
END QUOTE
50 .
QUOTE Mr. BARTON (New South Wales).-

That all the words after the first word "taxation" in the second sub-section be omitted,
with a view to inserting the following words-"but not so as to discriminate between states
or parts of states, or between persons or things passing from one state to another."
5 The amendment was agreed to.
The clause, as amended, was agreed to.
Then, on 16-3-1898 is appears to have been amended, without further discussion but approved
10 off by voting, from;
Taxation; but not so as to discriminate between states or parts of states, or between persons
or things passing from one state to another.
To;
15 Taxation; but not so as to discriminate between states or parts of states
It was claimed that in substance there was no change. Hence, both versions ought to be taken as
having the same meaning.
This is a critical issue as the wording;
20
“or between persons or things from one state or another”
then clearly entails that there can be no difference in taxation between persons, and as such
neither one person having a tax free income, partly or wholly while another having the same
25 income is required to pay more tax.
.
Mr. BARTON.-I am saying now that I do not think there is any necessity for clause 95
30 in its present form. What I am saying however, is that it should be made certain that in the
same way as you provide that the Tariff or any taxation imposed shall be uniform
throughout the Commonwealth, so it should be provided with reference to trade and
commerce that it shall be uniform and equal, so that the Commonwealth shall not give
preference to any state or part of a state. Inasmuch as we provide that all taxation,
35 whether it be customs or excise duties, or direct taxation, must be uniform, and
inasmuch as we follow the United States Constitution in that particular-in the very same
way I argue that we should protect the trade and commerce sub-section by not doing
anything which will limit its effect. That is the real logical position.
.
QUOTE
Clause 52, sub-section (2).-Taxation; but so that all taxation shall he uniform throughout
the Commonwealth, and that no tax or duty shall be imposed on any goods passing from
45 one state to another.
Mr. BARTON (New South Wales).-I have prepared an amendment with regard to this
sub-section, which puts the matter into a form which would express the intention of the
Convention, whilst avoiding a difficulty. Honorable members will recollect the difficulty
that arose over the construction of words equivalent to "uniform throughout the
50 Commonwealth" in the United States of America. Although no actual decision has been
given, a doubt has been raised as to the meaning of the word "uniform." The celebrated
income tax case went off as to the direct apportionment of taxation amongst the people
according to numbers, and this point was not decided, but a great deal of doubt has been
thrown on the meaning of the word in the judgment of Mr. Justice Field. I think that
although the word "uniform" has the meaning it was intended to have-"one in form"
throughout the Commonwealth-still there might be a difficulty, and litigation might arise
about it, and prolonged trouble might be occasioned with regard to the provision in case,
5 for instance, an income tax or a land tax was imposed. What is really wanted is to
prevent a discrimination between citizens of the Commonwealth in the same
circumstances. I beg to move-
10 states, or between goods passing from one state to another."
I conceive it to be quite unnecessary to retain these words in view of clause 89,

prescribing free-trade among the several states, under which any duty or tax on goods
passing from one state to another would be clearly invalid, and could not possibly be
allowed by the operation of the preference clauses. I propose not to say anything about
15 goods in this connexion passing from one state to another, as that is sufficiently provided
for, and I put in this provision, which prevents discrimination or any form of tax
which would make a difference between the citizen of one state and the citizen of
another state, and to prevent anything which would place a tax upon a person going
from one state to another. I beg to move-
20 That all the words after the first word "taxation" in the second sub-section be omitted,
with a view to inserting the following words-"but not so as to discriminate between
states or parts of states, or between persons or things passing from one state to
another."
The amendment was agreed to.
25 END QUOTE
.
QUOTE
30 Dr. QUICK.-Certainly, with regard to constitutional questions. I am prepared, if
necessary, to give up the subject's right of appeal; but I emphatically assert that there
should be a right of appeal from the decision of the High Court in regard to this
Constitution, a Constitution embodying novel provisions and giving important powers,
including the power of the Federal Court to review the procedure of Parliament. The
35 Federal High Court is empowered to-declare a law passed by both Houses and
assented to by the Crown ultra vires, not because the Legislature has exceeded its
jurisdiction, but because of some fault of procedure. Appeals would be made only when
there was a reasonable doubt in the minds of the responsible advisers of the
Commonwealth that the decisions of the High Court were open to question. The knowledge
40 of this right of appeal would be an incentive to the High Court to be most careful in its
decisions, and especially in its early decisions. I need not enumerate the cases in which, if
the amendment is carried, there will be no right of appeal. There will be no right of appeal
in regard to the letter of the Constitution itself. There will be no opportunity to review a
decision, for instance, in regard to legislation under clause 52, sub-section (1)-"The
45 regulation of trade and commerce." Then, again, it is provided that all taxation is to be
uniform, and all legislation under this provision will be taken out of the purview of the
Privy Council.
END QUOTE
.

QUOTE
Mr. GLYNN Does that put a maximum on military expenditure?
5 Mr. PEACOCK: A maximum on all expenditure!
Mr. BARTON: It seems to me to put a maximum on all expenditure, because the whole
of the expenditure cannot exceed the total yearly expenditure in the performance of
the services and powers given by the Constitution, and any powers subsequently
transferred from the States to the Commonwealth.
10 Mr. SYMON: Does that prevent any increase in case of war?

Mr. BARTON: Yes.
END QUOTE
.
QUOTE
Sir GEORGE TURNER (Victoria).-It seems to me that the question of direct taxation is
again being drawn across the trail to catch votes. Under ordinary circumstances, a million
or two million pounds could not be taken from the Customs revenue; but, suppose that an
20 expenditure were undertaken, the Commonwealth would have to raise the money by direct-
taxation. If the money were taken out of Customs revenue, and the clause were not in the
Bill, there would be so much less surplus to return to the states, and the states would have
to make up the deficiency themselves by direct taxation. These little words, "direct
taxation," were used in the Finance Committee, and have been used since to try and
25 frighten honorable members. If money cannot be raised by customs duties, it must be raised
by direct taxation.
The amendment was negatived.
END QUOTE
Again;
30 QUOTE
and the states would have to make up the deficiency themselves by direct taxation.
END QUOTE
.
Therefore, it must be clear that the States remained to have legislative powers to raise
35 taxation, albeit, it appears that the High Court of Australia has ruled otherwise.
What is a Constitution for, if the true application of powers and limitations are incorrectly
applied?
.
I noticed from a 20-12-2009 Sunday Herald Sun report that the Ken Henry, Treasury may be
40 proposing a “congestion tax” fro clogged cities. Only a few days earlier did I actually write to
Kevin Rudd PM that while the Commonwealth of Australia has taxation powers it can however
not use them as to micro manage internal State affairs as the Dutch are already implementing.
.
45 QUOTE 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.
END QUOTE
50 .
QUOTE
Constitution?
5 Mr. BARTON.-No; you have only two powers of spending money, and a church
[start page 1773]

END QUOTE
.
10 We will come back to this later also. In particular when we consider what Quick & Garran
stated in regard of their references to U.S.A Authorities relied upon in regard of s.51(xxxi). But
lets us consider also that some U.S.A. authorities can be applied to the commonwealth of
Australia while others cannot because if the difference of constitutional provisions.
15 WELSH v. UNITED STATES, 398 U.S. 333 (1970), 398 U.S. 333, WELSH v. UNITED
QUOTE
1. The language of 6 (j) cannot be construed (as it was in United States v. Seeger, supra,
20 and as it is in the prevailing opinion) to exempt from military service all individuals who
and belief" to limit religion to its theistic sense and to confine it to formal, organized
worship or shared beliefs by a recognizable and cohesive group. Pp. 348-354.
25 2. The question of the constitutionality of 6 (j) cannot be avoided by a construction of that
exempting those whose conscientious objection claims are founded on a theistic belief
while not exempting those whose claims are based on a secular belief. To comport with
30 that clause an exemption must be "neutral" and include those whose belief emanates from
a purely moral, ethical, or philosophical source. Pp. 356-361.
longstanding policy of exempting religious conscientious objectors, the Court, rather than
nullifying the exemption entirely, should extend its coverage to those like petitioner who
35 have been unconstitutionally excluded from its coverage. Pp. 361-367.
END QUOTE
QUOTE Chapter 12 “INSPECTOR-RIKATI® & How lawfully to avoid voting-CD”

QUOTE 4-6-2006 CORRESPONDENCE FAXED 10.36 pm 4-6-2006
40 WITHOUT PREJUDICE
Commonwealth Director of Public Prosecutions 4-6-
2006
C/o Judy McGillivray, lawyer
Melbourne Office, 22 nd Floor, 2000 Queen Street, Melbourne VIC 3000
45 GPO Box 21 A, Melbourne Vic 3001
Tel 03 9605 4333, Fax 03 9670 4295 ref; 02101199, etc
T01567737 & Q01897630
AND WHOM IT MAY CONCERN

Re; “religious objection” (Subsection 245(14) of the Commonwealth Electoral Act 1918)
offend Section 116 if the Constitution if it excludes secular belief based objections.
Madam,
5 As you are aware I continue to refer to my religious objection albeit do wish to indicate
that while using the “religious objection” referred to in subsection 245(14) of the
Commonwealth Electoral Act 1918 I do not consider that this subsection 14 limits an
objection only to an “theistic belief” based “religious objection” but in fact it also includes
any secular belief based “religious objection”, as it must be neutral to whatever a person
10 uses as grounds for an “objection”. This, as Section 116 of the Constitution prohibit the
Commonwealth of Australia to limit the scope of subsection 245(14) to only “theistic
belief” based “religious objections”. Therefore, any person having a purely moral, ethical,
or philosophical source of “religious objection” have a valid objection.
Neither do I accept that a person making an “religious objection” requires to state his/her
15 religion, and neither which part of his/her religion provides for a “religious objection” as
the mere claim itself is sufficient to constitute what is referred to in subsection 245(14) as
being a “religious objection”. Therefore, the wording “religious objection” is to be taken
as “objection” without the word “religion” having any special meaning in that regard.
If you do not accept this as such, then there is clearly another constitutional issue on foot!
20 I request you to respond as soon as possible and set out your position in this regard.
Awaiting your response, G. H. SCHOREL-HLAVKA

END QUOTE 4-6-2006 CORRESPONDENCE FAXED 10.36 pm 4-6-2006
END QUOTE Chapter 12 “INSPECTOR-RIKATI® & How lawfully to avoid voting-CD”
25 .
This (WELSH v. UNITED STATES, 398 U.S. 333 (1970)) is an Authority that I also used
successfully in court as to the issue of where the Commonwealth provides for religious
exclusions then this must include also secular exclusions. Such as if a person is excused from
voting on religious grounds then likewise an excuse is on a secular ground. You cannot
30 differentiate on being a religious person or being an atheist, etc.
On 19 July 2006 The County Court of Victoria upheld both my cases against the Commonwealth
of Australia and by this a 5 year epic legal battle came to an end in which I comprehensively
defeated the Commonwealth of Australia on all constitutional issues I submitted , including the
issue about “citizenship”. (SEE ALSO BELOW)
35 .
If therefore any religious body can obtain tax exemption for being a “religious body” then
any “non-religious” body likewise must be provided with tax-exemption!
.
Constitutionally, if a religious body can have tax exemption then likewise it must be
40 provided to any religious body as failing to do so would be in clear breach of s.116 of the
constitution!
.
Of any “religious body” can obtain tax-exemption then any “non-religious” body likewise
must be provided with tax exemption.
45 .
As a “person” includes a “corporation” then
.
50 QUOTE
Mr. BARTON (New South Wales).-No, there would be no prohibition in that respect.
The offices of Speaker and Chairman of Committees are not offices of profit under
the Crown. They are parliamentary offices, and Parliament has always retained a power
over its own Estimates to the extent that really the Speaker and President of the local
Chambers have always exercised a right to submit their own Estimates, and those
Estimates, as a rule, as far as I know in practice in my own colony, are altogether
5 untouched by the Government of the day. Now, these are political offices, but not offices of
profit under the Crown. I think that that is the principle that Parliament has always asserted
in England and elsewhere. As to the word "person," the British Interpretation Act of 1889,
which will be largely applied to the construction of this statute by the Imperial authorities,
provides that where the word "person" is used, unless the Act otherwise provides, the word
10 "corporation" shall be included.
Mr. HIGGINS (Victoria).-If a man agrees to get paid for services done in Parliament, or
for the Commonwealth, and if he does the work, and, having done the work, he resigns, is
there no penalty? Is there no punishment in such a case for a man who guarantees that he
will use his position in Parliament in order to make money, and, having made it, resigns!
15 Mr. BARTON (New South Wales).-No; and there is a reason for that. If I recollect
correctly there was some provision in the Bill in Adelaide in that respect, but that provision
was omitted in the sitting of the Convention at Sydney as a matter [start page 2449] of
policy. Mr. O'Connor suggests that it is quite probable that in such a case an action would
lie at common law. However that may be, the policy of inserting such a provision was
20 reversed in Sydney, and therefore the Drafting Committee could not frame any proposal to
that effect.
END QUOTE
.
QUOTE
25 An 1886 Supreme Court decision ruled corporations are persons
FALSE
The Definition Was Only Found in the Headnotes
In 1886, John Chandler Bancroft Davis (1822-1907), added commentary in the headnotes to the
case of Santa Clara County v. Southern Pacific Railroad Company that defined a corporation as a
30 legal person. Davis was the former president of the Newburgh & New York Railroad, and
Reporter of the U.S. Supreme Court (in which capacity he authored the headnotes.) It could be
said he had a conflict of interest. Contrary to popular belief, the court did not rule that
corporations are persons: Davis simply added it in the headnotes (commentary) on his own, and
subsequent courts have incorrectly based decisions since 1886 on the headnotes and not the case.
35 The Case Avoided Constitutional Judicial Review
Supreme Court Correspondence Uncovered:
Michael Kinder recently uncovered a letter from Supreme Court Chief Justice Morrison
Remick Waite to court reporter J.C. Bancroft Davis informing Davis that it didn't really matter
whether or not he included a comment about the arguments before the court that corporations
40 were persons "as we avoided meeting the constitutional questions in the decision."
(Michael Kinder found this letter in the J.C. Bancroft Davis collection of personal papers in the
National Archives in Washington, DC, where they had been sitting, unnoticed, for over a
century.)
45 Davis writes, after quoting language stating that corporations are persons, "please let me know
whether I correctly caught your comments and oblige [reply].")

( In his reply to Davis, Waite writes: "I think your mem. in the California Rail Road tax cases
expresses with sufficient accuracy what was said before the arguments began. I leave it with you
to determine whether anything need be said about it in the report inasmuch as we avoided
meeting the Constitutional question in the decision.")
5 (Above: Delphin M. Delmas, the attorney who in 1882 successfully, single handedly, and pro
bono argued before the California legislature to save the last remaining redwood trees in that
state, and in 1886 made an eloquent and successful defense of "human rights for humans only"
before the U.S. Supreme Court in 1885/1886 in the Santa Clara case.)
The Case Is Often Cited Incorrectly
10 This case is often incorrectly cited as holding that corporations, as juristic persons, are protected
by the Fourteenth Amendment.[2] Although the question of whether corporations were persons
within the meaning of the Fourteenth Amendment had been argued in the lower courts and
briefed for the Supreme Court, the Court did not base its decision on this issue. However, before
oral argument took place, Chief Justice Morrison R. Waite announced: "The court does not wish
15 to hear argument on the question whether the provision in the Fourteenth Amendment to the
Constitution, which forbids a State to deny to any person within its jurisdiction the equal
protection of the laws, applies to these corporations. We are all of the opinion that it does."[3]
This quotation was printed by the court reporter in the syllabus and case history above the
opinion, but was not in the opinion itself. As such, it did not have any legal precedential value.[4]
20 Nonetheless, the persuasive value of Waite's statement did influence later courts.[5] For these
reasons, it is considered a turning point in the extension of constitutional rights to juristic
persons.[6]
Book Quotations:
25 Quoting from David Korten's The Post-Corporate World, Life After Capitalism (pp.185-6):
In 1886, . . . in the case of Santa Clara County v. Southern Pacific Railroad Company, the
U.S. Supreme Court decided that a private corporation is a person and entitled to the legal rights
and protections the Constitutions affords to any person. Because the Constitution makes no
mention of corporations, it is a fairly clear case of the Court's taking it upon itself to rewrite the
30 Constitution.
Far more remarkable, however, is that the doctrine of corporate personhood, which
subsequently became a cornerstone of corporate law, was introduced into this 1886 decision
without argument. According to the official case record, Supreme Court Justice Morrison
Remick Waite simply pronounced before the beginning of arguement in the case of Santa Clara
35 County v. Southern Pacific Railroad Company that:
The court does not wish to hear argument on the question whether the provision in the
Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within
its jurisdiction the equal protection of the laws, applies to these corporations. We are all of
opinion that it does.
40 The court reporter duly entered into the summary record of the Court's findings that
The defendant Corporations are persons within the intent of the clause in section 1 of the
Fourteen Amendment to the Constitution of the United States, which forbids a State to deny to
any person within its jurisdiction the equal protection of the laws.
45
Thus it was that a two-sentence assertion by a single judge elevated corporations to the status of
persons under the law, prepared the way for the rise of global corporate rule, and thereby
changed the course of history.

The doctrine of corporate personhood creates an interesting legal contradiction. The corporation
is owned by its shareholders and is therefore their property. If it is also a legal person, then it is a
person owned by others and thus exists in a condition of slavery -- a status explicitly forbidden
by the Thirteenth Amendment to the Constitution. So is a corporation a person illegally held in
5 servitude by its shareholders? Or is it a person who enjoys the rights of personhood that take
precedence over the presumed ownership rights of its shareholders? So far as I have been able to
determine, this contradiction has not been directly addressed by the courts.
Sources:
10 1. Santa Clara County v. Southern P. R. Co., 118 U.S. 394 (U.S. 1886) (Lexis-Nexis
summary)
2. [1]
3. 118 U.S. 394 (1886) - According to the official court Syllabus in the United States
Reports
15 4. Thomas Van Flein. "Headnotes and the Course of History." The Alaska Bar Rag.
May/June, 2003 (27 AK Bar Rag 2)
5. Shepard's summary for 118 U.S. 394
6. [2]
7. Hartmann, Thom Unequal Protection (2002)
20 Santa Clara County v. Southern Pacific Railroad. (2007, December 10). In Wikipedia, The Free
Encyclopedia. Retrieved 03:20, February 8, 2008, from
http://en.wikipedia.org/w/index.php?title=Santa_Clara_County_v._Southern_Pacific_Railroad&
oldid=177083252
External links
25  Full text of the decision & case resources from Justia & Northwestern-Oyez
 Barry Yeoman, When Is a Corporation Like a Freed Slave?, Mother Jones
 "Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights" by Thom
Hartmann
END QUOTE
30
Essentially if the Commonwealth of Australia unconstitutionally exempts any religious
body from taxation then any other person is legitimately entitled not to pay taxation either!
Consider the WELSH v. UNITED STATES, 398 U.S. 333 (1970 Authority!
.
35 QUOTE 26-11-2009 correspondence to Kevin Rudd PM
Kevin Rudd PM
,
Kevin,
I understand that the Commonwealth of Australia is providing funding, being it through tax
40 concessions, special funding, etc to RELIGIOUS organizations but refuse to do the same
for ATHEIST FOUNDATION OF AUSTRALIA INC.
I do not belong to either any religious group or to ATHEIST FOUNDATION OF
AUSTRALIA INC, and as such has no financial interest in this. As a
CONSTITUTIONALIST, I do view however that any funding for one but not equally to the
other would be a breach of constitutional prohibitions. Any funding or indirect funding,
such as tax concessions, must if provided to a religious body likewise must be provided to a
non-religious body as failing to do so would breach the provisions of 116 of the federal
constitution.
5 Consider the quotations also below;
QUOTE, The Age, KATE LAHEY November 26, 2009 - 11:16AM
The Parliament of the World's Religions begins on December 3 at the new Melbourne
Convention and Exhibition Centre and has also received $2 million from the Federal
10 Government and $500,000 from the Melbourne City Council.
END QUOTE
And
QUOTE regarding non-funding of ATHEIST FOUNDATION OF AUSTRALIA INC
Government spokesman Luke Enright said: "The decision not to fund this event has
15 nothing to do with religious ideology – the convention just doesn't meet the criteria
required to receive government funding".
END QUOTE
.
As you may recall on 19 July 2006 I defeated the Commonwealth of Australia
20 comprehensively after a 5-year epic legal battle and one issue I had raised as a
CONSTITUTIONALIST is that the Commonwealth of Australia could not provide
religious benefits not provided to atheist.
END QUOTE 26-11-2009 correspondence to Kevin Rudd PM
.
25 In my vie, as a CONSTITUTIONALIST, a refusal to fund “ATHEIST FOUNDATION OF
AUSTRALIA INC.” in the same manner as any religious body causes the funding for the
religious bodies to be unconstitutional. Indeed, even if I were to claim a non-religious status then
the commonwealth would be obligated to provide me with the same kind of funding as a
religious body as to deny such funding would cause the funding for religious bodies to be
30 unconstitutional. As such, if a sporting body likewise seek funding for meetings, or for that
matter any other private organization, being it the scouts, bike group, push bike club, soccer club
or whatever they all then should be provided with Commonwealth funding if they too hold an
annual meeting as may companies when they hold their AGM’s! Any specific funding or
taxation deduction and/or tax exemption upon the basis of religion would be unconstitutional.
35 The religious component has no place in taxation matters for the Commonwealth of Australia
and likewise would offend State embedded legal principles of a separation of Church and State.
The following should be applied to any issue regarding religion:
.
40 QUOTE
US Supreme Court:
Lemon v. Kurtzman
403 U.S. 602 (1971), argued 3 Mar. 1971, decided 28 June 1971 by vote of 7 to 0; Burger
for the Court, Brennan and White concurring in part and dissenting in part, Marshall not
45 participating. In this case, the Court considered the constitutionality of the Rhode Island
Salary Supplement Act of 1969 and Pennsylvania's Non- Public Elementary and Secondary
Education Act of 1968. Both laws allowed the state to support directly the salaries of
teachers of secular subjects in parochial and other nonpublic schools.
50 The issue was whether these laws violate the First Amendment religion clauses, which

prohibit laws that “respect” the establishment of religion or limit its free exercise. In this
case the Court established what has come to be known as the Lemon Test, which Chief
Justice Warren Burger called “cumulative criteria developed by the Court over many years”
(p. 642), to consider the constitutionality of statutes under the Establishment Clause. The
5 Lemon Test added a new “excessive entanglement” prong to the existing requirements that
such laws be for a secular legislative purpose (Abington School District v. Schempp, 1963)
and that their primary effect neither advance nor inhibit religion (Board of Education v.
Allen, 1968).
10 The Court held that both statutes violated the excessive entanglement strand of the new test.
The Court was particularly concerned that teachers in a parochial school setting, unlike the
mere provision of secular books, may improperly involve faith and morals in the teaching
of secular subjects; further, continuing surveillance by states to avoid this situation would
nonetheless involve “excessive and enduring entanglement between state and church” (p.
15 619). Alluding to Thomas Jefferson's famous metaphor of a “wall of separation between
church and state,” which the Court had previously employed to define the meaning of the
Establishment Clause, Burger observed that “far from being a wall,” it is a “blurred,
indistinct, and a variable barrier depending on all the circumstances of a particular
relationship” (p. 614).
20
To ensure the separation of church and state, the state would have to undertake a
comprehensive, discriminating, and continuing surveillance of religious schools, including
state audits and on- school visits. The Court also found that these laws foster a broader, yet
different type of entanglement—the potential for divisive politics among those who support
25 and those who oppose state aid to religious education. Although the Court has viewed
political division along religious lines as one of the principal evils that the First
Amendment was designed to prevent, it chose not to make fear of political divisiveness a
separate and fourth tier of the test.
30 Attempts have been made to replace the Lemon Test with the Coercion Test, which would
emphasize limiting government from coercing individuals in their free exercise of religion,
and denude the Lemon Test of its “excessive entanglement” prong. These have failed as
demonstrated in landmark school prayer cases such as Lee v. Weisman (1992), which
outlawed school prayer at a middle school graduation, and Santa Fe Independent School
35 District v. Doe (2000), which prohibited high school students from voting whether to have
“invocations” at football games and choosing the person to deliver them. In Zelman v.
Simmons- Harris (2002), a case in which the Supreme Court permitted school voucher
programs, all prongs of the Lemon Test continued to be important to a majority of justices.
END QUOTE
40 .
QUOTE
Lemon test
The Court's decision in this case established the "Lemon test", which details the
45 requirements for legislation concerning religion. It consists of three prongs:
4. The government's action must have a secular legislative purpose;
5. The government's action must not have the primary effect of either advancing or
inhibiting religion;

6. The government's action must not result in an "excessive government
entanglement" with religion.
If any of these 3 prongs are violated, the government's action is deemed unconstitutional
under the Establishment Clause of the First Amendment to the United States Constitution.
5 The act stipulated that "eligible teachers must teach only courses offered in the public
schools, using only materials used in the public schools, and must agree not to teach
courses in religion." Still, a three-judge panel found 25% of the State's elementary students
attended nonpublic schools, about 95% of those attended Roman Catholic schools, and the
sole beneficiaries under the act were 250 teachers at Roman Catholic schools.
10 The court found that the parochial school system was "an integral part of the
religious mission of the Catholic Church," and held that the Act fostered
"excessive entanglement" between government and religion, thus violating the
Establishment Clause.[1]
Held: Both statutes are unconstitutional under the Religion Clauses of the First
15 Amendment, as the cumulative impact of the entire relationship arising under the
statutes involves excessive entanglement between government and religion. [1]
Later developments
Lemon's future is somewhat uncertain. Sustained criticism by conservative Justices such as
Antonin Scalia and Clarence Thomas, lack of a clear reaffirmation of the central tenets of
20 Lemon over the years since the 1980s, and inconsistent application in major Establishment
Clause cases has led some legal commentators and lower court judges to believe that
Lemon's days are numbered, and that the Court has implicitly left the decision of whether to
apply the test in a specific case up to lower courts.[citation needed] This has resulted in a
patchwork pattern of enforcement in circuit courts across the nation; while some courts
25 apply Lemon in all or most cases, others apply it in few or none.[citation needed] The Supreme
Court itself has applied the Lemon test as recently as 2000 in Santa Fe Independent School
District v. Doe.[2]
See also
 List of United States Supreme Court cases, volume 403
30  Sherbert Test
 Endorsement test
 Lee v. Weisman
 Kitzmiller v. Dover Area School District

Further reading
35  Alley, Robert S. (1999). The Constitution & Religion: Leading Supreme Court Cases
on Church and State. Amherst, NY: Prometheus Books. pp. 82–96.
ISBN 1573927031.
 Kritzer, Herbert M.; Richards, Mark J. (2003). "Jurisprudential Regimes and Supreme
Court Decisionmaking: The Lemon Regime and Establishment Clause Cases". Law &
40 Society Review 37 (4): 827–840. doi:10.1046/j.0023-9216.2003.03704005.x.
END QUOTE
.
http://thirdsectornews.ursulastephens.com/
QUOTE
Standard Chart of Accounts Project
The Standard Chart of Accounts consists of a set of accounts that can be set up in most
accounting software systems. It also provides a standard data dictionary for guidance on
how to process transactions and decide which transactions go to which accounts. The
5 Standard Chart of Accounts makes financial data consistent across community
organisations and is part of the Government’s commitment to smarter regulation in the
sector.
The Centre of Philanthropy and Nonprofit Studies (CPNS) at Queensland University of
Technology in partnership with several non-profit organisations developed the Standard
10 Chart of Accounts Project in 2007. Since then, it has been adopted by several states, and in
December last years was supported through COAG as one of the best ways to reduce red
tape for organisations. The Communique from the Dec 9 COAG meeting said:
“To ensure that the regulatory burden on not-for-profit sector organisations is minimised,
COAG agreed to allow these organisations to meet a range of requirements with one
15 system of a Standard Chart of Accounts for not-for-profit organisations in receipt of
government grants.”
Information about the Standard Chart of Accounts Project at the Centre for
Philanthropy and non-Profit Studies is available for all states here
END QUOTE
20 .
One has to ask how on earth can CoAG (Council of Australian governments) decide about non-
for-profit matters when the States either separately or collectively can have anything to do with
the commonwealth of Australia taxation powers? Again, as shown in this document the Framers
of the Constitution made clear that when it came to State purchases or railway items then it could
25 not be excused of paying costumes/duties or other taxation! As such call it NOT-FOR-PROFIT
or NON PROFIT in the end the RULE OF LAW must be applied that religion plays no part in
it.
.
While I understand that there are people who have a dislike for entities like the EXCLUSIVE
30 BRETHERN, SIENTOLOGY, HILL SIDE CHURCH, etc, because of what they deem
objectionable conduct, in reality for taxation purposes it makes not one iota difference if they are
or are not religious entities or whatever they desire to aspire to as any consideration as to religion
is unconstitutional! Any State classification on religious bases to be regarded NON PROFIT
cannot be maintains and so not applied for Commonwealth of Australia taxation purposes.
35 Meaning that any taxation exemptions of the past must be held NULL AND VOID and as much
as the Commonwealth of Australia seeks to reclaim taxes of others who are deemed not to have
paid appropriate taxation then likewise the Commonwealth must ensure that any religious based
qualification for NON PROFIT organization is caused to payback any unpaid taxes. The
commonwealth cannot whatsoever excuse any such religious entity from paying the unpaid taxes
40 because if it were to do so then it can neither demand of anyone else to pay overdue taxes.
Likewise, any tax deductions to religious bodies, of any kind, are unconstitutional and cannot be
permitted and likewise any tax exemptions.
.
EITHER WE HAVE A CONSTITUTION OR WE DON”T!
45 (I know in proper English it is “We either have a constitution or we don’t!”, but this my
slogan!)
.
The following is from the ATO website and clearly providing for “RELIGIOUS” consideration
regardless this being UNCONSTITUTIONAL.
50 .
http://www.ato.gov.au/nonprofit/
QUOTE http://www.ato.gov.au/nonprofit/content.asp?doc=/content/64248.htm
Induction package for new administrators
If you are a new treasurer, office bearer or employee involved in the administration of a non-profit organisation
- such as a charity, club, society or association - this package introduces you to the information and services
we have to assist you in your role.
5 The package is also useful for existing non-profit administrators, as it contains an overview of non-profit tax
issues and links to other sections of our website.
View the Induction package for non-profit administrators

Do you know about our free email update service for non-profits?
You can subscribe to the Non-Profit Organisations area of our website and receive free email updates when
10 information is updated or added, including articles from our Non-Profit News Service.
It will keep you up-to-date on key tax issues affecting the non-profit sector, new publications we release for
non -profit organisations, and changes to the tax law.
Find out how to subscribe and view previous articles.
15 We welcome your feedback

The information contained in this package will be reviewed regularly and updated when necessary. Feedback
is welcomed and can be sent by email to npc-publications@ato.gov.au
Last Modified: Wednesday, 29 August 2007
END QUOTE
20
Non-Profit News Service No. 0262 - Public ancillary funds
breaching trust obligations
We have found that a number of public ancillary funds endorsed as deductible gift recipients (DGRs) are in
25 breach of their trust deed. Common errors identified in our reviews include:
distributions paid directly to entities located offshore
benefits provided to non-DGRs located in Australia
distributions to other ancillary funds.
These disbursements are inconsistent with the trust obligations of a fund claiming to meet the character of a
30 public ancillary fund and endorsed as a DGR.
Public ancillary funds are public funds established and maintained under a will or instrument of trust solely for
the purpose of providing money, property or benefits to DGRs or the establishment of DGRs.
An ancillary fund must be exclusively for these purposes. It must not carry on any other activities. It is like a
conduit or temporary repository for channelling gifts to other DGRs. An ancillary fund must not provide for or
35 establish other ancillary funds.
Example
Recent reviews of public ancillary funds found that a number of entities had remitted funds directly offshore to
entities that were not DGRs. Other funds were found to be distributing to entities, located within Australia, that
were not DGRs or they had made distributions to other ancillary funds. These distributions were inconsistent
40 with the purposes recorded in their trust deed.
While the actions of the trustees were well intended and the aim was to assist individuals and communities in
need, the disbursements were not in keeping with their trust obligations. Public ancillary fund trust deeds
reflected purposes consistent with public ancillary fund endorsement, yet trustees had failed to comply with the
purposes outlined in the deed.
45 DGR endorsement is available to organisations and funds that meet the character and requirements of the
DGR categories. Where an entity's foundation documents record it as having a particular purpose and its
actions are inconsistent with that purpose, it places its endorsement at risk.

What can you do?
Review your organisation’s entitlement to endorsement.
Advise us in writing if you stop being entitled.
Avoid tax problems through good governance.

5 More information
The requirements for public ancillary funds
How to review DGR endorsement status
For information about the Non-Profit News Service, including how to subscribe and links to previous articles,
10 see About the Non-Profit News Service.
We encourage your feedback and suggestions for future topics to be covered by the news service. You can do
this by:
email: npc-publications@ato.gov.au
phone: 1300 130 248.
15
Last Modified: Tuesday, 12 January 2010
END QUOTE
.
QUOTE http://www.ato.gov.au/businesses/content.asp?doc=/content/33844.htm
20 GST concessions for non-profit organisations - Tax basics
for non-profit organisations
Note: This document forms part of our publication Tax basics for non-profit organisations. To view the full
publication, click here. The information in this document has been updated for changes
that have occurred since the publication was released in June 2007.
25
Introduction
There are a range of GST concessions that are available to non-profit organisations.
GST concession Explanation of concession

30
Gifts – a gift to a non-profit organisation is not consideration for a supply. See Gifts
School tuck shops – a non-profit organisation may sell food through a tuck See School tuck shops
shop or canteen at a primary or secondary school and treat the sales as input taxed.
35
GST registration threshold – the registration turnover threshold is higher for See GST registration threshold
non -profit organisations than for other organisations.
GST groups – the requirement to satisfy the 90% ownership test is waived GST groups
40 where the entity is a non-profit organisation and all the other members of the
GST group or proposed GST group are non-profit organisations and members
of the same non-profit association.
There are additional GST concessions for charities, gift deductible entities and government schools.
45 See the table.
Gifts
A gift made to a non-profit organisation is not consideration for a sale and is not subject to GST. The value of a
gift is also excluded when calculating the non-profit organisation’s GST turnover.
50 For a payment to be considered a gift it must be made voluntarily and the payer cannot receive a material
benefit in return:

A payment is not voluntary when there is an obligation to make the payment or the non-profit organisation
is contractually obliged to use the payment in a specific way.
A benefit is not a material benefit if it is an item of insubstantial value that cannot be put to a use or is not
marketable, such as a pin or a ribbon. An item of greater value, such as a ticket to a dinner, or an item
5 that has a use or function, such as a pen or a book, is a material benefit.
For more information refer to Non-profit organisations and fundraising (NAT 13095).
To obtain this publication, see More information.
School tuck shops

10 If a non-profit organisation (for example, a Parents and Citizens Association) operates a school tuck shop on
the grounds of a primary or secondary school, it can choose to treat all sales of food through the tuck shop as
input taxed.
This means that the organisation does not charge GST on its sales, and does not claim GST credits for its
purchases.
15 As input taxed sales are not included when calculating the GST turnover for GST registration purposes,
choosing to treat all sales of food as input taxed may mean that the organisation does not have to register for
GST.
There are certain conditions that must be met in order to apply this concession. For more information refer to
Non-profit organisations and fundraising (NAT 13095).
20 To obtain this publication, see More information .
GST registration threshold

The GST registration threshold for a non-profit organisation is $150,000. This means your non-profit
organisation is not required to be registered for GST unless the GST turnover of your organisation is $150,000
25 or more.
You may still choose to register your organisation for GST if its GST turnover is less than $150,000. The
decision to voluntarily register for GST is one that ought to be based on the administrative needs of your
organisation. Some organisations may choose not to register for GST because they consider the GST
reporting requirements to be a greater burden than the benefit they would receive, for example, access to GST
30 credits.
Last Modified: Tuesday, 11 September 2007
END QUOTE
.
35 GST branches, groups and non-profit sub-entities - Tax
basics for non-profit organisations
Note: This document forms part of our publication Tax basics for non-profit organisations. To view the full
publication, click here. The information in this document has been updated for changes that have occurred
since the publication was released in June 2007
40
Introduction
There are a number of options available to non-profit organisations in relation to how they structure their
organisation for GST purposes.
Last Modified: Monday, 12 November 2007
45
Table of contents
Introduction
GST branches
GST groups
GST religious groups
Non-profit sub-entities
More information

END QUOTE
.
5 QUOTE http://www.ato.gov.au/nonprofit/content.asp?doc=/content/33547.htm&page=4&H4
GST branches, groups and non-profit sub-entities - Tax
basics for non-profit organisations
GST religious groups
10 Non-profit organisations that are income tax exempt charities and belong to the same religious organisation
can form a GST religious group, provided they meet certain requirements.
This means no GST is payable and no credits can be claimed on transactions between group members.
However, each member of the GST religious group is still required to be individually registered for GST and
account for all its transactions with parties external to the GST group by lodging individual activity statements.
15 Last Modified: Monday, 12 November 2007
.
EXAMPLES of Authorities Relied upon by this website.
.
QUOTE http://law.ato.gov.au/atolaw/execute_search_java.htm
20 All results: 1 to 20 of 497
ATO Decisions (ATO ID & CDS), ATO Interpretative Decisions
1. ATO ID 2001/65
Taxation Classification of a Trust
2. ATO ID 2001/332
Fringe Benefits Tax : Religious Practitioner's Exemption
3. ATO ID 2002/389 (Withdrawn)
Superannuation guarantee scheme: employment status
4. ATO ID 2003/408
Assessability of employment income received from Fiji by resident taxpayer
5. ATO ID 2003/1001
Capital Allowances: project pools - project amount - community infrastructure
6. ATO ID 2004/438
GST and supply of a religious pastoral ministry course
7. ATO ID 2004/666
Withholding tax obligation: payment to religious practitioners performing marriage services
8. ATO ID 2004/765
GST and religious practitioner purchasing religious tracts and selling to church members
9. ATO ID 2004/766
GST and religious practitioner writing a book about a particular aspect of the history of the religious
institution of which they are a member and selling the book to the public
10.ATO ID 2004/767
GST and activity by a self-appointed spiritual leader of writing and selling booklets setting out beliefs
and practices of their group
11.ATO ID 2006/112
GST and annual conference held by a religious institution
ATO Decisions (ATO ID & CDS), ATO Case Decision Summaries
12.CDS10141
Is a student engaged in full time religious studies, but being paid an 'allowance' by a church,
considered an employee ?
13.CDS10349
Is the taxpayer a 'public educational institution' for the purposes of Item 1.4 of section 50-5 (Income
Tax Assessment Act 1997 (ITAA 1997))?
Case Judgments, Administrative Appeals Tribunal
14.Case A45 (22 August 1969.)
Judgment by G. Thompson (Member):
15.Case No B 93/1967 (15 August 1969.)
Judgment by F.E. Dubout (Chairman):
16.Case No B 93/1967 (15 August 1969.)
17.Case D20 (17 May 1972.)
Judgment by R.E. O'Neill (Member):
18.Case No B 17/1971 (14 June 1974.)
19.Case No 7/1974 (5 March 1976.)
20.Case No 58/1976 (21 April 1978.)
First Previous 1 2 3 4 5 6 7 8 9 10 11 Next Last
END QUOTE
.
http://law.ato.gov.au/atolaw/results_java.htm?rank=find&cat=ALL&criteria=AND~RELIGION~
basic~exact&target=ALL&style=java&recStart=21&PiT=99991231235958
5 QUOTE
39.Council of Dominican Sisters of Australia v. Commissioner for ACT Revenue Collections - (14 January
1991) (14 January 1991)
Judgment by RK Todd (Deputy President):
40.Australian Institute of Management (Vic) and Commissioner of State Revenue (Vic), Re - (3 November
1995) (3 November 1995)
Judgment by GAA Nettle:
END QUOTE
.
10 QUOTE
53.Faith Baptist Church Inc v Chief Commissioner of State Revenue (Rd) (14 May 2008)
END QUOTE
.
15 QUOTE
Case Judgments, High Court
109.Giris Pty Ltd v. Federal Commissioner of Taxation - (5 March 1969) (Judgment handed down 5 March
1969.)
Judgment by Windeyer J.:
110.Church of the New Faith v. Commissioner of Pay-roll Tax (Vict.) - (27 October 1983) (Judgment
handed down 27 October 1983.)
Judgment by Mason A.C.J. and Brennan J.:
Judgment by Murphy J.:
Judgment by Wilson and Deane JJ.:
113.SGH Ltd v. Federal Commissioner of Taxation - (1 May 2002) (1 May 2002)
Judgment by Gleeson CJ, Gaudron, McHugh and Hayne JJ:
114.Federal Commissioner of Taxation v. Stone - (26 April 2005) (26 April 2005)
Judgment by Kirby J:
115.Central Bayside General Practice Association Ltd v. Commissioner of State Revenue - (31 August
2006) (31 August 2006)
116.Central Bayside General Practice Association Ltd v. Commissioner of State Revenue - (31 August
2006) (31 August 2006)
Judgment by Callinan J:
117.Federal Commissioner of Taxation v. Word Investments Ltd - (3 December 2008) (3 December 2008)
Judgment by Gummow, Hayne, Heydon and Crennan JJ:
118.Federal Commissioner of Taxation v. Word Investments Ltd - (3 December 2008) (3 December 2008)
119.Byrne v Australian Airlines Ltd (3 May 1995)
Judgment by McHugh J; Gummow J
120.Barby v Perpetual Trustee Co Ltd (25 November 1937)
Judgment by Dixon J
END QUOTE
.
5 QUOTE
All results: 121 to 140 of 497
121.Federated Municipal and Shire Council Employees' Union of Australia v. Melbourne Corporation (20
June 1919)
Judgment by HIGGINS J (1)
122.Sisters of Mercy Property Association v. Newtown and Chilwell Corporation (6 November 1944)
Judgment by Latham CJ
123.Sisters of Mercy Property Association v. Newtown and Chilwell Corporation (6 November 1944)
Judgment by Williams J
124.Kartinyeri v The Commonwealth (1 April 1998)
Judgment by Kirby J
125.AMS v AIF; AIF v AMS (17 June 1999)
Judgment by Callinan J
126.BANK OFFICIALS' ASSOCIATION (SOUTH AUSTRALIAN BRANCH) v SAVINGS BANK OF
SOUTH AUSTRALIA (6 June 1923)
Judgment by HIGGINS J
127.Chesterman v. Federal Commissioner of Taxation (6 June 1923)
Judgment by HIGGINS J
128.Congregational Union of New South Wales v. Thistlethwayte (29 August 1952)
Judgment by DIXON CJ; McTIERNAN J; WILLIAMS J; FULLAGAR J
129.Doodeward v Spence (22 May 1908)
Judgment by Griffith CJ
130.Doodeward v Spence (22 May 1908)
Judgment by Higgins J
131.Public Trustee v Federal Commissioner of Taxation (13 November 1964)
Judgment by Windeyer J
132.The Queen v. Winneke; Ex Parte Gallagher (16 DECEMBER 1982)
Judgment by Murphy
133.Victoria, South Australia and Western Australia v. Commonwealth (4 SEPTEMBER 1996)
Judgment by Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ
134.Victoria, South Australia and Western Australia v. Commonwealth (4 SEPTEMBER 1996)
Judgment by Dawson J
135.Applicant A & anor v. Minister for Immigration & Ethnic Affairs & anor (24 FEBRUARY 1997)
Judgment by Brennan CJ
Judgment by McHugh J
Judgment by Gummow J
Judgment by Kirby J
140.Kruger & Anors v. Commonwealth (31 JULY 1997)
Order
END QUOTE
.
5 QUOTE
All results: 141 to 160 of 497
Judgment by Brennan CJ
Judgment by Toohey J
Judgment by Gaudron J
Judgment by McHugh J
Judgment by Gummow J
147.Newcrest Mining (WA) Ltd & Another v. Commonwealth & Another (14 AUGUST 1997)
Judgment by Kirby J
148.Lemm v. Federal Commissioner of Taxation (26 November 1942)
Judgment by Williams J
149.Monds v. Stackhouse (December 23 1948)
150.Attorney-General (NSW) v. Perpetual Trustee Co (LTD) (28 June 1940)
151.Roman Catholic Archbishop of Melbourne v Lawlor & Ors; His Holiness the Pope v National Trustees,
Executors and Agency Co of Australiasia Ltd & Ors (23 May 1934)
Judgment by Gavan Duffy CJ; Evatt J
Judgment by Rich J
Judgment by Starke J
Judgment by Dixon J
Judgment by McTiernan J
156.Royal North Shore Hospital of Sydney v. Attorney-general (NSW) (19 August 1938)
Judgment by LATHAM CJ
157.Royal North Shore Hospital of Sydney v. Attorney-general (NSW) (19 August 1938)
Judgment by DIXON J
158.Salvation Army (Victoria) Property Trust v. Fern Tree Gully Corporation (5 March 5 1952)
Judgment by DIXON J; WILLIAMS J; WEBB J
159.South Australia and Ors v. Commonwealth and Anor (23 July 1942)
160.Stratton v. Simpson (12 November 1970)
Judgment by WINDEYER J
END QUOTE
.
5 QUOTE
Mr. BARTON.-I do not think the fact that we may be held by law to be a Christian
community is any reason for us to anticipate that there will be any longer any fear of a
reign of Christian persecution-any fear that there will be any remnant of the old ideas which
have caused so much trouble in other ages. The whole of the advancement in English-
10 speaking communities, under English laws and English institutions, has shown a less and
less inclination to pass laws for imposing religious tests, or exacting religious observances,
or to maintain any religion. We have not done that in Australia. We have abolished state
religion in all these colonies; we have wiped out every religious test, and we propose now
to establish a Government and a Parliament which will be at least as enlightened as the
15 Governments and Parliaments which prevail in various states; therefore, what is the
practical fear against which we are fighting? That is the difficulty I have in relation to this
proposed clause. If I thought there was any-the least-probability or possibility, taking into
consideration the advancement of liberal and tolerant ideas that is constantly going on of
any of these various communities utterly and entirely retracing its steps, I might be with the
20 honorable member. If we, in these communities in which we live, have no right whatever to
anticipate a return of methods which were practised under a different state or Constitution,
under a less liberal measure of progress and advancement; if, as this progress goes on,If we,
in these communities in which we live, have no right whatever to anticipate a return of
methods which were practised under a different state or Constitution, under a less liberal
25 measure of progress and advancement; if, as this progress goes on, the rights of
citizenship are more respected; if the divorce between Church and State becomes
more pronounced; if we have no fear of a recurrence of either the ideas or the methods of
former days with respect to these colonies, then I do suggest that in framing a Constitution
for the Commonwealth of Australia, which we expect to make at least as enlightened, and
30 which we expect to be administered with as much intellectuality as any of the other
Constitutions, we are not going to entertain fears in respect of the Commonwealth which
we will not attempt to entertain with respect to any one of the states.
END QUOTE
.
35 http://74.6.146.244/search/cache?ei=UTF-
8&p=%22Church+of+the+New+Faith+v+Commissioner+of+Pay-Roll+Tax%22&fr=slv1-
&u=www.cdi.gov.au/submissions/183-
ChurchofScientologyAsiaPacificRegion.doc&w=%22church+of+the+new+faith+v+commission
er+of+pay+roll+tax%22&d=Z1aCOPH_QQAX&icp=1&.intl=au
40 QUOTE
Church of Scientology Asia Pacific Region
Office of Special Affairs
Inquiry Into The Definition Of Charities
And Related Organisations
45 C/-The Treasury,
Parkes Place,
Parkes, A.C.T. 2600,
14 January, 2001
Dear Sir,

We refer to your Issues paper ("the Paper") headed "Inquiry Into The Definition Of
Charities And Related Organisations" and your invitation for submissions to be made in
respect of that Inquiry.
Whilst the Inquiry is concerned with "definitional issues" generally those "definitional
5 issues" are presumably most particularly relevant to the income tax law, and it is with that
law that this letter is concerned.
Whilst the Paper stated that submissions should be made no later than 31 December 2000,
your press release of 14 December 2001 advised that you are prepared to accept
submissions lodged after that date provided they are lodged by 19 January 200 1.
10 The Church of Scientology ("the Church") is an Australian religious institution which
has a physical presence in Australia and which incurs expenditure and pursues
objectives principally in Australia. As a consequence all the income derived by the
Church is exempt from Australian income tax.
The Church is satisfied with this aspect of the Australian income tax law and does not
15 believe that this aspect of the Australian income tax law - so far as it is concerned - requires
amendment.
It submits that it is a fundamental feature and expectation of Australian society that
religious institutions should not be subject to income tax.
It is also submitted that for organizations, such as religious organizations, that perform a
20 wide spectrum of charitable activities, it is not appropriate to define the various activities
differently (or to attempt to distinguish between commercial and non-commercial activities
undertaken by the religious organization).
Commercial activities undertaken by a religion are always ancillary to the religion;
they are designed to enable the furtherance of the religion (and associated charitable
25 activities undertaken by the religion). As Murphy J. stated in the Church of the New
Faith v. Commissioner of Pay-roll Tax (Vic.) 83 ATC 4652 "Commercialization is so
characteristic of organized religion that it is absurd to regard it as [disqualifying a
religion]".
It is submitted that all of the activities undertaken by a religion should be regarded as being
30 integral to the religion, and should not be discretely treated for income tax purposes. Not
only would any such treatment be contrary to community expectations, but would introduce
further technical and administrative complexities into the taxation law.
Notwithstanding our general acceptance of the current tax law there are a number of
overseas entities associated with the Church, which are not exempt, or may not be exempt,
35 from Australian income tax since they do not have a physical presence in Australia.
In particular there are various overseas affiliates of the Church either being its parent
church, or various entities established to support that parent church and other churches
affiliated with that church, which provide services to the Church. Various payments are
made to these overseas affiliates. Royalty withholding tax might be payable in respect of
40 some of these payments so made.
It is submitted that payments made by a charity (including a religious organization) exempt
from Australian tax to an overseas institution (which is exempt from tax in that overseas
jurisdiction) should not be subject to Australian tax (including withholding tax).
Such an exemption would reflect the policy of Australian tax law - that is, that n Australian
45 charity (including an Australian religious institution) should not be subject to taxation.
Given that normally a payee requires a payer to absorb withholding tax the imposition of
withholding tax on a payment made by an Australian charity is in substance normally the
imposition of a tax on that Australian charity.
Whilst this is the case in respect of withholding tax generally, the effective imposition of
50 tax on an Australian charity might be said to be particularly contrary to the spirit of the tax
law, where tax is levied on a payment made by one charity to another (albeit that that other
charity does not have a presence in Australia).
Yours faithfully,
Rev. Vicki Hanna
Church of Scientology
END QUOTE
5 .
Again;
http://74.6.146.244/search/cache?ei=UTF-
10 ChurchofScientologyAsiaPacificRegion.doc&w=%22church+of+the+new+faith+v+commission
QUOTE
The Church of Scientology ("the Church") is an Australian religious institution which
15 has a physical presence in Australia and which incurs expenditure and pursues
objectives principally in Australia. As a consequence all the income derived by the
The Church is satisfied with this aspect of the Australian income tax law and does not
believe that this aspect of the Australian income tax law - so far as it is concerned - requires
20 amendment.
It submits that it is a fundamental feature and expectation of Australian society that
religious institutions should not be subject to income tax.
It is also submitted that for organizations, such as religious organizations, that perform a
wide spectrum of charitable activities, it is not appropriate to define the various activities
25 differently (or to attempt to distinguish between commercial and non-commercial activities
undertaken by the religious organization).
Commercial activities undertaken by a religion are always ancillary to the religion;
they are designed to enable the furtherance of the religion (and associated charitable
activities undertaken by the religion). As Murphy J. stated in the Church of the New
30 Faith v. Commissioner of Pay-roll Tax (Vic.) 83 ATC 4652 "Commercialization is so
characteristic of organized religion that it is absurd to regard it as [disqualifying a
religion]".
END QUOTE
.
35 Even if it were to be assumed that the States could exempt payroll tax it would still not be
relevant to federal taxation powers because the Commonwealth by s.116 is specifically
prohibited to favour or be against any religion. As such, any decision regarding any State
imposed payroll tax would be irrelevant for Commonwealth of Australia taxation purposes.
.
40 As shown below also a state has no legislative powers to interfere with the Commonwealth
power to collect customs, duties and/or taxation and hence no State law to list a corporation
and/or religious body as NON-PROFIT can exclude it from general income taxation applicable
under commonwealth of Australia provisions and if the Commonwealth of Australia nevertheless
provides for this then it is in clear violation of the constitutional legal embedded principles, as set
45 out below.
Indeed, if religious bodies are siphoned off monies and not being all returned for public use, but
for example forward it overseas and/or transfer it overseas then it must be deemed it is not a
NON-PROFIT organization. In my view, any NON-PROFIT organization must account for all
monies to the taxation department how this was spend and where monies has not been accounted
50 for then the taxation commissioner cannot accept it is a NON-PROFIT organization.

It also should be understood that there are ample of American Authorities that make clear that
while funding for books by the government can be done to both Public and Religious school, this
is provided the funding is not used for religious purposes!
Where the Commonwealth of Australia provides tax exemption for any religious body then in
5 effect it demand of all Australians taxpayers, including those not belonging to the particular
religious body to pay more tax as to make up for the short fall of the taxation otherwise would
have been collected from religious bodies. As such, the commonwealth is actually causing
ATEHIEST’s to pay, albeit indirectly, the taxes that religious bodies fails to pay.
Much has also been claimed abuse torments of religious bodies upon their members and former
10 members, etc, and this too has been addressed by the Framers of the Constitution as shown
below.
One also have that religious bodies are generally in compound style of properties, where one can
be deemed to be trespassing if one were to enter. In my view, any such religious body cannot be
considered to be for the “PUBLIC PURPOSE” because the public is not permitted to freely to
15 enter. As such any NON-PROFIT (Not for profit) organization that claims to operate for
“PUBLIC PURPOSES” must be proven to be open to the public. Religious compound cannot
be considered to be part of this. Albeit when I accompany my wife to her church, no one is there
to stop me from entering. If one seeks to enter the compound of religious bodies such as
EXCLUSIVE BRETHERN, SCIENTOLOGY, and others then one is not permitted to freely
20 enter and I view this also ought to indicate they are not there for “PUBLIC PURPOSES”
.
As the Framers of the Constitution also highlighted was that there is a separation of State and
church, and indeed the State of Victoria already commenced to do so in 1887 and thereafter and
as such cannot provide any tax exempt status for any body because it is a religious body because
25 doing so would infringe upon the separation of State and church.
State Aid to Religion Abolition Act 1871

QUOTE
1. Repeal of section 53 of the Constitution Act
30 From and after the thirty-first day of December One thousand eight hundred and
seventy-five no moneys shall be set apart for the advancement of the Christian
religion in Victoria
END QUOTE
.
35 In my view where this Act was not amended then upon federation it was clear that the State of
Victoria was not going to fund religion, and while it related to “Christian Religion” the text of
the Act refers to
.
QUOTE
40 "denomination" shall mean any church religious body sect or congregation or
the members of any church formed into or acting as a body of persons for
religious purposes of what kind of faith or form of belief soever;
END QUOTE
.
45 As such it appears to me that any religion, not just Christian religion was intended to be referred
to.
.
At the end of this document I have reproduced a 1-4-2008 correspondence to Federal Education
Minister and Deputy PM Julia Gillard and the 8 July 2008 correspondence to Mr Kevin Rudd
50 PM should be considered also;
.

QUOTE
Version No. 001

Act No. 391/1871
5 Version as at 3 March 2003
TABLE OF PROVISIONS
1. Repeal of section 53 of the Constitution Act 132
2. Definitions 133
10 3. Denominations may dispose of trust lands granted by the Crown and apply proceeds to denominational purposes
4. Application for power to dispose of such lands to be made by head or authorised representative of denomination
5. Notice of application to be given by advertisement and by notice to non-consenting trustees 133
6. Objections to application may be lodged 133
7. Application to be allowed if no objection lodged 134
15 8. Publication of allowance of application to be conclusive evidence that Act has been complied with and trustees
named are entitled upon trusts allowed 134
8. Certificate of title to issue to new trustees as proprietors under "Transfer of Land Statute" and Gazette to be
9. deposited as document declaring trusts 134
10. Governor may frame regulations 134
20 11. No reservation to be made of Crown lands for places of public worship or dwelling-houses for ministers of any
religious denomination after 1st day of July 1870 134
12. Promise or reservation of land not to be affected until application allowed 135
__________________
SCHEDULE 135
25 SCHEDULE 1 135
SCHEDULE 2 136
═══════════════
ENDNOTES 136
1. General Information 136
30 2. Table of Amendments 136
3. Explanatory Details 12
Version No. 001

35 Act No. 391/1871
Version as at 3 March 2003
An Act to provide for the Abolition of State Aid to Religion.
40 BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and
consent of the Legislative Council and the Legislative Assembly of Victoria in this present
Parliament assembled, and by the authority of the same, as follows:

From and after the thirty-first day of December One thousand eight hundred
45 and seventy-five no moneys shall be set apart for the advancement of the
Christian religion in Victoria under the provisions of the Fifty-third Section and
for public worship under the Eighth Part of Schedule D of the "Constitution Act",
and as from that day such provisions shall be and the same are hereby repealed.
2. Definitions
5 In the construction and for the purposes of this Act the following terms shall if not
inconsistent with the context or subject matter have the respective meanings hereby
assigned to them, that is to say—
"the Governor" shall mean the person administering the government acting by
and with the advice of the Executive Council;
10 "the Minister" shall mean the responsible Minister of the Crown administering
this Act;
"denomination" shall mean any church religious body sect or congregation or
the members of any church formed into or acting as a body of persons for
15 "head or authorised representative" shall mean the person accepted as such for
the time being by the Governor;
"trustee" shall mean any person holding that office for the time being, whether
named as such in the Crown grant or approved of or appointed as such by the
Governor, although no legal estate may be vested in such person.
20 3. Denominations may dispose of trust lands granted by the Crown and apply
proceeds to denominational purposes
All lands which at the time of the passing of this Act have been granted by the
Crown without receiving any purchase money or promised or reserved by the
Crown or by the Governor permanently or temporarily for church purposes
25 or church and school purposes or dwelling-houses for the ministers of any
denomination may, subject to the provisions hereinafter contained, be
disposed of by the denomination to or for the benefit of which such lands may
have been granted promised or reserved, and the proceeds of disposition
applied for the purposes of such denomination in such manner as the
30 denomination may deem most beneficial.
4. Application for power to dispose of such lands to be made by head or authorised
representative of denomination
Every application for leave to dispose of any such land shall be made in the form in
the First Schedule hereto by the head or authorised representative of the
35 denomination, with the consent of the trustees of any such land resident in Victoria,
or of the majority thereof, and of the person or persons, if any, entitled to minister
in or occupy any building upon the land.
5. Notice of application to be given by advertisement and by notice to non-consenting
trustees
40 Such application shall be lodged at the office of the Minister, and within one month
from the time of lodging the same the applicant shall give notice thereof by
advertising the same at length once in the Government Gazette and once in some
newspaper circulating in the neighbourhood of the land and by serving a copy of
the application upon any trustee of the land resident in Victoria who shall not have
45 consented to such application.
6. Objections to application may be lodged
Within one month from the publication of the last advertisement any person may
lodge objections to the allowance of the application at the office of the Minister,
and a copy of every objection so lodged shall be forwarded by the Minister to the
applicant.
5 7. Application to be allowed if no objection lodged
If notice of the application shall have been duly given as aforesaid, and if no
objection shall have been lodged within one month from the last advertisement, and
if the land described in the application shall have been granted promised or
reserved as aforesaid, the Governor shall allow the application; and if any objection
10 shall have been lodged as aforesaid the Governor may allow or reject the
application, or with the consent of the applicant modify the trusts thereby proposed,
and if deemed expedient for the purpose of dealing with any such objection may
refer the same for the inquiry and report of any person or persons to be appointed
by the Governor in that behalf; and every such allowance shall be signed by the
15 Governor and shall be in the form in the Second Schedule hereto.
8. Publication of allowance of application to be conclusive evidence that Act has been
complied with and trustees named are entitled upon trusts allowed
Upon the allowance of any application, the allowance thereof, as signed by the
Governor, shall be published in the Government Gazette, and such publication shall
20 be conclusive evidence that all the provisions of this Act in respect of the
application have been complied with and that the trustees named in the statement of
trusts are entitled to the land therein described in fee-simple upon the trusts thereof
discharged of all trusts and limitations as to the use thereof theretofore affecting the
same, anything contained in the seventh section of the "Land Act 1869" to the
25 contrary notwithstanding, and upon the application of such persons the Registrar of
Titles under the "Transfer of Land Statute" shall register such persons as joint
proprietors in fee of the said land with no survivorship.
9. Certificate of title to issue to new trustees as proprietors under "Transfer of Land
Statute" and Gazette to be deposited as document declaring trusts
30 The certificate of title to be issued as aforesaid shall be in the same form and of the
same effect as any other certificate of title issued under the provisions of the
"Transfer of Land Statute" as to the title of the proprietors, the immunity of persons
dealing with them, and in every other respect; and at the time of applying under this
Act for a certificate of title a copy of the Government Gazette containing the
35 allowance shall be deposited with and retained by the Registrar of Titles, under the
provisions of Section thirty-eight of the said Statute, as the document declaring the
trusts of the land as to which the certificate issues.
10. Governor may frame regulations
The Governor may from time to time frame alter and revoke regulations providing
40 for the manner in which applications under this Act, or objections thereto, shall be
lodged or dealt with, or for altering the forms in the Schedules to this Act, so far as
consistent therewith, and for the execution of all orders matters or things arising
under and consistent with this Act and not herein expressly provided for, and such
regulations when published in the Government Gazette, and purporting to be signed
45 by the Minister, shall have the force of law.
11.No reservation to be made of Crown lands for places of public worship or dwelling-
houses for ministers of any religious denomination after 1st day of July 1870

So much of section six of the "Land Act 1869" as relates to reservations of Crown
lands for places of public worship and dwelling-houses for the ministers of any
religious denomination shall be and the same is hereby repealed as from the first
day of July One thousand eight hundred and seventy, save as to any reservation or
5 application for reservation which may have been made thereunder before the said
date.
12. Promise or reservation of land not to be affected until application allowed
Nothing hereinbefore contained shall be deemed to affect any promise or
reservation of land in the third section mentioned, unless and until an application
10 under this Act shall be made in respect thereof, and subject to the allowance of any
such application every such promise or reservation shall be given effect to as if this
Act had not passed.
__________________
SCHEDULE
THE FIRST SCHEDULE
15 I head or authorised representative of the denomination known as with the consent of [names of
consenting trustees] trustees of the land described in the subjoined statement of trusts and of [name and address of
persons so entitled if any] being the person or persons entitled to minister in or occupy a building or buildings upon
the said land, hereby apply to the Governor of the Colony of Victoria for leave to dispose of the said land by the
means and for the purposes mentioned in the said statement of trusts. And I hereby certify that the said land was
20 [state the particulars of the grant promise or reservation of the land] granted by the Crown on the day of
or promised or reserved by on the day of for the purpose of [state in full the purposes for which
the land was expressed to have been granted promised or reserved]: That the only trustees of the said land resident
in the Colony of Victoria are [state names and addresses of all resident trustees] of of of
That the only buildings upon the said land are [state generally the nature of all buildings on the land, or if none, state
25 that there are none] and that the only persons entitled to minister in or occupy the same are the abovenamed [if there
are no such persons state the fact and omit preceding reference to the consent of such persons].
Signature of head or authorised representative—
We consent to this application.
Signature of trustees—
30 Signatures of persons entitled to minister in or occupy building or buildings—
STATEMENT OF TRUSTS
Purposes to which
proceeds of Disposition
Description of Names of Powers of are to be applied
Land trustees Disposition
Describe land Give names, State the powers State distinctly the
fully by metes residences, and which it is purposes to which it is
and bounds. occupations of proposed to vest intended to apply the
proposed in trustees, such moneys arising from
trustees. as "power to sell, the disposition to be
exchange, authorised, or to which
mortgage, or any land taken in
lease," and if any exchange is to be
of such powers applied.
are to be limited,
state the nature of
the limitation.

__________________
THE SECOND SCHEDULE
A statement of trusts having been submitted by the head or authorised representative of the denomination of
5 under the provisions of the "Act to provide for the abolition of State Aid to Religion" for allowance by the Governor,
the same was allowed by him on the day of 18 , and the following is the form in which such
statement of trusts has been allowed [set out statement of trusts in full from the application, subject to any
modification which may have been made therein].
As witness the hand of the Governor of the Colony of Victoria
10 the day of
Governor of the Colony of Victoria.
═══════════════
ENDNOTES
1. General Information
The State Aid to Religion Abolition Act 1871 was assented to on 6
January 1871 and came into operation on 6 January 1871.
2. Table of Amendments
There are no amendments made to the State Aid to Religion Abolition Act 1871 by Acts and subordinate
instruments.
3. Explanatory Details
15 No entries at date of publication.
END QUOTE
.
What is important to be aware of is that any kind of religious body cannot have it both
ways, to have their own say how they govern themselves as freedom of religion while also
20 seeking TAX DEDUCTIONS, TAX EXEMPTIONS, etc at the account of the public purse
without any kind of accountability and more over getting involved in practices with are
repulsive to most Australians, as well as may be unlawful.
.
While I can understand that a body, even so happening to be a religious body, may have a certain
25 tax exemption for being a “PUBLIC PURPOSE” “NON-PROFIT” organization as long as the
religious component plays no part in it.
Taxation, including tax exemptions (as again tax exemptions place a greater burden upon others
to make up for the loss of tax collected) therefore cannot be provided to NON-PUBLIC
PURPOSE bodies because they happen to be religious bodies.
30 .
QUOTE Olcott v. Supervisors, 16 Wall. 678
U.S. Supreme Court
Olcott v. The Supervisors, 83 U.S. 16 Wall. 678 678 (1872)
35 Olcott v. The Supervisors
83 U.S. (16 Wall.) 678
ERROR TO THE CIRCUIT COURT FOR
THE EASTERN DISTRICT OF WISCONSIN
QUOTE
40 What was considered was the uses for which taxation generally, taxation by any
government, might be authorized, and particularly whether the construction and
maintenance of a railroad, owned by a corporation, is a matter of public concern. It
was asserted (what nobody doubts), that the taxing power of a state extends no
farther than to raise money for a public use, as distinguished from private, or to
accomplish some end public in its nature, and it was decided that building a
railroad, if it be constructed and owned by a corporation, though built by authority
5 of the state, is not a matter in which the public has any interest, of such a nature as
to warrant taxation in its aid.
Page 83 U. S. 690
For this reason it was held that the state had no power to authorize the imposition of
taxes to aid in the construction of such a railroad, and therefore that the statute giving
10 Fond du Lac County power to extend such aid was invalid.
END QUOTE
.
What therefore should be understood is that regardless what the High Court of Australia may
have ruled in the SCIENTOLOGY case constitutionally no tax emption or tax free status can be
15 provided by the Commonwealth of Australia upon basis of it being a religious body. Neither can
any funding be provided for religious causes.
.
It should be also understood that the Preamble relating to Al Mighty was made clear by the
Framers of the Constitution didn’t have any purpose as to the constitution itself and more over to
20 make sure this was understood s.116 was inserted as to avert any doubts about it.
.
http://www.news.com.au/story/0,23599,21752187-2,00.html
Tradition
Immigration minister Kevin Andrews said the test would force potential citizens to know
25 about Australia’s political system, Aboriginal history and that the nation’s values were
based on Judeo-Christian tradition.
"It's the sort of thing you would expect someone who goes through school in Australia
would know at the end of secondary school, and probably in some instances at the end of
30 primary school," Mr Andrews told the Herald Sun.
One of the questions is likely to be: "Which city is the capital of Australia: Sydney,
Melbourne, Canberra or Hobart?"
35 Another is: "Which animals are on the coat of arms?" Among the possible answers is:
"Lion and unicorn".
The test will be based on a new resource book, The Australian Way of Life, being drawn up
by the Immigration Department.
40
The US Courts have extensive ruling on matters such as the one quoted below and the Framers of
the Constitution themselves also explained matters.
.
116 Commonwealth not to legislate in respect of religion
45 The Commonwealth shall not make any law for establishing any
religion, or for imposing any religious observance, or for
prohibiting the free exercise of any religion, and no religious test
shall be required as a qualification for any office or public trust
under the Commonwealth.
50

Hints for Religious Exemptions to Immunization
Please read the text below before you download, print, or use the sample religious exemption
letter and support materials provided in the following link:
.
5 Sample Religious Exemption Letter and Supporting Documentation
Refer to the statutes. The laws require that immunization must conflict with the tenets and
practices of a recognized or organized religion of which you are an adherent or member.
However, the law does not require you to name a religion at all. In fact, disclosing
your religion could cause your religious exemption to be challenged.
10 And
Some schools and daycares attempt to require you to give far more information than
required by law. You are not required by law to fill out any form letters from a school or
daycare. The law allows you to submit your own letter and the letter only needs to meet
the bare requirements of the law. Keep it simple; do not feel you need to describe your
15 religious beliefs here as that also is not required by law.
And
Many times, when a school or day care questions your exemption, they are merely
unfamiliar with the law or trying to coerce you to go against your beliefs by
deliberately misrepresenting the law. They are betting on the fact that you don't know
20 your rights.
.
WELSH v. UNITED STATES, 398 U.S. 333 (1970), 398 U.S. 333, WELSH v. UNITED
25 QUOTE
1. The language of 6 (j) cannot be construed (as it was in United States v. Seeger, supra,
and as it is in the prevailing opinion) to exempt from military service all individuals who
30 and belief" to limit religion to its theistic sense and to confine it to formal, organized
worship or shared beliefs by a recognizable and cohesive group. Pp. 348-354.
2. The question of the constitutionality of 6 (j) cannot be avoided by a construction of that
35 exempting those whose conscientious objection claims are founded on a theistic belief
while not exempting those whose claims are based on a secular belief. To comport with
that clause an exemption must be "neutral" and include those whose belief emanates from
a purely moral, ethical, or philosophical source. Pp. 356-361.
40 longstanding policy of exempting religious conscientious objectors, the Court, rather than
nullifying the exemption entirely, should extend its coverage to those like petitioner who
have been unconstitutionally excluded from its coverage. Pp. 361-367.
END QUOTE
.
45 QUOTE
Date: Thu, 15 Nov 2007 02:07:57 +1100 (EST)
From: "Gerrit H. Schorel-Hlavka" <inspector_rikati@yahoo.com.au>
To: "Jim" hunterman@goconnect.net "Jill xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx>
CC; "Garry H." <inspector_rikati@yahoo.com.au>
50 Subject: Re: Fw: would you run?
Jim,
.
I cannot but agree with what Jill wrote, just that somehow what she response upon was not
included!
.
5 While I do not practice religion, my wife does and she herself is commenting that George
Bush claim God told him to invade Iraq. Then we get others who use God or whatever
super human being for whatever they did or are going to do to seek to justify their conduct.
.
Then we have it being said that a person goers either to Hell or Heaven.
10 .
Then when the day of reckoning comes then people will have their judgment day and be
told to go to Hell or Heaven.
.
Moment, if they were not in hell all along but only go after judgment day then where did
15 they go in between? Is there something like a "Holding cell" before anyone goes either to
Hell or Heaven?
.
Is this to mean that a murderer who committed then suicide will be with the victim together
for thousands of years awaiting judgment day in the "Holding cell"?
20 .
Seems that when one dies one cannot go to Heaven or Hell as there is a century or more to
wait before you might be judged to go to your final destination?
.
And then why is it that the death are to rise from the sea for judgment day, if they already
25 were to be in Hell or Heaven?
.
That is why I always make clear to people they can have and practice whatever religion
they desire to have but do leave me out of it.
.
30 And I take it that when I am dead I am dead and if you nevertheless were still to receive an
email from me, then just consider it might have been delayed. After all, not uncommon I
get a copy of an email even so it was send out a day previously. I recall where I came home
and my wife asked why on earth I had not bothered to send her a text message that I was
delayed. I explained I had done so hours earlier. Later that night her mobile went of and she
35 received my text message that had been sent more then 8 hours earlier from about 6
kilometres away. At least she knew I had been telling the truth.
So, if you happen to get a message from a person that is already dead, forget about
reincarnation it simply is a delay in communication!
.
40 And, some decades ago when I was supposed to have dropped death, I saw no pearly gates,
no angels singing, or whatever. My father in law told me then that I was death when I was
on the floor after an accident. Well, I certainly didn't get reincarnated. to me I was not death
albeit may have looked to be and when my time comes then I will not worry about
anything.
45 .
I could always sew some pockets in my clothing to hold money for after I am death, just in
case there might be some special for sale on the other end, but then if they cremate me what
is the use as the money will be burned, if not already stolen in the funeral parlor so I gave
that idea also a big miss.
50 .

Some companies never give up on the death as my wife’s late husband has been death for
so long but we still get offers in the mail that they offering him credit cards, insurance
policies, etc.
Just wonder how he can be insured being death against accidental death?
5 perhaps after reincarnation?
And how is he to use the credit card and more over pay back any monies unless he can
come back by reincarnation and get himself a job to earn monies?
.
We even got correspondence from churches for donations so that they will pray for him that
10 he has a long lasting and healthy life. Excuse me the man is death long ago! If they can
pray for a dead person to have longevity and better health then I somehow am not
encouraged by them offering to pray for me.
.
I think that as like Jill I rather have them to leave me be.
15 .
Gerrit
.
Jill xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx wrote:
Re: Would I run
20
TO WHOM IT MAY CONCERN
Can anyone tell me why these invasive types of religious "messages" are
filled with so much negativity? They appear to thrive on degrading the
25 human race. It would appear to me that God actually hated humans if we
wrer to take any of these messages serious. I see it an invasion of my
privacy. The way these types messagers endevour to attempt to fill the
recipients with a huge guilt trip. I would not pass this type of
negativity on to my worst enemy.
30
I believe, choosing to run or walk away would not make a less a human
being. A natural instinct is to want to stay alive and is a right to
make a choice to live. No one should try to make another feel guilty for
that and what would it prove by taking a bullet for someone who's
35 already dead?
To me this is another example of the fact that religion and common sense
do not mix. Where you have one the other can not exist.
40 The author here also says everyone wants to go to heaven. I did not
choose this person as my spokes person. Who wrote this anyway? I for one
do not want to go to heaven. I want to stay here on earth for as long as
possible. The author of this negative message has also assumed everyone
wants to be blessed. I choose not to be blessed by a self appointed
45 spokes person for god. If ever I decided to be blessed it will be by
someone of my own choosing and I would choose a professional.
I'm not an "atheist" I'm a REALIST. I don't like people trashing other
people for no good reason.
50
Regards,

Jill
Jim wrote:
> ----- Original Message -----
5 > From: Gee Temp
> To: "Undisclosed-Recipient:;"@mail.wide.net.au
> Sent: Wednesday, November 14, 2007 2:37 PM
> Subject: would you run?
>
10 >
>
> Hi folks,
>
> An interesting message for Christians and atheists alike.
15 >
>
END QUOTE
.
As Jill in her response made clear she didn’t choose the person to represent her or to speak for
20 her, but regretfully it is too common for religious bodies to perpetrate upon the individual rights
of others and often the question ought to be if this is to enhance their own financial
circumstances to collect more tax exempt monies?
.
Why indeed should tax exempt monies be used to so to say solicitor others to join their kind of
25 religious or whatever other kind of conduct they may engage into?
.
http://jmm.aaa.net.au/articles/8211.htm
QUOTE
Brethren
30 Around the world, the Christian Brethren are, sometimes courageously, sometimes
fearfully, re-examining their emphases and practices. One of the motivating reasons is the
Brethren assemblies' almost universal decline in numbers and influence. 'We seem to be
stagnating' is a common plaint by perceptive Brethren leaders. In 1990, for example, 250
Brethren leaders from many countries attended a summer school on 'The Christian Brethren
35 Movement' at Regent College, Vancouver (a seminary with Brethren roots). The
conference was told that in Britain, for example, the Brethren movement is in serious
decline, with assemblies down to an average size of about 45 members, half of them are
shrinking, with only a quarter growing. Most have few or no members under 40. In
Australia all the major Christian denominations have larger churches than the largest
40 Brethren assemblies.
I grew up in a Sydney Brethren assembly. I am most grateful for their emphasis on the
Bible, for the encouragement of most of the men to participate in preaching and leading
services (I preached my first 'sermonette' at 13!), and, in particular, for the strong
commitment to the Lord of those who led our fellowship. As a seminar-speaker in the
45 church-at-large, I have been privileged to participate in about eight Brethren-sponsored
conferences in the last two years.
Their agenda included these questions: 'Why aren't we seeing people converted as some
other denominations are?' 'Why are many young people leaving our assemblies for other
Christian churches?' 'Why are conservative Brethren assemblies declining all over the
50 world, and why do growing assemblies almost always have a "progressive" flavour?' 'What
is our response to charismatic renewal, the call for a more public ministry by gifted women,
and what about the God-given gifts of pastors and prophets to the church?' And many more.
ORIGINS. The founders of the Brethren were mainly Anglican evangelicals, and included
Edward Cronin, A.N.Groves, John Vesey Parnell (later Lord Congleton), John Gifford
5 Bellett, and J.N.Darby. They first met in Dublin, but the movement was named 'Plymouth
Brethren' as their first large assembly was formed in Plymouth (in 1831).
The Brethren movement began with a desire to return to the simplicity of apostolic
worship; as a protest against other churches' prevailing clericalism, spiritual dryness and
formalism; and with a strong expectation that Christ would soon return. They met to share
10 the Lord's Supper without any ordained clergy present, believing the Spirit would guide the
participants.
J.N.Darby believed the other churches were in ruins, and so assemblies should not be set up
with elders and deacons. Because of Darby's outstanding personal and academic giftedness
he naturally assumed a significant leadership position in the early days (and was warned by
15 Groves about his propensity to exercise undue authority). Early controversies centred
around 'prophetic' interpretations, Christ's humanity, and separatism from those who were
'contaminated' by the teachings of other groups. In 1847/8 Darby led a breakaway group
which had a more centralized leadership and rigorous separatism. These 'Exclusive
Brethren' have since degenerated into a sectarian authoritarianism, and have themselves
20 split into many factions. Most practise infant (or household) baptism. The 'Open' Brethren,
too, have had their factions (eg. the 'Needed Truth' movement begun in 1889, refusing
membership at the Lord's table to any apart from their own group).
Open or Christian Brethren have had a strong evangelistic and missionary emphasis (at one
stage one in every 100 British Brethren members became a foreign missionary). They have
25 been particularly effective in places like Argentina, southern India, Zaire, Zambia,
Singapore, New Zealand, Northern Tasmania, and Singapore.
HISTORICAL DISTINCTIVES OF THE CHRISTIAN BRETHREN:
The following are the major traditional emphases of the Christian Brethren. Some of these
(eg. eschatology, opposition to fellowship with Christians of other denominations) have
30 recently been modified in more 'open' assemblies (which now generally call themselves
'churches').
* Evangelical doctrinal beliefs, based on authority of the scriptures in all matters of faith
and conduct.
* Anti-denominationalism, which has led to varying degrees of 'exclusiveness' in relating to
35 other Christians. (Anthony Norris Groves warned against the Brethren 'becoming known
more for what they witnessed against than what they witnessed for'). Participation in Billy
Graham crusades has done as much as anything else to break down this tendency.
'Plymouth Brethren' don't like that name. Recently it has been rejected in favour of
'Christian Brethren' or 'Brethren'. (In Australia the term 'Christian Brethren' was accepted
40 by the then Attorney-General when a 'Marriage Bill' passed by Federal parliament in 1961).
* Baptism of believers only, by immersion.
* Weeekly 'breaking of bread', with freedom for any (males) to lead in thanksgiving,
prayer, scripture exposition, etc.

* Opposition to stipended 'ordained' clergy, or church government outside the local
assembly, (although inter-Assembly agencies are set up for coordinating Bible conferences,
camps, overseas missions, publications, and Bible colleges).
* Dispensationalist eschatology, developed by J.N.Darby, and popularized in the Scofield
5 Bible.
* 'We abstain from pleasures and amusements of the world. If we have evening parties, it is
for the purpose of studying the Word and of edifying ourselves together. We do not mix in
politics; we are not of the world; we do not vote.' (J.N.Darby 1878).
* Strong evangelistic and missionary emphasis (their first missionary was A.N. Groves, in
10 Baghdad and India). 'Christian Missions in Many Lands' (CMML) currently has about 1200
missionaries worldwide.
SOME CURRENT CHALLENGES FOR THE BRETHREN.
Sociologist Robert Merton has said all institutions tend, over time, to be degenerative. No
church, denomination, or Christian movement has ever been automatically self-renewing:
15 they all lose their founders' fervour from the second generation onwards. In some ways the
Brethren movement has seen less spiritual declension that most other Christian movements,
due partly to their leadership by non-clergy. The following issues (tinged with some
editorializing!) have emerged in conferences of thoughtful Brethren leaders:
* Are we as biblical as we think we are? Most of the 22,800 Christian denominations or

20 groups think they're more 'biblical' than all the others! (After all, meeting in 'Gospel Halls'
or running Sunday Schools have no biblical precedents!)
* Why are we declining in numbers? Why are most assemblies not seeing regular
conversions?
* How can we biblically reassess the ministry of women in our churches? Brethren scholar
25 F.F. Bruce has said we must view the NT ministry of women through the window of
Galatians 3:28: Christ has abolished man-made hierarchies of race, economics and gender.
Whereas the NT churches were way ahead of their culture in granting significant public
roles to women, our churches are creating a scandal for the opposite reason! (And if God
wanted to raise up a Deborah to lead his people, many of us would stop him. Fortunately
30 God is not a legalist!)
* As with the Pentecostals ought we to review the practice of anyone speaking in worship
services? How does this equate with the NT emphasis on the ministry of the spiritually
gifted?
* What about the criticism by other evangelicals that we are 'docetic' - emphasizing the
35 deity of Christ but downplaying his humanity? Or our eschatology: perhaps
dispensationalism was not the NT churches' way of interpreting 'end-time prophecy'.
* Jesus' criticism of the Pharisees centred on their lack of emphasis on social justice, mercy
etc. (Matthew 23:23, Luke 11:42). They knew their Bibles but missed the whole point!
How many Brethren assemblies have ever, until recently, heard biblical teaching about the
40 great prophetic emphasis on social justice?
* What of Christ's gift of leadership to his people? Sometimes Brethren assemblies are
eldered by people who may be faithful, but lack leadership skills. Is it time for all of our
assemblies/churches to look hard at the appointment of pastor- teachers? What authority
should they have? (Titus was asked by Paul to 'appoint' elders: should a pastor have that
kind of authority today?). The NT seems to have three 'authorities' - episcopal (strong rule
by some individuals), presbyterian (rule by elders), and congregational (participation by all
in the decision-making process).
5 * What traditions are stifling the work of the Spirit in our midst? (A Canadian Brethren
pastor told me the elders in his assembly would not change their 'morning meeting' format
or time to reach outsiders: traditional methods were more important to them than winning
the lost!).
* What is to be our response to the charismatic renewal? Although there are some excesses
10 it is obviously a movement of God's Spirit. Are we in danger of repeating the mistake
Gamaliel warned about, and fighting against God?
* Members of Brethren Assemblies seem to complain more often than those in other
churches about the lack of appropriate pastoral care in times of crisis.
* To what extent are we still 'sectarian'? A sect, sociologically, is a religious group
15 that believes it has a monopoly on the truth, with little or nothing to learn from
others. Everyone outside the sect is 'in error'.
APPRAISAL.
'The contribution of the Brethren... has been out of all proportion to their numbers. They
have held to the authority of the Bible during a time when it has been under constant fire.
20 Many of their members have had leading positions in interdenominational agencies. They
have been active in evangelism and have drawn attention to the church as the body of
Christ, made up of all true believers and equipped with spiritual gifts distributed amongst
the members.' [Harold H. Rowdon, 'The Brethren', The History of Christianity, Lion
Publishing, 1977, pp. 520-521]
25 Commenting on the seminar mentioned at the beginning of this paper, Dr. Cedric Gibbs,
ex-principal of Emmaus Bible College in Sydney, asks: 'Why are some assemblies effective
in outreach and growing in humbers while others stagnate? Three things seem to mark
successful assemblies in all parts of the world: a high view of the authority of Scripture
(preferring this to cherished traditions), Godly and strong leadership (willing to make
30 decisions that involve risk), and relevance to their local communities (even when that
means changing established ways so as to be able to reach our neighbours).
'Has God still got a role for the Brethren Movement? My personal conviction is that he has
not - if by Brethren Movement we mean a pattern of local church life which is the
entrenched and inflexible product of 160 years of history. But the Brethren never wanted to
35 have a name and a 'movement' anyway.
'Has God got a role for assemblies of Christians that want to practise NT church principles,
that will allow themselves to be governed by the Word, that will hear what the Spirit is
saying to the churches, and that will spend themselves in devotion to the person of Christ?
Of course he has - churches like this will grow and prosper under his hand until he returns
40 and presents to himself his 'radiant church, without stain or wrinkle or any other blemish,
but holy and blameless' (Ephesians 5:27).' (Reported in Outreach, Assembly Links, and
New Life, February 1991).
BIBLIOGRAPHY
E. H. Broadbent, The Pilgrim Church, Pickering & Inglis.
G. Brown and B. Mills, The Brethren Today, Paternoster, 1980.
F. R. Coad, A History of the Brethren Movement, Eerdmans, 1976.
Peter Cousins, The Brethren, Religious Education Press, 1982.
J.N.Darby, 'The Doctrines of Early Brethren', The Witness, October 1929.

5 H.L. Ellison, The Household Church, Paternoster, 1959.
Alfred P. Gibbs, Scriptural Principles of Gathering, Light & Liberty Publishing Co., 1934.
George Goodman, God's Principles of Gathering, Pickering & Inglis.
Montague Goodman, God's Greatest Wonder: The Church, Its Foundation, Growth etc.,
Pickering & Inglis.
10 F.B.Hole, Assembly Principles, The Central Bible Truth Depot.
Wm. Hoste, Things Most Surely Believed Among Us, Pickering & Inglis.
G.C.D. Howley, 'Plymouth Brethren' in J.D. Douglas (ed.), The New International
Dictionary of the Christian Church, Zondervan, 1974, pp. 789-780.
Garrison Keilor, Leaving Home: A Collection of Lake Wobegon Stories, Viking, 1987.
15 Peter Lowman, 'A Plea for a Radical Brethrenism', paper presented to Regent College
conference, 1990.
R. McLaren, The Origin and Development of the Open Brethren in North America, 1982.
Ken Newton, A History of the Brethren in Australia, unpublished PhD. dissertation, 1990.
H.H. Rowdon, The Origins of the Brethren, Pickering & Inglis, 1967. -----, 'The Brethren',
20 The History of Christianity, Lion Publishing, 1977, pp. 520-521 -----, Who Are the
Brethren and Does It Matter?, Paternoster, 1986.
Nathan D. Smith, Roots, Renewal and the Brethren, Paternoster, 1986.
H.W. Soltau, The Brethren, Who are They? What are their Doctrines? Pickering & Inglis,
1938.
25 .....
(Paper presented to a combined conference of the Romaine Park Christian Centre and
Montello Baptist Church, May 1993 by Rowland Croucher, Director of John Mark
Ministries, Melbourne).
30 © John Mark Ministries. Articles may be reproduced in any medium, without applying for
permission
END QUOTE
.
http://andrewnorton.info/blog/2008/02/26/have-catholic-schools-made-catholics-an-isolated-sub-
35 group/
QUOTE

Have Catholic schools made Catholics an ‘isolated sub-
group’?
These people often form a narrowly focused school that is aimed at cementing the faith
it’s based on … If we continue as we are, I think we’ll just become more and more
5 isolated sub-groups in our community,”
- Barry McGaw
McGaw is quoted in the context of an article about the proliferation of new ‘faith-based’
independent schools. Of course nobody can know for sure what the long-term
consequences of these schools might be. But history provides an interesting case study, the
10 role of Catholics in a majority Protestant society, Australia. For centuries, Catholics and
Protestants viewed each other with suspicion, and though very rarely violent this was true
in Australia as well. Catholics have always maintained separate schools. According to the
2005 Australian Survey of Social Attitudes (AuSSA), more than half of all current
Catholics attended Catholic schools, government-funded since the 1960s. Only one of the
15 Protestant groups (the Baptists) even gets to 20% ‘other non-government school’
attendance. And being very numerous, Catholics could if they wanted to create a society of
their own within Australian society. But do they?
I’m sure most readers could reflect a moment on their own social circles and realise that
Catholics are an integrated, and integral, part of Australian society. The AuSSA finds
20 Catholics are more likely to join unions than Australians in general, and have average rates
of participation in sports groups and voluntary associations (though perhaps Catholic, I
can’t tell from the data). They are more likely than the general population to agree that
being a good citizen requires understanding other people’s opinions. Despite the Pope’s
views, they are more likely than the general population to support gay marriage. Half of
25 them even agree that public schools don’t receive their fair share of the budget. In 1996, a
third of them were married to Protestants. I doubt the public school lobby can find any
evidence that heading on to fifty years of state aid has made Catholics more isolated or
more a ’sub-group’. But of course why bother with data when prejudice can get the
conclusion you want with no effort?
30 One of the frustrating things about the public school lobby is how rarely they seriously
argue their case. Ironically enough, their belief in public schooling seems to be based on
faith.
This entry was posted on Tuesday, February 26th, 2008 at 9:05 pm and is filed under
Religion, Schools, Social capital & trust. You can follow any responses to this entry
35 through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
END QUOTE
.
It should be understood that the Commonwealth of Australia was deliberately created as a
“religion free legislation zone” so that all people regardless what faith the practices could call
40 the Commonwealth of Australia to be their home.
We find however that Politicians of all colour, and in particular Prime Ministers so to say are
willing to sell their soul to any one who is willing to make a substantial financial donation to his
political party. Hence, this kind of misuse of NON PRIOFIT (NOT-FOR-PROFIT) tax
exempted monies should be stopped from being put into the coffers of the political parties. The
45 Framers of the constitution made clear that any poor person should be able to stand for election,
as a candidate, being qualified by being an elector, however we find that political parties more
and more set ground rules to favour themselves in elections and so undermine the very
democratic system they are to uphold.
Being it the deposit that is demanded, and so conflicts with the Framers of the Constitution legal
50 principle embedded in the constitution that any person being an elector is by this qualified to be a
candidate in federal elections, or the payment per vote, for long being the ire of my attention that
it provides political parties a financial advantage to campaign in elections knowing they will be
getting a share of payment per vote, where as an INDEPENDENT candidate would have no
expectations as such and hence cannot rely upon this to budget for an election campaign.
5 It is argued that election campaigns are for the benefit of electors but when one consider the
barking dogs advertisement of a few years ago (By the Australian Democrats as I recall) then
obviously it is more of a sheer waste of taxpayers monies. Indeed, most advertising is deceptive,
untrue and bias and lack generally any real issue of educating the general community. If the same
system was used by other unions (As political parties are after all unions!) in the ordinary
10 workplace environment then the very politicians misusing taxpayers monies then would go
against unions if they dared to force an employer to pay for their election campaigns. As such we
have DOUBLE STANDARDS.
.
Having been a candidate in many kind of political elections I refused to incur the huge associated
15 cost and obviously didn’t get elected as few people would be aware then what I stood for as the
media will generally publish articles about those candidates who publish adds with them. Once
the paper finally published that I was a candidate after the election was already held! As a
publisher, albeit of the record made clear to me, he had to look after his customers and so if I
were to advertise with them then I too could be provided with being mentioned in articles.
20 .
What we have therefore is very clear that taxpayers dollars are collected by religious and other
NON PRIOFIT (NOT-FOR-PROFIT) tax exempted entities, by way of tax exempted
donations, or other ways, and then donated to political parties as a way to seek to influence
politicians in their decision making conduct.
25 .
The Commonwealth of Australia Constitution Act1900 (UK)
QUOTE
44 Disqualification
Any person who:
30 (i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or
is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a
foreign power; or
(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
35 imprisonment for one year or longer; or
(iii) is an undischarged bankrupt or insolvent; or
(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; or
(v) has any direct or indirect pecuniary interest in any agreement with the Public Service of
40 the Commonwealth otherwise than as a member and in common with the other members of
an
incorporated company consisting of more than twenty-five persons;
shall be incapable of being chosen or of sitting as a senator or a member of the House of
Representatives.
45 But subsection (iv) does not apply to the office of any of the Queen’s Ministers of State for the
Commonwealth, or of any of the Queen’s Ministers for a State, 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.
50
45 Vacancy on happening of disqualification
If a senator or member of the House of Representatives:
(i) 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 takes or agrees to take any fee or honorarium for services
rendered to the Commonwealth, or for services rendered in the Parliament to any
5 person or State;
his place shall thereupon become vacant.
END QUOTE
.
As such by the provisions of s.45(iii) any politician who accepts monies, directly and/or
10 indirectly from “any person” (Including a NON PRIOFIT (NOT-FOR-PROFIT) tax exempted
entity) must be perceived to be in breach of s.45(iii).
This, as the monies donated will in the end even if indirectly allow the politician to pay less to
his financial contribution for the election campaign as where there are no donations then the
politician would have to pay more. It doesn’t matter if the monies are not paid directly to the
15 politicians as what is relevant is that the politician even if indirectly has a financial benefit by the
donations. Hence, where we find often politicians, after being elected, to make substantial
benefits, being it grants, bounties, etc, that those politicians are basically seeling their soul.
.
The former Prime Minister John Howard as I understood it made known that he had an open
20 door for the EXCLUSIVE BRETHERN because they had made substantial donations to his
political party. In my view, a Prime Minister is being paid to perform a job for all people as he is
like any other minister appointed not to serve his political party but to serve the Crown for and
on behalf of the people, irrespective of the race, colour, religion or whatever, and as such any
notion that a Prime minister or for that any other minister is more available for those who donate
25 monies to his political party is in my view so to say selling himself out to the highest bidder.
.
The folloowing articles are another example how religion is used to even justify war. While this
was in the United Kingdom, it must not be overlooked that in the Commonwealth of Australia
any war cannot be entered in to (unless being actually attacked by an enemy) unless the
30 Governor-General has published in the Gazette a DECLARATION OF WAR subsequently to
Cabinet having authorized the Minister of Defence to request the Governor-General to proclaim
a war against a certain country.
One will find however that no DECLARATION OF WAR was Gazetted and hence the armed
invasion such as into Iraq was unconstitutional, and yet billions of tax payers monies were
35 nevertheless used for this unconstitutional murderous invasion!
.
http://www.telegraph.co.uk/global/main.jhtml?xml=/global/2007/11/25/noindex/nblair125.xml
QUOTE
Mention God and you're a "nutter"- Tony blair has sparked controversy by claiming that
40 people who speak about their religious faith can be viewed by society as "nutters".
Tony Blair: Mention God and you're a 'nutter'

By Jonathan Wynne-Jones and Patrick Hennessy
45 Last Updated: 12:01am GMT 25/11/2007
Tony Blair has sparked controversy by claiming that people who speak about their religious
faith can be viewed by society as "nutters".
Your view: Can politics and religion mix? John Humphrys: We prefer politicians
50 without a hotline to God Cardinal urged Blair not to reveal conversion at Vatican

The former prime minister's comments came as he admitted for the first time that his faith
was "hugely important" in influencing his decisions during his decade in power at Number
10, including going to war with Iraq in 2003.
5 Mr Blair complained that he had been unable to follow the example of US politicians, such
as President George W. Bush, in being open about his faith because people in Britain
regarded religion with suspicion.
"It's difficult if you talk about religious faith in our political system," Mr Blair said. "If you
are in the American political system or others then you can talk about religious faith and
10 people say 'yes, that's fair enough' and it is something they respond to quite naturally.
"You talk about it in our system and, frankly, people do think you're a nutter. I mean …
you may go off and sit in the corner and … commune with the man upstairs and then come
back and say 'right, I've been told the answer and that's it'."
Even Alastair Campbell - his former communications director who once said, "We don't do
15 God" - has conceded that Mr Blair's Christian faith played a central role in shaping "what
he felt was important".
Peter Mandelson, one of Mr Blair's confidants, claimed that the former premier "takes a
Bible with him wherever he goes" and habitually reads it last thing at night.
His comments, which will be broadcast next Sunday in a BBC1 television documentary,
20 The Blair Years, have been welcomed by leading Church figures, who fear that the rise of
secularism is pushing religion to the margins of society.
The Archbishop of York, the Most Rev John Sentamu, said: "Mr Blair's comments
highlight the need for greater recognition to be given to the role faith has played in shaping
our country. Those secularists who would dismiss faith as nothing more than a private
25 affair are profoundly mistaken in their understanding of faith."
However, Mr Blair, who is now a Middle East peace envoy, has been attacked by
commentators who say that religion should be separated from politics and by those who
feel that many of his decisions betrayed the Christian community.
In the interview, Mr Blair, who was highly reluctant ever to discuss his faith during his
30 time in office, admitted: "If I am honest about it, of course it was hugely important. You
know you can't have a religious faith and it be an insignificant aspect because it's profound
about you and about you as a human being.
"There is no point in me denying it. I happen to have religious conviction. I don't actually
think there is anything wrong in having religious conviction - on the contrary, I think it is a
35 strength for people."
Mr Blair is a regular churchgoer who was confirmed as an Anglican while at Oxford
University, but has since attended Mass with his Roman Catholic wife, Cherie, and is
expected to convert within the next few months.
He continued: "To do the prime minister's job properly you need to be able to separate
40 yourself from the magnitude of the consequences of the decisions you are taking the whole
time. Which doesn't mean to say … that you're insensitive to the magnitude of those
consequences or that you don't feel them deeply.
"If you don't have that strength it's difficult to do the job, which is why the job is as much
about character and temperament as it is about anything else. But for me having faith was
45 an important part of being able to do that… Ultimately I think you've got to do what you
think is right."
Mr Blair's opponents say his religious zeal blinded him to the consequences of his actions,
and point to his belief that his decision to go to war would be judged by God.
The Rt Rev Kieran Conry, the Roman Catholic Bishop of Arundel and Brighton, said last
50 night that Mr Blair's comments echoed the feelings of religious leaders.
Mr Campbell, in the same TV programme as Mr Blair, said the British public were "a bit
wary of politicians who go on about God".
Related articles
John Humphrys: Politicians without hotline to God
Analysis: To many of us he is a hypocrite
5 Cardinal urged Blair not to reveal conversion
8 November 2007: Tony Blair to become Catholic 'within weeks'
23 June 2007: Blair meets Pope amid conversion rumours
15 October 2004: Blair is ready to convert, says Catholic priest
END QUOTE
10 .
http://www.telegraph.co.uk/news/main.jhtml;jsessionid=YNQ11I5O1Q21DQFIQMGSFFWAV
CBQWIV0?xml=/news/2007/11/25/nblair225.xml
QUOTE
Tomany of us he isn't a nutter but a hypocrite

15
By Damian Thompson
Last Updated: 1:45am GMT 26/11/2007
Analysis
20 In next Sunday's BBC interview, Tony Blair says that as prime minister he shied away from
talking about religion for fear of being thought a "-nutter". But in the eyes of many Roman
Catholics, he is something worse: a hypocrite.
There was passionate opposition in the Catholic community to the Iraq war, which Pope
John Paul II condemned unreservedly. That anger is now subsiding, but there is still
25 discomfort at the thought of a warmonger being received into the Church. The defensive
tone of this latest interview will do nothing to impress Mr Blair's critics.
The real sticking point, however, is the issue of abortion. Catholics have not forgotten that
the former PM, although claiming to oppose abortion, consistently voted with hard-line
30 pro-abortionists at a time when he was already attending Mass. This they regard as
sickening hypocrisy - and they wonder why Cardinal Murphy-O'Connor is so silent on the
matter.
The cardinal is expected to receive Mr Blair into the Church in his -private chapel quietly
in the next few months, having dissuaded him from attracting bad publicity by announcing
35 his conversion during his visit to Rome this summer.
Last week, a respected Westminster priest - who is not dentified with any faction and has
never criticised the cardinal publicly - told me he was "in despair" over his boss's eagerness
to claim the scalp of a politician who has fought against the pro-life cause.
This priest believes that the reception of Mr Blair will scandalise the faithful and anger the
40 Vatican, which is already irritated by Cardinal Murphy-O'Connor's opposition to Pope
Benedict's liturgical reforms.
The truth is that, if Mr Blair had been born a Roman Catholic, he would already be barred
from receiving Communion by many bishops on account of his support for abortion. He
might even face excommunication.
45 Yet this is the man whom Cardinal Murphy-O'Connor feted at a reception in Rome, and
who will probably be afforded the unique honour of joining the Church in His -Eminence's
private chapel, fussed over by sycophantic clergy.
The late Cardinal Thomas -Winning was so disgusted by Tony Blair's equivocation on
abortion that he could barely bring himself to speak to him.

Fortunately for Mr Blair, the leader of the Church in England and Wales is more
accommodating.
• Damian Thompson is editor in chief of 'The Catholic Herald'
END QUOTE
5 .
What politicians see to overlook is that with the swell of births among Muslims then in time the
Commonwealth of Australia will have a majority of Muslims and then they can use the very tax
abuses now used to favour certain religions as to give tax credits, tax exemptions, and whatever
to so to say build a Mosk on every street corner and they can simply hold that what was good
10 enough in law to serve Christians is good enough now for them.
To me any tax exemption, tax credit, etc, is the same as Appropriation and therefore must be
governed by an Appropriation bills. If therefore no appropriation bill can be legislated for
religious funding then neither can there by any de facto appropriation for religion by way of tax
exemption, tax deduction, tax credit, etc.
15 .
QUOTE
Peter Costello - Treasurer
Tax deductibility of gifts to St Paul's Cathedral restoration fund
23 April 2002 – Press Release
20
Today I am announcing the Government's decision to amend the income tax law to
allow tax deductions for gifts to the value of $2 or more to the St Paul's Cathedral
Restoration Fund.
25 As a result, gifts made to the Fund from today to 22 April 2004, will be deductible
for income tax purposes.
The Fund has been established to raise money for the restoration, refurbishment
and improvement of St Paul's Anglican Cathedral, Melbourne and in particular for
30 important repair and restoration work to the Cathedral spires.
St Paul's is an important place of worship and a significant Melbourne landmark

that has pride of place at the heart of the city. The Cathedral was consecrated in
1891, with the erection of the spires beginning in 1926. In recent years there has
35 been an appeal to enable the restoration of the Cathedral's magnificent organ, and
the Cathedral has benefited from a grant under the Government's Federation
Fund. The granting of gift deductibility status will complement these measures and
assist the Cathedral to raise additional funds, thereby ensuring the important
restoration work can be completed.
40
Legislation to give effect to this announcement will be introduced as soon as
practicable.
Taxpayers should ensure that they receive a receipt for their donation.
45
Contact:Niki Savva 02 62 777 340
END QUOTE
.
As is made clear in this document any funding (including tax deductions, etc) must be for the
50 “whole of the Commonwealth” and not just for any particular entity and certainly not for a
religious entity.
.
More over the office of the Prime Minister has no constitutional validity of using about $400
million as his own slash funds to spend as he likes because the constitution doesn’t provide for a
legislative power for a Prime minister’s office.
.
5 http://en.wikipedia.org/wiki/Scientology_as_a_state-recognized_religion
QUOTE
[edit] Australia
In 1982, there was a ruling by the High Court of Australia, in Church of the New Faith v.
Commissioner Of Pay-roll Tax. The court ruled that the government of Victoria could
10 not deny the Church the right to operate in Victoria under the legal status of
"religion." All three judges in the case found that the Church of the New Faith ( Church of
Scientology ) was a religion. Justices Mason and Brennan said (referring to the Church of
Scientology as "the Corporation"):
15 The question to which the evidence was directed was not whether the beliefs, practices and
observances of the persons in ultimate command of the organization constituted a religion
but whether those of the general group of adherents constituted a religion. The question
which the parties resolved to litigate must be taken to be whether the beliefs, practices and
observances which the general group of adherents accept is a religion.
20
And in conclusion:
It follows that, whatever be the intentions of Mr. Hubbard and whatever be the motivation
of the Corporation, the state of the evidence in this case requires a finding that the general
25 group of adherents have a religion. The question
whether their beliefs, practices and observances are a religion must, in the state of that
evidence, be answered affirmatively. That answer, according to the conventional basis
adopted by the parties in fighting the case, must lead to a judgment for the Corporation.
30 Justice Murphy said:
Conclusion. The applicant has easily

discharged the onus of showing that it is religious. The conclusion that it is a religious
institution entitled to the tax exemption is irresistible.
35
and
The conclusion to which we have ultimately come is that Scientology is, for relevant
purposes, a religion. With due respect to Crockett J. and the members of the Full
40 Supreme Court who reached a contrary conclusion, it seems to us that there are elements
and characteristics of Scientology in Australia , as disclosed by the evidence, which cannot
be denied.
END QUOTE
..
45 Again
http://en.wikipedia.org/wiki/Scientology_as_a_state-recognized_religion
QUOTE
[edit] Australia
In 1982, there was a ruling by the High Court of Australia, in Church of the New Faith v.
50 Commissioner Of Pay-roll Tax. The court ruled that the government of Victoria could
not deny the Church the right to operate in Victoria under the legal status of
"religion."
END QUOTE
.
This should be placed in its proper context that where a State allows for exclusion of pay roll tax
for any religion then any form of religion or alleged religion is to be excluded. However, if
5 payroll tax were to be taken over by the Commonwealth, and for this all the Commonwealth
needed to do was to legislate for payroll tax, then that would be the end of any religion to be
excluded from payroll tax.
.
It should be understood that the exclusion of religions from payroll tax undermines trade and
10 commerce in that a hardworking person could set up a business and has to pay payroll tax while
then a religious organisation could open up next door having the same product but by not having
to pay payroll tax then can undermine the hard working business. That in my view is not what
was intended and I view that the States should either abolish exclusions of religious bodies of
payroll tax or the Commonwealth of Australia should commence to legislate for payroll tax and
15 by this the States automatically are prohibited to raise payroll tax as revenue.
.
However,, one has to be careful that this is not to aid the political party in office in the federal
government as to blackmail the States.
.
20 Currently the push for the States to hand over their powers regarding hospital is a sheer and utter
nonsense because the constitutional framework is that either one or the other but not both can
legislate on a subject matter. The Prime Minister isn’t giving away his own moneys but uses the
monies of hardworking taxpayers and then as I view it does no less then to blackmail the States
as other Prime Minister before him did likewise.
25 .
If the Commonwealth collects say 1000X on monies and requires for usage of the public service
and the running of the Department to use 600X of this then it is not for the Federal government
to terrorise the States to hold them at ransom that unless they comply with its demand they can
only get a certain slice of the monies where as by increments the Federal government is gaining
30 more and more power, albeit unconstitutional, and then willing to provide more of the balance of
the 400X then what we have is to show the youth of today that blackmail and terrorism really is
acceptable if it is perpetrated by the Federal government against the States, and so its State
citizens.
.
35 It should be understood that regardless if the States or the Commonwealth pays the bill in the end
the monies are collected from the taxpayers! As such it is not monies belonging to the
commonwealth or the States but the taxpayers. As such when the Federal government promoted
to provide more funding if the States hand over certain legislative powers then the
Commonwealth is simply extorting powers from the States without any real financial benefits to
40 the citizens.
.
As has been set out in this document if there are States who for example have a WATER dispute
that falls outside the exclusive legislative powers of one particular State then to provide an
overall legislative provision it may be suitable in certain circumstances to hand over to the
45 Commonwealth, provided it is by consent by way of State referendum of the relevant States, to
do so. However, when it goes to the interference of country hospitals then this is no business of
the Commonwealth and it cannot blackmail any State because it is an internal State matter.
.
While there has been talk about another referendum about a REPUBLIC, again there is no
50 legislative powers for the commonwealth to do so and hence it neither can promote a referendum
regarding a matter to which s.128 referendum powers cannot be applied for.
.
What we therefore have is that billions of tax payers monies is being wasted time and time again
and there appears to be no overall supervision in regard of this.
.
Regardless what might be argued against Iran, at least as I understand it there is a constitutional
5 body that requires each and every Bill proposed to be placed before the Parliament first to be
checked if this is constitutionally permissible.
.
In the Commonwealth of Australia it is all done on political views and the rot coming from this is
destroying many lives in the process.
10 .
The Vivian Alvarez Solon case is a clear example where the government became the terrorist
against this woman and it was the tax payers who ended up having to pay a reported $10 million
dollars for the Minister disregard of the RULE OF LAW and DUE PROCESS OF LAW.
.
I think we might, on the attempt to found this great Commonwealth, just advance one
step, not beyond the substance of the legislation, but beyond the form of the
legislation, of the different colonies, and say that there shall be embedded in the
20 Constitution the righteous principle that the Ministers of the Crown and their officials
shall be liable for any arbitrary act or wrong they may do, in the same way as any
private person would be.
END QUOTE
.
25 In my view it should have been the Minister and the officials that should have been personally
sued for acting outside constitutional powers as I have set out in past publications the entire
COMMONWEALTH DETENTION CENTRE system is unconstitutional and so also the way
deportations are conducted.
.
30 So, who really is looking after the proper usage of taxpayers monies?
.
As I have for years recommended is that all governments of the States/Territories and
Commonwealth have a non-political OFFICE-OF-THE-GUARDIAN, a constitutional body
that is answerable to the Crown, being it the Governor or Governor General, pending which
35 entity is relates to, and which has to provide advise to any Government as to its views about the
constitutional validity of any Bills proposed to be submitted to the Parliament. Also, that where a
Bill is deemed to be in conflict to the constitution and the Bill nevertheless is presented to the
Parliament then the OFFICE-OF-THE-GUARDIAN has the legal position to place the matter
before the High Court of Australia as to challenge before the Court the constitutional validity of
40 the bill. In this manner Bills which are suspected from being in conflict with the constitution then
can be adjudicated upon before having the parliament wasting a lot of time (and so monies) on
debating a Bill that may never be constitutionally valid.
What this also means is that instead of leaving it up to a citizen to try to challenge the legislation
to its validity, and remember the Cocopop legislation, then it will be taken before the Bill is
45 debated upon.
.
The monies it would cost to have an OFFICE-OF-THE-GUARDIAN at each government
would be easily saved by having legislation avoided that are unconstitutional and/or otherwise
may be inappropriate.
50 .
More over, this OFFICE-OF-THE-GUARDIAN could be also used to provide statements as to
what each section of the constitution means and how it can be applied, so that it wouldn’t make a
difference if it is a Member of Government, a judge or any citizen they all would be able to be
provided with precisely the same information.
.
Let’s use an example.
5 In 1967 there was this s51.(xxvi) referendum held about removing the wording about Aboriginals
from that section so that the Commonwealth was able to legislate in regard of Aboriginals. As far
as I understood it this was a s.128 referendum about Aboriginals and not about any other race,
being it Chines, Japanese or whatever.
Anyone competent constitutionalist will be aware that a section of the constitution has a meaning
10 that is applicable as is and it cannot be having a different meaning pending which person it
relates to. As such the original meaning of s.51(xxvi) from federation was that the
commonwealth of Australia could legislate against a specific race and by this they would
automatically loose their franchise (Obviously to avoid them voting to so to say overthrow the
legislation.) but this section could not be used against the “general community”! (See also
15 Hansard debates such as of 2-3-1898)
Aboriginals albeit being excluded from counting of the population were not deprived whatsoever
by the commonwealth and neither could be deprived by the Commonwealth of exercising their
franchise (see s.41of the constitution) once they had been granted franchise by their colony/State.
As such the 1908 White only legislation was unconstitutional where it denied Aboriginals to vote
20 because they all along had the right to vote in federal elections once they had obtained
colonial/State franchise.
It was for this, as I understand it to be, also that when in the early 1950’s the Federal government
entertained to amend s.51(xxvi) it’s legal advise was that it could not use s.51(xxvi) for this
purpose but rather it should create a new section for this. The Federal government then
25 abandoned the s.51(xxvi) altogether. However the Aboriginals themselves and I understand the
United Nations also specifically pressed for the s.51(xxvi) amendment in the belief that it would
enhance Aboriginals, where to the contrary on constitutional grounds Aboriginals from by
federation being regarded to be equal to other Australians were no deemed to be equal to other
“coloured inferior races”. Rather then gaining franchise they lost it by the s.51(xxvi) referendum
30 but politicians simply do not understand this as much as they never understood that “citizenship”
is a State legislative power and has nothing to do with “nationality”.
.
As such having an OFFICE-OF-THE-GUARDIAN can only benefit the understanding of
Australians what the constitution is really about and this whole nonsense about Monarchy versus
35 Republic is precisely that nonsense because the constitution doesn’t permit the Commonwealth
of Australia to be turned into some republic, as it is not even a country!
.
No country exist with the name Commonwealth of Australia as it is a “POLITICAL UNION”
and those who cannot even grasp this certainly better start to learn what the constitution really is
40 about.
We have politicians travelling the world at taxpayers monies even to study a garbage dump
overseas where they don’t even understand what the constitution is about and indeed their own
nationality as they claim it is “Australian citizenship” whereas no such nationality exist as
Australians are in the end either natural born or naturalised British nationals.
45
http://www.geocities.com/englishreports/77ER377.html
Calvin's Case 7 Coke Report 1a, 77 ER 377
QUOTE
4. And as to the fourth, it is less than a dream of a shadow, or a shadow of a dream: for it
50 hath been often said, natural legitimation respecteth actual obedience to the sovereign at
the time of the birth; for as the antenati remain aliens as to the Crown of England, because
they were born when there were several Kings of the several kingdoms, and the [7-Coke-27
b] uniting of the kingdoms by descent subsequent cannot make him a subject to that Crown
to which he was alien at the time of his birth: so albeit the kingdoms (which Almighty God
of his infinite goodness and mercy divert) should by descent be divided, and governed by
several Kings; yet it was resolved, that all those that were born under one natural
5 obedience while the realms were united under one sovereign, should remain natural
born subjects, and no aliens; for that naturalization due and vested by birthright,
cannot by any separation of the Crowns afterward be taken away: nor he that was by
judgment of law a natural subject at the time of his birth, become an alien by such a
matter ex post facto.
10 END QUOTE
.
QUOTE
15 3. Where the King hath several kingdoms by several titles and descents, there also are the
ligeances several: but the King hath these two kingdoms by several titles and descents;
therefore the ligeances are several. These three arguments are collected also from the
words of the plea before remembered.
3. Leges. From the several and distinct laws of either kingdom, they did reason thus:
20 1. Every subject that is born out of the extent and reach of the laws of England,
cannot by judgment of those laws be a natural subject to the King, in respect of his
kingdom of England: but the plaintiff was born at Edinburgh, out of the extent and
reach of the laws of England; therefore the plaintiff by the judgment of the laws of
England cannot be a natural subject to the' King, as of his kingdom of England.
25 END QUOTE
.
QUOTE
30 By all which it is manifest, that the protection and government of the King is general over
all his dominions and kingdoms, as well in time of peace by justice, as in time of war by
the sword, and that all be at his command, and under his obedience.
END QUOTE
.
35 http://www.geocities.com/englishreports/77ER377.html
QUOTE
3. There be regularly (unless it be in special cases) three incidents to a subject born. 1.
That the parents be under the actual obedience of the King. 2. That the place of his birth be
40 within the King's dominion. And, 3. The time of his birth is chiefly to be considered; for he
cannot be a subject born of one kingdom that was born under the ligeance of a King of
another kingdom, albeit afterwards one kingdom descend to the King of the other. For the
first, it is termed actual obedience, because, though the King f' England hath absolute right
to other kingdoms or dominions, as France, Aquitai, Normandy, &c. yet seeing the King is
45 not in actual possession thereof, none born there since the Crown of England was out of
actual possession thereof, are subjects to the King of England. 2. The place is observable,
but so as many times ligeance or obedience without any place within the King's dominions
may make a subject born, but any place within the King's dominions may make a subject
born, but any place within the King's dominions without obedience can never produce a
50 natural subject. And therefore if any of the King's ambassadors in foreign nations, have
children there of their wives, being English women, by the common laws of England they
are natural-born subjects, and yet they are born out-of the King's dominions. But if
enemies should come into any of the King's dominions, and surprise any castle or fort, and
[7-Coke-18 b] possess the same by hostility, and have issue there, that issue is no subject
to the King, though he be born within his dominions, for that he was not born under the
King's ligeance or obedience. But the time of his (a) birth is of the essence of a subject
5 born; for he cannot be a subject to the King of England, unless at the time of his birth he
was under the ligeance and obedience of the King. And that is the reason that antenati in
Scotland (for that at the time of their birth they were under the ligeance and obedience, of
another King) are aliens born, in respect of the time of their birth.
END QUOTE
10 .
Those who favour a REPUBLIC are entitled to pursue this as long as they do this in a lawful
manner and not try to misuse s.128 referendum powers of the constitution for this.
In my published books in the INSPECTOR-RIKATI® series on certain constitutional and other
legal issues I have canvassed this issue extensively but do not accept that taxation monies should
15 be used and be squandered on this issue where politicians themselves haven’t got a clue what the
meaning and application stands for.
.
Again, the 1967 amendment was a con-job upon Aboriginals and also upon the electors because
say I was in power I could have deported every Aboriginal as non-citizen because they are
20 constitutionally no longer a citizen because the moment the Commonwealth legislated against
Aboriginals their citizenship was AUTOMATICALLY lost.
.
This is the danger when people are like sheep following what some political leaders are pursuing
where they haven’t got a clue what really is constitutionally applicable.
25 .
After all, where the amendment was relating to Aboriginals and not as to Chines, Japanese, etc,
then clearly s.51(xxvi) was not intended to alter the application in regard of other races!
Therefore the inclusion of Aboriginals means they are then to be regarded in the same manner as
other races.
30 .
It also means that the Northern Territory laws and the monies used from taxpayers in the process
are used unconstitutional as the Framers of the Constitution made clear that any law within
s.51(xxvi) was to be used against a special race against all people of that race. It means that when
there is legislation against Aboriginals, then it doesn’t matter if the Aboriginal is a Member of
35 Parliament, an Aboriginal as a lawyer, doctor, office worker, public servant, judge or, so to say,
simply sleeping under a tree as the legislation applies to all Aboriginals. Meaning that to legislate
against Aboriginals that they must ensure their child attend to an education facility or they cannot
use the pool then the same applies to Aboriginal parents anywhere else in the Commonwealth of
Australia. It means that where any law is enacted against Aboriginals all members of Parliament
40 (including those of the Northern Territory) are no longer State/Territorian citizens and hence
neither hold “Australian citizens” (being a political status and nothing to do with nationality) and
so have no right to be a lawyers/judge, Member of Parliament, elector, etc.
.
For the records this was extensively litigated by me as a constitutional issued in a 5-year legal
45 battle before the County Court of Victoria and on 19 July 2006 I comprehensively defeated the
Commonwealth of Australia on all constitutional issues I had raised. As such, it is an issue that
was subject to a constitutional challenge and the Court upheld both my cases against the
Commonwealth of Australia.
.
50 It seems therefore to be clear that there is an urgent need to have an OFFICE-OF-THE-
GUARDIAN that can finally provide constitutional FACTS rather then FICTION.
.
It could then without any political bias issue statements as to what really is constitutionally
applicable and more over instead of having High Court of Australia judges having to use some
law clerk or other person to try to discover what is constitutionally applicable then they can call
upon the OFFICE-OF-THE-GUARDIAN and request a copy of its statement and then the
5 judges can work from there on to do their own further investigation if they desire to do so. We
had previously a judge appointed to the High Court of Australia where this judge refused to hand
down a decision because he declared he didn’t know the constitutional issue. With a split 3 for
and 3 against the appeal the appellant lost the case. In my view it is sheer and utter nonsense that
this kind of situation can exist. We know towel about the Cross Vesting Act in the Wakim HCA
10 27 of 1999 where it was found to be unconstitutional albeit very few people are aware that
already way back in 1994 I challenged its application in the High Court of Australia! Dawson J
then merely assumed it was a valid application as he did also in 1995!
.
And as to the Cocopop taxes that were unconstitutionally collected the Framers of the
15 Constitution made clear that any tax wrongly collected had to be returned to those whom were
they payers of the tax. The Commonwealth cannot keep the taxes nor donate it to anyone but
must return (refund) the monies to its rightful owners. The fact that the Australian Taxation
Office (ATO) as like with the GST has no records is immaterial because the onus is upon the
Commonwealth to ensure that every cent on taxation extracted from a citizen is refunded to the
20 citizen where it was wrongly extracted though any agent (business) that acted on behalf of the
ATO.
.
What we have now is that businesses, in particularly on so called Sunday markets (albeit they
often are operating on other days also, who charge for GST but do not at all pass this on to the
25 ATO because they do not have any record keeping. Despite my recommendations over a number
of years that the ATO should make it mandatory that business operating on such kind of Sunday
market should be using ATO issued payments books with pages numbered as to show the
relevant monies collected and the amount of GST received, this still has not been implemented
even so like the Thomastown Market in Melbourne there are millions of dollars changing hand in
30 one day alone.
.
Likewise so the issue of (back on that again) tax exemptions, tax deductions, tax credits or
whatever regarding religious bodies.
Constitutionally if there is a tax exemption for religious bodies then it must also apply to a non-
35 religious body, that is on a federal level!
As such, any taxation investigation/inquiry better appropriately deals with this also.
.
In my view an OFFICE-OF-THE-GUARDIAN that can avoid simular absurdities can in fact
save a lot of taxpayers monies in the process.
40 .
To underline my submissions as to clamping down on misuse of NON PROFIT (NOT-FOR-
PROFIT) entities that are using the monies collected for paying of victims of sexual abuse and,
as I understand it, often under conditions of “silence” (confidential agreement) by a victim then I
view this cannot be deemed to be for “PUBLIC PURPOSES” for which NON PROFIT (NOT-
45 FOR-PROFIT) entities are registered for I now will quote some details.
.
QUOTE
STATEMENT BY THE GOVERNOR-GENERAL
20 FEBRUARY 2002
50
Sexual abuse of children is totally abhorrent to me, and always has been. I believe it to be
one of the most repugnant and serious of crimes. It can never be condoned or excused.
The community generally and more particularly those in positions of authority have a clear
obligation to protect children from this vile activity and abuse of power.
As Archbishop of Brisbane I was confronted with a number of cases in which I was
required to exercise my judgment about how to respond to allegations of child sexual
5 abuse. In some of these cases, there were not only allegations but also admissions of child
sexual abuse.
I exercised my judgment in each of those cases in good faith, to the best of my ability, and
drawing upon both my religious beliefs and the best advice then available to me in the
circumstances of the day.
10 I fully accept that those who have the authority to exercise these judgments must be
accountable for their actions and that my decisions in these cases are now properly the
subject of scrutiny.
This scrutiny should be properly informed by an understanding of the facts. Inaccurate or
distorted reporting and analysis will simply inhibit the community and its organizations in
15 their endeavours to better deal with these tragic events. It is achieving success in those
endeavours that must be given the highest priority by all involved.
Accordingly, I welcome the announcement by Archbishop Aspinall that he will convene an
inquiry into matters of sexual abuse involving the Anglican Diocese of Brisbane. I will
cooperate with that inquiry fully and in any way that I can.
20 A deal of the media reporting, both print and television, that has occurred in the recent
period has been neither properly informed nor conducive to safeguarding the interests of
children and their freedom from risk of sexual abuse.
I have thus thought very long and hard about how to respond to the various assertions made
about my handling of allegations of sexual abuse.
25 I have examined my actions, my records, my conscience, my memory and my
responsibilities. I have also taken into account the difficult issues of confidentiality. On
balance, I have decided that I must issue this detailed statement. While I understand and
share the anguish of people involved directly or indirectly in child abuse situations, I feel
obliged to set the record straight as there have been serious distortions in the way the
30 issues have been projected in the media.
I do so knowing that this requires me to recall events and conversations some of which
occurred many years ago. I make this statement to the best of my memory and notes. I
stand ready to address any issues with the facts and the truth to the best of my ability.
Child sexual abuse cases are inherently difficult and complex. Each case is different.
35 Sexual abuse raises a number of often competing issues and principles such as the rights of
children, rights of parents, rights of the accused, confidentiality and availability of
evidence.
Of these issues, the rights of the child must always be paramount. And, amongst those
rights, the free ability to involve law enforcement agencies is fundamental. I have never
40 actively discouraged any individual from taking a matter of sexual abuse to the police. Nor
would I ever do so.
In reflecting on the Church's approach to child sex abuse during my earlier years as
Archbishop of Brisbane, I have come to the conclusion that we were operating within a
system that should now be recognized as ill-equipped to deal with the complexity of the
45 issues. I acknowledge that the Church had not kept pace with community expectations and
demands for greater transparency and accountability in dealing with these problems. I
acknowledge I was part of that system. I became conscious of these deficiencies and the
Diocesan Council and I instigated a number of processes for reform. On refection we could
have done more.
50 One of the fundamental problems is that the Christian notion of forgiveness has not been
reconciled clearly enough with more robust and transparent community processes for
remediation and the avoidance of future risk. This is a fundamental issue for all churches
and public institutions. I hope that an outcome of the focus on my handling of these cases
will be a quickening of the pace of reform in this area.
The structure of the Church and the governance procedures in place at the time meant there
were no clear guidelines for when church leaders should become involved and how. This
5 has led to a perception that complaints of sexual abuse were covered-up and that outcomes
favoured priests over victims. While I do not believe the objective evidence justifies such
conclusions, the fact that such perceptions arise is a reality to which I and the Church must
respond.
I have never sought to cover-up or resile from dealing with an allegation of child sexual
10 abuse, no matter how difficult. I have always attempted to exercise my judgment and
authority in a way that balances all competing interests.
The exercise of judgment is the central element in the cases that I will address below.
Choosing between black and white is easy and perhaps I should be envious of those who
perceive the world in that way. I do not. The church exists for the salvation of broken
15 people, people broken by what may have been done to them, people broken by the evil they
do to others. The human and interpersonal issues faced by any church leader, to my mind,
involve many shades of grey. Over the years I have made judgments drawing on my
professional training and experience. I accept that others in the same circumstances might
well make different judgments. In retrospect, if faced with the same circumstances today,
20 some of my judgments may have been different. I do not pretend that all my judgments
have been perfect. I regret those I may have got wrong.
Child abuse is one of the most difficult and serious of social problems confronting our
community. There is a report of a child abuse every five minutes in Australia. It is an issue
that I have tried to address to the best of my ability over 40 years in my various roles in the
25 community. I refuse to turn away because it is too difficult. I vow to continue to help the
community and to take a lead to deal with this most urgent problem.
In the passages that follow I set out my detailed response to various allegations repeatedly
made in the print and television media in recent weeks to which I am presently able to
respond. Should further media reports contain material that I consider warrant comment
30 from me, I will respond appropriately at the time.
Toowoomba Prep School

I detailed the limited nature of my involvement in this matter in my earlier statement in
December 2001. There are however three particular matters raised in the Sunday and
35 60 Minutes program to which I should provide an additional response.
Allegation: That for three years after the rape of Marj's daughter, Guy would rape or
sexually abuse up to 80 girls at this school.
 There is no evidence to support this allegation.
 Guy's suicide note named 20 girls from Toowoomba Prep and another school interstate.
40 The school and the Toowoomba Hospital Suspected Child Abuse Network (SCAN) team
followed up with each of their families. I have recently been informed by a senior
Toowoomba paediatrician, Dr Prebble, that no cases were reported to the SCAN team and
that there was accordingly nothing for them to investigate.
 The available evidence to date is that no more than 3 girls were sexually abused by Guy
45 at Toowoomba Prep.
 We previously knew of the two girls involved in the charges against Guy.
 More recently we have become aware of another girl who has only recently informed
her family that she was raped by Guy in 1988. This is the daughter of Marj who was
interviewed on the Sunday and 60 Minutes programs.
50  Another couple interviewed by Sunday/60 Minutes (Sue and John Neale) clearly
indicated that their daughter was not molested.

 Abused children are in no way assisted by gross exaggeration of this kind made by the
Sunday and 60 Minutes programs.
Allegation: “Only the parents of the 20 girls named in the suicide note were to be told the
5 truth.”
The School Council decided that only the parents of the girls named in the suicide note
should be specifically advised of Guy's conduct. I was not party to that decision. The
charges against Guy were, of course, a matter of public record and widely known within
the community.
10 I was informed on returning from leave on or about 4 February 1991 that the School
Council had met the Toowoomba Hospital's SCAN team and had formulated an action
plan. Under this plan the headmaster was to take certain action, including:
 writing urgently to the parents of each of the children mentioned in Guy's suicide note;
 providing assistance to the SCAN unit and the Health Department;
15  speaking to all the children at the school at the earliest opportunity after the holidays;
 informing the SCAN unit be of the school's response to the parents of the girls
mentioned in Guy's note; and
 advising the families of the two girls known to have been abused of the action to be
taken by the School Council.
20 The School Council also immediately reviewed its boarding house administrative
practices and agreed to consider paying counselling fees for the girls.
Allegation: That there was a cover-up of Guy's abuse.

I have set out above the decisions which the School Council took, with advice from the
25 Toowoomba Hospital, and the directions it gave to the headmaster, after it became aware of
Guy's abuse.
These decisions were not made or implemented immediately upon the revelation of Guy's
activities. This led to some concerns that there was a cover-up involved. However, the
delay in acting was partly because of the summer vacation and the absence of school
30 authorities and pupils, and partly due to the need to await the SCAN team's advice. While
action could have been taken more quickly, there was in fact no cover-up.
A Queensland Priest
Allegation: That I allowed a 62-year-old Queensland priest to continue his licence until
35 retirement at 65 years, with knowledge that he had committed an act of sexual abuse prior
to his becoming a priest.
 The Sunday and 60 Minutes programs referred to a priest and events involving an
unnamed boy that took place some 20 years ago. These events took place before the priest
was ordained.
40  The family of the boy informally approached the diocese in late 1993 reporting that
their two sons had been abused by the priest before he was ordained and expressing
concern about the priest continuing in his office.
 When I was informed of the sexual abuse, I immediately confronted the priest who
readily admitted the incidents. I insisted that he give me a full account of his previous
45 actions.
 After making inquiries I could find no evidence of his having offended since becoming
a priest.
 I required the priest to seek assistance from a psychiatrist with whom I could liaise.
The psychiatrist advised me verbally that paedophiles may re-offend. In light of this, I
50 wrote to the priest alerting him to the psychiatrist's advice about the dangers of re-offending

and urging him to take the utmost care. He promised to do so, and agreed to report to me
regularly.
 In light of these matters, I formed the view that he could continue as a priest but only on
a number of conditions designed to avoid the danger of any recurrence:
5  I required him to apologise to the victims and the family;
 I directed that he was to have nothing to do with children or youth organizations;
 I informed the regional bishop of the action that I had taken so that he could assist me
in maintaining close surveillance to monitor the priest's ongoing behaviour;
 I informed the other bishops within the diocese of my action, in the interests of
10 transparency and collegiality and to seek any suggestions for alternative courses which
were not forthcoming at the time (although some unease was expressed at a later time when
the priest held a Permission To Officiate which allowed him to conduct alternative services
in his retirement);
 I required him to disclose the matter to his wife and I personally spoke with the priest's
15 wife about the need for her to be alert to the priest's ongoing behaviour; and
 I maintained occasional contact with the victim and agreed to his request that the
church provide him with counselling (which he did not eventually take up).
 Upon his acceptance of these conditions, I concluded that the risk of any recurrence of
what I then believed was isolated activity some 20 years ago was not such that the priest
20 could not continue in office until retirement. Whether he would later receive permission to
undertake occasional locums on his retirement in two years time was contingent on his
conduct in the concluding years of his active ministry.
 Some eight years later, a separate matter became the subject of a police investigation.
The priest has now been charged and pleaded guilty on separate charges. These offences
25 also occurred before he became a priest. It was because of these charges that his licence
was recently revoked.
 I completely support that decision.
 I am deeply disturbed that, despite my specific questioning of him on this point, the
priest did not inform me about these other abuses and that evidence of them was not
30 otherwise available to me. Had this not been the case, my decision would most definitely
have been different.
Allegation: I am supposed to have told the father that it was better to upset one family
rather than an entire parish.
35  While I cannot recall the detail of our conversation, I cannot believe that I would
have said this. A sentiment of this nature is inconsistent with my principles and beliefs.
 I know that members of the family had difficulty accepting my decision not to revoke
the priest's licence. While I understand their feelings, I was required to form a judgment on
all the material then available to me. I made a pastoral judgment in good faith based on my
40 belief that the right protections were in place and that nobody would be at risk. I believed
at the time that the priest had not transgressed since his ordination. This remains the
case and there is no evidence that any child has suffered harm as a result of my
decision.
 I accept some will criticise the decision I made and, with the benefit of hindsight
45 and especially with the facts that have now emerged, I recognise that it would have
preferable if the priest's licence had been revoked.
“David”
Allegation: On the Sunday/60 Minutes programs, a silhouetted figure called “David”
50 claimed that I sought to dissuade him from taking allegations to the police.

When I saw the Sunday/60 Minutes programs I could neither recognise “David” nor recall
meeting him. This was still the case when I commented on “David” during the “Australian
Story” program on Monday night.
However, I now understand from checking my diary that “David” is a person with whom
5 I met at the end of August 1993.
I have no clear recollection of the details of our conversation. In particular, I do not
recall him raising the prospect of approaching the police. If he did so, however, I do not
believe I would have urged him not to go to the police.
As a trained social worker and priest, I would never seek to dissuade an individual
10 from going to the police or other authorities. In any such counselling, my practice was to
ensure that individuals were aware of all the options for seeking redress in respect of their
allegations of sexual abuse and of the potential ramifications of each for them and their
families.
In following this course I have never sought to improperly or inappropriately discourage
15 any victim from exercising their fundamental right to raise a matter of sexual abuse with
the police.
Now that I have clearly identified “David”, I recall that, in 2001, “David” had telephone
conversations with me in which he indicated a need for counselling. I offered to pay for
this. I arranged for one of the church agencies to help him. As it transpired, I believe he
20 did not take up this offer.
By way of clarification I mention that, during the “Australian Story” interview, I
incorrectly assumed that the priest to whom “David “ referred may have been associated
with the now closed St George's Home in Rockhampton. This was because of “David's”
reference to the priest having ceased to be a priest in the last 12 months. I now understand
25 this not to have been the case.
Mr Alec Spencer
Allegation: On the Sunday / 60 Minutes programs, Mr Spencer said he attended a meeting
at which he alleges that I said “…the people who make these allegations are often deviants
30 and misfits and can't be trusted.”
I do not believe that I would ever have made such a statement. I find the language
attributed to me abhorrent and against all my professional training and beliefs.
Allegation: Mr Spencer also complains that I did not want to deal with him in relation to
his claimed experiences at St George's Home, Rockhampton, claiming that I was about to
35 take long service leave.
My recollection is that Mr Spencer told me on two occasions that he wanted to discuss his
experiences with me, and that in each case this occurred after the only meetings of
Queensland heads of churches that he ever attended as a representative of the Assemblies
of God.
40 After the first meeting, I indicated my readiness to meet him even though Rockhampton
was in a different diocese. I asked my secretary to make an appointment for Mr Spencer to
see me should he make contact. He did not do so.
On the second occasion, I again indicated my willingness to meet him, while mentioning
that I was unable to do so in the immediate future as I was about to leave for the Lambeth
45 Conference of Anglican bishops held in Canterbury (not long service leave as Mr Spencer
claimed). Again he did not follow up and the next I heard of him were the allegations,
attributed to him two years ago in The Courier Mail and similar to those he made on the
Sunday / 60 Minutes program.
50 Ross McAuley

Allegation: The Weekend Australian and the Sunday/60 Minutes programs are critical of
the appointment of the Cathedral's Precentor, Ross McAuley, to the diocesan sexual abuse
committee when I knew an allegation of abuse had previously been made against him. I am
also criticised for not informing the committee of this allegation when appointing him to it.
5 McAuley and I worked together for nine years at the Brotherhood of St Laurence in
Melbourne. Throughout that period I had no reason whatsoever to suspect any impropriety
on his part and particularly in relation to sexual abuse of children. My assessment was that
he performed his duties with the Brotherhood with distinction.
In 1995, McAuley was appointed by the Cathedral Chapter as Precentor in Brisbane, a
10 job primarily concerned with the Cathedral's liturgy and for which he was well qualified.
Not long after his appointment to Brisbane, I received a short letter from Mr Stephen
Lacon making allegations about McAuley's sexual behaviour many years previously in Mr
Lacon's presence.
I informed the bishops of the diocese of the allegation raised in the letter. I did this at our
15 weekly meeting. We arranged for the complaint to be investigated by a small panel of
experts. The panel met the complainant and a representative of a sexual abuse advocacy
group.
A panel representative, independent of the diocese, investigated the matter as fully as he
could. He reported to the panel that he could not verify Mr Lacon's complaints. The
20 investigator advised that none of his allegations could be verified, that no witnesses could
be found and that Mr Lacon appeared confused as he was making contradictory statements.
It was noted at the meeting of bishops at which the matter was reported that Mr Lacon's
advocate did not press for further investigation.
I also had a long meeting with McAuley, putting the allegations to him along with the
25 material provided by Mr Lacon. He strongly denied the allegations.
Some months later we were establishing a committee to deal with clergy sexual abuse.
We needed a priest with social work training and the necessary perception and sensitivity to
work with and provide balance on the committee. McAuley was recommended to me by
the chair of the panel. I discussed both the recommendation and the prior allegation against
30 McAuley with the bishops at our weekly meeting. After reviewing all the circumstances,
we agreed that McAuley's name should be given to the committee to fill the final vacancy.
Because the panel and independent investigator had failed to find any grounds to support
Mr Lacon's complaint, I did not consider it appropriate for me to divulge the fully
investigated complaint to the committee.
35 Subsequently, a 24-year-old male member of the choir made a complaint about an
inappropriate sexual advance to him, as an adult, by McAuley.
This matter was investigated by the clergy sexual abuse committee without him taking
any part, other than his participation in formal mediation. The committee was unable to
resolve all the issues before it and eventually referred the matter to me with a written
40 recommendation that he be stood down as Precentor and accept counselling.
On investigation, and after interviewing both the complainant and McAuley in depth, I
concluded that the allegation of inappropriate sexual behaviour could not be corroborated
and that the matter essentially arose from an irreconcilable breakdown between them in
relation to a business venture being undertaken by them. Because of this I decided that
45 there was insufficient grounds to remove him from the position of Precentor.
However, McAuley took extended sick leave and took up certain of the recommendations
of the committee. Later it became clear that the Cathedral could not afford to keep the
separate full-time Precentor position and soon after McAuley moved to Tasmania.

Allegation: In the Sunday/60 Minutes programs, a member of the sexual abuse committee,
Mr David Axten, claimed that McAuley's employment at the Cathedral could have posed an
ongoing risk to the children of the choir.
I utterly reject that suggestion.
5 Given the unsubstantiated nature of Mr Lacon's complaint and my conclusion that the
subsequent complaint of a homosexual approach to an adult was simply a manifestation of
an inter-personal dispute related to a business venture, I consider that there were no
grounds to assume that there was a risk to children in the choir
At this point I need to correct a detail I provided in the “Australian Story” interview on
10 Monday night. I mistakenly said that Bishop Noble alone handled the Lacon complaint.
This is not correct and I apologise to him.
Bishop Donald Shearman

Allegation: That I did not revoke Bishop Shearman's right to officiate after I was informed
15 of his abuse of a girl in the 1950s.
The Sydney Morning Herald on Saturday 16 February carried a front-page story with the
banner headline “G-G spared sex abuse bishop”. Certain details were set out in a later
article in The Courier Mail in which former Bishop Don Shearman identifies himself as the
retired bishop in question. It is a very sad set of circumstances for all involved, spanning
20 some 50 years.
The facts as I understand them to be are as follows:
Retired Bishop Shearman had sex with a girl of about 15 years of age when he was a
young curate some 50 years ago. The girl was a resident in a church hostel he supervised.
That act on his part cannot be condoned, and I have never condoned it regardless of
25 whether or not the girl was a willing participant.
Shearman confessed his actions to his then Bishop and offered to resign, but this was not
accepted.
In the 1970s a relationship commenced between Shearman and the then adult woman
involved in the 1950's incident and this lasted for a short period.
30 In the mid 1980s, after Bishop Shearman had resigned, the woman complained to my
predecessor about Shearman's conduct;
The then Archbishop then sought to achieve a resolution of the woman's grievances, with
some apparent success.
In the mid 1990s the woman approached me, raising the same grievances against
35 Shearman. I referred the matter to the clergy sexual abuse committee which made a
number of recommendations, including formal mediation. I was an observer at that formal
mediation between her and Shearman and, at its conclusion, I believed that a resolution of
the grievances had been achieved.
It was in all these circumstances that I formed the view that there was no need to revoke
40 former Bishop Shearman's Permission To Officiate (P.T.O.). A P.T.O. allows a retired
priest to conduct occasional church services.
Subsequently it became apparent, early last year, that the resolution understood to have
been achieved at mediation had broken down and the woman again raised her concerns in
letters to other bishops. For this reason, Bishop Shearman and I agreed that he should
45 discontinue any public ministry in his retirement.
Adverse inferences have been drawn from the fact of Bishop Appleby's revocation of
retired Bishop Shearman's P.T.O. shortly after my departure from the diocese. The fact is
that the formal withdrawal of the P.T.O. by the Bishop Administrator followed the
agreement I made with former Bishop Shearman not to exercise ministry publicly.
50
Provision of Counselling
Allegation: The Sunday / 60 Minutes program reporter's claim that $35m has been spent on
refurbishing the Cathedral while only $500 had been spent on counselling for victims of
sexual abuse.
I reject this allegation. While there is an appeal for $25m for the completion of the
5 Cathedral (of which about half has been raised), the fact is that significant amounts have
been allocated to support counselling.
St Paul's School
Allegation: The Daily Telegraph of today alleges that I “endorsed a secret cash settlement
10 which hushed up direct evidence of sexual abuse perpetrated against boys at a Anglican
Church School in Brisbane”.
Legal proceedings were instituted against St Paul's School arising out of alleged sexual
abuse by Kevin John Lynch, the Counsellor of that school.
Those proceedings were settled on terms mutually agreeable not only to the Church but to
15 the plaintiff and his family. In the usual way, the settlement included a confidentiality
clause. I understand that the fundamental purpose of this clause would have been to protect
the privacy of the boys involved. It is certainly the case that I never insisted that such a
clause be inserted.
While I was informed of the settlement, I was not asked to approve of it. The decision in
20 this regard was taken by the Church's insurers in consultation with the diocesan General
Manager, who in turn was advised by the diocese's independent solicitors.
It would have been totally inappropriate and unacceptable to have forced the plaintiff to
suffer the further anguish of litigation simply to avoid the baseless allegation now made
that “hush money” was paid.
25 END QUOTE
.
QUOTE
Muslims who want to live under Islamic Sharia law
The Whole world Needs A Leader Like

30 This!
Prime Minister Kevin Rudd - Australia
Muslims who want to live under Islamic Sharia law

were told on Wednesday to get out of Australia , as the
35 government targeted radicals in a bid to head off
potential terror attacks..
Separately, Rudd angered some Australian Muslims on
Wednesday by saying he supported spy agencies
monitoring the nation's mosques. Quote:
'IMMIGRANTS, NOT AUSTRALIANS, MUST ADAPT.
Take It Or Leave It. I am tired of this nation worrying
about whether we are offending some individual or their
culture. Since the terrorist attacks on Bali , we have
5 experienced a surge in patriotism by the majority of
Australians. '
'This culture has been developed over two centuries of

struggles, trials and victories by millions of men and
10 women who have sought freedom'
'We speak mainly ENGLISH, not Spanish, Lebanese,

Arabic, Chinese, Japanese, Russian, or any other
language. Therefore, if you wish to become part of our
15 society . Learn the language!'
'Most Australians believe in God. This is not some

Christian, right wing, political push, but a fact, because
Christian men and women, on Christian principles,
20 founded this nation, and this is clearly documented. It is
certainly appropriate to display it on the walls of our
schools. If God offends you, then I suggest you consider
another part of the world as your new home, because
God is part of our culture.'
25
'We will accept your beliefs, and will not question why.
All we ask is that you accept ours, and live in harmony
and peaceful enjoyment with us.'
30 'This is OUR COUNTRY, OUR LAND, and OUR

LIFESTYLE, and we will allow you every opportunity to
enjoy all this. But once you are done complaining,
whining, and griping about Our Flag, Our Pledge, Our
Christian beliefs, or Our Way of Life, I highly encourage
you take advantage of one other great Australian
freedom, 'THE RIGHT TO LEAVE'..'
'If you aren't happy here then LEAVE. We didn't force

5 you to come here. You asked to be here. So accept the
country YOU accepted.'
Maybe if we circulate this amongst ourselves, WE will

find the courage to start speaking and voicing the same
10 truths.
If you agree please SEND THIS ON and ON to as many

people as you know
END QUOTE
15 .
QUOTE
Muslim Sharia law... very scary
Saturday, 30 January, 2010 3:38 PM
From:
20 To:
She is a real person folks so......................For USA read UK as well.
Be sure to Google Nonie Darwish.....some very interesting reading. She is former Muslim
who converted to Christianity...these revelations are from one who knows....
READ AND WEEP FOR THE WORLD!

25
Nonie Darwish is real and widely published. This is sobering and disturbing material.
Hard to figure how to deal with it. Reminds me of the disastrous takeover of Afghanistan
by Taliban with newly imposed sharia law.
Joys of Muslim Women

30 by Nonie Darwish
In the Muslim faith a Muslim man can marry a child as young as 1 year old and have
sexual intimacy with this child. Consummating the marriage by 9. The dowry is given
to the family in exchange for the woman (who becomes his slave) and for the purchase of
the private parts of the woman, to use her as a toy.
35 Even though a woman is abused she can not obtain a divorce. To prove rape, the woman
must have (4) male witnesses. Often after a woman has been raped, she is returned to her
family and the family must return the dowry. The family has the right to execute her (an
honor killing) to restore the honor of the family.

Husbands can beat their wives 'at will' and he does not have to say why he has beaten her.
The husband is permitted to have (4 wives) and a temporary wife for an hour (prostitute) at
his discretion..
5 The Shariah Muslim law controls the private as well as the public life of the woman.
In the West World ( America & UK ) Muslim men are starting to demand Shariah Law so
the wife can not obtain a divorce and he can have full and complete control of her. It is
amazing and alarming how many of our sisters and daughters attending American
10 Universities are now marrying Muslim men and submitting themselves and their children
unsuspectingly to the Shariah law.
By passing this on, enlightened American & UK women may avoid becoming a slave under
Shariah Law. Ripping the West in Two.
15
Author and lecturer Nonie Darwish says the goal of radical Islamists is to impose Shariah
law on the world, ripping Western law and liberty in two. She recently authored the book,
Cruel and Usual Punishment: The Terrifying Global Implications of Islamic Law..
20 Darwish was born in Cairo and spent her childhood in Egypt and Gaza before immigrating
to America in 1978, when she was eight years old. Her father died while leading covert
attacks on Israel . He was a high-ranking Egyptian military officer stationed with his
family in Gaza ...
25 When he died, he was considered a "shahid," a martyr for jihad. His posthumous status
earned Nonie and her family an elevated position in Muslim society. But Darwish
developed a skeptical eye at an early age. She questioned her own Muslim culture and
upbringing. She converted to Christianity after hearing a Christian preacher on television.
30 In her latest book, Darwish warns about creeping sharia law - what it is, what it means, and
how it is manifested in Islamic countries.
For the West, she says radical Islamists are working to impose sharia on the world. If that
happens, Western civilization will be destroyed. Westerners generally assume all religions
35 encourage a respect for the dignity of each individual. Islamic law (Sharia) teaches that
non-Muslims should be subjugated or killed in this world.
Peace and prosperity for one's children is not as important as assuring that Islamic law rules
everywhere in the Middle East and eventually in the world. While Westerners tend to think
40 that all religions encourage some form of the golden rule, Sharia teaches two systems of
ethics - one for Muslims and another for non-Muslims. Building on tribal practices of the
seventh century, Sharia encourages the side of humanity that wants to take from and
subjugate others.
45 While Westerners tend to think in terms of religious people developing a personal

understanding of and relationship with God, Sharia advocates executing people who ask
difficult questions that could be interpreted as criticism.
It's hard to imagine, that in this day and age, Islamic scholars agree that those who criticize
50 Islam or choose to stop being Muslim should be executed. Sadly, while talk of an Islamic
reformation is common and even assumed by many in the West, such murmurings in the
Middle East are silenced through intimidation.
While Westerners are accustomed to an increase in religious tolerance over time, Darwish
explains how petro dollars are being used to grow an extremely intolerant form of political
Islam in her native Egypt and elsewhere.
5
In twenty years there will be enough Muslim voters in the U.S. to elect the President by
themselves! Rest assured they will do so... You can look at how they have taken over
several towns in the USA .. Dearborn Mich. is one... and there are others...
10 I think everyone in the U.S. should be required to read this, but with the ACLU, there is no
way this will be widely publicized, unless each of us sends it on!
It is too bad that so many are disillusioned with life and Christianity to accept Muslims as
peaceful.. some may be but they have an army that is willing to shed blood in the name of
15 Islam.. the peaceful support the warriors with their finances and own kind of patriotism to
their religion..
While America/UK is getting rid of Christianity from all public sites and erasing God from
the lives of children the Muslims are planning a great jihad on America ..
20
This is your chance to make a difference...! Pass it on to your email list or at least those you
think will listen.
END QUOTE
.
25 Again the Framers of the Constitution made clear that any religious practices would have to be
within the confinement of Australia law (State/Territorian & Federal) and it is a misconception
that any religious entity can somehow create a compound closed off with high fences, security
guards and provisions of holding rooms/cells to punish any person as this cannot be permitted to
be falling within the system of a NON PROFIT (NOT-FOR-PROFIT) registered entity for
30 “PUBLIC PURPOSES”.
.
http://au.news.yahoo.com/a/-/mp/6221911/addict-has-15-abortions-in-17-years/
QUOTE
"Addict" has 15 abortions in 17 years

35
Yahoo!7 October 15, 2009, 1:17 pm
A mother who says she was an "abortion addict" has admitted having 15
terminations in 17 years.
40 Irene Vilar said that from the age of 16 to 33 she could not prevent herself
from getting pregnant - and then getting a termination.
"Of course, this did not mean I wanted to do it again and again," said the
now 40-year-old mother of two.
"A druggie also wants to stop every time."
45 For much of that period she was in a difficult marriage with an older man
who did not want children with her, she said.

She would "forget" to take her birth control pills, get pregnant, panic that she
would lose her husband and arrange an abortion.
Her past is explored in her memoir Impossible Motherhood: Testimony of an
Abortion Addict, which has provoked an outcry from many anti-abortion
5 campaigners.
"The majority of pro-choicers - and I don't blame them - are somewhat
confused," Ms Vilar told the LA Times.
"My story is a perversion of both maternal desire and abortion, framed by a
lawful procedure that I abused," she writes in her book
10 "A moment came when not being pregnant was enough motivation for
wanting to be pregnant. Getting pregnant began to be simply a habit."
But she believes the availability of abortion saved her life as she would have
found a way to end her pregnancies, legal or not.
She is now raising two daughters, aged three and five years old, and two
15 teenage stepchildren with her second husband, whom she met in 2003.
To verify her story, Ms Vilar produced medical records and her book was
fact-checked and vetted by lawyers, according to her publishers.
END QUOTE
.
20 I DO NOT PROMOTE ANY RELIGIOUS VIES BUT I TAKE THE POSITION THAT
NEITHER MYSELF OR ANYONE WHO READS THIS DOCUMENT WOULD HAVE
EXISTED WERE IT NOT BECAUSE OUR MOTHERS DIDN’T ABORT US.
We were given the right to live and we should not deny others to do so.
Taxpayers should be caused to pay under the health scheme something that is not really at all a
25 health issue.
For sure, if there is an incident that a female is the result of an unwanted pregnancy due to rape
and medically it is deemed to be appropriate to have an abortion taking place then this might be
justified, but I cannot accept that having 15 abortions in 17 years can be classified as for health
reasons and as such is a gross abuse and misuse of taxpayers moneys. This is not an issue about
30 an unwanted child but about generally a preventative pregnancy but women refuse to avoid the
risk of pregnancy and then misuse and abuse the health system as to incur the cost of
pregnancies. It means that the so to say health dollar needed badly to be spent for those really in
ill health are used instead for a commodity such as abortions.
Instead of having a health system that funds infertile women who have difficulties to become
35 pregnant and paying on the other hand for abortions we would do better to encourage women
who have fallen pregnant but do not desire to have a child to nevertheless carry the child and
pass it on to those who badly desire a child but are unable to conceive a child.
Not a surrogate system as such but a system controlled by the Commonwealth where the
woman is provided with free medical care cost, incurred in relation to the pregnancy, upon
40 her handing over the baby to another couple.
.
While I am well aware that weomen claim it is their body and they can do with it what they like,
and indeed they are right in this for sofar they are refering to their own body but when a child is
conceived it is not their body but the body of a child (in whatever state it is in) and they have no
45 right to abort this child merely upon their owen say so as they had every right, so to say, to keep
their legs close to avoid any pregnancy in the first place.
If a man can be held legally responsible for donating his sperm into a woman and a preganacy
results then likewise the participating women must equally be held legally responsible and the
child conceived is a child of both, not just one of them, and must be considered to have a right to
live regardless if either or both parent were to desire otherwise.
.
We cannot have that if a person inflicts harm upon a pregnant women and as result the foetus
5 dies the person then can be legally liable where as if the women herself caused the foetus to die
then somehow it is “her right to make a decision about her body” where in real she isn’t at all
making any decision about her body as she gave up that right when she participated in sexual
intercourse., and as such she really claims to have the right to terminate the rights of the foetus.
Fancy a woman being infertile to use infertility at huge cost to the taxpayers and then when
10 pregnant end’s up to split with the biological father and then she makes clear “it is my right to do
with my body as I like” and then have an abortion. Surely no FAIR MINDED PERSON can
accept this gross misuse and abuse of taxpayers dollars?
If she got herself pregnant then by this she did forgo any rights relating to the foetus she carries,
simple as that.
15 Again, the exception is where doctors hold that upon special medical reasons it might be
appropriate for an abortion to take place. For example is a 9 year old girl is raped and by it
became pregnant then doctors might view that the child may be right is she want’s to have an
abortion. Still, the child should have a say in it and if she wants nevertheless keep the child then
so be it.
20 Likewise where there is a case of life and death, say after a car accident, and doctors are placed
in a situation where they may have to consider to terminate the foetus to save the life of the
mother then again this is a medical issue.
However, I do not accept that abortions done because of a woman not wanting to be pregnant is a
medical issue as where a woman knowingly and willingly engage in sexual activities that can
25 produce a pregnancy then she must be equally held accountable for this as a man would be. If a
woman claims to have the right to abort the child then one has to consider the alternative that
then a man not wanting the women to have become pregnant also could insist the woman then
has an abortion as he doesn’t want the child! Women then will cry out that this cannot be
permitted because the unborn-child in their body. As such woman want it each way to have the
30 sole determination if the child shall live or die but the biological father has no say in it
whatsoever and is left in question to face possible 18 years of child support payment merely as to
if the woman might or might not keep the unborn baby.
In my view abortions should not be classified as a health issue unless certified by doctors that it
is in fact a health issue and again it should be the exception rather then the rule.
35 .
I was assisting once a well known case where the former husband discovered that 2 out of three
children of the marriage were actually not his biological children. Later the Court held that the
former wife suffered a medical condition that she needed sexual intercourse with another man.
So much for a marriage being between one woman and one man! Anyhow, it seems darn silly to
40 me that a woman having extramarital sexual intercourse over a number of years with another
man somehow can claim this is due to a medical illness. Ample of women have extra marital
sexual intercourse as ample of married men do and surely they do not all claim it is due to some
illness. What the court did disregard is that even if she suffered from this illness it nevertheless
didn’t excuse her conduct to pervert the course of justice time and time again to collect for years
45 after the marriage break-up to claim child support from the former husband even so she was then
all along knew that the man she since was living with was the biological father of two of her
children. Somehow her illness needing another man for sexual intercourse seemed to have
evaporated.
In my view, when a woman demands child support then she is publicly claiming that the child is
50 that of the person she is claiming child support from and she would then be barred in law to ever
contest the paternity. What we have however is that women claim child support and then when
the child turns 18 then announce that after all the man who all along was paying child support
isn’t the biological father. This cruel twist is showing how malicious such women are not just
against the men concerned but also tho their own children to have deceived them also all along to
deny them the knowledge of their true biological parent.
In Family Law however you can have a woman claiming child support of two or more men and
5 actually be able to achieve this even neither may actually be the biological father! This is how
rotten the system is. In my view this whole Child Support as a “Debt to the commonwealth” is
unconstitutional as it purports a private debt to the custodian parent:” to become a “Debt to the
commonwealth” but yet the commonwealth then conduct matters totally different then it being a
“Debt to the commonwealth”
10 .
For example when I was a single parent of one of my daughters since she was one year old the
child Support Agency refused to collect a single cent from the non-custodian mother and didn’t
do so until the child was about 21 years old, where it then pursued me to “cancel” the Child
Support Debt” which I refused. If the child support Debt was a “Debt to the Commonwealth”
15 then legally I have no place to play as to authorise a cancellation of the non-payment of some 17
years of child-support. They talk about so called dead-beat fathers but the dead-beat mothers are
often worse.
The Family court however on basis of the child support (I wasn’t getting) nevertheless calculated
that therefore I could afford making 1,000 kilometre round trips to allow for access. As such, the
20 Family Court of Australia wasn’t dealing at all with reality!. More over, the Child support
Agency made clear that unless they receive a payment from the non-custodian parent they would
not make any payment to me. As such it had nothing to do with a “Debt to the Commonwealth”
merely that the Commonwealth was so to say administrating the transfer of monies received. At
one stage the mother was able to get Legal Aid lawyers to argue that she couldn’t afford paying
25 child support (by then the child was already 14) because she had one of her adult children living
with her free of cost. Moment, try a man to get out on such an argument and the court will say
that has nothing to do with the child you created, you simply have to pay and your further
problems are for you to sort out.
.
30 The Court at the time nevertheless reduced child support payment to be $20.00 a week, but true
to the mothers nature she maintained not to pay any. Here we had taxpayers paying for her legal
Aid lawyers for what?
The Framers of the Constitution made clear that all revenue from whatever source should be one
Consolidated Revenue funds, albeit the issue was also that loans (for the Commonwealth and/or
35 States) should be in a different fund as to avoid it all to be put together.
What we have however is that the “Debt to the Commonwealth” is not at all put in Consolidated
Revenue funds but somehow is used in another manner. Even where the Child Support Agency
has monies that, being due to lost cheques in the mail or otherwise, never were claimed then
remain payable but the Child Support Agency makes little to no attempt to ensure that the monies
40 are paid out as soon as possible. Indeed it also has a system that a cheque received say on the
first of the months is not issued to the custodian parent until the 15 th, as such the Child Support
Agency by delaying millions of dollars in payments is making a handsome profit in interest! Yet
a non-custodian parent who were to pay child support a single day late can be held accountable
for ignoring the child’s interest and wellbeing, where the Child Support Agency delays payments
45 for a massive 14 days or longer.
.
In my view no child should be valued upon the pay capacity of the non-custodian parent
but all children should be equal under the law. Hence, this entire child support system
should be abolished and replaced with a special tax levy that applies to people say from the
50 age of 18 till the age of 40 and this special tax then is to provide every child to the same
level of child support and not that children of non-paying parents are getting not a single
cent while others are getting many thousands of dollars per mount.
.
By abolishing the entire child support system we will also remove a lot of friction between
parents.
.
5 Where I was a single parent with up to 5 children in my care I never received child support
through the child support agency and yet still managed to come through.
.
In my view the Child Support Agency is unconstitutionally using the taxation office to calculate
Child Support payments and otherwise withhold payments even so constitutionally the
10 Commonwealth is prohibited from doing so as it must obtain a court order before it can garnish a
payment and only if it is a State court order!
.
Also, if the custodian parent is standing in a civil position not having any powers himself/herself
to access taxation records then it cannot be that the agent “the Commonwealth” can exercise a
15 greater power then the grantor. Hence if the father/mother cannot access taxation records then
likewise the agent, the Commonwealth, should not be permitted to do so either, regardless that
ordinary the Commonwealth has all legislative powers over taxation. The Abbott case
(199401995) underlined how absurd it was where even the High Court of Australia enforced the
$4,000.00 Child Support Agency claim only then the Child support Agency to refund the monies
20 as after all they concluded Mr Abbott had no “Debt to the Commonwealth” at all. Now how darn
silly for the highest court of the land to make a judicial decision upon FICTITIOUS claims.
While obviously this kind of litigation is keeping a lot of employers from being unemployed
but really that should not be the concern to taxpayers. Let the commonwealth implement a
taxation system that is fair and proper to them also.
25 .
We cannot have a system where basically a woman becomes pregnant and then so to say sort out
which man she thinks is likely to pay most of child support payments and then allocate him to be
the biological parent. After all why make known the unemployed bloke next door is the
biological father when you can rip off some rich dude who has plenty of money to spare (so they
30 argue) and who would be happy to accept a child as his own – well until she becomes nasty after
a few years and make clear he isn’t the biological father and stop any contact with the child.
.
The issue of a CHILD SUPPORT LEVY
.
35 If the entire Child Support System is abolished then the monies saved to keep propping up
this system would go a long way to ward other more important matters. And if a CHILD
SUPPORT LEVY were to be enacted to all 18 to 40 years old, regardless if they have any
child(ren) then this would be fairer to all children. Those who for medical reasons cannot
be in the run to become a parent, being it severely disabled person, etc, could always apply
40 on medical grounds for being exempted of such a levy.
.
As an Attorney (not lawyer) I have assisted many in Family Law issues over the decades and in
fact in 1985 created the document ADDRESS TO THE COURT/TRIBUNAL as to make
litigation a more level playing field. This document has since been used in civil and criminal
45 cases in all levels of courts including the High Court of Australia. It enables a party to provide a
type written set out of the legal issues being argued, including references to Authorities, etc. As
His Honour Lyndemayer J, way back in 1994, made clear during an successful appeal hearing he
would like lawyers to follow this example as it would allow judges to retire to their chambers
and avoid misunderstandings and misconceptions. What this document aids with also is that
50 instead of having an unrepresented litigant, often highly emotionally charged and in at times
using the English language as a second language then can at their leisure have others assisting to
prepare the legal set out and provide it to the court and other party before the trial.
.
Alice Carter whom also acted as legal adviser for the Northern Territory in her report about a
visit to the Family Court at Melbourne remarked;
.
5 QUOTE
unfortunately, much of the proceedings I witnessed were repetitive, and general
disorganisation,....
END QUOTE
.
10 Page 22 27-8-1997
QUOTE
Further more the court was disorganised as many files were missing and cases were
adjourned early as many counsel failed to turn up.
END QUOTE
15 .
QUOTE
The counsels and their clients also presented themselves well dressed and I could see that
anyone who was not dressed suitably would be extremely obvious. I felt that the emphasis
on looking acceptable could easily disadvantage some people. The whole attitude of the
20 court to parties was rather more authoritarian then supportive,.....
END QUOTE
.
QUOTE
Moreover, I felt that the judges were inclined to be slightly patronising and pedantic.
25 .
QUOTE
... and the judge's demands that she speak louder reinforced my observations on the
authoritarian, patronising attitudes of the judges.
END QUOTE
30 .
QUOTE
I am now able to understand the general public's fear of going to court and facing judges; I,
too, was overawed by the excessive formality and surprised by the appearance, at least of
the judges' authoritarian and patronising attitude towards others in the court room.
35 END QUOTE
.
It ought to be noted that Alice Carter is a lawyer!
.
Again, taxpayers monies are wasted because of the way the Family Court of Australia operates
40 but it would be too extensive to canvas this in this document. Save to say however that time and
again I have people contacting me about the fees and charges also because of the huge cost
involved (for them) to seek an application to be filed, etc.
A bad example is that while the Framers of the Constitution specifically provided for
matrimonial matters to be for Commonwealth legislative powers so that there is a legislation
45 provision covering the whole of the Commonwealth of Australia, it is found that when in 1994 in
the Abbott case the wife filed the application for dissolution of marriage in one registry and the
husband filed his response in another registry opposing the dissolution of marriage the court held
that because it wasn’t filed in the same registry albeit still being the Family Court of Australia
registry then the husbands application, etc, was not filed in the right court, and so disregarded.
50 Again, it would be too comprehensive to outline all issues but I view much of taxpayers monies
are wasted on litigation that unrepresented litigants are blamed for but actually are the product of
conduct of lawyers involved who pursue adjournments often of fabricated excuses. As such they
are causing cost to taxpayers by having the court to hear the matter again later where this can be
avoided. As to just to give an example.
In a file I obtained the hand written notes of the instructing solicitor to the counsel appearing in
court was to seek an adjournment on the basis of the sexual abuse allegations made against the
5 father but a note of warning not to overplay this issue because investigation had been conducting
clearing the father of any wrongdoing.
As such, lawyers are misusing their position in that regard to obtain inappropriately an
adjournment. By this often casing a poor unrepresented person to incur cost to attend such kind
of hearings.
10 Justice should not be provided to those who can afford it but should be available to all and the
fees charged are an absurdity.
Likewise where His Honour Joske J in the Zabena case misconceived the provisions of the
Family Law Act and then held that a party had to pay for transcript, which up to then were
provided free of charge, this resulted that many to poor to pay the huge cost of transcripts then
15 could not continue with their appeal. As such the incorrect interpretation resulted to
unrepresented litigants having to abandoned an appeal or not at all institute any because of the
lack of monies.
Again, the system needs to be overhauled so as to ensure that those before the courts can obtain
JUSTICE. Also, that it is a system that not unduly caused cost to the taxpayers.
20 .
I am often so to say bombarded by callers who seek assistance (FREE OF CHARGE) because of
problems with Legal Aid or others. In one case the man was facing his 6th CONTEMPT hearing
and by then 20 lawyers already had been involved. So on request, as a
CONSTITUTIONALIST I commenced to assist the man and advised the judge that she actually
25 had no jurisdiction, etc. As I had pointed out to her honour there was not a shred of evidence
before her that this man ever had acted unlawfully! While opponent lawyers argued differently
nevertheless Her Honour ordered a PERMANENT STAY of the contempt proceedings, and
after ward I discovered from the transcript of the 6 hearings that Her Honour actually never even
had formally charged this man with any offences, yet Legal aid in their correspondence to this
30 man advised he better purge his contempt! Having held 15 hearing in total where this
unrepresented person actually had done no legal wrongdoing then one may ask how much cost
was there to the taxpayers to conduct those VEXATIOUS hearings?
.
Obviously we also have cases where so to say everyone is jumping on the bandwagon to claim
35 being sexual abused even so afterwards it is found that the sexual abuse claimed never could
have taken place as such. As a police sergeant of Lalor once made known that 9 out of 10 rape
allegations were afterwards found to have been consensual sexual intercourse but where a
woman afterwards fearing she might have fallen pregnant of the sexual encounter then fabricated
the rape story as not to get into troubles with the husband.
40 .
In my view, it would be worth while for the Commonwealth of Australia as well as the
states/Territories to invest taxpayers monies into video systems where when a person is allegedly
sexual abused the story of the alleged victim is video recorded. This also because police officers
at times write up what they deem is more likely to ensure a conviction rather then to write down
45 the precise wording. Having at times been a police witness myself in mainly motor vehicle
incidents I had time and time again to request the officer concerned to change the statement to
what I had stated as I wouldn’t accept the version they had made out of it. As a police officer
tried to convince it was better that way because it would rather assist in scoring a conviction I
nevertheless insisted it was corrected to the version I had stated.
50 When the Commonwealth of Australia invest many millions of dollars into Family Law cases
relating to sexual abuse, etc, I view it would be a lot cheaper to ensure video recording as to

possibly reduce the cost of protracted litigation where a alleged victim can be found to have
fabricated the version.
I recall a case where a woman requested my assistance against the father, alleging he had sexual
abused one of the two daughters. He had all along legal representation but while the sexual abuse
5 allegations were not held to be proven nevertheless the mother gained custody. Not long
thereafter the mother gave me the understanding that she had problems with Centrelink and so
she better get rid of the girl to the father, and she made known she had concocted the whole
sexual abuse allegations and actually coached her daughter what to say, etc. In this case I
contacted the father and arranged for him to collect the girls and that all relevant documentations
10 were signed but still this man had to go through huge cost to come each time from interstate to
attend to court hearings and all this what turned out to be concocted sexual abuse allegations.
Regretfully because of so many false accusations being made then where really sexual abuse is
perpetrated the real victims often then have so to say a hard time to be understood to be real
victims and not fabricating a story.
15 Hence, I view that a better funding system should exist to seek to sieve out the concocted stories
of sexual abuse, etc.
.
QUOTE Australian False Memory Association (Inc.)
ACCUSATIONS OF CHILDHOOD SEXUAL ABUSE BASED ON RECOVERED
20 MEMORIES: A FAMILY SURVEY
Merle Elson
Psychologist, Melbourne
ACCUSATIONS OF CHILDHOOD SEXUAL ABUSE BASED ON RECOVERED
MEMORIES: A FAMILY SURVEY
25
Merle Elson
Psychologist, Melbourne
"Our daughter disappeared from our lives four years ago, leaving a short note stating
30 memories of abuse (with no details)... We don’t know where our daughter and
grandchildren are as there has been no communication at all ." (accused parents)
"I was amazed to find it is possible to be arrested just on the basis of someone making
unbelievable allegations and to be treated like a criminal. The police behaved as though I
was guilty, even though they ended up not believing the accusations themselves."
35 (accused mother)
"I would like to know what it was that I did." (accused father)
The following data was obtained from a postal Family Survey undertaken during late 1996
to early 1997 amongst the members of the Australian False Memory Association (AFMA).
40 An eight page questionnaire containing 87 questions was developed from similar
questionnaires used by the False Memory Syndrome Foundation (FMSF) in the United
States and the British False Memory Society (BFMS) in the United Kingdom. It was
considerably abbreviated and modified for Australian use. The questionnaire was
distributed by mail to 110 parents who stated that they had been falsely accused of
45 childhood sexual abuse, usually by a daughter, based on her "recovered memories".
Typically these memories were recovered after the daughter had attended psychotherapy
for some unrelated problem, apparently following many years or decades of amnesia, and
with no previous awareness of being sexually abused by her parents.

The above quotations are from returned questionnaires and illustrate some of the reasons
this survey was undertaken. From her personal experience as the partner of a falsely
accused father, the writer has had contact with hundreds of other accused parents during the
past three years. Professionally[2], the first client she assisted who was affected by this
5 phenomenon was a 45 year-old feminist, accused by her son, arrested and interrogated by
the police, and suffering from "stunned shock and disbelief". The experiences detailed in
this survey are being repeated an unknown
number (certainly hundreds) of times around Australia[3]. There was a vital need to know
more accurately just what was happening and it was imperative to present these facts to
10 those who may be in a position to alleviate some of the destruction being caused by the
recovery of dubious memories.
For many years prior to the dramatic entrance of the recovered memory phenomenon into
her personal life, the writer had worked with sexual assault survivors: women and men who
had suffered abuse as children or adults. Most were unable to even temporarily forget their
15 abusive experiences and none ever displayed massive repression, that is, total amnesia for
their trauma. Many complained that, regardless of how hard they tried, they were
frequently haunted by thoughts of the abusive incidents.
Sexual abuse of children not only certainly occurs, it is widespread. More widespread than
many people feel comfortable to believe. Ironically, this survey has actually proved once
20 again the prevalence of childhood sexual abuse, but not abuse that was forgotten and then
recovered as memories with the help of a therapist or self-help book. It is hoped that this
study will help to clarify the difference between the two forms of abuse in order that both
will eventually be stopped. Abuse is caused to both the client, and to his or her family by
unproven, harmful forms of therapy that almost always lead to psychological and physical
25 deterioration[4] for all persons involved.
Now that more recovered memory cases are being disproved in courts and most of the
psychiatric and psychological professional associations are issuing warnings against
memory recovery techniques, the number of false accusations is starting to decline. Even
therapists who were involved in these dubious practices are finally beginning to realise the
30 unreliability of pseudomemories, with some even apologising to families for the harm they
have caused. Hopefully, as the focus of attention turns away from bizarre recovered
memory claims, more public resources will become available to supplement the fight
against all the real, rather than imaginary, pedophiles.
Introduction
35 Completed questionnaires were received from 83 families prior to the closing date,
indicating a high response rate of over 75 per cent, which compares favourably with other
similar surveys overseas. In addition to their completed questionnaires, many respondents
also sent additional material including court transcripts, reports and assessments, written
statements of accusations, and many offered to provide any further information that may be
40 required.
The survey provided a wealth of data and interesting results. Some of the findings were as
expected, and served to confirm results from similar overseas surveys and anecdotal
observations. Other findings though, were more unusual; some were discovered in response
to additional questions based on the writer’s intuition, whereas others were completely
45 unanticipated.

The most unexpected and surprising finding was the prevalence of actual sexual abuse that
had been experienced by the accusers earlier in their lives, including a large percentage
during their childhood. This discovery will hopefully lead to further investigation to help
explain its significance. Until then, further interpretation would be purely speculative.
5 Another aspect of this survey which also requires more research is the apparent correlation
between the recovery of allegedly false memories of childhood abuse and an actively
religious upbringing. This was demonstrated in several of the survey’s results, including the
extremely high percentage of accused fathers who were clergy, the disproportionate
representation of ‘fundamentalist’ denominations among accused families, and the high
10 number of accusers who (as adults) were conducting religious activities. All of these factors
would not be so remarkable in the USA, which has a high level of fundamentalist religious
involvement. However, as present-day Australia is a more secular, non-church-going
country, the above findings are noteworthy.
For some time it has been accepted, and backed up by other survey results, that various
15 stressors in the accusers’ current stage of life appear to play a precipitating role in the
recovery of false memories. What this present survey has shown is that the most prevalent
stress factor affecting the accuser was "moving house". This was not only rated the most
frequently occurring stressful event just prior to the accusations being made; it was also the
highest rated event classified as family stress, during the accuser’s childhood.
20 There was confirmation in the survey results, of the observation of accused families and the
false memory associations, that there appears to be a large percentage of accusers who
work in the field of counselling and sexual abuse. There could be various interpretations
made of this finding, however they would be inconclusive without more detailed
investigation. Another observation confirmed was that of the above average intelligence of
25 the accusers - indicated not only by parental assessment, but also by school completion
rates and university attendance.
Another relevant variable that appeared in this survey was the absence of a satisfactory
personal relationship in the accusing person’s life. Very few of the accusers were in what
the respondents classified as a happy marriage or partnership. Even amongst those who
30 were married or in a relationship at the time they made their allegations, many had broken
up two to three years later (at the time of the survey). Therefore, in addition to any other
triggering events, being without a supportive partner appears to also be a risk factor for an
accuser. Being a psychologist, I could not help speculating whether there may be something
in the ancient Greek concept of ‘hysteria’ - the notion of an unsatisfactory sexual
35 relationship being the cause of hysterical female behaviour. There is even one case of an
hysterical conversion disorder included in these survey results.
The results are presented in a similar order to the questions and sections as they appeared
in the survey. Accordingly, some related information may appear under separate headings,
for example, details about the accusing person (such as average age), may appear under
40 "Family details" and then again later under "Events connected with the accusation". This
method of presenting results following the format of the questionnaire appeared preferable
as it will assist individual participants in comparing their own personal responses with that
of the combined totals of the survey on any particular question.
As 98% of the accusing persons in this survey were female, the whole report is written in
45 the feminine gender to avoid the unwieldiness of using his/her, she/he, etc. Generally
comments will also apply to the two male accusers.

Section 1: FAMILY DETAILS
1.1 The fathers
A high proportion of the fathers of the accusing persons were born overseas (33.75%) with
5 30% of all the fathers in the survey being born in Great Britain. According to the 1997 Year
Book Australia (Australian Bureau of Statistics) 19% of Australians "had at least one
overseas born parent" (p.94). It is estimated that most of the fathers were Caucasian. The
average age of the fathers in 1997 was 63 years with 70% of the fathers aged between 55
and 75 years.
10 Based on the occupations of the fathers, the vast majority appeared to be middle-class
(approximately 90%) and perhaps 7% could be classified as ‘working-class’. This is
characteristic of all the other overseas studies which show the accused fathers to be
typically well-educated, white and of high socio-economic status. A few occupations were
extremely over-represented in comparison to the general population, for example, 10%
15 were clergy, 10% teachers and 7% academics. Unfortunately relevant comparative data on
occupations is not yet available from the 1996 Australian census. However, based on earlier
data obtained from the Australian Bureau of Statistics, approximately 0.08 of the
population worked as clergy or in related professions, which is a remarkable difference to
the survey fathers. In 1995-96 the proportion of employed males working in education
20 generally was 4.1%[5], compared to the survey’s total of 17%.
Ninety-three percent of the fathers represented in the survey had been accused of sexually
abusing their children during childhood,[6] based on the recovered memories of their
daughters. Of these, 36% were the only person accused, but more than half of the fathers
(57%) were not the only person accused, that is they were ‘co-accused’. Most of these were
25 accused together with the mothers, but some were amongst multiple accusations (up to as
many as ten) made by the accusing person.
1.2 The mothers
Almost a quarter (24%) of the mothers of accusing persons were born overseas, which is
not a high proportion given the high number of people born overseas in the Australian
30 population. It is only slightly higher than the average of 19% of Australians having at least
one parent born overseas.
The average age of the mothers in 1997 was 61 years, therefore as expected, they are in a
similar age group to the fathers in the survey.
It was more difficult to define the mothers according to occupations because there was a
35 large number of homemakers. Sixteen percent were in medical/nursing occupations and
14% were teachers - similar to the proportions in these occupations amongst employed
Australian women in 1995-96[7].
Sixty per cent of the mothers were not accused at all, although a large percentage - 37.5% -
were ‘co-accused’, often as being accessories or observers of the alleged crime in collusion
40 with the father. Only 2.5% of mothers were the only person accused (in the British
survey[8] 6% of biological mothers were the only one accused). The low number of
mothers solely accused could be due to the fact that very few sons have made allegations
against their mothers. This in turn may be partially explained by the fact that few males,
compared to females, seek therapeutic help, which appears to be strongly implicated in the
45 recovery of memories of an abusive childhood.
1.3 Children: The accuser and their siblings
1.3.1 The accuser
Ninety-eight per cent of the accusers were female which is a higher proportion than in most
similar overseas studies. For example, 87% of the accusers in the British False Memory
5 Society survey were female, and 92% in the USA survey conducted by the False Memory
Syndrome Foundation. The New Zealand study was closest to the present Australian one
with 99% female accusers with only one male accuser.[9]
The average age of the accusing person at the time of completing the survey in 1997 was 34
years (see further information in section 3.2 regarding the accusing person’s age at the time
10 the accusations were made).
The most frequent ordinal position was that of the middle child in the family; 35% of the
accusing persons were the eldest in their family and 19% were the youngest. These results
are similar to both the British and American surveys, which found that accusers were first-
born children in 39% (British) and 42% (USA) of cases. However, the middle child was not
15 a specific category in the overseas survey results, and it is difficult to make comparisons as,
depending on the size of the family, the middle may be the second, third or other.
Anecdotal evidence had led to the belief that accusers were more likely to be the middle
child in the family. In order for that to be confirmed it would be necessary to specifically
design a study focusing on birth order - an opportunity for an Adlerian-oriented
20 psychologist.[10] Having had early training in Adlerian Psychology, I believe this (family
constellation) is one of the overlooked aspects of the recovered memory phenomenon.
At the time of the survey only 40% of the accusers were married or in a de facto
relationship, therefore the majority of the accusers (average age in their thirties) were
without partners. However more than half have children, which at 3.75 per woman, is more
25 than double the current Australian average number of children per family and higher than
any Australian average recorded this century. The 1995 Australian fertility rate was 1.8
children per woman, and at the beginning of the 20th century it was 3.5 per woman.[11] It
could be speculated that having more than the average number of children, and especially if
caring for them without a partner, may cause stress overload on these women.
30 Seventy per cent of the accusers had completed their secondary education to year 12.
Australia has a very high year 12 retention rate and in 1997 it was 71%[12]. However these
women were completing their secondary education on average over 16 years ago when the
figure would have been considerably lower. There was also a remarkable 60% who had
received a tertiary education compared to the Australian average of 24% attending tertiary
35 institutions in 1995.[13] In the British survey 48%, and in the New Zealand sample 38%, of
the accusers had attended university, which are also much higher percentages than the
average university attendance in those countries. These figures strongly indicate that, in
Australia and internationally, the accusers as a group, are better educated than the general
population.
40 The occupations of the accusers were almost identical in both this Australian survey and
the British one. The so-called caring professions ( psychologists, counsellors, social
workers, teachers and similar) accounted for 37% in both these surveys. Statistics for 1995-
96 show that the proportion of employed females in these fields in Australia was
approximately 27%. There were 18% involved with home duties in Australia and 17% in
45 Britain. In Australia 28% of the accusers were unemployed, compared to 35% in the British
survey. However, this unemployment rate is not disproportionately high as, in Australia in

1995, 30% of females in the same age group as the accusers were not in the paid labour
force. [14]
With regard to the accusing person’s contact with their family, more than a third had
practically no family contact at all, a third were in contact with most of their family, and the
5 remainder were in contact with only some members of their family - usually one or two of
their siblings. This was a higher level of family contact than that reported in the British
survey: in 59% of cases in the UK there was no contact between the accuser and their
family, whilst 41% had some contact. Ever since the naming of the false memory syndrome
accused parents in America have experienced the same cutting off of contact with their
10 accusing child. The severance of family ties has always been a salient feature of this
syndrome, unlike other psychological problems where support networks are usually
encouraged and family input valued.
1.3.2 The accuser’s siblings
The average number of children in the accusing person’s family-of-origin was 4.2, a
15 considerably higher average than in the wider Australian population which in 1995 was 1.8
children per family [15]. However, during the sixties, when these families were growing
up, Australia was going through a period of high fertility known as the "baby boom" and
the average family then included approximately three children.
An unexpected statistic was that, out of all the siblings represented in this survey - a total of
20 252 - only 14.7% believed the accusations of their accusing sibling. However, in spite of
not believing, a large proportion (58%) remained in contact with the accuser, representing a
hopeful avenue of communication between estranged parents and their accusing adult child.
It is often tempting for accused parents to try to coerce their non-accusing offspring into
taking sides, to make a definite alignment with either the parents or the accuser. By
25 allowing their non-accusing children to maintain a neutral stance, parents would instead
preserve an important conduit between themselves and the accuser. Even minimal
communication may assist later efforts at family reconciliation.
Fourteen siblings (5.5%) of the original accusers also later became accusers and it is of
interest that ten of these fourteen attended the same therapist as their accusing sister.
30 Anecdotal evidence from the legal sphere indicates that it is becoming increasingly
common for a second sibling to later join her accusing sister in recovering questionable
memories of childhood sexual abuse after attending the same therapist. In the United States
12% of respondents to the 1997 FMS Foundation survey had more than one accuser in the
family[16] and in the British survey 10% of families had more than one accusing
35 daughter[17].
1.4 Family religion during the accusing person’s childhood
During their childhood almost two-thirds (63%) of the accusers were brought up in either
"very active" or "active" religious family environments. However most of the accusers as
adults (over 70%) later rejected any active religious practice. Several accusers who grew up
40 in non-religious families, were later participating in New Age beliefs.
Religious denominations: % (of actively religious) 1996
Census
Fundamentalist Christians (Christian Brethren, 39% 3%
Baptist, Reform Church, Jehovah’s Witnesses,
45 Seventh Day Adventists, etc.)
Anglican (Church of England, Episcopal) 20% 21%

Roman Catholic 18% 26%
Uniting 15% 7%
Others 3%
5 The above table clearly shows that an unusually high proportion of accusers come from the
more fundamentalist type of Christian denominations, especially when compared to their
level of representation in the Australian population as provided by the 1996 Census[18] and
listed in the above table. Although these denominations altogether accounted for only 3%
of the entire Australian population, 39% of accusers came from this type of family
10 background. Families with Uniting Church membership had approximately double their
representation in the survey compared to the total population. In comparison, Roman
Catholic families were under-represented, and Anglican families in the survey were equal
to their population numbers.
Various theories have been expounded as to likely explanations for the apparent correlation
15 (in Australia and the USA) between family upbringing in fundamentalist religious beliefs
and the later emergence of recovered memories and bizarre accusations against parents.
Like anyone who has spent years involved in the recovered memory phenomenon, I have
my own speculative ideas. However, until there is further large scale research, they will just
remain as speculations and not testable hypotheses.
20 These results relating to religious affiliation in this Australian survey differ markedly from
the British one which found that approximately 90% of British families were from the more
traditional churches, being predominantly Church of England and Roman Catholic.
Therefore, this is one aspect of the false memory syndrome where there appears to be
considerable difference between Australia and Britain.
25
The above table clearly shows that an unusually high proportion of accusers come from the
more fundamentalist type of Christian denominations, especially when compared to their
level of representation in the Australian population as provided by the 1996 Census[18] and
listed in the above table. Although these denominations altogether accounted for only 3%
30 of the entire Australian population, 39% of accusers came from this type of family
background. Families with Uniting Church membership had approximately double their
representation in the survey compared to the total population. In comparison, Roman
Catholic families were under-represented, and Anglican families in the survey were equal
to their population numbers.
35 Various theories have been expounded as to likely explanations for the apparent correlation
(in Australia and the USA) between family upbringing in fundamentalist religious beliefs
and the later emergence of recovered memories and bizarre accusations against parents.
Like anyone who has spent years involved in the recovered memory phenomenon, I have
my own speculative ideas. However, until there is further large scale research, they will just
40 remain as speculations and not testable hypotheses.
These results relating to religious affiliation in this Australian survey differ markedly from
the British one which found that approximately 90% of British families were from the more
traditional churches, being predominantly Church of England and Roman Catholic.
Therefore, this is one aspect of the false memory syndrome where there appears to be
45 considerable difference between Australia and Britain.
Section 2: FAMILY EXPERIENCES

2.1 Methods of discipline
Survey participants were asked to indicate what methods of discipline were used when the
accusing person was young. The list of options included "none" and "other" which enabled
respondents to add any other disciplinary methods not provided.
5 The following tables are presented in order of the frequency of the methods selected and
are shown separately for children under 12 years of age and over 12 years. It was
encouraging to observe that the most favoured method of discipline was reasoning, even
with children in the under twelve years age group.
10 Method 0-12 years No. % [19]

Reasoning …………………………….. 59 71
reprimanding 54 65
smacking or spanking ……………………... 50 60
admonishing 47 57
15 logical consequences ……………………... 30 36
sending to room 29 35
shouting ……………………………... …….. 26 31
denying privileges 22 27
grounding ………………………………14 17
20 other: pull hair [cultural]*[20] 1 1
time-out room * 1 1
shoe/wooden spoon* 1 1
25 Method 12 years & over No. %

reasoning 58 70
admonishing ………………………………. 35 42
reprimanding 32 39
logical consequences ……………………... 31 37
30 grounding 19 23
denying privileges ..…………………............. 15 18
shouting 12 14
sending to room …………………………... 7 8
smacking or spanking 4 5
35 other: not speak to child* ………………1 1
time-out room * [21] 1 1
2.2, 2.3, 2.4 Child rearing

40 Almost 80% of parents stated that they "only seldom" or "never" resorted to any physical
punishment of the accusing child when he or she was growing up. However as the above
table shows 60% indicated that they had smacked or spanked their accusing child when she
was under twelve years old. Although this may appear a high proportion using physical
punishment by present-day standards, these parents are now in their sixties and seventies
45 and raised their children at a time when "spare the rod and spoil the child" was the guiding
principle. Many parents of that generation felt that physical discipline was necessary during
early childhood, with the more verbal types of discipline at a later stage.

In comparison to their other children, accused parents felt that they had spent an average
amount of time with the accuser during her childhood. Therefore there was no support for
speculating that the accusing child had either been given less or more attention than her
non-accusing siblings. Psychological theories would suggest either scenario: for example, if
5 a child is a real victim of incest, she is frequently given more attention by the offending
parent, whereas if a child is neglected in comparison to her siblings, she may grow up
feeling resentment toward her parents. Although it is not possible to draw conclusions from
parents self-reported memories of their behaviour towards their children, the fact that the
survey parents report average time spent with their accusing child, would tend to indicate
10 neither of the above theoretical scenarios.
An idea I had prior to undertaking this study (based on anecdotal evidence) was that the
accusing person may have been considerably indulged or spoilt as a child, both materially
and in the amount of parental attention they received. However, the results indicate that
only 28% of parents thought this occurred within their families. The great majority (70%)
15 believed the accuser was not indulged or spoilt any more than other children.
2.5 Periods of family stress
Parents were asked to list any periods of family stress that may have affected the accusing
person when he or she was growing up and to provide the age of the child when the
stressful experience occurred to the family.
20 The responses to this question indicated some common incidents were experienced by
many of the accusing persons during their childhood. For example, 27% of the accusers had
experienced major relocation of the family home, often due to their parents transferring
work locations to interstate or overseas. ‘Moving house’ is one of the under-estimated
extremely stressful situations people can experience. The reader is referred also to section
25 3.1 regarding events occurring to the accuser as an adult immediately prior to the
accusations being made.
Almost a quarter (23%) of the accusing persons experienced the death of an immediate
family member during their childhood. This appears a high percentage, yet without a
comparable control group it is not possible to conclusively state that it is exceptional. The
30 death of a significant person also featured in the stressful experiences of the accusers prior
to making their allegations (see 3.1.). Psychological scales used to assess stressful life
experiences usually rate the death of a significant other person as one of the most
significant stressors.
The most unexpected experience during the childhood of many of the accusing persons was
35 that of actual sexual abuse. Thirteen percent of parents knew of actual sexual abuse
experienced by their accusing child, perpetrated by some other person, that they were
willing to write about on their questionnaire. This level of childhood sexual abuse is
particularly noteworthy as this information was volunteered in response to a general
question about stressful family experiences that "may have affected the accusing child".
40 Thirteen per cent appears to be a high rate of childhood sexual abuse to find when not
actually asking about it. For further information on this topic, refer to section 4.1.3 which
specifically asked if the respondent knew of any sexual abuse actually suffered by the
accusing person.
45
Section 3: THE ACCUSATIONS
3.1 Events preceding the accusation
3.1.1 Stressful experiences prior to the accusations
The following table lists, in order of frequency, the stressful experiences known to the
respondent, which occurred to the accusing person during the two to three years prior to the
5 allegations being made. Twenty-one items were provided, based on known psychological
stressors and respondents were given the opportunity to include any additional experiences
which may have occurred. These added events are marked with an asterisk. (Table inserted
on following page).
Relationship problems: As was expected - based on widespread anecdotal evidence - their

10 adult daughter’s major relationship problems preceded allegations of childhood sexual
abuse in many families. The British survey found that 55% of the accusing persons had
recently experienced relationship problems; a similar result to the 52% found in this survey.
The major disruption caused in a person’s life when they experience serious problems in
their main personal relationship often causes severe emotional disturbance. It is the way in
15 which this emotional disorder is handled that unfortunately sometimes leads to disreputable
therapists and the recovery of so-called repressed memories. These previously unknown
memories of childhood abuse are then used to explain the emotional pain being
experienced, instead of looking for the cause in the person’s current situation.
Death of a family member or friend: The number of accusing persons recently
20 experiencing the death of a family member or friend (22%) was very similar to that of their
childhood experiences where 23% had stressful bereavement experiences. The loss of a
significant person through death is well-known as one of the most stressful human
experiences. It is a situation that cannot be overcome or altered and its finality presents a
challenge to a person’s coping ability, especially if they are experiencing emotional
25 problems at the time.
Stressful experiences occurring to accusing person prior to accusations[22]
moving to new home 44 53

major relationship problems ……………………. 43 52
30 emotional or psychological illness 34 41
major changes in work conditions ……………….. 27 33
commencing or completing study 27 33
major change in financial situation ………………. 21 25
major life changes 20 24
35 buying a house or business ……………………... 19 23
death of family member or friend 18 22
physical illness or serious injury …………………. 17 20
divorce or separation 15 18
pregnancy, miscarriage or abortion ……………… 14 17
40 eating disorder 14 17
marriage or permanent relationship ……………… 13 16
drug or alcohol abuse 12 14
birth of a child …………………………………… 11 13
exceptional personal success 10 12
45 serious car or work accident ……………………… 4 5
*name change 4 5
victim of crime, e.g. assault, robbery ……………. 4 5
serious illness of children 3 4
*post natal depression ……………………………. 2 2
*endometriosis & food/chemical sensitivities 2 2
*saw psychologist ……………………………….. 1 1
*lonely overseas 1 1
5 *operation - tubal ligation ……………………….. 1 1
*overseas trip including contact with a pedophile 1 1
*moving to live & work overseas ……………….. 1 1
*in-laws & others living in house 1 1
*diagnosed bi-polar disorder at age 22 …………… 1 1
10 serious change in partner’s health 0 0
Moving to a new home: Surprisingly the most frequent stressful experience was that of
moving to a new home: this had also been the most frequently mentioned stressful
experience during the childhood of the accusing person. To be the most frequently
15 mentioned stressor both during childhood and adult life, this experience must have had
considerable impact on the families concerned. Moving one’s place of residence is
frequently connected to other forms of change in one’s lifestyle, such as schools,
employment, church, friends and local community networks.[25] The British study found
that only 21% of the accusing persons had recently moved home; the considerably higher
20 Australian figure may reflect a culturally different, more mobile lifestyle. And in Australia
even a move to a neighbouring state may involve distances of more than a thousand
kilometres - something not experienced in, say, England.
Emotional or psychological illness: A large number of accusers were perceived as

suffering an emotional or psychological illness (41%) which is not surprising as the usual
25 false memory syndrome scenario is that the person experiences a problem for which they
attend psychotherapy. They then gradually come to believe that they are victims of an
abusive childhood and begin to recover supposedly repressed memories of being sexually
abused by their father and others. This recovery of dubious memories is frequently
accompanied by a marked deterioration in the person’s psychological well-being (for
30 documentation see, for example, the Washington State Crime Victims Compensation
Program as reported in the FMS Foundation News-letter, vol.5, no.5, May 1996, p.1).The
British survey also found a similar percentage suffering from emotional and psychological
illnesses.
Eating disorder: Only 17% apparently suffered from an eating disorder prior to making
35 their accusations and, as will be detailed later, only 3% were known to have been diagnosed
by their therapist (after the accusations) as having an eating disorder. The number of
accusers with eating disorders appears very low, given that many therapists believe that an
eating disorder is a reliable indicator of childhood sexual abuse. Even more significant
results became evident on cross-tabulating questionnaire data. Of all the 27 accusers who
40 were known to the respondents to have actually been sexually abused[26] (eighteen of them
as children), only one had been diagnosed as having an eating disorder. And of the fourteen
accusers who had an eating disorder prior to making their allegations, not one was known
to have been sexually abused - apart from their unsubstantiated "recovered memories".
Therefore in this survey there appears absolutely no correlation between eating disorders
45 and actual sexual abuse.
Overall, this section indicates that accusing persons have been affected by multiple stressful
experiences, both during their childhoods and as adults prior to making their accusations of
childhood sexual abuse based on "recovered memories". It appears that the most significant

of these is: moving to a new home, the breakdown of an important relationship and the
death of a significant person.
3.1.2 Additional experiences
In addition to the checklist provided above, respondents were also asked if they knew of
5 any other experiences that may have contributed to the accusations. Because this was an
open question the responses were extremely varied, however one trend seemed to be
evident. More than a third of the accusing persons were affected by unsatisfactory sexual
relationships, which included at least one instance of an apparent hysterical conversion
disorder of temporary blindness.
10
Footnotes:
1 All rights reserved. No part of this report may be reproduced, stored in or introduced into
a retrieval system, or transmitted, in any form or by any means, without the prior written
permission of the author.
15 2 The writer, Merle Elson, has a private practice as a psychologist in a Melbourne suburb.
3 Several hundred parents, allegedly falsely accused of childhood sexual abuse on the basis
of recovered memories, have contacted the Australian False Memory Association (AFMA).
Only current financial members of the AFMA in 1996 were surveyed for this study.
4 See, for example, research of the Washington State Crime Victims Compensation
20 Program, as reported in the FMS Foundation Newsletter, vol 5, no.5, May 1996, p.1.
5 1997 Year Book Australia, No 79, W.McLennan, Australian Bureau of Statistics,
Canberra. p.109.
6 Seven per cent of survey fathers were not the accused person, i.e. others in the family
were accused.
25 7 Op.cit. p.109.
8 Gudjonsson, G H. Accusations by adults of childhood sexual abuse: a survey of the
members of the British False Memory Society (BFMS), Applied Cognitive Psychology,
Vol 1, 3-18, 1997.
9 Goodyear-Smith, F A, Laidlaw, T M & Large R G. Surveying families accused of
30 childhood sexual abuse: A comparison of British and New Zealand results. Applied
Cognitive Psychology, Vol 11, 31-34, 1997.
10 Alfred Adler, the founder of Individual Psychology on which many present-day
parenting skills programs are based, placed great importance of a child's position in the
family constellation. For example, Rudolf Dreikurs in Fundamentals of Adlerian
35 Psychology (1953) described the middle child as having "neither the same rights as the
older nor the privileges of the younger. Consequently, a middle child often feels squeezed
out between the two. He (sic) may become convinced of the unfairness of life and feel
cheated and abused." (emphasis added). p 41.
11 Op.cit. p.86.
40 12 The Age (Melbourne), 19/1/98, p.2.
13 Op.cit. p.249.
14 Op.cit. p.121.
15 Op.cit. p.86.
16 Pamela Freyd. Talk presented at Memory and Reality: Next Steps Conference,
45 Baltimore, 22-23 March 1997.
17 Gudjonsson, G. The members of the BFMS, the accusers and their siblings. The
Psychologist, March 1997, p113.
18 Social & Housing Characteristics, Australia, Australian Bureau of Statistics, Canberra,
1996, p.43.

19 Note that the percentages do not add to one hundred as most respondents selected more
than one method of discipline.
20 The parent who added that she pulled her child's hair as a method of discipline explained
that this was a common, culturally accepted practice in her country-of-origin.
5 21 All items marked with an asterisk were added by respondents.
22 These experiences occurred during the period of two to three years prior to making the
allegations.
23 Many experienced more than one of these situations.
24 Percentages have been rounded to the nearest whole number.
10 25 Unless, of course, the move is only a short distance and the family remains in the same
neighbourhood. However, most of the moves mentioned by these families were over
extreme distances, i.e., interstate and overseas.
26 See section 4.1.3 for details regarding the actual sexual abuse (known to the
respondents) that had been experienced by the accusers.
15 Australian False Memory Association
Caring for Families and Individuals
Email the AFMA at false.memory@bigpond.com PO Box 285
Fairfield Vic 3078
Ph: 02 9977 4076
20 END QUOTE
.
It must be clear from the above that we must be careful not to create some mass hysteria that
every NON PROFIT (NOT-FOR-PROFIT) entity is involved in sexual abuse and is paying of
victims for their silence but at the same time we must have in place a system that will protect
25 taxpayers from having funding intended to be used for “PUBLIC PURPOSES” ending up of so
to say paying of victims or otherwise not being used for which the NON PROFIT (NOT-FOR-
PROFIT) entity is registered for.
.
It is therefore I view essential as to have the obligations (referred to above) as to seek to
30 minimise any misuse and abuse of monies while not seeking to make it difficult for genuine
operating NON PROFIT (NOT-FOR-PROFIT) entities to conduct their affairs in all honesty.
.
Obviously we also have to consider not just sexual abuse but also other conduct that may be
deemed unbecoming to that of a NON PROFIT (NOT-FOR-PROFIT) entity operating for
35 “PUBLIC PURPOSES”.
.
We have also to consider decisions such as Adelaide Company of Jehovah's Witnesses
Incorporated -v- The Commonwealth [1943] HCA 12; (1943) 67 CLR 116 (14 June 1943)
RICH J
40 .
This as to legislative powers and other matters and likewise so the following;
.
Below I have quoted a submission by Scientology for being a religion and for this being able to
get tax exemption because of the raising of funds for religion including commercial activities.
45 This I
view is in fact unconstitutional.
I understand that the High Court of Australia made a ruling that Scientology is a religion, but in
my view this cannot whatsoever make a case for tax-exemption because;
.
50 71-391a001doc-State Aid to Religion Abolition Act 1871

2. Definitions
In the construction and for the purposes of this Act the following terms shall
if not inconsistent with the context or subject matter have the respective
meanings hereby assigned to them, that is to say—
5
"denomination" shall mean any church religious body sect or congregation
or the members of any church formed into or acting as a body of persons for
religious purposes of what kind of faith or form of
belief soever;
10 .
Therefore it would be inappropriate for the State of Victoria to determine that Scientology for
being a religion then is to be deemed a not for profit religion (denomination) and for this to be
tax exempted.
.
15 The High Court of Australia in its judgment failed to take consideration of this.
.
The Commonwealth shall not make any law for establishing any
20 prohibiting the free exercise of any religion, and no religious test
.
25
Constitution?
Mr. BARTON.-No; you have only two powers of spending money, and a
church could not receive the funds of the Commonwealth under either of them.
30 [start page 1773]

.
Mr. OCONNOR.-Yes. But the amendment of the American Constitution to which the
honorable and learned member refers was rendered
35 necessary by the fact that there is not the definite division of powers in that Constitution
that we have in our Constitution. I cannot imagine that clause 52 gives any ground from
which it could be argued that the Federal Parliament has the right to interfere in
regard to the exercise of religion, or to deal with religion in any way.
.
40 The Commonwealth of Australia therefore cannot interfere with religious practices but the States
can. The Commonwealth neither can provide FUNDING for religious practices by way of
taxation exemptions or tax deductions and the State of
Victoria clearly already prior to federation separated State and Church and as such when it
joined the federation it had this embedded principal in the Constitution.
45 .

Therefore I view that any DENOMINATION cannot have tax concessions on the basis that it is a
religion because this is unconstitutional, both for the commonwealth and the State of Victoria .
.
Further, I view that the Commonwealth
5 for itself should determine what is deemed to be for federal purposes a not-for-profit
organisation AND IT CANNOT ALLOW REGISTRATION OF ANY ORGANISATION ON
BASIS OF BEING A RELIGION.
.
Therefore there must be a separation of non-commercial purposes and commercial purposes and
10 profits must be made taxable. We must stop this elaborate rip of upon taxpayers by
denominations by stopping tax exemptions for denominations.
.
This has nothing to do with the social welfare work performed by
denominations, as where the religious body can show that it spend monies towards assisting the
15 poor, regardless of his/her religious beliefs or the lack thereof, then it would be appropriate for
those purposes for the Commonwealth to allow registration as a not0-for-profit organisation for
this part.
.
The USA courts have extensively canvassed the issue of funding in particular to religious bodies
20 providing education and I have in my past published books in the INSPECTOR-RIKATI®
series extensively canvassed this and as such do not need to repeat the same, however it came
down to it that the Federal Government is to fund education cost of students attending religious
schools provided that the funding was used for secular
and so non-religious purposes.
25 .
The Commonwealth clearly does have legislative powers to prohibit any not-for-profit
organisation to be entitled to the registration as a not-for-profit organisation where it fails to
provide for compliance with State and/or federal laws regarding conditions of under age children
and/or where the not-for-profit organisation uses a condition of secrecy towards State and/or
30 federal law enforcement officers and other State and/or federal staff to ensure that laws
governing children are not breaches.
.
What this would amount to is that any not-for-profit organisation, regardless of being a
denomination or not, would be put on notice that if they are employing children contrary to legal
35 provisions under State and/or federal laws then their registration will be deemed invalid and they
will be liable for taxation in an ordinary manner as any other business.
.
We have organisations such as Exclusive Brethern and the Scientology and others who are
purported to be not-for-profit organisation but are in a veil of secrecy that defies to be a
40 not-for-profit organization. Hence, any business that purposes to be a not-for-profit organisation
must be deemed accountable to the general public, as after all it is depriving the general public of
taxation being paid by it, and therefore in all its conduct must remain transparent.
.
Take for example the Salvation Army. For tax exemption purposes it would require to be divided
45 in two parts for accountability. One part would be for being a not-for-profit organisation where it
can account for all monies raised being invested into assisting people regardless of their religious
beliefs and another part in its religious collections that cannot be tax exempted as to allow this is
unconstitutional.
Therefore, any organisation that seeks registration for not-for-profit organisation must separate
50 its religious part as this cannot be allowed to be tax exempted.
.
QUOTE
has a physical presence in Australia and which incurs expenditure and pursues
objectives principally in Australia . As a consequence all the income derived by the
5 END QUOTE
.
Again
.
10 QUOTE
Mr. REID.-I suppose that money could not be paid to any church under this Constitution?
Mr. BARTON.-No; you have only two
powers of spending money, and a church could not receive the funds of the
Commonwealth under either of them.
END QUOTE
.
Providing tax exemptions clearly is providing funding.
.
QUOTE
END QUOTEEND QUOTE
25 .
Again, there is no issue where tax-exemption is provided for secular matters. However, if any
denomination is limiting its assistance to the needy to religious membership of a denomination
then it cannot be deemed to be entitled to be classified as a not-for-profit organisation.
.
30 As I understand it about the assistance provided by the Salvation Army it does not stipulate and
neither enforce any religious conduct or membership but will assist any person irrespective of
having a religious beliefs. As such, this is the kind of welfare assistance I deem for that part
would be entitled to receive not-for-profit tax exemption, where as other denominations that are
ambivalent in providing services and/or those who require membership of their denomination
35 could not be deemed to classify for not-for-profit tax exemptions.
.
When any organisation (religious or not) pursues a tax exemption it must be deemed that
the organisation is telling the world that they are in it for the good of others and not
seeking to make a profit at the expense of the tax payers. Hence, such organisations must
40 then be held to comply to a certain code of conduct that they will observe all relevant State
and Federal legal provisions and failing to do so their status as a not-for-profit organisation
will be deemed to be void.
.
Organisations who now may exploit under age children may then realise that they better do not
45 because they could loose their status of being a not-for-profit organisation and so applicable from
when the breaches of law were occurring. As such, even if breaches were finally detected some
years later having been occurring over the years the taxation would then have to be adjusted for
those years that the breaches were found to have occurred.
.
QUOTE
5 if they had another motive.
END QUOTE
.
Therefore any legislation targeted upon religions, at least by the commonwealth, could be
deemed unconstitutional, but if it were to apply to all businesses seeking not-for-profit
10 registration then it would not be unconstitutional.
.
In my past published books I exposed how a not-for-profit (non-religious) organisation was
having children allegedly in apprenticeship even so after a
mere few weeks to tell them there was no work while the not-for-profit organisation was
15 collecting thousands of dollars in apprenticeship training.
.
In my view this company was abusing the not-for-profit registration by making huge profits.
Hence I view that any not-for-profit organisation must declare every cent it spend so the public
can hold them accountable. Also that there must be a legislation in place that any not-for-profit
20 organisation must not exceed a certain percentage of wages, etc.
.
As I understand it we had a councillor who reportedly raised hundreds of thousands of dollars
and about 10% ended up with charities and the rest he appeared to have paid to himself for
consultancy fees. This to me underlines the gross abuse and mismanagement of the not-for-profit
25 registration and the tax exemption by this.
.
We also have that collections for not-for-profit organisations are being done by companies who
then may pay less then 10% of donations to the charity. Yet the entire donation somehow is made
tax deductible. What we therefore have is that if I were to own a not-for-profit business and were
30 wanting to reduce my own taxable income then I could effectively make a donation to my own
not-for-profit business and score tax-emption for the monies received from this not-for-profit
business and also have a tax deduction for the monies so donated. A double whammy, so to say.
.
In my view, the registration for not-for-profit companies should be federally controlled and then
35 states could adopt the federal system. It would then exclude not-for-profit registration on pure
religious grounds!
.
It would mean that no longer tax payers are ripped of by the unpaid taxes being sent overseas!
After all whenever any not-for-profit organisation is excluded from paying taxes it means that
40 taxpayers have to make up the shortfall!
.
We either have a constitution or we don’t and it is long overdue that we adhere to the
constitutional provisions and limitations.
.
QUOTE
Mr. SOLOMON.- We shall not only look to the Federal Judiciary for the protection
of our interests, but also for the just interpretation of the Constitution:
END QUOTE
50 .
Regretfully, you will find that the High Court of Australia in its various judgements fails to
appropriately consider the intentions of the Framers of the Constitution. Still, having set out the
above I urge that you ensure urgent and appropriate action is taken so any business that seeks to
have a not-for-profit registration for tax-exemption purposes does earn that right by being secular
in its conduct and obeys all legislative provisions such as those applicable to under age children,
including their education and work hours.
5 .
Hansard 2-3-1898 Constitution Convention Debates;
QUOTE Mr. HIGGINS.-
I know that a great many people have been got to sign petitions in favour of inserting such
religious words in the preamble of this Bill by men who know the course of the struggle in
10 the United States, but who have not told the people what the course of that struggle is, and
what the motive for these words is. I think the people of Australia ought to have been told
frankly when they were asked to sign these petitions what the history in the United States
has been on the subject, and the motive with which these words have been proposed. I think
the people in Australia are as reverential as any people on the face of this earth, so I will
15 make no opposition to the insertion of seemly and suitable words, provided that it is made
perfectly clear in the substantive part of the Constitution that we are not conferring on the
Commonwealth a power to pass religious laws. I want to leave that as a reserved power to
the state, as it is now. Let the states have the power. I will not interfere with the
individual states in the power they have, but I want to make it clear that in inserting
20 these religious words in the preamble of the Bill we are not by inference giving a
power to impose on the Federation of Australia any religious laws.
END QUOTE
.
25 QUOTE
Mr. HIGGINS.-No; I think the honorable member will see that a recital in the
preamble to the Constitution is a very different thing from an oath which may be
taken in a court of justice or anywhere else.
Mr. DOUGLAS.-You will find that you can make an affirmation without referring
30 to Almighty God. Any person can make an affirmation who has no belief in Almighty
God.
The CHAIRMAN.-I do not think the honorable member is in order in making a speech.
Mr. HIGGINS.-I thank the honorable member for being disorderly under the
circumstances. I think there is a good deal of force in what he says, but I also see this,
35 that the taking of an oath in a court of justice or on taking office is quite a different
thing from having in a well thought-out preamble to a Constitution any reference to
religious belief.
END QUOTE
.
40 Hansard 2-3-1898 Constitution Convention Debates;
QUOTE
Dr. QUICK (Victoria).-I have no doubt that the Convention ought to thank the honorable
member (Mr. Higgins) for the warning he has thought fit to give; at the same time, I, for
one, see no cause for fearing that any of the dangers he has suggested will arise from
45 inserting these words in the Bill. He has said that under the American Constitution, in
which no such words as these appear, certain legislation has been carried by Congress
forbidding the opening of the Chicago Exhibition on a Sunday. If under a Constitution in
which no such words as these appear such legislation has been carried, what further danger
will arise from inserting the words in our Constitution? I do not see, speaking in ordinary
50 language, how the insertion of such words could possibly lead to the interpretation
that this is necessarily a Christian country and not otherwise, because the words
"relying upon the blessing of Almighty God" could be subscribed to not only by
Roman Catholics and Protestants, but also by Jews, Gentiles, and even by
Mahomedans. The words are most universal, and are not necessarily applicable only
5 to Christians. I see no reason whatever for fearing that any danger will arise from placing
the words in the preamble. This is a Constitution in which certain powers are conferred on
the Parliament of the [start page 1737] Commonwealth. I do not know that the placing of
these words in the preamble will necessarily confer on that Parliament any power to
legislate in religious matters. It will only have power to legislate within the limits of the
10 delegated authority, and the mere recital in respect to the Deity in the preamble will not
necessarily confer on the Federal Parliament power to legislate on any religious matter.
Whatever may have been the legislation of Congress as to the Chicago Exhibition, there
may be reasonable grounds for doubting as to whether it may not be ultra vires.
END QUOTE
15 .
While so much is argued about transferring legislative powers from the States to the
Commonwealth, such as they did regarding Aboriginals (S.51(xxvi), the problem is that then the
Commonwealth of Australia has no constitutional powers to legislate as to sacred sites of
Aboriginals because s.116 of the constitution prohibits it to legislate as to religion. As such there
20 is a BLACKHOLE created, this as the States no longer could legislate!
QUOTE
25 religion, or for imposing any religious observance, or for
END QUOTE
30 .
The following deals with religion and trust issues. Again, regardless what may be applied
within State matters, under Commonwealth law no special consideration as to religion can
be provided.
.
QUOTE Mr. OCONNOR.-
The Commonwealth Parliament will have no right whatever to interfere with these matters
unless by some implication arising out of a provision of [start page 1779] this kind. With
regard to the subject of the amendment of the honorable and learned member (Mr.
40 Symon), there is no doubt that the Commonwealth might have the right to impose any
form of oath which it thought fit as a qualification of office. I am quite willing however,
that some such provision as the honorable and learned member has suggested should be
inserted in the Constitution, so that it would not be possible for the Commonwealth to
require a religious test.
45 END QUOTE
.
http://law.ato.gov.au/atolaw/view.htm?rank=find&criteria=AND~RELIGION~basic~exact&targ
et=CD&style=java&sdocid=JUD/51CLR1/00005&recStart=141&PiT=99991231235958&recnu
m=154&tot=497&pn=ALL:::ALL
50 QUOTE

Roman Catholic Archbishop of Melbourne v. Lawlor & Ors; His
Holiness the Pope v National Trustees, Executors and Agency Co of
Australiasia Ltd & Ors
51 CLR 1
5 1934 - 0523C - HCA
(Judgment by: Dixon J)

Between: Roman Catholic Archbishop of Melbourne
10 And: Lawlor & Ors
Between: His Holiness the Pope
And: National Trustees, Executors and Agency Co of Australiasia Ltd & Ors
Court:
High Court of Australia
15 Judges:
Gavan Duffy CJ
Rich J
Starke J
Dixon J
20 Evatt J
McTiernan J
Subject References:
Charities
Gift to establish Catholic daily newspaper
25 Validity
Dependent relative gift
Taxation and revenue
Estate duty
Alteration of statutory order of application of assets
30 Contrary provision
Legislative References:
Property Law Act 1928 (Vic) No 3754 - s 131
Administration and Probate Act 1928 (Vic) No 3632 - s 33; s 34; s 163; Second Schedule,
Part II
35 Estate Duty Assessment Act 1914 No 22 - s 35
Hearing date: 6 March 1934; 7 March 1934; 8 March 1934; 9 March 1934; 23 May 1934
Judgment date: 23 May 1934
MELBOURNE
40 Judgment by:
Dixon J
The Roman Catholic Archbishop of Melbourne and the Bishops of Ballarat, Bendigo and
Sale compose the Hierarchy in Victoria. To them the testator specifically bequeathed
certain personalty "as a nucleus, to establish a Catholic daily newspaper." He proceeded to
45 bequeath specifically other personal property "to the same beneficiaries ... to found a farm,
or supplement those already secured, for the training of delinquent or orphan boys, to
country life; the income from these two benefactions, to be used for Catholic education, or
any good object the Hierarchy may decide, until sufficient funds are in hand, to found the
daily paper and secure the farm." Half the residue of the estate he gave "to the Hierarchy in
50 addition to the bequest, already made, to establish a Catholic daily paper." The construction
of this residuary disposition is disputed, but, in my opinion, its meaning is that, for the
purpose of establishing a Catholic daily paper, an additional bequest is made to the

Hierarchy, not that, besides the bequest already made for establishing a Catholic daily
paper, a bequest, unconditioned by any expression of purpose, is made to the Hierarchy.
The specific and the residuary gift alike raise the question whether a bequest for the
establishment of a Catholic daily paper is valid. "A trust to be valid must be for the benefit
5 of individuals, which this is certainly not, or must be in that class of gifts for the benefit of
the public which the Courts in this country recognize as charitable in the legal as opposed
to the popular sense of that term" (per Lord Parker of Waddington, Bowman v Secular
Society Ltd,F33 at p. 441). "There are four objects, within one of which all charity, to be
administered in this Court, must fall; 1st relief of the indigent; in various ways: money:
10 provisions: education: medical assistance; etc; 2ndly, the advancement of learning: 3rdly,
the advancement of religion»; and 4thly, which is the most difficult, the advancement of
objects of general public utility" (Sir Morice v Bishop of Durham,F34 at p. 951). This
classification, which, in substance, was adopted by Lord Macnaghten in Pemsel's Case,F35
does not mean that whatever can be brought within the description of one of these heads is
15 a good charitable purpose, but that what cannot be referred to any of them is not recognized
as charitable (In re Macduff).F36 A trust for the purpose of «religion» is prima facie a trust
for a charitable purpose. It is, however, not every purpose of «religion» that falls within the
legal conception of charity. Religious uses or purposes, using these terms in their natural
unrestricted meaning, undoubtedly include purposes which may or may not be charitable
20 (cf., per Cussen J., In re Dobinson; Maddock v Attorney-General).F37 The prima facie rule
supplies a presumption which, if no contrary intention appears in the trust instrument,
operates to confine the religious purpose within the boundaries of legal charity. "In
connection with the expression 'charitable uses or purposes,' and also 'religious purposes,'
the Court has taken upon itself to give them what may be called artificial meanings, and to
25 read those artificial meanings into the wills of testators as well as into Acts of Parliament.
'Charitable uses or purposes' applies to much more than almsgiving or the relief of poverty,
and extends to a number of matters set out in The Commissioners for Special Purposes of
the Income Tax v Pemsel.F38 On the contrary, 'religious purposes,' for the purpose of
upholding bequests, has been restricted in its meaning to such purposes or uses as are
30 charitable, so that by these two devices charitable uses or purposes are made very
extensive, and religious uses or purposes are made sufficiently restricted to fit in with that
extensive meaning of charitable uses or purposes" (per Cussen J., In re Dobinson; Maddock
v Attorney-General).F39
"The process by which in England it has been held that a trust for 'religious
35 purposes' must receive effect is thus concisely stated by Lindley L.J. in the
case of White v White, F40 at p. 53.
'We come therefore to the conclusion, first, that the

gift is for religious purposes; and secondly, that
being for religious purposes, it must be treated as a
40 gift for 'charitable' purposes unless the contrary can
be shewn. If once this conclusion is arrived at the
rest is plain. A charitable bequest never fails for
uncertainty'"
(Grimond (or Macintyre) v Grimond,F41 at p. 609, per Lord Moncrieff, whose judgment
45 was approved in the House of Lords).F42
In order to be charitable the purposes themselves must be religious; it is not enough that an
activity or pursuit in itself secular is actuated or inspired by a religious motive or
injunction: the purpose must involve the spread or strengthening of spiritual teaching
within a wide sense, the maintenance of the doctrines upon which it rests, the observances
50 that promote and manifest it (cf. Keren Kayemeth Le Jisroel Ltd v Inland Revenue

Commissioners,F43 at pp. 657, 661). The purpose may be executed by gifts for the support,
aid or relief of clergy and ministers or teachers of «religion», the performance of whose
duties will tend to the spiritual advantage of others by instruction and edification; by gifts
for ecclesiastical buildings, furnishings, ornaments and the like; by gifts to provide for
5 religious services, for sermons, for music, choristers and organists, and so forth; by gifts to
religious bodies, orders, or societies, if they have in view the welfare of others. A gift made
for any particular means of propagating a faith or a religious belief is charitable; moreover,
a disposition is valid which in general terms devotes property to religious purposes or
objects. But, whether defined widely or narrowly, the purposes must be directly and
10 immediately religious. It is not enough that they arise out of or have a connection with a
faith, a church, or a denomination, or that they are considered to have a tendency beneficial
to «religion», or to a particular form of «religion».
The law has found a public benefit in the promotion of «religion» as an influence upon
human conduct; but it has no standard by which to estimate what public benefit of that
15 order is produced indirectly or incidentally by means which, although they may be
considered to contribute to the good of «religion», are not in themselves religious and do
not serve directly a religious object. There have been many, and there are still some,
provisions of the law, the maintenance or abrogation of which has been a matter of deep
concern to adherents of one or other religious faith. But these have been considered, not
20 charitable religious purposes, but political objects. In Bowman's Case, F44 Lord Parker of
Waddington said:"The abolition of religious tests, the disestablishment of the Church, the
secularization of education, the alteration of the law touching «religion» or marriage, or the
observation of the Sabbath, are purely political objects. Equity has always refused to
recognize such objects as charitable ... a trust for the attainment of political objects has
25 always been held invalid, not because it is illegal, for every one is at liberty to advocate or
promote by any lawful means a change in the law, but because the Court has no means of
judging whether a proposed change in the law will or will not be for the public benefit, and
therefore cannot say that a gift to secure the change is a charitable gift. The same
considerations apply when there is a trust for the publication of a book. The Court will
30 examine the book, and if its objects be charitable in the legal sense it will give effect to the
trust as a good charity: Thornton v Howe;F45 but if its object be political it will refuse to
enforce the trust: De Themmines v De Bonneval."F46 It is accordingly well recognized that
what concerns a religious denomination goes far beyond the religious purposes which are
charitable. "There are, beyond question, many purposes peculiar to every religious
35 denomination, which are not charitable" (per Lord FitzGibbon L.J., MacLaughlin v
Campbell).F47
The objects of a denomination may extend to purposes which, although pious,
philanthropic, or benevolent, may not be charitable (cf. per Holmes L.J. (4); cf. per Porter
M.R.)F48 Thus, in In re Jackson; Midland Bank Executor and Trustee Co v Archbishop of
40 Wales,F49 a bequest to the Archbishop for the time being of Wales to be applied by him
inter alia, "in his discretion in any manner which he might think best for helping to carry on
the work of the Church in Wales" was held bad by Eve J., because, "Any expenditure
which he might in his discretion think best calculated for helping the work of the Church
would ... be within his discretion irrespective of the question whether it was of a charitable
45 nature or not". F50 Counsel for the next of kin said:"It is impossible on the true construction
of the will to say that the use of the Archbishop's discretion must necessarily be charitable.
He might use the money provided by the gift to promote a newspaper or a political
campaign having for its object the restoration of the Established Church in Wales. That
clearly would not be a charity".F51 (Cf. per Russell J. in In re Tetley,F52 who, in relation to
50 "patriotic purposes" gives the illustration of a newspaper.) In In re BainF53 a bequest to the
Vicar of a Church "for such objects connected with the Church as he shall think fit," was
upheld only because it was construed by the majority of the Court as confined to objects
directly connected with the Church in contradistinction to objects which are only conducive
to the welfare of the parishioners or the congregation who attend the Church; that is, as
confined to the support of the Church, its fabric, and its services.
It was agreed, however, that, if the bequest included the various activities organized or
5 carried on under the superintendence or authority of the Church, the gift would be bad (cf.
In re Stratton; Knapman v Attorney-General).F54 Again, in In re Davies; Lloyds Bank Ltd v
Mostyn,F55 Clauson J. and the Court of Appeal held invalid as non-charitable a trust in
favour of an Archbishop "for work connected with the Roman Catholic Church in the ...
Archdiocese." Clauson J. said: F56
10 "The expression 'work connected with the Roman Catholic Church' must
cover much that was not in the strict sense charitable.
Thus, the carrying on of a social club, qualification for membership of

which was adherence to the Roman Catholic faith, could not be said to be a
charitable purpose, but it was 'work connected with the Roman Catholic
15 Church.'"
Finally, in Dunne v Byrne,F57 the Privy Council drew the contrast between purposes of
«religion» and things conducive to the good of «religion». They are not synonymous, but
the latter is wider and more indefinite. "The fund," said Lord Macnaghten,F58 "is to be
applied in such manner as the 'Archbishop may judge most conducive to the good of
20 «religion'» in his diocese. It can hardly be disputed that a thing may be 'conducive,' and in
particular circumstances 'most conducive,' to the good of «religion» in a particular diocese
or in a particular district without being charitable in the sense which the Court attaches to
the word, and indeed without being in itself in any sense religious. In Cocks v Manners,F59
there is the well known instance of the dedication of a fund to a purpose which a devout
25 Roman Catholic would no doubt consider 'conducive to the good of «religion»,' but which
is certainly not charitable. In the present case the learned Chief Justice suggests by way of
example several modes in which the fund now in question might be employed so as to be
conducive to the good of «religion» though the mode of application in itself might have
nothing of a religious character about it." The instances, which the learned Chief Justice
30 (Sir Samuel Griffith) had suggested, appear from the following passage from his
judgment:F60
"It seems to me that purposes may reasonably be called conducive to the
good of «religion» although they have no such direct tendency. For
instance, it might well be said that a political propaganda for the purpose of
35 procuring State endowment of churches or denominational schools, or the
establishment of a newspaper conducted on religious or high moral
principles, or the establishment of a contemplative order of nuns, would be
purposes conducive to the good of «religion». Certainly the Archbishop
might reasonably think so. I do not at present see my way to deny such a
40 proposition. But I do not think that either purpose would be a charitable
purpose."
His Honour, therefore, gave as an instance of a non-charitable purpose the very thing which
the testator has directed, and apparently the instance gained the approval of the Privy
Council. Perhaps the dictum of Griffith C.J., so approved, should be treated as decisive of
45 the present question. But, without the help of this precise authority, the answer to the
question would not appear to me to be doubtful. The character of the journal contemplated
by the testator is indicated only by the phrase "a Catholic daily newspaper." There are no
expressions referring to the purposes of «religion». It is only such expressions that should
be presumptively construed as charitable. The reference to religious objects must be
50 contained, if at all, in the word "Catholic." But that word embraces much more than the
"purposes of «religion»" even in the ordinary unrestricted sense of those words. The phrase
"Catholic daily newspaper" should, perhaps, be interpreted in the light of the fact that the
fund is placed in the hands of the Hierarchy in Victoria. But even so its character cannot be
considered as differing from similar newspapers conducted elsewhere under the authority
5 of the Church, which, as the affidavit filed states, are established as "one of the means
adopted by the Catholic Church for the maintenance and propagation of the Catholic faith
and the advancement of the Catholic «religion»." The nature of those newspapers is
described as follows:
"Such newspapers in addition to ordinary daily news and articles of general
10 interest include a record of events of special interest to Catholics, contain
articles on religious and moral topics, propagate and defend accepted moral
principles and Catholic doctrines and religious, moral and sociological
subjects, and oppose and denounce principles, ideas and doctrines hostile to
or subversive of Christaian faith and morality."
15 The carrying on of such an object is not a charitable religious purpose, as the citations I
have made from authority appear to me clearly to establish. The conduct of a newspaper
may be considered conducive to «religion» or a form of «religion», but no more. Indeed, it
is an activity which cannot be confined even within the very wide description of
"conducive to «religion." There is, in my opinion, no other head of charity, to which the
20 bequest can be referred, and, accordingly, I think it is not charitable.
It is contended, however, that s. 131 of the Victorian Property Law Act 1928 operates to
give validity to the bequest for the establishment of a Catholic daily newspaper. This
enactment makes the following provision:
"(1)
25 No trust shall be held to be invalid by reason that some non-charitable and invalid as
well as some charitable purpose or purposes is or are or could be deemed to be
included in any of the purposes to or for which an application of the trust funds or any
part thereof is by such trust directed or allowed.
(2)
30 Any such trust shall be construed and given effect to in the same manner in all
respects as if no application of the trust funds or any part thereof to or for any such
non-charitable and invalid purpose had been or should be deemed to have been so
directed or allowed."
The suggestion is that, in so far as religious purposes are contained within the description
35 "Catholic daily newspaper," they may be segregated from the non-charitable elements with
which they are associated in that description, and, by force of this section, given by
themselves an independent effect. The contention appears to me to confound the purposes
of the newspaper with the purposes of the trust. The purpose of the trust was to contribute
to the foundation of a newspaper of a specified character. The character is non-charitable.
40 A newspaper of another character is then assumed, having some of the attributes which the
newspaper described by the will would possess, but lacking many others. Such a newspaper
is necessarily different in character and its establishment is another purpose, not part of the
same purpose. The object of s. 131 is apparent. It was to remove or provide against a very
well known ground upon which many dispositions were invalidated. That ground is that a
45 trust not in favour of an individual is wholly invalid, if, according to its terms, the trustees
are at liberty to apply the fund as well to purposes outside the definition of charity as to
purposes within it, and if independently of the trustees, no measure is provided of the
amount applicable to the non-charitable purpose. "It is undoubtedly the law that, where a
bequest is made for charitable purposes and also for an indefinite purpose not charitable,
50 and no apportionment is made by the will, so that the whole might be applied for either
purpose, the whole bequest is void" (per Lord Halsbury L.C., Hunter v Attorney-
General,F61 at p. 315). Such cases are altogether different from the present, where one

particular application of the fund is authorized, namely, towards the establishment of a
Catholic journal, and that object is not contained within the legal definition of charity.
The true application of the statutory provision is well illustrated by the directions of the will
as to intermediate income of the same fund, namely, "the income from those two
5 benefactions, to be used for Catholic education, or any good object the Hierarchy may
decide, until sufficient funds are in hand, to found the daily paper and secure the farm."
"Any good object" goes beyond charitable purposes and, therefore, apart from s. 131, the
whole trust of income would fail, but the section operates to exclude the non-charitable
purposes and leave the income applicable to Catholic education, and, perhaps, also to other
10 charitable purposes answering the description "good object," although this is doubtful.
Upon the assumption that the bequest to establish the newspaper was held void, it was
contended that the trust of income should be upheld, either as an independent and severable
trust, or because it was segregated and validated by the operation of s. 131. A charitable
trust of income of indefinite duration would result. In my opinion the trust of income is
15 dependent upon the trust of corpus. It is a direction for the application of income of a fund
disposed of for a main purpose pending the effectuation of that purpose. The failure of the
trust of corpus involves the trust of intermediate income, and s. 131 has, I think, no
application. For these reasons I am of opinion that the answers given by the Full Court to
the first three questions in the originating summons were right, and that the appeal from
20 that part of the order should be dismissed.
This conclusion makes it necessary to consider the appeal from the declaration made by the
Full Court in answer to the tenth question in the originating summons. That declaration is:
"That the funeral testamentary and administration expenses, debts and Victorian probate
duties and the pecuniary legacies are payable out of the bonds and stock of the testator not
25 specifically bequeathed in or by the said will." The declaration gives effect to the
interpretation which the Court placed upon a provision of the will introducing the gift of
residue. The provision is as follows: "If the bonds and stock reserved for probate and any
liability of mine, are insufficient for the purpose, and all the cash bequests mentioned, the
more readily saleable (advantageously realizable) to be sold to meet the liability; the
30 balance, if any, and the remainder of my estate shares etc., not mentioned or bequeathed, to
be realized at an opportune time, in an active market, and divided equally one half to" etc
The order of application of assets is, in the absence of a contrary direction in the will,
determined now by statute. In the case of funeral, testamentary and administration
expenses, debts and liabilities payable out of the estate, not including Victorian probate
35 duty and Federal estate duty, the incidence of the burden involved in their discharge is dealt
with by s. 34 of the Administration and Probate Act 1928 and the Second Schedule thereto.
The remarkable amendment to Part II. of the Schedule made by the Statute Law Revision
Act 1933 (No. 4191) does not apply to this case. In the case of Victorian probate duty, the
incidence is determined by s. 163 of the Administration and Probate Act 1928. In the case
40 of Federal estate duty, it is determined by s. 35 of the Estate Duty Assessment Act 1914-
1928.
(1) Funeral, testamentary and administrative expenses, debts and liabilities and
pecuniary legacies: Secs. 33 and 34 and the Second Schedule of the Victorian
Administration and Probate Act 1928 correspond to ss. 33 and 34 and the First
45 Schedule of the English Administration of Estates Act 1925, whence they are taken.
The order of application of assets prescribed by s. 34 may be varied by the will of the
deceased (Second Schedule, Part II., 8 (a)). Section 33, which has effect subject to the
provisions of any will (sub-s. 7), imposes upon property as to which the deceased dies
intestate a trust for conversion. The expression "intestate" includes a person who leaves a
50 will, but dies intestate as to some beneficial interest in his real or personal estate (s. 4,
definition of "intestate"). Out of the proceeds of conversion there are to be paid funeral,
testamentary and administration expenses, debts and other liabilities properly payable
thereout, having regard to the rules of administration contained in the enactment, and, out
of the residue of the money, there is to be set aside a fund sufficient to provide for any
pecuniary legacies bequeathed by the will, if any, of the deceased (s. 33 (2)).
In the order of application of assets prescribed for solvent estates, the first is:
5 "Property of the deceased undisposed of by will, subject to the retention
thereout of a fund sufficient to meet any pecuniary legacies."
The second in order is property disposed of by a residuary or general gift, but, again,
"subject to the retention thereout of a fund sufficient to meet any pecuniary legacies."
The third is property disposed of for the payment of debts; and the fourth, property charged
10 with the payment of debts. Then the fifth is
"The fund, if any, retained to meet pecuniary legacies."
Last follow, in order, property specifically devised or bequeathed and property appointed
under a power. We should, I think, hesitate to depart from the interpretation placed upon
these provisions in England, at any rate by decisions of the Court of Appeal. It appears now
15 to be established that the first category includes all property and every interest which is not
effectually disposed of by will. If dispositions are void or lapse, and, in consequence an
estate or interest remains undisposed of, that estate or interest falls into the category of
assets first applied, in the statutory order of the application of assets. Further, it is
established that a share of the residue given under a lapsed or void disposition falls under
20 this head (In re Lamb, F62 per Eve J.; In re Kempthorne, F63 per Maugham J.; In re Tong, F64
per Clauson J.; In re Worthington). F65 (Contrast In re Kempthorne,F66 per Lawrence L.J.)
It is also established that the undisposed of property, including lapsed and invalidly given
shares of residue, is the primary source for the payment of pecuniary legacies. This is the
interpretation put upon the words, "subject to the retention thereout of a fund sufficient to
25 meet any pecuniary legacies," considered with the direction contained in s. 33 (2) to set
aside a fund out of the proceeds of conversion to provide for them (In re Worthington).F67
The application of the provisions so interpreted is attended by much difficulty. As the
purpose of the rules contained in Part II. of the Schedule is to determine how the
dispositions of the estate shall bear the outgoings such as debts and liabilities, which go in
30 diminution of the total, it might have been understood as speaking of the various portions
of the estate prior to that diminution. But pecuniary legacies form, not an outgoing from the
estate, but portion of the estate liable in its due order to bear outgoings. Residue prior to the
deduction of debts may be ascertained, and the debts may be thrown on that part or share of
the amount so ascertained, which is undisposed of, in exoneration of other parts or shares.
35 But the ascertainment involves the prior deduction of the amount of the pecuniary legacies.
If these are then thrown against the undisposed of share of residue, the deduction is restored
and the whole residue is swollen, including the lapsed share. Further, there is necessarily
some contrariety between the will and the statutory directions. A will containing bequests
of pecuniary legacies and residuary dispositions must mean that the residuary legatees shall
40 take what is left after the deduction of pecuniary legacies. The payment of the legacies is
meant to be prior to the ascertainment of the share of residue, which, ex hypothesi, lapses,
and, according to the statutory directions, would provide the source of the payment. But the
statutory rules have effect subject to any intention which appears from the will with
reasonable clearness.
45 Thus, in the course of his judgment in In re Tong, F68 referring to In re Lamb,F69 Clauson J.
says:
"If on the true construction of the will the residue meant that which was left
after the debts and funeral and testamentary expenses and legacies had been
paid, the will itself could have made provision for the discharge of those
50 payments, and recourse to Part II. of the Schedule would be unnecessary."
But could true residue mean anything else? It appears to have been considered that a
solution of the difficulty so arising is supplied by the existence of an express direction in
the will for the prior deduction of legacies, debts or expenses in ascertaining residue. Such
a direction has been treated as a sufficient indication that these burdens shall be regarded as
5 discharged before the undisposed of residuary share is ascertained, and not out of that
share. But effect is given to the statutory order in the absence of some such express
direction, or, at any rate, of some reference to the deduction of these payments. In In re
Lamb, the will gave specific and pecuniary legacies, and proceeded to direct that "the rest
residue and remainder" of the estate should be divided into shares, one of which lapsed.
10 Eve J. could "see nothing to exclude the application of the statutory order", F70 and threw the
pecuniary legaciesF71 as well as debts upon the lapsed share of residue. But, in In re Petty;
Holliday v Petty, F72 Astbury J. considered that the statutory order was displaced by the will
because it directed conversion of the real and personal estate, and, out of the proceeds,
payment of funeral and testamentary expenses, debts and legacies, and then disposed of
15 "the residue of the said moneys" in moieties. He distinguished In re Lamb on the ground
that the will in that case contained a mere direction to pay debts followed by a specific
devise, a gift of legacies, and, subject thereto, a residuary disposition. In In re Atkinson;
Webster v Walter, F73 the lapsed gift was a devise of realty, not a share of residue. But the
will bequeathed the personalty upon trust for conversion, and out of the proceeds, for
20 payment of the funeral and testamentary expenses and debts and the legacies. Clauson J.
said:F74
"Here the will contains a clear direction to the trustees to convert the
personal estate and out of the moneys produced by such conversion to pay
his funeral and testamentary expenses and debts: until that provision is
25 worked out there is no necessity to have recourse to Part II. of the First
Schedule of the Act."
In In re Kempthorne, F75 a division of the residuary personalty was directed "subject to and
after payment of my funeral and testamentary expenses and debts and the legacies
bequeathed by this my will or any codicil thereto, and the duty on any legacies bequeathed
30 free of duty." The Court of Appeal held that the statutory order of application of assets did
not apply and make a lapsed share the primary source for payment of liabilities and
legacies. Lord Hanworth M.R. said: F76
"The terms of the will are explicit and the fund, or net residue, is not
ascertained-does not come into being-until the expenses, debts and legacies,
35 have been paid."
Russell L.J., as he then was, said:F77
"The statutory order of application of assets is overridden by the testator's
own provisions, the effect of which is (to put the result in another way) that
the only personal estate as to which he has died intestate is a share of what
40 personal estate remains after the expenses and debts have in fact been paid
thereout."
In In re Tong, F78 the Court relied upon the distinction between, on the one hand, an express
direction to pay prior charges followed by a bequest of "the remainder" of the estate, and,
on the other hand, the mere existence of prior charges which must be provided before
45 ascertaining residue. The will directed payment of legacies free of duty and payment of all
duty on gifts out of the estate, and it bequeathed pecuniary legacies and annuities and dealt
with specific realty. The testator then disposed of "the remainder of my estate" in shares,
one of which lapsed. Clauson J. said:F79

"When I come to the final gift I find a disposition of the 'remainder of my
estate.' This I construe, in view of the preceding reference to estate duty, as
a direction to pay the estate duty and the legacies out of the general estate
before ascertaining the fund which is the subject-matter of the final gift; but
5 I can find no direction dealing with funeral, testamentary and administration
expenses, debts and liabilities, other than and except this estate duty. In
order to ascertain how these expenses, debts and liabilities must be met I
must, by reason of s. 34, sub-s. 3, of the Act turn to Part II. of the First
Schedule."
10 Accordingly the statutory order prevailed in the case of debts and the like, but not in that of
legacies. This judgment was approved in the Court of Appeal. But Romer L.J. said: F80
"I fail to find anything in the will amounting to an indication of the testator's
intention that the funeral and testamentary expenses and debts generally
should be paid in any other mode than that specified in Part II. of the First
15 Schedule. Even if the testator had directed his executors to pay all his
funeral and testamentary expenses and debts and then given the remainder
of his estate on certain trusts, I should still have hesitated to say that this
amounted to an indication that the expenses and debts were to be paid in any
other order out of the assets than that provided for in the First Schedule.
20 The truth of the matter is that there is nothing in this Act which prevents or
is intended to prevent executors from paying expenses, debts and liabilities
out of the first assets coming to their hands available for the purpose; and
Part II. of the First Schedule really only deals with the ultimate adjustment
of the burden as between the parties becoming entitled to the testator's
25 estate. Therefore the use of such a word as 'remainder' does not seem to me
to make any difference. Such words throw no light on how as between the
persons having beneficial interests in the remainder the liability for expenses
and debts is to be apportioned. On this point I agree with the learned Judge."
(Cf. In re Littlewood; Clark v Littlewood.) F81 In In re Worthington,F82 the will bequeathed
30 legacies free of duty, and then devised and bequeathed all the residue of the estate both real
and personal in two equal shares, one of which lapsed. Bennett J. distinguished between
debts and legacies on the ground that payment of the former was not, and of the latter was,
directed. His decision was reversed by the Court of Appeal. Lord Hanworth M.R. said:F83
"The learned Judge seems to have read the will as providing for the payment
35 of the legacies first and to have thought that the residue was not to be
ascertained until after they had been paid. But the provisions of the statute
indicate that unless there is some provision in the will which negatives the
prescribed order of administration, that order of administration must apply
both to legacies and to debts. The learned Judge seems to have thought that
40 because of the specific reference to legacies in the will there was an
indication of an intention that the statutory order of administration should
not apply to them. But, after all, if legacies are given by a will, there must be
a specific reference to them, and I do not see how that can be sufficient to
alter the statutory order of administration."
45 Lawrence L.J. said:F84
"It was contended for the respondent that the gift of 'the residue of my
estate' operated as showing an intention to effect such a variation. In my
opinion that contention is not well founded. The will contains no direction
as to how the executor is to administer the estate and no direction indicating
an intention that the legacies should be paid otherwise than in the statutory
order of administration."
He then expressed his agreement with what Romer L.J. had said in Tong's CaseF85 about the
use of the word "remainder," and the absence of assistance from such words. Romer L.J.
5 said:F86
"All I find is a gift of legacies and a gift of residue, and there is no direction
given to the executor as to how, as between persons ultimately found to be
interested in the estate, the debts, expenses and legacies are to be paid. I see
no reason for departing from anything I said in In re Tong." F87
10 The observations of all three learned Judges suggest that language in the will, which does
no more than express what is undeniable in any case, that residue must be arrived at after
the deduction of prior charges, does not override the statutory order. I confess that I feel a
difficulty in understanding why a different result should be produced by a specific direction
to pay out of the fund which, after all prior deductions are made, constitutes residue.
15 The declaration of the Full Court now under appeal is based upon the view that the will
provided how the debts and other charges and the legacies should be borne, and so
displaced the statutory declaration which would have thrown them upon the property of the
deceased undisposed of by will. The declaration, however, does not really solve the
difficulty which has arisen. It declares that the legacies and charges are payable out of
20 specific property which it describes as "not specifically bequeathed in or by the said will."
But this means that, subject to the charge of debts and other outgoings and legacies, which
the declaration imposes thereon, that very property forms a component part of the residue.
Now the whole question relates to residue.
The invalidity of the specific bequest for the establishment of a Catholic daily newspaper
25 caused the specific property so bequeathed to fall into residue. Thus the question is whether
the equal half share of the residue invalidly bequeathed to establish a Catholic daily
newspaper should bear debts, charges, and legacies in priority to or ratably with the other
half share of residue, the disposition of which is valid. Why should the fact, that specific
assets forming part of residue are made the primary source for the payment of debts and
30 other charges and legacies, affect the priority between the beneficiaries upon whom the
shares devolve into which residue is divided? The division is of the beneficial property in
the conglomerate mass of assets in which the specific assets required to answer debts,
charges and legacies are contained, at any rate after and subject to that requirement. The
effect of the will may have been considered to be to withhold from that mass so much of
35 the specific assets or their proceeds as is applied in payment of legacies, debts and charges
so as to produce the result described by Lord Russell in the passage already quoted from
Kempthorne's Case, F88 namely, that the only estate as to which the testator has died
intestate is a share of what remains after expenses, debts and legacies have in fact been paid
thereout. But the declaration does not cover the adoption of that answer to the question in
40 the summons.
However the testator express himself, it appears to me that an intestacy as to a share of true
residue is always of such a character. In the present case, the property of the deceased not
specifically disposed of comprised land, money on current account and fixed deposit,
shares in companies conducting commercial and industrial undertakings, and a large
45 amount of Government stock and bonds. He bequeathed pecuniary legacies amounting to a
considerable sum. The provision in the will upon which the Full Court relied is very
difficult to understand. The will contains no reservation of bonds and stock for probate or
any liability of the deceased. It does not, however, specifically dispose of any Government
bonds or stock, and the testator may have considered his abstaining from any such specific
50 bequest tantamount to a reservation. Commonwealth stock is accepted at par and Treasury
bonds at face value in payment of Federal estate duty (s. 52 (c) of Commonwealth
Inscribed Stock Act 1911-1932), and this may have been a reason with the testator for such
a "reservation." But the chief difficulty in the sentence lies, not in the condition, but in the
principal clause.
What is intended by the words "the more readily saleable (advantageously realizable)"?
5 The bonds and stock are assumed to be exhausted, and, in any case, are marketable
securities all equally "readily saleable." Probably some other kind of property not
specifically disposed of was intended to be specified; perhaps some class of shares. I am
unable to supply the omission, or find a satisfactory meaning for this part of the clause. But
the conditional statement "if the bonds and stock reserved for Probate and any liability of
10 mine, are insufficient for the purpose, and all the cash bequests mentioned" does imply that
he intended or supposed that some bonds and stock would be utilized to meet debts, probate
duty and legacies. What bonds and stock he intended to refer to must be in some degree
uncertain, but, on the whole, I think it should be taken to mean those not specifically
disposed of, of which he died possessed. But, in my opinion, the implication that such
15 bonds and stock are to be resorted to for debts and legacies, the reference to "the remainder
of my estate shares etc., not mentioned or bequeathed," and the direction to divide this
residue or balance, are not separately or in combination enough to displace the statutory
rules for the application of assets. These matters evidence no intention to saddle any
interest or property disposed of otherwise than as residue with legacies, debts and charges,
20 nor any intention that residue should be considered as a net fund relieved from the
incidence of these charges. Much less is there any intention disclosed inconsistent with a
lapsed share of residue bearing the payments in priority to the share effectively given.
I think that funeral, testamentary and administration expenses and pecuniary legacies fall
primarily on the property undisposed of by will consisting of the share of residue invalidly
25 bequeathed to establish the newspaper.
(2) Victorian probate duty: The incidence of this duty is governed by s. 163 of the
Administration and Probate Act 1928, which provides:
"Unless a contrary intention appears in the will the executor or
administrator of the estate of any deceased person shall (subject to the
30 provisions of the last preceding section) pay any duty payable on the
whole or any part thereof under the provisions of this Part out of the
residue of such estate."
By sub-s. 4 "residue" is defined for the purposes of the section as including unbequeathed
personalty and any undevised realty. The considerations and views, which I have already
35 set out, would lead to the conclusion that no "contrary intention appears." But, in any event,
the definition of residue covers property as to which there is an intestacy, including lapsed
shares of residue.
(3) Federal estate duty: No separate consideration seems to have been given to this
duty in the Supreme Court, and little or no argument was directed to it before us.
40 By s. 35 of the Estate Duty Act 1914-1928, subject to any different disposition contained in
the will, the duty is apportioned among the beneficiaries in proportion to their interests,
certain charitable gifts excepted. The will does contain a different disposition, if, but only
if, in the clause in question, the word "probate" includes Federal estate duty and the
reference to "the bonds and stock reserved" is held to be sufficiently certain, and to refer to
45 the Government stock and bonds not specifically disposed of by the will. No argument was
directed to the first of these questions, and the second question was not discussed with
reference to estate duty.
In these circumstances we should be justified in refusing to deal with the question in this
Court. But I have already expressed my opinion that the clause should be taken to refer to
50 stock and bonds not specifically disposed of. The question whether the testator, by his lay
use of the word "probate," meant to include estate duty, is not susceptible of much
argument. Estate duty is expressly mentioned in the originating summons. It is, I think, on
the whole, better that we should decide the point. In my opinion, the testator did mean to
include Federal estate duty under the word "probate." Accordingly, I think there is a
different disposition, namely, a provision that estate duty shall be paid out of so much of
5 the residue as consists of Government bonds and stock not specifically bequeathed.
I think the appeal from the declaration in answer to the tenth question in the summons
should be allowed, and, except as to probate, estate and succession duty, the question
should be answered: According to the order of the application of assets set out in Part II. of
the Second Schedule of the Administration and Probate Act 1928, and primarily out of the
10 invalidly disposed of share of residue. As to probate duty, it should be answered: Out of the
shares of residue ratably. As to estate duty, for myself, I would answer the question: Out of
so much of the residue as consists of Government stock and bonds, and as between the
shares of residue ratably.
END QUOTE
15 .
For decades I have used a personal Dutch language Bible whenever having to swear an
oath and no judge ever prevented me from doing so because the oath itself is not relevant as
to how it is used as long as it constitutes to be an oath where a person doesn’t desire to do
an Affirmation.
20 .
http://www.law.berkeley.edu/faculty/sklansky/evidence/evidence/cases/Cases%20for%20TOA/
Ward,%20United%20States%20v.htm
QUOTE
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
25 v.
WALLACE WARD, DEFENDANT-APPELLANT
No. 91-10293
United States Court of Appeals, Ninth Circuit

Argued and Submitted May 11, 1992
30 Decided August 19, 1992
As Amended; No Petition for Rehearing Entertained April 1, 1993
989 F.2d 1015 (9th Cir. 1992)
Wallace Ward, in pro per.
Robert Bork, Asst. U.S. Atty., Las Vegas, NV, for plaintiff-appellee.
35 Appeal from the United States District Court for the District f Nevada.
Before FLETCHER, POOLE and T.G. NELSON, Circuit Judges.
FLETCHER, Circuit Judge:
Wallace Ward appeals his conviction of three counts of attempt to evade income tax in
violation of 26 U.S.C. � 7201 and three counts of failure to file income taxes in violation
40 of 26 U.S.C. �7203. Ward argues that a new trial is necessary because the district court

did not allow him to swear to an oath of his own creation, thereby precluding him from
testifying in his own defense. We reverse and remand for a new trial.
BACKGROUND
Ward is the president of I & O Publishing Company, a mail-order house and publisher
5 located in Boulder City, Nevada. The prosecution presented evidence at trial that despite
having substantial income, neither I & O nor Ward filed tax returns or paid income taxes
for the years 1983, 1984 and 1985.
On March 29, 1990 a grand jury indicted Ward on three counts each of tax evasion and
failure to file income tax returns. Ward chose to represent himself at trial. On July 9, 1990,
10 Ward filed a "Motion to Challenge the Oath," which proposed an alternative oath that
replaced the word "truth" with the phrase "fully integrated Honesty." The oath would read,
"Do you affirm to speak with fully integrated Honesty, only with fully integrated Honesty
and nothing but fully integrated Honesty?" For reasons we will not attempt to explain,
Ward believes that honesty is superior to truth. Magistrate Lawrence R. Leavitt ruled on
15 August 2, 1990 that "the oath or affirmation which has been administered in courts of law
throughout the United States to millions of witnesses for hundreds of years should not be
required to give way to the defendant's idiosyncratic distinctions between truth and
honesty." The district court overruled Ward's objections to the magistrate's order on August
28, 1990, and again on October 8, 1990. Ward pursued an interlocutory appeal on the issue,
20 which was dismissed for lack of jurisdiction. United States v. Ward, No. 90-10534 (9th Cir.
April 24, 1991).
A three-day trial commenced on February 11, 1991. Ward made a lengthy opening
statement and actively cross-examined government witnesses. At a sidebar during the
second day of trial, Ward offered to take both the standard oath and his oath. The
25 prosecutor was amenable to the compromise, but the district court refused to allow it. "This
is an oath that has been used for a very long time," the district court said, "And I'm not
going to establish a precedent where someone can come in and require the court to address
that matter differently." At the close of the government's case on the third day of trial, Ward
asked once again to testify under his oath. The judge again refused, saying "[T]he oath has
30 been used for a very long time. . . . That's the oath that will be administered." Ward did not
testify and presented no witnesses. The jury convicted Ward of all counts after an hour's
deliberation.
Ward now appeals. He argues that the district court's insistence on an oath that violated his
beliefs abridged his First Amendment right to free exercise of religion and his Fifth
35 Amendment right to testify in his own defense.
DISCUSSION
Questions of trial management are ordinarily reviewed for abuse of discretion. United
States v. Goode, 814 F.2d 1353, 1354 (9th Cir. 1987). However, this case turns on the
defendant's First and Fifth Amendment rights. We review questions of constitutional law de
40 novo. United States v. McConney, 728 F.2d 1195, 1203 (9th Cir.) (en banc), cert. denied,
469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).
Judges may not determine the truth or falsity of matters of faith. Even so, we must
determine as a threshold matter whether Ward's beliefs are within the ambit of the First
Amendment. In order for Ward to invoke "the protection of the Religion Clauses, [his]
45 claims must be rooted in religious belief." Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct.
1526, 1533, 32 L.Ed.2d 15 (1972).
But what is a religious belief? That is the question. In describing "the richness and
variety of spiritual life in our country," the Supreme Court has noted that some of the
more than 250 sects in the United States "believe in a purely personal God, some in a
supernatural deity; others think of religion as a way of life envisioning as its ultimate
5 goal the day when all men can live together in perfect understanding and peace."
United States v. Seeger, 380 U.S. 163, 174, 85 S.Ct. 850, 858, 13 L.Ed.2d 733 (1965).
"There are those," the Court continued, "who think of God as the depth of our being;
others, such as the Buddhists, strive for a state of lasting rest through self-denial and
inner purification; in Hindu philosophy, the Supreme Being is the transcendental
10 reality which is truth, knowledge and bliss." Id. at 174-75, 85 S.Ct. at 858. In short,
the religious fabric of this country is one of a "vast panoply of beliefs." Id. at 175, 85
S.Ct. at 859.
In determining whether Ward's own peculiar notions1 are protected as religious

beliefs, "[the] task is to decide whether the beliefs professed . . . are sincerely held and
15 whether they are, in [Ward's] own scheme of things, religious." Id. at 185, 85 S.Ct. at
863; see also Welsh v. United States, 398 U.S. 333, 339, 90 S.Ct. 1792, 1796, 26 L.Ed.2d
308 (1970) (quoting same language in Seeger). "Religious" beliefs, then, are those that
stem from a person's "moral, ethical, or religious beliefs about what is right and
wrong" and are "held with the strength of traditional religious convictions." Welsh,
20 398 U.S. at 340, 90 S.Ct. at 1796. 2 While there can be no question that a "purely
secular philosophical concern[]," Callahan v. Woods, 658 F.2d 679, 683 (9th Cir.
1981), is not encompassed by the free exercise clause, we conclude that the "generous
functional (and even idiosyncratic) definition [of religion and religious beliefs in the]
free exercise [context]," Grove v. Mead School District, 753 F.2d 1528, 1537 (9th Cir.)
25 (Canby, J., concurring), cert. denied, 474 U.S. 826, 106 S.Ct. 85, 88 L.Ed.2d 70 (1985),
includes Ward's system of principles. 3
To the extent that the free exercise clause does not protect "so-called religions which .
. . are obviously shams and absurdities and whose members are patently devoid of
religious sincerity," Callahan, 658 F.2d at 683 (internal quotation marks omitted), the
30 focus of the judicial inquiry is not definitional, but rather devotional. Id. That is, is
Ward sincere? Are his beliefs held with the strength of traditional religious convictions?
Ward does not describe his beliefs in terms ordinarily used in discussions of theology or
cosmology (although he at one point uses the term "atheistic"), but he clearly attempts to
express a moral or ethical sense of right and wrong. Ward's actions are evidence of the
35 strength of his beliefs. He strongly professes innocence of the crimes charged, yet he
preferred to risk conviction and incarceration rather than abandon his version of the oath.
Compelling him to testify under the "truth" oath would, he says, "profoundly violate" his
"freedom of belief" and run counter to the "convictions that are the central theme of all his
published books and writings for the past 22 years." This is the sincerity of true religious
40 conviction. We conclude that Ward professes beliefs that are protected by the First
Amendment.
The court's interest in administering its precise form of oath must yield to Ward's First
Amendment rights. To begin with, there is no constitutionally or statutorily required form
of oath. Federal Rule of Evidence 603 requires only that a witness "declare that the witness
45 will testify truthfully, by oath or affirmation administered in a form calculated to awaken
the witness' conscience and impress the witness' mind with the duty to do so." The advisory
committee notes to Rule 603 explain that "the rule is designed to afford the flexibility
required in dealing with religious adults, atheists, conscientious objectors, mental
defectives, and children. Affirmation is simply a solemn undertaking to tell the truth; no
50 special verbal formula is required." This rule represents no break with the common law,
which recognized that the oath's efficacy may depend upon both the general name and
nature of the witness' faith and the formula of words or ceremonies which he considers as
binding, i.e., as subjecting him to the risk of punishment.
But it cannot matter what tenets of theological belief or what ecclesiastical organization he
5 adheres to, provided the above essentials are fulfilled, and it cannot matter what words or
ceremonies are used in imposing the oath, provided he recognizes them as binding by his
belief.
6 Wigmore, Evidence � 1818 (Chadbourne rev. 1976) (original emphasis).
Our cases have routinely held that it is reversible error for a district court to prevent a party
10 from testifying solely on the basis of the party's religiously-based objections to the form of
the oath. In Gordon v. State of Idaho, 778 F.2d 1397 (9th Cir. 1985), a plaintiff in a �1983
action professed religious objections to oath or affirmation, offering instead to say "I
understand that I must tell the truth. I agree to testify under penalty of perjury." Using First
Amendment analysis requiring that government use the "least restrictive means" to its ends
15 when free exercise is at stake, we held that it was an abuse of discretion for the district
court to insist upon the standard oath and to dismiss plaintiff's case for failure to present
evidence. See also Ferguson v. C.I.R., 921 F.2d 588 (5th Cir. 1991) (tax court proceeding,
similar facts). Criminal trials additionally implicate the defendant's Fifth Amendment right
to testify.
20 All that the common law requires is a form or statement which impresses upon the mind
and conscience of a witness the necessity for telling the truth. Thus, defendant's privilege to
testify may not be denied him solely because he would not accede to a form of oath or
affirmation not required by the common law. . . . [A]ll the district judge need do is to make
inquiry as to what form of oath or affirmation would not offend defendant's religious
25 beliefs but would give rise to a duty to speak the truth.
United States v. Looper, 419 F.2d 1405, 1407 (4th Cir. 1969). See also Moore v. United
States, 348 U.S. 966, 75 S.Ct. 530, 99 L.Ed. 753 (1955) (per curiam) (criminal defendant
with religious objections to the word "solemnly" in the oath must be allowed to testify).
Neither the magistrate nor the district court cited to any of these authorities, relying instead
30 on their perception that the standard oath had not changed "for hundreds of years." While
oaths including the familiar "truth, whole truth, and nothing but the truth" formulation date
back at least to the seventeenth century, see 6 Wigmore, Evidence �1818(2) (Chadbourne
rev. 1976), the principle that the form of the oath must be crafted in a way that is
meaningful to the witness also predates our constitution. In Omichund v. Barker, 1 Atk. 22,
35 45 (1744), Lord Chief Judge Willes wrote, "It would be absurd for [a non-Christian
witness] to swear according to the Christian oath, which he does not believe; and therefore,
out of necessity, he must be allowed to swear according to his own notion of an oath." See
also Atcheson v. Everitt, 1 Cowp. 382, 389 (1776) (Mansfield, L.C.J.) ("[A]s the purpose of
[the oath] is to bind his conscience, every man of every religion should be bound by that
40 form which he himself thinks will bind his own conscience most").
This case has an odd twist in that the defendant offered to take the traditional "truth" oath,
but only if he were permitted to also take his "fully integrated honesty" oath. In Ward's
view, as best we can state it, only his oath expressed a commitment to the abstract purity of
absolute "fully integrated honesty" that must be extracted from anyone before that person's
45 word can be relied upon. The standard "truth" oath was so much surplusage �distasteful,
wrong, but not necessarily a mortal sin to take.

His own oath superimposed on the traditional one would have taken nothing away from the
commitment to tell the truth under penalties of perjury and, indeed, in the defendant's mind
imposed upon him a higher duty. 4 Under these circumstances the district court clearly
abused its discretion in refusing the oath and preventing the defendant's testimony. We do
5 not have a case where the witness offers to swear only to a cleverly worded oath that
creates loopholes for falsehood or attempts to create a safe harbor for perjury as in United
States v. Fowler, 605 F.2d 181, 185 (5th Cir. 1979), cert. denied, 445 U.S. 950, 100 S.Ct.
1599, 63 L.Ed.2d 785 (1980), where the court properly refused testimony from a defendant
who would not say so much as "I state that I will tell the truth in my testimony," and was
10 willing to say only "I am a truthful man" or "I would not tell a lie to stay out of jail."
Ward's "attempt[] to express a moral or ethical sense of right and wrong," Welsh, 398 U.S.
at 340, 90 S.Ct. at 1796, coupled with the de rigueur fervor, brings his beliefs squarely
within those safeguarded by the free exercise clause.
Ward also seeks to vindicate what he perceives to be his right to have all his witnesses
15 sworn to his oath. This he cannot do. Ward has no standing to assert the First or Fifth
Amendment rights of others. Hong Kong Supermarket v. Kizer, 830 F.2d 1078, 1081 (9th
Cir. 1987). Ward also alleges numerous trial errors which we need not consider in light of
our grant of a new trial.
REVERSED and REMANDED.
20 POOLE, Circuit Judge, dissenting:
The majority seizes upon the defendant's semantic objection to the word "truth" and
concomitant preference for the term "honesty" to reverse a conviction, but this result is not
commanded by the Free Exercise Clause and runs afoul of the rule that any oath taken must
convince the court that a witness is committed to truthful testimony and is aware of the cost
25 of dishonesty on the stand. I would hold that the district court did not abuse its discretion in
failing to provide a customized oath for Ward.
It is axiomatic that even the most sincere of beliefs is not entitled to the protection of the
Free Exercise clause unless it is rooted in religion. See, e.g., Thomas v. Review Board, 450
U.S. 707, 713, 101 S.Ct. 1425, 1429, 67 L.Ed.2d 624 (1981); Wisconsin v. Yoder, 406 U.S.
30 205, 215, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972). We do not require a belief in God,
but we do require a belief to "occup[y] a place in the life of its possessor parallel to that
filled by the orthodox belief in God." Mason v. General Brown Central School Dist., 851
F.2d 47, 51 (2d Cir. 1988). A "purely secular philosophical concern" is not enough to
override the state's interest in uniform regulation. Callahan v. Woods, 658 F.2d 679, 683
35 (9th Cir. 1981); see also Johnson v. Moore, 948 F.2d 517, 520 (9th Cir. 1991).
I believe that Ward's objection to the oath ordinarily required of witnesses by Fed.R.Evid.
603 amounts to nothing more than a philosophical predilection. Ward does not tell us how
his concerns about the misuse of the word "truth" affects his ability to cope with the
pressures and challenges of his daily life. He does not enlighten us as to how habitual
40 application of the term "honesty" provides him spiritual growth, relates to his
understanding of life's purpose and meaning, or guides his daily routine. He does tell us
that "honesty" means that all of the world's problems will disappear because then we will
all know people are not lying, but I fail to see how this prediction satisfies the requirement
that Ward's preference for a particular word be as important, or even as relevant, as religion
45 is in the lives of many people.
Even were I to give Ward the benefit of the doubt and ascribe religious significance to his
"ultimate concern" with the merits of the word "honesty," I would still decline to require
the district court to accommodate his objection. The district court must modify the oath to
reflect genuinely held objections to it, but the court must also satisfy itself that the witness
has committed himself to speak the truth. It is not enough that the witness says he knows of
his obligation to do so; there must be a promise based on the awareness that failure to be
5 honest is punishable under our law. See United States v. Looper, 419 F.2d 1405, 1407 (4th
Cir. 1969); Wilcoxon v. United States, 231 F.2d 384, 387 (10th Cir. 1956), cert. denied, 351
U.S. 943, 76 S.Ct. 834, 100 L.Ed. 1469 (1957); Gordon v. State of Idaho, 778 F.2d 1397,
1401 n. 2 (9th Cir. 1985) (Weigel, J., dissenting). Ward's proposed alternative oath does not
contain an acknowledgment of the duty to speak truthfully and does not ensure that the
10 defendant is aware of the cost of dishonesty.
The majority's accommodation of Ward's "purely secular philosophical concerns,"

Callahan, 658 F.2d at 683, will result not in protection of a valuable Constitutional right
but in numerous wasteful and time-consuming attacks on the oath mandated as a means of
guaranteeing truth and of expediting the administration of justice. I dissent.
15 END QUOTE
.
Some 35 pages are reproduced below in regard of the meaning of “British subject” which are
quotations of statements of the Framers of the Constitution about this.
.
20 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
25 QUOTE
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
30 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
35 remains today, a constitutional and political unity between the UK and Australia which
100 years of history denies.
END QUOTE
..
Again, this has been canvassed below extensively also, that to the contrary the Framers of the
40 Constitution very much considered this term “British subjects”
.
The Commonwealth of Australia Constitution Act 1900 (UK)
QUOTE
(ii) taxation; but so as not to discriminate between States or parts
45 of States;
END QUOTE
.
The Commonwealth of Australia Constitution Act 1900 (UK)
QUOTE
50 114 States may not raise forces. Taxation of property of

Commonwealth or State
A State shall not, without the consent of the Parliament of the
Commonwealth, raise or maintain any naval or military force, or
impose any tax on property of any kind belonging to the
5 Commonwealth, nor shall the Commonwealth impose any tax on
property of any kind belonging to a State.
END QUOTE
.
While this means that neither the State can raise tax on Commonwealth property and the
10 Commonwealth can neither raise tax on State property it doesn’t mean that neither can apply a
tax onto each other, it simply means that neither can tax the “property” but anything else they
can.
.
* What is the difference between property and “anything else”?
15 .
**#** Well, a “property” is an item that you can say see with your eyes. Even if this is
underground and later is mined but “anything else” is where for example the Commonwealth as
proprietor obtains a title of a property within State boundaries but did not become the sovereign
of the property as in having total control over the property then all State laws are and remain
20 applicable other then taxation on the property and any law which might be inferior to
Commonwealth law.
(See also the status of PROPRIETOR above (page 11))
Say, a property is used for telecommunication and the Commonwealth built a gigantic tower on
the property beyond State planning laws. If the commonwealth used this tower for
25 telecommunication then it is not bound by State laws. However if it uses the telecommunication
tower for some private company to rent the property then it is not for Commonwealth purposes
and then State laws do apply. Also, if the Commonwealth rent out the facilities then for the part it
rents out the property it is bound to pay taxes, as otherwise it could undermine the collection of
taxes by the State.
30 .
QUOTE
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.
END QUOTE
35 .
QUOTE
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,
40 &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
45 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
50 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?
5 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
10 any exemption in the case of any State.
END QUOTE
.
QUOTE
15 Clause 14. A state shall not, without the consent of the parliament of the commonwealth,
impose any duty of tonnage, or raise or maintain any military or naval force, or impose any
tax on any land or other property belonging to the commonwealth.
Sir SAMUEL GRIFFITH: My attention has been called by one of my colleagues to the
fact that there are no corresponding words in the bill prohibiting the commonwealth from
20 taxing state lands. In order to remove that objection, I move:
That the following words be added to the clause:-"nor shall the commonwealth impose
any tax on any land or property belonging to a state."
Mr. GILLIES: Is it contemplated that in the case of Crown land belonging to the
states, that land may be taxed?
25 Sir SAMUEL GRIFFITH: It will prevent that being done.
Amendment agreed to; clause, as amended, agreed to.

END QUOTE
.
Now lets consider what Barton J (as he then was), and others, stated in Attorney-General of New
30 South Wales v Collector of Customs (NSW) [1908] HCA 28; (1908) 5 CLR 818 (23 May 1908)
regarding duties on imported rails by the NSW Government;
.
Attorney-General of New South Wales v Collector of Customs (NSW) [1908] HCA 28; (1908)
5 CLR 818 (23 May 1908)
35 QUOTE Griffith C.J.
The point raised under sec. 114 is a more difficult one. That section provides that "A State
shall not ... impose any tax on property of any kind belonging to the Commonwealth, nor
shall the Commonwealth impose any tax on property of any kind belonging to a State." The
Attorney-General says that the rails in question are property of the State of New South
40 Wales, that duties of Customs are a tax on property, and that the rails are therefore exempt.
The defendant answers that duties of Customs are not a tax imposed on property in the
sense in which those words are used in that section, and, further, that the section applies
only to property already within the limits of the Commonwealth, and not to goods in
process of coming within those limits.
45 END QUOTE
And

5 CLR 818 (23 May 1908)
QUOTE
There are, however, difficulties in the way of implying any such limitation upon the terms
5 of sec. 114, just as there are (as was pointed out in the Federated Amalgamated
Government Railway and Tramway Service Association v. New South Wales Railway
Traffic Employés Association[3]) in the way of saying that any function which a Sovereign
Government assumes to exercise within the limits of its powers is not an ordinary function
of government. But, even with this limitation, the prohibition of the section would extend to
10 duties upon goods imported for the purposes of government departments, such as the Public
Works and Education Departments, the Printing Office, Gaols, Police, Asylums, and many
others, and this, whether the goods were directly imported into the State itself or through
another State, as for instance, through Port Pirie in South Australia in transit to Broken Hill
in New South Wales, or through Brisbane in Queensland in transit to the Northern Districts
15 of New South Wales.
END QUOTE
And
5 CLR 818 (23 May 1908)
20 QUOTE
Are then the words of sec. 114 capable of two constructions? There is no doubt that in
some contexts the words "impose any tax" might be capable of application to duties of
Customs. Nor is there any doubt that the word "taxation" in sec. 51 (II.) includes the
levying of duties of Customs. But these duties are nowhere in the Constitution described as
25 a "tax," unless the use of the word "taxation" in sec. 51 (I.) is such a description of them;
nor is the levying of them ever spoken of as the imposition of a tax on property. Sec. 86
speaks of "the collection and control of duties of Customs and of Excise." Secs. 88, 89, 90,
92, 93, 94, 95, all speak of the "imposition" of duties of Customs. Such duties are imposed
in respect of "goods" and in one sense, no doubt, "upon" goods, which is only another way
30 of saying that the word "upon" is sometimes used as synonymous with "in respect of." In
the same way the word "upon" or "on" is used colloquially in speaking of stamp duties,
succession duties, and other forms of indirect taxation, as taxes on deeds, &c., or on real
and personal property. Yet it is recognized that these forms of taxation are not really
taxation upon property but upon operations or movements of property.
35 END QUOTE
And
5 CLR 818 (23 May 1908)
QUOTE
40 So far there seems no reason to suppose that the word "tax" was used, inexactly, in sec. 114
to denote duties of Customs.
The distinction between direct and indirect taxation is well enough known. Direct taxation
is taxation by way of pecuniary payments directly imposed in respect of persons or things
subject to the jurisdiction of the taxing authority, and the burden of which is designed to
45 fall upon the taxpayer himself. Such taxes in respect of things are frequently, and not
inaccurately, called property taxes, or taxes "on" property. Common instances are land tax
and municipal rates. Similar taxes levied ad valorem upon the value of personal property
were for many years imposed in New Zealand and in many of the States of the American
Union.
50 END QUOTE
And

5 CLR 818 (23 May 1908)
QUOTE
Again, the words "property belonging to the Commonwealth," "property belonging to a
5 State," seem, primâ facie, to import property lying and being within the Commonwealth.
Neither the Commonwealth nor a State can impose a tax upon property which is not within
the geographical limits of its jurisdiction. Even if they can impose a tax upon a resident in
respect of property situated elsewhere, such a tax is a personal tax, and cannot be properly
regarded as a tax upon his property. It was contended, however, that duties of Customs are
10 a tax upon property within the Commonwealth, since the goods must have been imported
before the liability to duty can arise. But this, although true in one sense, is not true in any
relevant sense. The payment of the Customs duty is an obligation or condition which must
be fulfilled before the goods can lawfully form part of the stock or mass of goods in the
country, although for convenience they are allowed to be retained in bond in a King's
15 warehouse until payment. Adapting the words of Chief Justice Taney, cited in Perkin's
Case[10], I say that a Customs law from this point of view is nothing more than an exercise
of the power the Commonwealth possesses of regulating the manner and terms on which
goods may be brought into the Commonwealth.
For these reasons I am of opinion that the levying of duties of Customs on importation is
20 not the imposition of a tax upon property within the primary and literal meaning of sec.
114, standing alone. I am further of opinion that, even if it is an imposition of a tax on
property within the primary and literal meaning of that section, yet that meaning is not the
only or the necessary meaning, and that, for the reasons already given, it must be rejected
as being inconsistent with other plain provisions of the Constitution. I think, therefore, that
25 sec. 114 does not apply to duties of Customs. This was the view taken by Stephen Acting
C.J. in the case of Attorney-General v. Collector of Customs[11].
END QUOTE
And
30 5 CLR 818 (23 May 1908)
QUOTE
It was contended that the importation of railway material from beyond the
Commonwealth is, or may be (as to which the State is the sole judge), necessary for
the efficient construction and carrying on of State railways, and that the imposition of
35 duties of Customs upon such importation is consequently a control of, or interference
with, a State function. This argument, if valid, applies, as already pointed out, to all
goods which any State may think fit to import into any part of the Commonwealth for
the purposes of any department of the State.
The doctrine relied upon is, as has several times been pointed out by this Court, a rule of
40 construction founded upon necessity. In one aspect it is analogous to the rule that the
Crown is not bound by a Statute unless it appears on the face of the Statute that it was
intended that the Crown should be bound. The word "expressly," as used in the rule, does
not, of course, mean that the power to be interfered with must be mentioned eo nomine. If a
power conferred upon the Commonwealth in express terms is of such a nature that its
45 effective exercise manifestly involves a control of some operation of a State
Government the doctrine has no application to that operation. Sec. 51 of the
Constitution confers upon the Parliament many powers of this nature, e.g., the power to
control quarantine (ix.), weights and measures (xv.), immigration (xxvii.). The power to
make laws respecting trade and commerce with other countries and among the States (i.) is
50 of the same kind, and necessarily involves the power to interfere with the operations of the
State Governments so far as to make effectual any condition or prohibition imposed by the
Commonwealth upon importation. Taxation by means of Customs duties is in law, as well
as in fact, a mode of regulating trade with other countries. It follows that it was the
intention of the legislature that the right of State Governments to import goods should be
subject to the control of the Commonwealth, so that the rule in D'Emden v. Pedder[15] has
no application.
5 END QUOTE
And
5 CLR 818 (23 May 1908)
QUOTE Barton J
10 With what approach to uniformity or consistency—the very
objects of their existence—could the express and exclusive
powers of the Australian union be exercised?
END QUOTE
And
15 Attorney-General of New South Wales v Collector of Customs (NSW) [1908] HCA 28; (1908)
5 CLR 818 (23 May 1908)
QUOTE Barton J
The following words in the judgment of the Supreme Court of the United States, spoken by
Brewer J., exactly apply. In a dual system of government, "There are certain matters
20 over which the national government has absolute control, and no action of the State
can interfere therewith, and there are others in which the State is supreme, and in
respect to them the national government is powerless": South Carolina v. United
States[20]. Where a grant of power is made, this leading principle dictates its scope. If the
grant is exclusive the control is absolute. Any action by the State, such as the attempted
25 importation of goods, without observance of the condition which the grantee of the absolute
control has imposed, is itself an interference with the exercise of the control. In this case
the condition is the payment of the duty prescribed.
Further, I am of opinion that the State has not made out its claim to have these rails
considered an instrument of its governing functions. It cannot be contended that the
30 Government of New South Wales has any extra-territorial powers.
END QUOTE
And
5 CLR 818 (23 May 1908)
35 QUOTE Barton J
Now as to sec. 114 of the Constitution. I must first guard myself against being supposed to
agree with Mr. Pilcher that the prohibition applies only to property of Commonwealth or
State which is a means or agency of Government as ordinarily understood. That position
may be correct. On the other hand, it may be that the framers of the Constitution
40 intended to protect all such property as either power might have or acquire, whether
used or not in the ordinary essential functions of Government. There is this difficulty in
the way of that construction. As their respective Constitutions stand it is open to the States
to acquire and hold property for purposes without number.
END QUOTE
45 And
5 CLR 818 (23 May 1908)
QUOTE Barton J
Although the Customs duty may be in fact imposed "on" the article itself, as contended on
50 an elaborate analysis of the judgment of Marshall C.J. in Brown v. Maryland[21], and
although the goods which pass the Customs after entry may be "property," yet it is not
usual to call a duty of Customs a tax on property, or indeed to call a tax on property a
duty of Customs, when one finds either term standing by itself in a document. But
when one finds the two terms in the same document he is the less likely to use them
interchangeably, unless indeed he finds them so used in the context, or unless the
context supplies some other good reason for inferring a looseness of expression.
5 END QUOTE
And
5 CLR 818 (23 May 1908)
QUOTE O'Connor J
10 But before the principle can be applied we must ascertain by a consideration of the
Constitution as a whole the extent of the Commonwealth power to impose duties on
importation. In this connection must be borne in mind the maxim referred to in the
judgment in D'Emden v. Pedder[29]:— "It is only necessary to mention the maxim, quando
lex aliquid concedit, concedere videtur et illud sine quo res ipsa valere non potest. In other
15 words, where any power or control is expressly granted, there is included in the grant,
to the full extent of the capacity of the grantor, and without special mention, every
power and every control the denial of which would render the grant itself ineffective."
The power to levy duties of Customs is conferred by two sub-sections of sec. 51 of the
Constitution. It is included in the word "Taxation" in sub-sec. (II.), construing that word in
20 its widest sense. It is also an exercise of the power to make laws relating to trade and
commerce with other countries (sub-sec. (I.)). The language of these sub-sections is
certainly wide enough to cover the imposition of duties on the property of a State even on
property necessary for the carrying out of the governmental functions of a State.
END QUOTE
25 .
No need to quote further parts as to merely make clear that the Hansard transcript itself made
clear that Section 114 “Barton J;, “has no reference to Customs duties.”.
.
We have however also to consider the statement;
30 .
QUOTE
With what approach to uniformity or consistency—the very objects of their
existence—could the express and exclusive powers of the Australian union be
exercised?
35 END QUOTE
.
As the Court made clear, and so did the Framers of the Constitution, there must be a consistency
of law. It must be uniform. And as the Court expressed also, to allow the States to import would
undermine the Commonwealth powers of Trade and commerce as the States then could do it in a
40 cheaper manner to obtain items from overseas avoiding Customs duties.
.
QUOTE
Mr. GLYNN: I think the last few words of this clause are too comprehensive in their
45 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.
50 END QUOTE
.

The Commonwealth may very well as some stage exercise its taxation powers to provide uniform
land taxes throughout the Commonwealth and then while it could not tax land held by a State for
Government purposes, as made clear land leased out could be taxed!
Likewise the reverse is applicable that the Commonwealth cannot as “sovereign” of State land
5 use it for non Commonwealth purposes and then by this undermine the state in their taxes
regarding commercial properties. Hence, Section 114 can only be applied regarding the raises of
taxes involving “properties” (meaning land) that are held in right of “sovereign” by either the
Commonwealth or a State and only where it is being used for the purpose of Government
functions.
10 Hence “Australian Post offices” that have been leased out for private enterprise to subcontract
the running of Australian Post therefore no longer can be deemed tax exempt as they are not pure
Commonwealth properties, regardless if they are held as “sovereign” by the Commonwealth as
they are used for commercial purposes.
What we have however is that the Commonwealth has made a mixture of usage of its land
15 holdings to use it for Commonwealth purposes and other purposes and I view Section 114 only
was intended to apply for land holdings that were strictly used for Commonwealth purposes.
More over, the Commonwealth can’t exclude State Governments from any form of taxation other
then tax on properties (Section 114) as it must have a uniform legislation.
Where there is a mixed usage then as long as the commonwealth is the “PROPRIETOR” and
20 not the “SOVEREIGN” then to the extend the property is leased it can be taxed. As such, if the
commonwealth were to use say 40% of the time the property and 60% of the time has it leased
out to private companies then it can be taxed for the 60%. Likewise if the commonwealth were to
lease out say 75% percent of the property then 75% of the property can be taxed.
It means that unless GST is applicable to State Governments and their Departments also the GST
25 is for this also unconstitutional.
.
As was made clear by Barton J,
QUOTE
“. On the other hand, it may be that the framers of the Constitution intended”
30 END QUOTE
.
And as was made clear by O'Connor J.
5 CLR 818 (23 May 1908)
35 QUOTE O'Connor J
The control of trade and commerce with other countries, the imposition of Customs duties,
immigration, quarantine, and external affairs, are all different aspects of Australia's
relations with other countries. The manifold and varied activities which are recognized as
functions of the State in Australia were well known to the framers of the Constitution, and
40 it cannot be supposed that it was intended that the Commonwealth control of Australia's
relations with other countries should be subject to the exception that it should have no
operation in so far as State Governments in the exercise of their governmental functions
were concerned.
END QUOTE
45 And. stated;
5 CLR 818 (23 May 1908)
QUOTE Isaacs J.
This would not merely leave to the several States the same power over the introduction of
50 goods into Australia, which they had before Federation, but would vastly increase it,
because the owners of goods never previously had the right which they now have of
crossing State lines with their merchandise free of duty. This is a result certainly not to be
courted, and is in clear antagonism to the primary intention of the Constitution gathered
from the grant of exclusive powers over foreign commerce, and over that class of taxation
which is inseparable from its effectual regulation. It could scarcely have been the object of
the framers of the Constitution to render it so easily and mortally vulnerable.
5 END QUOTE.
.
5 CLR 818 (23 May 1908)
QUOTE Higgins J
10 The case for the State has been well put and forcibly, mainly on the grounds (1) that,
according to the principles laid down by this Court in D'Emden v. Pedder[39] and in
subsequent cases, the State agencies and functions are exempt from federal taxation;
and[40] that by sec. 114 of the Constitution the Commonwealth is forbidden to tax the
property of the State.
15 The first ground may be put into something like a syllogism:—The Commonwealth cannot
tax a State Government function; D'Emden v. Pedder[41]; Railway Traffic Employés
Association Case[42]; South Carolina v. United States[43]. The railways are a State
Government function; Railway Traffic Employés Association Case[44]. Therefore, the
Commonwealth cannot tax the railways.
20 These steel rails were the property of the New South Wales Government, and were being
imported for the purposes of the New South Wales government railways.
As to this first ground, the argument for the plaintiff is wholly founded on certain doctrines
adopted, and certain expressions used, by this Court in previous decisions. But for these
doctrines and expressions I should not, personally, feel any difficulty with regard to the
25 first ground. If it were open to me to do so, I confess I should like to reconsider the
doctrine, or the limits of the doctrine, that there is to be implied from the Constitution any
such prohibition of taxation as is asserted in D'Emden v. Pedder[45] and in the subsequent
cases; and I should also like to reconsider the doctrine that the railways are a State
governmental function—I mean, a strictly governmental function, in the same sense as the
30 legislature, the executive and the judiciary are governmental functions. I am emboldened to
express my doubt as to these doctrines because the Privy Council by its Judicial Committee
has condemned the former doctrine. But I bow to the opinion of the majority of my learned
colleagues, both as to these doctrines themselves, and as to the further doctrine that the
Privy Council is in an appeal from the High Court "bound to accept and follow" the
35 decision of the High Court with regard to a constitutional point of the nature referred to in
sec. 74 of the Constitution: see Baxter v. Commissioners of Taxation (N.S.W.)[46]. My
judgment in this case, therefore, must assume that these doctrines are, in their application
hitherto, unimpeachable. But the doctrine as to the exemption of State agencies from
Commonwealth taxation has never yet been applied to Customs taxation, taxation of the act
40 of importation, as distinguished from internal taxation. It has never yet been applied so as
to make an exception to the exclusive and paramount power of the Commonwealth
Parliament to make laws with respect to trade and commerce with other countries, and with
respect to Customs taxation (sec. 51 (I.) (II.); sec. 90). For the reasons which I have stated
in The King v. Sutton[47] I regard the doctrine as to the King not being bound save by
45 express words, as being inapplicable as between the States and the Commonwealth, at all
events in the exercise of an exclusive power of the Commonwealth; and I regard State laws
and State powers in respect of the railways as subordinated to the Commonwealth powers
with regard to trade and commerce, and with regard to Customs taxation.
But the interpretation of sec. 114 of the Constitution raises another difficulty. The section
50 itself mixes up two distinct subjects. It forbids a State to raise a naval or military force
without the consent of the Commonwealth Parliament; and it forbids a State to impose a tax
on property of any kind belonging to the Commonwealth. Then, apparently, it occurred to
the draughtsman that a similar prohibition should be inserted against the Commonwealth
taxing State property. The prohibition as to State taxation was, no doubt, suggested by the
British North America Act, sec. 125. But by substituting the word "property" for "lands or
property," the intention—if it was the intention—to confine the prohibition to what are
5 known as "property taxes" has been somewhat obscured. Property is, by the Constitution,
subject to be taxed at the instance of the State as well as of the Commonwealth; Customs
taxation is solely a matter for the Commonwealth (sec. 90). Taxes of retaliation, as between
the States and the Commonwealth, are possible as to property taxes; but are impossible as
to Customs taxes. But whatever may have been the motive which led to this express
10 prohibition, in addition to the prohibition which this Court has held to be implied from the
nature of the Constitution as to the taxation of State or Commonwealth agents, the
phraseology is such as to point to taxation of property as property as being the subject of
this express prohibition. "A State shall not, without the consent of the Parliament or the
Commonwealth, ... impose any tax on property of any kind belonging to the
15 Commonwealth, nor shall the Commonwealth impose any tax on property of any kind
belonging to a State." But is a Customs tax a tax on property as such?
END QUOTE
And
20 5 CLR 818 (23 May 1908)
QUOTE Higgins J.
However, the fact that sec. 114 uses the mere word "tax"—not "tax of any kind," although
it speaks of "property of any kind"—strengthens the view that the framers of the section
could not have had Customs duties in their minds at the time. They lay the emphasis on the
25 thought on ownership—"property of any kind belonging," &c.
I have based my reasoning on the words and the scheme of our own Australian
Constitution.
END QUOTE
.
30 When we look back then we see the following;
.
QUOTE
Clause 106.-A State shall not, without the consent of the Parliament of the
35 Commonwealth, impose tonnage dues or raise or maintain any military or naval force, or
impose any tax on property of any kind belonging to the Commonwealth; nor shall the
Commonwealth impose any tax on property of any kind belonging to a State.
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
40 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
45 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.
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.
5 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
10 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.
15 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?
20 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
25 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.
30 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
35 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.
40 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 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
5 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
10 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
15 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:
20 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
25 in the province of the Commonwealth to past; it-was 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
30 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
35 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
40 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.
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.
5 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:
10 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,
15 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
20 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
25 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
30 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.
35 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
40 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?
Mr. BARTON: Any mere service that the Commonwealth does not take over is still in
5 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
10 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.
Sir GEORGE TURNER: I am glad that my hon. friend, after consideration, has taken
this view, because it is very difficult indeed to understand what these words refer to and
15 what effect they would have upon harbor trusts and similar bodies. But, as the other clauses
appears to be sufficient to prevent any injustice being done, and in order to remove any
doubt as to what the words really mean, it will be well to strike these out.
Amendment agreed to.

END QUOTE
20 .
Now what is well overdue is that the Commonwealth start raising taxes in a uniform manner and
not let its own former politicians and others off the hook by having tax free incomes as by doing
so it does invalidate it own taxation legislation. It must be uniform!
.
QUOTE Mr. REID.-
But do not let us forget that under the state arrangement of such matters there are
scores of systems which can be carried out, but under the federal jurisdiction the
source of the revenue for these old-age pensions will be strictly limited to Customs or
30 direct taxation. There is no power in the Federal Parliament to carry out ideas which
have been suggested with great force in the different colonies that these pensions
should be derived by a certain system of licences on places of popular entertainment-
taxes on admissions to theatres and race-courses.
END QUOTE
35 .
QUOTE
Clause 54.-It shall not be lawful for the States Assembly or the House of
Representatives to pass any vote, resolution, or law for the appropriation of any part
40 of the public revenue, or of the produce of any tax or impost, to any purpose which
has not been first recommended to that House by message of the Governor-General in
the Session in which the vote, resolution, or law is proposed.
Mr. REID: I think we should make it quite clear if it is really to be provided that Money
Bills, Bills appropriating revenue, or the produce of any tax or impost, are to be introduced
45 in the Senate.

Mr. BARTON: Perhaps my hon. friend will allow me to explain this clause. This was
inserted in consequence of the carriage of an amendment in the Constitutional Committee,
as you will no doubt remember, sir. Instead of the clause relating to Bills appropriating
public money, it was altered so as to refer to Bills having for their main object the
5 appropriation of public money. The result was that, as a different class of Bills would be
introduced into the Senate, it was thought necessary that a message must also be addressed
to the Senate. It is desirable that these words should be retained; otherwise it would be
possible for the Senate, or any members of the Senate, to initiate Bills dealing in a very
large measure with the financial policy of the Government, notwithstanding that they might
10 deal first with matters of policy, and incidentally only with matters of appropriation. It
would be possible for them to deal with them without any message, and to my mind it is
necessary that there should be a conservation of the powers of the Executive in this matter,
and therefore it should rest with the Executive alone to bring down a message. For that
reason I am quite sure hon. members will agree that this provision should be retained.
15 Mr. KINGSTON: Would it not be well to alter this section to make it correspond with
section 52 in its altered form Clause 52 we have extended to apply to the appropriation
of public money from whatever source derived, including loan funds. I think that a
similar extension should be made in the provisions of section 54, so as to harmonise the
two. As one section has been extended I suggest that the other should be extended.
20 Mr. ISAACS: I would draw hon. members' attention to that and one or two other things
in connection with this clause. The insertion of the word "moneys" has occurred since we
have been sitting in this Committee. I would [start page 612] like to call attention to the
necessity of making the language uniform throughout these sections. In clause 52
undoubtedly it will be public revenue or moneys, but it does not add the expression "or of
25 the produce of any tax or impost." While that is being done I would also draw attention to
clause 79. The expression there is "one consolidated revenue fund." Now that seems to be
the term which is most in consonance with our colonial Constitutions, and Mr. Barton
might consider the advisability of having one uniform expression which would comprehend
the necessary term in all these clauses.
30 END QUOTE
.
Constitution
QUOTE
81 Consolidated Revenue Fund
35 All revenues or moneys raised or received by the Executive
Government of the Commonwealth shall form one Consolidated
Revenue Fund, to be appropriated for the purposes of the
Commonwealth in the manner and subject to the charges and
liabilities imposed by this Constitution.
40
82 Expenditure charged thereon
The costs, charges, and expenses incident to the collection,
management, and receipt of the Consolidated Revenue Fund shall
form the first charge thereon; and the revenue of the
45 Commonwealth shall in the first instance be applied to the payment
of the expenditure of the Commonwealth.
83 Money to be appropriated by law

No money shall be drawn from the Treasury of the Commonwealth
50 except under appropriation made by law.
But until the expiration of one month after the first meeting of the
Parliament the Governor-General in Council may draw from the
Treasury and expend such moneys as may be necessary for the
maintenance of any department transferred to the Commonwealth
and for the holding of the first elections for the Parliament.
END QUOTE
.
5 We find however that child support, a Debt to the Commonwealth nevertheless somehow is not
held to be part of Consolidated Revenue, despite it being a public policy matter. Yet, overdue
charges applied to child support payments that are overdue is part of Consolidated Revenue.
We also seem to have all kinds of funds created, including the 2 billion dollars Telstra funds, this
even so there is only “one Consolidated Revenue” fund. We seem to have some “FUTURE
10 FUND” even so again there should only be one Consolidated Revenue fund.
We also find that tax concessions are given as some form of “payment” to people and this to me
is a “de facto Appropriation Bill” and cannot be accepted as being constitutionally permissible.
Neither can the payment of monies through tax deductions for religious enterprises be deemed
constitutionally permissible. Yet, the former Treasurer Peter Costello opened the flood gates by
15 providing about 2½ million dollars for the restoration of a Church and this means that if in time
Muslims or other religious bodies were to take over the running of the Commonwealth then they
can build whatever religious building they desire at tax payers expenses throughout the
commonwealth because the High Court of Australia (Wilson J) in its 1981 ill conceived
judgment seemed then already to approve this kind of unconstitutional conduct.
20 No doubt the so called Christian religions may then complain about this but they should keep in
mind that they rorted the tax system for so long and if then some other religion use their system
then who are they to complain?
If it were to be held that the payment to the Queen can be deemed a purported Queen of
Australia, then why not any of the queens walking down the streets in the Mardi Grass parade in
25 Sydney’s annual festival?
.
Because the constitution is part of The Commonwealth of Australia Constitution Act 1900 (UK)
the reference to “Queen” therefore relates to the Monarch referred to in this The Commonwealth
of Australia Constitution Act 1900 (UK) and no other.
30 .
Any Minister and/or Governor-General who therefore is taking and/or accepting a salary directly
from the Consolidated Revenue in my view is a criminal who is robbing the tax payers as there is
no constitutional powers for this as only the queen as provided for in The Commonwealth of
Australia Constitution Act 1900 (UK) can be deemed to be the appropriate person to provide for
35 salaries. Hence all the so called fringe benefits former federal politicians/ministers and ex-
Governor-Generals are obtaining I view is unconstitutional and should be demanded to be repaid.
Likewise so the unconstitutional superannuation scheme operating within the Commonwealth.
.
Again; EITHER WE HAVE A CONSTITUTION OR WE DON’T!
40 .
Those in Government/Parliament must understand they cannot have the cake and eat it. If they
seek to exercise power by virtue of constitutional rights then they can only do so if they
themselves first of all abide by constitutional provisions and limitations.
As I have so often stated what we need is an OFFICE OF THE GUARDIAN, a constitutional
45 council, that advises the Government, the People, the Parliament and the Courts as to
constitutional powers and limitations without any political bias.
.
QUOTE
15.20 In Canada prices are given as the amount `plus GST' with the total transaction broken into
50 these components, given on the receipt. This allows consumers to understand the effects of
the GST on the price they pay, and to calculate the tax burden they are incurring. The UK
system is more arbitrary, with some large chains giving a price breakdown receipt to travellers.
END QUOTE
.

Clearly the last statement relates to the end user paying it and not to a “supply” charge for
businesses, which varies pending what they claim and so can artificially alter the GST they have
to pay to the ATO, regardless of how much they themselves actually collected in GST.
The following media publication is a clear example how the system can be manipulated.
5 QUOTE
http://au.news.yahoo.com/071019/2/14pxk.html
NSW man accused of $200,000 GST scam
10 Friday October 19, 07:37 PM
NSW man accused of $200,000 GST scam

A Sydney man used 21 Australian business numbers to scam more than $200,000 from the
government in less than a year, the Australian Federal Police (AFP) say.
The Rockdale man, 31, is also alleged to have attempted to obtain a further $195,033 in
15 goods and services tax refunds.
Police said he was arrested after an investigation revealed the theft of $200,584 from the
commonwealth through fraudulent goods and services tax refund claims.
False claims submitted to the Australian tax office began in January this year, they said.
"The charges come after an extensive operation requiring high-level cooperation between
20 the state and commonwealth agencies," AFP agent Warren Gray said.
END QUOTE
.
QUOTE
15.14 On the other hand, the Road Transport Forum claims in its submission, that the
25 Australian road transport industry is highly competitive and believes that there can be
little doubt that cost savings attributable to the GST Package will be passed on. The
Road Transport Forum has every confidence that with the reforms in the tax package, the
same pattern will emerge as with the Iraqi oil crisis when road transport costs first rose very
quickly as international fuel prices rose, and then fell equally quickly when international
30 fuel prices settled down again.
15.15 ACA submits that while higher prices may be influenced in part by transportation
costs, the extent to which the Government's proposal to reduce fuel taxes could lead to
savings on food by consumers in remote areas is a matter of great debate. ACA also
expressed concerns that savings will not be passed onto consumers, especially in remote
35 areas where there is little competition between transport companies.
END QUOTE
.
Again, we see that it relates to “consumers” and that the GST can or cannot be passed on in
totality. Meaning that there is no control upon how much any business were to charge on GST.
40 Letting businesses decide how much taxation they will or will not charge means that they and not
the ATO enforces taxation laws, as they please. And, therefore if a business actually inflated the
price by more then 10% without applying any reduction in cost then it will be shown that in the
end the “consumer” has no avail to get redress as the ATO already is refusing (in my case) to
refund over charged GST! It means that overcharged GST either did or didn’t make it into the
45 Consolidated Revenue and then who on earth is responsible to pay back overcharged GST?
The ATO in its correspondence has acknowledged it has no records of what a person pay on
GST, and therefore the question then ought to be raised who has the overcharged GST? If for
example a customer seeks a refund for faulty goods, after the business already has just completed
its taxation material for the ATO and has paid whatever GST was deemed payable then where is
the refund of GST coming from? Surely the business has no Constitutional Powers to take it out
of Consolidated Revenue and neither can the business refund GST already paid on to the ATO.
Neither can the business deduct GST from GST liabilities it later incurs as it is a separate matter.
As such the GST system or better to state the non-system is full of pitfalls that still has not been
5 appropriately attended to.
QUOTE
Chapter 15
Other Issues
10 Pricing and Profit Margins
15.1 The Government asserts that the tax reform package is expected to deliver substantial
long-term improvements in the operation of the economy, to the benefit of all Australians.
In the short-term, the package might be expected to have transitional effects upon both
demand (particularly its pattern) and prices.
15 15.2 The pattern of demand in the economy is likely to change in the period immediately
preceding and following the introduction of the tax reform package. The Government
argues that the overall effects on economic activity during this period are likely to be small
and dominated by the fiscal stimulus inherent in the package.
15.3 The Government asserts that on average across the economy as a whole the price level
20 is expected to be broadly unchanged with a one-off rise in the overall prices of investment
and export goods and services. The ANTS package argues that these relative price changes
must be allowed to occur to bring about the more efficient allocation of resources flowing
from the indirect tax system. On this basis the Government argues that the introduction of a
GST is unlikely to lead to an increase in inflationary expectations and on-going inflation.
25 [1]
Prices and the Tax Package
15.4 Shop, Distributive & Allied Employees' Association (SDA) contends that a number of
assumptions were made in the government's ANTS document which are highly
questionable. These assumptions are :
30  The estimate “……assume(s) that the abolition of the wholesale sales tax would be
passed through fully to consumers in the form of lower prices.
 “Similarly, it is assumed that lower transport costs due to cheaper diesel for road and
rail transport are passed through in lower prices for consumers. [2]
15.5 SDA quoted Colin Hargreaves, the Director of the Economic Modelling Bureau of
35 Australia, writing in the Financial Review on 7 December 1998 as saying:
…from our discussions with companies, it is clear that many of the cost reductions will not
be passed on to the consumer but the GST will, by its nature. This leads to a temporary
increase in corporate saving and a concomitant reduction in final demand.
With 50 per cent “pass on”, the fiscal stimulus to demand from the package becomes an
40 equally large contraction in final demand.
15.6 The Committee heard evidence from representatives of the Australian Council of
Social Services (ACOSS) whose concerns were on the likely effects of the GST on low
income households that mainly rely on government benefits for their income. Members of
the Committee queried as to whether the Melbourne Institute estimates, which ACOSS had
relied upon in their submission, assumed that 100% of the tax savings arising from
abolition of existing taxes on consumption would be passed on to consumers.
15.7 ACOSS in answer to this question on notice, noted that the Melbourne Institute
estimates assume that 100% of the reductions in tax due to the abolition of existing
5 consumption taxes are passed on to consumers. Notwithstanding this, calculations made by
ACOSS indicate that at least one million households would be worse off during at least the
first year of introduction of the GST. In reality as the full 100% in tax savings is unlikely to
be passed on to consumers, ACOSS envisaged that low income household will face even
higher average price increases, especially in the first few years.
10 15.8 Arthur Andersen, as an adviser to many businesses (including government owned

businesses) with varied and diverse interests, submit that the legislative framework for tax
reform must seek to achieve the highest level of integrity and its implementation should be
equitable and practical for business and the wider community.
15.9 Arthur Andersen expressed concern that the Government's expectations, enforced
15 through the new powers proposed for the Australian Competition and Consumer
Commission (“ACCC”), will put business in a position where it is artificially forced to
reduce prices (before the GST effect) without any commercial justification.
15.10 Arthur Andersen submitted :

We support and encourage the Government's attempts to ensure that realised cost
20 reductions from tax reform are, in fact, passed on as price reductions for goods and
services, but we are concerned that penalty measures may be applied in circumstances
where those cost reductions are not in fact forthcoming or where business simply cannot
identify, and quantify those reductions. In circumstances other than blatant price
exploitation, we submit it is not appropriate to penalise business by directly or indirectly
25 enforcing unsupported price reductions. This aspect of the transition process is, we feel,
underestimated. The impact of GST on regulated prices, the timing of realisation,
recognition and quantification of cost reductions along with the recognition of the
additional costs flowing from the implementation of the GST will put business under severe
strain in coming years. [3]
30 15.11 Australian Consumers' Association (ACA), an independent not-for-profit, non-party-

political organisation established to provide consumers with information and advice on
goods, services, health and personal finances, believes that the major goal for any tax
system is to redistribute wealth in a way that is equitable, sustainable and efficient. ACA
noted that the greatest strength of the proposed tax package is its ability to deliver improved
35 simplicity within the system. However, ACA submits :
By removing the multi-levelled WST which currently varies from state to state and
replacing this with a flat rate of GST, structural and compliance efficiencies are easily
addressed. Unfortunately, failing to require the disclosure of GST at the point of sale or per
transaction means that the government has not addressed the issue of transparency. [4]
40 15.12 ACA acknowledged that it is difficult to predict the change in our inflation rate due
solely to the introduction of a GST. ACA also expressed serious concerns about the effects
on pricing of the new package. These concerns are based on a serious lack of competition
in some areas of the economy.
The failure of the government model to consider transaction costs further complicates the
45 prediction of the effect on prices. In order to determine the amount of GST to be paid,

businesses will have additional costs such as record keeping, staff training and the possible
addition of new software. These initial and ongoing costs will be passed onto consumers,
increasing the price impact of the GST. [5]
The effect of competition
5 15.13 Minimising the impact of the GST on prices requires highly competitive markets to
ensure the costs involved are not inflated or unnecessarily passed on to consumers. Under
the government's assumptions all markets are perfectly competitive, thus the price impact is
minimal. Unfortunately not all markets are perfectly competitive. Throughout its research,
ACA is repeatedly encountering markets where competition is lacking. In these markets,
10 ACA noted that the price impact will be higher because competition will not ensure that
costs are absorbed.
15.14 On the other hand, the Road Transport Forum claims in its submission, that the
Australian road transport industry is highly competitive and believes that there can be little
doubt that cost savings attributable to the GST Package will be passed on. The Road
15 Transport Forum has every confidence that with the reforms in the tax package, the same
pattern will emerge as with the Iraqi oil crisis when road transport costs first rose very
quickly as international fuel prices rose, and then fell equally quickly when international
fuel prices settled down again.
15.15 ACA submits that while higher prices may be influenced in part by transportation
20 costs, the extent to which the Government's proposal to reduce fuel taxes could lead to
savings on food by consumers in remote areas is a matter of great debate. ACA also
expressed concerns that savings will not be passed onto consumers, especially in remote
areas where there is little competition between transport companies.
15.16 The results of a recent supermarket survey commissioned by Life. Be In It were also
25 quoted by ACA as an area of concern especially with regard to higher food prices in areas
with less competition. The Centre for Media Research and Community Opinion found in
August/September 1998 a 9% cost difference on grocery items between markets where a
discount supermarket was present and where it was not. Further, there was a 16% cost
difference for fresh produce on the same basis. The difference between stores within a
30 supermarket chain was found to be as high as 31%. [6]
15.17 In assessing these results, ACA is of the view that inequity in pricing is going to be
further compounded by a GST on food. It suggests that not only are there areas with less
competition where consumers are paying more for food items, but they are also paying
more tax.
35 The `cascade effect'.
15.18 The government has argued that the current system for collecting indirect taxation
revenue is structurally inefficient. The wholesale nature of indirect taxation tends to
increase prices by more than the amount of tax collected. This is sometimes described as a
`cascade effect'. ACA fears that not only will a 'cascade effect' of this type continue to
40 occur under the new tax regime, because of the use of a value added tax to implement a
goods and services tax, but that price adjustments will be made on the inflated retail price,
rather than the wholesale cost.
15.19 ACA encourages the government to :

 Adopt consumer education campaigns and introduce easy access to complaints
45 mechanisms as part of the ACCC's role in formal retail price monitoring. The
inflationary effect of the new tax system is the subject of much debate, and there will
be some areas that require additional surveillance where competition is lacking.
ACA's recommendations for particular areas with unique competition concerns are :
a) monitoring of both aggressive competition in some areas and monopolistic practices in

other areas of the retail food industry.
5 b) a price monitoring role for the Commonwealth Department of Health and Family
Services in the health area, for example using Medicare statistics already calculated.
 The inclusion of the GST at any point of price disclosure to ensure greater
understanding of the individual consumers' tax burden. Full disclosure of the GST
also helps to counter cascading prices that can occur as a result of a value added
10 method of tax collection. ACA has urged the government to improve the level of
disclosure by legislating that prices must be given with the GST òn top'. This will
improve the transparency of the tax and make price monitoring simpler.
 Replace the value added system with a retail only consumption tax.
15.20 In Canada prices are given as the amount `plus GST' with the total transaction broken
15 into these components, given on the receipt. This allows consumers to understand the
effects of the GST on the price they pay, and to calculate the tax burden they are incurring.
The UK system is more arbitrary, with some large chains giving a price breakdown receipt
to travellers.
15.21 The Committee heard evidence from ACCC in relation to its role in price
20 surveillance for the GST to ensure that the anticipated net reduction in price is passed on to
consumers. It would appear that pending the passage of the legislation that is currently in
the House, ACCC is positioning itself to preparing guidelines for industry, with industry,
and to educate industry as to its compliance obligations under the new regime.
15.22 The Committee also heard evidence about the limited legislated powers and
25 resources which ACCC currently has to contend with in conducting its operations. ACCC
advised that it relies on policy instruments such as :
 the Trade Practices Act which prohibits a number of forms of behaviour such as
collusion;
 the Prices Surveillance Act which has limited application in most industries; and
30  various guidelines which have status in court
in monitoring prices set in the marketplace. ACCC has argued that the very presence of the
powers of the ACCC and the fact that ACCC exists and that people are aware of ACCC's
powers, is inducement enough for people to do the right thing in relation to pricing.
15.23 The point was made clear to the Committee that further work is imperative to ensure
35 that the ACCC is empowered according to the proposed legislation, to monitor the
behaviour and behaviour patterns of industries with the introduction of the GST. The
Committee expressed some reservation with relying on the notion of market forces
ensuring that perfect competition will result to ensure a 100% pass on of price reductions to
all consumers.

Cost of ATO Administration
15.24 The Commissioner of Taxation, Mr Michael Carmody, appeared before the
Committee on 26 March 1999. When he was questioned regarding the likely administration
costs for the GST, the following exchange took place:
5 Senator Gibson - In the Age on 11 February your Mr Rick Matthews is quoted with regard
to compliance costs. He said that the tax office expects it will cost 0.88 per cent of revenue,
about $300 million, to collect the GST. This compares with 1.47 per cent in New Zealand
and 2.55 per cent in Canada. Would you care to expand on why you believe our costs will
be lower than in New Zealand and Canada, and are those estimates correct?
10 Mr Carmody - You need to be careful with revenue, because rates vary and change the
amount of revenue. I point out that, in preparing for our administration, we have obviously
had the benefit of implementations around the world. We are doing it at a time when
electronic service delivery is much more viable. We are aiming to be the best at
administering that. Inevitably, for example, in the UK, which has a very complex set of
15 exemptions - not only zero rating but variations - their costs are significantly higher
because of that. Whether that is a universal rule, it comes down to that question of what
level of compliance and intrusiveness do you accept. [7]
Computer Leasing
15.25 Hitachi Data Systems Australia Pty Ltd (HDSA) is extremely concerned that certain
20 provisions of the Transition Bill as it currently stands, will have a highly detrimental impact
on HDSA and other companies in the computer leasing industry. HDSA's submission calls
on the Senate Select Committee to address the lack of adequate transitional provisions in
the GST Bills.
15.26 Computers and other goods that are currently subject to WST at the rate of 22% will
25 be significantly cheaper, particularly for businesses, once GST is implemented. This is due
to the fact that WST will be eliminated, and those businesses will be able to effectively
purchase the goods GST free by claiming an input credit in relation to the GST embedded
in the price of the goods.
15.27 HDSA is concerned that demand for IT equipment such as computers will fall
30 sharply prior to 1 July 2000, due to the significant incentive of savings on tax. These
savings, suggests HDSA, will compel buyers to defer purchases until after the GST comes
into effect. This would clearly disrupt trade in the lead up to the introduction of the GST.
15.28 HDSA propose two alternative methods of providing transitional relief to encourage
businesses not to delay purchases of capital equipment till after 1/7/2000:
35  Reduce the sales tax payable on capital goods from 22% to 12% from 1 July 1999.
This simple idea has been implemented for the brown goods industry (i.e. television,
stereo and video industry), whereby the Government has announced a reduction in the
rate of sales tax from 32% to 22% effective from the date when the GST Bill receives
Royal Assent.
40  Allow business input credits for the sales tax paid on equipment purchased prior to
the introduction of GST. The credit could be calculated on the basis of the proportion
of the useful life of the item that falls within the GST period. [8]

Joint Ventures
15.29 Ernst & Young provided evidence to the Committee on the impact of the proposed
GST on issues regarding the nature of joint ventures. The proposed GST makes allowance
for the joint registration of companies involved in a joint venture in limited circumstances.
5 The restrictive circumstances under which joint registration will be allowed under the
proposed GST, will result in many companies being precluded from benefiting from joint
registration and therefore face significant compliance costs associated with the GST. Ernst
and Young submit that all joint venture purposes be included within the GST joint
registration provisions from the commencement of the proposed GST.
10 15.30 Ernst & Young (EY), on behalf of their clients in joint ventures, noted that the
Australian economy benefits greatly when the expertise and resources of companies can be
pooled together in a joint venture. Division 51 of the GST Bill provides for joint
registration as a GST Joint Venture for some companies that are participating in joint
ventures for the exploration or exploitation of mineral deposits. Companies within a joint
15 venture but do not satisfy the registration requirement for a GST joint venture, must
apportion taxable supplies and creditable acquisitions and account for them individually.
EY submit that this is an unnecessary and unreasonable burden upon joint ventures.
15.31 A joint venture is not a separate legal person. However, EY recommends that it
makes more sense and reduces greatly the cost of compliance to the companies involved in
20 the joint venture, if for the purposes of GST Joint Venture registration, and for GST
compliance that the joint venture be treated under the new tax system as a separate and
individual taxpayer.
15.32 EY recommends that by treating a joint venture as a single taxpayer under the
proposed GST legislation, the total amount of GST payable to the Commissioner for
25 Taxation is not reduced, that the legislation as a package is not complicated or
compromised in any way and that the compliance costs, for the joint venturers individually
and for the joint venture as a whole, is greatly reduced.
15.33 EY indicated too that there should not be any discrimination of purpose when
granting registration as a GST Joint Venture to companies participating in joint ventures.
30 The same considerations that apply to joint ventures formed for the purpose of exploration
or exploitation of mineral deposits should be applied equally to all joint ventures.
15.34 The Committee heard evidence that foreign companies are precluded from being
members of joint ventures in Australia under the GST provisions, nor do the provisions
allow a joint venture participant to be a member of another GST group. EY asked the
35 Senate, through the Committee, to amend the registration requirements of the GST
legislation to allow more joint venture participants to be able to register as a group, to
remove the restriction on foreign entities.
Legal Services
15.35 The Law Council of Australia raised some of the more important aspects of the
40 goods and services tax that impact on the provision of legal services. The Council submit
that consideration should be given to the GST being recognised explicitly as an addition to
fees – rather than treated as a deduction from fees rendered. The major costs involved in the
provision of legal services are labour costs. Although the GST does not have direct
implications for PAYE salaries and wages, these costs will be affected in the legal
45 profession if the full cost of GST collected on legal fees cannot be passed on to purchases
of legal services. [9]

15.36 The GST is more easily viewed as applicable in the manufacturing sector where
value is added as goods pass through progressive stages of manufacture. In the professional
services sector (which includes lawyers, accountants and consultants), value is created
almost entirely by owners and employees using their knowledge, skills and experience in
5 the “production process”. Given the low level of non-labour input, the amount of GST that
most law firms will be able to offset from input tax credits will be very limited.
15.37 In the Council's view it is therefore necessary for legal firms to try to pass on most, if
not all, of the cost of the GST in the form of increased fees. However, there are a number of
factors that will limit the capacity of law firms to pass on the impact of the GST to
10 purchasers of legal services. These relate to fixed fee structure and fixed price contracts.
Legal practitioners undertake work for legal aid commissions, courts and other clients
where fees are fixed by regulation, determination and agreement. Unless governments,
courts and tribunals can be persuaded to accept charging of GST on top of fixed fee
formulas, legal practitioners will be disadvantaged by having to effectively bear the cost of
15 the tax from their own incomes.
Where fees are regulated by governments, courts and tribunals, specific action will be
necessary to increase fees to ensure that legal practitioners do not carry the burden of the
GST and that the incidence of the tax is passed on to the user. [10]
15.38 The Council also noted that unless the GST collected on legal services can be fully
20 passed through in increased fees, the tax will effectively reduce the incomes of owners and
staff of law firms. In this respect, the GST will amount to an additional income tax.
15.39 Some law firms rely for a significant amount of work on fixed price contracts with
certain “threshold” limits. For example, government contracts in NSW have a threshold of
$50,000 before public advertisement is required. Unless purchasers are prepared to increase
25 base contract prices, law firms will be disadvantaged as a result of :
 Reduced returns – having to pay the GST which was not previously payable
 Additional work to win tenders in a more competitive environment if thresholds are

not increased.
15.40 The Council recommends that government departments and agencies will need to
30 examine and increase contract thresholds to reflect the impact of the GST on the cost of
professional services, or specify the threshold exclusive of GST.
15.41 The Council is also concerned that the ACCC and other price surveillance authorities
may not be comfortable with the price of goods and services increasing by a full 10 per cent
on top of current prices – due to their lack of understanding of the cost structure of legal
35 (and other) professional service practices. It recommends that consideration should be
given to explicitly recognising the GST as an addition to the price of services rather than a
deduction from it.
15.42 Freehill Hollingdale & Page noted an instance whereby an offer was made by a third
party purchaser, but is only able to be accepted by the vendor during the period 1 January
40 2002 to 30 September 2002. The terms of the offer for sale of the property were agreed at
the time of the offer and no variation is possible without the express consent of the offeror.
In particular, the offer price is fixed and does not include any taxes which may be payable.
In the event that Freehill's client does not accept the offer during the agreed period, the
client is bound to enter into a long-term lease of the property with the offeror, the terms of

which have already been agreed and which are particularly unfavourable to the client. That
is, there is a deliberate commercial bias towards Freehill's client accepting the offer to sell.
15.43 Freehill submits that the Transition Bill will not apply in these circumstances as there
is only an offer, rather than a written contract, in existence prior to 1 July 2000. Therefore,
5 in accordance with the Main Bill, if the offer is accepted and the sale of the property takes
place, the vendor ( client) will be required to remit GST of one eleventh of the
consideration received, ie in the order of $9 million.
15.44 Freehill notes that this is a result that was not intended by the parties at the time they
entered the arrangement. GST was not publicly contemplated by the Government at that
10 time. As the Draft GST legislation currently stands, the client would not be able to pass the
GST liability on to the purchaser, thereby resulting in a reduced sales proceeds to the client
of almost $9 million.
15.45 Freehill submits that greater flexibility is needed in the transitional provisions for
GST to remove unintended consequences such as those outlined above, and request the
15 Committee to revisit the transitional provisions for GST and give serious consideration to
recommending amendments to these provisions.
Senator Peter Cook
Chairman
END QUOTE
20 .
QUOTE
Remember the GST was finally going to fix the TAX system?
The truth is that fixing the TAX system is far easier then politician are willing to admit to.
25 After all, if they were representing us they did not need 9 years to talk about it and end up –
despite the GST- to make it worse.
No good to blame people getting older as becoming a liability. After all, they paid their
taxes for old age!
30
Lets have a look at politicians; They spend 12 years in Parliament and have the rest of their
life superannuation, even if leaving Parliament at age 30!
Now, their payments are a lot more then that of the average pensioner. Just that Federal
Politicians actually haven’t got any constitutional entitlement to their form of
35 superannuation! After all, they are only allowed to get an “allowance” for the time they are
called away from their normal daily job to attend to the parliament, as a compensation for
lost income. Actually, the Governor-General neither is entitled to the superannuation
arrangement, or for that past Governor-General’s or any federal minister of the Crown, as
they were/are employed by the Monarch (the Queen) and it is the Monarch who is to pay
40 their superannuation, if the Monarch desires to do so!
You see, we could save a lot of taxes being collected, just by doing things appropriately
within constitutional limits!
Now, if you consider matters what is appropriately constitutionally, and get rid of all
45 unconstitutional Federal parliamentarians superanuation payouts, then we may save
billions!

See also my website http://www.schorel-hlavka.com for more constitutional issues. (Just it
takes time to download the page because of the volume of material on it.)
It doesn’t matter which political party is in power they all push the same con-job argument
5 to make it better for us, just that in the end they rob us more then the one before!
END QUOTE
.
SENATE WEDNESDAY, 17 AUGUST 2005
QUOTE ds170805-GST-ADVERTISING.pdf Senator WONG (South Australia) (11.13
10 am)—
We have seen the ‘Unchain my heart’ ads for the GST—which were not about information
but about arguing for a GST—which cost around $119 million. Then, just before the last
election, who could forget the Medicare ads? How many millions of dollars were spent on
the Medicare ads telling Australians how wonderful the government was going to make the
15 Medicare system? When the government was asked about this, what was its response? The
Prime Minister and various other ministers said that people were entitled to know what
their new entitlements were going to be under the changes. We now know that the rock
solid guarantee that was given in relation to Medicare is no longer rock solid; in fact, it
represents one of the most significant broken promises we have seen since the election—
20 Senator Allison—Like ‘no advertising’.
Senator WONG—I was about to say that, Senator Allison. That broken promise has
clearly changed the entitlements of the Australian consumers under Medicare. Do we see a
similar advertising campaign from the government saying: ‘By the way, you are not
entitled to as much as we told you’? Where is the campaign on that, Minister? We are not
25 going to see it, because it does not suit your political purposes. It is okay before an election
to spend a lot of taxpayers’ money on telling people what you are going to do for them.
Then, when you decide you are not going to do it for them, you do not spend any money
telling them that. You could at least be consistent. If your principle is to tell people what
they are entitled to, why aren’t you telling them what they are no longer entitled to because
30 you have broken a promise? The extent to which this government is prepared to raid
taxpayers’ funds for its own propaganda campaigns in a whole range of areas is a new low
in Australian political history.
END QUOTE ds170805-GST-ADVERTISING.pdf
.
35 * Isn’t that what you always have been saying about the advertising cost?
.
**#** Yes it is but also it is not within the Appropriation bills for ordinary annual revenue and
therefore I view cannot be paid for other then by Appropriation bills specifically for purpose of
advertising.
40 As with the GST that there “never ever” would be a GST we may consider also the following;
.
QUOTE dr080905-GST-TELSTRA.pdf Mr KATTER (Kennedy) (11.02 am)—
Before us is that we will replace a situation in which the Australian people, in the
Constitution, placed upon the government of Australia the responsibility to provide
45 communication networks between Australians. That is what the Australian people said, and
they are saying it today.
END QUOTE dr080905-GST-TELSTRA.pdf
.
QUOTE dr080905-GST-TELSTRA.pdf
50 Ms HALL (Shortland) (11.02 am)—I was very pleased to hear the member for Fisher
guarantee that Australia Post would not be sold. He was prepared to make a rock solid,
ironclad guarantee based on the fact that the Prime Minister said that that was the case. I
would like to remind the member for Fisher that maybe he should have been a little hesitant
about agreeing to that rock solid, ironclad guarantee. The Prime Minister also promised that
there would not be a GST, and that has changed. I hope, for the sake of Australia and for
the sake of Australia Post, that the rock solid, ironclad guarantee that the member for Fisher
5 was prepared to give earlier, based on the Prime Minister’s word, is actually observed.
END QUOTE dr080905-GST-TELSTRA.pdf
And
QUOTE dr080905-GST-TELSTRA.pdf Ms HALL (Shortland) (11.02 am)—
It is also interesting that the question that the member for Fisher asked the member for
10 Oxley concerned whether he could list the countries that have privatised their postal
service. To me, that demonstrates an underlying interest by the government in privatising
Australia Post. He wants to look at overseas examples—maybe he will go away to his
office and work at modelling what could happen in Australia based on what has happened
overseas. Once he has done his modelling, he can send it off to the Prime Minister and say,
15 ‘Hey, Prime Minister, maybe I gave a rock-solid, ironclad guarantee in the Main
Committee on 8 September 2005; maybe in question time you said Australia Post would
not be sold; and maybe you do not see that there are any double standards with Australia
Post’s only shareholder being the regulator and that being all right, and Telstra’s major
shareholder being a regulator and that being a problem. But how about we sit down and
20 look at these overseas examples. I am sure that, as with the GST and all the other areas
where we have given rock-solid, ironclad guarantees in the past, we can revisit it and we
can sell off Australia Post.’ My advice to Australians is: be very, very careful; what the
government says today is not what it does tomorrow.
END QUOTE dr080905-GST-TELSTRA.pdf Ms HALL (Shortland) (11.02 am)—
25 .
The following statement places beyond doubt that “Taxation Bills” and “Appropriation Bills”
must be passed together through the Houses of Parliament, this as was made clear in what Mr.
Barton stated that there must be embodied in both bills a reduction as one cannot spend more
then is being allowed to be collected by taxation. This also underlines my long held view and so
30 often expressed that taxation laws only can be legislated for one particular financial year and
then seize to have any further powers unless the parliament specifically extend the legislation
each time Appropriation Bills for a following financial year are due and presented to the
Parliament.
.
QUOTE
Mr. BARTON: Supposing that with the raising of £300,000 of taxation the Government
will be enabled to make ends meet for certain items of expenditure by the Commonwealth,
40 and supposing that they cannot get a Bill providing for that taxation through the
Senate, but that the amount is cut down by £100,000, that must mean a corresponding
reduction in the expenditure embodied in the Appropriation Bill. One hinges upon the
other. It may be subtle enough for some of our friends to say they do not claim the right to
amend the Appropriation Bill, but they really want the right to do so without saying a word
45 about it. They may say "We will take your Appropriation Bill with its provision for so
much expenditure," and leave you in the lurch to find some means of taxation to make
that amount up. That makes them masters of the situation. It is not like the right of veto,
because in exercising that right and taking the extreme course of vetoing such a measure
right out, a House takes on itself the whole responsibility. If, however, it is merely a
50 question of amendment, that House can say, "Oh, it is merely a matter of arrangement."
END QUOTE
.
The statement “One hinges upon the other.”underlines you cannot have some Taxation law
enacted in 1936 and continue its merry round regardless of what is required for Appropriation
Bills. Clearly this wanton collection of taxation is unconstitutional and the legislation is ULTRA
VIRES and so without legal force.
5 .
As I have also attended to in the past, considering also Section 57 of the Constitution BOTH
Taxation Bills and Appropriation Bills must be presented to the Parliament before the period
required by the Constitution to apply expires. As such, considering the readings required (which
the Framers of the Constitution made clear cannot be done within the same session) and any
10 dispute about the bills is resolved by way of DOUBLE DISSOLUTION, a joint sitting, and if
still failing then another (revised) bill presented to the Parliament the so called “Budget night” in
may just prior to the new financial year commencing on 1 July following is totally insufficient
for this constitutional process to take place.
QUOTE
15 57 Disagreement between the Houses
If the House of Representatives passes any proposed law, and the
Senate rejects or fails to pass it, or passes it with amendments to
which the House of Representatives will not agree, and if after an
interval of three months the House of Representatives, in the same
20 or the next session, again passes the proposed law with or without
any amendments which have been made, suggested, or agreed to
by the Senate, and the Senate rejects or fails to pass it, or passes it
with amendments to which the House of Representatives will not
agree, the Governor-General may dissolve the Senate and the
25 House of Representatives simultaneously. But such dissolution
shall not take place within six months before the date of the expiry
of the House of Representatives by effluxion of time.
If after such dissolution the House of Representatives again passes
the proposed law, with or without any amendments which have
30 been made, suggested, or agreed to by the Senate, and the Senate
rejects or fails to pass it, or passes it with amendments to which the
House of Representatives will not agree, the Governor-General
may convene a joint sitting of the members of the Senate and of the
House of Representatives.
35 The members present at the joint sitting may deliberate and shall
vote together upon the proposed law as last proposed by the House
of Representatives, and upon amendments, if any, which have been
made therein by one House and not agreed to by the other, and any
such amendments which are affirmed by an absolute majority of
40 the total number of the members of the Senate and House of
Representatives shall be taken to have been carried, and if the
proposed law, with the amendments, if any, so carried is affirmed
by an absolute majority of the total number of the members of the
Senate and House of Representatives, it shall be taken to have been
45 duly passed by both Houses of the Parliament, and shall be
presented to the Governor-General for the Queen’s assent.
END QUOTE
.
Below considering some of the quoted “Terms of reference for the inquiry:” it is clear that the
50 GST was not considered to be some “supply” tax as the Court in the O”Meara case purported to
claim but that in fact it was for all purposes and intent to be a tax upon the consumers.
Ironically while the GST is unconstitutional in its form under Commonwealth constitutional
provisions it might not at all have been unconstitutional for the States to impose their own kind
of GST as they are not bound by the same restrictions as is in the (Federal) Constitution!

Also, Appropriation Bills for ordinary annual services of the Government clearly never could
have included the hundred fifty or more million dollars spend on WorkChoices advertising! This,
as it is not an ordinary annual expenditure!
QUOTE
5 54 Appropriation Bills
The proposed law which appropriates revenue or moneys for the
ordinary annual services of the Government shall deal only with
such appropriation.
55 Tax Bill
10 Laws imposing taxation shall deal only with the imposition of
taxation, and any provision therein dealing with any other matter
shall be of no effect.
Laws imposing taxation, except laws imposing duties of customs
or of excise, shall deal with one subject of taxation only; but laws
15 imposing duties of customs shall deal with duties of customs only,
and laws imposing duties of excise shall deal with duties of excise
only.
56 Recommendation of money votes
A vote, resolution, or proposed law for the appropriation of
20 revenue or moneys shall not be passed unless the purpose of the
appropriation has in the same session been recommended by
message of the Governor-General to the House in which the
proposal originated.
END QUOTE
25 .
Check out the following statements, and keep in mind it relates to “laws” not “proposed laws”
meaning that it relates to the final legislation as in place, regardless if amendments were made
referring to a singular item but the final legislation deals with more then one item then the
legislation is unconstitutional, the same if the legislation deals with other items other then
30 taxation.
.
QUOTE
35 Mr. HIGGINS:
What is meant by one subject of taxation? Suppose a land tax is imposed, you tax posts
and rails. That may be argued not to be a law dealing with one subject.
END QUOTE
.
40 QUOTE
Mr. BARTON: Of course in one sense every clause in an Act is a law, because it is a
distinct enactment; and if the hon. member will refer to the Statute Book in reference to old
Acts he will find each clause beginning with "and be it further enacted," and every clause is
therefore an enactment, and in that case it is a law. In this case, however, the meaning is
45 clear. It is this: that the Bill, afterwards becoming a law imposing [start page 576] taxation,
shall deal with the imposition of taxation only; that means, of course, shall contain such
provisions as are necessary for carrying the taxation into effect.
END QUOTE
.
50 QUOTE 080306-ATO-PC CORRESPONDENCE
As shown also below that Framers of the Constitution also stated that land tax could not
include both rail and post. It must be obvious that a rail on a property and a post on a

property may be part of the landscape or the property but a land tax is on the land as to be
considered the bare land of unimproved value and not of improved value.
.
A post can be simply placed on a property as part of a fence, or for other security issues and
5 a rail may be to guide the training of horses or to guide a person along a property to avoid
them to fall into some ditch on a property, etc, and as such may be essentials to the safety
and security of a property apart of being non-essential improvements as for luxury.
.
What therefore is important is as to if the Framers of the Constitution would have allowed
10 the “supply” of beer and the “supply” of tobacco to have been placed in the one excise Bill
or final legislation if the excise provisions had been subjected to the same strict
constitutional embargo as taxation legislation was made to be.
.
It should be clear that the product concerned is the target and not the “supply” of the
15 product. For the ordinary person it would be absurd to contemplate that a person would go
to a store and purchase beer and is not then supplied with the beer so purchased. As such,
the “supply” is an core part of the contract of purchase. If the product purchased is not
provided then the “contact” never was fulfilled. The Courts would not argue if the
tobacconist were to have the tobacco and placed it on the counter but denied the customer
20 to take possession of it after having paid for it, but rather if the customer was entitled to the
product for which a contact was made by the payment. Likewise, if a person steals an item
from a store the Courts are not considering if the tobacconist had on easy display his wares
to be stolen to allow the thief to take it as if this then was a “supply” but rather if in fact
there was a contract of sale”.
25 Legislators may desire to device whatever backdoor manner to invent a way to circumvent
legislative prohibitions of the Constitution but ultimately the issue is if the purpose of the
legislation complies with constitutional provisions or exceeds it.
END QUOTE 080306-ATO-PC CORRESPONDENCE
.
30 QUOTE
So far as the expression "laws" or "Acts" is concerned, that deals with the law when
it is passed, and such an expression to my mind clearly means that even after that
which is a Bill has become law. if it deals with anything more than the imposition of
taxation, it will be unconstitutional, and the Federal High Court can decide that it is
35 unconstitutional and void; so when an Act affecting to deal with more than taxation,
and yet is a Tax Bill, happens to be carried through both Houses and assented to in
contravention of this provision, that would be an unconstitutional and therefore a
void Act.
END QUOTE
40 .
QUOTE
45 END QUOTE
.
QUOTE
50 member is quite right in saying that it took place under the next clause; but I am trying to
END QUOTE
.
QUOTE Mr. OCONNOR.-
5 We must remember that in any legislation of the Commonwealth we are dealing with the
to it.
END QUOTE
10 .
QUOTE
15 END QUOTE
And
Mr. BARTON.- The position with regard to this Constitution is that it has no
legislative power, except that which is actually given to it in express terms or which is
20 END QUOTE
.
QUOTE
Mr. HIGGINS.-No, because the Constitution is not passed by the Parliament.
25 END QUOTE
.
Therefore, where the intentions of the Parliament was to replace the wholesale tax and to tax
people on consumption, and this war born out by the public dispute about the introduction of the
GST and how it should exclude certain essential basic groceries then it clearly never was
30 intended to be some business tax on turn over and the fact that this may be argued now by the
Court in the O’Meara case as being a tax on :”supply” is simply not applicable nor can be
accepted in line of what the terms of reference of inquiry was about, which clearly did not at all
limit itself to business turnover and neither that people would have to pay 10% GST and then the
businesses can keep if not all most of it pending the ATO (Australian Taxation Office) rating,
35 and even after deducting its own good it purchases.
.
Hansard 28 January 1999.
QUOTE
Terms of reference for the inquiry:
40 (1) That a select committee, to be known as the Select Committee on a New Tax System, be
established to inquire into and report, on or before 18 February 1999, on the economic theories,
assumptions, calculations, projections, estimates and modelling which underpinned the
Government’s proposals for taxation reform, contained in Tax reform: not a new tax, a new tax
system.
45 (2) That, in conducting its inquiry, the committee examine the following matters:
(a) the estimated levels of revenue to be generated or foregone due to the proposed changes,
including the estimated level of revenue to be generated by imposing a goods and services
tax (GST) on the basic necessities of life (such as food, clothing, shelter and essential
services) and books;
50 (b) the effects of the proposed changes on:
(i) national Gross Domestic Product,
(ii) national export performance and national debt,
(iii) the national Consumer Price Index, and
(iv) the distribution of wealth in the Australian community;
(c) the effects of the package on future federal budget revenues, expenditures and surpluses,
including a critical assessment of the economic assumptions underpinning the Treasury’s
projections in this regard;
5 (d) the effects of the taxation and compensation package on disposable income and household
spending power for a range of ’cameo profiles’, including but not limited to those
presented in the proposals, under the following scenarios:
(i) a GST extended to the necessities of life (such as food, clothing, shelter and essential
services), and
10 (ii) a GST not extended to the necessities of life (such as food, clothing, shelter and
essential services);
(e) with the aim of identifying families and groups who may be disadvantaged by the
Government’s proposals, focusing on lower and fixed income individuals, families with
dependent children or adult members, groups and organisations, and those with special
15 needs, such as people with disabilities;
(f) the assumptions made as to consumption and saving patterns and the cost of living for the
various ’cameo profiles’;
(g) whether the stated objectives of the package can be met by using an alternative and fairer
approach; and
20 (h) such other matters as the committee considers fall within the scope of this inquiry.
(3) That the committee also inquire into and report, on or before 19 April 1999, on the broad
economic effects of the Government’s taxation reform legislation proposals with regard to the
fairness of the tax system, the living standards of Australian households (especially those on
low incomes), the efficiency of the economy, and future public revenues, including:
25 (a) the effects on equity, efficiency and compliance costs of including, or not including, food
or other necessities of life in the GST, together with any related adjustments to the package
if food or other necessities of life were GST zero-rated;
(b) the effectiveness of the package in easing the poverty traps facing people on low incomes,
and reforming and streamlining tax and income support for families with children, taking
30 into account the static and life-cycle impacts on families with children;
(c) options for amending the income tax schedule to make it more equitable;
(d) the findings of the Tax Consultative Committee chaired by David Vos;
(e) options for improving the effectiveness and fairness of the tax system and reducing
inequitable or unreasonable tax avoidance and minimisation, including consideration of
35 alternative areas for tax generation, either where there are current tax concessions or where
Australia’s taxation system does not address major tax potential, and without limiting the
foregoing, the consideration of taxation of foreign companies operating in Australia,
including the relative merits of resource rent taxes, royalties or land taxes as compared to
company tax in securing a fair compensation to Australia for use of its resources, whether
40 the 150% tax concession for research and development should be restored and whether
small companies should be allowed to be taxed as partnerships.
(f) the potential for tax avoidance and evasion, including an examination of the effects on the
cash economy, and the potential impact of electronic commerce on the future viability of a
GST;
45 (g) the effects on compliance costs;
(h) the potential for reducing payroll tax, including by providing incentives to create long-term
employment and by replacing payroll tax with a carbon tax;
(i) whether there are other means available for rebating or reducing the indirect taxes or
excessive user charges embedded in exporters costs;
50 (j) excises, including those on fuel, tobacco and alcohol - identifying the industries which
benefit, and to what extent, from the proposed changes to taxes on fuels;
(k) the effects on interest rates;
(l) the effects on investment, in both physical and human capital formation;
(m) the effects on small business;
55 (n) the effects on the non-profit sector, including the total amounts of money contributed by
the sector, administrative costs, impacts on the viability of the organisations, and the
consequent effects on the wellbeing of the community;
(o) the effects of the GST on particular industries, including:
(i) key service industries such as tourism,
(ii) the Australian automobile and related industries, having particular regard to the
effects of changes to fuel excises,
5 (iii) other ’invisible’ export industries, such as education and financial services, and
(iv) the international competitiveness generally of Australian industries;
(p) the implications of not requiring that the GST component of goods and services be itemised
on receipts;
(q) the effects of the taxation reform legislation proposals on rural and regional stakeholders,
10 including:
(i) the effects on particular regions,
(ii) the effects on rural and regional communities of different tax regimes on fuel -
especially the cost of transport of goods to rural communities,
(iii) the effects on primary industry of replacing the current sales tax exemption on
15 agricultural machinery with a GST, and
(iv) the effects of imposing a GST on food and other necessities of life on remote
communities, including Aboriginal and Islander communities;
(r) the effects of the Government’s taxation reform legislation proposals on state and local
government administration, including:
20 (i) the effects of the package on future federal-state financial relations and the
capacities of state and local governments to adequately finance their respective
responsibilities in both the short-term and the long-term, including the effects of
the proposed transfer of responsibility for local government financial assistance to
the states, and whether it discriminates between states,
25 (ii) the implications for specific purpose programs,
(iii) mechanisms required to lock in commitments made by federal and state
governments with regard to the new arrangements,
(iv) the implications for future federal-state financial relations of not extending the GST
to the necessities of life (such as food, clothing, shelter and essential services) and
30 books, and any adjustments to the proposed arrangements which would be required
to federal-state financial relations,
(v) the implications of the package for the quality and affordability of public utility
services and for the public utility concessions for social security recipients,
(vi) the effects of application of the GST, and of changes to tax status, on local
35 government and its activities, particularly commercial activities,
(vii) the implications for the delivery of Commonwealth Government services, including
employment services, welfare and other social and cultural services, and
(viii) the extent to which the proposed compensation arrangements are secure from
change to below adequate levels;
40 (s) the adequacy of measures to ensure that consumers fully benefit from the abolition of
existing taxes;
(t) the effects of the taxation reform legislation proposals on legal and constitutional matters,
including:
(i) the constitutionality of the proposed mechanism for future changes to the GST,
45 including whether such changes would present a significant hurdle to future
increases, or reductions if deemed necessary to stimulate the economy,
(ii) the constitutionality of the proposed reorganisation of federal-state tax arrangements
and whether the powers and functions of states and territories are materially
affected by this reorganisation, and
50 (iii) the effects of the proposals on the cost of access to justice; and
END QUOTE
.
QUOTE
Committee Matters for Inquiry
55 Community
Affairs

The impacts of the Government’s taxation reform
legislation proposals on the living standards of
Australian households (especially those on low
incomes), including:
5 (a) the scope and effectiveness of the proposed arrangements
on charities, child care services, aged
care services, welfare services, local government
human services and all not-for-profit
organisations in maintaining the quality and
10 affordability of essential community services,
including the implications for the public funding
of these services and the implications for the
commercial activities of these organisations, and
whether unconditional GST-free status should
15 apply to bona fide charities;
(b) a detailed examination of the zero-rating of
health services, including an examination of
which services should be zero-rated;
(c) the effects on community sector organisations of
20 changes to their tax exempt status, and of the
compliance costs of the proposed tax
arrangements;
(d) the effects of the proposed private health
insurance rebate;
25 (e) the effects on people with disabilities;
(f) the effects on public, community and private
housing, including the levels of rents; and
(g) options for amendments to improve the fairness
or efficiency of the proposed legislation.
30 Employment,
Workplace Relations,
Small Business
and
Education
35 The employment incentive and education impacts of
the Government’s taxation reform legislation
proposals, including:
(a) the scope and effectiveness of the proposed zerorating
arrangements for education in maintaining
40 its quality, accessibility and affordability;
(b) the effects on employment;
(c) the effects of the proposed GST treatment on the
quality, accessibility and affordability of employment
services;
45 (d) the effects on education of imposing a GST on,
or zero-rating or exempting books and associated
education resources;
(e) the effects on education of imposing a GST on
ancillary resources, services and commercial
50 activities, including the effects on overseas
students;
(f) the effects of the proposed changes to the tax
system on employment;
(g) the effects on wage costs, particularly if the
55 basic necessities of life are taxed;
(h) the scope and effectiveness of changing the
unemployment benefits, pensions and Newstart
Allowance ’tapers’;
(i) the effects of the proposed changes to the tax
system on training and adult education; and
(j) options for amendments to improve the fairness
5 or efficiency of the proposed legislation.
Environment,
Communications,
Information Technology
and the
10 Arts
The broad effects of the Government’s taxation
reform legislation proposals on the environment, the
arts and information technology, including:
(a) the environmental effects, and likely impacts of
15 changes to fuel excises, particularly but not only
diesel, and the replacement of WST with GST
on vehicles and other transport services
including:
(i) possible increases in greenhouse gas
20 emissions,
(ii) increases by amount and type of air
pollution,
(iii) the effects on public and rail transport,
(iv) the effects on alternative energy use in
25 transport including, but not limited to,
compressed natural gas,
(v) the changed effects on native forests of
logging or woodchipping due to the tax
package, and
30 (vi) the changed effects of mining in
environmentally sensitive areas due to the
tax package;
(b) the environmental effects of the replacement of
Wholesale Sales Tax by the GST and associated
35 changes in fuel excises on electricity and natural
gas;
(c) the impacts of the proposed tax changes on the
prices and existing and potential use of
renewable energy particularly but not only solar
40 energy technology and energy efficiency
equipment;
(d) the environmental effects of any changes to
taxes on exports;
(e) the consistency or otherwise of the proposed
45 changes in taxation and excise arrangements
with Australia’s international treaty obligations,
including its obligations under the Framework
Convention on Climate Change;
(f) options for a tax system which better achieve
50 environmental objectives,including incentives for
fuel efficiency and alternative energy sources,
such as measures which promote both
environmental protection and employment
generation;
55 (g) the extent to which environmental impacts were
considered in the drafting and final copy of the
Government’s tax package;
(h) the scope of any consultation on environmental
matters with experts in Environment Australia or
any other Government departments other than
the Treasury and Finance departments;
5 (i) the impact of a GST on ticket sales for the performing
arts;
(j) the effects of a GST on the transfer of grant
monies for arts projects;
(k) the effects of the tax proposals on sponsorship
10 provided by the private sector to individual
artists and arts organisations;
(l) the extent to which the package will block consideration
and introduction of ’ecotaxes’;
(m) the effects of a GST on not-for-profit
15 conservation and arts organisations; and
END QUOTE
.
Albeit I had no formal education in the English language and neither is it my native language, I
found that this rather was often to my benefit, as I would question the meaning of words more
20 then those who had grown up with the English language.
.
QUOTE
We cannot frame the same sort of constitution as we would frame if it were a
constitution for a unified Australia.
25 END QUOTE
.
While the states may have a certain liberty to frame their taxation legislation the Commonwealth
of Australia does not have this in the same manner but is bound by the specific prohibitions
applied or implied by the Framers of the Constitution which are if not specifically stated in the
30 Constitution itself are embedded in the Constitution.
.
As a “CONSTITUTIONALIST” I consider matters as to how the Framers of the Constitution
would have applied their intentions, and the references to tobacco, beer, post and rail may
underline how they would never have accepted a GST kind of taxation structure to be applicable.
35 .
This document has taken a considerable number of hours to produce, and seeks to quote relevant
parts of the Hansard and at times long quotations as to show in which context certain statements
were made, as to give the Reader a more appropriate set out.
.
40 It is not relevant how anyone on a contemporary view may seek to justify the application of the
GST legislation but what actually is constitutionally permissible as to the intentions of the
Framers of the Constitution. They were creating a “federation” and not a “confederation” and
this must be kept in mind that GST and any other kind of Consumer Tax that may be within
constitutional provisions of certain countries would have no place within the “POLITICAL
45 UNION” created by the federation.
.
I MAY BRIEFLY REFER TO THE FOLLOWING
© Cambridge University Press www.cambridge.org

50 CAMBRIDGE University Press
978-0-521-85112-1- Value Added Tax a Comparative Approach
Alan chenk and Oliver Oldman
Front matter

.
QUOTE
Value Added Tax
This book integrates legal, economic, and administrative materials about value
5 added tax. Its principal purpose is to provide comprehensive teaching tools – laws,
cases, analytical exercises, and questions drawn from the experience of countries
and organizations around the world. It also serves as a resource for tax practitioners
and government officials that must grapple with issues under their VAT or their
prospective VAT. The comparative presentation of this volume offers an analysis of
10 policy issues relating to tax structure and tax base as well as insights into how cases
arising out ofVAT disputes have been resolved. In the new edition, the authors have
expanded the coverage to include new VAT-related developments in Europe, Asia,
Africa, and Australia. A new chapter on financial services has been added as well
as an analysis of significant new cases.
15 END QUOTE
.
QUOTE
Contents
List of Tables, Figures, and Charts page xxiii
20 List of Cases xxv
Preface to the Revised Edition xxxiii
1 Survey of Taxes on Consumption and Income,
and Introduction to Value Added Tax 1
I. Introduction 1
25 II. Development of Taxes on Consumption – A Brief Review
of History 2
III. Direct and Indirect Taxes on an Income or Consumption
END QUOTE
.
30 From just reading the layout of this book it is apparent that the Value Added Tax is also referred
to as being the GST and it also refers to the O’Meara decision. It may be deemed to be a
“consumption” tax but it would as has been set out below still offend the intentions of the
framers of the Constitution as it is a tax that relates to more then one taxable item.
.
35 The O’Meara decision in my view is an absolute disgraceful judgment as it never even bothered
to place the GST provisions in the proper context of the intentions of the Framers of the
Constitution as I have done so far as set out to some extend below.
There are countless people who have paid for services and/or goods and were charged GST and
then never getting the goods and/or services paid for. Now, while the business may have gone
40 broke (out of business), have been taken over by liquidators, are crooks, or whatever in the end
the customer was forced to pay GST for “supply” of goods and/or services never rendered and
the ATO as such must be accountable for monies that were charged as GST to be repayable to
those people. After all it is the ATO and not private businesses who are on behalf of the crown
enforcing legislation. It must be clear, besides other constitutional arguments, that any real tax on
45 the “supply” of goods and/or services could only be applied when the “supply” actually
materialised, and not being subject to a contact but may never eventuate.
.
A supply doesn’t exist until the goods/service is supplied and if there is no supply/service
eventuating then clearly the business that collected the taxation on behalf of the
50 Commonwealth has by acting under authority of the Government (regardless lawful or
not) placed the government under an obligation to return any GST so charged. However,
as the ATO made known to me it has no record keeping of how much, where and when
each person pays GST we have this absurd situation where tax collecting no longer is
reliable.
55 .

It should be understood that the right to charge taxation is a right in sovereign by the Crown and
so Ministers acting on behalf of the Crown. No citizen (ordinary business enterprise) can assume
powers to charge taxes upon other citizens. Only the official Crown Department especially set up
for this would have such a powers. Hence, the collection of taxes in the name of the “sovereign”
5 (the Crown) can only be raised by or on behalf of the Crown’s agents. The moment this is
delegated to any person, including “aliens” as de facto tax collectors then the crown has
conceded its powers to raise taxes to the ordinary person and no longer can be deemed to hold
this power of taxation.
.
10 Hence, it is not for a business to pay, to the ATO, GST on the basis of “actual sales and business
inputs” while uncontrolled charging customers GST, regardless if this is lawfully permissible or
not as the Crown has a DUTY OF CARE towards the subjects that it is not , so to say, bleed dry,
to pay taxes to some private individual, and indeed an “alien” that may advance the riches of
some enemy, and for this all and any taxes collected can only be duly authorised to be done by
15 those employed in Her Majesty’s services for this. The abrogation of sole right by the Crown
(sovereign) to charge taxes would be obliterated if any taxation powers were to be given to
private business, which appears the GST legislation has accomplished.
.
Because the GST is applicable to the, according to the 29 February 2008 correspondence os
20 “calculated on the basis of their actual sales and business inputs” and as such it is open for any
business proprietor to charge a customer 10% GST but in the end not having to pay this 10%
because his business sales may be found to be less then what was otherwise expected. If for
example a customer fails to pay his/her bill then the GST collected from other customers will be
compensating for this to so extend. Now, say for example that I claim to have sold 100 CD’s and
25 collected on them $300.00 GST. The point however is that if the CD’s were sold for $30.00 each
then this would be a total of $300.00 but if in fact I sold the CD’s for $50.00 each then the
collected GST would be $500.00. No accountability exist to the ATO to prove for how much I
actually sold the CD’s merely that I claim how much business sales I made. As such, the GST is
on the business sales and not on the items themselves. I am by this allowed to set my own
30 taxation upon customers and charge whatever I deem appropriate, and there would be no records
for the ATO (by its own admission) to verify if a customer having paid a certain GST this money
actually made it into Consolidated Revenue or it simply was used by me, to perhaps gamble it
away and so no records would exist of the whereabouts of the moneys collected in GST. If a
customer then desires to get a refund of GST I simply make clear that I paid the moneys into the
35 ATO and then it is up to the ATO to refund the GST from what I have already paid in previously,
even so it may not at all be the GST paid by that customer.
.
Where the amount of GST is calculated on “sales” turnover then it means the Business owner can
charge GST upon customers and then deduct his own consumption of goods as spoiled goods and
40 make them tax deductible and so he will have to pay far less GST then that which was actually
collected from customers.
.
I have therefore created my own sovereign powers to collect taxes as I please without any real
accountability to anyone.
45 Again
It cannot be argued that a business is liable to refund GST, because many businesses are going
broke without even having paid the GST they collected to the ATO and so who is the consumer
to turn too one may ask to get a refund of the GST paid for goods/services but never having been
provided? After all the GST is on the “supply” of goods and services and if no “supply”
50 eventuated it cannot be held that the GST nevertheless was payable.
.

The GST neither can be some kind “business turnover tax” because then private citizens who
do not run a business per se may not be obligated to pay certain taxes.
.
It should be understood that most Members of Parliament never even may have read the Hansard
5 records of the Constitution Convention Debates and likely neither most judges who are dealing
with constitutional matters, as such it basically is the blind leading the blind. While the Attorney-
General is to certify to the Governor-General that certain proposed legislation passed through
both houses is constitutionally valid, the truth is that the Attorney-General may not have a clue
what really is constitutionally valid. There is no test upon the competence of any person to
10 become Attorney-General or for that matter a judge of a Court as to constitutional competence
and as such for the lay-lawyer who never even researched constitutional issues it may appear that
everything is above board, so to say, whereas when I read the same judgment it is nothing more
but sheer and utter nonsense.
How little Members of Parliament may understand about constitutional issues can be shown by
15 the huge flare-up about some Members of Parliament having taken up work assignments for
companies. What they do not seem to understand is that Members of Parliament are not
employed by the Commonwealth and the Constitution only allows them an “allowance” as a
compensation for loss of earning of their normal form of employment. As such there is
absolutely nothing wrong for a Member of Parliament to be involved in other work as in fact if
20 the Member of Parliament were not to do so then this Member of Parliament would be
unemployed! It is only that the Member of Parliament doesn’t engage in a form of employment
that might be a conflict of interest with his representation in the Parliament.
We had that candidates who successfully were elected in the federal election were being paid
“allowance” even so they were not employed at all in the Parliament and not having taken up
25 their seat until the first day of sitting then they were simply not entitled to collect any monies as
if they were Members of Parliament. It only shows how little constitutional understanding and
perception Members of Parliament really have and yet many are making clear they are lawyers!
If therefore they do not even grasp their constitutional position and entitlements then how on
earth can they do better in understanding constitutional powers and limitations as to Bills before
30 the parliament to be voted upon, but, such as WorkChoices, never even had a copy to know what
on earth they were voting for.
.
I would consider it to be an insult to my person to be called a “lawyer” as it is to me that I would
be more then likely brainwashed during formative years at law studies. I would be ashamed to
35 have been a judge handing down a decision such as the O’Meara case, as it is a disgraceful
decision, that does not reflect any competence in constitutional matters to be shown in the
judgment. This is also why it is so essential that there is an OFFICE OF THE GUARDIAN, a
constitutional; council that advises the Government, the People, the parliament and the Courts so
that despite any ignorance to legal reality they still can at least obtain appropriate advice.
40 .
QUOTE
Mr. HIGGINS: It is simply this, be cause the practice as to the rights of the two Houses
45 has become so settled, so stereotyped, that there have been less conflicts about Money Bills
than formerly. But although my friend, Mr. Wise, says the main questions which divide the
people to-day are social questions-although that is quite true-still you cannot dissever the
Money Bills from the policy upon which the money is spent. You cannot dissever
Taxation Bills from Appropriation Bills.
50 Sir JOSEPH ABBOTT: Hear, hear.

Mr. HIGGINS: The whole power of appropriation is based upon taxation, and you
cannot draw the line between them in that arbitrary way.
END QUOTE
.
5 Hence, taxation Bills can only apply to the relevant appropriation Bills for that particular
financial year.
.
Below some quotations also of my 071207 correspondence;
QUOTE
10 A law is unconstitutional if it deals, as a Tax Bill, with more than one subject of
taxation unless it is a Customs Bill, or with any question except the imposition of taxation
and the necessary machinery therefor.
.
Mr. O'CONNOR: It is not excepted in the way which I will point out now, by making
15 an infringement of this Act a penalty, that is to say, a penalty that the Act which infringes
shall be of no validity. It is only in that way that you can ensure compliance with these
provisions, or if you make it so obligatory that if they are not complied with the Act
shall be void.
END QUOTE
20 And
QUOTE
Mr. BARTON: My own opinion is distinctly that in the form in which this and the
preceding sub-section, and probably the fourth sub-section, stand, they involve that
protection which must be given under a Federal Commonwealth by leaving to the supreme
25 arbiter of the Commonwealth-that is to say, to the High Court-the determination whether
substantial infractions of constitutional law have taken place. To put it in another way: If
the hon. member will compare this with the 52nd clause, that the hon. member will see
deals with "proposed laws," and not with "enacted laws." "Laws" means "enacted
laws." "Proposed" laws are to originate in the House of Representatives. It is not
30 intended, as of course he sees from the form of the section, that the High Court of the
Commonwealth should have under review such a question as whether a Bill originated in
one House or another if passed into law. That is a question for the Houses to settle between
themselves. But the question whether a law on the face of it exceeds the constitutional
power as dealing with more than the imposition of taxation, dealing with more than
35 the laying on of a tax and the machinery necessary for it, or whether it deals with two
subjects of taxation at once, unless it is a Customs law, that question, and also the
question whether the annual Appropriation Act deals with more than the ordinary
annual services of the year, seem to me to be deeply rooted in the Constitution, and
depend not merely upon the questions of relations of the Houses inter se, but on much
40 larger considerations. For that reason, the word used has been "laws," so that the Federal
High Court may deal with them, and if they [start page 577] infringe those principles,
declare them unconstitutional.
END QUOTE
Again;
45 QUOTE
“or whether it deals with two subjects of taxation at once”
END QUOTE.
And
QUOTE
50 Mr. BARTON: Do I understand the hon. member to refer to the use of the words
"proposed laws"? If so, "proposed laws," I may say, is an expression used in other parts in
regard to "Bills," while "laws" covers the expression "Acts." If the hon. member will refer
to the Bill he will find that the words "proposed laws" relate to Bills. With regard to
"Bills," the provisions of the sections will be left to be carried out by the House, that is, by
the President or Speaker. So far as the expression "laws" or "Acts" is concerned, that
deals with the law when it is passed, and such an expression to my mind clearly means
5 that even after that which is a Bill has become law. if it deals with anything more than
the imposition of taxation, it will be unconstitutional, and the Federal High Court can
decide that it is unconstitutional and void; so when an Act affecting to deal with more
than taxation, and yet is a Tax Bill, happens to be carried through both Houses and
assented to in contravention of this provision, that would be an unconstitutional and
10 therefore a void Act. I think that that is the point upon which my hon. friend wished for
information.
QUOTE
.
Hence, a taxation law that allows tax credits/tax refunds is unconstitutional!
15 .
More over the consider the wording;
QUOTE.
20 which is a Bill has become law.
END QUOTE.
.
Now consider the following part of the Constitutional Convention Debates
QUOTE.
25 Mr. BARTON: I do not think it is the practice in New South Wales to go into Committee
of Ways and Means, both for Customs and excise, at the one, time; I think that is the Flame
in South Australia. It may mean a very important question to both Houses whether the
Customs duties should be in one Bill, and the duties on excise in another, or whether they
should both be in one Bill, and it is a question after all whether we should depart from the
30 arrangement here. I will put this case. It is easy to balance the duties on Customs and duties
on excise in one Bill if you do not regard certain contingencies which may arise, but if you
have another House to deal with and you have regard to the policy of taxation, then, in a
House to which you have conceded the right of veto, it is a different matter. If you include
several subjects in one Bill you will find the Senate ready to grant an excise on beer,
35 but not on tobacco, and it will not have the power to provide for that excise on beer,
without assenting to that on tobacco, inasmuch as the power of amendment is taken
from it. It would not have an opportunity of declaring itself on this, inasmuch as these
were placed in a sort of balance. So it remains a question whether these [start page 597]
duties of excise should not be in one Bill and Customs in another, and also whether-
40 END QUOTE.
Again;
QUOTE
If you include several subjects in one Bill you will find the Senate ready to grant an
excise on beer, but not on tobacco, and it will not have the power to provide for that
45 excise on beer, without assenting to that on tobacco, inasmuch as the power of
amendment is taken from it. It would not have an opportunity of declaring itself on
this, inasmuch as these were placed in a sort of balance.
QUOTE
.
50 Here, the Framers of the Constitution were referring to excise on beer and tobacco and while in
the end excise is not subjected to the same regime as taxation legislation is the debate that
presented itself is that the issues related to “items” being it “goods” or “services” being
“tobacco” and “beer”. The line of the debates by the Framers of the Constitution is not that of
excise on the “supply of the beer” or the “supply of the tobacco” as this would be a mere
gimmick in wording which would be to seek to undermine or sidestep a constitutional prohibition
and as such would fail.
5 O'MEARA v FC of T, 2003 ATC 4406

Judges: Hely J Court: Federal Court MEDIA NEUTRAL CITATION: [2003] FCA 217
QUOTE
``(2) Without limiting subsection (1), supply includes any of these:
(a) a supply of goods;
10 (b) a supply of services;
(c) a provision of advice or information;
(d) a grant, assignment or surrender of real property;
(e) a creation, grant, transfer, assignment or surrender of any right;

(f) a financial supply;
15 (g) an entry into, or release from, an obligation:
(i) to do anything; or
(ii) to refrain from an act; or
(iii) to tolerate an act or situation;

(h) any combination of any 2 or more of the matters referred to in paragraphs (a) to
20 (g).''
END QUOTE
.
What this means is that under the GST provisions the sale of tobacco and beer would be taxable,
this,, even so if the excise had also been subjected to the provisions of the Taxation legislative
25 limitations then no excise legislation could provide excise for both beer and tobacco.
.
On that consideration it clearly cannot be deemed right that the Framers of the Constitution
deemed that beer and tobacco (as then was) could not be put in the one Bill (or final legislation)
but it can be done under a GST legislation, if it was considered that such GST legislation had to
30 exist at the time of the framing of the Constitution.
.
As shown also below that Framers of the Constitution also stated that land tax could not include
both rail and post. It must be obvious that a rail on a property and a post on a property may be
part of the landscape or the property but a land tax is on the land as to be considered the bare
35 land of unimproved value and not of improved value.
.
A post can be simply placed on a property as part of a fence, or for other security issues and a rail
may be to guide the training of horses or to guide a person along a property to avoid them to fall
into some ditch on a property, etc, and as such may be essentials to the safety and security of a
40 property apart of being non-essential improvements as for luxury.
.
What therefore is important is as to if the Framers of the Constitution would have allowed the
“supply” of beer and the “supply” of tobacco to have been placed in the one excise Bill or final
legislation if the excise provisions had been subjected to the same strict constitutional embargo
as taxation legislation was made to be.
.
It should be clear that the product concerned is the target and not the “supply” of the product. For
5 the ordinary person it would be absurd to contemplate that a person would go to a store and
purchase beer and is not then supplied with the beer so purchased. As such, the “supply” is a core
part of the contract of purchase. If the product purchased is not provided then the “contact” never
was fulfilled. The Courts would not argue if the tobacconist were to have the tobacco and placed
it on the counter but denied the customer to take possession of it after having paid for it, but
10 rather if the customer was entitled to the product for which a contact was made by the payment.
Likewise, if a person steals an item from a store the Courts are not considering if the tobacconist
had on easy display his wares to be stolen to allow the thief to take it as if this then was a
“supply” but rather if in fact there was a contract of sale”.
Legislators may desire to device whatever backdoor manner to invent a way to circumvent
15 legislative prohibitions of the Constitution but ultimately the issue is if the purpose of the
legislation complies with constitutional provisions or exceeds it.
.
By checking the intentions of the Framers of the Constitution as to what they were stating one
then would have to ask would the Framers of the Constitution, if a GST then had been proposed
20 been willing to accept that such a form of legislation would be constitutionally valid. In my view,
as a “CONSTITUTIONALIST” the Framers of the Constitution specifically refused this kind
of usage of taxation law, as demonstrated that their concern was that an excise on beer and
tobacco may be unconstitutional if the draft constitution was not amended to allow excise to be
in one Bill or legislation for both beer and tobacco.
25 .
It must be clear also that the true intention of the GST legislation is not to tax the supply of items
regardless if there is no direct or indirect financial benefit to the “end consumer” but that it
relates to the “end consumer”. How then the scheme is set up/devices as to try to circumvent
constitutional limitations is immaterial. If the GST is not applicable where a store provides me
30 with a free item then it can clearly not be for the “supply” of the item.
For example, if one attends to McDonalds Family Restaurant and are a person using a Senior
Card then you can have the “supply” of a cup of coffee “free of charge”. As such the “supply”
takes place but no payment is made and as such no GST is either charged. Yet, if I attend to
McDonalds Family Restaurant and do not make known I am entitled to a free cup of coffee then I
35 am still “supplied” with a cup of coffee only being it that I am charged the ordinary price of it
and so including GST.
.
As such, it is not the “supply” of the cup of coffee that is GST taxable but the “sale” of the cup of
coffee”. Now the “sale” of the cup of coffee” can be held to be the “supply” of the cup of coffee
40 but ultimately it is a tax on the “sale” of the cup of coffee”.
.
Where I assist Pro Bono” people in their litigation then no GST can be applied because there is
no “contract” that is the client of “supply” that is GST taxable. However, if afterwards a person
were to give me a payment or other services in return then it can be deemed that this is an
45 exchange of services that directly or indirectly has provided both a financial benefit and as such
GST may be applicable.
.
As such, the “exchange” of goods and/or services” will be deemed to be a “supply”.
.
50 The concern should be then about the implications of;
(i) to do anything; or

(ii) to refrain from an act; or
.
I recall once that a person offered me monies in return for me not to disclose to the Court certain
details/information I had become aware of that would be critical against his case and assist the
5 other party.
.
I refused to do so. Actually, I stepped out of his case altogether. However, by the terms of the
legislation GST would have been applicable upon my silence had I accepted his offer as I would
have refrained “to do anything” or “to refrain from an act” (such as reporting this matter) that
10 would be GST taxable.
Now, what is the value of my silence to be taxable? If then two people mutually agree not to
disclose something about each other, without any financial exchanges then how would anyone
possibly assess how much GST would be applicable? The silence to one person may be wroth
everything the person owns and so for the other person likewise, just that one may be a pauper
15 and the other a multi millionaire. Is then GST applicable to different financial circumstances?
Surely this is utter and sheer nonsense.
.
What it really comes to is that the Government of the Day pursued to introduce a GST but was
hamstrung by the constitutional limitations and so while arguing that it can be done in other
20 jurisdictions it too should be able to implement the same and simply a device was to be created to
circumvent constitutional prohibitions. Hence the reference to “supply”.
However, GST or Consumption Tax may be within certain jurisdictions lawful but because of the
unique jurisdiction involving the Commonwealth of Australia it is a totally different matter, and
calling it a “supply” does not alter the fact that essentially it is a tax on the consumption of the
25 goods itself by the end user.
.
A problem is that again as an Attorney, I purchase blank CD’s and in the case of the Queen v
Josepha van Rooy produced CD’s with all Authorities and other legal matters that the Court had
directed the Defendant Ms Van Rooy to place before the Court. Now, this was in compliance
30 with a Court order to present this material, and clearly I was not the “end user” but rather the
Court was. Yet, nevertheless I am charged GST for something of which I provided “Pro Bono” to
Ms van Rooy! (The case resulted in the Jury being directed to return a NOT GUILTY charge)
.
Now, if I had charged Ms van Rooy for the production of the CD then perhaps it may be argued
35 that I attracted GST (apart of the argument I have already set out that GST is unconstitutional)
but where I provide a free “service” I am ending up being charged GST on top of the cost of the
blank CD’s and this for my willingness as a good citizen to assist others in need. Yet, if instead
of donating my services to some not-for-profit organisation then no GST would be applicable. If
this organisation were to supply with the blank CD’s I could still perform the same service but at
40 no direct financial cost to me.
.
The real issue is if there can be a GST applicable if no direct or indirect contract existed for the
“sale” or “supply” of goods. In my view GST is dependable on the “contract of sale of beer” and
even if ultimately the liqueur store may not “supply” me with the required products in the mean
45 time I still had to pay for the GST. As such, it is not a tax on “supply” but on the “sale” of goods,
irrespective if they are supplied or not.
When I went to a builder to purchase 600 pavers that had been advertised for sale I discovered
afterwards that the were in excess of 600 pavers. Now, if the GST was to apply not to the sale
price of the 600 pavers but to the “supply” of the pavers then clearly the would have been a
50 different GST applicable. This as I was “supplied” in excess of 600 pavers.
.

Now, as a so to say “bargain hunter” I go to s store and make a bargain deal with the store. For
example a store had boxes of blots and nuts and nails and I offered $200.00 for the lot. It was
then assembled onto a pallet and it was a pallet full. Yet, ordinary a box would sell on its own for
about $50.00 or $60.00. As such, what I ended up paying no where near represented the real
5 sales price of the articles if someone else had purchased the same items. Now, the question then
if the GST was on the “supply” of the products and not on the sales price then how can the be a
stark difference in GST applicable pending who pays what for the same item? As such, it
underlines that it is not the “supply” of the item but the purchase price and as such 10% GST is
added to the purchase price of the item. Therefore this establish that the GST is not a tax on
10 “supply” but on the direct or indirect financial contract. If no direct or indirect financial contract
exist then no GST can be deemed payable in regard of items that otherwise might be subject to
GST.
.
There is another issue as to administration of the taxation legislation.
15 As I indicated previously I was overcharged by Bunnings and I quote from my 7-12-2007
correspondence;
.
QUOTE 7-12-2007 E-MAIL TO BUNNINGS
Date: Fri, 7 Dec 2007 12:39:13 +1100 (EST)
"Gerrit H. Schorel-Hlavka" <inspector_rikati@yahoo.com.au>
From:
Yahoo! DomainKeys has confirmed that this message was sent by yahoo.com.au.
Subject: Ref; COMPLAINT 7-12-2007
To: Northland@bunnings.com.au
CC: inspector_rikati@yahoo.com.au
20 Northland <Northland@bunnings.com.au
.
Ref; COMPLAINT 7-12-2007
.
Sir/Madam,
25 .
As you may recall (see e-mail 7 March 2007 below) I had an issue with prices of
Bunnings v Mitre 10, after the manager at Bunnings Northland had stated it were
the lowest prices before I purchased items only to subsequently discover that items
were much cheaper at Mitre 10.
30 .
Relevant Bunnings store receipt details are;
.
27/02/2005 13:12:04 R4 P408 S6306 C165366 #C400058391(original purchase).
.
35 02/03/2005 16:24:00 R8 P431 S6308 C131436 #0800068724 (refund).
.
The 02/03/2005 refund receipt shows no separate added 15% refund as the
manager gave me the understanding that he had already included this. However,
checking back with the Mitre 10 receipt and then the prices he had re-charged it is
40 clear he charged me for the refund policy rather then what should have been
Bunnings paying me as is and was the advertised policy
.
Upon return to the store on 2-3-2005 the manager then conceded that the receipts
I produced from Mitre10 of items identical to those of Bunnings I was advised that
45 he would refund me the overcharge plus the 15% refund policy, as then applicable.
.
Now seeking to work out how much GST I ended up paying, I discovered that the
manager instead of refunding me the over charge and then adding 15% refund
policy he in fact charged me the 15% minus the 10% GST making it 13.5%.
.
5 The difference being that I was still overcharged $21.70, as set out below!
.
It must be clear that had the manager not included the 15% refund policy (actually
turning out to be about 13.5%) then I would have been refunded $ 149.05 - $ 82.05
= $ 67.00! However with the 15% refund policy I ended up getting only $55.35!
10 .
Now, why on earth should a customer be worse of and loosing 15%?
.
I consider this a very serious issue because if this occurred in my case then I
wonder how many other customers are actually being charge the now again 10%
15 rather then being paid to them as the store policy is! Indeed, the fact that the 15%
is reduced to 13.5 % also is a cause of concern as there could be no GST payable
on the 15% refund policy, at least that is my view as it is neither for goods or
services but due to an overcharge.
.
20 I now set out calculations
.
I recall an incident where I purchased goods from a Bunning store after having asked the
manager if the prices were lower then anywhere else, and he confirmed this. I then spend
$149.05 purchasing certain items. Subsequently I attended to Mitre 10 store and purchased
25 simular items. I then returned to the Bunning Store and the manager shown the prices I had
paid at Mitre 10 store at a considerable lower price then refunded about $55.35 to me, this
including the then 15% promised refund addition.
.
Purchase Bunnings 27-2-2005 (item no. 4771720) 3 sewerage pipes @ $30.87 each = $
30 92.61
Purchase Bunnings 27-2-2005 (item no. 4771762) 3 rainwater pipes @ $18.82 each = $
56.46
-----------
Originally charged Paid $ 149.05
35 .
At Mitre 10 price (same as item no. 4771720) 3 sewerage pipes @ $19.95 each = $ 59.85
At Mitre 10 price (same as item no. 4771762) 3 rainwater pipes @ $ 7.40 each = $ 22.20
-----------
Should have been a charge of Total $ 82.05
40 .
Amount overcharged (including GST) $ 149.05 minus $ 82.05 = $ 67.00
GST component in $67.00 = $67.00 - ($67.00 : 1.1) = $67.00 - $60.91 = $ 6.09
.
Add 15% refund police as then applicable, total refund entitled upon;
45 Due payable to customer including overcharge; $67.00 + 15% = $67.00 x 1.15% = $ 77.05
.
Did charge by adding incorrectly the 15% for me to pay rather then the store to pay
me;
.
50 Purchase Bunnings 27-2-2005 (item no. 4771720) 3 sewerage pipes @ $30.87 each = $
92.61

Purchase Bunnings 27-2-2005 (item no. 4771762) 3 rainwater pipes @ $18.82 each = $
56.46
-----------
Paid $ 149.05
5 .
At Mitre 10 price (same as item no. 4771720)
3 sewerage pipes @ $19.95 + (15% - 15%:10%) each = 3 x $ 22.82 = 68.46
At Mitre 10 price (same as item no. 4771762)
3 rainwater pipes @ $ 7.40 + (15% - 15%:10%) each = 3 x $ 8.41 = 25.25
10 -----------
Total $ 93.71
.
GST paid in $ 149.05 = $ 149.05 - $ 149.05 : 1.1 = $ 149.05 – $ 135.50 = $ 13.55
.
15 GST that should have been paid $ 82.05 - $82.05 : 1.1 = $ 82.05 - $ 74.60 = $ 7.45
.
GST originally overcharged; $13.55 - $ 7.45 = $ 6.10
.
Store did actually charge $ 93.71 : 1.1 = $ 93.71 – $ 85.19 = $ 8.52
20 .
On face value overpaid GST; $ 8.52 - $ 7.45 = $ 1.07
.
Incorrect calculation due to store manager seeking to reduce 15% of refund policy with
10% GST component as to reduce the 15% to 13.5% and by this adding the amount instead
25 of subtracting this meaning that the total is twice the 13.5% =
.
Actual amount that should have been paid by Bunning to me; $ 77.05
Actual amount of refund paid out to me (as per receipt) $ 55.35
---------
30 Under paid in refund $ 21.70
.
What however is shown is that on 20 February 2005 charged $13.55 on GST, and as such
assumed it paid this to the ATO.
.
35 On 2 March 2005 it refunded me $13.55 - $ 8.52 = $ 5.03 GST!
And, to try to outsmart me as a customer to avoid paying GST on the refund policy of then
15%, in its error overcharged me $ 1.07 in GST as well as overcharged me another $ 20.63
making it a total of $ 21.70
.
40 I urge you to refund the overcharge and also to ensure that store managers and
personal do have a proper grip as to how to pay out the (now) 10% refund policy
and not to charge customers instead!
.
Awaiting your response
45 .
Date: Mon, 7 Mar 2005 12:12:51 +0800
From: Northland <Northland@bunnings.com.au>
To: Sean Hegarty <SHegarty@bunnings.com.au>
50 Cc: schorel-hlavka@schorel-hlavka.com
Sean,

Following the information I sent you on March 1st, Gary, the customer
questioning the prices of plumbing products, would like to talk to you
regarding this.
His contact information is as follows :
5 Gary Schorel-Hlavka
107 Graham Road
Viewbank
Ph. : 9457 7209
Regards
10 ANTHONY CARNOVALE
BUILDERS CO-ORDINATOR
BUNNINGS WAREHOUSE - NORTHLAND
Cnr Murray Road & Chifley Drive
PRESTON VIC 3072
15 * (03) 9416 8288
* (03) 9484 7024
* northland@bunnings.com.au
********************************************************************************
Bunnings Legal Disclaimer:
20 1) This email is confidential and may contain legally privileged
information. If you are not the intended recipient, you must not
disclose or use the information contained in it. If you have received
this email in error, please notify us immediately by return email and
delete the document.
25 2) All emails sent to and sent from Bunnings PTY LTD. are
scanned for content. Any material deemed to contain inappropriate
subject matter will be reported to the email administrator of all
parties concerned.
30 Mr. G. H. Schorel-Hlavka MAY JUSTICE ALWAYS PREVAIL® 107 Graham Road

Viewbank, 3084, Victoria, Australia Ph/Fax 03-94577209 International 61394577209 .
END QUOTE 7-12-2007 E-MAIL TO BUNNINGS
.
Now, as to date the ATO has not refunded the over charge of the GST to me.
35 .
I now have to recall an incident of some decades ago as to clarify a matter.
.
I had a service station claiming that they knew how to fix my motor vehicle and so I left in with
them for repair. The replaced the motor-pulley and charged me accordingly. After I collected my
40 motor vehicle I broke down and another service station owner explained to me that the pulley
had absolutely nothing to do with what was wrong with the needle and seat of my motor vehicle
and so he repair it.
Because I had already paid the repair by the first service station owner but still had my petrol
account with him I decided to deduct the bogus repair from the petrol account. Well, he took me
45 to Court and the magistrate made clear that he sympathised with me but that legally it was not for
me to deduct the cost of the bogus repair from the petrol bill as I should have done it with the
original petrol bill that had the repair cost included. Once I paid the bill my only alternative was
to sue the service station owner for the refund of the moneys. As such, the Court ordered me to
pay the monies of the repair and indicated I could now sue the service station for the refund of
5 the moneys of the bogus repair. I didn’t bother to sue.
However, what is therefore clear is that Bunnings under legislation having paid the GST of the
goods purchased then clearly had paid in by now the GST to the ATO. As such it is not for
Bunnings to refund me monies of an overcharge as technically it has already paid this monies to
the ATO and cannot reduce any subsequent GST bill to the ATO with a refund. The ATO in its
10 29 February 2008 correspondence however stated;
QUOTE
Your other concern appears to be the fact that, because of the scheme of the Goods
and Services Tax regime, the Tax Office is unable to tell you exactly how much GST
has been collected from you as a customer. That is correct.
15 END QUOTE
.
This then brings the problem that the ATO is in no position to authorise any refund not knowing
how much GST I paid.
.
20 Bunnings is in no legal position to deduct from current GST payments any refund, as it is not the
ATO and as such is not entitled to provide any form of tax refund.
.
This even more makes the O’Meara decision a mockery as we are talking about GST charged not
for “supply” of anything but having been an overcharge where Bunnings instead of adding 10%
25 GST deducted it to the price of goods returned. And by this I was a total of $21.70 out of pocket.
It means because untrained de facto tax collectors are involved I ended up with a loss of $21.70.
.
Perhaps under the O’Meara decision I could be charged GST for the service of having been
robbed $21.70?
30 .
As yet, I have not perused the hundreds of pages, if not thousands of pages of GST debates in the
Parliament, the submissions made, etc, as this can be also mountains of work, but I recall that at
the time of the GST debate the then Senator Meg Less was claiming to get certain items, such as
bread to be excluded from GST. I do not recall that any argument was about excluding the
35 “supply” of bread from GST, etc.
.
As such, the conception of the population, when they subsequently were required to vote fin a
federal election was one that GST was applicable to items such as petrol but not bread and no
issue as to that the “supply” of some items were GST charitable and the “supply” of other items
40 were not.
.
It must be obvious that the “supply” of items purchased are an interracial part of a purchase. No
one in his right mind goes to a store and pays for items knowing he is not going to be supplied
with them. It is simply part of the “contract of sale” that by the customer paying for the items
45 he is “supplied” with the items. No one can separate the “supply” of goods purchased from the
purchase of the items as without the supply there can be no completion of the “contract”.
.
For example, when I purchased a truck-load of Lilydale toppings, I had to pay for the product
then, including for the delivery, albeit at that time no “supply” had eventuated. If therefore the
50 GST was payable for the “supply” of the product and the delivery then the GST never could be
charged in advance as no services had been rendered and may never be rendered.
.
I had this company, advertising about roof sealing and as my roof needed the work done I called
the person in and was quoted more then $5,000.00 cost. I paid a deposit of $800.00 after he had
calculated 20% discount of the total price already. After the person left I decided to check out my
roof and count the tiles that were actually on the roof, as he had used this to calculate the price of
5 the service to be provided and noticed that he had overcharged me by more then 30% and even
allowing for the 20% discount I was still worse of then if no discount had been applied to the
ordinary cost per tile to provide the service. After some time I had the deposit refunded as I made
clear I didn’t like to do business with crooks. Now, the question is if they had already paid the
GST of the Deposit then how could they then refund the moneys to me? And how could any GST
10 be applicable where the services were in the end never rendered?
.
I decided to call a local person and he did the roof for just over $1,100.00, and later he even
came to repair, without charge, the damages caused by the electrician. .
What this indicates is that the ATO has simply no proper control over GST collected. Despite
15 that the framers of the Constitution made clear that Consolidated Revenue only can be obtained
by Appropriation Bills, I am not aware of any Appropriation Bill being presented for tax refunds,
tax credits, or whatever. It seems that de facto tax collectors are simply making up their own
mind how much GST is applicable, if any, and the ATO lacks any proper form of administration
to account for the credibility of the charges applied.
20 While the correspondence did state in its 29 February 2008 correspondence;
QUOTE
“, the Tax Office is not concerned with the allocation of the GST collected back to
end-users of the goods and services supplied.”
END QUOTE
25 I can assure you as being the victim of this elaborated rip off I am concerned.
The ATO is responsible for the administration of taxation legislation and cannot therefore excuse
itself not to be aware how much tax I was unconstitutionally or otherwise ripped off. I am
entitled to being compensated for this as the ATO as the administrator of taxation legislation
(constitutionally valid or not) by this has a “DUTY OF CARE” towards every member of the
30 general community that the taxation provisions are not wrongly applied.
Clearly, as I have pointed out I am so to say in the middle of a rock and a stone that the stores
charging GST blame the ATO, and the ATO shoves it off as not being their “concern”.
.
As the ATO’s 29 February 2008 correspondence also indicates;
35 QUOTE
In passing a number of acts which I shall refer to collectively for convenience as the
‘GST legislation’ Parliament has, according to “common understanding and general
conceptions”, imposed a tax on a single subject of taxation, namely on the final private
consumption in Australia; O’Meara v FC of T [2003] FCA 217.
40 END QUOTE
.
Therefore by this admission it is a legislation based on the contemporary perception rather then
being determined on the intentions of the Framers of the Constitution.
While judge Hely in the O’Meara case may fancy himself/herself to be a “living
45 constitutionalist” to somehow twist the constitutional applications to whatever may suit the judge
in reality this is beyond constitutional powers and as such is NULL AND VOID and so without
legal power.
QUOTE
that the Constitution shall not, nor shall any of its provisions, be twisted or perverted
50 END QUOTE
.

QUOTE
We have provided for a Judiciary, which will determine questions arising under this
5 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
10 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
15 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
20 whittled away in operation that the guarantees of freedom which it gives your people
will not be maintained; and so, in the highest sense, the court you are creating here,
which is to be the final interpreter of that Constitution, will be such a tribunal as will
preserve the popular liberty in all these regards, and will prevent, under any pretext
of constitutional action, the Commonwealth from dominating the states, or the states
25 from usurping the sphere of the Commonwealth. Having provided for all these things,
I think this Convention has done well.
END QUOTE
.
QUOTE Mr. CARRUTHERS
My [start page 2313] honorable friend urges a very common argument against the
continuance of this right of appeal to the Privy Council-an argument which only needs to be
examined to be thoroughly demolished, namely, that we want to have, in the final Court of
35 Appeal, a body of Judges who have colonial experience, who have colonial ideas, and who
have colonial knowledge. Now, any man, especially an able member of the bar like-my
honorable friend, ought to know that the worst tribunal you could have would be a tribunal
that would decide, not on the sworn testimony submitted to the court, but on knowledge of
the case, and in regard to the case and its surroundings, in the minds of the Judges-evidence
40 of a character which cannot be shaken by cross-examination-evidence which is not known
to the parties interested in the case at all. I venture to say that more mischief is done by
cases being decided by some twist or turn in the minds of Judges than by any judicial
interpretation of the evidence submitted to the court. Now, my great objection to
establishing the final Court of Appeal in Australasia is because there is existing in the
45 minds of the Judges that unconscious bias. I do not impute corruption; I would be very
sorry to do or say anything which would tend to diminish the weight of the authority of our
colonial benches; but without laying myself open to the charge of saying anything
improper, I venture to repeat that that unconscious bias does exist, and will always exist, in
small communities, especially where they are inhabiting large territories.

Sir JOSEPH ABBOTT.-I beg to call your attention, Mr. Chairman, to the fact that there
is not a quorum present. Mr. Howe is not in the chamber, and probably would like to hear
this.
A quorum having been formed,
5 Mr. CARRUTHERS (continuing) said-I was saying that this unconscious bias does
exist, and always will exist, where there are small communities inhabiting large territories,
because the circumstances of life in those communities must be totally dissimilar to the
circumstances of life in populous centres such as exist in the United Kingdom; and there
must grow up in connexion with such centres influences which will permeate the minds of
10 all people in those places. I gave an instance, which has been cited over and over again,
showing the value of the right of appeal to the Privy Council. The case in question was an
important one decided in New South Wales, and the decision affected millions and millions
of pounds worth in value. It affected the tenure of the whole of our Crown lands-the case of
Burke and Allison, which was decided in one direction by the colonial Judges, largely
15 because they knew all about colonial affairs and colonial life, and because they had had
colonial experience. The Privy Council decided that case in a totally different way.
They decided it on the evidence, not on their knowledge of the circumstances, and the
result of their decision has been to give a better security to the class of persons
affected; and the Parliament which made the law which the Judges interpreted
20 admitted, by a subsequent enactment, that the decision of the Privy Council was the
truer interpreter of its intentions.
END QUOTE
.
And this is very much the problem we face currently that judges are bias in their decisions and
25 rather then to properly explore what the Constitution stands for present their own views. Hely J
appears to me to be a clear example of how to twist the true application of the Constitution.
While the correspondence does state;
QUOTE
However, it is not the ‘private final customer’ or end user of the goods and services
30 who is legally obligated to account to the Tax Office for GST. That burden is imposed
on those businesses making ‘taxable supplies’ which are registered with the Tax
Office for GST. As long as the GST for which they account has been correctly
calculated on the basis of their actual sales and business inputs, the Tax Office is not
concerned with the application of the GST collected back to the end-users of the goods
35 and services supplied.
END QUOTE
.
The problem is that the Tax Office is passing the buck, so to say, not to account for
administrative responsibilities. For example it never did provide me with any training as to how
40 to calculate any GST, if applicable, to services rendered to persons as an attorney in the Courts.
In my view the ATO should be concerned if people are charged GST and it never is paid to the
ATO as this allows a black-market environment of businesses charging GST but now paying it
into the Consolidated Revenue. Where I as an end-consumer am charged an additional 10% GST
then I am entitled to be able to check if every cent of that monies paid as a tax is actually paid
45 into Consolidate Revenue.
The legislation may impose the burden upon the business making “taxable supplies’ but where
the business itself would have no clue what are taxable supplies or the amount of it, as shown in
my examples where even an overcharge of $150.00 occurred in one incident alone, then it is not
the ATO who administer the taxation legislation but it is done by trail and error by businesses.
50 I am not aware any business ever offering me goods for sale with or without GST applied.
Simply I am charged GST and the shopkeeper could not care less if I am the end-user or not.
Therefore there is no proper administration of taxation legislation (apart of the constitutional
validity of it) and neither is it appropriate for any shopkeeper to ask my taxation status as this is a
issue between me and the Tax Office, being of confidential nature.
As the 29 February 2008 correspondence makes very clear;
5 QUOTE
“calculated on the basis of their actual sales and business inputs”
END QUOTE
As such, a business may charge customers GST and in the end has by far overcharged the
customers but by the actual sales and business inputs may only make a part payment of this
10 collected GST to the ATO. As such, the end-consumer is ending up being charged “GST” that is
a tax that may or may not be ending up in Consolidated Revenue”. No wonder the treasure of the
previous Government announced to have found billions of dollars as simply the Tax Office lacks
any proper administration to account for how taxes are collected.
As a so called “end-consumer” I have every right to know if every cent that I am charged as
15 “GST” in fact was so paid into Consolidated Revenue. The fact that the tax Office cannot
ascertain this underlines there is a maladministration and a lack of proper administration of
taxation legislation.
.
Some further quotes of the 7-12-2007 correspondence;.
20 And
QUOTE
. I think that although the word "uniform" has the meaning it was intended to have-"one in
form" throughout the Commonwealth-still there might be a difficulty, and litigation might
arise about it, and prolonged trouble might be occasioned with regard to the provision in
25 case, for instance, an income tax or a land tax was imposed. What is really wanted is to
circumstances.
END QUOTE
And
30 QUOTE
I would point out that by introducing the words "proposed law," if you do not exactly
limit the scope of the whole section you will not prevent that result, because if the
High Court will have jurisdiction under secton 2 to declare an Act invalid which did
not comply with that provision it would equally have the power to declare an Act
35 invalid if a Bill upon which an Act was founded did not comply with that condition. It
occurs to me that if you condemn a tree because the branches and fruit are bad, the tree is
equally bad if the root fails in its strength. So if your law is bad as being in conflict with
the Constitution, it must be equally bad if the Bill upon which it is founded violates
the Constitution.
40 END QUOTE
And
QUOTE
Mr. REID: My object was such a simple one that I did not apprehend so much
importance would be attached to it. At first blush I thought everyone would be as anxious
45 as I was to prevent the possibility of such difficulties, but I see now that there is a great
deal more importance attached to it than I thought. The importance, I think, disappears
when we remember that any member of the House of Representatives, upon calling the
attention of the chair to the breach of the provisions, would kill the Bill there, and any
one senator, upon drawing attention to the same clause in the Upper House, could kill the
50 Bill there too.
END QUOTE
.
The problem is that with WorkChoices many Members of the Parliament never even had a copy
of the proposed legislation and unlikely of the existing legislation and as such not in any position
to determine if the legislation was valid within constitutional provisions. Even so that was not a
5 taxation Bill it underlines that one cannot rely upon Members of parliament to ensure Bills
before the House are constitutionally valid.
Where then a Member of Parliament may not even be aware of the content of existing taxation
legislation then any amendment to such existing legislation on its own may appear to be
constitutionally valid but in the final format as part of the enacted legislation would cause the
10 legislation to be in breach of constitutional limitations.
.
QUOTE Mr. SYMON:
Parliament, as far as constitutional questions are concerned, is under the law, and it
must obey the law.
15 END QUOTE
And
QUOTE
The populations of the States had a right to insist that no tax which was not uniform
should be imposed.
20 END QUOTE
And
QUOTE Mr. SYMON:
Therefore it seems to me that, whilst undoubtedly inconveniences may arise, still these
inconveniences do not militate against a very salutary power which as a Federation we
25 propose to vest in the High Court of the Commonwealth. I will only add this-without going
into the details applied in so masterly a way by my hon. friend Mr. O'Connor, when he
pointed out the real safeguard in relation to these sections which the High Court might be at
the instance of a suitor-that we must remember if we seek to derogate from the power
we vest in the High Court of dealing with all laws which any citizen of the Federation
30 may claim to be unconstitutional, we are not invading State rights, because it is not a
question of small States or large States, but it is a question of the liberty and rights of every
subject throughout Australia. It is the subject that is concerned in this; it is not the body
politic, but every taxpayer-every individual who may be assailed either in his liberty-
END QUOTE
35 And
QUOTE
Where there are matters not matters of procedure-where the effective rights of a [start page
585] component part of the Constitution are involved-the Constitutional principle is that
the arbiter of the Constitution-must be allowed to protect those rights. You have not it
40 so in England because the Parliament there is Sovereign, but you have it in the
Federal Constitution, because you have a Parliament that is only a part of the
Constitution, and that Constitution must protect those provisions of the Constitution
which are threatened with infringement. I shall resist all amendments in these
respects because I consider the principles, which are altogether principles of justice,
45 ought to protect Parliament in the exercise of its internal powers, and protect the
people as to what is on the face of a law a breach of the Constitution
END QUOTE
And
QUOTE
50 Mr. WISE: As Sir John Downer says, away goes the Constitution. These are measures
deliberately designed for the protection of every individual citizen, and every citizen who
votes for the Constitution is entitled to know what are the terms on which he will be
liable to pay taxes. If the tax is imposed illegally there is no reason why the illegality
should not be exposed by the Supreme Court of the Commonwealth just like any
other illegal measure. No Government has a right to raise money illegally.
END QUOTE
5 .
QUOTE
Mr. ISAACS (Victoria).- First, it is provided that all taxation shall be uniform
10 throughout the Commonwealth. That means direct as well as indirect taxation, and
the object I apprehend is that there shall be no discrimination between the states; that
15 the same weight on the same class of property, wherever it is found. It affects all kinds
of direct taxation. I am extremely afraid, that if we are not very careful, we shall get into a
difficulty. It might not touch the question of exemption; but any direct tax sought to be
imposed might be held to be unconstitutional, or, in other words, illegal, if it were not
absolutely uniform.
20 Mr. BARTON.-We were inclined to the opinion that "uniform" would not apply so
as to prevent the graduating of a tax. I am glad to have the suggestion from the
honorable member, because the committee will be going into the matter again.
END QUOTE
.
25 Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann;
Spi [1999] HCA 27 (17 June 1999)
QUOTE
For constitutional purposes, they are a nullity. No doctrine of res judicata or issue
estoppel can prevail against the Constitution. Mr Gould is entitled to disregard the orders
30 made in Gould v Brown. No doubt, as Latham CJ said of invalid legislation, "he will feel
safer if he has a decision of a court in his favour". That is because those relying on the
earlier decision may seek to enforce it against Mr Gould.
END QUOTE
.
35 Uniform Tax \case, 1942 (65CLR 373 at 408)
QUOTE
"Common expressions such as: 'The Courts have declared a statute invalid'," says Chief
Justice Latham, "sometimes lead to misunderstanding. A pretended law made in excess
of power is not and never has been a law at all. Anybody in the country is entitled to
40 disregard it. Naturally, he will feel safer if he has a decision of a court in his favor, but
such a decision is not an element, which produces invalidity in any law. The law is not
valid until a court pronounces against it - and thereafter invalid. If it is beyond power it
is invalid ab initio."
END QUOTE
45 .
In my view that ATO ought to pursue the creation of the OFFICE OF THE GUARDIAN, a
constitutional council, that advises the Government, the People, the Parliament and the Courts as
to constitutional powers and limitations. This “limited document” will indicate that too many
LEGAL FICTIONS exist and judges far too often fail to deal with LEGAL REALITIES.
50 Hence, the urgent need for an OFFICE OF THE GUARDIAN. This, so the ATO may finally
have some independent source for advise not contaminated by political views of the Government
of the day.
.
As an Attorney, not a lawyer, I have for decades assisted people in the Courts with their litigation
and at times prepare their cases in such a manner that years later it still is useful. So, the party I
assist fall back on what I had assisted with years earlier. As a matter of fact my nickname, by the
5 Courts has been for decades “TRAP DOOR SPIDER”. This, because I would cross-examine on
a minute detail and explore it to great extend, etc.
.
10 QUOTE
I should like further to revert to an observation of the hon. member, Mr. Dobson. He
practically told us that we were wasting time in a discussion of this kind, because if we sat
here with closed doors, making speeches of a minute's duration or a little more, we might
quickly come to an agreement embodying a genuine scheme of federation which would be
15 accepted by the people outside. I grant that if we sat with closed doors we could more
quickly come to an arrangement on this subject than we can by the process of debating in
public, because some of us would not then need to make such long speeches; but if we
were to follow the process which the hon. member regards as so much superior to the
present one, the difficulty would be that the constitution, which might be the most valuable
20 one upon earth if once accepted, would be so much waste paper, because no population in
any of these colonies would look at it, or approach it, except for the purpose of kicking it.
How is it to be expected that the free people of this country are to have [start page 532]
the adjustment of a constitution made behind their backs, and without knowing what
debates had taken place in the framing of it? I grant that you can have select committees
25 to set out formal propositions for the Convention: but it will be the duty of the
Convention to debate these propositions. This debate must take place in the open light of
day. If we did not debate the matter in this way, how absurd it would be for us, with our
experience of public life, to think for a moment that we could induce any free people to
accept our work.
30 END QUOTE
.
This underlines that the Constitution was not framed in some backroom in secrecy but in the light
of day for people to be aware what was intended by the framers of the Constitution as expressed
in their statements recorded in the Hansard.
35 .
While I have quoted certain parts of the Hansard, below, regarding citizenship, etc. it should be
made clear that the ATO (Australian Taxation Office) represents the Crown and the EAC
(Australian Electoral Commission)likewise represented the Crown against me and by this the
legal principles of “Res Judicata”, “Collateral Estoppel”, “Direct Estoppel” applies.
40 In that the Crown, being it the ATO, the AEC or other Department acting for the “Crown”,
cannot re-litigate the same issues that already were the subject to final orders between myself and
the Crown on 19 July 2006.
.
For example, Section 75(v) of the Constitution ( Commonwealth of Australia Constitution Act)does
45 not differentiate between an employee of the ATO or AEC or other Government Department but
states;
.
QUOTE
75 Original jurisdiction of High Court
50 In all matters:
(i) arising under any treaty;
(ii) affecting consuls or other representatives of other countries;
(iii) in which the Commonwealth, or a person suing or being sued
on behalf of the Commonwealth, is a party;
(iv) between States, or between residents of different States, or
between a State and a resident of another State;
5 (v) in which a writ of Mandamus or prohibition or an injunction
is sought against an officer of the Commonwealth;
the High Court shall have original jurisdiction.
END QUOTE
.
10 Hereby the Commonwealth represents the Crown!
.
Despite my request on 19 July 2006 for a Reason of Judgment the Court albeit granting my
appeals unreserved (meaning not restricting the success of the appeals to any specific issue) it did
not hand down a reason of judgment setting out upon which specific constitutional and other
15 legal issues the appeals were granted. By this, all constitutional issues an contained in the Section
78B NOTICE OF CONSTITUTIONAL MATTERS and other further constitutional and other
legal issues raised in my further material are to be deemed to have been upheld. This in particular
so because the crown at no time challenged anything whatsoever. It was the liberty of the Crown
not to challenge any constitutional and/or legal issue I raised before the Courts but then having
20 taken that liberty the Crown is bound by the decision of the Court that where there was a failure
to challenge any of the constitutional and other legal issues then for purposes of litigation the
Court as an impartial adjudicator must be deemed to have found on each and every issue in my
favour. This in particular where the Court failed to provide a Reason of Judgment that were to
narrow the appeals to being upheld upon a more narrow ground.
25 .
As the Crown did not challenge any of the constitutional and/or other legal issues raised by
me then in law they are standing unchallenged and it is not the position of the Court to do the
work for the Crown and somehow take issue with anything I placed before the Court where the
Crown itself decided not to challenge anything. In particular where I had filed the Section 79B
30 NOTICE OF CONSTITUTIONAL MATTERS, and none of the Attorney-Generals
intervened, despite having the right to do so, also underlines that the Crown in the sovereign right
of the States and or the Commonwealth never did exercise its constitutional right to challenge
what I had placed before the Courts..
.
35 Hence, the State, in its sovereign rights, neither can pursue matters against me because it had the
opportunity to do so and failed/refused to exercise this opportunity and therefore is bound by the
decision of the Court on 19 July 2008.
.
One of the issues canvassed then before the Court was that not a single lawyer is validly
40 appointed, and so neither any judge/magistrate because none hold the required “Australian
citizenship” as a nationality, as there is no constitutional power for the Commonwealth to
define/declare “citizenship” as a “political status” or as a “nationality” because the right of
“nationality” unlike the legislative powers to “naturalise” an “alien” never was provided to the
Commonwealth of Australia and neither so to declare/define if a person born in the
45 Commonwealth of Australia is a “British subject” or not.
.
This correspondence also relied upon the material that was before the Courts at the time,
of the about 5-year litigation, which came to an end in a successful judgment in my favour.
.
50 I have quoted some of the material freely available on the Internet, with the Website address, so
the lawyers of the Crown can perhaps learn from there, if they do not understand the legal
terminologies of Res Judicata, Collateral Estoppel, Direct Estoppel, etc

.
http://en.wikipedia.org/wiki/Res_judicata
QUOTE
Res judicata
5 From Wikipedia, the free encyclopedia
Jump to: navigation, search
Res judicata (Latin for "a matter [already] judged") is, in both civil law and common law
legal systems, a case in which there has been a final judgment and is no longer subject to
appeal. The term is also used to refer to the doctrine meant to bar relitigation of such cases
10 between the same parties, which is different between the two legal systems.
END QUOTE
.
http://en.wikipedia.org/wiki/Collateral_estoppel
QUOTE
15 Collateral estoppel
From Wikipedia, the free encyclopedia
Collateral estoppel, known in modern terminology as issue preclusion, is a common law
estoppel doctrine that prevents a person from relitigating an issue. Simply put, "once a
court has decided an issue of fact or law necessary to its judgment, that decision ...
20 preclude[s] relitigation of the issue in a suit on a different cause of action involving a party
to the first case."[1] This is for the prevention of legal harassment and to prevent the abuse
of legal resources.
END QUOTE
.
25 http://en.wikipedia.org/wiki/Direct_estoppel
QUOTE
Direct estoppel
From Wikipedia, the free encyclopedia
The doctrine of direct estoppel prevents a party to litigation from relitigating an issue that
30 was decided against it, under certain circumstances. Specifically, direct estoppel applies
where the issue was decided as part of a larger claim which was finally decided, and estops
the issue from being redecided in another claim of the same lawsuit. Contrast collateral
estoppel, estops a claim from being redecided in another lawsuit.
END QUOTE
35 .
As I stated in previous correspondence;
.
Sorell v Smith (1925) Lord Dunedin in the House of Lords
QUOTE
40 In an action against a set person in combination, a conspiracy to injure, followed by
actual injury, will give good cause for action, and motive or instant where the act itself
is not illegal is of the essence of the conspiracy.
END QUOTE
.
45 Therefore, if the ATO or any of its employees pursues to harm me seeking to use purported
legislation regardless that I challenged them as to their validity then the conduct is perceived by
me as a deliberate attempt to harm me. This includes any refusal to refund moneys to me which
were unconstitutionally extracted from me as GST or otherwise, being by traders or otherwise
acting for and/or on behalf of the ATO.
.
QUOTE
Mr. HIGGINS:
10 and rails. That may be argued not to be a law dealing with one subject.
END QUOTE
.
While in the O’Meara case the Court argued about relating to “supply” reality is however that it
relates to the “supply” of certain goods and/or services. A supply for “bread” may not be taxed
15 with GST whereas a bar of chocolate might be. As such it is not the “supply” itself that
determines if GST is applicable but rather the product being it bread, milk, an apple, a post on a
land, a fence rail along the property, etc.
Indeed, during the GST debate the issue was that certain food should not be subjected to GST. It
was not about certain “supply” was not to be subjected to GST!
20 .
QUOTE
Sir JOHN FORREST: Do you expect to have everything your own way?
25 Mr. BARTON: I am not saying that: I am saying the very contrary. I am not going
largely into the practical conditions which may arise if the States Assembly or Senate is
allowed the power to amend Tax Bills. I hold rather strongly that if we are to have two
Houses, and intend to act upon the principles of responsible government, and conserve
those principles, we ought not to put in the hands of one House the ability to utterly destroy
30 the financial policy of the Government. The expenditure depends upon the taxation, and
if the taxation is so altered in its passage through a Second Chamber that the
expenditure, which is perhaps sanctioned upon the Estimates, or about to be
sanctioned upon the Estimates, proposed by the government is lessened, that right to
amend the Taxation Bill practically means the right to cut down the Appropriation
35 Bill, too.
END QUOTE
.
What is clear is that taxation Bills are for the financial year for which the Appropriation Bills are
applicable and not that somehow taxation Bills can go on forever. Hence, not a single taxation
40 legislation is valid after the financial year for which it was enacted expires unless the parliament
has subsequently legislated to apply it for the following financial year, on a yearly basis!
.
Extensive quotations of the Hansard has been provided for below as to give some “in context”
reflection of what the Framers of the Constitution intended.
45 .
QUOTE
Sir JOHN DOWNER.-

I think we might, on the attempt to found this great Commonwealth, just advance
one step, not beyond the substance of the legislation, but beyond the form of the
legislation, of the different colonies, and say that there shall be embedded in the
Constitution the righteous principle that the Ministers of the Crown and their officials
5 shall be liable for any arbitrary act or wrong they may do, in the same way as any
private person would be.
END QUOTE
And
10 QUOTE
Mr. DOBSON (Tasmania).-I am in sympathy with the clause, because I think, if we
are to keep pace with the march of the times, the Constitution Bill ought to contain a
direct declaration that the Commonwealth may be sued by a subject for a breach of
contract, or for a wrong done by any of its officials.
15 END QUOTE
And
QUOTE
Mr. OCONNOR.-I cannot say. The procedure now in our colony applies, not only to
20 contracts, but also, by judicial decisions, to wrongs. In all the colonies there are
provisions, wider or narrower, cutting down the prerogative right not to be sued. We must
all agree that the Commonwealth should so proceed that in any case in which a man has a
cause of action, whether on a wrong or a contract, his right should not be trampled upon by
the state any more than by an individual. I quite admit that in dealing with this matter we
25 are opening up a very large question indeed.
END QUOTE
And
QUOTE
30 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
35 Federal Parliament will be a sentry, and the whole constituency behind the Federal
Parliament will be a sentry.
END QUOTE
And
40 QUOTE
Mr. SYMON.-It is not a law which is ultra vires.
Mr. GORDON.-The honorable member will see that I am not declaring that any law
which is ultra vires is not ultra vires. I am simply limiting the area of attack.
Mr. SYMON.-The man who is ruined by it is not to take that point.
45 Mr. GORDON.-We must postulate of all our Parliaments that they will not pass
laws which are ethically indefensible.
END QUOTE
And
QUOTE
Mr. SYMON.-It is not a law if it is ultra vires.
Mr. GORDON.-It would be law by acquiescence. It would remain a law until it was
5 attacked.
END QUOTE
And
QUOTE
10 Mr. GORDON.-Even that embraces a very large body of rights, and the principle is the
same. We have to rely in many of our relations on the probity of the Attorney-General, on
the probity of the Parliament, or, to go further down, on the probity of the community.
Upon all these grounds I contend that the amendment is one that ought to be passed. It
leaves the whole executive power open to attack. Once a law is passed anybody can say
15 that it is being improperly administered, and it leaves open the whole judicial power
once the question of ultra vires is raised. Under the clause, as I have amended it, it will
not prevent the plea of ultra vires being raised where it is accompanied with the plea of a
conflict of law. If there is a state law and a Commonwealth law on the same subject, every
citizen is entitled to know which be should obey. If he joins a plea of ultra vires with a
20 plea of conflict of law, that ought to be heard.
END QUOTE
And
QUOTE
25 Mr. WISE.-If the honorable member had only moved this amendment when we first
met in Adelaide, and had carried it we should have been saved many months of
discussion. All that would have been necessary then would have been to frame a
Constitution in about six clauses, declaring that there should be a Commonwealth
Parliament, that the states Parliaments should remain, that the powers of the
30 Commonwealth Parliament should be whatever the states Parliaments allowed them
to be, and that the powers of the states Parliaments should be whatever the Federal
Parliament allowed them to be. That would have been our Constitution. The
amendment, as it stands, provides that whatever law may be passed, taking the first branch
[start page 1686] of it, by the Commonwealth, it is not to be declared ultra vires if the five
35 Attorneys-General of the several states agree that for any reasons of state they will wink at
any violation of the law, and allow any person affected injuriously by it to suffer.
END QUOTE
And
40 QUOTE
question-and the Constitution gives it no power to legislate in regard to that question-the
45 for our schools," and thus they might wink at a violation of the Constitution, while no
one could complain. If this is to be allowed, why should we have these elaborate
provisions for the amendment of the Constitution? Why should we not say that the
50 people at all? Why not leave this matter to the Ministers of the day? But the proposal

few minutes in discussing it.
END QUOTE
.
5 As such, officials who fail to act appropriately (including taxation officers) could be personally
liable if they are found to have acted in defiance of constitutional limitations, as further set out
below also. After all, if a objection against legislation is made then the “official” cannot ignore
this and proceed as if the objection doesn’t exist, as the moment the objection is made the
“official” is bound to act observing the rights of the objector.
10 Where the High Court of Australia itself indicated that Mr Gould could ignore unconstitutional
court orders (see below) then the Court clearly indicates that any person can disregard
compliance with any Court order that is unconstitutional. Likewise so as this document sets out is
compliance with legislation. If the legislation is ULTRA VIRES then it is “WITHOUT
LEGAL FORCE” and so a “nullity” and no taxation official can enforce it and neither any
15 Court. This, as the Courts can only operate within constitutional powers and not beyond it.
.
QUOTE
Mr. SYMON (South Australia).-
20 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
25 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
And
30 QUOTE
Mr. BARTON.-
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
35 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
40 in operation that the guarantees of freedom which it gives your people will not be
maintained; and so, in the highest sense, the court you are creating here, which is to be the
final interpreter of that Constitution, will be such a tribunal as will preserve the popular
liberty in all these regards, and will prevent, under any pretext of constitutional
action, the Commonwealth from dominating the states, or the states from usurping the
45 sphere of the Commonwealth.
END QUOTE
.
50 QUOTE Mr. ISAACS:
There is a line up to which concession may become at any moment a sacred duty, but to
pass that line would be treason; and therefore, when we are asked solemnly and gravely to
abandon the principle of responsible government, when we are invited to surrender the
latest-born, but, as I think, the noblest child of our constitutional system-a system which
has not only nurtured and preserved, but has strengthened the liberties of our people-then,
END QUOTE
5 .
QUOTE Mr. OCONNOR.-
10 case the Constitution will be above Parliament, and Parliament will have to conform
to it.
END QUOTE
.
I noted that the 29 February 2008 correspondence referred to the O’Meara v FC of T [2003]
15 FCA 217 case, which I down loaded from the ATO website and I noticed with interest how the
judge referred to the governments meaning instead of what the Framers of the Constitution
intended! Likewise the judge referred to taxation matters of other countries and by this totally
seems to ignore the fact that the Commonwealth of Australia is unlike any other legal entity in
that it is not a dominion, country, etc, but a “POLITICAL UNION” and as such the application
20 of taxation legislation that may be permissible in any country, including in the UK may not at all
be possible in the “POLITICAL UNION” the Commonwealth of Australia.
.
The error of trying to translate what the “common meaning” is of the Government or the people
is not relevant as what is relevant is what the meaning was of the Framers of the Constitution!
25 .
QUOTE Mr. BARTON.-
this Constitution is to be worked under a system of responsible government
END QUOTE
30 And
QUOTE Mr. BARTON.-
We have simply said that the guarantee of the liberalism of this Constitution is
responsible government, and that we decline to impair or to infect in any way that
35 guarantee.
END QUOTE
And
QUOTE Mr. BARTON.-
40 Of course it will be argued that this Constitution will have been made by the
Parliament of the United Kingdom. That will be true in one sense, but not true in
effect, because the provisions of this Constitution, the principles which it embodies,
and the details of enactment by which those principles are enforced, will all have been
the work of Australians.
45 END QUOTE
.
Now, take for example the issue of “citizenship” where the Commonwealth of Australia has
legislated for “Australian citizenship” as some nationality.
It is unconstitutional because not what the Commonwealth of Australia purport to make from it
50 but the true meaning as was intended by the Framers of the Constitution is relevant.
For example;
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
And
5 Lets doe an English reading test as to the meaning of the following;
.
QUOTE Mr. TRENWITH (Victoria).-
But we are at present creating a dual citizenship-retaining the rights of citizenship which
10 the inhabitants already possess, and, in addition, conferring what I think most people will
be even more proud of, the citizenship of the Commonwealth of Australia.
END QUOTE
And
15 QUOTE
Mr. TRENWITH (Victoria).-
We know pretty clearly what constitutes a citizen of Great Britain. We know what
constitutes a citizen of our various states. But we are at present creating a dual citizenship-
retaining the rights of citizenship which the inhabitants already possess, and, in addition,
20 conferring what I think most people will be even more proud of, the citizenship of the
END QUOTE
And
25 QUOTE 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
30 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.
END QUOTE
And
35 QUOTE
Dr. QUICK (Victoria).-I understood that, under the Federal Constitution we are creating,
we would have a dual citizenship, not only a citizenship of the states, but also a
citizenship of the higher political organization-that of the Commonwealth. It seems now,
from what the Hon. Mr. Barton has said, that we are not to have that dual citizenship; we
40 are to have only a citizenship of the states.
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
And
QUOTE
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
50 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
5 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.
10 Question-That the proposed new sub-section (31A) be inserted-put.
The committee divided-
Ayes ... ... ... 15
Noes ... ... ... 21
Majority against Dr. Quick's
15 .
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.
20 END QUOTE
Again;
QUOTE
I say that our real status is as subjects, and that we are
all alike subjects of the British Crown.
25 END QUOTE
.
And now when the Framers of the Constitution referred to citizenship in various forms, but
meaning anything but “nationality”, considering that a British subject includes an “alien” who
resides in a territory under British control and by this is subject to British law applicable in that
30 territory;
.
13-02-1890 Re; Australian citizen
10-03-1891 Re; British subject
13-03-1891 Re; Australian citizens
35 17-03-1891 Re; British subject
Re; dual citizenship
26-03-1897 Re; citizen of the Commonwealth
29-03-1897 Re; dual citizenship
40 30-03-1897 Re; federal citizen
Re; citizen of the Commonwealth
45 02-04-1891 Re; British subject
50 15-04-1897 Re; dual citizenship
Re; Commonwealth citizenship
5 Re; British subject
10 28-01-1898 Re; Australian citizenship
Re; Commonwealth citizens
08-02-1898 Re; Australian citizenship
15 Re; Commonwealth citizenship
Re; federal citizenship
Re; British subject
20 15-02-1898 Re; citizen of the Commonwealth
Re; British subject
35 04-03-1898 Re; citizen of the Commonwealth
10-03-1898 Re; Australian citizenship
.
As such, “Australian citizenship” is constitutionally meaning “Commonwealth citizenship”
40 derived from “State citizenship” a political status, nothing to do with nationality. In fact the
Constitution only allows to Commonwealth of Australia to legislate as to “naturalization” and
not as to “nationality”! There is a considerable difference in meaning.
.
Now, as to the High Court having made certain decisions may be useful for the ATO against
45 those whom the decisions were pronounced but to me have no meaning.
As the High Court of Australia itself in HCA27 of 1999 Wakim made clear;
Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi
[1999] HCA 27 (17 June 1999)
QUOTE
50 For the reasons that I gave in Gould, I am also convinced that the Jurisdiction of Courts
(Cross-vesting) Act 1987 (Cth) and the Jurisdiction of Courts (Cross-vesting) Act 1987 of

each of the States are also invalid in so far as they purport to give the Federal Court of
Australia jurisdiction to exercise State judicial power.
END QUOTE
.
5 Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi
[1999] HCA 27 (17 June 1999)
QUOTE
34 It would be very convenient and usually less expensive and time-consuming for
litigants in the federal courts if those courts could deal with all litigious issues arising
10 between the litigants, irrespective of whether those issues have any connection with
federal law. From the litigant's point of view that is saying a great deal. But
unfortunately, from a constitutional point of view, it says nothing. The deficiencies and
complexities of federal jurisdiction have been pointed out many times before, never more
powerfully than by Mr Owen Dixon KC in giving evidence before the Royal Commission
15 on the Constitution in 1928[40]. The inability of the federal courts to exercise cross-
vested State jurisdiction in the manner provided for under the present legislation simply
shows another deficiency in the system. I do not think that it can be seriously doubted
that, if Australia is to have a system of federal courts, the public interest requires that
these courts should have jurisdiction to deal with all existing controversies between
20 litigants in those courts.
The function of the judiciary in constitutional cases
35 However, the judiciary has no power to amend or modernise the Constitution to

give effect to what the judges think is in the public interest. The function of the judiciary,
including the function of this Court, is to give effect to the intention of the makers of the
25 Constitution as evinced by the terms in which they expressed that intention. That
necessarily means that decisions, taken almost a century ago by people long dead, bind
the people of Australia today even in cases where most people agree that those decisions
are out of touch with the present needs of Australian society. Judge Easterbrook has
pointed out that a written constitution "is designed to be an anchor in the past. It creates
30 rules that bind until a supermajority of the living changes them."[41] In the same article,
he pointed out[42] that a person cannot logically deny the power of the past to rule
today's affairs and at the same time assert that Art III of the United States Constitution
(the equivalent of our Chapter III) still binds. Judicial review of the constitutional validity
of legislation "depends on the belief that decisions taken long ago"[43] still bind today's
35 society.
36 The Constitution, although enacted in 1900, is binding today by reason of the tacit assent
of the people of Australia to its continued operation. Few, if any, constitutional lawyers
now accept Thomas Jefferson's claim that a Constitution enacted by one generation
cannot bind subsequent generations. Jefferson first put forward this claim in a letter to
40 James Madison which was written in Paris in September 1789. The claim was based on
Jefferson's famous aphorism "that the earth belongs in usufruct to the living". Jefferson
wrote[44]:
"The question Whether one generation of men has a right to bind another,
seems never to have been started [stated?] either on this or our side of the
45 water. Yet it is a question of such consequences as not only to merit
decision, but place also, among the fundamental principles of every
government. The course of reflection in which we are immersed here on
the elementary principles of society has presented this question to my

mind; and that no such obligation can be so transmitted I think very
capable of proof.
I set out on this ground, which I suppose to be self evident, 'that the earth
belongs in usufruct to the living': that the dead have neither powers nor
5 rights over it." (emphasis in original)
END QUOTE
.
Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi
[1999] HCA 27 (17 June 1999)
10 QUOTE
Re Brown & Ors; Ex Parte Amann & Anor
1. So far as Mr Amann is concerned, I agree with Gummow and Hayne JJ that there is no
basis upon which this Court can properly refuse to issue a writ of prohibition. I am unable
to agree, however, that the Court should refuse prohibition to Mr Gould either on
15 discretionary grounds or by reason of res judicata or issue estoppel. Those doctrines are
common law doctrines. As this Court made plain in Lange v Australian Broadcasting
Corporation[98], the common law cannot be at odds with the Constitution and must
conform with it. Notwithstanding our decision in Gould v Brown[99], which concerned
Mr Gould, the Court is now, by a substantial majority, of the opinion that the
20 Corporations Act 1989 and the Corporations (New South Wales) Act 1990 cannot
constitutionally invest State judicial power in the Federal Court of Australia. The orders
made in Gould v Brown have no constitutional effect. For constitutional purposes, they
are a nullity. No doctrine of res judicata or issue estoppel can prevail against the
Constitution. Mr Gould is entitled to disregard the orders made in Gould v Brown. No
25 doubt, as Latham CJ said of invalid legislation[100], "he will feel safer if he has a
decision of a court in his favour". That is because those relying on the earlier decision
may seek to enforce it against Mr Gould.
2. Where a litigant has unsuccessfully challenged a legislative provision on constitutional

grounds and a later decision reverses the earlier holding, the Court has the discretion
30 whether to extend time to allow the litigant once again to challenge the legislation.
Ordinarily in those circumstances, the discretion should be exercised in favour of the
citizen. Cases may arise where it is unfair to the defendant to allow a fresh challenge to
occur having regard to the lapse of time and a change of circumstances on the part of the
defendant. But such matters are not decisive in the present case. Furthermore, the liberty
35 of Mr Gould is involved. And it would be incongruous for the Court to quash orders
against Mr Amann but not against his fellow director, Mr Gould.
END QUOTE
.
Again;
40 Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi
[1999] HCA 27 (17 June 1999)
QUOTE
No doctrine of res judicata or issue estoppel can prevail against the Constitution. Mr Gould
is entitled to disregard the orders made in Gould v Brown. No doubt, as Latham CJ said of
45 invalid legislation[100], "he will feel safer if he has a decision of a court in his favour".
That is because those relying on the earlier decision may seek to enforce it against
Mr Gould.
END QUOTE
.
As such, the Court itself held that one can disregard unconstitutional court orders, albeit it would
be better if there was a judicial decision in favour of the person. “That is because those relying
on the earlier decision may seek to enforce it against Mr Gould.”
.
5 Al-Kateb v Godwin [2004] HCA 37 (6 August 2004)
QUOTE
169The evolution of constitutional law: A majority of this Court may not yet have accepted
the interpretive principle that I favour. However, in 1904, a majority did not accept the
principle later upheld in Amalgamated Society of Engineers v Adelaide Steamship Co
10 Ltd[210] as a fundamental interpretive principle of the Constitution. It has been applied
ever since. In 1921, a majority of this Court did not accept the interpretation of the
structure of the Constitution (and of the requirements of Ch III) adopted in 1956 in R v
Kirby; Ex parte Boilermakers' Society of Australia[211]. In Gould v Brown[212] a
majority could not be found to strike down part of the State cross-vesting legislation.
15 Following changes to the membership of the Court, a majority was assembled little more
than one year later in Re Wakim; Ex parte McNally[213]. There are many similar cases.
170The understanding of the Constitution in this Court is constantly evolving[214]. The

interpretive principle that I have expressed is but another step in the process of evolution.
END QUOTE
20 .
I do not for a moment agree with the assertion “The Tax Office is obliged to apply the laws
passed by the Parliament on the basis that they are constitutional valid.”
.
This is the same kind of nonsense for a soldier to commit murder because of being instructed to
25 do so! And this the Neurenberg trials made clear is unacceptable.
.
If the legislation were to dictate that the Tax Commissioner may burn down a property if he
deems a taxpayer failed to pay assessed tax would you then comply with this kind of provision?
.
30 Ex Parte Lovell; Re Buckley (1938) 38 S.R. N.S.W. 155 at 158; 55 W.N. 63 Jordan C.J.
QUOTE
“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.”
35 END QUOTE
. .
Woolworths v Crotty (1942) 66 CLR 603 at 618 (per Latham CJ)
QUOTE
“The act should be construed according to its intention of the legislature. Where the legislature
40 has stated the mischief for which the common law did not provide, consideration of the nature
and extent of that mischief is relevant to the interpretation of the act.”
END QUOTE
.
While I noted that in the O’Meara decision it was claimed that the GST applies to “supply” but
45 this cannot be deemed correct on constitutional basis as the Framers of the Constitution made
this very clear. It is not for the Court to try to bring within the scope of constitutional powers
something that was specifically not permitted by the Framers of the Constitution!
.
50 QUOTE Mr. BARTON.-

Of course it will be argued that this Constitution will have been made by the
5 the work of Australians.
END QUOTE
.
QUOTE Mr. SOLOMON.-
10 We shall not only look to the Federal Judiciary for the protection of our interests, but
also for the just interpretation of the Constitution:
END QUOTE
.
15 QUOTE
20 END QUOTE
.
QUOTE Mr. OCONNOR.-
25 Constitution. Our own Parliaments do as they think fit almost within any limits. In this
to it.
END QUOTE
.
QUOTE Mr. GORDON.-
The court may say-"It is a good law, but as it technically infringes on the Constitution
we will have to wipe it out."
END QUOTE
35 .
The following applies as much to Federal laws of the Commonwealth of Australia as it does to
federal laws in the USA;
http://familyguardian.tax-
tactics.com/Subjects/LawAndGovt/ChallJurisdiction/AuthoritiesArticle/AuthOnJurisdiction.htm
40 QUOTE
 The general misconception is that any statute passed by legislators bearing the appearance
of law constitutes the law of the land. The U.S. Constitution is the supreme law of the
45 as follows:
The general rule is that an unconstitutional statute, though having the form and name of
law, is in reality no law, but is wholly void, and ineffective for any purpose; since
unconstitutionality dates from the time of its enactment, and not merely from the date of
the decision so branding it. An unconstitutional law, in legal contemplation, is as
50 inoperative as if it had never been passed. Such a statute leaves the question that it
Since an unconstitutional law is void, the general principles follow that it imposes no
5 operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to
the fundamental law of the land, it is superseded thereby.
it.
END QUOTE
10 Sixteenth American Jurisprudence
.
Quick & Garran's "Annotated Constitution of the Commonwealth of Australia" more accurately
and more meaningfully says that;
15 QUOTE
"A law in excess of the authority conferred by the Constitution is no law; it is wholly
void and inoperative; it confers no rights, it imposes no duties; it affords no protection.".
END QUOTE
.
QUOTE Mr. GORDON.-
Once a law is passed anybody can say that it is being improperly administered, and it
leaves open the whole judicial power once the question of ultra vires is raised.
END QUOTE
25 .
Again;
QUOTE
and it leaves open the whole judicial power once the question of ultra vires is raised
END QUOTE
30 .
QUOTE
Mr. GORDON.-It would be law by acquiescence. It would remain a law until it was
35 attacked. It might injure a few individuals, but that might be to the benefit of the whole.
Or if it were not, the party whose area of power was infringed on would attack if.
END QUOTE
Again;
QUOTE
40 It would remain a law until it was attacked.
END QUOTE
.
Clearly, once I objected to the constitutional validity of the proclamation, writ(s), election, etc
then from that moment it was and remained ULTRA VIRES.
45 .
What seems to misunderstood is that lawyers tend to think that unless the High Court of
Australia declares a legislation to be ULTRA VIRES it is legally enforceable.
The truth is that any legislation that is subjected to a claim of being ULTRA VIRES is so and
remains to be so unless the Courts declare it to be INTRA VIRES.
50 .
And, in that case with constitutional issues, one hardly can consider ill-conceived judgments that
failed to appropriately consider what the intentions were of the Framers of the Constitution!
.
Many quotations I use may never ever having been previously been considered by any Court
5 because unlikely did any judge spend years to research so extensively certain constitutional
issues.
.
I may state, that in 1994 I then challenged the application of the purported Cross Vesting Act but
was defeated by Dawson J in the High Court of Australia being that in 1999 in the Wakim case
10 the Court finally then held it was unconstitutional. As such, I am well aware that the Court make
one ruling one day and a contradictive ruling later. It all depends on who are the judges and if
they consider matters appropriately and/or if there is additional material that may expose the real
intentions of the Framers of the Constitution.
.
15 I noticed that the 29 February 2008 correspondence stated “However it is not the ‘private final
consumer’ or end user of the goods and services who is legally obligated to account to the TA
Office for GST. That burden is imposed on those businesses making ‘taxable supplies’ which are
registered with the Tax Office for GST. The question then arises when is a business a business?
Also, is an individual selling goods in a garage sale conducting a business. If a business gives
20 away something for free, which ordinary has GST applied then is the business owner still
required to pay GST on the items that were given away for free? For example, if someone
produces records and then gives away free copies, then even so the receiver does not pay for it
they nevertheless are provided with a “supply” of goods and services if one is to consider the
argument in O’Meara!
25 .
Is then the “Pro bono” (Pro bono publico) services provided (for the public good) subject to
GST?
After all the service is being provided as a “supply”. The question then is that if the “supply” of
service is provided for free, but after the party assisted has won the case and the Court then
30 award the person who provided the “pro bono” service certain compensation for cost, then the
compensation is not because of the service provided as they were offered “pro bono”. Hence, the
compensation made was only because of a court order and not a right for services “supplied”.
.
Over the decades at times lawyers of an opponent party requested me to assist an unrepresented
35 party in a court hearing then going on, or the magistrate or judge would request me to assist an
unrepresented litigant at the bar table. This was always by me “pro bono” but nevertheless a
“supply” of service was rendered in that I assisted a person in their litigation, even so it was free
of charge. You see, this is the problem when one seek to tax the “supply” rather then the sale of
services or the sale of goods, the definition of “supply” simply has a total different meaning then
40 the sale of goods or services for financial rewards.
.
In my view it would be sheer and utter nonsense to claim that the “supply” of services is
conditional to a payment being made, as then the issue of payment has to be defined as to what
kind of payment. Some people exchange “supply” services, without any monies changing hands.
45 Some people, such as grand parents look after their grand children without charge and then their
children may provide free accommodation for the grandparent to be able to look at their
residence after the children. Both are providing, so to say, a “supply” of service.
.
What became clear to me was that the O’Meara case was not decided as to what the framers of
50 the Constitution intended but what the judge fancied to rely upon was occurring overseas and
some judgments made by other judges. Now, to me it seems to have been more appropriate to
deal with matters as to the intentions of the framers of the Constitution!
.
When the 29 February 2008 correspondence refers to “‘private final consumer’ or end user of
goods and service” then this also requires to be asked how does a business know if the purchaser
is a to “‘private final consumer’ or end user of goods and service” or is in fact merely using the
5 goods/services to “supply” goods or services to another person?
.
For example, a person who purchase blank CD’s for purpose of recording to be “supplied” to
another person clearly then is not the end user, yet still ends up having to pay GST and then may
have to charge GST over the whole services and by this the GST being paid is by far in excess of
10 what the legislation may call for.
.
Another matter is that where I purchase a item (power point) in a store and I am charged GST
and so paid this then what happen when the item is used by an electrician who installs it. Is he
having to charge 10% over the item I provided but he provide the service for by installing it?
15 I found that by purchasing the items myself it was a lot cheaper then having the electrician
purchasing it as he charges for the GST a lot more.
.
Likewise, where the 19 February 2008 correspondence indicates that on a Sunday market not
likely there is a large turnover to make the cut off point. Well, some stall holders may be making
20 perhaps a thousand dollars or more an hour! Some several thousand dollars an hour. Now, no
GST receipts are provided and so no records either of any sales made. Where I am not the end
user how then can I claim back any GST charged but not shown on any receipt? Neither knowing
if any GST charges is being paid to the ATO?
.
25 As I indicated previously we have de facto tax collectors who are untrained applying GST and
customers (even if not being end users) have generally no perception as to what GST is being
charged or not and if the GST charged actually does make it to the ATO and so into the
Consolidated Revenue.
.
30 Neither do I accept that the Commonwealth of Australia has any constitutional powers to turn
business owners to perform slave labour by being de fact tax collectors!
.
QUOTE
35 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
40 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
45 Commonwealth in the election of representatives, we have done all that is necessary. It is
better to rest there than to plunge ourselves into what may be a sea of difficulties. We do
not know to what extent a power like this may be exercised, and we should pause before we
take any such leap in the dark.
END QUOTE
50 .

As a matter of fact the Framers of the Constitution made clear that “liberty” was not one of the
constitutional powers the Commonwealth could deal with. Hence any “accountability” to the tax
Office to pay GST may be a form of slavery, as they have to collect it where possible from the
end user as it is not a GST that applies to them personally, as otherwise “pro bono” supply of
5 service would also be GST applicable.
.
My wife and myself had this incident where I happen to give a pauper (asking him if it was
alright to do so) a few dollars. Thereafter, my wife held I better go back and give some more. So,
I gave the man another $50.00. No services was provided for this. I wonder if this now can be
10 argued to be subject to GST? For the record, months later I was taking out some of my children
when a well dressed man approached me asking if I wanted the money back. I declined. He
explained that he was the pauper and that having given him the money changed his life
dramatically as he was not only able to pay for a nights accommodation but by this happened to
get a job and this changed his life. My response was; “Assist others as I assisted you”. This has
15 been my motto for decades. You see, this whole stupid issue about “supply” is utter and sheer
nonsense, because if handing over moneys is also a “supply of service” then the banks will have
to charge GST whenever you get paid out moneys, as you do not get your own money back but
may get the equivalent to what you have paid in minus what they rob in charges, etc.
Now, the problem then is if you charge a person for any bank fees incurred to assist that person
20 then this is not a service I would have provided but rather being, so to say, seeking compensation
for the value of money I was robbed by the bank. Hardly a service provided and so why then
should GST be applied to the end user?
Then where is the difference also if a person is a PAYE wage earner or is a self-employed
person? Both are providing a “supply” of service. Both can provide identical service but the
25 difference being one is full time employed as a wage earner and the other may be full time
employed as a self-employed person!
.
If a greengrocer gives me or anyone else, such as an apple to eat for the taste then is this a
“supply” that is subject to GST or not?
30 Now, if the greengrocer provides the apple under the condition that if I like the taste then I am to
pay one dollar for the apple, is that then a “supply” or in fact the “supply” is not relevant but the
reality is the “sale” of the apple, if the is a financial reward or otherwise in return? If for
example, the green grocer gives me a kilo of apples, free of charge, so to say, because I happen
to have fixed his computer for no charge (for free) then is the “supply” of service to fix the
35 computer, without intend for any kind of reward, never the less a “supply” of goods under the
GST or is it not taxable by GST, regardless that the greengrocer unexpectedly gives me one kilo
of apples as his way to thank me?.
We then have the problem that some shopping trolleys only can be used if one insert a coin (a
dollar or two dollars mostly) and then the chain is released. Now, when I return the trolley to a
40 certain holding area I can retrieve the trolley. The question then is was this a “service” provided
by a company that I can use their trolley, regardless that I may not even purchase anything in
their particular store, taxable under GST or not. If then children go around collecting trolleys
because they want to make some pocket money, and then in the process collect the coins is this
then a “supply” of service by them even so the person who paid the coin into the slot has no
45 contractual arrangement by merely leaving the trolley where his/her car was parked?
Can it be argued that the store who provide the “supply” of goods” (the trolley) being for
payment of one dollar or two dollars and this is only refundable if the trolley is returned to a
certain location therefore has provided a “supply” of service that is taxable under the GST, this
even so the store itself may never collect the money?
50 Indeed, we then have that some shops requires the payment of a dollar coin or more to have a
trolley released from a holding bay, such as at airports and certain shopping centre stores, and
one can only collect the moneys back if one return the trolley or for that matter any other trolley
to that store, as then a machine automatically refunds the money regardless if it is the same
person who paid for the release of the trolley or someone else. And at times, don’t they always
do one may ask, the darn machine refuses to give a refund and then one has neither the trolley or
the monies back. It could not be argued that those airport machines collecting all those monies
5 would make less then $75.000.00 a year and yet no GST receipts is provided. Likewise, when
one goes to Jeff sheds, a Melbourne exhibition area, one can end up paying, say, $20.00 for
parking and yet not receiving any receipt in return. Businesses who display their wares there or
those who attend for business purposes as such are deprived of any GST accreditation because
the ATO failed to ensure a proper system is in place.
10 What seems to be obvious is that the principle governing issue is not at all the “supply” of
“goods” and “services” but rather it is narrowed down to the “sale” of “goods” and “services”
If a person is given a “present” one could hardly argue that this is subject to a tax called GST but
if the item was given as some alternative reward instead of a financial reward for providing
services or goods to the giver then it may be deemed there was a sale by barting (exchange of
15 goods/services for financial gain irrespective if monies does or does not exchange hands, so to
say).
Therefore, if grandma looks after the grandchildren while their parents are out to work but she is
not being paid for this “supply” of caring for the grandchildren even so she may benefit
otherwise such as having free coffee, tea, scones, etc then this would not be regarded as a
20 financial transaction that attracts GST. However, if grandma is providing the same services and
still getting the free cup of tea and scones but now is being paid an hourly rate to look after the
grandchildren then GST may be applicable. Not because the “supply” of service is different but
because there is a “financial gain” for the “supply” of service.
Therefore it is not the “supply” that is critical to it attracting GST even so the Parliamentarians
25 and the Courts may seek to device some backdoor approach to try to make out that the word
“supply” is the critical issue, but rather the real issue is if there is a “direct or indirect” financial
exchange” for “goods or services” rendered!
.
Grandma is still eating her scones and drinking her cup of tea but because of having to care for
30 her grandchildren she had to travel at considerable cost to get to the residence of the
grandchildren. Now she is being “refunded” the cost of travelling. The question then is if the
GST paid onto the “services” provided to her by the public transport companies is now GST
credits for the parents of the grandchildren, as while they were not the “end consumers” they
ended up in the end paying for it, or is it grandma who is entitled to the GST credits? Or is the
35 GST credits applicable to grandma only if she is being paid for caring for the grandchildren (as
such a financial transaction) but not if she is not paid for caring for the grandchildren?
.
We now have that grandma herself is working in a job and so her daughter ask if she can take
time of work too look after the grandchildren because the daughter has to go away for a trip and
40 cannot take the children with her. She promise the grandmother that she will compensate her for
any loos of income. So, the daughter goes away for a few days and grandma still on the cup of
tea and the scones, looked after the children. The daughter returns and gives her mother cash
being the equivalent of what the grandmother otherwise would have received after tax from
ordinary performing her work. Grandma is still out of pocket, albeit that is ignored, because of
45 working less hours it affects her long service leave entitlements, her superannuation contribution,
etc. As such grandma may have been enjoying the free cups of tea and scones but she suffered in
the end financially.
But, if now GST is to be applied to the “supply” of the service to care for the grandchildren then
poor grandma rather then to drink her cup of tea and the scones may have rather done better to
50 sell them to passer-by’s, albeit then attracting GST if she made the “scones” and as she made the
cup of tea she would have to pay for this GST also. Poor grandma who grew up in a world

without computers somehow now is obligated to pay GST to the ATO but no one told her to do
so.
.
Ok, I accept that ignorance is no excuse and if grandma goes out on a limb to sell something that
5 attracts GST then she simply has to cop the responsibilities. Likewise so the ATO has no excuse
that if it is appointed to administrate taxation then it must be aware what is constitutionally
applicable and not pursue a person for taxes that are unconstitutional. Ignorance is no excuse.
.
What we find however, in particular with Community Service Departments is that when it comes
10 to “wielding power” then anyone in the department will claim the right to make decisions
because they are employed by that Department, however, when something goes wrong with a
child, then everyone is seeking to excuse responsibility as they merely are employed and not
being the final decision maker as they do no more but act for the Government. That is why
children removed from their parents are ending up in prostitution on the streets because the
15 employees of the department are only about “wielding powers” against the parents but not that of
being “responsible” for having “wielded that power”.
.
It seems to me the ATO likewise seem to have employees who are all about enforcing their
“power” but when it comes to “responsibility” then they claim they are bound by “legislation” as
20 the murderous criminals did when they were held accountable for mass murder that they were
merely “following orders”. The comparison is that those seeking to “wield” powers in name
always will make their excuses to avoid “responsibilities”.
.
However, it is not that simple, as any ATO officer who seeks to enforce legislation has an
25 obligation to ensure that this is done appropriately and there is no excuse to claim that because it
is legislation it therefore is lawful.
.
To give an example. John Howard as purported Prime Minister authorised the armed murderous
invasion into the sovereign country Iraq. Constitutionally only a Governor-General has such a
30 power and only by first publishing in the Gazette a “DECLARATION OF WAR”. Section
24AA of the Crimes Act (Cth) specifically makes it an offence to act against a friendly nation.
On 19 March 2003, the very day of the armed murderous invasion, the High Court of Australia
for the third time refused to allow my application for mandamus/prohibition to proceed which
was against the armed murderous invasion upon constitutional grounds. It simply refused to
35 allow the applications to be accepted for filing despite that the framers of the Constitution made
clear the Court must hear such application within Section 75(v). As a matter of fact the seven
judges of the Court already had fraternized with the Governor-General, a defendant, and as such
their ruling was invalid for this also.
.
40 Now, while the Parliament has provided for legislation that the federal executive can authorise an
armed conflict, the reality is that this legislation is ULTRA VIRES because there is no
constitutional powers for this.
Hence, every Member of parliament and every soldier who supported the armed invasion and
even the Governor-General ultimately can be held accountable before the Courts for defiance of
45 constitutional provisions and principles.
.
Contrary to common belief it does not matter if the Queen in the UK allows the Prime Minister
to go to war without needing Her Majesty’s consent, this as the powers of the British Minister are
unlimited within his/her portfolio. However, within the Commonwealth of Australia the Minister
50 is limited to what is for the “peace, order and good government” and while the High Court of
Australia has purported otherwise, something you get when uneducated lawyers in constitutional
matters are appointed to the bench where even a judge refused to hand down a decision claiming
not to know the constitutional issue in the case, but it does not mean that the judges decisions
then has any judicial value, as the judges are bound to interpret the constitution as to the
intentions of the Framers of the Constitution and not how they fancy for themselves the
Constitution ought to be applied.
5 .
In the O’Meara case the judge concerned was not particularly interested, as it appeared to me, to
consult the Hansard records of the Constitution Convention Debates as to elicit for himself what
actually Section 53 and 55 are standing for. The same with the High Court of Australia in its
decision in the following examples
10 Chapter 007A The Great Deception
This was previous set out in my 071026 correspondence, and I refer to this!
.
It must be clear that the judges of the High Court of Australia are making not just utter ridiculous
statements but highly dangerous claims that somehow the Parliament could legislate to have
15 every blue eyed baby killed where this utter nonsense may one day incite some twisted minded
power user to pursue something like this, as we already had with the unconstitutional murderous
invasion into Iraq.
.
Judges are always eager to quote Authorities, as if this get them over the problem rather then to
20 do some real research themselves and show they are in their own right competent to adjudicate.
Hence, we find judge referring to past decisions as if they are the rule of law. The problem we
face is that for example in the O’Meara case the judge referred to.
QUOTE
State Chamber of Commerce and Industry & Ors v Commonwealth of Australia
25 /atolaw/view.htm?locid='JUD/87ATC4745'&PiT=9999123123595887 ATC 4745 at 4748-4749;
(1987) 163 CLR 329 at 342-343. Again, the objective is to prevent tacking or packaging of
legislative measures.
4. In
Harding v FC of T (1917) 23 CLR 119 Isaacs J described s 55 of the Constitution in the
30 following terms (at 134):
``The prohibition... was not inserted as a trap for the Commonwealth Legislature, and
through them for the Nation. It was intended as a genuine protection to the people of the
Commonwealth, by guarding the Senate from compulsive acquiescence in one tax by the
moral necessity of passing another distinct tax. To secure that end the test is unity of
35 subject matter of taxation in each measure, so that each proposed tax may be fairly
considered on its merits.''
END QUOTE
.
Now let’s have a look at the 1917 ruling without actually reading it. Yes, this can be done.
40 .
When the Framers of the Constitution framed the Constitution they made clear that the
provisions of the Constitution had to be interpreted by what they had stated during the Debates,
the principles embedded, etc. As such they made also clear that the Courts would have to consult
the Hansard to be able to determine what their intentions were in framing the Constitution.
45 .
Now, in about 1904 after the High Court of Australia was created there were judges sitting at the
bench of the High Court of Australia who basically, so to say, didn’t want to be chained to the
Hansard as by now they had the opportunity to express constitutional powers they desired all
along but were defeated during the Constitution Conventions and so ruled that the hansard could
50 not be used to interpret the Constitution. Obviously this was itself unconstitutional but you
always get a treasonous person in the midst of judges who is not interested about “JUSTICE” but
about “WIELDING POWER”. Others then will follow blindly. What we therefore had was that
in 1904 the High Court of Australia banned the usage of the Hansard and as such this remained
to be so until about 1992. By then all decisions handed down regarding constitutional matters had
omitted appropriate consideration for what really the Constitution stands for. No wonder the true
5 meaning and application of “citizenship” was therefore contaminated with a LEGAL FICTION
of “nationality”!
.
The truth is that the Framers of the Constitution made clear that a tax applicable to one item
cannot be in the same (final) tax legislation containing taxation on another item. You can call it
10 GST, supply tax or whatever but it still offend the intentions of the Framers as it is a tax that
applies to different items. If the “supply” was the issue then the Framers of the Constitution
didn’t have to ponder about the different items at all. The fact that they did underlines that
whatever alternative name it may be given in the end it is a tax on more then one item and that is
the end issue. As like the word “citizenship” it is used now in a common language as portraying
15 to be a nationality but only because the Commonwealth did so by robbing unconstitutionally the
States of its legislative powers. Now, as like the “citizenship” issue it is and remains
unconstitutional.
.
Sure there was a protection that the Senate could not be bullied into having to pass
20 unconstitutional legislation but also that where the senate was not aware of any conflict then the
Constitution itself made it prohibitive to have any taxation applying to more then one item.
.
The Framers of the Constitution were therefore not only concerned to shield the process in the
Senate for it not being forced to approve Taxation Bills that it held to be unconstitutional but also
25 that even if the senate passed a Tax Bill not realising there was a constitutional conflict then the
legislation would still be ULTRA VIRES and of no legal force because it related to more then
one item.
.
Because the intentions of the framers do not apply to other countries in regard of which the judge
30 in the O’Meara case refers to, it is therefore totally absurd for the judge to refer to whatever
applies or may not apply in any other legislative environment. If anything it underlines the judge
lacked competence to appropriately deal with the GST issue.
.
It is absurd to argue that somehow a High Court decision is required to nullify a legislation as the
35 line of argument of this in itself is an absurdity.
.
Legislation is unconstitutional not because it is so declared by the High Court of Australia but
because it was unconstitutional in the first place. The High Court of Australia has no
constitutional powers to declare any legislation or part thereof unconstitutional if in fact it is
40 constitutionally within the Parliaments power to legislate. What the High Court of Australia
therefore only can do is to confirm or to deny the constitutional validity of certain legislation
objected against. And, as the composition of the bench changes it may changes its views about
this also.
.
45 This is also why it opposed my applications, as it also relied upon that “citizenship” was not a
constitutional power for the Commonwealth and the judges were well aware that the validity of
their own appointments were in question. As such, railroading my applications was the
alternative power wielding exercise. The fact that as result hundreds of innocent people were
slaughtered by the masses by an unconstitutional armed murderous invasion seemed not to be the
50 least of their concerns.
.

I could devise a test on constitutional issues and have absolutely no doubt that each and every
judge of the High Court of Australia would fail the test, this because of the nonsense I come
across in the judgments, and WorkChoices 14-11-2006 decision is one of them makes it clear
they lack a proper understanding and comprehension of what is constitutionally applicable. The
5 Sure v Hill is another example. The moment I commenced to read the 14-11-2006 judgment
about WorkChoice legislation it triggered in me that it was sheer and utter nonsense who the
Court presented its judgment..
What the Court did was to not rely specifically on all relevant details/information contained in
the Hansard records but to single out some statements as to try to make it (the legislation)
10 constitutional viable.
.
A clear example is that for example the judges omitted some of the following relevant details in
their reason of judgments;
.
QUOTE Mr. SYMON.-
The relations between the parties are determined by the contract in the place where it
occurs.
END QUOTE
20 And
QUOTE
Sir EDWARD BRADDON (Tasmania).-
We have heard to-day something about the fixing of a rate of wage by the federal
25 authority. That would be an absolute impossibility in the different states.
END QUOTE
And
QUOTE
30 Mr. BARTON: If they arise in a particular State they must be determined by the
laws of the place where the contract was made.
END QUOTE
And
35 QUOTE
Mr. BARTON.-We do not propose to hand over contracts and civil rights to the
Federation, and they are intimately allied to this question.
END QUOTE
And
QUOTE
Sir JOHN DOWNER.-
The people of the various states make their own contracts amongst themselves, and if in
course of their contractual relations disagreements arise, and the state chooses to
45 legislate in respect of the subject-matter of them, it can do so.
END QUOTE
.
Now this was on the very same day the judges referred to other parts of the Hansard records.
.
50 As such, there was no balanced presentation of the intention of the Framers of the Constitution
but a one side view to pretend that the legislation was constitutionally valid.

.
Because I researched the Hansard records extensively, and as such fell as if I was part of the
framers, it gives me the added benefit not just being able to read what is written but to have the
feeling that some High Court of Australia judgment is wrong in argument and then I search back
5 for the right Hansard debates to find the part that support what I held was wrongly argued.
A statement made by one of the delegates may have no meaning whatsoever to an average reader
who is not aware what the Delegate is eluding to. Hence, having a comprehensive knowledge of
what transpired in the debates you can then discover matters otherwise unbeknown to the average
reader.
10 .
To give an example.
The 1967 con-job referendum was purportedly to give Aboriginals equal rights in voting, etc.
What was apparently never understood was that the framers of the Constitution held that for
Commonwealth purposes if a Colony (now State) was provided with franchise then Section 41 of
15 the Constitution guaranteed the Aboriginal franchise in federal elections. Indeed, albeit perhaps a
few hundred, in the first federal election Aboriginals who had State franchise did vote in the first
federal election. What however occurred was that unconstitutionally the White Only legislation
was introduced to rob Aboriginals of their voting rights. Now, instead of this being argued to be
unconstitutional the masses fought to get Subsection 51(xxvi) amended. No one seemed to be
20 aware that Section 51(xxvi) was for racial discrimination against an “inferior” “coloured race”!
Indeed, the Racial Discrimination Act 1975 (Cth) is unconstitutional as it does not fit in the
ambit of legislative powers of Subsection 51(xxvi)! Likewise the Aboriginal and Torres Strait
Islanders Act is unconstitutional as it deals with more then one race!
Neither what electors were made aware of was that the moment any legislation is enacted in
25 regard of a particular “race” within Subsection 51(xxvi) then all people of that race looses their
citizenship (including franchise)!
.
Another example is the absurd 1999 REPUBLIC referendum. There is no Section 128 of the
(federal) Constitution referendum powers to turn the Commonwealth of Australia into some
30 REPUBLIC.
Dang, Ex parte - Re MIMA M118/2001 (18 April 2002)
QUOTE
Office of the Registry
35 Melbourne No M25 of 2001
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 18 APRIL 2002, AT 10.17 AM
40 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
45 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.
END QUOTE
50 And

Dang, Ex parte - Re MIMA M118/2001 (18 April 2002)
QUOTE
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
5 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?
END QUOTE
And
10 Dang, Ex parte - Re MIMA M118/2001 (18 April 2002)
QUOTE
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 - - -
15 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.
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
20 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.
25 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.
MR MAXWELL: Exactly so.
END QUOTE
.
30 The following is an extract of my successful UNCHALLENGED appeals where I raised
constitutional matters considerably. The Court upheld the appeals without any reservation!
QUOTE 19-7-2006 ADDRESS TO THE COURT
Shaw v Minister for Immigration and Multicultural Affairs
35 72
9 December 2003
B99/2002
QUOTE
40 of his position is his classification as an alien for the purposes of HYPERLINK
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
45 statutory expression. Secondly, and more fundamentally, if "British subject" was being
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

END QUOTE
Hansard 2-3-1898 Constitutional Convention Debates
QUOTE
Mr. BARTON.- I did not say that. I say that our real status is as subjects, and that we are
5 alike subjects of the British Crown.
.
END QUOTE
.
10 QUOTE Mr. MUNRO:
. I am proud of being a citizen of the great British empire, and shall never fail to be
proud of that position.
.END QUOTE
.
QUOTE Mr. HOLDER:
because I take it that the legal bonds which bind us to the mother-country, to the
great British Empire,
20 END QUOTE
.
QUOTE Mr. BARTON:
The association of the Queen with the action of the commonwealth is distinct, and is
25 firmly embedded in the whole bill. If that is done, there can be no association of the
idea of republicanism with this bill.
END QUOTE
.
30 QUOTE
Mr. BARTON.-Yes; and here we have a totally different position, because the actual
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
35 the subjects confided to the Commonwealth.
END QUOTE
.
QUOTE Dr. QUICK.-
40 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.
END QUOTE
45 .
QUOTE 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
50 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
5 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?
END QUOTE
And
10 QUOTE
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
15 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.
20 END QUOTE
And
QUOTE
Mr. BARTON (New South Wales).-If it is a fact that citizens, as they are called, of each
25 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.
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
30 by using the words "citizens of every part of the Commonwealth" or "each part of
the Commonwealth."
And
END QUOTE
.
QUOTE 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.
40 Sir GEORGE TURNER.-Is a naturalized alien a subject?
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,
45 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.
5 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.
END QUOTE
10 And
QUOTE
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
15 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.
20 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.
END QUOTE
And
QUOTE
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.
30 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.
END QUOTE
35 And
QUOTE
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,
40 notwithstanding the rights conferred under clause 52, deprive Parliament of the
power of excluding Chinese, Lascars, or Hindoos who happened to be British
subjects.
END QUOTE
And
QUOTE
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
5 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.
END QUOTE
And
QUOTE
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
15 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
20 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.
END QUOTE
And
25 QUOTE
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
30 "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.
END QUOTE
And
QUOTE
Mr. OCONNOR (New South Wales).-I would suggest that Mr. Symon should accept the
amendment suggested by Mr. Barton, so that his clause shall read-
Every subject of the Queen resident in any state or part of the Commonwealth shall be
40 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
45 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.
END QUOTE
And
QUOTE
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
10 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
15 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.
END QUOTE
Again;
QUOTE
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.
25 END QUOTE
.
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.
30 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
35 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;
40 QUOTE
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
45 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 states-
Mr. 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?
5 END QUOTE
.
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
10 “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.
.
15 QUOTE
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
20 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
25 opinions, but that Her Majesty's Government in Great Britain shall communicate to
Her Majestys Government in Australia through one channel of communication only.
END QUOTE
Again;
30 QUOTE
Her Majesty's Government in Great Britain shall communicate to Her Majestys
Government in Australia
END QUOTE
.
35 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.
.
40 QUOTE
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.
45 END QUOTE
And
QUOTE
Sir RICHARD BAKER (South Australia).-
50 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
5 that too much care has not been exercised.
END QUOTE
.
QUOTE
10 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
15 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
20 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
25 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
30 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
35 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

The Hon. E. BARTON:
without imposing some penalty or punishment!
40 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!

Mr. GLYNN: No, unless it is part of a sanction to enforce the obligation of a civil
45 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.
END QUOTE
5 .
.
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
10 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;
15 QUOTE
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.
20 END QUOTE
.
The Statement;
QUOTE
25 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
30 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.
END QUOTE
.
35 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.
.
40 QUOTE 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.
45 END QUOTE
.
In the Shaw case the High Court of Australia stated;
QUOTE

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
5 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.
END QUOTE
Again;
10 QUOTE
However, he has never become an Australian citizen.
END QUOTE
.
The judges simply seemed not to realize that they were talking about “citizenship” involving
15 political rights and not at all being about nationality.
.
QUOTE 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,
20 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
25 not prepared to trust the Federal Parliament or anybody to take away that which is a
leading inducement for joining the Union.
END QUOTE
.
Therefore, Mr Shaw was an “Australian citizen” the moment he entered the Commonwealth of
30 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
35 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.
.
40 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!
.
45 Ex Parte Lovell; Re Buckley (1938) 38 S.R. N.S.W. 155 at 158; 55 W.N. 63 Jordan C.J.
QUOTE
“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.”
50 END QUOTE
END QUOTE 19-7-2006 ADDRESS TO THE COURT
.
Again;
QUOTE
5 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.
END QUOTE
10 And
QUOTE
the Parliament. Would not the difficulty be that if he were under any slight disability for
15 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
20 term, we shall avoid the necessity for a definition of "citizen." You might say a subject or
resident being the subject of the Queen.
END QUOTE
.
As such, when any legislation is enacted within Subsection 51(xxvi) then the “coloured race”
25 against whom the legislation is enacted “The moment be is under any disability imposed by
the Parliament be loses his rights.”. As such the 1967 con-job referendum achieved precisely
the opposite then what Aboriginals had anticipated. As I understand it the federal Government in
the 1950’s abandoned using Subsection 51(xxvi) to include Aboriginals because of legal advice
that this might in fact be rather harmful to Aboriginals instead of aiding their rights.
30 .
Shaw v Minister for Immigration and Multicultural Affairs
72
9 December 2003
35 B99/2002
QUOTE
of his position is his classification as an alien for the purposes of HYPERLINK
40 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
statutory expression. Secondly, and more fundamentally, if "British subject" was being
45 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
END QUOTE
.
QUOTE
5 Mr. BARTON.-
this Constitution is to be worked under a system of responsible government
END QUOTE
And
10 QUOTE
Mr. BARTON.-
We have simply said that the guarantee of the liberalism of this Constitution is
responsible government, and that we decline to impair or to infect in any way that
guarantee.
15 END QUOTE
And
QUOTE
Mr. BARTON.-
20 Of course it will be argued that this Constitution will have been made by the
the work of Australians.
25 END QUOTE
And
QUOTE Mr. BARTON.-
Having provided in that way for a free Constitution, we have provided for an
30 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.
.
QUOTE Mr. DEAKIN.-
35 In this Constitution, although much is written much remains unwritten,
END QUOTE
And
QUOTE Mr. DEAKIN.-
40 What a charter of liberty is embraced within this Bill-of political liberty and religious
a charter of peace-of peace, order, and good government for the whole of the peoples
45 END QUOTE
And
QUOTE Mr. SYMON (South Australia).-
We who are assembled in this Convention are about to commit to the people of
50 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
5 .
Therefore one can determine if by this, directly or indirectly, the Constitution does or does not
refer to “British subjects”
One can only understand if one explores the Hansard, as has been done below to some extend to
present an appropriate reflection to how and in what context it was referred to.
10 .
It would be taking to many pages to also set out the constitutional relationship other then to state
that the Commonwealth of Australia is not a “dominion”, “republic”, “Kingdom”, “Empire” but
a “POLITICAL UNION”;
.
QUOTE Mr. SYMON (South Australia).-I beg to move-
That the words "The Commonwealth of" (line 10) be struck out.[start page 1747] That
will leave the clause to provide simply that the colonies shall be united in a Federal
Constitution, under the name of "Australia." Now, my honorable friend (Dr. Cockburn),
20 earlier in the present session, moved in this direction in connexion with a later clause, but it
was pointed out at that time that that clause did not deal specifically with the name, that the
clause now under reconsideration dealt with that subject, and that the amendment he then
proposed could be more properly dealt with under this clause. Now, honorable members
will recollect that in Adelaide I moved in the same direction. On that occasion there was a
25 very short debate, and not wishing to press the matter exhaustively then, but rather to leave
it until after the Bill had been before the public and the Legislature, pursuant to the
Enabling Act, I did not on that occasion press the matter to a division; but I wish to tell
honorable members that I intend to press the question to a division on this occasion. I only
desire to utter one or two sentences, because it seems to me the matter is so plain that any
30 one who will consider it for a moment will agree with my view, and that it will be
unnecessary for me to occupy a long time in commending it, as I do, to the acceptance of
honorable members. I 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
35 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
40 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
45 Union by the name of "Commonwealth," and I do not propose to interfere with that
in the slightest degree.
END QUOTE
.
One cannot have an “alliance” to a POLITICAL UNION” being the Commonwealth of
50 Australia as if it is a nationality! Hence, the alliance is to the British Crown as “ British
subjects”!
.
And not even a Section 128 referendum can alter this!
.
What however is clear is that we have judges who are not “constitutionalist” but “living
5 constitutionalist”. A “constitutionalist” seeks to apply the constitution as was intended by the
framers of the Constitution and as successfully subsequently amended by referendums. A “living
constitutionalist” is where a judge likes to interpret the constitution as to whatever may be
today’s perception and by this disregarding the stability of a constitution people are entitled
upon. A “living constitutionalist” therefore would give a Government a tool to circumvent
10 constitutional constrains by pretending there is some constitutional powers and then legislate
accordingly and by flux of time people will accept this as being constitutionally proper. Also, the
judges giving their own personal interpretation to what the constitution stands for and as such the
very stability a constitution is to provide is no more because the judges will use their own
interpretation as a backdoor manner to apply the constitution as they deem fit and an alternative
15 way to legislate without the consent of the people and/or the Parliament.
.
As the Framers of the Constitution stated about the issue of "British subject";
.
20 QUOTE Mr. DIBBS:
I look upon the question of the creation of a military power within a territory under the
Crown as a menace to the people who are to continue as British subjects. We have been
sent here by our various parliaments to frame a constitution under the Crown-under the
Crown, bear in mind. That is the idea which has been put forward in every speech that has
25 been made. I presume, then, that the members of the Convention are prepared at once to
give the go-by altogether to the idea of imperial federation. So long as we remain in our
present position as individual colonies, we are imperially federated, and we can be
imperially federated in no stronger manner than in connection with our relation to
the mother country. We are as much imperially federated as the people living in the cities
30 of London, Liverpool, Manchester, or other large centres of population. We are a portion
of the British Crown, joined together by the most solemn ties and obligations; and we
have to bear the brunt of any misfortune which may fall upon us in connection with
any attack upon our shores by reason of our enemies being the common enemies of
England. We have already made certain provision, partially of a federal character, to assist
35 the Imperial Government in the protection of our shores from without; but let us set our
faces as a young nation-if I may use the word "nation" in advance-against standing armies;
let us set our face once and for ever against the creation of anything like a military
despotism. We are met here under the Crown, and I must say that, as one possessing a
slight tinge of republican notions, as one who sees that the future of Australia is to be
40 what was prophesied of it fifty years ago, by poets who have written of what the
future of Australia is to be-having a certain tinge of republicanism in my nature, the
result naturally of my being a descendant of an Englishman, I was surprised to find a
gentleman occupying a position under the Crown proposing what 100 years ago would
have been simply regarded as high treason. Why, the other day the hon. member, Mr.
45 Munro, made a proposal with regard to one phase of the question which made me ejaculate,
"One strand of the painter has gone."
Mr. MUNRO: What was that?
Mr. DIBBS: The hon. member proposed to take from us, as British subjects, the
chartered right which we possess of appeal to the Crown.
50 END QUOTE
.
QUOTE Sir GEORGE GREY:
I contend that the patience and the endurance of the people of Australia have been perfectly
5 wonderful, and they deserve that the great reward of freedom should now be given to them.
Have they in any one of the colonies had in past years the freedom of British subjects?
END QUOTE
.
10 QUOTE
Mr. CUTHBERT: I wish to suggest that at the end of the clause the words "for the space
of five years" be added. Under the different constitutions which have been recognised a
foreigner does not stand in the same position as a British subject, even though he take
out letters of naturalisation, and I think it would be very desirable if the same
15 principle were recognised in the federal constitution, namely, that a man is not,
because he takes out letters of naturalisation to-day, entitled to sit in the senate
tomorrow. I venture to submit for the consideration of hon. members the desirability of
making some limitation such as I suggest, namely, that for a period of five years after
taking out letters of naturalisation a foreigner should not be entitled to a seat in the senate.
20 This restriction is carried to a much greater extent in the Victorian Constitution, because a
foreigner is not allowed to sit in the Legislative Council there until [start page 610] ten
years have elapsed since he took out letters of naturalisation, and inasmuch as it is
provided that a person must be "either a natural born subject of the Queen," or a
subject of the Queen naturalised by law, who has resided in the commonwealth for
25 five years, and who is 30 years of age, before he is eligible for election as a senator, I
think we should make this limitation with regard to naturalised Subjects. I believe that
the hon. member in charge of the bill will see that the proposal is not an unreasonable one,
and I hope he will see his way clear to accept it.
END QUOTE
30 .
QUOTE
Sir SAMUEL GRIFFITH: I do not think there is any inconsistency. Each state is
allowed to prescribe who are to be its electors-it may say anything it pleases about that. I do
35 not think that an electoral law saying that only British subjects shall vote can be said to be
a special law applicable to the affairs of the people of any race for whom it is thought
necessary to make special laws not applicable to the general community. I think that would
be rather a far-fetched construction of the provision.
END QUOTE
40 .
QUOTE
Mr. DIBBS: I think the proposal to establish. an appeal court within these colonies is a
mistake, as far as the suitors are concerned, and that the proposal is more the outcome of
45 sentiment than of practical necessity. The idea has been that we should give to our own
people-I was about to use the word "subjects," but the time has not yet arrived for that-an
appeal court of their own, and that we should take away from them the right of appeal,
making them almost foreign subjects. The idea exists in the minds of certain gentlemen
that it will cheapen the cost of litigation to the suitor, if we have an appeal court in our own
50 territory. Having had considerable experience in appeals to the Privy Council, I would say
that it is cheaper to appeal to the Privy Council, to have a thoroughly unbiased court, a
court in which the highest legal talent of the empire ought to be available, for the hearing of
cases, than it would be to, appeal to any appellate court which might. be established here.
Of course, I hold that, as British subjects, we have the right of appeal to the Queen, and I,
5 therefore, shall support the amendment of the hon. member, Mr. Wrixon. To take away
from the people of this country the right of appeal to the throne is to commence to sap the
foundations of a union under the Crown, the principle upon which our federation is to be
established. If we are to be under the Crown let there be one form of law let there be one set
of decisions ruling in every part of the empire.
10 END QUOTE
.
QUOTE
Mr. GORDON: I should like to ask Mr. Barton whether there is anything in this
15 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.
20 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
25 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 privileges conferred on him by a treaty between two
high powers, he should be disqualified from holding a seat in the Federal Parliament.
30 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
35 .
QUOTE Sir JOSEPH ABBOTT:
Of course, this is at present a mere proposal; and I cannot but think that, on deliberate
consideration, good reason will appear for not insisting upon it.
40 1. The first and most obvious objection is one which must necessarily have occurred
to yourself, and to any other statesman who has given the matter a thought. British
capital is, and it is to be hoped will continue to be, largely invested in these colonies. It
appears, therefore, to be a perfectly reasonable demand on the part of the mother-
country, that any British subject feeling himself aggrieved by the decision on his civil
45 rights of a local court shall, if the case be of sufficient importance, have his right of
final appeal to an Imperial tribunal. However fair colonial judges and juries may have

shown themselves, it is inevitable that persons resident in the United Kingdom, or in
other colonies, who should find themselves worsted in litigation before a colonial court
from which there was no appeal, would, in many cases, both feel and express a doubt
that justice had not been done them, and would be ready to impute the decision
5 against them to local prejudice and favoritism.
END QUOTE
.
QUOTE
10 The person so dealt with conceiving himself aggrieved, brought an action for wrongful
arrest and imprisonment against Sir Arthur in the Supreme Court of New Zealand, both
parties being then in the colony. Commissions to take evidence in Samoa and in London
were issued and executed. It was understood that Sir Arthur was defended by the British
Treasury; and the present Mr. Justice A. L. Smith, of the English High Court of Justice,
15 acted as his counsel on the execution of the Commission in London. No objection was
taken on behalf of the defendant to the jurisdiction of the New Zealand court, No doubt this
was on the ground, established in the leading case of Mostyn v. Falrigas, and other oases,
that a British subject may be sued for damages in any British court within whose
jurisdiction he is found for a personal wrong done to another British subject in any part of
20 the world. But such a jurisdiction is one which cannot belong to a merely local court.
Supposing that it could in law survive the contemplated alteration, it is plain that the British
Parliament could not allow it to remain. It may be asked: What loss would that be to the
colony? I maintain that it would be a real loss. For by the existence of such a jurisdiction
the remedy for injustice and oppression in this quarter of the globe is made more prompt
25 and easy. The dignity of the tribunal exercising so high a function is enhanced. The unity of
the empire is affirmed in a striking manner. To destroy such a jurisdiction would be an art
of separatism and a degradation of our courts. If this view is regarded by anyone as
sentimental, I would observe that it is exactly by the prevalence of such sentiments, if at all,
that the unity of the empire can be maintained.
30 In Sir Arthur Gordon's case the decision was on the main point, favorable to the
defendant, the question being one of law, but judgment went against him for a small sum.
There was no appeal lodged. The plaintiff, it is said, would have appealed had his means
permitted. The British Government acquiesced in the decision.
END QUOTE
35 .
QUOTE
Sir JOHN DOWNER: I have a good deal of sympathy with the two speeches that we
have listened to, because one naturally has inclinations towards the way [start page 975] in
40 which one has been brought up. But I would like to ask both Sir Edward Braddon and my
hon. friend who has just sat down, whether we are ever to get out of our swaddling clothes?
What are we here for?
Mr. FRASER: Not to cut the painter.

Sir EDWARD BRADDON: Not to deprive a British subject of a right.
45 Sir JOHN DOWNER: We have come to the conclusion that we may cease to be
provincial, and form the foundation of a nation. We do not propose in any way to
separate from the British Crown, but on the other hand we look to it with reverence. We
consider ourselves the same people, but the very essence of the difference is that we think
we can make laws which will suffice us; in other words, to put it colloquially, we think we
can manage our own affairs. I ask these two hon. gentlemen to think for a moment or two.
We are to have powers dealing to an unlimited extent with the most sacred of all subjects-
life-and with property; in fact everything that can affect us is to be within the legislative
5 power of the Commonwealth. Our relations to foreign powers so far as they do not
interefere with Imperial concerns, we wish to have in our own hands, but when we come to
the subsidiary thing, the administration of our own laws, we have got to admit our
inefficiency.
Mr. FRASER: They may not be our own laws.
10 Sir JOHN DOWNER: They are our own laws, because the laws we bring from
England are only our own laws so long as we do not please to alter them.
END QUOTE
.
15 QUOTE
Mr. SYMON: The hon. member, as he very often does, has adopted that
uncompromising tone which carries him beyond the necessities of his argument. He
reminds one-in fact he is an Australian reproduction-of that celebrated English politician
known as "Tear'em." When he attempts, in that emphatic manner of his, to prove that the
20 effect of the clause will be to take away rights which British subjects possess all over the
empire, he is imposing a little too much on our credulity. This clause does not take away
what is known as the inalienable right of a British subject in one single particle. The
inalienable right of a British subject is to approach Her Majesty as a suppliant. That is left
entirely untouched by this Constitution. It is the right of every British subject, the
25 humblest in the realm, whether in this portion of the Empire or any other, to go to the
Throne for the redress of grievances, but Her Majesty has constituted in various parts of the
Empire, courts for the redress of grievances, and each of these courts is as much the court
of Her Majesty the Queen, whether it exists in this country or in England, as the Judicial
Committee of the Privy Council. Now, if the Imperial Parliament had chosen, as they might
30 have done, to declare some court in these colonies to be the final court of appeal, no one
could have said for one instant that that was not giving the subject the right of final appeal
to which he was entitled; and all we propose to do here is to declare that, instead of having
a court of appeal in England to which the suitor can go, we have a final court of appeal here
which should absolutely and finally decide the question.
35 Sir EDWARD BRADDON: Is that not begging the question?
Mr. SYMON: No. What particular virtue is there in the Privy Council that is not shared
by the courts in Australia?
Sir JOSEPH ABBOTT; More able men!

END QUOTE
40 .
QUOTE
Mr. DOBSON: We simply ask you not to take away a right which every British
subject now possesses. It is all very well to refer to the petition of right, but that is never
45 used Once in, a century.
Mr. SYMON: It has been used here.

END QUOTE
.
QUOTE Mr. SYMON:
5 Therefore, I accept the position put with so much power by the hon. member, Mr. Deakin,
that it is unlikely, that it is improbable, that anything of the sort will occur; and I say, why
insert in the federal constitution a provision at variance with and destructive of the federal
idea, when there is no possible or conceivable likelihood of its ever being called into force?
It seems to me to be opposed to the ordinary dictates of common-sense to introduce so
10 debatable, so questionable a contrivance a contrivance with which we as British subjects
are not familiar in order simply to gratify it may be a passing whim.
END QUOTE
.
15 QUOTE
The CLERK read the petition, as follows:-
To the Right Honorable the President and Members of the Australasian Federal
Convention, in session assembled:
The humble petition of the undersigned, the executive officers of the Australasian
20 National League, humbly sheweth:
1. That your petitioners represent a large and influential body having a considerable [start
page 4] membership in New South Wales, Victoria, and South Australia, who are deeply
interested in the question of the federation of Australasia, now under consideration by the
Convention.
25 2. That amongst the provisions of the Draft Constitution of the Commonwealth is one for
the establishment in Australia of a Court of Appeal, the judgments of which shall as regards
all cases between individuals, be absolutely final, and shall as regards matters affecting the
proposed Commonwealth, or any constituent state, thereof, be also final, save in cases in,
which Her Majesty the Queen shall be pleased to grant, special leave to appeal to Her
30 Majesty.
3. That your petitioners are of opinion that there should be a Federal Court of Appeal; but
humbly urge, that they ask not the concession of, a privilege but the maintenance of an
important right, for the proposed extinction of which no adequate reason has been shown;
which has not been withdrawn from their fellow subjects in Canada, and the abrogation of
35 which right of appeal to the Privy Council would take away one of the highest privileges of
a British subject. It would also seriously prejudice the material interests of Australia by
depriving the British capitalist of his right to appeal to his own courts in serious cases, and
thus prevent the inflow of British capital, upon which the colonies largely depend for their
development; and it would constitute a serious menace to the integrity of the empire by
40 severing one of the strongest existing ties between the Australian colonies and the British
Crown, besides making Australia almost the only, self-governing part of the empire in
which such a right would not exist.
4. Your petitioners, therefore, humbly pray that such amendments may be made in the
Commonwealth Bill during the present session of the Convention as will preserve to
45 Australian and British litigants in the Australian courts the final right of appeal to her
Majesty in Privy Council.

5. And your petitioners will ever pray.
END QUOTE
.
5 QUOTE
Sir EDWARD BRADDON (Tasmania).-While, I quite agree with the, views of the
leader of, the Convention as to this power so far as regards the immigration of
coloured races and aliens, I cannot see the force of his argument with reference to the
local management of these people. Aliens who have been admitted within our shores will
10 more or less permanently settle in one state or the other, and they should, I think, be
entirely under the Government of the state in which for the time being they reside. Mr.
Deakin has hinted at some grave objections to giving the Federal Government an exclusive
power over these people. The Attorney-General of Victoria has given one very striking
example of the necessity of the Governments of the states having authority in this matter,
15 and that is as regards, the licensing of Afghans as hawkers. It is the practice to issue to
them a licence different from that which is given to other races. That might very well
constitute a difficult question in the state of Victoria, whilst it might not be of the same
importance in other states. In Tasmania it is quite possible that it may come to be a grave
question whether the Hindostanese who are British subjects shall be allowed to continue
20 the practice of hawking as they have been doing for some time past. That might develop
into a very large question indeed in Tasmania, and it should be a matter for settlement by
the state and not by the Federal Government.
Sir GEORGE TURNER (Victoria).-I trust the leader of the Convention, will
carefully reconsider his position, and the apparently strong views be holds with
25 regard to persons of foreign race.
END QUOTE
.
QUOTE
30 Mr. TRENWITH.-Suppose that is the case, and that this clause is included in clause 52,
the Federal Parliament will have all the powers which it is proposed to give it here, except
that it will have to act after instead of before. That is all the difference. Whenever a
necessity arises on behalf of the interests of the Commonwealth to deal with the question of
aliens by one authority, the Federal Parliament can deal with it, and at once. I object to
35 taking away powers from the states now that may or may not be exercised by the Federal
Parliament. I feel that this question of the treatment of aliens will be more difficult in the
future than in the past. We have an indication of that from what was said by the right
honorable member (Sir Edward Braddon) as to the difficulty in Tasmania in dealing
satisfactorily with British subjects coming from Hindostan. He says that is a difficulty
40 there, and that it will have to be met by special legislation. That has happened in the past.
Other colonies have seen the necessity for special legislation, and it might as easily have
happened that in some other colonies, on account of evils arising therefrom the influx of
this alien population, they had instituted special legislation. Tasmania might not pass
such legislation, because within its borders the evil had not previously arisen. The aliens
45 legislated against might pass into Tasmania; then the Federal Parliament, having the power,
would prevent the state which was being embarrassed by the influx of a number of these
aliens from taking action on its own account so as to prevent the inflow of the aliens.
An HONORABLE MEMBER.-Cannot you give us credit for more intelligence, so that

if we saw an evil existing in me part of Australia we would recognise it?

Mr. TRENWITH.-My experience has shown in this Convention that the intelligence
which honorable members possess is very much circumscribed, and their mental horizon
reaches their own border, but goes with great difficulty beyond it. We have seen that in the
discussion we have had lately. We have had it in other discussions, and dealing with
5 difficulties which we have not yet been able to solve. I do not see that there is any great
reflection cast upon honorable members by making those remarks. It is very difficult for
people to see from a distance The evils that other people are suffering. It is only another
illustration of the old adage that no person can tell where the shoe pinches except the man
who wears it. We are as a rule very indifferent about the pinching when we do. not wear the
10 shoe ourselves.
[start page 238]
Mr. HOLDER.-Why not take the broad view of the question?

END QUOTE
.
QUOTE
Sir JOHN FORREST (Western Australia).-The difficulty, to me, seems to be as to what
is meant by the word affairs." Perhaps the leader of the Convention will tell us. I take it
that it means the control of those people after they have arrived in Australia. If it was
20 intended to mean their introductions I have no doubt that the most of us would be in accord,
because I think every one is of the opinion that the introduction of people of any race,
especially coloured races, is a matter which should be in the control of the Federal
Parliament. I take it that the word affairs" would mean the control of alien races after
they have arrived in this continent. In my opinion the control of the people, of what ever
25 colour they are, of whatever nationality they are, living in a state, should be in the control
of the state, and for that reason I should like to see this sub-section omitted.
MY. SYMON.-Why did you vote for the question of conciliation and arbitration being a
federal subject then?
Sir JOHN FORREST.-I am not dealing with that question at this moment. I do not see
30 myself that this sub-section is necessary, because I hold that if it is passed the control of
every one living in the state should be within the province of that state. Take the colony
which I represent. We have made laws controlling a certain class of people. We have made
a law that no Asiatic or African alien can get a miner's right or do any gold mining.
Does the Convention wish to take away from us, or, at any rate, not to give us, the power to
35 continue to legislate in that direction? We have also made laws regarding hawking.
Certainly they apply to every one, I believe, at the present time. We have had to abolish
hawking-not liking to offend the susceptibilities of British subjects, we had to abolish
hawking altogether. But we would much rather have applied our legislation to a certain
class of the people. I think I have some right to speak on this subject; and, no one, at any
40 rate, will be able to say of me, or of the colony I represent, that we desire to encourage the
introduction of coloured races, because ours if; the only colony in Australia with a law at
the present time which excludes from its territory coloured people. Other colonies have
talked about it a great deal.
Mr. REID.-You don't exclude them.

45 Sir JOHN FORREST.-Yes, we can exclude them.
[start page 241]

Mr. REID.-Under the Natal Act?
Sir JOHN FORREST.-Yes, unless they can read and write English they certainly can be
excluded. I think that there is no desire on our part to do anything to encourage either in
Western Australia, or any other part of Australia, undesirable immigrants. I take it that
5 under clause 52 immigration is a subject within the power of the Federal Parliament to deal
with. I would not mind if it were one of its exclusive powers. There may be difficulties in
regard to the introduction of persons who are not altogether desirable. But I cannot for the
life of me see why we should desire to give to the Federal Parliament the control of any
person, whatever may be his nationality or his colour who is living in a state. Surely the
10 state can look after its own affairs. It may require to place a restriction on a certain class of
people. As I said, we place a restriction in regard to the issue of miners' rights. We also
provide that no Asiatic or African alien shall go on a township on our goldfields. These
are local matters which I think should not be taken away from the control of the state
Parliament. For that reason I would like not to give this subject a place in either clause 52
15 or clause 53, but to leave it as a matter to be dealt with by the local Parliaments in their
wisdom and discretion.
Mr. REID (New South Wales).-I think the remarks which have been, made within the
last 30 minutes only show how easy it is even for men of very profound knowledge to make
very serious mistakes, and I include myself, not, as a man of profound knowledge, but as
20 one who is apt to make mistakes. I think the general idea all through has-been that this sub-
section of clause 53 was intended to deal with the admission of aliens.
Mr. BARTON.-Not with the admission of aliens, but with aliens after they are here.
Mr. REID.-No; but there has been as we have seen here lately, considerable confusion
on that point, because I know that quite a number of commentators on this Bill have always
25 looked on this sub-section as a provision which handed over to the Federal Parliament
the exclusive power of dealing with aliens, and even this afternoon I have heard more
than one observation to that effect. In fact, it is only within the last few minutes that the
discussion has gone away from that view. I venture to say that the view which Sir John
Forrest expressed is the correct one, and that this sub-section really refers to the method in
30 which aliens shall be dealt with when they become members of the community in the
physical sense.
Mr. BARTON.-I don't think the speakers generally have been making the mistake you
mention. Certainly Mr. Isaacs and Sir George Turner did not.
Mr. REID.-I have heard observations that would have been perfectly correct if this sub-
35 section had not that meaning. However, that sort of thing has been happening all through;
there is nothing unusual in it. I agree with Sir John Forrest that it is certainly a very serious
question whether the internal management of these coloured persons, once they have
arrived in a state, should be taken away from the state. I am prepared, however, to give that
power to the Commonwealth, because I quite see that it might be desirable that there should
40 be uniform laws in regard to those persons, who are more or less unfortunate persons
when they arrive here. Therefore, in that sense I am prepared to say that the clause should
stand as it is. But I do not know that the difficulty does not still remain-that if there is no
federal law, and until there is a federal law, the local law would not go.
Mr.-KINGSTON.-No, the local laws are preserved under section 100.
45 END QUOTE
.

QUOTE Sir EDWARD BRADDON (Tasmania).-
All the people from end to end of the colonies profess the greatest possible loyalty to the
Throne and to the Sovereign who sits upon it. We all, I believe, desire to remain members
5 of the great British Empire, and we wish to continue British subjects with all the rights of
British subjects, and of those rights this appeal to the Privy Council is a very considerable
one. I would repeat what was urged at the Convention in 1891, that by depriving the people
of these colonies of the right of appeal to the Privy Council, we should be sapping the
foundation of that Constitution, which is avowedly a Constitution under the Crown. I hope,
10 and hope with every possible confidence, that in this, our final dealing with this matter, we
shall by a large majority decide to retain the right of appeal to the Privy Council.
END QUOTE
.
15 QUOTE
Mr. HIGGINS.-There might be a Bill passed decreeing that the honorable member (Sir
John Forrest) and his Ministry in Western Australia should be suspended by the neck
until they were dead. I am not sure that in that extreme case Her Majesty would refuse to
give her consent. I believe that with tears in her eyes and with much regret she would give
20 her consent to such a law. The consent of the Queen to an ordinary Act of Parliament is
given, very properly under constitutional government, almost as a matter of course. It is
only in those cases where there is any interference with the rights of states or with other
British subjects that there is ever a refusal to give assent. If there is any difficulty with
regard to the matter, I think the honorable member (Mr. Wise's) suggestion to adopt the
25 same words as are in the Canadian Act would not be taken amiss, although, with all respect,
I think they are perfectly useless. I have here the case of Prince v. Gagnon, vol. 8, Appeal
Cases before the Privy Council, in which the Canadian Act giving the right of appeal to the
Privy Council on Her Majesty's prerogative was discussed. It was a case involving £1,000,
and the question was whether a transaction between father and son amounted to a gift or a
30 sale. There was first a decision in the court that it amounted to a gift. There was then an
appeal in Canada to the Queen's Bench, and they held upon the same particulars that it was
a sale. There was an appeal again to the Federal Court in Canada, and they held that it was
a gift. It then went to the Privy Council, the members of which said it was only a question
involving £1,000; it did not involve any question of magnitude, of law, or of public interest.
35 The report says-
Their Lordships, having looked into the case, see that it involves nothing whatever beyond
this £1,000. There is no grave question of law or of public interest involved in its decision
that carries with it any after consequences, nor is it clear that beyond the litigants there are
parties interested in it.
40 Their Lordships then proceeded to apply the principles laid down in certain cases, and
said-
They are of opinion that they ought not to advise Her Majesty to exercise her prerogative
by admitting an appeal in a case depending upon a disputed matter of fact in which there is
no question involved of any magnitude.
45 Of course, when they speak of magnitude, they are referring to the amount of money
involved. They say-

In which there is no question involved of any magnitude, or of any public interest or
importance, their Lordships will humbly advise Her Majesty to refuse liberty to appeal in
this case.
END QUOTE
5 .
QUOTE
Mr. SYMON.-Yes. The expense of these delays is, of course, enormous. There is one
more point to which I should like to call attention. It is said that we are denying to the
10 people of Australia a right possessed by all other British subjects. Now, there are
40,000,000 people in the British Islands who have no right of appeal to the Privy Council.
A Privy Council appeal is really an anachronism and an absurdity. Law reformers in
England think there should be one final Court of Appeal for the British Islands, instead of
having the House of Lords and the Privy Council with concurrent jurisdictions. But when it
15 is said that rights are being taken away, we ought to remember that the Privy Council is no
more specially favoured, so far as it happens to be a court, than any other court that exists.
The small sum of money for which the suit of the poor man is brought is just as important
to him as a large sum is to a rich man, and there are many more cases in which poor men
are concerned than there are cases in which rich men are concerned. When we talk about
20 uniformity of decision, what becomes of the thousands of cases under £500 in which there
is no appeal? The people interested in these cases are left without that splendid palladium
of liberty which the Privy Council is described to be. The honorable and learned members
(Mr. Isaacs and Mr. Higgins) very well pointed out that the High Court must gradually
grow in strength. We want it to possess, from the first, integrity, learning, independence,
25 and firmness, and we believe that it will possess all these qualities from the moment that it
is endowed with federal jurisdiction. But I hold with my honorable and learned friend that
immense power and capacity grow with responsibility; and, although I am satisfied that
from the outset the court will be competent to do the high work intrusted to it, I believe that
if it was not there would be no better way of securing that it should rise to the highest limits
30 of its duties than by extending its functions and increasing its jurisdiction, so as to make it
in the final resort the source of unspotted justice to all the people of this country.
Mr. Wise's amendment was agreed to.
Question-That the words "saving any right which Her Majesty may be graciously pleased
to exercise by virtue of her Royal prerogative," proposed to be inserted after the word
35 "conclusive," be so inserted-put.
Ayes ... ... ... ... 14
Noes ... ... ... ... 22

Majority against the amendment 8
40 END QUOTE
.
QUOTE
Mr. GLYNN (South Australia).-I would like, in order to have this point a little more
45 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
5 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.
10 Mr. SYMON (South Australia).-I shall vote with my honorable friend (Mr. Glynn).
Although at first I was inclined to say that these words ought to be put in, I think now they
are very much better left out. I think that in cases where it is desirable that a man should be
tried by a jury the Federal Parliament will confer that right. If there are cases in which some
other mode of trial ought to be prescribed, I think we may rest assured that the necessary
15 provision will be made by the Federal Parliament.
Question-That the words proposed to be omitted stand part of the clause-put.
Ayes ... ... ... ... 17

Noes ... ... ... ... 8
20 Majority against the amendment 9

END QUOTE
.
QUOTE
25 Mr. HIGGINS (Victoria).-I beg to move-
That, after the words "every such trial shall," the words "unless Parliament otherwise
provides" be inserted.
Mr. WISE-That gives the Executive power to change the venue.

Mr. HIGGINS.-No-the Parliament. It will simply give Parliament the power to declare
30 under what circumstances and in what cases there shall be a discretion to have the trial in
any other state. The law as it stands in the present Bill is that the trial, as a matter of
constitutional law, shall be held in the particular state where the offence was
committed. I propose to enable the Federal Parliament to say that in certain cases and on
certain Contingencies, and with certain restrictions and limitations, the trial may be held in
35 some other place. I think that is simply another instance of trusting the Federal Parliament
to put the matter on the best basis.
Mr. WISE (New South Wales).-The only class of cases contemplated by this section
are offences committed against the criminal law of the Federal Parliament, [start page
354] and the only cases to which Mr. Higgins' amendment would apply are those in
40 which the criminal law of the state was in conflict with the criminal law of the
Commonwealth; in any other cases there would be no necessity to change the venue,
and select a jury of citizens of another state. Now, I do not know any power, whether in
modern or in ancient times, which has given more just offence to the community than the
power possessed by an Executive, always under Act of Parliament, to change the venue for
the trial of criminal offences, and I do not at all view with the same apprehension that
possesses the mind of the honorable member a state of affairs in which a jury of one state
would refuse to convict a person indicted at the instance-of the Federal Executive. It might
be that a law passed by the Federal Parliament was so counter to the popular feeling of a
5 particular state, and so calculated to injure the interests of that state, that it would become
the duty of every citizen to exercise his practical power of nullification of that law by
refusing to convict persons of offences against it. That is a means by which the public
obtains a very striking opportunity of manifesting its condemnation of a law, and a
method which has never been known to fail, if the law itself was originally unjust. I
10 think it is a measure of protection to the states and to the citizens of the states which should
be preserved, and that the Federal Government should not have the power to interfere and
prevent the citizens of a state adjudicating on the guilt or innocence of one of their fellow
citizens conferred upon it by this Constitution.
15 END QUOTE
.
QUOTE
Sir JOHN FORREST (Western Australia).-I have no doubt that the Commonwealth will
20 legislate in regard to these matters, but in the meantime it seems to me that there will be a
difficulty in regard to coloured aliens and to coloured persons who have become British
subjects. In Western Australia no Asiatic or African alien can get a miner's right or go
mining on a gold-field. We have also passed-an Immigration Act which prohibits, even
undesirable British subjects, from entering the colony. I do not know how this clause will
25 act in regard to these matters but it seems tome that the word "citizen" should be defined.
In Western Australia an alien can hold land in just the same way as he could if he
were a British subject-no doubt that is the case in other colonies, probably in thins
colony-and he would probably think himself a citizen, whatever nationality he
belonged to, having resided for a long time in the colony, and having acquired
30 property [start page 666] therein. It is of no use for us to shut our eyes to the fact that
there is a great feeling all over Australia against the introduction of coloured persons. It
goes with-out saying that we do not like to talk about it, but still it is so. I do not want this
clause to pass in a shape which would undo what is about to be done in most of the
colonies, and what has already been done in Western Australia, in regard to that class of
35 persons. It seems to me that should the clause be passed in its present shape, if a
person, whatever his nationality, his colour, or his character may be, happens to live
in one state, another state could not legislate in any way to prohibit his entrance into
that state. I think there is a great deal to be said against the state being allowed to do
that, but until the Federal Parliament legislates in regard to it, it certainly ought to be
40 in the power of the state not only to maintain the laws existing, but also to legislate
further if it should so desire.
END QUOTE
.
45 QUOTE
Mr. SYMON.-That is not the point we are discussing. Clause 2 says that the Act shall
bind the Crown. Of course it does; but where is there a word in the Act that says that a
British subject, a citizen, shall be unable to bring any action against the Crown that he is
entitled to bring now?

Mr. GLYNN.-That is not the point.
END QUOTE
.
5 QUOTE
Dr. QUICK.-I am disposed to think that there ought to be something in the nature of a
definition in the Constitution. In my mind, a reasonably approximate definition would be
that which I have drafted, to the effect that all persons resident in the Commonwealth,
being natural-born or naturalized subjects of the Queen, and not under any disability
10 imposed by the Federal Parliament, should be citizens of the Commonwealth. That is not a
complete definition, it is only an approximation of what I consider a definition. The
conditions of citizenship seem to me to be that the citizen shall be either a natural-born or
naturalized subject of Her Majesty the Queen, and resident within the Commonwealth, and
that he shall not be under any disability imposed by the Federal Parliament. Such a
15 disability might be imposed under the clause which we put into the Bill some time ago,
empowering the Federal Parliament to deal with foreign races and undesirable immigrants.
The Federal Parliament is empowered to declare that these races shall be placed under
certain disabilities, among which might be that they shall not be capable of acquiring
citizenship. The definition which I have suggested would not open the door to members of
20 those undesirable races, and it would empower the Federal Parliament to exclude from the
enjoyment of and participation in the privileges of federal citizenship people of any
undesirable race or of undesirable antecedents. I hope that this proposal will not be opposed
and denounced in the manner which has become somewhat fashionable in the Convention.
Every generalization which is brought forward to interpret the Constitution, and to set
25 forward more plainly the advantages that it is supposed will accrue from the union, if it
goes an iota beyond what is absolutely or technically necessary, is denounced as a proposal
to placard the Constitution. I hope that a proposal to define federal citizenship and the
status of members of this new political organization will not be pooh-poohed, and spoken
of as a proposal to placard the Constitution. In my opinion, there are certain substantial
30 rights and advantages which would accrue from the placing in the Constitution of an
expressed recognition of the federal citizenship. The Constitution empowers the Federal
Parliament to deal with certain external affairs, among which would probably be the right
to negotiate for commercial treaties with foreign countries, in the same way as Canada has
negotiated for such treaties. These treaties could only confer rights and privileges upon
35 the citizens of the Commonwealth, because the Federal Government, in the exercise of
its power, [start page 1753] could only act for and on behalf of its citizens. Therefore, it
is desirable that the Constitution should define the class of persons for whom these rights
and privileges would be gained. By placing in the Constitution a definition of citizenship,
or by providing for its creation, we do not interfere with the citizenship of the states, which
40 I propose to leave exclusively within the jurisdiction of the states themselves, nor do we
interfere with that wider relationship which affects us all as subjects of Her Majesty and
members of the great British Empire. We are affected by this relationship by virtue of our
position as British subjects. It is, however, a relationship entirely different from that which
will be created by this Constitution. A citizenship of the Commonwealth will, of course, be
45 much narrower than our subject-ship of the empire. In my opinion, it would be a manifest
imperfection in the scheme of union not to make provision in some shape or other to enable
the Federal Parliament to deal with and legislate upon the subject of membership of the
Commonwealth. Without in any way dealing with the questions to which reference is made
by the other amendments and clauses on the notice-paper, and without in any way
50 suggesting that federal citizenship should come into conflict with state citizenship, or that
state citizenship should overlap federal citizenship, I propose to give to the Federal
Parliament power to deal with this important question. Without such a provision as I wish
to insert, I think the Constitution would be manifestly defective.
Mr. OCONNOR (New South Wales).-I am sure that the honorable member will have no
reason to apprehend that the exceedingly important question which be has raised will not be
5 properly dealt with. We all recognised, when we were dealing with clause 110, the extreme
importance of the question which has been raised. I am entirely in sympathy with my
honorable and learned friend as to the necessity for dealing with this question, but I think
that it would be a mistake to deal with it in the way he proposes. I think it would be a
mistake to give to the Federal Parliament the power of determining the qualifications of
10 citizenship under the Commonwealth. In my opinion, the honorable and learned member's
quotations from the other Constitutions all bear out the principle that in the making of a
Constitution that which gives the right of citizenship and which includes citizenship is
defined. Let me for a moment consider the proposal to give this power to the Federal
Parliament. The Federal Parliament could do nothing in the way of defining the
15 qualification of citizenship or the rights of citizenship beyond the limits of the
Constitution. Now, you may regard the citizen from two points of view. In the first place,
as regards his rights as a member of the Commonwealth, and in the second place, as
regards his rights as a member of the state. The latter aspect seems to me much the more
important. But let us take first his position in regard to the Commonwealth. Under the
20 power which you have given to the Federal Parliament to make laws regulating
immigration and aliens, you embrace every possible set of circumstances under which
any person may enter the bounds of the Commonwealth. As you have power to
prevent any person from entering any part of the Commonwealth, you have also the
power to prevent any person from becoming a member of the Commonwealth
25 community. There is no territorial entity coincident with the Commonwealth. Every
part of the Commonwealth territory is part of the state, and it is only by virtue of his
citizenship of a state that any person within the bounds of the Commonwealth will
have any political rights under the Constitution. Of course, when I speak of a state, I
include also any territory occupying the position of quasi-state, which, of course,
30 stands in exactly the same position.
Mr. WISE-Is that clear?
[start page 1754]
Mr. OCONNOR.-If the territory does not stand in the same position as a state, it is
admitted to political rights at the will of the Commonwealth, and upon such terms as
35 the Commonwealth may impose. Every person who has rights as a member of the
Commonwealth must be a citizen either of some state or some territory. It is only by
virtue of his citizenship of a state or of a territory that he has any political rights in
the Commonwealth.
Mr. WISE.-Before the 14th amendment was passed it was very much questioned
40 whether a citizen of Washington had any rights at all, because Washington was only a
territory.
Mr. OCONNOR.-Yes; but what the honorable and learned member says really
supports my argument. The thirteen original states occupied a very small portion of
the area now forming the United States of America, and of course the question might
45 arise as to what the position of a person who is not resident of or a citizen of any state,
but a resident of a territory, might be in relation to the Commonwealth. But I do not
think that that question will arise here, because we cannot imagine, I think, any
portion of the Commonwealth becoming a territory now, unless it has been a state at
one time-unless it is some portion of a state which has been ceded to the
Commonwealth, and in the cession to the Commonwealth there is no doubt that care
will be taken to define what the rights of the residents of the territory would be in
regard to the political rights of the Commonwealth. It appears to me quite clear, as
5 regards the right of any person from the outside to become a member of the
Commonwealth, that the power to regulate immigration and emigration, and the
power to deal with aliens, give the right to define who shall be citizens, as coming from
the outside world. Now, in regard to the citizens of the states-that is, those who are
here already, apart from these laws-every citizen of a state having certain political
10 rights is entitled to all the rights of citizenship in the Commonwealth, necessarily
without a definition at all.
END QUOTE
.
15 QUOTE
Mr. KINGSTON (South Australia).-I shall also support the amendment of Dr. Quick,
and I trust that it will be carried. I cannot conceive that in the adoption of legislation on this
subject Parliament would do aught else than make the definition uniform and of general
application. If there was any necessity for making that clear, the insertion of the words
20 "uniform citizenship of the Commonwealth" would accomplish that, but I hardly think it is
necessary. I am impressed with the importance of taking power as occasion arises to
define what shall constitute citizenship of the Commonwealth; and the Bill at present
is altogether deficient in regard to giving any power to the Commonwealth Parliament
to legislate on this subject. It seems to me it is a very difficult matter, and one with which
25 we should not attempt to deal here, but rather should refer it to those who, when necessity
arises to adopt some legislation on the subject, will have all the facts before them, and may
reasonably be supposed to be able to make the best provision for the purpose in connexion
with the subject. My honorable friend (Mr. Glynn) referred to the principle which he said
obtained, I think, in Germany, where only native-born Germans, or those who are
30 naturalized in the empire, are admitted to the privileges of citizenship. I asked in the course
of his remarks how would that apply to citizens of the Commonwealth. It is a very difficult
thing to deal with. If you provide that only those shall be citizens of the Commonwealth
who were born in it or have been naturalized, you will undoubtedly be putting too strict a
limitation on citizenship. It would be simply monstrous that those who are born in
35 England should in any way be subjected to the slightest disabilities. It is impossible to
contemplate the exclusion of natural-born subjects of this character; but, on the other
hand, we must not forget, that there are other native-born British subjects whom we
are far from desiring to see come here in any considerable numbers. For instance, I
may refer to Hong Kong Chinamen. They are born within the realm of Her Majesty, and
40 are therefore native-born British subjects.
Sir EDWARD BRADDON.-Are British treaty ports British territory?
Mr. KINGSTON.-Hong Kong is undoubtedly a British possession, and a Hong Kong

Chinaman is undoubtedly a native-born British subject. Thus, honorable members will see
what difficulties might arise if the privileges of citizenship of the Commonwealth were
45 extended to all British subjects. If that were done, we should be landed in a difficulty
against which it is well to provide. I think the very best, thing under all the circumstances is
to do-what is recommended by Dr. Quick, and give to the Federal Parliament power to,
legislate on this subject as occasion arises. I have no fear whatever but that they will make
wise provisions on the subject-provisions uniform throughout the Commonwealth-for

extending to all British subjects those privileges which they ought to possess, while at the
same time safeguarding the rights of the Commonwealth.
Mr. OCONNOR (New South Wales).-I would like to point out to Dr. Quick that he
proposes to give a power to the Commonwealth to legislate in regard to a matter which is
5 not mentioned from the beginning to the end of the Constitution. The word "citizen" is not
used from beginning to end in this Constitution, and it is now proposed to give power to
legislate regarding citizenship.
[start page 1761]
Mr. KINGSTON.-It was in the Bill.

10 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.
Mr. OCONNOR.-The words in clause 110 do not define any right of citizenship; they
15 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
20 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
25 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-
30 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
35 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
40 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.
45 END QUOTE
.
QUOTE
Mr. WISE.-Either this clause will be utterly ineffective or it will give the Federal
Parliament power to outlaw certain persons.
5 Mr. SYMON.-Mr. Trenwith has said he was not at first inclined to support this
amendment, and I think that if he gives it further consideration he will feel that it is utterly
unnecessary to do so, and that it is unwise to put into the hands of the Commonwealth
Parliament a power which might be likely to be exercised, as my honorable and learned
friend (Mr. Wise) has said, for the purpose of outlawing citizens of the state who are
10 citizens of the Commonwealth. Of course the Federal Parliament would not do such a thing
as [start page 1763] that, and, therefore, it seems to me that it is unnecessary to put in such
a power. Is there any person whom the Federal Parliament, by virtue of this provision,
could make a citizen of the Commonwealth who would not already be a citizen of a state?
You cannot do it. There is nothing to which this can possibly apply. You have given the
15 Federal Parliament power to deal with the question of aliens, immigration, and so on, to
prevent the introduction of undesirable races. Under that provision you enable the Federal
Parliament to legislate within certain limits, and in a certain direction. Under that they
may, within those limits, take away, or they may restrict, the rights of citizenship in a
particular case. That is what we intend them to do. I am not going to give carte blanche to
20 the Federal Parliament to say who shall and who shall not be citizens. The object of all
who are represented here is that the Union of these states is of itself to confer upon the
citizens of the states the rights of citizens of the Commonwealth.
Mr. HIGGINS.-You may depend upon it that the states will see that this is kept up.
Mr. SYMON.-I agree with the honorable member, and I also think it is unlikely that the
25 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
30 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.
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
35 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. SYMON.-Then I think they ought to. The whole object of legislating for aliens is
40 that there should be uniformity.
Sir EDWARD BRADDON.-They would not have that in the Federal Council.
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
45 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
5 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
10 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
15 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.
20 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
25 with regard to one particular set of people who are subject to disabilities, as 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.
Dr. COCKBURN (South Australia).-I think the Commonwealth should keep in its own
30 hands the key of its own citizenship. Some colonies are somewhat colourblind with regard
to immigration, other colonies may be somewhat deficient in their ideas as to
naturalization. If we place in the hands of any state the power of forcing on the
Commonwealth an obnoxious citizenship, we shall be doing very great evil to the
Commonwealth. This power should be in the hands of the Commonwealth; it should itself
35 possess power to define the conditions on which the citizenship of the Commonwealth
shall be given; and the citizenship of the Commonwealth should not necessarily follow
upon the citizenship of any particular state.
Mr. BARTON (New South Wales).-We have provided in this Constitution for the
exercise of the rights of citizenship, so far as the choice of representatives is concerned,
40 and we have given various safe-guards to individual liberty in the Constitution. We have,
therefore, given each resident in the Commonwealth his political rights, so far as the
powers of legislation and administration intrusted to the Commonwealth are concerned. Let
us consider the position. Before the establishment of the Commonwealth, each subject is
the subject of a state. After the Commonwealth is established, every one who acquires
45 political rights-in fact, every one who is a subject in a state, having certain political rights,
has like political rights in the Commonwealth. The only difference between the position
before the institution of the Commonwealth and afterwards is that, so far as there are
additional political powers given to any subject or citizen, be has the right to exercise these,
and the method of exercising them is defined. So far the right of citizenship, if there is a
right of citizenship under the empire, is defined in the Constitution. Now, each citizen
of a state is, without definition, a citizen of the Commonwealth if there is such a term
as citizenship to be applied to a subject of the empire. I must admit, after looking at a
standard authority-Stroud's Judicial Dictionary-that I cannot find any definition of
5 citizenship as applied to a British subject. No such term as citizen or citizenship is to be
found in the long roll of enactments, so far as I can recollect, that deal with the
position of subjects of the United Kingdom, and I do not think we have been in the
habit of using that term under our own enactments in any of our colonies.
Mr. HIGGINS.-You had it in the Draft Bill.
10 Mr. BARTON.-Yes; but the term has since disappeared, and it disappeared owing to
objections from members of the Convention. I am inclined to think that the Convention is
right in not applying [start page 1765] the term "citizens" to subjects residing in the
Commonwealth or in the states, but in leaving them to their ordinary definition as subjects
of the Crown. If, however, we make an amendment of this character, inasmuch as citizens
15 of the state must be citizens of the Commonwealth by the very terms of the Constitution,
we shall simply be enabling the Commonwealth to deal with the political rights of the
citizens of the states. The one thing follows from the other. If you once admit that a
citizen or subject of the state is a citizen or subject of the Commonwealth, the power
conferred in these wide terms would enable the Federal Parliament to deal with the
20 political rights of subjects of the states. I do not think the honorable member intends
to go so far as that, but his amendment is open to that misconception.
Mr. HOWE.-Trust to the Federal Parliament.
Mr. BARTON.-When we confer a right of legislation on the Federal Parliament we trust

them to exercise it with wisdom, but we still keep as the subject of debate the question of
25 whether a particular legislative right should be conferred on the Federal Parliament. When
you give them the right then you may trust them to exercise it fully.
Mr. HOWE.-And wisely.
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
30 with the lives, liberty, and property of all 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
35 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
40 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
45 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
5 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
10 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
15 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
20 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.
Dr. QUICK (Victoria).-I understood that, under the Federal Constitution we are creating,
we would have a dual citizenship, not only a citizenship of the states, but also a
citizenship of the higher political organization-that of the Commonwealth. It seems now,
25 from what the Hon. Mr. Barton has said, that we are not to have that dual citizenship; we
are to have only a citizenship of the states.
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

30 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
35 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
40 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
45 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.
5 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.
10 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
15 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.
Sir EDWARD BRADDON.-They are citizens if they are British subjects before they
come here.
20 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.
25 Mr. WALKER.-Is not a citizen of the state, ipso facto, a citizen of the
Commonwealth?
Dr. QUICK.-It required the 14th amendment to place that beyond doubt in the American
Constitution. In the [start page 1767] proposition which I have put before the Convention I
do not desire at all to interfere with state citizenship. I leave that entirely to the states. In
30 my opinion, it is in no way desirable to trench upon state citizenship. But I think we are
entitled to place in the Constitution a provision empowering the Federal Parliament to deal
with the incidence of Commonwealth citizenship, its mode of acquisition, the status it
confers, and the manner in which it may be lost. It has been suggested by, I think, the
honorable and learned member (Mr. Glynn), that a definition of citizenship should be
35 accompanied by something in the nature of inter-state citizenship, that is, that the
citizens of one state should be entitled to all the privileges and immunities of the
citizens of another state. But I would point out that such a provision would be
inconsistent with an amendment already placed in the Constitution. We have already
eliminated interstate citizenship, upon the ground that it might interfere with the
40 right of each state to impose disabilities and disqualifications upon certain races. I am
sure that the Federal Parliament would not be able, under the provision which I wish to
insert, to legislate in regard to state citizenship or to in any way enlarge the
Commonwealth rights or privileges at the expense of the rights of the states. The power of
the Federal Parliament could only be exercised in regard to the privileges and rights
45 contemplated by the Constitution itself. I may point out roughly some of the rights which
are contemplated by the Constitution. There is the right to assert any claim which a citizen
might have upon the Government, the right to transact any business he might have, the right
to seek the protection of the Government, to share its offices, to engage in its administrative
functions, to have free access to the ports of the Commonwealth and to its public offices
and courts of justice, to use its navigable waters, and to all the privileges and benefits
secured by the Commonwealth for its citizens by treaties with foreign nations. In my
earlier remarks I did not enumerate more than the last of these rights. When the
5 Federal Government is negotiating with foreign nations, say for treaties of commerce,
and certain rights and privileges are obtained thereby for the citizens of the
Commonwealth, it ought to be able to point to a definition of Commonwealth citizenship.
I am amazed at the force and the consistency with which technical objections are being
raised against every proposal calculated to improve and popularize the Constitution. One
10 would imagine that this was to be a mere lawyers Constitution, and that everything that
seems to go beyond mere legal literalism must be rejected. Again, I ask are we to have a
Commonwealth citizenship? If we are, why is it not to be implanted in the Constitution?
Why is it to be merely a legal inference? It is all nonsense to say that the Commonwealth
Parliament is going to cut down and reduce the state citizenship. It will only deal with
15 federal citizenship. Why should not the Federal Parliament be able to deprive any person
who broke the Commonwealth laws of the Commonwealth citizenship? Would not that be
within the functions and jurisdiction of the Commonwealth Parliament? I think that it
would be strictly within its functions. If we are not to provide for this Commonwealth
citizenship, what will be the position of those residing in territories which may
20 hereafter be created? The honorable member (Mr. Walker), among others, is desirous
that a certain portion of territory shall be set apart as within the exclusive jurisdiction
of the Commonwealth for a federal capital. That is a view which I share with him. But
I ask what will be the civic status of the inhabitants of the federal territory? I hope
that the provision which I have brought forward will be dealt with by the Convention,
25 not from a strictly legal aspect, but from the broad and [start page 1768]
comprehensive point of view from which we have been accustomed to deal with it
when upon the public platform we have informed our people that by federation they
will be placed upon a higher plane of citizenship. I would ask is a provision of this
kind to be rejected merely upon technical grounds?
30 END QUOTE
.
QUOTE
Mr. BARTON.-Certainly there is a decision in the United States to the effect that it is a
35 Christian nation. What does that decision amount to? Is it not really a decision based on the
fact that the institutions of England, under the common law, are Christian institutions,
which, so far as they are not interfered with by any written Constitution, belong to citizens
of the United States, as having been brought over by them as British subjects, and kept by
them from that day to this? If that is the ground of the American decision, which I suspect it
40 is, the same thing applies in some of these colonies. Decisions have been given to the effect
that there colonies are Christian communities. I remember a case in which that doctrine was
expounded at length by the late Chief Justice Martin, of New South Wales. Now, if the
colonies are Christian communities, the common law of England will apply to the
Commonwealth, except so far as this Constitution alters that law; and if it is part of the
45 common law of England that we shall be regarded as a Christian community, what fear is
there of our suffering any dangers of the kind indicated in the amendment, simply because
we are a Christian community? I do not see any danger of the [start page 1771] kind to be
anticipated. I think that because we are a Christian community we ought to have advanced
so much since the days of State aid and the days of making a law for the establishment of a
50 religion, since the days for imposing religious observances or exacting a religious test as a
qualification for any office of the State, as to render any such dangers practically
impossible, and we will be going a little too far if we attempt to load this Constitution with
a provision for dangers which are practically nonexistent.
Mr. HIGGINS.-That is the question-are those dangers non-existent?
Mr. BARTON.-I do not think the fact that we may be held by law to be a Christian
5 community is any reason for us to anticipate that there will be any longer any fear of a
reign of Christian persecution-any fear that there will be any remnant of the old ideas which
have caused so much trouble in other ages. The whole of the advancement in English-
speaking communities, under English laws and English institutions, has shown a less and
less inclination to pass laws for imposing religious tests, or exacting religious observances,
10 or to maintain any religion. We have not done that in Australia. We have abolished state
religion in all these colonies; we have wiped out every religious test, and we propose now
to establish a Government and a Parliament which will be at least as enlightened as the
Governments and Parliaments which prevail in various states; therefore, what is the
practical fear against which we are fighting? That is the difficulty I have in relation to this
15 proposed clause. If I thought there was any-the least-probability or possibility, taking into
consideration the advancement of liberal and tolerant ideas that is constantly going on of
any of these various communities utterly and entirely retracing its steps, I might be with the
honorable member. If we, in these communities in which we live, have no right whatever to
anticipate a return of methods which were practised under a different state or Constitution,
20 under a less liberal measure of progress and advancement; if, as this progress goes on, the
rights of citizenship are more respected; if the divorce between Church and State
becomes more pronounced; if we have no fear of a recurrence of either the ideas or the
methods of former days with respect to these colonies, then I do suggest that in framing a
Constitution for the Commonwealth of Australia, which we expect to make at least as
25 enlightened, and which we expect to be administered with as much intellectuality as any of
the other Constitutions, we are not going to entertain fears in respect of the Commonwealth
which we will not attempt to entertain with respect to any one of the states. Now, we have
shown that we do not intend these words to apply to our states by striking out clause 109.
That might be a provision that might be held to be too express in its terms, because
30 there may be practices in various religions which are believed in by persons who may
enter into the Commonwealth belonging to other races, which practices would be
totally abhorrent to the ideas, not only to any Christian, but to any civilized
community; and inasmuch as the Commonwealth is armed with the power of
legislation in regard to immigration and emigration, and with regard to
35 naturalization, and also with regard to the making of special laws for any race, except
the aboriginal races belonging to any state-inasmuch as we have all these provisions
under which it would be an advisable thing that the Commonwealth, under its
regulative power, should prevent any practices from taking place which are abhorrent
to the ideas of humanity and justice of the community; and inasmuch as it is a
40 reasonable thing that these outrages on humanity and justice (if they ever occur)
should be prohibited by the Commonwealth, it would be a dangerous thing, perhaps,
to place in the Bill a provision which would take out [start page 1772] of their hands
the power of preventing any such practices.
Mr. HIGGINS.-Do you think that the Commonwealth has that power under the existing
45 Bill?
Mr. BARTON.-I am not sure that it has not. I am not sure that it has not power to
prevent anything that may seem an inhuman practice by way of religious rite.
Mr. HIGGINS.-I want to leave such matters to the states.

Mr. BARTON.-But inasmuch as we have given to the Commonwealth the power of
regulating the entry of that class of persons, and the power of regulating them when they
have entered, is it not desirable that in that process there shall be left to the Commonwealth
power of repressing any such practices in the name of religion as I have indicated? If it be
5 necessary that there should be some regulative power left to the Commonwealth, then the
argument that we should leave the matter to the states does not apply, because we give such
a power to the Commonwealth.
Mr. HIGGINS.-Then all crimes should be left to the Commonwealth?
Mr. BARTON.-No; because you do not give any power with regard to punishing
10 crime to the Commonwealth, but you do give power to the Commonwealth to make
special laws as to alien races; and the moment you do that the power of making such laws
does not remain in the hands of the states; and if you place in the hands of the
Commonwealth the power to prevent such practices as I have described you should not
defeat that regulative power of the Commonwealth. I do not think that that applies at all,
15 however, to any power of regulating the lives and proceedings of citizens, because we
do not give any such power to the Commonwealth, whilst we do give the
Commonwealth power with regard to alien races; and having given that power, we
should take care not to take away an incident of it which it may be necessary for the
Commonwealth to use by way of regulation. I have had great hesitation about this matter,
20 but I think I shall be prevented from voting for the first part; and as to establishing any
religion, that is so absolutely out of the question, so entirely not to be expected-
Mr. SYMON.-It is part of the unwritten law of the Constitution that a religion shall not
be established.
Mr. BARTON.-It is so foreign to the whole idea of the Constitution that we have no
25 right to expect it; and, as my honorable and learned friend (Mr. Symon) suggests by his
interruption, I do not think, whatever may be the result of any American case, that any such
case can be stretched for a moment in such a way as to give Congress power of passing any
law to establish any religion. I do not suppose that there is a man in Congress who would
suggest it; and I have no doubt that the same court that decided that the community was a
30 Christian community would say that the United States Congress had no power to establish
any religion. The only part of the matter upon which I have had the least doubt (having
become more confirmed in my opinion since I have considered the matter further) is the
latter part of the proposal, which is that no religious test shall be required for any place of
public trust in the Commonwealth. I do not think that any such test would be required, and
35 the only question is whether it is possible. I have come to the conclusion that it is not
possible. Therefore, my disposition is to vote against the whole clause.
Constitution?
40 could not receive the funds of the Commonwealth under either of them.
[start page 1773]
Mr. WISE (New South Wales).-I can conceive of no matter more fit for state control
than that of religious observance, and, therefore, I am utterly unable to follow the
leader of the Convention (Mr. Barton) in his contention. There should not be any
45 opening for doubt as to the power of the Commonwealth to exercise control over any
religion of the state. I wish I could share Mr. Barton's optimistic views as to the death
of the spirit of religious persecution. But we have seen in our own time a
recrudescence of that evil demon, which, I fear, is only scotched and not killed. At any
rate, the period during which we have enjoyed religious liberty is not long enough for
us to be able to say with confidence that there will be no swinging back of the
5 pendulum to the spirit of the times from which we have only recently emerged.
Consequently there is some reason for the alarms which have been expressed by a
very large body of people, who have not been represented in this Convention, by long
petitions, but who none the less are entitled to be considered when we are framing this
Constitution, and who, rightly or wrongly-for my own part, I believe rather more
10 wrongly than rightly-believe that the agitation for the insertion in the preamble of the
words which we have inserted to-day is sufficient to cause alarm among citizens of
certain ways of thinking, and that there is an interior design on the part of some
people in the community to give the Commonwealth power to interfere with religious
observances.
15 Mr. HIGGINS.-We had 38,000 signatures to a petition from the people in Victoria
against the inclusion of these words in the preamble.
Mr. WISE.-I am very glad to hear it. That strengthens my argument. if 38,000
citizens of Victoria sent a petition against the inclusion of these words, not because
they disapproved of the words in themselves, but because I suppose they were afraid
20 that the inclusion of them would confer upon the Commonwealth some power to
legislate with regard to religious observances, I say that fears of that sort should be
respected. I know a considerable body of people in New South Wales, who, perhaps, have
not made themselves heard in this Convention by petitions, who are actuated by the same
alarms. Now, why should we not meet the scruples of these gentlemen as we met the
25 scruples and feelings of another class of the community, when we put the words to, which I
have alluded into the preamble? We none of us here believe in our hearts that these words
added much to the preamble, but we put them in, as we thought, because they were a just
satisfaction of a, certain sentiment. May we not support this on the same ground? May we
not say-"We will clear away once and for ever any doubts which you may feel by making it
30 clear that all matters of religious observance and control over religion shall be left to the
states to which they naturally belong." Is the fear which is expressed groundless? If it had
not been for the speech of Mr. Higgins this morning we might say that the fear was
absolutely groundless, and that it was impossible that the Commonwealth should exercise,
or seek the power to exercise, any control over religious observances. Yet, when we have
35 the example of the United States, not six years old, I do not think the leader of the
Convention can carry the force of conviction to us here, when he asks us to believe that
there is no fear whatever of the Commonwealth exercising a power which we cannot
believe would be exercised by any state. Supposing the Commonwealth is swayed by some
popular feeling, such as swayed Congress in 1892, and some law were passed, say, dealing
40 with Sunday observance, which might reflect the wishes of the majority of the people, but
which would be most distasteful and persecuting to a minority. In a matter of religious
feeling, a minority are [start page 1774] entitled to the utmost respect and should have their
feelings guarded.
END QUOTE
45 .
QUOTE
Mr. SYMON.-If you move that, I will accept it.
Sir JOHN FORREST.-What is a citizen? A British subject?
Mr. WISE.-I presume so.
Sir JOHN FORREST.-They could not take away the rights of British subjects.
Mr. WISE.-I do not think so. I beg to move-
That the words "each state" be omitted, with the view of inserting the words "the
5 Commonwealth."
I apprehend the Commonwealth must have complete power to grant or refuse citizenship
to any citizen within its borders. I think my answer to Sir John Forrest was given a little too
hastily when I said that every citizen of the British Empire must be a citizen of the
Commonwealth. The Commonwealth will have power to determine who is a citizen. I
10 do not think Dr. Quick's amendment is necessary. If we do not put in a definition of
citizenship every state will have inherent power to decide who is a citizen. That was the
decision of the Privy Council in Ah Toy's case.
Sir JOHN FORREST.-He was an alien.
Mr. WISE.-The Privy Council decided that the Executive of any colony had an
15 inherent right to determine who should have the rights of citizenship within its
borders.
Mr. KINGSTON.-That it had the right of keeping him out.
[start page 1786]
Mr. WISE.-In our case he was within our limits, but he was not allowed to sue in our
20 courts.
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.
Mr. WISE.-No, there may be territories that is what I want to provide for.
25 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."
END QUOTE
30 .
QUOTE
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,
35 notwithstanding the rights conferred under clause 52, deprive Parliament of the
power of excluding Chinese, Lascars, or Hindoos who happened to be British
subjects.
Mr. WISE.-Might not place of birth be a disability?

Mr. ISAACS.-It would be difficult to persuade me that place of birth is a disability that
40 could be imposed by Parliament. The amendment provides that a natural-born subject of
the Queen, unless he is liable to some disability imposed by Parliament, such as lunacy,
shall be a citizen of the Commonwealth. It does not say except such persons as Parliament
chooses to exempt, and it seems to me, from the very nature of the expression, [start page
1789] that this cannot refer to place of birth. That is not a disability imposed by Parliament,
and unless a natural-born or naturalized subject of the Queen does something or gets into
such a condition as amounts to, so to speak, a disqualification, he would be entitled to be
5 admitted as a citizen of the Commonwealth. I am quite sure that the doubt is at all events
sufficiently great to cause a very strong feeling against the thing. We could not insure such
an interpretation as honorable members desire. The effect of it certainly may be, and I think
probably will be, what I have stated, and it seems to me that the only safe course to adopt is
to do what Dr. Quick proposed to do yesterday.
10 Mr. GLYNN (South Australia).-When this matter was before the Convention on a former
occasion in connexion with clause 110, I raised this very point, but I did not succeed in
getting honorable members to pay any attention to it: Its importance evidently was not
recognised. I intended, when Dr. Quick's amendment was proposed, to make an addition to
it, so that it would read as follows:-
15 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 of the state in which they reside, and shall be entitled to all the
privileges and immunities of citizens in the several states.
The one clause would then cover everything, and I put this forward for the consideration
20 of the honorable member. He may not wish to go to the extent of saying that they shall be
citizens of the state in which they reside, but the latter words would embody the principle
Mr. Symon is now suggesting, and which I suggested on clause 110.
Mr. BARTON.-What about territories?

Mr. GLYNN.-There is power under the Bill to make special laws with regard to
25 territories, and I am not sure that we could not constitute a certain class of citizenship
for the territories.
Mr. BARTON.-That power would be exercised subject to the Constitution. If you make
the matter safe so far as the citizens of the territories are concerned in the Constitution,
legislative power could not interfere with them.
30 Mr. GLYNN.-I understand that you can make any provision you like as to
representation and otherwise until the territories become states. Their position in the
Constitution is purely provisional. I can see the force of the point, and I admit that my
amendment does not cover it. The proposal I have suggested puts the definition in the same
position as in America. Citizens of the Commonwealth are citizens of the state in which
35 they reside, and they also have, as Mr. Symon suggests, the privileges and immunities of
citizens of the several states. There is only one other means by which you could do what is
wanted, and perhaps it is the best: That is to adopt the principle of the German Constitution,
which says that there shall be a common citizenship, and that the rights of the citizens in
one state shall attach to the citizens in the other states. That would place it in the power of
40 the Federal Parliament to declare what are the conditions of citizenship. There would be
power under a provision of this kind to say that an alien should not be a citizen until
he had resided five years in the colony, while the citizenship would be uniform in its
character throughout the Commonwealth. In America, aliens have been prevented from
becoming citizens unless they have resided in the place for five years. They must then be
45 citizens for seven years before they can stand for Parliament. Honorable members will see
that by adopting the principle of the German Constitution we could prevent any special
rights being given to aliens, and I think it would be better in that form. I desire to call
attention to this point also, that even if you do not define citizenship at all in the
Constitution there would be very little harm done. It seems to be forgotten [start page
1790] that in the American Constitution the word citizen is used. It is not used in our
Constitution. In the original American Constitution the word "citizen" is for instance used
5 in connexion with representation in Parliament. A man must be a citizen for seven years
before he can be returned as a representative, so that there is a special reason for the
definition given to the term citizen. Here we do not use the word citizen. We use the
word "resident" only. The qualification for a Member of Parliament is residence for three
years, and very little harm will be done if we leave out "citizen" altogether. If the
10 Convention do not adopt a suggestion such as that I have made, the better plan will be to
fall back on the principle of the German Constitution, which would enable us to make
special laws regarding aliens. 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
15 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. Mr. Musgrove, then
Secretary for Customs, prevented Ah Toy from landing. Ah Toy brought an action for
assault and battery against him, but the Privy Council held that that action could not be
20 justified.
END QUOTE
.
QUOTE
25 Sir EDWARD BRADDON.-The amendment is to omit clause 110, and insert the
following now clause:-
The citizens of each state, and all other persons owing allegiance to the Queen and
residing in any territory of the Commonwealth, shall be citizens of the Commonwealth, and
shall be entitled to all the privileges and immunities of citizens of the Commonwealth in
30 the several states, and a state shall not make or enforce any law abridging any privilege or
immunity of citizens of the Commonwealth, nor shall a state deprive any person of life,
liberty, or property without due process of law, or deny to any person within its
jurisdiction the equal protection of its laws.
Now, there is a clause that covers the whole ground-a clause that is all-sufficient for the
35 purpose-bearing in mind that every provision is made for securing to the Commonwealth
that its citizens shall not be people of alien races to any considerable extent. There are in
India some 150,000,000 British subjects, but of those 150,000,000 people very few indeed
could stand the test applied by the Natal Immigration Restriction Act, which I think has
been adopted already in Western Australia; which will no doubt be adopted in other
40 colonies. of Australasia, and which will be effective in keeping from our shores the natives
of India who cannot pass the education test that is applied under the Natal Act. This
education test is one which would debar some 149,000,000 at the least out of 150,000,000
from qualifying, and would so keep them out of Australia. There you have a very much
wider disability-and I think a very wholesome disability-which goes far and away beyond
45 that suggested by the learned and honorable member (Mr. Isaacs). I think if we took this
clause into our consideration, it might be found to do all that is required for us.
END QUOTE
.
QUOTE
Mr. BARTON.-A law giving such a right had better not be subject to conflict. If you
have a state law for fisheries within the 3-mile limits under the state, and a Commonwealth
law beyond the 3-mile limit, the unlucky fisherman who does not always know whether he
5 is 21 /2 or 3 miles away will get into the pickle instead of his fish.
Sir JOHN FORREST.-The state now has no power to legislate.
Mr. BARTON.-Within its territorial limits?
Sir JOHN FORREST.-No, beyond.
Mr. BARTON.-The state cannot legislate beyond territorial limits.

10 Sir JOHN FORREST.-Yes, it can, in regard to British subjects.
The CHAIRMAN.-I must ask the honorable member (Sir John Forrest) to allow the
honorable member (Mr. Barton) to address the Chair.
Mr. BARTON.-Oh, it is usual when I am speaking. I am afraid there is a great deal of

law about the subject, and I thought that was the reason the honorable member asked me
15 the question. I quite agree that every state has the right to legislate as to its own fisheries
within the territorial limit of 3 miles, but it has no right to legislate beyond that limit. It is
questionable whether the power as it stands in the Bill would enable the Commonwealth to
legislate [start page 1858] for anything beyond territorial limits. Although it has been taken
and acted upon in regard to the Federal Council, and granted also that the states have power
20 to legislate within territorial limits, it is nevertheless obvious that you come at once into a
conflict of laws, because there are vessels which are occupied in fishing within the
territorial limits, and which are at the same time often occupied in fishing without those
limits, and very often the men having charge of those vessels will be unable to distinguish
whether they are within or without the 3-mile limit. It will be very hard on them that there
25 are two sets of laws, because they will not know where they are. Fishing may sometimes
be conducted by wealthy syndicates, but, as a rule, the persons employed in this
occupation are a very poor and humble class, who certainly ought not to be bothered
by having to ask whether they are under one set of laws or another. I can understand
that the law in regard to fisheries within territorial limits might apply to the regulation of
30 ships engaged in fishing outside those limits. But, in the first place, it is a doubtful subject
for legislation, and might lead to conflicts. That is why I have proposed "Sea, fisheries." It
will allow the Commonwealth to legislate with regard to the whole area.
Mr. ISAACS.-What are "Australian waters"? How far do they extend?

Mr. BARTON.-It is impossible to say. I suppose that with all my honorable and learned
35 friend's ingenuity it would puzzle him to say what are "Australian waters." I question
whether there is a lawyer in the land who could say. If you insert the word "Sea" before
the word "fisheries," and leave out the rest of the provision, you leave one jurisdiction with
regard to legislation, and get something clear, and something which the persons conducting,
the fishing business can understand; but if you leave the thing as it is you will have
40 something which is not very clear, because you will have a conflict of laws. If you leave the
clause out it is possible that it may be done very well without. I do not know myself how
far, even with the authority of the Imperial Parliament, any legislation with regard to
fisheries may be applicable beyond territorial limits, except as affecting the regulation
of the vessels conducting the trade, and that can be done under the trade and
45 commerce or the navigation sub-sections.

END QUOTE
.
QUOTE Mr. KINGSTON (South Australia).-
5 . It seems to me that if we retain a clause of this description we ought to amend the
previous clause, which regulates the application of the laws of the Commonwealth, by
providing that they shall run in Australian waters. Of course they only apply to British
subjects and to British ships. That provision will necessitate either a definition of
"Australian waters," or the constitution of Some authority by which this definition
10 may be framed.
END QUOTE
.
QUOTE
15 Mr. BARTON.-That is what I say. The words here are "Australian waters." The words in
the Federal Council Act were "Australasian waters." Will any honorable member point
out the difference between Australasian waters and Australian waters? Can he tell me
where be finds the line of demarcation?
Sir JOHN FORREST.-You can legislate for British subjects.

20 Mr. BARTON.-You can; but that is shipping law, and you have power already to do that
under the Constitution. You would not get any additional power from the words
"beyond territorial limits."
Mr. KINGSTON.-You would have to define the waters.
Mr. BARTON.-Will any honorable member assist me in defining, within the limits
25 of the law, what Australian or Australasian waters are? It would be idle to take a
power to legislate which would break down immediately it was tested.
Mr. ISAACS.-Can there be any Australian waters beyond the territorial limits?
Mr. BARTON.-No. But in connexion with an Act like the Naval Agreement Act you
may make an agreement for the purpose of effectuating your compact. You may say that
30 certain ships shall not be taken beyond Australian waters, and you may define those waters,
but the Act would simply be a contract between the two parties. If you were to attempt to
define Australian waters except within the limits of a contract you would have no
locus standi or aqua standi at all. The Queensland Fisheries Act does define Australian
waters in the schedule. That is a Federal Council Act, and so far as it applies beyond the 3-
35 mile limit it would if tested break down. Surely we are too sensible to take powers here
which would break down in their exercise, and would make the Commonwealth not a
power but a laughing-stock. I would suggest strongly that the words "in Australian
waters beyond territorial limits" would have no application in law [start page 1861] to
give them any validity. It would be an attempt to transfer power from the British
40 authority to the Australian authority, which the British authority does not possess.
Dr. COCKBURN.-It is the highway of Great Britain.
Mr. BARTON.-Yes; Britannia rules the waves. The sea is a highway that belongs to all
nations. We have a right of passage on it under international law; but how does that help
us? Your jurisdiction is limited to the land and 3 miles of water around it. You have no
45 more jurisdiction, and the Imperial authority could not give it to you.

Mr. SYMON.-How could you regulate a fishery to which all the nations of the earth
have access as well as yourself?
Mr. BARTON.-Yes, and this was suggested to me. Supposing that the Commonwealth
did pass such a law, and a German ship over 3 miles from land took no notice of that law,
5 what could be done? I replied in the words which were attributed to a certain speaker when
he was asked what would happen if he "named" a member. Then I was informed that the
only thing the Federal Council ever did was to pass a law which, if it was tested, would
be laughed at. We had better alter these words to "Fisheries," if we do not strike them
out altogether. That will give the Commonwealth the power of legislating within its
10 own limits, and outside them, if there is any power to legislate outside its limits. Is it
not better, after all, that we should leave the state to legislate within its own borders? There
can be no legislation outside that 3-mile limit, except under the navigation and shipping
law, under which we have sufficient power to regulate matters for all practical purposes.
Mr. DOUGLAS (Tasmania).-The original Act gives the power to the Federal Council to
15 regulate the pearl-shell and beche-de-mer fisheries in Australian waters beyond the
territorial limits. Then, in pursuance of that Act, in 1889 an Act was passed by the Federal
Council limiting the power of the original Act by providing that-
This Act applies only to British ships and boats attached to British ships.
Therefore, the jurisdiction is complete. There was a very elaborate and most important
20 decision delivered some years ago by Judge Cockburn with respect to a murder on the high
seas. The question was whether in England a foreigner, a Dutchman, could be tried for a
murder on the high seas committed beyond 3 miles from the territory. Although the man
had been found guilty of murder, Judge Cockburn, one of our best, Judges, held on appeal
that he could not be found guilty according to the English law, the murder not having been
25 committed within the 3-mile limit. But this only refers to British subjects, and it is most
important as regards Queensland and Western Australia that this power should be retained.
Therefore, why not retain the words used in the British Act of Parliament giving the
Federal Council the power? I see no difficulty in adopting the clause in the Bill as it now
stands.
30 Mr. KINGSTON (South Australia).-I take it that a British ship is floating British
territory, and just as the British Parliament has the right to legislate in reference to that ship,
so it has the right to delegate its right of legislation to another Legislature. That is what was
done in connexion with the Federal Council, and it is what is proposed to be done here.
Therefore, I hope we shall adhere to it. As pointed out by Mr. Douglas, that is the limitation
35 affecting Queensland, and no doubt Western Australia, namely, that their control applies
only to British subjects and to British ships.
Mr. BARTON.-Then the navigation and shipping law goes beyond that power.
END QUOTE
.
QUOTE
Mr. BARTON (New South Wales).-I will ask, in a few moments, that progress be
reported, because I think a little thought over this matter will lead us to a very early
determination tomorrow morning. The position is that, under the commerce clause and
45 the navigation and shipping clause, there is a right to deal with a British subject
carrying on a trade. If people go fishing for pearl-shell, schnapper, or anything else, when
they come back, and the fish is marketable, then the trade and commerce clause will apply.
If the trade is conducted purely within the limits of the territory, then the state itself can
deal with it. That is so far as licences are concerned-the mere licence for carrying on trade.
The registration of the vessels themselves comes clearly under the navigation and
shipping law, so that it seems, one way or another, there are already powers in the
5 Commonwealth and the state which render any question unnecessary. I cannot see
how the addition of the words would give any added powers or any particular validity to a
law if the law exceeded that for the regulation of trade apart from it, and for the regulation
of navigation and shipping. Decisions would be liable to be tested, and there would arise
the danger of litigation, which honorable members deprecate.
10 END QUOTE
.
QUOTE
Sir JOSEPH ABBOTT.-When we adjourned for lunch I was about to point out that
15 during the last summer sitting of the Judicial Committee the whole of the work of the
committee was cleared off, with the [start page 2293] exception of a few reserved
judgments. It has been pointed out in the press and elsewhere that if a High Court of
Appeal were established in Australia it would be found that the cases would come before it
only when it was convenient for counsel to attend, and that probably counsel would prefer
20 to attend the sittings of the state courts if there was any clashing between those sittings and
the sittings of the High Court of Appeal. Under these circumstances, it is hardly likely that
suitors would be able to procure the very best counsel to appear for them in the High Court
of Appeal, and to give up their business in the state courts, except upon the payment of
enormous fees. As honorable members know, in the North American Constitution power
25 was reserved to the Dominion to establish a High Court. The Parliament there introduced a
Bill to establish a High Court, and, in reference to this matter, Todd, at page 184, says-
Furthermore, upon the introduction into the Canadian Parliament, in 1875, of a Bill to
create a Supreme Court for the Dominion, it was the expressed intention of Ministers to
have prohibited any further appeals to Her Majesty's Privy Council. They were notified,
30 however, that the Bill could not be sanctioned, unless it preserved to the Crown its right to
hear the appeals of all British subjects who might desire to appeal, in the ultimate resort,
to the Queen in Council. Accordingly, a saving clause to that effect was inserted in the Bill,
and it received the Royal assent.
The same author, speaking with regard to this appellate jurisdiction, says-and I would ask
35 honorable members to pay particular attention to this passage:-
The appellate jurisdiction of the Queen in Council is retained for the benefit of the
colonies, not for that of the mother country. It secures to every British subject a right to
claim redress of grievances from the Throne.
He continues:-
40 It is true that in a colony which possesses an efficient court of appeal it may be seldom
necessary to have recourse to this supreme tribunal.
No doubt if a High Court of Appeal is established here, and it is what those who propose
to found it anticipate that it will be, there will be very few appeals to the Privy Council.
Still, I think that the right of ultimate appeal to the Privy Council should continue to exist.
45 Todd goes on to say:-

Nevertheless, its controlling power, though dormant, and rarely invoked, is felt by every
judge in the empire, because he knows his decisions are liable to be submitted to it. Under
these circumstances it is not surprising that British colonists have uniformly exhibited a
strong desire not to part with the right of appeal from colonial courts to the Queen in
5 Council.
I submit, with great confidence, that it is for those who propose to take away this right to
show that there is no need for it. There has not been a single petition presented to the
Convention in favour of the clause as it stands. I suppose that those who so earnestly desire
the retention of the clause as it stands would, if they could get petitions in favour of their
10 proposal, inundate us with them. Since we have been sitting in Melbourne, no less than 26
petitions have been presented to us, praying that the right of appeal to the Privy Council
may be retained; but not one petition has been presented in favour of doing away with this
right.
END QUOTE
15 .
QUOTE
Sir JOSEPH ABBOTT.-The North American Bill. I have quoted Todd but perhaps he is
not a good enough authority, and I will now quote Lord Norton, who, writing in 1879, said-
20
The late Canadian Government brought in a Bill creating a Supreme Court, and
prohibiting appeal to the Privy Council here. They were told that the Bill could not be
sanctioned unless it preserved to the Crown its rights to hear the appeals of all British
subjects if they should desire to appeal in the ultimate resort to Her Majesty in Council;
25 and the Dominion Government gave way and amended the Bill accordingly.
END QUOTE
.
QUOTE
30 Mr. SYMON.-That was the purpose for which he was sent. The Chief Justice of South
Australia was chosen, not with a view of instructing the Privy Council upon the common
law of England, or with regard to the cations of interpretation of statute law, but for the
purpose of instructing the Privy Council in relation to Australian ideas, so that they might
be better able to enter into the condition of things in reference to which the questions for
35 decision arose. Then my honorable friend referred to what he called local influence. Now, I
would ask him how does that argument apply to the thousands of cases under £500? If local
influence is bad, how are you going to free the multitudes of people of the country whose
cases never go beyond £500 from the baneful effect upon our Judges of that local
influence?
40 Mr. ISAACS.-They are British subjects.

Mr. SYMON.-Yes, but they are only poor people, and therefore they are to be subject
to the consequences of all this improper local influence, to this bias, without any hope of
redress. Was there ever a proposal that was so utterly unjust as this? Then my honorable
friend said that the Judges of the High Court would have less experience. Surely the Judges
45 of the Federal High Court will have as much experience as the Judge we have sent to the
Privy Council? Why should we reflect on his qualifications, or on the qualifications of any
Judge who is sent to take part in the work of the Privy Council? I wish to tell honorable
members this-now, when we come to speak of the question of experience-that Lord
Watson, probably the strongest Judge on the Bench of the Judicial Committee, was a
Scotch Judge, who passed the whole of his earlier career at the Scotch Bar, and on the
Scotch Bench, and who learned and administered a system of [start page 2308] law totally
opposed to the system of English law. He was nevertheless put on the Privy Council Bench
5 to decide appeals from the colonies affecting and depending upon a law of which he could
have had no possible experience before, and yet so powerful is the education which every
one undergoes with responsibility, and the necessity of exercising responsibility, that he has
become a conspicuous success on that Privy Council Bench. So it will be with the Judges of
our High Court. Their strength, their knowledge, their judicial experience, will grow
10 with the opportunities that come to them. Uniformity, it is said, will not be preserved.
Well, the law, of course, is always proverbially uncertain. We are guided by the House of
Lords, not by the Privy Council. We are bound by the decisions of the House of Lords as
long as we are part of the empire. The High Court of Justice here-the Federal High
Court will be bound to give effect to English law as expounded in the highest court
15 available to English-speaking people, and the uniformity will be maintained just as
effectually without the intervention of the Privy Council upon a discretionary appeal,
such as is proposed, as if the right of appeal were retained in its fall force.
END QUOTE
.
QUOTE Mr. CARRUTHERS (continuing)
Now, my honorable friend, in the course of his argument, asked why should not Germans
and Americans claim to have a court of their own to decide their cases. But my honorable
friend forgets that the objections raised against this proposal in the Bill are that it is doing
25 away with an existing right of British subjects. The Germans and Americans residing in
the colonies have never had the right of appeal to a court of their own from the decisions of
any of the Australian courts. His arguments would be good and valid if we were taking
away from the Germans and Americans a right they now possessed- [start page 2314] if we
were denying to them the rights which they now have. But we are not doing anything of the
30 kind. Therefore, that argument absolutely falls to the ground.
END QUOTE
.
QUOTE
35 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
40 other meaning such as has always been attached to it, we had better leave out the
clause.
END QUOTE
.
45 QUOTE
Mr. ISAACS.-In a sense which is "not synonymous with resident, inhabitant, or
person."
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
50 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.
5 Mr. OCONNOR.-A person for the time being entitled to the benefits of the law of
the Commonwealth.
END QUOTE
.
Dr Quick’s amendment to allow the Commonwealth to define/declare “citizenship” was
10 defeated!
.
It must be clear however that the term “British subject” very much is a constitutional terms and
was used frequently buy the Framers of the Constitution.
.
Not quoted to conserve space
.
The aliens power, however, gives the Parliament greater power over immigrants than the
20 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
25 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.
30 END QUOTE 19-6-2006 ADDRESS TO THE COURT
.
Main v. Thiboutot, 100 S. Ct. 2502 (1980).
QUOTE
"The law provides that once State and Federal jurisdiction has been challenged, it
35 must be proven."
END QUOTE
.
Thompson v. Tolmie, 2 Pet. 157, 7 L.Ed. 381; Griffith v. Frazier, 8 Cr. 9, 3L. Ed. 471.
QUOTE
40 "Where there is absence of jurisdiction, all administrative and judicial proceedings
are a nullity and confer no right, offer no protection, and afford no justification, and
may be rejected upon direct collateral attack."
END QUOTE
.
45 I did so extensively and again succeeded on all constitutional grounds UNCHALLENGED by
the Crown! Both State and federal.
.
The documents also show that one is charged GST for buying a copy of the Gazette, something
50 which is validating any enactment to come into force. It appears to me that to charge GST on
something essential to the process of enacting legislation is sheer and utter nonsense, and if
anything underlines that the government is out of step with what is constitutionally and otherwise
legally required, that is to complete enactments as to ensure that the general public is aware of it
by providing copies of the Gazette free of charge. Is the general public next going to be charged
5 GST on legislation being drafted?
I take the view that unless the Gazette is available over the counter free of any GST, the
Commonwealth in effect fails to appropriately publish the Gazette in that regard also.
END QUOTE 16-11-2005 ADDRESS TO THE COURT
.
10 The publication of certain legislation is essential to validate it as without publication in the
Gazette not even a federal election can take place. Indeed, I successfully challenged the validity
of the proclamation of the Governor-General where the proclamation was not actually published
until at earliest on 9 October 2001, while the writs already had been issued on 8 October 2008.
The error by the Federal Government not to publish the proclamation before the writs were
15 issued resulted there never were valid writs issued..
Likewise in the 2007 purported federal election the writs were not showing a date of return as is
constitutionally required but a date “on or before” which is no date at all.
.
I have, so to say, proven to be able to defeat the Crown despite its army of highly paid lawyers
20 because they simply lacked the constitutional knowledge to appropriate litigate.
.
I may not have had any formal legal education but again proved my worth in self-education.
.
While I have been compiling this interim limited response (just consider what a real response
25 may amount to in number of pages) grandma is still sitting there with her scones. It turns out the
poor old woman hasn’t got any teeth to bite into the scones and so is sucking on the scones as the
ATO is sucking taxpayers of their money. Just, that grandma at least isn’t sucking anyone dry, so
to say. The poor woman can’t afford the cost of the false teeth +GST as I understand it to be on
every both that is required to produce the false teeth for her.
30 .
As I previously stated;
QUOTE
35 Mr. ISAACS (Victoria).-What I am going to say may be a little out of order, but I would
40 the object I apprehend is that there shall be no discrimination between the states; that
45 direct taxation. I am extremely afraid, that if we are not very careful, we shall get into a
not absolutely uniform.
END QUOTE
50 .
Again;
QUOTE
absolutely uniform.
END QUOTE
5 .
QUOTE
Mr. BARTON.-We were inclined to the opinion that "uniform" would not apply so
10 as to prevent the graduating of a tax. I am glad to have the suggestion from the
END QUOTE
.
15 National Australasian Convention) (Chapter 33 of the CD)
QUOTE
Mr. HIGGINS.-If that were the idea-that the Commonwealth were to be responsible for
these debts, and were to have no recourse as against the states-that would be something like
a guarantee, and, perhaps, it might be a wrong thing; but what are we to say about a
20 guarantee of this class when we find the Commonwealth can come back on the states for
any difference? Where is the guarantee there? It is an instance of what I referred to the
other day, as keeping the promise to the ear and breaking it to the hope in a remarkable
degree. If the Commonwealth feels that it can come upon the states for any deficiency,
where is the motive to the Commonwealth to impose the requisite taxation to obtain a
25 sufficient amount to meet the necessities of the state Treasurer? Although I voted in the
minority, I am very glad that the committee has so strong a sense of the importance of
giving some guarantee to the states Treasurers, but this is not the way to do it. It has been
said that we must trust the Federal Parliament, and the influences upon the Federal
Parliament, to secure that there shall be a sufficient guarantee to the states-a
30 sufficient surplus to the states. I would go as far as any one in trusting the Federal
Parliament, but I want to see that there is a sufficient motive in the Federal
Parliament to provide the necessary surplus to, the state Treasurers, and I cannot find
it. The Federal Parliament may be trusted to do its best for its taxpayers-its constituents-but
then the Federal Parliament has no sufficient motive to see that a state Treasurer is not
35 embarrassed. The Federal Parliament will know that if it does not provide a sufficient
surplus to the state Treasurers, the latter will have to tax the people but it is a very different
thing for the Federal Treasurer to feel that he must tax the people, and to feel that he must
leave the taxation to the state Treasurers. When you have to deal with a cantankerous dog, I
would far rather not tread on his tail myself-I would let the next fellow do it; and it is the
40 taxpayers' tail that has to be trodden upon. There are occasions which I can conceive when
the Federal Treasurer might say: I should like to put state Treasurers, or some state
Treasurer, under the obligation of treading upon the taxpayers' tail.
Mr. REID.-Some taxpayers think that taxes are the readiest method of getting rich.
END QUOTE
45 .
QUOTE

Sir GEORGE TURNER.-No; the security of New South Wales, to my mind, is as good
as the security of the Commonwealth, but it is no better. New South Wales has power to
tax, but the Commonwealth has power to tax for any purpose by any mode of taxation; and
when the [start page 1583] Commonwealth puts on its tax it, no doubt, will take priority
5 over any state tax. I am not prepared to say that the security of New South Wales is better
than the security of the Commonwealth, although, in my opinion, it is equally as good.
END QUOTE
.
The statement “but the Commonwealth has power to tax for any purpose by any mode of
10 taxation” must be understood to be limited by the intentions of the Framers of the Constitution as
otherwise expressed during the debates and so also by the Constitution itself, stated or embedded
as a principle.
.
QUOTE
Mr. HOLDER.-I want to show that it will not even do that. I am as conscious of the
difficulty of which the honorable member is thinking as he can be. I know the danger
connected with entrusting any Treasurer with a surplus, and the danger of leading him into
20 extravagance, If I could see an way, through the debts or any other method, of preventing
him from having a large unappropriated surplus, I would adopt every means to attain that
object, but I do not think that can be attained by this proposal, because, as soon as you
provide that the fluctuating difference shall be paid to or by the state, you find yourself in
this position: Then the Treasurer can expend as much as he likes, and he may spend almost
25 nothing, or he may spend the whole; he simply has to make a larger or smaller levy upon
the state account, according to the circumstances.
END QUOTE
.
QUOTE
Mr. ISAACS: The Bill may pass and someone take exception to it, with the result
that the Supreme Court may set it aside.
Mr. BARTON: There is enough ability in this Convention to define that matter in such a
35 way that we may have still the advantage of such a provision. Then comes in another sub-
section to which much exception has been taken in this Convention. It reads:
In the case of a proposed Law which the Senate may not amend, the Senate may at any
stage return it to the House of Representatives with a message requesting the omission or
amendment of any items or provisions therein. And the House of Representatives may, if it
40 thinks fit, make such omissions or amendments, or any of them, with or without
modifications.
The objection my friends, Sir George Turner and Mr. McMillan, have taken to this clause
is that if the suggestions are rejected the States House would be belittled. I do not follow
that at all. I do not see how if one House rejects the proposition of the other, as must
45 continually be the case in matters where their powers are co-ordinate, the other House is
belittled.
Mr. SYMON: Make it "amendment" straight out.

Mr. BARTON: You must look at it in this way, that you would then give power to
amend Taxation Bills and the Appropriation Bill, but I do not think a majority of
members will agree to that. We have to make our machine workable whatever we do, and
I for one think that if the Bill contains only the annual expenditure for ordinary services of
5 the year, it would be not only a very serious thing, but an extremely culpable thing, for any
House to reject the ordinary annual services for the year. If you come to a Bill for the
ordinary annual services under provisions like these, which put "tacking" out of the
question, there can be no excuse except resentment or revenge for rejecting it. If,
therefore, you take this power of suggestion as applying merely to a Taxation Act and
10 the ordinary annual Appropriation Act -for those are the only cases in which
amendments under this proposition of 1891 are not allowed-surely it is power enough
to give when you remember that a veto or rejection would be a thing which would throw
the whole country into confusion, and would only be proposed on account of resentment or
revenge. The government of the country must be carried on, and with the government its
15 public and annual services, and if those Bills which involve the salaries of the public
service and ordinary appropriations were to be rejected, why-Senate or no Senate-the
whole country of Australia, with a voice as strong in the smaller States as in the larger
States, would condemn such a course. It is only in respect to these two matters this
power of suggestion has been proposed. I find in the "Practice of the Legislative Council
20 of South Australia," written by the very learned Clerk of this Convention, Mr. Blackmore,
the nature of the compact which has actually been between the two Houses from 1857. It is
not a Statute, but it exists in such a way that it can be understood. Hon. members will find it
on pages 182 and 183 of that book. I will refer hon. members to another book, the "Practice
of the House of Assembly," in which Mr. Blackmore, on pages beginning at 333 and going
25 on for some dozen pages or more, has defined the whole process of the negotiations which
took [start page 384] place, and has given in full the resolutions and messages of both
Chambers. I am informed-and I think there are gentlemen in this Chamber who can say
whether I am right or wrong-that this plan has worked with considerable success in South
Australia. Mr. Playford, now Agent-General for the colony in London, but then Premier of
30 South Australia, made strong reference in the debates in 1891 to the question, and I am
further informed that while there have been occasional differences in the carrying out of
this work of legislation, and making suggestions-the House to whom the suggestion is
made either adopting or rejecting them-the average result has been an improvement in the
relations of the two Houses, and a considerable improvement in many cases of the
35 legislation sent from one House to the other. I really cannot see why the adoption of the
process of suggestion should belittle either House. In those cases in which suggestion was
provided in the 1891 Bill I would not concede the power of amendment, but the power of
suggestion there sought to be given to the Senate is one that we might well import into the
Constitution as a means of settling differences, to prevent such a calamity as a deadlock or
40 the rejection of the ordinary Appropriation Bill.
Mr. REID: It is just possible that the power of suggesting these amendments might
provoke that calamity.
Mr. BARTON: We must not be so conservative as all that; and I do not think my friend
is generally so conservative. I do not think if we see a proposition made which has worked
45 well in the light of experience-
Mr. REID: We do not get it here.
Mr. BARTON: Well, we have very good authorities. We have such authorities here as
Sir Richard Baker.

Mr. REID: Hear, hear.
Mr. BARTON: And Mr. Playford. Mr. REID: Hear, hear, and Mr. Blackmore.
Mr. BARTON: Mr. Playford is a politician of long experience, and has held high
positions here. I say why should we hesitate to adopt such a plan when it is a proposal
5 which, on the face of it, is consistent with, and has a tendency to, courtesy and good feeling
between the two branches of the Legislature? Surely we will adopt that proposal, instead of
running away from any difficulties which we cannot very well state, but only imagine,
while we have before us the fact that it has promoted courtesy and good faith in legislation.
Sir JOHN DOWNER: That is only compromise.

10 Mr. BARTON: I dare say it is compromise. I am not so uncompromising as my hon.
friend Sir John Downer, or some other gentlemen who sit near him; but I may say that I
honour gentlemen who, having once arrived at opinions, are reluctant to give them up
readily. I think, however, that we are here to compromise, and, that we shall have to
compromise to obtain the assent of those who sent us here to do what we are doing. It is
15 said that to concede the powers of which I have spoken, would impair responsible
government. I cannot say, nor can any man, that that would be the effect. If the object is to
have responsibility to one House alone, I say the responsibility is not taken away from that
House. We should not withhold the power to amend in the case of Bills which are not
strictly Money Bills. The additional power is in the cases of certain classes of Money Bills,
20 to have them sent up separately as to the objects which each defines with the power of
rejection or veto as to each Bill separately sent up, instead of having them sent up in such a
state that the Second Chamber would only have the intolerable and unfair alternative of
either rejecting the Bill-which, though it might contain a legislative proposal which would
be distasteful, might also contain a quite separable proposal with which it would agree - or
25 else [start page 385] accepting a taxation they believed to be injurious to the community in
order to pass the proposal to which they did not object. We should at all hazards avoid
this. Why should there be such a difficulty about there being a veto allowed in matters of
detail. Veto is no such uncommon thing. I believe it exists in the Imperial Parliament. May,
under the head of "Rejection by the House of Lords of Provisions Creating a Charge,"
30 says:
The right of the Lords to reject a Money Bill has been hold to include a right to admit
provisions creating charges upon the people when such provisions form a separate subject
in a Bill which the Lords are otherwise entitled to amend. The claim of privilege cannot
therefore be raised by the Commons regarding amendments of such Bills, whereby a whole
35 clause, or series of clauses, has been omitted by the Lords; which, though relating to a
charge and not admitting of amendment, yet concerned a subject separable from the general
objects of the Bill.
So it is here, if two legislative proposals for expenditure outside the annual services of
the year, or two propositions for taxation are submitted. If they are embodied in one
40 Bill, I take it, it is an unfair provision, because it does not enable the Senate to exercise
its power of veto on one proposal, though it may not be in favor of both.
Sir GEORGE TURNER: One might depend entirely on the other.
Mr. BARTON: That would not be a case of two separable propositions.
Sir GEORGE TURNER: Take the Land and Income Tax Bill.

Mr. BARTON: They are proposals which should never be in one Bill together. If
there are two propositions more dissimilar in their incidence than a land and an income tax
they are hard to suggest. One of them-the income tax-comes from the earnings or
profits of the people, or of that portion of the people who, I was almost guilty of
5 saying, are to "hump the swag"-at any rate they are to bear the burden. But the
other-if a tax on the unimproved value of land-has no relation to the earnings or the
thrift or the solvency of the person owning the land, and taxes that land on its
unimproved value whether the owner makes a profit out of it or not. I am not attacking
these forms of taxation, but I do say this: that it is impossible to imagine two taxes more
10 diverse their very root, and I think Sir George Turner could not have selected a better
example of two taxes which ought not to be included in one Bill. I venture to say this is
undoubtedly cutting down the right of the Senate to protect the State, and preventing them
from voting upon matters that should be put separately. I believe most of these matters have
been well, and fairly dealt with in the Bill of 1891. I know some members are ready to
15 accept the proposal providing that a referendum is also prescribed. I will go into that
directly. have heard it said that if there are two Chambers in the Federation, and a proposal
is carried in one by a majority, and in the other Chamber, representing the States, the
majority of the representatives, who do not represent the larger population, negative the
proposal, that House takes control. We have heard it said that veto means control; I
20 think we have heard it argued here, and I ask those who think the right of veto means the
right of control to consider this question: Will they in their own colony allow the second
Chamber to have the sole right of initiation and amendment of Money Bills, and agree that
they keep control of the Government by giving only the veto to the Lower House?
END QUOTE
25 .
QUOTE
Mr. HIGGINS: It is simply this, be cause the practice as to the rights of the two Houses
30 has become so settled, so stereotyped, that there have been less conflicts about Money Bills
than formerly. But although my friend, Mr. Wise, says the main questions which divide the
people to-day are social questions-although that is quite true-still you cannot dissever the
Money Bills from the policy upon which the money is spent. You cannot dissever
Taxation Bills from Appropriation Bills.
35 Sir JOSEPH ABBOTT: Hear, hear.
Mr. HIGGINS: The whole power of appropriation is based upon taxation, and you
cannot draw the line between them in that arbitrary way.
Sir JOSEPH ABBOTT: Hear, hear.
Mr. HIGGINS: You may take it in any way you like. Suppose there is a certain scale of
40 payment to the federal servants. Suppose the Appropriation Bill says you must pay a
servant of the Federation so much, and the Treasurer finds that he must get so much money
to meet those payments, he brings in a Taxation Bill for this purpose, the Senate says "We
cannot amend an Appropriation Bill, but we can amend a Taxation Bill," and they knock
off this and that item, and thereby stop the appropriation in an equally efficient manner. I
45 feel this is not the time for a long debate. Holding strongly, as I do, my views on the
subject, I am very anxious that there shall not be the semblance of stone-walling to prevent
Sir John Forrest obtaining a vote upon the clauses. I am determined he shall have his vote
as far as I am concerned, and let the public see that it is by means of that vote that
Federation will be wrecked, if it is wrecked. I cannot go to the full extent of my feelings in
this matter, but I would appeal to hon. members, before it is too late, to say that they will
follow out that compromise, at the very least, which was suggested in the Convention of
1891.
END QUOTE
5 .
QUOTE
Sir JOHN FORREST: Do you expect to have everything your own way?
10 Mr. BARTON: I am not saying that: I am saying the very contrary. I am not going
largely into the practical conditions which may arise if the States Assembly or Senate is
allowed the power to amend Tax Bills. I hold rather strongly that if we are to have two
Houses, and intend to act upon the principles of responsible government, and conserve
those principles, we ought not to put in the hands of one House the ability to utterly destroy
15 the financial policy of the Government. The expenditure depends upon the taxation, and
if the taxation is so altered in its passage through a Second Chamber that the
expenditure, which is perhaps sanctioned upon the Estimates, or about to be
sanctioned upon the Estimates, proposed by the government is lessened, that right to
amend the Taxation Bill practically means the right to cut down the Appropriation
20 Bill, too.
Mr. DEAKIN: Hear, hear.
Mr. BARTON: Supposing that with the raising of £300,000 of taxation the Government
will be enabled to make ends meet for certain items of expenditure by the Commonwealth,
and supposing that they cannot get a Bill providing for that taxation through the
25 Senate, but that the amount is cut down by £100,000, that must mean a corresponding
reduction in the expenditure embodied in the Appropriation Bill. One hinges upon the
other. It may be subtle enough for some of our friends to say they do not claim the right to
amend the Appropriation Bill, but they really want the right to do so without saying a word
about it. They may say "We will take your Appropriation Bill with its provision for so
30 much expenditure," and leave you in the lurch to find some means of taxation to make that
amount up. That makes them masters of the situation. It is not like the right of veto,
because in exercising that right and taking the extreme course of vetoing such a measure
right out, a House takes on itself the whole responsibility. If, however, it is merely a
question of amendment, that House can say, "Oh, it is merely a matter of arrangement." But
35 all the same the question is whether the policy of the Government shall proceed or not. If
we come to that pass, such an alteration in the policy of the Government means that there is
a divided responsibility. Because what is the position? If those who are in the House of
Representatives-Ministers and members-have to accept these amendments, and then say to
the people who sent them there, and who must according to their numbers pay the taxation-
40 "Oh, well, we wanted to carry out our policy, but the strong Senate which exists has cut it
[start page 555] down, and we thought we had better take all we could rather than get
none"-where is the principle of responsibility? Instead of Ministers being responsible to the
people through the House of Representatives they are responsible, some may say, to the
people through both Houses. That is a divided responsibility; that is not carrying out the
45 principle of responsible government with responsibility to one House. Although some may
argue that the ultimate responsibility is to the people, we are not here to consider the
process to be arrived at at very long last. A machine that will only work with a very much
larger expenditure for oil than the machine itself originally cost is not an effective machine
in the work-a-day sense of the term. And that is the difficulty that is in front of us, and
which I submit, if we do not adopt this amendment, we cannot get over. Look at the
position of this matter. We are told by Sir Edward Braddon that we who are not agreed with
him are capable of seeing a thing applicable to ourselves, but are entirely blind to it when
urged on behalf of the smaller States. There is not, however, and has not been, a difficulty
5 in getting the smaller States to accept the Bill in the light of the compromise of 1891. I
believe before this debate closes there will be evidence produced that there has not been a
difficulty either in South Australia or Tasmania in getting the clauses passed in the shape of
the compromise of 1891. That is the answer to my friend Sir Edward Braddon, because his
people have been able to see this matter in the light of the honest compromise of 1891.
10 They have shown they are able to accept a Bill in that shape, but in New South Wales there
has been the very greatest difficulty in obtaining from meetings of electors any approval of
the 1891 compromise, and if matters are to be taken further than that I only put to my
fellow members the difficulty that will arise in endeavoring to get the electors to go that
one step further. Certainly, as has been pointed out, the Parliament can suggest an
15 amendment, but if that comes to the Convention the latter will say, "That is only a
suggestion from the Parliament of New South Wales. We are not going to abide by that." If
the evidence at the mouths of men who cannot be disbelieved is of any practical value-and I
take it that the experience of the large majority of representatives from New South Wales
will outweigh the view of my friend Mr. McMillan, much as I respect him-then I say it has
20 been a difficulty of the greatest character from the first to obtain an approval of this form of
compromise which was made in 1891 from the electors of a colony such as New South
Wales. I will not speak about Victoria, because I am not so conversant with the
circumstances of Victoria, and I will leave members of that colony to speak for themselves.
How, then, when this compromise has been arrived at, after much argument, after much
25 exhaustion of practical effort by experienced men on both sides-how, then, if there is a
colony entitled to be considered here which is not like other colonies that have signified
their approval, but which has by criticism in the press and in various other ways manifested
some repugnance to the scheme-how can it be said that to drag that colony over the line
will be a step towards Federation? If you alienate the public feeling of those who are
30 entitled largely to be considered, how can you say that you are moving towards Federation?
If you alienate colonies which are difficult to move from certain principles of settled
government how can you minimise the difficulty which we, who belong to those colonies,
must have in endeavoring to obtain approval of the work of this Convention if it is marked
by what they consider is an indelible stain upon it? That is a matter which relates to the
35 whole of the processes under this Convention, because if you alienate the public feeling at
this early stage, just fancy the Herculean task afterwards in pulling back that feeling into its
proper place. How can we underrate the difficul- [start page 556] ties that beset us in a
matter of this kind? Are we not entitled to plead for such a course of action as will not lead
to disastrous results? That is the position I take up in reference to this matter in arguing
40 strongly one way or the other as to the effect of this amendment on constitutional
government. I have placed on record before this morning what I think about that. I have
been one of the first, as the records of 1891 and since will show, to lay down that there is a
measure of justice which must be conceded to the less populous States. I have faced public
opinion as far as any man can face it for the purpose of ensuring that there shall be justice
45 done, so long as we preserve the principles of responsible government. Now, what was
done in the Convention of 1891? And let it be recollected that there were extremists on
both sides. Let us take the argument of Sir Edward Braddon, who stated that:
They are capable of seeing a thing as applicable to themselves, but entirely blind to it
when urged on behalf of the smaller States.

The argument is endless if used on both sides, and simply amounts to a turn-about and
turn-about. In 1891 there were those who upheld the ultimo ratio of responsible
government, and there were those who upheld the ultimo ratio of State dominance. One
side claimed entirely co-ordinate powers of the Senate, while the other side stipulated that
5 the Senate should have practically none. There was a long debate, out of which the middle
line of demarcation was arrived at.
END QUOTE
.Again
QUOTE
10 The expenditure depends upon the taxation, and if the taxation is so altered in its
passage through a Second Chamber that the expenditure, which is perhaps sanctioned
upon the Estimates, or about to be sanctioned upon the Estimates, proposed by the
government is lessened, that right to amend the Taxation Bill practically means the
right to cut down the Appropriation Bill, too.
15 END QUOTE
.
There would be absolutely no need for the whole of the argument in this debate about taxation
Bills if they were intended to be to be applicable from whenever they were enacted. The truth is
that Taxation Bills only apply for the financial year they are enacted for in support of that years
20 Appropriation Bills and no longer.
.
QUOTE
25 Mr. BARTON: As the hon. member who has just sat down has referred so fully to what I
have said, I should like to put myself in the right position. I lay down two principles. The
one is that a question of mere procedure, where rights are given by our Constitutional law,
is to be settled between the Houses themselves, and that there never was a Constitution in
the world which gave any judiciary the power to inquire into the manner in which the
30 Houses settled their procedure in those matters; but where it is a question of the
presentation of a law, when passed, in such a shape, on the face of it, that one House is
deprived of its fundamental rights as a component part of the Constitution, that
should be settled by the arbiter of the Constitution. Was it ever attempted in this world,
on a question whether a Bill originated in this House or that, or whether that House
35 amended it or not, which is a question of fact, to allow a Supreme Court to be the arbiter of
its validity? That has never occurred, and never can. No Court should be allowed to
inquire into the manner in which two Houses adjust relations between themselves. If
we give these two Houses the privileges which, according to the decision of the
Committees in 1891, according to the decision of the Convention of 1891, and according to
40 the decision of the Committee now, it is intended to give-the powers, privileges, and
immunities of the House of Commons-they will stand, as the House of Commons has ever
stood, against any encroachment or infringement by any Court whatever inquiring into its
method of regulating its procedure.
Sir EDWARD BRADDON: Hear, hear.

45 Mr. SYMON: It is not within the power of the judiciary to do so.
Mr. BARTON: It is not in the judiciary's power, as given in this Bill. But the question
whether, what appears on the face of a law is within the provisions of the Constitution
or not, is a totally different one, and that question alone the arbiter of the Constitution
has a right to decide. I desire to adhere to the compromise of 1891. I have been
endeavoring to do so against some delegates, who, however, will now find me faithful in
adhering to it on their behalf. Where there are matters not matters of procedure-where the
effective rights of a [start page 585] component part of the Constitution are involved-the
5 Constitutional principle is that the arbiter of the Constitution-must be allowed to protect
those rights. You have not it so in England because the Parliament there is Sovereign,
but you have it in the Federal Constitution, because you have a Parliament that is only
a part of the Constitution, and that Constitution must protect those provisions of the
Constitution which are threatened with infringement. I shall resist all amendments in
10 these respects because I consider the principles, which are altogether principles of justice,
ought to protect Parliament in the exercise of its internal powers, and protect the people as
to what is on the face of a law a breach of the Constitution
END QUOTE
.
15 It should be understood that the federal Parliament and the State Parliaments are “constitutional
Parliaments!
.
20 QUOTE
The Hon. A. DOUGLAS: You have had more than you ever gave; therefore, you need
not complain. In 1841 Victoria formed a part of this colony, and then what happened? It
found that it was badly represented in New South Wales. It was determined in some way or
other to show its opinion of New South Wales and the Government of New South Wales.
25 What did it do? Earl Grey, the Secretary of State for the Colonies, was elected to represent
Melbourne in the Legislative Council of New South Wales. Shortly after that year they had
a constitution of their own, New South Wales had constitutional government, and
Tasmania had constitutional government.
END QUOTE
30 .
QUOTE
Dr. COCKBURN: There have been only four amendments in this century. The hon.
member, Mr. Inglis Clark, is a good authority on America, and I am sure he will agree with
35 me that out of sixteen amendments only four have been agreed to in this century. All the
other amendments which have been made were really amend- [start page 198] ments which
were indicated almost at the very framing of the constitution, and they may be said to be
amendments which were embodied in the constitution at the first start. The very element,
the very essence, of federation is rigidity, and it is no use expecting that under a rigid and
40 written constitution we can still preserve those advantages which we have reaped under an
elastic constitution. All our experience hitherto has been under the condition of
parliamentary sovereignty. Parliament has been the supreme body. But when we embark
on federation we throw parliamentary sovereignty overboard. Parliament is no longer
supreme. Our parliaments at present are not only legislative, but constituent bodies.
45 They have not only the power of legislation, but the power of amending their
constitutions. That must disappear at once on the abolition of parliamentary
sovereignty. No parliament under a federation can be a constituent body; it will cease
to have the power of changing its constitution at its own will. Again, instead of
parliament being supreme, the parliaments of a federation are coordinate bodies-the
50 main power is split up, instead of being vested in one body. More than all that, there is
this difference: When parliamentary sovereignty is dispensed with, instead of there
being a high court of parliament, you bring into existence a powerful judiciary which
towers above all powers, legislative and executive, and which is the sole arbiter and
interpreter of the constitution.
END QUOTE
Again;
5 QUOTE:-
END QUOTE
.
10 "Subject to this constitution" means it must be interpreted to the intentions of the Framers of the
With other words, the NSW Colonial Constitution Act effectively became amended by the
Commonwealth of Australia Act 1900 (UK) by legislatives powers belonging to all Colonies
15 the Commonwealth of Australia Constitution Act 1900 (UK).
Therefore, since Federation no State Parliament could amend its own State Constitution as it no
longer was a "sovereign Parliaments" but a "constitutional Parliament", as like the Federal
20 propose to the State electors to amend the State constitution and then the State electors must
.
Hence, ask which State Parliament since Federation actually pursued this way to amend its State
constitution?
25 .
approval of the State electors by State referendum?
You find that the State of Victoria purportedly amended its State Constitution without a State
30 Likewise so in regard of any other subsequent purported State Constitution amendments!
.
QUOTE
35 Mr. ISAACS: Would the hon. member mind looking at clause 54 with regard to that?
Mr. CARRUTHERS: My hon. friend, Mr. Barton, forgets that he has already consented
to a departure from the principle of the 1891 Bill. If he looks at clause 52 he will find we
have amended that clause in the very direction that he objects to amend clause 53. The Bill
of 1891 uses the words:
40 Laws appropriating any part of the public revenue
An amendment has been carried which effects the very purpose which Mr. Barton is
contending against now. So that if there is any strength in the contention of the wisdom of
the 1891 proviso, the hon. member has given his case away. For the sake of consistency, he
should either support the proposal now made or else go back and have clause 52 brought
45 into harmony with clause 53. Mr. Barton speaks of the English Constitution. That is an
unwritten Constitution, and no court of law has, therefore, any statute to guide it in its
interpretation of that Constitution. But here we have a written Constitution. In clause 71
I see that-

The judicial power shall extend to all matters arising under this Constitution or involving
its interpretation.
My hon. friend, Sir John Downer, smiles, but if these words had not this meaning: that the
Federal Judiciary should have the power of construing, I am at a loss to understand what
5 they mean. It says so, and I take the words in cold type rather than listen to arguments
based on a Constitution which is unwritten. Mr. Wise says that we may nave the case of a
minority overriding a majority, coercing the Senate, and passing laws despite of this
regulation. Does not the hon. member know this, and I appeal to this Constitution to
support my argument, that any solitary member, either in the Senate or in the House of
10 Representatives, can immediately wreck a Bill infringing these provisions by drawing
the attention of the presiding officer to it. It is in the hands of any one representative in
either Chamber at any stage up to the final stage of that Bill to call attention to the
infringement of the Constitution, and to have the Bill ruled out of order. I may be told that
you may have a corrupt Speaker or a corrupt President, who will not rule it out of
15 order, but you are just as likely to have a corrupt Judge. So far as regards this matter,
any one solitary member of a minority-and it would be a very small minority that could not
number one-can, by drawing attention to the infringement of the Constitution, have the Bill
ruled out of order. Where can there be the coercion of a minority then, when it will be in
the hands of the minority to protect themselves by this simple appeal to the Chair? In such a
20 case, I say the Bill will have to pass unanimously, and where it passes unanimously why
leave it to the judiciary to wreck that which is the opinion of both Houses of the
Legislature?
Mr. WISE: Why have a judiciary at all?
Mr. CARRUTHERS: If it is the sole argument for a Judiciary that we should have such
25 a tribunal to wreck laws made with the approval of both Houses of Legislature, then let us
have no judiciary [start page 586] at all. If my hon. friend Mr. Wise wants a judiciary to
wreck the work of the Legislature, I do not think the people of Australia will support him in
that contention. This clause was never intended, as far as the people have read it, to give
effect to the arguments of either Mr. Wise or Mr. Barton. I hope that Mr. Reid will stand to
30 his amendment, and that if he does not move it others will do it. We shall have this point
decided by a test division.
Mr. WISE: I would suggest to Mr. Carruthers that the amendment should be rather in
this form: instead of saying that no law passed under this section should be inquired into by
the Supreme Court say:
35 No law passed by the Federal Parliament shall ever be inquired into by the Supreme
Court.
Mr. REID: The question just put by Mr. Wise shows the very strange position he
occupies. He does not seem to draw any distinction between the case he referred to in
America, where the Supreme Court of the United States ruled a Bill out of order on
40 the grounds that it was a violation of the principle of the Constitution as to a principle
on which taxation should be imposed, and not a mere case of procedure between the
two Houses. It seems to me that too much has been made of this point, which is
represented as an attempt to take away from the smaller States their protection. That
is a very good catch cry for, an argument, especially from New South Wales, when a
45 speaker is hard up for one. There is absolutely nothing whatever in it, as the Hon. Mr.
Carruthers has pointed out, and any member in either House can surely put a simple
question to the Speaker to decide the fate of a Bill that is contrary to the provisions of
the Constitution. My hon. friend Mr. Barton put a view just now which would wreck
any Taxation Bill in the world. He said that by the words "Laws imposing taxation
shall deal with the imposition of taxation only" in a Bill you can put any number of
clauses in there which would have nothing to do with the actual imposition of
taxation. If that were so it would mean a rich harvest for the lawyers of the
5 Federation, and I hold the view with others that our finances might be brought into
serious confusion thereby. Lately some taxation was imposed in a colony and it was
done in two ways-by a Machinery Bill and by a Taxation Bill. Under provisions of that
kind you would have the courts of the Federation flooded with applicants for
litigation. We do not want the legislation of the Commonwealth to be degraded to that
10 level. If we put in the Constitution a safeguard for the Senate that the Bill shall not be
more than is specified here, is the Senate going to be such a decrepit, helpless
creature, that, having a constitutional safeguard for its protection, it will be absolutely
too blind to see it? Not only that, but they say that every senator from all the States
will be so absolutely incapable as to give away one of the safeguards of the rights of
15 the Senate. Unless this Senate that we are about to create is going to be such a
despicable object such arguments as those used by Mr. Wise would have no weight.
While Parliament is legislating for the people, and when the two Houses have come to
an agreement that a certain thing should be law we do not want the High Courts to
come into the Parliaments of the country and shipwreck that which both Houses have
20 deliberately passed. With reference to the bogey raised about the referendum, there
are provisions in this amendment, which dispose of that argument, because in the
amendment I proposed to submit Money Bills should be liable to be questioned until
they become law, so that at any time when the referendum is going on, a Bill could be
easily questioned on a point of law in the courts. The absurdity of the contention of
25 some is shown in the fact that in America in neither of the two Houses would a glaring
violation of the Constitution be called attention to. I say further, if there is so much
importance attached to this we must go back and put the clause which [start page 587]
safeguards the other House in absolutely the same position. I have no feeling in this
matter except a desire that Acts of Parliament, when they become law, should have
30 the force of law and should not merely become food for lawyers. That is my only
desire. Anyone who has occupied the position of Treasurer can tell of the loss that
might be brought about if, after a policy had been brought into force, perhaps four or
five years afterwards, a point is taken on some innocent formal words of the Bill, and
the judges are compelled to declare that all of the money collected under the Act
35 during those years had been improperly collected.
Mr. BARTON: Would that justify a sweeping amendment?
Mr. REID: My object was such a simple one that I did not apprehend so much
as I was to prevent the possibility of such difficulties, but I see now that there is a great deal
40 more importance attached to it than I thought. The importance, I think, disappears when
we remember that any member of the House of Representatives, upon calling the
attention of the chair to the breach of the provisions, would kill the Bill there, and any
one senator, upon drawing attention to the same clause in the Upper House, could kill
the Bill there too.
45 Mr. WISE: Have you considered the position in America with regard to the Speaker,
who happens to bear the same name as yourself?
Mr. REID: The Speaker of the House of Representatives in America is really the leader
of a political party sitting in the chair, and surely we are going to draw a distinction

between the Speaker of our House and the partisan officer sitting in the chair there and
pulling the wires for the benefit of his party.
Mr. BARTON: Would you let the Constitution rest upon this matter?
Mr. REID: Clearly no Ministry would bring in a Taxation Bill and allow it to be so
5 amended. In America they move under a different set of circumstances altogether. As I
pointed out, there is a great difference between the procedure as to whether a Bill contains
clauses too many or not, and taxation itself in clear violation of the principle of taxation put
in the Constitution. I was pointing out that I look upon this merely as a matter of
procedure.
10 Mr. WISE: It is not a matter of procedure.
Mr. MCMILLAN: Is not the amendment to be limited to procedure?
Mr. REID: Entirely as between the two Houses, and that is my only desire.
Mr. WISE: Would not the defect, if there was a defect, under this sub-section appear on
the face of the Bill?
15 Mr. REID: If it appeared on the face of the Bill, we have to assume first that the
Government would bring in a Bill which on the face of it was illegal, and that there
would not be one pure soul in the House to call attention to it, and that even the
immaculate Senate would not contain an angelic mind that would do its duty to the
Constitution. Heaven help the Constitution if it is to be run on these lines! The Upper
20 House will not allow its rights to be violated if they are put in the Constitution, and
the object of the amendment is simply to prevent an unfortunate accident, which
would happen over and over again in Acts of Parliament, from rendering an Act after
it has received the Royal assent, and which might be, perhaps, the deliberate policy of
the country, accepted by vast majorities in both Houses, invalid. I would not have
25 proposed this amendment in face of the serious debate it has provoked. I proposed, if
no member of the Convention has a previous amendment:
To insert at the end of sub-section 4: "Money Bills shall not be liable to be called in
question in respect to any breach of the provisions of this section after the same have
become law."
30 [start page 588]
That would allow any exception to be taken to a Money Bill till it has received the Royal
assent, after which no such question shall be raised.
Sir GEORGE TURNER: We have devoted considerably over an hour to this

discussion.
35 Mr. REID: Perhaps Sir George Turner will allow me, and in order to get this matter
tested, I will apply the very same test which was applied to clause 52. I propose:
Before the word "laws," in sub-section 2, to insert the word "proposed."
I shall thus challenge the sense of the Convention in exactly the same manner as in the
previous instance.
40 Sir GEORGE TURNER: We have been discussing this matter for considerably over
an hour, and if we take as long over all questions we shall be here for some weeks, and
it seems the more we discuss it the more confused members will undoubtedly become
in connection with it. I do not propose to add to that confusion to any great extent. I
think there is some misapprehension with regard to the defects which might arise
under this subsection. It may be that if the Parliament did not follow out the course
5 here laid down the Federal Court would have the right to declare the whole law to be
void. Well, that would never do. It would never do after a law had been passed
voluntarily, without any compulsion such as Mr. Wise speaks of, the Parliament fully
believing that they were doing everything right, and the Treasurer had acted on it,
and collected a large amount of revenue, for him to find, because some small slip had
10 been made, that the law was absolutely void. At the same time we do not want it to
appear that in making any alteration we desire to, take away from the smaller States
any protection which they may think they have under this. No one desires to give any
ground for it, and I do not think any alteration we could make would take away the
protection, because the protection is undoubtedly with the Senate. The only difficulty
15 which might arise would be that the point in question might be overlooked. Therefore
if we would lay on somebody the duty of certifying before the law passes that it was in
compliance with this section we could give all the protection required.
Mr. O'CONNOR: Then you would leave it to the person who certifies to interpret
the law.
20 Sir GEORGE TURNER: No; when the law has once passed the court should not
have the liberty to interfere, and say on some small question of procedure that the law
should be upset I would leave it to the Senate.
Mr. REID: They will take care of themselves.

Sir GEORGE TURNER: Let it be the duty of the President for the time being to certify
25 that the proposed law was in compliance with this section. It will then be his duty before
putting in such law-
Mr. REID: The Senate could make a Standing Order to meet that.
Sir GEORGE TURNER: No; in order to prevent any doubt arising among the
representatives of the smaller colonies that they might be injured, I would suggest to Mr.
30 Barton to adopt that mode, and make it appear that, while the Court had no right to
interfere with the Act when it was once law, yet before it became law every
opportunity should be taken to see that that section is not infringed. I would leave it to
the President of the Senate to certify, either by himself or on a resolution of the Senate, that
the proposed law was in accordance with this section, so that there would be a statutory
35 duty on him to consider before the law was passed that there was no infringement of it.
Mr. GORDON: It might be passed in one, sitting.
Mr. BARTON: Would you prevent the Governor giving his consent without the
certificate?
[start page 589]

40 Sir GEORGE TURNER: Something like that. I quite agree with the smaller States that
there should be some provision by which they could not be injured, but I feel very loth to
go the full length of giving the court power to interfere with the Bill when it is passed.
Mr. MCMILLAN: Perhaps a bewildered layman might mention what I understand to be

the exact position. I understand if we add the word "proposed" before "laws" it would then
be really a matter of procedure, and that the introduction of the word "proposed" before
"laws" would make it practically a Bill, and that otherwise the question of whether the
measure is constitutional could not be dealt with.
Mr. BARTON: It will prevent the High Court from inquiring into it.
5 Mr. MCMILLAN: According to the amendment proposed, it would prevent any mere
slip of procedure from making invalid an Act which may affect the whole country and its
financial operations, but nothing which we may enact with regard to procedure will
prevent any suitor from going to the High Court if the Act is essentially
unconstitutional. That is the way I look at it, and it seems to me that either putting in
10 "proposed" before "laws," or adding an amendment somewhere or other making it clear that
no mere slip of procedure can invalidate the law, would meet all the difficulties.
Mr. BARTON: This is not proposed to cover mere slips, but everything.
Mr. MCMILLAN: I do not think that could be the intention. We are attempting to
legislate for a very limited possibility. You will get disputes so long as there are lawyers
15 in the world. I do not know whether Federation will do away with lawyers.
Mr. BARTON: Not until merchants will cease to quarrel.
Mr. MCMILLAN: If so it would simplify our arrangements very much. At the same
time it does seem that there ought to be something introduced to prevent the law being put
into operation for a mere breach of procedure, if there is such a chance.
20 Mr. SYMON: There is no chance.
Mr. MCMILLAN: I do not suppose that any ordinary moral layman would do it,
unless he were instructed by a less moral lawyer.
Mr. HIGGINS: There seems to have been infused in this debate an amount of spirit, and
I am going to incur the risk of the ordinary peacemaker. There has been no reference to the
25 common-sense provisions which are put into all articles of association with regard to
digressions from the prescribed routine. On the one hand, there is no doubt that there is no
covert design to injure the smaller States and their representatives, by attempting to impose
upon them laws which are not in the ordinary course as prescribed. I think the members for
the minor States will accept that assurance. But, on the other band, there is no desire on the
30 part of the minor States advocates to give the lawyers more work than they can possibly
help. But there is no doubt that these sub-sections 2 and 3 of section 53 are calculated to
lead to questions in the courts which ought to be avoided if possible. Take sub-section 3:
Laws imposing taxation, except laws imposing duties Customs on imports, shall deal
with one subject of taxation only.
35 What is meant by one subject of taxation? Suppose a land tax is imposed, you tax posts
and rails. That may be argued not to be a law dealing with one subject. There are questions
which will certainly arise which will be fruitful in litigation unless we take great care.
Therefore, I am in thorough accord with the desire of the Premier of New South Wales to
have some clause which will obviate the bringing of these trivial matters into the court, and
40 under which a great wrong will be done on the ground of some trifling breach of the Act.
What is done in the case of articles of association? There are in articles of association pro-
[start page 590] visions for meetings to be held, for the holding of meetings in a certain
manner, and for a number of directors, and so forth. But there is always a clause for any
accidental omissions; to comply with the articles is not to invalidate the resolutions of the
meeting. I would suggest this should be done here. All we want to provide against is
accident, mere accidental omissions. I would suggest the following:
Any accidental failure to comply with the foregoing provisions of this section shall not
invalidate any proposed law to which the Federal Parliament has assented.
5 Mr. REID: That would make it worse.
Mr. HIGGINS: But I would provide that the failure shall be treated as accidental, in this
way. I would go on to add:
The failure shall be treated as accidental if it has not been brought to the attention of the
President of the Senate or of the Speaker of the House of Representatives.
10 Mr. BARTON: This procedure is to be brought before the court by way of affidavit,
then.
Mr. HIGGINS: It is a simple matter. The mere fact that you define the accident in this
form-that is to say, when no one has brought it before the Speaker or President-is quite
sufficient. Even if the word "accidental" were not defined, it is a regular expression used in
15 articles of companies, and there has never been any question of difficulty raised with regard
to it. It would be very easy to say that it should be treated as accidental unless some
member of either House brings it before the Speaker of the House of Representatives or the
President of the Senate. I feel-sure that the experience of companies for many years past is
the best experience we can have for dealing with any irregularity of this sort. I do not want
20 to move this as an amendment, but if the honorable the Premier of New South Wales would
accept it I would be very glad. It might be better for us to leave it to the Drafting
Committee, with instructions that some form of words to carry out this idea should be
adopted. I am not prepared to move anything on the spur of the moment, but I feel sure
something of the kind I have suggested would be the correct way of getting over the
25 difficulty.
Mr. O'CONNOR: I think it is a misapprehension on this question to say that it is a

matter for lawyers, and not of sufficient importance to be considered worthy of a full
discussion. But I think it is a matter of the utmost importance, because it is one of the
guarantees in this Constitution to the people represented in the Senate. I wish to put it as
30 shortly as possible from that point of view. The Senate, by section 53, have certain
limitations upon their powers. They are not allowed to deal with an Appropriation
Bill appropriating the necessary supplies for the ordinary annual services of the year;
they are not allowed to amend a Tax Bill; and they are not allowed to amend any
Appropriation Bill so as to increase any charges upon the people. That is the
35 limitation which is put upon the power, not only of the members of the Senate, but it
indirectly affects the rights of the people of the different States they represent,
inasmuch as you have your States represented in the Senate. That is a limitation on the
power of the States, and therefore in that limitation not only the members who represent the
States at a particular time, but every member of the States interested has a direct interest in
40 that portion of the Constitution. Now, in order that that right shall be exercised only in the
strictest possible way you must surround it with some safeguards, and these safeguards
become necessary for this reason, that it is well known where legislation is carried on by
two Houses it is a common practice to evade laws of this kind, which are merely laws of
procedure, and it is very easy to evade them. For instance, it is very easy to evade a law
45 imposing taxation by inserting some provision in the Bill which it will be very difficult
for the [start page 591] Senate to reject, and which would put the Senate in a very
awkward position in the public eye if it did reject it, but which at the same time make
it necessary if they pass it to pass an obnoxious system of taxation. A proposal of that
kind is not unknown. Take the next sub-section-
Laws imposing taxation, except laws imposing duties customs on imports, shall deal with
one subject of taxation only.
5 It is not an uncommon thing to introduce a Tax Bill containing a tax on land which
might or might not be objectionable, or a tax on income which might or might not be
objectionable.
Mr. REID: Where is there a law against it?

Mr. O'CONNOR: I will deal with that by-and-by. I point out that in the absence of a
10 law, and the very absence of a sanction which will enforce the law, provisions for getting
over the procedure of the House are very common. The next provision is:
The expenditure for services other than the ordinary annual services of the Government
shall not be authorised by the same law as that which appropriates the supplies for the
ordinary annual services, but shall be authorised by a separate law or laws.
15 That is meant to be directed to the provision of tacking which is very often met with in the
process between the two Houses. Tacking to the Appropriation Bill is not a device that
is unknown in these colonies.
Mr. REID: Is it forbidden in this section?

Mr. GLYNN: It is not prevented by this section.
20 Mr. O'CONNOR: It is not excepted in the way which I will point out now, by making
an infringement of this Act a penalty, that is to say, a penalty that the Act which infringes
provisions, or if you make it so obligatory that if they are not complied with the Act
shall be void. I point out, in regard to these three different matters, that these are ways in
25 which proposals of this kind between the two Houses are affected. It is said that is only
between the two Houses. In any question between two Houses you will always be brought
face to face with the condition of things which exists between the two Houses now. A law
which may be introduced in violation of one of these sub-sections maybe believed to be a
violation by the Senate, and thrown out on that ground, and be sent back. It may be sent up
30 again by the House of Representatives, and so by that way you have a question which,
instead of being settled, becomes a matter of contest between the two Houses. Another
matter of difference between the two Houses we know. It is where one House happens to
take an unpopular view of a question-a view which for the time being is not the view of the
majority of the people. We know it is easy to bring the pressure of the majority of public
35 opinion on one House for the purpose of obtaining a violation of the law. This is not
intended to be a protection to the House or the Representatives of the House, but to the
States represented in the House; that no matters of tactics between the Houses, or no
playing off of public opinion by one House against another, shall ever take away the
protection embedded in the Constitution for the States. I have heard of the argument of the
40 inconvenience of laws being upset on account of some invalidity being discovered-some
trifling invalidity, perhaps. I say you must submit to that inconvenience if you wish to enter
a Federal Constitution. The very principle of the Federal Constitution is this: that the
Constitution is above both Houses of Parliament. That is the difference between it and
our Houses of Parliament now. The Federal Parliament must be above both Houses of
45 Parliament, and they must conform to it, because it is in the charter under which

union takes place, and the guarantee of rights under which union takes place; and,
unless you have some authority for them to interpret [start page 592] that, what
guarantee have you for preserving their rights at all. It is very necessary to insert this
provision in the Constitution, because if you do not do that then these questions are
5 questions of procedure between the two Houses in which undue pressure may be brought to
bear at any time on one House or other for the purpose of vetoing a law and doing injustice
to the States represented in that House in the different ways in which the States are
represented. As to the inconvenience, there are thirty-two different subjects of legislation
here which may be dealt with by the federal authority, and in regard to any one of these if
10 an error is made which takes the law outside the authority which is given to the federal
power it is invalid-absolutely void-no matter what inconvenience may follow.
Mr. ISAACS: That is not a rule of procedure; that is jurisdiction.
Mr. O'CONNOR: With every respect, that is begging the question to put that as an
argument.
15 Mr. ISAACS: That touches on State rights.
Mr. O'CONNOR: I admit that. In fact the whole thing is founded on State rights because
if your amendment, using the word "proposed," is carried it is a matter of procedure; but if
the word "laws" remains it is not a matter of procedure.
Mr. ISAACS: That is what you have done on clause 62.
20 Mr. REID: Why did the Drafting Committee alter that from the Bill of 1891?
Mr. O'CONNOR: With all respect to that hon. member, the Drafting Committee did not
alter that. It was altered by the Constitutional Committee, and I think very properly,
because the initiation of a Bill is a different thing altogether from any of these questions.
The initiation of a Bill is a matter which does not limit the powers which are given under
25 section 53 to the States.
Mr ISAACS: Surely the initiation of Money Bills gives much more to the liberties and
rights of the people.
Mr. O'CONNOR: That goes really into a legal question. The difficulty of dealing with a
matter of that kind is the manner in which it has to be raised before a court.
30 Mr. ISAACS: Same principle.
Mr. O'CONNOR: So long as you have a principle that if a law, on the face of it, is
invalid, it is a matter which the Court can decide, the matter of initiation is not a matter of
that kind. The principle involved here is exactly the same principle involved in the question
decided in America as to the uniformity of taxation laws. The populations of the States
35 had a right to insist that no tax which was not uniform should be imposed. And no
matter what the rights of the Senate, for the time being, that was the protection in the
Constitution against any action which might be taken, whether with the consent of the
Senate or without. I ask the Committee to adhere to the proposal in its present form,
not because it is a matter of protection to the Senate or the other House, but because it
40 is a matter of protection to the States that have entered into this union that that
limitation which is placed upon their power of amending a certain class of Bills cannot
be infringed or enlarged by the adoption of any ordinary tactics which may be used
under our present Constitution between the two Houses.

Mr. SYMON: I do not wish to detain the Committee more than a moment or two, but I
feel I ought to set myself right in regard to this proposed amendment. In doing so I wish, as
I have already done personally, to express my regret that perhaps it was owing to a
suggestion of mine that Mr. Reid's amendment assumed the shape it did. I accept any
5 responsibility on that score, but I hope he will forgive me if I am unable to follow it up by
voting for the amendment. I am, in this instance, an illustration of the value of discussions
of this sort, and I desire to express my in- [start page 593] debtedness to Mr. Wise and Mr.
Reid for their arguments, which have satisfied me it would be exceedingly unwise and
dangerous for us to introduce this amendment in this clause. I rather come back to my
10 original view that, substantially at least, the provisions of this section are intended as
provisions of procedure. So far as they are provisions of procedure, Mr. Reid has shown
conclusively that we have absolutely nothing to fear, because the House of Representatives
may be relied upon, and the Senate may be relied upon to see that the ordinary
preliminaries and the ordinary technical provisions are observed before the Bills are finally
15 dealt with. I was led away by a consideration of the inconveniences that might flow from a
taxation or some other Bill being declared invalid by the High Court some time after it
became law. But exactly the same inconveniences may possibly arise from any single Bill
passed under the thirty-five heads of legislation with which the Federal Parliament will
have to deal. Therefore it seems to me that, whilst undoubtedly inconveniences may arise,
20 still these inconveniences do not militate against a very salutary power which as a
Federation we propose to vest in the High Court of the Commonwealth. I will only add
this-without going into the details applied in so masterly a way by my hon. friend Mr.
O'Connor, when he pointed out the real safeguard in relation to these sections which
the High Court might be at the instance of a suitor-that we must remember if we seek
25 to derogate from the power we vest in the High Court of dealing with all laws which
any citizen of the Federation may claim to be unconstitutional, we are not invading
State rights, because it is not a question of small States or large States, but it is a question of
the liberty and rights of every subject throughout Australia. It is the subject that is
concerned in this; it is not the body politic, but every taxpayer-every individual who may
30 be assailed either in his liberty-
Mr. REID: But if both Houses are favorable to the taxes, is there anything in that?
Mr. SYMON: That does not matter. The moment you override or coerce the Senate-
Mr. REID: Coerce! Why, one man has only to get up and point out that it is contrary to
the Constitution.
35 Mr. SYMON: Suppose you have a majority in the Senate willing to override the law,
how is the minority to be protected, how is the State represented by that minority to be
protected, and every dissentient citizen in any of the other States, large or small? But the
point I wish to call the particular attention of the Committee to is that if we seek to prevent
redress being obtained in the High Court with regard to the constitutional position of any
40 law, we are invading one of the first principles underlying any system of Federation. My
hon. friend Mr. Carruthers seems to forget that we are dealing with Federation when he
talks about a High Court to wreck the work of legislation. First of all, that is an
inappropriate expression. If he means we are constituting a High Court to decide whether
the laws are constitutional or not, undoubtedly we are. If not we had better sweep this
45 Federation away at once-we are here on a wild goose chase. Were we to adopt the
amendment, I do not see that it would have the effect which Mr. Carruthers urged, if it were
hedged round with such limitations as Mr. Higgins alluded to; but if we pass this
amendment in its present form we run the risk of making Parliament, in regard to Money
Bills, the judge of whether it is acting within the Constitution or not. If we do that we are
striking at the root of a just Federation, and it is from that point of view, which was brought
very clearly before the committee by my hon. friend Mr. Wise, that I feel it impossible to
vote for an amendment which at the first blush seemed to get over some [start page 594]
practical difficulty. I think we had better omit it altogether. If we omit it we shall be acting
5 consistently in this: that we shall be making no exception to the power of the High Court to
interpret the law of the Constitution, and declaring whether an Act of Parliament is contrary
to that or not. Parliament is not supreme, and the very essence of the Federation is that it
should not be so. Parliament, as far as constitutional questions are concerned, is under the
law, and it must obey the law. If we make an exception in regard to Money Bills we had
10 better make an exception in the case of all other Bills which may arise under the provisions
of clause 51, and thus sweep away the High Court. I thought that we were all, agreed that
the reason for the establishment of the High Court was a salutary one, and that it would
determine constitutional law and practice. We must all remember that at one portion of the
history of England a question of liberty was raised by a humble individual named John
15 Hampden, who put forward a point on the subject of taxation. We do not know but that we
may have John Hampdens in Australia raising questions of liberty; it would be well to leave
the High Court of Australia to deal with such matters as that.
Mr. Reid's amendment, by leave, withdrawn.

Sub-section 2 as read, agreed to.
20 Sub-section 3.
Sir GEORGE TURNER: I desire to draw Mr. Barton's attention to these words in the
subsection:
Laws imposing taxation, except laws imposing duties of Customs on imports, shall deal
with one subject only.
25 That would require that every time you desire to deal with the duty of excise it should be
done by a separate measure. That cannot be the intention. It would very often happen that
the question of duty of Customs and the duty of excise would have to be discussed together,
and that it would be impossible to decide what ought to be done with regard to the one
unless you know what you will do with reference to the other. If we are to deal with the
30 large number of items included in a Customs Bill, I fail to see why we should not be able to
include in the same measure all duties of excise. I would ask the hon. member to consider
the matter, and either make an amendment or give us a reason for the retention of the words
as they stand.
Mr. BARTON: The reason why it has not been done so far is this: Sub-sections 2 and 3,
35 in consideration of the fact that laws imposing taxation are not subject to amendment by the
Senate, have been put in the form of protecting the Senate from the coercion which might
be involved in a taxation measure having added to it something which was not a taxation
measure, or a taxation measure having two distinct subjects of taxation brought into
the measure together. That protection is of course a counterpoise to preventing the Senate
40 from amending such measures. If what I might call the other side, in a genial way, had their
way this morning, it would be a question whether protection of this kind remains in the
compromise of 1891. The hon. member raises an important point, and that is whether there
is to be permission in the Customs Bill to have a corresponding excise. That is a matter I
must leave in the hands of the Convention entirely. For myself, I have no strong feeling
45 about it, except that we ought to keep as strong and inviolate as possible those
protections which are afforded not only to the Senate, but to the people themselves to
consider what under the Federal Government is involved in so separating the subjects of
taxation, and, as the next sub-section shows, the subject of appropriation, as to enable the
Senate to deal with them separately. The object of this, of course, is that inasmuch as
amendment is prevented the subjects should be so divided that no two subjects could come
before [start page 595] the Parliament together as matters of taxation, so that where the
5 Senate cannot amend they have the right of veto, and veto as far as possible in detail. Of
course they cannot have Customs or excise law in respect of so many items so that
there could be veto in regard to each, because veto in detail with all of these would mean
interference with the financial policy of the whole Government. But it has been
unanimously agreed in respect of taxation that the Senate should have a veto, and the
10 object of this clause is to divide into their proper categories all laws imposing taxation,
so that that veto may be exercised without interference and as a protection to the smaller
States and a protection of those rights which every Second Chamber ought to have, whether
it is the Senate of a Federation or a House made under the ordinary Constitution. That is my
object, and I am sure that the object would be infringed if the provision were to allow the
15 question to be considered in the same Bill. My position is this: that until I see very strong
reasons for doing otherwise it is my intention to adhere to the terms-I do not want to bind
anyone else-but I desire to adhere individually to the conclusions of 1891, because I think
they are the best basis upon which Federation can be secured. I think very strong reasons
should be adduced to allow the two subjects of taxation to be introduced into the one Bill,
20 and we should adhere as nearly possible to the Bill of 1891. Most of us contend that the
compromise or the conclusions of 1891 should be adhered to, and as we have succeeded in
our argument in showing that they should be adhered to in respect of one portion of the
clauses I think we should stick to them in regard to the other.
Sir EDWARD BRADDON: Although I entirely agree with the object of the clause in
25 one respect, I think it fails in the object intended to be given to it, and that is in the
exception as to laws for imposing duties of Customs. I question whether that exception is
sufficiently and carefully safeguarded. There is no doubt as an ordinary layman reads it that
under the laws imposing duties of Customs or on imports they can go on and impose
taxation in any other form. There is nothing to prevent the imposition of excise duties, and
30 there is nothing to prevent the law seeking to impose land or income taxes or anything else,
and therefore I hope, when the clause comes to be finally accepted, as I trust it will be, that
some limitation will be placed upon the exception in regard to duties. I think we all
understand what is meant, that a Bill imposing duties may necessarily have to deal with any
number of subjects liable to such duties, but as the subsection is worded it will go much
35 further.
Mr. ISAACS: An instant before Sir Edward Braddon called attention to this matter I was
directing Sir George Turner's attention to the same point. The intention is perfectly plain to
us at all events, but what may be done and what in future times may be contended is not
quite so clear. The sub-section reads:
40 Laws imposing taxation shall deal with one subject of taxation only.
Bills which impose duties of Customs on imports are entirely excepted from that
provision.
Mr. GLYNN: We can amend it.
Mr. ISAACS: Yes; and I think it should be made to read:

45 Laws imposing taxation shall deal with one subject of taxation only, provided laws
imposing duties of Customs on imports and of excise may deal with more than one item.

Sir WILLIAM ZEAL: I suggest that the best plan would be to postpone the clause
afterwards, and recommit it in order that the draughtsmen may re-cast it. We have now
been discussing the clause for a couple of hours, and have made little progress.
Mr. REID: I assure my friend Sir William Zeal that the matter raised by Sir George
5 Turner is very important.
[start page 596]
Sir WILLIAM ZEAL: Refer it to the draughtsmen.
Sir GEORGE TURNER: It is not a question of drafting.
Mr. REID: I would point out to Sir William Zeal that recommitting the clause might
10 mean fighting the matter all over again, and we want to get rid of it altogether. The point
raised by Sir George Turner is an important one. There may be a Customs Bill introduced,
and it may involve duties of excise on a large number of goods, and at present each excise
duty would have to be included in a separate Bill, and then a most unfair thing might be
done. Ten duties might be proposed, and eight, because they were popular, might be agreed
15 to, and the remaining two thrown out because they were less popular. If you have the
Customs as a whole you must have the excise as a whole.
Mr. FRASER: Surely duties of Customs on imports should be dealt with at the same
time as excise. That is only common sense, and might be agreed to at once, as we have
been wasting a tremendous lot of time
20 Sir GEORGE TURNER: I hope Mr. Barton will not mind me proposing to alter the
sub-section, as I know the difficulty of interfering with drafting, and I do not like to have
my own drafting interfered with. I will move:
That after the words "Customs on imports" there shall be added the words "and excise."
Mr. MCMILLAN: Do you mean that they should be in one Bill or two Bills?
25 Sir GEORGE TURNER: I think that they should be in one Bill.
Mr. MCMILLAN: Then you are making it necessary that there should be one Bill of
Customs and excise combined.
Sir GEORGE TURNER: I would not go that length.

Mr. WISE: I think the sub-section might be made to read:
30 Laws imposing taxation shall deal with one subject of taxation, and laws imposing
duties on imports shall deal only with duties of Customs and excise.
The difficulty my friend Sir George Turner suggests is that if you add laws imposing
duties on exports and laws imposing duties on excise you leave it this way: that you would
have to have as one Bill a Bill imposing duties on exports, and you would have to have
35 another separate Bill imposing duties on excise. I understand my friend may do this where
a Customs tariff is introduced and there are a number of balances in the same tariff at the
same time-Customs duties with excise duties.
Sir GEORGE TURNER: If necessary.

Mr. BARTON: Do we do that in our ordinary legislation? We bring in a separate Bill.

Sir GEORGE TURNER: We do not.
Mr. BARTON: I do not think it is the practice in New South Wales to go into Committee
of Ways and Means, both for Customs and excise, at the one, time; I think that is the Flame
in South Australia. It may mean a very important question to both Houses whether the
5 Customs duties should be in one Bill, and the duties on excise in another, or whether they
should both be in one Bill, and it is a question after all whether we should depart from the
arrangement here. I will put this case. It is easy to balance the duties on Customs and duties
on excise in one Bill if you do not regard certain contingencies which may arise, but if you
have another House to deal with and you have regard to the policy of taxation, then, in a
10 House to which you have conceded the right of veto, it is a different matter. If you include
several subjects in one Bill you will find the Senate ready to grant an excise on beer,
but not on tobacco, and it will not have the power to provide for that excise on beer,
without assenting to that on tobacco, inasmuch as the power of amendment is taken
from it. It would not have an opportunity of declaring itself on this, inasmuch as these
15 were placed in a sort of balance. So it remains a question whether these [start page 597]
duties of excise should not be in one Bill and Customs in another, and also whether-
END QUOTE
And
QUOTE
20 Mr. GLYNN: Yes. The clause is open to that construction. Look at section 52; it is there
provided that you cannot originate a Bill in the Senate whose main object is the
appropriation of supplies; but supposing you have a Bill whose main object is something
else, but whose collateral or minor object is appropriation, what is to prevent you from
originating that in the Senate?
25 Mr. BARTON: I do not quite follow my hon. friend's objection, but I take it to be this
the sub-section only forbids expenditure for services other than the ordinary services of the
Government in the Appropriation Act, and that inasmuch as those extra services are the
only ones forbidden, things which are not extra services, but independent matters of
legislation may be included in the Appropriation Act. The answer to that is that the
30 Appropriation Act can only include appropriation.
Mr. GLYNN: Where is that provided for?
Mr. BARTON: It need not be provided for, as far as I can understand. I think there are
understandings about these matters. When we speak of Bills of this kind, and that to which
the Convention has so long been accustomed, it would be idle and endless if we endeavored
35 to give definitions to all these matters, which would preclude the possibility of any
objection being raised.
[start page 606]
The things which are ordinarily understood are defined by an Act of this kind, and
inasmuch as the Appropriation Act is a law for the appropriation of the neecessary supplies
40 for the ordinary annual services of the Government, and inasmuch as that is a proposal of
legislation which is thoroughly understood, it would be perfectly beside the question to
contend that that Act could include services beyond the ordinary annual services of the
Government. It is conceded that it cannot include money services beyond the ordinary
services of the year, and inasmuch as it is a Money Bill it would be perfectly absurd if it
45 were attempted to be reasoned before a Court of Justice-if it ever came there-that, as the
only prohibition upon the extension of the Appropriation Act is that it cannot go beyond the
ordinary annual services, therefore there is an implied permission given to include in the
Appropriation Act matters of legislation which have nothing to do with monetary matters at
all. If the hon. member will look at section 53 he will see that, after providing that the
Senate shall have equal power with the House of Representatives, there is a preclusion of
amendment against the interests of the people in the way of increased taxes or
5 appropriation. The Appropriation Act is fairly defined in the clause. One must read the first
part of clause 53 with the sub-section to which the hon. member refers. It is clear, therefore,
if you read the two together, that the one Bill is to provide for the ordinary annual services
of the Government, and that beyond the ordinary annual services of the Government, which
are all matters of expenditure, there must be another Bill.
10 Mr. GLYNN: The way I read this section-and I think if hon. members look into it closely
they will agree with me-is that in the light of clause 52 you can introduce into the Senate an
Appropriation Bill, as long as you put in the same Bill matters of general legislation whose
importance overbalances the importance of the Appropriation portion of the Bill. I would
ask hon. members to read section 52. It says:
15 Proposed laws having for their main object the appropriation of any part of the public
revenue, or the imposition of any tax or impost, shall originate in the House of
Representatives.
I take the rule of construction to be this that you cannot have an affirmation without an
opposite-an implied exception without something not excepted-and in these clauses
20 mentioning certain things for their main object there must be something the opposite of
that. You may have Bills with appropriation for their main object, and Bills with
appropriation for their minor object, and something else for the main object. It would,
therefore, be possible to initiate in the Senate appropriations which are joined with matters
of big general legislation. That was never intended, but it is possible. Further, under section
25 53, you confer a power upon the House of Representatives of introducing matters
obnoxious to the Senate in conjunction with an Appropriation Bill, and of sending up at the
latter end of the Session the Appropriation Bill with this obnoxious matter in it for
acceptance or rejection by the Senate. You can, under the necessity of passing the general
supplies, force the hands of the Senate to accept a policy they do not believe in. This is the
30 history of legislation in the colonies, particularly in Victoria, but I am sure it was never
intended by the Committee that anything of the sort should be done. I would ask the Leader
of the House, Mr. Barton, if there is anything in this section to get rid of the implied effect
of section 52? He says that in the Appropriation Bill matters appertaining to the annual
supplies only can be dealt with. Section 52 speaks of-I will read it again:
35 Proposed laws having for their main object the appropriation of any part of the public
revenue, or the imposition of any tax or impost, shall originate in the House of
Representatives.
You may therefore have a Bill which is an Appropriation Bill in a subsidiary or secondary
sense, and dealing as its main object with mattters of general legislation, If that is go you
40 may [start page 607] force the hands of the senators into accepting a matter of general
policy, or rejecting through incapacity to amend the Bill altogether.
Mr. DEAKIN: Is there not set out practically a definition of the Appropriation Bill in the
several sub-sections of clause 53?
Mr. GLYNN: I think there is no implied limitation of its application to Bills
45 appropriating revenue, or which excludes the power of joining other matters.

Mr. DEAKIN: Does it not speak of appropriating the necessary supplies for the
ordinary annual services of the Government?
Mr. GLYNN: That is not a definition limiting its general purport, but excludes the
joining to two classes of supplies.
5 Mr. BARTON: Did you ever hear of the House passing a resolution after the Committee
of Ways and Means has sanctioned the expenditure, taking upon itself the responsibility of
amplifying that resolution to put other matters into the measure except-
Mr. GLYNN: I think the resolutions generally apply to supplies, but do not exclude
inclusion in a Bill with other matters.
10 Mr. BARTON: I think the hon. member is right in one sense and not in another. The
Committee of Ways and Means carries certain resolutions, which are received and read a
second and third time, and upon which the Bill is founded. Did the hon. member ever hear
of a Bill founded upon these resolutions that went beyond them?
Mr. GLYNN: Whether I did or not, my knowledge does not limit the possibility of
15 things. I know it would be possible after these resolutions were passed to introduce a Bill
dealing with the matter of the resolution and general legislation as well. No resolution
would be required to the latter. Is that not possible? I move to cure this by adding to the end
of sub-section 4 the words;
And no law appropriating any part of the public revenue shall have anything but
20 such appropriation for this object.
Mr. BARTON: What is the ordinary parliamentary process in these matters? I

cannot conceive of the Parliament of the Commonwealth doing other than accepting
the ordinary process, and if we do not conceive of this we had better not have these
clauses at all.
25 Mr. ISAACS: We would have to make a code.
Mr. BARTON: As my hon. friend puts it, we should have to make a code. How is the
Appropriation Act brought about? After a message from the Governor
recommending that provision be made for the ordinary annual supplies the House
resolves itself into a Committee of Supply, and then it passes its estimates, and after
30 these estimates are covered by the ordinary resolutions, at a later stage of the session
the Appropriation Bill is brought in. That Act cannot cover anything but these
matters which have in the ordinary estimates been passed. How can the hon. member's
argument apply in such a case. If the ordinary process is observed, and which we agree
must be observed, or else this machine which we are constructing will not work, then you
35 will have the estimates passed in a more or less mutilated form and covered by the
Appropriation Bill, which covers nothing more nor less than these estimates. If that
Appropriation Bill is brought in framed on the estimates, how can the question arise. It
cannot possibly arise, and I do not think we need waste our words in discussing it. The
question is so unsubstantial, I say it with respect, and of so remote a character, that I
40 think we had better leave the matter as one of ordinary common sense.
Sir GEORGE TURNER: Question, question!
Question-To insert at the end of subsection 4: "And no law appropriating any part of the
public revenue shall have anything but such appropriation for this object"-put and
negatived.
[start page 608]
Sub-section 4 as read agreed to.

END QUOTE
And
5 QUOTE
Clause 54.-It shall not be lawful for the States Assembly or the House of
Representatives to pass any vote, resolution, or law for the appropriation of any part
of the public revenue, or of the produce of any tax or impost, to any purpose which
has not been first recommended to that House by message of the Governor-General in
10 the Session in which the vote, resolution, or law is proposed.
Mr. REID: I think we should make it quite clear if it is really to be provided that Money
Bills, Bills appropriating revenue, or the produce of any tax or impost, are to be introduced
in the Senate.
Mr. BARTON: Perhaps my hon. friend will allow me to explain this clause. This was
15 inserted in consequence of the carriage of an amendment in the Constitutional Committee,
as you will no doubt remember, sir. Instead of the clause relating to Bills appropriating
public money, it was altered so as to refer to Bills having for their main object the
appropriation of public money. The result was that, as a different class of Bills would be
introduced into the Senate, it was thought necessary that a message must also be addressed
20 to the Senate. It is desirable that these words should be retained; otherwise it would be
possible for the Senate, or any members of the Senate, to initiate Bills dealing in a very
large measure with the financial policy of the Government, notwithstanding that they might
deal first with matters of policy, and incidentally only with matters of appropriation. It
would be possible for them to deal with them without any message, and to my mind it is
25 necessary that there should be a conservation of the powers of the Executive in this matter,
and therefore it should rest with the Executive alone to bring down a message. For that
reason I am quite sure hon. members will agree that this provision should be retained.
Mr. KINGSTON: Would it not be well to alter this section to make it correspond with
section 52 in its altered form Clause 52 we have extended to apply to the appropriation
30 of public money from whatever source derived, including loan funds. I think that a
similar extension should be made in the provisions of section 54, so as to harmonise the
two. As one section has been extended I suggest that the other should be extended.
Mr. ISAACS: I would draw hon. members' attention to that and one or two other things
in connection with this clause. The insertion of the word "moneys" has occurred since we
35 have been sitting in this Committee. I would [start page 612] like to call attention to the
necessity of making the language uniform throughout these sections. In clause 52
undoubtedly it will be public revenue or moneys, but it does not add the expression "or of
the produce of any tax or impost." While that is being done I would also draw attention to
clause 79. The expression there is "one consolidated revenue fund." Now that seems to be
40 the term which is most in consonance with our colonial Constitutions, and Mr. Barton
might consider the advisability of having one uniform expression which would comprehend
the necessary term in all these clauses. I would also draw attention to the position of the
word "law" in the second line of clause 54. That should be "proposed law," or something of
that kind. I observe that the Drafting Committee have to a large extent taken advantage of
45 the criticism of Mr. Bourinot in his pamphlet commenting on the inexactness in the
language of the Bill of 1891 in certain clauses. I refer particularly to the next clause, in
which we find the expression-"proposed law passed." Mr. Bourinot made some keen
observations on that, and the Drafting Committee have to some extent followed that, but
they have not in all their conclusions, and this clause is one case in which they have not. He
has pointed out the obvious fact that one House does not pass a law, and that it is not
law until it has received the Royal assent, and to speak of it as a law until it has is
wrong.
5 Mr. BARTON: The best place to put it in would be to say:
To pass any proposed vote, resolution, or law. That would be almost the best English.
Sir GEORGE TURNER: No.
Mr. BARTON: The word "proposed" would be the governing word.
Mr. ISAACS: They can pass a vote, and they can pass a resolution, but a House cannot
10 pass a law by itself. That same observation would apply to various other sections-in both
portions of clause 55. In the last line of the first sub-section the word "law" is wrong.
Mr. BARTON: I do not think it is wrong there, because "the law," means "the proposed
law."
Mr. ISAACS: It has been altered in other portions.
15 Mr. BARTON: I do not think we need trouble about legal verbiage. "The law" means the
law which has been mentioned before.
Mr. ISAACS: The alteration has been made in some sections; but there are some
portions in which it has not been made.
Mr. BROWN: Perhaps one of the observations of Mr. Isaacs might be met by using the
20 word "consider" instead of the word "pass." That part of the clause would then read:
It shall not be lawful for the Senate or the House of Representatives to consider any vote,
resolution, or law, for the appropriation of any part of the public revenue.
Mr. ISAACS: That would not meet it.

Mr. BROWN: I make the suggestion because, if I recollect rightly, it is provided in the
25 Standing Orders of the Tasmanian Parliament. No one can there propose a vote for a sum of
money or for expenditure of any kind unless it has been first recommended by the
Governor. They not only cannot pass, but they cannot consider it.
Mr. BARTON: I am not quite sure, upon such consideration as I have been able to give
it, whether that would be an improvement. I think there would be many cases in which the
30 proposed vote, or resolution, or law would thus fail of accomplishment, simply because of
the want of a message, which message might be sent at a late stage of the consideration of a
question. I understand that in the House of Commons the ordinary practice is for a
Minister to state that the resolution or vote is with Her Majesty's consent, but that the
ordinary message from the Crown can be brought down at any time before the
35 question "that the Bill do now pass" is put.
[start page 613]
Mr. KINGSTON: The same thing obtains here.
Mr. HIGGINS: In Victoria, too.

Mr. BARTON: In New South Wales the practice is more strict; but I have always
thought that the strictness of that practice is not really a compliance with our Constitution
Act.
Sir JOSEPH ABBOTT: In New South Wales the Act says "to originate."
5 Mr. BARTON: That is quite true; I had forgotten that. I have always thought that the
practice in New South Wales has been a perplexing and hampering one. I think it is very
much better to make the law read as it is, that the passage shall not occur until there
has been a message. There are many circumstances under which a message might not be
obtained by a Government, although they might find it necessary in an emergency to
10 propose a vote or resolution. So long as the Queen's assent is given to that proposed
procedure by message before the final act is taken of carrying it into law, the
prerogative of the Crown is sufficiently guarded. And if we try to apply restrictions of
this kind, so as to hamper the very origination of matters, we are extending the application
of the prerogative of the Crown, instead of really exercising the popular right, and then
15 applying that prerogative to the effectuation of the popular right.
Mr. REID: You will have to knockout one word in this clause, or else the same trouble
will exist.
Mr. BARTON: I will give an instance. It does happen, and it has happened within my
Parliamentary experience several times, that a point has been taken in Committee of the
20 whole during the passage of a Bill, where it has been discovered before anybody bad
thought much about it that an expenditure was involved. Under our practice, where we have
the word "originate" instead of the word "pass," the Bill has been ruled out of order, the
Order of the Day discharged, and the Bill thrown under the table Under the words we have
here such a contingency could not occur, because until the very passage of the Bill it would
25 be within the competence of the Ministry of the day to bring down a message which would
authorise it.
Mr. REID: The clause says:
Which has not been first recommended.

You will have to leave out one word there.
30 Mr. BARTON: I have that word clearly in my mind, but the word "first' relates to
the word "pass." You cannot pass a thing which has not been first recommended; that
is first recommended before you pass it.
Mr. SYMON: Precisely.
Mr. BARTON: With regard to a vote or resolution, it would be necessary to have a

35 message before you pass such vote or resolution; with regard to a Bill, you must have
a message before you pass the Bill. This clause gives greater liberty to Parliament
than the restrictive application proposed, and I am therefore entirely in favor of
retaining the words of the clause. Mr. Isaacs has raised a question with reference to
"proposed law."
40 Mr. ISAACS: I do not like the words "proposed laws," because it has a technical
meaning in other parts of the bill. The word "Bill" ought to be there.

Mr. BARTON: I do not propose to alter without very good reason the phraseology of
this Constitution Bill to which we are accustomed. A Bill is a proposed law until it
becomes an Act.
Mr. ISAACS: It is not a law until both Houses have passed it and it has been
5 assented to by the Queen.
Mr. BARTON: The hon. member has raised the question in line 38, that the word
"Proposed" should be put before the word "law." I am not very curious about that, and I
have no particular objection to it. The words used in the beginning of the section are "a
proposed law." The word "the," if I must be very particular, which occurs in the fifth [start
10 page 614] line of clause 55 is generally known as the "definite article," and specifies the
thing related to. Therefore, "the law" means "the proposed law." But I have not the least
objection to it, if my hon. friend thinks there may be the least technical difficulty about it, if
he will move in the direction indicated.
Mr. ISAACS: We have not come to that yet.

15 Mr. BARTON: I have not the least objection to the insertion of the word proposed
"before" law."
Mr. ISAACS: We want this Bill to pass in a form that we shall not have any objection to
it.
Mr. BARTON: To meet my hon. friend's view, I would like to insert the word
20 "proposed" before "law" in the second line of the clause,
Mr. ISAACS: That is better than "law."
Mr. BARTON: I think the point is really unsubstantial, but I am perfectly content to put
in the word "proposed" before "vote" or "law" and I leave it to some honorable member to
move one or the other.
25 Sir WILLIAM ZEAL: It seems to me this difficulty would be met if the words, "or law"
were struck out and the word "or" placed before "resolution." I move:
That the words "or law" be struck out.
Mr. SYMON: I would ask the hon. member Mr. Barton whether it is really worth
while to alter it. We know perfectly well what "law" means. You must interpret the
30 words by the context, and if you read the whole section there is no doubt that it
applies to a "proposed law," a "Bill," or anything which has for its object the
appropriation of public money-
Mr. BARTON: That is to say the thing is inchoate until a message is obtained.
Mr. SYMON: Exactly. There can be no misapprehension of the meaning. It does not
35 mean a law after it has become a completed Act-after the assent of Her Majesty-it is
something short of that.
Mr. ISAACS: It is quite immaterial to me what words are used, so long as we understand
them, but I do like to see words referring to the same things consistently employed. We
have heard a great deal even from Mr. Symon of the necessity of preserving a
40 distinction between the expression "law" and "proposed law." Here we are using the
word "law" when it is understood that it is to be a proposed law.

Mr. REID: Will any human being have any difficulty with it to the end of the
world?
Mr. BARTON: My friend is right to this extent, that he says it is not a "law" till
there has been a message, and it has received the assent of the Governor.
5 Mr. ISAACS: Well, what objection to put it in? I move:
To insert the word "proposed" before "law" in the second line of the clause.
The CHAIRMAN: I would point out that Sir William Zeal has moved a prior
amendment.
Mr. BARTON: I will ask Sir William Zeal to withdraw his amendment to make room for
10 a prior amendment by Mr. Isaacs.
Sir WILLIAM ZEAL: I agree.
Leave given.
Mr. Isaacs' amendment agreed to.
Mr. KINGSTON: I ask the Committee to consider the propriety of altering the
15 phraseology of section 53 to correspond with the phraesology of section 52, which we
made to apply to all public moneys, but here we have limited it to revenue or tax or
impost.
Mr. BARTON: I do not see that there is any serious necessity for making the
amendment.
20 Mr. KINGSTON: Will the Chairman kindly inform me the alteration made in section
52?
The CHAIRMAN: The words "or moneys" was inserted after "revenue."
[start page 615]

Mr. BARTON: I beg the hon. member's pardon. I thought he was referring to another
25 clause altogether. I quite agree with him that it is essential to bring the two things into
conformity with one another. I move:
To add the words "I or moneys" after "revenue" in the third line of the clause.
Sir JOHN DOWNER: I do not think it is necessary. I do not see that there is any
necessity for a message in relation to loan money. I ask the House whether they wish to
30 extend the ministerial authority of the Senate more than is necessary to preserve the
legitimate prerogative of the Crown. I venture to submit that it does not.
Mr. REID: I was going to suggest that it would be very inconvenient to have different
sets of things in the two Houses with regard to these messages. As to the procedure of the
35 Senate perhaps it would not be contrary to this provision if a message were introduced
before the Act left that Chamber. Under this language, if the message came down after
the first resolution had been passed the whole measure would be ruled out of order, because
it is provided that in the case of any vote or resolution, &c., it shall not be lawful for the
House of Representatives to pass any vote or resolution which has not been first
recommended to that House. Under these words I remember the Speaker of the
Assembly of New South Wales ruling a Bill out of order for the reason that the
message had not been presented to the Assembly before the stage of going into
Committee was reached. What does "first" mean? If it means "afterwards," then it is all
5 right, and there need be no trouble about it.
Mr. BARTON: I am not going to make a speech about it. It seems to me whether you
retain "first" or take it out it does not matter much. It seems to me to be just the same thing,
because it appears to be quite clear that a message must be there before anything final is
done.
10 Mr. KINGSTON: We have got some words there that appear to me to be unnecessary.
They may raise a doubt. The words I refer to are:
Or of the produce of any tax or impost.
They are not wanted. They do not occur in any previous clause, and when we use
such large expressions as "public revenue," or "public moneys," we catch all that it is
15 desired to catch, I think. It would make the clause clearer if we struck these words
out, but I am not going to move if Mr. Barton will not.
Mr. BARTON: I am a little chary about this sort of thing, and I hope it is not in a
conservative spirit. We have in all Constitution Acts the provision relating to the
appropriation of the revenue or of the produce of any tax or impost. There is an
20 unfortunate misprint in the New South Wales Act, which provides for the appropriation of:
Any part of the revenue or funds or of any tax or impost.
But we know what it means, and it has been corrected in practice. If Mr. Kingston will
convince me that the alteration will be safer, then I shall be prepared to accept it.
Mr. HIGGINS: I think to avoid any ambiguity in clause 52 we should not have these
25 words in clause 54, as they cover the same thing exactly. I mean to say they have no object,
and we refer to the same thing exactly in clause 52. In clause 52 we
have only got:
Public revenue or moneys,

and we should have:
30 Public revenue or moneys
here. Obviously they cover the same object.
Mr. SYMON: That amendment has been carried.
Mr. HIGGINS: My point is this-that in addition to the words:

Or moneys
35 you are keeping in the words:
Or of the produce of any tax or impost.
They ought to be out, and I will move:

To strike out "or of the produce of any tax or impost."
[start page 616]
Mr. O'CONNOR: There is a necessary amendment in the fifth line. The words used are:
5 To that House.
As it stands it would mean the House of Representatives only, but the section intends to
apply to both Houses. I move:
To strike out "That," with a view of inserting "The."

Mr. ISAACS: "Such House" would distinguish it.
10 Amendment agreed to.

END QUOTE
.
15 QUOTE.
The Right Hon. G.H. REID: Yes, in his general financial scheme. That is the principle
on which our constitutions rest, and I have to say that that is a principle which the people of
Australia-I mean the people of the different colonies would be the last to give up in the
management of their own colonial affairs. I think that that is a fair representation of the
20 case. I have, I admit, to come away from that state of things, and to admit that in framing a
federal constitution we must deviate. We cannot frame the same sort of constitution as
we would frame if it were a constitution for a unified Australia. I have never denied
that. But the practical point is: can we deviate so far as we are asked to do today by the
proposition now before the Convention? We must again look at the facts, and these facts
25 are only facts today. In the course of time, instead of New South Wales and Victoria
possessing the largest population, it may be that two colonies now possessing a small
population will be infinitely ahead in population of those two colonies. This is to be a
federation for all time; consequently, although we today seem to be fighting the battle of
New South Wales and Victoria, we are really fighting the battle of the people of the other
30 colonies in days to come.
END QUOTE
.
As I stated from onset, this is a “limited” interim response as I need to go through thousands of
pages to deal more extensively with other content of the 29 February 2008 correspondence.
35 .
I noticed that the 29-1-2008 correspondence stated, “I respectfully defer to your” would this to be
read as “I respectfully refer to your”, as the word “defer” would unlikely have the right meaning
in this sentence.
END QUOTE
40 .
QUOTE
WITHOUT PREJUDICE
Australian Taxation Office 26-02-2008
C/o James O’Halloran, Deputy Commissioner of Taxation
45 Fax 1800 060 063
. Re; your correspondence TPALS/PAR
Ref number 5843700
.
5 COMPLAINT
.
Sir/Madam,
.
Further to my 20-2-2008 correspondence I add the following;
10 The ATO provided a cost estimate as to the collection of GST, but has not people trained in
taxation matters who are now conducting taxation matters and the collection of the GST.
Meaning that, so to say, strict compliance with legislative provisions has gone down the gutter.
A purchaser/client is advised to pay a certain GST and has no way to avail himself/herself as to if
the GST charged is as such applicable.
15 .
The following are quotations of a correspondence where despite my immediate objections there
was an overcharge of about $150.00 on GST. After this correspondence this was refunded, still it
underlines that untrained persons are charging taxation and people who are not alert, and even if
they are alert do not persist, then end up paying GST for which no GST is applicable. The
20 question is how often this is occurring and the customer/client is not aware of this?
The fact that this could occur in the first place underlines that the administration of the GOODS
AND SERVICES TAX is disorganised and people are charged GST for which none is
applicable.
.
25 QUOTE
WITHOUT PREJUDICE
Mr Brett Archer M.B.B.S. F.R.A.C.S. 24-3-2005
Southbank Plastic Surgery Centre Suite 10
City road, Southbank, Victoria 3006
30 Tel; 9686 9344 Fax; 9686 1420
Sir,
My wife Olga Hlavka-Schorel requested me to contact you, which I do hereby.
In September 2004, my wife attended to your surgery regarding facial problems, for which
35 she understood, and advised me, you would charge $3,000.00 plus GST. Later, I discovered
that in fact it was $3,300.00 inclusive GST, but as the GST component was not 10%
therefore, she was, as I view it, overcharged. I did make this known at the time of payment
but found to be told that it was differently charged. However, I for one do believe that what
my wife advised me of , just having come from your office, at the time, likely was more
40 correct. In particular where she made known that you had quoted “$3,000.00”, and then
seemingly added “and obviously GST” making it $3,300.00. I do not believe my wife
would make up such version having just left your office then, neither would it make sense
for her to do so.
What this is about is, in my view, “principles” of honesty!
45 END QUOTE
And
END QUOTE
Had you advised my wife the cost of assistance would be $3,300.00 inclusive GST then I
for one would have had no problem with this, however, where the cost, as I understood it,
50 was quoted $3,000.00 plus $300.00 GST, and later it is found it was less GST, but then a
different charge was applied (despite my protest made at the time of payment) to still
arrive at the total $3,300.00, then, I for one question the honesty in this, and obviously then
wondered what else you stated would be reliable! I do not want my wife being trapped and
so sucked into paying for other additional treatment to try to get the result she was
understanding would have been provided in the first place by you! My wife is very
disillusioned, and that is an issue to me! She is entitled to a better result, without further
cost to her! I ask, Why then the need for a referral, where thew work to be done is, so to
5 say, corrective treatment, free of charge, as she understand it to be? With the next
appointment due 21 April 2005, surely matters need to be clarified?

END QUOTE
10 .
As referred to in my 20-2-2008 correspondence;
.
QUOTE
15 Dr. COCKBURN (South Australia).-Had the honorable member who moved the
insertion of this clause proposed to make it an exclusive power of the Commonwealth, then
I think that the arguments used by the honorable member (Mr. Trenwith) would have
applied; but I anticipate that the has no such intention, nor has any member of the
Convention any intention to make this an exclusive power, but merely to make it one of the
20 concurrent powers of the Commonwealth, under which the Commonwealth can act, at the
same time not forbidding any individual state from acting.
Mr. HIGGINS.-Would the honorable member give two pensions to the same
person?
Dr. COCKBURN.-Certainly not.
25 END QUOTE
.
Yet, we find that there are people who are receiving two different pensions, so to say, to top up
another pension.
Clearly this is unconstitutional. As much as a person cannot get a State and a Federal pension
30 then the ongoing pension arrangements with other countries clearly is a unconstitutional conduct
where then the person receiving a pension from overseas also is provided with a federal pension.
However, this problem could easily be overcome if the overseas pension is paid to the
Commonwealth of Australia to compensate its pension payment to the person concerned. In this
manner the person who ends up getting the pension gets only one pension and the monies paid to
35 the Federal Government is to compensate the Commonwealth for the paying out of the pension
to that person.
A person who were to hold that the pension payment of his/her country of birth were to be
significantly more then that of the Commonwealth of Australia could rely upon that overseas
pension and forgo the Australian pension albeit by this would also forgo any pension benefits,
40 such as cheaper travel by public transport, etc.
.
The current system of having a minister of the Crown upon retirement having a huge pension
while also being employed for the crown also seems to be a constitutional conflict, as the framers
of the Constitution did debate this at length. You cannot have a former Minister having a pension
45 pay-out and then be deemed to be impartial in representing the Government as an Ambassador,
etc.
.
The Commonwealth of Australia (the federal executive) as an employer is entitled to make
whatever arrangements it desires for its employees, but the Commonwealth executive cannot

provide for tax exemptions and neither has the Federal parliament any constitutional powers to
do so in regard of Commonwealth employees, being it soldiers, ambassadors, etc.
.
QUOTE
Mr. ISAACS (Victoria).-What I am going to say may be a little out of order, but I would
10 seem to me to deserve attention. First, it is provided that all taxation shall be uniform
15 would not prevent a graduated tax of any kind? A tax is said to be uniform that falls with
direct taxation. I am extremely afraid, that if we are not very careful, we shall get into a
20 not absolutely uniform.
END QUOTE.
Again;
QUOTE
25 might be held to be unconstitutional, or, in other words, illegal, if it were not
absolutely uniform.
END QUOTE
.
Taxation thresholds that apply to all persons are obviously constitutionally valid, irrespective if
30 this exclude certain persons from paying tax because e they are below a certain threshold. Like
the about $28,000.00 threshold now applicable. However, it cannot be that a person on
$40,000.00 yearly income is to pay tax while a person having a combined yearly income of
$500,000.00 or more can be without paying tax because they happen to be former Government
Ministers, former AWB chairman, etc.
35 Hence, on that basis also taxation cannot be charged against anyone who were to have less then
their income if they are excused of paying taxes.
The ATO therefore better address these issues also.
.
Parliament of Australia Senate Committee GST Main Report.htm
40 QUOTE
Cost of ATO Administration
15.24 The Commissioner of Taxation, Mr Michael Carmody, appeared before the
Committee on 26 March 1999. When he was questioned regarding the likely administration
costs for the GST, the following exchange took place:
45 Senator Gibson - In the Age on 11 February your Mr Rick Matthews is quoted with regard
to compliance costs. He said that the tax office expects it will cost 0.88 per cent of revenue,
about $300 million, to collect the GST. This compares with 1.47 per cent in New Zealand
and 2.55 per cent in Canada. Would you care to expand on why you believe our costs will
be lower than in New Zealand and Canada, and are those estimates correct?
50 Mr Carmody - You need to be careful with revenue, because rates vary and change the
amount of revenue. I point out that, in preparing for our administration, we have obviously
had the benefit of implementations around the world. We are doing it at a time when
electronic service delivery is much more viable. We are aiming to be the best at
administering that. Inevitably, for example, in the UK, which has a very complex set of
exemptions - not only zero rating but variations - their costs are significantly higher
5 because of that. Whether that is a universal rule, it comes down to that question of what
level of compliance and intrusiveness do you accept. [7]
END QUOTE
.
QUOTE
10 [7] Evidence: Committee Hansard, 26 March 1999, p.2237.
END QUOTE
.
QUOTE
Legal Services
15 15.35 The Law Council of Australia raised some of the more important aspects of the
goods and services tax that impact on the provision of legal services. The Council submit
that consideration should be given to the GST being recognised explicitly as an addition to
fees – rather than treated as a deduction from fees rendered. The major costs involved in the
provision of legal services are labour costs. Although the GST does not have direct
20 implications for PAYE salaries and wages, these costs will be affected in the legal
profession if the full cost of GST collected on legal fees cannot be passed on to purchases
of legal services. [9]
15.36 The GST is more easily viewed as applicable in the manufacturing sector where
value is added as goods pass through progressive stages of manufacture. In the professional
25 services sector (which includes lawyers, accountants and consultants), value is created
almost entirely by owners and employees using their knowledge, skills and experience in
the “production process”. Given the low level of non-labour input, the amount of GST that
most law firms will be able to offset from input tax credits will be very limited.
15.37 In the Council's view it is therefore necessary for legal firms to try to pass on most, if
30 not all, of the cost of the GST in the form of increased fees. However, there are a number of
factors that will limit the capacity of law firms to pass on the impact of the GST to
purchasers of legal services. These relate to fixed fee structure and fixed price contracts.
Legal practitioners undertake work for legal aid commissions, courts and other clients
where fees are fixed by regulation, determination and agreement. Unless governments,
35 courts and tribunals can be persuaded to accept charging of GST on top of fixed fee
formulas, legal practitioners will be disadvantaged by having to effectively bear the cost of
the tax from their own incomes.
Where fees are regulated by governments, courts and tribunals, specific action will be
necessary to increase fees to ensure that legal practitioners do not carry the burden of the
40 GST and that the incidence of the tax is passed on to the user. [10]
15.38 The Council also noted that unless the GST collected on legal services can be fully
passed through in increased fees, the tax will effectively reduce the incomes of owners and
staff of law firms. In this respect, the GST will amount to an additional income tax.
15.39 Some law firms rely for a significant amount of work on fixed price contracts with
45 certain “threshold” limits. For example, government contracts in NSW have a threshold of
$50,000 before public advertisement is required. Unless purchasers are prepared to increase
base contract prices, law firms will be disadvantaged as a result of :
 Reduced returns – having to pay the GST which was not previously payable
 Additional work to win tenders in a more competitive environment if thresholds are
50 not increased.

15.40 The Council recommends that government departments and agencies will need to
examine and increase contract thresholds to reflect the impact of the GST on the cost of
professional services, or specify the threshold exclusive of GST.
15.41 The Council is also concerned that the ACCC and other price surveillance authorities
5 may not be comfortable with the price of goods and services increasing by a full 10 per cent
on top of current prices – due to their lack of understanding of the cost structure of legal
(and other) professional service practices. It recommends that consideration should be
given to explicitly recognising the GST as an addition to the price of services rather than a
deduction from it.
10 15.42 Freehill Hollingdale & Page noted an instance whereby an offer was made by a third
party purchaser, but is only able to be accepted by the vendor during the period 1 January
2002 to 30 September 2002. The terms of the offer for sale of the property were agreed at
the time of the offer and no variation is possible without the express consent of the offeror.
In particular, the offer price is fixed and does not include any taxes which may be payable.
15 In the event that Freehill's client does not accept the offer during the agreed period, the
client is bound to enter into a long-term lease of the property with the offeror, the terms of
which have already been agreed and which are particularly unfavourable to the client. That
is, there is a deliberate commercial bias towards Freehill's client accepting the offer to sell.
15.43 Freehill submits that the Transition Bill will not apply in these circumstances as there
20 is only an offer, rather than a written contract, in existence prior to 1 July 2000. Therefore,
in accordance with the Main Bill, if the offer is accepted and the sale of the property takes
place, the vendor ( client) will be required to remit GST of one eleventh of the
consideration received, ie in the order of $9 million.
15.44 Freehill notes that this is a result that was not intended by the parties at the time they
25 entered the arrangement. GST was not publicly contemplated by the Government at that
time. As the Draft GST legislation currently stands, the client would not be able to pass the
GST liability on to the purchaser, thereby resulting in a reduced sales proceeds to the client
of almost $9 million.
15.45 Freehill submits that greater flexibility is needed in the transitional provisions for
30 GST to remove unintended consequences such as those outlined above, and request the
Committee to revisit the transitional provisions for GST and give serious consideration to
recommending amendments to these provisions.
Senator Peter Cook
Chairman
35 END QUOTE
.
Again;
QUOTE
Senator Gibson - In the Age on 11 February your Mr Rick Matthews is quoted with regard
40 to compliance costs. He said that the tax office expects it will cost 0.88 per cent of revenue,
about $300 million, to collect the GST.
END QUOTE
.
One now has to ask if the untrained defacto tax collectors were part of the estimate or not? Did
45 the Commissioner of Taxation deliberately conceal from the Parliament the real cost if the ATO
itself had to pursue GST, keep records of every person forced to pay GST and any system that
would allow the ATO to track back each and every GST payment made, etc?
.
I for one do not accept that anyone can represent the Federal Government. If they are not
50 employed as tax collectors by the Commonwealth then they have no taxation collecting powers
and neither are subjected to confidentiality provisions and as such it is highly inappropriate that

then those people are used for de facto tax collection. Being it the banks or others, they have no
business to be de facto tax collectors.
.
It is totally absurd that some how some “alien” could be a de facto tax collector.
5 Excuse me “alien” de facto tax collectors?
.
Well, any business proprietor who is an “alien” somehow can now be working as a de facto tax
collector even so not entitled to be employed ads a real tax collector.
.
10 An “alien” who would not have any legal rights as to franchise, etc, can however have the right
to dictate Australians what tax they shall pay, regardless this “alien” hasn’t got a clue how the
taxation legislation applies!
As shown above with Mr Brett Archer M.B.B.S. F.R.A.C.S. his staff member overcharged on
GST, despite of my protest then to do so, and as such I was forced to pursue this in writing.
15 .
To me this is a total absurdity where a complains as to an overcharge is not at all involving the
ATO, a authority that deals specifically with taxation matters, but I had to unsuccessfully deal
with an untrained de facto taxation collector and then finding no resolve had to pursue the
matter further.
20 .
What a total absurdity we have where the Commissioner of taxation has not got a clue
what taxes I have paid and if they were in fact actually collected by the ATO.
After all, where I was charged GST over GST exempt services and in the end the overpayment
will not show up in the taxation records because the $3000.00 charge will have a breakdown as
25 to what was to be charged on GST. Hence, in the end the business owner (in this case Mr Brett
Archer M.B.B.S. F.R.A.C.S.) has an extra earning not taxable as it is received GST but not
payable to the ATO.
.
Now it seems to me that before the ATO seeks to make an issue as to what taxes I paid or didn’t
30 pay it better get a hold on itself and organise how it enforces taxation legislation that is
constitutionally permissible and it refunds all monies paid on taxes that were unlawfully
collected from me.
It is not my concern if some business owner acted unlawfully in charging or overcharging GST,
as where the ATO enlist untrained de facto tax collectors then it is accountable for this.
35 .
Lets have a look at the meaning of indirect v direct;
QUOTE
Ruddock v Vadarlis (includes corrigendum dated 20 September
2001) [2001] FCA 1329 (18 September 2001)
40 Last Updated: 21 September 2001
FEDERAL COURT OF AUSTRALIA

Ruddock v Vadarlis [2001] FCA 1329
THE HONOURABLE PHILIP RUDDOCK MP, MINISTER FOR IMMIGRATION

45 AND MULTICULTURAL AFFAIRS, THE COMMONWEALTH OF AUSTRALIA
AND WILLIAM JOHN FARMER v ERIC VADARLIS, HUMAN RIGHTS AND
EQUAL OPPORTUNITY COMMISSION AND AMNESTY INTERNATIONAL
LIMITED
V 1007 OF 21001
END QUOTE
.
QUOTE
In Laker Airways Ltd v Department of Trade [1977] 1 QB 643, the House of Lords held
5 that there was no residual prerogative right to withdraw the designation of an airline,
Skytrain, under an international airline treaty between England and the United States (the
Bermuda Agreement), where the airline had been duly licensed under a domestic statute
regulating civil aviation. On the question of construing the scope of the domestic statute,
Roskill LJ said (at 722):
10 "I do not think that the Attorney-General's argument that the prerogative
power and the power under municipal law can march side by side, each
operating in its own field, is right. The two powers are inextricably
interwoven. Where a right to fly is granted by the Authority under the statute
by the grant of an air transport licence which has not been lawfully revoked
15 and cannot be lawfully revoked in the manner thus far contemplated by the
Secretary of State, I do not see why we should hold that Parliament in 1971
must be taken to have intended that a prerogative power to achieve what is
in effect the same result as lawful revocation would achieve, should have
survived the passing of the statute unfettered so as to enable the Crown to
20 achieve by what I have called the back door that which cannot lawfully be
achieve by entry through the front. I think Parliament must be taken to have
intended to fetter the prerogative of the Crown in this relevant respect."
Lord Denning MR said (at 706-707):

"Seeing then that ... statutory means were available for stopping Skytrain if
25 there was a proper case for it, the question is whether the Secretary of State
can stop it by other means. Can he do it by withdrawing the designation?
Can he do indirectly what he cannot do directly? Can he displace the statute
by invoking a prerogative? If he could do this, it would mean that, by a side
wind, Laker Airways Ltd would be deprived of the protection which the
30 statute affords them ... [T]he Secretary of State was mistaken in thinking
that he could do it."
See also Lawton LJ (at 728) and Mocatta J at first instance (at 678) to the
same effect.
36 In Hunkin v Siebert (1934) 51 CLR 538, the Commonwealth suspended an employee
35 without pay, prior to dismissing him. It was conceded that the employee was not suspended
under or in accordance with the disciplinary procedures (including suspension) provided for
under the Public Service Act 1916 (Cth). The Commonwealth argued that, as another
section of the Public Service Act reserved the Crown's common law power to dismiss a
public servant, and the right of suspension was an incident of that power, there existed
40 outside the statute, alternative common law mode of dealing with the employee. The Court
ruled that the express power of suspension "necessarily regulates and controls any
prerogative power of the Crown to suspend" (Starke J at 544). Rich, Dixon and McTiernan
JJ said (at 542) that "such provisions must be interpreted as restricting the common law
right of the Crown to exercise a similar power by other means and in other circumstances."
45 37 These cases show that, where the prerogative is relied on as an alternative source of
power to action under a statute, the prerogative will be held to be displaced when the statute
covers the subject matter: See further John Goldring "The Impact of Statutes on the Royal
Prerogative; Australasian Attitudes as to the Rule in Attorney-General v De Keyser's Royal
Hotel Ltd" (1974) 48 Australian Law Journal 434.
END QUOTE
.
5 Therefore, if the ATO cannot collect GST as to exempt goods and services then it neither can
somehow circumvent this by using “aliens” or others as de facto tax collectors in an indirect
manner what cannot be permitted in a direct manner. And this is besides the fact that the
GOODS AND SERVICES TAX is unconstitutional.
.
10 The ATO and not some de facto tax collector ultimately is accountable that any (valid) taxation
legislation is appropriately administered. Yet, I find that not even confidentiality is provided for
where even “aliens” can know how much taxation I am paying at certain times, and they even
can fail to pay it on to the ATO and the ATO would not know the better of it.
.
15 As a taxpayers I am entitled to ask for accountability and as set out above and so in previous
correspondence there appears to no accountability and by your own admission there appear to be
no records by the ATO as to what GST I have been paying over all those years.
As such, the ATO would neither know how much GST I was forced to pay to business
actually was paid into the ATO and how much was fraudulently charged but withheld from
20 the ATO!
.
Fancy this, that an “alien” who might be unlawfully working in the Commonwealth of Australia
and not subjected to any secrecy provisions nevertheless can have access to my personal details
how much tax I have to pay in certain instances, being it GST or otherwise, and this by operating
25 as some de facto tax collector.
.
Rest assure that my correspondences are being published on the Internet and elsewhere!
Awaiting your response Mr. G. H. Schorel-Hlavka

30 END QUOTE
.
QUOTE
WITHOUT PREJUDICE
35 C/o James O’Halloran, Deputy Commissioner of Taxation
Fax 1800 060 063
Re; your correspondence 19-10-2007 TPALS/PAR
Ref number 5843700 TDMS 5935297
40 .
COMPLAINT
.
Sir,
.
45 thank you for your 26 March 2008 correspondence, and I wish to point out certain matters.
.
As to bogus emails, albeit they show the official logo of the Australian Taxation Office I only
reproduced them (with hesitation) so as to be able to forward them to you while the originals
received are held on the internet. I did so that in case the ATO does desire to have the original
50 forwarded by email to it, as to perhaps trace the sender of the emails which could be possible by
the electronic fingerprints associated with emails. Indeed, in the past I did so myself warning
companies not to use my email address where I discovered scam emails having been forwarded
using my email address, and I have noticed that those businesses then stopped using my email
address. Therefore, and in particular concerned the harm that can flow to so manny7 who may
assume that it is an email from the ATO I hold the ATO has a DUTY OPF CARE to ensure that
any such scheme operation is acted against forthwith. Because the ATO website failed to show
5 any email reporting address to notify about scams, something I view is a considerable failure by
the ATO, it means that a scam can be going on and on before finally the ATO may become
aware of it. Hence I view that the ATO on its website should in a prominent manner provide for
anyone to click onto a reporting email address and/or to be provided with a “REPORT
SCAM/SPAM” email address as to enable the ATO to be immediately being notified and it then
10 can without delay trace the senders to ensure appropriate action is taken..
.
I thank you for your courtesy to warn me about the dangers of the scam email, which I kept in
mind.
.
15 I noted in your correspondence that you stated;
QUOTE 26-3-2008 CORRESPONDENCE
You have again pointed out that the GST legislation is, in your view unconstitutional and therefore ultra vires.
You also assert that the legislation is “ultra vires from the time it was enacted once I made my constitutional
objections known”.
20
Chief Justice Latham’s comments on the effect of invalid statutes, in South Australia v Commonwealth
[1942] HCA 14; (1942) 65 CLR 373, are worth quoting in full. He said (at CLR p 408);
“common expressions, such as: “The courts have declared a statute invalid,” sometimes lead to
misunderstanding. A pretended law made in excess of power is not and never has been a law at all.
25 Anybody in the country is entitled to disregard it. Naturally he feel safer if he has a decision of a court
in his favour-but such a decision is not an element which produces invalidity in any law. The law is not
valid until a court pronounces against it-and thereafter invalid. If it is beyond power it is invalid ab
initio.”
30 You are entitled to maintain your view that the GST legislation is invalid ab initio and your view is entitled to
respect. The Tax Office, however, maintains the opposite view. Further more, as an organ of the
Administration we are especially not in the position such that we are “entitled to disregard” the GST
legislation, particularly as to this time we do not have any court decision to vindicate such a position.
35 I must therefore advise you that the Tax Office will not be changing its view in response to your
representations. Furthermore, as have previously told you, we are not able to refund to you any of the GST
that has been included in the price of products and services paid for by you.
It would therefore seem that the only course of action available to you would be to take legal action, but it
40 would be entirely inappropriate for me to provide you with specific advice as to how you might proceed.
However I should point out to you that if you were to embark on legal action on the basis that the GST
legislation is not constitutionally valid, you should expect that your claims would be vigorously resisted.
END QUOTE 26-3-2008 CORRESPONDENCE
45 .
It must be clear that only the ATO as the organ of administration can administer taxation
legislation against a citizen. The moment this is abandoned to give the rights over to individuals,
such as shop keepers who may or may not be aliens, then the Federal Government has aborted its
own constitutional powers. As the High Court of Australia is on record that where a Municipal
50 Council failed to comply with its own by-laws in regard of an application for a building permit it
by this abandoned its rights and the by-law no longer could be enforced against the applicant.
The applicant was entitled having made an application to have the application appropriately
determined, regardless what the final decision would be, however where the council refused to
deal with the application altogether then it no longer can enforce this by-law it abandoned itself.
55 .

The ATO therefore cannot enforce GST legislation where it now has admitted that it does not
control the GST as it cannot refund GST charged in excess or otherwise. Clearly this is an
admission by the ATO it does not at all appropriately administrate the GST, which is a taxation
for which only the Commonwealth purportedly has legislative powers.
5 .
If the ATO administer GST legislation against anyone, being it businesses or otherwise, then it
must ensure it has appropriate records to enable a refund to be made where duly so claimed.
.
The statement of Latham CJ was also referred to in HCA 27 of 1999 Wakim to which I referred
10 to previously, as well as the Authority quoted again below;
.
QUOTE
federal laws in the USA; http://familyguardian.tax-
15 tactics.com/Subjects/LawAndGovt/ChallJurisdiction/AuthoritiesArticle/AuthOnJurisdiction.htm
37 Am Jur 2d at section 8 states, in part: "Fraud vitiates every transaction and all contracts. Indeed, the
principle is often stated, in broad and sweeping language, that fraud destroys the validity of everything into
which it enters, and that it vitiates the most solemn contracts, documents, and even judgments."
And
20 The general misconception is that any statute passed by legislators bearing the appearance of law constitutes
the law of the land. The U.S. Constitution is the supreme law of the land, and any statute, to be valid, must be
in agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail.
This is succinctly stated as follows:
The general rule is that an unconstitutional statute, though having the for m and name of law, is in
25 reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from
the time of its enactment, and not merely from the date of the decision so branding it. An
unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a
statute leaves the question that it purports to settle just as it would be had the statute not been enacted.
Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no
30 rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies
no acts performed under it. . .
A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede
any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is
superseded thereby.
35 No one is bound to obey an unconstitutional law and no courts are bound to enforce it.
END QUOTE
.
40 Where then I have opposed the application of the GST legislation upon constitutional grounds,
despite the O’Meara decision you referred to, and you have acknowledged my objection having
been noted then the ATO as an organ of the Administration can no longer in any way allow the
GST legislation to be applied, not just against my person but against any other person (natural or
otherwise).
45 .
For all purposes and intent the GST legislation is WITHOUT LEGAL FORCE and remains to be
so. The ATO can therefore not pursue that somehow I have to litigate, as I do not need to do such
a thing. As a citizen I made my objection known and that is the end of the matter in that regard,
as the GST legislation for all purposes and intent is ULTRA VIRES and will remain to be so
50 unless and until, if ever at all, a court could pronounce a decision to overrule my objection.
.
Lets give a simplified example.
If a police officer comes to your residence and wants to enter your property and you refuses to
allow this police officer to do so then unless the police officer first obtains a WARRANT to
55 allow him to enter your property his conduct to nevertheless persist in entering your property
despite your objection will be unlawful. It is not that somehow you first have to go to Court to
get an order against the police officer not to trespass, as the moment you make your objection
known then that is sufficient.
I have likewise indicated to the ATO not to trespass upon my rights with causing me to be
charged GST , and so at times also in additional wrong manner, and as such the ATO cannot
5 argue that merely because it is an organ of the Administration it can nevertheless trespass upon
my rights and charge directly and/or indirectly GST unless I obtain some court order as it is not
for me to do so. I made my objections known and the ATO seeking to trespass upon my rights
therefore has the onus to prove having such a right, failing to do so it must refund all
unconstitutionally collected monies.
10 .
QUOTE
A pretended law made in excess of power is not and never has been a law at all. Anybody
in the country is entitled to disregard it.
END QUOTE
15 .
The statement of Latham CJ would make no sense at all if His Honour had intended that the
“victim” of the unlawful conduct first were to obtain a court order in its favour. As His Honour
made clear, as so have numerous other Authorities, the law pretended law is no law at all!
Hence, the ATO has no legislation to apply as it has no powers to place itself above the
20 constitution! It cannot administer a non-existing law which is a purported law only!
.
Therefore, where the legislation is ab initio from onset then the ATO having in some form or
another allowed individuals/businesses to administer the pretended GST legislation then must be
deemed accountable to refund all and any GST I was charged. It is not relevant to me if the ATO
25 did or didn’t keep records as that is an internal matter that is beyond my control. The onus is
upon the ATO to prove what amount of GST it directly/indirectly had caused me to pay over the
years and failing it having any records in that regard, it has admitted not to have records, then the
onus is upon the ATO to provide me with such offer of settlement that I may deem acceptable.
.
30 It is neither relevant to me if any GST I was charged by any individual/business was or was not
passed on to the ATO as after all it was the ATO who allowed this kind of absurd system to
operate and as such must be held accountable for its own total mismanagement in that regard.
.
Where legislation is invalid “ab initio” then it does not and never can somehow still allow for an
35 organ of the Administration to nevertheless persist in enforcement of this purported legislation!
Indeed to persist in doing so may make those persisting in this conduct liable to various criminal
offences!
In my view, neither the ATO (Australian Taxation Office) and/or any other organ of the
Administration should have to litigate in extensive manner about the validity or otherwise of
40 legislation, rather that there should be a special office, such as the OFFICE OF THE
GUARDIAN, a constitutional council, that advises the Government, the People, the parliament
and the Courts, as to what is constitutionally permissible and what it not. Only then the ATO and
for this any other organ of Administration could resort to advice irrespective of what political
party is in power, and I have no hesitation to state unlikely would the purported GST ever then
45 have come into legislation!
On the one hand, the ATO pursues individuals/businesses to keep records and to make
declarations as to taxation paid, etc, while on the other hand the ATO itself has no proper records
to verify this at all. One would have taken that the ATO at the very least has reliable records it
can delve into to check if certain taxes or purported taxes were received by it, however, it is clear
50 that the ATO despite receiving billions in dollars of purported GST (taxes) has absolutely no
proper records as to ultimately who paid them. Yet, when I go to some businesses I am provided
with a statement stating how much GST was paid by me while other businesses do not disclose
this at all. Meaning that the failure of appropriate recording by the ATO and having this also
enforced by individuals/businesses, many millions of dollars individuals/businesses are
collecting as to purported GST never makes it way to the ATO itself and so neither to
Consolidated Revenue. Clearly the onus rest with the ATO to have ensured that there is a proper
5 record keeping, and where the Senate Committee specifically request for details as to cost of
administration of the (purported) GST legislation then the cost factor should have included all
cost. As such the ATO may have deceived the Senate Committee if it didn’t include all relevant
direct and/or indirect cost! It also means that the ATO cannot now complain about the additional
cost that may eventuate from keeping appropriate records as after all that is a problem the ATO
10 ought to have addressed when requested for answers during the Senate Committee inquiry.
More over, the ATO unlikely also will have precise records of any other taxes it may raise, such
as debit taxes of bank account. Meaning that the administration of the ATO is perhaps anything
but administration but some gobblygook kind of conduct of “I am alright” conduct.
.
15 QUOTE
Furthermore, as have previously told you, we are not able to refund to you any of the GST
that has been included in the price of products and services paid for by you.
END QUOTE
.
20 The wording “we are not able to refund” may perhaps be better stated as to “we are not willing to
refund”, this as the ATO is bound to refund any moneys it unconstitutionally collected. The
Framers of the Constitution made this clear.
.
Now lets see, there was this newspaper article on 7-4-2008 that the ATO is pursuing criminals
25 for a 75 million dollar tax bill as a way to combat crime, at least that was the gist of the article.
.
As my past correspondence indicated the Framers of the Constitution made clear that legislation
may be valid for one purpose but not for another purpose. If therefore the ATO is using taxation
provisions to stop criminal gangs operating and/or to conduct business then its purposes is
30 beyond its powers as it is to administrate taxation laws (that are constitutionally valid) and not to
go after alleged gangsters to get them being prevented from operating. The ATO principle
concern is to collect taxes from whatever source, regardless if they are from legal or illegal
business practices. It is for this also that the aim is to keep taxation records confidential so that
those persons who commit crimes still make appropriate taxation payments and not hide this for
35 fear that they be reported then about their crimes to the police.
For argument sake if I were to be a crime boss I would need the making of a financial return to
be lodged with the ATO like a hole in the head, as the ATO rather then being concerned with
collecting taxes would be using it for ulterior purposes. It doesn’t matter if the parliament did
authorise it or not, what is relevant is that the ATO must make up its mind and if its conduct is to
40 pursue crime rather then to collect taxes then it must face the consequences that
individuals/businesses who otherwise would declare their income may be prevented from doing
so appropriately because the ATO is abusing/misusing the information for non taxation purposes.
Considering also that the ATO has already admitted it has no proper records as to GST monies
collected as to by whom it was actually paid, the ATO may undermine its own enforcement
45 capacity as to collecting taxes. Its refusal to refund unconstitutionally collected GST underlines
that the ATO has therefore placed itself above the law.
.
If I were a lawyer acting for criminals I would have, so to say, a field day with this in court!
Admittedly the Courts tend to make orders against most individuals/businesses when ever the
50 ATO litigate but that is perhaps more likely due to a habit then proper administration of justice.
The John Murray Abbott case was a clear example where the High Court of Australia ruled
against Mr Abbott, only then for Mr. Abbott to be provided with a refund because after all it was
found he never owned any debts to the Commonwealth. So much for the credibility of the High
Court of Australia where it make a ruling of a debt existing where none actually ever existed and
so admitted by the Crown afterwards!
.
5 The ATO ought to revise its mentality that it can do as it like and get away with it because
ultimately there is going to be trouble. After all, as with my decision to refuse to vote in federal
elections, despite being a candidate, resulted that after a 5-year legal battle I succeeded on all
constitutional and other legal grounds UNCHALLENGED because while the High Court of
Australia in the past may have made certain rulings it never did consider the details I presented in
10 my successful cases! Sure, the Australian Electoral Commission still persist in fining people for
“FAILING TO VOTE” regardless that it was totally defeated by me on 19 July 2006 but that is
the habit of organs of the Administration that when a judgment is against them they tend far to
often to circumvent or ignore this ruling whereas if it is in their favour you bet your bottom
dollar they will, so to say, haunt anyone into their grave.
15 .
In view of the refusal of the ATO to refuse to refund all unconstitutionally collected GST to me I
hold I am entitled to have the applicable interest rates applied for any monies refused to be
refunded, as to compensate for the loss of value of the monies in view of inflation, etc and you
can take notice of this also.
20 .
The ATO by having administrated the purported GST legislation in the manner it did by this has
trespassed upon my rights to allocate my monies as I desired because it allowed
individuals/businesses to charge me whatever GST comp0onent they desired without any due
and proper record keeping how much I was charged and how much of this monies was actually
25 paid to the ATO to end up in Consolidated Revenue. There is no system where the ATO can
collect purported taxes but cannot refund any invalidly/unlawful collected taxes. The power to
collect must include the powers to refund! Hence, I do not accept that the ATO cannot refund
any unconstitutionally collected GST to me!
.
30 QUOTE
However I should point out to you that if you were to embark on legal action on the basis that the GST
legislation is not constitutionally valid, you should expect that your claims would be vigorously resisted.
END QUOTE
.
35 I do not need to institute legal proceedings as the onus is upon the ATO to refund monies to me
and for as long as it fails to do so appropriate interest and other charges are applicable.
The ATO cannot expect me to provide tax returns where it is unable to provide itself information
that are relevant to it. Taxes paid, being it (unconstitutional) GST, bank fees, etc, all are taxes
and I am entitled to take it that in due administration of taxation the ATO of anyone would keep
40 appropriate taxation records. Unconstitutional GST monies are not “taxes” per se because they
were not collected as valid taxation and therefore makes it even more complicated to me to
differentiate between taxes and purported taxes where the ATO insist it being taxes regardless it
being well aware and having acknowledged as to that I hold the GST legislation is ULTRA
VIRES ab initio.
45 .
Over the decades many a barrister made clear I would be the losing party but then for them to
discover that the courts time and again ruled in my favour. Like on 19 July 2006. The problem
with lawyers is, so to say, that often they are unable to think outside the square. It is their fall
down in litigation when they are confronted with a person who like myself, so to say, has done
50 his homework. For example I read today a 2003 “Crime and Candidacy” statement of a Dr. Ian
Holland of the Federal Governments information service, Politics and Public Administration
Group, about Section 44 of the Constitution, and while the statement “appeared” to be well

researched and set out, in reality I would give it a 2 out of 10, as the entire argument was in my
view constitutionally floored, in various ways.
My (48-year old) step-daughter made known in the past that when she obtained her various law
degrees she was limited to how to approach legal issues as certain concepts were dictated (at the
5 law faculty) and one simply could not act outside of it. She made known that when I provided
her with certain set out about certain litigation, it resulted precisely in litigation as I had set out.
Perhaps you may seek to consider matter from my point of view and then seek to understand
what I am pursuing and you may perhaps then realise that as like the AEC matters can escalate
and what will be ultimately the harm flowing from it when a court yet again were to make a
10 ruling in my favour? All I seek is a refund of monies unconstitutionally directly/indirectly
claimed from me and surely this ought to be deemed a reasonable request that should be
responded upon positively?
.
15 END QUOTE
QUOTE
From: "G. H. SCHOREL-HLAVKA" <schorel-hlavka@schorel-hlavka.com>
To: "csgroup" <csgroup@iprimus.com.au>
20 CC: inspector_rikati@yahoo.com.au, aleequeensland@hotmail.com
Date: Wed, 11 Jul 2007 15:23:14 +0000 Subject: Re: Is the GST cast in stone?
As a "CONSTITUTIONALIST" I for one do not accept the validity of the GST.

Anyone who can check the Constitution may discover Section 123 requires a State
25 referendum to approve a State to handover legislative powers to the Commonwealth
by reference of powers. the states giving up certain taxing powers in return of the GST
was unconstitutional.
Why not check out my blog
http://au.360.yahoo.com/profile-ijpxwMQ4dbXm0BMADq1lv8AYHknTV_QH and my
30 website http://www.schorel-hlavka.com for further information?
such as the unconstitutional SHOCK & AWE against the Aboriginals?
Gerrit (Gary)
END QUOTE
.
QUOTE
Sub-section 2.
Mr. GLYNN: I would again draw the attention of the Committee to what, I submit, is a
difference between "laws" and "Acts." This word "law" is more abstract and may be
40 applicable to a single section in an Act, and if that is so it is very material whether we leave
the word "law," because the single section may deal only with the imposition of taxation,
but the restriction on the power of amendment may be applicable to other sections in the
same Act which do not deal with taxation only. I merely mention the point because I
should like it cleared up by hon. members.
45 Mr. BARTON: Do I understand the hon. member to refer to the use of the words
"proposed laws"? If so, "proposed laws," I may say, is an expression used in other parts in
regard to "Bills," while "laws" covers the expression "Acts." If the hon. member will refer
to the Bill he will find that the words "proposed laws" relate to Bills. With regard to
"Bills," the provisions of the sections will be left to be carried out by the House, that is, by
50 the President or Speaker. So far as the expression "laws" or "Acts" is concerned, that
deals with the law when it is passed, and such an expression to my mind clearly means
that even after that which is a Bill has become law. if it deals with anything more than
the imposition of taxation, it will be unconstitutional, and the Federal High Court can
decide that it is unconstitutional and void; so when an Act affecting to deal with more
than taxation, and yet is a Tax Bill, happens to be carried through both Houses and
assented to in contravention of this provision, that would be an unconstitutional and
5 therefore a void Act. I think that that is the point upon which my hon. friend wished for
information.
Mr. GLYNN: What I was pointing out was that it may be suggested that the word "law"
might mean a section or a whole Act. If it be contended that it means a section it might be
quite competent under this clause 53 to point to other sections in one Bill, others not
10 dealing with taxation only, but dealing with other and general matters. I raise the point
because it seems to my mind that the sub-section opens the way to a difficulty in the way
of limiting the power of the Senate through sending up mixed Bills such as one dealing
with appropriations and general matters.
Mr. BARTON: Of course in one sense every clause in an Act is a law, because it is a
15 distinct enactment; and if the hon. member will refer to the Statute Book in reference to old
Acts he will find each clause beginning with "and be it further enacted," and every clause is
therefore an enactment, and in that case it is a law. In this case, however, the meaning is
clear. It is this: that the Bill, afterwards becoming a law imposing [start page 576] taxation,
shall deal with the imposition of taxation only; that means, of course, shall contain such
20 provisions as are necessary for carrying the taxation into effect. You cannot pass a taxation
law by simply enacting that there shall be laid on certain property, or on certain subjects of
importation, a duty. You will have to pass into law other enactments to carry that into
effect. These are clauses dealing with taxation only, because they are the necessary
machinery clauses for carrying the object of the Bill into effect. To that extent a law having
25 been a Bill which dealt with taxation only, so long as it has clauses dealing with that
subject only, would all be constitutional under this section. That is to say, where there were
clauses in the Bill which did not themselves impose the tax, but provided for what was
necessary or incidental to the carrying into effect of the tax law, they would be proper parts
of the Bill, and therefore could not be ruled to be unconstitutional as being outside its
30 scope.
Mr. KINGSTON: I do not know whether I quite understand the effect of these sections.
Do I understand Mr. Barton rightly as saying that the effect of it will be, if we pass the
clause in this shape, that if the law should be assented to by the two Houses, and receive
also the Queen's assent. and if it deals with the imposition of taxation and some other
35 matters, that that law would be unconstitutional, and liable to be set aside by the High
Court? If that is so I think we are going a great deal too far. I think these provisions are
chiefly intended for the regulation of business between the two Houses, and the
maintenance of the rights of each. If an infringement of these provisions, however
concurred in, takes place, and notwithstanding the infringement in question, both Houses
40 assent to the proposed measure, yet it is in afterwards to be held invalid. I am inclined to
think it is too serious a consequence, and I ask Mr. Barton to say precisely what is the
intention of the Drafting Committee on the subject. I ask him also to consider the point
whether it would not be sufficient to leave it as a matter between the two Houses without
going to the extent of passing the Bill in such a shape that any relaxation of any of these
45 provisions, however unimportant, and concurred in by both Chambers, would invalidate an
Act of Parliament.
Mr. BARTON: My own opinion is distinctly that in the form in which this and the
preceding sub-section, and probably the fourth sub-section, stand, they involve that
protection which must be given under a Federal Commonwealth by leaving to the supreme
arbiter of the Commonwealth-that is to say, to the High Court-the determination whether
substantial infractions of constitutional law have taken place. To put it in another way: If
the hon. member will compare this with the 52nd clause, that the hon. member will see
deals with "proposed laws," and not with "enacted laws." "Laws" means "enacted
5 laws." "Proposed" laws are to originate in the House of Representatives. It is not
intended, as of course he sees from the form of the section, that the High Court of the
Commonwealth should have under review such a question as whether a Bill originated in
one House or another if passed into law. That is a question for the Houses to settle between
themselves. But the question whether a law on the face of it exceeds the constitutional
10 power as dealing with more than the imposition of taxation, dealing with more than
the laying on of a tax and the machinery necessary for it, or whether it deals with two
subjects of taxation at once, unless it is a Customs law, that question, and also the
question whether the annual Appropriation Act deals with more than the ordinary
annual services of the year, seem to me to be deeply rooted in the Constitution, and
15 depend not merely upon the questions of relations of the Houses inter se, but on much
larger considerations. For that reason, the word used has been "laws," so that the Federal
High Court may deal with them, and if they [start page 577] infringe those principles,
declare them unconstitutional. But where the words "Proposed laws" have been used, those
sections deal with the position which would arise where, as between the two Houses, a
20 House as a matter of procedure originated, or otherwise dealt with, or amended a bill which
by this Constitution it is desired that that House should not originate or amend. These are
questions that must be settled between the Houses, because no court in the world has ever
yet dealt with the question whether, as between the two Houses in their own relations, one
or other House has exceeded its powers in originating or amending Bills. But it is a
25 safeguard-an integral part of a Federal Constitution-that, if we once say that a law shall not
deal with more than one subject of taxation-unless it is a Customs law-or that it shall in no
way deal with anything more than the imposition of taxation and the necessary machinery,
then that is a question which relates to the whole basic principle of Federation whether that
law shall be deemed to be constitutional, even if passed.
30 Mr. ISAACS: Would you consider the repeal of an Act to be imposing taxation?
Mr. BARTON: The repeal of a Taxation Act could not be for the imposition of taxation.
Mr. ISAACS: I should think it would not be.
Mr. BARTON: Unless it was accompanied with alternative provisions for taxation.
Sir GEORGE TURNER: Hear, hear.
35 Mr. ISAACS: Suppose you repeal one land tax and put on another, are you clear that
that is not dealing with the imposition of taxation?
Mr. BARTON: If you place in any subsequent Act of Parliament provisions which are
irreconcilably at variance with the provisions of a prior Taxation Act, there will be an
implied repeal. If this be so, then it is no violation of the provisions of the Constitution if
40 you turn an implied repeal into an express repeal. If there is a replacement of prior taxation
by a later taxation Act, the mere addition of a repealing clause would certainly not be an
infringement of constitutional provisions. What can be done by implication can always be
done by express statement. This set of sections has for its object the same object as had
those of 1891. A law is unconstitutional if it deals, as a Tax Bill, with more than one
45 subject of taxation unless it is a Customs Bill, or with any question except the imposition
of taxation and the necessary machinery therefor. In either of these two cases, at any rate,
the Supreme Court could declare that law to be unconstitutional. That is the protection
which a federal system gives, and, although it may be said to be placing the Supreme Court
above the Parliament, it is nothing of the kind. It results necessarily from the appointment
of an arbiter, who should decide what the Constitution is.
Mr. REID: The remarks of my hon. friend Mr. Barton raise very serious considerations.
5 Let us suppose that a policy of taxation-we will say a Customs tariff-is passed by both
Houses. Let us suppose that both Houses are emphatically in favor of it, and there is some
provision in that long Bill-one short clause-which may raise a point of law; then any person
affected by that taxation in some insignificant way might upset the whole tariff and throw
an entire community into the greatest state of uncertainty. We do not wish anything of that
10 kind. I look upon these provisions, not as inserted for the protection of the taxpayers, but as
provisions inserted to define the relations between the two Houses, and it is a matter
entirely between the two Houses. If, for instance, the Senate by an oversight or by
agreement chooses to pass a Bill which is not in strict accordance with these provisions that
ought to be a matter entirely between the two Houses. It is not likely that the Senate would
15 allow anything of the kind to happen, and I [start page 578] have a very strong opinion that
if a Bill contained say a land tax and also the machinery necessary for collecting that tax it
would be a clear violation of this provision.
Mr. BARTON: Oh, no.
Mr. REID: I venture to say so, because I remember the way in which these taxes are
20 imposed in the mother-country and in most of the colonies. The tax is put in one short Bill
and the machinery clauses in another Bill.
Mr. BARTON: Not because of provisions of this sort.
Mr. REID: No, because they do not exist, of course, but for another good reason,
namely, that whilst under our Constitutions the Upper House is not allowed freedom in
25 modifying taxes it should be allowed the most perfect freedom in dealing with the
machinery necessary for collecting those taxes. If the two were put together the Upper
House would be very much embarrassed in exercising a discretion upon the machinery
clauses. I think this is so serious a matter in the light put on it by Mr. Barton that we ought
to copy the term in the margin of the clause. I propose therefore:
30 That in sub-section 2 the words "laws imposing taxation" shall be omitted with a view of
inserting the words "Tax Bills."
I think that would be infinitely better. It would be far better that any Acts of the
Federation should not be open to review in the law courts upon a mere matter of procedure,
because the essence of authority to impose a tax on a subject is the concurrence of the
35 Legislature, and if that concurrence is affixed to the tax it would be an absurdity that on
some technical point the whole law should be upset. We do not wish to appeal to our
higher court on matters of this sort. The more Parliament is self-contained the better, and
the more it is the master of its own powers the better. Viewing these clauses as provisions
to safeguard the other branch of Legislature, and with no reference to the ultimate effect of
40 the laws themselves, I propose the amendment I have submitted. I will follow this
amendment up by proposing a similar amendment in sub-section 3.
The CHAIRMAN then put the amendment.
Mr. REID: In deference to the suggestion, which I think is a proper one, of Mr. Barton-
that we should follow as much as possible the structure of the Bill-I with the leave of the
45 Committee, will alter my amendment by

Putting the word proposed "before "laws"
Leave granted to Mr. Reid to alter his amendment.
Mr. SYMON: There cannot be any doubt that this involves very serious consequences,
and the underlying principle to which we have to get seems to me to be only indicated by
5 my hon. friend Mr. Reid, rather than agreed upon by him. This amendment is not quite
logical, and will not really accomplish his purpose. Undoubtedly it seems to me that clause
53 is intended to regulate the proceedings between the two Houses, to prescribe the basis
upon which the relative power of the Houses in regard to Money Bills is fixed, and the
exercise of their limitation and condition. If that is the governing sense of clause 53 and its
10 various sub-sections, then we do not want an amendment at all. I am not saying that
absolutely or dogmatically, but as indicating the opinion I hold on what Mr. Reid has said,
that the whole purview of clause 53 is to deal with the relations of the two Houses
regarding Money Bills. It was not intended by that section to create conditions which
before a higher court might possibly lead to some Act being declared invalid, whereby
15 endless confusion would arise throughout the Federal States. If that is the construction of
the clause, and its object is ascertained by reading sub-section 1, does that interpretation
govern the whole of the sub-sections, and would that be simply limiting their effect to the
relation between the two Houses? At the same time, if there is the shadow of a doubt [start
page 579] upon that point, I am sure that the Convention will feel that it ought to be set at
20 rest. It would never do to have the whole of the finances of the Federal States as well as
their constituent States disturbed by an interpretation which might, if the law had been
passed and brought into operation, be declared invalid after the lapse of time by some
suitor who objected to pay a two-penny tax. I would point out that by introducing the
words "proposed law," if you do not exactly limit the scope of the whole section you will
25 not prevent that result, because if the High Court will have jurisdiction under secton 2 to
declare an Act invalid which did not comply with that provision it would equally have the
power to declare an Act invalid if a Bill upon which an Act was founded did not comply
with that condition. It occurs to me that if you condemn a tree because the branches and
fruit are bad, the tree is equally bad if the root fails in its strength. So if your law is bad as
30 being in conflict with the Constitution, it must be equally bad if the Bill upon which it is
founded violates the Constitution. If we attach a condition to the introduction of a Bill that
is questionable, and open to debate, we would lay the foundation upon something which
might also be bad. What I suggest, in order to overcome the difficulty, which is obvious to
all, is that we should introduce a general clause providing that non-compliance with any of
35 the conditions imposed in this section with regard to the introduction of Money Bills
should not invalidate them or lead to their being called into question after they have been
assented to by the Governor. It would be comprehensive and safe, and no doubt would
reach a constitutional point that would satisfy everybody.
Mr. HIGGINS: I may say with regard to the point the Premier of New South Wales has
40 referred to, that it is the very point to which I referred yesterday in discussing the matter. I
think it is right that "Bills" should be used so long as we are speaking of that which is not
an Act. It is the proper expression to use when the measure has not been passed by both
Houses. I am not going to go back upon our decision. I understand that the Committee has
resolved that the phrase unheard of hitherto, "proposed laws," is to be adopted. If the
45 phrase is to be adopted, I think there is a danger of private suitors being able to show in the
court on twopenny-halfpenny litigation that the whole of the Act is void. Yesterday it was
suggested by the President that the best course under the circumstances, to avoid all doubt,
was to have a special clause stating that, notwithstanding these provisions, if the Federal
Parliament has once assented to a Bill it is to be regarded as law, even though the exact

terms of the section have not been complied with. During the debate I have put down these
words, which will answer the purpose if put in after sub-section 4.
Notwithstanding anything contained in the foregoing provisions, any proposed law to

which the Federal Parliament has assented shall be deemed to be valid as a law.
5 When I say - the Federal Parliament I am using it strictly with regard to the definition in
clause 1, chapter 1. The Federal Parliament is defined as Her Majesty and the two Houses,
and I think this will answer the purpose. Of course I have drafted this in the haste of
debate, but it seems to answer the purpose to which the President called attention
yesterday, and I will put it as an amendment to clause 4.
10 Mr. ISAACS: There are two classes of matters in this relation that I think we must have
regard to. The first is this: Wherever the Constitution sets forth a condition of the validity
of a law, and that condition is intended to protect the people as against the Acts of the
Parliament, there I think the court should be the ultimate tribunal to decide the
constitutionality or otherwise of the enactment; but wherever it is introduced for the
15 purpose of merely regulating the procedure between the branches of the Legislature, there I
think, after the two Houses agree to any [start page 580] enactment, that no court should
afterwards question it. This section is intended to protect the Senate as against the House of
Representatives, and I think that we should be careful, while affording the fullest protection
to the Senate, that if the Senate saw it was a case in which public interest or public urgency
20 demanded that they should not stick too closely to their privileges, that no individual
should be able by litigation to challenge their conjoint and voluntary act. I do think there is
the strongest danger, and I ventured to draw attention to it yesterday, that the Federal
Treasurer might, after having a Tax Bill passed or an Appropriation Bill, passed by both
Houses willingly and with their eyes open, find himself in this position: that some
25 individual might challenge the Act through a court of law, which would be compelled to
declare it invalid. The Treasurer might have expended the money, or might be desirous of
obtaining money under the authority of the Act, and the position I have indicated is one we
should not drift into. I think that the general modes of expression used by my friends Mr.
Symon and Mr. Higgins are very good, but I think that the form of the proviso, or rather
30 another sub-section, should be:
No law shall be deemed to be invalid by reason only of any non-compliance with or

contravention of this sub-section.
Mr. BARTON: That is what has been suggested to me in conversation with Mr. Reid.
Mr. REID: Any remarks made on this point may be made in better form if I withdraw
35 my amendment and move it in the following form:-
Money Bills shall not be liable to be called in question in respect to any breach of the
provisions of this section after the same have become law.
Mr. WISE: I am glad that the Hon. Premier of New South Wales has moved his
amendment in the form he has now suggested, because it brings us face to face with what, I
40 venture to think, is an important matter, the importance of which hardly appears to have
been recognised, and which it is rather difficult to deal with at this stage. I regard the clause
as drawn, and particularly having regard to the deliberate choice of the word "laws" in
distinction to the words "proposed laws," as a most important constitutional safeguard, and
I doubt very much whether the representatives from the smaller States realise what an
45 important protection is going to be taken from them by the adoption of this amendment.
Stated in two sentences, it comes to this: The Bill as framed provides that although the
ultimate power, whether because it has public opinion behind it or on account of the
adoption of any machinery for meeting deadlocks, shall rest with the House of
Representatives and the people of Australia as a whole, so that the numerical majority of
the people shall ultimately in some way prevail, yet, in order to prevent that numerical
5 majority overriding the views of any particular State, certain methods of coercion with
which we have become familiar in our local Houses-methods of coercion of one House by
the other-shall no longer be employed. One of the methods of coercion would be to include
an obnoxious measure of taxation-obnoxious to the Senate-in a measure extremely popular
and desired by the Senate.
10 Sir GEORGE TURNER: Is not that provided for?
Mr. WISE: No; tacking on to the Appropriation Bill is provided for, but not tacking on
to ordinary Bills. Sub-clause 2 is necessary to give full effect to subclauses 3 and 4.
Mr. BARTON: Two and 3 give as far as possible the right to the Senate in detail, and
sub-clause 4 gives the right for the prevention of tacking.
15 Mr. WISE: I am speaking more to get instruction from the Committee. As I understand
clause 2, it is designed to prevent the tacking on of a tax on any other measure than the
Appropriation Bill. Subclause 4 deals with tacking a tax on to the Appropriation Bill. Sub-
clause 3 says, [start page 581] each tax must be in a separate Bill; subclause 2 shuts up
another method of coercion.
20 Sir JOHN DOWNER: And away goes the Constitution.
Mr. WISE: As Sir John Downer says, away goes the Constitution. These are measures
deliberately designed for the protection of every individual citizen, and every citizen who
votes for the Constitution is entitled to know what are the terms on which he will be liable
to pay taxes. If the tax is imposed illegally there is no reason why the illegality should
25 not be exposed by the Supreme Court of the Commonwealth just like any other illegal
measure. No Government has a right to raise money illegally.
Sir GEORGE TURNER: It might be raised in the belief that the Act was invalid.
Mr. WISE: I admit the risk, but it only becomes great if you attribute gross
stupidity or ignorance to the Government of the colony. I cordially assent to the
30 distinction drawn by the Attorney-General of Victoria between Acts of a political character
which the Supreme Court would never investigate, but this is something more. This is one
of the fundamental conditions which must be observed before any taxation can be
legally imposed. It is no less fundamental than that in the Constitution of the United
States, under which the Supreme Court recently declared a certain tax illegal. It may be
35 inconvenient, but are not the inconveniences greater of having the whole power of taxation
placed in one House, putting it in the power of their members to override the other in any
way they please, without having their action investigated or controlled by any judicial
body? Is that not a greater risk than that of having a little inconvenience by some accidental
omission through not observing the provisions of this clause? If it is really desired there
40 should be no limit whatever upon the power of the House-and no one is a stronger advocate
than I of keeping the control in the House of Representatives-
Mr. REID: Both Houses must concur.
Mr. WISE: No; that would not follow. We have yet to deal with clauses to prevent
deadlocks.

Sir GEORGE TURNER: There are none.
Mr. BARTON: These are clauses to prevent deadlocks, and the best there could be.
Mr. WISE: Certain clauses have been circulated in draft which make certain suggestions
for overcoming deadlocks. But supposing the two Houses have had a difficulty, and that
5 the numerical majority must prevail. Now assume that, in order to overcome this provision,
if the amendment of Mr. Reid is carried, a Taxation Bill has been tacked on, say, to a
Factory Act or some other Act. I am taking an extreme case, and it is only in extreme cases
that this would operate. Supposing it were tacked on to an Act of imperative necessity, like
a Defence Acts it could not be thrown out by any Chamber without menace to the public
10 safety. If a case of that sort were attempted, and the Senate should choose to throw
that measure out, the two Houses could meet, and the House of Representatives, by its
more numerous majority, would carry the day, although there would not be the
shadow of a doubt that the Tax Bill which had been carried in defiance of
Constitution would be illegal. And yet no power on earth would be sufficient to aid
15 the reluctant taxpayer, who would be robbed as surely as if the money were taken out
of his pocket.
Mr. REID: You are assuming a case in which the Government, having ultimately
the appeal to the people, would begin by a breach of the Constitution. That is a big
handicap.
20 Mr. MCMILLAN: If you do not wish to break the Constitution, you will recognise
the right of appeal to the High Court.
Mr. REID: We do not want our taxes bandied about in courts of law.
[start page 582]
Mr. WISE: All this is designed to prevent the use of a weapon with which we are
25 now familiar, the use of the weapon of coercion in times of excitement, where there
may be a large, active, and passionate majority, a majority which, under these
circumstances, we say shall not be allowed to act at once, because we provide that
there shall be certain checks put upon it by the action of the Senate. But in order to
prevent that position being rudely, ruthlessly, and recklessly overborne, it is said that
30 the measure shall go up by itself as a single measure, and not tacked on to anything
else. If we agree, we can go further. Mr. Reid is willing to put that in the Constitution.
If we want to do that, let us do it with our eyes open, and not treat it as a matter of
small importance. It is a matter of very great importance, and the distinction ought to
be observed.
35 Sir JOHN DOWNER: What we are discussing now, and are endeavouring to fritter
away, is what has been called the compromise of 1891, and this represents the whole bone
and sinew of the compromise. The whole effect was this, when it came into the House,
whether the Senate should have the right only to reject a Bill absolutely in globo, or
whether they should veto in detail. We, who fought that, were in turn defeated, but in
40 substance were successful, a majority of them refusing to put in words giving the right of
veto in detail; and this provision, which was carefully drawn and considered, was put into
the Bill for the purpose of giving the Senate the right substantially in another form. Now it
is suggested that this right would in course of time be of little use, that these relative rights
of the two Houses would in course of time be of little authority, unless at the back of it all
45 there is a vindicatory authority, some authority that is to be the guardian of the Constitution
and which will take care that the Constitution is observed, and that is to be the Supreme
Court, therefore the draftsmen used different words-"proposed law" and "laws,"-the one to
mark the stages of a Bill as between the Houses. and the other to mark what it has to be
When in the condition of completion.
Mr. REID: I will say at once that I have no desire to raise an interminable debate on this
5 question of States' rights. I would rather not say another word-it is not worth the
discussion. We might have the debate going on for another two days at this rate. I will not
move my amendment at all.
Amendment withdrawn.
Mr. DEAKIN: I desire to congratulate the hon. member upon the step be has taken, but
10 would now repeat, in a sentence or two, a suggestion which has been discussed favorably
by Bryce and Bourinot, and which appears to me to offer a way out of this difficulty. It
might be acceptable. It is not an amendment to move now, but one which, if thought over
and approved, might be submitted at a later stage. I realise the force of the case put by the
Premier of New South Wales as to the possible dislocation of machinery, the difficulty and
15 loss liable to be occasioned by the discovery that a measure of the kind to which he
referred-a Tax Bill-had been informally passed, and consequently that all that had been
done required afterwards to be undone. That would be a serious catastrophe, and if we
could prevent it, while conserving and protecting State privileges such as the hon. member
Mr. Wise has very properly called attention to, we should be glad to provide against. I
20 would ask, then, is it not possible to provide against this by enabling the representatives of
any State in the Senate, after such a Bill has passed both Houses, to challenge it, and
suspend its operation until the opinion of the Supreme Court can be taken on the matter?
An HON. MEMBER: That would never do.

An HON. MEMBER: It is very simple.
25 [start page 583]
Mr. DEAKIN: The Premier of New South Wales has called attention to an evident risk,
though not a great risk, but certainly a serious one when it occurs, and if it is possible to
provide against it, why not do so. If there were a power in the Constitution by which the
representatives of any State could challenge the coming into force of a measure before it
30 was given effect to, and before a tax was imposed, and the Supreme Court were required to
take into consideration the question of its constitutionality, that would secure the safe-
guard which the less populous States require, while you would not involve any suffering on
the individuals intended to be affected by the legislation.
Sir WILLIAM ZEAL: That would place us in a humiliating position.
35 Mr. KINGSTON: I understand that the position put by Mr. Reid is that-
Mr. REID: If this discussion is going on, I shall not withdraw my amendment. I
withdrew it to stop the debate. But I shall insist on moving the amendment if the talk is to
go on.
Mr. KINGSTON: I hope the hon. member will not withdraw it.
40 Mr. BARTON: The discussion I would point out, Sir, can only be upon the clause.
The CHAIRMAN: There is no amendment before the chair. The Hon. Mr. Reid
intimated that he was going to move an amendment.

Mr. KINGSTON: I hope that the Premier of New South Wales will adhere to the course
that he indicated earlier in the debate that he would pursue. I understood the position put by
the hon. member, Mr. Barton, was that if the clause is passed as at present, under clause 52
non-compliance will not be fatal to the validity of any law, and non-compliance with
5 section 53 will be fatal, and that any law passed under that section will be invalidated by
the High Court of Australia.
Mr. BARTON: I might put it this way. The matter appearing on the face of the Bill-in
respect of these matters which I submit are charters to the States-can be dealt with by the
Court, but matters which are matters of procedure between the two Houses are not to be
10 dealt with by the. Court.
Mr. KINGSTON: I understand my hon. friend puts it this way: Non-compliance with
the section guarding the rights of the House of Representatives will not be fatal, but non-
compliance with section 53, providing for the recognition of the privileges of the Senate,
will be. I object to that most strongly; and as to what has been said about words being used
15 here to emphasise the distinction, I remind hon. members of this-that these words were not
used in the Commonwealth Bill as it left the Sydney Convention in 1891, but the same
words were employed as to the infringement of the rights of the House of Representatives
as were used with regard to the infringement of the rights of the Senate. The words we find
here, "proposed laws," on which the whole distinction is based, are introduced for the first
20 time before this Convention. There was a proposition to strike them out, which I then
supported, and I trust something of the sort will be moved again in order that we may
decide whether or not we are going to draw this distinction-that neither Sir Samuel Griffith,
nor any other member of the Sydney Convention suggested-that, as regards the House of
Representatives, if they infringe the law, so good, but, on the other hand, as regards the
25 senatorial rights, if they are once touched, the aid of the High Court of Australia can be
invoked, and the law declared invalid. I ask members to consider which of the two is the
more important. Look at section 52, declaring in which House laws appropriating revenue,
or imposing burdens on the people should originate. Surely there is no more important
principle in constitutional Government, than a principle of that sort. Yet we are told, or the
30 distinction is now attempted to be drawn, that it can be infringed-that a [start page 584] law
can originate in the Senate in direct defiance of that, and, so long as the House of
Representatives concurs, it passes to the Statute book as a valid measure. Compare a
provision of that sort with the matters in clause 53, matters of pure convenience in regard
to which we are to give powers to the Senate to enable them to veto in detail, by requiring
35 that the laws should deal with one subject only. Sub-section 3 of clause 53 says:-
Compare these two things as matters of importance. Can any hon. member doubt for a
moment which should be placed first in point of importance, clause 53 or 54? Yet hereby
40 the introduction of words which were unknown to the Sydney Convention-"proposed
laws"-in the first part of section 52, as opposed to the word "laws" in clause 54 of the 1891
Bill, it is proposed as regards the rights of the people to say to the House of
Representatives as regards the initiation of Bills for the appropriation of the public revenue,
"You can do what you like with them and no court shall stop you." As regards these other
45 matters, priority of importance is to be given to them, and though the Senate may well wish
to waive them, if they are infringed in the minutest particular the High Court of Australia
may interfere and say, "Your work shall be held as nought, and the Act shall be declared
void." It seems to me such a thing is utterly indefensible, and I trust Mr. Reid will adhere to
the course he originally indicated his intention to take.
Mr. BARTON: As the hon. member who has just sat down has referred so fully to what
I have said, I should like to put myself in the right position. I lay down two principles. The
one is that a question of mere procedure, where rights are given by our Constitutional law,
is to be settled between the Houses themselves, and that there never was a Constitution in
5 the world which gave any judiciary the power to inquire into the manner in which the
Houses settled their procedure in those matters; but where it is a question of the
presentation of a law, when passed, in such a shape, on the face of it, that one House is
deprived of its fundamental rights as a component part of the Constitution, that should be
settled by the arbiter of the Constitution. Was it ever attempted in this world, on a question
10 whether a Bill originated in this House or that, or whether that House amended it or not,
which is a question of fact, to allow a Supreme Court to be the arbiter of its validity? That
has never occurred, and never can. No Court should be allowed to inquire into the manner
in which two Houses adjust relations between themselves. If we give these two Houses the
privileges which, according to the decision of the Committees in 1891, according to the
15 decision of the Convention of 1891, and according to the decision of the Committee now, it
is intended to give-the powers, privileges, and immunities of the House of Commons-they
will stand, as the House of Commons has ever stood, against any encroachment or
infringement by any Court whatever inquiring into its method of regulating its procedure.
Sir EDWARD BRADDON: Hear, hear.
20 Mr. SYMON: It is not within the power of the judiciary to do so.
Mr. BARTON: It is not in the judiciary's power, as given in this Bill. But the question
whether, what appears on the face of a law is within the provisions of the Constitution or
not, is a totally different one, and that question alone the arbiter of the Constitution has a
right to decide. I desire to adhere to the compromise of 1891. I have been endeavoring to
25 do so against some delegates, who, however, will now find me faithful in adhering to it on
their behalf. Where there are matters not matters of procedure-where the effective rights of
a [start page 585] component part of the Constitution are involved-the Constitutional
principle is that the arbiter of the Constitution-must be allowed to protect those rights. You
have not it so in England because the Parliament there is Sovereign, but you have it in the
30 Federal Constitution, because you have a Parliament that is only a part of the Constitution,
and that Constitution must protect those provisions of the Constitution which are
threatened with infringement. I shall resist all amendments in these respects because I
consider the principles, which are altogether principles of justice, ought to protect
Parliament in the exercise of its internal powers, and protect the people as to what is on the
35 face of a law a breach of the Constitution
Mr. ISAACS: Would the hon. member mind looking at clause 54 with regard to that?
Mr. CARRUTHERS: My hon. friend, Mr. Barton, forgets that he has already consented
to a departure from the principle of the 1891 Bill. If he looks at clause 52 he will find we
have amended that clause in the very direction that he objects to amend clause 53. The Bill
40 of 1891 uses the words:
Laws appropriating any part of the public revenue
An amendment has been carried which effects the very purpose which Mr. Barton is
contending against now. So that if there is any strength in the contention of the wisdom of
the 1891 proviso, the hon. member has given his case away. For the sake of consistency, he
45 should either support the proposal now made or else go back and have clause 52 brought
into harmony with clause 53. Mr. Barton speaks of the English Constitution. That is an
unwritten Constitution, and no court of law has, therefore, any statute to guide it in its
interpretation of that Constitution. But here we have a written Constitution. In clause 71 I
see that-
The judicial power shall extend to all matters arising under this Constitution or involving
its interpretation.
5 My hon. friend, Sir John Downer, smiles, but if these words had not this meaning: that the
Federal Judiciary should have the power of construing, I am at a loss to understand what
they mean. It says so, and I take the words in cold type rather than listen to arguments
based on a Constitution which is unwritten. Mr. Wise says that we may nave the case of a
minority overriding a majority, coercing the Senate, and passing laws despite of this
10 regulation. Does not the hon. member know this, and I appeal to this Constitution to
support my argument, that any solitary member, either in the Senate or in the House of
Representatives, can immediately wreck a Bill infringing these provisions by drawing the
attention of the presiding officer to it. It is in the hands of any one representative in either
Chamber at any stage up to the final stage of that Bill to call attention to the infringement
15 of the Constitution, and to have the Bill ruled out of order. I may be told that you may
have a corrupt Speaker or a corrupt President, who will not rule it out of order, but
you are just as likely to have a corrupt Judge. So far as regards this matter, any one
solitary member of a minority-and it would be a very small minority that could not number
one-can, by drawing attention to the infringement of the Constitution, have the Bill ruled
20 out of order. Where can there be the coercion of a minority then, when it will be in the
hands of the minority to protect themselves by this simple appeal to the Chair? In such a
case, I say the Bill will have to pass unanimously, and where it passes unanimously why
leave it to the judiciary to wreck that which is the opinion of both Houses of the
Legislature?
25 Mr. WISE: Why have a judiciary at all?
Mr. CARRUTHERS: If it is the sole argument for a Judiciary that we should have such
a tribunal to wreck laws made with the approval of both Houses of Legislature, then let us
have no judiciary [start page 586] at all. If my hon. friend Mr. Wise wants a judiciary to
wreck the work of the Legislature, I do not think the people of Australia will support him
30 in that contention. This clause was never intended, as far as the people have read it, to give
effect to the arguments of either Mr. Wise or Mr. Barton. I hope that Mr. Reid will stand to
his amendment, and that if he does not move it others will do it. We shall have this point
decided by a test division.
Mr. WISE: I would suggest to Mr. Carruthers that the amendment should be rather in
35 this form: instead of saying that no law passed under this section should be inquired into by
the Supreme Court say:
No law passed by the Federal Parliament shall ever be inquired into by the Supreme
Court.
Mr. REID: The question just put by Mr. Wise shows the very strange position he
40 occupies. He does not seem to draw any distinction between the case he referred to in
America, where the Supreme Court of the United States ruled a Bill out of order on
the grounds that it was a violation of the principle of the Constitution as to a principle
on which taxation should be imposed, and not a mere case of procedure between the
two Houses. It seems to me that too much has been made of this point, which is
45 represented as an attempt to take away from the smaller States their protection. That
is a very good catch cry for, an argument, especially from New South Wales, when a
speaker is hard up for one. There is absolutely nothing whatever in it, as the Hon. Mr.
Carruthers has pointed out, and any member in either House can surely put a simple
question to the Speaker to decide the fate of a Bill that is contrary to the provisions of
the Constitution. My hon. friend Mr. Barton put a view just now which would wreck
any Taxation Bill in the world. He said that by the words "Laws imposing taxation
5 shall deal with the imposition of taxation only" in a Bill you can put any number of
clauses in there which would have nothing to do with the actual imposition of
taxation. If that were so it would mean a rich harvest for the lawyers of the
Federation, and I hold the view with others that our finances might be brought into
serious confusion thereby. Lately some taxation was imposed in a colony and it was
10 done in two ways-by a Machinery Bill and by a Taxation Bill. Under provisions of
that kind you would have the courts of the Federation flooded with applicants for
litigation. We do not want the legislation of the Commonwealth to be degraded to that
level. If we put in the Constitution a safeguard for the Senate that the Bill shall not be
more than is specified here, is the Senate going to be such a decrepit, helpless
15 creature, that, having a constitutional safeguard for its protection, it will be
absolutely too blind to see it? Not only that, but they say that every senator from all
the States will be so absolutely incapable as to give away one of the safeguards of the
rights of the Senate. Unless this Senate that we are about to create is going to be such
a despicable object such arguments as those used by Mr. Wise would have no weight.
20 While Parliament is legislating for the people, and when the two Houses have come to
an agreement that a certain thing should be law we do not want the High Courts to
come into the Parliaments of the country and shipwreck that which both Houses have
deliberately passed. With reference to the bogey raised about the referendum, there
are provisions in this amendment, which dispose of that argument, because in the
25 amendment I proposed to submit Money Bills should be liable to be questioned until
they become law, so that at any time when the referendum is going on, a Bill could be
easily questioned on a point of law in the courts. The absurdity of the contention of
some is shown in the fact that in America in neither of the two Houses would a glaring
violation of the Constitution be called attention to. I say further, if there is so much
30 importance attached to this we must go back and put the clause which [start page
587] safeguards the other House in absolutely the same position. I have no feeling in
this matter except a desire that Acts of Parliament, when they become law, should
have the force of law and should not merely become food for lawyers. That is my only
desire. Anyone who has occupied the position of Treasurer can tell of the loss that
35 might be brought about if, after a policy had been brought into force, perhaps four or
five years afterwards, a point is taken on some innocent formal words of the Bill, and
the judges are compelled to declare that all of the money collected under the Act
during those years had been improperly collected.
Mr. BARTON: Would that justify a sweeping amendment?
40 Mr. REID: My object was such a simple one that I did not apprehend so much
as I was to prevent the possibility of such difficulties, but I see now that there is a great
deal more importance attached to it than I thought. The importance, I think, disappears
when we remember that any member of the House of Representatives, upon calling the
45 attention of the chair to the breach of the provisions, would kill the Bill there, and any one
senator, upon drawing attention to the same clause in the Upper House, could kill the Bill
there too.
Mr. WISE: Have you considered the position in America with regard to the Speaker,
who happens to bear the same name as yourself?

Mr. REID: The Speaker of the House of Representatives in America is really the leader
of a political party sitting in the chair, and surely we are going to draw a distinction
between the Speaker of our House and the partisan officer sitting in the chair there and
pulling the wires for the benefit of his party.
5 Mr. BARTON: Would you let the Constitution rest upon this matter?
Mr. REID: Clearly no Ministry would bring in a Taxation Bill and allow it to be so
amended. In America they move under a different set of circumstances altogether. As I
pointed out, there is a great difference between the procedure as to whether a Bill contains
clauses too many or not, and taxation itself in clear violation of the principle of taxation put
10 in the Constitution. I was pointing out that I look upon this merely as a matter of
procedure.
Mr. WISE: It is not a matter of procedure.
Mr. MCMILLAN: Is not the amendment to be limited to procedure?
Mr. REID: Entirely as between the two Houses, and that is my only desire.
15 Mr. WISE: Would not the defect, if there was a defect, under this sub-section appear on
the face of the Bill?
Mr. REID: If it appeared on the face of the Bill, we have to assume first that the
Government would bring in a Bill which on the face of it was illegal, and that there
would not be one pure soul in the House to call attention to it, and that even the
20 immaculate Senate would not contain an angelic mind that would do its duty to the
Constitution. Heaven help the Constitution if it is to be run on these lines! The Upper
House will not allow its rights to be violated if they are put in the Constitution, and
the object of the amendment is simply to prevent an unfortunate accident, which
would happen over and over again in Acts of Parliament, from rendering an Act after
25 it has received the Royal assent, and which might be, perhaps, the deliberate policy of
the country, accepted by vast majorities in both Houses, invalid. I would not have
proposed this amendment in face of the serious debate it has provoked. I proposed, if
no member of the Convention has a previous amendment:
To insert at the end of sub-section 4: "Money Bills shall not be liable to be called in
30 question in respect to any breach of the provisions of this section after the same have
become law."
[start page 588]
That would allow any exception to be taken to a Money Bill till it has received the Royal
assent, after which no such question shall be raised.
35 Sir GEORGE TURNER: We have devoted considerably over an hour to this

discussion.
Mr. REID: Perhaps Sir George Turner will allow me, and in order to get this matter
tested, I will apply the very same test which was applied to clause 52. I propose:
Before the word "laws," in sub-section 2, to insert the word "proposed."
40 I shall thus challenge the sense of the Convention in exactly the same manner as in the
previous instance.

Sir GEORGE TURNER: We have been discussing this matter for considerably over
an hour, and if we take as long over all questions we shall be here for some weeks, and
it seems the more we discuss it the more confused members will undoubtedly become
in connection with it. I do not propose to add to that confusion to any great extent. I
5 think there is some misapprehension with regard to the defects which might arise
under this subsection. It may be that if the Parliament did not follow out the course
here laid down the Federal Court would have the right to declare the whole law to be
void. Well, that would never do. It would never do after a law had been passed
voluntarily, without any compulsion such as Mr. Wise speaks of, the Parliament fully
10 believing that they were doing everything right, and the Treasurer had acted on it,
and collected a large amount of revenue, for him to find, because some small slip had
been made, that the law was absolutely void. At the same time we do not want it to
appear that in making any alteration we desire to, take away from the smaller States
any protection which they may think they have under this. No one desires to give any
15 ground for it, and I do not think any alteration we could make would take away the
protection, because the protection is undoubtedly with the Senate. The only difficulty
which might arise would be that the point in question might be overlooked. Therefore
if we would lay on somebody the duty of certifying before the law passes that it was in
compliance with this section we could give all the protection required.
20 Mr. O'CONNOR: Then you would leave it to the person who certifies to interpret
the law.
Sir GEORGE TURNER: No; when the law has once passed the court should not
have the liberty to interfere, and say on some small question of procedure that the law
should be upset I would leave it to the Senate.
25 Mr. REID: They will take care of themselves.
Sir GEORGE TURNER: Let it be the duty of the President for the time being to certify
that the proposed law was in compliance with this section. It will then be his duty before
putting in such law-
Mr. REID: The Senate could make a Standing Order to meet that.
30 Sir GEORGE TURNER: No; in order to prevent any doubt arising among the
representatives of the smaller colonies that they might be injured, I would suggest to Mr.
Barton to adopt that mode, and make it appear that, while the Court had no right to
interfere with the Act when it was once law, yet before it became law every
opportunity should be taken to see that that section is not infringed. I would leave it to
35 the President of the Senate to certify, either by himself or on a resolution of the Senate, that
the proposed law was in accordance with this section, so that there would be a statutory
duty on him to consider before the law was passed that there was no infringement of it.
Mr. GORDON: It might be passed in one, sitting.

Mr. BARTON: Would you prevent the Governor giving his consent without the
40 certificate?
[start page 589]
Sir GEORGE TURNER: Something like that. I quite agree with the smaller States that
there should be some provision by which they could not be injured, but I feel very loth to
go the full length of giving the court power to interfere with the Bill when it is passed.

Mr. MCMILLAN: Perhaps a bewildered layman might mention what I understand to be
the exact position. I understand if we add the word "proposed" before "laws" it would then
be really a matter of procedure, and that the introduction of the word "proposed" before
"laws" would make it practically a Bill, and that otherwise the question of whether the
5 measure is constitutional could not be dealt with.
Mr. BARTON: It will prevent the High Court from inquiring into it.
Mr. MCMILLAN: According to the amendment proposed, it would prevent any mere
slip of procedure from making invalid an Act which may affect the whole country and its
financial operations, but nothing which we may enact with regard to procedure will
10 prevent any suitor from going to the High Court if the Act is essentially
unconstitutional. That is the way I look at it, and it seems to me that either putting in
"proposed" before "laws," or adding an amendment somewhere or other making it clear
that no mere slip of procedure can invalidate the law, would meet all the difficulties.
Mr. BARTON: This is not proposed to cover mere slips, but everything.
15 Mr. MCMILLAN: I do not think that could be the intention. We are attempting to
legislate for a very limited possibility. You will get disputes so long as there are lawyers
in the world. I do not know whether Federation will do away with lawyers.
Mr. BARTON: Not until merchants will cease to quarrel.
Mr. MCMILLAN: If so it would simplify our arrangements very much. At the same
20 time it does seem that there ought to be something introduced to prevent the law being put
into operation for a mere breach of procedure, if there is such a chance.
Mr. SYMON: There is no chance.
Mr. MCMILLAN: I do not suppose that any ordinary moral layman would do it,
unless he were instructed by a less moral lawyer.
25 Mr. HIGGINS: There seems to have been infused in this debate an amount of spirit, and
I am going to incur the risk of the ordinary peacemaker. There has been no reference to the
common-sense provisions which are put into all articles of association with regard to
digressions from the prescribed routine. On the one hand, there is no doubt that there is no
covert design to injure the smaller States and their representatives, by attempting to impose
30 upon them laws which are not in the ordinary course as prescribed. I think the members for
the minor States will accept that assurance. But, on the other band, there is no desire on the
part of the minor States advocates to give the lawyers more work than they can possibly
help. But there is no doubt that these sub-sections 2 and 3 of section 53 are calculated to
lead to questions in the courts which ought to be avoided if possible. Take sub-section 3:
35 Laws imposing taxation, except laws imposing duties Customs on imports, shall deal
and rails. That may be argued not to be a law dealing with one subject. There are questions
which will certainly arise which will be fruitful in litigation unless we take great care.
40 Therefore, I am in thorough accord with the desire of the Premier of New South Wales to
have some clause which will obviate the bringing of these trivial matters into the court, and
under which a great wrong will be done on the ground of some trifling breach of the Act.
What is done in the case of articles of association? There are in articles of association pro-
[start page 590] visions for meetings to be held, for the holding of meetings in a certain
manner, and for a number of directors, and so forth. But there is always a clause for any
accidental omissions; to comply with the articles is not to invalidate the resolutions of the
meeting. I would suggest this should be done here. All we want to provide against is
accident, mere accidental omissions. I would suggest the following:
5 Any accidental failure to comply with the foregoing provisions of this section shall not
invalidate any proposed law to which the Federal Parliament has assented.
Mr. REID: That would make it worse.
Mr. HIGGINS: But I would provide that the failure shall be treated as accidental, in this
way. I would go on to add:
10 The failure shall be treated as accidental if it has not been brought to the attention of the
President of the Senate or of the Speaker of the House of Representatives.
Mr. BARTON: This procedure is to be brought before the court by way of affidavit,
then.
Mr. HIGGINS: It is a simple matter. The mere fact that you define the accident in this
15 form-that is to say, when no one has brought it before the Speaker or President-is quite
sufficient. Even if the word "accidental" were not defined, it is a regular expression used in
articles of companies, and there has never been any question of difficulty raised with
regard to it. It would be very easy to say that it should be treated as accidental unless some
member of either House brings it before the Speaker of the House of Representatives or the
20 President of the Senate. I feel-sure that the experience of companies for many years past is
the best experience we can have for dealing with any irregularity of this sort. I do not want
to move this as an amendment, but if the honorable the Premier of New South Wales would
accept it I would be very glad. It might be better for us to leave it to the Drafting
Committee, with instructions that some form of words to carry out this idea should be
25 adopted. I am not prepared to move anything on the spur of the moment, but I feel sure
something of the kind I have suggested would be the correct way of getting over the
difficulty.
Mr. O'CONNOR: I think it is a misapprehension on this question to say that it is a

matter for lawyers, and not of sufficient importance to be considered worthy of a full
30 discussion. But I think it is a matter of the utmost importance, because it is one of the
guarantees in this Constitution to the people represented in the Senate. I wish to put it as
shortly as possible from that point of view. The Senate, by section 53, have certain
limitations upon their powers. They are not allowed to deal with an Appropriation
Bill appropriating the necessary supplies for the ordinary annual services of the year;
35 they are not allowed to amend a Tax Bill; and they are not allowed to amend any
Appropriation Bill so as to increase any charges upon the people. That is the
limitation which is put upon the power, not only of the members of the Senate, but it
indirectly affects the rights of the people of the different States they represent,
inasmuch as you have your States represented in the Senate. That is a limitation on the
40 power of the States, and therefore in that limitation not only the members who represent
the States at a particular time, but every member of the States interested has a direct
interest in that portion of the Constitution. Now, in order that that right shall be exercised
only in the strictest possible way you must surround it with some safeguards, and these
safeguards become necessary for this reason, that it is well known where legislation is
45 carried on by two Houses it is a common practice to evade laws of this kind, which are
merely laws of procedure, and it is very easy to evade them. For instance, it is very easy to
evade a law imposing taxation by inserting some provision in the Bill which it will be very
difficult for the [start page 591] Senate to reject, and which would put the Senate in a very
awkward position in the public eye if it did reject it, but which at the same time make it
necessary if they pass it to pass an obnoxious system of taxation. A proposal of that kind is
not unknown. Take the next sub-section-
5 Laws imposing taxation, except laws imposing duties customs on imports, shall deal with
one subject of taxation only.
It is not an uncommon thing to introduce a Tax Bill containing a tax on land which
might or might not be objectionable, or a tax on income which might or might not be
objectionable.
10 Mr. REID: Where is there a law against it?
Mr. O'CONNOR: I will deal with that by-and-by. I point out that in the absence of a
law, and the very absence of a sanction which will enforce the law, provisions for getting
over the procedure of the House are very common. The next provision is:
The expenditure for services other than the ordinary annual services of the Government
15 shall not be authorised by the same law as that which appropriates the supplies for the
ordinary annual services, but shall be authorised by a separate law or laws.
That is meant to be directed to the provision of tacking which is very often met with in the
process between the two Houses. Tacking to the Appropriation Bill is not a device that
is unknown in these colonies.
20 Mr. REID: Is it forbidden in this section?
Mr. GLYNN: It is not prevented by this section.
Mr. O'CONNOR: It is not excepted in the way which I will point out now, by making
an infringement of this Act a penalty, that is to say, a penalty that the Act which infringes
25 provisions, or if you make it so obligatory that if they are not complied with the Act
shall be void. I point out, in regard to these three different matters, that these are ways in
which proposals of this kind between the two Houses are affected. It is said that is only
between the two Houses. In any question between two Houses you will always be brought
face to face with the condition of things which exists between the two Houses now. A law
30 which may be introduced in violation of one of these sub-sections maybe believed to be a
violation by the Senate, and thrown out on that ground, and be sent back. It may be sent up
again by the House of Representatives, and so by that way you have a question which,
instead of being settled, becomes a matter of contest between the two Houses. Another
matter of difference between the two Houses we know. It is where one House happens to
35 take an unpopular view of a question-a view which for the time being is not the view of the
majority of the people. We know it is easy to bring the pressure of the majority of public
opinion on one House for the purpose of obtaining a violation of the law. This is not
intended to be a protection to the House or the Representatives of the House, but to the
States represented in the House; that no matters of tactics between the Houses, or no
40 playing off of public opinion by one House against another, shall ever take away the
protection embedded in the Constitution for the States. I have heard of the argument of the
inconvenience of laws being upset on account of some invalidity being discovered-some
trifling invalidity, perhaps. I say you must submit to that inconvenience if you wish to enter
a Federal Constitution. The very principle of the Federal Constitution is this: that the
45 Constitution is above both Houses of Parliament. That is the difference between it and

our Houses of Parliament now. The Federal Parliament must be above both Houses of
Parliament, and they must conform to it, because it is in the charter under which
union takes place, and the guarantee of rights under which union takes place; and,
unless you have some authority for them to interpret [start page 592] that, what
5 guarantee have you for preserving their rights at all. It is very necessary to insert this
provision in the Constitution, because if you do not do that then these questions are
questions of procedure between the two Houses in which undue pressure may be brought to
bear at any time on one House or other for the purpose of vetoing a law and doing injustice
to the States represented in that House in the different ways in which the States are
10 represented. As to the inconvenience, there are thirty-two different subjects of legislation
here which may be dealt with by the federal authority, and in regard to any one of these if
an error is made which takes the law outside the authority which is given to the federal
power it is invalid-absolutely void-no matter what inconvenience may follow.
Mr. ISAACS: That is not a rule of procedure; that is jurisdiction.
15 Mr. O'CONNOR: With every respect, that is begging the question to put that as an
argument.
Mr. ISAACS: That touches on State rights.
Mr. O'CONNOR: I admit that. In fact the whole thing is founded on State rights
because if your amendment, using the word "proposed," is carried it is a matter of
20 procedure; but if the word "laws" remains it is not a matter of procedure.
Mr. ISAACS: That is what you have done on clause 62.
Mr. REID: Why did the Drafting Committee alter that from the Bill of 1891?
Mr. O'CONNOR: With all respect to that hon. member, the Drafting Committee did not
alter that. It was altered by the Constitutional Committee, and I think very properly,
25 because the initiation of a Bill is a different thing altogether from any of these questions.
The initiation of a Bill is a matter which does not limit the powers which are given under
section 53 to the States.
Mr ISAACS: Surely the initiation of Money Bills gives much more to the liberties and
rights of the people.
30 Mr. O'CONNOR: That goes really into a legal question. The difficulty of dealing with a
matter of that kind is the manner in which it has to be raised before a court.
Mr. ISAACS: Same principle.
Mr. O'CONNOR: So long as you have a principle that if a law, on the face of it, is
invalid, it is a matter which the Court can decide, the matter of initiation is not a matter of
35 that kind. The principle involved here is exactly the same principle involved in the question
decided in America as to the uniformity of taxation laws. The populations of the States had
a right to insist that no tax which was not uniform should be imposed. And no matter what
the rights of the Senate, for the time being, that was the protection in the Constitution
against any action which might be taken, whether with the consent of the Senate or
40 without. I ask the Committee to adhere to the proposal in its present form, not because it is
a matter of protection to the Senate or the other House, but because it is a matter of
protection to the States that have entered into this union that that limitation which is placed
upon their power of amending a certain class of Bills cannot be infringed or enlarged by

the adoption of any ordinary tactics which may be used under our present Constitution
between the two Houses.
Mr. SYMON: I do not wish to detain the Committee more than a moment or two, but I
feel I ought to set myself right in regard to this proposed amendment. In doing so I wish, as
5 I have already done personally, to express my regret that perhaps it was owing to a
suggestion of mine that Mr. Reid's amendment assumed the shape it did. I accept any
responsibility on that score, but I hope he will forgive me if I am unable to follow it up by
voting for the amendment. I am, in this instance, an illustration of the value of discussions
of this sort, and I desire to express my in- [start page 593] debtedness to Mr. Wise and Mr.
10 Reid for their arguments, which have satisfied me it would be exceedingly unwise and
dangerous for us to introduce this amendment in this clause. I rather come back to my
original view that, substantially at least, the provisions of this section are intended as
provisions of procedure. So far as they are provisions of procedure, Mr. Reid has shown
conclusively that we have absolutely nothing to fear, because the House of Representatives
15 may be relied upon, and the Senate may be relied upon to see that the ordinary
preliminaries and the ordinary technical provisions are observed before the Bills are finally
dealt with. I was led away by a consideration of the inconveniences that might flow from a
taxation or some other Bill being declared invalid by the High Court some time after it
became law. But exactly the same inconveniences may possibly arise from any single Bill
20 passed under the thirty-five heads of legislation with which the Federal Parliament will
have to deal. Therefore it seems to me that, whilst undoubtedly inconveniences may arise,
still these inconveniences do not militate against a very salutary power which as a
Federation we propose to vest in the High Court of the Commonwealth. I will only add
this-without going into the details applied in so masterly a way by my hon. friend Mr.
25 O'Connor, when he pointed out the real safeguard in relation to these sections which the
High Court might be at the instance of a suitor-that we must remember if we seek to
derogate from the power we vest in the High Court of dealing with all laws which any
citizen of the Federation may claim to be unconstitutional, we are not invading State rights,
because it is not a question of small States or large States, but it is a question of the liberty
30 and rights of every subject throughout Australia. It is the subject that is concerned in this; it
is not the body politic, but every taxpayer-every individual who may be assailed either in
his liberty-
Mr. REID: But if both Houses are favorable to the taxes, is there anything in that?
Mr. SYMON: That does not matter. The moment you override or coerce the Senate-
35 Mr. REID: Coerce! Why, one man has only to get up and point out that it is contrary to
the Constitution.
Mr. SYMON: Suppose you have a majority in the Senate willing to override the law,
how is the minority to be protected, how is the State represented by that minority to be
protected, and every dissentient citizen in any of the other States, large or small? But the
40 point I wish to call the particular attention of the Committee to is that if we seek to prevent
redress being obtained in the High Court with regard to the constitutional position of any
law, we are invading one of the first principles underlying any system of Federation. My
hon. friend Mr. Carruthers seems to forget that we are dealing with Federation when he
talks about a High Court to wreck the work of legislation. First of all, that is an
45 inappropriate expression. If he means we are constituting a High Court to decide whether
the laws are constitutional or not, undoubtedly we are. If not we had better sweep this
Federation away at once-we are here on a wild goose chase. Were we to adopt the
amendment, I do not see that it would have the effect which Mr. Carruthers urged, if it
were hedged round with such limitations as Mr. Higgins alluded to; but if we pass this
amendment in its present form we run the risk of making Parliament, in regard to Money
Bills, the judge of whether it is acting within the Constitution or not. If we do that we are
striking at the root of a just Federation, and it is from that point of view, which was brought
5 very clearly before the committee by my hon. friend Mr. Wise, that I feel it impossible to
vote for an amendment which at the first blush seemed to get over some [start page 594]
practical difficulty. I think we had better omit it altogether. If we omit it we shall be acting
consistently in this: that we shall be making no exception to the power of the High Court to
interpret the law of the Constitution, and declaring whether an Act of Parliament is
10 contrary to that or not. Parliament is not supreme, and the very essence of the Federation is
that it should not be so. Parliament, as far as constitutional questions are concerned, is
under the law, and it must obey the law. If we make an exception in regard to Money Bills
we had better make an exception in the case of all other Bills which may arise under the
provisions of clause 51, and thus sweep away the High Court. I thought that we were all,
15 agreed that the reason for the establishment of the High Court was a salutary one, and that
it would determine constitutional law and practice. We must all remember that at one
portion of the history of England a question of liberty was raised by a humble individual
named John Hampden, who put forward a point on the subject of taxation. We do not know
but that we may have John Hampdens in Australia raising questions of liberty; it would be
20 well to leave the High Court of Australia to deal with such matters as that.
Mr. Reid's amendment, by leave, withdrawn.
Sub-section 2 as read, agreed to.
Sub-section 3.
Sir GEORGE TURNER: I desire to draw Mr. Barton's attention to these words in the
25 subsection:
with one subject only.
That would require that every time you desire to deal with the duty of excise it should be
done by a separate measure. That cannot be the intention. It would very often happen that
30 the question of duty of Customs and the duty of excise would have to be discussed
together, and that it would be impossible to decide what ought to be done with regard to the
one unless you know what you will do with reference to the other. If we are to deal with
the large number of items included in a Customs Bill, I fail to see why we should not be
able to include in the same measure all duties of excise. I would ask the hon. member to
35 consider the matter, and either make an amendment or give us a reason for the retention of
the words as they stand.
Mr. BARTON: The reason why it has not been done so far is this: Sub-sections 2 and 3,
in consideration of the fact that laws imposing taxation are not subject to amendment by
the Senate, have been put in the form of protecting the Senate from the coercion which
40 might be involved in a taxation measure having added to it something which was not a
taxation measure, or a taxation measure having two distinct subjects of taxation brought
into the measure together. That protection is of course a counterpoise to preventing the
Senate from amending such measures. If what I might call the other side, in a genial way,
had their way this morning, it would be a question whether protection of this kind remains
45 in the compromise of 1891. The hon. member raises an important point, and that is whether
there is to be permission in the Customs Bill to have a corresponding excise. That is a
matter I must leave in the hands of the Convention entirely. For myself, I have no strong
feeling about it, except that we ought to keep as strong and inviolate as possible those
protections which are afforded not only to the Senate, but to the people themselves to
consider what under the Federal Government is involved in so separating the subjects of
taxation, and, as the next sub-section shows, the subject of appropriation, as to enable the
5 Senate to deal with them separately. The object of this, of course, is that inasmuch as
amendment is prevented the subjects should be so divided that no two subjects could come
before [start page 595] the Parliament together as matters of taxation, so that where the
Senate cannot amend they have the right of veto, and veto as far as possible in detail. Of
course they cannot have Customs or excise law in respect of so many items so that there
10 could be veto in regard to each, because veto in detail with all of these would mean
interference with the financial policy of the whole Government. But it has been
unanimously agreed in respect of taxation that the Senate should have a veto, and the
object of this clause is to divide into their proper categories all laws imposing taxation, so
that that veto may be exercised without interference and as a protection to the smaller
15 States and a protection of those rights which every Second Chamber ought to have,
whether it is the Senate of a Federation or a House made under the ordinary Constitution.
That is my object, and I am sure that the object would be infringed if the provision were to
allow the question to be considered in the same Bill. My position is this: that until I see
very strong reasons for doing otherwise it is my intention to adhere to the terms-I do not
20 want to bind anyone else-but I desire to adhere individually to the conclusions of 1891,
because I think they are the best basis upon which Federation can be secured. I think very
strong reasons should be adduced to allow the two subjects of taxation to be introduced
into the one Bill, and we should adhere as nearly possible to the Bill of 1891. Most of us
contend that the compromise or the conclusions of 1891 should be adhered to, and as we
25 have succeeded in our argument in showing that they should be adhered to in respect of
one portion of the clauses I think we should stick to them in regard to the other.
Sir EDWARD BRADDON: Although I entirely agree with the object of the clause in
one respect, I think it fails in the object intended to be given to it, and that is in the
exception as to laws for imposing duties of Customs. I question whether that exception is
30 sufficiently and carefully safeguarded. There is no doubt as an ordinary layman reads it that
under the laws imposing duties of Customs or on imports they can go on and impose
taxation in any other form. There is nothing to prevent the imposition of excise duties, and
there is nothing to prevent the law seeking to impose land or income taxes or anything else,
and therefore I hope, when the clause comes to be finally accepted, as I trust it will be, that
35 some limitation will be placed upon the exception in regard to duties. I think we all
understand what is meant, that a Bill imposing duties may necessarily have to deal with
any number of subjects liable to such duties, but as the subsection is worded it will go
much further.
Mr. ISAACS: An instant before Sir Edward Braddon called attention to this matter I was
40 directing Sir George Turner's attention to the same point. The intention is perfectly plain to
us at all events, but what may be done and what in future times may be contended is not
quite so clear. The sub-section reads:
Laws imposing taxation shall deal with one subject of taxation only.
Bills which impose duties of Customs on imports are entirely excepted from that
45 provision.
Mr. GLYNN: We can amend it.
Mr. ISAACS: Yes; and I think it should be made to read:

Laws imposing taxation shall deal with one subject of taxation only, provided laws
imposing duties of Customs on imports and of excise may deal with more than one item.
Sir WILLIAM ZEAL: I suggest that the best plan would be to postpone the clause
afterwards, and recommit it in order that the draughtsmen may re-cast it. We have now
5 been discussing the clause for a couple of hours, and have made little progress.
Mr. REID: I assure my friend Sir William Zeal that the matter raised by Sir George
Turner is very important.
[start page 596]

Sir WILLIAM ZEAL: Refer it to the draughtsmen.
10 Sir GEORGE TURNER: It is not a question of drafting.
Mr. REID: I would point out to Sir William Zeal that recommitting the clause might
mean fighting the matter all over again, and we want to get rid of it altogether. The point
raised by Sir George Turner is an important one. There may be a Customs Bill introduced,
and it may involve duties of excise on a large number of goods, and at present each excise
15 duty would have to be included in a separate Bill, and then a most unfair thing might be
done. Ten duties might be proposed, and eight, because they were popular, might be agreed
to, and the remaining two thrown out because they were less popular. If you have the
Customs as a whole you must have the excise as a whole.
Mr. FRASER: Surely duties of Customs on imports should be dealt with at the same
20 time as excise. That is only common sense, and might be agreed to at once, as we have
been wasting a tremendous lot of time
Sir GEORGE TURNER: I hope Mr. Barton will not mind me proposing to alter the
sub-section, as I know the difficulty of interfering with drafting, and I do not like to have
my own drafting interfered with. I will move:
25 That after the words "Customs on imports" there shall be added the words "and excise."
Mr. MCMILLAN: Do you mean that they should be in one Bill or two Bills?
Sir GEORGE TURNER: I think that they should be in one Bill.
Mr. MCMILLAN: Then you are making it necessary that there should be one Bill of
Customs and excise combined.
30 Sir GEORGE TURNER: I would not go that length.
Mr. WISE: I think the sub-section might be made to read:
Laws imposing taxation shall deal with one subject of taxation, and laws imposing duties
on imports shall deal only with duties of Customs and excise.
The difficulty my friend Sir George Turner suggests is that if you add laws imposing
35 duties on exports and laws imposing duties on excise you leave it this way: that you would
have to have as one Bill a Bill imposing duties on exports, and you would have to have
another separate Bill imposing duties on excise. I understand my friend may do this where
a Customs tariff is introduced and there are a number of balances in the same tariff at the
same time-Customs duties with excise duties.
40 Sir GEORGE TURNER: If necessary.

Mr. BARTON: Do we do that in our ordinary legislation? We bring in a separate Bill.
Sir GEORGE TURNER: We do not.
Mr. BARTON: I do not think it is the practice in New South Wales to go into
Committee of Ways and Means, both for Customs and excise, at the one, time; I think that
5 is the Flame in South Australia. It may mean a very important question to both Houses
whether the Customs duties should be in one Bill, and the duties on excise in another, or
whether they should both be in one Bill, and it is a question after all whether we should
depart from the arrangement here. I will put this case. It is easy to balance the duties on
Customs and duties on excise in one Bill if you do not regard certain contingencies which
10 may arise, but if you have another House to deal with and you have regard to the policy of
taxation, then, in a House to which you have conceded the right of veto, it is a different
matter. If you include several subjects in one Bill you will find the Senate ready to grant an
excise on beer, but not on tobacco, and it will not have the power to provide for that excise
on beer, without assenting to that on tobacco, inasmuch as the power of amendment is
15 taken from it. It would not have an opportunity of declaring itself on this, inasmuch as
these were placed in a sort of balance. So it remains a question whether these [start page
597] duties of excise should not be in one Bill and Customs in another, and also whether-
Mr. REID: Why Customs in this way?

Mr. MCMILLAN: I would suggest as an amendment the insertion of the words:
20 Except laws imposing duties of Customs and excise, whether in one or separate Bills.
Mr. BARTON: If you did that you would have both Customs and excise in one
measure.
Mr. MCMILLAN: Why not?

Mr. BARTON: Mr. McMillan says, "Why not?" I think that is a question to be debated
25 by the Convention. I have not considered the matter much myself. If you are to accept Bills
proposing duties of Customs and duties of excise, whether in one or separate Bills, you still
leave it open to have forced upon the Senate a Bill which contains duties on imports, and
also widely different duties on excise, and the question is whether that is within the
intention of the compromise of 1891, which was, as far as it was possible, to separate the
30 subjects in detail. Whether that power should be preserved, I think is a very important
question. It is, however, very easily overcome in the way of drafting. The suggestion of
Mr. Wise or a modification, of it might be put in. But inasmuch as I regard it as a question
of substance I will not say anything about it till the Convention has had an opportunity of
fully expressing itself. I would like to defer my opinion, only saying that it is my intention,
35 as far as possible, to adhere to the compromise of 1891.
Sit GEORGE TURNER: I would like to omit the words:
Except laws imposing duties of customs on imports,
and add at the end of the clause:
Providing that laws imposing duties of customs on imports, and also imposing duties of
40 excise, and may deal with any number of articles.
I do not desire to take away an item of the compromise, but I do desire to prevent
deadlocks occurring hereafter. From my experience I say that if you leave it in this position

you may have serious difficulties hereafter. You perhaps would have a duty of so much on
spirits, and an excise of so much on tobacco, and unless you deal with it in this way you
will get into a state of confusion.
Mr. BARTON: You might provide that no excise shall be imposed on any item which is
5 not also subject to taxation.
Sir GEORGE TURNER: I do not know. We have an excise duty on colonial beer. I am
perfectly prepared in this way, as suggested to me by Mr. Deakin, that where you have
items of Customs on imposts, and you desire to have an excise on similar articles they
could go in one Bill. But if the question applies to something on which you have no
10 Customs duty it might be put in a separate Bill. If you are going to impose a Customs and
you desire a duty of excise, these two questions ought to be considered and passed at one
time, for if you impose a duty of excise on a certain article and reject the duty of excise you
might destroy a large industry.
Mr. FRASER: I think that the amendment would be perfect provided that the duties in
15 the shape of excise would only deal with the subjects on which are imposed import duties,
but it does not say so. If duties are proposed on spirits or wines, and these articles have an
increase of duties proposed, then undoubtedly the Treasurer of the day should have the
liberty to propose duties of excise on similar articles but not to ring changes upon any
number of outside articles. If that is attended to the amendment will be in perfect order.
20 Mr. MCMILLAN: I think it is absolutely necessary in making a comprehensive

financial policy that a Bill introduced with Customs should also, as a rule, contain details
of the excise; but, at the same time, I think it would be a mistake to make it compulsory in
the Constitution that there should be one Bill. We ought to make it so that the excise and
Customs [start page 598] could be dealt with together, but that they could be introduced as
25 separate Bills if necessary.
Sir GEORGE TURNER: There is nothing to prevent that.
Mr. MCMILLAN: I am only pointing out now as a financier that I agree with Sir
George Turner that if you have a broad financial policy such as that which would usher in
the arrangements of a new Federation it would be better that the financial proposals should
30 hang together. There is no greater injustice to the Upper House in dealing with the Excise
Bill in globo than there is in the Upper House dealing with a Customs Bill in globo.
Mr. SYMON: We might adopt what Sir George Turner proposed if we struck out the last
few words, and inserted:
Upon any article upon which it is proposed to impose duties of Customs.
35 That would enable a financial proposal to be submitted, and would not be open to the
objections pointed out by the hon. member Mr. Barton, that it would be dealing separately
and independently with excise duties which in the interests of the States might be dealt
with separately, because in one State it might be to its interest to do so, though it might not
be in another State. It might be to the interest of South Australia to have excise duties on
40 tobacco, but it may not be on other articles.
Mr. REID: They should be taken together because we want to do away with these local
combinations causing strifes over one impost as against another, and deal with the question
in a broad national spirit.
Mr. SYMON: We want to prevent unpatriotic combinations.
Sir JOHN DOWNER: In this matter we are fighting over again the question as to
whether the Senate shall have power to deal with Money Bills or not. Here is the first
attempt to fritter away the right of the Senate in this matter. There will be cases in which
the subjects of import and excise must be very largely mixed up, and it may be highly
5 proper to consider the two things together. Where is the difficulty in having two Bills
before the Senate, where is the difficulty in their internal arrangements which prevents
them from dealing with them?
Mr. MCMILLAN: They might reject one and accept the other.
Sir JOHN DOWNER: If we are to force the Government to bring up its financial
10 resolutions piecemeal instead of in one Bill it would be it highly inconvenient thing to the
Government. I can understand every gentleman present who is a Minister in office now,
and who has these things brought more immediately before his mind at the moment, taking
this view. We ought not, however, to sacrifice a great constitutional principle on questions
like this. A great struggle took place over the power of amendment. That was reduced to
15 the power of veto, and that was again brought down to the question of whether veto,
instead of being general, should be in detail; and I understand that we have settled that it
should be in detail. Are we going to depart from that? So fax as practical difficulty is
concerned, there can be none in a Customs Bill and an Excise Bill going up at the game
time for consideration by the Senate.
20 Mr. MCMILLAN: It is not worth while fighting about.
Sir JOHN DOWNER: I do not know whether it is worth while fighting about it. We
want to find that out. We want to provide for this question of tacking, and for one Bill
being put on to another, and so compelling the Senate to pass Bills some parts of which
they like and with some of which they disagree. It is, I think, better to leave the clause as it
25 is.
Mr. BARTON: I understand it is proposed to strike out:
Except laws imposing duties of Customs on imports
And to insert at the end of the clause:

Providing that laws imposing duties of Customs on imports and also imposing duties of
30 excise, may deal with any number of articles.
[start page 599]
Sir GEORGE TURNER: I am not particular as to the wording so long as I got the
principle.
Mr. GLYNN: Leave out "excise."
35 Mr. BARTON: I think still the game difficulty arises, as the intention of the principle in
the conclusions of 1891 was, wherever it was reasonably possible, to separate matters so
that they remained separate matters of principle to be dealt with by the Senate separately.
This would be a departure from that principle, and would curtail those rights of the Senate
which are given to it in consideration of the fact that it may not amend Money Bills. It is
40 clear by the decision of to-day that the Senate may not amend Tax Bills, and I want to
stand to that principle of justice which, in lieu of the right to amend Money Bills, gives it
the right to deal in detail with and veto separate subjects of taxation. I think the course
which is adopted in some other colonies, as in this one and New South Wales, might well
be adopted by the Commonwealth, to pass a separate law for every such subject of excise
duty, to pass a separate resolution in ways and means for every such subject, and having
carried those resolutions to embody them in a Bill. There have been departures in all the
colonies, but that has been the prevailing rule, and I think it is the beat plan. If that view is
5 adopted I do not think we should leave out these words, but should leave the clause as it
stands and insert some words to meet Sir Edward Braddon's objections. His objection is an
important one. It is that the words:
Except laws imposing duties Customs on imports
may impliedly give leave when passing a Customs Bill to add other subjects of duties
10 other than Customs duties; so that a Customs Bill might include a Land and Income Tax
Bill.
Mr. SYMON: Hear, hear.
Mr. BARTON: That clearly was never the intention of the clause. While I wish to stick
to the substance of the compromise of 1891, I am perfectly ready that any amendment
15 should be made which can carry out and effectuate the intention of that compromise. I
think it might, be better if we retain the clause as it stands, and then add to the sub-section
the words:
And laws imposing duties of Customs shall deal with duties of Customs only.
I will move that as an amendment.

20 Sir EDWARD BRADDON: I only seek Mr. Barton's advice as to whether the words he
has just indicated will cover the ground we wish to cover as completely as a draft of an
amendment which I have shown him, and which proposes to add at the end of the sub-
section the following:
Provided that laws imposing duties or Customs on imports may deal with several duties or
25 Customs, but shall not deal with any other subject than such duties or Customs.
Mr. BARTON: I have already proposed an amendment to that effect.
Sir EDWARD BRADDON: Then I am satisfied.
Question-That the words, "Except laws imposing duties on Customs on imports,"

proposed to be struck out, stand part of the sub-section-put. The Committee divided.
30 Ayes, 23; Noes, 14. Majority, 9.

END QUOTE
.
QUOTE
Costello to shame premiers
35 David Uren and Steve Lewis
February 28, 2005
LABOR state governments that fall behind in spending on health, education and infrastructure
would be "named and shamed" under a Howard Government offensive to increase accountability
for $35 billion in GST revenues.
40
Peter Costello yesterday confirmed the Government's latest plan to increase its control over
national economic development, amid concerns that the states are squandering too much on public
sector salaries.

"If they're going to take $35 billion of GST revenue, they need to be held accountable," the
Treasurer told the Nine Network's Sunday program.
John Howard is expected to take a formal plan to the next premiers conference, after cabinet
discussion last week on ways to increase transparency of annual GST payments to the states.
5 But the Labor premiers, reinvigorated by West Australian Premier Geoff Gallop's emphatic election
win, will strongly contest any moves to increase Canberra's control over how they spend GST
funds.
Dr Gallop warned yesterday of a concerted federal attack on states' rights, saying his Government's
ability to deliver improved services was under threat.
10 END QUOTE
.
HOUSE OF REPRESENTATIVES
WEDNESDAY, 14 SEPTEMBER 2005
.
15 QUOTE dr140905-GST.pdf
Mr TRUSS—They could accept some kind of a
freeze on GST, if they chose to do so—I am not expecting
that they will.It is also true to say that business
users get their GST refunded for the fuel they use for
20 business purposes. The change in taxation policy
makes a huge difference to the price of fuel, and I think
it is part of the reason why the public have been a little
more understanding about the current price than they
have been in the past.
25 64 HOUSE OF REPRESENTATIVES Wednesday, 14 September 2005
CHAMBER
To put this into some kind of context, a family who
uses 50 litres of petrol a week is now saving $174 a
year in excise as a result of the changes that we have
30 made. If Labor had still been in office and there had
been no change to the tax system, the fuel excise now
would be 52.8c a litre, or 38 per cent higher than it is.
So Labor comes into this debate with a fair bit of history,
with a fair bit of dirty linen.
35 END QUOTE dr140905-GST.pdf
.
QUOTE Form69-78B-v13-PROVISIONAL-part-2.doc
1. That the Application of GST in various ways is unconstitutional as it seeks to apply taxation
on Court services as if it is some “service” to the community as a profit making entity,
40 rather that the Courts are beyond constitutional powers of the Commonwealth of Australia.
For example, if the imposition of a service charge upon the Courts were deemed to be
constitutional valid then it would not stop the Federal Government to apply a certain taxation
structure that effectively could be seen as to control the Courts, being State and or Federal.
45 A part of a 9-3-2006 correspondence to the Commissioner of Taxation is reproduced below,

which in itself ought to indicate that DIRECT and/or INDIRECT TAXATION was not
particularly considered to be applied to Courts, rather to private companies and ordinary
workers and their productions.
It cannot be held that somehow the administration of justice could be deemed to fall within
50 the category of “service” as a business matter.

The GST in that regard must be deemed unconstitutional where tit comes to “services”
provided by a Court. The moment “any form of taxation” can be deemed permissible upon
the ADMINISTRATION OF JUSTICE then it gives by way of backdoor the
Commonwealth of Australia powers to manipulate the State Courts. For example, it could
5 provide that any judgment made against it (the Commonwealth of Australia) would incur a
high taxation rate. For example, the Commonwealth could then legislate for taxation as to
JUDGMENTS pending to be GUILTY or NOT GUILTY findings, and then introduce a
special taxation levy against jurors that if they find a person “NOT GUILT” then they have
to pay themselves a certain penalty tax.
10 The British Parliament itself made clear that the moment you would connect the Court
system with an ABN number to a Department of Justice then it would in effect give that
Department or can be seen to be given powers to manipulate the Courts and by this influence
the Courts in its decisions, etc.
The Courts processes must not be deemed to fall within “service” provided for profits and
15 must be deemed to be outside the realm of taxation that can be levied against the Court and
so the services it provide where they are stricltly in the oridinary course of
ADMINISTRATING JUSTICE.
Fancy the Commonwealth of Australia to legislate that any judicial officer who pronounces
a judgment against the Federal Government and/or any of its Departments is to pay
20 $5,000.000.000.- in special taxation! The moment it is accepted that the Federal Parliament
can tax the ADMINISTRATION OF JUSTICE, and any services provided within this
process, then it is to give the Commonwealth of Australia the free hand to manipulate Courts
dicisions, both State and Federal.
It could for example levy a special tax of exhuberant cost, against any person wishing to be a
25 judge, and allow tax free entrée to those it decides can be granted such tax free entrée.
After all, the Commonwealth of Australia already does this unconstitutional kind of taxation
system with excluding Federal Members of Parliament superannuation from taxation, Peter
Reith (former Minister) unconstitutional tax exempt income of about two hundred and fifty
thousand dollars, etc.
30 Albeit the Commonwealth of Australia may appear to have unlimited taxation powers, the
truth is “that it is bound within the structure of the Constitution” and as such cannot apply
taxation where it would interfere with the judiciary or other matters not provided for within
its powers. For example a special taxation or tax examption on donations on religion would
be in breach of Section 116 and as such be unconstitutional!
35 A taxation on the services provided by the ADMINISTRATION OF JUSTICE therefore
must be deemed likewise UNCONSTITUTIONAL!
The 22 September 2006 hearing (at the time of the drafting of this document) as to taxation
therefore neither could be legitimately proceed where this would entail the Defendant to be
ordered likely to pay GST charges on services provided by the Court!
40 QUOTE 18-5-2004 CORRESPONDENCE from Mr. G. H. Schorel-Hlavka ;
WITHOUT PREJUDICE
Mr John Howard 18-5-2004
Parliament House Canberra,
Fax 02 6273 4100 Ph; 02 6277 7700 Re; “a multiple of 150 or 150%”
45 GST and other taxation abuses
Cc; Mr Mark Latham, Leader of Her Majesty Opposition
Mr Bob Brown, Senator Mr Andrew Bartlett, Senator,

50
END QUOTE 18-5-2004 CORRESPONDENCE from Mr. G. H. Schorel-Hlavka

QUOTE 18-5-2004 CORRESPONDENCE from Mr. G. H. Schorel-Hlavka
Mr. HIGGINS.-Clause 55 says that such a law would be invalid. I am speaking from
5 some little experience in our local Parliament. A Charities Bill was introduced, and it
was proposed to raise the money for the charities by means of a sports tax, and
additional rates upon ordinary lands and buildings. Supposing that money was required,
and the House of Representatives said that it should be raised by a tax upon lands, the
Senate might then say-"Oh, no, we can raise the same amount of money by means of a
10 tax on sports and lands." That suggestion could not be made, because if it were adopted
there would be two subjects of taxation in the Bill and the law would be invalid. I will
take another instance: It is provided that laws imposing taxation shall deal only with the
[start page 2024] imposition of taxes. Under that provision the Senate can make no
condition to a law imposing taxation, and it will have to accept the taxation as it stands,
15 or not at all. The law will otherwise be treated as invalid, and the taxpayers could then
re-fuse to pay anything. Then sub-section (3) says-"A law which appropriates revenue
or moneys for the ordinary annual services of the Government shall deal only with such
appropriation."
END QUOTE 18-5-2004 CORRESPONDENCE from Mr. G. H. Schorel-Hlavka
20 Again;
The law will otherwise be treated as invalid, and the taxpayers could then re-fuse
to pay anything.
Clearly, Mr G. H. Schorel-Hlavka, the Grandmaster “constitutionalist”, did advise the

25 Commonwealth of Australia about GST in its format being unconstitutional, but as generally
is applicable the government ignores this all together. This is precisely also the response
UPMART was getting when seeking the understanding/cooperation of the Victorian
Government.
30 The GST (Goods and Service Tax) being on not just sport and land but on everything else as
such clearly appears to be unconstitutional. It is not only of “Goods” and “Services” but also
it is a taxation on different “Goods” and different “Services”.

35 QUOTE Mr. REID.-
But do not let us forget that under the State arrangement of such matters there are scores
of systems which can be carried out, but under the federal jurisdiction the source of the
revenue for these old-age pensions will be strictly limited to Customs or direct
taxation.
40 There is no power in the Federal Parliament to carry out ideas which have been
suggested with great force in the different colonies that these pensions should be
derived by a certain system of licences on places of popular entertainment-taxes on
admissions to theatres and race-courses.
END QUOTE
45 Again;
QUOTE
There is no power in the Federal Parliament to carry out ideas which have been
suggested with great force in the different colonies that these pensions should be
derived by a certain system of licences on places of popular entertainment-taxes on
50 admissions to theatres and race-courses.
END QUOTE
.

The GST is doing precisely that!
We now find GST on about everything and as the Framers of the Constitution stated;
QUOTE 9-3-2006 from Mr. G. H. Schorel-Hlavka

5 WITHOUT PREJUDICE
Commissioner Michael Carmody (Executive Office)
Fax 1800 060 063
C/o department@treasury.gov.au.
Re; GST, tax deductions & various other issues
Sir,
I am soon to publish;
15 INSPECTOR-RIKATI® & What is the -Australian way of life- really?

A book on CD on Australians political, religious & other rights
This book deals with the abnormalities where what is constitutionally proper is side stepped
and we are subjected to unconstitutional conduct and legislation that is in fact ULTRA
20 VIRES.
In it also will be published my past 2004 correspondence to you and the lack of appropriate
response upon matters raised.
This correspondence also set out, in a limited manner, below that while Section 51 of the
Constitution in general was intended that once the Commonwealth of Australia by way of
25 the Federal parliament had exercise legislative powers then the States would no longer
possess such legislative powers, however Section 51(ii) in regard of TAXATION never was
intended to apply as such, just that the High Court of Australia may never have understood
this to be so.
Anyone who has studied the HANSARD records, such as the 22-4-1897 CONSTITUTION
30 CONVENTION DEBATES, would be aware that the Federal Government in its
enforcement of customs and duties (including taxation) throughout the Commonwealth. Yet,
we have that, as I understand it, the Federal Government unconstitutionally is providing tax
free incomes to people such as the High Commissioner Peter Reith, the former AWB
chairman about 1 million dollars, etc. I view that as a commissioner of Taxation is obligated
35 to ensure that taxation is paid by all Australian throughout the commonwealth in the same
manner and there must be a challenge against this unconstitutional conduct to payout tax free
incomes as it is beyond constitutional powers regardless if the Federal Parliament did
provide legislation for this.
Further, the same is with religious funding and so tax deductions regarding donations to
40 religious entities, which is and remains unconstitutional.
Hansard 17-3-1898 Constitutional Convention Debates (Australasian Federal Convention)

QUOTE Mr. DEAKIN.-
In this Constitution, although much is written much remains unwritten
45
END QUOTE
.
Some of the quotations following are taken from more extensive quotations reproduced
below, as to allow the reader to check in which context certain quotations were stated and to
50 elicit their true intent.
.Hansard 16-2-1898 Constitution Convention Debates
QUOTE
Mr. ISAACS.-
An income tax or a property tax raised under any federal law must be uniform
"throughout the Commonwealth."
END QUOTE
And
5 QUOTE
Mr. REID.-So long as he agrees with me, I do not care what his reasons are. It is vital to
the industrial interests of Australia that this matter should be settled as soon as possible.
Every man engaged in manufacture, in production, and in commerce will be thrown
upon his beam ends until he knows what the fiscal policy of the Commonwealth is to
10 be. Upon that ground alone, in mercy to the people, we should do what we can to compel
the Federal Government and the Federal Parliament to make the work of framing a uniform
Tariff their first great work.
END QUOTE
.
15 Hansard 16-2-1898 Constitutional Convention Debates (Australasian Federal
Convention)
QUOTE Mr. ISAACS (Victoria).-
If honorable members will turn to clause 52, which deals with the powers of the
Parliament, they will find that in sub-section (2) the Federal Parliament is empowered to
20 legislate in regard to customs, excise, and bounties, which shall be uniform "throughout the
Commonwealth." That is, within every state and every part of a state. "Throughout the
Commonwealth" is the largest expression that can be used. In the next sub-section it is
provided that all taxation shall be uniform throughout the Commonwealth. An income tax
or a property tax raised under any federal law must be uniform "throughout the
25 Commonwealth." That is, in every part of the Commonwealth.
END QUOTE
And
QUOTE
Sir JOHN DOWNER.-I cannot foresee. I cannot pretend to have the gift of prescience
30 which would enable me to know how ultimately a coach and four may be driven through
this Constitution. But I say let those who want limitations propose their insertion in the
Bill. I would prefer to leave the main enactment in this clause exactly as it stands. It may
be that the words of Sir Samuel Griffith represent all he can think of. Perhaps they may
represent all that can be wanted at any time; but it is just possible that something may be
35 omitted from them something which might derogate from this freedom of trade which we
intend to have throughout the Commonwealth, Then, I ask honorable members to consider
this: Although the clause says that trade and intercourse throughout the
Commonwealth shall be absolutely free, you have to look through this Constitution at
the other provisions, which show clearly what is the intention. This is a broad central
40 declaration; the rest you gather from a perusal of other provisions of the Bill. I think
the fears of Mr. Isaacs in the particulars he mentioned are not well founded.
END QUOTE
And
Why use a vague expression which may possibly seriously interfere with state
45 administration in some minor departments, which have been up to now, and always will be,
expressly left to the states?
*
The main principle laid down here is that after the expenses of the government of the
commonwealth have been deducted from the revenue, the balance shall be returned
50 to the states as nearly as possible in proportion to the amounts contributed by them.
*

I have observed that the members of the Drafting Committee have from time to time
contended that the Constitution is a matter of great principles. It is the contract
between all the parties to the union
*
5 Customs and excise, and bounties, but so that duties of customs and excise, and
bounties shall be uniform throughout the Commonwealth
*
It is quite easy to realise circumstances under which a tax, say upon land, might be
imposed by the state, and made a first charge upon property, and a similar impost
10 might be levied by the commonwealth; but the state law would have to come second,
and the, commonwealth would, therefore, have the first helping out of the fund for
providing that particular tax.
*
With regard to direct taxation, which we are more particularly discussing, the
15 colonies will possess in future every power which they now possess. Consequently, no
power is taken away except the power of imposing duties of customs or excise.
*
I believe an excise would also include a stamp duty.
*
20 There is nothing in this clause which will give the federal tax-gatherer any priority
over the state tax-gatherer.
*
The main principle laid down here is that after the expenses of the government of the
commonwealth have been deducted from the revenue, the balance shall be returned
25 to the states as nearly as possible in proportion to the amounts contributed by them.
*
Consequently the direct taxation will be in existence in the colonies before it can be
imposed by the commonwealth.
*
30 Excise would include licenses!
*
In no part of this clause is priority given to the federal government in the matter of
the right of levy.
35 The following clearly indicates that being it direct payments, tax deductions or other kind of
funding cannot be constitutionally valid in regard of any religion
Hansard 2-3-1898 Constitution Convention Debates (Australasian Federal Convention)
QUOTE
40 Mr. REID.-I suppose that money could not be paid to any church under this
Constitution?
Mr. BARTON.-No; you have only two powers of spending money, and a church could
not receive the funds of the Commonwealth under either of them.
45 END QUOTE
Clearly, tax deductions to religious organizations would be unconstitutional as it is the same
way as paying by allowing to pay less tax, being as a bounty or payment back from
otherwise applicable taxable income.
50 QUOTE
Mr. ISAACS (Victoria).-I quite agree with the view Mr. Barton has presented. It
seems to me, following that view, that now we have gone through the Bill and dealt
with the amendments, the Enabling Act provides what is really a statutory adoption
of the Constitution. It does not seem to me more than a formal motion, because it
distinctly provides that when the Constitution, as framed prior to the adjournment,
has been reconsidered, together with any suggested amendments by the Legislatures,
then the Constitution, so framed, shall be finally adopted with any amendments
5 agreed to. In fact, the whole trend of the Federal Enabling Act is that we must frame
a Constitution. It is not a matter of option with us whether we shall adopt the
Constitution or not, but having gone through the Bill as now presented, and the
various clauses having been agreed to by majorities, it seems to me, following the view
brought forward by the leader, that it is now our statutory duty to finally adopt this
10 Constitution.
The motion was agreed to.
END QUOTE
It is clear that the Constitution Convention (Australasian Federal Convention) was required
15 to provide a Constitution and that the following High Court of Australia ruling indicates;
QUOTE
it requires that "the whole of our law, written or unwritten,

is accessible to the public - in the sense, of course,
20 END QUOTE
WATSON v_ LEE (1979) 144 CLR 374;( JUDGE3 STEPHEN J.)
QUOTE
As Scott L.J. said in Blackpool Corporation v. Locker (1948) 1 KB 349, at
25 p
361 , speaking there of sub-delegated legislation, "there is one quite general
question . . . of supreme importance to the continuance of the rule of law
under the British constitution, namely, the right of the public affected to
know what that law is". The maxim that ignorance of the law is no excuse forms the
30 "working hypothesis on which the rule of law rests in British democracy" but to
operate it requires that "the whole of our law, written or unwritten, is accessible to
the public - in the sense, of course, that at any rate its legal advisers have access to it at
any moment, as of right".
END QUOTE
35 Meaning, that any taxation laws should be that people are aware of what is applicable. If
then the Federal government takes it upon itself to give tax free incomes to certain people
then clearly this is not a known taxation matter and must be deemed for this also illegal.
To understand some of the reasoning behind how customs and duties (taxes) are applicable
we must consider it also in the context of what was debated;
40 Consider the following;
QUOTE
The very principle of the Federal Constitution is this: that the Constitution is above
both Houses of Parliament.
END QUOTE
45 As such, parliament cannot override constitutional provisions and limitations, and for so far
any legislation that is beyond constitutional powers it will be ULTRA VIRES and as such
not legally enforceable.
QUOTE
What is really wanted is to prevent a discrimination between
50 citizens of the Commonwealth in the same circumstances.
END QUOTE
While the Commonwealth of Australia, so to say, has a free reign on imposing direct
taxation, it is however limited by the fact that all laws enacted by the Federal Parliament
(actually they are passed as Bills by the Federal Parliament and do not become law until
Royal Assent is has been given and they are published, as to be available to the general
5 community) that all laws enacted must be “UNIFORM” throughout the Commonwealth of
Australia. Tax deductions can be deemed to be bounties and as such must be deemed to
operate in the same manner.
QUOTE
10 The reductions may be on a sliding scale, but they must always be uniform.
END QUOTE
And
QUOTE
15 necessary for the Federal Parliament to make them commence at a certain amount at once.
fix the uniform tariff, and if any reductions made are on a sliding scale great injury
will be avoided.
20 END QUOTE
QUOTE Mr. BARTON.-
But it is a fair corollary to the provision for dealing with the revenue for the first five years
25 conclusion that, on the whole, it will be a useful and beneficial provision.
END QUOTE
And
QUOTE
30 excise such as it may determine, which insures that these duties of customs and excise
would represent something like the average opinion of the Commonwealth-that power, and
35 END QUOTE
The first indication that the Framers of the Constitution intended for the States to keep full
taxation powers, regardless if the Commonwealth of Australia were to implement taxation
can be shown by the quotation below;
40 QUOTE
Sir GEORGE TURNER (Victoria).-
If the money were taken out of Customs revenue, and the clause were not in the Bill,
there would be so much less surplus to return to the states, and the states would have
to make up the deficiency themselves by direct taxation.
45 END QUOTE

QUOTE

on any goods exported from one state to another;
END QUOTE
QUOTE
Taxation; but so that all taxation shall he uniform throughout the Commonwealth, and that
no tax or duty shall be imposed on any goods passing from one state to another.
END QUOTE
10 And
QUOTE
15 END QUOTE
And
QUOTE
20 or parts of states, or between persons or things passing from one state to another."
25 END QUOTE
Then, on 16-3-1898 is appears to have been amended, without further discussion but
approved off by voting, from;
QUOTE
30 Taxation; but not so as to discriminate between states or parts of states, or between persons
END QUOTE
To
QUOTE
35 Taxation; but not so as to discriminate between states or parts of states
END QUOTE
It was claimed that in substance there was no change. Hence, both versions ought to be taken
as having the same meaning.
40 This is a critical issue as the wording;
QUOTE
“or between persons or things from one state or another”
END QUOTE
45 neither one person having a tax free income, partly or wholly while another having the same
income is required to pay more tax.
What must be noticed is that while the wording in subsection 51(ii) regarding taxation did
alter, the principle that the State retained its rights to raise taxation was maintained
50 throughout as statement from the 1891 (see 31-3-1891) and 1898 (11-3-1898) Constitution
Conventions clearly underlines, and that the change from 11-3-1898 to the version of 16-3-
1898 was not an amendment per se but rather held to be to improve the clause without a

change in substance, unless it was specifically stated otherwise, as was applicable with
clauses 9 and 10 relating to time and places.
Further, in regard of tariffs, customs, duties, taxation, etc it was made clear that in regard of
the Commonwealth of Australia it was bound to have charges uniform throughout the
5 Commonwealth, albeit uniformity did not mean that a sliding scale could be used. As such a
sliding scale that was apply throughout the Commonwealth, such as the sliding scale of
percentage payable on income tax is within constitutional powers and limits. However,
having people exempt from taxation by special deals is beyond constitutional powers if such
exemption is not applied on a uniform bases throughout the Commonwealth.
10
Therefore any person, say, earning $100,000.00 a year must be charged the same income tax
rate as any other person anywhere in the Commonwealth of Australia earning the same. It
means that soldiers getting paid so called tax free special payments is unconstitutional as like
tax free income payments for a High Commissioner or other persons such as the alleged
15 about $1 million paid to the former Chairman of the AWB
For example, I see no issue with tax exemption to all and any person who are to have an
income below a certain threshold but I would have an issue if a person has an income, say,
just below the threshold and then was to be paid so called tax free income as this would be
unconstitutional.
20 The Commonwealth of Australia, like any other employer would be bound to pay its
servants under the same taxation legislative provisions as that is applicable if those people
were working for another employer.
With the child support, this clearly cannot be a debt to the Commonwealth as if it were it
25 would be required to be paid into Consolidated Revenue. Whatever the High Court of
Australia in the past may have ruled otherwise the issue is what is constitutionally
appropriate.
While it was held
30 http://www.aph.gov.au/Library/pubs/cib/1997-98/98cib01.htm
QUOTE
This 'power of the purse' has enabled the Commonwealth to engage in policy making in
areas over which it has no direct constitutional powers and has also given it influence over
State borrowing.
35 END QUOTE
This is in fact not at all as such, as I have set out extensively in my already published books.
QUOTE
40 Mr. WISE.-If the Federal Parliament chose to legislate upon, say, the education
question-and the Constitution gives it no power to legislate in regard to that question-the
for our schools," and thus they might wink at a violation of the Constitution, while no
45 one could complain. If this is to be allowed, why should we have these elaborate
50 has a more serious aspect, and for that reason only I will ask permission to occupy a
END QUOTE

http://www.aph.gov.au/Library/pubs/cib/1997-98/98cib01.htm
QUOTE
The Committee presented its report and recommended that, for the duration of the War and
one year afterwards, the Commonwealth government should be the sole authority to
5 impose taxes on income and that the States should be duly compensated. In May 1942,
legislation was introduced in the Federal Parliament to give effect to this recommendation
and a uniform income tax scheme came into operation on 1 July 1942.
END QUOTE
Constitutionally, the Commonwealth of Australia, regardless if the States had agreed with it,
10 could not exclude the states from raising their own taxes, as it would required a Section 128
referendum to deny the States to raise their own taxes. What is embedded in the constitution
that the States have constitutionally their own taxation powers cannot be denied without an
amendment of the Constitution for this.
15 http://www.aph.gov.au/Library/pubs/cib/1997-98/98cib01.htm
QUOTE
However, the States' ability to devise new taxes was constrained by High Court
interpretation of section 90 of the Constitution. Section 90 states:
'On the imposition of uniform duties of customs the power of the Parliament to impose
20 duties of customs and of excise, and to grant bounties on the production or export of
goods, shall become exclusive...'
There appears to be a significant difference between an economist's view of what constitutes
an excise and the view taken by the High Court. To an economist, an excise is a tax which is
imposed upon goods which have been produced domestically (as against customs duties
25 which are imposed on imported goods). An excise is usually applied at the point of
production, for example, being paid by the oil refiner or by the cigarette manufacturer. In
this respect, an excise is different from a sales tax, which is usually imposed at the wholesale
or retail level and which generally does not discriminate between domestically produced and
imported goods. This distinction is even more important in a federal system of government.
30 END QUOTE 9-3-2006 from Mr. G. H. Schorel-Hlavka
QUOTE Form69-78B-v13-PROVISIONAL-part-2.doc
Comments; as the small selection of the highlighted sections of the notes below indicate:
POLITICIANS ARE NOT ABOVE THE LAW! The G.S.T. act clearly violates the
CONSTITUTION and thus it is ILLEGAL and NULL AND VOID!
35 Note: This document should be attached to my file for future reference since from now
on, the G.S.T. portion will be withheld from every Invoice.
678 COMMENTARIES ON THE CONSTITUTION [Sec. 55]
40 House of Representatives behind them, might be entirely subverted. That is a difficulty which, I think,
none of us wish to create. Therefore, I am prepared to take the responsibility of adhering to the
amendment. Holding the position I have always held, that the Senate should be a real body and not a
mockery o f State interests while it should be a Second Chamber holding definite powers and rights
as expressing the will of the people within the States which it represents -I have also held that we
45 should only carry responsible Government into effect by making it real and effective, and a power of
amending a machinery Bill to the extent of making a tax not worth collecting would be equal to the
power of amending a Bill imposing taxation."
{31r. E. Barton, Conv. Deb,, 1Ielb., p. 2060.)
"All I am endeavoring to do is to attribute a meaning to words in this Constitution, which I
50 be lie ved in Adelaide and I explained my belief as I have read -that they did convey, which I am
inclined to be lieve now they do convey, without a spec ial ex planation; but as to which I am in
se rious doubt, be cause of the ve ry strong ex pres s nature of the words ' shall de al with the
imposition of taxation only.' It is in orde r to remove tha t doubt, and for that purpose only,
that I wish thes e words to be inse rte d, and I really do be lieve that the insertion of the words
55 will ca rry out the real spirit of the unde rstanding of 1891." (Id. p. 2u67.)
Mr. Barton's amendment to add the words " and collec tion " was rejected by 26 votes to 16.
But se e Note, § 248, supra
§ 25 5. “ Sh al l be of No Ef fe ct ."
60
The next important point discussed was whether a law violating the rule forbidding the combination of
taxation with any other matter, or the rule forbidding a tax Act to contain more than one subject of
taxation, should be void in toto, or should b e void only to the extent of the irrelevancy, or to the extent
of the additional subjects. Mr. G. H. Reid moved that the prohibition should not invalidate any part of
5 law which did not infringe the provisions of the Constitution, and that if any law imposing taxation
contained more than one subject of taxation, the tax first in order of enactment should be take n to be
properly passed .
(Conv. De b., Melb., p. 2O89.)
This amendment was negatived by 27 to 15 votes feeling, however, prevailed in th e
10 Convention that some provision should be made in the Constitution, to effect that only the
parts of the Act in which the forbidde n matte r ex isted should b e invalid. At a later stage
MR. Reid moved the inserti on of the words "and any prov ision therein d ea ling with any other
matte r shall be of no ef fect." This amendment was acce pted without a division .
Conv. De b., Me lb., 2415.)
15
§ 25 6, "O ne Su bj ec t of Ta xa ti on On ly ."
By the first paragraph of the section, laws imposing ta xation must de al only with the
imposition of taxation. If th e section contained no other limitation regulating and restricting
20 the exercising of the taxing power there would be nothing to prev ent the House of
Representative s fro m se nding to the Senate a bi ll contai ning a number of separate and
inde pende nt taxe s. The se ction, howeve r, goes on to enact that laws imposing taxation shall,
with the ex ception of those relating to customs and ex cis e, de al with one subjec t of taxation
only. It is nece ssary to ex plain the object of this limitation . By the se cond paragraph
25 of se c. 53, the Senate is depri ve d of the power to amend tax bills, but it may, constitutional ly
reje ct them . In orde r to maintain its righ t to ve to, in de tail, ea ch specific tax to which it
objects , without thereb y involving the rejection of other taxe s of which it approves , the
Constitution proh ibits the combination of taxation proposals; it requires ea ch proposed tax to
be submitted by the House of Repres entative s to the Senate, in a se parate bill . This
30 procedure being followed the Senate can exercise its discretion with respec t to ea ch tax,
without be ing coerce d to pass a tax to which it objects, in orde r to ca rry a tax which it de sires.
In this respec t the Senate will have grea ter control ov er taxation than the House of Lo rds
enjoys.
The Papers Duties Pre cedent may be here referre d to in illustration of the manner in which
35 se c. 55 will operate in strengthening the Senate. In 1860, the Commons
§ 256.] POWERS OF THE PARLAMENT 697
40 determined to bal ance the year's ways and means by an inc rease of the prope rty tax and stamp
duties, and the repeal of the duties on paper. The increased taxation had already received the
assent of Parliament, whe n the Lords rejected the Paper Duties Repeal Bil l; and thus ove rruled
the financial arrangements voted by the Common s. That Hou se was natura lly sensitive to this
enc roachment upo n its privileges; but the Lords had exe rcised a legal rig ht, and the ir vote was
45 irrevocable during that session. The Commons, the refore , to maintain the ir privileges, recorded
upo n their jou rnal, 6th July, resolu tions affirmin g tha t t he rig ht of granti ng aids and supplies
to the Crown is in the Commons alone ; tha t the power of the Lords to reject bills rel ating to
taxation "is jus tly regarded by this Hou se with peculiar jealousy , as affectin g the right of the
Commons to grant the Suppl ies, and to pro vide the ways and means for the service of the year;
50 and tha t to gua rd, for the future , aga inst an undue exe rcise of tha t power by the Lords, and to
secure to the Commons the ir rightful con trol over taxation and supply, this Hou se has in its
own hands the power so to impose and remit taxes, and to fra me bil ls of supply, that the right
of the Commons as to the matte r, manne r, measure, and time may be maintaine d inviolate .” In
accordance with these resolu tions, during the next session , the fin ancial scheme of the year
55 was presented to the Lords for acceptance or rejection as a whole. The Common s again
resolved that the paper duties sho uld be repealed: but, ins tead of see king the concurrence of
the Lords to a separate bill for that purpose, the y included in one bill the repeal of those dut ies
with the propert y tax , the tea and sugar duties, and other ways and means for service of the
yea r; and this bil l the Lords were const rained to accent . The bud get of each year has since that
60 occasion been c omprised in a general and composite Act - a pro cee ding suppor ted by
pre cedent. In 178 7, Mr. Pitt's entire bud get was comprised in a single bill; and during many
subsequent years gre at varietie s of taxes were impose d and con tinued in the same Acts.{Ma y’s
Pa rl. Prac. 10 th ed. pp. 550 1.)
65 Fro m thi s prece den t it app ears that the Commons have the right to send to the Lords a single
scheme of taxation embodying the repeal of old taxes and the imposition of new taxes; the function of
the Lords being, in such a case, limited to a simple assent to the whole scheme or a simple negative of
the whole scheme. Such a composite or general tax bill could not be submitted by the House of
Representatives to the Senate; it would be unconstitutional, the maxim being "one tax one bill" , except
70 in the case of bills dealing with customs and excise.
We have now to consider wha t will be the consequence if Parliame nt sho uld , whe the r by
accident or design pass a law imp osing taxation, yet dealing with more than one subject of
taxation --a law , say, imposing an income tax and a stamp dut y. A proposal that the tax
sta nding first in order in the enactment sho uld be valid , whi lst the other , or others, nex t in
ord er sho uld be null and void, was rejected by the Convention. No pro visio n is made in the
Constitution, therefore, for segre gating the taxes and providing for the val idi ty of one and the
nulli ty of others . Whe re the Constitution intends tha t one por tion of an Act only shall be of no
effect and the rest operat ive it is so expre ssed. The only conclusion is that an Ac t embodyin g a
5 plu rality of taxes would be absolutely and comple tely ultra vires .
Rec ommenda tion of mone y votes.
. 56. A vote , resol ution , or propo sed law ' 257' for the appro priation of
reve nue or moneys shall not be pa ssed unle ss the purpo se of the
10 appro priation has in the same session been recommended by mess age
of the Gove rnor -Gene ral to the House in which the propo sal
originated. 258.
HIS TORICA L NOTE.-- The provision in the Commonwealth Bill of 1891 wa s:
15
§ 249-250) POWERS OF THE PARLIAMENT 671
§ 249. "Increase Any Charge or Burden on the People."
20 The Senate may not amen d any prop osed law so as to incr ease any prop osed
charge or burden on the pe ople . This prov isi on may be describ ed as a
limitat ion on the res erved power of the Senate to amend mone y bill s, other
than tax bills and ann ual appropriat ion bills. See ing that the Sen ate can not
amend a bill imposing taxation, it may be naturally aske d ho w can the
25 Sen ate possibl y amen d a proposed law so as to increase any prop osed charge
or burden on the people? The ans wer is that the Senate is only for bidd en to
amend tax bill s and the ann ual appropr iati on bill; it may amend two kinds of
expenditure bills, viz.: tho se for permanent and extraordinary appr opriati ons.
If the Sen ate could propose an increase in the amount of money to be spent
30 in publ ic wor k bill say from one mill ion sterlin g to two million s ster ling that
amendment would necessitat e increased ta xation in orde r to give effe ct to it,
and consequent ly an addi tion to the burdens and charges on the peop le. The
Sen ate may amend such money bill s so as to reduce the tot al amou nt of
expenditure or to change the meth od, object, and destinatio n of the
35 expen diture, but not to increase the tot al expendi tur e origina ted in the House
of Repr esen tatives.
§ 250. ” T he S e na t e m a y • • Return to the House.”
40 S U G G E S T I O N O F AM EN DM EN TS . Th e mo ne y bi ll s w h i c h th e Sena te
cann ot am en d ar e bill s im posing taxati on an d bil ls appro pria ting mon ey
for or din ary annu al serv ices. Bill s of this description cann ot be am en ded
by th e Se na te, but it ma y, at any stag e, return th em to the Ho use of
Re presentative s with a message re questing the omis si on or amen dment of
45 any item or pr ovision. Un der this la w the Sena te could suggest
am en dments in th e or din ary an nu al appr op riation bills, an d in ta x bills,
such as a bil l to im po se duties of cu stoms an d exci se. If the sugg est ions
thus ma de wher e not entert ai ne d by the Ho use, th e Se nate wo uld have to
pass or reje ct th ose bills, as sent fr om the House, so th at the
50 resp ons ibil ity of final acceptan ce or reje ct ion wo uld re ma in wi th the
Senate as if no sugg estion ha d been ma de. A fier ce controvers y ha s ta ken
place with refere nc e to th e power conferre d on th e Se na te to sugg est
modif ic ations in bills which it cann ot am en d. Th e argu me nt has been
thus summ ed up by Si r Samuel Griffith: ”W hether the mo de in which the
55 Senate sh ould ex press its desire fo r an al tera tion in Mone y Bil ls is by an
am en dment, in whic h they requ est the conc urrenc e of th e Ho use of
Re presentative s, as in othe r cases, or by a sugg est ion th at the desire d
am en dment s h o u l d b e made by th e la tt er Ho use, as of its own moti on,
seem s to be a matt er of mino r im por ta nc e. A stro ng Se na te wi ll comp el

attention to i t s su ggest ions ; a we ak on e wo uld not in si st on it s
am en dments." (N ot es on th e Draft Fe der al Cons tituti on, 1897, p . 9 . )
There does, however, seem to be a substantial constitutional difference between

the power of suggestion and the power of amendment, as regards the
5 responsibility of the two Houses. A short analysis will make this clear. In the case
of a bill, which the Senate may amend, the Senate equally with the House of
Representatives is responsible for the detail. It incorporates its amendment in the
bill, passes the bill as amended, and return it to the House of Representatives. If
that House does not agree to the amendment, the Senate can ”insist on its
10 amendments,” and thus force the House of R epresentatives to take the
responsibility of accepting the amendments or of sacrificing the bill; whilst the
House of Representatives cannot force the Senate to take a v ot e on the bill in its
original form.
On the other hand, in the case of a bill which the Senate may not amend, the
15 House of Representatives alone is responsible for the form of the measure; the
Senate cannot strike out or alter a word of it, but can only suggest that the House
of Representatives should do so. If that House declines to make the suggested
amendment, the Senate is face to face with the responsibility of either passing the
bill as it stands or rejecting it as it stands. It cannot shelve that responsibility by
20 insisting on its suggestion, because
'...However, the judiciary has no power to amend or modernize the Constitution to give effect to what
Judges think is in the best public interest. The function of the judiciary, including the function of this Court,
25 is to give effect to the intention of the makers of the Constitution as evinced by the terms in which they
expressed that intention. That necessarily means that decisions, taken almost a century ago by people long
dead, bind the people of Australia today even in cases where most people agree that those decisions are out
of touch with the present needs of Australian society.'
":.. The starting point for a principled interpretation of the Constitution is the search for the
30 intention of its makers"
Ga udr on J (W akim, HC A27\99 )
"...But-in the interpretation of the Constitution the connotation or connotations of its words should remain
constant. We are not to give words a meaning different from any meaning which they could have borne in
1900. Law is to be accommodated to changing facts. It is not to be changed as language changes. "
35 Windeyer J (Ex parte Professional Engineers' Association)
.. . "A Fe de ra l co ns ti tu ti on mu st be ri gi d. Th e go ve rn me nt it est ab li she s must be on e of

de fi ne d pow er; wi th in th os e po we rs it mu st be pa ra mount bu t it mu st be in co mp et en t to go
be yo nd then ."
40 Gu mm ow an d Ha yn e JJ (Wa ki m, HCA2 7 \99 )
§ 33 "An d all Law s”

No di fficulty is su gge sted by th e words ; "and all the laws mad e by th e Par liame nt of the
Commo nwea lt h under the Cons titution.” The word s "u nd er the Cons tit ut ion" are wo rd s or
li mi ta ti on an d qu al if ic at io n. Th ey are eq uival en t to the words in the cor resp on ding sa nct ion of
45 th e Co nst it ution or the Unit ed St ates "i n pur sua nc e thereo f,” Su pra . N ot all en act men ts
pu rp ort in g to be la ws mad e by th e Par li ame nt are bi ndi ng; but law mad e un de r, in pur sua nce of ,
an d wi th in th e au thori ty co nf erred by th e Con stit utio n, an d thos e on ly , are bind ing on th e
co urt s, ju dge s, and pe opl e. A law in ex ces s of the a utho ri ty co nfe rr ed by th e Const it ution is no
la w; it is wholly voi d and in ope rati ve; it co nfe rs no ri ght , it im po se s no du ti es ; it af fo rd s no
50 pr ot ec ti on . ( Nor ton v. , Sh el by Coun ty, 1 IS U.S. 42 5; se e not e § 44 7
“P ower of :1 1C Par li ame nt of a Col on y.' ') .
Th e Act it sel f is bi ndi ng wi th ou t li mit ation o r qua li fi cat io n bec au se it is pas sed by the
so ver ei gn Pa rli ame nt , but laws pas se d by th e Par li ame nt of th e Co mm on we al th , a su bor dinat e
Par li am en t, mu st be wi thin th e li mit s of the del ega ti on of po wer s or th ey wil l be nu ll an d voi d.
To be val id and bind ing th ey mus t be wi thin th e do mai n of ju ri sdi ct ion map pe d ou t and
5 de li mit ed in exp ress term, or by ne ce ss ary imp li cat io n, in th e Co nst it utio n it se lf . Wha t is not
so gra nt ed to the Par li ame nt of th e Co mm on we al th is de nied to it . Wha t is no t so gra nted is
ei ther reser ved to th e Sta tes, as ex pre ssed in the ir resp ect ive Co ns ti tuti on s, or re mai ns ves te d
bu t do rma nt in the peo pl e of th e Co mmo nw ea lt h, Th e po ssible are a, of enl ar gem en t of
Co mmo nwea lt h po we r by, an amen dmen t of th e Co ns ti tu ti on wil l he con si der ed un der Ch apt er
10 VI II.
Eve ry le gisl ative ass emb ly ex is ti ng un de r a fe der al con st it utio n is mer el y a su b -or di nat e law-
making bo dy, whos e laws ar e of th e nat ure of by -la ws , val id whil st wi thin th e au thori ty
co nf erred up o n it by the co nst it utio n, but in val id or un co nst it uti on al if they go be yon d th e
15 li mit s of suc h aut hor it y. Th er e is an app aren t abs ur dity in com pa ri ng th e le gislat ure of th e
_ Unit ed Sta te s to an Englis h rail way, co mpa ny or sc hool boar d, but the co mpa ri so n is ju st . ..a
la w passed by C on gr es s which is in ex ces s of its le gal po we rs as co ntraven in g th e
Co ns ti tu ti on is in val id;... a law pa ssed by Congre ss is cal led an Act of Congr es s; an d if ultr a
vi res is des crib ed as ùn co ns tit utio nal ’; a la w pas se d by the Gr eat Eas te rn Rail way Co mpa ny is
20 ca ll ed a ‘b y-la w', an d if ul tr a vires is cal le d, not ùn co ns ti tuti on al' bu t ì nva li d'. .
QUOTE 060309
WITHOUT PREJUDICE
Peter Beattie MP, Premier 9-3-2006
25 General Office premiers.master@premiers.qld.gov.au
Phone: 07 3224 4500, Facsimile: 07 3221 3631 Ref; Terrorism, Constitutional issues, etc
PO Box 185 Brisbane Albert Street Qld 4002
Cc; Terry O’Gorman Australian Council for Civil Liberties robogor@ozemail.com.au
30 Mr Peter Webb, secretary-general The Law Council of Australia mail@lawcouncil.asn.au
Mr Richard Faulks, President, Australian Lawyers Alliance enquiries@lawyersalliance.com.au
James McConvill , Lecturer at Deakin University law School, Melbourne james.mcconvill@deakin.edu.au
Mr Lex Lasry QC, Chairman of Victoria Criminal Bar Association Lex.lasry@vicbar.com.au
Prof Andrew Fraser, andrew.fraser@mq.edu.au
35 Andrew Byrnes Prof int law UNSW ahrc@unsw.edu.au
Hilary charlesworth & Gabrielle McKinnon ANU C/o hilary.charlesworth@anu.edu.au
Mr Kim Beezley, Leader of Her Majesty (Federal) Opposition, Kim.Beazley.MP@aph.gov.au
Mr Michael Jefferey, Governor-General@gg.gov.au
Luke Howie info@homelandsecurity.org.au
40 Mr John Stanhope leah.deforest@act.gov.au
Mr John Howard & Peter Costello David.Hawker.MP@aph.gov.au
Christoph Pyne C.Pyne.MP@aph.gov.au
John Cobb John.Cobb.MP@aph.gov.au
Mr Bob Brown, Senator (Greens) senator.brown@aph.gov.au
45 Senator Lyn Allison (AD) senator.allison@aph.gov.au
Mark Vaile (Nationals) mark.vaile.mp@aph.gov.au
The Honourable Clare Martin MLA chiefminister.nt@nt.gov.au
Premier Mr Steve Bracks info@parliament.vic.gov.au
Premier The Hon. Morris IEMMA, MP thepremier@www.nsw.gov.au
50 THE HON DR GEOFF I GALLOP BEc MA MPhil DPhil MLA wa-government@dpc.wa.gov.au
Premier Mr Paul Lennon judy.jackson@justice.tas.gov.au
Hon MIKE RANN MP ramsay@parliament.sa.gov.au
Steven Ciobo Steven.Ciobo.MP@aph.gov.au
marise@marisepayne.com , P.Georgiou.MP@aph.gov.au, J.Moylan.MP@aph.gov.au
55 Senator George Brandis, senator.brandis@aph.gov.au
Senator Barnaby Joyce senator.joyce@aph.gov.au
Sir,

QUOTE
Mr. DOUGLAS (Tasmania).-As I understand, the clause now before us is as. follows:-
A state shall not make or enforce any law abridging any privilege or immunity of citizens
of other states of the Commonwealth. [start page 679] That is the first portion. Now, I ask,
5 if you impose on the citizens of one Estate a law not applicable to the citizens of another
state, is not that interfering with the privileges of the citizens of that part of the
Commonwealth? The second part of this clause provides-
nor shall a state deny to any person within its jurisdiction the equal protection of the
laws.
10 If Victoria imposes on me a special tax because I happen to reside in Tasmania, owning
property in this colony, am I properly protected under this clause? Surely the meaning of
the clause as it now stands is that the protection of the Commonwealth shall extend to all
citizens of the Commonwealth, in whatever province they may own property, and in
whatever province they may reside. I submit that the word citizens "here ought to be
15 properly defined. I am at a loss to understand whether it means citizens of a particular state
or citizens of the Commonwealth.
Mr. SYMON.-Citizens of the Commonwealth.
Mr. DOUGLAS.-Then, how can a state impose a special tax on a citizen of the
Commonwealth because he happens to reside in another portion of the Commonwealth?
20 The thing is absurd on the face of it. If we are to federate, let us federate in a proper spirit.
What is the use of talking about the Federation if a citizen in one part of the
Commonwealth may be treated differently from a citizen in another part of the
Commonwealth? Unless the true spirit of federation is infused into this Constitution, we
had better have no federation at all, and the sooner we depart to our respective homes the
25 better.
Mr. REID.-Hear, hear.
Mr. DOUGLAS.-Yes, and then New South Wales will have all she wants. Let us have
something straightforward. If we are to have a federal community, do not restrict us in this
sort of way. I beg to move, as an amendment, that this clause be omitted, with a view to the
30 insertion, in lieu thereof, of the following clause, suggested by the Legislative Assembly of
Tasmania:-
residing in any territory of the Commonwealth, shall be citizens of the Commonwealth,
and shall be entitled to all the privileges and immunities of citizens of the Commonwealth
35 in the several states, and a state shall not make or enforce any law abridging any privilege
or immunity of citizens of the Commonwealth, nor shall a state deprive any person of life,
END QUOTE
40 And
QUOTE
Mr. REID.-Probably; one could rely upon a South Australian to discover anything of
that sort. The result of these decisions was that persons drawing wealth from this mine,
from which the New South Wales Government receive, I think, 5s. per acre per annum,
45 found themselves out of the reach of taxation, and their estates after their death were
absolutely beyond probate duties. Now, under a system of direct taxation, the New South
Wales Government gets something like £15,000 a year from the Broken Hill mines. This,
no doubt, is a very fine federal enterprise, to create distinctions and to abridge our
jurisdiction in dealing with the wealth produced in our own colony. Personally, I am not at
5 all in favour of an absentee tax. It cannot be said that the New South Wales income tax is
such a tax. I wish, however, to direct the attention of honorable members to the very
dangerous track we are going upon in not being satisfied to leave to the states that which
we profess to leave to them. We profess to leave to the states their powers of local
management in certain respects, but we are constantly trying to meddle with concerns
10 which do not belong to us, and which will not belong to the Federal Commonwealth. I am
afraid that this action will create a very unhappy impression in the various colonies. We are
all in favour of giving equal citizenship and the equal protection of the laws to all the
members of the Commonwealth. It is quite novel in Australia to hear any talk upon this
point, because I think this has been universally conceded here. I am prepared to vote upon
15 the lines laid down by the honorable and learned member (Mr. O'Connor) in guaranteeing
equality to all the citizens of the Commonwealth; but do not let us, by side devices,
interfere with matters that we should leave to the management of the states.
Mr. SYMON (South Australia).-The honorable member (Mr. Howe) is under a very
grave misapprehension, not only as to my views, but also as to the real issue before the
20 committee. The issue before the committee is not whether we should impose a tax upon
absentees.
Mr. HOWE.-I understand that.
Mr. SYMON.-Nor is it whether we should repeal the inefficient absentee tax. existing in
South Australia. The issue is whether we are to destroy the autonomy of the states in
25 certain respects. I am, and always have been, utterly opposed to absentee taxation, and the
views which I expressed were brought out by an illustration which was used to show the
effect of the clause. The honorable and learned member (Mr. Wise) made use of two
illustrations, in dealing with which I merely pointed out that there was no earthly reason
why the states should not have power to deal with these matters. I never suggested any
30 divergence from the views of my honorable friend (Mr. Howe), and I am glad that he is
with me in thinking that this useless absentee tax should be swept away.
Mr. OCONNOR (New South Wales).-I rise for the purpose of pointing out the position
in which we stand, and to express the hope that, having discussed this matter so fully, we
may soon come to a division. The honorable and learned member (Mr. Wise) has proposed
35 an amendment which, if carried, will involve the declaration that the citizens of each state
are citizens of the Commonwealth.
END QUOTE
as this right is “EMBEDDED” in the unwritten part of the Constitution!

40
END QUOTE 060309
.
QUOTE 060311
Mr Michael Kirby 11-3-2006
Sydney, NSW 2000 Re; Constitutional issues, etc.
Emailed to; JSaleh@hcourt.gov.au, sdca58fd.039@cbr-nw6-fp.hcourt.gov.au

Sir,
When I read the judgment of HIGH COURT OF AUSTRALIA - GENERAL DIVISION,
ALLDERS INTERNATIONAL PTY LTD v COMMISSIONER OF STATE REVENUE,
5 Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ, 14 November 1996 –
Canberra somehow it seemed to me that the judgment by yourself and two other judges failed to
address certain relevant issues. After some search on the Internet I then came across the
judgment of SUPREME COURT OF VICTORIA, ALLDERS INTERNATIONAL PTY LTD
v COMMISSIONER OF STATE REVENUE (VIC), Harper J, 26 April 1995 – Melbourne,
10 and noted that His Honour in fact had canvassed the very issues I detected had not been
addressed by yourself.
Over recent times, mainly for the past 2 years or so, I seem to be locked out of the High Court of
Australia website, as to research past judgments, and so have to find other ways to get the same
information or have others getting it of the High Court of Australia website and then forward it to
15 me. I have previously already filed a formal complaint via the Victorian Government webmaster,
and while it did immediately relief the block out for about 2 weeks, soon thereafter I was again
denied access. I consider this a very serious issue, that seemingly because I am exposing High
Court of Australia handing down ill conceived judgments somehow this appears to me to have
resulted that I am blocked out of accessing High Court of Australia website to download
20 judgments. As such, while it makes it more troublesome for me to expose what is wrong with
judgments handed down, I for one do not believe that any judge ought to have some pride in this
kind of tactic. After all, judges should accept that fair and proper criticism is not only permissible
but indeed required to keep the judiciary on their toes.
It is clear that the Constitution Convention (Australasian Federal Convention) was required to
25 provide a Constitution and that the following High Court of Australia ruling indicates;
WATSON v_ LEE (1979) 144 CLR 374;( JUDGE3 STEPHEN J.)
QUOTE
As Scott L.J. said in Blackpool Corporation v. Locker (1948) 1 KB 349, at
30 p
361 , speaking there of sub-delegated legislation, "there is one quite general
question . . . of supreme importance to the continuance of the rule of law
under the British constitution, namely, the right of the public affected to
know what that law is". The maxim that ignorance of the law is no excuse forms the
35 "working hypothesis on which the rule of law rests in British democracy" but to
operate it requires that "the whole of our law, written or unwritten, is accessible to
the public - in the sense, of course, that at any rate its legal advisers have access to it at
any moment, as of right".
END QUOTE
40 Again;
QUOTE
it requires that "the whole of our law, written or unwritten, is
accessible to the public - in the sense, of course,
END QUOTE
45 As such, I view, the High Court of Australia ought to , so to say, put its money where its mouth
is and ensure that I have unlimited access to what is available on its website to the general public.
But, as I experienced in litigation before this Court, it has one rule in criticising courts below (on
appeal) but it has another rule when it comes to enforce the same principles in its own court.
Then it is utterly disorganised and lacks any transparency and fair and proper procedures. In my
50 view it conduct is deplorable and worse at times then the very courts it dares to criticise about
their conduct.
Ambard v Att Gen for Trinidad and Tabaco (1939) AC 322 at 335
QUOTE
“The basic of the right to fair comment is the Right
of Freedom of speech and the inalienable right of
5 everyone to comment fairly upon matters of public
importance.”
END QUOTE
(1) No wrong committed in criticism of administration of justice:
LORD ATKIN in AMBARD v ATTORNEY-GENERAL for TRINIDAD and TABAGO
10 (1936) A.C. 332, at 335
QUOTE
“But whether the authority and position or an individual judge, or the due administration of
justice, is concerned, no wrong is committed by any member of the public who exercises
the ordinary right of criticising, in good faith, in private or public, the public act done
15 in the seat of justice. The path of criticism is a public way, the wrong headed are permitted
to err therein: provided that members of the public abstain from imputing improper motives
to those taking part in the administration of justice, and are genuinely exercising a right of
criticism, and not acting in malice or attempting to impair the administration of justice, they
are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and
20 respectful, even though outspoken, comments of ordinary man”
END QUOTE
(2) The right for the public to be informed about the judicial process being properly applied or
acts:
THE COMMENTS OF SIR JAMES MARTIN C.J., IN THE MATTER “THE EVENING
25 NEWS” (1880) N.S.W. LR 211 AT 239.:
QUOTE
“The right of the public to canvass fairly and honestly what takes place here cannot be
disputed. Our practice of sitting here with open doors and transacting our judicial
functions as we do, always in the broad light of day, would be shown of some of its value
30 if the public opinion respecting our proceedings were at all times to be rigidly
suppressed. We claim no immunity from fair, even though it be mistaken criticism.”
QUOTE
.
(3) As to value of criticism, keeping judge subject to rules and principles of honour and justice;
35 (a) R v FOSTER (1937) St. E Qd 368
(b) Re WASEMAN (1969) N.Z.L.R. 55, 58-59
(c) Re BOROVSKI (1971) 19 D.L.R. (34) 537
(d) SOLICITOR-GENERAL v RADIO AVON LTD (1978) 1 N.Z.L.R. 225, at 230-31
40
Ambard v Att Gen for Trinidad and Tabaco (1939) AC 322 at 335
QUOTE
“The basic of the right to fair comment is the Right of Freedom of speech and the
inalienable right of everyone to comment fairly upon matters of public importance.”
45 END QUOTE
The term “subject to the provisions” was used ample of times by the Delegates (the Framers of
the Constitution) at least on 31 different days and as such a term that can be easily understood
what they intended as to the meaning of “subject to the provisions”.
50
With the application of Section 52(1) the wording “subject to the constitution” precisely was
meaning that, and not that somehow the Commonwealth can create some tax heaven for itself to
be excluded from taxation. The meaning of “subject to the constitution” must be taken as
having the same /simular meaning as used in Section 10 of the Constitution.
5
QUOTE Sir SAMUEL GRIFFITH:
Of course it is necessary for the purposes of the commonwealth that it should have the
control over all means of communication. Another provision to which I desire to call
10 special attention is No. 30, which reads thus:
The exercise within the commonwealth, at the request or with the concurrence of the
parliaments of all the states concerned, of any legislative powers with respect to the affairs
of the territory of the commonwealth, or any part of it, which can at the date of the
establishment of this constitution be exercised only by the Parliament of the United
15 Kingdom or by the Federal Council of Australasia, but always subject to the provisions
of this constitution.
END QUOTE
The usage of “but always subject to the provisions of this constitution.” or “subject to this
20 constitution” is to be deemed interchangeable without a different meaning.
I have no doubt that the usage of “subject to this constitution” included provisions which were
relevant in Section 51, including subsection (i) and (ii) for example, it would indeed be a total
absurdity if subsection 116 was not applicable to the Commonwealth in its territories, and it
could dictate religion in an airport terminal that was still part of a State.
25 Actually, while the states retained their powers to legislate as to religion, Section 116 specifically
excludes this to the Commonwealth. If Section 52 were to apply differently, that the “exclusion”
of section 52 means it can ignore Section 116 then the whole meaning of Section 116 in regard of
“and no religious test shall be required as a qualification for any office or public trust
under the Commonwealth.”
30 Section 122 gives the Commonwealth powers to make laws “for the government of any
territories” but Section 52(i) clearly reduces this powers to be (subject to this constitution”, and
this means subject to Section 116 also.
To hold that Section 116 is not applicable to Section 52 would make the part “and no religious
test shall be required as a qualification for any office or public trust under the
35 Commonwealth.” Of Section 116 nonsensical, in that it was obvious to the Framers that about
all or most public servants of the Commonwealth would have their living quarters within
Commonwealth territories. Indeed, the Framers discussed the fact that other then the seat of the
Parliament lend would be leased out to people living there.
To argue that the Commonwealth is not bound by other parts of the Constitution would mean
40 that effectively the Commonwealth could ignore Section 116 and dictate in Commonwealth
offices held in proprietary of a State that anyone entering a post office had to follow certain
religious practices. This kind of a nonsense situation would serve any fanatical religious sect that
may come to power in time to come and then use the very High Court of Australia judgments to
its advantage in such manner.
45 It could effectively turn this country into some fanatic religious nation, circumventing Section
116 by arguing that it is entitled to dictate that no person t can sit in Parliament unless being a
member of their religion. Considering the absurd decision in Sykes v Cleary, where the High
Court of Australia took out of context what was stated, and the case of Sue v Hill, where again
the High court of Australia ignored to appropriately interpret the INTENTIONS of the Framers,
as much as with the 1982 Wilson J judgment about funding of religious school, then if I were of
5 some extreme religious sect then if I had power I could use all those High Court of Australia
judgments to not only kick out Members of Parliament for not being members but have them all
imprisoned and turn this nation into a religious zealot dictating who shall or shall not on religious
grounds enter Commonwealth territory. Meaning, anyone elected but not being of the religion
will be denied to enter Commonwealth territory and by this his/her seat be declared vacant for
10 failing to attend.
One must not ignore the horrific consequences that could follow if “subject to this constitution”
was ignored to be applied to what else is stated in the Constitution.
It would also be absurd to argue that the Commonwealth somehow could ignore Section 99 by
giving Victoria, say, a tax free area where businesses could operate from leasing commonwealth
15 held land as proprietor, and by not having to pay taxes otherwise applicable in Victoria could
have an improper advantage to commence from that would wipe out also the “trade and
commerce” to be equal through the nation. It could also then ignore Section 117 as if this does
not apply to the Commonwealth held territories. Clearly, this is an utmost stupidity of argument
to be stated as the Commonwealth is derived from the States, and as such where any
20 constitutional provision relates to a State then it must also be held to apply to commonwealth
held territory for so far this is applicable, such as with telecommunication, postal services,
taxation, etc.
My view is that the MABO decision appears to show judicial bias, which I view is that as a
alleged homosexual you seek to make a case for minority groups. Subsection 51(xxvi) was never
25 intended to operate for minority groups and the con-job 1967 referendum neither presented this
to the general community (the electors) to vote for a transformation of the application of the
entire Section. Hence, the amendment must be interpreted in that Aboriginals now as like other
coloured races would loose their citizenship (not being nationality) and so their franchise the
moment any special legislation was passed within that amended subsection 51(xxvi).
30 I perceived comments about the Framers of the Constitution having been discriminatory against
Aboriginals to be a fiction of the imagination of the judges claiming so, as any FAIR MINDED
PERSON who had taken the time to research the Debates as I did, so extensively, would have
been aware that their general consensus was that Aboriginals were equal to any other natural
born Australian in the Federal provisions, and it was upon the States to provide them with State
35 franchise. Once a State had provided an Aboriginal with franchise then constitutionally nothing
was there to prevent the Aboriginal to exercise his/her franchise also in the federal arena.
The quotations below also include what unlike the MABO judgment, Section 127 was not
intended to discriminate against Aboriginals but rather was in regard of the quota to avoid States
with large Aboriginal populations being considerably financially burdened in the first years of
40 Federation.
As stated below;
QUOTE
The last comments clearly underlines that any race subject to special laws within
Subsection 51(xxvi) loses their rights of franchise.
45 Now, any proposal to have homosexuals being dealt with under this “race” provision
would in fact not only be an absurdity, as Subsection 51(xxvi) was intended to relate to
coloured races, but more over, would remove the right of homosexuals to have
franchise and by this neither could be in Parliament or serve as a judicial officer in a court!
END QUOTE
And
QUOTE
It ought to be clear that there was never any intentions that somehow a person trading on
5 Commonwealth controlled property could by this avoid paying taxes and duties.
Indeed, it would be a breach of Subsection 51(ii) if it were to apply different regime versus
that in a State.
The real issue is that the Commonwealth properties are owned by the States, and that when
there is a reference to States, then it includes any territory or property held by them in
10 conjunction by all States. The usage of “subject to this constitution” in Section 52 cannot
be used in a different context then what is used in Section 10 and must be interpreted to its
meanings as expressed by the Framers of the Constitution.
END QUOTE
15 Likewise the “embroyo state” (quisi State) being a Territory it cannot have voting rights in a
Senate where it is a House of the States.
As the Framers of the Constitution made clear, laws by the Commonwealth must be for the
whole of the Commonwealth.
QUOTE Mr. ISAACS.-
An income tax or a property tax raised under any federal law must be uniform
"throughout the Commonwealth."
END QUOTE
25
If Section 52(1) was to exclude commonwealth properties from the normal taxes otherwise
applied to others then no longer it is “throughout the commonwealth”.
Section 52(1) was never intended to operate as such.
Indeed, land that was acquired by the Commonwealth but not as sovereign but as proprietor, such
30 as with Melbourne (Tullemarine) airports it was clear that from onset it was intended that State
laws regarding taxation (being it licences, etc) would apply. the operation of Melbourne
(Tullemarine) Airport as an Airport itself is not hampered by airport facilities.
I still like to know where is the constitutional powers in the first place for the Commonwealth of
35 Australia to run airports?
The recent expansion of Melbourne (Tullemarine) Airport opened by Mr Brumby, a Minister of
the Victorian government was in my view appropriate, as after all, it is and remains Victorian
soil. The Framers of the constitution never even contemplated. For so far I can detect, to have
40 airports, let alone could have provided for this. The fact that the Commonwealth of Australia has
constitutional powers in Subsection 51(i) in regard of trade and commerce does not mean it then
can start up whatever business it likes, including running an airport. Simply, it can purchase land
as a proprietor and for the purpose of exercising constitutional powers have customs operating,
but anything not strictly within constitutional powers do not come within the exclusion zone.
45 After all, if people working in the Duty Free stores are in fact employed by some business in the
State of Victoria, it would be absurd if then nevertheless they can be excused of paying State
payroll tax because they are actually working on the Airport.
As I understood it, there was once an issue with Australian Post delivery not having to follow
State laws. This is sheer and utter nonsense. In my view it only underlines how ill trained the
50 judges were who handed down such a judgment. Any Commonwealth officer must abide to
relevant State laws even if performing a Commonwealth function. After all, as the Framers of the
Constitution made clear even Commonwealth law enforcement could be done only through the
State Courts and State police!
If Post delivery personnel can disregard State laws then they can exceed speed limits as much as
they like and drive their delivery vehicles on footpaths and be free from prosecution. In my view
the judges who decided that case in such manner to place Australian Post above State laws only
were complete idiots.
5
For years I have made known that what we need is an OFFICE OF THE GUARDIAN, a
constitutional council, that advised the Government, the people, the Parliament and the Courts
about constitutional powers and limitations. Then judges at least can fall back on getting some
sound and sensible advice of people who have their job to research matters.
10
As for the argument that overseas certain airports provide duty-free or other store facilities for
travellers hardly could have any impact to what our constitution stands for. Our Constitution is
designed by Australians for Australians.
15 The same with where in the past the Commonwealth used to have its own shipping line which I
view was unconstitutional also.
Likewise, for the Commonwealth now to lease out land to be used, WOOMERA, to be used by
foreign nations to do testing and this by a lease to BEA.
20 The Framers made clear that property could only be acquired for the sole purpose of what is
allowed by constitutional provisions. Duty free shops never existed at the time of the creation of
the constitution and should be no part of the business of the Commonwealth. To allow this would
in effect mean that the High Court of Australia is going beyond its own constitutional powers
where it is bound to determine the INTENTIONS of the Framers of the Constitution as to the
25 application of constitutional provisions and limitations.
Hansard 17-3-1898 Constitutional Convention Debates (Australasian Federal Convention)
QUOTE Mr. DEAKIN.-
In this Constitution, although much is written much remains unwritten
END QUOTE
30
In my view, Commonwealth functions, even if airports were to be held within constitutional
powers, it cannot expand it into duty-free stores, perhaps in the future casino’s, hotel
accommodations, etc.
35 Within the A.C.T. the difference is that the Commonwealth holds that as sovereign and as such
has legislative powers, but it cannot do so with land it holds as proprietor and the state never
intended to hand over State taxation rights.
Previously, after I wrote to Mr John Howard that the Commonwealth could not sell land held at
40 POINT NEPEAN to private investors without continue its own law enforcement, building
regulations, etc, the commonwealth aborted to sell it. As I made clear then, it could only sell the
land back to the State of Victoria as to reinstate all State legislative powers. The Commonwealth
subsequently, instead of wanting to sell the land for 500 million dollars ended up paying the
State of Victoria 5 million dollars for a clean up.
45 As I had explained, all State legislative powers had been extinguished in POINT NEPEAN
when it was transferred into Commonwealth ownership at federation and therefore, unless the
land was sold back or given back to the State of Victorian to reinstate its legislative powers
Lets have a further look at taxation;
*
50 Customs and excise, and bounties, but so that duties of customs and excise, and
bounties shall be uniform throughout the Commonwealth
*
There is nothing in this clause which will give the federal tax-gatherer any priority
over the state tax-gatherer.
55 *
In no part of this clause is priority given to the federal government in the matter of the right of
levy.
Consider the following;

5 QUOTE
The very principle of the Federal Constitution is this:
that the Constitution is above both Houses of Parliament.
END QUOTE
As such, Parliament cannot override constitutional provisions and limitations, and for so far any
10 legislation that is beyond constitutional powers it will be ULTRA VIRES and as such not
legally enforceable.
QUOTE
What is really wanted is to prevent a discrimination between
citizens of the Commonwealth in the same circumstances.
15 END QUOTE
While the Commonwealth of Australia, so to say, has a free reign on imposing direct taxation, it
is however limited by the fact that all laws enacted by the Federal Parliament (actually they are
passed as Bills by the Federal Parliament and do not become law until Royal Assent is has been
given and they are published, as to be available to the general community) that all laws enacted
20 must be “UNIFORM” throughout the Commonwealth of Australia.
Tax deductions can be deemed to be bounties and as such must be deemed to operate in the same
manner.
QUOTE
25 The reductions may be on a sliding scale, but they must always be uniform.
END QUOTE
And
QUOTE
30 necessary for the Federal Parliament to make them commence at a certain amount at once.
fix the uniform tariff, and if any reductions made are on a sliding scale great injury
will be avoided.
35 END QUOTE
QUOTE Mr. BARTON.-
40 But it is a fair corollary to the provision for dealing with the revenue for the first five years
conclusion that, on the whole, it will be a useful and beneficial provision.
END QUOTE
And
45 QUOTE
excise such as it may determine, which insures that these duties of customs and excise
would represent something like the average opinion of the Commonwealth-that power, and
QUOTE
.
QUOTE
on any goods exported from one state to another;
10 END QUOTE
QUOTE
Taxation; but so that all taxation shall he uniform throughout the Commonwealth, and that
15 no tax or duty shall be imposed on any goods passing from one state to another.
END QUOTE
And
QUOTE
20 the following words be substituted:-"but not so as to discriminate between states or parts of
END QUOTE
And
QUOTE
25 That all the words after the first word "taxation" in the second sub-section be omitted,
or parts of states, or between persons or things passing from one state to another."
30
END QUOTE
Then, on 16-3-1898 is appears to have been amended, without further discussion but approved
off by voting, from;
35
Taxation; but not so as to discriminate between states or parts of states, or between persons
To
Taxation; but not so as to discriminate between states or parts of states
40
It was claimed that in substance there was no change. Hence, both versions ought to be taken as
having the same meaning.
This is a critical issue as the wording;
45 “or between persons or things from one state or another”
neither one person having a tax free income, partly or wholly while another having the same
income is required to pay more tax.
50
What must be noticed is that while the wording in subsection 51(ii) regarding taxation did alter,
the principle that the State retained its rights to raise taxation was maintained throughout as
statement from the 1891 (see 31-3-1891) and 1898 (11-3-1898) Constitution Conventions
clearly underlines, and that the change from 11-3-1898 to the version of 16-3-1898 was not an
55 amendment per se but rather held to be to improve the clause without a change in substance,
unless it was specifically stated otherwise, as was applicable with clauses 9 and 10 relating to
time and places.
Further, in regard of tariffs, customs, duties, taxation, etc it was made clear that in regard of the
Commonwealth of Australia it was bound to have charges uniform throughout the
5 Commonwealth, albeit uniformity did not mean that a sliding scale could be used. As such a
sliding scale that was apply throughout the Commonwealth, such as the sliding scale of
percentage payable on income tax is within constitutional powers and limits. However, having
people exempt from taxation by special deals is beyond constitutional powers if such exemption
is not applied on a uniform bases throughout the Commonwealth.
10 If the argument of the High Court of Australia were to be accepted that the Commonwealth could
have its own kind of charges, because it has within Section 52(i) EXCLUSIVE legislative
powers then it could simply turn commonwealth property in tax heavens. Clearly, taxation
stipulated in Section 51(ii) remains applicable and for this the provision in Section 52 “subject
to this constitution” which means every relevant Section that can be applied.

QUOTE
53. The Parliament shall, also, subject to the provisions of this Constitution, have
exclusive power to make laws for the peace, order, and good government of the
Commonwealth with respect to the following matters:-
20 END QUOTE
QUOTE Mr. OCONNOR (New South Wales).-

Until the Parliament otherwise provides, but subject to this Constitution, the laws in
25 force in each state for the time being relating to elections for the more numerous House of
the Parliament of the state shall, as nearly As practicable, apply to elections in the state of
senators and of members of the House of Representatives.
END QUOTE
And
30 QUOTE
Mr. BARTON (New South Wales).-I move-
That the following new clause follow clause 44A:-
Until the Parliament otherwise provides, but subject to this Constitution, the laws in
force in each state for the time being relating to elections for the more numerous House of
35 the Parliament of the state shall, as nearly as practicable, apply to elections in the state of
senators and of members of the House of Representatives.
This proposed new clause is to be substituted for the last portion of clause 10, and for the
corresponding clause dealing with the House of Representatives. These are clauses which
prescribe that until the Parliament makes laws on the subject the laws in force in each state
40 relating to certain electoral matters shall as nearly as practicable apply to elections in that
state of senators and of members of the House of Representatives. This is a substituted
provision which deals with both the elections to the Senate and the elections to the House
of Representatives, and practically puts into one clause the work of two. It shortens up the
provisions by speaking of the laws relating to elections instead of enumerating certain laws
which are parts of the electoral law, and it guards the change by inserting the words
"subject to the Constitution," and saying the application shall be as nearly as
5 practicable. It seems to me to be a beneficial shortening of the matter, and I propose that it
should take the place of the two clauses which have been struck out.
The new clause was agreed to.
END QUOTE

10 QUOTE
Mr. BAKER: I move as an amendment:
That after the word "functions," line 7, the following words be inserted:-"as are contained in schedule B
hereto, and such other powers and functions not inconsistent there-with."
It will be seen that we are deliberately making the instructions given to her Majesty's representative part of
15 our Constitution.
Mr. CLARK: No; subject to the Constitution!
Mr. BAKER: I admit that no instructions can be given which are inconsistent with the constitution,
but instructions can be given which are additional to the constitution, and which cover grounds not mentioned
in the constitution.
20 Sir SAMUEL GRIFFITH: How?
Mr. BAKER: Why, under the provisions of an act a despatch was sent from the Government of
Queensland, I think it was, to England, in which it was stated that the royal instructions to the governor are
part of the constitutional law of the colony. I believe that is undoubted, and we are affirming that in this
particular clause. Why should we go to Downing street for any part of our constitution which we can put into
25 this act?
Mr. DEAKIN: What do you propose to put in, then?
Mr. BAKER: Well, I am not prepared to put in the whole of the powers and functions which are to be
expressly set forth as having to be performed by the Governor; but I want to affirm the proposition that they
shall be, as far as possible, contained in our constitution. Here is one matter to which I will allude. In 1878,
30 after the Dominion of Canada had been formed, they objected to the instructions given to the Governor-
General of Canada. They said that they did not consider that he was sufficiently amenable to his advisers, that
a good many of the matters upon which he had instructions from the home government were matters upon
which he ought to have followed the advice of his constitutional advisers, and Mr. Blake, who was the
Minister of Justice, wrote several able despatches on the matter, and proceeded to England, I believe, twice.
35 He certainly proceeded to England once, and after a great deal of trouble, and a great deal of friction the
home Government gave way, and they erased from the former instructions an immense number of
instructions which had formerly been contained in them. Among other things I will mention one matter
which, I think, certainly ought to be inserted in the schedule of this bill, and that is as to the manner in which
the governor-general is to exercise the prerogative of pardon. We know very well that, according to the
40 instructions now extant, which have never been altered, our colonial governors have the right of
exercising their own discretion; and we also know that whenever Downing-street has been appealed to
to uphold a governor in carrying out the powers which they say be ought to possess, they have shuffled
in the matter. In Canada it has been provided that the power of the prerogative of pardon is to be exercised
by the governor-general:
45 1st. As to capital cases, with the advice of the Privy Council.
2nd. As to other cases, with the advice of at least one of his ministers.

3rd. As to cases in which pardon or reprieve might directly affect the interests of the empire, or any country
or place beyond the jurisdiction of the Government of the Dominion, the Governor-General is, before
deciding, to "take those interests specially into his own personal consideration, in conjunction with such
advice as aforesaid."
5 [start page 575]
That is clearly laid down, I think. The last portion-the third subdivision-is quite proper, because he acts in
matters relating to the interests of the empire as an officer of the Imperial Government; but in all other cases
it is expressly laid down that be is to act on the advice of his responsible ministers. That is only one point. I
should like to see in the schedule to this bill all the powers and functions of the governor-general which it is
10 possible to define and to reduce to writing, so defined. I do not wish that we should have to go to Downing-
street from time to time to find out what the powers of our constitution are.
Mr. DEAKIN: The first question that arises might be as to whether this is the best means of
accomplishing, the end which the hon. member has in his mind. If the hon. member proposes to define the
powers of the governor-general so far as they can be defined, I am cordially with him. The matter, indeed,
15 received some attention at the hands of the committee, though the question as to the method of definition to
be adopted was felt to be surrounded with difficulty. The solution which I wish to suggest to the hon. member
who has now moved his amendment is that it would be better to embody in the bill itself anything that we
have to say on this subject; and for my own part, I cannot conceive that it will be necessary to do anything
more-if I may repeat what I was urging a few minutes ago in connection with another subject-than to insert in
20 this bill, and to state on the very face of the constitution, that the governor shall invariably act on the advice
of his responsible ministers, that every act of his shall be countersigned by a responsible minister who shall
make himself responsible by his signature for that particular act. That will apply even to circumstances under
which a governor-general changes his ministers.
Sir SAMUEL GRIFFITH: He has got to turn out the first lot on nobody's advice!
25 Mr. DEAKIN: Exactly; but, as the hon. member is perfectly well aware, having gone through the process
so often himself, the incoming ministry invariably take that responsibility upon their shoulders.
Sir SAMUEL GRIFFITH: That is not acting on advice, though!
Mr. PLAYFORD: It is acting on his own responsibility!
Mr. DEAKIN: Not at all. However, the question is one of phraseology. If we are agreed on the principle,
30 we can easily embody it in language; and I would suggest to the hon. member, Mr. Baker, that it would meet
all the purposes of the schedule which he proposes, and do away with what seems to be an indirect method of
dealing with the matter, to say directly that the governor's powers shall be limited by the necessity on his part
of obtaining the signature of a responsible minister to every one of his acts.
END QUOTE

QUOTE
CHAPTER VI.-NEW STATES.
Clause 113-Any of the existing colonies o [name the existing colonies which have not adopted the
Constitution] may upon adopting this Constitution be admitted to the Commonwealth, and shall thereupon
40 become and be a State of the Commonwealth.
Sir GEORGE TURNER: This clause provides that any of the existing colonies may, upon adopting this
Constitution, be admitted to the Commonwealth, and shall thereupon become and be a State of the
Commonwealth. The next section provides for the admission of new States, with power to impose certain
conditions on their admission. Is it wise that we should allow any of the existing colonies to stand aside as
45 long as they like, for any number of years, and to ultimately come in, whether the colonies which have joined
like it or not, on exactly the same conditions? Surely it is not unreasonable to say to the existing colonies:
"You have a perfect right to join with us, to throw in your lot with us, participate in the advantages, share the
risks, make the losses we have to make jointly, make the enterprises we have to make jointly; but if you do
not wish to do that, if you desire to stand aloof and allow us to make this Federation, we must have some say

in it when you wish to join." I think that is fair and reasonable, and I should be glad if Mr. Barton will explain
why this unlimited right should be given to the existing colonies, and why the Federal Parliament should not
have the power to admit any existing colony on conditions which may be laid down.
Mr. DEAKIN: Something similar to clause 114?
5 Sir GEORGE TURNER: According to clause 114 new States may be admitted on terms which the
judgment of the Federal Parliament might fairly decide. Certain conditions ought to be imposed by the
Federal Parliament as representing the States which initiated the Federation, and which certainly ought to
have some say in it. I do not desire at the present moment to move an amendment because my hon. friend
may be able to give some good reason why this distinction should be drawn. If so I will be willing to fall in
10 with it.
Mr. BARTON: The reason of this provision is partly due to what is included in the United States
Constitution as follows:
No new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed
by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States
15 concerned as well as of the Congress.
That section is practically the same as we have placed in this Bill-sections 133 and 114 read together.
Section 113 provides a sort of locus poenitentiae that every existing colony may be allowed to come in when
it likes.
Sir GEORGE TURNER: At any time.
20 Mr. BARTON: Clause 114 allows the Commonwealth to make and impose conditions, as to the extent of
representation in either House of Parliament or otherwise, as it thinks fit. However we might read the parallel
provisions as they appear in the American Costitutions, as they appear here it does seem as if the existing
colonies not joining the Federation at first are entitled to come in under these provisions at any time, and that
only new States are made subject to conditions. I think that is the meaning of the clause.
25 Sir GEORGE TURNER: That is the intention.
Mr. BARTON: That is the intention. The motive of the clause is that we may offer a fair inducement to
those colonies which we want to join us to come in at the earliest moment. It is for this reason that every State
that does not join under this Constitution at first, as the rest of the Bill shows, is a colony. It is a State when it
joins. After this Commonwealth is formed any existing colony that joins will in a sense be a new State,
30 because the States will be the colonies which join at-first. That is why [start page 1008] this provision is
placed in this chapter, and I think it is as convenient a place for it as any other. We are offering, not a time,
but an opportunity to the other colonies which do not join with us at first, being existing colonies, to come in
and join, and we offer them an absence of the conditions that we would have to impose on new States if new
States had to be created. There may be difficulties existing as to the joining of other existing colonies which
35 will be smoothed over by a provision of this Sort. If you place them all on the same footing, and make
existing colonies, as well as those which are to be created hereafter, all liable to conditions, then, it seems to
me, that there may be a very great discouragement to any State., such as Queensland or Western Australia,
which might not decide at first, to join in the Commonwealth. But if you give them an opportunity, even for
an indefinite period, to join, you are really offering them the terms of this Constitution, which, if varied from,
40 would make it harder for them to come in.
Mr. HIGGINS: Is not this an inducement not to join now?
Mr. BARTON: I think not. The greatest advantage is to be gained by joining when the others join.
Mr. SYMON: Would you limit the time?
Mr. BARTON: No; and for this reason: This clause is not to be read with the Federal Enabling Act which
45 will be a spent Act within a short time. Then it might be argued that this clause did limit a certain time, but
that is not so. So it does not impose a definite period of time. But the Committee may think it is better to
leave the provision in its present state, leaving it to the Commonwealth, if the existing colonies do not come
in within a reasonable period, to fix a limit.
Mr. DEAKIN: That would mean an amendment of the Constitution. The clause as it stands is entirely one-
50 sided. It binds the outstanding colonies to nothing, but it does bind the colonies who federate to the
unconditional acceptance of a colony which has stood out as long as it has been to its interest to Stand out,
and enabling it to come in at its own will without the consent of the other States. I take it that at least the
consent of the Commonwealth should be necessary before any State should be able to join in this union.
Mr. WISE: If we begin that clause with the words " Until Parliament otherwise determines," would that
5 meet the difficulty?
Mr. DEAKIN: That would meet the difficulty I have just mentioned, and would certainly be a very great
improvement. It would be unreasonable, as Mr. Barton indicated, to expect that all the colonies about to join
can federate within the same month, or perhaps year. In the case of the United States more than twelve
months elapsed before all the colonies were brought into line. A certain time limit might perhaps be fixed, but
10 I do not know if, after all, the proposal that has been made is not better. It makes this, then, a less one - sided
arrangement, which now binds the Commonwealth and does not bind the States.
Mr. O'CONNOR: Is not this one of those things which would be better dealt with after the adjournment?
Mr. DEAKIN: I feel strongly that it is absolutely necessary to insert the words, "Until Parliament
otherwise determines." I think this is absolutely essential, for the present clause is obviously unfair on the
15 face of it. Supposing there was a great emergency and some of the colonies came together for a common
purpose-say for defence-and at great expense provided against risks. It might happen that some colony which
stood out at first would step in subsequently, not to share in the risk, but only in the profits.
Sir JOHN DOWNER: Why not strike out clause 113?
Mr. DOUGLAS: Would the hon. member allow me to suggest to add to the clause these words:
20 As may from time to time be declared.
[start page 1009]
Supposing one colony comes in this year and another colony comes in three years afterwards, you would
then have to make a calculation of the revenue, and the colony that was late in entering the Federation would
have to pay a sort of penalty fixed on a comparative financial basis.
25 Mr. DEAKIN: That would be best. The hon. member has put his finger upon a further difficulty. I
understand that a financial scheme has been drafted which is to be determined by calculations made for a
particular period; but these calculations will be null and void as far as the particular province coming in is
concerned. Having stood out it seeks to enter the Federation, so as to dislocate the whole financial system.
Mr. BARTON: Perhaps we had better see what the financial scheme is first, and postpone these clauses.
30 Mr. DOUGLAS: I would like to ask the Leader of the House how is a colony to be admitted, and what is
the proceeding to be gone through?
Mr. BARTON: It can only be done by Act of Parliament.
Mr. ISAACS: Whatever the financial scheme may be, I think we should deal with this clause in the way
suggested, and not postpone it, and I think the view taken by my hon. friend Mr. Wise is the correct one. We
35 may be able to incorporate the principle to which he alluded at a later period, by inserting, the words "upon
such conditions as Parliament may think fit," in a subsequent portion of the clause. Whatever may be the
financial scheme arranged, I think this should be done; for as the provision now stands it is offering a
premium to stand out from the Commonwealth-something like a mining speculator who holds aloof until he
sees which way things are going. We should all throw in our lot at once and take our chance, and not stand
40 out till there is an opportunity of coming in afterwards, when difficulties are over, and sharing in the profits. I
think we ought to deal with this question irrespective of what the financial scheme is.
Sir EDWARD BRADDON: I hope we shall safeguard the Commonwealth. I think some provision is
necessary to be taken against those colonies that are languid in the movement. We do not want to allow any
colony to lounge into the Federation on its own terms after the other colonies have borne the heat and burden
45 of the day and made things easy for it. I hope, amongst other stipulations-it is necessary to make some
stipulations-that one shall be that all of the colonies shall enter upon the same terms as those upon which we
enter, and that is by a referendum to the States. I understand Mr. Barton is going to postpone the clause, and I
think it is one that needs postponement until we know what the Financial Committee has been doing. If we

agree to some basis in connection with the Financial Committee's work, we may be able to make some
provision here to guard those in the van of the movement against those who are the laggers.
Mr. BARTON: I do not think it will be well to leave out clause 113 until we have made some alterations to
clause 114. I am a little exercised in my mind as to the meaning of certain words in the clause, and if the legal
5 members will give me their assistance I shall be glad. In clause 114 you will find these words:
The Parliament of the Commonwealth may make and impose such conditions as to the extent of
representation in either House of Parliament, or otherwise.
Mr. WISE: Strike them out.
Mr. BARTON: No, do not strike them out yet; I am a little exercised as to the meaning of the words:
10 As to the extent of the representation in either House of the Parliament, or otherwise.
Would they not exclude the Commonwealth from making provision, except as to representation?
Mr. WISE: You bad better strike out all the words after "conditions."
[start page 1010]
Mr. SYMON: Put in after "conditions" the word "including," and strike out "as to."
15 Mr. BARTON: I think I shall move:
That clause 113 be struck out,
I shall, if that is done, move amendments to the next clause, and make the one deal with the whole matter.
Clause 113 struck out.
Clause 114-The Parliament may from time to time establish and admit to the Commonwealth new
20 States, and may upon such establishment and admission make and impose such conditions, as to the
extent of representation in either House of the Parliament or otherwise, as it thinks fit.
Mr. BARTON: In the first line I move:
To insert after "from time to time" the words "admit to the Commonwealth any of the existing colonies and
may," and strike out "and admit to Commonwealth."
25 Then I shall adopt Mr. Symon's suggestion, and move to insert "include" and leave out the words "or
otherwise."
Mr. KINGSTON: I think you will want to make the words read:
And may upon such admission or establishment.
Sir JOHN DOWNER: You do not want the word "establishment."
30 Mr. BARTON: I would explain this for the consideration of the Convention, that you do want the word
"establishment" with regard to new States.
Mr. KINGSTON: You want both.
Mr. BARTON: Yes; I was explaining to Sir John Downer that we do. We are only dealing with the
continent and Tasmania, as far as we know at present. There may be such a thing as the division of
35 Western Australia and. Queensland, but apart from that any new State would have to be carved out of
the limits of the Commonwealth. That would consequently be matter for absolute establishment, as
new States could not be created any other way.
Mr. ISAACS: I do not know whether I caught the answer correctly, but I think Mr. Kingston wants the
word "admission" repeated.
40 Mr. BARTON: I move:

To insert after the word "time," where it occurs the second time, the words "admit, to the Commonwealth
any of the existing colonies of (name the existing colonies which have not adopted the Constitution) and may
from time to time.
5 Mr. BARTON: I move:
To strike out the words "establishment and admission," with the view of inserting the words "admission or
establishment. "
Mr. BARTON: I propose
10 In line 4 to insert before "conditions" the words "terms and."
Mr. BARTON: I propose:
To leave out the words "as to," just following "conditions," with a view to putting in their place the word
"including."
Mr. BARTON: I propose:
In the next line to strike out "or otherwise."
The CHAIRMAN: I will read the clause as amended:
20 The Parliament way from time to time admit to the Commonwealth any of the existing colonies [here name
the colonies which have not adopted the Constitution], and may from time to time establish now States, and
may upon such admission or establishment make and impose such terms and conditions, including the extent
of representation in either House of Parliament, as it thinks fit.
Sir EDWARD BRADDON: I think your grasp of this clause in its present condition shows your perfect
25 knowledge of the art of amendment in every possible way. It has been done in such a way that we have not
the scantiest idea of what it now provides.
Mr. DEAKIN: It is a mosaic.
Sir EDWARD BRADDON: Distinctly mosaic; but I think the majority of this Convention do not
know what it is. We have embodied everything and struck out everything.
30 Mr. DEAKIN Give up everything, and take back all."
Sir EDWARD BRADDON: I would [start page 1011] suggest that those who have not grasped this
volcanic amendment in the way in which our chairman has, should have this clause placed before them
in print, so that they may see what it is.
Mr. DEAKIN: Have it set to slow music. (Laughter.)
35 The CHAIRMAN: Perhaps Sir Edward Braddon will take my assurance that it is all right. (Laughter.)
Mr. DOBSON: I confess I was very much disappointed with Sir Edward Braddon's last utterance. I
thought he would be the fool to rush in where the angels fear to tread.
Mr. DEAKIN: Disappointed that he was not the fool?
Mr. DOBSON: I thought he would say that here is a departure from equal representation in the Senate. I
40 can see why the clause should stand as it is to the extent of equal representation in the House of
Representatives, but not as to equal representation in this Senate. It can hardly arise that Norfolk Island
would come in as a separate State, and few of us would like to give Norfolk Island six senators. Here we
are making a departure as regards new States, inasmuch as we are giving the Federal Parliament
power to alter that which is supposed to be the very foundation of the federal edifice we are rearing.
Mr. DOUGLAS: Before we pass this I think, with Sir Edward Braddon, we should see this clause in print.
5 Mr. DEAKIN: You can have it recommitted if necessary.
Mr. DOUGLAS: It seems to me that the wording is entirely incorrect.
Sir GRAHAM BERRY: I would ask Mr. Barton's attention to clause 23, which we have already passed.
We have provided there:
Each of the existing colonies of Now South Wales, Now Zealand, Queensland, Tasmania, Victoria, and
10 Western Australia, and the province of South Australia shall be entitled to five representatives at the least.
That seems to conflict with the clause we are now considering.
Mr. BARTON: No. That clause is part of the Constitution dealing with the existing colonies which become
States, and the Commonwealth would not under the clause we have just dealt with be deprived of making
terms and conditions which give more than five representatives if the States were entitled to more. Clause 23
15 deals only with the minimum number of representatives.
Mr. GLYNN: This clause will be part of the Constitution, and will give the power to change the
representation. I am afraid we made a mistake in leaving out clause 113. There Should have been a
distinction between existing colonies and new States. If Queensland does not come in at once and wants to
come in later on she will have to make application without stating the terms on which she wishes to be
20 admitted. The Parliament can state the terms, and it will be out of Queensland's power to revise them, and
it may then be difficult for Queensland to come in.
Sir EDWARD BRADDON: I should like Mr. Barton to tell us what this really means.
Mr. BARTON: If the hon. member will look at section 113 he will see within brackets:
[name the existing colonies which have not adopted the Constitution.]
25 Sir GRAHAM BERRY: How can that possibly be done? None of the colonies have adopted the
Constitution.
Mr. BARTON: That of course can only be done when the colonies which have adopted the Constitution
are known, then their names could be filled in when application is made to the Imperial Parliament. Bearing
that in mind when the imperial Parliament has legislated, clause 114 reads:
30 The Parliament may from time to time admit to the Commonwealth any of the existing States, and may from
time to time establish new States, and may upon such admission or establishment make and impose such
terms and conditions, includ- [start page 1012] ing the extent of representation in either House of of
Parliament as it thinks fit.
Sir EDWARD BRADDON: How can the representation of either House of Parliament be stated? We have
35 agreed to the representation of every State being in the ratio of two to one, and how is the Federal Parliament
to arrange a representation which may be, according to this clause as now amended, the representation of
one House only, and that possibly the House of Representatives? That is the point Mr. Dobson referred to,
and which concerns us of the smaller States as it affects representation of the smaller States when there may
be additions to the Commonwealth by new States.
40 Mr. DEAKIN: The answer is that no such bargain can be made without the consent of the smaller States,
through the House in which they have the majority.
Mr. WISE: And subject to the Constitution.
Mr. O'CONNOR: And they could not come in unless these States like.
Sir EDWARD BRADDON. The smaller States cannot ensure a majority.
45 Mr. DEAKIN: They have a majority in the Senate from the commencement.
Clause, as amended, agreed to.
Clause 115-The Parliament may make such laws as it thinks fit for the provisional administration and
government of any territory surrendered by any State to and accepted by the Commonwealth, or any territory
placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the
5 Commonwealth, and may allow the representation of such territory in either House of the Parliament to
the extent and on the terms which it thinks fit.
Mr. WISE: I move:
That the following words be added at the end of the clause:
No federal territory shall be leased for a longer period than fifty years, or alienated in fee simple,
10 except upon payment of a perpetual rent, which shall be subject to periodic appraisement, upon the
unimproved value of the land so alienated at intervals of not more than ten years.
Mr. DEAKIN: Is "territory" the best word to use there? Territory here is given a peculiar significance in
the American sense-a great area under a Government which is not a State.
Mr. WISE: "Lands," then, I shall make it:
15 No lands, the property of the Commonwealth.
I do not know what reception this amendment will meet with in this Convention, but I am satisfied that there
is no resolution that has been submitted to it which will touch the interests of the people outside more nearly
than this.
Mr. GLYNN: Hear, hear.
20 Mr. WISE: It is desirable, if we wish to commend this Constitution to the approbation of the democratic
multitude, whose votes it must receive, that we should indicate in the clearest possible manner that those
principles which they have most at heart are conserved by this Constitution. No one need imagine that I am
going now to enter upon any discussion of the question of land values taxation. It would be out of place
altogether in an assembly of this kind to assume that there is any representative here who has not fully
25 considered that question from every point of view. All I desire is in a definite form to bring up for acceptance
or rejection by this Convention a proposal as to the future treatment of the lands which may ultimately belong
to the Commonwealth. And in the amendment I have proposed I endeavor to avoid for all time to come-as we
hope we are framing a Constitution now that will last for many generations-all the evils which have
attended the reckless alienation of territory since the foundation of these colonies-
30 Mr. GLYNN: Hear, hear.
Mr. WISE: And to secure for the Commonwealth the growing and permanent source of revenue from that
State-earned increment in the value of land which comes silently from the mere accretion of population, and
from the exercise of the powers of Government. With these ends in view I have drawn an amendment which
comprises two [start page 1013] matters; the first limits the tenure of leasehold to a period of not more
35 than fifty years, and the second provides that if alienation is allowed at all, it shall only be allowed
upon such terms as will secure that a fair portion of the unearned increment of the land shall go back
to the people who make that value by popular exertion. And so I propose my amendment. I think the
Convention will admit I have faithfully fulfilled my promise not to enter into a large and discursive
discussion. I hope, therefore, that those opposed to this will follow my example in this respect, and not enter
40 into a discussion, which in this assemblage, at all events, would be largely academic. If this Convention
rejects the amendment, I may say that those who support it will try and persuade the local Parliaments to
insist on its insertion in the Bill, and if I may prophesy-though I know it is dangerous to prophesy, and in
nothing more so than in politics-shall prophecy that if this amendment is rejected now every Parliament in
Australia will insist on its being adopted, and that we shall have to pass it in the Convention next time.
45 Mr. FRASER: You do not know the Parliaments.
Mr. BARTON: I would only suggest with regard to my hon. friend's amendment that it-
Mr. FRASER: He does not mean it. He is only joking.
Mr. WISE: You will find it is no joke.

Mr. BARTON: I have only to say this. If after the establishment of the Commonwealth the people are land
nationalisers they will do what my hon. friend suggests. If they are not land nationalisers we have no business
to make them so against their will.
Sir EDWARD BRADDON: I think there is a necessity for amending line 6, It states that the
5 Commonwealth may allow the representation of such territory in either House of the Parliament to the
extent and on the terms which it thinks fit. I would ask why it should be left to the Federal Parliament to
decide? The representation in this instance is to be in both Houses, not in one House or in the other. Why
should we not preserve in this question the ratio of representation which has been fixed already in regard to
our representation generally?
10 Mr. BARTON: We have passed that clause long ago.
Sir EDWARD BRADDON: I am discussing clause 115.
Mr. BARTON: My hon. friend is speaking on clause 114.
Sir EDWARD BRADDON: My hon. friend does not know his own Bill.
Mr. BARTON: I thought you were harking back.
15 Sir EDWARD BRADDON: No. I am harking forward. I would suggest to my hon. friend that it is not
intended that there shall be any departure from the principle that we have bound ourselves to, and that the
difficulty here may be got over:
By striking out all words after "Parliament" in the twenty-second line and inserting "in accordance
with the ratio of representation provided in the Constitution."
20 I am not going to manifest that mistrust in the Federal Parliament which has been shown here
occasionally; still I think it is desirable that we should as far as possible safeguard ourselves against the
breach of that engagement which has been entered into in a previous part of this Bill. I will move to
test the matter the amendment which I have suggested.
The CHAIRMAN: Will Mr. Wise withdraw his amendment to allow this to be put?
25 Mr. WISE: Yes.
Leave given.
Mr. MCMILLAN: I think this is a very important matter, because I look forward with some hope that in
future under federal administration a large portion of this continent will have to be dealt with under peculiar
conditions. I do not think that [start page 1014] in regard to the administration of these territories, which are
30 very peculiar in themselves, we ought to bind the Federal Parliament. I would suggest to my hon. friend that
the matter might be dealt with in this way: instead of bringing in either Houses of Parliament allow of the
representation of such territory to the extent and on the terms it thinks fit, leaving it entirely open as to the
course to be adopted.
Mr. O'CONNOR: That is what the section provides.
35 Mr. MCMILLAN: So far as I can understand my hon. friend he wants to bring the territories practically
into line with the States, which, of course, would be a great mistake. There would be many experiments in
administration owing to the peculiar conditions of these territories, and we ought not to tie the Federal
Parliament under these circumstances.
Mr DEAKIN: I think my hon. friend Sir Edward Braddon somewhat mistakes the position. If the
40 United States plan is followed territorial delegates would simply be entitled to enter the House of
Representatives and speak there, but would not be permitted to vote. They are only agents. The
territories here would consist of parts of Australia in which there was merely a nominal population.
From them persons might be privileged to enter the House of Representatives in order to state their
wishes, but these persons could not take any other part in the proceedings.
45 Mr. BARTON: They are provisionally governed by the Commonwealth.
Sir EDWARD BRADDON: Representation should carry with it the right to vote.

Mr. DEAKIN: Under territorial representation if it follows the plan of the United States, as it
probably would, territorial representatives would be entitled to speak in the House of Representatives,
but not to vote. I think Sir Edward Braddon will see that his alarm is not well-grounded, and that whatever
determination is come to in regard to the representation of territories must be settled by both Houses. The
5 Senate will have an equal voice with the House of Representatives in determining what representation is to be
given, when it is to be given, and how.
Mr. BROWN: I hope that Sir Edward Braddon will not insist on this amendment. It appears to me that we
are again doing as we have been doing very frequently during the discussion of this Bill, namely, trying to put
into the Constitution things which ought to be dealt with hereafter by the Commonwealth. It is perfectly
10 plain that as regards any territory which may require to have representation in the Commonwealth,
Some special arrangement will have to be made such as that indicated by my hon. friend Mr. Deakin. To put
into this clause a condition that such territory can only be represented under the terms and conditions
to which the complete States are admitted will, I apprehend, be contrary to what the Convention has in
view.
15 Mr. BARTON: And prevent the Commonwealth from taking over any at all.
Mr. BROWN: In addition to that, it is showing a large amount of distrust of the wisdom of Parliament. We
shall all, through our representatives, have the opportunity of influencing decisions in the future Parliament
just as we have done here. Some hon. members occasionally regard this Commonwealth Parliament as a sort
of foreign and hostile body which will have to be watched, and concerning which all sorts of precautions will
20 have to be taken to prevent it from doing mischief. Having faith in the wisdom and capacity of the Federal
Parliament, we should not load the Constitution with these unnecessary details.
Mr. BARTON: I ask the hon. member not to insist upon his amendment, which refers to territories and not
to new States. It would be impossible for the Commonwealth ever to consent to the admission of
territories which might be sparsely populated, and which would, [start page 1015] according to the
25 hon. member's proposal, be entitled to six members in the Senate. Territories or districts which are
only in a primitive state of development are intended to be dealt with by a clause of this sort. They are
in a transition state, and they are governed by the Commonwealth until such time as the States have
reached a condition which would entitle them to representation in the Senate. Bryce says:
Besides these full members there are also eight territorial delegates, one from each of the territories, regions
30 in the West enjoying a species of self -government, but not yet formed into States. These delegates sit and
speak, but have no right to vote, being unrecognised by the Constitution. They are, in fact, merely persons
whom the House under a Statute admits to its floor and permits to address it
This Constitution is on a little more liberal basis than that in this respect: the Commonwealth in the
case of the secession of a territory which is cumbersome, gives power to allow the representation of it in
35 either House of Parliament under the terms which the Parliament thinks fit. Instead of the territories
being governed in a way that only entitles them to be represented as delegates there is power to give
them a certain degree of representation. It is quite as much as they can have the right to expect, and
this is a more liberal provision than is to be found in the American Constitution. I trust we shall not
have to divide on this.
40 Mr. DOUGLAS: Why should the words "either House of the Parliament" be there? What is required is to
strike out:
In either House of the Parliament to the extent and to insert:
And it shall be on such terms and conditions as the Parliament shall think fit.
Sir EDWARD BRADDON: I should not object to the clause so strenuously as I have done if it were
45 clearly shown that representation in this instance did not carry with it the voting power which we
generally understand accompanies representation. A representative is as well as being a speaking
machine, a voting one, and if Mr. Barton will say in the Bill that this representative or these representatives
are not to have votes, then my alarm will be dispelled. This is the fact as regards the representation of
colonies under the American Constitution, but we have nothing in the clause to show that it is to be the
50 fact here also.
Mr. Wise's amendment was then put

Mr. HIGGINS: My feeling is in sympathy with Mr. Wise's general intention, but I am embarrassed with
the proposal at this stage. There is no doubt our duty is to frame a Constitution for Australasia, and in
framing a Constitution we are giving the Federal Parliament power to acquire territory for the
purposes of the Federation. It must acquire territory belonging to private persons or to the Crown, and all
5 the resolution can apply to is as to what belongs to the Crown. It must deal with the lands under the
Constitution, and I submit to my hon. friend, that his proposal is not constitution-making at all. However
advisable it is to have no alienation in fee simple of these federal lands, and although we know there will be
an effort to boom the land when the federal capital is fixed, we are departing from the ambit of our
instructions in the Federal Enabling Acts if we adopt the proposal now. Our duty is to frame a Constitution,
10 and for us to put in the Constitution something as to what is to be done with the property under the
Constitution, is something which I cannot understand. I ask the hon. member to withdraw it. Rightly or
wrongly, a great proportion of the people look with apprehension upon these views, and we do not want to
frighten the people from coming into the Federation.
Mr. WISE: It will have the opposite effect.
15 Mr. HIGGINS: I feel as strongly as Mr. Wise as to the expediency of the policy indicated in his resolution,
but I want to get Federation, and I do not want to deter a large portion of the people from [start page 1016]
voting "Yes" if we get a working Constitution. Mr. Wise can tell his friends that we shall try to induce the
Federal Parliament to accept this system. I think Mr. Barton has struck the nail on the head when he said it
was not a matter to be considered in framing a Constitution. In framing the Constitution power is given to
20 acquire Crown or private lands by the Federal Government, but at the same time, what is to be done by the
Commonwealth is not a matter of Constitution framing.
Mr. TRENWITH: I differ from my hon. friend on this question, as I think it is desirable that we
should, if we can, put a provision in the Constitution that the lands of the Commonwealth shall always
remain the lands of the Commonwealth. We have bad ample evidence of the unwisdom of selling lands
25 in fee simple in all of the States. We have had several very remarkable instances in the colony of
Victoria-quite recently, where from time to time land was required for public purposes. All the land has
belonged to the people of the State, and when it is sought to be acquired for public purposes, it is always
found that the people have to pay very high prices for that which should never have departed from them, and
we are continually embarrassed with the difficulty. The railways are notoriously non-paving from a book-
30 keeping point of view, and it is altogether because of the fact that in the early days we alienated a large
amount of the public lands, and when we required them for public purposes we had to pay private persons
inordinate prices. I feel I should not be doing right in discussing this question at the length it deserves, but I
feel bound to urge one or two reasons why it would be right to put it in this Constitution at any rate at this
stage, even if it were struck out subsequently. Mr. Higgins points out that in the Constitution Act we have
35 there are provisions for the sale, letting, or otherwise dealing with Crown lands, and therefore it is
unwise to to put in this Constitution that they should not be sold. Now clearly there is no departure from
the Constitution to which he refers. Supposing we only made a provision for letting the lands we have only
done the same thing in a different degree as has been done in the Constitution to which he referred. It has
been said that if the people cannot acquire the fee simple of the land they will not develop it to the same
40 degree as they would if they could acquire it. We have been able in Victoria to furnish an object lesson in this
connection. We recently passed an Alienation Act to which we attached clauses providing for the perpetual
leasing of land subject to a re-valuation every ten years. We find that that land known as the mallee country
in Victoria is being taken up very largely indeed under that system. affording to the agriculturist an
opportunity of using the land for agricultural purposes, and leaving to the State perpetually such unearned
45 increment as may from time to time accrue. We all know that unexpected developments take place and land is
inordinately increased in value, not through any effort of the person using it, but through some extraneous
circumstances over which he has no control, such as the discovery of a goldfield, or the development in the
locality of some form of production which was not thought to be likely at the time it was alienated. The
mallee land of Victoria was thought a few years ago to be absolutely worthless, and the difficulty was not to
50 get people to buy it, but to stop on it at all, in order to destroy the rabbits and keep them from overrunning the
adjoining lands. But quite recently, through two inventions, the land has become amongst the most valuable,
the most easily worked, and the most remunerative in the colony, and if it had been alienated at the price that
could be got for it a little while ago it would have been giving away the land to a few lucky people. If this
clause is put in the Constitution now it will give us an opportunity of ascertaining what is the feeling of [start
55 page 1017] the Parliaments that will have to deal with the Bill. It will give us an opportunity of learning the
opinions of the people through the press.
Mr. O'CONNOR: This is not a proper use to make of this Convention.
Mr. TRENWITH: It is a proper use.

Mr. O'CONNOR: To test the feeling on a fanciful doctrine.
Mr. TRENWITH: It is for us to learn between now and four months hence what is the desire of the
people, and by inserting it now we should have discussion on it in a way.
Mr. BARTON: Do you not think we would have discussion on it if we do not put it in.
5 Mr. TRENWITH: No. Because if we pass it it will be made a clause in this draft which we are preparing
with a view of inviting criticism. Our work just now is to deal as nearly as possible with what we think is
wise with the knowledge that it will receive serious and extensive public and Parliamentary criticism in order
that we might, in the light of that criticism, do what seems most in accord with the public will. It was thought
desirable in previous constitutions to put provisions in for what was then the prevailing custom in regard to
10 the sale as well as the letting of public lands. But there has grown up, and is growing up, a very emphatic and
widespread feeling that a great injustice was done to the people at the inception of the colony by disposing of
their right to the public lands. We are making a Constitution for lands to be dealt with by another body,
and if that feeling is as general as I, Mr. Wise, and others think it is, we have a right to put in the
Constitution a provision that will guard the public property in land from being dissipated as it has
15 been in the past. I feel this subject is so interesting and so important that it is very difficult indeed-it requires
a great deal of self-abnegation-to refrain from discussing it as I should like to discuss it. But it is not proper
that I should; and, having in view the shortness of the time, I will not do so. But I would urge hon. members
to vote for the clause Mr. Wise has proposed; and if, as they think, it will frighten a large number of persons
from coming into Federation, we can eliminate it when the second consideration of this Constitution comes
20 on; or if, as some others think, there is such a widespread feeling in favor of it that this will popularise and
even frighten away many that have that guidance from public discussion in the press, upon the platform, and
in Parliament.
Mr. WALKER: I hope that our hon. friend Mr. Wise will allow this to go to a division at once.
Mr. WISE: I am quite agreeable.
25 Mr. WALKER: Or else withdraw it. Those who have been in Australia for many years know that the fact
of acquiring land on easy terms is one of the main reasons Australia has such a much larger population now
than it had forty years ago. At the present time we have enormous areas in Australia practically uninhabited,
and yet these lands have been offered on remarkably easy terms. It is preposterous to make this Convention a
debating society for the discussion of this land question, after all the delays we have had.
30 Sir JOHN DOWNER: Hear, hear.
Mr. WALKER: If Victoria wants more land, why not let her anne x the Northern Territory from South
Australia? I believe she could get it for the asking.
Mr. TRENWITH: There is only one reason, and that is that South Australia will not consent.
Mr. WALKER: Perhaps the best thing is to give away the land so as to get the people to reside on it and
35 occupy it, and thereby contribute to the revenue through the Customs-house. I hope that without further
discussion this proposal of the hon. member will be negatived.
Dr. COCKBURN: I do not think that this is the lace for a dissertation on the [start page 1018] various
forms of land tenure. Still this is a special case, and not a general one. We are dealing with practically the site
of the federal capital.
40 Mr. TRENWITH: That, and possibly more.
Dr. COCKBURN: Therefore the circumstances attending the consideration of this clause are altogether
exceptionable. Wherever that capital is fixed there is bound to be a large influx of population, and a rise in
land values to a fabulous extent.
Mr. WISE: Hear, hear.
45 Dr. COCKBURN: And we should consider how we can make the best practical arrangement, so that
Federation may as far as possible pay its way.
Mr. WISE: If you leave it to the Federal Parliament the people will rush in and get the land beforehand.

Dr. COCKBURN: If a scheme can be proposed by which it is shown that the Federal Parliament will
retain to itself as the landlord an enormous rise of prices in land, then it will be able to dispense with revenues
from other directions. This is an aspect which might guide the people in considering what the cost of
Federation will be.
5 Mr. HIGGINS: The people cannot rush and get Crown lands when it is a federal capital.
Dr. COCKBURN: We have to consider this matter simply as an ordinary landlord. The federal
authority will be the landlord of the site of the federal capital, and it is for us to consider what is the
best possible use to which the landlord can put the land. This does not necessarily touch the question of
land nationalisation or of methods of land tenure. Therefore I feel compelled to vote with Mr. Wise, and
10 in doing that I do not admit that I agree with the hon. member in all his views. I vote for the amendment
because it establishes the general methods of a sound principle, which is applicable in the present instance,
and will go a long way towards settling the question I have just alluded to.
Mr. HOWE: This land question is really the basis of all public good. So fax as the land laws of each
individual State are concerned, I think they should be left entirely to the Parliament of that State. Ever
15 since I took an interest, directly, in the politics of the State to which I belong I have advocated the leasing of
our Crown lands, and, I am happy to say, Mr. Glynn, myself, and others, working shoulder to shoulder, have
introduced into this country a system of leasing for a term, of leasing in perpetuity, for a fixed rent, or of
giving a leasehold with right of purchase, which, instead of giving the principal part of the money to the
Government, reserves it to the lessees, so that they may improve their properties, which is as good to them as
20 if they held it in fee. The State which is to be created under this Bill is to have a Parliament which will
outnumber any of the Parliaments of the other colonies, and which is to be elected by the people of all the
colonies. What right has one State to say to the Parliament representing the whole people that you shall do so
and so with your land? The Parliament should be allowed to deal with the land in which the federated
government will sit as they like, just as we claim that we should be allowed to deal with the land in our own
25 States. I should resent the Federal Government having the power vested in them of directing any individual
State, however small, how it should dispose of its Crown land. We should never give them that right, and at
the same time we should not attempt to dictate to the Federal Parliament how they should dispose of their
land. You say, "Trust the people"; Mr. Deakin is always telling us to do that. I say, let the Federal Parliament
deal with their lands at their sweet will and pleasure. They are appointed by the people, and will have to
30 account to the whole of the people for the way in which they dispose of their lands.
[start page 1019]
Sir EDWARD BRADDON: This discussion is purely academical, and it was intended to be so by Mr.
Wise. He is a believer in one capital for the Commonwealth. There is but one possible capital.
Mr. TRENWITH: There is only one Hobart.
35 Sir EDWARD BRADDON: And inasmuch as it is not at all likely that that capital will have a very
considerable quantity of land to dispose of-
Mr. BARTON: Not even if you have the whole island.
Sir EDWARD BRADDON: If we had the whole island we should make it difficult for some impecunious,
if largely populated, States to acquire property there. But as a matter of fact there will not be a very large
40 amount of unalienated land to deal with in the capital, and that amount may very well be dealt with in
accordance with the ordinary laws prevailing in the Commonwealth from end to end.
Question-That the words proposed to be added be so added-put. The Committee divided.
Ayes, 13; Noes, 21. Majority, 8.
END QUOTE

QUOTE
Clause 118-The seat of Government of the Commonwealth shall be determined by the Parliament.

Until such determination the Parliament shall be summoned to meet at such place within the Commonwealth
as a majority of the Governors of the States, or, in the event of an equal division of opinion amongst the
Governors, as the Governor-General shall direct.
Mr. WALKER: I am only going to add a few lines to the first sentence. I propose:
5 That the following words be added after the word "Parliament," "and shall be within an area which shall be
federal territory."
That is giving effect to the intention of the Constitution Bill as in clause 104. I may say that my desire is that
the federal capital shall be in some place which is not at present a capital city, thereby removing a bone of
contention, and giving us an opportunity of forming another centre of population. If the Federal Parliament
10 thinks proper to test the principles which my hon. friend Mr. Wise advocates they can do so. But that, in my
opinion, is comparatively a small matter at this stage.
Mr. HIGGINS: Is it a small matter?
Mr. BARTON: I trust that the Convention will not find it necessary to add this amendment. It is far
better to let that matter be settled in the future. We have a provision in clause 51, sub-section 2-that is
15 the only one which deals with the site of the federal capital-which says that the Parliament shall,
subject to the Constitution, have exclusive powers to make laws for the peace, order, and good
government of the Commonwealth with respect to the following matters, including the site of the seat
of government. But that does not say that the Federal Parliament is bound to take any piece of
territory heretofore not inhabited, or not thickly inhabited, and turn it into a federal capital. At
20 present it will be better to leave the hands of the Federal Parliament free, and I trust [start page 1020]
most of the hon. members will be of that opinion. We ought to leave the Federal Parliament free to
determine the site of the Federal capital. My hon. friend's amendment would make it compulsory upon
the Commonwealth to take some area and turn it into a federal capital. It would also practically
impose this limitation, that some territory would have to be selected which is not at present a great
25 centre of population. I am inclined to the opinion myself that it would be a good thing, in order to avoid
intercolonial jealousies, that the site of the capital should not be in one of the present centres. But
subject to that limitation of opinion we shall do well to allow the Commonwealth to deal with the
matter itself. We should not tie its hands. It is fair to leave it in the hands of those who will be the
citizens of Australia, and who ought to determine it for themselves. In the meantime we can allow the
30 clause to stand as it is. I therefore suggest that this amendment be not carried.
Amendment negatived; clause, as read, agreed to.
END QUOTE
And
QUOTE
35 Clause 120-In reckoning the numbers of the people of a State or other part of the Commonwealth aboriginal
natives shall not be counted.
Dr. COCKBURN: As a general principle I think this is quite right. But in this colony, and I suppose
in some of the other colonies, there are a number of natives who are on the rolls, and they ought not to
be debarred from voting.
40 Mr. DEAKIN: This only determines the number of your representatives, and the aboriginal
population is too small to affect that in the least degree.
Mr. BARTON: It is only for the purpose of determining the quota.
Dr. COCKBURN: Is that perfectly clear? Even then, as a matter of principle, they ought not to be
deducted.
45 Mr. O'CONNOR: The amendment you have carried already preserves their votes.
Dr. COCKBURN: I think these natives ought to be preserved as component parts in reckoning up
the people. I can point out one place where 100 or 200 of these aboriginals vote.

Mr. DEAKIN: Well, it will take 26,000 to affect one vote.
Mr. WALKER: I would point out to Dr. Cockburn that one point in connection with this matter is, that
when we come to divide the expenses of the Federal Government per capita, if he leaves out these
aboriginals South Australia will have so much the less to pay, whilst if they are counted South Australia will
5 have so much the more to pay.
Clause, as read, agreed to.
END QUOTE
QUOTE
10 Mr. BARTON: There can be no difficulty about this matter unless it is necessary to restore the word
"proportionate." Then the words "minimum number of representatives" might be left where they are. The
question is made difficult by clauses 23 and 27. In clause 23 there is a provision that there shall be two
members in one House to one of the other. Then we go on to arrive at a quota which, until [start page
1030]Parliament otherwise provides, is to be the number for each member. Then we provide in clause 27:
15 Subject to the provisions of this Constitution, the number of members of the House of Representatives
may be from time to time increased or diminished by the Parliament.
If the Parliament, that is by the concurrence of the House of Representatives and Senate, wishes to decrease
the number of the House of Representatives then the question arises whether the whole of this clause 121 is
not necessary in order that that the proportionate representation of any State in either House may be
20 preserved. Taking the proportion of one House and the proportion of the other, and then taking the liberty
given to the Parliament to increase or diminish the number of the House of Representatives, although the
proportion may be maintained, the one result may be to diminish the representation in both Houses. On
reconsideration, therefore, I am a little inclined to think that by adopting the suggestion to leave out the word
"proportionate" I made a mistake. If we keep in that word it will also be necessary to keep in minimum
25 representation. As it has been suggested that we should re-commit the clause, perhaps it will be better to pass
it now and re-commit it, as I shall probably have other amendments to suggest. I shall probably move-
although I am not certain yet-to restore the word "proportionate." I ask leave to withdraw the proposed
amendment.
Amendment withdrawn.
30 END QUOTE
And
QUOTE
Clause 101-Subject to the provisions of this Constitution, the constitutions of the several States of the
Commonwealth shall continue as at the establishment of the Commonwealth, until altered by or under the
35 authority of the Parliaments thereof in accordance with the provisions of their respective Constitutions.
Dr. COCKBURN: I move:
To strike oat the words "in accordance with the provisions of their respective constitutions."
I take it that it is an inalienable principle in a Federation that the States within the Federation should be at
liberty to decide themselves as to what form of Constitution they will live under. They should not require to
40 go to any outside authority.
Sir JOHN DOWNER: Only to their own Parliament.
Dr. COCKBURN: They require under this clause to have the Royal assent to any alteration of their
Constitution. The Parliaments of the States will have no longer the power to deal with questions outside the
Commonwealth. They will be confined to matters within the States, They will have no power whatever to,
45 legislate in reference to navigation, immigration, or any of those matters regarding which- formerly Bills
passed by the Parliaments have had to be reserved for the Royal assent. Therefore, seeing that it is regarded
by all authorities, as a characteristic of Federation, and as a means of increasing the powers of self-
government of the people, that the Constitutions under which the peoples of the [start page 992] States
choose to live may be changed by them at their own will, without reference to outside authority, I propose to
5 strike out these words.
Mr. ISAACS: They preserve the right you speak of.
Dr. COCKBURN: No; the States will not have the right to amend their Constitutions without appealing to
some authority outside. They do not have to do that in Canada, nor in America.
Mr. DEAKIN: Do you want our States to take the place of Canadian provinces
10 Sir JOHN DOWNER: They only communicate with the Queen through the Governor-General.
Dr. COCKBURN: I have raised this point at every opportunity. I do not wish to take up the time of the
Convention, but I certainly shall move-an amendment, because the clause is not in accordance with the
general provisions of Federation. The States composing the Federation should have full power to deal
with local affairs. Essentially, all external relations are taken out of their jurisdiction. I do think they ought to
15 have the power themselves to say what the Constitution under which they live shall be.
END QUOTE
QUOTE
20 Mr. SYMON.-A person coming from another colony to my right honorable friend's colony would be
entitled to the privileges and immunities enjoyed by the citizens of that colony, no more and no less. What
we have to guard against is this: I apprehend that we do not wish that any state should disqualify, or lessen
the privileges and immunities of, citizens of other states should such citizens enter within its borders. As the
Bill now stands, it might be within the power of one state to say that no citizen of another state should hold
25 land within its boundaries, or that they should hold it only under certain conditions. It should not, however,
be possible for such an enactment to have force. Every citizen of the Commonwealth should be entitled to
hold land in any state under the same terms as were imposed upon citizens of that state. If a citizen of
Western Australia went to Victoria he should be able to hold land in Victoria upon the same terms, and
subject to the same qualifications and limitations, as a citizen of Victoria.
30 Sir JOHN FORREST.-Could he be prevented from doing so? Would the Bill, the object of which was to
prevent him from holding land, get the Royal assent?
Mr. SYMON.-Of course, the absolute control by a state of everything within its own borders is
retained by this Constitution, except in respect to such matters as are expressly handed over to the
Commonwealth.
35 Sir JOHN FORREST.-But subject to the Imperial control.
Mr. SYMON.-The Imperial authorities might not interfere. Of course, these are mere possibilities that I am
discussing. This is the principle involved: Is it not desirable that a citizen of Western Australia should have
the same privileges and immunities as are enjoyed by a citizen of Victoria, and vice versa? If we do not insert
such a provision as this in the Constitution, I do not think we shall have a Commonwealth citizenship at all.
40 Sir JOHN FORREST.-I do not think that could happen.
Mr. SYMON.-I do not know about that. A state might do a great many things which would come
uncommonly near to taking away advantages from citizens of other states, and this possibility is so grave that
it ought to be very seriously considered. The arguments which I used in opposition to clause 110 will give me
serious pause, unless some provision of this kind is introduced into the Constitution.
45 Mr. KINGSTON.-How would you define the word "citizen"?

Mr. SYMON.-I do not think that it is necessary to frame a definition of "citizen." A citizen is one
who is entitled to the immunities of citizenship. In short, a citizen is a citizen. I do not think you require
a definition, of "citizen" any more than you require a definition of "man" or "subject."
Mr. ISAACS.-Would you include a corporation in the term "citizen"?
5 Mr. SYMON.-Why not?
Mr. ISAACS.-Well, in America they do not.
Mr. SYMON.-I do not see why a corporation existing in one colony should not have the rights of a
corporation in another colony. Otherwise you defeat the objects of this Constitution.
[start page 1783]
10 Mr. ISAACS.-I agree that that ought to be so, but the word "citizen" will not include a corporation.
Mr. SYMON.-Well, in my opinion it should. I think, however, though I am not prepared to say definitely,
that other provisions in the Constitution would deal with that case. Clause 52 provides that we are to have
uniformity, and I think would prevent any difficulty in regard to corporations, quite apart from the question of
the meaning of the word "citizen." But if you ask me whether a corporation might not come within the
15 definition of "citizen" to a certain extent-not, of course, in regard to the right of the voting and so on-I should
say that it would. The difficulty is one that requires to be met. Although I admit that the amended American
Constitution goes further than anything we require, and is directed to a particular and special condition of
things, this provision seems to me absolutely essential, and, in my opinion, the Constitution would be
incomplete without it.
20 Mr. ISAACS (Victoria).-There is one word in the proposed clause which, when the honorable member was
speaking, did not strike my attention as it does now. I read the clause as if it provided that the citizens of each
state should be entitled to all the privileges and immunities of all the citizens of the several states; but I find
now that it is not so. The words in the clause are "in the several states," so that possibly it would not have the
disadvantages which I thought at first it would have. I am afraid, however, that it will not do what the
25 honorable and learned member wishes. In Dr. Burgess's work, vol. 1., pages 255-256, it is pointed out that
Germany adopted a provision of this kind with the fall intention that is actuating us now. This is what the
writer says about it:-
This is simply the old provision of Article 4, secure 2. of the Constitution of the United States. that "The
citizens of each state" (Commonwealth) "shall be entitled to all privileges and immunities of citizens in the
30 several states" (Commonwealths). It was fashioned from this provision. It was discovered and demonstrated
in the Constitutional Assembly of 1867 that this provision would not secure the civil liberty throughout the
German State which that body intended to establish, The difficulty was solved, not by fixing the immunities
and privileges of citizenship in the Constitution, but by vesting the Legislature of the General Government
with the power to deal with all these subjects by statutory provisions.
35 That is precisely what the honorable and learned member (Dr. Quick) tried to do yesterday. The provision
which the Convention threw out yesterday is that which has been proved by experience to be the only one
which in Germany could carry out the object wished for. The provision which they moulded upon the
provision in the American Constitution failed to carry out that object, and I am afraid that the provision of the
honorable and learned member (Mr. Symon) will also fail to do so.
40 Mr. KINGSTON (South Australia).-I agree with what has fallen from the honorable and learned member
(Mr. Isaacs). I think that we made a mistake yesterday when we rejected the amendment of the honorable and
learned member(Dr. Quick), and I trust that before we finally separate, we shall be able to include that
amendment in the Constitution, or, if not, to adopt a provision similar to that which was suggested by the
honorable and learned member (Mr. Glynn), which would have made the clause read as follows:-
45 A state shall not deny to the citizens of other states the privileges and immunities of its own citizens.
That, I understand, would mean that a Victorian citizen, whether a Chinaman or any one ease, going,
say, into the great province of Western Australia, would be entitled to all the privileges and immunities
of a citizen of Western Australia. If Western Australia had legislated to restrict the rights of Chinese
within her borders, a Chinaman going there would be subject to that restriction, but if no restrictions
50 had been imposed upon Chinese [start page 1784] residing within Western Australia, it would be
impossible for Western Australia, simply because a Chinaman came from another colony, to treat him
differently from the way in which Chinese residents there were treated. It seems to me an anomaly to
use the word "citizen" in this Constitution, if you neither define it nor make provision for its definition.
I asked the honorable and learned member(Mr. Symon), what was his definition of "citizen," and I
understood him to say that a citizen was a man who had the rights of citizenship. That reminded me of
5 the definition once given of an archdeacon, who was described as a reverend gentleman who performed
archidiaconal functions. Such a definition may be all very well in humorous conversation, but we have
already been warned about the impropriety of inserting anything of this character in the Constitution.
I trust that we shall make this Constitution perfectly intelligible within its four corners, and I do not
think we can do that without adopting some provision of the kind suggested by the honorable and
10 learned member (Dr. Quick).
Mr. DOUGLAS (Tasmania).-I take it that what is required is that the position of citizens of the
Commonwealth should remain practically what it is now, and that each citizen, when he went out of his
own state into another, should be liable to the laws of that state, but to no special laws. On the other
hand, he should not be able to carry with him any particular privileges. It seems to me that we should take
15 care to prevent the states from passing any law which would restrict the rights and liberties of citizens of
other states who happened to come within its borders.
Mr. SYMON (South Australia).-The criticism of my honorable and learned friend (Mr. Isaacs) is, of
course, perfectly sound. This provision does not provide all that we should like to provide. His citation from
Burgess shows that probably something further will be required, but so far as the clause goes, honorable
20 members will see that it is essential that such a provision should be introduced into the Constitution.
Otherwise, we fall short of giving to the citizens of each state the privileges which it is intended that this
Union shall confer upon them. The only real objection to the provision is that it does not go so far as may be
necessary to give complete citizenship. But to the extent to which it does go, and following upon the lines of
the American provision, which has worked so advantageously for over a hundred years, it seems to me
25 essential that we should introduce it into the Constitution.
Dr. QUICK (Victoria)-I do not propose to be as severe in my criticism of the provision of the honorable and
learned member (Mr. Symon) to-day as he was in his determined opposition to my proposed clause
yesterday. I would point out, however, two difficulties in the way of adopting his provision. The first is that
there is no definition of the status of "citizen." The clause does not say whether a citizen is a ratepayer of
30 a state, an adult male, or any member of the population of a state-men, women, children, Chinamen,
Japanese, Hindoos, and other barbarians. Who are the citizens of a state?
Mr. SYMON.-That depends upon the law of the state upon the subject.
Dr. QUICK.-So far as I am aware, there is no law in any colony defining colonial citizenship or state
citizenship. I am merely adopting the line of argument which my honorable and learned friend adopted
35 yesterday, in taking advantage of technical points.
Mr. SYMON.-That was not my line of argument.
Dr. QUICK.-The honorable and learned member gives no definition of state citizenship, but he proposes to
place in the Constitution a provision relating to state citizens. At the present time there is no such entity as a
state citizen. The status of elector, or ratepayers or member of the population of a state may exist, but the
40 [start page 1785] status of citizen does not exist. I am surprised that my honorable friend, with all his learning
and acumen, has proposed to place in the Constitution a provision containing a term of which there is no
definition, even in Professor Morrison's Dictionary. Another objection is this: The clause proposes to impose
the obligation upon all the states to treat the people or citizens, as the honorable and learned member has
described them, of other states upon the same terms as apply to their own citizens. Does not that provision
45 interfere with state rights?
Mr. SYMON.-Not a bit.
Dr. QUICK.-Why should the honorable and learned member endeavour to interfere with state rights, when
he has been one of the most determined advocates of and sticklers for the independence of the states?
Mr. SYMON.-Are you not going to give citizenship throughout the Commonwealth?
50 Dr. QUICK.-This is a Bill to establish a Federal Commonwealth, and while there may be strong arguments
in favour of defining federal citizenship, I contend that there is no occasion for us to go further and to
attempt to define state citizenship. On these two grounds I think that the proposed clause should be rejected.

The CHAIRMAN.-It will be advisable if Dr. Quick desires to move his new clause that be should move it
as an amendment on this one, so as to save two discussions on the subject.
Mr. WISE (New South Wales).-I am sorry it is impossible to obtain the last edition of Cooley's
Constitutional Limitations. There is a most valuable note in it upon the importance of similar words in the
5 American Constitution, which were introduced by an amendment as ancillary to the clauses relating to the
freedom of trade. Judge Cooley points out that since that amendment has been introduced these words have
been found of the utmost importance in preventing interference by the several states with the trade of their
neighbours, under various pretexts. He points out that under there words such a tax as that on commercial
travellers in New Zealand would have been declared illegal, although it could not have been touched under
10 the freedom of trade clause. Devices really aimed at limiting trade between the states, although ostensibly
taking another form, were dealt with under this amendment, and without it they could never have been
prevented. I trust the amendment will be carried in this form, or perhaps Mr. Symon can see his way to alter
the word "states" to "Commonwealth," which, I think, would meet Dr. Quick's view.
Mr. SYMON.-If you move that, I will accept it.
15 Sir JOHN FORREST.-What is a citizen? A British subject?
Mr. WISE.-I presume so.
Sir JOHN FORREST.-They could not take away the rights of British subjects.
Mr. WISE.-I do not think so. I beg to move-
That the words "each state" be omitted, with the view of inserting the words "the Commonwealth."
20 I apprehend the Commonwealth must have complete power to grant or refuse citizenship to any citizen
within its borders. I think my answer to Sir John Forrest was given a little too hastily when I said that every
citizen of the British Empire must be a citizen of the Commonwealth. The Commonwealth will have power
to determine who is a citizen. I do not think Dr. Quick's amendment is necessary. If we do not put in a
definition of citizenship every state will have inherent power to decide who is a citizen. That was the
25 decision of the Privy Council in Ah Toy's case.
Sir JOHN FORREST.-He was an alien.
Mr. WISE.-The Privy Council decided that the Executive of any colony had an inherent right to
determine who should have the rights of citizenship within its borders.
Mr. KINGSTON.-That it had the right of keeping him out.
Mr. WISE.-In our case he was within our limits, but he was not allowed to sue in our courts.
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.
35 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." Mr. Wise will see that that follows
the ordinary phraseology of the Bill, and I do not think it alters the meaning of what he intends to propose. I
40 leave it to his consideration, because it would make the clause more consistent with the rest of the Bill. I still
take objection to the use of the word "citizen" here without a definition, and I understand the definition is to
be proposed by Dr. Quick. As this will be the only part of the Bill where the expression "citizen" occurs, I
would like to support the suggestion of the Chairman that Dr. Quick should move his clause as an amendment
on that of, Mr. Symon. Then the definition will be in the only clause which deals with the subject. As to
45 ordinary matters, the part of the Bill called the Act has made some provision. Clause 7 of the covering
clauses, as redrafted, provides that-
This Act, and all laws made by the Parliament of the Commonwealth in pursuance of the powers conferred
by the Constitution, and all treaties made by the Commonwealth, shall be binding on the courts, Judges, and
people of every state and of every part of the Commonwealth, anything in the laws of any state to the
contrary notwithstanding.
So anything conferred by the Constitution or by any law under the Constitution upon any subject or citizen,
as he has been called, will be retained by him, inasmuch as the liability to obey the laws involves the
5 protection of the laws, so that a good deal of what is sought by this clause is already conferred by clause 7.
As to the general object of Mr. Symon's proposal, I confess I am strongly in favour of it. My only doubt is
whether we should not rather cumber the Constitution by using the word "citizens," and requiring a definition
of citizens when we use it here, and when the ordinary term to express a citizen of the empire might be used.
We are subjects in our constitutional relation to the empire, not citizens. "Citizens" is an undefined term, and
10 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?
Sir GEORGE TURNER.-Suppose you say "subject" without definition, would that include
15 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?
20 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.
25 Dr. QUICK.-That refers to special races.
END QUOTE
The last comments clearly underlines that any race subject to special laws within Subsection
51(xxvi) loses their rights of franchise.
Now, any proposal to have homosexuals being dealt with under this “race” provision would in
30 fact not only be an absurdity, as Subsection 51(xxvi) was intended to relate to coloured races, but
more over would remove the right of homosexuals to have franchise and by this neither could be
in Parliament or serve as a judicial officer in a court!
And
QUOTE
35 Mr. BARTON.-But if he is under any disability under any regulation of the [start page 1787]
Commonwealth he would cease to be a citizen, however slight that disability might be. I doubt whether the
honorable member intends that. There is power by law to regulate the people of any race requiring special
laws. There may be some purely regulative law passed, not imposing any special restriction on any person of
that kind who may be a subject of the Queen. That regulation, if it were of the mildest character, under this
40 definition, would deprive him of his rights.
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?
45 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.
5 Sir GEORGE TURNER.-Subject to the laws will be too wide.
Mr. BARTON.-Yes, it might be. The expression "resident subjects of the Queen" would avoid the
necessity of having a definition of a term which only occurs in one place in the Constitution. I do not know
how Mr Symon would take the suggestion, but it is far better not to import the word "citizen" here if we can
deal with it by a term well known in the constitutional relations of the empire between the Queen and
10 her subjects.
Mr. SYMON (South Australia).-I have expressed the opinion, whether rightly or wrongly. that the word
"citizen" does not require a definition at all in the Constitution. We are not dealing with rigid terms or with a
Constitution which is not to be perfectly elastic, and under the construction and interpretation of the
Constitution the word "citizen" seems to me to be capable of very easy determination. It is one of those
15 expressions which in the Constitution is just as easy of determination as the word "person." I really do not see
where the difficulty is.
Mr. ISAACS.-It has been found very difficult to define it by decisions in the United States.
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
20 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. I will be quite content. The
principle is what I am contending for: The principle that our labours will be incomplete unless we make the
25 rights of citizens or subjects in one state to extend to the citizens of another state who may go from one state
to another. There ought to be no possibility of any state imposing a disqualification on a person in the holding
of property, or in the enjoyment of any civil right, simply because be happens to belong to another state. That
would not give us the uniformity of citizenship we all desire, and therefore I am willing that the word
"citizenship" should be defined as Dr. Quick suggests, with perhaps some modification. I also support the
30 suggestion from the Chair that the two propositions might be considered together. The clause would do
something to meet the difficulty, not perhaps finally or conclusively, as Mr. Isaacs, said, but at any rate to a
large extent and almost completely.
[start page 1788]
END QUOTE
35 No question about it that the 1967 con-job referendum actually now has resulted that legislation
passed within the amended subsection 51(xxvi) in regard of Aboriginals constitutionally stripped
all Aboriginals of their State citizenship and so Commonwealth citizenship (also being
Australian citizenship) and so their franchise!
And
40 QUOTE
Mr. SYMON.-I should be quite satisfied with that.
Dr. QUICK (Victoria).-There can be no doubt that this subject is surrounded with considerable difficulty,
and probably any decision arrived at will be reviewed either by the Drafting Committee or the Convention at
a subsequent stage. The Hon. Mr. Wise's suggestion to amend the Hon. Mr. Symon's clause so as to make it
45 read-
The citizens of the Commonwealth shall be entitled to all the privileges and immunities of the citizens of
the several states,

offers a method by which the difficulty might be solved, but a definition ought to precede any legislation on
the subject, and I shall therefore propose that the new clause of which I have given notice defining
citizenship be placed in front of the words proposed by Mr. Symon. It is as follows:-
All persons resident within the Commonwealth, being natural-born or naturalized subjects of the Queen, and
5 not under any disability imposed by the Parliament, shall be citizens of the Commonwealth.
Mr. Symon's words would then follow:-
And the citizens of the Commonwealth shall be entitled to all the privileges and immunities of citizens in
the several states.
Mr. SYMON.-Is it necessary to leave in the words "natural-born or naturalized"?
10 Dr. QUICK.-That is a detail that is open to discussion. I feel that there is a considerable difficulty in
connexion with this definition, but, as it has been suggested, I will propose it, and leave the committee to
amend it if they think proper. The words proposed to-day may not give exact expression to the views of the
Convention, but it would be a very serious mistake if some provision of this kind were not inserted in the
Constitution.
15 The CHAIRMAN.-The amendment proposed by the Hon. Mr. Wise is now before the Chair.
Mr. WISE (New South Wales).-I will withdraw my amendment for the time being, to enable Dr. Quick to
submit his amendment.
The amendment was, by leave, withdrawn.
END QUOTE
20 It ought to be clear that there was never any intentions that somehow a person trading on
Commonwealth controlled property could by this avoid paying taxes and duties. Indeed, it would
be a breach of Subsection 51(ii) if it were to apply different regime versus that in a State.
The real issue is that the Commonwealth properties are owned by the States, and that when there
is a reference to States, then it includes any territory or property held by them in conjunction by
25 all States. The usage of “subject to this constitution” in Section 52 cannot be used in a different
context then what is used in Section 10, and must be interpreted to its meanings as expressed by
the Framers of the Constitution during the Debates to create the Constitution.
My view is, that judges ought to spend more time perusing the Hansard records of the
Constitutional Convention Debates so that in regard of certain constitutional provisions at least
30 they make sense and do not give this garbage as too often is handed down. It is not the Courts
function to try to bring within the legislation or constitutional powers something that the Framers
of the Constitution never intended.
When it comes to Subsection 51(v) “postal, telegraphic, and other like services” the Delegates
(Framers) specifically discussed that the latter was because of likely new discoveries that would
35 occur and so to be included. As such, this section was intended to include future inventions in
this filed using telegraphic (electronic) communication. Hence, in that regard, I view that the
invention of television was within the expectations of the Delegates, regardless that at the time of
framing the Constitution did not exist. The importance of interpreting any section and subsection
of the constitution is what where the intentions of the Framers at the time they created the
40 Constitution. It is clear that from reading their debates they never intended to exclude a State for
sovereign powers it had over any property the Commonwealth held as proprietor unless
specifically stated to be beyond the States powers. It would be absurd to hold that somehow the
Commonwealth could purchase land without restrain and then lease it to anyone and while the
Commonwealth would not be required to pay land tax as any other land proprietor it could still
45 charge it against someone subleasing the land. The issue is that the Commonwealth holding land
for Commonwealth purposes, not that of for investment, etc, does not have to pay any kind of
land tax however any land occupied as proprietor not being used strictly for the public use for
which the Commonwealth has constitutional powers, then it is bound to pay land tax as any other
landholder. At no time did the Framers contemplate that the Commonwealth would go beyond its
5 constitutional powers. Therefore, it cannot be held that somehow they intended for the
Commonwealth to buy land up and then lease or sublease whole or part of it. Managing airports,
in my view has nothing to do with Commonwealth purposes. In fact neither so the running of a
television station. The powers to legislate, such as “companies” does not mean that the
Commonwealth then can use this to create company after company in whatever area. There never
10 was any constitutional powers to separate Australian Post from the then Telecom (now Telstra)
and indeed, postal workers not directly employed by Australian Post neither can rely upon any
Commonwealth constitutional provisions. Also, land that was purchased at the time for
Telecom/Telstra communications if it was deemed to be as is applied to Melbourne
(Tullamarine) Airport that the State Government cannot change land tax, then the moment
15 Telstra was privatised the State Government and so the local councils under it was entitled to
charge land tax. It would be an absurdity to hold that some private company could avoid paying
land tax. More over, if the land was held by the Commonwealth as a “sovereign”, then the sale
of the land by Telstra to others would not extinguish the sovereign powers of the
Commonwealth, and it would then remain commonwealth territory. Meaning, that in effect land
20 rezoned by a local council and allowed for building of houses, then the rezoning and any land tax
upon the buildings would remain unconstitutional as the property being held as sovereign by the
Commonwealth of Australia cannot revert back to the State unless the land is sold back or given
back to the relevant State government.
Despite the numerous trips to Melbourne (Tullemarine) Airport I am not aware any signage
25 indicating that one is entering or leaving Commonwealth territory. Neither that one is entering or
leaving Commonwealth legal jurisdiction. This is in particular also a major problem with people
entering a building, such as Centrelink, Department of immigration, etc.
Centrelink, as I understand it, is a private company that is hired by the Commonwealth of
Australia to manage certain social security matters. It would be absurd to argue that somehow
30 State laws were extinguished , say, on a Centrelink used property. It would fall within ordinary
State powers. For example, a private printing company that happens to print material for the
commonwealth government Printer, hardly could be deemed to be reclassified as being on
commonwealth property while printing, say, a Gazette, while at the same time having other
printers printing business cards for a private person then this part of the Printers building is not
35 Commonwealth property. The Framers of the Constitution did accept that for example the
Commonwealth could engage lawyers to act for the Commonwealth, but it also took the position
that those working in customs, Australian Post and telecommunication, etc would al be
Commonwealth Public Servants. As such, where a person is not a Commonwealth Public Servant
then any constitutional powers otherwise applicable may or may not be so.
40 A Commonwealth health inspector entering a private farm to investigate a health matter hardly
could then claim that the farm now is Commonwealth property because of working there for an
inspection. Neither could the Commonwealth health inspector claim not to be bound by State
laws merely because of exercising Commonwealth constitutional powers in regard of quarantine,
etc, as is argued with Australian Post deliveries.
45 Commonwealth Public Servants are as much bound by State laws as any other private citizen
within State legal jurisdiction. Commonwealth vehicles cannot, for example, ignore State road
rules and would be obliged to pay parking and other infringement notices as any private citizen.
The Framers never intended that the Commonwealth could terrorise in that regard any State!
The Framers inserted Subsection 51(xxvi) to keep out “coloured races” to protect Australian
50 jobs, yet the legislation is abused and misused for purposes never intended by the Framers, and
coloured races are allowed into the country unchecked to take Australian jobs, or jobs are
transferred to other countries. That is not the intent of the constitution, and either we have a
constitution and act within the restrictions as intended by the Framers or simply we all together
create one that is more suitable. But, having this nonsense going of, such as an unconstitutional
Queen of Australia must be stopped. A major failure with Commonwealth legislation is that they
do not reveal in the preamble under which specific legislative power the enactment is made, by
5 this they are playing “Russian Roulette”, so to say, with unconstitutional legislation. Hence,
legislation must show the source of legislative powers. And, lawyers not competent in
constitutional issues should not be appointed to the bench of the High Court of Australia!
WITHOUT PREJUDICE
10 Mr Michael Kirby 3-11-2002
Sydney
NSW 2000
Faxed to: 02-6273 3025
Re: Would it be possible to have gay matters dealt with in the Family Court of Australia?
Sir,
20 In regard of your e-mail, I am now able to provide you details as to the true intentions of
the framers of the Constitution.
Thu, 31 Oct 2002
QUOTE
25 Dear Mr Schorel-Hlavka
Thank you for your letter.
There is no bias, any more than there would be for a woman judge sitting in a case involving
30 women or a male judge in a rape case.
Your views on the Constitution appear to have overlooked s 51(xxxvii) of the Constitution. If
that power were not enough, and none of the other heads of power sufficed, it is true that an
amendment of the Constitution might be required. Alternatively, there are cooperative schemes
35 for parallel legislation. Ours is a cooperative federation, as the Constitution itself envisaged.
Sincerely, Michael Kirby
END QUOTE
40 It ought to be clear, that contrary to the assertion of the high Court of Australia, Section
51(xxxvii) is not a section which permitted the PURPORTED reference of legislative powers, in
regard of the Australian Act. Indeed, if this were to be so then the very sovereignty of each State
would no longer exist!
Neither so would it to refer legislative powers in regard of gay and lesbian people unless
45 accepted by way of refendum (s128), to approve of the reference of powers.
I quote below part of the Hansard THURSDAY, 27TH JANUARY, 1898 which ought no doubt
show that the only issue any state can “refer’ to the Commonwealth is a matter that is within its
State legislative powers.
50
Clearly, the Australian Act was not something that was within the legislative powers of any
State.
Further, Section 51(xxxvii) can only be used to refer legislative powers of one or more (but not
55 all) States to the Commonwealth!

Further, any reference of such powers is still subject to Section 128 referendum!
QUOTE
Mr. BARTON (New South Wales).-
Consequently, if it were proposed to add a legislative power of the kind suggested by Mr.
5 Holder, I take it that as Chapter VIII. provides first for the passage of the proposed
law by an absolute majority, and then for a referendum, the law would have no
effect unless the majorities of the several states agreed to it.
END QUOTE
It must be very obvious, that while a State may refer legislative powers to the Commonwealth, it
10 can’t be deemed effective unless it has been accepted by way of “referendum” within Section
128 of the Commonwealth Constitution.

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From: "Janet Saleh" <JSaleh@hcourt.gov.au>
To: <mayjusticealwaysprevail@schorel-hlavka.com>
40 Subject: MAIL FROM JUSTICE MICHAEL KIRBY'S CHAMBERS
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Dear Mr Schorel-Hlavka
45
Thank you for your further letter of 3 November 2002.
I have noted your points of view and the quotations you have given from the Convention
Debates. They are certainly very interesting.
50
I do not feel that I can continue this interchange, mostly because of the pressure of work.
However, I am grateful to you for expressing your opinions, as is your right as a citizen of this
country.
55 Sincerely, Michael Kirby
This is an email from the Sydney Chambers of Justice Michael Kirby.
Janet Saleh is the judge's Personal Assistant.
Telephone: +61 2 9230 8203
Fax: +61 2 9230 8626
email: JSaleh@hcourt.gov.au
5 Awaiting your response, G. H. SCHOREL-HLAVKA

END QUOTE 060311
.
QUOTE 070220 correspondence
WITHOUT PREJUDICE
10 Mr John Howard Parliament House, Canberra, 20-2-2007
Fax 02 6273 4100 Ph; 02 6277 7700 C/o David.Hawker.MP@aph.gov.au
Cc; All Federal Members of Parliament

Premier Mr Steve Bracks info@parliament.vic.gov.au
15 Premier Carpenter wa-government@dpc.wa.gov.au
Premier The Hon. Morris IEMMA, MP thepremier@www.nsw.gov.au
Peter Beattie MP, Premier premiers.master@premiers.qld.gov.au
Premier Mr Paul Lennon "Ackerley, Beth" <Beth.Ackerley@dpac.tas.gov.au>
Hon MIKE RANN MP ramsay@parliament.sa.gov.au
20 Peter Cullen National Water Commission, Wentworth Group
Professor Mike Young mike.young@csiro.au, information@wentworthgroup.org
Dr Arlene Buchan a.buchan@acfonline.org.au
George Warne - irrigator farmer GM and CEO of Murray Irrigation Limited
25 Sam Leone sam.leone@mdbc.gov.au
Wendy Craik Chief Executive wendy.craik@mdbc.gov.au
Some others; greg.holland@mdbc.gov.au, TheLivingMurray@mdbc.gov.au,
icm@mdbc.gov.au, lakevic.project@mdbc.gov.au, watertrade.project@mdbc.gov.au,
floodplain.project@mdbc.gov.au, sraudit.project@mdbc.gov.au,
30 sharon.davis@mdbc.gov.au, david.dreverman@mdbc.gov.au,
catherinen@murrayirrigation.com.au, aciar@aciar.gov.au

Ref; 10 Billion dollars but who pays, etc
Sir,
35 You have offered 10 billion dollars regarding the issue of WATER issues, but only
provided the States involved are referring legislative powers over to the Commonwealth of
Australia, but this has constitutional problems to it which appears to be ignored by all.
Mr. DEAKIN.-
As I read clause 52, the Federal Parliament will have no power, until the law has thus
become absolutely federal, to impose taxation to provide the necessary revenue for
carrying out that law.
45
Please note that clause 52 is now Section 51 of the Constitution.
Absolute Federal is that Consolidated Revenue can only be used if the Commonwealth of
Australia has sole legislative powers to the exclusion of all States and Territories! This, as the
Territories in that regard are a quasi State!
50

Mr. OCONNOR (New South Wales).-
Of course, when I speak of a state, I include also any territory occupying the position
of quasi-state, which, of course, stands in exactly the same position.
Sir GEORGE TURNER (Victoria).-It seems to me that the question of direct taxation is
again being drawn across the trail to catch votes. Under ordinary circumstances, a million
or two million pounds could not be taken from the Customs revenue; but, suppose that an
10 expenditure were undertaken, the Commonwealth would have to raise the money by direct-
taxation. If the money were taken out of Customs revenue, and the clause were not in the
Bill, there would be so much less surplus to return to the states, and the states would have
to make up the deficiency themselves by direct taxation. These little words, "direct
taxation," were used in the Finance Committee, and have been used since to try and
15 frighten honorable members. If money cannot be raised by customs duties, it must be raised
by direct taxation.
Again;
and the states would have to make up the deficiency themselves by direct taxation.
20
You see, the Commonwealth of Australia is permitted to make grands within its constitutional
powers to a State but if the Commonwealth of Australia obtains legislative powers then there is
no constitutional powers make any grand to a State in regard of it, as it no longer has the
legislative powers, and this is where the legal trickery kicks in, as perhaps unbeknown to the
25 premiers then the Commonwealth of Australia is to levy a special tax against the States who
referred legislative powers to the Commonwealth of Australia where as the State who did not
refer the legislative powers, say, Western Australia and Tasmania would not have this special
levy.
30 Below I have set out to some extend how this applies, using the statements of the Framers of the
Constitution themselves. As such, it is not something that I, so to say, dreamed up, just that I as a
Grandmaster “constitutionalist” research these matters.
Basically, if Queensland, NSW, Victoria and South Australia were to refer legislative powers to
the Commonwealth of Australia then the Commonwealth of Australia has to recoup the billions
35 of dollars by charging those four States a special levy. Now, I view that the electors of those
States should be made aware of this!
It is because of the reference of legislative powers that this come about, whereas if the States
retain their legislative powers and the Commonwealth of Australia, say, within Section 96 of the
Constitution, then the Commonwealth of Australia could set conditions, albeit they must not go
40 beyond any other powers set out in the Constitution (as the Framers of the Constitution made
clear) and as such the Commonwealth of Australia could insist, for example, that the 10
BILLION DOLLARS are provided progressively pending completion of certain targets, such as
exist in Victoria when one has to pay a builder only progressively as a house is being build.
By this also, the Commonwealth of Australia could, for example, have a condition that a body of
45 experts are to be appointed as commissioners to manage WATER issues, in regard of those
States who are receiving moneys of the 10 billion dollars, and such committee is to report back to
the Federal Government also as to justify further progressive payments. Hence, the idea of
Premier M. Rann is the best option and the recent suggestion of Premier Peter Beatty to pump
surplus WATER from Queensland into the Murray River further would enhance the plan.
50

I for one do not believe that Queensland should be on its own severely out of pocket for having a
WATER pipeline laid into the ground to provide the Murray River with WATER. Indeed,
Northern Queensland may be able to create WATER storage facilities (reservoirs), where also
surplus WATER can be pumped into and then later to be released to the Murray River.
5 The potential is huge, and avoid wasting the WATER into the seas.
Because coal production for export does involve huge amounts of WATER resources I view that
companies that are using large amount of WATER should pay for this as to offset cost of
WATER. They simply should not be allowed to use drinkWATER for industrial purposes on
such a grand scale. Likewise, as I previously recommended to premier Steve Bracks, the Fire
10 Brigade should be using only recycled WATER as it is absurd to have good drinking WATER
flowing down the drains whenever the fire hydrants are turned on as it needs to clear itself and
so precious WATER is in the process wasted with every fire hydrant used for that purpose. Also,
it really does not matter to use recycled WATER for extinguishing fires.
15 The Commonwealth of Australia, since federation, by way of Section 100 of the Constitution
and has had indirect legislative powers to set what is “reasonable use” of WATER where it
affects navigation of rivers.
QUOTE 16-3-2005 correspondence to Malcolm Turnbull

20 Hansard 1-2-1898
Mr. HOLDER.-We do not want to deprive New South Wales of any such power. We
wish to leave that colony as free as ourselves to use her rightful share of the water for any
purpose she pleases. Who is to determine what is the rightful share? The Federal
Parliament.
25 END QUOTE 16-3-2005 correspondence to Malcolm Turnbull
One may ask did Malcolm Turnbull ignore this information conveniently?
See also http://au.blog.360.yahoo.com/blog-ijpxwMQ4dbXm0BMADq1lv8AYHknTV_QH and

30 www.schorel-hlavk.com
Mr. DEAKIN.-
35 In this Constitution, although much is written much remains unwritten
Mr. ISAACS (Victoria).-
40 In the next sub-section it is provided that all taxation shall be uniform throughout the
Commonwealth. An income tax or a property tax raised under any federal law must be
uniform "throughout the Commonwealth." That is, in every part of the Commonwealth.
Mr. BARTON.-I am saying now that I do not think there is any necessity for clause 95
in its present form. What I am saying however, is that it should be made certain that in the
same way as you provide that the Tariff or any taxation imposed shall be uniform
throughout the Commonwealth, so it should be provided with reference to trade and
50 commerce that it shall be uniform and equal, so that the Commonwealth shall not give
preference to any state or part of a state. Inasmuch as we provide that all taxation,
whether it be customs or excise duties, or direct taxation, must be uniform, and
inasmuch as we follow the United States Constitution in that particular-in the very same
way I argue that we should protect the trade and commerce sub-section by not doing
anything which will limit its effect. That is the real logical position.
5
Clause 52, sub-section (2).-Taxation; but so that all taxation shall he uniform throughout
the Commonwealth, and that no tax or duty shall be imposed on any goods passing from
10 one state to another.
Mr. BARTON (New South Wales).-I have prepared an amendment with regard to this
sub-section, which puts the matter into a form which would express the intention of the
Convention, whilst avoiding a difficulty. Honorable members will recollect the difficulty
that arose over the construction of words equivalent to "uniform throughout the
15 Commonwealth" in the United States of America. Although no actual decision has been
given, a doubt has been raised as to the meaning of the word "uniform." The celebrated
income tax case went off as to the direct apportionment of taxation amongst the people
according to numbers, and this point was not decided, but a great deal of doubt has been
thrown on the meaning of the word in the judgment of Mr. Justice Field. I think that
20 although the word "uniform" has the meaning it was intended to have-"one in form"
throughout the Commonwealth-still there might be a difficulty, and litigation might arise
about it, and prolonged trouble might be occasioned with regard to the provision in case,
for instance, an income tax or a land tax was imposed. What is really wanted is to
25 circumstances. I beg to move-
I conceive it to be quite unnecessary to retain these words in view of clause 89,
30 prescribing free-trade among the several states, under which any duty or tax on goods
passing from one state to another would be clearly invalid, and could not possibly be
allowed by the operation of the preference clauses. I propose not to say anything about
goods in this connexion passing from one state to another, as that is sufficiently provided
for, and I put in this provision, which prevents discrimination or any form of tax
35 which would make a difference between the citizen of one state and the citizen of
another state, and to prevent anything which would place a tax upon a person going
from one state to another. I beg to move-
with a view to inserting the following words-"but not so as to discriminate between
40 states or parts of states, or between persons or things passing from one state to
another."
Dr. QUICK.-Certainly, with regard to constitutional questions. I am prepared, if
necessary, to give up the subject's right of appeal; but I emphatically assert that there
should be a right of appeal from the decision of the High Court in regard to this
Constitution, a Constitution embodying novel provisions and giving important powers,
including the power of the Federal Court to review the procedure of Parliament. The
Federal High Court is empowered to-declare a law passed by both Houses and
assented to by the Crown ultra vires, not because the Legislature has exceeded its
5 jurisdiction, but because of some fault of procedure. Appeals would be made only when
there was a reasonable doubt in the minds of the responsible advisers of the
Commonwealth that the decisions of the High Court were open to question. The knowledge
of this right of appeal would be an incentive to the High Court to be most careful in its
decisions, and especially in its early decisions. I need not enumerate the cases in which, if
10 the amendment is carried, there will be no right of appeal. There will be no right of appeal
in regard to the letter of the Constitution itself. There will be no opportunity to review a
decision, for instance, in regard to legislation under clause 52, sub-section (1)-"The
regulation of trade and commerce." Then, again, it is provided that all taxation is to be
uniform, and all legislation under this provision will be taken out of the purview of the
15 Privy Council.
But, when it comes to the Commonwealth of Australia not exercising federal powers as such for
the whole of the Commonwealth of Australia but merely using referred powers for some of the
States such as with the WATER issue then a special tax is not only permitted but is required as
20 to cover the cost in regard of those States who had their powers referred to the Commonwealth of
Australia. In that case, it is a special legislative power, not being for the whole of the
Commonwealth of Australia and hence no funds from Consolidated Revenue can be used for
this.
Mr. DEAKIN (Victoria).-
25 As I read clause 52, the Federal Parliament will have no power, until the law has thus
become absolutely federal, to impose taxation to provide the necessary revenue for
carrying out that law.
(Clause 52 is now Section 51 of the Constitution)
Sub-section (35).-Matters referred to the Parliament of the Commonwealth by the
Parliament or Parliaments of any state or states, but so that the law shall extend only to the
state or states by whose Parliament or Parliaments the matters was referred, and to such
35 other states as may afterwards adopt the law.
Mr. DEAKIN (Victoria).-I wish to call attention to this sub-section, which, like several
others in this portion of clause 52, represents a power first conferred upon the Federal
Council, but which, as it appears to me, if allowed to remain in its present restricted form-
suitable enough as that may have been to the Federal Council-is altogether unsuitable to the
40 differing conditions of the Federal Parliament. In the original draft of the Federal Council
Bill the proposal was framed in clause 16 as follows:-
The Governors of any two or more of the colonies may, upon an address of the
Legislatures of such colonies, refer for the consideration and determination of the Council
any questions relating to those colonies or their relations with one another, and the Council
45 shall thereupon have authority to consider and determine by Act of Council the matter so
referred to it.
The draftsman who advised the Imperial Government altered that including it in section
15 of the Imperial Act constituting a Federal Council, where it forms the last part of
subsection (i). The first part of the sub-section gives the Federal Council legislative

authority in respect to the several matters following, and the clause before us, freely
translated, follows:-
Any other matter of general Australasian interest with respect to which the
Legislatures of the several colonies can legislate within their own limits, and as to
5 which it is deemed desirable that there should be a law of general application.
Now, that appears to be ample for all the legislation which the Federal Council could have
dealt with. That body has no Executive, has no Budget, and undertakes no expenditure.
That body is [start page 216] the mere creature of the colonies, is dependent upon them,
except within a very limited area, and, in fact, altogether for any expenditure it may be
10 necessary to incur. Now, during the discussion of the question of old-age pensions, when I
referred to the possibility of that matter being dealt with under this sub-section, I evoked a
comment from Sir John Downer, which called my attention in a particularly pointed way to
a present weakness of the sub-section in this respect. It may well be that some matters
referred by the several state Parliaments to the Federal Parliament, in order that common
15 legislation may be passed for one or more colonies, may require legislation involving some
expenditure-expenditure which must be undertaken in order to give effect to that
legislation. It might be for the ordinary machinery administration-the payment of salaries of
certain officers-or it might be the power to levy certain fees and collect certain charges; or
it might involve direct taxation; but in all such cases it appears to me that the present sub-
20 section may be inadequate. For instance, if reference be made to sub-section (3) of this
clause 52 it will be found that the Federal Parliament has only the power to raise money by
systems of taxation which shall be uniform throughout the Commonwealth. Consequently,
if any legislation referring to any less number of the colonies than the whole of the
colonies, and which involved any expenditure, was passed by the Federal Parliament,
25 although those colonies were willing to vote that expenditure, the Federal Parliament might
have no power to raise that money. The only possible means of the Federal Parliament
obtaining that power would be if it were conferred in the provisions of the referring statutes
passed by the referring colonies, but unless those provisions exactly agreed-and agreement
would be extremely difficult to arrive at-the probability is that the law would be
30 inharmonious and fail in its effect. I would suggest to the leader of the Convention that he
should consider whether there should not be such a modification of sub-section (3), which
provides for the raising of money by the Commonwealth, as would allow of a reference by
two or three colonies desiring to intrust the Federal Parliament with the task of framing
legislation for them, and enabling the Federal Parliament, if so called upon, to provide for
35 the raising of the necessary revenue in those colonies. That would be one means of meeting
the difficulty. Another means might be that when two or more colonies had determined,
under sub-section (35), to refer to the Commonwealth Parliament any matter which
required the raising of money from their citizens, it should be possible, for the
Commonwealth, in regard to those particular matters, to provide for the necessary taxation
40 to be levied in those colonies by the central authority, instead of leaving them to the very
difficult task of coming to an independent agreement among themselves as to all the details
of the method by which the money should be provided.
Mr. GLYNN.-Strike the sub-section out.

Mr. SYMON.-That is the best solution of the difficulty.
45 Mr. DEAKIN.-That may be so.
Mr. GLYNN.-We may have a conflict of laws under the sub-section.
Mr. BARTON.-Such laws can only apply to the referring states themselves.
Mr. DEAKIN.-They would not be, in the strict sense of the term, federal laws.
Mr. BARTON.-No, they would only apply to the states which referred the matters to the
Federal Parliament.
Mr. DEAKIN.-Exactly; but those laws can be adopted by the other states. If two or
5 three colonies join in requesting the Federal Parliament to pass a statute on a
particular matter applying only to those two or three colonies, and that law has been
enacted and proved to work well, the remaining colonies of the group may adopt it,
and finally [start page 217] you may have the Commonwealth in this position, that
every colony in the group has adopted, as far as it can adopt, that particular law,
10 which then ought to be a federal law. This contingency is perhaps provided for. That
being so, it becomes necessary for us to consider whether we should not also provide for
the other contingency. If all the states of the group except one, or if three of the larger
colonies, or any three of the colonies, required a common statute in regard to a particular
subject, and the administration of that statute involved the raising of money, the Federal
15 Government ought to be able to provide for the levying of that money under the same law if
so requested by those concerned.
Sir GEORGE TURNER.-Will you briefly restate the point?
Mr. DEAKIN.-My point is that by the requests of different colonies at different times
you may arrive at a position in which all the colonies have adopted a particular law, and it
20 is necessary for the working of that law that certain fees, charges, or taxation should be
imposed. That law now relates to the whole of the Union, because every state has come
under it. As I read clause 52, the Federal Parliament will have no power, until the law has
thus become absolutely federal, to impose taxation to provide the necessary revenue for
carrying out that law. Another difficulty of the sub-section is the question whether, even
25 when a state has referred a matter to the federal authority, and federal legislation
takes place on it, it has any-and if any, what-power of amending or repealing the law
by which it referred the question? I should be inclined to think it had no such power,
but the question has been raised, and should be settled. I should say that, having
appealed to Caesar, it must be bound by the judgment of Caesar, and that it would
30 not be possible for it afterwards to revoke its reference. It appears to me that this sub-
section, which is certainly one of the very valuable sub-sections of this clause, affording, as
it does, means by which the colonies may by common agreement bring about federal
action, without amending the Constitution, needs to be rendered more explicit. One point
more especially which needs to be rendered clear is whether, when we have this federal
35 action, there shall not be a federal means of providing for the necessary revenue that may
be required or for imposing the necessary charges under such legislation.
Sir JOHN DOWNER.-Is that not implied?
Mr. DEAKIN.-If it is implied, would it not be best to make it explicit? The parentage of
this clause, as I have shown-originating as it does in a body with practically no financial
40 power-casts a certain suspicion on that reading of it, although, of course, the provision
when embodied in this Act would have a different effect. Still, why not make it clear
whether we mean that, when the Federal Parliament has passed federal legislation for some
of the colonies, we shall allow that same legislation to deal with any necessary raising of
revenue from those colonies which may be required to give effect to the legislation?
45 Dr. QUICK (Victoria).-I think the point taken by my honorable friend (Mr. Deakin) is one
well worthy of the consideration of the Drafting Committee, and probably the difficulty to
which he has drawn attention could be obviated by some such provision as that which he
suggested. But this matter has struck me also from another point of view, and it seems
to me that the provision affords an easy method of amending the Federal
Constitution, without referring such amendments to the people of the various states
for their assent. Now, either when the state Parliaments have referred these matters to the
5 Federal Parliament, and the Federal Parliament has dealt with such matters, that becomes a
federal law, and cannot afterwards be repealed or revoked by the State Parliaments-that is
one position, and in that case, of course, the reference once made [start page 218] is a
reference for all time, and cannot be revoked, so that to that extent it becomes an
amendment of the states' Constitution, incorporated in and engrafted on the Federal
10 Constitution without the consent of the people of the various states. On the other hand,
if that be not so, and the states can, after making such reference, repeal such
reference, what is the result? You have a constant state of change-no guarantee for
continuity or permanence-in this class of laws, and this might lead to a great deal of
confusion and a most unsatisfactory state of things. My principal objection to the provision
15 is that it affords a free and easy method of amending the Federal Constitution without such
amendments being carried into effect in the manner provided by this Constitution.
Mr. BARTON.-I cannot understand how it gives an opportunity of amending the

Federal Constitution.
Mr. ISAACS (Victoria).-What I am going to say may be a little out of order, but I would
25 throughout the Commonwealth. That means direct as well as indirect taxation, and
30 the same weight on the same class of property, wherever it is found. It affects all kinds of
direct taxation. I am extremely afraid, that if we are not very careful, we shall get into a
difficulty. It might not touch the question of exemption; but any direct tax sought to be
imposed might be held to be unconstitutional, or, in other words, illegal, if it were not
absolutely uniform.
35 Mr. BARTON.-We were inclined to the opinion that "uniform" would not apply so
as to prevent the graduating of a tax. I am glad to have the suggestion from the
I understand that the Commonwealth of Australia has given certain, so to say, political mates tax
40 free salaries, I understood to be such as with Peter Reith, the former Minister of Defence. In my
view, this is unconstitutional, as it means that the taxation legislation is not use equally
throughout the Commonwealth!
Again;
45 might be held to be unconstitutional, or, in other words, illegal, if it were not
absolutely uniform.
While the Commonwealth may allow graduating tax pending the level of income, I do not accept
that exclusion of paying tax for political mates placed in high positions is constitutionally valid!

As such, any tax exemption can only be applied if applicable throughout the whole of the
Commonwealth, and not specific exemption for certain people only!
Mr. BARTON (New South Wales).-A rather important point has been raised with regard
to sub-section (2), in regard to the question of uniformity of taxation. While there has been
no express decision by the American courts as to the meaning of the words "uniform
throughout the Commonwealth," there are expressions in one of the cases which render it
10 necessary for us to use caution. I therefore ask for a little more time in which to consider
this matter.
Mr. HIGGINS.-To allow graduations and exemptions, is it?
Mr. BARTON.-My own desire is that the Federal Parliament should be unfettered in the
exercise of its taxing power, if it has to use any direct taxation at all. Whatever my own
15 opinions may be as to the way in which that power should be exercised, it is necessary that
the authority to which it is confided should have the power in full force. That being so, I
wish to see that this authority is properly conserved. For that reason, I think it advisable to
postpone the matter, and I therefore move that it should be postponed until after clause 80
has been considered. It would then come on immediately before the provision relating to
20 finance and trade, to which it is so nearly related.
The motion was agreed to, and the clause postponed.

What ought to be clear is that Section 96 grands can be facilitated only regarding issues where
the States have legislative powers. After all, if the Commonwealth of Australia has legislative
powers it does not need to make grands. And, if the Commonwealth of Australia were to obtain
25 legislative powers it might well be that the entire WATER issue could get worse, rather then
better.
We have seen in regard of the detention of refugees, as my website extensively sets out, what an
utter mess is made of it where innocent Australians are detained/deported without due regard of
DUE PROCESS OF LAW. There are numerous other issues that are left unnoticed to many
30 where there is a lack of proper action. For example, the use of Australian Post facilities
(Commonwealth legislative powers) for sending scams to people. The use of telecommunication
(commonwealth legislative powers) to send people scam emails.
Despite hundreds of millions of dollars being defrauded through those schemes the Federal
government simply fails to appropriately deal with it. By this, people end up loosing their entire
35 life savings, and remarkably prior to federation people then lost their entire life savings on dodgy
companies investments, and after more then 100 years of federation the Commonwealth of
Australia has not, so to say, been able to turn the tide, despite that it has all legislative powers to
deal with companies.
40 Much is argued about the use of corporations laws for Industrial Relations changes, but lets
check what really did bring about Section 51(xx) and its intent as to constitutional powers!
It indicates it was to deal with unifying registration of corporations, nothing to do with people
employment with a corporation!
Sub-clause 19. The status in the commonwealth of foreign corporations, and of
corporations formed in any state or part of the commonwealth.

Mr. MUNRO: We have agreed to sub-clause 13, dealing with the incorporation of banks,
and I do not see why a similar provision should not be made in regard to the incorporation
of companies. Why should they not be under the control of federal officers? At the present
time the law as to incorporation is different in the different colonies, and the result is [start
5 page 686] extremely unsatisfactory in many cases. I do not see why we should not make
the same provision in regard to the incorporation of companies as we have made in
regard to the incorporation of banks. We might introduce at the commencement of the
sub-clause words to this effect: "The registration or incorporation of companies."
Sir SAMUEL GRIFFITH: I do not think we should. There are a great number of
10 different corporations. For instance, there are municipal, trading, and charitable
corporations, and these are all incorporated in different ways according to the law obtaining
in the different states.
Mr. MUNRO: But as to trading corporations!
Sir SAMUEL GRIFFITH: It is sometimes difficult to say what is a trading corporation.

15 What is important, however, is that there should be a uniform law for the recognition of
corporations. Some states might require an elaborate form, the payment of heavy fees, and
certain guarantees as to the stability of members, while another state might not think it
worth its while to take so much trouble, having regard to its different circumstances. I think
the states may be trusted to stipulate how they will incorporate companies, although we
20 ought to have some general law in regard to their recognition.
Sir JOHN BRAY: I think the point raised by the hon. member, Mr. Munro, is worth a
little more consideration than hon. members seem disposed to bestow upon it. We know
what some of these corporations are; and I think joint-stock companies might be
incorporated upon some uniform method. In South Australia, a banking company is not
25 allowed to be incorporated under the Companies Act; still, there is nothing in Victoria of
which I am aware to prevent a banking company from being registered there as a limited
company and opening a branch in South Australia a few days afterwards. I think it is
necessary, therefore, to have some uniform law. There is nothing in which the public
should have more confidence than in banks which are in any way recognised by the state;
30 and I think we should have some uniform system of incorporating banks. Many companies,
although doing business under different names, are, in reality, banks.
Mr. MUNRO: The banks are incorporated under the Companies Act in Victoria!
Sir JOHN BRAY: You can establish financial companies, which you do not call banks,
but which answer all the purposes of banks. We have provided that the federal parliament
35 shall legislate as to the incorporation of banks; but there is nothing to prevent the
incorporation by the states themselves, quite apart from the federal parliament, of trading
companies which will do all the ordinary business of banks. If it is desirable to intrust
legislation as to the incorporation of banks to the federal government, there is no reason
why we should not say that the registration of financial companies doing all the business of
40 banks should be dealt with in the same manner.
Sub-clause agreed to.

Mr. BARTON:

The status in the Commonwealth of foreign corporations and of corporations formed in
any State or part of the Commonwealth.
It has so far been altered as to read:
Foreign corporations and trading corporations formed in any State or part of the
5 Commonwealth.
So that the Commonwealth may have the power to legislate, not merely with regard to the
legal status of corporations acting within the Commonwealth, but it may have power as far
as it can legislate upon the general subject of these corporations, over the general subject of
foreign corporations, formed in any part of a State of the Commonwealth, for the purpose
10 of uniform legislation.
Mr. HIGGINS: Does that give power to exclude them from trading in the
Commonwealth?
Mr. BARTON: Not, I think, to exclude them, but to regulate the mode in which they
conduct their operations. It is for the purpose of uniformity. After the old subsection,
15 which gave the Commonwealth power to deal with the subjects of marriage and divorce,
have been added these words:
20 Sub-section 22: Foreign corporation and trading corporations formed in any State or part
of the Commonwealth.
Sir GEORGE TURNER: With regard to this clause, we have already given power to
deal with the question of banking, and we are now giving power to deal with foreign
corporations and trading corporations. I fail to see why we should limit the sub-section to
25 trading corporations. There are financial institutions which are not banking institutions, and
if we are going to give the Federal Parliament power to legislate with regard to banking,
and with regard to trading corporations, we should go a step further and give it power also
to legislate with regard to financial institutions.
Mr. BARTON: I do not know.
30 Sir GEORGE TURNER Building societies.
Mr. BARTON: I think the present wording of the sub-section covers as nearly as may be
the intentions of the Constitutional Committee, and really for the amendment, which is a
desirable amendment, in the sub-clause as it stood in the Bill of 1891, we are indebted to
my hon. friend, Mr. Isaacs, who put it in its present form.
35 Mr. ISAACS: I suggested the word for temporary consideration.
Mr. BARTON: I Should like to be favored with any arguments in favor of the
suggestion.
Mr. DEAKIN: We recently passed a law in our colony which placed a strict limitation
on the meaning of the word "banks," excluding from it particular kinds of financial
40 companies which had hitherto been called banks, or treated as banks.
Mr. BARTON: You mean that kind of financial company that went down so often.

Mr. DEAKIN: We distinguish them from banks on the one hand and trading
corporations on the other. We want to include all limited companies because the class of
companies I am speaking of deal with lands and with deposits, and they require to be
carefully regulated.
5 Mr. MCMILLAN: You want to include everything outside private companies.
Mr. DEAKIN: Especially land and finance companies which caused so much
litigation in the past.
Mr. Symon: In the original Act corporations simply are mentioned. Why this difference?
Mr. BARTON: The reason of making the difference was this: It having been seen that
10 the word "corporations," as it existed, covered municipal corporations, [start page 794] the
term was changed to "trade corporations."
Mr. SYMON: Why not simply use the term "company"? If you use that word it will be
well enough understood.
Mr. BARTON: Why not adhere to "corporation"? That governs everything under the
15 Companies Act.
Mr. SYMON: Why not leave out the word "trading"?
Mr. BARTON: Or add the word "financial"?
Sir JOSEPH ABBOTT: I move:

To insert the word "financial" before "corporation."
20 Mr. BARTON: Would it not be better to make it thus:
Any trading or financial Corporation.
So as to separate that branch from foreign corporations?
Sir JOSEPH ABBOTT: I will consent to that and move:
To insert after trading "the words or financial."

Mr. BARTON.-We do not propose to hand over contracts and civil rights to the
30 Federation, and they are intimately allied to this question.
And
Sir JOHN DOWNER.-
The people of the various states make their own contracts amongst themselves, and if in
course of their contractual relations disagreements arise, and the state chooses to
35 legislate in respect of the subject-matter of them, it can do so.
While the High Court of Australia in its 14 November 2006 handed down a judgment, it
obviously never considered all relevant matters.
40 http://www.abc.net.au/pm/content/2007/s1833935.htm
MIKE RANN: The Prime Minister on Melbourne Cup Day gave us assurances of
collaboration and not acting independently. The Prime Minister looked the Premiers in the
eye and gave us assurances.
5
But now we're being told by Malcolm Turnbull, that in fact this takeover has been planned
for several months. So the answer is, when do we believe them?
http://www.abc.net.au/news/newsitems/200701/s1833861.htm
10
Mr Rann says a legal challenge to the plan would be a waste of money.
"And rather than collaboration or seeking agreement, the first thing that [new Environment
Minister] Malcolm Turnbull talked about on radio this morning was a High Court
challenge, and then boasted that he was no stranger to the Constitution.
15 "We want these bucket loads of cash to go into water, not into lawyers' pockets."
Again;
and then boasted that he was no stranger to the Constitution.
Now, as Malcolm Turnbull already stated as quoted below some parts;
http://www.abc.net.au/news/newsitems/200701/s1833524.htm
20 Mr Turnbull says the Government has the power to overrule the states if they do not agree
to give up the system.
And
Mr Turnbull says he is prepared for a High Court challenge if the states resist.
"I'm not a stranger to the Constitution myself," he said.
25 Quite frankly it is to me sheer and utter nonsense that the Commonwealth of Australia can
overrule the States if they do not give up the system, as the Commonwealth of Australia can
legislate as to “reasonable use” as to protect navigation but no more! It is the Federal Court
(High Court of Australia) that would have to adjudicate riparian rights if that became an issue, as
I will explain later.
30 I personally wonder what constitutional experiences Malcolm Turnbull may have, as the fact that
he might have done some litigation involving constitutional matters does not necessarily mean
that he is an expert in this field or more over that he even understands what it is about. Also, a
person might be an expert in certain constitutional issues but not in others, and as such not being
a stranger to the Constitution does not mean the person is an expert in all constitutional issues.
35 Indeed, if he was such an expert, which I doubt, I view he would never have gone down the path
of the ill-conceived republican referendum.
http://orange.yourguide.com.au/detail.asp?class=national%20news&subclass=general&story_id=
550532&category=General
40 He became chairman of the Australian Republican Movement and when in 1999 the
proposal was put to a referendum and defeated, declared that "whatever else John Howard
achieves, history will remember him for only one thing he was the prime minister who
broke the nation's heart".
45 And this is where the danger lies, the views of Malcolm Turnbull may change with the wind. In
time to come the ten billion dollars may turn out to be inadequate, but then the States would have
no say into the matter.
They may find that the ever power hungry Federal Government would pursue to obtain other
legislative powers but not fixing the real issues. It has proved to do so in numerous other matters
where it has sole legislative powers.
5 The legislative powers are at times very murky if they are State or Commonwealth because we
really lack properly trained constitutionalist. Those judges appointed to the High Court of
Australia may know next to nothing about constitutional powers and their limitations yet are to
adjudicate upon it and then disaster strikes far to often, with ill conceived judgments handed
down. Even where judges are attacking each other credibility.
10
This is why we need an OFFICE OF THE GUARDIAN, a constitutional council, that advises
the Government, the People, the Parliament and the Courts as to constitutional powers and
limitations. Then this OFFICE OF THE GUARDIAN can expose what is embedded in the
Constitution!
15 Only when such an OFFICE OF THE GUARDIAN is created for every State and the
Commonwealth of Australia will more sense be made out of constitutional issues.
http://www.murrayirrigation.com.au/content.aspx?p=3
Murray Irrigation Limited was formed on March 3, 1995, when the government-owned
20 NSW Murray Irrigation Area and Districts were privatised and ownership transferred to
irrigators. Each irrigator landowner is a shareholder in the company. Shares are held in
proportion to the water entitlements held by each member.
The issue is not and should not be as to refer legislative powers to the Commonwealth of
25 Australia for the sake of getting 10 billion dollars, as then the States could simply combine their
effort and privatise the lot with one company working for the four States using private
investment. However, as no Government owns WATER that flows from one State to another,
then it cannot be privatised either. However, Queensland could seel its surplus WATER to other
States where this WATER isn’t drawn from navigating rivers. But, in my view, the States ought
30 to act sensible and combine their finances and political interference from Canberra and be subject
to whatever political party might be in power how then the issue of WATER will be dealt with,
it might just be better to leave legislative powers in the hands of the States.
It should also be kept in mind that there was for example this issue where the Federal
Government bankrolled some program to clear out a WATERway at huge cost to the taxpayers,
35 where by the time the works were done there was no real need for it at all, as the dredging of the
creak/river no longer was required, but because it was a political decision in a marginal seat
moneys were nevertheless spend on the program. This is the danger when the WATER issue is
in Federal legislative power, where the Federal Government may allocate the monies to what
might be most suited in its political interest in marginal seats and at cost of projects that are
40 required to be done as a matter of urgency.
Regardless what anyone else may believe, constitutionally the States retained legislative powers
over water and environment. Yet, we have already witnessed how the Federal Government
purportedly using its “environment” legislative powers, for political purposes in a marginal seat
45 blocked an about 200 million dollar windmill program because of that perhaps once in a
thousand years a Yellow Belly Parrot might be killed. Perhaps next they will ground all planes
for this? These issues are also canvassed in my forthcoming book;
INSPECTOR-RIKATI® on the battle SCHOREL-HLAVKA v BLACKSHIRTS

50 For the quest of JUSTICE, in different ways. Book on CD.
ISBN 978-0-9580569-4-6 was ISBN 0-9580569-4-3

Albeit some also were previously canvassed such as in my 30 September 2003 book;
INSPECTOR-RIKATI® on CITIZENSHIP
5 ISBN 978-0-9580569-6-0 was ISBN 0-9580569-6-X
On 6 July 2006 I also published one of my other books;
INSPECTOR-RIKATI® & What is the -Australian way of life- really?

10 A book on CD on Australians political, religious & other rights
ISBN 978-0-9751760-2-3 was ISBN 0-9751760-2-1
This book was subsequently also filed as evidence in my appeals for “FAILING TO VOTE”,
and despite of my section 78B NOTICE OF CONSTITUTIONAL MATTERS, on numerous
15 constitutional matters I succeeded in the appeal UNCHALLENGED on each and every
constitutional ground I raised. This, including it is unconstitutional to force anyone to vote in
federal elections! I proved to be correct, and therefore I proved, after a 5-year legal battle, that in
that regard I knew what was and is constitutionally applicable then the lawyers for the Federal
Government did, and despite the provisions of Section 245 of the Commonwealth Electoral Act
20 1918 making it obligatory to vote, in the end I proved it was unconstitutional legislation.
While Malcolm Turnbull may be litigation hungry, at least where he already seemed to indicate
willing to go to the High Court of Australia about it, I view, that Premier Michael Rann was
rather right that it should not be about litigating in Court (using my own interpretation of his
statement) but seeking to deal with the real WATER issue.
25
For this, I view, that it would be highly undesirable for the States to refer legislative powers to
the Commonwealth, where if anything it is in fact a judicial power regarding riparian rights and
other rights, as the Framers of the Constitution pointed out, also referring to International law
provisions to be applied, and so it would not make one of iota difference if the Commonwealth of
30 Australia in that regard were to take over legislative powers as it would unlikely resolve any
current problems, such as “over-allocation” as Malcolm Turnbull already is on record to have
stated that he isn’t going to interfere with the “over allocation” of WATER, this underlining
that the Commonwealth of Australia not only ignored to exercise its available legislative powers
to deal with “reasonable use” of WATER but already has heralded it isn’t going to change it.
35 More then likely for political purposes as not to loose its political donations from big business.
The word “over allocation” means too much WATER being allocated! And, Malcolm Turnbull
is on record to have stated that this went on for about 50 years. Now, if the Federal Government
left it for some 50 years and still refuse to deal with the issue of “over allocation” then I view
that the issue is not to be taken away from what political use it can be as I have no doubt it is
40 already made a federal political football and Malcolm Turnbull has already started this with his
assurances not to stop “over allocation” of WATER. So, what is he intending to do if he had the
legislative power over WATER if he isn’t going to cut back on “over allocation” one may ask?
If large mining companies give million of dollars in political donations then more then likely
they too can continue their abuse of drinkWATER.
45 As the Framers of the Constitution made clear that whomever holds power over WATER also
hold the power over the price of land, industry, etc, as it all relies upon WATER.
Hence, I view it would be ill advised for any State to hand over legislative power regarding
WATER to the Commonwealth of Australia.
Next, we might see that Minister of the Crown of the Federal Government will get WATER
50 exemptions, as they get TAX exemption, and then they can legislate for themselves whatever
WATER use they desire at cost of others. It might be unconstitutional but we see that when it

comes to what is constitutionally appropriate or not, the Federal Government really couldn’t care
less as we see with the tax free incomes for their political mates, and others.
Therefore anyone should be forewarned that where the Federal Government (of whatever
political party) cannot even manage in a constitutional proper manner the legislative powers it
5 already has, then one would be foolish to give it more power.
We have seen with cases such as Vivian Alvarez Solon, how this woman was denied any legal
rights and yet there was no “responsible minister” held accountable for such gross power abuse.
And yet hundreds of others likewise were denied their constitutional rights of DUE PROCESS
OF LAW.
Dr. QUICK.-
The Constitution empowers the Federal Parliament to deal with certain external affairs,
among which would probably be the right to negotiate for commercial treaties with foreign
15 countries, in the same way as Canada has negotiated for such treaties. These treaties
could only confer rights and privileges upon the citizens of the Commonwealth,
because the Federal Government, in the exercise of its power, [start page 1753] could
only act for and on behalf of its citizens.
20 As such, if we are having a FREE TRADE AGREEMENT with the USA then surely we
should already have in place a treaty that Australians are conferred the same legal rights if
charged as any American has.
How on earth can you trade with any country that does not give equal rights to an Australian?
25 We have the David Hicks case that the Federal Government botched.
We have the unconstitutional/illegal invasion into the sovereign nation Iraq. We have the
illegal towing away of unseaworthy refugee boats, and numerous other problems existing with
the Commonwealth of Australia that it ought to be obvious that it should first gets its act together
before seeking further legislative powers for other issues/matters.
30 For the above and other material I have published or I am about to publish, in my forthcoming
book, I oppose any reference of legislative power to the Commonwealth of Australia.
Obviously with WATER having been privatised considerably, such as in NSW, even so the
Framers of the Constitution made clear that no one had ownership of WATER that was in a
35 river that flowed through different States, then being it the Murray Irrigation Limited or any
other, we seems to have a considerable problem already. Would the Commonwealth apply
constitutional limitations and declare that the Murray Irrigation Limited has no legal right to
claim or trade in “over-allocation” of WATER? Any future Federal Government merely has to
legislate as to “reasonable use” and it might wipe out, so to say, Murray Irrigation Limited
40 WATER trading altogether, as after all Malcolm Turnbull may make any pledge he likes, but in
the end it is the composition of the Federal Parliament that determines in future what will be
applicable, and what, if any, legislation will be enacted as to “reasonable use” of WATER that
might wipe out any WATER trading altogether.
What I have sought to show is that ignorance of how constitutional powers and limitations apply
45 may have caused considerable problems already and only a foul would want to continue on this
without first seeking to redress matters to ensure that at least it all has a constitutional valid basis.
In my view, as I have stated so often already, the Federal Government, and so also every
State/Territory, ought to have an OFFICE OF THE GUARDIAN, so that finally constitutional
50 powers and limitations are better known to all concerned. It makes it also fairer to companies that
they at least will now their legal basis and not could be caught off guard and may support

reference of legislative powers from the states to the Commonwealth of Australia only to
discover that by this they basically wiped themselves out of any further WATER dealings.
END QUOTE 070220 correspondence
5 .
QUOTE Chapter 012 Reference of legislative powers
Chapter 012 Reference of legislative powers
* Gary, what is this reference of legislative powers about?
10 **#** INSPECTOR-RIKATI®, read what I have quoted from the Hansard recorded debates
and then read what the Victorian Government (Jeff Kennett as Premier) did in regard of
Industrial Relation in 1996 and how all the States likewise did so in 1986 regarding children of
non-marriage and you may understand none of them understood what is constitutionally proper
and neither that they sought the approval of their citizens before legislating for a referral of
15 legislative powers.
* Do they need to?
**#** Well, they needed to do so for the Constitution and as is set out below States have no
20 legislative powers to give away their legislative powers without expressed consent by the
electors of that State, by way of State referendum.
* But the system of referendum doesn’t exist, does it?
25 **#** It does, as it was used in the first place to approve the Constitution Convention Bill and
as such became the precedent to establish that the parliament of a colony (now State) cannot
hand over legislative powers without expressed consent by the electors.
And, as you will find set out below, the States inserted that they can withdraw this reference of
legislative powers, and so clearly never understood how this reference of legislative powers
30 applied. This, as once it is referred and the Commonwealth has legislated upon it then it is
federal law and the States no longer then can legislate on that matter.
Therefore, the States never intended to give away, on a permanent basis that is, the children
legislative powers or the Victorian Government neither the Industrial Relations legislative power
and as such it was never constitutionally valid in that regard either.
35 As stated below
QUOTE
In fact, the Framers referred that the purpose of subsection 51(xxxvii) was one to enable
the Commonwealth to be the arbitrator in matters in dispute between the States, albeit not
involving all States. Hence, the Commonwealth Powers (Family Law---Children) Act
40 1986 is not such a “matter’ that is in dispute between 2 or more but not all States.
We then have the concoction of the Federal Courts (State Jurisdiction) Act 1999, which
purports to legally validate unconstitutional federal court Orders (Being it from the Family
Court of Australia and/or Federal Court of Australia.) Again, we have a clear
misconception about the function and positions of those Courts.
45
Likewise, the Commonwealth Powers (Industrial Relations) Act 1996 was beyond
legislative powers for the State of Victoria to refer to the Commonwealth of Australia as it
was not a “matter’ in dispute between two or more but not all States.
END QUOTE
50
the National Australasian Convention) (Chapter 33 of the CD)
Mr. DEAKIN.-
In this Constitution, although much is written much remains unwritten,
This means you have to check back to the Hansard records of the Constitution Convention
5 Debates as to find out what were the intentions of the framers of the Constitution and the
“principles” embedded in this Constitution.

10 Mr. HIGGINS.-The particular danger is this: That we do not want to give to the
Commonwealth powers which ought to be left to the states.

15 Mr. MCMILLAN.-
I hold-and every year of my political life has made it a more sacred principle to me-that the
less the Government do, except in acting as policemen in trade disputes, the better for the
community. I do not want to insert in this Constitution a provision which by implication
will show a trend of thought of a certain character, to which I need not further refer. I do
20 not want it to be presumed for one moment that we desire to give to the Federal
Parliament the right to interfere in trade disputes and in the ordinary business and
commerce of the country. The less the Government has to do with these things the
better, and the more clearly it is understood that the Government is not to interfere
excepting for the preservation of law and order the sooner these disputes will be likely
25 to end.
It also underlines the need for an OFFICE OF THE GUARDIAN so that everyone involved has
an ability to obtain relevant details/information regarding each and every Section of the
Constitution and its application.
30
Sub-section (35).-Matters referred to the Parliament of the Commonwealth by the
Parliament or Parliaments of any state or states, but so that the law shall extend only to the
35 state or states by whose Parliament or Parliaments the matters was referred, and to such
other states as may afterwards adopt the law.
Mr. DEAKIN (Victoria).-I wish to call attention to this sub-section, which, like several
others in this portion of clause 52, represents a power first conferred upon the Federal
Council, but which, as it appears to me, if allowed to remain in its present restricted form-
40 suitable enough as that may have been to the Federal Council-is altogether unsuitable to the
differing conditions of the Federal Parliament. In the original draft of the Federal Council
Bill the proposal was framed in clause 16 as follows:-
The Governors of any two or more of the colonies may, upon an address of the
Legislatures of such colonies, refer for the consideration and determination of the Council
45 any questions relating to those colonies or their relations with one another, and the Council
shall thereupon have authority to consider and determine by Act of Council the matter so
referred to it.
The draftsman who advised the Imperial Government altered that including it in section
15 of the Imperial Act constituting a Federal Council, where it forms the last part of

subsection (i). The first part of the sub-section gives the Federal Council legislative
authority in respect to the several matters following, and the clause before us, freely
translated, follows:-
Any other matter of general Australasian interest with respect to which the
5 Legislatures of the several colonies can legislate within their own limits, and as to
which it is deemed desirable that there should be a law of general application.
Now, that appears to be ample for all the legislation which the Federal Council could have
dealt with. That body has no Executive, has no Budget, and undertakes no expenditure.
That body is [start page 216] the mere creature of the colonies, is dependent upon them,
10 except within a very limited area, and, in fact, altogether for any expenditure it may be
necessary to incur. Now, during the discussion of the question of old-age pensions, when I
referred to the possibility of that matter being dealt with under this sub-section, I evoked a
comment from Sir John Downer, which called my attention in a particularly pointed way to
a present weakness of the sub-section in this respect. It may well be that some matters
15 referred by the several state Parliaments to the Federal Parliament, in order that common
legislation may be passed for one or more colonies, may require legislation involving some
expenditure-expenditure which must be undertaken in order to give effect to that
legislation. It might be for the ordinary machinery administration-the payment of salaries
of certain officers-or it might be the power to levy certain fees and collect certain charges;
20 or it might involve direct taxation; but in all such cases it appears to me that the present
sub-section may be inadequate. For instance, if reference be made to sub-section (3) of this
clause 52 it will be found that the Federal Parliament has only the power to raise money by
systems of taxation which shall be uniform throughout the Commonwealth. Consequently,
if any legislation referring to any less number of the colonies than the whole of the
25 colonies, and which involved any expenditure, was passed by the Federal Parliament,
although those colonies were willing to vote that expenditure, the Federal Parliament might
have no power to raise that money. The only possible means of the Federal Parliament
obtaining that power would be if it were conferred in the provisions of the referring statutes
passed by the referring colonies, but unless those provisions exactly agreed-and agreement
30 would be extremely difficult to arrive at-the probability is that the law would be
inharmonious and fail in its effect. I would suggest to the leader of the Convention that he
should consider whether there should not be such a modification of sub-section (3), which
provides for the raising of money by the Commonwealth, as would allow of a reference by
two or three colonies desiring to intrust the Federal Parliament with the task of framing
35 legislation for them, and enabling the Federal Parliament, if so called upon, to provide for
the raising of the necessary revenue in those colonies. That would be one means of meeting
the difficulty. Another means might be that when two or more colonies had determined,
under sub-section (35), to refer to the Commonwealth Parliament any matter which
required the raising of money from their citizens, it should be possible, for the
40 Commonwealth, in regard to those particular matters, to provide for the necessary taxation
to be levied in those colonies by the central authority, instead of leaving them to the very
difficult task of coming to an independent agreement among themselves as to all the details
of the method by which the money should be provided.
Mr. GLYNN.-Strike the sub-section out.

45 Mr. SYMON.-That is the best solution of the difficulty.
Mr. DEAKIN.-That may be so.
Mr. GLYNN.-We may have a conflict of laws under the sub-section.

Mr. BARTON.-Such laws can only apply to the referring states themselves.
Mr. DEAKIN.-They would not be, in the strict sense of the term, federal laws.
Mr. BARTON.-No, they would only apply to the states which referred the matters to the
Federal Parliament.
5 Mr. DEAKIN.-Exactly; but those laws can be adopted by the other states. If two or
three colonies join in requesting the Federal Parliament to pass a statute on a
particular matter applying only to those two or three colonies, and that law has been
enacted and proved to work well, the remaining colonies of the group may adopt it,
and finally [start page 217] you may have the Commonwealth in this position, that
10 every colony in the group has adopted, as far as it can adopt, that particular law,
which then ought to be a federal law. This contingency is perhaps provided for. That
being so, it becomes necessary for us to consider whether we should not also provide for
the other contingency. If all the states of the group except one, or if three of the larger
colonies, or any three of the colonies, required a common statute in regard to a particular
15 subject, and the administration of that statute involved the raising of money, the Federal
Government ought to be able to provide for the levying of that money under the same law
if so requested by those concerned.
Sir GEORGE TURNER.-Will you briefly restate the point?

Mr. DEAKIN.-My point is that by the requests of different colonies at different times
20 you may arrive at a position in which all the colonies have adopted a particular law, and it
is necessary for the working of that law that certain fees, charges, or taxation should be
imposed. That law now relates to the whole of the Union, because every state has come
under it. As I read clause 52, the Federal Parliament will have no power, until the law has
thus become absolutely federal, to impose taxation to provide the necessary revenue for
25 carrying out that law. Another difficulty of the sub-section is the question whether,
even when a state has referred a matter to the federal authority, and federal
legislation takes place on it, it has any-and if any, what-power of amending or
repealing the law by which it referred the question? I should be inclined to think it
had no such power, but the question has been raised, and should be settled. I should
30 say that, having appealed to Caesar, it must be bound by the judgment of Caesar, and
that it would not be possible for it afterwards to revoke its reference. It appears to me
that this sub-section, which is certainly one of the very valuable sub-sections of this clause,
affording, as it does, means by which the colonies may by common agreement bring about
federal action, without amending the Constitution, needs to be rendered more explicit. One
35 point more especially which needs to be rendered clear is whether, when we have this
federal action, there shall not be a federal means of providing for the necessary revenue
that may be required or for imposing the necessary charges under such legislation.
Sir JOHN DOWNER.-Is that not implied?

Mr. DEAKIN.-If it is implied, would it not be best to make it explicit? The parentage of
40 this clause, as I have shown-originating as it does in a body with practically no financial
power-casts a certain suspicion on that reading of it, although, of course, the provision
when embodied in this Act would have a different effect. Still, why not make it clear
whether we mean that, when the Federal Parliament has passed federal legislation for some
of the colonies, we shall allow that same legislation to deal with any necessary raising of
45 revenue from those colonies which may be required to give effect to the legislation?

Dr. QUICK (Victoria).-I think the point taken by my honorable friend (Mr. Deakin) is one
well worthy of the consideration of the Drafting Committee, and probably the difficulty to
which he has drawn attention could be obviated by some such provision as that which he
suggested. But this matter has struck me also from another point of view, and it seems
5 to me that the provision affords an easy method of amending the Federal
Constitution, without referring such amendments to the people of the various states
for their assent. Now, either when the state Parliaments have referred these matters to the
Federal Parliament, and the Federal Parliament has dealt with such matters, that becomes a
federal law, and cannot afterwards be repealed or revoked by the State Parliaments-that is
10 one position, and in that case, of course, the reference once made [start page 218] is a
reference for all time, and cannot be revoked, so that to that extent it becomes an
amendment of the states' Constitution, incorporated in and engrafted on the Federal
Constitution without the consent of the people of the various states. On the other hand,
if that be not so, and the states can, after making such reference, repeal such
15 reference, what is the result? You have a constant state of change-no guarantee for
continuity or permanence-in this class of laws, and this might lead to a great deal of
confusion and a most unsatisfactory state of things. My principal objection to the provision
is that it affords a free and easy method of amending the Federal Constitution without such
amendments being carried into effect in the manner provided by this Constitution.
20 Mr. BARTON.-I cannot understand how it gives an opportunity of amending the

Federal Constitution.
Dr. QUICK.-In this way. At present clause 52, which we are now discussing, deals with
the powers of the Federal Parliament. It defines those powers in specific terms, in specific
paragraphs. Very well. Then, if under this sub-section power be given to the state
25 Parliaments to refer other matters to the Federal Parliament, to that extent the powers of the
Federal Parliament are enlarged, and therefore there is an enlargement of the Constitution.
This enlarges the power of the Federal Parliament, and when a law is passed by the Federal
Parliament, it becomes binding on the citizens of the states the Parliaments of which have
made reference; and if these laws are binding, I say they become federal laws, and those
30 federal laws may be administered by federal courts. Consequently, these referred powers
become federal powers, and to that extent this becomes a means of amending the Federal
Constitution.
An HONORABLE MEMBER.-The state Parliaments may refer some subjects to the

Federal Parliament without the consent of the people.
35 Dr. QUICK.-True, the state Parliaments may refer some subjects to the Federal
Parliament without the consent of the people of the states-that is my point-and to that
extent the powers become grafted on the Federal Constitution in a manner directly different
from the mode provided by this Constitution.
Mr. BARTON.-You can make amendments in your Constitution without referring to the
40 people.
Dr. QUICK.-That is so, but there is a distinct provision here that there is to be no
amendment of the Constitution without first such amendment being passed by the Federal
Parliament, and then submitted to the people of the states, and there must be a majority of
the people and a majority of the states before such amendment can become law. In this case
45 also, I have to use an expression which has been frequently indulged in by Mr. Symon, that
another mischievous result will follow from this power of reference. Supposing a state
Parliament is troubled and bothered with an agitation upon a certain question-say, that of
old-age pensions-and the state wants to get rid of a troublesome problem, it may simply,
out of its inclination to get rid of the difficulty, pass a Referring Bill shunting the question
on to the Federal Parliament, and the matter may there be hung up on account of other
difficulties. Once a state has referred a matter to the Federal Parliament of course it
cannot deal with it itself.
5 Mr. BARTON.-And it cannot repeal the law referring the matter.
Dr. QUICK.-There seems to be a difference of opinion on that point. I myself agree

with the Premier of Victoria that there is power to repeal, and, consequently that the
power of reference is not an ultimate power; it may be repealed, and what is the
result? It would lead to a most unsatisfactory state of affairs. My view is that the sub-
10 section should be struck out altogether.
Mr. SYMON (South Australia).-I think we are greatly indebted to Mr. Deakin [start page
219] and Dr. Quick for raising this question. The only wonder is that it has not struck us at
an earlier stage of our proceedings how very mischievous-to repeat a word which has just
been attributed to me-this sub-section may possibly become. I do not know, whether a
15 state, after referring a particular subject of legislation to the Federal Parliament
could not revoke the reference. My own personal view is that it could. It could revoke
the reference, but if the Federal Parliament has acted upon that reference, and
legislated upon it, then I think that legislation becomes federal legislation, and could
not be revoked or interfered with in any way by the State. If, as Mr. Deakin has said,
20 they have appealed to Caesar, they must be bound by Caesar's decree, Caesar in this case
being the Federal Parliament. The law so passed by the Federal Parliament would
become federal law for all time until the Federal Parliament repealed it. Now, if the
state happened to change its mind on this particular matter, what would be the result? The
reference to the Federal Parliament may have been a mere political contrivance for the
25 moment, as Dr. Quick has pointed out, to get rid of some troublesome question. But if the
state at some future period desired to legislate on its own account, and to deal with
the matter, which perhaps was a matter of purely local concern, it would be faced
with another portion of the Constitution, which says that no state law shall prevail if
it is in conflict with the federal law. A majority in Parliament, in order to get rid of a
30 difficulty, might refer it to the federal authority, and then we might find subsequently the
people of the state hampered by the impossibility of their retracing their steps, and carrying
out legislation which they considered necessary and desirable. I think, myself, that the
better way would be to strike out this provision altogether. It is inconsistent, it seems to
me, with the foundation of our Federal Government. We declare here specific powers to be
35 intrusted to the Federal Parliament, and by those we should abide, except so far as the
matter is controlled by sub-section (36). It ought not to be competent for any state to get rid
of a troublesome matter of legislation by saying-"We will refer this to the Federal
Parliament." It is obvious that, as has been pointed out by Dr. Quick, this provision would
extend powers to the Federal Parliament to a degree which would depend upon the hazard
40 of the moment. Now we are doing all we can, by debating the matter day after day, to
secure that those powers may be as precise as possible, and be brought within the limits of
the necessities of the case. But here we are giving to any state the power of sending on to
the Federal Parliament, for debate and legislation, some matter which it is purely for
themselves to deal with, and I do not think we ought to put it in the power of states to
45 relieve themselves from their own responsibilities in legislation or administration by any
such easy contrivance as this might turn out to be. I think the provision is really in by
mistake. I was not aware until it was pointed out by Mr. Deakin, that it had its origin
in connexion with the Federal Council Act, though I know it exists there. It might be
applicable in that case, but it is not applicable to the Federal Government we are now
50 seeking to establish. I would also point out that sub-section (36) really gives a very wide
power in connexion with the exercise of legislative authority to the Federal Parliament, a
power which I fancy would, if it were desired to extend power to the Federal Parliament,
meet the case. Sub-section (36) enables the Federal Parliament to make laws with respect
to-
5 The exercise within the Commonwealth, at the request or with the concurrence of the
Parliaments of all the states concerned, of any legislative powers which can at the
establishment of this Constitution be exercised only by the Parliament of the United
Kingdom or by the Federal Council of Australasia.
[start page 220]

10 Mr. DEAKIN.-That is a different thing altogether.
Mr. SYMON.-I am not quite sure whether that is a desirable provision to leave in.
Mr. ISAACS.-It is much too large; I intended to call attention to it.
Mr. SYMON.-I think this matter was brought up before, and it is a much more serious
matter than honorable members might at the first glance be disposed to think. I believe it
15 would enable states, in a matter of purely local legislation, to refer the matter to the Federal
Parliament for it to deal with. I have not referred to the provisions of the Federal Council
Act, but I think the concluding words of sub-section (36), if left in at all, should certainly
be very carefully considered. I do not know what they mean or how extensive they may
be.
20 Mr. DOBSON.-Could you give any illustration of a matter which would be referred to
the Federal Parliament by one of the colonies?
Mr. SYMON.-Not of what would be referred, but of what might be referred. I will
choose one which it might be very proper for us to refer to the Federal Parliament-the
question of the disputed boundary between South Australia and Victoria. The reference
25 would probably be quite ineffective, as the Federal Parliament would not deal with a
subject of that kind at the invitation of one state.
Mr. BARTON.-If they did the settlement could only extend to that state.
Mr. SYMON.-But look at the invitation which this would give for the engendering of
heat, passion, and discussion in the Federal Parliament. Look at the difficulties that would
30 be raised on the part of the Federal Parliament in having a matter of that kind brought
under its notice at all. There might be other matters of social concern, and one was
mentioned by Mr. Deakin, that of old-age pensions.
Mr. DOBSON.-That would hardly come under this provision. The financial part of it
would operate against its being referred.
35 Mr. SYMON.-As Mr. Deakin has put it, supposing such questions were referred, how is
the Federal Parliament to deal with them without some enabling powers with regard to
finance?
Mr. OCONNOR.-If a state referred question of state finance it might be dealt with.
Mr. SYMON.-Does the honorable member say that that would be a desirable thing to
40 do?
Mr. BARTON.-Is it not for the people of the state to determine whether it is
desirable?
Mr. SYMON.-Is it desirable to shunt on to the Federal Parliament a power that we have
not settled in the Constitution? Would not this reduce the powers of the federal authority to
a mere fluctuating quantity? My view is that we should strike this provision out altogether,
and amend if necessary the succeeding subsection (36). We could then do whatever may be
5 desirable within proper limits.
Sir JOHN DOWNER (South Australia).-I cannot see any of the difficulties which Mr.
Deakin, Mr. Symon, and Dr. Quick anticipate in connexion with this sub-section. This, of
course, is to be an inelastic Constitution, which can only be altered after great thought and
with much trouble. We define what are to be the boundaries of the Constitution of the
10 Commonwealth. We leave everything else to the states. It may be that questions may
afterwards arise which concern one, two, or three states, but which are not
sufficiently great to require a complete revision of the whole Constitution, with all the
troublesome proceedings that have to be taken to bring about a reform. It would much
facilitate matters if these questions could be referred to the Federal Parliament.
15 Mr. DEAKIN.-It would not be an easy process. You know how hard it is to get even two
colonies to agree to anything.
[start page 221]
Sir JOHN DOWNER.-It would be easy compared with an alteration of the

Constitution.
20 Mr. DEAKIN.-It would not be too easy.
Sir JOHN DOWNER.-Nothing should be too easy. We have the power to alter the
Constitution, but it is a power that can only be exercised with great difficulty. We also
have a power of quasi-arbitration, which the Commonwealth Parliament can exercise in an
easier way, although not without some difficulty, at the request of one or more states. Now,
25 is not that a good principle? I do not think many honorable members will say it is not. It is
suggested that we are allowing the states to throw upon the Federal Parliament a
responsibility they ought to take themselves. My answer is that every state wants to
aggrandize itself, to increase its authority, and it will only be in very extreme cases that the
states will resort to this means of getting rid of a difficulty. In an extreme case, is there any
30 harm in having a comparatively easy method of reference, not to troublesome negotiations,
nor to the Imperial Parliament, but to the Federal Parliament.
Mr. BARTON.-It might be impossible to dispose of the matter excepting in that

particular way.
Sir JOHN DOWNER.-Yes.
35 Mr. OCONNOR.-Take a case of dispute regarding a boundary.
Sir JOHN DOWNER.-Yes, the cases might be infinite. Take a question of disputed
territory, for instance. What could be more proper than that Victoria, if she became
reasonable for once, should say-"Look here, we know we promised to do it; we know we
have broken our promises; we acknowledge our transgressions, and will refer the matter at
40 once to the Federal Parliament"? Who would blame her? Certainly not South Australia.
Even in connexion with the question of rivers some point might arise that might concern
two or three colonies, and that could not concern all the colonies. That, again, might be a
proper matter for reference, but it could not be a common matter of legislation in
respect of every state. I will now take the points Mr. Deakin makes. He doubts whether

this power of legislation will carry with it a power of raising the necessary money to give
effect to the legislation.
Mr. ISAACS.-The states themselves will determine that.
Sir JOHN DOWNER.-Yes, the honorable member has given the answer.
5 Mr. DEAKIN.-Read it with sub-section (3).
Sir JOHN DOWNER.-I do not think that sub-section affects the matter in the slightest
degree.
Mr. OCONNOR.-Sub-section (3) refers to the raising of money for the purposes of the
Commonwealth itself.
10 Sir JOHN DOWNER.-Yes, and it can, in my opinion, have no relation to this question.
When a matter is referred the Parliament of the Commonwealth will have unlimited powers
of legislation.
Mr. DEAKIN.-To the extent of the reference.
Sir JOHN DOWNER.-Exactly; but the parliament will be entitled to make a law
15 about it which will be as good as any other law. The only thing is that it will be limited
in its area of application. Within the limits of the reference, it could deal with finances or
any other question. I can see no difficulty at all in carrying out the sub-section in that
respect, and I do not think that it wants any addition. We have practically to consider this
from the point of view of a question of policy. Is it worth while to leave to the states a
20 power of referring disputed questions that may concern one or more, but may not
concern all? What possible difficulty can there be? It may be said that this should be left to
the people, but the Parliament can decide. This Bill, before it can go home and can assume
the form of an Imperial statute, will have to be submitted to a referendum of the people of
each colony. It is only after that has been done that it can be made an Imperial [start page
25 222] statute, and why should we not give this power of reference to the states if it is a
power that would work well? For my own part, I do not think the sub-section requires even
verbal amendment. It will work quite well as it is so far as machinery is concerned. In
regard to the principle, I think it is a very advisable power to confer, and I hope the sub-
section will be agreed to.
30 Mr. ISAACS (Victoria).-My honorable friend (Sir John Downer) has put in better
language than I could have employed many of the views I was going to present to the
Convention. The object of the sub-section I take to be this. The foregoing sub-sections deal
with matters upon which authority is to be given to the Federal Parliament to legislate with
regard to all the colonies. They are admittedly matters of common concern. Then it was
35 thought that there might be other matters that might turn out to be matters of
common concern, but that are not yet regarded as such or have not yet arisen in any
way. In the course of the existence of the Commonwealth questions may arise that we
do not foresee, and without any amendment of the Constitution the states may if they
choose refer them to the federal power. Or it may be that any two states, unable each of
40 them separately to legislate beyond their own boundaries, may ask that this power to
legislate may be given to them without the necessity to go to the federal authority. It is
perfectly plain that two separate states, even if they legislate in exactly the same
terms, cannot carry the effect of their laws beyond their own boundaries. There may
be a difficulty, political or otherwise, as to leaving it in the power of any one state to refer
45 to the Federal Parliament matters of purely local concern. If there be any objection on that

ground, I suggest that it can be got rid of by saying that this power shall be limited to
matters which may be referred by two or more states to the Federal Parliament. That, I
think, would obviate any of the difficulties which Mr. Symon has foreshadowed, and
would carry out what we really want. No state, so far as I can imagine, requires to refer to
5 the Federal Parliament the passing of any law that is to affect itself alone. But if it agrees
with another state that some law; not to be of universal application throughout the
Commonwealth, but to affect it and that other state alone, should be passed, power should
be given in some such clause as this to ask the Federal Parliament to enact that what both
states desire shall be of common application to them.
10 Mr. SYMON.-Could you put that in sub-section (36)?
Mr. ISAACS.-I do not wish to anticipate what I have to say upon sub-section (36). I
think that that sub-section requires amendment, and that it is too large for more reasons
than one. But in my opinion the object of sub-section (35) would be better obtained by
striking out the power of one state to refer its own purely local concerns to the
15 Legislature of the Federation, and by limiting this power to cases where two or more
states desire to be bound by the federal authority.
Mr. BARTON.-Does the honorable and learned member say that sub-section (36) is too
large? I would like to mention that we left out some restricting words because we thought
that the provision was restricted by the whole scope of the clause.
20 Mr. ISAACS.-Well, I do not wish to confuse the two sub-sections. I think that Mr.
Symon's objections will be met if we use the words matters referred to the Commonwealth
by the Parliaments of any two or more states." A state Parliament may say-"We will not
deal with this matter; we will refer it to the Federal Parliament." Some honorable members
may think that a shirking of responsibility. I do not attach any weight to that contention,
25 but I do not think anything is substantially gained by keeping in the provision.
Mr. BARTON.-If a state Parliament wants to shirk its responsibility it can fall back
upon the referendum.
[start page 223]
Mr. ISAACS.-With regard to the other point that a state may repeal a law, I do not agree
30 with that argument. If a state refers a matter to the Federal Parliament, after the
Federal Parliament has exercised its power to deal with that matter the state ceases to
be able to interfere in regard to it. Moreover, when the Commonwealth has passed a
law at the request of any Parliament or Parliaments, and the Parliament of a third
state adopts it, it adopts a Commonwealth law, and it requires the consent of the
35 Commonwealth to get rid of that law. In my opinion, there is no power of repeal with
the states, and I feel no doubt that I have read among the decisions of the United
States, one which is to the effect, although I cannot just now lay my hands upon it,
that when a state has, with the consent of Congress, made certain enactments the
power of Congress is required to repeal those enactments.
40 Mr. REID.-Otherwise the provision would be perfectly idle. A state would refer a matter
to the Commonwealth, and, not being pleased with the precise manner in which that matter
was dealt with, it would immediately repeal the law.
Mr. ISAACS.-Yes; the state might just as well pass the law for itself.
Mr. OCONNOR.-A law once passed under this provision becomes a federal law.
45 Mr. ISAACS.-Yes, and nothing less than the federal authority can get rid of it.
Mr. BARTON (New South Wales). With regard to the particular sub-section which we
have now in hand, I have not been brought to see that any dangerous power is given in it,
or that there is any reason for an alteration. Let us take first the suggestion of the honorable
and learned member (Mr. Deakin). The Federal Parliament can only deal with such matters
5 as a state or states refer to it. A state may refer to the Federal Legislature a certain subject
without referring, or expressly excepting from the reference, any financial dealing with that
subject. In such a case the Commonwealth could only legislate upon the subject so far as its
financial aspects were not concerned. If the whole subject were referred, not excepting
finance, the Commonwealth could legislate to the whole extent of the reference. I think that
10 the words used in the sub-section are ample for either case. The difference with regard to
sub-section(3)is this: It is plain that that sub-section refers only to the raising of money by
any mode of taxation for general Commonwealth purposes. Like all the rest of these sub-
sections, with the exception of one or two which contains special provisions, it concerns
matters relating to the peace, order, and good government of the Commonwealth," and the
15 word Commonwealth" means prima facie the whole Commonwealth. In this sub-section,
however, there are special words which prevent the law applying to the whole
Commonwealth, and these are the words quoted by the honorable and learned member (Mr.
Deakin):-
But so that the law shall extend only to the state or states by whose Parliament or
20 Parliaments the matter was referred, and to such other states as may afterwards adopt the
law.
It seems to me that if there is any raising of money intended by the states to be delegated
to the Commonwealth-and they can only delegate their legislative authority to a certain
extent, provided for by the Constitution-that will be expressed in the reference, or it can be
25 excluded from any reference. In the one case or the other the Commonwealth can only
proceed as far as the extent of the reference. Then there was the objection of the
honorable and learned member (Dr. Quick), that this provision affords an easy
method of amending the state Constitution without the use of the referendum. But at
the present time the state Constitutions do not provide for the use of the referendum. The
30 government of the states is by a majority of the representatives of the people, and it must
[start page 224] be constitutionally assumed that when a majority of the two Houses of
Parliament make a law the people speak through that law. If the people choose to speak
through a law made in this way, there is no evasion of responsibility when an appeal was
made to a superior authority for the settlement of a difficulty incapable of settlement by the
35 relations of two bodies at issue. This is not a restriction but an enlargement of the
legislative powers of the states, which I think is in the spirit of democracy, and one that we
should grant.
Mr. HOLDER (South Australia).-I want to ask the leader of the Convention a question,
his answer to which will influence my vote on the subject before us. The sub-section upon
40 which we are dealing and the following sub-section are the only ones which provide for an
extension of the powers of the Commonwealth. I have been looking up the clauses in
Chapter VIII., and I do not see that under them any extension of the powers of the
Commonwealth can be dealt with. I want to know whether I am right in supposing that
under these clauses no extension of the powers or scope of the Commonwealth would be
45 possible, because I think that under that chapter, if any alteration of the Constitution of the
Commonwealth is desired, the states, to obtain it, must first-have a law passed by the
Commonwealth Parliament? Now, suppose it is proposed to enlarge the power of the
Commonwealth, by placing under its control the administration of Crown lands. First of
all, the Federal Parliament would have to pass a law upon this subject, and that law might
50 be held to be ultra vires. There would be no power to submit anything to the electors
without Parliament first of all passing a Bill, which, however, would be from the outset
outside its power. I should like to know from the leader of the Convention whether my
view of this matter is correct?
Mr. BARTON (New South Wales).-What I understand my honorable friend (Mr.
5 Holder) to ask is this: Suppose it were desired that extra-legislative power than now exists
should be granted to the Commonwealth-as, for instance, to take under its control questions
relating to Crown lands, and so on-whether an alteration in the Constitution in that
direction would be ultra vires? Now, the Bill provides, in Chapter VIII., that the provisions
of the Constitution shall not be altered except in the following manner;" which, to my
10 mind, means that if the processes specified are adopted the provisions can be altered in any
way. I take the provision to mean that authority is given to the Commonwealth under the
processes here specified to alter this Constitution in any manner, so far as it deals with the
affairs of Federated Australia, and not with affairs outside the dominion of Australia.
Consequently, if it were proposed to add a legislative power of the kind suggested by Mr.
15 Holder, I take it that as Chapter VIII. provides first for the passage of the proposed
law by an absolute majority, and then for a referendum, the law would have no effect
unless the majorities of the several states agreed to it. So that not only the
Commonwealth but the states would have to agree to the passage of the law. Then any
objection to that law becoming a new part of the Constitution of the Commonwealth would
20 vanish; because, I think, so much authority is conceded by Chapter VIII.
Mr. KINGSTON (South Australia).-I think that the difficulty is that Chapter VIII. does
not give power for an amendment of the Constitution, except by implication, but simply
opposes limitations in the mode of the exercise of the power of amendment. I would
suggest to the leader of the Convention that we might add a clause permitting the alteration
25 of this Constitution, subject to the provisions of Chapter VIII. That would include
amongst the powers of the Parliament a power which is very necessary, and which it is no
doubt intended to give by the Bill, but which is not at present provided for as clearly as
might be.
[start page 225]

30 Mr. GLYNN (South Australia).-In connexion with the point raised by Dr. Quick that this
provision might lead to an amendment of the Constitution otherwise than under clause 121,
I would like to suggest that the reference would be as to a specific point. It might be to
settle a particular matter of legislation, but not a general power. But we are still in this
dilemma: That the state might, by referring the matter to the state Parliament,
35 deprive itself of the right of repeal, and thus take away the general power of
legislation from the state Parliament. As I understand, a state Parliament cannot at
present abrogate its own powers. It might pass a particular Act or it might repeal an
Act, but here the Parliament of the state is giving away some power without the
consent of the people of the state. We are giving power to the state Parliament to give
40 away their sovereign powers without the consent of their people.
Mr. DEAKIN.-To commit political suicide.
Mr. GLYNN.-That is really what it amounts to. It certainly requires serious

consideration.
The subsection was agreed to.
45 Sub-section (36)-

The exercise within the Commonwealth, at the request or with the concurrence of the
Parliaments of all the states concerned, of any legislative powers which can at the
establishment of this Constitution be exercised only by the Parliament of the United
Kingdom or by the Federal Council of Australasia.
5 Mr. BARTON (New South Wales.)-I might mention as to this sub-section that there is a
difference between its language and the language of the corresponding sub-section in the
Bill of 1891. The difference is this:-In the Bill of 1891, after the words legislative powers"
there came the words with respect to the affairs of the territory of the Commonwealth, or
any part of it." It was considered unnecessary to retain those words, because the whole
10 scope of the legislative authority is that the legislation should be for the peace and good
government of the Commonwealth itself. Inasmuch as the Commonwealth cannot make
any laws except for the peace, order, or good government of the Commonwealth itself,
we thought that it could not make laws except with respect to the affairs of the
territory of the Commonwealth or any part of it.
15 Mr. KINGSTON.-Will this give power to legislate with reference to a part only?
Mr. BARTON.-Only to the extent of the reference made. It must be a matter referred
with the consent of the Parliament, so that it would only apply to the extent of the reference
made.
20 Re; No. 92, 1986 Commonwealth Powers (Family Law–Children) Act 1986
It relates to “a state Parliament” and “referendum”, as such a referendum is needed to accept a

State to have accepted it reference of Power.
Also;
25 I take it that as Chapter VIII. provides first for the passage of the proposed law
by an absolute majority, and then for a referendum, the law would have no
effect unless the majorities of the several states agreed to it. So that not only the
Commonwealth but the states would have to agree to the passage of the law.
30 Albeit, a State can adapt a Commonwealth law that is validly enacted within the Commonwealth
Constitution, the reference of power however is limited, where it is to create legislative powers
that doesn’t exist previously “So that not only the Commonwealth but the states would have
to agree to the passage of the law.”. As such, it is not an issue for the Commonwealth to
legislated on any matter referred to it unless by way of referendum this was accepted. The
35 Victorian purported reference of powers Commonwealth Powers (Family Law- Children) Act
1993 No.92 of 1986 the Mutual Recognition (Victoria) Act 1993 were never approved by way
of referendum and are NOT AT ALL part of the Constitutional powers of the Commonwealth
albeit so claimed in prints of the Commonwealth Constitution.
40 On 7 and subsequently on 21 October 1986 the Legislative Council passed the Commonwealth
Powers (Family Law - Children) Act 1986 No 92 which was Gazetted on 16 December 1986
and came into force on 28 October 1987. Version 010 being:
s. 4
45 The Governor in Council may, at any time, by proclamation published in the
Government Gazette, fix a day as the day on which the reference under this Act shall
terminate.
Mr. DEAKIN.-

Another difficulty of the sub-section is the question whether, even when a state has
referred a matter to the federal authority, and federal legislation takes place on it, it
has any-and if any, what-power of amending or repealing the law by which it referred
the question? I should be inclined to think it had no such power, but the question has
5 been raised, and should be settled. I should say that, having appealed to Caesar, it
must be bound by the judgment of Caesar, and that it would not be possible for it
afterwards to revoke its reference.
Version No. 010

10 Commonwealth Powers (Family Law--Children) Act 1986
Act No. 92/1986
Version incorporating amendments as at 14 July 1997
This Version incorporates amendments made to the Commonwealth Powers
(Family Law--Children) Act 1986 by Acts and subordinate instruments.
15
The Victorian Parliament has PURPORTEDLY amended this legislation of the Commonwealth
Powers (Family Law - Children) Act 1986 No 92 totally unaware what the true reference of
legislated powers possibly could mean! It purports to refer legislative powers and withdraw it as
it please! It was however never accepted by any referendum on the first place!
20
GLEESON J as a judge in the corium in of the Full Court of the HIGH COURT OF
AUSTRALIA in HCA 27 of 1999 under point 31 had this to say:
“..I held that State Parliaments had no power to vest State Judicial power in
25 federal courts created by the Parliament of the commonwealth and that the
parliament of the Commonwealth had no power to consent to State Parliaments
vesting State Judicial power in the federal courts.”
I view, that likewise the States have no constitutional powers to vest the Commonwealth with
30 legislative powers or the commonwealth to consent to accept legislative powers within Section
51(xxxvii) of the Commonwealth constitution unless the State constitution provides for such
reference of legislative powers and also such reference of legislative powers has been approved
in accordance of the provisions of Section 128 of the Commonwealth Constitution by way of
referendum, as well as that both the States (and so those voting in the referendum) and the
35 Commonwealth have been aware that this reference of legislative powers is one of a permanent
nature, after which the relevant State referring the legislative powers for ever has lost future
legislative powers either to rescind, amend or otherwise alter any legislation the Commonwealth
may provide upon a successful referendum.
40 The Victorian Constitution under s16 provides that “The Parliament shall have power to make
laws in and for Victoria in all cases whatsoever.” As such, this clearly exclude any “reference”
of legislative powers from the State of Victoria to the Commonwealth! After all, to refer
legislative powers means the State no longer has it, and that breaches the provisions of s16!
That albeit the Victorian Constitution refers to the Australian Citizenship Act 1948, no specific
45 legislation appears to be in place as to formally adopt this Commonwealth legislation.
50 question-and the Constitution gives it no power to legislate in regard to that question-
the Ministers for the time being in each state might say-"We are favorable to this law,
because we shall get £100,000 a year, or so much a year, from the Federal Government as a
subsidy for our schools," and thus they might wink at a violation of the Constitution, while
no one could complain. If this is to be allowed, why should we have these elaborate
5 may unanimously agree? Why have this provision for a referendum? Why consult the
10That on 7 and subsequently on 21 October 1986 the Legislative Council passed the Commonwealth
Powers (Family Law - Children) Act 1986 No 92 which was Gazetted on 16 December 1986
and came into force on 28 October 1987. Version 010 being:
Commonwealth Powers (Family Law---Children) Act 1986

15 Version No. 010
Commonwealth Powers (Family Law--Children) Act 1986
Act No. 92/1986
Version incorporating amendments as at 14 July 1997
TABLE OF PROVISIONS
20 Section Page
THIS PAGE IS TO BE MASKED
Version No. 010
Commonwealth Powers (Family Law--Children) Act 1986
Act No. 92/1986
25 Version incorporating amendments as at 14 July 1997
The Parliament of Victoria enacts as follows:
1. Purpose
The purpose of this Act is to refer to the Parliament of the Commonwealth certain
powers relating to Family Law.
30 2. Commencement
This Act comes into operation on a day to be proclaimed.
3. Reference of certain matters relating to children
(1) The following matters, to the extent to which they are not otherwise included in
the legislative powers of the Parliament of the Commonwealth, are referred to the
35 Parliament of the Commonwealth for a period commencing on the day on which this
Act comes into operation and ending on the day fixed, pursuant to section 4, as the
day on which the reference under this section will terminate, but no longer namely--
(a) the maintenance of children and the payment of expenses in relation to children or
child bearing;
40 (b) the custody and guardianship of, and access to, children.
(2) The matters referred by sub-section (1) do not include the matter of the
taking, or the making of provision for or in relation to authorizing the taking, of
action that would prevent or interfere with--
(a) a Minister of the Crown, an officer of the State, an officer of an adoption agency
45 approved under a law of the State, or any other person or body having or acquiring
the custody, guardianship, care or control of children under a provision of an Act
specified in the Schedule; or
(b) the payment of maintenance in respect of children who are in such custody,
guardianship, care or control; or
50 (c) the jurisdiction of the Supreme Court to make orders in respect of children
who are in such custody, guardianship, care or control; or

(d) the jurisdiction of a court of the State, under a provision of an Act specified in the
Schedule, to make orders, or take any other action, in respect of--
s. 3
(i) the custody, guardianship, care or control of children; or
5 (ii) access to children or the supervision of children.
(3) In the preceding provisions of this section--
(a) the references to children shall be construed as references to persons under the age
of 18 years; and
(b) the references to the maintenance of, and the payment of expenses in relation to,
10 children shall be construed as including references to the maintenance of, and the
payment of expenses in relation to, persons who have attained that age and have
special needs in respect of maintenance or expenses by reason of being engaged in a
course of education or training or by reason of a physical or mental handicap; and
(c) the references to an Act specified in the Schedule shall be read as references to
15 that Act as amended and in force from time to time, and as including a reference to
any Act or Acts replacing that Act and as amended and in force from time to time.
4. Termination of reference
s. 4
The Governor in Council may, at any time, by proclamation published in the
20 Government Gazette, fix a day as the day on which the reference under this Act shall
terminate.
__________________
Sch.
amended by Nos 16/1987
25 s. 4(3)(Sch. 1 item 6), 56/1989
s. 286(Sch. 2 item 3).
SCHEDULE
Sch.
Section 3
30 Children and Young Persons Act 1989
Community Services Act 1970
NOTES
Notes
35 Minister's second reading speech--
Legislative Assembly: 17 September 1986
Legislative Council: 7 October 1986
The long title for the Bill for this Act was "A Bill to refer to the Parliament of the
Commonwealth certain matters relating to Family Law.".
40 The Commonwealth Powers (Family Law--Children) Act 1986 was assented to on
16 December 1986 and came into operation on 28 October 1987: Government Gazette
28 October 1987 p. 2925.
Notes
45 This Version incorporates amendments made to the Commonwealth Powers
(Family Law--Children) Act 1986 by Acts and subordinate instruments.
-------------------------------------------------------------
Community Services Act 1987, No. 16/1987
Assent Date: 12.5.87 Commencement Date: S. 4(3)(Sch. 1 item 6) on 22.2.89:
50 Government Gazette 22.2.89 p. 386 Current State: This information relates only to
the provision/s amending the Commonwealth Powers (Family Law--Children) Act
1986 Children and Young Persons Act 1989, No. 56/1989
Assent Date: 14.6.89 Commencement Date: S. 286 on 31.1.91: Special Gazette (No.
9) 31.1.91 p. 2; Sch. 2 item 3 on 30.9.92: Government Gazette 26.8.92 p. 2470
Current State: This information relates only to the provision/s amending the
Commonwealth Powers (Family Law--Children) Act 1986 ----------------------------
5 ---------------------------------
Notes
No entries at date of publication.
10 The State of Victoria (as did other States) legislated for the Commonwealth Powers (Family
Law---Children) Act 1986. This purportedly giving legislative powers within subsection
51(xxxvii) of the Commonwealth of Australia Constitution to the Commonwealth. My case
before the High Court of Australia is one setting out that the framers of the Commonwealth
Constitution Bill 1898 made it very clear that not only could subsection 51(xxxvii) not be used
15 for this, but also unless there is a referendum to approve of such reference of legislative powers it
would remain ULTRA VIRES. Further, any matter validly referred to within the provisions of
subsection (xxxvii) would become “federal law”, and be beyond State legislation from then on,
once the Commonwealth has legislated upon it. The Commonwealth Powers (Family Law---
Children) Act 1986 purports to be valid until the Governor is to make a proclamation otherwise,
20 etc. Clearly, this underlines that the State of Victoria never had any concept what subsection
51(xxxvii) stood for. Once a reference of power has been referred to the Commonwealth in a
valid manner, then once the Commonwealth legislate upon this, the State lost any legislative
powers upon this matter. Further, the Commonwealth could not act upon any validly referred
matters (within subsection 51(xxxvii) ) where this required expenditure, as the Commonwealth is
25 not permitted to fund such matters out of Consolidated Revenue. As such, any reference of
powers that were to incur cost to be dealt with, would have to include an additional provisions
for the Commonwealth to levy a special charge against the State for funding this. Again the
Framers made clear that subsection 51(iii) as to taxation) could not be used for this. Subsection
51(iii) is to fund Commonwealth matters for the whole of the Commonwealth, and not for
30 particular State related matters that were referred to by a particular State.
4. Termination of reference s. 4 The Governor in Council may, at any time, by

proclamation published in the Government Gazette, fix a day as the day on which the
reference under this Act shall terminate.
35
The Framers of the Constitution made clear, that once the Commonwealth had acted upon any
legislation, then the state had no further legislative powers to deal with this. Hence, any
purported termination of reference could not apply.
40 In fact, the Framers referred that the purpose of subsection 51(xxxvii) was one to enable the
Commonwealth to be the arbitrator in matters in dispute between the States, albeit not involving
all States. Hence, the Commonwealth Powers (Family Law---Children) Act 1986 is not such a
“matter’ that is in dispute between 2 or more but not all States.
45 purports to legally validate unconstitutional federal court Orders (Being it from the Family Court
of Australia and/or Federal Court of Australia.) Again, we have a clear misconception about the
function and positions of those Courts.
Likewise, the Commonwealth Powers (Industrial Relations) Act 1996 was beyond legislative
powers for the State of Victoria to refer to the Commonwealth of Australia as it was not a
50 “matter’ in dispute between two or more but not all States.

WITHOUT PREJUDICE
Mr Steve Bracks, Premier of Victoria 1-7-2003
Parliament House
Spring Street
5 Melbourne Ref; STATE SOVEREIGNTY, etc.
Fax 03 96515054
AND TO WHOM IT MAY CONCERN:
Sir,
Hereby I request you to clarify the position of the State of Victoria about the purported
10 Australia Act 1986.
This letter doesn’t intend to go into reams of paper to set out all legal issues, as this already is
done before the High Court of Australia in M114 of 2001, M32 of 2003, M40 of 2003, M40 of
2003 and M80 of 2003 extensively.
15 However, The Full Court of the High Court of Australia is due to hear in October 2003 the
matter of M114 of 2001.
The matter is one where I contest the validity of the purported 10 November 2001 federal
election. In the process of it, I contest the validity of the purported Australian Act 1986. This,
20 albeit I am aware of the High Court of Australia ruling in Sue v Hill as to hold that the Australia
Act is a valid Act.
Albeit I am not a lawyer, never had any formal education in law, English is not my native
language and neither did I have any formal education in the English language, I am making
25 known that judges of the High Court of Australia simply don’t know what they are talking about
and that the States neither know what they are doing.
This may seem to be an absurdity to claim, but lets give an example.
The State of Victoria (as did other States) legislated for the Commonwealth Powers (Family
30 Law---Children) Act 1986. This purportedly giving legislative powers within subsection
51(xxxvii) of the Commonwealth of Australia Constitution to the Commonwealth. My case
before the High Court of Australia is one setting out that the framers of the Commonwealth
Constitution Bill 1898 made it very clear that not only could subsection 51(xxxvii) not be used
for this, but also unless there is a referendum to approve of such reference of legislative powers it
35 would remain ULTRA VIRES. Further, any matter validly referred to within the provisions of
subsection (xxxvii) would become “federal law”, and be beyond State legislation from then on,
once the Commonwealth has legislated upon it. The Commonwealth Powers (Family Law---
Children) Act 1986 purports to be valid until the governor is to make a proclamation otherwise,
etc. Clearly, this underlines that the State of Victoria never had any concept what subsection
40 51(xxxvii) stood for. Once a reference of power has been referred to the Commonwealth in a
valid manner, then once the Commonwealth legislate upon this, the State lost any legislative
powers upon this matter.
Further, the Commonwealth could not act upon any validly referred matters (within subsection
51(xxxvii) ) where this required expenditure, as the Commonwealth is not permitted to fund such
45 matters out of consolidated Revenue. As such, any reference of powers that were to incur cost to
be dealt with, would have to include an additional provisions for the Commonwealth to levy a
special charge against the State for funding this. Again the framers made clear that subsection
51(iii) as to taxation) could not be used for this. Subsection 51(iii) is to fund Commonwealth
matters for the whole of the Commonwealth, and not for particular State related matters that
50 were referred to by a particular State.

4. Termination of reference s. 4 The Governor in Council may, at any time, by
proclamation published in the Government Gazette, fix a day as the day on which the
reference under this Act shall terminate.
5 The framers of the Constitution made clear that once the Commonwealth had acted upon any
legislation, then the state had no further legislative powers to deal with this. Hence, any
purported Termination of reference could not apply.
In fact, the framers referred that the purpose of subsection 51(xxxvii) was one to enable the
10 Commonwealth to be the arbitrator in matters in dispute between the States, albeit not involving
all States. Hence, the Commonwealth Powers (Family Law---Children) Act 1986 is not such a
“matter’ that is in dispute between 2 or more but not all States.
15 purports to legally validate unconstitutional federal court Orders (Being it from the Family Court
of Australia and/or Federal court of Australia.) Again, we have a clear misconception about the
function and positions of those Courts.
I may make a notation that the Hansard discloses that the Minister for small business did indicate
20 that there could be a legal challenge to the validity of this act and that it was designed to prevent
this. I consider it an utter disgrace that those to represent the people of Victoria set to undermine
the electors rights.
Further, the Act Interpretation Act 1980 of Victoria does include the Magan Carta rights (such as
judgement by once peers) and other provisions. Hence, any federal court order conducted under
25 federal law cannot be valid in the State of Victoria. Indeed, unconstitutional federal court orders
can never be made valid by a State! Anyone seeking to claim so is no less then a complete idiot!
The federal courts cannot operate unless they conduct litigation in a State according to State laws
to enforce Commonwealth law. As such, the Family Court of Australia operating under federal
30 litigation procedures and actually refusing to apply State laws for litigation are in breach of
Section 118 of the Commonwealth of Australia Constitution. The framers made clear, that the
Commonwealth has no constitutional powers to enforce its own laws, as it was up to the State
Courts to enforce them if they desired to do so or to use JURY NULLIFICATION if they held
the Commonwealth law was oppressive or otherwise undesirable for that particular State.
35
When called for duty service, I noticed that the jury is NOT advised of their right to having the
option of JURY NULLIFICATION, and as such, every conviction by a jury could be
overturned upon the ground that the jury had not been appropriately instructed as to their rights.
Albeit I did make a complaint , in person, to the County court at the time of my attendance for
40 jury service, I was told that it was for the judge to do so. Yet, we were shown a video that
purported to show what a jury was about, but it concealed the fact of the right of JURY
NULLIFICATION.
The Australian Industrial Relations Commission unconstitutionally dealing with matters of

45 apprentices, is another one of numerous unconstitutional conduct.
Back to the purported Australia Act 1986. if one spend as much time reading Hansards of the
creation of the Commonwealth Constitution Bill 1898, then one can, so to say, basically eat
and breath what the framers where on about. It is for this, that when I read something, a warning
50 light goes off within me that it is all constitutional wrong. All I then do it to trace back what I
read and there it is the evidence that it is unconstitutional.

The framers made clear that the Commonwealth of Australia would remain a part of the empire,
but it would be neither a republic or a monarchy. The framers made clear that the Constitution
would not permit the Commonwealth to alter the prerogative unless there would be first a
referendum to amend the Constitution to give such powers.
5 Further, the framers made clear that the Commonwealth could not use subsection 51(xxxvii) to
give it self constitutional powers it didn’t have. Barton (the second Prime Minister of Australia,
albeit generally referred to as being the first Prime Minister of Australia) made clear that unless
the reference of legislative powers was adopted not just by the Commonwealth but was approved
by way of referendum by the majority of electors in the majority of States, the reference would
10 be ULTRA VIRES.
As such, the purported Australian Act 1986 remains ULTRA VIRES.

The framers also made clear that any referendum couldn’t be backdated. As such
unconstitutional legislation remained to be so.
15
For example, lets have a look at some of the content of the purported Australia Act 1986.
The original part of the purported Australia Act 2(2) has as part;
20 It is hereby declared and enacted that the legislative powers of the Parliament of each State
include power to make laws for the peace, order and good government of that State that
have extra-territorial operation.
Now, suppose the Commonwealth amend this to;

25
It is hereby declared and enacted that the legislative powers of the Parliament of each State
are vested in the Commonwealth of Australia, and include for the Commonwealth of
Australia to grant limited power to the Parliament of each State to make laws for the
peace, order and good government of that State that have extra-territorial operation.
30
So now you have it, that unless the Commonwealth provide for certain legislative powers the
States have lost all legislative powers.
It must be clear that the Commonwealth by this purported Australia Act 1986 would have all the
35 powers to abolish the States. After all, the Australia Act 1986 being a federal law, over which the
States have no further powers.
If the commonwealth were to succeed to undermine the powers of the Senate, as to have joint
sittings without first needing to go to the people for a double dissolution, then it could basically
40 alter the purported Australia Act 1986 willy nilly, and by this abolish the States. After all, the
States have made themselves subject to federal law to be existing! They have given up their
sovereign rights they had prior to and at the time of Federation.
The Victorian Constitution Act 1975 being a Act of Parliament of the State of Victoria, therefore
45 could be abolished by the Commonwealth without the State of Victoria having any legislative
powers to do otherwise.
Just look at the con-job of the 1967 referendum that was arguable to give Aboriginals equal
rights. If one were to consider Kartinyeri v The Commonwealth [1998] HCA 22 (1 April 1998)
50 then the High Court of Australia portrays that the original version of the Commonwealth of
Australia Constitution (prior 1967 referendum) was bias against Aboriginals.

If anything, this just shows the incompetence of the judges to understand what the Constitution
really stands for!
Sure, the Commonwealth passed in 1909 a law for “white only” electors arguing that Section 30
of the Commonwealth of Australia Constitution gave that right, and the High Court of Australia
5 approved this and also later argued that Section 41 of the Constitution no longer was a valid
section as the people that were alive at the time of federation had died long ago and so the
application of this section 41, the truth is that again the High Court of Australia was giving utter
and sheer nonsense.
The framers made clear that section 30 of the Constitution would be subject to Section 41!
10 Further, lets see what Barton stated at the closure of the Constitutional Convention!
Hansard 17-3-1898
Mr. BARTON.-
15
This Bill also contains a provision in favour of electors, which is altogether absent from the
Bill of 1891; that is, a provision for the protection of the voting right, when the right has
been granted, so that no adult person who, at the establishment of this Constitution, or
[start page 2468] at any time afterwards, acquires the right to vote for the Legislative
20 Assembly in his own colony or state can be deprived of that right by any law passed
by the Federal Parliament.
Did you notice the wording “or at any time afterwards, acquires the right to vote”
The framers made all along clear that the Commonwealth would have no constitutional powers to
25 deny a elector of a State the political rights to vote in a federal election! As such, the right of
Aboriginals qualified to vote in State elections were secured!
Now have a look at the application of subsection 51(xxvi) by any kind of legislation in regard of
Aboriginals since the 1967 referendum;
30
Hansard 3-3-1898
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.
35 Dr. QUICK.-That refers to special races.
Mr. BARTON.-But if he is under any disability under any regulation of the [start page
1787] Commonwealth he would cease to be a citizen, however slight that disability might
be. I doubt whether the honorable member intends that. There is power by law to regulate
the people of any race requiring special laws. There may be some purely regulative law
40 passed, not imposing any special restriction on any person of that kind who may be a
subject of the Queen. That regulation, if it were of the mildest character, under this
definition, would deprive him of his rights.

45 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?

What is clear is that the Aboriginals and so neither the entire electorate of the Commonwealth
were ever advised that any legislation in relation to Aboriginals would cause the loss of their
citizenship! So their political rights to be an elector an to be a Member of Parliament!
5 It might be stated that subsection 51(xxvi) was intended to “alien” “coloured race”, as to control
their doings, such as chines gold mining in Victoria, the Afghans selling in Tasmania, etc but
then the Commonwealth could only make laws applicable to the entire Commonwealth, not for a
particular State.
What the framers did, was referring to nationalities and upon that basis inserted subsection
10 51(xxvi) of “race” and referring to nationalities as being a race! Afghans clearly is a nationality
identification, not a race. To the framers, the identification of a nationality was refereed to as
being a “race”. Albeit, when dealing with Aboriginals, they sought to avoid this confusion by
excluding them of subsection 51(xxvi) as well as to protect the Aboriginal rights to be considered
equally as other Australians.
15
Extensive reading does indicate that the framers had misconceptions about what a “race” stood
for. It referred to “Chinese”, even those born in Australia and having Australian nationality, to be
“Chinese”. However, if it were to have related to a Chinese national that was “Caucasian” then
the framers clearly didn’t seem to apply this, as the body of their debates seem to indicate. They
20 had this “white only” racist attitude in general and as such their references were to Afghans and
Chines but to “coloured race’s, which signify that they were basically against “coloured races”
not a particular nationality, albeit they generally referred to this.
What was achieved with the 1967 referendum was that it removed the protection of Aboriginals,
25 and caused more harm then good, as set out in my books.
Still, the problem existing is that “technically” Aboriginals lost the right of citizenship of the
Commonwealth and so their federal political rights, albeit not their State citizenship or their State
political rights.
30
The Commonwealth has no constitutional powers to grand State citizenship or to interfere with
it, but could in effect deny Australian citizenship by invoking any legislation within subsection
51(xxvi) for any matter, as it then would cause AUTOMATICALLY the lost of Australian
citizenship.
35
It ought to be clear that Australian citizenship has got nothing to do with Australian nationality or
with naturalization. This to has been set out considerable before the High Court of Australia. The
framers made clear that unlike the USA version, they didn’t want to follow, the Commonwealth
would have no constitutional powers to define/declare citizenship!
40
Back to the purported Australia Act 1986, it ought to be clear that this Act was never validly
enacted for commonwealth purposes and remains ULTRA VIRES. As is the Australian
Citizenship Act 1948.
45 The more I research constitutional matters the more I discover is wrong with the way it all is
applied. Why on earth the State of Victoria squandered its sovereignity as to be subject to
Commonwealth law, and in fact risk the Commonwealth using this power to abolish the States all
together is beyond me.
50 However, I have received calls that the Constitution Act 1975 of the State of Victoria is
unconstitutional, and this might, so to say, be my next port of call.

In my view, a “Constitution” is not something that can willy nilly be altered by a Act of
Parliament, as then it is hardly a Constitution.
I may indicate that the above matters are canvassed extensively in the following books;
5
INSPECTOR-RIKATI® and the BANANA REPUBLIC AUSTRALIA
Dictatorship & deaths by stealth, Preliminary book edition on CD
ISBN 0-9580569-3-5
And
10 INSPECTOR-RIKATI® & There is no government to go to war.
A book on CD About Legal Issues Confronting Australia
ISBN 0-9580569-5-1
Those books relies extensively upon Hansard quotations to back up the arguments of the Author.
15 Including that Victoria has basically no electors at all! That is another long story, set out in the
books.
My request is, that the State of Victoria establish a committee, that will investigate the
numerous complaints and other issues raised by me in my books and report back to the
20 Parliament of Victoria. So that at least the State of Victoria will seek to redress matters as a
matter of urgency, before it could be too far gone to rectify matters.
Again, this correspondence cannot set out all matters in details, and is merely intended to give
some indication that there are real problems that need urgent attention.
25 Awaiting your response and cooperation,
G. H. SCHOREL-HLAVKA

Committee Secretary, Senate Legal and Constitutional Committee 15-11-2005
Phone +61 2 6277 3560 Fax +61 2 6277 5794, legcon.sen@aph.gov.au
Ref; SUBMISSION Industrial Relations bill, etc AND TO WHOM IT MAY CONCERN
35
Sir/madam,
Due to legal proceedings, and so to say, not wishing to show my hands too early, I
have first filed my documents in court (today), and now will disclose what I am on about.
It is my submission that the Commonwealth of Australia Constitution Act 1900 (UK) is and
40 remains a British legislation. It is my submission, that it was shown that British law are subject to
the European Union legislative provisions, and for this the matters referred to in the Aggregate
Industries UK Ltd., R (on the application of) v English Nature and & Anor [2002] EWHC 908
(Admin) (24th April, 2002) case in regard of compliance with The European Convention for
the protection of Human Rights and Fundamental Freedoms (“the ECHR”) also is and
45 remains applicable to australian law. It is also my submission, that Judgments - Mark
(Respondent) v. Mark (Appellant) OPINIONS OF THE LORDS OF APPEAL for judgment
IN THE CAUSE, SESSION 2005-06 [2005] UKHL 42 on appeal from: [2003] EWCA Civ 168
relates to the birth rights of a person. (including who’s parents are aliens).
Because we do not have the Henry XIII system in place, to allow a Government to amend
50 legislation, and neither have the implied repeal system in place (where legislation subsequently
enacted implied repeal of any earlier legislation that is contradictory to the new legislation), for

so far it is not a constitutional legislation, then the older legislation is deemed repealed, we have
that any older legislation remains in force.
While the The European Convention for the protection of Human Rights and Fundamental
Freedoms (“the ECHR”) cannot repeal the Constitution, it does however apply to any legislation
5 (sub-legislation of the Constitution) where not conflicting with the Constitution.
Meaning, that any so called Australian Industrial Relations legislation will be subjected to the
provisions of The European Convention for the protection of Human Rights and
Fundamental Freedoms, this irrespective we may not be directly part of the European Union.
10 END QUOTE 15-11-2005 CORRESPONDENCE

WITHOUT PREJUDICE
Premier Mr Steve Bracks of the State of Victoria 31-12-2006
15 Parliament House, Fax 03 96515054
steve_bracks@parliament.vic.gov.au Ref; LAD06/9629 D06/12795 OFFICE
OF THE GUARDIAN
Steve,
20 Thank you for the correspondence of GRAHAM MCLENNAN
Manager, Parliament and Correspondence, Cabinet Secretariat forwarded on your behalf, as
reproduced below;
QUOTE
From
DP&C <dp&c@dpc.vic.gov.au>
:
[ add to contacts ]
To: schorel-hlavka@schorel-hlavka.com
Cc:
Date
Thursday, December 28, 2006 01:50 pm
:
Subj
OFFICE OF THE GUARDIAN, WATER MANAGEMENT
ect:
LAD06/9629
D06/12795
Mr Gary Schorel-Hlavka
schorel-hlavka@schorel-hlavka.com
Dear Mr Schorel-Hlavka
OFFICE OF THE GUARDIAN, WATER MANAGEMENT

Thank you for your email of 27 November 2006 to the Premier.
The issues you have raised fall within the portfolio responsibility of
several Ministers. Therefore, I have referred your email to several
departments for consideration as follows:
§ Department of Justice
· Attorney-General regarding the Office of the Guardian, 8684 0000;
§ Department of Sustainability and Environment,
· Minister for Water, Environment and Climate Change regarding water
management, 9655 6666.
Should you require further information regarding this correspondence, you

may contact the Departments directly on the above telephone numbers.
We appreciate the time you have taken to express your views on these
matters.
Yours sincerely
GRAHAM MCLENNAN
Manager, Parliament and Correspondence
Cabinet Secretariat
This Department, in accordance with the Public Records Act 1973, will
collect and store the information you have provided. Should you have any
queries regarding access to your personal information held by this
Department please contact the Privacy Officer, Department of Premier &
Cabinet, Level 2, 1 Treasury Place, East Melbourne 3002.
Text version of this message. (1KB)

END QUOTE
5 It ought to be understood that the proposed OFFICE OF THE GUARDIAN would not be a
body that in any way could interfere with the legal processes, as this would not be its function.
One of my chief concerns in seeking the creation of the OFFICE OF THE GUARDIAN is that
it can fill up a position that would not in anyway interfere with existing rights and provisions of
anyone, being they a judge, a member of parliament or any member of the general public.
10
In 1985, I then created the document ADDRESS TO THE COURT, and is now used in all
levels of Courts, including the High Court of Australia, despite it is now shown as a formal
document listed by any. See also my 1 December 2003 published book;
INSPECTOR-RIKATI® & ADDRESS TO THE COURT
A book on CD, making litigation a more level playing field
ISBN 978-0-9580569-7-7 was ISBN 0-9580569-7-8 (Prior to 1-1-2007)
5
As I quoted in my 27-11-2006 correspondence;

10 Dr. COCKBURN:
Parliament has been the supreme body. But when we embark on federation we throw
parliamentary sovereignty overboard. Parliament is no longer supreme. Our parliaments at
present are not only legislative, but constituent bodies. They have not only the power of
legislation, but the power of amending their constitutions. That must disappear at once on the
15 abolition of parliamentary sovereignty. No parliament under a federation can be a constituent
body; it will cease to have the power of changing its constitution at its own will.
Again;
20 power of changing its constitution at its own will.
If we then consider the matter regarding the purported reference of powers such as the
Commonwealth Powers (Industrial Relations) Act 1996 you may just find that this act as like its
predecessor the Commonwealth Powers (Children) Act 1986 is constitutionally floored, both
25 State and Federal constitutional levels.
One does not have to be Einstein to understand from reading either of the previous mentioned
legislations that the Victorian Parliament provided for the Governor to Gazette when such
legislation of reference of powers shall be terminated, if at all.
30 What this does explain to me is that the Governments at the time, and so their legal advisors
never really understood what Section 51(xxxvii) was about and that such kind of purported
reference of legislative powers is a nullity. As the Framers of the Constitution made clear, that
once a State was to refer legislative powers to the Commonwealth and the Commonwealth had
acted upon this then it would be beyond the States legislative powers to withdraw or amend the
35 reference of legislative powers! As the put it;
Mr. BARTON.-If a state Parliament wants to shirk its responsibility it can fall
back upon the referendum.
[start page 223]

40 Mr. ISAACS.-With regard to the other point that a state may repeal a law, I do not
agree with that argument. If a state refers a matter to the Federal Parliament, after
the Federal Parliament has exercised its power to deal with that matter the state
ceases to be able to interfere in regard to it. Moreover, when the Commonwealth
has passed a law at the request of any Parliament or Parliaments, and the
45 Parliament of a third state adopts it, it adopts a Commonwealth law, and it
requires the consent of the Commonwealth to get rid of that law. In my opinion,
there is no power of repeal with the states, and I feel no doubt that I have read
among the decisions of the United States, one which is to the effect, although I
cannot just now lay my hands upon it, that when a state has, with the consent of

Congress, made certain enactments the power of Congress is required to repeal
those enactments.
And
Mr. OCONNOR.-A law once passed under this provision becomes a federal law.
5
Mr. ISAACS.-Yes, and nothing less than the federal authority can get rid of it.
And
Mr. BARTON (New South Wales).-What I understand my honorable friend (Mr.
Holder) to ask is this: Suppose it were desired that extra-legislative power than now
10 exists should be granted to the Commonwealth-as, for instance, to take under its
control questions relating to Crown lands, and so on-whether an alteration in the
Constitution in that direction would be ultra vires? Now, the Bill provides, in Chapter
VIII., that the provisions of the Constitution shall not be altered except in the
following manner;" which, to my mind, means that if the processes specified are
15 adopted the provisions can be altered in any way. I take the provision to mean that
authority is given to the Commonwealth under the processes here specified to alter this
Constitution in any manner, so far as it deals with the affairs of Federated Australia,
and not with affairs outside the dominion of Australia. Consequently, if it were
proposed to add a legislative power of the kind suggested by Mr. Holder, I take it that
20 as Chapter VIII. provides first for the passage of the proposed law by an absolute
majority, and then for a referendum, the law would have no effect unless the
majorities of the several states agreed to it. So that not only the Commonwealth
but the states would have to agree to the passage of the law. Then any objection to
that law becoming a new part of the Constitution of the Commonwealth would vanish;
25 because, I think, so much authority is conceded by Chapter VIII.
And;
Mr. DEAKIN.-My point is that by the requests of different colonies at different
times you may arrive at a position in which all the colonies have adopted a particular
law, and it is necessary for the working of that law that certain fees, charges, or
30 taxation should be imposed. That law now relates to the whole of the Union, because
every state has come under it. As I read clause 52, the Federal Parliament will have
no power, until the law has thus become absolutely federal, to impose taxation to
provide the necessary revenue for carrying out that law. Another difficulty of the
sub-section is the question whether, even when a state has referred a matter to
35 the federal authority, and federal legislation takes place on it, it has any-and if
any, what-power of amending or repealing the law by which it referred the
question? I should be inclined to think it had no such power, but the question
has been raised, and should be settled. I should say that, having appealed to
Caesar, it must be bound by the judgment of Caesar, and that it would not be
40 possible for it afterwards to revoke its reference.
What is very important are the wording;

Mr. BARTON.-If a state Parliament wants to shirk its responsibility it can fall
back upon the referendum.
45 It relates to “a state Parliament” and “referendum”, as such a referendum is needed to accept a
State to have accepted it reference of Power.
Also;
I take it that as Chapter VIII. provides first for the passage of the proposed law
50 by an absolute majority, and then for a referendum, the law would have no

effect unless the majorities of the several states agreed to it. So that not only the
Commonwealth but the states would have to agree to the passage of the law.
It must be understood that the States had to pass in the first place referendums to accept the
5 Constitution Convention Bill 1898 which later, with amendments, became the Commonwealth
of Australia constitution Act 1900(UK).
A point is that Section 51(xxxvii) first of all is not the right vehicle, so to say, to be used for the
reference of powers regarding Children’s custody and Industrial Relations matters. Further,
once power is referred then the States can never again amend this legislation or rescind it. More
10 over, it is without constitutional validity if the reference of powers was not approved by the
electors of the relevant State concerned. Even the purported Victorian Constitution Act 1975
professes that the State has all legislative powers, and as such it would be in conflict to this
constitutional provision if some Act like the Commonwealth Powers (Industrial Relations) Act
1996 were to refer powers from the parliament which constitutionally is provided. As such the
15 purported Victorian Constitution Act 1975 first would have to have been amended to allow for
such exclusion. Because Governments in powers follow their political doctrine, irrespective that
they were not elected on a particular doctrine, it means that as Former premier Jeff Kennett
proved to do he by backdoor manner sought to amend the purported Victorian Constitution 1975
by removing legislative jurisdiction from the parliament guaranteed by the purported Victorian
20 Constitution Act 1975! One cannot claim that because a government is elected into office it can
then destroy the rights of electors willy nilly without it having been put to the electors. The
electors alone can approve of any reference of legislative powers, and a State referendum for this
is required as much as it was required at the time the States were Colonies and pursued to have a
LIMITED Federation.
25 I have also been advised that the WA Parliament in 2003 has done away with references to the
“Crown”. I am neither a Royalist or a Republican, merely that in my view this is an utter and
sheer nonsense as the States have no such powers to declare themselves a REPUBLIC by
backdoor manner by removing the references to “Crown”.
My various books previously published have set this out extensively and more over my
30 successful appeals (unchallenged) also raised this issue!
The OFFICE OF THE GUARDIAN, State and/or Federal are to be constituted to seek to avoid
misconceptions and ill-conceived views. It is not intended in any way to interfere with the legal
processes applicable. For example, it would be an advisory body to the government, the people,
35 the Parliament and the Courts. If therefore Mr and Mrs Citizen have a constitutional issue he
then can approach the OFFICE OF THE GUARDIAN and seek from them all relevant
information regarding the issue. The OFFICE OF THE GUARDIAN provides the information
to this person in the same identical manner, as it would do if a judge of a Court were to ask for it
or for that manner any politician, without bias.
40
The OFFICE OF THE GUARDIAN, where it detects or has the view that something is
drastically wrong about a constitutional issue, then in its own right could make an application
before the Courts as to seek the matter to be adjudicated upon. It doesn’t matter if Mr and Mrs
Citizen themselves pursue the matter before the Courts, the OFFICE OF THE GUARDIAN
45 does not take sides, it simply is the GUARDIAN of the GENERAL COMMUNITY to ensure
that constitutional provisions, the powers and limitations are appropriately provided for. Where a
Court makes a decision upon a constitutional matter then the OFFICE OF THE GUARDIAN
reflects any such decision with any material held on that subject. As such, ultimately the Courts
decide what is constitutional appropriate. The OFFICE OF THE GUARDIAN as such can
50 advise but cannot make final determinations! However, where currently many a person refrains
from pursuing legal options to obtain a Courts decision being because of the risk of considerable
legal cost involved, or otherwise, the OFFICE OF THE GUARDIAN would not be troubled by
this. Hence, it could pursue matters to obtain an appropriate ruling from a Court. This is a issue
that requires to be attended too as what those attending to legal studies and practicing law
generally never understood was that if any person makes a constitutional based objection against
a legislative provision then from that moment the legislative provision in question is and remains
5 ULTRA VIRES unless and until the appropriate Courts declares it to be INTRA VIRES.
Indeed, this was an UNCHALLENGED issue I succeeded also upon in my appeals. Meaning,
that one Mr and Mrs Citizen have raised a constitutional based objection, regardless that they
may never take the matter before the Courts, it means that from then on the relevant legislative
provision is and remains ULTRA VIRES! This has been so far grossly overlooked by judges
10 and others alike and likely never have been understood to be applicable as such. My various
books have set this out extensively; such as my 6 July 2006 publication;
INSPECTOR-RIKATI® & What is the -Australian way of life- really?

A book on CD on Australians political, religious & other rights
15 ISBN 978-0-9751760-2-3 was ISBN 0-9751760-2-1 (Prior to 1-1-2007)
We had previously a Newly (Victorian) judge to the High Court of Australia refusing to hand
down a judgment in a appeal case because the judge made clear he did not know about the issue.
I understand this judge, prior to appointment only was involved in one Court case involving a
20 constitutional issue! Now this is the kind of lawyers we appoint to the High Court of Australia,
who I view lack the basic understanding of what the constitution is about.
We also have word slanging matches (as set out in my books) between High Court of Australia
judges, where one argued contemporary views must be used to explain how constitutional
powers apply and the other judge argue that one cannot apply contemporary views as it must be
25 interpreted as to what the Framers of the constitution intended.
Lets have a look at the Commonwealth of Australia Constitution Act 1900 (UK)
44 Disqualification
Any person who:
30 (i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power,
or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a
foreign power; or
(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
35 imprisonment for one year or longer; or
(iii) is an undischarged bankrupt or insolvent; or
(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; or
Again;
40 (iii) is an undischarged bankrupt or insolvent;
Taking a contemporary view we could argue that “bankrupt” can mean a person “morally
bankrupt” not just “financially bankrupt” and that would in my view then disqualify many
politicians currently in the Federal parliament. You see, you cannot apply contemporary views to
45 the wording of the framers as then you could turn it into any kind of nonsense never
contemplated to be within the powers of the Commonwealth of Australia or otherwise being
applicable. The same with “OFFICE OF PROFIT” the High Court of Australia in Sykes v
Cleary in its ill-conceived judgment rules as including a State OFFICE OF PROFIT. My books
have meticulously set out how Section 44 was created and how it is applicable to only
50 Commonwealth OFFICE OF PROFIT and not at all was intended to apply to a State OFFICE OF
PROFIT.

WHAT WE SIMPLY HAVE THAT WE HAVE JUDGES ADJUDICATING UPON MATTERS
OF WHICH THEY HAVE AT TIMES LITTLE OR NO PROPER PERCEPTION OF WHAT IT
IS ABOUT. THEY LACK THE TIME TO RESEARCH MATTERS SUCH AS I MAY HAVE
DONE AND THEN ENDING UP GIVING JUDGMENTS THAT FLIES IN THE FACE OF
5 NOT JUST COMMON SENSE BUT ALSO TO THE INTENTIONS OF THE FRAMERS OF
THE CONSTITUTION.
It should be understood that legislation beyond legislative power is no legislation at all. Hence
the Commonwealth Powers (Industrial Relations) Act 1996 is and remains ULTRA VIRES
10 and without an OFFICE OF THE GUARDIAN to pursue a declaration by a competent court of
jurisdiction this nonsense drags on.
Just consider the consequences if after years of having such legislation on the books finally
someone determine enough maintains it is ULTRA VIRES and has been since I made my
constitutional objection at the very least and succeed in the Courts upon that basis and perhaps
15 sue the Victorian Government for its neglect to appropriately deal with this.
What if some person is convicted in regard of a hideous crime and then use one of my books to
show to the Court that the Court lacked legal jurisdiction and because of it the conviction is
NULL AND VOID and he walks out as a free man?
20 As I indicated in past correspondences, any Commonwealth property obtained with the consent
of the State the Commonwealth of Australia became “sovereign” in right of that property and all
State legislative provisions were by this extinguished. Hence, if the Commonwealth of Australia
(such as Point Nepean) desires to sell the property it cannot do so to anyone but to the relevant
State as to recreate State legislative powers. If the Commonwealth sells the property to private
25 interest then it nevertheless remains to be a commonwealth “sovereign” entity and State laws are
not applicable. Being it the former Army camp at Broadmeadows, now turned into an Industrial
site, or other Commonwealth entities, they all remain to be outside the legislative powers of the
State of Victoria unless being returned to the fold of the Victorian legislative powers by being
handed back to the State of Victoria which then can sell it off to private interest if this is so
30 desired by it (the State of Victoria).
Just imagine that some company has on its premises people killed in an accident and then are
beyond the reach of Victorian laws to be prosecuted and no Commonwealth law was applicable
to them either? Just imagine if all businesses that have purportedly purchased properties from the
Commonwealth of Australia now decide to refuse to pay local rates, as it is unconstitutional! I
35 have no doubt that they could do so legitimately. Businesses could create hotels lacking any
proper provisions knowing that it would be an exclusion zone of law where it is a
Commonwealth entity and was not formally sold back to the State of Victoria.
The Commonwealth of Australia has the constitutional powers to acquire properties for
Commonwealth purposes but not to sell it off to businesses other then where it (the property) is
40 part of territories and intended to remain as such. One cannot have that the Commonwealth could
obtain any property in a state and then on property market speculate to sell it off.
As with the Toxic waste issue the SA Government had lost in Court I then recommended to the
premier to appeal it upon the constitutional ground that the Commonwealth of Australia had no
constitutional powers to acquire property for toxic waste and they succeeded in the appeal.
45
We have children born in the State of Victoria deported as “Stateless” because of the ULTRA
VIRES provisions of the Migration Act and the purported Australian Citizenship Act 1948
defining/declaring “citizenship”. Again I succeeded in my appeal using the unchallenged
constitutional grounds that anyone born within the Commonwealth of Australia is a British
50 national as embedded in the Constitution and there is no constitutional power for either the State
and/or the Commonwealth of Australia to declare otherwise, irrespective if the child’s parents are
legally or illegally in the Commonwealth of Australia.
Also, that the States are not part of the Commonwealth of Australia but rather that the
Commonwealth of Australia is a LIMITED federation of the colonies (now States) as like the
European Union exists. And, also unchallenged was my constitutional based argument that the
European Human Rights Act is applicable within the Commonwealth of Australia and so in all
5 States, as my already published books also canvassed extensively.
Yes, we need an OFFICE OF THE GUARDIAN as to try to get some clarity in these
aforementioned and numerous other matters, and not that in time the Courts find that for so long
it was done wrong and any person in the GENERAL COMMUNITY may have lost their job
10 and perhaps with it their home and everything else, because a Government ignored my warnings
to fix up the rot.
Every Member of Parliament could consult the OFFICE OF THE GUARDIAN as to what it
has on record regarding certain constitutional issues and by this be able to make a more informed
decision in voting upon certain Bills presented to the Parliament.
15
During the 1999 State election, as a candidate, I proposed to create the Office of a Minister for
Decentralization and faxed to the then Premier Jeff Kennett a document about this called
“WORK CONTRACT”, the principle of that document also were given to Russel Savage, who
was also then on the campaign trial at various places I was then. Jeff Kennett then himself
20 suddenly adopted this Minister for Decentralization issue and Russel Savage then pursued the
“CHARTER” which was basically on the principles of the “WORK CONTRACT”. The
problem however with others are that they can adopt some idea but lacking the incentive I have
may fail to successfully use it.
While Victoria, and other States seem to have a shortage of doctors in country areas somehow
25 the decentralization has not taken off to deal with this. For example, why not offer Students in
country area’s scholarships to become doctors provided they undertake that in return for the free
studies they commit to practice at least, so to say, 10 years in the area they come from or other
nominated place. Sure, one may not instanter resolve shortage of doctors, but give people the
opportunity to have a free education to become a doctor and likely they will grab it with both
30 hands, so to say. If then they can practice in their own local towns, amidst the people they know
so well then one also overcome the settling in issue, etc.
In my view, the Commonwealth of Australia has no constitutional powers to create its own
Technical school’s, as it remains to be within State legislative powers.
There are numerous other constitutional issues that require to be attended to, such as in finances,
35 where the Commonwealth of Australia cannot create its own future holdings as if it is some
“sovereign” entity as after all, all moneys it collects belongs to the States apart of using moneys
for constitutional matters it has legislative power provided for and expenses to run the
With an OFFICE OF THE GUARDIAN these and numerous other matters could finally be
40 addressed and many current problematic issues either known or simmering within the
community, can be perhaps altogether avoided to ever become major issue or resolved all
together.
It is my view that the OFFICE OF THE GUARDIAN ought to be a Department beyond
political interference and as such should be under the responsibilities of the Governor of the
45 State.
And, the cost of running the OFFICE OF THE GUARDIAN would be nothing towards the
saving considering avoiding possible litigation, etc. The mere fact that none of the Governments
legal advisors woke up, so to say, that reference of powers cannot be done willy nilly because
some government dominated parliament concedes to passing Bills, regardless how
50 unconstitutional it might be, underlines the need of an OFFICE OF THE GUARDIAN also.
END QUOTE Chapter 012 Reference of legislative powers
.
QUOTE 1-4-2008 correspondence to Federal Education Minister and Deputy PM Julia Gillard
WITHOUT PREJUDICE
5 Federal Education Minister and Deputy PM Julia Gillard 1-4-2008
E-mail: Julia.Gillard.MP@aph.gov.au
Cc; Mr. Phillip Campbell - Principal

MELTON SECONDARY COLLEGE Coburns Road , Melton VIC 3337
10 Tel: (03) 9743 3322 Fax: (03) 9743 0432
.
DR TIM HAWKES
The King's School. Christian boys school, PO Box 1 Parramatta NSW 2124 Australia
Telephone: +61 2 9683 8555 • Facsimile: +61 2 9683 8488 E-mail: tks@kings.edu.au
15 .
GARRY DE DUFF
INDEPENDENT SCHOOLS COUNCIL
12 Thesiger Court, Deakin ACT 2600 or PO Box 324, Deakin West ACT 2600
Phone: 02 6282 3488 Fax: 02 6285 2926 Email: isca@isca.edu.au
20 .
DR ANDREW DOWLING
AUSTRALIAN COUNCIL FOR EDUCATIONAL RESEARCH
Australian Council for Educational Research ABN: 19 004 398 145
19 Prospect Hill Rd, Camberwell, VIC, Australia 3124
25 T: +61 3 9277 5555 F: +61 3 9277 5500
ACER Press Customer Service 1800 338 402 (Toll Free)
.
Ref; EDUCATION FUNDING – WHO TO ADDRESS IT.
.
30 Madam,
Enclosed in this correspondence is Chapter 456 which extensively deals with
EDUCATION FUNDING and the issue of public versus private and religious funding, etc.
Due to extensive usage of legislative provisions, Charters, transcripts, Authorities (judgments of
courts) relevant to EDUCATIONAL FUNDING issues this correspondence is comprehensive
35 and lengthy but may by this I anticipate give guidance how to address current EDUCATION
FUNDING dilemma’s. Only the ignorant would not consider the details set out below and I
anticipate that therefore those involved in determining EDUCATION FUNDING will take
appropriate consideration as to what is set out below.
.
40 QUOTE Chapter 456
Chapter 456 Education FUNDING- Private schools- Religion
.
* Gerrit, I am really confused as to if a religious school is a private school and if it then can be
funded or not! What is your opinion?
45 .
**#** INSPECTOR-RIKATI®, in this Chapter I am going to set out why funding of students
regardless of attending to a public, religious or private school should be equal when it comes to
certain items, such as those listed in Schedule 2 of the Education Act 1958 (Victoria). The set
out below attends to both State and Federal funding, but to get some understanding about matters
50 I will be quoting legislative provisions of both State, commonwealth and other jurisdictions , etc.
.
As shown below;
QUOTE
The Court of Appeals concurred in this finding.
In addition, the District Court found that the statutory deduction for "textbooks" included
not only "secular textbooks" but also:
1. Cost of tennis shoes and sweatsuits for physical education.
2. Camera rental fees paid to the school for photography classes.
5 3. Ice skates rental fee paid to the school.
4. Rental fee paid to the school for calculators for mathematics classes.
5. Costs of home economics materials needed to meet minimum requirements.
6. Costs of special metal or wood needed to meet minimum requirements of shop classes.
7. Costs of supplies needed to meet minimum requirements of art classes.
10 8. Rental fees paid to the school for musical instruments.
9. Cost of pencils and special notebooks required for class.
END QUOTE
.
Yet, often voluntary school fees as a way of extortion upon parents to pay monies, even so some
15 schools then use monies extorted from parents as so-called “voluntary school fees” towards
funding of purchase rental accommodation which are then in turn rented out for profit. In my
view Principal Phil Campbell ought to have been well aware that as principal of a P12 that then
students were charged for the cost of material used (Costs of special metal or wood needed to
meet minimum requirements of shop classes) or the student was denied having the final product
20 made as the P12 (public education facility) would try to sell it instead. By this students coming
from a low income family would generally be robbed of the right to have the article produced at
school because the parent(s) could not afford paying for the article. Such a P12 rather then
promoting understanding and friendship promoted in fact division, hatred, etc as a student proud
to have accomplished to make some item during classes not having the monies to pay for the
25 material then find someone else able to purchase his/her product! Likewise so the P12 basically
blackmailing a parent that unless the “voluntary school fees are paid” the principal will not
provide for the student to be provided “free school uniforms” for which the principle needed to
do no more but to authorise it where as the “free school uniform” was on account of the state. As
such, for these and numerous other issues in relation to the so called “voluntary school fees” I am
30 a total opponent of this scheme and it should be abolished. I discovered that ground keepers cost
were charged in a “voluntary school fees” unlawfully. Also “swimming pool fees” were charged
in the “voluntary school fees” despite of the relevant student already having a yearly pre-paid
swimming pool membership, as such this was a rip off! For example an incident occurred where
the then Premier of the State of Victoria Jeff Kennett had provided a show at cost of the State for
35 all students to attend to free of charge when the show was shown at the school. I then discovered
that various students had been denied to attend on the basis that their parents had not paid the
“voluntary school fees”. As such, even so it was a fee show paid for by the State the school used
it to blackmail parents that as long as they didn’t pay the “voluntary school fees” their children
would be discriminated against unlawfully. When I attend to the school having discovered the
40 exclusion of various students wrongfully from the show, and made known that this was unlawful,
the students then were allowed to attend albeit they had missed already a lot of the show as well
as the school had made those students the subject of ridicule both by the teachers and fellow
students.
.
45 Unlike the USA Constitution we do have the Hansard records of the Constitution Convention
Debates as to the intentions of the Framers of the Constitution and as such while we can use the
USA decisions as a guide we must however ensure to place it in the appropriate context
applicable in the Commonwealth of Australia. Because federal legislation must at all times
recognise the maximum rights and entitlements applicable in any State, when it commences to
50 legislate, at least as what was applicable at the time of Federation by Colonial legislation, we
may then first consider the Victorian Colonial position and what the Framers of the Constitution
stated as quoted below. However, it should be made clear that I do not accept that social
economical system could be applied in funding as the Commonwealth is bound to fund for the
“whole of the Commonwealth” as I have already extensively canvassed in various published
books, and as such no need to repeat the same. Because High Court of Australia judgments are I
view totally unreliable, as they are taking matters out of context I prefer to rely upon the USA
5 Authorities albeit one must consider them in the context of existing constitutional provisions
both of the State and the Commonwealth. The State of Victoria provides for funding of State
Schools but not of religious or private schools and the Federal Government then funds Religious
and Private schools more the State schools, this abnormality must stop. I have quoted below
certain legislation and other provisions at to set out what I am on about.
10 .
In my view the State has no legal justification to discriminate between contributing for a student
at a State school for Schedule 2 items of the Education Act 1958 and that for students attending
religious or private schools.
.
15 In my view the Commonwealth neither can differentiate between students who are attending
State schools, Religious schools or Private schools..
.
Basically both the State and the Commonwealth are obligated to provide funding for a
student, regardless if the students attends to a public (state) school, a religious school or a
20 private school.
.
The State is bound to remain within what is provided for in the schedule 2 of the Education Act
where as the commonwealth can fund additional matters provided, again, it is in an equal manner
throughout the whole of the commonwealth for any student regardless if this student attends to a
25 public school, a religious school or a private school. I see absolutely no justification why parents
of students who are attending to a private or religious school should have to fund education items
that are for free provided at State schools. They all are taxpayers and should have equal benefits
in rights. The difference is that if a parent has a child attending to a public school then it is aware
that the student will be educated in the manner applicable for State schools. If the parent desires a
30 more expensive education for the child and/or a religious education associated with the item s
listed in schedule 2 then they can pay the difference of cost in education.
I see absolutely no justification why parents who care very much for the kind of education their
child is provided with as to their standards then somehow are being punished to having to pay all
education cost merely for having a child attending to a private school or a religious school.
35 Again, the difference of cost surely is justified for them to pay but not the basic cost of items of
schedule 2 of the Education Act that is provided for free to public school students.
In my view, any Commonwealth funding therefore should be based upon the State in which
jurisdiction the school is based is provided with the same funding for the items listed in schedule
2 of the Education Act (in this case relating to Victoria albeit other States may have simular
40 provisions) as any other religious or private or public education facility. By this, all education
facilities being public, private or religious would have the same funding provided by both the
state and/or the Commonwealth in equal manner.
Because States may have different items that are for free education, there must be a
minimum list of items that applies to all States and Territories for this purpose.
45 It should be understood that the Education Act of Victoria does not deny religious teaching at a
public school, provided it is on a voluntary basis that a student attends and that only religious
organisation appointed representatives teaches particular religious education. As such, I see no
justification why a student at a public school could have religious education and yet have items
listed in schedule 2 of the Education Act paid for out of consolidated Revenue where as if the
50 same student were to receive the same education at a religious school then somehow the student
is not entitled to any funding from Consolidated Revenue. This nonsense should be stopped.
.
Many a parent works two or three jobs to try to provide their child with religious or private
school education and are so forced to do so because of the abnormality in funding. I see
absolutely no legal, moral or other justification to allow this to continue.
Therefore the States are bound to fund all items listed in schedule 2 of the Education Act
5 regardless if the student attends to a public, private or religious education facility and the
commonwealth upon this then provide equal funding for other items that may be provided
throughout the whole of the Commonwealth!
.
Lets now attend to various provisions, keeping in mind that the Commonwealth of Australia
10 Constitution Act 1900 (UK) is a British Act and as such considering the decision of Aggregate
Industries UK Ltd., R (on the application of) v English Nature and & Anor [2002] EWHC 908
(Admin) (24th April, 2002) and Judgments - Mark (Respondent) v. Mark (Appellant),
OPINIONS, OF THE LORDS OF APPEAL for judgment IN THE CAUSE, SESSION 2005-06
[2005] UKHL 42 on appeal from: [2003] EWCA Civ 168
15 It appears that the The European Convention for the protection of Human Rights and
Fundamental Freedoms (“the ECHR”) albeit not overriding constitutional law, is
complimentary to British (constitution) law, as the Commonwealth of Australia Constitution
Act 1900 (UK) is. As such that also ought to be kept in mind when considering the following;
.
20 Version No. 093
Education Act 1958

Act No. 6240/1958
Version incorporating amendments as at 5 April 2005
QUOTE
25 22.Instruction in State schools
(1) In every State school, not being a night school or other special school, four hours
at least shall be set apart during each school day for the instruction of the pupils,
and of such four hours two shall be before noon and shall be consecutive and two
shall be after noon and shall be consecutive.
30 (2) Instruction in the learning areas specified in the Second Schedule shall be free for
all pupils (other than overseas students) attending a State school.
.
23.Religious instruction
(1) Subject to this section religious instruction may be given in any State school but
35 otherwise secular instruction alone shall be given in State schools.
(2) When religious instruction is given in any State school during the hours set apart
for the instruction of the pupils—
(a) such religious instruction shall be given by persons who are accredited
representatives of religious bodies and who are approved by the Minister for
40 the purpose;
(b) such religious instruction shall be given on the basis of the normal class
organization of the school except in any school where the Minister, having
regard to the particular circumstances of such schools, or having regard to the
preparation or conduct of a pageant, special event or celebration of a festival
45 in a school or schools, authorizes some other basis to be observed;

(c) attendance for such religious instruction shall not be compulsory for any
pupil whose parents desire that he be excused from attending.
(2A) The Minister may give an authorisation under sub-section (2) in respect of the
preparation or conduct of a particular class of pageant, special event or celebration
5 of a festival generally to all schools, to a class or classes of school or to a specific
school.
(3) No teacher within the meaning of this Act shall give any instruction other than
secular instruction in any State school building.
(4) Nothing in this section shall prevent any State school building from being used for
10 any purpose on days other than school days or at hours on school days other than
the hours set apart for the instruction of the pupils.
END QUOTE
.
QUOTE
15 SECOND SCHEDULE
The Arts
English
Health and Physical Education (including Sport)
Languages other than English
20 Mathematics
Science
Studies of Society and Environment
Technology.
END QUOTE
25 .
DEPARTMENT OF FOREIGN AFFAIRS AND TRADE
CANBERRA
Charter of the United Nations, as amended
(including Statute of the International Court of Justice)
30 (San Francisco, 26 June 1945)
Entry into force generally: 24 October 1945
Entry into force for Australia: 1 November 1945
ATS-CD 1945 No.1
(c) Commonwealth of Australia 1995
35 .
QUOTE UN Charter 1945
Article 13
1. The General Assembly shall initiate studies and make recommendations for the purpose of:
a. promoting international cooperation in the political field and encouraging the progressive
40 development of international law and its codification;
b. promoting international cooperation in the economic, social, cultural, educational, and health
fields, and assisting in the realization of human rights and fundamental freedoms for all without
distinction as to race, sex, language, or religion.
QUOTE UN Charter 1945
.
Version No. 003
Charter of Human Rights and Responsibilities Act 2006

5 No. 43 of 2006
Version as at 1 January 2008
.
QUOTE
Preamble
10 On behalf of the people of Victoria the Parliament enacts this Charter, recognising that
all people are born free and equal in dignity and rights.
This Charter is founded on the following principles—
 
human rights are essential in a democratic and inclusive society that respects the
rule of law, human dignity, equality and freedom;
15  
human rights belong to all people without discrimination, and the diversity of the
people of Victoria enhances our community;
 
human rights come with responsibilities and must be exercised in a way that
respects the human rights of others;
END QUOTE
20 .And
.
QUOTE
PART 1—PRELIMINARY
1 Purpose and citation

25 (1) This Act may be referred to as the Charter of Human Rights and Responsibilities
and is so referred to in this Act.
(2) The main purpose of this Charter is to protect and promote human rights by—
(a) setting out the human rights that Parliament specifically seeks to protect and
promote; and
30 (b) ensuring that all statutory provisions, whenever enacted, are interpreted so far
as is possible in a way that is compatible with human rights; and
(c) imposing an obligation on all public authorities to act in a way that is
compatible with human rights; and
(d) requiring statements of compatibility with human rights to be prepared in
35 respect of all Bills introduced into Parliament and enabling the Scrutiny of
Acts and Regulations Committee to report on such compatibility; and
(e) conferring jurisdiction on the Supreme Court to declare that a statutory
provision cannot be interpreted consistently with a human right and requiring
the relevant Minister to respond to that declaration.
40 END QUOTE
.
And
.
QUOTE
5 Human rights in this Charter in addition to other rights and freedoms
A right or freedom not included in this Charter that arises or is recognised under
any other law (including international law, the common law, the Constitution of
the Commonwealth and a law of the Commonwealth) must not be taken to be
5 abrogated or limited only because the right or freedom is not included in this
Charter or is only partly included.
6 Application
(1) Only persons have human rights. All persons have the human rights set out in Part
2.
10 Note
Corporations do not have human rights.
(2) This Charter applies to—
(a) the Parliament, to the extent that the Parliament has functions under Divisions
1 and 2 of Part 3; and
15 (b) courts and tribunals, to the extent that they have functions under Part 2 and
Division 3 of Part 3; and
(c) public authorities, to the extent that they have functions under Division 4 of
Part 3.
(3) Subsection (2) does not take away from or limit—
20 (a) any other function conferred by this Charter on an entity specified in
subsection (2); or
(b) any function conferred on any other entity by this Charter.
(4) This Charter binds the Crown in right of Victoria and, so far as the legislative
power of the Parliament permits, the Crown in all its other capacities.
25 .
PART 2—HUMAN RIGHTS
7 Human rights—what they are and when they may be limited

(1) This Part sets out the human rights that Parliament specifically seeks to protect and
promote.
30 (2) A human right may be subject under law only to such reasonable limits as can be
demonstrably justified in a free and democratic society based on human dignity,
equality and freedom, and taking into account all relevant factors including—
(a) the nature of the right; and
(b) the importance of the purpose of the limitation; and
35 (c) the nature and extent of the limitation; and
(d) the relationship between the limitation and its purpose; and
(e) any less restrictive means reasonably available to achieve the purpose that the
limitation seeks to achieve.
(3) Nothing in this Charter gives a person, entity or public authority a right to limit (to
40 a greater extent than is provided for in this Charter) or destroy the human rights of
any person.

8 Recognition and equality before the law
(1) Every person has the right to recognition as a person before the law.
(2) Every person has the right to enjoy his or her human rights without discrimination.
(3) Every person is equal before the law and is entitled to the equal protection of the
5 law without discrimination and has the right to equal and effective protection
against discrimination.
(4) Measures taken for the purpose of assisting or advancing persons or groups of
persons disadvantaged because of discrimination do not constitute discrimination.
10 END QUOTE
.
Purpose and intent of the Charter;
QUOTE
http://www.justice.vic.gov.au/wps/wcm/connect/DOJ+Internet/Home/Your+Rights/Human+Rig
15 hts/Human+Rights+Charter/JUSTICE+-+How+does+the+Charter+work+-
+Human+Right+Charter
How Does the Charter Work?

A focus on prevention
The charter aims to improve service delivery and ensure transparent decision making by
20 promoting a human rights culture in Victoria. The model of human rights protection aims to
prevent human rights transgressions by requiring human rights to be at the fore of government
decision making.
The charter requires all public authorities to act compatibly with human rights. The charter
defines public authority and makes it clear that it includes a wide range of organisations
25 providing services of a public nature. This could include private sector organisations carrying out
public functions on behalf of government. The Victorian Public Sector Code of Conduct and the
Public Administration Act 2004 also require the public sector to respect human rights.
There is no additional right to legal action for a breach of the charter. The focus of the charter is
about getting things right at a planning and policy stage - anticipating and preventing human
30 rights infringements. However, a person may raise a human rights argument in the context of an
existing matter before a court or tribunal and the Victorian Ombudsman may investigate whether
administrative action is incompatible with a human right.
The charter supports the democratic process

The charter embraces a 'dialogue model'. The different parts of government – the courts, the
35 Parliament and the executive – have specific roles and are in a dialogue to ensure human rights
standards are met. The Victorian Parliament has the ultimate say in this dialogue as our
democratically elected representatives.
Parliament considers human rights issues for all proposed new laws and regulations. A Statement
of Compatibility is prepared for all proposed laws and a Human Rights Certificate is prepared for
40 all proposed regulations. These state whether human rights are impacted and, if limited, explain
whether and how a limitation is justified.
The charter requires that all statutory provisions (for example, laws and regulations) be
interpreted, as far as possible, in a way that is compatible with human rights. If laws or
regulations can be understood in a number of ways, the interpretation that considers human rights
45 is preferred.

Where the court cannot interpret a law consistently with the charter, the Supreme Court may
make a Declaration of Inconsistent Interpretation and Parliament will then decide whether to
change the law. Unlike the United States' Bill of Rights, the charter does not allow courts to
strike down laws as unconstitutional.
5 Roles of the arms of government

Executive
 Human rights standards are built into policy, legislation and practices
 Human rights impact assessments are provided to Cabinet
 Human rights Statements of Compatibility are provided to Parliament
10  The responsible minister must respond in Parliament to declarations made by the
Supreme Court.
Courts
 Where possible courts are required to interpret law to be compatible with the charter
 The Supreme Court can make declarations that are sent to Parliament if a law is not
15 consistent with the charter.
Parliament
 Parliament passes laws after human rights scrutiny
 In exceptional circumstances Parliament can override the charter in passing legislation
 Parliament responds to declarations made by the Supreme Court
20  Parliament has the final say on all laws.
Contacts
Human Rights Unit
Tel: 03 8684 0859
END QUOTE
25 .
Therefore the Supreme Court of Victoria has the powers to declare that State education funding
should be applied for all students regardless of attending a State school, a religious school or a
private school provided the funding is used for the sole purpose of funding schedule 2 of the
Education Act items.
30 .
QUOTE Hansard Victorian Parliament
13 June 2006 ASSEMBLY
Title CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES BILL

House ASSEMBLY
Activity Second Reading
Members McINTOSH
Date 13 June 2006
Page 1977
35
Page 1977
CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES BILL

Second reading
Debate resumed from 4 May; motion of Mr HULLS (Attorney-General).
40 Government amendments circulated by Mr HULLS (Attorney-General) pursuant to

standing orders.

Mr McINTOSH (Kew) -- The Charter of Human Rights and Responsibilities Bill has
been in this place for some three weeks, and in that short time it is very interesting
to note that, while we have heard from a number of advocates in relation to a
charter or bill of rights in Victoria, a large number of people have also expressed to
5 me, either personally or in writing, their profound concern about the introduction of
a bill or charter of rights in Victoria.
Page 1977
I will start by giving a broad overview from the opposition's point of view of what we
10 see as being the salient features of this bill.
The bill purports to specify those rights that the Parliament is seeking to protect. It
is a matter of profound concern that already in the introduction to the there seems
to be a notion of inconsistency arising in some of its passages. While we are seeking
to protect some rights specifically nominated in the bill, there is a broad overview
15 that says, 'That does not diminish your rights in relation to any other rights that you
may have'.
Most importantly, given the fact that this charter will operate, in effect, as
fundamental law, the outline of the specific rights we in the Parliament want to
protect is a matter of concern. The bill purports to introduce what is very much a
20 Labor abridged version of the International Covenant on Civil and Political
Rights.
END QUOTE Hansard Victorian Parliament
.
QUOTE
25 463 U.S. 388
Mueller v. Allen
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT
30 No. 82-195 Argued: April 18, 1983 --- Decided: June 29, 1983
A Minnesota statute (§ 290.09, subd. 22) allows state taxpayers, in computing their state
income tax, to deduct expenses incurred in providing "tuition, textbooks and transportation"
for their children attending an elementary or secondary school. Petitioner Minnesota
35 taxpayers brought suit in Federal District Court against respondent Minnesota
Commissioner of Revenue and respondent parents who had taken the tax deduction for
expenses incurred in sending their children to parochial schools, claiming that § 290.09,
subd. 22, violates the Establishment Clause of the First Amendment by providing
financial assistance to sectarian institutions. The District Court granted summary judgment
40 for respondents, holding that the statute is neutral on its face and in its application and does
not have a primary effect of either advancing or inhibiting religion. The Court of Appeals
affirmed.
Held: Section 290.09, subd. 22, does not violate the Establishment Clause, but satisfies all
elements of the "three-part" test laid down in Lemon v. Kurtzman, 403 U.S. 602, that must
45 be met for such a statute to be upheld under the Clause. Pp. 392-403.
(a) The tax deduction in question has the secular purpose of ensuring that the State's
citizenry is well educated, as well as of assuring the continued financial health of private
schools, both sectarian and nonsectarian. Pp. 394-395.
END QUOTE
50 .
QUOTE
Mr. BARTON.-But inasmuch as we have given to the Commonwealth the power of
regulating the entry of that class of persons, and the power of regulating them when they
have entered, is it not desirable that in that process there shall be left to the Commonwealth
5 power of repressing any such practices in the name of religion as I have indicated? If it be
necessary that there should be some regulative power left to the Commonwealth, then the
argument that we should leave the matter to the states does not apply, because we give such
a power to the Commonwealth.
Mr. HIGGINS.-Then all crimes should be left to the Commonwealth?

10 Mr. BARTON.-No; because you do not give any power with regard to punishing
crime to the Commonwealth, but you do give power to the Commonwealth to make
special laws as to alien races; and the moment you do that the power of making such laws
does not remain in the hands of the states; and if you place in the hands of the
Commonwealth the power to prevent such practices as I have described you should not
15 defeat that regulative power of the Commonwealth. I do not think that that applies at all,
however, to any power of regulating the lives and proceedings of citizens, because we
do not give any such power to the Commonwealth, whilst we do give the
Commonwealth power with regard to alien races; and having given that power, we
should take care not to take away an incident of it which it may be necessary for the
20 Commonwealth to use by way of regulation. I have had great hesitation about this matter,
but I think I shall be prevented from voting for the first part; and as to establishing any
religion, that is so absolutely out of the question, so entirely not to be expected-
Mr. SYMON.-It is part of the unwritten law of the Constitution that a religion shall not
be established.
25 Mr. BARTON.-It is so foreign to the whole idea of the Constitution that we have no
right to expect it; and, as my honorable and learned friend (Mr. Symon) suggests by his
interruption, I do not think, whatever may be the result of any American case, that any such
case can be stretched for a moment in such a way as to give Congress power of passing any
law to establish any religion. I do not suppose that there is a man in Congress who would
30 suggest it; and I have no doubt that the same court that decided that the community was a
Christian community would say that the United States Congress had no power to establish
any religion. The only part of the matter upon which I have had the least doubt (having
become more confirmed in my opinion since I have considered the matter further) is the
latter part of the proposal, which is that no religious test shall be required for any place of
35 public trust in the Commonwealth. I do not think that any such test would be required, and
the only question is whether it is possible. I have come to the conclusion that it is not
possible. Therefore, my disposition is to vote against the whole clause.
Constitution?
END QUOTE
.
The question therefore is if the Commonwealth cannot provide funding for a Church “directly”
45 can it so do “indirectly” by tax concessions, etc., this I view it cannot do.
.
5 .
Quick & Garran's "Annotated Constitution of the Commonwealth of Australia" more accurately
.
10 void and inoperative; it confers no rights, it imposes no duties; it affords no protection.".
.
federal laws in the USA; http://familyguardian.tax-
15 37 Am Jur 2d at section 8 states, in part: "Fraud vitiates every transaction and all contracts.
Indeed, the principle is often stated, in broad and sweeping language, that fraud destroys
the validity of everything into which it enters, and that it vitiates the most solemn contracts,
documents, and even judgments."
And
20 The general misconception is that any statute passed by legislators bearing the appearance
of law constitutes the law of the land. The U.S. Constitution is the supreme law of the land,
and any statute, to be valid, must be in agreement. It is impossible for both the Constitution
and a law violating it to be valid; one must prevail. This is succinctly stated as follows:
The general rule is that an unconstitutional statute, though having the form and name
25 of law, is in reality no law, but is wholly void, and ineffective for any purpose; since
unconstitutionality dates from the time of its enactment, and not merely from the date
of the decision so branding it. An unconstitutional law, in legal contemplation, is as
30 Since an unconstitutional law is void, the general principles follow that it imposes no
operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the
35 fundamental law of the land, it is superseded thereby.
No one is bound to obey an unconstitutional law and no courts are bound to enforce it.
.
Mr. GORDON.-
.
45 Again;
.
50 .
Mr. GORDON.-
The court may say-"It is a good law, but as it technically infringes on the Constitution
we will have to wipe it out."
And
5 Mr. BARTON.-
The position with regard to this Constitution is that it has no legislative power, except
that which is actually given to it in express terms or which is necessary or incidental
to a power given.
.
Mr. DEAKIN.-
In this Constitution, although much is written much remains unwritten,
.
As a “constitutionalist” I pursue what is constitutionally applicable.
15 .
QUOTE
Last Updated: 21 September 2001
FEDERAL COURT OF AUSTRALIA
Ruddock v Vadarlis [2001] FCA 1329
20 THE HONOURABLE PHILIP RUDDOCK MP, MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS, THE COMMONWEALTH OF AUSTRALIA AND
WILLIAM JOHN FARMER v ERIC VADARLIS, HUMAN RIGHTS AND EQUAL
OPPORTUNITY COMMISSION AND AMNESTY INTERNATIONAL LIMITED
V 1007 OF 21001
25 In Laker Airways Ltd v Department of Trade [1977] 1 QB 643, the House of Lords held that
there was no residual prerogative right to withdraw the designation of an airline, Skytrain, under
an international airline treaty between England and the United States (the Bermuda Agreement),
where the airline had been duly licensed under a domestic statute regulating civil aviation. On the
question of construing the scope of the domestic statute, Roskill LJ said (at 722):
30 "I do not think that the Attorney-General's argument that the prerogative power
and the power under municipal law can march side by side, each operating in its
own field, is right. The two powers are inextricably interwoven. Where a right to
fly is granted by the Authority under the statute by the grant of an air transport
licence which has not been lawfully revoked and cannot be lawfully revoked in the
35 manner thus far contemplated by the Secretary of State, I do not see why we
should hold that Parliament in 1971 must be taken to have intended that a
prerogative power to achieve what is in effect the same result as lawful revocation
would achieve, should have survived the passing of the statute unfettered so as to
enable the Crown to achieve by what I have called the back door that which
40 cannot lawfully be achieve by entry through the front. I think Parliament must be
taken to have intended to fetter the prerogative of the Crown in this relevant
respect."
Lord Denning MR said (at 706-707):
"Seeing then that ... statutory means were available for stopping Skytrain if there
45 was a proper case for it, the question is whether the Secretary of State can stop it
by other means. Can he do it by withdrawing the designation? Can he do

indirectly what he cannot do directly? Can he displace the statute by invoking a
prerogative? If he could do this, it would mean that, by a side wind, Laker
Airways Ltd would be deprived of the protection which the statute affords them ...
[T]he Secretary of State was mistaken in thinking that he could do it."
5 See also Lawton LJ (at 728) and Mocatta J at first instance (at 678) to the same
effect.
END QUOTE
.
Lets now consider what Wilson J stated in ATTORNEY-GENERAL (VICT.); EX REL. BLACK
10 v. THE COMMONWEALTH [1981] HCA 2; (1981) 146 CLR 559 (2 February 1981);
.
QUOTE
While on present authority it is not permissible to seek the meaning of s. 116 in the
convention debates,
15 END QUOTE
.
The “present authority” was the unconstitutional decision in 1904 when the High Court of
Australia held that the Hansard records of the Constitution Convention Debates could not be used
to explain the true meaning of the Constitution and the principles embedded in it , this even so
20 the framers of the Constitution had made clear that the Constitution was to be interpreted as to
what they had been recorded in the Hansard having stated during the debates!
As such, Wilson J was in my view deceptive. This I did set out in greater details below in the part
quoted of my 11-7-2004 correspondence.
.
25 The following was part of the ADDRESS TO THE COURT 19-7-2006 when the Court upheld
the appeals without any reservation!
.
QUOTE Chapter 12 “INSPECTOR-RIKATI® & How lawfully to avoid voting-CD”
I take the position that Subsection 245(14) of the Constitution is not and cannot be regarded to
30 limit the right of a objection to be only a (theistic belief ) “religious objection” but includes also
any secular belief objection.
.
If Subsection 245(14) was limited to being “theistic belief” then it would be unconstitutional.
.
35 QUOTE 4-6-2006 CORRESPONDENCE FAXED 10.36 pm 4-6-2006
WITHOUT PREJUDICE
Commonwealth Director of Public Prosecutions 4-6-2006
C/o Judy McGillivray, lawyer
Melbourne Office, 22 nd Floor, 2000 Queen Street, Melbourne VIC 3000
40 GPO Box 21 A, Melbourne Vic 3001
Tel 03 9605 4333, Fax 03 9670 4295 ref; 02101199, etc
T01567737 & Q01897630
AND WHOM IT MAY CONCERN
45 Re; “religious objection” (Subsection 245(14) of the Commonwealth Electoral Act 1918)
offend Section 116 if the Constitution if it excludes secular belief based objections.
.
Madam,
As you are aware I continue to refer to my religious objection albeit do wish to indicate
50 that while using the “religious objection” referred to in subsection 245(14) of the
Commonwealth Electoral Act 1918 I do not consider that this subsection 14 limits an objection
only to an “theistic belief” based “religious objection” but in fact it also includes any secular
belief based “religious objection”, as it must be neutral to whatever a person uses as grounds for
an “objection”. This, as Section 116 of the Constitution prohibit the Commonwealth of
Australia to limit the scope of subsection 245(14) to only “theistic belief” based “religious
5 objections”. Therefore, any person having a purely moral, ethical, or philosophical source of
“religious objection” have a valid objection.
Neither do I accept that a person making an “religious objection” requires to state his/her
religion, and neither which part of his/her religion provides for a “religious objection” as the
mere claim itself is sufficient to constitute what is referred to in subsection 245(14) as being a
10 “religious objection”. Therefore, the wording “religious objection” is to be taken as “objection”
without the word “religion” having any special meaning in that regard.
If you do not accept this as such, then there is clearly another constitutional issue on foot!
I request you to respond as soon as possible and set out your position in this regard.
.
END QUOTE 4-6-2006 CORRESPONDENCE FAXED 10.36 pm 4-6-2006
END QUOTE Chapter 12 “INSPECTOR-RIKATI® & How lawfully to avoid voting-CD”
.
This correspondence was dated 4-6-2006 being a few weeks prior to the 19 July 2006 County
20 Court of Victoria decision, which upheld my appeals on all and every constitutional and other
legal issue I had raised, including religious issues, then it is beyond question that this is
applicable.
.
As such, religious objection must include theistic beliefs (
25 .
But first let consider the Colonial legislation of 1871 as applicable at the time of federation;
.
QUOTE State Aid to Religion Abolition Act 1871
Version No. 001
30 State Aid to Religion Abolition Act 1871
Act No. 391/1871
TABLE OF PROVISIONS
35 Section Page
1. Repeal of section 53 of the Constitution Act 132

2. Definitions 133
3. Denominations may dispose of trust lands granted by the Crown and apply proceeds to denominational
40 purposes 133
4. Application for power to dispose of such lands to be made by head or authorised representative of
denomination 133
5. Notice of application to be given by advertisement and by notice to non-consenting trustees 133
6. Objections to application may be lodged 133
45 7. Application to be allowed if no objection lodged 134
8. Publication of allowance of application to be conclusive evidence that Act has been complied with and
trustees named are entitled upon trusts allowed 134
9. Certificate of title to issue to new trustees as proprietors under "Transfer of Land Statute" and Gazette to
be deposited as document declaring trusts 134
50 10. Governor may frame regulations 134
11. No reservation to be made of Crown lands for places of public worship or dwelling-houses for ministers
of any religious denomination after 1st day of July 1870 134
12. Promise or reservation of land not to be affected until application allowed 135
__________________
SCHEDULE 135
SCHEDULE 1 135
5 SCHEDULE 2 136
═══════════════
ENDNOTES 136
1. General Information 136
10 2. Table of Amendments 136
3. Explanatory Details 136
.
Version No. 001
15 Act No. 391/1871
An Act to provide for the Abolition of State Aid to Religion.
20 BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and
consent of the Legislative Council and the Legislative Assembly of Victoria in this present
Parliament assembled, and by the authority of the same, as follows:

From and after the thirty-first day of December One thousand eight hundred and
25 seventy-five no moneys shall be set apart for the advancement of the Christian
religion in Victoria under the provisions of the Fifty-third Section and for public
worship under the Eighth Part of Schedule D of the "Constitution Act", and as
from that day such provisions shall be and the same are hereby repealed.
2. Definitions
inconsistent with the context or subject matter have the respective meanings
hereby assigned to them, that is to say—
"the Governor" shall mean the person administering the government acting by
and with the advice of the Executive Council;
35 "the Minister" shall mean the responsible Minister of the Crown administering
this Act;
"denomination" shall mean any church religious body sect or congregation or the
members of any church formed into or acting as a body of persons for
40 "head or authorised representative" shall mean the person accepted as such for
the time being by the Governor;

"trustee" shall mean any person holding that office for the time being, whether
named as such in the Crown grant or approved of or appointed as such by the
Governor, although no legal estate may be vested in such person.
3. Denominations may dispose of trust lands granted by the Crown and apply
5 proceeds to denominational purposes
All lands which at the time of the passing of this Act have been granted by the
Crown without receiving any purchase money or promised or reserved by the
Crown or by the Governor permanently or temporarily for church purposes or
church and school purposes or dwelling-houses for the ministers of any
10 denomination may, subject to the provisions hereinafter contained, be disposed of
by the denomination to or for the benefit of which such lands may have been
granted promised or reserved, and the proceeds of disposition applied for the
purposes of such denomination in such manner as the denomination may deem
most beneficial.
15
4. Application for power to dispose of such lands to be made by head or authorised
representative of denomination
Every application for leave to dispose of any such land shall be made in the form
in the First Schedule hereto by the head or authorised representative of the
20 denomination, with the consent of the trustees of any such land resident in
Victoria, or of the majority thereof, and of the person or persons, if any, entitled to
minister in or occupy any building upon the land.
5. Notice of application to be given by advertisement and by notice to non-consenting
trustees
25 Such application shall be lodged at the office of the Minister, and within one
month from the time of lodging the same the applicant shall give notice thereof by
advertising the same at length once in the Government Gazette and once in some
newspaper circulating in the neighbourhood of the land and by serving a copy of
the application upon any trustee of the land resident in Victoria who shall not have
30 consented to such application.
6. Objections to application may be lodged
Within one month from the publication of the last advertisement any person may
lodge objections to the allowance of the application at the office of the Minister,
and a copy of every objection so lodged shall be forwarded by the Minister to the
35 applicant.
7. Application to be allowed if no objection lodged
If notice of the application shall have been duly given as aforesaid, and if no
objection shall have been lodged within one month from the last advertisement,
and if the land described in the application shall have been granted promised or
40 reserved as aforesaid, the Governor shall allow the application; and if any
objection shall have been lodged as aforesaid the Governor may allow or reject the
application, or with the consent of the applicant modify the trusts thereby
proposed, and if deemed expedient for the purpose of dealing with any such
objection may refer the same for the inquiry and report of any person or persons to
45 be appointed by the Governor in that behalf; and every such allowance shall be
signed by the Governor and shall be in the form in the Second Schedule hereto.

8. Publication of allowance of application to be conclusive evidence that Act has been
complied with and trustees named are entitled upon trusts allowed
Upon the allowance of any application, the allowance thereof, as signed by the
Governor, shall be published in the Government Gazette, and such publication
5 shall be conclusive evidence that all the provisions of this Act in respect of the
application have been complied with and that the trustees named in the statement
of trusts are entitled to the land therein described in fee-simple upon the trusts
thereof discharged of all trusts and limitations as to the use thereof theretofore
affecting the same, anything contained in the seventh section of the "Land Act
10 1869" to the contrary notwithstanding, and upon the application of such persons
the Registrar of Titles under the "Transfer of Land Statute" shall register such
persons as joint proprietors in fee of the said land with no survivorship.
9. Certificate of title to issue to new trustees as proprietors under "Transfer of Land

15 Statute" and Gazette to be deposited as document declaring trusts
The certificate of title to be issued as aforesaid shall be in the same form and of the
same effect as any other certificate of title issued under the provisions of the
"Transfer of Land Statute" as to the title of the proprietors, the immunity of
persons dealing with them, and in every other respect; and at the time of applying
20 under this Act for a certificate of title a copy of the Government Gazette containing
the allowance shall be deposited with and retained by the Registrar of Titles, under
the provisions of Section thirty-eight of the said Statute, as the document declaring
the trusts of the land as to which the certificate issues.
10. Governor may frame regulations
25 The Governor may from time to time frame alter and revoke regulations providing
for the manner in which applications under this Act, or objections thereto, shall be
lodged or dealt with, or for altering the forms in the Schedules to this Act, so far as
consistent therewith, and for the execution of all orders matters or things arising
under and consistent with this Act and not herein expressly provided for, and such
30 regulations when published in the Government Gazette, and purporting to be
signed by the Minister, shall have the force of law.
11. No reservation to be made of Crown lands for places of public worship or dwelling-
houses for ministers of any religious denomination after 1st day of July 1870
35 So much of section six of the "Land Act 1869" as relates to reservations of
Crown lands for places of public worship and dwelling-houses for the ministers of
any religious denomination shall be and the same is hereby repealed as from the
first day of July One thousand eight hundred and seventy, save as to any
reservation or application for reservation which may have been made thereunder
40 before the said date.
12. Promise or reservation of land not to be affected until application allowed
Nothing hereinbefore contained shall be deemed to affect any promise or
reservation of land in the third section mentioned, unless and until an application
under this Act shall be made in respect thereof, and subject to the allowance of any
45 such application every such promise or reservation shall be given effect to as if this
Act had not passed.
__________________

SCHEDULE
Section4.
THE FIRST SCHEDULE
I head or authorised representative of the denomination known as with the consent of [names of
consenting trustees] trustees of the land described in the subjoined statement of trusts and of [name and address of
5 persons so entitled if any] being the person or persons entitled to minister in or occupy a building or buildings upon
the said land, hereby apply to the Governor of the Colony of Victoria for leave to dispose of the said land by the
means and for the purposes mentioned in the said statement of trusts. And I hereby certify that the said land was
[state the particulars of the grant promise or reservation of the land] granted by the Crown on the day of
or promised or reserved by on the day of for the purpose of [state in full the purposes for
10 which the land was expressed to have been granted promised or reserved]: That the only trustees of the said land
resident in the Colony of Victoria are [state names and addresses of all resident trustees] of of of
That the only buildings upon the said land are [state generally the nature of all buildings on the land, or if none,
state that there are none] and that the only persons entitled to minister in or occupy the same are the abovenamed [if
there are no such persons state the fact and omit preceding reference to the consent of such persons].
15 Signature of head or authorised representative—
We consent to this application.
Signature of trustees—
Signatures of persons entitled to minister in or occupy building or buildings—
STATEMENT OF TRUSTS
Purposes to which
proceeds of
Description of Names of Powers of Disposition are to be
Land trustees Disposition applied
Describe land Give names, State the powers State distinctly the
fully by metes residences, which it is purposes to which it is
and bounds. and proposed to vest intended to apply the
occupations in trustees, such moneys arising from
of proposed as "power to sell, the disposition to be
trustees. exchange, authorised, or to which
mortgage, or any land taken in
lease," and if any exchange is to be
of such powers applied.
are to be limited,
state the nature
of the limitation.
20 __________________
Section7. THE SECOND SCHEDULE
A statement of trusts having been submitted by the head or authorised representative of the denomination of
under the provisions of the "Act to provide for the abolition of State Aid to Religion" for allowance by the Governor,
25 the same was allowed by him on the day of 18 , and the following is the form in which such
statement of trusts has been allowed [set out statement of trusts in full from the application, subject to any
modification which may have been made therein].
As witness the hand of the Governor of the Colony of Victoria
the day of
30 Governor of the Colony of Victoria.
═══════════════
ENDNOTES

The State Aid to Religion Abolition Act 1871 was assented to on 6
January 1871 and came into operation on 6 January 1871.
There are no amendments made to the State Aid to Religion Abolition Act 1871 by Acts and subordinate
instruments.
No entries at date of publication.
END QUOTE State Aid to Religion Abolition Act 1871
5 .
Again;
2. Definitions
In the construction and for the purposes of this Act the following terms shall if not
10 hereby assigned to them, that is to say—
members of any church formed into or acting as a body of persons for religious purposes of
what kind of faith or form of belief soever;
15 .
The word “church” is twice stated in it but not in regard of “congregation” and so any kind of
“congregation” could be deemed applicable. It also states “formed into or acting as a body of
persons for religious purposes of what kind of faith or form of belief soever”. As such a
religious body is any kind of religious body not just those accepted by registration by the State.
20 Perhaps Church of the New Faith v Commissioner of Pay-Roll Tax (vic) 1983 154 CLR 120 may
indicate this to have been so. However, the non-payment of pay roll tax in my view is a different
issue altogether. The purpose of the “State Aid to Religion Abolition Act 1871” was clearly not
to provide further financial benefits to a religious organisation. Therefore the exclusion of pay
roll tax would achieve the opposite then what was intended with this colonial legislation.
25 .
Again;
1.Repeal of section 53 of the Constitution Act
From and after the thirty-first day of December One thousand eight hundred and
seventy-five no moneys shall be set apart for the advancement of the Christian
30 religion in Victoria under the provisions of the Fifty-third Section and for public
worship under the Eighth Part of Schedule D of the "Constitution Act", and as
from that day such provisions shall be and the same are hereby repealed.
.
Tax exemptions are to be seen the same as “setting moneys apart” as when tax exemption is
35 applied it means other taxpayers are to pay more as to make up for the shortfall. Therefore, tax
exemption, which are De Facto Appropriation of Consolidated Revenue must be deemed
unconstitutional/unlawful. At least in the State of Victoria.
.
It also must be understood that prior to Federation the Colonial Government had the powers to
40 amend its own constitution, however, this did not continue once the Colonial Sovereign
Parliament became a State constitutional Parliament upon federation.
.
.
QUOTE:-
5 END QUOTE
.
"Subject to this constitution" means it must be interpreted to the intentions of the Framers of the
With other words, the NSW Colonial Constitution Act effectively became amended by the
10 Commonwealth of Australia Act 1900 (UK) by legislatives powers belonging to all Colonies
the Commonwealth of Australia Constitution Act 1900 (UK).
Therefore, since Federation no State Parliament could amend its own State Constitution as it no
15 longer was a "sovereign Parliaments" but a "constitutional Parliament", as like the Federal
propose to the State electors to amend the State constitution and then the State electors must
.
20 Hence, ask which State Parliament since Federation actually pursued this way to amend its State
constitution?
.
approval of the State electors by State referendum?
25 You find that the State of Victoria purportedly amended its State Constitution without a State
Likewise so in regard of any other subsequent purported State Constitution amendments!
.
Therefore, for all purposes and intent the State of Victoria cannot provide any financial benefits
30 to a religious body and neither so can provide for the Commonwealth to do so.
.
* What I gather from this so far is that all and any “religious funding by both the state of Victoria
and /or the Commonwealth is unconstitutional? Is that it?
.
35 **#** Correct.
.
* As such no funding for religious school?
.
**#** Not exactly.
40 .
* But they are religious, aren’t they?
.
**#** Religious schools are private schools but not all private schools are religious schools. For
example a table is a piece of furniture but not every piece of furniture is a table, as it can be a
45 chair, etc.
.
* I get that. So what is the difference?
.
**#** The State is to provide “free education” and as such it doesn’t matter if the education of
50 “X” amount is paid to a public school or a private (including religious) schools because the
payment must relate to the principle education of the student of non-religious context.
.
* So, what I understand from this is that if all schools, regardless being public, private, or
religious private teaches the core subjects for all school s to be the same then they all are entitled
to funding in the same and equal manner. Is that it?
.
5 **#** Basically, this is funding the core issues of the student across the board of any school.
Therefore “free education” must relate to what is and can be provided for free at a public school
should likewise be provided for free at a private school regardless if it has a religious doctrine or
not.
As such, the same level of funding must be provided. Now, if a private school prefers to have
10 their own Olympic swimming pool installed rather then using the Council baths (pool) then the
extra expenses must come from other sources.
.
* You mean to say, that the rich kids still get the same funding?
.
15 **#** I do not perceive that all children attending to private schools (religious or not) are all
“rich kids”. Some parents simply view their child may get a better education, albeit many
millionaires and other achievers have based their success on public school education!
.
* Do I have it right then that what you mean is that every dollar spend on education for a student
20 at a public school should likewise be paid to a private school regardless if they are religious or
not?
.
**#** Not exactly.
.
25 * Gosh, you really have a habit of confusing me, don’t you?
.
**#** It is to be paid to any school but under the condition that the monies are not used for
alternative purposes such as religion.
.
30 * Now I get you. You are saying that the religious school cannot use the monies paid to it to fund
the salary of a religious teacher or religious books, am I right?
.
**#** That is correct. In that way, it is not spend on religious education as there is a separation
of religious versus non-religious expenditure.
35 .
* What about a religious school by getting the moneys to fund ordinary books, etc, then being
able to save moneys it used to spend on this and then redirect this for religious funding. Is not
that still to the benefit of religious education?
.
40 **#** Not at all. As long as the moneys are used strictly for non-religious purposes there is no
issue.
.
* What about school busses to a religious school?
.
45 **#** If the school bus is engaged for taking children to the school for non-religious purposes,
say for match and English, then any additional religious activities are not an issue. The principle
transport is then for non-religious activities. If however the children are collected for a religious
exercise only then it cannot be funded with State and/or federal funding.
.
50 * What about public schools using funding for religious education?
.

**#** This is a tricky one. If it is for a public school to educate students as to the different kind
of religions that exist and not to specifically educate students in a particular religion then I view
the funding is constitutionally permissible. However, if a public school is to fund a religious
exercise, such as attending to a particular denomination but not to educate in regard of other
5 denominations then it can be deemed religious education and cannot be funded by public money.
.
* What about celebrating Christmas, Easter, etc, in public schools?
.
**#** This is also very tricky. The school cannot use public money to fund such a celebration
10 but nothing is there to prevent a State school to allow for celebrations of religious events. The
abolition was about abolition of funding, directly and/or indirectly and not about public school
being prevented to celebrate religious events, being them Christian, Buddist, Islamic or other
kind of religious festivities, as a school may seek to provide a religious education to all religions
as part of the school program, and not as part of a specific religion.
15 .
* You mean that as long as it is not bias towards any form of religion or non-religion then it is all
rights?
.
**#** Then it can be accepted as an ordinary public education. What we have is that the
20 constitutional rights (Victoria) of free education of students must be considered in addition to
avoiding funding for religious education and Section 116 of the (federal) Constitution to which
the Commonwealth is bound. Hence “Lemon v. Kurtzman” is set in a different scenario in the
USA but still the line of argument may be observed, then followed by “Mueller v. Allen”. But
first consider Everson v. Board of Education-1947.
25 .
QUOTE Everson v. Board of Education-1947
http://www.firstamendmentcenter.org/faclibrary/case.aspx?id=1073
Everson v. Board of Education (docket #: 52) (1947) [Findlaw]

Secondary Link Everson v. Board of Education [Legal Information
Institute]
Argument Date 11/20/1946
Decided 02/10/1947
Supreme Court Vote 5-4
Note 1st Amend. Non-Establishment clause applied to
states
Supreme Court Ruling Due Process Clause claim denied; Establishment
Clause claim denied
Issue Whether a board of education resolution

authorizing the reimbursement of parents
for fares paid for the transportation by
public carrier of children attending public
and Catholic schools violates the First
and Fourteenth Amendments of the U.S.
Constitution.
Majority Opinion Black, J.

Dissenting Opinion Jackson, J. (joined by Frankfurter, J.), & Rutledge, J. (joined by
Frankfurter, J., Jackson, J. & Burton, J.)
Lower Court District Court for the District of Columbia (3-judge court)
Lawyers For Petitioner
Edward R. Burke and E. Hilton Jackson
For Respondent
William H. Speer
Opinion - Lower Everson v. Bd. Of Ewing Tp., 44 A.2d 333 (N.J. Err. & App,
Court 1945)
News "Begin Case on Catholics’ Use of Public Funds," Chicago Daily

Tribune, Nov. 21, 1946, pg. 25
"Opposed to Funds in Parochial Aid; Looking on the Outside

But Seeing Only on the Inside," New York Times, Nov. 21,
1946, pg. 32
"Parochial School Tax Aid Backed by Court," Los Angeles

Times, Feb. 11, 1947, p. 1
Edwards, William, "Highest Court Backs Tax Aid to Catholics;

Splits in School Case Ruling, 5-4," Chicago Daily Tribune, Feb.
11, 1947, p. 1
Stokes, Dillard, "Religious, Political Issues Split High Court;

Public Fund Aid to N.J. Parochial Schools and Hatch Act Are
Upheld," The Washington Post, Feb. 11, 1947, p. 1
Other Chemerinsky, Erwin, CONSTITUTIONAL LAW:

PRINCIPLES & POLICIES (2nd ed., 2002), sect. 12.2.6.2
Choper, Jesse, "The Religion Clauses of the First Amendment:

Reconciling the Conflict," 41 University of Pittsburgh Law
Review 673 (1980)
Nowak, John E. & Rotunda, Ronald D., PRINCIPLES OF

CONSTITUTIONAL LAW (2ND ED., 2005), sect. 17.4
Oaks, Dallin H., ed., THE WALL BETWEEN CHURCH AND

STATE (1963)
Sekulow, Jay Allan, WITNESSING THEIR FAITH:

RELIGIOUS INFLUENCE ON SUPREME COURT
JUSTICES AND THEIR OPINIONS (2006), pp. 203-238
Tribe, Laurence, AMERICAN CONSTITUTIONAL LAW

(22nd ed., 1988) sect. 14.2, 14.6

Wiecek, William M., THE BIRTH OF THE MODERN
CONSTITUTION: THE UNITED STATES SUPREME
COURT, 1941-1953 (Holmes Devise, vol. XII, 2006), pp. 261-
280
Witte, John, Jr., RELIGION AND THE AMERICAN

CONSTITUTIONAL EXPERIMENT (2000), pp. 114-115, 156,
164-165, 170, 182-183, 233-234
http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0330_0001_ZS.html
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Everson v. Board of Education of the Township of Ewing (No. 52)

133 N.J.L. 350, 44 A.2d 333, affirmed.
Syllabus Opinion Dissent Dissent
[ Black ] [ Jackson ] [ Rutledge ]
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10 Syllabus
SUPREME COURT OF THE UNITED STATES
330 U.S. 1
Everson v. Board of Education of the Township of Ewing
15 APPEAL FROM THE COURT OF ERRORS AND APPEALS OF NEW JERSEY
No. 52 Argued: November 20, 1946 --- Decided: February 10, 1947
Pursuant to a New Jersey statute authorizing district boards of education to make rules and
20 contracts for the transportation of children to and from schools other than private schools
operated for profit, a board of education by resolution authorized the reimbursement of
parents for fares paid for the transportation by public carrier of children attending public
and Catholic schools. The Catholic schools operated under the superintendency of a
Catholic priest and, in addition to secular education, gave religious instruction in the
25 Catholic Faith. A district taxpayer challenged the validity under the Federal Constitution of
the statute and resolution so far as they authorized reimbursement to parents for the
transportation of children attending sectarian schools. No question was raised as to whether
the exclusion of private schools operated for profit denied equal protection of the laws; nor
did the record show that there were any children in the district who attended, or would have
30 attended but for the cost of transportation, any but public or Catholic schools.
Held:
1. The expenditure of tax raised funds thus authorized was for a public purpose, and did not
violate the due process clause of the Fourteenth Amendment. Pp. 5-8.

2. The statute and resolution did not violate the provision of the First Amendment (made
applicable to the states by the Fourteenth Amendment) prohibiting any "law respecting an
establishment of religion." Pp. 8-18.
[p2]
5 In a suit by a taxpayer, the New Jersey Supreme Court held that the state legislature was
without power under the state constitution to authorize reimbursement to parents of bus
fares paid for transporting their children to schools other than public schools. 132 N.J.L. 98,
39 A.2d 75. The New Jersey Court of Errors and Appeals reversed, holding that neither the
statute nor a resolution passed pursuant to it violated the state constitution or the provisions
10 of the Federal Constitution in issue. 133 N.J.L. 350, 44 A.2d 333. On appeal of the federal
questions to this Court, affirmed, p. 18. [p3]
END QUOTE Everson v. Board of Education-1947
.
QUOTE Lemon v. Kurtzman
15 403 U.S. 602
Lemon v. Kurtzman
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF PENNSYLVANIA
20 No. 89 Argued: March 3, 1971 --- Decided: June 28, 1971 [*]
Rhode Island's 1969 Salary Supplement Act provides for a 15% salary supplement to be
paid to teachers in nonpublic schools at which the average per-pupil expenditure on secular
education is below the average in public schools. Eligible teachers must teach only courses
25 offered in the public schools, using only materials used in the public schools, and must
agree not to teach courses in religion. A three-judge court found that about 25% of the
State's elementary students attended nonpublic schools, about 95% of whom attended
Roman Catholic affiliated schools, and that to date about 250 teachers at Roman Catholic
schools are the sole beneficiaries under the Act. The court found that the parochial school
30 system was "an integral part of the religious mission of the Catholic Church," and held that
the Act fostered "excessive entanglement" between government and religion, thus violating
the Establishment Clause. Pennsylvania's Nonpublic Elementary and Secondary Education
Act, passed in 1968, authorizes the state Superintendent of Public Instruction to "purchase"
certain "secular educational services" from nonpublic schools, directly reimbursing those
35 schools solely for teachers' salaries, textbooks, and instructional materials. Reimbursement
is restricted to courses in specific secular subjects, the textbooks and materials must be
approved by the Superintendent, and no payment is to be made for any course containing
"any subject matter expressing religious teaching, or the morals or forms of worship of any
sect." Contracts were made with schools that have more than 20% of all the students in the
40 State, most of which were affiliated with the Roman Catholic Church. The complaint
challenging the constitutionality of [p603] the Act alleged that the church-affiliated schools
are controlled by religious organizations, have the purpose of propagating and promoting a
particular religious faith, and conduct their operations to fulfill that purpose. A three-judge
court granted the State's motion to dismiss the complaint for failure to state a claim for
45 relief, finding no violation of the Establishment or Free Exercise Clause.
Held: Both statutes are unconstitutional under the Religion Clauses of the First
Amendment, as the cumulative impact of the entire relationship arising under the statutes
involves excessive entanglement between government and religion. Pp. 611-625.
(a) The entanglement in the Rhode Island program arises because of the religious activity
50 and purpose of the church-affiliated schools, especially with respect to children of
impressionable age in the primary grades, and the dangers that a teacher under religious
control and discipline poses to the separation of religious from purely secular aspects of
elementary education in such schools. These factors require continuing state surveillance to
ensure that the statutory restrictions are obeyed and the First Amendment otherwise
5 respected. Furthermore, under the Act, the government must inspect school records to
determine what part of the expenditures is attributable to secular education, as opposed to
religious activity, in the event a nonpublic school's expenditures per pupil exceed the
comparable figures for public schools. Pp. 615-620.
(b) The entanglement in the Pennsylvania program also arises from the restrictions and
10 surveillance necessary to ensure that teachers play a strictly nonideological role and the
state supervision of nonpublic school accounting procedures required to establish the cost
of secular, as distinguished from religious, education. In addition, the Pennsylvania statute
has the further defect of providing continuing financial aid directly to the church-related
schools. Historically, governmental control and surveillance measures tend to follow cash
15 grant programs, and here the government's post-audit power to inspect the financial records
of church-related schools creates an intimate and continuing relationship between church
and state. Pp. 620-622.
(c) Political division along religious lines was one of the evils at which the First
Amendment aimed, and in these programs, where successive and probably permanent
20 annual appropriations that benefit relatively few religious groups are involved, political
[p604] fragmentation and divisiveness on religious lines are likely to be intensified. Pp.
622-624.
(d) Unlike the tax exemption for places of religious worship, upheld in Walz v. Tax
Commission, 397 U.S. 664, which was based on a practice of 200 years, these innovative
25 programs have self-perpetuating and self-expanding propensities which provide a warning
signal against entanglement between government and religion. Pp. 624-625.
BURGER, C.J., delivered the opinion of the Court, in which BLACK, DOUGLAS,
HARLAN, STEWART, MARSHALL (as to Nos. 569 and 570), and BLACKMUN, JJ.,
joined. DOUGLAS, J., filed a concurring opinion, post, p. 625, in which BLACK, J.,
30 joined, and in which MARSHALL, J. (as to Nos. 569 and 570), joined, filing a separate
statement, post, p. 642. BRENNAN, J., filed a concurring opinion, post, p. 642. WHITE, J.,
filed an opinion concurring in the judgment in No. 89 and dissenting in Nos. 569 and 570,
post, p. 661. MARSHALL, J., took no part in the consideration or decision of No. 89.
[p606]
35 END QUOTE Lemon v. Kurtzman
.
QUOTE Mueller v. Allen
463 U.S. 388
Mueller v. Allen
40 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT
No. 82-195 Argued: April 18, 1983 --- Decided: June 29, 1983
45 A Minnesota statute (§ 290.09, subd. 22) allows state taxpayers, in computing their state
income tax, to deduct expenses incurred in providing "tuition, textbooks and transportation"
for their children attending an elementary or secondary school. Petitioner Minnesota
taxpayers brought suit in Federal District Court against respondent Minnesota
Commissioner of Revenue and respondent parents who had taken the tax deduction for
50 expenses incurred in sending their children to parochial schools, claiming that § 290.09,
subd. 22, violates the Establishment Clause of the First Amendment by providing
financial assistance to sectarian institutions. The District Court granted summary judgment
for respondents, holding that the statute is neutral on its face and in its application and does
not have a primary effect of either advancing or inhibiting religion. The Court of Appeals
5 affirmed.
Held: Section 290.09, subd. 22, does not violate the Establishment Clause, but satisfies all
elements of the "three-part" test laid down in Lemon v. Kurtzman, 403 U.S. 602, that must
be met for such a statute to be upheld under the Clause. Pp. 392-403.
(a) The tax deduction in question has the secular purpose of ensuring that the State's
10 citizenry is well educated, as well as of assuring the continued financial health of private
schools, both sectarian and nonsectarian. Pp. 394-395.
(b) The deduction does not have the primary effect of advancing the sectarian aims of
nonpublic schools. It is only one of many deductions -- such as those for medical expenses
and charitable contributions -- available under the Minnesota tax laws; is available for
15 educational expenses incurred by all parents, whether their children attend public schools or
private sectarian or nonsectarian private schools, Committee for Public Education v.
Nyquist, 413 U.S. 756, distinguished; and provides aid to parochial schools only as a result
of decisions of individual parents, rather than directly from the State to the schools
themselves. The Establishment Clause's historic purposes do not encompass the sort of
20 attenuated financial benefit that eventually flows to parochial schools from the neutrally
available tax benefit at issue. The fact that, notwithstanding § 290.09, subd. 22's facial
neutrality, a particular annual statistical analysis shows that the statute's application
primarily benefits religious institutions [p389] does not provide the certainty needed to
determine the statute's constitutionality. Moreover, private schools, and parents paying for
25 their children to attend these schools, make special contributions to the areas in which the
schools operate. Pp. 396-402.
(c) Section 290.09, subd. 22, does not "excessively entangle" the State in religion. The fact
that state officials must determine whether particular textbooks qualify for the tax
deduction and must disallow deductions for textbooks used in teaching religious doctrines
30 is an insufficient basis for finding such entanglement. P. 403.
REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and
WHITE, POWELL, and O'CONNOR, JJ., joined. MARSHALL, J., filed a dissenting
opinion, in which BRENNAN, BLACKMUN, and STEVENS, JJ., joined post, p. 404.
[p390]
35 .
http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0463_0388_ZO.html
Mueller v. Allen (No. 82-195)

676 F.2d 1195, affirmed.
Syllabus Opinion Dissent
[ Rehnquist ] [ Marshall ]
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REHNQUIST, J., Opinion of the Court
40
463 U.S. 388

Mueller v. Allen
CIRCUIT
5 No. 82-195 Argued: April 18, 1983 --- Decided: June 29, 1983
JUSTICE REHNQUIST delivered the opinion of the Court.

Minnesota allows taxpayers, in computing their state income tax, to deduct certain
expenses incurred in providing for the education of their children. Minn.Stat. § 290.09,
10 subd. 22 (1982). [n1] The United States Court of Appeals for the Eighth Circuit held that the
Establishment Clause of the First Amendment, as made applicable to the States by the
Fourteenth Amendment, was not offended by this arrangement. Because this question
was reserved in Committee for Public Education v. Nyquist, 413 U.S. 756 (1973), and
because [p391] of a conflict between the decision of the Court of Appeals for the Eighth
15 Circuit and that of the Court of Appeals for the First Circuit in Rhode Island Federation of
Teachers v. Norberg, 630 F.2d 855 (CA1 1980), we granted certiorari. 459 U.S. 820
(1982). We now affirm.
Minnesota, like every other State, provides its citizens with free elementary and secondary
schooling. Minn.Stat. §§ 120.06, 120.72 (1982). It seems to be agreed that about 820,000
20 students attended this school system in the most recent school year. During the same year,
approximately 91,000 elementary and secondary students attended some 500 privately
supported schools located in Minnesota, and about 95% of these students attended schools
considering themselves to be sectarian.
Minnesota, by a law originally enacted in 1955 and revised in 1976 and again in 1978,
25 permits state taxpayers to claim a deduction from gross income for certain expenses
incurred in educating their children. The deduction is limited to actual expenses incurred
for the "tuition, textbooks and transportation" of dependents attending elementary or
secondary schools. A deduction may not exceed $500 per dependent in grades K through 6
and $700 per dependent in grades 7 through 12. Minn.Stat. § 290.09, subd. 22 (1982). [n2]
30 [p392]
Petitioners -- certain Minnesota taxpayers -- sued in the United States District Court for the
District of Minnesota claiming that § 290.09, subd. 22, violated the Establishment Clause
by providing financial assistance to sectarian institutions. They named as defendants,
respondents here, the Commissioner of the Department of Revenue of Minnesota and
35 several parents who took advantage of the tax deduction for expenses incurred in sending
their children to parochial schools. The District Court granted respondents' motion for
summary judgment, holding that the statute was "neutral on its face and in its application,
and does not have a primary effect of either advancing or inhibiting religion." 514 F . Supp.
998, 1003 (1981). On appeal, the Court of Appeals affirmed, concluding that the Minnesota
40 statute substantially benefited a "broad class of Minnesota citizens." 676 F.2d 1195, 1205
(1982).
Today's case is no exception to our oft-repeated statement that the Establishment Clause
presents especially difficult questions of interpretation and application. It is easy enough to
quote the few words constituting that Clause -- "Congress shall make no law respecting an
45 establishment of [p393] religion." It is not at all easy, however, to apply this Court's
various decisions construing the Clause to governmental programs of financial assistance to
sectarian schools and the parents of children attending those schools. Indeed, in many of
these decisions, we have expressly or implicitly acknowledged that "we can only dimly
perceive the lines of demarcation in this extraordinarily sensitive area of constitutional
50 law." Lemon v. Kurtzman, 403 U.S. 602, 612 (1971), quoted in part with approval in
Nyquist, 413 U.S. at 761, n. 5.
One fixed principle in this field is our consistent rejection of the argument that "any
program which in some manner aids an institution with a religious affiliation" violates the
Establishment Clause. Hunt v. McNair, 413 U.S. 734, 742 (1973). See, e.g., Bradfield v.
Roberts, 175 U.S. 291 (1899); Walz v. Tax Comm'n, 397 U.S. 664 (1970). For example, it is
5 now well established that a State may reimburse parents for expenses incurred in
transporting their children to school, Everson v. Board of Education, 330 U.S. 1 (1947),
and that it may loan secular textbooks to all schoolchildren within the State, Board of
Education v. Allen, 392 U.S. 236 (1968).
Notwithstanding the repeated approval given programs such as those in Allen and Everson,
10 our decisions also have struck down arrangements resembling, in many respects, these
forms of assistance. See, e.g., Lemon v. Kurtzman, supra; Levitt v. Committee for Public
Education, 413 U.S. 472 (1973); Meek v. Pittenger, 421 U.S. 349 (1975); Wolman v.
Walter, 433 U.S. 229, 237-238 (1977). [n3] In this case, we [p394] are asked to decide
whether Minnesota's tax deduction bears greater resemblance to those types of assistance to
15 parochial schools we have approved, or to those we have struck down. Petitioners place
particular reliance on our decision in Committee for Public Education v. Nyquist, supra,
where we held invalid a New York statute providing public funds for the maintenance and
repair of the physical facilities of private schools and granting thinly disguised "tax
benefits," actually amounting to tuition grants, to the parents of children attending private
20 schools. As explained below, we conclude that § 290.09, subd. 22, bears less resemblance
to the arrangement struck down in Nyquist than it does to assistance programs upheld in our
prior decisions and those discussed with approval in Nyquist.
The general nature of our inquiry in this area has been guided, since the decision in Lemon
v. Kurtzman, supra, by the "three-part" test laid down in that case:
25 First, the statute must have a secular legislative purpose; second, its principal or primary
effect must be one that neither advances nor inhibits religion . . . ; finally, the statute must
not foster "an excessive government entanglement with religion."
Id. at 612-613. While this principle is well settled, our cases have also emphasized that it
provides "no more than [a] helpful signpos[t]" in dealing with Establishment Clause
30 challenges. Hunt v. McNair, supra, at 741. With this caveat in mind, we turn to the specific
challenges raised against § 290.09, subd. 22, under the Lemon framework.
Little time need be spent on the question of whether the Minnesota tax deduction has a
secular purpose. Under our prior decisions, governmental assistance programs have
consistently survived this inquiry even when they have run afoul of other aspects of the
35 Lemon framework. See, e.g., Lemon v. Kurtzman, supra; Meek v. Pittenger, supra, at 363;
Wolman v. Walter, supra, at 236. This reflects, at least in part, our reluctance to attribute
unconstitutional motives to the States, particularly when a plausible secular purpose [p395]
for the State's program may be discerned from the face of the statute.
A State's decision to defray the cost of educational expenses incurred by parents --
40 regardless of the type of schools their children attend -- evidences a purpose that is both
secular and understandable. An educated populace is essential to the political and economic
health of any community, and a State's efforts to assist parents in meeting the rising cost of
educational expenses plainly serves this secular purpose of ensuring that the State's
citizenry is well educated. Similarly, Minnesota, like other States, could conclude that there
45 is a strong public interest in assuring the continued financial health of private schools, both
sectarian and nonsectarian. By educating a substantial number of students, such schools
relieve public schools of a correspondingly great burden -- to the benefit of all taxpayers. In
addition, private schools may serve as a benchmark for public schools, in a manner
analogous to the "TVA yardstick" for private power companies. As JUSTICE POWELL
50 has remarked:
Parochial schools, quite apart from their sectarian purpose, have provided an educational
alternative for millions of young Americans; they often afford wholesome competition with
our public schools; and in some States, they relieve substantially the tax burden incident to
the operation of public schools. The State has, moreover, a legitimate interest in facilitating
education of the highest quality for all children within its boundaries, whatever school their
parents have chosen for them.
5 Wolman v. Walter, supra, at 262 (concurring in part, concurring in judgment in part, and
dissenting in part). All these justifications are readily available to support § 290.09, subd.
22, and each is sufficient to satisfy the secular purpose inquiry of Lemon. [n4] [p396]
We turn therefore to the more difficult but related question whether the Minnesota statute
has "the primary effect of advancing the sectarian aims of the nonpublic schools."
10 Committee for Public Education v. Regan, 444 U.S. 646, 662 (1980); Lemon v. Kurtzman,
403 U.S. at 612-613. In concluding that it does not, we find several features of the
Minnesota tax deduction particularly significant. First, an essential feature of Minnesota's
arrangement is the fact that § 290.09, subd. 22, is only one among many deductions -- such
as those for medical expenses, § 290.09, subd. 10, and charitable contributions, § 290.21,
15 subd. 3 -- available under the Minnesota tax laws. [n5] Our decisions consistently have
recognized that, traditionally, "[l]egislatures have especially broad latitude in creating
classifications and distinctions in tax statutes," Regan v. Taxation With Representation of
Wash., 461 U.S. 540, 547 (1983), in part because the "familiarity with local conditions"
enjoyed by legislators especially enables them to "achieve an equitable distribution of the
20 tax burden." Madden v. Kentucky, 309 U.S. 83, 88 (1940). Under our prior decisions, the
Minnesota Legislature's judgment that a deduction for educational expenses fairly equalizes
the tax burden of its citizens and encourages desirable expenditures for educational
purposes is entitled to substantial deference. [n6] [p397]
Other characteristics of § 290.09, subd. 22, argue equally strongly for the provision's
25 constitutionality. Most importantly, the deduction is available for educational expenses
incurred by all parents, including those whose children attend public schools and those
whose children attend nonsectarian private schools or sectarian private schools. Just as in
Widmar v. Vincent, 454 U.S. 263, 274 (1981), where we concluded that the State's
provision of a forum neutrally "available to a broad class of nonreligious as well as
30 religious speakers" does not "confer any imprimatur of state approval," ibid., so here: "[t]he
provision of benefits to so broad a spectrum of groups is an important index of secular
effect." [n7] Ibid. [p398]
In this respect, as well as others, this case is vitally different from the scheme struck down
in Nyquist. There, public assistance amounting to tuition grants was provided only to
35 parents of children in nonpublic schools. This fact had considerable bearing on our decision
striking down the New York statute at issue; we explicitly distinguished both Allen and
Everson on the grounds that "[i]n both cases the class of beneficiaries included all
schoolchildren, those in public as well as those in private schools." 413 U.S. at 782-783, n.
38 (emphasis in original). [n8] Moreover, we intimated that "public assistance (e.g.,
40 scholarships) made available generally without regard to the sectarian-nonsectarian, or
public-nonpublic nature of the institution benefited," ibid., might not offend the
Establishment Clause. We think the tax deduction adopted by Minnesota is more similar to
this latter type of program than it is to the arrangement struck down in Nyquist. Unlike the
assistance at issue in Nyquist, § 290.09, subd. 22, permits all parents -- whether their
45 children attend public school or private -- to deduct their children's educational expenses.
As Widmar and our other decisions indicate, a program, like § 290.09, subd. 22, that
neutrally provides [p399] state assistance to a broad spectrum of citizens is not readily
subject to challenge under the Establishment Clause.
We also agree with the Court of Appeals that, by channeling whatever assistance it may
50 provide to parochial schools through individual parents, Minnesota has reduced the
Establishment Clause objections to which its action is subject. It is true, of course, that
financial assistance provided to parents ultimately has an economic effect comparable to
that of aid given directly to the schools attended by their children. It is also true, however,
that, under Minnesota's arrangement, public funds become available only as a result of
numerous private choices of individual parents of school-age children. For these reasons,
we recognized in Nyquist that the means by which state assistance flows to private schools
5 is of some importance: we said that "the fact that aid is disbursed to parents, rather than to .
. . schools," is a material consideration in Establishment Clause analysis, albeit "only one
among many factors to be considered." 413 U.S. at 781. It is noteworthy that all but one of
our recent cases invalidating state aid to parochial schools have involved the direct
transmission of assistance from the State to the schools themselves. The exception, of
10 course, was Nyquist, which, as discussed previously, is distinguishable from this case on
other grounds. Where, as here, aid to parochial schools is available only as a result of
decisions of individual parents, no "imprimatur of state approval," Widmar, supra, at 274,
can be deemed to have been conferred on any particular religion, or on religion generally.
We find it useful, in the light of the foregoing characteristics of § 290.09, subd. 22, to
15 compare the attenuated financial benefits flowing to parochial schools from the section to
the evils against which the Establishment Clause was designed to protect. These dangers
are well described by our statement that
"[w]hat is at stake as a matter of policy [in Establishment Clause cases] is preventing that
kind and degree of government involvement in religious life that, as history [p400] teaches
20 us, is apt to lead to strife and frequently strain a political system to the breaking point."
Nyquist, 413 U.S. at 796, quoting Walz v. Tax Comm'n, 397 U.S. at 694 (opinion of Harlan,
J.). It is important, however, to "keep these issues in perspective:"
At this point in the 20th century, we are quite far removed from the dangers that prompted
the Framers to include the Establishment Clause in the Bill of Rights. See Walz v. Tax
25 Comm'n, 397 U.S. 664, 668 (1970). The risk of significant religious or denominational
control over our democratic processes -- or even of deep political division along religious
lines -- is remote, and when viewed against the positive contributions of sectarian schools,
any such risk seems entirely tolerable in light of the continuing oversight of this Court.
Wolman, 433 U.S. at 263 (POWELL, J., concurring in part, concurring in judgment in part,
30 and dissenting in part). The Establishment Clause, of course, extends beyond prohibition of
a state church or payment of state funds to one or more churches. We do not think,
however, that its prohibition extends to the type of tax deduction established by Minnesota.
The historic purposes of the Clause simply do not encompass the sort of attenuated
financial benefit, ultimately controlled by the private choices of individual parents, that
35 eventually flows to parochial schools from the neutrally available tax benefit at issue in this
case.
Petitioners argue that, notwithstanding the facial neutrality of § 290.09, subd. 22, in
application, the statute primarily benefits religious institutions. [n9] Petitioners rely, as they
did [p401] below, on a statistical analysis of the type of persons claiming the tax deduction.
40 They contend that most parents of public school children incur no tuition expenses, see
Minn.Stat. § 120.06 (1982), and that other expenses deductible under § 290.09, subd. 22,
are negligible in value; moreover, they claim that 96% of the children in private schools in
1978-1979 attended religiously affiliated institutions. Because of all this, they reason, the
bulk of deductions taken under § 290.09, subd. 22, will be claimed by parents of children in
45 sectarian schools. Respondents reply that petitioners have failed to consider the impact of
deductions for items such as transportation, summer school tuition, tuition paid by parents
whose children attended schools outside the school districts in which they resided, rental or
purchase costs for a variety of equipment, and tuition for certain types of instruction not
ordinarily provided in public schools.
50 We need not consider these contentions in detail. We would be loath to adopt a rule
grounding the constitutionality of a facially neutral law on annual reports reciting the extent
to which various classes of private citizens claimed benefits under the law. Such an
approach would scarcely provide the certainty that this field stands in need of, nor can we
perceive principled standards by which such statistical evidence might be evaluated.
Moreover, the fact that private persons fail in a particular year to claim the tax relief to
which they are entitled -- under a facially neutral statute -- should be of little importance in
5 determining the constitutionality of the statute permitting such relief.
Finally, private educational institutions, and parents paying for their children to attend these
schools, make special contributions to the areas in which they operate.
Parochial [p402] schools, quite apart from their sectarian purpose, have provided an
educational alternative for millions of young Americans; they often afford wholesome
10 competition with our public schools; and in some States they relieve substantially the tax
burden incident to the operation of public schools.
Wolman, supra, at 262 (POWELL, J., concurring in part, concurring in judgment in part,
and dissenting in part). If parents of children in private schools choose to take especial
advantage of the relief provided by § 290.09, subd. 22, it is no doubt due to the fact that
15 they bear a particularly great financial burden in educating their children. More
fundamentally, whatever unequal effect may be attributed to the statutory classification can
fairly be regarded as a rough return for the benefits, discussed above, provided to the State
and all taxpayers by parents sending their children to parochial schools. In the light of all
this, we believe it wiser to decline to engage in the type of empirical inquiry into those
20 persons benefited by state law which petitioners urge. [n10]
Thus, we hold that the Minnesota tax deduction for educational expenses satisfies the
primary effect inquiry of our Establishment Clause cases. [p403]
Turning to the third part of the Lemon inquiry, we have no difficulty in concluding that the
Minnesota statute does not "excessively entangle" the State in religion. The only plausible
25 source of the "comprehensive, discriminating, and continuing state surveillance," 403 U.S.
at 619, necessary to run afoul of this standard would lie in the fact that state officials must
determine whether particular textbooks qualify for a deduction. In making this decision,
state officials must disallow deductions taken for
instructional books and materials used in the teaching of religious tenets, doctrines or
30 worship, the purpose of which is to inculcate such tenets, doctrines or worship.
Minn.Stat. § 290.09, subd. 22 (1982). Making decisions such as this does not differ
substantially from making the types of decisions approved in earlier opinions of this Court.
In Board of Education v. Allen, 392 U.S. 236 (1968), for example, the Court upheld the
loan of secular textbooks to parents or children attending nonpublic schools; though state
35 officials were required to determine whether particular books were or were not secular, the
system was held not to violate the Establishment Clause. See also Wolman v. Walter, 433
U.S. 229 (1977); Meek v. Pittenger, 421 U.S. 349 (1975). The same result follows in this
case. [n11] [p404]
For the foregoing reasons, the judgment of the Court of Appeals is
40 Affirmed.
1. Minnesota Stat. § 290.09, subd. 22 (1982), permits a taxpayer to deduct from his or her
computation of gross income the following:
Tuition and transportation expense. The amount he has paid to others, not to exceed $500
for each dependent in grades K to 6 and $700 for each dependent in grades 7 to 12, for
45 tuition, textbooks and transportation of each dependent in attending an elementary or
secondary school situated in Minnesota, North Dakota, South Dakota, Iowa, or Wisconsin,
wherein a resident of this state may legally fulfill the state's compulsory attendance laws,
which is not operated for profit, and which adheres to the provisions of the Civil Rights Act
of 1964 and chapter 363. As used in this subdivision, "textbooks" shall mean and include
50 books and other instructional materials and equipment used in elementary and secondary
schools in teaching only those subjects legally and commonly taught in public elementary
and secondary schools in this state and shall not include instructional books and materials
used in the teaching of religious tenets, doctrines or worship, the purpose of which is to
inculcate such tenets, doctrines or worship, nor shall it include such books or materials for,
or transportation to, extracurricular activities including sporting events, musical or dramatic
events, speech activities, driver's education, or programs of a similar nature.
5 2. Both lower courts found that the statute permits deduction of a range of educational
expenses. The District Court found that deductible expenses included:
1. Tuition in the ordinary sense.
2. Tuition to public school students who attend public schools outside their residence
school districts.
10 3. Certain summer school tuition.
4. Tuition charged by a school for slow learner private tutoring services.
5. Tuition for instruction provided by an elementary or secondary school to students who
are physically unable to attend classes at such school.
6. Tuition charged by a private tutor or by a school that is not an elementary or secondary
15 school if the instruction is acceptable for credit in an elementary or secondary school.
7. Montessori School tuition for grades K through 12.
8. Tuition for driver education when it is part of the school curriculum.
514 F.Supp. 998, 1000 (1981). The Court of Appeals concurred in this finding.
In addition, the District Court found that the statutory deduction for "textbooks" included
20 not only "secular textbooks" but also:
1. Cost of tennis shoes and sweatsuits for physical education.
2. Camera rental fees paid to the school for photography classes.
3. Ice skates rental fee paid to the school.
4. Rental fee paid to the school for calculators for mathematics classes.
25 5. Costs of home economics materials needed to meet minimum requirements.
6. Costs of special metal or wood needed to meet minimum requirements of shop classes.
7. Costs of supplies needed to meet minimum requirements of art classes.
8. Rental fees paid to the school for musical instruments.
9. Cost of pencils and special notebooks required for class.
30 Ibid. The Court of Appeals accepted this finding.
3. In Lemon v. Kurtzman, the Court concluded that the State's reimbursement of nonpublic
schools for the cost of teachers' salaries, textbooks, and instructional materials, and its
payment of a salary supplement to teachers in nonpublic schools, resulted in excessive
entanglement of church and state. In Levitt v. Committee for Public Education, we struck
35 down on Establishment Clause grounds a state program reimbursing nonpublic schools for
the cost of teacher-prepared examinations. Finally, in Meek v. Pittenger and Wolman v.
Walter, we held unconstitutional a direct loan of instructional materials to nonpublic
schools, while upholding the loan of textbooks to individual students.
4. Section 290.09 contains no express statements of legislative purpose, and its legislative
40 history offers few unambiguous indications of actual intent. The absence of such evidence
does not affect our treatment of the statute.
5. Deductions for charitable contributions, allowed by Minnesota law, Minn.Stat. § 290.21,
subd. 3 (1982), include contributions to religious institutions, and exemptions from
property tax for property used for charitable purposes under Minnesota law include
45 property used for wholly religious purposes, § 272.02. In each case, it may be that religious
institutions benefit very substantially from the allowance of such deductions. The Court's
holding in Walz v. Tax Comm'n, 397 U.S. 664 (1970), indicates, however, that this does
not require the conclusion that such provisions of a State's tax law violate the Establishment
Clause.
50 6. Our decision in Committee for Public Education v. Nyquist, 413 U.S. 756 (1973), is not
to the contrary on this point. We expressed considerable doubt there that the "tax benefits"
provided by New York law properly could be regarded as parts of a genuine system of tax
laws. Plainly, the outright grants to low-income parents did not take the form of ordinary
tax benefits. As to the benefits provided to middle-income parents, the Court said:
The amount of the deduction is unrelated to the amount of money actually expended by any
parent on tuition, but is calculated on the basis of a formula contained in the statute. The
5 formula is apparently the product of a legislative attempt to assure that each family would
receive a carefully estimated net benefit, and that the tax benefit would be comparable to,
and compatible with, the tuition grant for lower income families.
Id. at 790 (footnote omitted). Indeed, the question whether a program having the elements
of a "genuine tax deduction" would be constitutionally acceptable was expressly reserved
10 in Nyquist, supra, at 790, n. 49. While the economic consequences of the program in
Nyquist and that in this case may be difficult to distinguish, we have recognized on other
occasions that "the form of the [State's assistance to parochial schools must be examined]
for the light that it casts on the substance." Lemon v. Kurtzman, 403 U.S. at 614. The fact
that the Minnesota plan embodies a "genuine tax deduction" is thus of some relevance,
15 especially given the traditional rule of deference accorded legislative classifications in tax
statutes.
7. Likewise, in Sloan v. Lemon, 413 U.S. 825, 832 (1973), where we held that a
Pennsylvania statute violated the First Amendment, we emphasized that "the State [had]
singled out a class of its citizens for a special economic benefit." We also observed in
20 Widmar that "empirical evidence that religious groups will dominate [the school's] open
forum," 454 U.S. at 275, might be relevant to analysis under the Establishment Clause. We
address this infra at 400-402.
8. Our full statement was:
Allen and Everson differ from the present litigation in a second important respect. In both
25 cases, the class of beneficiaries included all schoolchildren, those in public as well as those
in private schools. See also Tilton v. Richardson, [403 U.S. 672 (1971)], in which federal
aid was made available to all institutions of higher learning, and Walz v. Tax Comm'n,
supra, in which tax exemptions were accorded to all educational and charitable nonprofit
institutions. . . . Because of the manner in which we have resolved the tuition grant issue,
30 we need not decide whether the significantly religious character of the statute's
beneficiaries might differentiate the present cases from a case involving some form of
public assistance (e.g., scholarships) made available generally without regard to the
sectarian-nonsectarian, or public-nonpublic nature of the institution benefited. . . . Thus, our
decision today does not compel . . . the conclusion that the educational assistance
35 provisions of the "G. I. Bill," 38 U.S.C. § 1651 impermissibly advance religion in violation
of the Establishment Clause.
413 U.S. at 782-783, n. 38. See also id. at 775.
9. Petitioners cite a "Revenue Analysis" prepared in 1976 by the Minnesota Department of
Revenue, which states that
40 [o]nly those taxpayers having dependents in nonpublic elementary or secondary schools are
affected by this law, since tuition, transportation and textbook expenses for public school
students are paid for by the school district.
Brief for Petitioners 38. We fail to see the significance of the report; it is no more than a
capsule description of the tax deduction provision. As discussed below, and as the lower
45 courts expressly found, the analysis is plainly mistaken, as a factual matter, regarding the
effect of § 290.09, subd. 22. Moreover, several memoranda prepared by the Minnesota
Department of Revenue in 1979 -- stating that a number of specific expenses may be
deducted by parents with children in public school -- clearly indicate that the summary
discussion in the 1976 memorandum was not intended as any comprehensive or binding
50 agency determination.
10. Our conclusion is unaffected by the fact that § 290.09, subd. 22, permits deductions for
amounts spent for textbooks and transportation as well as tuition. In Everson v. Board of
Education, 330 U.S. 1 (1947), we approved a statute reimbursing parents of all
schoolchildren for the costs of transporting their children to school. Doing so by means of a
deduction, rather than a direct grant, only serves to make the State's action less
objectionable. Likewise, in Board of Education v. Allen, 392 U.S. 236 (1968), we approved
5 state loans of textbooks to all schoolchildren; although we disapproved, in Meek v.
Pittenger, 421 U.S. 349 (1975), and Wolman v. Walter, 433 U.S. 229 (1977), direct loans
of instructional materials to sectarian schools, we do not find those cases controlling. First,
they involved assistance provided to the schools themselves, rather than tax benefits
directed to individual parents, see supra at 399. Moreover, we think that state assistance for
10 the rental of calculators, see App. A18, ice skates, ibid., tennis shoes, ibid., and the like,
scarcely poses the type of dangers against which the Establishment Clause was intended to
guard.
11. No party to this litigation has urged that the Minnesota plan is invalid because it runs
afoul of the rather elusive inquiry, subsumed under the third part of the Lemon test,
15 whether the Minnesota statute partakes of the "divisive political potential" condemned in
Lemon, 403 U.S. at 622. The argument is advanced, however, by amici National
Committee for Public Education and Religious Liberty et al. This variation of the
"entanglement" test has been interpreted differently in different cases. Compare Lemon v.
Kurtzman, 403 U.S. at 622-625, with id. at 665-666 (opinion of WHITE, J.); Meek v.
20 Pittenger, 421 U.S. at 359-362, with id. at 374-379 (BRENNAN, J., concurring in part and
dissenting in part). Since this aspect of the "entanglement" inquiry originated with Lemon
v. Kurtzman, supra, and the Court's opinion there took pains to distinguish both Everson v.
Board of Education, supra, and Board of Education v. Allen, supra, the Court in Lemon
must have been referring to a phenomenon which, although present in that case, would
25 have been absent in the two cases it distinguished.
ref
The Court's language in Lemon respecting political divisiveness was made in the context of
Pennsylvania and Rhode Island statutes which provided for either direct payments of, or
reimbursement of, a proportion of teachers' salaries in parochial schools. We think, in the
30 light of the treatment of the point in later cases discussed above, the language must be
regarded as confined to cases where direct financial subsidies are paid to parochial schools
or to teachers in parochial schools.
END QUOTE Mueller v. Allen
.
35 * In your view the public school can teach religious aspects provided it is without bias, but the
“Establishment clause” appears to differ with you, doesn’t it?
.
**#** In my view, a public school is not teaching “religion” where it does no more but set out
the difference of various religions. It is not by this seeking to profess a certain religion above that
40 of another. For example a public school teaching about the “crusaders” would obviously have to
deal with the Christian component and the Muslims who opposed the Christian s and as such this
is in my view not a religious education per se but rather a public education that by this
coincidentally relates to religion. I do not regard that the “Establishment clause” can deny the
right of any public education facility to address the religious aspect of what the “crusaders” were
45 about when they then travelled to the Middle East.
.
QUOTE Establishment clause
http://www.firstamendmentcenter.org/rel_liberty/establishment/index.aspx
Establishment clause
50 The first of the First Amendment's two religion clauses reads: “Congress shall make no law
respecting an establishment of religion ... .” Note that the clause is absolute. It allows no
law. It is also noteworthy that the clause forbids more than the establishment of religion by
the government. It forbids even laws respecting an establishment of religion. The
establishment clause sets up a line of demarcation between the functions and operations of
the institutions of religion and government in our society. It does so because the framers of
the First Amendment recognized that when the roles of the government and religion are
5 intertwined, the result too often has been bloodshed or oppression.
For the first 150 years of our nation’s history, there were very few occasions for the courts
to interpret the establishment clause because the First Amendment had not yet been applied
to the states. As written, the First Amendment applied only to Congress and the federal
government. In the wake of the Civil War, however, the 14th Amendment was adopted. It
10 reads in part that “no state shall ... deprive any person of life, liberty or property without
due process of law... .” In 1947 the Supreme Court held in Everson v. Board of Education
that the establishment clause is one of the “liberties” protected by the due-process clause.
From that point on, all government action, whether at the federal, state, or local level, must
abide by the restrictions of the establishment clause.
15 Establishment
There is much debate about the meaning of the term “establishment of religion.” Although
judges rely on history, the framers’ other writings and prior judicial precedent, they
sometimes disagree. Some, including Chief Justice William Rehnquist, argue that the term
was intended to prohibit only the establishment of a single national church or the
20 preference of one religious sect over another. Others, including a majority of the justices of
the current Supreme Court, believe the term prohibits the government from promoting
religion in general as well as the preference of one religion over another. In the words of
the Court in Everson:
“The establishment of religion clause means at least this: Neither a state nor the
25 federal government may set up a church. Neither can pass laws that aid one
religion, aid all religions, or prefer one religion over another. Neither can force a
person to go to or to remain away from church against his will or force him to
profess a belief or disbelief in any religion... . Neither a state or the federal
government may, openly or secretly, participate in the affairs of any religious
30 organizations or groups and vice versa. In the words of Jefferson, the clause
against establishment of religion by law was intended to erect 'a wall of separation
between church and state.'"
To help interpret the establishment clause, the Court uses several tests, including the
Lemon, coercion, endorsement and neutrality tests.
35 Lemon test
The first of these tests is a three-part assessment sometimes referred to as the Lemon test.
The test derives its name from the 1971 decision Lemon v. Kurtzman, in which the Court
struck down a state program providing aid to religious elementary and secondary schools.
Using the Lemon test, a court must first determine whether the law or government action in
40 question has a bona fide secular purpose. This prong is based on the idea that government
should only concern itself in civil matters, leaving religion to the conscience of the
individual. Second, a court would ask whether the state action has the primary effect of
advancing or inhibiting religion. Finally, the court would consider whether the action
excessively entangles religion and government. While religion and government must
45 interact at some points while co-existing in society, the concern here is that they do not so
overlap and intertwine that people have difficulty differentiating between the two.
Although the test has come under fire from several Supreme Court justices, courts continue
to use this test in most establishment-clause cases.
Lemon test redux
50 In its 1997 decision Agostini v. Felton, the Supreme Court modified the Lemon test. By
combining the last two elements, the Court now used only the “purpose” prong and a
modified version of the “effects” prong. The Court in Agostini identified three primary
criteria for determining whether a government action has a primary effect of advancing
religion: 1) government indoctrination, 2) defining the recipients of government benefits
based on religion, and 3) excessive entanglement between government and religion.
5 Coercion test
Some justices propose allowing more government support for religion than the Lemon test
allows. These justices support the adoption of a test outlined by Justice Anthony Kennedy
in his dissent in County of Allegheny v. ACLU and known as the “coercion test.” Under this
test the government does not violate the establishment clause unless it (1) provides direct
10 aid to religion in a way that would tend to establish a state church, or (2) coerces people to
support or participate in religion against their will. Under such a test, the government
would be permitted to erect such religious symbols as a Nativity scene standing alone in a
public school or other public building at Christmas. But even the coercion test is subject to
varying interpretations, as illustrated in Lee v. Weisman, the 1992 Rhode Island graduation-
15 prayer decision in which Justices Kennedy and Antonin Scalia, applying the same test,
reached different results.
Endorsement test
The endorsement test, proposed by Justice Sandra Day O’Connor, asks whether a particular
government action amounts to an endorsement of religion. According to O’Connor, a
20 government action is invalid if it creates a perception in the mind of a reasonable observer
that the government is either endorsing or disapproving of religion. She expressed her
understanding of the establishment clause in the 1984 case of Lynch v. Donnelly, in which
she states, “The Establishment Clause prohibits government from making adherence to a
religion relevant in any way to a person's standing in the political community.” Her
25 fundamental concern was whether the particular government action conveys “a message to
non-adherents that they are outsiders, not full members of the political community, and an
accompanying message to adherents that they are insiders, favored members of the political
community.” O’Connor’s “endorsement test” has, on occasion, been subsumed into the
Lemon test. The justices have simply incorporated it into the first two prongs of Lemon by
30 asking if the challenged government act has the purpose or effect of advancing or endorsing
religion.
The endorsement test is often invoked in situations where the government is engaged in
expressive activities. Therefore, situations involving such things as graduation prayers,
religious signs on government property, religion in the curriculum, etc., will usually be
35 examined in light of this test.
Neutrality
While the Court looks to the endorsement test in matters of expression, questions involving
use of government funds are increasingly determined under the rubric of neutrality. Under
neutrality, the government would treat religious groups the same as other similarly situated
40 groups. This treatment allows religious schools to participate in a generally available
voucher program, allows states to provide computers to both religious and public schools,
and allows states to provide reading teachers to low-performing students, even if they
attend a religious school. (See Zelman v. Simmons-Harris, 2002, and Mitchell v. Helms,
2000.) It also indicates that the faith-based initiatives proposed by President Bush might be
45 found constitutional, if structured appropriately.
The concept of neutrality in establishment-clause decisions evolved through the years.
Cited first as a guiding principle in Everson, neutrality meant government was neither ally
nor adversary of religion. “Neutral aid” referred to the qualitative property of the aid, such
as the funding going to the parent for a secular service such as busing. The rationale in
50 Everson looked to the benefit to the parent, not to the religious school relieved of the
responsibility of providing busing for its students.

Later cases recognized that all aid is in some way fungible, i.e. if a religious school receives
free math texts from the state, then the money the school would have spent on secular texts
can now be spent on religious material. This refocused the Court’s attention not on the kind
of aid that was provided, but who received and controlled the aid. Decisions involving
5 vocational training scholarships and providing activity-fee monies to a college religious
newspaper on the same basis as other student groups showed the Court focused on the
individual’s control over the funds and equal treatment between religious and non-religious
groups.
In the 2002 case of Zelman v. Simmons-Harris, the plurality decision clearly defines
10 neutrality as evenhandedness in terms of who may receive aid. A majority of the Court
continues to find direct aid to religious institutions for use in religious activities
unconstitutional, but indirect aid to a religious group appears constitutional, as long as it is
part of a neutrally applied program that directs the money through a parent or other third
party who ultimately controls the destination of the funds.
15 While many find this approach intuitively fair, others are dissatisfied. Various conservative
religious groups raise concerns over diminishing the special place religion has historically
played in constitutional law by treating religious freedom the same as every other kind of
speech or discrimination claim. Strict separationist groups argue that providing government
funds to religious groups violates the consciences of taxpayers whose faith may conflict
20 with the religious missions of some groups who are eligible to receive funding using an
“even-handed” approach.
Conclusion
Although the Court’s interpretation of the establishment clause is in flux, it is likely that for
the foreseeable future a majority of the justices will continue to view government neutrality
25 toward religion as the guiding principle. Neutrality means not favoring one religion over
another, not favoring religion over non-religion and vice versa.
Related
Pledge plaintiff's challenge to Congress's chaplains rejected

30 Federal judge throws out atheist Michael Newdow's establishment-clause claim, releasing decision on same
day Newdow argued Pledge of Allegiance case before Supreme Court. 03.26.04
Louisiana school boards pray, defying ruling

Tangipahoa Parish board, which lost court ruling, forgoes public prayer to begin meeting, but other boards
35 pray in protest. 03.03.05
Maine high court revisits voucher question

Parents in towns with no public high school want state to cover tuition for their children to attend religious
schools. 03.27.05
40
5th Circuit upholds Bible removal from courthouse
Panel says Houston display violates establishment clause; county vows to appeal. 08.16.06
House bill aims at lawsuits filed against church-state violations

45 Act would deny attorney's fees for successful litigation of cases based on establishment clause; there's no
Senate companion bill, however. 09.27.06
High court hears atheists' challenge to faith-based programs

Issue is whether individuals have standing by virtue of their being taxpayers to bring complaint in federal
50 court system. 02.28.07
5th Circuit: Fight over Bible in courthouse display moot

Court also refuses to vacate federal judge's ruling that monument violates establishment clause. 04.25.07

'Faith-based' case tests establishment-clause lawsuit standing
By Tony Mauro Hein v. Freedom from Religion Foundation doesn't address meaning of religion clause, but
could affect whether taxpayers can sue over government efforts to accommodate religion. 12.04.06
5 Ten Commandments, nine justices, zero winners

By Charles C. Haynes Whatever the Supreme Court does in the Ten Commandments cases, neither those
who want religion endorsed in the public square nor those who want religion removed from the public square
will be satisfied. 03.06.05
10 Will Charles-Camilla marriage spark church-state divorce?

By Charles C. Haynes Entanglement of British government with Church of England becoming increasingly
awkward for everyone. 04.17.05
Church, state and Judge Roberts: Will the wall come tumbling down?
15 By Charles C. Haynes If nominee is confirmed and believes as his predecessor did, a vital bulwark against
government-endorsed religion could be weakened. 09.18.05
In Afghanistan or America, theocracy and freedom cannot co-exist

By Charles C. Haynes Release of Christian convert from Islam reminds us that protection for religious
20 liberty under a secular constitution is the only way to ensure freedom of conscience. 04.02.06
END QUOTE Establishment clause
.
QUOTE
374 U.S. 203
25 School District of Abington Township, Pennsylvania v. Schempp
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF PENNSYLVANIA
No. 142 Argued: February 27-28, 1963 --- Decided: June 17, 1963 >GO>*
30
Because of the prohibition of the First Amendment against the enactment by Congress of
any law "respecting an establishment of religion," which is made applicable to the States by
the Fourteenth Amendment, no state law or school board may require that passages from
the Bible be read or that the Lord's Prayer be recited in the public schools of a State at the
35 beginning of each school day -- even if individual students may be excused from attending
or participating in such exercises upon written request of their parents. Pp. 205-227.
228 Md. 239, 179 A.2d 698, reversed. [p*205]
END QUOTE
.
40 QUOTE Marsh v. Chambers
463 U.S. 783
Marsh v. Chambers
CIRCUIT
45
No. 82-23 Argued: April 20, 1983 --- Decided: July 5, 1983
The Nebraska Legislature begins each of its sessions with a prayer by a chaplain paid by
the State with the legislature's approval. Respondent member of the Nebraska Legislature
50 brought an action in Federal District Court, claiming that the legislature's chaplaincy
practice violates the Establishment Clause of the First Amendment, and seeking injunctive
relief. The District Court held that the Establishment Clause was not breached by the
prayer, but was violated by paying the chaplain from public funds, and accordingly
enjoined the use of such funds to pay the chaplain. The Court of Appeals held that the
whole chaplaincy practice violated the Establishment Clause, and accordingly prohibited
5 the State from engaging in any aspect of the practice.
Held: The Nebraska Legislature's chaplaincy practice does not violate the Establishment
Clause. Pp. 786-795.
(a) The practice of opening sessions of Congress with prayer has continued without
interruption for almost 200 years, ever since the First Congress drafted the First
10 Amendment, and a similar practice has been followed for more than a century in Nebraska
and many other states. While historical patterns, standing alone, cannot justify
contemporary violations of constitutional guarantees, historical evidence in the context of
this case sheds light not only on what the drafters of the First Amendment intended the
Establishment Clause to mean, but also on how they thought that Clause applied to the
15 chaplaincy practice authorized by the First Congress. In applying the First Amendment to
the states through the Fourteenth Amendment, it would be incongruous to interpret the
Clause as imposing more stringent First Amendment limits on the states than the
draftsmen imposed on the Federal Government. In light of the history, there can be no
doubt that the practice of opening legislative sessions with prayer has become part of the
20 fabric of our society. To invoke divine guidance on a public body entrusted with making
the laws is not, in these circumstances, a violation of the Establishment Clause; it is simply
a tolerable acknowledgment of beliefs widely held among the people of this country. Pp.
786-792.
(b) Weighed against the historical background, the facts that a clergyman of only one
25 denomination has been selected by the Nebraska Legislature [p784] for 16 years, that the
chaplain is paid at public expense, and that the prayers are in the Judeo-Christian tradition
do not serve to invalidate Nebraska's practice. Pp. 792-795.
675 F.2d 228, reversed.
BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN,
30 POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J., filed a dissenting
opinion, in which MARSHALL, J., joined, post, p. 795. STEVENS, J., filed a dissenting
opinion, post, p. 822.
END QUOTE Marsh v. Chambers
.
35 QUOTE Lynch v. Donnelly
465 U.S. 668
Lynch v. Donnelly
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT
40
No. 82-1256 Argued: October 4, 1983 --- Decided: March 5, 1984
Id. at 123. See also Stone v. Graham, 449 U.S. 39, 40-41 (1980) (per curiam); Wolman v.
Walter, 433 U.S. 229, 236-236 (1977). In addition, the Court's citation of Larson v.
45 Valente, 456 U.S. 228 (1982), also fails to support the Court's assertion. In Larson, we first
reviewed a state law granting a denominational preference under a "strict scrutiny"
analysis, id. at 246-251, but then concluded by finding the statute unconstitutional under
the Lemon analysis as well. Id. at 251-255. Thus, despite the Court's efforts to evade the
point, the fact remains that Marsh v. Chambers, 463 U.S. 783 (1983), is the only case in
50 which the Court has not applied either the Lemon or a "strict scrutiny" analysis. I can only
conclude that, with today's unsupported assertion, the Court hopes to provide a belated
excuse for the failure in Marsh to address the analysis of the Lemon test.
3. See Larkin v. Grendel's Den, Inc., supra, at 123; Widmar v. Vincent, 454 U.S. 263, 271
(1981); Wolman v. Walter, 433 U.S. 229, 236 (1977); Walz v. Tax Comm'n, 397 U.S. 664,
5 674 (1970). As JUSTICE O'CONNOR's concurring opinion rightly observes, this test
provides a helpful analytical tool in considering the central question posed in this case --
whether Pawtucket has run afoul of the Establishment Clause by endorsing religion through
its display of the creche. Ante at 690.
4. I find it puzzling, to say the least, that the Court today should find "irrelevant," ante at
10 681, n. 7, the fact that the city's secular objectives can be readily and fully accomplished
without including the creche, since only last Term, in Larkin v. Grendel's Den, Inc., 459
U.S. at 123-124, the Court relied upon precisely the same point in striking down a
Massachusetts statute which vested in church governing bodies the power to veto
applications for liquor licenses. It seems the Court is willing to alter its analysis from Term
15 to Term in order to suit its preferred results.
5. Several representatives of Pawtucket's business community testified that, although the
overall Christmas display played an important role in promoting downtown holiday trade,
the display would serve this purpose equally well even if the creche were removed. App.
133, 135, 139-140. The Mayor also testified that, if the nativity scene had to be eliminated,
20 the city would continue to erect the annual display without it. Id. at 115.
6. The District Court also admitted into evidence, without objection from petitioners, a
considerable amount of correspondence received by Mayor Lynch in support of
maintaining the creche in the city's Christmas display. One such letter, which appears to be
representative of the views of many, congratulates the Mayor on his efforts "to keep
25 ‘Christ' in Christmas. . . ." App. 161. For the District Court's findings concerning the
meaning of these letters, see 525 F.Supp. 1150, 1162 (RI 1981) ("Overall the tenor of the
correspondence is that the lawsuit represents an attack on the presence of religion as part of
the community's life, an attempt to deny the majority the ability to express publically its
beliefs in a desired and traditionally accepted way"). Furthermore, as the District Court
30 found,
the City has accepted and implemented the view of its predominantly Christian citizens that
it is a "good thing" to have a creche in a Christmas display . . . because it is a good thing to
"keep Christ in Christmas."
Id. at 1173.
35 7. In this regard, the views expressed by the California Supreme Court in considering a
similar issue are particularly relevant:
When a city so openly promotes the religious meaning of one religion's holidays, the
benefit reaped by that religion and the disadvantage suffered by other religions is obvious.
Those persons who do not share those holidays are relegated to the status of outsiders by
40 their own government; those persons who do observe those holidays can take pleasure in
seeing the symbol of their belief given official sanction and special status.
Fox v. City of Los Angeles, 22 Cal.3d at 803, 687 P.2d at 670 (striking down as
unconstitutional the erection of an illuminated cross in front of city hall). See also Lowe v.
City of Eugene, 264 Ore. at 644-546, 463 P.2d at 363.
45 8. See App. 104.
9. The suggestion in Mueller v. Allen, 463 U.S. 388, 403-404, n. 11 (1983), relied upon by
the Court today, see ante at 684; ante at 689 (O'CONNOR, J., concurring), that inquiry into
potential political divisiveness is unnecessary absent direct subsidies to church-sponsored
schools or colleges, derives from a distorted reading of our prior cases. Simply because the
50 Court in Lemon -- a case involving such subsidies -- inquired into potential divisiveness
while distinguishing Everson and Allen -- cases not involving such subsidies -- does not
provide any authority for the proposition that the Court in Lemon meant to confine the
divisiveness inquiry only to cases factually identical to Lemon itself. Indeed, in Walz, the
Court considered the question of divisiveness in the context of state tax exemptions to all
religious institutions. I agree, however, with JUSTICE O'CONNOR's helpful suggestion
that, while political divisiveness is "an evil addressed by the Establishment Clause," the
5 ultimate inquiry must always focus on "the character of the government activity that might
cause such divisiveness." Ante at 689. Having said that, I should also emphasize that I
disagree fundamentally with JUSTICE O'CONNOR's apparent conclusion that Pawtucket's
inclusion of the creche is not the kind of governmental act that may engender sharp division
along religious lines. The contrary is demonstrated by the history of this case.
10 10. This and similar issues relating to governmental endorsement of religious symbols has
engendered continuing controversy which has reached the courts on many occasions. See,
e.g., American Civil Liberties Union of Georgia v. Rabun County Chamber of Commerce,
Inc., 698 F.2d 1098 (CA11 1983); Florey v. Sioux Falls School Dist., 619 F.2d 1311 (CA8
1980); Allen v. Morton, 161 U.S.App.D.C. 239, 495 F.2d 65 (1973); Allen v. Hickel, 138
15 U.S.App.D.C. 31, 424 F.2d 944 (1970); McCreary v. Stone, 575 F.Supp. 1112 (SDNY
1983); Citizens Concerned for Separation of Church and State v. Denver, 508 F.Supp. 823
(Colo.1981); Russell v. Mamaroneck, 440 F.Supp. 607 (SDNY 1977); Lawrence v.
Buchmueller, 40 Misc.2d 300, 243 N.Y.S.2d 87 (Sup.Ct.1963). Given the narrowness of
the Court's decision today, see supra at 694-695, and n. 1, the potential for controversy is
20 unlikely to abate.
11. The Court makes only a half-hearted attempt, see ante at 680-681, 682-683, to grapple
with the fact that Judge Pettine's detailed findings may not be overturned unless they are
shown to be "clearly erroneous." Fed.Rule Civ.Proc. 52(a). See Pullman-Standard v. Swint,
456 U.S. 273, 285-290 (1982). In my view, petitioners have made no such showing in this
25 case. JUSTICE O'CONNOR's concurring opinion properly accords greater respect to the
District Court's findings, but I am at a loss to understand how the court's specific and well-
supported finding that the city was understood to have placed its stamp of approval on the
sectarian content of the creche can, in the face of the Lemon test, be dismissed as simply an
"error as a matter of law." Ante at 694.
30 Moreover, although the Court brushes the point aside with little explanation, see ante at
687, n. 13, the Lemon decision's three-prong analysis is not the only available standard of
review. As the Court of Appeals recognized, the "strict scrutiny" analysis adopted in
Larson v. Valente, 456 U.S. at 244-246, addresses situations in which a governmental
policy or practice grants official preference to one religious denomination over another. 691
35 F.2d 1029, 1034-1035 (CA1 1982). While I am inclined to agree with the Court of Appeals
that Pawtucket's practice fails this test, it is not necessary that I address this point in view of
my conclusion that the city's inclusion of the creche violates the standards fixed in Lemon.
Furthermore, I continue to believe that the test I set forth in Schempp is an appropriate
means of determining whether rights guaranteed by the Establishment Clause have been
40 infringed. In my view,
those involvements of religious with secular institutions which (a) serve the essentially
religious activities of religious institutions; (b) employ the organs of government for
essentially religious purposes; or (c) use essentially religious means to serve governmental
ends, where secular means would suffice
45 must be struck down. 374 U.S. at 294-295. In the present case, I particularly believe the
third element of this test is not met, since all of Pawtucket's governmental goals --
celebrating the holiday season and promoting commerce -- can be fully realized without the
use of the creche by employing such wholly secular means as Santa Claus, reindeer, and
cutout figures. See supra at 699-700.
50 12. Indeed, in the aid-to-sectarian-schools cases, the state financing schemes under review
almost always require us to focus on a specific element that may violate the Establishment
Clause, even though it is a part of a complex and otherwise secular statutory framework.
See, e.g., Meek v. Pittenger, 421 U.S. 349 (1975); Wolman v. Walter, 433 U.S. 229 (1977).
See also Committee for Public Education & Religious Liberty v. Regan, 444 U.S. 646, 662
(1980) (BLACKMUN, J., dissenting).
13. See R. Brown, The Birth of the Messiah (1977); W. Auld, Christmas Traditions (1931);
5 A. McArthur, The Evolution of the Christian Year (1953).
14. For Christians, of course, the essential message of the nativity is that God became
incarnate in the person of Christ. But just as fundamental to Jewish thought is the belief in
the "non-incarnation of God, . . . [t]he God in whom [Jews] believe, to whom [Jews] are
pledged, does not unite with human substance on earth." M. Buber, Israel and the World
10 (1948) (reprinted in F. Talmage, Disputation and Dialogue: Readings in the Jewish-
Christian Encounter 281-282 (1975)) (emphasis deleted). This distinction, according to
Buber, "constitute[s] the ultimate division between Judaism and Christianity." Id. at 281.
See also R. Reuther, Faith and Fratricide 246 (1974).
Similarly, those who follow the tenets of Unitarianism might well find Pawtucket's support
15 for the symbolism of the creche, which highlights the Trinitarian tradition in Christian faith,
to be an affront to their belief in a single divine being. See J. Williams, What Americans
Believe and How They Worship 316-317 (3d ed.1969). See also C. Olmstead, History of
Religion in the United States 296-299 (1960).
15. Both the District Court and the Court of Appeals recognized that Christmas comprises
20 both secular and sectarian elements, and that this distinction is of constitutional importance.
See 525 F.Supp. at 1163-1164; 691 F.2d at 1032-1033; id. at 1035-1037 (Bownes, J.,
concurring). In addition, many observers have explained that historically the Christmas
celebration derives both from traditional, folk elements such as gift-giving and winter
seasonal celebrations, as well as from Christian religious elements. See, e.g., J. Barnett, The
25 American Christmas, A Study in National Culture 9-14 (1954) (hereafter Barnett); R.
Meyers, Celebrations: The Complete Book of American Holidays 309-344 (1972); B.
Rosenthal & N. Rosenthal, Christmas 14-15 (1980).
16. It is worth noting that Christmas shares the list of federal holidays with such patently
secular, patriotic holidays as the Fourth of July, Memorial Day, Washington's Birthday,
30 Labor Day, and Veterans Day. See 5 U.S.C. § 6103(a). We may reasonably infer from the
distinctly secular character of the company that Christmas keeps on this list that it too is
included for essentially secular reasons.
17. See W. Auld, Christmas Traditions (1931); A. McArthur, The Evolution of the
Christian Year (1953).
35 18. As one commentator has observed:
Today, of course, it is admitted even by Catholic exegetes that [the Biblical stories
recounting Christ's birth] are a collection of largely uncertain, mutually contradictory,
strongly legendary and ultimately theologically motivated narratives, with a character of
their own. Unlike the rest of Jesus' life, there are dream happenings here and angels
40 constantly enter on the scene and leave it -- as heavenly messengers of God announcing
important events.
H. Kung, On Being A Christian 451 (E. Quinn trans., 1976) (footnote omitted). See also R.
Brown, The Birth of the Messiah 25-41 (1977); Elliott, The Birth and Background of Jesus
of Nazareth, 28 History Today 773, 774-780 (1978).
45 19. Many Christian commentators have voiced strong objections to what they consider to
be the debasement and trivialization of Christmas through too close a connection with
commercial and public celebrations. See, e.g., Kelley, Beyond Separation of Church and
State, 5 J. Church & State 181 (1963). See generally Barnett 55-57.
20. See A. Stokes & L. Pfeffer, Church and State in the United States 383 (rev. ed.1964);
50 R. Morgan, The Supreme Court and Religion 126 (1972); Barnett 68 (discussing opposition
by Jews and other non-Christian religious groups to public celebrations of Christmas). See
also Talmage, supra, n. 14.
21. See N. Frye, The Secular Scripture 14-15 (1976).
22. O. von Simson, The Gothic Cathedral 27 (1956). See also E. Panofsky Meaning in the
Visual Arts (1974). Compare Justice Jackson's explanation of his view that the study of
religiously inspired material can, in the correct setting, be made a part of a secular
5 educational program:
[m]usic without sacred music, architecture minus the cathedral, or painting without the
scriptural themes would be eccentric and incomplete, even from a secular point of view.
Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 236 (1948) (concurring
opinion).
10 23. The constitutional problems posed by the religious antecedents of the early
Thanksgiving celebrations were well recognized by Thomas Jefferson. Refusing on
Establishment Clause grounds to declare national days of thanksgiving or fasting, Jefferson
explained:
I consider the government of the United States as interdicted by the Constitution from
15 intermeddling with religious institutions, their doctrines, disciplines, or exercises. . . . [I]t is
only proposed that I should recommend, not prescribe, a day of fasting and prayer. . . .
[But] I do not believe it is for the interest of religion to invite the civil magistrate to direct
its exercises, its discipline, or its doctrines. . . . Fasting and prayer are religious exercises;
the enjoining them an act of discipline.
20 11 Jefferson's Writings 428-430 (1904) (emphasis deleted). See generally L. Pfeffer,
Church, State and Freedom 266 (1967).
24. Sutherland, Book Review, 40 Ind.L.J. 83, 86 (1964) (quoting Dean Rostow's 1962
Meiklejohn Lecture delivered at Brown University).
25. The Court's insistence upon pursuing this vague historical analysis is especially baffling
25 since even the petitioners and their supporting amici concede that no historical evidence
equivalent to that relied upon in Marsh, McGowan, or Walz supports publicly sponsored
Christmas displays. At oral argument, counsel for petitioners was asked whether there is
"anything we can refer to to let us know how long it has been the practice in this country
for public bodies to have nativity scenes displayed?" Counsel responded:
30 Specifically, I cannot. . . . The recognition of Christmas [as a public holiday] began in the
middle part of the last century . . . but specifically with respect to the use of the nativity
scene, we have been unable to locate that data.
Tr. of Oral Arg. 8.
In addition, the Solicitor General, appearing as amicus in support of petitioners, was asked:
35 "Do we have . . . evidence [of the intent of the Framers] here with respect to the display of
a nativity scene?" He responded: "Not with that degree of specificity." Id. at 22-23.
26. See S. Cobb, The Rise of Religious Liberty in America 209 (rev. ed.1970). For an
example of this notorious Puritan antipathy to the holiday, consider the remarks of Judge
Sewell, a Puritan, who in 1685 expressed his concerns about the influence of public
40 celebration of Christmas:
Some, somehow observe the day, but are vexed, I believe, that the Body of the People
Profane it; and, blessed be God, no Authority yet to compel them to keep it.
Quoted in Barnett 3.
27. See generally Barnett 4-6, 21-22; Sweet, Christmas in American History, 22
45 Chi.Theol.Sem.Register 12, 14 (Nov.1932); R. Meyers, Celebrations: The Complete Book
of American Holidays 314-315 (1972). Some indication of this denominational opposition
to the religious celebration of Christmas can be gleaned from the following account of
Christmas services in the New York Daily Times for December 26, 1855:
The churches of the Presbyterians, Baptists and Methodists were not open on Dec. 25
50 except where some Mission Schools had a celebration. They do not accept the day as a
Holy One, but the Episcopalian, Catholic and German Churches were all open. Inside they
were decked with evergreens.
Quoted in Barnett 8.
In addition, consider the account written in 1874 of Henry Ward Beecher, a
Congregationalist, describing his New England childhood:
To me, Christmas is a foreign day, and I shall die so. When I was a boy, I wondered what
5 Christmas was. I knew there was such a time, because we had an Episcopal church in our
town and I saw them dressing it with evergreens. . . . A little later, I understood it was a
Romish institution, kept up by the Romish Church. Brought up in the strictest state of New
England, brought up in the most literal style of worship . . . I passed all my youth without
any knowledge of Christmas, and so I have no associations with the day.
10 Quoted in Meyers, supra n. 15, at 315-316.
28. The role of these religious groups in the struggle for disestablishment and their place in
the history of the Establishment Clause have already been chronicled at some length in our
cases, and therefore I will not repeat that history here. See Everson v. Board of Education,
330 U.S. 1, 9-15 (1947); Engel v. Vitale, 370 U.S. 421, 428, and n. 10 (1962); Committee
15 for Public Education & Religious Liberty v. Nyquist, 413 U.S. at 770, and n. 28. For more
comprehensive discussions of the efforts of these denominations to bring about
disestablishment, see S. Cobb, The Rise of Religious Liberty in America (rev. ed.1970); B.
Bailyn, The Ideological Origins of the American Revolution 257-263 (1967); W.
McLoughlin, New England Dissent: 1630-1833 (1971); L. Pfeffer, Church, State and
20 Freedom (1967).
29. See Barnett 2-6.
30. For a compilation of these developments, see id. at 19-20.
31. Ch. 167, 16 Stat. 168. There is no suggestion in the brief congressional discussion
concerning the decision to declare Christmas Day a public holiday in the District of
25 Columbia that Congress meant to do anything more than to put the District on equal footing
with the many States that had declared those days public holidays by that time. See
Cong.Globe, 41st Cong., 2d Sess., 4805 (1870).
Significantly, it was not until 1885 that Congress provided holiday payment for federal
employees on December 25. See J.Res. 5, 23 Stat. 516.
30 32. See Barnett 11-12; Meyers, supra, n. 15. The symbol of the creche as an artifact of
Christmas celebration apparently owes its origins to St. Francis of Assisi who, according to
most accounts, first popularized the ritual reenactment of the birth of Christ by erecting a
manger attended by townspeople who played the now-traditional roles of shepherds, Magi,
etc., in the village of Greccio, Italy, in 1224. See W. Auld, Christmas Traditions 56 (1931);
35 M. Krythe, All About Christmas 85 (1954).
33. One commentator has noted that the increasing secularization of the Christmas
celebration which occurred during the 19th century led
members of the Puritan and evangelical churches [to be] less inclined to oppose the secular
celebration when it no longer symbolized the religious and political dominance of the
40 Church of England. This tolerance increased during the nineteenth century, and
undoubtedly encouraged [the] popularity [of the celebration of Christmas].
ref
Barnett 6; see also id. at 11-12, 22-23.
45 http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0465_0668_ZO.html
BURGER, C.J., Opinion of the Court
465 U.S. 668

Lynch v. Donnelly
CIRCUIT
5 No. 82-1256 Argued: October 4, 1983 --- Decided: March 5, 1984
CHIEF JUSTICE BURGER delivered the opinion of the Court.

We granted certiorari to decide whether the Establishment Clause of the First Amendment
prohibits a municipality [p671] from including a creche, or Nativity scene, in its annual
10 Christmas display.
I
Each year, in cooperation with the downtown retail merchants' association, the city of
Pawtucket, R.I., erects a Christmas display as part of its observance of the Christmas
holiday season. The display is situated in a park owned by a nonprofit organization and
15 located in the heart of the shopping district. The display is essentially like those to be found
in hundreds of towns or cities across the Nation -- often on public grounds -- during the
Christmas season. The Pawtucket display comprises many of the figures and decorations
traditionally associated with Christmas, including, among other things, a Santa Claus
house, reindeer pulling Santa's sleigh, candy-striped poles, a Christmas tree, carolers,
20 cutout figures representing such characters as a clown, an elephant, and a teddy bear,
hundreds of colored lights, a large banner that reads "SEASONS GREETINGS," and the
creche at issue here. All components of this display are owned by the city.
The creche, which has been included in the display for 40 or more years, consists of the
traditional figures, including the Infant Jesus, Mary and Joseph, angels, shepherds, kings,
25 and animals, all ranging in height from 5" to 5'. In 1973, when the present creche was
acquired, it cost the city $1,365; it now is valued at $200. The erection and dismantling of
the creche costs the city about $20 per year; nominal expenses are incurred in lighting the
creche. No money has been expended on its maintenance for the past 10 years.
Respondents, Pawtucket residents and individual members of the Rhode Island affiliate of
30 the American Civil Liberties Union, and the affiliate itself, brought this action in the United
States District Court for Rhode Island, challenging the city's inclusion of the creche in the
annual display. The District Court held that the city's inclusion of the creche in the display
violates the Establishment Clause, 525 F.Supp. 1150, 1178 (1981), which is binding on the
states through the [p672] Fourteenth Amendment. The District Court found that, by
35 including the creche in the Christmas display, the city has "tried to endorse and promulgate
religious beliefs," id. at 1173, and that "erection of the creche has the real and substantial
effect of affiliating the City with the Christian beliefs that the creche represents." Id. at
1177. This "appearance of official sponsorship," it believed, "confers more than a remote
and incidental benefit on Christianity." Id. at 1178. Last, although the court acknowledged
40 the absence of administrative entanglement, it found that excessive entanglement has been
fostered as a result of the political divisiveness of including the creche in the celebration.
Id. at 1179-1180. The city was permanently enjoined from including the creche in the
display.
A divided panel of the Court of Appeals for the First Circuit affirmed. 691 F.2d 1029
45 (1982). We granted certiorari, 460 U.S. 1080 (1983), and we reverse.
II
A
This Court has explained that the purpose of the Establishment and Free Exercise Clauses
of the First Amendment is
50 to prevent, as far as possible, the intrusion of either [the church or the state] into the
precincts of the other.
Lemon v. Kurtzman, 403 U.S. 602, 614 (1971). At the same time, however, the Court has
recognized that
total separation is not possible in an absolute sense. Some relationship between government
and religious organizations is inevitable.
5 Ibid. In every Establishment Clause case, we must reconcile the inescapable tension
between the objective of preventing unnecessary intrusion of either the church or the state
upon the other, and the reality that, as the Court has so often noted, total separation of the
two is not possible. [p673]
The Court has sometimes described the Religion Clauses as erecting a "wall" between
10 church and state, see, e.g., Everson v. Board of Education, 330 U.S. 1, 18 (1947). The
concept of a "wall" of separation is a useful figure of speech probably deriving from views
of Thomas Jefferson. [n1] The metaphor has served as a reminder that the Establishment
Clause forbids an established church or anything approaching it. But the metaphor itself is
not a wholly accurate description of the practical aspects of the relationship that in fact
15 exists between church and state.
No significant segment of our society, and no institution within it, can exist in a vacuum or
in total or absolute isolation from all the other parts, much less from government. "It has
never been thought either possible or desirable to enforce a regime of total separation. . . ."
Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 760 (1973).
20 Nor does the Constitution require complete separation of church and state; it affirmatively
mandates accommodation, not merely tolerance, of all religions, and forbids hostility
toward any. See, e.g., Zorach v. Clauson, 343 U.S. 306, 314, 315 (1952); Illinois ex rel.
McCollum v. Board of Education, 333 U.S. 203, 211 (1948). Anything less would require
the "callous indifference" we have said was never intended by the Establishment Clause.
25 Zorach, supra, at 314. Indeed, we have observed, such hostility would bring us into "war
with our national tradition as embodied in the First Amendment's guaranty of the free
exercise of religion." McCollum, supra, at 211-212.
B
The Court's interpretation of the Establishment Clause has comported with what history
30 reveals was the contemporaneous understanding of its guarantees. A significant example
[p674] of the contemporaneous understanding of that Clause is found in the events of the
first week of the First Session of the First Congress in 1789. In the very week that Congress
approved the Establishment Clause as part of the Bill of Rights for submission to the states,
it enacted legislation providing for paid Chaplains for the House and Senate. In Marsh v.
35 Chambers, 463 U.S. 783 (1983), we noted that 17 Members of that First Congress had been
Delegates to the Constitutional Convention where freedom of speech, press, and religion
and antagonism toward an established church were subjects of frequent discussion. We saw
no conflict with the Establishment Clause when Nebraska employed members of the clergy
as official legislative Chaplains to give opening prayers at sessions of the state legislature.
40 Id. at 791.
The interpretation of the Establishment Clause by Congress in 1789 takes on special
significance in light of the Court's emphasis that the First Congress
was a Congress whose constitutional decisions have always been regarded, as they should
be regarded, as of the greatest weight in the interpretation of that fundamental instrument,
45 Myers v. United States, 272 U.S. 52, 174-175 (1926). It is clear that neither the 17
draftsmen of the Constitution who were Members of the First Congress, nor the Congress
of 1789, saw any establishment problem in the employment of congressional Chaplains to
offer daily prayers in the Congress, a practice that has continued for nearly two centuries. It
would be difficult to identify a more striking example of the accommodation of religious
50 belief intended by the Framers.
C

There is an unbroken history of official acknowledgment by all three branches of
government of the role of religion in American life from at least 1789. Seldom in our
opinions was this more affirmatively expressed than in Justice Douglas' opinion for the
Court validating a program allowing release of [p675] public school students from classes
5 to attend off-campus religious exercises. Rejecting a claim that the program violated the
Establishment Clause, the Court asserted pointedly:
We are a religious people whose institutions presuppose a Supreme Being.
Zorach v. Clauson, supra, at 313. See also Abington School District v. Schempp, 374 U.S.
203, 213 (1963).
10 Our history is replete with official references to the value and invocation of Divine
guidance in deliberations and pronouncements of the Founding Fathers and contemporary
leaders. Beginning in the early colonial period long before Independence, a day of
Thanksgiving was celebrated as a religious holiday to give thanks for the bounties of
Nature as gifts from God. President Washington and his successors proclaimed
15 Thanksgiving, with all its religious overtones, a day of national celebration [n2] and
Congress made it a National Holiday more than a century ago. Ch. 167, 16 Stat. 168. That
holiday has not lost its theme of expressing thanks for Divine aid [n3] any more than has
Christmas lost its religious significance. [p676]
Executive Orders and other official announcements of Presidents and of the Congress have
20 proclaimed both Christmas and Thanksgiving National Holidays in religious terms. And,
by Acts of Congress, it has long been the practice that federal employees are released from
duties on these National Holidays, while being paid from the same public revenues that
provide the compensation of the Chaplains of the Senate and the House and the military
services. See J.Res. 5, 23 Stat. 516. Thus, it is clear that Government has long recognized --
25 indeed it has subsidized -- holidays with religious significance.
Other examples of reference to our religious heritage are found in the statutorily prescribed
national motto "In God We Trust," 36 U.S.C. § 186 which Congress and the President
mandated for our currency, see 31 U.S.C. § 5112(d)(1) (1982 ed.), and in the language
"One nation under God," as part of the Pledge of Allegiance to the American flag. That
30 pledge is recited by many thousands of public school children -- and adults every year.
Art galleries supported by public revenues display religious paintings of the 15th and 16th
centuries, predominantly inspired by one religious faith. The National Gallery in [p677]
Washington, maintained with Government support, for example, has long exhibited
masterpieces with religious messages, notably the Last Supper, and paintings depicting the
35 Birth of Christ, the Crucifixion, and the Resurrection, among many others with explicit
Christian themes and messages. [n4] The very chamber in which oral arguments on this case
were heard is decorated with a notable and permanent -- not seasonal -- symbol of religion:
Moses with the Ten Commandments. Congress has long provided chapels in the Capitol for
religious worship and meditation.
40 There are countless other illustrations of the Government's acknowledgment of our
religious heritage and governmental sponsorship of graphic manifestations of that heritage.
Congress has directed the President to proclaim a National Day of Prayer each year "on
which [day] the people of the United States may turn to God in prayer and meditation at
churches, in groups, and as individuals." 36 U.S.C. § 169h. Our Presidents have repeatedly
45 issued such Proclamations. [n5] Presidential Proclamations and messages have also issued to
commemorate Jewish Heritage Week, Presidential Proclamation No. 4844, 3 CFR 30
(1982), and the Jewish High Holy Days, 17 Weekly Comp. of Pres.Doc. 1058 (1981). One
cannot look at even this brief resume without finding that our history is pervaded by
expressions of religious beliefs such as are found in Zorach. Equally pervasive is the
50 evidence of accommodation of all faiths and all forms of religious expression, and hostility
toward none. Through this accommodation, [p678] as Justice Douglas observed,

governmental action has "follow[ed] the best of our traditions" and "respect[ed] the
religious nature of our people." 343 U.S. at 314.
III
This history may help explain why the Court consistently has declined to take a rigid,
5 absolutist view of the Establishment Clause. We have refused "to construe the Religion
Clauses with a literalness that would undermine the ultimate constitutional objective as
illuminated by history." Walz v. Tax Comm'n, 397 U.S. 664, 671 (1970) (emphasis added).
In our modern, complex society, whose traditions and constitutional underpinnings rest on
and encourage diversity and pluralism in all areas, an absolutist approach in applying the
10 Establishment Clause is simplistic, and has been uniformly rejected by the Court.
Rather than mechanically invalidating all governmental conduct or statutes that confer
benefits or give special recognition to religion in general or to one faith -- as an absolutist
approach would dictate -- the Court has scrutinized challenged legislation or official
conduct to determine whether, in reality, it establishes a religion or religious faith, or tends
15 to do so. See Walz, supra, at 669. Joseph Story wrote a century and a half ago:
The real object of the [First] Amendment was . . . to prevent any national ecclesiastical
establishment, which should give to an hierarchy the exclusive patronage of the national
government.
3 J. Story, Commentaries on the Constitution of the United States 728 (1833).
20 In each case, the inquiry calls for line-drawing; no fixed, per se rule can be framed. The
Establishment Clause, like the Due Process Clauses, is not a precise, detailed provision in a
legal code capable of ready application. The purpose of the Establishment Clause "was to
state an objective, not to write a statute." Walz, supra, at 668. The line between permissible
relationships and those barred by the Clause can no [p679] more be straight and
25 unwavering than due process can be defined in a single stroke or phrase or test. The Clause
erects a "blurred, indistinct, and variable barrier depending on all the circumstances of a
particular relationship." Lemon, 403 U.S. at 614.
In the line-drawing process, we have often found it useful to inquire whether the challenged
law or conduct has a secular purpose, whether its principal or primary effect is to advance
30 or inhibit religion, and whether it creates an excessive entanglement of government with
religion. Lemon, supra. But we have repeatedly emphasized our unwillingness to be
confined to any single test or criterion in this sensitive area. See, e.g., Tilton v. Richardson,
403 U.S. 672, 677-678 (1971); Nyquist, 413 U.S. at 773. In two cases, the Court did not
even apply the Lemon "test." We did not, for example, consider that analysis relevant in
35 Marsh v. Chambers, 463 U.S. 783 (1983). Nor did we find Lemon useful in Larson v.
Valente, 456 U.S. 228 (1982), where there was substantial evidence of overt discrimination
against a particular church.
In this case, the focus of our inquiry must be on the creche in the context of the Christmas
season. See, e.g., Stone v. Graham, 449 U.S. 39"]449 U.S. 39 (1980) (per curiam); 449 U.S.
40 39 (1980) (per curiam); Abington School District v. Schempp, 374 U.S. 203 (1963). In
Stone, for example, we invalidated a state statute requiring the posting of a copy of the Ten
Commandments on public classroom walls. But the Court carefully pointed out that the
Commandments were posted purely as a religious admonition, not
integrated into the school curriculum, where the Bible may constitutionally be used in an
45 appropriate study of history, civilization, ethics, comparative religion, or the like.
449 U.S. at 42. Similarly, in Abington, although the Court struck down the practices in two
States requiring daily Bible readings in public schools, it specifically noted that nothing in
the Court's holding was intended to
indicat[e] that such study of the Bible or of religion, when presented objectively as part of a
50 secular program of education, may not be effected consistently [p680] with the First
Amendment.

374 U.S. at 225. Focus exclusively on the religious component of any activity would
inevitably lead to its invalidation under the Establishment Clause.
The Court has invalidated legislation or governmental action on the ground that a secular
purpose was lacking, but only when it has concluded there was no question that the statute
5 or activity was motivated wholly by religious considerations. See, e.g., Stone v. Graham,
supra, at 41; Epperson v. Arkansas, 393 U.S. 97, 107-109 (1968); Abington School District
v. Schempp, supra, at 223-224; Engel v. Vitale, 370 U.S. 421, 424-425 (1962). Even where
the benefits to religion were substantial, as in Everson v. Board of Education, 330 U.S. 1
(1947); Board of Education v. Allen, 392 U.S. 236 (1968); Walz, supra; and Tilton, supra,
10 we saw a secular purpose and no conflict with the Establishment Clause. Cf. Larkin v.
Grendel's Den, Inc., 459 U.S. 116 (1982).
The District Court inferred from the religious nature of the creche that the city has no
secular purpose for the display. In so doing, it rejected the city's claim that its reasons for
including the creche are essentially the same as its reasons for sponsoring the display as a
15 whole. The District Court plainly erred by focusing almost exclusively on the creche. When
viewed in the proper context of the Christmas Holiday season, it is apparent that, on this
record, there is insufficient evidence to establish that the inclusion of the creche is a
purposeful or surreptitious effort to express some kind of subtle governmental advocacy of
a particular religious message. In a pluralistic society, a variety of motives and purposes are
20 implicated. The city, like the Congresses and Presidents, however, has principally taken
note of a significant historical religious event long celebrated in the Western World. The
creche in the display depicts the historical origins of this traditional event long recognized
as a National Holiday. See Allen v. Hickel, 138 U.S.App.D.C. 31, 424 F.2d 944 [p681]
(1970); Citizens Concerned for Separation of Church and State v. City and County of
25 Denver, 526 F.Supp. 1310 (Colo.1981).
The narrow question is whether there is a secular purpose for Pawtucket's display of the
creche. The display is sponsored by the city to celebrate the Holiday and to depict the
origins of that Holiday. These are legitimate secular purposes. [n6] The District Court's
inference, drawn from the religious nature of the creche, that the city has no secular
30 purpose was, on this record, clearly erroneous. [n7]
The District Court found that the primary effect of including the creche is to confer a
substantial and impermissible benefit on religion in general, and on the Christian faith in
particular. Comparisons of the relative benefits to religion of different forms of
governmental support are elusive and difficult to make. But to conclude that the primary
35 effect of including the creche is to advance religion in violation of the Establishment
Clause would require that we view it as more beneficial to and more an endorsement of
religion, for example, than expenditure of large sums of public money for textbooks
supplied throughout the country to students attending church-sponsored schools, Board of
Education v. Allen, supra; [n8] expenditure of public funds for transportation of [p682]
40 students to church-sponsored schools, Everson v. Board of Education, supra; [n9] federal
grants for college buildings of church-sponsored institutions of higher education combining
secular and religious education, Tilton v. Richardson, 403 U.S. 672 (1971); [n10]
noncategorical grants to church-sponsored colleges and universities, Roemer v. Board of
Public Works, 426 U.S. 736 (1976); and the tax exemptions for church properties
45 sanctioned in Walz v. Tax Comm'n, 397 U.S. 664 (1970). It would also require that we view
it as more of an endorsement of religion than the Sunday Closing Laws upheld in
McGowan v. Maryland, 366 U.S. 420 (1961); [n11] the release time program for religious
training in Zorach v. Clauson, 343 U.S. 306 (1952); and the legislative prayers upheld in
Marsh v. Chambers, 463 U.S. 783 (1983).
50 We are unable to discern a greater aid to religion deriving from inclusion of the creche than
from these benefits and endorsements previously held not violative of the Establishment
Clause. What was said about the legislative prayers in Marsh, supra, at 792, and implied
about the Sunday Closing Laws in McGowan is true of the city's inclusion of the creche: its
"reason or effect merely happens to coincide or harmonize with the tenets of some . . .
religions." See McGowan, supra, at 442.
This case differs significantly from Larkin v. Grendel's Den, Inc., supra, and McCollum,
5 where religion was substantially [p683] aided. In Grendel's Den, important governmental
power -- a licensing veto authority -- had been vested in churches. In McCollum,
government had made religious instruction available in public school classrooms; the State
had not only used the public school buildings for the teaching of religion, it had
afford[ed] sectarian groups an invaluable aid . . . [by] provid[ing] pupils for their religious
10 classes through use of the State's compulsory public school machinery.
333 U.S. at 212. No comparable benefit to religion is discernible here.
The dissent asserts some observers may perceive that the city has aligned itself with the
Christian faith by including a Christian symbol in its display, and that this serves to
advance religion. We can assume, arguendo, that the display advances religion in a sense;
15 but our precedents plainly contemplate that, on occasion, some advancement of religion
will result from governmental action. The Court has made it abundantly clear, however,
that "not every law that confers an ‘indirect,' ‘remote,' or ‘incidental' benefit upon [religion]
is, for that reason alone, constitutionally invalid." Nyquist, 413 U.S. at 771; see also
Widmar v. Vincent, 454 U.S. 263, 273 (1981). Here, whatever benefit there is to one faith
20 or religion or to all religions, is indirect, remote, and incidental; display of the creche is no
more an advancement or endorsement of religion than the Congressional and Executive
recognition of the origins of the Holiday itself as "Christ's Mass," or the exhibition of
literally hundreds of religious paintings in governmentally supported museums.
The District Court found that there had been no administrative entanglement between
25 religion and state resulting from the city's ownership and use of the creche. 525 F.Supp. at
1179. But it went on to hold that some political divisiveness was engendered by this
litigation. Coupled with its finding of an impermissible sectarian purpose and effect, this
persuaded the court that there was "excessive entanglement." The Court of Appeals
expressly declined to [p684] accept the District Court's finding that inclusion of the creche
30 has caused political divisiveness along religious lines, and noted that this Court has never
held that political divisiveness alone was sufficient to invalidate government conduct.
Entanglement is a question of kind and degree. In this case, however, there is no reason to
disturb the District Court's finding on the absence of administrative entanglement. There is
no evidence of contact with church authorities concerning the content or design of the
35 exhibit prior to or since Pawtucket's purchase of the creche. No expenditures for
maintenance of the creche have been necessary; and since the city owns the creche, now
valued at $200, the tangible material it contributes is de minimis. In many respects, the
display requires far less ongoing, day-to-day interaction between church and state than
religious paintings in public galleries. There is nothing here, of course, like the
40 "comprehensive, discriminating, and continuing state surveillance" or the "enduring
entanglement" present in Lemon, 403 U.S. at 619-622.
The Court of Appeals correctly observed that this Court has not held that political
divisiveness alone can serve to invalidate otherwise permissible conduct. And we decline to
so hold today. This case does not involve a direct subsidy to church-sponsored schools or
45 colleges, or other religious institutions, and hence no inquiry into potential political
divisiveness is even called for, Mueller v. Allen, 463 U.S. 388, 403-404, n. 11 (1983). In
any event, apart from this litigation, there is no evidence of political friction or divisiveness
over the creche in the 40-year history of Pawtucket's Christmas celebration. The District
Court stated that the inclusion of the creche for the 40 years has been "marked by no
50 apparent dissension," and that the display has had a "calm history." 525 F.Supp. at 1179.
Curiously, it went on to hold that the political divisiveness engendered by this lawsuit was
evidence of excessive entanglement. A litigant cannot, by the very act of commencing a
lawsuit, however, create the appearance [p685] of divisiveness and then exploit it as
evidence of entanglement.
We are satisfied that the city has a secular purpose for including the creche, that the city has
not impermissibly advanced religion, and that including the creche does not create
5 excessive entanglement between religion and government.
IV
JUSTICE BRENNAN describes the creche as a "re-creation of an event that lies at the
heart of Christian faith," post at 711. The creche, like a painting, is passive; admittedly it is
a reminder of the origins of Christmas. Even the traditional, purely secular displays extant
10 at Christmas, with or without a creche, would inevitably recall the religious nature of the
Holiday. The display engenders a friendly community spirit of goodwill in keeping with the
season. The creche may well have special meaning to those whose faith includes the
celebration of religious Masses, but none who sense the origins of the Christmas
celebration would fail to be aware of its religious implications. That the display brings
15 people into the central city, and serves commercial interests and benefits merchants and
their employees, does not, as the dissent points out, determine the character of the display.
That a prayer invoking Divine guidance in Congress is preceded and followed by debate
and partisan conflict over taxes, budgets, national defense, and myriad mundane subjects,
for example, has never been thought to demean or taint the sacredness of the invocation.
[n12]
20
Of course, the creche is identified with one religious faith, but no more so than the
examples we have set out from prior cases in which we found no conflict with the
Establishment [p686] Clause. See, e.g., McGowan v. Maryland, 366 U.S. 420 (1961);
Marsh v. Chambers, 463 U.S. 783 (1983). It would be ironic, however, if the inclusion of a
25 single symbol of a particular historic religious event, as part of a celebration acknowledged
in the Western World for 20 centuries, and in this country by the people, by the Executive
Branch, by the Congress, and the courts for 2 centuries, would so "taint" the city's exhibit
as to render it violative of the Establishment Clause. To forbid the use of this one passive
symbol -- the creche -- at the very time people are taking note of the season with Christmas
30 hymns and carols in public schools and other public places, and while the Congress and
legislatures open sessions with prayers by paid chaplains, would be a stilted overreaction
contrary to our history and to our holdings. If the presence of the creche in this display
violates the Establishment Clause, a host of other forms of taking official note of
Christmas, and of our religious heritage, are equally offensive to the Constitution.
35 The Court has acknowledged that the "fears and political problems" that gave rise to the
Religion Clauses in the 18th century are of far less concern today. Everson, 330 U.S. at 8.
We are unable to perceive the Archbishop of Canterbury, the Bishop of Rome, or other
powerful religious leaders behind every public acknowledgment of the religious heritage
long officially recognized by the three constitutional branches of government. Any notion
40 that these symbols pose a real danger of establishment of a state church is farfetched
indeed.
V
That this Court has been alert to the constitutionally expressed opposition to the
establishment of religion is shown in numerous holdings striking down statutes or programs
45 as violative of the Establishment Clause. See, e.g., Illinois ex rel. McCollum v. Board of
Education, 333 U.S. 203 (1948); Epperson v. Arkansas, 393 U.S. 97 (1968); Lemon v.
Kurtzman, supra; Levitt v. Committee for Public Education & Religious Liberty, 413 U.S.
472 (1973); Committee [p687] for Public Education & Religious Liberty v. Nyquist, 413
U.S. 756 (1973); Meek v. Pittenger, 421 U.S. 349 (1975); and Stone v. Graham, 449 U.S.
50 39 (1980). The most recent example of this careful scrutiny is found in the case invalidating
a municipal ordinance granting to a church a virtual veto power over the licensing of liquor
establishments near the church. Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982). Taken
together, these cases abundantly demonstrate the Court's concern to protect the genuine
objectives of the Establishment Clause. It is far too late in the day to impose a crabbed
reading of the Clause on the country.
VI
5 We hold that, notwithstanding the religious significance of the creche, the city of Pawtucket
has not violated the Establishment Clause of the First Amendment. [n13] Accordingly, the
judgment of the Court of Appeals is reversed.
It is so ordered.
1. See Reynolds v. United States, 98 U.S. 145, 164 (1879) (quoting reply from Thomas
10 Jefferson to an address by a committee of the Danbury Baptist Association (January 1,
1802)).
2. The day after the First Amendment was proposed, Congress urged President Washington
to proclaim
a day of public thanksgiving and prayer, to be observed by acknowledging with grateful
15 hearts the many and signal favours of Almighty God.
See A. Stokes & L. Pfeffer, Church and State in the United States 87 (rev. 1st ed.1964).
President Washington proclaimed November 26, 1789, a day of thanksgiving to "offe[r] our
prayers and supplications to the Great Lord and Ruler of Nations, and beseech Him to
pardon our national and other transgressions. . . ." J. Richardson, A Compilation of the
20 Messages and Papers of the Presidents 1789-1897, p. 64 (1899).
Presidents Adams and Madison also issued Thanksgiving Proclamations, as have almost all
our Presidents, see 3 A. Stokes, Church and State in the United States 180-193 (1950),
through the incumbent, see Presidential Proclamation No. 4883, 3 CFR 68 (1982).
3. An example is found in President Roosevelt's 1944 Proclamation of Thanksgiving:
25 [I]t is fitting that we give thanks with special fervor to our Heavenly Father for the mercies
we have received individually and as a nation and for the blessings He has restored,
through the victories of our arms and those of our Allies, to His children in other lands.
****
To the end that we may bear more earnest witness to our gratitude to Almighty God, I
30 suggest a nationwide reading of the Holy Scriptures during the period from Thanksgiving
Day to Christmas.
Presidential Proclamation No. 2629, 58 Stat. 1160.
President Reagan and his immediate predecessors have issued similar Proclamations. See,
e.g., Presidential Proclamation No. 5098, 3 CFR 94 (1984); Presidential Proclamation No.
35 4803, 3 CFR 117 (1981); Presidential Proclamation No. 4333, 3 CFR 419 (1971-1975
Comp.); Presidential Proclamation No. 4093, 3 CFR 89 (1971-1975 Comp.); Presidential
Proclamation No. 3752, 3 CFR 75 (1966-1970 Comp.); Presidential Proclamation No.
3560, 3 CFR 312 (1959-1963 Comp.).
4. The National Gallery regularly exhibits more than 200 similar religious paintings.
40 5. See, e.g., Presidential Proclamation No. 5017, 3 CFR 8 (1984); Presidential
Proclamation No. 4795, 3 CFR 109 (1981); Presidential Proclamation No. 4379, 3 CFR
486 (1971-1975 Comp.); Presidential Proclamation No. 4087, 3 CFR 81 (1971-1975
Comp.); Presidential Proclamation No. 3812, 3 CFR 155 (1966-1970 Comp.); Presidential
Proclamation No. 3501, 3 CFR 228 (1959-1963 Comp.).
45 6. The city contends that the purposes of the display are "exclusively secular." We hold
only that Pawtucket has a secular purpose for its display, which is all that Lemon v.
Kurtzman, 403 U.S. 602 (1971), requires. Were the test that the government must have
"exclusively secular" objectives, much of the conduct and legislation this Court has
approved in the past would have been invalidated.
50 7. JUSTICE BRENNAN argues that the city's objectives could have been achieved without
including the creche in the display, post at 699. True or not, that is irrelevant. The question
is whether the display of the creche violates the Establishment Clause.
8. The Allen Court noted that "[p]erhaps free books make it more likely that some children
choose to attend a sectarian school. . . ." 392 U.S. at 244.
9. In Everson, the Court acknowledged that "[i]t is undoubtedly true that children are
helped to get to church schools," and that
5 some of the children might not be sent to the church schools if the parents were compelled
to pay their children's bus fares out of their own pockets. . . .
330 U.S. at 17.
10. We recognized in Tilton that the construction grants "surely aid[ed]" the institutions
that received them. 403 U.S. at 679.
10 11.
In McGowan v. Maryland . . . , Sunday Closing Laws were sustained even though one of
their undeniable effects was to render it somewhat more likely that citizens would respect
religious institutions and even attend religious services.
Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 775-776
15 (1973).
12. JUSTICE BRENNAN states that "by focusing on the holiday ‘context' in which the
nativity scene appear[s]," the Court "seeks to explain away the clear religious import of the
creche,"post, at 705, and that it has equated the creche with a Santa's house or reindeer,post,
at 711-712. Of course, this is not true.
20 13. The Court of Appeals viewed Larson v. Valente, 456 U.S. 228 (1982), as commanding
a "strict scrutiny" due to the city's ownership of the $200 creche which it considers as a
discrimination between Christian and other religions. It is correct that we require strict
scrutiny of a statute or practice patently discriminatory on its face. But we are unable to see
this display, or any part of it, as explicitly discriminatory in the sense contemplated in
25 Larson.
http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0465_0668_ZC.html
O'CONNOR, J., Concurring Opinion
30 SUPREME COURT OF THE UNITED STATES
465 U.S. 668

Lynch v. Donnelly
35 CIRCUIT
No. 82-1256 Argued: October 4, 1983 --- Decided: March 5, 1984
JUSTICE O'CONNOR, concurring.

40 I concur in the opinion of the Court. I write separately to suggest a clarification of our
Establishment Clause doctrine. The suggested approach leads to the same result in this case
as that taken by the Court, and the Court's opinion, as I read it, is consistent with my
analysis.
I
45 The Establishment Clause prohibits government from making adherence to a religion
relevant in any way to a person's standing in the political community. Government can run
afoul of that prohibition in two principal ways. One is excessive [p688] entanglement with
religious institutions, which may interfere with the independence of the institutions, give
the institutions access to government or governmental powers not fully shared by
50 nonadherents of the religion, and foster the creation of political constituencies defined
along religious lines. E.g., Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982). The second
and more direct infringement is government endorsement or disapproval of religion.
Endorsement sends a message to nonadherents that they are outsiders, not full members of
the political community, and an accompanying message to adherents that they are insiders,
5 favored members of the political community. Disapproval sends the opposite message. See
generally Abington School District v. Schempp, 374 U.S. 203 (1963).
Our prior cases have used the three-part test articulated in Lemon v. Kurtzman, 403 U.S.
602, 612-613 (1971), as a guide to detecting these two forms of unconstitutional
government action. [*] It has never been entirely clear, however, [p689] how the three parts
10 of the test relate to the principles enshrined in the Establishment Clause. Focusing on
institutional entanglement and on endorsement or disapproval of religion clarifies the
Lemon test as an analytical device.
II
In this case, as even the District Court found, there is no institutional entanglement.
15 Nevertheless, the respondents contend that the political divisiveness caused by Pawtucket's
display of its creche violates the excessive entanglement prong of the Lemon test. The
Court's opinion follows the suggestion in Mueller v. Allen, 463 U.S. 388, 403-404, n. 11
(1983), and concludes that "no inquiry into potential political divisiveness is even called
for" in this case. Ante at 684. In my view, political divisiveness along religious lines should
20 not be an independent test of constitutionality.
Although several of our cases have discussed political divisiveness under the entanglement
prong of Lemon, see, e.g., Committee for Public Education & Religious Liberty v. Nyquist,
413 U.S. 756, 796 (1973); Lemon v. Kurtzman, supra, at 623, we have never relied on
divisiveness as an independent ground for holding a government practice unconstitutional.
25 Guessing the potential for political divisiveness inherent in a government practice is simply
too speculative an enterprise, in part because the existence of the litigation, as this case
illustrates, itself may affect the political response to the government practice. Political
divisiveness is admittedly an evil addressed by the Establishment Clause. Its existence may
be evidence that institutional entanglement is excessive or that a government practice is
30 perceived as an endorsement of religion. But the constitutional inquiry should focus
ultimately on the character of the government activity that might cause such divisiveness,
not on the divisiveness itself. The entanglement prong of the Lemon test is properly limited
to institutional entanglement. [p690]
III
35 The central issue in this case is whether Pawtucket has endorsed Christianity by its display
of the creche. To answer that question, we must examine both what Pawtucket intended to
communicate in displaying the creche and what message the city's display actually
conveyed. The purpose and effect prongs of the Lemon test represent these two aspects of
the meaning of the city's action.
40 The meaning of a statement to its audience depends both on the intention of the speaker and
on the "objective" meaning of the statement in the community. Some listeners need not rely
solely on the words themselves in discerning the speaker's intent: they can judge the intent
by, for example, examining the context of the statement or asking questions of the speaker.
Other listeners do not have or will not seek access to such evidence of intent. They will rely
45 instead on the words themselves; for them, the message actually conveyed may be
something not actually intended. If the audience is large, as it always is when government
"speaks" by word or deed, some portion of the audience will inevitably receive a message
determined by the "objective" content of the statement, and some portion will inevitably
receive the intended message. Examination of both the subjective and the objective
50 components of the message communicated by a government action is therefore necessary to
determine whether the action carries a forbidden meaning.

The purpose prong of the Lemon test asks whether government's actual purpose is to
endorse or disapprove of religion. The effect prong asks whether, irrespective of
government's actual purpose, the practice under review in fact conveys a message of
endorsement or disapproval. An affirmative answer to either question should render the
5 challenged practice invalid.
A
The purpose prong of the Lemon test requires that a government activity have a secular
purpose. That requirement [p691] is not satisfied, however, by the mere existence of some
secular purpose, however dominated by religious purposes. In Stone v. Graham, 449 U.S.
10 39 (1980), for example, the Court held that posting copies of the Ten Commandments in
schools violated the purpose prong of the Lemon test, yet the State plainly had some secular
objectives, such as instilling most of the values of the Ten Commandments and illustrating
their connection to our legal system, but see 449 U.S. at 41. See also Abington School
District v. Schempp, 374 U.S. at 223-224. The proper inquiry under the purpose prong of
15 Lemon, I submit, is whether the government intends to convey a message of endorsement
or disapproval of religion.
Applying that formulation to this case, I would find that Pawtucket did not intend to convey
any message of endorsement of Christianity or disapproval of non-Christian religions. The
evident purpose of including the creche in the larger display was not promotion of the
20 religious content of the creche, but celebration of the public holiday through its traditional
symbols. Celebration of public holidays, which have cultural significance even if they also
have religious aspects, is a legitimate secular purpose.
The District Court's finding that the display of the creche had no secular purpose was based
on erroneous reasoning. The District Court believed that it should ascertain the city's
25 purpose in displaying the creche separate and apart from the general purpose in setting up
the display. It also found that, because the tradition-celebrating purpose was suspect in the
court's eyes, the city's use of an unarguably religious symbol "raises an inference" of intent
to endorse. When viewed in light of correct legal principles, the District Court's finding of
unlawful purpose was clearly erroneous.
30 B
Focusing on the evil of government endorsement or disapproval of religion makes clear that
the effect prong of the Lemon test is properly interpreted not to require invalidation of a
government practice merely because it in fact causes, [p692] even as a primary effect,
advancement or inhibition of religion. The laws upheld in Walz v. Tax Comm'n, 397 U.S.
35 664 (1970) (tax exemption for religious, educational, and charitable organizations), in
McGowan v. Maryland, 366 U.S. 420 (1961) (mandatory Sunday closing law), and in
Zorach v. Clauson, 343 U.S. 306 (1952) (released time from school for off-campus
religious instruction), had such effects, but they did not violate the Establishment Clause.
What is crucial is that a government practice not have the effect of communicating a
40 message of government endorsement or disapproval of religion. It is only practices having
that effect, whether intentionally or unintentionally, that make religion relevant, in reality
or public perception, to status in the political community.
Pawtucket's display of its creche, I believe, does not communicate a message that the
government intends to endorse the Christian beliefs represented by the creche. Although the
45 religious and indeed sectarian significance of the creche, as the District Court found, is not
neutralized by the setting, the overall holiday setting changes what viewers may fairly
understand to be the purpose of the display -- as a typical museum setting, though not
neutralizing the religious content of a religious painting, negates any message of
endorsement of that content. The display celebrates a public holiday, and no one contends
50 that declaration of that holiday is understood to be an endorsement of religion. The holiday
itself has very strong secular components and traditions. Government celebration of the
holiday, which is extremely common, generally is not understood to endorse the religious
content of the holiday, just as government celebration of Thanksgiving is not so
understood. The creche is a traditional symbol of the holiday that is very commonly
displayed along with purely secular symbols, as it was in Pawtucket.
These features combine to make the government's display of the creche in this particular
5 physical setting no more an endorsement of religion than such governmental
"acknowledgments" [p693] of religion as legislative prayers of the type approved in Marsh
v. Chambers, 463 U.S. 783 (1983), government declaration of Thanksgiving as a public
holiday, printing of "In God We Trust" on coins, and opening court sessions with "God
save the United States and this honorable court." Those government acknowledgments of
10 religion serve, in the only ways reasonably possible in our culture, the legitimate secular
purposes of solemnizing public occasions, expressing confidence in the future, and
encouraging the recognition of what is worthy of appreciation in society. For that reason,
and because of their history and ubiquity, those practices are not understood as conveying
government approval of particular religious beliefs. The display of the creche likewise
15 serves a secular purpose -- celebration of a public holiday with traditional symbols. It
cannot fairly be understood to convey a message of government endorsement of religion. It
is significant in this regard that the creche display apparently caused no political
divisiveness prior to the filing of this lawsuit, although Pawtucket had incorporated the
creche in its annual Christmas display for some years. For these reasons, I conclude that
20 Pawtucket's display of the creche does not have the effect of communicating endorsement
of Christianity.
The District Court's subsidiary findings on the effect test are consistent with this
conclusion. The court found as facts that the creche has a religious content, that it would
not be seen as an insignificant part of the display, that its religious content is not neutralized
25 by the setting, that the display is celebratory and not instructional, and that the city did not
seek to counteract any possible religious message. These findings do not imply that the
creche communicates government approval of Christianity. The District Court also found,
however, that the government was understood to place its imprimatur on the religious
content of the creche. But whether a government activity communicates endorsement of
30 religion is not a question of simple historical fact. [p694] Although evidentiary submissions
may help answer it, the question is, like the question whether racial or sex-based
classifications communicate an invidious message, in large part a legal question to be
answered on the basis of judicial interpretation of social facts. The District Court's
conclusion concerning the effect of Pawtucket's display of its creche was in error as a
35 matter of law.
IV
Every government practice must be judged in its unique circumstances to determine
whether it constitutes an endorsement or disapproval of religion. In making that
determination, courts must keep in mind both the fundamental place held by the
40 Establishment Clause in our constitutional scheme and the myriad, subtle ways in which
Establishment Clause values can be eroded. Government practices that purport to celebrate
or acknowledge events with religious significance must be subjected to careful judicial
scrutiny.
The city of Pawtucket is alleged to have violated the Establishment Clause by endorsing the
45 Christian beliefs represented by the creche included in its Christmas display. Giving the
challenged practice the careful scrutiny it deserves, I cannot say that the particular creche
display at issue in this case was intended to endorse or had the effect of endorsing
Christianity. I agree with the Court that the judgment below must be reversed.
* The Court wrote in Lemon v. Kurtzman that a statute must pass three tests to withstand
50 Establishment Clause challenge.

First, the statute must have a secular legislative purpose; second, its principal or primary
effect must be one that neither advances nor inhibits religion; finally, the statute must not
foster "an excessive government entanglement with religion."
403 U.S. at 612-613 (citations omitted). Though phrased as a uniformly applicable test for
5 constitutionality, this three-part test "provides ‘no more than [a] helpful signpos[t]' in
dealing with Establishment Clause challenges." Mueller v. Allen, 463 U.S. 388, 394 (1983)
(quoting Hunt v. McNair, 413 U.S. 734, 741 (1973)).
ref
Moreover, the Court has held that a statute or practice that plainly embodies an intentional
10 discrimination among religions must be closely fitted to a compelling state purpose in order
to survive constitutional challenge. See Larson v. Valente, 456 U.S. 228 (1982). As the
Court's opinion observes, ante at 687, n. 13, this case does not involve such discrimination.
The Larson standard, I believe, may be assimilated to the Lemon test in the clarified version
I propose. Plain intentional discrimination should give rise to a presumption, which may be
15 overcome by a showing of compelling purpose and close fit, that the challenged
government conduct constitutes an endorsement of the favored religion or a disapproval of
the disfavored.
END QUOTE Lynch v. Donnelly
.
20 QUOTE LEE et al. v. WEISMAN
LEE et al. v. WEISMAN, PERSONALLY AND AS NEXT FRIEND OF
WEISMAN
certiorari to the united states court of appeals for the first circuit
No. 90-1014. Argued November 6, 1991 — Decided June 24, 1992
25 Principals of public middle and high schools in Providence, Rhode Island, are permitted to
invite members of the clergy to give invocations and benedictions at their schools'
graduation ceremonies. Petitioner Lee, a middle school principal, invited a rabbi to offer
such prayers at the graduation ceremony for Deborah Weisman's class, gave the Rabbi a
pamphlet containing guidelines for the composition of public prayers at civic ceremonies,
30 and advised him that the prayers should be nonsectarian. Shortly before the ceremony, the
District Court denied the motion of respondent Weisman, Deborah's father, for a temporary
restraining order to prohibit school officials from including the prayers in the ceremony.
Deborah and her family attended the ceremony, and the prayers were recited. Subsequently,
Weisman sought a permanent injunction barring Lee and other petitioners, various
35 Providence public school officials, from inviting clergy to deliver invocations and
benedictions at future graduations. It appears likely that such prayers will be conducted at
Deborah's high school graduation. The District Court enjoined petitioners from continuing
the practice at issue on the ground that it violated the Establishment Clause of the First
Amendment. The Court of Appeals affirmed.
40 Held: Including clergy who offer prayers as part of an official public school graduation
ceremony is forbidden by the Establishment Clause. Pp. 7-19.
(a) This Court need not revisit the questions of the definition and scope of the principles
governing the extent of permitted accommodation by the State for its citizens' religious
beliefs and practices, for the controlling precedents as they relate to prayer and
45 religiousexercise in primary and secondary public schools compel the holding here. Thus,
the Court will not reconsider its decision in Lemon v. Kurtzman, 403 U.S. 602. The
principle that government may accommodate the free exercise of religion does not
supersede the fundamental limitations imposed by the Establishment Clause, which
guarantees at a minimum that a government may not coerce anyone to support or
50 participate in religion or its exercise, or otherwise act in a way which "establishes a [state]
religion or religious faith, or tends to do so." Lynch v. Donnelly, 465 U.S. 668, 678. Pp. 7-
8.
(b) State officials here direct the performance of a formal religious exercise at secondary
schools' promotional and graduation ceremonies. Lee's decision that prayers should be
5 given and his selection of the religious participant are choices attributable to the State.
Moreover, through the pamphlet and his advice that the prayers be nonsectarian, he directed
and controlled the prayers' content. That the directions may have been given in a good faith
attempt to make the prayers acceptable to most persons does not resolve the dilemma
caused by the school's involvement, since the government may not establish an official or
10 civic religion as a means of avoiding the establishment of a religion with more specific
creeds. Pp. 8-11.
(c) The Establishment Clause was inspired by the lesson that in the hands of government
what might begin as a tolerant expression of religious views may end in a policy to
indoctrinate and coerce. Prayer exercises in elementary and secondary schools carry a
15 particular risk of indirect coercion. Engel v. Vitale, 370 U.S. 421; Abington School District
v. Schempp, 374 U.S. 203. The school district's supervision and control of a high school
graduation ceremony places subtle and indirect public and peer pressure on attending
students to stand as a group or maintain respectful silence during the invocation and
benediction. A reasonable dissenter of high school age could believe that standing or
20 remaining silent signified her own participation in, or approval of, the group exercise,
rather than her respect for it. And the State may not place the student dissenter in the
dilemma of participating or protesting. Since adolescents are often susceptible to peer
pressure, especially in matters of social convention, the State may no more use social
pressure to enforce orthodoxy than it may use direct means. The embarrassment and
25 intrusion of the religious exercise cannot be refuted by arguing that the prayers are of a de
minimis character, since that is an affront to the Rabbi and those for whom the prayers have
meaning, and since any intrusion was both real and a violation of the objectors' rights. Pp.
11-15.
(d) Petitioners' argument that the option of not attending the ceremony excuses any
30 inducement or coercion in the ceremony itself is rejected. In this society, high school
graduation is one of life'smost significant occasions, and a student is not free to absent
herself from the exercise in any real sense of the term "voluntary." Also not dispositive is
the contention that prayers are an essential part of these ceremonies because for many
persons the occasion would lack meaning without the recognition that human achievements
35 cannot be understood apart from their spiritual essence. This position fails to acknowledge
that what for many was a spiritual imperative was for the Weismans religious conformance
compelled by the State. It also gives insufficient recognition to the real conflict of
conscience faced by a student who would have to choose whether to miss graduation or
conform to the state sponsored practice, in an environment where the risk of compulsion is
40 especially high. Pp. 15-17.
(e) Inherent differences between the public school system and a session of a state
legislature distinguish this case from Marsh v. Chambers, 463 U.S. 783, which condoned a
prayer exercise. The atmosphere at a state legislature's opening, where adults are free to
enter and leave with little comment and for any number of reasons, cannot compare with
45 the constraining potential of the one school event most important for the student to attend.
Pp. 17-18.
908 F. 2d 1090, affirmed.
Kennedy, J., delivered the opinion of the Court, in which Blackmun, Stevens, O'Connor,
and Souter, JJ., joined. Blackmun, J., and Souter, J., filed concurring opinions, in which
50 Stevens and O'Connor, JJ., joined. Scalia, J., filed a dissenting opinion, in which Rehnquist,
C. J., and White and Thomas, JJ., joined.
END QUOTE LEE et al. v. WEISMAN
.
There always may be people who have an issue with religion, but what we need to address is
what is constitutionally appropriate.
The Authorities quoted above cover a wide range of decisions and in my view, allowing for
5 Victorian conditions, tax exemptions are unconstitutional. This is because both the Victorian
Colonial Parliament as well as the Framers of the (federal) Constitution (Commonwealth of
Australia Constitution Act 1900 (UK) specifically intended a separation of funding (direct or
indirect). However, I do not regard there was any intention as to discriminate as to the right of
any student, at least in the state of Victoria, to provide any student with “free education” and as
10 such the basis of providing funding to private schools (including to religious school) should be in
equal manner provided none of the funding is used for specific religious purposes. In any event
we must ensure that funding by the state and the Commonwealth are on an equal basis to all
students.
END QUOTE Chapter 456
15 .
The content of this correspondence is intended to be published also in one of my forthcoming
books, as to enable the community to be aware of what was submitted.
.
While my 9 children are all adults nevertheless having struggled for so long to try to get some
20 decent understanding as to provide education without any discrimination my reason for writing
also is so hopefully others may not have to suffer the hardship that I encountered in the past.
Likewise, students will never again be humiliated or otherwise subjected to a form of terrorism
because a school considers it more important to pursue money then to accept its first duty is to
provide any student with an environment of peace and tranquillity to receive education.
END QUOTE 1-4-2008 correspondence to Federal Education Minister and Deputy PM Julia
Gillard
.
QUOTE 8 July 2008 correspondence to Mr Kevin Rudd PM
30 How to deal constitutionally with abuses regarding CHILDREN-etc! - Fw: Contact your PM
Tuesday, 8 July, 2008 2:51 AM
From:
"Gerrit H. Schorel-Hlavka" <inspector_rikati@yahoo.com.au>
To:
35 inspector_rikati@yahoo.com.au
Cc:
jvrevolove@hotmail.com, johann5@ozonline.com.au, poetrylark@yahoo.com,
hunterman@goconnect.net, niksfree@aanet.com.au, swulrich@bigpond.net.au,
globalsov@gmail.com, csgroups@iprimus.com.au, srd_one@yahoo.com.au,
40 ariley@coolcats.net.au, mjbond@gmail.com, sadri_a@optusnet.com.au,
elspeth.young@petos.com.au, johnabbott@dodo.com.au... more
The email below was forwarded to Kevin Rudd in three parts but below reproduced as one
document.
45 --- On Tue, 8/7/08, autoreply@pm.gov.au <autoreply@pm.gov.au> wrote:

From: autoreply@pm.gov.au <autoreply@pm.gov.au>
Subject: Contact your PM: your message was successfully submitted [SEC=UNCLASSIFIED]
To: inspector_rikati@yahoo.com.au
Received: Tuesday, 8 July, 2008, 2:41 AM
50 Contact your Prime Minister
---------------------------
Thank you for your message to the Prime Minister.
Below is a copy of your comments to the Prime Minister for your records.
5 If you have supplied a postal address, a reply may be sent to you via
Australia
Post. Your message may also be forwarded to other Federal Ministers for their
consideration.
10 This is an automatically generated email. Please do not reply to this email as

this address is not monitored. If you have any
problems with this service please contact the Web Administrator through the
site feedback service at www.pm.gov.au/feedback/
15
--------------------- Copy of your comments ------------------------
Name: Mr. Gerrit Schorel-Hlavka
20 Email Address: inspector_rikati@yahoo.com.au
Postal Address: 107 Graham Road Viewbank Victoria 3084 Australia
Subject: How to deal constitutionally with abuses regarding CHILDREN-etc! Part

25
Kevin,
.
30 REFERENCE: How to deal
constitutionally with abuses regarding CHILDREN-etc!
.
yet again there are reports of children being caused to work long hours and denied proper
education in the Church of Scientology and I understand simular matters were reported about
35 Exclusive Brethern, etc.
.
While the High Court of Australia may
correctly have held that Scientology may be a RELIGION, in my view it erred in failing to
consider the history of legislation prior to federation by the State of Victoria and the intentions of
40 the Framers of the constitution as set out below.
.
http://en.wikipedia.org/wiki/Scientology_as_a_state-recognized_religion
QUOTE
[edit] Australia
45 In 1982, there was a ruling by the High Court of Australia, in Church of the New Faith v.
Commissioner Of Pay-roll Tax. The court ruled that the government of Victoria could not deny
the Church the right to operate in Victoria under the legal status of "religion." All three judges in
the case found that the Church of the New Faith ( Church of
Scientology ) was a religion. Justices Mason and Brennan said (referring to the Church of
50 Scientology as "the Corporation"):
The question to which the evidence was directed was not whether the beliefs, practices and
observances of the persons in ultimate command of the organization constituted a religion but
whether those of the general group of adherents constituted a religion. The question which the
55 parties resolved to litigate must be taken to be whether the beliefs, practices and
observances which the general group of adherents accept is a religion.
And in conclusion:
It follows that, whatever be the intentions of Mr. Hubbard and whatever be the motivation of the
5 Corporation, the state of the evidence in this case requires a finding that the general group of
adherents have a religion. The question
whether their beliefs, practices and observances are a religion must, in the state of that evidence,
be answered affirmatively. That answer, according to the conventional basis adopted by the
parties in fighting the case, must lead to a judgment for the Corporation.
10
Justice Murphy said:
Conclusion. The applicant has easily

discharged the onus of showing that it is religious. The conclusion that it is a religious institution
15 entitled to the tax exemption is irresistible.
and
The conclusion to which we have ultimately come is that Scientology is, for relevant purposes, a
20 religion. With due respect to Crockett J. and the members of the Full
Supreme Court who reached a contrary conclusion, it seems to us that there are elements and
characteristics of Scientology in Australia , as disclosed by the evidence, which cannot be
denied.
END QUOTE
25 .
30 er+of+pay+roll+tax%22&d=Z1aCOPH_QQAX&icp=1&.intl=au
QUOTE
Church of Scientology Asia Pacific Region
Office of Special Affairs
Inquiry Into The Definition Of Charities
35 And Related Organisations
C/-The Treasury,
Parkes Place,
Parkes,
A.C.T. 2600,
40 14 January, 2001
Dear Sir,
We refer to your Issues paper ("the Paper") headed "Inquiry Into The Definition Of Charities
And Related Organisations" and your invitation for submissions to be made in respect of that
Inquiry.
45 Whilst the Inquiry is concerned with "definitional issues" generally those "definitional issues"
are presumably most particularly relevant to the income tax law, and it is with that law that this
letter is concerned.
Whilst the Paper stated that submissions should be made no later than 31 December 2000, your
press release of 14 December 2001 advised that you are prepared to accept submissions lodged
50 after that date provided they are lodged by 19 January 200 1.

The Church of Scientology ("the Church") is an Australian religious institution which has a
physical presence in Australia and which incurs expenditure and pursues objectives principally in
Australia . As a consequence all the income derived by the
5 The Church is satisfied with this aspect of the Australian income tax law and does not believe
that this aspect of the Australian income tax law - so far as it is concerned - requires amendment.
It submits that it is a fundamental feature and expectation of Australian society that religious
institutions should not be subject to income tax.
It is also submitted that for organizations, such as religious organizations, that perform a wide
10 spectrum of charitable activities, it is not appropriate to define the various activities differently
(or to attempt to
distinguish between commercial and non-commercial activities undertaken by the religious
organization).
Commercial activities undertaken by a religion are always ancillary to the religion; they are
15 designed to enable the furtherance of the religion (and associated charitable activities undertaken
by the religion). As Murphy J. stated in the Church of the New Faith v. Commissioner of Pay-
roll Tax (Vic.) 83 ATC 4652 "Commercialization is so characteristic of organized religion that it
is absurd to regard it as [disqualifying a religion]".
20 integral to the religion, and should not be discretely treated for income tax purposes. Not
only would any such treatment be contrary to community expectations, but would introduce
further technical and administrative complexities into the taxation law.
Notwithstanding our general acceptance of the current tax law there are a number of overseas
entities associated with the Church, which are not exempt, or may not be exempt, from
25 Australian income tax since they do not have a physical presence in Australia .
In particular there are various overseas affiliates of the Church either being its parent church, or
various entities established to support that parent church and other churches affiliated with that
church, which provide
services to the Church. Various payments are made to these overseas affiliates. Royalty
30 withholding tax might be payable in respect of some of these payments so made.
It is submitted that payments made by a charity (including a religious organization) exempt from
Australian tax to an overseas institution (which is exempt from tax in that overseas jurisdiction)
should not be subject to Australian tax (including withholding tax).
Such an exemption would reflect the policy of Australian tax law - that is, that n Australian
35 charity (including an Australian religious institution) should not be subject to taxation. Given that
normally a payee requires a payer to absorb withholding tax the imposition of withholding tax on
a
payment made by an Australian charity is in substance normally the imposition of a tax on that
Australian charity.
40 Whilst this is the case in respect of withholding tax generally, the effective imposition of tax on
an Australian charity might be said to be particularly contrary to the spirit of the tax law, where
tax is levied on a payment made by one charity to another (albeit that that other charity does not
have a presence in Australia ).
Yours faithfully,
45 Rev. Vicki Hanna
Church of Scientology
END QUOTE
.
Adelaide Company of Jehovah's Witnesses Incorporated -v- The Commonwealth [1943] HCA
50 12; (1943) 67 CLR 116 (14 June 1943)
RICH J
.
The attitude of the law both civil and criminal towards all religions depends fundamentally on
the safety of the State.
.
5 Mr. HIGGINS (Victoria).-I was not aware that this clause would come on so soon; but,
inasmuch as I have spoken to the words in the preamble so recently, I think I shall be able
to save honorable members the infliction of a long speech on this subject. My idea is to
make it clear beyond doubt that the powers which the states individually have of making
such laws as they like with regard to religion shall remain undisturbed and unbroken, and to
10 make it clear that in framing this Constitution there is no intention whatever to give to the
Federal Parliament the power to interfere in these matters. My object is to leave the
reserved rights to the states where they are, to leave the existing law
as it is; and just as each state can make its own factory laws, or its own laws as to the
hours of labour, so each state should be at full liberty to make such laws as it thinks fit
15 in regard to Sunday or any other day of rest.
.
Mr. BARTON.-Yes; those who say that the people are always
right might say that it was a good thing. My honorable and learned friend will have many
20 successors, and so shall I. But if the enlightenment of this day supposes itself to be right in
saying that the free exercise of religion should not be prohibited, the question arises, should
not a provision to that effect be placed in the Constitution? The trouble arises when you try
to insert a proviso modifying this prohibition. For instance, if it were desired to prevent the
application of the clause to any fiendish or demoralizing rite, that might be done by
25 inserting the words "so long as these observances are inconsistent with the criminal laws of
the state," because if there were no criminal law in existence at the time with which these
observances were inconsistent, it would be possible for the state to pass such a law, and so,
to use a common expression, euchre the whole business. I think, however, that we can do
remarkably well without the clause at
30 all.
.
As such States have every power to deal with criminal offences against State laws.
35 Below I have quoted a submission by Scientology for being a religion and for this being able to
get tax exemption because of the raising of funds for religion including commercial activities.
This I
view is in fact unconstitutional.
I understand that the High Court of Australia made a ruling that Scientology is a religion, but in
40 my view this cannot whatsoever make a case for tax-exemption because;
.
71-391a001doc-State Aid to Religion Abolition Act 1871
2. Definitions
45 inconsistent with the context or subject matter have the respective meanings

"denomination" shall mean any church religious body sect or congregation
or the members of any church formed into or acting as a body of persons for
religious purposes of what kind of faith or form of
belief soever;
5 .
tax exempted.
.
.
15 prohibiting the free exercise of any religion, and no religious test
.
20
Constitution?
Mr. BARTON.-No; you have only two powers of spending money, and a
church could not receive the funds of the Commonwealth under either of them.

.
honorable and learned member refers was rendered
30 necessary by the fact that there is not the definite division of powers in that Constitution
that we have in our Constitution. I cannot imagine that clause 52 gives any ground from
which it could be argued that the Federal Parliament has the right to interfere in
regard to the exercise of religion, or to deal with religion in any way.
.
35 The Commonwealth of Australia therefore cannot interfere with religious practices but the States
can. The Commonwealth neither can provide FUNDING for religious practices by way of
taxation exemptions or tax deductions and the State of
Victoria clearly already prior to federation separated State and Church and as such when it
joined the federation it had this embedded principal in the Constitution.
40 .
Therefore I view that any DENOMINATION cannot have tax concessions on the basis that it is a
religion because this is unconstitutional, both for the commonwealth and the State of Victoria .
.
Further, I view that the Commonwealth
45 for itself should determine what is deemed to be for federal purposes a not-for-profit
organisation AND IT CANNOT ALLOW REGISTRATION OF ANY ORGANISATION ON
BASIS OF BEING A RELIGION.
.
Therefore there must be a separation of non-commercial purposes and commercial purposes and
profits must be made taxable. We must stop this elaborate rip of upon taxpayers by
denominations by stopping tax exemptions for denominations.
5 .
This has nothing to do with the social welfare work performed by
denominations, as where the religious body can show that it spend monies towards assisting the
poor, regardless of his/her religious beliefs or the lack thereof, then it would be appropriate for
those purposes for the Commonwealth to allow registration as a not0-for-profit organisation for
10 this part.
.
The USA courts have extensively canvassed the issue of funding in particular to religious bodies
providing education and I have in my past published books in the INSPECTOR-RIKATI® series
extensively canvassed this and as such do not need to repeat the same, however it came down to
15 it that the Federal Government is to fund education cost of students attending religious schools
provided that the funding was used for secular
and so non-religious purposes.
.
The Commonwealth clearly does have legislative powers to prohibit any not-for-profit
20 organisation to be entitled to the registration as a not-for-profit organisation where it fails to
provide for compliance with State and/or federal laws regarding conditions of under age children
and/or where the not-for-profit organisation uses a condition of secrecy towards State and/or
federal law enforcement officers and other State and/or federal staff to ensure that laws
governing children are not breaches.
25 .
What this would amount to is that any not-for-profit organisation, regardless of being a
denomination or not, would be put on notice that if they are employing children contrary to legal
provisions under State and/or federal laws then their registration will be deemed invalid and they
will be liable for taxation in an ordinary manner as any other business.
30 .
Currently we have organisations such as Exclusive Brethern and the church of Scientology and
others who are purported to be not-for-profit organisation but are in a veil of secrecy that defies
to be a
not-for-profit organization. Hence, any business that purposes to be a not-for-profit organisation
35 must be deemed accountable to the general public, as after all it is depriving the general public of
taxation being paid by it, and therefore in all its conduct must remain transparent.
.
Take for example the Salvation Army. For tax exemption purposes it would require to be divided
in two parts for accountability. One part would be for being a not-for-profit organisation where it
40 can account for all monies raised being invested into assisting people regardless of their religious
beliefs and another part in its religious collections that cannot be tax exempted as to allow this is
unconstitutional.
.
Therefore, any organisation that seeks registration for not-for-profit organisation must separate
45 its religious part as this cannot be allowed to be tax exempted.
.
QUOTE
has a physical presence in Australia and which incurs expenditure and pursues objectives
50 principally in Australia . As a consequence all the income derived by the Church is exempt from
Australian income tax.
END QUOTE
.
Again
.
5
Constitution?
Mr. BARTON.-No; you have only two
powers of spending money, and a church could not receive the funds of the
10 Commonwealth under either of them.
[start page 1773]

.
Providing tax exemptions clearly is providing funding.
.
.
Again, there is no issue where tax-exemption is provided for secular matters. However, if any
20 denomination is limiting its assistance to the needy to religious membership of a denomination
then it cannot be deemed to be entitled to be classified as a not-for-profit organisation.
.
As I understand it about the assistance provided by the Salvation Army it does not stipulate and
neither enforce any religious conduct or membership but will assist any person irrespective of
25 having a religious beliefs. As such, this is the kind of welfare assistance I deem for that part
would be entitled to receive not-for-profit tax exemption, where as other denominations that are
ambivalent in
providing services and/or those who require membership of their denomination could not be
deemed to classify for not-for-profit tax exemptions.
30 .
When any organisation (religious or not) pursues a tax exemption it must be deemed that the
organisation is telling the world that they are in it for the good of others and not seeking to make
a profit at the expense of the tax payers. Hence, such organisations must then be held to comply
to a certain code of conduct that they will observe all relevant State and Federal legal provisions
35 and failing to do so their status as a not-for-profit organisation will be deemed to be void.
.
Organisations who now may exploit under age children may then realise that they better do not
because they could loose their status of being a not-for-profit organisation and so applicable from
when the breaches of law were occurring. As such, even if breaches were finally detected some
40 years later having been occurring over the years the taxation would then have to be adjusted for
those years that the breaches were found to have occurred.
.
HANSARD
8-2-1898 Constitution Convention Debates
45 Mr. HIGGINS.-I did not say that it took place under this clause, and the honorable
if they had another
motive.
.
Therefore any ;legislation targeted upon religions, at least by the commonwealth, could be
deemed unconstitutional, but if it were to apply to all businesses seeking not-for-profit
registration then it would not be unconstitutional.
5
.In my past published books I exposed how a not-for-profit (non-religious) organisation was
having children allegedly in apprenticeship even so after a
mere few weeks to tell them there was no work while the not-for-profit organisation was
collecting thousands of dollars in apprenticeship training.
10 .
In my view this company was abusing the not-for-profit registration by making huge profits.
Hence I view that any not-for-profit organisation must declare every cent it spend so the public
can hold them accountable. Also that there must be a legislation in place that any not-for-profit
organisation must not exceed a certain percentage of wages, etc.
15 .
As I understand it we had a councillor who reportedly raised hundreds of thousands of dollars
and about 10% ended up with charities and the rest he appeared to have paid to himself for
consultancy fees. This to me underlines the gross abuse and mismanagement of the not-for-profit
registration and the tax exemption by this.
20 .
We also have that collections for not-for-profit organisations are being done by companies who
then may pay less then 10% of donations to the charity. Yet the entire donation somehow is made
tax deductible. What we therefore have is that if I were to own a not-for-profit business and were
wanting to reduce my own taxable income then I could effectively make a donation to my own
25 not-for-profit
business and score tax-emption for the monies received from this not-for-profit business and
also have a tax deduction for the monies so donated. A double whammy, so to say.
.
In my view, the registration for not-for-profit companies should be federally controlled and then
30 states could adopt the federal system. It would then exclude not-for-profit registration on pure
religious grounds!
.
It would mean that no longer tax payers are ripped of by the unpaid taxes being sent overseas!
After all
35 whenever any not-for-profit organisation is excluded from paying taxes it means that taxpayers
have to make up the shortfall!
.
We either have a constitution or we don’t and it is long overdue that we adhere to the
constitutional provisions and limitations.
40 .
.
45 Regretfully, you will find that the High court of Australia in its various judgements fails to
appropriately consider the intentions of the Framers of the Constitution
Still, having set out the above I urge that you ensure urgent and appropriate action is taken so
any business that seeks to have a not-for-profit registration for tax-exemption purposes does earn
that right by being secular in its conduct and obeys all legislative provisions such as those
50 applicable to under age children, including their education and work hours.
.
Gerrit
.
.
8-7-2008
5 Mr. G. H. Schorel-Hlavka MAY JUSTICE ALWAYS PREVAIL® 107 Graham Road Viewbank,
3084, Victoria, Australia Ph/Fax 03-94577209 International 61394577209 .
"CONSTITUTIONALIST" and Author of books in the INSPECTOR-RIKATI® series on
certain constitutional and other legal issues.
Website; http://www.schorel-hlavka.com Blog; http://au.360.yahoo.com/profile-
10 ijpxwMQ4dbXm0BMADq1lv8AYHknTV_QH .
"JUSTICE IS IN THE EYE OF THE BEHOLDER AND CLOUDED BY HIS/HER

SIGHT DEFICIENCY"
END QUOTE 8 July 2008 correspondence to Mr Kevin Rudd PM
15 .
QUOTE Chapter NOT FOR PROFIT-MUNICIPAL COUNCILS-ETC
.
Chapter NOT FOR PROFIT-MUNICIPAL COUNCILS-ETC
.
20 * Gerrit, in your past communications with Prime Minister Kevin Rudd and the ATO
(Australian Taxation Office) did you ever raise the issue that the Commonwealth cannot fund
religion and so neither provide tax concessions?
.
**#** INSPECTOR-RIKATI®, actually I did but my 8 July 2008 correspondence to Kevin has
25 so fat not been addressed as I have not received any response in that regard and with the ATO I
think they better get themselves more competent lawyers who at least have some understanding
as to what is constitutionally applicable before they present themselves again before the High
Court of Australia.
.
30 * Why is that?
.
**#** Well they had this case Church of the New Faith v Commissioner of Pay-Roll Tax (Vic)
1983 154 Clr 120 [1983] HCA 40; (1983) 154 CLR 120 (27 October 1983) regarding the
provisions of Pay-roll Tax Act 1971 (Vict.),s. 10(b) and in it was stated “the corporation then
35 appealed to the Full Court.” And “and the corporation now applies for special leave to
appeal against that dismissal.”.
Well when you check the Commonwealth Constitution Act 1900 (UK) you find that it provides
legislative powers for the Commonwealth in regard of; “(xx) foreign corporations”, and trading
or financial corporations formed within the limits of the Commonwealth” as such anything to
40 deal with “companies” is a federal power not a state power.
Further, the Colony of Victoria legislated a separation of State and Church by way of 71-
391a001doc-State Aid to Religion Abolition Act 1871
QUOTE
2.Definitions
50 members of any church formed into or acting as a body of persons for
END QUOTE
.
5 tax exempted.
.
The High Court of Australia in its judgment failed to take consideration of this.
.
QUOTE
10 116 Commonwealth not to legislate in respect of religion
15 under the Commonwealth.
END QUOTE
.
QUOTE
20 Mr. REID.-I suppose that money could not be paid to any church under this
Constitution?
[start page 1773]
25 END QUOTE
.
QUOTE
30 honorable and learned member refers was rendered necessary by the fact that there is not
the definite division of powers in that Constitution that we have in our Constitution. I
cannot imagine that clause 52 gives any ground from which it could be argued that
the Federal Parliament has the right to interfere in regard to the exercise of religion,
or to deal with religion in any way.
35 END QUOTE
.
Scientology it self submitted in the past;
40 8&p=%22Church+of+the+New+Faith+v+Commissioner+of+Pay-Roll+Tax%22&fr=slv1-
QUOTE
45 It is submitted that all of the activities undertaken by a religion should be regarded as being
integral to the religion, and should not be discretely treated for income tax purposes.
END QUOTE
.

Because of the submission “It is submitted that all of the activities undertaken by a religion
should be regarded as being integral to the religion” in fact then all of its activities are by this
subject to ordinary taxation provisions and none can be excluded as otherwise it would offend
the provisions of the constitution and the principles embedded in it.
5 .
When the Framers of the Constitution debated “excise and customs” duties it was Edmund
Barton (later Prime Minister and there after judge of the High Court of Australia) who made
clear that States could not interfere with the Commonwealth of Australia legislative powers
whatsoever and would be bound to pay customs and excise duties as like anyone else as
10 otherwise the States could get railway rails cheaper then other businesses and that was not what
was intended by this.
Therefore, the issue the High Court of Australia was dealing with if the Church of the New Faith
(now known as Scientology) was a religion or not in my view was showing the High court of
Australia never comprehended what was constitutionally applicable as the State of Victoria
15 bound by the State Aid to Religion Abolition Act 1871 had federated on the basis of separation
of State and church and that no longer funding could be provided.
.
But, it goes much further then that, the Commonwealth by s116 of the constitution cannot accept
the registration of any company as a denomination organisation to exclude it from taxes and
20 hence the not for profit organisation on basis of being a denomination is unconstitutional both for
the State and/or the Commonwealth.
.
More over, no company can register in a State as a NOT FOR PROFIT organisation as the
Framers of the constitution made clear that once the commonwealth exercised any powers
25 provided to it in the Constitution then from that day the Commonwealth legislated the States no
longer could exercise any legislative powers. With taxation it was held that States had state
legislative powers but could not levy tax on any area that the Commonwealth had legislative
powers and exercised this. With other word, if the Commonwealth were to legislate for a land tax
then the States would be ousted to raise land taxes.
30 .
Getting back to the NOT FOR PROFIT registrations, the States therefore have no constitutional
powers to legislate for any DENOMINATION to be excluded as a company from taxes of any
kind because company legislation is a Commonwealth power.
.
35 The Commonwealth cannot provide funding for religions and so neither tax deductions and tax
rebates or for that matter for others to have tax deductions because they donated to a
denomination (religious organization).
.
There are organizations, being it that they are religious organizations or not who do provide
40 services to the community and the Salvation Army is one of them.
When one consider the numerous USA Supreme Court decision in regard of the same provisions
in the USA Constitution they made it very clear that for example funding for non religious
purposes (such as school books) would be appropriate provided the monies were not used for
religious matters. As such, the issue is that if a denomination (religious organization) split its
45 religious services section from its welfare organization and keep them separate than I view the
commonwealth could allow for tax concessions for the welfare section services albeit excluding
the religious services. As such the religious organization has the onus to show separate
bookkeeping as to avoid monies being transferred to its religious service section.
.
50 The states who provide pay roll tax, etc, also by the separation of Church and State has to apply
the same.
.
The Commonwealth cannot adopt State NOT FOR PROFIT provisions but must legislate for
itself in that regard and failing there being any then the commonwealth must re-assess all such
NOT FOR PROFIT registered companies and calculate ordinary taxation.
.
5 As Edmund Barton (Later Prime Minister) made clear that the State couldn’t interfere with
Commonwealth legislative powers.
.
* What about local councils?
.
10 **#** You mean “Municipal Councils” as constitutionally the “State Government” is the “local
council”?
.
* You know what I mean.
.
15 **#** They can neither exclude religious organizations of rates and other taxes on basis of
belonging to a denomination or because they are registered as a NOT FOR PROFIT
organization as it is likewise bound by the federal constitution.
.
* What about councillors making special grants to a religious organization, you know how
20 councillors in Banyule City Council can allocate up to $20,000.00 towards their pet-projects?
.
**#**
**#** First of all, it is in my view a sheer and utter nonsense for any councillor to play Santa
Clause with the monies extorted from ratepayers, where they are struggling to survive and make
25 end’s meet.
.
* What do you mean with extorted?
.
**#** If it is not for a lawful purpose then I view it is extortion using ordinary powers to achieve
30 the payments.
.
* Are you saying that a Council cannot fund religious services projects, say for replacement of
stained window or that kind?
.
35 **#** Precisely. It is a religious matter and therefore no council has the power to provide
funding for anything that relates to religion.
.
With the Salvation Army you will find that it is not concerned with what religion you practice if
any at all, it simply provides assistance to people in need, whom ever they are, and hence this
40 part in my view appropriately can be funded by tax payers being it by way of tax deductions, tax
exclusion, etc. However if the Salvation Army wanted a new carpet in a chapel then this would
not be within the powers of Federal or State government to provide for this in any way
whatsoever, not even to allow for tax deduction for those who fund it and municipal councils are
bound by the restrictions that applied to State Governments.
45 .
The State granted municipal councils certain powers and therefore it cannot grant more powers to
a municipal council it doesn’t have itself.
.
* What about the exclusion of political parties from taxation, like the one that now has a Senator
50 in the Federal Parliament?
.

**#** Firstly, if the party is a religious organization it would be excluded from any tax exclusion
not applicable otherwise to other organizations. Secondly, where it deal with non religious
political parties in general then it neither can provide for tax exclusions unless this so was
registered under Commonwealth law for so far we deal with political parties registered as
5 companies.
Most businesses are so to say jumping on the bandwagon to register as some form of corporation
to try to exclude personal liability to some extend not realizing that by this they are falling under
federal legislation.
10 * What about states registering companies?

.
**#** You cannot have both the Commonwealth and the States covering the same legislative
power and as I indicated above that the Commonwealth was provided with this legislative power
then technically any State registration as to any company is to be deemed NULL AND VOID
15 from the day the Commonwealth commenced to exercise its legislative powers.
.
* What about any State registration prior to the Commonwealth commenced to legislate?
.
**#** the Framers of the Constitution made clear that once the Commonwealth commenced to
20 legislate then all this was the only issue however those who had complied with State legislation
now fell under Commonwealth legislation. They also made clear that the Commonwealth could
not make a criminal by retrospective legislation, etc. As such, if a company was validly
registered under State legislation and the Commonwealth then commenced to legislate for the
Commonwealth then had to keep in mind that it would not cause companies to be in breach of
25 law where they had acted validly under State laws. As such, the Commonwealth has an onus that
when it exercises its legislative powers to ensure it does so in a reasonable manner. It may be for
example that the Commonwealth may object to certain parts of State registration legislation and
for this legislate a time period for companies to adjust to new Commonwealth powers. However,
because the commonwealth must provide legislation for “the whole of the Commonwealth” it
30 cannot therefore exclude some but not others from its legislation. Meaning that at all times the
legislation must be to provide all companies the same regime.
.
* What happened about your objection to the GST when you wrote to the ATO?
.
35 **#** As I stated the O’Meara decision by the Federal Court of Australia was ill conceived
because the Framers of the Constitution made clear that no Taxation legislation in its final format
can be applied to raise taxes from more then one item and they specifically referred to the “rail”
and the “post” (on farmers land). Now the GST might be deemed to be a supply tax but still it
applies then to both the “rail” and the “post” and therefore is unconstitutional. You can pretend it
40 applies to service or whatever but in the end the end result is the same it applies to more then one
article and therefore unconstitutional.
QUOTE
45 Mr. HIGGINS:
END QUOTE
.
50 QUOTE
which is a Bill has become law. if it deals with anything more than the imposition of
unconstitutional and void; so when an Act affecting to deal with more than taxation,
5 contravention of this provision, that would be an unconstitutional and therefore a
void Act.
END QUOTE
.
While the ATO in its correspondence to me claimed that the GST is a tax on businesses, the truth
10 is that the Senate inquiry to investigate the application of a GST dealt with a tax on consumers.
There is no constitutional power for the commonwealth (for the Crown) to give taxation powers
to traders and neither to impose to their likings the GST or not. As the Framers of the
Constitution made clear Commonwealth law could only be enforced through State Courts by
Judicial decision and hence no Municipal City Council either has a constitutional position to
15 charge GST in regard of ratepayers because it is not a judicial decision, as no municipal council
had judicial powers. As I explained previously also to the ATO all unconstitutionally collected
GST must be refunded to the people against whom it was charged.
.
20 federal laws in the USA;
25 land, and any statute, to be valid, must be in agreement. It is impossible for both the
as follows:
30 unconstitutionality dates from the time of its enactment, and not merely from the date of
35 duties, confers no rights, creates no office, bestows no power or authority on anyone,
40 No one is bound to obey an unconstitutional law and no courts are bound to enforce
it.
.
45 Quick & Garran's "Annotated Constitution of the Commonwealth of Australia" more accurately

.
5 Mr. GORDON.-
.
Again;
10 and it leaves open the whole judicial power once the question of ultra vires is raised
.
Actually “Chapter 607-ATO & GST-TELSTRA” of my previous published book set this out in
more details as well as other matters.
.
15 Hansard 8-2-1898 Constitutional Convention Debates
We are making a Constitution which is to
Mr. O’CONNOR.-I do not think so.
endure, practically speaking, for all time. We do not know when
some wave of popular feeling may lead a majority in the
Parliament of a state to commit an injustice by passing a law
20 that would deprive citizens of life, liberty, or property without
due process of law.
.
And
Mr. O’CONNOR.-No, it would not; and, as an honorable member reminds me, there is a
25 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.
And
Mr. O’CONNOR.-With reference to the meaning of the term due process of law, there is
in Baker's Annotated Notes on the Constitution of the United States, page 215, this
30 statement-
Due process of law does not imply that all trials in the state courts affecting the property of
persons must be by jury. The requirement is met if the trial be in accordance with the
settled course of judicial proceedings, and this is regulated by the law of the state.
If the state law provides that there shall be a due hearing given to the rights of the parties-
35 Mr. BARTON.-And a judicial determination.

Mr. O’CONNOR.-Yes, and a judicial determination-that is all that is necessary.
.
Mr. BARTON.-Yes; and here we have a totally different position, because the actual right
40 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 Commonwealth of Australia has no constitutional powers of the liberty of a person, as
this lies with the States.
.
5 Mr. HIGGINS.-But suppose they go beyond their power?
.
10 I take the position that therefore Banyule City Council has no legal position to apply GST
without first having obtained a Court order to do so. To allow otherwise would mean the
Commonwealth would place itself above the Constitution and disregard the judiciary specifically
established to determine any conflict of laws.
.
15 It may be odd for a city council having to pursue legalities of matters but then if Banyule City
Council seeks to enforce GST legislation contrary to my objection then it cannot do anything
unless it first obtains a Court order by way of JUDICIAL DETERMINATION,
.
Lets try to use an example.
20 If the Commonwealth were to legislate that I can remove any funds Banyule City Council
collected and hand it over to the Federal treasury, would not then Banyule City Council in the
first place argue that the Commonwealth lack such constitutional powers and therefore it isn’t
relevant if the legislation authorize me to remove their funds (monies) as unless there is a court
order to provide for it the legislation enacted by the Commonwealth has no legal force?
25 And likewise if Banyule City Council is extorting monies from me under the purported GST
provisions I am equally entitled to demand it provide me with a copy of the relevant court order
to prove it is duly and properly authorized to do so. Indeed, where it squanders my rates also on
items I deem unconstitutional it even further is an issue I hold the Banyule City Council as any
other city council should do is to prove their judicial order to be entitled to act as such.
30 .
If a police officer attends to my residence without WARRANT issue and attempts to enter my
property I have my common law rights to prevent this.
.
If a police officer attends to my property and seek to remove from my property under all kinds of
35 threats my motor vehicle without a WARRANT issue again I have my common law rights to
oppose this.
.
I do not need to go to Court to obtain a prohibition order against the police as by common law
not even the queen can enter my property without my consent.
40 .
Banyule City Council as such, while not entering my property as to the land I owe, by charging
GST are equally removing from me under their demands “property” ( monies) by inducing me to
pay rates that include GST.
.
45 As like the police officer I do not have to go to Court to oppose this unconstitutional conduct
rather Banyule City Council has to prove it acts lawful by way of Court determination against
me, that it can charge GST.
.
As I corresponded to Prime Minister Kevin Rudd where is the constitutional powers to
50 legislate as to environment and cause Banyule City Council to incur about 1.2 million dollars to
change light globes for special light globes?

In my view there simply is not such legislative powers and I view that Banyule City Council
before considering any of this kind of legislation to be enforceable should have had matters
appropriately researched.
I am well aware that more then likely no councillor ever considered the fact that he/she must act
5 appropriately and cannot merely demand monies from ratepayers irrespective if the purpose for
which the monies or part thereof is being use is unconstitutional/unlawful but where they are
councillors they better realize they do have obligations towards ratepayers.
The same is with Banyule City Council as like other councils and organizations such as
WATER corporations, etc, having somehow been authorized by the State government to apply
10 overdue interest and other charges. Well the Framers of the Constitution provided corporations
powers to the Commonwealth and also provided for
Constitution. Subsection 51
QUOTE
(xiii) banking, other than State banking; also State banking
15 extending beyond the limits of the State concerned, the
incorporation of banks, and the issue of paper money;
END QUOTE
.
Therefore, it would be UNCONSTITUTIONAL for State Parliaments to legislate for municipal
20 councils, water boards, and others to be able to charge interest rates as they are governed under
the term of “trading companies” (as was applicable at the time of federation – and therefore still
applicable) as to being deemed to be businesses that are not banking companies but are
nevertheless lending monies, etc.
.
25 Yet we find scrupulous municipal councils, water boards and others relentlessly pursuing people
even to use debt collectors to enforce also interest even so no constitutional position as such
exist.
Unless such companies are within commonwealth law registered to be allowed to operate as
“trading companies” I view they have no power to enforce such interest and other charges.
30 .
Indeed it circumvent the DUE PROCESS that is applicable within the constitution because it
allows a form of terrorism upon the citizen.
To give an example.
Telstra engaged a few years back a debt collector as to try to collect about $700.00 plus from me
35 even so the bill was not in my name and neither authorized for this. Indeed, I had never visited
the location where the bill was created.
Telstra had nevertheless disregard privacy laws and disclosed my identity and the Debt Collector
Agency then began its campaign of terrorist to try to get me to pay the outstanding account.
Finally getting fed up with it I wrote to them that I would pursue a court order against them if
40 they did not stop. They did.
.
Then I have this current matter with a WATER board that delivered WATER to one of my
properties on request of the person who occupies the property and engaged in a contract with the
WATER board for this. I was provided with accounts and it was made clear that under
45 legislative provisions I was obligated, as owner of the property, to pay. Not wanting to have a
bad credit rating I ended up paying. Only later to discover that because I was paying the same
bill as the occupier had also done the occupier simply stopped to pay the bill. This then became
more complicated. The WATER board then making clear it would charge interest against me
and place the matter in hands of a Debt Collection Agency.
50 While to keep the STATUS QUO I made further transfer of funding, actually in excess to what
the bills were, indicating it was not to be seen I accepted liability I did however request a copy of
the legislation they relied upon.
They provided by facsimile a copy and it turns out the legislation didn’t at all provide the powers
the WATER board had claimed but in fact stipulates that the WATER board is to deal with the
account holder. Neither did it provide any provision that a WATER board can fraudulently
obtain payment from the occupier who was the account holder as well as from the property
5 owner.
As such what we have is a form of TERRORISM deployed by a local WATER authority
seeking to manipulate its powers and generally getting away with it.
.
It is this kind of criminal conduct that is going on where we as a society have lost the plot and
10 forget about the so called TERRORIST walking about with weapons as we find that
TERRORISM is rife by those who are supposed to provide public service.
.
We have had incidents of a municipal council selling wrongly the property of a resident, etc, and
this should come to an end. We must return to a law and order and consider that Federal,
15 State/Territorial and so also municipal councils can only act within the provisions of “peace,
order and good government”. Meaning that no municipal council can enforce its own laws
against a citizen without a Court’s judicial order.
It is a fundamental principle of constitutions that Court provide a judicial decision and no one has
the right to take the law into their own hands, not even municipal councils.
20 .
A stark welcoming conduct was when Cr Dean Sheriff on 14 July 2008 as I understood it made
clear to fellow councillors to show some common decency to struggling ratepayers and that re
should be no issue not to seek appropriate powers from the State government to perform this
service to ratepayers. This is the kind of spirit one can find among the Framers of the
25 Constitution that it is not every one look after himself but that there is a understanding that by
looking after your fellow man you look after yourself.
Indeed Mr Howe in 1891, 1897 and again in 1898 pursued this principle to get finally the
majority of the delegates at the Constitution Convention to accept that “(xxiii) invalid and old-age
pensions ” was to be part of the federation by having it in the constitution. Unbeknown to many
30 this in fact included the poor, homeless, lunatics, paupers, etc actually all are also falling within
this provision but unless you are a constitutionalist who has extensive researched these matters it
would be unknown to a person, including constitutional law professors.
Anyone who heard Cr Dean Sheriff talking (14-7-2008) and read what Mr Howe stated would
beyond doubt hold that they appear to be molded from the same material, that is truly desiring to
35 look after their fellow mean and not just only their own personal benefits.
This was the spirit of federation but regretfully councillors these days do not appear to show this
exemplary kind of attitude.
.
Councillors are to represent the ratepayers and not to terrorize them and ignore their wellbeing.
40 .
Let say for example some street fire breaks out that people have to be evacuated. Now you might
be hard pressed to find any municipal council having a disaster plan in place that would enable
an immediate disaster plan to be available to remove the old and the infirm and the disabled from
residential places that need to be evacuated. There simply appears to be system in place to
45 address such an issue. As such what are municipal councils for if the basic needs of residence are
ignored?
.
Municipal councils are there in the first place to promote the residents health and wellbeing and
what is best in general for the community but when it comes to the crunch more then likely a
50 person needing help in an emergency will have next to no assistance.
.

People who lack the funds to live ordinary may have to cut cost for the ever increasing rates and
by this may even have to do without telephone connection and then lack any ability to be in
contact with emergency services when the need arises.
.
5 Indeed why have municipal councils if they basically try to operate as some additional level of
government while the very purpose for which they were created is slowly ignored more and
more?
.
10 Mr. CARRUTHERS.-
the several states, and a state shall not make or enforce any law abridging any privilege or
15 immunity of citizens of the Commonwealth, nor shall a state deprive any person of life,
.
Even this seems to be lacking where a municipal council is more concerned of raising rates no
20 matter what hardship there might be and apply, albeit unconstitutionally, interest, while spending
on their kind of pet-projects no matter how unconstitutionally or otherwise unlawful this might
be.
In my view in general they have lost the plot.
25
* Wasn’t there a book distributor making clear that if you didn’t provide an ABN number it was
bound to deduct 48.5% of the invoice in regard of GST because the legislation provides for this?
.
**#** Yes, and I then made clear they would not be able to get a single copy from me because
30 this legislation is unconstitutional and no one is going to force me to comply with
unconstitutional legislation as only a State court can determine these matters.
.
* And?
.
35 **#** They have indicated they will pay the full invoice price.
.
* Did they?
.
**#** For so far I have decided not to have any dealing with them because I do not like it that
40 they tried to go against my constitutional rights. So, no need to forward any invoice because I
refused to provide them with that they requested to be supplied with.
.
* But would this not be financial harmful to you having such large distributor not being provided
with books to sell?
45 .
**#** In life one has either principles or not. As an Attorney I assisted many over the decades in
their litigation but never charged for this as I do not prostitute myself in that regard. I have no
obligations therefore towards anyone to deceive the courts or otherwise act against any persons
interest, not even to that of the opponent.
50 .
* So, you view lawyers prostitute themselves?
.
**#** My view is that in general they do as they take the side of a party regardless if this
provides JUSTICE to the other party. I have no such limitations or inappropriate considerations
as one party may call me in and I might end up assisting both parties or assist the opponent party
5 instead. That is the condition I have always stipulated for me to assist anyone in the litigation,
they take it or leave it.
.
* I just was wondering. If a NOT FOR PROFIT organization made a donation to a
denomination (religious organization) in regard of religious matters would that be a problem?
10 .
**#** It would be an abuse of the NOT FOR PROFIT status as it would be a backdoor
approach to fund religious services. As such the NOT FOR PROFIT status has been abandoned
and should be stripped.
.
15 * Would you say your wife is religious?
.
**#** Yes.
.
* And does she share your views about excluding religious organization in regard of tax
20 deductions?
.
**#** Actually, she find it sickening politicians going to large church organizations prior to and
during an election trying to score their votes as she holds that religion is a persons personal
choice and should not be use in politics. Also, she views that large companies operating under
25 the shield of being a denomination and so gain tax exclusion is to undermine what religion is
about. Essentially nothing less then when reportedly Jesus overturned the tables of the money
makers. Religious belief is a mental status of a person and if you turn this in a money spinning
enterprise it is no longer for purpose of religious beliefs.
.
30 In my view the late Mother Teresa was a clear example where she showed her religious belief to
assist the poor regardless of their known religious status and not for trying to make money out of
it all.
.
* I understand there are council elections coming up and I wonder if you are going to stand for
35 council again?
.
**#** to tell you the truth I do not know because I have reservations about the ever escalating
fee for candidates to nominate both in the municipal elections, State elections and Federal
elections. In fact for this I boycotted the last State and Federal election because it is
40 unconstitutional to raise any fee as the Framers of the Constitution made clear that even the poor
should be able to stand as a candidate. Now, if you are , such as in federal elections, going to
demand some $500.00 payment for a candidate to stand for election then effectively many of the
poor would be excluded to stand as a candidate. As the Framers of the Constitution made clear
the fact that a person might be poor doesn’t mean the person is less competent. As they explained
45 a person could end up poor by no fault of his own and then still could be competent in
representing electors as his unfortunate loss of wealth should not alter his ability.
.
* But don’t candidates get if back if they get more then a certain percentage?
.
50 **#** well, you could register as a candidate and to your knowledge you will be the only
challenger to a sitting candidate and then just before closing of nominations something occurs
that inspire others to stand as candidates also. Now you lacking the huge finances to campaign
end up with, say, 2% of the votes while the rich can afford a huge advertise campaign as they
know they will get it back in the unconstitutional “payment per primary vote”. As such, the
lection process is unconstitutionally stacked for political party candidates as they know they get
at least a certain amount of votes and so can pre-spend on advertising and the poor candidate, no
5 matter his ability to provide appropriate representation is basically railroaded of having any
opportunity to be elected.
I for one would know that not s single member of any State/Territorial or Federal Parliament
would be able to comprehend what is constitutionally applicable as I do. This is not bragging but
reality, as if they did we would not have this utter legal mess we are in now. Yet, in elections I
10 have basically no hope in the world to get elected on basis of competence because I am not
willing to spend huge amount of monies on an election campaign. As such, raising the
allowances/salaries for councillors/Members of Parliament and/or Ministers of the Crown only
ensure you get more likely the rot rather then the competent to represent the electors.
Prior to federation it was an issue of “HONOUR” to represent electors but this now is more
15 about how they can abuse and misuse their position as much as possible for their own personal
gain, etc.
.
* You realize of course some people may not like your statements?
.
20 **#** In life you never can please everyone and in particularly not those who are offended by
being exposed. You find people have acted in a certain manner because others have done so
before them and they simply are like ZOMBIES and the Banyule City Council is a clear
example of this where they were voting on something like a “special charge” without anyone of
them bothering to first ascertain what was legally appropriate despite that I had given the effort
25 to set it out in my written submission and complicated by a SUPPLEMENT as well as oral
submission. And the same is happening also in State/Territorial and Federal Parliaments.
.
Re: AUSTRALIAN CAPITAL EQUITY PTY. LTD. And: ROGER DAVID BARNARD
BEALE, SECRETARY TO THE DEPARTMENT OF TRANSPORT AND
30 COMMUNICATIONS; ROBERT LINDSAY COLLINS, MINISTER OF STATE FOR
TRANSPORT AND COMMUNICATIONS and THE COMMONWEALTH OF AUSTRALIA
No. WA G14 of 1993 FED No. 141 Legislation (1993) 114 ALR 50 (1993) 41 FCR 242 (1993)
30 ALD 849 (extract)
His Honour concluded that in the case before him the publication of the
35 instrument was essential to the valid exercise of the power and that no
distinction could be drawn between the publication of the notice and the
exercise of the power.
.
Therefore, where Banyule City Council published incorrectly details of the Rosanna Shopping
40 Village in regard of the “special charge” then for this also it was not a valid publication as
required un the provisions of the Local Government Act 1989.
This is the kind of representation we end up with where they seem to be in the position because
they have a cozy income from it rather then wanting to do the right thing to those they represent.
I challenge any lawyer (being a so called constitutional expert or not) they have ever pursued as
45 many constitutional issues as I have, even so I have done it without being paid for it! Basically
any donkey can be elected to a council/parliament and his only disqualification might be to be an
animal rather then his intelligent as a donkey by not saying anything but just barking would
provide the same as the infamous Australian Democrats advertisement during the 2001 Federal
election of having barking dogs. At least a donkey would not vote for nonsense as it doesn’t now
50 how to vote.
.

The same actually is with lawyers and those so called law professors. One judge after having
been appointed to the High Court of Australia refused to hand down a decision as he made
known he didn’t know the constitutional issues involved. This is the kind of competence the
judge portrayed that being appointed to the High Court of Australia doesn’t mean he
5 comprehended what the Constitution stands for.
.
What is so terrible in regard of this all is that we had the Framers of the Constitution working
their guts out over many years to provide us with a democratic system and we had many a soldier
losing his life in seeking to protect the interest of this Australian democratic system and yet it all
10 is jeopardized by people who are more interested in what they can get out of it for themselves
then to be truly proper representatives for the people they represent.
That is why we need an OFFICE OF THE GUARDIAN, a constitutional council, that Advises
the Government, the People, the parliament and the courts as to what are the constitutional
powers and limitations so finally we can even have the ZOMBIES representing us becoming
15 aware what is constitutionally appropriate
.
Parliament never should have an issue about breast feeding babies in it as that underlines how
low we have sunk. It is after all the parliament to legislate for the good of the general community
within constitutional powers and not that elected representatives are side tracked because some
20 woman may desire to flash her breast in the Parliament to feed some baby. Anyone who fails to
understand this simply doesn’t belong in the Parliament. People at times can loose a court case
pending where a comma may be stated in the legislation that is considered by the court and as
such it is essential that those who are in the Parliament have ample and sufficient concentration
about legislation and not be side tracked by a crying baby, etc.
25 .
We do not see police women standing on a corner directing traffic while breast feeding a baby or
holding a baby because simply this got nothing to do with equality but with the issue of that you
must be able to perform a function for which you are being employed or otherwise being paid
for.
30 .
I recall some 20 years ago while sitting at a lake talking to a woman holding a baby she suddenly
without warning exposed her breast and started to feed the baby. It didn’t worry me as I simply
continued to talk to her as if nothing was happening. If the mother held the baby needed to be fed
then so be it. In the circumstances I held there was no issue with this, however I do not accept
35 that the parliament is the place to do the same because the purpose of the Parliament is to
legislate as to very serious issues and every letter and comma is of vital importance and can
make the difference to a person being defeated in court or not. Hence, any detraction that is not
relevant to the proceedings itself must be avoided, so the feeding of babies in the House.
.
40 * I think we got a bit of track about the NOT FOR PROFIT issue, don’t you think?
.
**#** Perhaps to some extend but then if we have parliamentarians voting on Bills being side
tracked by non parliamentarian matters then no wonder we are ending up in this huge legal mess.
Perhaps the time comes we are going to have female councillors flashing their boobs in the
45 council chamber to feed some baby? Are we going to have female lawyers of the ATO standing
in court while breast feeding their babies? Perhaps the female judge dealing with cases while
feeding a baby?
.
No one really may understand let alone what is appropriate with this whole NOT FOR PORFIT
50 registration because they are all too busy considering how to accommodate for breastfeeding
mothers instead of addressing themselves to what is constitutionally or otherwise legally
appropriate.
.
* Now that you attended to the council meeting of Banyule City Council after years of not
having done so are you eager to visit again as I understood you used to go fortnightly some
decades ago?
5 .
**#** That was decades ago and this involved another city council where prior to council
meeting there was an opportunity to get together and have coffee, cake and sandwiches for
consumption. I was then secretary of the local progress association and had great respect for the
kind of councilor’s we then had!
10 .
* And now?
.
**#** See my previous answer!
.
15 END QUOTE Chapter NOT FOR PROFIT-MUNICIPAL COUNCILS-ETC
While this overall document may be deemed extensive it is not even addressing by a long
shot all issues.
20 Because there is so misconception about how the constitution really applies I have taken the time
to try to point out certain issues to some, albeit limited, extend so that it might be come clear that
any taxation reform must be in consideration of the above as to avoid having yet again an all out
so called tax reform only to start again all over again because no one really bothered to consider
the true meaning and application of the constitution.
25 .
Here we have so much about religion, taxation and other matters and when some citizen like Mr
Francis James Colosimo seeks to assist others in what he views is to do God’s work then just
check out in the quoted correspondence below what is done onto him!
.
30 QUOTE 18-3-2010 CORRESPONDENCE
WITHOUT PREJUDICE
John Griffin 18-3-2010
Office of the Executive Director, Courts
Level 26
35 121 Exhibition Street,
Melbourne Victoria 3000
GPO Box 4356
Melbourne Victoria 3001
Telephone 8684 0805
40 Facsimile 8684 0809 Your ref; CD/10/101256
.
. AND TO WHOM IT MAY CONCERN
.
16-3-2010
45 .
Cc; * Mr & Mrs Colosimo, 72 Shuter Avenue, Greendale, Vic 3341 francesco.c@live.com.au
* Deputy Registrar Ashe Whitaker VCAT – Guardian List) vcat@vcat.vic.gov.au
* Mr Brendan Hoysted brendan.hoysted@justice.vic.gov.au
* Her Honour Harbison J /o david.harbison@countycourt.vic.gov.au
50 * Victorian Government Solicitors Office, 1072628 C/o Monika Pekevska Stephen.Lee@vgso.vic.gov.au
* Senior Member Ms Preuss vcat@vcat.vic.gov.au
.
Ref; G54449/00 (including V2/2007 & P194/2007 and other related proceedings) Mr
Francis James Colosimo Re John Griffin-foreclosure- etc.
.
Sir,
I refer to your document:
QUOTE
5 Copy of (CD-10-101256) -- EDC Email to Mr Andrew Moyle in Response to VCAT
Complaint of a General Nature.PDF
END QUOTE
.
I am representing (within the meaning of s.62 of the vcaata1998428) Mr Francis James
10 Colosimo. Within s.143 of the vcaata I have the rights of a solicitor in representing Mr
Francis James Colosimo.
.
Below I have set out some matters albeit in condensed format and not at all setting out all
relevant issues, as to give you an indication this is not at all an issue so to say before the courts
15 but one that is a gross abuse and misuse of the legal processes and must be stopped forthwith.
.
It is because I have such a high regard for the constitution, as after all I am a
CONSTITUTIONALIST also, I pursue matter vigorously so we can assure that citizens can be
provided with the constitutional and other legal benefits they are entitled upon but regretfully far
20 to often are wrongly denied.
..
Let me briefly set out the legal issues.
.
Mr Francis James Colosimo is a devout religious person and has been in the process assisting
25 people with distributing food, etc. for purpose of storage he was able to obtain a “shed” that had
been registered previously with Footscray TAFE College as a “shed”
.
Mr Francis James Colosimo commenced to erect this shed for purpose of storage of items, in
regard of his religious conduct to assist others, but Moorabool Shire Council then commenced a
30 persistent harassment upon him by issuing all kinds of notices of which not a single one was
actually issued according to law. I will not delve into precise details to avoid this correspondence
becoming too long but further details can be obtained from me.
In the process it issued a Penalty Infringement Notice in accordance with the Infringement Act
2006 only can be enforced before a Court. VCAT (Victorian Civil and Administrative Tribunal)
35 is not a court and not therefore permitted to deal with enforcement of such notice, which in any
event was defectively issued.
.
The last notice issued by Moorabool Shire Council was dated both 7 and 17 January 2007 which
cancelled a previous notice and such cancellation can only be permitted provided the “shed” was
40 in compliance with the Building Act and the Building Regulations and as such that should for
all purposes and intend to have been the end of the matter. However it appears to me that Coral
Lynnette Young for the Moorabool Shire Council didn’t care less about the 7 and 17 January
2007 notice and simply went ahead to institute on 22 January 2007 proceedings in VCAT, even
so again by the terms of the Infringement Act 2006 VCAT has no jurisdiction.
45 .
Mr Francis James Colosimo, appearing unrepresented, objected to the jurisdiction of VCAT and
also made known he relied upon his constitutional rights. (The Commonwealth of Australia
Constitution Act 1900 (UK)
.
50 Any legal practitioner ought to be well aware that when an OBJECTION TO JURISDICTION
has been made then the judicial officer cannot proceed with hearing the matter unless he/she first
dispose of the OBJECTION TO JURISDICTION by formal reason of judgment and orders.

This never eventuated before VCAT despite 15 hearings so far! Hence, none of the hearings and
any orders were having any LEGAL FORCE.
.
Worse is that during an 28 May 2007 EX PARTE Application VCAT member martin Philips
5 then changed it that Mr Francis James Colosimo had build a “second dwelling” even so none of
the notices issued by Moorabool Shire Council related to the erection of a “second dwelling” as
such VCAT was seemingly enforcing a non-existing charge. The State of Victoria via the
Parliament provided various legislative provisions which clearly differentiate between an
“outbuilding” (shed) and a “dwelling” and indeed for over one hundred years the High Court of
10 Australia also differentiated between an “outbuilding” (including a “shed”) and a “dwelling”.
.
On 30 may 2007 VCAT member Mr Martin issued orders for the “second dwelling” to be
demolished, albeit Moorabool Shire Council seemed to have concealed from him that in fact the
“shed” was by 7 and 17 January 2007 notice held to be in compliance with legal requirements.
15 .
Moorabool Shire Council then through its solicitors Maddock Lawyers pursued contempt
proceedings and not less then 6 CONTEMPT hearings were conducted before Her Honour
Harbison J as member for VCAT.
.
20 On 12 June 2008 Her Honour Harbison J requested the Office of the Public Advocate to
investigate if Mr Francis James Colosimo conduct was “WILLFUL”. As far as I am aware off
by as to date the office of the Public Advocate never bothered to do so but did nevertheless
institute proceedings against Mr Francis James Colosimo in the guardianship List for orders of
Administration which on 29 October 2008 were issued.
25 .
An application for review was filed .
.
In December 2008 Mr Francis James Colosimo finally was able to get in contact with me and
requested me to assist him in the VCAT litigation as he understood that I am a
30 CONSTITUTIONALIST. This I did subsequently.
.
On 27 January 2009 I appeared before VCAT Senior member ms Preuss and having already
submitted extensive written material prior to the review hearing I submitted that there was an
OBJECTION TO JURISDICTION and also objected to Maddocks Lawyers for Moorabool
35 Shire Council to be present as they had no legal standing, VCAT Senior Member Ms Preuss
eventually ordered them to leave. I also submitted that the 29 October 2008 orders be set aside.
This VCAT Senior Member Ms Preuss refused to do albeit she ordered that State Trustees
Limited could not act on those orders other then what she stipulated.
I also submitted to be provided with the files, etc, and VCAT Senior Member Ms Preuss made
40 known that the files would be provided to me, however up to this day this was refused and this
despite numerous reminders. In fact I was not even provided by VCAT a copy of the 27 January
2009 orders, which I discovered months later were incorrectly issued but a request to correct
them under the slip rule (s.119 of vcaata) was refused.
.
45 It was clear to me that VCAT Senior Member Ms Preuss lacked any proper understanding as to
The RULE OF LAW, NATURAL JUSTICE and DUE PROCESS OF LAW as she blatantly
disregarded to formally deal with the OBJECTION TO JURISDICTION.
.
More over she neither attended to the core issue for which Her Honour Harbison J requested the
50 Office of the Public Advocate to investigate and that is if Mr Francis James Colosimo acted
WILLFUL in contempt.
.
As I understand it to be ordinary a review within the Guardianship List requires a Senior Member
to consider all matter DE NOVO. Hence VCAT Senior Member Ms Preuss was therefore to
address first of all if Mr Francis James Colosimo acted WILLFULLY in CONTEMPT. This she
never did to my knowledge despite hearing on 27-1-2009, 2-9-2009, 22-10-2009, 27-1-2010 and
5 16-2-2010.
.
On 16 March 20009 I appeared before Her Honour Harbison J and submitted to Her Honour
Harbison J that the CONTEMPT proceedings had no legal validity and basically the lawyers had
used Her Honour Harbison J as a fool., etc. I specifically stated that Mr Francis James Colosimo
10 didn’t even know if he was facing a criminal or a civil case. Her Honour Harbison J in the end
accepted my submission to PERMANENT STAY the CONTEMPT proceedings. By then the
office of the Public Advocate had still not commenced any investigation as requested on 12 June
2008 if Mr Francis James Colosimo acted WILLFULLY in CONTEMPT.
Her Honour ordered, upon my submission, that I be provided with copies of all transcripts of the
15 6 CONTEMPT hearings and also a copy of the 16 march 2009 transcript be placed on the
guardianship List case.
Subsequently to receiving the TRANSCRIPTS I discovered that in fact Her Honour Harbison J
never had actually formally charged Mr Francis James Colosimo with CONTEMPT, and yet
correspondence of Victoria Legal Aid to Mr Francis James Colosimo advised him to purge his
20 CONTEMPT.
.
As I understand it a woman is either pregnant or not but there is no such thing as a woman being
half pregnant.
.
25 There fore either Mr Francis James Colosimo was charged with CONTEMPT or not. As he was
never formally charged with CONTEMPT there never could never be any case to answer either.
If however the office of the Public Advocate had investigate as per 12 June 2008 request of Her
Honour Harbison J if Mr Francis James Colosimo had acted WILLFULLY in CONTEMPT,
then Mr Brendan Hoysted, duty officer of the Office of the Public Advocate would have had to
30 report back that as Her Honour Harbison J had omitted to formally charge Mr Francis James
Colosimo then there was nothing to investigate.
.
However what Brendan Hoysted, duty officer of the Office of the Public Advocate did was to
pursue nevertheless an application for Administration on 29 October 2008 and obtained orders
35 but limited to matters relating to Moorabool Shire Council only.
.
Again, a woman is either pregnant or not but she cannot be half-pregnant.
.
What now was held by VCAT Member Graves that Mr Francis James Colosimo was deemed
40 mentally able to manage his own affairs but those relating to Moorabool Shire Council.
.
The supreme Court of Victoria, as I understand it, in the past set aside orders for suspended
sentence against a (non related) party as the supreme Court of Victoria held that the sentencing
judge could only invoke the powers provided by the vcaaata and not otherwise because no right
45 of appeal existed in regard of any suspended sentence.
.
Yet, we have that nevertheless the guardianship List is misused to force ahead against mr
Francis James Colosimo cost, etc, derived for the purported CONTEMPT proceedings even so
this cannot be achieved. This is a gross misuse of CONTEMPT proceedings.
50 .
While VCAT in the guardianship List ordinary may have legislative powers to deal with
administration matters in this case however this was not an ordinary application but one derived
from the request of Her Honour Harbison J for the Office of the Public Advocate to investigate if
Mr Francis James Colosimo acted WILLFULLY in CONTEMPT. At no time did VCAT
member Graves on 29 October 2008 or VCAT Senior member Ms Preuss ever attend to this
issue, and as such all and any orders issued were for this also outside the jurisdiction of VCAT
5 guardianship List. If jurisdiction had existed, something that was never invoked, then the first
issue for the Guardianship List hearings should have been to investigate the issue of Mr Francis
James Colosimo acted WILLFULLY in CONTEMPT. It is not relevant if the Office of the
Public Advocate or for that matter “any person” can make an application for
guardianship/administration because this related specifically to a request by Her Honour
10 Harbison J regarding purported CONTEMPT proceedings and then the guardianship List is very
limited to the powers it can exercise. It cannot be used to achieved something not within the
ordinary CONTEMPT powers for a judge as a sentence.
.
In my view VCAT Senior Member ms Preuss lacks any competence in the Mr Francis james
15 colosimo case to appropriately deal with the relevant legal issues and has in my view acted
maliciously against mr Francis James colosimo to cause uncalled EMOTIONAL, MENTAL and
FINANCIAL har,m upon mr Francis James colosimo.
.
As I understand it in law “malicious” is when a judicial officer not just act;’s without jurisdiction
20 but acts in a persistend manner to defy the RULE OF LAW and/or DUE PROCESS OF LAW
where a FAIR MINDED PERSON can take the view that the persistent conduct was uncalled for.
.
Again, Mr Francis James colosimo on 2 September 2009 personally made known to VCAT
Senior member Ms Preuss that the protracted litigation prevented him to work normal hours to
25 earn an income to pay his bills.
.
In my view any competent judicial officer should have, so to say, thrown out of the window the
application of the office of the Public Advocate but somehow VCAT Senior Member Ms Preuss
seemed to me to disregard even NATURAL JUSTICE., and went so to say on a counter attack
30 on 2 September 2009 as I understood it to be to accuse Mr Francis James Colosimo of being in
breach of legal provisions. Yet, to my knowledge there is no reliable evidence, and this I also
submitted to Her Honour Harbison J on 16 March 2009, to prove Mr Francis James Colosimo
acted unlawfully erecting his “shed”.
As a matter of fact during these proceedings Moorabool Shire Council solicitors Maddocks
35 Lawyers filed a copy of the Authority;
Cotsonis v Darebin CC [2005] VCAT 232 (15 February 2005)
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINISTRATIVE DIVISION
QUOTE
40 15 The definition of dwelling in the Darebin Planning Scheme is as follows:
Dwelling A building used as a selfcontained residence which must include:
a) a kitchen sink;
b) food preparation facilities;
c) a bath or shower; and
45 d) a closet pan and wash basin.
It includes out-buildings and works normal to a dwelling.
END QUOTE
.
As I submitted to Her Honour Harbison J the State parliament specifically legislated as to the
50 difference between a “dwelling” and an “outbuilding” (shed) and Moorabool Shire Council
solicitors Maddocks Lawyers filing a copy of the Authority Cotsonis v Darebin CC [2005]
VCAT 232 (15 February 2005) by proved there was no “second dwelling” as the “shed” did not
have the items required to be considered a “dwelling”.
As such, so to say Moorabool Shire Council solicitors Maddocks Lawyers filing a copy of the
Authority Cotsonis v Darebin CC [2005] VCAT backfired upon them to precisely prove the
5 contrary to what they were on about. Obviously there was a lot more wrong with the case but it
already shows that this was an utter protracted VEXATIOUS litigation totally uncalled for.
.
However, VCAT had all along published details on its website and Moorabool shire council also
has cooperated as to have an article published in the MELTON MOORABOOL LEADER
10 regarding the case.
.
As Author of books in the INSPECTOR-RIKATI® series on certain constitutional and other
legal issues and representing Mr Francis James colosimo and mr Francis James colosimo
requesting me to publish details I decided to do so but made sure to request him to place in
15 writing his consent that I could publish, this he did.
.
Ordinary vcaata prohibits the publication of details that could identify a person, albeit the
publication of details that doesn’t identify a person is permissible. We have however that
Moorabool shire Council and VCAT both were involved in presenting a certain version to the
20 general public and as such actually were slandering mr Francis James colosimo as both failed to
set out the true legal circumstances.
.
I therefore registered a title for a book;
.
25 INSPECTOR-RIKATI® on VCAT as a STAR CHAMBER & KANGAROO COURT-No1
A Book on DVD about the injustice upon Mr Francis James Colosimo
ISBN 978-0-9803712-7-7
.
As a registered publisher I am entitled to publish books about legal matters as any publisher does
30 in regard of LAW REPORTS, etc.
.
However, it seems so to say it was becoming a bit hot under the collar for VCAT Senior Member
Ms Preuss that the TRUTH was being published and Victorian government solicitors Office
Stephen Lee in his 5 February 2010 correspondence demanded that I remove the publications of
35 http://www.scribd.com/InspectorRikati and other publications under my control.
.
I responded that my publications were lawfully published.
.
On 16 February 2010 VCAT Senior member Ms Preuss then made clear she was not proceeding
40 with the case itself but was going to deal with me for (as far as I reasonable can recall);
 publishing material on the Internet
 making derogative comments upon her
 my competence to represent Mr Francis James Colosimo
.
45 As to the publication, I explained to VCAT Senior Member Ms Preuss that she misconceived the
legislation as it didn’t prohibit publication but publication that could identify a party. As both
Moorabool Shire Council in 2006 and VCAT since 2007 had published the identity of Mr
Francis James Colosimo then I could not do anything that already was done by Moorabool Shire
council and VCAT themselves. Indeed, as I pointed out VCAT was publishing the identities of
50 persons in the DAILY LAW LIST and as such before any hearings were held the identities of
persons was already made known to the world on VCAT’s own website.
.
VCAT Senior Member Ms Preuss then made known to go to the next issue which was about my
statements. I again pointed out that as she never had actually invoked jurisdiction then whatever
criticism or views I expressed were not those regarding a judicial officer because she never was
acting as a judicial officer by having failed from onset to invoke jurisdiction.
5 .
There is no such thing as a judicial officer to invoke jurisdiction merely by assuming there is
jurisdiction as a judicial officer must invoke jurisdiction when this is challenged by formally
dismissing the OBJECTION TO JURISDICTION and failing to do so she doesn’t act with
judicial authority.
10 .
VCAT Senior Member Ms Preuss then went on to the issue as to my competence to represent Mr
Francis James Colosimo and Mr Francis James Colosimo asked her, so to say, lay off me, but
VCAT Senior Member Ms Preuss disregarded this despite that Mr Francis James Colosimo
became very much frustrated by this to the extend that he finally became so unwell that the
15 hearing had to be temporary adjourned. I was left with an ill Mr Francis James Colosimo and not
even the clerk was left behind to man the telephone in case of an ambulance needed to be called.
State Trustees Limited lawyers refused any kind of assistance while I approached them outside
the hearing room and Mr Brendan Hoysted duty officer of the Office of the Public Advocate also
had left leaving me alone in the hearing room with the ill Mr Francis James Colosimo and
20 lacking any assistance being provided I was left no alternative but to leave the ill Mr Francis
James Colosimo alo0ne in the hearing room while searching for medical assistance, which I
subsequently obtained as the front desk and subsequently an ambulance was called and Mr
Francis James Colosimo was taken to hospital . After this VCAT Senior Member Ms Preuss
returned and adjourned the matter. It must be stated that on 20 March 2009 Mr Francis James
25 Colosimo then also attended to hospital subsequent to the 16 March 2009 hearing before Her
Honour Harbison J where then despite my request to adjourn the proceedings I was given the
understanding by Mr David Harbison J that even if Mr Francis James Colosimo was in hospital
the proceedings would go ahead, this even so he was made well aware that VCAT Senior
Member Ms Preuss in her 27 January 2009 orders had referred to the 16 March 2009 hearing to
30 be adjourned. As such twice Mr Francis James Colosimo ended up attending to hospital due to
the VCAT total disregard about his health and wellbeing. To me this is utter callous conduct in
particular where Her Honour Harbison J never had formally charged Mr Francis James Colosimo
and neither had the Office of the Public Advocate complained with the 12 June 2008 request to
investigate if Mr Francis James Colosimo acted WILLFULLY in CONTEMPT.
35 .
It should be understood that Moorabool Shire Council and VCAT both having been
involved in publications, albeit of course their own so to say twisted version of events, this
has also if not directly then indirectly resulted to difficulties for Mr Francis James
Colosimo to obtain fulltime employment and in addition to this the conduct of VCAT
40 Senior Member Ms Preuss to persist with protracted VEXATIOUS hearings without ever
invoking jurisdiction has resulted that Mr Francis James Colosimo has been unable to earn
sufficient income to maintain payments, such as his mortgage, and this was made well
known to VCAT Senior Member Ms Preuss on 22 October 2009. Yet, despite this she did
absolutely nothing to alleviate the problems with the protracted VEXATIOUS litigation
45 but rather seemed to mount an attack upon my person as to compound to the problems.
.
Proceedings are VEXATIOUS when there is no legal merit in the proceedings.
.
It is obvious that VCAT Senior Member Ms Preuss failed on 27 January 2009 (as did others
50 before her) to invoke jurisdiction.
.

VCAT Senior Member Ms Preuss, even so in my view no legitimate evidence existed for this
ordered on 27 January 2009 that Mr Francis James Colosimo couldn’t appoint an Enduring
Power of Attorney, and maintained this, and indeed refused to set aside these orders, even so
since she herself admitted during hearings that the medical evidence indicates Mr Francis James
5 Colosimo is competent to appoint a Enduring Power of Attorney. As such, by maintaining, and
without invoking jurisdiction, the orders she prevented any Enduring power of Attorney to assist
Mr Francis James Colosimo in dealing with certain financial affairs.
.
Further, despite the review DE NOVO VCAT Senior Member Ms Preuss at no time requested
10 Mr Brendan Hoysted, duty officer of the Office of the Public Advocate to provide his
investigation report about if Mr Francis James Colosimo acted WILLFULLY in CONTEMPT,
as per request of Her Honour Harbison J of 12 June 2008. And as such never bothered to deal
with the basic. Indeed, despite the review by 27 January 2009 when the review commenced to
my knowledge Mr Brendan Hoysted, duty officer of the Office of the Public Advocate had not
15 provided any further material as to the review application and it seems to me that VCAT Senior
Member Ms Preuss was and continued to do so to disregard DUE PROCESS OF LAW and
simply isn’t concerned about the rights of Mr Francis James Colosimo and by this his inability be
employed to earn sufficient income to pay his bills.
.
20 Hence, as I understand it the bank now pursuing foreclosure of the property is in my view
directly the result of the as I view it blatant disregard by VCAT and so also in particular VCAT
Senior Member Ms Preuss to conduct matters by DUE PROCESS OF LAW, and hence Mr
Francis James Colosimo can’t be blamed for lacking sufficient funds to pay his bills.
Regardless if VCAT Senior Member Ms Preuss never invoked jurisdiction no one can deny that
25 State Trustees Limited purportedly appointed by VCAT on 29 October 2008 but subject to the 27
January 2009 orders, are going on as to contemplate action against the wishes and intentions of
Mr Francis James Colosimo, including foreshadowing the sale of the property and acting time
and time again directly in violation of the terms of the orders.
.
30 As Mr Francis James Colosimo as I view it is directly the result of the conduct of VCAT then I
view it would be inappropriate to hold it against Mr Francis James Colosimo that he cannot
service his bills. After all VCAT by its conduct obstructed him doing so.
.
The matters are more serious because VCAT Senior Member Ms Preuss is dealing with a
35 Guardianship List where one would at least expect some compassion towards a person subject to
its litigation but in my view there was nothing but cold blooded obstruction.
.
It also must be noted that as I recall it, when on 27 January 2010 I submitted to VCAT Senior
Member Ms Preuss that the office of the Public Advocate had failed to present any evidence as
40 none was filed and served, to support the application for administration then VCAT Senior
Member Ms Preuss declared that she had taken over the application. As such, VCAT Senior
Member Ms Preuss was sitting in judgment what was now her own application and refusing to
provide any evidence to Mr Francis James Colosimo as to what she relied upon as to the
application for administration. To me this is an extra ordinary absurd manner to deal with any
45 case. Indeed, as a CONSTITUTIONALIST I am well aware that the Framers of the
Constitution made clear that civil rights was not in the hands of any government but prosecuting
criminals is. As such, where VCAT is an organ of the State government it cannot deal with the
civil rights of Mr Francis James Colosimo and the matter should have been dealt with before a
Chapter III court.
50 .
In my view there must be an IMPARTIAL JUDICIAL INQUIRY as to the conduct of VCAT
in regard of matters relating to Mr Francis James Colosimo also as it appears to me that this is a
modus operandi with VCAT to disregard DUE PROCESS OF LAW, NATURAL JUSTICE,
and the RULE OF LAW.
No matter how much the litigation may be without jurisdiction it cannot be disregarded that
VCAT nevertheless persisted with State Trustees Limited (another State organ) to make
5 arrangements to have a lawful erected shed to be demolished, etc. As such Mr Francis James
Colosimo could present, through me or otherwise, his constitutional and other legal rights but it
was very clear to me that VCAT Senior Member Ms Preuss couldn’t give a darn about this but is
only interested to so to say do her own thing regardless what is legally permissible. No one can
then blame Mr Francis James Colosimo for falling ill and being unable to service his bills as this
10 I view is the result of the deliberate conduct by VCAT and others.
.
This is not a case where Mr Francis James Colosimo acted deliberately as some lawbreaker but
where so many lawyers were involved (about 20 if one include judicial officers)) who all
persisted in perverting the cou8rse of JUSTICE to every extend as to get their way regardless of
15 knowing or could have known from the material I provided that Mr Francis James Colosimo was
innocent of any wrongdoing having erected the shed.
.
This is a case where Mr Francis James Colosimo was never formally charged with any offence,
albeit fancy a charge that he is charged with CONTEMPT for lawfully erecting a shed! Yet, we
20 find that the very other participants in this mess/mesh regardless of what I view a conspiracy to
pervert the course of JUSTICE, none of them so far have been held legally accountable.
.
While VCAT Senior Member Ms Preuss on 16 February 2010 made known that I complain
about everyone, I view that as the representative of Mr Francis James Colosimo I should not
25 shiver or be afraid to expose the TRUTH!
.
As I submitted to Her Honour Harbison J on 16 March 2009 if Mr Francis James Colosimo was
guilty of CONTEMPT then he deserved to be punished, but likewise so should anyone else who
acted in breach of law.
30 .
In my view, this entire concocted litigation is VEXATIOUS from onset and considering that
three solicitors of Maddocks Lawyers were involved to draft the 22 January 2007 application
who after all are OFFICERS OF THE COURT being members of the Bar of the SUPREME
COURT OF VICTORIA, then I view they and other lawyers likewise are placing the
35 SUPREME COURT OF VICTORIA in disrepute.
.
In my view no SUPREME COURT can allow members of the Bar to act in defiance of their
oath given when being admitted to the Bar of the SUPREME COURT!
Neither do I view the Attorney-General of Victoria or any of his staff can disregard this conduct
40 and must ensure that an IMPARTIAL JUDICIAL INQUIRY is conducted in these matters.
As the representative of Mr Francis James Colosimo I have no fear for my conduct to be
investigated as much as that of others because I have all along looked forwards to an
IMPARTIAL JUDICIAL INQUIRY to be held.
.
45 In my view while such IMPARTIAL JUDICIAL INQUIRY is conducted the bank should hold
of and if indeed an IMPARTIAL JUDICIAL INQUIRY does conclude that VCAT and others
perverted the course of JUSTICE and/or otherwise obstructed the course of JUSTICE then
those responsible are held financially accountable for these and other financial cost.
.
50 As I view it, when a judicial officer acts without jurisdiction and continue to do so
“maliciously”, such as persistent, then this judicial officer technically acted in private capacity
and can be personally held liable for any cost that directly/indirectly resulted of such “malicious”
conduct. Those who occupy judicial positions always must be aware that the courts/tribunals are
not a cloistered virtue (LORD ATKIN in AMBARD v ATTORNEY-GENERAL for TRINIDAD
and TABAGO (1936) A.C. 332, at 335) and where conduct of any person otherwise occupying a
judicial position is as such to be unbecoming to a judicial office holder then so shall the verdict
5 be upon that person. As only by this can the court earn respect of citizens. As where it fails to do
so that citizens rightful can question the integrity of the legal processes and then it may
regretfully lead to citizens taking the law into their own hands because the legal processes are no
more of the standard to reflect a democratic society.
.
10 As the representative of Mr Francis James Colosimo I claim no immunity for Mr Francis James
Colosimo if he had unlawfully erected the shed but likewise neither should anyone else claim
immunity of their legal wrongdoings.
.
This is not some error of judgment by a person but a compounding protracted conduct involving
15 numerous lawyers and while the Victorian Government Solicitors Office by way of Stephen Lee
and VCAT Senior Member Ms Preuss may resent that I publish the TRUTH on the Internet to
counteract the deceptive versions previously published with assistance of Moorabool Shire
Council and also by VCAT this however cannot be regarded as being unlawful.
.
20 As I have submitted previously to VCAT Senior Member Ms Preuss she should have disqualified
herself for being bias, etc, but somehow it appears to me common sense isn’t within her capacity
to be applied. Hence, in the process Mr Francis James Colosimo continues to suffer
EMOTIONALLY, MENTALLY and FINANCIALLY as while Ms Preuss has not a shred of
evidence that Mr Francis James Colosimo acted unlawfully erecting his “shed” she nevertheless
25 has not withdrawn her claim she made on 2 September 2009 and as such persist in what I
consider to be KANGAROO COURT and STAR CHAMBER COURT kind of litigation to
the detriment of Mr Francis James Colosimo.
.
While I personally do not practice any religious faith nevertheless I deplore the kind of conduct
30 as I perceived it to be for both Moorabool Shire Council as wells as VCAT to basically seek to
ridicule Mr Francis James Colosimo for seeking to rely upon his faith. Surely VCAT having
imprisoned persons in the past about their criticism on religious conduct of others should then be
the last to pursue this kind of deplorable conduct. Mr Francis James Colosimo is entitled to be
shown the respect to his religious views and not be ridiculed about it, in particular where the
35 “shed” was for the work Mr Francis James Colosimo views is the work of “God” for him to
assist others who are in need. It is irrelevant if others may or may not accept his reasoning about
“God” as what is relevant is that Mr Francis James Colosimo’s conduct was not and neither
intended to be in breach of any laws and to the contrary for public purposes to assist those in
need.
40 .
In my view, VCAT should forthwith set aside all and any orders it issued over the years of the
protracted VEXATIOUS litigations because not a single one was issued having invoked
jurisdiction. In my view the bank should hold of pending the IMPARTIAL JUDICIAL
INQUIRY being completed as after all it could then easily gets its monies from those
45 responsible for this elaborate mess/mesh.
.
As was made known to VCAT Senior Member Ms Preuss Mr Francis James Colosimo borrowed
certain monies from the bank which was used to assist a couple to purchase a home, however
they failed to repay the monies and have allegedly separated and as such as I submitted on 22
50 October 20009 Mr Francis James Colosimo, or so the bank could legitimately put a caveat upon
that property to retrieve any overdue outstanding monies and further cost. With State Trustees
Limited as administrators it made no attempt and neither seemed to have any intention to seek to
recover this overdue monies and this underlines that State Trustees Limited were not interested to
act in the interest of Mr Francis James Colosimo. As VCAT Senior Member Ms Preuss on 27
January 2009 prohibited Mr Francis James Colosimo to appoint an Enduring Power of Attorney
by this she also prevented him any opportunity to recover or attempt to recover those monies and
5 Mr Francis James Colosimo himself was unaware he can seek to recover monies as such. It
should therefore be obvious that the conduct of VCAT Senior member Ms Preuss, State Trustees
Limited and the office of the Public Advocate isn’t to assist Mr Francis James Colosimo at all
but rather they are combined obstructing Mr Francis James Colosimo to obtain JUSTICE and so
aided by Moorabool Shire Council and its solicitors Maddocks Lawyers.
10 .
It should be clear that if the bank were to put a caveat on the property that used the monies Mr
Francis James Colosimo lend for the purchase of that property and if needed were to sell it to
retrieve the monies then Mr Francis James Colosimo financial position would be considerably
different and his own property would be save from being sold. While it may be commendable
15 that Mr Francis James Colosimo in his desire to act in “God’s” work to assist others it never
should be that he is to loose his own property because others he unselfishly assisted are taking
advantage of him.
.
It is also regrettable that VCAT Senior Member Ms Preuss doesn’t recognise that State Trustees
20 Limited didn’t conduct themselves in the best interest of Mr Francis James Colosimo and neither
intended to do so not even sorting out the issue of permit (there was none needed for a lawfully
erected shed!) as ordered by 29 October 2008 Graves administration orders and it all ended up
more and more in a shambles and Mr Francis James Colosimo still holds on to his faith in “God”
that eventually it all will be appropriately resolved.
25 .
As his representative I am not seeking anyone to convert to any religious faith, just that they act
appropriately to ensure that what this democratic society is about is shown to be right and that is
NATURAL JUSTICE, the RULE OF LAW and DUE PROCESS OF LAW. If that is
provided then I have no doubt Mr Francis James Colosimo and his family finally can enjoy the
30 piece and tranquillity they all along were entitled upon to have.
.
It should be made clear at no time during proceedings did I ever submit to disregard any legal
provisions to the contrary I pursue a proper application of legal provisions! Again, as VCAT is
not a court of law it cannot invoke federal jurisdiction and hence neither can deal with (federal)
35 constitutional issues. Regretfully this is something VCAT doesn’t seem to comprehend, and
correspondences to the President of VCAT and the Presidents Review resulted to nothing!
.
.
MAY JUSTICE ALWAYS PREVAIL®
40 Awaiting your response, G. H. Schorel-Hlavka
.
I will not reproduce the entire correspondence to Mr John Howard of 11-7-2004 but safe to say
that I have pursued time and time again the fair and proper application of funding in regard of
45 religious education facilities.
.
QUOTE Chapter 677 Education FUNDING- Private schools- Religion
.
Chapter 677 Education FUNDING- Private schools- Religion
50 .

* Gerrit, I am really confused as to if a religious school is a private school and if it then can be
funded or not! What is your opinion?
.
**#** INSPECTOR-RIKATI®, in this Chapter I am going to set out why funding of students
5 regardless of attending to a public, religious or private school should be equal when it comes to
certain items, such as those listed in Schedule 2 of the Education Act 1958 (Victoria). The set
out below attends to both State and Federal funding, but to get some understanding about matters
I will be quoting legislative provisions of both State, commonwealth and other jurisdictions , etc.
.
10 See also the enclosed document;
QUOTE
WITHOUT PREJUDICE
Mr John Howard 11-7-2004
Parliament House Canberra,
15 Fax 02 6273 4100
Ph; 02 6277 7700 Ref; Religion, education, riparian rights, war, rights, etc.
END QUOTE
.
Also consider;
20 HANSARD 10-3-1891 CONSTITUTION CONVENTION DEBATES
QUOTE Mr. DIBBS:
Whenever I have the opportunity I will do my utmost to cut down the military spirit and to
instil into the people of this land a love of their homes, and also the necessity of defending
25 them in the only legitimate manner. As the, the hon. member, Sir George Grey, said, either
yesterday or in his speech the other day at the Town Hall, we should educate our people up
to all of this, and especially in New South Wales, where we are giving the people of the
country practically a free education-and it should be common to all Australia-we should
instil into the minds of our children the necessity for training, and, as a quid pro quo for
30 that free education, we should demand from them a certain amount of proficiency in the
use of arms, which of itself would lay the basis of a military organisation for the purposes
[start page 188] of defence only.
END QUOTE
.
35 As shown below;
END QUOTE Chapter 677 Education FUNDING- Private schools- Religion
.
What is important to note is that my issue is not that any organization, regardless of being
religious or not, should not be registered for NON PROFIT (NOT-FOR-PROFIT) where they
40 are doing a job to assist the general community but rather that any entity registered for this
purpose doesn’t act in contradiction to what is legally permissible and neither acts contrary to the
interest of the general public. When then we have reports about religious organizations having
compounds, acting to deprive a person of their rights/freedoms, etc and going about so to say as a
bunch of criminals then I do have genuine concerns about this and I view that those dealing with
45 taxation issues should keep in mind they are not giving away, either directly or indirectly their
own money but rather that of the taxpayers and as such must hold those entities accountable that
in every way they act lawfully and in the spirit of what society is entitled to demand. Therefore
the conditions spilled out above as to certain obligations to anyone who is registered as a NON
PROFIT (NOT-FOR-PROFIT) entity should be applied. It is then in the ends of such NON
50 PROFIT (NOT-FOR-PROFIT) registered entity if it desires to squander this registration or
will act in compliance with it.
.
* I hate to ask you any further question as the moment I do you might just start another 500 or so
explanation, so I better say goodnight.
.
**#** Come on you enjoy people fighting for the cause of JUSTICE, don’t you? Good night.
5 .
* I am not going to enter in any further discussion because I know your fingers are itching to
continue typing.
.
**#** Ok, good night.
10 .
END QUOTE Chapter 0008 SUBMISSION - taxation issues non-profit-etc
.
QUOTE Chapter NOT FOR PROFIT-MUNICIPAL COUNCILS-ETC
Chapter NOT FOR PROFIT-MUNICIPAL COUNCILS-ETC
15 .
* Gerrit, in your past communications with Prime Minister Kevin Rudd and the ATO
(Australian Taxation Office) did you ever raise the issue that the Commonwealth cannot fund
religion and so neither provide tax concessions?
.
20 **#** INSPECTOR-RIKATI®, actually I did but my 8 July 2008 correspondence to Kevin has
so fat not been addressed as I have not received any response in that regard and with the ATO I
think they better get themselves more competent lawyers who at least have some understanding
as to what is constitutionally applicable before they present themselves again before the High
Court of Australia.
25 .
* Why is that?
.
**#** Well they had this case Church of the New Faith v Commissioner of Pay-Roll Tax (Vic)
1983 154 Clr 120 [1983] HCA 40; (1983) 154 CLR 120 (27 October 1983) regarding the
30 provisions of Pay-roll Tax Act 1971 (Vict.),s. 10(b) and in it was stated “the corporation then
appealed to the Full Court.” And “and the corporation now applies for special leave to
appeal against that dismissal.”.
Well when you check the Commonwealth Constitution Act 1900 (UK) you find that it provides
legislative powers for the Commonwealth in regard of; “(xx) foreign corporations”, and trading
35 or financial corporations formed within the limits of the Commonwealth” as such anything to
deal with “companies” is a federal power not a state power.
Further, the Colony of Victoria legislated a separation of State and Church by way of 71-
391a001doc-State Aid to Religion Abolition Act 1871
QUOTE
40 2.Definitions
45 "denomination" shall mean any church religious body sect or congregation or the
members of any church formed into or acting as a body of persons for
END QUOTE
.

tax exempted.
.
.
QUOTE
10 religion, or for imposing any religious observance, or for
END QUOTE
15 .
QUOTE
Constitution?
[start page 1773]

END QUOTE
.
QUOTE
honorable and learned member refers was rendered necessary by the fact that there is not
the definite division of powers in that Constitution that we have in our Constitution. I
30 cannot imagine that clause 52 gives any ground from which it could be argued that
the Federal Parliament has the right to interfere in regard to the exercise of religion,
or to deal with religion in any way.
END QUOTE
.
35 Scientology it self submitted in the past;
40 ChurchofScientologyAsiaPacificRegion.doc&w=%22church+of+the+new+faith+v+commission
QUOTE
integral to the religion, and should not be discretely treated for income tax purposes.
45 END QUOTE
.
Because of the submission “It is submitted that all of the activities undertaken by a religion
should be regarded as being integral to the religion” in fact then all of its activities are by this

subject to ordinary taxation provisions and none can be excluded as otherwise it would offend
the provisions of the constitution and the principles embedded in it.
.
When the Framers of the Constitution debated “excise and customs” duties it was Edmund
5 Barton (later Prime Minister and there after judge of the High Court of Australia) who made
clear that States could not interfere with the Commonwealth of Australia legislative powers
whatsoever and would be bound to pay customs and excise duties as like anyone else as
otherwise the States could get railway rails cheaper then other businesses and that was not what
was intended by this.
10 Therefore, the issue the High Court of Australia was dealing with if the Church of the New Faith
(now known as Scientology) was a religion or not in my view was showing the High court of
Australia never comprehended what was constitutionally applicable as the State of Victoria
bound by the State Aid to Religion Abolition Act 1871 had federated on the basis of separation
of State and church and that no longer funding could be provided.
15 .
But, it goes much further then that, the Commonwealth by s116 of the constitution cannot accept
the registration of any company as a denomination organisation to exclude it from taxes and
hence the not for profit organisation on basis of being a denomination is unconstitutional both for
the State and/or the Commonwealth.
20 .
More over, no company can register in a State as a NOT FOR PROFIT organisation as the
Framers of the constitution made clear that once the commonwealth exercised any powers
provided to it in the Constitution then from that day the Commonwealth legislated the States no
longer could exercise any legislative powers. With taxation it was held that States had state
25 legislative powers but could not levy tax on any area that the Commonwealth had legislative
powers and exercised this. With other word, if the Commonwealth were to legislate for a land tax
then the States would be ousted to raise land taxes.
.
Getting back to the NOT FOR PROFIT registrations, the States therefore have no constitutional
30 powers to legislate for any DENOMINATION to be excluded as a company from taxes of any
kind because company legislation is a Commonwealth power.
.
The Commonwealth cannot provide funding for religions and so neither tax deductions and tax
rebates or for that matter for others to have tax deductions because they donated to a
35 denomination (religious organization).
.
There are organizations, being it that they are religious organizations or not who do provide
services to the community and the Salvation Army is one of them.
When one consider the numerous USA Supreme Court decision in regard of the same provisions
40 in the USA Constitution they made it very clear that for example funding for non religious
purposes (such as school books) would be appropriate provided the monies were not used for
religious matters. As such, the issue is that if a denomination (religious organization) split its
religious services section from its welfare organization and keep them separate than I view the
commonwealth could allow for tax concessions for the welfare section services albeit excluding
45 the religious services. As such the religious organization has the onus to show separate
bookkeeping as to avoid monies being transferred to its religious service section.
.
The states who provide pay roll tax, etc, also by the separation of Church and State has to apply
the same.
50 .

The Commonwealth cannot adopt State NOT FOR PROFIT provisions but must legislate for
itself in that regard and failing there being any then the commonwealth must re-assess all such
NOT FOR PROFIT registered companies and calculate ordinary taxation.
.
5 As Edmund Barton (Later Prime Minister) made clear that the State couldn’t interfere with
Commonwealth legislative powers.
.
* What about local councils?
.
10 **#** You mean “Municipal Councils” as constitutionally the “State Government” is the “local
council”?
.
* You know what I mean.
.
15 **#** They can neither exclude religious organizations of rates and other taxes on basis of
belonging to a denomination or because they are registered as a NOT FOR PROFIT
organization as it is likewise bound by the federal constitution.
.
* What about councillors making special grants to a religious organization, you know how
20 councillors in Banyule City Council can allocate up to $20,000.00 towards their pet-projects?
.
**#**
**#** First of all, it is in my view a sheer and utter nonsense for any councilor to play Santa
Clause with the monies extorted from ratepayers, where they are struggling to survive and make
25 end’s meet.
.
* What do you mean with extorted?
.
**#** If it is not for a lawful purpose then I view it is extortion using ordinary powers to achieve
30 the payments.
.
* Are you saying that a Council cannot fund religious services projects, say for replacement of
stained window or that kind?
.
35 **#** Precisely. It is a religious matter and therefore no council has the power to provide
funding for anything that relates to religion.
.
With the Salvation Army you will find that it is not concerned with what religion you practice if
any at all, it simply provides assistance to people in need, whom ever they are, and hence this
40 part in my view appropriately can be funded by tax payers being it by way of tax deductions, tax
exclusion, etc. However if the Salvation Army wanted a new carpet in a chapel then this would
not be within the powers of Federal or State government to provide for this in any way
whatsoever, not even to allow for tax deduction for those who fund it and municipal councils are
bound by the restrictions that applied to State Governments.
45 .
The State granted municipal councils certain powers and therefore it cannot grant more powers to
a municipal council it doesn’t have itself.
.
* What about the exclusion of political parties from taxation, like the one that now has a Senator
50 in the Federal Parliament?
.

**#** Firstly, if the party is a religious organization it would be excluded from any tax exclusion
not applicable otherwise to other organizations. Secondly, where it deal with non religious
political parties in general then it neither can provide for tax exclusions unless this so was
registered under Commonwealth law for so far we deal with political parties registered as
5 companies.
Most businesses are so to say jumping on the bandwagon to register as some form of corporation
to try to exclude personal liability to some extend not realizing that by this they are falling under
federal legislation.
10 * What about states registering companies?

.
**#** You cannot have both the Commonwealth and the States covering the same legislative
power and as I indicated above that the Commonwealth was provided with this legislative power
then technically any State registration as to any company is to be deemed NULL AND VOID
15 from the day the Commonwealth commenced to exercise its legislative powers.
.
QUOTE Mr. REID:
We must make it clear that the moment the Federal Parliament legislates on one of
20 those points enumerated in clause 52, that instant the whole State law on the subject is
dead. There cannot be two laws, one Federal and one State, on the same subject. But
that I merely mention as almost a verbal criticism, because there is no doubt,
whatever that the intention of the framers was not to propose any complication of the
kind.
25 END QUOTE
.
QUOTE
The Hon. R.E. O'CONNOR (New South Wales)[3.18]: We ought to be careful not to load
30 the commonwealth with any more duties than are absolutely necessary. Although it is
quite true that this power is permissive, you will always find that if once power is
given to the commonwealth to legislate on a particular question, there will be
continual pressure brought to bear on the commonwealth to exercise that power. The
moment the commonwealth exercises the power, the states must retire from that field
35 of legislation.
END QUOTE
.
QUOTE
40 Mr. OCONNOR.-Directly it is exercised it becomes an exclusive power, and there is
no doubt that it will be exercised.
END QUOTE
.
That is also why the State Land Taxes are unconstitutional because since3 11 November 1910
45 this became an exclusive Commonwealth power and as any Commonwealth legislative power is
to be “uniform” then no State can later divert from this, regardless that since 1952 the
Commonwealth abolished land taxes. Once a Federal legislative power then always a federal
legislative power.
50 .
* What about any State registration prior to the Commonwealth commenced to legislate?
.
**#** the Framers of the Constitution made clear that once the Commonwealth commenced to
legislate then all this was the only issue however those who had complied with State legislation
now fell under Commonwealth legislation. They also made clear that the Commonwealth could
not make a criminal by retrospective legislation, etc. As such, if a company was validly
5 registered under State legislation and the Commonwealth then commenced to legislate for the
Commonwealth then had to keep in mind that it would not cause companies to be in breach of
law where they had acted validly under State laws. As such, the Commonwealth has an onus that
when it exercises its legislative powers to ensure it does so in a reasonable manner. It may be for
example that the Commonwealth may object to certain parts of State registration legislation and
10 for this legislate a time period for companies to adjust to new Commonwealth powers. However,
because the commonwealth must provide legislation for “the whole of the Commonwealth” it
cannot therefore exclude some but not others from its legislation. Meaning that at all times the
legislation must be to provide all companies the same regime.
.
15 * What happened about your objection to the GST when you wrote to the ATO?
.
**#** As I stated the O’Meara decision by the Federal Court of Australia was ill conceived
because the Framers of the Constitution made clear that no Taxation legislation in its final format
can be applied to raise taxes from more then one item and they specifically referred to the “rail”
20 and the “post” (on farmers land). Now the GST might be deemed to be a supply tax but still it
applies then to both the “rail” and the “post” and therefore is unconstitutional. You can pretend it
applies to service or whatever but in the end the end result is the same it applies to more then one
article and therefore unconstitutional.
QUOTE
Mr. HIGGINS:
30 END QUOTE
.
QUOTE
35 which is a Bill has become law. if it deals with anything more than the imposition of
unconstitutional and void; so when an Act affecting to deal with more than taxation,
contravention of this provision, that would be an unconstitutional and therefore a
40 void Act.
END QUOTE
.
While the ATO in its correspondence to me claimed that the GST is a tax on businesses, the truth
is that the Senate inquiry to investigate the application of a GST dealt with a tax on consumers.
45 There is no constitutional power for the commonwealth (for the Crown) to give taxation powers
to traders and neither to impose to their likings the GST or not. As the Framers of the
Constitution made clear Commonwealth law could only be enforced through State Courts by
Judicial decision and hence no Municipal City Council either has a constitutional position to
charge GST in regard of ratepayers because it is not a judicial decision, as no municipal council
50 had judicial powers. As I explained previously also to the ATO all unconstitutionally collected
GST must be refunded to the people against whom it was charged.
.
federal laws in the USA;
5 QUOTE
10 as follows:
unconstitutionality dates from the time of its enactment, and not merely from the date of
15 inoperative as if it had never been passed. Such a statute leaves the question that it
20 A void act cannot be legally consistent with a valid one. An unconstitutional law cannot
it.
25 END QUOTE

.
30 Quick & Garran's "Annotated Constitution of the Commonwealth of Australia" more accurately
35 .
QUOTE Mr. GORDON.-
40 END QUOTE
.
Again;
.
45 Actually “Chapter 607-ATO & GST-TELSTRA” of my previous published book set this out in
more details as well as other matters.
.
Hansard 8-2-1898 Constitutional Convention Debates

QUOTE
We are making a Constitution which is to
Mr. O’CONNOR.-I do not think so.
endure, practically speaking, for all time. We do not know when
some wave of popular feeling may lead a majority in the
5 Parliament of a state to commit an injustice by passing a law
that would deprive citizens of life, liberty, or property without
due process of law.
END QUOTE
.
10 And
QUOTE
Mr. O’CONNOR.-No, it would not; and, as an honorable member reminds me, there is a
decision on the point. All that is intended is that there shall be some process of law by
which the parties accused must be heard.
15 END QUOTE
And
QUOTE
Mr. O’CONNOR.-With reference to the meaning of the term due process of law, there is
in Baker's Annotated Notes on the Constitution of the United States, page 215, this
20 statement-
Due process of law does not imply that all trials in the state courts affecting the property of
persons must be by jury. The requirement is met if the trial be in accordance with the
settled course of judicial proceedings, and this is regulated by the law of the state.
If the state law provides that there shall be a due hearing given to the rights of the parties-
25 Mr. BARTON.-And a judicial determination.

Mr. O’CONNOR.-Yes, and a judicial determination-that is all that is necessary.
END QUOTE
.
30 QUOTE
Mr. BARTON.-Yes; and here we have a totally different position, because the actual right
which a person has as a British subject-the right of personal liberty and protection
under the laws-is secured by being a citizen of the States. It must be recollected that
the ordinary rights of liberty and protection by the laws are not among the subjects
35 confided to the Commonwealth.
END QUOTE
.
The Commonwealth of Australia has no constitutional powers of the liberty of a person, as
this lies with the States.
40 .
QUOTE
Mr. HIGGINS.-But suppose they go beyond their power?

END QUOTE
.
5 I take the position that therefore Banyule City Council has no legal position to apply GST
without first having obtained a Court order to do so. To allow otherwise would mean the
Commonwealth would place itself above the Constitution and disregard the judiciary specifically
established to determine any conflict of laws.
.
10 It may be odd for a city council having to pursue legalities of matters but then if Banyule City
Council seeks to enforce GST legislation contrary to my objection then it cannot do anything
unless it first obtains a Court order by way of JUDICIAL DETERMINATION,
.
Let’s try to use an example.
15 If the Commonwealth were to legislate that I can remove any funds Banyule City Council
collected and hand it over to the Federal treasury, would not then Banyule City Council in the
first place argue that the Commonwealth lack such constitutional powers and therefore it isn’t
relevant if the legislation authorize me to remove their funds (monies) as unless there is a court
order to provide for it the legislation enacted by the Commonwealth has no legal force?
20 And likewise if Banyule City Council is extorting monies from me under the purported GST
provisions I am equally entitled to demand it provide me with a copy of the relevant court order
to prove it is duly and properly authorized to do so. Indeed, where it squanders my rates also on
items I deem unconstitutional it even further is an issue I hold the Banyule City Council as any
other city council should do is to prove their judicial order to be entitled to act as such.
25 .
If a police officer attends to my residence without WARRANT issue and attempts to enter my
property I have my common law rights to prevent this.
.
If a police officer attends to my property and seek to remove from my property under all kinds of
30 threats my motor vehicle without a WARRANT issue again I have my common law rights to
oppose this.
.
I do not need to go to Court to obtain a prohibition order against the police as by common law
not even the queen can enter my property without my consent.
35 .
Banyule City Council as such, while not entering my property as to the land I owe, by charging
GST are equally removing from me under their demands “property” ( monies) by inducing me to
pay rates that include GST.
.
40 As like the police officer I do not have to go to Court to oppose this unconstitutional conduct
rather Banyule City Council has to prove it acts lawful by way of Court determination against
me, that it can charge GST.
.
As I corresponded to Prime Minister Kevin Rudd where is the constitutional powers to
45 legislate as to environment and cause Banyule City Council to incur about 1.2 million dollars to
change light globes for special light globes?
In my view there simply is not such legislative powers and I view that Banyule City Council
before considering any of this kind of legislation to be enforceable should have had matters
appropriately researched.
50 I am well aware that more then likely no councillor ever considered the fact that he/she must act
appropriately and cannot merely demand monies from ratepayers irrespective if the purpose for

which the monies or part thereof is being use is unconstitutional/unlawful but where they are
councillors they better realize they do have obligations towards ratepayers.
The same is with Banyule City Council as like other councils and organizations such as
WATER corporations, etc, having somehow been authorized by the State government to apply
5 overdue interest and other charges. Well the Framers of the Constitution provided corporations
powers to the Commonwealth and also provided for
Constitution. Subsection 51
QUOTE
(xiii) banking, other than State banking; also State banking
10 extending beyond the limits of the State concerned, the
incorporation of banks, and the issue of paper money;
END QUOTE
.
Therefore, it would be UNCONSTITUTIONAL for State Parliaments to legislate for municipal
15 councils, water boards, and others to be able to charge interest rates as they are governed under
the term of “trading companies” (as was applicable at the time of federation – and therefore still
applicable) as to being deemed to be businesses that are not banking companies but are
nevertheless lending monies, etc.
.
20 Yet we find scrupulous municipal councils, water boards and others relentlessly pursuing people
even to use debt collectors to enforce also interest even so no constitutional position as such
exist.
Unless such companies are within commonwealth law registered to be allowed to operate as
“trading companies” I view they have no power to enforce such interest and other charges.
25 .
Indeed it circumvent the DUE PROCESS that is applicable within the constitution because it
allows a form of terrorism upon the citizen.
To give an example.
Telstra engaged a few years back a debt collector as to try to collect about $700.00 plus from me
30 even so the bill was not in my name and neither authorized for this. Indeed, I had never visited
the location where the bill was created.
Telstra had nevertheless disregard privacy laws and disclosed my identity and the Debt Collector
Agency then began its campaign of terrorist to try to get me to pay the outstanding account.
Finally getting fed up with it I wrote to them that I would pursue a court order against them if
35 they did not stop. They did.
.
Then I have this current matter with a WATER board that delivered WATER to one of my
properties on request of the person who occupies the property and engaged in a contract with the
WATER board for this. I was provided with accounts and it was made clear that under
40 legislative provisions I was obligated, as owner of the property, to pay. Not wanting to have a
bad credit rating I ended up paying. Only later to discover that because I was paying the same
bill as the occupier had also done the occupier simply stopped to pay the bill. This then became
more complicated. The WATER board then making clear it would charge interest against me
and place the matter in hands of a Debt Collection Agency.
45 While to keep the STATUS QUO I made further transfer of funding, actually in excess to what
the bills were, indicating it was not to be seen I accepted liability I did however request a copy of
the legislation they relied upon.
They provided by facsimile a copy and it turns out the legislation didn’t at all provide the powers
the WATER board had claimed but in fact stipulates that the WATER board is to deal with the
50 account holder. Neither did it provide any provision that a WATER board can fraudulently
obtain payment from the occupier who was the account holder as well as from the property
owner.
As such what we have is a form of TERRORISM deployed by a local WATER authority
seeking to manipulate its powers and generally getting away with it.
.
It is this kind of criminal conduct that is going on where we as a society have lost the plot and
5 forget about the so called TERRORIST walking about with weapons as we find that
TERRORISM is rife by those who are supposed to provide public service.
.
We have had incidents of a municipal council selling wrongly the property of a resident, etc, and
this should come to an end. We must return to a law and order and consider that Federal,
10 State/Territorial and so also municipal councils can only act within the provisions of “peace,
order and good government”. Meaning that no municipal council can enforce its own laws
against a citizen without a Court’s judicial order.
It is a fundamental principle of constitutions that Court provide a judicial decision and no one has
the right to take the law into their own hands, not even municipal councils.
15 .
A stark welcoming conduct was when Cr Dean Sheriff on 14 July 2008 as I understood it made
clear to fellow councillors to show some common decency to struggling ratepayers and that re
should be no issue not to seek appropriate powers from the State government to perform this
service to ratepayers. This is the kind of spirit one can find among the Framers of the
20 Constitution that it is not every one look after himself but that there is a understanding that by
looking after your fellow man you look after yourself.
Indeed Mr Howe in 1891, 1897 and again in 1898 pursued this principle to get finally the
majority of the delegates at the Constitution Convention to accept that “(xxiii) invalid and old-age
pensions ” was to be part of the federation by having it in the constitution. Unbeknown to many
25 this in fact included the poor, homeless, lunatics, paupers, etc actually all are also falling within
this provision but unless you are a constitutionalist who has extensive researched these matters it
would be unknown to a person, including constitutional law professors.
Anyone who heard Cr Dean Sheriff talking (14-7-2008) and read what Mr Howe stated would
beyond doubt hold that they appear to be molded from the same material, that is truly desiring to
30 look after their fellow mean and not just only their own personal benefits.
This was the spirit of federation but regretfully councillors these days do not appear to show this
exemplary kind of attitude.
.
Councillors are to represent the ratepayers and not to terrorize them and ignore their wellbeing.
35 .
Let say for example some street fire breaks out that people have to be evacuated. Now you might
be hard pressed to find any municipal council having a disaster plan in place that would enable
an immediate disaster plan to be available to remove the old and the infirm and the disabled from
residential places that need to be evacuated. There simply appears to be system in place to
40 address such an issue. As such what are municipal councils for if the basic needs of residence are
ignored?
.
Municipal councils are there in the first place to promote the residents health and wellbeing and
what is best in general for the community but when it comes to the crunch more then likely a
45 person needing help in an emergency will have next to no assistance.
.
People who lack the funds to live ordinary may have to cut cost for the ever increasing rates and
by this may even have to do without telephone connection and then lack any ability to be in
contact with emergency services when the need arises.
50 .

Indeed why have municipal councils if they basically try to operate as some additional level of
government while the very purpose for which they were created is slowly ignored more and
more?
.
QUOTE Mr. CARRUTHERS.-
10 the several states, and a state shall not make or enforce any law abridging any privilege or
immunity of citizens of the Commonwealth, nor shall a state deprive any person of life,
END QUOTE
15 .
Even this seems to be lacking where a municipal council is more concerned of raising rates no
matter what hardship there might be and apply, albeit unconstitutionally, interest, while spending
on their kind of pet-projects no matter how unconstitutionally or otherwise unlawful this might
be.
20 In my view in general they have lost the plot.
* Wasn’t there a book distributor making clear that if you didn’t provide an ABN number it was
bound to deduct 48.5% of the invoice in regard of GST because the legislation provides for this?
25 .
**#** Yes, and I then made clear they would not be able to get a single copy from me because
this legislation is unconstitutional and no one is going to force me to comply with
unconstitutional legislation as only a State court can determine these matters.
.
30 * And?
.
**#** They have indicated they will pay the full invoice price.
.
* Did they?
35 .
**#** For so far I have decided not to have any dealing with them because I do not like it that
they tried to go against my constitutional rights. So, no need to forward any invoice because I
refused to provide them with that they requested to be supplied with.
.
40 * But would this not be financial harmful to you having such large distributor not being provided
with books to sell?
.
**#** In life one has either principles or not. As an Attorney I assisted many over the decades in
their litigation but never charged for this as I do not prostitute myself in that regard. I have no
45 obligations therefore towards anyone to deceive the courts or otherwise act against any persons
interest, not even to that of the opponent.
.
* So, you view lawyers prostitute themselves?
.
50 **#** My view is that in general they do as they take the side of a party regardless if this
provides JUSTICE to the other party. I have no such limitations or inappropriate considerations
as one party may call me in and I might end up assisting both parties or assist the opponent party
instead. That is the condition I have always stipulated for me to assist anyone in the litigation,
they take it or leave it.
.
5 * I just was wondering. If a NOT FOR PROFIT organization made a donation to a
denomination (religious organization) in regard of religious matters would that be a problem?
.
**#** It would be an abuse of the NOT FOR PROFIT status as it would be a backdoor
approach to fund religious services. As such the NOT FOR PROFIT status has been abandoned
10 and should be stripped.
.
* Would you say your wife is religious?
.
**#** Yes.
15 .
* And does she share your views about excluding religious organization in regard of tax
deductions?
.
**#** Actually, she find it sickening politicians going to large church organizations prior to and
20 during an election trying to score their votes as she holds that religion is a persons personal
choice and should not be use in politics. Also, she views that large companies operating under
the shield of being a denomination and so gain tax exclusion is to undermine what religion is
about. Essentially nothing less then when reportedly Jesus overturned the tables of the money
makers. Religious belief is a mental status of a person and if you turn this in a money spinning
25 enterprise it is no longer for purpose of religious beliefs.
.
In my view the late Mother Teresa was a clear example where she showed her religious belief to
assist the poor regardless of their known religious status and not for trying to make money out of
it all.
30 .
* I understand there are council elections coming up and I wonder if you are going to stand for
council again?
.
**#** to tell you the truth I do not know because I have reservations about the ever escalating
35 fee for candidates to nominate both in the municipal elections, State elections and Federal
elections. In fact for this I boycotted the last State and Federal election because it is
unconstitutional to raise any fee as the Framers of the Constitution made clear that even the poor
should be able to stand as a candidate. Now, if you are , such as in federal elections, going to
demand some $500.00 payment for a candidate to stand for election then effectively many of the
40 poor would be excluded to stand as a candidate. As the Framers of the Constitution made clear
the fact that a person might be poor doesn’t mean the person is less competent. As they explained
a person could end up poor by no fault of his own and then still could be competent in
representing electors as his unfortunate loss of wealth should not alter his ability.
.
45 * But don’t candidates get if back if they get more then a certain percentage?
.
**#** well, you could register as a candidate and to your knowledge you will be the only
challenger to a sitting candidate and then just before closing of nominations something occurs
that inspire others to stand as candidates also. Now you lacking the huge finances to campaign
50 end up with, say, 2% of the votes while the rich can afford a huge advertise campaign as they
know they will get it back in the unconstitutional “payment per primary vote”. As such, the
lection process is unconstitutionally stacked for political party candidates as they know they get
at least a certain amount of votes and so can pre-spend on advertising and the poor candidate, no
matter his ability to provide appropriate representation is basically railroaded of having any
opportunity to be elected.
I for one would know that not s single member of any State/Territorial or Federal Parliament
5 would be able to comprehend what is constitutionally applicable as I do. This is not bragging but
reality, as if they did we would not have this utter legal mess we are in now. Yet, in elections I
have basically no hope in the world to get elected on basis of competence because I am not
willing to spend huge amount of monies on an election campaign. As such, raising the
allowances/salaries for councillors/Members of Parliament and/or Ministers of the Crown only
10 ensure you get more likely the rot rather then the competent to represent the electors.
Prior to federation it was an issue of “HONOUR” to represent electors but this now is more
about how they can abuse and misuse their position as much as possible for their own personal
gain, etc.
.
15 * You realize of course some people may not like your statements?
.
**#** In life you never can please everyone and in particularly not those who are offended by
being exposed. You find people have acted in a certain manner because others have done so
before them and they simply are like ZOMBIES and the Banyule City Council is a clear
20 example of this where they were voting on something like a “special charge” without anyone of
them bothering to first ascertain what was legally appropriate despite that I had given the effort
to set it out in my written submission and complicated by a SUPPLEMENT as well as oral
submission. And the same is happening also in State/Territorial and Federal Parliaments.
.
25 Re: AUSTRALIAN CAPITAL EQUITY PTY. LTD. And: ROGER DAVID BARNARD
BEALE, SECRETARY TO THE DEPARTMENT OF TRANSPORT AND
COMMUNICATIONS; ROBERT LINDSAY COLLINS, MINISTER OF STATE FOR
TRANSPORT AND COMMUNICATIONS and THE COMMONWEALTH OF AUSTRALIA
No. WA G14 of 1993 FED No. 141 Legislation (1993) 114 ALR 50 (1993) 41 FCR 242 (1993)
30 30 ALD 849 (extract)
QUOTE
His Honour concluded that in the case before him the publication of the
instrument was essential to the valid exercise of the power and that no
distinction could be drawn between the publication of the notice and the
35 exercise of the power.
END QUOTE
.
Therefore, where Banyule City Council published incorrectly details of the Rosanna Shopping
Village in regard of the “special charge” then for this also it was not a valid publication as
40 required un the provisions of the Local Government Act 1989.
This is the kind of representation we end up with where they seem to be in the position because
they have a cozy income from it rather then wanting to do the right thing to those they represent.
I challenge any lawyer (being a so called constitutional expert or not) they have ever pursued as
many constitutional issues as I have, even so I have done it without being paid for it! Basically
45 any donkey can be elected to a council/parliament and his only disqualification might be to be an
animal rather then his intelligent as a donkey by not saying anything but just barking would
provide the same as the infamous Australian Democrats advertisement during the 2001 Federal
election of having barking dogs. At least a donkey would not vote for nonsense as it doesn’t now
how to vote.
50 .
The same actually is with lawyers and those so called law professors. One judge after having
been appointed to the High Court of Australia refused to hand down a decision as he made
known he didn’t know the constitutional issues involved. This is the kind of competence the
judge portrayed that being appointed to the High Court of Australia doesn’t mean he
comprehended what the Constitution stands for.
.
5 What is so terrible in regard of this all is that we had the Framers of the Constitution working
their guts out over many years to provide us with a democratic system and we had many a soldier
losing his life in seeking to protect the interest of this Australian democratic system and yet it all
is jeopardized by people who are more interested in what they can get out of it for themselves
then to be truly proper representatives for the people they represent.
10 That is why we need an OFFICE OF THE GUARDIAN, a constitutional council, that Advises
the Government, the People, the parliament and the courts as to what are the constitutional
powers and limitations so finally we can even have the ZOMBIES representing us becoming
aware what is constitutionally appropriate
.
15 Parliament never should have an issue about breast feeding babies in it as that underlines how
low we have sunk. It is after all the parliament to legislate for the good of the general community
within constitutional powers and not that elected representatives are side tracked because some
woman may desire to flash her breast in the Parliament to feed some baby. Anyone who fails to
understand this simply doesn’t belong in the Parliament. People at times can loose a court case
20 pending where a comma may be stated in the legislation that is considered by the court and as
such it is essential that those who are in the Parliament have ample and sufficient concentration
about legislation and not be side tracked by a crying baby, etc.
.
We do not see police women standing on a corner directing traffic while breast feeding a baby or
25 holding a baby because simply this got nothing to do with equality but with the issue of that you
must be able to perform a function for which you are being employed or otherwise being paid
for.
.
I recall some 20 years ago while sitting at a lake talking to a woman holding a baby she suddenly
30 without warning exposed her breast and started to feed the baby. It didn’t worry me as I simply
continued to talk to her as if nothing was happening. If the mother held the baby needed to be fed
then so be it. In the circumstances I held there was no issue with this, however I do not accept
that the parliament is the place to do the same because the purpose of the Parliament is to
legislate as to very serious issues and every letter and comma is of vital importance and can
35 make the difference to a person being defeated in court or not. Hence, any detraction that is not
relevant to the proceedings itself must be avoided, so the feeding of babies in the House.
.
* I think we got a bit of track about the NOT FOR PROFIT issue, don’t you think?
.
40 **#** Perhaps to some extend but then if we have parliamentarians voting on Bills being side
tracked by non parliamentarian matters then no wonder we are ending up in this huge legal mess.
Perhaps the time comes we are going to have female councillors flashing their boobs in the
council chamber to feed some baby? Are we going to have female lawyers of the ATO standing
in court while breast feeding their babies? Perhaps the female judge dealing with cases while
45 feeding a baby?
.
No one really may understand let alone what is appropriate with this whole NOT FOR PORFIT
registration because they are all too busy considering how to accommodate for breastfeeding
mothers instead of addressing themselves to what is constitutionally or otherwise legally
50 appropriate.
.

* Now that you attended to the council meeting of Banyule City Council after years of not
having done so are you eager to visit again as I understood you used to go fortnightly some
decades ago?
.
5 **#** That was decades ago and this involved another city council where prior to council
meeting there was an opportunity to get together and have coffee, cake and sandwiches for
consumption. I was then secretary of the local progress association and had great respect for the
kind of councilors we then had!
.
10 * And now?
.
**#** See my previous answer!
END QUOTE Chapter NOT FOR PROFIT-MUNICIPAL COUNCILS-ETC
.
15 Just don’t complain that this Submission is not presenting sufficient information because
rest assured I can easily dramatically increase the volume of submissions and you be all for
eternity trying to work through it all, that is if not the People in the meantime take over to
stop the rot!
.
20 MAY JUSTICE ALWAYS PREVAIL®

.
( Our name is our motto!)
Awaiting your response, G. H. Schorel-Hlavka


110605-Submission National Funding Agreements - ETC

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Committee Secretary 5-6-2011

Joint Committee of Public Accounts and Audit

Paul Duffus, Deputy Commissioner of Taxation C/o deborah.green@ato.gov.au

5-6-2011 Submission Re Charities Page 2

5-6-2011 Submission Re Charities Page 4

Hansard 31-3-1891 Constitution Convention Debates

40 MAY JUSTICE ALWAYS PREVAIL®

Our name is our motto!

45 Awaiting your response, G. H. Schorel-Hlavka

QUOTE Chapter 0008 SUBMISSION - taxation issues non-profit-etc

5-6-2011 Submission Re Charities Page 8

Dr. COCKBURN.-The Thugs are a religious sect.

5-6-2011 Submission Re Charities Page 9

5-6-2011 Submission Re Charities Page 10

[start page 1773]

5-6-2011 Submission Re Charities Page 11

HANSARD 8-2-1898 Constitution Convention Debates

5-6-2011 Submission Re Charities Page 15

5-6-2011 Submission Re Charities Page 17

5-6-2011 Submission Re Charities Page 18

5-6-2011 Submission Re Charities Page 20

5-6-2011 Submission Re Charities Page 22

5-6-2011 Submission Re Charities Page 23

Internal Revenue Code § 170, 26 U.S.C. § 170.

(c) Charitable contribution defined.-For purposes of this section, the term

(2) A corporation, trust, or community chest, fund, or foundation- (A) created or

5-6-2011 Submission Re Charities Page 26

B. Denial of Exemptions and Deductions May Be Required by Underlying Law of

1. General Law of Charitable Trusts.

It is because society is "the real beneficiary of every charitable trust" that it is

5 FN7. Restatement (Second) of Trusts § 124 (1959).

FN10. Lord Macnaghten's oft-cited definition in Commissioners for Special

Restatement (Second) of Trusts, § 368 (1959), spells out two additional

40 (a) the relief of poverty;

(b) the advancement of education;

(c) the advancement of religion;

5-6-2011 Submission Re Charities Page 28

(e) governmental or municipal purposes;

(f) other purposes the accomplishment of which is beneficial to the community.

A leading American definition of charitable trusts appears in

FN11. Rev.Rul. 67-325, 1967-2 Cum.Bull. 113.

FN12. 4 A. Scott, The Law of Trusts § 374.2 at 2905-06 (1967).

FN14. 4 G. Bogert, supra note 5, § 369 at 63.

5-6-2011 Submission Re Charities Page 29

FN15. 4 A. Scott, supra, note 12, § 368 at 2855-56.

2. The Common Law Rulings Avoiding Enforcement of Purpose of Racially

Discriminatory Private Education.

FN24. Where there is no paramount declaration of government policy, the

5-6-2011 Submission Re Charities Page 31

Commissioner of Internal Revenue v. Tellier, 383 U.S. 687, 86 S.Ct. 1118, 16

25 FN26. See Saks, The Roll of Philanthropy: An Institutional View, 46 Va.L.Rev.

FN30. SeeDandridge v. Williams, 397 U.S. 471, 475-476, 90 S.Ct. 1153, 25

D. There Is No Merit In Contentions of Intervening White Parents that This

FN32. Intervenors' Points and Authorities in Opposition to Plaintiffs' Motion for

5-6-2011 Submission Re Charities Page 35

5-6-2011 Submission Re Charities Page 36

5-6-2011 Submission Re Charities Page 37

45 As a "constitutionalist" (not some lawyer who is brainwashed) I condemn any one, in

As author of the INSPECTOR-RIKATI® books in regard of constitutional and other

20 In the Commonwealth of Australia judges are purportedly appointed by the Governor-

30 But, I successfully challenged this validity of this De Facto Constitution in Court.

5-6-2011 Submission Re Charities Page 39

As I exposed in my book published on 30 September 2003

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

# That is a proper manner to state this.