100414-kevin rudd pm - re health issues - referendum issues

8/9/2019 100414-Kevin Rudd PM - Re Health Issues - Referendum Issues

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14-4-2010 Page 1PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the websiteHttp://www.schorel-hlavka.com will be the alternative website, contact details. [email protected]

Kevin Rudd PM 14-4-2010C/o [email protected]

.5Cc: Tony Abbott MP

[email protected]

.

AND TO WHOM IT MAY CONCERN.10

Re: Health issues Referendum issues - etc.

Kevin,Below I quote 7-4-2010-SUBMISSION - REFERENDUM COUNCIL as to avoid

having to set out the same again.15.

There appears to me, as a CONSTITUTIONALIST, to be a considerable misconception as tothe true meaning and application of s.128 referendum provision in The Commonwealth of

Australia Constitution Act 1900 (UK), at least this I also gather from the various media reports,

etc. Section 128 of the constitution is to provide electors the opportunity to approve or veto a20proposed amendment of the constitution, however, what seems to be misconceived its that

regardless if an amendment is approved by a s.128 referendum it may still not be constitutionally

have any legal force.

.Let me give two examples:25The Commonwealth of Australia submits to the electors a s.128 referendum as to approve for the

Commonwealth to set up nuclear power stations in South Australia. All States but South

Australia supports this and vote for the constitution to be amended accordingly. One would seem

to hold that as the majority of the States and the majority of the electors approved of the

amendment to the constitution then it is applicable. The truth is far from it. S.123 requires that30first a State referendum is held and only if this State referendum approved of this then and only

then can the Commonwealth of Australia pursue a s.128 referendum for the same.

As the Framers of the Constitution made clear whenever it was relating to the sovereign rights of

a State then unless the State electors approved of this first it couldnt be that other States could

somehow by s.128 referendum could override the affected State.35.

Lets use another example.

The commonwealth desires to store nuclear wast in Tasmania as this is a smaller State and an

island and so can be better supervised by the navy and so it submits to the electors a s.128

referendum to give the commonwealth powers to store nuclear wast in Tasmania and to take such40action as it deems appropriate to remove people from their properties, etc.

All States other then Tasmania vote to approve of this but Tasmania opposes the referendum.

Despite that there is a majority of States and a majority of electors voting in favour of this

amendment to the constitution the failure of first obtaining s.123 State referendum approval in

Tasmania means that the s.128 referendum is worthless.45 .


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As the Framers of the Constitution made clear the State couldnt combine to overrideanother States sovereign rights..

Therefore, when it comes to the issue of health and as Premier John Brumby on 14-4-2010during his National press Club address made clear to pursue Putting Patients First there is no5s.128 referendum powers possible to override the State of Victoria as to health matters as it

would required for each State to hold a State referendum within s.123 of the constitution to

approve this and then a s.128 referendum to deal with this.

.A clear example how things can go horrible wrong when you get lawyers giving advise who are10

not CONSTITUTIONALIST and so give ill conceived advise is the 1967 s.51(xxvi)referendum to amend this section to remove the exclusion of Aboriginals. No one seemed to have

understood that this would then deny the Commonwealth to legislate as to religious conduct, etc,

of Aboriginals because of s.116. You find States still legislating in regard of Aboriginals even sothey lost this power way back in 1967!15

The only way states can legislate as to the effect upon Aboriginals is where they pass a general

law such as say a criminal act which then applies to all citizens and visitors to the State.

However, the Commonwealth could in fact enact legislation that may override general law.

Say the State of Victoria passes a law that any person residing in the State of Victoria is entitledto own and operate a gold mine if they desire to do so. The Commonwealth of Australia however20

passes a law that Aboriginals are not permitted to own and operate gold mines without a specific

licence granted by the Commonwealth. Because of s.51(xxvi) the State legislation for so far as it

relates to Aboriginals would not apply to Aboriginals because while ordinary it would be it isthat the Commonwealth legislation prohibits this without a special Commonwealth permit.

Actually, the very purpose for s.51(xxvi) was that the Framers of the Constitution held that the25

Commonwealth could prohibit Chinese to operate a mining licence for a number of years, etc. As

such, ordinary local contract conditions within the State of Victoria may not apply where the

commonwealth in regard of a specific race has legislated. Any Commonwealth law regarding acertain race must to applicable to all members of that race, and as such one cannot have that an

Aboriginal could hold a gold mine in WA and not in Victoria.30One cannot have that Aboriginals are denied their permits or property rights in the Northern

Territory but not Aboriginals elsewhere because all, no matter if they are a politicians, doctor,

lawyers, etc, and no matter where they reside they all fall under the same legislation.The re is no such thing as the Commonwealth to legislate for example only for the Northern

Territory Aboriginals but not so for other Aboriginals as it must be applicable to all Aboriginals.35

.

The Commonwealth of Australia cannot fund health matters unless it has constitutionalpowers to do so and clearly it has constitutional powers within;.The Commonwealth of Australia Constitution Act 1900 (UK)40

QUOTE(xxiiiA) the provision of maternity allowances, widows pensions,child endowment, unemployment, pharmaceutical,sickness and hospital benefits, medical and dental services(but not so as to authorize any form of civil conscription),45benefits to students and family allowances;

END QUOTE

.Hansard 8-2-1898 Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention)50QUOTE Mr. BARTON.-

I take it that in the absence of a provision in the Constitution conferring that power

upon the Commonwealth it will be impossible for the Commonwealth to do so. Forthis reason I think we need scarcely trouble ourselves to impose any restrictions.


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Under a Constitution like this, the withholding of a power from the Commonwealth isa prohibition against the exercise of such a power.

END QUOTE.

Hansard 2-3-1898 Constitution Convention Debates5QUOTE

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

we are not going to make the Commonwealth a kind of social and religious powerover us.10END QUOTE

.HANSARD 1-3-1898 Constitution Convention DebatesQUOTE Mr. GORDON.-

The court may say-"It is a good law, but as it technically infringes on15the Constitution we will have to wipe it out."

END QUOTE.

HANSARD 1-3-1898 Constitution Convention DebatesQUOTE Mr. BARTON.-20

The position with regard to this Constitution is that it has no legislativepower, except that which is actually given to it in express terms or which isnecessary or incidental to a power given.

END QUOTE

.25Hansard 19-4-1897Constitution Convention DebatesQUOTE

Mr. MCMILLAN: I think the reading of the sub-section is clear.

The reductions may be on a sliding scale, but they must always be uniform.

END QUOTE30.

Hansard 19-4-1897Constitution Convention DebatesQUOTE

Sir GEORGE TURNER: No. In imposing uniform duties of Customs it should not benecessary for the Federal Parliament to make them commence at a certain amount at once.35

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 tofix the uniform tariff, and if any reductions made are on a sliding scale great injurywill be avoided.

END QUOTE40.

Hansard 17-3-1898 Constitution Convention Debates

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 ofuniform duties of customs, and further reflection has led me to the45conclusion that, on the whole, it will be a useful and beneficial provision.

END QUOTE.

Hansard 11-3-1898 Constitution Convention DebatesQUOTE50

What is really wanted is to prevent a discrimination between citizens of theCommonwealth in the same circumstances.

END QUOTE

.

Not only in regard of taxation but also with funding of hospitals, etc, the Cmmonwealth is bound55to apply uniform financial support.


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.

Hansard 16-2-1898 Constitution Convention DebatesQUOTE

start page 1020] I think that we ought to be satisfied on these points, and satisfied thatif we leave the clause as it now stands there will, at any rate, be some proviso inserted5which will safeguard the states in the carrying out of any of their state laws overwhich the states are to be supreme even under federation.

END QUOTE

.Hansard 8-3-1898 Constitution Convention Debates10QUOTE Mr. CARRUTHERS (New South Wales).-

It does not require a majority of the states to insist that the Constitution shall beobeyed, because a majority of the states cannot by resolution infringe theConstitution.

END QUOTE15.

Hansard 8-3-1898 Constitution Convention DebatesQUOTE

Sir JOHN DOWNER.-I hate the word "unification," and will not use it. I have saidbefore that there is much to be said for amalgamation. I can understand that there20

might be an immense amount of money saved by amalgamation in the way of carryingon the government of the country, and there might be an immense amount of forcefrom the head of the Commonwealth which you cannot get from the partialdisintegration which is involved even in federation. But it is not our mission toestablish an amalgamation of these colonies. We are here under Bills passed by our25various colonies, and there is a claim for federation, and not a claim for merging thecolonies in one common concern.

END QUOTE.


Mr. ISAACS.-I am not prepared to answer that question, but when we look at clause 52we find these governing words on the very forefront of that clause-

That Parliament shall, subject to the provisions of this Constitution, have full powerand authority to make laws for the peace, order, and good government of the35

Commonwealth.

We see there that the Commonwealth is named as distinguished from the states. Wehave our Constitution framed in this way with a Senate to guard what? The interests of thestates, so that the Commonwealth shall not intrude one inch into what is retained asthe executive rights and jurisdiction of the states.40

END QUOTE

.HANSARD 27-1-1898 Constitution Convention DebatesQUOTE Sir JOHN DOWNER.-

The people of the various states make their own contracts amongst themselves, and if in45course of their contractual relations disagreements arise, and the state chooses tolegislate in respect of the subject-matter of them, it can do so.

END QUOTE

.Hansard 27-1-1898 Constitution Convention Debates50QUOTE

Mr. SYMON.-Why should you interfere with the laws in the different colonies

affecting the relations of masters and servants, which are purely a matter of domestic


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legislation? Why should you hand over that purely state function to the federalauthority?

END QUOTE.

HANSARD 17-2-1898 Constitution Convention Debates5QUOTE 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 conformto it.10

END QUOTE

.HANSARD 1-3-1898 Constitution Convention DebatesQUOTE

Mr. GORDON.- The court may say-"It is a good law, but as it technically infringes15on the Constitution we will have to wipe it out."

END QUOTE.

HANSARD 1-3-1898 Constitution Convention DebatesQUOTE20

Mr. BARTON.- The position with regard to this Constitution is that it has nolegislative power, except that which is actually given to it in express terms or which isnecessary or incidental to a power given.

END QUOTE

.25

HANSARD 9-2-1898 Constitution Convention Debates

QUOTE

Mr. HIGGINS.-No, because the Constitution is not passed by the Parliament.END QUOTE.30Hansard 6-3-1891 Constitution Convention DebatesQUOTE Mr. THYNNE:

I shall quote from Mr. Dicey's recent work, which is very clear in its language. He says:

One of the characteristics of a federation is that the law of the constitution must beeither legally immutable or else capable of being changed only by some authority35above and beyond the ordinary legislative bodies, whether federal or statelegislatures, existing under the constitution.

END QUOTE.

Hansard 6-3-1891 Constitution Convention Debates40QUOTE Mr. THYNNE:

The constitution of this federation will not be charged with the duty of resistingprivileged classes, for the whole power will be vested in the people themselves. Theyare the complete legislative power of the whole of these colonies, and they shall be so.From [start page 106] them will rise, first of all, the federal constitution which we are45

proposing to establish, and in the next place will come the legislative powers of the severalcolonies. The people will be the authority above and beyond the separate legislatures,and the royal prerogative exercised, in their interest and for their benefit, by the advice of

their ministers will be practically vested in them. They will exercise the sovereignty of thestates, they will be charged with the full power and dignity of the state, and it is from them50that we must seek the giving to each of those bodies that will be in existence concurrentlythe necessary powers for their proper management and existence. Each assembly, each

legislature, whether state or federal existing under this constitution, will be as Diceyagain says-a merely subordinate law-making body whose laws will be valid, whilst


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within the authority conferred upon it by the constitution, but invalid andunconstitutional if they go beyond the limits of such authority.

END QUOTE.


Sir GEORGE GREY: I beg to propose that the following resolution stand as resolutionNo. 5:-

The inhabitants of each of the states of federated Australasia ought to be allowed to

choose, and if they see fit from time to time to vary, the form of state government under10

which they desire to live. Provision should therefore be made in the federal constitutionwhich will [start page 478] enable the people of each state to adopt by the vote of themajority of voters, their own form of state constitution.

Question proposed.

Sir HENRY PARKES: I wish to raise a point of order upon this resolution, and I do15it with the utmost respect to the distinguished gentleman who has moved it. My point

of order is that the resolution goes beyond our instructions. We have been sent herefor one object and one object only, and that is, to prepare a scheme for the framing ofa federal constitution. Anything outside of these prescribed words cannot be dealtwith under the commission in virtue of which we have come here.20

END QUOTE

.Hansard 18-3-1891 Constitution Convention DebatesQUOTE

Dr. COCKBURN: I think we have nothing whatever to do with deciding the details25of the state constitutions. On the other hand, I think it appertains to the functions of thisConvention to decide that the power of framing a constitution shall be in the hands of the

several states. At present the legislatures of the various colonies can only be alteredwith the consent of the Imperial Government. Is it intended that that shall remain? Whenwe have a federated Australasia, in which we have state legislatures and a federal30

legislature, is it intended that the state legislatures shall have the power of altering theirconstitutions at will or not? From that point of view I think the proposition put forward by

the hon. member, Sir George Grey, is decidedly within the powers of the Convention, the

power to lay down a general rule, without touching the details of any individual

constitution, that the various states should have the power of framing their own35

constitutions according to the will of the majority of the people of those states.

END QUOTE.

Again (RE Section 123);Hansard 18-3-1891 Constitution Convention Debates40QUOTE Sir GEORGE GREY:

Provision should therefore be made in the federal constitution which will [start page478] enable the people of each state to adopt by the vote of the majority of voters,their own form of state constitution.

END QUOTE45.

HANSARD 17-3-1898 Constitution Convention DebatesQUOTE

Mr. BARTON.- Having provided in that way for a free Constitution, we haveprovided for an Executive which is charged with the duty of maintaining the50provisions of that Constitution; and, therefore, it can only act as the agents of thepeople.


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END QUOTE

.HANSARD 17-3-1898 Constitution Convention DebatesQUOTE

Mr. DEAKIN.- In this Constitution, although much is written much remains5unwritten,

END QUOTEHANSARD 17-3-1898 Constitution Convention DebatesQUOTE

Mr. BARTON.- We can have every faith in the constitution of that tribunal. It is appointed10as the arbiter of the Constitution. . It is appointed not to be above the Constitution, forno citizen is above it, but under it; but it is appointed for the purpose of saying thatthose who are the instruments of the Constitution-the Government and theParliament of the day-shall not become the masters of those whom, as to theConstitution, they are bound to serve. What I mean is this: That if you, after making15a Constitution of this kind, enable any Government or any Parliament to twist orinfringe its provisions, then by slow degrees you may have that Constitution-if notaltered in terms-so whittled away in operation that the guarantees of freedom whichit gives your people will not be maintained; and so, in the highest sense, the court youare creating here, which is to be the final interpreter of that Constitution, will be such a20

tribunal as will preserve the popular liberty in all these regards, and will prevent,under any pretext of constitutional action, the Commonwealth from dominating thestates, or the states from usurping the sphere of the Commonwealth.

END QUOTE.25HANSARD 10-03-1891 Constitution Convention DebatesQUOTE

Dr. COCKBURN: All our experience hitherto has been under the condition ofparliamentary sovereignty. Parliament has been the supreme body. But when weembark on federation we throw parliamentary sovereignty overboard. Parliament is30no longer supreme. Our parliaments at present are not only legislative, but

constituent bodies. They have not only the power of legislation, but the power ofamending their constitutions. That must disappear at once on the abolition ofparliamentary sovereignty. No parliament under a federation can be a constituentbody; it will cease to have the power of changing its constitution at its own will. Again,35instead of parliament being supreme, the parliaments of a federation are coordinatebodies-the main power is split up, instead of being vested in one body. More than allthat, there is this difference: When parliamentary sovereignty is dispensed with,instead of there being a high court of parliament, you bring into existence a powerfuljudiciary which towers above all powers, legislative and executive, and which is the40sole arbiter and interpreter of the constitution.

END QUOTE

.Hansard 15-9-1897Constitution Convention DebatesQUOTE45

The Hon. A. DEAKIN: I say the great bulk of them are of that character, and am open torefutation if I am wrong, I should say that the whole of the thirty-seven subjects, but,

indisputably, the great bulk of them, are subjects on which no question of state rights and

state interests could arise except by the merest accident. It is, as the right hon. gentleman

admitted, a grave defect in our constitution if we permit these questions to be left for all50time to be determined in a purely states house, or by a state referendum, when thosequestions are not state questions-when they ought to be decided, not on state lines, but on

national lines, and by a national referendum.

END QUOTE

.55


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The above quotations ought to place it beyond doubt that no s.128 referendum could interfere

with the State of Victoria as to somehow deny it its legislative right to deal with hospitals in the

manner it prefers because unless and until there is an s.123 State referendum by the State of

Victoria any s.128 referendum will be null and void.The same so in regard of any referendum affecting any other State.5

.

My wife at 77 is so scared to get proper medical care that she has private health insurance as she

is well aware that for me just to have a scan I was advised in November 12009 to wait until at

least February 2011 just to have a scan of my knee. Now, nothing I heard of the 14-4-2010speech of Mr John Brumby Premier of Victorias is going to change my waiting time and neither10

so will anything the Commonwealth proposes, and as such we have politicians doing their usual

stuff rather then to address the real issues.

My wifes late husband used to attend to public hospitals even so he was in a private health

insurance. In my view when a person is in a private health insurance but occupies a public bedthen this robs another person of a public bed and I view this should be curtailed as the private15

health insurance collects membership fees while the public system provides the care. Yet, if a

public patient were to be transferred to a private hospital then the private hospital would be quick

to charge for this. This means that the public system should equally charge the private

health system for its members using public beds!Why indeed is it that if my wife needed the same scan then she could have it immediately as a20private patient but I have to wait for more then 15 months? How can there be preventative care

when instead of having a scan to avoid it to become more costly I have to wait 15 months just for

a scan and in the meantime the damage is getting worse and so the medical bill to address theissue?

In regard of;25QUOTE

(xxiii) invalid and old-age pensions;END QUOTE

As I have pointed out for years in my books published in the INSPECTOR-RIKATI series oncertain constitutional and other legal issues that the Commonwealth while always pursuing to30

take more and more legislative powers of the States still has not managed even to appropriately

provide for invalid and old age pensioners despite having this legislative powers since federation.

Premier John Brumby in his address on 14-4-2010 at the National Press Club also then referred

to the people using hospital beds because no age care beds are available, again, precisely as Ihave pointed out for years! As such, the real issue is that the Commonwealth rather then for ever35

being in a power grabbing exercise should try to manage the issues already at hand so then and

only then can a proper assessment being made as to the true state of affairs about hospitals.

When we are referring to thousands of old age pensioners occupying hospital beds becausethere are no suitable old age care centre beds as well as many young disabled persons occupyinghospital beds because there are not, better to state nearly none at all, disabled care centre beds for40

the young, then this is clearly an artificially created problem principally created by theCommonwealth by its inaction that that it would in my view be utter scandalous if the

Commonwealth would seek to force ahead with some s.128 referendum for a grab of power

rather then to use that money to finally start caring for the invalid and old aged pensioners whobadly are in need of proper care facilities.45

Prior to the 2007 Federal election, I recall you claiming that the buck would stop with youand no blaming others, where as I understand you have consistently and persistently blamed the

states pretending the Commonwealth can do better while in fact it cannot even manage the

invalid and age pensioners! While so much was wasted with the stimulus package and reportedlya $2 million dollars paid showing merely some concrete the truth is that this money could have50achieved a lot in invalid and age care facilities. After all those people who are in age care during

their working life contributed with taxes so that most politicians now in power had FREEEDUCATION at universities, the same they now deny to other Australians.


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.

Hansard 10-3-1891 Constitution Convention DebatesQUOTE Mr. DIBBS:

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 for5

training, and, as a quid pro quo for that free education,END QUOTE.

QUOTE 7-4-2010 SUBMISSIONWITHOUT PREJUDICE10

Legal and Constitutional Affairs Committee 7-4-2010

[email protected]

02-6277 2358.

AND TO WHOM IT MAY CONCERN15.

Ref: REFERENDUM ISSUES.Sir/Madam,

In this submission I intend to deal with referendum issues but first let me explain my20own position.

As a (self-educated) CONSTITUTIONALIST I look upon legal matters differently then mostlawyers/politicians are doing and in the process able to expose the misconceptions that occur sooften.

.25

To avoid this SUBMISSION to end up in hundreds of pages I have omitted Authorities butthey can be provided if requested, and they also have been widely published by me in mybooks in the INSPECTOR-RIKATI series on certain constitutional and other legal issues..

During a recent completed litigation debates I was representing a man who previously was facing30

up to 5 years imprisonment and had guardianship orders issued over him and then he called me

in to take up his fight for JUSTICE and despite up to about 20 lawyers so far involved in thecase and 6 contempt proceedings out of the total 16 hearing I managed to turn around this caseand criticised all and any lawyers involved for acting unlawfully, etc, then the judicial member,

also subjected to my severe criticism, proposed to have me removed as a representative of this35

man making clear having 3 lawyers on stand by to take over the case. I then made it clear that no

lawyer could represent this man better then I did nor had the competence to do so and neither

understood the legal including constitutional issues as I did and that my criticism to expose theirrot could not be held against me because I had a duty and obligation to pursue JUSTICE for theman I represented and challenged anyone to prove this man ever acted unlawfully as it was40

merely a fabrication by the lawyers concerned and no reliable evidence existed whatsoever inthat regard. At the end of the day the administration orders were set aside and the contempt

proceedings already had been permanently stayed. This is the competence I have to see throughrot and to expose the truth.

.45

Anyone who thinks that this is not relevant to referendum issues better hold on their seat to be

awoken of a shake up.

Lets have a look at the 1999 failed REPUBLIC referendum.The Commonwealth of Australia is constitutionally not a country but a POLITICAL UNIONwhere by the States (the former colonies) by agreement as like the States in Europe) decided to50

combine certain legislative powers and called it the Commonwealth of Australia, as in Europe it

is called EUROPEAN UNION. Both are limited political unions.


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CONSTITUTIONAL LEGISLATIVE POWERS FLOW CHART [52]

The legislative structure from before federation to current, including the effect of the United Kingdom beinga signature to the EUROPEAN UNION constitution, and how this is relevant to Australias legal system. [49]

Flow chart to expose the reduction of legislative powers (legally or illegally) of the States. [55]5

Prior to Federation, under the British Crown,

British Parliament constitutional powers over colonies; South Australia, Victoria, Western Australia,Queensland, Tasmania and New South Wales [11]

10

CONSTITUTIONAL LEGISLATIVE POWERS FLOW CHART [51]

See also; Aggregate Industries UK Ltd, R (on the application of) v English Nature & Anor[2002 EWHC908 (Admin) (24 th April, 2002)and Judgments Mark (Respondent) v Mark (Appellant), OPINIONS, OFTHE LORDS OF APPEAL for judgment IN THE CAUSE, SESSION 2005-6 [[2005] UKHL 42 on appeal

from [2003] EWCA Civ 156 [50]15

Colony WA

Western Australia & Parliamentary sovereignty, Permitted to amend it's own colonial constitution [20]

Colony Qld20

Queensland & Parliamentary sovereignty, Permitted to amend it's own colonial constitution [21]

Colony Vic

Victoria & Parliamentary sovereignty, Permitted to amend it's own colonial constitution [22]25

Province SA & NT

South Australia & Northern Territory & Parliamentary sovereignty, Permitted to amend it's own colonialconstitution [23]

Colony NSW30

New South Wales & Parliamentary sovereignty, Permitted to amend it's own colonial constitution [24]

Colony TAS

Tasmania & Parliamentary sovereignty, Permitted to amend it's own colonial constitution [25]

35

******************************************************************************

After federation, under the British Crown,

British Parliament constitutional powers over colonies; South Australia, Victoria, Western Australia,Queensland, Tasmania and New South Wales [12]40

TAKE NOTICE: At federation there is an abolition of parliamentary sovereignty of Commonwealth, Stateand Territorian Parliaments & requires approval of State referendum to amend State constitution (including

to refer legislative powers to the Commonwealth). [27]


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After federation under the British Crown, the Commonwealth of Australia (federal) Parliamentconstitutional powers transferred from the former colonies (now States); South Australia, Victoria, Western

Australia, Queensland, Tasmania and New South Wales & Territories ( abolition of parliamentarysovereignty). [13]5

TAKE NOTICE: At federation there is an abolition of parliamentary sovereignty of Commonwealth, Stateand Territorian Parliaments & requires approval of State referendum to amend State constitution (including

to refer legislative powers to the Commonwealth). [26]10

T (Lp) [35] (Other acquired Territories)

Western Australia (State) [2] (Legislative powers)

Queensland (State) [1] (Legislative powers)15

Victoria (State) [33] (Legislative powers)

South Australia (State) [32] (& some years NT) (Legislative powers)

20

NT (Lp) [31]

New South Wales (State) [30] (Legislative powers)

ACT (Lp) [29]25

Tasmania (State) [28] (Legislative powers)******************************************************************************

[14] After federation, under the British Crown, the Commonwealth of Australia (federal) Parliament30constitutional powers transferred from the former colonies (now States); South Australia, Victoria, Western

Australia, Queensland, Tasmania and New South Wales & Territories with added legislative powers ofsuccessful referendums.

After federation, under the British Crown,35

British Parliament constitutional powers over colonies; South Australia, Victoria, Western Australia,

Queensland, Tasmania and New South Wales [18]

EUROPEAN UNION constitutional powers transferred from the British Parliament applies to Britishamendments of Commonwealth constitution, but is not binding upon existing constitutional powers of the40

Commonwealth of Australia.

However can be used in aid of Commonwealth and State/Territory legislative provisions. [16]

Tasmania (State) [3] (Legislative powers)

45

ACT (Lp) [4]


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New South Wales (State) [5] (Legislative powers)

NT (Lp) [6]

South Australia (State) [7] (Legislative powers)5

Victoria (State) [8] (Legislative powers)

Queensland (State) [9] (Legislative powers)

10

Western Australia (State) [34] (Legislative powers)


******************************************************************************15

After federation, under the British Crown, the Commonwealth of Australia (federal) Parliamentconstitutional powers transferred from the former colonies (now States); South Australia, Victoria, Western

Australia, Queensland, Tasmania and New South Wales & Territories with added legislative powers ofsuccessful referendums as well as unconstitutional reference of legislative powers of States (not approved by20

State referendums, as is constitutionally required.) [15]

After federation, under the British Crown,

British Parliament constitutional powers over colonies; South Australia, Victoria, Western Australia,Queensland, Tasmania and New South Wales [19]25

EUROPEAN UNION constitutional powers transferred from the British Parliament applies to Britishamendments of Commonwealth constitution, but is not binding upon existing constitutional powers of the

Commonwealth of Australia.

However can be used in aid of Commonwealth and State/Territory legislative provisions. [17]30


Tasmania (State) (Lp) [38]

35

ACT (Lp) [39]

New South Wales [40] (State) (Lp)

NT (Lp) [41]40

Victoria (State) (Lp) [42]

Queensland (State) (Lp) [43]

45

Western Australia [44] (State) (Lp)


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South Australia (State) (Lp) [45]

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The forever shrinking legislative powers of the former colonies, now States, by the illegal confederation5conduct of both State and Federal parliamentarians, from federation onwards. All state reference oflegislative powers and/or amendment to a State constitution without approval by way of State referendumremains to be ULTRA VIRES, and so without legal force. [47

HANSARD 10-03-1891 Constitution Convention Debates QUOTE Dr. COCKBURN: All our experience10hitherto 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 longersupreme. Our parliaments at present are not only legislative, but constituent bodies. They have not only thepower of legislation, but the power of amending their constitutions. That must disappear at once on theabolition of parliamentary sovereignty. No parliament under a federation can be a constituent body; it will15cease to have the power of changing its constitution at its own will. Again, instead of parliament beingsupreme, the parliaments of a federation are coordinate bodies-the main power is split up, instead of beingvested in one body. More than all that, there is this difference: When parliamentary sovereignty is dispensedwith, instead of there being a high court of parliament, you bring into existence a powerful judiciary whichtowers above all powers, legislative and executive, and which is the sole arbiter and interpreter of the20constitution. END QUOTE [48]

THIS IS WHAT WE END UP WITH [56]25

[46] 12-2-2010

Mr G. H. Schorel-Hlavka

CONSTITUTIONALIST, Author30

Publisher, Consultant, Attorney

MAY JUSTICE ALWAYS PREVAIL

.35When then the EUROPEAN UNION on basis of its constitution enacts a law then it isapplicable to all States within its POLITICAL UNION , which are countries such as TheNetherlands, Britain, France, Germany, etc, etc.

All laws of those countries therefore are subject to any constitutional powers the EUROPEANUNION issues albeit any existing constitutional legislation of each country cannot be affected.40As such The Commonwealth of Australia Constitution Act 1900 (UK) is free from any

interference of the EUROPEAN UNION legislation albeit any EUROPEAN UNIONlegislation that is COMPLIMENTARY The Commonwealth of Australia Constitution Act


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1900 (UK) is applicable. As such, any laws the British Parliament may e nact in relation to the

Commonwealth of Australia will be subject to any constitutionally based legislation of the

EUROPEAN UNION. Actually as I understand it Queensland is proposing to have a newconstitution in place but what it seems to fail to understand is that this new constitution would besubject to any EUROPEAN UNION legislation that is in place and that would be in place in5future, where as the colonial Queensland constitution isnt.

Actually, since 1921 with the unconstitutional abolition of the Queensland Upper House not a

single piece of legislation passed thereafter was constitutionally valid because by the federation

the Colonies became States and by this were subject to all and any amendment of its Stateconstitutions would be only valid if approved by a State referendum. The abolition of the10

Queensland Upper House never was approved by a State Referendum and as such for

constitutional purposes the Queensland Upper House was never abolished. Meaning that any

laws purportedly enacted without having passed through the Queensland Upper House has no

constitutional meaning and is without legal force.It also means that the Queensland proposed new constitution, even if purportedly approved by15

the Queensland State electors would fail because it is not a proposed amendment of the

Queensland Constitution that has been passed through the Queensland Upper house and therefore

cannot be valid as a referendum.

.When Pauline Hanson and David Ettridge were imprisoned, I wrote to the then Premier of20

Queensland, Mr Peter Beattie on 1 September 2003 setting out why the judgment against Pauline

Hanson and David Attridge was legally defective. On 30 September 20-003 I published this

correspondence and relevant material in my book INSPECTOR-RIKATI on CITIZENSHIPand provided copies also to Pauline Hanson and her sister Judy Smith for the upcoming hearing

in the Queensland Criminal Court of Appeal. Subsequently the Supreme Court of Queensland25ruled precisely as I had set out in my book and set aside the convictions.

What I have discovered over the decades is that professors of law teaching at universities, etc,

have their title but in my view often havent got a clue what they are talking about. Because aperson has law degrees doesnt mean the person is a CONSTITUTIONALIST in fact generally

having a law degree means the person lacks any ability to be a CONSTITUTIONALIS!30.

Let me give a simple explanation;

The 1988 constitution commission ASSUMED that the Commonwealth had legislative powersas to CITIZENSHIP and each and every person who is to be come a member of the bar of aSupreme Court must have Australian citizenship. Well, fancy this there is no such thing as a35nationality Australian citizenship and any lawyer who does not understand and comprehend

this in my view should not practice law let alone teach law at any university because if one

doesnt even know once own constitutional standing then how can you teach others..

As Author of books in the INSPECTOR-RIKATI series on certain constitutional and other40

legal issues I published numerous books about this and even more proved in court I knew what Iam talking about as on 19 July 2006 after a 5 year epic legal battle between the Commonwealth

of Australia and myself I defeated the Commonwealth of Australia comprehensively and not asingle Attorney-General had challenged my numerous submissions based on constitutional

issues.45

.

Constitutionally Australian citizenship is derived AUTOMATICALLY from havingobtained State citizenship and anyone not understanding this should not practice law!.

Anyhow, s.128 of the constitution provides referendum powers but only to amend the 12850

sections of the constitution and no more and cannot amend the pre-amble or the British Crown

application to the commonwealth of Australia and so neither interfere with Australians being

British nationals under the British Crown.


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.

Any referendum power is limited to what is constitutionally permissible. Therefore a REPUBLIC

referendum was utter and sheer nonsense.

.Any referendum to purport to amend the pre-amble is also utter and sheer nonsense.5

.

As the Framers of the constitution made clear no State or Federal parliament could amend its

own constitution but States could only amend their constitution by within s.123 submitting for

the approval of State electors a proposed amendment. Queensland failed to do so with thepurported abolition of its Upper house and within s.41 of the (federal) constitution not a single10

Queensland has franchise in federal elections if it only has a single House of Parliament.

.

Section 41 also has embedded in its that for example any Aboriginal who obtained State

citizenship by this AUTOMATICALLY obtained Commonwealth citizenship also known asAustralian citizenship. Now translate this back as to Aboriginals voting in federal elections and15

you find that the records show that Aboriginals who had state franchise voted in federal elections

also in 1901.

.

As such the 1967 referendum to amend s.51(xxvi) as to include Aboriginals purportedly so theycould obtain Commonwealth franchise was a con-job and indeed in the 1950s the then Federal20

government was advised that amending s51(xxvi) would not be the proper way to follow rather

then a new subsection needed to be implemented as to avoid the baggage associated with

s51(xxvi) as it then stood for..

S.51(xxvi) purpose was to DISCRIMINATE against what the Framers of the Constitution25held to be inferior coloured races and the Framers of the Constitution made clear thatAboriginals were to be equal to other Australians (s127 purpose must not be misunderstood in

that regard) The 1967 referendum was not for so far I understand it about changing this sectionas to how it applies to inferior coloured races such as to discriminate against Chines, Japanese,

etc. As I understand it the purpose of the referendum of 1967 was to provide special powers to30the Commonwealth of Australia to give it legislative powers to advance Aboriginals. Clearly

s.51(xxvi) could not be the vehicle for this because it was a section that was to legislate adverse

to a inferior coloured race and not to legislate against the general community!The amendment of s.51(xxvi) therefore could not provide for the Commonwealth to provide

legislation for Aboriginals to benefit Aboriginals because a section of the constitution must be35

interpreted having the same meaning to all races referred to and cannot have one meaning for one

race while the opposite meaning for another race. As the referendum didnt propose to amend

s.51(xxvi) as to have a different application to all and any race, not being Aboriginals, thenclearly the amendment of s.51(xxvi) must be deemed to have been that it only permitted the

Commonwealth of Australia to legislate adversely to aboriginals and not to their benefits.40

Neither can it be deemed that as I understood a former judge of the High Court of Australiapromoted that this section of race applies to minority groups such as homosexuals as this

simply was never as such intended as it was limited to inferior coloured race.More over, when for example considering the Northern Territory Intervention, this is

unconstitutional in that the Framers of the Constitution made clear that any legislation within45

s.51(xxvi) must be applied to all persons of that race. Meaning that any legislation that was to

remove ownership of land to Northern Territory Aboriginals equally then must be applied to

other Aboriginals even if it was say a doctor or lawyer living in Melbourne, as then their propertyrights also would be gone.

.50

While professor Owens reportedly suggest a certain body, I have canvassed this for many years

already to be known as the OFFICE-OF-THE-GUARDIAN, a constitutional body that advises


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the Government, the People, the Courts of the true meaning and application of constitutional

provisions.

.

Fancy to have politicians dealing with a constitutional amendment they havent got a clue how itapplies. Fancy having a group of people getting together to consider the proposed amendment of5

the constitution without having any extensive knowledge as to the real existing constitution as to

its meaning and application.

.

I could state constitutional powers within each House of Parliament not even the clerk of theHouse of Representatives or Senate ever knew existed and is not mentioned in any standing10

orders even so it is embedded in the constitution!

.

The issue therefore is that you cannot have some temporary advise committee that may lack any

understanding about the true meaning and application of the constitution but you need a longterm permanent body.15

.

In 1923 the High Court of Australia made a decision regarding the rights of the Commonwealth

and how it applies in relation to s.85, etc.

.As I have published already the High Court of Australia simply misconceived what is20

constitutionally applicable as it did in the Pochi case, the Sue v Hill case, the MABO case, the

Sykes v Cleary case and not to forget the 14 November 2006 so called WorkChoices case, as

well as many other cases.We even had a judge of the High Court of Australia refusing to hand down a decision upon the

basis he didnt know the constitutional issue concerned!25

.

What is therefore needed is a permanent body directly under the governor-General, as to avoid

any political influence, and that this body provides anyone with the same advise FREE OFCHARGE. Meaning that if the High Court of Australia has a constitutional issue to be decided it

can draw upon the extensive information it can obtain from the OFFICE-OF-THE-30GUARDIAN and then has its own legal research to perhaps further check the details but at leastnever again will a judge of the High Court of Australia refuse to hand down a judgment. As such

the need for a permanent body exists, as constitutional matters are ongoing dealt with by thecourts.

.35

Because as I so often proved in court that lawyers involved in cases do not even realise the true

legal meaning of legislation let alone constitutional provisions and so embark upon a litigation

trial that could from onset have been avoided it would be utter and sheer nonsense to claim thatonly lawyers could be in the OFFICE-OF-THE-GUARDIAN as there is a need to haveordinary people who use common sense to be involved. I have published about this in the past40

extensively. As is for example in a country like Iran, any PROPOSED legislation, not justproposed amendments to the constitution, should be checked for its constitutional validity. This

however the Commonwealth of Australia has failed to do since federation and so also the States.For example all this nonsense about s.51(xxxvii) reference of legislative powers is misconceived

and ill-conceived and no one seems to be aware that any reference of legislative powers within45

s.51(xxvii) actually is to be approved by way of s.123 State referendum to become valid. Being

any proposed amendment of the constitution and/or any proposed legislation and/or amendment

of legislation it all should be appropriately checked for constitutional validity and not thatMembers of Parliament vote on a bill and/or proposed amendment of the constitution not having

a clue if in fact this is constitutionally permissible and in the process may cause the enactment of50

legislation and/or an amendment of the constitution being submitted for a referendum that the

electors are so to say kept in the dark about it being unconstitutional. Considering the huge cost

associate with referendums and/or with the issue of legislation I view that the cost of maintaining


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14-4-2010 Page 18PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the websiteH // h l hl k ill b h l i b i d il h l hl k @ h l hl k

an OFFICE-OF-THE-GUARDIAN would be a lot cheaper in that regard also. I have in the pastpublished how this OFFICE-OF-THE-GUARDIAN could operate free of political bias..

Lets refer back to the case I mentioned above where I represented a man who had been draggedthrough a total of 16 hearings and yet, as I proved there never even any jurisdiction existed from5

onset. I found that the mans objections upon constitutional grounds were blatantly disregarded

and by this taxpayers end up feeding a protracted VEXATIOUS litigation that could have beenavoided from onset.

.This submission has been kept very brief (well for me as ordinary I cover hundreds of pages with10

set outs) but must not be held to refer to all relevant issues but merely seeks to indicate that a

permanent body such as the OFFICE-OF-THE-GUARDIAN should be in place..

Awaiting your response, G. H. Schorel-HlavkaEND QUOTE 7-4-2010 SUBMISSION15

.

Constitutionally the obligation is now for the Commonwealth to provide total funding regarding

hospital and other medical services as the constitution provided for this and then the States can

attend to organising what they need to do as to how to run hospitals.It should be understood that ultimately being it State and/or Federal funding the taxpayers are20

paying for it. As such the Commonwealth of Australia should not do any grandstanding as if it is

their money because it is all monies belonging to the taxpayers!

At time of federation the Framers of the Constitution had some concern that the Commonwealthof Australia would be seeking to blackmail some States into submission but in the end it was

held that the constitution protects them from such kind of terrorism, as they held it to be.25

The Commonwealth doesnt require any referendum to fund hospitals or other medical services

because it already has this power and there is no need for the Commonwealth to take over

hospitals because then it would interfere with internal State matters..

In my view the Commonwealth should fund States as per head of citizens and considering30the influx of interstate residents it should be also providing for a ratio per patient payment.As for people residing in small communities, not just Aboriginals, then the funding should be as

to reflecting the difficulties in those areas so as to seek to assure that people living in remoteareas/small townships are not deprived of proper health care.

The states should also implement a ratio per doctors so that we do not have too many doctors35

practicing in clusters and other areas are without. Likewise the Commonwealth can assist with

restricting new arrivals such as doctors to spend at least 3 years in country areas to get

acquainted to Australia and its people, etc. By this encouraging doctors perhaps to stay and settlein those areas. There are numerous ways the heath issues can be appropriately addressed if just

politicians for once really did consider the rights of patients, including invalid and age care40

pensioners above their own self interest for a grab of power.This correspondence is not intended and neither must be perceived to refer to all relevantmatters..

MAY JUSTICE ALWAYS PREVAIL45.

Our name is our motto!

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

100414-kevin rudd pm - re health issues - referendum issues

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