chapter 0003 civil – political & religious liberties

8/14/2019 Chapter 0003 CIVIL POLITICAL & RELIGIOUS LIBERTIES

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Chapter 0003 Page 1INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD

A 1 st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, by fax 0011-

61-3-94577209 or E-mail [email protected] See also www.schorel-hlavka.com

Chapter 0003 CIVIL POLITICAL & RELIGIOUS LIBERTIES.* Gerrit, what are the limits of legislative powers really?.**#** INSPECTOR-RIKATI, as I did set in the previous Chapter 0002 Who can represent aparty in legal proceedings lawyers are not specifically trained as CONSTITUTIONALISTS andas result even when they study the constitution and the creation of it they misconceive the truemeaning and application of it. For example the Framers of the Constitution made clear:.

HANSARD 17-3-1898Constitution Convention DebatesQUOTE

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

.

As a CONSTITUTIONALIST I have researched extensively certain constitutional issues and havenot been confronted between conflicts of legal studies versus constitutional meanings andapplications and therefore understand and comprehend the true meaning and application ofconstitutional provisions and limitations..

Hansard 8-2-1898Constitution Convention Debates

QUOTE

Mr. SYMON.-Yes. Mr. Wise asked why should New South Wales or Victoria-to take a

case which is extremely unlikely to occur-prohibit a citizen of the neighbouring colony fromacquiring property in the legislating colony, or only allow him to acquire it under adverseconditions? But why not? The whole control of the lands of the state is left in that state. Thestate can impose what conditions it pleases-conditions of residence, or anything else-and

I am not aware that a state has surrendered the control of the particular administration

of its own lands, or of anything that is left to it for the exercise of its power and the

administration of its affairs.END QUOTE

.

As for s.51 (xxix) external affairs of The Commonwealth of Australi a Constitution Act 1900(UK) it is very clear that such powers of making treaties , etc was limited to the powers alreadyelsewhere provided for in the constitution to the commonwealth. Hence, the 1992 Tasmania Damcase was in my view ill conceived because the commonwealth couldnt create legislative powerswhere it had none and as the Framers of the Constitution stated:.

HANSARD 24-1-1898Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention)

QUOTE

Mr. BARTON.-It would be the same as federalizing our lands.Mr. OCONNOR.-It would, because the value of the land is inextricably mixed up with

the value of the water supply to it.Mr. HIGGINS.-All conditions would apply to lands; all circumstances affect their value.END QUOTE.

The Constitution Convention Debates makes clear that WATERthat falls on a property belongs to

the owner of that property. However, the usage of the WATERmust be in such manner that it doesnot interfere with the rights of others. More over, that by federation. it means that riparian rights areapplicable.I understand that the Commonwealth with agreement of the States has discontinued the Inter-StateCommission, but no such powers existed for the Commonwealth and the State to do so and hence

the Commonwealth of Australia itself is clearly at fault in that regard also, as are the States.


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QUOTE

Commission obligatory.END QUOTE

AndQUOTE

Mr. HIGGINS.-But the Inter-State Commission must be absolutely independent ofParliament.

END QUOTE

.

What has eventuated however in passing of time is that the Prime minister, albeit not mentioned inthe written constitution still was all along intended by the Framers of the Constitution to be anadvisor to the governor-General has cause the creation of the office of the prime minister and thenallocated funds which is used to so to say pork barrelling for political purposes projects in defianceof constitutional limitations and to circumvent s.101 Inter-State Commission involvement ands

CoAG (Council of Australian Governments) is a clear example of this corruption of powers.Still, as the Framers of the Constitution made clear that a dispute about WATER would be for theHigh Court of Australia to determine judicially! This, as it is a REPARIAN RIGHT issue that is a

judicial issue. However the States refuse to involve the High Court of Australia so far because eachmay fear that the judicial decision may remove their (misplaced) power play powers.

HANSARD 11-3-1898Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention)

QUOTE

Mr. HIGGINS.-It must be a valid Commonwealth law.

Mr. REID.-Yes, but a valid Commonwealth law may in the interests of navigation

prevent irrigation. It may absolutely prevent any water conservation. I do not suppose

such a thing would ever happen, but I only refer to it by way of illustration. If it did

happen the aggrieved state, on which a terrible injury would be inflicted, has to appearbefore the High Court to complain of this. It would be told, it is true this is an

abominable wrong, and we only wish we had power to redress it; but this Act

deliberately states that when the federal law comes into collision with a state law, passedin the exercise of the state's sovereign powers, still that law must go down, just as if itwas an interference with a subject handed over to the Commonwealth. There is no

distinction between the two cases. That is a very dangerous position of supremacy in

which to put the Commonwealth. It practically has this effect, in that very wide and

nebulous area where the sovereign, [start page 2270] rights of the state and the rights we

wish to hand over to the Commonwealth come into collision, without any sort ofconsideration to the rights or the wrongs, the law of the states as to its sovereign powers

must go down. If we intend that, well and good. But if it is inserted in the Constitution I

can conceive a very great handle being made of it by those who would say that we have

to leave independence to the states in connexion with every subject not handed over to

the Commonwealth, and that, while affecting to do that, we practically put the states ingreat danger, because their laws made within their sovereign powers may happen to

come into collision with the Commonwealth law.

Mr. OCONNOR.-Would not that contention be involved in the interpretation of clause99?

Mr. REID.-That is where it seems to me the difficulty would come in. In a clausebefore 101, which in my copy of the Bill appears as clause 103, it saves the Constitution

of the states in respect of all matters not handed over to the Commonwealth.END QUOTE


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.

Obviously you need properly trained judges at the High Court of Australia to be able to competentlyadjudicate on constitutional matters and not as previously occurred a judge refusing to hand down adecision upon the basis that he didnt know the constitutional issue and by this the appeal was lost 3

judges for and 3 judges against the appeal..HANSARD 31-1-1898Constitution Convention Debates

QUOTE

Mr. SOLOMON.- We shall not only look to the Federal Judiciary for the protection ofour interests, but also for the just interpretation of the Constitution:END QUOTE.

Hansard 20-4-1897Constitution Convention DebatesQUOTE

Mr. BARTON: I do not think it is a good thing under any circumstances that a judge

under a Federal Constitution, at any rate, should have anything to hope for fromParliament or Government.

Mr. KINGSTON: Hear, hear.

Mr. BARTON: Where you have a sovereign Parliament, and the judge is merely theinterpreter of the laws as they arise, and not the guardian of a Constitution in the samesense as a federal judge is, the same circumstances remain in part; but where you willhave a tribunal constantly charged with the maintenance of the Constitution against theinroads which may be attempted to be made upon it by Parliament, then it is essential that nojudge shall have any temptation to act upon an unexpected weakness-for we do not know

exactly what they are when appointed-which may result, whether consciously or not, in

biasing his decisions in favor of movements made by the Parliament which might bedangerous to the Constitution itself.

END QUOTE

.

The constitution provides specific legislative powers and again EXTERNAL AFFAIRS can onlybe used in relation to this and anything else beyond it cannot somehow create additional legislativepowers. Fancy the Commonwealth of Australia to make a treaty with some country that everyAustralian shall display in its backyard a flag of the USA! Now, the Commonwealth of Australia

may pursue such a treaty but reality is this doesnt give the Commonwealth of Australia thenadditional legislative powers to enforce this kind of nonsense as the Framers of the Constitutionmade clear:.Hansard2-3-1898 Constitution Convention Debates;

QUOTE Dr. QUICK.-

The Constitution empowers the Federal Parliament to deal with certain external affairs,among which would probably be the right to negotiate for commercial treaties with foreigncountries, 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 theFederal Government, in the exercise of its power, [start page 1753] could only act for

and on behalf of its citizens.END QUOTE.

As such, unless the Commonwealth already had existing legislative powers to legislate and by thiscan enforce any treaty it enters into by legislation the treaties themselves cannot create legislative

powers and for this the Franklin Dam issue in the 1992 Tasmania Dam case was clearly illconceived.


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.HANSARD 8-2-1898 Constitution Convention Debates

QUOTE

Mr. HIGGINS.-I did not say that it took place under this clause, and the honorable memberis quite right in saying that it took place under the next clause; but I am trying to point outthat laws would be valid if they had one motive, while they would be invalid if they had

another motive.END QUOTE.

HANSARD 17-2-1898 Constitution Convention DebatesQUOTE Mr. OCONNOR.-

We must remember that in any legislation of the Commonwealth we are dealing with theConstitution. Our own Parliaments do as they think fit almost within any limits. In this casethe Constitution will be above Parliament, and Parliament will have to conform to it.

END QUOTE

.HANSARD 1-3-1898 Constitution Convention Debates

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.


Mr. GLYNN.-I think they would, because it is fixed in the Constitution. There is no specialcourt, but the general courts would undoubtedly protect the states. What Mr. Isaacs seeks todo is to prevent the question of ultra vires arising after a law has been passed.

[start page 2004]

Mr. ISAACS.-No. If it is ultra viresof the Constitution it would, of course, be invalid.

END QUOTE

.Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National AustralasianConvention)

QUOTE

" I say it ought to be upset at once and at the very earliest point. As soon as ever you find

it has gone beyond the bounds you ought to say-"This thing is illegal." Otherwise you

will leave to the Ministry of the day these powers of which you are so careful, giving

them to a majority of the States and to a majority of the people. You would allow theMinistry of the day to exercise a suspending power as to whether it would enforce a law

or not, which is most dangerous.END QUOTE.

HANSARD 9-2-1898Constitution Convention Debates

QUOTE

Mr. HIGGINS.-No, because the Constitution is not passed by the Parliament.END QUOTE

.


Mr. CARRUTHERS (New South Wales).-It is worth while considering the stages that aproposed law has to go through, and the opportunity afforded to a member of either House ora member of the Executive to call attention to any infraction or infringement of the


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Constitution. It does not require a majority of the members of the House of Representatives toinsist that the Constitution shall be obeyed in the matter of procedure; it only requires onesolitary member to rise to a point of order, and the Speaker has to give a legalinterpretation of the rules of procedure. It only requires one member of the Senate to callthe attention of the President to the fact that a Bill is introduced contrary to the

Constitution for that proposed law to be ruled out of order. It does not require a

majority of the states to insist that the Constitution shall be obeyed, because a majorityof the states cannot by resolution infringe the Constitution. Neither House could pass the

standing order which would give the majority power to dissent from the Speaker's orPresident's ruling. The standing orders only confer certain explicit power. They give no powerto either House to pass an order which would enable its members to amend the Constitution.

END QUOTE.

Much is argued about the Sue v Hi ll issue and that the States referred powers to the commonwealthand that by this British subjects are aliens, etc, but it must be clear that as set out below not only areAustralians still British nationals and are so because of being born in the realm of the Queen

(http://www.geocities.com/englishreports/77ER377.html Calvin's Case 7 Coke Report 1a, 77 ER377) but more over the States cannot even amend their own constitutions without a State

Referendum by the State electors to approve of this. As such, the application of s.51.xxxvii) canonly eventuate is the State before referring legislative powers had already the approval of Stateelectors by State referendum to do so. This is something I understand the High Court of Australia

never considered appropriately. What this also means is that the purported Australia Act came aboutin an unconstitutional manner and the British version neither was constitutionally valid as it reliesupon the validity of the Westminster Act which was actually not applicable to the Commonwealthof Australia, regardless the British parliament intended to do so, because it applies as if the

Commonwealth of Australia was a DOMINION which clearly the Commonwealth of Australianever was or is..


Mr. SYMON ( South Australia ).-In the preamble honorable members will find that what we desire to do is to unite in oneindissoluble Federal Commonwealth -that is the political Union-"under the Crown of theUnited Kingdom of Great Britain and Ireland , and under the Constitution herebyestablished." Honorable members will therefore see that the application of the wordCommonwealth 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 tocreate under that Union . The second part of the preamble goes on to say that it is expedient tomake 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.END QUOTE

.Hansard 2-3-1898Constitution Convention DebatesQUOTE Mr. BARTON.

If we are going to give the Federal Parliament power to legislate as it pleases with regard

to Commonwealth citizenship, not having defined it, we may be enabling the Parliament

to pass legislation that would really defeat all the principles inserted elsewhere in theConstitution, and, in fact, to play ducks and drakes with it. That is not what is meant by

the term "Trust the Federal Parliament."


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END QUOTE.


Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that weare all alike subjects of the British Crown.

END QUOTE.HANSARD 17-3-1898 Constitution Convention Debates

QUOTEMr. BARTON.- Of course it will be argued that this Constitution will have been made

by the Parliament of the United Kingdom. That will be true in one sense, but not true in

effect, because the provisions of this Constitution, the principles which it embodies, and

the details of enactment by which those principles are enforced, will all have been the

work of Australians.END QUOTE.


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 powerto take away a portion of this dual citizenship, with which the honorable and learned member(Dr. Quick) has so eloquently dealt? If that is the case, what this Convention is asked to do is

to hand over to the Federal Parliament the power, whether exercised or not, of taking awayfrom us that citizenship in the Commonwealth which we acquire by joining the Union. I amnot going to put that in the power of any one, and if it is put in the power of the FederalParliament, then I should feel that it was a very serious blot on the Constitution, and a verystrong reason why it should not be accepted. It is not a lawyers' question ; it is a question ofwhether 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 ordiminished 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 notprepared to trust the Federal Parliament or anybody to take away that which is a leading

inducement for joining the Union.

END QUOTE

.


Mr. SYMON (South Australia).-I think the honorable member (Mr. Wise) has expanded thespirit of federation far beyond anything any of us has hitherto contemplated. He has enlarged,with great emphasis, on the necessity of establishing and securing one citizenship. Now, the

whole purpose of this Constitution is to secure a dual citizenship. That is the very essenceof a federal system. We have debated that matter again and again. We are not here for

unification, but for federation, and the dual citizenship must be recognised as lying at the verybasis of this Constitution.

END QUOTE

.In Macleod Lord Halsbury L.C. quoted (at p 458) the remarks of Parke B. in Jefferys v. Boosey (at p 926 of HLC (p

725 of ER)):QUOTE

(T)he Legislature has no power over any persons except its own subjects, that is, personsnatural-born subjects, or resident, or whilst they are within the limits of the Kingdom.


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END QUOTE.

It must be clear that the terminology used by the Framers of the Constitution are; British

subject, to make persons subjects of the British Empire., with the consent of the Imperialauthority, What is meant is a dual citizenship in Mr. Trenwith and myself. That is to say, Iam a citizen of the state and I am also a citizen of the Commonwealth; that is the dual

citizenship., we are all alike subjects of the British Crown. .


Mr. DIBBS: The hon. member proposed to take from us, as British subjects, thechartered right which we possess of appeal to the Crown.

END QUOTE

.Hansard 2-3-1898Constitution Convention DebatesQUOTE

Mr. SYMON.-Very likely not. What I want to know is, if there is anybody who will comeunder the operation of the law, so as to be a citizen of the Commonwealth, who would notalso be entitled to be a citizen of the state? There ought to be no opportunity for such

discrimination as would allow a section of a state to remain outside the pale of theCommonwealth, except with regard to legislation as to aliens. Dual citizenship exists, but itis not dual citizenship of persons, it is dual citizenship in each person. There may be twomen-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 ismeant 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. Thatdoes not affect the operation of this clause at all. But if we introduce this clause, it is open tothe whole of the powerful criticism of Mr. O'Connor and those who say that it is putting onthe face of the Constitution an unnecessary provision, and one which we do not expect will beexercised adversely or improperly, and, therefore, it is much better to be left out. Let us, indealing 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 bea citizen of the Commonwealth. I do not want to place in the hands of theCommonwealth 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 anticipatesuch a thing, but the Commonwealth Parliament might say that nobody possessed of less than1,000 a year should be a citizen of the Federation. You are putting that power in the hands ofParliament.

Mr. HIGGINS.-Why not?

Mr. SYMON.-I would not put such a power in the hands of any Parliament. We must rest

this Constitution on a foundation that we understand, and we mean that every citizen of

a state shall be a citizen of the Commonwealth, and that the Commonwealth shall have

no right to withdraw, qualify, or restrict those rights of citizenship, except with regard toone particular set of people who are subject to disabilities, as aliens, and so on.

END QUOTE

.

The High Court of Australia is bound by the terms of the constitution and has no constitutionalpowers to purport to adjudicate as it did in Sue v H ill and the Framers of the Constitution made thisvery clear also that neither the parliament, any parliament, or the Courts were above the


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constitution. As the judges were all admitted to the Bar pledging allegiance to the British Crownand were sworn in to their office likewise then they were in no position to claim some Queen ofAustralia as the Commonwealth of Australia clearly never was nor is a Monarchy but aPOLITICAL UNION.

http://www.geocities.com/englishreports/77ER377.htmlQUOTE Calvin's Case 7 Coke Report 1a, 77 ER 377

4. And as to the fourth, it is less than a dream of a shadow, or a shadow of a dream: for it hath

been often said, natural legitimation respecteth actual obedience to the sovereign at the timeof 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 hewas alien at the time of his birth: so albeit the kingdoms (which Almighty God of his infinitegoodness and mercy divert) should by descent be divided, and governed by several Kings; yetit was resolved, that all those that were born under one natural 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 naturalsubject at the time of his birth, become an alien by such a matter ex post facto.

END QUOTE Calvin's Case 7 Coke Report 1a, 77 ER 377.

To argue that somehow mysteriously peoples allegiances changed over time from one Queen toanother is to hold that all we need is the High Court of Australia to declare we are all now under theQueen of Sheba and of we all go shipped out being aliens..Hansard 17-3-1898Constitution Convention Debates

QUOTE Mr. BARTON.-

Providing, as this Constitution does, for a free people to elect a free Parliament-giving

that people through their Parliament the power of the purse-laying at their mercy from

day to day the existence of any Ministry which dares by corruption, or drifts through

ignorance into, the commission of any act which is unfavorable to the people having thissecurity, it must in its very essence be a free Constitution. Whatever any one may say to

the contrary that is secured in the very way in which the freedom of the British

Constitution is secured. It is secured by vesting in the people, through their

representatives, the power of the purse, and I venture [start page 2477] to say there is no

other way of securing absolute freedom to a people than that, unless you make adifferent kind of Executive than that which we contemplate, and then overload your

Constitution with legislative provisions to protect the citizen from interference. Under

this Constitution he is saved from every kind of interference. Under this Constitution he

has his voice not only in the, daily government of the country, but in the daily

determination of the question of whom is the Government to consist. There is the

guarantee of freedom in this Constitution. There is the guarantee which none of us havesought to remove, but every one has sought to strengthen. How we or our work can be

accused of not providing for the popular liberty is something which I hope the critics will

now venture to explain, and I think I have made their work difficult for them. Having

provided in that way for a free Constitution, we have provided for an Executive which ischarged with the duty of maintaining the provisions of that Constitution; and, therefore,

it can only act as the agents of the people. We have provided for a Judiciary, which will

determine questions arising under this Constitution, and with all other questions which

should be dealt with by a Federal Judiciary and it will also be a High Court of Appealfor 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


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will of the people, which is the just result of their freedom: thirdly , that the Constitutionshall not, nor shall any of its provisions, be twisted or perverted, inasmuch as a courtappointed by their own Executive, but acting independently, is to decide what is a perversionof its provisions? We can have every faith in the constitution of that tribunal. It is appointed asthe arbiter of the Constitution. It is appointed not to be above the Constitution, for nocitizen is above it, but under it; but it is appointed for the purpose of saying that those

who are the instruments of the Constitution-the Government and the Parliament of the

day-shall not become the masters of those whom, as to the Constitution, they are boundto serve. What I mean is this: That if you, after making a Constitution of this kind,

enable any Government or any Parliament to twist or infringe its provisions, then by

slow degrees you may have that Constitution-if not altered in terms-so whittled away in

operation that the guarantees of freedom which it gives your people will not be

maintained; and so, in the highest sense, the court you are creating here, which is to bethe final interpreter of that Constitution, will be such a tribunal as will preserve the

popular liberty in all these regards, and will prevent, under any pretext of constitutional

action, the Commonwealth from dominating the states, or the states from usurping the

sphere of the Commonwealth. Having provided for all these things, I think this

Convention has done well.END QUOTE

.

The High Court of Australia simply has no judicial powers to declare something that denies allnatural born Australians of their birthrights to be British nationals known as Australians. Neither tointerfere with the naturalization of aliens to be British nationals as the commonwealth could onlynaturalise upon the authority of the British Parliament. As such to change the application of this theBritish Parliament has to enact an amendment constitution Act to amend The Commonwealth of

Australia Constitution Act 1900(UK) but then had the problem that this could not be successful inany event because s.128 only permits amendment of the constitution by the electors themselves!.


Mr. HOLDER: We want something which shall have two parts, which shall be democraticin the fact that it is based on the people's will, and that in it every personal unit of the

population shall be recognised and his individuality preserved, and that, on the other hand,shall be a true Federation, in that each State unit shall also have its individuality preserved andits independence assured. I do not think we can afford to dispense with either of these two

things. We cannot afford to dispense with the guarantee of the personal individual rights ofevery citizen of the Commonwealth, nor, on the other hand, can we afford to dispense withthe individual or separate rights or interests of each of the separate States-if my hon. friendMr. O'Connor prefers that term. We cannot neglect to provide for their due recognition. Thenext principle I shall lay down is this: That in dealing with this federal authority we shouldconfer on it no powers which it cannot exercise more wisely and well and effectively than

the States can exercise those powers.I would even go a step further, and lay down as the principle which should govern ourconduct: To the States all that is local and relating to one State, to the Federal authority all thatis national and inter-State. I wonder whether I can secure the absolute adherence, no matter

where it may lead us, of a majority of this Convention to that principle: To the Stateeverything that is local and relating to one State, to the Federal power everything that isnational and of inter-State importance. I pass from these two general principles to a discussionof the only other preliminary I shall have to touch, and that is the question of the appointmentof the representative of the British Crown in the person of the Governor-General. I do not take

it that the words of the Enabling Act requiring us to frame a Constitution for a Federation


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"under the Crown" bind us in the matter of whether or not we shall elect our own Governor-General, because I take it that the legal bonds which bind us to the mother-country, tothe great British Empire, are chiefly, first the right of veto which the Imperial authoritieshave over any Acts our local Legislature may pass, and which the Federal Legislature may

pass, and next the right of the Imperial Legislature at any time to pass legislation which mayaffect us, or which may revoke any legislation affecting us.

END QUOTE.


Mr. WISE.-If the Federal Parliament chose to legislate upon, say, the education question-and the Constitution gives it no power to legislate in regard to that question-the Ministers forthe time being in each state might say-"We are favorable to this law, because we shall get100,000 a year, or so much a year, from the Federal Government as a subsidy for ourschools," and thus they might wink at a violation of the Constitution , while no one couldcomplain. If this is to be allowed, why should we have these elaborate provisions for theamendment of the Constitution? Why should we not say that the Constitution may beamended in any way that the Ministries of the several colonies may unanimously agree?

Why have this provision for a referendum? Why consult the people at all? Why not

leave this matter to the Ministers of the day? But the proposal has a more serious aspect,and for that reason only I will ask permission to occupy a few minutes in discussing it.

END QUOTE.

The Hansard records are very critical to the proper interpretation of the constitution as to the trueintentions of the Framers of the Constitution and judges simply lack the time to extensively researchthis albeit this is no excuse as after all they take on the job and should then be prepared to research

it appropriately..Hansard 16-3-1898Constitution Convention Debates

QUOTE

Mr. BARTON (New South Wales).-The Drafting Committee could not interpret theintentions 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.END QUOTE

.


QUOTE Sir EDWARD BRADDON.-

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 thefoundation of lawsuits of a most extensive nature, which will harass the people of UnitedAustralia and create dissatisfaction with our work, it must be evident that too much care

has not been exercised.END QUOTE.


QUOTE

Mr. OCONNOR(New South Wales).-The honorable and learned member (Mr. Isaacs) is Ithink correct in the history of this clause that he has given, and this is [start page 672] one ofthose instances which should make us very careful of following too slavishly the provisions of


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the United States Constitution, or any other Constitution. No doubt in putting together thedraft of this Bill, those who were responsible for doing so used the material they found inevery Constitution before it, and probably they felt that they would be incurring a great deal ofresponsibility in leaving out provisions which might be in the least degree applicable. But it isfor us to consider, looking at the history and reasons for these provisions in the Constitution ofthe United States, whether they are in any way applicable; and I quite agree with myhonorable and learned friend (Mr. Carruthers) that we should be very careful of every wordthat we put in this Constitution, and that we should have no word in it which we do not see

some reason for. Because there can be no question that in time to come, when thisConstitution has to be interpreted, every word will be weighed and an interpretation given toit; and by the use now of what I may describe as idle words which we have no use for, we may

be giving a direction to the Constitution which none of us now contemplate. Therefore, it isincumbent upon us to see that there is some reason forevery clause and every word that goesinto this Constitution.

END QUOTE

.Hansard 2-3-1898Constitution Convention Debates

QUOTE Mr. BARTON.

If we are going to give the Federal Parliament power to legislate as it pleases with regard

to Commonwealth citizenship, not having defined it, we may be enabling the Parliament

to pass legislation that would really defeat all the principles inserted elsewhere in the

Constitution, and, in fact, to play ducks and drakes with it. That is not what is meant bythe term "Trust the Federal Parliament."

END QUOTE

.Hansard 8-2-1898Constitution Convention Debates

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


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 power

over us.END QUOTE.

HANSARD 1-3-1898Constitution Convention DebatesQUOTE 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 QUOTEAnd

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

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 is

necessary or incidental to a power given.END QUOTE.

Hansard 16-2-1898 Constitution Convention Debates


12/37





QUOTE

start page 1020] I think that we ought to be satisfied on these points, and satisfied that 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.

Hansard 6-3-1891Constitution 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 authority above

and beyond the ordinary legislative bodies , whether federal or state legislatures, existing

under the constitution.

END QUOTEAnd

Hansard 6-3-1891Constitution Convention DebatesQUOTE 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. They are

the complete legislative power of the whole of these colonies, and they shall be so. From[start page 106] them will rise, first of all, the federal constitution which we are proposing toestablish, and in the next place will come the legislative powers of the several colonies. Thepeople 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 ministerswill be practically vested in them. They will exercise the sovereignty of the states, they will

be charged with the full power and dignity of the state, and it is from them that we must seekthe giving to each of those bodies that will be in existence concurrently the necessary powersfor their proper management and existence. Each assembly, each legislature, whether state

or federal existing under this constitution, will be as Dicey again says-a merelysubordinate law-making body whose laws will be valid, whilst within the authority

conferred upon it by the constitution, but invalid and unconstitutional if they go beyond

the limits of such authority.END QUOTEAnd


Dr. COCKBURN: I think we have nothing whatever to do with deciding the details ofthe state constitutions. On the other hand, I think it appertains to the functions of this

Convention to decide that the power of framing a constitution shall be in the hands of the

several states. At present the legislatures of the various colonies can only be altered withthe consent of the Imperial Government. Is it intended that that shall remain? When wehave a federated Australasia, in which we have state legislatures and a federal legislature, is itintended that the state legislatures shall have the power of altering their constitutions at will or

not? From that point of view I think the proposition put forward by the hon. member, SirGeorge Grey, is decidedly within the powers of the Convention, the power to lay down ageneral rule, without touching the details of any individual constitution, that the various statesshould have the power of framing their own constitutions according to the will of themajority of the people of those states.

END QUOTE


13/37





.

Again (RE Section 123);Hansard 18-3-1891Constitution Convention Debates

QUOTE Sir GEORGE GREY:

Provision should therefore be made in the federal constitution which will [start page 478]

enable the people of each state to adopt by the vote of the majority of voters, their own

form of state constitution.END QUOTE

Hence, for example the amended Victorian Constitution Act 1975never having been placed beforethe State electors as to be vetoed or approved is not constitutionally valid and like so amendedconstitutions such as in regard of the NSW purported 1902 Local Government or the Queensland1921 abolition of its Upper House. And again, the reference of legislative powers to theCommonwealth always includes an amendment of the State constitution because it is a transfer oflegislative powers and as such minimise the State constitutional powers and hence can only bevalidly exercised if the State first obtained approval by State referendum..Hansard 27-1-1898Constitution Convention Debates

QUOTE

Sir GEORGE TURNER.-Will you briefly restate the point?

Mr. DEAKIN.-My point is that by the requests of different colonies at different timesyou 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 shouldbe 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 the federal authority, and federallegislation 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 possible for it afterwards to revoke its reference.END QUOTE

.


Dr. QUICK (Victoria).-I think the point taken by my honorable friend (Mr. Deakin) is onewell worthy of the consideration of the Drafting Committee, and probably the difficulty towhich 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 tome 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 cannotafterwards be repealed or revoked by the State Parliaments-that is one position, and in thatcase, of course, the reference once made [start page 218] is a reference for all time, andcannot 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 consentof 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 aconstant state of change-no guarantee for continuity or permanence-in this class of laws, and


14/37





this might lead to a great deal of confusion and a most unsatisfactory state of things. Myprincipal objection to the provision is that it affords a free and easy method of amending theFederal 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 theFederal Constitution.

END QUOTE

.

You find that States dont have a clue how this applies as in the Commonwealth Powers (FamilyLaw---Children) Act 1986it states:QUOTE

. Termination of references. 4The Governor in Council may, at any time, by proclamation published in the GovernmentGazette, fix a day as the day on which the reference under this Act shall terminate.

END QUOTE

.

Clearly the State cannot terminate commonwealth legislative powers once enacted

Hansard 27-1-1898Constitution Convention DebatesQUOTE Dr. QUICK (Victoria).-

is a reference for all time, and cannot be revoked, so that to that extent it becomes anamendment of the states' Constitution,

END QUOTE

.

And then consider also;HANSARD 10-03-1891Constitution Convention Debates

QUOTE

Dr. COCKBURN: All our experience hitherto has been under the condition of

parliamentary sovereignty. Parliament has been the supreme body. But when we

embark on federation we throw parliamentary sovereignty overboard. Parliament is no

longer supreme. Our parliaments at present are not only legislative, but constituentbodies. They have not only the power of legislation, but the power of amending their

constitutions. That must disappear at once on the abolition of parliamentary

sovereignty. No parliament under a federation can be a constituent body; it will cease to

have the power of changing its constitution at its own will. Again, instead of parliament

being supreme, the parliaments of a federation are coordinate bodies-the main power issplit 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.QUOTE


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 stateinterests could arise except by the merest accident. It is, as the right hon. gentleman admitted,a grave defect in our constitution if we permit these questions to be left for all time to bedetermined in a purely states house, or by a state referendum, when those questions are not


15/37





state questions-when they ought to be decided, not on state lines, but on national lines, and bya national referendum.

END QUOTE.

It must therefore be clear that any purported reference of legislative powers from the states to theCommonwealth of Australia never validly was enacted where there was no prior State referendum

to authorize this, as each reference of legislative power effectively is an amendment of the Stateconstitution as it permanently removed a certain legislative power to which the reference oflegislative powers refer to. And more over the reference of legislative powers is limited to some butnot all states (As the Framers of the Constitution made clear during the debates) and therefore anyreference of legislative powers purportedly done by all States would be unconstitutional and

remains for this also without legal force..Hansard 17-4-1897 Constitution Convention Debates

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

.This too is a warning that whatever may be applicable in other countries, even in New Zealand andCanada because of having a different constitutional structure may not apply to the Commonwealthof Australia as it is merely as like the EUROPEAN UNION a POLITICAL UNION!.

In the next Chapter 0004 Commonwealth v State legislative powers - etc we deal with theissue of divided powers more extensively but lets not overlook Chapter 007A The GreatDeception in the publication of;.

INSPECTOR-RIKATI on IR WorkChoices legislationA book about the validity of the High Courts 14-11-2006 decision

ISBN 978-0-9751760-6-1 (Book-CD)978-0-9751760-7-8 (Book-B&W)978-0-9751760-8-5 (Book-Colour)

.QUOTE Chapter 007A The Great Deception

Chapter 007A The Great Deception.

* Gary, The Great Deception by whom?

**#** INSPECTOR-RIKATI, just read the Chapter 034T of the book (published on 17-3-2007);

INSPECTOR-RIKATI on the battle SCHOREL-HLAVKA v BLACKSHIRTSFor the quest of JUSTICE, in different ways. Book on CD.

ISBN 978-0-9580569-4-6 was ISBN 0-9751760-4-3.

QUOTE Chapter 034T

Gary, The Great Deception?.

INSPECTOR-RIKATI, this document also sets out how the judges of the High Court ofAustralia are deceiving us as to the application of the Constitution! It is to be read in conjunction


16/37





with other documents such as Is our Constitution safe, The Constitution is a PERPETUALLEASE, etc.Anyhow, I quote below the document The Great Deception;.

The Great Deception

QUOTE

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.

In my 2-8-2003 correspondence, published previously in my book (30 September 2003);.

INSPECTOR-RIKATI on CITIZENSHIP

A book on CD about Australians unduly harmed.

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;.

QUOTEhttp://store.yahoo.com/4crests/magnacarta.html

When representatives of the young republic of the United States gathered to draft a constitution, they turned tothe legal system they knew and admired--English common law as evolved from Magna Carta. The conceptual

debt to the great charter is particularly 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

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

No freeman shall be taken, imprisoned, . . . or in any other way destroyed . . . except by the lawful judgment ofhis 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 MagnaCarta and English common law by 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 bya king to his subjects; the Constitution of the United States is the establishment of a government by and for "We

the People."END QUOTE

.

Magna CartaQUOTE

(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.

.(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..

(49) We will at once return all hostages and charters delivered up to us by Englishmen as security for peace orfor loyal service.


17/37





(51) As soon as peace is restored, we will remove from the kingdom all the foreign knights, bowmen, theirattendants, 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 we desire that they shall be enjoyedin their entirety, with lasting strength, for ever, we give and grant to the barons the following security:

END QUOTE.

It is clear that the above stated applies forever. 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;Transcri pt of H igh Court Appeal

Essenberg v The Queen B55/1999 (22 June 2000)IN THE HIGH COURT OF AUSTRALIA

QUOTE 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

Rights of 1688 are not documents binding on Australian legislatures in the way theConstitution is binding on those legislatures? Any legislature acting within the powers allottedto it by the Constitution is entitled to legislate in total disregard of the Magna Carta and theBill 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 which, Isuppose, 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 theUnited States Constitution are.

END QUOTE

.

Well, the US Supreme Court has (since the publication of my book on 30-9-2003) clearly ruled that

the Magna Charta is applicable to the US constitution. Now, lets see what the Framers of the

Constitutionstated during the Constitution Convention Debates;.


Mr. OCONNOR.-The amendment will insure proper administration of the laws, and affordtheir protection to every citizen.

Mr. SYMON.-That is insured already.

Mr. OCONNOR.-In what way?

Mr. SYMON.-Under the various state Constitutions.

Mr. OCONNOR.-Yes. We are now dealing with the prohibition against the alterationof 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 Constitution is carriedit will not be in the power of any state to pass a law to amend its Constitution to do that. It is adeclaration of liberty and freedom in our dealing with citizens of the Commonwealth. Notonly 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.

Mr. SYMON.-Have we not that under-Magna Charta.

Mr. OCONNOR.-There is nothing that would prevent a repeal of Magna Charta byany state if it chose to do so. Let us suppose that there were any particular class of


18/37





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 notnecessary to refer to.

Mr. SYMON.-Would it not require an amendment of the Constitution to repeal MagnaCharta?

Mr. OCONNOR.-What Constitution?

Mr. SYMON.-This Constitution. Do you thinkMagna Charta would be repealed by anAct of the Federal Parliament?

Mr. OCONNOR.-I do not think so, and I did not say so. But I say that, under theConstitution of the states, as we are dealing with the Constitution, a State might enactany 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 thesame 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.

END QUOTE

.HANSARD 1-3-1898Constitution Convention Debates

QUOTE

Mr. GLYNN.-I am now speaking of the English law. It has been somewhat modified in theStraits Settlements, and in one or two other parts of the empire, I believe, by giving a right ofaction 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 against theCrown, however, are almost as frequent as actions for breach of contract. In Canada a mansued the Crown for damages received in connexion with a railway accident, but he wasdebarred of remedy there, although he suffered serious injury, because of some defect in therailway laws not conceding this right. The position has been laid down in regard to the Queenin the case I have already mentioned, that-

Where the land, or goods, or money, of a subject have found their way into the possession ofthe 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 goodssupplied 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 justicecannot be denied, sold, or delayed. By this action, similar rights of action are given to thesubject against the Crown in cases in which the subject can maintain a claim against anothersubject.

END QUOTE

HANSARD 17-3-1898Constitution Convention DebatesQUOTE Mr. DEAKIN.-

In this Constitution, although much is written much remains unwritten,


19/37





END QUOTEAnd

QUOTE Mr. DEAKIN.-

What a charter of liberty is embraced within this Bill-of political liberty and religiousliberty-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 acharter of peace-ofpeace, order, and good government for the whole of the peoples

whom it will embrace and unite.

Mr. SYMON (South Australia).-I wish to say one word or two before we part. I do notintend to enter into any detailed examination of, or any elaborate apology for, the Constitutionwhich we have been engaged in framing. But, sir, no man can remain unmoved upon thismomentous occasion. We who are assembled in this Convention are about to commit tothe people of Australia a new charter of union and liberty; we are about to commit thisnew Magna Chartafor 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 QUOTEAgain;QUOTE

the Crown is bound to refer a petition of right to the courts for decision, because it is provided by Magna

Charta that justice cannot be denied, sold, or delayed.END QUOTE.

Therefore it must be clear that the Framers of the Constitutionheld that the Magna Charta appliedto the Constitutionand it is not for the judges to then seek to amend the Constitution by their own

judgment to deny this to be applicable..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;.

QUOTE Essenberg v The Queen B55/1999 (22 June 2000) HCA

GUMMOW J: Now these words, "for peace, order and good government" are words ofexpansion, 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 effectwhatever, and that is the doctrine of this Court. We do not make a decision as to whether thelaw is for the peace, for the order, for the good government. It is assumed that ifParliament makes it, it is, and the real question is, is it a law with the same respect to tradeand 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, forexample, is not "for peace, order and good government". It is, in effect, a parliamentaryexpression rather than a legal expression. It does not limit Parliament's power; it is said toexpand them.

MR ESSENBERG: I am not really sure I understand that.END QUOTE.

Now lets see what the Framers of the Constitutionstated, as set out more extensive in the documentfor the peace order and good government-1-Hansard.doc in Chapter 034O.

HANSARD 1-4-1891Constitution Convention Debates


20/37





QUOTE

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 theimperial 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, andconsidering 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 adoptthem.

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 GreatBritain?

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 limitcould possibly apply.

END QUOTE

AndQUOTE

Sir SAMUEL GRIFFITH: If the hon. gentleman will look at the bill he will see that theonly laws which can apply are laws for the peace, order, and good government of thecommonwealth.

END QUOTE


QUOTE Mr. BARTON:

That was the Convention which had, I think, to be called in consequence of the New Guinea

affair. Sir Samuel went on: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 goodgovernment of the Commonwealth, will apply to her on her voyage. For instance, if it wasnecessary 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 possiblyaffect any law of the Imperial Parliament with which they may be in conflict, but so far asthey are not i n conflict they will be applicable to a ship on her voyage for the preservation ofthose laws of the Commonwealth which it is necessary to have enforced.

END QUOTE


QUOTE

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."


21/37





The Hon. E. BARTON (New South Wales)[10.32]: This is an amendment which was made in the legislature ofTasmania at the instance of the Hon. A.I. Clark. That gentleman 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 oflegislatures in the various Australian colonies, and are perfectly appropriate when used in reference to theestablishment of the legislature which is to possess plenary legislative powers, and have unlimited jurisdiction on

all questions relating to the protection of life and property, and the enforcement of contractual rights of everykind; 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 toenforcement 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, which establishes a federal convention for Canada; but the primary object of that actis 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 aplace 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 decided by the Privy Council last year[L.R.A.C. 1896] to uphold the act of theDominion 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 thewords in question in connection with the definition and delegation of the legislative powers of the parliament of

the commonwealth, because they might, in some unforeseen and unexpected controversy, afford ground for anargument 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 subjectsmentioned in the sub-sections of section 52; and, if they are not required for that purpose, they must inevitablyencourage 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 inthe sub-sections of section 52, then they violate the canon of drafting, which requires that no unnecessary words

should be used in giving expression to the intention of the legislature. They are very properly inserted in section53, 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 tendsto create a resemblance in the scope of the powers conferred by the two sections, whereas it would be much

more desirable to make 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 forthe peace, order, and good government of the commonwealth in respect of the matters

specified. No construction in the world could confer any powers beyond the ambit ofthose 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 ofTasmania have proposed to omit might not raise the question whether legislation of thefederal parliament was in every instance for the peace, order, and good government of thecommonwealth. Take, for instance, navigation laws. Might it not be contended that certainnavigation 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 fullpowers to the parliament of the commonwealth, and might we not very well leave it to themto decide whether their legislation was for the peace, order, and good government of thecommonwealth? Surely that is sufficient, without our saying definitely that theirlegislation 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 seeingwhether these words are not surplusage, and whether, therefore, they had better not be left outof the bill altogether.


22/37





The Hon. E. BARTON: The suggestion of the hon. member will be considered by theDrafting Committee.

Amendment negatived.END QUOTE

Again;QUOTE

Surely that is sufficient, without our saying definitely that their legislation should be for the peace, order,

and good government

END QUOTE.

HANSARD 13x-1898 Constitution Convention DebatesQUOTE

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 setout. This is a power that is without limitation.

END QUOTE

.

It should be understood that while it was stated;This is a power that is without limitation.

It is within the limits of being for for the peace, order, and good government!As such as long as it is within the scope of for the peace, order, and good government thelegislative powers is unlimited..

HANSARD 17-3-1898Constitution Convention DebatesQUOTE Mr. DEAKIN.-

. In this Constitution, although much is written much remains unwritten ,END QUOTE

AndQUOTE Mr. DEAKIN.-

What a charter of liberty is embraced within this Bill-of political liberty and religious liberty-the libertyand the means to achieve all to which men in these days can reasonably aspire. A charter of liberty is

enshrined in this Constitution, which is also a charter of peace-ofpeace, order, and good government forthe whole of the peoples whom it will embrace and unite.

Mr. SYMON (South Australia).-I wish to say one word or two before we part. I do not intend to enter into anydetailed 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 Chartafor their acceptance and confirmation, and I can conceive ofnothing 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 baronsof England from a reluctant king. This new charter is to be given by the people of Australia to themselves.

END QUOTE

.

In my view judges such as Gummow J and McHugh J ought to have a retraining as to what isconstitutionally 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 outhow it was being used, including some opposition and a submission from Tasmania to have it takenout as there should be an unlimited power, but it was made clear, that unlimited power would existwithin the confines of laws being for the order, peace and good government and in the end thiswas retained in the Constitution! I for one wonder how on earth judges of the High Court ofAustralia do not comprehend this!

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

END QUOTE Chapter 007A The Great Deception


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.And also we have to consider then Chapter 000D HAVE EVERY BLUE-EYED BABYKILLED of the same book that sets out:.

QUOTE Chapter 000D HAVE EVERY BLUE-EYED BABY KILLED

Chapter 000D HAVE EVERY BLUE-EYED BABY KILLED

* Gary, what is your view about McHughs statement ?.

**#** INSPECTOR-RIKATI, how can anyone put the Court in disrepute when you have suchidiotic 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 ofAustralia then I think we might as well appoint one of my grandchildren to the bench and at leastthey be rather playing with toys and crayons and say nothing sensible then the utter rubbish that wenow 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

QUOTE 070520 postingI am very disturbed to find the following of a quotation to have found this discussion;

QUOTEMcHUGH J: I understand that and persons who have not had full legal training often think of Magna Carta and

the Bill of Rights as fundamental documents which control governments, but they do not.END QUOTE

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 wanted to.END QUOTE

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 ofAustralia.

The Commonwealth of Australia, as like the European Union, is created by Statue and 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 allconstitutional issues I raised!

The Commonwealth of Australia Constitution Act 1900 (UK) was an act to create a "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 regardless lacking anycompetence in constitutional matters, in fact they may never have practiced in constitutional matters, and in oneincident 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.

You find it as a matter of record that where the Governor-General was Defendant in a case before the High Courtof 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.

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 decisions for the


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parliament, approved of the entire constitution to be replaced by the Australia act 1986 (forget about it beingconstitutionally 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.

But, I s

chapter 0003 civil – political & religious liberties

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