100628 Governor General Q Bryce Re Constitutional Matters Etc

8/9/2019 100628 Governor General Q Bryce Re Constitutional Matters Etc

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28-6-2010 Page 1PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website

Http://www.schorel-hlavka.com will be the alternative website for contact details. [email protected]

Her Excellency Ms Quentin Bryce AC 28-6-2010Governor General of the Commonwealth of [email protected]. Ref: various constitutional issues

AND TO WHOM IT MAY CONCERN.

Madam,10as a CONSTITUTIONALIST I consider matters as to the true intention of the Framers of theConstitution irrespective of my personal views and as such not relevant if I am a monarchist,republican or whatever..

http://www.austlii.edu.au/cgi-15bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=%22thi+act+and+all+law+made+by+the+parliament%22#fn50QUOTE

Constitutional interpretation

The starting point for a principled interpretation of the Constitution is the20search for the intention of its makers[51].

END QUOTE.

HANSARD 17-3-1898 Constitution Convention DebatesQUOTE25

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

END QUOTE.

Hansard 8-2-1898 Constitution Convention Debates30QUOTE 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.35This correspondence will also be published by me in my books in the INSPECTOR-RIKATIseries on certain constitutional and other legal issues and as such have included at times lengthyquotations so that besides you the reader can become familiar with what the Framers of theConstitution debated..40The Commonwealth of Australia Constitution Act 1900 (UK) (The Constitution) is theconstitution that ultimately determines the rights, privileges, duties, etc of ever person within theboundaries of the Commonwealth of Australia..

QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Covering clauses452 Act to extend to the Queens successorsThe provisions of this Act referring to the Queen shall extend toHer Majestys heirs and successors in the sovereignty of the United


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Kingdom.

END QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Covering clauses.

Despite the push by republicans and even the High Court of Australia ( Sue v Hill) theCommonwealth of Australia is and will always remain a POLITICAL UNION of the5colonies/province now called States and it is outside the ambit of s.128 to amend this as clause 2is not part of the constitution itself and neither the pre-amble and hance beyond s.128 referendumpowers to be amended.

.Hansard 2-3-1898 Constitution Convention Debates10QUOTE

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 hereby15established." 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 intendedthere to have any relation whatever to the name of the country or nation which we are goingto create under that Union . The second part of the preamble goes on to say that it is

expedient to make provision for the admission of other colonies into the Commonwealth.20That 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.25I defeated comprehensively the Commonwealth of Australia after a 5-year epic legal battle on 19July 2006 on all constitutional issues I raised including that Australians are and remain to beSubjects of the British Crown and it is beyond constitutional powers for the Commonwealthof Australia to interfere with this..30QUOTE 7-1-2010 CORRESPONDENCE

Australian GovernmentDepartment of the Prime Minister and Cabinet

ONE NATIONAL CIRCUITBARTON35

Reference: c09/54418

Mr Gerrit Schorel-Hlavka107 Graham Road40VIEWBANK VICTORIA 3084

Dear Mr Schorel-Hlavka

Thank you for your email of 24 October 2009 to the Prime Minister regarding the45Commonwealths power to legislate over citizenship. I have been asked to reply on thePrime Ministers behalf. I apologise for the delay in doing so.

Australian citizenship is defined in the Australian Citizenship Act 2007. Ordinarily, theGovernment does not disclose its legal advice, including on constitutional issues, I refer50you, however, to the following passage from paragraph 4,179 of the Final Report of theConstitutional Commission, 1988:


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While the Federal Parliament has not been granted an express power to make laws

with respect to nationality and citizenship, it has been assumed that the Parliament

does have such a power. The power is either implied in section 51(xix) [of the

Constitution] or is one of the implied national powers. Its exercise by the Federal

Parliament, by enactment of the Australian Citizenship Act 1948 has certainly not5been called into question in any case before the High Court of Australia.

Yours sincerely

Brendan MacDowellA/g Assistant Secretary10Legal Policy Branch7 January 2010

QUOTE 7-1-2010 CORRESPONDENCE.

Hansard 27-1-1898 Constitution Convention Debates15QUOTE

Sir JOHN DOWNER.-Nothing should be too easy. We have the power to alter theConstitution, but it is a power that can only be exercised with great difficulty.

END QUOTE.20Hansard 31-1-1898 Constitution Convention Debates (Official Record of the Debates of theNational Australasian Convention)QUOTE Mr. SOLOMON.-

We shall not only look to the Federal Judiciary for the protection of our interests, butalso for the just interpretation of the Constitution:25

END QUOTE.

I can assume to be governor-General but that doesnt make me to be the governor-General.Likewise the Royal Commission could assume whatever but it doesnt alter the meaning andapplication of the constitution. The only manner the constitution can be amended is that the30

electors are requested to vote on a proposal to amend the constitution and then the electors canveto or approve the amendment. There is no power for the High Court of Australia to amend byjudgments the meaning and application of the constitution as it is beyond its judicial powers todo so. As the Framers of the Constitution made clear the High Court of Australia could onlyinterpret the intentions of the Framers of the Constitution and if it was to adjudicate that there35was a certain power existing then it simply always existed. As such, the notion in Sue v Hillthatover time there was a change is not constitutionally viable because either it never was there oralways was there but gradual changes cannot be applied..

It must be clear that the terminology used by the Framers of the Constitution are; British40subject, to make persons subjects of the British Empire., with the consent of the

Imperial authority, What is meant is a dual citizenship in Mr. Trenwith and myself. Thatis to say, I am a citizen of the state and I am also a citizen of the Commonwealth; that is the

dual citizenship., we are all alike subjects of the British Crown. We have a High Court ofAustralia that appears to me being political motivated to try to alter the Constitution by stealth45by endorsing a substitute Constitution!.

Hansard 2-3-1898 Constitution Convention DebatesQUOTE

Mr. SYMON.-Very likely not. What I want to know is, if there is anybody who will50come under the operation of the law, so as to be a citizen of the Commonwealth, whowould not also be entitled to be a citizen of the state? There ought to be no opportunity for

such discrimination as would allow a section of a state to remain outside the pale of theCommonwealth, except with regard to legislation as to aliens. Dual citizenship exists,


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but it is not dual citizenship of persons, it is dual citizenship in each person. There maybe two men-Jones and Smith-in one state, both of whom are citizens of the state, but

one only is a citizen of the Commonwealth. That would not be the dual citizenship

meant. What is meant is a dual citizenship in Mr. Trenwith and myself. That is to say,

I am a citizen of the state and I am also a citizen of the Commonwealth; that is the5dual citizenship. That does not affect the operation of this clause at all. But if we introducethis clause, it is open to the whole of the powerful criticism of Mr. O'Connor and those whosay that it is putting on the face of the Constitution an unnecessary provision, and onewhich we do not expect will be exercised adversely or improperly, and, therefore, it ismuch better to be left out. Let us, in dealing with this question, be as careful as we possibly,10can that we do not qualify the citizenship of this Commonwealth in any way or excludeanybody [start page 1764] from it, and let us do that with precision and clearness. As acitizen of a state I claim the right to be a citizen of the Commonwealth. I do not want

to place in the hands of the Commonwealth Parliament, however much I may beprepared to trust it, the right of depriving me of citizenship. I put this only as an15argument, because no one would anticipate such a thing, but the CommonwealthParliament might say that nobody possessed of less than 1,000 a year should be a citizenof the Federation. You are putting that power in the hands of Parliament.

Mr. HIGGINS.-Why not?

Mr. SYMON.-I would not put such a power in the hands of any Parliament. We must20rest this Constitution on a foundation that we understand, and we mean that every

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

shall have no right to withdraw, qualify, or restrict those rights of citizenship , except

with regard to one particular set of people who are subject to disabilities, as aliens,and so on.25

END QUOTE.

Hansard 2-3-1898 Constitution Convention Debates

QUOTEMr. SYMON.-The honorable and learned member is now dealing with another matter.30

Would not the provision which is now before us confer upon the Federal Parliament thepower to take away a portion of this dual citizenship, with which the honorable and learnedmember (Dr. Quick) has so eloquently dealt? If that is the case, what this Convention isasked to do is to hand over to the Federal Parliament the power, whether exercised or not,of taking away from us that citizenship in the Commonwealth which we acquire by joining35the Union. I am not going to put that in the power of any one, and if it is put in the power ofthe Federal Parliament, then I should feel that it was a very serious blot on the Constitution,and a very strong reason why it should not be accepted. It is not a lawyers' question; it is aquestion of whether any one of British blood who is entitled to become a citizen of the

Commonwealth is to run the risk-it may be a small risk-of having that taken away or40diminished by the Federal Parliament! When we declare-"Trust the Parliament," I amwilling to do it in everything which concerns the working out of this Constitution, but I amnot prepared to trust the Federal Parliament or anybody to take away that which is a leadinginducement for joining the Union.

END QUOTE45.

Much has been argued about the purported Westminster Act and the Australia Act (1986) bothUK & Cth but none of those acts have any legal validity as to affecting the Commonwealth of

Australia Constitution Act 1900 (UK).More over, the function of the governor-General is to ensure that all bills passed by the50parliament obtain Royal Assent, unless Her Majesty has an issue with it.


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QUOTEMr. HOLDER: Yes, of course; the Commission from Her Majesty lies dormant until it

is actually called into existence by the absence of the Governor; but we can at this moment,if the necessity arises, appoint a new occupant to the Supreme Court Bench, and that wouldqualify him to fill the office of Acting-Governor if need required it. Therefore I think it is5clear that to that extent it lessens the argument that the main link that binds us to themother-country is the appointment of the Governor, and shows that it is an argument whichhas not half so much weight as some of the speakers would have us believe. But I take avery strong position against the election of the Governor-General by the Federation, notbecause I believe it would mean losing a link which binds us to England, but that we should10have a man of such power and authority, derived directly from the people, that he wouldcertainly clash with the other powers and authorities we propose to set up under this

Constitution.

END QUOTE.15HANSARD 26-3-1897 Constitution Convention DebatesQUOTE Mr. LYNE:

First of all, he raised the question of the appointment of the Governor-General for the

Federal Executive. Now, I think there is no desire on the part of any large section of

this community to take what I may term the first step towards a severance from the20mother-country, but the first step would be in the election of the Governor-Generalinstead of allowing his appointment to be made by the Home Government. It is but a

small connecting link between the Australasian colonies-between a Federated

Australia and the mother-country-to allow the appointment to be made by the Home

Government; and I should like to know what power that Government would have25over any Governor-General elected in the manner desired.

END QUOTE.

Hansard 17-2-1898 Constitution Convention DebatesQUOTE30

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 theCommonwealth.35

We see there that the Commonwealth is named as distinguished from the states .END QUOTE.

This correspondence will be far too extensive to include all relevant details but it should be clear

that for anyone to ensure there is a democracy then this person must act in accordance as to what40 is constitutionally permissible and applicable.We have a Minister Kate Ellis as Minister for Youth, just that no such constitutional power isexisting for the Commonwealth. The problem with this position as well as others is that there isno proper constitutional advisory body existing that scrutinise first all legislative proposals as toit being constitutionally valid and permissible so that each Member of Parliament who is to vote45on a Bill or amendment of a Bill (proposed law) has the advise as to if the proposed Bill isconstitutionally permissible or not. For this the OFFICE-OF-THE-GUARDIAN is to be theconstitutional advisory council as to ensure that all Members of Parliament, all citizens, alljudges, etc, are provided with the same information regardless of their political colours..50Hansard 20-4-1897 Constitution Convention DebatesQUOTE Mr. HIGGINS:


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I think it is advisable that private people should not be put to the expense of having

important questions of constitutional law decided out of their own pockets.

END QUOTE.

Hansard 31-1-1898 Constitution Convention Debates (Official Record of the Debates of the5National Australasian Convention)QUOTE Mr. SOLOMON.-

Most of us, when we were candidates for election to the Federal Convention, placed

great stress upon it as affording a means of bringing justice within easy reach of thepoor man.10

END QUOTE.

The OFFICE-OF-THE-GUARDIAN is to be the GUARDIAN OF THE CONSTITUTIONas the High Court of Australia simply fails to be so. Judges are appointed to the High Court ofAustralia who may have next to know knowledge about constitutional issues and indeed a Judge15refused to hand down a judgment upon the basis that he didnt know the constitutional issue..

The High Court of Australia in regard of s.64 allowed the Governor-General to appoint a rangeof secretaries to Ministers this even so the Framers of the Constitution specifically made clear

that the reason there had to be a Minister over a Department was so that the Minister was the sole20 person responsible to the Parliament. Hence, the term Responsible Minister. The momentthere is a secretary to the Minister or by whatever other title a person is appointed then this isunconstitutional because it removed the sole responsibility of the Minister..

Mr Ken Henry is known as the head of the Treasury, but the constitutional application of the25Minister of the treasury (referred to as the treasurer) is that he and he alone is the head of theDepartment and no other person. You cannot therefore have a Head of a Department being apublic servant below a Minister because the Constitution doesnt permit this..

We have found lately a sting of failures such as the death in regard of the insulation fiasco but30reality is that there was no constitutional powers to fund the insulation scheme. There is no

constitutional powers for an ETS scheme and there is no constitutional power for this SUPERTAX as is proposed. We had the former Prime Minister Kevin Rudd having his SORRY DAYspeech but in reality it proved to be hollow words because he continued unabated with theunconstitutional Northern Territory Intervention Act against Aboriginals.35.

Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of theNational Australasian Convention)QUOTE

Mr. HOLDER.-A measure would be valid while it was a Bill, and invalid when it40became a law.

Mr. ISAACS.-That is a very terse and correct way of putting it, and it proves theabsurdity of the provision. We are, in my opinion, making the Senate too strong a body. Toallow these matters to be carried into the Supreme Court is to say that the Senate cannotprotect itself, and that the states cannot protect themselves. Surely that is not to be thought45of for a moment. We want a people's Constitution, not a lawyers' Constitution. Weshall be making the Supreme Court, not the master, but the tyrant of the Constitution, byinserting a clause of this kind. I do strongly appeal to my honorable friends to alter theclause in some way.

END QUOTE50.

Lawyers interpret the constitution as a lawyer but as a CONSTITUTIONALIST I interpret the

constitution to the intentions of the Framers of the Constitution. That is also why I socomprehensively defeat the Commonwealth of Australia in litigation.


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The appointment of Ms Julia Gilliard as I understood you to say was within s.64 and s.65 of theconstitution to the Office of the Prime Minister and again I urge you to consider the true meaningand application of the constitution. While many a person claims that there can be no PrimeMinister because there is no reference of Prime Minister in the constitution the truth is that theFramers of the Constitution extensively did debate there being a Prime Minister. However, the5Prime minister is one who is commissioned by the governor-General to get together a body ofpeople to acts as Government under the supervision of the Governor-General. The Governor-General is the Chief Executive Officer (CEO) of the Commonwealth of Australia and if aMinister is failing to fulfil his/her duties then the Governor-General must take decisive action toaddress this albeit without getting involved in political issues.10It should be understood that the Governor-General has no constitutional powers to act beyond theboundaries of the Commonwealth of Australia and when leaving these boundaries must have aperson appointed, paid for by the Governor-General) who takes care of duties. There can not bethat a Governor-General so to say is taking a trip overseas at taxpayers expenses because that isnot permissible under the constitution.15I am well aware that there are people who are so to say blowing the horn of establishing arepublic but what they then do is to give a clear sign that they cannot be trusted as republicanswhere they are unconstitutionally charging taxpayers for cost that is constitutionally not

permissible to be charged to the taxpayers (Consolidated Revenue funds).Likewise this spending of a reported in excess of $400 million by the Office of the Prime20Minister is unconstitutional. It is nothing less then pork barrelling and this too isunconstitutional. As a matter of fact so is all and any payments to former Governor-Generals andformer Ministers. And former Members of Parliament as once they loose their seat then it stopsany further payments. A Member of Parliament is not permitted to receive a salary as theConstitution only allows for a allowance and only while a Member of Parliament is actually a25sitting Member of Parliament..

QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Part IVBoth Housesof the Parliament

48 Allowance to members30 Until the Parliament otherwise provides, each senator and eachmember of the House of Representatives shall receive anallowance of four hundred pounds a year, to be reckoned from theday on which he takes his seat.

END QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Part IVBoth35Houses of the Parliament.

The following will also make clear that the Framers of the Constitution intended to have CIVILRIGHTS and LIBERTIES principles embedded in the Constitution;HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates of40the National Australasian Convention)

QUOTE Mr. CLARK.-for the protection of certain fundamental rights and liberties which every individualcitizen is entitled to claim that the federal government shall take under its protection andsecure to him.45

END QUOTE.

HANSARD18-2-1898 Constitution Convention Debates (Official Record of the Debates ofthe National Australasian Convention)QUOTE Mr. ISAACS.-50

The right of a citizen of this great country, protected by the implied guarantees of itsConstitution,

END QUOTE.


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QUOTEMr. HIGGINS.-But suppose they go beyond their power?

Mr. GORDON.-It is still the expression of Parliament. Directly a Ministry seeks toenforce improperly any law the citizen has his right.5

END QUOTE.

Well, as indicated the way everything operates the republicans if anything are showing to

electors that they are out to misuse and abuse their powers even further. The ongoing rorting iscontinuing and allowed to do so because of the lack of legal accountability and hence the need10for the OFFICE-OF-THE-GUARDIAN..

QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Clause 9

The Constitution9 Constitution [see Note 1]15The Constitution of the Commonwealth shall be as follows:The ConstitutionThis Constitution is divided as follows:Chapter IThe Parliament

Part IGeneral20 Part IIThe SenatePart IIIThe House of RepresentativesPart IVBoth Houses of the ParliamentPart VPowers of the ParliamentChapter IIThe Executive Government25Chapter IIIThe JudicatureChapter IVFinance and TradeChapter VThe StatesChapter VINew StatesChapter VIIMiscellaneous30Chapter VIIIAlteration of the Constitution

The ScheduleEND QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Clause 9.

QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Part IGeneral352 Governor-GeneralA Governor-General appointed by the Queen shall be HerMajestys representative in the Commonwealth, and shall have andmay exercise in the Commonwealth during the Queens pleasure,but subject to this Constitution, such powers and functions of the40Queen as Her Majesty may be pleased to assign to him.

3 Salary of Governor-GeneralThere shall be payable to the Queen out of the Consolidated

Revenue fund of the Commonwealth, for the salary of theGovernor-General, an annual sum which, until the Parliament45otherwise provides, shall be ten thousand pounds.The salary of a Governor-General shall not be altered during hiscontinuance in office.

4 Provisions relating to Governor-GeneralThe provisions of this Constitution relating to the50Governor-General extend and apply to the Governor-General forthe time being, or such person as the Queen may appoint toadminister the Government of the Commonwealth; but no suchperson shall be entitled to receive any salary from the

Commonwealth in respect of any other office during his55 administration of the Government of the Commonwealth.END QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Part IGeneral


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.

HANSARD 6-3-1891 Constitution Convention Debates (Official Record of the Debates ofthe National Australasian Convention)QUOTE

Sir SAMUEL GRIFFITH: At all events, I would ask hon. members to pause before they5determine upon asking the Queen to surrender all her prerogatives in Australia. For mypart, I believe that all the prerogatives o f the Crown exist in the governor-general as

far as they relate to Australia. I never entertained any doubt upon the subject at all-that is

so far as they can be exercised in the commonwealth.END QUOTE10.

HANSARD 24-3-1897 Constitution Convention Debates (Official Record of the Debates ofthe National Australasian Convention)QUOTE

Mr. O'CONNOR: I should certainly be altogether opposed to enacting anything in15the Constitution which would make either House at any time merely subservient to

the purposes of any Government, (Hear, hear.) The public interest stands higher than that.My only reason for proposing this mechanical method of getting rid of the difficulty is thatit is to the public interest that the country should have the question settled one way or theother.20

END QUOTE.


QUOTE Mr. THYNNE:

I shall quote from Mr. Dicey's recent work, which is very clear in its language. He says:25

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 QUOTE30.

END QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Chapter IITheExecutive Government

61 Executive powerThe executive power of the Commonwealth is vested in the Queen35and is exercisable by the Governor-General as the Queensrepresentative, and extends to the execution and maintenance ofthis Constitution, and of the laws of the Commonwealth.

62 Federal Executive Council

There shall be a Federal Executive Council to advise the40 Governor-General in the government of the Commonwealth, andthe members of the Council shall be chosen and summoned by theGovernor-General and sworn as Executive Councillors, and shallhold office during his pleasure.

63 Provisions referring to Governor-General45The provisions of this Constitution referring to theGovernor-General in Council shall be construed as referring to theGovernor-General acting with the advice of the Federal ExecutiveCouncil.

64 Ministers of State50The Governor-General may appoint officers to administer such

departments of State of the Commonwealth as theGovernor-General in Council may establish.


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Such officers shall hold office during the pleasure of theGovernor-General. They shall be members of the FederalExecutive Council, and shall be the Queens Ministers of State forthe Commonwealth.

Ministers to sit in Parliament5After the first general election no Minister of State shall hold officefor a longer period than three months unless he is or becomes asenator or a member of the House of Representatives.

65 Number of MinistersUntil the Parliament otherwise provides, the Ministers of State10shall not exceed seven in number, and shall hold such offices as theParliament prescribes, or, in the absence of provision, as theGovernor-General directs.

66 Salaries of MinistersThere shall be payable to the Queen, out of the Consolidated15Revenue Fund of the Commonwealth, for the salaries of theMinisters of State, an annual sum which, until the Parliamentotherwise provides, shall not exceed twelve thousand pounds ayear.

END QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Chapter IIThe20

Executive Government.

The above makes it very clear that a Minister can only be appointed to serve the British Crownand to serve as an advisor of the Governor-General. However, the ministers are entitled tooperate their Departments as they deem appropriate within constitutional and any legislative25powers provided for this. A considerable difference then the UK Minister who is not bound byfor the peace, order and good government, as Australian Ministers are..

Hansard 6-4-1897 Constitution convention Debates (Official Record of the Debates of theNational Australasian Convention)30QUOTE

Sir SAMUEL GRIFFITH: I am trying to get at the ideas which are underlying theargument of hon. gentlemen. I confess I have not got at them yet. The hon. member, Mr.Deakin, talks about the powers exercised by the ministers of the Crown in GreatBritain. They do not differ in any respect from the powers exercised by ministers of the35Crown in any other country.

Dr. COCKBURN: They are much superior to the powers of ministers here!

Sir SAMUEL GRIFFITH': Not in the east.

Mr. DEAKIN: The powers of our ministers are limited, and theirs are unlimited!

END QUOTE40.


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 we45consider the great amount of time, trouble, and expense it would take to make any

alteration, and that, if we have not made our intentions clear, we shall undoubtedly

have laid the foundation of lawsuits of a most extensive nature, which will harass thepeople of United Australia and create dissatisfaction with our work, it must be evident

that too much care has not been exercised.50 END QUOTE.


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QUOTEMr. OCONNOR (New South Wales).-The honorable and learned member (Mr. Isaacs)

is I think correct in the history of this clause that he has given, and this is [start page 672]one of those instances which should make us very careful of following too slavishly the5provisions of the United States Constitution, or any other Constitution. No doubt in puttingtogether the draft of this Bill, those who were responsible for doing so used the materialthey found in every Constitution before it, and probably they felt that they would beincurring a great deal of responsibility in leaving out provisions which might be in the leastdegree applicable. But it is for us to consider, looking at the history and reasons for these10provisions in the Constitution of the United States, whether they are in any way applicable;and I quite agree with my honorable and learned friend (Mr. Carruthers) that we should bevery careful of every word that we put in this Constitution, and that we should have noword in it which we do not see some reason for. Because there can be no question that intime to come, when this Constitution has to be interpreted, every word will be weighed and15an interpretation given to it; and by the use now of what I may describe as idle words whichwe have no use for, we may be giving a direction to the Constitution which none of us nowcontemplate. Therefore, it is incumbent upon us to see that there is some reason for every

clause and every word that goes into this Constitution.END QUOTE20.


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 the25Parliament 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 isnot what is meant by the term "Trust the Federal Parliament."

END QUOTE.30Part VPowers of the Parliament51 Legislative powers of the Parliament [see Notes 10 and 11]The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and goodgovernment of the Commonwealth with respect to:QUOTE35

(xxix) external affairs;

END QUOTE.

There appears to be a gross misunderstanding as to what external affairs actually allows for.The Framers of the Constitution made clear that this would permit the Commonwealth of40

Australia to have powers to deal with other nations in regard of matters it had already existingpowers for. As such, external affairs allows it to deal with matters of aliens,telecommunication, trade and commerce and other powers listed within s.51 of the constitution,however take for example the issue of sport and there is a Minister for Sport even so this is not aconstitutional power, hence any appointment (commission) for a Minister of sport is45unconstitutional. One cannot merely turn external powers a one for all power base because asthe Framers of the Constitution stated;.


QUOTE50Mr. 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-theMinisters for the time being in each state might say-"We are favorable to this law, because


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we shall get 100,000 a year, or so much a year, from the Federal Government as a subsidyfor our schools," and thus they might wink at a violation of the Constitution , while noone could complain. If this is to be allowed, why should we have these elaborateprovisions for the amendment of the Constitution? Why should we not say that the

Constitution may be amended in any way that the Ministries of the several colonies5may 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 QUOTE10.

The mere fact that the Constitution provides for certain legislative powers means that externalaffair powers must be read within that power structure and not beyond. As such where there is noprovision for a sport legislative power then external affairs powers cannot overcome this. Hence,no validity in appointment of a Minister for Sport because the governor-General is bound by the15constitution as much as anyone else..

QUOTE

2 Governor-General

A Governor-General appointed by the Queen shall be Her20Majestys representative in the Commonwealth, and shall have andmay exercise in the Commonwealth during the Queens pleasure,but subject to this Constitution, such powers and functions of theQueen as Her Majesty may be pleased to assign to him.

END QUOTE25.

What we have therefore is that any appointment (commission) purportedly given by thegovernor-General in regard of a portfolio that is unconstitutional then the commission likewiseremains unconstitutional. More over, where the salaries of the Ministers are payable to the queenthen the Queen bound by the constitution can only be paid for salaries of Ministers that are30commissioned to serve as advisors to the Governor-General according to what is constitutionallypermissible. Likewise the payment of the governor-General is payable to the Queen..

When a company engages a check out chick (cash register attendance) then it would be absurdfor this person to take out of the till her own wages as she ultimately has to wait for the employer35to pay her. Likewise a Minister/Governor-General cannot be paid out of Consolidated RevenueFunds directly as the payment must be made to Her Majesty the queen and it is up to theMonarch to then decide how much she pays the Minister/Governor-General in what manner. Themoment a Mini9ster/Governor-General leaves office then no further payments can be made outof the consolidated Revenue Funds to the Queen, albeit the queen may desire to fund the former40Minister/Governor-General out of her own pocket but that is nothing to do with Australiantaxpayers. Indeed, Sir Grey was a Governor-General of South Africa and later became PrimeMinister of New Zealand and surely Her majesty wasnt going to provide him with a pension ofone and later an additional pension for another. Her Majesty is entitled to appoint anyonesubsequently of having served as a Governor-General to serve elsewhere in the Monarchy as45Governor-General and it could hardly be held that each country had to pay this person then witha lifetime pension. As such, the moment a Governor-General/Governor/Minister seizes to occupythe office previously held then all payments come to an end.The moment a Member of Parliament seizes to hold a seat in the Parliament then all payment ofallowances stop. Any Member of Parliament who is not otherwise self employed or employed50and neither holds a office as a Minister is technically unemployed as the allowance is not andnever can be deemed to be a salary as it is an allowance..

QUOTE66 Salaries of Ministers55


14/37



There shall be payable to the Queen, out of the ConsolidatedRevenue Fund of the Commonwealth, for the salaries of theMinisters of State, an annual sum which, until the Parliamentotherwise provides, shall not exceed twelve thousand pounds ayear.567 Appointment of civil servantsUntil the Parliament otherwise provides, the appointment andremoval of all other officers of the Executive Government of the

Commonwealth shall be vested in the Governor-General inCouncil, unless the appointment is delegated by the10Governor-General in Council or by a law of the Commonwealth tosome other authority.

END QUOTE.

QUOTE153 Salary of Governor-GeneralThere shall be payable to the Queen out of the ConsolidatedRevenue fund of the Commonwealth, for the salary of theGovernor-General, an annual sum which, until the Parliamentotherwise provides, shall be ten thousand pounds.20

The salary of a Governor-General shall not be altered during hiscontinuance in office.

END QUOTE.

A public servant can only serve the Government within the provisions of the constitution and as25such no public servant can serve in the public service of the Commonwealth within someDepartment of Sport or Department of Youth because those are not constitutionally validdepartment. The Department of the Aged is a valid Department. The Department of Water andEnvironment is not because the framers of the Constitution made clear that this was to remainwith the States.30.

While the so called stimulus package of billions of dollars was being spend on numerousitems most of it was all unconstitutionally used because the Commonwealth of Australia had noconstitutional powers as to the kind of spending that took place.Likewise the tax exemption of diplomates, etc, is beyond constitutional powers because the35Commonwealth as an employer has no better legal standing as any other company. TheCommonwealth of Australia can only legislate for the whole of the Commonwealth and hencetax free income for politicians and former politicians is unconstitutional.As the Framers of the Constitution made clear it could be on a sliding scale for all Australiansbut not to exclude some people and not others.40This is also why the Northern Territory Intervention Act is unconstitutional because it is notwithin s.51(xxvi) of the constitution and neither within the ambit of s.122 of the constitution.

Likewise the proposed ETS is not a taxation for the whole of the Commonwealth. The samewith the SUPER TAX on mining companies..45Again, I have no issue with having a Prime Minister because the Framers of the Constitution allalong intended that there would be a Prime Minister and the Governor-General albeit the CEOwould be there in a supervisory role and not being hands on as to run the government. However,having an Office of the Prime minister is where it goes wrong and the same with having a PrimeMinister then having more then $400.00 million as some slash funds for pet projects (pork50barrelling) as this again undermines the entire set up of the constitution. The only way anyCommonwealth monies can be spend without being for the whole of the commonwealth isthrough the s.101 Inter-State Commission, as this was specifically set up and must always exist

for the purpose to allow trade and commerce laws to be applied in consideration of what is bestfor each state.55


15/37


16/37



a pension, by any person as an officer or member of the Queensnavy or army, or to the receipt of pay as an officer or member ofthe naval or military forces of the Commonwealth by any personwhose services are not wholly employed by the Commonwealth.

END QUOTE5.

Where the schedule to the Act is not a schedule to clause 9 (The constitution) then it neither canbe amended by the Commonwealth of Australia and hence any oath/affirmation by any

Governor-General, governor and/or Minister must be as per schedule oath or affirmation. Failingthis then the oath/affirmation is invalid. It may be stated that President Barack Hussein Obama10had to re-swear the oath in the oval office when it was discovered the original oath had not beenproperly made..

HANSARD 2-3-1898 Constitution Convention Debates

QUOTE15Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that we

are all alike subjects of the British Crown.

END QUOTE.

Hansard 2-3-1898 Constitution Convention Debates20QUOTE

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 hereby25established." 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 intendedthere to have any relation whatever to the name of the country or nation which we are goingto create under that Union . The second part of the preamble goes on to say that it isexpedient to make provision for the admission of other colonies into the Commonwealth.30

That is, for admission into this political Union, which is not a republic, which is not tobe 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.35As such, if there is no monarchy there can be no Queen of Australia. If the title of Queen ofAustralia really means the British Crown then Heather Hill clearly was qualified to be aMember of Parliament. Again consider Calvins case 7 coke Report 1a, 77 ER 377 (1608),which I view sets it out considerably.QUOTE40

4. And as to the fourth, it is less than a dream of a shadow, or a shadow of a dream: for ithath been often said, natural legitimation respecteth actual obedience to the sovereign atthe time of the birth; for as the antenati remain aliens as to the Crown of England, becausethey were born when there were several Kings of the several kingdoms, and the [7-Coke-27b] uniting of the kingdoms by descent subsequent cannot make him a subject to that Crown45to which he was alien at the time of his birth: so albeit the kingdoms (which Almighty Godof his infinite goodness and mercy divert) should by descent be divided, and governed byseveral Kings; yet it was resolved, that all those that were born under one naturalobedience while the realms were united under one sovereign, should remain natural

born subjects, and no aliens; for that naturalization due and vested by birthright,50cannot by any separation of the Crowns afterward be taken away: nor he that was by

judgment of law a natural subject at the time of his birth, become an alien by such a

matter ex post facto.END QUOTE


17/37



AndQUOTE

3. Where the King hath several kingdoms by several titles and descents, there also are theligeances several: but the King hath these two kingdoms by several titles and descents;therefore the ligeances are several. These three arguments are collected also from the5words of the plea before remembered.3. Leges. From the several and distinct laws of either kingdom, they did reason thus:1. Every subject that is born out of the extent and reach of the laws of England,

cannot by judgment of those laws be a natural subject to the King, in respect of his

kingdom of England: but the plaintiff was born at Edinburgh, out of the extent and10reach of the laws of England; therefore the plaintiff by the judgment of the laws of

England cannot be a natural subject to the' King, as of his kingdom of England.END QUOTEAndQUOTE15

By all which it is manifest, that the protection and government of the King is general overall his dominions and kingdoms, as well in time of peace by justice, as in time of war bythe sword, and that all be at his command, and under his obedience.

END QUOTEAnd20QUOTE

3. There be regularly (unless it be in special cases) three incidents to a subject born. 1.

That the parents be under the actual obedience of the King. 2. That the place of his

birth be within the King's dominion. And, 3. The time of his birth is chiefly to beconsidered; for he cannot be a subject born of one kingdom that was born under the25ligeance of a King of another kingdom, albeit afterwards one kingdom descend to the

King of the other. For the first, it is termed actual obedience, because, though the

King f' England hath absolute right to other kingdoms or dominions, as France,

Aquitai, Normandy, &c. yet seeing the King is not in actual possession thereof, none

born there since the Crown of England was out of actual possession thereof, are30subjects to the King of England. 2. The place is observable, but so as many times

ligeance or obedience without any place within the King's dominions may make a

subject born, but any place within the King's dominions may make a subject born,

but any place within the King's dominions without obedience can never produce anatural subject. And therefore if any of the King's ambassadors in foreign nations,35have children there of their wives, being English women, by the common laws of

England they are natural-born subjects, and yet they are born out-of the King's

dominions. But if enemies should come into any of the King's dominions, and surprise

any castle or fort, and [7-Coke-18 b] possess the same by hostility, and have issuethere, that issue is no subject to the King, though he be born within his dominions, for40

that he was not born under the King's ligeance or obedience. But the time of his (a)birth is of the essence of a subject born; for he cannot be a subject to the King of

England, unless at the time of his birth he was under the ligeance and obedience of

the King. And that is the reason that antenati in Scotland (for that at the time of theirbirth they were under the ligeance and obedience, of another King) are aliens born, in45respect of the time of their birth.

END QUOTEAgainQUOTE

yet it was resolved, that all those that were born under one natural obedience while50the 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


18/37



law a natural subject at the time of his birth, become an alien by such a matter ex post

facto.

END QUOTE.

Moller v Board of Examiners for Legal Practitioners [1999] VSCA 116 (30 July 1999)5QUOTE

10. The judge rejected the application. His Honour's reasons included that, in swearingallegiance to the Queen, the appellant would be doing no more than swearing

allegiance to the Head of State of the country of which he is now a citizen and, in

effect, to Australia. His Honour said that the fact that the appellant is a dedicated10republican was not to the point and that the swearing of the oath would not change thatfact nor prejudice the appellant in that regard. His Honour also said that it wasappropriate that the appellant swear an oath of allegiance to the Head of State of

this country in the same fashion as any other officer of the Court.

END QUOTE15.

It should be understood no one forces anyone to make an oath or affirmation and any republicanwho desires not to do so as is per schedule is not required to do so albeit neither then can take up

a position in an office to serve the monarchy. While Moller v Board of Examiners for LegalPractitioners it nevertheless is a clear example that if you do not want to swear alliance to the20Monarch then forget about a job that is an employment with the Monarch.There is no constitutional provision for anyone to act as Governor-General, Governor

and/or Minister of the Crown when refusing to make an oath of alliance or an Affirmation

of alliance. After all a Governor-General, Governor and/or a Minister of State (Minister ofthe Crown) all are to be employed by the Monarch. Hence, any true republican would never25then accept any position in the employment of the monarch and therefore any republican who isin the employment of the Monarch is in my view a fake republican. The constitution is the rule oflaw of which all other laws that are enacted derives from!.

The following applies as much to Federal laws of the Commonwealth of Australia as it does to30 federal laws in the USA; http://familyguardian.tax-tactics.com/Subjects/LawAndGovt/ChallJurisdiction/AuthoritiesArticle/AuthOnJurisdiction.htmQUOTE

37 Am Jur 2d at section 8 states, in part: "Fraud vitiates every transaction and all contracts.Indeed, the principle is often stated, in broad and sweeping language, that fraud destroys35the validity of everything into which it enters, and that it vitiates the most solemn contracts,documents, and even judgments."

END QUOTEAndQUOTE40

The general misconception is that any statute passed by legislators bearing the appearanceof law constitutes the law of the land. The U.S. Constitution is the supreme law of the land,and any statute, to be valid, must be in agreement. It is impossible for both the Constitutionand a law violating it to be valid; one must prevail. This is succinctly stated as follows:

The general rule is that an unconstitutional statute, though having the form and name45of law, is in reality no law, but is wholly void, and ineffective for any purpose; sinceunconstitutionality dates from the time of its enactment, and not merely from the dateof the decision so branding it. An unconstitutional law, in legal contemplation, is asinoperative as if it had never been passed. Such a statute leaves the question that itpurports to settle just as it would be had the statute not been enacted.50Since an unconstitutional law is void, the general principles follow that it imposes no

duties, confers no rights, creates no office, bestows no power or authority on anyone,affords no protection, and justifies no acts performed under it. . .


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A void act cannot be legally consistent with a valid one. An unconstitutional law cannotoperate to supersede any existing valid law. Indeed, insofar as a statute runs counter to thefundamental law of the land, it is superseded thereby.No one is bound to obey an unconstitutional law and no courts are bound to enforce it.

END QUOTE5Sixteenth American Jurisprudence

Second Edition, 1998 version, Section 203 (formerly Section 256).

The same applies to an unconstitutional appointment, that where an appointment was made inconflict with what the constitution permits then the appointment is ULTRA VIRES. This then10also means that anyone who nevertheless collects any payments purporting to hold a certainposition under the Crown but not having made the appropriate oath/affirmation then defrauds anymonies that was received as such and all and any decisions, etc, this person makes is and remainsto be without validity..15Republicans are not the only one who have to consider this as monarchist who are trying toturn the Commonwealth of Australia in a Monarchy likewise are undermining the

application of the constitution.

The constitution has embedded in it that those born within the Commonwealth of Australia, other

then children of diplomates, are Subjects of the Queen. As such republican and monarchist20 alike should recognise that Australians are because they reside in the Commonwealth ofAustralia but are British nationals by nationality as much as for example the residents of HongKong were living under the British Imperial status and so likewise those in India when theBritish Monarchy ruled there, and indeed the Framers of the Constitution made this clear also!See below quotations!25.


Mr. HOLDER.-I accept that statement of the honorable member, but I submit that hisproposed new clause might be interpreted as I interpreted it by some authority, and, in that30

case, we should be landed in a very unfortunate position. Dr. Quick's amendment is evenworse, because it provides that-

All persons resident within the Common-wealth, being natural-born or naturalized

subjects of the Queen, and not under any disability imposed by the Parliament, shall becitizens of the Commonwealth.35

Now, it might be easily conceivable that, simply because a man was born under

British rule in India, China, or elsewhere, therefore, of necessity, on arriving in one ofthese colonies, he could claim citizenship of the Commonwealth. Is it not a mistake tostereotype in the Commonwealth Bill at this period our opinions on this subject? Would it

not be better to authorize the Federal Parliament to deal with this question, not once only,40 but from time to time as circumstances and [start page 1791] conditions may change? Ihope that both the proposals will be withdrawn or negatived, and that at a later stage anopportunity will be given to Dr. Quick to try again what he tried yesterday, a provisionwhich, as then proposed, or with a slight alteration of the words, would give to the FederalParliament power to determine the citizenship of the Commonwealth from time to time,45and thus to meet any changes of conditions, which certainly ought to be met if they arise,but which cannot then be met if we now arrive at some decision and stereotype it once forall in this Constitution.

END QUOTE.50

It is a mistake to argue that a person who resided in another part of the Commonwealth underBritish rule then has to swear an oath of alliance when coming into the Commonwealth of


20/37



Australia because a person who is already a Subject of the Queen cannot swear alliance to thesame Queen in some other persona..


QUOTE5

Mr. OCONNOR.-If they are political rights, they are conferred already by virtue of aperson being an inhabitant of a state entitled to certain political rights, in such state. Thehonorable member cannot intend to give a different right to a citizen politically under thegovernment of the Commonwealth from the right of a citizen of any state. The rights arecoterminous-coincident-and the political rights of every citizen of the Commonwealth who10is within the Commonwealth arise by virtue of his being a citizen of a state.

END QUOTE.


QUOTE15

Mr. OCONNOR.-I have said already that I have no objection to some definition beinggiven in another clause, laying down who shall be citizens of the Commonwealth for whatit may be worth, and I can see one point of view in which there may be some reason for it.

What I am pointing out now is that this proposal does not enlarge in any way the right todeal with the question, because the rights of the states politically are absolutely secured by20the Constitution in its present form. But I see no objection to some kind of a definitionbeing given of the rights of citizenship, that is to say, that every citizen of a state shall be acitizen of the Commonwealth, for this reason, that I can see one aspect in which new rightsare given to the whole Commonwealth, that is to say, rights which they hold as members ofthe Commonwealth. The right to appeal to the courts of the Commonwealth is a new right.25For instance, at the present time a resident of New South Wales cannot sue a resident ofVictoria, except by going through a certain process, and getting judgment, and having thatenforced, but be cannot sue him directly.

END QUOTE.30Hansard 2-3-1898 Constitution Convention Debates

QUOTE

Mr. OCONNOR.-I have said that I do not see that such a trust in the Federal Parliamentwould be effective. I sympathize with the honorable member's view, but I think it will becarried out by some kind of definition of citizenship, and I was pointing out the only aspect35in which it appears to me it might be desirable to have some such definition, and that is,you are creating new rights to citizens of the Commonwealth as citizens of theCommonwealth in regard to your courts. You establish courts for the Commonwealth, andevery citizen of the Commonwealth is entitled to the use of those courts.

Mr. HIGGINS.-Who is he?40

Mr. OCONNOR.-That is what has to be defined. A citizen of the Commonwealth is atpresent any person who has political rights which the Constitution gives him, which he getsby virtue of being a resident of a state. That is exactly the reason upon which thecitizenship definition in the American Constitution stands.

Mr. HOLDER.-Would it not avoid difficulty to leave the Federal Parliament to define it45from time to time?

Mr. OCONNOR.-That really gives no power whatever. It does not carry out the

honorable member's object, because the power to deal with persons coming fromoutside, in regard to their being members of the community, is given in the powers to


21/37



deal with immigration and aliens. The power to deal with citizens of states is limited bythe rights of the states at the present time, and if you want really to have a definition whichgives some right and some entity to a citizen of the Commonwealth, as different from acitizen of a state, I think you ought to do it in some way by definition.

END QUOTE5.


Mr. WISE (New South Wales).-As one of those who strenuously denied that there was anecessity to define federal citizenship, I entertain some doubt, as Mr. O'Connor does,10whether this proposal really meets the difficulty. I feel, as he does, that to confer on the

Parliament the power to deal with federal citizenship does not give them the power todefine the citizenship. They can only act within the limits of the Constitution, and,inasmuch as it might be necessary in defining the citizenship to trench in some way on therights of the state, or to limit in some way the citizenship of the state, or to make certain15consequences follow from being citizens of the state, it might be held that the matter is

open to doubt, that any definition passed by virtue of this proposal would be ultravires.

END QUOTE.20Hansard 2-3-1898 Constitution Convention Debates

QUOTEMr. GLYNN-But I want to prevent the Federal Parliament having power to cut down

citizenship. By adopting this amendment you will really limit the effect of the provisionwhich Dr. Quick desires to insert as clause 120A. If you here empower Parliament, from25time to time, to limit the Commonwealth citizenship, you will prevent us subsequentlyenacting in the Bill that Commonwealth citizenship shall be state citizenship, or viceversa, because you are putting it in the power of Parliament to say what citizenship is tobe, although you may subsequently attempt to provide that the citizenship of the state shall

be the citizenship of the Commonwealth, and vice versa.30 END QUOTE.


QUOTE Mr. KINGSTON (South Australia).-

It would be simply monstrous that those who are born in England should in any way35be subjected to the slightest disabilities. It is impossible to contemplate the exclusionof natural-born subjects of this character; but, on the other hand, we must not forget,

that there are other native-born British subjects whom we are far from desiring to see

come here in any considerable numbers. For instance, I may refer to Hong KongChinamen. They are born within the realm of Her Majesty, and are therefore native-born40

British subjects.

Sir EDWARD BRADDON.-Are British treaty ports British territory?

Mr. KINGSTON.-Hong Kong is undoubtedly a British possession, and a Hong KongChinaman is undoubtedly a native-born British subject. Thus, honorable members will seewhat difficulties might arise if the privileges ofcitizenship of the Commonwealth were45extended to all British subjects. If that were done, we should be landed in a difficultyagainst which it is well to provide. I think the very best, thing under all the circumstances isto do-what is recommended by Dr. Quick, and give to the Federal Parliament power to,legislate on this subject as occasion arises. I have no fear whatever but that they will makewise provisions on the subject-provisions uniform throughout the Commonwealth-for50extending to all British subjects those privileges which they ought to possess, while at thesame time safeguarding the rights of the Commonwealth.


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END QUOTE.


QUOTE Mr. SYMON

The object of all who are represented here is that the Union of these states is of itself5to confer upon the citizens of the states the rights of citizens of the Commonwealth.

END QUOTE

.Hansard 2-3-1898 Constitution Convention Debates

QUOTE10

Mr. SYMON.-I agree with the honorable member, and I also think it is unlikely that theCommonwealth will seek to derogate from it, but I will not place a power in the hands ofthe Commonwealth which will enable them to derogate from it, and if that is not done itwill be merely a dead letter. Is there any citizen of the Commonwealth who is not already acitizen of the state? State citizenship is his birthright, and by virtue of it he is entitled to the15citizenship of the Commonwealth. When you have immigration, and allow differentpeople to come in who belong to nations not of the same blood as we are, they become

naturalized, and thereby are entitled to the rights of citizenship.

Sir EDWARD BRADDON.-They are citizens if they are British subjects before theycome here.20

END QUOTE.

While the High Court of Australia purported that Heather Hill (Sue v Hill)was not entitled to sitin the Senate the truth is that she was entitled to do so because the moment she settled inAustralia she became a citizen of that State and by this entitled to all Commonwealth rights.25Nothing in the Constitution shows that the High Court of Australia can somehow amend theapplication of the constitution by its judgments, as to allow for this then why have a constitutionat all and have unelected members of the judiciary determine whatever the constitution shall be

from time to time?.30Hansard 17-3-1898 Constitution Convention DebatesQUOTE 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 drifts35through ignorance into, the commission of any act which is unfavorable to the people

having this security, it must in its very essence be a free Constitution. Whatever anyone 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 is40no other way of securing absolute freedom to a people than that, unless you make a

different kind of Executive than that which we contemplate, and then overload yourConstitution 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 daily45determination 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 ushave sought to remove, but every one has sought to strengthen. How we or our work

can be accused of not providing for the popular liberty is something which I hope the

critics will now venture to explain, and I think I have made their work difficult for50

them. Having provided in that way for a free Constitution, we have provided for anExecutive which is charged with the duty of maintaining the provisions of that


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Constitution; and, therefore, it can only act as the agents of the people. We have

provided for a Judiciary, which will determine questions arising under this

Constitution, and with all other questions which should be dealt with by a Federal

Judiciary and it will also be a High Court of Appeal for all courts in the states thatchoose to resort to it. In doing these things, have we not provided, first, that our5Constitution shall be free: next, that its government shall be by the will of the people,which is the just result of their freedom: thirdly , that the Constitution shall not, nor shallany of its provisions, be twisted or perverted , inasmuch as a court appointed by theirown Executive, but acting independently, is to decide what is a perversion of itsprovisions? We can have every faith in the constitution of that tribunal. It is appointed as10the 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

bound to serve. What I mean is this: That if you, after making a Constitution of this15kind, enable any Government or any Parliament to twist or infringe its provisions,

then by slow degrees you may have that Constitution-if not altered in terms-so

whittled away in operation that the guarantees of freedom which it gives your people

will not be maintained; and so, in the highest sense, the court you are creating here,which is to be the final interpreter of that Constitution, will be such a tribunal as will20preserve 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 QUOTE25.

It must be clear that any person who comes from a place that is under the British Crown and wasa person born under the British Monarchy then is a Subject of the British Crown and does nothave and neither can somehow make an oath of alliance or otherwise make an Affirmation to

somehow naturalise because it is and remain to be the same Monarch.30 Lets now have a consideration about what the Court stated;.

Moller v Board of Examiners for Legal Practitioners [1999] VSCA 116 (30 July 1999)QUOTE

Legal practitioners - Admission to practise as barrister and solicitor - Application by35candidate to be excused from taking oath of allegiance - Test for exercise of discretion -Whether applicant prejudiced - Observations on significance of oath of allegiance atadmission of candidates to practice - Supreme Court Rules Ch. II rr. 14.05, 14.06 - LegalPracitce Act1996 (No. 35) s.6(1)(c). Practice and procedure - Application to be excusedfrom taking oath of allegiance refused - Whether order in an interlocutory application -40Supreme Court Act1986 (No. 110) s.17A(4)(b).

END QUOTE.

Moller v Board of Examiners for Legal Practitioners [1999] VSCA 116 (30 July 1999)QUOTE45

6. The appellant now seeks to be admitted to practice in Victoria as a legal practitioner. Thisproceeding, by originating motion filed 23 February 1999, seeks an order under Rule14.06 of Chapter II of the Supreme Court Rules to excuse him from taking the oath ofallegiance prescribed under Rule 14.05. These rules provide:-

"Oaths - Forms 2-14A and 2-14B50

14.05 (1) A person applying to be admitted to legal practice in Victoria shall take the oathof allegiance and an oath of office.


24/37



(2) The oath of allegiance may be in Form 2-14A and the oath of office may be in Form2-14B.

Excuse

14.06 (1) The Court may upon application excuse a person from taking the oath ofallegiance.5

(2) The application shall be made by originating motion and heard no later than 30 daysbefore the first day of the month in which application for admission to legal

practice is to be sought."

7. These rules were passed in furtherance of s.6(1)(c) of the Legal Practice Act1996. S.6(1)provides:-10

"6. Admission to Legal Practice

(1) The Supreme Court may admit a person to legal practice in Victoria if he or she -

(a) meets the requirements of the admission rules; and

(b) pays the admission fee; and

(c) takes the oath, or makes the affirmation, required by the Court."15

8. The application was heard by a judge on 1 March 1999. The appellant supported hisapplication by an affidavit sworn by him on 23 February 1999. The respondent filed nomaterial regarding the matter but argument was presented on its behalf by counsel at thehearing of the application.

9. The grounds upon which the appellant sought to be excused were set out in his affidavit20

and the relevant portions of the affidavit were summarised, but in some detail, in thereasons for judgment of the judge delivered on 10 March 1999. In summary, the appellantsaid he had a conscientious objection to taking an oath of allegiance to the Queenstemming from his sincere and genuine belief that to take an oath is a solemn, serious andsincere act, which should not be undertaken lightly or without full and proper25consideration. His conscientious objection to taking the oath was said to arise from hisbelief that Australia should adopt a republican form of government. He said that he wascommitted to amendment of the Commonwealth Constitution so as to achieve therepublican form of government and was an advocate for that cause and that his advocacyfor an Australian republic would be compromised by his having made an oath of30allegiance to the Queen. The appellant had made a pledge of loyalty to Australia when he

became an Australian citizen in February 1995. It was his experience that advocates foran Australian republic who had sworn an oath to the Queen were accused of hypocrisy.He said that he was genuinely troubled about swearing an oath of allegiance when HerMajesty has little to do with the practical governance of Australia. He swore that he was35genuinely troubled by having to swear an oath, the substance of which he did not actuallybelieve and which was inconsistent with his stated beliefs. There is no suggestion that hisHonour did not accept any of the statements made by the appellant in his affidavit.

10. The judge rejected the application. His Honour's reasons included that, in swearingallegiance to the Queen, the appellant would be doing no more than swearing40allegiance to the Head of State of the country of which he is now a citizen and, in

effect, to Australia. His Honour said that the fact that the appellant is a dedicatedrepublican was not to the point and that the swearing of the oath would not change that


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fact nor prejudice the appellant in that regard. His Honour also said that it wasappropriate that the appellant swear an oath of allegiance to the Head of State of

this country in the same fashion as any other officer of the Court.

11. The appellant now appeals to this Court. His notice of appeal includes grounds that thejudge erred in refusing his application without regard to the matters put before him in5support of the exercise of his discretion to grant the application; in failing to have any orany proper regard to various matters in respect of which his Honour should have

exercised his discretion with regard to the grant of the application, matters such as theappellant's commitment of allegiance upon his formal adoption of Australian citizenship,his conscientious and reasoned objection to swearing a false oath; the fact that the judge10was invested with a discretion to excuse the appellant from taking the oath; and that thejudge erred in deciding that there was no prejudice to the appellant if he took the oath, orthat it was necessary for the appellant to show prejudice which he would suffer in theconsequence of his swearing the oath.

12. When the matter came on for hearing in this Court, the question was raised whether the15appellant required leave to appeal in that any order refusing the appellant's applicationwas an order "in an interlocutory application"; see Border Auto Wreckers (Wodonga) Pty

Ltd v. Strathdee [1997] 2 V.R. 49; Supreme Court Act1986 s.17A(4)(b). The Courtdecided that it would defer ruling on this question and that it would hear an applicationfor leave, together with the appeal itself. I shall deal with the question whether leave is20necessary later in these reasons.

13. The appellant accepts at the outset that the discretion to excuse compliance with therequirement to take the oath of allegiance is unfettered (Re Miller[1979] V.R. 381 at383-384; Nicholls v. Board of Examiners [1986] V.R. 712 at 720) but contends that thediscretion must be exercised, and exercised judicially. So much may be conceded. But in25considering whether there has been an error in the exercise of judicial discretion, thequestion is to be approached on the basis that "there is a strong presumption in favour of

the correctness of the decision appealed from, and that the decision should therefore beaffirmed unless the court of appeal is satisfied that it is clearly wrong": Australian Coaland Shale Employees Federation v. The Commonwealth (1953) 94 C.L.R. 621 at 627;30Oldaker v. Currington [1987] V.R. 712 at 718. This Court cannot substitute its own viewmerely because it would have exercised the discretion differently. Furthermore, theapplication to be excused from taking the oath of allegiance is not to be treated lightly;Millerat 384.

14. Mr Bevan-John for the appellant began by submitting that the requirement in Chapter II35of the Rules that an applicant for admission to legal practice should swear two oaths wasbeyond the power of the Court and invalid and the appellant was not required,

accordingly, to take the oath of allegiance. The argument, which I confess I had somedifficulty in understanding, appeared to proceed in the following manner: s.6(1)(c) of theLegal Practice Actauthorised the Supreme Court only to require that an applicant take a40single oath; accordingly, the Rules made by the Court were invalid in that (a) two oathswere required, and (b) the Court could not exempt a particular applicant from taking oneonly of those oaths; to do so, it was submitted, would do violence to the enabling wordsofs.6(1)(c). In my view there is nothing in this argument, first because words in thesingular ordinarily include the plural, and secondly because an entitlement in the court to45require the taking of an oath would implicitly include a right to exempt an individualapplicant from doing so. In rejecting this argument, I note that it was not put to the judgeat first instance and, indeed, if it had been correct, there would have been no occasion for

the making of this application in the first place.


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15. The first submission of Mr Bevan-John directed to the merits of the decision appealedfrom was that the judge's reasons would preclude any exemption from ever being granted,since the factors relied on would apply to all candidates, certainly to all immigrants, andon this view the exemptive power would never be applied to an immigrant. I do not agree.It is clear from the structure of the judge's reasons that his Honour gave careful attention5to each of the grounds asserted by the appellant for seeking exemption, including hisconscientious objection, his having taken the citizenship pledge and the prejudice he saidhe would face if he swore an oath of allegiance to the Queen. As Lush, J. Said in Board ofExaminers v. Whalen [1983] 1 V.R. 437 at 442, "No doubt it would be more difficult foran Australian national with [substantial residential] ties to obtain an exercise of the10discretion in his favour than it would be for a person having a single foreign nationality",but I cannot detect in the judge's reasons any suggestion that in his view the exemptivepower in Rule 14.06 could never be applied to an immigrant; nor does that conclusionseem to me to follow from anything in his Honour's reasoning. A part of this submissionwas that his Honour had not in fact exercised the discretion under Rule 14.06(1) at all.15But it is clear from a reading of His Honour's reasons that this submission cannot beaccepted. I should say that most of the submissions made on behalf of the appellant inthis Court would more properly have been addressed to a judge first considering whether

to exercise the discretion to excuse under Rule 14.06(1), rather than to an appellate courtconsidering whether the judge at first instance had erred.20

16. Next Mr Bevan-John made a series of submissions the general purport of which was todiminish the significance of the taking of the oath of allegiance and its position in theLegal Practice Act1996. For example, the submission was made that our legal systemdoes not need an applicant to swear allegiance personally to the Queen, that the oath hasno purpose other than a ceremonial one, and that swearing an oath of allegiance to the25Queen is not required for admission in a number of jurisdictions in Australia and, for thatmatter, New Zealand. It was submitted that it is not desirable for people to take oathsdeclaring the truth of matters they do not believe in or for a legal system to compel the

taking of such oaths. We were reminded that the requirement to take the oath has changedin recent years to permit persons in appropriate cases to be excused from taking the oath30of allegiance.

17. Although there is substance in a number of these individual submissions, they are, in myview, not really to the point in this appeal and of little assistance to the appellant sincethey raise no question of error in the judge's reasons. As Street, C.J. Said in Re Howard[1976] 1 N.S.W.L.R., 641 at 646:-35

"The taking of the oath of allegiance in association with admission topractice is part of the formal ceremony attendant thereon, but the law isclear that the bond of allegiance exists at common law, independently ofwhether the oath be taken or not. The formal taking of the oath hassignificance in a ceremonial, but not a legal, sense. It is customary, on40admission ceremonies, to remind those newly admitted that thesignificance of the oath is that the Sovereign represents the fountainheadof law and justice - the oath is a pledge of service to the symbol of law andjustice ."

And in Miller, at 383, Young, C.J. said:-45

"But it remains important that a candidate for admission should take anoath of allegiance to the Sovereign. Parliament has provided that it is oneof the essential prerequisites for admission to practise. In so providing

Parliament has required a candidate for admission

Documents

100628 Governor General Q Bryce Re Constitutional Matters Etc