7 4 2010 Submission Referendum Council

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p1 7-4-2010INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD

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WITHOUT PREJUDICE

Legal and Constitutional Affairs Committee [email protected]

02-6277 2358

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AND TO WHOM IT MAY CONCERN

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Ref: REFERENDUM ISSUES10.

Sir/Madam,

In this submission I intend to deal with referendum issues but first let me explain myown position.As a (self-educated) CONSTITUTIONALIST I look upon legal matters differently then most15

lawyers/politicians are doing and in the process able to expose the misconceptions that occur so

often.

.

To avoid this SUBMISSION to end up in hundreds of pages I have omitted Authorities but

they can be provided if requested, and they also have been widely published by me in my20books in the INSPECTOR-RIKATI series on certain constitutional and other legal issues.

.

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

up to 5 years imprisonment and had guardianship orders issued over him and then he called mein to take up his fight for JUSTICE and despite up to about 20 lawyers so far involved in the25

case and 6 contempt proceedings out of the total 16 hearing I managed to turn around this case

and criticised all and any lawyers involved for acting unlawfully, etc, then the judicial member,

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

man making clear having 3 lawyers on stand by to take over the case. I then made it clear that nolawyer could represent this man better then I did nor had the competence to do so and neither30

understood the legal including constitutional issues as I did and that my criticism to expose their

rot could not be held against me because I had a duty and obligation to pursue JUSTICE for the

man I represented and challenged anyone to prove this man ever acted unlawfully as it wasmerely a fabrication by the lawyers concerned and no reliable evidence existed whatsoever in

that regard. At the end of the day the administration orders were set aside and the contempt35

proceedings already had been permanently stayed. This is the competence I have to see through

rot and to expose the truth.

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

awoken of a shake up.40

Lets have a look at the 1999 failed REPUBLIC referendum.

The Commonwealth of Australia is constitutionally not a country but a POLITICAL UNION

where by the States (the former colonies) by agreement as like the States in Europe) decided tocombine certain legislative powers and called it the Commonwealth of Australia, as in Europe it

is called EUROPEAN UNION. Both are limited political unions.45


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CONSTITUTIONAL LEGISLATIVE POWERS FLOW CHART [52]

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

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

Prior to Federation, under the British Crown,

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

10

CONSTITUTIONAL LEGISLATIVE POWERS FLOW CHART [51]

See also; Aggregate Industries UK Ltd, R (on the application of) v English Nature & Anor[2002 EWHC908 (Admin) (24 th April, 2002)and Judgments Mark (Respondent) v Mark (Appellant), OPINIONS, OF

THE LORDS OF APPEAL for judgment IN THE CAUSE, SESSION 2005-6 [[2005] UKHL 42 on appealfrom [2003] EWCA Civ 156 [50]15

Colony WA

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

Colony Qld20

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

Colony Vic

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

Province SA & NT

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

Colony NSW30

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

Colony TAS

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

35

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

After federation, under the British Crown,

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

Queensland, Tasmania and New South Wales [12]40


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

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

After federation under the British Crown, the Commonwealth of Australia (federal) Parliament5constitutional powers transferred from the former colonies (now States); South Australia, Victoria, Western

Australia, Queensland, Tasmania and New South Wales & Territories (abolition of parliamentary

sovereignty). [13]

TAKE NOTICE: At federation there is an abolition of parliamentary sovereignty of Commonwealth, State10and Territorian Parliaments & requires approval of State referendum to amend State constitution (including

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

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

15

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

Queensland (State) [1] (Legislative powers)

Victoria (State) [33] (Legislative powers)20

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

NT (Lp) [31]

25

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

ACT (Lp) [29]

Tasmania (State) [28] (Legislative powers)30

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

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

Australia, Queensland, Tasmania and New South Wales & Territories with added legislative powers of35successful referendums.


British Parliament constitutional powers over colonies; South Australia, Victoria, Western Australia,Queensland, Tasmania and New South Wales [18]40

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

Commonwealth of Australia.

However can be used in aid of Commonwealth and State/Territory legislative provisions. [16]45


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Tasmania (State) [3] (Legislative powers)

ACT (Lp) [4]

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

NT (Lp) [6]

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

10

Victoria (State) [8] (Legislative powers)

Queensland (State) [9] (Legislative powers)

Western Australia (State) [34] (Legislative powers)15


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

20

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

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

State referendums, as is constitutionally required.) [15]25


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

Queensland, Tasmania and New South Wales [19]

30

EUROPEAN UNION constitutional powers transferred from the British Parliament applies to British

amendments of Commonwealth constitution, but is not binding upon existing constitutional powers of theCommonwealth of Australia.

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

35


Tasmania (State) (Lp) [38]

ACT (Lp) [39]40

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

NT (Lp) [41]

45


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Victoria (State) (Lp) [42]

Queensland (State) (Lp) [43]

Western Australia [44] (State) (Lp)5

South Australia (State) (Lp) [45]

******************************************************************************10

The forever shrinking legislative powers of the former colonies, now States, by the illegal confederation

conduct of both State and Federal parliamentarians, from federation onwards. All state reference oflegislative powers and/or amendment to a State constitution without approval by way of State referendum

remains to be ULTRA VIRES, and so without legal force. [47

15

HANSARD 10-03-1891 Constitution 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 longersupreme. Our parliaments at present are not only legislative, but constituent bodies. They have not only thepower of legislation, but the power of amending their constitutions. That m ust disappear at once on the20abolition of parliamentary sovereignty. No parliament under a federation can be a constituent body; it willcease to have the power of changing its constitution at its own will. Again, instead of parliament being

supreme, the parliaments of a federation are coordinate bodies-the main power is split up, instead of beingvested 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 which25towers above all powers, legislative and executive, and which is the sole arbiter and interpreter of the

constitution. END QUOTE [48]

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THIS IS WHAT WE END UP WITH [56]

[46] 12-2-2010

Mr G. H. Schorel-Hlavka 35

CONSTITUTIONALIST, Author

Publisher, Consultant, Attorney

MAY JUSTICE ALWAYS PREVAIL

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.

When then the EUROPEAN UNION on basis of its constitution enacts a law then it is

applicable to all States within its POLITICAL UNION , which are countries such as The

Netherlands, Britain, France, Germany, etc, etc.All laws of those countries therefore are subject to any constitutional powers the EUROPEAN5

UNION issues albeit any existing constitutional legislation of each country cannot be affected.

As such The Commonwealth of Australia Constitution Act 1900 (UK) is free from any

interference of the EUROPEAN UNION legislation albeit any EUROPEAN UNION

legislation that is COMPLIMENTARY The Commonwealth of Australia Constitution Act1900 (UK) is applicable. As such, any laws the British Parliament may enact in relation to the10

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

EUROPEAN UNION. Actually as I understand it Queensland is proposing to have a new

constitution in place but what it seems to fail to understand is that this new constitution would be

subject to any EUROPEAN UNION legislation that is in place and that would be in place infuture, where as the colonial Queensland constitution isnt.15

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

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

the Colonies became States and by this were subject to all and any amendment of its State

constitutions would be only valid if approved by a State referendum. The abolition of theQueensland Upper House never was approved by a State Referendum and as such for20

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

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

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

the Queensland State electors would fail because it is not a proposed amendment of the25

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

cannot be valid as a referendum.

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

Queensland, Mr Peter Beattie on 1 September 2003 setting out why the judgment against Pauline30Hanson and David Attridge was legally defective. On 30 September 20-003 I published this

correspondence and relevant material in my book INSPECTOR-RIKATI on CITIZENSHIP

and provided copies also to Pauline Hanson and her sister Judy Smith for the upcoming hearingin the Queensland Criminal Court of Appeal. Subsequently the Supreme Court of Queensland

ruled precisely as I had set out in my book and set aside the convictions.35

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

have their title but in my view often havent got a clue what they are talking about. Because a

person has law degrees doesnt mean the person is a CONSTITUTIONALIST in fact generallyhaving a law degree means the person lacks any ability to be a CONSTITUTIONALIS!

.40

Let me give a simple explanation;The 1988 constitution commission ASSUMED that the Commonwealth had legislative powers

as to CITIZENSHIP and each and every person who is to be come a member of the bar of aSupreme Court must have Australian citizenship. Well, fancy this there is no such thing as a

nationality Australian citizenship and any lawyer who does not understand and comprehend45

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

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

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

legal issues I published numerous books about this and even more proved in court I knew what I50

am talking about as on 19 July 2006 after a 5 year epic legal battle between the Commonwealth


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of Australia and myself I defeated the Commonwealth of Australia comprehensively and not a

single Attorney-General had challenged my numerous submissions based on constitutional

issues.

.Constitutionally Australian citizenship is derived AUTOMATICALLY from having5

obtained State citizenship and anyone not understanding this should not practice law!

.

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

sections of the constitution and no more and cannot amend the pre-amble or the British Crownapplication to the commonwealth of Australia and so neither interfere with Australians being10

British nationals under the British Crown.

.

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

referendum was utter and sheer nonsense..15

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

.

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

own constitution but States could only amend their constitution by within s.123 submitting forthe approval of State electors a proposed amendment. Queensland failed to do so with the20

purported abolition of its Upper house and within s.41 of the (federal) constitution not a single

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

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

citizenship by this AUTOMATICALLY obtained Commonwealth citizenship also known as25

Australian citizenship. Now translate this back as to Aboriginals voting in federal elections and

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

also in 1901..

As such the 1967 referendum to amend s.51(xxvi) as to include Aboriginals purportedly so they30could obtain Commonwealth franchise was a con-job and indeed in the 1950s the then Federal

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

then a new subsection needed to be implemented as to avoid the baggage associated withs51(xxvi) as it then stood for.

.35

S.51(xxvi) purpose was to DISCRIMINATE against what the Framers of the Constitution

held to be inferior coloured races and the Framers of the Constitution made clear that

Aboriginals were to be equal to other Australians (s127 purpose must not be misunderstood inthat regard) The 1967 referendum was not for so far I understand it about changing this section

as to how it applies to inferior coloured races such as to discriminate against Chines, Japanese,40

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

s.51(xxvi) could not be the vehicle for this because it was a section that was to legislate adverseto a inferior coloured race and not to legislate against the general community!

The amendment of s.51(xxvi) therefore could not provide for the Commonwealth to provide45

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

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

race while the opposite meaning for another race. As the referendum didnt propose to amends.51(xxvi) as to have a different application to all and any race, not being Aboriginals, then

clearly the amendment of s.51(xxvi) must be deemed to have been that it only permitted the50

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


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Neither can it be deemed that as I understood a former judge of the High Court of Australia

promoted that this section of race applies to minority groups such as homosexuals as this

simply was never as such intended as it was limited to inferior coloured race.

More over, when for example considering the Northern Territory Intervention, this isunconstitutional in that the Framers of the Constitution made clear that any legislation within5

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

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

other Aboriginals even if it was say a doctor or lawyer living in Melbourne, as then their property

rights also would be gone..10

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

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

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

provisions..15

Fancy to have politicians dealing with a constitutional amendment they havent got a clue how it

applies. Fancy having a group of people getting together to consider the proposed amendment of

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

its meaning and application..20

I could state constitutional powers within each House of Parliament not even the clerk of the

House of Representatives or Senate ever knew existed and is not mentioned in any standing

orders even so it is embedded in the constitution!.

The issue therefore is that you cannot have some temporary advise committee that may lack any25

understanding about the true meaning and application of the constitution but you need a long

term permanent body.

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

and how it applies in relation to s.85, etc.30.

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

constitutionally applicable as it did in the Pochi case, the Sue v Hill case, the MABO case, theSykes v Cleary case and not to forget the 14 November 2006 so called WorkChoices case, as

well as many other cases.35

We even had a judge of the High Court of Australia refusing to hand down a decision upon the

basis he didnt know the constitutional issue concerned!

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

any political influence, and that this body provides anyone with the same advise FREE OF40

CHARGE. Meaning that if the High Court of Australia has a constitutional issue to be decided itcan draw upon the extensive information it can obtain from the OFFICE-OF-THE-

GUARDIAN and then has its own legal research to perhaps further check the details but at leastnever again will a judge of the High Court of Australia refuse to hand down a judgment. As such

the need for a permanent body exists, as constitutional matters are ongoing dealt with by the45

courts.

.

Because as I so often proved in court that lawyers involved in cases do not even realise the truelegal meaning of legislation let alone constitutional provisions and so embark upon a litigation

trial that could from onset have been avoided it would be utter and sheer nonsense to claim that50

only lawyers could be in the OFFICE-OF-THE-GUARDIAN as there is a need to have


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ordinary people who use common sense to be involved. I have published about this in the past

extensively. As is for example in a country like Iran, any PROPOSED legislation, not just

proposed amendments to the constitution, should be checked for its constitutional validity. This

however the Commonwealth of Australia has failed to do since federation and so also the States.For example all this nonsense about s.51(xxxvii) reference of legislative powers is misconceived5

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

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

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

of legislation it all should be appropriately checked for constitutional validity and not thatMembers of Parliament vote on a bill and/or proposed amendment of the constitution not having10

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

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

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

associate with referendums and/or with the issue of legislation I view that the cost of maintainingan OFFICE-OF-THE-GUARDIAN would be a lot cheaper in that regard also. I have in the past15

published how this OFFICE-OF-THE-GUARDIAN could operate free of political bias.

.

Lets refer back to the case I mentioned above where I represented a man who had been dragged

through a total of 16 hearings and yet, as I proved there never even any jurisdiction existed fromonset. I found that the mans objections upon constitutional grounds were blatantly disregarded20

and by this taxpayers end up feeding a protracted VEXATIOUS litigation that could have been

avoided from onset.

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

set outs) but must not be held to refer to all relevant issues but merely seeks to indicate that a25

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

.

Awaiting your response, G. H. Schorel-Hlavka

Documents

7 4 2010 Submission Referendum Council