Constitutional Legislative Powers Etc

Page 1
TO WHOM IT MAY CONCERN
All state constitutions as well as the federal constitution are beyond powers of the respective
Parliament to enact legislation for it to amend it or otherwise. What however a Parliament can do
is not to pass a Bill but to pass a proposal to amend the constitution! In State environment the
State electors can then veto or approve it in a State Referendum and in the Commonwealth
environment the Commonwealth lectors then can veto or approve it by referendum.
.
.
HANSARD 17-2-1898 Constitution Convention Debates
QUOTE Mr. OCONNOR.-
We must remember that in any legislation of the Commonwealth we are dealing with the
Constitution. Our own Parliaments do as they think fit almost within any limits. In this case
the Constitution will be above Parliament, and Parliament will have to conform to it.
END QUOTE
.
QUOTE Mr. BARTON.-
The position with regard to this Constitution is that it has no legislative power, except
that which is actually given to it in express terms or which is necessary or incidental to
a power given.
END QUOTE
.
QUOTE
Mr. HIGGINS.-No, because the Constitution is not passed by the Parliament.
END QUOTE
.
Prior to the federation colonial Parliaments had the powers to amend their own constitutions as
they were sovereign Parliament but they became constitutional Parliaments by federation.
.
QUOTE
Dr. COCKBURN: All our experience hitherto has been under the condition of
parliamentary sovereignty. Parliament has been the supreme body. But when we
embark on federation we throw parliamentary sovereignty overboard. Parliament is
no longer supreme. Our parliaments at present are not only legislative, but constituent
bodies. They have not only the power of legislation, but the power of amending their
constitutions. That must disappear at once on the abolition of parliamentary
sovereignty. No parliament under a federation can be a constituent body; it will cease
to have the power of changing its constitution at its own will. Again, instead of
parliament being supreme, the parliaments of a federation are coordinate bodies-the
main power is split up, instead of being vested in one body. More than all that, there is
this difference: When parliamentary sovereignty is dispensed with, instead of there
being a high court of parliament, you bring into existence a powerful judiciary which
towers above all powers, legislative and executive, and which is the sole arbiter and
interpreter of the constitution.
END QUOTE
.
Chapter 000X Page 1

INSPECTOR-RIKATI® about the BLACK HOLE in the CONSTITUTION-DVD
A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0
PLEASE NOTE: You may order books in the INSPECTOR-RIKATI® series by making a reservation, by fax
0011-61-3-94577209 or E-mail INSPECTOR-RIKATI@schorel-hlavka.com See also www.schorel-hlavka.com
Page 1
Therefore, as I have canvassed extensively in the past so often any Commonwealth/State
constitution amended or otherwise is ULTRA VIRES (without legal force) if the purported
amendment was without Federal/State referendum.
.
You can try to read up on the following documents that were also before the courts at the time:
http://www.scribd.com/doc/34650214/070118mw-Appeal-Upheld-p1
.
You can also try the National Library of Australia at Canberra for the book:
.
INSPECTOR-RIKATI® & What is the -Australian way of life- really?
A book on CD on Australians political, religious & other rights
ISBN 0-9751760-2-1 (prior to 1-1-2007) ISBN 978-0-9751760-2-3
.
This contains all relevant details of the case, see also
.
http://www.scribd.com/doc/24673459/060719gh-Address-Part-1-v7
.
.
.
That should give you a start albeit there was a NOTICE OF CONSTITUTIONAL MATTERS,
etc.
.
http://www.scribd.com/doc/34693456/FORM69-78B-2signed
.
The book was published before the hearing as to avoid prohibition because of the sensitive issues
involved. The court refused to permit me to have a copy of the transcript and copy of the video
recording etc.
As such the book publishing all relevant material and the orders also will show what the case was
about.
.
QUOTE
Mr. BARTON.- Of course it will be argued that this Constitution will have been
made by the Parliament of the United Kingdom. That will be true in one sense, but not
true in effect, because the provisions of this Constitution, the principles which it
embodies, and the details of enactment by which those principles are enforced, will all
have been the work of Australians.
END QUOTE
.
QUOTE
Mr. BARTON.- Having provided in that way for a free Constitution, we have
provided for an Executive which is charged with the duty of maintaining the
provisions of that Constitution; and, therefore, it can only act as the agents of the
people.
END QUOTE
.
Chapter 000X Page 2
Page 1
QUOTE
Mr. DEAKIN.- In this Constitution, although much is written much remains
unwritten,
END QUOTE
.
QUOTE Mr. DEAKIN.-
What a charter of liberty is embraced within this Bill-of political liberty and religious
liberty-the liberty and the means to achieve all to which men in these days can
reasonably aspire. A charter of liberty is enshrined in this Constitution, which is also a
charter of peace-of peace, order, and good government for the whole of the peoples
whom it will embrace and unite.
END QUOTE
.
QUOTE
Mr. SYMON (South Australia).- We who are assembled in this Convention are about to
commit to the people of Australia a new charter of union and liberty; we are about to
commit this new Magna Charta for their acceptance and confirmation, and I can
conceive of nothing of greater magnitude in the whole history of the peoples of the
world than this question upon which we are about to invite the peoples of Australia to
vote. The Great Charter was wrung by the barons of England from a reluctant king. This
new charter is to be given by the people of Australia to themselves.
END QUOTE
.
QUOTE
Mr. BARTON.- We can have every faith in the constitution of that tribunal. It is appointed
as the arbiter of the Constitution. . It is appointed not to be above the Constitution, for
no citizen is above it, but under it; but it is appointed for the purpose of saying that
those who are the instruments of the Constitution-the Government and the Parliament
of the day-shall not become the masters of those whom, as to the Constitution, they are
bound to serve. What I mean is this: That if you, after making a Constitution of this
kind, enable any Government or any Parliament to twist or infringe its provisions,
then by slow degrees you may have that Constitution-if not altered in terms-so
whittled away in operation that the guarantees of freedom which it gives your people
will not be maintained; and so, in the highest sense, the court you are creating here, which
is to be the final interpreter of that Constitution, will be such a tribunal as will preserve the
popular liberty in all these regards, and will prevent, under any pretext of
constitutional action, the Commonwealth from dominating the states, or the states from
usurping the sphere of the Commonwealth.
END QUOTE
.
QUOTE
Dr. COCKBURN: All our experience hitherto has been under the condition of
parliamentary sovereignty. Parliament has been the supreme body. But when we
embark on federation we throw parliamentary sovereignty overboard. Parliament is
no longer supreme. Our parliaments at present are not only legislative, but constituent
bodies. They have not only the power of legislation, but the power of amending their
Chapter 000X Page 3
Page 1
constitutions. That must disappear at once on the abolition of parliamentary
sovereignty. No parliament under a federation can be a constituent body; it will cease
to have the power of changing its constitution at its own will. Again, instead of
parliament being supreme, the parliaments of a federation are coordinate bodies-the
main power is split up, instead of being vested in one body. More than all that, there is
this difference: When parliamentary sovereignty is dispensed with, instead of there
being a high court of parliament, you bring into existence a powerful judiciary which
towers above all powers, legislative and executive, and which is the sole arbiter and
interpreter of the constitution.
END QUOTE
.
The term “Local government deals with “local affairs” within the State and “Butterworths
Concise Australian Legal Dictionary” has no constitutional position as to interfere with
constitutional matters and hence it would be an error to regard it as somehow to interpret how the
constitution is applicable.
.
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=
%22thi+act+and+all+law+made+by+the+parliament%22#fn50
QUOTE
Constitutional interpretation
The starting point for a principled interpretation of the Constitution is the search
for the intention of its makers[51].
END QUOTE
.
therefore to interpret how the Constitution applies is to consider the intentions of the framers of
the constitution and not what some lawyers may desire to make out of it a hundred years later.
.
Hansard 20-4-1897 Constitution Convention Debates
QUOTE
Dr. COCKBURN: I have raised this point at every opportunity. I do not wish to take up the
time of the Convention, but I certainly shall move-an amendment, because the clause is not
in accordance with the general provisions of Federation. The States composing the
Federation should have full power to deal with local affairs. Essentially, all external
relations are taken out of their jurisdiction. I do think they ought to have the power
themselves to say what the Constitution under which they live shall be.
END QUOTE
.
QUOTE
Mr. SYMON.-Of course, the absolute control by a state of everything within its own
borders is retained by this Constitution, except in respect to such matters as are
expressly handed over to the Commonwealth.
END QUOTE
.
QUOTE
Chapter 000X Page 4

Page 1
Dr. COCKBURN: I have raised this point at every opportunity. I do not wish to take up the
time of the Convention, but I certainly shall move-an amendment, because the clause is not
in accordance with the general provisions of Federation. The States composing the
Federation should have full power to deal with local affairs. Essentially, all external
relations are taken out of their jurisdiction. I do think they ought to have the power
themselves to say what the Constitution under which they live shall be.
END QUOTE
.
QUOTE
Mr. SYMON.-Of course, the absolute control by a state of everything within its own
borders is retained by this Constitution, except in respect to such matters as are
expressly handed over to the Commonwealth.
END QUOTE
.
Colonial laws were and remained applicable after Federation provided they were not amended
since federation and the Commonwealth in its legislative powers had to observe this. However,
the Framers of the Constitution made clear that the moment the state would amend its colonial
legislation then it no longer had the force of law as such was would be subject to Commonwealth
law for so far the Commonwealth had legislative powers.
.
Laws enacted by Federal/State Parliament never require any referendum to be approved as each
Parliament has the power to legislate within its constitutional powers. Again, Parliament cannot
legislate as to amend the constitution but merely can propose an “amendment” subject to the
approval by a referendum. Therefore it is not a “Bill” as like proposed legislation!
.
Often people speak of two levels of government, being State and Federal but the truth is that it is
rather one level of Government in that the colonial government accepted to split their legislative
powers which generally was that foreign and interstate issues were to be under the federal
legislative powers and local issues under the state legislative powers.
.
Ordinary either a State or the Federal Parliament has legislative powers but not both!
.
The trick is that at time the Commonwealth exercising federal legislative powers may by this have
a conflict with State legislative powers and then and only then Commonwealth legislation will
prevail.
.
.
QUOTE
Mr. GORDON.- The court may say-"It is a good law, but as it technically infringes on
the Constitution we will have to wipe it out."
END QUOTE
.
QUOTE Mr. BARTON.-
The position with regard to this Constitution is that it has no legislative power, except
that which is actually given to it in express terms or which is necessary or incidental to
a power given.
END QUOTE
Chapter 000X Page 5
Page 1
.
QUOTE
Mr. ISAACS.-I am not prepared to answer that question, but when we look at clause 52
we find these governing words on the very forefront of that clause-
That Parliament shall, subject to the provisions of this Constitution, have full power and
authority to make laws for the peace, order, and good government of the Commonwealth.
We see there that the Commonwealth is named as distinguished from the states. We
have our Constitution framed in this way with a Senate to guard what? The interests of the
states, so that the Commonwealth shall not intrude one inch into what is retained as
the executive rights and jurisdiction of the states.
END QUOTE
.
Because the States are created (out of the former colonies) as States within s.106 of the
constitution “subject to this constitution” it means that the States are bound by the legal principles
that are embedded in the constitution!
.
.
QUOTE
Mr. BARTON.-this Constitution is to be worked under a system of responsible
government
END QUOTE
.
QUOTE
Mr. BARTON.- We have simply said that the guarantee of the liberalism of this
Constitution is responsible government, and that we decline to impair or to infect in any
way that guarantee.
END QUOTE
.
QUOTE
Mr. BARTON.- Of course it will be argued that this Constitution will have been
made by the Parliament of the United Kingdom. That will be true in one sense, but not
true in effect, because the provisions of this Constitution, the principles which it
embodies, and the details of enactment by which those principles are enforced, will all
have been the work of Australians.
END QUOTE
.
QUOTE
Mr. BARTON.- Having provided in that way for a free Constitution, we have
provided for an Executive which is charged with the duty of maintaining the
provisions of that Constitution; and, therefore, it can only act as the agents of the
people.
END QUOTE
Chapter 000X Page 6
Page 1
.
QUOTE
Mr. DEAKIN.- In this Constitution, although much is written much remains
unwritten,
END QUOTE
.
QUOTE Mr. DEAKIN.-
What a charter of liberty is embraced within this Bill-of political liberty and religious
liberty-the liberty and the means to achieve all to which men in these days can
reasonably aspire. A charter of liberty is enshrined in this Constitution, which is also a
charter of peace-of peace, order, and good government for the whole of the peoples
whom it will embrace and unite.
END QUOTE
.
QUOTE
Mr. SYMON (South Australia).- We who are assembled in this Convention are about to
commit to the people of Australia a new charter of union and liberty; we are about to
commit this new Magna Charta for their acceptance and confirmation, and I can
conceive of nothing of greater magnitude in the whole history of the peoples of the
world than this question upon which we are about to invite the peoples of Australia to
vote. The Great Charter was wrung by the barons of England from a reluctant king. This
new charter is to be given by the people of Australia to themselves.
END QUOTE
.
QUOTE
Mr. BARTON.- We can have every faith in the constitution of that tribunal. It is appointed
as the arbiter of the Constitution. . It is appointed not to be above the Constitution, for
no citizen is above it, but under it; but it is appointed for the purpose of saying that
those who are the instruments of the Constitution-the Government and the Parliament
of the day-shall not become the masters of those whom, as to the Constitution, they are
bound to serve. What I mean is this: That if you, after making a Constitution of this
kind, enable any Government or any Parliament to twist or infringe its provisions,
then by slow degrees you may have that Constitution-if not altered in terms-so
whittled away in operation that the guarantees of freedom which it gives your people
will not be maintained; and so, in the highest sense, the court you are creating here, which
is to be the final interpreter of that Constitution, will be such a tribunal as will preserve the
popular liberty in all these regards, and will prevent, under any pretext of
constitutional action, the Commonwealth from dominating the states, or the states from
usurping the sphere of the Commonwealth.
END QUOTE
.
Therefore, every state can legislate as it desires within its constitutional State powers provided it
doesn’t offend the legal principles embedded in the constitution.
.
The power to amend the constitution lies with the People, and the People alone.
.
Chapter 000X Page 7
Page 1
The power to amend laws enacted within a constitution lies with the Parliament, and the
Parliament alone.
.
Any law or part thereof that is beyond legislative power is ULTRA VIRES and anyone can
ignore it, but do keep in mind the consequences of doing so when facing the tyranny of the
State/Commonwealth where it is determined to do as it likes.
.
The fact that the 1988 referendum failed to amend the constitution to recognise municipal and
shire councils as a “local government” itself has no meaning other then that it was a failure of a
referendum.
.
Even if the 1988 referendum had never eventuated the State (any of them) had no constitutional
power to create another level of government without first not only amending its constitution but
also the federal constitution.
.
Constitutionally the Westminster Act, the Australia Act 1986 and many other acts have no
bearing upon the meaning and the application of the (federal) constitution because only an
amendment to the Constitution by the British Parliament could achieve this other then part 9 of
the Commonwealth of Australia Constitution Act 1900 (UK).
.
S.128 referendum powers cannot amend the Preamble, nor can it be used to turn the
“POLITICAL UNION” the Commonwealth of Australia into a constitutional monarchy or
republic.
.
Hansard 2-3-1898 Constitutional Convention Debates
QUOTE Mr. SYMON (South Australia).-
That is, for admission into this political Union, which is not a republic, which is not
to be called a dominion, kingdom, or empire, but is to be a Union by the name of
"Commonwealth," and I do not propose to interfere with that in the slightest
degree.
END QUOTE
.
There is a lot more to this but safe to say people should not try to make out or invent things
because of someone or some book publisher having written something because it all cannot
amend the constitution either in meaning or application.
.
When it comes to municipal and shire councils they existed before federation as companies also
and they are entitled to raise revenue associated with services provided to those residing there,
such as the collection of garbage, etc. However, what we have seen is the State government
departing from its responsibilities buy for example placing roads under the control, at least to
some extend, under municipal and shire councils and by this causing those councils to raise more
revenue to pay for what should be paid for by the State.
.
Also, municipal and shire councils are conducting themselves as another level of government that
is unconstitutional but also by this are causing ratepayers to pay for their so to say “tantrums”
such as spending ratepayers monies on issues nothing to do with ratepayers services and an
example is mayor Robert Doyle (Melbourne) going overseas handing out gold cufflinks to other
mayors.
.
Chapter 000X Page 8
Page 1
As municipal and shire councils are an extension of the State government but are corporations
then they cannot have legislative powers as such either. You hear about a council banning
smoking in public which clearly is an absurdity. For the record I gave up smoking some 23 years
ago (going cold turkey) after smoking two packets of cigarettes a day but I still view people have
a right to smoke in public as much as I have the right not to do so.
.
Therefore the issue is that municipal and shire councils should be limited to what really is
representing ratepayers interest and in Banyule (Melbourne) an about $43 million wave pool for a
landlocked council to me is a gross absurdity and has nothing to do with looking after municipal
residents.
.
In August 2008 I was issued with an infringement notice for exceeding parking of 3 hours and the
council forwarded me with a photo showing the yellow mark on my tyre, when I disputed I had
exceeded the 3hr limit.
The council lawyer got involved and he made clear my appeal was dismissed as I was recorded
having been parked from “11.55am and the vehicle reported at 2.24pm”
QUOTE 081127 complaint
QUOTE 4-9-2008 COMPLAINT
WITHOUT PREJUDICE
Mr Simon McMillan, Chief Executive Officer (Banyule City Council) 4-9-2008
http://www.banyule.vic.gov.au Fax 94991391
.
Cc; Cr Wayne Phillips (Mayor) & other councillors (Banyule City Council)
.
Ref; purported traffic/parking violation. Your ref BS30/01/004 Doc Id 480529
. AND TO WHOM IT MAY CONCERN
Sir,
Thank you for the 29 August 2008 response via Mr David Clarkson Municipal Laws
Coordinator albeit I do not agree with the content thereof in general.
END QUOTE 4-9-2008 COMPLAINT
.
I now quote my 18-11-2008 third complaint;
QUOTE 18-11-2008 COMPLAINT
By way of 29 August 2008 response Mr David Clarkson Municipal Laws Coordinator sought to
justify that
END QUOTE 4-9-2008 CORRESPONDENCE
The reporting officer has both recorded and advised me that the thread of your tyre was
marked at 11.55am and the vehicle reported at 2.24pm after the officer determined that the
vehicle had not moved within this time frame.
Before embarking upon the next issue of time calculations I must make it very clear that I use the
calculations of how I was taught in first grade of primary school when growing up in The
Netherlands and perhaps Banyule City Council may wish to enlighten me that my kind of time
calculations is incorrect as to Australian standards, but I doubt Banyule City Council will succeed
in this.
.
I also noted that you refer to the time frame of 11.55 to 2.24 pm now lets see what 3 hour time
frame this includes;
12 hour clock 24 hour clock
11.55 am till 12.55 pm = 1 hour 11.55 am till 12.55pm = 1 hour
Chapter 000X Page 9
Page 1
12.55 pm till 1.55 pm = 1 hour 12.55 pm till 13.55 pm = 1 hour
1.55 pm till 2.24 pm = 29 minutes 13.55 pm till 14.24 pm = 29 minutes
---------------- ----------------
Total time = 2 hours 29 minutes = 2 hours 29 minutes
.
QUOTE 4-9-2008 CORRESPONDENCE
Council in accordance with Section 24(1) has reviewed the decision to serve the
infringement notice and after due consideration has determined the above vehicle was
reported for an offence of overstaying in a 3 P time restricted area at the Greensborough
Plaza Car Park.
.
Despite that it should be clear to even a first grader of a primary school that 2-hours 29-minutes is
less then 3 hours nevertheless Banyule City Council now persist in taking the matter to court
about the alleged 22 August 2008 infringement regardless of my correspondence since 27 August
2008 on this matter.
Is this just to waste ratepayers moneys on feeding lawyers for vexatious litigation?.
As for your online complaint system, IT STINKS!
END QUOTE 18-11-2008 COMPLAINT
QUOTE 081127 complaint
.
Finally 3 months after being booked they discovered I wasn’t going to give in and they terminated
the infringement notice.
.
But you may ask how many others paid up not aware the “reporting officer” his supervisor, the
lawyer involved and others all dealing with the complains didn’t know how to calculate three
hours.
.
Simply it would have been three hours from 11.55am is 2.55pm but this seems to be to technical
for all of them to understand.
.
And this is also why nit is so important that we challenge the validity of what municipal and shire
councils are doing because people who do not know better simply pay up or can’t afford to loose
a days pay or more going to a court that is stacked against them.
.
This isn’t justice but TYRANNY!
.
This is not enforcement of any law but rather abuse and misuse of powers.
.
Constitution Act 1975 Act No. 8750-1975 v2000
QUOTE
3. Laws of England to be applied in the administration of justice
(1) Subject to the Imperial Acts Application Act 1922i all laws and statutes in force within
the realm of England on the 25th day of July, 1828 (not being inconsistent with any
law now in force) shall be applied in the administration of justice in the courts of
Victoria, so far as they can be applied within Victoria.
If any doubt arises as to the application of any such laws or statutes in Victoria, it
shall be lawful for the Parliament by Act to declare whether such laws or statutes
shall be deemed to extend to Victoria, and to be in force within Victoria, or to
Chapter 000X Page 10
Page 1
make and establish such limitations and modifications of such laws and statutes
within Victoria as may be deemed expedient in that behalf.
END QUOTE
S. 3(1): Now see Imperial Acts Application Act 1980, No. 9426/1980.
.
The Imperial Act Application Act 1980 (Vic) refers to in his material as the Act Interpretation
Act 1980) in division 2 Habeas Corpus includes;
QUOTE
Division 2—Habeas Corpus
[1640] 16 Charles I c. X
(6) and that from henceforth no court, council or place of judicature, shall be erected,
ordained, constituted or appointed within this realm of England, or dominion of Wales,
which shall have, use or exercise the same or the like jurisdiction as is or hath been used,
practiced or exercised in the said court of star-chamber.
END QUOTE
.
It is in my view better if people were to look at the validity of the legislation rather then to argue
about the issue of the 1988 failed referendum. A failed referendum is not some kind of prohibition
but merely that the amendment was vetoed and hence cannot be applied. In this case as municipal
and shire councils existed before federation it doesn’t make their operations unconstitutional
provided they do not go beyond their corporate powers. As such, the moment they try to operate
as a level of government or otherwise seek to apply penalties as if they are a government then
they are in breach of constitutional provisions. However we know that too often municipal and
shire councils are operating as TERRORIST in finding people, enforcing their own fines, etc.
This is an unconstitutional conduct that must be resisted but so in a proper manner!
.
The following will also make clear that the Framers of the Constitution intended to have CIVIL
RIGHTS and LIBERTIES principles embedded in the Constitution;
QUOTE Mr. CLARK.-
for the protection of certain fundamental rights and liberties which every individual
citizen is entitled to claim that the federal government shall take under its protection and
secure to him.
END QUOTE
.
QUOTE
Mr. Barton.- Our civil rights are not in the hands of any government, but the rights of
the Crown in prosecuting criminals are.
END QUOTE
.
HANSARD 18-2-1898 Constitution Convention Debates (Official Record of the Debates of
the National Australasian Convention)
QUOTE Mr. ISAACS.-
The right of a citizen of this great country, protected by the implied guarantees of its
Constitution,
END QUOTE
.
Page 1
And then consider a “judicial determination” and not a municipal or shire council employee!
QUOTE Chapter Judicial Determination
Chapter Judicial Determination
* Gerrit,
.
**#** INSPECTOR-RIKATI®,
Mr. GLYNN.-If the Federal Parliament does interfere, why preserve state legislation?
Mr. ISAACS.-If we retain this clause as it stands, we shall have done no good by
transferring a part of clause 53 to clause 52.
Mr. GLYNN.-It is inconsistent.
Mr. ISAACS.-Yes, because we decided in transferring the provision in clause 53 to

clause 52 to leave the states full power to legislate until overborne by federal legislation. If
we retain this provision that no state is to be permitted under any circumstances to pass such
a law, then what we have decided to be concurrent legislation becomes exclusive legislation
on the part of the Federal Parliament. On that ground, and for the reasons I have stated, I say
that we ought not to insert this provision as to the equal protection of the laws. That is a
phrase that at once commands approbation, but when it comes to be practically applied it
raises up almost insuperable difficulties. With regard to the other part of the clause, about
due process of the law, there is an equal difficulty. I understand that Mr. O'Connor proposes
to introduce that portion. What necessity is there for it? Under our state Constitutions
no attempt has ever been made to subject persons to penalties without due process of
law.
[start page 688]
That provision was likewise introduced into the American Constitutions to protect the
negroes from persecution, and dozens of cases have been brought in the United States courts
to ascertain what was meant by due process of law. At one time it was contended that no
crime could be made punishable in a summary way, but that in every case there would
have to be an indictment and a trial by jury. That was overruled, and it was held that you
might have process by information. If we insert the words "due process of law," they can
only mean the process provided by the state law. If they mean anything else they seriously
impugn and weaken the present provisions of our Constitution. I say that there is no
necessity for these words at all. If anybody could point to anything that any colony had
ever done in the way of attempting to persecute a citizen without due process of law
there would be some reason for this proposal. If we agree to it we shall simply be raising
up obstacles unnecessarily to the scheme of federation. I hope, therefore, that Mr. O'Connor
will not press his amendment.
The amendment was agreed to.
Mr. OCONNOR (New South Wales). I beg now to move-

Page 1
That the following words be inserted after the word "not"-"deprive any person of life,
liberty, or property without due process of law."
Dr. COCKBURN (South Australia).-Why should these words be inserted? They

would be a reflection on our civilization. Have any of the colonies of Australia ever
attempted to deprive any person of life, liberty, or property without due process of
law? I repeat that the insertion of these words would be a reflection on our civilization.
People would say-"Pretty things these states of Australia; they have to be prevented by a
provision in the Constitution from doing the grossest injustice."
Mr. OCONNOR (New South Wales).-I have mentioned before the reasons, and they
appear to me to be very strong, why these words should be retained. The honorable
member will not deny that there should be a guarantee in the Constitution that no
person should be deprived of life, liberty, or property without due process of law. The
simple object of this proposal is to insure that no state shall violate what is one of the first
principles of citizenship.
Mr. KINGSTON.-Is there not that guarantee now?
Mr. OCONNOR.-I do not think so. We are making a Constitution which is to endure,
practically speaking, for all time. We do not know when some wave of popular feeling may
lead a majority in the Parliament of a state to commit an injustice by passing a law that
would deprive citizens of life, liberty, or property without due process of law. If no state
does anything of the kind there will be no harm in this provision, but it is only right that this
protection should be given to every citizen of the Commonwealth.
Sir JOHN FORREST.-Would not the Royal assent be withheld?
Mr. OCONNOR.-I do not know that it would. The Royal assent is practically never
refused to any Bill that deals with our own affairs, and it is highly improbable that it would
be refused under any circumstances.
Mr. ISAACS.-Suppose a state wanted land for railway purposes, and took it
compulsorily, there being a provision in one of the statutes that the amount to be paid should
be determined by arbitration, would not that be taking the land without due process of law?
Mr. OCONNOR.-No, it would not; and, as an honorable member reminds me, there is a
decision on the point. All that is intended is that there shall be some process of law by which
the parties accused must be heard.
Mr. HIGGINS.-Both sides heard.
Mr. OCONNOR.-Yes; and the process of law within that principle may be [start page
689] anything the state thinks fit. This provision simply assures that there shall be some
form by which a person accused will have an opportunity of stating his case before being
deprived of his liberty. Is not that a first principle in criminal law now? I cannot understand
any one objecting to this proposal.
Dr. COCKBURN-Very necessary in a savage race.

Page 1
Mr. OCONNOR.-With reference to the meaning of the term due process of law, there is
in Baker's Annotated Notes on the Constitution of the United States, page 215, this
statement-
Due process of law does not imply that all trials in the state courts affecting the property
of persons must be by jury. The requirement is met if the trial be in accordance with the
settled course of judicial proceedings, and this is regulated by the law of the state.
If the state law provides that there shall be a due hearing given to the rights of the parties-
Mr. BARTON.-And a judicial determination.
Mr. OCONNOR.-Yes, and a judicial determination-that is all that is necessary.
Mr. ISAACS.-What is the good of it? It is an admission that it is necessary.
Mr. OCONNOR.-Surely we are not to be prevented from enacting a guarantee of

freedom in our Constitution simply because imputations may be cast upon us that it is
necessary. We do not say that it is necessary. All we say is that no state shall be allowed to
pass these laws.
Mr. ISAACS.-Who asks for the guarantee?
Dr. COCKBURN.-The only country in which the guarantee exists is that in which its
provisions are most frequently violated.
Mr. OCONNOR.-I think that the reason of the proposal is obvious. So long as each state
has to do only with its own citizens it may make what laws it thinks fit, but we are creating
now a new and a larger citizenship. We are giving new rights of citizenship to the whole of
the citizens of the Commonwealth, and we should take care that no man is deprived of
life, liberty, or property, except by due process of law.
Mr. GORDON.-Might you not as well say that the states should not legalize murder?
Mr. OCONNOR-That is one of those suppositions that are against the first instincts of
humanity.
Mr. GORDON.-So is this.
Mr. OCONNOR.-No, it is not. We need not go far back in history to find cases in which
the community, seized with a sort of madness with regard to particular offences, have set
aside all principles of justice. If a state did behave itself in that way, why should not the
citizens of the Commonwealth who did not belong to that state be protected? Dr. Cockburn
suggested in so contemptuous a way that there could be no reason for this amendment, that I
got up to state again what had been stated before.
Dr. COCKBURN.-Not contemptuous.
Mr. OCONNOR.-I know the honorable member meant nothing personal, but I thought it
necessary to state the reasons of what, had it not been for the honorable member's statement,
Page 1
would have seemed to be a perfectly obvious proposition. Mr. Clark, of Tasmania, thought
the amendment of importance, and pointed out that it had been put in the United States
Constitution. It should also be put in this Constitution, not necessarily as an imputation on
any state or any body of states, but as a guarantee for all time for the citizens of the
Commonwealth that they shall be treated according to what we recognise to be the
principles of justice and of equality.
Sir EDWARD BRADDON (Tasmania).-The amendment suggested by the Parliament of

Tasmania would have modified this clause so as to, perhaps, make it acceptable. That
amendment having been rejected, I cannot but think that it would be advisable to strike the
whole clause out. I think the clause as it stands is calculated to do harm rather than good. It
will cause friction between the states and the [start page 690] Commonwealth, and also
involve considerable interference with the rights of the several states. If it is to be decided
that a state shall not enforce any law abridging the liberties of other citizens of the
Commonwealth, and it be understood that those citizens are to have this indulgence while
within the state, that will involve some danger. The latter part of the clause, which says
that the state shall not "deny to any person within its jurisdiction the equal protection
of the laws," must involve confusion, and may involve serious disagreement. That is the
way it strikes me.
Question-That the words "deprive any person of life, liberty, or property without due
process of law" proposed to be inserted be so inserted-put.
The committee divided-
Ayes ... ... ... ... 19
Noes ... ... ... ... 23
Majority against the amendment 4
.
*
END QUOTE Chapter Judicial Determination
.
I urge all people to act with caution as to be fool hardening upon the wrong premises that
somehow the failure of the 1988 referendum then provided certain prohibitions is wrong because
the failure did no more but to maintain the meaning and the application of the constitution as it
always was prior to the failure of the referendum!
.
To try to put it in a simplified manner:
If someone knocks on your door and asks to be allowed to enter and you refuse this does this
person then have any more restrictions then he had before asking to enter? Obviously not because
he wouldn’t be permitted to enter unless you gave permission to do so. As such a refusal merely
confirms what already existed! So to say to maintain the STATUS QUO!
.
Gerrit
,
Mr G. H. Schorel-Hlavka
.
Page 1
3-8-2010
.

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Page 1

TO WHOM IT MAY CONCERN

Chapter 000X Page 1

Chapter 000X Page 4

Hansard 8-2-1898 Constitution Convention Debates

Mr. GLYNN.-It is inconsistent.

Mr. ISAACS.-Yes, because we decided in transferring the provision in clause 53 to

[start page 688]

The amendment was agreed to.

Mr. OCONNOR (New South Wales). I beg now to move-

Chapter 000X Page 12

Dr. COCKBURN (South Australia).-Why should these words be inserted? They

Mr. KINGSTON.-Is there not that guarantee now?

Sir JOHN FORREST.-Would not the Royal assent be withheld?

Mr. HIGGINS.-Both sides heard.

Dr. COCKBURN-Very necessary in a savage race.

Chapter 000X Page 13

Mr. BARTON.-And a judicial determination.

Mr. OCONNOR.-Yes, and a judicial determination-that is all that is necessary.

Mr. ISAACS.-What is the good of it? It is an admission that it is necessary.

Mr. OCONNOR.-Surely we are not to be prevented from enacting a guarantee of

Mr. ISAACS.-Who asks for the guarantee?

Mr. GORDON.-So is this.

Dr. COCKBURN.-Not contemptuous.

Sir EDWARD BRADDON (Tasmania).-The amendment suggested by the Parliament of

The committee divided-

Ayes ... ... ... ... 19

Noes ... ... ... ... 23

Majority against the amendment 4

Chapter 000X Page 16

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