20190607-Schorel-Hlavka O.W.B. To Joint Standing Committee On Electoral Matters-Supplement 1

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WITHOUT PREJUDICE
Joint Standing Committee on Electoral Matters 7-6-2019
Inquiry Secretary JSCEM@aph.gov.au em@aph.gov.au
AND TO WHOM IT MAY CONCERN:
SUPPLEMENT 1
Sir/Madam,
I provide this Supplement 1 with a copy of the Section 78B NOTICE OF CONSTITUTIONAL
MATTERS and the written submissions ADDRESS TO THE COURT 19 July 2006 which
was in the AEC v Schorel-Hlavka successful appeals against FAILING TO VOTE, etc. Where
the constitution was not specifically created for myself but for all citizens then where I
successfully objected to part of COMPULSORY voting (not voting itself) in both appeals then
this should also apply to all other electors!
ADDRESS TO THE COURT

County Court of Victoria, Case numbers T01567737 & Q10897630
Your Honour,
Headings (below) are only to give some indications to assist to locate an issue but
are not to be taken to limit matters stated below it neither that other matters stated elsewhere are
not relevant.
HEARING DIFFICULTIES
From onset I have to set out that I have for decades now suffered a hearing loss
which is more then 25% to each ear and for this I use hearing aids but those appear to generally
play up during Court hearings. Without proper functioning hearing aids I lack to hear certain
sounds and as such may misunderstand/misconceive what is being stated/asked by others.
What is an ADDRESS TO THE COURT?
The ADDRESS TO THE COURT is a document that enables the unrepresented Defendant or
for that matter any defendant or litigant to place before the Court in writing what he/she desires
to State, including legal arguments, so that the Court can withdraw into chambers and can at its
own leisure consider matters without having any problems as to pronunciations or misstatements
or other language problems causing frustration to those involved in the proceedings.
The ADDRESS TO THE COURT has been used in all levels of State and Federal Courts,
including the High Court of Australia, involving civil and criminal cases since 1985.
TRANSCRIPT & DENIAL OF REASON OF JUDGMENTS

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During the criminal trial proceedings before Ross J in the County Court of Victoria, in
September 2004 the Defendant Mr Abbott was unrepresented and the Court arranged for daily
transcripts to be provided to Mr. Abbott, at no cost to him. I seek likewise that I am provided
with transcript of the proceedings without cost to me.
During the proceedings before the Magistrates Court of Victoria at Heidelberg on 16 and 17
November 2005 I did also request transcripts to be provided and this was refused as the
magistrate made clear that I could purchase a copy of the audio tape and listen to it.
Having immediately ordered the audio tapes, and paid for them then, at the conclusion of the trial
I was later advised that all audio recording in this case on 16 November 2005 had been without
result. I was advised that the 17 November 2005 recording was successful. However, despite
being advised that audio tape would take about a week, it took about 3 weeks and then to
discover that there appears to have been tampering with the tape causing part to be inaudible or
not at all on the tape.
Considering that I had complained in writing that the orders had been issued showing that I had
failed to vote on 1/1/2005, being New Years day when no election was held, I view that the
suspected tampering of the tape was to make it in audible what was stated by the magistrate in
regard of this. I take this as a very serious matter, as not only was I refused a written Reason of
Judgment in regard to each and every order made, which now I was clearly denied, but the
magistrate never handed down a Reason of Judgment as to why I was convicted and the audio
tape is inconclusive. In my view, this was a grave injustice.
"The most odious of all oppressions are those which mask as justice."
:U.S. Supreme Court Justice Robert H. Jackson, Krulewitch v United States.
Luke 11:21.
"When the strong man fully armed guardeth his own court, his goods are in peace."
R v. Lusink and another; Ex Parte Shaw (1980) 6 FLR 235 and 236
“However in some cases the words or conduct of a judge may be such as to lead the parties reasonably to think
that the judge has prejudged an important question in the case, and then prohibition may issue. Of course, the
court which is asked to grant prohibition will not lightly conclude that the judge may reasonably be suspected of
bias in this sense; it must be "firmly established" that such a suspicion may reasonably be engendered in the
minds of the parties or the public, as was made clear by the court in R v Commonwealth Conciliation and
Arbitration Commission; Ex Parte Angliss Group (1969) 122 CLR 546 at 553-4, in the passage cited in R v
Watson; Ex Parte Armstrong (132 CLR at 262).”
“The critical question, however, is not whether a judge believes he or she has prejudged a question, but whether
that is what a party or the public might reasonably suspect has occurred (see per Lord Denning MR in
Metropolitan Properties Co. (FGC Ltd v Lannon (1969) 1 QB 577 at 599, a judgement cited with approval
by this court in R v Commonwealth Conciliation and Arbitration Commission; Ex Parte Angliss Group
(1969) 122 CLR 546 at 553; In some circumstances repeated denials of prejudging might well convey the
impression of "protesting to much"...
Where the magistrate refused to hand down a reason of judgment, and so in writing also,
despite specifically requested by the Defendant, then this may indicate the magistrate was bias,
along with his comments that he was not going to consider “citizenship” issue as part of grounds
of the OBJECTION TO LEGAL JURISDICTION, even so this was also critical to any
decision to INVOKE LEGAL JURISDICTION or not.
This Court may hear matters DE NOVO but ought to be careful not to make the same or similar
errors and rob the Defendant of a FAIR and PROPER trial.
UNREPRESENTED DEFENDANT A SELF EDUCATED “CONSTITUTIONALIST”

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The matter before this court is a very complex and serious matter, as the end result could be a
criminal conviction. The unrepresented Defendant native language is Dutch and the Defendant
has not had any formal education in the English language and neither in legal studies. Hence, the
Defendant in that way is disadvantaged to some degree while on the other hand this was to his
benefit in that as a self trained “constitutionalist” he has been able to understand constitutional
provisions without being, so to say, brainwashed by legal fictions and other incorrect perceptions
that exist.
Andrei Sakharov, Authority quote: (http://quotes.liberty-tree.ca/quote/andrei_sakharov_quote_30a9)

Freedom of thought is the only guarantee against an infection of people by mass myths,
which, in the hands of treacherous hypocrites and demagogues, can be transformed into
bloody dictatorships.
Alexander Hamilton, Authority quote: (http://quotes.liberty-tree.ca/quote/alexander_hamilton_quote_71c2)

No legislative act contrary to the Constitution can be valid. To deny this would be to affirm
that the deputy (agent) is greater than his principal; that the servant is above the master;
that the representatives of the people are superior to the people; that men, acting by virtue
of powers may do not only what their powers do not authorize, but what they forbid. It is
not to be supposed that the Constitution could intend to enable the representatives of the
people to substitute their will to that of their constituents. A Constitution is, in fact, and
must be regarded by judges as fundamental law. If there should happen to be a
irreconcilable variance between the two, the Constitution is to be preferred to the statute.
Fredrich August von Hayek, Authority quote: (http://quotes.liberty-tree.ca/quotes_by/fredrich+august+von+hayek)

The greatest danger to liberty today comes from the men who are most needed and most
powerful in modern government, namely, the efficient expert administrators exclusively
concerned with what they regard as the public good.
Robert Lindner, Authority quote: (http://quotes.liberty-tree.ca/quote/robert_lindner_quote_a79f)

Authority has every reason to fear the skeptic, for authority can rarely survive in the face of
doubt.
Friedrich Nietzsche, Authority quote: (http://quotes.liberty-tree.ca/quote/friedrich_nietzsche_quote_3039)

Distrust everyone in whom the impulse to punish is powerful.
George Orwell, Authority quote: (http://quotes.liberty-tree.ca/quote/george_orwell_quote_304c)

At any given moment there is an orthodoxy, a body of ideas which it is assumed all right-
thinking people will accept without question. It is not exactly forbidden to state this or that
or the other, but it is “not done”… Anyone who challenges the prevailing orthodoxy finds
himself silenced with surprising effectiveness. A genuinely unfashionable opinion is almost
never given a fair hearing, either in the popular press or in the highbrow periodicals.
Lysander Spooner, Authority quote: (http://quotes.liberty-tree.ca/quote/lysander_spooner_quote_654e)

And the so-called sovereigns, in these different governments, are simply the heads, or
chiefs, of different bands of robbers and murderers.
Lysander Spooner, Authority quote: (http://quotes.liberty-tree.ca/quote_blog/Lysander.Spooner.Quote.DEEB)

Our constitutions purport to be established by 'the people,' and, in theory, 'all the people'
consent to such government as the constitutions authorize. But this consent of 'the people'
exists only in theory. It has no existence in fact. Government is in reality established by the
few; and these few assume the consent of all the rest, without any such consent being
actually given.
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Voltaire, Authority quote: (http://quotes.liberty-tree.ca/quote/voltaire_quote_312a)

...So long as the people do not care to exercise their freedom, those who wish to tyrannize
will do so; for tyrants are active and ardent, and will devote themselves in the name of any
number of gods, religious and otherwise, to put shackles upon sleeping men.
Ludwig von Mises, Authority quote: (http://quotes.liberty-tree.ca/quote/ludwig_von_mises_quote_bca5)

This, then, is freedom in the external life of man -- that he is independent of the arbitrary
power of his fellows.
Daniel Webster, Authority quote: (http://quotes.liberty-tree.ca/quote/daniel_webster_quote_3141)
The contest, for ages, has been to rescue Liberty from the grasp of executive power.
Edward Zehr, Authority quote: (http://quotes.liberty-tree.ca/quote/edward_zehr_quote_7281)
I wouldn't call it fascism exactly, but a political system nominally controlled by an
irresponsible, dumbed down electorate who are manipulated by dishonest, cynical,
controlled mass media that dispense the propaganda of a corrupt political establishment can
hardly be described as democracy either.
Ronald Reagan, Authority quote: (http://quotes.liberty-tree.ca/quote/ronald_reagan_quote_73aa)
Freedom is the recognition that no single person, no single authority or government has a
monopoly on the truth, but that every individual life is infinitely precious, that every one of
us put in this world has been put there for a reason and has something to offer. It´s so hard
for government planners, no matter how sophisticated, to ever substitute for millions of
individuals working night and day to make their dreams come true. The fact is,
bureaucracies are a problem around the world.
Immanuel Kant, Authority quote: (http://quotes.liberty-tree.ca/quote/immanuel_kant_quote_a319)
Freedom is independence of the compulsory will of another, and in so far as it tends to
exist with the freedom of all according to a universal law, it is the one sole original inborn
right belonging to every man in virtue of his humanity.
ADMISSION VERSUS CONFESSION
&
INADMISSIBLE EVIDENCE
The Commonwealth Director of Public Prosecutions may rely upon documents or other material
it obtained over the years as evidence, such as perhaps statements made under force of criminal
sanction, where by hindsight no such legal force was permissible. For example, many a person
register with the Australian electoral commission for voting, because they are advised that if they
fail to do so then they can face criminal sanction. The truth is that the Commonwealth of
Australia specifically was denied any right for “compulsory registration and voting” (15-4-1897)
and that it was up to the “desire” of a person to exercise his franchise to vote or not.
It is only by virtue of his citizenship of a state or of a territory

that he has any political rights in the Commonwealth.
The Framers of the Constitution made clear that Section 41 of the Constitution provided a right
to vote, as there was no need to qualify if one was an adult of the age of 21 to vote in federal
elections if one had franchise with a State.

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Still, people are subjected to register with the Australian Electoral Commission under
unconstitutional threat of force (criminal sanctions) and for this any enrolment card must be
deemed to be inadmissible as evidence in those circumstances.
Likewise, any correspondence obtained by the Australian Electoral Commission under a

unconstitutional threat of force, such as a fine, also must be ruled inadmissible for the
Commonwealth Director of Public Prosecutions to be used as evidence, as it was coerced under
deplorable circumstances.
LEGISLATIVE COUNCIL, 21 November 1991, LOCAL GOVERNMENT

(ELECTIONS) BILL, Second reading, Page 1513,
QUOTE
Hon. C. J. HOGG (Minister for Ethnic, Municipal and Community Affairs) -- I
move:
ENROLMENT
ENROLMENT AND CONDUCT OF ELECTIONS
New enrolment provisions are inserted in the Act to provide for a council voter roll
to be drawn in the first instance only from the relevant portion of the State electoral
roll. Any other persons who wish to be included will be required to apply. This
inessence means everyone will apply for enrolment either to the Federal Electoral
Commission, in which case they are included on the Legislative Assembly roll, or
direct to the council. The responsibility will be on those who are not on the State
electoral roll and who seek to vote to apply for enrolment. Voting will be
compulsory for all voters on the roll; therefore provision is made for voters other
than those on the Legislative Assembly roll to be able to apply to be removed from
the roll. The amendments will ensure an up-to-date roll and help to eliminate
duplicate enrolment.
END QUOTE
The problem with this is that constitutionally one can only enrol with a State and then
AUTOMATICALLY qualify as an adult to vote for Federal elections, hence there is no such
thing as to enrol with the Federal Electoral Commission and any legislation enacted by the State
to allow for this is and remains unconstitutional and so ULTRA VIRES.
The Defendant, to his knowledge never registered with the State Electoral Commission as an
elector! Therefore any purported enrolment with the Federal Electoral Commissioner was under
duress and remains unconstitutional.
The Victorian Justice Handbook 1962 page 83:
ADMISSION AND CONFESSIONS.

Admissions.
“In civil cases, statements made by the party to the proceedings or by his authorized agents
are admissible against, but not in favour of, such party, to prove the facts stated.”
Confessions.
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Confessions may be received in criminal matters. No confession which is tendered in

evidence shall be rejected on the grounds that a promise or threat has been held out to the
person confessing unless the judge or presiding officer is of opinion that the inducement
was really calculated to cause an untrue admission of guilt to be made – Evidence Act
1958, section 149
There are two kinds of admissions – admissions in writing and verbal admissions.
In order to allow a written admission to be produced as an exhibit or allowed in, there must
be some adoption of the paper itself. That adoption may be in many ways – by the signing
of the document, by placing a mark on the document or by reading of the document.
If a confession is taken down in writing and signed by the defendant, or its truth
acknowledged by parol, or if it be written by him, then it is put in as an ordinary document
and read to the court. But if the confession is taken down by a person who was present
when the confession was made and is not signed or acknowledged by the defendant the
document is not itself evidence, but may be used by the person who made it to refresh his
memory. If a confession (which is in existence) contains admissible evidence, parol
evidence cannot be given of it: R. v. Kerr (No. 1) (1951). VLR., 212
Comparison between Admissions and Confessions.
ADMISSIONS. CONFESSIONS.
1. Civil proceedings. 1. Criminal proceedings.
2. Need not be voluntary. 2. Must be voluntary.
3. May be made by agent, 3. Usually made only by

counsel or solicitor. Prisoner himself.
For far too long the Commonwealth Director of Public Prosecutions and so also the Australian
Electoral Commission has used its might and so taxpayers funds to bulldoze any defendant as
well as the Courts as to that it can do what it does, and it is well overdue that this is stopped and
we finally have that JUSTICE PREVAILS and the lawyers who have been involved in this kind
of conduct themselves face the reality of criminal charges for this unconstitutional/illegal
conduct as to protect the people against this kind of brutal force.
“DESIRE” to vote cannot be compulsory to vote!
&
Section 245 CEA was and remains ULTRA VIRES at least since 4-12-2002 and for this
also the 2004 FAILING TO VOTE charge has no legal foundation
The Defendant has in fact refused to vote in recent State elections and no prosecutions for this
followed, where the Defendant advised to have objections to vote in State elections! As a matter
of fact the State Attorney-General himself advised that there is no State citizenship!
Without State citizenship there can be no Australian citizenship (Commonwealth citizenship) as
both includes franchise. It is because of Federation that the then Colonies transferred certain
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legislative powers from the Colonies (now States) to the Commonwealth of Australia that by this
obviously the right of a State citizen to vote who shall be their legislators was partly transferred
also to the Commonwealth of Australia by this, hence, no state citizen could therefore be denied
franchise in the Federal arena where such person had obtained State franchise, as Section 41 of
the Constitution protected that right.
At time of Federation and indeed at the time of the Commonwealth of Australia enacting
legislation as to voting, there was no general obligation for anyone to vote. The Commonwealth
of Australia began to make voting compulsory in 1911, this, even so it was not compulsory in the
States. By this, the Commonwealth of Australia unconstitutionally infringed upon the freedoms
of the electors. In the error that it could do so (legislate for compulsory voting) failing to be
aware that it was bound by the liberties existing at the time the Constitution was created, and that
it could not diminish or reduce any rights and freedoms, regardless that any State may have done
so since for its own State elections. Subsequently States commenced to legislate also to make
voting compulsory.
The following quotation of a document published by the Australian Electoral Commission under
the heading, “Compulsory Voting in Australia” by Tim Evans, Director Elections Systems &
Policy, Australian Electoral Commission, 16 January 2006;
• In 1915, consideration was given to introducing compulsory voting for a

proposed referendum. As the referendum was never held the idea wasn’t
pursued.
As such, while initially there was an issue to have this approved by way of Section 128 of the
Constitution referendum, this was never proceeded with.
Hence, it cannot be argued that this compulsory voting was approved by the electors!
While compulsory voting was introduced in 1915 in Queensland, and in the Commonwealth of
Australia federal political environment by way of a Bill in 1924, it nevertheless could not
circumvent the fact that it was not constitutionally permissible.
• The impact was immediate, with turnout at the 1925 election rising to over
91%.
• Victoria introduced compulsory voting in 1926, NSW and Tasmania in 1928,
WA in 1936 and SA in 1942.
• When enrolment and voting at federal elections was introduced for Australian
Aborigines in 1949 it was voluntary, and continued to be so until 1984 when
enrolment and voting became compulsory for all eligible electors.
As the Commonwealth of Australia only could legislate for the whole of the Commonwealth (as
the Framers of the Constitution made very clear during the Debates) and in 1949 the 1967
referendum had not been held, then clearly there was a conflict in that the Commonwealth of
Australia somehow did not make it compulsory for Aboriginals to vote, yet did so (albeit
wrongly) for others.
Indeed, it still does not have it compulsory for those in the Antarctic. As such, it appears the
Federal Parliament legislate upon its wimps rather then to consider what is constitutionally
permissible and appropriate.
In view that the Defendant had from onset opposed the Magistrates Court of Victoria to invoke
legal (federal) jurisdiction and in fact the magistrate on 4-12-2002 made orders to have those
constitutional issues to be addressed then the Commonwealth Director of Public Prosecutions

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clearly had an OBLIGATION to place before the magistrate on 16 and 17 November 2005 the
set out of matters and why the Magistrate then could invoke jurisdiction. This it never did.
Voting as a Civic Duty

• Proponents of compulsory voting argue that voting is a civic duty comparable
to other duties citizens perform, such as taxation, compulsory education and
jury duty.
• Opponents argue that it is an infringement of liberty to force people to vote,
and that the ill informed and those with little interest in politics are forced to
the polls.
• One argument against compulsory voting is that voting can be an onerous
imposition on some citizens. Against this it has been stated by Mr
Christopher Bayliss, in a submission to JSCEM, that:
”All our voting system requires is for a voter to attend a polling booth and
mark some papers as they wish, approximately once every three years. This
does not seem to be an insurmountable burden to be part of a democracy”.
• Another argument is that both the United Nations Universal Declaration of
Human Rights and the United Nations International Covenant on Civil and
Political Rights refer to people’s rights to “freely chosen representatives”. It is
then claimed that a “right” is something that a person posses and chooses to
use, not something produced on demand.
• Article 29 of the Universal Declaration of Human Rights, however, states that
“rights and freedoms” are subject to “duties to the community”, including the
“just requirements of morality, public order and the general welfare in a
democratic society”.
• The Public Interest Advocacy Centre has stated, in a submission to JSCEM,
that:
”There are many things that people do not wish to do and which they would
not do if they were able to exercise “individual freedoms”, but which
parliament has legislated to require. The role of parliament in a parliamentary
democracy includes passing laws to ensure the effectiveness of that
democratic system”.
• For opponents of compulsory voting, the question is about the nature and
extent of the obligations that it is acceptable for the parliament to impose.
13
The writer of this article (published by the Australian electoral commission) clearly never
considered the fact that constitutionally the political liberty could not be compromised, unless a
Section 128 referendum was successful to give such powers to do otherwise.
It is not an argument if the parliament can or cannot legislate to force people to do something that
they may not desire to do but rather is the parliament has in the first place the constitutional
legislative powers to do so!
If there is no such constitutional powers then it is immaterial what the Parliament may desire
unless it first obtains such additional power by way of a Section 128 of the Constitution
referendum
For example, the Commonwealth of Australia may very well desire to legislate to have all driver
licences being the same throughout the Commonwealth of Australia and to ensure that any
conviction in anyone State or Territory is applied against any driver regardless where this driver
resides, but, regardless how sensible this might sound, in the end the Commonwealth of Australia
Page 9
lacks any constitutional powers to legislate for this and therefore it is not relevant if the Federal
parliament desires to provide certain legislation but the first, so to say, port of call is if there is
any constitutional powers to legislate.
The Commonwealth of Australia legislative powers in regard of elections is bound by what is

embedded in the Constitution and this includes “if they desire to exercise their franchise” and
therefore it is not what anyone may deem should be done rather if there is constitutional powers
for it. Nothing is stopping the Commonwealth of Australia to pursue a Section 128 of the
Constitution referendum to make voting compulsory, but unless and until it achieves an approval
as such of the people compulsory voting legislation is and remains ULTRA VIRES.
On 24-3-1897 it was stated; “if they desire to exercise their franchise” and on 15-4-1897 Mr
Gordon proposed to make registration and voting compulsory but this had been rejected and Mr
Gordon then withdrew his submission. Hence voting cannot be made compulsory either. The
word “desire” clearly leaves it up to the choice of the elector to vote or not to vote!
Hansard 24-3-1897 Constitution Convention Debates
Sir GEORGE TURNER: It would never do to allow in this Federal Parliament that those representatives
who are elected upon the most liberal franchise possible should be outvoted by those who would be elected
by a very limited franchise indeed. As this may fairly be regarded as the National House, representing the
people of the various States as a nation, we ought to have uniformity in the franchise. We must leave it to the
Federal Parliament to say what the franchise should be. At the same time, as some colonies have given the
right of voting to those who have not that right in other colonies, it would be unfair and inequitable to take
from any who have the right, and therefore whatever uniformity is determined upon we shall have to
allow the innovation that no person, man or woman, who has the right to vote shall be deprived of
exercising that right, even so far as the elections to the Federal Parliament are concerned. I would go
the length of saying that everyone who has the right in the various colonies, if they desire to exercise their
franchise, should have the opportunity of doing so.
Again
At the same time, as some colonies have given the right of voting to those who have not
that right in other colonies, it would be unfair and inequitable to take from any who have
the right, and therefore whatever uniformity is determined upon we shall have to
allow the innovation that no person, man or woman, who has the right to vote shall be
deprived of exercising that right, even so far as the elections to the Federal Parliament
are concerned.
And
I would go the length of saying that everyone who has the right in the various colonies, if
they desire to exercise their franchise, should have the opportunity of doing so.
“Desire” stands for “an expressed wish”, “option”, “choice”, “request”, etc, not being
compulsory!
Because the Commonwealth of Australia could only legislate in regard of qualifications and
other rights not to minimize but to increase the rights of any person, then clearly any legislation
that is to remove such rights or to force a person to vote against his “desire” must be deemed
unconstitutional, and so ULTRA VIRES. Hence, the Court could not invoke any jurisdiction for
this either, as to deal with any charges of FAILING TO VOTE.
It should be considered also that the State of Victoria recognize the application of the
International Covenant on Civil and Political Rights and as any federal franchise is based upon
State franchise then for this also this is applicable.

Page 10
International Covenant on Civil and Political Rights
Article 1
(For general comments on its implementation see

http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CCPR+General+comment+12.En?OpenDocument)
1. All peoples have the right of self-determination. By virtue of that right they freely determine
their political status and freely pursue their economic, social and cultural development.
PART II
Article 2
1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals
within its territory and subject to its jurisdiction the rights recognized in the present Covenant,
without distinction of any kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.
2. Where not already provided for by existing legislative or other measures, each State Party to the
present Covenant undertakes to take the necessary steps, in accordance with its constitutional
processes and with the provisions of the present Covenant, to adopt such laws or other measures as
may be necessary to give effect to the rights recognized in the present Covenant.
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the violation has
been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto
determined by competent judicial, administrative or legislative authorities, or by
any other competent authority provided for by the legal system of the State, and
to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when
granted.
Article 3
http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CCPR.C.21.Rev.1.Add.10,+CCPR+Gen)
The States Parties to the present Covenant undertake to ensure the equal right of men and women
to the enjoyment of all civil and political rights set forth in the present Covenant.
Article 25
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in
article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen
representatives;

Page 11
(b) To vote and to be elected at genuine periodic elections which shall be by
universal and equal suffrage and shall be held by secret ballot, guaranteeing the
free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
No judgment of any court ever appears to have addressed the numerous constitutional issues
raided by the defendant, and any judgment of the High Court of Australia never either addressed
the scope of issues as the defendant has raised.
The desire by the Commonwealth Director of Public Prosecutions to at all cost score a conviction
regardless of how inappropriately this might be I view never should be a justification for this
Court to appropriately adjudicate matters for so far it can invoke legal jurisdiction, if at all.
In criminal cases, such as for example murder, no Court of law would convict an accused merely
because another person faced with a same charged was previously convicted. Each and every
case must be considered upon its own merits, and if the Commonwealth Director of Public
Prosecutions cannot even overcome the issue of jurisdiction then there clearly never was/is a case
to answer.
As is quoted below
Mr. GORDON.-
Once a law is passed anybody can say that it is being improperly administered, and it
leaves open the whole judicial power once the question of ultra vires is raised.
It therefore cannot be held that while the Magistrates Court of Victoria on 4-12-2002 adjourned
proceedings so constitutional issues could be dealt with by the High Court of Australia to
determine if the legislation objected against upon constitutional grounds could be declared
INTRA VIRES somehow the very legislation being now ULTRA VIRES still continues to
operate against anyone else as if it is INTRA VIRES.
What appears to be is that the Australian Electoral Commission and the Commonwealth Director
of Public Prosecutions have totally disregarded the rule of law and abused and misused the legal
processes to score convictions and otherwise fine people which never was legally justified
because once the Magistrate on 4 December 2002 accepted the submission of the
Commonwealth Director of Public Prosecutions that there were indeed constitutional issues to be
adjudicated upon then the legislative provisions subject to the objections were clearly ULTRA
VIRES and could not be relied upon against any other person either until and unless the High
Court of Australia had declared the legislative provisions subject to constitutional objections to
be INTRA VIRES. This never occurred.
As the Framers of the Constitution made clear that if the legislative provision (it is not law once
it is ULTRA VIRES) remained ULTRA VIRES because the High Court of Australia declines
to declare it INTRA VIRES then at most a Referendum could provide the kind of legislative
powers required to enact such legislation but not retrospective. As such, only legislation passed
after such amendment to the Constitution was provided for by a Section 128 of the Constitution
referendum could be applied but not made retrospective either.
While people often are convicted by retrospective legislation this clearly is contrary to the
intentions of the Framers of the Constitution, who did not want people acting within the law be
made by hindsight criminals. As after all then no one could rely upon what might be the law.
Mr. SYMON.-It is not a law which is ultra vires.

Page 12
And
Mr. SYMON.-Do you think acquiescence would make a law if the law passed by the
Commonwealth Parliament was ultra vires?
Mr. GORDON.-It would until the law was impugned. If the state did not impugn that
law it would remain in force. It is a law, and it could be allowed to be valid by the force of
acquiescence.
And
Mr. SYMON.-It is not a law if it is ultra vires.
Mr. GORDON.-It would be law by acquiescence. It would remain a law until it was
attacked.
And
Mr. HIGGINS.-But suppose they go beyond their power?
Mr. GORDON.-It is still the expression of Parliament. Directly a Ministry seeks to

enforce improperly any law the citizen has his right.
And
Mr. GORDON.-
And
Mr. HOLDER.-I will answer that interjection, which certainly has great weight.
Mr. OCONNOR.-Will the honorable member answer this question: Supposing a law is
affirmed by this process, and afterwards another law involving the same question is
proposed, is that also made good, or must there be a referendum for that?
Mr. HOLDER.-I have two interjections to answer. I will deal first with that of the
Attorney-General of Victoria. In reply to his statement that this makes the law altogether
retrospective, I simply say that the proposal is to make the law retrospective in this sense:
That during the interval throughout which it was, according to the judgment of the court,
ultra vires, the decision of the people afterwards could make it intra vires.
Mr. ISAACS.-That might make persons criminals who were not otherwise criminals. It
might not have been an offence to do a certain thing if the High Court declared the law to
be ultra vires, but if that law was made intra vires from an antecedent date, all the persons
who did that thing might be subject to punishment.
Mr. HOLDER.-I have great respect for the eminent legal authority of the Attorney-
General of Victoria, and he may help me to overcome that difficulty, and attain the
advantage I seek to attain. Mr. O'Connor asks me, if this were adopted, and under a certain
referendum a certain Bill was declared to be intra vires, whether that position would cover
any similar Bill adopted afterwards? My answer to that is this. I wish it [start page 1720]
should do so, that the enlargement of the Constitution should be not merely for the
inclusion of the particular measure which had been passed, but for the inclusion of the
Page 13
particular matter concerning which otherwise that Bill had been, but for the referendum,
ultra vires. I do not profess to be a draftsman, and I gather that the Drafting Committee
have been kind enough to undertake-especially for lay members-to put into proper
phraseology any resolutions which the Convention has by a majority declared to embody
principles which they wish to have included in the Bill. So I am content, if the Convention
adopts my proposition as being an indication of its will, to leave the wording of the clause
as it shall appear finally entirely in the hands of the Drafting Committee, and shall be very
glad of any help they can give to suggest a method of covering what the honorable member
has suggested, so that my intentions my be fully met. do feel that in any question where the
point of the law ultra vires is raised, not the High Court but the people ought to be the final
appeal-that if I or any one else is on the other side of this controversy concerning a
measure, and I take the ground that it is ultra vires or that it is not, the final appeal
concerning what the Federal Parliament may do ought not to rest with the High Court,
which can simply determine it on the dry question of law, but ought to rest with those
people who, themselves, have the right to say whether or not the Constitution shall be
enlarged to take in the particular question at issue. I do not hesitate to affirm that, if we can
place this final appeal in the hands of the people instead of keeping it in the hands of the
High Court, we will have done very much indeed to popularize this measure, not only in
South Australia, but in other colonies. For I do assure honorable members that the presence
of so large a number of lawyers as there are in this Convention has helped to give colour to
the suggestion, which is very widely prevalent, that this Constitution is being made for the
lawyers and for the courts.
Mr. SYMON.-Nonsense!
Mr. GLYNN.-That is pandering to the popular cry.
Mr. BARTON.-I think my honorable friend ought to do his best to dispel any such base
slander as that.
Mr. HOLDER.-I can assure my honorable friend that I will do my best to dispel any
such base slander as that. I am not stating a matter in which I express my own thought or
my own feeling, but I repeat that in what I said just now I am expressing the thought and
the feeling of a great many persons outside the Convention who are not so well informed as
we are. If we can remove a misapprehension, if we can cure a ground of distrust, by
making the people themselves the final arbiters in their own cause, we shall surely be doing
well, and by doing that we will not be endorsing, but will be going the very best way
possible to refuse an indorsement to that opinion which was dissented from just now.
Sir EDWARD BRADDON.-Why not make them the first arbiters, too?
Mr. SYMON.-Why not make them the High Court at once?
Mr. HOLDER.-I have already shown that the adoption of my clause would save a large
amount of time. It is quite impossible that the people can sit as Judges, because the
function of Judges is one thing, and the function of electors of the Commonwealth is quite
another thing. I am not confounding these two. The people are absolutely incompetent to
judge whether a certain law is or is not ultra vires, and I would not dream of committing
that charge to the people, for there are no persons less fit than the general electors-taken all
together on a referendum-of any country to decide whether this or that is true law.

Page 14
Mr. ISAACS.-You say the people accept the position in law; but they are asked whether
they will change the Constitution.
[start page 1721]
Mr. HOLDER.-That is exactly it. I would never dream of asking the people to reverse a
legal decision arrived at by the High Court. I have been specially careful in the form of the
amendment to avoid any such thing. I do not dream that the High Court will on one day say
that a certain Bill is ultra vires, and that the people shall the day after, or some months
after, say the court was wrong. That is not what I suggest. I suggest that the people should
accept the decision of the High Court that the law was ultra vires, but should say it ought
not to be ultra vires-that the Constitution should be enlarged so that such a decision could
not be given again. I do not wish to leave it to the people to say that the decision was
wrong, but to leave them to say that the Constitution should be so enlarged so as to-make
such a decision impossible in the future. That is a different thing from making the people
Judges or giving them a judicial position. I really feel very hopeless as a layman addressing
the Convention on a very technical legal point like this. I quite anticipate-and though this is
not a wise thing to say, I do not mind saying it-I quite anticipate defeat before I sit down.
At the same time, I shall not cease to regret defeat if it comes, nor shall I cease to believe
that this way out, or some other which the Drafting Committee could easily suggest, ought
to be adopted, so as to avoid the possibility of anybody outside saying, with any
appearance of truth, that this is a lawyer-written Constitution.
Where then Section 245 of the Commonwealth Electoral Act 1918 has been ULTRA VIRES, at
least since challenged by the Defendant, albeit it is ULTRA VIRES from when it was originally
enacted as any legislation that is ULTRA VIRES because of being beyond constitutional powers
is then ULTRA VIRES from when it was enacted, then the fact that nevertheless the Australian
Electoral Commission fined tens of thousands of electors itself ought to be a major scandal and
indeed requires a ROYAL COMMISSION. Further the fact that despite this the Commonwealth
Director of Public Prosecutions continued to pursue enforcement of Section 245 of the
Commonwealth Electoral Act 1918 and in deed as is currently before the Court charged the
Defendant with FAILING TO VOTE in the 2004 purported federal election, and even scored a
conviction on 17 November 2005 also underlines that the Commonwealth Director of Public
Prosecutions is using taxpayers funds to employ lawyers to illegally litigate charges for which in
the circumstances there was no legal justification. The onus was upon the Commonwealth
Director of Public Prosecutions to pursue that the High Court of Australia may declare the
legislative provisions INTRA VIRES before any further charges could be pursued, such as in
regard of the 2004 purported Federal election.
The issue is that at least from 4-12-2002 (albeit it was earlier because of the objections made by
the Defendant) Section 245 of the Commonwealth Electoral Act 1918 was ULTRA VIRES and
for this any further litigation or other fines by the Commonwealth Electoral Commission and/or
the Commonwealth Director of Public Prosecutions in regard of the same purported 2001 Federal
election and/or the subsequent purported 2004 Federal election and/or any by election could not
be legally sustained where Section 245 ever since remained ULTRA VIRES.
Any legislative provisions that becomes ULTRA VIRES is so not just in regard of the
person/Defendant who makes the objection but it becomes ULTRA VIRES to the whole of the
Commonwealth of Australia. To every person who otherwise might be subject to this legislative
provisions. It would be utter and sheer nonsense if any legislative provisions could be declared
ULTRA VIRES for one Defendant but not for other Defendant. Commonwealth of Australia
Page 15
legislative provisions must apply to all and any person without discrimination and so it is either
ULTRA VIRES to all people or INTRA VIRES to all people. It would be abhorrent to
contemplate that every person has to obtain in their own right a legal decision as then the High
Court of Australia could be forced to decide tens of thousands of cases governing the same legal
provision. clearly, this is not what is possible. The 1999 HCA 27 Wakim case is a clear example,
where the High Court of Australia declared that the so called Cross Vesting Act indeed was
ULTRA VIRES, and this applied to anyone not just to Wakim!
The Commonwealth Director of Public Prosecutions pursues the courts to convict Defendants
time and again, and obtained this to be done concealing from the Court that Section 245
Commonwealth Electoral Act 1918 in fact was ULTRA VIRES and had not been declared by
the High Court of Australia to be INTRA VIRES.
Foster (1950) S.R. (N.S.W.) 149, at p151 (Lord Denning, speaking on the role of an
advocate)
"As an advocate he is a minister of Justice equally with a judge, A Barrister cannot
pick or choose his clients...He must accept the brief and do all he honourably can on
behalf of his client. I say 'All he honourably can' because his duty is not only to his
client. He has a duty to the court which is paramount. It is a mistake to suppose that
he is a mouthpiece of his client to say what he wants: or his tool to do what he
directs. He is none of those things. He owes his allegiance to a higher cause. It is
the cause of truth and Justice. He must not consciously misstate the facts. He
must not knowingly conceal the truth. He must not unjustly make a charge of
fraud, that is, without evidence to support it. He must produce all relevant authorities,
even those that are against him. He must see that his client discloses, if ordered, all
relevant documents, even those that are fatal to his case. He must disregard the
specific instructions of his client, if they conflict with his duty to the court."
Yet, despite Orders by the magistrate ( ON 4-8-2005) to provide to the Defendant all relevant
material as Section 388 of the CEA1918 was not held applicable, the Commonwealth Director of
Public Prosecutions failed to do so on and after 17 November 2005.
The Commonwealth Director of Public Prosecutions concealed from the Court on 16 and 17
November 2005 that Section 245 was ULTRA VIRES. In fact concealed this time and again so
also from the Courts in other proceedings dealing with charges of FAILING TO VOTE.
Tim Evans, Director Elections Systems & Policy, Australian Electoral Commission
16 January 2006
• Because of the secrecy of the ballot, it is not possible to determine whether a
person has completed their ballot paper prior to placing it in the ballot box. It
is therefore not possible to determine whether all electors have met their
legislated duty to vote. It is, however, possible to determine that an elector
has attended a polling place or mobile polling team (or applied for a postal
vote, pre-poll vote or absent vote) and been issued with a ballot paper.
While the writer relies upon the issue that it can be established if a person attended to a polling
place “possible to determine that an elector has attended a polling place”, the truth is that the
defendant was known to have attended to the Polling Place, and so with his wife, yet no records
of this exist, as none are held. Indeed, the issue of ballot papers neither can be relied upon as
incorrect names are at times marked of and so people who are deemed to have voted in fact have
not and people who are deemed not to have voted in fact did vote.

Page 16
Therefore, any charge of FAILING TO VOTE is not based upon accurate evidence but merely
based upon whatever the Australian Electoral Commission may deem applicable and then the
Defendant is given the onus of proving his/her innocence.
A person my have posted his/her ballot paper and it may never have been received by the
Australian Electoral Commission, beyond the fault of the person having posted the postal vote.
Law of Contract Case law dictates that when an offer is made then the respondent is deemed to
have accepted the offer by mailing the response of the offer of acceptance and the moment the
acceptance has been mailed and this can be confirmed by the Postal Authorities then the Post
Office act as an Agent for the offerer and so the agreement is deemed completed regardless if the
mail of acceptance never arrives. This is applicable unless pre-conditions are set otherwise.
Denning L.J. in Entores Ltd v. Miles Far East Corporation [1955] 2 Q.B. 327.
When a contract is made by post it is clear law throughout the common law countries
that the acceptance is complete as soon as the letter of acceptance is put into the post
box, and that is the place where the contract is made.
The Courts have for long held that if one could not rely upon the Post master to deliver then it
would undermine the confidence of people in the postal services.
It is nevertheless known that many letters and parcels send out via the postal authorities never
arrive at their destination, being it pilfering by employees of the postal authorities, being that
mail is accidentally destroyed by a motor vehicle collision involving a postal authorities vehicle,
being it that a plane containing postal material crashes or otherwise.
Because there is ano system in place that the Australian Electoral Commission can check if a
person has in fact posted a postal vote or not and neither is there any system in place that a
elector having mailed the postal vote can check if it has arrived, then for this also all the
Australian Electoral Commissioner is doing is to make some kind of game out of it all, that you
can be lucky your name is marked off regardless if you voted or not or you might be unlucky
your name was not marked of regardless you may have voted. A person who may have posted a
postal vote may discover that beyond his/her fault the postal vote is not received by the
Australian Electoral Commission and then face litigation and irrespective what in the end may or
may not eventuate the person is already harmed by the unsecured process used by the Australian
Electoral Commission that somehow demands a STAR CHAMBER COURT kind of process
that a person must prove himself/herself innocent. Yet, the Australian Electoral Commission may
very well have received the postal vote but mislaid it or marked of the wrong name and by this
the real culprit is the Australian Electoral Commission itself, but the burden of prove be made
against the elector. This ought never be accepted by a “Court of law”, and it should take the
position that unless the Australian Electoral Commission can prove beyond reasonable doubt its
case there is no case to answer and it should not be tolerated that it can cause criminal
convictions upon innocent people who may have not at all acted illegal or failed to act according
to relevant legal procedures.
16 January 2006
Resource Implications
• Proponents of compulsory voting argue that candidates can concentrate their
campaigning energies on issues rather than encouraging voters to attend a
polling place and vote.
• Opponents see this as wealth transfer, to the advantage of political parties,
while proponents see it as a wealth transfer to the advantage of the
democratic process.

Page 17
• Opponents also argue that resources must be allocated for the enforcement
of compulsory voting – determining whether those who failed to vote have
“valid and sufficient reasons” and penalising those who do not.
• Parties would be anxious to maximise turnout at an election, not only for the
obvious need to secure sufficient votes, but also for the access to public
funding.
• If a candidate secures 4% of the formal vote cast in the electorate for which
they are a candidate, they are funded $1.95 for each formal vote. At the
October 2004 election, the total amount of public funding paid was $41 926
158.91.
And
• Opponents argue that it increases the number of safe electorates and clearly
identifies the marginal electorates on which government and opposition
parties need to concentrate.
• At its most extreme this could lead to “pork barrelling” with increased
government expenditure in marginal electorates and less in safer electorates.
This connects clearly the secret voting to party payments, and defies the intention of the Framers
of the Constitution that even a poor person should be able to be a candidate. Clearly with the
monies coming from funding of $1`.95 per vote, independents have opponent candidates who
can spend up on advertising knowing the party will be paid back on the votes acquired.
What this also means is, that a person residing in a small community may easily be detected as to
his/her voting preferences. In small towns of a few electors, one can basically trace if there were
any voted from that small rural town.
Secret voting is used to fund political parties in general by this, and one of the past TV
commercials showed barking dogs for the election as if this is an educational advertisement for
political purposes.
It undermines the very political liberty of people not having to vote and not having to contribute
financially to any candidate, where as the purported (albeit unconstitutional) obligation to vote
forces any elector to vote and by this ensure funds for the candidate they are giving their first
choice to. As such, the freedom to vote without providing cash out of Consolidated Revenue no
longer exist. People therefore are unconstitutionally force to fund political advertising from
consolidated Revenue, as no option is provided to vote for a candidate but refusing to provide
financial funding relating to that vote. the only current option is to vote informal to prevent usage
of consolidated Revenue to be used for election campaign funding!
16 January 2006
13
Resource Implications
• Proponents of compulsory voting argue that candidates can concentrate their
campaigning energies on issues rather than encouraging voters to attend a
polling place and vote.
• Opponents see this as wealth transfer, to the advantage of political parties,
while proponents see it as a wealth transfer to the advantage of the
democratic process.
People unknown about the payment per vote may vote without intending any payment to be
made to the candidate they list as number one. Others may refuse to vote altogether or vote
informal as to prevent any candidate to obtain monies.

Page 18
Any situation of if they desire to exercise their franchise has therefore been compromised by
this also that to vote means to fund a candidate, where the elector may oppose such payment to
be made.
It also create a situation of corruption where candidates may make any promises as to get
maximum votes, and so maximum payment per vote, regardless that the candidate may have no
intent to honour his/her promises and nothing exist to hold the candidate accountable for his/her
promises.
It therefore corrupts the election process and denies electors of a FAIR and PROPER election.
Objective - subjective
No matter is any judicial officer were or were not to agree with the various issues raised by the
Defendant, including constitutional objections, it cannot be denied that the Defendant throughout
acted in a manner that the purported elections of 2001 and 2004 were ULTRA VIRES due to
failure of proper publication of the proclamation in the Gazette, the defective writs, and
numerous other issues. It then must be considered if it could be held that the Defendant had, if it
were to be deemed there should be a conviction – not that the Defendant seeks to indicate this
could be the end result- a subjective of objective intent to defy legislative provisions or that he
deemed the legislation ULTRA VIRES being contrary to constitutional doctrine embedded in
the Constitution and as such the very element to constitute a criminal offence in any event never
could be deemed to exist.
It ought to be kept in mind also that no person ever has presented such elaborate worked out
presentation as to the constitutional issues involved in the franchise issue.
The lacklustre conduct of the Commonwealth Director of Public Prosecutions to even present to
the Court a appropriate set out of issues before the Court and how constitutionally and otherwise
matters are applicable also ought to underline that the Defendant extraordinary effort to set out
relevant matters in the various ADDRESS TO THE COURT ought to underline that subjective
and objective the Defendant pursued proper application of constitutional provisions, regardless
that the Commonwealth Director of Public Prosecutions may pursue otherwise.
Conduct of the Commonwealth Director of Public Prosecutions in litigation
While since at least 2002 the Commonwealth Director of Public Prosecutions has been fully
aware about the Defendants objections in regard of constitutional issues and in fact on 4
December 2002 took the position to submit to the Magistrates Court of Victoria to order the
matters of constitutional issues to be determined by the High Court of Australia, nevertheless the
Commonwealth Director of Public Prosecutions, for so far the Defendant understand it,
continued nevertheless to pursue and obtained convictions against others it alleged having
FAILED TO VOTE in the 2001 and 2004 purported federal elections.
In my view this is a considerable issue, as if in the end it was found that indeed the elections
were ULTRA VIRES, then the Commonwealth Director of Public Prosecutions has obtained
convictions contrary to its own submission to the Magistrates Court of Victoria on 4 December
2002 that the constitutional issues raised by the defendant should be determined by the High
Court of Australia.
It would mean that perhaps tens of thousands of people were fined and/or convicted where the
Australian Electoral Commission who is instructing the Commonwealth Director of Public
Prosecutions continued their conduct to use unconstitutional legislative provisions and
concealing from others relevant details.
This kind of manipulation and abuse of the legal processes never should be condoned!
If legislative provisions are not declared INTRA VIRES by the High Court of Australia then
they remain, from onset of legislation, to be ULTRA VIRES and this means that knowingly and
Page 19
deliberately the Australian Electoral Commission and for them the Commonwealth Director of
Public Prosecutions engineered an ongoing deception to people involved, including to pervert the
course of justice time and again. If any criminal issue should attract the attention of the Courts
then surely it should be this conduct where the Commonwealth Director of Public Prosecutions
on the one hand itself concede that there are constitutional issues raised by the Defendant that
required an appropriate judicial decision while knowing this then nevertheless continues to score
convictions against others (unbeknown of the legislation being ULTRA VIRES) using the very
legislation already subject to a constitutional challenge, and by this the legislation being ULTRA
VIRES.
While the magistrate on 17 November 2005 ruled he had legal jurisdiction, no magistrate can
overrule an earlier decision of another magistrate which was made upon the submission of the
Commonwealth Director of Public Prosecutions on 4-12-2002 to have the matter adjourned
pending a judicial decision by the High Court of Australia upon constitutional issues.
It is my view, that once the Commonwealth Director of Public Prosecutions made this
submission to the Magistrates Court of Victoria on 4-12-2002 then it should have stayed any
charges against anyone else unless the matter had first been adjudicated by the High Court of
Australia.
If indeed the director of Public Prosecutions and/or the Commonwealth Electoral Commission
since 4-12-2002 pursued any person for allegedly FAILING TO VOTE, despite that the
constitutional validity of the legislation being under a constitutional objection became ULTRA
VIRES, and so wrongly obtained from people to pay the fines advised of and/or continued to
have the Courts convicting people, by concealing from each court that the relevant legislation
was ULTRA VIRES then this is a very serious matter.
It would indicate that the Australian Electoral Commission is not concerned a bit to provide
FAIR and PROPER elections but rather is a power hungry organization not concerned with what
is its statutory obligations and duties and via the Commonwealth Director of Public Prosecutions
has been willing to have innocent people wrongly convicted and by this incurring a criminal
conviction.
I understand that a Mr John Wilson, of NSW, was convicted for FAILING TO VOTE and it
seems therefore that the Australian Electoral Commission and the Commonwealth Director of
Public Prosecutions have placed themselves above the law (so the Constitution) and this may
also be seen to reflect in its conduct towards the Defendant over the years.
I understand that people like Mr Derryn Hinch, radio broadcasters deems it inappropriate for
them to vote because of not wanting to be bias or seen to be bias where they are making public
comments about political parties. Yet, despite the fact that the Commonwealth Director of Public
Prosecutions (for the Australian Electoral Commission) conceded on 4-12-2006 that there
constitutional issues to be adjudicated upon, they nevertheless abused their powers to still
continue to fine people or score convictions.
It is this kind of grandeur and ignorance to a proper conduct that the Defendant so much
encountered so far in the litigation. As shown further also.
Lack of responses by Commonwealth Director of Public Prosecutions
The Defendant does wish to make known to this court that being it ignorance or otherwise there
has been a considerable failure by the Commonwealth of Director of Public Prosecutions to have
a sensible discussion about issues before this Court. Even the submission for proceedings in
regard of the charges to be stayed at least for more then 3 weeks, at the time of writing this part,
was still not responded upon. This is in that regard frustrating as the Commonwealth Director of
Public Prosecutions seems to take the position, as I view it, that they can litigate as they are
getting paid anyhow, no matter the cost to the taxpayers and so can ignore any form of proper
communication to seek to address issues in dispute. This in fact has been the line of conduct by
Page 20
them over the years! One may ask then why should the Court spend it’s time to seek to address
issues if the Commonwealth Director of Public Prosecutions cannot even bother to act
appropriately in communications that ordinary is appropriate between parties in a dispute to seek
to establish the real issues.
http://familyguardian.tax-
tactics.com/Subjects/LawAndGovt/ChallJurisdiction/AuthoritiesArticle/AuthOnJurisdiction.htm
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 destroys
the validity of everything into which it enters, and that it vitiates the most solemn contracts,
documents, and even judgments."
In my view, the Commonwealth Director of Public Prosecutions obtained fraudulently a

conviction in the Magistrates Court of Victoria by not presenting to the Court all relevant
details/information that the Court was required to consider before it could determine a decision
as to the guilt or innocence of the Defendant.
The following applies as much to Federal laws of the Commonwealth of Australia as it does to
federal laws in the USA;
http://familyguardian.tax-
tactics.com/Subjects/LawAndGovt/ChallJurisdiction/AuthoritiesArticle/AuthOnJurisdiction.htm
 The general misconception is that any statute passed by legislators bearing the appearance
of 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
Constitution and 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 name of
law, is in reality no law, but is wholly void, and ineffective for any purpose; since
unconstitutionality dates from the time of its enactment, and not merely from the date of
the decision so branding it. An unconstitutional law, in legal contemplation, is as
inoperative as if it had never been passed. Such a statute leaves the question that it
purports to settle just as it would be had the statute not been enacted.
Since 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. . .
A void act cannot be legally consistent with a valid one. An unconstitutional law cannot
operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to
the fundamental 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.
Sixteenth American Jurisprudence

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

Page 21
The magistrate simply had no option, as he proved to do, to ignore the “CITIZENSHIP” issue
raised by the Defendant, in particularly where the State of Victoria itself implied accepted this
argument, where the State did not pursue charges against the defendant for allegedly FAILING
TO VOTE..
Because the Commonwealth Director of Public Prosecutions had been for several years aware of
the Defendants numerous objections, it was their duty to place before the Court a proper set out,
and in writing, why the Court could invoke jurisdiction. The concealment, as the Defendant
views it, by the Commonwealth Director of Public Prosecutions to do s itself may be deemed
fraudulent conduct as it was tantamount to deceiving the court in if it could invoke jurisdiction or
not.
Sentencing options
While it might be early in the proceedings to start about sentencing option, nevertheless the
Defendant deems it appropriate to consider this at this stage.
Evidence Act 1958 (Vic)

Act No. 6246/1958
With or without conviction, order a fine

A fine is a monetary penalty which can be imposed by the Court. The maximum amount must not
exceed $24,000.
With or without conviction, adjourn the hearing on conditions

If the court has found a matter proven, it may, with or without conviction, adjourn the case for a period of
not more than 5 years. The person can enter into an undertaking on the conditions that they may be
required to reappear before the court on the return date if called upon, to be of good behaviour during
the period of the bond, and any other special conditions that the court thinks fit.
In making such an order, the court would consider:
 rehabilitation
 deterrence (General & Specific)
 the trivial, technical or minor nature of the offence
 circumstances in which it is inappropriate to record a conviction
 circumstances in which it is inappropriate to inflict any punishment other than a nominal punishment
 allowance for the existence of extenuating or exceptional circumstances that justify the court showing
mercy to an offender
Convict and discharge

A court may discharge a person whom it has convicted of an offence after taking into consideration the
matters mentioned in the last paragraph.
Dismiss the charge

A court on being satisfied that a person is guilty of an offence may, (without recording a conviction),

Page 22
dismiss the charge for any of the reasons mentioned in the second last paragraph.
What is clearly an issue in these proceedings by the defendant is that a State Court cannot be
dictated by the Commonwealth how it shall conduct proceedings and impose any penalty,
conviction, etc.
Yet, the Commonwealth Electoral Act 1918 pursues a fine of $50.00 for a conviction and as
such is unconstitutional as it seeks to interfere with the judicial digression judicial officers in
State Courts have. In particularly in regard of the so called “first offenders”.
In that regard, somehow a person convicted for FAILING TO VOTE could end up with a
criminal record and a $50.00 fine, where as someone committing a other criminal offence could
be let of without conviction recorded, etc.
Clearly, this also highlights that it is essential that this Court first address the constitutional
standing of the Commonwealth of Australia to dictate State Court judicial officers what they can
or cannot do, which directly interfere with the judicial independence of State Courts.
The mere fact that the State itself does not pursue to prosecute the Defendant for allegedly failing
to vote in State elections, and the Federal elections after all are of State interest as they are
relating to electing representatives to legislate under the referred powers to the Commonwealth
of Australia, then it is also for this questionable why on earth the Commonwealth Director of
Public Prosecutions nevertheless pursued charges against the Defendant.
The fact that the Defendant as one of his objections of voting in State elections had that he was
not constitutionally an “Australian citizen”, and challenged the validity of the Australian
Citizenship Act 1948 to purport otherwise, as he was never granted State citizenship, as the
Attorney-General himself made clear that it does not exist, then where the state has accepted this,
the Commonwealth Director of Public Prosecutions could not then circumvent the state
acceptance of this as to then pursue the defendant for allegedly FAILING TO VOTE in federal
elections! After all, the elections for Senators are of State interest as it is to represent the State in
the Senate in the Federal Parliament, and as such any charge for allegedly FAILING TO VOTE
in a Senate election is a State issue, as it are State electoral provisions.
While the Commonwealth of Australia may have the operation of Senate elections they are and
remain in principle depending upon State Governors issuing writs! For this, the Commonwealth
of Australia cannot pursue a matter that is essentially a State issue.
The modus operandi might lie with the Commonwealth but it nevertheless in essential issue is a
State issue. As the State has refrained from making any charges against the Defendant as to an
alleged FAILING TO VOTE then the issue arises what are the charges about of allegedly
FAILING TO VOTE? Is the Commonwealth Director of Public Prosecution pursuing in Court,
do they relate to either Senate or House of Representative elections or both?
If the State of Victoria itself does not pursue any charges then can somehow the Director of
Public Prosecutions nevertheless pursue a charge in regard of Senate elections? Or is it just that
the Commonwealth director of Public Prosecutions himself is totally unable to explain what on
earth the charges are really about?
ABUSE OF THE LEGAL PROCESSES
&
THE GAME THAT WAS BEING PLAYED

Page 23
The problem is that Defendants often have no financial resources to engage a lawyer to defend
them against any frivolous and vexatious charge which are an abuse of the legal processes but
faced with an Australian electoral commissioner and lawyers who at cost of the taxpayers can
mount any absurd litigation and regardless how they have abused their powers basically nothing
is there to punish them other then as Gillard J of the Supreme Court of Victoria himself made
clear was to order cost against lawyers involved who are abusing the legal processes. If this is not
applied then lawyers can continue to rampage this Court and continue their terrorising conduct
upon Defendants while earning good money doing so. Where then the Defendant cannot seek
cost, then it should be appropriate that the lawyers concerned pay into the poor box and/or to
some charity organization upon the Courts choice the equivalent of their litigation cost.
While the Defendant pursued to direct his correspondence to the Australian Electoral
Commission, the lawyers involved at the time (Australian Government Solicitors) however wrote
to the defendant that correspondence should be directed to them and not to the Australian
Electoral Commission. This kind of “GAME PLAY” appeared to be very obviously designed to
undermine the Defendants case, as after all, had the Defendant done so then the Prosecutor
(Commonwealth Director of Public Prosecutions) now could have argued that the
correspondence forwarded to the Australian Government Solicitors were not forwarded to the
Australian Electoral Commission and so was not something they could have considered. Hence,
it was for the Defendant critical he did write to the Australian Electoral Commissioner rather
then just to the Australian Government Solicitors.
There is a further considerable issue ion this “GAME PLAY” by the Australian Electoral
Commissioner who was the instructor to both the Australian Government Solicitors and to the
Commonwealth Director of Public Prosecutions, that is while the Australian Electoral
Commissioner instructed the Commonwealth director of Public Prosecution to apply to the court
on 4 December 2002 that the matter be transferred to the High Court of Australia for hearing of
the constitutional based objections raised by the Defendant together with the outstanding
NOTICE OF APPEAL the Defendant had on foot before the High Court of Australia,
unbeknown to the Defendant and so the Defendant understands likewise to the Commonwealth
Director of Public Prosecutions, the Australian Electoral Commissioner had instructed the
Australian Government Solicitors to file a Chamber Summons in 11 February 2002, this even so
not having filed any APPEARANCE once having been served with the NOTICE OF APPEAL
on 22 November 2001. As such it appeared to the Defendant that the Chamber Summons, which
was in fact never served upon the Defendant was filed for no other purpose but to abuse the legal
processes of the High Court of Australia and to , so to say, get the backdoor way into the High
Court of Australia. Once the Chamber Summons was filed, the Australian Electoral
Commissioner obviously never intended to proceed with it, so it appears to the defendant, and
hence it was never served, as it was a “GAME PLAY”. Indeed, the fact that it never was
intended to be proceeded with but merely was a backdoor way in was proven when the
Australian electoral commissioner then on 23 October 2002 filed a NOTICE OF MOTION,
albeit that neither was formally served according to the High Court rules.
So, here we had on 4 December 2002 the Director of Public Prosecutions still on instructions of
the Australian Electoral Commission pursuing a charge against the Defendant and submitting to
the magistrate to transfer the constitutional issues for hearing to the High Court of Australia with
the pending appeal, while the Australian Government Solicitors was concealing from them and
the defendant that then the Chamber Summons and the NOTICE OF MOTION were filed in the
High Court of Australia to prevent the NOTICE OF APPEAL to be heard on its MERITS.
In my view, the Australian Electoral Commissioner should have disclosed this conduct in the
High Court of Australia to the Commonwealth Director of Public Prosecutions, the magistrate
and the defendant. After all, if the magistrate had been aware of this then the magistrate may
have made different orders then now eventuated.
Page 24
In my view, the magistrate was deceived by the conduct of the Australian Electoral
Commissioner.
While the High Court of Australia held that the Defendant on 19 August 2003 was provided with
a copy of the NOTICE OF MOTION as part of the Application Book prepared by the Australian
Government Solicitors, the truth is that this is not the kind of service provided for in the High
Court Rules as to service. The High Court of Australia never formally did dismiss the numerous
objections the Defendant then had placed before the Court and as such the High Court of
Australia never did and could not have invoked legal jurisdiction, and so its orders to dismiss the
NOTICE OF APPEAL without a hearing on its MERITS for not being entitled to be filed is
without legal force (ULTRA VIRES).
At no time did the Commonwealth director of Public Prosecutions go back to the magistrate and
advise the magistrate who made the 4 December 2002 orders that they had made a submission
which the magistrate had granted, but by hindsight they discovered that the Australian Electoral
Commission had deceived them and as such the constitutional issues could not now be heard
with the appeal which the High Court of Australia refused to allow to be heard upon its
MERITS.
As the Commonwealth Director of Public Prosecutions had made the submission in the first
place on 4 December 2002 for a transfer of matters to be heard before the High Court of
Australia together with the then outstanding appeal then it was the duty of the Commonwealth
Director of Public Prosecutions to correct this matter.
It appears to have been a “GAME PLAY” by the Australian Electoral Commissioner to withhold
from the defendant that the CHAMBER SUMMONS and subsequently the NOTICE OF
MOTION was filed in the High Court of Australia as possibly to prevent the Defendant to
oppose the subsequent submission of the Commonwealth Director of Public Prosecutions of 4
December 2002.
Clearly, had the Australian Electoral Commissioner caused the defendant to have been served, as
is the normal legal procedures when an CHAMBER SUMMONS and/or a NOTICE OF
MOTION is filed then the Defendant would have been aware of it on 4 December 2002 and
could have notified the magistrate about this and so the magistrate may have more then likely
handed down different orders then that now were provided.
More then likely, the Australian Electoral Commissioner neither advised the Director of Public
Prosecutions that the Defendant had already indicated to rely also upon RELIGIOUS
OBJECTION as after all it could have jeopardize, as the Defendant perceives it, the
VENDETTA kind of litigation the Australian Electoral Commissioner was pursuing against the
Defendant.
It should not be under estimated how severe matters where the Defendant, not a trained lawyer,
so to say, was exposing all the wrongdoings of the Australian Electoral Commissioner in holding
elections in unconstitutional and illegal manner and conducting elections in a manner as if he had
the private ownership to do as he liked regardless what was legally appropriate.
The issue that ultimately should be explored, if the Court does decide to invoke legal jurisdiction
as to why the Australian Electoral Commissioner concealed from the Commonwealth Director of
Public Prosecutions that the Defendant had raised the issue of RELIGIOUS OBJECTION!
This is why the Defendant perceives the conduct of the Australian Electoral Commissioner to be
as some kind of VENDETTA, where he was deceiving the Courts, deceiving the commonwealth
Director of Public Prosecutions, deceiving the defendant in numerous ways all to seek to obtain
whatever judgment in his favour. Regretfully, experiences proved that the Courts rather then to

Page 25
take their time to deal appropriately with matters were more concerned to please the lawyers and
grand orders which constitutionally and further legally was without justification.
In this case, the Defendant did make known for years to have “religious objections” in regard of
voting in the circumstances then prevailing, besides having other numerous constitutional and
other relevant legal objections, but despite of this, the Defendant nevertheless ended up
convicted on 17 November 2005 in the Magistrates Court of Victoria at Heidelberg, and this
underlines that there appears to be some sick minded mentality that at the taxpayers cost it is
alright for lawyers to abuse the legal processes and score some conviction where none ever ought
to have been as to somehow protect the exposure of the wrongdoings of the Australian Electoral
Commission.
It is the kind of WEAPONS OF MASS DESTRUCTION and “CHILDREN OVERBOARD”
mentality where FICTION is more of their concern then the TRUTH and REALITY.
It is for this also the Defendant has to make elaborate submissions with considerable background
information, and rely upon the content of his past published books, to indicate that this litigation
pursued by the Commonwealth Directors of Public Prosecutions (Prosecutor) has nothing to do
with enforcing Commonwealth law but rather to do with abusing legal provisions to shield the
wrongdoers, such as the Australian Electoral Commissioner.
Few people indeed could have made such extensive and elaborate set out over the years to the
Australian Electoral Commissioner, all be in vain, as the real issue by the Australian Electoral
Commissioner was not, so it appears to the Defendant, to ensure FAIR and PROPER elections
were being held, but to ensure his abuse of power could flourish and curse anyone, such as the
Defendant, who dared to expose his abuse of power and other wrongdoings.
The Defendant takes the position that in the circumstances existing already before the purported
2001 federal election was held there never was any legal justification for any charge of
FAILING TO VOTE to be made against the defendant, and neither so subsequently in regard of
the purported 2004 election, but this all came about because the Australian Electoral
Commissioner in his desire to continue his abuse of power is left unchecked by anyone,
including the Commonwealth Ombudsman and the JSCEM (Joint Standing Committee on
Electoral Matters) as they cite ongoing litigation preventing them to investigate, etc, is left to do
so at unlimited finances at the cost of taxpayers, which the Defendant also is.
It is therefore upon this Court to prove its credibility, and to make clear that it will not condone
and tolerate this kind of preposterous abuse of the legal processes, in particularly not where this
relates to elections going to the core of democracy.
ROYAL COMMISSION
The Defendant submits, that a ROYAL COMMISSION should investigate all matters, as
extensively referred to by the Defendant in his material and other material the commission may
deem relevant, as after all so much is at stake. It may not be for this Court to order such, as it has
no judicial power to do so, but at the very least it could recommend such ROYAL
COMMISSION to be held.
RIGHT TO BE HEARD
Re; Commissioner of Police v. Tanos
Similarly in Commissioner of Police v. Tanos (1958) 98 CLR 383, at p 395 ,
Dixon C.J. and Webb J. said that "it is a deep-rooted principle of the law
that before anyone can be punished or prejudiced in his person or property by
any judicial or quasi-judicial proceeding he must be afforded an adequate
opportunity of being heard." (at p4)
And

Page 26
Bringinshaw v Bringinshaw (1938) 60 CLR 336 at 361,362
“Not inexact proof, indefinite testimony or indirect inference (By prosecution)”
And
Marriage of Baines (No. 2) (1981) 7 Fam LR 232 at 237;-

"We recognise that each party is entitled to a Fair and Proper trial and to an adequate
opportunity to adduce relevant evidence and to test the quality and veracity of the evidence
adduced by the other party."
The magistrate (On 17 November 2005) seemed to be in a hurry, so to say, to convict without
appropriately allowing evidence to be placed before the Court, albeit refusing to address critical
issues of the OBJECTION TO LEGAL JURISDICTION overruled this the magistrate seemed
to overlook that for purpose of the trial itself then the case ought to have been heard afresh and
all evidence should have been presented afresh. It appeared to me the magistrate simply relied
upon argument in regard of the OBJECTION TO LEGAL JURISDICTION and did not
bother to demand from the Director of Public Prosecution to appropriately present his case,
regardless that I made the claim NO CASE TO ANSWER.
JOHN RAYMOND BURRELL v. NICK JACENKO [1998] NSWLEC 310 (4 December 1998)
11. The question whether there is a case to answer arises at the end of the prosecutor's
evidence in chief. The tender of a document in the course of cross examination of a
prosecution witness does not change that temporal context. The question of law to be
answered after all is whether the defendant could lawfully be convicted on the evidence as
it stands at that time.
12. The Court is not satisfied that the defendant has lost the opportunity to make a no case
submission by the tender of the planting design.
The issue was at all times if at the closure of the Prosecutors case there was sufficient evidence
presented to the Court to warrant a conviction. The averment rule could not apply in that regard
where failing to vote itself was not to justify a conviction if there was a lawful excuse, and this
the Prosecutor never did overcome when presenting his case, this despite the Defendant in his
ADDRESS TO THE COURT already related to the religious objection issue. In fact, the
Prosecutor didn’t even bother to cross examine about this, perhaps because of being aware that
constitutionally religious beliefs cannot be tested.
The RIGHT TO BE HEARD surely must include that the actual trial of the charge allows all
relevant evidence to be presented, even if this means that details presented in regard of the
OBJECTION TO LEGAL JURISDICTION are to be canvassed again, this the magistrate
refused.
The magistrate refused to adjourn the hearing for the charges themselves, even so the previous
magistrate had directed that this was to be done, once the OBJECTION OF LEGAL
JURISDICTION had been disposed off, if it had been, so the Commonwealth Director of Public
Prosecutions first could serve upon me all material relied upon and then the matter be
subsequently listed for hearing.
In my view, where those orders remain on foot than this (adjournment) is the appropriate conduct
to be followed as otherwise it would rob me of my right to appropriately prepare my case in
defence of the charges.

Page 27
A criminal conviction is a very serious matter, and albeit my wife and I no longer are in
employment, it does not mean that I then can have the luxury of a criminal conviction as a stain
against my name, merely because the Court may refuse to allow me the benefit of the decisions
of previous magistrates, and ignores to deal appropriately with constitutional based objections
and other relevant matters, and by this also denied a FAIR AND PROPER TRIAL.
NO MAN CAN BE A JUDGE IN HIS OWN CASE
Dimes v. Proprietors of the Grand Junction Canal (1852) 3 II,L.C. 759

“The fundamental rule of English (Australian) law is that "No man can be a judge in his
own case". It has long been held that if there is bias or the appearance of bias such as to
deny justice or create the impression that justice has not been done, then that bias, or
apparent bias, is sufficient to invalidate the decision of those who made the decision.”
Reg v. The London County Council (1894) XI .L.R. 24
Sharp v. Carey (1897) 23 V.L.R. 248 Austin Digest 17.
Reg. v. Moleswort (1893) 23 V.L.R. 582 Austin Digest 17.
Black v. Black (1951) N.Z.L.R. 723
Ex Parte Blume (1958) W.N. (N.S.W.) 411Austin Digest 93,339,457,458
The Defendants submits, that “Australian citizenship” can only be obtained by obtaining
“State citizenship”, as it is not a nationality, but has to deal with being a recognised “State
citizens” where one AUTOMATICALLY then obtain “Australian citizenship”
(“Commonwealth citizenship” which includes franchise. Because lawyers require to make an
“Oath of alliance” when seeking to be admitted to the BAR to practice, which now is to a
LEGAL FICTIONAL “Queen of Australia” (as set out further in this ADDRESS TO THE
COURT), while being a Subjects of the British Crown, (as also set out further), then there is a
clear conflict for any judge to deal with this matter which would in effect involve his/her own
personal legal position if qualified to be a judge of this Court. Albeit judicial officers may not be
aware that their true constitutionally nationality is and remain to be British nationals and so any
“Oath of alliance” to a LEGAL FICTIONAL “Queen of Australia” would be a conflict.
Where the High Court of Australia in Sue v Hill ousted Heather Hill of being a member of
parliament upon the basis that she was having alliance to a foreign Queen, then as set out further
in this ADDRESS TO THE COURT, the same applies to all other persons, including judicial
officers, who by birth (including all those persons born within the Commonwealth of Australia)
or by naturalization are in fact “subjects of the British Crown.”
Hansard 2-3-1898 Constitution Convention Debates;
Mr. 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.
Dr. QUICK.-If we are to have a citizenship of the Commonwealth higher, more

comprehensive, and nobler than that of the states, I would ask why is it not implanted in the
Constitution? Mr. Barton was not present when I made my remarks in proposing the
clause. I then-anticipated the point he has raised as to the position we occupy as subjects of
the British Empire. I took occasion to indicate that in creating a federal citizenship,
and in defining the qualifications of that federal citizenship, we were not in any way
interfering with our position as subjects of the British Empire. It would be beyond the

Page 28
scope of the Constitution to do that. We might be citizens of a city, citizens of a
colony, or citizens of a Commonwealth, but we would still be, subjects of the Queen.
Again;
we were not in any way interfering with our position as subjects of the British
Empire. It would be beyond the scope of the Constitution to do that.
The High Court of Australia deriving its judicial powers within the Constitution
(Commonwealth of Australia Constitution Act 1900 (UK)) cannot go beyond what is
embedded in the Constitution, hence the constitutional problem exist that judicial officers are
constitutionally (by birth or naturalization) “subjects of the British Crown” but wrongly
excluded by the Sue v Hill decision as being deemed to be by this having alliance to a foreign
Monarch.
In view that by the Sue v Hill ruling the effect is that all judicial officers within the
Commonwealth of Australia then are having alliance to a foreign Monarch then none of the
judicial officers (including those of the High Court of Australia) could possibly determine their
own status as only the Privi Council could do so.
As set out further in this document Subsection 51(xix) of the Constitution was provided for by
the British Parliament to naturalize “aliens” to become “British nationals”, and it never included
any purported “Australian nationality”. The High Court of Australia has no constitutional
powers to amend the Constitution as to purport this subsection 51(xix) has a different meaning
then intended by the Framers of the Constitution, and hence all persons born in the
Commonwealth of Australia and those “naturalized” are and remain “subjects of the British
Crown” with their alliance to the British Monarch. As also set out extensively further in this
ADDRESS TO THE COURT, no one can have alliance to two Monarchs and therefore any
Oath that purports to be to a “Queen of Australia” is a disqualification to serve as a judicial
officer. With laws (legislation) now being enacted under the name of “Queen of Australia” then
all laws so enacted are constitutionally ULTRA VIRES and so without legal force. This applies
also to Proclamations and writs.
The Defendant submits, that for this also the Proceedings are permanently stayed, so the
constitutional issues are to be sorted out by the Commonwealth Director of Public Prosecutions
as to if this Court can invoke legal jurisdiction and if there is any judicial officer of any Court in
the Commonwealth of Australia who in fact is qualified to hear the case, or that by their “Oath
of alliance” to the LEGAL FICTION “Queen of Australia” they have all disqualified
themselves from being a judicial officer to hear and determine matters.
The Defendant submits, that the same applies to any lawyer seeking to prosecutor this case for
the Commonwealth Director of Public Prosecutions.
Those who did not make an “Oath of alliance” to the LEGAL FICTION “Queen of Australia”
still have the problem that they are faced with a Court system that now purportedly (Sue v Hill)
operates under a LEGAL FICTION “Queen of Australia” and as such the conflict remains to
exist.
This ADDRESS TO THE COURT to some extend has quoted the intentions of the Framers of
the Constitution and the true meaning of “citizenship” including “Commonwealth citizenship”
(“Australian citizenship”) and how one obtain it. Including the various references of “Australian
citizenship” under the British nationality! It is the Sue v Hill judgment that has thrown it all in a
chaos where the High Court of Australia purported that “Australian citizenship” is a “nationality”
where in fact no such constitutional powers ever existed, in deed specifically was stated not to
Page 29
exist. Where then nevertheless the Sue v Hill judgment prevents a British national to sit in the
parliament, contrary to the intentions of the Framers of the Constitution then it equally applies to
all other members of parliament and any judicial officers who unbeknown to themselves are in
fact “British nationals”.
In my 30 September 2003 published book (Of which 4 copies were provided that day to the High
Court of Australia Melbourne Registry, and a further 4 copies on 3 October 2003);
INSPECTOR-RIKATI® on CITIZENSHIP
A book on CD about Australians unduly harmed.
ISBN 0-9580569-6-X
I did set out then that with those who had joined Pauline Hanson One Nation were in fact
members regardless of what was stated otherwise on the flip side of their membership card.
Subsequently, in November 2003, the Court of Appeal precisely used this to overturn Pauline
Hanson and David Ettridge convictions.
Because the Commonwealth of Australia was specifically denied to define/declare citizenship by

the Framers of the Constitution then the Australian Citizenship Act 1948 is ULTRA VIRES,
for so far it purports to define/declare citizenship and by this all persons natural born in the
Commonwealth of Australia and those naturalized within the powers of subsection 51(xix) of the
Constitution are and remain in fact British nationals. By the, albeit ill-conceived judgment of
Sue v Hill therefore are deemed to be under an “Oath of alliance” of a “foreign monarch”. All
judgments handed down in the name of the “Queen of Australia” therefore are a legal nullity.
OBJECTION TO LEGAL JURISDICTION
The Defendant (Appellant) also relies upon the material, the ADDRESS TO THE COURT’s
that were previously filed in proceedings held in the Magistrates Court of Victoria at Heidelberg,
including the OBJECTION TO LEGAL JURISDICTION, that was made from onset in
August 2002 when the initial proceedings commenced, and ever since maintained.
Main v. Thiboutot, 100 S. Ct. 2502 (1980).

"The law provides that once State and Federal jurisdiction has been
challenged, it must be proven."
Hagens v. Lavine, 415 U.S. 533,

- "Once jurisdiction is challenged, it must be proven" .
Standard v. Olsen, 74 S. Ct. 768,

- "No sanctions can be imposed absent proof of jurisdiction."
Basso v. Utah Power & Light Co., 495 2nd 906 at 910,
- "Jurisdiction can be challenged at any time, even on final determination."
Thompson v. Tolmie, 2 Pet. 157, 7 L.Ed. 381; Griffith v. Frazier, 8 Cr. 9, 3L. Ed. 471.
- "Where there is absence of jurisdiction, all administrative and judicial proceedings
are a nullity and confer no right, offer no protection, and afford no justification,
and may be rejected upon direct collateral attack."

Page 30
It means that the Prosecutor has the onus to prove jurisdiction and must disprove each and
every objection that I place before this Court in support of my OBJECTION TO LEGAL
JURISDICTION.
I refer to the term “Framers of the Constitution” which refers to the delegates of the
Constitution Convention Debates in principle but also provides for the inclusion of the British
Parliament which amended the Constitution when dealing with the Bill before the British
Parliament and subsequent successful referendums that resulted to Section 128 amendments of
the Constitution. The term “Framers of the Constitution” also was used by the Delegates
themselves, as shown below.

Mr. HIGGINS: The great Civil War in America was owing to equal representation,
because the framers of the Constitution had in view the stopping of the slave trade and
slavery, but they were not able to bring it about in due time, and gradually, in consequence
of the slave states having equal representation in the Senate. As soon as the southern states
found that they could not persuade Texas to be subdivided, and they hoped to be able to get
in Texas two slave states, then it was that they determined to secede.
Australian Agricultural Co Ltd. v F.E.D.F.A of Australasia (1913) 17 CLR 261 and 278
“The oath of a justice of this court is ' to do right to all manner of people according to
law' Our sworn duty is to the law itself and to the organic nature of the constitution first
of all. If, then, we find the law to be plainly in conflict with what we or any of our
predecessors errornously thought it to be, we have, as I conceive no right to choose
between giving effect to the law, and maintaining an incorrect interpretation, It is not, in
my opinion, better that the court should be persistently wrong than that it should be
ultimately right..
Whatever else may be said with respect to previous decisions - and it is necessary here to
consider the principals upon which a court should act in particular cases - so much at least
emerges as is undoubtedly beyond challenge, that where a former decision is clearly
wrong, and there are no circumstances countervailing the primary duty of giving effect to
the law as the court finds it, the real opinion of the court should be expressed.”
"In my opinion, where the prior decision is manifestly wrong, then, irrespective of the
consequences, it is the paramount and sworn duty of this court to declare the law truly...."
R v National Liquors Ltd. (1922) 2 AC at 156; (1922) ALL ER Rep at p 351

“Its jurisdiction is to see that the inferior court has not exceeded its own, and for that very
reason it is bound not to interfere in what has been done within that jurisdiction for in
doing so it would itself, in turn, transgress the limits within its own jurisdiction of
supervision, not of review, is confined. That supervision goes to two points; one is the
area of inferior jurisdiction and the qualifications and conditions of its exercise; the other
is the observance of the law in the course of its exercise.”
Bringinshaw v Bringinshaw (1938) 60 CLR 336 at 361,362

“Not inexact proof, indefinite testimony or indirect inference (By prosecution)”
The Victorian Police Guide Fifth Ed. 1969

P156 2nd last Paragraph: “Accordingly where the person does not regularly plead
guilty, all the material allegations of fact and of law are put in issue or in question”

Page 31
The following is quoted from the 25-9-2006 document in regard of the 2002 proceedings before
the magistrates Court of Victoria at Heidelberg;
QUOTE
OBJECTION TO LEGAL JURISDICTION THIS IS ONE OF NUMEROUS ISSUES
RAISED IN THE CONTENT OF THIS ENTIRE DOCUMENT.
Items are not placed in any order of importance, and ought not be perceived that they are.
This document does not portray to set out my entire case but at least it does set out some issues.
To assist the Court there are relevant quotations included so this Honourable Court can perhaps
obtain a point of view of the Accused (Defendant) what his position is, for so far outlined in this
document.
END QUOTE
And
QUOTE
Bowers v Smith (1953) 1 ALL ER 320 (Re Clarke Hall) and (Morrison on Children, 7 Ed,
P3)
"... the first business of the court is to try to issue whether or not the case is
bought within the terms of the statute, and only if this be proven by proper
evidence can the court proceed to decide upon treatment"
Schorel v Elms (1994) Unreported M2944X of 1989 SA27 of 1993
Page 16 and 17: -
"Justice must not only be done but must be seen to be done"
Article 11 of the United Nations Universal Declaration of Human Rights provides:

"Everyone charged with a penal offence has the right to be presumed innocent until
proved guilty according to law in a public trial at which she/he has had all the
guarantees necessary for his defence."
END QUOTE
And
QUOTE
Obviously, where appropriate, I seek this Honourable Court to consider all Authorities
referred to in this ADDRESS TO THE COURT in the overall also, as such not limit the
application of such Authority when I happen to refer to it.
I am wondering, if I am before a state magistrates Court, what authority does this Court
have to deal with a Federal (Commonwealth) matter?
Surely being so very disadvantaged (as likely most accused are) standing humbly before
this Court, at the very least the Australian Electoral Commission ought to have pointed out
upon what legal grounds this Honourable Court can deal with this matter.
I, the accused, ought to be given duly and proper notification how on earth this applies.
I do not recall the Australian electoral commission setting out upon what legal basis this
Honourable Court can exercise Federal jurisdiction.

Page 32
I do not belief it is the function of the Court to “ASSUME” it to be so, as it might very well
be that the legislative provisions for this may not exist.
END QUOTE
And
QUOTE
It ought to be clear that Commonwealth laws have a distinct different basis then State laws.
For example, the State Court is bound by a State Constitution and in Victoria, as set out below,
the STAR CHAMBER COURT ACT is part of Victoria’s law. Yet, it might not be part of some
other State.
The question then is; Upon what basis is the case conducted?
Is it upon Commonwealth law or upon State law of some combination upon that. If it were a
combination then the proceedings would be conducted in every State upon a different mixture of
legal applicable laws. Meaning, that the manner of giving evidence and the manner of in which
the Court conducts its business can be drastically differ.
The Federal Court have no inherited “common law” system in the same manner as each State
has. And, each State has a different “common law” system pending how it arrived at it.
So, being a very humble person and very disadvantaged in my presentation I seek this
Honourable Court to explain what is really going on?
Am I facing litigation that applies strictly Victorian State laws and Victorian constitutional
provisions, or am I facing litigation purely under Commonwealth law?
There is of course some tiny bit of a problem further.
I understood from reading the Constitutional Convention Debates, 1891, 1897 and 1898 that at
the time of creating the Commonwealth Constitution Bill the framers made clear (such as E,
Barton a then well respected lawyer, the First Prime minister of Australia and subsequently judge
of the High Court of Australia) that they (the framers) couldn’t give all legislative powers to the
Commonwealth because of the British law that applied aboard British ships who were being used
in Australian waters.
It is for this that the “evidence laws” and “criminal laws” legislative powers were not provided
for in the commonwealth constitution, this as it was held that State laws applies if a offence
against a Commonwealth law was occurring within a State and outside the states it was British
maritime criminal laws.
The framers made clear, they would never permit the Constitution to have powers to oust British
Imperial power or deny British subject who are citizens of a State (and so automatically obtain
Commonwealth Citizenship). Well we have since seen that Heather Hill was, so to say, kicked
out in the Sue v Hill case.
We also have now that the Commonwealth purportedly made criminal laws and evidence Act
despite the framers not having provided any legislative powers within Section 51 of the
Constitution to do so! It was specifically withheld from it.

Page 33
I am about to publish the book
INSPECTOR-RIKATI® and the BANANA REPUBLIC AUSTRALIA

Subtitled;
Dictatorship & Deaths by stealth. Preliminary book edition on CD
And, in this book I set out the various recorded statements of the framers of the Constitution.
I have set out in this document some small parts of the quotations. However, further details could
be provided to the Court if deemed essential.
Act Interpretation Act 1901;

15A Construction of Acts to be subject to Constitution
Every Act shall be read and construed subject to the Constitution, and so as not to exceed
the legislative power of the Commonwealth, to the intent that where any enactment thereof
would, but for this section, have been construed as being in excess of that power, it shall
nevertheless be a valid enactment to the extent to which it is not in excess of that power.
While this may be considered in regard of the Australian Citizenship Act 1948, referred to in
this document, it ought not then be perceived that any Proclamation or Writ not duly and
properly Gazetted within the State of Victoria then becomes valid and applicable nevertheless.
WATSON v_ LEE (1979) 144 CLR 374
To bind the citizen by a law, the terms of which he has no means

of knowing, would be a mark of tyranny.
END QUOTE
Despite that I have from onset pursued this proceedings go on ignoring this. Surely that in itself
may underline how absurd proceedings are being held. Lawyers and judicial officers basing
proceedings upon LEGAL FICTIONS to cause convictions rather then to take a proper look at
what is legally applicable before seeking to deal, if at all, with what is alleged against the
Defendant.
While the magistrate made clear not to deal with the “citizenship” issue, as this was part of the
OBJECTION TO JURISDICTION. Clearly the magistrate never then invoked legal
jurisdiction by this. The Court must consider each and every part of an objection and unless it
disposes of each part of the objection it does not invoke legal jurisdiction.
And, in any event a Defendant is entitled to be advised prior to proceedings commencing to hear
any charge what are the relevant legislative provisions applicable., so that the Defendant can
prepare his defence. The Prosecutor seeking to pursue a charge has the onus to set out if the
proceedings are under State legislative provisions, Federal legislative provisions and/or both and
what is then applicable.
After all, issues such as Section 388 averment rule are depending upon what legal process is
applicable.. In particular where already a magistrate overruled Section 388 CEA1918 to be
applicable then the prosecution has the onus to accept this or should have lodged an appeal
against the 4-8-2005 decision, this they never did then.

Page 34
The Commonwealth Director of Public Prosecutions cannot now pursue that somehow this
County Court of Victoria retrospectively overrule a 4-8-2005 decision of a magistrate where they
are out of appeal time. Likewise so with the directions of the magistrate on 4-12-2002, by
consent of the parties. Simply this kind of “BACKDOOR” manner to try the Court to ignore
previous magistrates decisions in favour of the Defendant would be unacceptable.
Therefore, the court cannot invoke jurisdiction unless the 4-12-2002 orders are complied with,
not by the Defendant, but by the Commonwealth director of Public Prosecutions, who has the
onus to prove jurisdiction!
Because Section 388 CEA1918 conflicts with the provisions of the Act Interpretation Act 1980
(Victoria) then in that regard also it cannot be enforced.
1640 Star Chamber Act,

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.
QUOTE 25-9-2002 document;

Magistrates’ Court Act 1989, Act 51/1989 Section 27(1). Descriptions in charge:
(1) A charge must describe the offence which the defendant is alleged to have
committed and a description of an offence in the words of the Act or subscription
of an offence in the words of the Act or subordinate instrument creating it, or in
similar words, is sufficient.
(2) A charge must identify the provision of the Act or subordinate instrument (if any)
that creates the offence, which the defendant is alleged to have committed.
The Summons clearly fails to do so, as set out below in the 9-8-2002 letter included in this
ADDRESS TO THE COURT!
END QUOTE 25-9-2002 document;
And

ISSUE: THE QUESTION OF VALIDITY& OTHER RELEVANT
ISSUES IN REGARD OF THE LITIGATION UNDER THE
MAGISTRATES’ COURT ACT 1989, ACT NO. 51/1989, OR
PART THEREOF, OR OTHERWISE.
Constitution Act 1975 No. 8750
2
And whereas it is provided by section LX of the said The
Constitution Act that the Legislature of Victoria has full power and
authority from time to time by any Act or Acts to repeal alter or
vary all or any of the provisions of The Constitution Act and to

Page 35
substitute others in lieu thereof:
Be it therefore enacted by the Queen’s Most Excellent
Majesty by and with the advice and consent of the
Legislative Council and the Legislative Assembly of
Victoria in this present Parliament assembled and by the
authority of the same as follows (that is to say):
1. Short title and commencement 1
(1) This Act may be cited as the Constitution Act 1975.
(2) This Act shall come into operation on a day to be fixed
by proclamation of the Governor in Council published
in the Government Gazette.
*****
2. Existing laws
(1) All laws which at the commencement of this Act are in
force within Victoria shall remain and continue to be of
the same force authority and effect as if this Act had
not come into force except insofar as the same are
repealed or varied by or under this or any subsequent
Act.
(2) All courts within Victoria and all offices judicial
administrative or ministerial therein and all charters
legal commissions powers and authorities except
insofar as the same may be abolished altered or varied
by or may be inconsistent with the provisions of this Act
or are abolished altered or varied by any Act or Acts
shall continue to subsist in the same form and with the
same effect as if this Act had not come into force.
(3) The Supreme Court of the State of Victoria as at
present constituted shall continue under and subject to
the provisions of this Act and shall for all purposes be
deemed to be the same court after as before the
commencement of this Act.
S. 1(3) amended by
No. 9254 s. 2(a),
repealed by No.
108/1994 s. 6(1)(a).
S. XL and XLI.
Constitution Act 1975 No. 8750

3 ANSTAT.
(4) If the appointed day for the Legislative Council under
the Electoral Provinces and Districts Act 1974 has
not passed at the time that this Act comes into
operation, section 26 shall have effect until that
appointed day as if for the expression “44 members”
there were substituted the expression “36 members”
and sub-section (1) of section 27 shall have effect as if
for the expression “22 provinces” there were
substituted the expression “18 provinces”.
(5) If the appointed day for the Legislative Assembly under
the Electoral Provinces and Districts Act 1974 has
not passed at the time this Act comes into operation
sub-section (1) of section 35 shall have effect until that
appointed day as if for the expression “81 districts”
there were substituted the expression “73 districts”.
3. Laws of England to be applied in the
administration of justice
(1) Subject to the Imperial Acts Application Act 1922
2
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
Page 36
administration of justice in the courts of Victoria, so far
as they can be applied within Victoria.
(2) 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 make and establish
such limitations and modifications of such laws and
statutes within Victoria as may be deemed expedient in
that behalf.
[1351-2] 25 Edward III St. V c. IV

“unless it be by indictment or presentment of good and lawful people of the same
neighbourhood where such deeds be done, in due manner, or by process made by writ
original at the common law;”
1640 Star Chamber Act,

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, practised or exercised in the said court of
star-chamber.
5. Be it likewise declared and enacted by authority of this
present parliament, That neither his Majesty, nor his
privy council, have or ought to have any jurisdiction,
power or authority, by English bill, petition, articles, libel
or any other arbitrary way whatsoever, to examine or
draw into question, determine or dispose of the lands,
tenements, hereditaments, goods or chattels of any of
the subjects of this kingdom, but that the same ought to
be tried and determined in the ordinary courts of justice,
and by the ordinary course of the law.
As Defendant I did more then present my fair share of material before the Courts, and yet next to
nothing from the Commonwealth Director of Public Prosecutions, and as such merely by the
failure to counter act what I had presented to the Court that in itself should have resulted that the
charges never, so to say, had seen the light of day. However, it is in my view that because I am
unrepresented the Court rather tag along with the lawyers of the Commonwealth Director of
Public Prosecutions, and so perhaps also because of being unable or otherwise to comprehend the
constitutional and other legal technicalities that I presented to the Court.
Still, this should not the deny me as Defendant a FAIR and PROPER trial.
It therefore remains my view , and also considering what already has been placed on Court file,
that this Court cannot invoke legal jurisdiction to hear and determine the charges.
Where and how can the validity of a Proclamation be challenged?
A Proclamation, within the provisions of the Commonwealth Electoral Act 1918 clearly does not fall
within the meaning of “electoral matter” and as such neither an Issue that can be pursued
before the Court of Disputed Returns.
A Writ is an “electoral matter” when issued. However, if the writ was “defective” then the writ never
had any legal force and likewise never could invoke the jurisdiction of the Court of Disputed
Page 37
Returns but remained for all purposes a matter to be resolved by a Federal Court operating as a
“Court of Law” not sitting as a Court of Disputed Returns.
The following as advertised by the Commonwealth Electoral Commission on its website;
Commonwealth Electoral Act 1918
The following relevant provisions on electoral advertising in the Commonwealth

Electoral Act 1918, are extracted for the convenience of readers. The extracted law is
current from 15 October 2001. In some instances, emphasis has been added to
keywords of particular relevance.
Interpretation
4 (1) In this Act unless the contrary intention appears:
..."electoral matter" means matter which is intended or likely to affect voting

in an election...
(9) Without limiting the generality of the definition of "electoral matter" in subsection
(1), matter shall be taken to be intended or likely to affect voting in an election if it
contains an express or implicit reference to, or comment on:
a. the election;
b. the Government, the Opposition, a pre vious Government or a previous Opposition;
c. the Government or Opposition, or a pre vious Government or Opposition, of a State
or Territory;
d. a member or former member of the Parliament of the Commonwealth or a State or of
the legislature of a Territory;
e. a political party, a branch or division of a political party or a candidate or group of
candidates in the election; or
f. an issue submitted to, or otherwise before, the electors in connection with the
election.
Interpretation
322. In this Part, "relevant period", in relation to an election under this Act, means the period
commencing on the issue of the writ for the election and expiring at the latest time on
polling day at which an elector in Australia could enter a polling booth for the purpose of
casting a vote in the election.
NEW SOUTH WALES v_ THE COMMONWEALTH ; QUEENSLAND v_ THE

COMMONWEALTH (1975) 134 CLR 201.
18. No attack is made in these submissions on the validity or effectiveness

of the proclamation of the double dissolution. It is submitted, and in my
opinion correctly submitted, in this connexion that the power simultaneously
to dissolve both Houses of the Parliament and the power subsequently to
convene a joint sitting are statutory and not prerogative powers. The
validity of the proclamation convening the joint sitting is attacked but the
submissions to which I have so far referred do not depend on the suggested
invalidity of the proclamation. (at p219)
Page 38
Again;
The
validity of the proclamation convening the joint sitting is attacked but the
submissions to which I have so far referred do not depend on the suggested
invalidity of the proclamation.
This was a matter before the High Court of Australia, not sitting as a Court of Disputed Returns,
which underlines that to challenge the validity of a Proclamation is and remains before the High
Court of Australia sitting as a High Court of Australia and not sitting as a Court of Disputed
Returns.
This ought to be obvious as the act to prorogue the Parliament and to Dissolve the House of
Representatives are pre conditions to hold a general election but are not part of the “election”
itself that is managed by the Australian Electoral Commission.
Hence the ruling by Marshall J on 7 November 2001 that this was a matter for the Court of
Disputed Returns clearly was an error in law.
The Australian Electoral Commissioner Mr Becker, in his sub147parti submission to the JSCEM
on 16 August 2002 stated;
The Schorel-Hlavka application on the calculation of the election timetable. On 2

November 2001, Mr Gerrit Schorel-Hlavka applied to the Federal Court for an injunction
under section 383 of the electoral Act to stop the election on the grounds that the date for
the close of nominations was calculated incorrectly. Mr Schorel-Hlavka contended that the
term “not less than 10 days” in subsection 156(1) of the electoral Act should be interpreted
as meaning not less that 10 full periods of 24 hours. On this interpretation the meaning of
subsection 156(1), the date set for the close of nominations would have been a day later
than the one that was relied upon for the election. Mr Schorel-Hlavka argued that the
cumulative effect of this alleged error was that polling day could not be on 10 November
2001, as proclaimed by the Governor-General on 8 October 2001. Mr Schorel-Hlavka
submitted that polling day should have been on or after 17 November 2001.
In Foster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 445, Gibbs J referred to the
general rule that “not less than” so many days refers to clear days – “unless the context or the
subject matter reveals a contrary intention”.
Many an Appeal were dismissed because an appellant did not file within the time the Rules
provided for. For example, where an Appellant filed an appeal before statutory an Appeal could
be filed. Many other occasions the Court have made clear that “time” periods provided for are
essential. In this case where there are certain constitutional and other legal provisions relevant to
the conduct to publish a Proclamation, the issue of the writs and the time periods governing a
election process then where they are legislative provisions enacted as laws then a citizen is
entitled to rely upon those provisions.
Therefore if there is a failure to comply with the proper procedures to publish a Proclamation
and/or writs showing the legally required time periods then the writs are defective and without
legal force.
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 445 The true version of the
judgement under 5;
That where an instrument prescribes that a period of time may elapse between one event
and another, the words “at least”, not less than” and “not later than”, unless the context or

Page 39
the subject matter reveals contrary intention, should be regarded as indicating that a clear
or full period of time must expire between the two events.”
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 (28 April 1998)
Dawson J pointed out in Hunter Resources Ltd v Melville when discussing the
statutory provision in that case: "substantial compliance with the relevant
statutory requirement was not possible. Either there was compliance or there
was not."
Again;
"substantial compliance with the relevant statutory requirement was not possible.
Either there was compliance or there was not."
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 445 The true version of the
judgement under 5;
That where an instrument prescribes that a period of time may elapse between one event
and another, the words “at least”, not less than” and “not later than”, unless the
context or the subject matter reveals contrary intention, should be regarded as
indicating that a clear or full period of time must expire between the two events.”
There is some authority for saying that the use, in a statute prescribing a time limit, of such
expressions as "at least" and "not less than" indicate an intention that the specified number
of "clear days" must elapse between two acts or events (see R. v. Justices of Shropshire
(1838) 8 Ad & E 173 (112 ER 803); Young v. Higgon (1840) 6 M & W 49 (151 ER 317);
Chambers v. Smith (1843) 12 M & W 2 (152 ER 1085); In re Railway Sleepers Supply
Co. (1885) 29 Ch D 204 and Ex parte McCance; Re Hobbs (1926) 27 SR (NSW) 35; 44
WN 43).
But it is clear, I think, that significance is attached to such expressions as "at least" or "not
less than" only in cases where the immediate purpose of the prescription of a time is to
define a period on the expiration of which an act may be done, and not in cases where the
immediate purpose is to define a period within which an act must be done. In the former
class of case the prescribed number of days must elapse between two acts or events. In
the latter class of case the act must (unless a contrary intention appears) be done before the
expiration of the last of the prescribed number of days (see, e.g. Radcliffe v. Bartholomew
(1892) 1 QB 161 and Armstrong v. Great Southern Gold Mining Co. (1911) 12 CLR 382).
Fullagar J in Associated Dominions Assurance Society Pty Ltd v Balford (1950) 81 CLR 161,
11. I should think that the document served in this case was an "instrument"
within the meaning of s. 46, and the argument was that, because the time
allowed by the notice expired on a Sunday (16th), s. 36 (2) extended the time
until midnight on the 17th. The notice having been served on the 3rd, the time
which s. 55 required to be allowed expired at midnight on the 17th. The
company, it was said, was entitled to have until that time to show cause. It
did have until that time. Therefore, it was said, the notice was a good and
valid notice. (at p186)
12. I would agree that the combined effect of the notice and of s. 36 (2) of
the Acts Interpretation Act is that the company may "show cause" at any time
up to midnight on 17th May. The last day of the period prescribed or allowed
by the instrument for the doing of the thing falls on a Sunday. The "thing,"
therefore, may be done on the following day, which is a Monday. In my opinion,
however, it does not follow that the notice was a good and valid notice.
Section 36 (2) of the Acts Interpretation Act does not say that the notice
shall be construed as if the period specified in it expired on Monday the
Page 40
17th, instead of Sunday the 16th. And s. 55 of the Life Insurance Act does say
that the notice shall "specify" a period not less than fourteen days from
service of the notice. The notice actually served did not "specify" such a
period: it "specified" a period which was too short by one day, and the Acts
Interpretation Act does not affect this position. The two statutory
provisions, read together, mean simply this: the notice must specify a period
not less than fourteen days from service of the notice within which the thing
must be done, and, if the last day of the period so specified falls on a
Sunday, the thing may be done on the following Monday. The notice simply did
not specify such a period, and it is, therefore, bad. (at p187)
13. In my opinion, the appeal should be allowed, and there should be judgment
in the action for the plaintiff in the form of a declaration that the notice
is invalid and void, and an injunction to restrain the respondent from
instituting an investigation into the affairs of the company. (at p187)
And
There is some authority
for saying that the use, in a statute prescribing a time limit, of such
expressions as "at least" and "not less than" indicate an intention that the
specified number of "clear days" must elapse between two acts or events (see
R. v. Justices of Shropshire (1838) 8 Ad & E 173 (112 ER 803); Young v. Higgon
(1840) 6 M & W 49 (151 ER 317); Chambers v. Smith (1843) 12 M & W 2 (152
ER
1085); In re Railway Sleepers Supply Co. (1885) 29 Ch D 204 and Ex parte
McCance; Re Hobbs (1926) 27 SR (NSW) 35; 44 WN 43). But it is clear, I
think,
that significance is attached to such expressions as "at least" or "not less
than" only in cases where the immediate purpose of the prescription of a time
is to define a period on the expiration of which an act may be done, and not
in cases where the immediate purpose is to define a period within which an
act
must be done. In the former class of case the prescribed number of days must
elapse between two acts or events. In the latter class of case the act must
(unless a contrary intention appears) be done before the expiration of the
last of the prescribed number of days (see, e.g. Radcliffe v. Bartholomew
(1892) 1 QB 161 and Armstrong v. Great Southern Gold Mining Co. (1911) 12
CLR
382). In the latter case Griffith C.J. said: - "When you talk of doing a thing
within a period of a certain number of days, it is quite clear that the end of
the last day is the furthest limit. It is impossible to say that a thing
required to be done within seven days is done within seven days if done on
the
eighth day, and it is impossible to make any alteration of the limit by adding
the word 'clear'" (1911) 12 CLR, at p 388. In the case of s. 55 of the Life
Insurance Act it is plain that the immediate purpose of the prescription of a
period is to fix a time within which cause must be shown. It follows that the
last day on which cause may be shown is the fourteenth day after the date of
the notice. (at p183)
What this indicates is that publications must done done appropriately or are not applicable
at all. After all, if it were accepted otherwise, then Ministers may just delay publications
Page 41
until the passing of the objection/appeal period and by this circumvent any persons ability
to object/appeal.
Bodney v Westralia Airports Corporation Pty Ltd [2000] FCA 1609 (13 November 2000).
Mayors and councils were elected (Pt IV). Part VIII conferred on a council power
to make by-laws upon a wide range of matters; by-laws came into effect when
confirmed by the Governor and published in the Gazette (s 186).
The Governor-General might direct that land be acquired by compulsory process (s
15(1)). The next step was the publication of a notification in the Gazette declaring
"that the land has been acquired under this Act for the public purpose therein
expressed" (s 15(2)). Upon publication of the notification, the land, by force of the
Act, was vested in the Commonwealth "freed and discharged from all trusts,
obligations, estates, interests, contracts, licences, charges, rates and easements"
(s 16); and the estate and interest of every person entitled to the land (including the
title of the State to any Crown land) was converted into a claim for compensation
(s 17). After publication of the notification, a copy was required to be served upon
the owners of the land "or such of them as can with reasonable diligence be
ascertained" (s 18).
32 For present purposes, an important aspect of that scheme is that no notification to
owners was required before the publication in the Gazette; and the publication in
the Gazette vested the land in the Commonwealth and converted former estates or
interests in the land into claims for compensation. The scheme excludes the
possibility that a failure to notify owners under s 18 would prevent the acquisition
from becoming effective.
Where the Commonwealth acquired land by compulsory process, extinguishment
took place on the occurrence of the event which vested title in the Commonwealth:
that is, the publication of the notice in the Gazette.
Re: AUSTRALIAN CAPITAL EQUITY PTY. LTD. And: ROGER DAVID BARNARD
BEALE, SECRETARY TO THE DEPARTMENT OF TRANSPORT AND
COMMUNICATIONS; ROBERT LINDSAY COLLINS, MINISTER OF STATE FOR
TRANSPORT AND COMMUNICATIONS and THE COMMONWEALTH OF AUSTRALIA
No. WA G14 of 1993 FED No. 141 Legislation (1993) 114 ALR 50 (1993) 41 FCR 242 (1993)
30 ALD 849 (extract)
His Honour concluded that in the case before him the
publication of the instrument was essential to the valid exercise of the power
and that no distinction could be drawn between the publication of the notice
and the exercise of the power.
At http://www.dofa.gov.au/infoaccess/informan/about_gazettes.html the following is provided
by Ausinfo – Commonwealth Gazettes of the Department of Finance and Administration;
Special Gazettes
Contains notices that would normally appear in any of the above Gazettes but which
are produced on demand when customers are unable to wait for the next Government
Notices Gazette to publish their notice.
Ben Ward & Ors v State of Western Australia & Ors [1998] 1478 FCA (24 November 1998).
As stated above in respect of pastoral leases, re-entry was effected by notice in the
Government Gazette (WA)

Page 42
If it were proposed to grant a lease for a term longer than ten years, wide publication
of that intent was to be given by notice published in four consecutive numbers of the
Government Gazette (WA), the first publication to be at least one month before
the grant. The term of the lease was not to exceed twenty-one years.
Two special leases granted under the Land Act 1933 (WA) for grazing purposes were
said to have been issued in respect of land in the claim area. Neither lease is current.
Grazing is not a purpose specified in s 116 of the Land Act 1933 (WA) and it must
be assumed that it was a purpose approved by the Governor by notice in the
Government Gazette
Formal notice of cancellation of the lease was published in the Government Gazette
(WA) in 1996.
That the Act Interpretation Act 1901 also states;
6 Evidence of date of assent or proclamation
The date appearing on the copy of an Act printed by the Government
Printer, and purporting to be the date on which the Governor-General assented
thereto, or made known the King’s assent, shall be evidence that such date was the
date on which the Governor-General so assented or made known the King’s assent,
and shall be judicially noticed.
Gazettes’ are being issued with the wording “Commonwealth of Australia” and failing to show
any reference to “Government Printer” and for this also failing to be recognised official
publications.
However, this does not bind the State Court to allow evidence to be submitted as to the validity
of the date, as the Commonwealth cannot direct the state Court as to how it shall conduct its
proceedings. Therefore, if the Gazette does not bear anything of being government Printer, then
it would be open to the Court to entertain any legal challenge to determine if the Gazette and/or
any legislation is in fact a legal enforceable document.
WATSON v_ LEE (1979) 144 CLR 374;
Such as:
To bind the citizen by a law, the terms of which he has no means
of knowing, would be a mark of tyranny.
Such as:
In a case of emergency the regulation can be notified in the Gazette itself even if a
special issue of the Gazette has to be published. I regard the availability of the terms
of the law to the citizen of paramount importance.
Some other parts of the judgments
BARWICK C.J.
5. A question of the interpretation of s. 48 (1) (b) of the Acts
Interpretation Act was agitated during the hearing. That subsection provides that the
regulations shall take effect from the date of their notification "or where another date is
specified in the regulations, from the date specified".
It was argued that this date could be a date anterior to the notification of the regulation
including, of course, its prescription of that date. In my opinion, this date, unless the
Parliament has expressly and intractably directed otherwise, must necessarily be a date
subsequent to the date of notification. To bind the citizen by a law, the terms of which he
has no means of knowing, would be a mark of tyranny. Parliament, in s. 48 (1), has

Page 43
recognized that justice requires that it be notified publicly before it becomes operative. I am
quite unable to construe s. 48 (1) as a Parliamentary mode of expression of intention that
the law should operate before it is notified. That would be so fundamentally unjust that it is
an intention I could not attribute to the Parliament unless compelled by intractable language
to do so. In my opinion, no semantic quirks of the draftsman would lead me to that
conclusion - a conclusion which would attribute to the Parliament an intention to act
tyrannically. In my opinion, what the section means is that the regulation will operate on
or from the day it is notified or from such other day, being a subsequent day, as the
regulation may specify. Such a construction is both reasonable, textually available and just.
(at p379)
And
8. Section 5 (3), in my opinion, provides a means whereby the obligations of s. 48 (1) may
be satisfied. It is not intended, in my opinion, to provide any lesser obligation in regard to
notification of the regulation. The change is to allow notification of a place where a copy of
the regulation may be had in lieu of the publication of the text of the regulation in the
Gazette. Just as the latter is a means of affording the citizen the means of knowing the
terms of the law by which he is to be bound, so the former is to provide a like opportunity.
So it seems to me, in order to satisfy what I have called the alternate method of notification,
copies of the regulation must be procurable at the designated place when it is notified. This
means in substance that a stock of copies of the regulation available for sale must be
in hand. Just how large that stock should be will no doubt be a matter of judgment bearing
in mind the subject matter of the regulation and the numerical size of the section of the
community which its terms are designed to affect. (at p380)
And
JUDGE3 STEPHEN J.
21. Its great importance is apparent from the history of delegated legislation. That history
reflects the tension between the needs of those who govern and the just expectations of
those who are governed. For those who govern, subordinate legislation, free of the
restraints, delays and inelasticity of the parliamentary process, offers a speedy and flexible
mode of law-making. For the governed it may threaten subjection to laws which are
enacted in secret and of whose commands they cannot learn: their reasonable expectations
that laws shall be both announced and accessible will only be assured of realization by the
imposition and enforcement of appropriate controls upon the power of subordinate
legislators, whose power, as Fifoot observed "requires an adequate measure of control if it
is not to degenerate into arbitrary government": English Law and its Background (1932).
(at p394)
And
23. These two enactments of the Commonwealth Parliament provide a mechanism for
parliamentary oversight of delegated legislation and, no less importantly, allow those
hom such laws affect to learn of their making and of their terms.
As Scott L.J. said in Blackpool Corporation v. Locker (1948) 1 KB
349, at p
361 , speaking there of sub-delegated legislation, "there is one quite general question .
. . of supreme importance to the continuance of the rule of law under the British
constitution, namely, the right of the public affected to know what that law is". The
maxim that ignorance of the law is no excuse forms the "working hypothesis on which
the rule of law rests in British democracy" but to operate it requires that "the whole
of our law, written or unwritten, is accessible to the public - in the sense, of course,
that at any rate its legal advisers have access to it at any moment, as of right". It was, his
Lordship said (1948) 1 KB, AT p 370 , "vital to the whole English theory of the liberty of

Page 44
the subject, that the affected person should be able at any time to ascertain what legislation
affecting his rights has been passed". (at p395)
And
JUDGE4 MASON J.
16. The subsections to which I have referred and the comments made in Dignan's Case
proceed upon the footing that a regulation takes effect from the date of its notification, or
where another date is specified in the regulations, from the date specified, for this is what s.
48 (1) (b) explicitly provides. Whether the requirement in s. 48 (1) (a) that the regulations
shall be notified in the Gazette would, viewed in isolation, call for the publication in the
Gazette of the regulations in their entirety is not a question that needs to be answered
because s. 5 (3) of the Rules Publication Act applies so that publication of a notice in the
Gazette that the regulations have been made and of the place where copies can be
purchased is a sufficient compliance with the statutory requirements respecting notification.
In Myer Queenstown Garden Plaza Pty. Ltd. v. Port Adelaide Corporation (1975) 11 SASR
504, at p 537 Wells J., referring to the requirement in s. 38 of the Acts Interpretation Act
1915-1972 (S.A.) that regulations "shall be published in the Gazette", said: "In the setting
of s. 38, and more especially because it is associated with the Government Gazette, the
word, in my judgment, means rather to make generally accessible or available to the
public". It is perhaps possible that the requirement in s. 48 (1) (a) that regulations "shall be
notified in the Gazette" means something less than this, but for the reason which I have
already given, I have no need to discuss this question. (at p405)
Section 32 of the Constitution
The Governor-General in Council may cause writs to be issued for the general elections of
members of the House of Representatives.
After the first election, the writs shall be issued within ten days from the expiry of a House
of Representatives or from the proclamation of a dissolution thereof.
Unlike the quoted Authority, in this case the Prorogue of the Parliament and the dissolution of
the House of Representatives was in that regard subject to Section 32 of the Constitution, hence
an unresolved constitutional issue that remains on foot, and where the subsequent writs issued by
the Governor-General therefore remain ULTRA VIRES, and without legal force, so also any
purported enforcement of Section 245 of the CEA1918.
THE QUEEN v_ PEARSON; Ex parte SIPKA (1983) 152 CLR 254
In accordance with constitutional practice a dissolution of the House of

Representatives or of both Houses occurs only on the advice to the
Governor-General of the Prime Minister. It is well known that during the
latter part of 1982 and early 1983 the Prime Minister, in repeated
announcements which were widely reported, stated that there would not be an
early election and towards the end of that period, that he was exploring the
possibility of an election in 1984. (See, e.g., The Australian, 3 February
1983.) However without any prior public notice the Prime Minister announced in
the late afternoon of 3 February 1983, that on his advice, the
Governor-General had that day agreed to a double dissolution of the Senate and
the House of Representatives; that the writs for the election would be issued
on 4 February 1983, the date for nominations would be fixed as 19 February
1983; for the polling day, as 5 March 1983, and for the return of the writs,
on or before 5 May 1983. Proclamations to this effect were issued on 4
Page 45
February 1983. (at p266)
6. Thus, although s. 32 of the Constitution allows for issue within ten days,
the writs were issued on the same day as the proclamation of the dissolution.
Although that was done in 1914, the practice since then has been to allow a
space of some days between the proclamation of a double dissolution and the
issue of writs for the elections. In 1951 the writs were issued nine days
after the proclamation; in 1974 the writs were issued nine days after the
proclamation; in 1975 the writs for four States were issued six days after the
proclamation and the writs for the other two States were issued ten days after
the proclamation. (See Commonwealth Gazettes of 19 March 1951, 4 April 1974
and 11 November 1975.) (at p266)
And
A right to vote is so precious that it
should not read out of the Constitution by implication. Rather every
reasonable presumption and interpretation should be adopted which favours the
right of people to participate in the elections of those who represent them.
(at p268)
WESTERN AUSTRALIA v_ THE COMMONWEALTH ; NEW SOUTH WALES v_ THE

COMMONWEALTH ; QUEENSLAND v_ THE COMMONWEALTH (1975) 134 CLR 201;
10. By the second paragraph of s. 57 his Excellency is empowered to perform

an executive act, namely, to convene a joint sitting of the members of the two
Houses of the Parliament. Once a joint sitting is convened the powers and
duties of the members present are defined by and derived from the third
paragraph of s. 57 and his Excellency has no power to increase or diminish
those powers or duties. The section provides that the members present at the
joint sitting may deliberate and shall vote together upon "the proposed law",
which means any proposed law which answers the requirements of the first two
paragraphs of the section (see Cormack v. Cope and Victoria v. The
Commonwealth). His Excellency is given no power to authorize or direct the
members present at a joint sitting to deliberate or vote upon any particular
proposed law.
It seems to be clear that the validity of the issue of the writs isn’t purely by the provisions of
Sections 12 and 32 nilly willy but rather as Section 2 indicates that the Governor-General shall
use the powers “subject to this Constitution” as such any legislated provisions under “Until the
Parliament otherwise provides” clearly is relevant as to the use of the powers of Section 12 and
32. The writs themselves acknowledge this by stating “subject to the law” and as such for all
purposes is intended to be so.
Section 9 of the Constitution however enshrines State legislative provisions as to Senate
elections as to time and places and therefore remains applicable as such.

COMMONWEALTH ; QUEENSLAND v_ THE COMMONWEALTH (1975) 134 CLR 201;
11. On behalf of the States it was argued that the proclamation must be
construed so as to give full effect to all that it contains, and that in the
absence of a statutory provision enabling a severance to be effected, the
inclusion of the concluding words of the proclamation rendered it entirely
Page 46
invalid. It was submitted that if those words amounted to a direction or
authorization they converted the proclamation from one of an executive to one
of a legislative character, and that if they are merely descriptive they show
that his Excellency intended to convene a sitting of a kind which he had no
legal power to convene, namely, a sitting at which the members present should
vote upon the Petroleum and Minerals Authority Act 1973. It was accordingly
submitted that the proclamation was ineffective to convene a joint sitting for
the purposes of s. 57. (at p241)
12. The power which his Excellency purported to exercise was purely executive
in character. The first paragraph of s. 57 empowered him to do one thing only
- to convene a joint sitting. The section did not require him to employ any
particular means for that purpose; it did not require him to issue a
proclamation, although no doubt the issue of a proclamation was a natural and
appropriate way of signifying in a formal manner that his Excellency has
exercised the power given to him. If a proclamation is issued for the purpose
of convening a joint sitting under s. 57, it is unnecessary, although it may
be convenient, that it should refer to the proposed laws upon which it is
expected that the members present at the sitting will vote. The concluding
words of the proclamation were therefore an unnecessary addition to its
operative provisions. In the case of a legislative instrument that contains
some invalid provisions the question of interpretation that arises "is
whether, after the extent to which the intended operation of the enactment is
invalid has been ascertained, it is nevertheless the expressed will of the
legislature that the whole or any part of the rest of the intended operation
of the enactment should take effect by itself as a law...." (Bank of New
South Wales v. The Commonwealth (1948) 76 CLR 1, at p 369 ). However, no
similar question of interpretation arises in the present case. The question
is whether his Excellency did convene a joint sitting. The answer, of course,
is that he did - in fact as a result of his act the members of both Houses
deliberated and voted together. If the concluding words of the proclamation
are regarded as a purported authorization and direction by his Excellency to
those present at the joint sitting to deliberate and vote on the six named
proposed laws, part of the proclamation was beyond power and invalid but the
invalidity of that part does not mean that his Excellency's act of convening a
joint sitting should be treated as nugatory. If the concluding words are
merely descriptive, the fact that the proclamation unnecessarily and
erroneously stated that those present at the joint sitting might deliberate
and should vote upon the Petroleum and Minerals Authority Act 1973 did not
mean that a joint sitting had not been convened. The ineffective words
unnecessarily included in the proclamation did not prevent it from taking
effect as an act by which his Excellency convened a joint sitting of the
members of both Houses of the Parliament. (at p242)
and
This submission is related to the

submission that the Governor-General's discretions either to prorogue or to
dissolve are alternatives and must be exercised once and for all; but it seems
to me that such a concept is quite foreign to the subject matter. It
translates a principle commonly applicable to a judicial or curial discretion
Page 47
into the field of executive discretionary power. For it is an executive
discretion or power which the Governor-General exercises. He does not act as
a persona designata in a curial or quasi-judicial role. He acts either on the
advice of the Executive Council or as an officer under the instructions of the
Queen, in all cases subject to the Constitution. No doubt it was envisaged in
1900 that the Queen would at times give instructions on the advice of her
United Kingdom ministers but it may now be taken that not only the
Governor-General as the medium through which the Queen exercises her executive
and prerogative powers but also the Queen herself acts on the advice of her
Australian ministers in all matters appertaining to the government of the
Commonwealth. Neither the Queen nor the Governor-General acts personally. This
is true of the powers of the Governor-General under s. 57. He in all aspects
exercises his powers under the section on the advice of an Australian
minister. He exercises executive power and there is no place for a concept
that the power is exhausted or dissipated by his exercise of the other
executive power, namely, the power to prorogue the Parliament. (at p278)
What ought not to be overlooked is the usage of the word “may” in Section 12 of the Australian
Constitution in regard of the Governor of a State and in Section 32 in regard of the
“Governor-General in council”
The word “may” leaves it entirely upon the relevant Governor or the “Governor-General in
council” to determine if the said governor or “Governor-General in council” should or
shouldn’t issue a writ in regard of an election. The relevant parts in itself do not commit the
Governor and/or “Governor-General in council” to issue writs. At most there is a usage of
the word “shall” where there is a dissolution. It doesn’t however compel the relevant
Governor or the “Governor-General in council” to issue a writ if there is no dissolution.
This means that the usage of the word “may” implies that the relevant “Governor and Governor-
General in council” may or may not decide to issue a writ upon their own personal
consideration. The fact that their personal “consideration” is applicable as to accept or
reject the advise of the Federal Executive Council ought to indicate that therefore the
“Governor-General in council” is not bound by the advise given as such. The term
“Governor-General in council” rather then the usage of the term “Governor-General”
indicates that the issue of the writs doesn’t apply to the Governor-General regardless of the
Federal Executive Council existing but rather that it is related to the advise of the Federal
Executive Council but not that the “Governor-General in council” is bound by this. As to
the reference of the “Governor of any State” this clearly is subject to Section 9, Chapter I,
of the Australian Constitution and as such the Governor of a State is bound to follow the
legal provisions of any writs being issued. This means that the relevant election period as
prescribed in the Sections 155, 156 and 157 must be adhered to. Likewise, Section 31 of
the Australian Constitution dictates that where a Writ is issued then the “Governor-
General in council” is bound to comply with the legal provisions enacted relevant to such
election and election period. As such, albeit the “Govern-General in council” and/or any
relevant Governor may or may not in certain circumstances issue writs, once any of them
decide or are compelled due to a dissolution to do so, then the writs must be in accordance
to the legal provisions as applicable at the time of issue of the writs.
Padfield v Minister of Agriculture & Fisheries and Food (1968) AC 997
(1968) 1 ALL ER 694 House of Lords - Lord Upjohn and Lord Hodson
Upjohn: - (Irrelevant consideration) “Here let it be said at once, he and his advisers have obviously given a
bona fide and painstaking consideration to the complaints addressed to him; the question is whether
the consideration was sufficient in law.”

Page 48
Clearly, in law, insufficient consideration was given where the writs were issued in breach of legal
provisions applicable at the time of the issue of the writs. As like any invalid legislation an
invalid issue of writs equally can be ignored.
Where any of the Governor and/or the “Governor-General in council” are in a position as to make
a consideration to issue or not to issue a writ then it must follow that those affected by such
decision ought to be entitled to contest the validity of such decision. Being it a voter, a
candidate or otherwise.
Likewise, where the relevant Governor and or the “Governor-General in council” issue writs
within the ambit of a dissolution then any person affected by the issue of such writs ought
to have a legal right to contest such writ(s), irrespective if the writs issues relate to more
then one seat. This as the validity of a writ, such as for the house of Representatives of a
State clearly covers more then one particular seat and it would be absurd if a person
legitimately could contest the validity of an election upon the basis that the writ was found
void but then the Court of Disputed Returns only direct the issue of writs for one particular
election to be held while all other seats that were subjected to the same void writ were to be
maintained as valid. Past decisions of the Court of Disputed Returns clearly restrict the
Court of Disputed Return to deal only with the validity of an election at a particular seat
and as such the Court of Disputed Return effectively has ruled out its own legal jurisdiction
to deal with any dispute against a writ issue that relates to more then one seat.
This apparent legal abnormality also left the Defendant no other course but to institute legal
proceedings in the Federal Court of Australia, as clearly, the disputing of the writ for the
House of Representatives seats, must be deemed as such to fall outside the legal
jurisdiction of the Court of Disputed Returns, at least by its own past rulings to limit
disputed elections to one seat.
That below indicates that indeed the avenue of Injunction was the appropriate way for the Defendant to
seek legal redress, as the Court of Disputed Returns “it has nothing to do with the ordinary
determination of the rights of parties who are litigants”, and hence could not deal with
constitutional based objections.
Holmes v Angwin, (1906) 4 (Pt 1) CLR 297 at 309. Barton J said;

"The character of the jurisdiction which has been exercised by Parliaments as to
election petitions is purely incidental to the legislative power; it has nothing to do
with the ordinary determination of the rights of parties who are litigants."
The following
Mr. WISE: I would suggest before the amendment is moved that there are two
questions involved here, which ought to be kept distinct. There is the qualification of a
member or the question as to vacancies on the one side, and the question of a disputed
return, which is a matter of altogether a different character. I apprehend that only
questions of disputed returns should be dealt with by the Supreme Court, but that the
Senate should have all control [start page 682] over all questions of order or decency
over its own body which might lead it to expel a member.
Underlines that the question of “disputed returns” should be dealt with by the Supreme Court
(High Court of Australia) and not by the Parliament as this related to a “judicial” matter.
Sir EDWARD BRADDON: It is almost essential, to my mind, that these

questions, more especially the question of disputed returns, should be determined by
the Supreme Court, and not by the Senate.
Page 49
As such, the Court of Disputed Returns is not the appropriate body to deal with a disputed return
unless it deals with the matter as an ordinary Court of law, this is does not. As such the title
“Court of Disputed Returns” is an abnormality, a constitutional misdemeanour, as it does not
provide the objectors with their constitutional and other legal rights normally entitled upon in a
Court of law.
but that the Senate should have all control [start page 682] over all questions of
order or decency over its own body which might lead it to expel a member. I
This indicates that it was aimed that the House would deal internally with “order and decency”
issues but leave judicial decisions over to the judiciary. The Court of Disputed Returns is
however not as such a Court of Law as ordinary the High Court of Australia is, regardless that it
may involve the same judges of the High Court of Australia, this, as the Court of Disputed
Returns does not operate in all manner as to the rights of the parties! Section 353 of the
CEA1918 therefore was ill conceived, in that as Mr Wise and Sir Edward Braddon pointed out a
disputed return is a judicial matter where as the question of “order” and “decency” were internal
House decisions.
Remarcable is that somehow the Parliament purported to give the Courts the power to the Court
of Disputed Returns to deal with election issues, but as this all along was considered to be a
judicial issue then it should have been that the Court of Disputed Returns should have been
constituted as an ordinary Court of law exercising federal judicial powers and not limited in time,
etc.
The very issue of dealing with “orders” and “decency” has been retained by the Parliament itself
and as such the Court of disputed Returns clearly was never intended to deal with non judicial
issues, and as such petitions actually cannot be incidental to judicial power and the Court of
Disputed Returns should operate as a ordinary Court of Law.
Holmes v Angwin, (1906) 4 (Pt 1) CLR 297 at 309. Barton J said;

"The character of the jurisdiction which has been exercised by Parliaments as to election
petitions is purely incidental to the legislative power; it has nothing to do with the ordinary
determination of the rights of parties who are litigants."
Clearly, this statement then must be deemed to be wrong, as the conception of the Court of
Disputed Returns was to deal with judicial decisions, not with purely incidental decisions to the
legislative power.
Clause 20.-Until The Parliament otherwise provides, any question respecting the
qualification of a member, or a vacancy in the Senate, or a disputed return, shall be
determined by the Senate.
Mr. BARTON: My hon. friend Mr. Carruthers has suggested an amendment to this
clause, which certainly should be made. I shall move:
To strike out in line 8, the word "return" and insert in lieu thereof "election."

Page 50
That is a wider term. It covers more ground and increases the necessary jurisdiction
of the House over such questions.
Mr. HOWE: Supposing a vacancy occurs in the House of Representatives, is it likely

that a State will be put to the expense of an election for one representative?
Mr. BARTON: The matter of vacancies in the House of Representatives is a subsequent

matter. This clause deals with the Senate,
Sir EDWARD BRADDON: It is almost essential, to my mind, that these questions,

more especially the question of disputed returns, should be determined by the Supreme
Court, and not by the Senate. We have found out from practical experience the necessity of
making this change, and submitting these questions to the Supreme Court, and I hope that
in making this great and high departure and forming a Federal Parliament we shall not run
into any errors which will necessitate any changes whatever in the early stages of our
Federal Government. I shall move:-
That the words "High Court" be substituted for "Senate."
[start page 681]
Mr. BARTON: I would ask Sir Edward Braddon not to have his amendment formally
put. This matter was also a subject of very considerable discussion in the Constitutional
Committee, and the clause now represents the result of that discussion It amounted to this:
There were a good many of us who thought that matters of this kind should be decided by
the Judges, instead of what we have found to be a fallacious tribunal, a Committee of the
Houses of Parliament. At the same time, it was thought better to leave the matter as it
stands in the Constitution, only you must put a proviso in the beginning. That is to say, the
words will be placed in the section, "until The Parliament otherwise provides." It seems to
me that it is a matter for the Parliament of the Commonwealth to determine whether
the Houses, after they are called together, shall determine this question, or whether
the Judges should do it. It is a matter for the Federal Parliament to deal with. It increases
the freedom of action of the Parliament of the Federation, and for that reason it is also
desirable to leave it in the hands of the Parliament.
Mr. SYMON: It is quite open to the Parliament to decide.
Mr. BARTON: It is quite open to it, and if the Parliament will not undertake the
matter itself, it will delegate it to the High Court. But that is a matter of internal
arrangement.
Mr REID: I do not intend to propose an amendment, but I express my very great regret
that the Drafting Committee have not seen fit to place in the Constitution the power of
determining these disputed returns by some judicial authority.
Mr. BARTON: We followed the instructions of the Constitutional Committee.
Mr. REID: I understood that the feeling was strongly the other way.
Mr. BARTON: It was carried this way.

Page 51
Mr. REID: I feel very strongly, looking at the constant scandals and outrages which
have occurred in the United States over this very question, when the existence of a
party has been at stake, that it is infinitely advisable that we should put in this
Constitution provision which shall protect the electors from frauds upon their rights,
which might be made to suit the interests of political party. It might happen that some
great struggle might be determined in the Senate of thirty-six members, according to
the decision of a political committee, as to whether a certain return was valid or not. I
think the time has come when we should alter this clause. I am perfectly sure that if it
is left to the Federal Parliament, that Parliament will never do it.
Mr. BARTON: It is done in England.
Mr. REID: But how long did it take? We all know how many years it took-an enormous
time, and an enormous struggle-before the power was taken out of the hands of Parliament.
Do we not remember the tremendous scandals which disfigured the election tribunals of
England when they were within the power of the House of Commons? I really think that I
ought to test the opinion of the Committee upon this, as I look upon it as a matter that
might at some future time affect the destinies of the whole of the Commonwealth, because
it is a very small body, and one vote might make all the difference.
Mr. BARTON: Substitute "High Court of Justice thereof."
Mr. REID: I would make it more elastic than that. I would prefer not to move an
amendment yet, but I hope we will settle it very soon.
Mr. WISE: I would suggest before the amendment is moved that there are two
questions involved here, which ought to be kept distinct. There is the qualification of a
member or the question as to vacancies on the one side, and the question of a disputed
return, which is a matter of altogether a different character. I apprehend that only
questions of disputed returns should be dealt with by the Supreme Court, but that the
Senate should have all control [start page 682] over all questions of order or decency
over its own body which might lead it to expel a member. I move:
To strike out the words, "or a disputed return."
Then we can deal with disputed returns in a subsequent section. I entirely concur with
what has fallen from my hon. friend Mr. Reid with regard to the power of the Election and
Qualification Committee to deal with disputed returns. I have had the advantage of
appearing before that body in every capacity. I have been there as counsel, I have
been there as member, and I have been there as the accused party, and I do not know
in which capacity I found them the least satisfactory.
Sir EDWARD BRADDON: I will put this question to the test by moving:
That the first words of the clause "Until the Parliament otherwise provides" be struck out.
Mr. REID: They had better be left in. If my hon. friend will allow me, I am just drafting
an amendment which I think will meet the case. I think we might pass on with the
amendment proposed by Mr. Wise, namely, to leave out the words "or a disputed return."
Then let the clause stand as it is, and by and bye I would suggest a new clause to follow

Page 52
that clause. I will ask my hon. friend Mr. Barton to draw up some clause that will meet the
difficulty.
Mr. BARTON: I am tired of drafting clauses.
Mr. REID: Well, will my hon. friend allow me to draft one?
Mr. BARTON: Certainly.
Sir Edward Braddon's amendment withdrawn; Mr. Wise's amendment agreed to

clause, as amended, agreed to.
Another difficulty exist with the provision of Section 383(1) which allow only a candidate or the
Electoral Commission to make an application for an Injunction. If this would be construed that
this would it the application to merely the seat of the candidate then this too would result that
effectively the disputed issue of the writs relating to all seats of the House of Representatives in
one State effectively would result that then an Injunction could be sought by one candidate and
the Court could find that there is a justified ground to issue the injunction but others seats
subjected to the same writ held invalid would continue to be unchallenged unless one of each of
those seat a candidate pursues litigation. This could hardly have been the intention of the
parliament and it would defy the right in common law of the Defendant where he would be
denied as a “voter” to pursue an Injunction in regard of any illegal practices the Australian
Electoral Commission may be guilty of or be alleged guilty of in regard of any seats for the
Senate or House of Representative he might wish to vote in. It appears that the Parliament
perhaps never envisigated that all the writs could be challenged albeit in WESTERN
AUSTRALIA v_ THE COMMONWEALTH ; NEW SOUTH WALES v_ THE
COMMONWEALTH ; QUEENSLAND v_ THE COMMONWEALTH (1975) 134 CLR 201
the conduct of the Governor-General in regard of the dissolution was in question.
It appears to the Defendant that for this the High Court of Australia is entitled to allow the Defendant to
dispute matters which are affecting his common law rights as a “voter’ being “enrolled”. Indeed,
the Defendant having refused to “vote” on the 10th day of November 2001 upon the position that
there was no valid election being held and so the poll held was invalid in law. As such, there is
no compliance required to vote in an election that isn’t an election in accordance to the
constitutional requirements (including laws enacted in aid of the Constitutional requirements.
Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi
[1999] HCA 27 (17 June 1999)
For constitutional purposes, they are a nullity. No doctrine of res judicata or issue
estoppel can prevail against the Constitution. Mr Gould is entitled to disregard the
orders made in Gould v Brown. No doubt, as Latham CJ said of invalid
legislation[100], "he will feel safer if he has a decision of a court in his favour". That
is because those relying on the earlier decision may seek to enforce it against
Mr Gould.
The Parliament exists of the Governor-General (for the Monarch) and those Members of
Parliament, which were duly and properly elected according to constitutional and other relevant
legislative provisions and then took up their seat in the Parliament.
Therefore, if there is no Parliament in session or summonsed, then the function of all
Departments seizes to exist, beyond the time of 3 years of the first sitting of the last Parliament.

Page 53
Section 64 doesn’t and neither must be perceived to provide the Governor-General any
constitutional powers to appoint Ministers without bothering ever to issue writs for any election,
where there is no Parliament in session or summonsed.
David Russell Lange v Australian Broadcasting Corporation

Sections 62 and 64 of the Constitution combine to provide for the executive
power of the Commonwealth, which is vested in the Queen and exercisable by
the Governor-General, to be exercised "on the initiative and advice"[35] of
Ministers and limit to three months the period in which a Minister of State may
hold office without being or becoming a senator or member of the House of
Representatives.
While the Constitution does provide for the expiry of the Legislature (Parliament) and not the
Executive. It is clear however, that the Governor-General, within the ambit of provisions of the
Commonwealth of Australia Constitution could ongoing appoint Ministers without any
elections being held. As such, the appointment of Ministers is for a limited period only, and then
this power of appointment cannot proceed without holding any session of Parliament within a
calendar year.

The requirement that the Parliament meet at least annually, the provision for
control of supply by the legislature, the requirement that Ministers be members of
the legislature, the privilege of freedom of speech in debate, and the power to
coerce the provision of information provide the means for enforcing the
responsibility of the Executive to the organs of representative government. In his
Notes on Australian Federation: Its Nature and Probable Effects[38], Sir Samuel
Griffith pointed out that the effect of responsible government "is that the actual
government of the State is conducted by officers who enjoy the confidence of the
people". That confidence is ultimately expressed or denied by the operation of the
electoral process, and the attitudes of electors to the conduct of the Executive may
be a significant determinant of the contemporary practice of responsible
government[39].
The Commonwealth powers are created by the Commonwealth of Australia Constitution and
are subject to there being a Parliament in session or a Parliament summonsed, apart of the period
before the first elections being held.
The framers made it a condition that there must always be a Parliament in session or
one summonsed within 10 days of the House of Representative expire or being
dissolved. Albeit, the writs are referred to in Section 32 of the Commonwealth of
Australia Constitution, there can be no summonsing of the Parliament if writs are
not issued.
Hansard 5-3-1891
Mr. PLAYFORD:
There solutions afterwards go on to provide for an executive, for a governor-

general, and for the appointment of his advisers:
such persons sitting in Parliament, and whose term of office shall depend upon
their possessing the confidence of the house of representatives expressed by the
support of the majority.
Page 54
Constitutionally, where the writs were invalid in 2001 then no Parliament could have been
sitting, as there were no members validly elected, and therefore neither any laws can be
enforced.
Part of a correspondence forwarded to the Commonwealth Director of Public

Prosecutions;
QUOTE part of 2-8-2005 correspondence

WITHOUT PREJUDICE
Commonwealth Director of Public Prosecutions 2-8-2005
C/o Judy McGillivray BA JBB
15th floor, 460 Lonsdale Street. Melbourne, Vic 3000
Tel; 96054333, Fax 9670 4295 Your reference; 05101011
Madam,
Thank you for your correspondence dated 1 August 2005, received today.
As I recall it, on 4 December 2002 you indicated that there was MERIT in my case and
submitted to the Court to adjourn matters as to enable the High Court of Australia to deal with
the S78B Judiciary Act 1903 constitutional challenge.
Contrary to your assertion, this constitutional challenge has not been disposed of and remains on
foot. Hence, I view, the current charge is ill conceived, as until and unless the Court pronounces
in favour of the legislations I objected against, those legislative provisions remain NULL AND
VOID (Ultra Vires). Your letter, dated 1-8-2005 does not refer to my 1-8-2005 correspondence
to the Deputy Registrar, and this most likely because your letter may have been sent out unaware
my 1-8-2005 correspondence. I would urge you to consider the reference to Foster (1950) S.R.
(N.S.W.) 149, at p151 (Lord Denning, speaking on the role of an advocate)
It is my view, of our previous contact at the Court that you pursued matters honourable, and as
such my reference to Foster is not seeking to have a go at you, so to say, of past conduct as
person but rather that I desire you to be upfront to the Court about the current legal mess.
As you stated, “I act on behalf of the Australian Electoral Commission (AEC) in relation to
the charge and summons..” Now, I for one, if I were in your position would have grave
concerns as to seemingly having been set up by my client to deceive the other party and the court
on 4 December 2002, albeit then it being unknown to yourself, to me and the court.
Again, my impression of your conduct on 4 December 2002 was that you sought to act
honourable, but afterward, that is a considerable time later, I discovered that you have been, so to
say, uses as a fool by your client. After all, while you did submit to the Court to have the matter
adjourned person the hearing of the S78B constitutional challenge with the outstanding appeal
before the High Court of Australia, your client (Australian Electoral commission) was in fact, so
to say, playing a dirty game. This, as unbeknown to both yourself, my self and so also the
Magistrates Court at Melbourne, already in March 2002 your client had filed for a Chamber
Summons to have the appeal struck out/dismissed or whatever. In view that they did not serve
me with the Chamber Summons the true version of it remained unknown. Then on 23-10-2002
your client then filed for a NOTICE OF MOTION, which neither was made known to you,
myself and so neither to the Magistrates Court of Victoria, sitting at Heidelberg, on 4 December
2002, to have my appeal dismissed. On 3 October 2003 this NOTICE OF MOTION came
before the High Court of Australia, and I had filed numerous written objections, including that I
was never properly served with the NOTICE OF MOTION. The High Court of Australia did
not make a formal ruling to dismiss any of my objections, as such, upon legal principles, never
invoked any legal jurisdictions, but Gummow did comment that the NOTICE OF MOTION
was part of the Application Book, of 19 August 2003.
END QUOTE part of 2-8-2005 correspondence
Page 55
And

As I indicated above, the onus is upon the Commonwealth of Australia to obtain a Court
order in its favour when legislation is challenged to constitutionally validate the legislation.
I need to do no more but to make an oral and/or written objection, and do not even need to
pursue litigation in that regard! It would be a gross error on your part if you were to assume
otherwise.
You now have the option, so to say, to sell your sole and ignore your oath made or you will not
stand for being used by your client to have deceived the Court on 4 December 2002 and will seek
matters to be appropriately sorted out before any further litigation is pursued against me.
Your client, provided me with a form 17 Authorities of judicial decisions, but as I have set out
extensively to your client, those decision were made at a time when the Hansard records of the
Constitutional Convention Debates were not permitted to be used in the courts, where as since
the 1992 Franklin Dam case matters are different now that the Hansard records of the
Constitutional Convention Debates now are even used (albeit often in an incorrect context) by
the High Court of Australia itself. Hence, whatever past judicial decisions were, they must be
looked at again in view of the intentions of the Framers as expressed in the Hansard records of
the Constitutional Convention Debates.
In my view, where I was very much pursuing constitutional issues and used all efforts to try to
have matters heard, but your client using different lawyers then already sought to circumvent this
and in the end perverted the course of justice, as I view it, then I do not accept that the 20002
constitutional challenge has been disposed off. In my view, your client had an obligation to
follow through with the constitutional challenge to be determined by the High Court of Australia,
and have the lawyers it used representing in the High Court of Australia to make known to the
Court that there was a 4 December 2002 order on foot for this constitutional challenge.
As your client used deceptive conduct to not just frustrate but to prevent the constitutional
challenge to be heard and determined, then your client hardly could have the benefits of the fruits
sowed by this deceptive and misleading conduct. Neither do I accept therefore your proposition
that the 2002 case be joined, as this is a case that must be dealt with first of all in its own right
before the 2004 alleged failure to vote is to be dealt with. After all, if in the end my case were to
be found proven, and there is no obligation to vote, then clearly the 2004 issue would not arise.
Further, if indeed the 2001 election was unconstitutional then obviously the subsequent 2004
election would be unconstitutional. As they say in legal principles, no subsequent court order can
validate an court order made without legal jurisdiction!
And

As I was a candidate in the (purported) election, it ought to be obvious that no court ever had to
deal with a candidate objection to vote as having to vote for those he/she stood against. Hence,
in that regard also, no authority of the past can be relied upon as being a proper authority!
Just consider yourself to apply for becoming a partner in a law firm, and you then having to elect
other lawyers who also want to become a partner in the same law firm as to determine that the
one with the most votes will get the partner ship! Would that not be a nonsense? Well, so is the
unconstitutional demand to for me to vote for those candidates I oppose and stand against!
In my view, I should not be the one having to pursue all kinds of litigation what really is the task
of the Australian Electoral Commission, as to ensure that it conduct FAIR and PROPER
Page 56
elections within the constitutional framework the Commonwealth Electoral Act was to have
been enacted. As the Framers made clear, if the Commonwealth were to have constitutional
powers to define/declare “citizenship” then it could in effect interfere with the political rights of
an elector in a State. By this prevent electors to vote in State lections and by this cause the
abolition of the States! Could you as an OFFICER OF THE COURT really lend your hand to
allow this undermining of State legislative powers to not just occur but to participate in this, if
not directly then indirectly, by assisting your client in the disgraceful manner of having misled
the courts, yourself and myself?
Why on earth did your client conceal from the Court on 4 December 2002 about what it was
doing in the High Court of Australia? Surely, their ulterior motives ought to be investigated?
QUOTE part of 1-8-2005 CORRESPONDENCE

WITHOUT PREJUDICE
Magistrates Court of Victoria, at Heidelberg 1-8-2005
C/o Jason Cabral Deputy Registrar
Phone 84582000
Fax 84582001 Ref; NV13 Hearing date 4-8-2005
Cc; Chief Magistrate, Magistrates Court of Victoria
Premier of Victoria Mr Steve Bracks, Parliament House, Fax 03 96515054
Australian Electoral Commission
Divisional Returning Officer for Division of JAGAJAGA
C/o Mr R H W MARTIN Fax 9457 6000
REPLY PAID 146, HEIDELBERG VIC 3084
AND TO WHOM IT MAY CONCERN
Sir,
Despite of my previous correspondences to you, I have as yet not received any response
as to even confirm having received the faxed correspondence, let alone a more detailed response.
For the record, my computer keeps a record of faxes send out, and as such, I for one have a
record that those faxes were send and completed in sending.
In my view, if the matter were to proceed for hearing, I take the position it may last several days
for the Court to deal with the matter.
I notice that the charge makes a claim “did fail to vote” however, I have not noticed any
supportive evidence as to set out why this claim as such was made. Being it a criminal trial,
under criminal provisions, then surely I am entitled to be informed of relevant evidence prior to
any trial commencing, so that I can prepare any case in response. See also below for further set
out of averment of evidence. As the Framers of the Constitution Convention Bill 1898 made
clear that “DUE PROCESS OF LAW” must be provided in regard of any claims about breaches
of Commonwealth law, hence, this includes a proper and detailed set out why this claim is made.
END QUOTE part of 1-8-2005 CORRESPONDENCE
And
QUOTE part of the 1-8-2005 CORRESPONDENCE

no legal justification for this!
As author of the 30 September 2003 published book;
Page 57
ISBN 0-9580569-6-X
I then also quoted the following;
Hansard records 17-3-1898 Constitutional Convention Debates
Mr. DEAKIN (Victoria).-
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.
Mr. SYMON (South Australia).-I wish to say one word or two before we part. I do not
intend to enter into any detailed examination of, or any elaborate apology for, the
Constitution which we have been engaged in framing. But, sir, no man can remain
unmoved upon this momentous occasion. We who are assembled in this Convention are
about to commit to the people of Australia a new charter of union and liberty; we are
about to commit this new Magna 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.
Again;
reasonably aspire.
And
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.
And, if you had any appropriate education in constitutional provisions and limitations then you
may also be aware that the constitution was framed upon the widest possible election provisions
applicable in any State at the time of Federation.
In Queensland, in 1899 it was a criminal offence, to seek to force a person to vote, etc, which by
the subsequent Federation became applicable to all States as part of the minimum standards
applicable in the term “POLITICAL LIBERTY”!
CRIMES ACT 1914 (Cth)

28 Interfering with political liberty
Any person who, by violence or by threats or intimidation of any kind, hinders
or interferes with the free exercise or performance, by any other person, of any
political right or duty, shall be guilty of an offence.
Penalty: Imprisonment for 3 years.
Greg T (QC)
Page 58
And
QUOTE
----- Original Message -----
From: Greg Tudehope
To: John Wilson ; JUSTICE GROUP ; Peter Gargan
Sent: Tuesday, July 13, 2004 8:51 PM
Subject: Re: $7,009.80 Bill of Costs for not voting.
John,
I don't bother to vote for any of the dishonest grubs in
Queensland either and as yet I have not been threatened with any
offence for not doing so.
I have contacted the Electoral Commission and stated that if any person ever
threatens me for not voting I will take advantage of the law that applies in
Queensland but they claimed that they were unaware of what I was talking
about.
The facts are that if I am threatened by any body for not voting it is a criminal
offence and I believe it would be the same in NSW but I am unaware of what
the state of the law is down there.
I have attached a copy of the section of the Criminal Code Qld that applies here.
s 102 81 s 103
Criminal Code Act 1899
102 Undue influence

Any person who—
(a) uses or threatens to use any force or restraint, or does or threatens
to do any temporal or spiritual injury, or causes or threatens to
cause any detriment of any kind, to an elector in order to induce
the elector to vote or refrain from voting at an election, or on
account of the elector having voted or refrained from voting at an
election; or
(b) by force or fraud prevents or obstructs the free exercise of the
franchise by an elector, or by any such means compels or induces
an elector to vote or refrain from voting at an election;
is guilty of a misdemeanour, and is liable to imprisonment for 1 year, or to
a fine of $400.
Greg Tudehope (QC) Qld Criminal

END QUOTE
QUOTE
Victorian Consolidated Legislation

Page 59
CRIMES ACT 1958 - SECT 354
Indictments
354. Indictments
Upon the application of any person supported by an affidavit disclosing an indictable

offence and either that the same has been committed by some body
corporate or that a court has declined or refused to commit or hold to bail
the alleged offender or that no presentment was made against him at the court
at which the trial would in due course have taken place, or upon the
application of the Director of Public Prosecutions, it shall be lawful for the
Full Court to order the Juries Commissioner to summon a grand jury to appear
at a court to be holden at a time and place to be mentioned in the order; and
upon receipt of such order the Juries Commissioner shall summon not less than
twenty-three men to attend at such court at the time and place aforesaid to
inquire present do and execute all things which on the part of the Queen shall
then and there be commanded of them, and such men shall be taken from the jury
roll of the jury district in which such place is situate and at the time and
place aforesaid the said Juries Commissioner shall bring into court the said
order with the name, occupation and date of birth of every grand juror written
on a panel signed by him and sealed with his seal of office and shall deliver
the said panel to the proper officer of the said court, who shall in open
court call aloud the names of the grand jurors on the said panel one after
another, and the twenty-three men so first drawn and appearing or if
twenty-three men shall not appear such of them as do appear not being less
than twelve men shall be the grand jury and shall be sworn and act as such
accordingly:
Provided always that every such order shall be delivered to the

Juries Commissioner ten days before the day on which the indictment is
intended to be preferred.
END QUOTE
Again;
John,
I don't bother to vote for any of the dishonest grubs in
Queensland either and as yet I have not been threatened with any
offence for not doing so.
I have contacted the Electoral Commission and stated that if any person ever
threatens me for not voting I will take advantage of the law that applies in
Queensland but they claimed that they were unaware of what I was talking
about.
The facts are that if I am threatened by any body for not voting it is a criminal
offence and I believe it would be the same in NSW but I am unaware of what
the state of the law is down there.
I have attached a copy of the section of the Criminal Code Qld that applies here.

Page 60
s 102 81 s 103
Criminal Code Act 1899
While Mr Greg Tudehope (QC) Qld Criminal is a barrister in Queensland Criminal law, he
obviously was not aware of how it applied constitutionally to other States. However, in my
published books I have canvassed this extensively, that this is applicable and quoted Hansard
records for this also, of which some is quoted below;
If the Commonwealth is created they have all their electoral rights conserved to them
under this Constitution.
As any Commonwealth law must apply equally throughout the Commonwealth of Australia, then
any such rights preserved for Queenslanders by this clearly also became applicable for all other
electors of other States upon federation. Not to apply this would have been meaning that different
legislative provisions were to have been enacted for each State by the Commonwealth, which
itself would have been unconstitutional! The very purpose of having unified electoral provisions
was to provide the Commonwealth with legislative powers but so broadly based upon the
minimum applicable in any State. By this, providing that the minimum Standards ogf any State
became applicable to all States.
Mr. BARTON: I will come to that in a moment. What I wish to say now is that under the
proposal there is no deprivation to the women of South Australia. They have at present
their right to vote for all the concerns of the State. If the Commonwealth is created they
have all their electoral rights conserved to them under this Constitution. The only
thing would be that whether they were allowed to vote or not, the voting would have to be
so regulated that South Australia would only be allowed her proper strength in taking the
referendum.
And
Mr. DEAKIN: Some days ago I was one of those who was struck, on consideration, by
the fact that it was possible to be confronted by such a problem as has just been presented
to us. We ought to realise that the proposition of my hon. friend Mr. Barton means an entire
change in principle in the Bill of 1891 as to the making of amendments in the Constitution.
This is one of the most important provisions of the Bill. As adopted in 1891, it ran:
And if the proposed amendment is approved by the Conventions of a majority of the

States, and if the people of the States whose Conventions approve of the amendment are
also a majority of the people of the Commonwealth, the proposed amendment shall be
presented to the Governor-General for the Queen's assent.
Under this scheme a very large State, by mere abstinence on the part of its electors,
might render-the vote of a large majority of those who went to the poll fruitless. It
does not provide for the rule of the majority. On consideration it appeared to me that this
was unjust, and that the suggestion made by Mr. Lewis, the hon. member for Tasmania,
was just, inasmuch as it provided for the complete carrying out of the axiom requiring a
majority of the States and a majority of the people's vote. The only difficulty in the way of
Mr. Lewis's proposal was the franchise of South Australia. I differ from Mr. Barton in
believing that the votes of female electors of South Australia must be taken into account.
Both male and female votes must go to form the majority of the State. But when the
Page 61
question arises whether in addition to having a majority of the States you have a majority of
the people. Then in order to put South Australia on a fair basis you must omit the female
votes, because the majority has to be a majority upon a uniform franchise.
And
Mr. BARTON: It has been suggested that the difficulty could be overcome by the
following amendment, which I will move:
To strike out sub-section 4, with the view of inserting the following sub-section: And if a
majority of the States and a majority of the electors voting approve the proposed law, the
proposed law shall be presented to the Governor-General for the Queen's assent; but, until
the qualification of electors of Members of the House of Representatives becomes uniform
throughout the Commonwealth, only one-half the votes for and against the proposed law
shall be counted in any State in which adult suffrage prevails.
Amendment agreed to.
Again;
and a majority of the electors voting
Therefore, it is not as to the voters registered and entitled to vote but rather the majority of those
actual voting. People not wanting to vote, and not casting any vote therefore cannot be counted.
As was stated;
by mere abstinence on the part of its electors, might render-the vote of a large
majority of those who went to the poll fruitless.
Clearly, it was recognised that electors could abstain from voting.
And this was provided for;
As for example under Queensland Criminal law it was a crime to force a person to vote!
Therefore, the same continues to apply, regardless if since federation this legislation was
maintained, as the Constitution embodies this principle throughout the Commonwealth!
Again;
QUOTE 26-7-2005 CORRESPONDENCE
Despite of the content of my 15-7-2005 correspondence, faxed to you and Mr King that day, I
have not received any response and as such now request you to place the matter in the hands of
the chief Magistrate of the Magistrates Court of Victoria for full and proper investigation. Also, I
request you to clarify if you issued the summons in ADMINISTRATIVE capacity or in a
JUDICIAL capacity.
END QUOTE 26-7-2005 CORRESPONDENCE

. My view is;

Page 62
The Courts are not there to convict people but that they are there to hand down
JUSTICE. If the latter includes a conviction then so be it. This means that the court
must act without bias and seen to act without bias to hear and determine matters.
If any court acts in a way to score a conviction, either deliberately or without intention, by
denying a person of a fair and proper hearing then this itself undermines the credibility of the
court in question and also undermines the foundations of the democratic system.
END QUOTE part of the 1-8-2005 CORRESPONDENCE
And

The Commonwealth Parliament can pass whatever proposed legislation it desires, but once such
a legislation has been enacted and has been challenged, then the legislation objected against is
and remains ULTRA VIRES unless and until a competent court has ruled in favour of that
legislation objected against.
Hansard 1-3-1898

And;
Mr. GORDON.-
The Constitution does provide in certain Sections;

“Until the parliament otherwise provides”
But that must be understood in its proper context!
Mr. BARTON.-
If we are going to give the Federal Parliament power to legislate as it pleases with
regard to Commonwealth citizenship, not having defined it, we may be enabling the
Parliament to pass legislation that would really defeat all the principles inserted
elsewhere in the Constitution, and, in fact, to play ducks and drakes with it. That is
not what is meant by the term "Trust the Federal Parliament."
Again;
we may be enabling the Parliament to pass legislation that would really defeat all the
principles inserted elsewhere in the Constitution, and, in fact, to play ducks and
drakes with it. That is not what is meant by the term "Trust the Federal Parliament."
Therefore, whatever electoral provisions may be enacted by the Commonwealth of Australia, it
remains subject to what the Framers of the Constitution intended.
Mr King clearly failed to pursue this option, to have first matters placed before the Court to
validate any legislation that was objected against!

Page 63
It is not the duty of the Magistrates’ Court of Victoria to sort out the legal mess created by the
Federal Parliament as to what Mr King can or cannot do. The appropriate course would have
been for Mr King, the informer, acting for the Australian Electoral Commission, to have pursued
this before a competent court dealing with constitutional issues. It should have challenged the
matter in the High Court of Australia against the Commonwealth of Australia to obtain a
judicial ruling for this.
END QUOTE part of 1-8-2005 CORRESPONDENCE
And

In Preston Ice and Cool Stores Pty Ltd. v. Hawkings (1955) V.L.R. 89; (1955) Austin Digest
337.
“It was held that where there is a review/appeal the party having sought such review/appeal
is not bound by the grounds used in the original hearing but may refer to other grounds
even so, such grounds had not been upon which the original order was based.”
One has to question if the $20.00 original fine issued, I have already contested to be
constitutionally valid, was the purported original hearing by STAR CHAMBER COURT
conduct, IN MY ABSENTEEISM, then what are the proceedings before the Magistrates Court
of Victoria about?
How can we have that the Commonwealth of Australia dictate, contrary to the
NULLIFICATION provisions, some extra process that by STAR CHAMBER COURT ruling
a Electoral Officer, can issue a fine, undermining the authority of the magistrates Court of
Victoria to determine the matter in the first place DE NOVO, and then set in train some other
legal process but then dictating to the Magistrate/judge/judicial officer how to go about within
State legal provisions and State Court procedures as to the accepting of evidence. The
Commonwealth of Australia clearly has hereby interfered with the State jurisdiction of the State
of Victoria, as with other States, unconstitutionally. There is absolutely no constitutional powers
for the commonwealth of Australia to do so. It may pass legislation and have them enacted by the
governor-General but it can do no more. The right to have certain legislation does not include
legal or other administrative enforcement, as this would undermine the very nature of the limited
POLITICAL UNION upon which the Federation was established.
END QUOTE PART OF 1-8-2005 CORRESPONDENCE
(Note; typing errors of the original documents were retained as such in the quotations)
This includes the right not to vote;

they have all their electoral rights conserved to them under this Constitution.
The fact that after federation the States began to make voting compulsory did not in any way
give the Commonwealth of Australia any right to circumvent the minimum standards applicable
at time of federation that voting was “VOLUNTARILY”!
With the cases of;
• Judd v McKeon (1926) 38 CLR 380

• Lubcke v Little [1970] VR 807
• Faderson v Bridger (1971) 126 CLR 271
• Krosch v Springell; ex parte Krosch [1974] QdR 107
• O’Brien v Warden (1981) 37 ACTR 13
Page 64
None appear to be dealing with the fact that the electoral rights “not to vote” was “conserved” in
the Constitution as much as the right “to vote”. The cases merely seem to go into details as to
the reasons why a particular person did not vote. None of them were apparently candidates either
in any of the cases, and as such no argument as to having to vote for an opponent by way of
preference voting.
None of the aforementioned cases the Commonwealth Electoral Commission relies upon in his
Background No.17 document related to “citizenship” and the issue of “franchise” such as the
Defendant pursues to do. Simply this case is unique in that regard.
http://apps.aec.gov.au/_content/Why/committee/jscem/2001_election/sub147/sub147.htm
voters in the Antarctic. At the moment the only way for voters living at Australian
Antarctic research bases to vote is by having ballot papers faxed to those bases. After the
close of polls the Assistant Returning Officer (ARO) for each base phones the votes
through to the AEO for Tasmania. Voting is not compulsory for Antarctic electors because
the secrecy of the vote cannot be assured due to the process used to transmit the results.
Under an internet-based system these electors would have the right to a secret ballot
restored to them.
All laws enacted by the Commonwealth of Australia must be applicable throughout the
Commonwealth of Australia, and a s such Antarctic cannot be excluded from any compulsory
voting, if this was argued to be enforceable, as either the laws applies through the entire
Commonwealth of Australia or it does not apply anywhere.
Hence, the exclusion of people in Antarctic to vote makes it in itself unconstitutional. For this
also no one then can be forced to vote.
http://www.aec.gov.au/_content/What/media_releases/1998/sep/franchise.htm
By 1902 most men and women were able to vote at federal elections. However, what were
referred to as ‘Aboriginal natives’ of Australia, Asia, Africa or the Pacific Islands were
excluded from enrolment and voting.
And
It was 1949 when Aboriginal people were given the right to enrol and vote at federal
elections, and then only as long as they were entitled to enrol for State elections or had
served in the defence forces.
The truth is that constitutionally Aboriginals who were entitled to vote in State elections by
Section 41 of the Constitution then had an AUTOMATIC right to vote in Federal elections!
Reality is that after Federation Aboriginal were robbed unconstitutionally of their rights to vote,
where they had State franchise.
This is where the problem lies that from onset since Federation all kinds of laws were enacted
and even more than 100 years there still is no proper understanding as to what is constitutionally
appropriate, because of lack of proper trained “constitutionalist” being involved in the way laws
are enacted.
For this Court to INVOKE legal jurisdiction the issue therefore also is if the provisions of
Section 245 of the CEA1918 are themselves constitutional valid in regard of enforcing such
provisions where it is not being done throughout the Commonwealth of Australia?

Page 65
The issue is not if it might be difficult to vote in the Antarctic but that a law of the
Commonwealth of Australia to force compulsory voting can only be valid if it applies for the
whole of the Commonwealth of Australia. And this clearly does not appear to be so.
WHAT CONSTITUTES A RELIGIOUS OBJECTION?
&
UNCONSTITUTIONAL DISCRIMINATION/DISABILITY
&
Communication, or there lack thereof, by CDPP (Prosecutor)
In May and June 2006 the Defendant provided the Commonwealth Director of Public
Prosecutions with correspondences which included most of the submissions the Defendant
intended to make to the Court, including for a “PERMANENT STAY” of orders, and also about
religious objection, seeking the Commonwealth Director of Public Prosecutions to consent to a
“PERMANENT STAY” of the proceedings relating to the charges. However, having done so,
the Defendant then is faced with the Commonwealth Director of Public Prosecutions being for
warned as to what the Defendant intends to do in most issues and as such may seek to counteract
those arguments. It is not the counter argument itself that the Defendant is worried about, but the
deceptive conduct employed in the past by the lawyers acting for the Australian Electoral
Commission in their litigation to the extend as to deliberately replace words in what is claimed to
be an Authority being quoted as to pretend to the Court that a judge made a certain ruling even so
the ruling is a fraudulent version to deceive the Court. Such as Mr Peter Hanks QC did before the
Federal Court of Australia and later again made a deceptive statement to the High Court of
Australia.
For example, checking the transcript of the hearing, it is noted that Mr Peter Hanks QC in his
argument in point 22 and 22.1 of the OUTLINE stated the following;
QUOTE
22 In Foster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 445, Gibbs J referred
to the general rule that “not less than” so many days refers to clear days – “unless the
context or the statutory intention reveals a contrary intention”.
END QUOTE
His quotation is again false and misleading!
Mr Peter Hanks QC quoted of the judgment the following;

QUOTE
“unless the context or the statutory intention reveals a contrary intention”
END QUOTE
This ought to be;
QUOTE
“unless the context or the subject matter reveals a contrary intention”
END QUOTE
Clearly, that is a gross deception. In legal terms there can be a significant difference in a case for
the Court to deal with a “statutory intention” versus “subject matter”.
Page 66
Mr Peter Hanks QC stated to the Court (7 November 2001);
The researches of counsel have been unable to find provisions using simular language (“not
less that” or “at least” a number of days) where the language is as clear and specific as
found in ss156(1) and 157.
Thousands upon thousands of Internet references can be found upon a search “shall not be less
than” or “shall not be less that”. As such this statement by Mr. Peter Hanks QC for the
Australian Electoral Commission was a fraudulent statement. Likewise other statement were
found by the defendant to be deceptive and/or misleading.
We also have the fact that Counsel Mr peter Hanks QC argued the authority of the
ASSOCIATED DOMINIONS ASSURANCE SOCIETY PTY. LTD. v. BALMFORD

(1950) 81 CLR 161
What counsel did however was to make a false and misleading presentation of what the case
really was on about.
As the authority stated:
The notice actually served did not "specify" such a period: it "specified" a period which
was too short by one day, and the Acts Interpretation Act does not affect this position.
Mr Peter Hank QC didn’t argue that the authority wasn’t relevant, to the contrary he argued its
relevance only by misrepresenting how it applied and what the authority really was on about. As
such, it had nothing to do with “within” as Mr Peter Hanks QC argued as clearly the usage
“within” was in a different context and not at all as Mr Hanks sought to imply and did imply.
It ought to be considered a serious matter that a barrister employs these kind of tactics, indeed
deceptive tactics, but it seems the Australian Electoral Commissioner does not seem to worry
about the means as long as it achieves his end results.
Because I expect the Commonwealth Director of Public Prosecutions to come up with any
nonsense and unable to verify the correctness of any claims they may make about any
AUTHORITY they may refer to I am left no alternative but to present my own research.
Lawyers are “OFFICERS OF THE COURT” but I experienced that when it comes to the
Australian Electoral Commissioner being the instructing party then it seems to me from
experiences their “oath of alliance” is worthless and they cannot be trusted, as set out also further
in this ADDRESS TO THE COURT.
It is my view, that had Mr Peter Hanks QC not concealed matters and not presented fraudulent
Authorities and how they applied then the Federal Court of Australia would not have ruled that it
had no legal jurisdiction, and would in fact have granted the orders I sought. And in the end this
case would never have eventuated before this Court as then matters could have been addressed
appropriately before any federal election had been held!
I take the position that Subsection 245(14) of the Constitution is not and cannot be regarded to
limit the right of a objection to be only a (theistic belief ) “religious objection” but includes also
any secular belief objection.
If Subsection 245(14) was limited to being “theistic belief” then it would be unconstitutional.
Page 67
QUOTE 4-6-2006 CORRESPONDENCE FAXED 10.36 pm 4-6-2006

WITHOUT PREJUDICE
C/o Judy McGillivray, lawyer
Melbourne Office, 22nd Floor, 2000 Queen Street, Melbourne VIC 3000
GPO Box 21 A, Melbourne Vic 3001
Tel 03 9605 4333, Fax 03 9670 4295 ref; 02101199, etc
T01567737 & Q01897630
AND WHOM IT MAY CONCERN
Re; “religious objection” (Subsection 245(14) of the Commonwealth Electoral Act 1918)
offend Section 116 if the Constitution if it excludes secular belief based objections.
Madam,
As you are aware I continue to refer to my religious objection albeit do wish to indicate
that while using the “religious objection” referred to in subsection 245(14) of the
Commonwealth Electoral Act 1918 I do not consider that this subsection 14 limits an objection
only to an “theistic belief” based “religious objection” but in fact it also includes any secular
belief based “religious objection”, as it must be neutral to whatever a person uses as grounds for
an “objection”. This, as Section 116 of the Constitution prohibit the Commonwealth of
Australia to limit the scope of subsection 245(14) to only “theistic belief” based “religious
objections”. Therefore, any person having a purely moral, ethical, or philosophical source of
“religious objection” have a valid objection.
Neither do I accept that a person making an “religious objection” requires to state his/her
religion, and neither which part of his/her religion provides for a “religious objection” as the
mere claim itself is sufficient to constitute what is referred to in subsection 245(14) as being a
“religious objection”. Therefore, the wording “religious objection” is to be taken as “objection”
without the word “religion” having any special meaning in that regard.
If you do not accept this as such, then there is clearly another constitutional issue on foot!
I request you to respond as soon as possible and set out your position in this regard.
Awaiting your response, G. H. SCHOREL-HLAVKA

END QUOTE 4-6-2006 CORRESPONDENCE FAXED 10.36 pm 4-6-2006
QUOTE 7-6-2006 CORRESPONDENCE FAXED 7-6-2006

WITHOUT PREJUDICE
C/o Judy McGillivray, lawyer
Melbourne Office, 22nd Floor, 2000 Queen Street, Melbourne VIC 3000
GPO Box 21 A, Melbourne Vic 3001
Tel 03 9605 4333, Fax 03 9670 4295 ref; 02101199, etc
T01567737 & Q01897630
AND WHOM IT MAY CONCERN
Re; Charges, etc
Madam,
With proceedings due next month, I view it would be more appropriate if you were to
make some effort as to communicate with myself regarding matters relating to the charges and
indeed the legal justification of them. After all, the Commonwealth Director of Public
Prosecutions may be litigating against many people allegedly failing to vote, besides myself, and
it may be born out by my material that none of such litigation could be constitutionally valid. In

Page 68
my view, the Commonwealth Director of Public Prosecutions must consider ALL RELEVANT
MATERIAL as to ensure it is not pursuing vexatious charges.
I assume that while you are a lawyer, more then likely you are not a “constitutionalist”, and as
such may lack the experiences and competence to understand and comprehend the material I am
relying upon, and for this you may do better to perhaps seek to consult a “constitutionalist” who
is appropriately trained in these matters. After all, if a “constitutionalist” were to conclude that
indeed I am on the right track that the charges have no constitutional validity then you could
surely save the Courts time to hear and determine vexatious charges or even to try to attempt to
do so.
Albeit, I am still working on the DRAFT version of the ADDRESS TO THE COURT, it
nevertheless is already comprehensive and would indicate to a “constitutionalist” that the charges
are ill conceived and without any constitutional bases to proceed with, and as such I am willing
to provide an electronic copy to you of the DRAFT, albeit not completed, version so you may
perhaps seek advise of a “constitutionalist”.
Awaiting your response, G. H. SCHOREL-HLAVKA

END QUOTE 7-6-2006 CORRESPONDENCE FAXED 7-6-2006
Firstly, I do wish to quote Section 117 and then 116 of the Constitution, both being relevant;
117 Rights of residents in States

A subject of the Queen, resident in any State, shall not be subject
in any other State to any disability or discrimination which would
not be equally applicable to him if he were a subject of the Queen
resident in such other State.
Despite this, the Defendant continues to find that he is excluded from accessing High Court of
Australia, Federal Court of Australia and other AuslII.edu files. This despite ongoing complaints
filed via the Victorian Government, High Court of Australia, Federal Court of Australia, etc.
It appears to the Defendant that this denial of access to judgments has been to try to limit the
Defendant to have relevant Authorities for litigation on foot.
After having filed a complaint via the Victorian Government then for about 2 weeks access was
enabled, only to be excluded again, as such, it is a deliberate conduct to prevent me to research
judgments on record so as to frustrate me in legal proceedings.
I view that this is in breach of Section 117 of the Constitution.
Because of this deliberate blockage to access Australian Authorities I am forced to rely often
upon US Authorities. In view that in the USA there is also a prohibition to legislate in regard of
religion then the equivalent Authority can be relied upon.
116 Commonwealth not to legislate in respect of religion

The Commonwealth shall not make any law for establishing any
religion, or for imposing any religious observance, or for
prohibiting the free exercise of any religion, and no religious test
shall be required as a qualification for any office or public trust
under the Commonwealth.
As shown below in greater extend the question of the Defendants religion itself would be an
invasion as to his rights. Further, there is no requirement to state any particular religion as the
matter in U.S. Supreme Court.
116 Commonwealth not to legislate in respect of religion

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The Commonwealth shall not make any law for establishing any
religion, or for imposing any religious observance, or for
prohibiting the free exercise of any religion, and no religious test
shall be required as a qualification for any office or public trust
under the Commonwealth.
WELSH v. UNITED STATES, 398 U.S. 333 (1970), 398 U.S. 333, WELSH v. UNITED
STATES, CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT, No. 76., Argued January 20, 1970, Decided June 15, 1970
1. The language of 6 (j) cannot be construed (as it was in United States v. Seeger, supra,
and as it is in the prevailing opinion) to exempt from military service all individuals who
in good faith oppose all war, it being clear from both the legislative history and textual
analysis of that provision that Congress used the words "by reason of religious training
and belief" to limit religion to its theistic sense and to confine it to formal, organized
worship or shared beliefs by a recognizable and cohesive group. Pp. 348-354.
2. The question of the constitutionality of 6 (j) cannot be avoided by a construction of that
provision that is contrary to its intended meaning. Pp. 354-356.
3. Section 6 (j) contravenes the Establishment Clause of the First Amendment by
exempting those whose conscientious objection claims are founded on a theistic belief
while not exempting those whose claims are based on a secular belief. To comport with
that clause an exemption must be "neutral" and include those whose belief emanates from
a purely moral, ethical, or philosophical source. Pp. 356-361.
4. In view of the broad discretion conferred by the Act's severability clause and the
longstanding policy of exempting religious conscientious objectors, the Court, rather than
nullifying the exemption entirely, should extend its coverage to those like petitioner who
have been unconstitutionally excluded from its coverage. Pp. 361-367.
And;
http://www.vaccineinfo.net/exemptions/relexemptlet.shtml
Hints for Religious Exemptions to Immunization

Please read the text below before you download, print, or use the sample religious
exemption letter and support materials provided in the following link:
Sample Religious Exemption Letter and Supporting Documentation
Refer to the statutes. The laws require that immunization must conflict with the tenets and
practices of a recognized or organized religion of which you are an adherent or member.
However, the law does not require you to name a religion at all. In fact, disclosing
your religion could cause your religious exemption to be challenged.
And
Some schools and daycares attempt to require you to give far more information than
required by law. You are not required by law to fill out any form letters from a school or
daycare. The law allows you to submit your own letter and the letter only needs to meet
the bare requirements of the law. Keep it simple; do not feel you need to describe your
religious beliefs here as that also is not required by law.
And

Page 70
Many times, when a school or day care questions your exemption, they are merely
unfamiliar with the law or trying to coerce you to go against your beliefs by
deliberately misrepresenting the law. They are betting on the fact that you don't know
your rights.
What appears to be clear is that a “religious objection” is not qualified to a specific religion and
neither can be as this would in fact offend Section 116 of the Constitution. Neither can it be
associated with any particular religion as this would also interfere with Section 116 of the
Constitution. Likewise, any person objecting under the “religious objection” Subsection 245(14)
of the Commonwealth Electoral Act 1918 neither can be required to be a religious person as this
would also offend Section 116 of the Constitution, as the equivalent in WELSH v. UNITED
STATES, 398 U.S. 333 (1970), 398 U.S. 333 made clear that it (the “religious objection” applies
as much to non religious persons as religious persons. Therefore, anyone objection for his/her
personal reasons to vote clearly is entitled to do so regardless of having any specific religion
mentioned.
Again, because I have been prevented from researching judgments of the High Court of Australia
and other judgments in general which are under control of AusLii.edu I am unable to research
that avenue as to locate simular judgments within Australia judgments.
Still, for purpose of this case, I should not be denied the benefits of my research, where I am
wrongly excluded from my constitutional rights to access Australian judgments.
When the Australian Electoral Commissioner provided me with a fact sheet No. 17 about certain
decisions, I checked out the relevant judgments and responded to the Australian Electoral
Commission that none of those judgment were relevant. Since then I discovered having been
excluded from access High Court of Australia and other judgments.
I may state that when I am able to obtain certain website addresses of High Court judgments then
at times I ask others to download it for me and to email it to me. They have no problem to access
the web-address I provide them with even so I cannot access the same, which I understand is
because my computer has been blocked to access the websites. As such, it is not a error in web-
address (as others can access it for me) but a deliberate blocking me out.
Obviously I cannot expect others to download thousands of cases for me, and neither should this
be the way for me to obtain access to judgments that are published on the Internet or available
through the internet normally.
It merely underlines that the deliberate blocking out of my computer to access judgments for my
research is to FRUSTRATE me in presenting my case before the Court in a manner I desire with
relevant Australian judgments.
I view, this in itself is a denial of a FAIR and PROPER trial!
In my view any judicial officer should take it very serious that this kind of tactic is employed to
prevent a party to litigation being able to present his case with relevant Australian authorities to
be referred to as much as possible.
SET OUT AS TO WHY THE DEFENDANT VIEWS AN ORDER TO PERMANENT

STAY OF PROCEEDINGS RELATING TO THE CHARGES IS APPROPRIATE
The Defendant albeit not being able to dictate how the Court has to consider matters and its
judgment, nevertheless provide the following submissions, besides those otherwise provided in
his ADDRESS TO THE COURT, as to why a permanent stay in regard of proceedings
Page 71
concerning the charges is in his view appropriate by listing some of his main issues, albeit not
stated in any order of importance, as follow;
There proceedings against the Defendant Mr. Gerrit Hendrik Schorel-Hlavka, formally known as
Mr Gerrit Hendrik Schorel, are before this Court as an appeal, for a hearing DE NOVO, against
the orders of the Magistrates Court of Victoria at Heidelberg of 17 November 2005, which
dismissed the then OBJECTION TO LEGAL JURISDICTION and convicted as per issued
Order the Defendant of failing to vote on 10 November 2001 and on 1 January 2005, the latter
orders appeared to have been incorrectly issued, as no federal election was held on 1 January
2005 but one was held in 2004. The Defendant claims that he notified the Court about the
incorrect date but was refused a copy of an Order which had the September 2004 election date.
The enrolment card which are on Court file, provided by the Commonwealth Director of Public
Prosecution (the Prosecutor) indeed confirm the name change having been on record by the
Australian Electoral Commission.
The Defendant has made known that his native language was Dutch, and that he never had any
formal education in the English language and neither so in legal studies but that he consider
himself to be a “self educated constitutionalist”. It is not perceived that the Defendant is seeking
to use an excuse of lack of possible language skill in regard of a defence against the charges
against him, rather it to be considered that his use of English grammar must be considered as
such.
The Defendant has placed before this Court that the he has the burden of CIVIL STANDARD
OF PROOF to raise excuses in regard of the charges and the Prosecutor has the burden of
CRIMINAL STANDARD OF PROOF that unless the Prosecutor can prove beyond reasonable
doubt that each and every excuse proffered by the Defendant cannot be sustained then he fails to
prove his case “beyond reasonable doubt” and as such no conviction can eventuate.
The Defendant submits, that STAR CAMBER COURT
The Defendant submits, that the charge of FAILING TO VOTE in regard of the (purported)
2004 federal election cannot have any legal justification, this as on 4 December 2002 upon the
submission of the Commonwealth Director of Public Prosecutions, in view of constitutional
challenges by the Defendant, the Magistrates Court of Victoria at Heidelberg adjourned matters
pending a judicial decision by the High Court of Australia to determine if the legislative
Page 72
provisions objected against were INTRA VIRES. Such decision has so far not been
forthcoming. Hence the legislative provisions objected against, including Section 245 CEA1918
remains ULTRA VIRES. Hence, since 4-12-2002 Section 245 could no longer be used to pursue
any fines/charges against anyone and neither so against the Defendant. As such the FAILING TO
VOTE charge in regard of the (purported) 2004 federal election is without legal justification and
VEXATIOUS.
Hansard 1-3-1898 Constitution Convention Debates Mr. GORDON.-

It ought to be considered a serious matter that the Australian Electoral Commission and/or the
Commonwealth Director of Public Prosecutions since 4-12-2002 had fined/convicted tens of
thousands of people upon legislative provisions they were aware of was ULTRA VIRES, by
having perverted the course of justice and abused also the legal processes of the Court.
The Defendant submits, that Section 353 of the Commonwealth Electoral Act 1918 in its
current form is unconstitutional, as it purports to give legal jurisdiction to the Court of Disputed
Returns, acting for either House of Parliament, somehow to adjudicate upon legal issues in
regard of judicial powers neither House ever possessed neither can invoke within the provisions
of the Constitution, seeking to override constitutional provisions and limitations, beyond its
power, this as it is used in a manner, as Marshall J of the Federal Court of Australia on 7
November 2001 proved to do, as to deny a person his constitutional rights to challenge the
validity of holding an election before a appropriate Court of law. This, as while the Parliament
had the original power to determine if one of its own is validity elected, it has no power in that
regard to determine the valid application of constitutional provisions resulting to an election
being held, as this remains to be a specific legal issues beyond the powers of the Parliament to
determine by itself and neither was intended by the Framers of the Constitution to be within the
powers of the Parliament to be controlled by them without proper legal procedures. Indeed,
where the High Court of Australia specifically has jurisdiction to hear and determine matters
arising under the Constitution, such as the proper application of Section 32 of the Constitution,
then the Defendants conduct, on direction of the Registrar of the High Court of Australia to file
his case in the Federal Court of Australia was appropriate course to follow. And the High Court
of Australia to NOT allow the appeal against the 7 November 2001 judgment was a gross
miscarriage of judgment, as extensively canvassed in the ADDRESS TO THE COURT that
was filed for the 16 and 17 November 2001 proceedings before the Magistrates Court of
Australia at Heidelberg, that is part of the court file before this Court.
Therefore, this Court exercising federal jurisdiction is not bound by Section 353 of the
Commonwealth Electoral Act 1918, if this section was to purport that only the Court of
Disputed Returns could determine matters in regard of elections, as this Court cannot be denied
the federal jurisdiction invested in it to determine matters “according to law”, including the
validity of the proclamation and writs that causes an election to be held”, as set out also further in
this ADDRESS TO THE COURT.
Electoral matters governed by legislation only can be appropriately dealt with by a Federal Court
or a Court exercising federal jurisdiction operating as a “Court of law”.
The Court of Disputed Returns clearly does not operate specifically as a “Court of law” as it can
dismiss a petition, regardless if the petitioner is deemed to be right in the petition if the Court of
disputed Returns take the view that a re-election would not make much difference to the end
result of the election. As such, it is not a “Court of law” where not the end result but rather the
legal doctrine is superior.

Page 73
The ruling by the Federal Court of Australia on 7 November 2001 that it had no legal jurisdiction
did not and could not have disposed of any constitutional challenge to the validity of the writs.
As the framers of the Constitution made clear only a ruling by the High Court of Australia
declaring the writs to be INTRA VIRES could have validated the writs, as like any other piece
of legislation contested to its constitutional validity. Therefore, if the writs were not
constitutionally validly issued, being in breach of Section 9 and/or 32 of the Constitution then
this remains ULTRA VIRES and the Country Court of Australia could never invoke any legal
jurisdiction to purportedly deal with criminal charges allegedly arising out of a failure to vote of
purported elections which constitutionally did never take place.
It is essential to consider Section 32 of the Constitution, also that the writs must be issued within
10 days “from” the expiry of the House of Representative. This means writs issued prior to the
Proclamation having been published are NULL AND VOID, and so without legal force and
therefore Section 245 of the CEA1918 for this also cannot be invoked.
Likewise, Section 9 of the Constitution requires writs to be issued according to relevant State
laws, and as this never eventuated then the wits for the Senate were also constitutionally floored.
Constitutionally, each and every federal election held prior to 2001 likewise befall the same
constitutional argument, but there are for purpose of the charges not relevant, albeit it does not
alter the fact that previous elections conducted in breach of constitutional provisions are without
legal force, and while the Australian Electoral Commissioner’s lawyers may argue they have
always conducted federal elections in this manner, this does not for one of iota make is
constitutionally valid rather may indicate how terrible and disgraceful and indeed
unconstitutionally elections are conducted. It then is ironic that the Australian Electoral
Commission seeking to have the Court by way of conviction, etc, punish the Defendant for
alleged breaches of law where no such breaches exist, while his own conduct of breaches of
constitutional and other relevant legal provisions are being ignored. The Parliament never had
any powers to make legal determinations, and so neither either House of the Parliament, and for
this neither could bestow by way of Section 353 authority upon the Court of Disputed Returns
this kind of power. The Court of Disputed Returns jurisdiction therefore for all purposes must be
limited to decide non-legal issues as otherwise it would act unconstitutional. It would equate that
the Court of Disputed Returns on behalf of the Parliament as adjudicating on legal issues,
including State legal provisions such as the application of the Senate election act of a State. This
is a sheer abnormality, where the States jurisdiction has been hijacked unconstitutionally.
Where it relates to State laws, such as the Senator Election Act of any State then it is enforceable
by a State Court without needing to invoke federal jurisdiction. The Framers of the Constitution
never anticipated that somehow the Commonwealth of Australia was to take over State judicial
enforcement of State legislative provisions. While the “modus operandi” of Senate elections
were provided to the Commonwealth of Australia, State times and places and so the appointment
of a Senator to the Senate remains to be with the State and the State governor.
The State writs are enforceable under State laws, unless they are defective. Any charge of
“failing to vote” is nonsensical if it does not specify for which election this is. Two elections
being held on the one day, one being the Senate and one for the House of Representatives. One
writ issued by the Governor of the State and one being issued by the Governor-General for the
House of Representatives, albeit the Governor-General also issue the writs for the Territory for
Senate elections.
The Court of Disputed Returns therefore cannot operate as a Federal Court exercising State
judicial powers in regard of Senate elections. As there is no such constitutional powers for a
State to invest State jurisdiction in a Federal Court (consider also 1999 HCA27 Wakim case.).
As the Framers of the Constitution made clear, the Commonwealth of Australia was to rely upon
the State electoral rolls as to who was eligible to vote within Section 41 of the Constitution in
federal elections. The Framers of the Constitution also made clear that there was no
Page 74
“registration” (enrolment) required for the Commonwealth of Australia as the State electoral rolls
would do it.
While the AEC may conduct elections for the states, in the end an alleged “failing to vote” is a
State matter governing a Senate election, whereas in regard of a House of Representative election
it is a federal issue.
Neither the Senate or the House of Representative could possibly themselves have dealt with
enforcing State and of Federal laws against any person, as this would bridge the separation of
powers of legislative powers and judicial powers. Hence, the Federal Parliament (either Houses)
never had any constitutional powers to adjudicate on electoral matters, and the true intend was
that that a Court of Disputed Returns would be a Court dealing with disputed elections as any
other Court of Law.
While the high court of Australia had legal jurisdiction dealing with all matters arising out of the
Constitution, the Federal Court of Australia cannot be deemed to have this equivalent power and
as such cannot be deemed wither to have any judicial powers to deal with Senate elections and
any breaches of them. Yet, Section 383 of the CEA1918 purports it has.
In view that the Court of Disputed Returns is to deal with disputed elections and not dealing with
if a member should be ousted from the Parliament because of misconduct to the rules of the
House or other improper conduct, then the Court of disputed Returns must be deemed to be to
operate as a “Court of law” as any other Court normally does to deal with the rights of the
parties.
It must be considered that if the Parliament were to reverse the application of Section 353 of the
CEA1918 and take back its powers to decide if a Member in its midst should or should not
remain in the House upon judicial grounds, then surely no judicial officer could accept that then
the Parliament could make judicial determinations in regard of Section 75(v) of the Constitution
and other petitions based upon proper application of the Constitution, as to allow for this would
in effect mean that the “judicial powers” invested in the High Court of Australia would be
transferred, in part, to the Parliament.
The separation of judicial powers and legislative powers cannot be eroded by an incorrect
application of Section 353 and therefore this Court must hold that as much as the Parliament
never was provided with any constitutional powers to adjudicate constitutional issues such as the
validity of the writs, then regardless if Marshall J on 7 November 2001 decided otherwise, this
Court is not bound to accept that ruling made in error of law but must observe the true and proper
application of constitutional provisions, and therefore accept that the constitutional objections
pursued by the Defendant even prior to any purported election being held remains on foot until
the High Court of Australia declare the writs to be INTRA VIRES, and until, if at all, it does so
the writs remain ULTRA VIRES, therefore section 245 cannot be invoked if there were no valid
writs in the first place.
The Defendant submits, that the manner elections were/are conducted forced an elector to
participate with bribery conduct and other illegal conduct which are offences within the
Commonwealth Electoral Act 1918, as set out extensively in this ADDRESS TO THE
COURT.
The Defendant submits, that there is no such thing as “compulsory voting”, but rather
“pretended compulsory voting”, this as the High Court of Australia itself made clear (as set out
in this ADDRESS TO THE COURT) that voting is by secret ballot, and even if a person having
received the ballot papers then immediately places the blank forms in the ballot box then still no
one can report this as this would offend the secrecy provisions. As such, the issue is not “voting”
but rather “pretended voting”.

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What therefore is to be considered is, has a person voted or is deemed to have voted because the
Australian Electoral Commission decides this to be so, irrespective that the person may never
have done so but the electors name was marked of by error by a staff member?
Is the elector deemed to have voted when his/her name is marked of from the electoral roll, when
receiving the ballot paper, irrespective that this person then may rip the ballot paper up and give
it back to the issuing officer?
Is the elector deemed to have voted because he/she was issued with the ballot paper even so by
error not have his/her name marked off?
Is the elector deemed to have voted, even so the electors name was not marked of by as having
voted but because the Australian Electoral Commission accepts the word of the elector having
done so, either personally, via mail or otherwise?
Is the elector deemed to have voted, even so the staff member refused to issue a ballot paper to
the elector because the staff member may have incorrectly decided against the issuing of a ballot
paper, and for this the attendance of the elector to the polling station is deemed to constitute
having voted, regardless it did not actually happen?
The Defendant submits, that there is within the legislation (The Commonwealth Electoral Act
1918) no clear definition that so to say, sets in concrete as to what constitute voting. People who
claim to have send in ballot paper, but the AEC claims never have received it nevertheless then
can be deemed to have voted provided the AEC accept this explanation, albeit others who may
make the same claim may be rejected and then be fined for “FAILING TO VOTE”, as such it is
not about the actual physical exercise of voting by filling in a ballot paper that constitute
“voting”, as it remains to be in a regard of a SECRET BALLOT, but rather if the Australian
Electoral Commissioner has made up his mind to conclude an elector did or did not vote.
People who are honest and claiming to have performed postal voting could still be fined for
“FAILING TO VOTE” and others who actually didn’t bother to turn up and vote, neither did
postal voting, would not be challenged for not doing so as their name might have been wrongly
marked of as having voted.
The Defendant submits, that the whole issue about “averment” is that the Australian Electoral
Commission, so the Prosecutor (Commonwealth Director of Public Prosecutions), would not
have one of iota evidence to prove a Defendant has not voted and hence use the averment rule to
avoid being challenged to prove their case. GUILTY UNTIL PROVEN INNOCENT, being
the outlawed STAR CHAMBER COURT system. And it is upon this flimsy basis that Courts
are causing “CRIMINAL” convictions upon Defendants, even so they may in fact have voted!
Therefore it is not the “Rule of Law” being enforced but rather the conclusion of the Australian
Electoral Commissioner, yet his own conduct failing to adhere to constitutional and other
relevant legal issues seems to be ignored!
The Defendant has also raised the issue before the Magistrates Court of Victoria and now before
this Court the issue of religious objection, in fact for years also to the Commonwealth Electoral
Commission, albeit it seems to be ongoing ignored, provided for in ss245(14) of the
Commonwealth Electoral Act 1918, and as such in any event the Court cannot invoke legal
jurisdiction on this basis also.
Section 245 Commonwealth Electoral Act 1918.

(14) Without limiting the circumstances that may constitute a valid and sufficient reason for not
voting, the fact that an elector believes it to be part of his or her religious duty to abstain
from voting constitutes a valid and sufficient reason for the failure of the elector to vote.
(15) An elector is guilty of an offence if the elector fails to vote at an election.
Penalty: $50.
Page 76
(15A) Strict liability applies to an offence against subsection (15).
Note: For strict liability, see section 6.1 of the Criminal Code.
(15B) Subsection (15) does not apply if the elector has a valid and sufficient reason for the failure.
Note: A defendant bears an evidential burden in relation to the matter in subsection (15B) (see subsection
13.3(3) of the Criminal Code).
(15C) An elector who makes a statement in response to a penalty notice or to a notice under
subsection (9) that is, to his or her knowledge, false or misleading in a material particular is
guilty of an offence.
Penalty: $50.
(16) Proceedings for an offence against this section may be instituted only by the Electoral
Commissioner or an officer authorised, in writing, for the purpose by the Electoral
Commissioner.
While the notation states “Note: A defendant bears an evidential burden in relation to the
matter in subsection (15B) (see subsection 13.3(3) of the Criminal Code).”, this cannot be
applied in the State Court, even which exercise federal jurisdiction, as this would interfere with
the judicial processes of a State Court, regardless if it is exercising federal jurisdiction.
The Defendant submits, that “Religious objection” must be deemed to include any secular
objection as Section 245(14) requires to be “neutral” as otherwise it is unconstitutional as it
would offend Section 116 of the Constitution.
The Defendant submits, that albeit the Defendant is not required to give any evidence as to the
precise grounds of religious objection nevertheless some details have been set out which indicate
that the Defendant for many years had such religious objections. No duty was upon the
Defendant to specifically refer to this to the Australian Electoral Commission when it questioned
about their alleged failure to vote, as all along the Defendant contested the validity of the
Australian Electoral Commission to do so where the Defendant all along had his constitutional
based objections on foot against the elections being held. Considering other matters set out
extensively the issue of if the Defendant voted and if not why not is not relevant unless and until
first all constitutional based objections have been appropriately dealt with. If for example the
Courts were to declare that indeed section 245 of the CEA1918 is beyond constitutional powers
then it was so ab initio and it then is clearly for this also not relevant if the Defendant did or
didn’t vote, and if he did not vote why not as there is no legislation applicable for this. Indeed,
the Defendant in his correspondence to the Australian Electoral Commission made known that
Fact sheet 17, that was provided by the Australian Electoral Commission about various court
decisions (authorities) regarding “VOTING” that none of them were deemed by the Defendant
to be relevant as they did not reflect the intentions of the Framers of the Constitution.
IN RE WOOD (1988) 167 CLR 145 F.C. 88/018
END QUOTE
"The election is either valid or invalid. If
invalid, the reason of the invalidity is not
material so far as regards its consequences. We
think it follows that, upon the avoidance of the
election itself by the Court of Disputed Returns,
the case is to be treated for all purposes, so
far as regards the mode of filling the vacancy,
as if the first election had never been
completed, unless there is something in the

Page 77
HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/c167/"
Constitution to lead to a contrary conclusion."
END QUOTE
The following details were shown on the FREEDOM OF INFORMATION released computer
records of the Commonwealth of Australia as to copies of the Gazette having been transferred,
after printing.
11/03/02 GO BOI 53/2 GAZETTES Wr-Off 20 0.20 MGIRVAN

11/10/01 GO SGAZ421 . Subs Issue Adj Dist -6 -0.06 HEMSAN
9/10/01 GO CAS0153391 Trf to CA Transfr -2 -0.02 CA ZZ BMO5IAI
9/10/01 GO ICN0910ADL ICN to AD Transfr -1 -0.01 AD ZZ DCRANE
9/10/01 GO ICN1076CAN ICN to CA Transfr -3 -0.03 CA ZZ DCRANE
9/10/01 GO ICN0907MEL ICN to ME Transfr -1 -0.01 ME ZZ DCRANE
9/10/01 GO ICN0886PER ICN to PE Transfr -1 -0.01 PE ZZ DCRANE
9/10/01 GO ICN0881TOV ICN to TH Transfr -1 -0.01 TN ZZ DCRANE
8/10/01 GO FGS0153363 CANPRINT PO-Fins 35 0.35 GHANNA
8/10/01 GO FGS0153363 CANPRINT Receipt 35 0.35 GHANNA
While 35 copies of the Special Gazette S421 was requested to be printed and the computer
records show they were on 8 October 2001, it also shows that not until 9 October 2001 first 2
copies and later a further 3 copies had been transferred to Canberra (CA) As such the
Proclamation was not published until at the earliest 9 October 2001, and therefore in regard of all
writs governing the House of Representatives and the Senate sets for the territories there were no
vacancies when the writs were issued on 8 October 2001.
Despite a request by the Defendant in his 19 September 2002 correspondence, for example, to
the Australian Electoral Commission as to provide certain details to prove the validity of the
elections basically little had been forthcoming and no evidence at all as to the Proclamation in
fact having been published on 8 October 2001! To the contrary, evidence provided proves that
not until 9 October 2001 the proclamation was published in Canberra and on later dates in States
and Territories. As such, where the writs were for this also defective then none of the members
of the House of Representatives were validly elected and neither the Senators for Territories.
IN RE WOOD (1988) 167 CLR 145 F.C. 88/018

QUOTE
The return does not meet the exigency of the writ (Drinkwater v. Deakin,
at p 638) because Senator Wood was incapable of filling the 12th place.
That is not to say that, putting to one side "a mere abuse of the right
of nomination or an obvious unreality" (Harford v. Linskey (1899) 1 QB
852, at p 862 and cf. Pritchard v. Mayor, &c. of Bangor (1888) 13 App
Cas
241), the Electoral Officer who makes a return has authority himself to
determine the qualifications of a candidate (who declares and maintains
that he is duly qualified: HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/c167/s170.html"
s.170 (a)(ii) of HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/c167/" the Act ) or
to refuse to return the name of an otherwise successful candidate whose
qualifications are in issue: see HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/c167/s172.html"
s.172 of HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/c167/" the Act and
Evans v. Thomas (1962) 2 QB 350. But the performance by the Electoral
Page 78
Officer of his ministerial functions in these respects does not determine
the validity of the return or the efficacy of the election of an
unqualified person to a vacant place in the Senate.
END QUOTE
Clearly, the declaration by the Commonwealth Electoral Commission itself did not purportedly
validate the election and neither any candidate declared elected where there was no valid
election.
Where then Mr John Howard was not elected in 2001, so neither others, then he neither could
have been Prime minister for any longer then 3 Months, as Section 64 limits the appointment of a
non elected person to no longer then a period of three months.
Hence, Mr John Howard was neither then Prime Minister to advise the Governor-General for a
general election in 2004! Indeed, neither was Mr John Howard in any legal position to be
involved in the appointment of the Governor-General Michael Jeffrey and as such that also the
appointment also is unconstitutional and invalid (without legal force- ULTRA VIRES).
THE DEFENDANT SUBMITS, THAT WITHOUT A GOVERNMENT OR A CARE

TAKING GOVERNMENT IN OFFICE THE COUNTRY GRINDS TO A HOLD. Where
there was no valid government since November 2001 then neither was there any authority for the
Australian Electoral Commission to pursue the Defendant as to alleged breaches of law, and the
Commonwealth of Public Prosecutions (Prosecutor) neither for this could have legal authority to
pursue the Defendant regarding the alleged FAILING TO VOTE in the purported 2001 Federal
election and the purported 2004 Federal election.
As the Senate elections also were ULTRA VIRES, because the writs had not been issued
according to relevant legislative provisions, then when half of the senators retired in 2002 there
were no duly elected replacements for them. Further, when the half of the Senate that retained
their seat in 2002 retired in 2005 then not a single Senator was left in the Senate as none had
been duly elected. All Bills passed since 2001 are for this also NULL AND VOID and without
legal force.
The Defendant submits, that the Prosecutor would have done better to first have attended
to this correspondence and have had the courtesy to set out to the defendant why the
Prosecutor didn’t agree with the set out by the Defendant as to the Authorities not being
relevant. Indeed, had the Prosecutor pursued that way then the matter may have been
resolved by written communication rather then by litigation.
The Defendant submits, that to reflect what the true position was of the Commonwealth of
Australia he did publish;

Dictatorship & deaths by stealth- Preliminary book edition on CD
ISBN 0-9580569-3-5
The Defendant submits, that no appointment of any judge to the High Court of Australia since
2001 is therefore valid as there was no legitimately elected government. Neither are any other
appointment made valid in law.
The Defendant submits, that the Australian Electoral Commission, and so the lawyers involved,
should have taken care, so to say, not to cross the Defendant path but rather should have taken
every opportunity to appropriately communicate with the Defendant from onset and to pursue the
High Court of Australia to immediately address the constitutional based objections and other
Page 79
objections so that in the event the High Court of Australia was to have made a ruling adverse to
the conduct of the elections on foot then matters could still have been rectified before the then
Government (in care taking mode) finished. Indeed, it is for this the Framers of the Constitution
made clear that a new election should be held before the Parliament sits, where there is a dispute
about electoral matters.
The Defendant submits, that the Defendant in his affidavit before the Federal Court of Australia
on 7 November 2001 submitted an alternative election date, in accordance to constitutional and
other relevant legislative provisions for both the Senate and the House of Representatives to be
held on 15 December 2001. However, the Australian Electoral Commission opposed the Courts
legal jurisdiction and as such this, so to say, never came of the ground. It is the result of what the
Defendant perceives as a litigate obsessed Australian Electoral Commission and so the lawyers
involved but for the wrong litigation reasons, not to seek to resolve the real issues but to thwart
matters to be rectified.
The Defendant submits, that the Defendant all along intended to use the election issues as
material to write books, and for this sought to go through great lengths to give all kind of effort
to notify the Australian Electoral Commission and the lawyers involved about matters, this so
that afterwards it can be shown the defendant attempted to resolve matters but the Australian
Electoral Commission and the lawyers involved were having, so to say, TUNNEL VISION that
they simply refused to appropriately consider matters.
The Defendant expected all along that no matter what the Defendant would attempt to do to try
to have matters appropriately attended to the Australian Electoral Commission, the Government,
the lawyers involved, the Commonwealth Ombudsman and the Courts would simply have, so to
say, their TUNNEL VISION and refuse to act appropriately.
The Defendant submits, that it is like the illusive WEAPONS OF MASS DESTRUCTION,
that people are polarised and simply do not and perhaps cannot accept the concept that the
Defendant might be right. LEGAL FICTIONS and ILLUSIONS rather then reality and facts
are driving them.
Judges found more concerned to try to use, regardless how inappropriate, indeed illegal, to
railroad my cases then to adhere to the “oath of office” to provide a FAIR and PROPER trial
and NATURAL JUSTICE. All along providing the Defendant more material to publish in his
books, and to expose how absurd this all is where commonsense does not prevail.
The Defendant submits, that regardless of what this Court may decide, it cannot rectify that the
elections were and remain ULTRA VIRES and without legal force. This Court however can
declare the facts as they are and accept that ultimately it are the Australian Electoral
Commissioner, the Federal Government, the lawyers involved and the Courts and others
involved who combined must accept the responsibility for what went wrong.
The Defendant submits, that without a valid elected Federal Government the commonwealth of
Australia came to a hold, and then neither has this Court any federal jurisdiction (cannot invoke
legal jurisdiction) as without a duly and properly elected parliament there is no law enforcement
feasible. One cannot have that the Commonwealth of Australia can continue without a validly
elected Parliament, this as the Framers of the Constitution made clear there must always be a
Parliament, either sitting or summonsed by the Governor-General. Because of the invalidity of
the Proclamation and the Writs then there is no parliament summonsed.
The Defendant submits, that he did notify the Governor-General and Her Majesty Queen
Elizabeth II about the defective writs, etc, but never received any response. Still, that is a choice
that was made by them.
Page 80
The Defendant submits, that the Government of the day can only act within the legislative
provisions provided for by the Parliament, and where there is no Parliament then there can be no
Government and neither any law enforcement such as the Australian Federal Police. And again,
no lawyers acting purportedly for the Commonwealth of Australia have any legal standing to do
so.
The Defendant submits, that the Prosecutor acting under Federal authority himself was bound
to act within the scope of relevant federal legislative provisions, for so far they are still
enforceable and/or applicable, regardless if this may not apply upon the State Court legal
procedures, and ought to have notified each and every State and Territory Governments about
constitutional objections raised by the Defendant, such as the issue of the validity of the
Australian Citizenship Act 1948, this, as by the objection, as like as landholder objecting a
police officer to enter his property without lawful authority that is effective from the moment the
objection is made by the landholder, the objection was effective, and the validity of the parts of
the Australian Citizenship Act 1948 objected against became immediately ULTRA VIRES,
then this affecting also each and every State and Territorian Government as to the validity of
their legislative and/or constitutional provisions based upon the Australian Citizenship Act 1948
provisions had therefore also an direct interest in these matters.
The Defendant submits, that the magistrate on 16 and 17 November 2005 could not invoke
federal jurisdiction to deal with these and other matters because of the 4 December 2002
magistrate orders on foot adjourning the matter to the High Court of Australia. Neither could it
be accepted that a magistrate possibly could make a ruling about constitutional matters, even if
exercising federal jurisdiction, refusing whatsoever to place it on record in writing by way of a
comprehensive reason of judgment, why decisions were made. In particularly where State and
Federal Governments also are standing to collapse in view of the Australian Citizenship Act
1948 being ULTRA VIRES since the Defendant objected against the validity of the Australian
Citizenship Act 1948 since 2001 that it is beyond constitutional powers to define/declare
citizenship, then it could not be accepted that the magistrate possibly could have acted reasonable
in the circumstances.
The Defendant submits, that this Court neither could adjudicate upon these constitutional
issues, willy nilly, merely because the Prosecutor might fancy this Court to do so, as the 4
December 2002 magistrate decision remains a bar to this. Even if this decision was somehow to
be vacated, the Court, even if it were to declare it had the federal jurisdiction to adjudicate upon
these and other constitutional issues it would nevertheless have to produce an elaborate reason of
judgment in regard of the proclamations, writ(s), legislation already by the objections being
ULTRA VIRES, setting out why on constitutional grounds such proclamation, writs(s)
legislation is INTRA VIRES or ULTRA VIRES considering the constitutional powers and
limitations. It must be deemed that while this court legal procedures cannot be interfered with by
Commonwealth legislative provisions nevertheless it must be considered that the authority of the
Prosecutor to act in these matters may not be sufficient for the Prosecutor to act in such blatant
disregard to exclude State and Territorian Governments from being notified of the vital and
critical constitutional issues.
The Defendant submits, that this Court may reject the Prosecutor having unilateral authority to
pursue these proceedings in the manner it has done so far where Federal legislative provisions
provide that the State and Federal Attorney’s are to be notified in regard of constitutional matters
before the Court. This is an obligation to the prosecutor seeking to invoke the jurisdiction of this
Court, and not an obligation upon the Defendant and neither upon this Court. The issue therefore
is one of questionable authority of the Prosecutor to act in these proceedings as is currently being
done.
Page 81
The Defendant submits, that would this Court order a permanent stay of proceedings in regard
of the charges then this would in fact relief the Prosecutor to pursue the Constitutional issues as
then it would be for the Commonwealth of Australia (including the Australian Electoral
Commissioner) to pursue matters that are now deemed to be ULTRA VIRES as to pursue to
obtain a declaration that they are INTRA VIRES, if that is what they would seek to achieve.
The Defendant submits, that in view that the High Court of Australia itself is on record to
indicate that “citizenship” is not a known constitutional power, as further outlined below in this
ADDRESS TO THE COURT, then as Latham J stated; “If it is beyond power it is invalid
ab initio.”.
Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann;

Spi [1999] HCA 27 (17 June 1999)
For constitutional purposes, they are a nullity. No doctrine of res judicata or issue
estoppel can prevail against the Constitution. Mr Gould is entitled to disregard the orders
made in Gould v Brown. No doubt, as Latham CJ said of invalid legislation, "he will feel
safer if he has a decision of a court in his favour". That is because those relying on the
earlier decision may seek to enforce it against Mr Gould.
Uniform Tax \case, 1942 (65CLR 373 at 408)

"Common expressions such as: 'The Courts have declared a statute invalid'," says Chief
Justice Latham, "sometimes lead to misunderstanding. A pretended law made in excess
of power is not and never has been a law at all. Anybody in the country is entitled to
disregard it. Naturally, he will feel safer if he has a decision of a court in his favor, but
such a decision is not an element, which produces invalidity in any law. The law is not
valid until a court pronounces against it - and thereafter invalid. If it is beyond power it
is invalid ab initio."
The Defendant submits, that any judicial officer who was natural born and/or naturalized was
and remained to be a British national with an alliance to the British Crown. And where such
judicial officer made an oath of alliance to the LEGAL FICTION “Queen of Australia” then
this judicial officer has an purported oath of alliance to two different monarchs and cannot be
deemed to be a acceptable judicial officer for purpose to make judicial determinations.
The Defendant submits, that as also further set out below, where any natural born and/or
naturalized person has made an oath of alliance to the LEGAL FICTION “Queen of Australia”,
then this would be an act of sedition.
The Defendant submits, that any natural born or naturalized person who made an oath of
alliance to the LEGAL FICTION “Queen of Australia” is by Section 44 of the Constitution
disqualified from being a Member of Parliament.
The Defendant submits, that because subsection 51(xix) of the Constitution provided for
“naturalization” of “aliens” to be granted “British nationality” then any notion by the ULTRA
VIRES Australian Citizenship Act 1948 legislation that they were granted “Australian
citizenship” is NULL AND VOID in that the were and remain to be actually made “British
nationals”.
The Defendant submits, that because the Victorian constitution relied upon the ULTRA
VIRES Australian Citizenship Act 1948 for certain rights and so also further legislation demand
certain government functions that the person must be an “Australian citizen” then all such
Page 82
persons, being it police, judicial officers, Members of State parliament, etc, all failing to have
“Australian citizenship” as an ULTRA VIRES legislation cannot be enforced, by this all are
without legal right in their positions.
The Defendant submits, that by the ruling in Sue v Hill, that British nationals own alliance to a
foreign Monarch cannot hold a seat in Parliament, then for this also all natural born and
naturalized persons who are in fact British nationals by this ruling are disqualified from being a
Member of Parliament.
The Defendant submits, that therefore the legal power of any judicial officer involved in this
case to adjudicate may be ULTRA VIRES, if this judicial officer made an oath of alliance to the
LEGAL FICTION “Queen of Australia”, and it would result that this Court then constitutes to
be a STAR CHAMBER COURT, referred to in the Act Interpretation Act 1980 (Vic).
The Defendant submits, that as the Framers of the Constitution stated, legislative powers as to
“citizenship” remains with the States and “Australian citizenship” is AUTOMATICALLY
obtained when a person obtains “State citizenship”.
The Defendant submits, that legislation enacted by any parliament, where persons failed to
have Australian citizenship as derived from having State citizenship then any such legislation is
and remains ULTRA VIRES, and any legal enforcement by the Court of such legislation that is
ULTRA VIRES are NULL AND VOID and so also without legal force.
The Defendant submits, that for many years he has promoted the establishment of an OFFICE
OF THE GUARDIAN, a constitutional council, that advised the government, the people, the
Parliament and the Courts as to constitutional powers and limitations. If such an OFFICE OF
THE GUARDIAN had been established years ago, then the current proceedings may not have
eventuated and many issues may have been resolved.
The Defendant submits, that any lawyer acting for the Commonwealth who made an oath of
alliance to the LEGAL FICTION “Queen of Australia” is not a person who can lawfully
conduct litigation in the Courts and for this cannot be accepted to proceed in this case also. This
also as every lawyer is required to be an “Australian citizen” which can only be derived from
being a State citizen, and this the states have not provided for.
The Defendant submits, that this court has no jurisdiction to “Dismiss the charges” because
this would require to invoke legal jurisdiction and this is being contested to exist by the
Defendant for numerous reasons.
The Defendant submits, that the Prosecutor neither has the jurisdiction to “Withdraw the
charges”, as they are already subject to directions of previous magistrates, and as such the power
to withdraw without the consent of the Defendant does not exist, as the Defendant is entitled to
the benefit of the 4 December 2002 and 4-8-2005 orders on foot.
The Court cannot set aside the orders of 4-12-2002 and/or 4-8-2005 as this would require the
Court to invoke legal jurisdiction which the defendant contest this Court to have.
The Court cannot “Dismiss the charges upon being withdrawn”, as this would require the
Court to invoke legal jurisdiction which it cannot do so.
The Defendant submits, that from the moment the Defendant made known his objection, being
it by way of oral objection, written objection to the Australian Electoral Commission, to Mr.
Page 83
John Howard or any other government official, in legal proceedings and/or otherwise then such
constitutional based objections for all purposes have caused all items subject to such
constitutional based objection to be ULTRA VIRES and without legal force, and purported
aborting of the charges cannot affect the constitutional based objections and their application in
any way whatsoever.
The Defendant submits, that a “Stay of proceedings regarding the charges” would not in any
way seek to interfere with the 4-12-2002 and/or 4-12-2005 orders outstanding and neither
interfere with the constitutional application regarding constitutional based objections but merely
does put a hold on the Prosecutor to continue with litigation regarding the charges while other
matters are and remain unresolved.
The Defendant submits, that basically the Court by ordering a “Stay of proceedings regarding
the charges” in effect is saying to the Prosecutor; “Look, you took the matter to Court and this
man relies upon his constitutional rights, and as the Court on 4-12-2002 made an order which
you cannot circumvent, you have the obligation to prove jurisdiction, and as such you must
resolve this first and have all relevant constitutional matters resolved before the High Court of
Australia, before this Court can invoke legal jurisdiction to deal with the Charges.”
The Defendant submits, that a “Stay of proceedings regarding the charges” would in effect
not be detrimental to either party as it merely would insist that the Prosecutor follows the
directions of the Court itself did submit was to be followed, and that was for the High Court of
Australia to determine constitutional issues first.
The Defendant submits, that for example, if the High Court of Australia were to declare the
Australian Citizenship Act 1948 to be ULTRA VIRES for so far it were to define/declare
“citizenship” then not only would this vindicate the Defendant position and all and any purported
“Australian citizenship” granted since enacting this Act are to be deemed to be “British nationals,
as intended by the Framers of the Constitution, but it also would mean that for that purpose not a
single elector could be obligated to vote, in that if the definition/declaration of “Australian
citizenship” is unconstitutional then any legislation based upon it also is and remain without legal
force.
The Defendant submits, that if the High Court of Australia were to determine that in view of the
intentions of the Framers of the Constitution, as expressed on 15 April 1897, compulsory
registration (enrolment) and voting is unconstitutional then these charges for that also are without
legal justification.
The Defendant submits, that if the High Court of Australia were to hand down a decision that it
would be a denial of NATURAL JUSTICE for a candidate in an election to be forced to vote
that may result in his opponent to be elected then for this also the charges would be without legal
force.
The Defendant submits, that if the High Court of Australia were to hand down a judgment that
the Australian Electoral Commission had a DUTY OF CARE towards the Defendant, and
cannot benefit to obtain a conviction it itself caused by FRUSTRATION by deceiving and
otherwise misleading the Defendant as to his rights, then for that also the charges would be
without legal justification.
The Defendant submits, that the Defendant having made his constitutional based objections
then is entitled to rely upon that the relevant legislation, proclamation and/or writ(s) are deemed
for all purposes ULTRA VIRES and without legal force, not just against the Defendant but
Page 84
against any other person, unless and until the Court declares the legislation, proclamation and/or
writ(s) to be INTRA VIRES and then during the period of the constitutional based objection
having not been resolved for all purposes the legislation, proclamation and/or writ(s) were
without legal force. Hence, even if, not that the Defendant seeks to imply this, the High Court of
Australia were to declare anything to be INTRA VIRES it still could not result of any charges to
proceed, for they were made in regard of legislation, proclamation and/or writs that were
ULTRA VIRES at the time.
The Defendant submits, that no judge can adjudicate in his own cause, and as such where the
issue of “citizenship” and “oath of alliance” made to the LEGAL FICTION “Queen of
Australia” directly relates to each and every judicial officer within the Commonwealth of
Australia, including every judge of the High Court of Australia, then I view this constitutional
issues can only be adjudicated upon by the Privi Council. This as judges of the High Court of
Australia facing having committed sedition to swear an oath of alliance to the LEGAL
FICTION “Queen of Australia” would have a personal interest and as such are bias of perceived
to be bias in any judicial decision they were having to make in regard of the issue of
“citizenship” and the true meaning of Subsection 51(xix) of the Constitution.
The Defendant submits, that the Section 388 “averment” rule to be used in any State Court
would constitute to be an outlawed STAR CHAMBER COURT conduct, outlawed by the so
called 1640 Star Chamber Act and so enforced by the Act Interpretation Act 1980 (Vic), as it
would place the Defendant in a position to be deemed GUILTY as charged, and as such for this
also the conviction by the magistrate on 17 November 2005 is and remain without legal force,
where the magistrate relied upon the averment rule, this despite the defendant having objected to
it being applied.
The Defendant submits, that the right of the Defendant, so any elector, to vote or not to vote for
a certain candidate is embedded in the Constitution, and cannot be enforced by any legislation in
the Commonwealth Electoral Act 1918;
Mr. SYMON: You limit the choice of the member; but you do not limit the choice of
the electors. The elected has to, say whether he will prefer the federal parliament with
its wider scope of interest and duty to the local parliament with its narrower scope.
And
Mr. SYMON:
But what I want hon. members to consider is whether it is not well for us not to say, "Let
the electors reject the men who are already in the local parliament, and who become
candidates for the federal parliament."
Therefore the right to vote or not to vote for a candidate remains with the elector, and any
obligation to vote using the preference voting system would force an elector to vote for a
candidate who he may not desire to vote for and who may not be eligible to take a seat in the
Parliament.
The Defendant understands that Kirby J of the High Court of Australia himself referred to these
debates in regard of the Sykes v Cleary matter and as such it one part of this debate was deemed
relevant then the same should apply to the rest of that debate. As a matter of fact while the High
Court of Australia had ruled in the Sykes v Clearly matter that holding state office of profit
disqualify a person to be a candidate in a federal election the truth is shown below of the same
day of Debates Kirby J referred to;

Page 85
Mr. SYMON: They would be eligible. This provision would not prevent their [start
page 999] being elected; it merely says that if elected they shall not hold the two
offices!
And
The Hon. S. FRASER: They will be capable of being elected whilst holding the other
position.
Mr. SYMON: Certainly!
The Hon. S. FRASER: I agree with the right hon. member, Mr. Kingston. I do not
think that the commonwealth interests and the state interests will clash. I see no
reason why they should, and the federal parliament can deal with this matter if it is found
to be a drawback.
And also consider;
Mr. BARTON: Yes, it is; because it might otherwise be read to apply that way. The hon.
member will well remember the case of Sir Bryan O'Loghlen, whose election for County
Clare was upset on the ground that, while he was a Minister of the Crown in Victoria, he
was holding an office of profit under the Crown. That case shows the necessity of these
exceptions. Then those are exempted who receive a new commission in the Queen's navy
or army, or an increase of pay on a new commission. That covers the case of those who
receive a fresh commission, who happen to have been a member of the Queen's army
drawing pay, half-pay, or pension, or who receive an increase of pay, supposing they are
only in receipt of a half-pay or pension. But they are still persons employed under the
Government of the Queen, and not under the Government of the Commonwealth. Then
the remainder of the clause exempts anyone:
Who is in receipt only of pay as an officer or member of the military or naval forces of the
Commonwealth, and whose services are not wholly employed by the Commonwealth.
If he belongs to what is called the permanent force he will be disqualified, because he will
be in receipt of an ordinary office of profit under the Commonwealth. For instance,
take the case Sir George Turner put, of a general commanding the local forces. He has an
Imperial commission, but beyond that he in receiving pay from the Commonwealth,
and would be ineligible. Take the officers of his staff, who are also employed by the
Commonwealth; they are ineligible. Take the men under them; they would be employed in
the regular forces, and would be in receipt of pay under the Commonwealth, and so
ineligible. But as regards the members of what is usually known as the volunteer, or
the militia, or the partially paid forces, it was considered reasonable in the 1891 Bill to
exempt them, and I think it is reasonable to exempt them now.
Sir GEORGE TURNER: No one objects to that.

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Mr. BARTON: The main point is that we exempt persons in receipt of pay, half-pay, or
pension, or commission in the Queen's service, apart from the Commonwealth, on the
ground that as they do not draw their pay from the Commonwealth, they have no
interest against the Commonwealth.
This makes it very clear that Mr Phil Cleary not having an office of profit under the
Commonwealth, and “that as they do not draw their pay from the Commonwealth, they
have no interest against the Commonwealth.” Then was entitled to be an elector and hold a
seat in federal parliament. This the judgment of the High Court of Australia never did bring out!
Therefore, electors are denied to vote for people who constitutionally are entitled to vote but are
wrongly excluded, being it Heather Hill, Phil Cleary and others. It is here that the Defendant as
a “constitutionalist” can show that FREE elections are undermined by the fact that judges
appointed on recommendation by a Government appear to the Defendant to be political bias and
by this willing to hand down judgments which no impartial Court would have as such handed
down. It is by this also that the Defendant takes the position that the “citizenship” issue cannot be
trusted to be decided without bias by the High Court of Australia but requires a Privi Council
decision, as the judges are bias or can be perceived bias, this also because for the High court of
Australia to make a ruling against the Australian Citizenship Act 1948, declaring it to be
ULTRA VIRES for so far it purports to define/declare citizenship and purports there is a
LEGAL FICTION of Australian nationality, then effective this may place in question their own
personal standing to be judges in the High Court of Australia.
Indeed, the Hansard 21-9-1897 Constitution Convention Debate shows;
The Hon. E. BARTON (New South Wales)[8.3]: I should like to say, without detaining
hon. members, that having spoken on this matter, and having expressed the strong
opinion that there ought to be some limitation that would prohibit any person from
being a member of the state parliament and at the same time a member of the
commonwealth parliament, I adhere to that opinion, but nevertheless that I have been
convinced by the arguments I have heard that this matter is not a subject for
incorporation in a document of this kind.
This underlines that the constitution never intended to deal with this, contrary to what the High
Court of Australia in Sykes v Clearly made it out to be.
And;
I do not want any absolute prohibition. I want to give the electors as free a hand as
possible, and experience will tell us which is the best course. I shall vote against the
proposed prohibition.
And
The Hon. I.A. ISAACS: It does not prevent such a person from being elected!
As such, the holding of a seat rather then the right to be elected was the issue and only regarding
a candidate who was having a disqualification in that regard.
As they also stated;
offices!
The Hon. S. FRASER: Men holding certainties are not likely to give up those
certainties.
Page 87
Mr. SYMON: They are not asked to give them up until the other is made a
certainty!
The Hon. S. FRASER: That removes part of my objection certainly.
The Hon. R.E. O'CONNOR: They are not to come under this provision until they have
been elected and have a right to sit in the federal parliament!
position.
Therefore, it is beyond question that Section 44 of the Constitution did not deny a person to
stand for election and be elected but only be prevented from taking up the seat if for some reason
this person is under a disability unless the disability is disposed of prior to taking up the seat.
It also means that a Member of one House of the Parliament can be elected for another House but
has top relinquish the original held seat if desiring to take up the new seat elected for. Meaning
Bronwyn Brishop never needed to resign as a Senator to stand for election for the House of
Representatives, as she could have remained a Senator and only vacated the Senate seat if elected
for the House of Representatives. As the Framers of the Constitution stated; “They will be
capable of being elected whilst holding the other position. ” and this underlines that holding a
certain position such as an “office of profit with the Commonwealth of Australia” itself was
not a bar to be a candidate, but was a bar to take up a seat in the Parliament! As set out further in
this ADDRESS TO THE COURT the word “CHOSEN” in sections 11, 43 and 44 of the
Constitution has not them meaning being elected during an election but being “chosen” byu the
governor of the State or the Governor-General to take a seat in the parliament.The Defendant
views that the High Court of Australia has caused considerable misconceptions as to the true
intentions of the Framers of the Constitution and for this it is essential this is avoided in regard
of any judicial decision regarding “citizenship”.
This matter is also extensively canvases in my 30 September 2003 book;
ISBN 0-9580569-6-X
For example, the history of the creation to what eventually became Section 44 of the
Constitution is set out extensively in particularly also in CHAPTER 11 PHIL CLEARLY
DISSASTER, in the document; Chapter 11A Public service.doc. Other matters relating to
Section 44 are also referred to in such as in the in the following Chapters;
Folder; CHAPTER 00 Set out about CITIZENSHIP

Document; Chapter 00A Set out about CITIZENSHIP.doc
Folder; CHAPTER 11 PHIL CLEARLY DISSASTER

Document; Chapter 11A Public service.doc
Document; Chapter 11E RESTRICTION FOR PUBLIC OFFICE.doc
Folder; CHAPTER 33 CONSTITUTION CONVENTIONS;

Document; 18970417@U738-831.doc
Document; 18970921@U932-1035.doc
Page 88
Folder; CHAPTER 75 ADDRESS TO THE COURT

Document; Address to the court-8.doc
Document; Address to the court-9-UPDATE.doc
Document; CHAPTER 75 ADDRESS TO THE COURT.doc
The High Court of Australia never itself ever conducted such extensive research when deciding
the Sue v Hill and the Sykes v Cleary cases, and by this ended up to hand down judgments based
on errors of constitutional law.
As such, the Defendant has made this “citizenship” and “who can be a candidate” very much
an issue over the years relevant to elections and very much is a part of this case that there were
no FREE elections (unrestrained elections) where people are being denied to be candidates
purportedly because of constitutional provisions which in fact do not exist as such as is shown in
the example referred to previously.
That Holmes v Angwin, (1906) 4 (Pt 1) CLR 297 at 309. Barton J said;
"The character of the jurisdiction which has been exercised by Parliaments as to election
petitions is purely incidental to the legislative power; it has nothing to do with the ordinary
determination of the rights of parties who are litigants."
The same applies to the Court of Disputed Returns, where the High Court of Australia is acting
for and on behalf of the Parliament, and not as a Court of Law to uphold the rights of the parties
in principle. Hence one ought to be very careful to seek to apply judicial decisions of the Court
of Disputed Returns as they are not binding in that regard, as are ordinary judgments of the High
Court of Australia. Gummow J decision in the Ned Kelly case not only defies the intentions of
the Framers of the Constitution but is made on behalf of the Parliament, and as such not binding
as any other Authority might be considered of a Court of law operating in normal judicial
manner. As such also, the Prosecutors issue of what Gummow J may have stated in that case
about publications of the Gazette is not relevant where it defies what is embedded in the
Constitution. The Proclamation was never published in a Gazette that showed the legal
requirement demanded in the Act Interpretation Act 1901 (Cth) that it must show the wording
“Government Printer” and was neither published as required by the Framers of the
Constitution before it could be acted upon. Therefore the election process never even
commenced within constitutional and other legal requirements and as such in effect the elections
were LEGAL FICTIONS, and so their results are and remain ULTRA VIRES and so without
legal force.
[ 1275] 3 Edward I {State of Westminster the First} C.V. whose law, adopted and enacted
in the Imperial Acts Application Act 1980 –
PART II – TRANSCRIBED ENACTMENTS STATES:
- And because elections ought to be free, the King commandeth upon
great fortfeiture, that no man by force of arms, nor by malice, or
menacing, shall disturb any to make free election.
In my view, the Court cannot pursue to force the Defendant to submit to some kind of election
where it is not a FREE election, neither use force to punish the Defendant in that regard as to
somehow seek to force the Defendant to vote in future.
Again;

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certainties.
certainty!
Yet, we have now that police officers, fire brigade officers, soldiers, and others who are daily
putting their lives on the line now are denied to be a candidate unless they first resign their
positions, not because the Constitution requires this but because this is made out to be so
required by the High Court of Australia.
We have judges who are deemed to be competent to deal with trials and sentence murderers,
rapist and other criminals but unless they resign as a judge they are not allowed to stand as a
candidate in an election. Not because the Constitution require this, but because of High Court of
Australia judgments made in error of constitutional law.
How then can there be FREE ELECTIONS where these and other competent persons are
unconstitutionally denied to be a candidate?
How then could this Court, and indeed any other Court, in this regard also convict anyone of not
voting where the elections are held in an unconstitutional and illegal manner? After all if a Court
is to enforce the law of the land then it must not ignore the very Constitution which is the basis
of any sub ordinary law enacted under it.
The Defendant submits, that even so he does not require to state his religion and neither which
part of his religion is relevant for a religious objection as it can be a secular objection, he has
religious objections and one is that “THOU SHALL NOT KILL” where Mr. John Howard
unconstitutionally authorised the murderous invasions into Afghanistan and Iraq. How on earth
could anyone expect me to vote by preference voting for what I consider a mass murderer and
one who committed treachery, treason, sedition and committed crimes against humanity, and by
this voting for anyone who supported the war, such as members of his political party.
My right to abstain from voting could not be denied, neither be punished.
Likewise, in regard of the 2001 election where unconstitutionally, against International
obligations, such as the maritime report in regard of the sinking of the Titanic it is unlawful to
allow or to send any boat or ship away that is unseaworthy. Yet, we had the Government using
the navy to do so and refugees drowning in the process. We had the Australian Federal Police, a
law enforcement agency, being involved in what was claimed to be conduct to discourage people
smuggling, but it was being to prevent refugees to come to the Commonwealth of Australia, and
in the process we had the sinking of SIEV X, with 363 people aboard of which 146 children, on
19 October 2001.
The Defendant submits, that no one in his right mind could enforce any unconstitutional voting
electoral laws to force me to vote against me. I value human life to precious and it is my peaceful
way to protest against this kind of conduct.
The Defendant submits, that the Court rather seeking to enforce unconstitutional legislation
against the Defendant it would do better if the Commonwealth Director of Public Prosecutions
were to occupy the Courts time instead to have Mr John Howard and others facing the Courts as
to their unconstitutional and otherwise illegal conduct.
To disregard the, what I consider plain murder of refugees, by towing their unseaworthy boats
back into the sea and so leave the occupants left to the perils of the sea in my view is
unacceptable and the Commonwealth Director of Public Prosecutions, so to say, ought to get his
act together and pursue those responsible for their day in Court. After all what are laws for if
those in power can unconstitutional authorise a murderous invasion and get away with it?

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While the Australian Federal Police, as the Defendant understands it, seeks to excuse themselves
that they paid people to “discourage” refugees from coming to the Commonwealth of Australia,
in the defendants view, where any person acting so then goes to the extend to tamper with boats
causing the death of many, then the Australian Federal Police must be held accountable for their
deeds.
For this also, the Defendant holds that no one could demand nor expect that the defendant was to
cast a vote that could be utilised then by any person involved in such criminal conduct as to
claim to have the support of the people in view of the votes cast.
Because it is a preference voting system, the vote of an elector could turn out to go to a person
they never really wanted to vote for by the preference counting still could be.
The Defendant submits, that if the elections were held in a manner that an elector could vote for
the number of candidates he desire, and once those choices are exhausted then the vote simply no
longer is used, but because a preference voting system requires a voter to list all candidates, the
elector is by this robbed of a FREE election.
As a candidate, I opposed the murderous conduct against refugees in 2001 and for this also was
entitled not to vote where the major parties appeared to support the conduct to tow unseaworthy
boats in breach of Australian law, as well as International Law, back into Indonesian waters
regardless that people died as a result.
Hansard 31-1-1898 Constitution Convention Debates [page 354]
Mr. WISE (New South Wales).-
It might be that a law passed by the Federal Parliament was so counter to the popular
feeling of a particular state, and so calculated to injure the interests of that state, that it
would become the duty of every citizen to exercise his practical power of nullification
of that law by refusing to convict persons of offences against it. That is a means by
which the public obtains a very striking opportunity of manifesting its condemnation
of a law, and a method which has never been known to fail, if the law itself was
originally unjust. I think it is a measure of protection to the states and to the citizens of
the states which should be preserved, and that the Federal Government should not have the
power to interfere and prevent the citizens of a state adjudicating on the guilt or innocence
of one of their fellow citizens conferred upon it by this Constitution.
Every person in this case include also any judicial officer!

The Defendant submits, that therefore that no judicial officer having made an “oath of office”
could in any way whatsoever cause a conviction against a person who stands up against tyranny
and murderous conduct and other inhumane conduct for the advance of human rights and
humanity at general.
This Court, as all Court uses the Bible so people can make an oath when giving evidence, then
this Court cannot act contrary to the teaching of this Bible, THOU SHALL NOT KILL, and
somehow seek to punish me for doing what any humane person does and that is to refuse to join
and/or support in any way (including voting for) a group of callous murderers, where they are
using their powers to authorise the killing of so many.

Page 91
The Defendant submits, that the issue is not if the Magistrates States Court of Victoria and/or
the County Court of Victoria is invested with federal jurisdiction, but rather if either could in this
case INVOKE legal jurisdiction. As I understand it, generally the Supreme Court of Victoria
will not accept any litigation to be conducted unless the party instituting proceedings can show
that the Court can INVOKE legal jurisdiction.
The Prosecutor’s only evidence, apart from relying upon the averment rule, appears to be having
filed enrolment cards, which in themselves upon what the Defendant submit cannot be relied
upon being some kind of proof that the Defendant was required by law to vote.
The Defendant submits, that the filling in of enrolment cards therefore is not a critical issue as
to evidence that a person is required to vote, and itself does not itself give any legal force against
anyone who is not lawfully eligible to vote, as many people fill them in, and even “cats and
dogs” were allegedly found to be registered, even so not legally entitled to vote, this as the
incorrect usage of the term “citizen” is causing such confusion that many people who are
“aliens” but regard themselves as being “citizens” within the constitutional concept therefore
register, and understand obligated to do so, even so they are not perhaps entitled to do so but are
unaware of this. As the legislation itself has provided, as the Defendant submits, “a failure to
vote in itself is not an offence” then the Prosecutor must not just prove why it is in this case an
offence, and must prove this beyond reasonable doubt, and so also that the Defendant did not
vote in each election, and that he had no lawful excuse not to do so, as to be able to invoke the
jurisdiction of the Court.
The Defendant has previously and maintains his issue of ss245(14) CEA1918 of objection
under religious grounds, including any secular objections, and if this objection were to be
sustained in any subsequent proceedings then any conviction must fail as clearly if s245 of the
CEA1918 is applicable, which the Defendant contest is unconstitutional, then even if the
Prosecutor were to succeed to prove the constitutional validity of s245 of the CEA1918, not that
the Defendant seeks to imply he can do so, he still has to get over the hurdle of each and every
excuse the Defendant may proffer, in addition to having first have to resolve the outstanding
constitutional issues on foot.
The Defendant submits, that he was denied “NATURAL JUSTICE” and a “FAIR and
PROPER trial” by the magistrate having failed to provide a REASON OF JUDGMENT,
despite having been requested by the Defendant to provide this. It may be noted that while these
proceedings come before this Court on Appeal to be heard DE NOVO, (And besides the right of
the Defendant, in particular where he had given such elaborate effort to present his case to be
made aware by a reason of judgment upon what grounds he was convicted, if not only he is
entitled upon this, but also perhaps to assess where he might have failed in the presentation of his
case so he could on appeal address those issues.) it is essential it is highlighted what may have
gone wrong to result to a conviction so the same errors may be avoided in any further
proceedings.
The Defendant submits, that the usage of the averment rule, even if allowed for, not that he
seeks to admit to this being appropriate, then it refers to contrary evidence, and where he filed
extensive contrary evidence then in that regard the averment rule never could be applied.
Further he claims that the Prosecutor having the burden to prove his case and using the averment
rule not to do so, then it was proper for the Defendant to claim NO CASE TO ANSWER, as it
was not relevant what was presented to the Court afterwards as at the time of NO CASE TO
ANSWER claim there was no evidence, and once the Defendant opened his case before the
magistrate it was not open to the Prosecutor then to reopen his case to call witnesses or introduce
other evidence he had specifically refused to use by seeking to rely upon the averment rule. The
Page 92
Defendant claims that other then cross-examination the Prosecutor once relied upon the averment
rule and having his case closed then simply had no way then to challenge the Defendants excuses
given during his evidence in previous proceedings.
The Defendant submits, that as he had attended to the polling station each election, and this was
never disputed by the Prosecution, then without any evidence by the Prosecution as to what
eventuated in the polling station is not for the trial judge to assume and as such there never could
have been a conviction upon the basis that it was established “beyond reasonable doubt”, as the
Defendant did set out in his material that the Australian Electoral Commission often make errors
in crossing of the wrong names and as such without contrary evidence this point remained open.
The Defendant submits, that the Prosecutor failed to disprove each and every excuse the
Defendant gave, which is required to enable a conviction to occur, as many of the issues the
Defendant raised were ignored by the Australian Electoral Commission. If indeed the Defendant
is right about his claims that s245 of the CEA 1918 is ULTRA VIRES because of his
constitutional based objection then the Australian Electoral Commission failing to obtain a ruling
of a competent Court to make a declaration to the constitutional validity of what was objected
against then in any event the Court could never invoke legal jurisdiction as the legislation in that
regard is and remains ULTRA VIRES.
The Defendant submits, that even if in some point of time in the future the High Court of
Australia were to declare Section 245 of the CEA1918 to be constitutionally valid, not that the
Defendant seeks to indicate the Court might do so, it nevertheless in the mean time was ULTRA
VIRES, and as such the charges cannot be legally justified, as not until after the Court declares
the legislation that is ULTRA VIRES due to the constitutional based objection is declared
ULTRA VIRES it is and remains without legal force. So, likewise the proclamation and writ(s).
In any event, even considering every declaration were to go against what the Defendant claims,
in the end the issue then is if the Defendant had mens rea, to commit any criminal offence or in
his own views he was entitled to refuse to vote, if this the Court were to conclude he did, because
of his objections made.

Mr. GORDON.-
The Defendant has placed before the Court that that it cannot invoke legal jurisdiction to deal
with the charges on a number of grounds. He contents that he made numerous objections to the
Australian Electoral Commission, and in previous litigation, etc, about constitutional and other
legal issues affecting the Proclamation, the writs, and legislative provisions itself, and that it
were the lawyers of the Australian Electoral Commission who by their 25 October 2001
themselves presented the option for the Defendant to pursue legal action in the Federal Court of
Australia and by this then there is an ESTOPPEL that they cannot then, while legal proceedings
are ongoing then they nevertheless seek to enforce the legislation by proceeding with the election
as if no constitutional based objection was made as so the Defendant makes clear, once he made
his constitutional based objection then the “legislation, part of legislation, proclamation and/or
writ(s)” are and remain ULTRA VIRES until the High Court of Australia adjudicate upon this to
declare it to be INTRA VIRES or ULTRA VIRES. The Defendant submits, that this in itself
is an ESTOPPEL as by the objections the Proclamation, writ(s) and legislation are all ULTRA
VIRES, and remain so, unless and until the High Court of Australia has made its declarations in
that regard to show otherwise. The Defendant has provided a wealth of information to support his

Page 93
argument including quotations of the Hansard records of the Constitution Convention Debates
which appears to support the Defendants contention that this is embedded in the Constitution.
The Defendant submits, that the Australian Electoral Commissioner has and had a DUTY OF
CARE towards the Defendant, in his position of having to provide FAIR and PROPER
elections, and not have misled the Defendant as to the appropriate avenues to follow through
objections made by having its lawyers indicating that filing the case in the Federal Court of
Australia was the appropriate legal way to follow only then at commencement of the proceedings
on 7 November 2001, without prior notification, object to the legal jurisdiction of that Court.
The Defendant acknowledges that if the Federal Court of Australia indeed had no legal
jurisdiction, something he does not accept as otherwise by the various authorities it would come
to that then there would be no Court at all having legal jurisdiction to deal with constitutional and
legal issues raised, (This, even so the Defendant was directed by the Registrar of the High Court
of Australia to file his case in the Federal Court of Australia , which he did on 2 November 2001)
and this in a democratic society he argues cannot be tolerated, then the Australian Electoral
Commissioner was entitled to make such an OBJECTION TO LEGAL JURISDICTION to
the Federal Court of Australia provided the Australian Electoral Commissioner had advised the
Federal Court of Australia that the proceedings had in fact been instituted upon its corresponded
details, and as such the sudden OBJECTION TO LEGAL JURISDICTION by the Australian
Electoral Commission should be carefully considered and taken into account in any ruling the
Court would make.
The Defendant submits, that the objection/appeal process against the validity of the holding of
an election, such as the legal processes involved are part of the election and as such the
Australian Electoral Commission being duty bound to provide FAIR and PROPER elections
failed to provide this where he misled the Defendant and the objections remain outstanding.
The Defendant submits, that the passing of time does not alter for one of iota the
unconstitutional constitutional position of the elections neither if any subsequent elections have
been held.
The Defendant submits, that he has in an elaborate way made constitutional based objections
against the validity of the Australian Citizenship Act 1948, to declare/define citizenship as he
submit, “citizenship” is a State legislative power. Further more, he submit, that constitutionally
ss51(xix) provides only for the “naturalization” of “aliens” to become “British nationals”,
which when residing in the Commonwealth of Australia are referred to as Australians as much as
are “aliens” residing in the Commonwealth of Australia and as such where the Attorney-General
of the State of Victoria made known there is no State citizenship then the Defendant submits,
there can be no Australian citizenship either. In any event, the Defendant submits, that the
Racial Discrimination Act (Cth) enacted within subsection 51(xxvi) is in fact unconstitutional
but by it causes a disability against all Australians and for this not a single Australia has
franchise as this is in the citizenship which is removed by the effect of this Act.
The Defendant submits, that the Court cannot invoke legal jurisdiction unless first the High
Court of Australia has declared the “legislation, part legislation, proclamation and/or writ(s)”
declared INTRA VIRES, if it were to do so, as they remain ULTRA VIRES, and as such any
legislation the Prosecutor relies upon is not legally enforce without such declaration. The
Defendant cites for example the fact that the proclamation was not published in accordance with
the requirements of Section 32 of the Commonwealth of Australia Constitution Act 1918 (the
Constitution) and that his evidence on Court file proves that the writs were issued prior to the
Page 94
proclamation having been published and as such the election process depending upon valid
published proclamation never even commenced. The Defendant submits, there were no valid
elections held, and as such in that regard s245 of the CEA1918 in that manner neither can apply,
as it requires a valid election.
More over, the Defendant submits, that on 15 April 1898 the Framers of the Constitution (the
Delegates to the Constitution Convention) refused to allow compulsory enrolment and voting and
as this was never before considered by any courts all and any authorities about being obligated to
vote were ill conceived and this opens the constitutional based objection against Section 245
CEA1918 in that it contradicts the intentions of the Framers of the Constitution.
The Defendant submit, that none of the Authorities on foot about having to vote related to a
candidate refusing to vote, and he cites an objection that where he stands as a candidate that he
does so because of opposing what other candidates are standing for, then it is unacceptable that
he could be forced, by way of preference voting, to end up voting for an opponent candidate.
Indeed, he cited his refusal to direct preference voting as an other issue. By this the Defendant
makes clear that he opposed the war involvement by the Commonwealth of Australia and could
not vote or be forced to vote by preference usage where his vote would could be used by those
who are supporting such kind of war as it goes against his religious beliefs.
The Defendant submits, that This Court is not the “County Court of Victoria” in hearing
matters but in fact is the “County Court of Victoria invested with federal jurisdiction” and by
this State Court legal procedures remain applicable and cannot be disturbed by Commonwealth
legislation such as s388 of the CEA1918 pertaining averment, the position of laws objected
against upon constitutional grounds being ULTRA VIRES unless and until the High Court of
Australia declare otherwise, but the Court is bound to follow constitutional doctrines embedded
in the Constitution and by this can invoke NULLIFICATION where the Court considers that
justice demand that those charges and or the legislation such as s245 of the CEA1918 are to be
NULLIFIED. The Defendant also raised with this the issue of DOUBLE JEOPARDY where
he argues that albeit this is a hearing DE NOVO nevertheless, the Prosecutor having used the
averment rule refusing to present evidence, and by this scoring a conviction, the Prosecutor as he
put it “can have a second bite of the cherry” by now with the DE NOVO hearing perhaps
presenting witnesses whom may now seek to counteract what the Defendant has placed before
the Court and this is an unfair and improper manner as this is also what the DOUBLE
JEOPARDY rule seeks to avoid, that Prosecutors cannot just keep changing their conduct so if
they failed to prove their case in the first place then they can devise tactics in each and every
subsequent trial to score finally some conviction. The Defendant submits, that the fact that the
Court convicted without jurisdiction does not prevent the DOUBLE JEOPARDY rule to be
applied.
The Defendant submits, that this Court is duty bound to decide first and foremost if it can
invoke legal jurisdiction, and the Defendant oppose this also citing the fact that the magistrate on
4 December 2001, upon submission of the Prosecutor adjourned the charge then in regard of the
2001 election for the High Court of Australia first to deal with the various constitutional based
objections and that the Defendant consented to this. The Defendant submits, that it is not his
obligation to disprove legal jurisdiction or that the Court cannot invoke legal jurisdiction rather it
is up to the Prosecutor to prove this and to overcome each and every objection the defendant has
made, and in support of this the Defendant has provided ample of authorities, both within the
Australian legal jurisdiction as well as international authorities. The Defendant submits, that the
ruling of the magistrate on 4 August 2005 that the Prosecutor was to serve all relevant evidence it
sought to rely upon if the OBJECTION TO LEGAL JURISDICTION was dismissed upon

Page 95
the defendant prior to the hearing of the charges. The Defendant submits, that neither orders
were appealed against and remained on foot.
The Defendant submits, that in view the Prosecutor did not fulfil the burden of proof, that the
Court could invoke jurisdiction, he was entitled to take it that the Prosecutor had abandoned the
charge relating to the 2001 election, albeit he further claims it did not and does not validate any
“legislation, part legislation, proclamation, writ(s)” that he claims are now ULTRA VIRES
because of the constitutional based objections made against them.

Dr. QUICK.-
we were not in any way interfering with our position as subjects of the British
Empire. It would be beyond the scope of the Constitution to do that. We might be
citizens of a city, citizens of a colony, or citizens of a Commonwealth, but we would
still be, subjects of the Queen.
The Defendant submits, that the statement “It would be beyond the scope of the Constitution
to do that.” in itself makes clear that any decision of the High Court of Australia itself is and
remain ULTRA VIRES, where it offence its constitutional powers to declare laws INTRA
VIRES beyond the provisions of the Constitution. Such as that Heather Hill was some kind of
“alien”, not entitled to hold a seat in the Senate. This, as the High Court of Australia cannot
declare a British subject an “alien” or not entitled to constitutional rights as this would be beyond
the scope of judicial powers provided to the High Court of Australia under the Constitution.
Where this judgment affected other British subjects, it is a major disaster at hand.
The Defendant also has relied upon the decision of the High Court of Australia in
Neil v Nott (1994) 68 ALJR 509 at 510 (High Court)
"A frequent consequence of self representation is that the court must assume the burden of
endeavouring to ascertain the rights of the parties which are obfuscated by their own
advocacy"
This does not mean that the Court is obligated to conduct the case for the unrepresented
Defendant but is obligated to ensure that the proper legal processes are followed in proceedings
before the Court. In law, the Defendant is unrepresented and as such this duty applies.
When this Court faces an OBJECTION TO LEGAL JURISDICTION in that it cannot invoke
jurisdiction because of certain obstacles which have to be dealt with first, then this Court cannot
simply ignore those matters.
On the material on Court file it is clear, that the Defendant made elaborate constitutional based
objections, including that the elections were and remain unconstitutional, and there has been no
formal judgment on record that formally declared that the matters the Defendant claims are now
ULTRA VIRES in fact have been declared INTRA VIRES. It may never have donned nor
comprehended by the Australian Electoral Commission and/or any lawyers (including judges)
involved in these matters how constitutional based objections instanter had the effect to cause the
proclamation, writ(s), legislation objected against to be ULTRA VIRES and remain to be so
unless a competent Court of federal jurisdiction determine otherwise. Federal legislation that
purport to set out a legal process to be followed – as set out by the defendant in his ADDRESS
TO THE COURT- do not have any bearing upon the processes of a State Court, not even when
exercising federal jurisdiction, and neither can effect the rights of the Defendant where such
Page 96
legislative provisions are beyond constitutional powers and/or are seeking to interfere/undermine
the defendants rights and application of his objections.
It is not for this Court at this stage to decide if the elections were or were not constitutionally or
otherwise validly elected as that remains in question considering the material on Court file.
In the Marriage of Tennant (1980) 5 FLR 777 at 780 (GS17)

"As no grounds for appeal are required to be specified in the notice of Appeal, which, on
filing institutes the appeal (reg 122), there is no limitations of the scope of the appeal and all
findings of fact and law made in the lower court in relation to the decree appealed are in
challenge and cannot be relied on by the appellant or the respondent. All the issues (unless
by consent) must be reheard. This of course brings me to the point of the absence of reason
for the magistrates decision in this case. Perhaps reasons were given orally but not recorded
for the record. Apart from the requirement of such reason for the purpose of the appeal
process, there is the basic ground of criticism that litigants who go to court, put their
witnesses up, argue their case and attempt to controvert the opposing case are entitled to
know, if they lose, why they lost. If they are given no reason they may be entitled to feel
the decision against them was conceived in prejudice, bias, or caprice. In such a case not
only the litigant, but justice itself, is the loser.
Magistrates should realise, even more than they seem to do, that this class of business is not
mere ordinary trivial work, and they should deal with these cases with a due sense of
responsibility which administrations of the summary jurisdiction Act and the far reaching
consequences of the orders that they make thereafter entail. [Baker v Baker (1906)95 LT
549; In Robinson v Robinson (1898) p135; and again in Cobb v Cobb (1900) p145] it was
stated that when making orders of this kind, from which lies an appeal to other courts, it is
the duty of the magistrate not only to cause a note to be made of the evidence, and of his
decision, but to give the reasons for his decision and to cause a note to be made of his
reasons... Elaborate judgements are not required, but the reasons which lead the magistrate
to make his order must be explicitly stated.”
Because there is no REASON OF JUDGMENT and neither was any verbal reasons given by
the presiding magistrate causing to convict the Defendant, this Court cannot therefore elicit if the
magistrate did or did not deal with the issue of religious objection.
It is not for this Court to assume the Magistrate and indeed the Prosecutor may have overlooked
this issue because of the considerable amount of material placed by the Defendant before the
Court, but ultimately, this is why there is a need for a Reason of Judgment so that it could have
been elicited if this was considered by the presiding magistrate.
The Defendant submits, that an entire day of audio recording allegedly was defective, and on
that basis there is neither any other way it can be verified if the Court did deal with the religious
objection issue, even it is shown to be raised in the ADDRESS TO THE COURT which was
then before the Court.
The Defendant submits, that he was and remained at the Bar table while the magistrate asked
him to plea against the charges and this is not the proper legal procedures to be followed in that
the sanctity of the Bar table should not be misused as such.
The Defendant submits, that the magistrate allowing, contrary to the 4 August 2005 ruling, for
the Prosecutor to use the averment provision while on the other hand he was denied the right of
the UNSWORN statement, this because the Victorian Parliament had abolished the right to make
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an unsworn statement as to ensure that as much as the Defendant had a right to cross examine
and test the veracity of evidence presented by the Prosecutor then likewise the Prosecutor ought
to be given the same opportunity. The Defendant submits, that therefore the usage of the
averment provisions was inappropriate and denied him a FAIR and PROPER trial and indeed
that without specific legislation by the Victorian Parliament, as was in regard of ocean
exploration, the averment rule is not permitted in Victorian courts if not so provided for by
specific legislation by the Victorian Government. This issue, as in the HCA 27 of 1999 Wakim
case regarding Cross Vesting powers does appear to raise constitutional issues if the
Commonwealth of Australia can or cannot interfere with the State Court legal processes when
they are exercising federal jurisdiction .
Evidence Act 1995 (Cth)

25 Rights to make unsworn statements unaffected
This Act does not affect any right that a defendant in a criminal proceeding has
under a law of a State or a Territory to make an unsworn statement.
The Commonwealth of Australia itself clearly anticipated for the making of unsworn statement if
this right exist in a State or Territory. It then is an issue if in view of the abolition of that right,
and considering why the Parliament did so, as recorded in the Hansard, then in this regard the
averment rule likewise should not be allowed.

"We recognise that each party is entitled to a Fair and Proper trial and to an adequate
opportunity to adduce relevant evidence and to test the quality and veracity of the evidence
adduced by the other party."
Clearly, there are numerous constitutional and other legal issues raised by the Defendant which
required to have been promptly dealt with as to ensure that any election held would be fair and
proper, and any litigation is based upon the appropriate forum of litigation, however on the
material before this Court the Australian Electoral Commission other then opposing the hearing
of matters before the Courts, apart of pursuing charges itself against the Defendant relating to the
same elections, failed to undertake any action that could be deemed appropriate to ensure those
issues were appropriately canvassed.
In my view, these proceedings in regard of charges of “failing to vote” appear to be indeed

frivolous, vexatious and an abuse of the legal processes and on the material before the Court
doomed to fail, if indeed, just alone the religious objection were to be sustained.
The Defendant also relies upon

Sue v Hill [1999] HCA 30 (23 June 1999) :
These provisions are now reflected in Div 1 of the present legislation,

particularly in sub-ss (1) and (2) of s 354, but with additional provision in
respect of the Federal Court and Territory Supreme Courts. Further, s 192 of
the 1902 Act still persists as s 353(1) of the Act. This states:
"The validity of any election or return may be disputed by petition

addressed to the Court of Disputed Returns and not otherwise."
(emphasis added)

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The phrase "and not otherwise" implements the policy stated by Sir William Lyne in 1902,
to remove the dealing with election petitions from the control of the Committees of
Elections, and Qualifications to which such matters were then referred, and to direct the
petitions for trial in the Court of Disputed Returns.
This, the Defendant submits, underlines that the term “and not otherwise” is not preventing
challenges to the validity of the election process outside the Court of Disputed Returns and
indeed in regard of the validity of Senators of Territories to vote in the Senate this was instituted
in the High Court of Australia.
The validity of the election has been extensively canvassed by the Defendant and in view of the
constitutional and other legal objection made by the Defendant already since before the elections
were held then JUSTICE DEMAND that these proceedings in regard of charges are stayed
permanently until the Prosecutor first prove that this Court can invoke legal jurisdiction, and
before seeking to do so has ensured that the appropriate Court has declared if the “legislation,
part legislation, proclamation and/or writ(s)” as the Defendant refers to it are and remain
ULTRA VIRES or any or all are INTRA VIRES.
Unless these constitutional matters have been dealt with no charges and their validity can be
considered.
The Defendant submits, that the proceedings could not be terminated by the Prosecutor for that
this would be beyond the jurisdiction of this Court to do so as the constitutional and other legal
objections first are to be dealt with before this Court even can contemplate to invoke legal
jurisdiction to deal with the charges themselves.
The Defendant submits, that once he made constitutional based objections then from that
moment the “legislation, part legislation, proclamation and/or writ(s) were subject to be ULTRA
VIRES and as such remain to be so unless and until a competent Court decides otherwise by
declaring it to be ULTRA VIRES or INTRA VIRES and that the Defendant himself has no
position to withdraw such objections as to do so would allow anyone to manipulate constitutional
based objections for temporary purposes.
The Defendants submissions, appears to be the right course to follow, and that the Australian
Electoral Commission requires to address those issues on foot, as after all these matters cannot be
left unattended, indeed ought to have been attended to appropriately as a matter of urgency.
The Defendant also has raised the issue as to cost, that he never sought any personal financial
gain for himself, and so did not seek any cost to be awarded in his favour that would give him
such financial gain, but that in 2002 did indicate that the Court ought to make an order for cost
against the Prosecutor (Commonwealth of Australia) payable to the Salvation Army, as some
way to underline is displeasure about the abuse of the legal processes by it. The Defendant relies
also upon a statement made by His Honour Gillard J of the Supreme Court of Victoria that
legislation is in place for cost to be awarded against lawyers where they are abusing the legal
processes, protracting litigation, etc.
The Defendant position is that he cannot personally claim cost in that his wife and himself are
retired.
The issue of orders of cost in my view could not be reasonable regardless of which party were
ultimately to succeed in this matter as the issues raised by the Defendant are of such vital and
critical importance to the nation at large that it would be absurd to somehow seek to place
pressure upon the Defendant that he may face orders for cost for doing what he should have done
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as a citizen of this country and what is of national importance. Indeed, considering that the
Prosecutor would not have any issue with cost if they were awarded against the Commonwealth
of Australia as by this the Defendant as a taxpayer still ends up paying towards any cost ordered
it placed the Defendant in a disadvantage that he is subjected to possible orders of cost while his
opponent is not.
The issue of ordering a payment toward the Salvation Army is to be seen as a payment into the
poor box, and could not be construed to be perceived as being an order of cost sought by the
Defendant in regard of himself. In any event, the Defendant did not seek any kind of cost in
regard of the charge relating to the 2004 election and as such it would be inappropriate to in any
event make such order for cost.
Love v Williams and AEC v Williams
Recognising the significance and novelty of the litigation, and its potential to save other
elections, Foster J agreed that the AEC should pay all the respondents' costs on an
unusually generous indemnity basis, as if the case had been a public interest proceeding
(reported separately in (1994) 54 FCR 383).
Appeal Nos. SA27 and SA37 of 1993 and SA21A and SA30L of 1994 No. ML2944X of 1989
64. Furthermore, we think it is also at least arguable that his Honour's order for costs of 10
March, 1994, works a substantial injustice to the father. Whilst the sum of $750.00 may
not seem a very large amount, we think that an order for the payment of even such a
relatively modest sum may work a substantial injustice to a person of modest means (as the
father appears to be) particularly if, in principle, no order for costs ought to have been
made against him.
Hansard, Friday 16 August 2002, JSCEM (Joint Standing Committee on Electoral Matters);
QUOTE
Senator ROBERT RAY – I was not going to go to any of the referendum stuff. I just want
to go briefly to electoral litigation. When someone seeks an injunction, do they have to
indemnify the Electoral Commission for damages? Quite often, when you seek
injunctive relief, you have to guarantee that this is going call cost to persons you are
injuncting.
Mr Becker- No.
Senator ROBERT RAY –You don’t have to? This has two sides to it, in fact. It
sometimes inhibits injunctions if you have those penalties. On the other hand, it is
somewhat fairer to the organization that is injuncted. But it does not apply to you; I
did not know that.
Mr Dacey- No, Senator.
It also ought to be considered that it may very well have been that if the matters had been
addressed appropriately by the Commonwealth Electoral Commission in the first place, when the
Defendant began to make his numerous objections known, then we may never have had these
current proceedings before this Court. It also may have avoided the cost so far incurred in
litigation.

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The Defendant submits, that the orders of the Magistrates Court of Victoria of 17 November
2005 are and remain set aside, and further proceedings relating to these charges are permanently
stayed pending the prosecutor first to deal with the issues that are and remain in question.
Finally, this Court faced with a hearing DE NOVO as result of a appeal by the Defendant against
the conviction by the Magistrates Court of Victoria at Heidelberg on 17 November 2005 having
been faced with an OBJECTION TO LEGAL JURISDICTION has not sought and neither
seeks to indicate having done so to determine the rights or wrongs of each party in these
proceedings regarding the various constitutional and/or other legal claims made by each of them.
The issue before the Court first of all is to establish if it could invoke legal jurisdiction, and the
Defendant submits, his conclusion that in the circumstances this is not possible.
Having federal jurisdiction and being able to invoke it are two different matters. Unless and until
the Prosecution can satisfy that this court can invoke legal jurisdiction the matter simply remains
unresolved in that regard.
The decision to prosecute any person and cause upon that person a criminal conviction, if the
Prosecution were to be successful is not to be taken too lightly. This, as it marks the person for
ever, when convicted. In the current circumstances the Court should be deeply troubled by what
has been placed before this Court and in appear to have taken place during previous hearings and
what appears to have been a gross lack of appropriate response by the Australian Electoral
Commissioner in regard of the Defendants objections made.
Valuable court time appears to be wasted to pursue charges where this time could have been
rather used to seek to address the issues of the objections and to at least seek to ensure that any
thing subject to being ULTRA VIRES was as a matter of urgency placed before the appropriate
Court for its declaration.
The Australian Electoral Commission is basically the guardian of the people in regard of
elections, as to ensure that elections are FAIR and PROPER and it can only conclude that where
the Australian Electoral Commission very obviously did not as a matter of urgency have the
issues of the objections appropriately addressed then this is beyond the fault of the Defendant,
and he should not suffer as result. As shown below in a copy of a 17-12-2001 correspondence to
the Australian
Electoral Commissioner, it is he who advises what is a suitable election date, and hence if he
misinformed the Prime Minister, the Governor-General, the Governor’s and others as to how
relevant time tables apply then obviously it all goes wrong as no one is checking the Australian
Electoral Commissioner, as after all it is assumed he knows what he is talking about. Therefore
the Australian Electoral Commissioner cannot excuse his conduct to hold elections on breach of
constitutional and/or relevant legal provisions as he is the very cause of this being wrongly stated
in the writs.
Because the Prosecutor relied upon the averment rule, rightly or wrongly, other then the
enrolment cards, there is no evidence that can be relied upon disproving any of the Defendants
claims, and as such the usage of the averment rule may very well now be fatal to the Prosecutors
case in that regard, including the determination in regard of any issue of cost. Therefore, in view
also of the Authorities quoted, it cannot be accepted that orders for cost would be appropriate in
the circumstance.
The Defendant submits, that any judicial officer who is pursuing to adjudicate in any Court
seeking to exercise federal jurisdiction own it not only to the general community at large or
his/her oath of office but also to himself/herself personally to ensure that he/she acts in
accordance with constitutional requirements, being it expressed specifically or otherwise
embedded. It is hereby also that to ignore the citizenship and by this for example allows the
Federal Government to deport children born within the Commonwealth of Australia as Stateless,
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regardless that those children are in fact the same nationals as our own children, then such
judicial officer merely is seeking to be a Pontius Pilates, but cannot clear himself/herself of the
disgraceful deed caused upon so many innocent children to be denied their birth rights as
provided for within the very Constitution this judicial officer pretends to seek to enforce, yet
ignored to declare the (constitutional) law as it is!
“The oath of a justice of this court is ' to do right to all manner of people according to law' Our sworn duty
is to the law itself and to the organic nature of the constitution first of all. If, then, we find the law to be
plainly in conflict with what we or any of our predecessors erroneously thought it to be, we have, as I
conceive no right to choose between giving effect to the law, and maintaining an incorrect interpretation, It
is not, in my opinion, better that the court should be persistently wrong than that it should be ultimately
right..
Whatever else may be said with respect to previous decisions - and it is necessary here to consider the
principals upon which a court should act in particular cases - so much at least emerges as is undoubtedly
beyond challenge, that where a former decision is clearly wrong, and there are no circumstances
countervailing the primary duty of giving effect to the law as the court finds it, the real opinion of the court
should be expressed.”
"In my opinion, where the prior decision is manifestly wrong, then, irrespective of the consequences, it is the
paramount and sworn duty of this court to declare the law truly...."
Again;
"In my opinion, where the prior decision is
manifestly wrong, then, irrespective of the
consequences, it is the paramount and sworn duty
of this court to declare the law truly...."
What is DE NOVO hearing & when can it be held?
&
NULLIFICATION
&
ESTOPPLE
&
DUTY OF CARE
A DE NOVO proceedings is where the Court revisit all and every matter in the case with a
disregard to what the judicial officer who originally dealt with the case concluded. The orders
issued by the previous judicial officer therefore are losing their legal status upon commencement
of any hearing DE NOVO and the Court hearing a case DE NOVO cannot rely upon orders
made previously for this but must issue its own orders as to avoid an implied bias that it merely
seeks to enforce previous orders and by this denied the right of a DE NOVO hearing.
However, as set out extensively below, the 4 December 2002 magistrate order that the matter be
dealt with by the High Court of Australia in regard of the constitutional issues regarding the
OBJECTION TO LEGAL JURISDICTION, upon submission of the Commonwealth Director
of Public Prosecutions, which I consented to, and considering that the Commonwealth Director
Page 102
of Public Prosecution has the burden to prove jurisdiction, then the failure by the Commonwealth
Director of Public Prosecutions to place the matters before the High Court of Australia is a
ESTOPPLE for any further proceedings to be held as to determine the innocent or the guilt of
the Defendant.
Therefore, the magistrate on 16 and 17 November 2005, when advised by me that these orders
were still outstanding could not invoke any legal jurisdiction, as the magistrate has no legal
powers to overrule or ignore orders on foot of another magistrate.
Hence, a hearing De NOVO in my view neither could proceed where the Commonwealth
Director of Public Prosecutions failed to place the matter before the High Court of Australia as to
overcome the constitutionally based objections to prove that the Magistrates Court of Victoria
could invoke legal jurisdiction.
Neither can the Commonwealth Director of Public Prosecutions withdraw the charges without
having first disposed of my OBJECTIONS TO LEGAL JURISDICTION, as set out
extensively below, and in the ADDRESS TO THE COURT filed in regard of the 16 and 17
November proceedings, once I made the objections as to the validity of the proclamation and
writs issued, then for all purposes the proclamation and writs are and remain ULTRA VIRES
and so any election outcome, and for this only a ruling by the High Court of Australia can
overcome the issue of validity of the proclamation, the writs, the validity of the elections having
been held and other issues objected against.
Further, neither can the Court dismiss the charges while my OBJECTIONS against the
proclamation, the writs and the validity of the elections remain on foot, as they cannot be
disposed of willy nilly but by a proper decision by the High Court of Australia, as is shown
below in quotations from the Framers of the Constitution.
Hence, this matter is in such a disastrous state that the Commonwealth Director of Public
Prosecutions has failed to follow through to prove legal jurisdiction and in the process has allow
the proclamation, writs, elections and other objected legislation to be and remain ULTRA
VIRES, and therefore without legal force.
While the Commonwealth Director of Public Prosecutions may perhaps realise that no conviction
could eventuate where ss245(14) can be applied, nevertheless the mere fact that my objection
were made and remain to be alive today means that the validity of the elections remain a life
issue which cannot be disposed of even if the Court somehow could end the charges against me.
It simply has no constitutional powers to deny a rightful judicial decision as to the objections
made, again, as set out below extensively.
In my view, a hearing DE NOVO cannot proceed until and unless the constitutional objections
against the validity of the proclamation, writs, elections and other matters are appropriately
disposed off.
In my view, the orders of the magistrate of 17 November 2005 should be set aside and further
hearing of the charges to be stayed pending the commonwealth Director of Public Prosecutions
having obtained a ruling regarding the matters subject to constitutional challenges.
On 2 November 21001 I then already challenged the validity of the writs and while the Federal
Court of Australia and the High Court of Australia refused to hear the matters upon their
MERITS this itself did not dispose of the constitutional objections. Proclamations and writs are
as any peace of legislation subject to being valid under the Constitution and once an objection to
its validity has been made, then they only way the objection can be disposed of is by a hearing by
the High Court of Australia by determining the validity of the legislation, proclamation and/or
writs subject to the constitutional objection. In my case both the Federal Court of Australia and
the High Court of Australia refused to entertain any application but never did formally dispose of
the objections themselves. As set out below, once an objection has been made then the
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legislation, part of legislation, proclamation and/or writ(s) then the legislation, part of legislation,
proclamation and/or writ(s) are ULTRA VIRES and remain to be so unless the High Court of
Australia in an appropriate manner makes a ruling against the items that they are constitutionally
valid.
As a self educated “constitutionalist” and Author of various books about certain constitutional
and other legal issues I am well aware that once, so to say, the ball has been started to roll then
no one can stop it but only the High Court of Australia by handing down a judgment against the
legislation, part legislation, proclamation and/or writ(s) concerned.
Mr. GORDON.-
Again;
and it leaves open the whole judicial power once the question of ultra vires is raised
Therefore the critical moment is when an objection is made! There is no provision for an objector
to make an objection, by which the legislation, part legislation, proclamation and/or writ(s)
become ULTRA VIRES and then somehow as it might suit the objector having perhaps
needlessly nullified the legal enforcement of the matter subject to the objection then could have
the matter reinstated by withdrawn an objection. To allow for this would effectively mean that
anyone could lodge an objection as to, so to say, temporary make a law non active, as to be able
to freely have a conduct without any risk of being held in breach of law and then subsequently
withdraw an objection to reinstate the law.
Once an objection is made it cannot be withdrawn but can only be disposed of by a order of the
High Court of Australia handing down a judgement upon the MERITS of the objection and if
the objection is sustained or dismissed.
While I did advise the magistrate on 16 and 17 November 2005 about the fact that he could not
invoke legal jurisdiction because of the outstanding constitutional issues, he simply ignored that.
Still, it did not give him legal jurisdiction to proceed with the matter and so all and any
decision/orders remain without jurisdiction and without legal force, and should be immediately
vacated.
It appears to me that neither lawyers or judges so far involved had any perception as to the
application of constitutional objections and neither when they are effective.
They are effective immediately an objection is made and remain effective unless appropriately
disposed of by the High Court of Australia by a judgment that considers all relevant matters.
It is for this also that any delay in hearing the objection is critical to the legislation, part
legislation, proclamation and/or writ(s) subject to the objection as it remains ULTRA VIRES
and cannot be legally enforced.
It means that since 2001 the election had no legal force! It also means that any purported
successful candidate appointed to a seat in the Parliament never was so. It also means that any
Bill passed by the Parliament since then would be worthless, as there was no proper forum for
this. It also means that any conviction of any person upon legislation or part of legislation passed
by the Parliament is also NULL AND VOID, as the was no valid Parliament constituted.
Below is also extensively canvassed further problems in that regard.
Even if this Court were to proceed with the hearing DE NOVO, disregarding the constitutional
objections on foot, as the magistrate decided to do, in the end any orders would be NULL AND
VOID and without legal force as ignorance to constitutional objections cannot make it lawful.
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Considering that nearly 5 years has passed since I commenced my objections upon constitutional
issues, I for one was all along aware that the longer this was dragged on to be ignored to be
appropriately attended to the more havoc this would cause. However, this was out of my hands,
as I cannot control the Court and neither can educate judges how they have to deal with
constitutional based objections, but to make known what the Framers of the Constitution
intended!
attacked. It might injure a few individuals, but that might be to the benefit of the whole.
Or if it were not, the party whose area of power was infringed on would attack if.
Again;
It would remain a law until it was attacked.
Clearly, once I objected to the constitutional validity of the proclamation, writ(s), election, etc
then from that moment it was and remained ULTRA VIRES.
For the Australian Electoral Commission, so to say, poesy footing about, playing games about
jurisdiction to avoid the matters to be determined upon their MERITS was in affect ensuring that
the purported election held was and remained ULTRA VIRES and without legal force.
In my it was darn right silly if not absurd for the Australian Electoral Commission to drag this
matter on, as he did, rather then himself insisting that the High Court of Australia immediately
made a ruling upon the constitutional validity of the election to be held.
That was in fact what the Framers of the Constitution intended should have to be done, so a new
election could be held or a election could be held instead of the originally planned election before
Parliament were to sit.
I have for years now urged for the establishment of an OFFICE OF THE GUARDIAN, a
constitutional council that advised the government, the people, the parliament and the Courts as
to constitutional powers and limitations, as then current disaster could have been largely avoided.
However, I am too well aware that more then likely those holding powers will abuse and misuse
it as to prevent anyone to expose them or to have matters appropriately attended to.
I am well aware that this Court may elect to ignore what is constitutionally proper and bulldoze
on, but in the end it does not and will not dispose of the constitutional objection that were made.
Worse, it would likely give an example to the community at large that, so to say, certain
lawbreakers can get away with it pending the power they are wielding.
In my view, and considering also what is stated in this ADDRESS TO THE COURT, this Court
cannot invoke and so not proceed with any hearing DE NOVO unless all constitutional
objections have been disposed off in the appropriate manner as intended by the Framers of the
Constitution.
It also ought to be understood that regardless what legislation the Commonwealth of Australia
may have on foot as to how to proceed with a constitutional objection, ultimately it is not legally
enforceable where it denied or interferes with the process that the Framers of the Constitution
intended. Therefore, if the Parliament were to have or would enact legislation that were to put
some regime into follow that would effectively try to prevent an constitutional objection to be
dealt with, then it too would be ULTRA VIRES, as no such constitutional powers were given to
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the parliament, as an constitutional objection is not based on when it is placed before a Court but
when it is actually made by the objector. Hence, it is neither having to wait if the Court finally
hears the objection as the objection is instanter applicable and therefore the onus is upon the
High Court of Australia to, so to say, have its act together to ensure that any constitutional
objection is heard and determined as a matter of urgency.
After all, once a constitutional objection has been made then there is no legal force in what was
objected against and as such to allow this objection to remain unattended to means that a object
objected against even so being ULTRA VIRES and so without legal force nevertheless can be
used somehow by the Courts and others and wrongly rob people of their rights.
Again, as a self educated “constitutionalist” I took considerable care to research this matter and
was all along aware that the so to say “game” the Australian Electoral Commission was playing
to prevent the constitutional objections to be disposed of was not working against me rather
ensured that the elections held are and remain unconstitutional, as they were held during a period
the writs were ULTRA VIRES. Even if the Court, not that I seek to indicate it will, were to
eventually declare the writs to have been within constitutional provisions and valid, nevertheless
unless and until such a decision is given the writs remained ULTRA VIRES.
The whole purpose of this is that people who make constitutional objections are protected against
any enforcement of the legislation, part legislation, proclamation and/or writ(s) against which a
constitutional objection was made.
The saying “Ignorance of the law is no excuse” perhaps fit very much to those involved in
having ignored the fact that my constitutional objections were applicable from the moment they
were made and remained valid unless and until appropriately disposed off.
In my view, no matter what may come from my constitutional objections, what is certain is that
because the constitutional objections are and remain on foot any purported election held are
ULTRA VIRES and so without legal force and no charge could be based on legal grounds to
fail to vote, irrespective if there was a failure to vote or not.
As set out below, a failure to vote in itself is not an offence if the person having failed to vote
has a reasonable excuse not to do so, and as such a failure to vote, being it on religious grounds,
being it because of the writs being defective, being it because of a constitutional objection
causing the legislation, part legislation, proclamation, and/or writ(s) to be ULTRA VIRES
during the period such objection(s) remains on foot then no duty to vote for this also could exist.
There appear to be no system in place dealing with objectors to vote because of certain religious
grounds, as none were presented to the magistrate on 17 November 2005 as such. Therefore a
person can have made a religious objection but for the magistrate, by the Commonwealth
Director of Public Prosecution using the averment rule and so refusing to present relevant
evidence, there clearly was no known system that the magistrate could elicit from what
procedure was used when a person object to vote upon certain religious grounds, and if the
person is nevertheless required to attend to a polling station or not. Or if the name of the objector
is nevertheless marked of as if he/she had voted or had been recorded as an invalid vote.
In my view, it was not for the magistrate to do mind reading to try to understand what the
Commonwealth Director of Public Prosecutions knew or didn’t know as it was for the
Commonwealth Director of Public Prosecutions to prove his case beyond reasonable doubt. This
clearly never occurred.
A failure to vote, on 1 January 2005, New Years Day notably, for example, as the magistrate in
regard of the 17 November 2005 issued order, clearly cannot be legally sustained as no election
was due and being held that day in regard of any local government, State or Federal election.
In my view any hearing DE NOVO would be doomed to fail from onset while constitutional
objections remain on foot. It is not relevant if lawyers/judges hold that they are on foot, as the
Page 106
magistrate proved to ignore this, what is relevant if the constitutional objections were made and
if there was any judgment by the High Court of Australia appropriately dealing with each and
every objection made and what was the result of such determination.
As set out below further, the burden is upon the Commonwealth Director of Public
Prosecutions to prove jurisdiction, and where I made constitutional objections then unless and
until those objection also are appropriately disposed of no Court can entertain the charges
pursued by the Commonwealth Director of Public Prosecutions.
In my view the charges are frivolous, vexatious and an abuse of the legal processes but this is a
matter this Court cannot decide it this is so or not unless first the constitutional objections are
appropriately disposed off, and this remains the burden of proof for the Commonwealth Director
of Public Prosecutions
My wife, who’s father was a lawyer and who’s daughter (my step daughter) has various legal
degrees, obviously was upset that, so to say, I scored criminal convictions on the hand of a
magistrate refusing to follow proper legal procedures. It is her view, as she gave me the
understanding of, that this is worse then the communism she fled from. For her, at age 73 to
make such kind of statement may indicate that there is serious wrongdoings, and where those
involved seemingly are more concerned to score convictions then to address the subjects of my
constitutional objections as to ensure that lawful elections are being held.
There is a saying that a game is not finished until the last ball stops rolling. Elections are never
finished until the last appeal process has been completed. In that regard, where I made
constitutional objections even before the (purported) elections were held then the (purported)
elections remain in that regard also in question. It does not matter one iota if further elections or
purported elections were held as the legal rule is that no subsequent court order can make the
original court order valid if it was issued without legal jurisdiction. As such if the original Court
order was without legal jurisdiction then each and every subsequent order will so be likewise.
The same with a purported election!
In my view, the 17 November 2005 orders of the magistrate are and remain a nullity, and any
hearing DE NOVO cannot proceed in the current circumstances, as set out further also.
The Counsel for the Commonwealth Director of Public Prosecutions on 16 November 2005
made clear to the magistrate that he had no intention to read the ADDRESS TO THE COURT,
well this was his decision but had he read it he may have realised that on constitutional and other
legal ground he never could validity obtain a conviction!
The fact that nevertheless the magistrate did hand down convictions, even the vexatious failure to
vote on 1 January 2005 conviction, while refusing to give a written Reason of Judgment may
underline that there are serious ills in how unrepresented Defendants are dealt with and denied a
FAIR and PROPER trial.
While never having had any formal education in legal studies, I used to study past appeal
decisions of various courts including that of the High Court of Australia and from them elicit my
own list of Authorities. In the process I learned that the High Court of Australia made clear that
when a party has made an OBJECTION TO LEGAL JURISDICTION the Court cannot
invoke legal jurisdiction merely because it might, so to say, fancy itself it can proceed with the
matters but must first dispose in a formal manner of each and every OBJECTION made as
failing to do so it never invoked any legal jurisdiction and its orders would remain NULL AND
VOID and without legal force.

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When then I had my case before the High Court of Australia for an appeal against the Marshall J
orders, I used the OBJECTION TO LEGAL JURISDICTION extensively against it legal
jurisdiction to entertain any application of NOTICE OF MOTION by the Australian Electoral
Commission as for example they had never filed an appearance and had sought to use some
backdoor tactic to try to get a foot in proceedings, etc. effectively, I had used what I had learned
from past High Court of Australia judgments against itself. The High Court of Australia simply
disregarded to formally attend to each and every OBJECTION, albeit acknowledging it had my
ADDRESS TO THE COURT which did set out various OBJECTIONS, and while it was
attempted by Gummow J to argue that I could not just at the hearing raise OBJECTIONS but
should have given advance notification to the other party, the ADDRESS TO THE COURT in
fact revealed that for a period of about 6 months prior to the hearing in fact I had done so, and
copies had been provided to the Registrar of the Court also.
Still, the Court failed to formally deal with each and every OBJECTION I had formally made
and placed before the Court and as such never invoked legal jurisdiction and by this its orders
were NULL AND VOID and of no legal force.
While the High Court of Australia may have “assumed” that it being the highest Court in the
Commonwealth of Australia it therefore has at all times legal jurisdiction, the truth is that the
High Court of Australia neither can INVOKE legal jurisdiction unless it does so in an
appropriate manner and dispose first of each and every element of an OBJECTION TO
LEGAL JURISDICTION. As I had set out, the Framers of the Constitution had made clear that
there is a right of appeal to the High Court of Australia from a decision of a Federal Court
refusing to issue a mandamus, prohibition and that the Commonwealth of Australia had no
powers to interfere with this.
Hence, no appeal to the Fill Court of the Federal Court of Australia was needed in that regard
concerning the Marshal J 7 November 2001 orders, as it was embedded in the Constitution that
one could directly appeal to the High Court of Australia.
Neither could the refusal to hear the Appeal on its MERITS in any way, so to say, get rid of the
constitutional objections I had made.
The truth of the matter was that the Federal Court of Australia never even had forms for my kind
of applications and the Registrar directed I create my own for this purpose! After more then 100
years of federation no one ever had taken the line of conduct I had done to make the kind of
constitutional objections as I did. Then again, no one ever may either have researched
constitutionally issues in such a particular manner as I did.
By this the High Court of Australia, as I view it, blundered in unchartered territory and rather
then to hold back and first assess what I was about with my objections rather decided to, so to
say, play along with the lawyers. The fact that it in the process never invoked any legal
jurisdiction and by this basically “went on strike”, so to say, refusing to hear and determine a
constitutional proper instituted appeal itself never did by this dispose of the constitutional
objections I had made against the writs and so the election processes, later supplemented with
other constitutional objections such as the proclamation being defective, etc.
What has however been established beyond reasonable doubt is that in the current climate of
litigation not a single judge (judicial officer) ever seems to have realised that the constitutional
objections are not pending upon when they are being heard by a Court of Law if at all but that
they are effective the moment they are made and for this it is a matter of extreme urgency that
the Courts, and in particularly the High Court of Australia fast track for hearing any
CONSTITUTIONAL OBJECTION, as not unduly to protract the period of the particular
legislation, part of legislation, proclamation, and/or writ(s) to be and remain without legal force
(ULTRA VIRES).
For example, if a police officer seeks to enter private property without due legal authority and
this is objected against by those in charge of the property, then the moment the objection is made
Page 108
the police officer would be without legal authority and even if the police officer were
nevertheless enter and collect items intended to be used as evidence in legal proceedings, then
the Courts subsequently cannot rule as to the validity of the police officers action as to when the
Court hearing was being held but would have to take the position that the objection was valid
from the time it was made and the objector didn’t require a court order to make the objection
formally. As such, the police officer not only tress passed but any so called “evidence” obtained
would be in admissible in Court.
Indeed, in the USA the court threw out a confession of murder obtained from a person after they
had illegally obtained items which they then used to obtain a confession.
The Courts must protect the rights of each person and guard against abuses and if this means that
at times those who otherwise might be found guilty walk free then this be so as after all the law
enforcement authorities must ensure they follow proper legal procedures and failing to do so they
themselves are the cause of the problem.
With the High Court of Australia and the magistrate there clearly was a disregard of following
proper procedures and as a naturalized person I have become owner of the Constitution as much
as anyone else and entitled to defend my property against any unconstitutional inroads. Hence,
my objections cannot be governed by some legislative provision the commonwealth of Australia
may devise as to seek to erode my constitutional rights, but rather I am protected to secure my
rights and my objections by what is embedded by the Framers into the Constitution.
The Constitution is the property of the people, and not of any Courts or Government!
My constitutional objections therefore are valid against anyone trespassing from the moment
they are made and as set out extensively in this ADDRESS TO THE COURT also they are
applicable from the moment they are made and not when, if at all, a Court might desire to deal
with the objections.
As much, there can be no argument that somehow the constitutional objections made somehow
automatically disappeared as they cannot and do not unless there is a formal and proper
adjudication as the framers of the Constitution made clear was required for this.
What has occurred is that we have ended up in some mind boggling constitutional and legal
situation that few can comprehend how severe it is.
It is what I anticipated from onset may be the end result, that I would have all kind of obstacles
placed in the way of pursuing constitutional objections by those who lack any kind of proper
understanding and perception as to how serious their conduct would amount to if they would do
so.
Basically, I placed in the hands for the lawyers (so judges) them self to become the terrorist, so to
say, to demolish the entire democratic system if they were to obstruct the proper hearing of my
constitutional based objections.
It ought to be clear that after nearly 5 years my constitutional based objections remain on foot, as
none were appropriately disposed off. Meaning that some day in time it might be realised that
after all I had been the creator of the largest destruction of a democratic system by using my
opponents power to achieve this if they were to obstruct my rights to have constitutional based
objections appropriately being dealt with.
In the mean time, for example, the Commonwealth of Australia has continued to purportedly
“naturalize” “aliens” to be come “Australian citizens” even so this legislation being subject to my
constitutional objection is ULTRA VIRES and so all those purported naturalizations are NULL
AND VOID.
It also means that those inducted to the bar making an oath of alliance may not be admitted at all
as this too is subject to a constitutional challenge. Indeed, any oath administered not that being to

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the loyalty of the British Crown in fact is subject to the constitutional challenge raised by me and
which remains on foot.
For the purpose of any DE NOVO hearing, how on earth could the Court possible commence to
hear this matter where whatever is requires to decide, such as my innocence or guilt depends
upon the validity of the election and other constitutional based objections which never were
disposed off in a proper formal and legal manner.
During proceedings before the High Court of Australia Gummow J commented something like
that the ejection had been held 23 months ago! As if the passing of time somehow could override
a constitutional based objection that an election was unconstitutionally and illegally held.
What this comment implied to me was that Gummow J recognised the election had indeed been
invalid but that in view of the passing of time it was better to leave matters rest as they were. Just
that a constitutional based objection does not operate this way. Once it is made it is out of control
of anyone but can only be address in a proper manner by the High Court of Australia dealing
with the constitutional based objection in a appropriate manner upon the MERITS of the
objection made.
For all purposes passing of time does not circumvent the constitutional based objection
(constitutional objection) and the constitutional objections remains in force as such regardless if
it might take years or centuries. Otherwise, any Court of Law could simply ignore any
constitutional based objection in the hope it somehow disappear.
If passing of time could circumvent any constitutionally based objection then the High Court of
Australia could simply stay any proceedings involving constitutional based objections and by this
circumvent the very intentions of the Framers of the Constitution to have it appropriately dealt
with as to dispose of the constitutional based objection as to validate the legislation, part
legislation, proclamation and/or writ(s) objected against.
The purpose of the Court having to deal with the constitutional based objection is not to validate
the constitutional based objection made but rather to declare the law (including proclamation
and/or any writ) to be within constitutional powers. As such, the very purpose of a hearing is to
declare it to be INTRA VIRES or ULTRA VIRES by declaring it constitutional position.
For all purposes, I am not the one needing to have the matter to be heard, as my constitutional
based objection is effectively applicable from the moment it is made, as it is by a land owner
against a police officer seeking to enter a property without due legal authority, and it is for the
Government (Commonwealth of Australia) then to obtain some kind of Court order to give it
legal authority, such as by having the courts declaring the legislation, part legislation,
proclamation and/or writ(s) declared INTRA VIRES. It is the government therefore who is in
need of a hearing on the matter to be able to obtain authorisation.
Since 1982, I have conducted a special lifeline service under the motto MAY JUSTICE
ALWAYS PREVAIL® and by this having to deal with people contemplating suicide, murder
even mass murder, often because of being disillusioned by the court system where they were
robbed of their rights. People who are in utter despair that regardless they were innocent of any
wrongdoing they nevertheless ended up convicted or otherwise robbed of their rights because the
manner lawyers played with legal technicalities to achieve their desired result regardless what
JUSTICE demanded.
In one case, the Abbott case the Country Court of Victoria made an order by default, even so Mr
Abbott had filed an Appearance but because he had not filed an Affidavit in support, he was
unaware of and was not advised having to file, he ended up having to pay , even so the claim was
Page 110
a manufactured one involving over $160.000,00 here we have that despite filing an Appearance
the Court does not accept this because no supportive Affidavit was filed and thereby even so well
aware of the intend by Mr Abbott to contest the vexatious and fraudulent claim he lost.
Yet, in the High Court of Australia where the Australian Electoral Commission failed to file not
only an appearance but also failed to serve a Chamber Summons then nevertheless the High
Court of Australia does not bother to continue as if for all purposes they had done so. As such,
the Courts have become the playground of lawyers versus unrepresented parties and JUSTICE
simply is a LEGAL FICTION.
It is this kind of conduct that I anticipated would be used ongoing, one of being to use the Courts
as some obstacle course to prevent my constitutional objections to be heard at all cost, not
realising that it was not an issue my constitutional objections were to be heard but rather for the
Court to declare the law INTRA VIRES or ULTRA VIRES once an constitutional based
objection was in place and had caused the legislation to be ULTRA VIRES. As such, I
contemplated to use the power of those opposing me to destroy the very fabrics of society if they
were to pursue this kind of conduct.
Prosecutors are not there to score convictions rather their duty is to place before the Court
all relevant details as for the Court to provide JUSTICE, if this includes a conviction then
so be it.
The Courts are not there to convict but to provide JUSTICE, if this includes a conviction
then so be it.
It never should be the aim for a prosecutor or a Court to pursue a conviction as to do so would be
bias and not serve the general community.
The history of NULLIFICATION is quoted further below, to indicate that it indeed was dealing
with nullifying laws that were deemed not acceptable to the jury to be enforced. Due to the recent
judgement by the Supreme Court of Victoria in the Abbott case about “NULLIFICATION” and
this might be used by the Prosecutor, I have no alternative but to address this issue in this
ADDRESS TO THE COURT, so to say, as a pre-emptive strike, as to ensure a better
perception is possibly obtained by those unaware of what NULLIFICATION is about.
It is of considerable concern that the judgment of the Supreme Court of Australia in the Abbott
case never appropriately did set out the relevant matters concerning NULLIFICATION and by
this now has placed on record some kind of denial of NULLIFICATION which may affect
many and would or likely would ensure that juries are denied their rightful entitlement to be
advised of this power of NULLIFICATION to be used! Indeed, Judicial officers also have
every right to apply NULLIFICATION, and this is often used, just that it may not have been
known to the relevant judicial officers as NULLIFICATION when they applied it!
It is essential that the true meaning of NULLIFICATION is addressed and that this Court also
understand that it can apply NULLIFICATION itself, as it is not dependent upon juries only
exercising such power as it is also invested in any judicial officer to exercise it.
HYPERLINK "http://www.law.umkc.edu/faculty/projects/ftrials/zenger/nullification.html"
http://www.law.umkc.edu/faculty/projects/ftrials/zenger/nullification.html
Jury nullification occurs when a jury returns a verdict of "Not Guilty" despite its
belief that the defendant is guilty of the violation charged. The jury in effect

Page 111
nullifies a law that it believes is either immoral or wrongly applied to the
defendant whose fate that are charged with deciding.
As shown below, laws must be passed by juries and where they refuse to enforce laws, then the
laws fails to be enforceable. The USA example dates back to the Magna Carta which is also
applicable in Australian legal jurisdictions.
"Jury nullification of law," as it is sometimes called, is a traditional right that was rigorously
defended by America's Founding Fathers. Those great men, Patriots all, intended the jury to serve
as a final safeguard – a test that laws must pass before gaining sufficient popular authority for
enforcement. Thus the Constitution provides five separate tribunals with veto power –
representatives, senate, executive, judges – and finally juries. Each enactment of law must pass all
these hurdles before it gains the authority to punish those who may choose to violate it.
Again
Thus the Constitution provides five separate tribunals with veto power – representatives, senate,
executive, judges – and finally juries. Each enactment of law must pass all these hurdles before it
gains the authority to punish those who may choose to violate it.
Regretfully, as I perceive it, the focus of the Prosecutor and judicial officers often are more
transfixed upon scoring a conviction then to provide JUSTICE.
In fact in another Abbott case the Supreme Court of Victoria somehow seemed to underline this
when stating;
QUOTE Supreme Court of Victoria Abbott case judgment, 4 May 2006, of 255 of 2004
15. The first ground was that the trial judge failed to properly instruct the jury as to a
principle which the applicant called legal nullification. The principle was taken from a
speech in 1898 by a Mr Wise, a new South Wales politician, the applicant said, stated,
“that if a law was passed by the Federal Parliament which was counter to popular feelings
in a particular State and calculated to injure the interest of that State, it would become the
duty of every citizen to exercise his practical power of nullification of that law by
refusing to convict persons of proceedings after civil proceedings in the same subject
matter.” According to the applicant, the principle of nullification was unknown until
“G.H. Schorel-Hlavka pointed it out in his book.” The applicant contended that s21A of
the Crimes Act was nullified because an intervention order had been made before the
applicant’s trial on the charge of stalking.
16. The so-called principle by the applicant has echoes of estoppel and autrefois convict. In
fact there is no legal principle by which an intervention order made under the Crimes
(Family violence) Act 1987, as extended by s.21A(5) of the Act, in civil suit 1 can
operate to bar a conviction for stalking.
17. The applicant’s concept of nullification is also said to entitle a jury to return a verdict of
not guilty notwithstanding that they are satisfied that a breach of law has been committed
if the jury thinks the law unjust. The applicant contends that the trial judge in the present
case was obliged to tell the jury that they could treat s.21 of the Act thus.
18. It is recognised that juries may deliver merciful verdicts. As King C.J., said in R. v.
Kirkman 2;

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“Sometimes juries apply in favour of an accused what might be described as an innate sense
of fairness and justice in place of the strict principles of law. Sometimes it appears to
a jury that although a number of counts have been alleged against an accused person
and have been technically proved, justice is sufficiently met by convicting him of less
than the full number.”
It is another matter altogether for a jury to determine which laws of the land are to be
enforced. The trial judge was under no duty to instruct the jury that they could return a
verdict of not guilty if they thought s.21A of the Act or its application in this case was
unjust. Indeed, he would have erred had he done so.
END QUOTE Supreme Court of Victoria Abbott case judgment, 4 May 2006, of 255 of
2004
And
QUOTE Supreme Court of Victoria Abbott case judgment, 4 May 2006, of 255 of 2004
2 (1987) 44 S.A.S.R. 591 at 593
END QUOTE Supreme Court of Victoria Abbott case judgment, 4 May 2006, of 255 of
2004
What is remarkable is that the Framers of the Constitution did not at all refer to what the
judgment of the Supreme Court of Victoria made out of it.
Actually the true version of what was stated in by Mr. Abbott was as follows:
QUOTE OUTLINE OF APPELLANT’S SUBMISSIONS
1. The presiding Judge (Justice Ross) failed and/or neglected to properly instruct the
jury on:
(a) Jury nullification being a legal principle and could be applied, if the jury wished
to do so in the circumstances presented in the case.
The Framers of the Commonwealth of Australia Constitution Act (then

known as the Commonwealth Constitution Bill), then made known (As
quoted from INSPECTOR-RIKATI® on CITIZENSHIP, A book on CD,
about Australians unduly harmed. ISBN 0-9580569-6-X. Published 30 September
2003, by Author Mr G. H. Schorel-Hlavka);

Page 113
Hansard 31-1-1898 [page 354]
Mr. WISE (New South Wales).-
It might be that a law passed by the Federal Parliament was so counter to

the popular feeling of a particular state, and so calculated to injure the
interests of that state, that it would become the duty of every citizen to
exercise his practical power of nullification of that law by refusing to
convict persons of offences against it. That is a means by which the
public obtains a very striking opportunity of manifesting its
condemnation of a law, and a method which has never been known to
fail, if the law itself was originally unjust. I think it is a measure of
protection to the states and to the citizens of the states which should be
preserved, and that the Federal Government should not have the power to
interfere and prevent the citizens of a state adjudicating on the guilt or
innocence of one of their fellow citizens conferred upon it by this
Constitution.
While this related to Federal law, the legal principle (High Court of Australia
Albert Lange case, principles applicable in the Commonwealth of Australia
Constitution Act also applicable in State provisions) provides that this also is
applicable in state litigation. As all breaches against commonwealth law in
effect must be conducted in a State Court exercising Federal jurisdiction
concerning a citizen of that State. As such the Framers were referring to the
legal principle of “NULLIFICATION” to be applied by a State Court!
Hence, the directions by Ross J to instruct the jury that they must find the
accused GUILTY if beyond reasonable doubt the charge s were proven was
misdirecting the jury, as the jury may have concluded that despite of the
charge being proven in the circumstances prevailing no conviction ought to be
made.
Despite this legal principle of “nullification” the jury was never advised of this
option and in fact was instructed to come with a GUILTY finding contrary to
this legal principle, if beyond reasonable doubt the evidence sustained the
charge.

Page 114
As a matter of fact, this legal principle neither appears to be used in any Court,
likely because it was unknown to exist until Mr G. H. Schorel-Hlavka
pointed it out in his book, which included a copy of the full version of the
relevant Hansard debates.
The fact that this legal principle might not have been known to the Courts, and
so by His Honour Ross J, and juries by this never were ever correctly
instructed, does not defeat the Appellants entitlement upon it.
END QUOTE OUTLINE OF APPELLANT’S SUBMISSIONS
And
QUOTE OUTLINE OF APPELLANT’S SUBMISSIONS
(a) While the Respondent does not appear to accept that Jury Nullification is
applicable and neither that the trial judge ought to instruct the jury to this, the
truth is that it is a matter of legal consequences of settlement that
“NULLIFICATION” and so also “JURY NULLIFICATION” is applicable at
least in Victoria since it became a sovereign colony (now State) as it was
applicable while the now State of Victoria was still part of the Colony New South
Wales, from the landing of the first fleet! I wish to underline the above with
including in this an email, provided to me by Mr. G. H. Schorel-Hlavka which
albeit is of the USA, have the same application of NULLIFICATION in view
that they too inhered this in their laws.
QUOTE 15-10-2005 EMAIL
Date: Sat, 15 Oct 2005 11:13:59 -0400
From: "Themis" <justice96@msn.com>
Subject: [AMOJ_MAIN] HISTORY OF JURY VETO POWER
To: <AMOJ_MAIN@yahoogroups.com>,
<victimsoflaw@yahoogroups.com>,
<victimsoflaw_discuss@yahoogroups.com>
HISTORY OF JURY VETO POWER

HYPERLINK "http://www.levellers.org/jrp/orig/jrp.history.htm" \t "_blank"
http://www.levellers.org/jrp/orig/jrp.history.htm
America's Founders worried that the government they created

might someday grow too powerful, and begin to pass laws which
would violate the rights of the very people it was intended to
protect: ordinary, peaceful, productive folks. But they kept an "ace
Page 115
in the hole", a
trump card they believed citizens could use to hold this new,
experimental government in check. That ace was the right to a trial
by a jury of one's peers.
How a jury can restrain a government? The key is that juries can say
"no" to bad laws and to arbitrary and unjust prosecutions. It's true!
The Founders realized that the temptations of power and corruption

would eventually prove to be too much for any of the three
branches of our government to resist, let alone check and balance
the other branches. They knew that government "of, by and for the
people" meant
that the people would every so often have to roll up their sleeves
and exert their authority, to act as the final check and balance on
the whole system. Since law is the main tool by which a government
exerts its control, trusting juries of ordinary citizens to veto the use of
bad law was the logical choice.
So they provided for trial by jury--once in the Constitution, and twice

more in the Bill of Rights. In those days, it was part of the definition of
the word "jury" that its members could judge the law as well as the
evidence, and the judge would often remind them of this power.
For example, if jurors found the law to be unjust or misapplied, or
that the defendant's rights had been violated in
bringing him or her to trial, they would acquit for those reasons,
despite good evidence.
In addition to veto power, our common law legal traditions also

provide that if a jury decides to acquit, its decision is final. A verdict
of "not guilty" cannot be overturned, nor can the judge harass the
jurors for voting for acquittal, or punish them for voting their
consciences, even after making them swear to follow the law as
given by the judge! And jurors may be asked, but cannot be
obliged, to explain their verdicts.
These principles were subject to contention for centuries in England

and the British Empire as citizen jurors fought to assert their rights
against the power interests of the crown.
In 1670, William Penn was arrested in London for preaching a

Quaker sermon, which broke a law establishing the Church of
England as the only legal church. His jurors, led by Edward Bushell,
refused to convict him, despite being held for days without food,
water, tobacco or toilet facilities -- and then fined. The most defiant
four of them refused to pay the fine and were then put in prison for
nine weeks.

Page 116
The highest court of England, upon releasing them, both
acknowledged and established that trial jurors could not be
punished for their verdicts. Recognition of our freedoms of religion,
peaceable assembly and speech thus all trace to the exercise of
jury power, wielded by a jury unintimidated by government judges.
In colonial America, the sedition trial of John Peter Zenger

established another landmark case. Zenger, a publisher, was
arrested for printing news critical of the Royal Governor of New York
Colony and his cronies, accusing them of corruption. His
accusations were all true, but the court informed his jury that under
the law, "...truth is no defense".
"Philadelphia lawyer" Andrew Hamilton then told the jurors the story
of William Penn, and argued that as judges of the merits of the law,
they should not in good conscience convict Zenger of violating
such a bad law. The jurors agreed. Zenger was acquitted in about
fifteen minutes, and his case spawned recognition of our right to a
free press.
Cases like these therefore were part of the political heritage of the
Founders, which may explain why they so appreciated jury power.
John Adams said it so well in 1771 that the Fully Informed Jury
Association (FIJA) put his words on a coffee mug: "It is not only...[the
juror's] right, but his duty... to find the verdict according to his own
best understanding, judgment, and conscience, though in direct
opposition to the direction of the court."
First U.S. Supreme Court Chief Justice John Jay, writing in Georgia v.
Brailsford, 1794, concluded: "The jury has the right to judge both the
law as well as the fact in controversy".
President Thomas Jefferson in 1789 told Thomas Paine: "I consider

trial by jury as the only anchor yet devised by man, by which a
government can be held to the principles of its constitution."
And Noah Webster, who wrote his original 1828 dictionary in order to
preserve the integrity of the language of the Constitution, defined
"petty jury" as "...consisting usually of twelve men [who]...attend
courts to decide both the law and the fact in criminal prosecutions".
A detailed historical analysis of jury veto power, also called jury

nullification of law, appeared in the Yale Law Review in 1964. It held
that "The right of the jury to decide questions of law was widely
recognized in the colonies. In 1771, John Adams stated
unequivocally that a juror should ignore a judge's instruction on the
law if it violates fundamental principles: There is much evidence of
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the general acceptance of this principle in the period immediately
after the Constitution was adopted."
However, during the next century, judges began chipping away at

this vital and fundamental right of free citizens, thereby transferring
citizen power to themselves. The biggest "chip" or usurpation took
place in 1895, when in Sparf and Hansen v. U.S., a bitterly split
decision by our Supreme Court held that failure of the judge to
remind the jurors of their powers was not a basis for mistrial or
appeal. That was the green light for trial judges to go mum on the
topic, and
they did.
That is why very few lawyers or law professors, only some judges, and
practically no school teachers know about jury veto power: it's "not
part of the curriculum". Few history books give juries the credit
they're due -- for stopping the Salem witch trials, for overturning
slavery in state after state before the Civil War, and for ending
Prohibition -- all by refusing to convict because they thought the law
itself was wrong.
These days, trial by jury often doesn't accomplish all that it should.
And the usurpation continues: trial judges now falsely tell jurors that
their only job is to decide if the "facts" are sufficient to convict, and
that if so, they "should" or "must" convict. Defense attorneys can
face contempt in the face of court charges if they urge jurors to
acquit if they think the law is unconstitutional or unjust. And self-
defenders are usually stopped and rebuked if they even mention
their motives, or why they disagree with the law, to the jury.
Yet to this day, trial jurors retain the right to veto, or "nullify" bad laws,
though they are rarely told this by the courts. Prosecutors and judges
try to exclude people from serving on juries who admit knowing they
can judge the law, or who have doubts about the justice of the law.
This destroys the protections jurors were supposed to be able to
invoke on behalf of fellow citizens against unjust prosecutions: how
can our right to a trial by an impartial jury be met if those with any
qualms about the law are excluded from serving?
The fact is, it cannot. Jury selection has degenerated into a jury-
stacking contest between the attorneys and judge involved. And
then, if those who survive the selection process bring in a verdict
that the community does not like, who gets the blame?
Worse, after enough verdicts have disappointed or angered

enough people, the politicians move in for the kill, arguing that the
"jury system needs reform". By that they mean stripping even more
power from the jury, using juries in fewer and fewer kinds of cases,
Page 118
allowing verdicts to be reached by a super-majority instead of a
unanimous vote, replacing ordinary citizens with government-
licensed professional jurors, etc.
Beware! All such reforms will lead only to a still more powerful
government, and a less powerful citizenry. Justice would come to
mean whatever the government says it means, and the people
would be left with no peaceful method of controlling government
tyranny.
Quotations and Comments on Fully Informed Juries
HYPERLINK "http://www.levellers.org/jrp/orig/jrp.jurquotes.htm" \t "_blank"

http://www.levellers.org/jrp/orig/jrp.jurquotes.htm
THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS
An Essay On Trial By Jury By Lysander Spooner (1852)
HYPERLINK "http://www.lawcasella.com/spooner/TrialByJury.htm" \t
"_blank" http://www.lawcasella.com/spooner/TrialByJury.htm
END QUOTE 15-10-2005 EMAIL

(b) Anytime a judge/magistrate or other judicial officer “dismiss” charges regardless
that the accused has pleaded “GUILTY” then this is in fact
“NULLIFICATION”, as much as where a judge/magistrate or other judicial
officer dismissed a charge regardless where the evidence may indicate the accused
did commit an offend against the relevant legislative provision. While the
Director of Public Prosecution (the Respondent) may be unaware of the legal
history of “NULLIFICATION”, as much as I was until Mr. G. H. Schorel-
Hlavka did give me information about it as he had published in his books, it ought
not to lead to that I am denied JUSTICE, by having been convicted by a jury who
may have “NULLIFIED” the relevant legislative provision had it been made
aware that this was within their powers to do so. In particular in regard of other
issues of appeal the Appellant does take the position that the jury was denied to be
a “fully informed jury”. This also where the trial judge refused the witness Mr. G.
H. Schorel-Hlavka to give certain evidence about Section 21 and its legal history

Page 119
and that it in fact did not apply to a group of people, as I was at the time being
part of the “Blackshirts”, as set out further below.
(c) That for the record, Mr. G. H. Schorel-Hlavka previously was called for duty
service at the County court in Melbourne, and upon having been shown a video
clip as to the rights of a Jury, he then did immediately contact the courts
coordinator about there being no information about “NULLIFICATION” and so
“JURY NULLIFICATION”. I understand that Mr. G. H. Schorel-Hlavka was
advised that this is up to the trial judge to advise the jury about. I understand that
Mr. G. H. Schorel-Hlavka subsequently then formally wrote to the Chief Justice
of the County Court as to express his concerns about the failure of a jury being
appropriately advised about their right of “NULLIFICATION”. As such, had the
court taken appropriate action having had both the oral and subsequent written
complaint from Mr. G. H. Schorel-Hlavka, then the Court may have avoided this
omission of proper instructions and information to the jury to have avoided.
Hereby I quote part of the 1-7-2003 correspondence of Mr. G. H. Schorel-Hlavka to
Premier Steve Bracks;
When called for duty service, I noticed that the jury is NOT advised of their
right to having the option of JURY NULLIFICATION, and as such, every
conviction by a jury could be overturned upon the ground that the jury had not
been appropriately instructed as to their rights. Albeit I did make a complaint ,
in person, to the County court at the time of my attendance for jury service, I
was told that it was for the judge to do so. Yet, we were shown a video that
purported to show what a jury was about, but it concealed the fact of the right
of JURY NULLIFICATION.
Regardless if the DEPARTMENT OF PUBLIC PROSECUTIONS (the
Respondent) or the trial judge may have been unaware of the right of a jury to
NULLIFY legislative provisions, what is relevant is that Mr. G. H. Schorel-
Hlavka more then a year prior to my trial did clearly bring the matter to the
attention of the Premier of Victoria Mr Steve Bracks and as such had
appropriate action been taken then I would not/may not have suffered a denial of a
“fully informed jury”
End Quote OUTLINE OF APPLICANT’S SUBMISSIONS
END QUOTE OUTLINE OF APPELLANT’S SUBMISSIONS
The County Court of Victoria is clearly a State Court and its legal processes cannot be interfered
with by the Commonwealth of Australia, however, for the DE NOVO hearing the court must
Page 120
follow the doctrine of the Framers of the Constitution and the issue of NULLIFICATION
therefore is to be considered. It is not and cannot be bound by the errors in judgment by the
Supreme Court of Victoria in the aforementioned judgment.
The Court first of all referred to “the applicant called legal nullification”. The applicant in fact
at no time used the term “legal nullification” and it ought to be a serious matter that the Court
misstate in its reasons of judgment what was stated by the applicant.
Further, the Court judgment also refers to;
by refusing to convict persons of proceedings after civil proceedings in the same subject
matter
The wording
after civil proceedings in the same subject matter
do not at all appear in this context at all in the applicants submission and rather appears to be
something fabricated by the Court itself. It is a serious issue where a Court does so and by this
give a total different meaning to what was submitted.
Also, when the judgment refers to King C.J statement;
“Sometimes juries apply in favour of an accused what might be described as an innate

sense of fairness and justice in place of the strict principles of law. Sometimes it appears to
a jury that although a number of counts have been alleged against an accused person and
have been technically proved, justice is sufficiently met by convicting him of less than the
full number.”
The principle of nullification is clearly shown, even if it were as the Court seems to imply to
mere a few charges. However it is more clearer that the quoted part is to be separated in;
“Sometimes juries apply in favour of an accused what might be described as an innate

sense of fairness and justice in place of the strict principles of law.
And
Sometimes it appears to a jury that although a number of counts have been alleged against
an accused person and have been technically proved, justice is sufficiently met by
convicting him of less than the full number.”
By this there are two separate statement and the first one clearly embodies the
NULLIFICATION principle in total to all or any charges!
For the Country Court of Victoria to even contemplate any DE NOVO or other kind of hearing
involving charges of breach of commonwealth law, then the ruling of the Supreme Court of
Victoria in the said Abbott case cannot influence a bit the Nullification principle, in that the
Constitution and so any laws enacted under the Constitution are and remain subject to the
nullification rule.
Therefore, there is yet another constitutional based objection that the County Court of Victoria
exercising Federal jurisdiction then is obligated to adhere to the principles embodied in the
constitution, this includes NULLIFICATION.
NULLIFICATION can be applied by a judge and/or jury.
Page 121
What also is relevant to consider is that if the principle of NULLIFICATION is accepted to be

applicable in regard of enforcement of Commonwealth law, albeit there is no duty of it to be
applied by a judge and/or jury, then in that regard the withholding of the details to a jury that
they are entitled to apply such principle of NULLIFICATION itself would deny any Defendant
a FAIR and PROPER trial.
If it is to be accepted that a judge and/or jury can in fact apply the legal principle of
NULLIFICATION in regard of Commonwealth law enforcement then could it be deemed
acceptable that somehow the judge and/or jury cannot do the same in regard of State law charges
where in fact the 1670 William Penn ruling related to ordinary law enforcement and was as such
embedded in the Constitution to not just apply to commonwealth law but also to State laws?
We now have to attend to what the Prosecutor in the Abbott case stated;
Quote OUTLINE OF RESPONDENT’S SUBMISSIONS

1.2 In so far as the Appellant complaints (paragraph (1b)) that the trial miscarried because
he was unrepresented and/or the failure of the Learned Sentencing Judge to act on this
fact, it is impossible to respond to this contention in the absence of particulars of
specific failures by his Honour to protect the Applicant’s “rights”.
End Quote OUTLINE OF RESPONDENT’S SUBMISSIONS
Despite that the King C.J. judgment in R. v. Kirkman (1987) 44 S.A.S.R. 591 at 593 in itself
clearly implied NULLIFICATION principle by stating;
Sometimes juries apply in favour of an accused what might be described as an innate sense
of fairness and justice in place of the strict principles of law.
The Prosecutor in that case seemed to be unaware of this.
When one have lawyers engaged in their daily job of litigating in Court and they do not even
understand and/or comprehend what is applicable then one may have serious concerns as to the
legal processes applied, in particularly where it concerns unrepresented litigants who generally
lack any knowledge of legal principles applicable.
There is no need for me to further expose the errors in this particular Supreme Court of Victoria
judgment in the Abbott case, albeit I consider it was riddled with errors.
The problem being that the County court of Victoria may then seek to rely upon this kind of
judgment as being a judgment of a superior Court, even so it is not in that aspect as it was
handed down by the Supreme Court of Victoria sitting as a “Supreme Court of Victoria” and
not as a “Supreme Court of Victoria exercising federal jurisdiction”! Judgment that at times
might be justified under Victorian laws may not be if federal jurisdiction is invoked and by this
legal principles may be involved that would have a dramatic change in how the law is applied
and enforce.
QUOTE R v Bonat [2004] NSWCCA 240

The law relating to ground 1
MacKenzie (1996) 190 CLR 348
Page 122
51 The seminal authority relating to inconsistent verdicts is the joint judgment of Gaudron,
Gummow and Kirby JJ in this case. The following passage (366-368) has been adopted and
applied on many occasions.
From a review of the cases, a number of general propositions can be stated:
1. A distinction must be drawn between cases of legal or technical inconsistency and cases
of suggested factual inconsistency. The former will generally be easier to resolve. On the
face of the court’s record there will be two verdicts which, in law, cannot stand
together…..
2. Suggestions of factual inconsistency have arisen both as between different verdicts
affecting the same accused and different verdicts affecting co-accused or persons tried
separately in relation to connected events…..
3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon
different counts of the originating process in a criminal trial, the test is one of logic and
reasonableness.
A judgment of Devlin J in R v Stone is often cited as expressing the test:
“He must satisfy the court that the two verdicts cannot stand together, meaning thereby
that no reasonable jury who had applied their mind properly to the facts in the case could
have
arrived at the conclusion, and once one assumes that they are an unreasonable jury, or
they
could not have reasonably come to the conclusion, then the convictions cannot stand.”
4. Nevertheless, the respect for the function which the law assigns to juries (and the
general satisfaction with their performance) have led courts to express repeatedly, in the
context both of criminal and civil trials, reluctance to accept a submission that verdicts are
inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate
court may reconcile the verdicts, allowing it to conclude that the jury performed their
functions as required, that conclusion will generally be accepted. If there is some evidence
to support the verdict said to be inconsistent, it is not the role of the appellate court, upon
this ground, to substitute its opinion of the facts for one which was open to the jury. In a
criminal appeal, the view may be taken that the jury simply followed the judge’s instruction
to consider separately the case presented by the prosecution in respect of each count and
to apply to each count the requirement that all of the ingredients must be proved beyond
reasonable doubt. Alternatively, the appellate court may conclude that the jury took
a “merciful” view of the facts upon one count: a function which has always been open to,
and often exercised by, juries. The early history of New South Wales was affected by
English juries which, in the face of clear evidence, declined to find the value of goods
stolen sufficient to attract the punishment of death, thereby affording to the offender the
alternative punishment of transportation. Australian decisions have acknowledged that the
role of the jury continues to be ameliorative in this respect.
In R v Kirkman, in the Supreme Court of South Australia, King CJ (with the concurrence
of Olsson and O’Loughlin JJ) observed:
“[J]uries cannot always be expected to act in accordance with strictly logical
considerations
and in accordance with the strict principles of the law which are explained to them, and
courts, I think, must be very cautious about setting aside verdicts which are adequately
supported by the evidence simply because a judge might find it difficult to reconcile them
with the verdicts which had been reached by the jury with respect to other charges.
Sometimes juries apply in favour of an accused what might be described as their innate
sense of fairness and justice in place of the strict principles of law. Sometimes it appears to
a jury that although a number of counts have been alleged against an accused person, and
have been technically proved, justice is sufficiently met by convicting him of less than the
Page 123
full number. This may not be logically justifiable in the eyes of a judge, but I think it would
be idle to close our eyes to the fact that it is part and parcel of the system of administration
of justice by juries. Appellate courts therefore should not be too ready to jump to the
conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic
with a verdict of not guilty with respect to another count, the jury acted unreasonably in
arriving at the verdict of guilty.”
We agree with these practical and sensible remarks.
END QUOTE R v Bonat [2004] NSWCCA 240
Again;
“[J]uries cannot always be expected to act in accordance with strictly logical
considerations
and in accordance with the strict principles of the law which are explained to them
And
Alternatively, the appellate court may conclude that the jury took
a “merciful” view of the facts upon one count: a function which has always been open to,
and often exercised by, juries. The early history of New South Wales was affected by
English juries which, in the face of clear evidence, declined to find the value of goods
stolen sufficient to attract the punishment of death, thereby affording to the offender the
alternative punishment of transportation.
In my view, how the Supreme Court of Victoria presented its judgment about
“NULLIFICATION” using the Kirkman case is not consistent with what is set out in R. v
Bonat. It also stated;
QUOTE
[T]he court must not disregard or discount either the consideration that the jury is the
body entrusted with the primary responsibility of determining guilt or innocence, or the
consideration that the jury has had the benefit of having seen and heard the witnesses. On
the contrary, the court must pay full regard to those considerations.
END QUOTE
And
QUOTE
27 Wood CJ at CL, who in earlier cases had been of a somewhat different opinion,
reconsidered his views on the topic of inconsistency and came to a conclusion which seems
to me to be in substance the same as that of Spigelman CJ:
“238. Ultimately, the question remains one of fact and degree as to whether the difference
in
verdicts is such that as a matter of logic and reasonableness, bringing to account all of the
factors which I have mentioned, including the practical approach which juries are entitled
to
bring to their task, the conviction should be regarded as unreasonable or incapable of
being
supported upon the evidence.” (emphasis in original)
END QUOTE
The latter statement that the jury might find it unreasonable could include the
NULLIFICATION issue.
Then
QUOTE
Page 124
90 As to the possibility that the jury may have regarded the one conviction as sufficient,
Priestley JA said, at [54]:
54 It does not seem at all plausible that the jury were acting along the lines explained in
Kirkman and approved in MacKenzie; that is, it is very difficult to see how the jury could
have thought that justice would sufficiently be met by convicting the appellant of one only
out of the eleven counts they were considering if they thought he was guilty of more.
91 His Honour went on to say, at [55]:
55 Finally, it seems very difficult to me to understand how a jury which in the
circumstances of this case were not prepared to accept M’s evidence as proving ten out of
eleven charges beyond reasonable doubt could logically or reasonably have decided to
accept her evidence as proving the offence charged in count 11 beyond reasonable doubt.
END QUOTE
The judges never seemed to be aware that NULLIFICATION in fact may have been why juries
in some cases may not convict and do in others. It depends upon the composition of the judges,
as to their views regarding certain incidents that in fact can cause one jury to convict while
another jury if presented with the same evidence were refuse to convict.
In my view, the real test would be to have a pretended trial taking place where, say one hundred
people are participating as juries and later 8 groups of 12 jurors are from this selected for each
group to decide the guilt and innocence of the accused. Leaving some jurors spare in case of
someone has to leave or becomes ill.
Each and every group should have video taped their deliberations, so that afterwards it can be
analysed what caused each jury to come to a GUILTY, NOT GUILTY finding or failing to
come to a verdict. Only by such kind of test could possibly become clear how juries may come to
their verdicts or fail to come to one as ordinary it is confidential what juries deliberate and judges
then merely are assuming something, so to say stabbing in the dark, without having any clue if
this is so.
QUOTE
62 This case seems to me to fall into the category described by Spigelman CJ in par 78 of
his reasons in Markuleski (quoted in par 21 above). I can see nothing of any significance
in the present case to differentiate M’s evidence which the jury accepted beyond
reasonable doubt in regard to count 11 from the evidence which in my opinion the jury did
not accept in regard to the counts on which they acquitted the appellant. Thus, in my view,
in this case the MacKenzie test of logic and reasonableness was not satisfied.
63 On this ground, in my opinion, the conviction of the appellant on count 11 and the
jury’s guilty verdict should be set aside and a verdict and judgment of acquittal entered.
MFA (2002) 193 ALR 184
END QUOTE
In my view, if the jury decides to NULLIFY certain charges but not all then it should not be for
the Court to assume other charges cannot stand.
QUOTE
Summary of legal principles
106 I would summarise the principles laid down by these authorities as follows:
(1) There is no hard and fast rule. It all depends on the circumstances of the case.
(2) A primary consideration, in a case of inconsistent verdicts, is whether there is an acceptable
explanation for differentiation as a matter of logic and reasonableness.
Page 125
(3) A likelihood that the jury has been satisfied of guilt in relation to the verdict or verdicts in
question and has otherwise acquitted the accused because the verdict or verdicts of guilty were
thought to be sufficient to serve the interests of justice should be excluded.
(4) In deciding whether to substitute a verdict or verdicts of acquittal rather than order a new
trial, a likelihood that compromise provides a complete explanation for the inconsistency should
be excluded.
(5) Where there are factors additional to the inconsistency between verdicts, tending to make the
verdict or verdicts in question unreasonable, that weighs in favour of quashing the verdicts in
question and in favour of substituting a verdict or verdicts of acquittal rather than ordering a new
trial.
END QUOTE
Again;
(3) A likelihood that the jury has been satisfied of guilt in relation to the verdict or verdicts
in question and has otherwise acquitted the accused because the verdict or verdicts of
guilty were thought to be sufficient to serve the interests of justice should be excluded.
This is a clear example that “NULLIFICATION” is being applied, just that in the whole Bonat
judgment the term “NULLIFY” or “NULLIFICATION” never was used. And so not
considered.
QUOTE
117 It follows that verdicts of acquittal should be substituted for the convictions.
END QUOTE
In my view, this is a very dangerous kind of decision where a court of appeal because of
inconsistencies in verdicts may all together acquit a person who was found GUILTY on some
charge or charges, but not all.
It put the jury on the spot that if they decide to acquit on some charges and settle on convicting
on one or more other charges then the Court of Appeal could destroy this. I view, this is not what
should be done as to destroy the right of the jury to decide, how it desires to hand down its
verdict.
In my view, the legal principle of NULLIFICATION as set out in the William Penn case
should be adhered to and not be interfered with.
http://msxml.webcrawler.com/info.wbcrwl/search/web/nullification/1/-/1/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-
/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/417/top
QUOTE
1.
Jury Nullification: History, questions and answers about ...
Jury Nullification by Doug Linder (2001). What is jury nullification? Jury
nullification occurs when a jury returns a verdict of "Not Guilty" despite its
...
www.law.umkc.edu/faculty/projects/ftrials/zenger/nullification.html
[Found on Google, Yahoo! Search, MSN Search, Ask.com]
2.
The Avalon Project : President Jackson's Proclamation Regarding ...

Page 126
President Jackson's Proclamation Regarding Nullification, December 10,
1832(1). Whereas a convention, assembled in the State of South Carolina,
...
www.yale.edu/lawweb/avalon/presiden/proclamations/jack01.htm
[Found on Google, Yahoo! Search, Ask.com]
3.
The Avalon Project : South Carolina Ordinance of Nullification ...
South Carolina Ordinance of Nullification, November 24, 1832. An ordinance
to nullify certain acts of the Congress of the United States, purporting to be
...
www.yale.edu/lawweb/avalon/states/sc/ordnull.htm [Found on Google,
Yahoo! Search, Ask.com]
4.
Downloadable Papers
Established site sells papers on Nullification.
Sponsored by: www.the-paper-store.com [Found on Ads by Yahoo!]
5.
Nullification - Wikipedia, the free encyclopedia
Body nullification, the practice of removing body parts. Physical nullification,
a hypothesized process in which results when ordinary mass/energy ...
en.wikipedia.org/wiki/Nullification [Found on Google, Yahoo! Search]
6.
Nullification
Nullification is a constitutional theory that gives an individual state the
right to ... The origins of nullification are found in the Federalist-Republican
...
www.thenagain.info/WebChron/Glossary/Nullif.html [Found on Google,
MSN Search]
7.
Nullification Crisis - Wikipedia, the free encyclopedia
... continued donations keep Wikipedia running! Nullification Crisis. From
Wikipedia, the free encyclopedia ... The Nullification Crisis was a sectional
crisis during the presidency of ...
en.wikipedia.org/wiki/Nullification_Crisis [Found on Yahoo! Search, MSN
Search]
8.
Jury nullification - Wikipedia, the free encyclopedia
The power of jury nullification derives from an inherent quality of most
modern ... Some argue that jury nullification could be used to nullify
important ...
en.wikipedia.org/wiki/Jury_nullification [Found on Google, MSN Search]
9.
nullification
nullification, in US history, a doctrine expounded by the advocates of
extreme ... A closely reasoned reinforcement to the doctrine of nullification
was set ...
www.infoplease.com/ce6/history/A0836166.html [Found on Google,
Yahoo! Search]
10.
Nullification Proclamation: Primary Documents of American History
(Virtual Program...

Page 127
Nullification Proclamation: Primary Documents of American History (Virtual
Services and Programs, Digital Reference Team, Library of Congress) ...
Tariff of 1833 was eventually accepted by ...
www.loc.gov/rr/program/bib/ourdocs/Nullification.html [Found on
Yahoo! Search, MSN Search]
11.
Jury Nullification
AN ONLINE RESOURCE GUIDE. Jury Nullification. Juries are charged today
with the responsibility of reaching a verdict based on the facts of a case
within the law as it is explained by the tr...
www.crfc.org/americanjury/nullification.html [Found on Yahoo! Search,
MSN Search]
12.
nullification. The Columbia Encyclopedia, Sixth Edition. 2001-05
nullification. The Columbia Encyclopedia, Sixth Edition. 2001-05.
www.bartleby.com/65/nu/nullific.html [Found on Google, Yahoo! Search]
13.
Lalor, Cyclopaedia of Political Science, V.2, Entry 379,
NULLIFICATION: Library of...
Lalor, John J., Cyclopaedia of Political Science. Complete book online. ...
NULLIFICATION. NULLIFICATION (IN U. S. HISTORY), the formal
suspension by a state government of the operation of ...
www.econlib.org/library/YPDBooks/Lalor/llCy770.html [Found on Yahoo!
Search, MSN Search]
14.
Jury Nullification
JURY NULLIFICATION. by Julian Heicklen. Juries originally were introduced
into England to protect the individual from the tyranny of government. ...
Jury nullification was introduced into A...
www.personal.psu.edu/faculty/j/p/jph13/JuryNullification.html [Found
on Yahoo! Search, MSN Search]
15.
From Revolution to Reconstruction: Outlines: American History
(1994): Chapter Five...
USA-project, outlines-area, An outline of American History by the United
States Information Agency ... citizens endorsed the states' rights principle of
"nullification," which was enunciate...
odur.let.rug.nl/~usa/H/1994/ch5_p5.htm [Found on Yahoo! Search]
16.
North Park University
A web chronology project sponsored by North Park University featuring
regional timelines spanning from 12,000 BC to present day.
campus.northpark.edu/history/WebChron/ [Found on Ask.com]
17.
Nullification Crisis
The biggest crisis of Jackson's Presidency, started by South Carolina
opposition to the tariffs leveled in 1828 and 1832 by Jackson supporters.
www.sparknotes.com/biography/jackson/terms/event_C.21.html
[Found on Ask.com]
18.
nullification -- Encyclopædia Britannica

Page 128
nullification in U.S. history, doctrine upholding the right of a state to
declare null and void within its boundaries an act of the federal government.
Thomas Jefferson and James Madison ad...
www.britannica.com/eb/article-9056484 [Found on Yahoo! Search]
19.
Digital History
Digital History enhances history teaching and research through primary
sources, an online textbook, extensive reference resources, and interactive
materials. ... Jacksonian Democracy. Nulli...
www.digitalhistory.uh.edu/database/article_display.cfm?HHID=639
[Found on Yahoo! Search]
20.
Jury Nullification
Why you should know what it is. Article by Russ Emal.
www.greenmac.com/eagle/ISSUES/ISSUE23-
9/07JuryNullification.html [Found on Google]
END QUOTE
Yahoo SEARCH result in regard of “NULLIFICATION” returned 552,000 results, such as;
1. Nullification - Wikipedia, the free encyclopedia
Nullification. From Wikipedia, the free encyclopedia. The process of nullification may
refer to: The legal theory that a U.S. State has the right to nullify, or invalidate, any federal
law which that state has deemed unconstitutional.
en.wikipedia.org/wiki/Nullification - 11k - Cached - More pages from this site - Save
2. Nullification Crisis - Wikipedia, the free encyclopedia
... continued donations keep Wikipedia running! Nullification Crisis. From Wikipedia, the
free encyclopedia ... The Nullification Crisis was a sectional crisis during the presidency of
...
en.wikipedia.org/wiki/Nullification_Crisis - 22k - Cached - More pages from this site - Save
3. From Revolution to Reconstruction: Outlines: American History (1994): Chapter Five:

Nullification Crisis (5/11)
USA-project, outlines-area, An outline of American History by the United States Information

Agency ... citizens endorsed the states' rights principle of "nullification," which was
enunciated by John C ... by adopting the Ordinance of Nullification, which declared both
the tariffs of ...
odur.let.rug.nl/~usa/H/1994/ch5_p5.htm - 6k - Cached - More pages from this site - Save
4. ISIL -- A History of Jury Nullification

Page 129
This essay is widely-circulated in pamphlet form by activists in the International Society for
Individual Liberty. ... A HISTORY OF JURY NULLIFICATION. "If a juror accepts as the law
that which the judge states ... "Jury nullification of law," as it is sometimes called, is a ...
www.isil.org/resources/lit/history-jury-null.html - 22k - Cached - More pages from this site -

Save
http://www.isil.org/resources/lit/history-jury-null.html
QUOTE
A HISTORY OF JURY NULLIFICATION
"If a juror accepts as the law that which the judge states, then that juror has accepted
the exercise of absolute authority of a government employee and has surrendered a
power and right that once was the citizen's safeguard of liberty."
(1788) (2 Elliots Debates, 94, Bancroft, History of the Constitution, 267)
"Jury nullification of law," as it is sometimes called, is a traditional right that was rigorously defended by
America's Founding Fathers. Those great men, Patriots all, intended the jury to serve as a final safeguard
– a test that laws must pass before gaining sufficient popular authority for enforcement. Thus the
Constitution provides five separate tribunals with veto power – representatives, senate, executive, judges
– and finally juries. Each enactment of law must pass all these hurdles before it gains the authority to
punish those who may choose to violate it.
Thomas Jefferson said, "I consider trial by jury as the only anchor yet imagined by man, by which a
government can be held to the principles of its constitution."
From Magna Carta To Edward Bushell
The power of the jury to judge the justice of the law and to hold laws invalid by a finding of "not guilty"
for any law a juror felt was unjust or oppressive, dates back to the Magna Carta, in 1215. At the time of
the Magna Carta, King John could pass any law any time he pleased. Judges and executive officers,
appointed and removed at his whim, were little more than servants of the King. The oppression became
so great that the nation rose up against the ruler, and the barons of England compelled their king to
pledge that he would not punish a freeman for a violation of the law without the consent of his peers.
King John violently protested when the Magna Carta was shown to him, and with a solemn oath
protested, that "he would never grant such liberties as would make himself a slave." Afterwards, fearing
seizure of his castle and the loss of his throne, he reluctantly signed the Magna Carta – thus placing the
liberties of the people in their own safe-keeping. Echard's History of England, p. 106-107 [Spooner])
The Magna Carta was a great step forward in the control of tyrannical leaders. But its sole means of
enforcement, the jury, was often met with hostility. By 1664 English juries were routinely being fined for
acquitting defendants. Such was the case in the 1670 political trial of William Penn, who was charged with
preaching Quakerism to an unlawful assembly. Four of the twelve jurors voted to acquit – and continued
to acquit even after being imprisoned and starved for four days. Under such duress, most jurors paid the
fines. However, one juror, Edward Bushell, refused to pay and brought his case before the Court of
Common Pleas. As a result, Chief Justice Vaughan issued an historically-important ruling: that jurors
could not be punished for their verdicts. Bushell's Case (1670) was one of the most important
developments in the common-law history of the jury.
Jurors continued to exercise their power of nullification in 18th-century England in the trials of
defendants charged with sedition, and in mitigating death-penalty cases. In the American Colonies, jurors
refused to enforce forfeitures under the English Navigation Acts. The Colonial jurors' veto power
Page 130
prompted England to extend the jurisdiction of the non-jury admiralty courts in America beyond their
ancient limits of sea-going vessels. Depriving "the defendant of the right to be tried by a jury which was
almost certain not to convict him [became] . . . the most effective, and therefore most disliked" of all the
methods used to enforce the acts of trade. (Holdsworth, A History of English Law (1938) XI, 110)
John Hancock, "the wealthy Massachusetts patriot and smuggler who as President of the Continental
Congress affixed his familiar bold signature to the Declaration of Independence" was prosecuted via this
admiralty jurisdiction in 1768 and fined £9,000 – triple the value of the goods aboard his sloop "Liberty"
which had been previously forfeited. (U.S. v One 1976 Mercedes Benz 280S 618 F2d 453 [1980])
John Adams eloquently argued the case, chastising Parliament for depriving Americans of their right to
trial by jury. Adams later said of the juror, "it is not only his right, but his duty – to find the verdict
according to his own best understanding, judgment, and conscience, though in direct opposition to the
direction of the court." (Yale Law Journal, 1964:173)
Earlier in America, jury nullification decided the celebrated seditious libel trial of John Peter Zenger.
(Zenger's Case, 1735) His newspaper had openly criticized the royal governor of New York. The current
law made it a crime to publish any statement (true or false) criticizing public officials, laws or the
government in general. The jury was only to decide if the material in question had been published; the
judge was to decide if the material was in violation of the statute.
Zenger's defense asked the jury to make use of their own consciences and, even though the judge
ruled that the truth was no defense, they acquitted him. The jury's nullification in this case is praised in
history textbooks as a hallmark of freedom of the press in the United States.
At the time of the American Revolution, the jury was known to have the power to be the judge of both
law and fact. In a case involving the civil forfeiture of private property by the state of Georgia, first
Supreme Court Justice John Jay, instructed jurors that the jury has "a right to determine the law as well
as the fact in controversy." (Georgia vs. Brailsford, 1794:4)
The Fugitive Slave Law
Until the middle of the 1800s, federal and state judges often instructed the juries they had the right to
disregard the court's view of the law. (Barkan, citing 52 Harvard Law Review, 682-616) Then, when
northern jurors began to refuse to convict abolitionists who had violated the 1850 Fugitive Slave Law,
judges began questioning jurors to find out if they were prejudiced against the government's position and
dismissed any who were. In 1852 Lysander Spooner, a Massachusetts lawyer and champion of individual
liberties, complained "that courts have repeatedly questioned jurors to ascertain whether they were
prejudiced against the government. ... The reason of this ... was that 'the Fugitive Slave Law, so called'
was so obnoxious to a large portion of the people, as to render a conviction under it hopeless (if the jurors
were taken indiscriminately from among the people)." Modern treatments of abolitionism praise these jury-
nullification verdicts for the role they played in helping the anti-slavery cause – rather than condemning
them for "undermining" the rule of law and the uniformity of justice.
Labor Versus Big Business
In 1895, the Supreme Court, under pressure from large corporations, rendered in a bitter split decision
that courts no longer had to inform juries they had the power to veto an unjust law. The giant corporations
had lost numerous trials against labor leaders trying to organize unions. Striking was against the law at
that time. "Juries also ruled against corporations in damage suits and other cases, prompting influential
members of the American Bar Association to fear that jurors were becoming too hostile to their clients and
too sympathetic to the poor. As the American Law Review wrote in 1892, jurors had 'developed agrarian
tendencies of an alarming character.'..." (Barkan, Jury Nullification in Political Trials, 1983)[emphasis
added]
Prohibition

Page 131
Despite the courts refusal to inform jurors of their historical veto power, jury nullification in liquor-law
trials was a major contributing factor in ending alcohol prohibition. (Today in Kentucky, jurors often refuse
to convict under the marijuana-prohibition laws).
As time went on fewer incidences of jury-veto actions occurred as the courts began concealing jurors'
rights from American citizens and falsely instructing them that they may consider only the facts as
admitted by the court. Researchers in 1966 found that jury nullification occurred only 8.8 percent of the
time between 1954 and 1958, and suggested that "one reason why the jury exercises its very real power
[to nullify] so sparingly is because it is officially told it has none." (California's charge to the jury in criminal
cases is typical: "It becomes my duty as judge to instruct you concerning the law applicable to this case,
and it is your duty as jurors to follow the law as I shall state it to you . . . You are to be governed solely by
the evidence introduced in this trial as the law as stated to you by me.") Today, no officer of the court is
allowed to tell the jury of their veto power.
The Vietnam War
Counsels for Vietnam War protest defendants tried to introduce moral and political arguments on the
war to gain jury sympathy. Most often the jury was given instructions such as "You must apply the law that
I lay down." (Conspiracy trial of Benjamin Spock et al., 1969) Jurors receiving such instructions usually
convicted, while feeling the pang of conscience expressed by the typical responses from Spock trial
jurors: "I had great difficulty sleeping that night – I detest the Vietnam War. ... But it was so clearly put by
the judge." And "I'm convinced the Vietnam War is no good. But we've got a Constitution to uphold. ...
Technically speaking, they were guilty according to the judge's charge." But in the few anti-Vietnam war
trials where juries were allowed to hear of their power, they acquitted.
Jury acquittals in the colonial, abolitionist and post-Civil War eras helped advance political activist
causes and restrained government efforts at social control. Legal scholar Steven Barkan suggests that
the refusal of judges during the Vietnam War to inform juries of their power to disregard the law frustrated
the anti-war goals.
As Lysander Spooner pointed out regarding the questioning of jurors to eliminate those who would
bring in a verdict according to conscience (a practice effectively accomplished today through the juror's
oaths and voir dire) "The only principle upon which these questions are asked, is this – that no man shall
be allowed to serve as juror unless he be ready to enforce any enactment of the government, however
cruel or tyrannical it may be. ... A jury like that is palpably nothing but a mere tool of oppression in the
hands of the government."
Those whose interests lie in maintaining government control of social behavior may argue that the
Constitution provides the necessary protection of liberties. But legislative bodies will always confirm the
constitutionality of their own acts. And the oaths sworn to uphold the Constitution by judges and public
servants have historically been only as good as the power to enforce such oaths. Nor are free elections
adequate to prevent tyranny without jury veto power, because elections come only periodically and give
no guarantee of repealing the damage done. Additionally, the second body of legislators are likely to be
as bad as the first, since they are exposed to the same temptations and use the same tactics to gain
office.
Protecting Minorities From The Majority
Further, the jury's veto power protects minorities from "the body of the people, operating by the
majority against the minority." (James Madison, June 8, 1789) Twelve people taken randomly from the
population will represent both friends and opponents of the party in power. With fully-informed juries, the
government cannot exercise its powers over the people without the consent of the people. Trial by jury is
trial by the people. When juries are not allowed to judge law, it becomes trial by the government. "In short,
if the jury have no right to judge of the justice of a law of the government, they plainly can do nothing to
protect the people against the oppressions of government; for there are no oppressions which the
government may not authorize by law." (Lysander Spooner,"Jury Power" by L. & J. Osburn)
******************************************
END QUOTE
Page 132
I view, that the above set out ought to be clear enough for any judicial officer that the power of
NULLIFICATION is with both any judicial officer and with juries. No one can force either to
use NULLIFICATION and neither can neither be denied to use it. However, it should not be
concealed from judicial officers and/or the jury that they have the right to apply
NULLIFICATION, and this the Supreme Court of Victoria in the Abbott case clearly erred in.
The issue of ESTOPPEL then follows also;

The issue of ESTOPPEL then follows also;
Estoppel is an equitable doctrine proposing that any person who asks the courts to enforce
a legal remedy should have a clear conscience.
As further in this ADDRESS TO THE COURT set out, I did on 20 October 2001 notify the
Australian electoral commission, as with others, that the writs were invalid and upon this the
Australian electoral commissioner then in their response dated 25 October 2001 indicated that I
could challenge matters in the Federal Court of Australia. This occurred on 2 November 2001
before Finkelstein J, and subsequently on 7 November 2001 before Marshall J who then faced
with an OBJECTION TO LEGAL JURISDICTION by the Australian electoral Commission
decided there was no LEGAL JURISDICTION. This was then appealed by me, but the High
Court of Australia refused to allow the appeal to be heard in 2003.
What is relevant is that, so to say, the Australian electoral commission having indicated to me
that I could litigate before the Federal Court of Australia, and I then did so, clearly then had no
clear conscience as after all I did what they indicated was then the proper course of action and
while the appeal was outstanding I could not be expected to then act contrary to my outstanding
appeal.
The Australian Electoral Commission by indicating in their 25 October 2001 correspondence that
the appropriate manner was to pursue matters before the Federal Court of Australia in my view
was not only by this having an ESTOPPEL that it could not then enforce section 245 of the
Commonwealth Electoral Act 1918 against me in any manner to pursue charges, but also ought
to have been deemed to have had an ESTOPPEL as to raise any issue of OBJECTION TO
LEGAL JURISDICTION before Marshall J unless it had explained to the Court that in fact I
had acted upon the advise of the Australian electoral commissioner’s lawyers this to be the
appropriate way to pursue.
If the Federal Court of Australia had no legal jurisdiction then nothing could give the Federal
Court of Australia legal jurisdiction and for this nothing could be gained to argue against that,
however, what occurred was that the Federal Court of Australia did in fact have legal jurisdiction
but, so to say, Marshall J was deceived in to making a ruling it did not have legal jurisdiction and
it was concealed by the Australian Electoral Commission to Marshall J that they themselves had
recommended this course of litigation.
It is critical to FAIR and PROPER elections being held and be deemed held that the conduct of
the Australian Electoral Commissioner and so his lawyers are beyond reproach, and not are to
deceive objectors and judges as to railroad objections made.
While I understand that this is a common conduct by the Australian Electoral Commission to
pursue I view this Court cannot tolerate to become part of this elaborate deception and abuse of
powers to deny a FAIR and PROPER election to be held.
When the Australian Electoral Commissioner had his lawyers advising me about the option to
place matters before the Federal Court of Australia, then where I acted upon this it was the
obligation of the Australian electoral commissioner to rectify any deceptive information that had
Page 133
been given to me and ensure that both Marshall J of the Federal Court of Australia as well as
myself had been then provided with details of the proper course that was to be followed.
It cannot now, so to say, come to this Court to pursue enforcement of legislation where it has
itself dirty hands, so to say, to have caused undue problems.
As also extensively in this ADDRESS TO THE COURT having been canvassed the issues of
constitutional based objections were not disposed off by the refusal of Marshall J to hear and
determine matters upon their MERITS, and for this neither so by the High Court of Australia
conduct to refuse to hear matters upon their MERITS.
If there had been no constitutional based objections made by me then perhaps the Australian
Electoral Commission might have again gotten away with the gross deceptive conduct, but
because I made constitutional based objections which caused the writs from onset to be ULTRA
VIRES, it would have therefore been in the best interest of the general community had the
Australian Electoral Commission explained to His Honour Marshall J as to their own advise to
me to institute proceedings in the Federal Court of Australia and they are now correcting this
advise and substituting it with appropriate advise how this is to be done.
Estoppel in English law is defined as: "a principle of justice and of equity.
And
It comes to this: when a man, by his words or conduct, has led another to believe in a
particular state of affairs, he will not be allowed to go back on it when it would be unjust or
inequitable for him to do so." in Moorgate Mercantile v Twitchings [1976] 1 QB 225, CA
at 241 per Lord Denning MR.
Then where I acted on the advise of the Australian Electoral Commissioner’s lawyers advise then
I view they had no right to object to the jurisdiction of the Court without revealing to the Court
their own conduct involved.
The Court then may have taken a complete different approach to the matter and perhaps have
given more consideration if indeed the Court had no legal jurisdiction and not merely was being
used as a legal ploy by the Australian Electoral Commissioner to railroad objections.
The fact that the Commonwealth Director of Public Prosecutions now have the carriage of the
proceedings instituted in regard of charges does not circumvent the fact that the Australian
Electoral Commission misled me and the Court and the Commonwealth Director of Public
Prosecutions have only acted upon the directions of the Australian Electoral Commission and so
it must be taken that they are for this purpose one and the same.
Estoppel in English law is defined as: "a principle of justice and of equity. It comes to this:
when a man, by his words or conduct, has led another to believe in a particular state of
affairs, he will not be allowed to go back on it when it would be unjust or inequitable for
him to do so." in Moorgate Mercantile v Twitchings [1976] 1 QB 225, CA at 241 per Lord
Denning MR.
The definition in American law is similar: "Speaking generally, estoppel is a bar which
precludes a person from denying or asserting anything to the contrary of that which has, in
contemplation of law, been established as the truth, either by the acts of judicial or
legislative officers, or by his own deed, acts, or representations, either express or implied."
28 Am Jur 2d Estoppel and Waiver § 1

Page 134
http://dictionary.law.com/definition2.asp?selected=665&bold=
estoppel
n. a bar or impediment (obstruction) which precludes a person from asserting a fact or a right or
prevents one from denying a fact. Such a hindrance is due to a person's actions, conduct,
statements, admissions, failure to act or judgment against the person in an identical legal case.
Estoppel includes being barred by false representation or concealment (equitable estoppel), failure
to take legal action until the other party is prejudiced by the delay (estoppel by laches), and a court
ruling against the party on the same matter in a different case (collateral estoppel).
See also: collateral estoppel equitable estoppel estop laches
Place this dictionary on your site
what ought to be considered is that had the Australian electoral commission not deceived me and
neither so the Federal Court of Australia then the entire litigation history could have been
drastically different.
http://www.nolo.com/definition.cfm/term/7F1E56D5-7EC1-4CEB-86B3943F6990FF77
estoppel
(1) A legal principle that prevents a person from asserting or denying something in court
that contradicts what has already been established as the truth.
equitable estoppel
A type of estoppel that bars a person from adopting a position in court that contradicts his
or her past statements or actions when that contradictory stance would be unfair to another
person who relied on the original position.
estoppel by silence
A type of estoppel that prevents a person from asserting something when she had both the
duty and the opportunity to speak up earlier, and her silence put another person at a
disadvantage.
http://en.wikipedia.org/wiki/Duty_of_care
Duty of care
From Wikipedia, the free encyclopedia
For the English law, see duty of care in English law.
In tort law, a duty of care is a legal obligation imposed on an individual requiring that they
exercise a reasonable standard of care while performing any acts that could forseeably
harm others. For an action in negligence, there must be an identified duty of care in law.
Duty of care may be considered a formalisation of the implicit responsibilities held by an
individual towards another individual within society. It is not a requirement that a duty of
care be defined by law, but it will often evolve through the jurisprudence of common law.
Individuals who are considered to be professionals within society are often held to a higher
standard of care than those who are not. Engineers and doctors will be held to reasonable
standards for members of their profession, rather than those of the general public in cases
related to their fields.
Breach of duty of care, if resulting in an injury, may subject an individual to liability in
tort. Duty of care is an important prerequisite in the tort of negligence, as the duty of care
must exist and must have been breached for the tort to occur.
Again
Page 135
Duty of care may be considered a formalisation of the implicit responsibilities held by an
individual towards another individual within society.
In my view the Australian Electoral Commissioner has a “DUTY OF CARE” one being to
ensure that when an objection is made regarding electoral matters then he (so his lawyers) do not
deceive the objector as to the appropriate manner to proceed.
The function of the Australian Electoral Commissioner is to ensure that FAIR and PROPER
elections are held and by deceiving the court and the objector directly contravenes the DUTY
OF CARE the Australian Electoral Commissioner has in that regard.
It also ought to be considered that if in fact Marshall J erred in his decision in view that the Court
of Disputed Returns has no legal jurisdiction to deal with a case such as I had filed in the Federal
Court of Australia, and so also subsequently to the Registrar of the High Court of Australia
having advised on 30 October 2001 that the Federal Court of Australia and not the High Court of
Australia was the proper venue to file the case in view of the amendment to Section 383 of the
Commonwealth Electoral Act 1918 now referring to the Federal Court of Australia, then with
the judgment of Marshall J in effect it means that there is no Court at all that can hear and
determine the objections on constitutional ground I had placed before the Federal Court of
Australia and this in itself is not only a legal absurdity but undermined the foundation of
democracy as effectively there is no avenue then to challenge in a legal manner defective writs,
proclamation, etc.
In my view, such an absurdity cannot be tolerated to exist and I view requires a ROYAL
COMMISSION to have this fully investigated, after all with the legislation, part legislation,
proclamation and/or writ(s) subject to constitutional based objections now being ULTRA
VIRES ever since the constitutional based objections were made in itself ought top underline
that this kind of legal absurdity cannot be tolerated and should be appropriately investigated.
In my view, the fact that the elections were ULTRA VIRES and without legal force also
because of the constitutional based objections never having been disposed off in an appropriate
manner by the High Court of Australia to declare the objected legislation, part legislation,
proclamation and/or writ(s) to be INTRA VIRES or ULTRA VIRES, then unless and until this
is decided it all remains ULTRA VIRES and without legal force and is as such also any
ESTOPPEL against any legal enforcement where they are already ULTRA VIRES.
http://msxml.webcrawler.com/info.wbcrwl/search/web/estoppel/1/-/1/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-
/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/417/top
1.
Estoppel - Wikipedia, the free encyclopedia
Estoppel by representation of fact is known as equitable estoppel in
American law. Equitable estoppel as understood in English law, includes: ...
en.wikipedia.org/wiki/Estoppel [Found on Google, Yahoo! Search, MSN
Search, Ask.com]
2.
Legal Definition of 'Estoppel'
The Legal Term * Estoppel * Defined & Explained. ... Equitable estoppel
prevents one party from taking a different position at trial than she did at an
...
www.lectlaw.com/def/e040.htm [Found on Google, MSN Search, Ask.com]
Page 136
3.
MC Estoppel
MC Estoppel. All day long, I am created. -- Annie Dillard. Saturday, May 20.
OPEN SOUL . . . The Unlimited Mood asks: what do you do to keep your soul
open? ...
chaesq.blogspot.com/ [Found on Google, Ask.com]
4.
estoppel n. a bar or impediment (obstruction) which precludes a ...
Estoppel includes being barred by false representation or concealment
(equitable estoppel), failure to take legal action until the other party is
prejudiced ...
dictionary.law.com/definition2.asp?selected=665&bold= [Found
on Google, Yahoo! Search]
5.
Estoppel?
Brief and Straightforward Guide to Estoppel
Sponsored by: www.WiseGeek.com/ [Found on Ads by Google]
6.
PUNISHMENT AND PROPORTIONALITY: THE ESTOPPEL APPROACH
PUNISHMENT AND PROPORTIONALITY: THE ESTOPPEL APPROACH. N.
Stephan Kinsella* It is easier to commit murder than to justify it. Papinian.
1. I. Introduction. No doubt punishment serves many p...
www.mises.org/journals/jls/12_1/12_1_3.pdf [Found on Yahoo! Search,
Ask.com]
7.
LII: lexicon: promissory estoppel
Promissory Estoppel -- What does it mean? Where does it fit? Promissory
Estoppel. The doctrine allowing recovery on a promise made without
consideration ...
www.law.cornell.edu/lexicon/promissory_estoppel.htm [Found on
Google, MSN Search]
8.
Civil Resource Manual 209 Estoppel
No decision of the Supreme Court holds that equitable estoppel lies against
... The Supreme Court has made it clear that before an estoppel will lie
against ...
www.usdoj.gov/usao/eousa/foia_reading_room/usam/title4/civ00209.
htm [Found on Google, Yahoo! Search]
9.
"Collateral Estoppel" Defined
Definition of "Collateral Estoppel"
www.caught.net/prose/collat.htm [Found on Yahoo! Search, MSN Search]
10.
Estoppel Certificate - Commercial Real Estate
Description of estoppel certificate and how its used in commercial real
estate closing ... The Estoppel Certificate is a very critical and important
document that is used mainly in commerci...
www.realogicinc.com/news/estoppel.htm [Found on Yahoo! Search,
Ask.com]
11.
law.com Law Dictionary

Page 137
Law.com's online Real Life Dictionary of the Law. The easiest-to-read, most
user-friendly guide to legal terms. Use it free! ... estoppel. n. a bar or
impediment (obstruction) which preclud...
dictionary.law.com/default2.asp?selected=665&bold=|||| [Found on
Yahoo! Search]
12.
estoppel - legal definition
Alvin will not be able to deny this fact in subsequent lawsuits against him.
This type of estoppel is most commonly called collateral estoppel. ...
www.nolo.com/definition.cfm/term/7F1E56D5-7EC1-4CEB-
86B3943F6990FF77 [Found on Google]
13.
RECONSIDERING ESTOPPEL: PATENT ADMINISTRATION AND THE
FAILURE OF FESTO R. P
RECONSIDERING ESTOPPEL: PATENT ADMINISTRATION AND. THE FAILURE
OF FESTO. R. P. OLK. W. AGNER. Last Term, in Festo Corp. v. Shoketsu
Kinzoku Kogyo Kabushiki Co., the United States Supreme Co...
www.law.upenn.edu/polk/wagner.festo.pdf [Found on Yahoo! Search]
14.
Estoppel by deed - Wikipedia, the free encyclopedia
Estoppel by deed is a doctrine in the law of real property that arises where
a party conveys title to land that he does not own to a bona fide purchaser ,
and then acquires title to that la...
en.wikipedia.org/wiki/Estoppel_by_deed [Found on MSN Search]
15.
estoppel - legal definition
Search for Products Search Entire Site Search Glossary. estoppel ...
estoppel by deed. A type of estoppel that prevents a person from denying
the truth of anything that ...
www.nolo.com/lawcenter/dictionary/dictionary_listing.cfm/Term/7F1E
56D5-7EC1-4CEB-86B3943F6990FF... [Found on Yahoo! Search]
16.
Estoppel
Estoppel 1. Promissory estoppel a) Background: The rule that
consideration ... v. Arun District Council 1976 3. Notabene a) Estoppel is
primarily
www.peisker.de/ffa/6-Estoppel.htm [Found on Ask.com]
17.
Collateral estoppel - Wikipedia, the free encyclopedia
Collateral estoppel. From Wikipedia, the free encyclopedia. Collateral
estoppel, also sometimes known as issue preclusion, is a common law
estoppel doctrine that prevents a person from reli...
en.wikipedia.org/wiki/Collateral_estoppel [Found on Yahoo! Search]
18.
estoppel legal definition of estoppel. estoppel synonyms by the Free
...
Definition of estoppel in the Ledal Dictionary - by Free online English
dictionary and encyclopedia. What is estoppel? Meaning of estoppel as a
legal term.
legal-dictionary.thefreedictionary.com/estoppel [Found on MSN Search]
19.
Page 138
Promissory estoppel
Acceptable alternative ways of describing promissory estoppel are: ...
Promissory estoppel is used where, although there may not otherwise be a
enforceable ...
homepage.gallaudet.edu/marshall.wick/bus447/promissory_estoppel.
html [Found on Google]
20.
Creditnet estoppel discussion
Creditnet Estoppel Discussion and a new estoppel letter. ... various credit
boards, looked at everything including the estoppel letter. A couple of days
ago someone posted ... posts that ba...
www.creditwrench.greatnow.com/Creditnet~Estoppel~Discussion.htm
l [Found on Yahoo! Search]
http://en.wikipedia.org/wiki/Estoppel
QUOTE
Estoppel
From Wikipedia, the free encyclopedia
Jump to: navigation, search
Estoppel is an equitable doctrine proposing that any person who asks the courts to enforce a
legal remedy should have a clear conscience. Wherever a law is broken, a right of action is
created in any person who has suffered a loss (the plaintiff or claimant in England and Wales).
This right to a remedy is enforced through the courts. In almost all cases, the state of the
plaintiff's conscience will be irrelevant to obtaining relief. But, if the plaintiff has said or done
something that induced the defendant to change his or her behaviour and that reliance was
reasonable, the courts have a discretion to deny the remedy to the plaintiff. Hence, an estoppel is
not a remedy "at law" in common law jurisdictions, but based on principles of equity. In the
majority of cases, it is only a defence and it works by preventing a plaintiff from enforcing
established legal rights, or from relying on a set of facts that would give rise to enforceable rights
(e.g. words said or actions performed) if that enforcement or reliance would be unfair to the
defendant. Because its effect is to defeat generally enforceable legal rights, the scope of the
remedy is often very limited.
In the case of an existing debt, for example, an estoppel could arise where the creditor informs
the debtor that the debt is forgiven, but there is no formal termination of the contract. If the
creditor later tries to enforce the original contract terms, but the debtor has relied on the
representation and has innocently spent the money on something else, the creditor may be
estopped from relying on the usual contractual right to repayment because it would be unfair to
allow the creditor to change his or her mind. Similarly, a landlord may tell a tenant that the rent
is reduced or cancelled for a specific period of time, e.g. "You can pay half rent until the noise
and dirt from the maintenance of the common parts is over." If the tenant changes behavior as a
result of what is said, the landlord might be "estopped" from retrospectively claiming the full
rent.
Estoppel is closely related to the doctrines of waiver, variation, and election and is applied in
many areas of law, including insurance, banking, employment, international trade, etc. In English
law, the concept of Legitimate expectation in the realm of administrative law and judicial review
is estoppel's counterpart in public law, albeit subtle but important differences exist.
See venire contra factum proprium in legal systems based on civil law.

Page 139
Contents
[hide]
 1 Overview
o 1.1 Definition
o 1.2 Major types
 2 Reliance-based estoppels
o 2.1 Estoppel by representation of fact
o 2.2 Equitable estoppel
o 2.3 Proprietary estoppel
o 2.4 Promissory estoppel
 2.4.1 English law
 2.4.2 Australian law
 2.4.3 American law
 3 Other estoppels
o 3.1 Estoppel in pais
o 3.2 Estoppel by convention
o 3.3 Estoppel by acquiescence
o 3.4 Estoppel by deed
o 3.5 Issue Estoppel
 4 External links
[edit]
Overview
[edit]
Definition
Estoppel in English law is defined as: "a principle of justice and of equity. It comes to this: when
a man, by his words or conduct, has led another to believe in a particular state of affairs, he will
not be allowed to go back on it when it would be unjust or inequitable for him to do so." in
Moorgate Mercantile v Twitchings [1976] 1 QB 225, CA at 241 per Lord Denning MR.
The definition in American law is similar: "Speaking generally, estoppel is a bar which precludes
a person from denying or asserting anything to the contrary of that which has, in contemplation
of law, been established as the truth, either by the acts of judicial or legislative officers, or by his
own deed, acts, or representations, either express or implied." 28 Am Jur 2d Estoppel and Waiver
§1
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Major types
The main species of estoppel under English, Australian, and American laws are:
 Estoppel by record This frequently arises as issue/cause of action estoppel, judicial

estoppel or res judicata where the orders or judgments made in previous legal
proceedings prevent the parties from relitigating the same issues or causes of action,
 Estoppel by deed Where rules of evidence (often regarded as technical or formal
estoppels) prevent a litigant from denying the truth of what was said or done, and
 Reliance-based estoppels These are the most important forms. Under English law, this
class includes estoppel by representation of fact, promissory estoppel and proprietary
estoppel (see Halsbury's Laws of England, Vol 16(2), 2003).
o Estoppel by representation of fact is known as equitable estoppel in American
law.
o Equitable estoppel as understood in English law, includes:

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 promissory estoppel, and
 proprietary estoppel,
 Although some authorities regard reliance-based estoppels as mere rules of evidence, they
are in reality rules of substantive law.
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Reliance-based estoppels
Under English law, estoppel may be:
 by representation of fact, where one person asserts the truth of a set of facts to another;
 promissory estoppel, where one person makes a promise to another, but there is no
enforceable contract; and
 proprietary estoppel, where the parties are litigating the title to land.
These are regarded as reliance-based estoppels by Halsbury's Laws of England, Vol 16(2),
2003. Both Halsbury's and Spencer Bower (see below) describe all three estoppels collectively as
estoppels by representation. More simply, one party must say or do something and see the
other party rely on what is said or done to change behavior. So, suppose that:
 D has the money to repay a debt,

 but the creditor tells D that the debt is forgiven,
 so, without doing anything else, D buys a car that he would not otherwise have been able
to afford,
 and the creditor is aware of this reaction.
D is a bare promisee/representee. The original contract is still valid because D has not given any
value or consideration to make the termination of liability legally binding. Under normal
circumstances, a court will not enforce a bare promise but D may be given a remedy if, and only
if, the judge decides that it would be "unconscionable" for the creditor to renege on the promise
or represention knowing that D would be penalized. Estoppel is, therefore, an exception to the
normal operation of the law and gains its power from equity. Only proprietary estoppel can
create a cause of action in English law (and, then, only in very limited circumstances), while the
other two can support a defence and a counterclaim. Under Australian law, these estoppels can
create both a cause of action and a defense. Under American law, equitable estoppel is available
only as a defense, while promissory estoppel can be used as the basis of a cause of action.
To establish a reliance-based estoppel, the victimised party must be able to show both
inducement and detrimental reliance, i.e.:
 there must be evidence to show that the representor actually intended the victim to act on
the represention or promise, or
 the victim must satisfy the court that it was reasonable for him or her to act on the
relevant representation or promise, and
 what the victim did must either have been reasonable, or
 the victim did what the representor intended, and
 the victim would suffer a loss or detriment if the representor was allowed to deny what
was said or done — detriment is measured at the time when the representor proposes to
deny the representation or withdraw the promise, not at the time when either was made,
and
 in all the circumstances, the behavior of the representor is such that it would be
"unconscionable" to allow him or her to resile.

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Estoppel by representation of fact and promissory estoppel are mutually exclusive: the former is
based on a representation of existing fact (or of mixed fact and law), while the latter is based on a
promise not to enforce some pre-existing right (i.e. it expresses an intention as to the future). A
proprietary estoppel operates only between parties who, at the time of the representation, were in
an existing relationship, while this is not a requirement for estoppel by representation of fact.
The test for unconscionability in the English and Australian courts takes many factors into
account, including the behavior, state of mind and circumstances of the parties. Generally, the
following eight factors are determinative (Michael Spence, Protecting Reliance: The Emergent
Doctrine of Equitable Estoppel, Oxford: 1999, pp60-66):
 how the promise/representation and reliance upon it were induced;

 the content of the promise/representation;
 the relative knowledge of the parties;
 the parties' relative interest in the relevant activities in reliance;
 the nature and context of the parties' relationship;
 the parties' relative strength of position;
 the history of the parties' relationship; and
 the steps, if any, taken by the promisor/representor to ensure he has not caused
preventable harm.
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Estoppel by representation of fact
In English law, estoppel by representation of fact is a term coined by Spencer Bower. This
species of estoppel is also referred to as "common law estoppel by representation" in Halsbury's
Laws of England, vol 16(2), 2003 reissue.
In The Law relating to Estoppel by Representation, 4th edition, 2004 at para I.2.2, Spencer
Bower defines estoppel by representation of fact as follows:
Where one person (‘the representor’) has made a representation of fact to another person
(‘the representee’) in words or by acts or conduct, or (being under a duty to the
representee to speak or act) by silence or inaction, with the intention (actual or
presumptive) and with the result of inducing the representee on the faith of such
representation to alter his position to his detriment, the representor, in any litigation
which may afterwards take place between him and the representee, is estopped, as
against the representee, from making, or attempting to establish by evidence, any
averment substantially at variance with his former representation, if the representee at
the proper time, and in proper manner, objects thereto.
A second definition can be found at Wilken and Villiers, The Law of Waiver, Variation and
Estoppel, 2nd ed, Oxford: 2003, at para 9.02:
An estoppel by representation [of fact] will arise between A and B if the following
elements are made out. First, A makes a false representation of fact to B or to a group of
which B was a member. [It is not necessary to demonstrate A knew that the
representation was untrue.] Second, in making the representation, A intended or [in the
alternatively,] knew that it was likely to be acted upon. Third, B, believing the
representation, acts to its detriment in reliance on the representation. [It must have been
reasonable to rely on the representation.] Fourth, A subsequently seeks to deny the truth
of the representation. Fifth, no defence to the estoppel can be raised by A.
A representation can be made by words or conduct. Although the representation must be clear
and unambiguous, a representation can be inferred from silence where there is a duty to speak or
from negligence where a duty of care has arisen. Under English law, estoppel by representation
of fact usually acts as a defence, though it may act in support of a cause of action or
counterclaim.
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Although there is some debate as to whether "unconscionability" is an element that English
courts need to take into account when considering estoppel by representation of fact, the
Australian courts clearly do (see Wilken and Villiers, para 9-03; The Commonwealth v Verwayen
(1990) 170 CLR 394 at 444 per Deane J.)
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Equitable estoppel
As noted above, although both English and Australian laws treat promissory and proprietary
estoppels as species of equitable estoppel, the status of estoppel by representation of fact is less
clear in Australia. The decisions of Waltons Stores (Interstate) v Maher (1988) 164 CLR 387 and
Commonwealth v Verwayen (1990) 170 CLR 394, both purport to fuse common law and
equitable estoppels into a single unified doctrine, but the New South Wales Court of Appeal in
Bryon Shire Council v Vaughan [2002] NSWCA 158 continues to treat estoppel by
representation at common law as distinct from equitable estoppel. (See Meagher, Gummow &
Lehane's Equity: Doctrines & Remedies, 4th edition, Butterworth: 2002, Chapter 17 and
Pakinson, The Principles of Equity, 2nd edition, LBC: 2003, Chapter 7). This can be significant
in deciding which court has jurisdiction to adjudicate on the issue.
The American doctrine of equitable estoppel is the same as the English estoppel by
representation of fact:
The most comprehensive definition of equitable estoppel or estoppel in pais is that it is
the principle by which a party who knows or should know the truth is absolutely
precluded, both at law and in equity, from denying, or asserting the contrary of, any
material fact which, by his words or conduct, affirmative or negative, intentionally or
through culpable negligence, he has induced another, who was excusably ignorant of the
true facts and who had a right to rely upon such words or conduct, to believe and act
upon them thereby, as a consequence reasonably to be anticipated, changing his position
in such a way that he would suffer injury if such denial or contrary assertion was
allowed. 28 Am Jur 2d Estoppel and Waiver § 28
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Proprietary estoppel
The traditional version of proprietary estoppel arises in negotiations affecting title to land. So if:
 one party represents that he or she is transferring an interest in land to another, but what is
done has no legal effect, or
 merely promises at some time in the future to transfer land or an interest in land to
another, and
 knows that the other party will spend money or otherwise act to his or her detriment in
reliance on the supposed or promised transfer,
an estoppel may arise. Thus, in Dillwyn v Llwellyn (1862) 4 De G.F.& J. 517 C.A. a father
promised a house to his son who took possession and spent a large sum of money improving the
property. The father never actually transferred the house to the son. When his father died, the son
claimed to be the equitable owner and the court ordered the testamentary trustees to convey the
land to him. See also Inwards v Baker [1965] 2 Q.B. 29, C.A.
In Wilmott v Barber (1880) 15 Ch D 96, Fry J considered that five elements had to be established
before proprietary estoppel could operate:
 the plaintiff must have made a mistake as to his legal rights;

 the plaintiff must have done some act of reliance;
 the defendant, the possessor of a legal right, must know of the existence of his own right
which is inconsistent with the right claimed by the plaintiff;
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 the defendant must know of the plaintiff's mistaken belief; and
 the defendant must have encouraged the plaintiff in his act of reliance.
Although proprietary estoppel was only traditionally available in disputes affecting title to real
property, it has now gained limited acceptance in other areas of law. Proprietary estoppel is
closely related to the doctrine of constructive trust.
The term "proprietary estoppel" is not used in American law, but the principle is part and parcel
of the general doctrine of promissory estoppel.
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Promissory estoppel
The doctrine of promissory estoppel prevents one party from withdrawing a promise made to a
second party if the latter has relied on that promise and acted upon it.
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English law
In English law, a promise made without consideration is generally not enforceable. It is known as
a bare or gratuitous promise. Thus, if a car salesman promises not to sell a car over the weekend,
but does so, the promise cannot be enforced. But should the car salesman accept even one penny
in consideration for the promise, the promise will be binding and enforceable in court. Estoppel
is an exception to this rule.
The doctrine of promissory estoppel was first developed in Hughes v. Metropolitan Railway Co
[1877] but was lost for some time until it was resurrected by Lord Denning in the controversial
case of Central London Property Trust Ltd v. High Trees House Ltd [1947] K.B. 130.
In this case, the plaintiffs leased a block of flats to the defendants at an annual rent of £2500 -
but, because the defendants were unable to find enough tenants while London was being bombed
during WWII, they agreed to accept a reduction in rent to £1250. There was no consideration for
this promise to accept a lower rent. At the end of the war the flats were again fully let, and the
plaintiffs claimed the full rent for the remainder of the contract beginning the final half of that
year, 1945. Denning J held that, in good conscience, they were entitled to the full rent from the
end of the war, but noted that they were estopped from going back on their promise had they
claimed rents from the wartime period as well.
Promissory estoppel requires:
 (i) an unequivocal promise by words or conduct,

 (ii) evidence that there is a change in position of the promisee as a result of the promise
(reliance but not necessarily to their detriment),
 (iii) inequity if the promisor was to go back on the promise.
Estoppel is "a shield not a sword" — it cannot be used as the basis of an action on its own. It also
does not extinguish rights. In High Trees the plaintiff company was able to restore payment of
full rent from early 1945, and could have restored the full rent at any time after the initial
promise was made provided a suitable period of notice had been given. It is to be noted that in
this case, the estoppel was applied to a 'negative promise', that is, one where a party promises not
to enforce full rights.
Estoppel is an equitable (as opposed to common law) construct and its application is therefore
discretionary. In the case of D & C Builders v. Rees the courts refused to recognise a promise to
accept a part payment of £300 on a debt of £482 on the basis that it was extracted by duress. In
Combe v. Combe Denning elaborated on the equitable nature of estoppel by refusing to allow its
use as a "sword" by an ex-wife to extract funds from the destitute husband.
Promissory estoppel is not available when one party promises to accept a lesser sum in full
payment of a debt, unless the debtor offers payment at an earlier date than was previously agreed.

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This is the rule formulated in Pinnel's Case (1602) 5 Co Rep 117a, and affirmed in Foakes v.
Beer (1884) 9 App Cas 605.
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Australian law
The doctrine of promissory estoppel was adopted into Australian law in Legione v. Hateley
(1983) 152 CLR 406; however, the plaintiffs were unsuccessful in that case because the reliance
was unreasonable and the promise not unequivocal.
In fact, now Australian law has gone beyond the position espoused in the High Trees case; it has
been extended successfully to cases where there is no pre-existing legal relationship between the
two parties, and promissory estoppel can be wielded as a "sword", not just as a "shield". Mason
CJ and Wilson J in Waltons Stores (Interstate) Ltd v. Maher (1988) 164 CLR 387 held that if
estoppel is proven, it gives rise to an equity in favour of the plaintiff, and the court will do the
minimum equity that is just in the circumstances. From this case, it is also possible for the
promise to come from silence or inaction.
As noted above, in Australian law, there is an element of unconscionability, which is satisfied if
one party encourages the other party to create assumptions that lead to reliance.
Today, the principle of estoppel may give birth to an enforcable obligation even without a
consideration under the following conditions: 1. promise 2. unhonest behavior of the promittant
3. special relationship between the promittant and the beneficior (eg: duty of information) 4.
irreversible changement of the situation of the beneficior of the promise
[edit]
American law
In the many jurisdictions of the United States, promissory estoppel is generally an alternative to
consideration as a basis for enforcing a promise. It is also sometimes referred to as detrimental
reliance.
The American Law Institute in 1932 included the principle of estoppel into § 90 of the
Restatement of Contracts, stating:
A promise which the promisor should reasonably expect to induce action or forbearance
of a definite and substantial character on the part of the promisee and which does induce
such action or forbearance is binding if injustice can be avoided only by enforcement of
the promise. Restatement (Second) removed the requirement that the detriment be
"substantial".
The distinction between promissory estoppel and equitable estoppel should be noted:
Equitable estoppel is distinct from promissory estoppel. Promissory estoppel involves a
clear and definite promise, while equitable estoppel involves only representations and
inducements. The representations at issue in promissory estoppel go to future intent,
while equitable estoppel involves statement of past or present fact. It is also said that
equitable estoppel lies in tort, while promissory estoppel lies in contract. The major
distinction between equitable estoppel and promissory estoppel is that the former is
available only as a defense, while promissory estoppel can be used as the basis of a cause
of action for damages. 28 Am Jur 2d Estoppel and Waiver § 35
Suppose that B goes to a store and sees a sign that the price of a radio is $10. B tells the
shopkeeper that he will get the money and come back later that day to purchase it; there is no
discussion of price. The shopkeeper says that when B returns, he will be happy to deal with B as
he deals with all his customers but that, if he sells all the radios (he has three), he will not be able
to help B. Hearing this, B goes and sells his watch for $10 (it was really worth $15, but since B
wanted the money right away, he chose not to wait for the best price). When B returns, the sign
says $11, and the owner tells B that he has raised the price. In Equity, can you argue that the
shopkeeper is estopped by conduct? B relied upon the implied representation that a radio would
be sold for $10 when he returned with the money; B has sold his watch at a price lower than the
market price, and thus he has acted to his detriment. (Note that if B's watch was worth $10, and
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he received a fair price, there would be no detriment.) But the problem is that the shopkeeper did
not guarantee to hold one of the radios against the possibility of B's return nor did they agree a
fixed price. The shopkeeper's conscience might have been affected if he had known that B was
going home to collect the money and would definitely return to buy one of the three radios.
Indeed, in some common law jurisdictions, a promise by the shopkeeper to hold a specific radio
would create a binding contract, even if B had to go for the money. A promise to pay the owner
in the future is good consideration if it is made in exchange for a promise to sell a specific radio
(one from three is probably sufficiently specific): one promise in exchange for a second promise
creates equal value. So the shopkeeper's actual words and knowledge are critical to deciding
whether either a contract or an estoppel arises.
For an example of promissory estoppel in the construction industry, suppose that B Ltd
consolidates estimates from a number of subcontractors and quotes a single price on a
competitive tender. The client accepts B Ltd's quote and construction begins. But one of the
subcontractors then claims reimbursement above its original estimate and, because of this
change, B Ltd cannot profit from the works. If both parties knew that the accuracy of the
individual estimates was critical to the success of the tender and the profitability of the contract
as a whole, a court might apply promissory estoppel and allow B Ltd to pay only what the
subcontractor originally estimated rather than the new, higher price. But, if both parties hoped
that there would be an opportunity to increase the contract prices to reflect additional
expenditure, the subcontractor's conscience would not be as limited in seeking a higher payment
and B Ltd might be penalised for not building an adequate contingency sum into the tendered
price.
One contentious point during the drafting of the Restatement was how to calculate the amount of
damages flowing from a promissory estoppel. During the deliberations, the following example
was considered: a young man's uncle promises to give him $1,000 to buy a car. The young man
buys a car for $500, but the uncle refuses to pay any money. One view was that the young man
should be entitled to $1,000 (the amount promised), but many believed that the young man
should only be entitled to $500 (the amount he actually lost). The language eventually adopted
for the Second Restatement reads: "The remedy granted for breach may be limited as justice
requires." — a formula which leaves quantification to the discretion of the court.
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Other estoppels
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Estoppel in pais
Estoppel in pais (literally “by act of notoriety", or "solemn formal act”) is the historical root of
common law estoppel by representation and equitable estoppel. The terms Estoppel in pais and
equitable estoppel are used interchangeably in American law.
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Estoppel by convention
Estoppel by convention in English law (also known as estoppel by agreement) occurs where two
parties negotiate or operate a contract but make a mistake. If they share an assumption, belief or
understanding of how the contract will be interpreted or what the legal effect will be, they are
bound by that belief, assumption or understanding if:
 (i) they both knew the other had the same belief, and
 (ii) they both based their subsequent dealings on those beliefs.
Some say that that estoppel by convention is not truly an estoppel in its own right, but merely an
instance of reliance-based estoppel (estoppel by representation would be its most frequent form).
Others see it is no more than an application of the rule of interpretation that, where words in a

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contract are ambiguous, you always interpret those words so as to give effect to the actual
intentions of the parties even though that would not be the usual legal outcome.
[edit]
Estoppel by acquiescence
Estoppel by acquiescence may arise when one person gives a legal warning to another based on
some clearly asserted facts or legal principle, and the other does not respond within "a reasonable
period of time". By acquiescing, the other person is generally considered to have lost the legal
right to assert the contrary.
As an example, suppose that Jill has been storing her car on Jack's land with no contract between
them. Jack sends a registered letter to Jill's legal address, stating: "I am no longer willing to allow
your car to stay here for free. Please come get your car, or make arrangements to pay me rent for
storing it. If you do not do so, within 30 days, I will consider the car abandoned and will claim
ownership of it. If you need more time to make arrangements, please contact me within 30 days,
and we can work something out." If Jill does not respond, she may be said to have relinquished
her ownership of the car, and estoppel by acquiescence may prevent any court from invalidating
Jack's actions of registering the car in his name and using it as his own.
[edit]
Estoppel by deed
Estoppel by deed is a rule of evidence arising from the status of a contract signed under seal —
such agreements, called deeds, are more strictly enforced than ordinary contracts and the parties
are expected to take greater care to verify the contents before signing them. Hence, once signed,
all statements of fact (usually found in the opening recital which sets out the reason(s) for
making the deed) are conclusive evidence against the parties who are estopped from asserting
otherwise.
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Issue Estoppel
Issue Estoppel or Res Judicata The civil law use of issue estoppel or res judicata (literally
translated as "the fact has been decided") is relatively uncontroversial. It expresses a general
public interest that the same issue should not be litigated more than once even when the parties
are different. The criminal law application, called double jeopardy provides that a person should
not be tried twice for the same offence. In crime/mystery fiction, it is a common plot device to
have the villain exploit the rule. In the world of real crime, some cases have achieved notoriety,
e.g. in the Birmingham Six saga, the House of Lords ruled in Hunter v. Chief Constable of the
West Midlands Police (1982) that issue estoppel applied. Lord Diplock said:
The inherent power which any court of justice must possess to prevent misuse of its
procedure in a way which, although not inconsistent with the literal application of its
procedural rules, would nevertheless be manifestly unfair to a party to litigation before it,
or would otherwise bring the administration of justice into disrepute among right-
thinking people.
[edit]
External links
 On issue estoppel: House of Lords - Arthur JS Hall and Co. v. Simons

 Convergence of estoppels (1) : High Court of Australia - Walton Stores (Interstate) Ltd v
Maher
 Convergence of estoppels (2) : High Court of Australia - The Commonwealth v Verwayen
 Review of the state of convergence: High Court of Australia - Giumelli v Giumelli
Retrieved from "http://en.wikipedia.org/wiki/Estoppel"

Page 147
END QUOTE
In my view, the DUTY OF CARE requires the Australian Electoral Commissioner to still ensure
that the constitutional based objections are appropriately dealt with as to ensure that the
legislation, part legislation, proclamation and/or writ(s) are appropriately declared to be ULTRA
VIRES or INTRA VIRES.
There is no legal duty upon me to pursue this matter further, as once I made the constitutional
based objections, then for my part I had basically done what I could to have the legislation, part
legislation, proclamation and/or writ(s) become ULTRA VIRES.
It was then the duty of the Australian Electoral Commissioner to immediately seek relief from
the appropriate Court as to state the true constitutional position that may or may not have been to
declare the election process and so the election valid.
The Australian Electoral Commissioner having failed to do so, and by this the entire election was
ULTRA VIRES and remained for ever to be so, then there was no way Section 245 of the
Commonwealth Electoral Act 1918 could be invoked for this either.
Hence, the undisposed constitutional based objections became an ESTOPPEL against any
enforcement of Section 245 in that regard also.
The affirmative misconduct by the Australian Electoral Commission, having misled me as to the
appropriate process to pursue matters objected against to be rectified should therefore be a
ESTOPPEL against wrongful enforcement of what was objected against.
http://online.ceb.com/calcases/C3/3C3d462.htm
CITY OF LONG BEACH v. MANSELL (1970) 3 C3d 462
A similar statement of the doctrine has appeared in the statutes of California since 1872
(former Code Civ. Proc., § 1962, subd. 3), and section 623 of the Evidence Code now
provides: "Whenever a party has, by his own {Page 3 Cal.3d 489} statement or conduct,
intentionally and deliberately led another to believe a particular thing true and to act upon
such belief, he is not, in any litigation arising out of such statement or conduct, permitted to
contradict it."
Attorney-General to certify legislation constitutionally valid
&
Need for an OFFICE OF THE GUARDIAN
The following will show that besides any Member of Parliament being able to challenge the
constitutional validity of a proposed Bill, the Speaker (House of Representatives) or the President
(Senate) can challenge constitutional validity of a Bill, as well as that the Attorney-General must
certify the constitutional validity of a proposed law (Bill).
But, as Attorney-Generals are political appointments recommended by a Prime Minister their
judgment could be clouded and for this also an OFFICE OF THE GUARDIAN, a
constitutional council, to advise the Government, the People, the Parliament and the Courts about
constitutional powers and limitations should be the way validity of proposed legislation (Bill)
As is seen with citizenship, religious objection, etc, legislation is put in place where no one
seems to have a clue what is constitutionally proper. Members of Parliament often rely upon the
Attorney-General or their political leader who may not have a clue what is or is not
constitutionally permitted. Hence, an OFFICE OF THE GUARDIAN could provide unbias

Page 148
presentation and members of Parliament could obtain independent advise not tainted by political
motives. Likewise so the public.
Mr. ISAACS.-It seems that the Constitution is, made for the Senate, and not for the
people.
Mr. DEAKIN.-Not even for the Senate.
Sir JOHN DOWNER.-Now it is coming out. The Constitution is made for the people
and the states on terms that are just to both.
Mr. DEAKIN.-It is made for the lawyers under this clause.
Sir JOHN DOWNER.-I do not think so. If you say "Trust the Parliament," no
Constitution is required at all; it can simply be provided that a certain number of gentlemen
shall be elected, and meet together, and, without limitation, do what they like. Victoria
would not agree to that. But there is a desire to draw the very life-blood of the Constitution,
so far as the states are concerned, by this insidious amendment, which would give the
Houses authority from time to time to put different constructions on this most important
part of the Constitution. I hope we will do as we have done in many instances before, in
matters that have been much debated-adhere to the decision we have already arrived at.
Dr. QUICK-(Victoria).-In the earlier stages of the history of the Convention we heard the
doctrine propounded of "Trust the Federal Parliament." It seems that doctrine has been
exploded, and that we are approaching another doctrine-"Do not trust the Senate." Here is a
privilege supposed to be put in the Constitution especially to protect the Senate, and to
increase its power, influence, and independence. Now it is assumed that the Senate cannot
be trusted-that the Chamber for whose special benefit, honour, and dignity this power is to
be inserted cannot be trusted. You cannot trust it or its President, or its majority, to avail
itself of its own privileges; you want to place a power in this Constitution in another body
outside the Senate to protect the privileges of the Senate. I, for one, have a higher [start
page 2007] opinion of the authority, influence, and independence of the Senate than those
who now want to hedge about the Senate with this judicial protection. In the first place, it is
not necessary to hedge the Senate about with this judicial protection. The Senate should be
quite capable of protecting and defending itself against any invasion of its privileges from
another Chamber. There are two methods in which the privileges of the Senate can be
defended; first, there is the President, whose absolute duty it would be to rule out of order
any Bill from the House of Representatives infringing or violating those privileges. It
would be the prerogative of the President to do this, absolutely regardless of the opinion of
the Senate itself. The President has not merely to act upon a point taken by a member of the
Senate, but is placed in his position to act of his own motion, without waiting to have his
attention directed to any particular clause infringing the Constitution. It would be the duty
of a President to say that the Bill was out of order, and it would then be sent back to the
House of Representatives with an intimation to that effect. I venture to question whether
even a majority of the Senate would dare to attempt to override a decision of the President.
We are asked to assume, firstly, that the President would not do his duty; then we are asked
to go further, and assume that the majority would either wink at infringements of the
Constitution or fail to do its duty. Secondly, we are asked to create a judicial body outside
Parliament, with power to declare that after the Bill has been passed, it is ultra vires, not on
the ground of substance, or that it deals with a matter with which it has no substantial
Page 149
jurisdiction to deal-one could understand that-but that a Bill is ultra vires on the ground
that there has been some mistake in procedure in the progress of the Bill through
Parliament. It would be, in my opinion, an absolute degradation of the Federal Parliament
to allow such power to be exercised even by a judicial body, not only on account of the
inconvenience which might result, as pointed out by Mr. Isaacs, but also on account of the
absolute indignity it would inflict on the Federal Parliament. The Supreme Court would
have undoubted and righteous jurisdiction on a point of substance. But it is another matter
to say that the Supreme Court should have power to interfere in a technical question of
procedure in reference to a Bill passed by the two Federal Houses, and declare a Bill on
that ground to be ultra vires. We ought to fairly trust that that House which is clothed with
privilege to exercise that privilege will preserve it, and we ought not to assume that that
House will not do its constitutional duty.
Mr. CARRUTHERS (New South Wales).-It is worth while considering the stages that a
proposed law has to go through, and the opportunity afforded to a member of either House
or a member of the Executive to call attention to any infraction or infringement of the
Constitution. It does not require a majority of the members of the House of Representatives
to insist that the Constitution shall be obeyed in the matter of procedure; it only requires
one solitary member to rise to a point of order, and the Speaker has to give a legal
interpretation of the rules of procedure. It only requires one member of the Senate to call
the attention of the President to the fact that a Bill is introduced contrary to the Constitution
for that proposed law to be ruled out of order. It does not require a majority of the states to
insist that the Constitution shall be obeyed, because a majority of the states cannot by
resolution infringe the Constitution. Neither House could pass the standing order which
would give the majority power to dissent from the Speaker's or President's ruling. The
standing orders only confer certain explicit power. They give no power to either House to
pass an order which would enable its members to amend the Constitution.
[start page 2008]
Therefore, the protection is absolutely effective, when one member of either House can by
raising a point of order arrest the passage of a proposed law which infringes the rules
regulating procedure. Then, after the law has been passed by both Houses, it is presented to
the Governor for his assent. Under constitutional usage we know that the Governor always
insists upon the Law officer of the Crown giving him a certificate that everything necessary
to be complied with by law has been complied with. The Attorney-General for the time
being has to give a certificate to the Governor, and we may be sure that that practice will be
followed under the Federation. That is sufficient protection. Then there is the other ground,
that this is a proposal to protect the rights of the people against the encroachments of the
Legislature.
Attorney-Generals generally are lawyers who had limited practice experiences and unlikely are
“constitutionalist” yet their principle job is to certify that proposed laws (Bills) are within the
Constitutional powers to legislate.
A clear example at the moment is the Industrial Relations. Constitutionally “company”
legislative powers is only to Industrial Relations issues beyond the border of one State, but the
Federal parliament driven by political motives enacted draconic unconstitutional legislation,
seemingly certified by the Attorney-General as being within constitutional limits where had the
Attorney-General checked back on the Hansard records of the Constitution Convention
Debates he may just have discovered it is not so.

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And here is the problem that without an OFFICE OF THE GUARDIAN there is no one who
can put up a reasonable set out what is constitutionally appropriate. This is also why since 1948
no one even understood that “citizenship” is a State legislative power nothing to do with the
Commonwealth.
The same problems are with interpreting the true meaning of the Constitution. For example
Section 43 use the word “chosen” but this, as with “chosen” in section 44 refers actually to being
“chosen” by the Governor-General not as to being elected in a “election”. This, as the Framers of
the Constitution made clear that the electors could elected anyone, even if disqualified within
Section 44, provided the person get rid of any disability before taking up a seat in the Parliament.
Therefore the Governor-General cannot choose a person elected if this person is still subject of a
disability referred to in Section 44. Likewise, while a Member of one House can stand as a
candidate in an election for another House, the person if elected cannot be chosen by the
Governor-General to take the seat unless the person first relinquish the seat already held in the
other House.
By this electors are robbed of a FAIR and PROPER election, being unable to vote for those they
may desire to vote because a member of one House would not want to give up their seat without
first having the security of being elected to the other House!
44B. A member of either house of the parliament of the commonwealth shall be incapable
of being chosen or of sitting as a member of the other house of the parliament.
I think the phraseology conveys all that can be said in connection with the matter.
The Hon. E. BARTON: It is only a question of drafting!
The Hon. Sir P.O. FYSH: It is a question of drafting; and if the hon. and learned
member will make a note of it, it will obviate the necessity for any discussion on the point.
The Right Hon. Sir JOHN FORREST: The proposal to which the hon. member has
referred goes further than the proposal in this bill!
The Hon. Sir P.O. FYSH: It is a provision which we ought to apply to both houses, and
I submit that our proper course is to strike out the clause now, and to, reconsider it when
we come to Part IV.
The CHAIRMAN: Do I understand that the hon. member, Mr Wise, desires to, move an
amendment.
Mr. WISE (New South Wales)[9.59]: I do not desire to move an amendment at this stage;
but the question I wish to test is whether a member of the senate and the house of
representatives should not have the power to contest an election for a seat in the house of
which he is not a member without resigning his seat in the house to which he belongs.
The Right Hon. Sir JOHN FORREST: He might be elected without knowing it!
Mr. WISE: I do not wish to press the matter now. I have not the reports of the
Tasmanian debates before me; but I was under the impression that an amendment to this

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effect had been moved by Mr. A.I. Clark. I think it is well worthy the attention of the
Committee.
The Hon. E. BARTON (New South Wales)[10]: It will lead to considerable complication
if the electors of the whole commonwealth do not understand that when a person is a
member of the senate be cannot be made a member of the house of representatives. To
place the matter in this way in the constitution does not impair the efficiency of the clause,
and it is, at the same time, a clear indication to every elector as to what is intended.
The Hon. Sir P. 0. FYSH: Would it not be well to change the position of the clause?
The Hon. E. BARTON: It is not a question of position!
The CHAIRMAN: I understand that the hon. and learned member, Mr. Wise, does not
intend to move his amendment.
Mr. WISE: No!
The Hon. N.E. LEWIS (Tasmania)[10.1]: If this clause is to stand part of the bill I think it
should go further and provide that a member of the house of [start page 460]
representatives shall not be capable of being chosen or sitting as a member of the senate.
Mr. WISE: Do this later on!
The Hon. E. BARTON: It is possible the position of the clause will have to be changed!
The Hon. N.E. LEWIS: If you pass this clause you ought to have an alternative
provision in regard to the senate.
The Right Hon. G.H. REID (New South Wales)[10.2]: I think it would be well if this
clause were postponed, because there is a strong opinion that, if this clause is retained in
the bill, there should be a similar clause with reference to the members of the house of
representatives.
The Hon. H. DOBSON: They both come later!
The Right Hon. G.H. REID: Yes.
The Hon. E. BARTON (New South Wales)[10.3]: I have no objection to the

postponement of the clause, which will give us an opportunity to consider the matter.
Clause postponed.
offices!

Page 152
certainties.
certainty!
position.
Again;
It will lead to considerable complication if the electors of the whole commonwealth do not
understand that when a person is a member of the senate be cannot be made a member of
the house of representatives.
A person elected is not a Member of Parliament unless first chosen by the Governor-General to
become a Member of Parliament and only when the elected person actually accepts this then the
person becomes a Member of Parliament.
There are in that regard three stages;
1. A person is elected
2. The elected person is “chosen” by the Governor General to become a Member of a House
of the Representatives or is “chosen” by the Governor of the relevant State to become a
Senator..
3. The elected and “chosen” person accept to take up a seat in the Parliament.
As the Framers of the Constitution made clear, a person may be elected but then decide not to
accept to take up a seat in the Parliament.
The Governor could “choose” to have a by the State nominated person to become a Senator, even
so this person was not elected! Hence, “chosen” and “elected” have different meanings.
Section 11 of the Constitution refers to “choose” and this does not refer to an “election” but a
failure by a State to nominate its Senator. For example, the State may refuse to nominate the
elected person to represent it as a Senate Member (Senator). The Governor of the State may
refuse to have “chosen” the elected person for whatever reason the Governor deems fit and
proper! The person elected may be in breach of Section 44 of the Constitution, being still subject
to a bankrupt order, etc.
Likewise, the Governor-General may not “choose” a sitting Member of the Senate to take up a
seat in the house of Representatives unless the person first resign his/her seat in the Senate.
Likewise, a Governor may refuse to “choose” a person elected to be a Senator if the Governor is
aware this person still is a Member of the House of Representatives.
A person may have been an eligible person to take up a seat in the Parliament (if elected and
chosen) at the time an election was held and subsequently elected but then when either the
governor or the Governor-General is due to choose the elected person this person is subjected to
a, say, bankrupt order. The Governor-General or the Governor cannot now “choose” this person
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as the person, albeit eligible at the time the election was held no longer is entitled to become a
Member of Federal Parliament because of the bankrupt order made since the election was held.
It is therefore essential to differentiate as to what the word “chosen” means in the Constitution
and not confuse it with being elected.
This Court would likely never have had this case to be heard before it had the Attorney-General
in the first place not certified the validity of the Australian Citizenship Act 1948, as such.
Likewise, had the relevant Attorney-General not certified for Subsection 245(14) for “religious
objection” but had provided for a general objection, and indeed had never certified for
compulsory voting either. The same with the Australian Electoral Commissioner removing
people of the electoral roll because they cannot be located, which is in breach of Section 41 of
the Constitution. Numerous other electoral issues are relating to being unconstitutional but who
to complaint to when those in power have their, sot to say, TUNNEL VISION and the
Australian electoral commissioner, such as in the 25-10-2001 correspondence of his lawyers
argues that it has all along been done that way.
Every election thousands upon thousands of people are unconstitutionally fined for not voting
even so it is embedded in the Constitution that one does not have to vote. Regretfully, no court
dealing in the past with cases regarding the compulsory voting ever bothered to consider what is
constitutionally appropriate considering what the Framers intended. This is why an OFFICE OF
THE GUARDIAN is so essential, as then finally any Court can seek relevant and appropriate
information without overlooking relevant details.
No judge can be expected to spend years of research on each and every constitutional issue that
arises, as the Defendant has done. Hence, without an OFFICE OF THE GUARDIAN existing
problems will accumulate more and more with new problems and it all or at least most of it could
be avoided if just some central source of information was available to anyone who desired to be
aware of what might be constitutionally proper.
This Court unlikely is going to adjourn the matter and then for the presiding judge to study all
material relating to the Constitution Convention Debates as to discover what was the true
intention of the Framers of the Constitution. The Commonwealth Director of Public Prosecution
hardly could be the appropriate source of information either, as they cannot even manage to be
aware of a “religious objection” and so any charge is without legal justification.
The Australian Electoral Commissioner hardly could be a source of information in that regard
either as the Australian Electoral Commissioner cannot even manage to apply the relevant
legislative provisions. It is therefore now that the Defendant is the more competent person and as
a self educated “constitutionalist” is the real source of information, and this is also demonstrated
in this ADDRESS TO THE COURT also.
Can the Commonwealth of Australia legislate as to influence constitutional provisions?
As set out extensively below the Commonwealth of Australia specifically has been excluded to
in any way legislate as to influence the meaning and application of the Constitution, this as the
Framers of the Constitution provided for Section 128 Referendum to do so.
Where the issues are statutory then the Commonwealth of Australia, for so far the legislation is
and remains within constitutional powers and limitations can amend its legislation. However,
below is given an example where there was an unconstitutional attempt to seek to amend the
meaning of proclamation referred to in Section 32 of the Constitution, and the usage of the word
“citizenship” and “Australian citizenship” and other constitutional provisions where this is and
remains beyond its constitutional powers to do so, and hence the Court must address those issues

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as to what is constitutionally appropriate, not to show any bias as to stray from this to hand down
a judgment that may be seen to be politically motivated or otherwise a denial of JUSTICE.
"In any event, the problem, being statutory and not constitutional, is ultimately, as it was in
the beginning, susceptible of congressional disposition."
United States v. Price Et AL , Supreme Court of the United States 383 U.S. 787; 86 S. Ct. 1152;
1966 U.S. LEXIS 1963
THIS PART IS CONTINUED BY PART 2
ADDRESS TO THE COURT, Part 2

STANDARDS OF BURDEN OF PROOF;
In criminal matters, at least as I understand it, the

Prosecutor has the burden of proof of criminal standard to
prove not only his case but to disprove each and every
element of the excuses proffered by the accused, this, while
the defendant has the civil standard of proof.
Therefore, if the Commonwealth Director of Public Prosecution is unable to prove beyond
reasonable doubt any of the excuses or reasons given by the Defendant then the Court cannot
convict, this as the criminal standards of proof requires that each and every element of the
Defendants case must be disproved. It is not good enough for the prosecutor to disprove 999 of a
1000 arguments put forwards by the Defendant, as a single argument failing to be disproved is
fatal to the prosecutions case to obtain a conviction.
Denial of exhibit ADDRESS TO THE COURT, even so already filed and served!
The Defendant has in the past experienced that a judge ignored the content of the ADDRESS TO
THE COURT only for the Full Court overturning the orders as the Full Court made clear that
the trial judge erred in law not to consider the relevant material that was before the Court.
Can a Magistrate by implication overrule a decision of another Magistrate, without being

aware of the previous Magistrate decision?
In my view a magistrate has no legal powers to overrule another magistrates decision and is
bound to consider any orders on foot. Hence the magistrate on 16 and 17 November 2005 was
bound to respect the outstanding orders directions of 4 December 2002 and 4-8-2005.
Can writs be declared invalid?
As elsewhere already set out in this ADDRESS TO THE COURT, writs can be declared invalid
if they fail to be as required by legislative provisions as well as if they are issued where there is

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no vacancy existing. Such as if a writ is issued prior to the publication of the Proclamation for a
“general election”.
Can elections be declared invalid?
Elections can be declared invalid, as set out elsewhere in this ADDRESS TO THE COURT, as
an election held under a defective writ is no election at all.
Is Section 353 of the Commonwealth Electoral Act 1918 unconstitutional?
During the proceedings before Marshall J of the Federal Court of Australia on 7 November 2001
Mr Peter Hanks QC of the Australian Electoral Commissioner submitted that Section 353 using
the term “and not otherwise” therefore did not allow jurisdiction to the Federal Court of
Australia to hear and determine matters governing an election. Marshall J wrongly accepted this
proposition.
The Constitution and so any provisions stated in the Constitution, including Section 32 are
subject to the legal determination of the High Court of Australia, which has the original
jurisdiction, and cannot be purportedly denied by the Parliament to be delegated to some Court of
Disputed Returns.
What was originally was that if there was an issue about a member of the House (of a
Parliament) being challenged to his validity to be in the House then this was determined by the
other Members of that House if the person was or was not entitled to be a Member of that House.
This is a complete different issue as to what the Defendant was pursuing before the Federal Court
of Australia, as the Defendant on 2 November 2001 and subsequently on 7 November 2001 was
not challenging any sitting member but was in fact challenging the legal validity of the writs that
were used for the intended election to be held then on 10 November 2001.
The challenge against the validity of any writ or proclamation is a constitutional issue and
therefore to be heard and determined in the ordinary manner. By a Court of law, which the High
Court of Australia sitting as a Court of Disputed Returns cannot be classified to be as such,
regardless if this is still involving the High Court of Australia and so its judges.
The defendant instituted his proceedings prior to the purported 10 November 2001 election being
held, and therefore there was no sitting member under challenge that possibly could have
invoked the right of a House to declare if a Member should sit in the House or not. Hence, the
Court of disputed Returns therefore neither could exercise for the House this issue. Therefore if
Section 353 is to purport that “and not otherwise” is to be understood as Marshall J did that a
challenge to an election at all times must be before the Court of Disputed Returns, then this is
unconstitutional as it denied the High Court of Australia sitting as High Court of Australia its
original jurisdiction.
Further, it would make a mockery of the Constitution, as Members of the Parliament could then
by this overrule any constitutional provision and avoid this being scrutinised by the High Court
of Australia or any other Court exercising federal jurisdiction as a Court of law.
The meaning and validity of;

(1) The validity of any election or return may be disputed by petition addressed to the
Court of Disputed Returns and not otherwise.
And the meaning and validity of;
The High Court shall be the Court of Disputed Returns, and shall have jurisdiction either
to try the petition or to refer it for trial to the Federal Court of Australia (the Federal
Court).

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are in question. This, as the wording “validity of election” is beyond the scope of the Parliament
to legislate for. The Parliament could legislate as to the manner in which a member of parliament
may have been elected, but could not provide for legal issues, such as a prospective candidate
wrongly denied to be nominated by the Australian Electoral Commission to have to follow the
course of a Court of Disputed Returns, as this is a “legal issue” of wrongly excluding a
prospective candidate, and the fact that incidentally a sitting Member may then have to vacate
his/her seat obtained during that election is not the real “legal” issue. It is a mere consequence to
if an election was not held in a proper legal format then the election was held invalid and the
parliament (either house) never had any constitutional power to override this, and as such neither
can the Court of Disputed Returns, acting for either House then exercise such power.
353 Method of disputing elections
(1) The validity of any election or return may be disputed by petition addressed to the Court of
Disputed Returns and not otherwise.
(2) The choice of a person to hold the place of a Senator by the Houses of Parliament of a State
or the appointment of a person to hold the place of a Senator by the Governor of a State
under section 15 of the Constitution shall be deemed to be an election within the meaning of
this section, and the provisions of this Division shall, so far as applicable, have effect as if
that choice or appointment were an election within the meaning of this Division.
(3) The choice of a person to hold the place of a Senator for the Australian Capital Territory by
the Legislative Assembly for the Australian Capital Territory or the appointment of a person
to hold the place of such a Senator by the Chief Minister for the Australian Capital Territory
under subsection 44(1) shall be deemed to be an election within the meaning of this section,
and the provisions of this Division shall, so far as applicable, have effect as if that choice or
appointment were an election within the meaning of this Division.
(4) The choice of a person to hold the place of a Senator for the Northern Territory by the
Legislative Assembly of the Northern Territory or the appointment of a person to hold the
place of a Senator by the Administrator of the Northern Territory under subsection 44(2)
shall be deemed to be an election within the meaning of this section, and the provisions of
this Division shall, so far as applicable, have effect as if that choice or appointment were an
election within the meaning of this Division.
354 The Court of Disputed Returns
(1) The High Court shall be the Court of Disputed Returns, and shall have jurisdiction either to
try the petition or to refer it for trial to the Federal Court of Australia (the Federal Court).
(2) When a petition has been so referred for trial, the Federal Court shall have jurisdiction to try
the petition, and shall in respect of the petition be and have all the powers and functions of
the Court of Disputed Returns.
(3) The High Court may refer to the Federal Court part of a petition in respect of an election or
return, being a part that consists of a question or questions of fact.
(4) Subject to any directions by the High Court, if the High Court refers part of a petition to the
Federal Court under subsection (3):
(a) the Federal Court has jurisdiction to deal with the part of the petition that has been
referred; and
(b) the Federal Court has, in respect of the petition, the powers and functions of the Court
of Disputed Returns, other than the powers referred to in paragraphs 360(1)(v), (vi),
(vii) and (viii) and in section 379; and
(c) subject to any directions by the High Court, further proceedings in relation to the part
of the petition are as directed by the Federal Court.
(5) The High Court may have regard to the findings of the Federal Court in dealing with the
petition and may in its discretion receive further evidence on questions of fact.

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(6) The jurisdiction conferred by this section may be exercised by a single Justice or Judge.
383 Injunctions
(1) Where a person has engaged, is engaging or is proposing to engage in any conduct that
constituted, constitutes or would constitute a contravention of, or an offence against, this Act
or any other law of the Commonwealth in its application to elections, the Federal Court of
Australia (the Federal Court) may, on the application of:
(a) in a case where the conduct relates to an election—a candidate in the election; or
(b) in any case—the Electoral Commission;
grant an injunction restraining the first-mentioned person from engaging in the conduct and,
if in the opinion of the Federal Court it is desirable to do so, requiring that person to do any
act or thing.
(2) Where:
(a) a person has refused or failed, is refusing or failing, or is proposing to refuse or fail, to
do an act or thing; and
(b) the refusal or failure was, is, or would be, a failure to comply with, or an offence
against, this Act or any other law of the Commonwealth in its application to elections;
the Federal Court may, on the application of:
(c) in a case where the refusal or failure relates to an election—a candidate in the election;
or
(d) in any case—the Electoral Commission;
grant an injunction requiring the first-mentioned person to do that act or thing.
(3) Where an application is made to the Federal Court for an injunction under subsection (1), the
Federal Court may, if in the opinion of the Federal Court it is desirable to do so, before
considering the application, grant an interim injunction restraining a person from engaging in
conduct of the kind referred to in that subsection pending the determination of the
application.
(4) The Federal Court may discharge or vary an injunction granted under subsection (1), (2) or
(3).
(5) Where an application is made to the Federal Court for the grant of an injunction restraining a
person from engaging in conduct of a particular kind, the power of the Federal Court to grant
the injunction may be exercised:
(a) if the Federal Court is satisfied that the person has engaged in conduct of that kind—
whether or not it appears to the Federal Court that the person intends to engage again,
or to continue to engage, in conduct of that kind; or
(b) if it appears to the Federal Court that, in the event that an injunction is not granted, it is
likely that the person will engage in conduct of that kind—whether or not the person
has previously engaged in conduct of that kind and whether or not there is an imminent
danger of substantial damage to any person if the first-mentioned person engages in
conduct of that kind.
(6) Where an application is made to the Federal Court for the grant of an injunction requiring a
person to do a particular act or thing, the power of the Federal Court to grant the injunction
may be exercised:
(a) if the Federal Court is satisfied that the person has refused or failed to do that act or
thing—whether or not it appears to the Federal Court that the person intends to refuse
or fail again, or to continue to refuse or fail, to do that act or thing; or
(b) if it appears to the Federal Court that, in the event that an injunction is not granted, it is
likely that the person will refuse or fail to do that act or thing—whether or not the
person has previously refused or failed to do that act or thing and whether or not there
is an imminent danger of substantial damage to any person if the first-mentioned
person refuses or fails to do that act or thing.

Page 158
(7) Where the Electoral Commission makes an application to the Federal Court for the grant of
an injunction under this section, the Federal Court shall not require the Electoral Commission
or any other person, as a condition of the granting of an interim injunction, to give any
undertakings as to damages.
(9) An appeal lies to the High Court from a judgment or order of the Federal Court exercising
jurisdiction under this section.
(10) The powers conferred on the Federal Court under this section are in addition to, and not in
derogation of, any other powers of the Federal Court, whether conferred by this Act or
otherwise.
384 Prosecution of offences
(1) Subject to subsection (2), an offence against subsection 315(3) or section 326 is an indictable
offence.
(2) A court of summary jurisdiction may hear and determine proceedings in respect of an
offence referred to in subsection (1) if the court is satisfied that it is proper to do so and the
defendant and the prosecutor consent.
(3) Where, in accordance with subsection (2), a court of summary jurisdiction convicts a person
of an offence against subsection 315(3) or section 326, the penalty that the court may impose
is:
(a) in the case of an offence against subsection 315(3)—a fine not exceeding $5,000; or
(b) in the case of an offence against section 326—a fine not exceeding $2,000 or
imprisonment for a period not exceeding 12 months, or both.
In view of Section 326 I view it constitute an offence for any candidate/political party to make
arrangements with another candidate/political party as to how to list voting preferences. As such
the conduct of Leaders of all political party involving their comments to put Pauline Hanson One
Nation last, during the 2001 and 2004 federal elections, and asking people to do so was illegal.
http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.one&db=hansard91&dodraft=0
&pageno=228&house=COUNCIL&speech=7136&d
I have given that argument some credence and examined it in detail. I must go to
the process described in the Bill. I am told that the description encompassed in
pages 9 to 14 of the Bill is based upon the Senate system. If that has been put
forward as a simpler system and a reason for the opposition to support its simplistic
basis, that is hardly a cogent argument.
Page 228
I cannot understand how the process described in this Bill could be less complicated
than any other form of election process. I invite honourable members to examine
the extremely complicated formula described in the Bill. Those responsible for the
conduct of elections in local government would pull out their hair if these provisions
were dropped on them overnight.
If simplicity and speed of determining an outcome are to be the criteria on which we

judge the various election processes, the most appropriate system could be that of
equal value voting, as that system has no preferences but the electors vote only for
the number of candidates to be elected; they simply place ticks or crosses in the
boxes alongside sufficient of the candidates to fill the vacancies. Those with the
most votes are elected; the election result is obtained extremely quickly. The
system is easily understood and, consequently, very few informal votes are lodged.
The system ensures adoption of the important central criteria whereby successful
candidates are supported by the majority.
Page 159
Hon. B. A. E. Skeggs interjected.
Hon. R. M. HALLAM -- That system is used very widely indeed: in New Zealand; in
local government in the United States of America; and, as my colleague points out,
in Great Britain. It is also used in Queensland.

At the same time, as some colonies have given the right of voting to those who have not
that right in other colonies, it would be unfair and inequitable to take from any who have
the right, and therefore whatever uniformity is determined upon we shall have to
allow the innovation that no person, man or woman, who has the right to vote shall be
deprived of exercising that right, even so far as the elections to the Federal Parliament
are concerned. I would go the length of saying that everyone who has the right in the
various colonies, if they desire to exercise their franchise, should have the opportunity of
doing so.
Again;
if they desire to exercise their franchise
This clearly provides an option to the elector to vote or not to vote! compulsory voting for this
also is unconstitutional. And, the recent passing of law that closes enrolment when a federal
election is called also is unconstitutional as every elector, once having attained the right to vote
in a State election then has the right to vote (Section 41 of the Constitution) and therefore cannot
be denied to vote in federal elections, as constitutionally there is no registration required to vote
in federal elections as one already has obtained this right when one register with a State for this!

Mr. BARTON.-Is not the right process to alter the word "qualification" to "right"?
Mr. KINGSTON.-Qualification means registration.
Mr. BARTON.-If the person has a legal right, he has to retain that legal right. Supposing
he lost the legal right, but in some mysterious way retained the qualification, it is not
intended that the law should help him? It is only intended that the law should help him if he
has a legal right. I should say that, unless there is some reason given for what we did in
Adelaide, which I do not recollect at this moment, the word "right" would be the proper
word to use.
Mr. ISAACS (Victoria).-In our Electoral Act a difference exists between the right to
vote and the qualification. A man is qualified to become an elector.
Mr. KINGSTON.-This is a limitation on the right to vote.
Mr. OCONNOR.-Suppose a man has a right to vote in some colony by virtue of
property. While the qualification continues to exist you cannot take away that right.
Mr. ISAACS.-Suppose he has the right to vote by virtue of ail elector's right, and that by
some accident be does not renew his elector's right for a day. Is he to be deprived of his
vote because he takes out an elector's right the day afterwards? The qualification exists, but
the right to vote does not.
Mr. BARTON.-Would you mind putting that again?
Mr. ISAACS.-A man is qualified to become an elector. He has not the right to vote until
certain conditions are fulfilled; he may have to register, or be may be struck off the roll
through some accident. His right to vote is gone through some accident, but his
qualification continues. He is a person whose right would not be preserved under this
clause, because it applies to the individual-the elector.

Page 160
Mr. BARTON.-If he loses the right in his own state by his own negligence, is it not right
that he should lose the right also in the Commonwealth?
Mr. ISAACS.-He may lose it without negligence; he may lose it without any fault of his
own. That has been the case with tens of thousands in Victoria.
Further, the conduct to apply preference voting system and by this forcing me as a candidate to
make arrangements with other candidates as to how I shall list preferences in return for them to
do likewise to my benefit itself also is an offence under the act.
A reasonable minded person cannot accept that as a candidate I do not make a bargain with
another candidate as to listing of preference vote on the “how to vote card” and as such the “how
to vote card” in itself must be deemed illegal as being an offence within Section 326 of the
Commonwealth Electoral Act 1918. any election held therefore using the ‘how to vote cards”
cannot be deemed to be FAIR and PROPER where a person like myself refusing to engage in
such kind of bribery conduct then is disadvantaged by those using the “how to vote” system.
In any election I was ever involved in as a candidate I have always opposed to use a “how to
vote” card system and never used this. Electors who vote using the “how to vote card”
unwittingly are participating in a bribery scam.
“How to vote” card are precisely set out to do what Section 326 prohibits, and as such no law
abiding citizen possibly could use the “how to vote card” in that regard.
This further is relevant that a candidate seeking to be listed first on a ‘How to vote card” by this
receiving from the Government financial benefit for each and every first vote (of about $1.95 per
vote, and rising) clearly then also makes the “how to vote” card illegal. This, as by placing a
candidate first for electors to vote then this includes receiving a financial benefit. Indeed, the
political parties generate millions of dollars by this and in fact pre-spend this on political
advertisement in this regard also to deny other candidates, in particular most INDEPENDENT
candidates a FAIR and PROPER election. This, as a candidate not having such financial
resources cannot then splash out on elaborate advertising as the Political parties do.
Where matters such as breaches of Section 326 are of a criminal nature then this is not within the
realm of a Court of Disputed Returns to entertain, even if this directly relates to a Member of the
House being challenged having obtained his/her seat by bribery but would at all times remain a
issue to be determined by a Court of law. The Parliament, so each House never was intended to
have any powers to deal with any Member as to criminal issues as that always was and remained
to be a issue for a Court of law.
If therefore a person was to challenge the validity of a person having been elected based upon
criminal conduct, such as bribery, then where it involves criminal law the appropriate course
would be the ordinary litigation before a Court of law and Section 353 for this never could be
applied.
Likewise so with any challenge to the validity of the Proclamation and the validity of any writ,
they cannot and never were within the powers of a House to determine, as they are governed in
principle by section 32 of the Constitution and therefore remain a “legal issue” beyond the
powers of the Parliament (sitting as a House) and as such it would be unconstitutional if Section
353 is to portray that nevertheless such litigation was to be before the Court of Disputed Returns.
The is no election if there writ is defective, as an election cannot exist unless there is a valid writ
to authorise the holding of an election. Therefore, in that regard also, Section 353 does not come
into play, so to say, unless there are valid writs for holding an election. The Defendant having
challenged the validity of the writs (all writs) upon “legal” grounds prior to the purported federal
election having been held on 10 November 2001 therefore acted in a proper legal manner and his
“petition” directed by the Registrar of the High Court of Australia to be filed in the Federal Court
of Australia, as also the Australian Electoral Commissioner’s lawyers did, then was the proper
course to follow, where they also sought Section 75(v) mandamus and Prohibition orders,

Page 161
something in regard of which the Court of disputed Returns has neither any legal jurisdiction as
to entertain.
It could not be that a “Court of summary jurisdiction” could hear and determine bribery
allegations and if proven then nevertheless the elected member so convicted could not be ousted
by this Court of having not validly been elected. It would be in the powers of this court of
summary jurisdiction then exercising federal jurisdiction to declare the election to be invalid and
hold that therefore the person purportedly elected by using bribery never was elected.
In particular where the Court of Disputed Returns limit the filing of a petition within a certain
period and a bribery case may be heard well long after the closure of any filing of a petition in
the Court of Disputed Returns, it would make a mockery of the legal processes if then a sitting
member can be convicted having used bribery but cannot be ousted by the Court due to lapse of
time.
The real meaning of Section 353 of the CEA1918 “and not otherwise” is that disputes about a
sitting member, not involving legal issues, that used to be dealt with by the relevant House itself
no longer can be dealt with by the Parliament (the House itself) but has to be before the relevant
Court. It does not and could not relate to election disputes governing constitutional and other
legal issues.
Hence, on the ruling of Marshall J, relating to the dispute of the validity of the writs, by which
Marshall J relied upon the meaning of Section 353 of the CEA1918 “and not otherwise” then
this is a term that is unconstitutional, as it is clearly perceived to have a meaning prohibited by
the Constitution to have such a application as it undermines indeed would prevent the High
Court of Australia to exercise its original jurisdiction, such as in regard of Section 75(v) which
the Defendant then used for his petition for mandamus and Prohibition orders, a power the
Parliament never did poses.
326 Bribery
(1) A person shall not ask for, receive or obtain, or offer or agree to ask for, or receive or obtain,
any property or benefit of any kind, whether for the same or any other person, on an
understanding that:
(a) any vote of the first-mentioned person;
(b) any candidature of the first-mentioned person;
(c) any support of, or opposition to, a candidate, a group of candidates or a political party
by the first-mentioned person;
(d) the doing of any act or thing by the first-mentioned person the purpose of which is, or
the effect of which is likely to be, to influence the preferences set out in the vote of an
elector; or
(e) the order in which the names of candidates nominated for election to the Senate whose
names are included in a group in accordance with section 168 appear on a ballot paper;
will, in any manner, be influenced or affected.
Penalty: $5,000 or imprisonment for 2 years, or both.
(2) A person shall not, with the intention of influencing or affecting:
(a) any vote of another person;
(b) any candidature of another person; or
(c) any support of, or opposition to, a candidate, a group of candidates or a political party
by another person;
(d) the doing of any act or thing by another person the purpose of which is, or the effect of
which is likely to be, to influence the preferences set out in the vote of an elector; or

Page 162
(e) the order in which the names of candidates for election to the Senate whose names are
included in a group in accordance with section 168 appear on a ballot paper;
give or confer, or promise or offer to give or confer, any property or benefit of any kind to
that other person or to a third person.
Penalty: $5,000 or imprisonment for 2 years, or both.
(3) This section does not apply in relation to a declaration of public policy or a promise of public
action.
327 Interference with political liberty etc.
(1) A person shall not hinder or interfere with the free exercise or performance, by any other
person, of any political right or duty that is relevant to an election under this Act.
Penalty: $1,000 or imprisonment for 6 months, or both.

(2) A person must not discriminate against another person on the ground of the making by the
other person of a donation to a political party, to a State branch or a division of a State
branch of a political party, to a candidate in an election or by-election or to a group:
(a) by denying him or her access to membership of any trade union, club or other body;
(b) by not allowing him or her to work or to continue to work;
(c) by subjecting him or her to any form of intimidation or coercion;
(d) by subjecting him or her to any other detriment.
Penalty:
(a) if the offender is a natural person—$5,000 or imprisonment for 2 years, or both; or
(b) if the offender is a body corporate—$20,000.
If this Court is deemed to have legal jurisdiction then has it jurisdiction to declare writs
invalid?
This Court, if it can invoke legal jurisdiction, would be entitled to declare a writ invalid where it
is a defective writ. However, if the issue is a constitutional issue then in view of the 4 December
2002 orders to transfer the matters to the High Court of Australia then the Court could not
address such constitutional issues.
If this Court is deemed to have legal jurisdiction then has it jurisdiction to declare elections
having been invalid?
Where the Court was to declare any writ invalid due to being defective then this implies that the
election held by such a defective writ was invalid.
Did the Federal Court of Australia have legal jurisdiction regarding electoral matters?
Yes!
Page 163
The proceedings that were before the Federal Court of Australia were two fold, one within
Section 383 of the Commonwealth Electoral Act 1918 and the other was within Section 75(v) of
the Constitution for Prohibition and Mandamus. This Section 75(v) issue was ignored by the
Court even so the Australian Electoral Commission lawyer themselves did acknowledge that I
pursued mandamus and prohibition orders.
HANSARD records the following Constitutional Convention 22 April 1897 [page 1150]
Mr. BARTON: I have to propose a new clause to follow clause 48 in this form:
Until the Parliament otherwise provides all questions of disputed elections
arising in the Senate or House of Representatives shall be determined by a
Court exercising federal jurisdiction.
We have not said "the High Court" here, because there is power in the
Constitution to invest any court with federal jurisdiction, so that this clause will
work in this convenient way that the Court of a State invested with federal
jurisdiction may determine such a matter in any States
Section 353 of the Commonwealth Electoral Act 1918 is very misunderstood and misinterpreted
as to its true meaning. It is therefore the source of miscarriages of justice.
QUOTE
Kelly v Australian Electoral Commission S250/2001 (31 October 2001)
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S250 of 2001
Between-
NED KELLY
Plaintiff
and
AUSTRALIAN ELECTORAL COMMISSION
Respondent
Application for expedition
GLEESON CJ
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON WEDNESDAY, 31 OCTOBER 2001, AT 10.16 AM
Copyright in the High Court of Australia

Page 164
MR N. KELLY appeared in person.
MS R.M. HENDERSON: If the Court pleases, I appear for the respondent. (instructed by
the Australian Government Solicitor)
HIS HONOUR: Yes, Mr Kelly.
MR KELLY: Your Honour, this is an application for an expedited hearing in relation to a

writ and a statement of claim that has been filed in the Court. I have the benefit of the
respondent's outline to the Court and essentially they are saying to the Court there are two
issues that have been raised. I could define the first issue as one of nomination, that being
my nomination and my fellow independent, Mr Davy. The second issue, Chief Justice, is
the issue of the constitutional validity of section 169A(3).
HIS HONOUR: Just excuse me for a moment.
MR KELLY: Sure.
HIS HONOUR: Yes.
MR KELLY: The third matter, Chief Justice, is also the question of the constitutionality
of a further subsection within the Act and, just bear with me, that section would be 169(4).
I mistakenly put the incorrect section in my statement of claim and I will be seeking leave
to amend that. But that is the nub of the three matters that the application is concerned
about. The respondent has indicated that they are not opposed to having the matter heard
on an expedited basis, although they did submit to the Court that it ought to be transferred,
as I understand it, under section 44 of the Judiciary Act to the Federal Court for hearing. I
opposed such a move, Chief Justice, on the basis that I believe that there are constitutional
issues that fall squarely within the Court's original jurisdiction.
HIS HONOUR: I am afraid before we get to any constitutional issues there are some
factual issues about what actually went on, although the precise scope of those issues is not
clear at the moment because your statement of claim is defective in form. Your statement
of claim in paragraph 5 refers to "The actions" of certain people, but it does not say what
the relevant actions are. If you contend that there were acts or omissions on the part of
officers of the Australian Electoral Commission that constitute a contravention of the
statute, as you appear to say in paragraph 5, then you are going to have to state what the
acts or omissions upon which you rely are.
Now, in an affidavit that you have filed there is some indication of the sorts of things that
you might want to allege, but they are going to have to be alleged in a statement of claim.
MR KELLY: Yes, I accept that.
HIS HONOUR: And when they are alleged in a statement of claim, we will then need to
know, by reference to the defence, what dispute there is about the allegations that you
make.
MR KELLY: I accept that.

Page 165
HIS HONOUR: One of the reasons that I would be in difficulty ordering an expedited
hearing today is that the matter is not ready for hearing. The statement of claim is not in a
proper form and we do not know the area of factual dispute between you and the defendant.
Have you noticed what appears in paragraph 11 of the outline of the defendant's
submissions, particularly in the last three lines of paragraph 11?
MR KELLY: Yes, I did, Chief Justice, although I received those after midday yesterday
and I was not in a position to do much about them before this morning, but I have taken
cognisance of those, yes.
HIS HONOUR: Well, do you contend that you have "received incorrect advice from one
or more officers of the Australian Electoral Commission"?
MR KELLY: That will be one of the grounds, Chief Justice, yes.
HIS HONOUR: Then whatever court deals with this matter will need to know what
exactly your contentions are in that regard and what the officers of the Australian Electoral
Commission might have to say about your contentions. They might disagree with what you
say happened.
MR KELLY: It appears to be they may.
HIS HONOUR: Yes. Is there anything else you want to say?
MR KELLY: I accept what is said. There is no question that the statement of claim is
deficient and I would seek a - - -
HIS HONOUR: Does that not tend to suggest that the most likely way to get a reasonably
early hearing of this matter is for it to be remitted to the Federal Court?
MR KELLY: Well, I cannot comment on that, Chief Justice. I am not really sure of the
procedures of the Federal Court, but I applied to the High Court because where it is a
matter of constitutional interpretation I understood it to be solely within the jurisdiction of
this Court. If I am incorrect in that, I accept that, but that was the reason for the application
to this Court.
HIS HONOUR: Is there anything else you want to say?
MR KELLY: Not unless I can assist your Honour.
HIS HONOUR: Ms Henderson, what do you say?
MS HENDERSON: Your Honour, I have nothing to add to the matters which are in the
outline.
HIS HONOUR: So far as you are aware, is there any reason why the Federal Court would
not have jurisdiction to decide all the matters in issue in this case?
MS HENDERSON: To my knowledge, your Honour, there would be no barrier to them

doing so.

Page 166
HIS HONOUR: As I indicated to Mr Kelly, the matter that weighs heavily with me at the
moment is that there may well be an area of factual dispute as to what actually went on
between Mr Kelly and others and officers of the Electoral Commission.
MS HENDERSON: With respect, your Honour is quite right in apprehending that would
be the case. I understand Mr Kelly had telephone contact with a number of personnel of the
Commission at various stages close to the events on 18 October and it may be that there
were things said to him at some stage in any of those conversations which will become
relevant to the court's consideration of the matter.
HIS HONOUR: Thank you.
MS HENDERSON: If your Honour pleases.
HIS HONOUR: Mr Kelly, subject to anything else you want to put me, I am minded at the
moment to take the course suggested by the Commission and that is to remit the matter to
the Federal Court.
MR KELLY: Yes. Well, it appears then no question there will be factual dispute. I mean, I
did think initially that there perhaps would not be but it is quite clear perhaps there now
will be. So that is a barrier, I suppose, in terms of this Court, I suppose, hearing any other
constitutional issue. I accept that as well. I did originally think there was not going to be a
factual dispute, but these things have a life of their own.
HIS HONOUR: It appears from what has been put to me by way of submission, orally and
in writing, by the plaintiff and the defendant that there may well be areas of factual dispute
in this case. However, as I pointed out to the plaintiff, without expressing any final view on
the matter, the statement of claim filed appears to be defective in form, at least insofar as
paragraph 5 of the statement of claim refers, without any particularity, to actions on the
part of officers of the defendant which are said to involve contraventions of legislation and
otherwise to involve denial of rights claimed by the plaintiff.
As appears from paragraph 11 of the outline of the defendant's submissions, when further
particularity of the allegations made by the plaintiff concerning acts or omissions on the
part of officers of the defendant is produced, it may well be that the defendant will want to
contradict those allegations and lead evidence in rebuttal of them. I might add in that
respect that some of the evidence contained in the affidavit filed by the plaintiff appears to
be hearsay in form and that is a matter that might need to be given further consideration
when it comes to proving the facts on which the plaintiff relies. In that respect, I have in
mind, for example, paragraph 21 of the affidavit.
What I have before me at the moment is an application for an expedited hearing of the
plaintiff's action. The action is not ready for hearing. As I indicated, the statement of claim
is not in proper form, no defence has been filed and there well may be evidence that needs
to be prepared on both sides of the case. However, counsel for the defendant has submitted
that the case appears to raise no issue which is not capable of resolution in the Federal
Court and that, partly because of the potential area of factual dispute that may arise, the
best way to deal with the matter would be to remit the whole matter to the Federal Court
under section 44 of the Judiciary Act.

Page 167
Having heard what both sides have had to say on the subject, I think that that is the most
appropriate course to take and I make an order remitting the action to the Federal Court of
Australia. The costs of today's proceedings will be a matter to be dealt with by the Federal
Court in its discretion in due course.
Is there anything further?
MS HENDERSON: If your Honour pleases, we have taken the step of preparing some
draft orders. There was one further order that we seek in that document.
HIS HONOUR: Have you shown those to Mr Kelly?
MS HENDERSON: Yes, your Honour.
HIS HONOUR: Have you any objection to any of those orders, Mr Kelly?
MR KELLY: Not in the light of your order, Chief Justice.
HIS HONOUR: Thank you. I make an order formally in terms of the document initialed
by me, dated with today's date and placed with the papers.
MS HENDERSON: If the Court pleases.
HIS HONOUR: Call the next matter, please.
AT 10.31 AM THE MATTER WAS CONCLUDED
END QUOTE
QUOTE
Kelly v Australian Electoral Office [2001] FCA 1557 (5 November 2001)
Last Updated: 7 November 2001
FEDERAL COURT OF AUSTRALIA
Kelly v Australian Electoral Office HYPERLINK

"http://www.austlii.edu.au/au/cases/cth/federal_ct/2001/1557.html" [2001] FCA 1557
EDWARD KELLY v AUSTRALIAN ELECTORAL OFFICE
N 1480 OF 2001
EMMETT J
5 NOVEMBER 2001
SYDNEY

Page 168
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 1480 OF 2001
BETWEEN: EDWARD KELLY
APPLICANT
AND:
AUSTRALIAN ELECTORAL OFFICE
RESPONDENT
JUDGE: EMMETT J
DATE OF ORDER: 5 NOVEMBER 2001
WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
The application for an expedited hearing be refused.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 1480 OF 2001
BETWEEN: EDWARD KELLY
APPLICANT
AND:
AUSTRALIAN ELECTORAL OFFICE
RESPONDENT
JUDGE: EMMETT J
DATE: 5 NOVEMBER 2001
PLACE: SYDNEY
REASONS FOR JUDGMENT

Page 169
1 On 31 October 2001 the Chief Justice of the High Court remitted proceeding number
S250 of 2001 to this Court. In that proceedings the plaintiff sought an order of mandamus
against the Australian Electoral Commission ("the Commission") requiring acceptance and
declaration of his nomination, and prohibition of the holding of "the New South Wales
Senate election" until implementation of the order of mandamus. He also sought an
injunction restraining the Commission from holding the election of senators "to the New
South Wales Senate" until the final determination of the matters raised in the proceeding. In
addition he sought a declaration that HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/s169a.html" s 169A (3)
of the HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/"
Commonwealth Electoral Act 1918 ("the Act") is invalid. That section deals with the
form of the ballot paper for a Senate election. It provides that a candidate may not make a
request to be described as independent, as well as making a joint request with another
candidate that their names be grouped in the ballot paper.
2 At a directions hearing today, the plaintiff has indicated that he no longer presses for
mandamus. He seeks to file an amended statement of claim in which the relief sought is:
* an injunction restraining the Commission from the conduct of the ballot for the Senate
election for New South Wales until final determination of the matter;
* a declaration that his nomination substantially complied with the HYPERLINK

"http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/" Commonwealth
Electoral Act ;
* a declaration that the writ for the Senate of New South Wales was issued
unconstitutionally and is a nullity;
* orders striking out HYPERLINK

"http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/s169.html" ss 169 (4)
and HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/s169a.html" 169A (3) of
HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/" the
Act as unconstitutional; and
* exemplary damages and costs.
3 When the matter came before me earlier this afternoon, the plaintiff initially indicated
that he wished to seek interlocutory relief. That application was then abandoned and the
plaintiff sought that the matter be expedited to the extent of a final hearing prior to
Saturday 10 November, when the election is to be held. That application is opposed by the
Commission on the basis that there is no need for an expedited hearing of the issues that
are raised by the proceeding. The Commission contends that there is no jurisdiction in this
Court to restrain the holding of the election on the ground that there is some invalidity
involved in the election, such as the wrongful rejection by the Commission or its officers of
the applicant's nomination.
4 HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/s353.html" Section
353 (1) of HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/" the Act provides that
Page 170
"[t]he validity of any election or return may be disputed by petition addressed to the Court
of Disputed Returns and not otherwise". Under HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/s354.html" s 354 (1) the
High Court of Australia is to be the Court of Disputed Returns and is to have jurisdiction
either to try a petition or refer it for trial to the Federal Court of Australia.
5 In my view, the effect of those provisions is to provide that the only method whereby the
validity of the Senate election to be held on 10 November 2001 can be disputed or called in
question is by means of a petition to the High Court after the election. Even if this
proceeding were expedited to the extent of a final hearing before Saturday, no order could
be made restraining the holding of the election on the ground that the election would be
invalid. I cannot perceive any other basis upon which the Court would intervene in the
holding of the election.
6 The proposed amended statement of claim raises other questions as to the

constitutionality and validity of the election. The same arguments seem to me to be
applicable to the contention that the writ issued for the Senate election for New South
Wales is defective. The plaintiff's claim is that the Governor of New South Wales is not
constitutionally appointed. The plaintiff claims that no Governor of New South Wales has
been validly appointed since the Parliament of Westminster passed the British Nationality
Act 1948. If that argument be correct, the validity of the election would be called into
question by means otherwise than that prescribed by Part XXII of the HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/" Commonwealth
Electoral Act .
7 No argument has been advanced as to why any claim for damages should be expedited.
In my view there is no reason why any claim for damages should be expedited. In the
circumstances, I am not prepared to accede to the request for an expedited hearing of this
proceeding.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons
for Judgment herein of the Honourable Justice Emmett.
Associate:
Dated: 7 November 2001
Counsel for the Plaintiff: The plaintiff appeared in person
Counsel for the Respondent: Mr S Gageler with Ms R M Henderson
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 5 November 2001
END QUOTE
Again;

Page 171
4 HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/s353.html" Section
353 (1) of HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/" the Act provides that
"[t]he validity of any election or return may be disputed by petition addressed to the Court
of Disputed Returns and not otherwise". Under HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/s354.html" s 354 (1) the
High Court of Australia is to be the Court of Disputed Returns and is to have jurisdiction
either to try a petition or refer it for trial to the Federal Court of Australia.
5 In my view, the effect of those provisions is to provide that the only method whereby the
validity of the Senate election to be held on 10 November 2001 can be disputed or called in
question is by means of a petition to the High Court after the election. Even if this proceeding
were expedited to the extent of a final hearing before Saturday, no order could be made
restraining the holding of the election on the ground that the election would be invalid. I cannot
perceive any other basis upon which the Court would intervene in the holding of the election.
The issue of Australian citizenship
http://www.aec.gov.au/_content/What/media_releases/1998/sep/franchise.htm
The Franchise ‘Right to Vote’ Timetable

16 September 1998
On October 3 over 12 million Australians will be eligible to vote in the 1998 federal
election.
In Australia, citizens have the right and responsibility to enrol and vote when they each the age
of eighteen years. In fact is it compulsory to do so.
But is hasn’t always been so - compulsory enrolment wasn’t introduced until 1911 and
compulsory voting wasn’t introduced until 1924.
For one quarter of the history of white settlement in Australia nobody voted, and this was for the
simple fact that there were no parliaments to vote for.
The first parliamentary elections were in 1843 for the New South Wales Legislative
Council. But this was an election that not everyone could vote in – only men with land
valued at 200 pounds or a house worth 20 pounds annually had the right to vote.
For the rest of the century following this election, and even for a time before, there were
long struggles over who could vote and what they could vote for. These movements to
increase the franchise gained notable victories in the years following the first election in
Australia.
In 1856 the right to vote was granted to all male British subjects over the age of 21 in
South Australia. The other States followed in the years between 1857 and 1896.
South Australia again led the way when in 1894 women over 21 were given the right to
vote. The other States granted women this right in the years between 1899 and 1908.
By 1902 most men and women were able to vote at federal elections. However, what were
referred to as ‘Aboriginal natives’ of Australia, Asia, Africa or the Pacific Islands were
excluded from enrolment and voting.

Page 172
In 1903 the first federal election under federal law was held with a 46.86% voter turnout.
In 1925 the first federal election with compulsory voting was held with 91.31% voter
turnout.
It was 1949 when Aboriginal people were given the right to enrol and vote at federal
elections, and then only as long as they were entitled to enrol for State elections or had
served in the defence forces. In 1962 voluntary enrolment and voting at federal elections
was extended to all Aboriginal people.
In 1973 the qualifying age for enrolment, voting and candidature for all federal elections
was lowered from 21 to 18.
It was in 1984 that enrolment and voting were made compulsory for Aboriginal people.
It was also in 1984 that the qualifications to be eligible to vote was changed to Australian
citizenship. Now the only non-Australian citizens entitled to enrol and vote are those
British subjects who were on the electoral roll on 25 January 1984, the time at which the
eligibility changed.
One of the first obstacles the Commonwealth Director of Public Prosecutions has is to prove that
I am an “Australian citizen” within the meaning as referred to by the Framers of the
Constitution, as to poses the right to vote in federal elections, rather then to whatever is made out
to be by the Federal legislation. If in fact I am not an “Australian citizen”, as to exercise any
political powers such as “franchise” then it is irrelevant if the election was constitutionally valid
or not (as this is also in contest) as without political right to vote there can be no jurisdiction
being invoked for this Court to entertain any charges against me.
“Citizenship” is used only once in the Constitution as the draft had other references to
“citizenship” removed as to avoid misconceptions as to the constitutional powers or the lack
thereof by the Federal Parliament. (Hansard records Constitutional Convention Debates 1891,
1897 and 1898)
The terms “citizen of the Commonwealth.”, “Australian citizen”, federal citizen”, “State
citizen” were all used in an interchanging set of words as to mean “subject of the Queen”. This as
after all any person within the realm of the queen (King) is subject to the laws of the British
Parliament. It does not matter if they were ‘aliens”, “natural born subjects” or “naturalized
subjects”, as they were/are all subject to the laws enacted by the Parliaments under the Imperial
powers.
The meaning of a word or words can they be altered because of international perceptions, etc.;
Al-Kateb v Godwin [2004] HCA 37, 6-8-2004
66. Most of the rules HYPERLINK "http://www.austlii.edu.au/cgi-

bin/disp.pl/au/cases/cth/high%5fct/2004/" \l "fn63" [64] now recognised as rules of
international law are of recent origin. If Australian courts interpreted the Constitution by
reference to the rules of international law now in force, they would be amending the
Constitution in disregard of the direction in s 128 of the Constitution. Section 128
declares that the Constitution is to be amended only by legislation that is approved by a
majority of the States and "a majority of all the electors voting". Attempts to suggest that
a rule of international law is merely a factor that can be taken into account in interpreting
the Constitution cannot hide the fact that, if that is done, the meaning of the Constitution
is changed whenever that rule changes what would otherwise be the result of the case.
The point is so obvious that it hardly needs demonstration. But a simple example will
suffice to show the true character of what is done if courts take a post-1900 rule of

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international law into account. Immediately before the rule was recognised, our
Constitution had meanings that did not depend on that rule. Either the rule of
international law has effect on one or more of those meanings or it has no effect. If it has
an effect, its invocation has altered the meaning of the Constitution overnight. As a result,
a court that took the rule into account has amended the Constitution without the authority
of the people acting under s 128 of the Constitution. It has inserted a new rule into the
Constitution. Take this case. The issues are whether ss 189, 196 and 198 are laws with
respect to aliens or are exercises by the Parliament and not the federal courts of the
judicial power of the Commonwealth. If this Court had to take a rule of international law
into account in interpreting those powers, the rule would either confirm what was already
inherent in the powers or add to or reduce them. If the international rule is already
inherent in the power it is irrelevant. If it is not, its invocation alters the constitutional
meaning of "aliens" or "judicial power of the Commonwealth" or both.
67. Many constitutional lawyers - probably the great majority of them - now accept that
developments inside and outside Australia since 1900 may result in insights concerning
the meaning of the Constitution that were not present to earlier generations. Because of
those insights, the Constitution may have different meanings from those perceived in
earlier times. As Professor Ronald Dworkin has often pointed out, the words of a
Constitution consist of more than letters and spaces. They contain propositions. And,
because of political, social or economic developments inside and outside Australia, later
generations may deduce propositions from the words of the Constitution that earlier
generations did not perceive. Windeyer J made that point persuasively in Victoria v The
Commonwealth HYPERLINK "http://www.austlii.edu.au/cgi-
bin/disp.pl/au/cases/cth/high%5fct/2004/" \l "fn64" [65] . But that is a very different
process from asserting that the Constitution must be read to conform to or so far as
possible with the rules of international law. As I earlier pointed out, reading the
Constitution up or down to conform to the rules of international law is to make those
rules part of the Constitution, contrary to the direction in s 128 that the Constitution is to
be amended only in accordance with the referendum process.
68. The issue in Polites HYPERLINK "http://www.austlii.edu.au/cgi-
bin/disp.pl/au/cases/cth/high%5fct/2004/" \l "fn65" [66] shows what would be the
effect of reading the Constitution to conform with the rules of international law. It was
arguably a rule of international law in 1945 that aliens could not be compelled to serve in
the military forces of a foreign state in which they happened to be. Whether or not such a
rule existed HYPERLINK "http://www.austlii.edu.au/cgi-
bin/disp.pl/au/cases/cth/high%5fct/2004/" \l "fn66" [67] , this Court refused to read
the constitutional powers with respect to "defence" HYPERLINK
"http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high%5fct/2004/" \l "fn67"
[68] and "aliens" HYPERLINK "http://www.austlii.edu.au/cgi-
bin/disp.pl/au/cases/cth/high%5fct/2004/" \l "fn68" [69] as subject to such a rule. If
the Court had accepted the argument of the plaintiff in Polites, the international law rule
would have become a constitutional rule contrary to s 128 of the Constitution.
69. Failure to see the difference between taking into account political, social and economic
developments since 1900 and taking into account the rules of international law is the
error in the approach of those who assert that the Constitution must be read in conformity
with or in so far as it can be read conformably with the rules of international law. Rules
are specific. If they are taken into account as rules, they amend the Constitution. That
conclusion cannot be avoided by asserting that they are simply "context" or elucidating
factors. Rules are too specific to do no more than provide insights into the meanings of
the constitutional provisions. Either the rule is already inherent in the meaning of the
provision or taking it into account alters the meaning of the provision. No doubt from
Page 174
time to time the making or existence of (say) a Convention or its consequences may
constitute a general political, social or economic development that helps to elucidate the
meaning of a constitutional head of power. But that is different from using the rules in
that Convention to control the meaning of a constitutional head of power. Suppose the
imposition of tariffs is banned under a World Trade Agreement. If that ban were taken
into account - whether as context or otherwise - in interpreting the trade and commerce
power HYPERLINK "http://www.austlii.edu.au/cgi-
bin/disp.pl/au/cases/cth/high%5fct/2004/" \l "fn69" [70] , it would add a new rule to
the Constitution. It would require reading the power to make laws with respect to trade
and commerce as subject to the rule that it did not extend to laws that imposed tariffs.
Such an approach, in the words of Dixon J, cannot be "countenanced" HYPERLINK
"http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high%5fct/2004/" \l "fn70"
[71] .
Again;
If this Court had to take a rule of international law into account in interpreting those
powers, the rule would either confirm what was already inherent in the powers or add to
or reduce them. If the international rule is already inherent in the power it is irrelevant. If
it is not, its invocation alters the constitutional meaning of "aliens" or "judicial power of
the Commonwealth" or both.
The point is that albeit International law of late cannot be used to determine the powers and
limitations of constitutional provisions, International law as existing at the time of Federation can
be used to explain the intentions of the Framers, this, as the Framers themselves were debating
the issue of how it applied under international law. Further, International law provisions that
came after the Federation can not be applied to expand or otherwise alter the true intentions of
the Framers of the Constitution but may be an aid to the scope of legislation passed since
Federation. As such, it does not impinge upon constitutional provisions at all, but is to be
considered as to what was applicable at the time of constitutional valid legislated provisions how
they could be applicable within the framework of the Constitution.
For example, the issue of conservation;
Constitution Convention Debates;
Sub-clause 27 (River navigation with respect to the common purposes of two or more states
or parts of the commonwealth), 689. Amendment by Sir Samuel Griffith to provide for the
conservation of water, 690; withdrawn, and sub-clause agreed to, 692.

Mr. MCMILLAN: There is another question which, to a certain extent, I think is
connected with my contention in favour of a strong central government. There is in the
centre of this great continent, which you may call Central Australia, a large area of land
that adjoins three or four colonies. From its peculiar position, from the smallness of its
rainfall, it will have to be dealt with in the future separately, from the other portions of
Australia. It is not likely with an enterprising people such as we have in these colonies,
with every obstacle going down before the race to which we belong that we shall allow the
and wastes of the centre of this continent to remain as they are for many years to come.
There is no doubt that a system of conservation of water and irrigation must be introduced
into that great tract, and if that is done at all it must be done by a united Australia.
Consequently there should be some machinery in the central government by which the

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country in the centre of this continent maybe dealt with differently from other parts of the
continent.
See Section 100 of the Constitution that prohibits to deny “reasonable use” of water. What the
framers then discussed was that trade along the rivers (navigation, etc) required the
Commonwealth to regulate the use of water drawn from it, but it could not deny “reasonable use’
of water. What “reasonable use” stands for was to be assessed by the inter State Commission.
However, the general “conservation” of water was held to be a State issue!
To be able to consider if the Court can or cannot invoke jurisdiction, it requires to ascertain if the
subject matter of alleged failure to comply with Commonwealth law (Section 245 of the
Commonwealth Electoral Act 1918) in fact is applicable. After all, if the relevant provision is
not applicable then the Commonwealth Director of Public Prosecutions is pursuing a vexatious
charges and the Court cannot entertain the charges or either one of them. .
Mr. THYNNE:
The union of these colonies must take place in either one or two ways, namely, either by a
unification under one all-powerful parliament, or by a federation which gives to the central
federal parliament certain limited powers and reserves to the other parliaments all other
powers. As I think we may be in danger of overlooking some of the first principles
connected with federation, I may be pardoned if I briefly define some of the characteristics
of a federation. I shall quote from Mr. Dicey's recent work, which is very clear in its
language. He says:
One of the characteristics of a federation is that the law of the constitution must be
either 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.
“The oath of a justice of this court is ' to do right to all manner of people according to law'
Our sworn duty is to the law itself and to the organic nature of the constitution first of all.
If, then, we find the law to be plainly in conflict with what we or any of our
predecessors errornously thought it to be, we have, as I conceive no right to choose
between giving effect to the law, and maintaining an incorrect interpretation, It is not,
in my opinion, better that the court should be persistently wrong than that it should
be ultimately right..
Whatever else may be said with respect to previous decisions - and it is necessary here to
consider the principals upon which a court should act in particular cases - so much at least
emerges as is undoubtedly beyond challenge, that where a former decision is clearly wrong,
and there are no circumstances countervailing the primary duty of giving effect to the law
as the court finds it, the real opinion of the court should be expressed.”
It is a matter of fact that I was issued with a “Certificate of Australian Citizenship” No.
ME9401317C on the 28th day of March 1994. I do not believe that the Commonwealth Director
of Public Prosecutions contest the issue of this certificate.
The certificate states;
QUOTE

Page 176
COMMONWEALTH OF AUSTRALIA
Australian citizenship Act 1948
Certificate of Australian Citizenship
GERRIT HENDRIK SCHOREL

Born on 7 th June 1947
having applied for a Certificate of Australian Citizenship, having satisfied the conditions
prescribed by the Australian Citizenship Act 19448 for the grant of such Certificate
and having undertaken to fulfil the responsibilities of a citizen.
I the Minister for Immigration and Ethnic Affairs,

Grant this Certificate of Australian citizenship to the abovenamed applicant who is
an Australian citizen on and after 28 th March 1994.
Issued by the authority

Of the Minister
For Immigration and
Ethnic Affairs.
END QUOTE
By marriage, on 28 March 2001, I became Gerrit Hendrik Schorel-Hlavka
Talbot v. Janson, 3 U.S. 133 (1795)
Yet, it is to be remembered, and that whether in its real origin, or in its artificial state,
allegiance, as well as fealty, rests upon lands, and it is due to persons. Not so, with
respect to Citizenship, which has arisen from the dissolution of the feudal system and is
a substitute for allegiance, corresponding with the new order of things. Allegiance and
citizenship, differ, indeed, in almost every characteristic. Citizenship is the effect of
compact; allegiance is the offspring of power and necessity. Citizenship is a political tie;
allegiance is a territorial tenure. Citizenship is the charter of equality; allegiance is a
badge of inferiority. Citizenship is constitutional; allegiance is personal. Citizenship is
freedom; allegiance is servitude. Citizenship is communicable; allegiance is repulsive.
Citizenship may be relinquished; allegiance is perpetual. With such essential
differences, the doctrine of allegiance is inapplicable to a system of citizenship; which it
can neither serve to controul, nor to elucidate. And yet, even among the nations, in
which the law of allegiance is the most firmly established, the law most pertinaciously
enforced, there are striking deviations that demonstrate the invincible power of truth,
and the homage, which, under every modification of government, must be paid to the
inherent rights of man.
And
These are tacit acknowledgments of the right of expatriation, vested in the individuals; for,
though they are instances of adopting, not of discharging, subjects; yet, if Great Britain
would (ex gratia) protect a Russian naturalized by service, in her fleet, it is obvious that
she cannot do so without recognizing his right of expatriation to be superior to the
Empress's right of allegiance. But it is not only in a negative way, that these deviations in
support of the general right appear. The doctrine is, that allegiance cannot be due to two

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sovereigns; and taking an oath of allegiance to a new, is the strongest evidence of
withdrawing allegiance from a previous, sovereign.
And
The power of naturalizing has been vested in several of the state governments, and it
now exists in the general government; but the power to restrain or regulate the right
of emigration, is no where surrendered by the people; and it must be repeated, that,
what has not been given, ought not to be assumed. It may be said, however, that such
a power is necessary to the government, and that it is implied in the authority to
regulate the business of naturalization. In considering these positions, it must be
admitted, that although an individual has a right to expatriate himself, he has not a
right to seduce others from their country. Hence, those who forcibly, or seductively,
take away a citizen, commit an act, which [p*143] forms a fair object of municipal
police; and a conspiracy or combination, to leave a country, might, likewise be
properly guarded against. Such laws would not be an infraction of the natural right of
individuals; for, the natural rights of man are personal; he has no right to will for
others, and he does so, in effect, whenever he moves the mind of another to his
purpose, by fear, by fraud, or by persuasion.
And
But naturalization and expatriation are matters of internal police; and must depend
upon the municipal law, though they may be illustrated and explained by the
principles of general jurisprudence. It is true, that the judicial power extends to a
variety of objects; but the Supreme Court is only a branch of that power; and
depends on Congress for what portion it shall have, except in the cases of
ambassadors, &c. particularly designated in the constitution. The power of declaring
whether a citizen shall be entitled in any form to expatriate himself, or, if entitled, to
prescribe the form, is not given to the Supreme Court; and, yet, that power will be
exercised by the court, if they shall decide against the expatriation of Captain Talbot.
Let it not, after all, be understood, that the natural, loco-motive, right of a free citizen,
is independent of every social obligation. In time of war, it would be treason to
migrate to any enemy's country and join his forces, under the pretext of expatriation.
1 Dall. Rep. 53, and, even in time of peace, it would be, reprehensible (say the writers
on the law of nature and nations) to desert a country labouring under great
calamities. So, if a man acting under the obligations of an oath of office, withdraws to
elude his responsibility, he changes his habitation, but not his citizenship. It is not,
however, private relations, but public relations; private responsibility, but public
responsibility; that can affect the right: for, where the reason of the law ceases, the
law itself must, also, cease. There is not a private relation, for which a man is not as
liable by local, as by natural, allegiance;--after, as well as before, his expatriation: He
must take care of his family, he must pay his debts, wherever he resides; and there is
no security in restraining emigration, as to those objects, since, with respect to them,
withdrawing is as effectual, as expatriating. Nor is it enough to impair the right of
expatriation, that other nations are at war; it must be the country of the emigrant. No nation
has a right to interfere in the interior police of another: the rights and duties of citizenship,
to be conferred, or released, are matter of interior police; and yet, if a foreign war could
affect [p*145] the question, every time that a fresh power entered into a war, a new
restraint would be imposed upon the natural rights of the citizens of a neutral country;
which, considering the constant warfare that afflicts the world, would amount to a
perpetual controul. But the true distinction appears to be this:--The citizens of the neutral
country may still exercise the right of expatriation, but the belligerent power is entitled to
say, "the act of joining our enemies, flagrante bello, shall not be a valid act of
expatriation." By this construction, the duty a nation owes to itself, the sacred rights of the
Page 178
citizen, the law of nations, and the faith of treaties, will harmonize, though moving in
distinct and separate courses. To pursue the subject one step further: A man cannot owe
allegiance to two sovereigns. 1Bl. Com. He cannot be citizen of two republics. If a man
has a right to expatriate, and another nation has a right and disposition to adopt him,
it is a compact between the two parties, consummated by the oath of allegiance. A
man's last will, as to his citizenship, may be likened to his last will, as to his estate; it
supersedes every former disposition; and when either takes effect, the party, in one
case, is naturally dead, in the other, he is civilly dead;--but in both cases, as good
Christians and good republicans, it must be presumed that he rises to another, if not
to a better, life and country. An act of expatriation, likewise, is susceptible of various
kinds of proof. The Virginia law has selected one, when the state permits her citizens
to depart; but it is not, perhaps, either the most authentic, or the most conclusive that
the case admits. It may be done obscurely in a distant county court; and even after
the emigrant is released from Virginia, to what nation does he belong? He may have
entered no other country, nor incurred any obligation to any other sovereign. Not
being a citizen of Virginia, he cannot be deemed a citizen of the United States. Shall he
be called a citizen of the world; a human balloon, detached and buoyant in the
political atmosphere, gazed at wherever he passes, and settled wherever he touches?
But, on the other hand, the act of swearing allegiance to another sovereign, is
unequivocal and conclusive; extinguishing, at once, the claims of the deserted, and
creating the right of the adopted, country. Sir William Blackstone, therefore, considers it
as the strongest, though an ineffectual, effort to emancipate a British subject from his
natural allegiance; and the existing constitution of France declares it expressly to be a
criterion of expatriation. The same principle operates, when the naturalization law of the
United States provides, that the whole ceremony of initiation shall be performed in the
American courts; and if it is here considered as the proof of adoption, shall it not be
considered, also, as the test of expatriation? If America [p*146] makes citizens in that way,
shall we not allow to other nations, the privilege of the same process? In short, to admit
that Frenchmen may be made citizens by an oath of allegiance to America, is, virtually, to
admit, that Americans may be expatriated by an oath of allegiance to France. After this
discussion of principles, forming a necessary basis for the facts in this case, it is insisted,
1st, That Talbot was a naturalized citizen of the French Republic at the time of receiving a
commission to command the privateer, and of capturing the Magdalena. He left this
country with the design to emigrate; and the act of expatriation must be presumed to be
regular, according to the laws of France, since it is certified by the municipality of Point a
Pitre, by the French Consul, and by the Governor of Guadaloupe. 2d, That Redick was
also, a naturalized citizen of the French Republic, when he purchased the vessel, and
received a commission to employ her as a privateer.
And
Ballard was a citizen of Virginia, and also of the United States.
Within the united States of America a person granted naturalization is also granted citizenship,
where as the Commonwealth of Australia Constitution Act 1900 (UK) does not provide for this.
Section 51(xix) provides for “naturalization”.
As already extensively placed before the magistrates in previous proceedings (upon which I rely
before this Court also) some of the “Colonies” (now States) naturalized “aliens” and others didn’t

Page 179
however each and every Colony did have legislation in regard of citizenship and the rights to
franchise.
The Hansard records of the 2 March and 3 March 1898 Constitutional Convention Debates
made clear that “naturalization” powers would be transferred from the Colonies to the newly to
be formed Commonwealth of Australia, as it would be approved by the British Parliament but
“CITIZENSHIP” legislative powers would be retained by the States in the newly formed
Commonwealth of Australia.
Mr Quick proposed to give the Commonwealth of Australia constitutional powers to

define/declare “CITIZENSHIP” but this was defeated/refused by the Delegates!
I took occasion to indicate that in creating a federal citizenship, and in defining the
qualifications of that federal citizenship, we were not in any way interfering with our
position as subjects of the British Empire. It would be beyond the scope of the
Constitution to do that.
Therefore, even if the amendment of Mr Quick had succeeded it still was not intended to give
any legislative powers to the commonwealth of australia to interfere with the rights of any person
as a British subject.
Mr. 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.
Dr. QUICK.-If we are to have a citizenship of the Commonwealth higher, more

comprehensive, and nobler than that of the states, I would ask why is it not implanted in the
Constitution? Mr. Barton was not present when I made my remarks in proposing the
clause. I then-anticipated the point he has raised as to the position we occupy as subjects of
the British Empire. I took occasion to indicate that in creating a federal citizenship,
and in defining the qualifications of that federal citizenship, we were not in any way
interfering with our position as subjects of the British Empire. It would be beyond the
scope of the Constitution to do that. We might be citizens of a city, citizens of a
colony, or citizens of a Commonwealth, but we would still be, subjects of the Queen. I
see therefore nothing unconstitutional, nothing contrary to our instincts as British
subjects, in proposing to place power in this Constitution to enable the Federal Parliament
to deal with the question of federal citizenship. An objection has been raised in various
quarters-as by the honorable and learned members (Mr. O'Connor and Mr. Wise)-to the
effect that we ought to define federal citizenship in the Constitution itself. I have
considered this matter very carefully, and it has seemed to me that it would be most
difficult and invidious, if not almost impossible, to frame a satisfactory definition. There is
in the Constitution of the United States of America a cast-iron definition of
citizenship, which has been found to be absolutely unworkable, because, among other
things, it says that a citizen of the United States shall be a natural-born or naturalized
citizen within the jurisdiction of the United States, and it has been found that that
excludes the children of citizens born outside the limits of this jurisdiction. That
shows the danger of attempting definitions, and although I have placed a proposed
clause defining federal citizenship upon the notice-paper, the subject, seems to me
surrounded with the greatest difficulty, and no doubt the honorable and learned
members (Mr. Wise, Mr. O'Connor, and Mr. Symon) would be the first to attack any
Page 180
definition, and would be able to perforate it. In my opinion, it would be undesirable to
implant a cast-iron definition of citizenship in the Constitution, because it would be
better to leave the question more elastic, more open to consideration, and more
yielding to the advancing changes and requirements of the times.
Mr. SYMON.-I agree with the honorable member, and I also think it is unlikely that the
Commonwealth will seek to derogate from it, but I will not place a power in the hands of
the Commonwealth which will enable them to derogate from it, and if that is not done it
will be merely a dead letter. Is there any citizen of the Commonwealth who is not already a
citizen of the state? State citizenship is his birthright, and by virtue of it he is entitled to the
citizenship of the Commonwealth. When you have immigration, and allow different
people 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 they
come here.
Mr. SYMON.-That is a point I do not wish to deal with. But they become citizens of
the states, and it is by virtue of their citizenship of the states that they become citizens
of the Commonwealth. Are you going to have citizens of the state who are not citizens
of the Commonwealth?
Mr. KINGSTON.-In some states they naturalize; but they do not in others.
Mr. WALKER.-Is not a citizen of the state, ipso facto, a citizen of the
Commonwealth?
And
Mr. SYMON.-The honorable and learned member is now dealing with another matter.
Would not the provision which is now before us confer upon the Federal Parliament the
power to take away a portion of this dual citizenship, with which the honorable and
learned member (Dr. Quick) has so eloquently dealt? If that is the case, what this
Convention is asked to do is to hand over to the Federal Parliament the power, whether
exercised or not, of taking away from us that citizenship in the Commonwealth which we
acquire by joining the Union. I am not going to put that in the power of any one, and if it is
put in the power of the 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 a question 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 or diminished by the Federal Parliament! When we declare-
"Trust the Parliament," I am willing to do it in everything which concerns the working out
of this Constitution, but I am not prepared to trust the Federal Parliament or anybody to
take away that which is a leading inducement for joining the Union.
And
Mr. OCONNOR.-I have said that I do not see that such a trust in the Federal Parliament
would be effective. I sympathize with the honorable member's view, but I think it will be
carried out by some kind of definition of citizenship, and I was pointing out the only
aspect in which it appears to me it might be desirable to have some such definition, and
Page 181
that is, you are creating new rights to citizens of the Commonwealth as citizens of the
Commonwealth in regard to your courts. You establish courts for the Commonwealth, and
every citizen of the Commonwealth is entitled to the use of those courts.
Mr. HIGGINS.-Who is he?
And
Mr. GLYNN (South Australia).-I shall have to oppose Dr. Quick's amendment, although
I would really go further than he intends. His object is to have a common citizenship, and
he proposes to define that in a proposed new clause, 120A, which reads as follows:-
All persons resident within the Commonwealth, being natural-born or naturalized subjects
of the Queen, and not under any disability imposed by the Parliament, shall be citizens of
the Commonwealth;
and he now wants to give power to Parliament to vary that subsequently.
Mr. ISAACS.-It is not clause 120A that he is proposing now.
Mr. HIGGINS.-It is his amendment in clause 52-to insert "Commonwealth citizenship"

as a new sub-section.
Mr. GLYNN.-I am quite aware of that, but what I want to understand is whether Dr.
Quick will propose the insertion of clause 120A, and also put it in the power of the
Parliament to vary the Commonwealth citizenship under clause 52? That is the point about
which I am doubtful. But I desire to point out that Dr. Quick is not going as far as they
have gone in America or Germany. There is a common citizenship both of the
Commonwealth and of the states in America. Citizenship of the Commonwealth carries
with it citizenship of the states, and the Constitution provides that immunities and
privileges enjoyed by the citizens of a particular state shall be equally shared, when in that
state, by the citizens of all the other states. Now, the German Constitution makes a
declaration that there must be a common citizenship. It does not state that the Parliament
of Germany will have the power of providing for a citizenship of the empire, but that there
must be a common citizenship of the whole empire, and that the privileges which are given
in one part of the empire would apply right through the whole empire. That is to say, there
is a Commonwealth citizenship and a state citizenship running the one with the other-a
perfect equality of rights. All that is done in Germany is that Article 3 of the Imperial
Constitution declares that there shall be a common citizenship for all Germany, and that
the rights of the individual citizens of any state must be extended to the individual citizens
of any other state as long as they come within the jurisdiction of the former state; but the
German Constitution also provides that Parliament-and here is the distinction-may define
what the conditions of that common citizenship are to be. The Constitution declares that
there must be a common citizenship, but it leaves the determination of the particular terms
of that citizenship to the Parliament. That is different from the proposal of Dr. Quick.
And
[start page 1761]
Mr. KINGSTON.-It was in the Bill.

Page 182
Mr. OCONNOR.-There is no portion of the Bill which gives any right of citizenship, or
points out what citizenship is.
Mr. HIGGINS.-The word "citizen " occurred in clause 110, although it is now struck
out.
And
Mr. OCONNOR.-The words in clause 110 do not define any right of citizenship; they
prevent certain restrictions upon it. I would point out to Dr. Quick that he is proposing to
give a power to regulate or describe rights of citizenship, when we really do not know at
present what is meant by a citizen. I confess I do not know what the honorable and learned
member means by that term. Does he mean only the political rights which you give to
every inhabitant of a state who is qualified to vote, or does he go beyond that, as the
American decisions have gone, and describe every person who is under the protection of
your laws as a citizen? The citizens, the persons under the protection of your laws, are not
the only persons who are entitled to take part in your elections or in your government, but
every person who resides in your community has a right to the protection of your laws and
to the protection of the laws of all the states, and has the right of access to your courts. If
you are going to define citizenship for the purpose of giving these rights, you must say
clearly what you mean by citizenship. You leave it to the Federal Parliament to say what
citizenship is; and I think there is a great deal in what Mr. Glynn says, that we must not
hand over to the Federal Parliament the power to cut down the rights the inhabitants of
these states have at the present time. If we do not know what you mean by citizenship-
Mr. ISAACS.-Commonwealth citizenship.
Mr. OCONNOR.-Exactly. But if we do not know what you mean by citizenship-

whether you mean to restrict it to political rights or to the right of protection under your
laws, which every person, whether a naturalized subject or a person for the time being
resident in one of these communities, possesses-we may drive the Federal Parliament into
some difficulty, in which it is not at all unlikely that some cutting down of what we believe
to be the rights of citizenship may take place. I would point out that under the Bill the
power of dealing with aliens and immigration gives an abundant right to the
Commonwealth to protect itself, and, of course, the right of defining citizenship will
have to be exercised with due regard to any laws which might be made regarding the
position of aliens. I would ask my honorable friend (Dr. Quick) to say if he has considered
how far he means the Federal Parliament to go in the definition of citizenship, and what he
means by citizenship? Because, unless we have a clear idea of that, it seems to me that we
are handing over to the Federal Parliament something which is vague in the extreme, and
which might be misused.
And
Mr. SYMON.-Very likely not. What I want to know is, if there is anybody who will
come under the operation of the law, so as to be a citizen of the Commonwealth, who
would 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 the
Commonwealth, except with regard to legislation as to aliens. Dual citizenship exists,
but it is not dual citizenship of persons, it is dual citizenship in each person. There may
be two men-Jones and Smith-in one state, both of whom are citizens of the state, but
Page 183
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 the
dual citizenship. That does not affect the operation of this clause at all. But if we introduce
this clause, it is open to the whole of the powerful criticism of Mr. O'Connor and those
who say that it is putting on the face of the Constitution an unnecessary provision, and one
which we do not expect will be exercised adversely or improperly, and, therefore, it is
much better to be left out. Let us, in dealing with this question, be as careful as we
possibly, can that we do not qualify the citizenship of this Commonwealth in any way or
exclude anybody [start page 1764] from it, and let us do that with precision and clearness.
As a citizen of a state I claim the right to be a citizen of the Commonwealth. I do not
want to place in the hands of the Commonwealth Parliament, however much I may be
prepared to trust it, the right of depriving me of citizenship. I put this only as an
argument, because no one would anticipate such a thing, but the Commonwealth
Parliament might say that nobody possessed of less than £1,000 a year should be a citizen
of 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 must
rest this Constitution on a foundation that we understand, and we mean that every
citizen of a state shall be a citizen of the Commonwealth, and that the Commonwealth
shall have no right to withdraw, qualify, or restrict those rights of citizenship, except
with regard to one particular set of people who are subject to disabilities, as aliens,
and so on. Subject to that limitation, we ought not, under this Constitution, to hand over
our birth right as citizens to anybody, Federal Parliament or any one else, and I hope the
amendment will not be accepted.
And
Mr. BARTON.-If the honorable member's exclamation means more than I have
explained, then the best thing to do is to confide to the Commonwealth the right of dealing
with the lives, liberty, and property of all the persons residing in the Commonwealth,
independently of any law of any state. That is not intended, but that is what the expression
"Trust the Federal Parliament" would mean unless it was limited by the consideration I
have laid down. I am sure Dr. Quick will see that he is using a word that has not a
definition in English constitutional law, and which is not otherwise defined in this
Constitution. He will be giving to the Commonwealth Parliament a power, not only of
dealing with the rights of citizenship, but of defining those rights even within the very
narrowest limits, so that the citizenship of a state might be worth nothing; or of
extending them in one direction, and narrowing them in another, so that a subject
living in one of the states would scarcely know whether he was on his head or his
heels. Under the Constitution we give subjects political rights to enable the Parliament to
legislate with regard to the suffrage, and pending that legislation we give the qualification
of electors. It is that qualification of electors which is really the sum and substance of
political liberty, and we have defined that. If we are going to give the Federal Parliament
power to legislate as it pleases with regard to Commonwealth citizenship, not having
defined it, we may be enabling the Parliament to pass legislation that would really
defeat all the principles inserted elsewhere in the Constitution, and, in fact, to play
ducks and drakes with it. That is not what is meant by the term "Trust the Federal
Parliament."
Page 184
Mr. HIGGINS.-You give the Federal Parliament power to naturalize.
Mr. BARTON.-Yes; and in doing that we give them power to make persons subjects of
the British Empire. Have we not done enough? We allow them to naturalize aliens. That
is a power which, with the consent of the Imperial authority, has been carried into
legislation by the various colonies, and, of course, we cannot do less for the
Commonwealth than we have done for the colonies.
Mr. KINGSTON.-Such legislation is only good within the limits of each state.
Mr. BARTON.-Yes; and here we have a totally different position, because the actual
right which a person has as a British subject-the right of personal liberty and
protection under the laws-is secured by being a citizen of the states. It must be
recollected that the ordinary rights of liberty and protection by the laws are not
among the subjects confided to the Commonwealth. The administration of [start page
1766] the laws regarding property and personal liberty is still left with the states. We
do not propose to interfere with them in this Constitution. We leave that amongst the
reserved powers of the states, and, therefore, having done nothing to make insecure the
rights of property and the rights of liberty which at present exist in the states, and having
also said that the political rights exercisable in the states are to be exercisable also in the
Commonwealth in the election of representatives, we have done all that is necessary. It is
better to rest there than to plunge ourselves into what may be a sea of difficulties. We do
not know to what extent a power like this may be exercised, and we should pause before we
take any such leap in the dark.
Again;
and so on. Subject to that limitation, we ought not, under this Constitution, to hand over
our birth right as citizens to anybody, Federal Parliament or any one else, and I hope the
amendment will not be accepted.
Also
The administration of [start page 1766] the laws regarding property and personal
liberty is still left with the states.
As was made clear by Mr quick;
I took occasion to indicate that in creating a federal citizenship, and in defining the
qualifications of that federal citizenship, we were not in any way interfering with our
position as subjects of the British Empire. It would be beyond the scope of the
Constitution to do that. We might be citizens of a city, citizens of a colony, or citizens
of a Commonwealth, but we would still be, subjects of the Queen.
Therefore, the Constitution never provided any constitutional powers for the Commonwealth of
Australia to legislate as to “CITIZENSHIP”.
Page 185
As the Commonwealth of Australia was provided with powers within Subsection 51(xix) of the
constitution to “naturalize” “aliens” to become “British nationals” and the Nationalization Act
was enacted after Federation then clearly the powers to naturalize an alien to become a British
national is not diminish. In 1948, the Federal parliament then replaced the Naturalization Act
with the Australian citizenship Act 1948 by this “STEALING” the legislative powers of the
States states in regard of “citizenship” by purporting that there was an “Australian citizenship” as
an Australian nationality.
Barton J, the parliament cannot give the word a meaning

not warranted by s73 of the Constitution.
Commonwealth v Brisbane Milling Co. Ltd. (1916) 21 C.L.R. 559; A.L.R. 272.
If the Commonwealth of Australia never had any constitutional powers to declare/define

citizenship then what is the meaning of the Certificate of Australian Citizenship realty?
If Australian citizenship is purported to be Australian nationality then this must fail as Subsection
51(xix) provided constitutional powers for the Commonwealth of Australia to “naturalize” aliens
to become British nationals! Without any Section 128 referendum this cannot be changed to
some purported “Australian nationality”.
We either have a Constitution or not! We use it as was intended by the framers of the
Constitution, modified as have been provided for by the successful referendums or we have no
constitution at all and no federation exist!
In view that the British parliament declared Australians to be “foreigners” can this then alter the
application of the constitution, one may ask?
Constitutional law cannot be amended by mere implication but must be amended by appropriate
legislation. In the case of the Commonwealth of Australia Constitution Act 1900 (UK) Section
128 exclude the British Parliament to amend the constitution as it can only be amended by the
consent of the people, as expressed by a Section 128 referendum. Hence, regardless if the British
parliament did or didn’t pass legislation to declare Australians “foreigners” the only way to
resolve the matter was and remains to have the Constitution amended to allow the
Commonwealth of Australia to “naturalize” aliens to become Australian nationals.
The following part of transcript indicates how the High Court of Australia itself is confusing
“citizenship” with “nationality”.
Dang, Ex parte - Re MIMA M118/2001 (18 April 2002)

IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M25 of 2001
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 18 APRIL 2002, AT 10.17 AM
KIRBY J: Your clients were not British subjects.

MR MAXWELL: That is so. If I might move immediately to the question of what
Patterson decided. In our respectful submission, what Patterson decided was this, that
allegiance, not citizenship, is the touchstone for determining alien status.

Page 186
KIRBY J: There is only one reference to citizenship in the Constitution, is there not, and
that is the disqualification that was considered in Sue v Hill?
MR MAXWELL: Yes, your Honour.
KIRBY J: There is no other reference to the concept and, indeed, we did not have a
Citizenship Act until quite late in the history of the Commonwealth.
MR MAXWELL: One of the critical aspects which comes through clearly in the
judgments, both the dissenting and the majority judgments in Patterson, is the point your
Honour has just adverted to: alien is a concept of our Constitution, citizenship is a concept
of our statute law. Your Honours Justices Gummow and Hayne in the joint judgment put in
these terms the proposition advanced by the prosecutor in Patterson, namely, at paragraph
[223]:
alienage and citizenship . . . do not occupy the relevant universe of discourse -
That, we would respectfully adopt, though your Honours disagreed in the result, as being
the proposition which the majority did endorse. That is to say, it does not follow that
because a person is a non-citizen he or she is, by definition, an alien because you must be
one or the other.
What Patterson held and why Nolan had to be overruled was that there is a category of
non-citizen non-alien. That is what your Honours held by majority Taylor was. He was not
a citizen and he was not an alien.
GUMMOW J: I should make clear to you I do not regard that matter as closed.
MR MAXWELL: I am indebted to your Honour.
GUMMOW J: It seems to me absolutely fundamental.
MR MAXWELL: It is absolutely fundamental and, in our respectful submission, there can
be no conclusion, with respect, other than that is what this Court found because Mr - - -
GUMMOW J: I am not so sure about that. The Solicitor-General goes into all of this.
MR MAXWELL: Your Honour, we note with some surprise that less than a year after that
decision was handed down, the Commonwealth is inviting this Court to reopen it and
overrule it if it says what we say it says.
GUMMOW J: The question really is whether it should have overruled Nolan. Now, I will
not hold you up.
MR MAXWELL: Your Honour, in our respectful submission, this Court did overrule
Nolan. Four Justices of the Court addressed the question whether it should be overruled
and each of them decided for reasons given that it should and it is no longer the law in this
country, in our respectful submission, and we will go further and say that necessarily Pochi
was at best left under a considerable cloud, if not necessarily overruled by that overruling.
GUMMOW J: It seems to me what I was putting to you really can be put to one side
because you have to go further in this case, and that is the real point.
MR MAXWELL: Indeed, your Honour. Plainly enough - - -
KIRBY J: As I understand your argument, it is that until Taylor there was clear authority
that there was a simple clear criterion for alienage, non-citizen.
MR MAXWELL: Exactly so.
KIRBY J: After Taylor, whatever is the criterion, the base has shifted.
KIRBY J: It did not have to shift further than British subjects to resolve the issue of
Patterson.
MR MAXWELL: That is so.
KIRBY J: But you say, having shifted the basis, a new, stable basis must be found and
therefore this case presents the obligation to find that new, stable basis.
GUMMOW J: And what is the stable basis?

Page 187
MR MAXWELL: The starting point is that the obligation of allegiance can come into
existence between a person and the Queen of Australia otherwise than by the taking out of
citizenship. The next question is, by what criteria is the establishment of that obligation to
be determined - I am sorry, your Honour?
GAUDRON J: You say "can". Did Patterson go further than say at a certain time it could
come into operation by that method in respect of a certain category of people?
MR MAXWELL: That is so, but - - -
GAUDRON J: Yes. Well, you have to go beyond that to say that since, when? At all
relevant times it has been possible and it continues to be possible?
MR MAXWELL: Your Honour, all I need to establish is that at the date of the relevant
decisions the obligation of allegiance had been assumed by these individuals. It is quite
separate, of course, from the discussion which was necessarily engaged in for Patterson
about the evolution of the Crown in right of Australia and its separation from Britain.
These are, plainly, individuals who have never been British subjects. This is a different
case. But as his Honour Justice Kirby has put, we will be inviting the Court to explore this
category of non - - -
GUMMOW J: We do not set off on exploration tasks. We respond to submissions and we
are trying to find what your submission is.
MR MAXWELL: Of course, your Honour.
GUMMOW J: You can tantalise us with this notion of a stable basis. The question is:
what is it?
MR MAXWELL: In these cases - - -
GUMMOW J: Bearing in mind that Patterson was, on one view of it, all about the
changing nature of the British Commonwealth, to use that expression.
MR MAXWELL: Your Honour, we put the stable basis on three bases in these cases as
set out in our submission. First, we say that each of these individuals renounced his
allegiance to his country of birth by fleeing from a regime which could not guarantee him
protection.
GUMMOW J: How do notions of allegiance work with republican systems of
government? As I understand it, the whole notion of citizenship dates back to the American
and French Revolutions, where they had to replace notions of allegiance which were
monarchical with something else and they devised the notion of citizenship. These
gentlemen never owed allegiance to any sovereign, did they?
MR MAXWELL: No, though your Honour will - - -
KIRBY J: Although they would have been born during the reign of Prince Sihanouk.
Cambodia was not a separate colony of France; it was a protectorate. So I think that is
something we would not know without some detail.
GUMMOW J: That is right.
MR MAXWELL: But, your Honour, in our respectful submission, as a matter of principle
this will not turn on whether a person came from a country which was a monarchy or a
republic. The concept of allegiance - - -
GUMMOW J: The point I am trying to make to you is that notions of allegiance come out
of English medieval feudalism. That is where it comes from - monarchical feudalism.
MR MAXWELL: With respect, we fully appreciate that. As your Honours in the lengthy
joint judgment explained, the concept has developed very significantly since the original
notion of personal loyalty to a lord. It became, and it was declared in the Court of Queen's
Bench in the 1880s, as your Honours pointed out, that it changed from a personal
obligation or an obligation to the sovereign in his or her personal capacity to an obligation
to the sovereign in his or her political capacity. That is just one respect in which the
discussion about allegiance in the 21st century is a different discussion from that which it
would have been under more confined notions.
Page 188
HAYNE J: And it is pointed up by your proposition that each renounced allegiance to the
country of his birth because the regime of the day would not protect him.
HAYNE J: But is allegiance concerned with allegiance to the government? Is it more
abstracted a notion than allegiance to whatever regime is in power?
GAUDRON J: There is a further question of course too and that is, by whose law is this
renunciation to be determined? That was addressed in Sykes and the general principle of
international law is that that is determined by the laws of the country of which the person
was a citizen or to which he or she owed allegiance.
GAUDRON J: So it is not a simple question, I should have thought.
MR MAXWELL: No, and it is not necessary for our argument, with respect, that there
have been no renunciation.
GAUDRON J: Well - - -
MR MAXWELL: It is not. It happens to be the fact and it makes our cases a fortiori, but
what is the critical question is whether it can be said of the person that he has assumed the
obligation of allegiance and our submission puts it that it - - -
GAUDRON J: And you put that as a one-way traffic as well.
MR MAXWELL: Well, with respect, no we do not. We gratefully accept the analysis of
their Honours in the joint dissenting judgment, which points out that changes in the
relationship of allegiance can occur either by the joint act of the parties to it, the subject
and the sovereign, or by the unilateral act of either, which, apart from anything else,
enables us to put to one side the old notion that allegiance was perpetual and the natural-
born subject could never give it up. The concept of naturalisation scotched that notion 100
years ago. It can be given up by a formal act. We submit that one would expect to find a
parallel notion of renunciation by conduct, but we accept - and our learned friends say just
because you have renounced your citizenship of another country does not mean you have
become a citizen of Australia. Well, we accept that. We do not assert that the renunciation
somewhere else makes you a subject of the Queen of Australia. There needs to be an act or
a course of conduct of which it can be said that this person enjoys the protection of the
Queen of Australia and owes her obligations of allegiance.
GLEESON CJ: At which stage did your clients cease to owe allegiance to Cambodia or
Vietnam respectively?
MR MAXWELL: At the time they sought refuge in refugee camps or, alternatively, upon
the grant of permanent residence visas to each of them, enabling them to come from the
refugee camp to Australia. At that point, we have argued in our submission that the self-
description as a refugee is the explanation or the manifestation of the renunciation.
GLEESON CJ: They are interesting alternatives, in practice, because if the former is
correct, they would have been in the same situation even if they had been refused visas.
MR MAXWELL: That is so. Again, they were granted visas and that means that - and we
will take your Honours in due course to the findings of fact in the Tribunal in each case -
each of these persons was a refugee at the time and, as I understand it, there is no dispute
about that. We do not say that an application for refugee status was made and determined
in Australia. There is no evidence that that occurred. Nor is there any doubt but that they
were refugees in the sense in which that term is understood - defined in the Convention.
Your Honours will see in the material a question arises before the Tribunal "whether the
protection obligations which Australia owed under the Convention still obtained as at the
date of the Tribunal review?" Held: "No they don't. Conditions have changed in Cambodia
or Vietnam. The protection obligation does not subsist."

Page 189
To come back to your Honour's question. The assertion of refugee status is the act of
renunciation because it is a statement that, "I cannot rely on the sovereign government of
my country to protect me." Indeed, that language is used in the Convention itself.
GLEESON CJ: Why did they need visas? I wondered if it was because they were aliens.
MR MAXWELL: Well, they otherwise had no right to enter Australia.
GUMMOW J: You seem to be asserting they did. Of course HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/c167/" the Constitution - - -
MR MAXWELL: As a matter of international law - - -
GUMMOW J: Forget about international law, because HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/c167/" the Constitution operated in
some magical way.
MR MAXWELL: No, your Honour. We conceded before Justice Hayne that these people
had not - I think we conceded they were aliens at the point of arrival. We will seek to
qualify that concession by the protection allegiance argument we have made in our reply.
We start with the proposition that Australia owed obligations of protection to these
refugees under the 1951 Convention. At that point there was an acceptance of what is
described in the Refugee Convention in these terms, and it is in the material, a person is,
"unable or . . . unwilling to avail himself of the protection of that country".
What is helpful in this analysis, in our respectful submission, is what Sir John Salmond, in
the Law Quarterly Review article that we will take your Honours to, and the House of
Lords in Joyce refer to as "the reciprocal obligations of protection by the sovereign to the
subject and allegiance by the subject to the sovereign."
KIRBY J: Could I just ask a factual matter, that is partly a legal matter. Was there any
impediment to your clients becoming naturalised Australian citizens?
MR MAXWELL: Not that I am aware of, your Honour, no. No application was made. At
a certain point they may have, by their criminal convictions, become unable to satisfy the
"good character" requirement.
KIRBY J: Does one draw any inference at all from the fact that in the interval between
their arrival as children and their evictions, that they could have signified their allegiance to
the Queen of Australia and the people of Australia by becoming citizens but omitted,
failed, refused to do so?
MR MAXWELL: In our respectful submission, no. One draws no inference because - and
this comes back to the fundamental point - the assumption of citizenship - we have put this
in terms in the outline - is a sufficient condition of allegiance but it is not a necessary
condition, and that is what Patterson held. If that is correct, then the non-taking out of
citizenship does not disqualify a person from being a subject of the Queen of Australia.
GAUDRON J: But are we not a little bit off the track here? From a constitutional point of
view we are concerned with aliens and non-aliens. At least in the case of persons who are
not and never have been British subjects is it not the case that it is well within the
legislative power of the Parliament to decide and define who are and who are not aliens?
CALLINAN J: That is what Mr Justice Barton said in Ferrando v Pearce.
GAUDRON J: But is that not the case, that it has legislative power to define who are and
who are not aliens?
MR MAXWELL: Yes, but, with respect, to exclude from a statutory definition of aliens -
let me put that differently - to include within a statutory definition of aliens someone who
is not is beyond power.
GLEESON CJ: But if granting a visa to someone produces the result that they are not an
alien, then the entire scheme of the Migration Act 1997 has miscarried, has it not? Its long
title is it is "An Act relating to the entry into, and presence in, Australia of aliens, and the
departure or deportation from Australia of aliens". Visas can be cancelled, can they not?

Page 190
By the reasoning of the Framers of the Constitution (the Delegates to the Constitution
Conventions) a “subject to the Crown” was anyone who was subjected to the laws of the Crown
regardless if they were aliens or not.
Shaw v Minister for Immigration and Multicultural Affairs

HYPERLINK "http://www.austlii.edu.au/au/cases/cth/high_ct/2003/72.html" [2003] HCA
72
9 December 2003
B99/2002
10. However, contrary to the submissions for the applicant, the result of such a consideration
of his position is his classification as an alien for the purposes of HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/num_act/c167/s51.html" s 51 (xix) of the
Constitution. Much of the applicant's argument proceeded from the premise that, because
the expression "British subject" could be applied to him, he was not an alien. That
premise is flawed. First, "British subject" is not a constitutional expression; it is a
statutory expression. Secondly, and more fundamentally, if "British subject" was being
used as a synonym for "subject of the Queen", an expression which is found in the
Constitution, that usage would assume that there was at the time of federation, and there
remains today, a constitutional and political unity between the UK and Australia which
100 years of history denies.
Hansard 2-3-1898 Constitutional Convention Debates

Mr. BARTON.- I did not say that. I say that our real status is as subjects, and that we are
alike subjects of the British Crown.
Mr. MUNRO:
. I am proud of being a citizen of the great British empire, and shall never fail to be
proud of that position.
Mr. HOLDER:
because I take it that the legal bonds which bind us to the mother-country, to the
great British Empire,
Mr. BARTON:
The association of the Queen with the action of the commonwealth is distinct, and is
firmly embedded in the whole bill. If that is done, there can be no association of the
idea of republicanism with this bill.
Mr. BARTON.-Yes; and here we have a totally different position, because the actual right
which a person has as a British subject-the right of personal liberty and protection
under the laws-is secured by being a citizen of the States. It must be recollected that
the ordinary rights of liberty and protection by the laws are not among the subjects
confided to the Commonwealth.
Page 191
Dr. QUICK.-
we were not in any way interfering with our position as subjects of the British Empire.
It would be beyond the scope of the Constitution to do that. We might be citizens of a
city, citizens of a colony, or citizens of a Commonwealth, but we would still be,
subjects of the Queen.
Mr. BARTON.-
We are subjects in our constitutional relation to the empire, not citizens. "Citizens" is an
undefined term, and is not known to the Constitution. The word "subjects" expresses the
relation between citizens of the empire and the Crown.
Sir GEORGE TURNER.-Is a naturalized alien a subject?
Mr. BARTON.-He would be a citizen under the meaning of this clause.
Sir GEORGE TURNER.-Suppose you say "subject" without definition, would that
include naturalized aliens?
Mr. BARTON.-Yes. Dr. Quick's definition is: Persons resident in the Commonwealth,
either natural-born or naturalized subjects of the Queen, and if they are subject to no
disabilities imposed by the Parliament they shall be citizens of the Commonwealth. Why
not use the word "subject," and avoid the necessity of this definition?
And
Mr. OCONNOR.-Exactly. It has two meanings, but we are only dealing now with
the one meaning-the general meaning. Mr. Isaacs' reference shows the danger that
might be incurred by using the word "citizen," because it might have the restrictive
meaning the last decision imposes. All we mean now is a member of the community or
of the nation, and the accurate description of a member of the community under our
circumstances is a subject of the Queen resident within the Commonwealth."
Mr. SYMON.-A person for the time being under the law of the Commonwealth.
Mr. OCONNOR.-A person for the time being entitled to the benefits of the law of
the Commonwealth.
And
Mr. BARTON (New South Wales).-If it is a fact that citizens, as they are called, of each
state are also citizens of the Commonwealth, there may be some little doubt as to whether
this is not providing for practically the same thing.
Mr. WISE.-No, there may be territories that is what I want to provide for.
Mr. BARTON.-In other portions of the Bill we use the words "parts of the
Commonwealth" as including territories, so that the object of Mr. Wise would be met
by using the words "citizens of every part of the Commonwealth" or "each part of
the Commonwealth."
And
Page 192
Mr. BARTON.-
We are subjects in our constitutional relation to the empire, not citizens. "Citizens" is
an undefined term, and is not known to the Constitution. The word "subjects"
expresses the relation between citizens of the empire and the Crown.
Sir GEORGE TURNER.-Is a naturalized alien a subject?
Mr. BARTON.-He would be a citizen under the meaning of this clause.
Sir GEORGE TURNER.-Suppose you say "subject" without definition, would that
include naturalized aliens?
Mr. BARTON.-Yes. Dr. Quick's definition is: Persons resident in the Commonwealth,
either natural-born or naturalized subjects of the Queen, and if they are subject to no
disabilities imposed by the Parliament they shall be citizens of the Commonwealth. Why
not use the word "subject," and avoid the necessity of this definition?
Dr. QUICK.-This definition does not interfere with the term "subject" in its wider relation
as a member of the empire or subject of the Queen.
Mr. BARTON.-No, but the definition of "citizen" as a natural-born or naturalized

subject of the Queen is co-extensive with the ordinary definition of a subject or citizen in
America. The moment be is under any disability imposed by the Parliament be loses his
rights.
And
Dr. QUICK.-The regulation would have to specify the ground of disability.
Mr. BARTON.-Yes; but my honorable friend says not under any disability imposed by
the Parliament. Would not the difficulty be that if he were under any slight disability for
regulative purposes, all his rights of citizenship under the Commonwealth would be lost?
Mr. KINGSTON.-There might be a special disability on minors.
Mr. BARTON.-That might be one of the disabilities. Of course here the disabilities
as to minors would not matter much, but I would like to put this consideration to Dr.
Quick, that if we use the term "subject," or a person subject to the laws, which is a wider
term, we shall avoid the necessity for a definition of "citizen." You might say a subject or
resident being the subject of the Queen.
And
Mr. SYMON.-There is no man in Australia who is more profoundly versed in

constitutional law than Mr. Isaacs, and he knows that every point and every question has
been the subject of more or less debate and discussion, and will be until the end of time.
The words "subject," "person," and "citizen" can be made subjects of controversy
at all times if occasion requires it. At the same time, it does not affect the principle

Page 193
that there should be a definition of "citizen," either in the form suggested by Dr.
Quick or by Mr. Barton.
And
Mr. ISAACS (Victoria).-I am afraid that the amendment is far too wide, unless we say
that the disabilities imposed by Parliament may extend to birth and race. This would,
notwithstanding the rights conferred under clause 52, deprive Parliament of the
power of excluding Chinese, Lascars, or Hindoos who happened to be British
subjects.
And
Mr. GLYNN.-
I would like to mention, in connexion with what Mr. Isaacs said as to aliens, that this
provision would not interfere in the slightest degree in the way of preventing aliens
from coming in, because it is only when the aliens get inside the Commonwealth that
this provision is to apply to them. The decision of the Privy Council in the case of Ah Toy
v. Musgrove was that an alien had no right to land here, but that decision does not affect
his citizenship after he has landed.
And
Mr. WISE (New South Wales).-My mind has wavered very much during this debate. I
have come to the conclusion that my original suggestion was wrong, that the best form
of all in which the original amendment could be moved is [start page 1793] that in which it
was proposed by Mr. Symon, and that then no definition such as is suggested by Dr. Quick
will be really required, because, if we allow each state to make its own standard of
citizenship, we shall reserve all the rights of the states, and obviate all the difficulties
contemplated by Mr. Trenwith, by retaining to each state the right to determine the
qualification of its own citizens. And then we will make a provision that is necessary as
part of the Federal Constitution, that when a man has acquired citizenship in one state he
shall be entitled to the right of citizenship in the other states.
And
Dr. COCKBURN (South Australia).-If the word "citizen" simply means resident or
inhabitant, why should we go to all this trouble about it? If it means inhabitant, what
is the use of saying the inhabitant of one state going to another state shall be an
inhabitant of that other state? It seems to me that if you are going to use the word
"citizen" in the sense of being equal to resident or inhabitant, and it is to have no
other meaning such as has always been attached to it, we had better leave out the
clause.
And
Mr. OCONNOR (New South Wales).-I would suggest that Mr. Symon should accept the
amendment suggested by Mr. Barton, so that his clause shall read-
Every subject of the Queen resident in any state or part of the Commonwealth shall be
entitled to all privileges and immunities of subjects resident in other states or parts of the
Commonwealth.

Page 194
I am altogether in favour of the principle of Mr. Symon's amendment; but the word
"citizen" creates a difficulty. If, instead of the word "citizen," we use the words "Every
subject of the Queen resident in a state," it really means the same thing. The meaning to
be given to the word "citizen" in Mr. Symon's amendment is not the narrow limited
meaning of the citizen who can exercise the franchise, but it is the broad general
meaning which the word has been held to have under the United States Constitution.
It has been decided there that the word "citizen" has, [start page 1796] in a general
and wide sense, this meaning:-
In its broad sense the word is synonymous with subject and inhabitant, and is
understood as conveying the idea of membership of the nation, and nothing more.
And
Dr. COCKBURN.-But the present proposal if carried would raise an initial difficulty in
framing special laws. It might be urged that it was necessary to discriminate between
residents who are subjects of the Queen and those who are not, and the amendment
would introduce an element which would give rise to a great deal of trouble in the
future.
Mr. HIGGINS.-You want to keep both classes out.
Dr. COCKBURN.-We desire always to deal with Asiatics on broad lines, whether
they are subjects of the Queen or not; and in South Australia, and, I believe, other
colonies, those lines of distinction are obliterated. In South Australia we make no
difference between Chinese from Hong Kong and those from other parts of China.
That, I think, is the most effective way of dealing with this matter.
Again;
We are subjects in our constitutional relation to the empire, not citizens. "Citizens" is
an undefined term, and is not known to the Constitution. The word "subjects"
expresses the relation between citizens of the empire and the Crown.
Clearly, the Framers made clear it is not the relationship between a subject and some Queen, but
more significantly the relationship between the subjects as “citizens of the empire and the
Crown.” One must therefore be a citizen of the empire to have a relationship with the Crown.
If one is not a subject of the Crown residing as a citizen in the empire then no relationship exist.
This, the High Court of Australia never addressed as such. It simply sought to bypass this kind of
definition, being it unaware of it all together or not. But, the “Queen of Australia” is no Queen
recognised by the British Crown, or can be Queen of the Empire. It is a fictitious name and title
that can hold no water, so to say, to issue proclamation in that title, as to do so would create a
fictitious appointment not worth the paper it is written upon.
To get a bit of an understanding about “internal affairs” and “external affairs” the following may
be considered;
Dr. COCKBURN: I should like to justify the vote that I shall have to give on this matter,
because it will be rather dissonant with the votes I have been giving throughout the sittings
of the Convention. I shall vote for the clause as it stands, and also for the amendment
intended to be proposed by the hon. member, Mr. Gordon, because I take it to be essential
Page 195
to federation. It is the very definition of a federation that, as regards external affairs, the
federation shall be one state, and only have one means of communication, and in regard to
internal affairs the federation should be many states-
Mr. GORDON: These are not internal affairs!
Dr. COCKBURN: These are internal affairs, and it is one of the principles of federation
that, in internal affairs, there should be complete autonomy. In local affairs, why do you
want to go outside the state at all? For the alteration of the constitution of a state, why
should you go outside the boundary of that state?
Effectively, “external affairs” referred to in the constitution deals with nations/territories not
within the Commonwealth of Australia and/or under the British parliament. The Delegates did
refer to the “Home Office” when referring to contact with the British government, as it is the
“home” of the Commonwealth of Australia, which exist only because of the States (formally
colonies) being granted Letters Patents to have their own limited self government under British
law.
Mr. BARTON: The hon. member who is in the chair will be able to inform you. He said:
I do not think there is in this Convention a stronger advocate of State rights and State
interests than I am; but still I strongly support the clause as it stands, for it seems to me that
one of the very fundamental ideas of a Federation is that, so far an all outside nations are
concerned, the Federation shall be one nation, that we shall be Australia to the outside
world, in which expression. I include Great Britain; that we shall speak, if not with one
voice, at all events, through one channel of communication to the Imperial Government;
that is, as it has been put, we shall not have seven voices expressing seven different
opinions, but that Her Majesty's Government in Great Britain shall communicate to
Her Majestys Government in Australia through one channel of communication only.
Again;
Her Majesty's Government in Great Britain shall communicate to Her Majestys

Government in Australia
It is clear that the Framers of the Constitution referred to the one and only person and any
purported title of a legal fiction of “Queen of Australia” cannot amend or purport to amend the
Constitution, or the application of the Constitution.

Mr. BARTON (New South Wales).-The Drafting Committee could not interpret the
intentions of the Convention, excepting in so far as they found them expressed in the
Bill, in the amendments, or in the debates. We have endeavoured to give effect simply
to what the Convention have said and done.
And
Sir RICHARD BAKER (South Australia).-
When we consider how vast the importance is that every word of the Constitution
should be correct, that every clause should fit into every other clause; when we
consider the great amount of time, trouble, and expense it would take to make any
alteration, and that, if we have not made our intentions clear, we shall undoubtedly
Page 196
have laid the foundation of lawsuits of a most extensive nature, which will harass the
people of United Australia and create dissatisfaction with our work, it must be evident
that too much care has not been exercised.
Mr. GLYNN (South Australia)[12.35]: I have not the Federal Council Bill before me; but
I believe that that bill contained the words "sailing between the ports of the colonies." The
bill was sent home with those words in it; but her Majesty's advisers at home deliberately
changed the wording of the measure so as to give the Council wider jurisdiction. There was
a limitation in the bill which does not appear in the act, and the Imperial authorities must
have made this alteration for some specific purpose. They could not have accidentally
inserted the words "port of clearance, or." There is no danger of conflict between the
laws of the commonwealth and the Imperial law. The moment a new act is passed in
England which conflicts with any legislation passed by the commonwealth, that act
will to the extent of the difference abrogate the legislation under the constitution of
Australia. At the present time there is never any conflict. Our Marine Board and
navigation acts are not in conflict with the English merchant shipping acts; but they
give us jurisdiction, not to the 3 miles limit, but within Australian waters, as
specifically defined in these acts, that is, between port and port. Without these acts we
should not have this jurisdiction. As I understand the law, it was decided in the case of
the Franconia that, the 3-mile limit only applied in connection with intercolonial
disputes, that limit being arrived at in the first instance because it [start page 247] was
then the range of a cannon shot; and that civil and criminal jurisdiction stopped at
low-water mark. Originally there was no jurisdiction beyond the limits of mean low-
water mark; but that jurisdiction has been extended by legislation, and the Imperial
authorities deliberately changed words in the Federal Council Bill which would place
a limitation upon the existing jurisdiction as defined by our local acts, so as to amplify
it, and make it apply to any vessel leaving our ports for foreign parts, or coming from
foreign parts to the colonies. They did this deliberately, and in view of the fact that
there was no possibility of conflicting decisions being arrived at under the proposed
constitution, we have no criminal jurisdiction at all, so that if a crime is committed on
board a ship coming to Australia, the criminal will be tried according to the laws of
Great Britain.
We cannot give a sanction to a law

The Hon. E. BARTON:
without imposing some penalty or punishment!
Mr. GLYNN: The hon. and learned gentleman is quite right; but we have only
power to impose such penalties as will operate as sanctions for the civil legislation
under clause 52.
The Hon. E. BARTON: We cannot establish a new criminal offence!
Mr. GLYNN: No, unless it is part of a sanction to enforce the obligation of a civil
law. So that if an offence is committed on board a ship coming to the commonwealth it
will have to be dealt with according to the law of England, not according to the law of
the commonwealth. Seeing that the English authorities deliberately changed the
wording of the Federal Council Bill, although there is no possibility of the legislation
of the colonies clashing with Imperial legislation, because English legislation must
Page 197
abrogate colonial legislation to the extent of the difference between them, I think we
should accept the words used by the Imperial advisers of her Majesty.
The latter about “abrogating” colonial laws do not apply when it comes to the Commonwealth of
Australia Constitution Act 1900 (UK) in that this provides that amendments of the Constitution
can only be made by a successful section 128 referendum. As such, it excludes powers of the
Imperial government (British Parliament) to amend the Constitution. However, State laws
remain subject to Imperial laws and are abrogated where they are in conflict of Imperial laws.
Again;
They did this deliberately, and in view of the fact that there was no possibility of
conflicting decisions being arrived at under the proposed constitution, we have no
criminal jurisdiction at all, so that if a crime is committed on board a ship coming to
Australia, the criminal will be tried according to the laws of Great Britain.
The Statement;
There is no danger of conflict between the laws of the commonwealth and the
Imperial law. The moment a new act is passed in England which conflicts with any
legislation passed by the commonwealth, that act will to the extent of the difference
abrogate the legislation under the constitution of Australia. At the present time there
is never any conflict. Our Marine Board and navigation acts are not in conflict with
the English merchant shipping acts; but they give us jurisdiction, not to the 3 miles
limit, but within Australian waters, as specifically defined in these acts, that is,
between port and port.
Is not correct in that while normally the imperial government can make specific legislation to
amend a constitutional enactment, in this case it has ousted itself of doing so by including the
Section 128 provision.
Mr. SYMON:
There can be no doubt as to the position taken up
by Mr. Carruthers, and that many of the rules of
the common law and rules of international comity
in other countries cannot be justly applied here.
In the Shaw case the high Court of Australia stated;
42. Jason Shaw, the applicant, migrated to Australia with his parents in 1974. He was then
two years of age and a citizen of the United Kingdom. Along with his parents, he was
granted a permanent entry permit. Under reg 4 of the Migration Reform (Transitional
Provisions) Regulations (Cth), after 1 September 1994 the permanent entry permit held by
the applicant continued in effect as a transitional (permanent) visa that permitted the
applicant to remain in Australia indefinitely. He has never left Australia since arriving in
1974. However, he has never become an Australian citizen.
Again;
Page 198
However, he has never become an Australian citizen.
The judges simply seemed not to realize that they were talking about “citizenship” involving
political rights and not at all being about nationality.
Mr. SYMON.-
I am not going to put that in the power of any one, and if it is put in the power of the
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 a
question 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 or
diminished by the Federal Parliament! When we declare-"Trust the Parliament," I am
willing to do it in everything which concerns the working out of this Constitution, but I am
not prepared to trust the Federal Parliament or anybody to take away that which is a
leading inducement for joining the Union.
Therefore, Mr Shaw was an “Australian citizen” the moment he entered the Commonwealth of
Australia and began to reside in a State by obtaining State citizenship! He remained for all
purposes a “subject of the Queen” and as the Commonwealth of Australia is a limited
POLITICAL UNION and not a nation in its own rights one cannot have a nationality of being
an Australian (as incorrectly referred to being Australian citizenship”) as no such nation exist!
To hold that the Commonwealth of Australia is an independent “nation” would mean to claim
that the States no longer exist as such. The federation then was a confederation!
For the extensive set out above, it is clear that Jason Shaw was an Australian citizen from the
moment he came to reside in a State in the Commonwealth of Australia.
The High Court of Australia has only constitutional powers to interpret the meaning of the
Constitution provisions by the intentions of the Framers and it has no constitutional powers to
pursue to bring within the meaning of constitutional provisions that were never intended by the
Framers to be so!
Ex Parte Lovell; Re Buckley (1938) 38 S.R. N.S.W. 155 at 158; 55 W.N. 63 Jordan C.J.
“This court however must take the act as it finds it, and cannot do violence to its language in
order to bring within its scope, cases, which although within its mischief are not within its
words.”
The following ought to be applied perhaps to Shaw, Sue v Hill and the Sykes v Cleary cases, to
mention a few, this as those cases, in my view were based upon ill conceived reasoning, and not
at all as to the intentions of the framers of the Constitution;
Duncan v Queensland (1916) 22 CLR 556, 582 (per Griffith C.J.)

“That case (a previous decision of the High Court, Foggit, Jones & Co v NSW (1915) 21
CLR 357) was very briefly, and I regret to say, insufficiently argued and considered on the
last day of the Sydney sitting..... The arguments which now commend themselves to me as
conclusive did not find entrance to my mind. In my judgement that case was wrongly decided,
and should be overruled.”
The Shaw case;

Page 199
45. In July 2001, the Minister cancelled the applicant's visa on the ground that he had a
substantial criminal record and did not pass the character test as defined by
HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html"
s 501 (6).
HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html" Section
501 does not apply to British citizens who arrived in Australia before 3 March
1986
46. There are only two heads of federal constitutional power that could arguably extend the
operation of HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html" s 501 to a
person such as the applicant who is a British citizen and who arrived in Australia in 1974.
The first is the immigration power; the second is the aliens power HYPERLINK
"http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l "fn49" [50] . A long line of
authority establishes that the immigration power does not authorise the Parliament
to make laws with respect to persons who have immigrated to Australia, made their
permanent homes here and become members of the Australian community
HYPERLINK "http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l "fn50" [51] .
Accordingly, the immigration power did not authorise the enactment of HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html" s 501 in so
far as it purports to apply to the applicant.
47. The aliens power, however, gives the Parliament greater power over immigrants than the
immigration power. In Nolan v Minister for Immigration and Ethnic Affairs
HYPERLINK "http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l "fn51" [52] ,
this Court held that any immigrant who has not taken out Australian citizenship is an
alien for the purpose of HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s51.html" s 51 (xix) of
the Constitution. On that view of the aliens power, the Parliament can legislate for
the deportation of persons who are British citizens and have been permanent
residents of Australia for many years. In Nolan, the Court upheld an order of the
Minister deporting Nolan, a citizen of the United Kingdom who had lived permanently in
Australia since 1967 but who had not taken out Australian citizenship.
48. In Re Patterson; Ex parte Taylor HYPERLINK
"http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l "fn52" [53] , however, a
majority of this Court held that Nolan should be overruled in so far as it held that all
British citizens living in Australia who had not taken out Australian citizenship were
aliens for the purpose of the Constitution. Taylor was a British citizen who had arrived in
Australia in 1966 and had since lived here permanently. However, he had not taken out
Australian citizenship. A majority of the Court held that HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html" s 501 of
HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/" the
Act could not constitutionally authorise the deportation of Taylor.
49. As I pointed out in Re Minister for Immigration and Multicultural Affairs; Ex parte Te
HYPERLINK "http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l "fn53" [54] ,
Re Patterson has no ratio decidendi. The four majority Justices were Gaudron, Kirby and
Callinan JJ and myself. Gaudron J held that Taylor was a member of the body politic
that constituted the Australian community and that British citizens who were
members of that body politic and had been in Australia before 1987 HYPERLINK
"http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l "fn54" [55] , were not
Page 200
aliens within the meaning of the Constitution. Kirby J held that Taylor was not an alien
when he arrived in Australia, that he "had been absorbed into the people of the
Commonwealth" HYPERLINK "http://www.austlii.edu.au/au/cases/cth/high_ct/2003/"
\l "fn55" [56] and that the Parliament could not retrospectively declare him to be an
alien. I held that British immigrants who settled in Australia before 1973 were subjects of
the Queen of Australia and could not be "aliens" for the purpose of the Constitution. I
selected 1973 as the earliest date on which the constitutional power to legislate with
respect to aliens could apply to British immigrants. I did so because 1973 was the
year in which the Parliament enacted the HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/rsata1973258/" Royal Style and
Titles Act 1973 (Cth). But I expressed the view that the relevant date "maybe later"
HYPERLINK "http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l "fn56" [57] .
Callinan J agreed with the reasoning of both Kirby J and myself.
While a judge of the High Court of Australia may elect judicial powers because of some
HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/rsata1973258/" Royal Style
and Titles Act 1973 (Cth). The truth is that this latter Act is irrellevant to the issue of
constitutional powers regarding “citizenship”.
Constitutionally,
Mr. SYMON.-
I am not going to put that in the power of any one, and if it is put in the power of the
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 a
question 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 or
diminished by the Federal Parliament! When we declare-"Trust the Parliament," I am
willing to do it in everything which concerns the working out of this Constitution, but I am
not prepared to trust the Federal Parliament or anybody to take away that which is a
leading inducement for joining the Union.
Therefore, becoming a citizen of the Commonwealth of Australia is only achievable by

becoming a state citizen first.
The fact that the Certificate of Australian Citizenship states;
QUOTE
Certificate of Australian Citizenship
GERRIT HENDRIK SCHOREL

Born on 7 th June 1947
having applied for a Certificate of Australian Citizenship, having satisfied the conditions
prescribed by the Australian Citizenship Act 19448 for the grant of such Certificate
and having undertaken to fulfil the responsibilities of a citizen.
END QUOTE
It must be clear that no kind of application can be made for this and neither can any be granted
by the Commonwealth of Australia in that it is AUTOMATICALLY obtained upon obtaining
“State citizenship”.

Page 201
Therefore, what is really occurring was that I applied to my understanding to naturalize and by
this dispose of my Dutch nationality to become a British national within the meaning of
Subsection 51(xix) of the Constitution, and the Commonwealth of Australia purport this to be
somehow to be “Australian citizenship”.

Likewise, the Commonwealth of Australia cannot turn naturalization into something else not
contemplated by the Framers of the Constitution.
Subsection 51(xix) naturalization powers had nothing to do with political rights, that are included
in citizenship, but related to alliance to the British Crown.
“Australia” is a continent, and was so before Federation, at least that is what I perceived was
applicable also at the time of Federation.
The Framers of the Constitution made clear that at all official functions the national anthem was
to bless the Monarch.
Mr. GLYNN:
The foundations of our national edifice are being laid in times of peace; the invisible
hand of Providence is in the tracing of our plans. Should we not, at the, very inception
of our great work, give some outward recognition of the Divine guidance that we feel?
This spirit of reverence for the Unseen pervades all the relations of our civil life. It is
felt in the forms in our courts of justice, in the language of our Statutes, in the oath
that binds the sovereign to the observance of oar liberties, in the recognition of the
Sabbath, in the rubrics of our guilds and social orders, in the anthem through which
on every public occasion we invocate a blessing on our executive head, in our
domestic observances, in the offices of courtesy at our meetings and partings, and in
the time-honored motto of the nation.

Sir JOHN DOWNER.-
Thus we are forced-after, forsooth, the 1891 Convention and the three sessions of this
Convention-back to the elementary consideration of whether this body is to be analogous to
the position of the House of Lords in [start page 2036] England, and we have the English
Constitution brought in, and an appeal made through our patriotism, and "God save the
Queen," and all that sort of thing. That is not the question which we have to deal with. We
have to do our best to arrange a Constitution which has very little analogy to the English
Constitution, but, at the same time, from the circumstances of our birth and the love of
country, we have to adhere to the English Constitution as nearly as is consistent with the
altered condition of things.
Whatever the argument might be of those seeking to advocate that the Commonwealth of
Australia is an independent nation, the truth is that constitutionally it never is and never can be.

Page 202
Mr. SYMON (South Australia).-I beg to move-
I wish to clear away the misconception in the first place that I have any objection whatever
to the word "Commonwealth," or to the use of the word "Commonwealth," in this Bill. I
have no objection to that where it is confined to the expression of the political Union. In
the preamble honorable members will find that what we desire to do is to unite in one
indissoluble Federal Commonwealth-that is the political Union-"under the Crown of the
United Kingdom of Great Britain and Ireland, and under the Constitution hereby
established." Honorable members will therefore see that the application of the word
Commonwealth is to the political Union which is sought to be established. It is not
intended there to have any relation whatever to the name of the country or nation which we
are going to 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.
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.
The first clause says-This Act maybe cited as the Commonwealth of Australia Constitution
Act." I assent to all that. Then comes clause 3, which says it shall be lawful for the Queen,
by and with the advice of Her Majesty's Most Honorable Privy Council, to declare by
proclamation that, on and after a day therein appointed, not being later than one year after
the passing of this Act, the people of the colonies enumerated shall be united in a Federal
Constitution under the name of-I say it ought to be "of Australia." Why do we want to put
in "the Commonwealth of Australia"? We are there by our Constitution giving the name to
our country, and, to the united people who are to be established as a nation under the
Constitution. By what name, I would like to ask honorable members, will they call this
Federal Union? It will be called by the name Australia, whether we like it or not.
Again;
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.
The Commonwealth of Australia is a LIMITED POLITICAL UNION by the Colonies (now

States) As like the EUROPEAN UNION is in Europe.
No one would seek to argue that the European Union is a country. Yet, it doesn’t matter if one is
a British national, a Dutch national, Frenchman, German or else they are all “citizens of the
European Union”
Citizenship is not limited to the nationality of the person but by the territory in which the person
resides that forms part of the European Union.
No one could dream of the European Union to become some Monarchy, Republic or Dominion.
Likewise, the Commonwealth of Australia likewise cannot be a Monarchy, Republic or
Dominion. It is a federation out of the States.
The States themselves can perhaps become independent in time and then assume to become a
Republic or Monarchy but not while they remain dominions. If the states cannot become
Monarchies or Republics in the current climate then their Agent, so to say, the Commonwealth of
Australia hardly can take on some different constitutional position.
The term “citizenship” was not at all associated with “nationality” but rather covered any
“subject of the Queen” residing within the Commonwealth of Australia or for that the continent
Australia.
Page 203
The terms “Australian citizen”, “Australian citizens” , “Australian citizenship”,

“Commonwealth citizens”, “federal citizen”, “citizen of the Commonwealth” were used ongoing
by the Framers of the Constitution, as shown below, and as such were terms not as to
“nationality” but in regard of citizenship as being a resident in the colonies (now States) and the
Commonwealth of Australia. Therefore any constitutionalist, as I am, is or should be aware that
the term “Australian citizenship” cannot be held to relate to nationality. Neither that there can be
an “Australian nationality” merely because some judges happen to desire to make such a
declaration as the proper powers to legislate for this is to follow the procedures within Section
128 of the Constitution.
13-02-1890 Re; Australian citizen

13-03-1891 Re; Australian citizens
Re; dual citizenship
26-03-1897 Re; citizen of the Commonwealth
29-03-1897 Re; Dual citizenship
30-03-1897 Re; federal citizen
Re; citizen of the Commonwealth
15-04-1897 Re; Dual citizenship
Re; Commonwealth citizenship
28-01-1898 Re; Australian citizenship
Re; Commonwealth citizens
Re; federal citizenship
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Such as Hansard 8-2-1898 Constitution Convention Debates
Mr. SYMON.-Yes. Mr. Wise asked why should New South Wales or Victoria-to take a case
which is extremely unlikely to occur-prohibit a citizen of the neighbouring colony from
acquiring property in the legislating colony, or only allow him to acquire it under adverse
conditions? But why not? The whole control of the lands of the state is left in that state. The
state can impose what conditions it pleases-conditions of residence, or anything else-and I
am not aware that a state has surrendered the control of the particular administration of
its own lands, or of anything that is left to it for the exercise of its power and the
administration of its affairs. I would much prefer, if there is to be a clause introduced, to have
the amendment suggested by Tasmania, subject to one modification, omitting the words-"and all
other persons owing allegiance to the Queen." That would re-open the whole question as to
whether an alien, not admitted to the citizenship here-a person who, under the provisions
with regard to immigration, is prohibited from entering our territory, or is only allowed to
enter it under certain conditions-would be given the same privileges and immunities as a
citizen of the Commonwealth. Those words, it seems to me, should come out, and we should
confine the operation of this amendment so as to secure the rights of citizenship to the citizens
of the Commonwealth. I think, therefore, that with some modification the amendment suggested
by Tasmania would be a proper one to adopt.
And
Mr. KINGSTON.-I say we are creating a Commonwealth in which I hope there will be a
federal citizenship, and I shall be glad indeed to see the powers of the Federal Parliament
enlarged to enable that body to legislate, not only with reference to naturalization and
aliens, but also with reference to the rights and privileges of federal citizenship.
An HONORABLE: MEMBER.-What is the meaning of citizenship?
Mr. KINGSTON.-It is not defined here, but it ought to be defined in the Constitution, or
else we ought to give power to the Federal Parliament to define it. And, after having
defined what shall constitute Australian citizenship for the purposes of the
Commonwealth, we ought to carefully prevent any state legislating in such a way as to
deprive any citizen of the Commonwealth of any privileges which citizenship of the
Commonwealth confers within its borders. I have the honour to come from a state which
has already adopted a system of absentee taxation, but I do not hesitate to say, speaking on
my own individual account, that I think the continuance of that system, applied to citizens
of the Commonwealth resident in other states of the Commonwealth, would be a great
mistake and an unfederal act.
Mr. HIGGINS.-If a rich South Australian went to live in Tasmania, on account of the
cool climate, would you allow the imposition of the absentee tax on him?
Mr. KINGSTON.-I do not think it ought to be imposed on him.
And
An HONORABLE MEMBER.-How would that affect a tax on absentees?

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Mr. WISE.-It would give full power to impose a tax on absentees outside the
Commonwealth, but not within it. There [start page 675] should be no absentees within the
Commonwealth after federation. I do not see, how, after federation, a man can be regarded
as an absentee at Sydney when he lives in Melbourne. If we are to have federation, the idea
that when a man moves from one part of the Commonwealth into another he becomes an
absentee, or ceases to be an Australian, is one that must vanish, and we ought, as far as our
Constitution will permit us, to do everything to make it vanish quickly. It is a survival of
the old idea that there is a distinctive citizenship in a Victorian, and a distinctive
citizenship in a New South Wales man. That is the idea which I am endeavouring to
destroy by supporting the amendment of Tasmania, that Australian citizenship, and that
alone, shall be recognised in every part of the Federation. The way to secure that is to
provide in the clearest terms, as Tasmania suggests, that no local Parliament can have any
authority to, in any way, abridge the citizenship of an Australian.
Mr. REID (New South Wales).-I really think that the constant attempts which are being
made to interfere with the rights of the states, in matters which are left to them expressly, is
becoming quite alarming. There are a number of general words already in this Constitution
which, I fear, may be used so as to almost destroy the independent powers of legislation of
the states, with reference to every conceivable subject that they have left to them.
For the above, and what already has been placed before on file in previous proceedings the issue
therefore is that if the Commonwealth of Australia holds that “Australian citizenship” purports
some kind of Australian nationality then this is ULTRA VIRES, as no such constitutional
powers were granted by the Imperial parliament and neither by any Section 128 referendum.
Section 51(xix) only provides for naturalization of “aliens” to be made “British nationals”.
The problem with this is that if the Australian Citizenship Act 1948 purports to be “Australian
nationality” then this likewise is unconstitutional and so ULTRA VIRES.
If therefore the Constitution of the State of Victoria relies upon the Australian Citizenship Act
1948 as to provide State “franchise” then this is also ULTRA VIRES, as an the State cannot rely
upon an unconstitutional enactment.
If the Australian Citizenship Act 1948 is purporting to grant “citizenship” as to refer to political
rights then that too would be unconstitutional, and so ULTRA VIRES.
If the “AUSTRALIAN CITIZENSHIP” referred to in the “Australian Citizenship Act 1948”

in fact is and remains to mean that a person is naturalized to be a British national, then in any
case it is ULTRA VIRES where it purports to define/declare the nationality of any person born
within the States, as any subject born within the realm of the King (Queen) is automatically a
national and so a subject of the British Crown. Any reliance by the State Constitution to allow for
franchise based upon a unconstitutional provision in that regard also remains ULTRA VIRES.
It ought to be kept in mind that in 1948 most likely no one really has a slightest understanding
and perception as to what was constitutionally appropriate. Whatever was enacted at the time by
ill conceived perceptions cannot make it lawful. It remains ULTRA VIRES for so far it is
beyond constitutional powers or exceeding constitutional powers.
As the Framers of the Constitution made clear that the Commonwealth of Australia could put a
disability to any “alien” upon naturalization to obtain “citizenship”, this by legislation any race is
subjected to provided within subsection 51(xxvi) of the Constitution or otherwise being limited,
such as that a person naturalized cannot obtain citizenship within, say, 2 years of naturalization,
then a “Certificate of Australian Citizenship” cannot be granted to anyone. For example, since
Page 206
the 1967 referendum that provides for Aboriginals to be dealt with under the “race” provisions of
Section 51(xxvi) constitutionally not a single Aboriginal can have citizenship involving franchise
as they are constitutionally barred once the Commonwealth of Australia enacted legislation
within its race constitutional powers.
Likewise, while the race powers did not give the Commonwealth of Australia any powers to
legislate against the “general community” the fact that the Commonwealth of Australia
nevertheless did so and so with the Racial Discrimination Act, by this in effect it also robbed
each and every citizen of their right to have franchise and indeed be a Member of Parliament!
Because “Australian citizenship”, albeit wrongly, has been the core requirement of numerous
positions, such as to be a judicial officer, to be a police officer, to be a Member of Parliament,
etc, it is having horrific consequences that follows from what currently is so wrongly applied.
Still, the rule of law, so constitutional law, must be applied in a proper manner, and not some
Banana Republic kind of system.
The Commonwealth Electoral Act 1918 also relies upon the unconstitutional declaration/
definition of “Australian citizenship” as to provide for “franchise” where in fact “franchise in the
Commonwealth of Australia is obtained only by having obtained State franchise through “State
citizenship”.
What is missing is the States legislation to provide for State citizenship and by this for
“franchise”!
Moller v The Board of Examiners [1999] VSC 55 (10 March 1999)
16. The concept of allegiance was considered by Ormiston, J. (as he then was) in Nicholls v.
Board of Examiners for Barristers and Solicitors [1986] V.R. 719. At p.728 his Honour
said:
"Allegiance is a concept which is at the same time both obvious and subtle. Its precise
nature has varied over the centuries in ways which it is unnecessary to discuss here.
For those reasons it is undesirable to say more about the duty of allegiance than is
necessary for the decision in this case. It should be observed, however, that it is not
now an obligation peculiar to monarchical systems of government, whatever may have
been its basis in Stuart times: cf. the Case of the Postnati:: Calvin's Case (1608) 7 Co.
Rep. 1a; 2 State Trials 559; 73 E.R. 761 and Re the Stepney Election Petition (1886)
17 Q.B.D. 54. Secondly, the present case does not concern the oath of allegiance to be
given by a subject, national or citizen. Even when an alien had virtually no rights, the
correlative right of protection by the sovereign was sufficient to justify a duty of
allegiance on the part of aliens, at least aliens from friendly countries, who lived
within the realm. Since the disabilities of aliens have been largely abolished, except as
to the right of entry into the country, their duty of allegiance, when they live within
this country, cannot be disputed. On the other hand, I have found no authority, at least
since the Middle Ages, which suggests that the taking of an oath of allegiance creates
any new or different obligation on a resident foreign national. In making this latter
observation, I am in no way referring to those oaths which are taken as part of a
naturalization ceremony or which otherwise contain a renouncing of all other
allegiance, as appears in the oaths in Schedules 2 and 3 to the HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/aca1948254/" Australian
Citizenship Act 1948. I add that what I have said as to the status of aliens appears
applicable to all those who do not owe a general duty of allegiance and I say nothing
Page 207
as to the effects of the repeal of the HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/num_act/aa194775/" Aliens Act 1947 and
the prospective repeal of the definition of 'alien' in the HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/aca1948254/" Australian
Citizenship Act 1948 (Act No. 129 of 1984, HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/c167/s4.html" s.4 (2)(a)).
Consequently there would appear to be significant differences between the local duty
of allegiance owed by aliens or non-citizens, and that owed by citizens or those who
otherwise owe a general duty of allegiance. When Parliament amended s.5(2) of the
Legal Profession Practice Act 1958, it chose to retain the obligation to take an oath of
allegiance for those who wished to become admitted to practise, but gave a right to
those applicants to seek exemption from that obligation. As was pointed out by the
Chief Justice in Re Miller [1979] V.R. 381, at p.383, this appears to be a recognition
by Parliament of the importance attaching to that obligation. It is therefore neither
necessary nor desirable that any opinion should be expressed as to the right of persons
other than aliens or non-citizens to seek exemption under the amended sub-section.
The present applicant is a citizen of a foreign country and the considerations applicable
to him are not necessarily considerations applicable to citizens of this country, nor to
persons who may hold dual citizenship."
Dual citizenship is not a dual nationality this as the Framers of the Constitution made clear;

Mr. SYMON.-
Dual citizenship exists, but it is not dual citizenship of persons, it is dual citizenship in
each person. There may be 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 the dual citizenship.
Supreme Court of Victoria - Court of Appeal
Moller v Board of Examiners for Legal Practitioners [1999] VSCA 116 (30 July 1999)
24. Mr Bevan-John's next submissions related to the appellant's personal position. He put it
that the appellant has already publicly and deliberately declared his allegiance to
Australia and that the purpose of his taking the oath has been fulfilled by his pledge upon
taking citizenship. He submitted that it was unfair to use the exemptive power under
HYPERLINK "http://www.austlii.edu.au/au/legis/vic/consol_act/lpa1996120/" the
Act to excuse those who do not want to make any commitment of allegiance to
Australia at all and to deny it in respect of one who has already made the solemn pledge
of that allegiance when he formally undertook Australian citizenship.
And
32. The requirement which the Court imposes on those seeking admission to practise as
barristers and solicitors in this State to take an oath or make an affirmation of allegiance
retains a significance which goes beyond the mere academic and the pompous. Young,
C.J. explained its importance in Re Miller [1979] V.R. 381 at 383 in terms of the statutory

Page 208
recognition given by the Parliament to the oath of allegiance and its administration to
persons carrying out significant functions in this State.
33. To my mind his Honour's comments remain valid, notwithstanding the differences to be
found between the terms of HYPERLINK
"http://www.austlii.edu.au/au/legis/vic/consol_act/lpa1996120/s6.html" s.6 of the
HYPERLINK "http://www.austlii.edu.au/au/legis/vic/consol_act/lpa1996120/" Legal
Practice Act 1996 and those which existed in s.5 of the Legal Profession Practice Act
1958. As Street, C.J. said in Re Howard [1976] 1 N.S.W.L.R. 641 at 643, the significance
of the oath being administered to those wishing to practise as barristers and solicitors is
its reminder to them that their role will be to serve law and justice in the State, of which
the Sovereign is the fountainhead.
34. It is, therefore, not surprising that the Court, in exercising its role as the ultimate
controller of the profession, imposes as one of the prerequisites for admission to practise
a promise of allegiance and does not lightly entertain applications to exempt persons from
that obligation. Where, as here, exemption was sought on the grounds of a strongly held
commitment to a republican model of government and a fear of compromising conscience
and principles if required to take an oath of allegiance, it is equally, in my view, not
surprising that His Honour exercised his discretion against exemption.
Again;
He submitted that it was unfair to use the exemptive power under HYPERLINK
"http://www.austlii.edu.au/au/legis/vic/consol_act/lpa1996120/" the Act to excuse
those who do not want to make any commitment of allegiance to Australia at all and to
deny it in respect of one who has already made the solemn pledge of that allegiance when
he formally undertook Australian citizenship.
What was misconceived was that the “oath of alliance” is not as to “citizenship” but to
“naturalization” in regard of Subsection 51(xix) op the Constitution The oath of alliance to be
admitted to the Bar to practice in the State of Victoria is a different kind of alliance as it related
to uphold the specific laws of the State of Victoria. The oath of alliance in the State of NSW, for
example, is to uphold the laws of that State when seeking admission to the Bar there.
There can be no “oath of alliance” in regard of “Australian citizenship” as referred to by the
Framers of the Constitution as it is obtained “AUTOMATICALLY” when obtaining state
citizenship.
As I perceived it at the time of what I considered to be “naturalization” I made an oath of alliance

to become a subject of the British Monarch and indeed the Dutch Government advised me that
by taking up this naturalization I no longer have the Dutch nationality. This being so then clearly
the “oath of alliance” was in regard of the naturalization powers provided for within Subsection
51(xix) to naturalize “aliens” to become British nationals, and as such nothing to do with
“citizenship” as to being to include “franchise”.
It is not relevant if the intentions of the Commonwealth of Australia is to include “franchise” as

it simply is unconstitutional and so ULTRA VIRES.
Many “aliens” who arrived as children in the Commonwealth of Australia with their parents,
who subsequently naturalized, found that years later they never were actually naturalized even so
Page 209
they were voting in elections. Indeed, the Australian Electoral Commission is on record that
people were found not to be naturalized and so not entitled to vote even so they had filled out a
card to be an Australian citizen and so entitled to vote.
What has occurred that often “children” understood, as their parents did, that they were
naturalized at the time their parents were but this was somehow omitted from the documentation
to show so. My own 45 year old stepdaughter discovered this only a few years ago! By this,
while she considers herself to be an State citizen, and so an Australian citizen and also having
been naturalized, the Commonwealth of Australia however never accept any of this. The Pochi
case is another clear example, where Mr. Pochi was deported where the High Court of Australia
in 1982 held he was not an “Australian citizens” despite that he had lived for most of this life and
had children here. The High Court of Australia confusing “Australian citizenship” with
“nationality”.
To many “Australian citizenship” remains to be relating to having political rights and nothing to
do with nationality, and yet the Commonwealth of Australia keep advertising about “Australian
citizenship” but in real terms may and does in fact refer to some concocted “Australian
nationality” even so no constitutional powers exist in that regard.
Therefore, the fact that I had filled in enrolments cards to vote in Federal elections is of no
meaning where this was done upon misconceptions created by the Commonwealth of Australia
itself to refer to “Australian citizenship” but which in fact was not at all referring to “franchise”
of citizenship as such but to some purported Australian nationality.
As a self educated “constitutionalist”, I view that the Racial Discrimination Act in effect (even
so unconstitutional in its conception) in fact robs every person of their “citizenship” and so their
“franchise” as the Framers made clear that any legislation within the race provisions disqualified
every such person of their “citizenship” and so their franchise”. Hence, there can be no one who
is eligible to vote or to be a Member of Parliament.
In any event, where I claim that constitutionally I am a British national if the naturalization was
effected within the constitutional provisions of subsection 51(xix) of the Constitution, and the
High Court of Australia already made clear in Sue v Hill that British nationals are “foreigners”
(“aliens”) and so kicked out Heather Hill, then clearly I cannot be deemed to be entitled to vote
in any event. Australians are “Australians” by the fact that they are residing within the
Commonwealth of Australia, not because they are naturalised or born in the Commonwealth of
Australia.
Those born in the United Kingdom, but residing then in the colonies (now States) and
participating in the Constitution Conventions to create a federation nevertheless
considered themselves to be Australians, besides being British nationals.
Lord Denning M.R. in Reg. v.

Governor of Brixton Prison; Ex parte Soblen (1963) 2 QB 243, at p 299, stated
4. The law of this country is very jealous of any infringement of personal

liberty (Cox v. Hakes (1890) 15 App Cas 506, at p 527) and a statute or
statutory instrument which purports to impair a right to personal liberty is
interpreted, if possible, so as to respect that right: R. v. Cannon Row Police
Station (Inspector) (1922) 91 LJKB 98, at p 106.

Page 210
CHU KHENG LIM AND OTHERS v. THE MINISTER FOR IMMIGRATION, LOCAL
GOVERNMENT AND ETHNIC AFFAIRS AND ANOTHER (1992) 176 CLR 1 F.C. 92/051
14. Aliens, not being members of the community that constitutes the body
politic of Australia, have no right to enter or remain in Australia unless
such right is expressly granted. Laws regulating their entry to and providing
for their departure from Australia (including deportation, if necessary) are
directly connected with their alien status. And laws specifying the
conditions on and subject to which they may enter and remain in Australia are
also connected with their status as aliens to the extent that they are capable
of being seen as appropriate or adapted to regulating entry or facilitating
departure if and when departure is required((107)
This indicates that permission to be and remain in Australia is not depending on being a natural
or born national, but rather if one has become a member of the body politic of Australia. This
body politic is in fact being an Australian citizen.
The right of exercising any rights as an “Australian citizen” is enshrined in the Constitution
Mr. DEAKIN.-
In this Constitution, although much is written much remains unwritten,
It falls under personal liberties to exercise ones right to vote or not to vote.
LEGAL FICTION
Sue v Hill Authority;
GRADUAL INDEPENDENCE, that is what the High Court of Australia argued in the Sue v Hill
case to oust her, despite being a subject of the British Crown from the Senate. Quit frankly, at
that time, I had myself argued that in 1919 by the signing of the Treaty of Versailles the
Commonwealth of Australia had become in effect an INDEPENDENT nation and by this the
Commonwealth of Australia Constitution Act 1900 (UK) was no more valid then any other
colonial legislation.
The Family Court of Australia even published this in its judgment!
But, while I had this great kind of argument as to why the Commonwealth of Australia was an
INDEPENDENT nation, I later discovered that constitutionally this could not be so. If, the
Commonwealth of Australia somehow became an INDEPENDENT nation then at some point of
time legislation enacted in the commonwealth of Australia and in any of the states would be
defective as they would no longer be what the respective Constitutions required.
The commonwealth of Australia exist as a part POLITICAL UNION between the States, and it
would be sheer impossible for the Commonwealth of Australia to somehow then dictate the
States if it remained to be colonial entities or become independent. No such constitutional
powers were ever provided for in the Commonwealth of Australia Constitution Act 1900 (UK)
and the Framers of the Constitution clearly opposed such possibility without a Section 128
referendum! Indeed, they made clear that the Commonwealth of Australia could not , so to say,
throw off the Imperial connection under this Constitution.
The signing of the Treaty of Versailles could not have somehow invoked the Commonwealth
of Australia to become INDEPENDENT and neither can there be something like a gradual
Page 211
becoming of INDEPENDENT as to even contemplate this on constitutional grounds would mean
that having a Constitution is of no avail as no one will know when things are purportedly
changed over time as it be the judges who may declare what they view by hindsight.
The POLITICAL UNION between the Colonies (now States) to form a political alliance, albeit
partly, was a contract that was binding among them. However, can we accept that somehow a
contracts between them on partial political issues somehow then can change everything?
Would this mean that if tenants of a building are making an alliance then somehow they can
become the owners of the building merely because they claim that over time they became the
owners by what they did?
As the Framers of the constitution made clear, “external affairs” gave the Commonwealth of
Australia powers to make treaties but only for so far it already was within its constitutional
powers. It could not use it to acquire somehow powers it didn’t possess in the first place. As
such, while the Commonwealth of Australia, for example, may make a treaty with any other
foreign nation that their citizens drivers licences will be accepted as valid without needing a
international driving licence, the truth of the matter is that there is no constitutional powers for
the Commonwealth of Australia to do so in the first place, as only the States have the legislative
powers in that regard.
If it were to be allowed for the Commonwealth of Australia to make any kind of treaty in regard
of matters the Commonwealth of Australia Constitution Act 1900 (UK) specifically withheld
any legislative powers for, then the whole notion of having a Constitution that can only be
amended by way of Section 128 referendum no longer is applicable as the Commonwealth of
Australia can simply circumvent any constitutional limitation by making treaties in regard of
matters it didn’t have constitutional powers for.
The Constitution is “constant” and can only be amended by Section 128 referendum. CoAG
(Council of Australian Governments) is an unconstitutional entity and cannot therefore somehow
circumvent Section 128 provisions either.
When I contested the legal validity of the application of the Cross Vesting Act, in 1994, I was, so
to say, thrown out by the Courts, yet in 1999 the High Court of Australia in the Wakim case then
formally declared the purported Cross vesting act to be unconstitutional.
In my 28 October 2002 to Mr Justice Michael Kirby I contested the validity of the Australian
Act, and on 17 June 2003 His Honour in the MIMA case then made clear the Australian Act had
no legal enforcement against the Constitution.
It doesn’t matter if the States therefore somehow agreed to the enacting of the “Australian Act”
as it was beyond the powers of Subsection 51(xxxvii) to allow for this in that this subsection only
allows for matters to be referred that is in dispute between two or more States but not all States.
The “Australian Act” could not be held to have been a matter of dispute between two or more
States such as the Murray River can be!
There never was any constitutional powers given to the High Court of Australia to declare the
Commonwealth of Australia to be some alleged INDEPENDENT nation as its constitutional
powers are bounded by the limits of the Constitution.
Are we next going to have that essentially we have become part of the Republic of Indonesia
because we now are enacting legislation dealing with refugees to please the Indonesian
Government?
As Author of various books about certain constitutional issues under the INSPECTOR-
RIKATI® label I have extensively canvassed those constitutional issues, and rely upon my past
published books also in support of this argument that Australians are Australians because they
Page 212
are living in the Continent of Australia and that they are British nationals and this is
EMBEDDED in the Constitution to remain so. No one can point out that there is a country
named Australia where it makes laws regarding, say, driving licences, council rates, etc for the
whole of the nation. The Commonwealth of Australia doesn’t even have legislative powers over
local governments in the States.
It is simply a LEGAL FICTION that the Commonwealth of Australia is a INDEPENDENT

nation, and so also that somehow the Commonwealth of Australia has a “Queen of Australia”.
Would it not encompass that judicial officers who made an oath of alliance to the British
Monarch and since remained judges of the Courts but never did make a new alliance to the
pretended “Queen of Australia” then are disqualified from sitting as judicial officers at the
bench of the Queens Courts?
Surely, no one could accept that lawyers who swore an oath of alliance to the British Monarch
somehow could continue to be members of the Bar and be judicial officers when we somehow
now hold that the British Monarch and its subjects are all “foreigners” and ousted from not only
voting but also from being Members of Parliament, as Heather Hill was?
When I applied to naturalize it was in the perception that the I would become a British national
with the British Crown as head of the Empire. It is not, in my view, for the High Court of
Australia then to somehow imply later with the Sue v Hill case that somehow I never gained any
alliance to the British Crown, neither became a subject of the British crown but somehow
became a subject to a non existing Queen of Australia of a fictional country.
In my 30 September 2003 published book titled;
ISBN 0-9580569-6-X
I canvassed the issue then about the case of Pauline Hanson and David Ettridge as to what I
considered to be their wrongful conviction. I pointed out that it was immaterial what was stated
on the flip side of the membership card as what was relevant was that the membership Card
showed that the person was a Member of Pauline Hanson One nation and as such were full
members for purpose of legislation. On 8 October 2003 the Queensland Attorney-General and
Minister of Justice then wrote to me that in fact legal issues I had raised had not been canvassed
by any of the parties in any of the proceedings. Yet, subsequently the Court of Appeal about
word for word used the very legal argument I had used in my book as to overturn the
convictions.
What was clear is that those who joined Pauline Hanson One Nation for all purposes were
“Members” regardless of what may have been stated otherwise to try to interfere with this on the
flip side of the membership card.
Likewise, I naturalized to become an British national referred to as “Australian” because of being

resident in the Commonwealth of Australia, and do not accept that somehow years later the High
Court of Australia, and notably beyond its constitutional powers (as it did with the MABO case,
as the colonies joining Federation did not accept there was a native title issue in Australian
colonies existing) can then interfere with my constitutional rights being a British national. It is
not relevant for this if the British Parliament did or did not legislate as to Australians being
Page 213
“foreigners” as it would be ULTRA VIRES, as it has no legislative powers to deny Australians
their British nationality that is embedded in the Commonwealth of Australia Constitution Act
1900 (UK).
Mr. DEAKIN.-
In this Constitution, although much is written much remains unwritten,
Because no judge can be an adjudicator in his own cause, it must be clear that in effect not a
single judge could purport to have a position to decide this matter if his/her own position depends
upon the outcome of this matter to be decided.
It would be judicial bias for any judicial officer to decide a matter in which his very own survival
of being a judicial officer depends upon the outcome of the matter.
The first principles of British law incompetence, propter affectum to sit upon the trial must be
considered.
In my view a Jury of men in the language of omni exceptions majores could without difficulty
consider the matters and if it is tenable for a High Court of Australia to somehow create on its
own some kind of a LEGAL FICTION that does not exist but affects by this the very
constitutional rights enshrined in the Constitution!
Now, still assuming them to be a Jury, and of course invested with all the attributes of
Jurors at the Common Law, this challenge propter affectum certainly ought to hold good
for even were the statute construed as bearing out a different signification, still an
established right was not to be overturned by any supposed negative clause, but by a direct
and express affirmation. It was an immutable law of justice of Great Britain, in fact of
every civilised country on the face of the globe, and well laid down had that doctrine been
from time immemorial, so far had the doctrine been carried too, that Blackstone, book i p.
91. Christian's edition, conceives it impossible so monstrous and absurd an injustice should
ever exist any where, as that any man should be constituted a judge in his own cause.
And
Mr. Wentworth gave a very lucid explanation of what in law sedition meant, and how it
could most properly be applied, considering it a Scotticism. Mr. Chief Justice Forbes rather
thought the word had its origin from the Latin tongue, and his Honor, with much classic
taste, proceeding to elucidate his idea used an apt quotation from the Mantuan Bard -- from
the Æneid of Virgil 1 Book, lines 152, 3, 4, as follows:--
"Ac veluti magno in populo, cum soepe coorta est SEDITIO, soevitque animis ignobile
vulgus,
Iamque faces, et saxa volant -- furor arma ministrat."
After a most elaborate, eloquent, and argumentative appeal as to the justice and the facts
applicable to his client's case Mr. Wentworth again sat down.
Forbes C.J., Stephen and Dowling JJ, 20 June 1829
Source: Sydney Gazette, 23 June 1829
As already set out above that Australians (British nationals) are governed by Constitutional law
and British law! It is impossible for the High Court of Australia to somehow throw of the
Imperial powers while still maintaining that the Imperial legislation such as the Commonwealth
Page 214
of Australia Constitution Act 1900 (UK) remains in force albeit upon conditions what they
themselves consider is relevant. Some kind of, so to say, “cherry picking” tactic.
The mere fact that the people of the Commonwealth of Australia rejected a referendum to
become a REPUBLIC in itself underlines that Australians never accepted that the
Commonwealth of Australia is an INDEPENDENT nation but rather that it remains under the
British Crown.
Indeed, the monarchist argued that the British monarchy had been good to us and the Republican
were having their say why to keep this kind of pompous royalty if we can do without. The mere
fact that such kind of arguments were going on in itself indicates that the people of Australia
didn’t accept to become an INDEPENDENT nation and neither regarded to be so. While for
political purposes members of parliament and indeed those in seat of power of Government may
elect wanting to wield unlimited powers, it is not the function of the High Court of Australia to
look after their power hungry desires but to declare constitutional provisions as intended by the
Framers of the Constitution aligned with what was amended by successful referendums.
David Hick, as I view it, was therefore a British national by birth, irrespective if his mother was
born in the UK!
My children and grandchildren born in the Commonwealth of Australia are all British nationals,
as this is their birthright that was embedded in the Constitution!
For the record, it ought to be understood that my naturalization never involved any State official,
as it was done at 55 Kings Street, Melbourne at the then offices of the Immigration Department,
and as such unlike most other people my naturalization was purely conducted by Commonwealth
of Australia officers, who obviously lacked any constitutional powers to provide me with
“franchise” as that was a State matter. It can therefore neither be argued that somehow the state
of Victoria did provide me with “franchise” as it never did. It erroneously relied upon the
ULTRA VIRES Australian Citizenship Act 1948 as to somehow take it that I was granted
“franchise” where clearly this never could be so.
In the Moller v Board of Examiners for Legal Practitioners case it is clear that some “oath of
alliance” was required. Now, if there was some change of “oath of alliance” because of
purportedly the Commonwealth of Australia having become INDEPENDENT then at what time
was the “oath of alliance” taken by lawyers to practice at the Victorian Bar valid? And, when did
lawyers already have taken this “oath of alliance” to the British Monarch then make a new “oath
of alliance” to the purported “Queen of Australia”? Or is it that we have lawyers (including
judicial officers) where some have sworn an “oath of alliance” to the LEGAL FICTION of
Queen of Australia while others to the British monarch?
I take the position that it is not relevant what the High Court of Australia may purport to make
out of matters in the Sue v Hill case, as ultimately it is ULTRA VIRES where they are making
decisions that are in conflict to the intentions of the Framers (and so amended by the successful
referendums) as expressed in the Constitution.
I view it is beyond constitutional powers for the High Court of Australia to interfere with
constitutional provisions and as such we are and remain to be British nationals and ultimately it
will be up to the people to decide otherwise.

Mr. DEAKIN.-

Page 215
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.
Mr. SYMON (South Australia).-I wish to say one word or two before we part. I do not
intend to enter into any detailed examination of, or any elaborate apology for, the
Constitution which we have been engaged in framing. But, sir, no man can remain
unmoved upon this momentous occasion. We who are assembled in this Convention are
about to commit to the people of Australia a new charter of union and liberty; we are
about to commit this new Magna 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.
Again;
My view is that, “We, the people” have the only power to amend the Constitution and political
appointed judges who may lack any proper perception of what is constitutionally appropriate
have no powers whatsoever to rob us of our constitutional rights.
Again, if the High Court of Australia ruling in Sue v Hill that British nationals are not entitled to
franchise and sit in the parliament then this means every Australian by this is in effect excluded
from participating in any election, because of the embedded constitutional provision that we are
and remain British nationals by birth or by naturalization!
And, as the British Parliament did provide for what the Framers of the Constitution intended that
any person subjected to a race legislation by this is having a disability that denies the person to
have citizenship and so franchise (obviously as to avoid persons subjected to race legislation to
overturn the legislation) then by the unconstitutional Racial Discrimination Act each and every
Australian is by this disqualified to have citizenship and so also franchise and to be in the
Parliament.
Unlike what I did, I found it remarkable that the High Court of Australia never appropriately
quoted the Hansard records of the Constitution Convention Debates such as in the Sue v Hill,
Sykes v Cleary, the MABO, Pochi, and other cases. Indeed, in the Sykes v Cleary it incorrectly
referred to the Hansard records of the Constitution Convention Debates, taking it out of
context, as I have already extensively canvassed in previous published books. Hence, likely those
decision will be overturned in time to come as having been erroneously made.
Therefore, on this basis also, the Court could not invoke

legal jurisdiction as to federal jurisdiction because if
Australians are all disqualified to have citizenship and so to
be electors, by whatever reason set out above, then the Court
cannot entertain any alleged breaches of electoral laws.
It might also be asked if the Commonwealth tor of Public Prosecutors lawyers made an “oath of
alliance” to the FICTIONAL “Queen of Australia” or made an “oath of alliance” to the British
Page 216
Monarch. After all, we cannot uphold British constitutional law, as the Commonwealth of
Australia Constitution Act 1900 (UK) is by officers who have sworn an “oath of alliance’ to a
foreigner and by this are, so to say, perhaps bend to pursue their own cause regardless how
inappropriate and indeed unconstitutional this might be??
In my view, one can only have a “Queen of Australia” if there is such a country as Australia
where the government of that country has all powers over its subjects by its constitution. Clearly,
no such country exist, as like the European Union, the Commonwealth of Australia is a
LIMITED POLITICAL UNION where there can be no kind of monarchy existing.
The only reason that Australians have the Monarchy is not because the Commonwealth of
Australia is a Monarchy, but because it is created by a LIMITED POLITICAL UNION of the
Colonies (now States) who were and remain dominions of the British Empire. Hence, if the
States were to become independent then automatically the Commonwealth of Australia would by
this become INDEPENDENT provided such INDEPENDENCE was reflected by the people of
Australia to amend the Commonwealth of Australia Constitution Act 1900 (UK) that
Australians no longer would be British nationals, etc.
Again;
In my view, it would be sedition for any judge of the High Court of Australia, having made an
“oath of alliance” to the British monarch then to make a ruling against the Monarch that would
undermine the very intentions of the Commonwealth of Australia Constitution Act 1900 (UK)
that succession of the British Crown will be the monarchy, as for example by the Bill of Rights it
is well recognised that all judicial officers as well as Parliamentarians are to respect the
Monarchy and its position.
Also, as I pursued naturalization after about 23 years having resided in the State of Victoria, and
as such did not quickly get naturalized but indeed took my time to understand what seemed to be
applicable and for all purposed Her Majesty Queen Elizabeth the second was the rightful
Monarch to the British throne, and being the British Monarch who was for all purposes was and
remained the Queen under which Australian State and Federal laws are enacted, then a later
fictitious Queen of Australia for an INDEPENDENT Australia cannot be deemed to override
constitutional foundations.
By marriage, I had a name change, from “Schorel” to “Schorel-Hlavka”, to but for all purposes
remain the same person. As such, regardless if for title purposes there was some alleged name
change the person was and remained the British Monarch, the rightful Monarch in regard of the
Commonwealth of Australia.
As I understand it the British Monarch cannot obtain an other titles as Queen of Australia where
no such Monarchy exist. In my view, it is an insult to name the British Monarch “Queen of
Australia” as being a Queen without a country.
As the British Parliament enacted Section 51(xix) that the Commonwealth of Australia could
naturalize “aliens” to become British subjects, then neither the Commonwealth of Australia and
for this matter the High Court of Australia can turn this into naturalization of “aliens” to become,
say, Chinese, Japanese, Australian, Indonesian or whatever other kind of nationality. The British
Parliament had itself no legislative power but to provide for the Commonwealth of Australia to
naturalize “aliens” to become British nationals, being subjects of the British Crown.
Indeed, if the British Parliament were to have contemplated to provide for Subsection 51(xix) for
naturalization for “aliens” to somehow obtain nationality of anything other then British
nationality then its may itself have been guilty of sedition, as it could not undermine the British
Crown and rights to its subjects.

Page 217
In my view, the later Sue v Hill judgment, after I had already naturalized in 1994, cannot affect
my constitutional rights to be a British national, and neither that of my children and grand
children born in the Commonwealth of Australia, or for that matter other born or naturalized in
the Commonwealth of Australia.
As such, I am an Australian resident with British nationality since naturalization and failing there
being any State legislation as to define/declare “citizenship” it effectively means that no one is a
“State citizen” and hence neither “Commonwealth citizen” (Australian citizen).
For some years now I have promoted that there should be an OFFICE OF THE GUARDIAN, a
constitutional council, that advises the Government, the People, the Government and the Courts
as to the application and limitations of constitutional powers. Because there appear to be no such
constitutional council and judges appointed to the High Court of Australia lack to be
constitutionalist we are ending up having ill conceived judgements handed down that causes
uncalled problems. Then and only then will all people get the same kind of extensive information
and then judges can consider this kind of extensive information rather then unprepared and often
taking out of context or not considering at all Hansard records of the Constitution Convention
Debates.
“Naturalization” was never intended to include any legislative power to define/declare

citizenship and the Framers made clear that the States would retain their legislative powers to
define/declare citizenship. Hence, it is beyond constitutional powers of the High Court of
Australia to somehow include “citizenship” into “naturalization” as it would be ULTRA VIRES.
My stepdaughter, (now 45) herself having obtained several law degrees at Monash University,
such as in International Law, never realised then that she was in fact allegedly not naturalized at
the time her parents were, even so my wife insist even to today that to her perception she was
included in the naturalization.
It appears to me that the Commonwealth of Australia basically did a con-job to name the
legislation Australian Citizenship Act 1948, where it knew or ought to have known that the
framers of the Constitution referred to “Australian citizenship” in the same manner as being
“Commonwealth citizenship” and being only obtainable by obtaining “State citizenship”.
As the Framers made clear, to hand over to the Commonwealth of Australia to declare/define
“citizenship” would be to allow it to undermine al, provisions otherwise provided for in the
Constitution.
After all, if the Commonwealth of Australia could define/declare “citizenship” then by this it
could decide who shall or shall not have a right to vote in State elections, or indeed if any state
elections were to be allowed. It could turn the Federation into a confederation by abolishing the
States by not allowing any State elections to be held. My published books already have
canvassed these matters more extensively and therefore no need to set this out in hundreds of
pages for this court, as I refer to my various books published under the INSPECTOR-
RIKATI® label.
If this Court were to go along with the fact that “British nationals” are “foreigners” and excluded
from being a Member of Parliament, as Sue v Hill purports, albeit wrongly, then not a single
Australian could be entitled to be in the Parliament and not a single Member of Parliament for
this could be rightful hold a seat in the Parliament.
If the unconstitutional Racial Discrimination Act is deemed to be valid, then again it is a
“disability” against every Australian, British national or not, and then this disability

Page 218
automatically disqualifies every Australian from having “citizenship” and so “franchise” in both
State and Federal elections.
As was also placed before the Magistrates Court of Victoria the evidence in the ADDRESS TO
THE COURT that the Attorney-General in November 2002 advised me that the State of
Victoria has no legislation to provide State citizenship!
Mr. SYMON.-
As a citizen 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 be
prepared to trust it, the right of depriving me of citizenship.
And
and so on.
Therefore, regardless if the Commonwealth of Australia purports to call “nationality” citizenship

it still does not encompass a right to declare/define “CITIZENSHIP” that includes state
citizenship and State franchise.
Section 41 of the Constitution is very clear that the right to vote, and it is a right not an
obligation, is based upon being a State lector. If therefore, the state or States do not have any
State citizenship, then there neither can be a State franchise right, and so section 41 of the
Constitution does not come in play either.
It might be clear that the magistrate on 4-12-2002 upon submission of the Commonwealth
Director of Public Prosecutions held it better that these matters be determined by the High Court
of Australia before any further proceedings were to be dealt with, if at all.
As the onus of proving jurisdiction was upon the Commonwealth director of Public Prosecution
then it had the obligation to have a ruling by the High Court of Australia upon these matters.
The fact that it failed to pursue the matters before the High Court of Australia in my view
was tantamount to abandoning its prosecution against me.
Any notion that somehow I had to pursue the matters before the High Court of Australia is
absurd, as I am not the one who instituted proceedings in the Magistrates Court of Victoria!
When is a proclamation published?
&
When is a proclamation legally enforceable?
Page 96 & 97 of the ADDRESS TO THE COURT 16-11-2005

Mr. BARTON.-
Page 219
If we make it read that it shall take place on the date of the proclamation by the Governor-
General it will only take place when the Governor-General will take that action by
publishing a proclamation. Then it would follow the action of the Commonwealth.
Again; will take that action by publishing a proclamation
It shows; “Then it would follow the action of the Commonwealth”!
Application of provisions relating to Governor-General.
4. The provision of this Constitution relating to the Governor-General extend and apply to
the Governor-General for the time being or other the Chief Executive Officer or
Administrator of the Government of the Commonwealth, by whatever title he is
designated.

Mr. SYMON.-
We know that the Governor is the chief executive officer,
Mr. GLYNN.-The Federal Parliament can affect the prerogative, but only within the
limits prescribed by this Act.
And
Mr. SYMON.-Do you think acquiescence would make a law if the law passed by the
Commonwealth Parliament was ultra vires?
Mr. GORDON.-It would until the law was impugned. If the state did not impugn that
law it would remain in force. It is a law, and it could be allowed to be valid by the force of
acquiescence. And here is another point. The proposal which I am supporting, to some
extent keeps a remnant of parliamentary sovereignty over the strict interpretation of the
courts.
Mr. FRASER.-That is too abstruse for laymen altogether.
Mr. GORDON.-Well, I think not. I am sure that if the honorable member applies his
mind to the subject he will see it is not abstruse. If a statute of either the Federal or the
states Parliament be taken into court the court is bound to give an interpretation according
to the strict hyper-refinements of the law. It may be a good law passed by "the sovereign
will of the people," although that latter phrase is a common one which I do not care much
about. The court may say-"It is a good law, but as it technically infringes on the
Constitution we will have to wipe it out." As I have said, the proposal I support retains
some remnant of parliamentary sovereignty, leaving it to the will of Parliament on either
side to attack each other's laws.
Mr. BARTON.-How would they raise the question?

Page 220
Mr. GORDON.-Suppose it were a federal law, the Attorney-General of any of the states
could intervene in an actual suit, or place an abstract question before the High Court.
Mr. SYMON.-The state would not bother its head if the law only affected a few
individuals.
Mr. GORDON.-If the law only affected a few individuals, the state might not intervene,
but it is possible that a law referring to only a few individuals may involve the benefit of
the whole of the community.
[start page 1683]
attacked.
And
The question has been asked whether the Parliament cannot make laws affecting the
prerogative. The answer is-"Yes" and "No." The Parliament can make laws affecting
the prerogative in respect of any matter in which it has express power of legislation or
a power necessarily implied. It cannot make laws affecting the prerogative in matters
with respect to which it has no power to make laws.
Mr. FRASER.-Can it not get authority?
Mr. BARTON.-Not unless it gets the power in this Act.
Considering also the fact that the evidence placed before the magistrate was that there never was
any constitutional valid 2001 federal election as Gazette containing the proclamation was not
published in time, as computer records obtained under FREEDOM OF INFORMATION ACT
proved that the Gazettes’s were still at the Printers on 9 October 2001, even so the Writs were
issued on 8 October 2001, then clearly there were no vacancies on 8 October 2001 for writs to be
issued in regard of the House of Representatives.
Further, while the Commonwealth Director of Public Prosecutions somehow sought to rely upon
the Marshall J 7 November 2001 decision and also upon the Gummow J decision in the Ned
Kelly case, neither of those two decision considered that fact that Victorian Senate elections
legislation required that “not less than eleven days” was to be provided for closure of
nominations.
Therefore the 9 days plus a bit provided for in thew writs were clearly failure to comply with
legislative provisions and for this the Senate writs were invalid, as was set out in the ADDRESS
TO THE COURT provided for the 16 and 17 November 2005 proceedings and now subject to
this appeal for a DE NOVO hearing.
Therefore, the Commonwealth Director of Public Prosecutions will have the onus to prove to this
Court that the relevant Gazette was published prior to the issue of the writs. Failing to prove this
then this Court cannot for this either invoke any jurisdiction. As if the writs were invalid
(ULTRA VIRES) then any purported election held is of no legal force.

Page 221
More over, where the writs for the House of Representatives also failed to be “shall not less then
10 days” then for this those writs were also without legal force for this also, and no valid election
took place.
When I discovered on 20 October 2001 that there were irregularities with the writs issued, I then
forwarded emails to the Australian Electoral Commission, Mr John Howard and many other
Members of Parliament about this. The Australian electoral commission indicated in its 25
October 2001 response that the appropriate course to be followed was to seek matters to be heard
before the Federal Court. Just that at the 7 November 2001 hearing then Mr Peter Hanks QC
misled the Court that it has no legal jurisdiction, etc.
Marshall J then refusing to hear the matter upon its merits, and the High Court of Australia
refusing to hear an appeal, even so constitutionally there was a right of appeal to the High Court
of Australia for a refusal by a Federal Court to deal with a Section 75(v) application for
mandamus, prohibition, etc.
Bodney v Westralia Airports Corporation Pty Ltd [2000] FCA 1609 (13 November 2000).
The Governor-General might direct that land be acquired by compulsory process (s
15(1)). The next step was the publication of a notification in the Gazette declaring
"that the land has been acquired under HYPERLINK
"http://www.austlii.edu.au/au/legis/wa/consol_act/tola1893160/" this Act for the
public purpose therein expressed" (s 15(2)). Upon publication of the notification,
the land, by force of HYPERLINK
"http://www.austlii.edu.au/au/legis/wa/consol_act/tola1893160/" the Act , was
vested in the Commonwealth "freed and discharged from all trusts, obligations,
estates, interests, contracts, licences, charges, rates and easements" (s 16); and the
estate and interest of every person entitled to the land (including the title of the State
to any Crown land) was converted into a claim for compensation (s 17). After
publication of the notification, a copy was required to be served upon the owners of
the land "or such of them as can with reasonable diligence be ascertained" (s 18).
32 For present purposes, an important aspect of that scheme is that no notification to
owners was required before the publication in the Gazette; and the publication in
the Gazette vested the land in the Commonwealth and converted former estates or
interests in the land into claims for compensation. The scheme excludes the
possibility that a failure to notify owners under s 18 would prevent the acquisition
from becoming effective.
Where the Commonwealth acquired land by compulsory process, extinguishment
took place on the occurrence of the event which vested title in the Commonwealth:
that is, the publication of the notice in the Gazette.
TRANSPORT AND COMMUNICATIONS and THE COMMONWEALTH OF AUSTRALIA
No. WA G14 of 1993 FED No. 141 Legislation (1993) 114 ALR 50 (1993) 41 FCR 242 (1993)
30 ALD 849 (extract)
His Honour concluded that in the case before him the
publication of the instrument was essential to the valid exercise of the power
and that no distinction could be drawn between the publication of the notice
and the exercise of the power.
Page 222
At HYPERLINK "http://www.dofa.gov.au/infoaccess/informan/about_gazettes.html"
http://www.dofa.gov.au/infoaccess/informan/about_gazettes.html the following is provided
by Ausinfo – Commonwealth Gazettes of the Department of Finance and Administration;
Special Gazettes
Contains notices that would normally appear in any of the above Gazettes but which
are produced on demand when customers are unable to wait for the next Government
Notices Gazette to publish their notice.
Ben Ward & Ors v State of Western Australia & Ors [1998] 1478 FCA (24 November 1998).
Two special leases granted under the HYPERLINK
"http://www.austlii.edu.au/au/legis/wa/consol_act/la193348/" Land Act 1933
(WA) for grazing purposes were said to have been issued in respect of land in the
claim area. Neither lease is current. Grazing is not a purpose specified in
HYPERLINK
"http://www.austlii.edu.au/au/legis/wa/consol_act/la193348/s116.html" s 116 of
the HYPERLINK "http://www.austlii.edu.au/au/legis/wa/consol_act/la193348/"
Land Act 1933 (WA) and it must be assumed that it was a purpose approved by
the Governor by notice in the Government Gazette
(WA) in 1996.
That the Act Interpretation Act 1901 refer to;
16A References to the Governor-General
Where, in an Act, the Governor-General is referred to, the reference shall, unless
the contrary intention appears, be deemed to include:
(a) the person for the time being administering the
Government of the Commonwealth; or
(b) where the reference occurs in or in relation to a
provision conferring on the Governor-General a power or function
which the Governor-General or the person administering the
Government of the Commonwealth has for the time being assigned
to a person as his deputy, that last-mentioned person in his capacity
as deputy;
and shall, unless the contrary intention appears, be read as referring to the
Governor-General, or a person so deemed to be included in the reference, acting
with the advice of the Executive Council.
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
The provisions of this Constitution referring to the Governor-General in Council shall
be construed as referring to the Governor-General acting with the advice of the
Federal Executive Council.

Page 223
The Commonwealth of Australia Constitution Act as such must be read in accordance to the legal
provisions of the Section 17 of the Act Interpretations Act 1901, which under the heading “17
Constitutional and official definitions” refers to “Proclamation shall mean Proclamation by the
Governor-General published in the Gazette;” as such referred to in Section 12 and Section 32 of
the Commonwealth Constitution must mean that the writ or writs can’t be issued until after the
proclamation of the dissolution of either or both Houses of the Parliament has been published in
the Gazette.
17 Constitutional and official definitions [see Note 2]
In any Act, unless the contrary intention appears:
(a) Australia or the Commonwealth means the
Commonwealth of Australia and, when used in a geographical
sense, includes the Territory of Christmas Island and the Territory
of Cocos (Keeling) Islands, but does not include any other external
Territory;
(c) The Constitution shall mean the Constitution of the
Commonwealth;
(d) The Constitution Act shall mean The Commonwealth of
Australia Constitution Act;
(e) The Parliament shall mean the Parliament of the
Commonwealth;
(g) The Executive Council shall mean the Federal
Executive Council;
(j) Proclamation shall mean Proclamation by the
Governor-General published in the Gazette;
(m) Gazette means the Commonwealth of Australia Gazette, and
includes the Australian Government Gazette published during the
period commencing on 1 July 1973 and ending immediately before
the commencement of subsection 5(2) of the Acts Interpretation
Amendment Act 1976;
Publication being the act of publishing it then must be held that where a Gazette is not
published until a certain date, irrespective if printed, then the date of actual publication
must be held relevant as being the date of the Gazette. This, as the public and others can’t
be aware of what might be printed in a Gazette where the Government withholds the
publication of a Gazette. To allow for such tactics would mean that a government can
print its Gazette and deliberately withhold it from publication until a certain time frame
has been passed as to avoid scrutiny or any other action the government of the Day might
wish to avoid or limit. As such, not the printing but the actual publication of the Gazette
must be deemed to be the date of the Gazette. Meaning that the date of the actual
publication of the Proclamations were 17 October 2001 being the day of the publication
of the said Gazette. Meaning that the Publication of the dissolution of the House of
Representatives backdated to the 8th day of October 2001 well before the Proclamation
was published on the 17th day of October 2001 of the prorogue of the Parliament was
NULL AND VOID and so the issue of the writs for the House of Representatives and
that of the Senate of the Territories as they couldn’t be issued prior to the publication of
the dissolution of the House of Representatives.

Page 224
In this case the special Gazette dated 8 October 2001 wasn’t even published with the 10th
day of October Government Notice Gazette known as GN40 but it was strangely held
until GN41 being published on the 17th day of October 2001. Being it an error of staff or
not, it hardly can be accepted that the non publication for so long until 17 October 2001
could be accepted. The Government Printers might very well print a Gazette but change
its content prior to publication, such as deleting parts and/or adding parts but in any event
the Gazette has no meaning until it is actually published. Perhaps a comparison can be
made alike an Affidavit that isn’t an Affidavit until it is sworn and filed with the Court
before it has any legal effect. The mere producing of an DRAFT affidavit without it being
filed would deny it any legal status in court proceedings for litigation purposes as where it
hasn’t been filed and so neither could have been served the other party entitled to be
aware of the content of any Affidavit relied upon by an opposing party is entitled to
object to any material not part material of proceedings in the proper manner.
The very purpose of Gazetting matters is as to make it official and in Victoria the
supreme Court of Victoria actually found that the failure by the Victorian Government to
have the Gazette publish the new Act (Albert Park racing) then it was not legally
enforceable against the protesters. Likewise where the Proclamation wasn’t published
until 17 October 2001 no action could be taken prior to publication as if the House had
been dissolved.
That the Act Interpretation Act 1901 clearly binds the Crown, by this the Governor-General also.
2 Application of Act
(1) Except so far as the contrary intention appears, this Act applies to all Acts,
including this Act.
(2) This Act shall bind the Crown.
That the Act Interpretation Act 1901 also states;
The date appearing on the copy of an Act printed by the
Government Printer, and purporting to be the date on which the Governor-General
assented thereto, or made known the King’s assent, shall be evidence that such
date was the date on which the Governor-General so assented or made known the
King’s assent, and shall be judicially noticed.
There is clear evidence rebutting that the said date of 8 October 2001 the document was not
published, and was an attachment for publication on the 17th day of October 2001, then Section 6
does not appear to apply as it isn’t dealing with the “publishing” of the Gazette but with a date
of an Act.
WESTERN AUSTRALIA v_ THE COMMONWEALTH; NEW SOUTH WALES v_ THE
COMMONWEALTH ; QUEENSLAND v_ THE COMMONWEALTH (1975) 134 CLR 201.
18. No attack is made in these submissions on the validity or effectiveness of the
proclamation of the double dissolution. It is submitted, and in my opinion correctly
submitted, in this connexion that the power simultaneously to dissolve both Houses of the
Parliament and the power subsequently to convene a joint sitting are statutory and not
prerogative powers. The validity of the proclamation convening the joint sitting is attacked
but the submissions to which I have so far referred do not depend on the suggested
invalidity of the proclamation. (at p219)
What is clear is that one can dispute the validity of the proclamation as well as the validity of
writs.

Page 225
and his Excellency has no power to increase or diminish those powers or duties.
VICTORIA v. THE COMMONWEALTH AND CONNOR; NEW SOUTH WALES v. THE
COMMONWEALTH; QUEENSLAND v. THE COMMONWEALTH; WESTERN
AUSTRALIA v. THE COMMONWEALTH (1975) 134 CLR 81
Following the averment
the proclamation continues: "Now therefore, I (The Governor-General in office)
does by this my Proclamation dissolve the House of Representatives”? (At p129)
If the Senate were in fact dissolved, and if thereafter
writs for an election were issued, the election was held and a new Parliament
was summoned to meet, I can see no difficulty in holding that the new
Parliament would have validly assembled. This of course is not to suggest
that this Court could not intervene to uphold the Constitution and prevent an
invalid proclamation for the dissolution of the Senate from being given
effect. However, these questions need not be further discussed.
THE QUEEN v. PEARSON; Ex parte SIPKA (1983) 152 CLR 254 Parliamentary Elections
(Cth)
4. Usually when a federal election is impending many of the hundreds of
thousands of persons who have become qualified by naturalization or attaining
the age of eighteen years or otherwise but are not enrolled, become enrolled
before the writs are issued. This is because, apart from the obligation to
enrol (see s. 42, Commonwealth Electoral Act) there is usually some reasonable
warning that the election is imminent. (at p266)
5. In accordance with constitutional practice a dissolution of the House of
Representatives or of both Houses occurs only on the advice to the
Governor-General of the Prime Minister. It is well known that during the
latter part of 1982 and early 1983 the Prime Minister, in repeated
announcements which were widely reported, stated that there would not be an
early election and towards the end of that period, that he was exploring the
possibility of an election in 1984. (See, e.g., The Australian, 3 February
1983.) However without any prior public notice the Prime Minister announced in
6. Thus, although s. 32 of the Constitution allows for issue within ten days,
the writs were issued on the same day as the proclamation of the dissolution.
Although that was done in 1914, the practice since then has been to allow a
space of some days between the proclamation of a double dissolution and the
issue of writs for the elections. In 1951 the writs were issued nine days
after the proclamation; in 1974 the writs were issued nine days after the
proclamation; in 1975 the writs for four States were issued six days after the
Page 226
proclamation and the writs for the other two States were issued ten days after
the proclamation. (See Commonwealth Gazettes of 19 March 1951, 4 April 1974
and 11 November 1975.) (at p266)
What no one ever seemed to be aware of is that the Framers of the Constitution indicated that no
one could act upon a proclamation unless it was first published in the Gazette. It is not the day
a proclamation is signed that determines the ability to act upon the proclamation but when it is
actually available to the general public by being published. So to say, available over the counter.
Again;
However without any prior public notice the Prime Minister announced in
As such, while the Governor-General had signed on 3 February 1983 the proclamation, it did not
come into effect until it was published in the Gazette on 4 February 1983.
Bodney v Westralia Airports Corporation Pty Ltd [2000] FCA 1609 (13 November
2000).
Mayors and councils were elected (Pt IV). Part VIII conferred on a council power to
make by-laws upon a wide range of matters; by-laws came into effect when
confirmed by the Governor and published in the Gazette (s 186).
TRANSPORT AND COMMUNICATIONS and THE COMMONWEALTH OF
AUSTRALIA No. WA G14 of 1993 FED No. 141 Legislation (1993) 114 ALR 50 (1993)
41 FCR 242 (1993) 30 ALD 849 (extract)
His Honour concluded that in the case before
him the publication of the instrument was
essential to the valid exercise of the power and
that no distinction could be drawn between the
publication of the notice and the exercise of the
power.
The following clearly refers to “the date of the Gazette wherein such notification is first published”
being the relevant date and not the date of the Gazette. Albeit, in normal circumstances one
might assume that the Gazette shall bear the date of the publication, it has been found that at
least with S421 the Gazette was never published as such.
New South Wales Consolidated Acts
OATHS ACT 1900 - SECT 16
Page 227
16 To be notified in Gazette
From and after the expiration of twenty-one days next following the date of
the Gazette wherein such notification is first published the provisions of
this Part shall extend and apply to every case, office, or department
specified in such notification.
The evidence obtained from the Commonwealth Gazette clearly dispute the date of S421 of
8 October 2001 being correct as it wasn’t published until 22 October 2001 in Tasmania and
so S421 ought to have been dated 22 October 2001 be held to be so for Tasmania.
Victorian Consolidated Legislation

EVIDENCE ACT 1958 - SECT 62
Proof of Government Gazette
62. Proof of HYPERLINK "http://www.austlii.edu.au/cgi-
bin/disp.pl/au/legis/vic/del/consol_act/ea195880/s59.html" \l
"government_gazette" Government Gazette
(1) The mere production of a paper purporting to be the HYPERLINK
"http://www.austlii.edu.au/cgi-
"government_gazette" Government Gazette of
any HYPERLINK "http://www.austlii.edu.au/cgi-
bin/disp.pl/au/legis/vic/del/consol_act/ea195880/s59.html" \l "australasian_state"
Australasian State shall be prima facie evidence that such paper is such
HYPERLINK "http://www.austlii.edu.au/cgi-
"government_gazette" Government Gazette and that it was published in such
State on the day on which
the same bears date.
(2) The mere production of a paper purporting to be printed by the
HYPERLINK "http://www.austlii.edu.au/cgi-
"government_printer" government printer of any HYPERLINK
"http://www.austlii.edu.au/cgi-
bin/disp.pl/au/legis/vic/del/consol_act/ea195880/s59.html" \l "australasian_state"
Australasian State or by the authority of the
Government of any such State shall be prima facie evidence that such paper was
printed by such HYPERLINK "http://www.austlii.edu.au/cgi-
"government_printer" government printer or by such authority.
It does not include Commonwealth, and in any event no gazette was filed by the prosecutor to
prove publication printed by the Government Printer, as in fact counsel for he Commonwealth
DPP somehow having filed a Special Gazette s421 then argued there was no need for it, after it
was exposed by the Defendant that it did not have “Government printers” on it!

Page 228
That Special Gazette S421 8 October publication doesn’t exist as such, as it was published on 22
October 2001 in Tasmania.
ACT Numbered Acts and Ordinances
EVIDENCE (LAWS AND INSTRUMENTS) ORDINANCE 1989 No. 30 of 1989 -
SECT 8
Proof of Gazette
8. A document that purports to be a copy of the Gazette, or an extract from a
copy of the Gazette, and to have been printed by the Government Printer shall,
in the absence of evidence to the contrary, be taken to be a copy of the
Gazette, or an extract from a copy of the Gazette, as the case requires.
ACT Consolidated Legislation

EVIDENCE ACT 1971 - SECT 10B.
Proof of Gazette
A document that purports to be a copy of the Gazette, or an extract from a
copy of the Gazette, and to have been printed by the government printer shall,
in the absence of evidence to the contrary, be taken to be a copy of the
Gazette, or an extract from a copy of the Gazette, as the case requires.
The following Authority indicates the effect of publication of the Gazette where the notice must be
actually published at least one month before the grant.
Ben Ward & Ors v State of Western Australia & Ors [1998] 1478 FCA (24 November
1998).
Two special leases granted under the HYPERLINK
"http://www.austlii.edu.au/au/legis/wa/consol_act/la193348/" Land Act 1933
(WA) for grazing purposes were said to have been issued in respect of land in the
claim area. Neither lease is current. Grazing is not a purpose specified in
HYPERLINK
"http://www.austlii.edu.au/au/legis/wa/consol_act/la193348/s116.html" s 116 of
the HYPERLINK "http://www.austlii.edu.au/au/legis/wa/consol_act/la193348/"
Land Act 1933 (WA) and it must be assumed that it was a purpose approved by
the Governor by notice in the Government Gazette
(WA) in 1996.
That in the event it was argued that Section 48(1) were to apply to the proclamation then “(iv) in any
other case—the date of notification” the date of notification being the date of the actual
publication of the Gazette would be deemed to be the date of notification. This, as no one could
be deemed to be duly notified unless the Gazette was actually published.
The power to declare if election was valid or not

Page 229
The Magistrate on 17 November 2005 ruled that he had no power to decide if Mr. John Howard
was validly elected Prime Minister in 2001, however I view that when the Commonwealth
Director of Public Prosecutions placed the case before the Court then by this the Court has the
power to determine the validity of the purported election. After all, if there was no valid election
being held then neither could any provisions of the Commonwealth Electoral Act 1918 being
invoked to pursue prosecutions in that regard.
The validity of the elections held relies upon the validity of the election process and/or the
validity of the process leading up to being able to hold a valid election.
The validity of an election and the right of elected Senators can be and has been disputed without
involvement of the Court of Disputed Returns, for example, in regard of the right of Senators for
Territories to vote in the Senate.
This is a criminal case and as such the onus is upon the Commonwealth Director of Public
Prosecutions to prove jurisdiction and to disprove any objections I placed to the Court as to the
validity of the purported Federal election.
As such the refusal by the magistrate to determine these matters of “citizenship”, the validity of
the purported election, etc, means that the Court never could have invoked jurisdiction to hear
and determine the charges, hence, any conviction was without legal force for this also.
There can be absolutely no doubt that I pursued various ways to seek election to be held in a
valid and proper manner, and having legal proceedings on foot at the time the purported federal
elections were held then I was well entitled in that regard refusing to vote in such vexatious
election.
This, besides the fact that as a “constitutionalist” I am well aware that the Framers of the
Constitution refused to provide for compulsory registration and voting when this was submitted
as an amendment by Mr Gordon in 1897.
And, the British Parliament when passing the Bill, now known as the Commonwealth of
Australia Constitution Act 1900 (UK), did so having been kept informed by Hansard records
which where ongoing provided by the Convention, through the Governor of N.S.W., to the
Homes Office.
Because I was also a candidate in this purported Federal election, albeit did not discover the
invalidity of the publication of the Proclamation and the invalidity of the writs until after closure
of nominations, this in itself cannot be taken to then somehow validate an unconstitutional
election. Further more, there is no authority on record, to my knowledge, where a Candidate in a
election (purported election) refused to vote.
In my view, it would be absurd for a candidate being forced to vote for opponents. After all, the
very reason I stood as a candidate was that I did not view others to be suitable candidates. As
such, any attempt to force me to vote for opponents would be unconstitutional and ill legal, as I
where the framers of the Constitution refused to make enrolment and voting compulsory then
this is a bar to the Commonwealth of Australia to legislate otherwise.
Likewise, it would be a denial of my PERSONAL LIBERTY EMBEDDED in the Constitution
to be forced to vote contrary to my rights not to do so.
Page 230
1766] the laws regarding property and personal liberty is still left with the states.
Dr. COCKBURN: I consider that the whole question was summed up at the conference
at Melbourne last year by Sir John Hall, when he said that democracy, which is
government by the people, demands that the government should be within sight and
hearing of the people. Surely the hon. gentleman will not attempt-surely the English
language was never meant to be so twisted as to say that centralisation can in any way be
compatible with democracy or with the power of the people!
Mr. DEAKIN: Gambetta!
Dr. COCKBURN: Local freedom and government by the people are inseparable.
Mr. DEAKIN: Hear, hear!
Dr. COCKBURN: Surely the hon. member does not mean for a moment to assert to the
contrary! Now, a very ingenious argument-an argument which I foresaw at an early stage
of the debate and partly anticipated then-was raised by the hon. member in regard to the
War of Secession. I was speaking of the old parties-the party which was headed by
centralisers such as Hamilton, and the party, headed by Jefferson, for local government or
state rights. After a time, as I mentioned in a former debate, the, party questions got
confused, and by nothing so much as the War of Secession, because then, very strangely,
that party which had always made for liberty and state rights claimed, by a curious irony of
fate, as a part of their right under their claim of state rights to establish and maintain
slavery. The party of liberty became the party of slavery, and the party for centralisation
became, by most curious historical irony, the party in favour of freedom. It was that
confusion of thought that entirely abolished the old lines of parties in America, and as a
matter of fact, the parties in America no longer exist. They were destroyed; all the reason
of their existence was destroyed by the War of Secession. Liberty and slavery got so mixed
up that no one knew where they were. The centralisers were for liberty, the people for local
freedom were for slavery, and the result has been, as has been well stated by Mr. Goldwin
Smith, that the issues are so confused that the two casks representing the old parties, the
federalists and the democrats, no longer retain the odour of the liquor with which [start
page 713] they were once filled. So that any argument taken from that source is very
ingenious, but is entirely opposed to fact. The whole issue has been traversed and
destroyed by that miserable war in which for once the states rights men happened to be
wrong; and, although they were the exponents of freedom from the very commencement of
the Constitution, they set themselves against the very essence of freedom and personal
liberty. I think the hon. gentleman will not attempt to press that.
Mr. GORDON: I move:
To strike out the words: "or it person qualified to become such elector."
I do this for three reasons

Page 231
Mr. REID: Give us one.
Mr. GORDON: One is that everyone born in the Commonwealth is qualified to become
an elector.
HON. MEMBERS: Do not make a speech
Mr. GORDON: My chief point is that I think that registration should be made
compulsory. I would not give a man who has lived here for three years without
registration a vote.
Mr. PEACOCK: His name might have dropped off accidentally.
Sir GEORGE TURNER: He may have been away for a trip.
Mr. REID: Withdraw. (Laughter.)
Mr. GORDON: I will ask leave to withdraw the amendment.
Amendment withdrawn.
Mr. HOLDER: I move:
To add to sub-section I. the words "or must have been born within the limits of the
Commonwealth."
Mr. REID: Withdraw. (Laughter.)
Mr. HOLDER: I am not going to make that the sole qualification. It would be sufficient
in the absence of three years' residence.
HON. MEMBERS: Withdraw.
Question-That the words proposed to be added be added-put. Committee divided.
Ayes, 6; Noes, 21. Majority, 15.
As I understand it postal voting already existed at the time but this was so that Farmers who
could not attend to polling booths could still vote if they desire to do so, however, the Framers of
the Constitution also indicated that many electors would not even vote in referendums.
Therefore, not only did the Framers anticipate that many electors did not desire to vote but they
also opposed compulsory enrolment (registration) and voting.
In all authorities I am aware of about the voting issue I am not aware a single judge ever referred
to this fact that compulsory registration and voting was rejected. Yet, it is clearly EMBEDDED
in the Constitution!
As the Framers of the Constitution also made clear, that once there is an objection then the onus
is upon the Commonwealth of Australia to prove the constitutional validity of the legislation
objected against as it was ULTRA VIRES once there was an objection made. Again, this has

Page 232
been extensively canvassed in my published books on this issue and I rely upon the content of
those books also.
Section 245 of the Commonwealth Electoral Act 1918 therefore is unconstitutional and is
ULTRA VIRES, without legal force, and as such the Court cannot invoke any jurisdiction in
that regard also. As yet, the Commonwealth Director of Public Prosecutions has not taken any
steps to prove that section 245 is constitutionally valid.
It is not for the Court to assume the validity of the enactment merely because it is enacted by the
Commonwealth of Australia, as this would be bias.
In 1994, I contested the validity of the application of the (then) Cross Vesting Act, but it was not
until 1999 that the High Court of Australia in HCA 27 of 1999 in the Wakim case held that the
Cross Vesting Act was unconstitutional!
Surely it should be avoided that an unconstitutional legislation remains on foot for many years?
THE CONSTITUTIONAL POSITION OF THE GOVERNOR-GENERAL
Another issue is that the Framers of the Constitution made clear that no action could be taken
upon a proclamation unless it was published in the Gazette. The Commonwealth Director of
Public Prosecutions sought to rely upon the Gummow J decision in the Ned Kelly case that the
Commonwealth of Australia cannot interfere with the prerogative powers of the Governor-
General. This is obviously an incorrect claim, as the Hansard records of the Constitution
convention debates themselves reveal otherwise.
Therefore, in addition of any of any constitutional provisions the parliament may legislate that
certain matter may require a proclamation. It can not however interfere with constitutional
requirements such as Section 32 of the Constitution.
32 Writs for general election

The Governor-General in Council may cause writs to be issued for
general elections of members of the House of Representatives.
After the first general election, the writs shall be issued within ten
days from the expiry of a House of Representatives or from the
proclamation of a dissolution thereof.
Again;
the writs shall be issued within ten
days from the expiry of a House of Representatives or from the
proclamation of a dissolution thereof.
Page 233
Page 96 & 97 of the ADDRESS TO THE COURT 16-11-2005

Mr. BARTON.-
Section 5 prerogative powers therefore relates to the exercise by the Governor-General to

prorogue the parliament and to dissolve the House of Representatives, but as legislative powers
exist by the parliament to make laws regarding elections, and Section 38 stipulates that with a
“general election” the writs cannot be issued until after the expiry of the House of
Representatives or after the prorogue of the Parliament, then it is clearly well within the powers
of the Parliament to legislate that such writs shall not be issued until they have been published, as
was clearly provided for within the Act Interpretation Act 1901. This, as the issue of the writs,
and the terms of the writs, are legislative powers provided for within the Constitution.
Section 5 is not a stand alone section but clearly by Section 2 subject to the Constitution, and
this means any legislation enacted by the Parliament within its constitutional powers.
It is clear that the Governor-General cannot issue writs in regard of Senate elections for the
States, this as this falls within the scope of constitutional powers of Section 9 and 10 of the
Constitution. This underlines that Section 5 is not an all powerful Section on its own, but must
be considered as to the over all powers provided for within the Constitution!
Therefore, it must be clear that if the Governor-General “on advise” (to counsel the King)
prorogue the Parliament and dissolve the House of Representatives then this is clearly not a
prerogative power exercised as Sir John Kerr did in 1975, when sacking the Withlam
government, which was then without such “advise”! it cannot be held that a Governor-General is
subject to the “advise” of the Federal executive as to calling a “general election” and then
somehow not being subjected to legislative provisions enacted within constitutional powers!

Page 234
Section 5 therefore can be exercised in two manners. The Governor-General may prorogue the
parliament, and may in like manner dissolve the House of Representatives, “by Proclamation or
otherwise”.
Here is where the real issue lies;
by Proclamation or otherwise
it is clear that in this case, the Governor-General “on advise” of the Prime Minister then
prorogued the Parliament and dissolved the House of Representatives and did not “otherwise” by
doing it on his own account without the advise of the Executive to simply Prorogue the
parliament and dissolve the House of Representatives, being it because, for example, the entire
cabinet had been killed in a massive attack or other accident and as such there was no executive
to give “advise” for seeking a prorogue of the Parliament and the dissolution of the House of
Representatives.
Therefore, once the Governor-General was “acting” upon the “advise” of the Federal Executive
(Prime Minister in this case) to issue a Proclamation to prorogue the Parliament and to dissolve
the House of Representatives then the Prerogative powers exercised clearly was subject to the
legislative powers provided for by the Constitution to the parliament and not that the governor-
General, so to say, can go out on a limb and make out whatever kind of writs he desires, such as
calling for the elections to be held immediately, as clearly how the elections are conducted was a
parliament legislative powers. The issue of the writs and not the content of the writs as to the
modus operandi of the elections procedure was what fell within prerogative powers of the
governor-General other then the writs of the States which fell within the prerogative powers of
the State Governors subject to the legislative powers of the State parliaments.
Therefore, the prerogative powers of the Governor-General and/or the Governors are limited in
the issue of the writs subject to the legislative powers of the respective parliaments.
Because the proclamation was not at all published on 8 October 2001 as computer records
obtained under the FREEDOM OF INFORMATION ACT has proven, then the writs in regard
of the House of Representatives were invalid for this also and of no legal force.
If the purported federal election in 2001 was without legal force, then not as single Member of
Parliament then could have been elected in regard of those purported elections held on 10
November 2001. meaning also that there was neither a Prime Minister to advise the Governor-
General for the 2004 federal election. Hence, no constitutional valid election was then held
either for this and other reasons set out above.
The problem the Commonwealth Director of Public Prosecutions is facing is that since 4-12-
2002 I clearly opposed the validity of the purported 2001 election and as such it remains ULTRA
VIRES where the Commonwealth Director of Public Prosecutions failed to obtain a judgment
otherwise proving it was constitutionally valid. The refusal by the Magistrate to determine the
validity on the basis that there was no judicial power clearly cannot be accepted.
This is a criminal case instituted by the
Commonwealth Director of Public Prosecutions and as
such by this has implied given the authority to the
Courts to deal with the validity of the purported
elections.
Page 235
With the 2004 purported Federal election the added issue is also that no one in his right mind can
demand or otherwise force me to vote for what I consider a war criminal, being Mr John
Howard, likewise so for any of his political allies.
The position of “Prime Minister” does not exist in the written Constitution. However, as a
“constitutionalist” I am well aware that the framers of the Constitution intended there be a Prime
Minister, albeit with limited powers. As they made clear the power to declare War or Peace rest
with the Monarch and so by the Governor-General and this was only to be acted upon by a
Declaration of War if it involved going to war. Hence, the armed invasion into Afghanistan and
Iraq was unconstitutional as no DECLARATION OF WAR was ever publicised in the Gazette.
As a matter of fact, I understand it was TREACHERY within section 24AA of the Crimes Act
(Cth) for the Prime minister and others to authorise a war against “friendly” nations, as they
were in view they had not actually attacked us and neither had the governor-General issued a
Declaration of War to placed them to be enemies.
Mr. BARTON: Which goes to show that the exercise of the prerogative, al. though there
is nothing in statute law to say it must be exercised on the advice of a minister, must still
take place on the advice of a minister, and that that minister is responsible for its exercise.
This is what the author says to some of these matters:
The change, it will probably be conceded, met with the approval, not only of the
Commons, but of the electors. But it will equally be conceded that, bad the alteration
required statutory authority, the system of purchase might have continued in force up to the
present day.
****
The existence of the prerogative enabled the Ministry in this particular instance to give
immediate effect to the wishes of the electors, and this is the result which, under the
circumstances of modern politics, the survival of the prerogative will in every instance
produce. The prerogatives of the Crown have become the privileges of the people.
Mr. REID: Hear, hear.
And anyone who wants to see how widely these privileges may conceivably be stretched
as the House of Commons becomes more and more the direct representative of the true
Sovereign,
being a Sovereign Chamber itself, mind:
Should weigh well the words in which Bagehot describes the powers which can still
legally be exercised by the Crown without consulting Parliament; and remember that these
powers can now be exercised by a Cabinet who are really servants, not of the Crown, but of
the representative Chamber, which in its turn obeys the behests of the electors.

Page 236
Then there is a passage from Bagehot's book on the English Constitution, pages 35-6 of
the introduction, which I might as well read also, because it will tend to shorten argument
on my part:
I said in this book that it would very much surprise people if they were only told how
many things the Queen could do without consulting Parliament, and it certainly has so
proved, for when the Queen abolished purchase in the army by an act of prerogative (after
the Lords had rejected the Bill for doing so) there was a great and general astonishment.
Astonishment at the fact that a Minister could exercise the powers of the Crown by
merely advising the Queen to issue her royal warrant. He goes on:
But this is nothing to what the Queen can by law do without consulting Parliament. Not to
mention other things, she could disband the army (by law she cannot engage more than a
certain number of men, but she is not obliged to engage any men); she could dismiss all the
officers, from the general commanding-in-chief downwards; she could dismiss all the
sailors too; she could send off all our ships of war and all our naval stores; she could make
a peace by the sacrifice of Cornwall, and begin a war for the conquest of Brittany. She
could make every citizen in the United Kingdom, male or female, a peer; she could make
every parish in the United Kingdom a "university;" she could dismiss most of the civil
servants; she could pardon all offenders. In a word, the Queen could by prerogative upset
all the action of civil government within the government, could disgrace the nation by a
bad peace or war, and could, by disbanding our forces, whether land or sea, leave us
defenceless against foreign nations.
All that Dicey has to add to that is this:
If Government by Parliament is ever transtransformed into Government by the House of

Commons, the transformation will, it may be conjectured, be effected by use of the
prerogatives of the Crown.
All that passage goes to show this, that every prerogative which the Queen retains is
retained in trust for the people, and it does not matter whether she is told in the Statute that
she is to exercise that prerogative by the advice of the Executive Council or not, if she is
given the power in the Statute she can only exercise that power of prerogative by and
on the advice of the Ministers. In other words, if you have a Statute embodying a
Constitution, or if you have a Constitution in [start page 913] which the moving power is
responsible government, in one case or the other, whether acting as a prerogative or in
Executive, there must be a Minister responsible for the action to the people. And that is the
principle embodied in this Bill as drawn. We shall be told if we alter the drafting of it in
this particular, if we say we are not aware of the distinction between the Acts which are
assumed to be prerogative and which cannot be received without Executive advice, if we
say that we do not know the distinction between these, we shall be told how the distinction
would be made every time. The words:
With the advice of the Federal Council
would be struck out and the words:
The Queen

Page 237
or
The Governor-General
would be left. There will be this little further result: We shall be told that we did not know
how to draft an Act of Parliament because we did not have sufficient constitutional
knowledge. It is all very well for my hon. friend to propose an amendment, but if the Bill is
accepted as drawn he can take this conclusion: that all executive powers must be in trust
for the people, because every Constitution has been workable only by responsible
government. As there is at the end of clause 61 provision which makes what my hon. friend
desires safeguarded there is no more contest needed about the matter. We have provided in
clause 61 that officers shall be members of the Federal Executive Council and shall be the
Queen's Ministers of the State for the Commonwealth; that after the first general election
no Minister of State shall hold office for a longer period than three calendar months, unless
he shall be or become a member of one of the Houses of Parliament; and that Ministers of
State shall be in the Parliament, and that is the hold by which Parliament, if there were no
other hold, would make them responsible to the people. This Act, as it was, would have
made the Ministers responsible to the people, and have given us cabinet government
responsible to the people. I do not think there is need for further discussion. We can take
the clause as drawn.
Again;
she can only exercise that power of prerogative by and on the advice of the
Ministers.
It clearly shows that Gummow J erred in the Ned Kelly case that there is no powers to legislate
in regard of the prerogative, where in fact the prerogative is to be exercised with the advise of the
ministers concerned, albeit, the Monarch is not bound to accept that advise and may act contrary
to the advise obtained.
Mr. CARRUTHERS:
Mr. Barton first of all recites Dicey to show what occurs under the unwritten
Constitution of England. But here we are framing a written Constitution. When once
that Constitution is framed we cannot get behind it.
And
Mr. CARRUTHERS:
This is a Constitution which the unlettered people of the community ought to be able
to understand.
Essentially what Mr Carruthers was making clear is that one cannot go behind the written
Constitution as to seek to imply some powers that are not provided for in the written
Constitution.
One can use as aid the unwritten constitution, as recorded in the Hansard of the Constitution
Convention Debates as to the intentions of the framers, to explain the written Constitution, but
one cannot assume some power, such as INDEPENDENCE where none existed in the first place.
Again;
Page 238
Mr. CARRUTHERS:
This is a Constitution which the unlettered people of the community ought to be able
to understand.
Therefore, where the Constitution provided for the line of successors of the British Monarchy
then whatever the High Court of Australia seeks to make out of in Sue v Hill it cannot for one of
iota affect how constitutional provisions apply as there was no constitutional powers for the
Commonwealth of Australia to become INDEPENDENT.
It was my understanding that I would become a naturalized British national and was entitled
upon this in view that the British Parliament had provided for this in subsection 51(xix)!
Likewise, it is my understanding that a Prime Minister has no prerogative powers to declare war
or to authorise the invasion of another nation as only the Minister of Defence can authorise this
upon having had a DECLARATION OF WAR published by the Governor-General in the
gazette or in the alternative if the Commonwealth of Australia was under direct attack by an
enemy, which in itself would be an act of war.
No one therefore can demand that I vote in some purported election and by this warmongering
politicians may claim that they have had support for their conduct, even so people may have
voted out of fear of the tyranny being forced to do so rather then that they desired to do so.
I have a right to drive a motor vehicle including a truck or bus, but no one could force me to
drive a motor vehicle merely because I happened to be licensed to do so. Likewise, no one can
force me to exercise a right, where I view no one is worthy my vote.
HANSARD 8-2-1898 Constitution Convention Debates
Dr. COCKBURN.-It was no part of the original United States Constitution, and it never
has legally become a part of that Constitution; it was simply forced on a recalcitrant people
as a punishment for the part they took in the Civil War. We are not going to have a civil
war here over a racial question.
Mr. ISAACS.-That was one mode of amending the Constitution.
Dr. COCKBURN.-By martial law?
Mr. ISAACS.-Yes.
Dr. COCKBURN.-We do not want to imitate that example. We do not want a clause in
our Constitution which could only be carried in America by force [start page 686] of
arms. We cannot imagine a condition of things in which we would wish to make such an
amendment of our Constitution. I do not believe we shall ever have such a condition of
things here as will necessitate such a clause in the Constitution. As it formed no part of the
original Constitution of America, as it was only introduced by force of arms and not
according to the legal limits of the Constitution, I do not think we should pay it the
compliment of imitating it here.
Mr. ISAACS.-The honorable member can vote for the present amendment to strike out
certain words.

Page 239
Dr. COCKBURN.-I am going to vote for an amendment to strike out words whenever I
get the opportunity.
Mr. WISE (New South Wales).-I would like to make a suggestion in order to facilitate
business. It is that we should temporarily pass the amendment suggested by my learned
friend (Mr. O'Connor), which I understand has the approval of the leader of the
Convention, if the latter will give an assurance that the matter will be thoroughly looked
into by the Drafting Committee.
Mr. BARTON.-Undoubtedly.
Mr. WISE.-It seems to me to be a matter of very great importance. It has not received
the attention it deserves, and it is not quite possible for us in committee to go into the
whole matter fully.
My. KINGSTON.-We may temporarily strike out the clause with the view to the insertion
of a new one.
Mr. WISE.-I do not advocate that course, because to my mind the retention of the clause
is of very great importance. I look upon the clause as necessary to prevent the state
Parliaments from being used as instruments of nullification. Some assertion of that
principle is desirable in the Constitution, though the precise words of it are a matter of
doubt and a matter of drafting. I would suggest that we should pass the amendment of Mr.
O'Connor on the committee undertaking to bring it up again for further consideration if
they think fit on the recommittal of the Bill.
Mr. ISAACS (Victoria).-I hope we will not do that. I think it is far more than a question
of drafting. I think, whatever course we take, we ought to try to have the matter explained
as much as possible at the present moment. If we pass the words which my learned friend
(Mr. O'Connor) has suggested, we shall be raising up adversaries of the Constitution on all
hands. The phrase-"the equal protection of the laws" looks very well, but what does it
mean? It was part and parcel of the 14th amendment of the American Constitution; it was
introduced on account of the negro difficulty. It is not something separate from the other
portion, and of this Dr. Burgess says, at page 217 of the first volume of his work:-
The phrase "equal protection of the laws" has been defined by the court to mean
exemption from legal discrimination on account of race or colour. This provision would
probably, therefore, not be held to cover discriminations in legal standing made for other
reasons; as, for example, on account of age or sex, or mental, or even property
qualifications. The court distinctly affirms that the history of the provision shows it to have
been made to meet only the unnatural discriminations springing from race and colour. If a
discrimination should arise from any previous condition of servitude, I think the court
would regard this as falling under the inhibition. The language of the provision implies this
certainly, if it does not exactly express it.
And the case itself, which was decided in 1879, shows perfectly clearly that it has no
application to our Australian circumstances. The head-note is-
1. The 14th amendment of the Constitution of the United States, considered and held to be
one of a series of constitutional provisions having a common purpose, namely, to secure to
a recently emancipated race, which had been held in slavery through many generations, all
Page 240
the civil rights that the superior race enjoy, and to give to it the protection of the general
government, in the enjoyment of such rights, whenever they should be denied by the states.
Whether the amendment had other, and if so what, purposes, not decided.
[start page 687]
2. The amendment not only gave citizenship, and the privileges of citizenship, to persons
of colour, but denied to any state the power to withhold from them the equal protection of
the laws, and invested Congress with power, by appropriate legislation, to enforce its
provisions.
3. The amendment, although prohibitory in terms, confers by necessary implication a

positive immunity, or right, most valuable to persons of the coloured race-the right to
exemption from unfriendly legislation against them distinctively as coloured-exemption
from discriminations, imposed by public authority, which imply legal inferiority in civil
society, lessen the security of their rights, and are steps towards reducing them to the
condition of a subject race.
Mr. HIGGINS.-It protects Chinamen too, I suppose, as well as negroes?
Mr. ISAACS.-It would protect Chinamen in the same way. As I said before, it
prevents discriminations on account of race or colour, whether those discriminations
be by Parliament or by administration. And in the case I referred to, Yick Wo v.
Hopkins, it was held by the Supreme Court that the ordinance of the San Francisco
Legislature was void, and they went on to say further, even if a legislative provision is fair
and apparently equal on the face of it, if it is so administered as to introduce this
discrimination, it will be declared void.
Mr. HIGGINS.-The Act itself.
Mr. ISAACS.-Yes; if it admits of that infringement, and if it is so interpreted by the

Supreme Court of the state as to mean that such a discrimination may be introduced,
though not necessarily, it will be held to be void. That will be found on page 220 of Baker's
Annotated Notes on the Constitution of the United States. If that is so, to put it in plain
language, our factory legislation must be void. I put that one simple statement before
honorable members, and I would ask them how they can expect to get for this Constitution
the support of the workers of this colony or of any other colony, if they are told that all our
factory legislation is to be null and void, and that no such legislation is to be possible in the
future?
Mr. KINGSTON.-That is the special clause relating to Chinese.
Mr. ISAACS.-Yes.
Mr. GLYNN.-Cannot there be special legislation on the subject under clause 53?
Mr. ISAACS.-I forget what was done with that clause.
Mr. OCONNOR.-Some portion of it now appears under clause 52.

Page 241
Mr. ISAACS.-If it is so, the question of whether we are going to prevent factory
legislation of the kind I referred to will demand very serious consideration. Clause 52, by
the transposition that has been made, will afford an opportunity for discriminating
legislation if the Federal Parliament choose to take advantage of it.
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-
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
Page 242
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.
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-

Page 243
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.
HYPERLINK "http://ablemedia.com/ctcweb/showcase/whitakerwords.html" \t "_blank"

http://ablemedia.com/ctcweb/showcase/whitakerwords.html
Magna Carta Charter;
"Nullus liber homo capitur vel imprisonetur, aut disseisiatur, aut utlagetur, aut
exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum
mittemus, nisi per legale judicium parium suorum vel per legem terrae." becomes:-
No free man shall be taken indeed imprisoned,

either dispossessed, or outlawed, or exiled, or in
any manner destroyed, nor passed over him, nor
sent over him, except by means of the legal
judgment his own equals indeed the law of the
land.
In my view, DUE PROCESS OF LAW does not mean that the judicial officer, such as the
magistrate on 17-11-2005, can disregard objections by refusing to deal with them!

Page 244
FORCED TO VOTE FOR BOTH HOUSES AND DENIED TO VOTE FOR ONE AT THE
TIME, REGARDLESS IF ONE ELECTION MAY BE INVALID
Another is sue is that where I object even to, say, one election being held, such as the Senate for
the time periods in the writs being in breach of legal provisions, and hence the writ are invalid
and without legal force, then there would be no option for me to go to a polling booth, if that is
what I desired, to vote for the House of Representatives, if I were to hold that the writs were
valid, because the Australian Electoral Commission has simply put a system in place, that one
must vote for both the Senate and the House of Representatives at the same time, and denies any
elector to vote for one in one way and for the other another time or not at all.
There is no legislation in place that allows the Commonwealth Electoral Commission to
terrorise, as I view it to be, electors to force them to vote at the same occasion, as constitutionally
and also by the provisions of the Commonwealth Electoral Act, even if both elections are held
on the same date, they are for all purposes two different elections.
An elector may have travelling plans within the state and already having made up his/her mind
about who to vote for in the election governing House of Representatives may then do early
voting. However, the elector may desire to seek to find out more as to the candidates standing for
the Senate and may therefore elect not wanting to vote for the Senate until the day of election
being held. Constitutionally, and indeed legally, an elector is entitled to do so but for some
ridiculous strange reason the Australian Electoral Commission refuses this to be allowed, as the
marking off by staff of the Australian Electoral Commission governs allegedly both elections at
the same time, regardless if the elector only desired to vote in the one election.
Likewise, the legislation requires that there “shall not be less than 10 days” in regard of the
nominations for the House of Representatives. Because this is a period of 10 day it means that
weekends cannot be counted, as I have extensively already canvassed in my material already
filed in previous held proceedings that are now before the Court. Yet, one find that on one
occasions the election was called on 24 December and the Australian Electoral Commission
nevertheless applied the “shall not be less than 11 days” (as then was) even so the public
holidays and week end the offices were closed. The Australian Electoral Commissioner who
specifically is appointed to ensure elections are being conducted according to law it the very
culprit to deny this to occur.
Hence, it is then remarkable that the Commonwealth Director of Public Prosecutions rather to
have those absurd abnormalities addressed and corrected nevertheless continue vexatious charges
against me the elector would be denied to later vote in the other election held the same day.
In my view the Australian Director of Public Prosecution should perhaps rather pursue charges
against the Australian Electoral Commissioner for acting unlawfully in holding elections
contrary to legal provisions.
Elections are being held for the benefits of the electors so they may choose, if they desire to do
so, a legal representative to act for them, and not that elections are to be held in such manner that
the Australian electoral commissioner can avoid having to work on weekends at the peril of
electors and candidates finding the offices closed during the very period provided for in the
relevant legislation “shall be not less than”. The very term “shall not be less than” is by
numerous Authorities around the world held to be to be a continuous period with the exception
of where it is 10 days or less as then the weekends are not counted as being included in the
number of days.
Therefore, besides the issue of the proclamation having been published after the writs were
already issues and as such no writs in regard the House of Representatives for this was valid and
Page 245
so with legal force as no vacancies existed to issue writs, the writs also failed to have the
incorrect time period on them, in conflict of what the relevant legislation provided for. And even
if we were to overcome these problems the conduct of the Australian Electoral Commission to
close its offices during the “shall not be less” period of 10 days also causes the elections not
being held according to law.
A problem is that the Australian Electoral Commission in its publications refer not to the relevant
time table of the State Senate legislative provisions but rather to the time table of ordinary State
elections, and by this deceive electors, candidates and the Government alike.
In my view the Australian electoral commission conducting elections and having the supervision
of it is a conflict and as I experienced ongoing the Australian Electoral Commission seems to be,
so to say, hell bend to use all legal trickery to circumvent matters to be heard upon their merits
and have matters appropriately addressed rather then to, so to say, sit at the table with any
objector and seek to rectify any of its wrongdoing.
People who are by law entitled to nominate as a candidate, being within the legislated period to
do so are nevertheless denied by the Australian Electoral Commission to do so because the
nomination period is shortened by 1 day or more.
As the Australian Electoral Commission has admitted to prepare thew writs for the governor-
General then clearly it itself was the cause of writs being incorrectly issued and cannot therefore
rely upon the Governor-General and Governors having issued DEFECTIVE writs, as they were
all the product of the deceptive (if that is the right word for it) conduct of the Australian Electoral
Commission to advise of elections time table.
We then have the added issue of the Australian Electoral Commission to deny an elector to vote
for each election separately!
In that regard there can be NO CASE TO ANSWER, as to any charges, as by the
FRUSTRATION caused by this all I am, as like others, prevented to exercise any rights (if they
were to exist) to vote in the manner as provided for by the Constitution and/or relevant
legislation.
Gillard J of the Supreme Court of Victoria himself has made clear that legislation is in place for
the Court to order cost against lawyers where they cause delays, protracted litigation, etc,
uncalled for. As such, it was appropriate for me to recommend to the Court that it was to order
the Prosecutor to pay $1,000 cost payable to the Salvation Army where they clearly were causing
undue delay in proceedings and protracting proceedings, as after all despite considerable effort
given by me to seek to avoid the vexatious charge regarding the 2001 failing to vote issue, and
the prosecutor submitting to the Court to have the matter adjourned pending a High Court of
Australia determination, which they themselves never so far pursued, then with the order still, on
foot and nevertheless the Commonwealth director of Public Prosecutions ignoring to comply
with the orders and having wrongly obtained a conviction causing further additional litigation
then the legislation providing for cost to be ordered against the lawyers concerned in my view
can be applied and should not be then held against me where it is the parliament that provided for
such kind of orders being made against lawyers who are abusing the legal processes.
As I view it, the charge of failing to vote in the 2001 purported Federal election was utterly
vexatious I then submitted to the Court in 2002, that it ought to order the Commonwealth of
Australia to pay $1,000 to the Salvation Army, where Gillard J also makes clear this can be done.
This was more as some gesture of a payment into the poor box by the Commonwealth of
Australia and that may have then driven home to the Commonwealth of Australia that it must get
its act together and not pursue vexatious litigation. However, the magistrate on 4 December 2002
did not deal with this at all. Obviously I was not entitled to seek cost on my own behalf in that I
conduct my own defence and cannot claim any cost for legal representation in that regard.

Page 246
In regard of the vexatious charge for failing to vote in the 2004 federal election I did not at all
repeat my suggestion as to $1,000 being ordered to be payable to the Salvation Army.
I was then horrified that the Commonwealth Director of Public Prosecutions pursued cost against
me for both charges and the magistrate did order cost of $500.00 for each charge payable to the
Commonwealth Director of Public Prosecutions.
As I never sought in relation of the 2004 any form of payment to be made to anyone as such any
order for cost in that regard was an absurdity. In regard of the first charge, I did not seek any
payment for my self and as such in that regard never should in that regard have been ordered to
pay any cost either.
Love v Williams and AEC v Williams
Recognising the significance and novelty of the litigation, and its potential to save other
elections, Foster J agreed that the AEC should pay all the respondents' costs on an
unusually generous indemnity basis, as if the case had been a public interest proceeding
(reported separately in (1994) 54 FCR 383).
Appeal Nos. SA27 and SA37 of 1993 and SA21A and SA30L of 1994 No. ML2944X of 1989
64. Furthermore, we think it is also at least arguable that his Honour's order for costs of 10
March, 1994, works a substantial injustice to the father. Whilst the sum of $750.00 may
not seem a very large amount, we think that an order for the payment of even such a
relatively modest sum may work a substantial injustice to a person of modest means (as the
father appears to be) particularly if, in principle, no order for costs ought to have been
made against him.
Hansard, Friday 16 August 2002, JSCEM (Joint Standing Committee on Electoral Matters);
QUOTE
Senator ROBERT RAY – I was not going to go to any of the referendum stuff. I just want
to go briefly to electoral litigation. When someone seeks an injunction, do they have to
indemnify the Electoral Commission for damages? Quite often, when you seek
injunctive relief, you have to guarantee that this is going call cost to persons you are
injuncting.
Mr Becker- No.
Senator ROBERT RAY –You don’t have to? This has two sides to it, in fact. It
sometimes inhibits injunctions if you have those penalties. On the other hand, it is
somewhat fairer to the organization that is injuncted. But it does not apply to you; I
did not know that.
Mr Dacey- No, Senator.
Elections are to be “FREE” and if people are being financially penalised as result of the
Commonwealth Director of Public Prosecutions using legal trickery to achieve some conviction
then it throws out for this also the entire democratic system of “FREE” elections.
And here we have another issue.
As a self educated constitutionalist, I am too aware that the Framers of the Constitution made
clear that any breaches or alleged breach of commonwealth law must be heard and determined by
a relevant State Court. What we have however is that the Australian electoral commissioner
Page 247
demands an elector to give an explaination as to why the elector allegedly has not voted. If the
elector fails to satisfy the Australian electoral commission (so its staff) about reasons given,
regardless if in fact the elector did vote but the staff of the Australian electoral commission by
error marked of the wrong name, then the person is being fined $20.00 and if failing to pay the
fin then this becomes a criminal matter. No such system was provided for win the Constitution
that somehow the Australian Electoral Commissioner could set himself up as some STAR
CHAMBER COURT and determine if a elector ought to be fined or not. It is not relevant if the
Commonwealth of Australia legislated for this, rather what is relevant is that the Framers of the
Constitution made clear that any alleged breach of Commonwealth law must be dealt with by the
relevant State court exercising federal jurisdiction. Hence, the entire process used by the
Australian Electoral Commissioner to elicit information/details of an elector and then use this in
Court as evidence in my view is utterly deplorable and any such alleged evidence must be
deemed to be inadmissible.
We cannot have that the Commonwealth Director of Public Prosecutions, for the Australian
Electoral Commission, comes with dirty hands to this Court and demands that I am punished for
some alleged offence using unconstitutionally/illegally obtained information and having been the
very cause of FRUSTRATION to prevent me in any event to vote even if I desired to vote
according to constitutional and other relevant legal proceedings.
What in effect the Commonwealth Director of Public Prosecution is seeking the Court to do is to
disregard relevant constitutional and other legislative provisions that may be in aid of me and
also those that may be against the Australian Electoral Commissioner and to merely operate, so
to say, as some RUBBER STAMP to record a conviction.
We also have the fact that constitutionally, , as is embedded in the Constitution, the Governor-
General can only be appointed by Her Majesty the Queen upon recommendation of the Home
Office at Downing Street. This the Framers of the Constitution made very clear as to avoid to
have some , so to say, political lapdog Governor-General to an Australian Prime Minister if the
Australian Prime Minister were to be involved in the appointment. As such, the Queen herself
lacked any constitutional powers, as was purported in the 1986 alleged proclamation, that the
Prime Minister of Australia is involved in recommending the appointment of a Governor-General
or can appoint a Governor-General. As currently Governor-General have not been appointed by
the Queen upon the required recommendation of the Home Office at Downing Street, then
clearly the appointments purportedly by a Queen of Australia upon recommendation of the
Australian Prime minister is unconstitutional and invalid. Hence, any proclamation and writs
issued by such pretend Governor-General is likewise unconstitutional and invalid. For this also
any other exercise of prerogative power by the purported Governor-General.
If the Commonwealth Director of Public Prosecutions seeks to rely upon the constitutional
powers of the Commonwealth of Australia to legislate in regard of elections, then I am well
entitled, as I do, to challenge the validity not just of legislation beyond constitutional powers but
the validity of the appointment of the purported Governor-General. After all, if the appointments
of purported Governor-Generals over the last purported elections being held were all
unconstitutional then the issues of purported proclamations, writs, appointments of Ministers of
the Crown, judges etc all are and remain unconstitutional and invalid.
While the high Court of Australia sought to elaborate about the coming to independence of the
Commonwealth of Australia it never did in fact at all bother to quote the relevant Hansard
records of the Constitution Convention Debates held in 1891, 1897 and 1898 to support its
case. It merely seeks to rely upon some kind of “gradual process”. One then must ask at what
date did the queen have a Governor-General representing her as the British Monarch and at what
Page 248
time did the Governor-General stop doing so? It can hardly be that this was a gradual change as
for purpose of enactments it is essential to know if legislative provisions were given royal ascent
by the British monarch or not.
As the framers of the Constitution made clear the Governor-General was the link between the
people of Australia and the British Monarchy. Because we are and remain to be governed by a
British constitution act then it is applicable in full force as the Framers intended or we disregard
the entire Constitution and have become a BANANA REPUBLIC where law and order is
whatever anyone desires to make out of it to whatever suits each person best.
The Framers of the Constitution all along contemplated that at some point of time the
Commonwealth of Australia would desire to become an INDEPENDENT nation and they made
clear that the Constitution was flexible and alive as it allowed the people by way of a Section
128 Referendum to decide in the appropriate time for this. The most recent referendum for a
REPUBLIC was rejected and as such a clear message that we are and remain British nationals
under the governance of the British Crown.
If the Courts could take over what a Constitution stands for then we do not need any
Constitution as we leave it up to the judges to play politicians and decide whatever law they
want to invoke.
Likewise so with politicians, that if they can change the application of the Constitution
circumventing Section 128 Referendum provisions then why indeed have any Constitution at
all?
Mr. WISE.-Yes. We have been striving all through to erect an independent

Commonwealth with certain clearly-defined subjects of legislation, and to provide very
strictly that the rights of a state should not be impinged upon by the undue exercise of the
powers of the Federal Parliament. In order to prevent that, we have constituted a Supreme
Court to interpret the laws of the Parliament. But the honorable member now comes
forward and says that the Parliament is to make the laws, and that the Ministers of the day
are to interpret them. The Parliament may make what laws it pleases. It may make laws
altogether outside the subject of the matters referred to it by clause 52, but unless in each
state there is a majority sufficiently strong to sway the Ministers in power for the time
being, those laws will not be declared to be ultra vires.
Mr. TRENWITH.-If there is a majority strong enough in any one state that will be
sufficient.
Mr. WISE.-If the Federal Parliament chose to legislate upon, say, the education
question-and the Constitution gives it no power to legislate in regard to that question-the
Ministers for the time being in each state might say-"We are favorable to this law, because
we shall get £100,000 a year, or so much a year, from the Federal Government as a subsidy
for our schools," and thus they might wink at a violation of the Constitution, while no
one could complain. If this is to be allowed, why should we have these elaborate
provisions 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 colonies
may unanimously agree? Why have this provision for a referendum? Why consult the
people at all? Why not leave this matter to the Ministers of the day? But the proposal
has a more serious aspect, and for that reason only I will ask permission to occupy a
few minutes in discussing it. Not that I believe that it will be carried, but I think it is an
Page 249
echo of a widespread misapprehension which prevails outside as to the duties and functions
of the Supreme Court. It very often seems hard to a layman that that which has been
enacted by Parliament should be declared to be illegal by a Supreme Court when the statute
is called into question during litigation between two citizens. It is hard, but like everything
else in politics, it is a choice of evils. The question is: Whether it would not be of much
greater disadvantage to the whole community to bring in the Supreme Court as an
interpreter of the Constitution before any precise case was taken before it, than it is to leave
the individual to suffer the hardship of finding that the Act upon which he relied was really
invalid? I will not use my own language in explaining the position, but, to have it put upon
record, I should like to quote a passage which occurs on pages 154 and 155 of Dicey's Law
of the Constitution. After pointing out that the American Supreme Court exists to interpret
the Constitution, and to see that effect is given to its provisions, the writer goes on to say
that-
The power, moreover, of the courts, which maintains the Articles of the Constitution
as the law of the land, and thereby keeps each authority within its proper sphere, is
exerted with an ease and a regularity which has astonished and perplexed continental
critics. The explanation is that the Judges of the United States control the action of
the Constitution, but they perform merely judicial functions, since they never decide
anything but the cases before them. It is natural to say that the Supreme Court
pronounces Acts of Congress invalid, but in fact this is not so. The court never
directly pronounces any opinion whatever upon an Act of Congress.
[start page 1687]
What the court does do is simply to determine A. is or is not entitled to recover

judgment against X.; but in determining that case the court may decide that any Act
of Congress is not to be taken into account, since it is an Act beyond the constitutional
powers of Congress.
If any one thinks this is a distinction without a difference he shows some ignorance of
politics, and does not understand how much the authority of a court is increased by
confining its action to purely judicial business.
In a book prepared by you, sir, entitled A Manual of Reference for the use of Members of
the National Australasian Convention, to which frequent reference has been made, the
matter is further dealt with. You say, at page 126, in words that I would like to adopt as
part of my argument:-
No doubt the power given is very great, but it is exercised in a manner and by a body
which affords the least possible chance of friction and quarrels between the central
and the provincial governments. A veto by the central authority has to be exercised at
a time when the public attention of the provincial electors is directed to the matter; at
a time when, perhaps, party spirit runs high, when angry passions pervade both
factions, and when the subject-matter is invested with an importance which is not
intrinsic, whereas a declaration by a court that the statute is invalid is withdrawn
from the sphere of politics. Each individual and each state looks upon it that such
declaration is given only in pursuance of the Constitution. Public attention is
probably directed to other matters, and the question has, in many cases, shrunk into
its native insignificance; and "it is to the interest of every man who wishes the Federal
Constitution to be observed that the judgments of the federal tribunals should be
Page 250
respected, and they take it that the courts are the protectors of the federal compact,
and that the federal compact is, in the long run, the guarantee of the rights of the
separate state."
If the proposal of the honorable member (Mr. Gordon) was carried into effect-though of
that, I think, there is not the slightest chance-it would follow that any person who was
aggrieved by an unconstitutional enactment would have to persuade the Attorney-General
of the state or of the Commonwealth, as the case might be, to in some way set the law in
motion to ascertain the legality of the enactment, If the enactment was one which
affected a matter exciting strong party feeling, the result would be that the abstract
question of its validity would have to be argued before the court at a time when public
feeling was excited, although it would be of the utmost importance that the decision of
the court should be entirely free from all suspicion of political bias. Then, too, the
enactment might be valid in parts and invalid in other parts, or it might be impossible
to interpret it in the abstract. It is impossible to foresee the bearing of a statute upon
all possible cases, and it is only when a case comes for determination before a court
that the court is able to say that in that particular case the statute does or does not
afford protection to the citizen who has relied upon it. The honorable member's
proposal would remove at once the greatest of all safeguards to the impartiality and
usefulness of the Federal Court, by taking away from it its right to deal with matters which
are brought, as lawyers term it, to a distinct issue, and with precise and definite points, in
regard to which the full bearing of every word of the judgment could be appreciated?
Instead of the court being able to determine the legality of an enactment in its bearing
upon any particular case, there would be considerations introduced which were
utterly foreign to the atmosphere of the tribunal, and that would seriously impair the
public confidence in a court which, with us, as in America, will, I believe, prove to be
the ultimate protector of the liberties of the people. Then, too, the amendment is in its
form so complicated that its practical working will be impossible. The honorable member
said truly that the Attorney-General constantly intervenes now. But he intervenes at the
expense of the individual. The individual presents his case, and gives a guarantee for costs.
Under this proposal all that would happen would be that the individual who wanted to
assert [start page 1688] his right would have a barrier placed between him and the
obtaining of justice. He would have to satisfy the Attorney-General for the time being that
he would be able to pay the costs of any action, and he would have to bring sufficient
political pressure to bear upon that officer to get him to move in the case, and finally he
would be left to contest the matter in his own interests and in his own name. The result
would be that the rights and liberties of every citizen in the community would be
placed at the mercy of a chance parliamentary majority.
Mr. GORDON.-That is the position now-the rights and liberties of every individual are
at the mercy of a parliamentary majority.
Mr. WISE.-The honorable member is now speaking of rights in respect to legislation. If

the Parliament of South Australia were to pass a law contravening the Merchant Shipping
Act
Mr. GORDON.-I am not speaking of Imperial legislation.
Mr. WISE.-Suppose the Parliament of South Australia wanted to get rid of the Plimsoll
Mark Act-even though there were a majority it would be invalid, but according to the
honorable member, when, we have here a case exactly analogous, if the Constitution limits
Page 251
the power of the state, and enacts that certain powers shall belong exclusively to the
Commonwealth Parliament, and that if the state deals with them it invades the authority of
the Commonwealth Parliament, the individual is to have no rights unless he can persuade
the Government of the day to take up his case. It is in the interests of the poorer and
uninfluential classes of the community, it is. in the interests of the minority, that this
amendment should be rejected, because it places an obstacle in the way of obtaining
that justice which ought to be free to every individual in the community.
Mr. HIGGINS (Victoria).-I should like to add my protest against this new clause. I am
bound to say something, because the honorable member (Mr. Gordon) says it is only the
conservative and timid lawyers who would venture to oppose this proposal.
Mr. GORDON.-I did not say that. I said as a rule the legal profession is, according to
Herbert Spencer, a timid and conservative class.
Mr. HIGGINS.-That may be so, and if the honorable member says he did not make that
statement it is all right. Anyhow, I thought he said that only conservative and timid lawyers
would oppose this clause. There is no doubt the intention of the honorable member is
excellent. He wants to diminish litigation. If he can show that this will diminish litigation
to any material extent, and, at the same time, will not involve us in a great many dangers to
our liberties, I will go with him, but he has not shown anything of the sort. As Mr. Wise
has shown, it will throw an unpopular minority into the power of a chance Ministry of the
day. We must see to-day that the rights of individuals, even unpopular individuals, are
preserved in the Constitution. I think Sir John Forrest said that I personally had not got
sufficient respect for the rights of individuals.
Sir JOHN FORREST.-No.
Mr. HIGGINS.-Do I understand him to refer merely to private property?
Sir JOHN FORREST.-Not the same respect as I have.
Mr. HIGGINS.-I understood the honorable member to put himself on the very highest
pedestal, and by contrast to put me on the very lowest. At all events, I feel that if this were
carried, an unpopular individual, to obtain his rights and liberties, would have to go cap in
hand to and be at the mercy of the Government of the day. I was thinking of the pig-tail
case which occurred in California, and which I alluded to some time ago, where an
abominably unjust law was passed against Chinamen. It was passed to persecute
them in regard to their pig-tails, which they [start page 1689] regard with exceptional
reverence. That law was declared to be unconstitutional as a law passed by a state. I
ask honorable members to consider the great difficulty there would be in getting the
Federal Congress or Federal Executive to interfere in the case of Chinamen, so as to
enforce their rights in such a case. There was an exceptional law which should never have
been passed. It was distinctly a persecuting law. Any practical politician would see the
great difficulty there would be in appealing to a Federal Executive, especially if there was
an election approaching, to enforce the just rights of Chinamen in such a case. The same
thing might happen supposing a federal law were passed which was outside the
Constitution. Supposing that a majority of the state concerned happened to regard the man
as unpopular supposing a law were passed that no one bearing the name of Jones should be
admitted into the state of Virginia, the law might be directed against a certain person
named Jones, and it would be unconstitutional, and Jones could not enforce his rights to go
Page 252
into that state. I ask, is he to be compelled to go cap in hand to the Attorney-General of the
state of Virginia to enforce his rights? I feel that, with the very best intentions my
honorable friend is making the gravest of mistakes. So far as regards the main purport of
the amendment, it would mean this: That you could only get a point of this sort decided by
having a state or Commonwealth intervening as a party. You would turn judicial questions
into political questions. You would proclaim-"Here is a question between the state and
the Commonwealth; here is a political question"; and you would make the Judges
partisans. It is one of the great advantages of private persons being able to raise these
points, and not the states or the Commonwealth, that you keep the judicial bench free
from the taint of political partisanship. I feel that the more you look at this thing all
round, the more inconsistent it is with the very first principles of justice. It may be said-
Even supposing the law does go beyond the Constitution in some degree, surely it ought
not to be left to a private person to upset it." I say it ought to be upset at once and at the
very earliest point. As soon as ever you find it has gone beyond the bounds you ought
to say-"This thing is illegal." Otherwise you will leave to the Ministry of the day these
powers of which you are so careful, giving them to a majority of the states and to a
majority of the people. You would allow the Ministry of the day to exercise a
suspending power as to whether it would enforce a law or not, which is most
dangerous. It is one thing to induce a Government or Parliament to pass an unjust law, and
it is quite another thing to induce a Government for one excuse or another to hold its hand
from acting. What I fear is that you would often induce the Government to withhold its
hand from acting, for fear it would incur opprobrium or unpopularity. I sincerely hope the
amendment will not be carried.
Mr. GORDON (South Australia).-Of course the objections raised are those I expected,
only I think they might have been put with even greater force. And there is a great deal
more to be said in favour of my motion than I have been able to say. I agree at once with
the interpretation of Mr. Wise that this measure is a simple method of amending the
Constitution by acquiescence. I intended it to be so, and that is not a demerit-it is a merit-of
the proposal. As for the argument that you might as well have no Constitution at all if you
allow amendment by acquiescence, that seems rather wide of the mark. People going into a
partnership lay down the general terms of that partnership, but they may be qualified by
consent. But you must have in your partnership general rules laid down. There are the
general lines laid down in the Constitution, which within certain limits may [start page
1690] be modified as agreed, so that the honorable and learned gentleman's argument in
that view, I think, fell to the ground. Mr. Higgins enforced the argument as to the rights of
the individual. Now, I have already said that I think those individual rights should be
subordinated to the general rights of the community, and to their interests as expressed in
the law for the time being. I object altogether to the objection that party faction would
govern. What would govern it would be the sense of the community for the time being.
However, as there appears to be no hope of carrying the proposal, I must content myself by
submitting it to the committee.
Mr. Gordon's proposed new clause was negatived.
“AND NOT OTHERWISE”
I did pursue on 2-11-2001 before Finkelstein J of the Federal Court of Australia challenge the
validity of the writs issued, (and later also the validity of the proclamation, as it was too late
published) and so well before the purported Federal election on 10 November 2001 was held, and

Page 253
hence, I was not disputing the validity of the election result but rather the validity of the writs. If
the writs were defective, and so invalid then there never was any election.
The High Court of Australia in Sue v Hill does elaborate upon the term “AND NOT
OTHERWISE” and it has absolutely nothing to do with not being able to challenge the validity
of an election in any Courts of law, rather that it was relating to that it could no longer be
challenged before the parliament itself, as was originally occurring.
McClure v The Australian Electoral Commission and ORS M119/1998 (27 April 1999)
MR GAGELER: Your Honour should take out of Abbotto the conclusion that his Honour
reached at page 356, where his Honour was doing nothing more, probably, than just
applying to the Act as updated by the inclusion of section 211A, the conclusion of
constitutional validity reached by Chief Justice Gibbs in McKenzie v Commonwealth that
his Honour cites at line 15 on page 356. That is one point your Honour should take out of it.
The other point is at page 357 at about line 32 where his Honour said that:
In argument, the petitioner placed particular reliance on ss 364 and 362(3) of the Act.
Section 364 provides that the Court of Disputed Returns shall be guided by the substantial
merits and good conscience of each case without regard to legal forms or
technicalities.....When that section speaks of the "substantial merits" of the case, it means,
of course, the substantial legal merits of each case rather than what might be perceived to
be the fairness of the law itself.
In my view, the Court of Disputed Returns, is perhaps at best a STAR CHAMBER COURT, in
that it can ignore the proper application of legal provisions and hand down a decision it deems
appropriate in the circumstances. Therefore, a candidate who may lodge a valid objection may
still end losing the case because the Court of Disputed Returns could hold that his number of
votes would make no difference if a new election was ordered and so not worthwhile to pursue.
In fact, where I disputed on 2 November 2001 each and every writ issued by the Governor-
General and every governor for being defective and without legal force, it was beyond the
powers of the Court of Disputed Returns to deal with this matter. It can only deal with one
election held involving the objector. It could not even have dealt with any objection by me
against both Senate and House of Representative elections in the same case, as it is beyond its
powers to do so.
When no election or purported election has been held then my challenge commenced on 2
November 2001 to the validity of holding an election on 10 November 2001 clearly was in any
event not to challenge the outcome of the election, as none then existed, but rather the holding of
such election.
It ought to be understood that at no time was I requested and neither given an opportunity to vote
in any purported 10 November 2001 federal election that was established in accordance to
constitutional and other relevant legal provisions.
If I am caused to be punished and end up with a criminal record for pursuing that elections are
held according to constitutional and other relevant legal provisions then the Courts JUSTICE
system is in a sorry state of affairs.
I am well aware that there is an implied bias by the County Court of Victoria where it shares the
same ABN business registration number as the Justice Department and the magistrates Court of
Victoria against which I appealed its conviction, and this also is a issue of concern to me.

Page 254
To me it represents to be a STAR CHAMBER COURT which is outlaws under the, so called,
1640 STAR CHAMBER COURT Act and which is part of Victorian legislation, at least when I
last checked the Act Interpretation Act 1980 (Vic).
I refer back to the extensive set out on this matter that I placed on file in my ADDRESS TO
THE COURT filed for the 16 and 17 November 2005 proceedings held before the Magistrates
Court of Victoria at Heidelberg and now being DE NOVO before this Court. For example that
the County court of Victoria, the Magistrates Court of Victoria, the Justice the Department and
among many others the Prostitution Committee are all in the same business by sharing the
same ABN number.
Also to consider;
Title COURTS AND TRIBUNALS LEGISLATION (FURTHER AMENDMENT) BILL

House ASSEMBLY
Activity Second Reading
Members DEAN
Date 16 August 2000
Page 64
16 August 2000 ASSEMBLY
Page 64
COURTS AND TRIBUNALS LEGISLATION (FURTHER

AMENDMENT) BILL
Second reading
Debate resumed from 15 August; motion of Mr HULLS (Attorney-General).
Dr DEAN (Berwick) -- Last night I made mention of a certain portion of the bill that
is perhaps gaining more interest than other sections. I noted that the Attorney-
General has spent most of his contribution to debate on the bill on that particular
point rather than the substance of the bill. That particular point is the removal of the
oath to the Queen from the two oaths of office given by lawyers prior to being
admitted to the Supreme Court.
Recapping, it was suggested that because England had done away with it, therefore
we should.
I noted that that was an interesting approach by the government. I also noted that
those states that do not have the oath to the Queen -- of course, South Australia,
Tasmania, Northern Territory and Queensland do have it -- have not seen fit to
introduce legislation to remove that oath of office. That is the nub of the point I wish
to make in the few minutes that I will talk on the bill.
There is absolutely no mention in the second-reading speech of any agreement by
the judiciary to the removal of the oath to the Queen.
Mr Hulls -- Don t disclose confidences!
Dr DEAN -- I know from the Attorney-General s past conduct that, while he would
not refer to any particular conversations, if he had the support of the judiciary he
would let everybody know that.
The question then arises of whether he has the support of the judiciary. My
information is that he does not. Therefore, although the opposition does not oppose
the bill it is of the view that it is inappropriate to go ahead with legislation to change
the procedures which have been set up and which are accepted by the courts,
particularly when those courts have not consented to the changes and may not wish
the introduction of legislation to make them. It is a total interference by the
legislature in the procedures of the courts.
It is astounding to take the step of introducing legislation and interfering with the
judicial process on such a small issue, presumably because of a political belief. To
not have the agreement of the judiciary is totally inappropriate. I could understand

Page 255
if there were a major conflict between the legislature and the judiciary and we could
have it out; however, it is an issue not of major conflict but of political whim.
The fact is that many people still recognise that until Australia becomes a republic
the courts are the Queen s courts, and that therefore the Queen has a role to play;
and it may be traditional. I am happy to state my view that if the courts come to the
conclusion that some people they are admitting to practice may not wish to
Page 65
make a particular oath, I am very happy for the courts to abolish that oath. If they
as courts believe they wish to retain an oath I am not happy that the legislature
should step in and force them to change the situation.
On an issue as trivial as this it is a misunderstanding of the separation of powers to
allow the legislature to instruct the courts on how to go about their internal
procedures -- and this is an internal procedure. When one is admitted to practise as
a barrister and solicitor of the Supreme Court one goes before the Supreme Court
and the justices of the court arrive at the bench to listen to one take the oath of
admission. The bill means that the legislature has stepped into their court and said,
Because I, the Attorney-General, have a political view, I will step into your court and
tell you what you must do about this matter .
I was going to say it is incredibly naive -- I do not want to cast aspersions on
anyone -- but it is beyond belief that someone who has on many occasions
espoused separation of powers and the difference between the legislature and
judiciary would make such a slip. We have been told that the next step will be
legislation to tell courts how people who appear before them may dress. Whether
the profession or the judiciary decide they do or do not want people to wear wigs
when they appear before them, we are told that will be the Attorney-General s next
step. One has to ask, Where will it stop? .
Mr Hulls interjected.
Dr DEAN -- That is a cheap shot but it misses the principle.
I am in favour of the abolition of wigs, particularly in civil matters, but the difference
between me and the Attorney-General is that I will not and would not introduce
legislation, firstly, on such a trivial matter, and secondly, on a matter that tramples
on the jurisdiction of the court. If the Attorney-General does not understand that
principle at all, what will be the next step? Perhaps the Attorney-General will come
to the view that there are other things about the courts he does not like and he will
introduce legislation on them? Perhaps a couple of the decisions they make will not
suit him and he will legislate on those. Once you open the door to legislation on the
internal workings of the courts, you are opening a door to a breach of the separation
of powers.
In my view, a Court of law must at all times remain a Court of the people (Queens Court) and
cannot have a business registration as then it no longer is a Court of the people. Neither do I
accept that the Commonwealth of Australia has any constitutional powers to force upon a State
Court to become a registered business entity being it for taxation or other purposes, as this
interferes with the sovereign rights of the States to have their own independent courts.
Therefore I view the judgement of the Magistrates Court of Victoria at Heidelberg to issue orders
of convictions is ULTRA VIRES, as it is done by a some kind of STAR CHAMBER COURT
type of Court that has a business interest and is no longer a Court independent of any business
interest.
“JUSTICE MUST NOT ONLY BE DONE BUT SEEN TO BE DONE”

Page 256
It cannot be held that any Court that is having a business interest, and indeed seems to be
evaluated upon its expenditure and rate of convictions, etc, could be deemed to operate as an
INDEPENDENT COURT for the people.
When is a person deemed to have voted? If there is no way it can be verified?
As the Commonwealth Director of Public Prosecutions already indicated in the past, it would
perhaps take truck load of paperwork to go through as to ascertain if there might be some
material on foot that could be held that I had in fact found to have voted. Then again they may
never find anything regardless if in fact I had filled in ballot papers, for the simple fact that from
time to time staff at the polling stations do make errors and mark of thew incorrect name. Also,
dog and cats were recorded at times as electors.
In the 1970’s my (first) wife and I did vote in elections, and yet, I did not naturalize until 1994.
Then, I found out one day, when attending to vote once again, that I was no longer on the rolls,
and it was explained to me that a check had been done at my listed residential address and it was
found I was no longer residing there, hence I was removed from the rolls.
At that time, my (then) wife and I had enrolled as being citizens because we held we were for
that we were residing in the State of Victoria. The confusion about “citizenship” is considerable
as the transcript indicate of the various JSCEM (Joint Standing Committee on Electoral
Matters). Hence people in the belief that “citizenship” related to where one is domicile will enrol
in good faith being totally unaware that it is an utter and sheer mess.
As I view it, the Commonwealth of Australia is seeking to “brainwash” the Australian
community at large by pretending that naturalization is becoming an “Australian citizens” this
even so at time of federation the Framers made clear that “aliens” who had paid their POLL tax
would retain their Colonial (now State) franchise, and so would obtain upon federation
Commonwealth franchise by being then also Australian citizens.
On personal and religious grounds also I would never vote in any election that involves people
who are warmongering and send troops out to in effect murder children in their beds by an armed
invasion, dropping bombs in discriminatory on their residence, merely for political gains, such as
was occurring in Iraq. In particularly not where I have extensively campaigned against the
unconstitutional and illegal conduct of such armed invasion involving Australian troops.
As a self educated “constitutionalist” I for one have a decent perception as to what the Framers
of the Constitution intended, and it certainly aint warmongering, as indeed they devised a
Constitution to seek to avoid any Jack-in-Office to act unilateral without proper cause.
Mr. SYMON.-A written Constitution is not exhaustive. We have implanted

responsible government in this Constitution, but we have not said so in so many
words. We must have some regard to the instrument we are framing, and we ought to
look upon it as a Constitution with plenty of elasticity, under which all the
constitutional usages will apply and be interpreted. If the Commandant was a kind of
Jack-in-office, and wanted to run his army where he ought not to, you could dismiss
him. If the Governor-General interfered unduly you would have to say respectfully-
"You must not interfere in these matters; if you do, we shall repeal the Act, and there
will be no army; you will be Commander-in-Chief merely nominally."

Page 257
Constitutionally, the Prime Minister has no say, as it is the Governor-General who decides
matters to declare war or peace on behalf of the Crown, and the Minister of Defence then is the
responsible Minister who acts within the authority provided.
It would therefore be utterly and totally absurd that where I oppose such kind of mass murder
upon innocent people I somehow could nevertheless be forced to vote in a manner as to show a
preferences that might in fact end up having my vote counted for a war mongering person.
It would be contrary to the very POLITICAL FREEDOMS the Framers of the Constitution
provided for.
Members of Parliament themselves maintain a right to abstain from voting or not even turn up
for voting, and consider this to be their right, and hardly could this right be any less for ordinary
electors.
Regardless if an election is unconstitutional or not, and regardless if I desire to vote or not, that I
stand as a candidate has no purpose and neither should be seen as such as to legitimate somehow
that then the purported election was valid. Standing as a candidate it gives me the added excuse
not to vote because I cannot be forced to vote for an opponent, which I would be forced to do if I
had to vote according to the voting system the Parliament devised.
In the last 2 purported federal elections I accompanied my wife to the polling stations. In fact,
during the 2004 purported federal election the staff at the table then commented to my wife that
her surname was familiar to her. Well, as I was listed as a candidate obviously it ought to have
been familiar to her, where there were only a handful of candidates, and only one with an
hyphenated name.
As such, I attended to the poling stations on both occasions. In fact spend about 15 minutes at
least in the polling station in 2004. I even drew the attention of the electoral officer in charge
about the fact that there were how to vote cards on the floor.
As such, no one can dispute that I never attended to the polling station.
The issue is what constitute failing to vote. The High Court of Australia itself has made clear that
because it is a secret ballot no one therefore is entitled to check if a person actually fills in a
ballot. Therefore in that regard the filling in or not filling in of a ballot paper cannot be an issue.
As already covered above, the staff at polling stations do by error mark off the incorrect names
and so people who may have actually cast a vote may still be deemed not to have done so.
Therefore, the charge of failing to vote is a vexatious one that seems to rest upon whatever the
Australian Electoral Commission concludes regardless if in fact the person may have caste a
vote.
If for example a person caste a postal vote but it may not have arrived by the Australian Electoral
Commission because, say, the mail, was lost by Australian Post, then the person having posted
his/her ballot paper nevertheless can be deemed not to have caste a vote and be fined by the
Australian Electoral Commission.
I for one deem that I was under no legal obligation to give the Australian Electoral
Commissioner any explanation as the Framers made clear that only a State Court could enforce
Commonwealth law against a citizen. And, considering the comments I discovered being made
by the Australian Electoral Commissioner about me on the card they are holding, I am certainly
not going to reveal to much details I hold is none of their business.
A major issue by the Framers of the Constitution was that the Commonwealth of Australia
should not be permitted to interfere with a persons religious belief in any manner what so ever.
Page 258
As they made clear they didn’t want to have a kind of Northern Ireland kind of religious dispute
in the Commonwealth of Australia. Therefore, nothing the Commonwealth of Australia in that
regard can do as to try to force me to vote against my religious views that I oppose war
mongering and in particular will not vote for those committing and/or participating in human
rights violation, mass murder, assassinations, crimes against humanity, etc. The right of any
person to express opposition against such deplorable deeds cannot be denied. This is the very
peaceful right as any protester is entitled to do.
In my view, any judicial officer who were to contemplate let alone convict me would act in
derelict of his duty, and contrary to the very intentions of the Framers of the Constitution who
made clear that they wanted a structure of peace and indeed expressed this in Section 51 by using
the wording;
“The Parliament shall, subject to this Constitution, have powers to make laws for the
peace, order, and good government of the Commonwealth with respect to;”
for the record, I am the only person who formally applied to the High Court of Australia to issues
within Section 75(v) a Prohibition and mandamus against various Ministers , such as in regard of
what I hold is the unconstitutional detention and/or deportation of refuges and children born to
them who are by birth Australian born (British nationals) and wrongly deported as “Stateless”,
the issue of “citizenship” and such as the issue of the unconstitutional deployment of troops for
an armed invasion into Iraq. On 11 February 2003 the Registrar refused to accept the application
on the basis that it was not according to the Rules of the Court and recommended certain changes
to be made, which I complied with and on 18 February 2003 presented the amended applications
as per her directions. Hayes J then the next day on 19 February 2003 refused to accept the
application for filing and as I understand it claiming the application was not according to the
Rules of the Court, even so it was prepared as directed by the Registrar’s format. Gummow J
upheld the ruling of Haynes J subsequently.
On 18 March 2003 I then lodged in the High Court of Australia a new application that basically
pursued those three above issues, and left off other applications, albeit now supported by about
800 pages of supportive documentation addressed in the various points and backed up by
relevant Authorities and Hansard quotations. Haynes J on 19 March 2003 (The day the armed
invasion commenced into the sovereign nation Iraq) again refused the application to be accepted
for filing, and Gummow J later upheld this decision also. Yet, I understand Kirby J then, so to
say, put a call out to lawyers that they should seek to challenge the validity of the “citizenship”
legislation.
Still, the fact that I opposed the unconstitutional armed invasion into a sovereign nation (Iraq) is
therefore on Court file. I can do no more but to lodge applications and if any Court refuses to
hear and determine applications upon their merits then that is something that is beyond my
powers to overrule, other then that I can expose this. Constitutionally however, there is no power
for the High Court of Australia to refuse to hear and determine upon its merits any application
involving the interpretation of the Constitution as the Framers made clear that an application
“must be heard”.

Mr. LYNE: I think I may say that we do not want to see in future generations either a
successful or an unsuccessful revolution. We want in this democratic country to lay the
foundation of a constitution on which ultimately the voice of the people must be heard and
must predominate. If you frame any other constitution you may depend upon it you are
laying the foundation of trouble that we little know of or heed at the present time.

Page 259
In my view, we might very well end up with a revolution if people are robbed ongoing of their
constitutional rights and subjected to unconstitutional and other illegal demands and the Court
are acting in a manner that is interpreted to condone such unconstitutional and/or illegal conduct.
Indeed, the framers of the Constitution time and again warned against this!
CONTRARY TO MAGISTRATES’ DIRECTIONS OF 4-8-2006 NOT TO PRESENT

EVIDENCE
Despite that previously the magistrate directed that the Commonwealth Director of Public
Prosecutions was to provide me with all relevant material relating to the charges, other then a
few document there was a total failure to do so.
As I did explain to the magistrate on 17 November 2005, the Director of Public Prosecutions
never had questioned me if I had done any postal voting and neither presented any evidence to
prove I had not done so.
Clearly, my earlier submission to the magistrate that there was NO CASE TO ANSWER was
correct and should have been accepted, in view that despite the decision of a previous magistrate
the Commonwealth Director of Public Prosecutions failed to prove I had not voted. It merely
sought to rely upon Section 388 of the Commonwealth Electoral Act 1918 despite that the
previous magistrate already had overruled this and neither party appealed that ruling then, and as
such remains on foot.
There is an other significant issue. The Commonwealth of Australia has provided that payment is
made per vote for which the elector voted. This in effect means that a candidate like myself who
does not have the enormous wealth as large political parties have, cannot, if desiring to do so, can
afford advertising campaigns, where as opponents belonging to a major political party aware that
they will get tens of thousands if not hundreds of thousands of dollars fas payment per vote, they
then can based upon engage in an expensive election campaign. Hence, there is no free and
proper election as the payment per vote denies a fair and proper election.
The Framers of the Constitution made clear that even the poor should be able to be a candidate
and be elected, yet, the way the Commonwealth of Australia is manipulating elections, by
demanding payment as a deposit from a candidate, which in itself can cause severe financial
hardship to this candidate indicates that there are no fair and proper elections. How on earth then
could any judicial officer enforce unreasonable, unconstitutional and illegal requirements
associated with purported elections as now pursued by the Commonwealth Director of Public
Prosecutions?
Now what is the position, one may ask, if a person attends to a polling station, has his name
marked off and then walk out without accepting the ballot papers? Is then there a failure to
accept the ballot papers as a failure to vote even so his name was marked of as having voted?
What if the person accepts the ballot papers and then walk straight to the ballot box and deposit
the unmarked ballot papers in the relevant boxes? Is then his name nevertheless marked of or
remained marked of despite that it was held he did not fill in the ballot papers?
As I understand it there is no specific legislation that sets out precisely at what time it is deemed
that an elector has voted or when not. It seems to be up to the Australian Electoral Commissioner
to determine, rightly or wrongly, that an elector has not voted, where there is a lack of any proper
manner to really establish if a elector did or didn’t vote.
PUBLISHING OR REGISTERING
Because my numerous complaints have been dragging on for several years, since 20 October
2001, it seems that rather then to appropriately address the matters, ways have been sought as to
Page 260
try to circumvent my complaints, such as by amending the Act Interpretation Act (Cth) that a
proclamation can be published in the Gazette or be registered. By the amendment of the
legislation that instead of publishing a proclamation in a Gazette the Governor-General can
instead merely register the proclamation it effectively seems to overcome the problems I raised
that the proclamation was not published in the appropriate manner on or before 8 October 2001
prior to the time it was to come into effect.
Just that this amendment of the Act Interpretation Act (Cth) does not operate in that regard
whatsoever, as the Act Interpretation Act a legislation by the Commonwealth of Australia cannot
undermine what the Framers of the constitution intended.
It is obvious clear to me that there is a lack of proper advise of “constitutionalist” such as I am,
who have a better perception of what is constitutionally applicable in regard of certain
constitutional matters. After all, Section 32 of the Constitution is not governed by the term
“Until the Parliament of the Commonwealth otherwise provides” and as such one must read
Section 32 in regard of the “proclamation” as was intended by the Framers of the Constitution
being that such “proclamation must be published in the Gazette before it can be enacted upon.
The Commonwealth of Australia has no legislative powers to interfere with the true meaning of
“proclamation” as referred to in the Constitution.
WATSON v_ LEE (1979) 144 CLR 374;

BARWICK C.J.
To bind the citizen by a law, the terms of which he has no
means of knowing, would be a mark of tyranny.
It appears to me that the Commonwealth of Australia, as like with the word “citizen” is slowly
seeking to amend the Constitution (albeit unconstitutionally) by pretending different meaning to
words then intended by the Framers of the Constitution.
Sure, the Commonwealth of Australia has to some degree constitutional powers to direct the
prerogative powers exercised by the Governor-General in regard of matters regarding its
legislative powers, and as such, for example could legislate that every appointment of any public
servant must be “proclaimed” or otherwise might be “registered” by the Governor-General, but it
is another matter as to purport that somehow constitutional meanings are also being amended by
this. The Commonwealth of Australia simply cannot amend any word of the Constitution or give
a different meaning to it unless it is given specific powers to do so. Section 32 is clearly not a
Section that falls under this and in fact neither Section 10 of the Constitution that requires that
time tables are applied by State legislative provisions.
What we have therefore is an attempt by the Commonwealth of Australia to even further mess up
what elections are about, rather then seeking to resolve matters.
With the ongoing, over numerous years, of lawyers being involved on behalf of the
Commonwealth of Australia (including the Australian Electoral Commission) against me one
would have thought that common sense ought to have prevailed and those lawyers at the very
least would have made some attempt to try to mediate with me and try to get some proper
understanding as to what I am on about and the objections I have made and how to properly
address those issues. However, it appears to me that rather then to try to appropriately address the
issues their effort seems to be directed to try to circumvent having a matters corrected and to
have the Courts making judicial decisions upon the merits of my objections by deceiving the
Courts as to its jurisdiction.
It ought to be obvious that if the Court were to declare that indeed the 2011 purported federal
election was unconstitutional and/or otherwise invalid then this will have grave consequences to
Page 261
those in the seat of power and also to the Australian Electoral Commissioner and indeed also to
the Commonwealth Ombudsman.
They all refused to appropriately address the issues. In September 2002 I, for example, then filed
a formal complaint with the Commonwealth Ombudsman, against the Australian Electoral
Commission, that it failed to allow any person entitled to vote in federal elections to vote if they
were held in the concentration camp styled (unconstitutional) Commonwealth Detention Centres
or other prison facilities. The Commonwealth Ombudsman then declined to investigate the
matter, just that we no know that hundreds of people were wrongly held in detention who were
lawfully residing in the Commonwealth of Australia, indeed the Vivian Solon Alvarez case is a
clear example where she was subsequently unconstitutionally deported also.
The term “ACCORDING TO LAW” was not applied and still is not applied in regard of people
accused or deemed by the Commonwealth of Australia to be unlawfully in the Commonwealth of
Australia, as rather then to place any such person before a State Court as to determine their legal
position the Commonwealth of Australia, albeit unconstitutionally, simply allows public servants
to make such decisions and override the legal rights of people like Vivian Solon Alvarez.
What the Commonwealth of Australia is seemingly trying to do is to create the same kind of
denial of justice with electoral matters.
The Commonwealth Ombudsman refusal to investigate in 2002 was not because there was no
jurisdiction to do so but merely by assuming that people would not be wrongly locked up in
detention. Well, it is remarkable that the same Commonwealth Ombudsman refusing to
investigate my complaints (as likewise the JSCEM refused to do so when I complained to it in
September 2002 about this also) we now know that hundreds were wrongly detained. If therefore
harm came to them by this wrongful detention where had the Commonwealth Ombudsman
investigated my complaint in September 2002 and then discovered that indeed people entitled to
vote were wrongly denied to vote because the Department of Immigration without due and
proper regard of DUE PROCESS OF LAW merely caused people to be detained regardless of
their true legal position and those holding those detainees simply disregarded the true legal
position of those detainees then undue prolonged suffering was directly contributed by the very
Commonwealth Ombudsman now appointed to investigate wrongful detention. Unlikely would
the Commonwealth Ombudsman expose his own wrongful conduct, as likewise unlikely the
former Chief Commissioner of the Australian Federal Police Mick Palmer was to have
exposed his own wrongful conduct in detaining people in such cases. Hence, their investigations
are in my view with bias.
How can anyone who fails to make reasonable attempt to inquire as to the constitutional
provisions and its proper application be in any capacity to adjudicate or otherwise determine
what might have been done wrong. Indeed how could such person make proper
recommendations?
How can any judge of any court of law possibly determine my guilt or innocence unless this
judge first seeks to explore the true intentions of the Framers of the Constitution upon the issues
I have raised and not merely relies upon ULTRA VIRES decisions by the High court of
Australia made by judges who lacked to be “constitutionalist” and at times relied upon parts of
the Hansard records of the Constitution Convention Debates, out of context and contrary to
what was intended by the Framers of the Constitution.
Mr. WISE (New South Wales).-I do not like to speak with any confidence after such a
strong expression of opinion from one so well qualified to give an opinion as the Attorney-
General of Victoria, but my recollection of the reasons which led to the first part of the
clause being inserted in the Draft Bill of 1891 leads me to say that the words were intended
Page 262
to limit the legislative jurisdiction of the states by such necessary restrictions as were
thought desirable to give the Federation power to settle disputes between states arising
from the exercise of the legislative authority within each state. I very much regret that Mr.
Clark's memorandum, a portion of which I read yesterday, has not been returned. In the
concluding part of that memorandum he draws special attention to these words, and points
out that they were a necessary complement to the implied surrender of the right to claim
redress by diplomatic or other means which was made by every state when it entered into
an equal federation with other states. He lays down in express terms the principle which
Judge Shipman used as the basis of his judgment in the case I cited yesterday from 22
Blatchford, 131, that is to say, if a state passes a law the effect of which is to injure the
territory or property of persons outside the state-that may not be the intention, but if the
direct effect is to inflict injury upon the territory or property of citizens in another state-
then that law, although in so far as it only affects citizens within the state that passes it, it is
intra vires of the Constitution, it becomes ultra vires in so far as it inflicts injury on the
inhabitants of another state. That, I believe, was the intention, although I feel some
diffidence in insisting upon it. This was the view which formed the basis of the judgment
of Mr. Justice Shipman.
[start page 671]
The state of Connecticut had authorized certain works which injured property in the
adjoining state of Massachusetts, and it was held that that was a matter in which the
Federal Court, in the interests of the Federation, was entitled to exercise jurisdiction.
Mr. ISAACS.-Every text-book writer ignores that case; I cannot find it anywhere.
Mr. WISE.-The object of this was by no means to deal with a set of circumstances such
as have arisen in the United States, which could not have arisen here, but to deal with other
matters; and it seems to me that the clause as it stands would be a powerful instrument to
prevent an abuse of powers by a state, not for the purpose of injuring the citizens of that
state, but for the purpose of injuring the citizens of other states.
Mr. ISAACS.-Can you give a concrete case?
Mr. WISE.-Well, take the case of imposing a poll tax on citizens passing from one state
to another. Such a law as that would at present be within the competency of the legislation
of any colony.
Mr. SYMON.-Not if this Constitution becomes law.
Mr. WISE.-It might be dealt with by another clause, and would also be dealt with by this
clause 110. I am not dealing now with the latter part of the clause, because I admit that that
is open to other objections. I am confining my attention to the first portion. The instance I
have given is of course an extreme one, but it is such cases as that which, according to my
recollection, it was intended should be dealt with by the first portion of this clause. I very
much regret that Mr. Clark's memorandum is not in the hands of honorable members,
because it deals with the first part of this clause and shows what importance Mr. Clark
attaches to it as one of the draftsmen of the Bill of 1891.
Mr. ISAACS.-How would the entry into one state by a citizen of another state be an
immunity or a privilege of that citizen?
Page 263
Mr. WISE.-Let me give another illustration. Suppose an extra probate duty were
imposed on Victorians who had property in New South Wales, or vice versa.
Mr. REID.-Or an absentee tax.
Mr. WISE.-Yes, or an absentee tax.
Mr. SYMON.-It would be competent for the states to do that.
Mr. WISE.-No; I mean an absentee tax making those who reside in one part of the
Union pay higher-say pay a higher probate duty or legacy duty-than those who reside
within the state imposing the tax.
Mr. ISAACS.-How could that be a privilege or immunity of the citizens of the other
states?
Mr. WISE.-It would be putting an exceptional disability upon the citizens of another
state, to which the citizens of the state imposing the tax were not subject.
Mr. ISAACS.-But how is it a privilege or immunity of the citizens of another state that
they should not be taxed as absentees by a particular state?
Mr. WISE.-It is an immunity at present.
Mr. ISAACS.-Then you can never tax a man living in another state?
Mr. WISE.-You cannot impose exceptional treatment upon the citizens of another
state; that applies to everything. It is difficult to contemplate a concrete case, but that the
words themselves have a definite and clear meaning any one can see; and whether that
clear power should be taken away or not is a matter of very serious consideration. It does
appear to me that this clause is a powerful instrument in the hands of the federal authority
to prevent any state acting in an overt manner, permitting overt acts of hostility against
citizens outside its jurisdiction. For that reason I hope that the clause will be allowed to
stand.
Mr. HOLDER (South Australia).-I beg to move-
That the following new clause stand, part of the Bill:-In the event of any law passed by
the Federal Parliament being declared by any decision of the High Court to be ultra vires
of this Constitution the Executive may, upon the adoption by absolute majorities in both
Houses of the Legislature, within six months after the decision of the High Court, of [start
page 1718] resolution thereto directing, refer the law to the electors under section 121, and
if approved as therein provided the Constitution shall be deemed to have been enlarged,
and the law shall be conclusively deemed to have been intra vires of this Constitution from
the passing thereof.
In the opinion of our constituents, or of a great many of them, one grave objection to this
Constitution is that over everything is the High Court. In the opinion of many, the legal
formulae and legal proceedings usurp in this Constitution the place which the people have
Page 264
occupied in the state Constitutions. If we accept the Constitution, the final appeal will be,
not to the people as represented by the Parliaments, but to the High Court. I admit freely
that as the Constitution is a deed of partnership, it is absolutely necessary to have the High
Court to interpret it, and to see that the various co-partners keep in all that they do within
the four comers of the deed to which they have agreed. At the same time, so rooted is the
objection to the position which law occupies in this Constitution that it will be well if we
can meet that objection in any way by placing in the hands of the people the final appeal, at
least in some cases where the final appeal would otherwise be to the High Court. I do not
need to quote from many opinions of others to support what I have said as to the general
view that federation means a great deal of law. I noticed in the daily papers in this city a
few days ago a report of an address by Professor Harrison Moore, the professor of law at
the Melbourne University, in which he said that the legal profession had not had very much
to do of late, but that under the Federal Constitution now under consideration the lawyers
would have plenty of work. I do not take that comment as coming from one who is hostile
to federation, but simply regard it as the expression of Professor Harrison Moore's
deliberate opinion that federation under this scheme would mean any amount of work for
the lawyers. That is just what the people do not want, and if we can by any means lessen
the law work and place the final decision of some matters in the hands of the people, from
that point of view we shall do well. I can quite conceive that again and again the Federal
Parliament might pass laws involving comparatively small extensions of the Constitution
as we have it before us, but yet involving such amendments as, if the people were appealed
to, they would certainly indorse-amendments not of sufficient weight and importance to be
submitted to the people for their endorsement unless the laws in question were challenged.
Therefore, in this amendment I propose that in the event of any law passed by the Federal
Parliament being declared by the court to be ultra vires, then the Federal Parliament may,
by an absolute majority of both Houses of the Legislature, within six months of the adverse
decision of the court, submit the matter to the electors for a referendum in the same way as
provided in the clause dealing with ordinary amendments of the Constitution. We have
deliberately decided previously that the Constitution should only be amended by direct
appeal to the electors, in which the vote shall be counted in two ways. I do not propose to
alter that provision in the slightest degree. We have provided that measures altering the
Constitution shall only come into force after they have been carried by absolute majorities
of both Houses. I include the same provision in this clause. Before a matter can be sent to
the referendum, both Houses must by absolute majorities agree thereto.
Mr. HIGGINS.-If so, how do you improve the position by this clause?
Mr. HOLDER.-The honorable member asks me what effect my clause would have. I
will suggest a case. Suppose that it is desired to effect an alteration in the Constitution. The
steps necessary for that now would be to introduce into the Federal Parliament a Bill to
amend the Constitution. That Bill must go through [start page 1719] its various stages, be
passed by absolute majorities in both Houses, and must then go to a referendum of the
people. But suppose that without any knowledge on the part of the Parliament that that
would be the case the major portion of the Bill was found to be outside the limits of the
Constitution, and that it was held to be ultra vires. Honorable members will begin to see
what this clause would achieve in that event. Supposing in this case the Bill had been
passed without any belief by the Federal Parliament that the provisions were ultra vires of
the Constitution, and some months afterwards the courts were petitioned to exercise
jurisdiction, and pronounced the measure ultra vires; if, then, the Constitution had to be
amended in the ordinary way, it would follow that, after the Bill had been passed, after
some steps might have been taken under it, after it had been pronounced ultra vires, the
Page 265
whole matter would have to be begun again at the very beginning. You would have once
more to introduce a measure to Parliament, to pass it through all its stages, to take a vote of
the people, so that all your work has to be done again, whereas under my clause the
procedure would be this: The court pronounces the Bill ultra vires; at once, or at anytime
within six months thereafter, the two Houses of the Legislature are asked to pass addresses,
if they consider it important enough, and think it right to do so, and all the time that would
otherwise be spent in passing a new measure through Parliament is saved, because the
carrying of the two resolutions would not take nearly so long as the passing of an Act of
Parliament. And then this provision comes in. If on the referendum the majority of the
states and of the people approve-
The Constitution shall be deemed to have been enlarged, and the law shall be conclusively
deemed to have been intra vires of this Constitution from the passing thereof.
Mr. GLYNN.-Is not that putting matter of legislation in the Constitution?
Mr. HOLDER.-No, I do not contemplate for a moment putting any legislative matter in
the Constitution.
Mr. GLYNN.-That is what its effect will be.
Mr. HOLDER.-I do not see how that result could come about.
Mr. ISAACS.-This makes it retrospective altogether.
Mr. HOLDER.-I will answer that interjection, which certainly has great weight.
Mr. OCONNOR.-Will the honorable member answer this question: Supposing a law is
affirmed by this process, and afterwards another law involving the same question is
proposed, is that also made good, or must there be a referendum for that?
Mr. HOLDER.-I have two interjections to answer. I will deal first with that of the
Attorney-General of Victoria. In reply to his statement that this makes the law altogether
retrospective, I simply say that the proposal is to make the law retrospective in this sense:
That during the interval throughout which it was, according to the judgment of the court,
ultra vires, the decision of the people afterwards could make it intra vires.
Mr. ISAACS.-That might make persons criminals who were not otherwise
criminals. It might not have been an offence to do a certain thing if the High Court
declared the law to be ultra vires, but if that law was made intra vires from an
antecedent date, all the persons who did that thing might be subject to punishment.
Mr. HOLDER.-I have great respect for the eminent legal authority of the Attorney-
General of Victoria, and he may help me to overcome that difficulty, and attain the
advantage I seek to attain. Mr. O'Connor asks me, if this were adopted, and under a certain
referendum a certain Bill was declared to be intra vires, whether that position would cover
any similar Bill adopted afterwards? My answer to that is this. I wish it [start page 1720]
should do so, that the enlargement of the Constitution should be not merely for the
inclusion of the particular measure which had been passed, but for the inclusion of the
particular matter concerning which otherwise that Bill had been, but for the referendum,
ultra vires. I do not profess to be a draftsman, and I gather that the Drafting Committee
Page 266
have been kind enough to undertake-especially for lay members-to put into proper
phraseology any resolutions which the Convention has by a majority declared to embody
principles which they wish to have included in the Bill. So I am content, if the Convention
adopts my proposition as being an indication of its will, to leave the wording of the clause
as it shall appear finally entirely in the hands of the Drafting Committee, and shall be very
glad of any help they can give to suggest a method of covering what the honorable member
has suggested, so that my intentions my be fully met. do feel that in any question where the
point of the law ultra vires is raised, not the High Court but the people ought to be the final
appeal-that if I or any one else is on the other side of this controversy concerning a
measure, and I take the ground that it is ultra vires or that it is not, the final appeal
concerning what the Federal Parliament may do ought not to rest with the High Court,
which can simply determine it on the dry question of law, but ought to rest with those
people who, themselves, have the right to say whether or not the Constitution shall be
enlarged to take in the particular question at issue. I do not hesitate to affirm that, if we can
place this final appeal in the hands of the people instead of keeping it in the hands of the
High Court, we will have done very much indeed to popularize this measure, not only in
South Australia, but in other colonies. For I do assure honorable members that the presence
of so large a number of lawyers as there are in this Convention has helped to give colour to
the suggestion, which is very widely prevalent, that this Constitution is being made for the
lawyers and for the courts.
Mr. SYMON.-Nonsense!
Mr. GLYNN.-That is pandering to the popular cry.
Mr. BARTON.-I think my honorable friend ought to do his best to dispel any such base
slander as that.
Mr. HOLDER.-I can assure my honorable friend that I will do my best to dispel any
such base slander as that. I am not stating a matter in which I express my own thought or
my own feeling, but I repeat that in what I said just now I am expressing the thought and
the feeling of a great many persons outside the Convention who are not so well informed as
we are. If we can remove a misapprehension, if we can cure a ground of distrust, by
making the people themselves the final arbiters in their own cause, we shall surely be doing
well, and by doing that we will not be endorsing, but will be going the very best way
possible to refuse an indorsement to that opinion which was dissented from just now.
Sir EDWARD BRADDON.-Why not make them the first arbiters, too?
Mr. SYMON.-Why not make them the High Court at once?
Mr. HOLDER.-I have already shown that the adoption of my clause would save a large
amount of time. It is quite impossible that the people can sit as Judges, because the
function of Judges is one thing, and the function of electors of the Commonwealth is quite
another thing. I am not confounding these two. The people are absolutely incompetent to
judge whether a certain law is or is not ultra vires, and I would not dream of committing
that charge to the people, for there are no persons less fit than the general electors-taken all
together on a referendum-of any country to decide whether this or that is true law.
Mr. ISAACS.-You say the people accept the position in law; but they are asked whether
they will change the Constitution.
Page 267
[start page 1721]
Mr. HOLDER.-That is exactly it. I would never dream of asking the people to reverse a
legal decision arrived at by the High Court. I have been specially careful in the form of the
amendment to avoid any such thing. I do not dream that the High Court will on one day say
that a certain Bill is ultra vires, and that the people shall the day after, or some months
after, say the court was wrong. That is not what I suggest. I suggest that the people should
accept the decision of the High Court that the law was ultra vires, but should say it ought
not to be ultra vires-that the Constitution should be enlarged so that such a decision could
not be given again. I do not wish to leave it to the people to say that the decision was
wrong, but to leave them to say that the Constitution should be so enlarged so as to-make
such a decision impossible in the future. That is a different thing from making the people
Judges or giving them a judicial position. I really feel very hopeless as a layman addressing
the Convention on a very technical legal point like this. I quite anticipate-and though this is
not a wise thing to say, I do not mind saying it-I quite anticipate defeat before I sit down.
At the same time, I shall not cease to regret defeat if it comes, nor shall I cease to believe
that this way out, or some other which the Drafting Committee could easily suggest, ought
to be adopted, so as to avoid the possibility of anybody outside saying, with any
appearance of truth, that this is a lawyer-written Constitution. I want to move the motion in
a slightly different form. I want to leave out the word "High" before "Court" in each case,
so that the word "court" only shall stand. I mean that word to cover not merely the decision
of the High Court, but the decision of the last court of appeal from the High Court, if that
appeal be made. With that alteration, I move the amendment standing in my name.
Mr. BARTON (New South Wales).-I move that progress be reported. I wish to make a
statement without discussing the question. I should like honorable members not to go away
when progress is reported, because I wish to get an order for the printing of the Bill with
the amendments so far, and for the Drafting Committee's amendments to be embodied pro
forma in the Bill. In order to do that the standing orders will have to be suspended, and that
requires the attendance of a majority of the House.
Mr. DOBSON (Tasmania).-Would it not be better for the leader of the Convention (Mr.
Barton) to answer the arguments of Mr. Holder, and let a division be taken? If we do not
take a division tonight we shall occupy the whole of tomorrow in discussing this question,
which includes that of the High Court, the referendum, and deadlocks.
Mr. BARTON.-After the opinion some persons outside seem to hold about lawyers, I
shall leave the discussion of this matter to the laymen.
The motion was agreed to.
Progress was then reported.
The standing orders having been suspended,
COMMONWEALTH OF AUSTRALIA BILL.

Page 268
The Convention then resolved itself into committee of the whole for the further
consideration of the Commonwealth of Australia Bill.
Discussion (adjourned from the previous day) was resumed on Mr. Holder's proposed
new clause (see pages 1717-18).
Mr. SYMON (South Australia).-My honorable friend (Mr. Holder) began his speech by
indicating that he was moved to submit his new clause by three considerations. One was
that there was the grave objection entertained by many people to the Constitution we are
framing that over all was the influence of the High Court. Now, I am not sure that that
represents accurately anything in the nature of an objection that is entertained by people in
any of the colonies. On the contrary, it seems to me that, instead of there being-at least
amongst a section-a feeling that the Constitution is overspread by the High Court, or any of
the courts, there is a desire that we should still further multiply the courts which are to
concern themselves with this Constitution, and the institutions to be established by it, for,
instead of having enough courts, we are to have one more-the Privy Council-by way of
appeal from the Federal High Court, which, my honorable friend thinks, overspreads this
Constitution. My honorable friend said that there would be necessarily a great many
questions of law in connexion with the working of this Constitution, and he referred, in
support [start page 1724] of that statement, to some expressions made use of by Professor
Harrison Moore, with regard to the employment which would thereby be found for the
lawyers. My honorable friend having stated that, proceeded to move his amendment, which
will not in any possible particular lessen the evils (if they are evils) to which he called
attention. He proposes, under this amendment, that every question in relation to the
validity of laws, either of the state or of the Commonwealth-those laws having first
passed through the crucible of investigation by the High Court-shall, by the cumbrous
and expensive method of seeking to get rid of the decision which may have been
pronounced by the tribunal appointed under the Constitution, be submitted to a
referendum of the people.
Sir JOHN DOWNER.-Laws altering the Constitution.
Mr. SYMON.-First of all, I take leave to deny that any body of people in Australia,
whose voice is entitled to any weight, will so misunderstand the position of the High Court
in this Constitution, in relation to questions of ultra vires, as to think that, instead of being
an advantage, it will be a positive disadvantage to them when the union is consummated.
The High Court is really and most properly appreciated and understood as being the
guardian of the interests of the states as well as of the interests of the Commonwealth;
as the protector of the freedom of citizens as well as of the rights of the states. They
understand that it might be possible, but for the intervention of the High Court, for
the Commonwealth to pass laws that interfered with the rights and with the integrity
of the states constituting the Commonwealth, and that it might also be possible, on the
other hand, for the states to pass laws which would to a certain extent infringe upon
the rights of the Commonwealth. The High Court is to occupy the position of arbiter
between the two-it is to be the daysman that is to go between the states on the one hand,
and the Commonwealth on the other. It is for that purpose that the High Court has been
established. If there is too wide a power in regard to disputes upon questions of
encroachment under legislation, if it is considered that the High Court might frustrate the
object of the Constitution, then the remedy is not to increase the expense in remedying the
difficulty, but to sweep away the High Court altogether, and to say that we will rest content
with some other method of adjusting the differences between the constituent parts of the
Page 269
body politic of the Commonwealth. Now, sir, my honorable friend's amendment only needs
to be examined by the light of what we have already provided in the Bill in order to secure
its prompt rejection. My honorable friend put it that he did not wish this amendment to
establish a court of appeal in the ordinary sense in regard to decisions of the High Court.
But it must amount to one of two things. This reference to the mass of the people must be
either in the nature of a court of appeal from the decisions of the High Court, or simply an
alternative method of amending the Constitution by authorizing what has been called in
question.
Mr. HOLDER.-That is what it is.
Mr. SYMON.-My honorable friend accepts the latter description. Now, sir, of course in
either case it means an expenditure. This referendum-which as proposed here is a kind of
lop-sided referendum, as I shall show in a minute-means an expenditure, superadded to all
the cost and delay of litigation, of £30,000 or £40,000 or £50,000, which a referendum to
the people of the Commonwealth is estimated to cost.
Mr. HOLDER.-And which any alteration of the Constitution must cost.
Mr. SYMON.-I will come to that in a minute. I shall not overlook that consideration. If
this referendum is to be in the nature of a court of appeal, the proposal will be constituting
the people-the [start page 1725] mass of the people-a court of appeal against the decision of
the tribunal which they themselves had constituted.
Mr. HOLDER.-That is absurd; you are setting up a man of straw in order to knock it
down.
Mr. SYMON.-My honorable friend's whole proposal is a man of straw, and I am

endeavouring to treat it as such, in order that the slightest wind may knock it over. We
know that the same difficulty arose in Switzerland, where it was sought to constitute the
Federal Assembly a court of appeal from the decision of the High Court. For some years-
between 1848 and 1875-the experiment was tried, but it was found to work so
detrimentally to the best interests of the people of Switzerland that they repealed it, and
placed the High Court of Switzerland above political influence, and above the control of
what was a political tribunal.
Mr. HOLDER.-Hear, hear.
Mr. SYMON.-Of course, I know that my honorable friend assents to that. I know that he
would not be so lost to every sense of propriety as to suggest that there should be an appeal
from the High Court to the Federal Parliament, or to any state Parliament in regard to a
state law; but I am pointing out that some honorable members may not take the view my
honorable friend takes as to the amendment of the Constitution, and they may be prepared
to take the view that it will be well to have some other tribunals body introduced with a
view of controlling the decisions of the High Court in matters considered to be matters of
public policy. Therefore, I do not point out the case of Switzerland because my honorable
friend thinks we could do the same here, because such a step would be abhorrent under our
Constitution. The next point is that this is an amendment to secure an amendment of the
Constitution in case the Federal High Court, which is the body in whom we repose the
custody and care of our liberty from all kinds of legislative and executive encroachments,
decides, in regard to a particular law of the Commonwealth, that it is ultra vires. If the
Page 270
question is of sufficient importance to warrant an amendment of the Constitution, let the
Constitution be amended under the provision of clause 121 in the ordinary constitutional
way. Why not? But if the matter be not of sufficient importance, why are we to be put to
the enormous expense of from £30,000 to £50,000 for a referendum on some matter which
is of not sufficient importance for it to be proceeded with in the ordinary way? Then my
honorable friend-of course being driven to find some reason why we should adopt this
method rather than the method we have all agreed to up till now under clause 121-says
there would be a saving of time. Now, what would be that saving of time? Under this
provision, should the High Court decide that a particular law is ultra vires, my honorable
friend proposes that the Executive Government should be able to come down to the Federal
Parliament with a resolution, which has to be carried by absolute majorities in both Houses,
in exactly the same way as a Bill which might be introduced under the clause providing for
amendments in the Constitution. The only time that would be saved would be any possible
diminution of time involved in the difference between carrying these resolutions and
carrying a Bill directed as far as possible to the same object. The saving of time would be a
mere bagatelle. Is it worth while purchasing that saving by disorganizing the whole of our
method-cumbrous as some think it is-of amending the Constitution? The game is not worth
the candle. It is not worth considering for a moment, seeing that the method prescribed in
this amendment is absolutely identical with the method provided in regard to ordinary
amendments of the Constitution.
Mr. HOLDER.-Purposely identical.
Mr. SYMON.-Then what is the use of debating it? This amendment may be described as
another means of spending [start page 1726] £30,000 or £50,000 on a referendum, without
the safeguards which should be essential in every possible proposal for amendment of the
Constitution, in a debate upon the different stages of the Bill. The machinery we have got
with regard to amendments of the Constitution would be as effectual and more satisfactory
than what is proposed in this amendment. I agree that if this means anything it means
neither more nor less than an amendment of the Constitution. Mr. O'Connor, in a very
pregnant interjection made in the course of Mr. Holder's speech yesterday, said-"How
would you deal with the case of a Bill going in substantially the same direction and dealing
with the same subject-matter?" Mr. Holder replied that he would leave it with the Drafting
Committee to frame a provision to deal with cases of that kind. But the objection entirely
dissolves the whole ground on which the honorable member bases his amendment, because
it would have the effect, as I think Mr. Glynn interjected, of introducing into the
Constitution the legislation which was called in question by the Federal High Court.
Mr. LEAKE.-It is also retrospective in its effect.
Mr. SYMON.-That is the point I was coming to, and I am much obliged to the honorable
member for calling my attention to it. But I do not wish to elaborate the point, because it
must be seen that the proposal has that vice. In addition to that, what does my honorable
friend (Mr. Holder) do? We all of us have the interests of the states at heart; but my
honorable friend leaves the state law to be declared ultra vires. Under this proposal you are
to protect the laws of the Commonwealth in an extraordinary and burdensome way, but not
the state laws, which the High Court may declare to be ultra vires. Why should not the
people of the states have a similar power of saying that their law is perfectly good, and that
they want it? That is what I meant by saying that this is a lop-sided arrangement. If you
want to amend the Constitution, amend it; but if you are dealing simply with a law declared
to be ultra vires, then I say that the states should be treated equally with the
Page 271
Commonwealth, and it should be open to their particular citizens to say whether or not
they approve of the proposed alteration of the law. But you would introduce the greatest
complication into the Constitution by doing anything of the kind. An amendment of the
Constitution is a matter of grave importance, and to say that a Commonwealth law declared
to be ultra vires by the High Court is to be placed in a different position, and is to be
treated in a special way, in which a law of a state declared to be ultra vires is not treated, is
grossly unfair. You must, to be just, deal with both the states and the Commonwealth upon
the same method in regard to alterations of the Constitution.
Mr. HOLDER.-Will you support me if I put that in?
Mr. SYMON.-My honorable friend should not ask me to support such a proposition as
that, because he knows that I would do nothing of the kind; but I say that if his proposal is
to be adopted with regard to the laws of the Commonwealth, it is unjust that the states
should not be treated in the same way. I say that the states and the Commonwealth should
have the same advantage in this respect.
Sir JOHN DOWNER.-And why confine it only to questions of ultra vires?
Mr. SYMON.-Exactly. Why not say, that all laws of the Commonwealth shall be valid in
all respects, and that all laws of the states should also be valid? Then we should get into a
nice pickle. If a law is of vital and serious consequence to the Commonwealth, and is
declared to be ultra vires by the High Court, there is under the Bill an appeal to the people,
by means of the provision for amending the Constitution. Let that appeal be made, and let
the Constitution be amended; but do not let us introduce, a further [start page 1727]
opening for expense, and also for injustice, by an inefficient means of really amending the
Constitution, but which at the same time will leave unredressed the grievances which may
exist on the part of the state. I therefore hope that this amendment will be rejected as
altogether unnecessary, and as cumbrous and expensive; and as not even having the colour
of bringing about the redress of difficulties, which my honorable friend stated at the outset,
because the provision is not one which will have the effect of diminishing the possibilities
of litigation under this Constitution. No one more deeply sympathizes with the object of
the clause than I do, but some more effectual way must be devised to deal with this
question. This, instead of being an improvement, will be a distinct blemish on the
Constitution we have to frame.
Mr. ISAACS (Victoria).-I agree with Mr. Symon that there are difficulties raised which
are almost insuperable against the clause as it stands. There is not a single point in which
more facility is given for amendment of the Constitution than already exists in the Bill.
You want under this clause, as you want under the 121st clause, an absolute majority of
both Houses. You also want a majority of the states voting, and a majority of the people
voting.
Mr. BARTON.-An absolute majority of both Houses directing a referendum, not for
passing a law.
Mr. ISAACS.-But they have already passed a law, and I take it that if you can get an
absolute majority of both Houses directing the referendum, there is no practical difference
between that and an absolute majority again passing the law. Because they virtually passed
the law as far as they could. Therefore, it seems to me there is no advantage gained from
the stand-point of desiring a better means of getting an amendment of the Constitution.
Page 272
Then, I feet that it is open to the destructive criticism that it makes the law retrospective,
and after the court, possibly the Privy Council, has decided that the law is ultra vires, and
people have acted on that decision, being compelled to, act on that decision, or being
compelled to refrain from acting on the decision of the court, as the law is positive or
negative; then we should have under this referendum a law made operative as from the
time of its original passing, and penalties, both personal and pecuniary, might be incurred
through no fault of the individuals who had incurred them. That seems to me to be a defect
to which we cannot close our eyes.
Mr. WISE.-Besides, it would punish everybody who took the advice of a man who
interpreted the law properly.
Mr. ISAACS.-It compels everybody who has obeyed the decision of the higher courts to
act, or refrain from acting. That is a position which none of us would willingly get into,
and the retrospective action is wrong. I quite sympathize with the moving spirit that
actuated Mr. Holder, because I feel, as I said before, that our means of amending the
Constitution are lamentably defective. It is an attempt by Mr. Holder to prevent the strict
interpretation of the law from running counter to public opinion, even public opinion which
may be definitely expressed by means of a referendum. Complaints have been made, as we
know, in America that the Supreme Court is master of the Constitution; that there is no
appeal from it, and that the means of amending the Constitution to get rid of any particular
decision, which time and circumstances have made utterly contrary to the feelings of the
nation, are practically irremediable. I should say, in reference to the so-called safety-valve
that has been provided in America, even that one stigmatized as being only tolerable
because it avoids a worse state of affairs, namely, swamping the Supreme Court, is a mode
which I find Mr. Dicey refers to and does not reprove. In the last edition of his work on the
Constitution, 1897, pages 166 and 167, he actually points out without disapproval, and, in
fact, with [start page 1728] a certain amount of approbation, the possibility of appointing
more Judges to the Supreme Court; the new Judges being, as he says, lawyers who share
the convictions of the ruling party. When we see that state of things referred to in such
terms by so eminent and impartial a writer as Mr. Dicey, we must not lightly treat the
considerations brought forward by Mr. Holder and dismiss them from our minds. I agree
that the mode he suggests is one which we can hardly follow. If it were proposed that a law
passed by both Houses, and thus expressing what is desired by public opinion-and by some
strict construction of the Constitution that desired end has been found impracticable-and
that, both Houses having agreed to that law, it should be competent for the Executive, upon
an absolute majority of either House, to send it to a referendum of the states and the people,
I could understand that a better remedy was provided, because you would have the states
protected on the original vote passing the Bill, and again in the referendum. If that course
were adopted, I think this clause could be framed so as to give us a better position than we,
have under the Bill. But if we agree in the first instance that both Houses should pass the
Bill, as we must, and then require both the Houses to refer the Bill to the people and the
states, who are to pass it, we shall not get one bit further than what we have got under the
121st clause. Unless the honorable member is willing to amend his clause in that respect,
we should only complicate matters, and if retrospective operation were given to it we
should be lending ourselves to what would be, quite unintentionally on the part of the
honorable member, a gross injustice.
Mr. BARTON.-What is the honorable member's suggestion?

Page 273
Mr. ISAACS.-The adoption by an absolute majority in either House of Legislature,
instead of by both Houses. It presupposes both Houses have passed the Act; that the Act is
declared to be invalid; that subsequently public opinion has been found to be of such a
nature as to press for an adoption of such a law, and it is impracticable, because the
Constitution does not admit of it. Then either House must pass by an absolute majority a
resolution, and the Executive must refer the law to a dual referendum of the states and the
people. A double protection would be given, and that would ease the minds of a great many
people, not only in this colony, but, I dare say, in New South Wales, as to the question of
an amendment of the Constitution. It does not touch the question of deadlocks in ordinary
legislation, but only the amendment of the Constitution, and would go far to pave the way
for a better understanding on the subject than we now possess.
The CHAIRMAN.-I may shorten the debate if I point out that the amendment suggested
by Mr. Isaacs would be tantamount to an alteration of the decision already arrived at in
clause 121. In that clause it is decided that majorities of both Houses are necessary to alter
the Constitution. If Mr. Isaacs' amendment were carried it would negative that proposition,
and I do not think we can do that at this stage.
Mr. ISAACS.-I should like to mention one consideration which has not perhaps occurred
to your mind. I understood the decision was that, if the two Houses came into conflict, the
question should be referred on a motion passed by absolute majorities of both Houses. But
this is not a question of conflict between the two Houses, but where the two Houses have
agreed, and the Supreme Court has said that it is outside the Constitution. That seems to me
a totally different question, when the two Houses may not be in conflict, but either House
may pass this resolution, and then the Executive can refer it. I think that is a great
distinction.
The CHAIRMAN.-I would point out that clause 121 says that the provisions [start
page 1729] of the Constitution shall not be altered except in the manner following-
that is, by an absolute majority of the Senate and of the House of Representatives.
That seems to me to be conclusive.
Mr. BARTON (New South Wales).-I share in the objections which so many honorable
members have offered to this clause. I certainly hope that I shall not be taken to be
speaking simply as a lawyer, and with a desire that this Constitution should be under the
law and lawyers, when I express my objections to it. I agree with what has been said to the
effect-although there is a great weight to be attached to Mr. Holder's argument-that the
clause will operate as an appeal from the High Court to a popular authority-an appeal to an
authority which, at any rate, is not a competent authority on a question of law. As to the
question of making a law, the people ultimately are no doubt the best authority, but on the
question as to the reading of a law they can scarcely be the best authority. There is a
difficulty in this clause which also presents itself to me-that is, it works only one way.
Where a law has been decided by the High Court to be ultra vires, by this appeal to
the people it may be decided to be intra vires of the Constitution from the beginning.
Take the case of a law which the High Court decides to be within the Constitution, and
which the people have a very strong opinion is outside the bounds of the Constitution, and
that the court has been wrong there. Now, if it is right to make a clause of this kind operate
for the purposes of appeal in the one case, it is equally right to make it operate for the
purposes of appeal in the other.

Page 274
Mr. ISAACS.-That is not necessary. The people have it in their power to repeal an Act if
they do not like it.
Mr. BARTON.-In this case the object is to enable the people to make valid that which
under the Constitution is invalid. If you make the clause work one way, what reason is
there for not making it work the other? With reference to the general effects of the clause,
it seems to be clear that where the High Court has wrongly decided a matter to be
intra vires of the Constitution, you provide no sort of way of dealing with it excepting by
repeal. It may be that repeal is the easiest method. This amendment is intended to get rid of
the decision of the High Court, which may be perfectly correct in law. I do not think that is
a course which will commend itself to our general sense and experience as being desirable.
I know that we are providing for new conditions, and there is weight to attach to every
argument which relies upon the novelty of these conditions. But still I do not think that this
is a course which should commend itself. If you take the case of any decision of the High
Court that a law is ultra vires-and the position would be worse if Mr. Isaacs' amendment
were adopted-having got that decision from the authority you yourselves have set up as the
ultimate arbiter, within your own bounds at any rate, on questions of constitutional law,
you then say that the finding of that tribunal may be rendered nugatory just as the
Executive, having a majority in Parliament, may choose by submitting it to the people. It
may be assumed that the Executive will feel the popular pulse before they do it. The
conclusion then is, that you deliberately weaken that will be the effect, although it may, not
be the intention-the authority of that tribunal. Would not such a provision operate very
badly? I quite see that the Hon. Mr. Holder has not submitted his clause with the view of
taking the appeal from the High Court to the people on a matter of law. All I am arguing is,
that the effect of the clause would be the same as if he had done so. There is not much
difference between saying, as is said in this clause, that when the High Court has decided a
matter to be ultra vires you may remit it to the people, who may determine that it is within
the powers of the Constitution, which would be a reversal in one sense of the decision of
the High [start page 1730] Court, and saying boldly, and at once, that if the High Court
declares the law to be ultra vires the people may decide that it is intra vires.
Mr. SYMON.-It is a matter of form.
Mr. BARTON.-Yes, the difference between these two procedures is simply a matter of
form. In the clause the words are used "and the law shall be conclusively deemed to have
been intra vires of this Constitution from the passing thereof." The peculiarity of this part
of the clause is very striking, because the words I have read follow these words-"and if
approved as therein provided the Constitution shall be deemed to have been enlarged." If
the Constitution is to have been deemed to have been enlarged for that contingency it is
only because the law was ultra vires. If you carry that further and say that it is intra vires,
what do you want with any enlargement? It is quite inconsistent. It amounts to saying that
the Constitution has been enlarged, and that is only necessary if the law was ultra vires.
And yet it is followed by the words-"and the law shall be conclusively deemed to have
been intra vires," which is to decide that the High Court was not right but wrong.
Mr. KINGSTON.-That is like the passing of a Validating Act.
Mr. BARTON.-No; a Validating Act does not put things in that way, and I say that that
is an objection of more than form. When you say that the Constitution shall have been
deemed to have been enlarged, you decide that the Constitution requires amendment in that
particular, but when you say that the law shall be conclusively deemed, to have been intra
Page 275
vires from the passing thereof, then you decide that the Constitution does not require
amendment. There is very considerable not only ambiguity, but contradiction in the
proposal. What are we asked to authorize the people to do-to decide that the High Court
was right? In which case their decision could only have effect if it operate as an
enlargement, or to decide that the High Court is wrong, in which case the Constitution is
sufficient from the beginning. We ought to know which road we are to take before we vote
on the clause. It seems tome that the objection there is a strong one, and that it requires
some answer. I shall not now repeat the arguments adduced by other honorable members
against the clause. That is unnecessary. But I do say that I have not been at all convinced
that it is our duty to adopt the clause.
Mr. ISAACS.-There is one additional difficulty, which my honorable friend (Dr. Quick)
has suggested. The Constitution would be deemed to be enlarged by the passing of a law,
but if you wanted to alter or amend it you could not do so.
Mr. HOLDER.-That is the point Mr. O'Connor mentioned last night.
Mr. BARTON.-That is to say that, the law having been passed, and the Constitution
having been enlarged, the Constitution has been amended.
Mr. ISAACS.-That is all. You could not alter a word of it.
Mr. BARTON.-No, you would have to take the question of whether the Constitution
was really amended or enlarged; but the decision might mean that the Constitution did not
require enlargement at all.
Mr. HOLDER (South Australia).-I will deal with the speeches in the order in which they
were given. I note that, although the Hon. Mr. Symon said that the matter was not worthy
of a moment's consideration, he proceeded to talk for about half-an-hour about it, and his
speech consisted mainly in setting up bogies that were not in the amendment, and knocking
them down again after they had sufficiently frightened the Convention. I need say no more
about these bogies, because they were not present in my mind, and they do not appear in
the amendment. I am obliged to the Hon. Mr. Isaacs for the speech he delivered, which
shows that the feeling of which I have a [start page 1731] knowledge is also within his
knowledge the feeling that the Constitution we are framing is somewhat too rigid, that the
modes of amendment are few and difficult, and that greater ease of expression of the
popular will would be an advantage. I am pleased to have the recognition which the
honorable and learned member gives of the fact that these views are not confined to South
Australia. As to the particular points raised both by Mr. Isaacs and the Hon. Mr. Barton, I
want to say this: That what is contemplated is actually an amendment of the Constitution. It
is not intended to be an amendment by a side-wind, but an amendment with all the
necessary delay and all the necessary expense which it is contemplated any such
amendment should involve. I did not imagine for a moment that I was going to make a
short cut to any amendment of the Constitution by which damage might be done to either
state or national interests. I think that I have duly safeguarded both state and national
interests, while providing a speedier method of altering the Constitution. So far as the
objection raised by the Hon. Mr. Barton on the matter of a law being declared ultra vires is
concerned, there is no idea of submitting to the popular verdict any legal decision of the
High Court or of any court. When the Parliament determines under this clause to refer any
matter to the people they accept the verdict of the court as being true and right. If they do
not accept it their course will not be to refer it to the people, but to send it to a court of
Page 276
appeal. The fact that they do refer it to the people shows that they recognise that the matter
was outside the powers of the Federal Parliament, and that they seek to have those powers
enlarged. The form of words adopted means this-that the enlargement of the Constitution is
to be somewhat dated back. It is to be retrospective, not in the sense of a challenge, but
rather the reverse, of the decision of the court. The enlargement of the powers is made
retrospective cover the particular question at issue. With regard to the last point mentioned
by Mr. Isaacs, on the suggestion of Dr. Quick, I referred to it yesterday evening when
replying to an interjection from the Hon. Mr. O'Connor. I can conceive of almost no case
where the enlargement of the Constitution would not be sufficiently clear and definite in its
outline to enable anything to be done which might be required in the future. I will take a
case as illustrating the general trend of the amendment. Supposing such a case occurs as
occurred recently in the United States, and that an Income Tax Bill is passed by the Federal
Parliament. It is discovered-though I do not think it could be under our Constitution, I am
merely discussing it as an illustration-that the Federal Parliament has exceeded its powers.
The High Court or some other competent court rules to that effect. The conviction of the
Federal Parliament is that the people intended that they should have this power, and that it
is owing to an oversight or to a technical defect in the law that they have not the power.
Now, two courses may be taken. They may rely on clause 121. In that case the Bill which
has been passed by the Federal Parliament, and declared ultra vires by the High Court,
would be laid aside, and a measure would be introduced for the amendment of the
Constitution. That measure would have to be passed by both Houses, and a vote of the
people taken upon it. If the vote was given in the affirmative, a new Bill would have to be
brought in providing for the income tax. The first law would be absolutely set aside, and a
very considerable delay would take place, although the popular will had all along been in
its favour, and the popular belief was that the making of such a law was within the powers
of the Federal Parliament. My clause would shorten matters very much. As soon as the
court declared the Bill to be ultra vires the Federal Parliament could [start page 1732] refer
the matter to the popular vote. If the vote was given in the affirmative, then that law would
have been from its first passage intra vires. The enlargement of the Constitution enabling
the Federal Parliament to pass an Income Tax Bill would be dated back to the time when
the Bill was first passed, and it would have been all along the law of the land. The financial
arrangements of the whole Commonwealth, which might have been made on the faith of
that Income Tax Bill being intra vires, would not be upset, as they would be if a new Bill
had to be introduced. I am afraid that there is only too much force, however, in the
suggestion of the honorable and learned member that my proposed new clause-I did not see
it before-is in conflict with clause 121. I will therefore forestall any declaration to that
effect upon the part of the Chair by asking leave to withdraw my amendment. I hope, a
little later on, after consultation perhaps with the honorable and learned member, to bring
forward a proposal which will not be antagonistic in its terms to clause 121, and which will
tend to make the amendment of the Constitution in accordance with the popular will as
speedy a process as possible.
Sir EDWARD BRADDON.-Does the honorable member think that if an appeal were
made to the people to upset the judgment of the Supreme Court, the case could be so
clearly put before the electors that they would be able to give an intelligent verdict upon
it?
Mr. HOLDER.-I should not dream for an instant of asking the people to consider, much
less to either confirm or reverse, any decision of any competent court, because I do not
think that they would be competent to pronounce an opinion in regard to such a matter. But
I would allow the people to say-"The Supreme Court is right, and to cure the defect in the
Page 277
Constitution which has been sprung upon us we want to see it enlarged, so that another
similar decision will be impossible." I do not propose to ask the people to adjudicate upon
the decisions of the Supreme Court, but I wish to give them power to enlarge the
Constitution in accordance with the decision of the Supreme Court.
Mr. Holder's proposed new clause 121A, was, by leave, withdrawn.
The usage of the word by the Framers of the Constitution during the Constitution Convention
Debates as well as shows;
Mr. ISAACS.-It compels everybody who has obeyed the decision of the higher courts to
act, or refrain from acting. That is a position which none of us would willingly get into,
and the retrospective action is wrong.
It is a constitutional principle therefore that retrospective legislation is wrong as to turn anyone

into some Criminal where at the time of the conduct of the person occurring the conduct may
have been legal to the laws then existing.
In my view, this is embedded in the Constitution that no kind of retrospective legislation can be
lawful!
As for the Hiugh Court of Australia to decide a matter to be intra vires it later could reverse this
decision where it has before it a case that shows that an earlier decision was ill conceived or
otherwise arrived at an incorrect conclusion. This is very obvious an issue where judges
adjudicating are to my knowledge not “constitutionalist” and as shown in the Sue v Hill, the
MABO case, the Franklin Dam case, the Hindmarsh Bridge case, Sykes v Cleary and numerous
other cases failed to hand down judgment based upon the correct interpretation of the Framers of
the Constitution as expressed in the Hansard records of the Constitution Convention Debates.
In the 1943 case where the High Court of Australia made a ruling as to the Constitutional powers
of the Commonwealth of Australia it then seemed to rule that the Commonwealth of Australia in
time of war had some power as to a persons liberty. Clearly the Hansard records of the
Constitutional Convention Debates proves otherwise. Just that the judges at that time never did
consult the Hansard records of the Constitution Convention Debates. Now we have where the
Federal government has declared some “WAR ON TERRORISM”, by this seeking to invoke
some purported legislative powers to deny citizens their constitutional rights and freedoms.
Constitutionally, the “WAR ON TERRORISM” is a LEGAL FICTION, as such a war cannot
exist. There is no constitutional concept to provide for this, yet, we find people detained and even
sentenced (For example Jack Thomson, a.k.a. Jihad Jack) and by this stripped on their electoral
rights even so the person constitutionally could not be deemed to have committed any crime.
As already earlier stated above;

Mr. BARTON.-
If we are going to give the Federal Parliament power to legislate as it pleases with
regard to Commonwealth citizenship, not having defined it, we may be enabling the
Parliament to pass legislation that would really defeat all the principles inserted
elsewhere in the Constitution, and, in fact, to play ducks and drakes with it.
And
1766] the laws regarding property and personal liberty is still left with the states.

Page 278
Without a DECLARATION OF WAR and without any actual attack upon the Commonwealth
of Australia there is no constitutional conception of there being any WAR.
The manipulation of the term WAR never should be permitted by judges but regretfully, they
merely assume that the Commonwealth of Australia is correct in its legislation as there are no
“constitutionalist” who are consulted to first address the right to legislate for matters such as the
so called Terrorist Act, where amendment were made to the ASIO Act to cover alleged terrorist.
It is for this also that we require an OFFICE OF THE GUARDIAN so that citizens are not
terrorised by unconstitutional legislation and denied by the High Court of Australia, albeit
unconstitutionally, to canvas these issues before the highest court of the country where the
Framers of the Constitution specifically provided for such a right.
In my view, this also relates back to the Governor-General and his political appointment
involving the Australian Prime Minister of Australia as to enable the Australian Prime Minister
to influence the governor-General as to whom to appoint to the bench of the High Court of
Australia rather then to have, as what is required constitutionally, the Governor-General is
appointed by the Monarch upon the advise of the Home Office at Downing Street, excluding the
involvement of the Australian Prime Minister, as to ensure that the Governor-General represents
the British Monarchy and is not some, so to say, lame duck that is a political football for the
Australian Prime Minister, and by this goes along perhaps making political appointment of
judges to the High Court of Australia regardless that those judges may lack any proper training
for this and are not constitutionalist.
It is an absurdity that a person like myself who never had any formal education in the English
language and who’s native language neither was English and who had no formal education in
legal studies, somehow ends up having a better perception and understanding regarding certain
constitutional issues then any of the judges of the High Court of Australia ever had.
Little wonder to me that then the High Court of Australia repeatedly refused to allow my cases to
be accepted as being filed, even so they were lodged with the Court, and refusing ongoing to hear
and determine applications upon their MERITS because simply they do not seem to be able to
comprehend/understand what it is about.
My right to have an adjudication by my peers, or by a competent Court clearly is eroded by this.
And in the case of a person like Mr jack Thomas he ends up with a conviction where as I
understand it even the jury was deceived as to its constitutional right to invoke
NULLIFICATION.
WHAT WE NOW SEEM TO HAVE IS THAT THE RULE OF LAW NO LONGER SEEMS
TO BE RELEVANT BUT RATHER WHATEVER POLITICAL DOCTRINE OF THE DAY IS
SEEKING TO BE ACHIEVED AND JUDGES APPEAR TO ME TO IGNORE THEIR LAID
UP DUTIES IN THE PROCESS BY GOING ALONG TO CONVICT PEOPLE WHO HAD
JUDICIAL OFFICERS APPLIED TRUE CONSTITUTIONAL PROVISIONS AND
LIMITATIONS NO CONVICTION EVER COULD HAVE RESULTED.
We have for example that the Minister for foreign Affairs refuses to issue a passport for
Australian citizen allegedly upon the basis of it being against the interest of the Commonwealth
of Australia. This kind of unconstitutional and illegal activity to deny an his right to emigrate or
otherwise leave the Commonwealth of Australia clearly is tyranny. See also Talbot v. Janson, 3
U.S. 133 (1795)
Yet, judges are simply unaware of this kind of tyranny being unconstitutional and so illegal
because we lack an OFFICE OF THE GUARDIAN, a constitutional council, that they can
consult as to what constitutional powers and limitations are applicable.

Page 279
It means that judges are adjudicating, even in good faith upon matters convicting people wrongly
because they rely upon unconstitutional (so ULTRA VIRES) legislation but they have no proper
avenue available to them to become aware of this.
It is very unlikely any judicial officer could possibly use the amount of time as I have to research
time and again the Hansard records of the Constitution Convention Debates as to understand
what the true intentions of the Framers of the Constitution really was about.
In my various published books I have quoted comments which in themselves might not alert any
person as to their meaning but in the context of other comments quoted a fast different picture
emerges then that any person otherwise may elicit from it.
The issue of “disability” referred to by the Framers of the Constitution dealing with legislation
enacted within Subsection 51(xxvi) is a clear example where unless one is a constitutionalist
having extensively researched it all one simply would overlook the relevance of such comments
and not being aware that any legislation enacted within the constitutional powers of subsection
51(xxvi) as to “race’ automatically disqualifies any person of such a race of “citizenship” and so
“franchise”, both State and Federal.
Mr. BARTON.-But if he is under any disability under any regulation of the [start
page 1787] Commonwealth he would cease to be a citizen, however slight that
disability might be. I doubt whether the honorable member intends that. There is
power by law to regulate the people of any race requiring special laws. There may be some
purely regulative law passed, not imposing any special restriction on any person of that
kind who may be a subject of the Queen. That regulation, if it were of the mildest
character, under this definition, would deprive him of his rights.
It is therefore very clear that;

That regulation, if it were of the mildest character, under this definition, would
deprive him of his rights.
And hence albeit it was held;
Hansard 3-4-1891
Sir SAMUEL GRIFFITH: I do not think there is any inconsistency. Each state is
allowed to prescribe who are to be its electors-it may say anything it pleases about that. I do
not think that an electoral law saying that only British subjects shall vote can be said to be
a special law applicable to the affairs of the people of any race for whom it is thought
necessary to make special laws not applicable to the general community. I think that
would be rather a far-fetched construction of the provision.
Mr. KINGSTON.-By its lessees or any one else. Pushed to a legitimate conclusion his
argument would amount to this: That the state might dictate as to the right with which each
Page 280
person could step ashore on to that soil. I do not think the matter should be viewed solely
with regard to our dealing with alien races, who will chiefly come within the scope and
purview of this sub-section. We ought to deal with the matter not on local or provincial, but
on broad Australian lines. I know that in this respect I differ a good deal from many with
whom I generally work in sympathy, but the view which I venture to propound is this-
that if you do not like these people you should keep them out, but if you do admit
them you should treat them fairly-admit them as citizens entitled to all the rights and
privileges of Australian citizenship.
Mr. TRENWITH.-And compel them to observe the same rules as other citizens?
Mr. KINGSTON.-Yes, compel them to observe the same rules as other citizens, but
impose no special rules intended for their special injury and to emphasize what some may
consider the degradation of their position. Sir, I think that in connexion with this coloured
races question we should do whatever we can for the purpose of keeping out coloured
races, and I recollect with considerable interest and some pride that I had the pleasure of
being associated with Mr. Deakin at the Chinese Conference in 1888, when an Australian
policy was agreed to-a policy [start page 247] which had the effect, to a very considerable
extent, of limiting the introduction of these coloured people. I think that subsequent events
have shown, not only the wisdom of that policy, but also that, if it had a defect, its only
defect was in not going sufficiently far.
Mr. DEAKIN.-Hear, hear.
And
Mr. KINGSTON.-I am not going to say whether it is disgraceful or not. I disagree with
it. As I was saying, I have always set my face against special legislation subjecting these
coloured immigrants to particular disabilities, whether it is, as in one province, providing
that a single Chinaman shall constitute a factory, or whether, as in our colony, it is the
prevention of the ownership of mineral leases by Chinamen. I think it is a mistake to
emphasize these distinctions. Keep these coloured people out if you do not want them
here, but if you admit them and do not want them to be a standing source of
embarrassment in connexion with your general government, treat them fairly, and let
them have all the rights and privileges of Australian citizenship.
Sir JOHN FORREST.-Would you give them the right to vote?
Mr. KINGSTON.-I do not think we ought to give them the right to vote.
Mr. PEACOCK.-They are here now, and they are naturalized citizens.
Mr. KINGSTON.-Then that is an additional reason for according them the full
rights of citizenship, and, as regards not giving them the right to vote, I put it to
honorable members that the proper course is to decide that question by Australian
legislation, and I should be undoubtedly found supporting a proposal which, as
regards future arrivals at the least, would prevent them being admitted to the exercise
of the franchise.
Sir JOHN FORREST.-You would not give them all the rights of citizenship, then?

Page 281
Mr. KINGSTON.-I would not allow them to come here in the hope of exercising those
rights, but I trust also that they will be kept out. There is no doubt whatever, it seems to me,
that one of the most important subjects that the Federal Parliament will have to deal with as
regards the regulation of these coloured immigrants-a subject second only in importance
to that question-is the question of the Australian treatment of those immigrants when they
are here; and just as I think that every one of those subjects ought to be dealt with by
federal legislation, so I think that, only in a secondary [start page 248] degree, the same
remark applies to the question of how the coloured people who are here shall be dealt with.
The result will be, if one colony is allowed to subject these coloured people to special
disabilities, to force them into the other colonies where they are more favoured, but no
more wanted. The broad view of the matter, which I venture to adopt, is that it is an
Australian question, and should be dealt with by the Federal Parliament, land by the
Federal Parliament only. Some question has been raised as to whether or not this power-if
conferred on the Federal Parliament in the shape in which we find it in the Bill-will prevent
the local Legislatures from dealing with the question pending federal legislation.
Mr. PEACOCK.-That is the whole point.
And
Mr. KINGSTON.-Clause 100 has some reference to the matter, but a more important
point was the one taken by Mr. Clark, then Attorney-General of Tasmania, and concurred
in by Sir Samuel Griffith at the Convention in 1891. Mr. Clark called special attention to
the use of the expression-"the people of any race with respect to whom it is deemed
necessary to make special laws not applicable to the general community" and he asked-
"By whom is it to be deemed necessary?" The answer, of course, is-"By the Federal
Parliament." Mr. Clark asked-"Do we know when the Federal Parliament will deem it
necessary to make special laws not applicable to the general community?" And the answer
is-"Not until the Federal Parliament exercise that power."
Mr. TRENWITH.-But whether the Federal Parliament deem it necessary to make such
special laws or not, their power to do so is exclusive.
Mr. KINGSTON.-It is only exclusive in connexion with the question that arises after the
declaration by the Federal Parliament that it is necessary to make such special laws.
For the record the Aboriginal and Torres Strait Islanders Act is unconstitutional as it deals tih
more then one specific race.
What we have is that the Racial Discrimination Act 1975 clearly is beyond Commonwealth
constitutional powers as it is directed against the “general community” and by this is a disability
of every member of the “general community” which includes every “elector”. Hence, in that
regard, albeit unconstitutionally, every person within the term of the “general community” has
been robbed of “citizenship” and so electoral rights. Meaning, that technically no one is entitled
to vote by not being an elector, by not having citizenship! As the Framers of the Constitution
made clear that any unconstitutional law was ULTRA VIRES, but remained law until
challenged. I for one have challenged the validity of the Racial Discrimination Act 1975, as it is
not a law against a specific race but against the “general community”.
As set out above, Aboriginals are not even citizens, as they lost it because of legislation within
section 51(xxvi) but also the citizenship of others are in question, where by the very existence of
the Commonwealth Racial Discrimination Act 1975 they (the general community) all lost
Page 282
citizenship. And, as the Attorney General for the State of Victoria made clear, there is no State
citizenship! Then how on earth can anyone have Commonwealth citizenship and how on earth
can then anyone be an elector? How then can I be in breach of law, where constitutionally
required State legislation to provide State citizenship and so Australian citizenship does not
exist?

Dr. QUICK.-
Such a disability might be imposed under the clause which we put into the Bill some time
ago, empowering the Federal Parliament to deal with foreign races and undesirable
immigrants. The Federal Parliament is empowered to declare that these races shall be
placed under certain disabilities, among which might be that they shall not be capable of
acquiring citizenship. The definition which I have suggested would not open the door to
members of those undesirable races, and it would empower the Federal Parliament to
exclude from the enjoyment of and participation in the privileges of federal citizenship
people of any undesirable race or of undesirable antecedents.
And
Mr. BARTON.-But if he is under any disability under any regulation of the [start page
1787] Commonwealth he would cease to be a citizen, however slight that disability might
be. I doubt whether the honorable member intends that. There is power by law to regulate
the people of any race requiring special laws. There may be some purely regulative law
passed, not imposing any special restriction on any person of that kind who may be a
subject of the Queen. That regulation, if it were of the mildest character, under this
definition, would deprive him of his rights.
Mr. KINGSTON.-There might be a special disability on minors.
Mr. BARTON.-That might be one of the disabilities. Of course here the disabilities
as to minors would not matter much, but I would like to put this consideration to Dr.
Quick, that if we use the term "subject," or a person subject to the laws, which is a wider
term, we shall avoid the necessity for a definition of "citizen." You might say a subject or
resident being the subject of the Queen.
Sir GEORGE TURNER.-Subject to the laws will be too wide.
Mr. BARTON.-Yes, it might be. The expression "resident subjects of the Queen" would
avoid the necessity of having a definition of a term which only occurs in one place in the
Constitution. I do not know how Mr Symon would take the suggestion, but it is far better
not to import the word "citizen" here if we can deal with it by a term well known in the
constitutional relations of the empire between the Queen and her subjects.
And

Page 283
Mr. ISAACS (Victoria).-I am afraid that the amendment is far too wide, unless we say
that the disabilities imposed by Parliament may extend to birth and race. This would,
notwithstanding the rights conferred under clause 52, deprive Parliament of the
power of excluding Chinese, Lascars, or Hindoos who happened to be British
subjects.
And
Mr. GLYNN.-There is power under the Bill to make special laws with regard to
territories, and I am not sure that we could not constitute a certain class of citizenship
for the territories.
Mr. BARTON.-That power would be exercised subject to the Constitution. If you make
the matter safe so far as the citizens of the territories are concerned in the Constitution,
legislative power could not interfere with them.
Mr. GLYNN.-I understand that you can make any provision you like as to
representation and otherwise until the territories become states. Their position in the
Constitution is purely provisional. I can see the force of the point, and I admit that my
amendment does not cover it. The proposal I have suggested puts the definition in the same
position as in America. Citizens of the Commonwealth are citizens of the state in which
they reside, and they also have, as Mr. Symon suggests, the privileges and immunities of
citizens of the several states. There is only one other means by which you could do what is
wanted, and perhaps it is the best: That is to adopt the principle of the German Constitution,
which says that there shall be a common citizenship, and that the rights of the citizens in
one state shall attach to the citizens in the other states. That would place it in the power of
the Federal Parliament to declare what are the conditions of citizenship. There would be
power under a provision of this kind to say that an alien should not be a citizen until
he had resided five years in the colony, while the citizenship would be uniform in its
character throughout the Commonwealth. In America, aliens have been prevented from
becoming citizens unless they have resided in the place for five years. They must then be
citizens for seven years before they can stand for Parliament. Honorable members will see
that by adopting the principle of the German Constitution we could prevent any special
rights being given to aliens, and I think it would be better in that form. I desire to call
attention to this point also, that even if you do not define citizenship at all in the
Constitution there would be very little harm done. It seems to be forgotten [start page
1790] that in the American Constitution the word citizen is used. It is not used in our
Constitution. In the original American Constitution the word "citizen" is for instance used
in connexion with representation in Parliament. A man must be a citizen for seven years
before he can be returned as a representative, so that there is a special reason for the
definition given to the term citizen. Here we do not use the word citizen. We use the
word "resident" only. The qualification for a Member of Parliament is residence for three
years, and very little harm will be done if we leave out "citizen" altogether. If the
Convention do not adopt a suggestion such as that I have made, the better plan will be to
fall back on the principle of the German Constitution, which would enable us to make
special laws regarding aliens. I would like to mention, in connexion with what Mr.
Isaacs said as to aliens, that this provision would not interfere in the slightest degree
in the way of preventing aliens from coming in, because it is only when the aliens get
inside the Commonwealth that this provision is to apply to them. The decision of the
Privy Council in the case of Ah Toy v. Musgrove was that an alien had no right to land here,
but that decision does not affect his citizenship after he has landed. Mr. Musgrove, then
Page 284
Secretary for Customs, prevented Ah Toy from landing. Ah Toy brought an action for
assault and battery against him, but the Privy Council held that that action could not be
justified.
Again;
The decision of the Privy Council in the case of Ah Toy v. Musgrove was that an alien had
no right to land here, but that decision does not affect his citizenship after he has
landed.
As the Framers made clear, once a person has entered then he can participate as like any other
citizen in the general community. Regretfully, the Commonwealth of Australia now makes a
mockery of this, to even imprison/deport people like Vivian Solon, an Australian national,
because of the crummy way, so to say, “citizenship” is abused and misused for ulterior purposes
in conflict to the intentions of the Framers.
QUOTE 19-11-2002 correspondence to Victorian Attorney-General
WITHOUT PREJUDICE
Attorney General 19-11-2002
Victoria
Fax 9651 0577 AND TO WHOM IT MAY CONCERN
URGENT
Sir/Madam
Since 27-9-2002 I sought clarification about what, if any State citizenship I have
as to be able to obtain Australian citizenship, yet, in the recent 18 November 2002 response it
was stated;
“As explained in my previous letter, citizenship is a matter for the Commonwealth,
not the States. You indicated that you were naturalized in 1994. As result of that, you
are an Australian citizen.”
This utter ridiculous response was provided by RUVANI WICKS, Assistant Director, Civil
Branch of the Department of Justice.
Edmund Barton (later becoming the first Prime Minister of Australia and thereafter a judge of the
High Court of Australia) made very clear during the convention, that if it isn’t in the
Constitution, then the Commonwealth had no legislative powers.
RUVANI WICKS refers me to the Commonwealth Government to sort out matters, however this
is clearly unacceptable, this, as the State of Victoria and not the Commonwealth deals or must
deal with State Citizenship!
Unless you can point out when there was a reference of legislative powers from the State of
Victoria to the Commonwealth approved within Section 128 of the Commonwealth constitution,
I view, there never was and still is no constitutional legislative powers by the Commonwealth to
determine State or any other citizenship!
At most, the Commonwealth, could determine “citizenship” as the local law for the Act and
Northern Territory through the parliaments governing those Territories (being Quasi States) as
they are not limited to constitutional provisions, however there never was any Constitutional
powers for the Commonwealth to grant citizenship to any resident of a State, neither determine
citizenship of a citizen of a State!
If your Department nevertheless maintains that the Commonwealth has the legislative powers to
determine citizenship of residents of the State of Victoria then please do set out in which

Page 285
Constitutional manner the Commonwealth had this power from on set, if any, and/or how it
obtained this legislative power since the formation of the Commonwealth!
If anything, the Department of justice ought to be well aware that unless it is done lawfully it is
ULTRA VIRES!
END QUOTE 19-11-2002 correspondence to Victorian Attorney-General
No further reply was received by me upon this.
What was shown was that the Victorian government also had seemingly gone along to confuse
Australian citizenship with state citizenship! And that is the real problem. Somehow everyone,
other then me, seems to have lost reality as to what is applicable.
Likewise, other States seemed to have gone along, despite constitutionally the purported
“Australian citizenship” could never substitute the constitutional powers of the states to
legislate for State citizenship. No State citizenship then no Commonwealth citizenship and so no
electoral rights either! Yet, even this basic issue still seems to remain unresolved! Still, Section
245 of the Commonwealth Electoral Act 1918 cannot be enforced unless the CDPP can show to
the Court that somehow I did obtain “State citizenship” (political rights) and so invoked Section
41 of the Constitution to obtain electoral rights in “Commonwealth citizenship”.
The problem we now are facing also is that the, so to say, con-job 1967 referendum was to
purport to give Aboriginals equality in voting. This, even so Aboriginals already voted in the first
federal election, but were since then unconstitutionally denied to do so. Amending Section
51(xxvi) to allow the Commonwealth to legislate in regard of Aboriginals, had a far wider
implication then was considered by the electors. Not only did all Aboriginals by this “disability”
loose their electoral rights, no longer being a “citizen” but also the Commonwealth then passed
the Racial Discrimination Act 1975, which was against the general community. Hereby all
persons of the General Community lost their citizenship likewise, albeit unconstitutionally.
The PRESIDENT took the chair at half-past ten o'clock a.m.
COMMONWEALTH OF AUSTRALIA BILL.
The Convention resolved itself into committee of the whole for the further consideration
of the Commonwealth of Australia Bill.
Discussion (adjourned from the previous day) was resumed on sub-section (1) of clause
53 (Exclusive powers of the Parliament), which was as follows:-
The affairs of the people of any race with respect to whom it is deemed necessary to make
special laws not applicable to the general community; but so that this power shall not
extend to authorize legislation with respect to the affairs of the aboriginal native race in any
state.
Dr. QUICK (Victoria).-I have always been under the impression that this clause
embodied, certainly, one of the most valuable powers to be conferred upon the Federal
Parliament, and have indicated that view during my federation campaign as a strong
argument in favour of federation, inasmuch as this power gives the Federal Parliament
control over the immigration of aliens. But the discussion which has taken place upon the
matter shows the importance of debate. I think that no time has been wasted in the
discussion of sub-section (1), which is worthy of full ventilation. I would like to bring even
Page 286
more closely under the notice of the Drafting Committee the real import and significance of
the provision. My honorable friends in the representation of Victoria yesterday drew
attention to a point of considerable importance as to the possible effect of this sub-section
in preventing the local Legislatures from dealing with the alien question up to a certain
point. There can be no doubt as to the desirability of conferring unlimited powers on the
Federal Parliament to prevent the introduction of foreign coloured races. It may be
thought that that power is conferred on the Federal Parliament under other clauses in the
Constitution. This sub-section, as I understand it, is restricted in its operation to people of
certain races when they are within the jurisdiction of the Commonwealth. I would like to
suggest whether it is wise to withdraw all power and jurisdiction from the Federal
Legislature upon such people within certain limits. Sir John Forrest, yesterday, touched
upon the fringe of the subject I am discussing when he mentioned that there are certain
laws in Western Australia which prevent certain coloured races from having miners' rights,
or from going on the gold-fields, or holding hawkers' licences.
Mr. PEACOCK.-There is a similar provision in our Mines Act.
Dr. QUICK.-And in the Victorian Mines Act there is power to insert in the covenants of a
mining lease a provision that the employment of Chinese labour shall not be permitted to be
a compliance with the labour covenants of the mining law. That is, of course, an important
power to be held by any Parliament, and it is a power which is restricted within the
territorial limits. It is not proposed in this Constitution to take away from the state
Legislatures jurisdiction over mines and minerals. I would, therefore, like the Drafting
Committee to consider whether this sub-section, as it stands at present, will not prevent the
Parliament of Western Australia from abstaining from granting miners' rights to
coloured aliens, and prevent the Parliament of Victoria from continuing to enforce the
proviso that the employment of Chinese labour shall not be a compliance with the labour
covenants of the mining law?
Mr. DEAKIN.-Read clause 110 in connexion with that.
Mr. BARTON.-That applies rather to the administration of the laws, I think.
[start page 246]
Dr. QUICK.-The clause alluded to by Mr. Deakin says-
A state shall not make or enforce any law abridging any privilege or immunity of citizens
of other states of the Commonwealth, nor shall a state deny to any person within its
jurisdiction the equal protection of the laws.
It may be that that clause supports the view that the state would not be able to impose
disabilities upon coloured aliens.
And
Mr. KINGSTON.-Clause 100 has some reference to the matter, but a more important
point was the one taken by Mr. Clark, then Attorney-General of Tasmania, and concurred
in by Sir Samuel Griffith at the Convention in 1891. Mr. Clark called special attention to
the use of the expression-"the people of any race with respect to whom it is deemed
necessary to make special laws not applicable to the general community" and he asked-
Page 287
"By whom is it to be deemed necessary?" The answer, of course, is-"By the Federal
Parliament." Mr. Clark asked-"Do we know when the Federal Parliament will deem it
necessary to make special laws not applicable to the general community?" And the answer
is-"Not until the Federal Parliament exercise that power."
Again;
-"the people of any race with respect to whom it is deemed necessary to make special laws
not applicable to the general community"
What we now have is that judges are adjudication upon LEGAL FICTION rather then upon
constitutional reality. As I view it they have been “brainwashed” during legal studies and
otherwise to accept the term “Australian citizenship” being Australian nationality and
determining the right of franchise by this even this clearly is unconstitutional.
A clear example of judges adjudicating upon a LEGAL FICTION is in the High Court of
Australia case of Mr. John Murray Abbott deemed to have a DEBT TO THE
COMMONWEALTH in regard of child support, even so no such constitutional powers in the
first place exist for the Commonwealth to turn children into slaves as to make a private debts into
some kind of DEBT TO THE COMMONWEALTH, as I have already canvassed extensively
in my already published books.
In the Abbott case the High Court of Australia upheld that Mr John Abbott had a DEBT TO
THE COMMONWEALTH as claimed by the Child Support Agency throughout previous
litigation involving the Magistrates Court of Victoria, the Family Court of Australia and the Full
Court of the Family Court of Australia. The irony is that after Mr Abbott lost his High Court case
then the Child support Agency refunded the moneys already obtained upon the basis that it found
there was after all not DEBT TO THE COMMONWEALTH at all. As such, each and every
Court, including the High Court of Australia had adjudicated upon a LEGAL FICTION that
there was a DEBT TO THE COMMONWEALTH even so there was none.
The Hon. E. BARTON: If the subclause can be amended in the direction which the hon.
and learned member suggests, my objection will have disappeared, and there will be a
reasonable consistency in the law. I think the difficulty might be overcome by inserting
before the words "parental rights" the word "also," and at the end of the sub-clause the
words "in relation thereto."
Mr. SYMON (South Australia)[3.51]: Is it worth while to deal with the matter in that
way? If you give the federal parliament power in relation to marriage generally and divorce
generally, then anything that concerns parental rights and the custody and guardianship of
infants is connected with either one or the other. It seems to me that if you intrust the
federal authority with the power of dealing with marriage and divorce, which involves
everything relating to the highest earthly ties-that of marriage-it ought, consequent on that,
also to regulate the custody of infants. It does not involve what the hon. member, Mr.
Carruthers, seems to think is in the minds of many who see some objection to this-
that it might empower the federal authority to interfere with domestic relations in
some mysterious manner so as to reduce children to a position of slavery. This is a
control that seems to me to be consequent upon marriage, and which might come into
operation, perhaps, in relation to all matters of divorce; but it is not confined to matters of
divorce, and might depend simply on marriage when the question of divorce does not arise.
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It will, perhaps, be better to leave the sub-clause as it is and consider the matter further
later on.
Again;
It does not involve what the hon. member, Mr. Carruthers, seems to think is in the
minds of many who see some objection to this-that it might empower the federal
authority to interfere with domestic relations in some mysterious manner so as to
reduce children to a position of slavery.
Yet, the Commonwealth of Australia somehow has turned a “private debt” into a FICTITIOUS
“DEBT TO THE COMMONWEALTH” even so this in effect turn children into chattels of the
Commonwealth of Australia where no such constitutional powers exist.
And, by the child support Agency averting any evidence to prove there is actually a debt at all
but judicial decisions are made upon the FICTIONAL debt alleged by the Child Support
Agency, the end result is that people innocent of any breach of law are still ending up having a
judgment against them because judges simply fail to have appropriate understanding of what is
constitutionally and/or further legally applicable.
Mr. HOWE: That is the origin of "gerrymandering."
Mr. HIGGINS: I perfectly admit that the foundation for this extraordinary claim is that
the minority will be swamped by the majority. Now, I wish to face that. Every minority is
swamped by every majority. Supposing you take the constituency of Port Augusta, if there
is such a one in this province, and it returns one member. At Port Augusta some people
vote one way and some another, and the minority are swamped by the majority. Why
should they not be?
Sir WILLIAM ZEAL: Hang them at once!
Mr. HIGGINS: Sir William Zeal is a good example. He represents a minority in

Victoria, and yet he has not been hanged, and I would be sorry to see him. The minority
must trust to the sense of justice on the part of the majority, and no one can say that there
has been any glaring injustice done wantonly by the majority. A familiar instance put
before us in this argument is the case of England, Scotland, Ireland, and Wales. There is no
doubt that the three smaller countries are swamped by the majority in England.
Mr. SYMON: That is unification.
Mr. HIGGINS: The hon. member has hit on the very point.
Mr. HOWE: That is what you want here.
Mr. HIGGINS: I am glad that this instance has affected my friend Mr. Howe. I would
point out that last year the Scotch County Councils Bill was brought forward. The Scotch
members were, however, swamped by the huge majority of England, and they could not
have their own way in a purely Scotch matter. The distinction is this-and I hope my
honorable friend will bear it in mind-that the Scotch people have not got control of their

Page 289
own local affairs, but in a Federation local affairs will be governed and controlled by the
local Parliaments.
Mr. HOWE: That is why the Scotch are going for Home Rule.
Mr. HIGGINS: I think they will be able to find means to get out of the difficulty, but I
shall not add home politics to Australian politics just at present. The proposal is not to
swamp any one of the States. Each small State will still have sole control of its own
affairs.
We find however that despite this, we now find that the Commonwealth of Australia
unconstitutionally seeks to use the Companies Act to interfere with State jurisdiction as to
Industrial Relations. Yet, while it was given constitutional powers to protect Australian
workers their jobs as to make specific laws against any “coloured race” as to prevent them
as cheap labour to undermine Australian workers their job security, we find theat the
Commonwealth of Australia is precisely acting contrary to this by allowing “coloured
races” to undermine Australian workers job security and to turn , albeit unconstitutionally,
the constitutional provisions of Subsection 51(xxvi) into a Racial Discrimination Act
directed against the “general community”.
Bu this effectively have caused a “disability” against all Australians and so robbed them of their
citizenship, and so franchise.
For the Court to be able to invoke legal jurisdiction it also has to consider the fact that neither the
Proclamation or the writs were appropriately Gazetted, in that the commonwealth of Australia
has gone about to alter all kinds of matters without any proper regard as to constitutional and
other legal requirements.
A clear example is that the closure of the Commonwealth Government bookshops and the later
substitute Info shop has resulted that a person like myself are unable to obtain copies of the
Gazette on the day it is purportedly published and I have to make an order as to obtain it by post
in time to come. No judicial officer possible can accept this to be constitutionally acceptable
where a person is bound to comply with legislation he has no ability to obtain information about
until some time in the future. A person therefore may pursue to act in a lawful manner, and yet
be deemed in breach of law because the concealment by the Commonwealth of Australia of
legislation it enacted.
Act Interpretation Act 1901 (Cth)

The date appearing on the copy of an Act printed by the Government Printer, and
purporting to be the date on which the Governor-General assented thereto, or made
known the King’s assent, shall be evidence that such date was the date on which the
Governor-General so assented or made known the King’s assent, and shall be
judicially noticed.
17 Constitutional and official definitions [see Note 2]

(j) Proclamation shall mean Proclamation by the Governor-General published in the
Gazette;

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(m) Gazette means the Commonwealth of Australia Gazette, and includes the Australian
Government Gazette published during the period commencing on 1 July 1973 and
ending immediately before the commencement of subsection 5(2) of the Acts
Interpretation Amendment Act 1976;
(n) The Government Printer shall include any person printing for the Government of
the Commonwealth ;
17A Paper or document purporting to be printed by Government Printer
For the purposes of an Act in which reference is made to a paper or document
purporting to be printed by the Government Printer, the words “Government Printer of
the Commonwealth ”, “Government Printer of the Commonwealth of Australia”,
“Commonwealth Government Printer” or “Government Printer of Australia” appearing
on a paper or document shall be deemed to refer to the Government Printer.
The Special Gazette S421 (containing the Proclamation of the Governor-General of the Prorogue of the
Parliament and the dissolution of the House of Representatives was not shown to be published by
the “Government Printer”, as required by law, but “Published by the Commonwealth of
Australia”, and as such in that regard also could not be considered to be a formal publication of
the Commonwealth of Australia. The wording “Commonwealth of Australia”, can be used on a
number of publications, including road maps, nothing to do with legal requirements of
publications.
The Act Interpretation Act 1901 does provide for certain variations of the usage of the wording
“Government printers, however, no such wording exist on the Special Gazette s421 or other
Gazette’s and for this fail to be official Government Printers publications, hence for this the
Proclamation never was a Proclamation for this either, as the validity of any Proclamation is not
the signing of the Proclamation by the Governor-General but from the time it is actually
published (and so made available for sale to the general community) in an official copy of the
Gazette. Special Gazette S421 was to be the publication of the Proclamation of the Prorogue of
the Parliament and the dissolution of the House of Representatives, a constitutional requirement
before writs for a general election can be issued.
As there are also newspapers with the title “Gazette” it is therefore essential that the correct wording is
show including “Government Printer” as to make it to fall within the constitutional and further
legal requirements of being a formal notification.
The Gazette’s (of whatever name, including Special Gazettes) published by the Commonwealth
are using the wording “Published by the Commonwealth of Australia” and do not have any
reference to “Government Printer”, as referred to in the Act Interpretation Act 1901. As the
Commonwealth published a range of material, through its post office networks and Info shops
(Commonwealth Government bookshops), which are not official documents, the Applicant
therefore takes the position that unless there is a reference to “Government Printer” or any
variation of it as referred to in Section 17A of the Acts Interpretation Act 1901, a documents
published by the Commonwealth is not to be considered a publication of the Government Printer
for the purpose of Section 6 of the Acts Interpretation Act 1901.
That for this the Gazette is not an Official publication within the meanings of the Acts
Interpretation Act 1901.
That albeit the wording “Published by the Commonwealth of Australia”, is shown on the face
of each Gazette, the printing and the publishing of material are not the same. As such, as to who
publish the documents doesn’t give validity to the application of Section 17A of the Acts
Interpretation Act 1901. This, as the printing itself is the relevant issue referred to.

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For this, the Gazette (under whatever name) published by the Commonwealth of Australia is not
one that is deemed to be an official publication within the meaning of Sections 6, 15AB (2)(a),
17A and 40.
In a recent decision of the High Court of Australia, in regard of publication, Dow
Jones & Company Inc v Gutnick [2002] HCA 56 (10 December 2002) case, it was
held that the publication occurs at the place where it becomes available. As such,
where the Commonwealth through its bookshops make available to the public maps,
not printed at all by or on behalf of the Commonwealth, then the mere fact of them
being “published” by the Commonwealth of Australia” does not make the each
particular document then to fall within Section 6 of the Acts Interpretation Act 1901.
For this, unless the wording Government Printer, or a variation as set out within
Section 17A of the Acts Interpretation Act 1901, appears on the relevant document,
the document is not one within the ambit of Section 6 of the Acts Interpretation Act
1901. For this, the Gazette’s published are not official Government publications,
failing to have any reference to “Government Printer” on the face of the document.
Again;
it was held that the publication occurs at the place where it becomes available.
With Special Gazette S421 it was not published in the State of Victoria until 10-11-2001. A
massive 2 days after the writs were already issued! In fact in Tasmania not until 22-10-2001 was
the Special Gazette first published! As such, the writs for general elections were constitutionally
floored in that regard and were ULTRA VIRES, as they failed to comply with the requirement
of Section 32 of the Constitution in that regard also.
Re Victorian sentencing laws not applied, first offence provisions.
If flag burning ought not be a criminal offence because of being a political expression then not
voting being a political expression surely should not be a criminal offence.
The Age Saturday 28-1-2006, by Clay Luca

QUOTE
FLAG BURNING
Yahoos, not martyrs, say Howard
BURNING the flag was offensive but should not be made a criminal offence, Prime
Minister John Howard says.
Mr Howard said yesterday that the burning of a flag by Aboriginal protesters in Brisbane
on Australia Day was “offensive”, but flag-burning should not be a criminal offence, as it
was an expression of political opinion.
“Much as all I despise what they did, I do not believe it should be a criminal offence, he
said. “By making it a criminal offence, we only turn yahoo behaviour into martyrdom.”
Opposition leader Kim Beazley said the Brisbane activist who torched the flag was “an
idiot”. Liberal MR Bronwyn Bishop this month told a Young Liberal convention in Sydney
that she would introduce a private member’s bill in Parliament making flag burning illegal.
END QUOTE
My expression of political opinion must certainly include a refusal to vote in anyway for
opponents or other war mongering candidates.

Page 292
In the Langer case the High Court of Australia made clear, that voting is secret. Well, if the
Court in any way at all were to enforce some kind of duty to vote, then I view this is
unconstitutional and undermines the secrecy of voting by this also.
Basically, the Australian Electoral Commission is revealing to the world at large his claim that I
failed to vote.
Contrary to the Indonesian constitution which provides for a flag for Indonesia and so its colours
and contrary to the provisions of the constitution of Singapore which deals with rights of
Singaporean citizens being equal to Commonwealth citizens (meaning in the British
Commonwealth), the Commonwealth of Australia Constitution Act 1900 (UK) is not providing
any such constitutional provisions at all. In fact the Framers of the Constitution made clear that
at all official functions the national anthem “God save the Queen” is to be played.

Mr. BARTON.-Yes, since then, as is pointed out in a little handbook which my
honorable friend lent me. But the question for us to consider is whether a court like the
Federal High Court or the Privy Council would ever come to such a conclusion. One would
think it highly improbable. The real question that may arise under this Constitution is
whether the Commonwealth can make a law establishing or prohibiting the free exercise of
any religion. I take it that in the absence of a provision in the Constitution conferring
that power upon the Commonwealth it will be impossible for the Commonwealth to
do so. For this reason I think we need scarcely trouble ourselves to impose any
restrictions. Under a Constitution like this, the withholding of a power from the
Commonwealth is a prohibition against the exercise of such a power.
Again;
Under a Constitution like this, the withholding of a power from the Commonwealth is
a prohibition against the exercise of such a power.
As such, the withholding of constitutional powers to have its own flag and national anthem
clearly means it cannot be provided for by the Commonwealth of Australia.
The burning of what is deemed to be the “national flag” where in fact constitutionally the Union
Jack (the British flag) remains the official flag clearly indicates how absurd the Commonwealth
of Australia is being governed.
It is felt in the forms in our courts of justice, in the language of our Statutes, in the
oath that binds the sovereign to the observance of oar liberties, in the recognition of
the Sabbath, in the rubrics of our guilds and social orders, in the anthem through
which on every public occasion we invocate a blessing on our executive head, in our
domestic observances, in the offices of courtesy at our meetings and partings, and in
the time-honored motto of the nation.
Again;
in the anthem through which on every public occasion
It also means that the Courts, such as in the Dominions the State of Victoria the Courts, including
the County Court of Victoria must honour the position of the British Monarch under which
constitutional laws it operates.
The problem is also, that the Commonwealth of Australia has provided legislation as to ABN
numbers for corporations, and it appears to me that the State Courts have also fallen for the trap

Page 293
to follow suit in this unconstitutional conduct and operate as businesses and by this are defaulting
on acting as a Court of Law where the principle of JUSTICE and not statistics of successful
convictions versus failure to convict is rather the bottom line as to consider the cost of operating
Courts.
THIS PART IS CONTINUED BY PART 3
ADDRESS TO THE COURT, Part 3

With an OBJECTION TO LEGAL JURISDICTION, who has the carriage of the

proceedings?
&
No legal jurisdiction can be invoked with Constitutional matter before the Court.
&
NO CASE TO ANSWER
&
STANDARD OF PROOF
&
DOUBLE JEOPARDY RULE
AVERTMENT
Part XXIII Miscellaneous
Section 387 384 Commonwealth Electoral Act 1918
(i) section 326 or 327 of this Act or section 28 of the
Crimes Act 1914; or
388 Averments deemed to be proved

In any prosecution in a court of summary jurisdiction in respect of
a contravention of the provisions of this Act or the regulations
relating to compulsory enrolment or compulsory voting, instituted
by an officer or by any person acting under the direction of an
officer, the averments of the prosecutor contained in the
information or complaint shall be deemed to be proved in the
absence of evidence to the contrary.
There is something illogic about this section in that it demands that unless the Defendant present
evidence to prove contrary to the averment rule that there is evidence disproving the fact alleged
by the Commonwealth director of Public Prosecution there is no requirement for the Director of
Public Prosecution to prove anything.
Now, let take this in the correct prospective by example;

A trial commence and the Prosecutor having charged the Defendant with failure to vote then
commence his case and using the averment rule does not provide any evidence to prove the
charge. The Defendant then pleads NO CASE TO ANSWER, and the judicial officer rejects this
on the basis that the averment rule applies. The Defendant then commences to open his case and
present evidence contrary to the charge. The Defendant has the conduct of civil standards of
proof and as such merely has to state that he/she attended to the polling station. And as such the
defendant has completed his contrary evidence. While the Prosecutor can now cross examine the
Defendant, something the Defendant was denied to do upon the Prosecutor as to elicit any
evidence because the Prosecutor relies upon the averment rule, now the Prosecutor ask all kinds
of questions to try to trap one way or another the Defendant to give evidence that he had perhaps
not filled in the ballot paper or otherwise did not accept them. The Prosecutor has clearly no
Page 294
legal position to now call witnesses, such as those who were at the polling station as to what
actually occurred at the polling station, and so is seeking to use the Defendant to try to prove his
case. However, because of the NO CASE TO ANSWER claim the Defendant made before
opening his own case, the judicial officer must now find that the failure of the prosecutor to
present evidence and to rely now upon the Defendant to give some kind of evidence that he may
not actually have filled in any ballot paper is irrelevant as the claim of NO CASE TO ANSWER
relies upon what evidence was before the Court PRIOR TO what evidence was before the Court
when this claim was made and must disregard any evidence that was given afterwards. A Court
of Appeal, if the matter is appealed, re-assess the claim of NO CASE TO ANSWER, upon the
basis if the Prosecutor in fact had proved “BEYOND REASONABLE DOUBT” the charge and
by this must disregard any evidence that was given after the claim of NO CASE TO ANSWER
was made. The Prosecutor having the “CRIMINAL STANDARD OF PROOF” there by had
the onus to disprove each and every excuse the Defendant may proffer on the “CIVIL
STANDARD OF PROOF” and therefore where the Prosecutor takes the gamble of relying upon
the averment rule that he takes a CALCULATED RISK that it might be fatal to his case. The
judicial officer, who becomes aware , once the Defendant opened his case, that the Defendant in
fact on CIVIL STANDARDS OF PROOF had a excuse, then is duty bound to discontinue the
trial and make a ruling that the NO CASE TO ANSWER claim by hindsight now is validated.
This, as the Prosecutor already had closed his case. To allow for the prosecutor to use cross-
examination as a way to try to re-open his case and to try to thereby get away from the averment
rule and now seek to rely upon evidence elicited from the Defendant would a be gross abuse of
the legal processes and would defeat the entire purpose of what the averment rule is about and
interfere with the DUE PROCESSES OF LAW.
It, so to say, would giver the Prosecutor another bite on the cherry to re-commence his case,
having refused already to present relevant evidence. It also robs the Defendant of a FAIR and
PROPER trial as the Defendant is denied to elicit of any witnesses for the Prosecution what he
may wish to present as simply by the averment rule application the Prosecutor can conceal
evidence from the Court that might be critical to the Defendants case.
If for example the Defendant attended to the poling station and notified staff that he had religious
objections to vote, which is provided for within Section 245 of the Commonwealth Electoral Act
1918 for an excuse not to vote, then regardless if the staff member of the Australian electoral
Commission then by error or otherwise did not mark of the name of the Defendant is not an issue
as within the legislation no charge can be upheld. Therefore, it is not relevant if the Defendant in
this example did not receive ballot papers, if his/her name was not marked of rather what is
relevant if at the time the Defendant by what occurred at the polling station was excused not
having to vote. the staff member having not issued any ballot papers may in his/her mind
correctly not mark off the name of the Defendant as after all he/she did not fill in any ballot
paper.
When then the Prosecutor, having relied upon the averment rule failed to present witnesses that
could, so to say, shed a light upon matters then this must be deemed FATAL to the charges and
no charges could be legitimately upheld.
Therefore, any evidence of by the Defendant during cross examination, if he gave such
evidence., that he did not receive any ballot papers, after attending to the polling station is not of
any standard of criminal proof by the Prosecutor that the Defendant therefore is guilty of failing
to vote.
In the proceedings before the Magistrates Court of Victoria at Heidelberg on 16 and 17
November 2005 the Prosecutor at no time did cross examine the Defendant in that case, when
advised the staff of the Australian Electoral Commission did not issue any ballot papers, if this
was because of having been made or being aware of any religious objection. The Prosecutor
neither cross examined if the Defendant had not been issued with ballot papers because of having

Page 295
declared perhaps that he had already submitted a postal voting or was to do so that day. And I
raised this with the magistrate that the Prosecutor had failed to address this!
As such, what we had was a conviction where even if all issues regarding validity of citizenship,
writs, proclamation, the appointment of Governor-Generals, etc were all overcome somehow by
the Prosecutor, something I view is beyond his capacity to get around, then in the end his own
usage of the averment rule is FATAL to his case as he could not now in cross examination call
witness , such as staff members of the Australian Electoral Commission to give evidence that
either they denied any religious objection having been made or otherwise any postal voting or
pre voting was recorded.
For example, in regard of the 2004 purported federal election, standing as a candidate, I was
known to refuse to indicate a preference vote as I opposed the murderous unconstitutional
invasion into the sovereign nations Afghanistan and Iraq and did not wish to be seen to support
this by giving preference vote indications which may be seen that somehow I supported this
humanitarian disaster and warmongering. Hence, it was therefore critical to the Prosecutors case
if perhaps the staff member sitting at the table when my wife and I attended at the polling station
may have been aware or have been made aware that I opposed any kind of involvement as to the
murderous invasions and as such was not issued any ballot papers on that basis.
I was well aware during the proceedings that it didn’t matter for me to give whatever evidence as
ultimately having made a NO CASE TO ANSWER the magistrate was bound by this to
reconsider then if in light of the subsequent evidence his earlier ruling to dismiss my submission
of NO CASE TO ANSWER was found to be proven where I presented a reasonable excuse that
I had attended to the polling station and as such it was not for the Court to try to score some
conviction where the Prosecutor himself had elected not to call witnesses who could have
clarified what occurred that day.
Again, it was not for the magistrate to assume what may have occurred that day where the
Prosecutor himself refused to call witnesses whom could have elaborated on what had occurred
on that day! The Defendant was denied the option to cross witnesses in that regard as there were
none who could have shed light on this and as such the Prosecutor taking the gamble to prevent
the defendant to question any staff of the Australian Electoral Commission by this had
overplayed his hand, so to say.

Mr. DEAKIN:
It appears to me that the representatives of the less populous States decline to distinguish
sufficiently between the money powers and the general powers to be conferred by a
Constitution. Now the distinction is no mere fantasy. It should be recognised in the
forefront of the Constitution. In the exercise of both powers there are instances in which it
is possible that State interests may be put in jeopardy. State rights cannot be put in. such
jeopardy; they are enshrined and preserved under the Constitution and protected by
the courts to be established under that Constitution.
It must be clear that the Framers of the Constitution themselves relied upon certain principles
having been embedded in the Constitution, and unless one is a “constitutionalist” as I am by
self education, no one really should attempt to use constitutional provisions an limitations or any
legislation within that unless it has been checked of its constitutional correctness.
"A right is not what someone gives you;

it's what no one can take from you."
HYPERLINK "http://quotes.liberty-tree.ca/quotes_by/ramsey+clark" Ramsey Clark
U. S. Attorney General New York Times, 2 October 1977

Page 296
The right to vote exist and cannot be made subject to curtailments. Only if a person exercise a
right to vote can appropriate legal provisions regarding the exercise of such right be invoked, if
they are constitutionally valid, that is.
For example, a person whom obtains a divers licence and is entitled to drive has the right to
exercise this but cannot be made obligated to do so. It is only when exercising this right to drive
a motor vehicle that then his duties to conform with road rules apply in that regard.

Sir GEORGE TURNER:
I would go the length of saying that everyone who has the right in the various colonies, if
they desire to exercise their franchise, should have the opportunity of doing so.
The right to vote cannot be enforced if the person holding this right desires not at that time to
exercise that right.
In Macleod Lord Halsbury L.C. quoted (at p 458) the remarks of Parke B. in Jefferys v. Boosey
(at p 926 of HLC (p 725 of ER)):
"(T)he Legislature has no power over any persons except its own subjects, that is, persons
natural-born subjects, or resident, or whilst they are within the limits of the Kingdom. The
Legislature can impose no duties except on them; and when legislating for the benefit of
persons, must, prima facie, be considered to mean the benefit of those who owe obedience
to our laws, and whose interests the Legislature is under a correlative obligation to protect."
In Delaney v. Great Western Milling Co. Ltd (1916) HYPERLINK
"http://www.austlii.edu.au/au/cases/cth/high_ct/22clr150.html" 22 CLR 150 , at pp 161-
162, Griffith C.J. quoted and applied those remarks.
I view that the so called “Pacific solution” is not only unconstitutional but the Commonwealth
of Australia has no constitutional powers to detain people in breach of constitutional provisions.
The Framers of the Constitution specifically made clear that the “ADMINISTRATION” of
Commonwealth law enforcement was with the States, and Section 120 of the Constitution was
put in place for the detention of any person accused or convicted in State prison system.
With the “TAMPA” incident and the “CHILDREN OVERBOARD” saga and the
unconstitutioinal detention refugees, and the wrongful detention of children who were natural
born in Australia but unconstitutionally robbed of their birth right by the Commonwealth of
Australia and so unconstitutionally deported as “STATELESS” I took the stand against this, and
while legally not entitled to advise people not to vote, I was entitled to refuse to give preferences
and make known that I opposed to vote that may somehow be used by preferences that could be
used to claim that those involved in those human and unconstitutional disasters were having my
support. This is the problem with “preference” voting system that if the other candidates all are
in support of conduct that I deem unconstitutional then giving any preference of voting my vote
and those of others who follow this preference would automatically go to the next candidate
allocated where I would not be elected. Therefore, the preference voting system in effect denied
any elector to vote as he/she desires as it basically forces a person to have his/her vote counted
for a warmongering candidate where the opponent to warmongering fails to be elected.
While it may be argued that the elector can leave his/her ballot paper blank, this would rob the
elector of the right to vote for the very candidate that opposed such inhumane and
unconstitutional conduct. As such, the very POLITICAL LIBERTY enshrined in the
Constitution is denied.

Page 297
Therefore, besides the legal issues governing the validity of the election process there were
ample of reasons for me to not vote and to avoid encouraging other to vote for any person I view
is deviant. By refusing to give a preference to anyone and making known my opposition to the
BANANA REPUBLIC kind of system now in place I did achieve more by this then had I
refrained to be a candidate, had withdrawn, etc.
I did publish;

Dictatorship & deaths by stealth- Preliminary book edition on CD
ISBN 0-9580569-3-5
And
INSPECTOR-RIKATI® & There is no Government to go to war
A book on CD About Legal Issues Confronting Australia
ISBN 0-9580569-5-1
I am due to publish (at the time of drafting this ADDRESS TO THE COURT)
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
And also;
INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting

A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS
ISBN 0-9751760-1-3
Therefore no one can deny that I have placed on record time and again my opposition to war
mongering my views about the current BANANA REPUBLIC OF AUSTRALIA situation, etc.
Therefore it neither could be claimed by the Commonwealth director of Public Prosecution that I
did not make any attempt in regard of the issues I raise as the records are in tens of thousands of
pages.
Indeed, in;
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
I am intending to publish more then 400 Megabite of correspondence to politicians and others
both within and outside the Commonwealth of Australia, including various heads of
Government, including constitutional issues. This is why I publish on CD as I include also
responses such as from His Royal Highness Prince Charles and Prime Minister Tony Blair
for their copies of my books forwarded to them.
As a judge some 20 years ago made clear to a opponent barrister that my conduct is that of a
TRAPDOOR SPIDER, and that I open up a PANDOORA BOX and that as long as I remained
within the legal provisions there was nothing he could do to stop me cross examining the
witness. It was also because of being labelled TRAPDOOR SPIDER that judges, magistrates
and even lawyers of opposing parties requested my assistance being it at the bar table and or in

Page 298
deliberations as they were well aware that I have a skill to negotiate (MEDIATION) and get
unrepresented parties to achieve a FAIR and PROPER hearing.
The BLACKSHIRTS was a case where four of the BLACKSHIRTS had been charged with
STALKING on 24 November 2001. Three of them were before the Magistrate Court of Victoria
at Ringwood on 2-December 2001, where two were legally represented and the third Defendant,
suffering dyslexia relied upon an ADDRESS TO THE COURT I had assisted with to present
his case of NO CASE TO ANSWER. The magistrate dismissed all charges, where the
unrepresented Mr Ray Vella refused to have the case adjourned and insisted the trial to proceed
(while the lawyers were willing to have the matter adjourned) because the police never having
served any of the evidence upon the unrepresented Mr Ray Vella obviously could not proceed
when the magistrate ruled in favour of Mr Vella to proceed with the case. Hence the case ended
with dismissal of all charges relating to STALKING. A week later, the police reinstated the
STALKING charge against the three, and their lawyers then made known that the police were
entitled to do so. I became the unofficial co-ordinator of all four Defendants and made clear that
legally this could not be done and the re-instatement of charges was “an abuse of the legal
processes” in particular that the police could not use evidence against Mr Vella they had prior to
the original charges having been dismissed but never had served it as without fresh evidence
there was no case. In the end His Honour Ross J of the County Court of Victoria in September
2004 indicated that the reinstatement of the charges already dismissed previously by the
magistrate were “an abuse of the legal processes”. This being precisely what I had claimed all
along! It would effectively have been against the DOUBLE JEOPARDY rule to retrial people
already obtained a dismissal of charges. Further more, where the police elected not to provide
evidence to the defendant prior to the original charge having been heard before the Court then the
police cannot use this evidence subsequently without any fresh evidence to support the charge.
The jury found Mr Abbott, who had sought obtained a verdict from the Magistrates Court of
Victoria but had elected to have a jury, NOT GUILTY to the same charge.
Sure, I am not a legally trained lawyer, so to say, but the fact that lawyers (including barristers)
seek my assistance which I always provided FREE OF CHARGE, in civil and criminal matters,
including to research constitutional issues, may indicate that as an Attorney and McKenzie
Friend, etc, I have assisted many.
The difference being that not being a lawyer no one can force me to assist someone I desire not
to assist, I can step out of any case if I consider the party to be acting deceptive. By not receiving
any financial benefits in assisting in cases no one can hold it above my head that I do it for the
monies. I do it because I belief in JUSTICE.
Therefore the Australian Electoral Commission really got themselves, so to say, a TRAPDOOR
SPIDER on their hand in that they took me on perhaps thinking that abusing the legal processes
would be a common issue to them to score convictions regardless of what JUSTICE demands.
Sure, I could have simply made known in my writings, when asked why I allegedly failed to
vote, that I had certain religious objections, but as I indicated extensively before the Magistrates
Court of Victoria at Heidelberg, it was not within the principles embedded in the Constitution
that the Australian Electoral Commissioner can set himself up, so to say, as judge and jury, as to
hold some kind of STAR CHAMBER COURT and then fine me $20.00, as any legal provision
by the Commonwealth of Australia would be unconstitutional. Hence, the conduct used by the
Australian Electoral Commissioner was in that regard also unconstitutional. Further, as I did set
out extensively in my ADDRESS TO THE COURT for the 16 and 17 November 2005 hearing
that the documents provided to me by the Court were deceptive and misleading as to my rights as
a Defendant. By this also causing the Court to be bias or seen to be bias.
The problem now faced is that a wrongful convictions were obtained against me (as set out
below I am AGGRIEVED) and even a recorded failing to vote on 1 January 2005, which is
Page 299
always New Year Day, and despite having notified the Court in writing that there never was on
that day any local council, State or Federal election I was refused (when I attended to the
Registry of the Magistrate Court of Victoria At Heidelberg) when lodging the appeal, any issue
of orders otherwise, (As such I have the Order that I failed to vote on 1/1/2005, which obviously
is a LEGAL FICTION and I intend to publish in my forthcoming books also.) that the issue of
DOUBLE JEOPARDY arises for this also.
It would be highly in appropriate if the Commonwealth Director of Public Prosecutions having

relied upon the averment rule, and having wrongly obtained a conviction now could use what he
learns of this ADDRESS TO THE COURT as to possible restructure his case and to try to get
somehow witnesses he did not use in the first place, who may or may not recall what occurred as
a weapon to try to still score some conviction.
This hardly is what the legal processes is about as for the Commonwealth Director of Public
Prosecutions abusing the legal processes, and indeed where the summonsed were issued that
relies upon the averment rule then where despite the ruling of the magistrate on 4 August 2005
the Commonwealth Director of Public Prosecutions refused to present all witnesses on 16 and 17
November 2005 then I view he has burned his options and can not now , so to say, take a second
bite in the cherry, to try to rectify what he failed to do in the first place.
The DOUBLE JEOPARDY rules is precisely for this that Prosecutors are not willy nilly going
to court and then when they fail to achieve a conviction can restart litigation time and again until
they may score a conviction, by seeking to circumvent whatever obstacle they had previously.
I stated my case and was denied any opportunity to question witnesses who may have been
present at the relevant times that the purported elections were held and view that the
Commonwealth Director of Public Prosecutions cannot now complain that by his own conduct
not to present witnesses and other evidence this was FATAL and the Magistrates Court of
Victoria ruling on OBJECTION TO LEGAL JURISDICTION on 17 November 2005 was
defective this as the magistrate was bound to deal with each and every issue I had raised to
support my OBJECTION TO LEGAL JURISDICTION and cannot ignore a single ground of
them and having ignored to make appropriate rulings then failed to invoke legal jurisdiction.
Further, that where there was a NO CASE TO ANSWER submission and by the prosecutor
seeking albeit perhaps misguided to rely upon the averment rule, despite of the 4 August 2005
magistrates ruling that he must present all relevant evidence, then clear the NO CASE TO
ANSWER submission was to have been upheld, as at no time did the Commonwealth Director
of Public Prosecutions ever address the issue of postal voting, pre-voting and religious objections
to vote and hence had not made out a case that there was a case to answer.
The refusal by the magistrate to provide a written Reason of Judgment also ought to be taken that
somehow the magistrate denied JUSTICE in that regard as I was at the very least entitled to
know why I was convicted and with reasons why my evidence was not accepted where there was
such a gross failure by the Commonwealth Director of Public Prosecutions to prove beyond
reasonable doubt that I had not voted or was not required to vote.
The issue then is also that in view that there are orders on foot for the magistrate of 4 December
2002 ordering, upon the submission of the Commonwealth Director of Public Prosecutions that
the constitutional issues are to be decided by the High Court of Australia, which the
Commonwealth Director of Public Prosecutions failed to pursue, even so having the carriage and
duty to prove jurisdiction, even where constitutionally challenged, then this order consented to
by me and neither parties having appealed prevented the magistrate on 16 and 17 November
2005 in any event to hear and determine the case. This, I did make known to the Court then but it
was ignored.
A a self educated “constitutionalist” with the objections on foot and they remain on foot because
of the orders of 4 December 2002 all legislation objected against remain ULTRA VIRES and
Page 300
therefore it is not merely some issue as perhaps the Commonwealth Director of Public
Prosecutions to seek to withdraw the ill conceived charges against me, as even if the
Commonwealth Director of Public Prosecutions seeks to abort the case he is still faced that
constitutionally the relevant legislative provisions, the proclamation and the writs which all were
disputed remain ULTRA VIRUS.
As such, I view, the onus is upon the Commonwealth Director of Public Prosecutions to achieve
some legal determination from the High Court of Australia as to the validity or invalidity of what
was objected against before the Commonwealth Director of Public Prosecutions can even
contemplate to withdraw any charged which clearly were ill conceived as Section 245 of the
Commonwealth Electoral Act 1918 in any event excuse any person not to vote upon religious
grounds. And no religious test can be done by the Commonwealth Director of Public
Prosecutions about this as this is strictly prohibited by Section 116 of the Constitution and by the
Constitution in general as this is embedded in the Constitution.
HANSARD 2-3-1898 Constitution Convention Debates

Mr. SYMON.-
The next point is that this is an amendment to secure an amendment of the Constitution in
case the Federal High Court, which is the body in whom we repose the custody and care of
our liberty from all kinds of legislative and executive encroachments, decides, in regard to
a particular law of the Commonwealth, that it is ultra vires. If the question is of sufficient
importance to warrant an amendment of the Constitution, let the Constitution be amended
under the provision of clause 121 in the ordinary constitutional way. Why not?
And
Mr. SYMON.-
If you want to amend the Constitution, amend it; but if you are dealing simply with a law
declared to be ultra vires, then I say that the states should be treated equally with the
Commonwealth, and it should be open to their particular citizens to say whether or not
they approve of the proposed alteration of the law. But you would introduce the greatest
complication into the Constitution by doing anything of the kind. An amendment of the
Constitution is a matter of grave importance, and to say that a Commonwealth law declared
to be ultra vires by the High Court is to be placed in a different position, and is to be
treated in a special way, in which a law of a state declared to be ultra vires is not treated, is
grossly unfair. You must, to be just, deal with both the states and the Commonwealth upon
the same method in regard to alterations of the Constitution.
Mr. HIGGINS.-Suppose the sentry is asleep, or is in the swim with the other
power?
Mr. GORDON.-There will be more than one sentry. In the case of a federal law,
every member of a state Parliament will be a sentry, and, every constituent of a state
Parliament will be a sentry. As regards a law passed by a state, every man in the
Federal Parliament will be a sentry, and the whole constituency behind the Federal
Parliament will be a sentry.
And
Mr. GORDON.-We must postulate of all our Parliaments that they will not pass
laws which are ethically indefensible. We must also postulate that they will pass laws
Page 301
which may do injuries to individuals; but I contend if any serious individual injury is done,
or any injury is done to a number of persons whose interests really require to be protected,
the state will intervene and assist them, on the one hand, if it is an infringement by the
Federal Parliament. On the other hand, the Federal Parliament will intervene and assist
them if it is an infringement by the state Parliament.
And
Mr. GORDON.-Well, I think not. I am sure that if the honorable member applies his
mind to the subject he will see it is not abstruse. If a statute of either the Federal or the
states Parliament be taken into court the court is bound to give an interpretation according
to the strict hyper-refinements of the law. It may be a good law passed by "the sovereign
will of the people," although that latter phrase is a common one which I do not care much
about. The court may say-"It is a good law, but as it technically infringes on the
Constitution we will have to wipe it out." As I have said, the proposal I support retains
some remnant of parliamentary sovereignty, leaving it to the will of Parliament on either
side to attack each other's laws.
And
Mr. GORDON.-If the law only affected a few individuals, the state might not intervene,
but it is possible that a law referring to only a few individuals may involve the benefit of
the whole of the community.
[start page 1683]
attacked. It might injure a few individuals, but that might be to the benefit of the whole.
Or if it were not, the party whose area of power was infringed on would attack if.
And

Mr. HIGGINS.-What I mean is: There may be an act done by the federal power
which is illegal.
And
Mr. DEAKIN.-He could not paralyze the law unless it ought to be paralyzed.
And
Mr. BARTON.-Our civil rights are not in the hands of any Government, but the
rights of the Crown in prosecuting criminals are.
And
[start page 1685]

Page 302
Mr. GORDON.-Even that embraces a very large body of rights, and the principle is the
same. We have to rely in many of our relations on the probity of the Attorney-General, on
the probity of the Parliament, or, to go further down, on the probity of the community.
Upon all these grounds I contend that the amendment is one that ought to be passed. It
leaves the whole executive power open to attack. Once a law is passed anybody can say
that it is being improperly administered, and it leaves open the whole judicial power
once the question of ultra vires is raised.
And
Mr. WISE.- about ( In a book prepared by you, sir, entitled A Manual of Reference for
the use of Members of the National Australasian Convention, to which frequent reference
has been made, the matter is further dealt with. You say, at page 126, in words that I would
like to adopt as part of my argument:- )
Public attention is probably directed to other matters, and the question has, in
many cases, shrunk into its native insignificance; and "it is to the interest of
every man who wishes the Federal Constitution to be observed that the
judgments of the federal tribunals should be respected, and they take it that the
courts are the protectors of the federal compact, and that the federal compact is,
in the long run, the guarantee of the rights of the separate state."
Again;
Once a law is passed anybody can say that it is being
improperly administered, and it leaves open the whole
judicial power once the question of ultra vires is raised.
Therefore, as the framers of the Constitution referred to, as a “sentry” I have every right to
object to legislation and any part thereof I deem unconstitutional (in conflict with constitutional
limitations, etc)
Therefore, while the Australian Electoral Commission used lawyers and abused the legal
processes to prevent my objections to be heard otherwise before the Courts, I for one expected all
along that the Australian Electoral Commissioner would, so to say, pull out all stops to seek
some kind of revenge against me for having exposed the rot in the election and pursue me for
allegedly failing to vote.
I also expected that because I am not a lawyer the lawyers engaged for and on behalf of the
Commonwealth of Australia would likely consider me to be below their stature (level) and likely
ignore whatever I was placing before them.
After all in over two decades in the Courts I have experienced this time and again by many
lawyers regardless if they are barristers or judges.
Alice Carter about the Family Court of Australia;

(Alice Carter also acted as legal adviser for the Northern Territory)
“unfortunately, much of the proceedings I witnessed were repetitive, and general

disorganised,..”
“Further more the court was disorganised as many files were missing and cases were
adjourned early as many counsel failed to turn up.”

Page 303
“I am now able to understand the general public’s fear of going to court and facing judges;
I too, was overawed by the excessive formality and surprised by the appearance, at least of
the judges’ authoritarian and patronising attitude towards others in the court room.”
Likewise often other lawyers , so judicial officers are found to take this kind of conduct.
Indeed, I have had judges who simply altogether ignored my ADDRESS TO THE COURT and
hand down a Reason of Judgement that the Full Court on Appeal makes clear failed to
appropriately consider what I had stated in the ADDRESS TO THE COURT, and grand the
appeal.
In this case, I commented to the magistrate that he appeared to me not to have read the
ADDRESS TO THE COURT, but the magistrate insisted he had, this while the counsel for the
Commonwealth Director of Public Prosecutions indicated not going to bother to read it. As I
explained to the magistrate I cannot force the counsel for the Commonwealth Director of Public
Prosecutions to read the material but I nevertheless can rely upon it.
The ADDRESS TO THE COURT extensively detailed also that there was a 4 December 2002
order by the magistrates Court of Victoria, at Heidelberg to adjourn matters upon the submission
of the Commonwealth Director of Public Prosecution (I consented to) for the High Court of
Australia first to deal with the constitutional issued I had raised as an OBJECTION TO
LEGAL JURISDICTION. Also, the ADDRESS TO THE COURT did refer on pages 2 and
3;
QUOTE
The Prosecutor since then pursued another charge of “failing to vote” in regard of a purported 9
October 2004 federal election, which came before this court on 4 August 2005, and again I made
my OBJECTION TO LEGAL JURISDICTION and for this the Court directed a special
hearing to be held on 16 November 2005. it was after the hearing that I discovered from the
registrar that in fact both cases had been before the Court albeit I am not aware that the Court on
4 August 2005 made such a ruling and discharged the 4 December 2003 Orders for this purpose.
[ 1275] 3 Edward I {State of Westminster the First} C.V. whose law, adopted and enacted
in the Imperial Acts Application Act 1980 –
PART II – TRANSCRIBED ENACTMENTS STATES:
- And because elections ought to be free, the King commandeth upon
great fortfeiture, that no man by force of arms, nor by malice, or
menacing, shall disturb any to make free election.
As already set out in the previous mentioned submissions, there are no FREE ELECTIONS,
when unconstitutionally police officers, fire brigade officers, soldiers and numerous others who
are putting their lives on the line are denied to stand as a candidate unless they first resign their
position. Where judges are forced to resign their judicial office to be able to stand as a candidate
in a federal election even so this is not constitutionally required.
In my view, any judicial officer with any common sense will reject any charges as being
vexatious and an abuse of the legal processes as unless and until elections are held in the manner
intended by the Framers of the Constitution and in accordance with all relevant laws then the
Court cannot in that regard enforce any election issue against those who refuse to vote.
The Hon. I.A. ISAACS: It does not prevent such a person from being elected!

Page 304
As such, the holding of a seat rather then the right to be elected was the issue and only regarding
a candidate who was having a disqualification in that regard.
As they also stated;
offices!
certainties.
certainty!
position.
Again;
offices!
A person elected does not hold the office elected for unless the person has accepted the seat in
parliament elected for. As such, there is and cannot be a conflict of any person holding an “office
of profit” to be excluded from standing as a candidate as standing as a candidate itself does not
include holding the office, as the person may be elected and then decide not to accept the seat
elected for, because the political party was not elected into government and as such the person
elected may find it undesirable then to take up the seat elected for.
A person who is a bankrupt but can have the bankruptcy period completed before required to
take up the seat in parliament would be eligible to stand as a candidate for an election as much as
anyone else is.
This makes it absolutely clear that they cannot be “chosen” by the Governor-General to be
appointed to a seat in the parliament unless they first get rid of any disability they are under,
being it having a bankruptcy period finish, having a criminal sentence of a certain length
completed, having disposed of any “office of profit” with the Commonwealth of Australia, etc.
It is absurd to demand people to quit their job to stand for an election where they have no
certainty to be elected, where in fact the Framers of the Constitution themselves made clear;
certainties.
Page 305
certainty!
Therefore, only if a person is actually elected and desires to take up the seat elected for then and
only then is the person obligated to dispose of the disability referred to in Section 44 of the
Constitution to be able to take up the seat in Parliament.
A person entitled to vote but residing overseas as a citizen of a foreign nation as such could stand
for election and be elected but could not take up the seat elected for unless first moving back to
the Commonwealth of Australia to be a “citizen” (resident) in the Commonwealth of Australia
and no longer overseas.
While the Italian elections allow for Members of Parliament to permanently reside in a foreign
country, as occurred in the recent Italian election, this is constitutionally barred from the
Commonwealth of Australia to occur. It also means that no Member of Parliament can have any
holdings in a foreign nation that would in effect create to this Member of Parliament to be
considered by that nation’s law to be a citizen of that nation being it for taxation purposes of that
country or otherwise. Yet, many Members of Parliament may hold overseas investments which
constitutionally may disqualify them from holding a seat in the Parliament.
The same with the so called “DUAL CITIZENSHIP” where the Commonwealth of Australia
legislated as to “DUAL CITIZENSHIP” but by this meaning “DUAL NATIONALITY” . No
Member of Parliament can poses “DUAL NATIONALITY” as this would be in conflict to the
constitutional provisions of Section 44 of the Constitution.
Section 44 of the Constitution is not subject to as the parliament may otherwise provide and as
such is in an, so to say, iron cast position and nothing the Commonwealth of Australia can do as
to circumvent those Section 44 constitutional provisions.
After more then one hundred years of Federation the High Court of Australia nevertheless has
never managed to competently resolve these and many other issues and I view this much because
those judges are not “constitutionalist” that they spend in principle years to research what the
Constitution is about, as I did, but merely are going along to whatever quick solution they may
deem suitable. The Sykes v Cleary and the Sue v Hill judgments in my view are a clear example
where the High Court of Australia failed to appropriately reflect the intentions of the Framers of
the Constitution and by this handed down judgments based on errors of constitutional law.
In my view, the fact perhaps that Heather Hill was of Pauline Hanson One Nation and Phil
Cleary an Independent may have rather been a reason why they were ousted.
For this also an OFFICE OF THE GUARDIAN is badly needed to stop this ongoing rot and to
seek to ensure that there is, so to say, a common denominator among all judgments that judges
do not hand down judgments because they happen to fancy it because it might perhaps advance
their own person cause but rather that the general public can have a better trust in its judges that
they hand down judgment based on reality and not upon a LEGAL FICTION.
As much as I can do the research and in my book have been able to set out in sequence what
went on during the Constitution Convention Debates and what was intended, then I view the
High Court of Australia judges likewise should have ensured to do so.
My 30 September 2003 published book set this out extensively in particularly also in
CHAPTER 11 PHIL CLEARLY DISSASTER, in the document; Chapter 11A Public
service.doc the entire history resulting to section 44 of the Constitution is shown;
ISBN 0-9580569-6-X
For example other matters relating to this also, such as in the in the following Chapters;

Page 306
Folder; CHAPTER 00 Set out about CITIZENSHIP
Document; Chapter 00A Set out about CITIZENSHIP.doc
Folder; CHAPTER 11 PHIL CLEARLY DISSASTER

Document; Chapter 11A Public service.doc
Document; Chapter 11E RESTRICTION FOR PUBLIC OFFICE.doc
Folder; CHAPTER 33 CONSTITUTION CONVENTIONS;

Document; 18970417@U738-831.doc
Document; 18970921@U932-1035.doc
Folder; CHAPTER 75 ADDRESS TO THE COURT

Document; Address to the court-8.doc
Document; Address to the court-9-UPDATE.doc
Document; CHAPTER 75 ADDRESS TO THE COURT.doc
Franklin Delano Roosevelt;

“In politics nothing ever happens accidentally! If something occurs, you can be sure
that it had been planned this way!”
As for a special hearing as to LEGAL JURISDICTION of the Court to hear and determine
certain matters, where the Defendant claims that albeit the Magistrates Court of Victoria at
Heidelberg has normal LEGAL JURISDICTION to hear and determine matters concerning
Commonwealth law, being invested also with Federal legal jurisdiction, it can however not hear
and determine matters of unconstitutional legislation and/or legislation that was not applicable at
the time of the alleged offence(s). Further, the State Court is not bound by Commonwealth law
(Commonwealth of Australia law), and neither can be dictated by Commonwealth law, as to how
to conduct its proceedings, such as Section 388 of the Commonwealth Electoral Act 1918 which
purports to avers the right of the informant, for the Commonwealth Electoral Commission as to
evidence, which is a clear denial of the right of the Defendant under the adversary system that the
informant prove his case, failing to do so there is NO LEGAL JURISDICTION and also NO
CASE TO ANSWER, as the lack of evidence to provide relevant evidence to prove that Section
245 of the Commonwealth Electoral Act 1918 in fact was applicable at the times of the alleged
offences then no alleged offences could be considered to have been committed, by there being no
evidence that Section 245 was at those times was applicable.
The courts legal position as to which legislation is applicable to its proceedings governing
the sought enforcement against alleged breaches of Commonwealth law is also questioned
and it is for the Prosecutor therefore to prove jurisdiction.
Because of the complex nature of the way LEGAL JURISDICTION comes about, if at all can
be invoked by any Court, including the High Court of Australia, certain basic issues need to be
addressed also.
“The House of Representatives… can make no law which will not have its full operation on
themselves and their friends, as well as the great mass of society.
This has always been deemed one of the strongest bonds by which human policy can
connect the rulers and the people together.
It creates between them that communion of interest, and sympathy of sentiments, of which
few governments have furnished examples; but without which every government
degenerates into tyranny."

Page 307
James Madison, (Federalist No. 57, 19 February 1788)
Quick & Garran's "Annotated Constitution of the Commonwealth of Australia" more accurately
and more meaningfully says that;
"A law in excess of the authority conferred by the Constitution is no law; it is wholly void
and inoperative; it confers no rights, it imposes no duties; it affords no protection.".
Some of the constitutional and other legal issues are set out below in this ADDRESS OF THE
COURT (Not set out in any order of importance neither setting out all important issues) as to
determine if the Court can in fact invoke any legal jurisdiction, as for example the Court could
hardly deal with any alleged breach of Commonwealth law against a person who has no electoral
rights and is not entitled to vote. other issues may still be raided by me during the course of
proceedings. I ought to be clear that unless a person is an elector, the Court simply cannot even
invoke any legal jurisdiction to commence any legal proceedings in that regard either. Likewise,
if the legislation is ULTRA VIRES, as I maintain, then the Court cannot invoke legal
jurisdiction on that basis either. And even if I am deemed to be an elector various other issues are
relevant to determine if the Court can invoke legal jurisdiction, such as if the trial will be by
State legislative provisions or has it contaminated by commonwealth legislation such as to avoid
NULLIFICATION powers, etc.
 What constitutes “JUDICIAL DETERMINATION”?

 Which Commonwealth legislation can apply?
 Can the Commonwealth dictate a State Court how it shall conduct its legal
proceedings?
 Has the Defendant a right to challenge any evidence the Prosecutor relies upon to
prove his case of not voting?
 Can the Prosecutor use Commonwealth legislation of averment to deny the Defendant
his legal right within state legal provisions to challenge any evidence the prosecutor
may wish to rely upon to support the charge of failing to vote?
 Is the onus upon the Prosecutor to prove beyond reasonable doubt that the Defendant
failed to vote?
 Has the Prosecutor the obligation to disprove BEYOND REASONABLE DOUBT
each and every excuse the Defendant may present against the charge?
 Is voting confidential?
 How is it establish if a person has failed to vote?
 Is there any record as to when a person has voted for one House but not for the other?
 Is a person entitled to vote for the Senate at any polling station, if not already having
voted by postal vote, within the State?
 Is a person entitled to vote for the House of Representatives at any polling station, if
not already having voted by postal vote, within the electoral division for which the
elector is enrolled for?
 Can a person vote separately for the Senate in one polling station anywhere in the
State while voting elsewhere, or postal voting, for the electoral division enrolled for,
for the House of Representatives?
 What legislative provisions, if any, denies an elector to vote for the House of
Representative at one polling booth and for the Senate at another polling booth?
 By what authority can the Australian Electoral Commissioner force an elector to vote
at the same visit to a polling station for both the Senate and the House of
Representatives?

Page 308
 By what authority can the Australian Electoral Commissioner force an elector to vote
with the same postal vote for both the Senate and the House of Representatives?
 How does the Australian Electoral Commission establish beyond any doubt that a
person has not voted or has failed to vote as to invoke Section 245 of the
Commonwealth Electoral Act 1918?
 Is Section 245(14) of the Commonwealth Electoral Act 1918 constitutionally valid
where it is in conflict of the constitutional prohibition for the commonwealth of
Australia to apply any religious test or practice?
 Did the Australian Electoral Commission ever notify the Defendant that he was not
required to vote if he were to rely upon religious beliefs not to do so?
 To what extend, if at all, are Sections 6.1, 13 of the Criminal Code Act 1995 (Cth)
Act No. 12, 1995, as amended, applicable?
 Is Section 388 of the Commonwealth Electoral Act 1918 applicable?
 Is compulsory voting constitutionally permissible?
 Is it constitutionally permissible to use the preference of a vote for other purposes
other then to determine the election of candidates?
 Is it constitutionally permissible to use the voting to financial reward a candidate?
 Is it constitutionally permissible to base a persons deposit (of being a candidate) upon
the percentage of votes received?
 Is it discriminatory to candidates to refund a deposit upon basis of percentage of first
preferences obtained?
 Can the Court proceed with hearing the case considering the Australian Electoral
Commission already imposed a fine and extracted statements of the Defendant, and
without notifying the Defendant that such statements (information/details) can and
may be used against him in subsequent proceedings, and thereby denied the
Defendant NATURAL JUSTICE and a FAIR AND PROPER TRIAL.
 Where the Registrar of the Court provided false, misleading and or deceptive material
to the Defendant, with the summons, then can it be held the Court has shown to be
bias against the Defendant?
 To what extend, if any, is are the provisions of the Australian Citizenship Act 1948
ULTRA VIRES?
 The usage of purported Commonwealth electoral rolls rather then what ought to be
used being the State electoral rolls, as electors are already (by State legislation)
qualified to vote.
 Was the proclamation constitutionally and/or otherwise legally validly published?
 Were the writs constitutionally and or otherwise legally valid?
 What is required to invoke any Commonwealth legislation for elections to be held,
voting issues, etc?
 What prior process is required to be able to issue writs for general elections?
 Is the Special Gazette S421 appropriately worded to reflect being printed by the
“Government printer”?
 Was the Proclamation validly published?
 What is required to be able to issue writs?
 What is “citizenship” (“State citizenship”, “Australian citizenship”, “Commonwealth
citizenship”) within constitutional meaning?
 How does one obtain “citizenship”?
 What is “citizenship” within constitutional meaning?
 What is the difference between State citizenship and Commonwealth citizenship?
 Who has the power to legislate regarding citizenship?

Page 309
 How does the Racial Discrimination Act (Cth) relate to deny any person citizenship
and so the electoral rights (Franchise)?
 The twice voting, Senate and House of Representatives, versus one charge of “failing
to vote” for each particular general election
 Can the Commonwealth legislate to deny an elector to vote?
 Can enrolling be made compulsory?
 Can voting be made compulsory?
 Who is constitutionally entitled to vote or not.
 Who can be deprived of voting?
 When/how can one obtain the right to vote?
 Did the Framers of the Constitution (the Constitution Convention Bill 1898) that
any person not having the Australian nationality is entitled to vote?
 Does one have to be an Australian national to be able to vote in Federal elections?
 Can a Candidate be forced to vote for his opponents?
 Is a candidate denied NATURAL JUSTICE if force to vote for his/her opponent(s)?
 How do past Authorities (judgments) apply to this case where they failed to consider
the Hansard records of the Constitution Convention Debates, if at all?
 What constituted the Australian Act constitutional validity within Section 51(xxxviii)
powers of the Constitution?
 What is by DUE PROCESS OF LAW?
 Can the court nullify commonwealth legislation?
 ETC, ETC. ETC.
The mere fact that the Defendant is canvassing the LEGAL JURISDICTION of the Court
(including upon certain constitutional issues) itself ought to point out that no Court ever before
did appropriately conduct any hearing in regard of any Defendant allegedly having failed to vote.
While this may appear to be a considerable misstatement, in the end, anyone would have to come
to the conclusion this to be so. It is simply that no Court in the Commonwealth of Australia ever
canvassed what really was constitutionally appropriate. Merely, it was “assumed” to be in a
certain manner. For this, the Defendant will have to start from basics to set out matters.
END QUOTE
Again;
 Did the Australian Electoral Commission ever notify the Defendant that he was
not required to vote if he were to rely upon religious beliefs not to do so?
Also at page 58
QUOTE
I have compiled this document (albeit not being conclusive, as to do so would take reams of
paper), including quotations of Joint Standing Committee on Electoral Matters hearings,
Authorities, and others as to provide as much as possible a comprehensive set out about the back
ground of matters, and why I OBJECTS TO THE LEGAL JURISDICTION of the Court,
including on constitutional grounds, for the Magistrates Court of Victoria to hear and determine
the charges against me within section 245 of the Commonwealth Electoral Act 1918.
END QUOTE
Also at page 60;
QUOTE
JSCEM transcript 16 August 2002;
CHAIR—In terms of the electoral ombudsman, in submission No. 39 Dr Amy
McGrath recommended the appointment of an electoral ombudsman; in your
submission, No. 66, the AEC indicated it does not support that. Could you outline why
you do not support the appointment of an electoral ombudsman?
Page 310
Mr Becker—Frankly, I think we have got enough policemen around the place. We

have already had our own ombudsman involved in an investigation that we referred
to it, and then they changed it to an investigation of their own motion. We have the
AFP, the DPP, the Ombudsman, ANAO, JSC, CJC—how many bodies of this nature do we
want? Who is going to guard the guardian? How far do you go? I just think it is totally
unnecessary.
END QUOTE
At page 96
QUOTE
I have clearly OBJECTED to the legal jurisdiction of the Court to hear and determine matters
within Section 245 of the Australian Electoral Act 1918, including by this I rely upon
constitutional grounds. However, the onus is upon the Commonwealth Director of Public
Prosecutions to prove to this Court in the first place that Section 245 in fact is applicable at all.
After all, Section 245 does not apply every day of the year but can only be invoked provided a
string of conduct takes place that results to Section 245 to be applicable. It is then for me to
counter act the validity (constitutionally or otherwise) of Section 245 not to be applicable.
If Section 245, for whatever reasons, can not be held to be applicable in regard to each or
every charge, then the Court would have no legal jurisdiction to hear and determine the
charges.
It is not relevant for the purpose of exercise of jurisdiction if I do or does not admit to having
voted, as that is an issue that would only be relevant if the Court were to dismiss the
OBJECTION OF LEGAL JURISDICTION, pending of course any appeal that may follow.
Therefore, the burden to prove Section 245 is invoked must rest with the Commonwealth
Director of Public Prosecutions.
END QUOTE
What I did in fact foreshadow was the issue of religious ground, as I did refer to “Did the
Australian Electoral Commission ever notify the Defendant that he was not required to
vote if he were to rely upon religious beliefs not to do so?” and “If Section 245, for whatever
reasons, can not be held to be applicable”, just that I left it to the Commonwealth Director of
Public Prosecutions to work out for himself if he was going to address this issue or not and for
this was to call witnesses.
Section 245 Commonwealth Electoral Act 1918
(14) Without limiting the circumstances that may constitute a valid and sufficient reason
for not voting, the fact that an elector believes it to be part of his or her religious duty
to abstain from voting constitutes a valid and sufficient reason for the failure of the
elector to vote.
It was not my job, so to say, to wake up the Commonwealth Director of Public Prosecution and
to advise him how to do his job. Indeed, the mere fact that I provided such extensive material by
way of ADDRESS TO THE COURT, then I did more then anyone could have expected from
an unrepresented Defendant
I expected all along that the lawyers acting for the Commonwealth Director of Public
Prosecution would be arrogant and refuse to have any kind of proper communication with me,
despite that I in fact requested this on occasions. I also expected the magistrate to be arrogant and
otherwise ignorant to what my rights were and pretend to have read the ADDRESS TO THE
COURT but likely if not all then generally ignore it.
I had no doubt that if I was to come before a competent judicial officer then my OBJECTION
TO LEGAL JURISDICTION would be upheld, however I also contemplated that if the judicial
Page 311
officer was to, so to say, play along with the Commonwealth director of Public Prosecutions then
the judicial officer would place his//her own competence in question in light what was stated in
the ADDRESS TO THE COURT.
The issue was not for the judicial officer (in this case the magistrate on 16 and 17 November
2005 to specifically declare Mr. John Howard not to be elected, but rather that he was to declare
that in view of the evidence before the Court there was no valid proclamation published on 8
October 2001 and there were no valid writs issued on 8 October 2001 and as such there was no
valid election held for either of the Houses of Parliament. Likewise so in regard of the purported
2004 federal election. The fact that this would amount to not a single Member of Parliament
having been duly and properly elected according to constitutional and other relevant legal
provisions, was elected and the Commonwealth of Australia became a de facto
DICTATORSHIP, a BANANA REPUBLIC is something that should not be of concern to the
judicial officer as being a consequence as to prevent JUSTICE to be provided to me to declare
the law as it is.
As was made clear about publications of Proclamations governed by the Constitution, such as in
Section 32 of the Constitution;

Mr. BARTON.-
This is embedded in the Constitution and the Commonwealth of Australia, so the federal
parliament has no constitutional powers to interfere with this section what so ever.
Hence, where there was no proclamation published on 8 October 2001 then the Parliament was
never prorogued and the House of Representatives was never dissolved when it was
“ASSUMED” it had been.
As set out below there is no proper system governing procedures involved to set in train an
election process and to supervise this to occur in a proper manner, and hence the Australian
electoral commissioner being both in supervisionary capacity and conducting the election has a
conflict of interest and as it appears to me willing to abuse the legal processes to ensure his
unconstitutional and illegal elections will prevail.
As I expected that no judge, so to say, would stick his neck out to stand up for JUSTICE, where
this might perhaps jeopardize his future career prospects, then I expected, and experienced at
every turn of events to be obstructed by the judiciary also and Rules and regulations of the Court
to be abused and misused to railroad whatever application I might pursue before the Courts.
Hence, I expected that the Australian Electoral Commission then would pursue me for failing to
vote and then he would in fact provide me with the vehicle he otherwise prevented as to place my
numerous objections before the Courts.
My concern was to give a lot of details but somehow avoid that it is too open and that I do not,
so to say, awake sleeping dogs. Hence, while raising religion as an issue I sought not to make it
too obvious as it was not my obligation to do so.

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After all, I am not bound to give any explanation at all unless for the OBJECTION TO LEGAL
JURISDICTION was appropriately disposed of, as I was entitled to. Also, as the magistrate on
4 August 2005 directed that if the OBJECTION OF LEGAL JURISDICTION were to fail
then and only then was the Commonwealth Director of Public Prosecutions required to provide
all relevant evidence he desired to rely upon in support of the charge so that I could prepare my
case against the charges.
However, on 17 November 2005, even so I made this known to the presiding magistrate an
adjournment for this was refused and no material was provided to me after the magistrate
overruled the OBJECTION TO LEGAL JURISDICTION by refusing to deal with parts of the
OBJECTION TO LEGAL JURISDICTION, and other then some minimal documentation
provided prior to the hearing commencing on 16 November 2005 of the OBJECTION TO
LEGAL JURISDICTION, no documents of any nature were provided to me, after the
OBJECTION TO LEGAL JURISDICTION matters was deemed completed by the presiding
magistrate who them immediately commenced with hearing the matters about charges, even
while I stood at the Bar table, as he seemed to be in such a hurry not even following proper
protocol that an unrepresented Defendant must step aside from the Bar table to be made aware of
the charge and to be asked for his/her plea.
Therefore, there was neither any time to prepare my defence and to highlight other issues in
further details. Therefore, the Commonwealth Director of Public Prosecutions can only blame
himself for having rushed through the case and by this robbing himself of the opportunity to
discover what really the case was about. While this might be the common practice to
unrepresented Defendants to deny them a FAIR and PROPER trial, in my case it was FATAL
to the case of the Commonwealth Director of Public Prosecutions, as while he scored a
conviction is was a hollow victory, so to say, as it wasn’t worth the paper it was written on. It
might be the conduct of the Commonwealth Director of Public Prosecutions to, so to say, burn
unrepresented Defendants in such manner and get away with it time and again but in this case the
conviction is without legal force, as set out further in this ADDRESS TO THE COURT also.
After all, one the magistrate on 4 December 2002 adjourned the charge in regard of the 2001
alleged “failing to vote” for the matter to be dealt with in regard of OBJECTION TO LEGAL
JURISDICTION, then no magistrate had the legal power to simply still proceed with the charge
and ignore the outstanding order! And as the second charge regarding the purported 2004
election relied also upon the issues raised in the 2001 case, the magistrate himself made known
about on 17 November 2005, then neither was then a legal jurisdiction to deal with this matter
with the 4 December 2002 orders still being on foot.
Therefore, the magistrate on 17 November 2005 overruling my OBJECTION TO LEGAL
JURISDICTION was of no legal value as he had no such legal powers to ignore the 4
December 2002 orders.
While there appear to have been celebrations of 10 years of Howard government and Mr. John
Howard being 10 year Prime Minister, the legal reality is that because of my OBJECTION TO
LEGAL JURISDICTION that was subject to the orders of 4 December 2002 challenging the
validity of the 2001 federal election then as the Framers of the Constitution made clear, the
provisions were ULTRA VIRES. Hence, the purported election was ULTRA VIRES and by
this its results.
While the Commonwealth Director of Public Prosecutions seems to have spend a lot of effort to
pursue me for allegedly “failing to vote” he did not at all do so upon my complaints to him about
the invalid elections, the conduct of Mr. John Howard (and his fellow Members of Parliament
involved in the matter) to unconstitutionally and illegally authorised a murderous invasion into
Page 313
another sovereign nation that may constitute TREACHERY within the meaning of section 24
AA of the Crimes Act Cth) neither did the Australian Federal Police bother to act upon my
official complaint. As such, it appears to me that the Commonwealth Director of Public
Prosecutions is not the least interested to uphold the law irrespective of the position of the person
but rather seems to be a political football for the Government and not bothering to deal with real
serious offences.
As I have stated in the past Osama bin Laden does not need any terrorism tactics to be used to
gain control of the Commonwealth of Australia, as simply all he need is some competent lawyers
to show there is no validly elected Government and so basically it is as in 1788 when British
Rules was established, now anyone can take control and install his/her authority.
Sir JOHN DOWNER.-I know that my right honorable friend, judging probably from the
time I am taking now, thinks that in such a case I would take a long time, if I were in the
Senate. I admit that his surmise is quite right in my case. I admit there are persons on
whom this terrorism could not be practised, or on whom, if practised, it would probably
not be effective. But I am thinking of persons of weaker minds and wills, and I say that, as
far as this Constitution is concerned, it is absolutely necessary to put some provision in this
Bill which will strengthen the Senate and prevent it being intimidated in the way indicated.
We have been frittering away the first principles of the Federal Constitution long enough.
The only time the Framers of the Constitution referred to “terrorism” was when it referred to
the government of the day preventing the Senate sufficient time to debate bills.
We all know are well aware that this is precisely of late occurring, where the Senate has bills
rushed through which denies proper debate.
It is this kind of “terrorism” that also results to unconstitutional legislation being enacted.
It are the Courts therefore that must act as GUARDIANS and do not tolerate to be part of such
form of terrorism upon the general public and rather then to go along convicting me will take the
opportunity to fulfil the oath of office and ensure JUSTICE PREVAIL!
Going along with whatever is done wrong as to seeking to avoid, so to say, to rock the boat, by
not wanting to upset a certain government, in my view, is alike sedition.
Judicial officers are appointed to act on behalf of the general public and to ensure that the
democracy is and remain alive. There fore to ignore abuses of power and to go along with it
would be to undermine the very foundation of society that is based upon a proper law
enforcement, even against the rich and the powerful. This, as no one should be deemed to be
above the Constitution. Indeed, the Framers of the Constitution made clear that not even the
High Court of Australia was above the Constitution but could only decided cases within the
powers provided for within the Constitution.
I might not be particularly popular by High Court of Australia judges for stating this, but that is
the least of my concerns, as after all if people have to be afraid for speaking out and wanting to
have constitutional rights embedded in the Constitution protected, then why have a Constitution
at all I may ask!
As much as Members of Parliament are entitled to refuse to vote, refuse to attend to a voting then
I view the same applies to any (deemed) elector. So often Members of Parliament “abstain”
from voting and I take the position that if legal representatives can do so then their constituents
have the same right, regardless of what Section 245 of the Commonwealth Electoral Act 1918

Page 314
otherwise may indicate. One cannot have that the voting system for politicians is one system and
that the constituents have another system. The very POLITICAL LIBERTY enshrined in the
Constitution is that a person has the right to vote but cannot be forced to vote, and certainly not
when it involves warmongering candidates who may by the preference vote obtain votes of those
who oppose warmongering and the cold blooded murder of innocent people in another “friendly”
sovereign nation.
I challenge also the validity of the Application of this Section 388 of the Commonwealth
Electoral Act 1918 in a State Court as it conflicts with the judicial processes of a State Court, as
further set out in this ADDRESS TO THE COURT, in any event, the averment rule does
provide for “in the absence of evidence to the contrary” and where therefore I have
overwhelmingly contested the validity of the election process and indeed the proclamation, writs,
etc, then in that regard the averment rule can no longer be applied in any event. After all, the
evidence is and has been all along that I do not have “State citizenship” and so neither
“Australian citizenship” and by this I am not obligated to vote and as such the averment rule does
not come in play for this either.
If there was no proper process to hold any election then the averment rule for this also does not
come into play.
While the magistrate relied upon the averment rule that the Commonwealth Director of Public
Prosecution did not have to prove jurisdiction this is not what the averment rule is about.
the averments of the prosecutor contained in the

information or complaint shall be deemed to be proved in the
absence of evidence to the contrary.
Therefore, where there is contrary evidence before the Court that the Proclamation and writs
were defective then there is clearly evidence to the contrary that there was no valid election being
held.
To me it appeared that the magistrate being well aware that the Commonwealth Director of
Public Prosecutions has failed to prove his case, such as citizenship, etc, then simply elected to
disregard addressing those issues, even so for purpose of the OBJECTION TO LEGAL
JURISDICTION the Court could not do so.
For the record, the State of Victoria has specifically legislated for the averment of evidence to
prove matters alleged in regard of off-shore explorations but not in regard of other matters and as
such Section 388 of the Commonwealth Electoral Act 1918 of averment is in conflict with State
legislative provisions and cannot be applied by any State Court exercising federal jurisdiction,
this, as the State Court legal procedures cannot be interfered with by Commonwealth legislation,
as the Delegates of the Constitution Convention in the creation of the constitution made clear
when setting out what “Due process of law” was meaning, as well as in regard of appeals. It was
for this also that the magistrate on 4-8-2005 ordered the Commonwealth of Director of Public
Prosecutions to provide all relevant material to the Defendant (to me) subsequently to the Court
were to find that the Court had legal jurisdiction! Neither party appealed that decision, and as
such the magistrate having ruled Section 388 of the Commonwealth Electoral Act 1918 not
being applicable as such by this then this decision remains on foot. Likewise so, that the
magistrate of the Magistrates Court of Victoria at Heidelberg on 4 December 2002 on submission
of the Commonwealth Director of Public Prosecutions directed the matters to be adjourned
pending the constitutional issues to be determined by the High Court of Australia. (See;
Judiciary Act 1903 (Cth) Part VII—Removal of causes, 40 Removal by order of the High
Court) Neither party appealed this decision! As such, the onus rest upon the Commonwealth
Director of Public Prosecutions to prove jurisdiction which was all along opposed by me. the
Page 315
failure by the Commonwealth Director of Public Prosecutions to obtain a ruling its favour cannot
be circumvented by a subsequent judicial officer (magistrate and or judge) to ignore this
outstanding order! I am entitled as a Defendant to the benefits of the orders obtained, this
however so far was denied.
"Although there formerly was a conflict of authority with respect to the proof of jurisdiction or
the lack of jurisdiction, the Supreme Court has declared that one who claims that the power of
the court should be exercised in one's behalf must carry throughout the litigation the
burden of showing that he or she is properly in court. Accordingly, if a party's allegations
of jurisdictional facts are challenged by an adversary in any appropriate manner, he or she
must support them by competent proof, and, even where they are not so challenged, the court
may still insist that the jurisdictional facts be established or the case be dismissed, and for that
purpose the court may demand that the party alleging jurisdiction justify his or her allegations by
a preponderance of evidence. However, it is not mandatory upon the court to call upon the party
asserting jurisdiction to establish it by proof, in the event that the party's jurisdictional averments
are not properly challenged by the adversary, and, in such a case, application may be made of the
rule that proof in support of jurisdictional averments need not be offered where the
defendant does not formally plead to [challenge] the jurisdiction." § 2.455, Federal
Procedure
Due to what I perceived to be a gross miscarriage of JUSTICE that resulted to a conviction

appealed against and which case is now DE NOVO before this Court, nevertheless to avoid
simular if not the same and other errors in law to occur I have done some research in these
matters and present some critical details. The magistrate even failing to hand down a “Reason of
judgment” as to upon what basis the conviction was made.
The carriage of proving JURISDICTION clearly lies with the Commonwealth Director of
Public Prosecutions and if for example the Commonwealth Director of Public Prosecutions fails
to prove that Section 245 of the Commonwealth Electoral Act 1918 is in any way at all not
legally enforceable then the Court cannot proceed on hearing the matter upon its MERITS, as
there is then NO CASE TO ANSWER.
The court simply cannot entertain some charge that in regard of which it cannot invoke legal
jurisdiction. It is not sufficient to prove that the Court has federal jurisdiction but that the alleged
offence can invoke federal jurisdiction for the Court to entertain any hearing as to the alleged
offence.
For example, a court may have powers to deal with damages against another driver, however if
the Driver suing the other driver has no legal status to be able to sue, being it having been declare
bankrupt or otherwise not being the owner or being authorise to sue on behalf of the true owner
then the Court cannot entertain the matter for judicial determination against the other driver.
The Court in such a case could not simply ignore the objection by the driver being sued that the
other driver has no legal position to sue as the Court can only invoke jurisdiction upon what is
relevant to invoke such jurisdiction.
In the previous hearing before the magistrates Court of Victoria the magistrate on 17 November
2005 elected not to deal with certain issues relevant as for the Court to decide if it could invoke
legal jurisdiction and as such never could therefore have invoked legal jurisdiction where I had
OBJECTED TO THE LEGAL JURISDICTION of the Court from onset. A Court can only
invoke jurisdiction if it has competently discharged each and every element of the OBJECTION
OF LEGAL JURISDICTION, and failure to even dismiss any part of the objection prevent the
Court to invoke legal jurisdiction.

Page 316
The carriage of proving LEGAL JURISDICTION and that the Court can “INVOKE” LEGAL
JURISDICTION is upon the Director of Public Prosecutions who pursues the charges before
the Court. I (The defendant) have to do no more but to make objections.
A proper examination and consideration of what has stated in this document, aided by the
material already further on Court file, I view, there is absolutely no way this Court could possibly
invoke jurisdiction in regard of enforcement of Section 245 of the Commonwealth Electoral Act
1918 against me, but this is for the Commonwealth Director of Public Prosecutions to attempt to
prove otherwise.
JURISDICTION;
Lack of sufficient availability (to me) of case law and other Authorities in regard of certain issues
I have also relied upon American Authorities, such authorities can be used in aid of any deficient
Authorities existing in Australian legal matters.
Held by the Supreme Court of New South Wales where it was alleged that an offence was
against a law of the Commonwealth and that therefore a conviction under the law of a State was
bad. R v. Gates; Ex parte Maling, (1928) 41 C.L.R. 519; 2 A.L.J. 330.
The Court order issued by the Magistrates Court of Victoria issued a conviction not only to a 1 st
of January 2005 purported election, that never existed, but issued it as the Magistrate Court of
Victoria at Heidelberg even no such Court actually heard and determined this matter. This, as the
Magistrates Court of Victoria is a State Court that cannot hear and determine federal matters.
What is however is that the Magistrates Court of Victoria at Heidelberg “exercising federal
jurisdiction” heard and determined the case (rightly or wrongly) and as such its orders should
have refected that it was the “Magistrates Court of Victoria exercising federal jurisdiction”!
See also Section 39 Judiciary Act 1903-1950
This, as the orders are a federally enforceable order and applicable throughout the
Commonwealth, where as for example a person committed for a crime, such as burglary, in the
Magistrate of Victoria, if committing a simular crime in another state, say Queensland, and then
later is convicted in that State for a simular crime or other crime has no “prior conviction” where
as if the conviction had been in the State of Victoria for the later offence then a “prior
conviction” would be applicable for sentencing purposes. Likewise a person obtaining a traffic
violation under the laws of one State does not have this used as a prior conviction if convicted in
another State of subsequent traffic offences. Therefore, it is essential that it is established that the
Court dealing with the matter is a Federal court, a State Court or a State Court exercising federal
jurisdiction.
That there are difference in this is also made clear by some of the following authorities;
The High Court of Australia held that where a party pleads the non-application of a State Act
because of Commonwealth legislation then the State Court is exercising Federal jurisdiction.
Troy v Wrigglesworth (1919) 26 C.L.R. 305; 25 (1926) 38 C.L.R. 441; 33 A.L.R. 66.
Held by the High Court of Australia that the expression “Court or judge of a State” does not
include a Judge sitting in Chambers exercising the jurisdiction of the Supreme Court. Wilcox v
Donohoe, (1905) 3 C.L.R. 83; 12 A.L.R. 54.
Held by the High Court of Australia that the federal jurisdiction which is conferred on a State
Court by the section is subject to any limitations imposed by the laws of the State upon its state

Page 317
jurisdiction, unless otherwise expressly declared. Federated Saw-mill Timberyard and General
Woodworkers Employees Association v Alexander, (1912) 15 C.L.R. 308; 19 A.L.R. 22.
Held by the Full Court of the Supreme Court of Queensland that the police magistrate exercising
Federal jurisdiction is not an officer of a Federal Court within the meaning of this paragraph
(Section 39 of the Judicial Act 1903) R. v. Archdall and Others; Ex parte Taylor, 1919 St. R.
Qld 207; 13 Q.J.P.R. 22 C.L.R. 437 in which the High Court (Isaacs, Higgins, Gavan Duffy and
Ricch JJ ; Griffith CJ and Barton J dissenting) held that a Judge of an inferior Court of a State
invested with and purporting to exercise Federal jurisdiction is not an officer of the
Commonwealth within the meaning of s. 75 (v) of the Constitution.
Held by the High Court of Australia that a State Court, the appellated jurisdiction of which is
limited by a State Act, has no federal appellated jurisdiction beyond those limits. R. v. Whitfield
and Others’ Ex parte Quon Tat, (1013) 15 C. L.R. 689; 19 A.L.R. 97
Held by the High Court of Australia that under this section the Courts of the several States have
federal appellated jurisdiction, as regard the matters enumerated in ss75 and 76 of the
Constitution, to the same extent that, and subject to the same conditions as, under the State laws
they have appellated jurisdiction in matters to which State laws apply. Ah Yick v Lehmert,
(1905) 2 C.L.R. 593; 11 A.L.R. 306
Held by the High Court of Australia (Williams J.) that under this section 40 of the Judiciary Act
1903 the Attorney-General for the Commonwealth or a State may apply for the removal into the
High Court of a cause or part of a cause whether or not he is a party to the proceedings in which
the cause arises, and if the cause really and substantially arises under the Constitution or involves
its interpretation, the court MUST grant the removal as of right notwithstanding that the matter is
apparently concluded by authority. Any distinct and divisible question may be “part” of such a
cause within the meaning of this section. In re an Application by the Public Service Association
of N.S.W. , (1947) 75 C.L.R. 430
The fact that the magistrate on 4 December 2002 made orders upon the submission of the
Commonwealth Director of Public Prosecution that the matter was to be dealt with by the High
Court of Australia as to determine constitutional issues, and the Commonwealth Director of
Public Prosecutions failed to do so, who had the onus to prove the jurisdiction that I opposed
from onset, then the orders of the Magistrate on 16 and 17 November 2005 were ULTRA
VIRES as they were held in error of law (in defiance) where I (the Defendant) was denied the
benefits of outstanding Court determinations in the same matters.
Per Evatt J. ; Each question as to the limits inter se is involved where State Legislature is
challenged on the grounds that it contravenes s. 90 of the Constitution. Hopper v Egg and Egg
Pulp Marketing Board (Vic), (1939) 61 C.L.R. 665, at p 681; A.L.R. 249, at p 255
Per Evatt J.; Each question of the validity of the Commonwealth legislation in s51 of the
Constitution (and a fortiori in s. 52) necessarily raised a question as to the limits of
Commonwealth and State powers. Ibid at p. 682 C.L.R. and p 255 A.L.R.
Held that a State Court exercising federal jurisdiction when it erroneously applies
Commonwealth Act to subject matter before the Court. Commonwealth v Cole, (1923) 32 C.L.R.
602 and Commonwealth v Dalton, (1924) 33 C.L.R.. 452; 30 A.L.R. 85
Judiciary Act 1903 (Cth)

Page 318
39 Federal jurisdiction of State Courts in other matters
(1) The jurisdiction of the High Court, so far as it is not exclusive of the jurisdiction of any
Court of a State by virtue of section 38, shall be exclusive of the jurisdiction of the several
Courts of the States, except as provided in this section.
(2) The several Courts of the States shall within the limits of their several jurisdictions, whether
such limits are as to locality, subject-matter, or otherwise, be invested with federal
jurisdiction, in all matters in which the High Court has original jurisdiction or in which
original jurisdiction can be conferred upon it, except as provided in section 38, and subject to
the following conditions and restrictions:
(a) A decision of a Court of a State, whether in original or in appellate jurisdiction, shall
not be subject to appeal to Her Majesty in Council, whether by special leave or
otherwise.
Special leave to appeal from decisions of State Courts though State law prohibits appeal
(c) The High Court may grant special leave to appeal to the High Court from any decision
of any Court or Judge of a State notwithstanding that the law of the State may prohibit
any appeal from such Court or Judge.
Exercise of federal jurisdiction by State Courts of summary jurisdiction

(d) The federal jurisdiction of a Court of summary jurisdiction of a State shall not be
judicially exercised except by a Stipendiary or Police or Special Magistrate, or some
Magistrate of the State who is specially authorized by the Governor-General to exercise
such jurisdiction, or an arbitrator on whom the jurisdiction, or part of the jurisdiction,
of that Court is conferred by a prescribed law of the State, within the limits of the
jurisdiction so conferred.
39A Federal jurisdiction invested in State Courts by other provisions
(1) The federal jurisdiction with which a Court of a State is invested by or under any Act,
whether the investing occurred or occurs before or after the commencement of this section,
including federal jurisdiction invested by a provision of this Act other than the last preceding
section:
(a) shall be taken to be invested subject to the provisions of paragraph (a) of subsection (2)
of the last preceding section; and
(b) shall be taken to be invested subject to the provisions of paragraphs (c) and (d) of that
subsection (whether or not it is expressed to be invested subject to both or either of
those provisions), so far as they are capable of application and are not inconsistent with
a provision made by or under the Act by or under which the jurisdiction is invested;
in addition to any other conditions or restrictions subject to which the jurisdiction is
expressed to be invested.
(2) Nothing in this section or the last preceding section, or in any Act passed before the
commencement of this section, shall be taken to prejudice the application of any of sections
72 to 77 (inclusive) in relation to jurisdiction in respect of indictable offences.
From the above it already ought to be clear that a State Court, subject to certain provisions, can
exercise Federal jurisdiction.
While the authorities below are USA Authorities, the legal concepts nevertheless are of a general
nature that can be applied within the Commonwealth of Australia.
 JURISDICTION the power to hear and determine a case. 147 P.2d 759, 761. This power
may be established and described with reference to particular subjects or to parties who fall
into a particular category. In addition to the power to adjudicate, a valid exercise of
jurisdiction requires fair notice and an opportunity for the affected parties to be heard.

Page 319
Without jurisdiction, a court's judgment is void. A court must have both SUBJECT
MATTER JURISDICTION and PERSONAL JURISDICTION (see below). See also
territorial jurisdiction; title jurisdiction."
SUBJECT MATTER JURISDICTION refers to the competency of the court to hear

and determine a particular category of cases. Federal district courts have "limited"
jurisdiction in that they have only such jurisdiction as is explicitly conferred by
federal statutes. 28 U.S.C. §1330 [EDITOR'S NOTE: see also 40 U.S.C.S. §255] et seq.
See LIMITED [SPECIAL] JURISDICTION. Many state trial courts have "general"
jurisdiction to hear almost all matters. The parties to a lawsuit may not waive a
requirement of subject matter jurisdiction.
TERRITORIAL JURISDICTION the territory over which a government or a

subdivision thereof has jurisdiction, 147 P.2d 858, 861; relates to a tribunal's power
with regard to the territory within which it is to be exercised, and connotes power
over property and persons within such territory. 94 N.E. 2d 438, 440.
TERRITORIAL COURT a court established by Congress under Art. IV, Sec. 3, Cl. 2
of the Constitution, which gives Congress the power to make "all needful rules and
regulations respecting the territory or other property belonging to the United States."
370 U.S. 530, 543; 371 F.2d 79, 81. Above definitions from: Barron's Law Dictionary,
Fourth Edition.

The State Court is acting under normal legal procedures applicable to State Court rules and the
Commonwealth of Australia has no constitutional powers to interfere with this. It can only
provide legislation regarding certain matters provided they do not seek to interfere with the State
Courts legal procedures. Section 388 of the Commonwealth Electoral Act 1918 is clearly
unconstitutional, and so ULTRA VIRES, as it pursues a State Court to deny a Defendant of his
rights to have all relevant material placed before the Court to enable the Defendant to verify its
accuratesy.
Because the State of Victoria specifically legislated in regard of Sea exploration that there is an
averment of evidence, then clearly it underlines that without such legislation it cannot be done.
More over, the State of Victoria abolished the right of making an unsworn Statement by the
accused because the Parliament held that proceedings should be equal to both parties, and not
that the accused can cross examine the prosecutors witnesses at length and then himself avoid
being cross examined by making a unsworn statement. For this, the right of making an unsworn
statement was abolished. Hence, it would therefore be a denial of JUSTICE, if now the
Prosecutor could make allegations without needing to prove anything by using the averment rule.
It would, so to say, tip the balance of the scales over to be in favour of the prosecution and defies
what the Parliament of Victoria intended, as was stated in the Hansard records of their Debates.
While the matter is DE NOVO, it is essential that to avoid a

repeat of the judicial errors as occurred resulting to the
Page 320
convictions, certain matters are even more canvassed then
previously explored.
The magistrate in my OBJECTION TO LEGAL JURISDICTION refused to determine the
issue of “citizenship” and by his refusal failed to invoke any jurisdiction. This, as the magistrate
can only invoke jurisdiction having appropriately disposed of each and every element of the
objection and not ignore elements that cannot be overruled.
Mens rea
The Court, even if it were to decide that it can invoke legal jurisdiction, it then nevertheless
would in my view have extreme difficulties to try to convict me where I did everything
reasonably possible to seek to avoid this current problems. Few defendants, in particularly
unrepresented defendants, may ever pursue as an extensive research as to what is constitutionally
and otherwise legally applicable as I have to place my response before the Courts. The Court
therefore would be faced to assess if the alleged failure (if it were to conclude this had occurred-
not that I seek to indicate the Court may do so) was actually caused by the frustration caused by
the Australian Electoral Commission and tits legal representatives and others beyond the control
of the Defendant or that this case is one where there was ongoing a blatant disregard by the
Defendant to make any attempt whatsoever to comply with what is alleged legal requirements.
The horrific history of this case only could indicate that I did pursue numerous way to seek to
avoid any kind of conflicts but basically all I achieved was for the Australian Electoral
Commission to create some kind of OBSTACLE COURSE as to make it extreme difficult to
get any appropriate response to resolve matters in dispute.
The Court being a State Court exercising (if it concludes it can invoke legal jurisdiction) also has
to consider then that I have no prior criminal record and by the applicable State Sentencing laws
any purported first offence should not result in a maximum $50.00 fine in any event. A State
Court, regardless of exercising Federal jurisdiction, is bound by State Sentencing laws and
cannot have its legal processes interfered with by the Commonwealth of Australia in that regard.
For example, if the State Court of Victoria was to be granted jurisdiction of another foreign
nation to trial certain persons of breaches of law of that foreign nation then the State Court still is
guided by State Victorian sentencing laws and could not, so to say, impose a death sentence
regardless if the foreign nation itself would have legislation on foot for the death Sentence to be
imposed if a guilty verdict was obtained.
In regard of the Commonwealth of Australia enforcement of laws the Court would be entitled to
NULLIFY the law and refuse to convict, regardless if it was proven that I was to be deemed to
have been in breach of Commonwealth law, where the Court holds it to be unreasonable in the
circumstances to record a conviction, in the circumstances prevailing before the Court!
Mr. HIGGINS.-No-the Parliament. It will simply give Parliament the power to declare
under what circumstances and in what cases there shall be a discretion to have the trial in
any other state. The law as it stands in the present Bill is that the trial, as a matter of
constitutional law, shall be held in the particular state where the offence was
committed. I propose to enable the Federal Parliament to say that in certain cases and on
certain Contingencies, and with certain restrictions and limitations, the trial may be held in
some other place. I think that is simply another instance of trusting the Federal Parliament
to put the matter on the best basis.

Page 321
Mr. WISE (New South Wales).-The only class of cases contemplated by this section
are offences committed against the criminal law of the Federal Parliament, [start page
354] and the only cases to which Mr. Higgins' amendment would apply are those in
which the criminal law of the state was in conflict with the criminal law of the
Commonwealth; in any other cases there would be no necessity to change the venue,
and select a jury of citizens of another state. Now, I do not know any power, whether in
modern or in ancient times, which has given more just offence to the community than the
power possessed by an Executive, always under Act of Parliament, to change the venue for
the trial of criminal offences, and I do not at all view with the same apprehension that
possesses the mind of the honorable member a state of affairs in which a jury of one state
would refuse to convict a person indicted at the instance-of the Federal Executive. It might
be that a law passed by the Federal Parliament was so counter to the popular feeling of a
particular state, and so calculated to injure the interests of that state, that it would become
the duty of every citizen to exercise his practical power of nullification of that law by
refusing to convict persons of offences against it. That is a means by which the public
obtains a very striking opportunity of manifesting its condemnation of a law, and a
method which has never been known to fail, if the law itself was originally unjust. I
think it is a measure of protection to the states and to the citizens of the states which should
be preserved, and that the Federal Government should not have the power to interfere and
prevent the citizens of a state adjudicating on the guilt or innocence of one of their fellow
citizens conferred upon it by this Constitution.
Sahari and Sahari (1976) 2 FLR 11,126 ;ALR 679;(1976) FLC 90-086 at 75,407
"On the evidence before me, I am satisfied that the respondent has disobeyed the order of
the Court. Can it be said then, that such disobedience is more than casual or accidental
and unintentional? It seems to me that I cannot be satisfied beyond a reasonable doubt
that this is so. The parties are in dispute about the meaning of the order .... In any event
suspicions, however grave, do not form a sufficient basis upon which a committal for
contempt can be made". However, before the respondent can be committed for contempt,
I must be satisfied that contempt is constituted by 'Willful disobedience ' of a decree".
Stancomb v Trowbridge Urban District Council (1910) 2 Ch 190

"On the evidence before me in this case I am satisfied that the respondent has
disobeyed the order of the court. Can it be said then, that such disobedience is more
than casual or accidental and unintentional?. It seems to me that I cannot be
satisfied beyond a reasonable doubt that this is so. The parties are in dispute about
the meaning of the order...". "In any event, suspicions, however grave, do not form
a sufficient basis upon which a committal for contempt of court can be made".
"However, before the respondent can be committed for contempt, I must be satisfied that
contempt is constituted by ' willful disobedience' of a decree".
NO CASE TO ANSWER
&
THE ISSUE OF “REASONS OF JUDGMENT”

Page 322
Where the Defendant submitted for the Court on 17-11-2005 to reserve judgment, as to enable
the magistrate to appropriately consider the content of the ADDRESS TO THE COURT, then
should the Magistrate have done so, in view that the Defendant being unrepresented could not
cross-examine himself and the magistrate himself failed to ask questions of the Defendant that
ordinary would be asked by a Defendants counsel, if the Defendant had been legally represented.
By this, the Magistrate as a judicial officer having to balance the hearing as to give the Defendant
a reasonable fair and proper hearing without seeking to be bias or conduct the case as if he was
the counsel for the Defendant. And should therefore at the very least have given proper
consideration to the extensive material that was stated in the ADDRESS TO THE COURT.
There was NO CASE TO ANSWER, as I submitted to the magistrate, and no formal judgment
was handed down as to set out upon what ground the magistrate did not accept there was NO
CASE TO ANSWER.
In the Marriage of Tennant (1980) 5 FLR 777 at 780 (GS17)

"As no grounds for appeal are required to be specified in the notice of Appeal, which, on
filing institutes the appeal (reg 122), there is no limitations of the scope of the appeal and all
findings of fact and law made in the lower court in relation to the decree appealed are in
challenge and cannot be relied on by the appellant or the respondent. All the issues (unless
by consent) must be reheard. This of course brings me to the point of the absence of reason
for the magistrates decision in this case. Perhaps reasons were given orally but not recorded
for the record. Apart from the requirement of such reason for the purpose of the appeal
process, there is the basic ground of criticism that litigants who go to court, put their
witnesses up, argue their case and attempt to controvert the opposing case are entitled to
know, if they lose, why they lost. If they are given no reason they may be entitled to feel
the decision against them was conceived in prejudice, bias, or caprice. In such a case not
only the litigant, but justice itself, is the loser.
Magistrates should realise, even more than they seem to do, that this class of business is not
mere ordinary trivial work, and they should deal with these cases with a due sense of
responsibility which administrations of the summary jurisdiction Act and the far reaching
consequences of the orders that they make thereafter entail. [Baker v Baker (1906)95 LT
549; In Robinson v Robinson (1898) p135; and again in Cobb v Cobb (1900) p145] it was
stated that when making orders of this kind, from which lies an appeal to other courts, it is
the duty of the magistrate not only to cause a note to be made of the evidence, and of his
decision, but to give the reasons for his decision and to cause a note to be made of his
reasons... Elaborate judgements are not required, but the reasons which lead the magistrate
to make his order must be explicitly stated.”
A Defendant is entitled to make a submission of NO CASE TO ANSWER as any time prior to

commencing his defence against the charge(s). While customary a Defendant would await the
conclusion of the Prosecutors case before making a claim of NO CASE TO ANSWER there is
however no specific rule that a Defendant cannot do so from onset. What it does however is that
a Defendant who may from onset make a claim NO CASE TO ANSWER then may wake of the
prosecutor that he better present all relevant evidence, something the Prosecutor may have
omitted to do if not made aware of the NO CASE TO ANSWER claim until after the Prosecutor
has completed his/her case.
Once a Defendant makes a please of NO CASE TO ANSWER, then the Judicial officer is
bound, at the conclusion of the Prosecutors case, to make a legal determination, and state his
reasons, if there indeed is NO CASE TO ANSWER or if in his/her view there is a case to
answer.
Page 323
In the trial before the Magistrates Court of Victoria at Heidelberg the Commonwealth Director of
Public Prosecutions at no stage did present any evidence that I had not exercised any postal
voting in regard of either charge and neither could bother to cross examine me about this, when
presented the opportunity to cross examine me about the charge of failing to vote in each
election. As such, the Commonwealth Director of Public Prosecutions clearly had failed to
establish a case that the magistrate could invoke jurisdiction and also neither had presented
sufficient evidence to show that I had not exercised my right to vote.
It is not relevant what evidence I gave after I commenced my defence as for a claim of NO
CASE TO ANSWER The Court is duty bound to ascertain if the Commonwealth director of
Public Prosecution had placed a case before the Court that proved beyond any doubt that I had
not voted. The Section 388 of the Commonwealth Electoral Act 1918 averment rule clear had
not been accepted by the previous magistrate as to be applicable and as such the Commonwealth
Director of Public Prosecution was legally bound to comply with this ruling.
Therefore the failure of the director of Public Prosecution to present all relevant evidence,
including any evidence the Director of Public Prosecution sought to rely upon to prove that I had
not voted in whatever way that is provided for, must be deemed to have been fatal to the
Prosecutors case and the Magistrate was therefore bound to have upheld my claim that there was
NO CASE TO ANSWER.
For these proceedings again, I make the claim that there is NO CASE TO ANSWER and the
Commonwealth Director of Public Prosecution as such better get his act together, so to say, as to
ensure that all relevant evidence relied upon is not only presented to the Court but that I have
advanced notification, as was directed by the magistrate on 4 August 2005, of any evidence the
Commonwealth Director of Public Prosecution intend to rely upon. Not that the Commonwealth
director of Public Prosecutions as some kind of steam roller conduct seeks to drop a bundle onto
the Court at the hearing and by this prevent me any opportunity to prepare my case against any
such evidence.
Judgment to dismiss OBJECTION TO LEGAL JURISDICTION not audible to the

Defendant, and by this denied the Defendant a FAIR AND PROPER TRIAL, also because the
Defendant had no way knowing in the subsequent trial what was or was not applicable. The
judicial officer (Magistrate) had an onus to provide the Defendant with all relevant reasons of
judgment to enable the Defendant to prepare his defence. As the Defendant had made known to
the magistrate to have a 25% hearing loss, the onus was upon the magistrate to ensure his
judgment was handed down in an audible (for the Defendant) manner.
No reason of judgment had been handed down at all in regard of the submission NO CASE TO
ANSWER, and neither also in regard of the convictions, even so requested for by the defendant.
Abolition of the right to make an unsworn statement versus averment
On 17-11-2005 the absurdity occurred that the Defendant was convicted of FAILING TO
VOTE in a 1-1-2005 Federal election (notably a public holiday, New Years Day) even so no
election then took place. This came about where the judicial officer assumed that an election had
been held that day, by using the averment rule, unconstitutionally, and by this robbing the
Defendant of his right to challenge any evidence.

"We recognise that each party is entitled to a Fair and Proper trial and to an
adequate opportunity to adduce relevant evidence and to test the quality and
veracity of the evidence adduced by the other party."

Page 324
The Hansard transcript makes it clear, that at the time of Federation under British law the right of
an “unsworn statement” was law, and as such part of Federation. Hence I view the State Court
exercising Federal jurisdiction must allow for this right to make an unsworn statement as it is
embedded in the Constitution where it was part of legal proceedings all along.
What therefore needs to be looked at is if proceedings conducted in a State Court are conducted
under State legal processes under State law or are dictated by commonwealth provisions. If
Section 388 averment rule of the Commonwealth Electoral Act 1918 was to be applied then it
would be absurd that the right to make an “unsworn statement” would not be provided for.
However, my position is that as I had submitted in my ADDRESS TO THE COURT, that the
Commonwealth is constitutionally prohibited to interfere with the conduct of a State court, and
as such a State Court is entitled to conduct its legal processes according to state legislative
provisions, and so cannot apply Section 388 rule of averment. It would be unconstitutional to do
so.
More over the reproduced parts of the Hansard transcripts indicate that the abolition of
“unsworn Statements” was because of seeking to make litigation, so to say, a level playing
field for both the Prosecutor and the Defendant. To then introduce the averment rule robbing
the Defendant of any ability to cross examine the Prosecutors witnesses on critical evidence flies
in the face of the very intention of the Parliament why it pursued to abolish “unsworn
statements”!
Hansard 16-3-1993 Legislative Council
HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&startpage=24&origq
uery=true+and+(+data+contains+\\'Evidence\\'+and+data+contains+\\'Unsworn\\'+and+data+cont
ains+\\'Evidence\\'+and+data+contains+\\'Bill\\'+)&query=true+and Hon. B. T. PULLEN
(Melbourne) --
The Minister also admitted that unsworn testimony was introduced to protect the
disadvantaged at a time when accused persons were often not represented and were
not allowed to give sworn evidence.
The opposition believes that, although most accused persons are represented, many
of them remain disadvantaged, which is why the provision should not be abolished.
The opposition believes the right to give unsworn evidence is a fundamental part of
our system of justice. Although the system can sometimes be criticised, it is still
based on the presumption of the innocence of the accused. The Crown must prove
that an accused person is guilty beyond reasonable doubt -- in other words, it is not
up to an accused person to prove that he or she is not guilty.
HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.one&db=hansard
91&dodraft=0&pageno=25&house=COUNCIL&speech=11909&date1=16&date2=
March&date3=1993&title=EVIDENCE+(UNSWORN+EVIDENCE)+BILL&tmpfil
e=/tmp/rand263663247158&query=true+and+( Page 25
The prevailing philosophy of our legal system is that it is better for some guilty
people to escape the force of the law than it is to find an innocent person guilty
through an inefficiency in the system or a deficiency in the proceedings of trial. Of
course, no system is perfect. Rather than a system that is more inquisitorial, Victoria
has inherited a system which favours the accused and protects the innocent
whenever possible.
Page 325
And
Trials should be conducted in the fairest possible way.
And
Secondly I refer to an article written by Ron Merkel, QC, entitled Unsworn

Evidence in Criminal Trials - The case for change and the case for the status quo
which was included in a Victorian certificate of education legal studies discussion
paper produced as part of the Victorian Council for Civil Liberties schools program
when Mr Merkel was president of the council.
Under the heading Protecting the Innocent the article states:
A quite separate and further basis in more recent years for the retention of this right
on the part of an accused is the recognition that in a multicultural and diverse
society many accused persons will simply present poorly to a jury. Persons on
serious criminal charges when in the witness box may stammer, twitch, sweat,
become flushed, appear to be uneducated, be stupid or just seem confused. Those
persons are no match for the skilled Crown prosecutor but nevertheless they may
still be truthful and innocent.
Leading judges such as Chief Justice Bray in South Australia and Lord Devlin in
the United Kingdom have commented that such circumstances can lead a jury to
ask if the accused is a bad witness or untrustworthy rather than whether he or she is
guilty.
If the right is abolished such persons will be deprived of the opportunity to put
their view of the facts before the jury. Responsible counsel will not oppose clients
to cross-examination if they are unable or poorly equipped to handle that situation.
An article by Bronwyn Naylor published in the Law Institute Journal of July 1985
states at page 682:
The former Chief Justice of the South Australian Supreme Court, John Bray, said
recently of the unsworn statement that all logic is against it and a good deal of
experience is for it . He went on, If the unsworn statement does go and all accused
persons who want to get their story before the jury are forced into the witness box I
think that some guilty people who would otherwise be acquitted will be convicted
and that is a good thing as far as it goes. But, I also think that some innocent people
will be convicted who would otherwise be acquitted and in view of the traditional
bias of the common law in favour of the accused that should have enormous
weight.
Again;
The Crown must prove that an accused person is guilty beyond reasonable doubt -- in
other words, it is not up to an accused person to prove that he or she is not guilty.
There can be no “beyond reasonable doubt” where the prosecutor does not have to prove its
case. It is turned into a STAR CHAMBER COURT, (outlawed also by the Act Interpretation
Act 1980).
Hansard 21-5-1993 Assembly (Victoria)

HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&startpage=1190&ori
Page 326
gquery=true+and+(+data+contains+\\'Evidence\\'+and+data+contains+\\'Unsworn\\'+and+data+c
ontains+\\'Evidence\\'+and+data+contains+\\'Bill\\'+)&query=true+a Hon. LOUISE ASHER
(Monash) --
I shall put the HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match3"

Bill in the context of the government's concerns. The HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/" \l "match3" Bill is one of a number of
measures that the government has introduced to deal with the problem of violence
against women and rape in our society. During this sessional period we have already
dealt with the HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match4"
Evidence ( HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match4"
Unsworn HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match4"
Evidence ) HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match4"
Bill , which abolished HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l
"match5" unsworn statements. They provided the statutory right for a person
accused of rape to stand in court and make up whatever lies he wished about the
victim.
This may underline that its intention was directed more as to serious crimes where the accused
could cross examine victims but then the accused could make an unsworn statement.
In a matter of “FAILING TO VOTE” there is clearly no such traumatic kind of scenario for the
victim of a serious crime possibly being terrorised during cross examination.
As shown below;
So far as those who are unrepresented are concerned, generally people are
represented in court proceedings and, notwithstanding the difficulties associated
with legal aid, that situation will continue in Victoria. Nevertheless, the issues raised
are important. I am prepared to give an undertaking that the new legislation will be
carefully monitored and, if there is need for change after the enactment of the Bill, it
will be examined by the government in the appropriate way -- whether by amending
the Evidence Act or doing something else to deal with the people affected.
It must be recognised that Parliament never contemplated that any Court would conduct a case
where the prosecutor could simply not have to prove any crime has committed and so the
accused being denied to challenge the evidence as there is no evidence, and as such there can be
no “beyond reasonable doubt” as all it results to is that the judicial officer merely ASSUMES
that the defendant has committed the crime charged with and the Defendant now has the onus to
disprove the crime having occurred. This is contrary to what is “ENSHRINED” in the
Commonwealth of Australia Constitution Act 1900 (UK)
The Commonwealth of Australia Constitution Act 1900 (UK) is a British Act and as such
considering the decision of Aggregate Industries UK Ltd., R (on the application of) v English
Nature and & Anor [2002] EWHC 908 (Admin) (24th April, 2002) and Judgments - Mark
(Respondent) v. Mark (Appellant), OPINIONS, OF THE LORDS OF APPEAL for judgment
IN THE CAUSE, SESSION 2005-06 [2005] UKHL 42 on appeal from: [2003] EWCA Civ 168
It appears that the The European Convention for the protection of Human Rights and
Fundamental Freedoms (“the ECHR”) albeit not overriding constitutional law, is
complimentary to British (constitution) law, as the Commonwealth of Australia Constitution
Act 1900 (UK) is.

Page 327
It cannot be accepted that the Commonwealth Director of Public Prosecution can hide behind
averment preventing the Defendant to challenge anything, because there is no evidence and yet
he can cross examine the Defendant. It flies in the face of what is NATURAL JUSTICE and a
FAIR AND PROPER TRIAL and certain never intended by the legislators when they abolished
the right of an unsworn Statement, as quoted below.
19940503 Legislative Assembly

HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&startpage=439&orig
query=true+and+(+data+contains+\\'Evidence\\'+and+data+contains+\\'Unsworn\\'+and+data+co
ntains+\\'Evidence\\'+and+data+contains+\\'Bill\\'+)&query=true+an Hon. LOUISE ASHER
(Monash) --
As I understand the amendment it is to ensure that the victim can be cross-examined

only when the statement is unfairly prejudicial to the offender. The issue of where
cross-examination on victim impact statements should occur is a valid issue for
debate. I know the Victorian Council for Civil Liberties was strong in its view that
the HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match5"
evidence should be tested by cross-examination. In the debate on the
HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match6" Evidence (
HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match6" Unsworn
HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match6" Evidence )
HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match6" Bill I argued
that any HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match6"
evidence given in court should be subject to the test of cross-examination, and I
am mindful of the need for consistency. However, an argument can be made that
because victims have already given their HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/" \l "match7" evidence , in some
circumstances cross-examination may be seen to be harsh. Some victims groups
have voiced that concern. I shall briefly outline what the Attorney-General has said
about cross-examination.
The Attorney-General is strongly in favour of a decision being made about whether

HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match8" evidence is
or is not cross-examined.
But the opposition is suggesting some halfway house, that there be cross-
examination in some circumstances but not in others. It is important to make a
decision. Cross-examination either should or should not take place. A decision to
opt for a middle course would give the court a considerable degree of discretion in
an emotional area. The Attorney-General has also said that cross-examination
cannot begin without the consent of the judge. Further, and most importantly, she
has said that evidence from other jurisdictions shows that cross-examination
happens only rarely.
In the other place the honourable member for Mornington expressed considerable
concern about cross-examination. I also note that Mr Pullen said he wanted the
legislation to be monitored -- and I assume he meant this aspect most of all. After I
first read the bill I had the same concerns as those articulated in the other place by
the honourable member for Mornington. But it is important to allow the legislation
to pass as drafted and to see how it goes.
Page 328
HYPERLINK
91&dodraft=0&pageno=443&house=COUNCIL&speech=17622&date1=3&date2=
May&date3=1994&title=SENTENCING+(VICTIM+IMPACT+STATEMENT)+BI
LL&tmpfile=/tmp/rand264684041762&query=tru Page 443
The Attorney-General has made the important point that in other jurisdictions
victims have not been harassed, an issue honourable members are rightly concerned
about, and cross-examination has occurred only rarely.
Hansard 5-5-1993 Assembly (Victoria)
Mr COLE -- It does not these days, more's the pity. The Upper House in essence is
still an anachronism, but it has changed. So too has the right to give unsworn
evidence. That right exists for a specific purpose. Many years ago now that right
was changed and it now exists under a different set of circumstances.
Many other things are anachronisms: for example, the oath and the affirmation. I
cannot see why somebody should swear an oath or make an affirmation. A person
going into the witness box should be told by the judge, Tell the truth . It is not too
much to ask. If a person does not tell the truth and that is proved to be so, the person
should be charged with perjury. Why should a person have to make such an oath or
affirmation? It goes back to the days when one had to swear on the Bible. Things
have changed. Now people can make an affirmation. In time it could be seen as
unnecessary.
And
The right to give unsworn evidence has been through many processes of review over
many years, and it is still felt by most that it should be retained.
Two judges of the Law Reform Commission dissented from the majority, so I am
not suggesting that the view that the right should be retained is held unanimously
within the community, but certainly the overwhelming result is that it ought to be
retained.
This issue fits quite clearly into the rubric of what constitutes a fair trial. Many
factors determine whether a trial is fair and they should be balanced against the need
to establish the truth. Recently the High Court in the Dietrich decision decided that a
judge can grant an adjournment or stay at his discretion if the outcome is likely to be
unfair in that it forces the accused to be tried when unrepresented. That was a
foundation decision and completes the circle of what constitutes fairness in a trial
setting. The legal system has moved as far as saying that it is unfair for a person not
to be legally represented. That is actually enshrined in the law by the High Court.
We have moved a considerable distance towards what constitutes a fair trial.
Certain issues aside from that are sacrosanct. They include the jury system, the right
to silence, the presumption of innocence, that the burden of proof lies with the
Page 329
prosecution and that guilt must be proven beyond a reasonable doubt. I hope the
Attorney-General will agree that those principles are imperative for the effective
operation of our justice system and for the retention of a fair and just society. Other
issues such as the giving of unsworn evidence require deliberation but they do not
go to the kernel of the legal system as do the matters listed above. For example, it is
not quite in the same bracket as the requirement that guilt be proven beyond a
reasonable doubt or the right of silence.
Many arguments have been put forward as to why the right to give unsworn
evidence should be withdrawn from accused persons. I would like to go through
some of the arguments against its retention. The first is the requirement to test all
evidence by cross-examination.
It is not unreasonable that evidence, whether given by way of defence by the

accused or in the normal course of events, be tested.
Evidence may be given in the witness box or the witness may choose to be silent. If
that is the case,
evidence cannot be tested because no evidence has been put forward. All evidence
that the witness seeks to rely on -- alibis or whatever other evidence -- is subject to
cross-examination by the prosecution, but that is not the case with unsworn
evidence. The story is put forward but is not subject to cross-examination. The
witness has two alternatives: giving evidence or remaining silent.
HYPERLINK
91&dodraft=0&pageno=1602&house=ASSEMBLY&speech=12803&date1=5&dat
e2=May&date3=1993&title=EVIDENCE+(UNSWORN+EVIDENCE)+BILL&tmp
file=/tmp/rand256974418567&query=true+and+( Page 1602
There is some merit in that argument in terms of perceptions of fairness, certainly in

some of the more difficult cases where victims have been badly affected by the
alleged crime. In a sense there is almost a perception that the victim has to be cross-
examined but the accused can give his statement and does not have to be cross-
examined.
Another issue is the defendant's attack on the reputation of an innocent person

without the risk of cross-examination, particularly in trials for rape and related
offences. The defendant can present a statement without being cross-examined, and
that fits into the first bracket I described.
It is argued that a defendant's counsel can cross-examine broadly to elicit useful

material for the subsequent preparation of an unsworn statement by the defendant.
It is reasonable to suggest that that happens and that there are times when a great
deal of work is put in to lengthy cross-examination to ensure that the best possible
story is presented by the accused in an unsworn statement.

Page 330
Another issue is the opportunity to attack the credibility and reputations of innocent
persons without fear of retaliation, and that is extremely important from the point of
view of the accused. If the credibility of a witness is attacked without re-
examination by his or her counsel the case can appear to be unfair. That situation
may have a deleterious effect upon the victim because he or she cannot argue why
his credibility should not be attacked or that what is being put forward is incorrect.
And
HYPERLINK
gquery=true+and+(+data+contains+\\'sworn\\'+and+data+contains+\\'statement\\'+)&query=true+
and+(+data+contains+'sworn'+and+data+contains+'statement'+)&db=h Mr RYAN (Gippsland
South) -- I support the Bill.
It is relevant for the purpose of the debate to have regard to the historical origins of
the right. It arose initially in England and in circumstances where prior to 1898 and
the passage of the Criminal Evidence Act a person charged with a criminal offence
was not entitled to give evidence on oath. He was able to make a statement about his
position, but he could not give evidence on oath. According to the terminology at
the time that person was not a competent witness .
There was also concern at law about the concept of a person giving self-
incriminating evidence. Those various concerns were melded into the position that
applied prior to the passage of legislation in 1898.
With the passage of the Criminal Evidence Act it was held that a person accused of
a crime was permitted to give HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/" \l "match2" sworn evidence, although at
the time of the passage of the Act the right to make an unsworn HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/" \l "match3" statement was retained; that
position carried over into the Victorian law and it still applies now in the general
sense.
At the moment the position in Victoria is that a person charged with a criminal
offence is entitled to adopt one of a number of courses: that person can choose to
remain silent; he can go into the witness box, give HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/" \l "match4" sworn evidence and be
cross-examined; or he can give unsworn evidence.
Until 1986 such a person was entitled to make an unsworn HYPERLINK

"http://tex2.parliament.vic.gov.au/bin/" \l "match5" statement but, as a result of
amendments to the Evidence Act in 1986, the provision was qualified to the point
where a person charged with a criminal offence is now able to give unsworn
evidence.
That is another example of, I suppose, the evolutionary aspect of the development of
this concept.
Prior to 1986, in the era when an unsworn statement could be made, the process also
went through developmental stages. As a practitioner in the sphere that we now have
under discussion. I remember when the legislation had reached the point that it was
Page 331
permitted for counsel appearing on behalf of an accused to assist the accused in the
preparation of an unsworn statement.
I well remember the situation where the unsworn statement of the accused made its
way onto a word processing screen at the start of a trial; with the passage of the days
of the trial it was modified as the evidence transpired and the statement ultimately
HYPERLINK
read by the accused person often took on a different form from that which had been
contemplated on day one of the trial. In any event, in 1986 that position was
remedied in part by the fact of unsworn evidence being brought into being.
The real issue that we are talking about is the issue of a fair trial; a person brought
before a court is entitled to a fair trial. That is the issue under consideration. To look
at it in terms of bald statistics in the manner the honourable member for Melbourne
has done is not to deal with it on a proper basis. The guiding principle in a system of
justice must be that a person charged with a criminal offence is entitled to a fair
trial. That in turn leads to what comprises a fair trial. In reality the community's
view about these issues evolves with the passage of time. The best example is the
original English Criminal Evidence Act of 1898. In 1780 Sir John Fielding proposed
that a regular police force be formed in England. That proposition was opposed by
12 of the 15 judges of the day.
In 1836 when the right of counsel to appear on behalf of the accused charged with a
felony was proposed, 12 of the judges of the day were opposed and one judge
threatened to resign. It is interesting to contemplate the evolutionary aspect of the
development of the law with the passage of time. Legislation reflects a community
view, and the community at present is of the view that the right to give unsworn
evidence must go.
The honourable member for Melbourne spoke about the rights currently enjoyed in
the community and said that one must be careful about taking away a right that
currently exists. I agree with his comments in that regard. The community, though,
has already expressed its views about taking away rights which have long been
enjoyed, such as civil and common-law rights. Governments of all persuasions have
brutalised the common law over past decades in areas including rights under the
Transport Accident Act.
And
There are numerous examples where the community view about a given right which
has long been in existence has to be modified. Such is the case in this instance.
Maintenance of a system of a fair trial is paramount.

Page 332
I cannot see why the removal of the right to give unsworn evidence is equated with
damaging the concept of a fair trial. An accused person is entitled to remain silent if
he or she so chooses, or is entitled to go into the witness box and give sworn
evidence and be cross-examined.
The honourable member for Melbourne rightly and fairly raised the fact that those
who are disadvantaged for a variety of reasons may not in the course of a criminal
trial have the capacity to speak on their own behalf. I share the honourable member's
concerns in that regard; they are intrinsic to the issues that must be protected if we
are to maintain a fair criminal justice system. There is a process available within the
existing system and within that which is proposed under the ambit of the legislation
to enable that to happen.
Currently a judge in a criminal trial does not enter the arena as often as he might in
circumstances where an accused has a right to give unsworn evidence.
The tendency is to stay out of the conduct of the trial and allow it to take its course.
If the legislation is passed the judges in those circumstances should conduct a trial in
such a way that they give protection to persons whom they perceive as being
disadvantaged.
The Full Court is a second level of protection for those persons. There is an
appellate system in place in the State, and if it is perceived that a person is
disadvantaged by the conduct of a trial and that
person has been unfairly convicted he or she has the right of appeal to the Full
Court. One should be mindful of the law as we propose it to apply rather than what
has been the case in the past.
HYPERLINK
Unlike the position that applied when the Criminal Evidence Act of 1898 was
passed, the majority of people who come before courts charged with criminal
offences are legally represented. That representation removes many of the concerns
that were present when the legislation was enacted. The view of the community is
important for those who are involved in a trial, especially the victims. They perceive
the situation as being that everybody else who gives evidence at a trial is subjected
to cross-examination. The only exemption to that is the person accused of the
offence in the first instance.
And
HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&startpag
e=1607&origquery=true+and+(+data+contains+\\'sworn\\'+and+data+contains+\\'sta
tement\\'+)&query=true+and+(+data+contains+'sworn'+and+data+contains+'stateme

Page 333
nt'+)&db=h Mr THWAITES (Albert Park) -- The philosophy underlying the Bill
appears in the second-reading speech.
The government believes it is anomalous that a witness must give evidence that is
subject to cross-examination but the accused does not have that same obligation.
The honourable member for Gippsland South said that the government's argument is
based on the presumption that the accused person and the witness are in the same
position and that their evidence should be treated in the same way. But the witness
and the accused are not on an equal footing. The accused has much more to lose.
The accused, who may be innocent, faces conviction, punishment and in most cases
the deprivation of his or her liberty, so the accused is in an entirely different position
from that of an ordinary witness. That is the reason for the golden rule of criminal
law that the prosecution must prove its case beyond reasonable doubt.
Obviously the honourable member for Gippsland South does not understand that
rule and how it applies in criminal cases, because he said that the abolition of
unsworn statements was necessary to enable juries to decide which of the two
stories to believe.
That is not the basis on which criminal trials proceed or have proceeded for
hundreds of years. Criminal trials do not proceed on the basis that the jury takes a
story from the prosecution and a story from the accused, weighs them up and
determines which is the right or more credible story. A criminal trial must proceed
on the basis of the prosecution proving beyond reasonable doubt that the accused
person is guilty. It is not for the accused person to prove his or her innocence.
A very good reason exists for that.
The philosophy of civilised societies is that it is better for some guilty people to be
acquitted than for an innocent person to be convicted, because imprisonment and
punishment are such terrible things. Society says that an innocent person should not
be subjected to that punishment -- even though that has happened
before -- so it is prepared to weigh the scales of justice in favour of the accused. It

has never been an even balance. The government seems to want to destroy that
golden rule of justice, and its move toward that is consistent with what it is doing in
other legislation.
Whatever is happening in other jurisdictions, that view is inconsistent with the view
of the High Court and with the views of legal practitioners.
HYPERLINK
The High Court has recently reconfirmed the basic rule that it is for the prosecution

Page 334
to prove the accused guilty beyond reasonable doubt and that it is not for the
accused to have to prove his or her case.
And
The next point I make is that the judge is required to instruct the jury prior to
unsworn evidence being given that the evidence is not subject to cross-examination.
Indeed, the judge again refers to this at the time of the charge to the jury. On two
occasions the jury is made well aware that the evidence is unsworn and is not
subject to cross-examination. In fact, the jury is told that in emphatic terms as a
matter of practice. That is my experience and the advice I have received from legal
practitioners who practise in the criminal law area.
And
The unsworn statement given in the past was much less constrained than the
unsworn evidence that can be given now. In the article in the Law Institute Journal
of April 1992 the Attorney-General says that once the accused gives evidence the
prosecution case is closed and there is no cross-examination of the accused and no
opportunity to rebut the evidence.
HYPERLINK
She says that while there is a right for the prosecution to introduce evidence by way
of rebuttal, as a matter of law it is not an automatic right.
Of course, the accused in giving unsworn evidence cannot give evidence that has not
been put to the complainant. That is the rule in Brown v. Dunne, the well-known
rule that the honourable member for Doncaster would be aware of whereby a
witness, including the accused, cannot put in evidence an accusation that has not
already been put to the complainant. It is not a situation where the prosecution has
not had a chance of rebutting the evidence. The prosecution has had a chance to
rebut the evidence because the complainant would have had it put to her, and it
would have been raised during the running of the prosecution case. I am glad the
honourable member for Gippsland South agrees, because I am dealing with the
Attorney-General's claim in an article in the Law Institute Journal.
The issue of rebuttal is important because the Attorney-General claims it has not
often occurred that the prosecution has rebutted the evidence given in an unsworn
statement. In fact, the advice I have from numerous practitioners in the field is that
if there were information put in unsworn evidence which was relevant to the case,
and which the prosecution had not had a chance to rebut, the court would give the
prosecution the right to reopen its case to rebut it.
The next point, particularly in relation to rape and sexual assault cases, according to
the advice I have received from criminal law practitioners, is that loose statements
against the prosecutrix are not generally made in rape cases for the principal reason
Page 335
that, if such allegations were made, it is likely the court would rule that character
was in issue and that the prosecutor was therefore entitled to lead evidence of the
accused's bad character and prior criminal convictions. That is a major reason why
the accused will not raise wild allegations.
Finally, in sexual cases the abolition of unsworn evidence will not stop the vigorous
or unfair cross-examination of rape victims. I refer the House to a minority report of
Jocelynne Scutt in the 1985 Law Reform Commission report. Ms Scutt has a fine
reputation among feminist groups. She has written many books on the subject and
there is probably no-one in the community who has more concern than she has about
these issues. She says:
If the unsworn statement were abolished, it would not mean that a defendant would
have to give evidence and be cross-examined. He could remain silent -- whilst the
woman victim continued to be harshly treated through cross-examination.
Suggestions that the woman is lying, that she is sexually loose or promiscuous
could continue to be made. Friends of the defendant could continue to be brought
into court to make allegations about the woman's sexual character.
The women's movement (and the general community) might be even more
affronted if the defendant remains silent altogether, while the victim witness is
questioned. The victim witness will be stringently cross-examined whether or not
the defendant gives an unsworn HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/" \l "match6" statement , a
HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match6" sworn
HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match6" statement , or
remains totally silent.
Jocelynne Scutt has impeccable feminist credentials and she says that the abolition
of unsworn evidence will not lead to a better situation for female victims of crime
who are called to give evidence.
The honourable member for Melbourne referred to disadvantaged defendants, so I

shall not go through that issue in detail other than to refer again to the minority
report of Jocelynne Scutt, who refers to the problems for some disadvantaged
groups, including non-urbanised black Australians or disadvantaged groups of other
backgrounds. She states:
The question of whether the disadvantaged person is a victim or a defendant is not

the only issue. The base issue is whether, coming from a disadvantaged group, the
individual can be disproportionately dealt with by questioning and cross-
examination. The cross-examination seems unfair because the person in the
particular category, or with the particular background, is disproportionately
susceptible to stringent cross-examination.
These are accused people who firstly may be innocent and secondly, if found guilty,
may lose their freedom and face a long term of imprisonment. That is a risk which I
am not prepared to take and which I do not believe the opposition is prepared to
take.
And

Page 336
HYPERLINK
and+(+data+contains+'sworn'+and+data+contains+'statement'+)&db=h Mr COOPER
(Mornington) –
Most people ask only one thing of the criminal justice system -- that is, that justice
be done. They do not ask for statistics; rather they ask that, where a person has been
charged by the police and brought before the courts, evidence is advanced that will
enable the right decision to be made. I am not particularly interested in whether 2, 3,
5, 15 or 20 per cent of guilty people get off; but I should like the system to be as
good as it possibly can be.
The system is not perfect because, as the honourable member for Albert Park said, it
is weighted against the prosecution and in favour of the defence. In every instance
the prosecution is required to ensure that the evidence on which an accused person is
convicted is true. If the prosecution cannot come up with that evidence, the person
must be acquitted.
(Again;
If the prosecution cannot come up with that evidence, the person

must be acquitted. )
And
People in the street are demanding that the justice system be simply what it claims
to be: a system of justice.
The community will demand that people who have committed crimes are brought
before the justice system and, when convicted under rules that are fair and equitable,
dealt with. That is not the situation that exists now in Victoria and that is what the
government is trying to rectify.
And
HYPERLINK
and+(+data+contains+'sworn'+and+data+contains+'statement'+)&db=h Mr LONEY (Geelong
North) –
And
In particular, it is about the fundamental belief in a presumption of innocence until a

person is proved guilty that underpins our legal system.
And
I refer in particular to what the honourable member for Gippsland South said about
no perjury charges being laid against people who have made unsworn statements.
His manner betrayed more than a convincing argument; it betrayed his own biases.

Page 337
He said that he was surprised that no charges of perjury had been laid against
persons who had made unsworn statements. Why would he be surprised?
It seems that the major element of surprise is based on a presumption that people
make unsworn statements only because they do not wish to tell the truth.
That is simply not so. For a range of reasons people may prefer to give unsworn
evidence rather than evidence on oath, and I would like to examine those reasons.
Some people give unsworn evidence for social or even cultural reasons. Some
people in our community are at a disadvantage for a number of reasons if they go
into the courts. Some groups would not be able to put their side of the story in court
without running the risk of casting themselves in a poor light before the jury. The
term casting themselves in a poor light is very important because, as has been
pointed out by many people close to the legal profession, people should not be
convicted because they are poor witnesses. They should be convicted only by due
process through
the court and by a finding that they are guilty beyond reasonable doubt.
HYPERLINK
Some people would be in great danger if they did not have the advantage of giving
unsworn evidence. Who are those people? In the main they are those groups in the
community that for one reason or another are described as disadvantaged.
They may be disadvantaged in that their language skills may be less developed than
those of other groups or they may not be overly familiar with English. Simply the
use of an interpreter may disadvantage them. People who lack education to the point
that they have difficulty coping with the court system could be disadvantaged, and
so could those who are intellectually disabled.
All those groups for one reason or another may have some difficulty understanding
questions and, more importantly, may find it difficult to express themselves in the
best way possible.
It has also been pointed out in a number of places that the cultural background of the
Australian Aborigine is a particular difficulty in the court. Aborigines before the
court often have difficulty not answering in the affirmative to a person in a position
of authority. That is referred to in the same report of the Law Reform Commission
quoted by the honourable member for Mornington.
The report also refers to people who may be well enough to stand trial but suffer
from illness or accident injuries which still affect them.

Page 338
There is also the group of people who for one reason or another react poorly under
the stress of cross-examination and trial. They may exhibit nervousness in their
replies or physical symptoms of nervousness, perhaps undue twitching or sweating,
which may lead a jury to reflect poorly on their evidence even their behaviour may
not necessarily be a reflection of guilt. Such people could well be innocent.
Mr Justice Bray wrote the following:
The inquiry may imperceptibly shift from the question, Is the accused guilty? to the
question, Is the accused credible? These are not the same questions.
The shift in emphasis in our legal system from a person having to be proven guilty
beyond reasonable doubt to a person being proven not to be a credible witness is
very important. It is an important and valid reason why the right to give unsworn
evidence should not be taken away without some reasonable evidence to suggest
that the right is being abused.
The central myth surrounding unsworn evidence is that huge numbers of guilty
people have avoided conviction through making unsworn statements - they have
been acquitted and walked out of the courts when they should have been locked up.
The figures put forward by the honourable member for Melbourne and others put
the lie to that myth. That is simply not occurring.
They quoted 1985-86 figures. I shall go back further to 1981 when the Law Reform
Commission presented evidence that people giving unsworn evidence were less
likely to escape conviction than those giving sworn evidence. Figures from 1978
suggest that 36 per cent of people giving sworn evidence were acquitted while only
20 per cent of people giving unsworn evidence were acquitted. So at that time fewer
people who gave unsworn evidence were acquitted than those who gave sworn
evidence.
I can go further by looking at the overall figures on those acquitted who gave
unsworn evidence. If it is assumed that all who gave unsworn evidence and were
acquitted were guilty -- and that is a fairly large assumption -- --
And
HYPERLINK
and+(+data+contains+'sworn'+and+data+contains+'statement'+)&db=h Mr TRAYNOR
(Ballarat East) –
And
For a long time I have been concerned about victims of and witnesses to violent
crimes, including the young, the elderly and the frail, and the female victims of
depraved sexual attacks who must give HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/" \l "match7" sworn evidence in courts
and who are subject to rigorous cross-examination by highly skilled barristers. The
accused does not have to enter the witness box to give evidence. On many occasions
I have seen the accused sitting at the back of the court taking numerous notes.

Page 339
The honourable member for Melbourne knows well that in police and legal circles
the unsworn HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match8"
statement is known as cowards' castle. It is often a web to weave fairy tales into
fact, and some of the fairy stories would make the efforts of Hans Christian
Andersen look amateurish. Unsworn evidence is simply a licence to lie. A Crown
prosecutor once said that when an accused gave unsworn evidence in most cases he
told lies. There is an urgent need to review the situation.
I shall refer to a statement by the then Attorney-General, the present Leader of the
Opposition, who is reported in the Herald Sun of 18 May 1991:
The Attorney-General, Mr Kennan, has promised a review of allowing defendants

in criminal trials to give evidence without being cross-examined -- if he believes
such a review is warranted.
Mr Kennan has said he will seek the opinion of the appropriate people, including the
police and the Director of Public Prosecutions .
He says that if the view is that giving unsworn evidence should be reconsidered, he
would refer the matter to the Victorian Law Reform Commission.
Senior police said yesterday they were eager for unsworn evidence to be scrapped.
We want the matter re-examined as quickly as possible, said Assistant
Commissioner (Crime) Bob Falconer.
Senior police have argued that justice is not served by allowing accused people to
make, before a jury, statements that cannot be cross-examined.
We want a system which is equal for all, Mr Falconer said.
Unsworn evidence would be the greatest bone of contention in the system.
All witnesses should be on equal footing and all evidence should be tested through
cross-examination.
At least three respected judges have made comments about unsworn evidence. I
shall quote from an article headed, A question of criminal justice which also
appeared in the Herald Sun of 18 May 1991:
At least three respected Victorian Supreme Court judges have expressed concern
over the practice.
Justices Beach, Gobbo and Marks have queried the value of evidence which cannot
be cross-examined.
Justice Barry Beach has long argued the accused should not be allowed to give
unsworn evidence.
Cross-examination is probably the best test yet devised to assess the truth of a
person's statement and to deter lying.
And
HYPERLINK
nt'+)&db=h Mr E. R. SMITH (Glen Waverley) -- In 1825, Jeremy Bentham, the
great English law reformer, commented on the right to make an unsworn statement
without the risk of being questioned by a prosecutor or judge. He said:
Page 340
If all criminals of every class had assembled, and framed a system after their own
wishes, is not this rule the very first which they would have established for their
security?
In 1590 in the case of R. v. Udal it was found that it was necessary only for a person
to swear that he did not commit the crime to be let off. After that the courts went to
the other extreme of stopping all accused from making any statement. It was not
until 1833 that the courts restored to an accused person the right to make a
statement.
In Victoria today, the accused has four choices: he may stand mute; he may give
evidence; he may give unsworn evidence; or he may make an unsworn
HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match10" statement .
An unsworn HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match10"
statement is permitted when the accused is unrepresented. As honourable
members are aware, the Legal Aid Commission now provides the representation that
the disadvantaged and the inarticulate require to defend themselves.
The main reasons for the retention of unsworn evidence are fairness to the accused
and a desire to make the prosecution prove its case beyond reasonable doubt. In
1986 the principal Act was amended and a trial judge was allowed more discretion
in the admission of facts. Accused persons faced the possibility of being charged
with perjury if they made untrue statements while giving unsworn evidence.
As has been forcibly put by the lawyers on the government side and by the previous
speaker, the honourable member for Ballarat East, people do not believe they are
getting a fair go. The giving of unsworn evidence does not allow either the accused
to be cross-examined or the Crown prosecutor to
comment on the failure of the accused to give sworn evidence.
The system provides a haven for the accused to attack the prosecution's case and the
evidence of witnesses without fear of counterattack. It is time we took on board the
precedents set in other jurisdictions similar to our own. Unsworn statements are
hangovers from the past when an accused was not permitted to give evidence.
Unsworn statements were abolished in England in 1983; in Canada in 1893, 100
years before; in New Zealand in 1966; in Queensland in 1975; in South Australia in
1983; in Western Australia in 1976; and in the Northern Territory in 1984.
HYPERLINK
All those jurisdictions share common law traditions with Victoria. Given the
abolition of the death penalty and the provision of counsel at public expense for
needy persons committed for trial, the entrenching of the right to give unsworn
evidence is anomalous, because its sole purpose appears to be to assist accused
Page 341
persons to escape conviction. The use of unsworn evidence in the Walsh Street trial
is still fresh in the minds of honourable members, as is the use of an unsworn
statement by Lionel Murphy in his second trial, which resulted in his acquittal. I
believe unsworn statements should be abolished.
(Again;
Unsworn statements were abolished in England in 1983)
And
HYPERLINK
nt'+)&db=h Mr PERTON (Doncaster) - This has been an extraordinarily
thoughtful debate, one to which members on both sides of the House have made
excellent contributions. The debate is about the pursuit of justice. The opposition
has been seeking justice for the accused while government members have been
seeking justice not only for the accused but also for the community in general. In
particular, government members have been seeking justice for the victims of crime,
who in many cases must relive the horrific circumstances of the crimes that have
been committed against them when they are giving evidence.
The justification for the abolition of unsworn statements is that the system has been
abused. The original purpose of unsworn statements was to protect an
unsophisticated witness from being badgered or browbeaten by a clever and
powerful counsel. The honourable member for Albert Park spoke about his
experiences, and the honourable member for Ballarat East gave a thoughtful
contribution based on his experience.
During my time as a barrister I have browbeaten witnesses, and I have not always
seen them given a fair deal by judges. I know people have made admissions -- --
Mr Micallef interjected.
Mr PERTON -- The interjection by the honourable member for Springvale shows

that he is a pathetic man who is unable to make a thoughtful contribution to the
debate. We are talking about truth; and as the honourable member for Melbourne
said, in many cases people giving sworn evidence perjure themselves. One of the
reasons why perjury actions are not brought in this State is that perjury is difficult to
prove; and as a matter of public policy, it is difficult to re-run the litigation.
The legislation puts defendants on the same footing as victims, witnesses for the
prosecution and members of the general community.
That procedure is proper in the case of most defendants because the unsworn
HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match11" statement
has been used and abused by sophisticated defendants represented by sophisticated
barristers.
I do not know the particulars of the case referred to by the honourable member for
Ballarat East, but it probably was a case of people who were well capable of giving
Page 342
evidence and who were well represented but who chose not to do so as a matter of
tactics so as to give themselves a procedural advantage.
The Scrutiny of Acts and Regulations Committee has examined this Bill. The
committee accepted the HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l
"match13" statement made by the Attorney-General -- namely, that the primary
purpose of the legislation is to put everyone on the same basis and to eliminate the
abuses of the legislation. During its investigations the committee received evidence
at a public hearing that led many committee members to investigate the matter
further.
HYPERLINK
I ask the Attorney-General to investigate the circumstances of people who are

genuinely unsophisticated and who are perhaps in some danger of being browbeaten
by barristers. Examples were given to the committee of people who have a very low
intellect or a very low IQ who, on many occasions, will not be capable of thinking
about the consequences of their answers: they may say yes when they mean no. So,
too, certain ethnic groups in our community will experience difficulties because of
their cultures. Without being racist, I point out that one example given to the
committee was of the Aboriginal community where a person is more likely to
answer yes than no to a question from someone in authority. The committee is
concerned about the people who are unsophisticated and those who are culturally
more inclined to answer yes to an authority.
I ask the Attorney-General to monitor the operation of the legislation in the courts
and if for instance it appears that some injustices occur whereby judges are not
capable of ensuring a fair trial in every case, because of the abolition specified in the
Bill or that certain groups are being disadvantaged as a result of the legislation, to
review the situation and take action to ensure that justice is being done. The purpose
of the legislation is to ensure a fair go for the whole community. The coalition
parties are anxious not to cause an injustice to anyone.
The motives behind the contributions by the honourable members for Albert Park
and Melbourne are that justice should be done; and government members have
spoken in this debate on behalf of justice. Working together as a community and a
Parliament I hope we can have a better system of justice as a result of this legislation
and an ongoing monitoring of its operation by the Attorney-General and her
department.
(Again;
The legislation puts defendants on the same footing as victims, witnesses for the
prosecution and members of the general community.

Page 343
And
I ask the Attorney-General to monitor the operation of the legislation in the courts and if
for instance it appears that some injustices occur whereby judges are not capable of
ensuring a fair trial in every case, because of the abolition specified in the Bill or that
certain groups are being disadvantaged as a result of the legislation, to review the situation
and take action to ensure that justice is being done. The purpose of the legislation is to
ensure a fair go for the whole community.
And
HYPERLINK
and+(+data+contains+'sworn'+and+data+contains+'statement'+)&db=h Mrs WADE (Attorney-
General) –
We are not alone because a number of other States and countries including the
United Kingdom and Canada have removed the right to give unsworn evidence or
an unsworn HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match14"
statement . Canada gave away that right as long ago as the 1890s when the right
of an accused to give HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l
"match15" sworn evidence was introduced there.
When searching through the United Kingdom debates when the right to give
evidence was introduced, I noted that the issue of abolishing unsworn evidence was
not mentioned. Perhaps it was an oversight. That may have also been the situation in
Australia.
(Again;
When searching through the United Kingdom debates when the right to give
HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match16" sworn evidence
was introduced, I noted that the issue of abolishing unsworn evidence was not mentioned.
Perhaps it was an oversight. That may have also been the situation in Australia.
And
As I have said, the contributions to the debate by non-lawyers were particularly

important. The honourable members for Mornington, Ballarat East and Glen
Waverley expressed the concerns of the community about the present situation and
the fact that they do not feel a fair go is being given in our courts when it comes to
giving evidence. The example given by the honourable member for Ballarat East
was most compelling. It is not an isolated example. It is similar to a number of
stories I have heard, particularly from rape victims, about their experiences in
having to give evidence repeatedly and being cross-examined for many days
on end only to hear the accused finally give unsworn evidence.
HYPERLINK
Page 344
Whatever one may think about that, such legislation has an impact on the confidence
of members of the public, victims and their families and friends.
And
If people are so incapacitated that they are not in a position to give evidence --
sworn or otherwise -- the right to give unsworn evidence is irrelevant. Those people
whose incapacities do not interfere with their right to give unsworn evidence should
be in the same position as those who choose to give evidence before a court. Also, a
judge has the power to determine how any cross-examination occurs and to place
any limits on questions put to an accused.
So far as those who are unrepresented are concerned, generally people are represented in
court proceedings and, notwithstanding the difficulties associated with legal aid, that
situation will continue in Victoria. Nevertheless, the issues raised are important. I am
prepared to give an undertaking that the new legislation will be carefully monitored and, if
there is need for change after the enactment of the Bill, it will be examined by the
government in the appropriate way -- whether by amending the Evidence Act or doing
FAILURE OF PROPER HAVING ELECTION PROCEDURES IN PLACE
Rather strange indeed absurd is that no one ever in more then 100 years since Federation
bothered to set out the correct election procedures. Indeed, due to my ongoing complaints it
eventuate to be revealed none existed that was to be relied upon by anyone to be able to ensure it
is all done appropriate. To avoid misconceptions I am therefore setting out one below.
Firstly, the Australian Electoral Commissioner has failed to have any proper procedure in place
that the election timetable is verified against the relevant legislative time tables. Hence, the Prime
Minister, the Governor-General, the governors, etc are all misled by incorrect information being
published by the Australian Electoral Commission.
There proved to be no system in place that ensured that the Australian Electoral Commissioner is
formally advised that an election is to be held. Indeed the Australian Electoral Commissioner
himself before the JSCEM (Joint Standing Committee on Electoral Matters) on 18 August 2002
admitted that he had relied upon a “press release”.
As such there is no system in place that the Australian Electoral Commissioner checks if the
relevant Proclamation is actually Gazetted and published, as had he done so then he would have
been aware that the Proclamation never was published on 8 October 2001 prior to the Writs
being issued that very day.
Because the Australian Electoral Commissioner prepares the Writs, seemingly as an unofficial
capacity, then the Governor-General may very well rely upon the Australian Electoral
Commissioner to point out any conflict of the draft writs prepared by the Australian Electoral
Commission versus any relevant legislative provisions, such as relevant time tables.
It appears to me that the Governor-General relies upon the Australian Electoral Commission to
ensure the draft writs are correctly prepared according to the relevant legislative time tables,
whereas the Australian Electoral Commissioner seemingly does not hod this to be his function,

Page 345
and hence incorrect timetables result by this to be in the writs, making the writs defective and so
ULTRA VIRES.
There appear to be no system in place that ensures that the Office of the Governor-General and
or the Australian Electoral Commissioner continue a supervisory role as to the publication of the
proclamation actually occurring when required. Hence, it never was published on 8 October
2001.
Members of Parliament have no system in place as to check for themselves if in fact the
Proclamation to prorogue the Parliament and to dissolve the House of Representatives actually
was published, but seemed to have vacated the parliament upon a presumption it occurred.
Hence, not a single Member of Parliament attend to any required sitting day, even so the
Proclamation not having been published when required, prior to the purported prorogue of the
Parliament therefore there was no Prorogue of the Parliament.
There appear to be no system in place as to verify if the time table listed in the draft writs in fact
do provide for the periods “shall not be less than” as required by the relevant legislative
provisions.
There appear to be no system in place that in the even a Proclamation is not published when
required and/or writs are issued defective then any alternative election date is allocated that
would still allow for an election to take place where the original election date no longer can be
maintained.
There appear to be no system in place that the Office of the Governor-General, the Office of the
Prime Minister, the Offices of the Governors or other person check and verify that the timetables
in the writs reflect the timetables in the relevant legislative provisions.
There appear to be no system in place that provide for a immediate emergency sitting of the
Australian Electoral Commission to deal with issues such as those I raised in my 20 October
2001 email, as to take whatever immediate action that may be required as to seek to avoid the
problems to further escalate.
There appear to be no system in place that prospective candidates who were wrongly refused to
nominate still can be allowed to stand in an election,.
Indeed, there appear to be no system in place of even keeping records of those who were refused
to nominate as a candidate!
There is beyond doubt one system in place and that is that the Australian Electoral Commission
has unlimited resources, both financial and (so to say) legal eagles, as to seek to frustrate any
objector to achieve anything, being it in Court or otherwise!
If the Australian Electoral Commissioner cannot even manage the basic issues required to be
done to be able to commence an election process then how can any Court make any adjudication
against a alleged offender of the charge failing to vote, where the root of the problems lies with
the Australian Electoral Commissioner himself.
In my view, the Australian Electoral Commissioner should be impartial but cannot be so where
he is in charge of conducting the election and supervise it also. There is clearly a conflict of
interest there and practice has proven that the Australian Electoral Commissioner ignore his
supervisory role then and rather persist at all cost with pursuing wrong doings.
Surely neither the Prime Minister, the Governor-General or the Australian Electoral Commission
can overrule constitutional and/or legal provisions is clearly answered by the Hansard records of
the 14-4-1897 where it was made clear that the Constitution binds the Crown and all officials. As
such, there cannot be an issue that the Governor-General issuing a writ in defiance of legislative
provisions then such writs is binding, as clearly the writ will be ULTRA VIRES. Likewise, it
cannot be (as counsel of the Commonwealth DPP argued using the Kelly case, that the Australian
Electoral Commission is bound by the writs, as clearly there is no such thing as a
Commonwealth officer acting in breach of law. Neither could the AEC benefit from its own
Page 346
crimes, to have given the Governor-General draft writs in breach of legal provisions and then
having the Governor-General issuing those writs claim the benefits of this. To allow for such
practices would mean anyone could deceive a bank teller and then when the bank teller pays out,
having been deceived then the person having deceived the bank teller, without any intention of
the bank teller to do but what is legally applicable, then could claim that not he but the bank
teller acted wrongly and so can benefit of his own originated crime. The signing of writs, being
it by the Governor-General or by any governor is a prerogative function that is required but does
not itself entitles anyone to then act in breach of law. Any writs that is issued in conflict of
legislative provisions simply is ULTRA VIRES. It has no legal enforcement, as it is not
“according to law” as was intended by the person so signing it. Likewise so with the
Proclamation by the Governor-General. The governor-General has the constitutional powers to
call a general election, and when doing so he may act upon the advise of the Federal Executive.
If then the Federal Executive fails to ensure that the Governor-General proclamation is
published, then it cannot rely upon the benefits of this defect to still have the proclamation
enforced. The Governor-General does no more but issue the proclamation which is he is bound
to issue “according to constitutional and other relevant legislative provisions”.
While even on election day it was shown on 10 November 2001 that the Australian Electoral
Commission (a Saturday) was able to get a hearing before the Federal Court of Australia against
Pauline Hanson One Nation (Victoria) the same does not exist for a objector against any alleged
wrongdoing by the Australian Electoral Commission.
What appears to be is that no one ever contemplated that the Australian electoral commissioner
may act with gross incompetence and/or lack proper competence to provide for a FAIR and
PROPER election process and hence no system was put in place to ensure that an objector could
have matters addressed as a matter of urgency before the election was to take place, as the
Framers of the Constitution intended when they made known that problems should be addressed
as a matter of urgency so that a new election could take place before the Parliament would sit.
This clearly is not provided for with the Court of disputed Returns system as such. And not at all
in the circumstances I took offence with and objected against each and every writ as being
defective and so ULTRA VIRES.
It is like the WEAPONS OF MASS DESTRUCTION, everyone makes claims about the
election but there is no one competent enough to check if it actually exist or that it is a LEGAL
FICTION where the proclamation is defective and so are the writs!
About politicians
Perhaps the expressed opinion quoted below may indicate that the Framers of the Constitution
did have their own reservation about what politicians are about. It is therefore the function and
indeed the obligation of judicial officers to remain impartial, and to adjudicate upon what
constitutional provisions are really about and not upon FICTIONAL legal issues that suit
politicians and other wrongdoers.
Mr. DOBSON.-I admit that is a most powerful argument, and if you were talking to
another Convention, or to men with judicial minds, who would take into consideration not
only what was fair to each state but what was in the interests of Federated Australia,
putting state interests on one side altogether, I would agree with the honorable member.
But I ask myself, who will be the men who will compose the Federal Parliament?
They will be exactly the same class of politicians as we have in our states Parliaments.

Page 347
Mr. HOLDER.-And therefore you mistrust them.
Mr. DOBSON.-I am not going to trust them in this matter, and I will give my
reasons. Whatever the Constitution may be-conservative, democratic, or radical-I shall be
loyal to my fellow workers, and go back to my own colony and speak whenever I am
required or asked to do so, in order to urge the electors to adopt the Constitution. Now,
putting all questions of conservatism or liberalism aside, I shall be obliged to say-Here is
Tasmania, with its smaller purse than the larger colonies, and it cannot afford to enter the
Federation. My poverty and not my will may compel me to say-"For a time we must stand
out." I now come back to the question I have already asked-Who will be the men
composing the Federal Parliament? You will have the enlightened politician, the
representative in every sense of the word, who would never consent to become the delegate
of any constituency. Then you will have your politician who goes in as the mere delegate
of a constituency. You will have the politician who desires to be a national representative,
but in a rash moment on the hustings he will give one pledge-and probably the one pledge
will be on this financial question-which he ought not to give. You will have other men who
are always trying to catch the popular breeze and to dodge the unpopular breeze, who wish
to find out before they vote how their constituents want them to vote-and that is a very
important aspect of a politician's life. You will also have the politician who has once been
lashed by the press, and who does not wish-to be whipped again. He will wait to see how
the cat jumps before he votes. Let me say at once that I am not prepared to trust the Federal
Parliament on a question of that sort as implicitly as I would trust it to do what is fair and
right in matters of general legislation. Let me give an illustration of what I mean: Five men
are entering into a partnership; they put in a certain amount of capital, and they arrange
how they are going to draw out the profits for five years. At the end of five years they are
going to leave it to a new adjustment.
Mr. HOLDER.-They are going to adjust it according to their better knowledge.
Mr. DOBSON.-At the end of the five years' term one will say-"I have brought all the
best clients"; another man will say-"I got you that magnificent piece of business"; a third
man will say-"I did the block, and kept up the good name of the partnership with the
outside public"; the fourth will say-"I have done all the hard work, and I have always been
found in the office"; the last man will jump up and say-"Confound you all, I have got all
the brains." So you will go on, if you hand over this question to be settled by the Federal
Parliament. You [start page 874] will have delegates from each colony trying to point out
why the per capita distribution is unfair, and why we should not have a common purse.
There will be a boom in one colony, and that colony will say that it must have the lion's
share. Another colony may be suffering temporary depression, and the other people will
say they should have the smaller share, and for all time, probably, you will keep up the
difference between state and state, and you will not become one people except in name.
BEING AGRIEVED
Re: Sidebotham (1880) 14 Ch D 458 James LJ

“A person agrieved must be a man who has suffered a legal grievance, a man against whom
a decision has been pronounced which has wrongfully deprived him of something or
wrongfully refused him something, or wrongfully affected his title to something.”
Privy Council in Att Gen of Gambia v N'Jie (1961) AC 617

Page 348
“But the definition of James LJ is not to be regarded as exhaustive. Lord M R pointed out in
Ex Parte Official Reciever, re Reed Bowen and Co. (1887) 19 QBD 174 at p178. The
words person aggrieved are of wide import and should not be subjected to a restrictive
interpretation. They do not include, of course, a mere busy body who is interfering in things
that do not concern him; but they do include a person who has a grievance because an order
was made which prejudicially affects his interests.”
The fact that I ended up with a criminal conviction, no subject to an appeal for a hearing DE
NOVO on 17 November 2005 as result of the conduct by the Commonwealth of Director of
Public Prosecutions to pursue vexatious charges in the manner he did, then, I view, I am rightly
AGRIEVED.
These proceedings against me by the Commonwealth Director of Public Prosecutions in my view

were a gross abuse of the legal processes and seems to be some kind of vendetta against me for
daring to expose what was done unconstitutionally and illegally in regard of purported elections.
FAIR and PROPER elections do not exist if objectors are going to be pursued to such extend,
where all that was required to avoid this entire dilemma from onset would have been for the
Australian Electoral Commissioner to have followed the very legal processes his lawyers
indicated to be followed in their 25 October 2001 correspondence and that being proceedings
before the Federal Court of Australia. In my view it is preposterous that the Australian Electoral
Commission’s lawyers can recommend a course of legal action and then when this is followed to
oppose the jurisdiction of the Court. In my view this kind of conduct indicates that the Australian
electoral commission employs, so to say, dirty tactics to railroad genuine objections made and
use the Courts as a weapon in its favour and ensure a gross denial of any FAIR and PROPER
elections being held. Elections are not completed unless each and every objection has been
appropriately resolved.
Having elections conducted in breach of constitutional and other relevant legal provisions also
denied me of my right to have representatives elected in appropriate manner. Indeed the rest of
the community was robbed by this also of their representatives being properly elected.
It is a very serious issue, indeed undermining the entire democratic system where those put in
charge of holding FAIR and PROPER elections are the very one who are abusing and misusing
their position and by this causing untold harm to the general community.
At the time I objected to the incorrect time tables being used, there was the great “children
overboard” issue going on and any delay in holding the election could have made a considerable
difference as to which candidates would have been elected and which political party would have
been successful in the election (purported election) hence, I view, so to say, all stops were pulled
out as to ensure that no matter how unconstitutional and/or illegal the election process was the
election had to proceed, even if it was meaning to deceive the Courts as to its jurisdiction. As Mr
Perter Hanks QC appearing for Australian Electoral Commission was involved in by making
false and misleading statements to the Court (Marshall J) even to have purportedly quoting an
authority having substituted some words of the quotation without making this known to the trial
judge, as I have well documented in my material filed in past litigation.
It is my view that this seriousness of election fraud, as I view it to be, demands a ROYAL
COMMISSION as after all, where elections can be tempered with as to seek to ensure that
certain paries may retain power of government then this is a very serious matter that cannot be
ignored.
No judicial officer should accept that even those kind of allegations are left unattended and
ought to ensure that one way or another they are properly investigated, as after all judges are not
just judicial officers but have sworn to uphold the law and remain themselves OFFICERS OF
THE COURT.

Page 349
The risk any judicial officer may take is to ignore matters to be reported to be properly
investigated may risk to be himself/herself failing to adhere to sworn duties toward the Crown to
uphold the law, etc.
This ADDRESS OF THE COURT could not possibly detail all matters in full detail, and is
neither intended to do so, as it would take thousands of pages to do so, but already ought to give
ample of indications that the purported elections were never constitutionally and legally valid.
Thereby, I am aggrieved also that I am, as like other Australians, robbed of having a duly elected
government, both in 2001 and in 2004.
We may never have had the murderous armed invasion into the sovereign nation Iraq, had an
election in 2001 been rescheduled to be held according to constitutional and other relevant legal
provisions as this may have resulted to a different political party being in power who would not
have been, so to say been warmongering.
Neither would likely many unconstitutional legislative provisions have been enacted and as such
the conduct of the Australian Electoral Commission, so its lawyers, to prevent a valid election to
be held is a very serious matter then cannot and neither must be ignored.
The Commonwealth Director of Public Prosecutions has placed before the Court matters as to
seemingly enforce Commonwealth law, and so this court then is placed in a position to address
matters in a appropriate judicial manner, even so this might not particularly be what the
Commonwealth Director of Public Prosecutions had anticipated, or had in mind.
The fact that the Printer had on some of the delivery documents recorded that the despatch of the
Special Gazette was on 9 October 2001, even so the very document shows to have been printed
on 10 October 2001 also may indicate that on the face of the evidence already presented during
past proceedings there is justified concern that something serious untowards in elections
occurred. Only a unbias proper investigation may establish the truth of matters.
On 2 November 2001 I appeared before Finkelstein J of the Federal Court of Australia and His Honour
then directed for me to serve documents for the first respondents also on the Australian
Government Solicitors. This I did on 2 November 2001 and I filed an Affidavit sworn 5
November 2001 setting out what had occurred and the acceptance by the Australian Government
Solicitors of service for all respondents.
During a subsequent hearing before Marshall J of the Federal Court of Australia, Mr Peter Hanks
QC appeared as Australian Government Solicitors counsel and made known to the Court that he
was representing the Australian Government Solicitors, the Commonwealth would accept any
order made and didn’t disclose anything he ought to have disclosed to the Court as to that the
AGS had not notified the first Defendants. He certainly didn’t notify the Court of allegedly
having been unable to receive instructions from the Governor-General, as Mr Stephen Lucas,
Senior Executive Lawyer with Australian government Solicitors claimed in his 9 August 2002
faxed letter to me. That letter was in view of my appearance before the JSCEM hearing in
Windsor Hotel on 12 August 2002 as a witness, in view of past correspondence.
Mr Lucas in that 9 August 2002 letter then claimed that the AGS didn’t accept service for the
Governors.
Obviously, if Mr Lucas had been correct, which I contest, then it would have been required that
Mr Peter Hanks QC would have contested my 5 November 2001 affidavit material of service as
to have made known to the Court that the AGS contested it. This was not done.
Neither did Mr Peter Hanks QC advise the Court that the AGS had been unable to obtain
instructions of the Governor-General!
Page 350
As such, the UNCONTESTED evidence before the Court then was that the AGS had accepted
service for all Respondents.
While I am aware that there might be an issue that proper service ought to be done upon all
Respondents themselves, in the circumstances of limited time etc, it appears to me that His
Honour Finkelstein sought to have such urgent matter speedily done with, and as such, I view,
was entitled to make known that service on the AGS, if they accepted, would be sufficient.
The AGS simply could have refused to accept such service, this they didn’t and neither, as stated
previously, did they object on 7 November 2001 before Marshall J about the service upon them.
The AGS could have contacted all first Defendants and then all first Defendants could have
simply decided to have their own legal representatives, in view, as now appears to me, there was
a conflict of interest for the AGS to act for the AEC and for all first Defendants and the
Commonwealth.
This, as all first Defendants had issued “writs” that stated “according to law”, whereas the AEC
and the Commonwealth sought to have elections in breach of law and the writs were incorrectly
drafted.
From the transcript at pages 8 and 9 of proceedings before Finkelstein J on 2 November 2001
Federal Court of Australia!;
MR SCHOREL-HLAVKA; “I’m not necessarily, at the moment, disputing the election.

I’m disputing the writs.”
HIS HONOUR; I understand.
MR SCHOREL-HLAVKA: So that’s different, sir. At least nobody say I’m crying sour
grapes for not winning whatever an election ---
HIS HONOUR; Because you haven’t lost yet.
MR SCHOREL-HLAVKA; That’s right. I haven’t lost yet. I’m doing before it.
It must therefore be clear that I was contesting the validity of the writs, not the election(s) itself!
As such, Marshall J on 7 November 2001 arguing otherwise clearly ignored the true issues before
the Court.
Extensive communication occurred since the proceedings with the Solicitor-General of Tasmania
but to no avail in the end.
It appears that there is a general misconception that as the election was held that is the end of the
“injunction” sought!
I offcourse have no such view.
The issue is that I contested the writs and I requested the court to order the reissue of the writs!

Page 351
As such, if the writs are unconstitutional/unlawful and are ULTRA VIRES, then it makes not one
iota difference if any purported election had been held as simply the purported election was
“technically” never occurring.
The validity of the elections is pending upon the validity of the writs!
As such, if I can establish that the writs are defective and so ULTRA VIRES, then that is the
completion of my case and my injunction sought then is as valid now as was then!
The injunction also sought other relief about issues that are still current, such as, to stop the
Australian Electoral Commission to publish false and misleading details.
.V1145/2001 7.11.01 P-21

Commonwealth of Australia
Commission has the option of making a new date which (indistinct) prime
minister or return the writs. That was not done. So that's what I'm saying. The
Australian Electoral Commission also in my view had no power to close the
offices on Saturdays and Sundays.
5
HIS HONOUR: Have you seen Mr Hanks' written outline? Can I direct you
to paragraph 14 of that, page 3. He raises issues there as to why section 383 in
the circumstances of this case doesn't invest this court with jurisdiction. What
is your response to what is said there?
10
MR SCHOREL-HLAVKA: Well, your Honour, section 353 is, as I stated - - -
HIS HONOUR: As I take it, you rely on section 383.
MR SCHOREL-HLAVKA: I have here, your Honour. 15
HIS HONOUR: And Mr Hanks says why, in short compass, you can't. I'm
just interested in your response to that.
MR SCHOREL-HLAVKA: Your Honour, it is my view that section 353 is 20
subject to the alteration made since by parliament by section 383.
HIS HONOUR: Yes, I understand that.
MR SCHOREL-HLAVKA: Therefore I am saying that the validity of the 25
election in itself cannot be held (indistinct) Australian electoral commissioner
can ignore the rules of law of the Electoral Act. Therefore I'm saying that is
not the validity of the election in itself which is disputed after an election has
been held. Then you dispute the validity. What I am disputing is the process,
your Honour, and the conduct. 30
HIS HONOUR: I understand.
I repeat;
MR SCHOREL-HLAVKA: Therefore I am saying that the validity of the 25

election in itself cannot be held (indistinct) Australian electoral commissioner
can ignore the rules of law of the Electoral Act. Therefore I'm saying that is
not the validity of the election in itself which is disputed after an election has
been held. Then you dispute the validity. What I am disputing is the process,
your Honour, and the conduct. 30
HIS HONOUR: I understand.
Page 352
Further;
.V1145/2001 7.11.01 P-22

governor-general?
MR SCHOREL-HLAVKA: What I'm saying, I have sought - request, that is
called, because it may not be an order - request the governor to reissue writs.
That can only be a request but - - - 5
HIS HONOUR: Are you seeking that I make any orders against any governor
or the governor-general?
MR SCHOREL-HLAVKA: No, I understand that. 10
HIS HONOUR: You're not?
MR SCHOREL-HLAVKA: No, I understand that. I have it in my wording
"request". I use that wording "request". But what I'm saying is that the 15
injunctions for 383(1)(b), "in any case the electoral commissioner" - it is very
clear that the parliament understood that if the Australian Electoral
Commission is in breach of this act, someone can go to court and take them to
account.
20
HIS HONOUR: No, what's said there is that they can take a case.
MR SCHOREL-HLAVKA: I beg your pardon?
HIS HONOUR: What's meant there is that they have the standing to bring the 25
case here.
MR SCHOREL-HLAVKA: Sorry, I can't hear your Honour.
HIS HONOUR: It simply indicates that an injunction may be sought to 30
restrain certain conduct on the application of, that is, the initiative of, a
candidate or the Electoral Commission.
MR SCHOREL-HLAVKA: That's right. Now, I'm saying here on the
applicant of the candidate, which I can, right? 35
HIS HONOUR: Yes.
MR SCHOREL-HLAVKA: As I said previously, the Australian electoral
commissioner has only been given power under this act to act in accordance to 40
the act. Therefore I'm saying, your Honour, where the Australian Electoral
Commission now is in making an offence against this act or any other law of
the Commonwealth, which is the Constitution, which I quoted before in my
affidavit, therefore this court has the power to make an order for an injunction
against the Australian electoral commissioner not to proceed with an election. 45
HIS HONOUR: But if I had jurisdiction to do that, why would I do it in
circumstances where all the Australian Electoral Commission is doing is
complying with a timetable that resulted from acts made by governors and the
.V1145/2001 7.11.01 P-23
governor-general?
MR SCHOREL-HLAVKA: No. The electoral commissioner is by law bound
to apply to law, not to a political decision, therefore his priority is an obligation
to the legislator, which is the act. 5
HIS HONOUR: But the steps that have been taken in accordance with the
timetable that has been made has got nothing to with the Australian Electoral
Commission.
10
MR SCHOREL-HLAVKA: No, but a timetable of the writs itself, as I
Page 353
indicated before, is a political decision, not an executive decision.
HIS HONOUR: But it's not a decision by the Australian Electoral
Commission. 15
MR SCHOREL-HLAVKA: No, but therefore he is not bound by it when it
conflicts with the Australian Electoral Act. So if the Electoral Act dictates a
different version, then the Australian Electoral Commission is bound to comply
with the act, because otherwise the prime minister could say, "I'll have an 20
election tomorrow."
HIS HONOUR: So you say that the Australian Electoral Commission is
engaging in conduct which constitutes a contravention of the act - - -
25
MR SCHOREL-HLAVKA: Exactly.
HIS HONOUR: - - - by continuing on with the election in circumstances
where the steps taken by the governors and the governor-general were illegal?
30
MR SCHOREL-HLAVKA: And also by engaging in conduct which is not by
the writ but having closed its offices over Saturdays, Sundays. Despite having
been notified by me that they were breaching the act, they have continued to do
so. There are various other issues I have raised, such as having people
canvassing on the property of the electoral office commission when people are 35
doing voting. So they are canvassing there on the property, which is improper.
So there are a quite a few issues that I've raised, but basically what I’m saying
is this court has jurisdiction because the Australian electoral commissioner is
not bound by the writ in itself because that can be withdrawn. His prima facie 40
responsibility is to the legislator, to the act. I believe that whether or not the
writs are having a date is a secondary issue, but it could not override the
commissioner's obligation to the parliament, because if this court were to
accept that, then what I'm saying is that a political decision of one person,
which happened to be the prime minister, would override the wishes of the 45
legislators which is done by the joint parties.
The writs do no more but to facilitate the election process and must facilitate the election
process within the terms of legislated provisions applicable. The Governor-General has no
Constitutional Powers whatsoever otherwise to direct the holding of any elections in breach of
legislative provisions. The Governor-General as such is bound by constitutional limitations to
issue writs “according to law”. Likewise so the Governors, where they stated in the writs
“according to law”.
Perhaps the following may indicate the bias of the Court in the proceedings;
.V1145/2001 7.11.01 P-20

HIS HONOUR: I understand what you're talking about. I want to be

addressed on jurisdiction.
MR SCHOREL-HLAVKA: Yes. So - - - 30
HIS HONOUR: Don't steal the show.
MR SCHOREL-HLAVKA: What I - - -
35
Page 354
HIS HONOUR: This is my show - - -
It doesn’t make sense to me for any judge to make such a comment!
Then the same with Finkelstein J on 2 November 2001;
.V1145/2001 2.11.01 P-8

HIS HONOUR: But if you speak to the Australian Government Solicitors 30

office, then you probably will avoid the need of going to the governor's house
or sending the process server - - -
MR SCHOREL-HLAVKA: Yes, I understand that, your Honour.
35
HIS HONOUR: If you try and do that, you'll probably get arrested or
something.
I repeat;
HIS HONOUR: If you try and do that, you'll probably get arrested or
something.
That my 5 November 2001 sworn Affidavit that was before Marshall J stated (and this was not contested
by the Australian Government Solicitors at the time of the hearing);
4. That for the above stated, I filed the Form 4 on the 2nd day of November 2001
without any provisions of ORDERS SOUGHT, albeit I indicated in the supportive
affidavit, sworn on the 2nd day of November and filed the same day, that I sought
certain orders, such as indicated in paragraph 8 and 16 of the said affidavit.
5. That His Honour indicated that it was better to serve the Australian Government
Solicitors as quick as possible, and as the hearing concluded about 4 PM (thereabout),
I attended to the Australian Government Solicitors office (thereafter), and was
advised that the Director would attend to me. I asked for the name of the Director to
be written down for me, and I was handed a note, which appears to show the name of
the Director to be Mr Martian Brulkand.
6. That Mr Martian Brulkand referred to the Governors being stated as respondents, and
I indicated that I sought the Australian Government Solicitors to accept service for the
Governor General and all Governor’s of the States in view that the said Governors all
acted upon instructions of the Governor General to issue Writs. I further indicated that
the heading included for the Commonwealth of Australia also for the Australian
Electoral Commission. Upon this, the Director accepted service of the documents,
which were filed on the 2nd day of November 2001 and were before His Honour
during the EX PARTE proceedings.
It is obvious that neither on 2 November 2001 or during the proceedings before Marshall J the
Australian Government Solicitors indicated not accepting or having accepted service for all
Respondents!
Indeed, the claim by Mr Lucas that he couldn’t obtain instructions from the Governor-General rather
indicates that the AGS accepted service for the 1st Defendants!

Page 355
However, if Mr Lucas claim was true of not having been able to obtain instructions from the Governor-
General then clearly all Mr Peter Hanks QC had to do was to inform the Court of this on 7
November 2001. But he did nothing of that sort!
.V1145/2001 2.11.01 P-7

MR SCHOREL-HLAVKA: The form 4 indicates that I am seeking,
your Honour - - -
HIS HONOUR: If you want to tell people that you'll be asking for final relief 5
on that day, you should say so. If you're going to ask for directions on that
day, you should say so. If you want to ask for interlocutory injunctions on that
day, you should say that, because when the people come along to court, they
must know what it is is going to happen on that day.
10
MR SCHOREL-HLAVKA: I'm seeking in here that the writs be declared
defective and void and of no effect. I've also asked then, if the court does make
that step - or I've indicated in my affidavit that I would seek orders by this
court, if that's feasible, that those people who have done postal votes et cetera
maybe the court may make a special order to say that those votes still will be 15
acceptable for the re-issue of the writ. I don't know whether that is possible
within the powers of the court. But we're trying to do is to avoid a lot of
problems which I've tried to do for the last two weeks with the Prime Minister,
if he had done it.
20
HIS HONOUR: I suppose if you have the election put off for a couple of
weeks, that'll cause a few problems.
MR SCHOREL-HLAVKA: I look at it this way, your Honour. If there is no
doubt, and the election goes ahead at a huge cost and then the parties already 25
knowing about whoever is going to lose then - "hey, listen, he gave us a nice
trigger. We can go to court." Then we have to have a new election. That's
even worse. So it is from two bad positions, I think this is the best way to
solve it before we have the election. Now, your Honour, if you wish, I can also
of course file those documents on Monday in the High Court. But we have 30
then two courts - that whichever is applicable. I don't think that is sensible
because ultimately this matter has to be heard. If it's not by the Federal Court,
it would be the High Court. But if it's after the election, it would be the High
Court as court of dispute of return. But all I'm seeking, your Honour, at the
moment is that if your Honour believed that Mr Schorel-Hlavka seems to have 35
at least a genuine basis there what he's arguing on - I'm not asking you to judge
whether or not am I right.
HIS HONOUR: I won't.
I repeat;
MR SCHOREL-HLAVKA: I'm seeking in here that the writs be declared

defective and void and of no effect.
.V1145/2001 7.11.01 P-19

I may invite you to go to page 10 of the affidavit that was sworn on
2 November. At the bottom part of the page it shows the Associated
Dominions Assurance Society Pty Ltd v Balmford (1950) 81 CLR 161.
Page 356
HIS HONOUR: 2 November. Was that the one that was filed with the 5
original application?
MR SCHOREL-HLAVKA: That's correct, your Honour.
HIS HONOUR: What page again? 10
MR SCHOREL-HLAVKA: Number 10, your Honour, and I'm referring to the
lower part of that page, Associated Dominions. The court there painstakingly
referred to dates and also it says, if I may quote a short paragraph:
15
In the present case the documents served allowed for a period of 14
days next ensuing after 2 May 1948. The period would expire at
midnight 16 May 1948. The document ought to be dated 30 April,
but it was served on 3 May. A period of 14 days from 3 April
would expire at midnight on 14 May, but a period of 14 days from 20
3 May would not expire until midnight 17 May. Therefore the date
of the notice in the act means the date which the document bears on
its face.
Your Honour - - - 25
HIS HONOUR: I understand your argument.
MR SCHOREL-HLAVKA: What the court is saying.
30
HIS HONOUR: Excuse me. Don't speak while I'm speaking to you.
MR SCHOREL-HLAVKA: Sorry.
HIS HONOUR: I understand your argument. I understand what it was saying 35
about the timing. Can you now answer Mr Hanks's jurisdictional issue.
MR SCHOREL-HLAVKA: So, your Honour, what I am saying is that - so
with the jurisdiction is that issue, right. I've covered it well. What I'm saying
is that even so those writs may have given certain directions to the Australian 40
electoral commissioner, under the act he had to act. That is how he is
empowered. He failed to act in accordance to the legal provisions of the act.
So it is my view that the Australian electoral commissioner could have gone
back to the prime minister and indicated when the Australian Electoral
Commission was notified by me to have the writs withdrawn and reissue new 45
ones with the appropriate date. The Electoral Commission however decided in
its wisdom not to do so, the prime minister either.
It's my view, your Honour, that irrespective of what stated in the act, the
.V1145/2001 7.11.01 P-20
electoral commissioner must act in accordance to the act, because the writs are
issued by the prime minister, which is a political decision, not an executive
government decision. Therefore it would be an offence to the legislators if a
prime minister of the day, whether caretaker prime minister or not, could
short-cut an election in breach of what the parliament has decided. 5
The decision the prime minister makes of the setting of the election date, the
setting of the nomination date, has nothing to do with executive government.
The only decision he as a prime minister makes is that he must call an election
within a certain period. But when he calls it is purely a political decision. 10
Therefore the Australian electoral commissioner has an obligation to the
government, to the parliament, to the legislation, to ensure that if there is
something wrong with the writ he then will not act according to the writ but
return those writs and request the prime minister to maybe reissue them, but he
cannot act contrary to the act. 15
Page 357
Now, a further issue is, your Honour - what I'm trying to indicate is this: I
shall show that the Electoral Commission has undermined also the provisions
of the act by closing on Saturdays and Sundays. Hypothetically, if the prime
minister would have called an election on 23 December - - - 20
I repeat;
What I'm saying

is that even so those writs may have given certain directions to the Australian 40
electoral commissioner, under the act he had to act. That is how he is
empowered. He failed to act in accordance to the legal provisions of the act.
So it is my view that the Australian electoral commissioner could have gone
back to the prime minister and indicated when the Australian Electoral
Commission was notified by me to have the writs withdrawn and reissue new 45
ones with the appropriate date.
Therefore the Australian electoral commissioner has an obligation to the

government, to the parliament, to the legislation, to ensure that if there is
something wrong with the writ he then will not act according to the writ but
return those writs and request the prime minister to maybe reissue them, but he
cannot act contrary to the act. 15
Before both Marshall J and Finkelstein J of the Federal Court of Australia I set out that the reissue of
writs was what was required.
Because the governors and governor-General had issued the writs, it seems correct to have them
included in the case as Defendants.
The Governor and the governor-General each pursued the writs to be issued “according to law”. As
such, it appears that there was no intention by either the governor-General and/or any Governor
to issue a writ in breach of applicable legislative provisions.
There is however a further matter to be considered;
The publication of the writs, the timing of issue of the writs etc.
From the submission of Australian Electoral Commissioner Mr Becker to the JSCEM it is clear that the
AEC prepared the DRAFt writs for the Governor-General merely upon having received a “press
release” and not at all first to have official notification and awaiting the publication of the
proclamation of the prorogue of the parliament and the Dissolution of the House of
Representatives.
As such, there was no official form of preparation for the DRAFT writs to be correct. The AEC as such
rather then to check dates validity according to legislative provisions have admitted to the
JSCEM they rely upon the issue of a “press release”.
In my view, the governor-General ought to be well entitled to accept that where the AEC prepares the
DRAFT writs then the AEC would be competent to check the correctness of any time table
according to applicable legislative provisions. Also, that as the Commonwealth (so the AEC) has
the modus operandi of the Senate elections then the AEC would be competent to ensure that the
elections dates were appropriately to consider a coincidental election for the Senate.
Page 358
What is however shown is that the AEC was incorrectly publishing in the Pocket Handbook of Elections
on Page 27 the incorrect State legislations, not those relating to Senate elections but State
ordinary elections. As such, the AEC lacking apparently any internal check and balancing system
has gone about for years without realising it was referring to the incorrect electoral laws.
The Prime Minister of the Day, calling an election relies upon the information published by the AEC and
as this information was false and misleading, also on the AEC website, the Candidate Handbook
etc, the AEC not only misled the public, the Commonwealth and the Government but also itself.
Mr Becker as Australian Electoral Commission did apparently everything but to organise the conduct of
elections according to law.
Even the closure of electoral offices during the weekends and public holidays was contrary to the
legislative provisions of “shall not be less than” as by this in 1983 the by-election was reduced
by a massive 7 days!
However, as I see it, the gross incompetence wasn’t just with the AEC but also with other Departments.
For example I discovered that Gazette’s were not at all simutaniously issued throughout the
Commonwealth, rather that in some States no Gazette was publishe at all as such.
Take for example Special Gazette S421 that was to publish the Proclamation of the Prorogue of the
parliament and the dissolution of the House of Representatives. It was never published as such in
either New South Wales or Tasmania!
It must be clear that writs issued by the Governor-General are on a State basis, and as such, the
publication of the Special Gazette must be done on a State by State basis (Territories are quasi
States).
WATSON v. LEE (1979) 144 CLR 374
"Where any statutory rules are required by any Act to be published or

notified in the Gazette, a notice in the Gazette of the rules having been
made, and of the place where copies of them can be purchased, shall be
sufficient compliance with that requirement." (at p379)
6. The primary means of notifying the terms of a regulation which has been
made is by its publication in full in the Gazette. What is required by HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s48.html" s. 48
(1) is notification of the regulation, not of the fact of its making or of the
date of its making. In my opinion, the notification of a regulation involves
the bringing to notice of its actual terms. Thus, in my opinion, HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s48.html" s. 48 (1) of
the HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/"
Acts Interpretation Act really requires the terms of the regulation to be
published in the Gazette. It must be accepted that such publication places the
citizen in the position of being able to inform himself of the terms of the
law by which he is to be bound. (at p379)

Page 359
Meaning, that unless the Proclamation can be proven to have been provided for sale to the
citizen, there was never any publication on 8 October 2001! If there no publication on 8 October
2001, then the issue of the writs also was not constitutional possible!
As you are well aware, in view of your evidence given to the JSCEM) I am currently having
litigation against the Australian Electoral Commission, the Commonwealth and all Governors as
well as the Governor-General before the High Court of Australia!
Again also;
It must be accepted that such publication places the
citizen in the position of being able to inform himself of the terms of the
law by which he is to be bound.
Meaning that the Gazette must be actually published in every Member State to be effective!
Writs are being issued for each member State separately and can’t be constitutional valid unless
first a writs in regard of the Proclamation was first Gazetted in that member State.
Details now obtained under the FOI Act, albeit with about 8 months delay, shows that at no time
was Special Gazette S421 containing the Proclamation actually published in New South Wales or
Tasmania! In Canberra it was on 9 October 2001, In Victoria 10 October 2001, and so on!
As such, each and every writs was issued PRIOR TO the proclamation being actually published.
PM - Monday, 19 September , 2005 18:42:00

Minchin renews voluntary vote call
MARK COLVIN: The Federal Minister for Finance, Nick Minchin, has renewed his call
for voluntary voting in Australia.
And
ALEXANDRA KIRK: But the Prime Minister hasn't sought fit to do so, so far.
NICK MINCHIN: Well his personal view, I know, and he's expressed it publicly, is that he
thinks you shouldn't be guilty of an offence for not voting.
ALEXANDRA KIRK: But he accepts the system as it is.
NICK MINCHIN: Well it's a question of whether the Coalition parties and Members of
Parliament are prepared to agree that when we go to the next election, we should propose
to the people that you no longer be forced to vote and then if we're successful at the
election, then we look to introducing that in the next term of parliament.
ALEXANDRA KIRK: Has the Prime Minister given you any indication that he'd be
willing to do that?
NICK MINCHIN: We haven't discussed it. I think it's a matter of letting the debate ensue,
and testing the waters, and seeing what the views are within the Coalition.
ALEXANDRA KIRK: And have any of your colleagues in the Coalition given you any
cause for optimism?
NICK MINCHIN: Oh there are many, many Liberals who share my view, from the Prime
Minister down, so I hope we can build a consensus around what is a very liberal position
Page 360
on this issue, and that we can give Australians the right that New Zealanders have.
www.Geography.about.com
Compulsory Voting
Over twenty countries have some form of compulsory voting which requires citizens to
register to vote and to go to their polling place or vote on election day.
With secret ballots, it's not really possible to prove who has or has not voted so this
process could be more accurately called "compulsory turnout" because voters are
required to show up at their polling place on election day.
One of the most well-known compulsory voting systems is in Australia. All Australian
citizens over the age of 18 (except those of unsound mind or those convicted of serious
crimes) must be registered to vote and show up at the poll on election day. Australians
who do not vote are subject to fines although those who were ill or otherwise incapable
of voting on election day can have their fines waved.
Compulsory voting in Australia was adopted in the state of Queensland in 1915 and
subsequently adopted nationwide in 1924. With Australia's compulsory voting system
comes additional flexibility for the voter - elections are held on Saturdays, absent voters
can vote in any state polling place, and voters in remote areas can vote before an
election (at pre-poll voting centers) or via mail.
Voter turnout of those registered to vote in Australia was as low as 47% prior to the
1924 compulsory voting law. In the decades since 1924, voter turnout has hovered
around 94-96%.
In 1924, Australian officials felt that compulsory voting would eliminate voter apathy...
"Compulsory voting would cause in a short time...a wonderful improvement in the
political knowledge of the people" (Jaensch, 20)
However, compulsory voting now has its detractors...
"Compulsory voting has not contributed to the serious political education of the
electorate; it may have even discouraged it." (Jaensch, 20)
In their Fact Sheet on Voting, the Australian Electoral Commission provides some
arguments in favor and against compulsory voting.
Arguments used in favor of compulsory voting:
 Voting is a civic duty comparable to other duties citizens perform

(e.g. taxation, compulsory education, or jury duty).
 Parliament reflects more accurately the "will of the electorate."
 Governments must consider the total electorate in policy
formulation and management.
 Candidates can concentrate their campaigning energies on issues
rather than encouraging voters to attend the poll.
 The voter isn’t actually compelled to vote for anyone because
voting is by secret ballot.
Arguments used against compulsory voting:
 It is undemocratic to force people to vote - an infringement of

liberty.
 The "ignorant" and those with little interest in politics are forced to
the polls.

Page 361
 It may increase the number of "donkey votes" (bad votes that don't
get counted).
 It may increase the number of informal votes (ballot papers which
are not marked according to the rules for voting).
 It increases the number of safe, single-member electorates -
political parties then concentrate on the more marginal electorates.
 Resources must be allocated to determine whether those who
failed to vote have "valid and sufficient" reasons.
While it may be argued that the Commonwealth simply followed the path of the States as to
introduce compulsory voting, this cannot be excused as such. The States have legislative powers
in regard of religion, the Commonwealth of Australia is prohibited this power. Hence, the
Commonwealth of Australia being specifically denied constitutional powers to compulsory have
registration and voting therefore cannot follow what the States may have done.
The following 27-10-2001 correspondence (and the subsequent 18-11-2001, 17-12-2001 and 12-
8-2002 correspondence being some others of a range of correspondences) being before the
litigation commenced, and any purported election was held, may indicate that the Defendant did
provide a considerable amount of information from onset the Australian Electoral Commissioner
but he might as well have forwarded blank pages as it was being ignored. This, from a person
who is appointed to ensure that elections are FAIR and PROPER.
Re- RELIGIOUS OBJECTION
As stated above, the definition “religious objection” is as such unconstitutional (Section 116 of
the Constitution) unless it includes secular objections.
http://www.vaccineinfo.net/exemptions/relexemptlet.shtml
Hints for Religious Exemptions to Immunization

Please read the text below before you download, print, or use the sample religious
exemption letter and support materials provided in the following link:
Sample Religious Exemption Letter and Supporting Documentation
Refer to the statutes. The laws require that immunization must conflict with the tenets and
practices of a recognized or organized religion of which you are an adherent or member.
However, the law does not require you to name a religion at all. In fact, disclosing
your religion could cause your religious exemption to be challenged.
And
Some schools and daycares attempt to require you to give far more information than
required by law. You are not required by law to fill out any form letters from a school or
daycare. The law allows you to submit your own letter and the letter only needs to meet
the bare requirements of the law. Keep it simple; do not feel you need to describe your
religious beliefs here as that also is not required by law.
And
Many times, when a school or day care questions your exemption, they are merely
unfamiliar with the law or trying to coerce you to go against your beliefs by
Page 362
deliberately misrepresenting the law. They are betting on the fact that you don't know
your rights.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=398&invol=333
U.S. Supreme Court

WELSH v. UNITED STATES, 398 U.S. 333 (1970)
398 U.S. 333
WELSH v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 76.
Argued January 20, 1970
Decided June 15, 1970
Petitioner was convicted of refusing to submit to induction into the Armed Forces despite his
claim for conscientious objector status under 6 (j) of the Universal Military Training and Service
Act. That provision exempts from military service persons who by reason of "religious training
and belief" are conscientiously opposed to war in any form, that term being defined in the Act as
"belief in a relation to a supreme Being involving duties superior to those arising from any
human relation" but not including "essentially political, sociological, or philosophical views or a
merely personal code." In his exemption application petitioner stated that he could not affirm or
deny belief in a "Supreme Being" and struck the words "my religious training and" from the
form. He affirmed that he held deep conscientious scruples against participating in wars where
people were killed. The Court of Appeals, while noting that petitioner's "beliefs are held with the
strength of more traditional religious convictions," concluded that those beliefs were not
sufficiently "religious" to meet the terms of 6 (j), and affirmed the conviction. Petitioner
contends that the Act violates the First Amendment prohibition of establishment of religion and
that his conviction should be set aside on the basis of United States v. Seeger, 380 U.S. 163 ,
which held that the test of religious belief under 6 (j) is whether it is a sincere and meaningful
belief occupying in the life of its possessor a place parallel to that filled by the God of those
admittedly qualified for the exemption. Held: The judgment is reversed. Pp. 335-367.
404 F.2d 1078, reversed.
MR. JUSTICE BLACK, joined by MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, and MR. JUSTICE MARSHALL, concluded that:
This case is controlled by United States v. Seeger, supra, to which it is factually similar.
Under Seeger, 6 (j) is not limited to those whose opposition to war is prompted by
orthodox or parochial religious beliefs. A registrant's conscientious objection to all war is
"religious" within the meaning of 6 (j) if this [398 U.S. 333, 334] opposition stems from
the registrant's moral, ethical, or religious beliefs about what is right and wrong and these
beliefs are held with the strength of traditional religious convictions. In view of the broad
scope of the word "religious," a registrant's characterization of his beliefs as
"nonreligious" is not a reliable guide to those administering the exemption. Pp. 335-344.
MR. JUSTICE HARLAN concluded that:
1. The language of 6 (j) cannot be construed (as it was in United States v. Seeger, supra,
and as it is in the prevailing opinion) to exempt from military service all individuals who
in good faith oppose all war, it being clear from both the legislative history and textual
analysis of that provision that Congress used the words "by reason of religious training
and belief" to limit religion to its theistic sense and to confine it to formal, organized
worship or shared beliefs by a recognizable and cohesive group. Pp. 348-354.

Page 363
2. The question of the constitutionality of 6 (j) cannot be avoided by a construction of that
provision that is contrary to its intended meaning. Pp. 354-356.
3. Section 6 (j) contravenes the Establishment Clause of the First Amendment by
exempting those whose conscientious objection claims are founded on a theistic belief
while not exempting those whose claims are based on a secular belief. To comport with
that clause an exemption must be "neutral" and include those whose belief emanates from
a purely moral, ethical, or philosophical source. Pp. 356-361.
Again
http://members.macconnect.com/users/k/knelson/co/co.html
"By Reason of Religious Training and Belief..."

A History of Conscientious Objection and Religion during the Vietnam War
By Karl D. Nelson
The Development of Conscientious Objection Through World War I
Since the Protestant Reformation, most conscientious objectors have come from the pacifist
strain of Christianity, which was embodied in the "historic peace churches." These churches,
emulating the early Christian church's pacifism, brought conscientious objection to America in
the colonial period. American military and political authorities have frequently granted
exemptions to these objectors, although before the Civil War such policy was made at the local
level. Through World War I, only members of the historic peace churches qualified for
conscientious objector status.
Early Pacifism
From its inception, the notion of conscientious objection has been tied to religion. The early
Christian church, following Jesus' teachings against killing, appears to have been mostly
pacifist.1
The church was even censured for its position. A Roman chastised the Christians in 173 AD:"If
all men were to do as you, there would be nothing to prevent the emperor from being left in utter
solitude and desertion and the forces of the empire would fall into the hands of the most lawless
barbarians."2
The pacifist stance was not entirely unanimous in the church, for tombstones of Christian
soldiers dating to the late second century have been uncovered.3
Page 364
As time went by, the number of Christians in military service increased, especially after the
Roman emperor Constantine embraced Christianity in 313 AD.
The church, however, still maintained its pacifist character, urging its members not to join the
army and telling military converts not to kill.4
Church leaders excluded those who had killed in battle from the sacrament of Holy Communion
for three years.5 conscription, faced a difficult choice. Some, undoubtedly, entered the military.
Others, like St. Maximilian, refused, saying, "I will not be a soldier of this world, for I am a
soldier of Christ."He was beheaded.6
The division in the early Christian church on military matters slowly solidified into three basic
positions. One wing remained true to the early church's pacifist convictions. Another group
embraced the "just war" tradition. The third tradition, best viewed in the medieval church-
sanctioned Crusades, embraced war.
As a result of the Protestant Reformation, the pacifist wing of Christendom evolved into what
became known as the "historic peace churches."The most dominant of these churches were the
Anabaptists, the Brethren, and the Quakers. These sects rejected the institutional Roman church
in favor of the model seen in the early Christian church.
The Anabaptists, a collection of Protestant groups spawned by the Reformation, maintained the
pacifist tradition of first century Christians. Mennonite, Amish, and Hutterite sects rejected those
beliefs and practices of Catholicism and Protestantism that they believed were not biblically
grounded. Specifically, they rejected infant baptism in favor of adult baptism.
These Anabaptists withdrew from affairs of the state, preferring to live in closed communities
apart from the secular world. They were considered quite unorthodox, and Anabaptist groups
have often been persecuted by Catholics and Protestants alike.7
Another group that is included with the historic peace churches is the Church of the Brethren.
The Brethren share many of the same principles with the Anabaptists. This sect originated much
later, in the early-eighteenth century.8
The Society of Friends, commonly called the Quakers, was founded by George Fox in mid-
seventeenth century England. The Quakers emerged from left-wing Puritanism. They minimized
liturgy and emphasized the role of Christ and the grace of God.9 withdraw from society, the
Quakers were politically active.10
Where the Mennonites tended to Mennonites, Brethren and Quakers, although originating in
Europe, represented the majority of pacifists in the United States well into the twentieth century.
The historic peace churches were traditionally small, unorthodox groups, articulating a consistent
position against war. The pacifist position was never in the majority.
Mainstream religious groups rejected the pacifism of the early church and the peace church
fringe. Mainstream churches instead took two different positions, one accepting war and the
other accepting only "just war."
The "just war" idea can be traced back to the first century B.C. Roman pagan Cicero.

Page 365
Cicero laid out several rules that one could apply in a situation to decide if a given conflict was
just or unjust. His arguments were taken up by Christian philosophers, namely Tertullian,
Origen, Aquinas, Augustine, and later Vitoria, Bellarmine and Suarez. As the theory took shape
in the sixteenth century, it had four elements:the war must be declared by those in authority; the
cause must be just; the warring states should seek to further good or destroy evil; and, the war
must "be fought by proper means."Other clauses were often added, such as the protection of
innocents, and that war is to be used a last resort.11
The more militant group of mainstream Christians accepted, and even encouraged, the use of
force for religious reasons. John Ferguson cites an ancient German poem that exalts Simon Peter
for using his sword to defend Jesus on the night he was betrayed.12
This tradition is exemplified in the Crusades. The Crusades, which dominated European and
Mid-East political and religious life from the eleventh to the thirteenth centuries, was a series of
wars with the purpose of re-capturing Palestine (a "holy land" for Christians, Jews, and
Moslems) from the Moslems. Not only were these wars blessed by the Catholic Church
hierarchy, but a number of military monastic orders sprang up with the expressed purpose of
fighting for Christ.
There is another element in the religious debate on war and peace that runs throughout all three
positions: nationalism. At times, nationalistic issues do more to dictate an individual's response
to a war than religious belief. Ferguson writes, "[t]he historic association of the Christian faith
with nations of commercial enterprise, imperialistic expansion and technological advancement
has meant that Christian peoples, although their faith is one of the most pacifistic in its origins,
have a record of military activity second to none."13
The flag has historically occupied an important position in the church, and churchmen have
frequently endorsed and approved of warfare.
Conscientious Objection In Early America
Many early immigrants to America sought religious freedom. Among these were some members
of the historic peace churches.14
A few Quakers immigrated from England in 1656, with more to follow.15
Anabaptist immigration came in a number of waves. Dutch and German Mennonites arrived as
early as 1683. Settling in Pennsylvania, Mennonite immigration continued
until 1760. Included in this group were the Amish, a more conservative group within the
Mennonite tradition. Later, large numbers of Russian Mennonites immigrated to America in the
1870s. These Mennonites, many of whom had originally moved to Russia to avoid military
service in Germany, now fled an increasingly unfriendly Czar.16
All of these groups, hoping to avoid the persecution of their beliefs in Europe, were drawn to
America by promises of religious freedom.
1See the "Sermon on the Mount," Matthew, chapters 5-7. Examples of Jesus' teachings that promote the pacifist idea are:"But I say
unto you, Love your enemies, bless them that curse you, do good to them that hate you, and pray
for them which despitefully use you, and persecute you"(Matthew 5:44) and "Blessed are the
peacemakers: for they shall be called the children of God."(Matthew 5:9).
2James H. Forest, Catholics and Conscientious Objection(New York: Catholic Peace Fellowship, pamphlet, 1981).
Page 366
3Ibid.
4John Ferguson, War and Peace in the World's Religions(New York: Oxford University Press, 1978), 103-4.
5Forest, Catholics and Conscientious Objection.
6Ibid.
7For more information on Anabaptists, see Kenneth Scott Latourette, A History of Christianity(New York:Harper and Brothers, 1953),
chapter XXXIV.
8Ibid., 786.
9Sydney E. Ahlstrom, A Religious History of the American People(New Haven:Yale University Press, 1972), 177.
10Ferguson, War and Peace,113.
11Ibid., 103-104, 110-111.
12Ibid.,106.
13Ibid.,122.
14Moskos and Chambers, New Conscientious Objection,25.
15Lillian Schlissel, comp., Conscience in America: a Documentary History of Conscientious Objection in America, 1757- 1967(New
York : Dutton, 1968), 17.
16Ahlstrom, Religious History, 232-234, 753.
The following is from the Victorian Hansard in regard of parliamentarian debates relating to
religious objections, etc.
http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&db=hansard91&dodra
ft=0&house=ASSEMBLY&speech=4604&activity=Second+Reading&title=JURIES+BILL&dat
e1=15&date2=March&date3=2000&query=true%0a%09and+%28+data+contains+'RELIGIOUS
'%0a%09and+data+contains+'OBJECTION'+%29%0a
Title JURIES BILL
House ASSEMBLY
Members NARDELLA
Date 15 March 2000
Page 364
Mr NARDELLA (Melton) --
The other exemption is religious dispensation. Again it is important. Some of my

constituents who were brethren based in Melton came to see me about the bill. They
wanted to maintain the dispensation for people like themselves who have a firm religious
belief about not serving on juries. Again I believe that is appropriate and I am happy to see
that provision remain.
ft=0&house=ASSEMBLY&speech=23768&activity=Second+Reading&title=EDUCATION+%
28AMENDMENT%29+BILL&date1=21&date2=October&date3=1998&query=true%0a%09an
d+%28+data+contains+'RELIGIOUS'%0a%09and+data+contains+'OBJECTION'+%29%0a
Title EDUCATION (AMENDMENT) BILL

House ASSEMBLY
Members MILDENHALL
Date 21 October 1998
Page 608
Mr MILDENHALL (Footscray) --
Page 367
The Age editorial of 24 February probably got the balance right. The latter part of it
says:
A pluralist society such as ours demands more than freedom of religion and freedom
from state-imposed religion. It requires respect for diversity, opportunity to exercise
choice and tolerance of different faiths.
It would be wrong, for example, for schoolchildren to be compelled to take part in

religious observances against their parents' wishes. The law makes it clear that such
participation must be voluntary. On the other hand, Australia's Christian heritage
cannot be erased or unduly confined. And such festivals as Christmas and Easter
have in reality become events of popular culture as much as religious celebrations.
The notion that state schoolchildren whose parents and teachers so wish should not
be allowed to take part in an inoffensive Easter or Christmas pageant in a church
hall because a few parents object is an affront to commonsense and reasonable
tolerance. If the law is indeed so restrictive as to make such a free choice and
popular event illegal, then the law is an ass. The government's instincts are right: the
regulations -- or, if necessary, the law -- should be amended to give individual
schools and communities more flexibility in such cases.
That editorial probably has the balance and the arguments right.
ft=0&house=ASSEMBLY&speech=5105&activity=Second+Reading&title=HISTORIC+BUIL
DINGS+%28FURTHER+AMENDMENT%29+BILL&date1=28&date2=May&date3=1991&qu
ery=true%0a%09and+%28+data+contains+'RELIGIOUS'%0a%09and+data+contains+'OBJECT
ION'+%29%0a
Title HISTORIC BUILDINGS (FURTHER AMENDMENT) BILL

House ASSEMBLY
Members SPEAKER
Date 28 May 1991
Page 2583
It is inappropriate for governments to interfere in religious observance. It is not for a

former Methodist minister, with great respect to the Minister, to be telling His Grace
the Catholic Archbishop of Melbourne whether he can have his high altar in the
middle of the transept, in the northern end of the transept or anywhere else in the
transept.
Page 2587
Let religious belief and religious forms and observance be appropriate to the
particular denomination. It is not for us to be telling the great Synagogue of
Melbourne that it cannot do this or it cannot do that. It is not for us to tell a Muslim
community how it will set up its mosque.
As a Parliament we must learn to respect other people's religious beliefs and the
form of religious service they follow. If that means making changes to buildings
Page 368
which are their buildings and which they have looked after for generations and
brought down the generations for us as part of our heritage, that respect is all
important. That is fundamental in our community and will be fundamental in the
coalition's approach to historic buildings legislation.
ft=0&house=COUNCIL&speech=13022&activity=Second+Reading&title=RACIAL+AND+RE
LIGIOUS+TOLERANCE+BILL&date1=14&date2=June&date3=2001&query=true%0a%09and
+%28+data+contains+'RELIGIOUS'%0a%09and+data+contains+'OBJECTION'+%29%0a
Title RACIAL AND RELIGIOUS TOLERANCE BILL

House Second Reading
Activity COUNCIL
Members NGUYEN
Date 14 June 2001
Page 1484
It is in this context of the diverse Victorian community that I believe the Victorian
people will support the promotion of legislation that seeks to enhance a tolerant
society.
The bill is about promoting a tolerant society. I see this bill as being about creating
rights and not taking away rights. There has been a lot said during the debate about
the freedom of speech. Australia does not currently have a bill of rights, although I
believe we should have one. We do not currently have unqualified rights to freedom
of speech -- for example, we do not have the right to defame people, to harass or to
intervene. There are already laws in place, as the Honourable Carlo Furletti
indicated in his contribution, that deal with such
Page 1490
instances. However, I agree with him that such laws do not cover many situations of
verbal abuse.
Although we are not signatories to a bill of rights, we are signatories to a number of

international treaties, including the International Convention on the Elimination of
All Forms of Racial Discrimination and the International Covenant on Civil and
Political Rights. These documents not only endorse freedom of speech but also
acknowledge that this right is tempered by the rights of others.
Article 29 of the Universal Declaration of Human Rights states:
(1) Everyone has duties to the community in which alone the free and full
development of his personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of securing due
recognition and respect for the rights and freedoms of others and of meeting the just
requirements of morality, public order and the general welfare in a democratic
society.
Page 369
Australia is a founding member of the General Assembly of the United Nations, and
is a signatory to the Universal Declaration of Human Rights. Article 29
conveniently sets out the need for a balance between rights in our society, and I see
this bill as not tempering any of our existing rights.
We do not have an unlimited right to free speech in this country. Given that we live
in a community we should have regard to the rights of others, which is what the bill
seeks to do. It is important to refer specifically to paragraph 3 of the preamble of the
bill, which says, in part:
However, some Victorians are vilified on the ground of their race or their religious
belief or activity. Vilifying conduct is contrary to democratic values because of its
effect on people of diverse ethnic, indigenous and religious backgrounds. It
diminishes the dignity, sense of self-worth and belonging to the community. It also
reduces their ability to contribute to, or fully participate in, all social, political,
economic and cultural aspects of society as equals, thus reducing the benefit that
diversity brings to the community.
And
The state is in danger of taking onto itself the power of deciding religious issues
through state servants. I remind honourable members of section 116 of the federal
constitution. I will read it because people with professional backgrounds have
advised me that this bill may be subject to challenge -- it could be challenged as
being invalid on the basis of section 116 of the Australian constitution. That section
states:
The commonwealth shall not make any law for establishing any religion, or for
imposing any religious observance, or for prohibiting the free exercise of any
religion, and no religious test shall be required as a qualification for any office or
public trust under the commonwealth.
The notes that go with this publication on the constitution state:
The section prohibits the commonwealth from doing four separate things: it may
not:
make a law for establishing a religion;
make a law for imposing a religious observance;
make a law for prohibiting the free exercise of any religion ...
Therefore I have real reservations about the validity and conformity of the bill as it
relates to the constitution, which takes precedence over state legislation. It may
indeed be subject to a finding of invalidity at a subsequent hearing.
ft=0&speech=2644&activity=Questions+without+Notice&title=Organ+donor+program&date1=
3&date2=June&date3=1999&query=true%0a%09and+%28+data+contains+'RELIGIOUS'%0a%
09and+data+contains+'OBJECTION'+%29%0a
Page 370
Title Organ donor program
House COUNCIL
Activity Questions without Notice
Members VARTY; KNOWLES
Date 3 June 1999
Page 1126
It is a fundamental issue for many in the community because organ donations can allow
others to enjoy an increased life expectancy and provide an opportunity for those who do
not have a cultural or religious objection to contribute to the community.
ft=0&house=COUNCIL&speech=18716&activity=Second+Reading&title=TERTIARY+EDUC
ATION+%28AMENDMENT%29+BILL&date1=1&date2=June&date3=1994&query=true%0a
%09and+%28+data+contains+'RELIGIOUS'%0a%09and+data+contains+'OBJECTION'+%29%
0a
Title TERTIARY EDUCATION (AMENDMENT) BILL

House COUNCIL
Members HOGG
Date 1 June 1994
Page 1151
Hon. C. J. HOGG -- It is a problem when ministers are quoted as saying something they
have not said when they have not read the document, and I shall refer to that later. I also
double-checked the opting-out clause or the conscientious objection clause. In his student
days the honourable member for Dandenong in another place was the general secretary of
the student union at Monash University. I asked him what happened to the conscientious
objection clause, and he informed me that every year 20 to 30 applications for exemption
were approved and almost all of those applications were brought on religious grounds.
ft=0&house=COUNCIL&speech=5190&activity=Second+Reading&title=JURIES+BILL&date1
=5&date2=April&date3=2000&query=true%0a%09and+%28+data+contains+'RELIGIOUS'%0a
%09and+data+contains+'grounds'+%29%0a
Title JURIES BILL

House COUNCIL
Members FURLETTI
Date 5 April 2000
Page 564
However, if a person's religious beliefs are incompatible with the concept of jury service,
that person can apply for excusal on those grounds as good reason. There is the catch-all
provision in the bill which refers to any other matters of special urgency or importance
which can be cited as a ground for excusal.

Page 371
Some past correspondences reproduced;
QUOTE 25-10-2001 EMAIL
Subj: close of nominations

Date: 25/10/01 4:10:24 PM AUS Eastern Standard Time
From: shawn.o'brien@aec.gov.au
To: GHSchorelHlavka@aol.com
File: gals4497.doc (23040 bytes) DL Time (46666 bps): < 1 minute
(See attached file: gals4497.doc)

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Subject: close of nominations
To: GHSchorelHlavka@aol.com
Date: Thu, 25 Oct 2001 16:06:19 +1000
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END QUOTE 25-10-2001 EMAIL
File: 2001/1154/gals4497 West Block Offices

Parkes ACT 2600
Contact: Shawn O’Brien
Telephone: 02 6271 4678 PO Box E201

Facsimile: 02 6271 4457 Kingston ACT 2604
E-mail: shawn.o’brien@aec.gov.au
Mr G Schorel-Hlavka
107 Graham Road
ROSANNA EAST VIC 3084
Page 372
GHSchorelHlavka@aol.com
Dear Mr Schorel-Hlavka
Thank you for your enquiry about the period between the issue of the writs for the 2001 Federal
Election and the close of nominations.
As you are aware, the Commonwealth Electoral Act 1918 (the Electoral Act) provides as follows:
 … a writ shall be deemed to be issued at the hour of 6 o’clock in the afternoon of the day on
which the writ was issued (s.152(2));
 … the date fixed for the nomination of the candidates shall not be less than 10 days … after
the date of the writ (s.156(1));
 the hour of nomination shall be 12 o’clock noon on the day of nomination (s.175(1)).
The Australian Electoral Commission (the AEC) understands that the writs issued by the
Governor-General and State Governors for the 2001 Federal Elections meet these requirements.
The AEC does not believe the Electoral Act requires a 10 day period from the deemed time of
the issue of the writs to the hour of nomination, as you have suggested. The writs for the 2001
Federal Election reflect the same timetable as writs for the many previous elections that have not
been challenged on this basis.
Should you wish to challenge the conduct of an election, you could seek your own legal advice
with regard to;
 applying for an injunction in the Federal Court of Australia to prevent the election being
held; or
 petitioning the High Court of Australia, sitting as the Court of Disputed Returns, to set the
election aside. Such petitions need to be lodged in the period of 40 days following the return
of the writ.
Yours sincerely
authorised for electronic transmission by
Kathy Mitchell
Director
Government and Legal Section
25 October 2001
Again;
applying for an injunction in the Federal Court of Australia to prevent the election being held; or

WITHOUT PREJUDICE
Australian Electoral Commission 27-10-2001

C/o Shawn O’Brien.
Katy Mitchell, Director, Government and Legal Section
Fax; 02 6271 4457 Ref: 2001/1154/gals4497

Ph; 02 6271 4678
Page 373
* URGENT * URGENT * URGENT * URGENT

*
In regard of your letter dated 25 October 2001 I wish to indicate that your reference:
“The writs for the 2001 Federal election reflect the same timetable as
writs for the many previous elections that have not been challenged on
this basis.”
I refer to the following:
“The oath of a justice of this court is ' to do right to all manner of people according to law' Our sworn duty
is to the law itself and to the organic nature of the constitution first of all. If, then, we find the law to be
plainly in conflict with what we or any of our predecessors erroneously thought it to be, we have, as I
conceive no right to choose between giving effect to the law, and maintaining an incorrect interpretation, It
is not, in my opinion, better that the court should be persistently wrong than that it should be ultimately
right..
Whatever else may be said with respect to previous decisions - and it is necessary here to consider the
principals upon which a court should act in particular cases - so much at least emerges as is undoubtedly
beyond challenge, that where a former decision is clearly wrong, and there are no circumstances
countervailing the primary duty of giving effect to the law as the court finds it, the real opinion of the court
should be expressed.”
"In my opinion, where the prior decision is manifestly wrong, then, irrespective of the consequences, it is
the paramount and sworn duty of this court to declare the law truly...."
As such I am not the least concerned as to if in the past elections were held incorrectly, what I
am concerned about is if this election is being held correctly.
The Act in s156 (1) clearly requires “the date fixed for the nomination of the candidates shall not
be less than 10 days .. after the dater of the writs” meaning that the nomination date must be on
the 11th day AFTER the date of the writs.
It is my view that it isn’t my responsibility to take matters to Court on the first place but that it is
the responsibility of the Australian Electoral Commission to ensure that matters are conducted
in a proper legal manner.
As per my e-mail:
156 Date of nomination
(1) Subject to subsection (2), the date fixed for the nomination of the
candidates shall not be less than 10 days nor more than 27 days after the date of
the writ.
157 Date of polling
The date fixed for the polling shall not be less than 23 days nor more than 31
days after the date of nomination.
158 Polling to be on a Saturday
The day fixed for the polling shall be a Saturday.

Page 374
Whereas the writs shall be deemed to be issued at the hour of 6 o’clock in the afternoon of the
day on which the writ was issued (S152(2)) Then clearly the closing of the nominations “shall
not be less than 10 days nor more than 27 days after the date of the writ” (s.156(1))
Considering that the Writs were issued on Monday 8 October 2001 then the counting of the days
must commence “after the date of the writ” is that 9 October 2001 is the first day of the
minimum 10 days. It can’t be held that the nominations close on the 10th day, as then there are
only 9 days from the Writs being issued.
Again, I maintain that closing of nominations were to occur on Friday the 19 th of October 2001
and the election to be held no earlier but Saturday the 17th day of November 2001.
The fixing of the polling “shall not be less than 23 days nor more than 31 days after the date of
nomination.”
(s157) Clearly, this means that the first date after the closing of nominations, even if argued that
the 18th day of October 2001 was the nomination date (I dispute) then the polling date being ”
shall not be less than 23 days….. after the date of nomination.” Must be counted that the first day is
the day AFTER closing of the polling dates. In this case, it would be on an 18th October 2001
date being Sunday 11 November 2001 and on a 19 October 2001 nomination date it would be
Monday 12 November 2001 before an election could be held. However as
158 Polling to be on a Saturday
The day fixed for the polling shall be a Saturday.
Then clearly in any event Saturday 17 November 2001 is the appropriate polling date.
As to “the hour of nomination shall be 12 o’clock noon on the day of nomination” (s175(1)) that
in itself doesn’t mean that the closure of the nominations had to occur on Thursday 18 October
2001 but merely indicates that AFTER the “minimum 10 days” had expired then at any
subsequent date but within the maximum of 27 days the closure of the nominations can be held.
ISSUE: COURT PROCEDURE AND LEGISLATIVE

PROVISIONS MANDATORY OR DIRECTORY.
In S.S. Constructions Pty. Ltd. V. Ventura Motors Pty. Ltd. [1964 V.R. 229 Gillard J took
considerable notation of Maxwell on the Interpretation of Statues (12th ed.) at pp. 314-315 as to
the
Compliance to legal requirements.
It must be clear that the Act uses the wording “shall” and not “may” and as such it is directory
that “not less then 10 days …after the date of the writ” and as such 9 and a bit days is in breach
of the legal provisions.
I invite you to point out to me where in the legislation it is shown that s175(1) overrides the legal
requirements of a minimum of 10 days as referred to in s156(1)? I do not find it to be imprecise,
ambiguous, duplex, incomprehensible or otherwise bad in law or that it appears to indicate that
“minimum of 10 days” is to be less then 10 days by some other kind of application. I calculate
“minimum 10 days” to be 10 days of 24 hours and not less then 10 multiplied by 24 hours being
240 hours.
If a person is sentence for 1 day in imprisonment then this generally means overnight
imprisonment and not that a person send to prison at 5 PM by a Court then by midnight can
claim his 1 day of imprisonment is over. Unless the contrary of the act is shown one must accept

Page 375
that 1 day means 24 hours and that where the Act refers to “minimum 10 days” then the
legislators had every intention to ensure it was NOT LESS THEN 10 DAYS!
Because the legislators included the word “minimum” it is clear that the legislators had concern
that not to use the wording “minimum” would or might be likely result to an abuse of the 10
days being made part of a day.
It is idiotic that you expect me to be liable for tens of thousands of dollars of Court cost to
commence legal proceedings merely because the Australian Electoral commission is refusing to
do his job.
It is my position that the Australian electoral commission is obligated to avoid millions of dollars
on taxpayer’s monies to be wasted on an election that is incorrectly dated.
Obviously the question is also that if the nomination date was closed on the wrong date then
those persons who were seeking to lodge a nomination form but did so within the 24 hours after
the alleged closing of the nomination date of 18 October 2001 may also be entitled to have their
nomination still accepted and then the Australian electoral commission must amend the draw of
nominated candidates, if and when applicable.
It also means that the Australian Electoral Commission held the draws of listing on the ballot
papers incorrectly as instead of being held on Friday 12 noon (or there about) 19 October 2000 it
ought to have been held on the earliest on Saturday 12 noon.
It is my view that the Writ being deemed to be issued at 6 PM of the day and the 10 days must be
counted AFTER the day of the writ then the closing of the nominations could be held no earlier
but on the 11th day AFTER the writs were issued being on the Friday the 19th day of October
2001.
As the Polling day must be held no less then 23 days after the closing of nominations then the
polling day, considering it to be held on a Saturday, must be held no earlier but on Saturday the
17th day of November 2001.
It is my position that the Commonwealth Electoral Act 1918 Section 7 Functions and Powers of
Commission does NOT disclose any powers for the Australian Electoral Commission to Act
contrary to the legal provisions of the Act and as such where I as a candidate have given
appropriate notice PRIOR TO the election being held that it appears that the Australian electoral
commission has no legal powers to conduct an election on Saturday 10 November 2001 as it
would breach the legal provisions of the Commonwealth Electoral Act 1918 then I request you
from refraining to conduct any polling on Saturday the 10 November 2001 and to ensure that the
issue of the Writs are addressed as to have the writs amended or otherwise superseded as to
ensure it complies with the legal requirements of the said Commonwealth Electoral Act 1918.
Again, I invite the Australian electoral Commission to provide me with an appropriate set out as
how the Commission within the framework of the legal provisions holds the relevant dates to be
applicable.
As such, how does the Commission calculate its dates and does it consider that “minimum 10
days” in effect is LESS THEN 10 DAYS?
How also does it consider the nomination date and polling date are calculated?

Page 376
I do wish to point out that it would be grossly unfair to the Australian public as to proceed with a
polling day in breach of the legal provisions and then have them to do another vote on a
subsequent election on an appropriate polling day.
The cost of another election also would be horrendous and surely, this could be avoided if
perhaps appropriate steps is undertaken as to resolve the issues.
Perhaps, some kind of agreement can be reached to enable amending the Writs issued between
my self and the leaders of the parties that would overcome the problem.
As I have given notice as a candidate and a elector disputing the appropriateness of the
Australian electoral commission to conduct a polling day on 10 November 2001 as set out above
then I view the obligation rest with the Australian electoral commission to ensure that it Acts
within the legal framework of the Commonwealth Electoral Act 1918 Act to conduct the polling
day as it intends to do.
I view that the obligation of the Australian electoral commission must not be ignored as to Act
within the legal framework and to fulfil it’s duties according to law.
Whatever legal avenues might be open to me isn’t any excuse for the Australian electoral
commission to ignore its legal obligation to act within the precise legislated provision of the Act.
Again, I am not concerned if the Australian Electoral Commission in past elections may have
disregarded its legal duties nor consider this to be any excuse to ignore on this occasion its legal
obligations, as simply ignorance is no excuse.
Because of the URGENCY of this matter I request you to forthwith attend to this matter and
respond in the most urgent way, such as forwarding a copy of any mail response also by
facsimile to my facsimile number shown in my letterhead.
I intend to release a copy of this letter to the media and to the leaders of the parties, for so far I
have their e-mail addressed or otherwise their facsimile numbers) as to ensure they are all aware
of the dispute about the election date.
Awaiting your response and cooperation, G. H. SCHOREL

(Mr. G. H. SCHOREL-HLAVKA)

WITHOUT PREJUDICE

Fax; 02 6271 4457 Ref: 2001/1154/gals4497

Ph; 02 6271 4678
* URGENT * URGENT *
Sir/Madam,

Page 377
I am currently in preparation of an Appeal to the High Court of Australia in regard of
the orders of Marshall J of the Federal Court of Australia. I view it essential that at the very least
we might get our fact correct in regard of past elections held in 1992 and there after.
I request the Australian Electoral Commission to stop any further illegal conduct in breach of the
legal provisions of the Commonwealth Electoral Act 1918 and I view that the Australian
electoral commission ought invoke Section 357 of the Commonwealth Electoral Act 1918 as to
dispute any election held in breach of the legal provisions of the Commonwealth Electoral Act
1918 in particular in regard of Sections 155, 156 and 157 or other relevant Act of any State.
I REQUEST YOU to provide me URGENTLY with the details of all and any elections held in
1992 ands there after as to each of such election:
(a) the date the seat was declared vacant (by resignation or otherwise)
(b) the date the writ or writs were issued
(c) type of election (e.g. by-election, general election)
(d) was it one or more Senate seats and/or House of Representatives seat(s)
(e) the date of the closure of the Rolls
(f) the date of closure of nominations
(g) the date of declaration of candidate(s)
(h) the date of poll
Below, I have provided some details as I was able to locate so far on the Internet.
I REQUEST YOU to clarify if the Australian Electoral Commission has a different system
applicable in regard of Senate elections then that which is shown below by State legislative
provisions and if so what particular legislative provisions the Australian Electoral Commission
relies upon. For example, the State of Victoria provides for Nomination closure “shall not be less
than eleven days nor more than 28 days after the date of the writ. In view that the Writs were
issued, at least to my information and the (contested) affidavit filed by your deponent) on the 8th
day of October 2001 and the nominations as such ought to have been close after 11 clear days
being on the earliest on (8 + 11+ day of closure of Nominations) Saturday the 20th day of
October 2001 with the earliest poll being held no earlier then Saturday the 17th day of November
2001.
The Australian Electoral Commission might have more updated details and legislation then what
I can access via the internet from the governments website I request you to clarify any
misconception I might have, in your opinion, that would avoid litigation in the courts upon
mistaken grounds.
On the other hand, I request you to confirm where the information indicated below are correct so
at least we might get some consensus about certain details avoiding perhaps a drawn out
litigation battle about those facts that we can agree upon.
I was unable to obtain from the website of the Australian Electoral Commission any details as to
its past publications of CANDIDATE HANDBOOK of the 1992, 1996 and 1998 general
elections held and I request you to provide me copies of the time table then used to compound
the days of election process from the Date of the writs until the poll was held.
My perception is that a writ ought not be issued on the day of dissolution but in fact ought to be
done on the earliest the following day. I invite your opinion upon that to be expressed.

Page 378
As you may note from the information shown below, there is a fluctuation of days from 32 to and
inclusive 42 clear days between the date of the writ(s) issued and the holding of the relevant poll.
I invite you to clarify this, where possible if this has any basis upon the advise given at the time
by the Australian Electoral Commission as to the time schedule applicable to hold an election?
I also noted that the Ballot Act appears to limit a poll between the hours of 9 AM till 5 PM, and I
invite you to comment upon that to clarify if this is followed and if not why not?
Personally, I consider it a disgrace that the Australian Electoral Commission appeared unaware
of legislative provisions of State Acts (as least going by the submission of the Counsel for the 3rd
defendant) where I understand Section 7 of the Commonwealth Electoral Act 1918 was
specifically set up as to ensure that one body could deal with matters.
I am deeply concerned that the 3rd Respondent, as I see it, abused the legal processes and
amounted a frivolous and vexatious objection to Legal Jurisdiction as a manner to force ahead
a poll. I do not believe that this kind of conduct is in the benefit of the Australian public and I
urge you to keep in mind that the Courts must not be undermined in its legal power to adjudicate
upon legal issues by a party withholding relevant material from the Court, misleading the Court
as to the proper application of the case law referred to etc.
I urge you to consider the following legal principle and urge you to ensure that in future litigation
legal representatives for the Australian Electoral Commission do follow this legal principle,
rather then, as I see it, grossly abuse the legal processes merely to ensure the 3 rd Respondent can
proceed with, what I consider, an illegal election.
The Australian Electoral Commission, in my view, was created to pursue compliance of law and
not to become itself a lawbreakers undermining precisely the intentions of the Parliament for
which the Australian Electoral Commission was created.
Foster (1950) S.R. (N.S.W.) 149, at p151 (Lord Denning, speaking on the role of an
advocate)
"As an advocate he is a minister of Justice equally with a judge, A Barrister cannot pick or choose his
clients...He must accept the brief and do all he honourably can on behalf of his client. I say 'All he honourably
can' because his duty is not only to his client. He has a duty to the court which is paramount. It is a mistake to
suppose that he is a mouthpiece of his client to say what he wants: or his tool to do what he directs. He is
none of those things. He owes his allegiance to a higher cause. It is the cause of truth and Justice. He must not
consciously misstate the facts. He must not knowingly conceal the truth. He must not unjustly make a charge
of fraud, that is, without evidence to support it. He must produce all relevant authorities, even those that are
against him. He must see that his client discloses, if ordered, all relevant documents, even those that are fatal
to his case. He must disregard the specific instructions of his client, if they conflict with his duty to the court."
Counsel for the 3rd Respondent (Australian Electoral Commission) on the 7th day of November
2001 in his submission placed the following before His Honour Marshall J;
The researches of counsel have been unable to find provisions using simular
language (“not less that” or “at least” a number of days) where the language is as
clear and specific as found in ss156(1) and 157.
Below I have quoted some legal provisions of relevant laws that were applicable to elections and
I express my concern that, as I see it, Counsel grossly misled the Court. I urge you to check the
submissions and the relevant case law referred to and you might conclude that indeed Counsel
grossly misled the Court also as to the meaning of Fullagar J.
Page 379
Counsel for the 3rd respondent in his OUTLINE OF SUBMISSIONS FOR THE AUSTRALIAN
ELECTORAL COMMISSION stated in regard of Associated Dominions Assurance Society
Pty Ltd v Balford (1950) 81 CLR 161:
Fullagar J said (at 183) that, where the purpose of the prescription of a period (using a form such as “not less
than”) is to define a period within which an act must be done, then the act in question must be done
before the expiration of the last of the prescribed number of days; and the last day when the act may be
done is the last of the prescribed number of days.”
Counsel for the 3rd Defendant clearly was mistaken as to the interpretation of the said Judgement as this
was a case where the Court was dealing with a time limit “NOT BE LESS THAN 14 DAYS”
and His Honour made it very clear that the NOT LESS THEN 14 DAYS means that this is from
midnight to midnight as follows:
5. In the present case the document served allowed "the period of fourteen
days next ensuing after the second day of May" 1948. That period would expire
at midnight on 16th May 1948. The document purports to be "dated" 30th April,
but it was served on 3rd May. A period of fourteen days from 30th April would
expire at midnight on 14th May, but a period of fourteen days from 3rd May
would not expire until midnight on 17th May. If, therefore, the words "date of
the notice" in the Act mean the date which the document bears on its face, the
minimum period which the Act requires to be allowed ran from 30th April and
expired at midnight on 14th May, and the notice complies with the Act, because
it allows up to midnight on 16th May.
As such, Fullagar J as such clarified the meaning of NOT LESS THEN 14 DAYS as to how it applied.
A concern also is that Counsel for the 3rd Defendant presented the argument: (the category where,
according to Fullagar J, significance is attached to such expression as “at least” or “not less
than”.) as this rather, in my view, is a misleading set out of what actually was expressed by
Fullagar J; The true version being:
There is some authority

for saying that the use, in a statute prescribing a time limit, of such
expressions as "at least" and "not less than" indicate an intention that the
specified number of "clear days" must elapse between two acts or events (see
R. v. Justices of Shropshire (1838) 8 Ad & E 173 (112 ER 803); Young v. Higgon
(1840) 6 M & W 49 (151 ER 317); Chambers v. Smith (1843) 12 M & W 2 (152 ER
1085); In re Railway Sleepers Supply Co. (1885) 29 Ch D 204 and Ex parte
McCance; Re Hobbs (1926) 27 SR (NSW) 35; 44 WN 43). But it is clear, I think,
that significance is attached to such expressions as "at least" or "not less
than" only in cases where the immediate purpose of the prescription of a time
is to define a period on the expiration of which an act may be done, and not
in cases where the immediate purpose is to define a period within which an act
must be done. In the former class of case the prescribed number of days must
elapse between two acts or events. In the latter class of case the act must
(unless a contrary intention appears) be done before the expiration of the
last of the prescribed number of days (see, e.g. Radcliffe v. Bartholomew
(1892) 1 QB 161 and Armstrong v. Great Southern Gold Mining Co. (1911) 12 CLR
382). In the latter case Griffith C.J. said: - "When you talk of doing a thing
within a period of a certain number of days, it is quite clear that the end of
the last day is the furthest limit. It is impossible to say that a thing
required to be done within seven days is done within seven days if done on the
eighth day, and it is impossible to make any alteration of the limit by adding
the word 'clear'" (1911) 12 CLR, at p 388. In the case of s. 55 of the Life
Insurance Act it is plain that the immediate purpose of the prescription of a
period is to fix a time within which cause must be shown. It follows that the
last day on which cause may be shown is the fourteenth day after the date of
Page 380
the notice. (at p183)
Fullagar J as such very much makes it clear that unless it is stated that the act must be done “within” the
specified number of days the days must be held to be clear days.
In SYKES v. CLEARY and OTHERS (1992) 176 CLR 77 F.C. 92/046 it appears to be shown that the
Australian Electoral Commission then already was misleading the public, the Government and
the Commonwealth about the appropriate legislated time periods applicable in regard of Section
155, 156 and 157 and a combination of Section 156 and 157 of the Commonwealth Electoral
Act 1918.
The writ for the by-election was issued by the Speaker of the House of
Representatives ((72) See Constitution, s.33) on 9 March 1992. Its command
was addressed to Brian Field Cox, the Electoral Commissioner ((73) See the
Electoral Act, ss.18, 21), and specified the following dates:
For the CLOSE OF THE ROLLS: 16 March 1992
For NOMINATION: 20 March 1992
For TAKING THE POLL: 11 April 1992
For the RETURN OF THE WRIT: on or before 17 June 1992
Considering the legal provisions of Section 157, a minimum 23 days it is found that only 21
days had lapsed after the date of close of nominations, before the Taking of the poll. As
such, the Poll ought to have been 1 week later on Saturday the 18th day of April 1992.
It should have been as follows:
Writ issue 9th March 1992 Monday

Close of rolls 17th March 1992 Tuesday
Nominations 20th March 1992 Friday
Taking the Poll 18th April 1992 Saturday
That in regard of the purported general election and the general election period for 2001 the following
occurred;
Writs issued; 8th October 2001 Monday

Close of rolls 15th October 2001 Monday
Close nominations 18th October 2001 Thursday
Taking the poll 10th November 2001 Saturday
Considering the legal provisions of Section 157, a minimum 23 days it is found that only 22
days had lapsed after the date of close of nominations, before the Taking of the poll. As
such, the Poll ought to have been 1 week later on Saturday the 10th day of November 2001,
also only 9 days had lapsed before closure of nominations.
It should have been as follows:
Writs issued; 8th October 2001 Monday

Close of rolls 16th October 2001 Tuesday
Close nominations 19th October 2001 Friday
Taking the poll 17th November 2001 Saturday

Page 381
The above demonstrates, that contrary to the 3rd Defendants argument about how it calculated days, the
evidence is that with the 1992 election process it was also inconsistent and had a mere 21 clear
days after the close of nominations and yet had 10 clear days after the issue of the Writs.
The 2001 election period had 22 clear days after the close of nominations but only 9 days after closure
of nominations (Not 11 day as some States require) and as such the inconsistency shows that it
isn’t that the Australian Electoral Commissioner had a particular persistent error of assuming
some particular counting but rather that the Australian Electoral Commission proved to change
the number of days as it went along, proving not to take any consideration as to what was
actually legally required.
The following is known:
Writ roll nomination clear

Name; vacant issue close close party poll days
General election 8-10-01 15-10-01 18-10-01 10-11-01 32
Aston ? 1-7-01 LP 14-7-01 42
Ryan 5-2-01 9-2-01 LP 17-3-01 35
Isaacs ? 30-6-00 ALP 12-8-00 42
Holt 30-9-99 1-10-99 ALP 6-11-99 35
Fraser 6-12-96 30-12-96 ALP 1-2-97 32
Lindsay 11-9-96 16-9-96 (DECLARED VOID) ALP 19-10-96 32
Blaxland 23-4-96 13-5-96 ALP 15-6-96 32
Wentworth 28-2-95 3-3-95 LP 8-4-95 35
Canberra 30-1-95 17-2-95 ALP 25-3-95 35
Kooyong 17-9-94 14-10-94 LP 19-11-94 35
Warringah 18-2-94 18-2-94 LP 26-3-94 35
Mackellar 14-1-94 18-2-94 LP 26-3-94 35
Bonython 11-2-94 11-2-94 ALP 19-3-94 35
Fremantle 4-2-94 4-2-94 ALP 12-3-94 35
Werriwa 22-12-93 24-12-93 ALP 29-1-94 35
Wills (VOID) 9-2-92 16-3-92 20-3-92 ALP 11-4-92 32
Of the 19 above mentioned elections held 7 were with 32 clear days (meaning not according to Section
156 and 157 of the Commonwealth electoral Act 1918) 2 were of 42 clear days and 10 were of
35 clear days. The minimum clear days is 10 + close nomination day + 23 = 34 clear days.
Fraser was vacant for 24 days before writs were issued and then the poll was held too early and as such
it demonstrates that it had nothing to do with some alleged urgency but simply the Australian
Electoral Commission fails to appropriately deal with a time table according to the legal
provisions.
The above proves beyond doubt that Counsel for the 3rd Respondent was really misleading Marshall J as
to how the Australian Electoral Commission applied its computation of days as the fluctuation
indicates there is no common system applied. Even the closure of the nominations fluctuate from
the 10th day to the 11th day.
Section 9, Chapter I of the Australian Constitution specifically provides;

Page 382
The parliament of a State may make laws for the determining the
times and places of elections of Senators for the State.
Subsequently the States have the current legislation in force to in effect have the dates etc determined by
the laws of the Parliament of the Commonwealth of Australia;
NSW No. 9, 1903 Senators’ Elections Act 1903

Victoria No. 6365 Senators elections Act 1958
Queensland 9 Eliz II No. 20 The Senate Elections Act of 1960
South Australia No. 834 The Election of Senators Act 1903
Western Australia No.11, 1903 Election of Senators Act 1903
Tasmania 26 Geo. V. No. 3 Senate Elections Act 1935

3. For the purpose of elections of Senators for New South Wales of the
Parliament of the Commonwealth, the Governor may, from time to time, by
order published in the Gazette, fix the dates for:
the issue of the writ;
the close of the electoral rolls;
the nomination of the candidates;
the polling; and
the return of the writ.
Date of close of electoral rolls

4. The date fixed for the close of the electoral rolls shall be 7 days after the date of
the writ.
Date of nomination
4A. (1) Subject to subsection (2), the date fixed for the nomination of the
candidates shall not be less than 10 days nor more than 27 days after the date of the
writ.
(2) Where a candidate for an election dies, after being nominated and before 12
o'clock noon on the day fixed as the date of nomination for the election, the day fixed
as the date of nomination for the election shall, except for the purposes of section 4B,
be taken to be the day next succeeding the day so fixed.
Date of polling
4B. The date fixed for the polling shall not be less than 23 days nor more than 31
days after the date of nomination.
Polling to be on a Saturday
4C. The day fixed for the polling shall be a Saturday.
Date of return of writ

4D. The date fixed for the return of the writ shall not be more than 100 days after
the issue of the writ.
Writs
5. (1) The writ shall specify the date for:
(a) the close of the electoral rolls;

Page 383
(b) the nomination;
(c) the polling; and
(d) the return of the writ.
(2) The writ shall be deemed to have been issued at the hour of 6 o'clock in the
afternoon of the day on which the writ was issued.
Time for nomination

6. Nomination may be made at any time after the issue of the writ but before
twelve o'clock noon on the day of nomination.
This indicates that the usage of the wording “at any time after the issue of the writs” must be held not
to restrict a person on weekends to nominate, as otherwise it would have been restricted to
“business hours”, where as the Australian Electoral Commission had the divisional offices closed
on weekends.
Time for nomination
6. Nomination may be made at any time after the issue of the writ but before
twelve o'clock noon on the day of nomination.
Victoria No. 6365 Senators Elections Act 1958
Limits within which dates may be fixed

The date fixed for the close of the Rolls shall be seven days after the date of the writ.
Subject to sub-section (1B), the date fixed for the nomination of the candidates shall
not be less than eleven days nor more than 28 days after the date of the writ.
Where a candidate for an election dies, after being nominated and before twelve
o'clock noon on the day fixed by the writ as the date of nomination for the election,
the day fixed as the date of nomination for the election shall, except for the purposes
of sub-section (2), be taken to be the day next succeeding the day so fixed.
The date fixed for the polling shall not be less than twenty-two days or more than
thirty days after the date for the nomination of candidates.
The legislation provides for “shall not be less than eleven days nor more than 28 days” and clearly
this didn’t occur as it was 9 days after which the nominations closed.
Short title
ú
1. This Act may be cited as the Senate Elections Act 1960.
ú Power to fix dates for election and place of nomination
3. For the purpose of the elections of senators for this State to the Senate of the
Commonwealth, the Governor in Council by proclamation published in the Gazette
may fix the dates
(a) for the issue of the writ; and
(b) for the close of the rolls; and
(c) on or before which candidates may be nominated (the day of nomination); and
Page 384
(d) for the polling; and
(e) on or before which the writ shall be returned, respectively;
and may also, by proclamation published as aforesaid, appoint a place for the
nomination of candidates.
ú Dates and places of nominations to be specified in the writ
4. The writ shall bear date as of the day of issue, and the dates fixed for the close of
the rolls, the nomination of candidates, the polling, and the return of the writ, and the
place appointed for the nomination of candidates, shall be specified therein.
South Australia BALLOT ACT 1862

BALLOT ACT 1862 - SECT 1 Election by ballot to be had under this
Act
1. Whenever, in any Act of the Parliament of the State, it shall be enacted

or provided that any election for any office in any public body shall be by
ballot, such election shall, unless therein otherwise provided, be made under
the provisions of this Act; and for the purposes of this Act such
first-mentioned Act shall be regarded as a special Act.
7. The election at each voting place shall be held before the returning
officer or deputy returning officer, and the voting at every election shall
commence at nine o'clock in the forenoon, and shall finally close at five
o'clock in the afternoon of the same day,
It appears that the provision “and the voting at every election shall commence at nine o'clock in
the forenoon, and shall finally close at five o'clock in the afternoon of the same day” was never
followed with the polling booths having been opened at 8 AM and closed at 6 PM
Short title
1.This Act may be cited as the Election of Senators Act 19031.
Power to fix dates
2.For the purpose of the election of Senators for this State to the Senate of the
Parliament of the Commonwealth, the Governor may, by proclamation, fix the dates
for —
(a) the close of the rolls;
(b) the nomination of candidates;
(c) the polling; and

Page 385
(d) the return of the writ,
and so far as any of such times may be mentioned in the writ for the election, they
shall be in accordance with the times fixed by such proclamation.
[Section 2 substituted by No. 86 of 1984 s.3.]
Limits within which dates may be fixed
3.(1)The date fixed for the close of the rolls shall be 7 days after the date of the writ.
(2)Subject to subsection (3) the date fixed for the nomination of the candidates shall
not be less than 11 nor more than 28 days after the date of the writ.
(3)Where a candidate for an election dies, after being nominated and before 12
o'clock noon on the day fixed by the writ as the date of nomination for the election,
the day fixed as the day of nomination for the election shall, except for the purposes
of subsection (4), be taken to be the day next succeeding the day so fixed.
(4)The date fixed for the polling shall not be less than 22 days nor more than 30 days
after the date of nomination.
This Act clearly states: “shall not be less than 11 nor more than 28 days” whereas the nominations were
closed after 9 days!
SENATE ELECTIONS ACT 1935

- SECT 4 Limits within which dates may be fixed
(1) The day of nomination of candidates shall not be less than 11 days or more than
28 days after the date of the writ.
(1A) The roll of electors for the election shall close 7 days after the date of the writ.
(2) The date fixed for the polling shall not be less than 22 days or more than 30 days
after the day of nomination of candidates.
Tasmania’s provision, “shall not be less than 11 days”, in regard of close of nominations, clearly was
never complied with.
My suggestion is that the Australian Electoral Commission applies the following compounding formula
to establish the earliest date to hold an election;
Date of Writ + number of days applied and permitable as clear days for
nominations + 1 day of nomination + number of days applied and permitable
as clear days between the day of nominations and the day of the poll

Page 386
And, if they have a problem calculating then perhaps they use a calendar and mark each day to get to the
appropriate result! Better then having elections held by illegal process!
Could it be that the current election in the State of Western Australia for the seat of Merredin might be
held against legal provisions of the applicable timetable? Even so it might be a State election, I
wonder if the Australian Electoral Commission might have given incorrect advise in regard of
that election process also?


WITHOUT PREJUDICE

A. K Becker, Electoral Commissioner
cc. Katy Mitchell, Director, Government and Legal Section
Fax; 02 6271 4457 Ref: 2001/1154/gals4497

Ph; 02 6271 4678
Sir/Madam,
I received a 10 December 2001 response to my FOI request and I wish to thank you
for this albeit there are further questions arising from this of which I include some below.
Item 6;
In relation to paragraph 7 & 19;
I noticed from Electoral Newsfile No. 37, Dec 1993 that on page 1 right column it refers to
“I submitted the dates I proposed to the Chief Electoral Officer; he
suggested a minor alteration regarding the return of the writ, which I
accepted, and the writ was accordingly issued early today.”
This the Speaker stated in January 1946.
On page 4 under the heading “By-election time table cont.” it set out the procedure involving;
“convenient dates are selected and the Electoral
Commissioner is consulted as to their suitability
for electoral arrangements”
In view that the Governor-General has no personal interest if an election is held within 35 days
or 56 day as long as it is within the legislative provisions, I request you to clarify as to how the
process is applied?
It must be clear that the governor-General relies upon the advise of the Federal Executive
Council as to Prorogue the Parliament, Dissolve the House of Representatives and to issue writs.
Obviously, the governor-General isn’t likely to check of every writ or Proclamation he signs the
legalities as he relies upon his Federal Executive Council. The FEC in turn obviously relies upon
the AEC to advise of dates. As such, my perception is that writs can’t be issued until the day
after the Proclamation of the dissolution of the House of Representatives (Section 36 Acts
Interpretation Act 1901 applies) and as such, what, if any advise was given by the AEC in
regard of the elections process involving the purported election held on 10 November 2001?

Page 387
Was the AEC consulted by the FEC (or any member acting for the FEC) or the Governor-
General in regard of the issue of the writs with certain dates? In view that you acknowledge that
there are procedures that refer to this?
In relation to paragraph 9;
You refer to “For your information, section 220 of the Electoral Act sets out the hours of polling
for federal elections as 8 am till 6pm.”
I quote hereby the relevant Senators Act, 1903;
ELECTION OF SENATORS ACT, 1903 - SECT 2 SOUTH AUSTRALIA

(1d) Subject to subsection (1e), the date fixed for the nomination of the candidates
shall not be less than eleven days nor more than twenty-eight days after the date of
the writ.
(2b) The poll shall be open at eight o'clock in the morning, and shall not close until all
electors present in the polling booth at six o'clock in the afternoon, and desiring to
vote, have voted.

7. The election at each voting place shall be held before the returning officer or
deputy returning officer, and the voting at every election shall commence at nine
o'clock in the forenoon, and shall finally close at five o'clock in the afternoon of the
same day,
It is my view that contrary to your suggestion Section 220 doesn’t apply to Senators election,
indeed the framers of the commonwealth constitution made it very clear that Senate elections
must be conducted according to local laws of the State as the State was in the best position to
determine the Senate elections requirements.
It appears from your comment and from the Candidates’ Handbook that the AEC has taken the
position that State laws in regard of Senate elections no longer applies, please clarify this?
Section 9 of the Commonwealth Constitution clearly provides for “time and places” and is not
ousted by Section 10 of the Commonwealth Constitution and if you check the HANSARD of
the Constitutional Convention.
I do seek to get at least the basics rights between the AEC and myself and so hereby quote the
HANSARD of 16-3-1898 of the Constitutional Convention and perhaps you might now
reconsider your response given to paragraph 9?
HANSARD 16-3-1898
Mr. SYMON (South Australia).-I wish to refer particularly to clause 10. Under that
clause as it originally stood the Parliament of the Commonwealth would make laws
prescribing the times, places, and uniform manner for electing senators. In the
interval, unless these laws are made by the Parliament of the Commonwealth, the
Parliament of the state determines these matters. Under the proposed amendment, the
Parliament of the Commonwealth may make laws prescribing the method of choosing
the senators. This is only the alteration of a word, but the point I wish to direct
attention to is, that the proposed amendment then withdraws from the Parliament of
the Commonwealth the power, given by the existing clause 10, of making laws for
Page 388
determining the times and places of elections of senators by the state, and it gives that
power exclusively to the state. That is an alteration of substance, and the question is,
whether the Convention desires that. All I wish to observe upon it is that it will
practically have the effect of giving additional legislation as to the method of
choosing senators. The Parliament of the Commonwealth will prescribe the manner
and everything incidental to the manner, whilst the Parliament of the state, in relation
to the same work, will prescribe the times and places of elections. That is a matter of
substance. This drafting amendment involves a very serious matter of substance,
whether we agree with it or not. Of course I prefer the thing as it stood, that
everything relating to the conduct of the elections for the Senate should be
determinable exclusively, if they exercise the power, by the Federal Parliament.
Mr. BARTON.-It was never so determinable.
Mr. SYMON.-I think so, under clause 10.
Mr. BARTON.-Not as it stood. It only said times, places, and manner, with the
whole body of existing electoral laws untouched.
Mr. SYMON.-No doubt. Perhaps my honorable friend will tell me whether the
effect of the amendment is not to divide this power of prescribing with regard to the
election of senators between the Parliament of the Commonwealth and the Parliament
of the states, the Parliament of the Commonwealth having power to deal with the
"method"-which I think is a great improvement on the word "manner"-and the
Parliament of the [start page 2446] state having power absolutely to determine the
times and places of election?
Mr. BARTON (New South Wales).-I think my honorable friend's interpretation is

about correct. What occurred with the Drafting Committee was this-they altered
"manner" into "method," in order that not only what might ordinarily be described as
the manner might be included, but that the Parliament of the Commonwealth might
prescribe something which more nearly approached to a system. There is a difference
between manner and method, because method more reasonably describes a system. It
came, therefore, more nearly to the expressed wish of the committee that there should
be no prevention of the Parliament of the Commonwealth legislating, if they so
please, for some system of representation which might suit the progressive tendency
of the Commonwealth.
Mr. HIGGINS.-Hare's system, for instance.
Mr. BARTON.-It might be Hare's system or some other of the many systems
which have been suggested. It was thought that, whatever the opinion of one or other
member of the committee might be, the power, at any rate, should be in the hands of
the Commonwealth. So, as to substance, we have somewhat extended the power by
using "method" instead of manner," but to what degree would be a matter of opinion
among honorable members.
Mr. DEAKIN.-That was in response to a request by the committee.
Mr. BARTON.-Yes. There was a general expression of opinion. Then, as to time

and place, we say that, having amended clause 10, we have widened the area of the
Page 389
laws in force in each state, and that was done at a previous stage, making all the
electoral laws apply with the exception of the time and place. With regard to the
alteration from "manner" to "method," we thought that was a matter of detail, which
might safely be left to the states, who will really know the most convenient way to
arrange the times and places of elections. This will alter the times and places. This
alteration crept in since 1891. In 1891 the power of the Parliament of the
Commonwealth was simply to deal with a uniform manner of election. Since then
there has been an alteration as to time and place; but that was at a time when the
operations of the electoral law which were to apply in the election of the Senate were
strictly defined and enumerated. We thought it wiser at the previous stage to open up
new ground by making all the electoral laws applicable. As time and place were
ordinary incidents of the election laws, and would not be within the knowledge of the
Parliament of the Commonwealth, we thought it better that that power should be left
to the states. I forgot to mention that the great difference between the Bill of 1891 and
this Bill is that in the Bill of 1891 the election was to be by the Parliaments of the
states. Even in the Bill of 1891 it was prescribed that the Commonwealth should fix
the time and place as well as the manner, and there would be practically no
inconvenience, but there would be inconvenience here, inasmuch as the whole thing is
to be by popular election under the state electoral laws, unless it was practically under
the management of those who have the local knowledge.
Mr. ISAACS (Victoria).-I should like to point out one matter which I think is
deserving of attention. I agree with my honorable friend that the word "method" goes
further than the word "manner," but I am not sure that the word "manner" is not the
right one, if the word would have the extended application it might have. If it includes
the power to prescribe that the Senate may be elected by the Parliament of the state, I
think it is a mistake.
Mr. BARTON.-Until the Commonwealth legislates.
Mr. ISAACS.-Under new clause 9, would it not be competent for the Parliament of
the Commonwealth to provide [start page 2447] that the Senate might be elected by
the Parliaments of the states?
Mr. BARTON.-No. That would be in conflict with old clause 9.
Mr. ISAACS.-I was going to call attention to the fact that if "method" goes beyond
"manner," and provides something more than that, should not some such words be put
in as were put in before to the effect "subject to the provisions of the Constitution."
Mr. BARTON.-I quite see the point that my honorable friend wishes to urge, but a
court would have to read these words so that there would be no repugnancy.
Mr. ISAACS.-If my honorable friend is satisfied about that, it is all right. I was
going to call attention to the fact that the previous clause provides for election by the
people.
Mr. BARTON.-The two will have to be read together, and I do not think any court
would say there was any repugnancy, because the court would be bound to go the
other way.

Page 390
The amendments of the Drafting Committee in clauses 9 and 10 were agreed to.
In relation to paragraph 10, 17 and 18; and your notation in response to paragraph 5
stating “The AEC uses these websites itself and does not hold any more up-to-date copies of
State legislation.” I assume that p27 (section 3.2 of the Electoral Pocket Book might contain the
relevant State laws of WA in regard of State elections other then Senate elections?

It appears your response to this paragraph is utterly misleading as the AEC can accept
nominations after 12 noon of the day of closure of the nominations provided the candidate(s)
was/were inside the building. I understand that the AEC specifically submitted to the Joint Select
committee in Electoral matters to amend Section 156 of the Commonwealth Electoral Act 1918
to reduce by 1 day to allow 24 hours for the AEC to check any signatures being valid. As such,
nominations can’t be deemed to be accepted until the AEC has accepted the nomination for
having sufficient valid signatures. The AEC argued for the JPC that it required 24 hours for this
and as such not the filing but the acceptance of the nominations can be till 24 hours after the
close of nominations provided the nomination forms were handed in before 12 noon on the day
of close of nominations.
As such your wording “ as the provisions of the electoral Act do not allow the AEC to accept late
nominations.” Is misleading. The “acceptance” of the nominations doesn’t relate necessary by
the handing in of the nomination forms. For example, when I handed in my nomination forms
some about 42 were not valid and so my nomination forms were handed back and not accepted. I
then got more signatures and my nomination forms were “accepted” the following day, when
presented again. Considering that it took about 1 hour for the AEC to check signatures being of
eligible voters the handing in of the nomination forms versus the time of acceptance (even if all
signatures had been valid) could therefore be different. Nothing in Section 156, in my view,
appears to contradict the above version I have. Indeed, again, the submission of the AEC in 1996
clearly underlines this. Please clarify your response?
In relation to paragraph 20; I have as yet not been able to check the date of 24 October 2001
but I assume you are correct. I used the date of the E-mail of the Leader of the Australian
Democrats by error, which was forwarded by me to the AEC.
In relation to paragraph 21 & 22;

Your response refer to “The AEC does not hold any correspondence” would it be correct that the
AEC neither holds any other details/information as to paragraph 21 question of contact between
the AEC and Governor-General, e.g notes of contact etc? Likewise so with the State Governors?

Irrespective of any litigation undertaken, I view that this request is one proper for a response
under the FOI Act and request you to reconsider your response.
As a elector, entitled to object an election for the Senate within Section 353(1) of the
Commonwealth Electoral Act 1918, if I wish to do so, it is obvious that I am entitled to seek a
clarification as to how the AEC applies the election process and hardly would the Courts
appreciate petitioners to file petitions without having bothered to check with the AEC details.
Whereas I have referred to the Speaker in regard of House of Representatives and this from the
Election Newsfile received no such details are provided as to the AEC involvement with the
Governors.
Overall comment
Page 391
Albeit some issues are still to be resolved, I recognise the assistance provided by your office and
do wish to thank you for this so far as details/information provided.
I accept that the AEC has no control over the actual publications of the Gazette’s and other
matters, and so if anything I am exposing problems existing where being it by misconceptions,
delay in publications etc the elector and or candidates in the overall are denied a FAIR AND
PROPER election process.
I recommend that you obtain a copy of the booklet titled “THE CONSTITUTION” “as in
force on 1 July 1999” (ISBN 0-642-38283-2 Cat No. 99 1598 3, issued by the Attorney-
Generals Department via AusInfo being the Commonwealth Bookshops) which on pages 61 and
62 refers to current State laws applicable to Senators elections.
I like to note that Section 31 of the Commonwealth Constitution referring to “Until the
Parliament otherwise provides” basically was satisfied when the Commonwealth enacted its own
Electoral legislation and as such, State legislation no longer are relevant in regard of elections
(election process) for the House of Representatives. It appears to me that somehow page 27 of
the Electoral Pocket Book may have inadvertently stated the outdated electoral provisions instead
of the State Senate legislations that were and still are applicable. As such, the wording “Statutory
timetables for State and Territory elections” refers to non applicable (for the Federal election)
electoral acts, rather then the Senate elections Act!
I quote hereby the following:
HANSARD Constitutional Convention 13 September 1898 Pages 391-394
The Hon. I.A. ISAACS: No; if the governor-general issues the writs for the election of
the house of representatives and the writs for the election of the senate, it is a mere matter
of adding a few names to the voting papers.
The Hon. E. BARTON: The argument is that that would be so if the election of the
house of representatives and of the Senate were held at the same time!
The Hon. I.A. ISAACS: Yes; unless a dissolution throws the thing out of gear; I am
drawing attention to what will happen, in the first instance, if this suggestion is not carried
out. The governor-general will issue the writs for the election of the house of
representatives, and appoint his own returning officers, who will make all
arrangements for the polling all through the country. The central government will fix
the times and hold their elections if there is [start page 392] no such thing as a senate to
be elected. The governor of each state will issue his writs, appoint his own returning
officers, and fix his own polling booths, times, and places, so that there will be two sets
of elections going on with a double expense. It seems to me it is an unfair expenditure to
impose on the states. They have to hold all the elections.
The Hon. E. BARTON: It will not saddle the federation with any expense!
The Hon. I.A. ISAACS: It will saddle the people of the federation with a double
expense; for they will have to pay one way or the other. It seems to me, unless hon.
members are wedded very strongly to the idea that there is some virtue in the governor
certifying to the governor-general that the senate is elected, we ought not to lose the
Page 392
substance for the sake of the shadow. Therefore, I support the suggestion made by the
Legislative Assembly of Victoria.
The Hon. E. BARTON (New South Wales)[2.38]: I do not by any means wish to have a
long debate on minor points. I am not quite satisfied by the explanation of my hon. and
learned friend that there is going to be any great inconvenience or expense caused by
this provision. If the elections for the senate and for the house of representatives are
held at the same time, as they will be on the very first occasion, but, if the bill stands
as it is, very likely will not be at any other time, what will be the result? The expense
will have to be incurred except in the first instance, in which case there might be some
saving. The expense in all the remaining cases will have to be incurred, because the
elections will be held at different times.
The Hon. I.A. ISAACS: No!
The Hon. E. BARTON: The members of the senate are to hold their office for six
years, and one-half of the senators will go out every three years, if the bill stands as it
is. Every member of the senate will hold office for six years, although half of them
may go out every three years. There is to be an election every three years, but the
members of the senate are to hold their office up to the time specified to the day. Now
we know well, as a matter of common occurrence, that, where there has been nothing
to cause a dissolution of the lower chamber, before the effluxion. of time, the case is
extremely rare, nevertheless, in which the members hold their seats until that time has
actually arrived. In this colony the practice is to dissolve one, two, or three months
before the time expires. Even in that case it would be probable that there would be a
coincidence in point of time. Whilst the senate is not dissoluble, except by three, yearly
periods, and the house of representatives is dissoluble, we know that in the majority of
cases the house of representatives meets with some question which causes its
dissolution irrespective of the question of effluxion of time. Therefore, instead of there
being coincidence between these times, the immense probability is that, unless some
curious accident happens, these elections will be at different times. If they be at
different times, whether the federation conducts both or one, and the state conducts
the other, the total expense will be the same, and it will have to be incurred.
Therefore, I do not think we shall gain anything. Of course something further may be
pointed out to cause one to alter that opinion. The clause stands in this position: that it
is more in accordance with the separation of functions between the two houses, and
the admission that the one is a proportional representative chamber, disregarding
state limits, while the other regards state limits, that separate authorities should take
charge of the elections. I admit there is not much in the point one way or the other. I
do not see any reason for change. If I could see that any expense would be saved I
might waver in my opinion.
[start page 393]
The Right Hon. C.C. KINGSTON (South Australia)[2.42]: I am inclined to think the
balance of convenience is in favour of giving the federal authority complete control in
connection with the matter. It seems to me highly objectionable that in any matter affecting
federal affairs the carrying out of the necessary provisions for securing the representation of
the states should be left to the local executive, which might be altogether hostile to
federation. I am inclined to think and I put it for the consideration of Mr. Barton that we
ought to make federal authority, within the scope of federal jurisdiction, certainly to the
Page 393
extent of constituting the federal parliament, supreme in itself, and not in any degree
dependent upon the will of the local executive, which, if given any right of interference,
might exercise a powerful influence for ill on federal affairs.
The Hon. N.E. LEWIS (Tasmania)[2.44]: It appears to me that the words proposed to be
omitted would properly find a place in an electoral act rather than in a constitution act.
When the federal parliament is constituted, and frames its provisions for carrying out the
elections for the senate, and also for the house of representatives, no doubt some provision
for the certifying of the names of the senate will be made. It seems to me undesirable to
hamper the constitution with minor provisions for certifying the names of the senators. That
had better be left to another measure. The elections, I take it, will be carried out under the
authority of the federal parliament and the federal executive.
The Right Hon. G.H. REID: The first election, cannot be. There will be no federal
parliament then!
The Hon. N.E. LEWIS: There will be a federal executive to carry it out, and
someone to issue the writs and make provisions. We have provided later on that until
Parliament otherwise provides the laws in the several states for the time being relating
to certain matters shall be applicable to the first election. I am inclined to support the
suggestion made by the Victorian legislature.
Mr. WISE (New South Wales)[2.46]: I shall support the amendment, because I hope that,
after federation, the office of state governor will become unnecessary. Therefore, I shall
vote against the insertion of any words in the constitution which by implication assume the
continuance of that office.
The Hon. Sir J.W. DOWNER (South Australia)[2.47]: I hope the amendment will not be
made. In a number of incidental amendments there is frequently a big principle involved,
and there is one in this. Whom do the senators represent? They represent the states.
Who is to certify that they are elected? The states.
The Right Hon. Sir G. TURNER: There will be a returning officer; why should he not
certify?
The Hon. Sir J.W. DOWNER: Who should more properly certify as to the persons
elected than the governor of a state. It is preserving the essence of the state unity to keep
the provision as it is at present. With regard to the question of expense, with our internal
parliaments, would we ever agree to make a law compelling the elections of the Legislative
Council and Legislative Assembly to be coincident in time? If we did, it would bring about
most serious inconvenience to one or the other, and the result would be that one body
would be insufficiently representative whilst the other would be fully representative. I think
the argument of Mr. Barton is unanswerable. To make the amendment which my hon.
friend proposes with a view of saving expense might produce an inconvenience which will
be greater than the expense.
[start page 394]
The Hon. I.A. ISAACS: I cannot see any inconvenience!

Page 394
The Hon. Sir J.W. DOWNER: First of all, my hon. friend only proposes to strike out a
reference to the certifying of the election of the senate. What is the object? Whom does my
hon friend want to certify who are the senators? Surely if the senators Fire to represent the
state, the head of the state is the proper person to say who has been elected.
The Hon. I.A. ISAACS: As long as the people elect, and the right men are elected, what
matter who certifies?
The Hon. Sir J.W. DOWNER: If there is nothing in it, why waste time?
An HON. MEMBER: It does not matter who issues the writ!
The Hon. Sir J.W. DOWNER: It does not. Some certificates must be handed in to
certify that the members of the senate are properly elected, and who should do that but the
governor?
An HON. MEMBER: Would not the returning officer do?
Mr. HIGGINS: The returning-officer to the governor-general!
An HON. MEMBER: Why not leave it to the governor?
The Hon. Sir JOSEPH ABBOTT: Why waste time?
The Hon. Sir J.W. DOWNER: Yes, I would ask, why waste time?
Mr. MCMILLAN (New South Wales)[2.49]: I want to know whether this is to come in
again? If we destroy clause 12, does the hon. member intend to insert anything in clause 41,
or to propose a new clause?
An HON. MEMBER: Follow the same practice!
Mr. MCMILLAN: The principle then is that underlying this proposal the
parliament or the state as a state should have nothing to do with the modus operandi
of the elections.
The Hon. I.A. ISAACS: They should have all the power in substance, but the mere
machinery should be in the hands of the federal authorities!
Mr. MCMILLAN: That is what I wanted to understand!
It appears that albeit the AEC refers to election cost, this covers both Senate and House of
Representatives cost whereas it appears to me that the States were to finance the cost of Senate
elections and the Federal government the cost of the House of Representative elections. Where
an election is conducted together by the Federal Government then the States are to compensate
their part in regard of Senate elections cost.
In any event, it must be clear that the framers all along intended that the States retained control as
to time and places of elections procedures regarding Senate elections.

Page 395
The AEC doesn’t allow somehow an elector to vote for the 2 different elections, held at the same
time, on 2 different occasions and this is of concern.
The AEC ought to record twice a person attending for voting. One for the Senate and one for the
House of Representatives if the elector gets ballot papers for both.

WITHOUT PREJUDICE
Fax; 02 6271 4457 Ref:

Ph; 02 6271 4678
AND TO WHOM IT MAY CONCERN
Sir,
Today, I appeared before the JSCEM and was asked about the AEC. I did express my
views about the AEC alright.
Senator Ray, himself had earlier, with another witness, made clear that it is not an offence
to vote.
Obviously, the issue is also how many people were fined $20.00 and paid, for not voting,
where not just Senator Ray, but in fact the High Court of Australia made clear that one can’t be
fined for not voting?
Why at all send a elector a letter to explain why the person didn’t vote?
I view, that the AEC ought to refund to all electors the fines they collected as well as any
convictions made ought to be set aside, in view that convictions were obtained without legal
jurisdiction and legal justification. Where NOT VOTING isn’t an offence, then the Courts had no
legal jurisdiction to convict a person for something that isn’t an offence.
As to a Charge for breach of Section 388 is clearly an absurdity, as this Section rather is
one of evidence, not for a charge.
245 Compulsory voting
(1) It shall be the duty of every elector to vote at each election.
(2) The Electoral Commissioner must, after polling day at each election, prepare for each
Division a list of the names and addresses of the electors who appear to have failed to vote at
the election.
(3) Subject to subsection (4), within the period of 3 months after the polling day at each election,
each DRO must:
(a) send a penalty notice by post; or
(b) arrange for a penalty notice to be delivered by other means;
to the latest known address of each elector whose name appears on the list prepared under
subsection (2).
(4) The DRO is not required to send or deliver a penalty notice if he or she is satisfied that the
elector:
(a) is dead; or
(b) was absent from Australia on polling day; or
Page 396
(c) was ineligible to vote at the election; or
(d) had a valid and sufficient reason for failing to vote.
(5) A penalty notice is a notice in an approved form notifying the elector that:
(a) the elector appears to have failed to vote at the election; and
(b) it is an offence to fail to vote at an election without a valid and sufficient reason for the
failure; and
(c) if the elector does not wish to have the apparent failure to vote dealt with by a court,
the elector may, within the prescribed time:
(i) if the elector did vote as required by this Act—give the DRO particulars of the
circumstances of the elector’s voting; or
(ii) if the elector failed to vote—give the DRO a valid and sufficient reason for the
failure; or
(iii) pay to the DRO a penalty of $20.
(6) If an elector does not respond to a penalty notice in the manner indicated in
subparagraph (5)(c)(i), (ii) or (iii), within the prescribed time, the DRO must send by post or
deliver to the elector, at his or her latest known address, a second penalty notice, having,
subject to subsection (7), the same form as the first such notice but bearing a notation to the
effect that a previous notice in the same terms was sent to the elector but that a response in
the manner indicated in subparagraph (5)(c)(i), (ii) or (iii) was not received.
(7) The provisions of this section, other than subsection (6), apply in relation to a second penalty
notice:
(a) as if it were a penalty notice issued under subsection (3); and
(b) as if, in the provisions of this section as so applied, references to paragraphs and
subparagraphs of subsection (5) included references to those paragraphs and
subparagraphs as applied by this section.
(8) If, within the prescribed time:
(a) an elector responds to a penalty notice in the manner indicated in subparagraph (5)(c)(i)
or (ii) and the DRO to whom the response has been given is satisfied:
(i) in the case of a response of the kind referred to in subparagraph (5)(c)(i)—that the
elector did vote as required by this Act; or
(ii) in the case of a response of the kind referred to in subparagraph (5)(c)(ii)—that
the reason for the failure to vote is a valid and sufficient reason; or
(b) an elector responds to a penalty notice by paying the penalty of $20;
proceedings against the elector for a contravention of subsection (15) are prohibited.
(9) If the DRO to whom a response to a penalty notice has been given under
subparagraph (5)(c)(i) or (ii) within the prescribed time is not satisfied:
(a) in the case of a response of the kind referred to in subparagraph (5)(c)(i)—that the
elector voted as required by this Act; or
(b) in the case of a response of the kind referred to in subparagraph (5)(c)(ii)—that the
reason for the failure to vote is a valid and sufficient reason;
the DRO must send by post or deliver to the elector, at his or her latest known address, a
notice in an approved form, notifying the elector that:
(c) the DRO is not so satisfied; and
(d) if the elector does not wish to have the apparent failure to vote without a valid and
sufficient reason for such failure dealt with by a court, he or she may, within the
prescribed time, pay to the DRO a penalty of $20.
(10) If, in response to a notice under subsection (9), the penalty of $20 is paid to the DRO within
the prescribed time, proceedings against the elector for a contravention of subsection (15) are
prohibited.

Page 397
(11) If an elector is unable, by reason of absence from his or her place of living or physical
incapacity, to respond to a penalty notice or to a notice under subsection (9) within the
prescribed time, any other elector who has a personal knowledge of the facts may, subject to
the regulations, respond to the notice within that time, and such response is to be treated as
compliance by the first-mentioned elector with the notice.
(12) The DRO must prepare a list of all electors to whom a penalty notice has been sent or
delivered and note on that list in relation to each elector:
(a) whether there has been a response to the notice; and
(b) if there has been a response:
(i) whether the DRO is satisfied that the elector did in fact vote or that there was a
valid and sufficient reason for the elector’s failure to vote; or
(ii) whether the penalty has been paid.
(13) The DRO must note on the list prepared under subsection (12) in relation to each elector to
whom a notice under subsection (9) has been sent or delivered:
(a) the fact that a notice has been sent or delivered under subsection (9); and
(b) whether there has been a response to the notice; and
(c) if there has been a response—whether the penalty has been paid.
(14) Without limiting the circumstances that may constitute a valid and sufficient reason for not
voting, the fact that an elector believes it to be part of his or her religious duty to abstain
from voting constitutes a valid and sufficient reason for the failure of the elector to vote.
(15) An elector is guilty of an offence if the elector fails to vote at an election.
Penalty: $50.
(15A) Strict liability applies to an offence against subsection (15).
Note: For strict liability, see section 6.1 of the Criminal Code.
(15B) Subsection (15) does not apply if the elector has a valid and sufficient reason for the failure.
Note: A defendant bears an evidential burden in relation to the matter in subsection (15B) (see subsection
13.3(3) of the Criminal Code).
(15C) An elector who makes a statement in response to a penalty notice or to a notice under
subsection (9) that is, to his or her knowledge, false or misleading in a material particular is
guilty of an offence.
Penalty: $50.
(16) Proceedings for an offence against this section may be instituted only by the Electoral
Commissioner or an officer authorised, in writing, for the purpose by the Electoral
Commissioner.
(17) In this section, elector does not include:
(a) an Antarctic elector; or
(b) an eligible overseas elector; or
(c) an itinerant elector.
(18) In this section, a reference to the prescribed time for a response to a penalty notice or a notice
under subsection (9) is a reference to the time for response specified in the notice.
(1)

Page 398
Compulsory or not to vote?
With today’s processes that “discrimination” ought not to exist, it is then remarkable that the
Parliament doesn’t have a “compulsory” voting system in regard of Aboriginals and Torres
Strait Islanders, yet forces ordinary Australians having to vote!
Are we being oversensitive to Aboriginals and Torres Strait islanders or insensitive to the rights
of Australians to have the same anti discriminatory system applied as the Anti Discrimination
Act 1975 pursues?
THEOPHANOUS v THE HERALD AND WEEKLY TIMES LIMITED AND ANOTHER

F.C. 94/041 Constitutional Law (Cth) - Defamation (1994) 182 CLR 104 (1994) 124 ALR 1
(1994) Aust Torts Reports 81-297
In 1901, voting was not compulsory in any State.); the
extraordinary development and increased utilization of the means of mass
communication; advances in general education; and, the increasing appreciation
and assertion of the intrinsic equality of all human beings.
When we look upon the Parliament. Such as in a double dissolution, the Court has held that those
Parliamentarians can vote as they wish and do as they wish. Yet, the parliamentarians do not give
the elector the same choice.
A Parliamentarian simply refrain from voting, or doesn’t show up, yet when it come to an
election their conduct is to enforce electors to appear for voting.
I have never bothered about compulsory voting, until I notices that we have that electors are
forced whereas there are different rules for the Parliamentarians, the Torres Strait Islanders and
Aboriginals. If this is to show non discriminative conduct, then there is a failure of
understanding what the word “discrimination” actually stands for.
In my view, the parliament ought not force electorate to having to vote, if they themselves do not
show a proper example to force themselves to vote.
Also, if it is good enough to put in place how electors must fill in a ballot paper (as such how to
cast their vote) then let have the same regime in Parliament, that not only each member must be
present but is dictated how a vote must be cast. It is no good of grandstanding that the electorate
must vote within a certain regime whereas parliamentarians do not have to do so.
Voting technics ought to be “universal” throughout the country!
It is the same where parliamentarians have at time utter disgraceful conduct in the parliament,
and children see that kind of conduct displayed. Yet, when the children mimic the same they are
in for a punishment.
Same like the “bloody idiot” road safety advertising, whereas a child using the same is being
punished. If a private company were to have used such offensive kind of slogan, then they would
have quickly had their add banned.
Standards ought to be set by the parliament to show one of non discriminating conditions. As
such, unless the Parliament adopts its own rule that each Member must attend for each voting
(After all they are getting paid to represent the electorate) and vote in a certain prescribed

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pattern, the Commonwealth Electoral Act 1918 ought be amended to make voting and
attendances non compulsory.
We ought to look at this way. If say, 45% percent of the people wanting to vote desire to vote for
a particular political party and the rest for all other parties, then if then the forcible voting causes
people to vote more then the 45% percent it doesn’t make it that the party has been duly and
properly elected if then gaining office. As those who voted against their will may have expressed
their votes regardless of their true intentions. Being it as a protest vote, or otherwise.
I recall that Senator Ray during the Melbourne 12 August 2002 hearing raised the issue of voting
on ballot papers.
I for one can state that I hold the Senate voting for above the box only, being intimidating and
denies a FAIR AND PROPER voting. I am well aware that the High Court of Australia made its
ruling about the Langer case etc. But reality is that people are “forced” to vote in a certain way
because if they do not vote above the line with a mere single mark, then they have to fill in the
entire sheet of 57 names where they want to vote independent.
Meaning, more likely mistakes being made and at a considerable more usage of time.
If then there is a long row of people standing outside the polling place, it could cause
considerable friction if electors all were to vote below the line. By this, people have a pressure as
to vote “quickly”, and this clearly interferes with FAIR AND PROPER elections.
In my view, the compulsory voting serves really no other purpose but to fill the coffers of
political parties in the main, as they then can get more money for the overall voting.
After all, if the Parliament were to allow for non-compulsory voting, and say 30% of the electors
wouldn’t bother to vote, then this would have a significant financial impact upon political parties
of tens of millions.
Section 51 of the Constitution provides that legislation must be for the “good government” not
for the good of political parties” and as such, in that regard the parliament has no alternative but
to amend legislation to make voting to be non-compulsory. If it fails to do so then it only proves
it couldn’t give a darn about what is “good for the public” rather that the entire matters is self
interest of political unionism”
Perhaps the ROYAL COMMISSION in the building industry ought to compare builders
workers tactics complained about with those of the Commonwealth Parliament, of rorting etc.
They ought to compare the alleged abuses within the building industry with that of Tony Abbott
to unconstitutional force, by blackmail, for the States to accept Commonwealth Industrial
Relations or be without funds for certain projects.
I am not a builder worker and neither have any associations with any builder worker, to the best
of my knowledge, and perhaps that is why I can see the injustice in having a ROYAL
COMMISSION in the one but not in the other!
In any event, back to compulsory voting, an artificial voting by making it compulsory, doesn’t
enhance elections at all.

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And, if we have Senator Ray making clear, as I understood it, that voting isn’t compulsory, then
why is the Commonwealth Electoral Act 1918 not showing the same?
I do wish to point out;
(14) Without limiting the circumstances that may constitute a valid and sufficient
reason for not voting, the fact that an elector believes it to be part of his or her religious
duty to abstain from voting constitutes a valid and sufficient reason for the failure of the
elector to vote.
My religion is not to do something I view is unlawful, and so I didn’t vote, as I did set out
previously already.
Muldowney v State of South Australia & Anor C22/1993 (3 October 1995)

BRENNAN CJ: But it does not really do that, does it? It prohibits the advocating of that
which is not proscribed and what is not proscribed is unenforceable in any event. This is a
secret ballot process, the Act makes that perfectly clear. If you found an unfilled
ballot paper you would not or ought not to know who put it in anyhow. So 85(2) is
only giving legislative acknowledgment to what is, in fact, the truth. Section 126 on the
other hand is designed to prevent the development of a practice which might subvert the
representative process.
And
The other matter it would be worth drawing to the Court's attention about the Electoral Act
is section 85(2), the provision that permits the unmarked ballot paper. The effect of that
section is, in our submission, not altogether clear in this regard. If the Act did not
contain that provision, the law as we understand it would be that an elector who put
an unmarked ballot paper in the ballot box would not have committed an offence.
TOOHEY J: When you say "that provision", Mr Solicitor, are you speaking of section
85(2)?
MR SELWAY: Yes, your Honour. Our understanding of the cases dealing with this and
like provisions - sorry, section 85 leaving out subsection (2) if it was not there - is that
those provisions do not create an offence of either making an informal vote or not voting at
all so long as one goes through the process of attending at the polling station, having your
name crossed off, picking your ballot paper up and putting the ballot paper in the
ballot box. If I could just refer the Court to Faderson v Bridger (1971) 126 CLR 271;
the case of Lubecke v Little (1970) VR 807, at 811 - and this case is not on anyone's list,
I do not think; and a case on the South Australian Electoral Act before the 1985 Act,
Douglas v Ninnes (1976) 14 SASR 377, at 379. The effect of that proposition is that it is
not an offence, as it were, even apart from section 85(2), to leave the ballot paper
unmarked.
233 Vote to be marked in private

(1) Except as otherwise prescribed the voter upon receipt of the ballot-paper shall without delay:
(a) retire alone to some unoccupied compartment of the booth, and there, in private, mark
his or her vote on the ballot-paper;
(b) fold the ballot-paper so as to conceal his or her vote and:

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(i) if the voter is not an absent voter—deposit it in the ballot-box; or
(ii) if the voter is an absent voter—return it to the presiding officer; and
(c) quit the booth.
(2) A presiding officer shall enclose each ballot-paper of an absent voter returned to the
presiding officer under subsection (1) in the envelope bearing the declaration made by the
voter under subsection 222(1), securely fasten the envelope and place it in the ballot-box.
232 Voters to be recorded

(1) The presiding officer or a polling official at a polling place shall, immediately upon handing a
ballot-paper to a person whose name is on the certified list of voters for the polling place,
place a mark against the person’s name on that list.
(2) The presiding officer at a polling place shall make a record of the name of each elector who
casts a declaration vote at the polling place and, in the case of an absent voter, of the
Division for which the elector declares under subsection 222(1) that he or she is enrolled, and
shall, at the close of the poll, forward the record, duly certified by the presiding officer, in
accordance with section 228.
While on the subject. While Section 232 refers to the presiding officer shall “on the certified list
of voters”, etc, I view it ought to relate to “electors” not “voters” This, as an elector is a person
who may attend but unless having caste his or her choice in accordance with the legal
requirements of the Act can’t be deemed to be a voter.
As such, a n elector must not be deemed a voter where he/she didn’t cast a vote but merely
handed in a blank ballot paper.
If the Act accepts that a person is a “voter’ merely by giving name and address, then the elector
can walk out without even going into a polling booth having been deemed to have cast his/her
vote at that very moment.
As section 232 refers to “Vote to be marked in private” then one doesn’t become a “voter” unless
one actually exercise the voting itself!
Likewise, Section 231 using the term “person claims to vote” ought to be “person claims the
right to vote”, this as the person is not claiming to vote but the right to vote. If the officer doesn’t
accept the person being entitled to vote then no voting occurs. As such, there is a distinct
difference between claiming a right to vote and claiming to vote.
Also 234(b) using the term “read the declaration to the voter” appears to be misleading, as is with
most of the section. The elector doesn’t become a “voter’ unless being involved with the actual
voting! As such, it must refer to the “elector” not “voter’.
In Section 234A subsection (1) “is satisfied that a voter is unable to enter the polling place”
ought to be amended to “is satisfied that an elector is unable to enter the polling place”. As at
that time no vote is was being cast.
So Subsection (2) has “voter to vote outside” ought to be “elector to vote outside” and (2) voter
to vote outside” ought to be “elector to vote outside” . This, while subsection (2)(b) is correct to
state “voter votes” as then the actual voting occurs.
I will not go through the entire Act but it ought to be very obvious that if the Act stipulates that
one must follow a certain pattern of voting, then unless this is actually being done, there can be
no issue of a person having voted!

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If a person is deemed to be a voter from the moment having made known his/her claimed
identity, even if this is immediately found to be false, then technically, the person would be
deemed to have voted without even having been given a ballot paper.
Irrespective if a person were or were not to mark in private his/her ballot paper in accordance
with the legal requirements of the relevant Act, one could only refer to a elector being a voter
when actually engaged in casting the vote in the polling booth. A person who is walking to a
pollingbooth but then for whatever reason walks away, can’t be deemed to be a voter having
failed to fulfil the legal requirements of the Act to mark the ballot paper in accordance to the
required system.
Neither can a person be deemed to be a voter, for the purpose of the Act, if the person leaving the
polling booth accidentally drops the ballot paper and the presiding officer (those acting for
him/her) happen to notice that the form is blank! In those circumstances, no vote was taking
place. This, as during counting blank forms are disregarded and not calculated as a vote! Clearly,
it would be inconsistent with the Act if on the one hand a person could be deemed to be a voter
while on the other hand his vote wouldn’t be counted. An informal vote ought to be those where
a person actually expressed a voting intention but for some reason the vote was not correctly
expressed as was required by law to be a valid expressed vote. A blank vote is abstaining from
voting!
It is notable that in section 237 the Act specifically refers to “person” where the elector doesn’t
vote but has someone nominated to vote for him/her.
Clearly, this underlines precisely my argument that instead of “person” one refers to “elector”
where it is the “elector” in other sections, who arrive at the polling station.
While there appear to be many sections dealing with the elector going to the polling station and
what the official shall do, it appears to me that there is no set out that a elector at arrival SHALL
attend to the official. Section 231 refers to the right to receive a ballot paper and Section 232 as
to the duty of the officer to record but no provision appears to exist as to require the elector
actually having to attend to the polling official.
In my case, I attended to the polling station by car. There appears nothing in the legislation, I was
able so far to detect, that I must actually go to the official. Rather, what does occur if I do attend
to the official.
As chapter 221 refers to “Entitled to vote” then this doesn’t make it compulsory to vote as one
can have the “entitlement” and one has a choice to take up the rights conferred upon one selves
or not. An “entitlement’ by a will and testament forexample doesn’t obligate a person having to
accept the entitlement, however, if doing so then the person is bound by the entire provisions of
the will
Meaning, that as an election I do not need to “report’ to the electoral officer” however, if I do so
then I can be held responsible to comply with the legal requirement so set out in the legislation.
As such, the conduct of having to cast a vote in a certain pattern only applies when one actually
accepts the ballot paper of the relevant officer. If one doesn’t report to the officer, then one can
still have attended at the polling station but not having to comply with filling out any ballot
paper.

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Section 245, while referring to “It shall be a duty of every elector to vote at each election.” It
doesn’t actually require a person to report to an official at the polling station. As such, despite the
Act setting out an elaborate system for voting, nothing indicates that not taking the ballot paper
isn’t voting.
Subsection 245(2) for the official “who appeared to have failed to vote at the election” also is
questionable, as this would be more of a guessing game. The official has no way to know which
elector handed in a blank form, and as such failed to cast a vote.
As the transcripts of the JSCEM inquiry indicates in one area 188 incorrect markings existed
where officials had wrongly marked an electors name and those actually having attended were
not shown as such. It would be absurd, that if there is such considerable failure of proper
markings, then electors not guilty of any wrongdoing then are faced to prove their innocence!
It is then “GUILTY until proven innocent.”, this goes against Section 51 for “good
government”, as it conflicts with the Magna Carte Charter provisions.
Section 222 “Where electors may vote” not being “where electors must vote” as such doesn’t
show any legal obligation that if one doesn’t accept a ballot paper one can’t vote elsewhere,
being at home or else, without being in breach of the provisions of the Act. As such a person can
within Section 245 having complied with the “compulsory” to vote by voting at home and then
throwing the vote into the waste bin.
Section 219 related to “Participation by candidates in conduct of election”
“ A candidate shall not in any way take part in the conduct of an election” difficulty is, that the
Candidate is part of the conduct of an election when nominated as a candidate. The candidate
might not be personally involved in the conduct of the polling on the day polling is occurring, but
the election is the election process of which the candidate is the vital link. After all, without any
candidates there is ano polling required or possible.
The usage “in any way” means, that in real terms the candidate can’t even appoint or direct
scrutineers to go to particular polling boots! See also Section 217, where it shows that a
Scrutineer “represents” the candidate.
Yet, the Electoral officer request the candidates to authorise scrutineers etc.
In my view, this section ought to be clear about its intention, that the candidate shall not be
involved in the conduct of the actually polling other then casting his/her vote but may otherwise
be involved in the conduct of the election, being it standing at the appropriate permitted distance
outside a polling booth or having scrutineers representing him/her at the polling place.
In Section 234 the presiding officer actually is required to involve a scrutineer (representing the
candidate) and as such, this clearly involved the scrutineer in the conduct of the election.
The problem is that for many “electors” the usage of the word “election” is a mystery, as despite
it being used in singular form it seems to apply at times to two different polls, being the Senate
and House of Representatives and at other occasions not. The word “Election” is used for the
election process and at other times appears to be used in regard of polling.
If the Act is vague and aloof about what it really means, then how can electors be really aware
what are the real legal requirements. The moment a elector needs to consult a lawyer to have it
Page 404
explained, it means the Act is failing to be for “good government” as unless the citizen can
understand what is legally required from them by any Act, the Act is no more but a failure!
The Parliament has an obligation to express its intention with any legislation in such manner that
is understandable to the very citizens it represent.
Section 198 is also non sensical as it really doesn’t even allow a postal official or consulate to
induce an “elector” to had over a postal ballot paper for purpose of having it send with normal
postal services or with diplomatic post.
Again, the section fails to show appropriate exclusions.
Also, with Section 180(2) if a candidate dies, say on polling day, then Section 245 etc clearly
would be nonsensical, in that a person unknow to the death of a candidate might believe to be
forced to have to vote only to find not having voted for the purpose of this section as the election
is deemed to have failed.
WESTERN AUSTRALIA v. THE COMMONWEALTH ; NEW SOUTH WALES v. THE

COMMONWEALTH ; QUEENSLAND v. THE COMMONWEALTH (1975) 134 CLR 201
66. The proclamation in terms of s. 57 convened a joint sitting of the
members "... at which they may deliberate and shall vote together upon each of
the said proposed laws as last proposed by the House of Representatives". The
authorization or direction to the members was not compulsory. It mistakes the
nature of the Houses of Parliament to suppose that it was. They could not be
required by the Governor-General to deal with each of the laws, or prevented
by him from debating or voting on any other subject. And this Court could not
interfere with their deliberations. (The Bill of Rights, art. 9 stated that
the freedom of speech, and debates or proceedings in Parliament, ought not to
be impeached or questioned in any court or place out of Parliament (1 Wm and
My Sess. 2 c. 2. See Constitution s. 49; Cormack v. Cope (1974) 131 CLR 432
). (at p293)
Aboriginal and Torres Strait Islander Commission Act 1989

108 Voting not compulsory
Voting at Regional Council elections is not compulsory.
143B Voting not compulsory

Voting at TSRA elections is not compulsory.
Aboriginal and Torres Strait Islander Commission Act 1989

An Act to establish an Aboriginal and Torres Strait Islander Commission, a Torres Strait
Regional Authority, an Indigenous Land Corporation and an Aboriginal and Torres Strait
Islander Commercial Development Corporation, and for related purposes
WHEREAS the people of Australia voted overwhelmingly to amend the Constitution so that the
Parliament of Australia would be able to make special laws for peoples of the aboriginal race;
AND WHEREAS the people whose descendants are now known as Aboriginal persons and Torres
Strait Islanders were the inhabitants of Australia before European settlement;
AND WHEREAS they have been progressively dispossessed of their lands and this dispossession
occurred largely without compensation, and successive governments have failed to reach a lasting and
equitable agreement with Aboriginal persons and Torres Strait Islanders concerning the use of their lands;
Page 405
AND WHEREAS it is the intention of the people of Australia to make provision for rectification, by
such measures as are agreed by the Parliament from time to time, including the measures referred to in
this Act, of the consequences of past injustices and to ensure that Aboriginal persons and Torres Strait
Islanders receive that full recognition within the Australian nation to which history, their prior rights and
interests, and their rich and diverse culture, fully entitle them to aspire;
AND WHEREAS it is also the wish of the people of Australia that there be reached with Aboriginal
persons and Torres Strait Islanders a real and lasting reconciliation of these matters;
AND WHEREAS it is the firm objective of the people of Australia that policies be maintained and
developed by the Australian Government that will overcome disadvantages of Aboriginal persons and
Torres Strait Islanders to facilitate the enjoyment of their culture;
AND WHEREAS it is appropriate to further the aforementioned objective in a manner that is
consistent with the aims of self-management and self-sufficiency for Aboriginal persons and Torres Strait
Islanders;
AND WHEREAS it is also appropriate to establish structures to represent Aboriginal persons and
Torres Strait Islanders to ensure maximum participation of Aboriginal persons and Torres Strait Islanders
in the formulation and implementation of programs and to provide them with an effective voice within the
Australian Government;
AND WHEREAS the Parliament seeks to enable Aboriginal persons and Torres Strait Islanders to
increase their economic status, promote their social well-being and improve the provision of community
services;
AND WHEREAS the Australian Government has acted to protect the rights of all of its citizens, and
in particular its indigenous peoples, by recognising international standards for the protection of universal
human rights and fundamental freedoms through:
(a) the ratification of the International Convention on the Elimination of All Forms of Racial
Discrimination and other standard-setting instruments such as the International Covenants on
Economic, Social and Cultural Rights and on Civil and Political Rights; and
(b) the acceptance of the Universal Declaration of Human Rights:
WORLD BOOK (International Deluxe English Edition)

entitle, transitive verb, -tled, -tling.1. to give a claim or right (to); provide with a reason to
ask or get something. Ex. The one who wins is entitled to first prize. A ticket will entitle
you to admission. (SYN) empower, qualify, enable. 2. to give the title of; name. Ex. The
author entitled his book "Treasure Island." The Queen of England is also entitled "Defender
of the Faith." (SYN) denominate, designate. 3. to give or call by an honorary title. Also,
intitle.
The word “entitle” in my view, doesn’t mean one is bound to vote, rather it gives the elector a
choice to do so.
221 Elections at which electors entitled to vote
(1) In the case of a Senate election, an elector shall only be admitted to vote for the election of
Senators for the State or Territory for which he or she is enrolled.
(2) In the case of a House of Representatives election, an elector shall only be admitted to vote
for the election of a member for the Division for which he or she is enrolled.
(3) For the purposes of this section, the electoral Rolls in force at the time of the election shall be
conclusive evidence of the right of each person enrolled thereon (other than a person whose
name has been placed on a Roll in pursuance of a claim made under section 100 and who
will not have attained 18 years of age on the date fixed for the polling in the election) to vote
as an elector, unless a person shows by his or her answers to the questions prescribed by
section 229 that he or she is not entitled to vote.

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I have noticed that when there are two or more compartments attached in a polling booth one can
at times see a voter looking next to the other voter as to how that voter fills in their ballot paper.
I view, that the wording “as to screen the voter from observation”, means that the voter in
totality can’t be observed, at the time of marking a ballot paper. (My wife doesn’t agree with this,
I must admit. She holds just the marking.).
206 Separate voting compartments
Polling booths shall have separate voting compartments, constructed so as to
screen the voters from observation while they are marking their ballot-papers, and
each voting compartment shall be furnished with a pencil for the use of voters.
YOUNG PEOPLE’S Parliamentarian apprenticeship

Deputy Prime Minister Brian Howe (Australian Labour Party Conference on 27 September
1994):
Labor recognises that to be an Australian citizen is not just about the enjoyment of civil and
political rights. Rather, to be a citizen is to be able to fully participate in the life of the
community by sharing the general standard of living and in the quality of life. Being a
citizen implies a social and economic status as well as a civil and political one.....
It is my view that as children from the age of 12 can be tried as adults in capital crimes such as
murder, then we ought to introduce a system that children from the age of 12 can vote for a
representative who will be able to represent their views in the Parliament.
While I do not propose that we select a child of the age of 12 for an 8 year Senator position, I
view that we could facilitate to provide for a year apprenticeship, for both the House of
Representatives and for the Senate. It would mean that each State and Quasi State (Territory)
could have an apprentice (student) politician.
If this were to be provided for 1 of each state of either gender, in the House of Representatives,
and one of each State (Quasi State) in the Senate, then those young adults (a better expression)
could have their own meeting etc. and bring forward legislative proposals that could be
introduced within the House of Representatives and Senate.
Age of apprenticeship is at 15 and so young adults could from that age be chosen.
The system could work on a basis that the schools have their program of “politics’ and a
competition is organised between the schools, say secondary” as to select winners of each
State/Quasi State.
The benefit of this would be that young adults will become more interested in the framework of
politics, and might very well bring us the leaders of tomorrow.
An apprentice could be assigned to a Politician as supervision, albeit the young adult isn’t to do
the dirty work but is to be introduced into the various work of a politician.
I am well aware that it would need a considerable working out of details, such as accommodation
etc, but it is my view that in the long term it is money worth to bring up new politicians in such
educated manner. Even, if many of them do not choose politics to be their future , the learning
process for it all for all schools would be to great advantage.
Page 407
Obviously, the register of those “young people” ought not be mixed up with the normal electoral
as the intention would be to include any “young adult’ regardless of being naturalized or not.
This, so those who are not Australians may be encouraged to become so.
See also the following

Children and the Political Process
Robert Ludbrook[*]
Our democracy is based on the premise that groups of people will stand up for their own
interests and rights. but generally speaking children and young people are not in the
position to do this. Children are a large but uniquely uninfluential sector of the population.
They are particularly powerless and vulnerable, and are generally highly restricted in both
the extent to which they can take decisions about their own lives and the extent to which
they can participate in society's overall decision making processes.Martin Rosenbaum and
Peter Newell Taking Children Seriously (1991)
Politicians, eager to be seen as child-friendly, have often paid lip service to the well-being
of children. But at the end of the day children have usually been let down. In the power
game other interests have been stronger. Children have always been and still are the
victims of hypocrisy. Thomas Hummarberg, Member of UN Committee on the Rights of the
Child
One of the most important rights that should be available to the young is the right to vote.
John Holt Escape from Childhood: The Needs and Rights of Children (1975)
The exclusion of children from voting is part of a broader exclusion of children from
decision-making. Children in all societies are denied rights to make decisions about their
affairs which adults take for granted and consider to be essential to a democratic way of
life. Bob Franklin Votes for Children 198?
The child who is capable of forming his or her own views shall have the right to express
those views freely in all matters affecting the child. Article 12 United Nations Convention
on the Rights of the Child
I have previously in considerable manner referred to citizenship and the fact that the
Commonwealth has no constitutional power to declare citizenship.
Regardless what might be held being applicable as to the Commonwealth entering into treaties, it
can’t in any way be used as to circumvent the restrictions of the Commonwealth constitution in
regard of legislative powers.
I have listed below some references as to EXTERNAL AFFAIRS – FOREIGN AFFAIRS and
TREATIES as to indicate that contrary to the high Court assumption as indicated in the
judgment, that the framers blended external affairs and foreign affairs, the reading of the debates
do not whatsoever support this.
The framers also made clear that albeit originally they had “external affairs and treaties”, they
then deleted “and treaties” for the fact that it was held to be included in “external affairs” and
also that in any event it was only for the Monarch to engage in any “treaties”.

Page 408
No matter how the High Court of Australia might interpret matters upon current views, it can’t
result to give the Commonwealth more legislative powers then it was provided with unless it was
by way of Section 128 of the Commonwealth constitution. Meaning, that the entire argument of
the High Court of Australia in regard of Heather Hill (here he comes again) as to that the States
and the Commonwealth agreed to the Australian Act, which is not worth a razoo!
In general most parliamentarians were lawyers, yet it seems that this has done little to avoid
ongoing confusion and problem in regard of the application of laws etc.
As such, it seems to me that being a lawyer might have certain advantages but also can be more
of a handicap for a person to be Parliamentarian if it means lack of proper consideration of legal
issues.
It is my view, that candidates who end up being successful in entering Parliament, perhaps ought
to be given some crash course in legal issues and in particularly given an appropriate insight in
regard of the intentions of the framers.
Unless those in Federal Parliament understand what the intentions were of the framers, we likely
will end up ongoing having litigation problems that could have been avoided.
Again, the reading of the Debates very clearly provide for the expression of the framers what
they debated and concluded and as such, it might be very productive also if there was ssome
booklet prepared for new Parliamentarians that set out the various issues.
I have for the first time checked Quick a& Garran about the issue of citizenship, and as expected
found that Mr Quick rather then to indicate what the framers didn’t want, he seems, so to say, to
push his own little trolly. As such, Quick & Garran really is no indication as to what truly
reflected the intentions of the framers of the Constitution.
If Parliamentarians have no way of knowing what was the framers intentions, then from start it is
asking for problems.
Yet, if the parliament were to authorise the establishment of a digest, that were to show what
went on during the debates and what the decision were, then likely the “Australian Citizenship
Act 1948” might never have existed as such.
It appears to me that the parliament ongoing neglected to get its own house in order, and yet seek
to make laws for the public.
While I acknowledge that it is a very (time wise) costly affair to research the Debates,
nevertheless, I found it rewarding doing so. At least I have a far better understanding of what
truly the intentions of the framers were then most Parliamentarians might have.
I do not expect Parliamentarians to spend such amount of hours as to digest the records, neither
ought this to be needed if a booklet was made for all Parliamentarians to have.
Even if such a booklet doesn’t cover all matters, at least it would give a reasonable indication to
it all.
One can’t expect a “candidate” to know better then a sitting Member of Parliament, yet it seems
that if I were to compare my limited knowledge with that of Mr John Howard, then likely I am
Page 409
better informed about the intentions of the framers and what their intentions were in regard of
issues such as keeping people in detention then Mr John Howard with his law studies and
experiences in Parliament seems to have.
Clearly, there is a underlining deficiency within the parliament and I view that this will continue
unless there is a drastic change in the mentality of parliamentarians and so their training.
The “Apprenticeship” in itself would likely result that a better informed future young adult will
be able to sit in the Parliament.
They do not need to be lawyers to be in parliament as they can utelise constitutional lawyers for
this. All they need is to have a basic understanding to what is applicable in the parliament.
As I discovered, in the State parliament of Victoria, Mr Russel Savage, a very known

Independent, making known to me that he simply didn’t know what legal implications there were
in regard of passing the Act in 2000 to make unconstitutional orders of the Federal Court (so the
Family Court) to be State Supreme Court orders.
Now, I take it very serious that we have as such a Parliamentarian who doesn’t even seem to
bother to seek advise by a constitutional lawyer what is likely to be applicable.
While this might be a State incident, undoubtly the same applies to Commonwealth Politicians.
I do not accept that one has a Politician just taking a seat in parliament and then hope for the best
this Parliamentarian will do the right thing. I view that there must be a streamline introduction.
As referred to above, the “Apprenticeship” might result to a better and more informed youth!
Even those who do not opt for such apprenticeship still will have the experiences of class room
discussions in regard of this.
I recognise that the constitution doesn’t permit to restrict any candidate not to stand for an
election unless they first have certain experiences, then again that neither is needed if the
schools get involved in making “politics” as a subject in at least secondary education.
FOREIGN AFFAIRS- EXTERNAL AFFAIRS-TREATIES

KOOWARTA V. BJELKE-PETERSEN (1982) 153 CLR 168
COURT
High Court of Australia
Gibbs C.J.(1), Stephen(2), Mason(3), Murphy(4), Aickin(5), Wilson(6)
and Brennan(7) JJ.
41. In Koowarta v. Bjelke-Petersen, I would allow the demurrer. (at p207)
42. In Queensland v. The Commonwealth, I would declare that ss. 9 and 12 of

the Racial Discrimination Act 1975 (Cth), as amended, in so far as those
sections apply within the State of Queensland, are outside the powers of the
Parliament of the Commonwealth and are invalid. (at p207)

Page 410
In my view, for what it is worth, Gibbs CJ was correct, that the external affairs powers couldn’t
extend the powers provided for in Section 51 of the Constitution. Indeed, the framers made clear
that without referendum the commonwealth couldn’t give itself more legislative powers!
The case KOOWARTA V. BJELKE-PETERSEN (1982) 153 CLR 168 was however decided
against Gibbs CJ.
Indicating that the judges really didn’t bother to read the Debates as otherwise they would have
been aware that the framers strictly curtailed Commonwealth legislative powers to be only varied
by way of Section128!
Sexual discrimination, etc.

Section 230 of the Commonwealth Electoral Act 1918 is clearly gender bias and ought to be
amended.
When my wife and I had decided to become married, I realised that my wife having used for
more then 42 years her late husbands surname, it would be unreasonable for her then to change
her surname to that of mine. Indeed, I saw no reason why she should. After all, equality means
that neither gender is submissive to the other.
As such, I offered the idea to my wife that neither of us ought to change our surname but rather
amend it by hyphenating each others surname at the end of our (then) current surnames. It means
that my name was AMENDED from SCHOREL to SCHOREL-HLAVKA and my wife from
HLAVKA to HLAVKA-SCHOREL.
We both kept our original signatures.
Our enrolments for elections therefore was accordingly made as SCHOREL-HLAVKA and
HLAVKA-SCHOREL.
There was a comment by the electoral officer, as was by other Department such as the Road
Traffic Authority) that they do not normally facilitate for a man to change/amend his surname.
I view, this is a gender bias old fashion system that ought to be overhauled.
Again, I do not accept that a woman must alter her name to some name of the husband, which
might very well be written or pronounced in a way that could be undesirable, where as having a
man changing to the wife’s name could avoid problems. Also, the hyphenation would be far
more suitable to many.
Section 230 therefore needs to be amended to have the word “female” removed, so that men also
can use that section without being denied the rights if they change/amend their name by
marriage. As such, also the word “change” ought to be “change or amend” as the hyphenation is
not a change but an amendment to the existing name.
While it might be strange to many that I hyphenated my wife’s late husband’s name. This ought
to make no difference in principle if one hyphenate once wife former husbands name or her
maiden name. Albeit, in this Case I was the Attorney of Mr Hlavka, we became friends and I
became his executor and I dedicated INSPECTOR-RIKATI® and the Secret of the Empire,
Personalized crime/comedy novel on CD edition to him, as well as that I am working on a
book about Mr Hlavka himself.

Page 411
I am aware that for example in the USA, man take on their wife’s surname without further using
their own original surname.
It is therefore essential that all Government Department provide for facilities for this, as well as
that all legislation is amended so that we omit gender bias legislation.
One of the things I encountered while in management, was that men used to complain about
them really being the one discriminated against. This for example that while women wanted the
same level of wages, in the packing room men had to do the heavy work while women only were
allowed up to 5 kilogram containers.
Women have the privacy of using a toilet, where as men have the undesired exposure at urinals,
they find very uncomfortable. Indeed, the security using those facilities is at question, when once
back is turned to those who are entering the facilities and may have sinister intentions.
Likewise, when a woman accidentally, which does happen, enters the male facilities, then she
has the full view of man standing there to relieve themselves.
There is little regard for man equality and neither exist there a “Office of man adviser to the
Prime Minister”, albeit there is an “Office of woman advisor to the Prime Minister”
Whereas there are “Husband bashers” one normally only hear about “Wife bashers.” Indeed, who
went to the local police station to report being assaulted by his wife, ended up being ridiculed by
the police! Subsequently making a complaint to the Chief Commissioner of the Police, they then
finally charged the woman and she pleaded GUILTY to assault. Yet, she got a mere 6 months
probation, without conviction recorded. Actually years later she again got the same, then about
having found to nearly strangle one of her children to death and using even a cricket bat (she
broke in the process) upon another child. Again the “DISCRIMINATION” is appalling, as
incidents involving women are not taking that serious as that involving a man, regardless if the
woman’s conduct was more severe.
The Family court of Australia is a clear example of it, where the Court basically totally neglect
any action against known “perjury” by women. It is known as the “Women’s Court”. Meaning,
that it appears to condone lies, and perjury, and abuse of legal processes, indeed judges
themselves anticipate in this, as do lawyers, whereas if a man accidentally make an error in
evidence, in a witness box, in a date, then the Court uses it as to make it look so serious, as if it is
a hanging offence. The Australian Federal Police likewise have shown that when it comes to
reporting offences, their conduct was that it isn’t likely a woman is going to be imprisoned and
so they are not going to waste their time on an investigation. This, in my view, shows a
considerable bias against men!
We have this connotation that women should be given equal representation in the Parliament.
But, what a sheer nonsense, where time and time again women have been able to become leader
of a political party, and have entered either House of Parliament. Making legislation isn’t going
to advance the course of women, as after all their ability ought to be what it is all about, not
making some “women nursery” of the Parliament, that no matter how inept a women might be,
she needs to be elected, just to balance the gender of politicians.
When I campaigned for children changing rooms to be provided for men also, as many fathers go
shopping with children, I encountered first many criticism. However, the City of Melbourne then
asked Swinbourne college to investigate and report and since there are separate children
changing room facilities, no longer just in women toilet facilities.

Page 412
As such, those who are short sighted today, might find that tomorrow’s future relies upon
equality for both genders!
If Parliament can’t even get its own legislation in order to ensure equality in election processes,
then how can we expect others to do otherwise?
230 Errors not to forfeit vote
No omission in the Roll or in the certified list of voters of any Christian or given
name, or entry of a wrong Christian or given name, or address and no mistake in the
spelling of any surname, shall warrant the rejection at any polling of any claim to vote
if the voter is sufficiently identified in the opinion of the presiding officer, and no
female elector shall be disqualified from voting under the name appearing on the Roll
because her surname has been changed by marriage.
FOI “information” and AEC responsible to Senate time table consideration.

The AEC (by way of Gabrielle Paten, director) of 10-12-2001 letter it was stated that ‘not to
“information” held by an agency.’ This, even so the FOI Act specifically refers to
“information”, and rather indicates that it is for the agency to provide it in document form.
Also, the letter stated, under the heading Paragraph 4;
“For your information, the issuing of the Writs for the Senate is provided for under relevant
State legislation. Such legislative provisions are passed by the various State Parliaments
and are not within the jurisdiction of the AEC.”
It is obviously clear, that when the then Prime Minister Mr John Howard called for an election he
anticipated that this would include the half-Senate-election.
As such, the AEC might not be bound to determine State Senate elections but in view that it was
obvious clear that the half-Senate-election was to occur on the same day as the election for the
House of Representatives, then I view, it was the duty of the AEC to keep that in mind, and
consider this when advising the Prime Minister as to how any time table for an election of the
House of Representatives might not allow sufficient time for an half-Senate election of various
States.
The AEC is responsible for the conduct of Senate elections, (modus operandi)
Hansard 13-9-1897
Mr. MCMILLAN: The principle then is that underlying this proposal the parliament or
the state as a state should have nothing to do with the modus operandi of the elections.
The Hon. I.A. ISAACS: They should have all the power in substance, but the mere
machinery should be in the hands of the federal authorities!
Mr. MCMILLAN: That is what I wanted to understand!

Page 413
As such, I view, that while the Commonwealth doesn’t determine the dates and places of Senate
elections, the AEC nevertheless having to conduct the Senate elections then must take this in
consideration when advising/considering about any House of Representative elections.

(G. H. SCHOREL-HLAVKA)
QUOTE CHAPTER 6
CHAPTER 6
“But, why are you making all this know? What has got Industrial Relation laws to do with
“elections”?”
“INSPECTOR-RIKATI®, I have attempted to set out how in other matters there appears to be a
lot wrong. So, it isn’t just in electoral matters. Once a person appears to accept that there are
problems then they might be more willing to accept that my arguments about unconstitutional
and other unlawful conduct isn’t just something that is an odd one out but rather that it might be
happening too often.
26-3-2002
Moral blackmail: George Brandis
AM - Tuesday, March 26, 2002 8:04

ALAN JONES: And Senator Brandis said yesterday reports on seven of the ten instances
where the Navy intercepted illegal boats, suggested and I quote "repeated patterns of the
abuse of the children" which prompts the question why on earth are we wasting taxpayers'
money on that which was self-evident and about which the overwhelming majority of
Australians supported the stance taken by the Howard Government?
MARK WILLACY: But Labor argues that this inquiry is about a specific incident in
which misinformation was allowed to stand uncorrected during an entire election
campaign. The Opposition would also like to know why the retired Defence Minister,
Peter Reith was called on to do a performance assessment of Department Head, Allan
Hawke.
The plot is thickening, as time passes by. Also, with Phillip Ruddock claiming (as set out below),
that the defence forces wouldn’t send back “unseaworthy” boats, I will address that issue in
considerable details. Howard and Phillip Ruddock are arguing that the democratic processes
must be followed. Well, let see if that really occurred!
As I explained previously, if you ignore, for example, the financial harm that came to Heather
Hill, then who knows soon or later we all face such consequences. After all, once you accept
injustice to occur then where does it stop?
The validity of laws are based upon the provisions of the Commonwealth Constitution and if we
are going to accept breaches of the Commonwealth Constitution, just because it happen to suit

Page 414
us for today, then we face that others might use unconstitutional conduct later and then we have
thrown away our very rights to object.
Take for example the Tampa incident in August 2001. Here we had a ship called the Tampa,
upon request of the Government redirected to save the lives of people who were on a sinking
boat. Then after the Tampa saved those people, then the Australian Government takes the
position that it has nothing to do with Australia and the people ought to be taken to Indonesia.
Now, if it had nothing to do with the Australian Government, then why on earth did the
Australian Government request the Tampa to rescue those people?
If those people were in Indonesian waters, then why would the Australian Government get
involved?
The Federal Court did it self acknowledge that the Tampa rescued the people on request of the
Federal Government of Australia, yet then has taken no notice of this being a critical factor in
the matters.
My view is that the Tampa, acted as an agent for the Australian Government, when acting upon
its request to rescue those people. As such, it got nothing to do with illegal immigrants as simply
they were people who were shipwrecks.
It is regrettable that the Federal Court of Australia never appeared to understand that to allow the
Government of Australia to conduct itself toward shipwrecks in such manner then all other
nations could take the same position against shipwrecks.
The Court seemed to argue the issue about there being refugees etc. In my view, the first and
foremost issue was that they were “shipwrecks”, it is upon that condition their legal position
ought to have been argued. The court itself referred to “rescuees”, yet really, in my view,
consider their rights as such.
When a person comes by some form of transport, being it a sinking boat or by a plane, the fact is
that they come to a country which has the right to determine who comes into its country and
under what conditions. However, when there are refugees/asylum seekers then there are certain
conditions to follow. Below I will set also some complications as to why the Tampa couldn’t sail
with the rescuees (asylum seekers) and the legal and other insurance consequences in regard of
the Captain and the owners of the vessel.
John Howard went on national television on 28-6-2002 about the 30 odd people who escaped
from the WOOMERA Detention centre making clear that, as I understand it, “People should not
take the law into their own hands.”
Well, as later will be exposed, that is precisely what John Howard did to rig the election!
Therefore, the issue then is, if indeed the purported election on 10 November 2001 was
unconstitutional/unlawful and as such, John Howard and neither others were duly and properly
elected, then any conduct taken against people to have them placed in detention centres likewise
must be deemed to have been unlawful. After all, if the purported Government of John Howard is
not a lawful elected Government then likewise anything they did is unlawful.

Page 415
Perhaps, it would be nice to lock up all illegal parliamentarians with the other people whom are
held in the various detention centres and then see how they will get along.
I think that the people held in detention centre would likely volunteer just to stay on, even if
offered an immediate release, just as to show to John Howard and his cronies how grateful they
are for them joining.
Tamee40 provided the following on the noticeboard;
DEFINITION OF "REFUGEE"
Article 1A(2) of the Convention relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or
political opinion, is outside the country of his nationality and is unable or, owing to
such fear, is unwilling to avail himself of
the protection of that country; or who, not having a nationality and being outside the
country of his former habitual residence, is
unable or, owing to such fear, is unwilling to return to it.
END QUOTE CHAPTER 6
LIST OF FURTHER AUTHORITIES & STATUTES RELIED UPON
Neil v Nott (1994) 68 ALJR 509 at 510 (High Court)
Australian Constitution
Foster (1950) S.R. (N.S.W.) 149, at p151 (Lord Denning, speaking on the role of an advocate)
Section 36 of the Act Interpretation Act 1901
Victoria No. 6365 Senators elections Act 1958
Commonwealth Electoral Act 1918
Barwick CJ in QUEENSLAND v. THE COMMONWEALTH (1977) 139 CLR 585

Page 416
Chief Justice in his Boyer lecture Six - The Judiciary
McKenzie v. The Commonwealth of Australia and Others 59 ALJR 191 Gibbs CJ
Associated Dominions Assurance Society Pty Ltd v Balford (1950) 81 CLR 161
PAVLEKOVIC-SMITH v AEC (1993) 115 ALR 641, Dawson J
SYKES v. CLEARY and OTHERS (1992) 176 CLR 77 F.C. 92/046
Bill of Rights 1689
Eastman v The Queen [2000] HCA 29 (25 May 2000)
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Sue v Hill [1999] HCA 30 (23 June 1999)
Woolworths v Crotty (1942) 66 CLR 603 at 618 (per Latham CJ)
Duncan v Queensland (1916) 22 CLR 556, 582 (per Griffith C.J.)
Mason CJ, Dawson, McHugh JJ - LEETH v. THE COMMONWEALTH OF AUSTRALIA

(1992) 174 CLR 455 F.C. 92/022
NEW SOUTH WALES v_ THE COMMONWEALTH ; QUEENSLAND v_ THE

COMMONWEALTH (1975) 134 CLR 201
Coronation Act 1688
Lord Wilberforce reminded the House of Lords in 1997 what were - and are - the 'essential civil
rights' of the British people:
THE QUEEN v_ PEARSON; Ex parte SIPKA (1983) 152 CLR 254

Re: Sidebotham (1880) 14 Ch D 458 James LJ
Padfield v Minister of Agriculture & Fisheries and Food (1968) AC 997

(1968) 1 ALL ER 694 House of Lords - Lord Upjohn and Lord Hodson
Holmes v Angwin, (1906) 4 (Pt 1) CLR 297 at 309. Barton J
Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi [1999]
HCA 27 (17 June 1999)
Uniform Tax \case, 1942 (65CLR 373 at 408)

Page 417
Gleeson CJ, Boyer Lecture1
Macleod Lord Halsbury L.C. quoted (at p 458) the remarks of Parke B. in Jefferys v. Boosey (at
p 926 of HLC (p 725 of ER)):
Mason CJ, WILSON, BRENNAN, DEANE, DAWSON, TOOHEY AND GAUDRON JJ

UNION STEAMSHIP Co. OF AUSTRALIA PTY. LTD. v. KING (1988) 166 CLR 1 F.C.
88/050
Holmes v Angwin, Barton J said[31]:
FABRE v. LEY (1972) 127 CLR 665
Commonwealth Oil Refineries case[55] Isaacs J
BRENNAN CJ, McHUGH, GUMMOW AND KIRBY JJ. In Ha and anor v State of New South Wales
& ors; Walter Hammond & Associates v State of New South Wales & ors Matter No S 45 of
1996, Matter No S 165 of 1996
ALBERT LANGER v THE COMMONWEALTH OF AUSTRALIA AND OTHERS F.C. 96/002
BROWN v. WEST (1990) 169 CLR 195 F.C. 90/007
IN RE WOOD (1988) 167 CLR 145 F.C. 88/018
McClure v Australian Electoral Commission [1999] HCA 31 (24 June 1999)
JAMES ANDREW McGINTY AND OTHERS v THE STATE OF WESTERN AUSTRALIA F.C.
96/001
Marriage of Baines (No. 2) (1981) 7 Fam LR 232 at 237
Dowling v Dowling, Exchequer (Ireland) (1869) 10 ICLR 236
Powell v Trantor (1984) 3 H & C 458 at p461 (159 E.R. 610 at 611)
Crampton v The Queen [2000] HCA 60 (23 November 2000)
Judiciary Act 1903 s45
In Preston Ice and Cool Stores Pty Ltd. v. Hawkings (1955) V.L.R. 89; (1955) Austin Digest 337
Quick & Garran, Paragraph 238 – p660 (re: s52)
Quick & Garran Paragraph 253, pp. 6756,7 (s55)

Page 418
ATTORNEY-GENERAL (VICT.); EX REL. BLACK v. THE COMMONWEALTH (1981) 146
CLR 559
Australian Treaty Series 1987 No 9 DEPARTMENT OF FOREIGN AFFAIRS CANBERRA

Rule 12bis Computation of time limits
Ex Parte Lovell; Re Buckley (1938) 38 S.R. N.S.W. 155 at 158; 55 W.N. 63 Jordan C.J
Grey v Pearson (1857) 6 H.L.C. (per Lord Wensdayle)
Abley v Dale (1850) 20 L.J.C.P. 35 (per Jervis C.J.)
Camden Marquis v Inland Revenue Commissioners (1914) 1 KB 641 (per Latham C.J.)
Powell v Trantor (1984) 3 H & C 458 at p461 (159 E.R. 610 at 611)
Maxwell, Interpretation of Statutes 8th Ed. p2;

Hotel Kingston Ltd. v Federal Commissioner of Taxation (1944) 69 CLR 221; 28 Austin Digest
752
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 445
FORM 69
NOTICE OF A CONSTITUTION MATTER O 73 r 1 High Court Rules
UNDER SECTION 78B of the JUDICIARY ACT 1903

MAGISTRATES COURT AT HEIDELBERG
No. of 2002
GERRIT HENDRIK SCHOREL-HLAVKA Defendant
and
AUSTRALIAN ELECTORAL COMMISSION Plaintiff
NOTICE OF CONSTITUTIONAL MATTER
1. The Defendant GERRIT HENDRIK SCHOREL-HLAVKA gives notice that the

proceedings involves a matter arising under the constitution or involving its interpretation
within the meaning of section 78B of the judiciary Act 1903.
2. That the Defendant objected to the jurisdiction of the Magistrates’ Court at Heidelberg to
hear the matters arising of the proceedings instituted by the applicant in regard of matters
relating to the PURPORTED Federal general election on 10 November 2001.
3. The said Magistrates’ Court adjourned matter, on 16 September 2002, for hearing of the
question of “legal jurisdiction” to be heard on 4 December 2002.
4. The outline of the case at hand and is as follows;

Page 419
(a) The Defendant was born on 7 June 1947 in Rotterdam, The Netherlands of
parents being Dutch nationals and as such, the Defendant by birth was a Dutch
national.
(b) The Defendant became lawfully married to his (then) wife Ingrid Maria Edith
Schorel on 2 February 1969 and subsequently the had a child born 13
December 1969 named Guido Alexander Silvester Sebastien Viggo Schorel.
(c) The Defendant was at that time in the Dutch (conscripted) army serving within
NATO at the (then) Iron curtain in West Germany, and later joined the regular
Dutch army, from which he resigned to migrate to Australia, upon the
invitation of the Australian government to do so.
This affidavit was filed by the applicant GERRIT HENDRIK SCHOREL-HLAVKA
Of: 107 Graham Road, Rosanna East (Viewbank), In the State of Victoria, 3584
Phone number: 03 –9457 7209
(d) The Defendant, his (then) wife and child entered Australia on 7 April 1971 as
“aliens”/”immigrant” all of Dutch nationality, having been provided with “a
visa with Permanent residence” to enter Australia
(e) The Defendant applied naturalization to become an naturalized Australian.
(f) The Defendant naturalized under the Commonwealth of Australia “Australian
Citizenship Act 1948” on 28 March 1994, to take on the Australian
nationality. The ceremony was conducted at 55 King Street, Melbourne at the
Department of Immigration office.
(g) Unbeknown to the Defendant at the time of the naturalization, on 28 January
1898 the framers of the Commonwealth Constitution Bill debated at the
Constitutional convention, as recorded in the Hansard, the issue of alien.
(h) Unbeknown at the time of nominating as a candidate for the Federal election,
the Hansard indicates that the framers required a person to have State
citizenship to obtain Australian citizenship, and so by the time of the 30-11-
2002 election the Defendant discovered he did not appear to be a qualified
elector for not having State citizenship.
Hansard 2-3-1898
Dr. QUICK (Victoria).-I beg to move-
That the following new sub-section be inserted after sub-section (21):-
XXIA. Commonwealth citizenship.
I propose to confer upon the Federal Parliament the power to deal with
the question of Commonwealth citizenship. I have looked through the Bill
very carefully, and I do not see the slightest allusion in it to a federal
citizenship.
And;

Page 420
Dr. QUICK.-If we are to have a citizenship of the Commonwealth higher,
more comprehensive, and nobler than that of the states, I would ask why is it
not implanted in the Constitution? Mr. Barton was not present when I made
my remarks in proposing the clause. I then-anticipated the point he has raised
as to the position we occupy as subjects of the British Empire. I took
occasion to indicate that in creating a federal citizenship, and in defining
the qualifications of that federal citizenship, we were not in any way
interfering with our position as subjects of the British Empire. It would
be beyond the scope of the Constitution to do that. We might be citizens
of a city, citizens of a colony, or citizens of a Commonwealth, but we
would still be, subjects of the Queen. I see therefore nothing
unconstitutional, nothing contrary to our instincts as British subjects, in
proposing to place power in this Constitution to enable the Federal Parliament
to deal with the question of federal citizenship. An objection has been raised
in various quarters-as by the honorable and learned members (Mr. O'Connor
and Mr. Wise)-to the effect that we ought to define federal citizenship in the
Constitution itself. I have considered this matter very carefully, and it has
seemed to me that it would be most difficult and invidious, if not almost
impossible, to frame a satisfactory definition. There is in the Constitution of
the United States of America a cast-iron definition of citizenship, which
has been found to be absolutely unworkable, because, among other
things, it says that a citizen of the United States shall be a natural-born or
naturalized citizen within the jurisdiction of the United States, and it has
been found that that excludes the children of citizens born outside the
limits of this jurisdiction. That shows the danger of attempting
definitions, and although I have placed a proposed clause defining federal
citizenship upon the notice-paper, the subject, seems to me surrounded
with the greatest difficulty, and no doubt the honorable and learned
members (Mr. Wise, Mr. O'Connor, and Mr. Symon) would be the first
to attack any definition, and would be able to perforate it. In my opinion,
it would be undesirable to implant a cast-iron definition of citizenship in
the Constitution, because it would be better to leave the question more
elastic, more open to consideration, and more yielding to the advancing
changes and requirements of the times.
And
Mr. SYMON.-In clause 52 we have given to the Federal Parliament the
power of dealing absolutely with immigration. If we have given that
power, then incidental to that power they will have an exclusive
jurisdiction as to the status and citizenship of people who come into this
country. If, therefore, the Federal Parliament are to have this entire
control of the citizenship of the nation, then they have a right to say who
shall be admitted to that citizenship and who shall be excluded, and they
must also have the power to define the terms of that citizenship.
(Note; Subsequently on 2-3-1898 the convention defeated a bill to inset into
the Commonwealth Constitution legislative powers for the Commonwealth to
define and declare “citizenship”.)
Hansard 2-3-1898
Mr. OCONNOR (New South Wales).-

Page 421
The Federal Parliament could do nothing in the way of defining the
qualification of citizenship or the rights of citizenship beyond the limits of
the Constitution.
Hansard 2-3-1898
Mr. OCONNOR (New South Wales).-
There is no territorial entity coincident with the Commonwealth. Every
part of the Commonwealth territory is part of the state, and it is only by
virtue of his citizenship of a state that any person within the bounds of
the Commonwealth will have any political rights under the Constitution.
Of course, when I speak of a state, I include also any territory occupying
the position of quasi-state, which, of course, stands in exactly the same
position.
And;
Hansard 2-3-1898
Mr. DOBSON.-Does not that create them citizens?
[start page 1751]
Dr. QUICK.-No, it does not in any way define citizenship. It refers to the
people without in any way defining or stating the mode of ascertaining who
are the people. If the word "people" in this earlier section is to be considered
as giving the test of citizenship, then all the people within the jurisdiction of
the Commonwealth of all races, black or white, or aliens, will be considered
members of this new political community. What I want to see inserted in the
Bill is a constitutional definition of citizenship.
And;
Dr. QUICK.-I want to see either a constitutional definition in the Bill or

the power conferred on the Federal Parliament to define what constitutes
citizenship. If that be done, then of course there will be two citizenships
within this United Australia. There will be the citizenship of the state in
which a person resides, the rights and duties of which will be determined
by the laws of the state, and there will be the wider federal citizenship,
the rights and duties and incidence of which will be defined by the
Federal Parliament.
Hansard 2-3-1898
Mr. BARTON (New South Wales).-We have provided in this Constitution

for the exercise of the rights of citizenship, so far as the choice of
representatives is concerned, and we have given various safe-guards to
individual liberty in the Constitution. We have, therefore, given each resident
in the Commonwealth his political rights, so far as the powers of legislation
and administration intrusted to the Commonwealth are concerned. Let us
consider the position. Before the establishment of the Commonwealth, each
subject is the subject of a state. After the Commonwealth is established, every
Page 422
one who acquires political rights-in fact, every one who is a subject in a state,
having certain political rights, has like political rights in the Commonwealth.
The only difference between the position before the institution of the
Commonwealth and afterwards is that, so far as there are additional political
powers given to any subject or citizen, be has the right to exercise these, and
the method of exercising them is defined. So far the right of citizenship, if
there is a right of citizenship under the empire, is defined in the
Constitution. Now, each citizen of a state is, without definition, a citizen
of the Commonwealth if there is such a term as citizenship to be applied
to a subject of the empire. I must admit, after looking at a standard
authority-Stroud's Judicial Dictionary-that I cannot find any definition of
citizenship as applied to a British subject. No such term as citizen or
citizenship is to be found in the long roll of enactments, so far as I can
recollect, that deal with the position of subjects of the United Kingdom,
and I do not think we have been in the habit of using that term under our
own enactments in any of our colonies.
Mr. HIGGINS.-You had it in the Draft Bill.
Mr. BARTON.-Yes; but the term has since disappeared, and it disappeared
owing to objections from members of the Convention. I am inclined to think
that the Convention is right in not applying [start page 1765] the term
"citizens" to subjects residing in the Commonwealth or in the states, but in
leaving them to their ordinary definition as subjects of the Crown. If,
however, we make an amendment of this character, inasmuch as citizens of
the state must be citizens of the Commonwealth by the very terms of the
Constitution, we shall simply be enabling the Commonwealth to deal with
the political rights of the citizens of the states. The one thing follows from
the other. If you once admit that a citizen or subject of the state is a
citizen or subject of the Commonwealth, the power conferred in these
wide terms would enable the Federal Parliament to deal with the political
rights of subjects of the states. I do not think the honorable member
intends to go so far as that, but his amendment is open to that
misconception.
Mr. HOWE.-Trust to the Federal Parliament.
And
Mr. BARTON.-When we confer a right of legislation on the Federal

Parliament we trust them to exercise it with wisdom, but we still keep as the
subject of debate the question of whether a particular legislative right should
be conferred on the Federal Parliament. When you give them the right then
you may trust them to exercise it fully.
Mr. HOWE.-And wisely.
Mr. BARTON.-But inasmuch as we have given to the Commonwealth the

power of regulating the entry of that class of persons, and the power of
regulating them when they have entered, is it not desirable that in that process
Page 423
there shall be left to the Commonwealth power of repressing any such
practices in the name of religion as I have indicated? If it be necessary that
there should be some regulative power left to the Commonwealth, then the
argument that we should leave the matter to the states does not apply, because
we give such a power to the Commonwealth.
Mr. HIGGINS.-Then all crimes should be left to the Commonwealth?
Mr. BARTON.-No;
because you do not give any power
with regard to punishing crime to the Commonwealth,
but you do give power to the Commonwealth to make special laws as to alien
races; and the moment you do that the power of making such laws does not
remain in the hands of the states; and if you place in the hands of the
Commonwealth the power to prevent such practices as I have described you
should not defeat that regulative power of the Commonwealth. I do not think
that that applies at all, however, to any power of regulating the lives and
proceedings of citizens, because we do not give any such power to the
Commonwealth, whilst we do give the Commonwealth power with regard
to alien races; and having given that power, we should take care not to
take away an incident of it which it may be necessary for the
Commonwealth to use by way of regulation.
And;
Mr. BARTON.-If the honorable member's exclamation means more than I

have explained, then the best thing to do is to confide to the Commonwealth
the right of dealing with the lives, liberty, and property of all the persons
residing in the Commonwealth, independently of any law of any state. That is
not intended, but that is what the expression "Trust the Federal Parliament"
would mean unless it was limited by the consideration I have laid down. I am
sure Dr. Quick will see that he is using a word that has not a definition in
English constitutional law, and which is not otherwise defined in this
Constitution. He will be giving to the Commonwealth Parliament a power,
not only of dealing with the rights of citizenship, but of defining those
rights even within the very narrowest limits, so that the citizenship of a
state might be worth nothing; or of extending them in one direction, and
narrowing them in another, so that a subject living in one of the states
would scarcely know whether he was on his head or his heels. Under the
Constitution we give subjects political rights to enable the Parliament to
legislate with regard to the suffrage, and pending that legislation we give the
qualification of electors. It is that qualification of electors which is really the
sum and substance of political liberty, and we have defined that. If we are
going to give the Federal Parliament power to legislate as it pleases with
regard to Commonwealth citizenship, not having defined it, we may
be enabling the Parliament to pass legislation that
would really defeat all the principles inserted
elsewhere in the Constitution, and, in fact, to play ducks and

Page 424
drakes with it. That is not what is meant by the term "Trust the Federal
Parliament."
Mr. HIGGINS.-You give the Federal Parliament power to naturalize.
Mr. BARTON.-Yes; and in doing that we give them power to make

persons subjects of the British Empire. Have we not done enough? We allow
them to naturalize aliens. That is a power which, with the consent of the
Imperial authority, has been carried into legislation by the various
colonies, and, of course, we cannot do less for the Commonwealth than
we have done for the colonies.
(i) That the framers of the Commonwealth Constitution specifically stated in

regard of citizenship and political rights;
Hansard 2-3-1898
Mr. SYMON.-
The political Union is the Commonwealth, the name of our country is
Australia.
And
Every part of the Commonwealth territory is part of the state, and it is only by
virtue of his citizenship of a state that any person within the bounds of the
Commonwealth will have any political rights under the Constitution.
And
You will find in dealing with this question of the definition of citizenship,
that you will have to be very careful in your definition, because it would
be rather too limited a definition to confine it only to persons who are
natural-born or naturalized subjects, unless you are dealing simply with
the political aspect.
And
Mr. OCONNOR.-If they are political rights, they are conferred already by
virtue of a person being an inhabitant of a state entitled to certain political
rights, in such state. The honorable member cannot intend to give a
different right to a citizen politically under the government of the
Commonwealth from the right of a citizen of any state. The rights are
coterminous-coincident-and the political rights of every citizen of the
Commonwealth who is within the Commonwealth arise by virtue of
his being a citizen of a state.
And
Mr. BARTON (New South Wales).-

Page 425
Let us consider the position. Before the establishment of the Commonwealth,
each subject is the subject of a state. After the Commonwealth is established,
every one who acquires political rights-in fact, every one who is a subject in a
state, having certain political rights, has like political rights in the
Commonwealth. The only difference between the position before the
institution of the Commonwealth and afterwards is that, so far as there are
additional political powers given to any subject or citizen, be has the right to
exercise these, and the method of exercising them is defined. So far the right
of citizenship, if there is a right of citizenship under the empire, is defined
in the Constitution. Now, each citizen of a state is, without
definition, a citizen of the Commonwealth if there is
such a term as citizenship to be applied to a subject of
the empire.
(j) That for the Commonwealth to define citizenship as to whom can obtain it,
and in what circumstances, defeats other sections of the Commonwealth
Constitution including
117 Rights of residents in States
A subject of the Queen, resident in any State, shall not be subject
in any other State to any disability or discrimination which would
not be equally applicable to him if he were a subject of the Queen
resident in such other State.
As the Commonwealth then had the power, as example, to define a “citizen”
not being a subject of the Queen, by this not being entitled to the privileges,
rights and duties of this or other sections of the Commonwealth Constitution.
If a particular “alien” would or would not upon naturalization obtain the right
to vote in State elections, etc.
(k) The framers placed beyond doubt that the only way a person obtains
Australian citizenship is AUTOMATICALLY upon obtaining State
citizenship!
(l) The State of Victoria appears to have had at no time any Statute to declare
what is State citizenship
(m) The Defendant was to his knowledge never provided with State citizenship, as
such neither could have obtained Australian citizenship.
(n) The Defendant was at the time of naturalization residing at 10 Anderson
Berriwillock, Victoria, and was since naturalization enrolled on the State
electoral roll.
(o) The Defendant within the provisions of Section 41 of the Commonwealth
Constitution was granted to be an “elector’ in Federal elections.
(p) The Defendant stood as a candidate for the Legislative Council, North
Western electorate, in 1996 as an INDEPENDENT.
(q) The Defendant stood as a candidate for the Legislative Assembly, Swan Hill
electorate, in 1999 as an INDEPENDENT.
(r) The Defendant married on 28 March 2001 and by marriage changed his name
to GERRIT HENDRIK SCHOREL-HLAVKA, by this annexing his wife late
husbands surname, while his wife annexed his name to become Mrs O. A. M.
HLAVKA-SCHOREL.
(s) The Defendant moved to his current residential address on 28 March 2001.
(t) Upon the issue of the writs on 8 October 2001, the Defendant notified in
person the Australian Electoral Commission of the change of details, which
were then used to amend the electoral roll.
Page 426
(u) The Defendant became an INDEPENDENT candidate for the seat of
JAGAJAGA.
(v) The Defendant then became aware that the writs had not been issued
“according to law” and on 20 October 2001 notified the then Care Taking
Prime Minister of Australia Mr John Winston Howard, the Leader of the
opposition Mr Kim Beazley, the Australian Electoral Commission and various
others by e-mail that the writs were defective.
(w) Unbeknown to the Defendant at that time, the Gazette S421 containing the
Proclamation of the Prorogue of the Parliament and the Dissolution of the
House of Representative had not been published in on 8 October 2001, but
had been published first in Canberra on 9 October 2001, and in Victoria not
until 10 October 2001, Western Australia not until 15 October 2001, New
South Wales not until 18 October 2001, Tasmania not until 22 October 2001
and in no State or Territory was ever any Proclamation published on 8
October 2001.
(x) The Defendant sought under protracted FOI Act request information details as
to any delivery details, but other then computer records showing that the
Special Gazette s421 was till at the (private) printers company on 9 October
2001, the Commonwealth claimed to be unable to provide any further
details/information upon the basis they didn’t exist! As such, there is no
evidence to prove what date and time the printers allegedly delivered S421 for
publication and as such, the computer records showing 9 October 2001 are the
only records that can be relied upon as being reliable that at that time the
Special Gazette S421 was still at the printers.
(y) That the Defendant holds that for the failure to publish the Proclamation on 8
October 2001, all writs for the general election were ULTRA VIRES, in that
they were issue before any vacant seats existed and in breach of the
Commonwealth Constitution, which requires that the proclamation be
published prior to any writs being issued. As well as that each and every writ
issued was defective for failing to comply with the relevant legislation
concerning the time table set out in each legislation that was applicable for
each particular writ.
(z) That albeit the Act Interpretation Act 1901 does refer to that the Court shall
take notice of the date of the “Gazette” of the “Government Printers”, in this
case the Gazette was not printed by the Government Printers, and neither had
any such reference on it, as such the Act Interpretation act 1901 didn’t apply.
(aa) The Defendant instituted legal proceedings in the Federal Court of Australia
as to seek an injunction, however matters were not heard upon the merits of
the case, as Marshall J held that the matters was one to challenge the election
which fell within Section 353(1) using the wording “and not otherwise” of the
Commonwealth Electoral Act 1918, not within Section 383 of the said Act
and as such dismissed the matter with cost.
(bb) The Defendant appealed that decision on 22 November 2001 as M114 of 2001
and this matter is still outstanding. The Defendant argues that “and not
otherwise” was incorrectly interpreted, an error of law, in that the High Court
of Australia in Sue v Hill set out the true meaning of the wording, and also
that as the Defendant contested the validity of all writs then the Court of
Disputed Returns lacks any legal jurisdiction to hear such matter. Further, that
the issue of “injunction” against the “Australian Electoral Commission” was
within the jurisdiction of the Federal Court of Australia where the case was
that the AEC was publishing ongoing false and misleading information and by
Page 427
this caused to misled the public, the Government and the Commonwealth.
Also, that the AEC could not excuse itself to rely upon writs that were issued
upon their own incorrect advice. The writs for the House of Representatives
had been actually prepared by the AEC for the Governor-General.
(cc) The Defendant refused to exercise his (purported) rights to vote in the Federal
election, nor appears there be any legal requirement within the Australian
Electoral Act 1918 that a person must attend to a polling booth. An elector is
given an opportunity to elect to vote by way of absentee vote, or otherwise but
no distinct requirement appears to exist that one must do either one or the
other.
(dd) The Federal General election existed of two different elections, being one for
the half-Senate and one for the House of Representatives.
(ee) The Act requires that the Commission, or the person acting on its behalf shall
show that the ballot box is empty. The Act doesn’t state that this must only
occur at the commence of the polling day or at the commencement of each day
the AEC allows people to vote in the preceding days. As such, the defendant
takes the view that failure any specific set out the officer in charge must show
the ballot box to be empty prior to each voter depositing a vote. This, as the
Statute is silent otherwise.
(ff) That the Defendant and his wife attended to the nearest polling booth on
Saturday 10 November 2001 and his wife Mrs O. A. M. HLAVKA-
SCHOREL then attended into the polling booth and upon her return made
known that the presiding officer (so his staff) had only once marked of her
name and then issued both the ballot paper for the Senate and the House of
Representatives.
(gg) The Defendant holds that this conduct is unconstitutional, this as this forces a
person to vote for both polls at the same time, and denied the “elector” his/her
right to vote for different polls at different polling booths. The AEC by this
unduly obstruct the right of the elector to vote at his/her choice at whatever
polling booth within the state of Victoria for the Senate at any day the
“elector” wishes to do so.
(hh) That the Commonwealth Electoral Act 1918 doesn’t stipulate that an
“elector” has no right to vote for the Senate at a different day and polling
booth then for the house of Representatives, and as such , the AEC unlawfully
requires a person to cast a vote, not within the powers of the AEC.
(ii) The AEC also prevented “electors” (in various States” to become Nominated
candidates, by closing the nominations as per writs that were incorrectly
issued and as such, in Victoria denied Mrs Heidi Holz to become a nominated
candidate, even so by State of Victoria legislative provisions Mrs Heidi Holz
had another 48 House to nominate.
(jj) The Commonwealth Electoral Act 1918 provides for an “electoral roll” for
the Commonwealth, this even so by S41 of the Commonwealth Constitution
it is the State electoral roll that holds a person to be an elector within S41.
(kk) The ACE had caused to print and distribute to Candidates “Candidate
booklets” which showed incorrect election timetables as to State legislative
provisions in regard of Senate elections.
(ll) The ACE had caused to print and distribute to Candidates “Candidate
booklets” which showed incorrect election timetables as to Commonwealth
legislative provisions in regard of House of Representatives elections.
(mm) The AEC had published the Pocket handbook, which included the results of
the 1998 federal election, which listed the various State legislations in regard
Page 428
to State elections of its Houses of Parliament, however the AEC purported this
to be the Senate legislation of the State governing Federal elections.
(nn) That for all purposes, the Proclamation signed by the Governor-General on 5
October 2001 didn’t become effective in Canberra until 9 October 2001 when
it become first published.
(oo) That the issue of writs for the States are issued by the Governors of each State
and as such, as a State legislative issue. The writs for the States, as such, could
not be issued, unless first the Proclamation of the Governor-General was
published in that State. And, this never occurred until 10 October 2001 in the
State of Victoria!
(pp) Section 41 of the Commonwealth Constitution requires that a person to be
eligible to be an elector in a Federal election must be entitled to be an elector
for the “numerous” Houses of the State Parliament. The right of being an
elector for the Commonwealth, is upon the condition that such right of being
an elector for the numerous Houses is maintained.
(qq) Queensland abolished its Upper House, as such no elector of the State of
Queensland can be deemed to be qualified to be an elector, as such neither
have any candidates or become a member of parliament in the Federal
Parliament.
(rr) The framers of the Constitution also made clear that the Territories could have
representatives in the Senate but could not vote. They were deemed States in
transit (Quasi States) but specifically failed the right to vote in the Senate.
While the High Court of Australia in the 1975 case ruled otherwise, this is an
error in interpretation of the intention of the framers! This, as the framers
specifically stated that the Senators of a Territory were representatives who
had no right to vote.
(ss) That the framers of the Commonwealth Constitution rejected Dr Quick (of
Quick & Garran) submission to give the Federal Parliament constitutional
powers to define or otherwise determine “Australian citizenship”.
(tt) That the Victorian constitution requires that a person to be eligible to be an
elector, candidate or Member of Parliament must be an Australian citizen as
defined in the Australian Citizenship Act 1948. As such, referring to an Act
that is ULTRA VIRES in regard to any definition of citizenship!
(uu) That neither the Defendant or other person who had not obtained State
citizenship could obtain Australian citizenship and for this disqualified from
being an elector, candidate or member of Parliament for State elections.
(vv) That where the Defendants and others failing to be qualified to be an elector
then the incorrect listing as an elector is ULTRA VIRES in regard of any
person listed on the elector rolls without actually having obtained State
citizenship.
(ww) That the Defendant and any person is disqualified from being an elector for
State elections, then also is disqualified by Section 41 to be an elector in
Federal elections.
(xx) That the Defendant understand that the same lack of qualifications has
occurred in most other states.
(yy) That as such, most electors who voted in the Federal general election appears
not to have been duly qualified for failure to be legitimate entitled State
voters.
(zz) That by way of 19 November 2002 the Attorney General, through the
Department of Justice, provided that; “As explained in my previous letter,
citizenship is a matter for the commonwealth, not the States.” And “You
Page 429
believe that you must be made a citizen of the State of Victoria. That is
incorrect”. And “You believe that you must be made a citizen of the State
of Victoria. That is not correct.”
(aaa) That it is clear that Victoria has no Statute to define and declare State
citizenship and neither that any person is granted State citizenship and for this
no person, including myself, obtained either Australian citizenship.
(bbb) That albeit it is within the powers Section 51 (xxxvii) of the Commonwealth
Constitution of a State to “adapt” any Federal law, and upon this adaptation
the Federal law become the law governing this adoption and the State lacks
any legislative powers then to alter or amend it or otherwise dispose of it, the
fact that the Commonwealth provided for the definition of “citizen” in an
unconstitutional manner, the State’s in effect adapted a Commonwealth law
that was ULTRA VIRES for so far it dealt with “citizenship” as it was beyond
the legislative powers of the Commonwealth to define this.
(ccc) That, where the State of Victoria provides in its constitution that a person must
have “Australian citizenship” but didn’t provide the very mechanism of
Statute to provide State citizenship, then no person can obtain Australian
citizenship.
(ddd) That where the Australian Citizenship Act 1948 for so far it purports to deal
with “citizenship” is declared ULTRA VIRES, then this releases the States to
this Federal law.
(eee) That by the State of Victoria, and other States having made the legal
requirements that an elector must be an Australian citizen, then this condition
must be complied with, irrespective if due to the nature of omitting State
citizenship legislation this can’t be obtained.
(fff) The Constitution of Victoria, albeit it adopting the Australian Citizenship Act
1948 in regard of Australian citizenship, in itself is not granting any State
citizenship to any person, even if the Australian Citizenship Act 1948 were to
be held constitutional valid (this is not conceded by the Defendant) for the fact
that the political rights of a State citizen is within the borders of the State and
can’t be made dependent of some Commonwealth law that was not part of
State law.
(ggg) That there appear to be no Section 128 Commonwealth Constitution
referendum that has approved for the Commonwealth to exercise further
and/or additional legislative powers as to define “citizenship” and/or
otherwise grant this to any person, for this, as the time of the enactment of the
Australian Citizenship Act 1948 in for so far it was referring to “citizenship”
it is and remained ULTRA VIRES, and any adaptation of this ULTRA VIRES
section doesn’t make the Act constitutional valid.
(hhh) Commonwealth Constitution 41 Right of electors of States
No adult person who has or acquires a right to vote at elections for
the more numerous House of the Parliament of a State shall, while
the right continues, be prevented by any law of the Commonwealth
from voting at elections for either House of the Parliament of the
Commonwealth.
As such, a person who is enrolled for State elections as an elector, upon that
basis, irrespective if or if not enrolled on any electoral roll of the
commonwealth, can’t be prevented from voting for any Federal election.
There is no need to have Commonwealth enrolment as the State enrolment is
what qualifies an State elector to vote for Commonwealth elections.

Page 430
The legal requirements by the Commonwealth that unless one enroll with the
Commonwealth one cannot vote in a federal election is therefore
unconstitutional. The Commonwealth has no constitutional powers to
legislate such disability, as such any legislation to impose any disability is
ULTRA VIRES!
(iii) That the Commonwealth refusing Australians to vote in Commonwealth
elections for being abroad, without registering, albeit still being entitled to
vote in State elections, is unconstitutional and so ULTRA VIRES.
(jjj) That within the provisions of the Commonwealth Constitution, there is no
duty for any elector having to vote, it is rather an elective rights to become an
elector, however, the way the system is implemented is that a person who only
enrols for State elections is then by the VEC passed on to the AEC, without
any consent of an elector, and by this forced to vote for a Federal election.
(kkk) That the Commonwealth makes it compulsory for electors to vote, which
appears to be for no other reason but because of the “payment per vote” to
candidates. This causes an unfair election campaign of major political parties
versus independents who do not have such form of payment.
(lll) That I object to having my vote used as “payment per vote”, for that also
refuse to vote.
(mmm)That the various unconstitutional issues resulted to a product of purported 10
November 2001 elections which were not FAIR AND PROPER
ELECTIONS.
(nnn) The proceedings before the High Court of Australia as M114 of 2001 has not
been disposed of.
5. The Magistrates’ Court only can “INTERPRETE”, and ENFORCE LAWS of the
COMMONWEALTH OF AUSTRALIA, as governed by the Commonwealth
Constitution and by this interpreting matters as set out by the recorded intentions of the
Constitutional Conventions held in 1891, 1897 and 1898 for so far this is within its legal
jurisdiction and power, and otherwise refer the matter for a CASE STATED to the
HIGH COURT OF AUSTRALIA for its determination of the true interpretation of the
Commonwealth Constitution, in particularly where the Commonwealth Constitution is
silent of any term of “citizenship” and as such the Commonwealth appears to have no
legislative powers if it is not stated in the Commonwealth Constitution!
6. That a Form 69 under Section 78 of the Judiciary Act was forwarded to all Attorney
Generals of each State and Territory and of the Commonwealth about this.
7. The Defendant relies upon HCA 27 of 1999 the HIGH COURT OF AUSTRALIA (at
79) stated,
“The orders made in Gould v Brown have no constitutional affect. For constitutional purposes,
they are a nullity. No doctrine of res judicata or issue estoppel can prevail against the constitution.
No Gould is entitled to disregard the orders made in Gould v Brown.”
As such, the Defendant applies the same to any “enrolment with the commonwealth”
being unconstitutional, as well as the manner in which the purported 10 November 2001
elections were held and the Defendant was under no constitutional requirement to comply
with some unconstitutional conducted election making a farce of the democratic
processes and no more but support a tyrannical conduct.

Page 431
8. That likewise I have found the same NEGLICENCE of the Australian electoral
commission to deal with the matter appropriately and having engaged Mr Peter Hanks
QC to deceive the Federal Court of Australia and to make false and misleading statements
as well as to conceal from the Court relevant details and by this perveting the course of
justice and causing a miscarriage of justice, underlines that this matter is one that could
not proceed unless the true constitutional provisions are appropriately determined.
9. That the Defendant in October 2002 published his book on CD titled;

Dictatorship & deaths by stealth. Preliminary book edition on CD.
This book sets out in extensive details many issues regarding “citizenship” and the lack of
legislative powers by the commonwealth to define, declare and/or grant any citizenship!
It also contains references in extensive manner of E Barton (Australia’s first Prime
Minister and later High Court Judge) making clear, that if it is not stated in the
Constitution then the Commonwealth has no legislative powers.
10. That refer to the following statute’s
CONSTITUTION ACT 1975

- SECT 48
Qualification of electors for the Council and the Assembly
48. Qualification of electors for the Council and the Assembly
(1) Subject to this Act, a person who-
(a) is-
(i) an Australian citizen; or
(ii) a person (other than an Australian citizen) who would, if the relevant citizenship law
had continued in force, be a British subject within the meaning of that relevant citizenship
law and whose name was, at any time within the three months immediately before 26
January 1984, enrolled on-
(A) an electoral roll for an electoral district of the Assembly; or
(B) an electoral roll maintained under any one of the Commonwealth Acts known as the
Commonwealth Electoral Act 1918, the Australian Capital Territory Representation (House
of Representatives) Act 1973 and the Northern Territory Representation Act 1922; and
(b) is of the full age of eighteen years-
shall be entitled to enrol as an elector for the Council and the Assembly.
(2) A person who-

Page 432
(a) has been convicted of treason under the law of Victoria or treason or
treachery under the law of the Commonwealth or a State or Territory of the Commonwealth
and has not been pardoned;
(b) has been convicted and is under sentence for an offence

punishable under the law of Victoria or of the Commonwealth or of a State
or Territory of the Commonwealth by imprisonment for five years or
longer;
(c) is-
(i) the holder of a temporary entry permit for the purposes of the Commonwealth Act
known as the Migration Act 1958; or
(ii) a prohibited immigrant under that Act; or
(d) by reason of being of unsound mind, is incapable of understanding the nature

and significance of enrolment and voting-
is not entitled to have the person's name placed on or retained on a roll of electors for the
Council or Assembly.
(2A) An elector who has changed his or her name under Part 4 of the Births, Deaths and
Marriages Registration Act 1996 is not by reason only of that change of name disqualified
from voting under the name appearing on the roll.
(3) Any entitlement to enrolment shall be subject to compliance with any law relating to
enrolment for and voting at elections for the Council or Assembly.
(4) Subject to this section, the Parliament may make such laws as it deems necessary or
expedient for or with respect to enrolment for and voting at elections for the Council or
Assembly.
(5) In sub-section (1), "relevant citizenship law" means the Australian Citizenship Act
1948 of the Commonwealth as amended and in force immediately before the day fixed by
Proclamation for the purposes of section 2(2) of the Australian Citizenship Amendment Act
1984 of the Commonwealth and the regulations in force immediately before that day under
the Australian Citizenship Act 1948 as so amended and in force.
Electoral Act 2002

Act No. 23/2002
Division 1—Entitlement to Vote

87. Voting at elections
(1) A person is entitled to vote in an election in accordance with this Act if the
person—
(a) is qualified to enrol as an elector under the Constitution Act 1975; and
(b) is enrolled as an elector under Part 3 of this Act; and
(c) in the case of an elector enrolled under section 22(1), is enrolled in respect of
the address of the person's principal place of residence or the address of the
Page 433
place that was the person's principal place of residence during the period of 3
months immediately before election day.
(2) An elector—
(a) whose name has been placed on the register under section 22(5); and
(b) who has not attained 18 years of age on election day—
is not entitled to vote at the election.
(3) An elector must vote at every election for which the elector is entitled to vote.
(4) An elector may vote—
(a) on election day at an election day voting centre; or
(b) in accordance with any other manner provided under this Part, if the elector is
entitled to use that manner of voting.
Division 1-Entitlement to enrolment
THE CONSTITUTION ACT AMENDMENT ACT 1958

- SECT 50
Entitlement to enrolment of electors for Assembly and Council
50. Entitlement to enrolment of electors for Assembly and Council
(1) A person who is qualified to enrol as an elector for the Assembly and Council and
has resided at an address in a district for at least one month immediately preceding the date of the
person's claim for enrolment as an elector is entitled in respect of residence at that address in that
district-
(a) to enrol as an elector for the Assembly and Council on the roll for that district
and corresponding province; and
(b) when enrolled and so long as the person continues to reside at that address in
that district to vote at an election for the district or the corresponding province.
(2) An elector who has changed residence to another address within the same district is
not deemed by reason only of the change of residence to be dispossessed of the qualification in
respect of which the elector is enrolled.
(3) A woman is not by reason only that her surname has been changed by marriage
disqualified from voting under the name appearing on the roll.
(4) A person who is serving a sentence of imprisonment or detention imposed by a court

upon a conviction for an offence is deemed to reside at the address at which he or she resided at
the time of his or her conviction.

- SECT 51
Eligible overseas electors
51. Eligible overseas electors
(1) An elector-
Page 434
(a) whose name appears on the roll for a district; and
(b) who intends to cease to reside in Australia and then, not later than 6 years
after the day on which the elector so ceases, to resume residing in Australia at the address in
respect of which the elector is enrolled or elsewhere; and
(c) whose name appears on the electoral roll maintained under the
Commonwealth Electoral Act 1918 for a Commonwealth subdivision and that roll is annotated to
indicate that the elector is an eligible overseas elector under section 94 of the Commonwealth
Electoral Act 1918-
is entitled, whilst the elector's name continues to be included and annotated on the
Commonwealth roll referred to in paragraph (c) to-
(d) have the elector's name retained on the roll for the district and province
corresponding with the Commonwealth subdivision referred to in paragraph (c) with an
annotation to indicate that the elector is an eligible overseas elector; and
(e) vote as an elector for that district and corresponding province.
(2) A person-
(a) who is the spouse or child of an elector who is an eligible overseas elector by
virtue of sub-section (1) in relation to a district; and
(b) who is living at a place outside Australia so as to be with or near the eligible
overseas elector; and
(c) who had not attained the age of 18 years when the person last ceased to reside
in Australia; and
(d) whose name is not, and has not been, on a roll of electors for the Assembly
and Council; and
(e) who is not entitled to be enrolled under section 50(1) but would be so entitled
if the person resided in a district; and
(f) who intends to resume residing in Australia not later than 6 years after the day
on which the person attained 18 years of age; and
(g) whose name has been added to an electoral roll maintained under the
Commonwealth Electoral Act 1918 for a Commonwealth subdivision and that roll is annotated to
indicate that the elector is an eligible overseas elector under section 95 of the Commonwealth
Electoral Act 1918-
is to be enrolled for the district and province corresponding with the Commonwealth subdivision
referred to in paragraph (g) for which the eligible overseas elector is enrolled with an annotation
to indicate that the person is an eligible overseas elector.

Page 435
(3) Whilst the person's name continues to be included and annotated on the
Commonwealth roll referred to in sub-section (2)(g), the person is entitled to-
(a) have the person's name retained on the roll for the district and corresponding
province; and
(b) vote as an elector for that district and corresponding province.
(4) A person may apply to the electoral registrar for enrolment as an elector for the
Assembly and Council for a district and corresponding province if, at the time of making the
application-
(a) the person has ceased to reside in Australia for reasons relating to the person's
career or employment or for reasons relating to the career or employment of the person's spouse;
and
(b) the person is not enrolled; and
(c) the person is not qualified for enrolment, but would be so qualified if he or
she resided at an address in a district and had done so for at least a month; and
(d) the person intends to resume residing in Australia not later than 6 years after
he or she ceased to reside in Australia.
(5) The application must be-
(a) in writing; and
(b) made within 2 years of the day on which the person ceased to reside in
Australia.
(6) If the electoral registrar grants the application, the electoral registrar must cause the
person's name to be added to the roll-
(a) for the district and corresponding province for which the person last had an
entitlement to be enrolled; or
(b) if the person has never had such an entitlement, for a district and
corresponding province for which any of the person's next of kin is enrolled; or
(c) if neither paragraph (a) nor (b) applies, for the district and corresponding
province in which the person was born; or
(d) if none of paragraphs (a), (b) and (c) applies, the district and corresponding
province with which the person has closest connection.
(7) If-
(a) the application was received by the electoral registrar after 6 p.m. on the day
of the close of the rolls of an election to be held in a district or province; and
(b) the application relates to that district and corresponding province-

Page 436
the person's name must not be added to the roll for the district and corresponding province until
after the close of the poll for that election.
(8) The electoral registrar must notify the person in writing-
(a) of a decision to grant or refuse the application; or
(b) of the electoral registrar's opinion that the application cannot be proceeded
with because of sub-section (7).
(9) If the application is granted, the elector is entitled to vote at an election for the district
or corresponding province for which the elector is enrolled under sub-section (6) while the
elector continues to be so enrolled.
(10) In this section-
"child" includes an ex-nuptial child;
"spouse", in relation to a person (in this interpretation referred to as the relevant person)
includes a person who, although not legally married to the relevant person, lives with the relevant
person as the spouse of the relevant person on a permanent and bona fide domestic basis.

- SECT 52
Itinerant electors
52. Itinerant electors
(1) A person-
(a) who is in Australia but does not reside in any district; and
(b) who is not entitled to have the person's name placed or retained on the roll for
any district by reason only that the person does not reside at any address in any district; and
(c) whose name has been added to an electoral roll maintained under the
Commonwealth Electoral Act 1918 for the Commonwealth subdivision with which the person
has established a connection under section 96 of that Act and the roll maintained under that Act
is annotated to indicate that the elector is an itinerant elector under section 96 of that Act-
is entitled to have the person's name added to the roll for the district and province corresponding
with the Commonwealth subdivision referred to in paragraph (c) with which the person has the
connection with an annotation to indicate that the elector is an itinerant elector.
(2) Whilst the person's name continues to be included and annotated on the
Commonwealth roll referred to in sub-section (1)(c), the person is entitled to-
(a) have the person's name retained on the roll for that district and corresponding
province; and

Page 437
(b) vote as an elector for that district and province.

- SECT 53
Entitlement of provisional electors
53. Entitlement of provisional electors
(1) An elector-
(a) whose name has been placed on the roll in pursuance of a claim under section
63; and
(b) who has not attained 18 years of age on the date fixed for the polling in an
election-
is not entitled to vote at that election.
(2) Notwithstanding section 63 or any enrolment made in pursuance of a claim made

under that section, for the purposes of an election under this Act, a person who has not attained
18 years of age on the date fixed for polling in that election is not to be-
(a) entitled to be enrolled on a roll; or
(b) enrolled on a roll.

- SECT 54
Savings provision
54. Savings provision
Any person who is entitled to be enrolled as an elector in respect of residence in a subdivision

under section 103 of the Act as in force immediately before the commencement of section 6 of
The Constitution Act Amendment (Amendment) Act 1999, continues to be entitled to be enrolled
in respect of the relevant district and corresponding province.
LOCAL GOVERNMENT ACT 1989
11. Persons entitled to be enrolled
(1) A person who on the entitlement date would be an elector in respect of an address in
a ward if a roll of electors for the Legislative Assembly was prepared, is entitled without
application to be enrolled on the voters' roll in respect of that address.
(2) A person who on the entitlement date-
(a) is not a person referred to in sub-section (1); and
(b) is not less than 18 years of age; and

Page 438
(c) is the owner of any rateable land in a ward whether solely or jointly with any
other person or persons; and
(d) is not a resident of the ward in which that rateable land is located-
is entitled without application to be enrolled on the voters' roll in respect of that rateable land.
(3) For the purposes of sub-section (2) only 2 joint owners are entitled to be enrolled in
respect of any 1 property which is rateable land.
(4) A person who on the entitlement date-
(a) is not a person referred to in sub-section (1) or (2); and
(c) is the occupier of any rateable land, whether solely or jointly with any other
person or persons; and
(d) is not a resident of the ward in which that rateable land is located-
is entitled without application to be enrolled on the voters' roll in respect of that rateable land.
(5) For the purposes of sub-section (4)-
(a) in relation to rateable land any part of which is separately occupied, only 2
joint occupiers are entitled to be enrolled in respect of each part of the rateable land assessed as a
separate occupancy in accordance with section 158A; and
(b) in relation to any other rateable land, only 2 joint occupiers are entitled to be
enrolled in respect of that rateable land.
LOCAL GOVERNMENT ACT 1989

- SECT 12
Persons entitled to apply to be enrolled
12. Persons entitled to apply to be enrolled
A person who on the entitlement date-
(a) is not a person referred to in section 11; and
(c) is an owner or occupier of any rateable land in a ward-
is entitled to apply to be enrolled on the voters' roll in respect of that rateable land.

Page 439
As for reference of legislative powers within Section 51(xxxvii) of the Commonwealth
Constitution, only valid if there is a successful referendum, to accept this reference of legislative
powers of a State to the Commonwealth!
Hansard 2-3-1898
Mr. BARTON (New South Wales).-
Consequently, if it were proposed to add a legislative power of the kind suggested by
Mr. Holder, I take it that as Chapter VIII. provides first for the passage of the
proposed law by an absolute majority, and then for a referendum, the law would
have no effect unless the majorities of the several states agreed to it.
11. That any reference of legislative powers within the provisions of Section 51(xxxvii) of
the commonwealth constitution can only be valid provided this reference of legislative
powers by any State has been carried by way of Section 128 Commonwealth
Constitution referendum. This, as the Hansard shows also considerable debate by the
framers that the people must approve of this! As a reference of legislative powers causes
cost to all Commonwealth taxpayers, it is obvious that for this reason such referendum is
required. Albeit various States have provided for purported “reference of legislative
powers” non of them were ever submitted and/or approved by way of referendum and as
such remain beyond the legislative powers of the Commonwealth.
12. That the legislative powers of the Commonwealth doesn’t rely upon any or all States
adopting the legislation afterwards, but relies upon such Commonwealth legislation at the
time of legislation being enacted to be within the constitution powers of the
Commonwealth Constitution. As not only was there no reference of “citizenship” in the
Commonwealth constitution, but the framers removed any reference from the original
DRAFT 1891 Commonwealth Constitution Bill and in particularly defeated the
submission of Dr Quick to inset a provision top give the Commonwealth legislative
powers, then irrespective what the High Court of Australia may have claimed in the past,
the Australian Citizenship Act 1948 is and remains UNCONSTITUTION and ULTRA
VIRES for so far it purports to deal with citizenship. Likewise so the Migration Act
references to “non-citizen” and/or “non-citizens” remains for that references
unconstitutional and those parts are for this ULTRA VIRES.
13. The Defendant also holds that “PARENT PATRICIA” doesn’t lie with a Court of
Statute, and as such the High Court of Australia has no such position and neither can the
Commonwealth upon its own provides such position to any Minister of the Crown.
THE QUEEN v. DIRECTOR-GENERAL OF SOCIAL WELFARE (VICT.); Ex parte

HENRY (1975) 133 CLR 369
It is clear that the order nisi

for habeas corpus should be discharged unless s. 6 of the Immigration
(Guardianship of Children) Act 1946-1973 (Cth) ("the Act") is invalid as being
beyond the legislative power of the Parliament. (at p371)
Only the Supreme Courts of the Original States can grant “PARENT PATRICIA” to any
person (Minister or otherwise) and any attempt by the Commonwealth to do so in regard
of any person not being a child of a marriage (as the framers specifically limited this to a
child of a marriage and only in relation thereto of an application for “divorce”, then the
Commonwealth lacks any legislative powers to deal with the “liberties” of any alien. The
Page 440
commonwealth parliament only could regulate that a child arriving as an alien is to be
placed in care of a State authority, but no further than that.
Hansard 2-3-1898
Mr. BARTON
The administration of [start page 1766] the laws regarding property and
personal liberty is still left with the states. We do not propose to interfere with
them in this Constitution. We leave that amongst the reserved powers of the
states, and, therefore, having done nothing to make insecure the rights of
property and the rights of liberty which at present exist in the states,
For this I hold that THE QUEEN v. DIRECTOR-GENERAL OF SOCIAL WELFARE

(VICT.); Ex parte HENRY (1975) 133 CLR 369 was wrongly decided.
14. The framers of the constitution made also clear that once a “alien” had entered Australia
then the Commonwealth, albeit able to regulate “aliens” could not interfere with their
State rights. Albeit, the High Court of Australia is on record, as I understand it, that “once
an alien always and alien.” This is untrue. Once a citizen obtains State citizenship or had
paid his/her poll tax then the “alien” became a citizens, and no longer was an “alien” for
the purpose of the Commonwealth Constitution. However, Still was referred to as China
man, Afghan or else. As set out in my book, the framers made clear that other then
certain disabilities that the Commonwealth were to place upon an “alien” to enter
Australia (such as, say, must be in Australia for 5 years before being able to obtain
naturalization, the Commonwealth had no power to oust any “alien” in defiance of any
State rights obtained.
15. In POCHI v. MACPHEE (1982) 151 CLR 101 the following was stated;
2. The plaintiff, who was born in Italy in 1939, came to Australia in 1959
with the intention of making Australia his permanent home, and has since that
time resided in Australia (apart from one short overseas trip), has
continuously had the intention to remain in Australia as his permanent home
and has been totally absorbed into the Australian community. On 11 September
1974 the plaintiff applied for a grant of a certificate of Australian
citizenship. On 25 February 1975 the application was approved by or on behalf
of the Minister for Immigration, but neither the Minister, nor his Department,
nor anyone on behalf of the Commonwealth notified the plaintiff that his
application had been successful. As a result of the absence of notification,
the plaintiff, as was reasonably foreseeable, did not take an oath or
affirmation as specified in s. 15 of the Australian Citizenship Act 1948
(Cth), as amended, and there was not issued to him a certificate of
citizenship. On 17 March 1977 the plaintiff was convicted before the District
Court of New South Wales at Griffith of supplying Indian hemp, contrary to s.
21 of the Poisons Act 1966 (N.S.W.) and was sentenced to imprisonment for two
years. On 7 August 1978 the Minister for Immigration, in purported exercise of
his power under s. 12 of the Migration Act 1958 (Cth), as amended, ordered
that the plaintiff should be deported from Australia.
The High Court of Australia decided this case enormously in that albeit;
On 25 February 1975 the application was approved by or on behalf

Page 441
of the Minister for Immigration, but neither the Minister, nor his Department,
nor anyone on behalf of the Commonwealth notified the plaintiff that his
application had been successful.
The Court centred its decision upon if the person had or had not made an oath of alience
within the Australian Citizenship Act 1948, rather then if the person was an approved
citizen.
The issue is that the Minister by his approval of the application (regardless if this
application was constitutional valid or not) had recognised that Mr Pochi had been
approved to be granted “citizenship”. This implies that the Minister at the time of that
approval held that Mr Pochi was a person worthy of citizenship.
The issue then ought to be if the recognition by the Minister in itself was a demonstration
that Mr Pochi was accepted to be a “citizen”, this as the application within the Australian
Citizenship Act 1948 is ULTRA VIRES in regard of citizenship, and as such the
application was to have been construed not being one of Australian citizenship but rather
one of Australian nationality within the powers of naturalization.
The same with Heather Hill, who by virtue of being a British born British subject upon
arrival in Australia AUTOMATICALLY obtained her political rights to be a State
citizen and so Australian citizen without needing to make any application at all. Her
application for Australian citizenship was one that was really only one to obtain
Australian nationality. This, the High Court of Australia simply omitted to realise.
Heather Hill (Sue v Hill) by virtue of arrival in Australia obtained all political rights
associated with any citizen of the State she came to reside within, including the
provisions then of S41 of the Commonwealth Constitution. That was one of the basic
principles of Federation as the framers made clear that to do otherwise would mean the
Federation bill would be rejected! The Commonwealth Constitution doesn’t therefore
either provide for Australia to declare Brittain to be a “foreign power”, as the inherent
provision is that the commonwealth has no such constitutional powers! Only by way of
Section 128 referendum could this be achieved. The usage of “Queen of Australia” is
also unconstitutional as again the framers made clear that the Commonwealth had no
constitutional powers to interfere with the standing or otherwise of the Monarchy!
16. That I view that in POCHI v. MACPHEE (1982) 151 CLR 101 the High Court of
Australia erred severely in that it ought not be for the Commonwealth to dictate terms in
Migration Act which are within the powers of any State. In that case, the person was
convicted of an offence under NSW law, which for the same in another State may not
have resulted to any conviction, if the laws of that State didn’t hold it a criminal offence.
As such, the Commonwealth powers must be held to be confined to any offences that are
committed or allegedly committed under Commonwealth law and even then it is for the
States to determine the innocent or guilt of that person. (as set out in my book).
Australian citizenship can only deal with laws under the Commonwealth Constitution,
not any particular State laws. As such, I view that by virtue of State citizenship Mr
Pochi’s criminal record not being an issue within his State ought to have been no issue for
Commonwealth purposes. It is here where the issue of State versus Australian citizenship
is also very relevant!
17. That there is a confusion by the various Courts about what “Australian citizenship” is
really about and the oath associated to it is shown also in the matter of Moller v Board of
Examiners for Legal Practitioners [1999] VSCA 116 (30 July 1999) the Court there
considers the oath/pledge made as an alien to become naturalized and that of the Court.
What it omitted to realize and address is that the oath/pledge to become naturalized is one
Page 442
to the whole of Australia, all laws governing all citizens of Australia, where as an oath as
practitioner to the State of Victoria is in regard of laws of the State of Victoria, being
often different to laws of other States. Here is the problem that eminent lawyers even in
the position of being judges fail to realise that “State citizenship” is to protect a “citizen”
of that State in regard of all rights and privileges provided for within that State, which
may be different then those rights and privileges of another State. That the rights and
privileges of being an Australian citizen only relates to rights governed by the
Commonwealth Constitution, and have nothing to do with State rights unless so
specifically stated in the Commonwealth Constitution. “citizenship” relates to political
rights, not to naturalization!
18. That I am aware that the political party named Australian Greens are campaigning for
Australian citizenship above that of State citizenship, as least various of its campaigners
made known to me. This, even so “State citizenship” and “Australian citizenship” are
complimenting each others, and do not in any way conflict with each other. State
legislation dictates “State citizenship political rights” Commonwealth legislation dictates
Commonwealth citizenship political rights for so far permissible within the provisions of
the Commonwealth Constitution. The right of trade without restrictions of any State
borders is clearly a political rights obtained as an Australian citizen.
19. That no person can become “Australian citizen” without being first a “State citizen”.
Albeit the Commonwealth has the legislative powers to determine who can enter
Australia, it can’t force any State to accept any person into its State territory. As such, the
Commonwealth may, for argument sake, grant visa’s to a person of “PURPLE
NATIONALITY” to enter Australia, but it can’t force a State to accept this person from
“PURPLE NATIONALITY” as a resident and/or citizen, if that particular State doesn’t
want such people to enter its State. The right to govern immigration and of aliens is one
to determine if they are suitable to Australia, but doesn’t extend to override the
Sovereignty of the States to determine who shall or shall not be its residents and/or
citizens. Indeed , as set out in my book, the framers made clear that no State could be
forced to accept people it didn’t want as residents.
20. The framers of the Commonwealth Constitution themselves didn’t even know the true
meaning of “citizenship” and as such could not be perceived to give the Commonwealth
some legislative powers as to something they themselves questioned what it was
meaning. Indeed, the framers made clear it was for every State to determine for
themselves what the true meaning of “citizenship” was within their own State.
Hansard 2-3-1898
The Federal Parliament could do nothing in the way of

defining the qualification of citizenship or the rights of
citizenship beyond the limits of the Constitution.
I would point out to Dr. Quick that he is proposing to give a power to regulate or
describe rights of citizenship, when we really do not know at present what is
meant by a citizen. I confess I do not know what the honorable and learned member
means by that term.

Page 443
21. That the position is that the Commonwealth is the federation of the States as to limited
powers only. The States are the independent sovereign nations that came together for
certain purposes but they refused to hand over certain legislative powers. For example the
imprisonment of people accused or convicted of any breaches of Commonwealth Law
must be in State prison facilities, where the alleged breach had occurred. The
Commonwealth however had the powers to determine which particular State prison
system could be used if an alleged breach of Commonwealth powers was occurring
outside any particular State. As such, the detention of any refugees outside any particular
State territory (including its water (Sea) territories then the Commonwealth was to
determine which State prison the alleged offenders were to be placed. (The, so called,
“Pacific solution” as such was unconstitutional) the Migration Act determining that non-
citizens are to be placed in Commonwealth Detention Centres for this is also
unconstitutional, bot for using the term “non-citizen” and the provision for
Commonwealth Detention Centres. This, as the framers didn’t want the
Commonwealth to have any legislative powers to enforce its own laws! Indeed, the
framers also made clear that the State Courts were to enforce Commonwealth Law and
only for so far it was not held by that State to be tyrannical powers by the Commonwealth
as otherwise the Court could use JURY NULLIFICATION, refusing to convict a
accused person.
22. The framers (again, as set out in my book) made clear that the Commonwealth would
have no powers to enter any state with its forces (being it ASIO, Australian Federal
Police, Army, etc) as the local law enforcement of a State were only so empowered,
unless upon request of a State government it was to deal with domestic violence (riots).
As such, it is essential to the “citizenship” that this remains in the hands of the States, as
to prevent the Commonwealth to deny any “citizen” of its State laws. Otherwise,
“extradition” from one State to another could be circumvented by using the Australian
Federal Police and by this nullify State legislative provisions by a State to protect its
citizens!
23. That the following case law reference (quoted below) shows the gross misconception by
the Courts that it relies upon Australian citizenship purportedly granted by the
Commonwealth where none can be granted. The truth is that the framers made clear that
it would be beyond the legislative powers of the Commonwealth to legislate against
British subjects. The framers also made clear (as shown in my book) that a British subject
upon arrival obtains AUTOMATICALLY State citizenship and so
AUTOMATICALLY Australian Citizenship, and this without application. The High
Court of Australia misconceived that because Heather Hill applied for naturalization this
related to her Australian citizenship or her political rights. The Commonwealth had no
constitutional powers to declare British government an foreign power without first having
a Section 128 Commonwealth Constitution referendum.
The purported Australian Act, despite what the high Court of Australia stated, is and
remains UNCONSTITUTIONAL as the States could only refer legislative powers that
were within their own legislative powers and only if within their legislative powers the
relevant State could refer legislative powers. This Dr Quick (during the Constitutional
Conventions Debates) also questions being within the State legislative powers. The State
of Victoria has no legislative powers to refer its legislative powers to the Commonwealth,
and any purported reference of legislative powers is by this ULTRA VIRES. (As set out
in my book also!)

Page 444
[210] (2001) 75 ALJR 1439 at 1458-1459 [110]; 182 ALR 657 at 682-683.
"A recent example of this process of the denotation of constitutional terms becoming
enlarged in the context of Australia's emergence as a sovereign state is Sue v Hill. In Sue v
Hill, the Court held that the term 'foreign power' in s 44(i) of the Constitution now includes the
United Kingdom although in 1901 and for long after the United Kingdom was not a 'foreign
power' within the meaning of that term. Consequently, the first respondent, Mrs Hill, who had
been born in England but had taken out Australian citizenship, was the subject of a foreign
power and incapable of being chosen as a member of the Senate. Three Justices of the
Court said [(1999) 199 CLR 462 at 496 [78]]: 'Whilst the text of the Constitution has not
changed, its operation has. This reflects the changed identity of those upon whose advice
the sovereign accepts that he or she is bound to act in Australian matters by reason, among
other things, of the attitude taken since 1926 by the sovereign's advisers in the United
Kingdom. The Constitution speaks to the present and its interpretation takes account of and
moves with these developments.'"
24. The Defendant did request, in writing, the Governor-General to withdraw the defective
writs issued on 8 October 2001 (setting out certain reasons), and issue valid writs, upon
this the Governor-General never responded. However, the issue is that the Defendant did
pursue matters to be corrected but can’t be held accountable for any ignorance displayed
or perceived to be displayed by the Governor-General.
25. The Defendant did request, in writing, the Governor of the State of Victoria, to withdraw
the defective writs issued on 5 November 2002 (setting out certain reasons), and issue
valid writs, upon this the Governor never responded, so far. However, the issue is that the
Defendant did pursue matters to be corrected but can’t be held accountable for any
ignorance displayed or perceived to be displayed by the Governor.
26. The Defendant therefore having made request to the then Acting Prime Minister Mr John
Howard, the Australian Electoral Commission, the Governor General and through the
Federal Court of Australia made many attempts to seek to avoid this unconstitutional
debacle, but to no avail.
27. The usage of “citizens” in the following quotation appears to be more as if “residents” are
referred to as being “citizens”. After all, insurance companies would hardly restrict its
insurance coverage only to those declared “citizens” where the term “citizen” then was
not even defined by law!
HANSARD 12-9-1897
Mr. BARTON:
After the sub-section giving power to the Federal Parliament to legislate with regard
to banking, the incorporation of banks, and the issue of paper money, power is
proposed to be given to it to legislate upon insurance, including State insurance
extending beyond the limits of the State concerned. Where a State adopts a system of
State insurance, for instance, on lives, and where that State takes proposals, not only
from citizens within its own bounds, but accepts those emanating from citizens of the
Commonwealth beyond its bounds, then it is proposed that that insurance shall be
subject to the general provisions of the Commonwealth law on the subject, but where
the business is confined within the limits of the State carrying it on it is not proposed
to interfere with it. The sub-section following that dealing with naturalisation and
aliens originally read:

Page 445
However, whereas the word “citizen” may or may not have been defined, and so its usage
was open to all to include or not include “aliens”, as their presence in a State would
hardly denied them insurance cover on the basis of lack of naturalization, and as such the
issue of “citizenship” was not a legal issue per se, until the Victorian Constitution
actually provided for the legal requirement of “Australian citizenship” as it is by this that
whatever informal meaning was applied to “citizenship” the State then took upon it that it
had to be a person in certain ways. However, the doctrine of “Australian citizenship” as
per Australian Citizenship Act 1948, did not in any way alter and neither could alter the
fact that the framers stipulated that one must have State citizenship to be able to obtain
Australian citizenship.
This means that even if the Australian Citizenship Act 1948 definition were to be
accepted, it still would not remove the fact that unless the State first grant State
citizenship, there is no way any person can obtain Australian Citizenship.
The framers made clear it was a DUAL CITIZENSHIP!
One can’t simply not have a single citizenship within Australia as DUAL
CITIZENSHIP is the basic fabric upon which the political rights of any Australian
citizen is built.
However, somehow most people (including lawyers and politicians, for so far they are not
the same identity) seem to have been misled that there was only the Australian
citizenship! Even that the Parliament legislated for DUAL CITIZENSHIP, where this all
along was applicable.
A State citizen from Victoria may become a resident of New South Wales, but maintains
State citizenship by virtue of birth in Victoria. The person’s Australian citizenship would
not alter upon which State the person resides in, neither his/her political rights, unless so
dictated by the Commonwealth Constitution. The lack of any Statute to provide for any
person to apply for State Citizenship or otherwise to be granted State citizenship in
Victoria, albeit the Victorian Constitution demands Australian citizenship to be an
elector, means that not a single person could obtain Australian citizenship and so become
an elector until the Parliament of Victoria provides a Statute to obtain State citizenship of
Victoria.
However, as I contested the validity of the 30 November 2002 election for the State of
Victoria also, and so contested the validity of the electors since 5 August 2002, then the
current PURPORTED Victorian Government is no Parliament as all as its Members of
parliament were elected by electors who failed to have State citizenship and for this also
Australian citizenship!
It prohibits this unconstitutional Government to amend any constitution of Victoria, and I
see no other way out but that once the Australian Citizenship Act 1948 is declared to be
ULTRA VIRES in regard of “citizenship”, then the requirement of the Victorian
Constitution also becomes ULTRA VIRES. However, it remains the question, if this
redress the problem that at the time of the election having been held the purported
“electors” were not electors at all, for failing to have first State citizenship!
In any event, the purported electors, not being electors, neither then could be deemed
entitled within Section 41 to be electors to be entitled to vote in the 10 November 2001
Federal election. This applies not only to the purported Victorian electors but to all
purported electors of the States who place the prerequisite that a person is to be an
Australian citizen in accordance of the definition in the Australian Citizenship Act 1948.
28. That Throughout the Constitutional Convention Debates in 1891, 1897 and 1898 there
was an agreement that there would be no “uniform criminal law”, but that breaches of
Commonwealth law would be dealt with according to the State criminal laws of the State
where the alleged offence occurred. Albeit, The Commonwealth did enact the Crimes
Page 446
Act, it remains ULTRA VIRES. In regard of claim against the Defendant of not voting,
there is clearly no constitutional powers for the Commonwealth to have the matter heard
within its own Criminal Act legislation, as it is ULTRA VIRES. Further, because of the
division in Writs being State for the Senate and Commonwealth for the House of
Representatives, then any Commonwealth claim against the Defendant must be limited to
the issue of House of Representatives election. Whereas the issue of alleged not voting
for the Senate, is one that is within the legal provisions of the State, being it a State writ
and State Proclamation needed to have an election for the Senate.
Hansard 11-3-1891
Mr. CLARK:
My friend, Mr. Wrixon, said something about the desirableness of a uniform criminal
law, and while he was speaking I expressed the opinion that we should not have a
uniform criminal law. The hon. member invited me, I understood, to give some
reasons why we should not have it. I have placed my note upon criminal law under
the head of state interests, because I believe it comes under that head. It might be
desirable in some colonies or in some states, to make certain things crimes which it
would not be desirable to make crimes in other states. We know that in the American
union the eastern states are highly civilised, refined communities, advanced in
physical, intellectual, and artistic culture; while, on the other hand, the western states,
or the backwoods, as they are called, are in a very different position, politically,
socially, and intellectually. It might be necessary in some of the states to pass
stringent laws making certain things crimes which would not be so dealt with in other
states. Besides, we know that the law is often used as a means of effecting indirectly
some ulterior purpose, also for the purposes of class or special interests. The game
laws of England occupied in former years, and occupy now to a certain extent, a
foremost place in the provisions of British criminal legislation. We know what
detestable and abominable laws they were, and we know that they were introduced
not for the protection of life and property and individual liberty in the ordinary sense-
not for the same purpose as that for which you make murder or forgery a crime-but
for the conservation of certain class interests and class privileges. In America, in the
days of slavery, it was made a capital felony in some states to teach a negro to read or
write; and even at the present day, when slavery has been long abolished, the
marriage of black people with white people in some states is made criminal. Men
who have chosen to marry a mulatto or a quadroon have stood in the criminal's box
and have been sentenced as common criminals. Now, there was a time when the
slave power was so strong in America that it appeared to be about to transform the
whole union into its own hideous form and likeness, and, if the attempt had
succeeded, it would have been [start page 253] a most lamentable state of things to
have the laws which would have been then enacted in force throughout the whole of
the Union-in Massachusetts, in the home of the pilgrims, as well as in Louisiana. We
do not want to run that risk. Do not let us, therefore, have a uniform criminal law, but
let each state have its own law.
Again;
Mr. CLARK:
Do not let us, therefore, have a uniform criminal law, but let
each state have its own law.
Page 447
Hansard 2-3-1898
Mr. HIGGINS.-Then all crimes should be left to the Commonwealth?
Mr. BARTON.-No; because you do not give any power with regard to
punishing crime to the Commonwealth
However, we find that people are even imprisoned, without charge, by the
Commonwealth by a lack of the States and/or the judiciary to appropriately apply the
constitutional limitations of the Commonwealth Constitution!
29. That in my view the conduct of the Plaintiff (and so also of those acting under his
authority,) as some referred to above, is jeopardising the security of our democratic
society and a gross and utter and blatant disregard for the various legal and
constitutional provisions of the applicable Constitutions, Statued law (State and/or
Commonwealth) and Case Law and must neither be condoned or accepted to be
allowed to continue in any part thereof and for this the applicant urge the Court to
make the finding, declarations etc. as sought hereunder as to the conduct of the
Plaintiff in general and each item on its own or in combination is/are a breach of
constitutional power etc.
30. That I also seek to rely upon the following quotations;
Hansard 27-1-1898
Mr. BARTON.-If a state Parliament wants to shirk its responsibility it can fall
back upon the referendum.
[start page 223]
Mr. ISAACS.-With regard to the other point that a state may repeal a law, I do not
agree with that argument. If a state refers a matter to the Federal Parliament, after
the Federal Parliament has exercised its power to deal with that matter the state
ceases to be able to interfere in regard to it. Moreover, when the Commonwealth
has passed a law at the request of any Parliament or Parliaments, and the
Parliament of a third state adopts it, it adopts a Commonwealth law, and it
requires the consent of the Commonwealth to get rid of that law. In my opinion,
there is no power of repeal with the states, and I feel no doubt that I have read
among the decisions of the United States, one which is to the effect, although I
cannot just now lay my hands upon it, that when a state has, with the consent of
Congress, made certain enactments the power of Congress is required to repeal
those enactments.
Mr. REID.-Otherwise the provision would be perfectly idle. A state would refer a
matter to the Commonwealth, and, not being pleased with the precise manner in which
that matter was dealt with, it would immediately repeal the law.
Mr. ISAACS.-Yes; the state might just as well pass the law for itself.
Page 448
Mr. OCONNOR.-A law once passed under this provision becomes a federal
law.
Mr. ISAACS.-Yes, and nothing less than the federal authority can get rid of it.
Mr. BARTON (New South Wales). With regard to the particular sub-section which
we have now in hand, I have not been brought to see that any dangerous power is
given in it, or that there is any reason for an alteration. Let us take first the suggestion
of the honorable and learned member (Mr. Deakin). The Federal Parliament can only
deal with such matters as a state or states refer to it. A state may refer to the Federal
Legislature a certain subject without referring, or expressly excepting from the
reference, any financial dealing with that subject. In such a case the Commonwealth
could only legislate upon the subject so far as its financial aspects were not concerned.
If the whole subject were referred, not excepting finance, the Commonwealth could
legislate to the whole extent of the reference. I think that the words used in the sub-
section are ample for either case. The difference with regard to sub-section(3)is this: It
is plain that that sub-section refers only to the raising of money by any mode of
taxation for general Commonwealth purposes. Like all the rest of these sub-sections,
with the exception of one or two which contains special provisions, it concerns matters
relating to the peace, order, and good government of the Commonwealth," and the
word Commonwealth" means prima facie the whole Commonwealth. In this sub-
section, however, there are special words which prevent the law applying to the whole
Commonwealth, and these are the words quoted by the honorable and learned member
(Mr. Deakin):-
But so that the law shall extend only to the state or states by whose Parliament or
Parliaments the matter was referred, and to such other states as may afterwards adopt
the law.
It seems to me that if there is any raising of money intended by the states to be

delegated to the Commonwealth-and they can only delegate their legislative authority
to a certain extent, provided for by the Constitution-that will be expressed in the
reference, or it can be excluded from any reference. In the one case or the other the
Commonwealth can only proceed as far as the extent of the reference. Then there was
the objection of the honorable and learned member (Dr. Quick), that this
provision affords an easy method of amending the state Constitution without the
use of the referendum. But at the present time the state Constitutions do not provide
for the use of the referendum. The government of the states is by a majority of the
representatives of the people, and it must [start page 224] be constitutionally assumed
that when a majority of the two Houses of Parliament make a law the people speak
through that law. If the people choose to speak through a law made in this way, there is
no evasion of responsibility when an appeal was made to a superior authority for the
settlement of a difficulty incapable of settlement by the relations of two bodies at
issue. This is not a restriction but an enlargement of the legislative powers of the
states, which I think is in the spirit of democracy, and one that we should grant.
Mr. HOLDER (South Australia).-I want to ask the leader of the Convention a
question, his answer to which will influence my vote on the subject before us. The
sub-section upon which we are dealing and the following sub-section are the only
ones which provide for an extension of the powers of the Commonwealth. I have
been looking up the clauses in Chapter VIII., and I do not see that under them
Page 449
any extension of the powers of the Commonwealth can be dealt with. I want to
know whether I am right in supposing that under these clauses no extension of
the powers or scope of the Commonwealth would be possible, because I think that
under that chapter, if any alteration of the Constitution of the Commonwealth is
desired, the states, to obtain it, must first-have a law passed by the
Commonwealth Parliament? Now, suppose it is proposed to enlarge the power of
the Commonwealth, by placing under its control the administration of Crown
lands. First of all, the Federal Parliament would have to pass a law upon this
subject, and that law might be held to be ultra vires. There would be no power to
submit anything to the electors without Parliament first of all passing a Bill,
which, however, would be from the outset outside its power. I should like to know
from the leader of the Convention whether my view of this matter is correct?
Mr. BARTON (New South Wales).-What I understand my honorable friend (Mr.

Holder) to ask is this: Suppose it were desired that extra-legislative power than now
exists should be granted to the Commonwealth-as, for instance, to take under its
control questions relating to Crown lands, and so on-whether an alteration in the
Constitution in that direction would be ultra vires? Now, the Bill provides, in Chapter
VIII., that the provisions of the Constitution shall not be altered except in the
following manner;" which, to my mind, means that if the processes specified are
adopted the provisions can be altered in any way. I take the provision to mean that
authority is given to the Commonwealth under the processes here specified to alter this
Constitution in any manner, so far as it deals with the affairs of Federated Australia,
and not with affairs outside the dominion of Australia. Consequently, if it were
proposed to add a legislative power of the kind suggested by Mr. Holder, I take it that
as Chapter VIII. provides first for the passage of the proposed law by an absolute
majority, and then for a referendum, the law would have no effect
unless the majorities of the several states agreed to it. So that
not only the Commonwealth but the states would have to
agree to the passage of the law. Then any objection to that law becoming
a new part of the Constitution of the Commonwealth would vanish; because, I think,
so much authority is conceded by Chapter VIII.
And;
Mr. DEAKIN.-My point is that by the requests of different colonies at different
times you may arrive at a position in which all the colonies have adopted a particular
law, and it is necessary for the working of that law that certain fees, charges, or
taxation should be imposed. That law now relates to the whole of the Union, because
every state has come under it. As I read clause 52, the Federal Parliament will have
no power, until the law has thus become absolutely federal, to impose taxation to
provide the necessary revenue for carrying out that law. Another difficulty of the
sub-section is the question whether, even when a state has referred a matter to
the federal authority, and federal legislation takes place on it, it has any-and if
any, what-power of amending or repealing the law by which it referred the
question? I should be inclined to think it had no such power, but the question
has been raised, and should be settled. I should say that, having appealed to
Caesar, it must be bound by the judgment of Caesar, and that it would not be
possible for it afterwards to revoke its reference.
What is very important are the wording;

Page 450
Mr. BARTON.-If a state Parliament wants to shirk its

responsibility it can fall back upon the referendum.
It relates to “a state Parliament” and “referendum”, as such a referendum is needed to

accept a State to have accepted it reference of Power.
Also;
I take it that as Chapter VIII. provides first for the passage of the proposed law
by an absolute majority, and then for a referendum, the law would have no
effect unless the majorities of the several states agreed to it. So that not only the
Commonwealth but the states would have to agree to the passage of the law.
Albeit, a State can adapt a Commonwealth law that is validly enacted within the
Commonwealth Constitution, the reference of power however is limited, where it is to
create legislative powers that doesn’t exist previously “So that not only the
Commonwealth but the states would have to agree to the passage of the law.”. As
such, it is not an issue for the Commonwealth to legislated on any matter referred to it
unless by way of referendum this was accepted. The Victorian purported reference of
powers Commonwealth Powers (Family Law- Children) Act 1993 No.92 of 1986 the
Mutual Recognition (Victoria) Act 1993 were never approved by way of referendum and
are NOT AT ALL part of the Constitutional powers of the Commonwealth albeit so
claimed in prints of the Commonwealth Constitution.
On 7 and subsequently on 21 October 1986 the Legislative Council passed the

Commonwealth Powers (Family Law - Children) Act 1986 No 92 which was Gazetted
on 16 December 1986 and came into force on 28 October 1987. Version 010 being:
s. 4
The Governor in Council may, at any time, by proclamation published in the
Government Gazette, fix a day as the day on which the reference under this Act
shall terminate.
Mr. DEAKIN.-
Another difficulty of the sub-section is the question whether, even when a state
has referred a matter to the federal authority, and federal legislation takes place
on it, it has any-and if any, what-power of amending or repealing the law by
which it referred the question? I should be inclined to think it had no such power,
but the question has been raised, and should be settled. I should say that, having
appealed to Caesar, it must be bound by the judgment of Caesar, and that it
would not be possible for it afterwards to revoke its reference.
Version No. 010

Commonwealth Powers (Family Law--Children) Act 1986
Act No. 92/1986
Version incorporating amendments as at 14 July 1997

Page 451
This Version incorporates amendments made to the Commonwealth Powers
(Family Law--Children) Act 1986 by Acts and subordinate instruments.
The Victorian Parliament has PURPORTEDLY amended this legislation of the

Commonwealth Powers (Family Law - Children) Act 1986 No 92 totally unaware what
the true reference of legislated powers possibly could mean! It purports to refer legislative
powers and withdraw it as it please! It was however never accepted by any referendum on
the first place!
GLEESON J as a judge in the corium in of the Full Court of the HIGH COURT OF
AUSTRALIA in HCA 27 of 1999 under point 31 had this to say:
“..I held that State Parliaments had no power to vest State Judicial power in
federal courts created by the Parliament of the commonwealth and that the
parliament of the Commonwealth had no power to consent to State Parliaments
vesting State Judicial power in the federal courts.”
I view, that likewise the States have no constitutional powers to vest the Commonwealth
with legislative powers or the commonwealth to consent to accept legislative powers
within Section 51(xxxvii) of the Commonwealth constitution unless the State constitution
provides for such reference of legislative powers and also such reference of legislative
powers has been approved in accordance of the provisions of Section 128 of the
Commonwealth Constitution by way of referendum, as well as that both the States (and
so those voting in the referendum) and the Commonwealth have been aware that this
reference of legislative powers is one of a permanent nature, after which the relevant
State referring the legislative powers for ever has lost future legislative powers either to
rescind, amend or otherwise alter any legislation the Commonwealth may provide upon a
successful referendum.
The Victorian Constitution under s16 provides that “The Parliament shall have power to
make laws in and for Victoria in all cases whatsoever.” As such, this clearly exclude any
“reference” of legislative powers from the State of Victoria to the Commonwealth! After
all, to refer legislative powers means the State no longer has it, and that breaches the
provisions of s16!
31. That albeit the Victorian Constitution refers to the Australian Citizenship Act 1948, no
specific legislation appears to be in place as to formally adopt this Commonwealth
legislation.
32. That during the Constitution Convention Debates, the framers made it very clear that
commonwealth law was to be enforced within the States by State Courts and using State
Crimes Act and outside the borders of the States it would be the British criminal laws that
were applicable on the ships of Great Brittain. Albeit the British ships no longer are
applicable and so a vacuum exist as to the lack of British criminal law, without any
amendment of the Commonwealth Constitution to include such powers, the
Commonwealth can’t for itself take on certain legislative powers which specifically and
deliberately were denied to the Commonwealth!
33. That the Australian Act is and remains unconstitutional, as it was not within the
legislative powers of each of the States to legislate for the Australian Act for themselves,
and as such can’t purportedly refer powers not within its own legislative powers. Further,
Page 452
any reference of legislative powers is conditional upon being accepted by way of Section
128 Commonwealth Constitution referendum before being valid in law.
Hansard 27-1-1898
Mr. BARTON.-Ifa state Parliament wants to shirk its

responsibility it can fall back upon the referendum.
34. That if the Proclamation signed by the Governor General on 5 October 2001 but firstly
published on 9 October 2001 was defective and so ULTRA VIRES in regard of Prorogue
the Parliament and dissolving the House of Representatives, then all seats must be
deemed vacant, by virtue of Section 20 & Section 38 of the Commonwealth
Constitution, as none of the members of either House attended for the remaining 3
months of sitting days.
35. That I must set out that despite Constitutional limitations the Commonwealth has set up
its own Minister for Education and other matters and unconstitutionally uses that against
the States. The point being, that no matter what the Commonwealth may legislate, being
it Australian Citizenship Act 1948, or other Commonwealth legislation, if it ain’t within
the constitutional powers it ain’t worth the paper written on it!
Hansard 1-3-1898
Mr. WISE.-If the Federal Parliament chose to legislate upon, say, the education
question-and the Constitution gives it no power to legislate in regard to that
question-the Ministers for the time being in each state might say-"We are favorable
to this law, because we shall get £100,000 a year, or so much a year, from the Federal
Government as a subsidy for our schools," and thus they might wink at a violation of
the Constitution, while no one could complain. If this is to be allowed, why should
we have these elaborate provisions 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 colonies may unanimously agree? Why have this
provision for a referendum? Why consult the people at all? Why not leave this
matter to the Ministers of the day? But the proposal has a more serious aspect,
and for that reason only I will ask permission to occupy a few minutes in
discussing it.
36. That likewise makes clear, that conduct of ASIO, and Australian Federal Police, are not
justified and not within the Commonwealth Constitution, albeit States tend to ignore this.
It doesn’t make it Constitutional valid, as like the Australian Citizenship Act 1948 where
it is beyond the constitutional powers of Commonwealth then it is ULTRA VIRES. As
such, each and every unconstitutional power exercised will not by mere passing of time
make it lawful, or constitutional valid. The only manner in which to have it become valid
is to have the Commonwealth Constitution amended by referendum, and then
Hansard
Mr. DIBBS:
We have no enemies within, and the only thing we have to fear is the possibility of
any assault on the mother country by her enemies from without, unless indeed the

Page 453
creation of a standing army proves a menace to the people of Australia by the
existence of an armed force for unlawful purposes.
And;
Our own police are quite sufficient for the preservation of order within.
37. That I seek this Court to adjourn these proceedings and to place before the HIGH
COURT OF AUSTRALIA a CASE STATED as to have the High Court of Australia to
first determine the following matters;
(i) Can a person obtain “Australian citizenship” without first obtaining “State
citizenship” (Quasi States being Territories included)? If so, then by which
constitutional valid manner?
(ii) Does the Commonwealth have constitutional powers to define “citizenship”? If

so;
(a) under which provision? And
(b) in regard of aliens and immigrants; or
(c) in regard to any person within (b), as well as and including those born
within Australia?
(iii) Does the Commonwealth have constitutional powers to declare and/or grant
citizenship? If so,
(d) under which provision? And
(e) in regard of aliens and immigrants; or
(f) in regard to any person within (b), as well as and including those born
within Australia?
(iv) Does the Commonwealth have the constitutional powers to determine the rights of
a resident in a State to obtain citizenship of such State? If so, by which
constitutional powers?
(v) If the adaptation by the State of Victoria of the Australian Citizenship Act 1948
were to be deemed valid, then has the Commonwealth by this the legislative
powers to determine the political rights of the citizens of the State of Victoria,
where purportedly they have no State citizenship. If yes, would then the
Commonwealth be able to dictate who shall be electors by what conditions and
override any Constitution provision that may exist within the Victorian
Constitution?
(vi) Where the Constitution of Victoria purports to adapt the Australian Citizenship
Act 1948, is then that part of the Victorian Constitution Federal law and can only
be amended or otherwise altered by Commonwealth legislation?
(vii) If the Australian Citizenship Act 1948 is ULTRA VIRES for so far it deals with
granting “citizenship” to any particular person, can then the adaptation of this part
by State nevertheless be held legally enforceable?
(viii) If the purported granting of Australian citizenship within the Australian

Citizenship Act 1948 is ULTRA VIRES, then is any State qualification based

Page 454
upon the Australian Citizenship Act 1948 definition of Australian citizenship also
ULTRA VIRES?
(ix) Where the Defendant was not a State citizen at the time of election being held,
then was the Defendant nevertheless a qualified State elector, where the purported
Australian citizenship granted to the Defendant on 28 March 1994 was ULTRA
VIRES.
(x) Where the Defendant was not a State citizen at the time of election being held,
then was the Defendant nevertheless a qualified Commonwealth elector, where
the purported Australian citizenship granted to the Defendant on 28 March 1994
was ULTRA VIRES.
(xi) Was the Proclamation signed on 5 October 2001 by the Governor General for the
Prorogue of the Parliament and the Dissolution of the House of Representatives
legally applicable;
(a) On 9 October 2001, when the first Special Gazette S421 was first published
in Canberra, but only in Canberra, and/or
(b) On 9 October 2001, in all States and Territories irrespective if Special
Gazette S421 was not published in any particular State/Territory, and/or
(c) On 10 October 2001, when Special Gazette S421 first published in the State
of Victoria?
(xii) Was the Proclamation signed on 5 October 2001 by the Governor General for the
Prorogue of the Parliament and the Dissolution of the House of Representatives
legally applicable at all, where the date of the purported Prorogue and the
dissolution had occurred on a previous day? If it was valid from the time and day
of actual publication then;
(a) If it was valid from the time and day of actual publication then, were both
prorogue and dissolution occurring instantly at the same time at
commencement of the day, 00.01 AM on 9 October 2001 and/or
(b) Was the Prorogue of the Parliament valid, but not the Dissolution of the
House, where the latter one was to occur on 8 October 2001, AFTER the
Prorogue of the Parliament, and for this could not occur. And/or
(c) Was the proclamation valid, as to be a proclamation, but not for the date and
time of the events to occur, as a subsequent amendment Proclamation was
required, to provide date and times for the prorogue of the Parliament and the
dissolution of the House of Representatives to be applicable AFTER the date
and time of actual publication of the subsequent amended proclamation?
(xiii) Where the writs were issued by the Governor-General using the wording
“according to law” but the Australian Electoral Commission had not drafted the
writs “according to law” can it be held that the writs therefore were defective and
so null and void?
(xiv) Can the Australian Electoral Commission lawfully act outside the provisions of
Section 7 of the Commonwealth Electoral Act 1918 to;
(a) act in breach of the Commonwealth Constitution and any legislative
provisions in regard of State legislative provisions regarding Senate
timetables? And/or
Page 455
(b) act in breach of the legislative provisions of the Commonwealth Electoral
Act 1918 to hold elections in a manner of election timetable not being as
legislated.
(xv) Is the legal obligation of the Australian Electoral Commission to first act within
the legal provisions of the Commonwealth Electoral Act 1918, and must return
any defective writ issued by a Governor-General and/or Governor with a request
to correct any offending parts and reissue the Writ(s)?
(xvi) Can the Australian Electoral Commission be excused from non-compliance with
statutory legal requirements, upon the basis of the writs being issued as to a
certain timetable, irrespective that the Australian Electoral Commission
caused/created the writs be issued defective?
(xvii) Where the Special Gazette doesn’t contain the wording “Government printers”, or
any simular wording, is it then that the “judicial notice’ required by the Act
Interpretation Act 1901 is not applicable?
(xviii) Where the Court of disputed returns fails to have any judicial powers to deal with
more then one poll, and the Defendant sought to have the Federal Court of
Australia to deal with numerous matters of numerous polls, including injunctions
against the Australian Electoral Commission’s conduct to hold a poll in breach of
constitutional and legislative provisions, then was the Federal Court of Australia
the appropriate Court to deal with the matters?
(xix) Where the defendant is contesting the validity of the purported 10 November
2001, and has pending proceedings outstanding prior to the purported 10
November 2001 elections being held, then is the Defendant entitled then not to
vote in such purported election in that it would undermine his case outstanding at
the time before the Courts?
(xx) Does the Commonwealth have legislative powers in regard of (commonwealth)

Crimes Act where the framers of the Commonwealth Constitution specifically
ruled that the Commonwealth would not have constitutional powers for Criminal
law legislation as in the States the State criminal laws would be applicable, and
beyond the States borders it would be the British crime laws that would be
applicable?
(xxi) Can the issue of not voting be pursued within the (Commonwealth) Crimes Act,
where the issue of any elector voting is confidential?
(xxii) When the relevant legislation to any election states “shall not be less than”, is
then the number of days referred to held to be clear days between the events
referred to?
(xxiii) Where the relevant Act stipulates a minimum days, such as using the wording
“shall not be less than” in relation to enrolment and/or nomination of candidates,
must then the elector or a person entitled to be an elector have access to enrol or
to nominate for each of the “shall not be less than” number of days provided? If
not, could effectively the electoral commission close its doors for most if not all
of the days by this in effect nullifying the Statutory provision?
Page 456
(xxiv) Can the Commonwealth Electoral Commission exercise any powers within
Section 7 of the Commonwealth Electoral Act 1918 in regard of holding any
Senate election in breach of the legislative provisions of the relevant State , upon
writs that were issued defectively by a Governor of a State having been the
product of false and misleading details to advise the public, the government and
the Commonwealth about the true nature and its application of legislative
provisions?
(xxv) Were the Candidate handbooks containing false and misleading

details/information, where it quoted the incorrect State legislation purporting to be
Senate legislation of the States denying electors/candidates for the Senate a FAIR
AND PROPER election?
(xxvi) Were the Candidate handbooks containing fair and misleading timetables as to the
relevant legislative provisions of each State in regard of Senate elections denying
electors/candidates for the Senate a FAIR AND PROPER election?
(xxvii) Was it lawfully within the powers of the Australian Electoral Commission to deny
people to be accepted as candidates for Senate election, despite that such person
within its State legislative powers still had up to 2 days of nominations left,
because of the defective writs stating otherwise?
(xxviii) Were the Senate elections (its polls) held on 10 November 2001 FAIR AND
PROPER?
(xxix) Were the House of Representatives elections held on 10 November 2001 FAIR
AND PROPER?
(xxx) If the Proclamation signed by the Governor General on 5 October 2001 but firstly
published on 9 October 2001 was defective and so ULTRA VIRES in regard of
prorogue the Parliament and dissolving the House of Representatives, then were
all seats vacant by virtue of Section 20 & Section 38 of the Commonwealth
Constitution, where not a single member attended to the last 3 months of sitting
days?
(xxxi) Where the framers held that political rights are obtained “arise by virtue his
being a citizen of a state” there is “dual citizenship” being both “State
citizenship” and “Australian citizenship”, then can the Commonwealth, for so far
this is deemed to be within its legislative powers grant any person Australian
citizenship and so political rights of voting (See section 41 Commonwealth
Constitution) in Commonwealth elections? If such voting rights in
Commonwealth elections can’t be given is that then a bar to granting Australian
citizenship?
(xxxii) Does a person upon obtaining State citizenship AUTOMATICALLY obtain

“Australian citizenship”? If not, why not?
(xxxiii) Can the Commonwealth constitutionally use its own electoral roll and by this
deprive any person entitled to be an elector to be denied the right to vote, for

Page 457
whatever reason by not being on the Commonwealth electoral roll, even so the
person is an elector on a State electoral roll?
(xxxiv) Can the lawfully Commonwealth Electoral Commission conduct State election or
be involved with State elections (other then Senate elections) where such is
beyond the constitutional provisions of the Commonwealth Constitution?
(xxxv) Was any writ, issued by the Governor-General, in conflict to legislative provisions
of the Parliament, defective and so ULTRA VIRES?
(xxxvi) Was any writ, issued by a Governor of a State, in conflict to legislative provisions
of that State, defective and ULTRA VIRES?
(xxxvii) Is the Officer in Charge required to mark of each elector voting for having
voted at each election separately?
(xxxviii) Is it valid in law for the AEC to force a person to vote at the same time for
both the Senate and House of representatives, or is an elector entitled to vote at
separate occasions for each House, within legislated provisions?
Dated the 3rd of Day of December, 2002 (Signed, the Defendant)
This correspondence is not intended and neither must be perceived to state all issues/details.
Awaiting your response, G. H. Schorel-Hlavka O.W.B. (Gerrit)
MAY JUSTICE ALWAYS PREVAIL® (Our name is our motto!)


20190607-Schorel-Hlavka O.W.B. To Joint Standing Committee On Electoral Matters-Supplement 1

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20190607-Schorel-Hlavka O.W.B. To Joint Standing Committee On Electoral Matters-Supplement 1

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Page 1

ADDRESS TO THE COURT

What is an ADDRESS TO THE COURT?

TRANSCRIPT & DENIAL OF REASON OF JUDGMENTS

UNREPRESENTED DEFENDANT A SELF EDUCATED “CONSTITUTIONALIST”

p2 7-6-2019 Supplement 1 G. H. Schorel-Hlavka O.W.B.

Andrei Sakharov, Authority quote: (http://quotes.liberty-tree.ca/quote/andrei_sakharov_quote_30a9)

Alexander Hamilton, Authority quote: (http://quotes.liberty-tree.ca/quote/alexander_hamilton_quote_71c2)

Fredrich August von Hayek, Authority quote: (http://quotes.liberty-tree.ca/quotes_by/fredrich+august+von+hayek)

Robert Lindner, Authority quote: (http://quotes.liberty-tree.ca/quote/robert_lindner_quote_a79f)

Friedrich Nietzsche, Authority quote: (http://quotes.liberty-tree.ca/quote/friedrich_nietzsche_quote_3039)

George Orwell, Authority quote: (http://quotes.liberty-tree.ca/quote/george_orwell_quote_304c)

Lysander Spooner, Authority quote: (http://quotes.liberty-tree.ca/quote/lysander_spooner_quote_654e)

Lysander Spooner, Authority quote: (http://quotes.liberty-tree.ca/quote_blog/Lysander.Spooner.Quote.DEEB)

Voltaire, Authority quote: (http://quotes.liberty-tree.ca/quote/voltaire_quote_312a)

Ludwig von Mises, Authority quote: (http://quotes.liberty-tree.ca/quote/ludwig_von_mises_quote_bca5)

ADMISSION VERSUS CONFESSION

It is only by virtue of his citizenship of a state or of a territory

p4 7-6-2019 Supplement 1 G. H. Schorel-Hlavka O.W.B.

Likewise, any correspondence obtained by the Australian Electoral Commission under a

LEGISLATIVE COUNCIL, 21 November 1991, LOCAL GOVERNMENT

ENROLMENT AND CONDUCT OF ELECTIONS

The Victorian Justice Handbook 1962 page 83:

ADMISSION AND CONFESSIONS.

Confessions may be received in criminal matters. No confession which is tendered in

Comparison between Admissions and Confessions.

1. Civil proceedings. 1. Criminal proceedings.

2. Need not be voluntary. 2. Must be voluntary.

3. May be made by agent, 3. Usually made only by

“DESIRE” to vote cannot be compulsory to vote!

• In 1915, consideration was given to introducing compulsory voting for a

p7 7-6-2019 Supplement 1 G. H. Schorel-Hlavka O.W.B.

Voting as a Civic Duty

The Commonwealth of Australia legislative powers in regard of elections is bound by what is

Hansard 24-3-1897 Constitution Convention Debates

p9 7-6-2019 Supplement 1 G. H. Schorel-Hlavka O.W.B.

(For general comments on its implementation see

3. Each State Party to the present Covenant undertakes:

p10 7-6-2019 Supplement 1 G. H. Schorel-Hlavka O.W.B.

Hansard 1-3-1898 Constitution Convention Debates

Mr. SYMON.-It is not a law which is ultra vires.

p11 7-6-2019 Supplement 1 G. H. Schorel-Hlavka O.W.B.

Mr. SYMON.-It is not a law if it is ultra vires.

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

Mr. GORDON.-It is still the expression of Parliament. Directly a Ministry seeks to

Mr. GLYNN.-That is pandering to the popular cry.

Mr. SYMON.-Why not make them the High Court at once?

p13 7-6-2019 Supplement 1 G. H. Schorel-Hlavka O.W.B.

[start page 1721]

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p17 7-6-2019 Supplement 1 G. H. Schorel-Hlavka O.W.B.

Conduct of the Commonwealth Director of Public Prosecutions in litigation

Lack of responses by Commonwealth Director of Public Prosecutions

In my view, the Commonwealth Director of Public Prosecutions obtained fraudulently a

Sixteenth American Jurisprudence

p20 7-6-2019 Supplement 1 G. H. Schorel-Hlavka O.W.B.

Evidence Act 1958 (Vic)

With or without conviction, order a fine

With or without conviction, adjourn the hearing on conditions

In making such an order, the court would consider:

Convict and discharge

Dismiss the charge