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Page 1 of Chapter 022A INSPECTOR-RIKATI on IR WorkChoices legislation Page 1A book about the validity of the High Courts 14-11-2006 decision

ISBN 978-0-9751760-6-1 (Book-CD), 978-0-9751760-7-8 (Book-B&W), 978-0-9751760-8-5 (Book-Colour)PLEASE NOTE : You may order, any of the published books, by facsimile 0011-61-3-94577209 [email protected]

Chapter 022A Failure of the caseNOTE; Keeping in mind when reading quotations that; COLOURING AND BOLDING / UNDERLINING OF TEXT THROUGHOUT THIS DOCUMENTS HAS BEEN DONE BY THEAUTHOR TO HIGHLIGHT CERTAIN SECTIONS. (Colouring not available in B&W version)

* Gary, do I need to ask if you found any deficiency in the judgments of the High Court of Australiahanded down on 14 November 2006 in regard of the Industrial Relations legislation of WorkChoices purportedly being within subsection 51(xx) relating corporations powers?

**#** INSPECTOR-RIKATI , as you may have gathered from previous Chapters, there were, soto say, black holes in the judgments that I detected and having read the CALLINAN J judgment Imust state from onset that I was pleasantly surprised by the manner His Honour did set out matters,even so I view he omitted to address certain critical issues, His Honour, and I state this term withrespect, in my view did attempt to go through extra ordinary length to make his judgment not justreadable to lawyers but I view to construct it in a manner, as I have done in my already publishedbooks, to make it readable for anyone and avoiding the Reader having to get copies of numerousdocuments just to discover what His Honour was referring to. He too quotes the precise statementor statements he relies upon and this was for me very pleasing in reading.

His Honour also did set out counter arguments, as I tend to do, and by this gives his line of argument to be a more balanced set out rather then, so to say, being one sided.

* So your score is?

**#** I consider the judgments of CALLINAN J, despite various omissions and somemisconceptions, to be worth 8 out of 10 score.

* That high?

**#** Well, you have to understand that his considerable set out of matters, far beyond what I had

expected but being relevant to his argument, must be taken into account against the omissions andmisconceptions. In my view, he is to be regarded as a true constitutionalist, who deplores any abuseof judicial power and appears to me to support the notion that the People are the once who mustcontrol by approval or by VETO what, if any, changes are made to the Constitution.I must admit that this was the first ever judgment I am aware of I read of CALLINAN J, albeit hisown judgment refers to previous comments he had made in regard of the Constitution ConventionDebates, I may add in a positive manner. In my view, the Framers of the Constitution would beproud on how CALLINAN J did argue the case, as while he may have omitted certain issues andmay have misconceived certain issues, in the end it appears to me his intentions were 100% in theright directions. This is the kind of judge I would like to see to be the Chief Justice of the HighCourt of Australia. After all I could not doubt his credibility for one moment to pursue what was theintentions of the Framers of the Constitution, and this is what we need in judges who adjudicate atthe High Court of Australia, and not what may appear to me some political motivated judges whoare somehow coming across to me not the least concerned with what is constitutionally appropriate.

* Gee, that is a bit harsh, dont you think?

**#** Look, I am not going to hide my views where this disastrous judgment affected millions of people. Can indirectly or indirectly wreck the financial future of many, if not hundreds of thousandsthen certainly thousands, as they struggle to get out of financial obligations made while they were ina secure financial area now vandalised by the High Court of Australia decision.


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* You mean vandalised by the Howard IR WorkChoices legislation?

**#** No, because the High Court of Australia could have made clear that it would not allowunconstitutional legislation to be permitted to remain in the books, as it finally did with the CrossVesting Act in the HCA27 of 1999 case Wakim , where I had already for years challenged thevalidity of this legislation to be applied but Dawson J in 1994 and 1005 pursued the usage of thisnow declared unconstitutional legislation.In this document I will not quote all documents such as Is your Constitution Safe by Nick Hobson or the document The Constitution is a PERPETUAL LEASE because of the volume of pages, and so the Reader simply has to check the CD version of this book where those documentsand others are in their entirety included as Chapters. As such, this document is a limited, indeedvery limited document and is not intended and neither must be perceived to set out all matters intheir entirety. Some of the issues canvassed in this document are for example (not set out in anyorder of importance);

The High Court of Australia can set aside the judgment of 14-11-2006 upon the basis of theorders having been obtained by fraud.The High Court of Australia erred in law as it failed to give sufficient consideration to allmatters relevant to the case.

The High Court of Australia erred in law as it gave to much consideration to matters whichought not have been relied upon and/or it failed to appropriately consider those matters intheir correct environment, as such having them taken out of context, so to say.The High Court of Australia exceeded its judicial powers by having relied upon authorities(previous decision) which it knew or ought to have known were in blatant violation of constitutional judicial limitations.Thew High Court of

* Moment Gary, are you saying that those are legal grounds and not just concocted views withoutany kind of credible support?

**#** For your information, I planned this already in 2004, as my correspondence may indicate of which some has been reproduced bin this document.

* But wasnt the Amendment Act regarding WorkChoices not introduced until 2005, so how couldyou then already have worked on a case a year or so before it eventuated?

**#** Because I never had any doubt that the Federal government would be heading this way toundermine the federation by its power grab and seeking unification and as such ensured to makerecords of what I was doing and publish it in previous books as to avoid anyone claiming I justmade it up now after the Federal Government won their case. Do not forget that I used the sametactic when having this 5-year litigation against the Federal government lawyers and succeeded intotal including that all constitutional issues I had raised were left UNCHALLENGED .While the High Court of Australia in Sue v Hill (Not sitting as a court of law but as Court of Disputed Returns ) claimed that progressively over time the Commonwealth of Australia becamean independent nation the Framers of the Constitution rather made the following comment.Hansard 16-2-1898 Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention ) (Chapter 33 of the CD)

Dr. COCKBURN (South Australia).-Quite apart from the question of trade between state and state, is it notnecessary that the Commonwealth itself should have some power for the restriction and the regulation of trade?The words "absolutely free" are infinite in their application, and they seem to me to take away from theCommonwealth the power to restrict and regulate trade within the confines of the Commonwealth.


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What this makes clear is that even the term FREE (section 92 of the Constitution, where in factthere are taxes, in addition of GST being levied.What must be clear is that the word FREE must be interpreted as to the intentions of the Framersof the Constitution as stated in the Hansard records of the Constitution Convention Debates and notbe used in modern times of the meaning of the word FREE.Therefore the meaning of Section 92 having to be construed as to the intentions of the Framers of the Constitution then likewise the meaning of subsection 51(xx) of the Constitution likewise shallbe construed in the same manner. Meanings to certain constitutional provisions are often discoveredin debates about other matters, such as debates regarding subsection 51(i) which also then relate toSection 92, albeit, care must be taken that at the time of the framing of the Constitution theyreferred to clauses as it was a Bill and it does not become a section until it receives RoyalAssent. Also, a clause by various amendments to the Constitution convention bill was goingthrough different numbering stages and generally the now Section 51 was referred to as Clause 52and the current Section 52 then referred to as Clause 53.

Hansard 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention ) (Chapter 33 of the CD)

Mr. DEAKIN .-

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

This underlines that the framers of the Constitution pursued to keep the written text to an absoluteminimum to avoid lawyers to play havoc with the Constitution and judges had to interpret theconstitutional meanings by researching the Hansard records of the Constitution Convention Debatesto discover the true intents of the Framers of the Constitution.As shown below the danger to quote what a judge may have stated AFTER federation is obviouswhere the very judge refused then to allow the usage of the Hansard records of the ConstitutionConvention Debates as to show what the judge actually had stated when framing the Constitution.In my view Griffith and Higgins are examples that what they stated after federation may not havebeen as what they stated while framing the Constitution. As such, I view that where there is a clash

of expressions or a difference then what the person stated at the time of framing the Constitutionshould be regarded as having more validity then being bias as a judge after federation.


Where laws exist at the time of the adoption of this Constitution they will be preserved; but do not let usgive power to the states to make new laws which will create new difficulties and complications.

AndMr. MCMILLAN .-

I do not want to insert in this Constitution a provision which by implication will show a trend of thought of acertain character, to which I need not further refer. I do not want it to be presumed for one moment that wedesire to give to the Federal Parliament the right to interfere in trade disputes and in the ordinarybusiness and commerce of the country. The less the Government has to do with these things the better, and themore clearly it is understood that the Government is not to interfere excepting for the preservation of law andorder the sooner these disputes will be likely to end.

This statement underlines that the wording in the ordinary business and commerce of thecountry. must be deemed to include corporations as unlikely would the meaning of in theordinary business and commerce of the country. have been intended to exclude corporations.

It ought to be considered also that industrial action is not particularly intended to refer to a singleemployee working for an employer but that more then one employee works for that employer.Hence, it would be more likely to relate to a business that is incorporated then being a business of one employee only existing.


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Sir JOHN DOWNER .-I cannot foresee. I cannot pretend to have the gift of prescience which would enable meto know how ultimately a coach and four may be driven through this Constitution. But I say let those who wantlimitations propose their insertion in the Bill. I would prefer to leave the main enactment in this clause exactly asit stands. It may be that the words of Sir Samuel Griffith represent all he can think of. Perhaps they mayrepresent all that can be wanted at any time; but it is just possible that something may be omitted from themsomething which might derogate from this freedom of trade which we intend to have throughout theCommonwealth, Then, I ask honorable members to consider this: Although the clause says that trade andintercourse throughout the Commonwealth shall be absolutely free, you have to look through thisConstitution at the other provisions, which show clearly what is the intention. This is a broad centraldeclaration; the rest you gather from a perusal of other provisions of the Bill.

Again;Although the clause says that trade and intercourse throughout the Commonwealth shall be absolutelyfree, you have to look through this Constitution at the other provisions, which show clearly what is theintention. This is a broad central declaration; the rest you gather from a perusal of other provisions of theBill.

As such even trade and commerce remains conditional upon other parts of the constitution.As a self-educated grand master constitutionalist, I have therefore a good understanding aboutcertain constitutional matters and must admit that you displayed a good sense of understanding whatfederation was about. The quotation above, at least in my view, would have enhanced yourargument, and indeed many other simular statements can be found in the Hansard records of theConstitution Convention Debates.The joint judgment referred to;The question was whether it also was a law with respect to corporations of the kind described in s 51(xx).

Griffith CJ, who was in the majority, said [12] :"It is common ground that [the relevant sections of the Australian Industries Preservation Act ], as framed,extend to matters relating to domestic trade within a State, and the question is whether the power to make lawswith respect to 'foreign corporations, and trading or financial corporations formed within the limits of theCommonwealth' extends to the governance and control of such corporations when lawfully engaged in domestictrade within the State. If it does, no limit can be assigned to the exercise of the power. The CommonwealthParliament can make any laws it thinks fit with regard to the operation of the corporation, for example, mayprescribe what officers and servants it shall employ, what shall be the hours and conditions of labour, whatremuneration shall be paid to them, and may thus, in the case of such corporations, exercise complete control of the domestic trade carried on by them."

However it omitted to use this clarification;Hansard 6-4-1891 Constitution Convention Debates (Official Record of the Debates of the National AustralasianConvention ) (Chapter 33 of the CD)

Sir SAMUEL GRIFFITH: I confess I feel very great doubt whether the provision should or should notbe put in here. I do not think the hon. member, Mr. Kingston, has removed the difficulty that I felt as to itsbeing an interference with property and civil rights. Does the hon. member mean that a court of conciliation might direct that the wages of workmen should be raised?

Mr. KINGSTON: That is a question of detail!Sir SAMUEL GRIFFITH: It is a question of principle. Does the hon. member mean matters of principle

like that, because that might entirely depreciate the value of property in a state, or drive an industry out of


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a state? From that point of view, my vote will be determined in the matter. I think, much as I desire to getthis power for the federal parliament, that we ought to hold fast by the principle that we are not going tointerfere with the rights of property in the states.

Again, a shame that none of the judges took any consideration as to the issue that employment of aworker entered into was on the basis of a State contract within the civil rights of a person withinState laws where as corporations powers was dealing with registration of corporations legislative

powers provided to the Commonwealth of Australia and nothing to do with civil rights contracts.Indeed, as the joint reasons pointed out;Such little debate about the corporations power as there was at the 1891 Convention focused upon whether thatpower should be extended, like the banking power, to the registration or incorporation of companies. Sir SamuelGriffith's response [141] was:

"What is important ... is that there should be a uniform law for the recognition of corporations. Somestates might require an elaborate form, the payment of heavy fees, and certain guarantees as to thestability of members, while another state might not think it worth its while to take so much trouble,having regard to its different circumstances. I think the states may be trusted to stipulate how they willincorporate companies, although we ought to have some general law in regard to their recognition."

As this reveals, the concern then being addressed was very narrow.Again;

is that there should be a uniform law for the recognition of corporations.

With my extensive research in the Constitution Convention Debates this was all along myperception, that it was only dealing with registration ( for the recognition of corporations ) upon auniform basis as to avoid different State conditions but nothing to do with attempting to interferewith the civil rights of a person to enter in a work contract with an employer. Also, the draftingcommittee would often deal with matters decided in smaller committees and as such not subject tomajor debates on record.

HANSARD 27 -1-1898 Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention ) (Chapter 33 of the CD)

Mr. SYMON: I think that every dispute is local to the State in which it originates.Mr. BARTON : If they arise in a particular State they must be determined by the laws of the place where

the contract was made.Mr. SYMON : No doubt. There is another point I wish the hon. member to consider. You are not going to

interfere with the laws of the States dealing with contracts. If the Federal Parliament deals with disputes it will behampered by the varying laws relating to master and servant which may exist in the different colonies. If anindustrial dispute in several colonies were treated as one it could not be dealt with as an ordinary dispute, but the

laws of each separate State would have to be taken into consideration. Now that would be, I think-so it strikes mymind at present-a difficulty hard to be overcome. At any rate, what I am dealing with is rather the generalproposition that is put in this amendment, not the language of it, but the general proposition, and if you are togive the Federal Parliament power to deal, as my honorable friend puts it, with industrial disputes -I will leaveout the subsequent verbiage-I for one cannot see where the limit of its operation will come in. You give it aweapon which might be used according to the dominant majority in the Federal Parliament for the moment in away we would not like. You are intensifying the possibilities of bitterness-that is to say, if they avail themselvesof this power-without seeing the benefit that is likely to arise. I desire to emphasise the [start page 790]observation made by Mr. Deakin. It would be impossible to say at what time

the overflow into the adjoining State begins and ends. If the Federal Parliament is to decide-And


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Sir EDWARD BRADDON (Tasmania).-This amendment does not hand over to the federal power the entire dealing with industrial disputes overthe whole of the Commonwealth, but only over so much of the Commonwealth as may be affected by thosedisputes. It therefore imposes upon the various states the necessity for having courts of conciliation andarbitration to deal with the matters affecting their states only. That seems to me to be an admission of theprinciples principle which I think must be admitted in the present circumstances-that anything whatever in thenature of government or administration which can be better dealt with by a state than by the Commonwealth shall

be left to the state. I claim Mr. Deakin's emphatic indorsement of that principle, and I claim his vote, because hisvote if he goes with me will affirm the principle. It surely must be better for the employees that their disputesshould be settled by courts which know all the circumstances, which understand the condition of things best, thanthat they should be settled by possibly a distant tribunal which is ignorant of the environment and particularconditions affecting any industry in any one of the states. We have heard to-day something about the fixing of a rate of wage by the federal authority. That would be an absolute impossibility in the different states.

AndSir EDWARD BRADDON (Tasmania).-

We have heard to-day something about the fixing of a rate of wage by the federal authority. That would bean absolute impossibility in the different states.

AndMr. BARTON : If they arise in a particular State they must be determined by the laws of the place where

the contract was made.

Section 109 of the Constitution does provide that where State law is inconsistent withCommonwealth law then Commonwealth law shall provide, however it does not State that Coloniallaws likewise are subjected to the same. Therefore State laws that are enacted AFTER federationare subject to subsection 109 but Colonial laws enacted before Federation remain to be valid in lawbut cannot be amended once the Commonwealth has commenced to legislate upon this matter.There are however serious matters to be considered. Where the High Court of Australia made timeand again certain decisions, which based upon those decisions State legislated and now the High

Court of Australia suddenly in their, so to say, CRYSTAL BALL saw powers it never saw before,against the body of language used by the Framers of the Constitution to indicate, such as in regardof bounties, that it could continue to do so in regard not just of individuals but also regardingcorporations where it remained internal matters then one would hold that either the Framers of theConstitution themselves didnt known what they were talking about or it may be held that theJudges of the High Court of Australia dont know what they are talking about with their sudden, soto say, CRYSTAL BALL revelations, then how does this eventuate with the provisions of theConstitution?The first thing is to consider is, that as set out below Section 109 does not invalidate Colonial laws .Therefore within section 107 they are and remain preserved. Section 109 relates to State legislation,which is after federation, whereas Section 107 relates to both Colonial and state legislation. We

therefore have to consider that if a State upon the decisions of the High Court of Australia legislatedafter federation as to amend or repeal such colonial laws to have it party or wholly substituted withState legislation where the state genuinely believed that upon the High Court of Australia decisionsand/or so the VETO power used by the electors themselves within section 128 of the Constitutionthen where the High Court of Australia now reverse its past decisions the States nevertheless arenow robbed of their colonial laws because they were amended since federation or that the HighCourt of Australia will regard it that as the amendment/repeals were subsequently to their , so tosay, ill conceived past decisions then the colonial legislation as existing at the time of federation forso far as repealed/ amended must be regarded not to have been so. To do otherwise would rob theStates, who may have legislated upon the decisions/finding of the High Court of Australia of theirconstitutional powers/rights because of the, so to say, ill conceived decisions of the past by the High


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Court of Australia. Surely, the Framers of the Constitution never intended to do so? Indeed, not toallow the re-instatement of those colonial laws would result that no one could avail himself to thecredibility of the High Court of Australia as to its competence to make appropriate judicialdecisions without perhaps contemporary political motives as to misguide/misdirect States as totheir constitutional powers to get them to act and then later use this action to hold their coloniallegislation (because of their State legislative amendments) no longer is valid because of Section 109where as had the States not gone along to accept the High Court of Australias decision it may neverhave amended/repealed its colonial laws. Indeed, one then can ask, for example, where the State of Victoria is a listed COMPANY on the New York Stock exchange, if then the State, havingpurportedly amended its own constitution with the Victorian Constitution Act 1975 no longer thencan rely upon its own 1975 constitution!Also, if this therefore can unfettered give the Commonwealth of Australia to basically decide everyaspect of corporation life of the State Governments and so can nullify the existence of the Stategovernment. After all, it cannot be argued that somehow corporations powers found, so to say, inthe CRYSTAL BALL does apply to some but not all. Indeed, the Commonwealth legislativepowers is bound to be for the whole of the commonwealth and cannot therefore exclude parts of States, being it State government or otherwise.Also, where a State has (if it is validly done so that is) referred legislative power of a State then as

the Framers of the Constitution made clear the commonwealth of Australia is to make a special levyagainst that State for the cost of this legislative powers to be acted upon. After all, why shouldtaxpayers be burdened with the financial cost of running the matters within the referred legislativepowers of another State while having to pay for their own as well. The Framers of the Constitutionmade it clear that the Commonwealth of Australia would then have to provide for a special levy tohave the State that referred legislative powers regarding a certain matter pay for thisadministration.

There is another issue that should not be overlooked.We now have ample of companies that are now changing how they conduct their business affairsconsidering the High Court of Australia, so to say, CRYSTAL BALL found constitutional powers

in regard of subsection 51(xx) as it did about the Australia Act 1986. Now, many companies sincehad altered their arrangements with workers, even sacked them, and if now by hindsight the HighCourt of Australia were to re-consider its position and found that because the, so to say, CRYSTALBALL was clouded and their tea leaves in their cups were not showing the kind of reading that atthe time they had perceived to do in regard of what constitutional powers were about, then wherethe High Court of Australia then reverses its 14 November 2006 decision regarding the AmendmentAct (WorkChoices ) and find that subsection 51(xx) is restricted to registration of companiesand their conduct as a corporation but not referring to the industrial issues governing how itemploys workers there could be a flood of legal actions by workers who then will argue that theywere unconstitutionally and illegally robbed of their income. Many companies who may have actedupon the validity of the High Court of Australias decision of 14 November 2006 then could be

send broke as the laws they thought no longer applied, and hance reduced wages as permitted by thenew purported legislation, turn out to be still legally applicable.Could it be held that therefore during the time the High Court of Australia had its ill-conceived judgment standing that constitutionally the State legislation remained on foot and so remains legallyenforceable. If not, could it mean that the High Court of Australia upon ill-conceived decisions cantemporary suspend the application of constitutional provisions and later re-instate it? To allow forthis would make a mockery of the Constitution as no one could avail himself to what isconstitutionally applicable, as it would depend upon the political appointment of judges how theythen decide from time to time their cases.


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The legal implications are enormous with ill-conceived High Court of Australia decisions and forthis every Australian (naturalised or not) who have employment in the Commonwealth of Australiais entitled to hold that the High Court of Australia did at the very least a very shoddy job in handingdown its 14 November 2006 decision regarding the purported WorkChoices legislation withouthaving first, as I did, extensively researched all related matters governing the matters before theCourt.A simple manner to research a particular issue is that a person who has access to the electronicversions of the Hansard records of the Constitution Convention Debates has it on a computer anddoes the following;

The computer operator go to the program search/find and type in the word required to befound in the Hansard records of the Constitution Convention Debates, being it preserved,company, retrospective, British subject, citizenship, etc, etc.Now, technology happens to be that then the computer will in a few minutes list all days onwhich the Framers of the Constitution during the Constitution convention Debates used theparticular word one had in the search.Then one open up a particular page and do the same search/find again and there it comesup time and again.

In case judges of the High Court of Australia have a problem to access the internet to get to theHansard records of the Constitution Convention Debates, it is in fact listed in Chapter 33 of mybooks on CD/DVD so the Readers can check out the entire debates, and so if I did not take out of context the quotation I relied upon.As I did provide on the day of publication the High Court of Australia with 4 copies andsubsequently about 4 weeks later provided another 4 copies then clearly the Court had everyopportunity to check out the Hansard records of the Constitution Convention Debates.Considering that Mr Peter Hanks QC for the Commonwealth of Australia stated;

The researches of counsel have been unable to find provisions using similar 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.

Yet despite this thousands upon thousands of usage around the world is found by a simple search onthe internet, as I then already established, it appeared to me that the researches employed by lawyersmay not master technology and so perhaps neither the internet and as such providing it in Chapter33 of my books I avoid researches that may be employed by the Court, so to say, having to pulltheir hair out because of their inability to use the internet, and have it nicely dished up for them.Whatever might or might not be applicable, still judges are appointed specifically to deal withconstitutional issues and I view there is no excuse therefore for any judge not to have bothered(through his researches or otherwise) to check out how the Framers of the Constitution used theword company , preservation , retrospective , British subject , factory law , citizen ,citizenship , and for that also empire , kingdom , republic , independence , subject of the British crown , constitution , etc, etc.


The Hon. J.H. CARRUTHERS: Look at sub-clause 25, which says:

The service and execution throughout the commonwealth of the civil and criminal process, and judgments of the courts of the states.

The Hon. Sir J.W. DOWNER: But it must be in respect of a matter over which the court has jurisdiction.


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Mr. SYMON: Suppose you change the domicile!

The Hon. Sir J.W. DOWNER: That will not operate to give jurisdiction. I think that when we have given themost sacred of all relations-the, relation of marriage-over to the commonwealth, and very properly, it follows, asa matter of course, that we must do this. Parental rights-that is all we propose to give to the commonwealth.The commonwealth parliament can make a definition and pass a uniform law.

Mr. SYMON: That is incident to the marriage law!

The Hon. Sir J.W. DOWNER: It comes from the marriage law, and ought to flow as a corollary. It is acorollary as far as marriage is concerned.

[start page 1085]

The Hon. R.E. O'CONNOR: It would not necessarily follow the law of husband and wife!

The Hon. Sir J.W. DOWNER: We are only talking about parental rights; that is the right of the parentover the child!

The Hon. J.H. CARRUTHERS: If the hon. and learned member is willing to hand over the rights, whynot the obligations?

The Hon. Sir J.W. DOWNER: If the hon. member would like them added I have no objection; but if the hon.

gentleman wants to exclude them, I cannot see that any difficulty need arise. So far as I know, the laws of all thecolonies are exactly the same in respect to the matters mentioned here, and there is very little probability of theirbeing any different, so far as parental rights and the custody and guardianship of infants are concerned. We wantto prevent the possibility of any difference, that is all, and to give the federal parliament power to legislateon the subject if they please. I can see difficulties that might arise in the enforcement of state laws throughthe child or infant being taken away from the custody of its parent or guardian, and being out of the jurisdiction of the court of the state in which the parent or guardian resides, and I think it is necessary tohave one uniform law on this matter as well as in regard to marriage and divorce.

The Hon. J.H. GORDON (South Australia)[3.59]: I think we are quarrelling about terms and not aboutsubstance. I believe that the hon. member, Mr. Carruthers, agrees with almost everyone of us that asregards parental rights and the custody and, guardianship of children so far as divorce is concerned,power should be given to the commonwealth; but this clause goes much further and includes the whole

region of, parental rights and the custody and guardianship of children.The Hon. E. BARTON: Put in the words "and in relation thereto" before "parental rights "!

The Hon. J.H. GORDON: That will cover the whole ground. All our acts relating to the custody andguardianship of children have relation to parental rights.

Mr. SYMON: Suppose a child is deserted?

The Hon. J.H. GORDON: That suspends the parental custody; but the parental liability remains. I thinkthat the amendment suggested by the hon. and learned member, Mr. Barton, covers the whole ground.

The Hon. E. BARTON: I move:

That the figures "24" be omitted with a view to the insertion of the words "and in relation thereto."This will confine the operation of the subclause to the rights and obligations arising out of divorce suits.

The other matters to which attention has been directed will be considered by the Drafting Committee.

Time and again I notice that the High Court of Australia refers to International law and also Britishdecisions but there is a gross defect in them doing so. As the Framers of the Constitution madeclear, time and again, they did not desire to use any particular Constitution but desired to designtheir own and pick what they considered the best of all Constitution and mix it with a blend of Australian flavour. This is in particularly highlighted in the usage of Subsection 51(xxii) referringto parental rights no other constitution had used. Likewise its intentions with subsection 51(v)and not otherwise was to include whatever would eventuate in future with modern technology in


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that field, and they made clear they didnt want to follow the USA system of havingtelecommunication in private hands! Hence the sale of Telstra is and remains unconstitutional andlikewise the operations of private telecommunication companies in the Commonwealth of Australia.The High Court of Australia cannot have it both ways, to disregard constitutional provisions whereit is against the conduct of the Federal Government but enforce it where it is in favour of theFederal Government.

I might not be a lawyer but no one could argue that throughout my books that are published I havenot shown a display of law enforcement being it what is constitutionally appropriate. And, yet I findthat the many of the decisions of the High Court of Australia are, so to say, stinking like rotten eggsrather then having the flavour of JUSTICE . Whatever, so to say, the Court is cooking up I think they need to have an health inspector checking their facilities as it is heavily contaminated whateverseems to come out of their kitchen that spoils the appetite of those who are to consume it, except forthose who lack the taste for JUSTICE .

One can go to a kitchen and have a meal prepared in the utmost crisp environment and have themeal decorated in the most attractive manner yet when it is served at the table the person presentingit could stink a mile against the wind, so to say, and no matter what effort was done to make up themeal it all might in the end been a waste of time and effort. Therefore, it is not necessary thatresearched of the Court might not have done their utmost pest to assist a relevant judge, but it mightbe that the bias of a judge may have resulted that presenting the judgment excluded many thing thatthe researches may have prepared but were never in the end included. As such the judge may havecontaminated what was prepared to be presented. Sure, ultimately this is the right of a judge todecide what is in and what is out but surely then it would be absurd for a person like Mr. PeterHanks QC to blame his researches for something he himself could have established within a fewminutes to be correct or not. all he had to do was to type in a search shall be not less than and hewould have found thousands upon thousands of references.If I as an unrepresented party can manage to get legal matters sorted out in that regard then surely itis an absurdity to accept that a Queens Counsellor can excuse himself by blaming the researches,yet, when this came before the High Court of Australia it was argued by Mr Peter Hanks QC that itwas not relevant.To me it is very relevant if a lawyer deceives the Court as he did in many other ways.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 rulethat not less than so many days refers to clear days unless the context or the statutory intentionreveals a contrary intention.

END QUOTEHis quotation is again false and misleading!

Mr Peter Hanks QC quoted of the judgment the following;QUOTEunless the context or the statutory intention reveals a contrary intention

END QUOTEThis ought to be;

QUOTEunless 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 forthe Court to deal with a statutory intention versus subject matter .


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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 atleast 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 lessthan or shall not be less that . As such this statement by Mr. Peter Hanks QC for the AustralianElectoral Commission was a fraudulent statement. Likewise other statements were found by me 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 reallywas on about.As the authority stated:

The notice actually served did not "specify" such a period: it "specified" a period whichwas too short by one day , and the Acts Interpretation Act does not affect this position.

Mr Peter Hank QC didnt argue that the authority wasnt relevant, to the contrary he argued itsrelevance only by misrepresenting how it applied and what the authority really was on about. Assuch, it had nothing to do with within as Mr Peter Hanks QC argued as clearly the usagewithin was in a different context and not at all as Mr Peter Hanks QC sought to imply and didimply. 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 toworry about the means as long as it achieves his end results.

Because Aboriginal affairs gives me an opportunity to set out better matters regarding the usage of the various legislative powers of the Commonwealth of Australia I will use this to some extend andthen bring it back to industrial relations, and as such the Reader must remain spell bound, so to say,to follow my reasoning.Hansard, 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National AustralasianConvention ) (Chapter 33 of the CD)

Sir SAMUEL GRIFFITH:One of them is to deal with the affairs of people of any race with respect to whom it is deemed necessary to makespecial laws not applicable to the general community ; but so that this power shall not extend to authoriselegislation with respect to the aboriginal native race in Australia and the Maori race in New Zealand.

This related to Subsection 51(xxvi) as to race legislation.The amendment in the con-job referendum in 1967 to delete the reference to Aboriginals insubsection 51(xxvi) with its subsequent legislation had the effect;

Hansard, 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National AustralasianConvention ) (Chapter 33 of the CD)

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 thehonorable member intends that. There is power by law to regulate the people of any race requiring speciallaws. There may be some purely regulative law passed, not imposing any special restriction on any person of thatkind who may be a subject of the Queen . That regulation, if it were of the mildest character, under thisdefinition, would deprive him of his rights.

The Racial Discrimination Act 1975 by this has the effect that all persons in the Commonwealth of Australia by this lost their citizenship/franchise!


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See also Chapter 021H Aboriginal constitutional issue.What we have therefore is that, at least to me, it appears electors are conned in voting in areferendum unaware to the true constitutional construction of the application of certainconstitutional provisions, and if anything the 14 November 2006 judgement regarding theWorkChoices legislation underlines that even the judges themselves over more then one hundredyears did not appear to understand/comprehend how subsection 51(xx) really applied. Yet, despitethis admission the judges nevertheless do not even bother to check out what is recorded in theHansard records of the Constitution Convention Debates as to the usage of the terms so important tothe case being it company factory law State sovereign rights etc. At the very least one wouldhave expected that the judges concerned claiming that it was done for so long wrong should beextra careful for themselves not to compound problems by ignoring to first elicit from the Hansardrecords of the Constitution Convention Debates what really was intended with the term corporationsand how it was considered.

Numerous references were made by the Framers of the Constitution that the internal workings of aState was to remain with the State and as such it is evidently clear that the corporations powerswithin subsection 51(xx) was never to be more then the general registration and conduct of corporations as a corporation in management style and not at all involve the nots and bolts, so tosay, of how shop floor workers earn their crust. Indeed, the fact that the Framers of the Constitutionstated that the States retained their factory laws and that disputes were to be considered upon Statecontracts, etc., itself underlines that subsection 51(xx) was limited to the organization of companiesand had nothing to do with how workers were employed. Indeed, the fact that the Commonwealthof Australia had no constitutional powers to deal with religious aspects in itself underlines that Statelaws were the only once to prevail. If in time Australia turn into some other religion as its generalusage and Christian public holidays become unsuitable then it would be beyond the powers of theFederal government to interfere with religious public holidays where as the States still can legislatewhere it comes to religion but on the other hand by the Commonwealth of Australia having invokedlegislative powers cannot do so because Section 51 does not allow the States to legislate uponmatters once the Commonwealth of Australia has commenced to do so. It means, that neither the

States or the Commonwealth of Australia can legislate any further in regard of religious holidays,an total absurdity. We then have a vacuum of legislative powers!Neither can it be argued that the Commonwealth of Australia somehow can legislate as to religionunder its subsection 51(xx) powers as to allow this vandalise the intentions of the Framers of theConstitution and the constitutional concept embodied in this new Magna Carta.What will however eventuate is, that where it comes to workers who do not work for a corporationthey can benefit of State legislative provisions where as workers performing the same job but theiremployer happens to become a corporation then they have a different level of standards and we willhave for this two classes of employment. Any employer could upon his wimps destroy the securityof a worker by switching to another system and this would workers in a precious position that theircontracts, such as purchasing a residence, is jeopardized.

Such industrial vandalism caused by the High Court of Australia decision cannot be allowed tostand. It is no more then providing for corporate greed and not at all considering the sovereignrights of the States to manage their own internal affairs as they desire. Irony is that in this case Icannot specifically blame the current Federal Government for its ill conceived WorkChoiceslegislation as I view they are entitled to legislate upon what they deem constitutionally permissiblebeing it that I hold each and every member of parliament to be held accountable as a representativeof the constituency for failing to appropriately care for their constitutional rights.As I have indicated in the past published books, the constitutional set up in the Commonwealth of Australia is totally different then that which applies in the United Kingdom. A clear example is thatthe so called Henry the VIII powers to amend legislation by the government of the Day does notexist in the Commonwealth of Australia.


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Also, while a Minister of State in the UK has unlimited powers within his portfolio, to the contraryin the Commonwealth of Australia a Minister is bound within what is for the peace, order, andgood government and so are the powers of the Federal Parliament limited to this. The Britishparliament did not have a constitution that dictated the usage of Ministerial powers and indeedparliamentarian powers where as the Commonwealth of Australia can only operate within thepeace, order, and good government and also that it must follow the dictated regime that theparliament legislate and the Federal government cannot enforce any self dreamed up amendmentsas like the Henry the VIII powers as it is prohibited in the constitutional structure of theCommonwealth of Australia. Hence the government exclusion of islands of Migration territorywas unconstitutional regardless if the Federal parliament later legislated for this to be part of legislation and the Federal Parliament in fact unconstitutionally provided for the exclusion of anyparts of the Commonwealth of Australia for migration purposes is and remain unconstitutional andas such also any action taken against refugees on the basis of the purported exclusion.It is the High Court of Australia, as I view it, in its corrupted decision that is really to be blamed.Time and again it has allowed the Commonwealth of Australia to infringe upon constitutionalprohibitions and limits disregarding totally what the Framers of the Constitution intended.The Pacific Solution, the ADMINISTRATIVE DETENTION and numerous other decisions to mereek, if not stink, to political manoeuvring by the Court to undermine the proper application of

constitutional powers and limitations. Now it appears we going to have a CARIBBEAN decision inhuman trading between the Commonwealth of Australia and the USA. In my view so that if anyfurther refugees arrive from Papua New Guinea then they be transported to the USA as not toembarrass the Indonesians. Just that I view this is not a power for the Commonwealth of Australiato deal in human bodies trading, as while it may have constitutional powers to deal withimmigration, migration and aliens nothing can justify a human trade. It is akin to the slavetrade only now using a different terminology. I doubt the High Court of Australia will bother toaddress this issue, even if an application is made, as I only have to look about my section 75(v)matters how it refused those time and again, disregarding obviously the constitutional issues and bythis allowing the slaughter of human beings to continue.


Mr. BARTON .-Now, the preservation of every inch of the shores of Australia from immigration of the kind indicated,except to a certain limited extent, is one of the most desirable powers to place in the Constitution

As the Constitution makes clear the Commonwealth of Australia can only legislate as to the wholeof the Commonwealth and not exclude any part of it, such as is done under the Migration Zone asto purportedly exercise parts of Australia from the migration zone. Regretfully, we also have foundthat the High Court of Australia justified the government of the day to invoke the so called Henrythe VIII powers to make amendments to legislation and then use it and have it enforced withoutfirst having been passed through both Houses of Parliament and given Royal Assent. It would be

sheer impossible to quote in this document all relevant quotations from the Hansard records of theConstitution Convention Debates as this would cause this document to run in several thousands of pages, safe to say that Chapter 33 of the book on CD contains all records and the Reader can forhimself /herself check it out. Whatever the British Parliament may do and whatever the PrivyCouncil may have ruled in certain cases cannot be adapted at all times to the Commonwealth of Australia as there is a total different constitutional set up. The Commonwealth of Australia is notthe overall governing body over the States, because many legislative powers of the States are notexisting in the Commonwealth of Australia.

There is no such thing as the Australian troops to enter a State to break a strike as to doso would be unconstitutional.


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AgainThere is no such thing as the Australian troops to enter a State to break a strike as to doso would be unconstitutional.

There is no such thing as a soldier standing behind a citizen and going to shoot a bullet through anelectors head merely for refusing to comply with Section 245 of the Commonwealth electoral Act1918 refusing to vote, as I did, as it would be beyond constitutional powers to do so, and if anyevidence is needed why such obnoxious conduct could never be tolerated is in the fact that on 19July 2006 I succeeded in the County Court of Victoria to prove that voting is not constitutionallypermitted to be compulsory. As the Framers of the Constitution made clear, any alleged breach of Commonwealth law was to be dealt with by the Commonwealth by having the alleged offenderformally charged (accused) and placed before the relevant State Court and the person be given a judicial decision as to the persons innocence or guilt.

I am not the least interested what Quick & Garran stated in regard of certain issues, as their ownmotivations may have distorted what was in fact really applicable and I rather rely upon theHansard records of the Constitution Convention Debates as to the true intentions of the Framers of the Constitution.Domestic violence was not then meaning a dispute between husband and wife but was thenreferring to a civil unrest involving violence where then the Governor of the State could issue aproclamation for Australian troops to restore order. As such, it had to be qualified within themeaning of the term domestic violence as it then was referred to. A peaceful protest in industrialmatters is not and cannot be regarded constituting domestic violence. It might be injurious toothers, in preventing others to get to work or otherwise being obstructed to perform their normaldaily routines but it is not to be considered domestic violence in the meaning of the Framers of the Constitution.It is not that somehow soldiers are marching into the homes to point guns upon innocentchildren , because their mummy and daddy have an altercation. Sure, we have the AustralianFederal Police already bashing down peoples front doors and pointing weapons upon children andothers in raids within States, and so unconstitutionally, but this does not make it lawful.It is, as I view it, because we have an utter corrupt High Court of Australia that refuses to considerall matters that are relevant to interpretation of the Constitution that so much is being doneunconstitutionally.

I member has said-that it is not desired to raise up a great standing army for our defence from imaginaryenemies .

Well, we have the purported WAR AGAINST TERROR where we have imaginary enemies andwhere innocent people are rounded up and denied their constitutional rights because where the HighCourt of Australia (obviously then not using the Hansard records of the Constitution ConventionDebates) in 1943 purported that the Commonwealth can suspend civil rights in time of war thenall that is needed is to purport there is some kind of war against imaginary enemies.

"Naturally, the common people don't want war, but after all, it is the leaders of a country who determinethe policy, and it is always a simple matter to drag people along whether it is a democracy, or a facistdictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always bebrought to the bidding of the leaders. This is easy. All you have to do is tell them they're being attacked,and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same inevery country."

Hermann Goering, Hitlers' Reich-Marshall, at the Nuremberg trials after WW2.

As the Framers of the Constitution made clear regarding the States;


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Our own police are quite sufficient for the preservation of order within .

Any notion of ASIO and/or Federal Police (under whatever title) roaming around with staff of theimmigration Department to arrest people, like Vivian Alvarez Solon and many others is anabsolute lunacy. In every case the Australian Federal police removes a person from State coilwithout having first obtained a order of a State Court (such as the Bakhtiyari children) then that isno less kidnapping as it would if any other stranger would have done so.

With all due respect to His Honour CALLINAN J, I view about defence power, that subsection51(v) does no more but give the Commonwealth of Australia legislative powers as to regulatearmed forces, not to run an army. Section 69 transferred naval and military forces from thecolonies to the Commonwealth of Australia and then as any other employer the Commonwealth of Australia is entitled to make laws and regulations for its employees. Section 51(xxxv) in that regardreally would not play any part in the issue as the Commonwealth of Australia as the employer hasexisting powers to determine the wages and conditions of those employs, as such also thesuperannuation of its workers, and this was made very clear by the Framers of the Constitutionwhen they debates the transfer of personnel from the colonies to the Commonwealth of Australiathat each could have its own superannuation system and neither was compulsory upon the other.If subsection (xx) was the all out powers as the High Court of Australia now purports it to be then itbasically states that the Framers of the Constitution were wrong in what they stated and what theirintentions were in regard of States having their own superannuation, as the Commonwealth havethis power only, alternatively it must concede that the Commonwealth of Australia has noconstitutional legislative powers to dictate superannuation to anyone not being in employment withthe Commonwealth of Australia at it remains to be an internal State affair.As I have set out below also the various legislative powers the Commonwealth of Australia has, itmust be clear that if the Commonwealth of Australia implements a general power as it purports todo in regard of subsection 51(xx) relating to industrial relations matters then it own position as anemployer is no longer safe and its own workforce is as much then bound by the same generallegislative powers used in subsection 51(xx) as is any other employee. This, also means that any

special provisions the Commonwealth of Australia may have provided to its own military staff inregulations or laws may if in conflict with the general legislative powers use of legislation in theWorkChoices provisions now have to go.Neither can the Commonwealth of Australia apply any taxation exclusion for any of its ownemployees, soldiers or not, as this would be in breach of constitutional provisions that taxation mustbe for the whole of the Commonwealth and the fact that the Commonwealth of Australia asExecutive government employs people cannot give the Federal parliament any additional powersimplied or otherwise prohibited in the ConstitutionHence, I view the Commonwealth of Australia might just discover that they might have opened aPandora Box , or otherwise to say, a can of worms , they wish they had never done.

As I understand it the High Court of Australia (Unable to verify precisely the case as I am lockedout of accessing High Court of Australia files under the edu system seemingly as to prevent me toexpose more of the rot despite this goes contrary to the principle embedded in section 117 of theConstitution) has handed down a judgment that staff of Australia Post can disregard State laws andits delivery personal can drive their motor bikes or other vehicles upon footpaths, regardless of thesafety of citizens.Constitutionally, the Commonwealth of Australia can make laws as to postal services, itsoperations, but nothing in that legislative powers allows it to override State internal laws for thegood of the general community of a State where it does not interfere with the normal exercise of commonwealth services. The fact that Australia post desires to have a person delivering mail on amotor bike itself does not interfere with State laws if the person observes State laws. After all, the


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commonwealth of Australia could not authorise unlicensed persons to drive a motor vehicle in aState as it would be beyond its powers to do so. Likewise it could not override State traffic laws andpermit Australian Post workers to drive onto footpaths as the perils of pedestrians and others as ithas nothing to do with service of the commonwealth, as within the road Traffic provisions thedelivery service can be maintained. What it is about is that the Commonwealth desires to ignoreroad rules for its own financial interest and not for any other purpose. Like how it has closed downgovernment book stores and now one doesnt known where to get a copy of a Gazette and so neitherenable to ascertain what new laws are about. Publication, in my view, therefore does not occur as noone can claim that hiding publications without appropriate facilities for a person to obtainpublications is not a publication at all. Watson v Lee is a clear example of this.What we have therefore is that if within the State road rules commonwealth officers are nothindered at all to perform the delivery service then it is in my total absurdity for the High court of Australia to allow the commonwealth nevertheless ignore the State rights to govern its internalstructure merely because of profit issues.It must also be kept in mind that Australia Post as was enacted at Federation no longer exist.Constitutionally Section 114 denies the Commonwealth to raise any taxes upon commonwealthproperties. As former Telstra sites are flogged of to private purchasers without a change of jurisdiction from Federal to State jurisdiction (consider the POINT NEPEAN dilemma) then

technically local councils cannot charge rates upon properties that were purchases from Telstrawhere they constitutionally that is remain to be Commonwealth Territories. While thecommonwealth may have allowed change of titles from itself to the private purchaser, in real termsdid never occurred as the sovereign of the property for all purposes remains to be theCommonwealth of Australia. This is a very highly technical question and has already beenextensively canvassed by me in previous published books and as such I am not going to occupyfurther pages to state the case again, other then to say that where the Commonwealth of Australiahas flogged of most of the Post offices, then those employed are not in employment of AustralianPost but in employment of the owners of the post offices. Indeed, when I contact Australia Post of mail not being delivered or having been delivered on wrong addresses I am constantly advised that Imust take it up with the private owners of the local post office as it is out of their hands. As such,

the mail delivery is done by people employed, or subcontracted by those owning the Post office butunder the umbrella of Australia Post. It would therefore be a gross abuse of power by theCommonwealth of Australia to allow Australia Post under this cover having people driving theirbikes on footpaths to the peril of the pedestrians and being to terrorise other road users.As like Australia Post offices and Telstra properties, as they are transferred to the Commonwealth

of Australia within Section 69 of the Constitution which does not have until the Parliamentotherwise provides then the flogging of out our crown jewels by the Commonwealth of Australiais unconstitutional. The commonwealth of Australia can legislate to the manner Australia Post andTelstra was to operate where it owned the properties, but no one could sensibly argue thatsubsection 51(v) powers were handed to the Commonwealth of Australia merely nilly willy, as itwas specifically done to ensure that the Commonwealth would have all legislative powers to aid itsownership of the combined postal and telecommunication services. I have no doubt that had theFramers of the Constitution not provided for the postal and telecommunications to be handed overto the federation subsection 51(v) would never have been included as it would have interfered withthe State internal processes. It therefore has resulted that any telecommunication powers other wisepossessed by the Commonwealth of Australia is a spend force where it sold, and sounconstitutionally, Telstra and a large part of Australia Post.Neither do I accept that the Commonwealth of Australia can have its own future funds being itfor future superannuation payments or otherwise, as it goes against the provisions of Section 94 of the Constitution. The Commonwealth of Australia must hand over any monies it has not usedfor Commonwealth purposes.


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* Moment Gary, how then does it provide for superannuation of its workforce?

**#** Not a slush fund, I can assure you. In fact there was a news bulletin that the Department of Taxation is unable to collect superannuations contributions employers have to pay in the hundredsof millions of dollars and that some employers go broke without having paid a cent in thesuperannuation funds, regardless what they deducted from their employees wages.

* Can that be right?

**#** Of course not and this may underline it is all up the creek, so to say. Again, I blame the HighCourt of Australia for this as if it had all along stuck to the way the Framers of the Constitutionintended constitutional provisions to be applied we may never have ended in this constitutionallegal mess. Lets look at the superannuation issue regarding federal employees and considering thatsuperannuation payments, at least where constitutionally permissible, are to be part of theAppropriation Bills. As such, if any employee is entitled to superannuation then the Commonwealthof Australia must pay this monies into a employees nominated fund/account, by this the monieshave been spend for constitutional purposes and as such neither can be deemed to be some surplus.Only the employee then can access that money subject to legislative provisions, which apply toanyone else in the country. After all the Commonwealth of Australia as an employer cannot haveany greater legislative power then any other employer. While I dispute the Commonwealth of Australia to have any general legislative powers to dictate any business to pay 9% superannuationcontribution or something like that, as it certainly does not fall under the provisions of subsection512(xxiii) dealing with invalid pensions and old age pensions, if for purpose of argument we wereto ignore this for a moment then the Commonwealth of Australia cannot have different powers of legislation as the general legislative powers overrule any employers rights. As such, what is goodfor the Goose is good for the Gander , so to say. If a private employer if obligated to pay to theDepartment of Taxation for collection for superannuation funds then the Commonwealth of Australia would likewise be obligated to do so and cannot itself have a slush funds under the title of being a future funds. As any moneys collected by the Department for Taxation cannot be spend butby Appropriation Bill being passed by the Federal Parliament, and in fact taxation laws relating todeductions are in real terms also Appropriation laws, then if the Department of Taxation were tohave the monies in general revenue it clearly is part of this and cannot be paid out to anyone butby the parliament passing Appropriation lBills. It would obviously be absurd for employees havingto await for the Federal parliament to pass special legislation as an Appropriation Bill for the personto be able to draw his own earned monies and essential are his, and for this also I view that theDepartment of Taxation (Tax Department) has no business to deal with superannuation monies.One of my sons is having extra monies from his salary paid into a superannuation funds, yet, for allhe knows the employer may never pay this money to a appropriate body and my son could find outyears later that the moneys were never paid and the employer, so to say, went broke having used uphis monies. Now, what kind of s system is this really, where the Commonwealth of Australia makes

all kinds of devious laws but does not appropriately supervise matters yet through the High Court of Australia seeks to gain more and more powers.As a child I used to have this puppet on a string and when now someone refers to the HighCourt of Australia It reminds me always to this puppet on a string I had as a child.Anyhow, getting back to the superannuation issue, the commonwealth of Australia, as any otheremployer has the right to make regulations for its employees but it cannot invoke powers of theFederal Parliament to provide for laws that override or otherwise undermines general law (for thewhole of the Commonwealth) application. The Commonwealth of Australia must by Section 94 of the Constitution return any surplus to the States and cannot have any future funds.What it can do however is to pay any due superannuation payment into the respectivesuperannuation accounts of the relevant employees and it no longer holds the purse string of the


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superannuation entitlements and as such the money does not float around in some future funds andneither, so to say, can be gambled away by some treasure who desires to make a gambling on thestock exchange and as I understood it lost about 5 billion dollars.

* Excuse me for sounding ignorant, but could not the monies be put into Government bonds and somake it better for the commonwealth of Australia to have monies available?

**#** That is something I have already dealt with in past published books. I see no problem with a

superfund, if so duly authorised by the account holders to invest monies into government bonds, butthat is a total different issue. All moneys in a future funds must be returned to the State withoutdelay unless they are paid into accounts by special Appropriation laws enacted, and monies that area residue of past years cannot be paid into a superannuation fund without Appropriation Bill passedfor this as they were not spend when they had to. To be honest there are numerous otherconstitutional issues I could cover but the best thing Readers can do is to read the books that havebeen published. I think we better now get back to the issue of law enforcement of subsection 51(vi).The maintenance of Commonwealth law (subsection 51(vi) is provided for but not that of themaintenance of State law! The subsection 51(v) therefore must be interpreted in its properperspective and not be perceived that soldiers can invade the streets in the States and have tanksbeing commandeered upon trade unionist or for that matter upon the individuals as in fact theFramers of the Constitution very much outlined what was to be intended with these powers and itsusage of it as some quotes below shows. Granted, for purpose of defence powers the Framer of theConstitution held that then the military could commandeer trains or other form of transport as to beable to move its soldiers and equipment but that is totally different then what the High Court of Australia in its 1943 decision seems to make out of it.QUOTE

809 It is sometimes forgotten that at federation the colonies maintained their own defence forces. Section 51(vi)refers, in terms, to the naval and military defence of the Commonwealth "and of the several States", making clearthat defence is to be exclusively a Commonwealth activity. There is something else however that needs to benoted about this provision. It is that, literally, that is textually exclusively, it appears to contemplate the use of

the military forces of the Commonwealth to execute and maintain the laws of the Commonwealth [1021] , at any

time and in any circumstances. Elsewhere I refer [1022] to statements by judges of this Court to the effect thatconstitutional provisions should be construed with "all the generality which the words admit". The use of military forces, the imposition in effect of martial law in a democracy, except perhaps in times of external threator civil insurrection, is anathema to democracy itself, and yet, if s 51(vi) is to be construed too generally andtextually or literally, and without reference to other provisions of the Constitution, including perhaps that all of the powers are to be exercised to make laws for the good (democratic) government of the Commonwealth, thatresult might conceivably follow.

810 Reliance was placed upon some remarks of Latham CJ in Pidoto v Victoria [1023] for a proposition thatbecause the defence power was not subject to any restriction imposed by s 51(xxxv), nor should the corporationspower be. Pidoto was decided in 1943 when Australia was still engaged in a war that menaced the whole nation.In these circumstances it is easy to see how the regulation as it was then put of "man power" could be closelyaligned with the defence of the nation. It was also a major source of food and raw materials for our armed forcesand their allies. As has been said many times, the defence power waxes and wanes as the danger mounts andfades away. The remarks of Latham CJ in Pidoto were singularly his and obviously greatly influenced by theperils of the times. Decisions made in such circumstances not infrequently are products of them and cannot

withstand the scrutiny of peaceful posterity [1024] .END QUOTEQUOTE

[1021] Section 51(vi) provides:"The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, andgood government of the Commonwealth with respect to:

(vi) the naval and military defence of the Commonwealth and of the severalStates, and the control of the forces to execute and maintain the laws of theCommonwealth".


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[1022] See Pt IV, Div 2 of these reasons.[1023] (1943) 68 CLR 87 at 101.[1024] Another example is Sickerdick v Ashton (1918) 25 CLR 506, decided during the First World War, inrelation to the vexed issue of wartime recruitment. There, legislation was held to be constitutional within thedefence power in its application to a pamphleteer who published some mildly passivist statements.

END QUOTEThe joint judgment statedQUOTE

212 With that background in mind, it was to be expected that a new instrument of government such as the

Constitution would encompass these matters, and do so at several levels. One arm of the defence powerconferred by s 51(vi) is "the control of the forces to execute and maintain the laws of the Commonwealth"; onthe application of the Executive Government of a State, the Commonwealth should protect the State "against

domestic violence" (s 119) [270]. In their work [271], Quick and Garran discussed the concept of "domesticviolence" in s 119 with detailed reference to the decision of the Supreme Court of the United States in In re

Debs [272] which supported the intervention of the federal government in the Pullman Strike to break the strikeby force.

END QUOTEQUOTE

[270] See Re Aird; Ex parte Alpert (2004) 220 CLR 308 at 327-328 [61].[271] The Annotated Constitution of the Australian Commonwealth , (1901) at 964-965.[272] 158 US 564 at 582 (1895).

END QUOTEIt never was intended that somehow the Commonwealth of Australia would have its ownCommonwealth police force arresting people on the street in a State if they were not complyingwith Commonwealth law! It was relating to Commonwealth law strictly relating to the defenceforce to occupy and use defence facilities and not as to use some purported Commonwealth lawagainst so called terrorist as to hold them in detention or otherwise rob them of their civilrights. Any law enacted within the powers of subsection 51(vi) must therefore be a law that relatesto the defence force actual operations and not to civilians who are not engaged by theCommonwealth of Australia as to determine their rights in some imaginary war.

Mr. REID .-If there was a war between two countries , and a cruiser from the one country was approaching theother, you would know that it was not on a visit of brotherly love.

It must be clear that the Framers of the Constitution referred to the defence power as to be usedbetween two countries at war and the imaginary enemy within was not anticipated for this.In my view, a amendment of the Constitution would be required to give the Commonwealth specificlegislative powers in regard of civil rights or better to state the abolition of civil rights in timeof any imaginary war to make it constitutionally valid. Then again, why bother about a referendumand risk that this more then likely would fail if all you need to do, so to say, is to stack the HighCourt of Australia with lawyers who might go along with whatever the Federal government desiresand then the High Court of Australia will manipulate its powers to purport some legislation to beconstitutionally valid despite it never was and any sensible consideration of the Hansard records of the Constitution Convention Debates would bring this out that the legislation is unconstitutional.Subsection 51(vi) in fact was referring to the enforcement of Commonwealth law regardingdefence power and so in event of war and not in peace time other then to enable theCommonwealth of Australia to maintain military bases and other facilities within a State, and othersuch conduct. the protection of the States was provided for so that upon a proclamation of agovernor of a State the Commonwealth forces could then assist in a domestic violence involvingviolence beyond the control of local law enforcement, and no more. If therefore subsection 51(vi)had not included the reference to the States then it would have prohibited the Commonwealthdefence forces to assist a governor of a state in such matters regardless if it was proclaimed.Subsection 51(vi) therefore does no more but to give the Commonwealth of Australia legislativepowers to legislate how to use Commonwealth defence forces if within section 119 of the


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Constitution requested to come to the aid of a State by a proclamation of the Governor of the State.Without subsection 51(vi) referring to the States it could not legislate as to how Commonwealthdefence forces could operate within that State. I maintain therefore that the Adelaide Company of Jehovah's Witnesses Incorporated -v- The Commonwealth [1943] HCA 12; (1943) 67 CLR 116 (14 June 1943) judgment. Was wrongly decided as it interfered with the constitutional guaranteesembedded in the Constitution.If any of the judges had bothered to research the Hansard records of the Constitution ConventionDebates they also might just have discovered some of the following statements;


Mr. GILLIES: The people themselves have undertaken the duty of creating such a force as, in their judgment,would be sufficient to meet any foe that might land on these shores . There is nothing in these resolutions that Ican see that would justify the statement that it is contemplated by any colony, or by any group of colonies,or by any individual, to bring about a standing army of such a kind as that to which the hon. memberreferred-a standing army that might be a menace to the liberties of the people.

Again;There is nothing in these resolutions that I can see that would justify the statement that it is contemplatedby any colony, or by any group of colonies, or by any individual, to bring about a standing army of such akind as that to which the hon. member referred-a standing army that might be a menace to the liberties of the people.

Again;to meet any foe that might land on these shores


Mr. BARTON .-We do not propose to hand over contracts and civil rights to the Federation, and theyare intimately allied to this question.


Mr. BARTON .-We do not propose to hand over contracts and civil rights to the Federation, and they areintimately allied to this question.

AndMr. BARTON .-If the honorable member's exclamation means more than I have explained

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076-Chapter 022A- Colour - p188 Work Choices Issues