130908-G. H .Schorel-Hlavka O.W.B. to Mr Clive Palmer & AEC Re COMPLAINTS

7/29/2019 130908-G. H .Schorel-Hlavka O.W.B. to Mr Clive Palmer & AEC Re COMPLAINTS

1/29

p1 8-9-2013INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD

A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also

Http://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati

WITHOUT PREJUDICEMr Clive Palmer 8-9-2013

Palmer United Party: [email protected],5 ?

Cc: Mr Michael King, Returning officer, JAGAJAGA

Mr Tony Abbott: [email protected]

Mr Kevin Rudd: [email protected]

Australian Electoral Commission [email protected]

Ref: 130908-G. H .Schorel-Hlavka O.W.B. to Mr Clive Palmer & AEC Re COMPLAINTS

Clive,as a mining magnate you may be aware about legislative provisions that for example if a

15 notice is issued upon your companies that requires 14 clear days, but was given less then 14 cleardays then the notice is invalid. Well, I might be using my self declared crummy English andmy wife who obtained her university degree in linguistics some 55 years ago always berate mefor using incorrect English, still it would have been better if people took more notice of me.As you may recall I filed a complaint against what I deemed false/misleading advertising as to

20 vote for Clive Palmer to be prime minister. This, as a CONSTITUTIONALIST I am well awareelectors do not vote for a Prime minister, as it is the prerogative powers of a Governor-General tocommission a person as such. I must give credit to you that immediately after I filed my

complaint with the AEC (Australian Electoral Commission) I no longer heard the add.But as you may also be aware I have for long held the AEC to be incompetent in conducting

25 elections.In 2001 I challenged the validity of the election as well as numerous other constitutional issues,including the issue of compulsory voting, and after a 5 year epic legal battle defeat theCommonwealth on 19 July 2006 in the County Court of Victoria.One of the issues was, again, the time tables. As the Commonwealth Electoral Act requires that

30 polling day shall be held not less then 23 days and no more then 31 days after the closing ofnominations, then this means that the only valid election day to hold the poll is on 14 September2013, where the closing of nominations was on Thursday 15 August 2013. HENCE NO VALIDELECTION WAS OR COULD BE HELD ON 7 SEPTEMBER 2013 AND AT BEST THE

GOVERNOR-GENERAL CAN AMEND THE WRITS TO ALLOCATE A 14

35 SEPTEMBER 2013 POLL DATE OR OTHERWISE WITHDRAWS THE WRITS AND

ISSUE NEW WRITS.

If the writs are amended the pre-polling and postal votes can still be counted but only if the AECdoesnt open them until after the poll on 14 September 2013 is held, and obviously pre-pollingand postal voting is permitted up to the new election date of 14 September 2013.

40

One may ask one selves why on earth the AEC continued its gross incompetence with writsdespite the fact it lost the case comprehensively on 19 July 2006 and never challenged mysubmissions either?
http://c/1a/Election%202013-fed/Http://www.schorel-hlavka.comhttp://c/1a/Election%202013-fed/Http://www.scrib.com/InspectorRikatimailto:[email protected]:[email protected]:[email protected]://c/1a/Election%202013-fed/Http://www.schorel-hlavka.comhttp://c/1a/Election%202013-fed/Http://www.scrib.com/InspectorRikatimailto:[email protected]:[email protected]:[email protected]


2/29




.I understand that you spend a reported $40 million on the election and it may very well be a casethat you could sue the incompetent AEC for the monies, if the election is not relisted for 14September 2013.

5 .Hansard 1-3-1898 Constitution Convention Debates

QUOTE Sir JOHN DOWNER.-I think we might, on the attempt to found this great Commonwealth, just advance one step, not beyond

the substance of the legislation, but beyond the form of the legislation, of the different colonies, and say10 that there shall be embedded in the Constitution the righteous principle that the Ministers of the

Crown and their officials shall be liable for any arbitrary act or wrong they may do, in the same way as

any private person would be.

END QUOTE

15 I will quote below of my submissions to the County Court of Victoria on 19 July 2006 so youcan for yourself establish if indeed it was extensively litigated, albeit keep in mind this is merelya small part of the extensive submissions! Again, the AEC lawyers didnt oppose mysubmissions!

20 constitutionally no candidate was elected to become member of the house of Representatives and

no Senator standing for re-election was validly elected. As the writs refers to law then clearlythe Governor-General intended that the writs would be compliance with the letter of the law! thesheer and utter incompetence of the AEC may just underline how it despite the 5 year epic legal

battle is scandalously ignorant.25

As you may not be aware of, I requested to be appointed to be the Inter-State Commissioner(s101 of the constitution) as there always shall be an Inter-State Commission. many of the illsfor mining companies, as an example, is the lack of proper port facilities, which actually fallsunder trade & commerce and within s100 of the constitution within the powers of the Inter-State

30 Commission, and not being a political football for the government,.Regretfully Kevin Rudd as prime minister in November 2009, and again on 2 July 2013 failed tosupport my request. Mr Tony Abbott was provided copies of the correspondence of 2 July 2013and Mr Malcolm Turnbull, of both as leader of the Coalition in 2009 and on 2 July 2013 also,and I understand his response was in July that he would be looking into the matter. for

35 companies such as in mining it is in my view a matter or urgency, not something to be leftunattended for years and also a constitutional non-negotiable requirement.

Anyhow, as I stated we do not elect a prime minister but despite the election problems theGovernor-General can still commission Mr Tony Abbott to form a government, albeit there is no

40 elected Member of the House of Representatives and unless valid election is held his term (ofcommission and that of others) would expire in 3 months! The Governor-General commissioned

Mr Edmund Barton on 26 December 1900, which was prior to the Commonwealth of Australiacoming into force on 1 January 1901, as such a clear example that the Governor-General has thisconstitutional power.

45

One has to ask why on earth no one bothers to check writs if they actually comply with the legalrequirements. Safe to say that as a Professional advocate I represented Mr Colosimo and thensuccessfully submitted to her Honour Harbison J that no contempt could be pursued against MrColosimo because the report (filed as evidence) failed to be after 90 clear orders, as the order

50 stipulated 90 days, as it was made 89 days and a few hours, as such without legal validity! thatwas the end of the contempt case against Mr Colosimo!
http://c/1a/Election%202013-fed/Http://www.schorel-hlavka.comhttp://c/1a/Election%202013-fed/Http://www.scrib.com/InspectorRikatihttp://c/1a/Election%202013-fed/Http://www.schorel-hlavka.comhttp://c/1a/Election%202013-fed/Http://www.scrib.com/InspectorRikati


3/29




As I understand it the writs issued had:15 August 2013 closing nominations as such 23 days must be counted at conclusion of the 15August and the poll cannot be held until the conclusion of the 23rd day. As such, it is not on the23rd day!

5

Day 1 16 August 2013 FridayDay 2 17 August 2013 SaturdayDay 3 18 August 2013 SundayDay 4 19 August 2013 Monday

10 Day 5 20 August 2013 TuesdayDay 6 21 August 2013 WednesdayDay 7 22 August 2013 ThursdayDay 8 23 August 2013 FridayDay 9 24 August 2013 Saturday

15 Day 10 25 August 2013 SundayDay 11 26 August 2013 MondayDay 12 27 August 2013 TuesdayDay 13 28 August 2013 Wednesday

Day 14 29 August 2013 Thursday20 Day 15 30 August 2013 FridayDay 16 31 August 2013 SaturdayDay 17 1 September 2013 SundayDay 18 2 September 2013 MondayDay 19 3 September 2013 Tuesday

25 Day 20 4 September 2013 WednesdayDay 21 5 September 2013 ThursdayDay 22 6 September 2013 FridayDay 23 7 September 2013 SaturdayDay 24 8 September 2013 Sunday, after which the first Saturday can become polling day!

30 Day 25 9 September 2013 MondayDay 26 10 September 2013 TuesdayDay 27 11 September 2013 WednesdayDay 28 12 September 2013 ThursdayDay 29 13 September 2013 Friday

35 Day 30 14 September 2013 Saturday, first and last available polling date!

Details of the 19 July 2006 court documents can be found in my book in the INSPECTOR-40 RIKATI series on certain constitutional and other legal issues in CHAPTER 03 NOT

VOTING IN BANANA REPUBLIC:

INSPECTOR-RIKATI & What is the -Australian way of life- really?

A book on CD on Australians political, religious & other rights

45 ISBN 0-9751760-2-1

QUOTE 16 November 2005 submissions

ADDRESS TO THE COURT Part 2

INCLUDING SUBMISSIONS50 For 16 November 2005 special hearing

Case numbers T01567737 & Q10897630


4/29




Prepared by the Defendant, Mr G. H. Schorel-Hlavka.

Ref; NV13

5 The ADDRESS TO THE COURT is a document that was designed by myself in 1985, andsince has been accepted for use in legal proceedings (civil and criminal) in the High Court ofAustralia, various Magistrates Courts, Supreme Court of Victoria, County Court of Victoria,VCAT, AIRC, etc. It is designed to give the unrepresented litigant, Litigant in Person a more

fairer opportunity to present his/her case.10 This ADDRESS TO THE COURT is also published in;

INSPECTOR-RIKATI on CITIZENSHIP & Why not voting

A book on CD about ELECTORAL AND CITIZENSHIP RIGHTSISBN 0-9751760-1-3

15 END QUOTE 16 November 2005 submissions

andQUOTE 16 November 2005 submissions

When an election is called, the proclamation must be Gazetted first, before any one can act on it.

20 Hence, the writs cannot be issued until after the proclamation has been actually published.

The formula to establish the maximum clear days priorto the polling day (election day) after the date theWrits are issued, ought to be; The number of days

25 applied under Section 156 + number of days

applied under Section 157 + 1 day (close of

nomination day) + the number of days theAustralian Electoral Commission has its offices

closed for the public/candidates/prospective

30 candidates, with an election on the Saturdayimmediately following the last clear day, and wherethe Saturday isnt the immediate following day thenthe Saturday prior to the total number of days shall be

the last Polling day applied.35

With the 2004 federal election, the election period previously kept at 33 days now was increasedto 35 days, being the actual minimum required. As such, it seems to underline that the AustralianElectoral Commission previously held election 2 days short of the required legislated electoral

period! Precisely as I claimed all along. The problem is that even so having contacted the40 Australian Electoral Commission by email since 20 October 2001 about the failure to provide

appropriate time for holding the election, this at the time was ignored. I cannot help it if the AECconducts elections unconstitutional and/or illegally, but no one can demand that I then go alongcontrary to his objections. The onus was for the AEC to correct the errors and, if appropriate,

have sought to have fresh elections to be issued that would allow for the appropriate time periods


5/29




as required by legislation. As there was a total failure of compliance, the writs issued weredefective and so null and void, and had no legal enforcement. Hence, in that regard also, even ifSection 245 of the Commonwealth Electoral Act 1918 was to be deemed constitutionally valid(not that I concede to this) then nevertheless without valid writs being issued Section 245 does

5 not come into play, and therefore the Court has no legal jurisdiction in that regard either, to hearand determine a charge within the provisions of a non applicable legislation!

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 the10 statutory provision in that case: "substantial compliance with the relevant

statutory requirement was not possible. Either there was compliance or there

was not."

The reasoning of Fullagar J in Clayton v. Heffron (supra) in relation to the provisions of s 5B15 of the Constitution Act 1902 (NSW) is material in this context:

"A manner and form are prescribed by section 5B, and that manner and form must beobserved if a valid law is to be produced. Any prescription of manner and form may berepealed or amended, but, while it stands, the process prescribed by it must be followed.That was decided Trethowan's case and I think that the whole of what is prescribed by

20 section 5B relates to manner and form. It does not seem to me to be possible to say thatsome of the requirements of the section are matters of manner and form while others arenot. The section describes one entire process - a series of steps, one following on another -and only the completion of the entire process can produce a valid law." (Supra at 262)

25 Also, as for the counting of number of days, in regard of the election time table the followingauthority also applies.

Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 445 The true version of thejudgement under 5;

30 That where an instrument prescribes that a period of time may

elapse between one event and another, the words at least, not lessthan and not later than, unless the context or the subject matterreveals contrary intention, should be regarded as indicating that aclear or full period of time must expire between the two events.

35 There is some authority for saying that the use, in a statute prescribing a time limit, of suchexpressions as "at least" and "not less than" indicate an intention that the specified numberof "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

40 Co. (1885) 29 Ch D 204 and Ex parte McCance; Re Hobbs (1926) 27 SR (NSW) 35; 44WN 43).But it is clear, I think, that significance is attached to such expressions as " at least" or "notless than" only in cases where the immediate purpose of the prescription of a time is todefine a period on the expiration of which an act may be done, and not in cases where the

45 immediate purpose is to define a period within which an act must be done. In the formerclass of case the prescribed number of days must elapse between two acts or events. Inthe latter class of case the act must (unless a contrary intention appears) be done before theexpiration 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).

50

Fullagar J in Associated Dominions Assurance Society Pty Ltd v Balford (1950) 81 CLR 161 ,
http://c/1a/Election%202013-fed/Http://www.schorel-hlavka.comhttp://c/1a/Election%202013-fed/Http://www.scrib.com/InspectorRikatihttp://www.austlii.edu.au/au/legis/nsw/consol_act/ca1902188/s5b.htmlhttp://www.austlii.edu.au/au/legis/nsw/consol_act/ca1902188/s5b.htmlhttp://www.austlii.edu.au/au/cases/cth/high_ct/12clr382.htmlhttp://c/1a/Election%202013-fed/Http://www.schorel-hlavka.comhttp://c/1a/Election%202013-fed/Http://www.scrib.com/InspectorRikatihttp://www.austlii.edu.au/au/legis/nsw/consol_act/ca1902188/s5b.htmlhttp://www.austlii.edu.au/au/legis/nsw/consol_act/ca1902188/s5b.htmlhttp://www.austlii.edu.au/au/cases/cth/high_ct/12clr382.html


6/29




7. The first point to observe is, I think, that the word "notice" is clearlycapable of meaning "notification" or "intimation." Indeed, that is its primarymeaning, and it is only in a secondary and transferred sense that it is used

5 to describe a document, which is the means by which "notice" is given orconveyed. In the second place, the argument that the word should be given thesame meaning in all four places in which it occurs in s. 55 is greatlyweakened, if not indeed destroyed, when one looks at s. 146, in which also the

word "notice" occurs four times. In s. 146 it is used somewhat loosely, but10 certainly not in the same sense on all four occasions. Section 146 provides

for service of a "notice" either personally or by post, and it concludes: "andany notice so addressed and sent" (i.e. by post) "shall be deemed to be noticeto that person." Here it is clear that the word "notice" first refers to adocument and is immediately afterwards used as meaning "notification" or the

15 giving or serving of "notice." (at p185)

8. The above considerations are negative, but they serve to remove anydifficulty in the way of giving effect to a strong affirmative reason forconstruing the words in question as referring to the date of notification or

20 of giving or serving the document. That reason is that to construe the wordsas referring to the date which appears on the document could lead to unjust,and indeed absurd, consequences, and could defeat the whole object of the

provision for notice. That object obviously is that the company shall havefourteen days in which to show cause, but, if that construction be correct, a

25 document "dated" 1st May and allowing fourteen days from 1st May could beserved on the company on 15th May. The section would be complied with,although the company might be left with only a few hours in which to showcause. There is abundant authority for construing a statute so as to avoidsuch consequences if the language leaves it possible to do so. It is

30 sufficient to quote the words of Barton J. in Bowtell v. Goldsbrough Mort &

Co. Ltd. (1905) 3 CLR 444, at p 456 . That learned judge said: "If there aretwo possible constructions, one working a manifest injustice and the othernot, then I think the latter construction is the one which should be adopted."It is undeniable, to my mind, that the construction contended for by the

35 company is open on the language used, and, in my opinion, it should beadopted. (at p185)

9. But there is, I think, another reason for adopting that construction. Thatconstruction really does resolve all ambiguity: it makes the position clear

40 and intelligible. The other construction leaves a serious ambiguity in thesection and could give rise to serious difficulties. For, if we say that the

word "notice" refers to a document, what is meant by "the date of the notice"?So far I have been assuming that that expression means the date which thedocument bears or the date stated in the document. But does it mean this? If

45 it does, can the commissioner or his agent insert any date he likes in thedocument? This does not seem likely: a date (say, 1st May) arbitrarilyinserted in a document which did not come into existence until (say) 14th Maywould hardly, one would think, be what the legislature meant by the expression"date of the notice." Or does the expression mean the date on which the

50 document is signed? But there appears to be nothing in s. 55 which requiresthe document to be signed at all: for all that appears, it could be couched inthe third person. Then does it mean the date on which it is drafted or typed
http://c/1a/Election%202013-fed/Http://www.schorel-hlavka.comhttp://c/1a/Election%202013-fed/Http://www.scrib.com/InspectorRikatihttp://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/s55.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/s146.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/s146.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/s146.htmlhttp://www.austlii.edu.au/au/cases/cth/high_ct/3clr444.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/s55.htmlhttp://c/1a/Election%202013-fed/Http://www.schorel-hlavka.comhttp://c/1a/Election%202013-fed/Http://www.scrib.com/InspectorRikatihttp://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/s55.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/s146.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/s146.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/s146.htmlhttp://www.austlii.edu.au/au/cases/cth/high_ct/3clr444.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/s55.html


7/29




or printed, or the date on which the commissioner decides to use it? It seemsto me that these questions really do arise, if the respondent's constructionis adopted, and they are not disposed of by saying that prima facie the dateof an instrument is the date stated in it. If we adopt the other construction,

5 the words used mean the date on which the document becomes effective as a"notice" by being served, and all the difficulties disappear. (at p186)

10. For the above reasons I am of opinion that, on the construction ofs. 55

alone, the notice was defective, and the appellant succeeds. The respondent,10 however, submitted a further argument based on the Acts Interpretation Act

1901-1947. (The Act of 1948 did not come into force until after the materialdate.) The 16th May 1948, the date on which the notice given to the companyexpired, was a Sunday, and s. 36 (2) ofthe Act provides that: - "Where thelast day of any period prescribed or allowed by an Act for the doing of

15 anything falls on a Sunday, or on any day which is a public or a bank holidaythroughout the Commonwealth, or throughout the State or part of theCommonwealth in which the thing is to be or may be done, the thing may be doneon the first day following which is not a Sunday or such public or bankholiday." And s. 46 provides: - "Where an Act confers upon any authority power

20 to make, grant or issue any instrument (including rules, regulations orby-laws), then - (a) unless the contrary intention appears, expressions usedin any instrument so made, granted or issued shall have the same meanings asin the Act conferring the power, and this Act shall apply to any instrument somade, granted or issued as if it were an Act and as if each such rule,

25 regulation or by-law were a section of an Act." (at p186)

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 timeallowed by the notice expired on a Sunday (16th), s. 36 (2) extended the time

30 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. Thecompany, it was said, was entitled to have until that time to show cause. Itdid have until that time. Therefore, it was said, the notice was a good andvalid notice. (at p186)

35

12. I would agree that the combined effect of the notice and ofs. 36 (2) ofthe Acts Interpretation Act is that the company may "show cause" at any timeup 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,"40 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 noticeshall be construed as if the period specified in it expired on Monday the17th, instead of Sunday the 16th. And s. 55 of the Life Insurance Act does say

45 that the notice shall "specify" a period not less than fourteen days fromservice 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 ActsInterpretation Act does not affect this position. The two statutory

provisions, read together, mean simply this: the notice must specify a period50 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 aSunday, the thing may be done on the following Monday. The notice simply did
http://c/1a/Election%202013-fed/Http://www.schorel-hlavka.comhttp://c/1a/Election%202013-fed/Http://www.scrib.com/InspectorRikatihttp://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/s55.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/http://www.austlii.edu.au/au/legis/nsw/consol_act/0/http://www.austlii.edu.au/au/legis/nsw/consol_act/0/http://www.austlii.edu.au/au/legis/nsw/consol_act/0/http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s36.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s36.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/http://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/s55.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/http://c/1a/Election%202013-fed/Http://www.schorel-hlavka.comhttp://c/1a/Election%202013-fed/Http://www.scrib.com/InspectorRikatihttp://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/s55.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/http://www.austlii.edu.au/au/legis/nsw/consol_act/0/http://www.austlii.edu.au/au/legis/nsw/consol_act/0/http://www.austlii.edu.au/au/legis/nsw/consol_act/0/http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s36.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s36.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/http://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/s55.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/


8/29




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 judgmentin the action for the plaintiff in the form of a declaration that the notice

5 is invalid and void, and an injunction to restrain the respondent frominstituting an investigation into the affairs of the company. (at p187)

The real reason for changing Section 383(1), as published by the Parliament on its website.

Electoral and Referendum Amendment Bill (No. 1) 2001 Date Introduced: 7 March10 2001

Background

Since 1983 the conduct of each general election has been examined by a Joint StandingCommittee with the aim of recommending improvements in the electoral process.Following the 1998 general election a review was conducted by the Joint Standing

15 Committee on Electoral Matters, which released its report, entitled The 1998 FederalElection (the Report), in June 2000. The Report contained minority reports from the ALPand Australian Democrat members of the Committee, although both were in agreementwith the majority of the recommendations of the Committee. The ALP minority reportdeals with specific recommendations of the majority while that of the Australian Democrats

20 principally deals with more general principles.

Court ProceedingsRecommendation 56 of the Report is that the jurisdiction for the hearing of an injunctionregarding a breach of the Principal Act be transferred from State Supreme Courts to the

25 Federal Court (currently section 383 of the Principal Act requires such matters to be heardin a State Supreme Court). The reason for the proposed change given by the Committee isthat the AEC has submitted that State Court jurisdiction existed before, and has not beenchanged since, the creation of the Federal Court and it is more appropriate that the FederalCourt determine such matters.(15)

30 The change will be effected by items 57 to 73, which will amend section 383 of the

Principal Act to replace references to State Courts with the Federal Court. Items 50 to 55will amend section 354 to give effect to the recommendation that if the High Court sittingas the Court of Disputed Returns refers a petition to a lower court, then that court also beonly the Federal Court of Australia.

35

A major problem with this is that while the commonwealth has constitutional powers to createcourts and to provide certain legal jurisdiction to the Federal Court of Australia, on the otherhand the snag is that it cannot enforce Commonwealth law against any person, as only a StateCourt can do so against a resident. Hence, what ever legal jurisdiction is provided to the Federal

40 Court of Australia, it still cannot circumvent the fact that the Commonwealth cannot enforce itsown criminal provisions or other laws but through a State Court.

While we have the Family Court of Australia, in reality only the State Court of WesternAustralia is a constitutional legitimate Court as it operates under State laws in regard ofCommonwealth law against any parties. Without a State Family Court of Victoria, we do not

45 have any legislate Family Court. The Family Division of the Magistrates Court of Victoriahowever is a constitutional legitimate constituted Court, but, it must then conduct its proceedingsaccording to State legislated provisions, and not deny a party this State right and conduct

proceedings as the Commonwealth dictates! As clearly DUE PROCESS OF LAW remainswhere a State Court follows State legal procedures while dealing with Commonwealth law. It

50 means, that the doctrine of how legal proceedings are to be conducted under the Family Law Act1975 as to forms and other legal procedures are not applicable in a Magistrates Court unless theState has in fact provided for the same legal provisions to be applied.


9/29




It is here where we have considerable problems, as Section 76 of the Constitution is limited bywhat else is constitutionally applicable, and not at all some free for all power to enable theCommonwealth to side step constitutional requirements by preventing States to conduct legal

proceedings according to State legislation, and so can score a conviction and also side step the5 State constitutional right to NULLIFY Commonwealth law.

Counsel for the CDPP did make known to me that I could have argued electoral matters beforethe Court of Disputed Returns, as Marshall J indicated. However, the truth is that I challenge the

validity of all writs, bot Senate and House of Representatives, and the Court of Disputed Returns10 is on record that one can only dispute a specific writ. Hence, no application to the Court of

Disputed Returns would be possible. Further, for example, if I had made a limited appeal to theCourt of Disputed Returns merely as to contest one writ, then the Court of Disputed Returns, isnot acting as a Court of law per se, having to consider upon legal issues, but simply is acting on

behalf of the Parliament, and not bound by the rules of law, not bound by legal provisions, and15 simply can dismiss any appeal upon the basis that in any event the number of votes I may have

considered to have obtained in the election may not be sufficient to warrant to call a new electionfor that particular electorate. It would not deal with the writ on a State wide basis but could dealwith it relating to JAGAJAGA poll only, even so the validity or invalidity of the writ wouldeffect all polls held subsequently to the writ being published.

20 Meaning, that the true legal problems will not be appropriately dealt with.

McKenzie v. The Commonwealth of Australia and Others 59 ALJR 191 Gibbs CJ:I am by no means satisfied that s. 353(1) of the Act, which provides that the validity of anyelection or return may be disputed by petition addressed to the Court of Disputed Returns

25 and not otherwise, would prevent this Court from interfering by injunction if a challengewere successfully made to the provisions of the Act on constitutional grounds.

PAVLEKOVIC-SMITH v AEC (1993) 115 ALR 641, Dawson J;If a challenge on justiciable grounds can be mounted to the validity of a general election a

30 question that I need not consider such a challenge cannot be entertained by the Court of

disputed Returns. It may be that the High Court has such a jurisdiction but that has not beendecided; see the dicta of Gibbs CJ in McKenzie v Commonwealth.

END QUOTE 16- November 2005 submissions

35 And, on appeal:

QUOTE 19 July 2006 SUBMISSIONSADDRESS TO THE COURT

County Court of Victoria, Case numbers T01567737 & Q1089763040

Your Honour,

Headings (below) are only to give some indications to assist to locate an issue butare not to be taken to limit matters stated below it neither that other matters stated elsewhere arenot relevant.

45

HEARING DIFFICULTIES

From onset I have to set out that I have for decades now suffered a hearing losswhich is more then 25% to each ear and for this I use hearing aids but those appear to generally

50 play up during Court hearings. Without proper functioning hearing aids I lack to hear certainsounds and as such may misunderstand/misconceive what is being stated/asked by others.


10/29




What is an ADDRESS TO THE COURT?

The ADDRESS TO THE COURT is a document that enables the unrepresented Defendant orfor that matter any defendant or litigant to place before the Court in writing what he/she desires

5 to State, including legal arguments, so that the Court can withdraw into chambers and can at itsown leisure consider matters without having any problems as to pronunciations or misstatementsor 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.

10 END QUOTE 19 July 2006 SUBMISSIONS

QUOTE 19 July 2006 SUBMISSIONSAs Defendant I did more then present my fair share of material before the Courts, and yet next tonothing from the Commonwealth Director of Public Prosecutions, and as such merely by the

15 failure to counter act what I had presented to the Court that in itself should have resulted that thecharges never, so to say, had seen the light of day. However, it is in my view that because I amunrepresented the Court rather tag along with the lawyers of the Commonwealth Director ofPublic 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.20 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?

25

A Proclamation, within the provisions of the Commonwealth Electoral Act1918 clearly does not fall within the meaning of electoral matter and assuch neither an Issue that can be pursued before the Court of DisputedReturns.

30 A Writ is an electoral matter when issued. However, if the writ wasdefective then the writ never had any legal force and likewisenever could invoke the jurisdiction of the Court of Disputed Returnsbut remained for all purposes a matter to be resolved by a FederalCourt operating as a Court of Law not sitting as a Court of

35 Disputed Returns.The following as advertised by the Commonwealth Electoral Commission onits website;

Commonwealth Electoral Act 1918

The following relevant provisions on electoral advertising in the Commonwealth40 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 tokeywords of particular relevance.

Interpretation

4 (1) In this Act unless the contrary intention appears:


11/29




..."electoral matter" means matter which is intended or likely to affect votingin 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

5 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;10 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; orf. an issue submitted to, or otherwise before, the electors in connection with the

15 election.

Interpretation

322. In this Part, "relevant period", in relation to an election underthis Act, means the period commencing on the issue of the writfor the election and expiring at the latest time on polling day at

20 which an elector in Australia could enter a polling booth for thepurpose of casting a vote in the election.

NEW SOUTH WALES v_ THE COMMONWEALTH ; QUEENSLAND v_ THE

COMMONWEALTH (1975) 134 CLR 201.

2518. No attack is made in these submissions on the validity or effectivenessof the proclamation of the double dissolution. It is submitted, and in myopinion correctly submitted, in this connexion that the power simultaneouslyto dissolve both Houses of the Parliament and the power subsequently to

30 convene a joint sitting are statutory and not prerogative powers. Thevalidity of the proclamation convening the joint sitting is attacked but thesubmissions to which I have so far referred do not depend on the suggestedinvalidity of the proclamation. (at p219)

Again;

35 The

validity of the proclamation convening the joint sitting is attacked but thesubmissions to which I have so far referred do not depend on the suggestedinvalidity of the proclamation.

40 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 HighCourt of Australia sitting as a High Court of Australia and not sitting as a Court of DisputedReturns.This ought to be obvious as the act to prorogue the Parliament and to Dissolve the House of

45 Representatives are pre conditions to hold a general election but are not part of the electionitself that is managed by the Australian Electoral Commission.


12/29




Hence the ruling by Marshall J on 7 November 2001 that this was a matter for the Court ofDisputed Returns clearly was an error in law.

The Australian Electoral Commissioner Mr Becker, in his sub147parti submission to the JSCEM5 on 16 August 2002 stated;

The Schorel-Hlavka application on the calculation of the election timetable. On 2November 2001, Mr Gerrit Schorel-Hlavka applied to the Federal Court for an injunctionunder section 383 of the electoral Act to stop the election on the grounds that the date for

10 the close of nominations was calculated incorrectly. Mr Schorel-Hlavka contended that theterm not less than 10 days in subsection 156(1) of the electoral Act should be interpretedas meaning not less that 10 full periods of 24 hours. On this interpretation the meaning ofsubsection 156(1), the date set for the close of nominations would have been a day laterthan the one that was relied upon for the election. Mr Schorel-Hlavka argued that the

15 cumulative effect of this alleged error was that polling day could not be on 10 November2001, as proclaimed by the Governor-General on 8 October 2001. Mr Schorel-Hlavkasubmitted 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 the20 general rule that not less than so many days refers to clear days unless the context or thesubject matter reveals a contrary intention.

Many an Appeal were dismissed because an appellant did not file within the time the Rulesprovided for. For example, where an Appellant filed an appeal before statutory an Appeal could

25 be filed. Many other occasions the Court have made clear that time periods provided for areessential. In this case where there are certain constitutional and other legal provisions relevant tothe conduct to publish a Proclamation, the issue of the writs and the time periods governing aelection process then where they are legislative provisions enacted as laws then a citizen isentitled to rely upon those provisions.

30 Therefore if there is a failure to comply with the proper procedures to publish a Proclamationand/or writs showing the legally required time periods then the writs are defective and withoutlegal force.

Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 445 The true version of the

35 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.40

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 thestatutory provision in that case: "substantial compliance with the relevantstatutory requirement was not possible. Either there was compliance or there

45 was not."

Again;"substantial compliance with the relevant statutory requirement was not possible.Either there was compliance or there was not."

50

Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 445 The true version of the

judgement under 5;


13/29




That where an instrument prescribes that a period oftime 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

5 contrary intention, should be regarded as indicating

that a clear or full period of time must expire betweenthe two events.There is some authority for saying that the use, in a statute prescribing a time limit, of suchexpressions as "at least" and "not less than" indicate an intention that the specified number

10 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 SupplyCo. (1885) 29 Ch D 204 and Ex parte McCance; Re Hobbs (1926) 27 SR (NSW) 35; 44WN 43).

15 But it is clear, I think, that significance is attached to such expressions as " at least" or "notless than" only in cases where the immediate purpose of the prescription of a time is todefine a period on the expiration of which an act may be done, and not in cases where theimmediate purpose is to define a period within which an act must be done. In the formerclass of case the prescribed number of days must elapse between two acts or events. In

20 the latter class of case the act must (unless a contrary intention appears) be done before theexpiration 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 161,25 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 timeallowed by the notice expired on a Sunday (16th), s. 36 (2) extended the timeuntil midnight on the 17th. The notice having been served on the 3rd, the timewhich s. 55 required to be allowed expired at midnight on the 17th. The

30 company, it was said, was entitled to have until that time to show cause. Itdid have until that time. Therefore, it was said, the notice was a good andvalid notice. (at p186)

12. I would agree that the combined effect of the notice and ofs. 36 (2) of35 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 allowedby 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.40 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 the17th, instead of Sunday the 16th. And s. 55 of the Life Insurance Act does saythat the notice shall "specify" a period not less than fourteen days fromservice of the notice. The notice actually served did not "specify" such a

45 period: it "specified" a period which was too short by one day, and the ActsInterpretation Act does not affect this position. The two statutory

provisions, read together, mean simply this: the notice must specify a periodnot 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
http://c/1a/Election%202013-fed/Http://www.schorel-hlavka.comhttp://c/1a/Election%202013-fed/Http://www.scrib.com/InspectorRikatihttp://www.austlii.edu.au/au/cases/cth/high_ct/12clr382.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s36.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s36.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/http://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/s55.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/http://c/1a/Election%202013-fed/Http://www.schorel-hlavka.comhttp://c/1a/Election%202013-fed/Http://www.scrib.com/InspectorRikatihttp://www.austlii.edu.au/au/cases/cth/high_ct/12clr382.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s36.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s36.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/http://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/s55.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/


14/29




Sunday, the thing may be done on the following Monday. The notice simply didnot specify such a period, and it is, therefore, bad. (at p187)

13. In my opinion, the appeal should be allowed, and there should be judgment5 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 frominstituting an investigation into the affairs of the company. (at p187)

And

There is some authority10 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 thespecified number of "clear days" must elapse between two acts or events (seeR. 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

15 ER1085); In re Railway Sleepers Supply Co. (1885) 29 Ch D 204 and Ex parteMcCance; Re Hobbs (1926) 27 SR (NSW) 35; 44 WN 43). But it is clear, Ithink,

that significance is attached to such expressions as "at least" or "not less

20 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

25 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) 12CLR

30382). In the latter case Griffith C.J. said: - "When you talk of doing a thingwithin a period of a certain number of days, it is quite clear that the end ofthe 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

35 the word 'clear'" (1911) 12 CLR, at p 388. In the case of s. 55 of the LifeInsurance 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 thelast day on which cause may be shown is the fourteenth day after the date ofthe notice. (at p183)

40

What this indicates is that publications must done done appropriately or are not applicableat all. After all, if it were accepted otherwise, then Ministers may just delay publications

until the passing of the objection/appeal period and by this circumvent any persons ability

45 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

50 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
http://c/1a/Election%202013-fed/Http://www.schorel-hlavka.comhttp://c/1a/Election%202013-fed/Http://www.scrib.com/InspectorRikatihttp://www.austlii.edu.au/au/cases/cth/high_ct/12clr382.htmlhttp://www.austlii.edu.au/au/cases/cth/high_ct/12clr382.htmlhttp://www.austlii.edu.au/au/cases/cth/high_ct/12clr382.htmlhttp://www.austlii.edu.au/au/cases/cth/high_ct/12clr382.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/s55.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/http://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/http://c/1a/Election%202013-fed/Http://www.schorel-hlavka.comhttp://c/1a/Election%202013-fed/Http://www.scrib.com/InspectorRikatihttp://www.austlii.edu.au/au/cases/cth/high_ct/12clr382.htmlhttp://www.austlii.edu.au/au/cases/cth/high_ct/12clr382.htmlhttp://www.austlii.edu.au/au/cases/cth/high_ct/12clr382.htmlhttp://www.austlii.edu.au/au/cases/cth/high_ct/12clr382.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/s55.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/http://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/


15/29




"that the land has been acquired under this Act for the public purpose thereinexpressed" (s 15(2)). Upon publication of the notification, the land, by force of theAct, was vested in the Commonwealth "freed and discharged from all trusts,obligations, estates, interests, contracts, licences, charges, rates and easements"

5 (s 16); and the estate and interest of every person entitled to the land (including thetitle 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 uponthe owners of the land "or such of them as can with reasonable diligence beascertained" (s 18).

10

32 For present purposes, an important aspect of that scheme is that no notification toowners was required before the publication in the Gazette; and the publication inthe Gazette vested the land in the Commonwealth and converted former estates orinterests in the land into claims for compensation. The scheme excludes the

15 possibility that a failure to notify owners under s 18 would prevent the acquisitionfrom becoming effective.

Where the Commonwealth acquired land by compulsory process, extinguishmenttook place on the occurrence of the event which vested title in the Commonwealth:

20 that is, the publication of the notice in the Gazette.

Re: AUSTRALIAN CAPITAL EQUITY PTY. LTD. And: ROGER DAVID BARNARDBEALE, SECRETARY TO THE DEPARTMENT OF TRANSPORT AND

COMMUNICATIONS; ROBERT LINDSAY COLLINS, MINISTER OF STATE FOR

25 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 power30 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;35

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.40

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)

45 If it were proposed to grant a lease for a term longer than ten years, wide publicationof that intent was to be given by notice published in four consecutive numbers of theGovernment Gazette (WA), the first publication to be at least one month beforethe grant. The term of the lease was not to exceed twenty-one years.

50 Two special leases granted under the Land Act 1933 (WA) for grazing purposes weresaid 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
http://c/1a/Election%202013-fed/Http://www.schorel-hlavka.comhttp://c/1a/Election%202013-fed/Http://www.scrib.com/InspectorRikatihttp://www.austlii.edu.au/au/legis/wa/consol_act/tola1893160/http://www.austlii.edu.au/au/legis/wa/consol_act/tola1893160/http://www.austlii.edu.au/au/legis/wa/consol_act/tola1893160/http://www.dofa.gov.au/infoaccess/informan/about_gazettes.htmlhttp://www.austlii.edu.au/au/legis/wa/consol_act/la193348/http://www.austlii.edu.au/au/legis/wa/consol_act/la193348/s116.htmlhttp://www.austlii.edu.au/au/legis/wa/consol_act/la193348/http://c/1a/Election%202013-fed/Http://www.schorel-hlavka.comhttp://c/1a/Election%202013-fed/Http://www.scrib.com/InspectorRikatihttp://www.austlii.edu.au/au/legis/wa/consol_act/tola1893160/http://www.austlii.edu.au/au/legis/wa/consol_act/tola1893160/http://www.austlii.edu.au/au/legis/wa/consol_act/tola1893160/http://www.dofa.gov.au/infoaccess/informan/about_gazettes.htmlhttp://www.austlii.edu.au/au/legis/wa/consol_act/la193348/http://www.austlii.edu.au/au/legis/wa/consol_act/la193348/s116.htmlhttp://www.austlii.edu.au/au/legis/wa/consol_act/la193348/


16/29




Formal notice of cancellation of the lease was published in the Government Gazette(WA) in 1996.

5That 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 GovernmentPrinter, and purporting to be the date on which the Governor-General assented

thereto, or made known the Kings assent, shall be evidence that such date was the

10 date on which the Governor-General so assented or made known the Kings assent,and shall be judicially noticed.

Gazettes are being issued with the wording Commonwealth of Australia and failing to showany reference to Government Printer and for this also failing to be recognised official

15 publications.

However, this does not bind the State Court to allow evidence to be submitted as to the validityof 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, then20 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:25 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

30 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 judgmentsBARWICK C.J.

35 5. A question of the interpretation ofs. 48 (1) (b) of the ActsInterpretation Act was agitated during the hearing. That subsection provides that theregulations shall take effect from the date of their notification "or where another date isspecified in the regulations, from the date specified".It was argued that this date could be a date anterior to the notification of the regulation

40 including, of course, its prescription of that date. In my opinion, this date, unless theParliament has expressly and intractably directed otherwise, must necessarily be a datesubsequent 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), hasrecognized that justice requires that it be notified publicly before it becomes operative. I am

45 quite unable to construe s. 48 (1) as a Parliamentary mode of expression of intention thatthe law should operate before it is notified. That would be so fundamentally unjust that it isan intention I could not attribute to the Parliament unless compelled by intractable languageto do so. In my opinion, no semantic quirks of the draftsman would lead me to thatconclusion - a conclusion which would attribute to the Parliament an intention to act

50 tyrannically. In my opinion, what the section means is that the regulation will operate onor from the day it is notified or from such other day, being a subsequent day, as theregulation may specify. Such a construction is both reasonable, textually available and just.(at p379)
http://c/1a/Election%202013-fed/Http://www.schorel-hlavka.comhttp://c/1a/Election%202013-fed/Http://www.scrib.com/InspectorRikatihttp://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s48.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s48.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s48.htmlhttp://c/1a/Election%202013-fed/Http://www.schorel-hlavka.comhttp://c/1a/Election%202013-fed/Http://www.scrib.com/InspectorRikatihttp://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s48.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s48.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s48.html


17/29




And8. Section 5 (3), in my opinion, provides a means whereby the obligations ofs. 48 (1) may

be satisfied. It is not intended, in my opinion, to provide any lesser obligation in regard tonotification of the regulation. The change is to allow notification of a place where a copy of

5 the regulation may be had in lieu of the publication of the text of the regulation in theGazette. Just as the latter is a means of affording the citizen the means of knowing theterms 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

10 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 bearingin mind the subject matter of the regulation and the numerical size of the section of thecommunity which its terms are designed to affect. (at p380)

And15 JUDGE3 STEPHEN J.

21. Its great importance is apparent from the history of delegated legislation. That historyreflects the tension between the needs of those who govern and the just expectations ofthose who are governed. For those who govern, subordinate legislation, free of the

restraints, delays and inelasticity of the parliamentary process, offers a speedy and flexible20 mode of law-making. For the governed it may threaten subjection to laws which areenacted in secret and of whose commands they cannot learn: their reasonable expectationsthat laws shall be both announced and accessible will only be assured of realization by theimposition and enforcement of appropriate controls upon the power of subordinatelegislators, whose power, as Fifoot observed "requires an adequate measure of control if it

25 is not to degenerate into arbitrary government": English Law and its Background (1932).(at p394)

And23. These two enactments of the Commonwealth Parliament provide a mechanism forparliamentary oversight of delegated legislation and, no less importantly, allow those

30 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

35 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, hisLordship said (1948) 1 KB, AT p 370 , "vital to the whole English theory of the liberty of

40 the subject, that the affected person should be able at any time to ascertain what legislationaffecting his rights has been passed". (at p395)

AndJUDGE4 MASON J.16. The subsections to which I have referred and the comments made in Dignan's Case

45 proceed upon the footing that a regulation takes effect from the date of its notification, orwhere 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 regulationsshall be notified in the Gazette would, viewed in isolation, call for the publication in theGazette of the regulations in their entirety is not a question that needs to be answered

50 because s. 5 (3) of the Rules Publication Act applies so that publication of a notice in the
http://c/1a/Election%202013-fed/Http://www.schorel-hlavka.comhttp://c/1a/Election%202013-fed/Http://www.scrib.com/InspectorRikatihttp://www.austlii.edu.au/au/legis/cth/num_act/rpa1903202/s5.htmlhttp://www.austlii.edu.au/au/legis/cth/num_act/rpa1903202/s48.htmlhttp://www.austlii.edu.au/au/legis/cth/num_act/rpa1903202/s5.htmlhttp://www.austlii.edu.au/au/legis/cth/num_act/rpa1903202/http://c/1a/Election%202013-fed/Http://www.schorel-hlavka.comhttp://c/1a/Election%202013-fed/Http://www.scrib.com/InspectorRikatihttp://www.austlii.edu.au/au/legis/cth/num_act/rpa1903202/s5.htmlhttp://www.austlii.edu.au/au/legis/cth/num_act/rpa1903202/s48.htmlhttp://www.austlii.edu.au/au/legis/cth/num_act/rpa1903202/s5.htmlhttp://www.austlii.edu.au/au/legis/cth/num_act/rpa1903202/http://www.austlii.edu.au/au/legis/cth/num_act/rpa1903202/


18/29




Gazette that the regulations have been made and of the place where copies can bepurchased is a sufficient compliance with the statutory requirements respecting notification.In Myer Queenstown Garden Plaza Pty. Ltd. v. Port Adelaide Corporation (1975) 11 SASR504, at p 537 Wells J., referring to the requirement in s. 38 of the Acts Interpretation Act

5 1915-1972 (S.A.) that regulations "shall be published in the Gazette", said: "In the settingof s. 38, and more especially because it is associated with the Government Gazette, theword, 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 benotified in the Gazette" means something less than this, but for the reason which I have

10 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 be15 issued for the general elections of members of the House of

Representatives.After the first election, the writs shall be issued within tendays from the expiry of a House of Representatives or from

the proclamation of a dissolution thereof.20

Unlike the quoted Authority, in this case the Prorogue of the Parliament and the dissolution ofthe House of Representatives was in that regard subject to Section 32 of the Constitution, hencean unresolved constitutional issue that remains on foot, and where the subsequent writs issued bythe Governor-General therefore remain ULTRA VIRES, and without legal force, so also any

25 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 of30 Representatives or of both Houses occurs only on the advice to the

Governor-General of the Prime Minister. It is well known that during thelatter part of 1982 and early 1983 the Prime Minister, in repeatedannouncements which were widely reported, stated that there would not be anearly election and towards the end of that period, that he was exploring the

35 possibility of an election in 1984. (See, e.g., The Australian, 3 February1983.) However without any prior public notice the Prime Minister announced inthe late afternoon of 3 February 1983, that on his advice, theGovernor-General had that day agreed to a double dissolution of the Senate andthe House of Representatives; that the writs for the election would be issued

40 on 4 February 1983, the date for nominations would be fixed as 19 February1983; 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 4February 1983. (at p266)

45 6. Thus, although s. 32 ofthe 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 aspace of some days between the proclamation of a double dissolution and theissue of writs for the elections. In 1951 the writs were issued nine days

50 after the proclamation; in 1974 the writs were issued nine days after the
http://c/1a/Election%202013-fed/Http://www.schorel-hlavka.comhttp://c/1a/Election%202013-fed/Http://www.scrib.com/InspectorRikatihttp://www.austlii.edu.au/au/legis/cth/consol_act/c167/s32.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://c/1a/Election%202013-fed/Http://www.schorel-hlavka.comhttp://c/1a/Election%202013-fed/Http://www.scrib.com/InspectorRikatihttp://www.austlii.edu.au/au/legis/cth/consol_act/c167/s32.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/c167/


19/29




proclamation; in 1975 the writs for four States were issued six days after theproclamation and the writs for the other two States were issued ten days afterthe proclamation. (See Commonwealth Gazettes of 19 March 1951, 4 April 1974and 11 November 1975.) (at p266)

5 AndA right to vote is so precious that itshould not read out ofthe Constitution by implication. Rather everyreasonable presumption and interpretation should be adopted which favours theright of people to participate in the elections of those who represent them.

10 (at p268)

WESTERN AUSTRALIA v_ THE COMMONWEALTH ; NEW SOUTH WALES v_

THE COMMONWEALTH ; QUEENSLAND v_ THE COMMONWEALTH (1975) 134

CLR 201;

15

10. By the second paragraph ofs. 57 his Excellency is empowered to performan executive act, namely, to convene a joint sitting of the members of the twoHouses of the Parliament. Once a joint sitting is convened the powers and

duties of the members present are defined by and derived from the third20 paragraph ofs. 57 and his Excellency has no power to increase or diminish

those powers or duties. The section provides that the members present at thejoint 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. The25 Commonwealth). His Excellency is given no power to authorize or direct the

members present at a joint sitting to deliberate or vote upon any particularproposed law.

It seems to be clear that the validity of the issue of the writs isnt purely by the provisions of30 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 theParliament otherwise provides clearly is relevant as to the use of the powers of Section 12 and32. The writs themselves acknowledge this by stating subject to the law and as such for all

purposes is intended to be so.35 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.

WESTERN AUSTRALIA v_ THE COMMONWEALTH ; NEW SOUTH WALES v_ THE

COMMONWEALTH ; QUEENSLAND v_ THE COMMONWEALTH (1975) 134 CLR 201;

40

11. On behalf of the States it was argued that the proclamation must beconstrued so as to give full effect to all that it contains, and that in theabsence of a statutory provision enabling a severance to be effected, theinclusion of the concluding words of the proclamation rendered it entirely

45 invalid. It was submitted that if those words amounted to a direction orauthorization they converted the proclamation from one of an executive to oneof a legislative character, and that if they are merely descriptive they showthat his Excellency intended to convene a sitting of a kind which he had nolegal power to convene, namely, a sitting at which the members present should

50 vote upon the Petroleum and Minerals Authority Act 1973. It was accordingly
http://c/1a/Election%202013-fed/Http://www.schorel-hlavka.comhttp://c/1a/Election%202013-fed/Http://www.scrib.com/InspectorRikatihttp://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/num_act/pamaa1973364/s57.htmlhttp://www.austlii.edu.au/au/legis/cth/num_act/pamaa1973364/s57.htmlhttp://www.austlii.edu.au/au/legis/cth/num_act/pamaa1973364/http://c/1a/Election%202013-fed/Http://www.schorel-hlavka.comhttp://c/1a/Election%202013-fed/Http://www.scrib.com/InspectorRikatihttp://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/num_act/pamaa1973364/s57.htmlhttp://www.austlii.edu.au/au/legis/cth/num_act/pamaa1973364/s57.htmlhttp://www.austlii.edu.au/au/legis/cth/num_act/pamaa1973364/


20/29




submitted that the proclamation was ineffective to convene a joint sitting forthe purposes ofs. 57. (at p241)

12. The power which his Excellency purported to exercise was purely executive5 in character. The first paragraph ofs. 57 empowered him to do one thing only

- to convene a joint sitting. The section did not require him to employ anyparticular means for that purpose; it did not require him to issue aproclamation, although no doubt the issue of a proclamation was a natural andappropriate way of signifying in a formal manner that his Excellency has

10 exercised the power given to him. If a proclamation is issued for the purposeof convening a joint sitting unders. 57, it is unnecessary, although it may

be convenient, that it should refer to the proposed laws upon which it isexpected that the members present at the sitting will vote. The concludingwords of the proclamation were therefore an unnecessary addition to its

15 operative provisions. In the case of a legislative instrument that containssome invalid provisions the question of interpretation that arises "iswhether, after the extent to which the intended operation of the enactment isinvalid has been ascertained, it is nevertheless the expressed will of the

legislature that the whole or any part of the rest of the intended operation20 of the enactment should take effect by itself as a law...." (Bank of NewSouth Wales v. The Commonwealth (1948) 76 CLR 1, at p 369 ). However, nosimilar question of interpretation arises in the present case. The questionis 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

25 deliberated and voted together. If the concluding words of the proclamationare regarded as a purported authorization and direction by his Excellency tothose 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 theinvalidity of that part does not mean that his Excellency's act of convening a

30 joint sitting should be treated as nugatory. If the concluding words aremerely descriptive, the fact that the proclamation unnecessarily anderroneously stated that those present at the joint sitting might deliberateand should vote upon the Petroleum and Minerals Authority Act 1973 did notmean that a joint sitting had not been convened. The ineffective words

35 unnecessarily included in the proclamation did not prevent it from takingeffect as an act by which his Excellency convened a joint sitting of themembers of both Houses of the Parliament. (at p242)

and40

This submission is related to thesubmission that the Governor-General's discretions either to prorogue or todissolve are alternatives and must be exercised once and for all; but it seemsto me that such a concept is quite foreign to the subject matter. It

45 translates a principle commonly applicable to a judicial or curial discretioninto the field of executive discretionary power. For it is an executivediscretion or power which the Governor-General exercises. He does not act asa persona designata in a curial or quasi-judicial role. He acts either on theadvice of the Executive Council or as an officer under the instructions of the

50 Queen, in all cases subject to the Constitution. No doubt it was envisaged in1900 that the Queen would at times give instructions on the advice of her
http://c/1a/Election%202013-fed/Http://www.schorel-hlavka.comhttp://c/1a/Election%202013-fed/Http://www.scrib.com/InspectorRikatihttp://www.austlii.edu.au/au/legis/cth/num_act/pamaa1973364/s57.htmlhttp://www.austlii.edu.au/au/legis/cth/num_act/pamaa1973364/s57.htmlhttp://www.austlii.edu.au/au/legis/cth/num_act/pamaa1973364/s57.htmlhttp://www.austlii.edu.au/au/cases/cth/high_ct/76clr1.htmlhttp://www.austlii.edu.au/au/legis/cth/num_act/pamaa1973364/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://c/1a/Election%202013-fed/Http://www.schorel-hlavka.comhttp://c/1a/Election%202013-fed/Http://www.scrib.com/InspectorRikatihttp://www.austlii.edu.au/au/legis/cth/num_act/pamaa1973364/s57.htmlhttp://www.austlii.edu.au/au/legis/cth/num_act/pamaa1973364/s57.htmlhttp://www.austlii.edu.au/au/legis/cth/num_act/pamaa1973364/s57.htmlhttp://www.austlii.edu.au/au/cases/cth/high_ct/76clr1.htmlhttp://www.austlii.edu.au/au/legis/cth/num_act/pamaa1973364/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/


21/29




United Kingdom ministers but it may now be taken that not only theGovernor-General as the medium through which the Queen exercises her executiveand prerogative powers but also the Queen herself acts on the advice of herAustralian ministers in all matters appertaining to the government of the

5 Commonwealth. Neither the Queen nor the Governor-General acts personally. Thisis true of the powers of the Governor-General unders. 57. He in all aspectsexercises his powers under the section on the advice of an Australianminister. He exercises executive power and there is no place for a conceptthat the power is exhausted or d

Documents

130908-G. H .Schorel-Hlavka O.W.B. to Mr Clive Palmer & AEC Re COMPLAINTS