131110-Mr G. H. Schorel-Hlavka O.W.B. to Dr R Brittain LLB Executive Officer, LMNMI DIISR-Legal issues-etc.pdf

8/14/2019 131110-Mr G. H. Schorel-Hlavka O.W.B. to Dr R Brittain LLB Executive Officer, LMNMI DIISR-Legal issues-etc.pdf

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Page 1 10-11-2013 Re: COMPLAINT - etc INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVDA 1 st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0

PLEASE NOTE : You may order books in the INSPECTOR-RIKATI series by making a reservation, See alsoHttp://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati

WI THOUT PREJUDICEDr Richard Brittain LLB 11-11-2013Executive Officer, Legal Metrology

National Measurement Institute5Department of Innovation, Industry, Science and ResearchBradfield Rd, West Lindfield NSW 2070, AustraliaPO Box 264, Lindfield NSW 2070, AustraliaPh: 61-2-8467 3645 Fax: 61-2-8467 3899 Mobile: 0408 617 438Email: [email protected]: http://www.measurement.gov.auABN 74 599 608 295

Cc: D. Napthine MP Premier of Victoria [email protected] Brendan Facey Director, Infringement Management & Enforcement Services (Sheriff) 15

[email protected] Ian Grey Chief Magistrate , Magistrates Court of Victoria233 William Street Melbourne Vic 3000, C/o [email protected]

M Hoyle , Quality and client support Coordinator20Civic Compliance Victoria GPO Box 1916, Melbourne VIC [email protected]

M r Robert Cl ark MP [email protected] 25

Mr G. H. Schorel-Hlavka , MAY JUSTICE ALWAYS PREVAIL Email: [email protected]

COMPLAINT30Ref: Measurements -ETC

Sir, I am communicating in the English language which is not my native language neither did Ihave any formal education in the English language nevertheless despite myself declaredcrummy English I seek you to understand my motives and the purposes I seek to achieve as35well as seek your fullest cooperation. As a CONSTITUTIONALIST I view that our personalviews and interest never should in any form or manner be to disregard the true meaning andapplication of the constitution ( The Commonwealth of A ustrali a Act 1900 (UK)), for thattyranny and dictatorship and oppression and indeed terrorism often are borne out by thoseseeking to place themselves above the RULE OF LAW , being ultimately the constitution from40within all and any legislation must be derived..Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi [1999] HCA 27 (17

June 1999)QUOTE45

Constitutional interpretation

The starting point for a principled interpretation of the Constitution is the search for the intention of itsmaker s[51] . That does not mean a search for their subjective beliefs, hopes or expectations. Constitutional
mailto:[email protected]://www.measurement.gov.au/http://www.measurement.gov.au/mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]://mail.schorel-hlavka.com/edgedesk/cgi-bin/compose.exe?id=018d0b78196cdf8fe2bb44167860ae6efc21&new=&xsl=compose.xsl&[email protected]://mail.schorel-hlavka.com/edgedesk/cgi-bin/compose.exe?id=018d0b78196cdf8fe2bb44167860ae6efc21&new=&xsl=compose.xsl&[email protected]://mail.schorel-hlavka.com/edgedesk/cgi-bin/compose.exe?id=018d0b78196cdf8fe2bb44167860ae6efc21&new=&xsl=compose.xsl&[email protected]://mail.schorel-hlavka.com/edgedesk/cgi-bin/compose.exe?id=018d0b78196cdf8fe2bb44167860ae6efc21&new=&xsl=compose.xsl&[email protected]://mail.schorel-hlavka.com/edgedesk/cgi-bin/compose.exe?id=018d0b78196cdf8fe2bb44167860ae6efc21&new=&xsl=compose.xsl&[email protected]://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://mail.schorel-hlavka.com/edgedesk/cgi-bin/compose.exe?id=018d0b78196cdf8fe2bb44167860ae6efc21&new=&xsl=compose.xsl&[email protected]://mail.schorel-hlavka.com/edgedesk/cgi-bin/compose.exe?id=018d0b78196cdf8fe2bb44167860ae6efc21&new=&xsl=compose.xsl&[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]://www.measurement.gov.au/http://www.measurement.gov.au/mailto:[email protected]


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interpretation is not a search for the mental states of those who made, or for that matter approved orenacted, the Constitution. The intention of its makers can only be deduced from the words that they used inthe historical context in which they used them [52] . In a paper on constitutional interpretation, presented atFordham University in 1996, Professor Ronald Dworkin argued, correctly in my opinio n[53] :

"We must begin, in my view, by asking what - on the best evidence available - the5authors of the text in question intended to say. That is an exercise in what I have calledconstructive interpretatio n[54] . It does not mean peeking inside the skulls of people deadfor centuries. It means trying to make the best sense we can of an historical event -someone, or a social group with particular responsibilities, speaking or writing in a

particular way on a particular occasion."10END QUOTE

http://www.austlii.edu.au/cgi- bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=%22thi+act+and+all+law+made+by+the+parliament%22#fn50 QUOTE

Constitutional interpretation15The starting point for a principled interpretation of the Constitution is the search for the intention of itsmaker s[51] .

END QUOTE

Hansard 20-4-1897 Constitution Convention Debates (Official Record of the Debates of the National20Australasian Convention)

QUOTE Mr. HIGGINS: I think it is advisable that private people should not be put to the expense of having importantquestions of constitutional law decided out of their own pockets.

END QUOTE25

Hansard 2-2-1898 Constitution Convention DebatesQUOTE Mr. DEAKIN (Victoria).-

The record of these debates may fairly be expected to be widely read, and the observations to which Iallude might otherwise lead to a certain amount of misconception. 30

END QUOTE

QUOTE

BROWN v. TEXAS, 443 U.S. 47 (1979) -- CALIFORNIA CIVIL CODE 3527. The law helps the vigilant,before those who sleep on their rights. " A statute does not trump the Constitution. " People v. Ortiz,35(1995) 32 Cal.App.4th at p. 292, fn. 2 Conway v. Pasadena Humane Society (1996) 45 Cal.App.4th 163UNITED STATES OF AMERICA, v. JERRY ARBERT POOL, C.A. No. 09-10303, IN THE UNITEDSTATES COURT OF APPEALS FOR THE NINTH CIRCUIT (Opinion filed September 14, 2010), OnAppeal From The United States District Court For The Eastern District of California " A statutoryprivilege cannot override a defendant's constitutional right. " People v. Reber, (1986) 177 Cal.App.3d.40523 [223 Cal.Rptr. 139}; Vela v. Superior Ct, 208 Cal.App.3d. 141 [255 Cal.Rptr. 921], however, "the

judiciary has a solemn obligation to insure that the constitutional right of an accused to a fair trial isrealized. If that right would be thwarted by enforcement of a statute, the state ...must yield. " Vela v.Superior Ct., 208 Cal.App.3d. 141 [255 Cal.Rptr. 921 Obviously, administrative agencies, like policeofficers must obey the Constitution and may not deprive persons of constitutional rights . Southern Pac.45Transportation Co. v. Public Utilities Com., 18 Cal.3d 308 [S.F. No. 23217. Supreme Court of California.November 23, 1976.] If evidence of a fact is clear, positive, un-contradicted and of such nature it cannotrationally be disbelieved, the court must instruct that fact has been established as a matter of law. Roberts v. Del Monte Properties Co., 111 CA2d. 69 (1952) If they can get you asking the wrongquestions, they don't have to worry about answers. Thomas Pynchon They will do whatever we let them50get away with. Joseph Heller ~*~

END QUOTE.HANSARD 17-2-1898 Constitution Convention Debates QUOTE Mr. OCONNOR .-55

We must remember that in any legislation of the Commonwealth we are dealing with the Constitution. Ourown Parliaments do as they think fit almost within any limits. In this case the Constitution will be aboveParliament, and Parliament will have to conform to it.

END QUOTE

.60
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=


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HANSARD 9-2-1898 Constitution Convention DebatesQUOTE

Mr. HIGGINS .-No, because the Constitution is not passed by the Parliament. END QUOTE.5Hansard 8-3-1898 Constitution Convention Debates QUOTE Sir JOHN DOWNER.-

No one is more in favour of that than I am. But, at the same time, it is said-"Let the Houses of Parliament actcapriciously and variously from day to day-allow this 'tacking' to go on if the Houses choose to agree to it-let

the Houses do one thing one day and another the next, and do not bother about altering the Constitution, but10 trust the Parliament." Of course; but Parliament must only be trusted when it is within the Constitution. The Senate of to-day and the House of Representatives must not be put in a position superior to theConstitution.

END QUOTE15

HANSARD 1-3-1898 Constitution Convention Debates QUOTE

Mr. GORDON .- The court may say-" It is a good law, but as it technically infringes on the Constitutionwe will have to wipe it out. "

END QUOTE20

Not uncommon we have judges seeking to re-interpret our constitutional framework and this

spell disaster and undermine democracy and rather give rise to the tyrants/dictators to succeed intheir conquest to denounce the RULE OF LAW and supplant it with their own interpretationmost suitable to what they desire. Yet, those very tyrants/dictators then deplore those who25through lawful means seek to defend themselves as law breakers and put in place a means toensure that lawful abiding citizens are given buckles of chance to succeed in their quest forJUSTICE .And I now call upon you to ensure that you perform as a SENTRY , as alluded upon by theFramers of the Constitution.30.Hansard 1-3-1898 Constitution Convention DebatesQUOTE

Mr. HIGGINS .-Suppose the sentry is asleep, or is in the swim with the other power?Mr. GORDON .-There will be more than one sentry. In the case of a federal law, every member35of a state Parliament will be a sentry, and, every constituent of a state Parliament will be asentry . As regards a law passed by a state, every man in the Federal Parliament will be asentry, and the whole constituency behind the Federal Parliament will be a sentry.

END QUOTE40

While you may possess a law degree, which I dont, nevertheless you must interpret theconstitution as intended by the Framers of the Constitution, and disregard any conflictingversions you may otherwise be lectured about.

Hansard 17-3-1898 Constitution Convention Debates 45QUOTE Mr. BARTON .-

Providing, as this Constitution does, for a free people to elect a free Parliament-giving that peoplethrough their Parliament the power of the purse-laying at their mercy from day to day the existence ofany Ministry which dares by corruption, or drifts through ignorance into, the commission of any actwhich is unfavorable to the people having this security, it must in its very essence be a free50Constitution. Whatever any one may say to the contrary that is secured in the very way in which thefreedom of the British Constitution is secured. It is secured by vesting in the people, through theirrepresentatives, the power of the purse, and I venture [start page 2477] to say there is no other way ofsecuring absolute freedom to a people than that, unless you make a different kind of Executive thanthat which we contemplate, and then overload your Constitution with legislative provisions to protect55the citizen from interference. Under this Constitution he is saved from every kind of interference. Under this Constitution he has his voice not only in the, daily government of the country, but in thedaily determination of the question of whom is the Government to consist. There is the guarantee of


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freedom in this Constitution. There is the guarantee which none of us have sought to remove, but everyone has sought to strengthen. How we or our work can be accused of not providing for the popularliberty is something which I hope the critics will now venture to explain, and I think I have made theirwork difficult for them. Having provided in that way for a free Constitution, we have provided for anExecutive which is charged with the duty of maintaining the provisions of that Constitution; and,5therefore, it can only act as the agents of the people. We have provided for a Judiciary, which willdetermine questions arising under this Constitution, and with all other questions which should be dealtwith by a Federal Judiciary and it will also be a High Court of Appeal for all courts in the states thatchoose to resort to it. In doing these things, have we not provided, first, that our Constitution shall be free:

next, that its government shall be by the will of the people, which is the just result of their freedom: thirdly ,10 that the Constitution shall not, nor shall any of its provisions, be twisted or perverted , inasmuch as acourt appointed by their own Executive, but acting independently, is to decide what is a perversion of its

provisions? We can have every faith in the constitution of that tribunal. It is appointed as the arbiter of theConstitution . It is appointed not to be above the Constitution, for no citizen is above it, but under it; butit is appointed for the purpose of saying that those who are the instruments of the Constitution-the15Government and the Parliament of the day-shall not become the masters of those whom, as to theConstitution, they are bound to serve. What I mean is this: That if you, after making a Constitution ofthis kind, enable any Government or any Parliament to twist or infringe its provisions, then by slowdegrees you may have that Constitution-if not altered in terms-so whittled away in operation that theguarantees of freedom which it gives your people will not be maintained; and so, in the highest sense,20the court you are creating here, which is to be the final interpreter of that Constitution, will be such atribunal as will preserve the popular liberty in all these regards, and will prevent, under any pretext of

constitutional action, the Commonwealth from dominating the states, or the states from usurping thesphere of the Commonwealth. Having provided for all these things, I think this Convention has donewell. 25

END QUOTE.Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the National AustralasianConvention)QUOTE Mr. ISAACS .- 30

We want a people's Constitution , not a lawyers' Constitution .END QUOTE

Hansard 19-4-1897 Constitution Convention Debates QUOTE35

Mr. CARRUTHERS: This is a Constitution which the unlettered people of the community ought to be able to understand.

END QUOTE.

Hence, lawyers may ordinary desire to find loopholes in legislation or otherwise twist the40meaning of words used in legislation but as a CONSTITUTIONALIST I view one need to useno more but COMMON SENSE and plain English to understand/comprehend the intentions ofthe Framers of the Constitution. Regrettably too often judicial officers fail to meet this criteriaand hand down judgments which are undermined the constitutional rights of those appearing

before the courts and entitled to have their constitutional rights protected.45.

Obviously we face ordinary a barrage of legal wrangling from lawyers representing the

government which with their smooth talk are willing so to say to sell out their own constitutionalrights (and so that of their descendants) then to stand up and show to have a backbone to ensureno infringement upon the constitution is perpetrated.50While, we do have lawyers claiming to be a constitutional lawyer the truth is that this term isan oxymoron, in the same was as is a killer humanist, or a firebug fire-fighter.

In Agar v Dolheguy & Anor [2010] VSC 506 (11 November 2010) decision the Supreme Courtof Victoria held that the Victoria State Parliament validly could legislate as to speed detection55equipment where the Commonwealth had not done so. In my view as aCONSTITUTIONALIST this is utter and plain nonsense, and I will set out why below. Itherefore call upon you that you report the matter to the Commonwealth of Australia as to be an

unconstitutional invasion into the Commonwealth of Australia exclusive legislative powers. It is


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my view that you have a duty to report any infringements upon the Federal legislative powerswhich may undermine your (so the department s) ability to ensure measurements are conductedaccording to the exclusive Commonwealth of Australia legislative powers.I am not seeking you to become personally involved as to if the alleged February 2011 speedingof 5 kilometre s did or didnt even tuate, but that I view you cannot stand by to have any5unauthorised speed detection equipment be used and so undermine the very purposes of theCommonwealth of Australia legislation and that of your Department.

The constitution provides for: (xv) weights and measures as a Commonwealth legislative power. In Agar v Dolheguy & Anor [2010] VSC 506 (11 November 2010) the Supreme Court of10Victoria held that as long as the commonwealth of Australia had not legislated upon the

particular instrument then the State of Victoria can continue to do so. As aCONSTITUTIONALIST I view that the Framers of the constitution placed beyond any doubtthat the moment the Commonwealth of Australia (Federal Parliament) has passed a bill and it has

been enacted then it prevents the states to continue to legislate upon this subject/field.15.

A major problem is that most judicial officers/legal practitioners have the perception that s51 provides for legislative powers of the State. No such legislative powers are provided for as such.Section 51 does no more but provides legislative powers for the Commonwealth of Australia.

Whereas s52 provides exclusive legislative powers from time of federation, s51 however20allows the States concurrent legislative powers until the Commonwealth of Australia has itsown legislation in place as an Act. The moment the Commonwealth of Australia has enacted anylegislation as to measurements then the states no longer can amend their own legislation that mayhave already existed, and neither can enact any new legislation in regard of measurements..25The Commonwealth of A ustrali a Constituti on Act 1900 (UK)QUOTE

106 Saving of ConstitutionsThe Constitution of each State of the Commonwealth shall, subject to this Constitution , continue as at theestablishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be,30until altered in accordance with the Constitution of the State.

107 Saving of Power of State ParliamentsEvery power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by thisConstitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament ofthe State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of35the State, as the case may be.108 Saving of State lawsEvery law in force in a Colony which has become or becomes a State, and relating to any matter within the

powers of the Parliament of the Commonwealth, shall, subject to this Constitution , continue in force in theState; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of40the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of theColony had until the Colony became a State.109 Inconsistency of lawsWhen a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former

shall, to the extent of the inconsistency, be invalid.45 END QUOTE

It should be understood that s109 is not providing any legislative powers to the States as tocontinue legislation but does no more but make clear that any existing State legislation at thetime of the Commonwealth of Australia commencing its legislation to be in place then such50existing state legislation is subject to s109 provisions.It may be appropriate to point out that any colonial legislation that existed prior to federationwould retain its legal force, however if the colonial legislation was amended since federation but

prior to the Commonwealth commencing to apply its own legislation then the colonial legislationwas to be deemed as if it was a ordinary State legislation and hence s109 would then apply.55


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Meaning, colonial legislation that remained as was prior to federation had a different strengthand the Commonwealth of Australia seeking to legislate upon the matter was bound to providethe minimum rights for citizens they had obtained by the existing colonial laws.Much of the issue was at the time that the Framers of the Constitution debated legislative powersthat the states after federation wouldnt then qui ckly seek to amend their colonial laws to get a5

better position whereas the Framers of the Constitution held that the federation should honour theminimum provisions of entitlements of citizens that existed in colonial laws up to the federation.

It should be clear from the quotations below that the e xpressions no new laws makes itabsolutely clear that the States cannot legislate to amend or enact new laws on a subject10matter/field once the Commonwealth of Australia has put in place its own enactment..

While the quotations below cover some pages, I view it is essential to make clear it was not aonce of statement by some Delegate to convention but rather the consensus amongst Delegates15was that the moment the Commonwealth of Australia had enacted legislation upon a certainsubject matter/field then the states no longer could legislate in regard of the same subjectmatter/field.LEGISLATIVE POWERS-COMMONWEALTH-01Hansard 31-3-1891 Constitution Convention Debates20QUOTE Sir SAMUEL GRIFFITH:

Of course it is necessary for the purposes of the commonwealth that it should have the control over allmeans of communication. Another provision to which I desire to call special attention is No. 30, which readsthus:

The exercise within the commonwealth, at the request or with the concurrence of the parliaments of all the25states concerned, of any legislative powers with respect to the affairs of the territory of the commonwealth, orany part of it, which can at the date of the establishment of this constitution be exercised only by theParliament of the United Kingdom or by the Federal Council of Australasia, but always subject to theprovisions of this constitution.

END QUOTE30.Hansard 14-4-1897 Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention )QUOTE Mr. O'CONNOR:

The very principle of the Federal Constitution is this: that the Constitution is above both Houses of35Parliament. That is the difference between it and our Houses of Parliament now. The Federal Parliamentmust be above both Houses of Parliament, and they must conform to it , because it is in the charterunder which union takes place, and the guarantee of rights under which union takes place; and, unlessyou have some authority for them to interpret [start page 592] that, what guarantee have you forpreserving their rights at all. It is very necessary to insert this provision in the Constitution, because if you40do not do that then these questions are questions of procedure between the two Houses in which undue

pressure may be brought to bear at any time on one House or other for the purpose of vetoing a law and doinginjustice to the States represented in that House in the different ways in which the States are represented. Asto the inconvenience, there are thirty-two different subjects of legislation here which may be dealt with by the

federal authority, and in regard to any one of these if an error is made which takes the law outside the45authority which is given to the federal power it is invalid-absolutely void-no matter what inconvenience mayfollow.

Mr. ISAACS: That is not a rule of procedure; that is jurisdiction.

END QUOTE 50


Mr. REID: If it appeared on the face of the Bill, we have to assume first that the Government wouldbring in a Bill which on the face of it was illegal, and that there would not be one pure soul in the Houseto call attention to it, and that even the immaculate Senate would not contain an angelic mind that55would do its duty to the Constitution. Heaven help the Constitution if it is to be run on these lines! The


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Upper House will not allow its rights to be violated if they are put in the Consti tution, and the object ofthe amendment is simply to prevent an unfortunate accident, which would happen over and over againin Acts of Parliament, from rendering an Act after it has received the Royal assent, and which mightbe, perhaps, the deliberate policy of the country, accepted by vast majorities in both Houses, invalid. Iwould not have proposed this amendment in face of the serious debate it has provoked. I proposed, if5no member of the Convention has a previous amendment:

END QUOTE.Hansard 19-4--1897 Constitution Convention Debates

QUOTE 10Mr. BARTON: I will look into these matters. Notwithstanding the able draughtsmanship of the 1891 Bill,

there are several clauses not quite in their right place in it, and it would be well to alter their order . TheDrafting Committee will look into that matter, and at the end of the proceedings will ask hon. members togive their attention to such alterations as they may suggest. It will be better to transpose some of the clauses.With reference to Sir Edward Braddon's amendment, which is put in a better form than that suggested15by Mr. Symon, I do not think there is any actual necessity for it. I find in Maxwell on "Interpretation ofStatutes," 1st edition, page 192, this passage:

It is where the enactment would prejudicially affect vested rights, or the legal character of past Acts,that the presumption against a retrospective operation is strongest. Every Statute which takes away orimpairs vested rights acquired under existing laws, or create a new obligation, or imposes a new duty,20or attaches a new disability in respect of transactions or considerations already past, must be

presumed, out of respect to the Legislature, to be intended not to have a retrospective operation. Thusthe provision of the Statute of Frauds, that no action should be brought to charge any person on anyagreement made in consideration of marriage , unless the agreement were in writing, was held not toapply to an agreement which had been made before the Act was passed. The Mortmain Act, in the25same way, was held not to apply to a devise made before it was enacted. So it was held that the Act of 8& 9 Vict., c. 106, which made all wagers void, and enacted that no action should be brought ormaintained for a wager, applied only to wagers made after the Act was passed.

Sir GEORGE TURNER: There is no doubt about those cases, I should say.

Mr. BARTON: In subsequent editions these examples are multiplied. The principle underlying the30matter is this: that a court in construing an Act assumes that Parliament never intended to do a thingwhich is unjust. I am quite sure that Mr. Symon will agree that the provision is not necessary.

Mr. SYMON: Hear, hear.

END QUOTE35

Hansard 9-9-1897 Constitution Convention Debates QUOTE

Mr. GLYNN ( South Australia )[12.35]: I have not the Federal Council Bill before me; but I believe thatthat bill contained the words "sailing between the ports of the colonies." The bill was sent home with thosewords in it; but her Majesty's advisers at home deliberately changed the wording of the measure so as to40give the Council wider jurisdiction . There was a limitation in the bill which does not appear in the act, andthe Imperial authorities must have made this alteration for some specific purpose . They could not haveaccidentally inserted the words "port of clearance, or ." There is no danger of conflict between the laws ofthe commonwealth and the Imperial law. The moment a new act is passed in England which conflictswith any legislation passed by the commonwealth, that act will to the extent of the difference abrogate45

the legislation under the constitution of Australia . END QUOTE

HANSARD 22-9-1897 Constitution Convention Debates

QUOTE The Hon. E. BARTON (New South Wales)[10.32]:50I have read these reasons through very carefully, and I have been unable to discover that any of the

evils which my hon. and learned friend, Mr. Clark, fears may be expected from leaving these words asthey are. The powers are powers of legislation for the peace, order, and good government of thecommonwealth in respect of the matters specified. No construction in the world could confer anypowers beyond the ambit of those specified.55

The Hon. N.E. LEWIS (Tasmania)[10.35]: I should like to submit for the consideration of the leader of theConvention the question whether the words which the legislature of Tasmania have proposed to omit might

not raise the question whether legislation of the federal parliament was in every instance for the peace,


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order, and good government of the commonwealth. Take, for instance, navigation laws. Might it not becontended that certain navigation laws were not for the peace, order, and good government of thecommonwealth, and might there not be litigation upon the point? We are giving very full powers to the

parliament of the commonwealth, and might we not very well leave it to them to decide whether theirlegislation was for the peace, order, and good government of the commonwealth? Surely that is5sufficient, without our saying definitely that their legislation should be for the peace, order, and goodgovernment of the commonwealth. I hope the leader of the Convention will give the matter fullconsideration with a view to seeing whether these words are not surplusage, and whether, therefore, they had

better not be left out of the bill altogether.

The Hon. E. BARTON: The suggestion of the hon. member will be considered by the Drafting10Committee.

Amendment negatived.END QUOTE.Hansard 22-9-1897 Constitution Convention Debates 15QUOTE

The Hon. R.E. O'CONNOR (New South Wales)[3.18]: The moment the commonwealth exercises thepower, the states must retire from that field of legislation.

END QUOTE20

Hansard 30-3-1897 Constitution Convention DebatesQUOTE Mr. REID:

We must make it clear that the moment the Federal Parliament legislates on one of those pointsenumerated in clause 52, that instant the whole State law on the subject is dead . There cannot be twolaws, one Federal and one State, on the same subject. But that I merely mention as almost a verbal25criticism, because there is no doubt, whatever that the intention of the framers was not to propose anycomplication of the kind.

END QUOTE.Hansard 30-3-1897 Constitution Convention Debates30QUOTE

The Hon. R.E. O'CONNOR (New South Wales)[3.18]: We ought to be careful not to load thecommonwealth with any more duties than are absolutely necessary. Although it is quite true that thispower is permissive, you will always find that if once power is given to the commonwealth to legislateon a particular question, there will be continual pressure brought to bear on the commonwealth to35exercise that power. The moment the commonwealth exercises the power, the states must retire fromthat field of legislation.

END QUOTE.Hansard 21-1-1898 Constitution Convention Debates 40QUOTE

Mr. REID

The object is this, that for some time to come it will not be possible for the Federal Legislature to passlaws on these subjects, and it is necessary to have some laws on them-the state laws if they exist-untilfederal laws are enacted; but the moment a federal law is passed on any one of these subjects, under45the provision under the head of "States" the federal law prevails over the state law.

END QUOTE

.Hansard 27-1-1898 Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention)50QUOTE

Mr. DEAKIN .-My point is that by the requests of different colonies at different times you may arrive at a position in which all the colonies have adopted a particular law, and it is necessary for the working of that lawthat certain fees, charges, or taxation should be imposed. That law now relates to the whole of the Union ,

because every state has come under it. As I read clause 52, the Federal Parliament will have no power,55until the law has thus become absolutely federal, to impose taxation to provide the necessary revenuefor carrying out that law . Another difficulty of the sub-section is the question whether, even when astate has referred a matter to the federal authority, and federal legislation takes place on it, it has any-and if any, what-power of amending or repealing the law by which it referred the question? I should beinclined to think it had no such power, but the question has been raised, and should be settled. I should60


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say that, having appealed to Caesar, it must be bound by the judgment of Caesar, and that it would notbe possible for it afterwards to revoke its reference.

END QUOTE

Hansard 27-1-1898 Constitution Convention Debates5QUOTE

Mr. BARTON (New South Wales).-If this is left as an exclusive power the laws of the states willnevertheless remain in force under clause 100.

Mr. TRENWITH .-Would the states still proceed to make laws?

Mr. BARTON .- Not after this power of legislation comes into force. Their existing laws will, however,10remain. If this is exclusive they can make no new laws , but the necessity of making these new laws will beall the more forced on the Commonwealth.

END QUOTE


Mr. BARTON .-I was going to explain when I was interrupted that the moment the Commonwealthlegislates on this subject the power will become exclusive.

END QUOTE20

Hansard 27-1-1898 Constitution Convention DebatesQUOTE

Mr. BARTON .-We are going to suggest that it should read as follows:-

the people of any race for whom it is deemed necessary to make any laws not applicable to the generalcommunity ; but so that this power shall not extend to authorize legislation with respect to the affairs of25the aboriginal race in any state.

Mr. ISAACS .-My observations were extended much further than that. The term general community " Iunderstand to mean the general community of the whole Commonwealth. If it means the generalcommunity of the whole Commonwealth, I do not see the meaning of saying that the Parliament of theCommonwealth shall have the exclusive authority to do that, because any single state would have the right to30do it under any circumstances. If it means less than that-if it means the general community of a state-I do notsee why it should not be left to the state. We should be placed in a very awkward position indeed if any

particular state is forbidden to pass any distinctive legislation in certain well-known instances. For instance, if

Victoria should choose to enact that Afghans shall only get hawkers' licences under certain conditions whichare not [start page 228] applicable to Europeans she may be debarred by this sub-section from doing so. I do35not know how it will affect our factory law in regard to the Chinese which does not operate beyond theconfines of Victoria at all.

Sir EDWARD BRADDON .-Why single out the Afghans?

Mr. ISAACS .-If any other race possess the same characteristic as the Afghans I will put them in the sameclass. At all events, the expression general community " means the whole community of the Commonwealth.40I do not think that this has any application. If it is to have any application at all, it seems to me to be intendedto debar the state from passing legislation-necessary legislation, but purely confined to that state. I do notthink that that sub-section ought to be there at all if that is the meaning of it.

Mr. BARTON (New South Wales).- I think the original intention of this sub-section was to deal withthe affairs of such persons of other races-what are generally called inferior races , though I do not know45with how much warrant sometimes-who may be in the Commonwealth at the time it is brought intoexistence, or who may under the laws of the Commonwealth regulating aliens come into it. We havemade the dealing with aliens, which includes a certain degree of coloured immigration , a power of theCommonwealth, and we have made the dealing with immigration a power of the Commonwealth, sothat all those of the races who come into the community after the establishment of the Commonwealth50will not only enter subject to laws made in respect to their immigration, but will remain subject to anylaws which the Commonwealth may specially devise for them. There is no reason why the Commonwealthshould not have power to devise such laws.

Sir GEORGE TURNER .-An exclusive power?

Mr. BARTON .-It ought to have an exclusive power to devise such laws.55Sir GEORGE TURNER .-If it does not exercise it can the state exercise it?


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Mr. BARTON .-Once the Commonwealth legislates with reference to the question of aliens andimmigration, its legislation displaces the state law.

END QUOTE

HANSARD 28-1-1898 Constitution Convention Debates 5(Note Clause 52 &53 referred to are now Section 51 &52 of the constitution)QUOTE

That the words "The affairs of," first line sub-section (1),be omitted.

[start page 253] Mr. BARTON .-I have no objection to taking it that way.10Mr. DEAKIN .-I think it must now be perfectly clear that what we desire is, not to deprive, the Federal

Parliament of its paramount power in every respect in regard to any dealings with the races referredto, but to leave to the several states, until the Federal Par liament legislates upon the alien question , theoperation of all legislation already passed, and the the right to legislate in the future until the FederalParliament thinks fit to supersede it by specific legislation. For instance, the Federal Parliament might well15

pass a general law applying to these races without making any reference to their employment as miners orhawkers, and any state legislation in regard to those occupations which might be in existence would continue,or now legislation regarding them might be introduced. When the Federal Parliament chooses to makeregulations in regard to the employment of aliens as hawkers and miners, the state legislation will cease tohave effect. The honorable and learned member (Mr. Symon) said-Hand to the Federal Parliament all powers20

connected with aliens, and allow them to give back certain powers to the state." We say-Instead of takingthese powers from the states and giving them back again, let us leave them with the states until the FederalParliament chooses to assume them."

Sir JOHN DOWNER (South Australia).-I do not think it makes any substantial difference whether you putthis provision in clause 52, or leave it where it is . The Federal Parliament has first to say what races it is:25necessary to make regulations about.

Mr. ISAACS .-That is giving a rather limited meaning to the words " deemed necessary ."

Sir JOHN DOWNER .-There must be some body which deems it necessary, and the only body to which thewords can refer is the Commonwealth Parliament. What very substantial difference does it make whether weleave the provision as it stands or put it into clause 52? True, if the provision is left where it stands, the30Federal Parliament will have exclusive power in connexion with this matter; but that body will only haveexclusive power when it chooses to exercise it. It is only when the Federal Parliament has passedlegislation dealing with the people about whom regulations are to be made that this exclusive powerwill have arisen. The only matter for the committee to consider is as to the expediency of leaving the

provision here or of putting; it into clause 52. Wherever it is, it will, upon the passing of the Constitution,35operate as an intimation to the Federal Parliament that this is a matter of national import, upon which they areexpected to legislate. Once within the Commonwealth citizens should be able to go freely from one state toanother; there should be no lines of differentiation between states. If races are admitted into one state, and arenot free to go into another, the inconveniences of administration, especially on the borders, will be very great.It has been thought well that there should be a uniform law throughout Australia in respect to the40citizens of Australia , and it was considered that this provision should be put into a separate clausegiving exclusive powers, in order to emphasize the fact that the Federal Parliament should legislateupon this matter. In my opinion, whether you put the provision into clause 52, or leave it where it is, itssubstantial legislative effect will be the same. As to the meaning of the words, "the affairs of the people ofany race with respect to whom it is deemed necessary," in my opinion it is the Federal Parliament who must45deem it necessary.

Mr. ISAACS .-What is the meaning of the statement that the state cannot legislate for the wholegeneral community ?

Mr. BARTON .-That is by way of description. A law made by the state does not apply to the generalcommunity.50

[start page 254]

Sir JOHN DOWNER .-My argument is that deemed necessary means deemed necessary by the Parliamentof the Commonwealth. Assuming that I am right, I ask to whom does this clause extend? The persons named

by an Act of the Commonwealth Parliament. When the Commonwealth Parliament deals with thissubject, its legislation will over-ride any local legislation, no matter whether you put the provision in55clause 52 or leave it in clause 53. What the representatives from Victoria want is exactly what is provided


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here, but the provision is put where it is for the purposes of extra emphasis, and to indicate to the FederalParliament that they are expected to make over-riding and general legislation in regard to this vital question. Ithink honorable members are, almost without exception, strongly of opinion that there should be federallegislation upon this matter, and I therefore believe that it will meet the wishes of honorable members if weleave the provision exactly where it is, as a means of hurrying up the Federal Parliament and causing it to5legislate in this matter as soon as possible.

END QUOTE

Hansard 28-1-1898 Constitution Convention Debates

QUOTE 10Mr. GLYNN .-There seems to be some doubt as to whether the exclusive power arises upon the

establishment of the Commonwealth or on the exercise of the power of legislation. The doubt seems to be removed by clause 84. It is said that if we put this provision in clause 52 the exclusive power may be postponed until legislation takes place. But may you not then have a concurrent power, and may not thecompetence of the local Legislature to legislate in the matter be continued as long as the legislation is not in15contradiction of federal legislation?

Mr. DEAKIN .-That is the point.

Mr. GLYNN .-Yes, and there is still a vagueness in the word "exclusive." If it is doubtful whether theexclusive power commences with the foundation of the Commonwealth, and if it is possible that it may onlycome into being on the passing of legislation, may it not still be said that on the passing of exclusive20legislation the power of the local Parliaments to legislate is extinguished, but that on the passing ofconcurrent legislation that power does not cease?

Mr. REID (New South Wales).- I think that enough has now been said on this subject by honorablemembers both sides of the chamber, and I have only a very few remarks to offer. It appears that if thesub-section remains where it is state laws will be valid until federal legislation, but the states will not be25able to alter or improve those laws during the possibly long interval between federation and federallegislation. Under these circumstances, as we leave to the states for an indefinite time the power ofmaintaining the laws they have, we should grant to them the power of improving those laws. It wouldrecommend the Constitution more to a large number of persons if we put the sub-section in clause 52,thus enabling each state to legislate on this matter until the Federal Parliament comes in and legislates30for all.

END QUOTE

Hansard 28-1-1898 Constitution Convention DebatesQUOTE 35

Mr. GLYNN (South Australia).- I desire to call the attention of the leader of the Convention to anapparent vagueness in the word " exclusive ," to which reference has not yet been made. The word"exclusive," no matter at what time the power arises, whether on the coming into being of theCommonwealth, or the exercise of the power by the Federal Parliament, may mean, and I believe doesmean, that the power of the state to legislate ceases. On the question of whether the exclusive power40under this provision comes into being with the establishment of the Commonwealth, I would call theattention of the leader of the Convention to clause 84. That clause seems to indicate that this exclusivepower arises the moment an Act is passed. It speaks of the exclusive power of enforcing customs dutiesbeing vested in the Federal Parliament, but the second paragraph says-

But this exclusive power shall not come into force until uniform duties of customs have been imposed45by the Parliament.

It would appear that without that limitation the exclusive power would come into force at once, and the position would be as stated by the Victorian representatives. If you pass this clause as it [start page 255]stands the state could no longer legislate with regard to Chinese.

Mr. BARTON .-If the exclusive power is given without any restriction, I think it would arise immediately50on the establishment of the Commonwealth.

END QUOTE

Hansard 28-1-1898 Constitution Convention DebatesQUOTE 55

Sir JOHN DOWNER .-There must be some body which deems it necessary, and the only body to whichthe words can refer is the Commonwealth Parliament. What very substantial difference does it make whether

we leave the provision as it stands or put it into clause 52? True, if the provision is left where it stands, the


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Federal Parliament will have exclusive power in connexion with this matter; but that body will only haveexclusive power when it chooses to exercise it. It is only when the Federal Parliament has passedlegislation dealing with the people about whom regulations are to be made that this exclusive power will have arisen.

END QUOTE5


Mr. HIGGINS .-Clause 84 was intended to mean that the power referred to should not be exclusive until

uniform duties of customs had been imposed.10Mr. BARRON.-There is no exclusive power for a period of two years, but by a proviso the power becomes

exclusive at the end of that time. Where there is no such proviso the exclusive power must operate, at anyrate, from the date of the election of the Federal Legislature.

Mr. GLYNN .-There seems to be some doubt as to whether the exclusive power arises upon theestablishment of the Commonwealth or on the exercise of the power of legislation. The doubt seems to be15removed by clause 84. It is said that if we put this provision in clause 52 the exclusive power may be

postponed until legislation takes place. But may you not then have a concurrent power, and may not thecompetence of the local Legislature to legislate in the matter be continued as long as the legislation is not incontradiction of federal legislation?

Mr. DEAKIN .-That is the point.20Mr. GLYNN .-Yes, and there is still a vagueness in the word "exclusive." If it is doubtful whether the

exclusive power commences with the foundation of the Commonwealth, and if it is possible that it may onlycome into being on the passing of legislation, may it not still be said that on the passing of exclusivelegislation the power of the local Parliaments to legislate is extinguished, but that on the passing of concurrentlegislation that power does not cease?25

END QUOTE

Hansard 7-2-1898 Constitution Convention Debates QUOTE Mr. HIGGINS .-

With this liberal stand firmly taken by the ministers, the religious objection was speedily over-ruled.30And now, sir, it will be observed that in the Constitution of the United States of America there was not any

such recognition in the preamble, and it is proposed that there shall be in our preamble . I am very sorry that

those who first propounded this addition to the preamble did not tell the people with what object it was to be put in. They, no doubt, were perfectly fair and honest in their object, but they had read more than most peopleas to what had happened in the state of America, and I think, in all frankness, the people ought to have been35told that there was a direct object and purpose in view. Now, in 1892 there was a decision in regard to the

New York difficulty which has put all the fat in the fire. It was this: There was a law passed by the state ofNew York, which was to the effect that there should be no labour imported from abroad for thepurpose of employers in the state of New York. There happened to be a clergyman imported fromEngland to fill the pulpit of a church in Broadway, in New York, and it was urged that this clergyman40was a labourer imported from abroad.

Mr. SYMON .-A labourer from the vine-yard.

Mr. HIGGINS .-The vineyard idea strikes the honorable member forcibly, no doubt, after his experience asa vigneron. The result was that the question as to whether this clergyman had not been imported against the

laws of the state of New York was brought up before several courts and gravely discussed. One court held45 that it was a breach of the Act to import the clergy-man from abroad, but the Supreme Court of the states,when the question was referred to it, held that it was not a breach of the law, and they also went on to say thatCongress never meant to interfere with the importation of clergy-men, because that was a Christian country.And for the purposes of establishing that it was a Christian country all through the states of America theywent into elaborate charters and documents to show that from the first it had been a Christian country, and of50course they were able to show that most of the states had been founded by denominations for the sake of theirown adherents. But what happened in consequence of that decision? There has been a recrudescence ofreligious strifes throughout the United States, which I could never have believed would have happened-alifting of banners of those who wish to impose, for instance, a compulsory sabbath all through, in, and uponevery state, and a lifting of the banner of those who oppose that movement.55

Mr. FRASER .-Which side are you on?


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Mr. HIGGINS .-I think the honorable member's interjection is beside the question, and wholly unfair. Thismatter may be put upon broad grounds, and not upon the matter of differences between us. I think that ourfeeling is that we ought not to do anything under this Constitution which will alienate from giving an earnest"Aye" to this Bill a large body of honest and good people, if we can avoid that without at the same timeinflicting irreparable harm on the Constitution. I should prefer to rest on the fact that the powers of the5Federal Parliament are limited under the Constitution itself, and that the Federal Parliament has no powerto do anything except what is expressly given to it, or what is by implication necessary . But, althoughthat was the case when this clause was put in, if there is inserted in the preamble an express recognition of theAlmighty in [start page 656] the Constitution, the position which met the draftsmen of this clause will no

longer be applicable, inasmuch as there will be in the preamble of this Constitution a declaration of a10 religious character , from which, as experience shows, a number of corollaries will be deduced, andupon which attempts will be made, from time to time, to pass legislation of a character which I do notthink we intend to give the Federal Commonwealth power to pass. I think that, whatever is done in thismatter, if anything is done, ought to be done by the states. I do not think we ought to interfere with theright of the states to do anything they choose, if they think fit to do anything; but I do think that in15establishing this Federal Commonwealth we ought to take care to reassure people that there will be nointerference with them. There is, I understand, in America, a large body of people called Seventh DayAdventists. There are a few here. Rightly or wrongly, it is not for us to judge, they hold a theory that they arenot obliged to keep Sunday. They cannot afford two holidays in the week, and, therefore, they keep Saturday.Well, these people in America are excited beyond bounds at the attempts which have been made since 1892 to20establish a compulsory Sunday in the United States. Here, these people are few in number, I believe-I do notknow much about them-but I understand that they are exceedingly troubled over the fact that through putting

the words in question in the preamble there may be an attempt to enforce the observance of Sunday uponthem, whereas they observe Saturday.END QUOTE 25

Hansard 8-2-1898 Constitution Convention DebatesQUOTE Mr. BARTON.-

Under a Constitution like this, the withholding of a power from theCommonwealth is a prohibition against the exercise of such a power.30

END QUOTE.Hansard 8-2-1898 Constitution Convention DebatesQUOTE

Mr. BARTON .-Yes, since then, as is pointed out in a little handbook which my honorable friend lent me.35But the question for us to consider is whether a court like the Federal High Court or the Privy Council wouldever come to such a conclusion. One would think it highly improbable. The real question that may arise underthis Constitution is whether the Commonwealth can make a law establishing or prohibiting the free exerciseof any religion. I take it that in the absence of a provision in the Constitution conferring that powerupon the Commonwealth it will be impossible for the Commonwealth to do so. For this reason I think40we need scarcely trouble ourselves to impose any restrictions. Under a Constitution like this, thewithholding of a power from the Commonwealth is a prohibition against the exercise of such a power.

END QUOTE

Hansard 17-2-1898 Constitution Convention Debates (Official Record of the Debates of the National45Australasian Convention ) (Re what is now Section 96 of the Constitution )QUOTE

Mr. OCONNOR .-It is nicely wrapped up. Any one who reflects upon the conditions which must exist

before this provision can be brought into operation will see that it assumes that the states must be reduced to acondition of pauperism before they can take advantage of it.50Sir JOHN FORREST .-What would you do if they were?

Mr. OCONNOR .-I will come to that. Mr. Wise seems to be of opinion that there is some powerimplied in the Constitution to give such aid. Now, from the consideration and study which I have beenable to give to the Constitution, I have no hesitation whatever in saying that there is no such powerimplied. The Constitution is formed for certain definite purposes. There are definite powers of legislation and55definite powers of administration, and the clause that the Right Hon. Sir John Forrest called attention to

just now-clause 81-expressly provides that the revenues of the Commonwealth shall form oneconsolidated fund, to be appropriated for the public service s of the Commonwealth in the manner andsubject to the charges provided in this Constitution.


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Mr. WISE -The order and good government of the Commonwealth would come under the term " publicservice s of the Commonwealth."

Mr. OCONNOR .-I do not agree with the honorable member in his interpretation of the powers of theCommonwealth, especially when dealing with the expenditure of the money of the taxpayers. In such acase there will be a great deal of care taken to keep the nose of the Federal Parliament to the grindstone in the5matter of this expenditure. I do not think any expenditure will be constitutional which travels outsidethese limits. We must remember that in any legislation of the Commonwealth we are dealing with theConstitution. Our own Parliaments do as they think fit almost within any limits. In this case the Constitutionwill be above Parliament, and Parliament will have to conform to it. If any Act were carried givingmonetary assistance to any state it would be unconstitutional, and the object sought would not be10attained. That brings me to the question of whether it is desirable that there should be any such power eitherexpressed or implied. I have no hesitation in saying that it would be a disastrous thing for the future of the[start page 1109] Commonwealth if there was any such power given.

HANSARD 1-3-1898 Constitution Convention Debates15QUOTE Mr. BARTON.-

The position with regard to this Constitution is that it has no legislative power, except that which isactually given to it in express terms or which is necessary or incidental to a power given.

END QUOTE.20Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention )

QUOTE Mr. BARTON .-They do not require to get authority from home, for this reason: That the localConstitutions empower the colonies separately to make laws for the peace, order, and good government25of the community, and that is without restriction, except such small restrictions as are imposed by theConstitutions themselves, and, of course, the necessary restriction that they can only legislate for theirown territory. The position with regard to this Constitution is that it has no legislative power, exceptthat which is actually given to it in express terms or which is necessary or incidental to a power given.

END QUOTE30

Hansard 2-3-1898 Constitution Convention Debates QUOTE

Mr. OCONNOR .-Directly it is exercised it becomes an exclusive power , and there is no doubt that it will be exercised.35

END QUOTE

I may underline that there are ample of further quotations but I view the above ought to besufficient to enable any person with a bit of common sense to understand that the State ofVictoria is offending the Commonwealth of Australia exclusive legislative powers.40Where then the State of Victoria does so and has set in place a system of tyranny/dictatorship toenforce its unconstitutional legislation, regarding speed measurements equipment, then I viewthe Commonwealth of Australia, and so yourself, also have a duty and obligation to takeappropriate action to stop this..45I understand that Premier Napthine is on record that the infringement notices are a way oftaxation. In my view this also underlines that the purpose of the legislation is rather raisingtaxation rather than for the good of Victoria. Moreover, as was reported that some 2,000 N.S.W.motorist had been issued with infringement notices but later were found to have been wronglyissued because somehow the wrong state motor registration details had been used.50This to me underlines how innocent people are subjected to tyranny/dictatorship to be forced to

pay regardless of their innocence to any wrongdoing. THIS HAS TO STOP!

One of the issues I also raised in my past correspondence to the Victorian State Government andits departments was that the Commonwealth has provided for the Magistrates Court of Victoria55to b e provided with federal jurisdiction. However, the amendment alluded to below underminesthis in violation of it not being an open court hearing where clearly to exercise federal

jurisdiction this is required.


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When then I was in February 2011 provided with an Infringement Notice I immediatelychallenged the jurisdiction of any court. This also as where legislation is ULTRA VIRES then itis now law and no court therefore can deal with unconstitutional law.


Mr. DEAKIN (Victoria).-The position of my honorable and learned friend (Mr. [start page 2092] Higgins)may be perfectly correct. It may be that without any special provision the practice of the High Court, whendeclaring an Act ultra vires , would be that such a declaration applied only to the part which trespassedbeyond the limits of the Constitution. If that were so, it would be a general principle applicable to the10interpretation of the whole of the Constitution.

END QUOTE.Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention )15QUOTE

Mr. GORDON .-Well, I think not. I am sure that if the honorable member applies his mind to the subject hewill see it is not abstruse. If a statute of either the Federal or the states Parliament be taken into courtthe court is bound to give an interpretation according to the strict hyper-refinements of the law. It may

be a good law passed by "the sovereign will of the people," although that latter phrase is a common one which20I do not care much about. The court may say-" It is a good law, but as it technically infringes on theConstitution we will have to wipe it out. " As I have said, the proposal I support retains some remnant of

parliamentary sovereignty, leaving it to the will of Parliament on either side to attack each other's laws.END QUOTE

25As the Infringement Court is part of the Magistrates Court of Victoria but operates as acomputer, without any formal OPEN COURT hearings, then clearly this offend theChapter III of the constitution federal court requirement. As I raised the constitution itbecame by this a federal issue.

30Moreover, the Framers of the Constitution while accepting that the States could regulate theirown legal processes they did however imply the legal principle that the judiciary cannot handdown a judicial determination unless and until both parties have been heard. This, while theInfringement court operates not on a sworn filed affidavit, but merely what the informant mayallege (Without formal notification to the accused of what actually was filed in the Infringement35Court) the accused not at all being provided with any legal opportunity to place his/her case tochallenge the allegations. Hence, I view the Magistrates Court of Victoria is defying the federal

jurisdiction mi nimum legal requirements and cannot be deemed for this to be a competent courtof law exercising federal jurisdiction. Moreover, when I challenged the Registrars decision toissue orders against me and sought a review, the Registrar denied this. This, even so the High40Court of Australia in H arr is v Caladine [1991] HCA 9; (1991) 172 CLR 84 (17 April 1991)made clear that as Registrars decision must always be reviewable by a judge. As such what wehave is a Registrar not under supervision of a judge which offends also the provisions applicableto a Chapter III of the constitution court.

45Another issue I raised was that the Sheriffs Office is no more but a glo rified Debt Collectorrather than a Sheriff Office for enforcing Court orders, etc. The difference is that the Sheriff infederal courts is there not to pursue the interest of s Government but is for the security and

protection of the Court itself.Any person who is fleeing from pursuing police officers can seek sanction in any court building50as this is off limit to any police enforcement, so that the Chief Justice of that court thendetermines of the person seeking sanctuary shall be provided with this safety and security or the

police should be invited to take the person from the courts precinct. The same as with anyonefollowing into the Parliament, where again ordinary police powers cannot be exercised withoutthe permission of the presiding Speaker/President.55


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Therefore the separation of powers is and must be maintained that a sheriff either acts for theCourt itself or operates as a debt collector for the Government, but cannot do both, as therewould be a conflict of interest, and the sheriff then could violate the precinct of thecourt/Parliament for political reasons.What we now have also is that as was reported the police are pulling over drivers for no other5

purpose but that the sheriff then can check out if there are any warrants outstanding, again, this isunlawful and not permissible in law, as the police while having powers to stop a motorist forroad safety issues, such as licence check and drug and alcohol testing it is not within that powersto use it for the sake of the sheriff to check peoples records,What we therefore have is a gigantic escalation of abuses of powers by the Victorian State10Government in aid of its unconstitutional legislation regarding speed detection devises, andhence, I call upon you and the Federal Government to STOP THIS ROT and to make clear thatthe States have no legislative powers as to weight and measurements.

QUOTE15

Infringements Act 2006

Act No. 12/2006

The Parliament of Victoria enacts as follows :

PART 1 PRELIMINARY

1. Purposes20

The main purposes of this Act are

(a) to provide for a new framework for the issuing and serving of infringement notices foroffences and the enforcement of infringement notices;

(b) to amend the Magistrates' Court Act 1989 ,

the Road Safety Act 1986 and the Subordinate Legislation Act 1994.25

ENDNOTES

END QUOTEQUOTE

Minister's second reading speech

Legislative Assembly: 16 November 200530

Legislative Council: 28 March 2006

The long title for the Bill for this Act was "to provide for a new Framework for the issuingand serving of infringement notices for offences and the enforcement of infringementnotices, to amend the Magistrates' Court Act 1989 , the Road Safety Act 1986 and theSubordinate Legislation Act 1994 and for other purposes."35

END QUOTE

QUOTE

David Woods

To [email protected]

Nov 7 at 9:58 AM

Please find the reply to Speed measurement.

From: Brittain, Richard [mailto:[email protected]]Sent: Wednesday, 6 May 2009 1:01 PM45To: Jim Maragos.
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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Cc: TradeSubject: RE: Question re speed measuring devices?? [SEC=UNCLASSIFIED]

Dear Mr Maragos,

I refer to your e-mail of 3 May 2009 to our Trade mailbox and confirm as follows:

Speed measuring devices are not exempt from the provisions of the National Measurement Act 1960 5(Cth).

There is no exemption certificate attesting to the above.

I trust that this information satisfies your enquiryYours sincerely

Richard Brittain10Dr Richard Brittain LLB

Executive Officer, Legal Metrology

National Measurement Institute

Department of Innovation, Industry, Science and Research

________________________________________15

National Measurement InstituteBradfield Rd, West Lindfield NSW 2070, AustraliaPO Box 264, Lindfield NSW 2070, AustraliaPh: 61-2-8467 3645 Fax: 61-2-8467 389920Mobile: 0408 617 438Email: [email protected]

Internet: http://www.measurement.gov.auABN 74 599 608 295

25From: Jim MaragosSent: Sunday, May 03, 2009 7:33 PMTo: TradeSubject: Question??

To Whom it may concern30I would like to know if the speed measuring devises used buy the police are exempt from the

National Measurement Act 1960 (cth) And if so why and were can I get the exemption certificate

That proves that fact.

As far as I can see the only exemptions are

a) A quantity of reticulated electricity, reticulated gas or reticulated water35 b) Charges relating to telephone calls

c) The fare payable for use of a taxi

d) The charge for the hire of a motor vehicle

e) Tyre pressures

f) The expiration of the time for parking a motor vehicle40Your response would be appreciated

Regards

jim

END QUOTE45

I received a correspondence purporting to be from the Sheriff's Office that the registration of my vehicle1989 Mitsubishi will be prevented from renewal, in regard of Obligation Number 1106575301.
mailto:[email protected]://www.measurement.gov.au/http://www.measurement.gov.au/http://www.measurement.gov.au/http://www.measurement.gov.au/mailto:[email protected]


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The picture above clearly indicates in the letterhead that the INFRINGEMENT COURT is underthe emblem of the Magistrates Court of Victoria

5Below, it is shown that the appeal to " revoke/cancel " the order was refused by the InfringementRegistrar. As shown below I applied for a "review" which in regard of a Chapter III of the(federal) constitution court must be an " open court " with a review before a judge, not a registrar.

Dimes v. Proprietors of the Grand Junction Canal (1852) 3 II,L.C. 75910QUOTE

The fundamental rule of English (Australian) law is that " No man can be a judge in his own case ". It haslong been held that if there is bias or the appearance of bias such as to deny justice or create the impressionthat justice has not been done, then that bias, or apparent bias, is sufficient to invalidate the decision ofthose who made the decision.15

END QUOTE Reg v. The London County Council (1894) XI .L.R. 24

Sharp v. Carey (1897) 23 V.L.R. 248 Austin Digest 17.Reg. v. Moleswort (1893) 23 V.L.R. 582 Austin Digest 17.Black v. Black (1951) N.Z.L.R. 72320Ex Parte Blume (1958) W.N. (N.S.W.) 411Austin Digest 93,339,457,458


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This notice clearly purports that the INFRINGEMENT COURT is part of the Magistrates Courtof Victoria.

Above shows that there was 1 point applied against my driver license, and for what? After all, I5requested a "review" of a registrar s decision and was entitled to have this heard before amagistrate, yet instead I am given a penalty without conviction. meaning the police are the onceissuing the Infringement Notice and who are applying the 1 point penalty!Judge, Jury and Executor mentality!QUOTE 130721- John Wilson10

The Constitutional Matter raised in these proceedings is a re- visit to the Boilermakers Case, Citation : ( 1956 ) 94CLR 254. ... R v Kirby; Ex parte Boilermakers' Society of Australia. The High Court Of Australia ruled thata statutory body that is not a court has no judicial authority and cannot act judicially . An example

being the State Debt Recovery Office (SDRO) of New South Wales Australia cannot impose any judgement or penalty or fines, which can only be done by a court. The SDRO is not a court, instead is a15 private corporation conducting business/commerce (a statutory body). So the cancelling of car licenses andregistrations at the direction of the SDRO to the Road and Traffic Authority (RTA) of New South Wales,Australia (another private corporation conducting business/commerce) is unlawful.

END QUOTE20

Article 11 of the United Nations Universal Declaration of Human Rights provides:QUOTE

"Everyone charged with a penal of fence has the right to be presumed inn ocent un ti l pr oved guil tyaccordin g to law in a publi c tri al at whi ch she/he has had all the guarantees necessary f or h is defence ."

END QUOTE25

Clearly the above outline that this is not eventuating..

DUE PROCESS OF LAW


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QUOTE Hansard 3-3-1898 Constitution Convention Debates

Sir EDWARD BRADDON .-The amendment is to omit clause 110, and insert the following now clause:-

The citizens of each state, and all other persons owing allegiance to the Queen and residing in any territoryof the Commonwealth, shall be citizens of the Commonwealth, and shall be entitled to all the privileges andimmunities of citizens of the Commonwealth in the several states, and a state shall not make or enforce any5law abridging any privilege or immunity of citizens of the Commonwealth, nor shall a state deprive any

person of life, liberty, or property without due process of law , or deny to any person within its jurisdictionthe equal protection of its laws.

END QUOTE10QUOTE HANSARD 8-02-1898 Constitution Convention Debates

Mr. KINGSTON .-What does the honorable and learned member mean by the term " due process of law "?

Mr. OCONNOR .-The amendment will insure proper administration of the laws, and afford their protectionto every citizen .

Mr. SYMON .-That is insured already.15Mr. OCONNOR .-In what way?

Mr. SYMON .-Under the various state Constitutions.

Mr. OCONNOR .-Yes. We are now dealing with the prohibition against the alteration of theseConstitutions. We are dealing with a provision which will prevent the alteration of these Constitutionsin the direction of depriving any citizen of his life, liberty, or property without due process of law .20Because if this provision in the Constitution is carried it will not be in the power of any state to pass alaw to amend its Constitution to do that. It is a declaration of liberty and freedom in our dealing withcitizens of the Commonwealth. Not only can there be no harm in placing it in the Constitution, but it isalso necessary for the protection of the liberty of everybody who lives within the limits of any State.

END QUOTE25

QUOTE Hansard 8-2-1898 Constitution Convention Debates

Mr. OCONNOR .-No, it would not; and, as an honorable member reminds me, there is a decision on the point. All that is intended is that there shall be some process of law by which the parties accused must beheard. 30

Mr. HIGGINS .-Both sides heard . Mr. OCONNOR .-Yes; and the process of law within that principle may be [start page 689] anything

the state thinks fit. This provision simply assures that there shall be some form by which a personaccused will have an opportunity of stating his case before being deprived of his liberty. Is not that afirst principle in criminal law now? I cannot understand any one objecting to this proposal.35

END QUOTEAnd these legal principles are embedded into the constitution.QUOTE HANSARD 17-3-1898 Constitution Convention Debates

Mr. BARTON .- Of course it will be argued that this Constitution will have been made by theParliament of the United Kingdom . That will be true in one sense, but not true in effect, because the40provisions of this Constitution, the principles which it embodies, and the details of enactment by whichthose principles are enforced , will all have been the work of Australians .

END QUOTE

QUOTE HANSARD 17-3-1898 Constitution Convention Debates 45Mr. BARTON .- Having provided in that way for a free Constitution, we have provided for anExecutive which is charged with the duty of maintaining the provisions of that Constitution; and,therefore, it can only act as the agents of the people.

END QUOTE50

QUOTE HANSARD 17-3-1898 Constitutio

Documents

131110-Mr G. H. Schorel-Hlavka O.W.B. to Dr R Brittain LLB Executive Officer, LMNMI DIISR-Legal issues-etc.pdf