20140306-G. H .Schorel-Hlavka O.W.B. to JSCEM-Supplement 3 -Invalid WA Writs

8/12/2019 20140306-G. H .Schorel-Hlavka O.W.B. to JSCEM-Supplement 3 -Invalid WA Writs

1/13

p1 6-3-2014

INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD

A 1stedition limited special numbered book on Data DVDISBN 978-0-9803712-6-0PLEASE NOTE: You may order books in the INSPECTOR-RIKATI seriesby making a reservation, See alsoHttp://www.schorel-hlavka.com Blog atHttp://www.scrib.com/InspectorRikati

The Hon Mr Tony Smith MP Chair, 6-3-2014Joint Standing Committee on Electoral MattersPO Box 6021 PARLIAMENT HOUSE ACT [email protected]

AND TO WHOM IT MAY CONCERN

This document is not intended and neither must be deemed to be restricted for publication10

Supplement 3 to Submission dated 24-2-2014 Re invalid WA writSir,

my previous submission dated 24-2-2014 (and supplements) have extensively canvassedcertain matters but as I discovered yesterday, when downloading the publication from theAEC website it appears that my previous claims that even a 4 thyear primary student could do15

better than the AEC, its lawyers and others seems to be yet again underlines, where I view theWA writ is invalid as it is in defiance of the AEC1918 (as quoted below) and neither could bedeemed to have been according to the WA Electoral Act 1907 which albeit not relevant wasnevertheless also considered as to see if this may be where the writs time table was basedupon. It appears therefore that neither either electoral acts were relied upon. It seems to me20that so to say the AEC (Australian Electoral Commission) are throwing dices to take from thathow they use dates in the writs.

ASSOCIATED DOM INIONS ASSURANCE SOCIETY PTY. LTD . v. BALM FORD (1950) 81 CLR 161

QUOTE25The notice actually served did not "specify" such a period: it "specified" a period whichwas too short by one day, and theActs Interpretation Actdoes not affect this position.

END QUOTE

I have below set out to some extend to show that the date of the poll is incorrect.30

While this can easily be overcome by having a proclamation issued by the Governor to

alter the dates of the writ according to what is required and so the poll to be held on 12

April 2014 instead of on 5 April 2014.

Below I have quoted relevant Authorities how shall not be less thanis to be counted!35

What we have is that even now where there really is not pressure to keep the election timetable to a minimum it nevertheless is against too short. Just shows that paying a reported$800,000.00 salary to an electoral commissioner doesnt mean one will get a better kind ofelection performance. The fact this this has continued time and time again may underline the

problems within the AEC which can be held to be a cancerous growth.40When one consider the volume of the missing ballot papers of the invalid WA election thenone has to ask how on earth can such amount of documentation go missing?How often was this occurring but just not detected?.

While the electoral commission may disregard its responsibility perhaps if a member of45parliament lost his/her seat as result then some action may finally eventuate to so to say give

the AEC a kick under its bum and make clear it must be independently supervised, as to
http://www.schorel-hlavka.com/http://www.schorel-hlavka.com/http://www.scrib.com/InspectorRikatihttp://www.scrib.com/InspectorRikatihttp://www.scrib.com/InspectorRikatimailto:[email protected]:[email protected]://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/http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/mailto:[email protected]://www.scrib.com/InspectorRikatihttp://www.schorel-hlavka.com/


2/13

p2 6-3-2014



maintain the same kind of miscalculation of dates in writs since at least 2001 may underlinehow incompetent they are regardless of changing of staff.It reminds me that when I was in placed in charge of factories we had various ongoing

problem and so I decided to work with the workers to discover what was wrong. And, doingso I discovered for example that a machine setter was teaching apprentices an incorrect5manner of setting and so not until I discovered this it have been going on and on. And this iswhy when one appoints someone to be in charge this person should be hands on and start.Also, I then having the responsibility of production I decided to check out all gauges. Whilesome of the workers wondered what possessed me as they had used them for years, to do so, Idiscovered however that about half of them had been incorrectly made and hence once I10detected this and took them away the faulty production was considerably reduced. One simplyhas to check everything and not assume it is all right merely because other had done so

before. And that is what I view is missing with the AEC. When new management (electoralcommissioner upon appointment) doesnt bother to check details as had it done so it shouldhave been aware that the time tables used for elections were in violation of the statutory time15frame.The mere fact that in 2001 not a single Member of Parliament bothered to check if the

proclamation was actually published on 8 October 2001 before the writs were issued may also

underline that Members of Parliament merely assume something will eventuate even so itnever did. And as the proclamation was not issued on 8 October 2001 and was invalid to be20published on 9 October 2001 then every Member of Parliament abstaining from attending theparliament upon the assumption that the proclamation had been published by thisautomatically lost their seats. It is not when the Fovernor-General signs the Proclamation butwhen it is actually published and available to the general public and the record obtained underFOI proved that it was not until 9 October 2001. And so the writs issued on 8 October 200125were without legal force for this also.

As I understood it Mr Keelty reported that this may have been a once off, he obviously neverunderstood that problems have been plaguing the AEC for decades and despite hisinvestigation he still didnt realise this. So much for an investigation!30

There is another issue as I detected from the AEC website;http://www.aec.gov.au/media/media-releases/2014/02-28e.htm QUOTE

Return of writs (latest date) 8 June 2014

END QUOTE35

The writ therefore is not giving any particular returning date but merely that by latest the writ isto be returned by 8 June 2014.The legislation states:

Commonwealth Electoral Act 191840 QUOTE

159 Date of return of writ

The date fixed for the return of the writ shall not be more than 100 days after the issue of the writ.END QUOTE

45The wording The date fixedtherefore requires a precise dateand not something somewhere.After all those who were confirmed to have been elected have a right to know when they are toattend for the return of the writ, if they want to attend for this.What appears to me is that the AEC has its modus operandi regardless how much it is inviolation to legislative provisions and it appears to me cannot bother to have the dates for the50
http://www.schorel-hlavka.com/http://www.schorel-hlavka.com/http://www.scrib.com/InspectorRikatihttp://www.scrib.com/InspectorRikatihttp://www.scrib.com/InspectorRikatihttp://www.aec.gov.au/media/media-releases/2014/02-28e.htmhttp://www.aec.gov.au/media/media-releases/2014/02-28e.htmhttp://www.aec.gov.au/media/media-releases/2014/02-28e.htmhttp://www.scrib.com/InspectorRikatihttp://www.schorel-hlavka.com/


3/13

p3 6-3-2014



writs checked by another person who may have a bit more intelligence to calculate the correctdates. And, as this has been litigated over years by me and the AEC didnt challenge me on 19July 2006 when I comprehensively defeated it in the County Court of Victoria then I view noexcuse can be accepted for it nevertheless to maintain this blatant disregard to legislative timeframe requirements.5

http://www.aec.gov.au/media/media-releases/2014/02-28e.htm QUOTE

2014 WA Senate election to be held on Saturday 5 AprilUpdated:28 February 201410

The Australian Electoral Commission (AEC) today acknowledged that a writ for a Western Australian

Senate election had been issued by His Excellency Mr Malcolm McCusker AC CVO QC, Governor of

Western Australia (WA). The election will be held on Saturday 5 April 2014.

Acting Electoral Commissioner Tom Rogers said the AEC was ready to conduct the election to elect

six Senators for WA in accordance within the provisions of the Commonwealth Electoral Act 1918.15

"The electoral roll will close at 8pm Friday 7 March," Mr Rogers said.

"All Australian citizens aged 18 years and over who live in WA are required by law to enrol and vote

in the 5 April election."

Online enrolment and update is the quickest method and is available atwww.aec.gov.auvia

computer, laptop or mobile device.20

Anyone who is unsure if they are on the electoral roll or if their details are up to date are urged to

check now atwww.aec.gov.au/checkor call the AEC on 13 23 26.

Paper enrolment applications are available at any AEC office, Australia Post outlet, or Centrelink and

Medicare service centres. Completed enrolment applications for the WA Senate election must be

returned to the AEC before 8pm Friday 7 MarchAWST.25

Seventeen year old West Australians who turn eighteen on or before Saturday 5 April can also enrol

now and vote in the WA Senate election.

More information on the WA Senate election is available atwww.aec.gov.auor by calling the AEC on

13 23 26.

Key dates for the 2014 WA Senate election

Issue of writ 28 February 2014

Close of rolls 8pm AWSTFriday 7 March 2014

Close of candidate nominations 12 midday AWST Thursday 13 March 2014

Declaration of candidate nominations 12 midday AWST Friday 14 March 2014
http://www.schorel-hlavka.com/http://www.schorel-hlavka.com/http://www.scrib.com/InspectorRikatihttp://www.scrib.com/InspectorRikatihttp://www.scrib.com/InspectorRikatihttp://www.aec.gov.au/media/media-releases/2014/02-28e.htmhttp://www.aec.gov.au/media/media-releases/2014/02-28e.htmhttp://www.aec.gov.au/index.htmhttp://www.aec.gov.au/index.htmhttp://www.aec.gov.au/index.htmhttp://www.aec.gov.au/checkhttp://www.aec.gov.au/checkhttp://www.aec.gov.au/checkhttp://www.aec.gov.au/index.htmhttp://www.aec.gov.au/index.htmhttp://www.aec.gov.au/index.htmhttp://www.aec.gov.au/index.htmhttp://www.aec.gov.au/checkhttp://www.aec.gov.au/index.htmhttp://www.aec.gov.au/media/media-releases/2014/02-28e.htmhttp://www.scrib.com/InspectorRikatihttp://www.schorel-hlavka.com/


4/13

p4 6-3-2014



Election day Saturday5 April 2014

Return of writs (latest date) 8 June 2014

QUOTE

Commonwealth Electoral Act 1918QUOTE

159 Date of return of wri t5

The date fixedfor the return of the writ shall not be more than 100 days after the issue of the

writ.END QUOTE

Time table of dates and days being counted:10

28 February Friday Writ issue1 March Saturday 1 1stday after writs issued2 March Sunday 2 2ndday after writs issued (and so on)

3 March Monday 315 4 March Tuesday 45 March Wednesday 56 March Thursday 67 March Friday 7 Close rolls

20(Western Australia) Electoral Act 1907

69A. Roll s, when closed after issue of wri t

The time of the close of the rolls is 6 p.m. on the day 8 days after the date of

the writ.

(Closure rolls should have been on Sunday 9 March 2014 this being a Sunday25 then becomes Monday 10 March 2014. Days are counted from Midnight toMidnight and must be including the entire day. Even if one were to hold thatClosure of the rolls were to be on Saturday 8 March then nevertheless theclosure must be on the next working day being Monday 10 March 2014.)However as the High Court of Australia in WESTERN AUSTRALI A v_30THE COMMONWEALTH ; NEW SOUTH WALES v_ THE

COMMONWEALTH ; QUEENSLAND v_ THE COMMONWEALTH

(1975) 134 CLR 201held that the writs for the Senate should comply withthe CEA1918.

8 March Saturday 8 1359 March Sunday 9 210 March Monday 10 311 March Tuesday 11 412 March Wednesday 12 513 March Thursday 13 6 Close nominations4014 March Friday 14 7 1 Count day 1 of 23 days15 March Saturday 15 8 216 March Sunday 16 9 317 March Monday 17 10 418 March Tuesday 18 11 54519 March Wednesday 19 12 620 March Thursday 20 13 7

21 March Friday 21 14 8
http://www.schorel-hlavka.com/http://www.schorel-hlavka.com/http://www.scrib.com/InspectorRikatihttp://www.scrib.com/InspectorRikatihttp://www.scrib.com/InspectorRikatihttp://www.scrib.com/InspectorRikatihttp://www.schorel-hlavka.com/


5/13

p5 6-3-2014



22 March Saturday 22 15 923 March Sunday 23 16 1024 March Monday 24 17 1125 March Tuesday 25 18 1226 March Wednesday 26 19 13527 March Thursday 27 20 1428 March Friday 28 21 1529 March Saturday 29 22 1630 March Sunday 30 23 1731 March Monday 31 24 18101 April Tuesday 32 25 192 April Wednesday 33 26 203 April Thursday 34 27 214 April Friday 35 28 225 April Saturday 36 29 23 Count of day 23 of 23 days15


157Date of poll ing

The date fixed for the polling shall not be less than 23 daysnor more than 31 days after the date of nomination.20END QUOTE

6 April Sunday 37 30 24First day after closure of 23rdday at midnight7 April Monday 38 31 258 April Tuesday 39 32 269 April Wednesday 40 33 272510 April Thursday 41 34 2811 April Friday 42 35 2912 April Saturday 43 36 30 First Saturday poll date, after not less than 23 days

13 April Sunday 44 continue to count days as from the date of issue of the30writs for the last day of the return of the writs

14 April Monday 4515 April Tuesday 4616 April Wednesday 4717 April Thursday 483518 April Friday 4919 April Saturday 5020 April Sunday 5121 April Monday 5222 April Tuesday 5340

23 April Wednesday 5424 April Thursday 5525 April Friday 5626 April Saturday 5727 April Sunday 584528 April Monday 5929 April Tuesday 6030 April Wednesday 611 May Thursday 622 May Friday 63503 May Saturday 64


6/13

p6 6-3-2014



4 May Sunday 655 May Monday 666 May Tuesday 677 May Wednesday 688 May Thursday 6959 May Friday 7010 May Saturday 7111 May Sunday 7212 May Monday 7313 May Tuesday 741014 May Wednesday 7515 May Thursday 7616 May Friday 7717 May Saturday 7818 May Sunday 791519 May Monday 8020 May Tuesday 8121 May Wednesday 82

22 May Thursday 8323 May Friday 842024 May Saturday 8525 May Sunday 8626 May Monday 8727 May Tuesday 8828 May Wednesday 892529 May Thursday 9030 May Friday 9131 May Saturday 921 June Sunday 93

2 June Monday 94303 June Tuesday 954 June Wednesday 965 June Thursday 976 June Friday 987 June Saturday 99358 June Sunday 100 Last day for return of the writs

Commonwealth Electoral Act 1918

QUOTE

159 Date of return of wri t40

The date fixedfor the return of the writ shall not be more than 100 days

after the issue of the writ.END QUOTE


153 Wr its for election of Senators

(1) A writ for the election of Senators shall be addressed to the Australian Electoral Officer for

the State or Territory for which the election is to be held.


7/13

p7 6-3-2014



(2) Where a writ for an election of Senators is received by the Australian Electoral Officer for a

State or Territory under subsection (1), the officer shall:

(a) endorse on the writ the date of its receipt;

(b) advertise receipt of, and particulars of, the writ:

(i) in not less than 2 newspapers circulating generally in the State or Territory; or5

(ii) if there is only one newspaper circulating generally in the State or Territoryin

that newspaper;

(c) take such steps as the officer considers appropriate to advise each Divisional ReturningOfficer in the State or Territory of the dates fixed by the writ; and

(d) give such directions as the officer considers appropriate to each Divisional Returning10Officer in relation to the holding of the election.

END QUOTE

Commonwealth Electoral Act 1918

QUOTE15

155 Date for close of Roll s

The date fixed for the close of the Rolls shall be 7 days after the date of the writ.END QUOTE


156 Date of nomination

(1) Subject to subsection (2), the date fixed for the nomination of the candidates shall not be less

than 10 days nor more than 27 days after the date of the writ.

(2) Where a candidate for an election dies, after being nominated and before 12 oclock noon on25the day fixed by the writ as the date of nomination for the election, the day fixed as the date

of nomination for the election shall, except for the purposes of section 157, be taken to be the

day next succeeding the day so fixed.

157 Date of poll ing

The date fixed for the polling shall not be less than 23 days nor more than 31 days after the30date of nomination.

158 Poll ing to be on a Satur day

The day fixed for the polling shall be a Saturday.

159 Date of return of wri t

The date fixed for the return of the writ shall not be more than 100 days after the issue of the35writ.

END QUOTE

The limitation of involvement/power of a Governor-General/Governor is shown with thefollowing quotation also.40

WESTERN AUSTRALIA v_ THE COMMONWEALTH ; NEW SOUTH WALES v_ THE COMMONWEALTH ;

QUEENSLAND v_ THE COMMONWEALTH (1975) 134 CLR 201;

END QUOTE10. By the second paragraph ofs. 57his Excellency is empowered to perform45an 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 third
http://www.schorel-hlavka.com/http://www.schorel-hlavka.com/http://www.scrib.com/InspectorRikatihttp://www.scrib.com/InspectorRikatihttp://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/legis/cth/num_act/pamaa1973364/s57.htmlhttp://www.scrib.com/InspectorRikatihttp://www.schorel-hlavka.com/


8/13

p8 6-3-2014



paragraph ofs. 57and his Excellency has no power to increase or diminishthose powers or duties. The section provides that the members present at the

joint sitting may deliberate and shall vote together upon "the proposed law",which means any proposed law which answers the requirements of the first two

paragraphs of the section (see Cormack v. Cope and Victoria v. The5Commonwealth). His Excellency is given no power to authorize or direct themembers present at a joint sitting to deliberate or vote upon any particular

proposed law.END QUOTE

10 It seems to be clear that the validity of the issue of the writs isnt purely by the provisions ofSections 12 and 32 nilly willy but rather as Section 2 indicates that the Governor-General (and sohis/her request to a governor must likewise not violate statutory provisions of a time frame) shalluse the powers subject to this Constitution as such any legislated provisions under Until the

Parliament otherwise provides clearly is relevant as to the use of the powers of Section 12 and1532. The writs themselves acknowledge this by stating subject to the law and as such for all

purposes is intended to be so. Section 9 of the Constitutionhowever enshrines State legislativeprovisions as to Senate elections as to time and places and therefore remains applicable as such.

WESTERN AUSTRALIA v_ THE COMMONWEALTH ; NEW SOUTH WALES v_ THE20COMMONWEALTH ; QUEENSLAND v_ THE COMMONWEALTH (1975) 134 CLR 201;QUOTE

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, the25inclusion of the concluding words of the proclamation rendered it entirelyinvalid. 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 no30legal power to convene, namely, a sitting at which the members present shouldvote upon thePetroleum and Minerals Authority Act 1973. It was accordinglysubmitted that the proclamation was ineffective to convene a joint sitting forthe purposes ofs. 57.(at p241)

3512. The power which his Excellency purported to exercise was purely executivein character. The first paragraph ofs. 57empowered him to do one thing only- to convene a joint sitting. The section did not require him to employ any

particular means for that purpose; it did not require him to issue aproclamation, although no doubt the issue of a proclamation was a natural and40appropriate way of signifying in a formal manner that his Excellency hasexercised the power given to him. If a proclamation is issued for the purpose

of convening a joint sitting unders. 57,it is unnecessary, although it maybe convenient, that it should refer to the proposed laws upon which it isexpected that the members present at the sitting will vote. The concluding45words of the proclamation were therefore an unnecessary addition to itsoperative 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 the50legislature that the whole or any part of the rest of the intended operationof 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, no
http://www.schorel-hlavka.com/http://www.schorel-hlavka.com/http://www.scrib.com/InspectorRikatihttp://www.scrib.com/InspectorRikatihttp://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/legis/cth/num_act/pamaa1973364/http://www.austlii.edu.au/au/legis/cth/num_act/pamaa1973364/http://www.austlii.edu.au/au/legis/cth/num_act/pamaa1973364/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/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/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/legis/cth/num_act/pamaa1973364/s57.htmlhttp://www.austlii.edu.au/au/cases/cth/high_ct/76clr1.htmlhttp://www.austlii.edu.au/au/cases/cth/high_ct/76clr1.htmlhttp://www.austlii.edu.au/au/cases/cth/high_ct/76clr1.htmlhttp://www.austlii.edu.au/au/cases/cth/high_ct/76clr1.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/legis/cth/num_act/pamaa1973364/s57.htmlhttp://www.austlii.edu.au/au/legis/cth/num_act/pamaa1973364/http://www.austlii.edu.au/au/legis/cth/num_act/pamaa1973364/s57.htmlhttp://www.scrib.com/InspectorRikatihttp://www.schorel-hlavka.com/


9/13

p9 6-3-2014



similar 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 Housesdeliberated and voted together. If the concluding words of the proclamationare regarded as a purported authorization and direction by his Excellency to5those 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

joint sitting should be treated as nugatory. If the concluding words aremerely descriptive, the fact that the proclamation unnecessarily and10erroneously stated that those present at the joint sitting might deliberateand should vote upon thePetroleum and Minerals Authority Act 1973did notmean that a joint sitting had not been convened. The ineffective wordsunnecessarily included in the proclamation did not prevent it from takingeffect as an act by which his Excellency convened a joint sitting of the15members of both Houses of the Parliament. (at p242)

END QUOTE

andQUOTE

This submission is related to the20submission 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. Ittranslates a principle commonly applicable to a judicial or curial discretioninto the field of executive discretionary power. For it is an executive25discretion 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 theQueen, in all cases subject tothe Constitution. No doubt it was envisaged in1900 that the Queen would at times give instructions on the advice of her30United 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 theCommonwealth. Neither the Queen nor the Governor-General acts personally. This35is 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 dissipated by his exercise of the otherexecutive power, namely, the power to prorogue the Parliament. (at p278)40

END What ought not to be overlooked is the usage of the word may in Section 12 of the

Padfield v Minister of Agriculture & Fisheries and Food(1968) AC 997(1968) 1 ALL ER 694 House of Lords - Lord Upjohn and Lord Hodson45

Upjohn: - (Irrelevant consideration) Here let it be said at once, he andhis advisers have obviously given a bona fide and painstakingconsideration to the complaints addressed to him; the question iswhether the consideration was sufficient in law.

50END QUOTE
http://www.schorel-hlavka.com/http://www.schorel-hlavka.com/http://www.scrib.com/InspectorRikatihttp://www.scrib.com/InspectorRikatihttp://www.scrib.com/InspectorRikatihttp://www.austlii.edu.au/au/legis/cth/num_act/pamaa1973364/http://www.austlii.edu.au/au/legis/cth/num_act/pamaa1973364/http://www.austlii.edu.au/au/legis/cth/num_act/pamaa1973364/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/au/legis/cth/consol_act/c167/s57.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/c167/s57.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/c167/s57.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/c167/s57.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/num_act/pamaa1973364/http://www.scrib.com/InspectorRikatihttp://www.schorel-hlavka.com/


10/13

p10 6-3-2014



QUOTE submission to the County Court of Victoria 19-7-2006 (Unchallenged by the AEC)

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 atwhich an elector in Australia could enter a polling booth for the5purpose of casting a vote in the election.

NEW SOUTH WALES v_ THE COMMONWEALTH ; QUEENSLAND v_ THE COMMONWEALTH (1975) 134 CLR

201.18. No attack is made in these submissions on the validity or effectiveness10of 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 toconvene a joint sitting are statutory and not prerogative powers. Thevalidity of the proclamation convening the joint sitting is attacked but the15submissions to which I have so far referred do not depend on the suggestedinvalidity of the proclamation. (at p219)

Again;The

validity of the proclamation convening the joint sitting is attacked but the20submissions to which I have so far referred do not depend on the suggestedinvalidity of the proclamation.

This was a matter before the High Court of Australia, not sitting as a Court of Disputed Returns,which underlines that to challenge the validity of a Proclamation is and remains before the High25Court 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 ofRepresentatives are pre conditions to hold a general election but are not part of the election

itself that is managed by the Australian Electoral Commission.30Hence 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 JSCEMon 16 August 2002 stated;35

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 forthe close of nominations was calculated incorrectly. Mr Schorel-Hlavka contended that the40term not less than 10 days in subsection 156(1) of the electoral Act should be interpreted

as meaning not less that 10 full periods of 24 hours. On this interpretation the meaning 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 thecumulative effect of this alleged error was that polling day could not be on 10 November452001, 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 Australi a Pty Ltd (1972) 127 CLR 421 at 445, Gibbs J referred to thegeneral rule that not less than so many days refers to clear days unless the context or the50subject matter reveals a contrary intention.


11/13

p11 6-3-2014



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 couldbe filed. Many other occasions the Court have made clear that time periods provided for are

essential. In this case where there are certain constitutional and other legal provisions relevant tothe conduct to publish a Proclamation, the issue of the writs and the time periods governing a5election process then where they are legislative provisions enacted as laws then a citizen isentitled to rely upon those provisions.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.10

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

judgement under 5;

That where an instrument prescribes that a period of time may elapse between one event

and another, the words at least, not less than and not later than, unless the context or15the subject matter reveals contrary intention, should be regarded as indicating that a clear

or full period of time must expire between the two events.

Project Bl ue Sky v Australi an Broadcasting Author ity[1998] HCA 28 (28 April 1998)

Dawson J pointed out in Hunter Resources Ltd v Melville when discussing the20statutory provision in that case: "substantial compliance with the relevantstatutory requirement was not possible. Either there was compliance or there

was not."

Again;25"substantial compliance with the relevant statutory requirement was not possible.Either there was compliance or there was not."

Forster v Jododex Australi a Pty Ltd (1972) 127 CLR 421 at 445 The true version of thejudgement under 5;30

That where an instrument prescribes that a period oftime may elapse between one event and another, thewords at least, not less than and not later

than, unless the context or the subject matterreveals contrary intention, should be regarded as35

indicating that a clear or full period of time mustexpire between the two events.There is some authority for saying that the use, in a statute prescribing a time limit, of such

expressions as "at least" and "not less than" indicate an intention that the specified numberof "clear days" must elapse between two acts or events (see R. v. Justices of Shropshi re40(1838) 8 Ad & E 173 (112 ER 803); Young v. H iggon(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).But it is clear, I think, that significance is attached to such expressions as "at least" or "not45less 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


12/13

p12 6-3-2014



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. Radcli ff e v. Bar tholomew(1892) 1 QB 161 and Armstrong v. Great Southern Gold Mining Co. (1911) 12 CLR 382).

Ful lagar J inAssociated Dominions Assurance Society Pty Ltd v Balford (1950) 81 CLR 161 ,511. 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

until 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. The10company, 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) of15theActs Interpretation Actis 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,"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.20Section 36(2) of theActs Interpretation Actdoes not say that the noticeshall be construed as if the period specified in it expired on Monday the17th, instead of Sunday the 16th. Ands. 55of theLife Insurance Actdoes saythat the notice shall "specify" a period not less than fourteen days fromservice of the notice. The notice actually served did not "specify" such a25

period: it "specified" a period which was too short by one day, and theActsInterpretation Actdoes 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 thingmust be done, and, if the last day of the period so specified falls on a30

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 judgmentin the action for the plaintiff in the form of a declaration that the notice35is invalid and void, and an injunction to restrain the respondent frominstituting an investigation into the affairs of the company. (at p187)

AndThere is some authority

for saying that the use, in a statute prescribing a time limit, of such40expressions as "at least" and "not less than" indicate an intention that the

specified 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 ER1085); In re Railway Sleepers Supply Co. (1885) 29 Ch D 204 and Ex parte45McCance; Re Hobbs (1926) 27 SR (NSW) 35; 44 WN 43). But it is clear, I think,

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

than"only in cases where the immediate purpose of the prescription of a timeis 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 act50must be done.In the former class of case the prescribed number of days mustelapse between two acts or events. In the latter class of case the act must
http://www.schorel-hlavka.com/http://www.schorel-hlavka.com/http://www.scrib.com/InspectorRikatihttp://www.scrib.com/InspectorRikatihttp://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/legis/cth/consol_act/aia1901230/s36.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s36.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/http://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/s36.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/http://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/s55.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/s55.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://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://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/http://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/lia1945144/http://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/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/cases/cth/high_ct/12clr382.htmlhttp://www.scrib.com/InspectorRikatihttp://www.schorel-hlavka.com/


13/13

p13 6-3-2014



(unless a contrary intention appears) be done before the expiration of thelast 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 CLR382). In the latter case Griffith C.J. said: - "When you talk of doing a thing

within a period of a certain number of days, it is quite clear that the end of5the 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 addingthe word 'clear'" (1911) 12 CLR, at p 388. In the case ofs. 55of theLifeInsurance Actit is plain that the immediate purpose of the prescription of a10

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)

END QUOTE submission to the County Court of Victoria 19-7-2006(Unchallenged by the AEC)

One obviously has to question why no one in the prime ministers office bothered to just take15a calendar and number the days? And so, why neither the Governor-General s office and theGovernors Office had no one bothering to check the dates.

While I view the matter can be rectified with the existing dates to be amended albeit the

election to be held on 12 April 2014 instead of 5 April 2014 by proclamation by the Governor20of WA of the amended date and to specify a specific date for the return of the writ,nevertheless it shows how ongoing this AEC fails to appropriately calculate dates.And as I understand it the AEC is at times traveling overseas purportedly teaching others howto conduct an election when it cannot even manage to do it itself.

25Hansard20-4-1897Constitution Convention Debates

QUOTE Mr. HIGGINS:

I think it is advisable that private people should not be put to the expense of having

important questions of constitutional law decided out of their own pockets.END QUOTE30

Why indeed should a citizen have to risk lifesaving or even his home for challenging theinvalid writ(s) merely because the culprits behind it all the AEC can flaunt the laws and neverrisk a single cent doing so and the lawyers involve make a hansom amount of monies. In myview the challenging of matters upon constitutional grounds as the framers of the constitutionmade clear should never be at risk of the ordinary citizen to risk to having to pay cost. The35question is what, if anything, is the JSCEMfinally going to do about it?

The above just indicates one issue as to the writs how officials couldnt care less or simply aretotally incompetent to understand and comprehend what is legally applicable but the problemis they are using litigation at cost of taxpayers expenses where I view they should be booted40out so as to get someone in which has more show then so to say a pea brain.

This submission is not intended and neither must be perceived to refer to matter in anyorder of priority or to all details/issues.

45I look forwards to your details response, if any courtesy will eventuate as such.

Awaiting your response, G. H. Schorel-Hlavka O.W.B.(Friends call me Gerrit)

MAY JUSTICE ALWAYS PREVAIL50

(Our name is our motto!)
http://www.schorel-hlavka.com/http://www.schorel-hlavka.com/http://www.scrib.com/InspectorRikatihttp://www.scrib.com/InspectorRikatihttp://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/s55.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://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/http://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/http://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/http://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/http://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/http://www.austlii.edu.au/au/legis/cth/consol_act/lia1945144/s55.htmlhttp://www.austlii.edu.au/au/cases/cth/high_ct/12clr382.htmlhttp://www.austlii.edu.au/au/cases/cth/high_ct/12clr382.htmlhttp://www.scrib.com/InspectorRikatihttp://www.schorel-hlavka.com/

Documents

20140306-G. H .Schorel-Hlavka O.W.B. to JSCEM-Supplement 3 -Invalid WA Writs