20160222-Schorel-Hlavka O.W.B. to County Court of Victoria-Re Buloke Shire Council -APPEAL-15-2502-ADDRESS to the COURT-Supplement 3

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Page 2 AP 2502 ADDRESS TO THE COURT Suppl 3, Hearing date 22-2-2016 (or alternative date if allocated)

p2 22-2-2016 Hearing date 22-2-2016 Ballarat venue Mr G. H. Schorel-Hlavka O.W.B. Appeal 15-2502Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria [email protected]

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Again below the Section 78B NOTICE OF CONSTITUTIONAL MATTERS (section 78B ofthe judiciary Act 1903 ) has been reproduced to indicate that the issues of “citizenship”, “Statecitizenship” “Australian citizenship” was considerably canvassed by me and that “AustralianCitizenship” can only be obtained by obtaining “State citizenship”. None of the Attorney-Generals challenged this.

As I succeeded in both appeals I am entitled to have the benefits of those successful appeals.

In current matters before the County Court of Victoria I am the Objector as well as the

Appellant, making known that I object to the jurisdiction of the court. The prosecutor has notfiled one of iota “evidence” to overcome this objection. And so to say time to do so has longsince passed. In fact despite the 30 October 29015 orders of His Honour Mullaly J the Prosecutor(it should be purported Prosecutor) failed to comply with the orders to post on or before 9

November 2015 the “full brief ”. As such no material is before the Court to consider in support ofeither the OBJECTION TO JURISDICTION or to justify the Summons charge. Hence theobjection is and remains to be unchallenged. The Prosecutor neither filed within the provisions ofthe rules of the court and legislative provisions any Notice of Appearance and neither applied for“leave to file/serve out of time”. As such the appeal for this is also unchallenged.

I opposed the litigation even before it was instituted but to no avail. Well, then the purported

prosecutor cannot complain about might be perceived as an avalanche of writings because afterall it is trying to deny me the benefits of past court orders.As Buloke Shire Council is acting by delegated powers of the State of Victoria then the litigationis one where effectively the name Buloke Shire Council can be substituted for the State ofVictoria. As such Buloke Shire Council cannot re-litigate constitutional issues that were resolved

by my successful appeal on 19 July 2006 as time for the State of Victoria to litigate was on 19July 2006 and not about 10 years later.

Melinda Hampshire Registrar has indicated that the written submissions ADDRESS TO THECOURT is placed in the “correspondence file” rather than the “court file” and I have written tothe Registrar that this is inappropriate.

QUOTE 20-2-2016 CORRESPONDENCEMelinda Hampshire Registrar [email protected] & [email protected]

Cc: Mr Peter Kidd CJ County Court of Victoria, [email protected] Buloke Shire Council [email protected] Andrews Premier Victoria [email protected] Martin Pakula, [email protected] & [email protected] Stafford and Associated [email protected] Court of Victoria [email protected] Garry McIntosh, Associate to His Honour Mullaly J. [email protected]

Re: 20160220-Schorel-Hlavka O.W.B. to Melinda Hampshire Registrar-Re APPEAL-15-2502--Re COMPLAINT

Melinda,

considering that a judge on circuit requires to know what hearing time allocation is neededand the basic issues of the case to conceal from the judge the written submissions (ADDRESSTO THE COURT) from the court file means from onset that the judge from onset will bemisled by court staff about what the case is about, as I stated in my 18-2-2016 correspondence:QUOTE 18-2-2018 correspondence

As the written submissions (ADDRESS TO THE COURT) supplement 2 (17-2-2016) on the last page sissubmit that orders and judgment be reserved then clearly a judge could consider it all and then if desiring todo so hand down a reason of judgment and orders upon the content of the written submissions (ADDRESSTO THE COURT) with its supplement 1 & 2, considering also no (valid) material was filed and/or served

by Buloke Shire Council.END QUOTE 18-2-2018 correspondence

Technically this matter is too comprehensive & complicated to be heard by way of circuit

hearing, and should be transferred to William Street, Melbourne venue at the very least!

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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For example as stated in20160214-Schorel-Hlavka O.W.B. to County Court of Victoria-Re Buloke Shire Council -APPEAL-15-2502-

ADDRESS TO THE COURT-Supplement 1

QUOTE

Some of the issues but not in any of priority

OBJECTION TO JURISDICTIONFire Prevention Notice in violation to the provisions of the Country Fi re Authority Act 1958 Fire Prevention Notice contains demands exceeding delegated powers.

Fire prevention Notice in valid in lawInfringement Notice invalid in law based on invalid Fire prevention Notice.Summons invalid in law based on Invalid Infringement Notice.Summons invalidly issues as Infringement Noticed failed to have been withdrawn.Summons hearing in the wrong court venueFailure to serve “full brief” No evidence to prove jurisdiction. No evidence whatsoever to justify 20 August 2015 orders at St Arnaud venue No evidence to legally justify 17 September 2015 orders at St Arnaud venueFailing to file and serve Notice of Appearance regarding appealFailing to file and serve for Leave to file and serve out of time Notice of AppearanceFailure to provide 27 October 2015 requested “brief” Failing to comply with 30/10/2015 order to serve via Australia Post by 9/11/2015 “full brief” Failing to request “leave to serve out of time “full brief”. Providing misleading Form 11 statement dated 25/11/2015 re 18/3/2013 alleged hearingProvide different Form 11 for 22/2/2016 hearing without full briefFailure by State Government to provide relevant FOI material requested 9/12/2015

END QUOTE

It should be clear that I am not the kind of person who will let these issues go and I view that nocompetent legal practitioner would ignore such issues. A trail judge cannot ignore those issueseither and it may take considerable time, if not days, to hear and determine these issues. And

possibly orders that the court may deem appropriate and numerous further hearings. Hearingtimes on circuit are very precious as people residing in the country need to be heard without

having to travel to Melbourne for this, albeit major complicated cases generally have to be heardat Melbourne. The judge on circuit cannot allocate numerous days to deal with one case and sorepeated returns to the Ballarat venue in itself would be a gross denial of justice, this besides myhealth problems. As I reside in Viewbank, a suburb of Melbourne and Buloke Shire Councillawyers are based in Clifton Hill, a suburb of Melbourne then it simply doesn’t make sense in

that regard to have a hearing in Ballarat. Moreover,QUOTE 2 20151029-Schorel-Hlavka O.W.B. to County Court of Victoria-Re Buloke Shire Council -APPEAL-15-2502

The fact that Buloke Shire Council as well as its legal representatives were made aware even before they institutedlitigation in the magistrates Court of Victoria at Collingwood but for a very strange reason chose a difficult venue at StArnaud to have it heard they were made aware of the 19 July 2006 judgment of the County Court of Victoria setting asidethe Magistrates Court of Victoria at Heidelberg orders which I had challenged in an OBJECTION TO JURISDICTIONand as such its persistence to nevertheless institute litigation was and still remains of great concern to me. In particular

where I had notified both Buloke Shire Council as well as its legal representatives that I was in ill health. (My mobile canshow the numerous medical appointment that were confirmed to have been made, also on the days of the hearings). Whilethe Heidelberg venue was closed due to water damage the advice was that the magistrates Court of Victoria at Melbourne(city), Broadmeadows and Ringwood would be the alternatives. In any circumstances as I reside in Viewbank St Arnaudwas not the correct venue. It should be of concern to any judge that this tactic to elect a venue that is most difficult to attendto is as to obstruct access to the courts, in particular where a person is suffering of ill health. See also [2011] UKPC 31Privy Council Appeal No 0101 of 2010 Electra Daniel Administrator for the estate of George Daniel (deceased) (Appellant)v The Attorney General of Trinidad and Tobago (Respondent) while this was a wheelchair access issue, nevertheless the judgment itself refers to access to the courts. As a senior citizen I view the Age Discrimination Act 2004 applies also,considering also that a Magistrates Court of Victoria court facility at Heidelberg is about 4 KM away from my residence(the City, Broadmeadows and Ringowood venues are each about 20 kilomtres away. The distance of Melbourne to StArnaud is 244 KM.

END QUOTE 20151029-Schorel-Hlavka O.W.B. to County Court of Victoria-Re Buloke Shire Council -APPEAL-15-2502

The same applies to the Ballarat venue where despite my health problems I am forced to attend

to some distant circuit court hearing. Obviously the court do video hearing for me to attend to


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Melbourne, William Street venue, but that surely would be silly to use court facilities at 2 courtvenues where William Street can be used on its own.

I understand now that you have placed the written submission on the correspondence file

instead of the court file. Hence, I will set out the following:

A trail judge (decades ago) refused to read the written submissions (ADDRESS TO THECOURT) but on appeal the Full Court set aside the orders stating His Honour made an error inlaw, as His Honour was obligated to consider the content of the (ADDRESS TO THE

COURT)! When His Honour Mullaly J on 30 October 2015 initially refused to consider the(ADDRESS TO THE COURT) I alerted His Honour Mullaly J to this and His Honour MullalyJ then adjourned the hearing to consider its content. When I had my 19-7-2006 successfulappeals my written submissions (ADDRESS TO THE COURT) was follows:

Part 1 contained 150 pages + Part 2 contained 135pages + Part 3 contained 127 pages = TOTAL: 412 pages

When I had another successful appeal in 1994 it was 11 parts of about 800 pages. The Full Courtin fact complimented me for this and recommended lawyers should follow my example!When I had a matter before the High Court of Australia the written submissions (ADDRESSTO THE COURT) was a mere about 100 pages but during the hearing one of the judges wasable to recite of head page number and statement I had made, indicating His Honour had readthe written submissions (ADDRESS TO THE COURT).

When for example I represented Mr Frank Colosimo in both an appeal as well as a CONTEMPTcase against Mr Colosimo I had provided again more than 700 pages written submissions (ADDRESS TO THE COURT) hence the success in both cases, whereas the opponent barristerfiled at the hearing a pile of printed out authorities only for me to immediately expose that one ofthe authorities actually was proving Mr Colosimo’s case and not has counsel had claimed was

supporting her client’s case. Counsel then sought to excuse herself that she had not reads the caseherself and relied upon her instructing solicitor. What was unfair and in fact denied a FAIR ANDPROPER HEARING was that counsel filed the Authorities at the time she presented her client’s

case and obviously there was no way I could read a pile of authorities then. However just flickingthrough the pile of Authorities I happen (within seconds) to notice the contradiction in oneauthority. Regretfully I understand that lawyers have a habit of presenting piles of Authorities

when they open their address to the court well aware their opponent wouldn’t have the timeand/or the ability to read and consider it all.A judge rather reads the written submissions (ADDRESS TO THE COURT) then having to sitfor days listening to me having to read it all out at the bar table.With my written submissions (ADDRESS TO THE COURT) I provide the material inadvance of a hearing giving opponents an opportunity to read and consider it all. This as well asthe court itself has the opportunity to read it all and knowing what the case is about rather than toget involved in time wasting by a judge who doesn’t understand/comprehend the case. I see absolutely no legal justification why the court would for example place on court file thedisputed purported Notice of Appearance of Buloke Shire Council but conceal from the court filemy objections. The same can be stated regarding any purported (disputed) “full brief’.

As I indicated I am well aware that legal practitioners have so to say their private communicationline with the court and court staff and as I exposed with a judge she had issued orders withoutany formal application and hearing but merely upon a phone call by opponent lawyers. “Her

Honour” had no choice but to disqualify herself, u pon my written submission!So, now it appears to me that Buloke Shire Council lawyers seems to have some privatecommunication channelled I am not privy to where perhaps arrangements are made that mymaterial is concealed from the court file and placed on correspondence file so a judge will beunaware of my written submissions (ADDRESS TO THE COURT) while then dealing withmatters as if Buloke Shire Council has a legitimate case.


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My written submissions (ADDRESS TO THE COURT) are formal written documents thatshould be on court file and any purported Noticed of appearance and/or “full brief” and or otherdocuments that are subject to objections cannot be placed on court file as if there are noobjections but should be placed in a sealed envelope on court file for a judge first to determine ifconsidering the objection(s) the document(s) should or shouldn’t be accepted to form part of thecourt file. What now appears to me is that the County Court of Victoria still hasn’t managed to

have a proper system in place, and is subject to any abuse/misuse/corrupt conduct by court staff.It is clear that matters need to be fully investigated because no judge can rely upon the court file

to be in a proper state of affairs to hear and determine matters. It is not for me to do the job of theChief Justice to manage the court system appropriately. Stop the private communication withlawyers and ensure my complaint is independently and appropriately dealt with.I look forwards to your reply and confirming appropriate resolve to the issues raised in thiscorrespondence.This correspondence is not intended and neither must be perceived to state all issues/details.

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

MAY JUSTICE ALWAYS PREVAIL®(Our name is our motto! )

END QUOTE 20-2-2016 CORRESPONDENCE

I have further notified Buloke Shire Council as follows:QUOTE 21-2-2016

Elliott Stafford and Associated [email protected]

Cc: County Court of Victoria [email protected]

Ref; 20160221-Schorel-Hlavka O.W.B. to ES&a Your ref LA-05-06-Re APPEAL-15-2502 -Re List of documents-etc

Alison,I remind you that since the 17 September 2015 hearing before the Magistrates Court of Victoria at

St Arnaud you still have failed to provide me with a list as to the about 200 pages that were used to claim

cost against me. Neither did you clarify if copies were left with the court. I urge you to clarify each andevery document that allegedly was relied upon.I trust you will ensure that the list of documents will be provided by return email, after all I expect thatsuch a list would have been existing at the time of 17 September 2015 hearing and not some bunch of papers were on the bar table that could have been for all I know part of some other case and/or cases. Ican assure you that this is an issue to me and the court may have to deal with this as to legal technicalitiesrelevant to the proceedings. For example each and every document could be challenged as to the content being justified or not and relevant to the issues and as such no order of cost was appropriate in that regardalso. And I may seek you to be cross-examined regarding this also. And you may be called as a “hostilewitness”! It is not the first time I cross-examined an opponent lawyer, and so far each time an opponentought to object the judge made clear I was well entitled to do so!In my view any competent judge will hold it abhorrent that without a shred of evidence a

magistrate/judicial registrar would make orders for more than $3,200 including more than $1,600regarding paperwork that is totally unknown to what it relates to. And an appeal is not so the lawyershaving misused/abuse court processes can have a second bite to try to justify a claim for cost on basis ofdocumentation of which not a shred of evidence exist on court file what those documents related to, ifthey were not just blank papers grabbed from a ream of paper. In my view it is this kind of judicialmisuse/abuse that undermines the credibility of the judiciary. Magistrates/Judicial Registrars areseemingly handing out orders like candies to members of the legal profession and place the court atridicule by doing so without a shred of any proper legal process being followed. In my view there should be an independent inquiry as to this incident! It is the modus operandi of the courts to so to say toundermine the very democratic legal processes embedded as legal principles in our constitution!http://archive.sclqld.org.au/judgepub/2014/margaretmcmurdo160414.pdf The Self-Represented Litigant in the Court ofAppeal Supreme Court of Queensland AIJA Assisting Unrepresented Litigants: a Challenge for Courts and

Tribunals Conference, Coogee Beach, Sydney, 16 April 2014. The Hon Justice Margaret McMurdo AC sets

mailto:[email protected]:[email protected]:[email protected]://archive.sclqld.org.au/judgepub/2014/margaretmcmurdo160414.pdfhttp://archive.sclqld.org.au/judgepub/2014/margaretmcmurdo160414.pdfmailto:[email protected]:[email protected]


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out how the Queensland court and members of the legal profession are seeking to assist. Well inVictoria it appears to me we have so to say a corrupt court system. The fact that the Registrar ofCounty Court of Victoria has seemingly placed my written submissions ADDRESS TO THECOURT on correspondence may underline this also, this this should have been placed on courtfile as a proper document, as accepted in other courts, including the High Court of Australia.I can assure you that apart of the outcome of litigation now before the courts there will be effort to stampout this kind of misuse and abuse of the legal processes.This document is not intended and neither must be perceived to refer to all details/issues.


Awaiting your response, G. H. Schorel-Hlavka O. W. B. (Friends call me Gerrit)END QUOTE 21-2-2016

In my experiences over about 4 decades appearing at the Bar table, etc, the courts areconsiderably disorganised and judges fail to be properly educated as to their judicial powers, andfraud and corruption in my view is rife by members of the legal profession. If anything for themagistrates court of Victoria at St Arnaud on 17 September 2015 to issue orders without a shredof “evidence” may underline this also.

Because Her Honour Justice Margaret McMurdo in her statement (2014) seems to rely upon theVictorian system I have written to Justice Margaret McMurdo to expose reality. Victorian judgesand even the High Court of Australia seems to hold that the judiciary is the 3rd part of thegovernment, and to me this is of concern because it means the judiciary is bias in favour of thegovernment, and perhaps this is why Her Honour Mullaly J claimed that the court doesn’t needany evidence in ex parte (criminal) proceedings. This in my view makes His honour Mullaly Jand any other judicial officer holding this view not competent to adjudicate within the legal

principles embedded in the constitution. As I seem to have to be so to say ganged up by thecourts and its staff to railroad my OBJECTION TO JURISDICTION and my writtensubmissions in the ADDRESS TO THE COURT I find it appropriate to include my views in

regard of the courts as expressed to Her Honour Justice Margaret McMurdo. This also as toshow that I pursue the true meaning and application of the constitution and a legal system inaccordance to this within those provisions and not despite of it.QUOTE 21-2-2016 correspondence

The Hon Justice Margaret McMurdo AC 21-2-2016 [email protected], [email protected]

Re: 20160221-G. H. Schorel-Hlavka O.W.B. to The Hon Justice Margaret McMurdo AC -etc

Margaret,As a self-educated CONSTITUTIONALIST and (now retired) Professional Advocate

I have spent about 4 decades at the bar table, including representing/assisting lawyers.

I have suddenly various people sending me links to your speeches/statements and like tocomment upon this..

http://archive.sclqld.org.au/judgepub/2012/mcmurdop061012.pdf

A COMMENT ON JUSTICE MALCOLM WALLIS'S PAPER, "JUDGES AS

EMPLOYEES", JCA COLLOQUIUM, FREMANTLE, SATURDAY, 6

OCTOBER 2012, 10.30 AM – 12 NOON

This document deals with independents of the judiciary.

http://www.couriermail.com.au/news/queensland/court-of-appeal-president-justice-margaret-mcmurdo-defends-system-amid-infighting-over-chief-justice-tim-carmody/news-story/38a7fbac33d18236ab2789d48c061874?=

mailto:[email protected]:[email protected]:[email protected]://archive.sclqld.org.au/judgepub/2012/mcmurdop061012.pdfhttp://www.couriermail.com.au/news/queensland/court-of-appeal-president-justice-margaret-mcmurdo-defends-system-amid-infighting-over-chief-justice-tim-carmody/news-story/38a7fbac33d18236ab2789d48c061874http://www.couriermail.com.au/news/queensland/court-of-appeal-president-justice-margaret-mcmurdo-defends-system-amid-infighting-over-chief-justice-tim-carmody/news-story/38a7fbac33d18236ab2789d48c061874http://www.couriermail.com.au/news/queensland/court-of-appeal-president-justice-margaret-mcmurdo-defends-system-amid-infighting-over-chief-justice-tim-carmody/news-story/38a7fbac33d18236ab2789d48c061874http://www.couriermail.com.au/news/queensland/court-of-appeal-president-justice-margaret-mcmurdo-defends-system-amid-infighting-over-chief-justice-tim-carmody/news-story/38a7fbac33d18236ab2789d48c061874http://archive.sclqld.org.au/judgepub/2012/mcmurdop061012.pdfmailto:[email protected]:[email protected]


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Court of Appeal President Justice Margaret McMurdo defends system amid infighting over Chief Justice TimCarmodyJune 1, 2015 12:56pm

In this you refer to self -represented litigants, etc.QUOTE

“As lawyers you may be called on to defend the independence of the third arm of

government, the judiciary,” Justice McMurdo told the court.

END QUOTE

The truth is that the courts never were to be “the third arm of government”1HANSARD 12-4-1897 Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention)QUOTE Mr. BARTON:

It is provided that instead of, as before, the Parliament having power to constitute a judiciary, there

shall be a Supreme Court, to be called the High Court of Australia, as a part of the Constitution-that I

believe to be an improvement-and other courts which the Parliament may from time to time create or

invest with federal jurisdiction. END QUOTE.

Hansard 1-2-1898 Constitution Convention Debates

QUOTE Mr. OCONNER (New South Wales).-

Because, as has been said before, it is [start page 357] necessary not only that the administration of

justice should be pure and above suspicion, but that it should be beyond the possibility of suspicion; END QUOTE

.

Hansard 8-3-1898 Constitution Convention Debates

QUOTE

Sir JOHN DOWNER .-Now it is coming out. The Constitution is made for the people and the states onterms that are just to both.

END QUOTE

Being part of the constitution means that the court is not and cannot be part of the government.This is also important to understand that as shown below the constitution is between thegovernment and the people and so if the courts were part of the government then it would beimplied bias.When the Bronwyn choppergate was going on it was then argued that the then Prime Minister

Tony Abbott should deal with her. However as the Speaker she is totally independent from thegovernment and rules the House of Representatives as the President does the senate. Likewisethe chief Justice of the Supreme Court is totally independent from the government.Basically the Chief Justice should submit his estimated projective cost of running the judiciary tothe parliament and it then should debate if the monies so requested should be provided. Thegovernment could only place before the parliament its recommendations.Court neither should be associated with the Department of Justice ABN number as thisundermines the separation of powers..

HANSARD 10-03-1891 Constitution Convention Debates QUOTE

Dr. COCKBURN: All our experience hitherto has been under the condition of parliamentary

sovereignty. Parliament has been the supreme body. But when we embark on federation we throw


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perception of this court by others and some blurring of essential distinctions. I want to speak briefly ofthat now because I have been unable to say much about it until now and when my resignation becomeseffective, I fear that nobody will listen.

As we all know, the independence of the judiciary is a cornerstone of our constitutional system,particularly the independence of this court, which must, from time to time, tell the political arms whatthey can and cannot do according to law. As a court we will rarely, if ever, be popular with politicians,

but while I have been sitting here, I have seen what appears to me to be some erosion of this court's

independence.

One of the most public examples recently was the refusal of the executive to accept the decision onremuneration handed down by the tribunal established by the Parliament for the very purpose of freeing

both Parliament and the executive from the invidiousness of the decision-making process over judicialsalaries and so ensuring the independence of which I am speaking.

Less well known was the refusal of earlier governments to allow that the court's own chief executiveofficer be appointed by the Governor-in-Council and its insistence that that officer be appointed by and beultimately answerable to the Department of Justice, which is what happened.

That appears now, if I may say so, to have been but part of a movement towards this court's becomingabsorbed into that department, and it is that to which I want to draw attention in particular; for such a

movement must be reversed if this court is to have, and to keep, its proper role under the constitution.

This court is not some part of the public service and it must never be seen as such. Established as a courtof plenary jurisdiction and with supervisory jurisdiction over all other courts and tribunals, this court isthe third arm of government, co-equal in concept with Parliament and the executive. Its role, inter alia, isto control and to limit those other arms according to law and to that end to stand between those other armsand the citizen. Hence the emphasis on the court's independence, especially from the executive.

Yet within the Department of Justice this court is now identified and dealt with - would you believe

- as "Business Unit 19" within a section labelled "courts and tribunals", a section which

indiscriminately includes all three tiers of the court structure and VCAT.

This court is subject to direction on the raising of taxes in the form of court fees - in that these are prescribed by departmental regulation, even if a part of those fees is redirected to the court by thedepartment at its discretion. The other day the department used a regulation to prescribe a procedure inthis court, apparently in disregard, if not in defiance, of the convention that such matters are for rules ofcourt.

And perhaps most troubling of all: the judges' computers, which were provided by and through thedepartment, are but part of the departmental network. I do not say that departmental officers ordinarilyavail themselves of the access that that affords; one hopes the department has some controls in place. Butaccess is possible, and that seems to me altogether inappropriate when the state, in one form or another, isthe major litigant in this court, and sometimes on matters of critical import to the wider community.

Nobody is suggesting that the executive would ever seek to influence a judge's decision directly,

otherwise than by argument in open court, but what has been happening is more insidious. What isevolving is a perception of the court as some sort of unit or functionary within the Department of Justice,a perception which is inconsistent with this court's fundamental role and underlying independence.

Indeed I think it is fair to say that the Supreme Court, despite its dominant role within the court structureand its constitutional role vis-a-vis the other arms of government, is now seen by some in authority as nodifferent from a tribunal, nowadays the Victorian Civil and Administrative Tribunal in particular. That issimply not the case; yet the distinction between a court and a tribunal has been steadily undermined overthe years, and it must be restored if the proper constitutional position is not 2to be subverted.

The basic distinction is easy enough. A court exercises judicial power and must be, and be seen to be,impartial and so must be independent of all else. Accordingly, its judges are appointed once and for all,and ideally, without hope of additional gain or reward from anyone, including any other arm ofgovernment. Hence Parliament's creation of the specialist remuneration tribunal. In contrast to a court, a


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tribunal, properly so called, exercises administrative functions but not judicial power, and many thingsflow from that. Such a tribunal may be an arm of the executive; its members may be appointed for fixedterms, with the possibility of renewal at the discretion of the executive; and the need is not so great, to seethat their remuneration is fixed independently of the executive.

You will see, now, how far the distinction between court and tribunal has become blurred. While theVictorian Civil and Administrative Tribunal is staffed by a few judges, it consists mainly of membersappointed for fixed terms, capable of renewal at the discretion of the executive - and hence my alarmwhen, in addition to its administrative work, that tribunal was given some judicial power to exercise, for

the latter is altogether inconsistent with such a form of tenure.

There is talk now of acting judges for this court, and again, because this is a court which is exercising judicial power, such would be anathema. It is one thing to tolerate the occasional acting appointment tothis court for a limited time or purpose; it is altogether different to institutionalise such temporaryappointments at the discretion of the executive. Judges of a court properly so called must have security oftenure or, in a relatively small community like this in Victoria, the whole system is put at risk. Our courtshave been remarkably free from any taint of bias or corruption; let it remain that way. A judge must be,and be seen to be, impartial and so must eschew all other interests which might one day give rise toconflict or the appearance of bias.

In my book, the judge must forgo the current cult of the individual: to adapt Edmund Burke, "individuals pass like shadows, but the (institution) is fixed and stable". The judge is sometimes accused of remoteness but in one sense that is no more than the reverse side of the commitment, the total commitment, which isdemanded of the appointee.

John D. Phillips is retiring as a judge of the Supreme Court of Victoria. This is part of his farewelladdress to the court.

END QUOTE

Constitutionally there is a division between the Judiciary and the legislators and executives..

It should be noted that the wording “and for the due and impartial administration of

justice which Oaths the said Chief Justice or Judge is hereby required to administer”

leaves it beyond doubt that the Chief Justice or Judge must “for the due and impartialadministration of justice” make an oath. As such the “separation of powers” in the State of

Victoria is enshrined in this Proclamation as the Governor cannot act otherwise nor so any judge.

FOURTH SUPPLEMENT

TO THE

VICTORIA

GOVERNMENT GAZETTEOF FRIDAY, DECEMBER 28, 1900.

Published by AuthorityNo. 2.] WEDNESDAY, JANUARY 2. [1901.

QUOTEfollows :— IV. Every person appointed to fill the Office of Governor shall with, all due solemnity, before entering

on any of the duties of his Office, cause’ the Commission appointing to be Governor to be read and published at, the seat of Government, in the presence of the Chief .Justice, or some other Judge of theSupreme Court of the State, and of she Members of the Executive Council thereof, which being done, heshall then and there take before them the Oath of Allegiance, in the form provided by an Act passed in theSession holden in tile Thirty-first and Thirty-second years of Our Reign, intituled an Act to amend theLaw relating to Promissory Oaths ; ,and likewise the usual Oath for the due execution of the Office ofGovernor, and for the due and impartial administration of justice which Oaths the said Chief Justice orJudge is hereby required to administer.

END QUOTE


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The Office of the Governor (Victoria) as per 2-1-1901 PROCLAMATION, that was Gazettedrequires that the Governor appoints independent judges! As such, any notion that there beingno separation of powers in the states utter and sheer nonsense.

I understand that you referred to the Queensland 2001 constitution.In the Colosimo case, where he was represented by a barrister then Victoria Legal Aid advisedMr Colosimo to purge his contempt. Mr Colosimo was charged with CONTEMPT OF COURTand had already endured 6 hearings as well as was placed under guardianship.

I was requested by Mr Colosimo to take over the case (that already had involved about 20lawyers) and did so. I succeeded in having the administration orders wet aside as well as when Iappeared before Her Honour Harbison J the contempt proceedings were stopped in its tracks. Iopposed the contempt application to be withdrawn as I held it was beyond the powers of the

party filing this to do so as once filed it became the property of the court/tribunal and HerHonour Harbison J in her Reason of Judgment agreed with my submission.I discovered that the Office of the Public Advocate had misled the (medical) expert witnessesthat Mr Colosimo refused to accept he was convicted for CONTEMPT OF COURT and theexpert witnesses on that basis held Mr Colosimo should be under administration. However Iexposed and Her Honour Harbison J made this clear Mr Colosimo was never convicted. As amatter of fact I discovered that despite 6 previous hearings for contempt Mr Colosimo was never

even formally charged with contempt. And as I exposed to Her Honour Harbison J Mr Colosimonever could have committed contempt.As such while judges tend to blame Self Represented Litigants and that perhaps in Queensland amere ab out 11% succeed in appeals reality is (in Victoria) that parties represented by membersof the legal profession are often having their case conducted far worse than a Self RepresentedLitigant may ever do.As I exposed over the years there is a private communication channel between members in thelegal profession and the courts, even that judges issue orders merely on a phone call by a lawyer,without any formal application let alone a hearing.

The following is the conduct of a firm of lawyers representing a client, besides having telephone

communications with the court without the knowledge of the other party!Some of the issues but not in any of priority

OBJECTION TO JURISDICTIONFire Prevention Notice in violation to the provisions of the Country Fi re Authority Act 1958 Fire Prevention Notice contains demands exceeding delegated powers.Fire prevention Notice in valid in lawInfringement Notice invalid in law based on invalid Fire prevention Notice.Summons invalid in law based on Invalid Infringement Notice.Summons invalidly issues as Infringement Noticed failed to have been withdrawn.Summons hearing in the wrong court venueFailure to serve “full brief”

No evidence to prove jurisdiction. No evidence whatsoever to justify 20 August 2015 orders at St Arnaud venue No evidence to legally justify 17 September 2015 orders at St Arnaud venueFailing to file and serve Notice of Appearance regarding appealFailing to file and serve for Leave to file and serve out of time Notice of AppearanceFailure to provide 27 October 2015 requested “ brief ” Failing to comply with 30/10/2015 order to serve via Australia Post by 9/11/2015 “full brief” Failing to request “leave to serve out of time “full brief”. Providing misleading Form 11 statement dated 25/11/2015 re 18/3/2013 alleged hearingProvide different Form 11 for 22/2/2016 hearing without full briefFailure by State Government to provide relevant FOI material requested 9/12/2015


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While you referred to the Queensland Constitution Act 2001 I did in 2009 file an writtensubmission ADDRESS TO THE COURT in which I canvassed extensively the issue about the

purported Queensland constitution and that it is a worthless constitution. I will not now delveinto all the details but safe to say it is utter and sheer nonsense to hold there is a Queenslandconstitution Act 2001 as much as there is no valid Victorian constitution act 1975.On 19 July 2006 in the County Court of Victoria I successfully appealed 2 convictions ofFAILING TO VOTE that compulsory voting was unconstitutional and that the VictorianConstitution Act 1975 was unconstitutional.At the time I also challenged the validity of “Australian citizenship” as the Commonwealth wasspecifically denied this by the Framers of the Constitution. Not even the Queensland Attorney-Generalchallenged me on this either! (Having been served with a s78B NOTICE OF CONSTITUTIONALMATTER)I HAVE NO DOUBT THAT YOU DO MEAN WELL WITH YOUR WRITINGS BUT DO

UNDERSTAND THAT THE JUDICIARY IS NOT PART OF THE GOVERNMENT BUT ON

THE SAME LEVEL AS THE GOVERNMENT AND THE PARLIAMENT AS PART OF THE

CONSTITUTION.

As for the spat with the chief Justice about this contact with a person not being a party to the proceedings,it appears to me (without knowing the finer details) that you are correct in that this is a violation because a judge must decide matters upon the “evidence” before the court and not seek to obtain the views of some

person without the parties of the dispute being aware what is communicated and what effect, if any, thismay have on the decision of the court. It could be seen equally as “fraternizing” with one of the partieswhere the person spoken to might present views to support a particular party before the court. By this placing the legal validity of any subsequent order in jeopardy/doubt..

Ambard v Att Gen for Tr in idad and Tabaco (1939) AC 322 at 335

QUOTE The basic of the right to fair comment is the Right of Freedom of speech and the inalienable right ofeveryone to comment fairly upon matters of public importance.

END QUOTE

No wrong committed in criticism of administration of justice:LORD ATKIN in AMBARD v ATTORNEY-GENERAL for TRINI DAD and TABAGO (1936) A.C. 332, at 335

QUOTE But whether the authority and position or an individual judge, or the due administration of justice, is concerned,no wrong is committed by any member of the public who exercises the ordinary right of criticising, in goodfaith, in private or public, the public act done in the seat of justice. The path of criticism is a public way, thewrong headed are permitted to err therein: provided that members of the public abstain from imputing impropermotives to those taking part in the administration of justice, and are genuinely exercising a right of criticism,and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not acloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments ofordinary man

END QUOTE .

The right for the public to be informed about the judicial process being properly applied or acts:THE COMMENTS OF SIR JAMES MARTIN C.J., IN THE MATTER “THE EVENING NEWS” (1880) N.S.W.LR 211 AT 239.:

QUOTE The right of the public to canvass fairly and honestly what takes place here cannot be disputed. Our practice ofsitting here with open doors and transacting our judicial functions as we do, always in the broad light of day,would be shown of some of its value if the public opinion respecting our proceedings were at all times to berigidly suppressed. We claim no immunity from fair, even though it be mistaken criticism.

END QUOTE .

As to value of criticism, keeping judge subject to rules and principles of honour and justice;(a) R v FOSTER (1937) St. E Qd 368(b) Re WASEMAN (1969) N.Z.L.R. 55, 58-59(c) Re BOROVSKI (1971) 19 D.L.R. (34) 537(d) SOLI CITOR-GENERAL v RADIO AVON LTD (1978) 1 N.Z.L.R. 225, at 230-31


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It is my view that no matter how serious the allegations may be against a person we cannot afford toignore the rules of the court to administer justice to all in equal manner. Many a person convicted byhindsight proved to be innocent of wrongdoing and that indicates that there remains a failure in the systemto allow for this.I will now refer to:http://archive.sclqld.org.au/judgepub/2014/margaretmcmurdo160414.pdfThe Self-Represented Litigant in the court of appeal supreme court of Queensland AIJA Assisting UnrepresentedLitigants: a Challenge for Courts and Tribunals Conference, Coogee Beach, Sydney, 16 April 2014.

I referred to the Colosimo case as an example where it not for me taking over the case and expose all themisconceptions and that Mr Colosimo was totally innocent of any wrongdoing, he could have ended up in prison, and for what? While I understand you referred to the low percentage of successes and SRL’sdropping issues and raising issues that are so to say a waste of courts time, reality is that too often judgeshave a pre-determined opinion and by this deny a SRL proper consideration. After all you and many other judges would have held that compulsory voting is lawful, but I nevertheless succeeded on the basis it wasunconstitutional!

HANSARD 17-3-1898 Constitution Convention Debates

QUOTE Mr. DEAKIN.-

What a charter of liberty is embraced within this Bill-of political liberty and religious liberty-the

liberty and the means to achieve all to which men in these days can reasonably aspire . A charter of

liberty is enshrined in this Constitution, which is also a charter of peace-of peace, order, and good

government for the whole of the peoples whom it will embrace and unite.

END QUOTE

And

HANSARD 17-3-1898 Constitution Convention Debates

QUOTE

Mr. SYMON (South Australia).- We who are assembled in thi s Convention are about to commi t to the

people of Australi a a new charter of uni on and li berty; we are about to commit th is new Magna Charta

for their acceptance and confirmation, and I can conceive of nothing of greater magnitude in the whole

history of the peoples of the world than this question upon which we are about to invite the peoples of

Australia to vote. The Great Charter was wrung by the barons of England from a reluctant king. This newcharter is to be given by the people of Australia to themselves.

END QUOTE

Clearly, judges should not introduce their own personal views based often on misconceptions, but relyonly upon the evidence that is placed before the court and base their considerations accordingly, and perhaps more SRL’s may succeed then in their cases! Let me add some examples:I was representing a party and before we attended court orders were issued albeit no known applicationhad been served or for that filed.At the hearing I made clear that I wanted to place on record my objection to such kind of orders beingmade. A month later the same judge again issued orders with any known application being files let aloneserved and no hearing. I filed then a complaint against this judge who then was disqualified from thecase. Months later I discovered that the opponent lawyers had 9 phone calls to the judge of which 2resulted with orders.

http://archive.sclqld.org.au/judgepub/2014/margaretmcmurdo160414.pdfhttp://archive.sclqld.org.au/judgepub/2014/margaretmcmurdo160414.pdf


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In another case I was the constitutional consultant to a law firm when orders were issued without anyknown application or Affidavit. I suggested to the lawyer to authorise me to check the court files. He did.I discovered that an Affidavit in excess of 100 pages was on court file but never served.While I was at the Registry searching the files I noticed how one person was taking the Affidavits apart ofanother case. And lawyers simply removing files from the “court file”. In another case a person asked my assistance in responding to his wife’s affidavit. I urged him to get a

copy of the wife’s Affidavit on court file. He wondered why but nevertheless did and it proved to beidentical. He subsequently responded to the wife’s affidavit and filed it. Weeks later I asked him to get

another copy of his wife’s affidavit, and again after some talking he did. This time the wife’s affidavit had been tampered with and numerous changes made but the Affidavit was not re-sworn. I will give anexplanation how an alteration can change the meaning;Say the wife stated in Paragraph 3 “My husband was never violent”. The Husband replied; “As to paragraph 3 I agree with this. Now the wife’s lawyer goes to the Registry and crosses of the word “never” by this it becomes Paragraph 3 “My husband was never violent”. Usually I ask a trail judge if I caninspect the court file and often find up to 8 alterations per page which are not initialled by the deponent.In one case the entire content was different and the trail judge, not the opponent lawyers, then argued that“obviously they must in error have served the draft Affidavit” and commented “Now you know it and socontinue”. Refusing to hold the purported affidavit to be inadmissible. In another case the DVD was created a day after the Affidavit was sworn. The judicial officer argued thatthis is normal when making copies but the other party couldn’ t provide any DVD that was dated on or

before the day the affidavit was sworn, nor did the DVD contain the details claimed in the affidavit. Atone stage the opposing barrister complained; Mr Schorel0-Hlavka is surgically taking apart my witnessaffidavit”.Often judges couldn’t locate certain documents on court file where I insist at commencement of thehearing the judge checks each and every document to be on court file. And then I often provide sealedcopies. I understand lawyers at times remove documents from court file and then after the trail replacethem so for an appeal court it appears the files are in act but the judge at the time never realised thatdocuments were missing.When Mr Jeff Kennett was Premier of Victoria I urged him to install metal detectors because I wasconducting since 1982 a special lifeline service under the motto MAY JUSTICE ALWAYSPREVAIL® but understood that some persons contemplating suicide desired to take some judges withthem on their final journey eve n so innocent people would also be involved. And while metal detectors

were installed no one actually bothers to check any person leaving the Registry (having had access to thecourt files) if he/she has documents that belong in the court files. On one occasion there was this gigantic bundle of court documents left on the counter but no registrar in sight. Anyone could have walked offwith the files.One judge issued a court order sentencing a party to 21 days in imprisonment 2 days before the trail wascompleted. After the trail was completed another set of orders were issued for the same! As such the judge had predetermine the case before the case was completed.Judges going to have an evening out with the first defendant without the plaintiff being made aware of it.A judge giving “evidence” from the bench, but refused to be cross-examined by me in the witness boxwhen I exposed he was totally wrong in facts.Judges fabricating reason of judgment to suit their predetermined orders, in blatant disregard of theevidence presented to the court.

QUOTE In the Marriage of Tennant (1980) 5 FLR 777 at 780As no grounds for appeal are required to be specified in the notice of Appeal, which, onfiling institutes the appeal (reg 122), there is no limitations of the scope of the appeal and allfindings of fact and law made in the lower court in relation to the decree appealed are inchallenge and cannot be relied on by the appellant or the respondent. All the issues (unless

by consent) must be reheard. This of course brings me to the point of the absence of reasonfor the magistrate’s decision in this case. Perhaps reasons were given orally but not recorded

for the record. Apart from the requirement of such reason for the purpose of the appeal process, there is the basic ground of criticism that litigants who go to court, put theirwitnesses up, argue their case and attempt to controvert the opposing case are entitled to

know, if they lose, why they lost. I f they are given no reason they may be enti tled to feel


16/47




the decision against them was conceived in prejudice, bias, or caprice. In such a case not

only the litigant, but justice itself, is the loser.

Magistrates should realise, even more than they seem to do, that this class of business is notmere ordinary trivial work, and they should deal with these cases with a due sense ofresponsibility which administrations of the summary jurisdiction Act and the far reachingconsequences of the orders that they make thereafter entail. [Baker v Baker (1906) 95 LT549; In Robinson v Robinson (1898) p135; and again in Cobb v Cobb (1900) p145] it was

stated that when making orders of this kind, from which lies an appeal to other courts, it isthe duty of the magistrate not only to cause a note to be made of the evidence, and of hisdecision, but to give the reasons for his decision and to cause a note to be made of hisreasons... Elaborate judgements are not required, but the reasons which lead the magistrateto make his order must be explicitly stated.

END QUOTE

Well in Victoria a court issued orders in a criminal matter without any “evidence” having been before thecourt and ignoring the written OBJECTION TO JURISDICTION. An appeal judge made known thatthe Magistrates Court of Victoria doesn’t need any evidence in (criminal) ex parte hearing to convict.

Hansard 8-2-1898 Constitution Convention DebatesQUOTE

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

heard.

Mr. HIGGINS.-Both sides heard.

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

the state thinks fit. This provision simply assures that there shall be some form by which a person

accused will have an opportunity of stating his case before being deprived of his liberty. Is not that a

first principle in criminal law now? I cannot understand any one objecting to this proposal.

END QUOTE

Again the above states is merely so to say the tip of the iceberg and let no one tell me we have a proper

judicial system within constitutional context. Blaming SRL is the easy way out, and that they may persistin an appeal despite being warned they have no justified case may be because the SRL knows the case andnot that the others are aware that the court file might have been tampered with.Transcripts are neither trustworthy as for expel in a custody case the husband in evidence stated “told MrAllen that Scott is the Husbands”, while the transcript later showed “told Mr Allen that ScottishBastard”. Upon a complaint this was corrected. How many transcript however are left uncorrected that anappellated court misconceive what really transpired? Often I found numerous in correct statement on one page alone of transcripts, this because I read often from a pre-typed document (WITTEN SUBMISSIONStitled ADDRESS TO THE COURT) and then later compare it with the transcript!

The above is merely so to say the tip of the iceberg of the corrupt/fraudulent conduct going on! Hence onappeal, if a SRL can afford this, the appeal court may never even realise what really went on with the

court file, etc.Did you realise the Letters Patent for the Governor-General doesn’t provide for a “pardon” as is providedfor with Governors? This is because criminal cases against a person are not to be dealt with in a Federalcourt but a State Court exercising federal jurisdiction, by their peers!

This document is not intended and neither must be perceived to refer to all details/issues.

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


END QUOTE 21-2-2016 correspondence


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QUOTE S78 NOTICE OF CONSTITUTIONAL MATTERS

FORM 69

NOTICE OF A CONSTITUTION MATTER O 73 r 1 High Court Rules

UNDER SECTION 78B of the JUDICIARY ACT 1903

MAGISTRATES COURT AT HEIDELBERG No. of 2002

GERRIT HENDRIK SCHOREL-HLAVKA Defendant

and

AUSTRALIAN ELECTORAL COMMISSION Plaintiff

NOTICE OF CONSTITUTIONAL MATTER

1. The Defendant GERRIT HENDRIK SCHOREL-HLAVKA gives notice that the proceedings involves amatter arising under the constitution or involving its interpretation within the meaning of section 78B of the

judi ciary Act 1903 .

2. That the Defendant objected to the jurisdiction of the Magistrates’ Court at Heidelberg to hear the mattersarising of the proceedings instituted by the applicant in regard of matters relating to the PURPORTED Federal general election on 10 November 2001.

3. The said Magistrates’ Court adjourned matter, on 16 September 2002, for hearing of the question of “legal jurisdiction” to be heard on 4 December 2002.

4. The outline of the case at hand and is as follows;(a) The Defendant was born on 7 June 1947 in Rotterdam, The Netherlands of parents being

Dutch nationals and as such, the Defendant by birth was a Dutch national.(b) The Defendant became lawfully married to his (then) wife Ingrid Maria Edith Schorel on 2

February 1969 and subsequently the had a child born 13 December 1969 named GuidoAlexander Silvester Sebastien Viggo Schorel.

(c) The Defendant was at that time in the Dutch (conscripted) army serving within NATO at the(then) Iron curtain in West Germany, and later joined the regular Dutch army, from which heresigned to migrate to Australia, upon the invitation of the Australian government to do so.

This affidavit was filed by the applicant GERRIT HENDRIK SCHOREL-HLAVKA

Of: 107 Graham Road, Rosanna East (Viewbank), In the State of Victoria, 3584

Phone number: 03 – 9457 7209

(d) The Defendant, his (then) wife and child entered Australia on 7 April 1971 as“aliens”/”immigrant” all of Dutch nationality, having been provided with “a visa with

Permanent residence” to enter Australia (e) The Defendant applied naturalization to become an naturalized Australian.(f) The Defendant naturalized under the Commonwealth of Australia “Australi an Citizenship

Act 1948 ” on 28 March 1994, to take on the Australian nationality. The ceremony was

conducted at 55 King Street, Melbourne at the Department of Immigration office.(g) Unbeknown to the Defendant at the time of the naturalization, on 28 January 1898 the framers

of the Commonwealth Constitution Bill debated at the Constitutional convention, asrecorded in the Hansard, the issue of alien.

(h) Unbeknown at the time of nominating as a candidate for the Federal election, the Hansardindicates that the framers required a person to have State citizenship to obtain Australian


18/47




citizenship, and so by the time of the 30-11-2002 election the Defendant discovered he did notappear to be a qualified elector for not having State citizenship.

Hansard 2-3-1898

Dr. QUICK (Victoria).-I beg to move-

That the following new sub-section be inserted after sub-section (21):-

XXIA. Commonwealth citizenship.

I propose to confer upon the Federal Parliament the power to deal with the question of

Commonwealth citizenship. I have looked through the Bill very carefully, and I do not

see the slightest allusion in it to a federal citizenship.

And;

Dr. QUICK.-If we are to have a citizenship of the Commonwealth higher, morecomprehensive, and nobler than that of the states, I would ask why is it not implanted in theConstitution? Mr. Barton was not present when I made my remarks in proposing the clause. Ithen-anticipated the point he has raised as to the position we occupy as subjects of the British

Empire. I took occasion to indicate that in creating a federal citizenship, and in definingthe qualifications of that federal citizenship, we were not in any way interfering withour position as subjects of the British Empire. It would be beyond the scope of the

Constitution to do that. We might be citizens of a city, citizens of a colony, or citizens ofa Commonwealth, but we would still be, subjects of the Queen. I see therefore nothingunconstitutional, nothing contrary to our instincts as British subjects, in proposing to place

power in this Constitution to enable the Federal Parliament to deal with the question offederal citizenship. An objection has been raised in various quarters-as by the honorable andlearned members (Mr. O'Connor and Mr. Wise)-to the effect that we ought to define federalcitizenship in the Constitution itself. I have considered this matter very carefully, and it hasseemed to me that it would be most difficult and invidious, if not almost impossible, to framea satisfactory definition. There is in the Constitution of the United States of America a

cast-iron definition of citizenship, which has been found to be absolutely unworkable,

because, among other things, it says that a citizen of the United States shall be a natural-born or naturalized citizen within the jurisdiction of the United States, and it has been

found that that excludes the children of citizens born outside the limits of this

jurisdiction. That shows the danger of attempting definitions, and although I have

placed a proposed clause defining federal citizenship upon the notice-paper, the subject,

seems to me surrounded with the greatest difficulty, and no doubt the honorable and

learned members (Mr. Wise, Mr. O'Connor, and Mr. Symon) would be the first to

attack any definition, and would be able to perforate it. In my opinion, it would be

undesirable to implant a cast-iron definition of citizenship in the Constitution, because it

would be better to leave the question more elastic, more open to consideration, and

more yielding to the advancing changes and requirements of the times.

And

Mr. SYMON.-In clause 52 we have given to the Federal Parliament the power ofdealing absolutely with immigration. If we have given that power, then incidental to that

power they will have an exclusive jurisdiction as to the status and citizenship of people

who come into this country. If, therefore, the Federal Parliament are to have this entire

control of the citizenship of the nation, then they have a right to say who shall be

admitted to that citizenship and who shall be excluded, and they must also have the

power to define the terms of that citizenship. (Note; Subsequently on 2-3-1898 the convention defeated a bill to inset into theCommonwealth Constitution legislative powers for the Commonwealth to define and declare“citizenship”.)

Hansard 2-3-1898Mr. OCONNOR (New South Wales).-

The Federal Parliament could do nothing in the way of defining the qualification ofcitizenship or the rights of citizenship beyond the limits of the Constitution.


19/47




Hansard 2-3-1898

Mr. OCONNOR (New South Wales).-

There is no territorial entity coincident with the Commonwealth. Every part of the

Commonwealth territory is part of the state, and it is only by virtue of his citizenship of

a state that any person within the bounds of the Commonwealth will have any political

rights under the Constitution. Of course, when I speak of a state, I include also any

territory occupying the position of quasi-state, which, of course, stands in exactly the

same position.

And;Hansard 2-3-1898

Mr. DOBSON.-Does not that create them citizens?

[start page 1751]

Dr. QUICK.-No, it does not in any way define citizenship. It refers to the people without inany way defining or stating the mode of ascertaining who are the people. If the word "people"in this earlier section is to be considered as giving the test of citizenship, then all the peoplewithin the jurisdiction of the Commonwealth of all races, black or white, or aliens, will beconsidered members of this new political community. What I want to see inserted in the Billis a constitutional definition of citizenship.

And;

Dr. QUICK.-I want to see either a constitutional definition in the Bill or the powerconferred on the Federal Parliament to define what constitutes citizenship. If that bedone, then of course there will be two citizenships within this United Australia. There will be

the citizenship of the state in which a person resides, the rights and duties of which will

be determined by the laws of the state, and there will be the wider federal citizenship,

the rights and duties and incidence of which will be defined by the Federal Parliament.

Hansard 2-3-1898

Mr. BARTON (New South Wales).-We have provided in this Constitution for the exerciseof the rights of citizenship, so far as the choice of representatives is concerned, and we havegiven various safe-guards to individual liberty in the Constitution. We have, therefore, giveneach resident in the Commonwealth his political rights, so far as the powers of legislation andadministration intrusted to the Commonwealth are concerned. Let us consider the position.Before the establishment of the Commonwealth, each subject is the subject of a state. Afterthe Commonwealth is established, every one who acquires political rights-in fact, every onewho is a subject in a state, having certain political rights, has like political rights in theCommonwealth. The only difference between the position before the institution of theCommonwealth and afterwards is that, so far as there are additional political powers given toany subject or citizen, be has the right to exercise these, and the method of exercising them is

defined. So far the right of citizenship, if there is a right of citizenship under the empire,is defined in the Constitution. Now, each citizen of a state is, without definition, a citizen

of the Commonwealth if there is such a term as citizenship to be applied to a subject of

the empire. I must admit, after looking at a standard authority-Stroud's Judicial Dictionary-that I cannot find any definition of citizenship as applied to a British subject. No such term

as citizen or citizenship is to be found in the long roll of enactments, so far as I can

recollect, that deal with the position of subjects of the United Kingdom, and I do not

think we have been in the habit of using that term under our own enactments in any of

our colonies.

Mr. HIGGINS.-You had it in the Draft Bill.

Mr. BARTON.-Yes; but the term has since disappeared, and it disappeared owing to

objections from members of the Convention. I am inclined to think that the Convention is


20/47




right in not applying [start page 1765] the term "citizens" to subjects residing in theCommonwealth or in the states, but in leaving them to their ordinary definition as subjects ofthe Crown. If, however, we make an amendment of this character, inasmuch as citizens of thestate must be citizens of the Commonwealth by the very terms of the Constitution, we shall

simply be enabling the Commonwealth to deal with the political rights of the citizens of

the states. The one thing follows from the other. If you once admit that a citizen or

subject of the state is a citizen or subject of the Commonwealth, the power conferred in

these wide terms would enable the Federal Parliament to deal with the political rights of

subjects of the states. I do not think the honorable member intends to go so far as that,

but his amendment is open to that misconception.

Mr. HOWE.-Trust to the Federal Parliament.

And

Mr. BARTON.-When we confer a right of legislation on the Federal Parliament we trustthem to exercise it with wisdom, but we still keep as the subject of debate the question ofwhether a particular legislative right should be conferred on the Federal Parliament. Whenyou give them the right then you may trust them to exercise it fully.

Mr. HOWE.-And wisely.

Mr. BARTON.-But inasmuch as we have given to the Commonwealth the power ofregulating the entry of that class of persons, and the power of regulating them when they haveentered, is it not desirable that in that process there shall be left to the Commonwealth powerof repressing any such practices in the name of religion as I have indicated? If it be necessarythat there should be some regulative power left to the Commonwealth, then the argument thatwe should leave the matter to the states does not apply, because we give such a power to theCommonwealth.

Mr. HIGGINS.-Then all crimes should be left to the Commonwealth?

Mr. BARTON.-No; because you do not give any power with regard to punishing crimeto the Commonwealth, but you do give power to the Commonwealth to make special lawsas to alien races; and the moment you do that the power of making such laws does not remainin the hands of the states; and if you place in the hands of the Commonwealth the power to

prevent such practices as I have described you should not defeat that regulative power of theCommonwealth. I do not think that that applies at all, however, to any power ofregulating the lives and proceedings of citizens, because we do not give any such power

to the Commonwealth, whilst we do give the Commonwealth power with regard to alien

races; and having given that power, we should take care not to take away an incident of

it which it may be necessary for the Commonwealth to use by way of regulation.

And;

Mr. BARTON.-If the honorable member's exclamation means more than I have explained,then the best thing to do is to confide to the Commonwealth the right of dealing with thelives, liberty, and property of all the persons residing in the Commonwealth, independently ofany law of any state. That is not intended, but that is what the expression "Trust the FederalParliament" would mean unless it was limited by the consideration I have laid down. I amsure Dr. Quick will see that he is using a word that has not a definition in Englishconstitutional law, and which is not otherwise defined in this Constitution. He will be giving

to the Commonwealth Parliament a power, not only of dealing with the rights of

citizenship, but of defining those rights even within the very narrowest limits, so that the

citizenship of a state might be worth nothing; or of extending them in one direction, and

narrowing them in another, so that a subject living in one of the states would scarcely

know whether he was on his head or his heels. Under the Constitution we give subjects

political rights to enable the Parliament to legislate with regard to the suffrage, and pendingthat legislation we give the qualification of electors. It is that qualification of electors which


21/47




is really the sum and substance of political liberty, and we have defined that. If we are going

to give the Federal Parliament power to legislate as it pleases with regard to

Commonwealth citizenship, not having defined it, we may be enabling the Parliament to

pass legislation that would really defeat all the principles inserted elsewhere in the

Constitution, and, in fact, to play ducks and drakes with it. That is not what is meant by

the term "Trust the Federal Parliament."

Mr. HIGGINS.-You give the Federal Parliament power to naturalize.

Mr. BARTON.-Yes; and in doing that we give them power to make persons subjects of theBritish Empire. Have we not done enough? We allow them to naturalize aliens. That is a

power which, with the consent of the Imperial authority, has been carried into

legislation by the various colonies, and, of course, we cannot do less for the

Commonwealth than we have done for the colonies.

(i) That the framers of the Commonwealth Constitution specifically stated in regard ofcitizenship and political rights;

Hansard 2-3-1898

Mr. SYMON.-The political Union is the Commonwealth, the name of our country is Australia.

And

Every part of the Commonwealth territory is part of the state, and it is only by virtue of hiscitizenship of a state that any person within the bounds of the Commonwealth will have any

political rights under the Constitution.

And

You will find in dealing with this question of the definition of citizenship, that you will

have to be very careful in your definition, because it would be rather too limited a

definition to confine it only to persons who are natural-born or naturalized subjects,

unless you are dealing simply with the political aspect.

And

Mr. OCONNOR .-If they are political rights, they are conferred already by virtue of a person being an inhabitant of a state entitled to certain political rights, in such state. The

honorable member cannot intend to give a different right to a citizen politically under

the government of the Commonwealth from the right of a citizen of any state. The rights

are coterminous-coincident-and the political rights of every citizen of the

Commonwealth who is within the Commonwealth arise by virtue of his being a citizenof a state.

And

Mr. BARTON (New South Wales).-Let us consider the position. Before the establishment of the Commonwealth, each subject isthe subject of a state. After the Commonwealth is established, every one who acquires

political rights-in fact, every one who is a subject in a state, having certain political rights, haslike political rights in the Commonwealth. The only difference between the position beforethe institution of the Commonwealth and afterwards is that, so far as there are additional

political powers given to any subject or citizen, be has the right to exercise these, and themethod of exercising them is defined. So far the right of citizenship, if there is a right of

citizenship under the empire, is defined in the Constitution. Now, each citizen of a state

is, without definition, a citizen of the Commonwealth if there is such a term as

citizenship to be applied to a subject of the empire. (j) That for the Commonwealth to define citizenship as to whom can obtain it, and in what

circumstances, defeats other sections of the Commonwealth Constitu tion including117 Rights of residents in States


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A subject of the Queen, resident in any State, shall not be subjectin any other State to any disability or discrimination which wouldnot be equally applicable to him if he were a subject of the Queenresident in such other State.

As the Commonwealth then had the power, as example, to define a “citizen” not being a

subject of the Queen, by this not being entitled to the privileges, rights and duties of this orother sections of the Commonwealth Constitu tion .If a particular “alien” would or would not upon naturalization obtain the right to vote in Stateelections, etc.

(k) The framers placed beyond doubt that the only way a person obtains Australian citizenship isAUTOMATICALLY upon obtaining State citizenship!(l) The State of Victoria appears to have had at no time any Statute to declare what is State

citizenship(m) The Defendant was to his knowledge never provided with State citizenship, as such neither

could have obtained Australian citizenship.(n) The Defendant was at the time of naturalization residing at 10 Anderson Berriwillock,

Victoria, and was since naturalization enrolled on the State electoral roll.(o) The Defendant within the provisions of Section 41 of the Commonwealth Constitut ion was

granted to be an “elector’ in Federal elections. (p) The Defendant stood as a candidate for the Legislative Council, North Western electorate, in

1996 as an INDEPENDENT.(q) The Defendant stood as a candidate for the Legislative Assembly, Swan Hill electorate, in

1999 as an INDEPENDENT.(r) The Defendant married on 28 March 2001 and by marriage changed his name to GERRITHENDRIK SCHOREL-HLAVKA, by this annexing his wife late husbands surname, while hiswife annexed his name to become Mrs O. A. M. HLAVKA-SCHOREL.

(s) The Defendant moved to his current residential address on 28 March 2001.(t) Upon the issue of the writs on 8 October 2001, the Defendant notified in person the Australian

Electoral Commission of the change of details, which were then used to amend the electoralroll.

(u) The Defendant became an INDEPENDENT candidate for the seat of JAGAJAGA.(v) The Defendant then became aware that the wr its had not been issued “according to law” and

on 20 October 2001 notified the then Care Taking Prime Minister of Australia Mr JohnWinston Howard, the Leader of the opposition Mr Kim Beazley, the Australian ElectoralCommission and various others by e-mail that the writs were defective.

(w) Unbeknown to the Defendant at that time, the Gazette S421 containing the Proclamation ofthe Prorogue of the Parliament and the Dissolution of the House of Representative had notbeen published in on 8 October 2001, but had been published first in Canberra on 9 October2001, and in Victoria not until 10 October 2001, Western Australia not until 15 October 2001,

New South Wales not until 18 October 2001, Tasmania not until 22 October 2001 and in noState or Territory was ever any Proclamation published on 8 October 2001.

(x) The Defendant sought under protracted FOI Act request information details as to any deliverydetails, but other then computer records showing that the Special Gazette s421 was till at the(private) printers company on 9 October 2001, the Commonwealth claimed to be unable to

provide any further details/information upon the basis they didn’t exist! As such, there is no

evidence to prove what date and time the printers allegedly delivered S421 for publication andas such, the computer records showing 9 October 2001 are the only records that can be reliedupon as being reliable that at that time the Special Gazette S421 was still at the printers.

(y) That the Defendant holds that for the failure to p

Documents

20160222-Schorel-Hlavka O.W.B. to County Court of Victoria-Re Buloke Shire Council -APPEAL-15-2502-ADDRESS to the COURT-Supplement 3