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

Chapter 022A Failure of the case
NOTE; Keeping in mind when reading quotations that; COLOURING AND BOLDING/
UNDERLINING OF TEXT THROUGHOUT THIS DOCUMENTS HAS BEEN DONE BY THE
AUTHOR TO HIGHLIGHT CERTAIN SECTIONS. (Colouring not available in B&W version)
* Gary, do I need to ask if you found any deficiency in the judgments of the High Court of Australia
handed down on 14 November 2006 in regard of the Industrial Relations legislation of
WorkChoices purportedly being within subsection 51(xx) relating corporations powers?
**#** INSPECTOR-RIKATI®, as you may have gathered from previous Chapters, there were, so
to say, black holes in the judgments that I detected and having read the CALLINAN J judgment I
must state from onset that I was pleasantly surprised by the manner His Honour did set out matters,
even so I view he omitted to address certain critical issues, His Honour, and I state this term with
respect, in my view did attempt to go through extra ordinary length to make his judgment not just
readable to lawyers but I view to construct it in a manner, as I have done in my already published
books, to make it readable for anyone and avoiding the Reader having to get copies of numerous
documents just to discover what His Honour was referring to. He too quotes the precise statement
or statements he relies upon and this was for me very pleasing in reading.
His Honour also did set out counter arguments, as I tend to do, and by this gives his line of
argument to be a more balanced set out rather then, so to say, being one sided.
* So your score is?
**#** I consider the judgments of CALLINAN J, despite various omissions and some
misconceptions, to be worth 8 out of 10 score.
* That high?
**#** Well, you have to understand that his considerable set out of matters, far beyond what I had
expected but being relevant to his argument, must be taken into account against the omissions and
misconceptions. In my view, he is to be regarded as a true constitutionalist, who deplores any abuse
of judicial power and appears to me to support the notion that the People are the once who must
control by approval or by VETO what, if any, changes are made to the Constitution.
I must admit that this was the first ever judgment I am aware of I read of CALLINAN J, albeit his
own judgment refers to previous comments he had made in regard of the Constitution Convention
Debates, I may add in a positive manner. In my view, the Framers of the Constitution would be
proud on how CALLINAN J did argue the case, as while he may have omitted certain issues and
may have misconceived certain issues, in the end it appears to me his intentions were 100% in the
right directions. This is the kind of judge I would like to see to be the Chief Justice of the High
Court of Australia. After all I could not doubt his credibility for one moment to pursue what was the
intentions of the Framers of the Constitution, and this is what we need in judges who adjudicate at
the High Court of Australia, and not what may appear to me some political motivated judges who
are somehow coming across to me not the least concerned with what is constitutionally appropriate.
* Gee, that is a bit harsh, don’t you think?
**#** Look, I am not going to hide my views where this disastrous judgment affected millions of
people. Can indirectly or indirectly wreck the financial future of many, if not hundreds of thousands
then certainly thousands, as they struggle to get out of financial obligations made while they were in
a secure financial area now vandalised by the High Court of Australia decision.
Page 1 of Chapter 022A INSPECTOR-RIKATI® on IR WorkChoices legislation Page 1

A book about the validity of the High Courts 14-11-2006 decision
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* You mean vandalised by the Howard IR WorkChoices legislation?
**#** No, because the High Court of Australia could have made clear that it would not allow
unconstitutional legislation to be permitted to remain in the books, as it finally did with the Cross
Vesting Act in the HCA27 of 1999 case Wakim, where I had already for years challenged the
validity of this legislation to be applied but Dawson J in 1994 and 1005 pursued the usage of this
now declared unconstitutional legislation.
In this document I will not quote all documents such as “Is your Constitution Safe” by Nick
Hobson or the document “The Constitution is a PERPETUAL LEASE” because of the volume of
pages, and so the Reader simply has to check the CD version of this book where those documents
and others are in their entirety included as Chapters. As such, this document is a limited, indeed
very limited document and is not intended and neither must be perceived to set out all matters in
their entirety. Some of the issues canvassed in this document are for example (not set out in any
order of importance);
 The High Court of Australia can set aside the judgment of 14-11-2006 upon the basis of the
orders having been obtained by fraud.
 The High Court of Australia erred in law as it failed to give sufficient consideration to all
matters relevant to the case.
 The High Court of Australia erred in law as it gave to much consideration to matters which
ought not have been relied upon and/or it failed to appropriately consider those matters in
their correct environment, as such having them taken out of context, so to say.
 The High Court of Australia exceeded its judicial powers by having relied upon authorities
(previous decision) which it knew or ought to have known were in blatant violation of
constitutional judicial limitations.
 Thew High Court of……
* Moment Gary, are you saying that those are legal grounds and not just concocted views without
any kind of credible support?
**#** For your information, I planned this already in 2004, as my correspondence may indicate of
which some has been reproduced bin this document.
* But wasn’t the Amendment Act regarding WorkChoices not introduced until 2005, so how could
you then already have worked on a case a year or so before it eventuated?
**#** Because I never had any doubt that the Federal government would be heading this way to
undermine the federation by its power grab and seeking unification and as such ensured to make
records of what I was doing and publish it in previous books as to avoid anyone claiming I just
made it up now after the Federal Government won their case. Do not forget that I used the same
tactic when having this 5-year litigation against the Federal government lawyers and succeeded in
total including that all constitutional issues I had raised were left UNCHALLENGED.
While the High Court of Australia in Sue v Hill (Not sitting as a court of law but as Court of
Disputed Returns) claimed that progressively over time the Commonwealth of Australia became
an independent nation the Framers of the Constitution rather made the following comment.
Hansard 16-2-1898 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention) (Chapter 33 of the CD)
Dr. COCKBURN (South Australia).-Quite apart from the question of trade between state and state, is it not
necessary that the Commonwealth itself should have some power for the restriction and the regulation of trade?
The words "absolutely free" are infinite in their application, and they seem to me to take away from the
Commonwealth the power to restrict and regulate trade within the confines of the Commonwealth.

What this makes clear is that even the term “FREE” (section 92 of the Constitution, where in fact
there are taxes, in addition of GST being levied.
What must be clear is that the word “FREE” must be interpreted as to the intentions of the Framers
of the Constitution as stated in the Hansard records of the Constitution Convention Debates and not
be used in modern times of the meaning of the word “FREE”.
Therefore the meaning of Section 92 having to be construed as to the intentions of the Framers of
the Constitution then likewise the meaning of subsection 51(xx) of the Constitution likewise shall
be construed in the same manner. Meanings to certain constitutional provisions are often discovered
in debates about other matters, such as debates regarding subsection 51(i) which also then relate to
Section 92, albeit, care must be taken that at the time of the framing of the Constitution they
referred to “clauses” as it was a Bill and it does not become a “section” until it receives Royal
Assent. Also, a clause by various amendments to the Constitution convention bill was going
through different numbering stages and generally the now Section 51 was referred to as Clause 52
and the current Section 52 then referred to as Clause 53.
Mr. DEAKIN.-
In this Constitution, although much is written much remains unwritten,
This underlines that the framers of the Constitution pursued to keep the written text to an absolute
minimum to avoid lawyers to play havoc with the Constitution and judges had to interpret the
constitutional meanings by researching the Hansard records of the Constitution Convention Debates
to discover the true intents of the Framers of the Constitution.
As shown below the danger to quote what a judge may have stated AFTER federation is obvious
where the very judge refused then to allow the usage of the Hansard records of the Constitution
Convention Debates as to show what the judge actually had stated when framing the Constitution.
In my view Griffith and Higgins are examples that what they stated after federation may not have
been as what they stated while framing the Constitution. As such, I view that where there is a clash
of expressions or a difference then what the person stated at the time of framing the Constitution
should be regarded as having more validity then being bias as a judge after federation.
Where laws exist at the time of the adoption of this Constitution they will be preserved; but do not let us
give power to the states to make new laws which will create new difficulties and complications.
And
Mr. MCMILLAN.-
I do not want to insert in this Constitution a provision which by implication will show a trend of thought of a
certain character, to which I need not further refer. I do not want it to be presumed for one moment that we
desire to give to the Federal Parliament the right to interfere in trade disputes and in the ordinary
business and commerce of the country. The less the Government has to do with these things the better, and the
more clearly it is understood that the Government is not to interfere excepting for the preservation of law and
order the sooner these disputes will be likely to end.
This statement underlines that the wording “in the ordinary business and commerce of the
country.” must be deemed to include corporations as unlikely would the meaning of “in the
ordinary business and commerce of the country.” have been intended to exclude corporations.
It ought to be considered also that “industrial” action is not particularly intended to refer to a single
employee working for an employer but that more then one employee works for that employer.
Hence, it would be more likely to relate to a business that is incorporated then being a business of
one employee only existing.
Sir JOHN DOWNER.-I cannot foresee. I cannot pretend to have the gift of prescience which would enable me
to know how ultimately a coach and four may be driven through this Constitution. But I say let those who want
limitations propose their insertion in the Bill. I would prefer to leave the main enactment in this clause exactly as
it stands. It may be that the words of Sir Samuel Griffith represent all he can think of. Perhaps they may
represent all that can be wanted at any time; but it is just possible that something may be omitted from them
something which might derogate from this freedom of trade which we intend to have throughout the
Commonwealth, Then, I ask honorable members to consider this: Although the clause says that trade and
intercourse throughout the Commonwealth shall be absolutely free, you have to look through this
Constitution at the other provisions, which show clearly what is the intention. This is a broad central
declaration; the rest you gather from a perusal of other provisions of the Bill.
Again;
Although the clause says that trade and intercourse throughout the Commonwealth shall be absolutely
free, you have to look through this Constitution at the other provisions, which show clearly what is the
intention. This is a broad central declaration; the rest you gather from a perusal of other provisions of the
Bill.
As such even “trade and commerce” remains conditional upon other parts of the constitution.
As a self-educated grand master constitutionalist, I have therefore a good understanding about
certain constitutional matters and must admit that you displayed a good sense of understanding what
federation was about. The quotation above, at least in my view, would have enhanced your
argument, and indeed many other simular statements can be found in the Hansard records of the
Constitution Convention Debates.
The joint judgment referred to;
The question was whether it also was a law with respect to corporations of the kind described in s 51(xx).
Griffith CJ, who was in the majority, said[12]:
"It is common ground that [the relevant sections of the Australian Industries Preservation Act], as framed,
extend to matters relating to domestic trade within a State, and the question is whether the power to make laws
with respect to 'foreign corporations, and trading or financial corporations formed within the limits of the
Commonwealth' extends to the governance and control of such corporations when lawfully engaged in domestic
trade within the State. If it does, no limit can be assigned to the exercise of the power. The Commonwealth
Parliament can make any laws it thinks fit with regard to the operation of the corporation, for example, may
prescribe what officers and servants it shall employ, what shall be the hours and conditions of labour, what
remuneration shall be paid to them, and may thus, in the case of such corporations, exercise complete control of
the domestic trade carried on by them."
However it omitted to use this clarification;

Hansard 6-4-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian
Convention) (Chapter 33 of the CD)
Sir SAMUEL GRIFFITH: I confess I feel very great doubt whether the provision should or should not
be put in here. I do not think the hon. member, Mr. Kingston, has removed the difficulty that I felt as to its
being an interference with property and civil rights. Does the hon. member mean that a court of
conciliation might direct that the wages of workmen should be raised?
Mr. KINGSTON: That is a question of detail!
Sir SAMUEL GRIFFITH: It is a question of principle. Does the hon. member mean matters of principle
like that, because that might entirely depreciate the value of property in a state, or drive an industry out of
a state? From that point of view, my vote will be determined in the matter. I think, much as I desire to get
this power for the federal parliament, that we ought to hold fast by the principle that we are not going to
interfere with the rights of property in the states.
Again, a shame that none of the judges took any consideration as to the issue that employment of a
worker entered into was on the basis of a State contract within the “civil rights” of a person within
State laws where as “corporations” powers was dealing with registration of corporations legislative
powers provided to the Commonwealth of Australia and nothing to do with “civil rights” contracts.
Indeed, as the joint reasons pointed out;
Such little debate about the corporations power as there was at the 1891 Convention focused upon whether that
power should be extended, like the banking power, to the registration or incorporation of companies. Sir Samuel
Griffith's response[141] was:
"What is important ... is that there should be a uniform law for the recognition of corporations. Some
states might require an elaborate form, the payment of heavy fees, and certain guarantees as to the
stability of members, while another state might not think it worth its while to take so much trouble,
having regard to its different circumstances. I think the states may be trusted to stipulate how they will
incorporate companies, although we ought to have some general law in regard to their recognition."
As this reveals, the concern then being addressed was very narrow.
Again;
is that there should be a uniform law for the recognition of corporations.
With my extensive research in the Constitution Convention Debates this was all along my
perception, that it was only dealing with registration (for the recognition of corporations) upon a
uniform basis as to avoid different State conditions but nothing to do with attempting to interfere
with the civil rights of a person to enter in a work contract with an employer. Also, the drafting
committee would often deal with matters decided in smaller committees and as such not subject to
major debates on record.
HANSARD 27-1-1898 Constitution Convention Debates (Official Record of the Debates of the National
Mr. SYMON: I think that every dispute is local to the State in which it originates.
Mr. BARTON: If they arise in a particular State they must be determined by the laws of the place where
the contract was made.
Mr. SYMON: No doubt. There is another point I wish the hon. member to consider. You are not going to
interfere with the laws of the States dealing with contracts. If the Federal Parliament deals with disputes it will be
hampered by the varying laws relating to master and servant which may exist in the different colonies. If an
industrial dispute in several colonies were treated as one it could not be dealt with as an ordinary dispute, but the
laws of each separate State would have to be taken into consideration. Now that would be, I think-so it strikes my
mind at present-a difficulty hard to be overcome. At any rate, what I am dealing with is rather the general
proposition that is put in this amendment, not the language of it, but the general proposition, and if you are to
give the Federal Parliament power to deal, as my honorable friend puts it, with industrial disputes -I will leave
out the subsequent verbiage-I for one cannot see where the limit of its operation will come in. You give it a
weapon which might be used according to the dominant majority in the Federal Parliament for the moment in a
way we would not like. You are intensifying the possibilities of bitterness-that is to say, if they avail themselves
of this power-without seeing the benefit that is likely to arise. I desire to emphasise the [start page 790]
observation made by Mr. Deakin. It would be impossible to say at what time
the overflow into the adjoining State begins and ends. If the Federal Parliament is to decide-
And
Sir EDWARD BRADDON (Tasmania).-
This amendment does not hand over to the federal power the entire dealing with industrial disputes over
the whole of the Commonwealth, but only over so much of the Commonwealth as may be affected by those
disputes. It therefore imposes upon the various states the necessity for having courts of conciliation and
arbitration to deal with the matters affecting their states only. That seems to me to be an admission of the
principles principle which I think must be admitted in the present circumstances-that anything whatever in the
nature of government or administration which can be better dealt with by a state than by the Commonwealth shall
be left to the state. I claim Mr. Deakin's emphatic indorsement of that principle, and I claim his vote, because his
vote if he goes with me will affirm the principle. It surely must be better for the employees that their disputes
should be settled by courts which know all the circumstances, which understand the condition of things best, than
that they should be settled by possibly a distant tribunal which is ignorant of the environment and particular
conditions affecting any industry in any one of the states. We have heard to-day something about the fixing of
a rate of wage by the federal authority. That would be an absolute impossibility in the different states.
And
We have heard to-day something about the fixing of a rate of wage by the federal authority. That would be
an absolute impossibility in the different states.
And
Section 109 of the Constitution does provide that where State law is inconsistent with
Commonwealth law then Commonwealth law shall provide, however it does not State that Colonial
laws likewise are subjected to the same. Therefore State laws that are enacted AFTER federation
are subject to subsection 109 but Colonial laws enacted before Federation remain to be valid in law
but cannot be amended once the Commonwealth has commenced to legislate upon this matter.
There are however serious matters to be considered. Where the High Court of Australia made time
and again certain decisions, which based upon those decisions State legislated and now the High
Court of Australia suddenly in their, so to say, CRYSTAL BALL saw powers it never saw before,
against the body of language used by the Framers of the Constitution to indicate, such as in regard
of bounties, that it could continue to do so in regard not just of individuals but also regarding
corporations where it remained “internal” matters then one would hold that either the Framers of the
Constitution themselves didn’t known what they were talking about or it may be held that the
Judges of the High Court of Australia don’t know what they are talking about with their sudden, so
to say, CRYSTAL BALL revelations, then how does this eventuate with the provisions of the
Constitution?
The first thing is to consider is, that as set out below Section 109 does not invalidate Colonial laws.
Therefore within section 107 they are and remain preserved. Section 109 relates to State legislation,
which is after federation, whereas Section 107 relates to both Colonial and state legislation. We
therefore have to consider that if a State upon the decisions of the High Court of Australia legislated
after federation as to amend or repeal such colonial laws to have it party or wholly substituted with
State legislation where the state genuinely believed that upon the High Court of Australia decisions
and/or so the VETO power used by the electors themselves within section 128 of the Constitution
then where the High Court of Australia now reverse its past decisions the States nevertheless are
now robbed of their colonial laws because they were amended since federation or that the High
Court of Australia will regard it that as the amendment/repeals were subsequently to their , so to
say, ill conceived past decisions then the colonial legislation as existing at the time of federation for
so far as repealed/ amended must be regarded not to have been so. To do otherwise would rob the
States, who may have legislated upon the decisions/finding of the High Court of Australia of their
constitutional powers/rights because of the, so to say, ill conceived decisions of the past by the High
Court of Australia. Surely, the Framers of the Constitution never intended to do so? Indeed, not to
allow the re-instatement of those colonial laws would result that no one could avail himself to the
credibility of the High Court of Australia as to its competence to make appropriate judicial
decisions without perhaps contemporary political motives as to misguide/misdirect State’s as to
their constitutional powers to get them to act and then later use this action to hold their colonial
legislation (because of their State legislative amendments) no longer is valid because of Section 109
where as had the States not gone along to accept the High Court of Australia’s decision it may never
have amended/repealed its colonial laws. Indeed, one then can ask, for example, where the State of
Victoria is a listed COMPANY on the New York Stock exchange, if then the State, having
purportedly amended its own constitution with the Victorian Constitution Act 1975 no longer then
can rely upon its own 1975 constitution!
Also, if this therefore can unfettered give the Commonwealth of Australia to basically decide every
aspect of corporation life of the State Governments and so can nullify the existence of the State
government. After all, it cannot be argued that somehow corporations powers found, so to say, in
the CRYSTAL BALL does apply to some but not all. Indeed, the Commonwealth legislative
powers is bound to be for the “whole of the commonwealth” and cannot therefore exclude parts of
States, being it State government or otherwise.
Also, where a State has (if it is validly done so that is) referred legislative power of a State then as
the Framers of the Constitution made clear the commonwealth of Australia is to make a special levy
against that State for the cost of this legislative powers to be acted upon. After all, why should
taxpayers be burdened with the financial cost of running the matters within the referred legislative
powers of another State while having to pay for their own as well. The Framers of the Constitution
made it clear that the Commonwealth of Australia would then have to provide for a special levy to
have the State that referred legislative powers regarding a certain “matter” pay for this
administration.
There is another issue that should not be overlooked.

We now have ample of companies that are now changing how they conduct their business affairs
considering the High Court of Australia, so to say, CRYSTAL BALL found constitutional powers
in regard of subsection 51(xx) as it did about the Australia Act 1986. Now, many companies since
had altered their arrangements with workers, even sacked them, and if now by hindsight the High
Court of Australia were to re-consider its position and found that because the, so to say, CRYSTAL
BALL was clouded and their tea leaves in their cups were not showing the kind of reading that at
the time they had perceived to do in regard of what constitutional powers were about, then where
the High Court of Australia then reverses its 14 November 2006 decision regarding the Amendment
Act (WorkChoices) and find that subsection 51(xx) is restricted to “registration” of companies
and their conduct as a corporation but not referring to the industrial issues governing how it
employs workers there could be a flood of legal actions by workers who then will argue that they
were unconstitutionally and illegally robbed of their income. Many companies who may have acted
upon the validity of the High Court of Australia’s decision of 14 November 2006 then could be
send broke as the laws they thought no longer applied, and hance reduced wages as permitted by the
new purported legislation, turn out to be still legally applicable.
Could it be held that therefore during the time the High Court of Australia had its ill-conceived
judgment standing that constitutionally the State legislation remained on foot and so remains legally
enforceable. If not, could it mean that the High Court of Australia upon ill-conceived decisions can
temporary suspend the application of constitutional provisions and later re-instate it? To allow for
this would make a mockery of the Constitution as no one could avail himself to what is
constitutionally applicable, as it would depend upon the political appointment of judges how they
then decide from time to time their cases.

The legal implications are enormous with ill-conceived High Court of Australia decisions and for
this every Australian (naturalised or not) who have employment in the Commonwealth of Australia
is entitled to hold that the High Court of Australia did at the very least a very shoddy job in handing
down its 14 November 2006 decision regarding the purported WorkChoices legislation without
having first, as I did, extensively researched all related matters governing the matters before the
Court.
A simple manner to research a particular issue is that a person who has access to the electronic
versions of the Hansard records of the Constitution Convention Debates has it on a computer and
does the following;
The computer operator go to the program “search”/”find” and type in the word required to be
found in the Hansard records of the Constitution Convention Debates, being it “preserved”,
“company”, “retrospective”, “British subject”, “citizenship”, etc, etc.
Now, technology happens to be that then the computer will in a few minutes list all days on
which the Framers of the Constitution during the Constitution convention Debates used the
particular word one had in the search.
Then one open up a particular page and do the same “search”/”find” again and there it comes
up time and again.
In case judges of the High Court of Australia have a problem to access the internet to get to the
Hansard records of the Constitution Convention Debates, it is in fact listed in Chapter 33 of my
books on CD/DVD so the Readers can check out the entire debates, and so if I did not take out of
context the quotation I relied upon.
As I did provide on the day of publication the High Court of Australia with 4 copies and
subsequently about 4 weeks later provided another 4 copies then clearly the Court had every
opportunity to check out the Hansard records of the Constitution Convention Debates.
Considering that Mr Peter Hanks QC for the Commonwealth of Australia stated;
The researches of counsel have been unable to find provisions using

similar language (“not less that” or “at least” a number of days) where
the language is as clear and specific as found in ss156(1) and 157.
Yet despite this thousands upon thousands of usage around the world is found by a simple search on
the internet, as I then already established, it appeared to me that the researches employed by lawyers
may not master technology and so perhaps neither the internet and as such providing it in Chapter
33 of my books I avoid researches that may be employed by the Court, so to say, having to pull
their hair out because of their inability to use the internet, and have it nicely dished up for them.
Whatever might or might not be applicable, still judges are appointed specifically to deal with
constitutional issues and I view there is no excuse therefore for any judge not to have bothered
(through his researches or otherwise) to check out how the Framers of the Constitution used the
word “company”, “preservation”, “retrospective”, “British subject”, “factory law”, “citizen”,
“citizenship”, and for that also “empire”, “kingdom”, “republic”, “independence”, “subject of
the British crown”, “constitution”, etc, etc.
The Hon. J.H. CARRUTHERS: Look at sub-clause 25, which says:
The service and execution throughout the commonwealth of the civil and criminal process, and
judgments of the courts of the states.
The Hon. Sir J.W. DOWNER: But it must be in respect of a matter over which the court has jurisdiction.

Mr. SYMON: Suppose you change the domicile!
The Hon. Sir J.W. DOWNER: That will not operate to give jurisdiction. I think that when we have given the
most sacred of all relations-the, relation of marriage-over to the commonwealth, and very properly, it follows, as
a matter of course, that we must do this. Parental rights-that is all we propose to give to the commonwealth.
The commonwealth parliament can make a definition and pass a uniform law.
Mr. SYMON: That is incident to the marriage law!
The Hon. Sir J.W. DOWNER: It comes from the marriage law, and ought to flow as a corollary. It is a
corollary as far as marriage is concerned.
[start page 1085]
The Hon. R.E. O'CONNOR: It would not necessarily follow the law of husband and wife!
The Hon. Sir J.W. DOWNER: We are only talking about parental rights; that is the right of the parent
over the child!
The Hon. J.H. CARRUTHERS: If the hon. and learned member is willing to hand over the rights, why
not the obligations?
The Hon. Sir J.W. DOWNER: If the hon. member would like them added I have no objection; but if the hon.
gentleman wants to exclude them, I cannot see that any difficulty need arise. So far as I know, the laws of all the
colonies are exactly the same in respect to the matters mentioned here, and there is very little probability of their
being any different, so far as parental rights and the custody and guardianship of infants are concerned. We want
to prevent the possibility of any difference, that is all, and to give the federal parliament power to legislate
on the subject if they please. I can see difficulties that might arise in the enforcement of state laws through
the child or infant being taken away from the custody of its parent or guardian, and being out of the
jurisdiction of the court of the state in which the parent or guardian resides, and I think it is necessary to
have one uniform law on this matter as well as in regard to marriage and divorce.
The Hon. J.H. GORDON (South Australia)[3.59]: I think we are quarrelling about terms and not about
substance. I believe that the hon. member, Mr. Carruthers, agrees with almost everyone of us that as
regards parental rights and the custody and, guardianship of children so far as divorce is concerned,
power should be given to the commonwealth; but this clause goes much further and includes the whole
region of, parental rights and the custody and guardianship of children.
The Hon. E. BARTON: Put in the words "and in relation thereto" before "parental rights "!
The Hon. J.H. GORDON: That will cover the whole ground. All our acts relating to the custody and
guardianship of children have relation to parental rights.
Mr. SYMON: Suppose a child is deserted?
The Hon. J.H. GORDON: That suspends the parental custody; but the parental liability remains. I think
that the amendment suggested by the hon. and learned member, Mr. Barton, covers the whole ground.
The Hon. E. BARTON: I move:
That the figures "24" be omitted with a view to the insertion of the words "and in relation thereto."
This will confine the operation of the subclause to the rights and obligations arising out of divorce suits.
The other matters to which attention has been directed will be considered by the Drafting Committee.
Time and again I notice that the High Court of Australia refers to International law and also British
decisions but there is a gross defect in them doing so. As the Framers of the Constitution made
clear, time and again, they did not desire to use any particular Constitution but desired to design
their own and pick what they considered the best of all Constitution and mix it with a blend of
Australian flavour. This is in particularly highlighted in the usage of Subsection 51(xxii) referring
to “parental rights” no other constitution had used. Likewise its intentions with subsection 51(v)
“and not otherwise” was to include whatever would eventuate in future with modern technology in
that field, and they made clear they didn’t want to follow the USA system of having
telecommunication in private hands! Hence the sale of Telstra is and remains unconstitutional and
likewise the operations of private telecommunication companies in the Commonwealth of Australia.
The High Court of Australia cannot have it both ways, to disregard constitutional provisions where
it is against the conduct of the Federal Government but enforce it where it is in favour of the
Federal Government.
I might not be a lawyer but no one could argue that throughout my books that are published I have
not shown a display of law enforcement being it what is constitutionally appropriate. And, yet I find
that the many of the decisions of the High Court of Australia are, so to say, stinking like rotten eggs
rather then having the flavour of JUSTICE. Whatever, so to say, the Court is cooking up I think
they need to have an health inspector checking their facilities as it is heavily contaminated whatever
seems to come out of their kitchen that spoils the appetite of those who are to consume it, except for
those who lack the taste for JUSTICE.
One can go to a kitchen and have a meal prepared in the utmost crisp environment and have the
meal decorated in the most attractive manner yet when it is served at the table the person presenting
it could stink a mile against the wind, so to say, and no matter what effort was done to make up the
meal it all might in the end been a waste of time and effort. Therefore, it is not necessary that
researched of the Court might not have done their utmost pest to assist a relevant judge, but it might
be that the bias of a judge may have resulted that presenting the judgment excluded many thing that
the researches may have prepared but were never in the end included. As such the judge may have
contaminated what was prepared to be presented. Sure, ultimately this is the right of a judge to
decide what is in and what is out but surely then it would be absurd for a person like Mr. Peter
Hanks QC to blame his researches for something he himself could have established within a few
minutes to be correct or not. all he had to do was to type in a search “shall be not less than” and he
would have found thousands upon thousands of references.
If I as an unrepresented party can manage to get legal matters sorted out in that regard then surely it
is an absurdity to accept that a Queens Counsellor can excuse himself by blaming the researches,
yet, when this came before the High Court of Australia it was argued by Mr Peter Hanks QC that it
was not relevant.
To me it is very relevant if a lawyer deceives the Court as he did in many other ways.
For example, checking the transcript of the hearing, it is noted that Mr Peter Hanks QC in his
argument in point 22 and 22.1 of the OUTLINE stated the following;
QUOTE
22 In Foster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 445, Gibbs J referred to the general rule
that “not less than” so many days refers to clear days – “unless the context or the statutory intention
reveals a contrary intention”.
END QUOTE
His quotation is again false and misleading!
Mr Peter Hanks QC quoted of the judgment the following;

QUOTE
“unless the context or the statutory intention reveals a contrary intention”
END QUOTE
This ought to be;
QUOTE
“unless the context or the subject matter reveals a contrary intention”
END QUOTE
Clearly, that is a gross deception. In legal terms there can be a significant difference in a case for
the Court to deal with a “statutory intention” versus “subject matter”.

Mr Peter Hanks QC stated to the Court (7 November 2001);
The researches of counsel have been unable to find provisions using simular language (“not less that” or “at
least” a number of days) where the language is as clear and specific as found in ss156(1) and 157.
Thousands upon thousands of Internet references can be found upon a search “shall not be less
than” or “shall not be less that”. As such this statement by Mr. Peter Hanks QC for the Australian
Electoral Commission was a fraudulent statement. Likewise other statements were found by me to
be deceptive and/or misleading.
We also have the fact that Counsel Mr Peter Hanks QC argued the authority of the
ASSOCIATED DOMINIONS ASSURANCE SOCIETY PTY. LTD. v. BALMFORD (1950) 81 CLR 161
What counsel did however was to make a false and misleading presentation of what the case really
was on about.
As the authority stated:
The notice actually served did not "specify" such a period: it "specified" a period which
was too short by one day, and the Acts Interpretation Act does not affect this position.
Mr Peter Hank QC didn’t argue that the authority wasn’t relevant, to the contrary he argued its
relevance only by misrepresenting how it applied and what the authority really was on about. As
such, it had nothing to do with “within” as Mr Peter Hanks QC argued as clearly the usage
“within” was in a different context and not at all as Mr Peter Hanks QC sought to imply and did
imply. It ought to be considered a serious matter that a barrister employs these kind of tactics,
indeed deceptive tactics, but it seems the Australian Electoral Commissioner does not seem to
worry about the means as long as it achieves his end results.
Because Aboriginal affairs gives me an opportunity to set out better matters regarding the usage of
the various legislative powers of the Commonwealth of Australia I will use this to some extend and
then bring it back to industrial relations, and as such the Reader must remain spell bound, so to say,
to follow my reasoning.
Hansard, 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian
Sir SAMUEL GRIFFITH:
One of them is to deal with the affairs of people of any race with respect to whom it is deemed necessary to make
special laws not applicable to the general community; but so that this power shall not extend to authorise
legislation with respect to the aboriginal native race in Australia and the Maori race in New Zealand.
This related to Subsection 51(xxvi) as to race legislation.

The amendment in the con-job referendum in 1967 to delete the reference to Aboriginals in
subsection 51(xxvi) with its subsequent legislation had the effect;
Hansard, 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian
Mr. BARTON.-But if he is under any disability under any regulation of the [start page 1787]
Commonwealth he would cease to be a citizen, however slight that disability might be. I doubt whether the
honorable member intends that. There is power by law to regulate the people of any race requiring special
laws. There may be some purely regulative law passed, not imposing any special restriction on any person of that
kind who may be a subject of the Queen. That regulation, if it were of the mildest character, under this
definition, would deprive him of his rights.
The Racial Discrimination Act 1975 by this has the effect that all persons in the Commonwealth of
Australia by this lost their citizenship/franchise!
See also Chapter 021H Aboriginal constitutional issue.
What we have therefore is that, at least to me, it appears electors are conned in voting in a
referendum unaware to the true constitutional construction of the application of certain
constitutional provisions, and if anything the 14 November 2006 judgement regarding the
WorkChoices legislation underlines that even the judges themselves over more then one hundred
years did not appear to understand/comprehend how subsection 51(xx) really applied. Yet, despite
this admission the judges nevertheless do not even bother to check out what is recorded in the
Hansard records of the Constitution Convention Debates as to the usage of the terms so important to
the case being it “company” “factory law” State sovereign rights” etc. At the very least one would
have expected that the judges concerned claiming that it was done for so long wrong should be
extra careful for themselves not to compound problems by ignoring to first elicit from the Hansard
records of the Constitution Convention Debates what really was intended with the term corporations
and how it was considered.
Numerous references were made by the Framers of the Constitution that the internal workings of a
State was to remain with the State and as such it is evidently clear that the corporations powers
within subsection 51(xx) was never to be more then the general registration and conduct of
corporations as a corporation in management style and not at all involve the nots and bolts, so to
say, of how shop floor workers earn their crust. Indeed, the fact that the Framers of the Constitution
stated that the States retained their factory laws and that disputes were to be considered upon State
contracts, etc., itself underlines that subsection 51(xx) was limited to the organization of companies
and had nothing to do with how workers were employed. Indeed, the fact that the Commonwealth
of Australia had no constitutional powers to deal with religious aspects in itself underlines that State
laws were the only once to prevail. If in time Australia turn into some other religion as its general
usage and Christian public holidays become unsuitable then it would be beyond the powers of the
Federal government to interfere with religious public holidays where as the States still can legislate
where it comes to religion but on the other hand by the Commonwealth of Australia having invoked
legislative powers cannot do so because Section 51 does not allow the States to legislate upon
matters once the Commonwealth of Australia has commenced to do so. It means, that neither the
States or the Commonwealth of Australia can legislate any further in regard of religious holidays,
an total absurdity. We then have a vacuum of legislative powers!
Neither can it be argued that the Commonwealth of Australia somehow can legislate as to religion
under its subsection 51(xx) powers as to allow this vandalise the intentions of the Framers of the
Constitution and the constitutional concept embodied in this “new Magna Carta”.
What will however eventuate is, that where it comes to workers who do not work for a corporation
they can benefit of State legislative provisions where as workers performing the same job but their
employer happens to become a corporation then they have a different level of standards and we will
have for this two classes of employment. Any employer could upon his wimps destroy the security
of a worker by switching to another system and this would workers in a precious position that their
contracts, such as purchasing a residence, is jeopardized.
Such industrial vandalism caused by the High Court of Australia decision cannot be allowed to
stand. It is no more then providing for corporate greed and not at all considering the sovereign
rights of the States to manage their own internal affairs as they desire. Irony is that in this case I
cannot specifically blame the current Federal Government for its ill conceived WorkChoices
legislation as I view they are entitled to legislate upon what they deem constitutionally permissible
being it that I hold each and every member of parliament to be held accountable as a representative
of the constituency for failing to appropriately care for their constitutional rights.
As I have indicated in the past published books, the constitutional set up in the Commonwealth of
Australia is totally different then that which applies in the United Kingdom. A clear example is that
the so called “Henry the VIII powers” to amend legislation by the government of the Day does not
exist in the Commonwealth of Australia.
Also, while a Minister of State in the UK has unlimited powers within his portfolio, to the contrary
in the Commonwealth of Australia a Minister is bound within what is “for the peace, order, and
good government” and so are the powers of the Federal Parliament limited to this. The British
parliament did not have a constitution that dictated the usage of Ministerial powers and indeed
parliamentarian powers where as the Commonwealth of Australia can only operate within “the
peace, order, and good government” and also that it must follow the dictated regime that the
parliament legislate and the Federal government cannot enforce any self dreamed up amendments
as like the “Henry the VIII powers” as it is prohibited in the constitutional structure of the
Commonwealth of Australia. Hence the government ‘exclusion of islands” of Migration territory
was unconstitutional regardless if the Federal parliament later legislated for this to be part of
legislation and the Federal Parliament in fact unconstitutionally provided for the exclusion of any
parts of the Commonwealth of Australia for migration purposes is and remain unconstitutional and
as such also any action taken against refugees on the basis of the purported exclusion.
It is the High Court of Australia, as I view it, in its corrupted decision that is really to be blamed.
Time and again it has allowed the Commonwealth of Australia to infringe upon constitutional
prohibitions and limits disregarding totally what the Framers of the Constitution intended.
The Pacific Solution, the ADMINISTRATIVE DETENTION and numerous other decisions to me
reek, if not stink, to political manoeuvring by the Court to undermine the proper application of
constitutional powers and limitations. Now it appears we going to have a CARIBBEAN decision in
human trading between the Commonwealth of Australia and the USA. In my view so that if any
further refugees arrive from Papua New Guinea then they be transported to the USA as not to
embarrass the Indonesians. Just that I view this is not a power for the Commonwealth of Australia
to deal in human bodies trading, as while it may have constitutional powers to deal with
immigration, migration and “aliens” nothing can justify a “human trade”. It is akin to the ‘slave
trade’ only now using a different terminology. I doubt the High Court of Australia will bother to
address this issue, even if an application is made, as I only have to look about my section 75(v)
matters how it refused those time and again, disregarding obviously the constitutional issues and by
this allowing the slaughter of human beings to continue.
Mr. BARTON.-
Now, the preservation of every inch of the shores of Australia from immigration of the kind indicated,
except to a certain limited extent, is one of the most desirable powers to place in the Constitution
As the Constitution makes clear the Commonwealth of Australia can only legislate as to the “whole
of the Commonwealth” and not exclude any part of it, such as is done under the Migration Zone as
to purportedly exercise parts of Australia from the migration zone. Regretfully, we also have found
that the High Court of Australia justified the government of the day to invoke the so called “Henry
the VIII powers” to make amendments to legislation and then use it and have it enforced without
first having been passed through both Houses of Parliament and given Royal Assent. It would be
sheer impossible to quote in this document all relevant quotations from the Hansard records of the
Constitution Convention Debates as this would cause this document to run in several thousands of
pages, safe to say that Chapter 33 of the book on CD contains all records and the Reader can for
himself /herself check it out. Whatever the British Parliament may do and whatever the Privy
Council may have ruled in certain cases cannot be adapted at all times to the Commonwealth of
Australia as there is a total different constitutional set up. The Commonwealth of Australia is not
the overall governing body over the States, because many legislative powers of the States are not
existing in the Commonwealth of Australia.
There is no such thing as the Australian troops to enter a State to break a strike as to do
so would be unconstitutional.
Again
There is no such thing as the Australian troops to enter a State to break a strike as to do
so would be unconstitutional.
There is no such thing as a soldier standing behind a citizen and going to shoot a bullet through an
electors head merely for refusing to comply with Section 245 of the Commonwealth electoral Act
1918 refusing to vote, as I did, as it would be beyond constitutional powers to do so, and if any
evidence is needed why such obnoxious conduct could never be tolerated is in the fact that on 19
July 2006 I succeeded in the County Court of Victoria to prove that voting is not constitutionally
permitted to be compulsory. As the Framers of the Constitution made clear, any alleged breach of
Commonwealth law was to be dealt with by the Commonwealth by having the alleged offender
formally charged (accused) and placed before the relevant State Court and the person be given a
judicial decision as to the persons innocence or guilt.
I am not the least interested what Quick & Garran stated in regard of certain issues, as their own
motivations may have distorted what was in fact really applicable and I rather rely upon the
Hansard records of the Constitution Convention Debates as to the true intentions of the Framers of
the Constitution.
“Domestic violence” was not then meaning a dispute between husband and wife but was then
referring to a “civil unrest involving violence” where then the Governor of the State could issue a
proclamation for Australian troops to restore order. As such, it had to be qualified within the
meaning of the term “domestic violence” as it then was referred to. A peaceful protest in industrial
matters is not and cannot be regarded constituting “domestic violence”. It might be injurious to
others, in preventing others to get to work or otherwise being obstructed to perform their normal
daily routines but it is not to be considered “domestic violence” in the meaning of the Framers of
the Constitution.
It is not that somehow soldiers are marching into the homes to point guns upon innocent
children, because their mummy and daddy have an altercation. Sure, we have the Australian
Federal Police already bashing down peoples front doors and pointing weapons upon children and
others in raids within States, and so unconstitutionally, but this does not make it lawful.
It is, as I view it, because we have an utter corrupt High Court of Australia that refuses to consider
all matters that are relevant to interpretation of the Constitution that so much is being done
unconstitutionally.
I member has said-that it is not desired to raise up a great standing army for our defence from imaginary
enemies.
Well, we have the purported WAR AGAINST TERROR where we have imaginary enemies and
where innocent people are rounded up and denied their constitutional rights because where the High
Court of Australia (obviously then not using the Hansard records of the Constitution Convention
Debates) in 1943 purported that the Commonwealth can suspend “civil rights” in time of war then
all that is needed is to purport there is some kind of war against imaginary enemies.
"Naturally, the common people don't want war, but after all, it is the leaders of a country who determine
the policy, and it is always a simple matter to drag people along whether it is a democracy, or a facist
dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be
brought to the bidding of the leaders. This is easy. All you have to do is tell them they're being attacked,
and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in
every country."
Hermann Goering, Hitlers' Reich-Marshall, at the Nuremberg trials after WW2.
As the Framers of the Constitution made clear regarding the States;

Our own police are quite sufficient for the preservation of order within.
Any notion of ASIO and/or Federal Police (under whatever title) roaming around with staff of the
immigration Department to arrest people, like Vivian Alvarez Solon and many others is an
absolute lunacy. In every case the Australian Federal police removes a person from State coil
without having first obtained a order of a State Court (such as the Bakhtiyari children) then that is
no less kidnapping as it would if any other stranger would have done so.
With all due respect to His Honour CALLINAN J, I view about defence power, that subsection
51(v) does no more but give the Commonwealth of Australia legislative powers as to regulate
armed forces, not to run an army. Section 69 transferred “naval and military” forces from the
colonies to the Commonwealth of Australia and then as any other employer the Commonwealth of
Australia is entitled to make laws and regulations for its employees. Section 51(xxxv) in that regard
really would not play any part in the issue as the Commonwealth of Australia as the “employer” has
existing powers to determine the wages and conditions of those employs, as such also the
“superannuation” of its workers, and this was made very clear by the Framers of the Constitution
when they debates the transfer of personnel from the colonies to the Commonwealth of Australia
that each could have its own superannuation system and neither was compulsory upon the other.
If subsection (xx) was the all out powers as the High Court of Australia now purports it to be then it
basically states that the Framers of the Constitution were wrong in what they stated and what their
intentions were in regard of States having their own superannuation, as the Commonwealth have
this power only, alternatively it must concede that the Commonwealth of Australia has no
constitutional legislative powers to dictate superannuation to anyone not being in employment with
the Commonwealth of Australia at it remains to be an internal State affair.
As I have set out below also the various legislative powers the Commonwealth of Australia has, it
must be clear that if the Commonwealth of Australia implements a “general power” as it purports to
do in regard of subsection 51(xx) relating to industrial relations matters then it own position as an
employer is no longer safe and its own workforce is as much then bound by the same “general
legislative powers” used in subsection 51(xx) as is any other employee. This, also means that any
special provisions the Commonwealth of Australia may have provided to its own military staff in
regulations or laws may if in conflict with the “general legislative powers” use of legislation in the
WorkChoices provisions now have to go.
Neither can the Commonwealth of Australia apply any taxation exclusion for any of its own
employees, soldiers or not, as this would be in breach of constitutional provisions that taxation must
be for the “whole of the Commonwealth” and the fact that the Commonwealth of Australia “ as
Executive government employs people cannot give the Federal parliament any additional powers
implied or otherwise prohibited in the Constitution
Hence, I view the Commonwealth of Australia might just discover that they might have opened a
Pandora Box, or otherwise to say, a can of worms, they wish they had never done.
As I understand it the High Court of Australia (Unable to verify precisely the case as I am locked
out of accessing High Court of Australia files under the edu system seemingly as to prevent me to
expose more of the rot despite this goes contrary to the principle embedded in section 117 of the
Constitution) has handed down a judgment that staff of Australia Post can disregard State laws and
its delivery personal can drive their motor bikes or other vehicles upon footpaths, regardless of the
safety of citizens.
Constitutionally, the Commonwealth of Australia can make laws as to postal services, its
operations, but nothing in that legislative powers allows it to override State internal laws for the
good of the general community of a State where it does not interfere with the normal exercise of
commonwealth services. The fact that Australia post desires to have a person delivering mail on a
motor bike itself does not interfere with State laws if the person observes State laws. After all, the
commonwealth of Australia could not authorise unlicensed persons to drive a motor vehicle in a
State as it would be beyond its powers to do so. Likewise it could not override State traffic laws and
permit Australian Post workers to drive onto footpaths as the perils of pedestrians and others as it
has nothing to do with service of the commonwealth, as within the road Traffic provisions the
delivery service can be maintained. What it is about is that the Commonwealth desires to ignore
road rules for its own financial interest and not for any other purpose. Like how it has closed down
government book stores and now one doesn’t known where to get a copy of a Gazette and so neither
enable to ascertain what new laws are about. Publication, in my view, therefore does not occur as no
one can claim that hiding publications without appropriate facilities for a person to obtain
publications is not a publication at all. Watson v Lee is a clear example of this.
What we have therefore is that if within the State road rules commonwealth officers are not
hindered at all to perform the delivery service then it is in my total absurdity for the High court of
Australia to allow the commonwealth nevertheless ignore the State rights to govern its internal
structure merely because of profit issues.
It must also be kept in mind that Australia Post as was enacted at Federation no longer exist.
Constitutionally Section 114 denies the Commonwealth to raise any taxes upon commonwealth
properties. As former Telstra sites are flogged of to private purchasers without a change of
jurisdiction from Federal to State jurisdiction (consider the POINT NEPEAN dilemma) then
“technically” local councils cannot charge rates upon properties that were purchases from Telstra
where they constitutionally that is remain to be Commonwealth Territories. While the
commonwealth may have allowed change of titles from itself to the private purchaser, in real terms
did never occurred as the “sovereign” of the property for all purposes remains to be the
Commonwealth of Australia. This is a very highly technical question and has already been
extensively canvassed by me in previous published books and as such I am not going to occupy
further pages to state the case again, other then to say that where the Commonwealth of Australia
has flogged of most of the Post offices, then those employed are not in employment of Australian
Post but in employment of the owners of the post offices. Indeed, when I contact Australia Post of
mail not being delivered or having been delivered on wrong addresses I am constantly advised that I
must take it up with the private owners of the local post office as it is out of their hands. As such,
the mail delivery is done by people employed, or subcontracted by those owning the Post office but
under the umbrella of Australia Post. It would therefore be a gross abuse of power by the
Commonwealth of Australia to allow Australia Post under this cover having people driving their
bikes on footpaths to the peril of the pedestrians and being to terrorise other road users.
As like Australia Post offices and Telstra properties, as they are transferred to the Commonwealth
of Australia within Section 69 of the Constitution which does not have “until the Parliament
otherwise provides” then the flogging of out our crown jewels by the Commonwealth of Australia
is unconstitutional. The commonwealth of Australia can legislate to the manner Australia Post and
Telstra was to operate where it owned the properties, but no one could sensibly argue that
subsection 51(v) powers were handed to the Commonwealth of Australia merely nilly willy, as it
was specifically done to ensure that the Commonwealth would have all legislative powers to aid its
ownership of the combined postal and telecommunication services. I have no doubt that had the
Framers of the Constitution not provided for the postal and telecommunications to be handed over
to the federation subsection 51(v) would never have been included as it would have interfered with
the State internal processes. It therefore has resulted that any telecommunication powers other wise
possessed by the Commonwealth of Australia is a spend force where it sold, and so
unconstitutionally, Telstra and a large part of Australia Post.
Neither do I accept that the Commonwealth of Australia can have its own “future funds” being it
for future superannuation payments or otherwise, as it goes against the provisions of Section 94 of
the Constitution. The Commonwealth of Australia must hand over any monies it has not used
for Commonwealth purposes.

* Moment Gary, how then does it provide for superannuation of its workforce?
**#** Not a slush fund, I can assure you. In fact there was a news bulletin that the Department of
Taxation is unable to collect superannuations contributions employers have to pay in the hundreds
of millions of dollars and that some employers go broke without having paid a cent in the
superannuation funds, regardless what they deducted from their employees wages.
* Can that be right?
**#** Of course not and this may underline it is all up the creek, so to say. Again, I blame the High
Court of Australia for this as if it had all along stuck to the way the Framers of the Constitution
intended constitutional provisions to be applied we may never have ended in this constitutional
legal mess. Lets look at the superannuation issue regarding federal employees and considering that
superannuation payments, at least where constitutionally permissible, are to be part of the
Appropriation Bills. As such, if any employee is entitled to superannuation then the Commonwealth
of Australia must pay this monies into a employees nominated fund/account, by this the monies
have been spend for constitutional purposes and as such neither can be deemed to be some surplus.
Only the employee then can access that money subject to legislative provisions, which apply to
anyone else in the country. After all the Commonwealth of Australia as an employer cannot have
any greater legislative power then any other employer. While I dispute the Commonwealth of
Australia to have any “general legislative powers” to dictate any business to pay 9% superannuation
contribution or something like that, as it certainly does not fall under the provisions of subsection
512(xxiii) dealing with invalid pensions and old age pensions, if for purpose of argument we were
to ignore this for a moment then the Commonwealth of Australia cannot have different powers of
legislation as the “general legislative powers” overrule any employers rights. As such, what is good
for the Goose is good for the Gander, so to say. If a private employer if obligated to pay to the
Department of Taxation for collection for superannuation funds then the Commonwealth of
Australia would likewise be obligated to do so and cannot itself have a slush funds under the title of
being a future funds. As any moneys collected by the Department for Taxation cannot be spend but
by Appropriation Bill being passed by the Federal Parliament, and in fact taxation laws relating to
deductions are in real terms also Appropriation laws, then if the Department of Taxation were to
have the monies in “general revenue” it clearly is part of this and cannot be paid out to anyone but
by the parliament passing Appropriation lBills. It would obviously be absurd for employees having
to await for the Federal parliament to pass special legislation as an Appropriation Bill for the person
to be able to draw his own earned monies and essential are his, and for this also I view that the
Department of Taxation (Tax Department) has no business to deal with superannuation monies.
One of my sons is having extra monies from his salary paid into a superannuation funds, yet, for all
he knows the employer may never pay this money to a appropriate body and my son could find out
years later that the moneys were never paid and the employer, so to say, went broke having used up
his monies. Now, what kind of s system is this really, where the Commonwealth of Australia makes
all kinds of devious laws but does not appropriately supervise matters yet through the High Court of
Australia seeks to gain more and more powers.
As a child I used to have this “puppet on a string” and when now someone refers to the High
Court of Australia It reminds me always to this “puppet on a string” I had as a child.
Anyhow, getting back to the superannuation issue, the commonwealth of Australia, as any other
employer has the right to make regulations for its employees but it cannot invoke powers of the
Federal Parliament to provide for laws that override or otherwise undermines “general law” (for the
whole of the Commonwealth) application. The Commonwealth of Australia must by Section 94 of
the Constitution return any surplus to the States and cannot have any future funds.
What it can do however is to pay any due superannuation payment into the respective
superannuation accounts of the relevant employees and it no longer holds the purse string of the
superannuation entitlements and as such the money does not float around in some future funds and
neither, so to say, can be gambled away by some treasure who desires to make a gambling on the
stock exchange and as I understood it lost about 5 billion dollars.
* Excuse me for sounding ignorant, but could not the monies be put into Government bonds and so
make it better for the commonwealth of Australia to have monies available?
**#** That is something I have already dealt with in past published books. I see no problem with a
superfund, if so duly authorised by the account holders to invest monies into government bonds, but
that is a total different issue. All moneys in a future funds must be returned to the State without
delay unless they are paid into accounts by special Appropriation laws enacted, and monies that are
a residue of past years cannot be paid into a superannuation fund without Appropriation Bill passed
for this as they were not spend when they had to. To be honest there are numerous other
constitutional issues I could cover but the best thing Readers can do is to read the books that have
been published. I think we better now get back to the issue of law enforcement of subsection 51(vi).
The maintenance of Commonwealth law (subsection 51(vi) is provided for but not that of the
maintenance of State law! The subsection 51(v) therefore must be interpreted in its proper
perspective and not be perceived that soldiers can invade the streets in the States and have tanks
being commandeered upon trade unionist or for that matter upon the individuals as in fact the
Framers of the Constitution very much outlined what was to be intended with these powers and its
usage of it as some quotes below shows. Granted, for purpose of defence powers the Framer of the
Constitution held that then the military could commandeer trains or other form of transport as to be
able to move its soldiers and equipment but that is totally different then what the High Court of
Australia in its 1943 decision seems to make out of it.
QUOTE
809 It is sometimes forgotten that at federation the colonies maintained their own defence forces. Section 51(vi)
refers, in terms, to the naval and military defence of the Commonwealth "and of the several States", making clear
that defence is to be exclusively a Commonwealth activity. There is something else however that needs to be
noted about this provision. It is that, literally, that is textually exclusively, it appears to contemplate the use of
the military forces of the Commonwealth to execute and maintain the laws of the Commonwealth [1021] , at any
time and in any circumstances. Elsewhere I refer[1022] to statements by judges of this Court to the effect that
constitutional provisions should be construed with "all the generality which the words admit". The use of
military forces, the imposition in effect of martial law in a democracy, except perhaps in times of external threat
or civil insurrection, is anathema to democracy itself, and yet, if s 51(vi) is to be construed too generally and
textually or literally, and without reference to other provisions of the Constitution, including perhaps that all of
the powers are to be exercised to make laws for the good (democratic) government of the Commonwealth, that
result might conceivably follow.
810 Reliance was placed upon some remarks of Latham CJ in Pidoto v Victoria [1023] for a proposition that
because the defence power was not subject to any restriction imposed by s 51(xxxv), nor should the corporations
power be. Pidoto was decided in 1943 when Australia was still engaged in a war that menaced the whole nation.
In these circumstances it is easy to see how the regulation as it was then put of "man power" could be closely
aligned with the defence of the nation. It was also a major source of food and raw materials for our armed forces
and their allies. As has been said many times, the defence power waxes and wanes as the danger mounts and
fades away. The remarks of Latham CJ in Pidoto were singularly his and obviously greatly influenced by the
perils of the times. Decisions made in such circumstances not infrequently are products of them and cannot
withstand the scrutiny of peaceful posterity[1024] .
END QUOTE
QUOTE
[1021] Section 51(vi) provides:
"The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and
good government of the Commonwealth with respect to:
(vi) the naval and military defence of the Commonwealth and of the several
States, and the control of the forces to execute and maintain the laws of the
Commonwealth".
[1022] See Pt IV, Div 2 of these reasons.
[1023] (1943) 68 CLR 87 at 101.
[1024] Another example is Sickerdick v Ashton (1918) 25 CLR 506, decided during the First World War, in
relation to the vexed issue of wartime recruitment. There, legislation was held to be constitutional within the
defence power in its application to a pamphleteer who published some mildly passivist statements.
END QUOTE
The joint judgment stated
QUOTE
212 With that background in mind, it was to be expected that a new instrument of government such as the
Constitution would encompass these matters, and do so at several levels. One arm of the defence power
conferred by s 51(vi) is "the control of the forces to execute and maintain the laws of the Commonwealth"; on
the application of the Executive Government of a State, the Commonwealth should protect the State "against
domestic violence" (s 119) [270]. In their work [271], Quick and Garran discussed the concept of "domestic
violence" in s 119 with detailed reference to the decision of the Supreme Court of the United States in In re
Debs[272] which supported the intervention of the federal government in the Pullman Strike to break the strike
by force.
END QUOTE
QUOTE
[270] See Re Aird; Ex parte Alpert (2004) 220 CLR 308 at 327-328 [61].
[271] The Annotated Constitution of the Australian Commonwealth, (1901) at 964-965.
[272] 158 US 564 at 582 (1895).
END QUOTE
It never was intended that somehow the Commonwealth of Australia would have its own
Commonwealth police force arresting people on the street in a State if they were not complying
with Commonwealth law! It was relating to Commonwealth law strictly relating to the defence
force to occupy and use defence facilities and not as to use some purported Commonwealth law
against so called “terrorist” as to hold them in detention or otherwise rob them of their “civil
rights”. Any law enacted within the powers of subsection 51(vi) must therefore be a law that relates
to the defence force actual operations and not to civilians who are not engaged by the
Commonwealth of Australia as to determine their rights in some imaginary war.
Mr. REID.-If there was a war between two countries, and a cruiser from the one country was approaching the
other, you would know that it was not on a visit of brotherly love.
It must be clear that the Framers of the Constitution referred to the defence power as to be used
between two countries at war and the imaginary enemy within was not anticipated for this.
In my view, a amendment of the Constitution would be required to give the Commonwealth specific
legislative powers in regard of “civil rights” or better to state “the abolition of civil rights” in time
of any imaginary war to make it constitutionally valid. Then again, why bother about a referendum
and risk that this more then likely would fail if all you need to do, so to say, is to stack the High
Court of Australia with lawyers who might go along with whatever the Federal government desires
and then the High Court of Australia will manipulate its powers to purport some legislation to be
constitutionally valid despite it never was and any sensible consideration of the Hansard records of
the Constitution Convention Debates would bring this out that the legislation is unconstitutional.
Subsection 51(vi) in fact was referring to the enforcement of Commonwealth law regarding
“defence power” and so in event of war and not in peace time other then to enable the
Commonwealth of Australia to maintain military bases and other facilities within a State, and other
such conduct. the protection of the States was provided for so that upon a proclamation of a
governor of a State the Commonwealth forces could then assist in a “domestic violence” involving
violence beyond the control of local law enforcement, and no more. If therefore subsection 51(vi)
had not included the reference to the States then it would have prohibited the Commonwealth
defence forces to assist a governor of a state in such matters regardless if it was proclaimed.
Subsection 51(vi) therefore does no more but to give the Commonwealth of Australia “legislative
powers” to legislate how to use Commonwealth defence forces if within section 119 of the
Constitution requested to come to the aid of a State by a proclamation of the Governor of the State.
Without subsection 51(vi) referring to the States it could not legislate as to how Commonwealth
defence forces could operate within that State. I maintain therefore that the Adelaide Company of
Jehovah's Witnesses Incorporated -v- The Commonwealth [1943] HCA 12; (1943) 67 CLR 116
(14 June 1943) judgment. Was wrongly decided as it interfered with the constitutional guarantees
embedded in the Constitution.
If any of the judges had bothered to research the Hansard records of the Constitution Convention
Debates they also might just have discovered some of the following statements;
Mr. GILLIES: The people themselves have undertaken the duty of creating such a force as, in their judgment,
would be sufficient to meet any foe that might land on these shores. There is nothing in these resolutions that I
can see that would justify the statement that it is contemplated by any colony, or by any group of colonies,
or by any individual, to bring about a standing army of such a kind as that to which the hon. member
referred-a standing army that might be a menace to the liberties of the people.
Again;
There is nothing in these resolutions that I can see that would justify the statement that it is contemplated
by any colony, or by any group of colonies, or by any individual, to bring about a standing army of such a
kind as that to which the hon. member referred-a standing army that might be a menace to the liberties of
the people.
Again;
to meet any foe that might land on these shores
Mr. BARTON.-We do not propose to hand over contracts and civil rights to the Federation, and they
are intimately allied to this question.
Mr. BARTON.-We do not propose to hand over contracts and civil rights to the Federation, and they are
intimately allied to this question.
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 the lives, liberty, and property of
all the persons residing in the Commonwealth, independently of any law of any state. That is not intended,
And
Mr. BARTON.-Yes; and here we have a totally different position, because the actual right which a
person has as a British subject-the right of personal liberty and protection under the laws-is secured by
being a citizen of the states. It must be recollected that the ordinary rights of liberty and protection by the
laws are not among the subjects confided to the Commonwealth. The administration of [start page 1766]
the laws regarding property and personal liberty is still left with the states. We do not propose to interfere
with them in this Constitution. We leave that amongst the reserved powers of the states, and, therefore,
having done nothing to make insecure the rights of property and the rights of liberty which at present
exist in the states,
Mr. OCONNOR.-I do not think so. We are making a Constitution which is to endure, practically speaking, for
all time. We do not know when some wave of popular feeling may lead a majority in the Parliament of a
state to commit an injustice by passing a law that would deprive citizens of life, liberty, or property
without due process of law. If no state does anything of the kind there will be no harm in this provision, but it is
only right that this protection should be given to every citizen of the Commonwealth.
Mr. GLYNN.-I am now speaking of the English law. It has been somewhat modified in the Straits Settlements,
and in one or two other parts of the empire, I believe, by giving a right of action for tort in certain cases, but I do
not think that this extended right of action has ever been given in any of the colonies. Conditions justifying
actions for damages against the Crown, however, are almost as frequent as actions for breach of contract. In
Canada a man sued the Crown for damages received in connexion with a railway accident, but he was debarred
of remedy there, although he suffered serious injury, because of some defect in the railway laws not conceding
this right. The position has been laid down in regard to the Queen in the case I have already mentioned, that-
Where the land, or goods, or money, of a subject have found their way into the possession of the Crown, and the
purpose of the petition is to obtain restitution, or if restitution cannot be obtained, compensation in money; or
when a claim arises out of a contract, as for goods supplied to the Crown or to the public service-the Crown is
bound to refer a petition of right to the courts for decision, because it is provided by Magna Charta that
justice cannot be denied, sold, or delayed.
How then can the High Court of Australia argue that the Commonwealth can take goods of a
person? After all, as shown above Barton made clear that the Constitution gave no powers as to
liberty and property!
Sir JOHN DOWNER.-
I think we might, on the attempt to found this great Commonwealth, just advance one step, not beyond the
substance of the legislation, but beyond the form of the legislation, of the different colonies, and say that
there shall be embedded in the Constitution the righteous principle that the Ministers of the Crown and
their officials shall be liable for any arbitrary act or wrong they may do, in the same way as any private
person would be.
Mr. BARTON.-Yes; and here we have a totally different position, because the actual right which a person
has as a British subject-the right of personal liberty and protection under the laws-is secured by being a citizen of
the States. It must be recollected that the ordinary rights of liberty and protection by the laws are not
among the subjects confided to the Commonwealth.
(And in regard of citizenship;)
Mr. BARTON.-
I took occasion to indicate that in creating a federal citizenship, and in defining the qualifications of that
federal citizenship, we were not in any way interfering with our 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 of a Commonwealth, but we would still be, subjects of the Queen.
And;
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.-But suppose they go beyond their power?
Mr. GORDON.-It is still the expression of Parliament. Directly a Ministry seeks to enforce improperly any
law the citizen has his right.
And;
Mr. BARTON.-Our civil rights are not in the hands of any Government, but the rights of the Crown in
prosecuting criminals are.
And
Mr. GORDON.-
Once a law is passed anybody can say that it is being improperly administered, and it leaves open the
whole judicial power once the question of ultra vires is raised.
We have no enemies within, and the only thing we have to fear is the possibility of any assault on the
mother country by her enemies from without, unless indeed the creation of a standing army proves a
menace to the people of Australia by the existence of an armed force for unlawful purposes. This question
of the creation of a military force is one of the blots upon these resolutions. We want no military force within
New South Wales. All we want to do is to make every man who is either a native of the soil, or one of ourselves
by reason of his taking up his residence amongst us, prepare to resist possible invasion from without. Who are
our enemies? Who are our enemies but the enemies of England, and they, so long as we remain under the
Crown, will be dealt with by an outer barrier, an outer bulwark in the defence of Australia, in the shape of
the navy of Old England. But we have no enemies within, and there is no necessity to fasten the curse of a
standing army upon us. As was pointed out by the hon. member, Sir George Grey, yesterday, in his interesting
speech, we have no necessity to keep a large standing army at a large cost to the people of the country, [start page
185] when we have no enemies with whom they will have to fight. Our own police are quite sufficient for the
preservation of order within. In the event of invasion from without, so long as we remain under the Crown, our
enemies, being the enemies of England, will be dealt with before ever an attempt is made to invade these shores;
and when the day of invasion comes the people of this country will rise as one man to defend their hearths and
homes from any possible aggressor. I look upon the question of the creation of a military power within a territory
under the Crown as a menace to the people who are to continue as British subjects. We have been sent here by
our various parliaments to frame a constitution under the Crown-under the Crown, bear in mind. That is the idea
which has been put forward in every speech that has been made. I presume, then, that the members of the
Convention are prepared at once to give the go-by altogether to the idea of imperial federation. So long as we
remain in our present position as individual colonies, we are imperially federated, and we can be
imperially federated in no stronger manner than in connection with our relation to the mother country.
We are as much imperially federated as the people living in the cities of London, Liverpool, Manchester, or other
large centres of population. We are a portion of the British Crown, joined together by the most solemn ties
and obligations; and we have to bear the brunt of any misfortune which may fall upon us in connection
with any attack upon our shores by reason of our enemies being the common enemies of England. We have
already made certain provision, partially of a federal character, to assist the Imperial Government in the
protection of our shores from without; but let us set our faces as a young nation-if I may use the word "nation" in
advance-against standing armies; let us set our face once and for ever against the creation of anything like a
military despotism. We are met here under the Crown, and I must say that, as one possessing a slight tinge
of republican notions, as one who sees that the future of Australia is to be what was prophesied of it fifty
years ago, by poets who have written of what the future of Australia is to be-having a certain tinge of
republicanism in my nature, the result naturally of my being a descendant of an Englishman, I was
surprised to find a gentleman occupying a position under the Crown proposing what 100 years ago would
have been simply regarded as high treason. Why, the other day the hon. member, Mr. Munro, made a proposal
with regard to one phase of the question which made me ejaculate, "One strand of the painter has gone."
Again;
let us set our face once and for ever against the creation of anything like a military despotism.
And
Our own police are quite sufficient for the preservation of order within.
Clause 112-The Commonwealth shall protect every state against invasion, and, on the application of the
Executive Government of a state, against domestic violence.
Mr. GORDON (South Australia).-I beg to move-
That the word "invasion" (line 2) be struck out, and the word "attack" substituted.
Why should the protection of the Commonwealth be confined only to invasion? We are not likely ever to be
invaded, but we are exceedingly likely to be attacked.
Mr. BARTON.-Any attack is an invasion in the sense in which the word is used in this clause.
Mr. GORDON.-The gunning by a cruiser standing off a city is not an invasion, but it is an attack.
Mr. BARTON.-It is an attack which is part of an invasion; if the attack succeeds invasion follows.
Mr. GORDON.-I think "attack" is very much better. Of course, if the word "invasion" covers the ground, well
and good; but while "attack" covers "invasion," does "invasion" cover "attack"? Originally, the amendment I
intended to move used both the words "attack" and "invasion."
Mr. REID.-You can repel an invasion 100 miles from the coast.

Mr. GORDON.-But how does the honorable member know that an invasion is intended?
[start page 692]
Mr. REID.-If there was a war between two countries, and a cruiser from the one country was approaching
the other, you would know that it was not on a visit of brotherly love.
Mr. GORDON.-They may not intend to invade the chances are that they do not intend to invade, but to attack.
Mr. BARTON.-Do you think that the Commonwealth, if a hostile fleet appeared for the purpose of attacking,
and not invading, would keep the batteries silent and the Australian fleet at anchor?
Mr. GORDON.-Something may turn upon this. By this clause the Common-wealth is only bound to protect
every state against invasion. If the Commonwealth neglected its duty, and South Australia was invaded, South
Australia would have a claim against the Commonwealth. But, it appears to me, that it should have an equal
claim against the Commonwealth if it was simply attacked, and not invaded. However, if the leader of the
Convention thinks that "invasion" covers "attack," I am willing to leave the matter to the Drafting Committee,
but I have some doubt on the point.
Mr. BARTON (New South Wales).-I am perfectly satisfied that when the guns are booming there will be
no discussion about the meaning of the two words.
Mr. GORDON.-Ought the construction of this Act to be left until the guns are booming? I thought the
object was to prevent the guns booming at all.
Mr. HOLDER (South Australia).-I think there is something in the point raised by my honorable friend (Mr.
Gordon). We have previously used separately the terms "naval" and "military." Now, an attack would be naval,
while an invasion would be military.
The CHAIRMAN.-Does the honorable member (Mr. Gordon) press his amendment?
Mr. GORDON.-No. If the leader of the Convention relies on his booming guns I am content.
The amendment was withdrawn.
Mr. DEAKIN.-With regard to time of war there are Imperial regulations which direct the procedure to be
followed; but even then the money and forces required would be raised by the Parliament and expended through
the Minister of Defence. Whether in time of war or in time of peace no important step should be taken in
connexion with the naval or military forces of the Commonwealth except through the Minister of Defence.
Mr. BARTON.-As a member of the Executive Council?
Mr. DEAKIN.-The Minister of Defence advises the Governor -General through the Executive Council, or with
the knowledge of his colleagues. The Governor-General is to be in the position in which the Queen is in
regard to accepting advice. What is necessary is to make it clear that the claim several Governors have
advanced in these colonies, and which has been rejected in all the colonies except, perhaps, one, is not to be
recognised under the Commonwealth. The claim that has been made by some Governors amounts to this: That
they are endowed with some personal power and personal control of the military and naval forces independently
of their Executive Council, and independently of the Parliament of the country. I have been supplied by an ex-
Minister of Defence in this colony with a great quantity of correspondence, some of it of an exasperating and
exasperated character, with regard to this question in Victoria. We found the position intolerable until we settled
it that the ordinary constitutional rule should apply in connexion with naval and military departments as with
regard to others; and that, while the Governor is to remain as Her Majesty's representative in supreme control of
all functions of government, he will be required to act in this, as in other [start page 2252] matters, on the advice
of his Executive. In no case is he to be endowed with the personal power to act over the heads of Parliament and
the Ministry, by whom these forces are called into existence and by whose contributions they are maintained.
And
Dr. COCKBURN (South Australia).-The Bill provides that the command is vested in the "Governor-General,"
and not in the "Governor-General in Council." It has been said that the Federal Parliament will be able to
pass a military law which will alter this, but I say there can be no alteration in defiance of the
Constitution.
Mr. BARTON.-One improvement we want in this Constitution is the establishment of a Commonwealth

kindergarten.
Dr. COCKBURN.-There is no doubt we want a lot of common sense as well as a lot of lawyers.
And
Mr. BARTON.-As it is now, the, Governor cannot act without the advice of the Minister any more than the
Queen, can, even if not specified to, be "in Council."
Sir JOHN BRAY:
. I agree with the hon. member, Mr. Dibbs-and no one, hitherto, has been bold enough to say that he agrees with
anything that hon. I member has said-that it is not desired to raise up a great standing army for our defence
from imaginary enemies. We feel that it is necessary for each colony to do something to provide for defence
from common foes; and I think we may rely that a federal parliament will do the same, and no more. They will
have no ambition to act contrary to the wishes of the Australian people, and, as far as I know those wishes, they
are not that we should rear up anything like a large standing army. They are anxious that we should have
amongst us some force which could be relied upon in time of danger; they are willing to give their own
services to augment that force when the necessity arises. I hope, however, that no federal government or
parliament will ever raise any unnecessary military or naval forces in the colonies, because they know the people
are not prepared to support such a scheme.
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The High Court of Australia in Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
relies upon what the USA Supreme Court stated, just that the Framers of the Constitution made
clear they didn’t follow and didn’t want to follow the path of the USA! Meaning, that then to use
judgments dealing with a totally different body politics is in my view absurd and plain stupid unless
it has the like constitutional application as it has in the Commonwealth of Australia
Adelaide Company of Jehovah's Witnesses Incorporated -v- The Commonwealth [1943] HCA 12; (1943) 67 CLR 116
(14 June 1943) Latham C.J. 2.
In the first place, it is important to observe that s. 116 is an express prohibition of any law which falls within its
terms. The section deals with laws which in some manner relate to religion. The Constitution, however, contains
no provision which confers upon the Commonwealth Parliament any power to make laws with respect to the
subject of religion. Section 116 therefore cannot be regarded as prescribing the content of laws made with respect
to religion upon the basis that the Commonwealth Parliament has some power of legislating with respect to
religion. Section 116 is a general prohibition applying to all laws, under whatever power those laws may be
made. It is an overriding provision. It does not compete with other provisions of the Constitution so that the
Court should seek to reconcile it with other provisions. It prevails over and limits all provisions which give
power to make laws.
Accordingly no law can escape the application of s. 116 simply because it is a law which can be justified under
ss. 51 or 52 , or under some other legislative power. All the legislative powers of the Commonwealth are subject
to the condition which s. 116 imposes.
Again;

The Constitution, however, contains no provision which confers upon the Commonwealth Parliament any power
to make laws with respect to the subject of religion. Section 116 therefore cannot be regarded as prescribing the
content of laws made with respect to religion upon the basis that the Commonwealth Parliament has some power
of legislating with respect to religion. Section 116 is a general prohibition applying to all laws, under whatever
power those laws may be made. It is an overriding provision. It does not compete with other provisions of the
Constitution so that the Court should seek to reconcile it with other provisions. It prevails over and limits all
provisions which give power to make laws.
However, at 4 Latham CJ wrongly argued:

. Section 116 is required to protect the religion (or absence of religion) of minorities, and, in particular, of
unpopular minorities.
No such intention existed by the Framers of the Constitution Convention Bill 1898 (Constitution),
as their main issue was to prevent any kind of religious conflict to be created by any form of
Federal Parliament legislation. Even the funding of churches was held to be unconstitutional!
Mr. REID.-I suppose that money could not be paid to any church under this Constitution?
Mr. BARTON.-No; you have only two powers of spending money, and a church could not receive the
funds of the Commonwealth under either of them.
Even so Section 68 provide the Command in Chief in the Governor-General, only on advise of
Ministers can any declaration of war be made.
68 Command of naval and military forces

The command in chief of the naval and military forces of the
Commonwealth is vested in the Governor-General as the Queen’s
representative.
No declaration of war appears to have been made against Afghanistan and/or Iraq, yet Australian
troops were invading these sovereign nations.
Mr. BARTON.-
If we make it read that it shall take place on the date of the proclamation by the Governor-General it will only
take place when the Governor-General will take that action by publishing a proclamation. Then it would
follow the action of the Commonwealth.
Again; will take that action by publishing a proclamation
It shows; “Then it would follow the action of the Commonwealth”!
Therefore unless and until a DECLARATION OF WAR was published in the gazette there was
constitutionally no power for the Minister of Defence to authorise Australian troops to invade Ira on
19 March 2003 or there about and I view the High Court of Australia having had my case lodges
with supporting evidence that no DECLARATION OF WAR had been published, then was
constitutionally obligated to hear my case for Section 75(v) of the Constitution for a
Mandamus/Prohibition and its refusal to do so in my view only indicates that the High Court of
Australia could not care less what is constitutionally appropriate but merely, so to say, does charry
picking to elicit what perhaps might suit it best to justify or purportedly justify its orders.
Application of provisions relating to Governor-General.

4. The provision of this Constitution relating to the Governor-General extend and apply to the
Governor-General for the time being or other the Chief Executive Officer or Administrator of the
Government of the Commonwealth, by whatever title he is designated.
Mr. SYMON.-
We know that the Governor is the chief executive officer,
Mr. BARTON.-Yes. The Queen is the Commander-in-Chief of the British Army. She has the sole power
of making peace and war. According to constitutional assumption it is her army. But who exercises the
control of the Imperial Army? Is it not the adviser of the Queen? Would there not, as I said before, be a
revolution if the Queen exercised her powers without consulting her Ministers?
And
Mr. BARTON (New South Wales).-
Then, again, there is the prerogative right to declare war and peace, an adjunct of which it is that the
Queen herself, or her representative, where Her Majesty is not present, holds that prerogative. No one
would ever dream of saying that the Queen would declare war or peace without the advice of a responsible
Minister. Wherefore, we all came to the conclusion, as constitutional writers have long come to the
conclusion, that the prerogative is given in trust for the people, and is, therefore, only exercised at the
instance of a responsible Minister. I should like to know whether there would not be a revolution in
England if the Queen chose to declare war or to make peace without the sanction or advice of a
responsible Minister? That would be as absolutely gross an infraction of the Constitution as an attempt to
abolish the House of Commons, as the advent of a second Protector, not only taking away the bauble, but taking
all those who surrounded it. Do we not then come to this conclusion, that the Constitution is absolutely safe
in this form as we understand it, that you can not have a prerogative of the Crown in these modern days
which can be exercised without the advice of a responsible Minister if a responsible Minister chooses to
advise?
Yet, the High Court of Australia has allowed numerous breached of legislation in this regard. And
as shown further, it seems to lack any credibility to ensure the intentions of the framers are
appropriately applied.
Mr. BARTON.-
Another guarantee of the preservation of the Constitution [start page 2471] until the electors themselves
choose to change it, is contained in the provision that the interpretation of the Constitution by the High
Court is to be final. Of course it will be argued that this Constitution will have been made by the
Parliament of the United Kingdom. That will be true in one sense, but not true in effect, because the
provisions of this Constitution, the principles which it embodies, and the details of enactment by which
those principles are enforced, will all have been the work of Australians. I think it is right and fit that the
highest court in Australia should be left as the guardian of the expressions of the people, and the sole body to
determine finally what the people meant when they used those expressions.
And
We can have every faith in the constitution of that tribunal. It is appointed as the arbiter of the Constitution. It is
appointed not to be above the Constitution, for no citizen is above it, but under it; but it is appointed for
the purpose of saying that those who are the instruments of the Constitution-the Government and the
Parliament of the day-shall not become the masters of those whom, as to the Constitution, they are bound
to serve. What I mean is this: That if you, after making a Constitution of this kind, enable any
Government or any Parliament to twist or infringe its provisions, then by slow degrees you may have that
Constitution-if not altered in terms-so whittled away in operation that the guarantees of freedom which it
gives your people will not be maintained; and so, in the highest sense, the court you are creating here,
which is to be the final interpreter of that Constitution, will be such a tribunal as will preserve the popular
liberty in all these regards, and will prevent, under any pretext of constitutional action, the
Commonwealth from dominating the states, or the states from usurping the sphere of the Commonwealth.
Having provided for all these things, I think this Convention has done well. The question for us is this-the
question for the electors is this: Is this a Constitution which will enable a free people to come together, and in

community together to work out their own destiny? Who can deny it? Is it a Constitution which gives all
reasonable and liberal guarantees of freedom? That can only be answered in one way. Is it a Constitution the
action of which, until amended by the people, is preserved and safeguarded? There is only one answer to that. Is
it a Constitution which the people themselves, by their will expressed by their Parliament and themselves, are
able to alter to suit their needs under conditions of reasonable thought, without unreasonable difficulty? There
can be no answer but one to. that question
Adelaide Company of Jehovah's Witnesses Incorporated -v- The Commonwealth [1943] HCA 12; (1943) 67 CLR
116 (14 June 1943)
Under the Subversive Associations Regulations, 3 to 8 inclusive, if the Governor-General, by Order published in
the Gazette, declares that the existence of any body corporate or unincorporate is prejudicial to the defence of the
Commonwealth or the prosecution of the war, that body becomes an unlawful body and is dissolved by force of
the declaration (regs. 3 and 4). Any doctrines or principles which were advocated by that body become unlawful
and any printing or publishing of such doctrines or principles becomes unlawful; and no person shall hold or
convene any meeting or with any other person assemble in any place for the purpose of advocating such
doctrines (regs. 7 and 8). Any Minister can order any person to deliver any property of the body which was held
by or on behalf of or in the interests of the body to a person thereto authorized by a Minister; any member of the
Police Force of the Commonwealth or a State or Territory of the Commonwealth, if not below the rank of
sergeant, may by notice in writing declare that any persons specified in the notice are, with respect to any bank
account so specified, trustees for the body, and that declaration shall, as between the persons so specified or any
of them and the person on whom the notice is served, be conclusive evidence that those persons are trustees of
the body with respect to any moneys standing to the credit of the account (reg. 6). Any property taken possession
of, or delivered to a person thereto authorized by a Minister, in pursuance of the Regulations becomes forfeited to
the King for the use of the Commonwealth and is condemned by force of the regulation; such of the property as
the Attorney-General or an authorized person is satisfied belonged to a body which has been declared to be
unlawful may be destroyed or otherwise dealt with as the Attorney-General directs; such of the property as the
Attorney-General or an authorized person is satisfied did not belong to such a body and as consists of books,
documents or papers which the Attorney-General or an authorized person is satisfied were used or intended to be
used in connection with the activities of such a body, or which, in the opinion of the Attorney-General or an
authorized person, advocate unlawful doctrines, may be destroyed or otherwise dealt with as the Attorney-
General directs; and the remainder of the property may be returned to the owners thereof or otherwise dealt with
as the Attorney-General directs (reg. 6b).
I repeat;
Any Minister can order any person to deliver any property of the body which was held by or on behalf of or in
the interests of the body to a person thereto authorized by a Minister; any member of the Police Force of the
Commonwealth or a State or Territory of the Commonwealth, if not below the rank of sergeant, may by
notice in writing declare that any persons specified in the notice are, with respect to any bank account so
specified, trustees for the body, and that declaration shall, as between the persons so specified or any of them and
the person on whom the notice is served, be conclusive evidence that those persons are trustees of the body with
respect to any moneys standing to the credit of the account (reg. 6).
Well it is well overdue that judges of the High Court of Australia, so to say, smarten up about what
is constitutionally applicable as having members of the Commonwealth police force (AFP) invading
my State to perhaps seek top prevent me to exercise my democratic rights might rather end up with
them facing all kind of charges such as kidnapping (if they were to take me or anyone else in
custody) trespassing, etc if it is all done under Commonwealth law.
It must be obvious that lawyers are slowly, so to say, brainwashed by all these ill conceived High
Court of Australia judgments that portray a totally different kind of constitutional position then that
actually is constitutionally applicable. It also shows the danger where you have people getting into
judicial powers who, as it appears to me, really never bothered to research the Hansard records of
the Constitution Convention Debates sufficiently as to be able to hand down in all cases legally and
constitutionally soundly based judgments regarding the issues before the Court.
The mere fact that the High Court of Australia is now claiming that subsection 51(xx) was including
powers that previously never was understood by the High Court of Australia to exist in more then
100 years is a condemnation upon itself. If anything underlines that we need a better trained and
better educated High Court of Australia that will take the time to research all relevant matters
including researching the Hansard records of the Constitution Convention Debates and not so to say
have to get their education from a person like myself who had never any formal education in the
English language, neither English being my native language and who had no formal education in
legal matters yet somehow appears to understand and comprehend certain constitutional issues
better then any judge of the High Court of Australia. A clear example is, the issue regarding Section
127 of the Constitution, as it was at the time of federation.
The High Court of Australia stated (Wilson J);
although forbidden to consider the debates of our own constitutional conventions for the purpose of
discovering what the delegates thought was the meaning of a particular provision accepted by the
Convention
Why, when the intention of the Framers of the Constitution was, and so expressed time and again,
that the High Court of Australia would have to consult the Hansard records of the Constitution
Convention Debates as to elicit what their intentions were in regard of constitutional provisions.
Had the High Court of Australia not unconstitutionally from onset denied the usage of the Hansard
records of the Constitution Convention Debates then much of the legal mess existing might have
been avoided.
The statement;
The states have certain plenary powers, which we do not wish to cut down, except so far as may be
necessary for the purpose of federal government.
Underlines that subsection 51(xx) powers must be limited to what is necessary for the purpose of
federal government to enable registration, and no more. Workers conditions do not play any part
in the registration of companies as much as that it make not one of iota different to registration of an
elector to vote if he/she has any children!
Because the Commonwealth of Australia is contemplating to introduce some form of Identity Card
obviously citing fraudulent abuse as an excuse, the High Court of Australia ought to ensure it stop
this rot of power abuse contrary to civil rights and does not allow for further abuses of power.
This document is not for the purpose to set all matters out why constitutionally any form of identity
card by the Commonwealth of Australia would be invalid, but safe to say that it interferes with the
civil rights of citizens. And if there may be an issue about citizens obtaining passports, the jack
Thompson case is a clear example how the Commonwealth of Australia is misusing its powers as to
try to trace the rights of civilians to use their freedom of movement by checking a passport not for if
the person is the person so claimed but for ulterior purposes. And, constitutionally the
Commonwealth of Australia has no power to interfere with any Australian to leave or to return to
the Commonwealth of Australia and even this the Framers of the constitution extensively debated.
In my view, the conviction of jack Thomas was upon the wrong legal principles and on
unconstitutional laws. Likewise the withholding of a passport by any one, other then by order of a
State Court, is unconstitutional, yet the Minister of foreign Affairs has made known to cancel
passports of Australians the Commonwealth of Australia does not want to travel overseas. No such
constitutional powers exist but again, where we have a High Court of Australia that has handed
down a multitude of ill-conceived judgments then the Federal Government can do as it likes and
ignore constitutional prohibitions, and if anything the statement by Mr. Malcolm Turnbull about the
water issue and going to the High Court of Australia (despite my previous correspondence to him
about matters) to me underlines that the High Court of Australia, so to say, is a foot-soldier for the
Federal government to abuse and misuse its legal powers to serve the Federal Government.
Mr. BARTON.-
If we, in these communities in which we live, have no right whatever to anticipate a return of methods which
were practised under a different state or Constitution, under a less liberal measure of progress and advancement;
if, as this progress goes on, the rights of citizenship are more respected; if the divorce between Church and
State becomes more pronounced; if we have no fear of a recurrence of either the ideas or the methods of
former days with respect to these colonies, then I do suggest that in framing a Constitution for the
Commonwealth of Australia, which
And
The court referred to all those things, and to every piece of paper on which it could lay its hands, for the purpose
of deciding that the United States was a religious nation, and inasmuch as these expressions, which were dug up
by the court in grants, were used as much under a Catholic as under a Protestant regime, but under no other
regime, they then decided that the United States were not only a religious nation, but also a Christian nation.
Now, I think that those matters are better left in the hands of the states. The states have certain plenary
powers, which we do not wish to cut down, except so far as may be necessary for the purpose of federal
government. The states have power to impose Sunday observance laws. Each state-and it is only of states
that the Commonwealth will be composed-has power to regulate these things within its own territory, and
the territories of the states together make up the sum of the territory of the Commonwealth. So that there
is power in existence to deal with these matters without duplicating that power.
And
Mr. WISE.-I am very glad to hear it. That strengthens my argument. if 38,000 citizens of Victoria sent a
petition against the inclusion of these words, not because they disapproved of the words in themselves, but
because I suppose they were afraid that the inclusion of them would confer upon the Commonwealth some
power to legislate with regard to religious observances, I say that fears of that sort should be respected.
And
Dr. COCKBURN (South Australia).-May I ask the honorable member who moved the amendment whether
there is any other power the exercise of which is forbidden to the Commonwealth?
Mr. HIGGINS.-I do not think there is an express prohibition.
Dr. COCKBURN.-I think there is not. It seems to me that by making one exception we are introducing a
whole atmosphere of ambiguities; that is to say, the Commonwealth at present can only exercise such powers as
are explicitly vested in it. If, in addition to that, we forbid the exercise of some power, we leave an ambiguous
area between the powers specifically vested in the Commonwealth and the powers forbidden. That opens out a
whole circle of ambiguity in this respect.
Mr. HIGGINS.-I think I was wrong in what I just now stated; there is a prohibition with regard to the states in
clause 108, and there was a prohibition as to the states in clause 109.
Dr. COCKBURN.-There are many prohibitions with regard to the states. I am very much in sympathy with
Mr. Higgins, and if he can point out any case of this kind I would go with him.
Mr. OCONNOR.-Clause 109 was a prohibition, but it has been struck out.
Dr. COCKBURN.-It seems tome that by passing this provision we shall open the door to the possibility of
doubt as to the Commonwealth having more powers than we have vested in it.
[start page 1775]
Mr. WISE.-There is a prohibition with regard to interference with trade and commerce.
Dr. COCKBURN.-That is a limitation of power which is wholly vested and explicitly placed in the hands
of the Commonwealth. It is simply a limitation of the exercise of its executive power, but this is of a
different description. It seems to me that by introducing this clause we shall run the risk of indicating that
there is another sphere of powers which, though not specified as belonging to the Commonwealth, are not
forbidden.
Mr. HIGGINS.-The 117th clause says that a new state shall not be formed by the separation of territory
from a state without the consent of the Parliament of that state. That forbids even the Federal Parliament
forming a new state.
Mr. WISE.-Clause 95 provides that preferences shall not be given.
Dr. COCKBURN.-That is a limitation of the executive power, and none of the instances advanced have
satisfied me on the point I have endeavoured to lay before honorable members. I see clearly in my own mind that
an exception in this respect will throw some doubt as to the whole scope of the powers of the Commonwealth.
By inserting these words, it may be decided that there are some powers in the hands of the Commonwealth which
are not explicitly recognised and stated.
Mr. FRASER (Victoria).-I entirely agree with our leader in this matter. I do not see that there is any necessity
for this clause. We are now a homogeneous people, and the safer plan is to leave us so.
Mr. HIGGINS.-That is what we want to do.
Mr. FRASER.-I am not so very sure about that. If you pass this date all sorts of extraordinary practices may be
resorted to that would, as I have already interjected, shock the whole community.
Mr. WISE.-Suppose the Federal Parliament passes a law allowing Sunday newspapers, would the Victorians
like that?
Mr. ISAACS.-They would have no jurisdiction.
Mr. WISE.-Yes, they would, if this is struck out.
Mr. ISAACS-Under what clause?
Mr. WISE.-Under the same clause as in America.
Mr. FRASER.-If the Federal Parliament chooses to act in this matter of Sunday newspapers, the people will be
cognisant of all that is done.
Mr. WISE.-We do not think them wrong in New South Wales.
Mr. FRASER.-The probability is that a majority of the people of New South Wales think that it is wrong to
allow Sunday newspapers, but they have not the courage to put them down. I believe that is the real fact. I
believe that the public men of New South Wales, have not the courage to tackle them. That is about the answer to
that interjection. If the public men have not courage to deal with these matters, of course the public will follow
them in various devious paths. I do not see the necessity for this clause. I hope that we are not going to be driven
to accept all sorts of extraordinary proposals simply because of something that has taken place in the United
States. We are able to take care of ourselves, and I think the clause would do more harm than good.
Sir EDWARD BRADDON.-What harm would it do?
Mr. FRASER.-It might offend the susceptibilities of a homogeneous people, and in that way cause trouble and
difficulty. There would be no danger in omitting the clause, but there may be danger in putting it in.
Mr. SYMON (South Australia).-I beg to move, as an amendment-
That all the words down to "and" be omitted, with a view to the insertion in lieu thereof of the following:-
"Nothing in this Constitution [start page 1776] shall be held to empower the Commonwealth to require
any religious test as a qualification for any office of public trust under the Commonwealth."
I do not oppose the earlier part of the clause on the same ground as I put before, because I am satisfied in regard
to those matters, to which attention was directed when clause 109 was under discussion, that under the ordinary
operation of the common law any inhumanities and cruelties could be effectually stopped.
Mr. HIGGINS.-By which Parliament?
Mr. SYMON.-By either the state or the Commonwealth Parliament. I mention that to show that I do not
change my view that that part of the clause is objectionable. But I hold strongly that in consequence of the
insertion of the new words in the preamble it is desirable that some provision should be made to make it clear
that these words are not to overspread the whole Constitution.
Mr. ISAACS.-Would not your view be carried out by leaving the residuum of the clause just as it stands?
Mr. SYMON.-I should have no objection to that, but I think it would be better to say that nothing in the
Constitution shall empower the Commonwealth to impose any religious test. I sympathize with Mr. Higgins in
his fear that the insertion of the words we put in the preamble might lead to an impression amongst a larger or

smaller section of the community that it would be possible to impose some religious test, and that the sentiment
conveyed by the words might overspread the Constitution in some way. My honorable friend desires that there
should be something in the nature of a counterblast, for the satisfaction of those who may entertain that
apprehension.
Mr. FRASER.-There is no necessity for it.
Mr. SYMON.-There is great force in what Mr. Fraser says, but there are a number of us who, for reasons
which do not militate against our deep reverence and the deep faith that may be in us, think that the words
inserted in the preamble are, at all events, open to misconstruction on the part of a larger or smaller section of the
community. I do not wish to enter into the subject, but I felt that, and it is with a view of getting rid of any
apprehension of that kind, and of securing every vote possible for this. Bill, that I think it well to yield to the
view that has been expressed so forcibly by Mr. Higgins.
Mr. FRASER.-That is the only argument in its favour.
Mr. SYMON.-It is a strong argument. We have inserted certain words in the preamble, and we should put in as
a solatium, if you like, to those holding opinions in opposition to these words, something else on which the may
rely.
Mr. DOBSON.-Would not the amendment leave it open to the Federal Parliament to dictate to any state that it
should not open its picture galleries and museums on Sunday?
Mr. SYMON.-There, is no power under the Constitution that would enable the Federal Parliament to do that. I
am satisfied that it is embodied in the Constitution as a part of the unwritten law that no church establishment
shall prevail, and that religious freedom shall be observed.
Again;
Mr. DOBSON.-Would not the amendment leave it open to the Federal Parliament to dictate to any state that it
should not open its picture galleries and museums on Sunday?
Mr. SYMON.-There, is no power under the Constitution that would enable the Federal Parliament to do
that.
And
Mr. OCONNOR.-The provisions of the American Constitution in regard to the powers handed over to the
Federal Parliament are not nearly so definite as the provisions of our Constitution.
Mr. HIGGINS.-The American Constitution has no recital in the preamble such as we have just inserted in our
Constitution.
Mr. OCONNOR.-Yes. But the amendment of the American Constitution to which the honorable and learned
member refers was rendered necessary by the fact that there is not the definite division of powers in that
Constitution that we have in our Constitution. I cannot imagine that clause 52 gives any ground from which it
could be argued that the Federal Parliament has the right to interfere in regard to the exercise of religion, or to
deal with religion in any way.
Mr. KINGSTON.-Except in regard to special races.

And
Mr. HIGGINS (Victoria).-I want if I can to recommend the Commonwealth Bill and get it carried. But why
should we be faced with this difficulty? You have put in the preamble a religious recital which is not in the
Constitution of the United States of America, but you have not put in the safeguard against religious intolerance
which they have there. I ask honorable members how I shall face that difficulty? There is a grave suspicion
evidenced by what I said that there were 36,000 distinct signatures upon this very point. I do not think it is too
much for me to say that we ought to reassure those persons. They may be wrong. It may be right, as my friend
(Mr. Barton) says, that there is no power by implication in the Commonwealth to pass this law. It may be right as
he says, that the Commonwealth ought to have the power. But I only say that it is a state matter, and it should be
left to the states. My honorable friend (Mr. Fraser), with all respect to him, shows the current ignorance on this
matter because he will not understand that the state, if my proposal is carried, will have the same power as it has
now to stop any theatrical performances on Sunday.
Question-That the words proposed to be omitted stand part of the proposed new clause-put.

The committee divided-
Ayes ... ... ... 22
Noes ... ... ... 19

Section 116 of the Constitution was passed!
Do note;
Mr. SYMON.-There, is no power under the Constitution that would enable the Federal Parliament to do
that.
Well, if one belief the High Court of Australia then subsection 51(xx) might just allow for this also
where it concerns a corporation.
Do note;
the rights of citizenship are more respected; if the divorce between Church and State becomes more
pronounced
Do note, that as Section 109 was omitted (on 8-2-1898) the new sought version submitted was;
The Commonwealth shall not make any law prohibiting the free exercise of any religion, or for the
establishment of any religion, or imposing any religious observance, and no religious test shall be required
as a qualification for any office or public trust under the Commonwealth.
Followed with the amendment;

Mr. SYMON (South Australia).-I beg to move, as an amendment-
That all the words down to "and" be omitted, with a view to the insertion in lieu thereof of the following:-
"Nothing in this Constitution [start page 1776] shall be held to empower the Commonwealth to require
any religious test as a qualification for any office of public trust under the Commonwealth."
I do not oppose the earlier part of the clause on the same ground as I put before, because I am satisfied in regard
to those matters, to which attention was directed when clause 109 was under discussion, that under the ordinary
operation of the common law any inhumanities and cruelties could be effectually stopped.
Again; the warning of Barton;-
It referred to the grants to the planters and to those who had taken up the plantations in America, as well as to the
charters and enactments under which they were governed. The court referred to all those things, and to every
piece of paper on which it could lay its hands, for the purpose of deciding that the United States was a religious
nation, and inasmuch as these expressions, which were dug up by the court in grants, were used as much under a
Catholic as under a Protestant regime, but under no other regime, they then decided that the United States were
not only a religious nation, but also a Christian nation. Now, I think that those matters are better left in the
hands of the states.
JUDGE5
MURPHY J.
3. The plaintiffs' principal contention is that the challenged legislation is invalid in so far as it provides for
financial aid to non-government schools. (at p620)
4. Almost all the non-government schools are what are known as "church" or "denominational" or in the United
States, "sectarian" or "parochial" schools. All these have a religious element. The general picture is that as well
as secular instruction each of the church schools engages in instruction in its particular religion and engages in
religious observances and worship. Most of the buildings are adorned with religious symbols. The churches to
which the schools are related exercise varying degrees of supervision over the conduct of the schools. The
recipients of the moneys channelled through the challenged Acts are churches associated with the different
religions. There was strong contention between the plaintiffs and the defendants over the extent and degree of the
religious element, although in the end, much was agreed. My legal conclusions do not depend on any difference
between the opposing factual claims. (at p620)
And

9. The Commonwealth Government contended that s. 116 did not apply to grants or conditions on grants under
s. 96, nor to appropriation laws under s. 81 of the Constitution. It asserted that Parliament could under s. 96 grant
say a hundred million dollars to the States on the condition that the money was used "for establishing a religion"
and could, under s. 81 of the Constitution, appropriate moneys directly for the building of a cathedral, or for the
propagation of religious tracts, free of any prohibition in s. 116. I would reject these propositions. (at p621)
Again;
Murphy was correct in that regard but as shown below Treasurer Peter Costello nevertheless did
give a multimillion dollar donation to the Catholic Church in Melbourne!
10. Latham C.J. said in Adelaide Company of Jehovah's Witnesses Inc. v. The Commonwealth
(1943) 67 CLR 116, at p 123 :
"Section 116 is a general prohibition applying to all laws, under whatever power those laws may be made. It
is an overriding provision. It does not compete with other provisions of the Constitution so that the Court should
seek to reconcile it with other provisions. It prevails over and limits all provisions which give power to make
laws.
Accordingly no law can escape the application of s. 116 simply because it is a law which can be justified
under ss. 51 or 52 , or under some other legislative power. All the legislative powers of the Commonwealth are
subject to the condition which s. 116 imposes."
McTiernan J. said (1943) 67 CLR, at p 156 : "Section 116 imposes a restriction on all the legislative powers of
the Parliament." (at p621)
Yet, as shown above, somehow the framers viewed that Section 51(xxvi) about coloured racers
stood apart. This, even so it would also affect every Australian national of that particular “race”!
Somehow the framers were confused in that regard as to the full extend of the application of Section
116 of the Constitution. In my view, Section 51(xxvi) would be in the same position as other
provisions that Section 116 was overriding all matters. Subsection 51(xxxv) would make no sense
if the Framers of the Constitution intended a meaning to subsection 51(xx) as now fabricated
to it by the High Court of Australia, hence the High Court judgment must fail!
Section 96 is meaningless without any legislative powers within Section 51 and 52, as there must be
an Appropriation bill to provide constitutional power to take monies from the consolidated
Revenue, and as such Section 96 remains in that regard also subject to Section 116.
18. "Non-preferential" sponsoring of or aiding religion is still "establishing" religion. In the nineteenth century
"establishment" was not restricted to sponsorship of or aid to one church or religion, although such sponsorship
or support was of course referred to as establishment. It was also understood to include sponsorship or support of
all churches, and was referred to as indiscriminate establishment. In The State and its Relations with the Church
Gladstone stated that "The Australian colonies have most broadly avowed the principle of indiscriminate
establishment".
He described endowment of Roman Catholic chaplains and ministers as "state establishment of the Roman
Catholic Church" and as part of this indiscriminate establishment (pp. 269-273). (at p624)
And
21. Douglas J. refers to this in his partial dissent in Tilton v. Richardson (1971) 403 US 672, at pp 695-696 (29
Law Ed 790, at pp 808-809) :
"Much is made of the need for public aid to church schools in light of their pressing fiscal problems. Dr
Eugene C. Blake of the Presbyterian Church, however, wrote in 1959:
'When one remembers that churches pay no inheritance tax (churches do not die), that churches may own and
operate business and be exempt from the 52 percent corporate income tax, and that real property used for church
purposes (which in some states are most generously construed) is tax exempt, it is not unreasonable to prophesy
that with reasonably prudent management, the churches ought to be able to control the whole economy of the
nation within the predictable future. That the growing wealth and property of the churches was partially
responsible for revolutionary expropriations of church property in England in the sixteenth century, in France in
the eighteenth century, in Italy in the nineteenth century, and in Mexico, Russia, Czechoslovakia and Hungary
(to name a few examples) in the twentieth century, seems self-evident.
A government with mounting tax problems cannot be expected to keep its hands off the wealth of a rich church
forever. That such a revolution is always accompanied by anticlericalism and atheism should not be surprising.'
The mounting wealth of the churches makes ironic their incessant demands on the public treasury. I said in
my dissent in Walz v. Tax Commission of New York (1970) 397 US 664, AT P 714 (25 Law Ed 2d 697, at p
727) : 'The religiously used real estate of the churches today constitutes a vast domain.
See M. Larson & C. Lowell, The Churches: Their Riches, Revenues, and Immunities (1969). Their assets total
over $141 billion and their annual income at least $22 billion. And the extent to which they are feeding from the
public trough in a variety of forms is alarming.'" (at p626)
22. In the United States, after deleterious consequences of aid to religion were observed in some of the states,
the architects of its Constitution determined to prevent repetion there of the unfortunate experience of other
countries by creating a 'wall of separation' between religion and State. (See J. Bryce, The American Constitution
(1888), vol.3, pp. 465-466.) (at p626)
As it was made clear (see my quotations above) that no power existed to fund Churches, then
neither can there be any kind of tax exemption or tax deduction in that regard.
I view, that tax deductions for donations to a church are unconstitutional as are the tax free
provisions in regard of churches. It might be one thing for the State to not want to charge any kind
of council rate charges, but it is another thing for the Commonwealth not to charge taxation in the
same manner as it would upon any other organization! While it might be to some extend having a
flow on to the finances of the church and its aid to the poor, that is another issue, as the principle is
that no kind of direct or indirect financial assistance ought to be provided by the Commonwealth of
Australia to any religion (so churches). What stops a religion to set up schools with financial
assistance of the Commonwealth and then sell them off?
We have currently an issue in our local area, where the local church (I am not a member of it) is
turning its land in to building flats, as to escalate its income, because of pressure of the American
based managers. Here we are, having a church to be free from taxes and rates only for the profits to
go overseas. We have now American churches entering the Australian domain, where we will see a
flood of donations untaxed being transferred to its American owners! Why should ordinary
taxpayers end up compensating the sucking-of of untaxed moneys to another country, by them
having to pay more tax to compensate for the loss of taxation of the churches?
If churches were to be standing as any other tax paying identity, then unlikely would so much
money be flooding overseas untaxed! Therefore, we must take stock of it all and realise we cannot
have it our way as it may suit us today, but must consider the overall issue. No financial funding for
any Church means that neither this can be done indirectly by not charging taxation or by giving tax
deductions to those who are making a donation to a religious organization.
Again the Court Stated;
A reading of s. 116 that the prohibition against "any law for establishing any religion" does not prohibit a law
which sponsors or supports religions, but prohibits only laws for the setting up of a national church or religion, or
alternatively prohibits only preferential sponsorship or support of one or more religions, makes a mockery of s.
116.
Yet, where the US has a simular clause the US Courts then held that any funding would be a
discrimination against non religious people and cannot be tolerated.
Due to the extensive material to set this out, and already having been the subject of successful
litigation by me and having been included in my book that was filed as evidence in my case for the
19 July 2006 hearing further extensive set out therefore can be located in my 6-7-2007 published
book;
INSPECTOR-RIKATI® & What is the -Australian way of life- really?
A book on CD on Australians political, religious & other rights
ISBN 978-0-9751760-2-3 was ISBN 0-9751760-2-1
JUDGE7
WILSON J
33. In the case of s. 81, the defendants say that Appropriation Acts are not affected by s. 116 . They are financial,
not regulative, laws. Reliance is placed upon passages in the reasons for judgment of Stephen J. and Jacobs J. in
Victoria v. The Commonwealth and Hayden (the A.A.P. Case) (1975) 134 CLR 338, at pp 386, 411 . So much
may readily be conceded, yet just as in the A.A.P. Case the "purpose" of the appropriation was to finance an
executive activity of the Commonwealth for which there was no constitutional authority, so here an appropriation
may provide the occasion for review: cf. Mason J., A.A.P. Case (1975) 134 CLR, at pp 402-404 . (at p651)
I state it again;
JUDGE7
WILSON J
41. If it seems remote from reality to be speaking in terms such as these about a constitutional provision, it must
be remembered that the eighty years that have elapsed since federation have witnessed a marked change in the
status and role of the church in the Australian community with a corresponding diminution of the sense of
authority that formerly attached to the ecclesiastical realm. (at p654)
This got absolutely nothing to do with it. A referendum could always be held to amend the
Constitution, if that is what is needed, but one cannot change the application of powers and
limitations and prohibitions of the Constitution as if this were so then we have no constitution at all
but some worthless document purporting to be a Constitution in the hands of those wielding the
power to enforce it as they pleases.
42. Furthermore, it may be thought to be surprising that a prohibition of the kind that I have described was
included in the absence of any express legislative power whereby the Parliament could ever have pursued such
an objective. It may be that the explanation for any such incongruity is to be found in the chequered history of
the clause in the constitutional conventions in the eighteen-nineties, and in an anxiety lest an inference of power
was to be drawn from the acknowledgment of Almighty God in the preamble to the Commonwealth of Australia
Constitution Act. While on present authority it is not permissible to seek the meaning of s. 116 in the
convention debates, I may say that I find it interesting that in the course of the conventions the religion clause
began as a denial of power to the States, then was re-addressed to both the States and the Commonwealth, and
finally took its present form.
The separationist view of establishment, for which the plaintiffs contend, does not sit well with the form of s.
116, addressed as it is only to the Commonwealth Parliament. The objective sought to be achieved by a clause
construed consistently with the plaintiffs' contention could so easily be subverted by any of the State legislatures,
which remain free to give such aid or support to religious bodies as they wished. But no State legislature could
establish a national religion, and hence the prohibition was rightly directed to the Commonwealth. It will also be
recalled that the 1898 Convention was invited to adopt a form of words for the religion clause which would have
placed the present issue beyond doubt, when an amendment from Tasmania to the effect that the clause include
the words "nor appropriate any portion of its property for the propagation or support of any religion" was
proposed and defeated.
Be these things as they may, I believe it would be wrong to attach undue significance to the history of the clause.
The actual words of the text supply the only firm ground on which to base a conlusion. (at p654)!
Again;
While on present authority it is not permissible to seek the meaning of s. 116 in the
convention debates,
Yet, then goes into referring to it all, just not disclosing;

(Again)

This would clearly have addressed the issue! See also the Mr Wise statement!
On 50 Wilson J then refers to Section 96 and the usage of it, as stated in past decisions, even the
Privy Council, but again Barton made it very clear there was no constitutional powers to grant
monies for any church, and therefore Section 96 must not be used to circumvent it. albeit, it
appears to me that Section 96 was added after the Constitutional Convention Debates was
concluded., this cannot alter one of iota what Barton made clear, that there is no constitutional
powers for the Commonwealth of Australia to fund churches. Section 96 can do no more but
provide for grants which are within existing constitutional powers.
Say the armed forces causing damages to road ways of a rural town. The Commonwealth of
Australia could then utilize Section 96 to make a grand to compensate for damages, or to make a
grand to upgrade a road for purpose of heavy armoured vehicles using it subsequently, etc.
Section 96 must not be perceived to be some kind of power that could override Section 51 and 52!
As Barton made clear, the Commonwealth of Australia could only exercise powers specifically
given, and hence Section 96 grants must be within this format!
The breadwinner issue (On a lighter note!);

Mr. GLYNN.-I would not raise the objection if I were not prepared to offer a solution. I mentioned before that
the difficulty of distributing the surplus could be got over by averaging the proportion of females and children to
males in all the colonies. I cannot see any objection to that.
Mr. MCMILLAN.-It would be expensive.
Mr. GLYNN.-There may be some humour in that, but I do not see it.
Mr. REID.-It is not meant for humour.
Mr. GLYNN.-The statistics show the proportion of males to females and children. You would then take the
average proportion for the whole Commonwealth, and you could strike an average on that for each state. All you
have to do is to allot the surplus according to the average proportion of males to females and children.
Mr. MCMILLAN.-Would it not be better to equalize matters by the importation of females?
Mr. GLYNN.-I see there is a little humour oozing out after all in a matter that lends itself to it, but I shall
refrain from taking notice of it, notwithstanding my nationality. If that would be a fair basis for distributing a
surplus, it would also be fair in the allotment of the expenditure. The difficulty in Western Australia is that the
families are not in Western Australia, but in Victoria, and in other colonies, whilst the bread-winners are in
Western Australia. If what I propose be carried out, there would be an additional benefit, because Western
Australia would get a larger portion of the surplus in respect of people now living in the other colonies.
Sir JOHN FORREST.-How could you arrive at the number of bread-winners who are in Western Australia?
Mr. GLYNN.-It could be ascertained easily from the statistics or the census. An average could be arrived at for
the whole of the five colonies, and on that average the allotment could be made. Honorable members may not see
the point of what I am urging, but it ought to be very carefully considered. All that you have to do is to allow the
same proportion of females and children to males in Western Australia as actually exists in the other colonies. If
you do that, the allotment of the surplus per capita cannot possibly injure Western Australia.
Mr. SOLOMON.-If that were the only cause of discrepancy it would be all right, but that is not the case.

Mr. GLYNN.-That is the chief obstacle to a per capita distribution of the surplus.
Mr. SOLOMON.-Not at all; there is the question of wages, which are 100 percent. higher than in the other
colonies, and therefore the spending power is greater.
Mr. GLYNN.-That affects production.
Mr. SOLOMON.-It affects the revenue.

Mr. GLYNN.-Decidedly; but it does not matter what the revenue is, it has to be paid whether the population is
160,000 or 260,000, and is not revenue on a per capita basis. I am dealing with the allotment of the surplus and
its distribution on a per capita principle. Although the bread-winners reside in Western Australia, many of their
families do not, and the discrepancy could be got over in the way I mention.
Confusion at the Constitution Convention about taxation raising powers!
Mr. SOLOMON.-I do not propose to give the Federal Parliament power to raise revenue by direct taxation,
and I do, not think the Convention does.
Mr. SYMON-.Oh, yes.
Mr. SOLOMON.-The sub-section in clause 52 has never been put before our people as a mode of taxation for
revenue purposes.
Mr. SYMON.-Oh yes, it has.
Mr. SOLOMON.-I do not know that. It has always been put before the people as a provision which was only
to be used in case of difficulty.
The CHAIRMAN.-Does the honorable member think he is in order in discussing clause 52, which we have
passed?
[start page 1059]
Mr. SOLOMON.-Inasmuch as that clause is intended to be recommitted, and as I myself propose to ask for its
recommittal, if no other honorable member does, I think I am in order in referring to it while discussing the
question now before the Chair.
The CHAIRMAN.-When clause 52 is recommitted will be the proper time to discuss it.
Mr. SOLOMON.-With all due deference to you, Mr. Chairman, I think I am absolutely in order, seeing that
clause 52 has a bearing on this question, and is within the lines of the present discussion. However, I do not
intend to keep the Convention any longer. I recognise that there is a very great difficulty to be overcome-I
recognise that the guarantee that each state shall receive a revenue equal, or nearly equal, to the revenue realized
now, is necessary to recommend this Constitution to a large section of our people, and recognising that fact, I
venture to think that the little time I have occupied in discussing this question has not been misspent.
Mr. FRASER.-
The Bill provides that half of the senators go to their constituents every three years, and that the members of the
other House shall be elected every three years, or probably at shorter intervals.
Every 3-years is that the maximum election date is to be 3 years from the previous election!
As indicated in my book on CD, INSPECTOR-RIKATI® on CITIZENSHIP, there is no such
thing as a care taking Government beyond the 3-years! All powers seize to exist, including taxation!
Elections for Senators are held within the expiry date of the 3-year period of a Senator sitting, and
the true intention of the framers was that likewise, an election for becoming a Member of the House
of Representatives would be within 3-years of the last election! This would mean that at maximum
after two subsequent elections Senate and house of Representative elections would have to be head
in the same period, if they followed a Double Dissolution election six years earlier. Not, that the
House of Representatives sit for 3-years and then the federal executive continues as a care taking
government for another period of time as elections are held after the 3-year conclusion.
For the record, proper reading of the Constitutional Convention Debates indicate that After the 3-
year period of the House sitting, all constitutional powers seize to exist. As such, the care taking
powers of the federal executive can only be allowed for the remainder of the 3-year period and no
longer. It cannot enforce any taxation or other laws beyond the 3-year period without having a new
Parliament sitting! There must always be a Parliament, sitting or in recess! It is the parliament that
provides for the right of maintaining laws, the Federal Executive no more but can act to execute the
laws. Regrettably, it is a bit confusing how the framers discuss matters, as they also argue that the
3-year period is from the first sitting of the new Parliament. This seems to indicate that therefore the
3-year period is from when ever an election is held. However, this would not facilitate for the two
three year periods of the House of Representatives to sit during the six year term of the Senate.
Basically, say the Election after a Double Dissolution is held and the Parliament sits on 10 February
2005 for the first time. Then taking that each and every House of Representatives were to sit the full
term, then each and subsequent election would be held no later and parliament to sit by no later then
10 February of three year cycles. When the House of Representatives therefore is dissolved in, say,
December, then this allow for a Care Taking Government to exist up to 10 February the following
year but not a day longer. This, as all legislation would come to a halt if there is no Parliament as
such in existence.
The current system to allow maximum 3-years and then artificially increase it with an extension of
election period, and then the first day of sitting is unconstitutional.
Again, INSPECTOR-RIKATI® on CITIZENSHIP set this out in greater details.
Back to the issue of subsection 51(xx)
Mr. SYMON.-I do not think that it is necessary to frame a definition of "citizen." A citizen is one who is
entitled to the immunities of citizenship. In short, a citizen is a citizen. I do not think you require a
definition, of "citizen" any more than you require a definition of "man" or "subject."
Mr. ISAACS.-Would you include a corporation in the term "citizen"?
Mr. SYMON.-Why not?
Mr. ISAACS.-Well, in America they do not.
Mr. SYMON.-I do not see why a corporation existing in one colony should not have the rights of a corporation
in another colony. Otherwise you defeat the objects of this Constitution.
[start page 1783]
Mr. ISAACS.-I agree that that ought to be so, but the word "citizen" will not include a corporation.
Mr. SYMON.-Well, in my opinion it should. I think, however, though I am not prepared to say definitely, that
other provisions in the Constitution would deal with that case. Clause 52 provides that we are to have uniformity,
and I think would prevent any difficulty in regard to corporations, quite apart from the question of the meaning of
the word "citizen." But if you ask me whether a corporation might not come within the definition of
"citizen" to a certain extent-not, of course, in regard to the right of the voting and so on-I should say that
it would. The difficulty is one that requires to be met. Although I admit that the amended American
Constitution goes further than anything we require, and is directed to a particular and special condition of
things, this provision seems to me absolutely essential, and, in my opinion, the Constitution would be
incomplete without it.
The basic understanding I have from the Constitution Convention Debates is that the registrations
and general conduct of how corporations are set up is what was the issue for giving constitutional
powers to regulate them, albeit not to exclude or otherwise deny them to operate within the
Commonwealth of Australia, even so this latter seems to be done anyhow. Nothing was there even
remotely to suggest that it was to deal with how people were employed by such corporations and
indeed, considering other statements made by the Framers it is clear that Industrial Relations
matters within state borders are and remain for the State to legislate.
Below extensive quotations of the Hansard about throughout the Commonwealth, equality of trade,
etc.
Amendment suggested by the Legislative Assembly of Western Australia.
Line 3, omit "throughout the Commonwealth," insert "between the states."
Mr. ISAACS (Victoria).-Honorable members will recollect that when in Adelaide I placed considerable
importance upon the necessity of altering the wording of this clause. I drew attention to its enormously wide
verbiage, and to the dangers which I considered attended its adoption in its present form. I pointed out that the
term "trade and intercourse" included everything relating to commerce and trade-taxes, licences of all kinds,
publicans' licences, auctioneers' licences, hawkers' licences, municipal licences. It is in consequence of the
almost unlimited meaning attaching to these words in the United States Constitution that the Supreme Court
there exercises such unbounded control over the subject. I am not going to repeat in detail what I said in
Adelaide, because honorable members will find it in the report of the debate. But I wish again to press the matter
upon the attention of the committee, and I have to state, with a good deal of pleasure, that Sir Samuel Griffith, in
his able paper upon the question, has drawn attention to the same point. His observations upon the subject are
these:-
I venture, before passing from this subject, to suggest a doubt whether the words of section 89 (which are the
same as in the Draft Bill of 1891) are, in their modern sense, quite apt to express the meaning intended to be
conveyed. It is, clearly, not proposed to interfere with the internal regulation of trade by means of licences, nor to
prevent the imposition of reasonable rates on state railways. I apprehend that the real meaning is that the free
course of trade and commerce between different parts of the Commonwealth is not to be restricted or interfered
with by any taxes, charges, or imposts. Would it not be better to use these or similar words?
He then considers what should be done if it is intended to include interference with the railway rates. I should
like to point out why the danger of the expression to which I have drawn attention is so very great. The words
"trade and intercourse" are almost unbounded in their meaning when you apply them to the relations of trade and
commerce, and, under the proper heads, Baker's Annotated Constitution is full of instances showing how far-
reaching these words are. Then, take the words "throughout the Commonwealth." The meaning of those
words is not restricted to between the states; they refer to every part of the Commonwealth, and I would
refer honorable members to earlier portions of the Bill where the same meaning will have to be given to
them. If honorable members will turn to clause 52, which deals with the powers of the Parliament, they will find
that in sub-section (2) the Federal Parliament is empowered to legislate in regard to customs, excise, and
bounties, which shall be uniform "throughout the Commonwealth." That is, within every state and every part of a
state. "Throughout the Commonwealth" is the largest expression that can be used. In the next sub-section it is
provided that all taxation shall be uniform throughout the Commonwealth. An income tax or a property tax raised
under any federal law must be uniform "throughout the Commonwealth." That is, in every part of the
Commonwealth. In clause 89 we find the same words again, and there can be no reasonable doubt that their
meaning is the same in one clause as in all. Clause 89 provides that all trade and intercourse of every kind
throughout the Commonwealth, whether by means of internal [start page 1015] carriage or ocean navigation,
shall be absolutely free. Free of what? Free of everything.
Mr. LYNE.-Not free of freight charges.
Mr. ISAACS.-No. They are charges for services. The clause means that the Commonwealth is not to put a
restriction upon trade in any way whatever, not merely by means of customs or excise duties, but you are to
leave every person absolutely free of any limitation of his common law right of carrying on his trade. As I
have said, Sir Samuel Griffith has pointed that out again, and I do think we shall be taking a wrong course if
we leave so important a matter in doubt. It is very important, even at the present time, because it means in
licence-fees alone some £350,000.
Mr. LYNE.-Why do you say licence fees?
Mr. ISAACS.-Because that is trade and intercourse. If a man goes into an hotel and says-"I want to purchase
liquor from you," that is trade and intercourse. If the hotel-keeper is told that he must not sell the liquor unless he
pays the licence-fee he will turn to this clause and say-"You have no right to charge me a licence-fee."
Mr. LYNE.-Do not you give all these licence-fees to the local bodies.
Mr. ISAACS.-If that construction is possible under the clause there will be no power in the local body, the
state Parliament, or the Federal Parliament to authorize such a charge.
Mr. LYNE.-I quite see that; but it is a fact that you do give licence-fees to the local bodies.
Mr. ISAACS.-That may be so. It all depends on the law of the particular state.
Mr. OCONNOR.-Do not the words "whether by means of internal carriage or ocean navigation " restrict the
operation of the clause to transit?
Mr. ISAACS.-I should say not, and even if it did it would apply within the states to hawking. What we want to
do is to establish free-trade between the different parts of the Commonwealth, and I would press my honorable
friends to consider again the words of Sir Samuel Griffith.
An HONORABLE MEMBER.-What page?
Mr. ISAACS.-Page 354 of the Victorian Blue-book. I am perfectly willing to leave the matter to the Drafting
Committee. It is important now, and it will increase in importance as time goes on. We do not know what
questions may arise, and the meaning of the clause is bound to be tested almost on the first opportunity in the
Federal Court. We should be in a very sorry plight if a decision were given following the American decisions
which carried us much further than we anticipated, and there had to be a referendum of the states and of the
people to get the clause altered. We want to get inter-state freedom of trade, and I am sure that we are capable of
expressing that intention. I am willing to leave it to the Drafting Committee, but, as a basis, I think Sir Samuel
Griffith's words are very good.
Mr. BARTON (New South Wales).-I should not like, anxious as I am that the work of the Convention should
proceed, to see a step of this kind taken without the opinions of honorable members being ascertained upon it. It
is not a matter that can be disposed of at once. I admit that my honorable friend (Mr. Isaacs) has put his
contention with force, as he puts everything, but a great deal may be said in favour of the present form of the
clause. Whether the expression used is open to the danger of being construed so as to apply to matters affecting
the internal regulation of trade within the states is a point upon which I have not made up my mind, and upon
which I desire to preserve an open attitude. This term has remained in the draft from the beginning. It is, I think,
Sir Samuel Griffith's own term, although he offers some criticism upon it now, and it corresponds with the
uniformity provision, [start page 1016] as my honorable friend has pointed out, in clause 52. Then, again,
looking at clause 95, the preference clause, the other expression is used. That clause contains the words-
Any law or regulation made by the Commonwealth, or by any state, or by any authority constituted by the
Commonwealth, or by any state, having the effect of derogating from freedom of trade or commerce between the
different parts of the Commonwealth, shall be null and void.
Mr. ISAACS.-Would not that be almost sufficient in itself?
Mr. BARTON.-I want to put the matter judicially, and I admit that the existence of these words in clause 95
may somewhat strengthen the honorable member's contention. I was going to suggest, when the time came, that
clause 95 should be omitted in favour of a clause to read somewhat as follows:-
Any law or regulation of commerce or trade made by the Commonwealth, or by any state, giving a preference
to one state or any part thereof over another state, or any part thereof, shall be null and void.
I think that that would be rather in accord with the view the honorable member has put.
Mr. ISAACS.-That raises a much larger question-that of railways.
Mr. BARTON.-No doubt; and that is a matter that will have to be discussed. I express my anxiety that this
question should be the subject of some discussion, because it is of such supreme importance. Looking at it fairly,
my views are rather in favour of Mr. Isaacs' contention. There might be greater safety in adopting some provision
of the kind he suggests. We ought to be very chary about adopting any provision that would interfere with any
internal regulations that do not pertain to trade and commerce. The regulation of trade or commerce specified in
subsection (1) of clause 52 is with foreign countries, and among the several states. It is therefore defined in the
first subsection as inter-state commerce. The question is whether we should consent to a form of words
remaining in this clause which might have the effect of extending the operation of inter-state commerce to
matters of internal regulation within a state which might be, in one sense, inimical or in derogation of free-trade
as practised in that state, but which it is not the purpose of the Constitution to interfere with. Matters of internal
regulation of trade, as long as they do not necessarily affect the commerce between one state and another, are
entirely under the cognisance of that particular state, and it is not the purpose of any Federal Constitution to
interfere with trade of that character. If we once grasp that fact, the contention of my honorable and learned
friend is again strengthened. I leave the matter now to be discussed, and I am perfectly prepared to accept the
general sense of the Convention. My inclination is in favour of Mr. Isaacs' view.
Dr. QUICK (Victoria).-I am very glad to hear the tone in which the leader of the Convention received the
observations of my honorable friend (Mr. Isaacs), because, like himself, I have been considering these words
since the Adelaide meeting of the Convention. The more I consider them the greater weight I feel disposed to
attach to the honorable member's criticism. In order to express what is really intended, it would be better to use
the words "between the states" instead of the words "throughout the Commonwealth." The latter words seem to
be sufficiently comprehensive to include every locality within the Commonwealth, and they might be construed
to include a prohibition of auctioneers' and pedlars' licences. I am sure that no such thing is intended. Whilst we
are anxious to provide for absolute freedom of trade on the frontiers between the colonies, there is no desire to
interfere with the local regulation of trade once the packager, of goods, wares, and merchandise have arrived
within the state territory. It would certainly be inimical to the success of this Constitution [start page 1017] if an
impression got abroad that there was to be any prohibition of local regulations, such as auctioneers' and pedlars'
licences. These are reasonable regulations of trade upon the arrival of goods, wares, and merchandise within the
state territories.
Mr. MCMILLAN.-Is not the other expression more comprehensive?
Dr. QUICK.-It is too comprehensive. It follows the packages beyond the frontier. What you want to secure is
free passage across the frontier.
Mr. BARTON.-Free passage across the frontier and freedom from all preferences.
Dr. QUICK.-Yes; freedom from all preferences or obstructions. The danger is that the words "throughout the
Commonwealth" would attach restrictions or disabilities to the local authorities. The words "between the states"
seem to give expression to what is intended. We should not leave room for doubt hereafter. I therefore support
the suggestion made by the Attorney-General of Victoria, and I am pleased to notice the tone in which it has been
received by the leader of the Convention.
Mr. GLYNN (South Australia).-I desire to call attention to the fact that in Canada the provision is "the
regulation of trade and commerce." That comes closer to the spirit of clause 89, and it appears in the section in
the Canadian Act which corresponds with clause 52 in this Bill.
Mr. BARTON.-Clause 52 says, the regulation of trade and commerce with foreign countries and among the
several states.
Mr. GLYNN.-The Canadian Constitution stops short at the word "commerce," and may mean any part of the
Dominion of Canada. In Wheeler's book on the Confederation of Canada a number of decisions are given as to
the effect of this provision. One of them was that a local licence which amounted to prohibition of trade was
illegal. That throws considerable light on the meaning of clause 89 in our Bill. In America the provision applies
to the regulation of trade between the various states, and under that it was held that it was quite competent for a
state to make trade regulations between the different parts of its own territory. It we fall back on the American
system, we may put it in the power of one colony to, grant trade concessions that may derogate from the freedom
of trade between the various states. As between one part of New South Wales and another, concessions might be
granted on traffic, although the goods did not cross the border. These concessions would have the same effect as
if they extended beyond the border, because they might apply over a considerable distance, and only cease at a
point within 2 or 3 miles from the border.
Mr. OCONNOR (New South Wales).-I think that the object of this clause is clearly only to infer that there
shall be no duties of customs, or charges of that character, upon the transit of goods from one state to another. I
do not think it means anything more than that. I quite agree with the criticisms of Mr. Isaacs as to the generality
of the clause. I have read the valuable criticism of Sir Samuel Griffith, and it appears to me that we might very
well adopt something in the nature of his suggestion as to defining the meaning of this sub-section. That is, we
might use some such words as "the free course of trade and commerce between different parts of the
Commonwealth is not to be restricted or interfered with by any taxes, charges, or imposts."
And
Sir JOHN DOWNER.-I cannot foresee. I cannot pretend to have the gift of prescience which would
enable me to know how ultimately a coach and four may be driven through this Constitution. But I say let
those who want limitations propose their insertion in the Bill. I would prefer to leave the main enactment in this
clause exactly as it stands. It may be that the words of Sir Samuel Griffith represent all he can think of. Perhaps
they may represent all that can be wanted at any time; but it is just possible that something may be omitted from
them something which might derogate from this freedom of trade which we intend to have throughout the
Commonwealth, Then, I ask honorable members to consider this: Although the clause says that trade and
intercourse throughout the Commonwealth shall be absolutely free, you have to look through this
Constitution at the other provisions, which show clearly what is the intention. This is a broad central
declaration; the rest you gather from a perusal of other provisions of the Bill. I think the fears of Mr. Isaacs in the
particulars he mentioned are not well founded.
Mr. HIGGINS.-There was no occasion for this clause in the Constitution of the United States.
Sir JOHN DOWNER.-No; but many times during the discussion of this Bill we have been referred to this
clause as being a strong clause-a clause strengthening this Constitution as compared with the Constitution of the
United States. Because it is in this Constitution, and it is not contained in the Constitution of the United States,
this clause has been referred [start page 1019] to over and over again as one of the broad declarations clearly
made in this Constitution, but which has got to be inferred from the Constitution of the United States. It is a
broad declaration that was necessary for the foundation of the Bill, and which makes any superstructure
that may be built upon it absolutely safe and secure. I hope that, on consideration, this clause will be allowed
to stand as it is. If limitations are necessary, let them be put in as limitations, but let the broad declaration in this
clause remain.
Mr. DEAKIN (Victoria).-I think it is fortunate that we have had the advantage of hearing one of the legal
members of the Convention say all that possibly can be said in support of the terminology of this clause.
The vagueness of the reasons offered by the honorable member who has objected to the proposed
amendment, on the ground that we do not know what may happen, should be noted. He is not able to point
to anything that would happen which would not be met by the proposed amendment. It is ample to meet
the case. Perhaps the honorable member was not present when the leader of the Convention called attention to
the fact-and it appeared to me a final answer to all his objections-that this clause requires to be read with clause
95, and that, taken together, they afford complete protection against any possible interference with freedom of
trade and intercourse. Clause 95 puts an absolute prohibition on anti-federal action by any state, and might be
considered in itself ample for all requirements. It sets forth that-
Any law or regulation made by the Commonwealth, or by any state, or by any authority constituted by
the Commonwealth, or by any state, having the effect of derogating from freedom of trade or commerce
between the different parts of the Commonwealth shall be null and void.
That in itself, it appears to me, is ample for all requirements. At the same time, to meet the view, which the
honorable member very reasonably expressed, that in this Constitution we should put beyond all doubt a
prohibition that is a matter of inference and construction in the American Constitution, we add, in addition to
clause 95, this provision. With the verbal amendment suggested nothing is withdrawn from the force and
efficacy of the clause as it stands. This clause will put beyond all question the determination of this
Convention, and of the future Constitution, that trade and intercourse in all parts of this Commonwealth
shall be absolutely free. And that end being attained by the amendment, what need have we to go beyond
that, as evidently we do, by using words in this connexion which elsewhere in the Bill are used with a wider
jurisdiction? Why use a vague expression which may possibly seriously interfere with state administration
in some minor departments, which have been up to now, and always will be, expressly left to the states?
And
Dr. COCKBURN (South Australia).-Quite apart from the question of trade between state and state, is it not
necessary that the Commonwealth itself should have some power for the restriction and the regulation of trade?

The words "absolutely free" are infinite in their application, and they seem to me to take away from the
Commonwealth the power to restrict and regulate trade within the confines of the Commonwealth.
Mr. DEAKIN.-We are not at those words yet; we are considering the words throughout the Commonwealth."
Dr. COCKBURN.-But the whole clause is before the committee, and it goes a great deal further than any of its
advocates clearly intend. I support the remarks of Mr. Isaacs in urging that some such limitation should be
inserted, not only with the view of seeing that the clause goes no further than is desirable in the restriction of the
states, but also in order that it shall not tie the hands of the Commonwealth itself, but shall allow it to impose
such restrictions and regulations of trade throughout the Commonwealth as may, from time to time, in the
interests of the people, appear to be necessary.
Mr. BARTON (New South Wales).-In answer to my right honorable friend (Sir Edward Braddon), I have no
hesitation in expressing my opinion. I thought I had expressed it clearly before. There is at any rate the
possibility, even taking this clause with other parts of the Bill, that it might be so read as to interfere with a
state's own right of regulating that kind of internal trade which is quite unconnected with interstate
commerce. It is for that reason that I thought there was so much force in the remarks of Mr. Isaacs. I
should not like to be taken to concur in any suggestion that it is intended that there shall be any power in
the Commonwealth to restrict trade in any part of the Commonwealth. I think it should be laid down in
terms which no Parliament can over-ride that there shall be absolute unrestricted trade between all parts
of the Commonwealth.
Mr. ISAACS.-Does the leader of the Convention propose to take the sense of the committee upon the
substance of the words-that the words "throughout the Commonwealth" be left out, and that the words "between
the states" be inserted-leaving it to the Drafting Committee to redraft the clause afterwards?
Mr. BARTON.-Yes; I will take the vote of the committee upon that matter.
The amendment suggested by the Legislative Assembly of Western Australia, to strike out the words
"throughout the Commonwealth" and to substitute the words "between the states" was agreed to.
While on the one hand the Framers were very concerned that laws enacted by the commonwealth
would be “throughout the Commonwealth” equally applicable on the other hand they also made
clear that other then directly relating to trade and commence they did not want the Commonwealth
to interfere with trading and commerce within a State. A similar approach has to be taken with
companies, that albeit the Commonwealth may legislate for the structure of companies, it is another
matter to purport constitutional powers being used within this as if companies legislative powers
can override the objection the Framers had for the Commonwealth to interfere with Industrial
disputed within the borders of one State.
It also ought to be noted that the Framers warn against the courts to interpret the constitution as to
the US constitutional framework, which they made clear they didn’t want to be applied. Yet, far too
often the High Court of Australia precisely does this!
Mr. BARTON.-No. If they find that a rate is deliberately fixed low, not for the mere purpose of internal
development, on the ordinary principle of diminishing the rate in proportion to the length of traction, but of
wrongfully preventing [start page 1251] inter-state commerce from taking its ordinary course, the allowance of
that rate is a matter which they can consider. A decision which says that they cannot interfere with a rate because
it is low is not a decision which abnegates their constant duty to prevent preferences between the states. I do not
think any decision can be found which will negative that view. Under the clause as it stands, the prohibition of
preferences extends only from the ports of one state to the ports of another state. If it is wrong to give a
preference to the ports of one state over the ports of another state, it is equally wrong to give a preference to a
part of a state over a part of another state. I have endeavoured to correct that anomaly. On the other hand, the
second part of the clause, making void any law or regulation made by the Commonwealth or by any state, or by
any authority constituted by the Commonwealth or by any state, having the effect of derogating from freedom of
trade or commerce between the different parts of the Commonwealth, may mean more than the Convention
intends. At the instance of the Hon. Mr. Isaacs we amended clause 89 to make it read that on the imposition of
uniform duties trade and commerce, whether by intercolonial carriage or ocean navigation, between the states
should be absolutely free. The words used before were "throughout the Commonwealth." What we desire to
protect is inter-state trade, and we recognise that the internal regulation of trade must be left in the hands
of the individual states. That is a principle on which we are agreed.
Mr. BARTON.-
I do not think we need go further than that, because the provisions of the Bill are ample to sufficiently
guarantee the rights of the states. Every state will have full control over its traffic, except to the extent that
it will not be able to usurp the powers of the Commonwealth in respect to trade and commerce. And are we
going to allow those powers to be usurped? That question, I am sure, would meet with a direct negative all round.
But if we go further and put in a limitation or proviso, we are simply increasing the power of a state to usurp that
power of regulating trade and commerce, which should be confined to the Parliament of the Commonwealth. For
it is only by that authority that trade and commerce can be kept free and equal. I suggest, therefore, that the
amendment which I have outlined may be placed in this Bill. Sir John Downer agrees with me that the trade and
commerce clause is quite sufficient for the purpose, but he would insert a few words to inform the public. I meet
that argument again by asking whether it is not a danger to insert such words when they may alter the entire legal
construction of the Constitution? I suggest simply inserting such a provision as I have suggested to prevent the
Commonwealth from dealing by way of preference with any state or part of a state, and that we should leave the
Constitution in that respect in the same way as we have left it by saying that taxation shall be uniform and equal
throughout the Commonwealth.
Mr. GORDON (South Australia).-I think the best argument we could have for inserting in the Bill what my
honorable and learned friend calls a placard is supplied by the long and legal speech which he has just delivered
to show us that it is not necessary.
[start page 1325]
Mr. BARTON.-My speech was not so long as that of the honorable and learned member.
Mr. GORDON.-Then I will call it a little more laboured.
Mr. BARTON.-Everything is easy to my honorable friend.
Mr. GORDON.-I think that the honorable and learned member has shut his eyes to the fact that the
circumstances of these colonies, so far as the railways are concerned, are different from the circumstances of the
American colonies when they federated.
Mr. BARTON.-Perhaps my honorable and learned friend would prefer to answer me after the tea
adjournment.
And
Mr. TRENWITH.-Well, we are a present fighting as independent states. That is to say, we are doing our best
for our respective states-for the states we have the responsibility of managing. We are not at present united. But
we are actuated by the federal spirit, and claim that immense advantages will come from the adoption of free and
unfettered intercourse between the various states of the Commonwealth. Can any one say [start page 1346]
that we have unfettered intercourse when you allow all the resources of a powerful state to be devoted to
attracting some of the trade within the Commonwealth from some particular point to which that trade
would otherwise go? If we are to have it, we must be permitted to have it on fair and equal terms. We
must not be expected to be content to juggle with the terms "differential" and "preferential." We will not
be content to see the interference with trade by one system of rates permitted simply because those rates
are called differential, and do not apply specially to traffic coming from beyond the boundary of a colony,
and a similar kind of interference prohibited because it is brought about by rates termed "preferential."
The above quoted reasoning would make no sense at all if the Framers of the Constitution
purportedly had intended to give unlimited powers to the Commonwealth of Australia in regard of
subsection 51(xx), however, as can be noticed it was made clear that the subsection was to be
considered with other provisions of the Constitution.

Sub-section XV.-Banking, the incorporation of banks, and the issue of paper money.
Mr. ISAACS: Anticipating another subsection, I notice that insurance, including State insurance, is to be dealt
with by the federal authority. As regards banking, I believe in South Australia there is a State bank. It will be a
question to seriously consider whether the Commonwealth is to deal with purely private banks, and not State
banks. I understand that it is intended to have uniformity of legislation in banking matters throughout the whole
of the Commonwealth, that financial institutions shall know exactly what laws they have to comply with, and
that the laws shall apply equally over the various parts of the Commonwealth. But where a State Bank carries on
business purely in its own State, I desire to know why that should come under the operation of the
Commonwealth?
Dr. COCKBURN: I am glad that this matter has been called attention to. It is a very serious one to those
colonies which want to go ahead.
Mr. GLYNN: How is that?
Dr. COCKBURN: Because the federal authority may take the power out of the hands of a State to carry on the
business of banking. This would be a concurrent power, and in its exercise in such a matter as the issue of notes,
for instance, it would be very easy for the Federal Parliament by implication to compel any State to discontinue
it. It [start page 779] might also explicitly forbid the States to undertake it. A hostile majority in the Federal
Parliament, which might be Conservative, might readily do this. The exercise of concurrent powers is a difficult
question in a Federation. We should carefully scrutinise this power before giving it over to the federal authority.
Sub-section as read agreed to.
Sub-section XVI.-Insurance, including State insurance extending beyond the limits of the State concerned.
Mr. HIGGINS: I desire to understand whether by the word "State" here is meant a particular colony, or is it
used in the general sense-the State as distinct from the individual? I apprehend that the word "State" means a
particular colony, but I confess I do not understand the meaning of the term.
Mr. O'CONNOR: This is a new subsection. It proposes to include insurance, and I think it is a very desirable
inclusion amongst the list of powers. However, it involves a principle. The part the hon. member referred to is
for this purpose: It was suggested that colonies might undertake State insurance, as was done in New Zealand,
and it was held that State insurance should not come under the general laws. From that view I entirely dissent;
but this clause was drawn in accordance with the views of the Constitutional Committee. The hon. member will
see, therefore, that the words "State insurance" simply indicate that whereas a State within its own boundaries
should have control of all its insurance business, and the regulation of its insurance under any State
system, so far as it deals with the people within its own boundaries, any part of its system that proposes to deal
with people beyond its boundaries should come under the general laws. "State" is used to designate colony. I
should support the hon. member if be moved to strike out:
Including State insurance extending beyond the limits of the State concerned.
Mr. ISAACS: It would include all insurance then?
Mr. O'CONNOR: Yes; and I think it ought to. If a State chooses to go into the business of insurance-I do not
say it is wise or not-I do not see why any departure should be made as to the uniformity of laws with regard to
insurance. The State should be subject to the same limitations as the individual if it goes in for State insurance. It
would be absurd to say it should not. Supposing every State adopted a system of State insurance, according
to this exception each State would be able to adopt a different method, so long as it kept within its own
boundaries, and you might have five different Systems of insurance outside the general law.
Mr. ISAACS: Is that not States rights?

Mr. O'CONNOR: No; because you start with the proposition that general insurance laws must be the
same throughout the colonies.
Again;
Supposing every State adopted a system of State insurance, according to this exception each State would
be able to adopt a different method, so long as it kept within its own boundaries, and you might have five
different Systems of insurance outside the general law.
And
No; because you start with the proposition that general insurance laws must be the same throughout the
colonies.
This clearly indicates that when the Framers of the Constitution were referring to state insurance (as
they did with banking, corporations, etc) they were referring to having the same
“system”/”method” as to the operation of insurance (banking/corporation and not at all as to, so to
say, “bolts and nuts” of workers being employed.
Now, if the High Court of Australia persist in that Subsection 51(xx) did in fact give all the powers
to the Commonwealth of Australia to dictate under corporation laws what can or cannot be done,
then it would clearly have also all the powers to dictate if Sunday newspapers could be published or
not, irrespective of any religion, as the State law for so far it would prohibit it would be subordinate
to Commonwealth legislation. Then the Framers of the Constitution must be deemed to have not
known what they were doing and perhaps they had done better to first seek the counsel of the judges
now at the High Court of Australia as they appear to know better what the Framers of the
Constitution intended. Otherwise, it must be accepted that the High Court of Australia made one
gigantic blunder in regard of subsection 51(xx) and should restore this matter and basically send the
14-11-2006 judgment, so to say, to the scrap heap.
As the Framers of the Constitution made clear any religious conduct that was unacceptable to
society could be dealt with under criminal law of a State.
We also find that the Framers of the Constitution make clear, time and again, that the Constitution
is different then that of the US Constitution, as such any judgment pertaining the US Constitution
may not necessary be applicable to the Australian Constitution. Yet, we find that John Howard is
stirring religious controversy such as seeking to incite Muslims to turn against another Muslim
because of comment the man made which John Howard seem to disapprove off.
Well, this “Muslim-phobia” (for the record I do not practice a religion and as such not to be seen as
a religious bias statement) should be stopped as the Framers of the Constitution made it very clear
that if a man is in breach of law then the ordinary Courts will deal with the matter. The fact that
John Howard perhaps might take it personally that someone may question the honesty of certain
people, and considering that the term “lying rodent” came from his own party member and fellow
Minister Senator Brandis then why on earth should a person using FREEDOM OF SPEECH be
used as to ster religious divisions whereas the murderous conduct of an unconstitutional invasion
somehow is not worthy to be dealt with.
In my view, we lack appropriately trained constitutional lawyers who can competently comprehend
certain constitutional powers and limitations, and so we lack properly trained constitutional judges
(including judges sitting at the bench of the High Court of Australia), and by this it all has become
an utter mess.
Hansard 16-9-1897 Constitution Convention Debates (Official Record of the Debates of the
National Australasian Convention) (Chapter 33 of the CD)
The service and execution throughout the commonwealth of the civil and criminal
process and judgments of the courts of the states,
Not that there is a different kind of law enforcement pending if a person is deemed to be unlawfully
in the Commonwealth of Australia, regardless if the person is or isn’t!
The Hon. R.E. O'CONNOR: A territory would be either a state of the commonwealth, or another
country!
The Hon. I.A. ISAACS: The word "country" might mean an independent state.
The Hon. E. BARTON: I will keep the matter in mind, though I fancy it is all right!
We also have to consider the error the High Court of Australia made in regard of Aboriginals and
how the Framers of the Constitution appeared to me to be blamed for denying them equal rights.
Just look at the con-job of the 1967 referendum that was arguable to give Aboriginals equal rights.
If one were to consider Kartinyeri v The Commonwealth [1998] HCA 22 (1 April 1998) then the
High Court of Australia appears to set out that the original version of the Commonwealth of
Australia Constitution (prior 1967 referendum) was bias against Aboriginals.
If anything, this just shows the failure of the judges to understand what the Constitution really
stands for! Sure, the Commonwealth passed in 1909 a law for “white only” electors arguing that
Section 30 of the Commonwealth of Australia Constitution gave that right, and the High Court of
Australia approved this and also later argued that Section 41 of the Constitution no longer was a
valid section as the people that were alive at the time of federation had died long ago and so the
application of this section 41, the truth is that again the High Court of Australia was giving utter and
sheer nonsense.
The Framers made clear that section 30 of the Constitution would be subject to Section 41!
Further, lets see what Barton stated at the closure of the Constitutional Convention!
Mr. BARTON.-
This Bill also contains a provision in favour of electors, which is altogether absent from the Bill of 1891; that is,
a provision for the protection of the voting right, when the right has been granted, so that no adult person who,
at the establishment of this Constitution, or [start page 2468] at any time afterwards, acquires the right to
vote for the Legislative Assembly in his own colony or state can be deprived of that right by any law
passed by the Federal Parliament.
Did you notice the wording “or at any time afterwards, acquires the right to vote”
The Framers made all along clear that the Commonwealth would have no constitutional powers to
deny a elector of a State the political rights to vote in a federal election! As such, the right of
Aboriginals qualified to vote in State elections were secured! Now have a look at the application of
subsection 51(xxvi) by any kind of legislation in regard of Aboriginals since the 1967 referendum;
Mr. BARTON.-No, but the definition of "citizen" as a natural-born or naturalized subject of the Queen is co-
extensive with the ordinary definition of a subject or citizen in America. The moment be is under any disability
imposed by the Parliament be loses his rights.
Dr. QUICK.-That refers to special races.
Mr. BARTON.-But if he is under any disability under any regulation of the [start page 1787] Commonwealth
he would cease to be a citizen, however slight that disability might be. I doubt whether the honorable member
intends that. There is power by law to regulate the people of any race requiring special laws. There may be some
purely regulative law passed, not imposing any special restriction on any person of that kind who may be a
subject of the Queen. That regulation, if it were of the mildest character, under this definition, would deprive him
of his rights.
Dr. QUICK.-The regulation would have to specify the ground of disability.

Mr. BARTON.-Yes; but my honorable friend says not under any disability imposed by the Parliament. Would
not the difficulty be that if he were under any slight disability for regulative purposes, all his rights of citizenship
under the Commonwealth would be lost?
What is clear is, that the Aboriginals and so neither the entire electorate of the Commonwealth were
ever advised that any legislation in relation to Aboriginals would cause the loss of their citizenship!
So their political rights to be an elector to be a Member of Parliament!
It might be stated that subsection 51(xxvi) was intended to “alien” “coloured race”, as to control
their doings, such as chines gold mining in Victoria, the Afghans selling in Tasmania, etc, but then
the Commonwealth could only make laws applicable to the entire Commonwealth, not for a
particular State. What the Framers did, was referring to nationalities and upon that basis inserted
subsection 51(xxvi) of “race” and referring to nationalities as being a race! Afghans clearly is a
nationality identification, not a race. To the Framers, the identification of a nationality was refereed
to as being a “race”. Albeit, when dealing with Aboriginals, they sought to avoid this confusion by
excluding them of subsection 51(xxvi) as well as to protect the Aboriginal rights to be considered
equally as other Australians. Not at all what Latham CJ purported to make out of it as referred to
above. Extensive reading does indicate that the Framers had misconceptions about what a “race”
stood for. It referred to “Chinese”, even those born in Australia and having Australian nationality, to
be “Chinese”. However, if it were to have related to a Chinese national that was “Caucasian” then
the Framers clearly didn’t seem to apply this, as the body of their debates seem to indicate. They
had this “white only” racist attitude in general and as such their references were to Afghans and
Chinese but to “coloured race’s, which signify that they were basically against “coloured races”
not a particular nationality, albeit they generally referred to this. What was achieved with the 1967
referendum was that it removed the protection of Aboriginals, and caused more harm then good, as
set out in my books. Still, the problem existing is that “technically” Aboriginals lost the right of
citizenship, so their political rights! The Commonwealth has no constitutional powers to grand State
citizenship, or to interfere with it, but could in effect deny Australian citizenship by invoking any
legislation within subsection 51(xxvi) for any matter, as it then would cause AUTOMATICALLY
the lost of Australian citizenship.
It ought to be clear that Australian citizenship has got nothing to do with Australian nationality or
with naturalization. This to has been set out considerable before the High Court of Australia. The
Framers made clear that unlike the USA version, they didn’t want to follow as the Commonwealth
would have no constitutional powers to define/declare citizenship!
Kartinyeri v The Commonwealth [1998] HCA 22 (1 April 1998)

1. Paragraph (xxvi), in its original form, should be understood in the context of attitudes to race and to "White
Australia" which were common amongst the settlers represented in the Conventions and constituting the
electors of the federating colonies. In the original draft Constitution Bill of 1891, the proposal was for a grant
of exclusive legislative power to the Federal Parliament with respect to[220]:
"The affairs of people of any race with respect to whom it is deemed necessary to make
special laws not applicable to the general community; but so that this power shall not extend
to authorise legislation with respect to the aboriginal native race in Australia and the Maori
race in New Zealand".
There is uncertainty as to the initial purpose of including this power and proposing that it be exclusive to the
Federal Parliament. The provision was Sir Samuel Griffith's idea[221], and it has been suggested[222] that it
was based upon the unhappy experiences of Queensland with "blackbirding". This was the practice by which
people from the Pacific Islands had been snatched from their homes and sold into a form of slavery in the
Queensland sugar farms. Whether its inclusion was out of a concern for the victims of such activities, a desire
to exclude the States from control over them or to provide the Federal Parliament with powers, in addition to
the proposed power over aliens, to deal with possible unrest and expulsion, is not entirely clear. The
Convention Debates, particularly those of the Melbourne Convention of 1898, show that some delegates
wanted to retain power for the States, and to permit the Federal Parliament to enact, laws far from beneficial
for people of minority races (such as Chinese in factories and shops[223], "Asiatic or African ... miner[s]"[224]
and so on). However, other delegates regarded the prospect of discriminatory legislation on the part of the new
federal polity as "disgraceful"[225] and "degrading to us and our citizenship"[226].
2. As finally adopted, the power in par (xxvi) was not restricted, in terms, to securing the benefit or advancement
of the people of a given race. In the historical context of that time such protective purposes would have been
possible, eg in the case of the "kanakas" in Queensland. But so also would laws detrimental to, or
discriminatory against, such people. The exclusion from the paragraph of power with respect to "the aboriginal
race in any State" appears principally to have been designed to leave their regulation to the States. It may have
had the effect of protecting them from any risk of the misuse of the race power by the new Federal
Parliament[227]. This view of the exclusion of Aboriginals from the power was to recur in the Parliamentary
debates leading to the amendment of the Constitution in 1967.
Moves to enlarge federal powers for Aboriginals
3. Before 1967, there was one earlier proposal to afford power to the Parliament to legislate with respect to
Aboriginals. Such a power was included in the 1944 "fourteen powers proposal"[228]. It failed to secure the
approval of the electors at referendum.
4. In 1959 a Constitutional Review Committee was established by the Parliament. One of the issues it considered
was whether the Federal Parliament should have an express power to make laws with respect to Aboriginals.
The Committee recommended the deletion of s 127 of the Constitution[229]. That section provided that
"In reckoning the numbers of the people of the Commonwealth, or of a State or other part of
the Commonwealth, aboriginal natives shall not be counted."
However, the Committee reached no agreement on the grant of special legislative powers with respect to
Aboriginals[230]. In the result, a large number of petitions were presented to the Federal Parliament urging the
deletion of s 127 and the amendment of par (xxvi)[231]. Whatever the original intention of these constitutional
provisions, and whatever may have been the initial protective effect of the exclusion of people of the
Aboriginal race from the race power, by the late 1950s, both in and out of the Federal Parliament,
commentators were viewing ss 51(xxvi) and 127 (containing as they did the only references to Australian
Aboriginals in the Constitution) as negative and discriminatory, needing amendment.
5. In 1964, the Leader of the Opposition (Mr Calwell) introduced a measure for the alteration of the Constitution
to remove the exclusion of Aboriginals from par (xxvi) and to delete s 127[232]. He called attention to
possible United Nations criticism that the Constitution was "discriminating against" the Aboriginal
people[233]. The Federal Attorney-General (Mr Snedden) affirmed that all parliamentarians felt that "there
should be no discrimination against aboriginal natives of Australia"[234]. He warned that the proposed
change to par (xxvi) created the potential for "discrimination ... whether for or against the aborigines"[235], in
response to which Mr Calwell affirmed his view that the amendment would only be beneficial for Aboriginal
Australians[236]. The Bill was ultimately defeated.
6. In 1965, the Government introduced the Constitution Alteration (Repeal of Section 127) Bill 1965 (Cth). The
Prime Minister (Sir Robert Menzies) justified the exclusion of any amendment to par (xxvi) on the ground
that to include the Aboriginal people in the race power would not be in their best interests[237].
However, although the Bill was passed by both Houses, the Government decided not to put it to referendum.
7. In March 1966, Mr W C Wentworth (later the first Australian Minister for Aboriginal Affairs[238]) introduced
a Private Member's Bill[239] to amend the Constitution to substitute for the race power in par (xxvi) a new
provision[240]:
"The advancement of the aboriginal natives of the Commonwealth of Australia".

Mr Wentworth also proposed a new s 117A of the Constitution. This would forbid the Commonwealth
and the States from making or maintaining any law which subjected any person born or naturalised
within the Commonwealth "to any discrimination or disability within the Commonwealth by reason of
his racial origin". The proposal contained a proviso that the section should not operate "so as to preclude the
making of laws for the specific benefit of the aboriginal natives of the Commonwealth of Australia"[241]. One
of the reasons given by Mr Wentworth for his amendments was his concern that the deletion of the
exclusion of people of the Aboriginal race from par (xxvi) could leave them open to "discrimination ...
adverse or favourable". He suggested that the "power for favourable discrimination" was needed; but that
there should not be a "power for unfavourable discrimination"[242]. His Bill was supported by the
Opposition[243], but it ultimately lapsed[244].
The 1967 referendum
8. Instead, on 1 March 1967, a new Prime Minister (Mr Holt) introduced the Constitution Alteration
(Aboriginals) Bill 1967 (Cth). He explained that the government had been influenced by the "popular
impression" that the words "other than the aboriginal race in any State" in par (xxvi) "are
discriminatory"[245]. This was a view which the government believed to be erroneous. But it was deeply
rooted. It required amendment of the Constitution in a way that would give the Parliament the power to make
special laws for Aboriginals which, with cooperation with the States, would "secure the widest measure of
agreement with respect to Aboriginal a dvancement"[246].

9. The Government's Bill was supported by the Leader of the Opposition (Mr Whitlam). He referred to the many
disadvantages which Australian Aboriginals had suffered and which needed positive federal initiatives[247]. It
was also supported by Mr Wentworth. He expressed the opinion that some discrimination was necessary in
relation to Aboriginals but "it should be favourable, not unfavourable"[248]. The Bill passed through the
House of Representatives without a single dissenting vote[249].
10. In the Senate, the Minister responsible for the Bill (Senator Henty) repeated what had been said by the Prime
Minister[250]. The Leader of the Opposition in the Senate, Senator Murphy, met directly the argument that the
exclusion of Aboriginals from par (xxvi) had been intended to be beneficial for them. He said[251]:
"The simple fact is that they are different from other persons and that they do need
special laws. They themselves believe that they need special laws. In this proposed law
there is no suggestion of any intended discrimination in respect of Aboriginals except a
discrimination in their favour."
The Bill was also approved by the Senate without a single dissenting vote[252].
11. There having been no opposition within the Parliament to the proposed alterations to the Constitution, it was
necessary, in the procedures which followed, to prepare only the argument in favour of the proposed law to be
distributed in pamphlet form to the electors[253]. The case for the "yes" vote authorised by the Prime Minister,
the Leader of the Australian Country Party and the Leader of the Opposition addressed the amendments to
par (xxvi) and s 127 which were to be put before the electors as a single proposal. The case, relevantly,
argued[254]:
"The purposes of these proposed amendments ... are to remove any ground for the
belief that, as at present worded, the Constitution discriminates in some ways against
people of the Aboriginal race, and, at the same time, to make it possible for the
Commonwealth Parliament to make special laws for the people of the Aboriginal race,
wherever they may live, if the Commonwealth Parliament considers this desirable or
necessary. ... The Commonwealth's object will be to co-operate with the States to
ensure that together we act in the best interests of the Aboriginal people of Australia".
In relation to the proposed amendment to s 127, the written case said[255]:
"Our personal sense of justice, our commonsense, and our international reputation in a
world in which racial issues are being highlighted every day, require that we get rid of
this out-moded provision ... The simple truth is that Section 127 is completely out of
harmony with our national attitudes and modern thinking. It has no place in our
Constitution in this age."
12. In addition to the foregoing statutory argument the leaders of all of the major Australian political parties issued
statements supporting the amendment to par (xxvi) and the repeal of s 127. The Prime Minister (Mr Holt), in
his statement said that it was not acceptable to the Australian people that the national Parliament "should not
have power to make special laws for the people of the Aboriginal race, where that is in their best
interests"[256]. For the Federal Opposition, Mr Whitlam stated that the then provisions of the Constitution
were "discriminatory". He pointed out the need to assist Aboriginal communities in the realms of housing,
education and health, and stated that the Commonwealth must "accept that responsibility on behalf of
Aboriginals". It was also vital, he argued, to remove the excuse "for Australia's failure to adopt many
international conventions affecting the welfare of Aborigines"[257]. For the Australian Country Party, its
Deputy Leader, Mr Anthony, explained that the amendment to the Constitution "would give the
Commonwealth Government, for the first time, power to make special laws for the benefit of the Aboriginal
people throughout Australia"[258]. For the Australian Democratic Labor Party, Senator Gair titled his
statement "End Discrimination - Vote 'Yes'" and explained that his Party had "adopted the slogan 'Vote Yes
for Aboriginal Rights'"[259]. There was not the slightest hint whatsoever in any of the substantial referendum
materials placed before this Court that what was proposed to the Australian electors was an amendment to the
Constitution to empower the Parliament to enact laws detrimental to, or discriminatory against, the people of
any race, still less the people of the Aboriginal race.
13. The referendum was put on 27 May 1967. It was overwhelmingly approved[260]. In the history of Australian
constitutional referenda, no other such vote has come close to the unique political and popular consensus
demonstrated in the 1967 referendum on Aborigines.
Arguments for the validity of the impugned law

14. The Commonwealth disputed the relevance of any of the foregoing history. In its submission, the meaning of
par (xxvi) had to be found exclusively on the face of the Constitution in the language in which it was
expressed. At most, the history explained the hopes and aspirations of the politicians and of the Australian
people. But these could no more control the meaning to be ascribed to the language of the Constitution than
could equivalent extrinsic materials determine the meaning of an ordinary statute[261]. Attention was drawn to
the contrast between Mr Wentworth's successive proposals and the amendments to the Constitution eventually
adopted. The Commonwealth argued that had it been the purpose of the Parliament legally to forbid legislation
detrimental to, or discriminatory against, Aboriginals, a group of Aboriginals or any other people on the
ground of race, the Wentworth proposals (or some variant of them) would have been adopted. But they were
not.
In addressing the arguments of the parties, it is essential to acknowledge the force of the submissions put for the
Commonwealth and the supporting interveners. They rested principally upon the language of the power
conferred by par (xxvi) and upon the ordinary rule that such language should not be given a narrow or limited
operation but one broad and large so as to meet all possible legislative eventualities. Historically, the power was
apparently intended, at the time of Federation, to extend to legislation detrimental to, and discriminatory against
the people of any race (other than the Aboriginal race). The deletion of the exception left, so it was argued, the
essential character of the power unchanged. Most readers of the Constitution would be unaware of the
Convention and Parliamentary debates. In time, few would be aware of the arguments at the 1967 referendum.
They would have before them only the head of power expressed in par (xxvi). The Commonwealth argued that,
even if contemporary and future readers chanced to study the historical material, they would find much in the
Conventions and some in the Parliamentary debates which was ambivalent. Particular statements could be found
which acknowledged the possibility that the race power might, perhaps rarely and exceptionally, be used to
support legislation detrimental to, or discriminatory against, a people (including, after amendment, Aboriginal
people) on the ground of their race.
What we have is that Subsection 51(xxvi) was intended to DISCRIMINATE against a “coloured
race” and as the Court itself acknowledged the intention in regard of Aboriginals was to make laws
in favour of Aboriginals.
Proper reading of the Hansard records of the Constitution Convention Debates shows that nothing
of the sort was intended by the Framers of the Constitution as to allow the commonwealth of
Australia to make laws to make laws to benefit a “coloured race” as in fact it was made clear that
legislation could NOT be against the “general community” which by the amendment would
eventuate. Again, not at all what Latham CJ purported to make out of it as referred to above.
Mr. BARTON.-
. If it is necessary to give the Federal Parliament power to make laws for their regulation, not applying to
the rest of the people of the Commonwealth,
The issue therefore is to ask, was at the time of the referendum the electors advised that to remove
the wording regarding aboriginals would alter the structure of the section and would allow the
Commonwealth of Australia to legislate against the “general community”? I doubt the referendum
would have been successful in that regard. Hence, it was a con-job referendum where, by the High
Court of Australia own quotation of the matters put to the electors did not in anyway whatsoever
refer to any change of application in regard of this Subsection in regard of other “coloured races”.
Hence, it could not be accepted that therefore this was intended by the electors. Neither was there
any part in the referendum put to them to seek the elector to vote to allow within this section
legislation to be made against the “general community”, and as such it cannot then be argued that
the Racial Discrimination Act 1975, against the “general community” is valid. We therefore have
that subsection 51(xxvi) was amended to remove the wording relating to Aboriginals and by this
allowed DISCRIMINATION against Aboriginals to occur and by this in the process they all lost
their citizenship.
It cannot be that somehow one subsection has different meaning pending as to which race it applies
to and neither can it be deemed that somehow the electors accepted discrimination against
themselves on a grand scale that they too were to be deprived of their citizenship and so their
franchise, as like anyone else and by this in effect all subjects of the Queen would be robbed of their
“citizenship” and so “franchise” and no one would be left to be eligible to vote and neither to be a
Member of Federal Parliament or for that any other Parliament.
Hence, in my view, despite that it might have been put to the voters in the referendum;
"The purposes of these proposed amendments ... are to remove any ground for the
belief that, as at present worded, the Constitution discriminates in some ways against
people of the Aboriginal race, and, at the same time, to make it possible for the
Commonwealth Parliament to make special laws for the people of the Aboriginal race,
wherever they may live, if the Commonwealth Parliament considers this desirable or
necessary. ... The Commonwealth's object will be to co-operate with the States to
ensure that together we act in the best interests of the Aboriginal people of Australia".
In relation to the proposed amendment to s 127, the written case said[255]:
"Our personal sense of justice, our commonsense, and our international reputation in a
world in which racial issues are being highlighted every day, require that we get rid of
this out-moded provision ... The simple truth is that Section 127 is completely out of
harmony with our national attitudes and modern thinking. It has no place in our
Constitution in this age."
In my view, the case to argue that Subsection 51(xxvi) discriminated against the Aboriginal race
was a falsehood. Subsection 51(xxvi) protected the Aboriginal race from being discriminated
against by the Commonwealth of Australia. It was a federal Constitution not a State constitution.
As to section 127, it had no application as to the right of franchise of Aboriginals, however should
have been, in my view, made a provision only to have been applicable for a few years after
federation to avoid financial ruin of States with large Aboriginal populations for the first few years
considering the application of quota’s then.
In my view, the amendment of subsection 51(xxvi) should have been placed before the people
outlining what was intended in the overall. Not that there was a gross deception to the true
intentions of the Federal Government as now appears to me to have eventuated.
In my view, it is unacceptable to accept that on the one hand the electors desired to advance the
cause for the Aboriginals and at the same time accepted that in return the Aboriginals as well as
themselves could be robbed of their citizenship and so their franchise. Indeed, no sane politician is,
so to say, cut his own throat to put himself in such manner out of a job. Hence, despite the question
pur to the electors, it cannot be deemed right that the Racial Discrimination Act 1975 was within
constitutional powers of the Commonwealth of Australia in that it was a law to discriminate on
behalf not just for Aboriginals but of any race against the general community! A discrimination in
reverse, beyond the ability of subsection 51(xxvi) to be applied considering the limited or narrow
view of the referendum.
I cannot accept that the United Nations somehow oppose the discrimination against Aboriginals but
would accept discrimination against Aboriginals as to them loosing then their citizenship and so
their franchise as well as anyone else of the “general community”.
This is the problem; when you have people seeking to tamper with constitutional provisions not
understanding what consequences there might flow from.
Albeit at the time a barrister sought my assistance (FREE OF CHARGE) to address the
constitutional issue regarding subsection 51(xxxvi) I had not had the benefit to read let alone to
consider what was stated in Kartinyeri v The Commonwealth [1998] HCA 22 (1 April 1998) I had
nevertheless given my views that subsection 51(xxvi) did not allow for any Hindmarsh Bridge to be
enacted in that it was not a law against a “coloured race” and would be harmful to Aboriginals who
were, say, residing in major cities whom had no connection with the building of the bridge yet
would still be robbed of their citizenship and so franchise because of the legislation.

I did not have at the time any material as to why subsection 51(xxvi) was amended, and having read
now the Kartinyeri v The Commonwealth [1998] HCA 22 (1 April 1998) judgment it does not alter
my original views one of iota.
No constitutional provision can have a double standard that it operates in regard of one race one
way and in regard of another race another way.
Whatever the ill conceived advise might have been from the UN it was immaterial, as I view it, as
the United Nations had no say as to the Constitution as was enacted in 1900. And, if anything, its
interference may very well have caused the misconception and the constitutional dilemma now
faced in regard of Aboriginals and so the rest of the population.
In my very successful case before the County Court of Victoria I did challenge also the validity of
the Racial Discrimination Act 1975 on constitutional grounds and this was also stated in the
Section 78B NOTICE OF CONSTITUTIONAL MATTERS and that upon this no person in the
“general community” and neither any Aboriginal had “citizenship” and so neither franchise.
My numerous constitutional grounds against various legislative provisions remained
UNCHALLENGED and hence for this I was not just successful in my cases but also had a legal
verdict to prove this.
In my view, the best option would be to have subsection 51(xxvi) restored to its original version
and then have a new subsection added that specifically refers to Aboriginals and for this also Torres
Strait Islanders and so as to make clear that the Aboriginal cause is different then that which might
be desired against other races. In my view, the entire subsection 51(xxvi) ought to be deleted but
that is my personal view and it not the issue as to what is constitutionally appropriate.
Mr. BARTON: It is only for the purpose of determining the quota.
Dr. COCKBURN: Is that perfectly clear? Even then, as a matter of principle, they ought not to be
deducted.
Mr. O'CONNOR: The amendment you have carried already preserves their votes.
The statement
The amendment you have carried already preserves their votes
Refers to Section 41 of the Constitution that already preserved the votes of any Aboriginal who at
the time of the federation had obtained State franchise as to be able to vote in federal elections.
And, at the time of federation Aboriginals who had (colonial) State franchise did vote in the first
federal election as even the Australian Electoral Commission now amidst to on its website.
Again
It is only for the purpose of determining the quota.
As such, it was not at all directed per se against Aboriginals to discriminate against them but it was
for financial purposes as otherwise the federation may not have eventuated had the States, such as
South Australia been heavily burdened to pay per capita to the newly formed Commonwealth of
Australia a levy. (Consider the breadwinners issue referred to above also)
The Hon. F.W. HOLDER: We do not want any such position. South Australia wants her own, if she can get
it. She is going to get as near to her own as she can; but she does not want one penny belonging to anyone else. I
think I may say the same for Tasmania. We all of us want our own, no more and no less. That being so, it is
apparent at once that neither £40 per head, nor any other amount per head, equal over the whole
commonwealth will do. You appear to wipe out the surplus, but you do not wipe it out at all. You simply
provide that there shall be a return equal per head over the whole population at once throughout the
commonwealth. Suppose it were proposed that at once a per capita distribution of the surplus should take place,
would that be accepted? Do not even the representatives of Tasmania themselves argue against the inequity of
such a proposal? Is it not apparent to us all, whatever may be possible in the future, that when things have settled
down, and the new tariff has been some years in operation, it is simply out of the question that we should begin
right away with an equal per capita distribution, which is what this scheme of taking over it certain proportion of
the debts amounts to if you go to bedrock in considering it.
Clause 120-In reckoning the numbers of the people of a State or other part of the Commonwealth aboriginal
natives shall not be counted.
Dr. COCKBURN: As a general principle I think this is quite right. But in this colony, and I suppose in
some of the other colonies, there are a number of natives who are on the rolls, and they ought not to be
debarred from voting.
Mr. DEAKIN: This only determines the number of your representatives, and the aboriginal population
is too small to affect that in the least degree.
Mr. BARTON: It is only for the purpose of determining the quota.
Dr. COCKBURN: Is that perfectly clear? Even then, as a matter of principle, they ought not to be
deducted.
Mr. O'CONNOR: The amendment you have carried already preserves their votes.
Dr. COCKBURN: I think these natives ought to be preserved as component parts in reckoning up the
people. I can point out one place where 100 or 200 of these aboriginals vote.
Mr. DEAKIN: Well, it will take 26,000 to affect one vote.
Mr. WALKER: I would point out to Dr. Cockburn that one point in connection with this matter is, that when
we come to divide the expenses of the Federal Government per capita, if he leaves out these aboriginals South
Australia will have so much the less to pay, whilst if they are counted South Australia will have so much the
more to pay.
This proves that Section 127 was not particularly against Aboriginals but was rather to reduce the
monies payable, such as in regard of South Australia, having a large population of Aboriginals.
Exercising constitutional powers just be appropriately applied. While I can accept for purpose of
law enforcement the Navy might detain a person or persons of an illegal fishing boat to be able to
transport the person to the nearest location to be handed over the appropriate State law enforcement
force, it cannot, as it did keep people in a unseaworthy boat of Ashmore island, regardless it was on
orders of John Howard, as this was unconstitutional and illegal detention and likewise the towing of
an unseaworthy boat away from safety was unconstitutional and illegal. It had nothing to do with
enforcing Commonwealth law relating to the defence forces but was to use armed forces in an
unconstitutional manner for political purposes. John Howard did not have any constitutional powers
to override constitutional embedded principles and neither to overrule State and Territorial laws that
requires that no unseaworthy boat is permitted to leave. Yet, I have yet to discover in any judgment
of the High Court of Australia condemnation upon John Howard and his cohorts to have acted in
flagrant disregard for constitutional and other legal provisions and having manipulated the defence
forces to carry out his political intentions to better himself in a purported federal election rather then
to uphold constitutional provisions and relevant laws.
Anyone who were to argue that because the USA declares war against another nation or simply go
out and murder people in their own country because their cowboy attitude of “shoot them up”
might be dictating their conduct then arguing that because of some ANZUS or other treaty then the
Commonwealth of Australia likewise can go to war disregarding constitutional requirement and
limitations in my view, so to say, has a screw loose. Then consider;

Re: COMMANDER CHRISTOPHER BOLTON, CAPTAIN H.M.A.S. "PENGUIN" AND THE HONOURABLE KIM
CHRISTIAN BEAZLEY, THE MINISTER OF STATE FOR DEFENCE Ex Parte DOUGLAS BEANE F.C. 87/012
High Court of Australia
The words of a
Minister must not be substituted for the text of the law. Particularly is
this so when the intention stated by the Minister but unexpressed in the law
is restrictive of the liberty of the individual. It is always possible that
through oversight or inadvertence the clear intention of the Parliament fails
to be translated into the text of the law. However unfortunate it may be when
that happens, the task of the Court remains clear. The function of the Court
is to give effect to the will of Parliament as expressed in the law.
Any officer of the

Commonwealth Executive who, without judicial warrant, purports to authorize or
enforce the detention in custody of another person is acting lawfully only to
the extent that his conduct is justified by clear statutory mandate.
12. In the absence of statutory provision to the contrary, a person in

Australia who has not breached Australian law is entitled to his freedom: see
Brown v. Lizars (1905) 2 CLR 837 at pp 851-852, 861 and 867-868 and Reg. v.
Governor of Brixton Prison; Ex parte Soblen (1963) 2 QB 243 at pp 299-302 and
306-307.
Lord Denning M.R. in Reg. v.

Governor of Brixton Prison; Ex parte Soblen (1963) 2 QB 243, at p 299, stated
the common law in terms which I would respectfully adopt:
" ... every person coming from abroad, as soon as he

sets foot lawfully in this country, is free; and,
so long as he commits no offence here, he is not to
be arrested or detained for any offence that he may
have committed in some other country. If any
attempt were made to arrest him in order to
surrender him to that other country, he would at
once be entitled to be set free. The writ of
habeas corpus is available to him for the purpose.
In the absence of an extradition treaty, it is no
answer for the Crown, or any officer of the Crown,
to say that he wishes to send him off to another
country to meet a charge there."
2. The laws relating to the return and deportation of prohibited immigrants

and the deportation of aliens and laws relating to extradition for trial on
criminal charges qualify the general freedom from arrest and surrender to
foreign authorities but, unless a provision of such an exceptional law
applies, the common law and the Habeas Corpus Act 1679 deny to the Executive
governments of this country, whatever inducement a foreign government may
offer or press, any power to arrest and surrender an Australian resident into
the custody of foreign authorities. Unless there be overriding statutory
authority for the arrest and surrender of an Australian resident, he is
entitled to a writ of habeas corpus to obtain his freedom here: Ex parte
Besset (1844) 6 QB 481 (115 ER 180). To justify such an arrest and surrender,
there must be a statute or subordinate legislation (Lloyd v. Wallach (1915) 20
CLR 299; Ex parte Walsh (1942) Arg LR 359) enacted in exercise of an available
legislative power (Australian Communist Party v. The Commonwealth (1951) 83
CLR 1, at p 195) which abrogates or suspends the right to habeas corpus: R v.
Clift; Ex parte P (1941) SASR 41, at p 46. The question in this case is
whether the prosecutor's right to a writ of habeas corpus has been abrogated,
in the particular circumstances of the case, by the provisions of Pt IXA of
the Defence Act 1903 (Cth) which were inserted by s.8 of the Defence Acts
Amendment Act 1981 (Cth) ("the 1981 Act") and which came into operation on 15
August 1983.
4. The law of this country is very jealous of any infringement of personal

liberty (Cox v. Hakes (1890) 15 App Cas 506, at p 527) and a statute or
statutory instrument which purports to impair a right to personal liberty is
interpreted, if possible, so as to respect that right: R. v. Cannon Row Police
Station (Inspector) (1922) 91 LJKB 98, at p 106.
See also;
CHU KHENG LIM AND OTHERS v. THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND
ETHNIC AFFAIRS AND ANOTHER (1992) 176 CLR 1 F.C. 92/051
There simply is no constitutional powers for the Federal Attorney-General to authorise Federal
Police, Immigration staff, ASIO or other federal officers to operate within the sovereignty of any
State in the manner as seems to be now occurring by unconstitutional legislation. It underlines the
need for an OFFICE OF THE GUARDIAN as the GUARDIAN OF THE CONSTITUTION, in
my view, it incompetent to do the job required, without the impartial source to assist in a better
understanding as to what constitutionally concepts, embedded principles, prohibitions, powers and
limitations stand for. (See also below about issue of the OFFICE OF THE GUARDIAN.)
* Gary, I am getting a bit confused here, and perhaps you can clarify this matter not just for me but
also for the reader.
**#** Off course, just what is the confusion about?
* Well, if the Commonwealth of Australia can pass legislation as to Aboriginals but can’t legislate
even so the referendum approved of laws to be made then how does this work?
**#** I will explain this. In Kartinyeri v The Commonwealth [1998] HCA 22 (1 April 1998) the
Court was faced with the building of a Bridge in the State of South Australia and not that of a
building of a bridge in Northern Territory.
* What is the difference besides geographically location?
**#** Well, South Australia is not a territory of the Commonwealth of Australia but a limited
sovereign State.
* Why “limited”?
**#** It is sovereign in regard of all legislative powers it retained but not sovereign in regard of
legislative powers that were transferred for purpose of federation, by referendums an and subject to
(that is if it was constitutionally valid) referrals of powers. It doesn’t matter if this deals with
Aboriginal matters, “Industrial Relations” or other matters as it remains to be in all legislative
powers incidents the same. So, the Commonwealth of Australia has legislative powers but only for
the “whole of the Commonwealth” for all matters governing ordinary legislative powers as
contained in the Constitution, such as those in Section 51, however there is a certain reservation to
this. Any legislative powers that have been referred by a State, or some but not all States are not
necessary legislative powers for the Commonwealth of Australia for the “whole of the
Commonwealth” and so are legislative powers the Commonwealth of Australia can use for only
those States which have referred the particular legislative powers to the Commonwealth of
Australia, have adopted it or where within Section 122 of the Constitution the Commonwealth of
Australia already had legislative powers. However, to make it more confusing, if in the end
legislation referred to the Commonwealth but was adopted by all other States and already applicable
in the Territories then it would become before Federal law of the kind that must be “for the whole
of the Commonwealth”. Where however the Commonwealth of Australia within Section 122
exercises quasi State powers (for so far they exist) then the Commonwealth is not bound to make
laws for the “whole of the Commonwealth” as it only relates to a specific Territory. As such a
bridge could have been build for Aboriginals in the Northern Territory within the Section 122
powers not because of having anything to do with Aboriginals but because of “sovereign” of the
Northern Territory. I am. So to say, gobblesmakked why all those politicians and lawyers went out
on a limb, so to say, to amend Subsection 51(xxvi) to remove the reference to “Aboriginals” as the
Commonwealth of Australia could have used its Section 96 powers to grand to the relevant State
monies which the State then within its own powers could have used for Aboriginal purposes. As
such, had the Commonwealth of Australia pursued to build the bridge in South Australia by
granting monies to the South Australia government for purpose to build a bridge, but not being
conditionally upon Aboriginals usage, as since the 1967 con-job referendum this no longer was
possible, then the bridge could have been build. That is if the State of Western Australia would have
desired to have it build in the first place.
* Does the same operated in regard of Industrial Relations, corporations matters, etc?
**#** No difference at all. The commonwealth of Australia as “sovereign of the Territories (on
behalf of the States) exercising powers could therefore regulate the way corporations are to be
registered. It then has its powers also to apart of the corporations powers legislate the working
conditions of those working in the Territory. It could in fact within Section 122 apply different
legislation to different Territories as each Territory is a “sovereign” area upon itself. It was for this
also that when John Howard proposed to sell of POINT NEPEAN, in the state of Victoria for
about 500 million dollars and Premier Steve Bracks offered a mere 74 million dollars I wrote to
John Howard , and forwarded a copy to Premier Steve Bracks, that the Commonwealth of Australia
could not sell the land comprising POINT NEPEAN to private developers unless it was prepared to
maintain POINT NEPEAN as a “TERRITORY” and have its own law enforcement, planning
legislation, building legislation, etc, etc, as State laws had been extinguished when POINT
NEPEAN became exclusive federal territory.
John Howard then subsequently announced that he would not sell the lands but would lease it. I
then pointed out that the Commonwealth of Australia could not lease the lands as it could only use
the land for the purposes for which it had acquired it or for other Federal purposes. It should be kept
in mind that it was never intended by the Framers of the Constitution that the Commonwealth of
Australia could be a competitor against the States, and so where there is any notion of competition
then the Commonwealth must fail.
* Moment, what about Section 109?
**#** That is not relevant as such, as the Commonwealth of Australia is bound to make laws for
the “peace, order, and good government” and it was not created to become a competitor against
the States but to represent the States in a unified manner.
* If I may ask, how do you establish competitive conduct by the Commonwealth of Australia?
**#** Well, take for example the usage of WOOMERA where it is leased out by the
Commonwealth of Australia to let Japan, The Netherlands, and many other countries use its
facilities to launch rockets, etc. This is in fact unconstitutional as the Commonwealth of Australia
acquired the land for Commonwealth purposes and not for other nations to exercise upon it. The
moment it leases out the territory for non-Commonwealth purposes then it is unconstitutional.
* How can it then be that they can lease out property in the Northern Territory?
**#** That is because that is a quasi State not at all obtained for Commonwealth purposes but it
was separated from South Australia and retained its own common law structure by this. Also.
Anyhow, the way it is that John Howard ended up not leasing it either, as I understand it, but
handed POINT NEPEAN back to the State of Victoria and paid about 5 million dollars for a clean
up. Steve Bracks having received a copy of my correspondence to John Howard subsequently
withdrew his 74 million dollar offer. People in Victoria then argued that he did a backflip, but they
were not aware that I had written in regard of the constitutional position if it all.
* Did anyone give you credit for this?
**#** No, neither did they do in the Queensland Court of criminal appeals when it basically word
for word quoted from my book INSPECTOIR-RIKATI® on CITIZENSHIP the reasons of
overturning the convictions of Pauline Hanson and David Ettridge, but then again neither do others
when they successfully win their cases. Liam McGill is a clear example in his paternity case where
in fact I was assisting him with his case but as soon as he won he was in the news claiming he had
done it all by himself. Well, when then he engaged a lawyer for the High Court of Australia case I
made clear he had done is himself, so he had claimed, then I wasn’t going to get involved.
* Out of spite?
**#** Nothing to do with that. The man lied to the people and claimed it as being his own work,
even so one of the judges during the case in fact referred to me that I had indeed sought to follow
the proper procedure and his former lawyer had wrongly advised him, and as such there can be no
doubt that I was assisting Liam McGill and the Court had recognised this itself. My issue is that he
was dishonest to claim the credit for himself. If he had not claimed for himself and left it
unanswered then it would, so to say, have been no skin of my nose, but I don’t like it when all the
hard work I have put into it is being claimed by others.
Likewise that with Pauline Hanson’s case I published on 1 December 2003 a book
INSPECTOR-RIKATI® on PLEASE EXPLAIN

A book on CD political and legal questions
ISBN 978-0-9751760-0-9 was ISBN 0-9751760-0-5
It contains copies of correspondences, such as of the Queensland Attorney-General admitting that

none of the issues I had raised were by any parties placed before the various courts, not even before
the High Court of Australia. As such, I viewed that Premier Peter Beatty (through the State’s
lawyers) had concealed from the High Court of Australia relevant details/information and the High
Court of Australia then refused the application, however because I managed to pass on material to
Pauline Hanson’s sister urging her to place it before the Court of Criminal Appeals it was so done
and the result was the appeals succeeded.
Anyhow getting back to the legislative powers, the Commonwealth of Australia therefore may or
may not have complete legislative powers depending upon how it is obtained and to what extend.
If only a few States refer (that is constitutionally validly so) legislative powers then the
Commonwealth of Australia is not legislating as under its “general legislative powers” but is
legislating as representing the “sovereign” of the particular State or States who have referred
legislative powers only, and as such can therefore legislate upon the reference of legislative powers
in regard of those States who referred the legislative powers and for those who adopted it in special
terms to those States provided it does not involve all States. This, as the moment referred powers
covers most States and all other States have adapted it then it is no longer an exclusive legislative
power but become an ordinary general power “for the whole of the Commonwealth”. As such,
every piece of legislation by the Commonwealth of Australia should really be identified under
which constitutional power it was enacted. It is absurd to expect the High Court of Australia to elicit
from the legislation under which heading it might fall. That is not what the purpose of the High
Court of Australia is for and to do so would make the Court not being the judicial arbitrator but
rather a political tool for the federal government to do its “dirty work” so to say, to find some way
to legally justify its legislation.
I recall a case one where I pursued an application in the Supreme Court of Victoria, and used the
former application of the opponent as a basis. The judge then pointed out that I could not succeed
under that particular heading and it made no difference if the opponent previously had done so. His
Honour made clear the onus was upon me to prove the Court had jurisdiction and so under which
heading. As I never had expected this kind of response, as I viewed then that if the other party could
use it then why could I not also, but I had to recognise that the Court in the circumstances acted
appropriately and could not invoke jurisdiction where it had none within that particular legislation I
relied upon and previously the opponent had relied upon.
* Are you meaning that it was for the Commonwealth of Australia to point out to the Court within
which Section it had enacted the legislation?
**#** That is correct, the onus was upon the Commonwealth of Australia to set out which part of
the legislation was under which constitutional legislative power.
* If I may about the industrial relations legislation how does this then work out?
**#** Well, the issue ought to have been what section fell under which heading of constitutional
powers. Instead of the judges guessing it the Commonwealth should have indicated so. For
example, it should have grouped the various sections which it deemed fell under corporations
powers, which it claimed fell under it “general legislative powers” “for the whole of the
commonwealth”, which fell under the heading of section 122 and which fell within the limited
referred legislative powers.
* Oei, that is some division there.
**#** Well, if the Commonwealth of Australia invoked legislative powers under its “general
legislative powers” within the provisions of subsection 51(xx) then it could not rely upon any allege
referral of powers for the State of Victoria or for that matter its legislative powers within section
122 of the Constitution as it was to be a general power. If however the legislation excluded Victoria
from the “general legislative powers” then it indicates it was not a “general legislative power” at all
under the heading of subsection 51(xx) but rather was purported to be so. You cannot have a
legislation used under the “general legislative powers” of any subsection not being applicable to
some State or Territory, as the moment you do so, being it because of referred legislative power,
then it no longer can qualify as being a general power within section 51. Therefore if the legislation
was enacted but excluding the State of Victoria (because of the referred legislative powers) then it
clearly was not a “general power” exercised within subsection 51(xx) as the referred powers of
industrial relations can have no bearing upon the exercise of “general legislative powers” within
subsection 51(xx) as to do so would rather signify that in fact the was no use of the “general
legislative powers” within subsection 51(xx) but rather that it was a power of subsection 51(xxxv)
but for legal trickery pursued to be within subsection 51(xx).

What ought to be clear is that the referral of legislative powers by the State of Victoria (apart of if
this was constitutionally valid) should have played no part in any legislation purportedly enacted
within the confines of subsection 51(xx). The Commonwealth of Australia by referring to the
reference of legislative powers within subsection 51(xxxvii) for purpose of subsection 51(xxxxv)
acknowledged that the exercise of the legislation was for industrial relations purposes and nothing
to do with the subsection 51(xx) “general legislative powers”.
In my view, it would have been wiser for the Commonwealth of Australia to have legislated within
the provisions of subsection 51(xxxv) for so far it could using also its own Section 122 of the
Constitution “sovereign” territorial powers as well as the (if so constitutionally validly referred)
“industrial powers” of any State and then have sought other States to “adopt” this legislation as to
make it a “general legislative power”.
* Could not like the Australia act all States have referred their legislative powers?
**#** As I have explained so often to you, if you were not asleep, and the Australia Act 1986 (Cth)
is a clear example, there is not constitutional power for all States to refer legislative powers to the
Commonwealth within Section 51(xxvii) and neither was the “Australia Act 1986” provisions
anything that could be deemed being a “matter’ in dispute by some States.
* Look, you do not need to be offended about me asking this again, as the Reader may not have
read our other books that already have been published and as such I am merely pretending that I
don’t know and so ask the question again for the sake of the Reader to get tome grip on matters.
**#** All right, perhaps I was a bit to quick on rebuking your question, and I acknowledge that you
are trying to assist the Reader in that regard just that I am a bit edgy, so to say, as I am all ready
noticing that this Chapter is about 350 pages and I never intended to have it that long and need to
cut out parts to reduce the volume as otherwise we have a one Chapter book. So I am trying to keep
discussions to a minimum.
* Excuse me, it is not better to set the facts straight then to do what you criticise the High Court of
Australia so much about, failing to attend to all relevant matters?
Sure, but there is now a limit to what we can do, at least in this Chapter, and I am not saying I do
not welcome your very helpful assistance but lets keep some material for another section and unlike
the judges we do not have to set out all relevant matters in this chapter as we can published in the
book on CD in more extensive manner. After all, this book to be printed will be of limited number
of pages and so have to be seized down for this.
Anyhow let not waste any space and time and lets go into the issue of what we are discussing and
that is Industrial Relations. The Framers of the Constitution having created subsection 51(xxxv)
under its own heading therefore specifically stated that anything to do with industrial relations
cannot be covered with any other general provision, such as subsection 51(xx) unless it can be
demonstrated that not to legislate so would injure the powers otherwise exercisable within
subsection 51(xx). Not some imaginary injury but a distinct injury that it could not legislate as to
the registration of corporations because of it, or it could not effect registration of companies because
of industrial relations legislation by one of more States. For example, if a State had legislated under
its legislative powers that no employee could work for a corporation not created in that State then it
could be claimed by the Commonwealth of Australia to injure its “general legislative powers” to
register a company within subsection 51(xx) as it would go to the heart of the ability of a
corporation to operate.

* Would you mind not to give the Commonwealth of Australia some possible idea’s how to perhaps
otherwise get around matters!
**#** Look, I am not seeking to argue the matter on moral grounds, unless so argued by the
Framers of the Constitution, I am seeking to argue the ability of how the provisions of the “general
legislative powers” of subsection 51(xx) could have been invoked in a constitutional manner if such
event had taken place, as to show a legitimate claim of injury to the Commonwealth of Australia
“general legislative powers”.
Lets now look as the application of “general legislative powers” as the Framers of the Constitution
intended, in particular the proceedings as shown in the Hansard records of the Constitution
Convention Debates of 27-1-1898 does give an insight to some of the questions posed by the
Framers of the Constitution and even their own bewilderment as to how matters were applicable, as
was indicate by some Delegates.
Mr. KINGSTON.-Yes, the New Zealand and South Australian provisions are very much alike. I think you
might go further, however, as we do in South Australia, and provide for the creation of a private board by a
simple agreement between the parties. I do not ask the Convention to come to any conclusion as to the mode in
which this power should be exercised; but I ask honorable members to say that it is a right and proper thing to
give to the Federal Parliament the power of dealing with these questions in such a way as it may think fit
whenever they assume an aspect of federal importance. The leading feature of this Constitution is that the
Federal Parliament should have power to legislate for the peace, order, and good government of the
Commonwealth." By what means are the peace and order of the various colonies most disturbed, and their good
government threatened, at the present time? By strikes and lock-outs. Shall we not then be wanting in our duty if
we do not give to the Federal Parliament power to legislate in such a way as will prevent strikes and lockouts,
and enable industrial questions of the greatest difficulty to be amicably settled between the parties, upon
considerations of right and wrong rather than because of the relative strength of the disputants.
The High Court of Australia’s own admission, as referred to below that it never has attempted to
restrict legislation to be considered within the limitations of “for the peace, order, and good
government”, must be a condemnation to itself for having, as the GUARDIAN OF THE
CONSTITUTION, disregarded this constitutional limitation. The High Court of Australia is
constitutionally bound to interpret matters within the constitutional terms provided for and cannot
ignore limits merely as to perhaps please the Federal Government, being it for the sake of seeking a
more acceptable position for pay increase, better conditions, or whatever, as it would basically
allow itself to be placed in conditions it argued against in the Forge 1996 case regarding temporary
judges and that they could be, as I put it in my own words, manipulated. Time and again the
Framers of the Constitution stipulated that legislative powers was to be within the limited powers
“for the peace, order, and good government” and as such it is not for the High Court of Australia
to simply ignore this constitutional limits as by doing so and confessing to always having done so
allows its credibility to be questioned and so also what might be the reason for doing this. I, for one,
did not notice any of the judges to address the issue if any colonial laws were still existing that were
affected by the purported Amendment Act (WorkChoices) legislation.
See also Chapter 007B PEACE-ORDER AND GOOD GOVERNMENT
While judges over the last 100 years of so might not have bothered to research the Hansard records
of the Constitution Convention Debates at all or not to the extend as I have, nevertheless it cannot
by its own ignorance not to have done so deprive the States of their guaranteed legislative
provisions as existed at the time of federation. None of the judges appear to me to have considered
this issue and as such none of the judges have adjudicated upon this matter in an appropriate
manner. The provisions of Section 109 were referred to but not considering possible existing
colonial laws. Where it comes to the debates about “aliens” the Delegates themselves are puzzled
what is the proper course as different views emerged about the application of what is now Section

51 of the Constitution legislation by a State versus Federal legislation. What is however clear is,
that there was a clear opposition to give legislative powers to the Commonwealth of Australia
regarding State internal affairs regarding industrial relations and for this consider their statements
made and intentions expressed it would be an absurdity to read into subsection 51(xx) that it
included powers the Framers held fell within the Industrial Relations powers.
Where laws exist at the time of the adoption of this Constitution they will be preserved; but do not let us
give power to the states to make new laws which will create new difficulties and complications.
Also should be kept in mind, as many quotations below indicates, that even for federation purposes
existing contracts were considered and as such it would be absurd to accept that companies could
have entered in commercial contracts upon the basis of valid State legislation and then suddenly the
Commonwealth of Australia by its enactment could cause the company to become bankrupt, due to
legislative changes that make fulfilling existing contract financially impossible. Likewise, workers
who had entered into employment and upon this engaged in mortgage and other financial contracts
upon valid State legislation would then be send bankrupt for no fault of their own but because of the
Commonwealth of Australia legislating in defiance of reasonable business practices. Why on earth
the judges never considered this issue is beyond me.
No business could act with confidence where their very security would be undermined. Indeed, the
Framers of the Constitution opposed to allow retrospective legislation as to turn a honest man into
some criminal by retrospective legislation. Yet, somehow the High Court of Australia, the
GUARDIAN OF THE CONSTITUTION has permitted the Commonwealth of Australia to
vandalise business security. Many companies quite for work in other countries and it can take years
before eventually they may be awarded a contract. They spend tends if not hundreds of thousands of
dollars to estimate projected cost and this based upon existing State law, where applicable. It would
be absurd to accept that some building contractor, having entered in to building a large office
complex and have done to on the security of State laws, then suddenly might be faced with the
Commonwealth of Australia deciding to legislate and may set conditions that would be devastating
to the builder and may even cause him being prevented to fulfil his contractual obligations and also
cause his financial collapse. Common sense alone ought to have given the judges the understanding
that no one could be allowed to be some business terrorist to change conditions as if it has all the
powers to do so disregarding it can only make legislation “for the peace, order, and good
government”. Why none of the lawyers involved in the cases that were before the Court raised this
issue also ought to be questioned. After all, where I am not even formally trained in legal matters
but achieved my knowledge by self study, then surely lawyers who are earning large amounts of
moneys and have their profession to litigate constitutional issues should have been competent
enough to raise this issue before the court.
The matter reminds me very much of the story of "Ginx's Baby." After they had been squabbling about
the "territorial rights" of that unfortunate baby until it had been kicked overboard, the writer concluded
with these extraordinary words, "Good God, what has become of the baby?"
The same might be stated where the very people who are the centre of the issue have been totally
ignored.
Where Commonwealth law in effect have the result to act retrospectively against existing contracts
that were made at the time under valid State laws then this too ought to be considered that the
legislation must be deemed for this to be null and void.

Mr. BARTON: I will look into these matters. Notwithstanding the able draughtsmanship of the 1891 Bill,
there are several clauses not quite in their right place in it, and it would be well to alter their order. The Drafting
Committee will look into that matter, and at the end of the proceedings will ask hon. members to give their
attention to such alterations as they may suggest. It will be better to transpose some of the clauses. With
reference to Sir Edward Braddon's amendment, which is put in a better form than that suggested by Mr. Symon, I
do not think there is any actual necessity for it. I find in Maxwell on "Interpretation of Statutes," 1st edition, page
192, this passage:
It is where the enactment would prejudicially affect vested rights, or the legal character of past Acts, that
the presumption against a retrospective operation is strongest . Every Statute which takes away or impairs
vested rights acquired under existing laws, or create a new obligation, or imposes a new duty, or attaches
a new disability in respect of transactions or considerations already past, must be presumed, out of respect
to the Legislature, to be intended not to have a retrospective operation. Thus the provision of the Statute of
Frauds, that no action should be brought to charge any person on any agreement made in consideration of
marriage, unless the agreement were in writing, was held not to apply to an agreement which had been made
before the Act was passed. The Mortmain Act, in the same way, was held not to apply to a devise made before it
was enacted. So it was held that the Act of 8 & 9 Vict., c. 106, which made all wagers void, and enacted that no
action should be brought or maintained for a wager, applied only to wagers made after the Act was passed.
Sir GEORGE TURNER: There is no doubt about those cases, I should say.
Mr. BARTON: In subsequent editions these examples are multiplied. The principle underlying the matter
is this: that a court in construing an Act assumes that Parliament never intended to do a thing which is
unjust. I am quite sure that Mr. Symon will agree that the provision is not necessary.
Mr. SYMON: Hear, hear.

Mr. BARTON: There need not be the least fear that any court of justice would so interpret the provision
as to apply to anything made before the law took effect.
Mr. OCONNOR.-
I think the honorable member (Mr. Higgins) will understand, from his experience of the law, that there are
differences of opinion about these matters, and we only want to ascertain what the law really is. I have a very
clear view about it myself, and I think the view I have is in accordance with what we will all admit to be the
justice of the case. Further, if there was any doubt at all about the preservation of rights which have been
acquired under any bounty laws made before the 30th June, 1898, I think that point should be made perfectly
clear in the Constitution, so that those rights should be preserved. But after that date any statute which merely
gives the right from day to day, as the offers under the statute are accepted, should, of course, cease on the
imposition of uniform customs duties. I call the honorable member's (Mr. Isaacs') attention to a passage in
Maxwell on the Interpretation of Statutes, page 299, which states-
It is chiefly where the enactment would prejudicially affect vested rights, or the legal character of past
transactions, or impair contracts, that the rule in question prevails. Every statute, it has been said, which takes
away or impairs vested rights acquired under existing laws, or creates a new obligation, or imposes a new duty,
or attaches a new disability in respect of transactions or considerations already past, must be presumed, out of
respect to the Legislature, to be intended not to have a retrospective operation.
Then Maxwell gives a number of instances to illustrate this principle, which is very well known.
Mr. REID.-Express words are required to make anything retrospective, to impair a contract.
Mr. OCONNOR.-That is well known, and this provision, when it says the Act is to cease and have no
effect, cannot possibly touch the validity of any contract which has been created while the Act was in full
force and effect.
Sir GEORGE TURNER.-Should you not also provide for accruing rights?
Mr. BARTON.-I will see that the clause is made quite clear with regard to all existing rights.
[start page 948]
Dr. COCKBURN (South Australia).There can be no doubt whatever that the honorable member (Mr.
O'Connor) is quite right that any actual agreements or contracts, made with specific persons or companies,
would remain in force; but that is not the point raised by this amendment, and I do not think that is the point
raised by the Right Hon. Sir George Turner, in what he proposes to do for the development of the wine industry
of Victoria. I do not take it that he means only to enter into certain contracts with companies or individuals,
which would give them a monopoly if he was prevented from giving the same terms to others. What I believe the
Government of Victoria would wish to do, in developing an industry of this character, would be to make a
general agreement to give certain facilities, not to any one individual, which would be monstrous, but to anybody
who chose to fulfil the conditions of the offer; but such general terms would not be held to be a specific contract
under this clause. Of course there is no doubt that if the Government of Victoria enters into a contract with any
individual or company, that would have to stand, and any law that abolished it would be monstrous; I do not
care whether it was an Imperial Act or not.
Mr. MCMILLAN.-But what about entering into new contracts?
Dr. COCKBURN.-I take it that these are not contracts at all. These are grants or agreements for a bounty-the
bounty not to be paid to any individual named, but to be paid to any individual or company that fulfils the
conditions.
Mr. MCMILLAN.-Take the case of a guarantee. Do you say that the state Government should be allowed to
do that after the 30th June for other people?
Dr. COCKBURN.-Certainly; I take that to be the intention of this clause.
Mr. DOBSON.-To enter into a guarantee with other people?
Dr. COCKBURN.-There is no guarantee with any individual at all in this case. I have been watching this
development in Victoria with some interest; but I do not take it that the Victorian Government intend to enter
into any contract, only with an individual or a company. They wish to encourage the establishment of central
depots for blending and maturing wine, receiving must, and so on; but they do not mean to enter into a contract
only with some individual or company.
Mr. HENRY.-Yes, that has been stated.
Dr. COCKBURN.-Of course I may be under a mistake, but I think the people would at once protest against
any advantage being shown to any individual who happened to come in before the 30th June that could not be
availed of by others who were willing to subscribe to the same conditions. The state should simply offer to give
assistance to any of the general public or persons in the trade who desire to take advantage of the offer;
o therwise the proposal would be a monstrous one.
Mr. SOLOMON.-In the same way, you should have the right, in South Australia, to continue the bounties to
others that you have given in the past, with regard to the wine industry.
Dr. COCKBURN.-Certainly; and if the colonies are to go ahead they must have that power. It must be done.
You must not cripple a live colony, lest it should get ahead of those who travel at the rate of corpses. The
honorable member (Mr. Solomon) must admit that it would be absolutely disastrous if we were to say that, in the
future, no encouragement is to be given to any particular industry. The assistance will have to be given
somehow, whatever this Constitution may say on the subject. The common sense of Australia will insist upon it,
when some of the ideas of those who still maintain the laissez faire principle are exploded, as they will be
shortly. The common sense of the Commonwealth, if we try to tie any ligaments round the proper development
of industries, will insist on those restrictions being removed.
The usage of “companies” in the aforementioned quotation indicates that it had nothing to do with
Subsection 51(xx) but still was relating to the way the State could deal with companies. In fact the
framers of the Constitution were often referring to “companies” and as such did not particularly
regard that subsection 51(xx) was the all out governing provisions but their debates rather indicated
that the registration was what it was all about concerning Section 51(xx) and then considering what
the framers of the Constitution stated about the meaning of registration for electoral rolls and the
difference to entitlement to vote, then their perception was clearly that subsection 51(xx) had
nothing to do with the managing of a plant or factory but was rather restricted to the manner in
which the company may operate in its management affairs.
Mr. HIGGINS.-There has never been any practical difficulty in showing the existence of an organization
either on one side or the other.
Sir JOHN DOWNER.-When an organization makes a demand in one colony there has never been any
difficulty in getting other organizations elsewhere to extend the dispute. It is really compulsory arbitration that
is asked for. It is called conciliation, but it is main force.
Using the term “organization” does not particular either indicate a individual rather more a
corporation structure.
Mr. MUNRO: The banks are incorporated under the Companies Act in Victoria!
Sir JOHN BRAY: You can establish financial companies, which you do not call banks, but which answer all
the purposes of banks. We have provided that the federal parliament shall legislate as to the incorporation of
banks; but there is nothing to prevent the incorporation by the states themselves, quite apart from the federal
parliament, of trading companies which will do all the ordinary business of banks. If it is desirable to intrust
legislation as to the incorporation of banks to the federal government, there is no reason why we should not say
that the registration of financial companies doing all the business of banks should be dealt with in the same
manner.
What stands out here is that the wording “of trading companies which will do all the ordinary
business of banks.” Rather gives me the understanding that “trading companies” referred to were
being financial companies and not a “trading company” as may be deemed to be ordinary
companies that are trading in footwear, clothing, etc. Indeed, below is a set out of disqualification as
now exist in Section 44 of the Constitution (after the various clauses were revamped to just the one
clause) “Proviso exempting members of trading companies.” And this indicates that the wording
“trading company” was more about financial trading then trading in clothing, etc.
Allowance to members.
45. Each member of the Senate and House of Representatives shall receive an annual allowance for his
services, the amount of which shall be fixed by the Parliament from time to time. Until other provision is made
in that behalf by the Parliament the amount of such annual allowance shall be five hundred pounds.
Disqualifications of Members.
46. Any person-
(1) Who has taken an oath or made a declaration or acknowledgment of allegiance, obedience, or adherence to a
Foreign Power, or has done any act whereby he has become a subject or citizen or entitled to the rights or
privileges of a subject or a citizen of a Foreign Power; or
(2) Who is an undischarged bankrupt or insolvent, or a public defaulter; or
(3) Who is attainted of treason, or convicted of felony or of any infamous crime;
shall be incapable of being chosen or of sitting as a Senator or Member of the House of Representatives until the
disability is removed by a grant of a discharge, or the expiration or remission of the sentence, or a pardon, or
release, or otherwise.
Place to become vacant on happening of certain disqualifications.

47. If a Senator or Member of the House of Representatives-
(1) Takes an oath or makes a declaration or acknowledgment of allegiance, obedience, or adherence to a Foreign
Power, or does any act whereby he becomes a subject or citizen, or entitled to the rights or privileges of a
subject or citizen, of a Foreign Power; or
(2) Is adjudged bankrupt or insolvent, or takes the benefit of any law relating to bankrupt or insolvent debtors, or
becomes a public defaulter; or
(3) Is attainted of treason, or convicted of felony or of any infamous crime;
his place shall thereupon become vacant.
Disqualifying contractors and persons interested in contracts. Proviso exempting members of trading
companies.
48. Any person who directly or indirectly himself, or by any person in trust for him, or for his use or benefit, or
on his account, undertakes, executes, holds, or enjoys, in the whole or in part, any agreement for or on account of
the Public Service of the Commonwealth, shall be incapable of being chosen or of sitting as a Senator or
Member of the House of Representatives while he executes, holds, or enjoys the agreement, or any part or share
of it, or any benefit or emolument arising from it.
If any person, being a Senator or Member of the House of Representatives, enters into any such agreement, or
having entered into it continues to hold it, his place shall thereupon become vacant.
[start page 951]
But this section does not extend to any agreement made, entered into, or accepted, by an incorporated company
consisting of more than twenty persons if the agreement is made, entered into, or accepted for the general benefit
of the company.
Place to become vacant on accepting office of profit. Exceptions.
49. If a Senator or Member of the House of Representatives accepts any office of profit under the Crown, not
being one of the offices of State held during the pleasure of the Governor-General, and of profit. the holders of
which are by this Constitution declared to be capable of being chosen and of sitting as Members of either House
of Parliament, or accepts any pension payable out of any of the revenues of the Commonwealth during the
pleasure of the Crown, his place shall thereupon become vacant, and no person holding any such office, except
as aforesaid, or holding or enjoying any such pension, shall be capable of being chosen or of sitting as a Member
of either House of the Parliament:
But this provision does not apply to a person who is in receipt only of pay, half-pay, or a pension, as an Officer
of the Queen's Navy or Army, or who receives a new Commission in the Queen's Navy or Army, or an increase
of pay on a new Commission, or who is in receipt only of pay as an officer or member of the Military or Naval
Forces of the Commonwealth and whose services are not wholly employed by the Commonwealth.
Penalty for sitting when disqualified.

This also underlines that the concerns of the framers of the Constitution was about an “office of
profit” with the Commonwealth and not with a State.
Mr. SYMON.-My honorable friend will hand that over to the Federal Parliament. I do not want to hand over
to the Federal Parliament too many of these difficulties. This, in my view, should be solved by the local
authorities themselves. They are the people to deal with their own questions of industrialism. I do not want to
enter into a discussion as to the modes of carrying out this proposal; that will be a matter for the Federal
Parliament if we decide to introduce this power. But I will put to my honorable friend what is a practical
question in connexion with this power. Who is to decide as to when an industrial dispute extends beyond the
limits of a state? Who is to decide when a dispute originating in South Australia enters into the colony of
Victoria, so that Victoria shall be put under some kind of martial law?

Mr. ISAACS.-It is a question of fact, like anything else.
Mr. SYMON.-Undoubtedly; but who is to decide it? Is it the Victorian Executive? Did I understand my
honorable friend (Mr. Higgins) to say of course"?
Mr. HIGGINS.-No, I say certainly not.
Mr. SYMON.-Then who is to decide?
Mr. JAMES.-The Federal Bill will dispose of that.
Mr. SYMON.-How is the Federal Bill to say when a strike spreads from one colony to another? Suppose one
shoemaker steps over from Bordertown to Horsham.
Mr. MCMILLAN.-There might not be a lawyer at the head of affairs, and whoever was there would not know
what to do.
Mr. JAMES.-You may be certain the lawyers will be there.
Mr. SYMON.-That would be the only means of carrying this out to a successful issue. As an honorable
member suggests -and it illustrates the position-supposing a firm has branches in different cities, and there is a
strike in the branch in South Australia, and an air of discontent in the branch in Victoria, would that be sufficient
to call down the interference of the federal authorities? What I say is that it will not be in your Bill; it will not be
in this Constitution; it will not be for the Executive; but it will be for the Federal Parliament to decide that, and
you will hand over to the Federal Parliament one of the most pregnant sources of heat and passion that ever was
invented.
Mr. HIGGINS.-Will you not trust the Federal Parliament with this as well as with the customs duties?
Mr. SYMON.-What relation has this to customs duties? The industrial life of the state is considered by all
of us (subject to this exception, it may be) a thing of purely domestic concern. We do not want to interfere
with the domestic life, or with industrial life, except in the last resort. If you are going to introduce such a
thing as this it must be the Federal Ministry which will have to decide, subject to the Parliament, and you will
introduce the greatest complication and intensity of feeling that was ever seen.
Again, it is absurd to argue that somehow subsection 51(xx) could have a meaning contrary to what
was so extensively debated.
Mr. SYMON.-Does my honorable friend, who is one of the most profound and acute lawyers in Australia,
really put a question like that to me? The Victorian law did deal with that strike and every incident of it. The
Victorian law could not bring these people together, and metaphorically knock their heads together, which would
perhaps have been the best thing to do; the Victorian law did not say Come together and let us reason out the
thing." No power in the world can do that.
Mr. BARTON.-It is the original dispute and not the subsequent strike which requires to be settled.
Mr. SYMON.-A strike is the outward and visible sign of the real dispute between these parties. I appreciate
the reference made by the honorable member (Mr. Dobson), but I think be must see that a maritime strike is like
any other strike. The relations between the parties are determined by the contract in the place where it
occurs. The maritime law of England governs all Australia; the Merchant Shipping Act, with some local
modifications, is applicable everywhere, and [start page 193] there is no more difficulty in dealing in each port
with a maritime strike than t here is in dealing with any other strike. The point here, as the honorable member
(Mr. Barton) has remarked, is the original dispute. How are you to deal with that? How are we to deal with
the two bodies who join in the conflict? What is a court of law to do?
An HONORABLE MEMBER.-How does a court of law do anything at present?

Mr. SYMON.-My honorable friend knows that if a striker strikes a free labourer, or vice versa, and that
goes to a court of law, you can deal with it by the instrumentality of the court of law.
Mr. JAMES.-The honorable member was saying that we should leave the parties to settle the disputes their
own way. We do not allow masters and servants to do that in every case.
Mr. SYMON.-You allow them to settle their disputes in their own way by law.
Sir JOSEPH ABBOTT.-The defendant never wants to go to law.
Mr. SYMON.-Of course not. I do not suggest that we should resort to the primitive method of settling
disputes by fisticuffs or trial by combat.
Dr. COCKBURN.-Strikes are almost as barbarous. We want to settle disputes by a less barbarous form.
Mr. SYMON.-Will my honorable friend tell me, first, how he is going to settle the dispute which has
produced the strike; and, secondly, what possible benefit it will be to remove this from the local
jurisdiction, and to hand it over to the federal authority? My view is that it is purely a matter of domestic
concern, that if we hand it over to the federal authority we shall be introducing greater difficulties than we could
even hope to cure, and that it will be an invitation to mischievous men-it may be on the other side, but we are not
touching that question now-to increase and extend the area of the strike in order to bring about something like
civil war . That is a prospect which I dread, and I trust that honorable members will not allow a mere feeling of
sentiment, the pleasure of seeing the word conciliation" in this Bill, to lead them away from the practical issue of
how they are to justify the federal authority being intrusted with this great power.
And
Sir JOSEPH ABBOTT.-If the insertion of these words has the effect of satisfying a sentiment which we know
largely prevails throughout a certain class in Australia-if they are only idle words, what harm will be done by
inserting them in the Bill? Mr. Symon argued, in reference to the insertion of those words, more as if be were
pointing out what the Bill would or would not be, rather than as on a proposal to give the Commonwealth power
to deal with this question. I can really see no harm in giving the Commonwealth power to deal with the question.
Mr. Trenwith has referred to the fact that very often these industrial disputes are easily settled if the parties to
the disputes can be brought together. Mr Symon asks-"How can you enforce an Award or determination
against 100,000 working men?" Well, we know that it is absolutely impossible to do so. But we also know that
the working men, at least in this 19th century, are just as amenable to public thought and reason as anybody else,
and are just as amenable to public opinion as the masters themselves. And, although these awards cannot be
enforced against them as a matter of law , I can say, from my own experience, that I believe they will be
accepted by both parties. I have witnessed the action of conciliation courts sitting in Dunedin. On one occasion a
dispute arose, I think, between the builders and the carpenters, and the matter was referred [start page 198] to the
conciliation court. An award was made, and the men's unions universally condemned that award, but every one
of them loyally submitted to it, and business went on without any of those quarrels which might have
disorganized the whole of that particular trade. I am not quite sure whether the dispute was in the building trade
or amongst the shoemakers -it was either the one or the other.
And
Mr. DOBSON (Tasmania).-
If a court or tribunal of this kind were established-and I do not care how simple or how powerless it is-it will at
least be a step in the right direction. I may illustrate what I mean by reminding myself, and telling the
Convention, of the first fight I had when a boy at school. The boy was about my own size.
Mr. BARTON.-Did you only have one?
Mr. DOBSON.-Yes, only one stand up fight. I do not admit for one moment that I was getting the worst of
[start page 205] it, but I do admit that when a mutual friend came and took my opponent's arm and led him away
in one direction, and took my arm and led me away in another direction-
Mr. PEACOCK.-You were very glad?
Mr. DOBSON.-Well, I was not sorry. I take it that there is no body of persons in the world whom it would be
more difficult to persuade that they were wrong than a number of employees fighting for what they think to be
right and just on behalf of themselves, their wives, and their children, against their employers. I do not see the
common sense or wisdom of refusing to the Federal Parliament power to create some simple tribunal whereby

the employees on the one hand, and the employers on the other hand, could be led away in the peaceful fashion I
have just described, and a strike averted which would be fraught with danger to the whole of the Australian
Continent.
Mr. LEAKE (Western Australia).-When this question was before the Convention in Adelaide I had no
opportunity of casting my vote for or against the proposal, because with other members of the Western
Australian delegation I had already returned to my own colony. For that reason, I do not wish to give a silent
vote upon this occasion. It is my intention to vote against the amendment, because I am impressed with the
argument that this is a matter not so much for the Federal Government as for the states Governments. The
contention that to insert the proposed words would do no harm because they are more idle words does not seem
to me to be based upon sound reason. If honorable members have been impressed by the warning given to us by
the Premier of New South Wales a few days ago, they will see that words of this sort are not inserted in th e
Constitution. If this power is given to the Central Government the states Governments will be deprived of the
right to legislate upon the subject.
Mr. DOBSON.-Not at all.
Mr. OCONNOR.-When the power of the Federal Government is once exercised of course it will.
Mr. BARTON.-The moment the device of extending a dispute so as to put it under the jurisdiction of the
Federal Government is adopted the state Government will be unable to act.
And
Mr. HOWE.-There would be no occasion for the federal authority to interfere.
Mr. HIGGINS.-The federal authority could not interfere. The dispute must be one extending beyond
any one state."
Mr. BARTON.-That gives a direct incentive for the extension of the dispute.
And
Mr. SYMON.-On the other hand, what would prevent an employer from shutting up his shop if an award were
given against him?
Mr. GLYNN.-Yes. Would a mandamus be issued if he did not open his shop?
Mr. HIGGINS.-You can impose a penalty for disobedience. Of course, while you can lead a horse to the
water you cannot make him drink.
Mr. GLYNN.-I would not lead a horse to the water if he were not thirsty. We have seen the growth of
voluntary machinery, which 25 years' experience in England has shown to be efficacious, and by substituting for
it the principle of compulsion you must, if you do not nip in the bud, at any rate interfere with the early growth
of the principle of conciliation and arbitration.
Mr. HIGGINS.-If the principle is bad the Federal Parliament will not adopt it.
Mr. GLYNN.-The honorable member must be an innocent in political life if he thinks that.
Mr. HIGGINS.-Why should not the Federal Parliament be as wise as we are?
Mr. GLYNN.-No doubt, but that is not going very far. On a simple point like this, we have had something like
25 different opinions, so that there are two sides to the wisdom of Parliament. The bulk of legislation during the
last 30 or 40 years has simply repealed the efforts of earlier legislators who worked on philanthropic lines. I
should be prepared to vest this power in the Federal Parliament if I thought that it would do any good or that it
would not do harm, because I think we ought to arm the federal body with any power which may be efficacious
for the purposes of good government, and which will not annul the existing rights of the states. But I am of
opinion that you will tie the hands of the state by enacting legislation of this character, because it will be
impossible to say where the line of demarcation is. [start page 208] There may be a strike in one colony, and
there may be manifested sympathy and support towards the strikers from other colonies without an absolute
strike taking place in those other colonies. It will then be difficult to say whether the manifestation of that
sympathy and that supply of funds does not constitute an extension of the dispute. A provision of this sort would,
in fact, be full of difficulties of interpretation, and, instead of having a settlement of disputes, you may have a
complication. Fur ther than that, some lawyer might apply to the court for a mandamus to prevent the Federal
Parliament going into the matter at all, on the ground of possible interference with state rights. For these reasons
I shall be found voting against the amendment.
Mr. REID.-In the first instance I think that the onus should be placed upon those who wish to add to the
subjects on which the Federal Parliament is to have jurisdiction of giving reasons in favour of their proposals. No
part of this Bill has received more careful consideration from the various bodies who have dealt with it than this
particular clause, so that when an honorable member wishes to introduce a new subject of federal jurisdiction,
the onus is placed upon him of showing that there is some distinct advantage to be gained by it. I have no doubt
that those who are in favour of the amendment moved by the honorable member (Mr. Higgins) do believe that a
distinct advantage would be gained by making this a federal subject. There is a tendency in these days, especially
among those who are very anxious to bring about an amelioration of all the ills which flesh is heir to, to intrust
knotty problems to some new authority, in the pious hope, that matters which human wit has hitherto never been
able to settle satisfactorily will be settled by some such tribunal. I fear that this attempt to settle the matter of
trade disputes by referring them to some new jurisdiction will only lead to an extension of the evil. Because we
must see at once that this proposal has a very serious disadvantage in it. The honorable member does not propose
to hand over all trade disputes to settlement by the Federal Parliament. He hands over only those trade disputes
which extend beyond the limit of one state. Cannot we see that giving any such power must result in a most
unfortunate state of things arising? For instance, let us suppose that there are several sets of laws in existence
dealing with this subject-one in a particular state, which are not interfered with by any federal law; different laws
in each of the other four states; and then a federal law which may be radically different from all the others. Just
consider the temptation under those circumstances to shift the venue of a particular trade dispute from a
particular state. If the employers in the trade dispute in a particular state think that the federal law and its
administration are more likely to suit them, look at the incentive there is to extend the mischief and evil into
another state, or more than one other state, in order to shift the venue of the tribunal which will try the dispute.
There is at once, I say, an incentive to shift the venue if the employers think that the federal tribunal will be
likely to suit them best, and they will be tempted to extend the dispute in order to suit their own personal
interests. So it will be with the other side-the working men-if they think that, the federal; tribunal will best suit
their interests.
Mr. HIGGINS.-As if the Federal Parliament would not deal with such a case!
Mr. REID.-I cannot conceive of a Parliament which could deal with contingencies of that kind.
Mr. HIGGINS.-It is quite possible for the Federal Parliament to draw the line, and to allow the tribunal to
decide whether a particular case referred to it is a bona fide dispute pertaining to one colony or not.
Mr. REID.-We are drawing the line here.
[start page 209]
Mr. HIGGINS.-We are drawing no line here.
Mr. REID.-But we say that the dispute is only to be dealt with by the Federal Parliament when it is a dispute
existing in more than one state.
Mr. HIGGINS.-Yes, that is so.
Mr. REID.-That is all I am addressing myself to; and I am showing that such a provision will tend to enlarge
the area of trade disputes, for the very reason that in a given dispute the employers might be disposed to extend
the working area, or the men might be disposed to extend the area, in order to get the advantage of having the
dispute settled by the federal tribunal. Now, I am one of those who quite believe in the compulsory investigation
of trade disputes. I have quite come to that conclusion. But a proposal that the Federal Parliament shall provide
for the compulsory investigation of trade disputes passes my comprehension. It seems to me that any such
proposal would put a premium upon one side enlarging the area of the mischief. Under all the circumstances, it
seems to me that it will be better for each state to deal with this matter locally. I am, to a considerable extent, in
sympathy with those who are agitating upon this matter, but I think that it is one that can be best dealt with by
means of laws passed by the various states. While I am personally in favour, however, of the compulsory
investigation of trade disputes in particular states, I am opposed to a compulsory federal investigation of local
trade disputes.
And

Sir EDWARD BRADDON.-And as in the case of wages, which necessarily vary according to varying
conditions within a state, so it must be remembered that there are many other matters which are largely ruled and
governed by local conditions. I see the matter just as strongly now as I did in Adelaide. I see that it is a matter
which should be left to the adjudication of the states; and I would urge further that, by the interference of the
Commonwealth Government in matters affecting the different states as to industrial disputes, there will be a
probability, possibly more than a probability, of very serious friction arising between the Commonwealth and the
states. When the honorable member who moved this amendment rose, I quite thought that he [start page 215]
rose with the intention of withdrawing it. After seeing that that amendment, moved by himself as an extreme
liberal, and supported by some as extreme liberals, came to be supported by extreme conservatives, or I may say
tories, I was all the more confirmed in that idea when he admitted that the support of my right honorable friend
(Sir John Forrest) almost convinced him that he had better leave this matter alone.
Mr. MCMILLAN.-Perhaps he will withdraw it now.
Sir EDWARD BRADDON.-I thought he would then, and I hope be will now withdraw it as something which
will not be to the interest of labour or to the interest of the states.
Question-That the new sub-section proposed to be inserted be so inserted-put.
The committee divided-
Ayes. ... ... ... ... 22
Noes. ... ... ... ... 19
Majority for the sub-section ... 3

And
Mr. BARTON (New South Wales.)-I might mention as to this sub-section that there is a difference between
its language and the language of the corresponding sub-section in the Bill of 1891. The difference is this:-In the
Bill of 1891, after the words legislative powers" there came the words with respect to the affairs of the territory
of the Commonwealth, or any part of it." It was considered unnecessary to retain those words, because the
whole scope of the legislative authority is that the legislation should be for the peace and good government
of the Commonwealth itself. Inasmuch as the Commonwealth cannot make any laws except for the peace,
order, or good government of the Commonwealth itself, we thought that it could not make laws except
with respect to the affairs of the territory of the Commonwealth or any part of it.
And
Mr. BARTON (New South Wales).-I think the original intention of this sub-section was to deal with the
affairs of such persons of other races-what are generally called inferior races, though I do not know with
how much warrant sometimes-who may be in the Commonwealth at the time it is brought into existence,
or who may under the laws of the Commonwealth regulating aliens come into it. We have made the
dealing with aliens, which includes a certain degree of coloured immigration, a power of the
Commonwealth, and we have made the dealing with immigration a power of the Commonwealth, so that
all those of the races who come into the community after the establishment of the Commonwealth will not
only enter subject to laws made in respect to their immigration, but will remain subject to any laws which
the Commonwealth may specially devise for them. There is no reason why the Commonwealth should not
have power to devise such laws.
And
Mr. WISE.-Yes, it would, because the Commonwealth would have no power to pass any law relating to
the immigration of any section of the community unless they were aliens.
And
Mr. BARTON.-Because the powers in clause 52 are all concurrent powers, and these are all exclusive
powers.
Mr. DEAKIN.-I understood that was the difference, and a glance at the following two sub-sections of clause
53 shows that they are matters upon which the Federal Parliament will have sole authority, and upon which,
naturally enough, the local Parliaments never could have, or expect to have, any authority. But, although this
provision is linked with them and placed in the exclusive clause, it deals with questions which are being dealt
with, which have been dealt with, and which probably in the future will be dealt with by the several states.

Sir EDWARD BRADDON.-And in which aspects they can only be dealt with by the several states.
Mr. DEAKIN.-If so, this sub-section has found its way into the wrong clause, and should be included in
clause 52 rather than in clause 53. We have Acts in some of the colonies relating to the Chinese; in other
colonies there are, or may be, Acts relating to Afghans. In the northern colonies there are statutes relating to
kanakas. All this legislation is [start page 231] in existence at present, and the leader of the Convention admits
that, until the passing of an Act by the Federal Parliament dealing with these people, the several Acts of the
several Legislatures relating to these several peoples would remain in force.
And
Mr. KINGSTON.-Section 100 preserves the existing legislation.
Mr. DEAKIN.-Yes; and section 101 provides that when a law of a state is inconsistent with a law of the
Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
And
Mr. BARTON (New South Wales).-If this is left as an exclusive power the laws of the states will
nevertheless remain in force under clause 100.
Mr. TRENWITH.-Would the states still proceed to make laws?

Mr. BARTON.-Not after this power of legislation comes into force.
And
Mr. BARTON.-
Now, the preservation of every inch of the shores of Australia from immigration of the kind indicated,
except to a certain limited extent, is one of the most desirable powers to place in the Constitution
And
Mr. BARTON.-
. If it is necessary to give the Federal Parliament power to make laws for their regulation, not applying to
the rest of the people of the Commonwealth,
And
Mr. BARTON.-
The laws which at present pertain [start page 233] in the states with reference to these people will remain
with nothing in them which is against the interests of the Commonwealth, unless the Commonwealth at
once legislates.
And
Sir GEORGE TURNER (Victoria).-I trust the leader of the Convention, will carefully reconsider his
position, and the apparently strong views be holds with regard to persons of foreign race. I agree with Sir
Edward Braddon, and other honorable members who have spoken, that when these people are once admitted to
Australia their control and management should be strictly a local affair. It is not a matter with which the Federal
Government should interfere. The Government of this and of other colonies should have full power to make
such laws relating to health, to factories, and to the licensing of these persons as they may deem to be fair,
just, and reasonable. The great difficulty I see with regard to this clause is in connexion with the making of the
power exclusive. If we put this provision in clause 52, as soon as the Federal Parliament chose to exercise its
power to legislate, the state laws now in existenc e would cease to exist.
Mr. KINGSTON.-Does the honorable member say that they would lapse?
Sir GEORGE TURNER.-Yes, if they were inconsistent with the federal laws.
And
Mr. OCONNOR (New South Wales).-
. I should like, however, to remind the honorable member of this fact: In the first place, where any local
Parliament has made laws, those laws are continued by clause 100, and, as a matter of fact, most of the
Parliaments have made laws in regard to these matters. The point at issue is: Is it desirable that the state
should have power to go on making separate laws dealing with aliens until the Federal Parliament shall
legislate?
Mr. ISAACS.-Why not?
Mr. OCONNOR.-If the Federal Parliament is endowed with this power absolutely, there is no doubt that
pressure will be brought by all the states to cause that body to legislate upon this matter at once, and it will
legislate upon it. But if the states have power to deal with these matters locally they may in many cases
avail themselves of this power, and when the Federal Parliament comes to deal with the subject, and to
apply an uniform law , it will be met by the vested interests which have been created by the laws of the
states. I say that we should have as few difficulties of that kind as possible . Let us deal with these matters as
they exist at the date of the establishment of the Commonwealth. Where laws exist at the time of the adoption
of this Constitution they will be preserved; but do not let us give power to the states to make new laws which
will create new difficulties and complications. That is my reason for differing from the view of Sir George
Turner that this provision should be transferred from amongst the exclusive powers of the Federal Parliament to
the powers conferred under clause 52. I should like to add a word in regard to the suggestion of the honorable
and learned member (Mr. Wise). No matter what the necessity for uniformity in these laws may be, the
honorable and learned member says that you must wait until some law has been made by the Commonwealth in
regard to these particular races. But why should we wait? What possible connexion is there between the
making of a law preventing aliens from entering the state and the making of a law to control their mode of
living while in that state? I can see no necessary connexion between the two. It seems to me that it would be
hampering the power of the Federal Parliament to make it a condition precedent to legislation with regard to
aliens within the borders of the Commonwealth, that it should legislate with regard to outside matters. For
instance, if you wish to deal with the question of legislation regarding Chinese or Japanese actually here,
there would be very little difficulty, but if you wish to make a law dealing with [start page 235] their
introduction into the state, you may be brought face to face with the obligations of treaties entered into by
Great Britain and other difficulties of that kind which cannot be surmounted.
Mr. ISAACS.-The same thing exists now.
Mr. OCONNOR.-That does not apply to dealings with races within your own territory. When other people
come within your borders they must submit to your laws.
An HONORABLE MEMBER.-These laws must relate to the time when they are within your territory,
because the distinction is drawn between them and the general community.
And
Mr. TRENWITH (Victoria).-
Take the colony of Victoria. We have legislation in the form of a new Factories and Shops Act, which
affects the Chinese in a manner such as no other colony has yet thought it necessary to affect them. It may
happen that no other colony will think it necessary to legislate in that way. But there can be no reason why
the legislation which is thought necessary by the Victorian people should not be permitted to continue in
Victoria.
And
Mr. TRENWITH.-It seems to me that immediately the Constitution is adopted the local Parliaments can
no longer carry any legislation into existence upon this subject-that they cannot perform one act of
legislation after the Constitution is effected.
Mr. DOBSON.-Read clause 100. They can go on altering or repealing, if they like.
Mr. TRENWITH.-It seems to me that if you use in this Constitution the term exclusive power" that means
that you exclude all others, and once that power is created there is no other power to legislate. I confess that in a
Convention such as this, where we have so many and such able lawyers, I speak with great diffidence upon such
a subject.
Mr. ISAACS.-Clause 100 would not permit new legislation on the subject.
And
Mr. WISE (New South Wales).-
. I always thought that the guiding sentiment amongst trades unions in Australia was [start page 239] a
desire to give a larger power to the Federal Government of dealing with the immigration and emigration
of races whose presence we might for one reason or another think undesirable -a larger power than can be
now exercised by any single state. If my ears did not deceive me, I heard the Right Hon. Sir George
Turner say they did not wish to give executive power to the Federal Parliament to deal with this question.
And
Mr. ISAACS.-The difficulty is this: If the power is put in clause 52 the Federal Parliament can deal with
the subject, and, if the Federal Parliament deals with the subject, that law will be paramount, and no state
can legislate against it.
And

Sir JOHN FORREST (Western Australia).-The difficulty, to me, seems to be as to what is meant by the word
affairs." Perhaps the leader of the Convention will tell us. I take it that it means the control of those people after
they have arrived in Australia. If it was intended to mean their introductions I have no doubt that the most of us
would be in accord, because I think every one is of the opinion that the introduction of people of any race,
especially coloured races, is a matter which should be in the control of the Federal Parliament. I take it that the
word affairs" would mean the control of alien races after they have arrived in this continent. In my opinion
the control of the people, of what ever colour they are, of whatever nationality they are, living in a state, should
be in the control of the state, and for that reason I should like to see this sub-section omitted.
MY. SYMON.-Why did you vote for the question of conciliation and arbitration being a federal subject then?
Sir JOHN FORREST.-I am not dealing with that question at this moment. I do not see myself that this
sub-section is necessary, because I hold that if it is passed the control of every one living in the state should
be within the province of that state.
And
Sir JOHN FORREST.-Yes, unless they can read and write English they certainly can be excluded. I
think that there is no desire on our part to do anything to encourage either in Western Australia, or any other part
of Australia, undesirable immigrants. I take it that under clause 52 immigration is a subject within the power of
the Federal Parliament to deal with. I would not mind if it were one of its exclusive powers. There may be
difficulties in regard to the introduction o f persons who are not altogether desirable. But I cannot for the life of
me see why we should desire to give to the Federal Parliament the control of any person, whatever may be
his nationality or his colour who is living in a state. Surely the state can look after its own affairs.
And
Mr.-KINGSTON.-No, the local laws are preserved under section 100.
Mr. REID.-Will that cover the difficulty? We will suppose that this Constitution has been created. Supposing
the Imperial Parliament has originated over this continent one executive power, having exclusive authority to
make laws [start page 242] for certain subjects. It is a very serious question whether, the moment that power
comes into force, the existing laws remain.
Mr. BARTON.-They stand to the extent to which they do not conflict with the federal law.
And
Mr. REID.-If it does, I will be perfectly satisfied, but I am afraid the words of the provision will not apply to
the clause which speaks of the exclusive legislative powers of the Commonwealth. Clause 100 speaks of All
laws in force in any of the colonies relating to any of the matters declared by this Constitution to be within
the legislative powers of the Parliament of the Commonwealth." Well, these are powers which are declared
under this special section to be within the exclusive" power of the Commonwealth.
Mr. ISAACS.-Therefore they are within the power of the Commonwealth.
Mr. REID.-If that is so, I have no objection to the clause as it stands.
Mr. ISAACS.-It prevents you amending your state laws.
Mr. REID.-There is a concurrent power as to the introduction of aliens which is available to the state.
Mr. ISAACS.-The concurrent power does not exist as to new legislation.
Mr. REID.-There is a concurrent power, first of all, with reference to immigration and emigration of
aliens.
Mr. ISAACS.-Not after the Federal Parliament has legislated on the subject.
Mr. REID.-I quite agree; but that is the whole question. All the legislation we are aiming at is legislation
preventing the introduction of certain races of aliens and their becoming members of this community.
That is the salient point. Whilst they are members of the community we can deal with them in a very ordinary
way.
Mr. ISAACS.-Not under that clause, because its power is exclusively in the Federal Parliament.
Mr. REID.-But you say that the laws in force in any state at the date of the commencement of the
Commonwealth will remain in force until the Commonwealth Parliament legislates on the subject, and if
that is so-if those laws are not annulled by the creation of the Commonwealth-I am quite satisfied to leave
the Bill as it is, because if the matter is a pressing matter at all I feel perfectly confident that the Federal
Parliament will deal with it by having it brought exclusively within their jurisdiction.
Mr. TRENWITH (Victoria).-I want to give an illustration which seems to me to prove the possible danger of
leaving this clause as it is. In Victoria we have legislated on this question. We passed a tentative measure for
three years. In one of its parts that measure deals with this question of aliens. At the expiration of three years we
shall desire to legislate on the subject again. If experience proves that measure to be a wise one, we shall
desire to renew it, which, of course, will be making a new law; but if this clause is carried as it stands we
shall then be too late.
Mr. BARTON.-Well, you had better make haste, and renew that law before the expiration of the period
within which you can re-enact such a law.
Mr. ISAACS.-But we have to wait for three years to get the experience of the law.
Mr. ISAACS.-But they have already passed a law, and I take it that if you can get an absolute majority of both
Houses directing the referendum, there is no practical difference between that and an absolute majority again
passing the law. Because they virtually passed the law as far as they could. Therefore, it seems to me there is no
advantage gained from the stand-point of desiring a better means of getting an amendment of the Constitution.
Then, I feet that it is open to the destructive criticism that it makes the law retrospective, and after the court,
possibly the Privy Council, has decided that the law is ultra vires, and people have acted on that decision, being
compelled to, act on that decision, or being compelled to refrain from acting on the decision of the court, as the
law is positive or negative; then we should have under this referendum a law made operative as from the time of
its original passing, and penalties, both personal and pecuniary, might be incurred through no fault of the
individuals who had incurred them. That seems to me to be a defect to which we cannot close our eyes.
Mr. WISE.-Besides, it would punish everybody who took the advice of a man who interpreted the law
properly.
Mr. ISAACS.-It compels everybody who has obeyed the decision of the higher courts to act, or refrain from
acting. That is a position which none of us would willingly get into, and the retrospective action is wrong.
And
Mr. ISAACS.-
Unless the honorable member is willing to amend his clause in that respect, we should only complicate matters,
and if retrospective operation were given to it we should be lending ourselves to what would be, quite
unintentionally on the part of the honorable member, a gross injustice.
And
Mr. ISAACS.-There is one additional difficulty, which my honorable friend (Dr. Quick) has suggested. The
Constitution would be deemed to be enlarged by the passing of a law, but if you wanted to alter or amend it you
could not do so.
Mr. HOLDER.-That is the point Mr. O'Connor mentioned last night.
Mr. BARTON.-That is to say that, the law having been passed, and the Constitution having been
enlarged, the Constitution has been amended.
Mr. ISAACS.-That is all. You could not alter a word of it.
Mr. BARTON.-No, you would have to take the question of whether the Constitution was really amended or
enlarged; but the decision might mean that the Constitution did not require enlargement at all.
Mr. BROWN.-It appears to me that, in his opposition to the amendment, the honorable member is not content
to leave the matter to the Federal Parliament. If we do not adopt the amendment proposed by the leader of
Convention the practical result will be that the uniform franchise must be based upon the broadest
possible suffrage now existing in any state.
And
Mr. HOWE.-

The vigorous life of the Commonwealth depends on the vigorous life of the several states that compose the
Commonwealth, and I should be sorry to see any proposal carried that would interfere with the right of
the people to adopt any franchise.
And
Mr. DOBSON (Tasmania).-If the Convention desires some compromise as between the clause as it stands and
the amendment proposed by our leader, I think that Mr. Glynn's suggestion is an admirable one. There is an
objection to the clause which makes me rather incline to the amendment of Mr. Barton. We ought not in this
Constitution to interfere more than is absolutely necessary with state rights and state affairs. The clause
as it stands will have the effect of exerting an influence in state politics.
And
Mr. SYMON.-
In Tasmania, they have had only one appeal, which took one year and nine months to decide, and, in Western
Australia, the average time occupied in deciding appeals for 23 years has been two years and one month, and for
ten years two years and four months.
Mr. BARTON.-Does not the feeding bottle question come in here? These are [start page 347] rather longer
periods than an ordinary baby requires.
Mr. SYMON.-Yes. The expense of these delays is, of course, enormous.
Mr. BARTON (New South Wales).-The suggested amendment would simply go to this extent: That if the
Parliament of the Commonwealth wish to make a uniform suffrage, it would be of necessity that that suffrage
should be an adult suffrage-that is to say, that it should include womanhood suffrage-and that, until the
Parliament of the Commonwealth so legislated, the existing legislation of any colony would be preserved,
together with such extension, but not beyond adult suffrage, as might be established. I think, on the whole, that I
might consent to that amendment. I therefore withdraw my own amendment and accept this.
And
Mr. BARTON.-Is not the right process to alter the word "qualification" to "right"?
Mr. KINGSTON.-Qualification means registration.
Mr. BARTON.-If the person has a legal right, he has to retain that legal right. Supposing he lost the legal
right, but in some mysterious way retained the qualification, it is not intended that the law should help him? It is
only intended that the law should help him if he has a legal right. I should say that, unless there is some reason
given for what we did in Adelaide, which I do not recollect at this moment, the word "right" would be the proper
word to use.
Mr. ISAACS (Victoria).-In our Electoral Act a difference exists between the right to vote and the
qualification. A man is qualified to become an elector.
Mr. KINGSTON.-This is a limitation on the right to vote.
Mr. OCONNOR.-Suppose a man has a right to vote in some colony by virtue of property. While the
qualification continues to exist you cannot take away that right.
Mr. ISAACS.-Suppose he has the right to vote by virtue of ail elector's right, and that by some accident be
does not renew his elector's right for a day. Is he to be deprived of his vote because he takes out an elector's right
the day afterwards? The qualification exists, but the right to vote does not.
Mr. BARTON.-Would you mind putting that again?
Mr. ISAACS.-A man is qualified to become an elector. He has not the right to vote until certain conditions are
fulfilled; he may have to register, or be may be struck off the roll through some accident. His right to vote is
gone through some accident, but his qualification continues. He is a person whose right would not be preserved
under this clause, because it applies to the individual-the elector.
Mr. BARTON.-If he loses the right in his own state by his own negligence, is it not right that he should lose
the right also in the Commonwealth?

Mr. ISAACS.-He may lose it without negligence; he may lose it without any fault of his own. That has been
the case with tens of thousands in Victoria.
Mr. DOBSON (Tasmania).-I was going to put the converse case. In Tasmania, and I suppose in every colony
at every election, there are a number of persons whose names are on the roll, but who have lost their
qualification. As our Electoral Act makes the roll the evidence of the qualification, you find a number of men
who have sold their property to somebody else whose names remain on the roll, but who have lost their
qualification, while the name of a man who has bought a property just after the roll has been made up, although
he has the qualification, is not on the roll. I think we ought to consider whether the word "qualification" is to
remain in the clause, because you may have a number of persons on the state rolls who have lost their
qualifications, and who therefore, under this clause as it stands, would not be able to vote in the Commonwealth,
but they would have a vote in the state. You will have a roll which governs all state elections, but which does
not apply to Commonwealth elections, and you will have to direct an officer to go through the different
state rolls, and see whether a man is entitled to vote for the Commonwealth, if you keep in the word
"qualification."
In particular in an election year it is important to accept that the High Court of Australia should be
better aware what section 41 stands for, and that as was stated; “Qualification means
registration. ” then a person who has a “right” to vote cannot be denied by the Commonwealth of
Australia to vote merely because he had not registered with the Commonwealth electoral
commission as he could still, so to say, roll up at election time and vote if he is qualified to vote but
not registered to vote for federal elections. Neither can the Commonwealth of Australia close the
rolls for registration as a person can register in any State for State elections and Section 41 then
preserve his right to be entitled to vote in federal elections regardless that the Commonwealth of
Australia (albeit unconstitutionally/illegally) has closed the rolls. What ought to be understood is
that not Commonwealth registration but State registration determines if the person is entitled to vote
within Section 41 of the Constitution.
While this voting issue (referred to also below) might be seen as getting away from the industrial
Relations matter, it is essential to understand that the Framers of the Constitution debated issues and
also made clear that
until the Parliament of the Commonwealth so legislated, the existing legislation of any colony would be
preserved, together with such extension, but not beyond adult suffrage, as might be established.
Now, this did not mean that State provisions then no longer were applicable, rather that the rights
obtained by State citizens have to be absorbed in new federal law enacted by the Commonwealth of
Australia.
Again;
If we do not adopt the amendment proposed by the leader of Convention the practical result will be that
the uniform franchise must be based upon the broadest possible suffrage now existing in any state.
During the Constitution Convention Debates the same rhetoric was used regarding other issues
within Section 51, where it was time and again made clear that States were entitled to legislate and
their legislation would be preserved under Commonwealth legislation but the State could no longer
amend its own legislation once the Commonwealth had commenced to legislate.
Mr. BARTON.-You are bound to read the two provisions together, and avoid a repugnance, if possible,
and I think you could avoid a repugnance.
Where the State already has legislation on foot and then desire to legislate on the same subject
matter is then must avoid repugnance, and as such can only legislate broadening or at the least
providing for the same rights as existed under the various State legislative provisions, but not cause
limitations.
Mr. HIGGINS (Victoria).-I should like to remind my honorable friend (Mr. McMillan) of what took place at
Adelaide. If he looks at the report of the proceedings of the Convention there, page 732, he will see that Mr.
Holder clearly expressed his views in the following words:-
What I wish is that these rights should be preserved which have been acquired up to the time that the
Commonwealth makes its franchise.
Mr. BARTON:
I should have liked to see added to this, unless indeed it is intended to be included, something which will
specify that the actual territory of any existing province shall not be subject to any kind of diminution or
absorption for the purpose of constituting new provinces, except with the consent of the legislature of the
province affected. That, sir, you may have intended in this resolution. If that is stated to be so, I am perfectly
satisfied; but I am also equally satisfied that we are not likely to base federation on the good-will and union of
the colonies unless a guarantee of that kind be provided. With respect to the question of the powers, privileges,
and territorial rights of the existing colonies, I said that I would endeavour to consider it in connection with the
question of the parliament alluded to in the first resolution under the second heading. I take it that this first
resolution must be an essential of any just union of the colonies. Unless, indeed, these territorial rights and
privileges are conserved, federation would appear to be well nigh impossible; and I think I way be pardoned for
saying that it seems an obvious construction that the powers and privileges and territorial rights mentioned here
are all those state rights as to which the hon. member, Mr. Deakin, yesterday asked the question, "What are the
state rights?" The state rights, it seems to me, are claimed by rather a narrow term. It is state interests we
have to deal with, and unless the state interests are effectually preserved in a federal scheme, that scheme
will be worth nothing, because it can be worth only so much as consists of the goodwill of the parties to it.
If that is so, all those state rights which are not to be specially assigned to the general authority must be
religiously preserved to the various states, and it will, therefore, be essential that the constitution provide-and I
take it as a necessary consequence that the constitution shall provide-for a legislative body which, in addition to
the functions of a house of representatives, and in addition to the functions of a second chamber, will also be the
guardian of those individualities, those state rights or interests. If those state rights or interests are threatened in
any legislative proposal, whether or not it is contained in a money bill, they will be under the especial care of the
federal senate; and if state rights are threatened, whether in a money bill or not, it seems to me that it is not good
argument to fall back upon the representative principle to the extent of saying that there is only one
representative legislature, and, therefore, only one which can deal freely with questions of money and taxation if
the very spirit upon which the federation rests is threatened by any scheme in a money or taxation bill.
Mr. DIBBS:
" There may be something more dignified in the use of the word "state." We are not going to become
provinces. I do not think we are going to give up the individual rights and liberties which we possess, and
which those who have gone before us have fought for, to become mere provinces under a federal form of
government. We may take the more dignified form of "states."
And
Mr. DIBBS:
I do not know the meaning of these words, and no hon. gentleman who has yet spoken has given any clear
interpretation of them. It is sufficient for us, in enunciating a principle upon which the basis of a
constitution shall be prepared, to see that the territorial rights and privileges of each colony shall be
preserved to each state but when you come to consider the condition of a surrender, and the question of
the power of enforcing such surrender is placed in the hands of the federal government, then your
provinces or your states will be no party to the proceeding.
Mr. GILLIES:
This question is in the minds of many people who are opposed altogether to the establishment of federation. One
of the first reasons they give is, "Why, if New South Wales goes into this federation, what will happen? South
Australia is anxious to have the silvermines; Victoria is anxious to go up to the Murrumbidgee; Queensland is

anxious to have some of our lovely flats." Now, is not this a pity, when we are engaged in such an important
work, the principles of which were considered by all the legislatures of this continent without a syllable having
been hinted on that subject, or, if hinted, always disallowed, and without a syllable or a hint being contained in
these resolutions, where, on the contrary, it is deliberately set out that all the rights now possessed by the various
colonies entering the union are to be preserved, except such as may be necessary to hand over to the federal
parliament. And to hand over in what way? To hand over, not generally, not using general language that
might take in a whole host of things that people did not intend; but using language so specific that only for
the purposes of federation, and no other, shall these lands be taken, and then only small pieces, and with
the consent of the state parliament. When we are told in this way that our objects are very deep and profound,
but cunningly veiled and concealed-that we desire no less than to take a large portion of the territory of New
South Wales-I say it is not fair, it is not just, that any gentleman should, even by the use of language, mistakenly
create the idea that such is the intention underlying the resolution, and the intention in the minds of members of
this Convention. It is well that wherever necessary we should emphasise the fact that the idea to which I have
referred is a mistake, and that no such thing was ever contemplated.
Sir SAMUEL GRIFFITH:
But the powers of the parliament of the commonwealth to exercise any of these functions are expressly
limited so that they cannot be put in force without the consent of the parliament of the state affected. The
rights of the state in regard to territory and everything else are preserved absolutely intact. Nothing can be done
except by the consent of the states themselves.
Dr. COCKBURN: That is to say, that those who want unification will not abandon their aim!
Sir SAMUEL GRIFFITH: I do not want unification. I strongly object to it. I am perfectly satisfied that under
this constitution there will be no unification, because state rights will be perfectly preserved. That is my
opinion, at any rate. I do not propose to make any further observations. I will merely repeat that if members of
the Convention really desire a federation they will not vote against the only possible means of obtaining it.
Mr. HOLDER:
The first of these principles is this: that we are assembled to obtain a Constitution which will give us a true
Federation, and I would like to add that what I think we want is it true. democratic Federation.
Mr. ISAACS: Hear, hear.

Mr. HOLDER: We want something which shall have two parts, which shall be democratic in the fact that it is
based on the people's will, and that in it every personal unit of the population shall be recognised and his
individuality preserved, and that, on the other hand, shall be a true Federation, in that each State unit shall also
have its individuality preserved and its independence assured. I do not think we can afford to dispense with
either of these two things. We cannot afford to dispense with the guarantee of the personal individual rights of
every citizen of the Commonwealth, nor, on the other hand, can we afford to dispense with the individual or
separate rights or interests of each of the separate States-if my hon. friend Mr. O'Connor prefers that term. We
cannot neglect to provide for their due recognition. The next principle I shall lay down is this: That in dealing
with this federal authority we should confer on it no powers which it cannot exercise more wisely and well
and effectively than the States can exercise those powers. I would even go a step further, and lay down as the
principle which should govern our conduct: To the States all that is local and relating to one State, to the Federal
authority all that is national and inter-State. I wonder whether I can secure the absolute adherence, no matter
where it may lead us, of a majority of this Convention to that principle: To the State everything that is local
and relating to one State, to the Federal power everything that is national and of inter-State importance.
And
Mr. ISAACS:
It was pointed out by what I may term the master minds of the Convention that there was no danger to the
smaller States, because the State rights, considered as rights in a lawyer's sense, are undoubtedly guarded and
preserved by the Constitution, and, as Mr. Wilson, of Pennsylvania, almost in the words of one of the
representatives here, said, it is not the question of State rights that was so much at issue, as the question of
State interests.

Mr. BARTON: I am coming to that in a minute. We have not only to attempt to safeguard State rights by
placing provisions for that purpose in the Constitution, but we must also take great care to make the machinery
as fully applicable to the preservation of those interests which are erroneously called State rights as if they also
were set down in the bond.
And
Mr. BARTON:
This is the gist of the matter, that there are two different entities to be preserved. They are both necessary to
constitute a Federation. One unit is the individual citizen, and the other unit is the State entity. We are bound to
confess that both the individual citizen as represented in the National Assembly and the individual State as
represented in the States Council must have their powers, and you must provide so that in each case the majority
of the units shall prevail. I do say that you must so protect your Constitution that you will not have a majority of
citizens dominating the State interests, or the State interests dominating the national life; but it must be so
constituted that the interests they each represent are firmly embedded in the Constitution, and you must leave the
future to the evolution of those two legislative bodies, which command the respect of both entities of the
Federation, namely, the majority of the citizens, and the majority of the States. At the same time attacks have
been made in the course of debate by the representatives of both extremes.
Mr. O'CONNOR: Sir Samuel Griffith went on to say:
I do not want unification. I strongly object to it. I am perfectly satisfied that under this constitution there
will be no unification, because State rights will be perfectly preserved. That is my opinion, at any rate. I do
not propose to make any further observations. I will merely repeat that if members of this Convention really
desire a Federation they will not vote against the only possible means of obtaining it.
Mr. BARTON: What satisfaction will there be to members to be in time to come dragged back from the
position they have taken up by the force of public opinion, as expressed by the press, by public men, and by the
Parliaments? Without successes gained under the influence of public opinion there cannot be a successful
Federation, because Federation must depend on the goodwill of the people. You cannot make a Federation
under which the people can live and prosper unless it has their goodwill.
Mr. SYMON:
The substance of the amendment, putting aside the language of it altogether, is that the Federal Parliament is to
be given unrestricted power of legis- [start page 788] lation in respect of industrial disputes, where those
industrial disputes overflow, or exercise an influence beyond the limit of a particular State. Now, venture to say,
first of all, that an industrial dispute is really a matter of local concern. In its essence and in its origin it is
a matter of local concern. And, undoubtedly, if there is one thing more than another which ought to be
preserved to the individual States it is the power of dealing-by means of conciliation, or by means of any
other method that can be adopted -with those terrible evils which sometimes flow from these disputes,
without Interference, by the federal authority. That seems to me to be an unquestionable principle, and
we ought not to give to the Federal Government the right to interfere with the self-government of a State
in this respect. Then if we did give it that power, just think of what it involves. It would not be limited to
the establishment of a court or tribunal of arbitration or conciliation. If it is to be limited to empowering
the federal authority to establish tribunals of arbitration that is one thing, but I am not dealing now with
the language of the amendment, which-as Mr. Higgins himself admits- is not very apt, but I am dealing
with the substance of it, which confers on the federal authority power to legislate in every way on
industrial disputes. That would involve-as my hon. friend Mr. Wise pointed out in a question which he
addressed to Mr. Higgins-the settlement of a uniform rate of wages applicable to the whole five or six, or it
may be, if the continent was further divided into provinces, of the seven or eight different provinces of the
group where loca l conditions might govern and differentiate the rate of wages in the different trades. For
instance, if you have regard to trade in a tropical part of Australia, you could scarcely apply the same
rates of wages as you would in South Australia. Then, again, you will be handing over to the federal
authority a two-edged sword, which might operate with equal danger in the interests of the workmen as in
the interests of the employers. It would entirely depend upon a majority of the members in the Federal
Parliament as to which way that power would be exercised. If the majority were leaning in one direction
legislation might go that way; if a majority were leaning in another direction the legislation might be
directed accordingly. -It would be impossible to see the end of it, and I submit that it is outside the federal
ambit for us to legislate in this direction. The point taken by Mr. Deakin appears to me to be insuperable.
How is this court to act? Are its functions to be limited to a particular State where the industrial dispute
occurs, or is it to travel outside the Commonwealth? There is no limitation. The way you get the test
would be by asking whether it escapes beyond the limits of the particular colony affected by the trouble or
whether it remains within.
Mr. HIGGINS: The Commonwealth has no jurisdiction beyond its own limits.
Mr. SYMON: The test my hon. friend would put would be as to the jurisdiction of this tribunal, and as
to whether the dispute affected some country outside its own particular limits. Then if you treat it
federally, how is the jurisdiction to be exercised as to the conditions of one colony to another? There can
be no industrial dispute in New South Wales or Victoria without the ramifications of the organisations of
employers or employes being utilised for the purpose of putting pressure-I am dealing with the matter
now with perfect moderation and treating it as applicable to both sides-to bear in one colony or the other,
to affect one side or the other. That would create intense bitterness in the particular colony affected. That
might happen if there was to be a strike or a lockout. I assure you I look at this thing in a most
disinterested manner. You might have such a state of tension developing as would produce something like
a civil war. We know the difficulties which arise in con- [start page 789] sequence of the sense of injustice
which may be generated either on one side or the other, and the side which feels the injustice may consider
it beyond the relief of any court; and if you give power, whether by means of a court of arbitration or of
conciliation, you are importing into the Federation an element which may result in bitterness between the
federal authority and the States when you should promote at all hazards harmony. Above all things let us
preserve to each State its own jurisdiction in this matter; let us promote conciliation, but do not let us
impose upon the federal authorities anything which by any possibility will create occasions of difference
between the State and the federal authorities. In regard to taking over the railways, I thought the Inter-States
Commission would be unadvisable as compared with taking over the railway altogether, because It might give
occasion for bitterness, and the difficulty was insurmountable. There, however, I do not think the difficulties are
insuperable. As Mr. Kingston has pointed out, we have had efforts made that should be commended with the
view of dealing in a harmonious and conciliatory spirit with difficulties which we all deplore and which,
unfortunately, often arise. I say: leave them to the States to deal with, because it is a matter of home
jurisdiction, or home rule.
And
Mr. GORDON:
And then Mr. Glynn adds a note to that report which so concisely summarises the legal position that I cannot
refrain from quoting it.
The water rights of the province to be preserved depend a good deal upon the extent of their recognition
by the other colonies. What they are according to the principle of international and private law-the analogy of
which should guide us in defining them -may be clearly stated, but the mere statement of the colonies' respective
rights in the river, unless made the basis of an agreement for the mutual exercise and respect of them, would be
of little use There is no tribunal to which a colony, on breach of its water rights, can appeal for a remedy, so that
the rights are legally ineffective.
Mr. PEACOCK: The matter is perfectly clear, and we are all practically unanimous on the point over which
we have spent an hour's talk, that the Federal Parliament should have the power of dealing with the tariff and
bounties, while every man in this Convention is of the same opinion concerning existing contracts, which
ought to be preserved for the reasons given by Mr. Barton.
Even considering federation the Framers of the Constitution provided for that “existing contracts”
were to be preserved. This did not appear to me to have been provided for by the Commonwealth of
Australia governing companies who may have contracts outstanding and may find severely harmed
by the new legislation.
Mr. KINGSTON:
When the Bill was first introduced, according to the interpretation which would be placed upon the Statute by a
court of law, any contract which was in existence at the time that the Federal Parliament legislated for the
adoption of a uniform tariff would be held to be good, and would [start page 856] be preserved, but now Sir
Edward Braddon proposes that from March 31st in this year the hands of the State should be absolutely tied.
What does that mean?
The CHAIRMAN: I would point out that the hon. member, Sir Edward Braddon, has withdrawn his
amendment.
And
Mr. KINGSTON: Then the industry would be stopped altogether. I object to unnecessary interference with
the rights of the State regulating these matters for itself; it will have a very bad effect. I speak of these matters
because South Australians take a considerable interest in them.
And
Mr. O'CONNOR: I think we are all agreed that when an officer is taken over by the Commonwealth he
should not be placed in an unfair position, or lose any rights by being taken over, because t is no fault of his that
the continuity of his service has been broken. The Bill of 1891 provided that all existing rights should be
preserved, but nothing more. That would be quite inoperative in many cases, for this reason: In the case where
a pension was due after a certain number of years' service, the period might have been almost complete to entitle
a man to a pension, but if it were not actually complete, he would have no rights whatever.
Sir GEORGE TURNER: I suggested the insertion of the words "rights existing and accruing."
The CHAIRMAN: We will now deal with the amendment moved by the hon. member Mr. Deakin.
Mr. HIGGINS: Words very similar to these were inserted in the Civil Service Act of Victoria, in 1883, with
the result that they led to great difficulties and friction between Governments and employes. Indeed no words
have been so productive of difficulty. I admit the justice of the contention of my hon. friend Mr. Deakin, that
existing rights should be preserved. But we have by no means come to the solution of the difficulty. Under our
Victorian Act we have a certain rule as to the order of promotion and transfers from one department to another.
If the rule in the Victorian Act is that you must promote within a department by seniority and fitness, and if you
have not got that rule in the same form in the other colonies, how can you apply it to the case like that alluded to
by the hon. member Mr. Gordon, where you have men in the Customs of South A ustralia coming into the same
department with the men in Victoria. Why, it will lead to legal questions which I shudder to contemplate. It will
afford litigation and cases, no doubt, for the lawyers, which I am quite sure it is our business to avoid. Although
it is a difficult matter, I do not propose at present to move any amendment. It can only be solved by a careful
attention to details, and I am suggesting that in dealing with rights and privileges, the rights and privileges that
are meant to be conserved should be defined, and that if it is intended that a man shall not have his former right
[start page 1051] to promotion within a department, say, that he was entitled to under existing law, it should be
so understood. I am sure that general words of this sort will lead to trouble and confusion.
Mr. DEAKIN: I take it that this amendment must necessarily be read to apply go far as the circumstances will
permit. It is quite clear that any inchoate right that any member of the public service will have to promotion in
the State department cannot obtain exactly under the Commonwealth. That is not a right we could seek to engraft
on the Commonwealth. Men who join the public service under the Commonwealth, if they are men of ability,
will have new fields of promotion open to them; that must weigh with those who pass out of the State service
into the larger service of the Commonwealth. We do not want by any such words as these to convey the merely
petty or technical rights, but the assurance that substantial justice will be done.
Mr. BARTON: This will tend to give the Commonwealth the service of the best public servants.
Mr. DEAKIN: I recognise the force of the hon. member's contention, and trust he will give us his help to
provide that substantial justice shall be done to all public servants, and that substantially the rights and privileges
they enjoy now will be preserved to them under the Commonwealth.
Mr. Deakin's amendment agreed to; clause as amended agreed to.

It ought to be understood that the difference is that staff actually changed employment when
changing from colonial to federal employer and as such there is a change made which itself did not
change the legislation of the colony, as now is claimed to be done to override it by the
WorkChoices legislation.
Mr. BARTON: Yes; to principles operating entirely within the State. No internal regulation can have
the effect of derogating from that power-when they come into conflict-which is reposed in the Government
of the Commonwealth to regulate trade and commerce, and preserve the equality of it. That equality must
be preserved, but if there is no conflict, and the thing is dealt with in one State simply for the management
of its own internal traffic, and not for the purpose of derogating from this absolute equality of trade,
things like that ought to be preserved.
Mr. HIGGINS: Do you think it ought to be allowed to secure its own internal traffic to go to Sydney even if it
really should go to Victoria?
Mr. BARTON: Members seem to have lost sight of the question they are discussing. Each State is primarily
entitled to the traffic within its territory, but there is a [start page 1110] salutary condition imposed that where
the inter-State traffic is interfered with, and where regulations are made so as to interfere with it, then these
things must be interdicted. If there was a portion of New South Wales which had no connection with the
Victorian railways -take that portion between Sydney and Armidale-and if there happened to be a rate imposed
there which was simply a development rate for the purpose of giving a chance to the settlers, no Commission
would interfere with it under the United States Constitution; but apart from this, if it affected inter-State trade
and commerce and intercourse prejudicially, so as to prevent the freedom of trade operating, that would be the
very point which this Commission would be appointed to deal with. We want to put a stop to things like this. Mr.
Reid quoted a case in which, on one of the Victorian railways-from Echuca to Melbourne-a bale of wool could
be carried from a point 250 miles in New South Wales territory to Melbourne by the Echuca line for 2s. 9d.,
while the grower, if he happened to be in Victoria, would have to pay 6s. 1d. to carry his wool over the line.
Sir WILLIAM ZEAL: The same thing exists in New South Wales.
Mr. BARTON: I wish the hon. member would remain quiet. He was very quiet while Mr. Higgins was
quoting instances, and I hope he will be while I am. We must have something like federation in these matters.
Let us take the return traffic on the line from Melbourne to Echuca. We find that a ton of sugar intended for
consumption at a distant point in New South Wales is carried for 11s. 9d., but if it is intended for a railway-
ridden Victorian who owns the railway he has to pay £0 13s. 5d. Let us apply the same to general merchandise.
Ever since 1894 the regulation has been that if the goods are intended for a distant consumer in New South
Wales he pays 22s. 6d. a ton, but a Victorian has to pay rates ranging up to £4 8s. 7d. I say nothing about the
rebate allowed to the carriers of the New South Wales wool. Is it not easy to distinguish between a regulation of
that sort giving an advantage to a citizen outside your own bounds over your own citizen, and at the same time
tending to impoverish the railways of your neighbor, and a regulation dealing with internal traffic intended to
develop the country? If the latter goes farther than that the Inter -States Commission must step in and see that it is
left to that.
Mr. FRASER: I cannot allow this matter to go without some explanation.
Mr. BARTON: It needs explanation.
Mr. FRASER: The low rate to Hay is undoubtedly a preferential rate to secure the trade of that district. The
rate to Cootamundra, which is some 254 miles less than to Hay, is 3d. per ton per mile, and there is no increase
in the rate to Hay. Will anyone contend that that is not a preferential rate? I do not say that each colony is not
right in gathering all its own traffic. I concede that point, but I assert all the same that if New South Wales is
going to gather all its traffic in this way Victoria should not allow her geographical advantages to be stripped
from her.
Sir EDWARD BRADDON: Alter the geography.

Mr. DEAKIN: Hand us over the territory.

Mr. ISAACS:
It is also provided that:
Such vote shall be taken in each State separately, and if the proposed law is affirmed by a majority of States
containing also a majority of the population of the Commonwealth, it shall be presented to the Governor-General
for the Royal assent, as if it had been duty passed by both Houses of Parliament, and on receiving the Royal
assent it shall become law. If not affirmed as aforesaid, the proposed law shall not become law, and shall
not be again proposed for a period of at least three years.
And
Mr. ISAACS:
It is never intended that there should be a referendum in the case of a dispute between the Ministry and
the Lower House. It is only in the case of a momentous and prolonged dispute between the House of
Representatives and the Senate that it could ever be applied, and unless the Ministry of the day have a majority
in the House of Representatives it is plain there never will be a dispute at all. Therefore it has no connection
whatever with the question of responsible government.
And
Mr. ISAACS:
It is only in case when the Chambers do not mutually pass a Bill that the referendum comes into
operation.
Mr. O'CONNOR: Would it be competent for a private member to get the referendum under this?
Mr. ISAACS: Not unless the House granted it.
Mr. O'CONNOR: On the motion of a private member?

Mr. ISAACS: There is nothing expressly introduced to prevent it here, but I have no objecti on to doing
so.
Mr. BARTON: Hon. members will recollect that there was an amendment carried in this clause at the instance
of my hon. friend Mr. Holder, to this effect:
No elector who has at the establishment of the Commonwealth, or who afterwards acquires a right to
vote at elections for the more numerous House of the Parliament of the State, shall be prevented by any
law of the Commonwealth from exercising such right at elections for the House of Representatives.
There are a number of members who did not sufficiently consider that this applied to the preservation of
any suffrage after the date of the establishment of the Commonwealth, and preventing it being interfered
with by the Parliament of the Commonwealth. There are some hon. members who are in favor of
preserving the suffrage existing at the date of the Commonwealth, and not interfering with it, so that any
person who has for instance a vote under adult suffrage or female suffrage, should not have a vote taken
away while it lasts. On the other hand the various States may amend their electoral laws after the date of
the establishment of [start page 1194] the Commonwealth; and some members who voted for this
provision have told me that they did not sufficiently consider that after the date of the establishment of the
Commonwealth the State might alter its law. Supposing female suffrage were taken away by South
Australia, there is no reason why it should nevertheless be absolutely fixed and preserved for federal
purposes until the Federation made a uniform law. The right is not to be taken away from the States
themselves to alter their suffrage before the Parliament of the Commonwealth maker such a law upon the
subject. The amendment of my hon. friend would cover this state of things: If the suffrage was extended to
females of 18 or 19 years of age, or to a certain undesirable class, that right being once made could not be
touched by any law of the Commonwealth. I have prepared an amendment which conserves what my hon.
friend wants. It is as follows:

No elector, entitled to a qualification existing at the establishment of the Commonwealth to vote at
elections for the more numerous House of the Parliament of the State shall, whilst that qualification
continues, be deprived by any law of the Commonwealth of the right to vote at elections for the House of
Representatives.
Sir GEORGE TURNER: Why not make it the suffrage at the time the uniform law is made. Whatever the
qualifications are at the time the Federal Parliament makes the uniform law, they should be preserved.
Mr. BARTON: Perhaps the hon. member did not catch what I was saying -that before or after the
establishment of the Commonwealth a State may make a suffrage which would be totally distasteful to the rest of
the colonies. I am not speaking of adult suffrage. Supposing we take some extension, which may include persons
of age whom the other colonies would certainly not include, or might include persons who are not of age. These
are the only extensions beyond adult suffrage which are likely to to be made if ever made. I am not going to say
what anyone's anticipations may be upon the question, because we all have our own opinions; but my hon. friend
has not seen this, that if the extension is made by the Parliament of the State, before or after the
establishment of the Commonwealth, and before the Commonwealth has made a law, the Commonwealth
cannot make a uniform law unless it grants all over the Commonwealth such an extension. That would
practically prevent the Parliament of the Commonwealth, if such an inapt extension were made in one State,
from ever making a uniform suffrage, unless the suffrage in this offending State were by the State itself regulated
back to something reasonable. It cannot be the intention of hon. members to tie the hands of the Federal
Parliament in that way. No one wants to interfere with the adult suffrage in South Australia, but surely it is the
right of the Commonwealth to make such a uniform suffrage as would not compel it to grant every extension that
should be wilfully and captiously made by any State.
What must be clear is that the Framers of the Constitution did seek to preserve the rights of State
citizens albeit did not desire to basically have to be subjected to some form of “wilfully and
captiously” legislation and hence the “ADULT” limitations was put on albeit not in regard of other
conditions as the Hansard records of the Constitution Convention Debates indicates.
Mr. WISE: But we have to frame a scheme which we can put forward to each state, and point out to
them that even in the future they are not going to lose their separate national identity, which will be
preserved for all time, just as it is to-day.
The Hon. F.W. HOLDER: I am glad my hon. friend has made that suggestion, because it gives me an excuse
for taking two or three moments more which I should not have occupied without good excuse, because I feel that
I have already trespassed for some time upon the attention of the Convention. But the interjection of the hon. and
learned member demands an answer, and I am prepared to give one. He says that to do what I have just
suggested would endanger the very existence of the federal parliament as such. My answer is that the state
rights, of which I am an advocate, are guarded within the terms of the constitution itself, and the
preservation of that constitution I have already stated my determination to insure. The state rights are
preserved first, as I have already put it, by the reservation to the various states of all powers not expressly
handed over to the federation, are preserved next by the absolute maintenance, except by the consent of the
majority of the states themselves, of the constitution in its present form in the form under which we federate and
that in these matters which are within the four corners of the constitution, which in no way threaten its existence
or impair its efficiency in these matters simply of dispute between the two houses, it seems to me that we do not
endanger the federation.
And
Mr. TRENWITH (Victoria)[4.55]:
Our early experience taught us that unification for all the, purposes of government was not desirable, and thus
there is in our midst, and in all the colonies, a strong determined feeling that while we have federation we [start
page 604] must still maintain the sovereignty of the states. There are some who urge that the sovereignty of the
states for state purposes necessarily implies the sovereignty of the states in larger national questions. I have no
hesitation in expressing the opinion that state rights can only be preserved, the sovereignty of the states
can only be preserved, by handing matters over to the federal parliament which cannot be dealt with by
the states themselves by making the federal objections as few as possible, but having decided what is

federal, leaving the federal power sovereign with reference to that. Thus we create two distinct
governmental entities. We leave sovereign states with power to deal altogether apart from federal
interference with such questions as they refuse to hand over. Then we create a federal power sovereign
within its own realm, competent to deal without the interference of the states as states with questions that
are handed over to it. Any other form of government will not give us what we require as shown by a
review of the history of our colonies. Having in view the influence of this proposal upon the possible success
of this federal movement, I should like briefly to review the attitude of the people of Australia with reference to
their rights and powers as citizens. In each of the Australian colonies we began with a comparatively restricted
franchise, and we developed a system of plural voting. In several of the colonies the franchise has been made
complete, unrestricted, and plural voting has been abolished; thus we see the tendency is to demand in the states
equal rights as citizens. There can be no disputing that that tendency is growing. It has been recognised that that
tendency is growing, so that the principle of manhood suffrage, and the possibility of adult suffrage have been
placed in this bill. Now, let us look at what we are doing. We are creating a dual citizenship, a citizenship which
makes a man a citizen of his state and a citizen of the commonwealth. Experience has shown us that the citizens
in the state will not brook unequal citizenship-they will not brook one voter having more power than another
voter. We have acknowledged that to be so by creating, with reference to the election of senators and members
of the house of representatives equal powers to the states within their states. Now, have we any right to assume
that when we create another form of citizenship the commonwealth citizenship the same man who would
not brook unequal citizenship in the state will submit to unequal citizenship in the commonwealth?
The Hon. H. DOBSON: It is a dual concern!
Mr. TRENWITH: I am dealing with the true form of citizenship. From the inception of the commonwealth, if
we are successful in establishing one and it depends largely upon whether we deal wisely or unwisely with this
proposal whether we shall be successful when we have established the commonwealth, every man inside the
commonwealth, in addition to being a, citizen of a state, is a citizen of the nation that is created out of this
effort.
The Hon. H. DOBSON: You want the citizen of the state to be merged into the citizen of the nation!
Mr. TRENWITH: I want him to retain his dual position; but, in relation to it, to maintain a proper principle of
equality with each other citizen. As a citizen of the state equal with any other citizen of the state, and the citizen
of the commonwealth equal with any other citizen of the colony.
The Hon. Dr. COCKBURN:
. Unless we have some great civil war, which will confuse all the issues and blur all the party lines in Australia,
and which I hope we shall never have, we shall have the same parties here as existed from the first in America.
Parties will be clearly defined: there will be those who wish to see local government, home rule, and state entity
preserved; and those who wish to see all these safeguards of the liberty of the people blurred, confused, and
obliterated in a central government, which will be situated at [start page 952] a place too far distant for the
people of Australia ever to be able to ensure effect being given to their views. I thoroughly believe that this last
proposal maybe looked upon as, indeed, a proposal for finality. It is a final proposal for the extinction of
the senate, of state rights, and of liberty.
The following is another clear example that regardless of the provisions of subsection 51(xx) as
they might be interpreted to apply it could not in anyway rob the States of their internal affairs as
like Subsection 51(i) subsection (xx) cannot interfere with entitlements and prohibitions in
subsection 51(xxxv). The debate makes it very clear that sovereignty within the State is to accepted
for so far it does not interfere with the trade and commerce provisions of subsection 51(i). Likewise
the same should be visa versa, as was intended by the Framers of the Constitution..
Dr. QUICK (Victoria)[11.38]: The last speaker, I believe, is one of the strong advocates of state rights in this
Convention. He will remember that the other day the right hon. the Premier of New South Wales challenged the
advocates of state rights to define those rights, to put in the bill such rights as they claimed were state rights, and
in this very clause 52. Now, I would remind the hon. member, and other hon. members who are interested
in obtaining, as far as possible, the right of the states to local self-government, that the question involved
in the amendment submitted by the hon. and learned member, Mr. Deakin, is one of very great
importance indeed. For my part, I think it is one of those state rights which ought to be put in the bill, and not
left in any doubt whatever.
[start page 1050]
Mr. SOLOMON: Hear, hear; but this is not the right place for it!
Dr. QUICK: The question whether this is the right or wrong place is a minor question. The question we are
dealing with now, and with which we ought, to deal, is whether this state right is to be put into the bill? I shall
support the amendment. I do not think the objection raised by the hon. member, Mr. Barton, the revenue
objection-is of sufficient importance to justify the rejection, of the amendment, and I will point out the reason
why. It is not for one moment suggested that we should take away from the, states the right of imposing liquor
laws. Each state will have the right to pass a liquor law-a law for the regulation of liquor. Each state has
that right preserved to it under its existing constitution; it consequently has the power reserved to it of reducing
the revenue of the commonwealth.
Mr. SOLOMON: Then where is the necessity for the amendment?
Dr. QUICK: The second question is, whether the state shall have the additional right of regulating the
importation of liquor. I submit that if a state has the right to regulate the sale of liquors produced within its own
territory, it also ought to have the right to regulate the sale of liquors imported from other countries.
Mr. SOLOMON: So they have at the present time!
Dr, QUICK: No; I do not think they have. I think it is necessary for this amendment to be passed to give
the states that right, for, as has already been pointed out, this bill provides that trade and commerce
between the various states shall be absolutely free, and this clause is in conflict with that provision,
consequently something must be put in to modify, the extreme words " absolutely free."
Mr. Solomon: That is the clause I say it ought to be inserted in!
Dr. QUICK: I understand that the hon. member, Mr. Solomon, is only arguing that this is the wrong place to
put it in that is a minor question; it does not matter whether the amendment is put in here or in clause 89.
Mr. SOLOMON: There are several other suggested amendments which will come in clause 89!
Dr. QUICK: That is a matter for the Drafting Committee. I think that this question is one that ought to be
considered from a general public federal point of view rather than from a revenue point of view. Serious
consequences might follow, as has been suggested by the hon. and learned member, Mr. Barton; but, in my
opinion, the question of local self-government is of more importance than the revenue question, and I
believe that there are a large number of people in the states who, if they thought they were going to be
deprived of the right of regulating the internal liquor traffic of their states, would vote against a
constitution that would deprive them of that right of local self-government. Therefore, I contend that that
right ought to be secured and placed beyond all doubt, and it can only be secured, and placed beyond all doubt
by providing for it in this constitution bill; therefore, I shall vote for the amendment.
Mr. GLYNN (South Australia)[11.42]: I think this question is a more difficult one than some of the members
seem to think. The case of Leisey versus Hardin, decided in America, has shown the necessity of our dealing
with this question, because the decision in that case was: that the sale of intoxicating liquors in, the original
packages in the state was unconstitutional and void. The object of this amendment is to get rid of the effect of
that decision.
The Hon. A. DEAKIN: There have been later decisions in cases in which the Wilson act was challenged, and
that act was up- [start page 1051] held. The Supreme Court of the United States has held that it provides a
solution of the difficulty.
Mr. GLYNN: It shows the necessity of making such a provision as the one now suggested; but if that be put
in, we shall still be faced with a difficulty out of which we should not ask the Drafting Committee to get us, for it
would impose almost a superhuman task on the Drafting Committee to say what amendments are really
necessary in this clause. I say this because there have been several decisions from 1885 down to last year on this
question under the Canadian act, and we shall be bound by those decisions, because some of them are Privy
Council decisions-at the same time, I would remark that the provisions of the Canadian act are not exactly

the same. They are for the regulation of trade and commerce, not between states and states, but with other
countries; nevertheless, if hon. members read them they will find this-
The Hon. A. DEAKIN: In Canada the central government retains the residue of powers; here they do not!
Mr. GLYNN: I understand that. One of the grounds of the decision is that a license which amounted,
practically, to a prohibition of sale was void-that the residue of powers remained with the central government,
and that the local legislatures were limited to such powers as they got by express delegation. But beyond that,
there were other grounds: that they had no such power, because it was an interference with the powers of direct
taxation conferred on the central government. The upshot of the decision in Canada is that a license that
amounts to a prohibition of sale is illegal. I merely mention this for the pur pose of showing that you cannot,
without considering, this in conjunction with the American cases, say what ought to be done, because clause 89
must be read in conjunction with the sub-clause before us. That is an addition to our difficulty. It does not
exist in the case of Canada, and I say, therefore, that we ought to pass this amendment, and ought also to accept
the suggestion of the hon. and learned member, Mr. Barton, and postpone the further consideration of the matter
until we meet in Melbourne, because if hon. gentlemen will look through a synopsis of the cases to be found in
Wheeler's "Confederation of Canada," published only last year, they will come to the conclusion that it is
exceedingly difficult to frame such an amendment of this clause as will place beyond all doubt the question
whether the power of prohibition by the states of the sale of intoxicating liquor within their boundaries is
preserved.
The Hon. H. DOBSON (Tasmania)[11-45]: I hope that the Committee will agree to the amendment suggested
by Victoria, and which has been supported by the hon. and learned member, Mr. Deakin. I think we shall make a
very grave mistake if we leave too many important and contentious matters to be discussed in Melbourne.
Suppose we now turn out a completed bill save and except the financial clauses we shall have all our work in
three or four weeks in Melbourne to adjust those, and put the finishing touches to the constitution.
The Hon. E. BARTON: There is no reason why we should not sit five or six weeks, or even longer, in
Melbourne!
The Hon. H. DOBSON: I think that we shall get very tired if we sit five or six weeks in Melbourne during the
hot summer weather. We are doing our work so well that we shall probably not have to sit so long as that in
Melbourne; but, of course, we shall sit there longer if necessary. This question is so important and
complicated that I think the Drafting Committee ought to have a little more instruction the question of
prohibition. It appears to me that those people in all [start page 1052] our states who have quite as earnest
convictions on this matter as some of our friends have on the question of deadlocks, will not be satisfied if they
think the federal constitution is to put a stop to their getting a measure of prohibition. I presume that a zealous
teetotaller is always looking forward to the time when be will convert his fellowmen, and win success, and get a
measure of prohibition, and, in my opinion, our constitution will have a very great blot upon it unless we do,
apart from the question of revenue, provide some means to enable the states to prohibit the importation of liquor,
and I think it would help a solution of the matter very much if the constitution at the same time said that a colony
like South Australia or Victoria, which is a wine-producing colony, shall not have that important industry taken
away from it, but shall be able to manufacture wine, beer, ale, or spirits, but for export only. So I really think the
Drafting Committee have to face an important question, not simply that of the carrying of this amendment,
which is a very simple matter. They have to consider the question of providing for the question of prohibition,
and, at the same time, for providing for the protection of the natural industries of South Australia and Victoria,
and making the sale of what they produce in harmony with the prohibition law of any state.
The Hon. S. FRASER (Victoria)[11-47]: I shall vote for this addition to the bill. In the province of Nova Scotia,
in the Dominion of Canada, there is prohibition, and I think it is only right that each colony should have the
power to regulate its own internal affairs.
The Hon. Sir W.A. ZEAL (Victoria)[11.48]: I am in favour of this amendment. I would be willing to follow the
advice of the hon. and learned member, Mr. Barton, had not a very important provision been passed by the
Committee last night in regard to the appointment of people to high positions, which I shall oppose most
strenuously when it comes on for consideration again.
The CHAIRMAN: The hon. gentleman cannot discuss that matter now.
The Hon. Sir W.A. ZEAL: I seldom address the Committee, and I think that I might be allowed a little
latitude in explaining why I am going to vote as I shall on this occasion. I do not think that any hon. member will
impute to me that I have taken up too much time, It has been my continual study throughout the sittings of this
Convention not to repeat myself. I am sorry that while I was absent last night the clause to which I have referred
was passed. In the present instance I shall vote for the amendment.
The Right Hon. G.H. REID (New South Wales)[11.49]: Since it is evident that a serious vote must be given on
this matter, I wish to add a word or two to what I have already said. In the first place, it is clear that under the
provision that all the powers that are not expressly given to the federation are reserved to the states, the
power of regulating the consumption of intoxicating liquors is reserved to each state.
The Hon. E. BARTON: Quite so!
The Right Hon. G.H. REID: Therefore, the question about customs revenue is irrelevant. That is a question
of the power that already belongs to the state, it is not a question we can consider at all. The constitution is
so framed that these colonies will have the power to do what they like in reference to the consumption of
intoxicating drinks within their own boundaries. Therefore, the revenue question is out of court. It is an
incident of what we are doing. The value of these observations is that they direct the attention of the Finance
Committee to a state of things which must be specially provided for. Putting aside the revenue matter, as a matter
for the Finance Committee to [start page 1053] deal with, we have simply to face the proposition that we must
make the constitution clear upon that point about which there is no real doubt as to our intentions. Under these
circumstances, although I would prefer the matter to be made clear in another clause, as there is going to be a
division upon the merits of the case, I shall vote for the insertion of the words.
The Hon. E. BARTON (New South Wales)[11.51]: I intend to vote against the amendment. The question of the
customs revenue cannot be lightly disposed of, because as the matter stands now, the state has power to deal with
the consumption of liquor within its borders. Under the constitution as it stands, it would be in the same position
as the state of Iowa with regard to the law which it passed, that is to say, it might not be able to deal with the
importation and sale of original packages, but would still have entire right to control consumption. There may be
a great difference between the two powers, and it would make a great difference to the customs revenue-a
difference which I do not think we can ignore. With regard to the general merits of the question, I think it
would be unwise and impolitic to specially enlarge the powers of the states in dealing with the sale of one
class of goods, while their powers are limited with regard to the sale of every other class of goods in
relation to the condition of internal politics. If the subject of a sale is anything apart from intoxicating
liquors-it may be a poison, or one of a thousand other things-while the state can deal with its sale and
consumption within its borders, it cannot prohibit its importation if the commonwealth is to regulate
trade and commerce. If you are to take away this power of regulating trade and commerce from the
commonwealth in respect to one class of articles, it would be logical to take it away in respect to others.
Imagine the state of chaos which that would produce. You would have given the commonwealth a nominal
power to deal with the regulation of trade and commerce; but with the other hand you would have taken
it away. If you take it away in regard to this large class of subjects you might take it away with regard to
all subjects.
The Hon. I.A. ISAACS: There is no power in the commonwealth parliament to deal with this matter, though
there is in the federal parliament of the United States!
The Hon. E. BARTON: There is power to regulate trade and commerce, though clause 89 stands somewhat in
the way, and I propose to amend that clause so as to prevent the commonwealth parliament from being denuded
of the powers it would otherwise have. To give the states power to deal with the importation of a class of goods
which are the foundation of the customs revenue in all the colonies, would be an anomalous position to set up. If
this power is given in respect to the consumption of alcoholic liquors, you may as well grant it in respect to
everything else, and then what becomes of the regulation of trade and commerce by the commonwealth? I
suggest that clause 89 should be amended in some such way as will leave the commonwealth in its proper
position as the regulator of trade and commerce. Let the states be allowed to deal with the consumption of
intoxicating liquors; but do not let them interfere with the trade and commerce of the commonwealth. It
does not correctly state the position to say that, by carrying the amendment, you put matters in the position in
which they are to-day. Under the commonwealth matters cannot be in the position in which they are to-day.
There must be these alterations which are necessitated by the solidification of the states for some purposes, one
of which is to give power to the commonwealth to regulate trade and commerce so as to prevent its being [start
page 1054] hampered by the individual act of anyone state. It is against all principle, and impolitic, to impose
a disqualification with regard to this class of goods, which you do not impose with regard to other classes
of goods. It would be much more logical to allow the commonwealth to legislate upon the consumption of
alcoholic liquors; but that is a power which, I take it, the states will not surrender. In that case, let them be
satisfied with the power to deal with the consumption of alcoholic liquors, which they can deal with effectively.
Do not let them ask power to control the action of the commonwealth in respect to one of the most essential
powers of the commonwealth. If this power is to be given up in regard to one class of goods, let it be given
up in regard to all; but, if it is to be retained at all, let it be retained in regard to all.
The Hon. A. DEAKIN: It is only in regard to intoxicants that a question of principle arises!
The Hon. E. BARTON: I know that a great many people think that it is against morality to consume alcoholic
liquor, while others are actuated by the idea, "I cannot drink, therefore you must not." I am not going to discuss
those parts of the question. I want to leave the liquor question as a matter of internal state regulation out of
consideration altogether. What I suggest is that the power to regulate consumption which the states possess
today, and would possess under the commonwealth, will enable them to do effectually what is wanted. If you
give them the power to prohibit importation, this may happen: Goods destined for transit from state A to state C
may in some moment of fanaticism be prevented from passing through state B, and thus dealings between state
A and state C may be rendered impossible, or else very inconvenient, because of the long round about deviation
which would be required. Such a state of things would set at nought the powers of the commonwealth to regulate
trade. I submit that this cannot, and ought not to be allowed, and that we shall act wisely in negativing the
amendment.
Mr. MCMILLAN (New South Wales)[11.57]:I hope that in discussing this matter our views in regard to the
liquor traffic will be carefully excluded. I do not know how this question has been dealt with in other parts
of the world; but I can see that by giving the states power to forbid the import of liquor you have an
absolute abnegation of intercolonial free-trade. We know very well that in dealing with the customs, if you
have an ad valorem duty upon only one article, it leads to a wholesale system of espionage, delay, and
inconvenience. I fail to see how you can give power to the states to prevent the importation of liquor unless you
give them full power over the means of transit, over their borders. Although an affidavit might be given that
there was no spirit on board, a train might be stopped on the border while a search was made under the
reasonable belief that there was liquor on board. You might have the whole of the border trade of a state
interfered with in that way by the officers of the state. Such a state of things would lead indirectly to the re-
erection of what would be practically custom-houses on the border. A vital principle connected with
federation from the national and commercial point of view is that it will give absolutely free intercourse
between the states. Let the states who want to prevent the consumption of intoxicating liquor within their
borders provide that all spirits shall go into public bonds. We can make the selling of spirits a matter for the
states to regulate.
An HON. MEMBER: That is all we ask!

Mr. MCMILLAN: Let the states have power to deal with the consumption of intoxicating liquors within
their borders; but do not give them a general power to ransack every means of communication [start page
1055] across their borders. No doubt great misconstruction will be placed upon the vote which is to be given
upon this question. I am anxious that every state should have its own autonomy. I am very anxious that the
liquor traffic should be regulated on purely democratic local option principles. At the same time, I think that by
doing it as attempted it might be a great blow at intercolonial free-trade.
And
Mr. SOLOMON: Is that necessary at all? Is there any portion of this bill which gives over the power of the
states to the commonwealth to regulate the traffic in liquor inside the boundaries of the states?
The Hon. I.A. ISAACS: Yes, in clause 52. The American decisions are very much in point; but the Canadian
decisions do not apply at all. Clause 52, when it confers on the commonwealth parliament power to deal with
and regulate commerce between states, impliedly by that excludes the states from making any regulations with
regard to inter-state commerce, otherwise they might throw everything into disorder.
The Right Hon. Sir E. BRADDON: But not traffic within their own boundaries?
The Hon I.A. ISAACS: No; but the United States decisions are that it is still inter-state commerce, so long as
the subject of that commerce remains in the hands of the original importer, and in an unbroken package.
Mr. Symon: What you want to do is to regulate the consumption. That is not interfered with!
The Hon. I.A. ISAACS: As soon as the liquor comes into a state, and goes into consumption or use in the
state itself, the state shall have the same power to make regulations with regard to that use or consumption as it
can with regard to liquor in its own territory.
Mr. Symon: Where is there anything in the constitution to take that power away?

The Hon. I.A. ISAACS: I pointed out earlier in the day that clause 52, subclause I, prevents a state from
making any regulation with regard to importation.
And
The Hon. E. BARTON (New South Wales)[2.41]: The insertion of the word "ocean" is intended to preserve
the line of demarcation that generally exists between federal powers and state po wers, the commonwealth
being intrusted with matters that are external, and matters of internal regulation, being intrusted to the
several states.
And
The Hon. I.A. ISAACS (Victoria)[2.48]: I hope that the hon. and learned member will not move an amendment
to that effect. I think that the meaning of the word "quarantine" is pretty well known. There is no doubt
that leaving the sub-clause as it is preserves to every state the power that it now has to make laws in
relation to all such subjects. It does not vest an exclusive power in the commonwealth to pass such laws. The
state can pass its own law, and alter it as it pleases; but I think it is well to do as was done in the Canadian
act in that respect-to give a power which the commonwealth might, in case of emergency, employ for the
sake of the general health power to make a law respecting quarantine, as it is generally understood, so as
to preserve all the ports of the commonwealth, not only from infection from abroad, but also from the
danger of any infection which might have reached one port of the commonwealth spreading to the rest of
the commonwealth. I think that there is no great harm in retaining the word "quarantine," and that, if we were to
eliminate this word, the day might come when we would very much regret having done so.
Sir JOHN DOWNER.-
We are handing over to a Federal Government certain limited authorities in the easiest way, preserving to
ourselves all the authorities which we think we can better exercise.
And
Sir JOHN DOWNER.-
We keep our property; we are left to the free exercise of our brains and bodies; there is no interference
with the individual; state rights are to be preserved. Surely, collaterally with that, state rights ought to be
preserved too .
Mr. KINGSTON.-Section 100 preserves the existing legislation.
Mr. DEAKIN.-Yes; and section 101 provides that when a law of a state is inconsistent with a law of
the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be
invalid.
Therefore, Colonial laws would remain but State legislation subject to Commonwealth law.
Mr. REID (New South Wales).-I have already spoken on this matter so fully that I certainly do not propose
now to say very much, but I do regret that the Premier of South Australia does not pay some attention to a set of
considerations which, although they do not affect his colony, are very serious matters in one of the colonies
invited to join in this union. And I must press on my right honorable friend to recollect that the very basis of this
attempt at federal union was that, as far as possible, consistently with federal union, the rights of the several
states, and the sovereignty of the several states, should be preserved. Indeed, the original resolution, upon
which the whole movement was based, spoke of the voluntary surrender of rights and privileges. We have gone
largely forward up to this point, with a great deal of success, on these essential lines. We have endeavoured to
deal with broad principles, irrespective of the way in which they may affect this or that part of Australia. For the
sake of these broad principles we have all been willing to leave the actual working of the Constitution, in any
precise direction, to the fortune of party warfare in the constituencies after federation is accomplished.
Mr. HIGGINS.-
We must see to -day that the rights of individuals, even unpopular individuals, are preserved in the
Constitution. I think Sir John Forrest said that I personally had not got sufficient respect for the rights of
individuals.
Mr. HIGGINS (Victoria).-I should like to remind my honorable friend (Mr. McMillan) of what took place at
Adelaide. If he looks at the report of the proceedings of the Convention there, page 732, he will see that Mr.
Holder clearly expressed his views in the following words:-
What I wish is that these rights should be preserved which have been acquired up to the time that the
Commonwealth makes its franchise.
Mr. OCONNOR (New South Wales).-I do not think that anybody can doubt the absolute correctness of the
criticism of the leader of the Convention upon the words of sub-section (12) as they stand in the Bill at the
p resent time, as a matter of law. But the debate on this question has satisfied me that there are many practical
reasons why those words should remain unaltered. I am sure Mr. Barton only expressed his opinion of the words
themselves, and that be has no very great wish either one way or the other. I will state briefly why I think sub-
section (12) should remain as it stands. We have, over and over again in this Convention, shaped our course by
considerations as to the practical condition of things. It may be that the words in question are vague, but we find
in exactly the same words a distinction, accurate and definite, of the sphere within which this jurisdiction has
been already adopted in some Acts passed by the Federal Council, which have been in force for over ten years.
During those ten years the fisheries of Western Australia and Queensland have been controlled by those two
colonies respectively, and those colonies have exercised very important duties in regard to the fisheries in
question. I take it that we shall wish, as far as possible, in regard to all matters handed over to us that we should
occupy the place of the Imperial Government, and be able to assure Queensland and Western Australia that we
will not derogate from their power of dealing with these matters. Now, although we have preserved, by an
early clause in this Constitution, all rights existing under Acts passed by the Federal Council, there would
be a danger to those rights if those laws could be amended or dealt with in any way. Interests have grown
up, these spheres of influence have been actually used, and the laws of these colonies have been brought to
bear on them. Therefore, I think it would be undesirable, by altering the wording of this Act, to throw any
doubt on the exercise of that jurisdiction.
And
Mr. BARTON.-We ventured to make an addition to the clause which, I think, will meet with the approval of
honorable members. There will be cases in which officers will be transferred to the Commonwealth, not with the
department in which they have been serving; their departments may not be transferred at all, but they may be
officers necessary to the service of the Commonwealth, and there may be the consent of the Governor in Council
of the state obtained to their being transferred. In that case they should not be prejudiced either . I think
honorable members will admit that if a case of that kind arises, and the Commonwealth wishes to have the
services of an officer, and it is arranged with the state he is serving that he shall be transferred to the
Commonwealth, that transfer should not be carried out without his rights being preserved.
Mr. MCMILLAN.-Then I say, leave it alone. We are dealing now with, a written Constitution, and with a
Federal Government, in which the rights and, privileges of the states are preserved. If, after all these
arrangements and all this circumlocution, a law is not passed it will be better to wait until the people have made
themselves thoroughly acquainted with the subject. One of the great curses of modern politics is the desire to
legislate on everything.
Mr. WISE.-My friend has anticipated me. That helplessness drives the American to the referendum
because of the utter ineffectiveness of the political machinery. Again I will quote-and it is the only
quotation I shall make-a passage from the work of Mr. Cree, which I recommend to the perusal of all
interested in the subject. Although his book is written in the strongest terms in advocacy of the
referendum, every argument he uses shows that his advocacy rests on a confessed mistrust of Parliament,
which cannot, in any degree, be applied to a country where the people are proud of their Parliaments. Mr.
Cree, after speaking of the corruption and tyranny of the party machinery, and the inability of the
individual voter to make his will felt in consequence of the tyranny, proceeds:-

Party government means supremacy of party leaders. In those leaders is practically vested the power to
subjugate all the official agencies of the State to their will, so that such will becomes that of the State, and
government by the people is only a fiction instead of a fact. The leaders of parties frame all political issues,
declare all party policies, name all candidates for office, and the electors but choose between the rival
organizations. But that is no more than a power to say to which oligarchy of managers or "bosses" they will
confide the control of the State.
Under such a system the party, leaders do not need to consider public opinion, further than its approval or
consent may he necessary to secure the adoption of their avowed purposes, and the election of themselves to
power. But great and important as is this power of ratification or rejection of party programmes and party
leaders, on the part of the voters, it leaves them without any real positive political initiative, and limits them to a
sort of negative action. A choice at the elections between corporate parties is all that they possess, and this not
only does not involve, but actually excludes, all expression of opinion on the part of the voters unless the
contending parties represent clearly-defined conflicting policies on specific questions, or really stand for
permanent diverse views and tendencies. The contention of the parties for the favour of the electors assumes the
fact of the existence of one or the other of these supposed cases. On no other assumption can the existence of
party be for a single moment justified.
But so far as representing a clearly-defined line of action on specific measures of policy is concerned,
we cannot recall a single case in the history of the United States where any great national party has done it.
And
Mr. WISE.-
That distinction is, that this is a union of equal states, whose equality, or, at all events, whose individuality, is to
be preserved so far as is compatible with the higher interests of the community. Then there is another assumption
on which we proceed, but which, I think, my honorable friend ignored. That assumption is that federation is
going to be worked by men who wish to keep the Federation together, and not by men who are going to use all
their ingenuity to destroy it.
Mr. BARTON.-
choose to change it, is contained in the provision that the interpretation of the Constitut ion by the High
those principles are enforced, will all have been the work of Australians.
And
Mr. BARTON.-
Providing, as this Constitution does, for a free people to elect a free Parliament-giving that people through
their Parliament the power of the purse-laying at their mercy from day to day the existence of any
Ministry which dares by corruption, or drifts through ignorance into, the commission of any act which is
unfavorable to the people having this security, it must in its very essence be a free Constitution. Whatever
any one may say to the contrary that is secured in the very way in which the freedom of the British
Constitution is secured. It is secured by vesting in the people, through their representatives, the power of
the purse, and I venture [start page 2477] to say there is no other way of securing absolute freedom to a
people than that, unless you make a different kind of Executive than that which we contemplate, and then
overload your Constitution with legislative provisions to protect the citizen from interference. Under this
Constitution he is saved from every kind of interference. Under this Constitution he has his voice not only
in the, daily government of the country, but in the daily determination of the question of whom is the
Government to consist. There is the guarantee of freedom in this Constitution. There is the guarantee
which none of us have sought to remove, but every one has sought to strengthen. How we or our work can
be accused of not providing for the popular liberty is something which I hope the critics will now venture
to explain, and I think I have made their work difficult for them. Having provided in that way for a free
Constitution, we have provided for an Executive which is charged with the duty of maintaining the
provisions of that Constitution; and, therefore, it can only act as the agents of the people. We have
provided for a Judiciary, which will determine questions arising under this Constitution, and with all
other questions which should be dealt with by a Federal Judiciary and it will also be a High Court of
Appeal for all courts in the states that choose to resort to it. In doing these things, have we not provided, first,
that our Constitution shall be free: next, that its government shall be by the will of the people, which is the just
result of their freedom: thirdly, that the Constitution shall not, nor shall any of its provisions, be twisted or
perverted, inasmuch as a court appointed by their own Executive, but acting independently, is to decide what is a
perversion of its provisions? We can have every faith in the constitution of that tribunal. It is appointed as the
arbiter of the Constitution. It is appointed not to be above the Constitution, for no citizen is above it, but
under it; but it is appointed for the purpose of saying that those who are the instruments of the
Constitution-the Government and the Parliament of the day-shall not become the masters of those whom,
as to the Constitution, they are bound to serve. What I mean is this: That if you, after making a
Constitution of this kind, enable any Government or any Parliament to twist or infringe its provisions,
then by slow degrees you may have that Constitution-if not altered in terms-so whittled away in operation
that the guarantees of freedom which it gives your people will not be maintained; and so, in the highest
sense, the court you are creating here, which is to be the final interpreter of that Constitution, will be such
a tribunal as will preserve the popular liberty in all these regards, and will prevent, under any pretext of
constitutional action, the Commonwealth from dominating the states, or the states from usurping the
sphere of the Commonwealth. Having provided for all these things, I think this Convention has done well.
The question for us is this-the question for the electors is this: Is this a Constitution which will enable a free
people to come together, and in community together to work out their own destiny? Who can deny it? Is it a
Constitution which gives all reasonable and liberal guarantees of freedom? That can only be answered in one
way. Is it a Constitution the action of which, until amended by the people, is preserved and safeguarded? There
is only one answer to that. Is it a Constitution which the people themselves, by their will expressed by their
Parliament and themselves, are able to alter to suit their needs under conditions of reasonable thought, without
unreasonable difficulty? There can be no answer but one to. that question. Then, if the Convention. has done
those four things, I take it that, it has done its work.
The following should be held in consideration where Mr Howe pursued pensions in that
corporations would go bankrupt, etc.
His Honour CALLINAN J stated;
QUOTE
The founders would have been well aware of the capacity for causing national financial consequences, of
corporations and their predecessors, various forms of partnerships [1080] . The collapse not just of banking
corporations but also of land and pastoral corporations would have been very fresh in their minds when
they wrote the Constitution. As I have said in other cases[1081] , judges, as unelected members of judicial
institutions, should be careful about forming views about social and economic conditions. But even if they
can, do or even must, in some cases for some purposes, they, including judges of this Court, should not use
those views to alter the Constitution.
836 It is unnecessary to repeat what was said in the speeches for the bills for the referenda seeking a corporations
power broad enough to cover industrial affairs in the way that the Act here seeks to do. All that I need do is point
out that almost invariably, the speakers and Parliament itself, repeatedly, accepted that the relevant constitutional
power did not exist.
837 It is necessary to consider the Convention Debates on the topic.

END QUOTE
Well, without seeking to quote the extensive text about how pensions came about by the collapse of
corporations, etc, as it has already been extensively canvassed in my already published books, I do
however take up the invitation to consider the Hansard records of the Constitution Convention
Debates.
Mr. GLYNN (South Australia).-I should like to ask a question with regard to clause 75, as to whether it is
intended to leave the right of appeal from a state or the Federal High Court itself direct to the Privy Council, as it
stands in the Bill, or whether the matter can be subsequently opened by the Parliament?
Mr. BARTON (New South Wales).-I am afraid that if I were to answer questions as to what is intended to be
done, I should expose the Drafting Committee to a flood of interrogations. I can only say that what we intend
to do is to carry out the decisions of the committee. Of course there are one or two cases in which the [start
page 2439] decisions which have been arrived at require a certain amount of interpretation in the light of
the debates, and in those cases we shall take what was said, as well as what was put in the Bill, for the
purpose of ascertaining what the movers of provisions desire. In the case of the proposal my honorable friend
carried, and which was put as a proviso to clause 74, it is evident that the words as they appear are only in
the nature of instructions to the committee, and they will have to be interpreted in the light of statements
made by my honorable friend in answer to inquiries by me. That is the course that will be pursued. When an
amendment, as carried, is intended only as a suggestion to the committee, it will be interpreted in that way.
It means that some parts of the Constitution, such as Section 44 of the Constitution, were revamped
by the Drafting Commission but not intended to alter its meaning as it was prior to the revamping of
the various clauses it had about “office of profit” in chapter 44 relating only to Commonwealth of
Australia office of profit and not as was claimed by the High Court of Australia in Sykes v Cleary it
related to State “office of profit”. Likewise Sue v Hill was wrongly decided due to incorrect
interpretation by the High Court of Australia. I view that if after more then one hundred years the
judges cannot even get the basics rights no wonder they made a total mess of the Amendment Act
regarding WorkChoices legislation.
* Surely you cannot expect the judges to research the entire debates to try to get an understanding of
what constitutional meanings are?
**#** I see no justification in them taking out of context material and by this purport constitutional
provisions to have some kind of meaning where in fact this is contrary to the intentions of the
Framers of the constitution. If they can’t handle the job then they should vacate their positions but
they cannot argue, as John Howard too often does, that he didn’t know, no one told him, etc. they
are appointed to do a specific job and that is to appropriately interpret the meanings of the
Constitution and they are getting paid for this to do so and as such must be competent in doing so.
In Victoria we had a Chief Justice retiring from the Supreme Court of Victoria which I understood
actually never was a lawyer. And, I see no need for a judge to having to be a lawyer, in particularly
not if we end up with the sheer and utter nonsense such as in Sue v Hill where the Court did not
hand down a decision upon LEGAL FACTS but upon LEGAL FICTIONS.
It must be considered that the Framers of the Constitution intended that provisions in the
Constitution should be read together. Various other statements recorded in the Hansard records of
the Constitution Convention Debates underline this to be so as to subsection 51 that they must be
read together to interpret the intentions of the Framers of the Constitution. Therefore Subsection
51(xx) must be considered also but not restricted only to subsection 51(xxxv) but also with any
other constitutional provision, including for example Section 116.
To give a better perception as to how this statement was arrived to I am quoting more extensively
from the Hansard below. Therefore where the usage of subsection 51(xx) would be repugnance to
the application of subsection 51(xxxv) then subsection 51(xx) must be given a narrowed application
to avoid the prohibition specifically stated in subsection 51(xxxv) to be offended against. It could
not be ignored that the Framers of the Constitution when framing this Constitution were aware of
what they were prohibiting in subsection 51(xxxv) and having done so could not be held to have
been ignorant to what they intended with subsection 51(xx) and as such their intentions, many of
which were expressed in statements quoted in this document, then must be appropriately
considered.
Mr. REID.-I do not like to refer to a certain burning question, although it has ceased to be so burning now.
But take the case of the rivers. Irrigation is within the sovereign powers of a state. As to navigation, the
same subject is within the sovereign powers of the Commonwealth. In administering the respective laws,
things may be done which on one side or the other may be considered to be wrong. As the Bill at present
stands, if the law of the state with reference to irrigation conflicts, and is inconsistent with the law of the
Commonwealth with reference to navigation, it is simply sufficient to point out to the court that the state law is
inconsistent, and down goes the state law, apart from any element of equity or fairness. And, although there
might be an opportunity to so ad just the respective claims as to do justice between them without injuring either,
none of these considerations would come in. It would only be necessary to point to the Commonwealth law, and
to show that the state law was inconsistent with it.
Mr. HIGGINS.-It must be a valid Commonwealth law.
Mr. REID.-Yes, but a valid Commonwealth law may in the interests of navigation prevent irrigation. It
may absolutely prevent any water conservation. I do not suppose such a thing would ever happen, but I
only refer to it by way of illustration. If it did happen the aggrieved state, on which a terrible injury would
be inflicted, has to appear before the High Court to complain of this. It would be told, it is true this is an
abominable wrong, and we only wish we had power to redress it; but this Act deliberately states that when
the federal law comes into collision with a state law, passed in the exercise of the state's sovereign powers,
still that law must go down, just as if it was an interference with a subject handed over to the
Commonwealth. There is no distinction between the two cases. That is a very dangerous position of
supremacy in which to put the Commonwealth. It practically has this effect, in that very wide and
nebulous area where the sovereign, [start page 2270] rights of the state and the rights we wish to hand
over to the Commonwealth come into collision, without any sort of consideration to the rights or the
wrongs, the law of the states as to its sovereign powers must go down. If we intend that, well and good. But
if it is inserted in the Constitution I can conceive a very great handle being made of it by those who would
say that we have to leave independence to the states in connexion with every subject not handed over to
the Commonwealth, and that, while affecting to do that, we practically put the states in great danger,
because their laws made within their sovereign powers may happen to come into collision with the
Commonwealth law.
Mr. OCONNOR.-Would not that contention be involved in the interpretation of clause 99?
Mr. REID.-That is where it seems to me the difficulty would come in. In a clause before 101, which in
my copy of the Bill appears as clause 103, it saves the Constitution of the states in respect of all matters
not handed ove r to the Commonwealth. But when we turn over the page, and come to clause 101, we find that
it practically overrides this provision, and says-"True, we leave to you all those rights which are not taken away
from you in this Constitution as matters of legis lation; but as to all those rights we have left to you you must hold
them subject to the risks of a federal law coming into collision with them." I am speaking of a federal law on a
federal subject coming into collision with a state law. In case of that collision the sovereignty of the state goes
without any hearing on behalf of the state. The court would simply have to decide that the state law came into
collision with the federal law, or was inconsistent with it, and then the state law is out of court without any
chance of redress. Do we propose to leave the Constitution in that state? If so, section 101 overrides the previous
section, and makes all those rights reserved to the state subject to collision with Commonwealth legislation on
other matters, and in such case the Commonwealth law shall prevail. Let us take the addition to clause 52, which
was made at my instance, about the waters. That is, a case where there are two jurisdictions over the same thing
for different purposes. I am afraid that those words added at the end of section 52 would be absolutely in conflict
with section 101. If the Commonwealth legislate so as to prevent, in the interests of navigation, water
conservation-a thing we do not conceive of, but which may be used as an illustration-then the state would
go to the High Court and complain of the action of the law of the Commonwealth. The state would
contend that that Commonwealth law abridged the rights of states in regard to water conservation, as
section 52 expressly provides that the rights of the state to a reasonable use of the water shall not be
abridged. The state would come into court complaining that the law of the Commonwealth had destroyed
the special provision made in section 52; and the court would then have to look at the Commonwealth law,
and then at the state law. There might be a state law sanctioning a work of water conservation, and there
might be a Commonwealth law forbidding water conservation in that part of the colony on the ground
that the interests of navigation required that the whole of the water should be kept in the river at certain
times of the year, or all the year round. The High Court, under section 101, would find that the state law
was inconsistent with the Commonwealth law, and that the Commonwealth law was inconsistent with the
state law. What is the provision in section 101? The section reads-"When a law of a state is inconsistent
with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the
inconsistency, be invalid." If the words are added which I propose to add, the question would assume a
different complexion. My [start page 2271] proposal is that at the end of the clause the words be added-
"Laws made by a state concerning matters over which the Commonwealth has no power to legislate
excepted." With this amendment the High Court would find that a law on water conservation, being on a
subject on which the Commonwealth has no right to legislate, would not be subject to the terms of this

section. There is no doubt that by this amendment the respective laws would be put in a difficult position,
and the question would arise, what is to be done? As the Bill stands, no such question could arise in that
respect, and it would be infinitely more convenient to leave the Bill as it is, when the whole matter could
be decided on definite simple legal grounds. But I must point out that, although the present form of the
Bill is far more convenient, and I would gladly leave it as it is, it involves very serious consequences -most
serious consequences to the states, especially in the particular matter to which I have referred. I feel that
the amendment which was put in, and which has done so much to remove strong feeling on the important
question of water conservation, would be valueless. When any dispute arose, and a state law came into
conflict with a Commonwealth law under the navigation provision, I feel that section 101 as it stands is
really worth nothing, and could not prevail against the Commonwealth law.
Mr. SYMON.-What do you propose to put in?
Mr. REID.-I admit that this is a very, difficult matter, and I have thought over it a good deal. I propose
to give the High Court a special jurisdiction when such difficulties as that arise, so that in point of fact the
High Court shall have power to adjudicate or act as arbitrator so as to give the utmost reasonable force to
both laws.
Mr DOBSON.-Would not that be achieved without the amendment?
Mr. REID.-No.
Mr. KINGSTON.-Do you fear a Commonwealth law beyond its jurisdiction will be given some validity
by section 101?
Mr. REID.-That is not the point. I am awfully sorry I have failed to be understood after speaking so long. I
am talking of a Commonwealth law, perfectly legal, on a subject on which the Commonwealth is competent to
legislate-an absolutely good law standing by itself. I am talking of another law, passed by a state-a perfectly
good state law-on a subject on which the state is sovereign by this Constitution. In reading the two it is found
that effect cannot be given to the provisions of both, and that if the Commonwealth law is to prevail, the state
law must go down. The language of section 101 is unmistakable. It does not define what, law, but means any
law, and any good law of the Commonwealth. It means that a good state law on a sovereign subject of the state
goes down without any inquiry.
Mr. SYMON.-Do you think the law would go down?
Mr. REID.-There is no jurisdiction to go into any question, except as to whether the laws are inconsistent. I
am sorry to have to put an illustration which revives feeling, but I hope it will not be received in that spirit on
this occasion. Suppose a state pass a law that a large measure of water conservation shall be carried out on the
banks of the Darling, and there is a Commonwealth law that on that very part of the Darling nothing shall be
done to interfere with navigation -that nothing shall be done to draw water out of the river, on the ground that
such a course will make the river unnavigable. That would be a perfectly good law of the Commonwealth,
passed in the exercise of its legitimate powers, to secure a result which it was authorized to secure. That being
so, what becomes of the state law? It is a good state law, passed to effect a state work which is a lawful work
according to the powers of the state.
[start page 2272]
Mr. BARTON.-Would not such a Commonwealth law, if it abridged the rights of the states to a reasonable
use of the water, be an infringement of the Constitution under the proviso of sub-section (8)?
Mr. REID.-No, not unless those words are added to section 101. The laws passed under clause 52, and which
come into conflict, are both legally good.
Mr. SYMON.-They cannot be.
Mr. KINGSTON.-Not to the extent of the conflict.
Mr. REID.-May I ask what the honorable member means?
Mr. KINGSTON.-A law made by the state would be bad to the extent to which it conflicted with the law of
the Commonwealth.

Mr. REID.-Would that not be so under section 101?
Mr. KINGSTON.-I say it would be.
Mr. REID.-That is exactly the thing I am saying, and exactly the consequence I am pointing out. The High
Court would be compelled to declare the state law on irrigation works to be bad, because it was inconsistent with
the Commonwealth law as to the navigation of the river at that particular place. Where, then, is the protection to
the state?
Mr. KINGSTON.-You cannot avoid that unless you give the High Court power to repeal the Commonwealth
law.
Mr. REID.-Not to repeal the Commonwealth law, but to respect one of the provisos in that very law. What a
mockery it is to say that state rights as to the reasonable use of water are being preserved if, when a Bill
authorizing such works comes into conflict with the Commonwealth law, the sta te cannot be heard! If a
state law is inconsistent with the Commonwealth law, the former is ordered out of court. If I were appearing
for the state, the court would Say-"This fool of an Act says in section 101 that when your law comes into
conflict with the Commonwealth law the latter shall prevail, and the former shall, to the extent of the
inconsistency, be invalid. It is very unfortunate, and we think you have a great grievance. It is very sad,
but really these are the words of section 101." I say to the court-"Under section 52 there is a provision that
nothing shall abridge the rights of the state." The court replies-"That is quite true, but the provisions of
this statute"-which I shall not refer to any further in the way I did-"deal with cases in which the laws
conflict, and on this very point says that the state law must be ruled out as invalid."
Mr. REID.-Then I think there can be no objection to putting words in to make the provision clear. As the
provision is at present, it might be made a very serious handle of.
Mr. BARTON.-What about the words you wanted the other day?
Mr. REID.-So long as those words are put in at the end of section 101 I shall be satisfied.
Mr. ISAACS.-I am afraid those words will not do.
Mr. REID.-I do not care which words effect the purpose.
Sir JOHN DOWNER.-What do you propose?
Mr. REID.-I intend to move-
That at the end of clause 101 the words be added-"Laws made by a state concerning matters over which the
Commonwealth has no power to legislate excepted."
I tell the Convention frankly that unless Something is put into the Bill in the direction I suggest I should look
on all state laws as the creatures of Commonwealth legislation, to the extent to which in future they came into
conflict with Commonwealth legislation.
Mr. ISAACS.-That is clear.
Mr. REID.-Yes. The sovereignty of the states is preserved in one clause and is taken away in the next. The
states retain their sovereignty over subjects that are left to them only so long as they do not [start page 2273]
come into conflict with the Commonwealth law. The moment they do that the state sovereignty goes down.
Mr. WISE.-That is a necessity of any Federation.
Mr. REID.-Then all the battles we have had to secure a settlement of the water question have been idle unless
we are prepared to shut our eyes and accept what the future has in store for us. I am prepared to do that to a very
large extent. But this is one of those burning points which will be used very strongly in a sense hostile to the Bill.
I am very anxious to have answers ready to those who advance the sound contention-and the Hon. Mr. Isaacs
admits that it is a sound contention-that where a state law on a state subject is inconsistent with the
Commonwealth law on a Commonwealth subject the state law, whatever the rights or wrongs are, must go down,

and the merits cannot be gone into at all. I recognise that it may be well to leave it at that, because the provision
is one that commends itself to us as offering a means of avoiding perhaps painful conflict. But I am overborne by
the feeling that if the water question is left there I shall not be in as strong a position as I should like to occupy in
answering the criticisms that I know will be raised. If I am right as to the legal effect of leaving things as they are
there does seem to be a serious necessity for some amendment.
Mr. BARTON (New South Wales).-Taking matters consecutively, the position is this: Under clause 101,
if a law of a state is inconsistent with the law of the Commonwealth the latter is to prevail, and the former,
to the extent of the inconsistency, is to be invalid. It is clear, as indicated by the Right Hon. Mr. Kingston,
that a law of the Commonwealth there spoken of is a law made by the Commonwealth within its legislative
powers. That is to say, it must be a good and constitutional law of the Commonwealth to have any effect in
conflict with a law of a state.
Mr. REID.-We admit that.
Mr. BARTON.-Then I take it there would be scarcely any necessity for the addition the right honorable
member desires to make to clause 101-"Laws made by a state concerning matters over which the Commonwealth
has no power to legislate excepted." That would be equivalent to inserting after the word "Commonwealth," as I
proposed the other day, the words "on a subject within the legislative powers of the Commonwealth." If you
restrict the validity of Commonwealth laws to laws within the legislative powers of the Commonwealth, that is
the same thing as excepting those laws over which it has no power to legislate, so that this amendment and the
amendment my right honorable friend originally proposed, and which was to be inserted in the middle of the
clause, would be identical in effect.
Mr. KINGSTON.-He means more than that.
Mr. BARTON.-I think he does. The amendment he proposes to add to clause 101 is really, in legal
intendment, the same as the amendment to add after the word "Commonwealth" the words "on a subject within
the legislative powers of the Commonwealth." Then we have, on the motion of the right honorable gentleman
himself, added, at the end of sub-section (8) of clause 52, this proviso-
The powers contained in this sub-section, and those relating to trade and commerce under this Constitution,
shall not abridge the rights of a state or its citizens to the reasonable use of the waters of rivers for conservation
and irrigation.
I take it that the effect of the word "reasonable" need only be considered in its application to states. The
difficulty is in its application to the conservation of the rights of the states.
Mr ISAACS.-As against what?
Mr. BARTON.-When put in correlation with the right of the Commonwealth to legislate for trade and
commerce. The powers given in the sub-section are not to abridge the right of a state to the reasonable use of the
waters of the rivers, [start page 2274] and that means its right of legislation. The effect of it, then, is that
nothing in these two sub-sections contained is to lessen the right of the state to make laws for the
reasonable use of the rivers, that is, to conserve for its own reasonable use the waters of the rivers. We
have the starting point in clause 101, and it is clear that a law made by the Commonwealth is not to cut down the
state right of legislation for the reasonable use of the waters of the rivers. Then all we are confronted with is the
meaning of the word "reasonable." If there is anything to justify my right honorable friend's contention it is to be
found here. What is the meaning of the word? It means a reasonable use of the waters by the state under its laws.
The whole application of the sub-section is to prevent the exercise of the trade and commerce and navigation
powers from inflicting certain injuries. It is a simple consequence that a law made by the state, if tested in the
courts, is to be considered in the light of whether the use it makes of the waters is a reasonable use in relation to
the power in respect to navigation and trade and commerce.
Mr. ISAACS.-It is attached only to navigation.
Mr. BARTON.-The cases which most readily suggest themselves are those that relate to navigation, and
it was because we all considered that navigation within that sub-section would come under the trade and
commerce laws that my honorable friend's proviso mentioned them. Clause 101 being clear, if a law of the
Commonwealth abridges the right of a state to make laws for the reasonable use of the waters of the
rivers, then that law will not be within the Constitution. If then the High Court is of opinion that a law of a
state when it is tested is a law for the reasonable use by the state of the waters of the rivers, having regard

to the rights of navigation and trade and commerce, then any law of the Commonwealth by which it is
sought to cut that law down would come within the meaning of the proviso to sub-section (8) of clause 52,
and would be bad. If that is so, the difficulty is to a large extent cleared away, because if you go back to
clause 101 a law of the Commonwealth which would come under that ban could not invalidate a law of the
state.
Mr. ISAACS-If you can draw the line.
Mr. BARTON.-I recognise that difficulty, but it will be for the High Court to decide what by statute is a
reasonable use of the water. Then there is only one question remaining, and that is the question of jurisdiction.
All these will be either matters arising under the Constitution or involving its interpretation, or arising under any
laws made by the Parliament. These are provided for in subsections (1) and (2) of clause 73, and sub-section (6)
of the same clause extends the judicial power to matters in which the Commonwealth or a person suing or being
sued on behalf of the Commonwealth is a party. If the matter arises between citizens it will come under sub-
sections (1) or (2). If an officer of the Commonwealth is the plaintiff or defendant it will come under sub-section
(6) as well as sub-sections (1) and (2).
Mr. REID.-I am quite satisfied with that explanation, but I would like the honorable member to deal with the
other matter I mentioned. I want my honorable and learned friend's opinion upon a case not provided for by
special words in the Constitution, but in which a good state law on a good state subject, outside the powers of the
Commonwealth, comes into conflict with a good Commonwealth law.
Mr. BARTON.-I will suppose that the Commonwealth is legislating for the regulation of trade and
commerce on a railway, and that the state has made by-laws applicable to that railway. There could only
be a conflict where the regulation or law for internal trade made by the state usurped in its operation the
domain of the [start page 2275] Commonwealth in legislating for trade and commerce. That would be a
conflict such as is indicated by clause 101, and we are all agreed that, to that extent, the state law should
go down, and for this reason, that a conflict could only arise by the state law applying as much to inter-
state traffic as to internal traffic.
Mr. REID (New South Wales).-I am very glad that I have elicited this clear statement from our leader,
because I feel sure that without some such statement on our records a great deal of mischief would have
been made on the subject. The explanation does not cover all the ground, but it covers it as nearly as is
perhaps possible. Personally, I am entirely satisfied with it, and I now see that there would be no utility in
pressing my amendment. I would, therefore, ask leave to withdraw the amendment.
Mr. ISAACS (Victoria).-Before the amendment is withdrawn, I should like to observe in this matter, that the
position comes just down to what Mr. Barton has said, that the jurisdiction of the Commonwealth in regard to
navigation stops short at the point, wherever that point may be, where the state would be unreasonable in its use
of water for conservation or irrigation. Now, I am not quite clear in my own mind as to whether that is a matter
for the High Court. I can understand why it should not be, because the question of reasonableness of the
use of water as to locality, or as to extent, or as to duration, depends on questions not of law, but of such
enormous political and far -reaching effect, that it is almost impossible to conceive that the decision of such
questions could be remitted to the judgment of the High Court. And when you consider that we have to
regard the extent of territory to the needs of the people, the conditio n of productivity of their land, their
future requirements, and their requirements from day to day, and from year to year-what is reasonable
for one day would not be-reasonable for the next-it is almost impossible to imagine that the High Court
can give a final binding judgment as to the validity of a state law which can bind the matter for all time.
Now, it seems to me that it is putting a strain on the High Court that it ought not to bear, and I am not quite clear,
certainly not as clear as Mr. Barton is, in thinking that the High Court will have to decide what is reasonable or
not, because reasonableness in political matters is a question that is generally left to the Legislature. And if it is
within clause 73, then I come back to the point to which I directed the attention of the Convention a few
days ago in regard to the meaning of the word "matters." It is put that it is a "matter." Now, if that is a
matter, I do not know what is not a matter; and if the High Court is to be asked to decide any matter
between states, or between the Commonwealth and states, it is putting a construction on the word
"matter" that we ought to stop short of putting on that word. I understand the word "matter" means a
question of ordinary judicial interpretation in a controversy that is known as an action or a suit, and I
think that we may well hesitate to put such a large construction on the word "matter," because if we do
we are asking the High Court to accept a responsibility and a jurisdiction that is not found elsewhere. Of
course, with regard to such questions, I think the answer given by Mr. Barton was absolutely unanswerable, that
if a state passes a law which is entirely within its domain-perfectly within its jurisdiction-and is therefore valid,
and the Commonwealth afterwards passes a law which is within its powers but the Commonwealth law is
inconsistent with the provisions of the existing state law, the state law must cease to have effect to the extent of
the inconsistency. I think that is inevitable. You cannot frame your Constitution with any other basis. But with
regard to the word "reasonable." I feel great misgiving that we are intrusting such a question to the decision of
the High Court
Mr. Reid's amendment was withdrawn.

The above makes it clear that the legislative powers must be directly within the powers granted to
the Commonwealth, not some imaginary powers. Also, it underlines that water and other
conservation powers was retained by the States and that the Commonwealth of Australia has no
power over these matters unless it infringes commonwealth powers, such as regarding “navigation”
etc. Still, we had Mr Malcolm Turnbull making statements from which I understood that he would
be willing to go to the High Court of Australia in regard of constitutional powers to take over water
legislative powers, as if the High Court of Australia is merely a political tool in the hands of the
Federal government to do as it is being told, so to say, and this document further goes into this
matter also.
Sir JOSEPH ABBOTT.-
Can it be suggested, however high the Federal High Court may be in regard to attainments, that under any
circumstances the Judges of that court would have the experience, the training, and the knowledge of the men
composing the Court of the Privy Council? Would it be possible to separate the members of the Federal High
Court from local influences? Unintentionally, men are influenced by their surrounding conditions. It does
not follow because a man is to-day in public life as Attorney-General, and to-morrow is sitting on the
bench wearing the ermine, that he can dissociate himself or separate himself from local surroundings and
be unbiased or uninfluenced by those considerations.
One may ask, would the Privy Council have handed the same judgment as the High Court of
Australia did in regard of the Australia Act 1986 and the progressive independence where there
were not true LEGAL FACTS supporting this kind of argument at all but merely relied upon how
judges fancied events to have a certain application to suit their judgment to support their kind of
orders.
Kirby J stated
QUOTE
595 So far as s 15A of the Acts Interpretation Act is concerned, there are limits upon the power of the Parliament
to direct the courts, in effect, to make a new law or to choose what a remade law should be[673] . The limit is
reached where, faced with a conclusion of a pparent constitutional invalidity of particular provisions, a
court "cannot separate the woof from the warp and manufacture a new web"[674] . From time to time,
this Court has invoked other metaphors to explain when the Court has arrived at that limit. Thus, it has
indicated a willingness to undertake amputation and excision, where necessary, but not to perform
judicial "plastic surgery" upon the challenged law [675] . By inference, this is a reference to judicial excisions
that would substantially alter the appearance of the law, presenting a law that looks quite different from that
which was made by the Parliament.
596 The reason why this Court will not undertake such a task is ultimately based on the proper function
of the Judicature established by the Constitution and on the principle of the separation of the judicial
from other governmental powers. Thus, in the guise of construing a challenged federal law, the Court
cannot be required to perform a feat that is, in essence, legislative and not judicial[676] .
END QUOTE
QUOTE
599 Conclusion: severance unavailing: When the foregoing well-established principles are applied to the
present proceedings, they result in the invalidation of the entirety of the Amending Act.
END QUOTE
QUOTE
607 To resolve the intersection of these rules, it is necessary to recognise that a national Constitution, like
any legal document, must be read as a whole, not in bits and pieces. What this fundamental principle
requires in the present case is the confinement of the large powers of the Federal Parliament to enact laws

with respect to corporations. That confinement would preserve the constitutional prescription that federal
laws with respect to the subject of industrial disputes (as provided by s 51(xxxv) of the Constitution) have
to comply with the features deliberately imposed by the Constitution on the Federal Parliament for that
aspect of its lawmaking. That is, such federal laws may not be enacted by direct federal legislative
provisions. Rather, they must involve, by the processes of conciliation and arbitration, the intervention of
independent decision-makers who hear both sides.
608 To insist on this resolution of the intersecting principles fulfils this Court's role as the guardian of the
Constitution. It preserves decisions of this Court, delivered over more than a century, that have either
held, or impliedly accepted, that the corporations power has to be read as subject to the industrial
disputes power. The view now endorsed by the majority of this Court effectively discards a century of
constitutional doctrine. It ignores the express structure of the Constitution and the language of the two
heads of constitutional power in question in this case, each of equal validity and effect. I refuse to accept
that our predecessors in this Court were so blind to the true meaning of the Constitution that their decisions, in
such number and detail over the past hundred years, were pointless exercises in constitutional futility. Yet that is
the hypothesis inherent in the decision now reached by the majority.
609 Preserving industrial fairness: As history has repeatedly shown, there are reasons of principle for preserving
the approach of our predecessors. The requirement to decide industrial relations issues through the independent
processes of conciliation and arbitration has made a profound contribution to progress and fairness in the
Australian law on industrial disputes, particularly for the relatively powerless and vulnerable. To move the
constitutional goalposts now and to commit such issues to be resolved directly by federal laws with respect
to corporations inevitably alters the focus and subject matter of such laws. The imperative to ensure a "fair
go all round"[690] , which lay at the heart of federal industrial law (and the State systems that grew up by
analogy), is destroyed in a single stroke. This change has the potential to effect a significant alteration to some of
the core values that have shaped the evolution of the distinctive features of the Australian Commonwealth, its
economy and its society.
END QUOTE
QUOTE
612 This Court and the Australian Commonwealth need to rediscover the federal character of the
Constitution. It is a feature that tends to protect liberty and to restrain the over-concentration of power which
modern government, global forces, technology, and now the modern corporation, tend to encourage[694] . In this
sense, the federal balance has the potential to be an important restraint on the deployment of power. In that
respect, federalism is a concept of constitutional government especially important in the current age. By this
decision, the majority deals another serious blow to the federal character of the Australian Constitution.
We should not so lightly turn our backs on the repeatedly expressed will of the Australian electors and the
wisdom of our predecessors concerning our governance.
END QUOTE

QUOTE
6 24 Section 14 requires that the Act be given "every valid application", if it has any invalid application.
END QUOTE
This is the absurdity His Honour pointed out that somehow an Act that is invalid becomes by this
valid. Then why have a constitution for if the Parliament can enact anything and by mere
declaration declare an invalid legislation to be valid. Then what were the judges doing in the first
place if the commonwealth of Australia can validate its own laws?
As was made clear by the Framers of the Constitution the Constitution was to be interpreted as to
what they stated were their intentions.
Again;
Mr. REID (New South Wales).-I am very glad that I have elicited this clear statement from our leader,
because I feel sure that without some such statement on our records a great deal of mischief would have
been made on the subject.
Therefore, the usage of “on our records” indicates that it is to be used for later times.
“The Constitution is a PERPETUAL LEASE”, that cannot be revoked by the British Parliament,
the Commonwealth of Australia and/or the States as it is embedded in the Constitution, as set out
also in this document below, that
Mr. SYMON (South Australia).-I wish to say one word or two before we part. I do not intend to enter into any
detailed examination of, or any elaborate apology for, the Constitution which we have been engaged in framing.
But, sir, no man can remain unmoved upon this momentous occasion. We who are assembled in this
Convention are about to commit to the people of Australia a new charter of union and liberty; we are
about to commit this 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 new charter is to be given by the people of Australia to themselves.
This also underlines that when it comes to the “civil rights” of the people, then the High Court of
Australia cannot just ignore this, as it appears to have done in its 14-11-2006 judgment, but must
show appropriate “CONSIDERATION” as to how matters affect peoples civil, religious and
political rights as those were not handed over to the Commonwealth of Australia, as the document
below sets out also.
As is set out below, the Framers of the Constitution never intended to give “civil rights”, to the
Commonwealth of Australia, and while this document may be considered extensive, it could not
address every issue in all details, and I view neither needs to do so as my various books already
published over the years themselves do so. It ought to be sufficient to present a document, as like
this, to show there is an question about the validity of the judgment and so orders of the High Court
of Australia on 14 November 2006 in regard of the amendment Act legislation commonly known
regarding WorkChoices. In my view, the credibility of the High Court of Australia itself is in
question because of its conduct, and to be honest, I am wondering if the judges were fraternizing
again with one or more of the parties, as I experienced to have occurred in the past!
Jurisdiction (Black's Law Dictionary): It is defined as:
"The legal right by which judges exercise their authority. It is the authority by which courts and judicial
officers take cognizance of and decide cases. It is the authority, capacity, power or right to act."
Mr. BARTON (New South Wales).-That is an alteration of substance which I will explain. I agree with the
object of the clause as proposed to be limited by the amendment which I am now proposing. That is to say, I
quite agree that any elector who, at the establishment of the Commonwealth or afterwards, has, under the law in
force in any state at the establishment of the Commonwealth, the right to vote at elections should not be
prevented by any law of the Commonwealth from exercising that right.
Tell this to the thousands of State electors who are denied to vote in federal elections because the
Commonwealth has draconic legislation to close the rolls and/or that an elector may be overseas,
and this is a example how the High Court of Australia, as the GUARDIAN OF THE
CONSTITUTION, has ongoing permitted this to occur. It may indicate what I am on about in this
document, that far too often the High Court of Australia might in fact be directly and/or indirectly
the culprit for what is being done unconstitutionally/illegally. Is, so to say, needs to get its Act
together so others will not suffer the same as the ill conceived 14 November 2006 orders in the IR
WorkChoices legislation (Amendment Act)
Dr. QUICK.-Certainly, with regard to constitutional questions. I am prepared, if necessary, to give up the
subject's right of appeal; but I emphatically assert that there should be a right of appeal from the decision of the
High Court in regard to this Constitution, a Constitution embodying novel provisions and giving important
powers, including the power of the Federal Court to review the procedure of Parliament. The Federal High
Court is empowered to-declare a law passed by both Houses and assented to by the Crown ultra vires, not
because the Legislature has exceeded its jurisdiction, but because of some fault of procedure.
As this document sets out it is constitutional TERRORISM to force the Senate to vote without
giving it sufficient time and as such the High Court of Australia, in my view, was bound to declare
the legislation invalid as it denied certain members of parliament appropriate time to consider the
Bill before the Parliament and to vote in a manner that was to the best interest to their constituents.
This document does quote a statement about the denial of a copy of the Amendment Bill and as
such the High Court of Australia, in my view, has a duty to rectify this matter. It cannot abrogate
this duty by holding that it was not made aware of this as after all, its judgment was in my view
obtained by deception/concealment by the lawyers of the Commonwealth of Australia ( such as the
content of my 2-7-2004 (040702jh.doc 21879 characters being about 9 pages), 11-7-2004
(040711gh-High Court deception.doc, being about 481.279 Characters being about 176 pages) 26
July 2005 (050726jh.doc), and the 12-6-2006 (060612-Fair Pay Commission submission.pdf being
about 130 pages) correspondence (of which a copy has been published in my various published
books and as such it is on public record this to be so.
QUOTE 11-7-2004 CORRESPONDENCE
In my view, the case of ATTORNEY-GENERAL (VICT.); EX REL. BLACK v. THE COMMONWEALTH [1981]
HCA 2; (1981) 146 CLR 559 (2 February 1981) was wrongly decided!
In my view, Murphy J (dissenting judge) was correct!
While Wilson J stated at 42;

While on present authority it is not permissible to seek the meaning of s. 116 in the convention debates,
He then goes into some historical details as to what occurred at the Constitutional Conventions, albeit leave out very
relevant matters.
For example, while referring to that the Constitutional Convention rejected amendments, he does not disclose why, as
some set out below by me!
The mistake that was made by the judges, other then Murphy J, was to try to restrict prohibition to what was stated in
Section 116! Even using the argument of the usage of the word “for”, etc.
Wilson J ought to have been aware, after all he was referring to the Constitutional Convention Debates, that the
framers defeated the prohibition clause upon the basis that there was absolutely no need to have it in the Constitution as
there was no specific power given for the commonwealth of Australia to legislate in regard of religion! Hence, Section
116 is no more but a limited prohibition that was to ensure that it was apparent that there was no constitutional right by
the Commonwealth of Australia to make any kind of law regarding religion, but didn’t diminish in any way the fact that
without Section 116 there was already no constitutional power for the Commonwealth of Australia to legislate in regard
of religion.
It was because of the preamble that Section 116 finally was accepted as a mere specific clarification without limiting the
overall denial of legislating in regard of religion.
Hence, the Court omitted to argue the case that without Section 116 there was already no constitutional power for the
Commonwealth of Australia in any shape or form to fund religion, as no such powers were provided within Section 51
and 52!
Again, the framers held there was really no need for Section 116, as the prohibition was already implied, but for the
sake of some form of clarification certain matters were specifically set out.
The argument therefore not considered was if there was any constitutional powers within Section 51 or 52 for the
Commonwealth of Australia to provide funding to non secular schools?
As set out below, Section 96 cannot be taken apart of Section 51 and 52, as grants can only be provided in regard of
what is within legislative powers of the Commonwealth of Australia.
As I have also set out in my book on CD INSPECTOR-RIKATI® on CITIZENSHIP, not even foreign aid can be
appropriated by the Commonwealth of Australia, as Section 51(xxix) external affairs is limited to what is within the
constitutional legislative powers of the Commonwealth of Australia and cannot be used for matters outside its
constitutional legislative powers. It is therefore a grave error to presume that Section 51(xxix) provides for millions of
dollars being spend on Papua New Guinea, as it is not part of the Commonwealth of Australia! The Commonwealth of
Australia can only spend monies for the Commonwealth of Australia in regard of the limited constitutional powers it
was given!
END QUOTE 11-7-2004 CORRESPONDENCE
And
I feel that honorable members who value state rights reserved [start page 1736] to the states, who value the
preservation of the individuality of the states for state purposes, will agree with me that it is with the state we
ought to leave this power, and that we ought not to intrust it to the Commonwealth. For instance, our factory
laws are left to the state.

Again;
Mr. WISE.-If the Federal Parliament chose to legislate upon, say, the education question-and the
Constitution gives it no power to legislate in regard to that question-the Ministers for the time being in each state
might say-"We are favorable to this law, because we shall get £100,000 a year, or so much a year, from the
Federal Government as a subsidy for our schools," and thus they might wink at a violation of the
Constitution, while no one could complain. If this is to be allowed, why should we have these elaborate
provisions for the amendment of the Constitution? Why should we not say that the Constitution may be
amended in any way that the Ministries of the several colonies may unanimously agree? Why have this
provision for a referendum? Why consult the people at all? Why not leave this matter to the Ministers of
the day? But the proposal has a more serious aspect, and for that reason only I will ask permission to
occupy a few minutes in discussing it.
It must be clear that any form of religious matter, including Sunday laws were specifically denied from Commonwealth
of Australia constitutional powers.
Technically, the Commonwealth of Australia cannot demand religious observance of Christmas, as many no Christians
are disturbed that their religious days are ignored while they are forced to take religious observance of another religion.
It is unconstitutionally for the Commonwealth of Australia, even as an employee (those holding an “office of profit”) to
make any religious provisions, including religious holidays!

Also, any laws governing postal and telecommunications regarding religious days would also be unconstitutional, this,
as like the Sunday newspaper, it would breach the provisions of Section 116 of the Constitution! Likewise, any postage
depicting religious matters would be unconstitutional!
Mr. HIGGINS.-The particular danger is this: That we do not want to give to the Commonwealth powers
which ought to be left to the states. The point is that we are not going to make the Commonwealth a kind of
social and religious power over us. We are going into a Federation for certain specific subjects. Each state at
present has the power to impose religious laws. I want to leave that power with the state; I will not disturb
that power; but I object to give to the Federation of Australia a tyrannous and over-riding power over the
whole of the people of Australia as to what day they shall observe for religious reasons, and what day they
shall not observe for that purpose. The state of Victoria will be able to pass any Sunday law it likes under
my scheme. It can pass any law of that sort now; but surely it is a proper thing for a state, and it is not a proper
thing for the Commonwealth, to exercise this power. I feel that honorable members who value state rights
reserved [start page 1736] to the states, who value the preservation of the individuality of the states for state
purposes, will agree with me that it is with the state we ought to leave this power, and that we ought not to intrust
it to the Commonwealth. For instance, our factory laws are left to the state. Those laws provide for a certain
number of hours of rest, and that employes shall not work on Sundays, and so forth. If we leave the factor laws to
the state we should also leave this question of the observance of Sunday to the state. I will not take it from them.
At the same time, I am not going, no matter what the consequences are, to help to intrust this power to the
Commonwealth. I want the people of the different states to manage their own affairs as well as they can. I may
say frankly that I, rightly or wrongly, am one of those who think that the Christian or religious observance is no
good if it is enforced by law. I am one of those who think the religious observance is of no value unless it is the
outcome of a man's own character, and the outcome of a man's own belief.
Again;
For instance, our factory laws are left to the state.
Somehow we seem to have that the Commonwealth of Australia has taken over those rights, such as using the
Arbitration Commission, even so this clearly is unconstitutional! The Arbitration commission can only deal with
matters that are beyond the boundaries of a single State, but cannot deal with employment matters and its disputes that
were within the boundaries of a single state.

The full correspondence can be located in the relevant listed book on CD as shown the chapters and
subchapters below.
Likewise confirmation material to prove the documents had not just been forwarded but were
actually confirmed as having been sent. This record was established as to avoid any possible future
claim that the documentation was never received.
Likewise 375.912 Characters being about 130 pages of the 12-6-2006 correspondence was
submitted to the FAIR PAY COMMISSION which had provided an email address;
submissions@fairpay.gov.au
The email has a time and date recorded as follows; Monday, June 12, 2006 01:21 am
QUOTE EMAIL
From: G. H. SCHOREL-HLAVKA <INSPECTOR-RIKATI@SCHOREL-HLAVKA.COM>
To: submissions@fairpay.gov.au
Cc: inspector-rikati@SCHOREL-HLAVKA.COM
Date: Monday, June 12, 2006 01:21 am
Subject: submission 12-6-2006 as attachment
FAIR PAY COMMISSION

12-6-2006
Locked Bag 35003
Collins Street West Re; Submission 12-6-2006
Melbourne VIC 8007
submissions@fairpay.gov.au
AND TO WHOM IT MAY CONCERN
Please note, submission 12-6-2006 is attached.
Text version of this message (216B)

060612-Fair Pay Comission submission.pdf (1MB)
END QUOTE EMAIL
Time and again in these and numerous other documents did I advise the Federal Government and
others about this, and so well before the actual Amendment Bill was before the Parliament. As such
the Federal Government lawyers ought to have been aware of this correspondence and have
addressed the issues. I have done extensive research on the matter and willing to allow the lawyers
to benefit from this. It is not relevant to me if John Howard might once again claim no one did bring
it to his attention, as I do not run his office and neither should the High Court of Australia concern
itself with such kind of absurd excuse as ultimately ignorance is no excuse.
The documents themselves also show that they were forwarded to various other Members of
Parliament and as such ample of opportunities for the Federal Government to attend to it.
Personally I had never any doubt the Federal Government would unlikely reveal to the High Court
of Australia all relevant details/information as I expected it was more concerned to obtain power or
to have power recognised to exist at all cost then to risk loosing the case with revealing
details/information I had so often provided to the Commonwealth of Australia.
If then the High Court of Australia were to nevertheless ignore all this and still maintain its order
then to me this would underline the High Court of Australia is bias.
The documents can be located in the following publications;
INSPECTOR-RIKATI® on IR WorkChoices Legislation (Book-CD)

A Book about the Validity of the High Courts 14-11-2006 Decision
ISBN 978-0-9751760-6-1
CHAPTER 037A CORRESPONDENCE/FRM/26-FAIR PAY COMMISSION/FRM/060612-Fair Pay

Commission submission.pdf
CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/ 050726jh.doc

Confirmation of the email forwarded and a copy received by me is dated; Date: Tue, 26 Jul 2005 00:01:50
+1000
CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/040702jh.doc

Facsimile records show it was faxed successfully at the recorded time 6:05PM on 2/07/04 9 pages
CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/ FRM/040711gh-

High Court deception.doc
Confirmation of having forwarded it by email was received Date: Sun, 11 Jul 2004 23:42:54 +1000
INSPECTOR-RIKATI® & What is the -Australian way of life- really?

A book on CD on Australians political, religious & other rights
ISBN 978-0-9751760-2-3 was ISBN 0-9751760-2-1 Published 6-7-2006
CHAPTER 01A CORRESPONDENCE/FRM/FAIR PAY COMMISSION/ FURTHER READING

MATERIAL /060612 -Fair Pay Commission submission.pdf
CHAPTER 01A/FRM/JOHN HOWARD 0262734100/FRM/ 050726jh.doc

+1000
CHAPTER 01A/FRM/JOHN HOWARD 0262734100/FRM/040702jh.doc

CHAPTER 01A/FRM/JOHN HOWARD 0262734100/FRM/040711gh-High Court deception.doc

INSPECTOR-RIKATI® on the battle SCHOREL-HLAVKA v BLACKSHIRTS

For the quest of JUSTICE, in different ways. Book on DVD.


+1000

CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/ FRM/040711gh-

High Court deception.doc
INSPECTOR-RIKATI® & How to lawfully avoid voting (CD)

A book on CD about Australia’s federal election issues & rights

+1000

CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/ 040711gh-High

Court deception.doc
I may also indicate that in my published book on 30-9-2003 titled;
INSPECTOR-RIKATI® on CITIZENSHIP
A book on CD about Australians unduly harmed.
ISBN 978-0-9580569-6-0 was ISBN 0-9580569-6-X
The following documents refer to “factory laws” also;
GHSH-10-Race-isolation-disqualification -etc.doc
Chapter 02 - 1898 Convention re Citizen-Subject.doc
Chapter 00B Set out about CITIZENSHIP.doc
Chapter 00J CITIZENSHIP -COMMON LAW.doc
Chapter 00K Citizenship, etc.doc
Of this book 4 copies were provided to the High Court of Australia on the day of publication and a
further 4 copies were provided to the High Court of Australia about 4 weeks later. As such, the
High Court of Australia had been provided with a total of 8 copies of this publication and so its
content. It was the Queensland Court of Appeal in November 2003 that subsequently overturned the
convictions of Pauline Hanson and David Ettridge having about word for word used the set out I
had in my book as to why the convictions were errors of law, etc.
Foster (1950) S.R. (N.S.W.) 149, at p151 (Lord Denning, speaking on the role of an advocate)
"As an advocate he is a minister of Justice equally with a judge, A Barrister cannot pick or
choose his clients...He must accept the brief and do all he honourably can on behalf of his
client. I say 'All he honourably can' because his duty is not only to his client. He has a duty
to the court which is paramount. It is a mistake to suppose that he is a mouthpiece of his
client to say what he wants: or his tool to do what he directs. He is none of those things.
He owes his allegiance to a higher cause. It is the cause of truth and Justice. He must not
consciously misstate the facts. He must not knowingly conceal the truth. He must not
unjustly make a charge of fraud, that is, without evidence to support it. He must produce all
relevant authorities, even those that are against him. He must see that his client discloses, if
ordered, all relevant documents, even those that are fatal to his case. He must disregard the
specific instructions of his client, if they conflict with his duty to the court."

In my view, based upon the judgments omitting to refer to a considerable amount of material that
was relevant to the case before the Court I assume that the Federal government lawyers and other
lawyers for the states concealed from the Court relevant details/information that ought to have been
placed before the Court. I do not accept that the various High Court of Australia would have by
neglect omitted to address those issues had it been placed before the Court for its consideration.
Taylor v. Taylor (1979) Fam LR 5, 289289 at 290 298 and 300 HIGH COURT OF AUSTRALIA.
"In my opinion, the words 'false evidence' in s79A(1) do not mean evidence which is
willfully false. The sub-section should be read according to its terms. To say that 'false
evidence should be read as 'willful false evidence' is to introduce a provision not expressed
by the provision; cf s6H of the Royal Commission Act 1902 which speaks of a witness 'who
knowingly gives false testimony'. This interpretation is reinforced by reference elsewhere in
s79A(1) to the separate grounds of fraud and suppression of evidence which would
comprehend cases of willful false evidence. At common law, a judgement will be set aside
if it has been obtained by fraud. In the exercise of this jurisdiction, it has been held that an
applicant must show something more than perjury, ie. new facts (Baker v. Wadsworth
[1898] 67 LJQB 301; Everett V. Ribbands [1946] 175 LT 143). This tends to suggest that
the words 'false evidence' should be given their literal meaning"
R.V. Crimmins (1959) VR 270

Suppression of relevant evidence
Byrne v Byrne (1965) 7 FLR 342 at 343

“Fraud: Usually takes the form of a statement of what is false or the suppression of
what is true.”
Again;
At common law, a judgement will be set aside if it has been obtained by fraud.
Mr. BARTON.-
Take the case of a law passing beyond the powers given under clause 52, and which law does pass beyond
those powers, and therefore, invades the domain of the states, which are protected under clauses 99 and 100.
That is a matter which will be apparent on the face of the law in question, and therefore, there is material for the
High Court to declare the law invalid. And so, if you consider other cases that might arise under the Constitution,
you will find that it will always be apparent upon the face of the law in question whether it departs from
constitutional power or not, and in such cases there is material for the High Court to determine. So it is in regard
to clause 55: If it is apparent on the face of a law that it embodies two subjects of taxation when it should only
embody one -where, in fact, it is a tack as well as an Appropriation Bill-that will be apparent on the face of the
law, and is therefore within the functions of the judicial tribunal, because the court is enabled to deal with what
appears upon the face of such laws when they emerge (if they ever do emerge) from Parliament.
Sir GEORGE TURNER: There is no doubt that Mr. Barton cannot pass the matter off in this way. What
does it now exactly mean? It means that before the House of Representatives can pass any Appropriation
Bill they will have to get a message from the Governor, and before the Senate can pass it they will have to
do so also.
Mr. BARTON: Yes.
Sir GEORGE TURNER: Is that intended?
Mr. BARTON: Yes.
Sir GEORGE TURNER: You are very fond of messages.

Clause as amended agreed to.
What this makes clear that “powers” and not “power” is referred to and that where the purported
legislation enacted within subsection 51(xx) exceeds the powers provided for in subsection
51(xxxv) then it is unconstitutional. Actually, so are taxation laws that provide for tax deductions
as tax deductions are in effect to be considered appropriation, as it is a tax deduction out of
Consolidated Revenue and causes other tax payers to pay more so the government can still raise the
funding it requires. Hence, taxation legislation dealing with tax deductions are in effect a
combination of Appropriation Bill and Taxation Bill and cannot be constitutional valid.
As I have already set out extensively in past published books there is no entitlement for the Federal
Government to exclude anyone of paying the same level of tax as any other person has to having the
same combined income, and as such tax exempt income are unconstitutional.
Mr. HIGGINS.-Clause 55 says that such a law would be invalid. I am speaking from some little experience in
our local Parliament. A Charities Bill was introduced, and it was proposed to raise the money for the
charities by means of a sports tax, and additional rates upon ordinary lands and buildings. Supposing that
money was required, and the House of Representatives said that it should be raised by a tax upon lands, the
Senate might then say-"Oh, no, we can raise the same amount of money by means of a tax on sports and lands."
That suggestion could not be made, because if it were adopted there would be two subjects of taxation in
the Bill and the law would be invalid. I will take another instance: It is provided that laws imposing taxation
shall deal only with the [start page 2024] imposition of taxes. Under that provision the Senate can make no
condition to a law imposing taxation, and it will have to accept the taxation as it stands, or not at all. The law
will otherwise be treated as invalid, and the taxpayers could then re-fuse to pay anything. Then sub-section (3)
says-"A law which appropriates revenue or moneys for the ordinary annual services of the Government shall
deal only with such appropriation."
And
Mr. TRENWITH.-And yet this clause is throwing legislation into the hands of those people who cannot
agree.
MR. REID.-The lawyers.
Mr. MCMILLAN.-The lawyers?
Mr. TRENWITH.-Yes, thrusting it on them.
Mr. MCMILLAN.-That is one of those commonplaces which are always used. There is no clause or sub-
clause of any Bill in the world, even if it were framed by an angel from Heaven, that would not be the subject of
litigation.
Dr. COCKBURN.-The disagreement is not legal, but constitutional.
Sir EDWARD BRADDON.-You do not got lawyers from Heaven.
Mr. ISAACS.-No, lawyers are sent there; they are not drawn from there.
Mr. MCMILLAN.-Looking at the clause from a common -sense point of view, are the provisions a vital
condition of the Constitution? Was it worth our while to spend days and weeks thrashing out these matters as a
compromise to the financial scheme? We are dealing now with one of the great compromises of our financial
scheme. Is that compromise, of vital importance in the financial scheme, to be made a matter of simple
procedure in the House, liable to the judgment of a Speaker or a President? Or is it, like hundreds of other things,
embedded in the Constitution, so that, if at any time there be an infringement, the law passed would be invalid,
and the High Court would protect the people of the country? Apart from all legal quibbles, that seems to be the
plain English of the fact. Speaking as an ex-Treasurer, I say that it is impossible to safeguard you in the third
section. I would be quite willing to put in the word "proposition," or "Bill," or anything of the kind. All the
arguments used to-day are valid against the third sub-clause. But, as against the other sub-clauses, looking at it as
a matter of English, and as clearly defining the rights in the Constitution, it seems to me that they ought not to be
disturbed.

And
Mr. ISAACS.-And, as Sir Samuel Griffith suggests, you might have to submit another Bill containing the
machinery for the collection of your income tax.
Mr. KINGSTON.-I was going to point that out also. Clause 55 provides that laws imposing taxation shall deal
only with the imposition of taxation, and I am inclined to doubt whether it authorizes the insertion in a
Taxation Bill of the machinery necessary for the collection of the tax.
Mr. REID.-No, it does not.
Mr. KINGSTON.-I do not think it does. I ask the Drafting Committee to consider this, and I would suggest
that it is very often convenient, in a Taxing Bill, to provide the machinery for the collection of the tax. And yet,
under this clause, the whole of a Customs Act might be invalidated by the incorporation of the usual machinery
for the collection of the tax. Further -and I see that Mr. Deakin proposes to deal with this question-here is a
provision that you shall not, in a Bill imposing duties of customs, impose duties of excise also. Now, honorable
members know perfectly well that it is highly desirable to deal with the two things at the same time. They have
an intimate mercantile connexion with each other, and to deal with the one and leave the other untouched would
expose us to the gravest inconvenience. If we pass this clause, with the amendment Mr. Isaacs has proposed, we
will undoubtedly have the two Houses of the Federal Parliament watchful of each other. Each of the pre-siding
officers would be jealous lest, inadvertently, an unconstitutional provision should be accepted by his House, for
which mistake he would, in some measure, be held responsible and to blame. Under these circumstances, I
cannot contemplate the possibility of any objection to the clause if it be amended as proposed by Mr. Isaacs, at
least any objection equal to the disadvantages which would unquestionably accrue if you allowed the decision of
Parliament, and the rulings of the President of the Senate, or of the Speaker of the House of Representatives, to
be subject to the ruling of the High Court. Why, sir, in connexion with our meanest and smaller courts, we
provide that if an appeal is to be exercised, it must be exercised within a certain time, or the right of appeal is
gone; but in this measure we are asked to provide that the decision of the President of the Senate, or of the
Speaker of the House of Representatives, is to be open to challenge for all time; under the circumstances to
which Mr. Reid has referred, and with the consequences depicted by other speakers. Look at the inconsistency
with which the question is dealt with in the previous clause. One of the most vital questions, the taxing of the
people, the spending of the public funds, properly confided to the popular House, is put in this way-that it shall
only apply in connexion with "proposed laws." You might just as well suggest that the House of Representatives
will be careless of its rights; that it will tacitly authorize and practically approve of a measure which emanates
from the Senate, and which originates both taxation and expenditure, and under such circumstances as that, when
the whole Constitution is practically turned topsy-turvy on one of the gravest financial questions, and there is no
remedy whatever, once an Act is assented to; but, on the other hand, in connexion with these small matters, there
is a proposal that the High Court is at all times to have the power of review, although it could not interfere in a
grave question of the character to which I have referred. It seems to me that in a matter of this sort experience of
the past should tell us that, when we have marked out, in precise language, the relative rights of the two Houses
of Parliament, we are abundantly justified in confiding in them the duty of maintaining their respective rights,
and we know perfectly well that under this Constitution they will be completely protected.
[start page 2041]
Mr. DEAKIN (Victoria).-The honorable and learned member for South Australia (Sir John Downer) paid me
the distinguished compliment of referring to me as always appreciative of the arguments urged by my
adversaries. On this occasion, and in connexion with this subject it is scarcely possible to return the compliment.
For the honorable member deals with this question, not in the judicial manner with which we are familiar, but
with much of the warmth and force of the forensic advocate. It makes one almost despair of political discussion,
if honorable and learned members of his eminence and ability fail to distinguish between the several interests
involved in propositions of the importance of the amendment recently submitted. A proposal affecting the
financial powers of the Commonwealth will affect both Houses, and may therefore be made the platform of a
discussion upon their rights, privileges, and powers. But the proposal submitted by the Attorney-General of
Victoria did not necessarily involve any such consideration, and was expressly aimed at a difficulty of quite
another kind. The whole discussion, so far as it has turned on the relative power of the two Houses, valuable and
interesting as it may have been from other aspects, is beside the issue which my honorable and learned friend
desires to raise.
Yet, the High Court of Australia did absolutely nothing about the GST (Goods and Service tax)
regardless that it is unconstitutional, as set out extensively in my already published books.

Re Hansard 12-4-1897 Constitution Convention Debates (Official Record of the Debates of the
QUOTE 16-3-2005 correspondence to Malcolm Turnbull

Mr. GLYNN Does that put a maximum on military expenditure?
Mr. PEACOCK: A maximum on all expenditure!

Mr. BARTON: It seems to me to put a maximum on all expenditure, because the whole of
the expenditure cannot exceed the total yearly expenditure in the performance of the
services and powers given by the Constitution, and any powers subsequently transferred
from the States to the Commonwealth.
Mr. SYMON: Does that prevent any increase in case of war?
Mr. BARTON: Yes.

END QUOTE 16-3-2005 correspondence to Malcolm Turnbull
Yet we find that prior to the last federal election John Howard was suddenly giving away monies as
some handout to women giving birth to a child even so the appropriation bills did not provide for
that financial year to do so and the taxation laws had also been set in concrete, so to say. What we
find is that the Federal government is paying out moneys unconstitutionally but again the High
Court of Australia does not appear to be concerned about this, at least not that I could detect. As
was made clear taxation laws cannot be changed, as they are locked in for the financial year. Now
as I have set out at the end of this document that we need an OFFICE OF THE GUARDIAN, as
obviously the High Court of Australia, in my view, is unable and/or unwilling to deal with these
matters.
Mr. DEAKIN:
. Then we come to the last clause in the resolution, which deals with the appointment of the executive and the
governor -general, the advisers of the governor-general to be members of parliament, and their term of
office to depend upon their having the confidence of the popular house.
Only members of the House of Representatives can be appointed Minister of State, yet we find
Senators being appointed! And on and on it goes where little to nothing is being done by the High
Court of Australia to ensure that the Constitution (the will of the people) is adhered to. And,
numerous other issues can be raised, as have been in my various books, but to do so would make
this book to large for printing purposes.
Mr. DEAKIN:
That reminds me of a point I was nearly passing. I may be pardoned for leaving this part of my argument in a
confessedly imperfect state; because, to answer all interjections would take too long. I shall be delighted to
resume the argument in Committee, to obtain more knowledge, and to challenge the advocates of the policy to
show that any expenditure can conflict with state rights properly so-called. Let them in the first instance
define state rights, and then let us see how they will be impaired. I will be second to no delegate in my
anxiety to preserve what I understand to be state rights. So anxious am I to preserve them, that I would
never dream of intrusting them to a senate. Let us know what state rights are, and let us be careful to
secure them under our constitution, so that they may never be liable to be swept away. We should fail in
our duty if we did not embody in our draft such a distinct limitation of federal power as would put the
preservation of state rights beyond the possibility of doubt.

Mr. MCMILLAN: It seems to me that we must decide whether we will give this power to the Federal
Government or leave it to the States. The object of Federation is, while federating on common matters, not
to interfere with the industrial and local life of the States. This is a proposition which goes a step too far, as
you are giving a distinct power to override the States legislation. Is the power simply to be exercised with
the consent of the States, or is it to be an overriding power.
Mr. KINGSTON: It is a power which the Federal Parliament may exercise.
An HON. MEMBER: If they make any law it will override any local law.
Mr. KINGSTON: Only where it is inconsistent.

Mr. MCMILLAN: I have no legal knowledge to guide me, but it seems to me that everything that we put
among these sub-sections is practically a power which necessarily overrides every other power, and therefore
there is no doubt that while in some trade disputes their ramifications extend throughout the different colonies,
still they are to a great extent local matters of dispute.
Mr. HIGGINS: It will only apply where the dispute extends outside the limits of one colony.
Mr. MCMILLAN: Here again I am met by my want of legal knowledge; but it seems to me that it is a
difficult thing for the Federal Government to interfere, even where the ramifications of the disputes
extend beyond the limits of a colony, without the consent of the States. I think there are sufficient powers in
this Bill to enable some conjunction of interests between the Federal Government and the States in matters of this
kind being effected; but I do not think that there should be any power included in this Bill which will so
interfere with the local industrial life of any State as practically to dictate to the State with regard to trade
disputes.
Sir JOHN DOWNER: I confess I do not understand the clause, nor do I see what it means.
Industrial dispute extending beyond the limits of one colony
are the words used, but how can that happen?
Mr. HOWE: A maritime strike affects the whole national life.
Sir JOHN DOWNER: It does not extend beyond the limits of a State. The dispute is complete in itself in
each State. Because there is the same dispute in other colonies, it does not create a dispute extending
beyond the limits of the State. Each dispute is a dispute complete in itself [start page 784] in each State,
and each State will have power to deal with it. Such a provision I think will be a fertile source of dispute.
As far as the words are concerned, they appear to be simply meaningless, and I cannot conceive any
dispute which in itself can extend beyond the limits of the State.
Mr. CARRUTHERS: How about a dispute with the masters in one State and the men in another, as in the
shipping trade?
Sir JOHN DOWNER: That is not a dispute extending beyond the State. It may be a very difficult thing to
work out, but if it is to be done at all-and I can see great difficulty in doing anything with it, because it will be
extending the limits of the Commonwealth legislation to a most dangerous degree, which I think all the colonies
will not be prepared to accede to-it will be a departure from the proposition that there must be a formula in which
you can give the jurisdiction. These words, I submit, will not do it, because the dispute will be a dispute in
the State alone, and will not extend beyond it.
Mr. HOWE: I rise, as one of the laymen, in fear and trembling to give my opinion against those of the legal
luminaries here. A maritime dispute may affect the life of the nation. We have before seen the whole commerce
paralysed by these disputes, and if we give the telegraphic departments to the federal authority why not give
them authority to settle a national dispute which is endangering the commercial enterprise and industrial life of
the whole community. I am with Mr. McMillan on that point, and if these words will not accomplish their object
I want Sir John Downer to find words that will.
Mr. DEAKIN: I am entirely with my hon. and learned friend Mr. Higgins in the amendment he has moved so
far as he has indicated his purpose. I had the pleasure in 1891 of supporting the Premier of South Australia when

he made a similar proposition. It is a cause in which he has taken a continuous and active interest ever since.
Some of the difficulties which confront Sir John Downer confront me, although I see the problem from another
point of view. This sub-section would give concurrent federal power in dealing with industrial disputes
when they extend beyond the borders of a single State. The granting of such a power is desirable, properly
belonging to a Federal Government, because the disputes may be extended over large areas, and if they are to be
dealt with as a whole they must be dealt with by the Federal Parliament. Concurrent legislative power here
differs from the concurrent power usually given in other respects in this Bill. A dispute might arise in South
Australia, where there is a law now on its Statute-book dealing with industrial disputes. So long as that
dispute remained in South Australia it would be dealt with under that law. The federal authority will also
have a law perhaps different in its provisions, in many respects, from from the law in South Australia.
Directly the dispute in Adelaide overflowed to Western Australia or the Wimmera the power of the State
law would cease and the power of the Federal law, which is a different law, would begin.
An HON. MEMBER: So it ought to.
Mr. DEAKIN: Yes; but it will be difficult to determine the moment of overflow even if you can determine the
point of overflow. We can scarcely say it there is to be a law in each State that the federal law must not differ
from some, if not from all, of these. Consequently it will be a curious problem in relation to penalties and
observances for those concerned to know the moment when they have passed from under the dominion of the
State law to the dominion of the federal law. That is the great difficulty to settle. Although I am prepared to
support the motion of the hon. member, I see grave difficuties in this proposal which [start page 785] is to retain
the State law and federal law upon the same question as both may have to be applied in times of emergency and
urgency. If you had merely left power to the State to legislate on industrial questions until the Commonwealth
Legislature intervened, then the situation would be comparatively simple. But I know that neither of my hon. and
learned friends desires that. They both desire to retain for their Several States for all time the privilege of
controlling industrial disputes within their own borders. But then they are confronted with the difficulties to
which I have referred, and upon which I would desire the Drafting Committee to throw some light so as to enable
a determination to be come to. As to the time difficulty, I suppose it could be determined by proclamation of the
Federal Parliament that a particular industrial dispute had ceased to be a State dispute, and had become federal.
But the hon. member wants to obtain more than that. He wants, if possible, to graft a federal law upon the
State law in such a way that the federal law should only be applied where the State law cannot be applied.
If South Australia and Victoria had each a law enabling them to deal with a dispute, it might be advisable
that each State should deal with it. It might be better that the dispute on the Victorian side should be dealt
with according to the Victorian law, and that it should be dealt with on the South Australian side
according to the South Australian law. But where the States altogether find themselves unable to cope with
an intercolonial struggle, it seems to be highly desirable that there should be provision for federal action. I
hope the hon. gentlemen will indicate to the Drafting Committee how they are going to distinguish between
those two separate spheres of action.
And
Mr. WISE: It would not be fair to criticise the language of this amendment too closely, but I entirely agree
with the observations that have been made by Sir John Downer and Mr. Deakin, that the amendment as now
drawn is very unsatisfactory. The language is either too large or too limited. In one sense it is hard to say that
any industrial dispute is a dispute outside the limits of the colony. I agree with Sir John Downer that it is
impossible to say when any dispute extends outside the limits of a colony, because a dispute is always in
one colony although it may be going on in every colony. In [start page 786] another sense every dispute
extends outside the limits of a colony.
An HON. MEMBER: Indirectly.
Mr. WISE: Sometimes, and sometimes directly. I rose rather to call attention to another aspect of the question.
If the effect of the amendment is really to provide for the possible establishment of a Federal Court of
Conciliation, I am at one with that object; but the essential part of the language used in the amendment-I am not
criticising casual expressions-indicates a much wider object, which would turn this power into a weapon of very
great danger. It would, I think, deprive those concerned in these industrial disputes, whether as masters or
employes, of one of their greatest safeguards. There is no matter which the industrial population of Australia
would more desire to confine to the local Parliaments, where they can make their influence upon members felt,
than matters affecting industrial disputes. To give the Federal Parliament power to make laws affecting
industrial disputes gives them authority to regulate by penalties every detail of the industrial life of every
trade in the colonies.
Mr. MCMILLAN: Hear, hear.

Mr. WISE: Surely that cannot be desired or intended. There is no matter in which varied local
development it; more necessary or desirable to a State than the development of its industrial conditions,
and the industrial conditions in every part of this continent in years to come may, and probably will, very
largely develop.
Mr. HIGGINS: Will you not trust the Federal Parliament with the same powers as the States?
Mr. WISE: Will the working classes of this country be prepared to surrender the right of local self -
government over industrial disputes?
Mr. SYMON: Hear, hear.
Mr. HIGGINS: That is not my question. Will not the Federal Parliament be equally to be trusted as the States
Mr. WISE: I do not think the Federal Parliament or any centralised authority will be as competent as a
local authority to deal with the necessary local conditions of trade.
Sir JOHN DOWNER: Hear, hear.

And
Mr. WISE: If a clause were put in, the Federal Parliament would have power to fix a uniform rate of
wages all through Australia in any particular trade.
Mr. HIGGINS: If that is so, and if the hon. member has great confidence in the popular character of this
Parliament
Mr. WISE: I prefer local authority.
At the very least and in those circumstances entitled to declare the 14 November 2006 to be
suspended pending the parties to return to the Court as to show cause why the 14 November 2006
judgment should be reinstated.
D\'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 (10 March 2005)
HIGH COURT OF AUSTRALIA
GLEESON CJ, McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
RYAN D'ORTA-EKENAIKE APPLICANT
AND VICTORIA LEGAL AID & ANOR RESPONDENTS
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 10 March 2005 M61/2003
GLEESON CJ, GUMMOW, HAYNE AND HEYDON JJ;
As s 71 of the Constitution says, what is "vested in a Federal Supreme Court, to be called the High Court of
Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with
federal jurisdiction" is the judicial power of the Commonwealth, that is, the judicial power of the national polity.
No matter whether the judicial branch of government is separated from the other branches of government (as it is
and must be at the federal level[29] but, at least generally, is not at the State level[30]) it is, in Quick and
Garran's words[31], "the third great department of government".
Where the High Court of Australia sees itself as part of the government, rather then a independent
body created under the Constitution then in itself this to me indicates the implied bias. As where it
consider itself to be a “department of government” then I view it has lost the plot! Its function by
this prevents it to be an independent arbitrator to adjudicate as a GUARDIAN OF THE
CONSTITUTION between the parties before the Court. It might have quoted Quick & Garran
but this is an ill-conceived conduct as if anything it underlines that the High Court of Australia
rather then to be a constitutional Court now seek to rely upon what Quick & Garran might have
assigned to them that somehow the High Court of Australia is under the control of the Government
by being the “third great department of government” rather then being an independent judicial body
within the Commonwealth of Australia.
Mr. BARTON (New South Wales).-I beg to move-

That this Convention cordially invites the Prime Minister of each colony here represented to provide for the
supply of copies of the Draft of the Commonwealth of Australia Constitution Bill, as now finally adopted by this
Convention, to the electors of his colony.
This motion will, I hope, give the members of the Convention an opportunity to state from their places in
this chamber to the electors who sent them here their opinion of the Draft Bill and its provisions. I think
that on this, the last day of our meeting, it is only fit that some opportunity should be given to honorable
members so to express their opinions that the statement of them in an authoritative form, as printed in the
official report of the debates, may reach those whose verdict upon the Bill is so soon to be sought.
It is very clear that the official reports of the Debates was intended all along to be used by those
who had to give their verdict upon the Bill. As such, the Hansard debates records very much was to
be used by the electors to give them an understanding what the Commonwealth Constitution Bill
was standing for.
Those who voted for the Bill clearly relied upon their political and religious freedoms as was set out
in the official records, and as such the Hansard official records of the Debates must be considered as
part of the Constitution. Hence the political freedom how to live is clearly provided for by the
Framers without undue government interference. Therefore, the Commonwealth legal requirement
to having to live in a certain manner as the Federal Government may desire and in what manner
(pattern) is unconstitutional, as like the piggy tail case in the USA was!
Mr. GORDON:
These remarks are in themselves trite, but they are necessary to the short argument which I shall make, and the
point of which is, that in the Constitution we are about to formulate, [start page 317] we should make the
smallest draft which can be made consistently with cohesion, upon the allegiance of the people of these States to
the Governments under which they at present live. They are the governments to which they are accustomed; they
are the governments they have themselves moulded into effective legislative machines under which a greater
share of political liberty is experienced than in any countries the world ever saw
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.
Yes, I experienced this, as set out below in more details, where the High Court of Australia were
fraternizing with the first Defendant in proceedings before the court, and subsequently railroaded,
as I view it, the case.
A liberty that now is denied in unconstitutional manner by the very High Court of Australia who
was to be the GUARDIAN OF THE CONSTITUTION.
The liberty that people now are forced to accept federal government dictated contract conditions
regardless this was specifically prohibited by the Framers of the Constitution to be allowed. What
kind of liberty is this one may ask.
Mr. FITZGERALD:
Another case I understood the hon. member, Sir George Grey, to put was that be favoured the
appointment of the governor-general of the future dominion of Australia being a colonial appointment.
But as long as this country is united to the Crown of England-and I hope that it is a very long day off
indeed when it shall cease to be so-I maintain that the governor-general of the future dominion of
Australia must be the appointee of her Majesty the Queen, our sovereign, who is the apex of that
structure, and whose name we revere and respect in this colony equally as in any other [start page 165]
part of her Majesty's dominions.

Sir JOHN DOWNER: The system to which I have just alluded has been in force 100 years, and has worked
well, and in beginning the erection of this new edifice we ought to be careful we do not make a foundation
mistake, for while we are pretending to make these judges the protectors of the citizens in the Commonwealth,
and even superior from certain points of view to Parliament itself, at the same time we ought not to give
Parliament, against whose unauthorised acts we intend the High Court to protect us, authority to remove the
judges without the greatest cause and the gravest trial. I think this is a matter well worthy of the serious
consideration of hon. members. We should make our Supreme Court so strong and powerful that no Government
will be able to set the Constitution at defiance owing to the presence of a majority in either House, whereby an
authority would be obtained that was never intended by the founders of the Constitution.
And
Sir EDWARD BRADDON: I think the feeling in regard to this clause has been that it should be made as
difficult as possible to amend the Constitution. The idea underlying the clause is to provide that, while an
amendment of the Constitution is not made absolutely impossible, the Constitution shall not be so easily
capable of amendment that in any fluctuation of public opinion, any change of feeling on the part of the
people in some crisis of a temporary character, it might be changed.
Mr. DEAKIN: A majority of the whole people, and a majority of the States.
Sir EDWARD BRADDON: Yes; an absolute majority of the members representing the States in the Senate
and House of Representatives. I do not think this is too much to ask in such an important matter as an
amendment of the Constitution, and, while I would not say the Constitution should be such as could only be
amended by force of arms, I hope we shall provide all necessary safeguards against its being lightly amended.
Mr. ISAACS: I hope these words will be eliminated. I should like to point out the meaning of the clause.
There is power given for the intervention of the people on the question of the amendment of their
Constitution, but that power is merely by way of veto. Unless the proposed amendment of the Constitution
first succeeds in passing an absolute majority of both Houses of the Legislature the proposition never reaches the
people for their determination at all.
Mr. MCMILLAN: You mean there is no initiative like there is in Switzerland.
Mr. ISAACS: There is no initiative, but I mean something more. It is possible for an absolute majority of
either House to prevent the people from expressing their views on the amendment of the Constitution. I think
that is wrong. If we are to provide for a mere majority of the Legislature to alter the Constitution, then I
could understand the complaints of some of my hon. friends that that was too easy a mode, but the
decision of the Legislature in this case is not intended to be final, and the passing of the amendment of the
Legislature is intended to be the means of ascertaining whether this proposition is of so great an
importance, of such great interest, and of such necessity as to require the consultation of the people. I can
quite understand that circumstances have not failed to occur in some colonial Legislatures where by some
accident a proposition has passed the Houses, but has failed to get an absolute majority. I can quite understand
why it is necessary in cases where the voice of Parliament is sufficient in itself to establish a new law amending
the Constitution to have an absolute majority, and with much more reason than in the present case. Although we
are dealing with the question of amending the Constitution, we have to recollect that it never can get
passed into law without the sanction of a majority of the States and people. Now, surely that is safeguard
enough.
Mr. HOWE: An ordinary majority.

Mr. ISAACS: This is only preliminary to getting to the people, and then you have in the States the
amplest power of rejecting a proposal, and in the population you have similar power of rejecting a
proposal if it is not in accord with the views of the people.
And
Mr FRASER: If you have not an absolute majority of both Houses you allow a minority to past; the
amendment. The most liberal man on earth would not ask for such a proposition as that. The reference to the
United States is a different thing altogether, and has no analogy to our conditions. The 1891 Bill contained the
same provision, and why should you make an alteration merely for the sake of creating strife and confusion? The
Constitution should not be altered to every gust of wind that blows hither and thither.

Mr. HOWE: Who blows? The lawyers?
Mr. FRASER: It is not desirable that an alteration of the Constitution should be effected except at the
wish of the majority of the people.
And
Mr. LEWIS: I should like to call attention of the Committee to the way in which this clause is drawn. The
proposed alterations must be approved by the electors of a majority of the States. The people of the States whose
electors approve are also a majority of the Commonwealth. The proposed alteration should, in my opinion, be
approved by a majority of the States, and also by a majority of the electors who record their votes upon the
referendum that may be taken upon the proposed law. That is a very different thing to what is presented here.
I need not delay the Committee, because the difference will be seen at once. I have an amendment to the effect
that the proposed alteration should be approved by the electors of a majority of the States and by a majority of
the electors who vote.
Mr. BARTON: That would not secure a majority of the Commonwealth.
Mr. LEWIS: Under this system one large colony might join with two or three smaller ones, and their votes
would override the votes of another large colony which had joined with one of the small colonies,
notwithstanding that a large majority of the electors in the Commonwealth decided against the proposed
alteration.
And
Mr. DEAKIN: I was struck by the point raised by Mr. Lewis. It Seems a very fair one to raise, and a very fair
one to insist upon if there were a uniform franchise through the Commonwealth. One obstacle is that in South
Australia at present there is a different franchise from that obtaining in any other portion of the Australian
continent, and the double voting power in that colony and in any which follow its example would be certainly
unfair to the remaining States. If the franchise were uniform I do not think that the more populous States should
have their abstinence from voting allowed for, as it is in this plan. It might even enable them to negative a
proposal which secured, not only a majority of the States, but actually a majority of those persons who
took the [start page 1026] trouble to go to the poll. This plan would not enable a proposal to be carried unless
the States in the majority were also the most populous States of the group. It is right to require a majority of the
States as States. But why should you require that the people of the States whose electors approve of the alteration
should also contain a majority of the people of the Commonwealth? One can conceive that if you have one State
much outstripping the others in population, although You might have practically all the other States, except
perhaps one small one, in favor of the proposed reform, and although a majority of those who went to the poll
were in favor of the proposed reform, the population in the oustanding State would be so numerous that the
majority of the States would not include a majority of the Commonwealth. The amendment would be defeated
solely by the abstinence from voting of that very large State.
And
Mr. SYMON: That is not just, because you are not getting a majority of the people, only a majority of
those who vote -a quarter of the people may vote. I suggest that we ought to reconsider that part of the
agreement.
And
Mr. KINGSTON:
If you get two things, namely, a majority of the State electors who vote on the subject and a majority also of
the electors of the whole Commonwealth in favor of the proposed alteration, I think that is all you ought to
require.
And
Mr. BARTON: I should be glad to do anything that is reasonable, but Mr. Lewis's amendment as it stands is
one which we cannot accept. That is the one which proposes first that there should be a majority of the States,
and then a majority of the electors voting If we have five States joined together, of which one has female
suffrage, then the electors count for double those of the other States. Then, in the case of a State which has the
one man one vote system, that counts for two, and there is the difficulty. As no one can give me a way out of the
difficulty, I think we had better adhere to the proposal in the Bill.
And

Mr. KINGSTON: I think that to strike out the words would be both sufficient and effective. I would like to
know from Mr. Barton if he means that it should not become law without the consent of the electors of the
State. There is no provision for taking a poll.
Mr. BARTON: Yes; there is a provision for a poll. It is that it shall not be effective unless the majority of the
electors are in favor. It must be passed by the electors of a majority of the States, who are a majority of the
people of the Commonwealth. There is only one way of carrying a proposal, and that is by a majority.
Mr. KINGSTON: I suppose that is a majority of the people who vote, and would like the hon. member to
say so.
Again;
“It might even enable them to negative a proposal which secured, not only a majority of the States, but
actually a majority of those persons who took the [start page 1026] trouble to go to the poll.”
Again;
and also by a majority of the electors who record their votes upon the referendum that may be taken upon
the proposed law.
Again;
Mr. SYMON: That is not just, because you are not getting a majority of the people, only a majority of
those who vote -a quarter of the people may vote. I suggest that we ought to reconsider that part of the
agreement.
It refers to “who record their votes” and not who are registered/enrolled, as “political liberty”
ensures the right to abstain from voting.
Do not Members of Parliament themselves use this right to abstain from voting?
Mr. DEAKIN: The sub-section reads:
But an alteration by which the proportionate representation of any State in either House of the Parliament or the
minimum number of representatives of a State in the House of Representatives, is diminished, shall not become
law without the consent of the electors of that State.
This underlines that while Section 128 provides for the manner in which a Commonwealth of
Australia referendum is to be held it does however not deal with how State referendum must be
held regarding the referral of powers , the diminishing of representatives in the Federal parliament,
etc. nevertheless, as this documents sets out also the Commonwealth Powers (Industrial Relations)
Act 1996 is not constitutionally valid as it never had the approval by a State referendum and neither
did the Victorian parliament to make it a permanent reference of legislative powers within the ambit
of Subsection 51(xxxvii) of the Constitution. Likewise the Victorian Parliament had neither any
State referendum approval to support the purported Australia Act 1986. The High Court of
Australia, cannot, as it did in Sue v Hill make a political conclusion/decision but is bound to
determine matters on legal facts before the Court. It has no constitutional position to assume some
transformation of the Commonwealth of Australia without even the approval of the electors by way
of a Section 128 referendum, and the fact that the judges themselves acknowledged that there was
no decisive issue as a legislative action that could even determine when this purported
transformation occurred then the Australia Act 1986 is and remains to be ULTRA VIRES. This
document provides various quotations in support of this also.
Mr. DEAKIN: I trust the clause will not be passed without some little further consideration. The proposition
of the hon. member is one which I should have made myself, or, rather, which I was considering, but for the
obvious objection to me that it fulfils too much the idea of the hon. member, Mr. Donaldson, of making reform
almost impossible. I take it that one of the first principles of the Constitution is that we present it to the
several colonies, not as a complete constitution, but as one which they can make complete; not as a
constitution necessarily adapted to their needs and desires, but one which they can themselves adapt to
those needs and desires. The amendment of the hon. member, Mr. Playford, is fair, and the only possible
objection that can be raised against it is that it makes the carrying of amendments in the constitution extremely
difficult. But the question is whether that is not desirable in order that the amendments that are carried may be
equitable. The proposal that was carried in the Constitutional Committee, and commended to the Convention,
was, that first a majority of the states, and then of the whole of the people, be required before any amendment be
carried. The matter ought not to be lightly passed over, nor should there be an acceptance or a rejection of the
clause without debate.
Mr. GILLIES: There is some misapprehension about this matter. It is said that there shall be a majority of the
states, and then of the people; but in the house of representatives there is a majority of the people.
Mr. MUNRO: No. Representatives very often vote against their promises. We want to refer the question to
the people!
And
Mr. OCONNOR.-If a state referred question of state finance it might be dealt with.
Mr. SYMON.-Does the honorable member say that that would be a desirable thing to do?
Mr. BARTON.-Is it not for the people of the state to determine whether it is desirable?
And
Sir JOHN DOWNER.-Yes, the cases might be infinite. Take a question of disputed territory, for instance.
What could be more proper than that Victoria, if she became reasonable for once, should say-"Look here, we
know we promised to do it; we know we have broken our promises; we acknowledge our transgressions, and will
refer the matter at once to the Federal Parliament"? Who would blame her? Certainly not South Australia. Even
in connexion with the question of rivers some point might arise that might concern two or three colonies, and
that could not concern all the colonies. That, again, might be a proper matter for reference, but it could not be a
common matter of legislation in respect of every state. I will now take the points Mr. Deakin makes. He
doubts whether this power of legislation will carry with it a power of raising the necessary money to give effect
to the legislation.
Again;
That, again, might be a proper matter for reference, but it could not be a common matter of legislation in
respect of every state.
And
Mr. ISAACS (Victoria).-
Parliament the passing of any law that is to affect itself alone. But if it agrees with another state that some law;
not to be of universal application throughout the Commonwealth, but to affect it and that other state alone,
should be passed, power should be given in some such clause as this to ask the Federal Parliament to enact that
what both states desire shall be of common application to them.
Clearly, the Australia Act 1986 being a common matter in respect of every state fell outside the
provisions of Subsection 51(xxxvii)!
Al-Kateb v Godwin [2004] HCA 37, 6-8-2004

69. Failure to see the difference between taking into account political, social and economic developments since
1900 and taking into account the rules of international law is the error in the approach of those who assert that
the Constitution must be read in conformity with or in so far as it can be read conformably with the rules of
international law. Rules are specific. If they are taken into account as rules, they amend the Constitution. That
conclusion cannot be avoided by asserting that they are simply "context" or elucidating factors. Rules are too
specific to do no more than provide insights into the meanings of the constitutional provisions. Either the rule
is already inherent in the meaning of the provision or taking it into account alters the meaning of the provision.
No doubt from time to time the making or existence of (say) a Convention or its consequences may constitute a
general political, social or economic development that helps to elucidate the meaning of a constitutional head
of power. But that is different from using the rules in that Convention to control the meaning of a
constitutional head of power. Suppose the imposition of tariffs is banned under a World Trade Agreement. If
that ban were taken into account - whether as context or otherwise - in interpreting the trade and commerce
power HYPERLINK "http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high%5fct/2004/" \l "fn69"
[70] , it would add a new rule to the Constitution. It would require reading the power to make laws with
respect to trade and commerce as subject to the rule that it did not extend to laws that imposed tariffs. Such an

approach, in the words of Dixon J, cannot be "countenanced" HYPERLINK "http://www.austlii.edu.au/cgi-
bin/disp.pl/au/cases/cth/high%5fct/2004/" \l "fn70" [71] .
Again;
If this Court had to take a rule of international law into account in interpreting those powers, the rule would
either confirm what was already inherent in the powers or add to or reduce them. If the international rule is
already inherent in the power it is irrelevant. If it is not, its invocation alters the constitutional meaning of
"aliens" or "judicial power of the Commonwealth" or both.
Therefore, the Constitution cannot be deemed to have been amended over time merely because
public perceptions may have changed, as the Constitution must be interpreted as to what the
intentions were of the Framers of the Constitution at their time.

Consequently, if it were proposed to add a legislative power of the kind suggested by Mr. Holder, I take it
that as Chapter VIII. provides first for the passage of the proposed law by an absolute majority, and
then for a referendum, the law would have no effect unless the majorities of the several states agreed to
it.
And
Dr. QUICK (Victoria).-I think the point taken by my honorable friend (Mr. Deakin) is one well worthy of the
consideration of the Drafting Committee, and probably the difficulty to which he has drawn attention could be
obviated by some such provision as that which he suggested. But this matter has struck me also from another
point of view, and it seems to me that the provision affords an easy method of amending the Federal
Constitution, without referring such amendments to the people of the various states for their assent. Now,
either when the state Parliaments have referred these matters to the Federal Parliament, and the Federal
Parliament has dealt with such matters, that becomes a federal law, and cannot afterwards be repealed or revoked
by the State Parliaments-that is one position, and in that case, of course, the reference once made [start page 218]
is a reference for all time, and cannot be revoked, so that to that extent it becomes an amendment of the
states' Constitution, incorporated in and engrafted on the Federal Constitution without the consent of the
people of the various states. On the other hand, if that be not so, and the states can, after making such
reference, repeal such reference, what is the result? You have a constant state of change-no guarantee for
continuity or permanence-in this class of laws, and this might lead to a great deal of confusion and a most
unsatisfactory state of things. My principal objection to the provision is that it affords a free and easy method of
amending the Federal Constitution without such amendments being carried into effect in the manner provided by
this Constitution.
Mr. BARTON.-I cannot understand how it gives an opportunity of amending the Federal Constitution.
This, as the reference of legislative powers are not enforceable or acceptable by the Commonwealth
Parliament unless first having been accepted by a referendum under Section 128! As shown below!
See also for further detail; Chapter 005 The Westminster Act is ULTRA VIRES
Mr. BARTON: That is quite true; I had forgotten that. I have always thought that the practice in New
South Wales has been a perplexing and hampering one. I think it is very much better to make the law read as
it is, that the passage shall not occur until there has been a message. There are many circumstances under
which a message might not be obtained by a Government, although they might find it necessary in an emergency
to propose a vote or resolution. So long as the Queen's assent is given to that proposed procedure by
message before the final act is taken of carrying it into law, the prerogative of the Crown is sufficiently
guarded. And if we try to apply restrictions of this kind, so as to hamper the very origination of matters, we are
extending the application of the prerogative of the Crown, instead of really exercising the popular right, and then
applying that prerogative to the effectuation of the popular right.
And
Mr. REID: The clause says:
Which has not been first recommended.
You will have to leave out one word there.
Mr. BARTON: I have that word clearly in my mind, but the word "first' relates to the word "pass." You
cannot pass a thing which has not been first recommended; that is first recommended before you pass it.
Mr. SYMON: Precisely.
Mr. BARTON: With regard to a vote or resolution, it would be necessary to have a message before you
pass such vote or resolution; with regard to a Bill, you must have a message before you pass the Bill. This
clause gives greater liberty to Parliament than the restrictive application proposed, and I am therefore
entirely in favor of retaining the words of the clause. Mr. Isaacs has raised a question with reference to
"proposed law."
Mr. ISAACS: I do not like the words "proposed laws," because it has a technical meaning in other parts of the
bill. The word "Bill" ought to be there.
Mr. BARTON: I do not propose to alter without very good reason the phraseology of this Constitution Bill to
which we are accustomed. A Bill is a proposed law until it becomes an Act.
Mr. HIGGINS.-Suppose the sentry is asleep, or is in the swim with the other power?
Mr. GORDON.-There will be more than one sentry. In the case of a federal law, every member of a state
Parliament will be a sentry, and, every constituent of a state Parliament will be a sentry.
Mr. GLYNN (South Australia).-
Then, following out the idea that this Constitution takes its origin from the people, when we are seeking
the element's of its renovation and repair we throw it back upon its source, and appeal to the popular
voice for a justification of any improvement or alteration which time may necessitate.
And
Mr. BARTON.-
Court is to be final.
Again;
the interpretation of the Constitution by the High Court is to be final.
This does not include for the High Court of Australia to use a backdoor manner to alter the
application of the Constitution, to “twist or infringe its provisions” (Mr Barton, Hansard 17-3-
1898). Just that I view we lack competent judges serving at the High Court of Australia as their
judgment appear to me far to often to lack a display of competence about certain constitutional
issues to be shown.
Mr. BARTON.-

Again;
I think it is right and fit that the highest court in Australia should be left as the guardian of the expressions of the
people, and the sole body to determine finally what the people meant when they used those expressions.
And again;
what the people meant when they used those expressions.
As such not what judges consider to be applicable upon “contemporary” views, or what Delegates
to the Constitution Convention later may have fabricated when they were appointed to judicial
position as to perhaps achieve what they were defeated in during the Debates.
Isaacs, as I understood it would have desired to have the entire industrial relations legislation
handed over the Commonwealth of Australia, but failed in this and therefore any statement he made
since Federation must be considered with this in mind. Likewise so with other Delegates to the
Constitution convention who later were in positions to perhaps seek to twist the true intentions of
the Framers of the Constitution to what they themselves all along desired. Indeed, I view to some
extend Dr Quick (later Sir John Quick) seemed to be a clear example in this.
The Right Hon. G.H. REID: And we shall have to fight it over again in Melbourne.
The Hon. I.A. ISAACS (Victoria)[4.27]: Of course we have to bow to the pressure of circumstances. May I say
one word to my hon. friends on the Drafting Committee in relation to clause 52? In the United States
Constitution power is given to the commonwealth to legislate in very wide terms. The question will be
constantly arising whether the commonwealth parliament has power to legislate on any particular matter.
There is no doubt whatever that they are to he restricted by the powers expressed or implied in the
constitution bill. We have not got exactly any precedent quite analogous. We have gone very near to the United
States Constitution, but I should like to point out how the same words used in a different relation may lead to
very different results. In our bill, clause 52 provides that the parliament may have full power and authority
to make laws for the peace, order, and good government of the commonwealth, with respect to all or any
of the matters following. It then winds up with the sub-clause:
Any matters necessary for, or incidental to, the carrying, into execution of the foregoing powers-
They are specifically mentioned:
or of any other powers vested by this constitution in the parliament or the executive government of the
commonwealth or in any department or officer thereof.
It seems to me that if you want to legislate in regard to the judiciary, you might be met with some difficulty.
There is a power given, but it is very limited; it is to do specific things. My hon. and learned friend may be
able to find that power.
And
The Hon. E. BARTON: All these in clause 52 are in the parliament!
The Hon. I.A. ISAACS: But there am many provisions of the bill in relation to the parliament which are
not powers vested in the parliament.
The Hon. E. BARTON: Does the hon. member mean to say that they are mere permissions?
The Hon. I.A. ISAACS: Permissions given, and also provisions made in respect of the parliament, or one
single house of the parliament. I think it would be well if the wording were made so as to prevent any question
from arising in the future as to the power of the commonwealth parliament to legislate in respect of every one of
the subjects which are confided to the commonwealth as a whole.
Mr. HIGGINS.-
Sir JOHN DOWNER.-I mean Australian, and when I say colonial I do not [start page 1963] refer to one
colony. When I voted as I did it was in the belief that the trade and commerce clause would probably be
sufficient to give to everybody all that was required, and to give my right honorable friend (Mr. Reid) all that he
requires. It appeared to me that under the trade and commerce provision, before it would be competent for
the Federal High Court to interfere with any use by New South Wales of any of the waters of the rivers
running through her territory, it would have to be shown that it was injurious to trade and commerce.
Clearly, despite Section 100 of the Constitution the High Court of Australia would be required to
find some connection to be able to invoke jurisdiction.
As will be shown below, if the provisions of subsection 51(xx) “foreign-corporations, and trading
or financial corporations formed within the limits of the Commonwealth” was to have the widest
possible meaning it purports to apply, then why not just rely upon subsection 51(xii) “currency,
coinage, and legal tender” which is used throughout any ones life and using this in the widest
possible context would do away with any limitations elsewhere in the Constitution.
Why at all did the Framers of the Constitution have to bother with the terminology of each and
every word used in subsections if it could have simply drafted one clause “currency, coinage, and
legal tender” to comprehend the unlimited powers. The mere fact that the Framers of the
Constitution stated specific headings means that any subject of a subsection was to be recognised in
its own right and not be swallowed up by any other heading. Indeed, the powers of trade and
commerce were defined in the Debates not to be as wide as to be able to control every aspect in life
and neither that Subsection (xx) could swallow up this subsection. The Framers of the Constitution
specifically provided headings which related to certain subjects and where there was a subject
specifically listed in another subsection then clearly no transgression could be made into the subject
matter of another subsection where it would not be permissible within the legislative powers of that
subsection itself. Therefore, any legislative powers within subsection (xxxv) “conciliation and
arbitration for the prevention and settlement of industrial disputes extending beyond the limits of
any one State” cannot be enlarged by artificially using another heading not at all designed for that
purpose. To me the word “conciliation” could mean “reunion” which got nothing to do with a
person seeking employment, as reunion would not be the appropriate word in that context. Likewise
the word “arbitration” could not be used in this context as there is no arbitration required to settle
some dispute where there is none. If a person knocks on the door to inquire about employment then
there is no dispute existing. Hence, the powers of subsection 51(xxxv) cannot apply. The freedom
of association and “civil rights” cannot be dictated by any Government, even so in recent times the
Federal Government has become the terrorist upon the “general community” inciting hatred in its
Muslim phobia to incite Muslims to turn against certain Muslim leaders because they do not like the
comments of certain persons, regardless that in law this person is entitled to cast his views. Rather
then to charge a person for libel or vilification or whatever may be applicable we have now a
Federal government that usurps the judiciary by simply acknowledging it has no constitutional
powers incite people to turn against each other. This is the kind of treacherous conduct now coming
from the federal government, which was also clearly shown with the CHILDREN OVERBOARD
claims, etc.
A Court of law must resit to rule upon a political agenda but regretfully it appears to me that the
High Court of Australia is more ruling under the political mastery of the federal government then to
rule on “facts” of law. It has even gone as far as to “fabricate’ some version of independence” in the
Sue v Hill case without a shred of “legal argument” to prove conclusively its legal justification for
this. As such, the Court has by far exceeded any judicial powers by substitution the “facts” its own
political agenda/bias versions/views. This book address, albeit not all, numerous issues including
the question of credibility of the judges themselves.
While the court may rely upon Isaacs having been a Framers of the Constitution and his further
positions as a judge, Governor-General, etc, the true picture should be understood that Isaacs knew
from the Constitution Convention Debates that no Governor-General could be appointed upon the
recommendation of the Australian Government but that it was explicitly stated that it must be a
person who represented the Queen being recommended by the Home Office at 10 Downing Street,
as to avoid some political lapdog being recommended by the Australian Government. How
dangerous this unconstitutional change is can be shown where John Howard authorised
unconstitutionally the deployment of troops into the sovereign nation Iraq despite the governor-
General having effectively refused to invoke prerogative powers to publish in the Gazette a
DECLARATION OF WAR and yet even the High Court of Australia itself rather then to speak on
behalf of the “general community” not to tolerate this kind of treachery being the GUARDIAN OF
THE CONSTITUTION deliberately refused to act and by this must be perceived to have
condoned this unconstitutional conduct. No more evidence can be clearer about this then its conduct
on 19 March 2003, the very day of the murderous armed invasion into Iraq, where the High Court
of Australia refused to consider the case I had lodged with the Court supported by a massive eight
hundred page Affidavit, as to seek within Section 75(v) of the Constitution an order of
prohibition/mandamus.
This book does not permit to set it all out, in particularly not the printed version, and neither is there
any need for to do so as it has been already extensively set out in the many books I have already
published in the INSPECTOR-RIKATI® book series.
Also, having succeeded in my appeals on 19 July 2006 with all constitutional issues I raised
remaining UNCHALLENGED it cannot be taken away from me that I defeated, in an about 5-year
legal battle the Federal government lawyers, and as such earned the credibility to have been right in
the numerous constitutional issues I had raised (including a Section 78B NOTICE OF
CONSTITUTIONAL MATTERS), despite that the High Court of Australia having refused to
address the very issues when it was placed before it year earlier.
Convention) (Chhapter 33 of the CD)
Mr. HIGGINS.-Suppose the sentry is asleep, or is in the swim with the other power?
Mr. GORDON.-There will be more than one sentry. In the case of a federal law, every member of a state
Parliament will be a sentry, and, every constituent of a state Parliament will be a sentry.
Mr. GLYNN (South Australia).-
Then, following out the idea that this Constitution takes its origin from the people, when we are seeking
the element's of its renovation and repair we throw it back upon its source, and appeal to the popular
voice for a justification of any improvement or alteration which time may necessitate.
This does not include for the High Court of Australia to use a backdoor manner to alter the
application of the Constitution, to “twist or infringe its provisions” (Mr Barton, Hansard 17-3-
1898). Just that I view we lack competent judges serving at the High Court of Australia as their
judgment appear to me far to often to lack a display of competence about certain constitutional
issues to be shown.
The Right Hon. G.H. REID: And we shall have to fight it over again in Melbourne.
The Hon. I.A. ISAACS (Victoria)[4.27]: Of course we have to bow to the pressure of circumstances. May I say
one word to my hon. friends on the Drafting Committee in relation to clause 52? In the United States
Constitution power is given to the commonwealth to legislate in very wide terms. The question will be
constantly arising whether the commonwealth parliament has power to legislate on any particular matter.

There is no doubt whatever that they are to he restricted by the powers expressed or implied in the
constitution bill. We have not got exactly any precedent quite analogous. We have gone very near to the United
States Constitution, but I should like to point out how the same words used in a different relation may lead to
very different results. In our bill, clause 52 provides that the parliament may have full power and authority
to make laws for the peace, order, and good government of the commonwealth, with respect to all or any
of the matters following. It then winds up with the sub-clause:
Any matters necessary for, or incidental to, the carrying, into execution of the foregoing powers-
They are specifically mentioned:
or of any other powers vested by this constitution in the parliament or the executive government of the
commonwealth or in any department or officer thereof.
It seems to me that if you want to legislate in regard to the judiciary, you might be met with some difficulty.
There is a power given, but it is very limited; it is to do specific things. My hon. and learned friend may be
able to find that power.
The Hon. E. BARTON: Look at clauses 76, 77, and 78!
The Hon. I.A. ISAACS: I am not sure they go far enough. I would also point out that in section 8, subsection
18, of the first article of the American Constitution, the Congress has power
to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all
other powers vested by this constitution in the Government of the United States, or in any department or officer
thereof.
Now, the word "government" there has a very large signification. It means the whole of the legislative,
judicial, and executive departments of the government, and any officer and any department thereof. A
departmental officer in the United States means an officer of the whole government, which is a much wider
signification than the other. A question has arisen in my mind in two or three places throughout this bill whether
the parliament has power to make laws in certain cases-not in two or three cases, but in very numerous cases;
[start page 1091] and a question may arrive as to whether the last sub-clause of clause 52 in wide enough in that
respect. There are many provisions in relation to the parliament which do not consist of power is vested in the
parliament.
The Hon. E. BARTON: All these in clause 52 are in the parliament!
The Hon. I.A. ISAACS: But there am many provisions of the bill in relation to the parliament which are
not powers vested in the parliament.
The Hon. E. BARTON: Does the hon. member mean to say that they are mere permissions?
The Hon. I.A. ISAACS: Permissions given, and also provisions made in respect of the parliament, or one
single house of the parliament. I think it would be well if the wording were made so as to prevent any question
from arising in the future as to the power of the commonwealth parliament to legislate in respect of every one of
the subjects which are confided to the commonwealth as a whole.
Mr. CLARK:
What we want is a separate federal judiciary, allowing the state judiciaries to remain under their own
governments.
Consider the Forge case of 1996 that held that the State Supreme Court somehow was subject to
Chapter III of the Constitution. Clearly this is not what the Framers of the Constitution had
intended.

with them in this Constitution. We leave that amongst the reserved powers of the states, and, therefore, having
done nothing to make insecure the rights of property and the rights of liberty which at present exist in the states,
and having also said that the political rights exercisable in the states are to be exercisable also in the
Commonwealth in the election of representatives, we have done all that is necessary.
Again;
The administration of [start page 1766] the laws regarding property and personal liberty is still left with
the states.
Mr. DEAKIN:
When the question of a second chamber comes to be considered, they will assuredly not be satisfied to possess
less freedom. More than this. In framing a federal constitution, we should set out with the explicit claim to
possess and exercise all the rights and privileges of citizens of the British empire to the same extent that
they are possessed and exercised by our fellow -countrymen in Great Britain itself.
Mr. HOLDER (South Australia).-
We have deliberately decided previously that the Constitution should only be amended by direct appeal to
the electors, in which the vote shall be counted in two ways. I do not propose to alter that provision in the
slightest degree. We have provided that measures altering the Constitution shall only come into force after they
have been carried by absolute majorities of both Houses. I include the same provision in this clause. Before a
matter can be sent to the referendum, both Houses must by absolute majorities agree thereto.
And
I admit freely that as the Constitution is a deed of partnership, it is absolutely necessary to have the High
Court to interpret it, and to see that the various co-partners keep in all that they do within the four
comers of the deed to which they have agreed.
Mr. HIGGINS.-
I think an alteration with regard to the rest of the Constitution, what I may call the machinery part, ought
to be much easier than the forms for altering the Constitution with regard to the powers conferred by the
states on the Federal Commonwealth. If a number of the states come together and say-"We are willing to
surrender certain powers to the Central Government,
Mr. O'CONNOR:
We know it is easy to bring the pressure of the majority of public opinion on one House for the purpose of
obtaining a violation of the law. This is not intended to be a protection to the House or the Representatives of the
House, but to the States represented in the House; that no matters of tactics between the Houses, or no playing off
of public opinion by one House against another, shall ever take away the protection embedded in the Constitution
for the States. I have heard of the argument of the inconvenience of laws being upset on account of some
invalidity being discovered-some trifling invalidity, perhaps. I say you must submit to that inconvenience if you
wish to enter a Federal Constitution. The very principle of the Federal Constitution is this: that the
Constitution is above both Houses of Parliament. That is the difference between it and our Houses of
Parliament now. The Federal Parliament must be above both Houses of Parliament, and they must conform
to it, because it is in the charter under which union takes place, and the guarantee of rights under which
union takes place; and, unless you have some authority for them to interpret [start page 592] that, what
guarantee have you for preserving their rights at all. It is very necessary to insert this provision in the
Constitution, because if you do not do that then these questions are questions of procedure between the two
Houses in which undue pressure may be brought to bear at any time on one House or other for the purpose of
vetoing a law and doing injustice to the States represented in that House in the different ways in which the States
are represented. As to the inconvenience, there are thirty-two different subjects of legislation here which may be
dealt with by the federal authority, and in regard to any one of these if an error is made which takes the law
outside the authority which is given to the federal power it is invalid-absolutely void-no matter what
inconvenience may follow.
Mr. REID:
The Supreme Court of the United States is not a court created by Parliament, as the draft Bill proposed our
Federal Court should be. It is a court embedded in the Constitution itself, and it is essential to the just exercise
of federal powers that this Supreme Court shall be strong enough to do what is right-strong enough to act
as the guardian of all the rights and liberties of the States and people of Australia. I am glad that Mr. Barton
agrees with me in this respect.
Mr. BARTON.-
. I do not think that that applies at all, however, to any power of regulating the lives and proceedings of
citizens, because we do not give any such power to the Commonwealth
His Honour CALLINAN J pointed out;

QUOTE
636 Part 2 of the Act establishes an Australian Fair Pay Commission ("the AFPC"). The principal of its functions
is "wage-setting" as referred to in ss 21(a) and 22(1).
END QUOTE
QUOTE from Chapter 000

We have heard to-day something about the

fixing of a rate of wage by the federal authority.
That would be an absolute impossibility in the
different states.
If the Commonwealth and/or the State(s) were to have me as a consultant you might find that
a lot of rot could/would be avoided. On 21-7-2005 we had Treasurer Peter Costello commenting
(ABC, Lateline);
QUOTE
PETER COSTELLO: Well, this is not a question, I think, of taking state's rights. I think this is a question of
conferring new individual rights. The right to actually contract on an individual basis, the right to get a job, the
right to have higher wages.
And to actually portray this as some constitutional issue is completely wrong. Look, can I tell you from the outset
of Federation there was an industrial relations power conferred on the Commonwealth Parliament. You know
why? Because in the 1890s before Federation started it was understood that industrial disputation didn't respect
state borders, it can actually cross state borders and that's been going on for a very long period of time and if you
can have a better system which can deal with industrial relations disputes and wages and employment and
businesses, which don't stop at state borders, they actually trade across state borders you'd be a mug not to go
down the line that will give you a better system.
END QUOTE
Did anyone explain to Peter Costello that in 1890 there never were any State borders? States were
created out of the Colonies when they federated. As such Colonial borders existed in 1890!
Mr. MCMILLAN: It seems to me that we must decide whether we will give this power to the Federal
Government or leave it to the States. The object of Federation is, while federating on common matters, not
to interfere with the industrial and local life of the States. This is a proposition which goes a step too far, as
you are giving a distinct power to override the States legislation. Is the power simply to be exercised with
the consent of the States, or is it to be an overriding power.
Mr. KINGSTON: It is a power which the Federal Parliament may exercise.
An HON. MEMBER: If they make any law it will override any local law.
Mr. KINGSTON: Only where it is inconsistent.
Mr. MCMILLAN: I have no legal knowledge to guide me, but it seems to me that everything that we put
among these sub-sections is practically a power which necessarily overrides every other power, and therefore
there is no doubt that while in some trade disputes their ramifications extend throughout the different colonies,
still they are to a great extent local matters of dispute.
Mr. HIGGINS: It will only apply where the dispute extends outside the limits of one colony.
Mr. MCMILLAN: Here again I am met by my want of legal knowledge; but it seems to me that it is a
difficult thing for the Federal Government to interfere, even where the ramifications of the disputes
extend beyond the limits of a colony, without the consent of the States. I think there are sufficient powers in
this Bill to enable some conjunction of interests between the Federal Government and the States in matters of this
kind being effected; but I do not think that there should be any power included in this Bill which will so
interfere with the local industrial life of any State as practically to dictate to the State with regard to trade
disputes.
Sir JOHN DOWNER: I confess I do not understand the clause, nor do I see what it means.
Industrial dispute extending beyond the limits of one colony
are the words used, but how can that happen?
Mr. HOWE: A maritime strike affects the whole national life.
Again;
but I do not think that there should be any powe r included in this Bill which will so interfere with the local
industrial life of any State as practically to dictate to the State with regard to trade disputes.
Sir EDWARD BRADDON (Tasmania).-As one who voted in Adelaide on this subject, and as one who
believes to the fullest possible extent in the value of boards of conciliation and arbitration, if such boa rds and
courts can be arranged, I desire to justify in some measure my giving the same vote as I gave then. This
amendment does not hand over to the federal power the entire dealing with industrial disputes over the
whole of the Commonwealth, but only over so much of the Commonwealth as may be affected by those
disputes.
And
Mr. BARTON.-We do not propose to hand over contracts and civil rights to the Federation, and they are
intimately allied to this question.
And
If the honorable member's exclamation

Mr. BARTON.-
means more than I have explained, then the best thing to
do is to confide to the Commonwealth the right of
dealing with the lives, liberty, and property of all the
persons residing in the Commonwealth, independently
of any law of any state. That is not intended,
And
Yes; and here we have a totally different
Mr. BARTON.-
position, because the actual right which a person has
as a British subject-the right of personal liberty and
protection under the laws-is secured by being a
citizen of the states. It must be recollected that the
ordinary rights of liberty and protection by the laws
are not among the subjects confided to the
Commonwealth. The administration of [start page 1766] the laws regarding
property and personal liberty is still left with the states. We do not propose to interfere
We leave that amongst the reserved
with them in this Constitution.
powers of the states, and, therefore, having done
nothing to make insecure the rights of property and
the rights of liberty which at present exist in the
states,
Again;
If the honorable member's exclamation
Mr. BARTON.-
means more than I have explained, then the best thing to
do is to confide to the Commonwealth the right of
dealing with the lives, liberty, and property of all the
persons residing in the Commonwealth, independently
of any law of any state. That is not intended,
Mr. HIGGINS: There are some disputes which cannot be dealt with by one State alone.
If they arise in a particular State they

Mr. BARTON:
must be determined by the laws of the place where
And
END QUOTE from Chapter 000
QUOTE
675 It can be seen from those objects that the whole purpose of the Amending Act is not just to affect, but
is to govern completely, all aspects of the relationship between employers and employees, without any
attempt to connect, even by the narrowest of threads, those objects with some implementation of the
corporations power. The opening words are that the principal object is "to provide a framework for
cooperative workplace relations " and thereafter there is not to be found any reference of any kind in the section
to corporations or the corporations power. Stated objects of legislation are not to be put aside lightly.
END QUOTE
Mr. SOLOMON.-
We shall not only look to the Federal Judiciary for the protection of our interests, but also for the just
interpretation of the Constitution:
Sir JOHN FORREST (Western Australia).-
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;
Mr. GLYNN.-
We ought not to create the evil of making the Judges not merely interpreters, but the extenders of the
Constitution, and we ought to give the Constitution such a degree of elasticity as will render it capable of being
moulded to the changed conditions as time goes on, and prevent the dangerous alternative of judicial
expansion.
But, lets us first deal with an issue not a single judge somehow bothered to deal with in their
judgments. The issue being one of “CIVIL RIGHTS”
QUOTE
809 It is sometimes forgotten that at federation the colonies maintained their own defence forces.
Section 51(vi) refers, in terms, to the naval and military defence of the Commonwealth "and of the several
States", making clear that defence is to be exclusively a Commonwealth activity. There is something else
however that needs to be noted about this provision . It is that, literally, that is textually exclusively, it appears
to contemplate the use of the military forces of the Commonwealth to execute and maintain the laws of the
Commonwealth[1021] , at any time and in any circumstances. Elsewhere I refer[1022] to statements by
judges of this Court to the effect that constitutional provisions should be construed with "all the generality which
the words admit". The use of military forces, the imposition in effect of martial law in a democracy, except
perhaps in times of external threat or civil insurrection, is anathema to democracy itself, and yet, if
s 51(vi) is to be construed too generally and textually or literally, and without reference to other provisions
of the Constitution, including perhaps that all of the powers are to be exercised to make laws for the good
(democratic) government of the Commonwealth, that result might conceivably follow.
END QUOTE
QUOTE
810 Reliance was placed upon some remarks of Latham CJ in Pidoto v Victoria[1023] for a proposition
that because the defence power was not subject to any restriction imposed by s 51(xxxv), nor should the
corporations power be. Pidoto was decided in 1943 when Australia was still engaged in a war that
menaced the whole nation.
END QUOTE
My books already extensively refer to that the Framers of the Constitution did not accept the
Commonwealth to use its forces against any citizen in a State other then if specifically
requested to do so in case of “domestic violence” (then meaning to be; civil war). As indicated
in this document the Federal Government hasn’t even powers to increase taxes in time of war
outside the appropriation/tax Bill and as such hardly could be deemed to suspend “civil
rights” where it had no such legislative powers in the first place.
His Honour CALLINANA J also stated;

QUOTE
811 I next make reference to s 51(x), which is concerned with fisheries in Australia beyond territorial limits. My
reference to this placitum is not so much for the language that it uses, but to show how this Court has departed,
from time to time, from its earlier, and sometimes even relatively recent, decisions. In Bonser v La
Macchia [1025], Barwick CJ, Kitto, Menzies and Owen JJ (Windeyer J dissenting) held that the
Commonwealth Parliament had no power over fisheries under s 51(x) within three nautical miles of the
coast of an Australian Sta te.
END QUOTE
One should note that the Framers of the Constitution held that only within the 3-mile zone
existed powers as beyond fell within the UK Parliament powers, albeit accepted that it could
be extended in future times, pending British legislation.
* Didn’t CALLINANAN J raise the issue of Lange in Lange v Australian Broadcasting

Corporation of “freedom of speech?
**#** He did and I will quote this in a moment. The issue however is that this case before the Court
was not just one between the State’s and the Commonwealth of Australia as to who has certain
legislative powers, but was also and so in particular if the CIVIL RIGHTS of a worker to enter into
a contract upon local laws, of a State, could somehow be interfered with by the political union
called Commonwealth of Australia! You see, it is like the right to vote (Section 41 of the
Constitution) and the right therefore to not to vote.
* I get you, you refused to vote and succeeded in Court on constitutional grounds, is that it?
**#** You are on the right track. Not only did the Framers of the Constitution refuse to accept
compulsory registration and voting (Hansard 15-4-1897) but no Colony at the time had any
compulsory voting and the Framers of the Constitution made clear that people may desire not to
vote in referendums. Hence, Referendums are to be counted upon the number of people who are
actually voting and not upon the number of electors that might be entitled to vote. If one does a
close scrutiny of what the Debates were about you will find that the Framers of the Constitution
were very careful not to tie down the referendums to the number of electors entitled to vote but in
fact did debate that many may not desire to vote and so it should be considered upon the votes that
was actually done.
Mr. DEAKIN:
If the franchise were uniform I do not think that the more populous States should have their abstinence from
voting allowed for, as it is in this plan. It might even enable them to negative a proposal which secured, not only
a majority of the States, but actually a majority of those persons who took the [start page 1026] trouble to
go to the poll.
And
Mr. DEAKIN:
The amendment would be defeated solely by the abstinence from voting of that very large State.
In 1915, the Commonwealth of Australia contemplated to hold a referendum to make voting

compulsory but this was aborted. Since then some States introduced compulsory voting and then the
Commonwealth of Australia introduced on a private members bill in about 1923 for compulsory
voting legislation.
* So they were entitled to do so?
**#** No, because as the Framers of the Constitution made clear, the Commonwealth of Australia
could not restrict the rights of electors for what they had in their State legislative powers. As such,
at the time of the introduction of compulsory voting by the Commonwealth of Australia there were
several States who had no compulsory voting and as such the Commonwealth of Australia
unconstitutionally in that regard introduced compulsory voting.
* You stated “at that time”, is that meaning they could have done so if the legislation had been
introduced at a later stage after all States had introduced compulsory voting?
**#** No, because as I stated the Framers of the Constitution had specifically refused to give such
legislative power to the Commonwealth of Australia and as such the fact that the States introduced
compulsory voting could not somehow circumvent this embedded prohibition.
More over, we should look at what the Framers of the Constitution stated at the conclusion of the
Debates, having passed the Constitution Convention Bill 1898;
Mr. DEAKIN.-
In this Constitution, although much is written much remains unwritten,
And
Mr. DEAKIN.-
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.
Mr. SYMON (South Australia).-I wish to say one word or two before we part. I do not intend to enter into any
detailed examination of, or any elaborate apology for, the Constitution which we have been engaged in framing.
But, sir, no man can remain unmoved upon this momentous occasion. We who are assembled in this

Convention are about to commit to the people of Australia a new charter of union and liberty; we are
about to commit this 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 new charter is to be given by the people of Australia to themselves.
Again;
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.
The wording “political liberty” and “A charter of liberty is enshrined in this Constitution”
clearly underlines that while the commonwealth of Australia may put in place a general mode of
voting, as this they extensively debated, it could not however force anyone to vote or deny to vote.
* But, doesn’t the Commonwealth of Australia deny people to vote if they travel overseas?
**#** Well in certain instances it does and so unconstitutional as Section 41 of the Constitution
secure their right to vote, regardless if they desire to vote or not. It is their liberty to vote or not to
vote. The quotation above also makes clear it is;
This new charter is to be given by the people of Australia to themselves.
As such, where there are two parties in dispute about the legislative powers, being it the States
and/the Commonwealth then the High court of Australia cannot resolve this with a total ignorance
that the People own the Constitution and their rights and interest are not considered, but it must
consider if those “civil rights” are appropriately catered for as intended by the Framers of the
Constitution. Something I will address a bit later.
We now turn for a moment to the judgment of CALLINAN J
QUOTE
742 The Engineers' Case overruled D'Emden v Pedder[883] . Those who constituted the Court when the earlier
case was decided were, for the most part, closer in time, circumstances and knowledge to the Constitution, and
their substantial contribution to it, than the Justices who comprised the Court in the Engineers' Case. In
D'Emden v Pedder Griffith CJ found an implication in the Constitution of non-interference of the respective
polities with one another by necessity [884] . The joint judgment in the Engineers' Case criticized that
interpretation as depending upon an implication formed on the "vague, individual conception of the spirit of the
compact"[885] . I interpolate that it is difficult to reconcile this criticism with the inference by this Court of an
implication of freedom of political speech drawn by this Court many years later in Lange v Australian
Broadcasting Corporation [886] , not from the spirit of the compact, but from the "structure"[887] of the
Constitution and on the basis of the judges' perceptions of contemporary society and conditions [888] .
743 There are references in the joint judgment in the Engineers' Case to the desirability, in the interpretation of
the Constitution, of adherence to the ordinary, or the "golden", or the "universal" rules of construction of
statutes[889] . One such rule, to which lip service only seems to have been paid, and it may be observed, not only
in that case by the Commonwealth, but also in some subsequent cases, is the necessity to read an Act of
Parliament, and by analogy, a constitution [890] , as a whole, a matter of particular relevance to this case as I have
already said.
END QUOTE
QUOTE
[883] (1904) 1 CLR 91.
[884] (1904) 1 CLR 91 at 110.
[885] (1920) 28 CLR 129 at 145.
[886] (1997) 189 CLR 520.

[887] (1997) 189 CLR 520 at 566-567 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and
Kirby JJ. In the passage cited there is a reference to "text" as well as "structure" but the relevant language of the
text is not identified.
[888] (1997) 189 CLR 520 at 570-571, citing McHugh J in Stephens v West Australian Newspapers Ltd (1994)
182 CLR 211 at 264.
[889] (1920) 28 CLR 129 at 148-150.
[890] In the Engineers' Case (1920) 28 CLR 129 at 151 the joint judgment acknowledges that the ordinary
meaning of the terms employed in one place may be restricted by terms used elsewhere: "that is pure legal
construction", but the judges, having made that statement, do not appear to have applied it.
END QUOTE
You may notice that the Engineers Case for example was in 1920 at a time the High Court of
Australia had banned the usage of the Hansard records of the Constitution Convention Debates to
be used.
* Why?
**#** Well, I discovered that O’Connor seemed to have had a hand in this in 1904, and I concluded
this may have been as to avoid litigants (so their lawyers) to rely upon the Hansard records of the
Constitution convention debates as to prove their point.
* Isn’t that a serious issue?
**#** Indeed, I view it is. Lets have a look what Griffith stated in 1907, and then check back what
he stated being one of the Framers of the Constitution;
The joint judgment referred to;

The question was whether it also was a law with respect to corporations of the kind described in s 51(xx).
Griffith CJ, who was in the majority, said[12] :
"It is common ground that [the relevant sections of the Australian Industries Preservation Act], as framed,
extend to matters relating to domestic trade within a State, and the question is whether the power to make laws
with respect to 'foreign corporations, and trading or financial corporations formed within the limits of the
Commonwealth' extends to the governance and control of such corporations when lawfully engaged in domestic
trade within the State. If it does, no limit can be assigned to the exercise of the power. The Commonwealth
Parliament can make any laws it thinks fit with regard to the operation of the corporation, for example, may
prescribe what officers and servants it shall employ, what shall be the hours and conditions of labour, what
remuneration shall be paid to them, and may thus, in the case of such corporations, exercise complete control of
the domestic trade carried on by them."
However it omitted to use this clarification;

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

Sir SAMUEL GRIFFITH: It is a question of principle. Does the hon. member mean matters of principle
like that, because that might entirely depreciate the value of property in a state, or drive an industry out of
a state? From that point of view, my vote will be determined in the matter. I think, much as I desire to get
this power for the federal parliament, that we ought to hold fast by the principle that we are not going to
interfere with the rights of property in the states.
Again;
I do not think the hon. member, Mr. Kingston, has removed the difficulty that I felt as to its being an
interference with property and civil rights.

In MODERN POLITICS AND GOVERNMENT, Fourth Edition by Alan R. Ball, ISBN 0-333-
46413-3 (paperback) at page 33
“corporatism
Corporatist approaches are the most recent of the investigation of where power lies. Modern corporatism
emerged in the 1970s to analyse power distribution in the contemporary liberal democratic state. Corporatism
stresses the incorporation of certain groups in society into the decision making process. The state benefits from
the co-operation and expertise of groups such as industrialist and trade unions in the implementation of political
decisions, while the groups gain from a share in political power and the recognition of their monopoly as
representatives of certain societal sections.”
It ought to be clear therefore, that the modern way of conduct of corporations may be different then
it was at the time of federation. An added problem has been that the Commonwealth of Australia
engineered not just businesses but even State Government Department and the courts to have
ACN/ABN numbers for taxation purposes it has resulted that public utilities are not incorporated.
Therefore, when dealing with the Corporation power within Section (xx) one must be extremely
careful not to allow this power to be used to the maximum where the Commonwealth of Australia
somehow artificially manufactured a requirement of registration of corporation. Indeed, if this kind
of conduct were to be accepted then no subsection might be safe from being unconstitutionally
exploited as all the commonwealth of Australia is to do is to engineer a change in meaning of what
the 1898 text stood for to be altered by implication. The example of the word “gay” set out below is
a clear example.
it to the Commonwealth. For instance, our factory laws are left to the state.
Again;
. For instance, our factory laws are left to the state.
When dealing with the Framers of the Constitution and how they later as judicial officers made
statements one must not neglect to check back what their position was during the framing of the
Constitution and later. It is a well known factor that politicians say one thing and does another when
elected. Also, when dealing with Isaac you need to keep in mind that he was in favour of total
federal control of industrial relations while a Framer of the Constitution, and having been
unsuccessful may perhaps have misused his position to achieve after federation what he was unable
to obtain during the framing of the Constitution. As such, their statements when framing the
Constitution should be held more reliable then some statement made after the Commonwealth of
Australia was already in force.
Re Hansard 12-4-1897 Constitution Convention Debates (Official Record of the Debates of the

Mr. GLYNN Does that put a maximum on military expenditure?
Mr. PEACOCK: A maximum on all expenditure!
Mr. BARTON: It seems to me to put a maximum on all expenditure, because the whole of the expenditure
cannot exceed the total yearly expenditure in the performance of the services and powers given by the
Constitution, and any powers subsequently transferred from the States to the Commonwealth.
Mr. SYMON: Does that prevent any increase in case of war?
Mr. BARTON: Yes.

If the Commonwealth of Australia cannot even increase taxes in time of war how then could it
possibly have any greater powers to suspend “civil rights”?
QUOTE
648 As the joint judgment notes, the Act empowers the Minister to terminate a bargaining
period, if he or she is satisfied of certain matters, including, that industrial action is
threatening the health or welfare of the population, or part of it, or would cause significant
damage to the Australian economy, or an important part of it [723] . These points should be made about this
provision: true it is that the Minister's power is confined to the termination of a bargaining period, and that it is
the AIRC which is given the jurisdiction to order that "industrial action" stop, but direct executive involvement
of this kind in the affairs of non-governmental employers and employees would represent a significant
departure, not only from current industrial practice, but also industrial law generally[724] , except
perhaps in times of war, or otherwise in implementation of the defence power.
END QUOTE
Again;
except perhaps in times of war, or otherwise in implementation of the defence power.
There is no such powers within the defence powers for the Commonwealth of Australia to suspend
“civil rights” and the purported amendments to the ASIO legislation commonly known as
TERRORIST ACT are and remain unconstitutional, as it infringes upon the civil rights of the
people. If just judges did first extensively researched the Hansard records of the Constitution
Convention Debates before they formed an opinion and indeed before putting it in a judgment. The
fact that judges previously may have made such ill-conceived statements can be no excuse to repeat
the same.
Kirby J stated in his reason of judgment;
562 The defence power: In the joint reasons, reliance is placed upon this Court's wartime decision in Pidoto v
Victoria[636] . Reference is made to the interpretation of that case by Gleeson CJ in Pacific Coal[637] . In that
decision, his Honour stated that Pidoto denied an interpretation of s 51(xxxv) as importing a negative implication
on the use of other heads of federal power to enact laws with respect to conditions of employment – in other
words, laws generically answering to the description of laws with respect to industrial relations. The holding in
Pidoto was that laws enacted under the defence power in time of war, dealing with industrial matters in ways that
would not have been valid if enacted under s 51(xxxv), were nonetheless valid. The decision is one unique to the
exceptional circumstances affecting the ambit of the defence power during hostilities that threaten the life of the
nation.
563 In his reasons in Pidoto[638] , Williams J referred to an earlier elaboration of the law in Victorian Chamber of
Manufactures v The Commonwealth (Women's Employment Regulations) [639]. In that decision, his Honour had
said of the defence power in this connection:
"The paramount consideration is that the Commonwealth is undergoing the dangers of a world war, and
that when a nation is in peril, applying the maxim salus populi suprema lex, the courts must concede to
the Parliament and to the Executive which it controls a wide latitude to determine what legislation is
required to protect the safety of the realm ...
Similar circumstances to those which in times of war enable the Parliament of Canada to encroach upon
matters which in normal times are exclusively reserved to the States [sic] enlarge the operation of the
defence power of the Commonwealth Parliament to enable it to legislate so as to affect rights which in
normal times are within the domain reserved to the States".
How on earth can the Commonwealth of Australia somehow in war-time have different powers then
in peace time, one may ask? The Framers of the Constitution did not present such a scenario at all.
The purported “WAR AGAINST TERROR” it self should be a warning that such application of
the Constitution could have severe consequences. Simply, war or not, if the Government is not even
able to increase taxation to fund war then it hardly could do better in other area’s. Again, the High
Court of Australia should not decide upon LEGAL FICTION but at least give a reasonable
consideration to it all.
Mr. BARTON.-Our civil rights are not in the hands of any Government, but the rights of the Crown in
prosecuting criminals are.
Mr. SYMON.-What relation has this to customs duties? The industrial life of the state is considered by all
of us (subject to this exception, it may be) a thing of purely domestic concern. We do not want to interfere
with the domestic life, or with industrial life, except in the last resort. If you are going to introduce such a
thing as this it must be the Federal Ministry which will have to decide, subject to the Parliament, and you will
introduce the greatest complication and intensity of feeling that was ever seen.
Mr. WISE:
They forget that this commonwealth can only deal with those matters that are expressly remitted to its
jurisdiction; and excluded from its jurisdiction are all matters that affect civil rights, all matters that affect
property, all matters, in a word, affecting the two great objects which stir the passions and affect the interests of
mankind.
And
Mr. WISE:
I fail entirely and I shall be glad if some alarmist will enlarge my views on this matter-to perceive in this bill any
question on which there is any possibility of a conflict between the states and the people, except, in one respect,
and I will define that in the largest possible way. In legislation affecting commercial interests, or financial
interests, it is possible to imagine that the states will be brought into conflict as states with the concentrated
majority of the populations of the two large states over a question of trade. It is possible to imagine the same
thing arising over a question of commerce, or over a question of finance. Now, I ask if such a state of things
arises that the Committee will give attention to the nature of the interests which are threatened. If conflicts arise
over matters of commerce, trade, or finance, the interests that are threatened are not the interests of individual
traders, but the interest of the state as a whole conducting a general class of business, or carrying on a particular
sort of occupation. I will test what I mean. An effort is being made now in Victoria to grow beet for sugar; I hope
it maybe successful. A similar effort in its ea rlier stages is manifesting itself in this colony. Supposing that the
sugar interests in Victoria, and the sugar interests in New South Wales, became very powerful, and employed a
large number of hands, and influenced the legislature. It is then possible I do not think it is likely, and I am only
giving this as an illustration of the way in which, it appears to me, any conflict can arise it is possible that the
voters in Melbourne and Sydney, largely interested in beet sugar, should insist on their representatives putting a
heavy excise duty on cane sugar. This might have a prejudicial effect on the jam industry of Tasmania, and the
fruit industry of South Australia. It is easy to see that it is possible that the two large colonies could so
manipulate the powers to regulate trade and commerce that they would be able to crush out or inflict a very
serious blow on the commercial prosperity, not of an individual, not of the whole commonwealth but on a
particular group of individuals who are enabled to carry on an industry which is affected, because they live under
favourable climatic conditions. Is that a power which we can expect these colonies [start page 645] that are
affected readily to concede? I will reverse the position. There is one clause in the constitu tion which gives the
commonwealth power to regulate trade and commerce, and communication between the states for the purpose of
furthering commerce necessarily follows the federal parliament in order to give effect to that provision.
Everyone will admit that one very useful means of communication is a river, and that if the power of regulating
trade and commerce is to be unanimously conceded to the federation, logically the federation should be able to
take over the full control of all the river systems which may be made navigable, or which are navigable
throughout the commonwealth, especially where those rivers pass through one colony into another. Yet there is
not the most violent enthusiast in New South Wales, over what he considers this popular rule, who does not
insist, and properly insist, that New South Wales cannot and ought not to surrender the control of her river
system to the federal parliament. For what reason? Because our rivers are wanted for internal purposes of
irrigation, because our rivers serve the double purpose of developing our national resources-the resources of
New South Wales as a state-as well as the purpose of assisting communication and furnishing means of
navigation from one part of the commonwealth to the other. If those who insist that the small states are never to
be allowed to protect themselves against the possibility of unauthorised irresponsible power, of unduly exercised
power by the majority of the populations of the larger states, logically they will also insist that we, who represent
them here, should hand the control of our rivers absolutely over to the majority of the commonwealth. Why, to
parody their argument, should not the majority rule? If the majority want to use the rivers of New South Wales
for navigation, and to prevent us from using them for irrigation, why should not the voice of the great majority
prevail?
An HON. MEMBER:-
Mr. WISE: The answer is a simple one. I am not dealing with theories. I am dealing with facts. I accept the
facts. The answer is this: we intend to develop New South Wales as a separate state by utilising, our natural
resources. We do not dispute that logically you may demand these rivers; but we say that we require their waters
for other than commonwealth purposes, and we intend to keep them. It, therefore, seems to me that a great deal
of this cry for the rule of the majority comes from those who are very well disposed to the rule of the majority
when they form the majority, but who are quite determined that they shall not submit to that rule when there is a
possibility of their being left with the minority. It reminds me of the incident in the Philadelphia Convention
when the question arose as to the United States being allowed to confer titles of honor. One bluff and hale
democrat declared that for his part he would support a peerage, if he were quite sure of being one of the dukes;
but as he knew that he had not any chance of that, be was opposed to any peerage whatever. And so with us, or
some of us. They will support the rule of the majority so long as there is no fear of the majority controlling their
special interests. But the moment it is said we should hand our railways or rivers absolutely to the rule of the
majority, then we have the most clamorous cries on behalf of state rights raised by the very men who, when the
interests of other states are involved, are most generous in giving them away. What is, after all, the possibility of
a conflict? When the causes are gone, the possibility is reduced almost to a minimum. But supporting that in the
matters I have referred to a conflict arises. We have the means of getting [start page 646] rid of the conflict by
ordinary good sense, and if that fails by a dissolution, and, a third method is proposed. After all these methods
have come into play, will it not be a fraction of a fraction of cases in which any insoluble conflict arises between
the people of the states? I would not hesitate to say that, in the last resort, if the power of the concentrated state
populations were used I do not believe it ever will be to destroy the country interests, the interests of the interior,
the people of the sparsely populated districts have the right of self-preservation.
Mr. HIGGINS: My hon. friend confounds the interior with the smaller states!
Mr. WISE: I accept facts; and, indeed, that is the distinction: that two large states have the great city
populations. It is the small states in a rudimentary or earlier stage of development which have an agricultural,
pastoral, and mining population. It is the concentrated population which makes a large state. That which makes
New South Wales a large state is that it has Sydney; that which makes Victoria a large state is the possession of
Melbourne. In point of territory they are smaller than either Queensland or Western Australia.
Mr. HIGGINS: There is the same proportion of town population in Tasmania as in New South Wales!
Mr. WISE: It is not a question of population. The character of the people's pursuits is determined by the
climatic conditions very largely, and by the question whether or not they are engaged in the development of
internal productiveness or in the carrying on of external commerce. I want to meet the argument that all I can say
can be turned the other way. I deny that. The relative position of the small states towards the large ones in
questions that may give rise in conflict is not the same. The relative position the small states to the large states is
not even an equivalent position; for this simple reason: In the long run, and behind, everything, is the ultimate
sanction of all law that is, physical force. Behind the legislator there is the policeman, and if the case did arise
where the small states, by opposing their veto to a scheme which had passed by a large majority the
representative assembly, did disorganise the industries of the large states, if they did affect their existence as
states, if they did give rise to such a tremendous outburst of feeling that the national progress of Victoria or New
South Wales; felt itself imperilled, I ask who is going to enforce that veto? How will the small states ever be able
to give expression to their will? In the ultimate resort the large states have the power of effective resistance by
reason of their population. In the ultimate resort the small states have not that power. The small states could be
coerced by force-physical force if necessary and the large states could not. Therefore, we are in this position: we
are dealing with imaginary dangers and difficulties, which no one here admits or considers are likely to arise
difficulties which may conceivably arise; but if they arise as against the large states, having it in their power to
protect: themselves, they. arise in the case of the small states without that power; and all the small states, are now
asking is that they shall come under the constitution with the physical power of the commonwealth to protect
them in the last resort, which the large states have by reason of their numbers; They should be given that same
power by a provision in the constitution which enables them to oppose in the long run an ultimate veto,
not of the senate, but an ultimate veto of the votes of their own people against any proposal which is
intended to deprive those people of their liberties.
A fact that should not be overlooked is that the passing of the amendment Act of Industrial
Relations (WorkChoices) was as a result of an act of constitutional TERRORISM.
November 03, 2005

Question Time
Question Time in the House of Representatives descended into chaos today. Rowdy, uproar, fiery does not
describe what happened.
It was a shambles for half an or so, caused by a parliamentary brawl. The speaker's authority was continually
challenged by the ALP, and rightfully so. Another seven MP's were ejected from the Chamber by a biased
speaker:--that is 18 MP's in two days: 17 ALP and Liberal. Yet it takes two to tango--hurl the taunts, jeers,
sneers, and abuse. However, a blind eye is being turned to the front bench of the Howard Government by the
Speaker, even though the Ministers are not answering the questions asked of them.
So we go from point after point of order on relevance being made by the ALP. And they are right in 9 out of 10
situations.
The Speaker is not independent nor are his rulings fair. He is out of his depth and goes along, and supports, the
Howard government's white-anting democracy. The Speaker really ought to be defending Parliament from the
executive's power grab.
Posted by Gary Sauer-Thompson at November 3, 2005 08:34 PM
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Comments
While I am aware about the ejection of ALP members, I for one rather ignore this in this case in view that there
is a far more serious issue to confront.
As I made clear in my correspondence to the Speaker, he is there to ensure that all Members of the Parliament
have equal rights in representing their constituency and therefore cannot tolerate that Members have to vote on a
bill without each Member having its own copy. The speaker owns a duty foremost to the office of the Speaker
well above his political associations.
It is his task to ensure that Members have sufficient time to consider bills before being requested to vote on a
Bill.
In my view, the fact that most members of the opposition were not provided with a copy of the Industrial
Relations Bill should have been totally unacceptable to the speaker and he should not have allowed the
presentation of the Bill unless first every Member was provided with a copy of the Bill.
It does not matter of government political parties have the majority in the house, it is an issue that the Speaker is
responsible for proper conduct of what is going on in the House. Perhaps, had the Speaker, so to say, some

credibility, then a lot of problems could have been avoided in the first place regarding the non availability of
copies of the Industrial Relations Bill.
Posted by: G. H. Schorel-Hlavka at November 5, 2005 03:47 PM
GH,
I could not agree more with your argument. See this for the role of the Speaker.
Maybe the ALP will become serious about defending the power of Parliament as an institution, rather than just
itching to get their hands on the machinery of executive dominance.
They do need to develop some reform proposals to improve the functioning of democracy as well as
concentrating on clever theatrical parliamentary tactics.
Posted by: Gary Sauer-Thompson at November 5, 2005 04:30 PM
Please do read Chapter 32B What is CONSTITUTIONALLY the meaning of TERRORISM

before continuing reading further, as to get a better perception
We have found that despite what the Framers of the Constitution stated the Senate is being
terrorised by the Government of the Day to deny it appropriate time to consider the Amendment
Act, and what was shown already below the House of Representatives also had the same problem
where members were not even provided a copy of the relevant Amendment Act.
Mr. REID.-
Under ordinary circumstances nothing more is heard of the Bill that session, and there is a prorogation.
Then the Ministry and the House of Representatives have time for further reflection, and they bring in the Bill
next session, no doubt in the shape nearest to that which will commend it to the Senate. That Bill goes up to the
Senate, who then either accep t it or again amend it. Fresh efforts are made to come to an agreement by various
means, including, perhaps, a conference, and still it is found that it is impossible to agree. Then there is a
dissolution on the Bill, and the whole of the electors are appealed to as to whether the Senate was right in
refusing to pass the Bill in the shape in which it was sent to them the second time. There is a verdict by the
electors. What is the issue? The issue clearly is: Who was right?
And
Mr. ISAACS.-
Obviously, therefore, it is quite conceivable that if questions arose in which the interests, real or
supposed, of the more and the less populous colonies diverge, the two Houses would come into direct
conflict. Not less plainly it would be of great consequence to the Australian Commonwealth that such
dead-locks should be determined as speedily as may be, and also in a sense which would commend itself,
as far as may be, to the general approval of the great body of the colonists.
And
Mr. ISAACS.-The work was issued in 1896, and therefore embodies, I should may, the latest phase of thought
on the subject. I think that this passage answers nearly every objection that has been raised, or, as I conceive, can
be raised to the fairness of the referendum:-
If the electorate is to judge policies, it is surely less likely to err if it judges them on a clear and distinct
issue. In such a case it is most likely to act independently, and not at the dictation of wire-pullers. It is to
be remembered, too, that the referendum is not intended as a substitute for representative government.
All the advantages of parliamentary debate would still remain. Policies would not be thrown before the
electorate in a crude undigested undeveloped state. All measures would still pass through Parliament, and
the great majority would be finally decided by Parliament. It would only be in a few cases, after a measure
had been thoroughly discussed in all its bearings, after the two Houses had given their judgment, that the
nation would be called to adjudicate. The referendum would be an appeal from a party majority,
probably made up of discordant groups, to the genuine opinion of the country. It would be an appeal on a
question which had been thoroughly examined, and on which the nation had every means of arriving at a
conclusion. It would be a clear and decisive verdict on a matter on which the two branches of the
Legislature had differed.

Let me come to another writer in 1897. Professor Sidgwick, in the second issue of his work, at page 559,
having already spoken about the inadvisability in his opinion of direct legislation in ordinary cases, with which I
need hardly say I most thoroughly agree, says-
There are, however, special cases in which the direct intervention of the people in legislation appears to
me on the whole advantageous. The first case arises when in a Legislature constructed on the two-
Chamber system, it is important to avoid a dead-lock resulting in a disagreement between the two Houses,
that is, when the urgency of the need of some legislation on a particular point is generally recognised, but
the Chambers cannot agree on the form that the legislation is to take. Under these conditions, a reference
to the citizens at large has many advantages as a method of terminating a, disagreement. The dignity of
the other Chamber is saved if it has to yield to the people and not to the rival Chamber, while by the
reference of a particular measure to the judgment of the citizens a more clear expression of the people's
will is obtained than a general election of representatives can give. Again, the process is more educating,
since a single definite issue is [start page 2185] placed before the country. It also avoids the danger
involved in the representative system that an interested or a fanatical minority of citizens may, by
concentrating the whole voting power at a general election on a particular question, obtain a fictitious
majority of representatives pledged to support this demand.
Albeit it wrongly, the High Court of Australia decided that plural Bills could be considered where
there had been a double dissolution and the Houses were considering bills jointly. This document
would not allow for the full set out and neither is it required as my various books already canvassed
this issue extensively, but the Framers of the Constitution made clear that unless the government of
the Day did pursue a Double Dissolution where a Bill was twice blocked, it must be deemed that the
Bill no longer was left on foot if the Parliament continued proceedings regardless of the second
defeat. The Framers of the Constitution made clear that “a bill” was to be the trigger for a Double
Dissolution” and a Parliament may simply hold it undesirable to pursue a Bill that was twice
rejected, a Double Dissolution might not be wanted by them for political or other reasons. Hence, a
bill must be deemed abandoned if after the second rejection the Parliament continues its business
without the government of the Day seeking a Double dissolution. It must be recognised that the
High Court of Australia at the time did not consult the Hansard records of the Constitution
Convention Debates, albeit by its own caused fault for refusing to allow, albeit unconstitutionally,
the usage of the Hansard records of the Constitution Convention Debates, and as such there can be
no excuse. In fact, its decision to allow Senators to vote in the Senate is a sheer absurdity as the
Hansard records of the Constitution Convention Debates made clear that Territories could have
their representatives in the Senate but they would not be entitled to vote as they first had to obtain
Statehood. Again, these and other matters have been extensively canvassed in my previous
published books. As such, where the High Court of Australia handed down decisions in the past
which were if not totally absurd were ill conceived then it is an error to rely upon those judgments
which never had the benefit of being considered using the Hansard records of the Constitution
Convention Debates. It is therefore not relevant what Higgins, Isaacs, O”Connor, Barton, etc, etc,
stated in judgments since federation where they had circumvented the usage of the Hansard records
of the Constitution Convention Debates, this even so Barton himself as like many others pointed out
during the Debates that the High Court of Australia would be obligated to interpret the Constitution
using the Hansard records of the Constitution Convention Debates as to what their recorded
intentions were.
Mr. WALKER.-Yes. He says-
If the Sovereign is to retain any prerogative rights in respect to the Commonwealth, the choice of her
own representative would surely be included amongst them.
If it is desired by the Parliament at any time that the prerogative should not be exercised by the
Sovereign in a particular way, an address indicating their desires is more in accordance with usage and
constitutional theory than an enactment purporting to limit its exercise.
I shall not go further with this matter beyond stating that I have found reason to change my opinion, and
that I intend to support those who wish to retain the prerogative of Her Majesty.
Yet, somehow we find that John Howard as purported Prime Minister is signing documents, such as
the appointment of the Governor-General even so constitutionally he has no such prerogative
powers. Hence the appointment is unconstitutional. Indeed, as I have exposed in my various
published books there appear to be usage of fraudulent signatures of her majesty Queen Elizabeth II
and as such the validity of the appointment of the Governor-General and other also is and remains
to be in question. Likewise the terror caused on orders of John Howard to order the naval forces
illegally to tow unseaworthy boats into the ocean and leave people to the perils of the sea and
having as result people drowning, is a disgraceful conduct yet the High Court of Australia appears
to me to be silent totally and if anything has unconstitutionally supported this kind of excessive
unconstitutional conduct if not directly then indirectly by its decision regarding refugees, such as
but not limited to its decisions to authorise ADMINISTRATIVE DETENTION.
At the time of federation no Commonwealth prisons existed and the Framers of the Constitution
neither intended any to be created and in fact provided for Section 120 of the Constitution that
anyone accused (formally charged) or convicted was to be detained in a State prison under State
authority. The Framers of the Constitution made clear that there was a DUE PROCESS OF LAW,
which required to be followed before a State Court with a “judicial decision” and the person ought
to be heard. Somehow the High Court of Australia is able to elicit from the Constitution convention
Debates what might suit it in regard of corporations power but somehow it seems to me to have
been totally unable to do the same governing DUE PROCESS OF LAW.
I do not know if this term “DUE PROCESS OF LAW” is beyond the competence of some judges
to understand what it stands for but as they proved able to read Hansard records of the Constitution
Convention Debates they then likewise should have been able to read relevant parts as to DUE
PROCESS OF LAW. Indeed, my 19 March 2003 application for prohibition/mandamus within
Section 75(v) of the Constitution pursued the release of all unconstitutional held persons in the
concentration camp styled Commonwealth Detention Centres, but the High Court of Australia
simply refused my constitutional right to have this determined upon its MERITS. On that basis it is
not that the Court did not have a case before it that it could invoke jurisdiction, rather that it refused
time and again to allow my applications to be determine upon the MERITS of the Applications,
which also was dealing with CITIZENSHIP Yet, soon afterwards the High Court of Australia then
made known that layers should put a case before the Court to challenge CITIZENSHIP. This after it
was provided already with 8 copies of my 30 September 2003 published book;
ISBN 978-0-9580569-6-0 was ISBN 0-9580569-6-X
In my view, the High Court of Australia is operating to a great extend incompetently and lacks
appropriate consideration in certain cases. Hence, the Government of the Day can continue its
DICTATORSHIP unchecked as I experienced that once I challenged issues upon constitutional
grounds against the Governor-General as the first Defender, the judges all visited subsequently the
Governor-General and fraternized with him and to no surprise to me my case thereafter was blocked
from proceeding. It ought to be clear therefore, that while judges may quote past decisions and may
argue that none of the parties sought to challenge past decisions on foot (authorities) in my view
that is not relevant as the High Court of Australia itself having created this utter legal mess is
obligated to revisit the true constitutional interpretations of certain parts of the Constitution and not
blindly follow past decisions which were made in clear defiance of the Framers intention that the
judges should interpret the Constitution as per their intentions expressed and recorded in the
Hansard records of the Constitution Convention Debates.
No party appearing before the Court has any position to demand the High Court of Australia to act
according to constitutional requirements as the judges themselves are obligated to do so if they
desire to invoke jurisdiction. If they refuse to accept what is constitutionally required then they
cannot be deemed to have invoked legal jurisdiction and are more likely to have its proceedings
held to be like a KANGAROO COURT and/or a STAR CHAMBER COURT where the rule of
law (the constitution) is sparingly used or manipulated to extracts some decision most suitable, as
some may perceive, to their political masters.
In the book; “The Australian CONSTITUTION” ISBN 0 642 00587 7 At page 29;
“The States derive their constitutions and powers from British statutes, just as much as the Australian
government derives its structure and powers from the British statute embodying the Constitution: it follows that
the State sets of constitutional laws continue in force except to the lim ited extent that the federal set is
inconsistent with the State set.”
Therefore, it is not that the States were created out of the Commonwealth of Australia as that is a
LEGAL FICTION, the States were the renamed Colonies and underwent no alterations other then
of those implied by the constitution in the Commonwealth of Australia Constitution Act 1900 (UK)
and that they no longer for this could remain to have sovereign Parliaments empowered to make any
legislation it pleased.
At page 32;
“This picture is to some extent misleading and to some extent incomplete. It is misleading because although the
Ministers do meet to decide general executive policy, they do not meet as members of the Federal Executive
Council. The meet as members of ‘Cabinet’, a body nowhere mentioned in the Constitution. The ‘Executive
Council’ is a purely formal body, consisting of the Governor-General and usually only two or three ministers,
and its purpose is to receive formal advice and to approve the signing of formal documents. It correspond to the
queen’s Privy council in Brittain. ‘Cabinet’, the real controlling executive, meets without the governor-General;
it has its own offices and secretariat, and its presiding officer is the prime minister, who,- like Cabinet – gets no
mention in the Constitution. The constitutional sketch is incomplete in many ways, of which we need mention
only two.”
If we then couple with this the requirements in Section 57 of the Constitution where there
Appropriation Bills to go through a certain regime as any other Bill if twice rejected, yet the
appropriation bills resulting from the Budget(which is not handed down until may prior to the new
financial year) then it must be obvious that the government of the Day is blackmailing basically the
parliament by having to vote for the appropriation bills regardless of or otherwise the country could
grind down to a stand still in regard of the federal public service running out of money by the start
of the new financial year.
When G. Whitlam was unconstitutionally kicked out by sir John Kerr, it was found that the reading
of the proclamation from the steps of parliament House somehow made it legal, this, even so the
Framers of the Constitution made clear that not unless a proclamation is published in the gazette can
it be acted upon. More over, the Framers of the Constitution made clear that the Governor-General
could only interfere with a Double Dissolution to deal with a deadlock of a Bill. There was no such
provision to allow a Governor-General to get rid of a Prime minister and then have someone else
taking over and so to break a deadlock and then to have the Senate voting and then call a Double
Dissolution. Why on earth have this elaborate system in Section 57 of the Constitution if the
Governor-General can manipulate his powers at will?
At Runnymede, in 1215, the Barons of England forced King John to sign the Magna Carta, one
of three primary documents establishing the fundamental rights of the English people to this
day, {The others being the revision of the Magna Carta in 1225, the Petition of Rights [1628]
and the Bill of Rights [1689]}. The primary objective and content of the Magna Carta was the
prohibition of the use of Summary jurisdiction [the Roman or Admiralty Law] as a means of
unauthorized taxation and seizure of property without due process of Law or just
compensation. The colonists were, on the whole, very well schooled in the Common Law and
were quite aware of the wrongs that King and Parliament were committing against them. This
eventually forced them to rebel. http://www.biblebelievers.org.au/cmlaw1.htm
What Sir John Kerr did was to vandalise the very constitutional protection invoked with the Bill of
Rights 1689, which was created subsequently to King James II having sacked the Attorney-General
and for this the parliament held it better to dispose of the King (without terminating his life) by
offering Prince William of Orange of The Netherlands to be crowned King of England (by marriage
to Princes Anne, daughter of King James II) if in return he signed the Bill of Rights.
Sir John Kerr did not exercise his ordinary powers to prorogue the parliament but rather covering
his own mistakes made a political decision to trample upon the then Prime Minister G Whitlam.
After all, not the Prime Minister or even the Treasurer are constitutionally in charge of finances but
as the Hansard records of the Constitution Convention Debates makes clear the Governor-General
is the Administrator the “Executive officer” as they stated. Hence, any governor-General must be in
control as that is the job for which he is appointed for to represent the monarch, and as the
administrator must make sure that the appropriation Bills are submitted to the parliament well
before the new financial years is due and considering the events prescribed in section 57 of the
Constitution to be followed and further a joint sitting if needed. It therefore ought to be clear that
we have a DICTATORSHIP that purports to be a DEMOCRACY. And, we have a toothless tiger,
so to say, of a GUARDIAN OF THE CONSTITUTION, the High Court of Australia, that cannot
even manage to have its own affairs in order and thereby neither then can ensure that the
Commonwealth of Australia is managed in a constitutional manner. Again, it cannot excuse itself
that it has no judicial power to interfere as my application within Subsection 75(v) was in fact
giving it the jurisdiction it needed to deal with numerous unconstitutional matters. Yet, despite
these unconstitutional conducts by the Government of the Day (and that is in question also if it is a
legitimate Government) the High Court of Australia seems to be totally ignorant to what should be
done. What constitutional position did the Commonwealth of Australia have where there was no
duly elected government in the first place? Who did the federal government lawyers then represent.
The same could be stated about the State Government lawyers as they all lacked “Australian
CITIZENSHIP”. It appears to me the only people having a valid standing where the union legal
representatives as they were there to represent the workers democratic rights, their civil rights, their
rights to having the liberty to contract their labour, etc.
As is set out in this document, industrial relations is about the right of workers. Their “civil rights”
to enter in a contract they desire. Sure, if there is a dispute beyond the border of one State then the
Federal Government was given constitutional powers to legislate as to how a dispute was to be
resolved, but it is another matter to hold that somehow before any dispute existed, let alone was to
spread beyond the border of one State, somehow the Commonwealth of Australia could dictate
terms. After all, why should the Commonwealth of Australia dictate terms of employment
conditions on a State workplace when industrial strife may never eventuate. Some trades may never
have any industrial strife yet somehow the Commonwealth of Australia deems it justified to
nevertheless dictate its conditions, despite being prevented to legislate in regard of religion.
Any legislation by the Commonwealth of Australia as to dictate “public holidays” itself is
unconstitutional as it interferes with the religious or non-religious rights of people. After all,
different religions have different religious practices and different holy days. Then how could the
Commonwealth of Australia dictate that certain “public holidays” are to be accepted in Australian
Workers Agreements (AWA) as this itself is to force a religious practice of Christians upon non-
Christians of whatever religion or non-religion they might be.
As the Framers of the Constitution made clear;

Again;
Therefore, whatever the High Court of Australia judges may seek to fabricate out of the
corporations powers the clear message from the Framers of the Constitution is that;
“For instance, our factory laws are left to the state.”.
It cannot therefore be argued that despite this somehow the corporations legislative powers in
subsection 51(xx) could nevertheless circumvent this denial of power. As set out elsewhere in this
document, to use this absurd kind of reasoning then all there was needed was to have a simple
Constitution that provided that anything relating to money is within the legislative powers of the
Commonwealth of Australia (see subsection 51(xii) and it would have saved all the delegates
having to fight about every word used in the Constitution.
The usage of “factory laws” indicates that the ordinary worker would be under State legislative
power, not just in factories but also employees in ordinary stores, such as shop floor staff, cashiers,
etc.
Mr. BARTON.-They do not require to get authority from home, for this reason: That the local
Constitutions empower the colonies separately to make laws for the peace, order, and good government of
the community, and that is without restriction, except such small restrictions as are imposed by the
Constitutions themselves, and, of course, the necessary restriction that they can only legislate for their
own territory. The position with regard to this Constitution is that it has no legislative power, except that which
is actually given to it in express terms or which is necessary or incidental to a power given. The result is that you
might pass a clause giving judicial power to a court, but you cannot by the passage of that provision make the
conferring of a right of action upon a subject something necessary or incidental to the exercise of that power,
because jurisdiction simply means power to determine cases where a right of action exists. It certainly does
not mean giving the right of action simply where jurisdiction is given. That is the starting point of difference in
the argument between honorable members who have spoken and myself. Where there is a jurisdiction given,
that is simply the right to try cases where there is shown a right of action.
The statement; “They do not require to get authority from home” refers to the British
Parliament.
I accept that if workers end up in a dispute and it goes beyond borders then the Commonwealth of
Australia may invoke its powers to seek to deal with such a dispute. However, unless there is such
kind of dispute there is no legislative power. As such, the fact that there might be an industrial
dispute in one kind of business does not mean that then the Commonwealth of Australia can
legislate for other kind of businesses that have no part in the dispute, as they may have in one State
certain grievances and in another State different grievances and as such even then there is no
industrial dispute beyond the borders of one State, as it must be one kind of dispute beyond the
borders of one state. The WorkChoices legislation (as it is known) clearly is not addressing any
industrial relations incident. It directs itself to anything, regardless that the employer may not
operate intrastate but is merely locally based. As set out below also, despite the powers of
subsection 51(i) it is and remains limited to what is affecting trade and commerce and it cannot be
used internally to override State legislation, as it was intended that State internal trade and
commerce remains to be outside the reach of the Commonwealth of Australia. Likewise so with
industrial relations. The High Court of Australia is constitutionally bound to protect the
constitutional set upon as provided for in the Constitution and must take notice of anyone who may
seek directly or indirectly undermine the constitutional fabric of separate powers and policies. Also,
as the Framers of the Constitution made clear it is not just that workers with one company are in
dispute in different States
It also must be kept in mind that the Framers of the Constitution specifically stated that the State
Courts could use NULLIFICATION where Commonwealth law was deemed to be undesirable to
be enforced. To use Commonwealth Courts to enforce Commonwealth law would be contrary to the
constitutional division set out in the constitution and would deny the States to protect their citizens,
as the Framers of the Constitution intended it could do. While there can be industrial relations
differences, it also can be that there is a contractual issue at steak with or without industrial
differences, and then the Courts are the appropriate way to deal with matters.
If for example a worker has been underpaid then this is not an industrial issue but a contractual
issue that should be assigned to the courts of law, as like any other debt. After all, a person may no
longer remain employed and still maintain the same grievances to being owned monies by the
former employer, and this would hardly then be an industrial dispute but a contractual dispute
which falls within the ambit of the State Courts. If however contracts were to be based upon federal
law then it might deny any State Court to entertain a breach of contract because it involves a federal
matter and then the Federal Courts could be clogged by thousands of cases. It would therefore, for
this also, be very unwise to interfere with what is traditionally and constitutionally deemed to be a
State legislative power. The Court also ought to have taken notice of the comments made by various
Ministers, and indeed John Howard that he prefer a unification, as this underlines that his “motive”
may be to turn the Federation into a confederation.
Mr. ISAACS.-Well, but I am saying that it must not be taken as a standard. Those who framed the Bill of
1891 were themselves appointed by the Legislatures, and naturally they had a strong penchant for following the
same principle in the construction of the Senate. And they took, in that respect, the American Constitution as
their guide. Now, we know perfectly well that even in 1891 that would not have been tolerated in Victoria, and, I
believe, not in New South Wales either. When the Bill was brought up in the Parliament of Victoria, reference
to our debates will show that that would not have been tolerated even at that date.
And
Mr. ISAACS.-When we consider that, we must make some allowance for the political views of the people
who have to vote upon this Bill. I hope that that will be remembered at the last, but I fear that if the Constitution
is maintained in its present form the people to whom we have to take the measure will turn to us and will say-
"We have heard many protestations of your desire to trust the people. We have heard you say time after
time that the will of the people must govern."
Again;
We have heard many protestations of your desire to trust the people. We have heard you
say time after time that the will of the people must govern."
Hence, the judgment of His Honour CALLINAN J must be considered very much that where the
“people” have VETOED a question put to them in a REFERENDUM then this VETO must be
considered as a refusal to allow for such powers. As such, regardless if the joint judgment argues
that it was all along in the provisions of subsection 51(xx) then it must be deemed that if this
purported power was there all along, something I totally reject, then the VETO so often cast can but
only indicate that the people rejected such powers to be granted to the Commonwealth of Australia

and if therefore it was deemed that the power all along existed but the judges in the past, so to say,
were blind to this, then it must be taken that there is no such powers anymore existing.
It does however, in my view, not show much sense let alone legal sense, that the High Court of
Australia in its joint judgment argues about the existence of the power in subsection 51(xx) where it
totally neglected to consider relevant comments recorded in the Hansard regarding the Constitution
Convention Debates such as;
Again;
How on earth could factory laws remain under State legislative powers if the Commonwealth of
Australia overrules it with its so called WorkChoices legislation that prevents the state to apply its
factory laws as it was able to do previously?
The tone of the statement by the Delegates to the Constitution Convention Debates were either for
total absorption of industrial relations powers by the Commonwealth or against it and limiting it to
industrial disputes beyond the borders of any State. It cannot be then that the Framers of the
Constitution having fought this battle to save State legislative powers then would totally ignore
these rights where it comes to subsection 51(xx). In my view it is nothing short then an idiotic
assumption to take it that subsection 51(xx) is not limited to other provisions in the Constitution as
clearly this document indicates the Framers of the Constitution made clear that the Constitution had
to be in totality, and indeed subsections were subject to other subsections.
The High Court of Australia is not to play to be some magician, that can somehow elude the people
with tricks to make belief something that wasn’t, like it did with the Australia Act 1986 claiming
some progressive independence, where it lacked the legal facts to make an appropriate legal
determination about this. The High Court of Australia stepped outside its jurisdiction when it
“assumes” matters to be “facts” where it is no more but a LEGAL FICTION. Indeed, the Framers
of the Constitution did indicate that a local Court could easily be swayed by assumptions where as
the Privy Council being remote would make a decision upon the LEGAL FACTS of the case and
not swayed by personal bias one way or another.
QUOTE JUDGMENT CALLINAN J
PART III. RELEVANT CONSTITUTIONAL AND POLITICAL HISTORY [681]-[735]
Div 1: Early industrial relations tribunals [691]-[706]
Div 2: Failed attempts to gain power [707]-[735]
(a) The Constitution Alteration (Legislative Powers) Bill 1910 (Cth) for a
referendum [709]-[715]
(b) The Constitution Alteration (Corporations) Bill 1912 (Cth) for a
referendum and the Constitution Alteration (Industrial Matters Bill 1912
(Cth) for a referendum [716]-[723]
(c) The Constitution Alteration (Industry and Commerce) Bill 1926 (Cth) for
a referendum [724]-[727]

(d) The Constitution Alteration (Industrial Employment) Bill 1946 (Cth) for a
referendum [728]-[735]
END QUOTE JUDGMENT CALLINAN J

706 Enough appears to demonstrate that the founders never intended the Constitution to confer any intrastate
industrial power upon the Commonwealth despite that some of the delegates might have wished it otherwise.
The contrary sentiment was too strong. Subsequent legislators well understood that constitutionally too therefore
they could not do so. I am not prepared to ignore that sentiment or the expression of it which s 51(xxxv)
manifests. What also is apparent is that none of the lawyers, politicians and judges to whom I have referred even
remotely contemplated intervention by the Commonwealth into industrial affairs, other than by enactments under
s 51(xxxv). The whole tenor of the Convention Debates about industrial affairs was that they could be divided
into two categories only, intrastate and interstate. No one suggested that the debate, so far as corporations were
concerned, was an arid one, because the industrial affairs of these were already within the Commonwealth's
grasp under the corporations power.
If “corporation” powers were possible to be used to any extend then basically the Commonwealth
of Australia can use its corporation powers to re-organise its working. After all, by way of taxation
provisions it has pursued that every business shall have a ACN (Australian Company Number) or
ABN (Australian Business Number) number and this includes the various State Department and
even the Courts. It would enable the Commonwealth of Australia to circumvent the constitutional
separation between state legislative powers and commonwealth legislative powers as the
Commonwealth of Australia then could dictate State employees what days they can or cannot work.
If then there is an election to be held the Commonwealth of Australia could simply dictate that no
work is permitted on Saturday and this then will prevent any State election to be held.
The Hon. E. BARTON: I will concede that state rights was the expression that my right hon. friend
used. I used the expression "state interests" because I can see that what is at the root of this discussion is
not merely state rights, but also state interests.
We also should consider;

Sub-clause 13. Banking, the incorporation of banks, and the issue of paper money.
Colonel SMITH: I should like to ask the hon. member, Sir Samuel Griffith, if the word "banking" covers the
possibility of establishing a bank for the commonwealth?
Sir SAMUEL GRIFFITH: I should think not!
What should be understood is that Section 51 is providing legislative powers to regulate not to
create. It would be against the State interest if for example the Commonwealth of Australia were to
commence to set up trading companies in opposition of the States and then use its exclusion of land
taxes as a way to compete against a State based company.
Simply no kind of competition is permitted within the structure of the Constitution as the federation
was not created for this. It was created to provide for a body to represent all States (formally
Colonies) for the same issues provided for in the Constitution and in regard of those granted
legislative powers was “external affairs” provided, and no more.
Before reading further it is advised first to read or have read;

Chapter 007B “for the peace, order, and good government”
Mr. CARRUTHERS.-
Now, any man, especially an able member of the bar like-my honorable friend, ought to know that the
worst tribunal you could have would be a tribunal that would decide, not on the sworn testimony
submitted to the court, but on knowledge of the case, and in regard to the case and its surroundings, in the
minds of the Judges-evidence of a character which cannot be shaken by cross-examination-evidence which
is not known to the parties interested in the case at all. I venture to say that more mischief is done by cases
being decided by some twist or turn in the minds of Judges than by any judicial interpretation of the
evidence submitted to the court. Now, my great objection to establishing the final Court of Appeal in
Australasia is because there is existing in the minds of the Judges that unconscious bias.
And this is what the High Court of Australia is currently doing time and again.
We have deliberately decided previously that the Constitution should only be amended by direct appeal to
the electors, in which the vote shall be counted in two ways. I do not propose to alter that provision in the
slightest degree. We have provided that measures altering the Constitution shall only come into force after they
have been carried by absolute majorities of both Houses. I include the same provision in this clause. Before a
matter can be sent to the referendum, both Houses must by absolute majorities agree thereto.
And
I admit freely that as the Constitution is a deed of partnership, it is absolutely necessary to have the High
Court to interpret it, and to see that the various co-partners keep in all that they do within the four
comers of the deed to which they have agreed.
Mr. BARTON.-
Under a Constitution like this, the withholding of a power from the Commonwealth is a prohibition
against the exercise of such a power.
Mr. BARTON.-Yes, since then, as is pointed out in a little handbook which my honorable friend lent me. But
the question for us to consider is whether a court like the Federal High Court or the Privy Council would ever
come to such a conclusion. One would think it highly improbable. The real question that may arise under this
Constitution is whether the Commonwealth can make a law establishing or prohibiting the free exercise of any
religion. I take it that in the absence of a provision in the Constitution conferring that power upon the
Commonwealth it will be impossible for the Commonwealth to do so. For this reason I think we need
scarcely trouble ourselves to impose any restrictions. Under a Constitution like this, the withholding of a
power from the Commonwealth is a prohibition against the exercise of such a power. If the amendment of
the honorable member were adopted, the clause would read:-
A state shall not, nor shall the Commonwealth, make any law prohibiting the free exercise of any religion, or
imposing any religious test or observance.
Mr. ISAACS.-Would that prevent the Commonwealth from insisting upon Sunday being kept as a day
of rest?

Mr. BARTON.-The honorable and learned member (Mr. O'Connor) pointed out that it might prevent
the passing of a law for Sunday observance. The real question for-as to decide is whether the clause should or
should not remains. The only difficulty I have upon the point is this: I do not anticipate any trouble from
the want of a prohibition upon the states forbidding them from dealing with religious questions, but we
must always [start page 662] recollect that humanity has a habit of throwing back to its old practices.
Since a couple of hundred years ago we have been tolerably free from sumptuary laws. But there is in
many quarters a great disposition to take to these laws again, and we may before many years have passed
be overwhelmed with them.
Mr. DOBSON (Tasmania).-It is quite evident that the Convention have had a good dinner; but I do not think
that we can very well frame a Constitution on after-dinner speeches. I regret the numerous occasions on which I
have had to differ from the Right Hon. the Premier of New South Wales, but I have now, with the utmost
deference, to differ from him again, because I think he has used an extremely good argument why this clause
should be engrafted on the [start page 1119] Constitution. He tells you to leave it to brotherhood and generosity,
and yet he absolutely says-"Supposing the time should come when any state wants financial assistance, we
can get the Constitution amended." On the one hand, generosity, and on the other hand, a state has to wait for
a year, or possibly more-during which time it may stop payment-before it can get the Constitution amended. My
right honorable friend must see that if the Constitution is to be amended, it is not a question of generosity; it
will be a question of law, and, as the right honorable member has absolutely foretold the circumstances under
which the Constitution will have to be amended in this respect, I ask him to be consistent and to put this into the
Constitution now. It cannot do any harm.
If the States however simply reject this kind of funding and insist the surplus is returned to them,
then they can fund their own projects without loosing any legislative powers, besides that no State
can give away legislative powers without approval of the electors of that State. But that is another
issue.
Mr. WISE.-Yes. We have been striving all through to erect an independent Commonwealth with certain
clearly-defined subjects of legislation, and to provide very strictly that the rights of a state should not be
impinged upon by the undue exercise of the powers of the Federal Parliament. In order to prevent that, we
have constituted a Supreme Court to interpret the laws of the Parliament. But the honorable member now comes
forward and says that the Parliament is to make the laws, and that the Ministers of the day are to interpret them.
The Parliament may make what laws it pleases. It may make laws altogether outside the subject of the matters
referred to it by clause 52, but unless in each state there is a majority sufficiently strong to sway the Ministers in
power for the time being, those laws will not be declared to be ultra vires.
Mr. TRENWITH.-If there is a majority strong enough in any one state that will be sufficient.
occupy a few minutes in discussing it. Not that I believe that it will be carried, but I think it is an echo of a
widespread misapprehension which prevails outside as to the duties and functions of the Supreme Court. It very
often seems hard to a layman that that which has been enacted by Parliament should be declared to be illegal by
a Supreme Court when the statute is called into question during litigation between two citizens. It is hard, but
like everything else in politics, it is a choice of evils. The question is: Whether it would not be of much greater
disadvantage to the whole community to bring in the Supreme Court as an interpreter of the Constitution before
any precise case was taken before it, than it is to leave the individual to suffer the hardship of finding that the Act
upon which he relied was really invalid? I will not use my own language in explaining the position, but, to have
it put upon record, I should like to quote a passage which occurs on pages 154 and 155 of Dicey's Law of the
Constitution. After pointing out that the American Supreme Court exists to interpret the Constitution, and to see
that effect is given to its provisions, the writer goes on to say that-
The power, moreover, of the courts, which maintains the Articles of the Constitution as the law of the
land, and thereby keeps each authority within its proper sphere, is exerted with an ease and a regularity
which has astonished and perplexed continental critics. The explanation is that the Judges of the United
States control the action of the Constitution, but they perform merely judicial functions, since they never
decide anything but the cases before them. It is natural to say that the Supreme Court pronounces Acts of
Congress invalid, but in fact this is not so. The court never directly pronounces any opinion whatever
upon an Act of Congress.
[start page 1687]
What the court does do is simply to determine A. is or is not entitled to recover judgment against X.; but
in determining that case the court may decide that any Act of Congress is not to be taken into account,
since it is an Act beyond the constitutional powers of Congress.
If any one thinks this is a distinction without a difference he shows some ignorance of politics, and does not
understand how much the authority of a court is increased by confining its action to purely judicial business.
In a book prepared by you, sir, entitled A Manual of Reference for the use of Members of the National
Australasian Convention, to which frequent reference has been made, the matter is further dealt with. You say, at
page 126, in words that I would like to adopt as part of my argument:-
No doubt the power given is very great, but it is exercised in a manner and by a body which affords the
least possible chance of friction and quarrels between the central and the provincial governments. A veto
by the central authority has to be exercised at a time when the public attention of the provincial electors is
directed to the matter; at a time when, perhaps, party spirit runs high, when angry passions pervade both
factions, and when the subject-matter is invested with an importance which is not intrinsic, whereas a
declaration by a court that the statute is invalid is withdrawn from the sphere of politics. Each individual
and each state looks upon it that such declaration is given only in pursuance of the Constitution. Public
attention is probably directed to other matters, and the question has, in many cases, shrunk into its native
insignificance; and "it is to the interest of every man who wishes the Federal Constitution to be observed
that the judgments of the federal tribunals should be respected, and they take it that the courts are the
protectors of the federal compact, and that the federal compact is, in the long run, the guarantee of the
rights of the separate state."
If the proposal of the honorable member (Mr. Gordon) was carried into effect-though of that, I think, there is
not the slightest chance-it would follow that any person who was aggrieved by an unconstitutional enactment
would have to persuade the Attorney-General of the state or of the Commonwealth, as the case might be, to in
some way set the law in motion to ascertain the legality of the enactment, If the enactment was one which
affected a matter exciting strong party feeling, the result would be that the abstract question of its validity
would have to be argued before the court at a time when public feeling was excited, although it would be
of the utmost importance that the decision of the court should be entirely free from all suspicion of
political bias. Then, too, the enactment might be valid in parts and invalid in other parts, or it might be
impossible to interpret it in the abstract. It is impossible to foresee the bearing of a statute upon all
possible cases, and it is only when a case comes for determination before a court that the court is able to
say that in that particular case the statute does or does not afford protection to the citizen who has relied
upon it. The honorable member's proposal would remove at once the greatest of all safeguards to the impartiality
and usefulness of the Federal Court, by taking away from it its right to deal with matters which are brought, as
lawyers term it, to a distinct issue, and with precise and definite points, in regard to which the full bearing of
every word of the judgment could be appreciated? Instead of the court being able to determine the legality of
an enactment in its bearing upon any particular case, there would be considerations introduced which
were utterly foreign to the atmosphere of the tribunal, and that would seriously impair the public
confidence in a court which, with us, as in America, will, I believe, prove to be the ultimate protector of
the liberties of the people. Then, too, the amendment is in its form so complicated that its practical working will
be impossible. The honorable member said truly that the Attorney-General constantly intervenes now. But he
intervenes at the expense of the individual. The individual presents his case, and gives a guarantee for costs.
Under this proposal all that would happen would be that the individual who wanted to assert [start page 1688] his
right would have a barrier placed between him and the obtaining of justice. He would have to satisfy the
Attorney-General for the time being that he would be able to pay the costs of any action, and he would have to
bring sufficient political pressure to bear upon that officer to get him to move in the case, and finally he would
be left to contest the matter in his own interests and in his own name. The result would be that the rights and
liberties of every citizen in the community would be placed at the mercy of a chance parliamentary
majority.
Mr. GORDON.-That is the position now-the rights and liberties of every individual are at the mercy of a
parliamentary majority.
Mr. WISE.-The honorable member is now speaking of rights in respect to legislation. If the Parliament of
South Australia were to pass a law contravening the Merchant Shipping Act
Mr. GORDON.-I am not speaking of Imperial legislation.
Mr. WISE.-Suppose the Parliament of South Australia wanted to get rid of the Plimsoll Mark Act-even though
there were a majority it would be invalid, but according to the honorable member, when, we have here a case
exactly analogous, if the Constitution limits the power of the state, and enacts that certain powers shall belong
exclusively to the Commonwealth Parliament, and that if the state deals with them it invades the authority of the
Commonwealth Parliament, the individual is to have no rights unless he can persuade the Government of the day
to take up his case. It is in the interests of the poorer and uninfluential classes of the community, it is. in the
interests of the minority, that this amendment should be rejected, because it places an obstacle in the way
of obtaining that justice which ought to be free to every individual in the community.
Mr. HIGGINS (Victoria).-I should like to add my protest against this new clause. I am bound to say
something, because the honorable member (Mr. Gordon) says it is only the conservative and timid lawyers who
would venture to oppose this proposal.
Mr. GORDON.-I did not say that. I said as a rule the legal profession is, according to Herbert Spencer, a timid
and conservative class.
Mr. HIGGINS.-That may be so, and if the honorable member says he did not make that statement it is all
right. Anyhow, I thought he said that only conservative and timid lawyers would oppose this clause. There is no
doubt the intention of the honorable member is excellent. He wants to diminish litigation. If he can show that this
will diminish litigation to any material extent, and, at the same time, will not involve us in a great many dangers
to our liberties, I will go with him, but he has not shown anything of the sort. As Mr. Wise has shown, it will
throw an unpopular minority into the power of a chance Ministry of the day. We must see to-day that the
rights of individuals, even unpopular individuals, are preserved in the Constitution. I think Sir John Forrest
said that I personally had not got sufficient respect for the rights of individuals.
His Honour CALLINAN J;
QUOTE
775 It may equally perhaps be argued that despite their faults, federations are the least undemocratic of all forms
of government. The framers of the Constitution and the people who endorsed it by a popular vote could not have
been unaware of the problems, and the frustrations, to which the division of powers in a federation may give
rise [955] . Nor would they have been ignorant of the aversion that those who exercise power generally have to
any sharing of it. The legislation which is in question here, if valid, would subvert the Constitution and the
delicate distribution or balancing of powers which it contemplates. To say that the powers are distributed, or that
they are carefully balanced, is not to suggest that they ever were, or are now, in a state of static equilibrium. In
both specific and general areas, the powers of the Commonwealth obviously tend to be much larger than, or are
exclusive of, those of the States. There is nothing static about the defence power (s 51(vi)) in times of national
peril, or at all times, the taxation power (s 51(ii)), as to which governments and parliaments consistently exercise
much ingenuity, or, as these reasons elsewhere note, the intellectual property power (s 51(xviii)), the
immigration and emigration power (s 51xxvii)), or, in particular, the grants power (s 96) which legitimately all
allow to the Commonwealth much room to move.
776 The "generality doctrine" cannot be used to expand the powers of the Commonwealth in disregard of the
distribution of constitutional power for which the Constitution provides, and which careful reading of it as a
whole requires. The generality doctrine should only be invoked and applied to provisions which by their terms,
and in the light of other language in the Constitution, can be seen to require an expansive meaning.
END QUOTE
Again;
in particular, the grants power (s 96) which legitimately all allow to the Commonwealth much room to move
The High Court of Australia in the past seemed to me to argue that the Commonwealth of Australia
could in fact provide funding within section 96 even if otherwise unconstitutional, which I view is
utter and sheer nonsense, and lacks any competent explanation as the Framers of the constitution,
albeit rejecting at the time what is now s96 made clear that such provision would not allow the
Commonwealth of Australia, if accepted to make demands contrary to constitutional provisions.
Again;
occupy a few minutes in discussing it.
There are many other likewise statements on record that the Commonwealth of Australia could only
act within the provisions of the Constitution.
As I have set out in previous published books in the INSPECTOR-RIKATI® book series that
section 51 is a power granted to legislate and not to create. Hence, section 69 provides for the
transfer of Department from States (as the Colonies became) to the Commonwealth of Australia.
Section 69 does not allow for the selling of those entities and it is therefore and remains
unconstitutional to have Telstra sold off. Indeed my published books already extensively canvassed
those issue and the fact that the framers of the Constitution opposed to follow the USA way of
having telecommunications in hands of private operators and also that they went as far as to make
clear that the Minister was responsible even to the management of vehicles, etc.
Mr. BARTON: I am not complaining of anything that South Australia has done in this way. But if a person
sending a long distance message expects to get an answer, then with respect either to the message or to the
answer, he may be in a very queer position unless the whole responsibility rests with the Commonwealth of
keeping the whole system as clear as possible. If the colony is to retain its own particular postal and telegraphic
service, and the Commonwealth to be in charge of external questions with regard to posts, telegraphs, and so on,
then we may have this peculiar condition of things: that there may be cause of complaint with respect to the
external services under the charge of the Commonwealth, or with respect to the internal services which are sub-
divided among six States, so that there may be a responsibility divided among as many as three different
divisions. It would be preferable to make the Commonwealth responsible for the whole service, for by that
means you would much more clearly conserve the interests of every member of the Commonwealth.
Mr. CARRUTHERS: The hon. member has pointed out a very good argument with regard to the telegraphic
communication, but it fails entirely so far as his attitude to this Bill is concerned when applied to postal
communication. He is quite prepared to let the postal communication be carried on by divided responsibility. We
have not got the telegraph wires to carry the mails, but we have railways under State control to carry them; so
that if he sees no objection to that portion of the State business which carries postal matter being under divided
control, he can surely have very little objection to the telegraph wires being under State control. I should have
been in favor of getting this sub-section into the Bill if the Convention had been agreeable to take control of
what I consider to be analogous to our postal and telegraphic communication -I mean our railway
communication. It is just as important that the Federal Government shall have the care and management
of the vehicles which carry human beings and their goods as that it should have the care and [start page

769] management of the vehicles or ways which carry letters and telegrams. But I see very little chance of
carrying a proposal of that kind, and therefore my vote is to be given with a view to preserving the consistency
of this Bill having regard to other matters. I do think that there is a great danger in providing for the Federal
Constitution to take over too many matters at the onset. I fear that there is a great danger that we shall over-
weight Federation at the onset, and we shall have people voting against the Constitution because as
regards the particular matters they deem important we are giving up too much of the right to govern
themselves. I do say this: why should the Federal Government interfere in local postal matters? What interest
would the national Government have in the carrying of letters from Adelaide to Glenelg, or from Adelaide to
Hindmarsh, or from one street in Adelaide to another street in Adelaide? The se are matters of purely local
concern, and you cannot dignify them to a position of national importance. Moreover, I fear that by overloading
Federation with these minor and local concerns, you bring in that which has tended so much to degrade public
life in America, log-rolling and corruption. If you give over the telegraph and postal business you thereby
hand to the custody of the Federal Government all the local appointments -the appointing of the
postmasters, clerks, and other officers, who do not do national, but the purest local business; and you at
once raise up a large army of civil servants, the influence of which we want to dissociate from our national
life. If possible, we should elevate the position of our Federal Legislature above subjects of purely local concern,
and what need is there to thrust these matters into a great national undertaking? The hon. member's proposal
allows us to go just as far as we ought to go in this business. When this becomes a matter of national concern, let
the nationa l Government do the work, but the Federation should not do things which are best done locally. What
cannot be done best locally should be handed over to this common executive. It is proposed to have an Inter-
State Commission, which will deal with those matters where our railways, or our public arteries-our roads, or
rivers-come into conflict. The idea is that the rival interests of one State against another should be adjusted and
controlled by such a Commission. It is very easy to let this matter of posts and telegraphs outside the boundaries
be regulated by this Commission. They need not take active management, but they could provide regulations
which would have the force and effect of federal laws governing the various bodies. I do hope that in this matter
there will be a division taken, so that those who are inclined to overweight the Federation with minor matters
may vote for it, and those who are inclined to leave to the Federation clearly-defined national interests, may give
their votes in that direction. I hope a division will be taken which will test this and many other matters. I have
given notice of similar amendments, but I shall not persevere with them if Mr. Holder's amendment is lost.
Mr. DEAKIN: As I understand the remarks of my hon. friend Mr. Carruthers, he admits the wisdom of
transferring the telegraph service to the Federal Government, but contests the wisdom of handing over
the post offices. Do I understand the hon. member's position correctly?
Mr. CARRUTHERS: No. My hon. friend Mr. Barton pointed out that with regard to telegraphs it was,
not wise to let these lines be under the control of the various States, and I answered him by pointing out
that with regard to postal business he was prepared to let the railways which carried the mails be under
the control of the various States.
And
Mr. DEAKIN: Within or without State boundaries. How can it be said that South Australia is more competent
to administer the postal affairs of its Northern Territory than they would be administered from a central capital?
Or how can it be said that the European mails for the extreme west country of New South Wales could not be
better dealt with by the use of railways and means of transport through South Australia? Looking at the postal
and telegraphic business of the continent of Australia from a purely business aspect, from the practical
side of affairs, it appears to me that we are more likely to have satisfactory and complete communication
if it be regarded as one whole and worked from the most convenient centres, without regard to State
limitations. I say in answer to Mr. Holder that his illustration in regard to Western Australia proves
nothing if we may rely upon American experience. If there has been one great federal success it has been
the American post office, and if there is one regret in their politics it is that the American telegraphic
service is not also in the hands of the Government. The telegraphic service is in private hands, and the
regret is widespread. I can say, from a short experience of some of the least settled and most distant territories
of the West of the United States, that the postal communication there is much more complete than I have been
accustomed to find in outlying districts of these colonies under their present State management. The National
Government at Washington, 3,000 miles away, separated by a whole continent, has proved itself more liberal in
its treatment of the people of the Far West than have the Governments of Australia proved themselves in regard
to our back block settlements. In America the post office has been a great administrative, financial, and popular
success; and any man who would propose to-day to hand that service over to other than to State administration
would find that his proposition was short-lived. We may have greater difficulties to surmount than they have, but
there is no reason why the Commonwealth of Australia should not also achieve a conspicuous success in this
direction. The arguments used by my hon. friend Mr. Barton with regard to the difficulties arising from a divided
control of the telegraph wires appear to be conclusive. It would be almost impossible to make arrangements as
perfect and as economical for either postal or telegraphic services [start page 771] within Australia if you retain
State boundaries, and it will certainly be more difficult to make arrangements for the extra-Australian services if
you are called upon to consider State claims and demands, instead of only considering the real practical wants of
the localities immediately concerned. It appears to me a desirable thing as a matter of practical business to
transfer both of the services to which I have alluded to the Federal Government. We shall not place too great a
burden on the federal authority, and the whole population will be better served than they now are or than
remote districts can be by State authority. Placing the means of communication in the hands of the
Federal Government will probably permit of that universal reduction of postage and cable rates which is
one of the first demands of the commercial interest throughout Australia. The experience of our own
colony is that the present cable rates are almost prohibitive. but by a satisfactory combination of the cable
and postal services, with unity of administration, we shall be able to secure an immediate reduction in
those charges, as well as in postal rates, and give the people of Australia better services than those they
now possess.
Sir PHILIP FYSH: Every postal conference that has been held for years past has tendered a report
suggesting that the postal and telegraphic services should be federated. Year by year conferences are
necessary in order to keep ourselves in touch with what is going on and to keep pace with development. The
clause of the 1891 Bil l, transferring the control of post and telegraph offices, was largely for the reason
that the losses amounting to £200,000 per annum, incurred by some States were for the benefit of the
whole, and therefore should be of federal concern. That state of accounts has since altered, and South
Australia, in 1891 the chief loser, and Tasmania, also an important loser, have both since secured profit in
these departments, but much services as posts and telegraphs have by means of the postal conferences of
postmasters annually, and by their reports, sought to establish uniformity, and tended strongly to support
this federal purpose. The cost of cable subsidies has already been divided intercolonially, and the
completion of federal services will tend to support the "United Australia" purpose of the people. Nothing
has a greater tendency to perfect your union than one postage stamp for Australasia. Uniform postal rate is
also desirable; whereas in Tasmania, in a given radius from the General Post Office, the rate is one penny, in
South Australia and Victoria twopence is uniform, whether across the street or to the end of their territorial limit.
And
Mr. WISE: I have the concurrence of the gentleman in charge of the Bill for doing this. I propose to omit all
the words after the word "Postal," and to make the clause read as follows:
Postal, telegraph, telephone, and other like services within and beyond the Commonwealth.
If I move that it will be open to the hon. gentleman moving the present amendment to strike out the words
"within and." It is necessary as a matter of drafting, to carry out this to meet the views of Mr. Holder, who
moved the present amendment. Unless there are express words implying that this is outside the Commonwealth
they will not know its limits. If we want the Commonwealth to have power to deal with cables, there must be
express power to enable them to go beyond the Commonwealth.
Mr. HIGGINS: What are you intending to cover by the words "other like services?" Do you mean the
railways?
Mr. WISE: There might be a long distance telephone or phonograph. Mr. Peacock's laugh might then be heard
in London. (Laughter.)
Sir GEORGE TURNER: We have his laugh here. Do not put him further on.
Mr. WISE: If Mr. Holder moves to omit the words "within and" it will come to the same thing. I am sure
these words are necessary to enable Mr. Holder to carry out his object.
Mr. SYMON: It is a little complicating the present issue to introduce telephones. Some of us would be rather
caught by the insertion of these words in deciding upon the amendment by Mr. Holder. The introduction of
telephones raises a distinct issue. It would be better to put them separately.
Dr. COCKBURN: On behalf of my hon. colleague Mr. Holder, I will ask leave to withdraw this amendment,
so long as it is not intended in any way to obstruct it.
Amendment temporarily withdrawn.
Mr. WISE: Then I move:
To insert after "telegraphic," "telephonic and other like services."

I will not discuss this. Telephones are worked with telegraphs in every colony, and it would be a great
inconvenience to separate them.
Mr. SYMON: I should like to hear the views of Dr. Cockburn on this question, as some of us are not familiar
enough with the subject to say whether there can be a detachment of the services.
Mr. DEAKIN: They must go together. Mr. WISE: They use the same wires. Dr. COCKBURN: I do not think
it is possible to separate them.
Amendment agreed to.
Mr. WISE: I now move to add to the sub-section:
Within and beyond the Commonwealth.
Sir GEORGE TURNER: What is the object? Would it not apply to many other powers that we are to give.
Mr. SYMON: I think these words are scarcely required. There could be nothing more comprehensive than the
words we have just adopted.
The CHAIRMAN: I will put Mr. Holder's amendment first.
Mr. REID: This attempt to separate the post and telegraph services will, I think, be disastrous. It is
impossible to work these two services by, two different departments. How is it possible to put on the
Commonwealth the necessity of having a department to deal with one part only of the business.
[start page 774]
Instead of simplifying the post and telegraph services of the colonies it will only complicate them. One of
the strongest reasons for including the post and telegraph services within the Commonwealth is that,
instead of having seven Ministerial Post and Telegraph Departments and seven staffs for the Australian
colonies, the whole business can be managed under one federal head. If there is an argument in favor of
federalising any service, it applies more strongly to this than to any other I can think of. There are certain
side complications which will entirely disappear under federal administration. When one speaks of the
colony of New South Wales having a loss on the postal service, and another colony having a gain, that simply
arises from separate administrations and separate laws; laws under which, in New South Wales, we allow
newspapers to go free, and laws under which in other colonies they do not; laws under which, in New South
Wales, we allow one penny stamp over a fifteen - mile radius in all populous localities throughout the colony,
and laws in other colonies under which they charge twopence to send a letter from one side of the street to
another. Under a federal administration the charges will be regulated on a uniform basis, and all these
inequalities will disappear. Why are we putting in various clauses to prevent unequal intercourse between the
colonies in matters of trade if we do not put in these clauses which will prevent similar evils in connection with
the posts and telegraphs of Australia? You could carry on most offensive State wars with these post and
telegraph rates. It is essentially a matter of common concern which could be more economically administered by
the Commonwealth. Although I always attach the greatest importance to the views of Mr. Carruthers, and we are
generally found acting together, I must say on this occasion I feel it would be impossible to carry out the ocean
transit of mails with one department, and local affairs with another. From my point of view there should be
only one Post and Telegraph Department for Australia, only one executive head for Australia, and I
believe that under that system the interests of the people of Australia will be better and more economically
served.
Recognition must be given to His Honour CALLINAN J that His Honour also referred to this
subsection 51(v) and seemed to me to express the intentions of the Framers of the Constitution in
that they did have a foresight in the future development of telephony, etc.
769 I elsewhere explain why there are other strong reasons for the construction of s 51(xviii) of the Constitution which I
think correct. At this point it is sufficient to say that the submission of the Australian Workers' Union is also partly
correct:
"[I]t is one thing to say that terms such as 'patents of inventions and designs', 'postal, telegraphic,
telephonic, and other like services', 'corporations', or 'marriage' should be construed with all the generality
that their words admit, lest the Constitution become some sort of nineteenth century fossilized relic. It is
quite another, however, to say that the most general connection between a head of power and a law will

be deemed sufficient."
The submission is correct in singling out some powers for an obviously more expansive operation than others.
Patents and inventions are powers in point. So too is defence. In its terms, that is in text, placitum (v) dealing with
"postal, telegraphic, telephonic, and other like services" is a very far-reaching power without any need for judicial
addition to it. I am however unable to accept that the Constitution is in danger of becoming a fossilized relic of the
nineteenth century. Intimations of that danger have accompanied and been falsified by every one of the many failed
referenda conducted since federation, as well as, among other things, cooperation between the Commonwealth and
the States when power is lacking but action truly necessary [945] .
END QUOTE CALLINAN J
The Framers of the Constitution time and again pointed out the desired not to have some inflexible
constitution as that of the USA but desired to create one that was alive and living and could be
amended by the people using Section 128 as to reflect their contemporary views. As such, it is not
up to the High Court of Australia to interpret the Constitution with its own contemporary views but
to interpret it within the confines of the Constitution that is as to the intentions of the Framers of the
Constitution. If then the language used in the Constitution would not allow for the legislative
powers the Commonwealth of Australia desired then it can always embark upon a section 128
referendum. The fact that so many referendums were lost if anything proves that the peoples power
to VETO any grab for further legislative power must be recognised. It is not then for this High
Court of Australia, as His Honour CALLINAN J so bravely sets out, to go against the tide of the
wishes of the People and by this supplant their constitutional powers/rights with that of what is
desired by the unelected judiciary. In particular where it is not uncommon that judges are political
appointments as to seek to influence the Courts future decisions the Court cannot afford to appear to
be bipartisan to the Federal government and totally disregard the application and recognition of the
very people about whom it is about and so their CIVIL RIGHTS to enter in a contract as they
desire and entitled to within the State jurisdiction. The powers provided to the Commonwealth of
Australia was not for the purpose to interfere in the daily lives of every person but to deal with
matters which could be federally justified. It is not an issue to the federation if a person makes a
work contract (a civil contract) with employer and say upon this worker having commenced to work
the business is sold and then the new owner incorporate the business and somehow the worker has
his “civil rights” and his “civil contract” interfered with and so his future employment entitlements
by some busybody federal government.
It is the very issue of retaining the States identities that a person can decide where to reside. Some
States have better weather conditions, but other states provide better facilities and/or better working
conditions. It would therefore be absurd if for example a worker having commenced employment in
a certain state under its State insurance provisions then find that without any changes made on his
part the employer can manipulate working conditions by using corporation provisions to negatively
influence the entitlements of the worker.
One may then ask if anyone who does outsourced work for a corporation then also might be subject
to the powers of the Commonwealth of Australia under the corporation laws.
Anyone turning on a tap might be forced to comply with corporation laws that the Commonwealth
of Australia might put in place as to how people using the water corporation facilities can use it and
under what conditions. After all, if the Commonwealth of Australia would be able to set wages,
terms and conditions then it could likewise do so in regard of anything else. Bus/tram/train
companies could be forced to operate under Commonwealth law, regardless that they might operate
only within a certain area of a large city.
Indeed, His Honour CALLINAN J very much appeared to be extremely concerned about the
unlimited powers that the Commonwealth of Australia could use via the corporation laws.
The Commonwealth could in fact erode the entire State system. It could legislate that the Road
Corporations of a State no longer issue license plates as only the Commonwealth would do so. It
could use its corporation powers to abolish any State taxes. It could use its corporation powers to
interfere totally (for so far it not already does) with education, health, etc.
There simply would be no limit to it.
While the Commonwealth of Australia has no constitutional powers over the Federal judiciary, I for
one could see my way through it to use the corporation powers to run State Courts down the
ground, so to say, as to manipulate the corporations powers to influence State Courts operations.
In fact, it even could use the corporations power to interfere with the structure and conduct of the
High Court of Australia, as while it might be created within Chapter III of the Constitution, once the
High Court of Australia accept that the corporation power is unlimited then it neither can avail itself
to being protected as the corporation powers, by its own judgment, is unlimited.
It should be clear that the corporation powers were granted as was already provided for in regard of
banking. If the corporation powers would allow the Commonwealth of Australia to interfere with
every facet of life either directly or indirectly related to a corporation then why should not the same
apply to banking one may ask. Then the Commonwealth of Australia could legislate to anyone who
is using a bank. So what the Constitution does not allow legislation as to State banks operating
within a State, the Commonwealth of Australia could simply use the provisions of “(xii) currency,
coinage, and legal tender”, after all rather then merely having a power house covering about 85% of
businesses, the commonwealth of Australia could dictate 100% of what every one does in the
Federation by using this power to legislate what a person can or can’t eat. What a person can or
cannot smoke, drink, wear, etc. It could be used to dictate how much money any person is entitled
to earn. After all, if you are going to give the liberty of power within Subsection 51(xx) then
Subsection 51(xii) would be far more powerful. It is not bound by corporations registering as it has
no bounds at all. Everything turns on money in the business world and so also in daily life for those
who are retired and as such it is the perfect way to control the general population to the extreme in a
tyrannical condition. This, is in my view the absolute absurdity that can be implemented as result of
the joint judgment handed down.
In this book, I will be entering in the constitutional validity of the Court itself, as this too becomes
an issue as to ascertain if the judgments are constitutionally valid in the first place or not worth the
paper it is written upon. Corporations require registration for “RECOGNITION” and not how they
operate with their workers. Any person is entitled to his/her “civil rights” to enter into a contract to
his/her desire and not being forced into some kind of contract that the Federal Government desires
to dictate. Indeed, lacking legislative powers as to religious the Commonwealth of Australia
(Parliament and/or Government) cannot dictate anything about religious public holidays one way or
another and neither about penalty rates applicable to religious holidays.
Again, a shame that none of the judges took any consideration as to the issue that employment of a
worker entered into was on the basis of a State contract within the “civil rights” of a person within
State laws where as “corporations” powers was dealing with registration of corporations legislative
powers provided to the Commonwealth of Australia and nothing to do with “civil rights” contracts.
Indeed, as the joint reasons pointed out;
QUOTE
Such little debate about the corporations power as there was at the 1891 Convention focused upon whether that
power should be extended, like the banking power, to the registration or incorporation of companies. Sir Samuel
Griffith's response [141] was:
"What is important ... is that there should be a uniform law for the recognition of corporations. Some
states might require an elaborate form, the payment of heavy fees, and certain guarantees as to the
stability of members, while another state might not think it worth its while to take so much trouble,
having regard to its different circumstances. I think the states may be trusted to stipulate how they will
incorporate companies, although we ought to have some general law in regard to their recognition."
END QUOTE
As this reveals, the concern then being addressed was very narrow.
Again;
is that there should be a uniform law for the recognition of corporations.
With my extensive research in the Constitution Convention Debates this was all along my
perception, that it was only dealing with registration (for the recognition of corporations) upon a
uniform basis as to avoid different State conditions but nothing to do with attempting to interfere
with the civil rights of a person to enter in a work contract with an employer. Also, the drafting
committee would often deal with matters decided in smaller committees and as such not subject to
major debates on record.
HANSARD 27-1-1898 Constitution Convention Debates (Official Record of the Debates of the National
Mr. SYMON: No doubt. There is another point I wish the hon. member to consider. You are not going to
interfere with the laws of the States dealing with contracts. If the Federal Parliament deals with disputes it will be
hampered by the varying laws relating to master and servant which may exist in the different colonies. If an
industrial dispute in several colonies were treated as one it could not be dealt with as an ordinary dispute, but the
laws of each separate State would have to be taken into consideration. Now that would be, I think-so it strikes my
mind at present-a difficulty hard to be overcome. At any rate, what I am dealing with is rather the general
proposition that is put in this amendment, not the language of it, but the general proposition, and if you are to
give the Federal Parliament power to deal, as my honorable friend puts it, with industrial disputes -I will leave
out the subsequent verbiage-I for one cannot see where the limit of its operation will come in. You give it a
weapon which might be used according to the dominant majority in the Federal Parliament for the moment in a
way we would not like. You are intensifying the possibilities of bitterness-that is to say, if they avail themselves
of this power-without seeing the benefit that is likely to arise. I desire to emphasise the [start page 790]
observation made by Mr. Deakin. It would be impossible to say at what time
the overflow into the adjoining State begins and ends. If the Federal Parliament is to decide-
And
This amendment does not hand over to the federal power the entire dealing with industrial disputes over
the whole of the Commonwealth, but only over so much of the Commonwealth as may be affected by those
disputes. It therefore imposes upon the various states the necessity for having courts of conciliation and
arbitration to deal with the matters affecting their states only. That seems to me to be an admission of the
principles principle which I think must be admitted in the present circumstances-that anything whatever in the
nature of government or administration which can be better dealt with by a state than by the Commonwealth shall
be left to the state. I claim Mr. Deakin's emphatic indorsement of that principle, and I claim his vote, because his
vote if he goes with me will affirm the principle. It surely must be better for the employees that their disputes
should be settled by courts which know all the circumstances, which understand the condition of things best, than
that they should be settled by possibly a distant tribunal which is ignorant of the environment and particular
conditions affecting any industry in any one of the states. We have heard to-day something about the fixing of
a rate of wage by the federal authority. That would be an absolute impossibility in the different states.
And
And
HANSARD 8-2 -1898 Constitution Convention Debates (Official Record of the Debates of the National
Mr. HIGGINS.-I did not say that it took place under this clause, and the honorable member is quite right in
saying that it took place under the next clause; but I am trying to point out that laws would be valid if they
had one motive, while they would be invalid if they had another motive.
It must be clear that the motive of the IR WorkChoices legislation had a motive that in itself makes
it invalid. The principle object is to rob the ordinary worker of their bargaining power to enter into a
Contract based on State provisions.
As such, it is not just to rob the States of their rightful legislative powers but more over is in
particular to rob the people of their CIVIL RIGHTS.
But that has been done before and so permitted ongoing by the very High Court of Australia that
was created as to be a GUARDIAN OF THE CONSTITUTION.
We can for example look at the issue of CITIZENSHIP.

HANSARD 2-3 -1898 Constitution Convention Debates (Official Record of the Debates of the National
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 the British 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.
This is not “citizenship” as exist in the USA or some other countries, as the Framers of the
Constitution made clear they did not desire to follow the example of the USA and rather created
their own system.
We have the Australia Citizenship Act 1948, but I ask on what constitutional basis is this
legislation enacted?
QUOTE JOINT JUDGMENT
54 Underlying all these arguments there was a theme, much discussed in the authorities on the corporations
power, that there is a need to confine its operation because of its potential effect upon the (concurrent) legislative
authority of the States. The Constitution distinguishes in s 107 and s 109 between legislative powers exclusively
vested in the Parliament of the Commonwealth and inconsistency be tween federal and State laws made in
exercise of concurrent powers. Section 107 does not vest exclusive powers in the State legislatures. It will be
necessary also to return to that topic [17] . It is immediately useful to bear in mind what Windeyer J said in
Victoria v The Commonwealth ("the Payroll Tax Case")[18] :
"The Colonies which in 1901 became States in the new Commonwealth were not before then sovereign bodies in
any strict legal sense; and certainly the Constitution did not make them so. They were self-governing colonies
which, when the Commonwealth came into existence as a new Dominion of the Crown, lost some of their former
powers and gained no new powers. They became components of a federation, the Commonwealth of Australia. It
became a nation. Its nationhood was in the course of time to be consolidated in war, by economic and
commercial integration, by the unifying influence of federal law, by the decline of dependence upon British
naval and military power and by a recognition and acceptance of external interests and obligations. With these
developments the position of the Commonwealth, the federal government, has waxed; and that of the States has
waned.
END QUOTE JOINT JUDGMENT
QUOTE JOINT JUDGMENT
[18] (1971) 122 CLR 353 at 395-396.
END QUOTE JOINT JUDGMENT
Well, lets see what the Framers of the Constitution stated that was applicable, and that the
Commonwealth of Australia is not a dominion is one of the issues they raised.
It also means that the Westminster Act 1931 (UK) is ULTRA VIRES for so far it purports to deal
with the Commonwealth of Australia as being a DOMINION in that it is seeking to use a backdoor
manner to give the Commonwealth of Australia some DOMINION status which the constitution did
not provide for. Indeed, neither did it provide for the Commonwealth of Australia to be able to
increase its own powers by a request to the British parliament sidelining by this the States and/or
Section 128 of the Constitution. As such for so far the Westminster Act 1931 referred to the
Commonwealth of Australia it is and remains ULTRA VIRES and likewise so any request or
purported request made by the Commonwealth of Australia, and so also the Australia Act 1986
(UK) and obviously also so the Australia Act (Cth). Likewise so the British National Act 1948 that
purported that Australians are foreigners, as it was beyond the powers of the British Parliament to
legislate as such as it was by this seeking to amend the Constitution by way of backdoor manner by
robbing Australians of their constitutional right to be “subjects of the British Crown.”. Now
consider this; In my 28 October 2002 correspondence, to Mr Justice Michael Kirby, I contested the
validity of the Australian Act, and on 17 June 2003 His Honour in the MIMA case then made clear
the Australian Act had no legal enforcement against the Constitution.
Shaw v MIMA B99/2002 (17 June 2003)
KIRBY J: I am afraid I have to tell you that is where you lost me because, as far as I am
concerned, I do not see how the Australia Act 1986, an act either of the United Kingdom
Parliament or of the Australian Parliament, has the slightest power to alter the
Australian Constitution, that power belonging to the people as electors.
http://www.austlii.edu.au/au/other/hca/transcripts/2002/B99/1.html
Mr. BARTON.-
Mr. MCMILLAN: I do not quite follow Mr. Isaacs in his logic. It seems to me it is a very serious matter to
attempt to interfere with the whole machinery of the constitutional Government,
. I take it that one of the first principles of the Constitution is that we present it to the several colonies, not
as a complete constitution, but as one which they can make complete; not as a constitution necessarily
adapted to their needs and desires, but one which they can themselves adapt to those needs and desires.
The Australia Act 1986 would alter a “constitutional Parliament” and a “constitutional government”
into a Parliament that now is above the Constitution and it could merely repeal Section 71 and
Section 128 together and there would then be no court to argue about if it is unconstitutional or not.
As the Framers of the Constitution made clear there are “embedded” “principles” and the High
Court of Australia cannot play Pontius Pilatus and seek to wash its hands of the matter where it has
the responsibility to “interpret” the constitution as to the intentions of the Framers of the
Constitution and not implant their own views, politically or not, into it.
712 Because of his prominent, indeed perhaps decisive role in the establishment of the federation, the words of
Mr Deakin, who was by then the Leader of the Opposition are relevant[826]:
"The Attorney-General last night passed with a gay bound over all those gulfs surrounding the real question at
issue, which is the distribution of powers between the Federal and local Governments.

[826] Australia, House of Representatives, Parliamentary Debates (Hansard), 19 October 1910 at 4806-4807
(emphasis added).
The meaning of the wording “gay bound” would not particularly properly interpreted if we were to
use the current CONTEMPORARY meaning of “gay” now listed as having the first meaning
“homosexual” , second meaning relates to a group of homosexuals and the third meaning listed in
COLLINS dictionary ISBN 0 00 470144-5 is given as 2a carefree and merry gay temperature b.
brightly coloured; brilliant; a gay life“c. given to pleasure, esp. in social entertainment: a gay life
C13; from Old French gai
Webster’s New American directory 1959 list;

Gay adj. Lively and merry
Now if the High Court of Australia was faced with, say, a provision in the Constitution that “Gay
people do not require to pay taxes” using the contemporary interpretation it might purport that
homosexuals do not require to pay taxes. Where even within less then 50 year time span a word can
dramatically change in application to have a meaning not at all known or contemplated at the time
and neither known in dictionary terms, then there is a clear danger for judges to try to interpret the
language used by the Framers of the Constitution disregarding their precise debates about it all. It is
not good enough to just quote what was stated as to reference of corporations, as there was la lot
more stated albeit not in regard of Subsection 51(xx) directly but about the conduct of corporations
going bust and causing people to end up in poverty and having to rely upon hand outs by relatives,
etc. indeed it was Mr. Howe who since 1891 and so persisted in 1897 and then in 1898 finally
succeeded to have the provisions now known as Subsection 51(xxiii) invalid and age pensions
included in the Constitution. It was however recognised that the States would control their own
superannuation schemes and the Commonwealth of Australia would have to determine for itself
what superannuation scheme it would provide, if any, for the former State employees. As such, it
was recognised that the Commonwealth of Australia had only power over its own civil servants
regarding superannuation entitlements had no legislative powers to dictate to anyone else what
superannuation they may have in their workplace.
QUOTE
831 Mason CJ, Deane and Gaudron JJ said in Re State Public Services Federation; Ex parte Attorney-General
(WA)[1067] :
"It is sometimes said that a 'paper dispute' must be a 'genuine dispute'. That means no more than that
written demands must be genuine demands [1068] . If not – if, for example, they are part of a hoax or if
they are intended to dress up a purely intrastate dispute[1069] – their rejection will not involve any
disagreement and, thus, will not result in a dispute at all.
To ascertain whether demands are 'genuine demands', it is sometimes asked whether the demands are
seriously advanced [1070] or, in the case of demands by or on behalf of employees, whether they are
advanced with a view to 'obtaining improved terms and conditions ... within the framework of the claims
made' [1071] . This last formulation is one that takes account of the doctrine of ambit[1072] and allows
that a demand may be genuine notwithstanding that neither the union making it nor its members are
'intent on obtaining forthwith every item which is mentioned in the log of claims or the particular terms
and conditions of employment in the form and in the amounts in which they are expressed in the
log' [1073] .
Given the doctrine of ambit and given that there is nothing inherently artificial about written demands, or
'paper disputes', it will not often be the case that a written demand with respect to the wages or conditions
of employees will be other than a genuine demand." (emphasis added)

832 In Re Australian Education Union; Ex parte Victoria[1074] , in which the Court held that the States, as
employers, could be subject to laws made under s 51(xxxv), Mason CJ, Brennan, Deane, Toohey, Gaudron and
McHugh JJ said [1075] :
"The notion that interstate employers must have a common business or operate in a particular
industry as a pre-condition of the existence of interstate industrial dispute has never been accepted.
Although statements have been made which assert that the nexus or unifying factor which
combines in a single industrial dispute a number of demands made on behalf of a number of
employees is 'the industry' itself [1076] , the nexus may also be found in the calling or vocation in
which the participants are engaged. ... And, in the final analysis, the adoption of the popular
meaning of 'industrial dispute' and the rejection of the view that there must be a dispute in an
industry, is fatal to the contention that the necessary nexus or unifying factor must be found in the
industry."
END QUOTE
It should be noted that the Framers of the Constitution did specifically state it had to be
common as simular disputes in different States regarding the same employer may not be
regarded as interstate in the issues are different as elsewhere set out in this document.
Careful attention ought to be given to the wording;

“Another log of claims was also served with a demand for superannuation only, (see RX /
206.3). This was done in order to create a dispute and thereby to obtain award provision
for superannuation.”
Again;
This was done in order to create a dispute
QUOTE
FEDERAL AWARD LOG OF CLAIMS 1989, C NO. 36649 of 1989, RX / 206.1
SN: In 1989 the ANF served its 1983 log of claims for a Federal award upon employers in SA and WA. This was
done to include, or rope-in new employers to existing awards or creating an award if one did not previously
exist. Another log of claims was also served with a demand for superannuation only, (see RX / 206.3). This was
d one in order to create a dispute and thereby to obtain award provision for superannuation. (A demand omitted in
1983). (A related file is RX / 81.1 which contains the log, ambit and responses to the earlier, 1983 service of the
Federal log. In addition, the RX / 81.1 series is supplemented by local area subdivisions, L1 - L9, for the States
and Territories. This series was created following the service of the 1983 Federal log, and the development of
that case to the award making stage.
END QUOTE
See also Chapter 043B in order to create a dispute
As I view it, what we have here is a perfect example how a Trade Union manipulated its position as
to cause a dispute to be able then to use “superannuation” as an issue.
For the record, the content of the quoted material by the union was obtained when purchasing a
computer that was faulty and having it subsequently repaired. Likewise, I obtained content of
computers having belonged to lawyers, where I purchased their old computers. As such the
ownership of the material was lawfully obtained.
On 17 March 2007 I published;
INSPECTOR-RIKATI® on the battle SCHOREL-HLAVKA v BLACKSHIRTS

For the quest of JUSTICE, in different ways. Book on DVD.
ISBN 978-0-9580569-4-6 was ISBN 0-9580569-4-3
Chapter 044 (also Chapter 044 Carter about Family Court in this book) of this book includes
the following;
QUOTE
* Gary, what is this about Alice Carter?
**#** INSPECTOR-RIKATI®, that was a person who made an assessment about how she
experienced the Family Court of Australia operating!
Alice Carter whom also acted as legal adviser for the Northern Territory in her report about a visit
to the Family Court at Melbourne remarked;
"unfortunately, much of the proceedings I witnessed were repetitive, and general

disorganisation,...."
Page 22 27-8-1997
"Further more the court was disorganised as many files were missing and cases were
adjourned early as many counsel failed to turn up."
"The counsels and their clients also presented themselves well dressed and I could see that
anyone who was not dressed suitably would be extremely obvious. I felt that the emphasis on
looking acceptable could easily disadvantage some people. The whole attitude of the court
to parties was rather more authoritarian then supportive,....."
"Moreover, I felt that the judges were inclined to be slightly patronising and pedantic."
"... and the judge's demands that she speak louder reinforced my observations on the
authoritarian, patronising attitudes of the judges."
"I am now able to understand the general public's fear of going to court and facing judges; I,
too, was overawed by the excessive formality and suprised by the appearance, at least of the
judges' authoritarian and patronising attitude towards others in the court room."
It ought to be noted that Alice Carter is a lawyer!
* That appears not to be too complimentary as to judges!
**#** Well, if she found it to be like that then good she did place it on record.
END QUOTE
To a person like me, in particularly publishing books about legal issues, such computers can be a
treasure trove not just to expose what they are doing and or saying but also to be able to ascertain
how they operate, and my books do also go into that in further details.
Back to the superannuation issue, Mr Howe and other Delegates did not confuse
“superannuation” with “pensions”, and neither pursued the line to put “superannuation” within
Commonwealth legislative powers other then for its own employees and in fact made clear that
persons in high places (Departmental officers, judges, etc) could not contribute to a superannuation
scheme. As such I deem it unconstitutional for judges of federal Courts to be involved with such
kind of superannuation scheme, as it also may place in question their position and the likelihood of
judicial bias.

Mr. HIGGINS.-A number of laws have been held to be unconstitutional in America because of their reasons
and because of their motives. There was a funny case in San Francisco, where a law was passed by the state that
every prisoner, within one hour of his coming into the prison, was to have his hair cut within one inch of his
head. That looked very harmless, but a Chinaman brought an action to have it declared unconstitutional, and it
turned out that the law was actually passed by the Legislature for the express purpose of persecuting Chinamen.
Mr. BARTON.-That took place under the next clause in this Bill, which is a similar enactment.
Mr. HIGGINS.-I did not say that it took place under this clause, and the honorable member is quite right in
saying that it took place under the next clause; but I am trying to point out that laws would be valid if they
had one motive, while they would be invalid if they had another motive. All I want is, that there should be no
imposition of any observance because of its being religious.
Again;
but I am trying to point out that laws would be valid if they had one motive, while they would be invalid if
they had another motive.
For example, the Parliament of Westminster passed the British Nationality Act 1948 but as the
Commonwealth of Australia Act 1900 (UK) section 51(xix) allows for naturalization of “aliens” by
the Commonwealth of Australia to become “British nationals” then clearly for so far this British
Nationality Act 1948 conflicts with the Constitution it is not relevant. Hence, it has no bearing upon
Australians as they are and remain to be British nationals. To accept otherwise would mean the
British Parliament by the British Nationality Act 1948 effectively amended the Constitution
circumventing Section 128 referendum.
Mr. DEAKIN:
When the question of a second chamber comes to be considered, they will assuredly not be satisfied to possess
less freedom. More than this. In framing a federal constitution, we should set out with the explicit claim to
possess and exercise all the rights and privileges of citizens of the British empire to the same extent that
they are possessed and exercised by our fellow -countrymen in Great Britain itself.
It must be kept in mind that Edmund Barton was born in NSW!

Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that we are all alike subjects of
the British Crown.
And
Dr. QUICK.-If we are to have a citizenship of the Commonwealth higher, more comprehensive, and nobler
than that of the states, I would ask why is it not implanted in the Constitution? Mr. Barton was not present when
I made my remarks in proposing the clause. I then-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 defining the qualifications of that federal citizenship, we were not in any way interfering with our
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 of a Commonwealth, but we would still be,
subjects of the Queen.
Mr. SYMON.-
I am not going to put that in the power of any one, and if it is put in the power of the Federal Parliament, then I
should feel that it was a very serious blot on the Constitution, and a very strong reason why it should not be
accepted. It is not a lawyers' question; it is a question of whether any one of British blood who is entitled to
become a citizen of the Commonwealth is to run the risk-it may be a small risk-of having that taken away
or diminished by the Federal Parliament! When we declare-"Trust the Parliament," I am willing to do it in
everything which concerns the working out of this Constitution, but I am not prepared to trust the Federal
Parliament or anybody to take away that which is a leading inducement for joining the Union.

No amount of conventions or other agreements that may have been entered into since federation
could in any shape or form alter the fact that the Constitution contained in the Commonwealth of
Australia Constitution Act 1900 (UK) has the principle embedded that Australians are and remain
to be “subjects of the British Crown”.
Therefore for citizenship issues see also my book published on 30 September 2003;
ISBN 978-0-9580569-6-0 was ISBN 0-9580569-6-X

Hansard 1-3-1898
[start page 1683]
Mr. SYMON.-It is not a law if it is ultra vires.
Mr. GORDON.-It would be law by acquiescence. It would remain a law until it was attacked.
And
Mr. GORDON.-
Once a law is passed anybody can say that it is being improperly administered, and it leaves open the
whole judicial power once the question of ultra vires is raised. Under the clause, as I have amended it, it will
not prevent the plea of ultra vires being raised where it is accompanied with the plea of a conflict of law. If there
is a state law and a Commonwealth law on the same subject, every citizen is entitled to know which be should
obey. If he joins a plea of ultra vires with a plea of conflict of law, that ought to be heard.
We have therefore that if one were to accept the High Court of Australia decision in Sue v Hill that
since 1986 the Constitution was substituted by an identical worded Constitution contained in the
Australia Act 1986 (UK and/or Cth) then effectively the High Court of Australia ruled itself to be a
KANGAROO COURT in that it was not operating within Chapter III of the Constitution
contained in the Commonwealth of Australia Constitution Act 1900 (UK) but under a Constitution
that was never accepted by the people of Australia and indeed constitutionally could not have been.
As my already published books have set out extensively, the Constitution contained in the
Commonwealth of Australia Constitution Act 1900 (UK) did not permit any notion of
republicanism or for that turning the Commonwealth of Australia into some republic.
There are people who argue about the title “Prime Minister’ not being mentioned in the constitution
then his position is unconstitutional, this I do not agree with. The Prime minister is a title the
governor/governor-General bestowed upon the political leader of the Government. It does not
elevate the position above other ministers of the Crown as constitutionally this cannot be done,
albeit by convention this is done unconstitutionally.
The Framers of the Constitution throughout their debates did contemplate that there would be a
Prime minister in the newly to be formed Commonwealth of Australia, but nothing in their debates
and neither in the Constitution sought to elevate a Minister with the title Prime minister to have a
special constitutional position as it was all along taken that the Prime Minister as like any other
minister would be a “servant” engaged by the Queen to run a Department.
While the Prime minister appears to have a slash fund of about 400 million dollars to spend as he
desire, this I hold is unconstitutional. Likewise the Ministers robbing Consolidated Revenue for
their pay is like a checkout chick (register attendance) putting their hands in the till to reward
themselves with money they deem they earned rather then to await pay from the employer.
Indeed, if any person were to come before the Courts the person more then likely would be found
GUILTY of deception (stealing) yet the Constitution providing that the Queen shall be paid out of
the consolidation Revenue for the Ministers must make it clear that their annual salary and their
superannuation is a matter between the British Monarch Queen Elizabeth II and the Minister and
nothing to do with the taxpayers. The fact that the Federal Government has appointed a
Remuneration Tribunal does not circumvent constitutional constrains. If this was deemed to be
permissible then we might as well, so to say, throw the Constitution out of the window as Members
of Parliament can circumvent then constitutional prohibitions by legislating whatever they want.
As set out in my previously published books, the Queen has at times appointed a former Governor-
General to be a Prime Minister (A clear example is the Prime Minister of New Zealand who
admitted during the Constitution Convention Debates having been sacked as Governor-General but
then Her Majesty Victoria still appointed him subsequently as he claimed Her Majesty did not
approve of his sacking) and as such it is absurd and indeed unconstitutional and illegal to provide
payments for a former Governor-General while he can still serve the Queen in other positions.
It is irrelevant what Prime Minister Billy Hughes may have stated in Parliament in 1919 as there is
and never was any constitutional powers for a Prime Minister to somehow declare the
Commonwealth of Australia to be independent. Indeed, a Prime Minister has not even any powers
to declare or authorise a war, as this would be also against Section 24AA of the Crimes Act of
TREACHERY as only the Governor-General has the prerogative powers to DECLARE war or
peace and it can only be enacted upon after it has been Gazetted.
In recent days, it was reported that G. W. Bush was making an issue that innocent people are being
killed with their suicide bombing in Iraq. This, more then 4 years after the so called “SHOCK &
AWE” bombardment that killed many innocent people.
Ironically that the worst offender of mass killing by bombing would complain about others to do so
in a minor scale. Any killing is deplorable, and there can be no justification to do it because of
(ILLUSIVE) WEAPONS OF MASS DESTRUCTION or for other reasons.
We have courts to deal with legal disputes, that if unless you approach the High Court of Australia,
as I did, to seek within Subsection 75(v) a mandamus/prohibition as then the Court somehow
ignores it constitutional obligation to make a ruling based upon the MERITS of the case before it by
simply railroading the entire case. The fact that the very issues then presented before the Court were
subsequently also pursued by me in the County Court of Victoria and then the numerous
constitutional grounds remained to be UNCHALLENGED may underline that there was an issue
to be litigated. As the application before the High Court of Australia had been amended in
accordance to the previous given directions by the Registrar of the Registry, then the Courts refusal
on basis that it did not comply with the Rules of the Court was a total absurdity and I view a abuse
of legal powers to shield the Federal Government from its unconstitutional conduct to be held
legally accountable.
To my knowledge, no one, besides my self sought to litigate the constitutional validity of the armed
invasion into the sovereign nation Iraq against the Federal Government. it was not relevant to me if
there were WEAPONS OF MASS DESTRUCTION or not and if the USA could prove with
delivery receipts that it had provided chemical or other weapons to Iraq, my issue was that
Australian troops could not be allowed to enter the sovereign nation Iraq, also considering Section
24AA of the Crimes Act (Cth) unless the governor-General first published a DECLARATION OF
WAR in the Gazette.
As such, my application within Subsection 75(v) was not political motivated but was one to the
GUARDIAN OF THE CONSTITUTION, as the High Court of Australia purports to be, to
uphold the terms and conditions set out in the Constitution.
Indeed, the framers of the Constitution specifically provided that the Court has to hear such a case.
Well, it didn’t and as such I hold that this refusal at the very least contributed to the mass murder of
many innocent Iraqi’s. Likewise the hanging of the late President Saddam Hussein, while having
been held in custody of the so called COALITION OF THE WILLING, is an utter disgrace. We
have that the High Court of Australia no longer seems to hold the Federal government accountable
for it unconstitutional/illegal conduct and we have seen also that even the Australian Federal Police
was using tax-payers monies to pay people in Indonesia to seek to prevent by some means refugees
to enter the Commonwealth of Australia. How much this resulted in the drowning on 19 October
2001 of the 353 deaths, not to forget including 146 children when the SIEV X sank is also an
appalling and disgraceful occurrent that will remain with us.
No one can hold it against the High Court of Australia if it doesn’t act because no case is presented
before it and so it cannot invoke jurisdiction, but it is another matter if it actually refuses to invoke
jurisdiction where I placed on various occasions matters before the Court to seek a “judicial
determination” on the MERITS of the cases but was refused this.
We had a Prime Minister, not even validly elected as I proved in court successfully, who authorise
mass murder by being involved in authorising the attack upon the sovereign nation Iraq and yet the
High Court of Australia rather then to grab the case with both hands, so to say, as to be able to make
a “judicial determination” as it should have done as a GUARDIAN OF THE CONSTITUTION,
rather then, in my view, was politically motivated to prevent the Federal Government to be legally
accountable for its deeds..
I did not seek the High Court of Australia to make a political decision and/or a political motivated
decision rather relied upon the Framers of the Constitution to support my case that we have a
constitution and we have a “constitutional government” and the Courts obligation was to ensure that
my case was heard and determined upon legal facts!
I view that more then likely the judges may have contemplated that the issue might just go away
and WEAPONS OF MASS DESTRUCTION might be found to somehow justify the armed
murderous invasion but to me the conduct of the judges was appalling and undermining the
credibility of the court as it should never have accepted that innocent people were being slaughtered
merely upon some perceived notion of WEAPONS OF MASS DESTRUCTION and for this
somehow the constitutional limitations were no longer applicable.
It is this same absurd view that seems to surface time and again by judges to hold that somehow the
Federal Parliament can suspend “civil right” when ever the federal government were to hold there is
a WAR.
Well the challenge is upon the judges to prove on LEGAL FACTS where the Framers of the
Constitution provided this, not just imaginary powers, but rather recorded statement in the Hansard
of the Constitution Convention Debates that it was stated specifically by the Framers of the
Constitution that the Commonwealth of Australia could use its armed forces or military powers
against its own citizens and other without the prerogative powers of the Queen, being delegated
through the Governor-General for the Commonwealth of Australia or a Governor of a State?
My published books set out extensively what the Framers of the Constitution debated and that
included that there was no power for the Commonwealth of Australia to use its forces against
citizens of a State and it was up to a State to request assistance in case of “domestic violence” (civil
war). As such, if the Commonwealth of Australia is specifically prohibited to use its defence
powers to invade any State then it could not be assumed that nevertheless somehow the
Commonwealth of Australia still can act contrary to this, because in 1943 some judges may ill-
conceived have concluded this with a total disregard then to the Hansard records of the Constitution
Convention Debates stated intention of the Framers of the Constitution.
Please read first Chapter 077 David Hicks entitled to enter Federal Parliament before
continuing reading further.
Somehow we now are seeing that David Hicks is going to be held in imprisonment in South
Australia not upon the issue if the South Australian Government recognise the Military Tribunal
with its kind of litigation system or it being a so called STAR CHAMBER COURT system
outlawed in the States and Commonwealth of Australia, but that the Federal Government somehow
seeks to trample upon States rights and make arrangements that effectively recognise STAR
CHAMBER COURT conduct and convictions obtained by torture as to be part of the Australian
legal landscape. And I would, so to say, hold my breath for the High Court of Australia as the
GUARDIAN OF THE CONSTITUTION to take appropriate action as I understand that with the
Pacific Solution it then also allowed the unconstitutional conduct by the Federal government to
flourish and indeed to continue by ill conceived ADMINISTRATIVE DETENTION, while
constitutionally Section 120 prohibits any such kind of conduct. As the Framers of the Constitution
made clear it is the Governor-General who invokes prerogative powers and not some Prime
Minister and as such if we have any really fair dinkum OFFICERS OF THE COURT presiding at
the bench then I expect no less that John Howard and his cohorts who authorised the
unconstitutional conduct, and those who directly and/or indirectly supported this conduct are
brought to JUSTICE and face the legal consequences of their TREACHERY, etc.
Mr. BARTON.-Yes. The Queen is the Commander-in-Chief of the British Army. She has the sole power
of making peace and war. According to constitutional assumption it is her army. But who exercises the
control of the Imperial Army? Is it not the adviser of the Queen? Would there not, as I said before, be a
revolution if the Queen exercised her powers without consulting her Ministers?
And
Then, again, there is the prerogative right to declare war and peace, an adjunct of which it is that the
Queen herself, or her representative , where Her Majesty is not present, holds that prerogative. No one
would ever dream of saying that the Queen would declare war or peace without the advice of a responsible
Minister. Wherefore, we all came to the conclusion, as constitutional writers have long come to the
conclusion, that the prerogative is given in trust for the people, and is, therefore, only exercised at the
instance of a responsible Minister. I should like to know whether there would not be a revolution in
England if the Queen chose to declare war or to make peace without the sanction or advice of a
responsible Minister? That would be as absolutely gross an infraction of the Constitution as an attempt to
abolish the House of Commons, as the advent of a second Protector, not only taking away the bauble, but taking
all those who surrounded it. Do we not then come to this conclusion, that the Constitution is absolutely safe
in this form as we understand it, that you can not have a prerogative of the Crown in these modern days
which can be exercised without the advice of a responsible Minister if a responsible Minister chooses to
advise?
Therefore, it must be clear that the “responsible Minister” being the Minister of Defence is the only
appropriate person to advise the Governor-General as after all he is the “responsible Minister” who
is commissioned to be the Minister for the Department of Defence.
While the Delegates did at times indicate that there would be a Prime Minister, and as such the
unwritten Constitution does include the appointment of a Prime Minister, it does however not take
away the constitutional condition that only the Minister of Defence can advise the Governor-
General as to if the Governor-General ought to issue a DECLARATION OF WAR or not.
Mr. BARTON.-
But the Minister is responsible for the administration of the department as the person under whose
control it is, within the Executive arrangement, and he is responsible for all expenditure upon it. Having
this responsibility, he is entitled to tender the advice which will enable him to exercise his responsibility
fearlessly.
As such, unless the Prime Minister happens to be at the time the Minister of Defence, the Prime
Minister does not service in dealing with the issue of if there should or should not be a request to
the Governor-General for a DECLARATION OF WAR to be issued.
In the case with the armed invasion into the sovereign nation Iraq, either the Minister of Defence
did not give any advise to the Governor-General, considering,
“if a responsible Minister chooses to advise”
or the Minister of Defence simply did give the advise but the Governor-General at the time deemed
it was against the national interest of the “general community” to authorise an armed invasion into
the sovereign nation Iraq. Either way, the end result was that the Minister of Defence had no lawful
authority to deploy Australian troops and certainly not invade the sovereign nation Iraq. Indeed, any
armed invasion would be in breach of Section 24AA of the Crimes Act (Cth) as Iraq was at the time
a “friendly” nation.
It also must be understood that the Federal Parliament neither could authorise an armed
invasion, even if it had purportedly done so, albeit the Senate opposed this in any event.
As for the United Nations, it had no constitutional position to override the prerogative powers of the
Governor-General or any other constitutional power or limitation, and even if the UN somehow had
authorised an armed invasion into Iraq, which I understand it never did in any event, it still would
not have made it constitutionally valid for the Minister of Defence to allow Australian troops to
invade the sovereign nation Iraq.
Sir J. G. LEE STEERE.-
. What is the use of our agreeing to have a federal defence force if there is to be no head? Suppose a war broke
out and we wanted to concentrate all the colonial troops in one place, who is to give the orders? The Prime
Minister of one colony would not allow the Prime Minister of another colony to give such orders. We must
have a general appointed by the Imperial Government to take command of the troops, and we must have an
Executive Government on whose orders that general would act, otherwise we cannot have federal defence.
Sir SAMUEL GRIFFITH: I should have preferred, Mr. President, that my hon. friend beside me, the Hon.
James Munro, Prime Minister of the great colony of Victoria, should have followed you in the debate on the
resolutions that you have submitted to us.
The PRESIDENT:
By some oversight when the delegates were elected by Parliament, there was, I believe, no member of the
government elected beside the Prime Minister, Mr. Munro, and unless Mr. Shiels be allowed the privilege of
remaining upon the understanding that he will not take part in the voting, the Prime Minister of Victoria will be
left without a colleague in his government
Mr. GILLIES:
How could it possibly live unless the prime minister obtained a dissolution from the governor-general?
In this context it refers to the Governor-General and as such it refers to the Prime Minister of the
Commonwealth of Australia.
Mr. CLARK:
When we know that he has the power of nominating every member of the senate, and every lieutenant-governor,
and of appointing superior and inferior judges and justices of the peace, as well as the power of vetoing all local
legislation, his long term of office is easily accounted for. With such reins in his hands he might be expected to
remain in the saddle an indefinite time. We do not want to place it in the power of the prime minister of our
dominion to exercise patronage to that extent. What we want is a separate federal judiciary, allowing the
state judiciaries to remain under their own governments.
The so called WAR ON TERROR is not a WAR against some visible enemy, or some other nation
having armed forces, but rather has been ENGINEERED by POLITICIANS to pretend there is
some WAR going on and so that they can use this as an excuse to suspend CIVIL RIGHTS, etc.
The High Court of Australia in the 1943 Jehovah witness case wrongly then concluding that
somehow the Commonwealth of Australia could suspend “CIVIL RIGHTS” in time of war. The
truth is that the so-called WAR ON TERROR is not a WAR at all. It is a political trick but in the
process having declared this war against INDIVIDUALS, as that is what it amount to, then
INDIVIDUALS take it upon themselves to defend themselves in a PRE-EMPTIVE strike kind of
tactic (Remember the PRE-EMPTIVE strike to invade Iraq by the Coalition of the Willing?) which
included the Bali bombing killing 88 Australians.
I deplore any kind of killing of human being and nothing I write should be seen to seek to justify
the killing of 88 Australians in those bombings, but lets be clear about it, those INDIVIDUALS
who did the bombings were after all in a WAR against the Australian Government, as the
Australian Government had declared war on them, albeit not specifying specifically who the
Federal Government declared WAR against.
"Naturally, the common people don't want war, but after all, it is the leaders of a country who
determine the policy, and it is always a simple matter to drag people along whether it is a
democracy, or a facist dictatorship, or a parliament, or a communist dictatorship. Voice or no
voice, the people can always be brought to the bidding of the leaders. This is easy. All you
have to do is tell them they're being attacked, and denounce the pacifists for lack of patriotism
and exposing the country to danger. It works the same in every country."
Hermann Goering, Hitlers' Reich-Marshall, at the Nuremberg trials after WW2.
Indeed, this too was my constitutional issues before the courts, and so successfully, that on 8
October 2001 the writs were issued by the Governor-General but unbeknown to the Governor-
General the PROCLAMATION to prorogue the Parliament and to dissolve the House of
Representatives had not been Gazetted and so published until 9 October 2001 and as such the writs
were without legal force. Neither did the Gazette bear any references to Government Printer, as was
required by the Act Interpretation Act 1901 and as such was neither valid for this also.
See also page 10 of the Chapter Chapter 003 LEGAL FICTION
Mr. SYMON (South Australia).-
In the preamble honorable members will find that what we desire to do is to unite in one indissoluble Federal
Commonwealth-that is the political Union-"under the Crown of the United Kingdom of Great Britain and
Ireland, and under the Constitution hereby established." Honorable members will therefore see that the
application of the word Commonwealth is to the political Union which is sought to be established. It is not
intended there to have any relation whatever to the name of the country or nation which we are going to create
under that Union. The second part of the preamble goes on to say that it is expedient to make provision for the
admission of other colonies into the Commonwealth. That is, for admission into this political Union, which is
not a republic, which is not to be called a dominion, kingdom, or empire, but is to be a Union by the name
of "Commonwealth," and I do not propose to interfere with that in the slightest degree. The first clause
says-This Act maybe cited as the Commonwealth of Australia Constitution Act." I assent to all that. Then comes
clause 3, which says it shall be lawful for the Queen, by and with the advice of Her Majesty's Most Honorable
Privy Council, to declare by proclamation that, on and after a day therein appointed, not being later than one
year after the passing of this Act, the people of the colonies enumerated shall be united in a Federal Constitution
under the name of-I say it ought to be "of Australia."
Again;
That is, for admission into this political Union, which is not a republic, which is not to be called a
dominion, kingdom, or empire, but is to be a Union by the name of "Commonwealth," and I do not
propose to interfere with that in the slightest degree.
And also consider;

Mr. BARTON.- I did not say that. I say that our real status is as subjects,
and that we are alike subjects of the British Crown .
Edmund Barton was born in NSW and later became the Second Prime Minister of Australia after
the first commissioned Prime Minister Mr. Lyne resigned his commission after 6 days because he
could not form a Government. He had been an obstruction to the formation of the political union,
but the Governor-General at the time held to be obligated to commission him to be the first Prime
Minister of the newly to be formed Commonwealth of Australia as Lyne was the Prime Minister of
the oldest colony NSW.
Mr. SYMON.-
Dual citizenship exists, but it is not dual citizenship of persons, it is dual citizenship in each person. There may
be two men-Jones and Smith-in one state, both of whom are citizens of the state, but one only is a citizen of
the Commonwealth. That would not be the dual citizenship meant. What is meant is a dual citizenship in
Mr. Trenwith and myself. That is to say, I am a citizen of the state and I am also a citizen of the
Commonwealth; that is the dual citizenship.
And
Mr. SYMON.-
. As a citizen of a state I claim the right to be a citizen of the Commonwealth. I do not want to place in the
hands of the Commonwealth Parliament, however much I may be prepared to trust it, the right of
depriving me of citizenship.
And
Mr. SYMON.-I would not put such a power in the hands of any Parliament. We must rest this Constitution
on a foundation that we understand, and we mean that every citizen of a state shall be a citizen of the
Commonwealth, and that the Commonwealth shall have no right to withdraw, qualify, or restrict those
rights of citizenship, except with regard to one particular set of people who are subject to disabilities, as
aliens, and so on. Subject to that limitation, we ought not, under this Constitution, to hand over our birth right as
citizens to anybody, Federal Parliament or any one else, and I hope the amendment will not be accepted.
And
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.
And
Mr. BARTON.-
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 pending that legislation we give the qualification of electors. It is that qualification of electors
which 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 the British 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.
Mr. KINGSTON.-Such legislation is only good within the limits of each state.
with them in this Constitution.
Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 (9 December 2003).
Doesn’t address what-so-ever the “State legislative jurisdiction” as to “citizenship”.
Therefore, we have a High Court of Australia that appears to me being political motivated to try to
alter the Constitution by stealth!
It must be clear that the terminology used are; “British subject”, “to make persons subjects of the
British Empire.”, “with the consent of the Imperial authority”, “What is meant is a dual
citizenship in Mr. Trenwith and myself. That is to say, I am a citizen of the state and I am also
a citizen of the Commonwealth; that is the dual citizenship.”
There are numerous other quotations that makes it very clear that Australians (as they then already
were referred in view of the title Australia of the continent) in reality were British subjects and
aliens were to be naturalized by consent of the British Parliament to be made British subject
(nationals).
Again the quotation from the joint judgment; Windeyer J said in Victoria v The Commonwealth ("the Payroll
Tax Case")[18] ( [18] (1971) 122 CLR 353 at 395-396.)
"The Colonies which in 1901 became States in the new Commonwealth were not before then sovereign bodies in
any strict legal sense; and certainly the Constitution did not make them so. They were self-governing colonies
which, when the Commonwealth came into existence as a new Dominion of the Crown, lost some of their former
powers and gained no new powers. They became components of a federation, the Commonwealth of Australia. It
became a nation.
Clearly, this 1971 statement of Windeyer J could not be relied upon where it was made without the
High Court of Australia then permitting the usage of the Hansard records of the Constitution
Convention Debates. It might suit the judges of today to seek to rely upon it for purpose to achieve
to their end result to validate the unconstitutional IR WorkChoices legislation but this only, in my
view, questions the credibility of the judges concerned.
Mr. HIGGINS.-I understood the honorable member to put himself on the very highest pedestal, and by
contrast to put me on the very lowest. At all events, I feel that if this were carried, an unpopular individual, to
obtain his rights and liberties, would have to go cap in hand to and be at the mercy of the Government of the day.
I was thinking of the pig-tail case which occurred in California, and which I alluded to some time ago,
where an abominably unjust law was passed against Chinamen. It was passed to persecute them in regard
to their pig-tails, which they [start page 1689] regard with exceptional reverence. That law was declared to
be unconstitutional as a law passed by a state. I ask honorable members to consider the great difficulty there
would be in getting the Federal Congress or Federal Executive to interfere in the case of Chinamen, so as to
enforce their rights in such a case. There was an exceptional law which should never have been passed. It was
distinctly a persecuting law. Any practical politician would see the great difficulty there would be in appealing to
a Federal Executive, especially if there was an election approaching, to enforce the just rights of Chinamen in
such a case. The same thing might happen supposing a federal law were passed which was outside the
Constitution. Supposing that a majority of the state concerned happened to regard the man as unpopular
supposing a law were passed that no one bearing the name of Jones should be admitted into the state of Virginia,
the law might be directed against a certain person named Jones, and it would be unconstitutional, and Jones
could not enforce his rights to go into that state. I ask, is he to be compelled to go cap in hand to the Attorney-
General of the state of Virginia to enforce his rights? I feel that, with the very best intentions my honorable
friend is making the gravest of mistakes. So far as regards the main purport of the amendment, it would mean
this: That you could only get a point of this sort decided by having a state or Commonwealth intervening as a
party. You would turn judicial questions into political questions. You would proclaim-"Here is a question
between the state and the Commonwealth; here is a political question"; and you would make the Judges
partisans. It is one of the great advantages of private persons being able to raise these points, and not the
states or the Commonwealth, that you keep the judicial bench free from the taint of political partisanship.
I feel that the more you look at this thing all round, the more inconsistent it is with the very first principles of
justice. It may be said-Even supposing the law does go beyond the Constitution in some degree, surely it ought
not to be left to a private person to upset it." I say it ought to be upset at once and at the very earliest point.
As soon as ever you find it has gone beyond the bounds you ought to say-"This thing is illegal." Otherwise
you will leave to the Ministry of the day these powers of which you are so careful, giving them to a
majority of the states and to a majority of the people. You would allow the Ministry of the day to exercise
a suspending power as to whether it would enforce a law or not, which is most dangerous.
Mr. OCONNOR.-
Then how can you say that you are protecting the man who is so poor that he cannot afford to go to the Privy
Council, when you are leaving in the Constitution a power which enables a case to be taken to the Privy Council
at any time? If one looks at this matter not from the view of an appeal to passion, or by-using epithets, or by the
introduction of any other irrelevant matter at all, then the only question which arises is-Should we extend this
power of appeal to the class of cases to which it has been decided by the Privy Council that the right applies? It
has been laid down in many cases that it is not in every instance that Her Majesty in Council will allow this right
of appeal. And may I remind honorable members for a moment of the way this right is exercised? The petitioner
appeals to the Queen. The petition is referred to the Privy Council. If it be a proper case for appeal the Privy
Council gives leave, and then the appeal has to be made to the Privy Council. This is a roundabout elaborate
method, but it is the method that has to be adopted. It is not in every case that the appeal is allowed. It has
been laid down in the case of Prince v. Canyon and in many other cases that this appeal will not be allowed
where the case involves. only disputed matters of fact in which no question of magnitude is involved, and
no question of public interest and importance. Consequently, it in only in cases where it is either some.
particular question, as affecting great interests-as affecting the interests of many persons-as affecting
some question of the conflict of laws or of decisions which have already been come to; it is only in [start
page 2311] those cases in regard to which the rule has been laid down as to Canada that appeals will he
permitted.
And
Mr. CARRUTHERS (New South Wales).-
This Constitution does not give the people of Australia power to make laws at all. Can any honorable
member deny that? This Constitution, I repeat, does not give the people of Australia power to make laws.
No law is worth a snap of the fingers until the Queen has given her assent to it.
Mr. SYMON-Oh, oh!
Mr. CARRUTHERS.-It is all very well to brush aside my contention in that way, but, as a matter of fact, you
have to obtain the Royal assent to a proposed law before it can become law. Having acknowledged the right of
the Crown in regard to the power of making laws, the argument of the honorable member falls to the ground in
regard to claiming the right of making the laws.
Mr. SYMON.-And the Queen's court interprets them.
Mr. CARRUTHERS.-All we ask is that the Queen's court, as we know it, should be the court under this
Constitution to interpret the laws-rather the court we know than the court we don't know.
And
Mr. CARRUTHERS.-
My [start page 2313] honorable friend urges a very common argument against the continuance of this
right of appeal to the Privy Council-an argument which only needs to be examined to be thoroughly
demolished, namely, that we want to have, in the final Court of Appeal, a body of Judges who have
colonial experience, who have colonial ideas, and who have colonial knowledge. Now, any man, especially
an able member of the bar like-my honorable friend, ought to know that the worst tribunal you could
have would be a tribunal that would decide, not on the sworn testimony submitted to the court, but on
knowledge of the case, and in regard to the case and its surroundings, in the minds of the Judges-evidence
of a character which cannot be shaken by cross-examination-evidence which is not known to the parties
interested in the case at all. I venture to say that more mischief is done by cases being decided by some
twist or turn in the minds of Judges than by any judicial interpretation of the evidence submitted to the
court. Now, my great objection to establishing the final Court of Appeal in Australasia is because there is
existing in the minds of the Judges that unconscious bias. I do not impute corruption; I would be very sorry to
do or say anything which would tend to diminish the weight of the authority of our colonial benches; but without
laying myself open to the charge of saying anything improper, I venture to repeat that that unconscious bias does
exist, and will always exist, in small communities, especially where they are inhabiting large territories.
While Wilson J stated at 42;

While on present authority it is not permissible to seek the meaning of s. 116 in the convention debates,
Wilson J of the High Court of Australia in the 1982 religious funding case argued that he could not
(then) rely upon the Hansard records, but even if he did he found that the Framers didn’t exclude
religious funding. The other judges relied upon this and concurred with him.
The truth is that religious funding, regardless if it is by tax exemption, tax deduction, etc, is all
unconstitutional, as it all in the end is funds, one way or another, from consolidated Revenue.
It must be clear that the about $9,000.00 per student for Exclusive Brethern and/or other kind of
religious schools is unconstitutional as they serve a religious purpose. Likewise the tax free or tax
concession provided by Peter Costello for the renovation of a Catholic Church clearly was
unconstitutional!
The Commonwealth of Australia cannot legislate what a religion is, and therefore can neither
provide for funding for any religious organization. It doesn’t matter if it is a Jewish, Islamic,
Buddhist, Catholic, or other kind of religious school it all is and remain unconstitutional.
Sir JOHN DOWNER.-I do not think that is necessary, because the Commonwealth will have only such
powers as are expressly bestowed upon it, and by no straining of construction can you find that the
Commonwealth has been given any power to legislate with regard to religion.
Mr. HIGGINS.-No; it would only prevent the making of laws for a religious reason.
Dr. COCKBURN.-Who could determine the intention of the state? The amendment would simply prohibit the
enactment of these laws.
Mr. HIGGINS.-My desire is to prevent the Federal Parliament from dictating to the states in these
matters.

National Australasian Convention) (Chapter 33 of the CD) (Re-now- Section 96 of the Constitution)
Mr. OCONNOR.-It is nicely wrapped up. Any one who reflects upon the conditions which must exist before
this provision can be brought into operation will see that it assumes that the states must be reduced to a condition
of pauperism before they can take advantage of it.
Sir JOHN FORREST.-What would you do if they were?
Mr. OCONNOR.-I will come to that. Mr. Wise seems to be of opinion that there is some power implied
in the Constitution to give such aid. Now, from the consideration and study which I have been able to give
to the Constitution, I have no hesitation whatever in saying that there is no such power implied. The
Constitution is formed for certain definite purposes. There are definite powers of legislation and definite powers
of administration, and the clause that the Right Hon. Sir John Forrest called attention to just now-clause 81-
expressly provides that the revenues of the Commonwealth shall form one consolidated fund, to be appropriated
for the public services of the Commonwealth in the manner and subject to the charges provided in this
Constitution.
Mr. WISE-The order and good government of the Commonwealth would come under the term "public
services of the Commonwealth."
Mr. OCONNOR.-I do not agree with the honorable member in his interpretation of the powers of the
Commonwealth, especially when dealing with the expenditure of the money of the taxpayers. In such a case
there will be a great deal of care taken to keep the nose of the Federal Parliament to the grindstone in the matter
of this expenditure. I do not think any expenditure will be constitutional which travels outside these limits.
We must remember that in any legislation of the Commonwealth we are dealing with the Constitution. Our own
Parliaments do as they think fit almost within any limits. In this case the Constitution will be above
Parliament, and Parliament will have to conform to it. If any Act were carried giving monetary assistance
to any state it would be unconstitutional, and the object sought would not be attained. That brings me to the
question of whether it is desirable that there should be any such power either expressed or implied. I have no
hesitation in saying that it would be a disastrous thing for the future of the [start page 1109 ] Commonwealth if
there was any such power given.
WELSH v. UNITED STATES, 398 U.S. 333 (1970), 398 U.S. 333, WELSH v. UNITED STATES, CERTIORARI
TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, No. 76., Argued January 20,
1970, Decided June 15, 1970 20 January 1970
3. Section 6 (j) contravenes the Establishment Clause of the First Amendment by exempting
those whose conscientious objection claims are founded on a theistic belief while not
exempting those whose claims are based on a secular belief. To comport with that clause an
exemption must be "neutral" and include those whose belief emanates from a purely moral,
ethical, or philosophical source. Pp. 356-361.
4. In view of the broad discretion conferred by the Act's severability clause and the longstanding policy of
exempting religious conscientious objectors, the Court, rather than nullifying the exemption entirely, should extend
its coverage to those like petitioner who have been unconstitutionally excluded from its coverage. Pp. 361-367.
Yet, the Commonwealth Electoral Act 1915 Section 245 unconstitutionally provides for
religious exemption!
As stated below;
QUOTE
Remarkably, albeit the Constitutional Convention Bill 1898 (see 16 March 1898) had no
provision for financial assistance to the states, as was defeated by the Convention (as shown above)
in the final Constitution never the less, as enacted in 1900 had the following;
96 Financial assistance to States

During a period of ten years after the establishment of the

Commonwealth and thereafter until the Parliament otherwise
provides, the Parliament may grant financial assistance to any State
on such terms and conditions as the Parliament thinks fit.
It appears therefore, that albeit the matter was defeated at the Constitutional Convention, it was
inserted thereafter!
END QUOTE
However, as the matter was extensively debated, as shown below, therefore we still do now what
Section 96 was about, being State financial crisis matters, nothing to do with religious school
funding! Therefore the High Court of Australia in ATTORNEY-GENERAL (VICT.); EX REL.
BLACK v. THE COMMONWEALTH [1981] HCA 2; (1981) 146 CLR 559 (2 February 1981) and
other decisions were utterly wrong about the application of Section 96, and it being used for
funding schools. Section 96 is limited to State financial crisis, and not for some third party funding,
to obtain unconstitutional powers over States or others!
If we briefly attend to the provision of section 51(iv) as to borrowing funds, then this too is limited;
National Australasian Convention) (Chapter 33 of the CD);
Mr. ISAACS.-You are referring to paragraph (4) of clause 52?
Mr. HOLDER.-Yes.
Mr. OCONNOR.-But that money could not be spent upon any object the Federal Parliament thought
fit.
Mr. HOLDER.-I want an expression of opinion which shall be authoritative on the point. I see that, according
to the provision I have quoted, there is power given to the Federal Parliament to borrow money on the credit of
the Commonwealth, and I say again that I do not know of any limitation of the expenditure of that money except
the limitation which would be specified in the Loan Act authorizing the borrowing of the money. Of course,
these words cover the raising of the money for the building of railways for instance, and in such a case the
limitation would be the terms of the Loan Act. But is there anything anywhere to prevent a Loan Act being
passed by the Federal Parliament authorizing the raising of a certain sum of money, the proceeds of which loan
might be divided according to the terms of the Act among the states according to their needs, or upon some other
principle?
Mr. GLYNN.-The first three lines of clause 52 affect that point.
Mr. ISAACS.-The money must be expended with regard to "the peace, order, and good government of
the Commonwealth," not of the states.
And
Mr. BARTON.-The honorable and learned member (Mr. O'Connor) pointed out that it might prevent
the passing of a law for Sunday observance. The real question for-as to decide is whether the clause should or
should not remains. The only difficulty I have upon the point is this: I do not anticipate any trouble from
the want of a prohibition upon the states forbidding them from dealing with religious questions, but we
must always [start page 662] recollect that humanity has a habit of throwing back to its old practices.
Since a couple of hundred years ago we have been tolerably free from sumptuary laws. But there is in
many quarters a great disposition to take to these laws again, and we may before many years have passed
be overwhelmed with them.
Clearly, Commonwealth of Australia borrowings are therefore very limited as to what it can be used
for!
Mr. HIGGINS (Victoria).-In Adelaide I voted against the insertion in the preamble of a form of words
proposed by the honorable member (Mr. Glynn), and it is with regret that I shall have to repeat that vote-at the
present time, because the Constitution contains no provision to obviate the had effect which the insertion of these
words will have. I am glad that I am so far justified in my opposition to the proposal made by the honorable
member in Adelaide by the fact that no Assembly and no person has suggested the insertion of the words which
were then proposed to be inserted by the honorable member. Those words were utterly inappropriate. I freely
admit that the words which he now proposes to insert are not quite so objectionable, though I still think that the
amendment could be improved upon. I say frankly that I should have no objection to the insertion of words of
this kind in the preamble, if I felt that in the Constitution we had a sufficient safeguard against the passing of
religious laws by the Commonwealth. I shall, I hope, afterwards have an opportunity, upon the reconsideration
of the measure, to bring before the Co nvention a clause modified to meet some criticisms which have been made
on the point, and if I succeed in getting that clause passed it will provide this safeguard. I shall have an
opportunity then of explaining how exceedingly important it is to have some such safeguard. There is no time for
me now to go into an elaborate history of this question so far as the United States of America are concerned. I
have investigated it with a great deal of care, and I can give the result of my investigations to honorabl e
members, who, I hope, will not believe that I would misled them if I could help doing so with regard to the effect
of what has taken place there. Because they had no words in the preamble of the Constitution of the United
States to the effect of those which the honorable member (Mr. Glynn) wishes to insert, Congress was unable to
pass certain legislation in the direction of enforcing religion. There was a struggle for about thirty years to have
some words of religious import inserted in the preamble. That struggle failed; but in 1892 it was decided by, the
Supreme Court that the people of the United States were a Christian people.
Mr. BARTON.-That decision was followed practically by the decision that they were a Christian people.
Mr. HIGGINS.-Yes. That decision was given in March or February, and four months afterwards it was
enacted by Congress that the Chicago Exhibition should be closed upon Sundays, simply upon the ground that
Sunday was a Christian day. The argument was that among a Christian nation you should enforce Christian
observances.
Mr. BARTON.-Could they not have closed the exhibition on Sundays without that enactment?
Mr. HIGGINS.-I think the honorable and learned member will hear me out in this, that there is nothing in the
Constitution of the United States of America, even indirectly, suggesting a law of this sort. No doubt, the state of
Illinois could have passed such a law, because it has all its rights reserved. But there was nothing in the
Constitution enabling the Congress to pass. a law for the closing of the exhibition Sunday. As soon as ever those
parties who had been working for the purpose of getting Sunday legalized throughout the United States found
that decision given in February, 1892, that "this is a Christian nation," they followed it up quickly, and within
four months there was a law passed for the closing of the exhibition on Sunday.
Mr. WISE.-Was that held to be constitutional?
Mr. BARTON.-It has not been challenged yet.
[start page 1735]
Mr. HIGGINS.-It has been in force for five and a half or six years, and it was struggled against, as my
honorable friend will know. There was a strong monetary interest against it, and they, no doubt, took advice, but
I will say frankly that I am not aware that it has been held to be constitutional. I understand though that there has
been no dispute among the legal men in that country as to its being constitutional. Honorable members will
hardly realize how far the inferential powers have been extended in America. I should have thought it obvious,
and I think Mr. Wise will agree with me, that the Congress had no power to pass a law of that sort.
Mr. WISE.-I admit that your statement puts a very different complexion on the matter.
Mr. HIGGINS.-I hope it does, because it will become a very important matter. I should have thought that it
was not within the scope of Congress to pass a law, no matter how righteous, to close the exhibition on Sunday,
but I find, on looking to a number of decisions in the United States, that it has been held again and again that,
because of certain expressions, words, and phrases used in the Constitution, inferential powers are conferred
upon the Congress that go beyond any dreams we have at present. I know that a great many people have been got
to sign petitions in favour of inserting such religious words in the preamble of this Bill by men who know the
course of the struggle in the United States, but who have not told the people what the course of that struggle is,
and what the motive for these words is. I think the people of Australia ought to have been told frankly when they
were asked to sign these petitions what the history in the United States has been on the subject, and the motive
with which these words have been proposed. I think the people in Australia are as reverential as any people on
the face of this earth, so I will make no opposition to the insertion of seemly and suitable words, provided that it
is made perfectly clear in the substantive part of the Constitution that we are not conferring on the
Commonwealth a power to pass religious laws. I want to leave that as a reserved power to the state, as it is now.
Let the states have the power. I will not interfere with the individual states in the power they have, but I
want to make it clear that in inserting these religious words in the preamble of the Bill we are not by
inference giving a power to impose on the Federation of Australia any religious laws. I hope that I shall be
excused for having spoken on this matter. I felt that it was only fair that honorable members should know that
there is a damer in these words, if we are to look to the precedent of the United States. I will help honorable
members in putting in any suitable words provided that we have sufficient safeguards.
Mr. LYNE.-Will you explain, before you sit down, where the particular danger is?
which ought to be left to the states. The point is that we are not going to make the Commonwealth a kind
of social and religious power over us. We are going into a Federation for certain specific subjects. Each state
at present has the power to impose religious laws. I want to leave that power with the state; I will not
disturb that power; but I object to give to the Federation of Australia a tyrannous and over-riding power
over the whole of the people of Australia as to what day they shall observe for religious reasons, and what
day they shall not observe for that purpose. The state of Victoria will be able to pass any Sunday law it
likes under my scheme.
And
Mr. HIGGINS.-No; I think the honorable member will see that a recital in the preamble to the
Constitution is a very different thing from an oath which may be taken in a court of justice or anywhere
else.
Mr. DOUGLAS.-You will find that you can make an affirmation without referring to Almighty God.
Any person can make an affirmation who has no belief in Almighty God.
The CHAIRMAN.-I do not think the honorable member is in order in making a speech.
Mr. HIGGINS.-I thank the honorable member for being disorderly under the circumstances. I think
there is a good deal of force in what he says, but I also see this, that the taking of an oath in a court of
justice or on taking office is quite a different thing from having in a well thought-out preamble to a
Constitution any reference to religious belief.
Mr. WALKER.-It is prescribed in the schedule.
Mr. HIGGINS.-That may be, but a schedule is quite a different thing from a preamble.
And
Mr. DOUGLAS (Tasmania).-When this subject was broached in Adelaide, I took the opportunity of
stating that I could not see the utility of inserting these words in the preamble of the Commonwealth Bill,
and my opinion has not in anyway altered up to the present time. I should like to know what is the object
honorable members have in view in desiring the insertion of these words? Do these words convey to the
public mind any particular idea that their insertion in the preamble of this Bill would make us a religious
people? The words in question are "humbly relying on the blessing of Almighty God." Now, do not we all
rely upon the blessing of Almighty God in our daily transactions? Certainly. But do we set forth that fact
in all our letters and documents by which we communicate with one another? Certainly not. No doubt the
supporters of this amendment desire to make the public believe or fancy that they will become a religious
people if such words as these are put into the preamble of this Bill. Do we do this at the present time in our
ordinary legislation? Do not we all know that it is a mockery that the House of Commons at the present
time commences its sittings, day by day, by having prayers read in that assembly? The Speaker of the
House of Commons reads the Lord's Prayer before proceedings are commenced, but it has crown into
such a farce that nobody attends the House until the prayer is over. Do we want to introduce that system
here?
Mr. PEACOCK.-It is done here.
Mr. DOUGLAS.-I believe that there are still some legislative assemblies in Australia where they commence
the day's proceedings by reading the Lord's Prayer. It was originally done in Tasmania, but it was soon found out
to be a perfect piece of mockery, and abandoned.
Mr. ISAACS.-Do not you have any reference to the Supreme Being in the Governor's speech in Tasmania?
Mr. DOUGLAS.-We used to have the Lord's Prayer read in the Legislative Council, but it became a matter of
such indifference that the custom was given up.
Mr. HIGGINS.-No; it would only prevent the making of laws for a religious reason.
Dr. COCKBURN.-Who could determine the intention of the state? The amendment would simply prohibit the
enactment of these laws.
Mr. HIGGINS.-My desire is to prevent the Federal Parliament from dictating to the states in these matters.
Again;
I want to leave that power with the state; I will not disturb that power; but I object to give to the
Federation of Australia a tyrannous and over-riding power over the whole of the people of Australia as to
what day they shall observe for religious reasons, and what day they shall not observe for that purpose.
And
I feel that honorable members who value state rights reserved [start page 1736] to the states, who value the
preservation of the individuality of the states for state purposes, will agree with me that it is with the state we
ought to leave this power, and that we ought not to intrust it to the Commonwealth. For instance, our factory
laws are left to the state.
The latter one reflects how misconceived the 14-11-2006 High Court of Australia judgment was in
regard of Industrial Relations legislation by the Commonwealth of Australia.
Tax deductions for religious schools and other religious entities are then also prohibited!
It should be noted that the Framers of the Constitution did very much consider treaties, etc
but restricted it to those powers otherwise provided for in the constitution to the
Commonwealth, and no more.

QUOTE
867 I am quite unwilling to attribute to the founders the limited vision and foresight which the passage
quoted attributes to them. They were greatly concerned with international affairs, including, in
particular, regional affairs [1139] . Discourse about international affairs, agreements and treaties, albeit
predominantly about mutual resistance to aggression, throughout the 19th century was intense and
prolonged [1140] . Shifting alliances made by treaties and otherwise, and the need for international cooperation
and a body such as the League of Nations were not new ideas in 1919[1141] . The century before federation was
a century of many wars between both large and small belligerents. In 1900 Australia aspired to be a nation of
significance. The founders did not intend it to be tied to the apron strings of Britannia for ever. Otherwise
there would have been no need for an external affairs power at all, or at least one as expansive as the
power in terms is.
868 The Commonwealth also relies on the passages from Mason J that I have quoted for the submission
that implications may not be drawn from the "federal balance". I have rejected that submission. Much
more was drawn from less by this Court in Lange[1142] . These further points should be made. His Honour's
statement was made before Cole v Whitfield which approved recourse to the Convention Debates in the
passage that I have quoted elsewhere[1143] . Such recourse would have revealed to his Honour the founders'
concern about the matters which his Honour said they would not have foreseen.
END QUOTE
It should be noted that Section 51(v) indicates in particular that the Framers did consider the
future but held that it would be for the people to decide by way of S128 referendum if further
powers were to be given in their contemporary situations.
And the following statements from the Hansard records of the Constitution Convention Debates;
Again;
Mr. SYMON (South Australia).-
That is, for admission into this political Union, which is not a republic, which is not to be called a
dominion, kingdom, or empire, but is to be a Union by the name of "Commonwealth," and I do not
propose to interfere with that in the slightest degree.
Mr. BARTON.- I did not say that. I say that our real status is as subjects,
and that we are alike subjects of the British Crown .
Mr. SYMON.-
Dual citizenship exists, but it is not dual citizenship of persons, it is dual citizenship in each person. There may
be two men-Jones and Smith-in one state, both of whom are citizens of the state, but one only is a citizen of
the Commonwealth. That would not be the dual citizenship meant. What is meant is a dual citizenship in
Mr. Trenwith and myself. That is to say, I am a citizen of the state and I am also a citizen of the
Commonwealth; that is the dual citizenship.
And
Mr. SYMON.-
. As a citizen of a state I claim the right to be a citizen of the Commonwealth. I do not want to place in the
hands of the Commonwealth Parliament, however much I may be prepared to trust it, the right of
depriving me of citizenship.

See also for a greater set out; Chapter 006 The Constitution is a PERPETUAL LEASE?
See also for the following; Chapter 001 CREATION OF THE CONSTITUTION
**#** Take for example the issue of Mr. David Hicks in US prison detention;
Dr. QUICK.-
The Constitution empowers the Federal Parliament to deal with certain external affairs, among which would
probably be the righ t to negotiate for commercial treaties with foreign countries, in the same way as Canada has
negotiated for such treaties. These treaties could only confer rights and privileges upon the citizens of the
Commonwealth, because the Federal Government, in the exercise of its power, [start page 1753] could only act
for and on behalf of its citizens.
Therefore the Federal Government has a DUTY OF CARE to secure the release of Mr. David
Hicks. Mr. David Hicks right of a FAIR AND PROPER TRIAL should have been the same as any
American. But there is another twist to this. Because the Commonwealth of Australia, albeit
unconstitutionally, joined the so called COALITION OF THE WILLING then Mr. David Hicks
was as much a prisoner of the Commonwealth of Australia as that of the USA, in deed so was the
late president Saddam Hussein. Meaning, that both had a legal right to have the protection of the
Federal Government and as such the late President Saddam Hussein as not to be executed, in view
that the European Union Human rights Act does in fact apply also the Commonwealth of Australia,
just that politicians and lawyers don’t comprehend this. As for Mr. David Hicks, the treaty between
Cuba and the USA does not allow the holding of prisoners not involved with coaling or the navy
station! Further, the 1688 Bill of Rights, 1640 Habeas Corpus also does not permit the transport of
prisoners over the seas, and require the release of prisoners at the end of hostilities of the war itself.
As such I can foresee that the Person purporting to be the prime minister, the person purporting to
be the Minister of Defence and others in Government may just get sued in time to come. After all
while the Migration Act allows the Minister to determine to detain/deport a person, constitutionally
it has no legal force unless and until a State Court with a JUDICIAL DETERMINATION formally
orders this. As such the navy being involved in towing unseaworthy boats into international waters
also can be a crime on the high seas.
QUOTE http://www.australianpolitics.com
Constitutional Conventions
The Australian Constitution combines literal interpretation with convention. Whilst some sections are adhered
to literally, others operate by accepted practices, often built up over centuries.
A convention is not a law, but merely an accepted way of doing something.
For example, the Australian Constitution, in its original form, makes no mention of the Prime Minister, the Cabinet, or
political parties. These are amongst the most significent conventions.
Specifically:
 Governor-General
Section 2 of the Constitution says: "A Governor-General appointed by the Queen shall be Her Majesty's
representative in the Commonwealth..."
In practice, the Governor-General is chosen by the Prime Minister of the day, possibly in conjunction with
Cabinet. In the early years of the Federation, the Governor-General was appointed from Britain. In the early
1930s, Prime Minister James Scullin visited London in order to apply pressure on the British government to
allow the appointment of Sir Isaac Isaacs as Governor-General. Isaacs eventually became the first Australian to
hold the position. Since the 1960s, all Governors-General have been Australians.
 Parliamentary Sessions

Section 5 of the Constitution says: "The Governor-General may appoint such times for holding the sessions of
the Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue the
Parliament, and may in like manner dissolve the House of Representatives."
In practice, the government of the day decides when Parliament will sit. These are intensely political decisions
made by the Prime Minister and the most senior members of the government and its advisers.
 Terms of Parliament
Section 28 of the Constitution says: "Every House of Representatives shall continue for three years from the
first meeting of the House, and no longer, but may be soon dissolved by the Governor-General."
This section is interpreted literally in the sense that no House of Representatives may continue for longer than
three years. However, the earlier dissolution of the House is not decided by the Governor-General, but by the
Prime Minister of the day.
Officially, the Prime Minister calls upon the Governor-General to "request" a dissolution, although there are
historical incidents of Governors-General rejecting or querying this advice.
There were three occasions between 1901-10 when such requests were rejected by the Governor-General. In
1983, the Governor-General, Sir Ninian Stephen, sent the Prime Minister, Malcolm Fraser, away with
instructions to provide detailed argument in support of his request for a double dissolution of the Parliament.
 Executive Government Conventions
Chapter 2 of the Constitution (Sections 61-70) sets out how the Government of Australia shall operate. It
makes no mention of the Cabinet, political parties or the Prime Minister:
o Section 61 states: "The executive power of the Commonwealth is vested in the Queen and is
exercisable by the Governor-General as the Queen's representative, and extends to the
execution and maintenance of this Constitution, and of the laws of the Commonwealth."
In practice, it is the Cabinet, led by the Prime Minister, which performs this task.
o Section 62 states: "There shall be a Federal Executive Council to advise the Governor-
General in the government of the Commonwealth, and the members of the Council shall be
chosen and summoned by the Governor-General and sworn as Executive Councillors, and
shall hold office during his pleasure."
In practice, the Governor-General, acting on the advice of the leader of the majority party in the
House of Representatives, summons members of the majority party and swears them in as ministers.
The Executive Council operates in accordance with the Constitution, but the Governor-General
always acts on the advice of his ministers.
o Section 64 states: "The Governor-General may appoint officers to administer such

departments of State of the Commonwealth as the Governor-General in Council may
establish. Such officers shall hold office during the pleasure of the Governor-General. They
shall be members of the Federal Executive Council, and shall be the Queen's Ministers of
State for the Commonwealth."
In practice, the Prime Minister is the person who leads the party with a majority in the House of
Representatives. The ministers are chosen by the Prime Minister who advises the Governor-General
of the names and portfolios to be allocated to them.
It was this section of the Constitution that the Governor-General used to dismiss the Whitlam
Government in 1975. This is the only instance in Federal political history of the Governor-General
exercising the so-called Reserve Powers in this way.
o Section 68 states: "The command-in-chief of the naval and military forces of the
Commonwealth is vested in the Governor-General as the Queen's representative."

In practice, the Prime Minister and the Defence Minister are in charge of the armed services. It is
unlikely that the armed services would accept orders from the Governor-General if they were not also
Government orders.
 Appointment of High Court Justices
Section 72 states: "The Justices of the High Court and of the other courts created by the Parliament.. shall be
appointed by the Governor-General in Council."
In practice, judges are appointed by the Cabinet. The Governor-General simply rubberstamps the decision at a meeting
of the Executive Council. There is no known instance of the Governor-General attempting to influence these decisions.
END QUOTE http://www.australianpolitics.com
* Gary, you are still on about the OFFICE OF THE GUARDIAN?
**#** Answer;
INSPECTOR-RIKATI®, persistency will in the end pay off. I have no doubt that in time a
constitutional council will be created when they realise that they did it wrong for so long and the
consequences no longer can be avoided. Just read the enclosed correspondence.
Hansard 17-3-1898 Constitution Convention Debates

Mr. DEAKIN.-
In this Constitution, although much is written much remains unwritten
This is why we need an OFFICE OF THE GUARDIAN, a constitutional council, that advises the
Government, the People, the Parliament and the Courts as to constitutional powers and limitations.
Then this OFFICE OF THE GUARDIAN can expose what is embedded in the Constitution!
Take for example Prime Minister John Howard (Australia) bringing up some bold plan to spend
about 10 billion dollars on water management issues, that is provided the States hand him
legislative control over water.
* Well, isn’t that good?
**#** Answer;
Considering that the constitution already for over 100 years have given legislative powers to the
Commonwealth of Australia to determine “reasonable use” of water and even so Malcolm Turnbull
the new Minister for Water seems to claim that it has been over-allocated since the midst of the 20th
century, somehow nothing was ever done by the commonwealth of Australia to legislate for
“reasonable use”. So, now they embark upon seeking more legislative powers, and so strip the
States of their powers even so they cannot even manage the legislative powers they already have.
* What are the Premiers of the states stating?
**#** Answer;
Some seem to agree already, because it appears to me they see dollar signs rather then to
comprehend that constitutionally they have no powers to give away legislative powers of the State.
This is why they need an OFFICE OF THE GUARDIAN, in each and every State and federally,
so finally they can make some sense about constitutional powers and limitations already existing.
Take for example Premier Steve Bracks who seems to argue that as long as the Federal government
will operate as the States desire then he has no particular objection to refer legislative powers to the
commonwealth of Australia.

* What is wrong with that?
**#** Answer;
Well, once the Commonwealth of Australia has the legislative powers then it can do as it likes as
the States will have no further control. Somehow State Premiers have the view that they can take
back powers they referred to the Commonwealth of Australia, just that it isn’t that way at all. Once
referred to the Commonwealth of Australia then that is the end of it.
Mr. DEAKIN.-
Another difficulty of the sub-section is the question whether, even when a state has referred a matter to
the federal authority, and federal legislation takes place on it, it has any-and if any, what-power of
amending or repealing the law by which it referred the question? I should be inclined to think it had no
such power, but the question has been raised, and should be settled. I should say that, having appealed to
Caesar, it must be bound by the judgment of Caesar, and that it would not be possible for it afterwards to
revoke its reference.
Yet, despite this, States continue to refer powers with clauses that it is revocable.
* Why is that?
**#** Answer;
Because Premiers simply haven’t got a clue what is constitutionally appropriate and regardless if
they are lawyers or not, unlikely would ever have researched the Hansard debates to try to find it all
out.
Members of Parliament are elected by the electors not because of their constitutional abilities but
merely because they happen to be standing in an election, because they were some famous sport
star, etc. As such, their skill in constitutional issues is more then likely next to nothing.
Even those who are lawyers may never have practice constitutional issues.
Look at the issue of “Australian citizenship” which is a kind of citizenship you obtain when
becoming a “State citizen” and includes a persons political rights such as franchise, yet, the
Commonwealth of Australia declared it to be some Australian nationality.
* What is wrong with that?
**#** Answer;
Well consider the following;

Mr. BARTON.-Yes; and here we have a totally different position, because the actual right which a person
has as a British subject-the right of personal liberty and protection under the laws-is secured by being a citizen of
the States. It must be recollected that the ordinary rights of liberty and protection by the laws are not
among the subjects confided to the Commonwealth.
(And in regard of citizenship;)

Mr. BARTON.-
I took occasion to indicate that in creating a federal citizenship, and in defining the qualifications of that
federal citizenship, we were not in any way interfering with our 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 of a Commonwealth, but we would still be, subjects of the Queen.
And;
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."
And
Mr. BARTON.-
We are all alike subjects of the British Crown.
It must be understood that Edmund Barton was born in NSW, Australia, and later became Prime
Minister of Australia.
So, while the Framers of the Constitution specifically refused any legislative powers for the
Commonwealth of Australia to define/declare citizenship, the Commonwealth of Australia simply
nevertheless legislated in regard of citizenship and purported to make it all being different.
* What is the harm?
**#** Answer;
Well, for example, children born to aliens, who are constitutionally born within the realm of the
King/Queen and so are and remain “subjects of the British Crown” now are being deported as
STATELESS!
On 19 July 2006 I successful challenged the validity of the Australian Citizenship Act 1948 to
define/declare citizenship, and it was and remained UNCHALLENGED in a 5-year legal battle
with the lawyers of the Federal government, and my appeals succeeded. In fact I challenged
numerous other constitutional issues, such as the compulsory voting that is unconstitutional and
again I succeeded in it.
* So, why then does the Federal Government not rectify matters?
**#** Answer;
Because they have put themselves a law above the Constitution! The Federal government appoints
the judges to the High Court of Australia and so there is that bias. It is therefore extremely difficult
to have constitutional provisions and limitations enforced as the Federal Government and also the
States flaunt the Constitution as it pleases them. And this is why we need an OFFICE OF THE
GUARDIAN that will without political bias, state what is constitutionally applicable to anyone.
* Surely the judges can do that?
**#** Answer;
Look, I have researched many of the High Court of Australia decisions and many I found were an
absurdity. The judges themselves not even comprehending what is “Australian citizenship”. One
judge even abstained from handing down a judgment making known he didn’t know what was
constitutionally appropriate.
* What?
**#** Answer;
Yes, they appoint judges who may never have done any work in constitutional issues.
* But, isn’t the High Court of Australia primary issue to deal with constitutional issues?
**#** Answer;
Yes, but there appears to be no formal training in that respect.

The Framers of the Constitution referred to the High Court of Australia to be the Guardians of the
Constitution, fat chance, where they lack to comprehend even an issue such as Australian
citizenship and what it stands for.
If there was an OFFICE OF THE GUARDIAN then it would have the ability to present to judges
the complete relevant history of certain constitutional issues and even could challenge the
government or any State premier if any of them contemplated unconstitutional legislation.
* What is this making a difference to the man on the street?
**#** Answer;
Currently, the ordinary person on the street would need more then likely several hundreds of
thousands of dollars to try to challenge any unconstitutional conduct, and as such forget about that
ability. Hence, more then likely unless some rich company takes on the Government, the
Government gets away with any unconstitutional conduct, whereas if there was an OFFICE OF
THE GUARDIAN then it could take up the matter and we would still have enforcement of
constitutional powers and limitations without some poor devil being caused to pay a lot of legal cost
where his case was railroaded by the judges.
With premiers willing to hand over legislative powers disregarding any referendum for the people
to have their say, as is constitutionally required, it is going from bad to worse.
With an OFFICE OF THE GUARDIAN these and numerous other issues can be resolved without
having people for example being detained/deported unconstitutionally.
There is basically a total breakdown in DUE PROCESS OF LAW where some Minister or some
bureaucrat can have a person deported, regardless that person having been lawfully in the
Commonwealth of Australia but merely because they cannot bother to follow proper legal
procedures the Framers of the Constitution stipulated were to be followed.
The issue is we must protect the constitutional and other legal rights of any person, regardless of
their standing in society! With an OFFICE OF THE GUARDIAN we may achieve this better.
* Gary having done all this work and considering the wrongful appointment of the governor-
General who in turn is appointing Judges and also Members of parliament and considering that the
High Court of Australia judges all lack their constitutional “Australian citizenship” how would you
sum up then their judgment also in that regard about the WorkChoices legislation of 14 November
2006?
**#** An utter constitutional mess! And that is precisely what my case on appeals before the
County Court of Victoria was about, and I succeeded UNCHALLENGED on all constitutional
issues I raised, including those but not limited to those stated in the Section 78B NOTICE OF
CONSTITUTIONAL MATTERS, and as such the Court should attend to all this and seek to
address matters before making it a further legal soup!
COMMENT This document has exceeded my intentions as to volume by more then double but to
cut it down for this Chapter may not be right, hence I have left it in the manner it was compiled
other then to have reduced it with certain quotations of Chapters and instead refer to the Chapter as
such. Numerous other issues are at hand but have been left out (but are on the CD issue), as it would
too much increase the volume of this Chapter. However, it must be understood that this Chapter
must not be deemed to address all issues and relate to all relevant material but is merely an
indication that there is something drastically wrong how the High Court of Australia allowed, with I
view with a disregard of proper research relating all relevant matters, the Amendment Act regarding
WorkChoices legislation to be deemed constitutional valid. As per my 5 November 2005 post
(see page140) the Bill was not appropriately voted upon and therefore constitutionally invalid!
Upon this the High Court of Australia also should have declare the legislation ULTRA VIRES
(NULL AND VOID) , as the Framers of the Constitution made clear (and so embedded in the
Constitution) it could do so lacking proper process having been followed.

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Chapter 022A Failure of the case

* So your score is?

* Gee, that is a bit harsh, don’t you think?

Page 1 of Chapter 022A INSPECTOR-RIKATI® on IR WorkChoices legislation Page 1

Page 2 of Chapter 022A INSPECTOR-RIKATI® on IR WorkChoices legislation Page 2

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

However it omitted to use this clarification;

There is another issue that should not be overlooked.

Page 7 of Chapter 022A INSPECTOR-RIKATI® on IR WorkChoices legislation Page 7

The researches of counsel have been unable to find provisions using

Page 8 of Chapter 022A INSPECTOR-RIKATI® on IR WorkChoices legislation Page 8

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

[start page 1085]

Mr. SYMON: Suppose a child is deserted?

The Hon. E. BARTON: I move:

Mr Peter Hanks QC quoted of the judgment the following;

Page 10 of Chapter 022A INSPECTOR-RIKATI® on IR WorkChoices legislation Page 10

This related to Subsection 51(xxvi) as to race legislation.

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

Page 14 of Chapter 022A INSPECTOR-RIKATI® on IR WorkChoices legislation Page 14

Page 16 of Chapter 022A INSPECTOR-RIKATI® on IR WorkChoices legislation Page 16

* Can that be right?

Mr. GORDON (South Australia).-I beg to move-

Page 22 of Chapter 022A INSPECTOR-RIKATI® on IR WorkChoices legislation Page 22

[start page 692]

The amendment was withdrawn.

Mr. BARTON.-As a member of the Executive Council?

Mr. BARTON.-One improvement we want in this Constitution is the establishment of a Commonwealth

INSPECTOR-RIKATI® & There is no Government to go to war

Page 24 of Chapter 022A INSPECTOR-RIKATI® on IR WorkChoices legislation Page 24

However, at 4 Latham CJ wrongly argued:

68 Command of naval and military forces

Page 25 of Chapter 022A INSPECTOR-RIKATI® on IR WorkChoices legislation Page 25

Page 26 of Chapter 022A INSPECTOR-RIKATI® on IR WorkChoices legislation Page 26

Mr. HIGGINS.-I do not think there is an express prohibition.

[start page 1775]

Mr. WISE.-Clause 95 provides that preferences shall not be given.

Mr. HIGGINS.-That is what we want to do.

Mr. ISAACS.-They would have no jurisdiction.

Mr. WISE.-Yes, they would, if this is struck out.

Mr. ISAACS-Under what clause?

Mr. WISE.-Under the same clause as in America.

Mr. WISE.-We do not think them wrong in New South Wales.

Sir EDWARD BRADDON.-What harm would it do?

Mr. SYMON (South Australia).-I beg to move, as an amendment-

Mr. HIGGINS.-By which Parliament?

Page 30 of Chapter 022A INSPECTOR-RIKATI® on IR WorkChoices legislation Page 30

Mr. FRASER.-There is no necessity for it.

Mr. FRASER.-That is the only argument in its favour.

Mr. KINGSTON.-Except in regard to special races.

Page 31 of Chapter 022A INSPECTOR-RIKATI® on IR WorkChoices legislation Page 31

Ayes ... ... ... 22

Noes ... ... ... 19

Followed with the amendment;

Page 32 of Chapter 022A INSPECTOR-RIKATI® on IR WorkChoices legislation Page 32

Yet, then goes into referring to it all, just not disclosing;

Page 35 of Chapter 022A INSPECTOR-RIKATI® on IR WorkChoices legislation Page 35

The breadwinner issue (On a lighter note!);

Mr. MCMILLAN.-It would be expensive.

Mr. REID.-It is not meant for humour.

Mr. MCMILLAN.-Would it not be better to equalize matters by the importation of females?

Page 36 of Chapter 022A INSPECTOR-RIKATI® on IR WorkChoices legislation Page 36

Mr. GLYNN.-That affects production.

# Off course, just what is the confusion about?