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Privy Council judgement conflicts with Commonwealth of Australia Constitution Act 1900.
From

Jim

To ----- Original Message ----From: Mr Gerrit H. Schorel-Hlavka O.W.B. To: David Sent: Wednesday, June 19, 2013 12:09 AM Subject: my comment -Re: Please review if you have time. David, I read the Privy Council judgment and when one consider that it held the Queensland Parliament could appoint a judge for 7 years if it desired to do so versus Kable where the High Court of Australia held that the States are bound by creating Chapter III courts and cannot appoint temporary judges then clearly the High Court of Australia is not following the Privy Council. And this is also because the Kable case related to the Federal constitution whereas the parties before the Privy Council didn't argue this issue. Hansard 20-4-1897 Constitution Convention Debates QUOTE Mr. BARTON: I do not think it is a good thing under any circumstances that a judge under a Federal Constitution, at any rate, should have anything to hope for from Parliament or Government. Mr. KINGSTON: Hear, hear. Mr. BARTON: Where you have a sovereign Parliament, and the judge is merely the interpreter of the laws as they arise, and not the guardian of a Constitution in the same sense as a federal judge is, the same circumstances remain in part; but where you will have a tribunal constantly charged with the maintenance of the Constitution against the inroads which may be attempted to be made upon it by Parliament, then it is essential that no judge shall have any temptation to act upon an unexpected weakness-for we do not know exactly what they are when appointed-which may result, whether consciously or not, in biasing his decisions in favor of movements made by the Parliament which might be dangerous to the Constitution itself. END QUOTE Hansard 1-3-1898 Constitution Convention Debates QUOTE Sir JOHN DOWNER.-We spend time enough in discussing things here, and when every one is agreed that this clause is not to be adopted in the form in which it is printed, but is only to be a power of the Parliament, it is not worth while to discuss the question of whether it is [start page 1665] absolutely necessary to put in the words. Where there is a wide difference of opinion, it would be safer to do it. I agree with Mr. Barton that there is no power, because sub-section (37) of clause 52 readsAny matters necessary for or incidental to the carrying into execution of the foregoing powers, or of any other powers vested by this Constitution in the Parliament or Executive Government of the Commonwealth, or in any department or officer thereof. I venture to say that these are not necessary or incidental to the execution of any powers. The Commonwealth will come into existence under this Constitution plus English law, one of

Chapter 000X Page 1 INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, by fax 001161-3-94577209 or E-mail INSPECTOR-RIKATI@schorel-hlavka.com See also www.schorel-hlavka.com

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whose principles is that the Queen can do no wrong. That is the foundation on which the Constitution is established. END QUOTE HANSARD 17-2-1898 Constitution Convention Debates QUOTE Mr. OCONNOR.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. END QUOTE HANSARD 9-2-1898 Constitution Convention Debates QUOTE Mr. HIGGINS.-No, because the Constitution is not passed by the Parliament. END QUOTE HANSARD 1-3-1898 Constitution Convention Debates QUOTE Mr. GORDON.- The court may say-"It is a good law, but as it technically infringes on the Constitution we will have to wipe it out." END QUOTE HANSARD 10-03-1891 Constitution Convention Debates QUOTE Dr. COCKBURN: All our experience hitherto has been under the condition of parliamentary sovereignty. Parliament has been the supreme body. But when we embark on federation we throw parliamentary sovereignty overboard. Parliament is no longer supreme. Our parliaments at present are not only legislative, but constituent bodies. They have not only the power of legislation, but the power of amending their constitutions. That must disappear at once on the abolition of parliamentary sovereignty. No parliament under a federation can be a constituent body; it will cease to have the power of changing its constitution at its own will. Again, instead of parliament being supreme, the parliaments of a federation are coordinate bodies-the main power is split up, instead of being vested in one body. More than all that, there is this difference: When parliamentary sovereignty is dispensed with, instead of there being a high court of parliament, you bring into existence a powerful judiciary which towers above all powers, legislative and executive, and which is the sole arbiter and interpreter of the constitution. END QUOTE Hansard 15-9-1897 Constitution Convention Debates QUOTE The Hon. A. DEAKIN: I say the great bulk of them are of that character, and am open to refutation if I am wrong, I should say that the whole of the thirty-seven subjects, but, indisputably, the great bulk of them, are subjects on which no question of state rights and state interests could arise except by the merest accident. It is, as the right hon. gentleman admitted, a grave defect in our constitution if we permit these questions to be left for all time to be determined in a purely states house, or by a state referendum, when those questions are not state questions-when they ought to be decided, not on state lines, but on national lines, and by a national referendum. END QUOTE Hansard 20-4-1897 Constitution Convention Debates QUOTE Mr. BARTON: I do not think it is a good thing under any circumstances that a judge under a Federal Constitution, at any rate, should have anything to hope for from Parliament or Government. Mr. KINGSTON: Hear, hear.
Chapter 000X Page 2 INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, by fax 001161-3-94577209 or E-mail INSPECTOR-RIKATI@schorel-hlavka.com See also www.schorel-hlavka.com

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Mr. BARTON: Where you have a sovereign Parliament, and the judge is merely the interpreter of the laws as they arise, and not the guardian of a Constitution in the same sense as a federal judge is, the same circumstances remain in part; but where you will have a tribunal constantly charged with the maintenance of the Constitution against the inroads which may be attempted to be made upon it by Parliament, then it is essential that no judge shall have any temptation to act upon an unexpected weakness-for we do not know exactly what they are when appointed-which may result, whether consciously or not, in biasing his decisions in favor of movements made by the Parliament which might be dangerous to the Constitution itself. END QUOTE The latter is clearly relied upon in the Kable case. You therefore have to consider if the federal constitution only applies to the juduiciary of a state and not otherwise or if in fact the states created within s106 therefore are subject to the federal pact. Hansard 17-3-1898 Constitution Convention Debates QUOTE Sir EDWARD BRADDON.When we consider how vast the importance is that every word of the Constitution should be correct, that every clause should fit into every other clause; when we consider the great amount of time, trouble, and expense it would take to make any alteration, and that, if we have not made our intentions clear, we shall undoubtedly have laid the foundation of lawsuits of a most extensive nature, which will harass the people of United Australia and create dissatisfaction with our work, it must be evident that too much care has not been exercised. END QUOTE Hansard 8-2-1898 Constitution Convention Debates QUOTE Mr. OCONNOR (New South Wales).-The honorable and learned member (Mr. Isaacs) is I think correct in the history of this clause that he has given, and this is [start page 672] one of those instances which should make us very careful of following too slavishly the provisions of the United States Constitution, or any other Constitution. No doubt in putting together the draft of this Bill, those who were responsible for doing so used the material they found in every Constitution before it, and probably they felt that they would be incurring a great deal of responsibility in leaving out provisions which might be in the least degree applicable. But it is for us to consider, looking at the history and reasons for these provisions in the Constitution of the United States, whether they are in any way applicable; and I quite agree with my honorable and learned friend (Mr. Carruthers) that we should be very careful of every word that we put in this Constitution, and that we should have no word in it which we do not see some reason for. Because there can be no question that in time to come, when this Constitution has to be interpreted, every word will be weighed and an interpretation given to it; and by the use now of what I may describe as idle words which we have no use for, we may be giving a direction to the Constitution which none of us now contemplate. Therefore, it is incumbent upon us to see that there is some reason for every clause and every word that goes into this Constitution. END QUOTE Hansard 2-3-1898 Constitution Convention Debates QUOTE Mr. BARTON. 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."
END QUOTE Chapter 000X Page 3 INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, by fax 001161-3-94577209 or E-mail INSPECTOR-RIKATI@schorel-hlavka.com See also www.schorel-hlavka.com

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Therefore, I view that the legal principles embedded in the (federal) constitution applies to the states (consider also s109) and the Privy council simply by the limited scope that was argued before it failed to consider the fact that the original Queensland constitution no,longer was applicable since federation but had to be considered "subject to the Commonwealth of Australia Constitution Act 1900) UK" The Privy Council stated McCawley v The King [1920] UKPCHCA 1; (1920) 28 CLR 106 (8 March 1920) QUOTE It would be almost impossible to use wider or less restrictive language. The Colony may make laws for the peace, welfare and good government of the Colony " in all cases whatsoever." END QUOTE Well, clearly this is not correct since federation because of the legislative powers that were transferred to the Commonwealth of Australia. If the Privy Council was correct then s109 could not be enforced. As always, you need to consider what was submitted to the court and its narrow interpretation to what was before the court. When I appeared before the County Court of Victoria on 19 July 2006 it had about 50 constitutional issues before it. I didn't so to say go over one night ice. If one were to argue now the case that was before the Privy Council then its likely judgment would be that the 7 year tenure was ultra vires because it denied an impartial court (Kable). The Privy Council ought in my view have made clear that colonial constitutions continued subject to the Commonwealth of Australia Constitution Act 1900 (UK), and so its embedded legal principles. The privy council argued what the intentions was of the framers of the colonial constitution, and totally overlooked that the colonies (through their electors) voted to be subject to the federal constitution, and therefore the colonial constitutions were rebirthed as State constitutions, where now the state legislature (Parliaments) no longer could be sovereign Parliaments but were constitutional Parliaments, because the States were created by the Commonwealth of Australia Constitution Act 1900 (UK) and as such no longer were colonies in their old format as sovereign colonial parliaments. It should be understood that States are "sovereign States" as much as the Commonwealth is a "sovereign State" (as a federation) but this doesn't mean they have "sovereign parliaments". The Commonwealth (so the territories) and the States have their sovereign sphere in their own legislative powers, and by this their territories under their control. Again consider: QUOTE It would be almost impossible to use wider or less restrictive language. The Colony may make laws for the peace, welfare and good government of the Colony " in all cases whatsoever." END QUOTE Well, ask yourself can the state have their own armed forces? Clearly not because the (federal) constitution doesn't permit this. therefore, the State do not have "in all cases whatsoever." legislative powers as the Privy Council wrongly purported. The is a lot more to this but I view for the moment it is a insight that it would be wrong to draw a conclusion from this judgment of the Privy Council that states have "sovereign Parliaments", and can amend their own constitutional as some "Dogs Act".
Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. ISAACS.We want a people's Constitution, not a lawyers' Constitution. Chapter 000X Page 4 INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, by fax 001161-3-94577209 or E-mail INSPECTOR-RIKATI@schorel-hlavka.com See also www.schorel-hlavka.com

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END QUOTE Hansard 17-3-1898 Constitution Convention Debates QUOTE 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. END QUOTE Hansard 8-3-1898 Constitution Convention Debates QUOTE Sir JOHN DOWNER.-Now it is coming out. The Constitution is made for the people and the states on terms that are just to both. END QUOTE

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Therefore, if the State constitution were merely some act of Parliament then it no longer can be just between the people and the state. HANSARD18-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. ISAACS.The right of a citizen of this great country, protected by the implied guarantees of its Constitution, END QUOTE All the guarantees of the Commonwealth of Australia Constitution Act 1900 (UK) would no longer exist, because the states could change them as if there was a dogs Act. Note: If you find any typing and/or spelling errors then it means you read my writings, just now you need to consider it appropriately! Gerrit Constitutionalist & Consultant MAY JUSTICE ALWAYS PREVAIL Mr. G. H. Schorel-Hlavka O.W.B., GUARDIAN (OFFICE-OF-THE-GUARDIAN) 107 Graham Road, Viewbank, 3084, Victoria, Australia Ph (International) 61394577209 Email; inspector_rikati@yahoo.com.au Do note, that emails forwarded to my other email address(es) without my prior permission will be deleted immediately! From: David <Davidkilife@gmx.com> To: David <Davidkilife@gmx.com> Sent: Tuesday, 18 June 2013 1:43 PM Subject: Please review if you have time. Hello. Gerry. Please forward this to Brian. When people get time, would people like to read the Privy Council case below which is only 10 pages? Mykel Ruth has this Privy Council case listed on his Mikiverse website. The previous High court case is 33 pages in length. I agree partially with the Privy Council, but I think the Privy Council has erred by failing to properly refer to the Com Constitution and what they state on the bottom of page 8 and top of page 9 about no need to go into the history and construction of the Industrial Arbitration Act 1916 QLD. I certainly agree with Chief Justice Griffiths as all Constitutions from Com Const must adhere to Section 106 halfway down on page 3. The Privy Council appeal case that the Privy Council do not consider the Commonwealth Constitution, but consider the Colonial Laws Validity Act 1865 and the QLD Constitution 1867 to appoint Judges of the Supreme Court namely that the Colonies were sovereign but not to override law of England. I agree with whomever from Melb Uni who analysed this that the Privy Council infer that due to the Colony Parliaments being sovereign this perpetuated with the State Parliaments being sovereign to some extent, other than the King or Queen of England. McCawley v The King [1920] UKPCHCA 1; (1920) 28 CLR 106 (8 March 1920) Privy Council Appeal from High Court. McCawley v R [1918] HCA 55; (1918) 26 CLR 9 (27 September 1918) High Court decision. Melb Uni review as stated in a google search of the case. State - Guides - LibGuides via the link. unimelb.libguides.com/content.php?pid=179196&sid=1507477 McCawley v The King [1920] AC 691, (1920) 28 CLR 106, [1920] UKPCHCA 1 - this case concluded that the Parliament is legislatively sovereign. Attorney-General (NSW) v Trethowan (1931) 44 CLR 394, [1931] HCA 3 - this case revolved around the Premier of New South Wales, Jack Lang, and his attempt to abolish the New South
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Wales Legislative Council. It was found that the Legislative Council could not be abolished by mere legislation, but rather there is an entrenched requirement for a referendum to precede any such abolition. Correct view from what I have read. Kable v The Director of Public Prosecutions for New South Wales (1996) 189 CLR 51, [1996] HCA 24 - this case is about Chapter III rights in the Constitution and the scope of power of state courts vested with federal jurisdiction. It restricts the power of State Parliaments to control the activities of State courts. Powell v Apollo Candle (1885) 10 App Cas 282 - this case dealt with the powers of colonial legislatures. It decided that colonial legislatures, though subordinate to the Imperial Parliament, were not mere delegates and were empowered to delegate legislative power to the executive. McCawley v The King [1920] AC 691, (1920) 28 CLR 106, [1920] UKPCHCA 1 - this case concluded that the Parliament is legislatively sovereign. This essentially has been the basis for all subsequent State constitutional law in Australia. Clayton v Heffron (1960) 105 CLR 214, [1960] HCA 92 - this case revolved around whether there was a requirement under s. 5B of the Constitution Act, 1902 (N.S.W.) that a Bill (to abolish the Legislative Council) twice passed by the Legislative Assembly and rejected by the Legislative Council required a free conference between the houses first before being put to a referendum. It was held that it did not. Egan v Willis (1998) 195 CLR 424, [1998] HCA 71 - this case confirmed that the Parliament has the power to call the Government into account. This is the principle of responsible government. The Government is answerable to the demands of Parliament. This principle was confirmed in the subsequent case of Egan v Chadwick (1999) 46 NSWLR 563, [1999] NSWCA 176 Arena v Nader (1997) 42 NSWLR 427, [1997] NSWSC 468, (1997) 71 ALJR 1604 - this case revolved around the validity of legislation providing for the waiver of privilege by a House of the New South Wales Parliament. Both the Supreme Court and the High Court found the legislation to be valid.

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