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WITHOUT PREJUDICE

.
Ross J, President VCAT 19-7-2010
5Victorian Civil & Administrative Tribunal
vcat@vcat.vic.gov.au
.

Mr G. H. Schorel-Hlavka, MAY JUSTICE ALWAYS PREVAIL®


10 Email: mayjusticealwaysprevail@schorel-hlavka.com
Northside Solicitors Pty Ltd mark@northsidesolicitors.com.au
.
Ref:– CONSTITUTIONAL ISSUES - ABORIGINALS - etc
Sir,
15.
I will use an example relating to yourself and what I view failure to appropriately manage
VCAT. In the Sunday Herald Sun 18 July 2010 at page 10 the article “Race to decide jobs” by
MITCHELL TOY and ELLEN WHINNETT is published which related to VCAT having
approved 1128 guaranteed public servants jobs exclusively for indigenous applicants by this
20meaning Aboriginals. Where allegedly VCAT Deputy President Cate McKenzie found
indigenous people were at a clear disadvantage compared with other Victorians and should be
assisted with employment. “There is possible race discrimination involved here,” she said in
her findings. In my view this reflects back that you as president of VCAT (Victorian Civil and
Administrative Tribunal) fail to understand and/or comprehend the function of VCAT and the
25limits within which it can operate, etc. As you appear to me to lack any proper understanding as
to matters, and so despite that you are a County Court of Victoria judge and I am a
CONSTITUTIONALIST I will therefore in limited format set out some matters which
hopefully may give you a better understanding about issues involved and legal powers, etc.
.
30The States are created within s.106 of The Commonwealth of Australia Constitution Act 1900
(UK) from the former colonies/province and section 106 provided “subject to this constitution”
QUOTE
106 Saving of Constitutions
The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue
35 as at the establishment of the Commonwealth, or as at the admission or establishment of the
State, as the case may be, until altered in accordance with the Constitution of the State.
END QUOTE
.
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=
40%22thi+act+and+all+law+made+by+the+parliament%22#fn50
QUOTE
Constitutional interpretation
The starting point for a principled interpretation of the Constitution is the search for the
intention of its makers[51].
45END QUOTE

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What this means is that the Constitution must be interpreted as to the intentions of the Framers of
the Constitution at time of Federation and as to the successful referendums held since! Therefore,
the 1967 referendum to amend s.51(xxvi) is to be considered also.
.
5QUOTE as it was since federation until (CON-JOB) 1967 referendum
(xxvi) the people of any race, other than the aboriginal race in any
State, for whom it is deemed necessary to make special laws;
END QUOTE
.
10QUOTE as it is since the 1967 successful (CON-JOB) referendum
(xxvi) the people of any race for whom it is deemed necessary to make special laws;
END QUOTE
.
As to employment the Framers of the Constitution had this to say:
15HANSARD 17-4-1897 Constitution Convention
QUOTE Mr. DEAKIN:
They both desire to retain for their Several States for all time the privilege of
controlling industrial disputes within their own borders.
END QUOTE
20.
HANSARD 27-1-1898 Constitution Convention Debates
QUOTE Sir JOHN DOWNER.-
The people of the various states make their own contracts amongst themselves, and if in
course of their contractual relations disagreements arise, and the state chooses to
25 legislate in respect of the subject-matter of them, it can do so.
END QUOTE
.
Hansard 27-1-1898 Constitution Convention Debates
QUOTE
30 Mr. SYMON.-Why should you interfere with the laws in the different colonies
affecting the relations of masters and servants, which are purely a matter of domestic
legislation? Why should you hand over that purely state function to the federal
authority?
END QUOTE
35.
HANSARD 27-1-1898 Constitution Convention Debates
QUOTE Mr. SYMON.-
The relations between the parties are determined by the contract in the place where it
occurs.
40END QUOTE
.
HANSARD 27-1-1898 Constitution Convention Debates
QUOTE Sir EDWARD BRADDON (Tasmania).-
We have heard to-day something about the fixing of a rate of wage by the federal
45 authority. That would be an absolute impossibility in the different states.
END QUOTE
.
HANSARD 27-1-1898 Constitution Convention Debates
QUOTE
50 Mr. BARTON: If they arise in a particular State they must be determined by the
laws of the place where the contract was made.
END QUOTE
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.
HANSARD 27-1-1898 Constitution Convention Debates
QUOTE
Mr. BARTON.-We do not propose to hand over contracts and civil rights to the
5 Federation, and they are intimately allied to this question.
END QUOTE
.
Hansard 20-4-1897 Constitution Convention Debates
QUOTE
10 Dr. COCKBURN: I have raised this point at every opportunity. I do not wish to take up
the time of the Convention, but I certainly shall move-an amendment, because the clause is
not in accordance with the general provisions of Federation. The States composing the
Federation should have full power to deal with local affairs. Essentially, all external
relations are taken out of their jurisdiction. I do think they ought to have the power
15 themselves to say what the Constitution under which they live shall be.
END QUOTE
.
Hansard 3-3-1898 Constitution Convention Debates
QUOTE
20 Mr. SYMON.-Of course, the absolute control by a state of everything within its own
borders is retained by this Constitution, except in respect to such matters as are
expressly handed over to the Commonwealth.
END QUOTE
It must therefore be very clear that when it comes to employment contracts and industrial
25relations matters governing those workers then it is a State issue bar for certain professions such
as waterside workers as the Framers of the Constitution held that they would fall under Federal
legislative powers. However the Framers of the Constitution also stated;
.
HANSARD 31-1-1898 Constitution Convention Debates
30QUOTE
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:
END QUOTE
.
35HANSARD 19-4-1897 Constitution Convention
QUOTE Mr. CARRUTHERS:
Mr. Barton first of all recites Dicey to show what occurs under the unwritten
Constitution of England. But here we are framing a written Constitution. When
once that Constitution is framed we cannot get behind it.
40END QUOTE
.
Hansard 8-2-1898 Constitution Convention Debates
QUOTE Mr. BARTON.-
Under a Constitution like this, the withholding of a power from the
45 Commonwealth is a prohibition against the exercise of such a power.
END QUOTE
.
Hansard 2-3-1898 Constitution Convention Debates
QUOTE
50 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

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over us.
END QUOTE
.
HANSARD 1-3-1898 Constitution Convention Debates
5QUOTE 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
.
10HANSARD 1-3-1898 Constitution Convention Debates
QUOTE Mr. BARTON.-
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.
15END QUOTE
.
Hansard 16-2-1898 Constitution Convention Debates
QUOTE
start page 1020] I think that we ought to be satisfied on these points, and satisfied that
20 if we leave the clause as it now stands there will, at any rate, be some proviso inserted
which will safeguard the states in the carrying out of any of their state laws over
which the states are to be supreme even under federation.
END QUOTE
.
25Hansard 8-3-1898 Constitution Convention Debates
QUOTE
Mr. ISAACS.-The court would not consider whether it was an oversight or not.
They would take the law and ask whether it complied with the Constitution. If it did
not, they would say that it was invalid. They would not go into the question of what was
30 in the minds of the Members of Parliament when the law was passed. That would be a
political question which it would be impossible for the court to determine.
END QUOTE
.
Hansard 8-3-1898 Constitution Convention Debates
35QUOTE
Mr. GLYNN.-I think they would, because it is fixed in the Constitution. There is no
special court, but the general courts would undoubtedly protect the states. What Mr. Isaacs
seeks to do is to prevent the question of ultra vires arising after a law has been passed.
[start page 2004]
40 Mr. ISAACS.-No. If it is ultra vires of the Constitution it would, of course, be
invalid.
END QUOTE
.
Hansard 17-2-1898 Constitution Convention Debates
45QUOTE
Mr. ISAACS.-I am not prepared to answer that question, but when we look at clause 52
we find these governing words on the very forefront of that clause-

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That Parliament shall, subject to the provisions of this Constitution, have full power
and authority to make laws for the peace, order, and good government of the
Commonwealth.
We see there that the Commonwealth is named as distinguished from the states. We
5 have our Constitution framed in this way with a Senate to guard what? The interests of the
states, so that the Commonwealth shall not intrude one inch into what is retained as
the executive rights and jurisdiction of the states.
END QUOTE
.
10HANSARD 1-3-1898 Constitution Convention Debates
QUOTE
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
15 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.
20END QUOTE
.
HANSARD 8-2-1898 Constitution Convention Debates
QUOTE
Mr. HIGGINS.-I did not say that it took place under this clause, and the honorable
25 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.
END QUOTE
.
30HANSARD 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
35 to it.
END QUOTE
.
HANSARD 1-3-1898 Constitution Convention Debates
QUOTE
40 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 1-3-1898 Constitution Convention Debates
45QUOTE
Mr. BARTON.- 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.
END QUOTE
50.
HANSARD 9-2-1898 Constitution Convention Debates
QUOTE
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Mr. HIGGINS.-No, because the Constitution is not passed by the Parliament.
END QUOTE
.
Hansard 2-3-1898 Constitution Convention Debates
5QUOTE
Mr. OCONNOR.-Directly it is exercised it becomes an exclusive power, and there is
no doubt that it will be exercised. By putting into the Constitution words prohibiting the
Commonwealth Parliament from making certain specified laws you create the implication
that the Parliament has power to deal in other respects with religious observances.
10END QUOTE
It therefore must be clear that the moment the Commonwealth of Australia commenced to
legislate as to Aboriginals then the States/Territories had to retire from this. Hence the so called
Northern Territory Intervention Act is also unconstitutional because it cannot be an act within
s.122 as the Territory (quasi State) has no legislative powers as to Aboriginals and the
15commonwealth within the provisions of s.51(xxvi) can only legislate special laws for all people
of a race and not just for some people. It means that any legislation and/or regulation by the State
of Victoria since 1967 regarding the Aboriginal race is unconstitutional
.
Hansard 17-3-1898 Constitution Convention Debates
20QUOTE 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
25 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
30 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
35 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
40 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
45 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
50 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
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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
5 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
10 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
15Therefore the State of Victoria is permitted to legislate within its local environment bar from
interfering into Commonwealth legislative powers.
.
Hansard 2-3-1898 Constitution Convention Debates
QUOTE
20 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.
25 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.
30 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.
END QUOTE
35As was shown s.41 was preserving Aboriginals their rights to vote in Federal elections once they
had obtained Colonial/State franchise but the unconstitutional 1908 “white only” legislation to
vote was wrongly handled and lead to the deceptive 1967 (CON-JOB) referendum regarding
s.51(xxvi). The Framers of the Constitution held that the Commonwealth should place
Aboriginals (native Australians) on the same footing as other Australians and hence s.51(xxvi) in
40its original format prevented the Commonwealth of Australia to discriminate against Aboriginals
as a “inferior coloured race” but when the constitution was amended in 1967 , even so I view the
electors were sucked into a con-job referendum, nevertheless the amendment then delegated
Aboriginals as being an “inferior coloured race” as on the same footing as any other “inferior
coloured race” that now could be discriminated against not being worthy of full membership of
45citizenship, etc as the Commonwealth from time to time may legislate as to any coloured race.
While as a private person I oppose any racial discrimination as a CONSTITUTIONALIST this
however is not relevant as I am bound by what the constitution provides for and it’s embedded
legal principles.
.
50Hansard 3-3-1898 Constitution Convention Debates
QUOTE
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Sir JOHN FORREST.-What is a citizen? A British subject?
Mr. WISE.-I presume so.
Sir JOHN FORREST.-They could not take away the rights of British subjects.
Mr. WISE.-I do not think so. I beg to move- That the words "each state" be omitted, with
5 the view of inserting the words "the Commonwealth."
I apprehend the Commonwealth must have complete power to grant or refuse citizenship to
any citizen within its borders. I think my answer to Sir John Forrest was given a little too
hastily when I said that every citizen of the British Empire must be a citizen of the
Commonwealth. The Commonwealth will have power to determine who is a citizen. I
10 do not think Dr. Quick's amendment is necessary. If we do not put in a definition of
citizenship every state will have inherent power to decide who is a citizen. That was the
decision of the Privy Council in Ah Toy's case.
Sir JOHN FORREST.-He was an alien.
Mr. WISE.-The Privy Council decided that the Executive of any colony had an
15 inherent right to determine who should have the rights of citizenship within its
borders.
Mr. KINGSTON.-That it had the right of keeping him out.
.
Mr. BARTON.-No, but the definition of "citizen" as a natural-born or naturalized subject
20 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.
END QUOTE
25As such since the 1967 (CON-JOB) referendum constitutionally Aboriginals no longer are
amidst other Australians as equals but are now placed as an inferior coloured race not worthy to
have any franchise rights as to vote, etc.
.
HANSARD 2-3-1898 Constitution Convention Debates
30QUOTE
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.
END QUOTE
.
35HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
Mr. BARTON.- We have simply said that the guarantee of the liberalism of this
Constitution is responsible government, and that we decline to impair or to infect in any
way that guarantee.
40END QUOTE
HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
Mr. BARTON.-this Constitution is to be worked under a system of responsible
45 government
END QUOTE
.
HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
50 Mr. BARTON.- 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
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embodies, and the details of enactment by which those principles are enforced, will all
have been the work of Australians.
END QUOTE
.
5HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
Mr. BARTON.- 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
10 people.
END QUOTE
.
HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
15 Mr. DEAKIN.- In this Constitution, although much is written much remains
unwritten,
END QUOTE
.
HANSARD 17-3-1898 Constitution Convention Debates
20QUOTE Mr. DEAKIN.-
What a charter of liberty is embraced within this Bill-of political liberty and religious
liberty-the liberty and the means to achieve all to which men in these days can
reasonably aspire. A charter of liberty is enshrined in this Constitution, which is also
a charter of peace-of peace, order, and good government for the whole of the peoples
25 whom it will embrace and unite.
END QUOTE
.
HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
30 Mr. SYMON (South Australia).- 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
35 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.
END QUOTE
.
HANSARD 17-3-1898 Constitution Convention Debates
40QUOTE
Mr. BARTON.- 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
45 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
50 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,
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under any pretext of constitutional action, the Commonwealth from dominating the
states, or the states from usurping the sphere of the Commonwealth.
END QUOTE
.
5HANSARD 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
10 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,
15 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
20 sole arbiter and interpreter of the constitution.
END QUOTE
.
Hansard 15-9-1897 Constitution Convention Debates
QUOTE
25 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
30 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
.
35Hansard 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.
40 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
45 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.
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END QUOTE
.
On basis of the above stated it should be clear that any State legislation regarding the Aboriginal
race is and remains to be unconstitutional and as such VCAT cannot enforce or otherwise make
5rulings as to Aboriginal race matters, including employment issues because the Framers of the
Constitution specifically held that the Commonwealth of Australia should have the powers to
limit or otherwise restrain the employment opportunities of an “inferior coloured race”.
Hence, for the State of Victoria, and any courts/tribunals to be able to legislate in regard of
Aboriginals then first the 1967 amendment as to s.51(xxvi) has to be reversed and the
10Commonwealth would have to get rid of any existing laws as to Aboriginals as the truth is that as
long as there remains to be Commonwealth special laws as to Aboriginals then it remains
superior over any State/Territorial laws.
.
In my view as a judge of the County Court of Victoria and as the president of VCAT you should
15be well aware of these matters as you cannot have to be in a position where you lack the
knowledge and competence of what is applicable in a constitutional manner and by this has
VCAT making decisions which are ULTRA VIRES and have no LEGAL FORCE!
.
Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann;
20Spi [1999] HCA 27 (17 June 1999)
QUOTE
For constitutional purposes, they are a nullity. No doctrine of res judicata or issue
estoppel can prevail against the Constitution. Mr Gould is entitled to disregard the
orders made in Gould v Brown. No doubt, as Latham CJ said of invalid legislation, "he
25 will feel safer if he has a decision of a court in his favour". That is because those relying
on the earlier decision may seek to enforce it against Mr Gould.
END QUOTE
Hence, VCAT has no constitutional powers to allow for any exemptions as to Aboriginal
employment, etc, because it would to disregard the RULE OF LAW and surely VCAT cannot
30do this and defy the constitution? Remember the above quotation?
.
HANSARD 31-1-1898 Constitution Convention Debates
QUOTE
Mr. SOLOMON.- We shall not only look to the Federal Judiciary for the protection
35 of our interests, but also for the just interpretation of the Constitution:
END QUOTE
.
Neither do I view it serves VCAT to issue absolute ridiculous and nonsense of orders such as the
Aboriginal issues where it can avoid this as after all it undermines by this its own credibility and
40standing. Who is an Aboriginal is not particularly to be known anyhow because there are
Aboriginals who never lived in Australia because the Framers of the Constitution acknowledged
that there were Aboriginals residing as a race in Asia. Further, a “native Australian” is so being
born in Australia and not merely because of colour of skin. Some races are intermixed and then
by what standard is a person to be considered to be an Aboriginal or not? As the Supreme Court
45of Victorias one made clear, overturning a conviction of a person deemed to be an Aboriginal,
there was no evidence that the accused was an Aboriginal and the mere fact that he looks like an
Aboriginal doesn’t excuse the lack of evidence to prove it. And any person born within the
landmass of Australia is a “native Australian” unless excluded by International Law governing
children of diplomates, etc). Aboriginals with blond hair and blue eyes were recorded being
50descendants of the Dutch and existing before Captain Cooke declared New Holland to be under
British law, and as such so to say anyone guess who is an “Aboriginal” or not as no DNA testing

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can apparently either prove race. So, did VCAT then give standards how to determine who is an
Aboriginal, besides the fact it has no power to do so?
By the ruling of VCAT we might get Aboriginals from other countries come in and be selected
for jobs specifically denied to competent Australians, surely this kind of nonsense cannot be
5permitted for this also! But, as I commenced to point out the constitution doesn’t permit the
States/Territories to legislate as to Aboriginals since 1967 and so be it and if VCAT members
don’t like to conduct matters within the legal framework as the constitution provides for then
they better resign and allow more competent persons take over to do the job.
.
10I am due to publish a book about VCAT and expose some of its problems and I can assure you
that these kind of rulings aren’t going to be complimentary to VCAT because it has positioned
itself to abuse and misuse its own legal powers in defiance of the RULE OF LAW (so the
constitution) and that I view is a very serious issue! Who can respect a Tribunal that disregard
and indeed acts contrary to the RULE OF LAW? In my view VCAT would do better to have a
15special CONSTITUTIONAL advisor associated with VCAT, (Not a pretend constitutional
advisor!) so that VCAT Members at least can consult this CONSTITUTIONALIST and not just
issue orders and bind people to comply with unconstitutional orders, etc. any State legislation or
regulation, since 1967, specifically relating to “race” any race is unconstitutional including for
Aboriginals to use highlands where farmers and others were kicked of the crown lands. Laws
20pertaining Aboriginals must be constitutionally valid and VCAT must respect this in its findings
and orders as otherwise it will cause undue conflict within the community and harm unduly
Aboriginals also, because of the resentment caused by it.
.
.

25MAY JUSTICE ALWAYS PREVAIL®


.

( Our name is our motto!)


.
Awaiting your response, G. H. Schorel-Hlavka

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