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FORM 69

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

UNDER SECTION 78B of the JUDICIARY ACT 1903

MAGISTRATES COURT AT HEIDELBERG
No. of 2002

GERRIT HENDRIK SCHOREL-HLAVKA Defendant

and

AUSTRALIAN ELECTORAL COMMISSION Plaintiff

NOTICE OF CONSTITUTIONAL MATTER

1. The Defendant GERRIT HENDRIK SCHOREL-HLAVKA gives notice that the

proceedings involves a matter arising under the constitution or involving its interpretation
within the meaning of section 78B of the judiciary Act 1903.

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

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

4. The outline of the case at hand and is as follows;

(a) The Defendant was born on 7 June 1947 in Rotterdam, The Netherlands of
parents being Dutch nationals and as such, the Defendant by birth was a Dutch
national.
(b) The Defendant became lawfully married to his (then) wife Ingrid Maria Edith
Schorel on 2 February 1969 and subsequently the had a child born 13
December 1969 named Guido Alexander Silvester Sebastien Viggo Schorel.
(c) The Defendant was at that time in the Dutch (conscripted) army serving
within NATO at the (then) Iron curtain in West Germany, and later joined the
regular Dutch army, from which he resigned to migrate to Australia, upon the
invitation of the Australian government to do so.

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

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

Phone number: 03 9457 7209

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(d) The Defendant, his (then) wife and child entered Australia on 7 April 1971 as
aliens/immigrant all of Dutch nationality, having been provided with a
visa with Permanent residence to enter Australia
(e) The Defendant applied naturalization to become an naturalized Australian.
(f) The Defendant naturalized under the Commonwealth of Australia Australian
Citizenship Act 1948 on 28 March 1994, to take on the Australian
nationality. The ceremony was conducted at 55 King Street, Melbourne at the
Department of Immigration office.
(g) Unbeknown to the Defendant at the time of the naturalization, on 28 January
1898 the framers of the Commonwealth Constitution Bill debated at the
Constitutional convention, as recorded in the Hansard, the issue of alien.
(h) Unbeknown at the time of nominating as a candidate for the Federal election,
the Hansard indicates that the framers required a person to have State
citizenship to obtain Australian citizenship, and so by the time of the 30-11-
2002 election the Defendant discovered he did not appear to be a qualified
elector for not having State citizenship.

Hansard 2-3-1898
Dr. QUICK (Victoria).-I beg to move-
That the following new sub-section be inserted after sub-section (21):-
XXIA. Commonwealth citizenship.
I propose to confer upon the Federal Parliament the power to deal with
the question of Commonwealth citizenship. I have looked through the
Bill very carefully, and I do not see the slightest allusion in it to a federal
citizenship.

And;

Dr. QUICK.-If we are to have a citizenship of the Commonwealth higher,

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. I see therefore nothing
unconstitutional, nothing contrary to our instincts as British subjects, in
proposing to place power in this Constitution to enable the Federal Parliament
to deal with the question of federal citizenship. An objection has been raised
in various quarters-as by the honorable and learned members (Mr. O'Connor
and Mr. Wise)-to the effect that we ought to define federal citizenship in the
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Constitution itself. I have considered this matter very carefully, and it has
seemed to me that it would be most difficult and invidious, if not almost
impossible, to frame a satisfactory definition. There is in the Constitution of
the United States of America a cast-iron definition of citizenship, which
has been found to be absolutely unworkable, because, among other
things, it says that a citizen of the United States shall be a natural-born
or naturalized citizen within the jurisdiction of the United States, and it
has been found that that excludes the children of citizens born outside
the limits of this jurisdiction. That shows the danger of attempting
definitions, and although I have placed a proposed clause defining
federal citizenship upon the notice-paper, the subject, seems to me
surrounded with the greatest difficulty, and no doubt the honorable and
learned members (Mr. Wise, Mr. O'Connor, and Mr. Symon) would be
the first to attack any definition, and would be able to perforate it. In my
opinion, it would be undesirable to implant a cast-iron definition of
citizenship in the Constitution, because it would be better to leave the
question more elastic, more open to consideration, and more yielding to
the advancing changes and requirements of the times.

And
Mr. SYMON.-In clause 52 we have given to the Federal Parliament the
power of dealing absolutely with immigration. If we have given that
power, then incidental to that power they will have an exclusive
jurisdiction as to the status and citizenship of people who come into this
country. If, therefore, the Federal Parliament are to have this entire
control of the citizenship of the nation, then they have a right to say who
shall be admitted to that citizenship and who shall be excluded, and they
must also have the power to define the terms of that citizenship.
(Note; Subsequently on 2-3-1898 the convention defeated a bill to inset into
the Commonwealth Constitution legislative powers for the Commonwealth to
define and declare citizenship.)

Hansard 2-3-1898
Mr. OCONNOR (New South Wales).-
The Federal Parliament could do nothing in the way of defining the
qualification of citizenship or the rights of citizenship beyond the limits
of the Constitution.

Hansard 2-3-1898
Mr. OCONNOR (New South Wales).-
There is no territorial entity coincident with the Commonwealth. Every
part of the Commonwealth territory is part of the state, and it is only by
virtue of his citizenship of a state that any person within the bounds of
the Commonwealth will have any political rights under the Constitution.
Of course, when I speak of a state, I include also any territory occupying
the position of quasi-state, which, of course, stands in exactly the same
position.
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And;
Hansard 2-3-1898
Mr. DOBSON.-Does not that create them citizens?
[start page 1751]
Dr. QUICK.-No, it does not in any way define citizenship. It refers to the
people without in any way defining or stating the mode of ascertaining who
are the people. If the word "people" in this earlier section is to be considered
as giving the test of citizenship, then all the people within the jurisdiction of
the Commonwealth of all races, black or white, or aliens, will be considered
members of this new political community. What I want to see inserted in the
Bill is a constitutional definition of citizenship.

And;

Dr. QUICK.-I want to see either a constitutional definition in the Bill or

the power conferred on the Federal Parliament to define what constitutes
citizenship. If that be done, then of course there will be two citizenships
within this United Australia. There will be the citizenship of the state in
which a person resides, the rights and duties of which will be determined
by the laws of the state, and there will be the wider federal citizenship,
the rights and duties and incidence of which will be defined by the
Federal Parliament.

Hansard 2-3-1898

Mr. BARTON (New South Wales).-We have provided in this Constitution

for the exercise of the rights of citizenship, so far as the choice of
representatives is concerned, and we have given various safe-guards to
individual liberty in the Constitution. We have, therefore, given each resident
in the Commonwealth his political rights, so far as the powers of legislation
and administration intrusted to the Commonwealth are concerned. Let us
consider the position. Before the establishment of the Commonwealth, each
subject is the subject of a state. After the Commonwealth is established, every
one who acquires political rights-in fact, every one who is a subject in a state,
having certain political rights, has like political rights in the Commonwealth.
The only difference between the position before the institution of the
Commonwealth and afterwards is that, so far as there are additional political
powers given to any subject or citizen, be has the right to exercise these, and
the method of exercising them is defined. So far the right of citizenship, if
there is a right of citizenship under the empire, is defined in the
Constitution. Now, each citizen of a state is, without definition, a citizen
of the Commonwealth if there is such a term as citizenship to be applied
to a subject of the empire. I must admit, after looking at a standard
authority-Stroud's Judicial Dictionary-that I cannot find any definition of
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citizenship as applied to a British subject. No such term as citizen or

citizenship is to be found in the long roll of enactments, so far as I can
recollect, that deal with the position of subjects of the United Kingdom,
and I do not think we have been in the habit of using that term under our
own enactments in any of our colonies.
Mr. HIGGINS.-You had it in the Draft Bill.
Mr. BARTON.-Yes; but the term has since disappeared, and it disappeared
owing to objections from members of the Convention. I am inclined to think
that the Convention is right in not applying [start page 1765] the term
"citizens" to subjects residing in the Commonwealth or in the states, but in
leaving them to their ordinary definition as subjects of the Crown. If,
however, we make an amendment of this character, inasmuch as citizens of
the state must be citizens of the Commonwealth by the very terms of the
Constitution, we shall simply be enabling the Commonwealth to deal with
the political rights of the citizens of the states. The one thing follows from
the other. If you once admit that a citizen or subject of the state is a
citizen or subject of the Commonwealth, the power conferred in these
wide terms would enable the Federal Parliament to deal with the political
rights of subjects of the states. I do not think the honorable member
intends to go so far as that, but his amendment is open to that
misconception.
Mr. HOWE.-Trust to the Federal Parliament.
And
Mr. BARTON.-When we confer a right of legislation on the Federal
Parliament we trust them to exercise it with wisdom, but we still keep as the
subject of debate the question of whether a particular legislative right should
be conferred on the Federal Parliament. When you give them the right then
you may trust them to exercise it fully.
Mr. HOWE.-And wisely.

Mr. BARTON.-But inasmuch as we have given to the Commonwealth the

power of regulating the entry of that class of persons, and the power of
regulating them when they have entered, is it not desirable that in that process
there shall be left to the Commonwealth power of repressing any such
practices in the name of religion as I have indicated? If it be necessary that
there should be some regulative power left to the Commonwealth, then the
argument that we should leave the matter to the states does not apply, because
we give such a power to the Commonwealth.
Mr. HIGGINS.-Then all crimes should be left to the Commonwealth?
Mr. BARTON.-No;because you do not give any power
with regard to punishing crime to the Commonwealth,
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but you do give power to the Commonwealth to make special laws as to alien
races; and the moment you do that the power of making such laws does not
remain in the hands of the states; and if you place in the hands of the
Commonwealth the power to prevent such practices as I have described you
should not defeat that regulative power of the Commonwealth. 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, whilst we do give the Commonwealth power with
regard to alien races; and having given that power, we should take care
not to take away an incident of it which it may be necessary for the
Commonwealth to use by way of regulation.

And;

Mr. BARTON.-If the honorable member's exclamation means more than I

have explained, then the best thing to do is to confide to the Commonwealth
the right of dealing with the lives, liberty, and property of all the persons
residing in the Commonwealth, independently of any law of any state. That is
not intended, but that is what the expression "Trust the Federal Parliament"
would mean unless it was limited by the consideration I have laid down. I am
sure Dr. Quick will see that he is using a word that has not a definition in
English constitutional law, and which is not otherwise defined in this
Constitution. He will be giving to the Commonwealth Parliament a power,
not only of dealing with the rights of citizenship, but of defining those
rights even within the very narrowest limits, so that the citizenship of a
state might be worth nothing; or of extending them in one direction, and
narrowing them in another, so that a subject living in one of the states
would scarcely know whether he was on his head or his heels. Under the
Constitution we give subjects political rights to enable the Parliament to
legislate with regard to the suffrage, and 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
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Imperial authority, has been carried into legislation by the various

colonies, and, of course, we cannot do less for the Commonwealth than
we have done for the colonies.

(i) That the framers of the Commonwealth Constitution specifically stated in

regard of citizenship and political rights;
Hansard 2-3-1898

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

And

Every part of the Commonwealth territory is part of the state, and it is only by
virtue of his citizenship of a state that any person within the bounds of the
Commonwealth will have any political rights under the Constitution.

And

You will find in dealing with this question of the definition of citizenship,
that you will have to be very careful in your definition, because it would
be rather too limited a definition to confine it only to persons who are
natural-born or naturalized subjects, unless you are dealing simply with
the political aspect.

And

Mr. OCONNOR.-If they are political rights, they are conferred already by
virtue of a person being an inhabitant of a state entitled to certain political
rights, in such state. The honorable member cannot intend to give a
different right to a citizen politically under the government of the
Commonwealth from the right of a citizen of any state. The rights are
coterminous-coincident-and the political rights of every citizen of the
Commonwealth who is within the Commonwealth arise by virtue of
his being a citizen of a state.
And

Mr. BARTON (New South Wales).-

Let us consider the position. Before the establishment of the Commonwealth,
each subject is the subject of a state. After the Commonwealth is established,
every one who acquires political rights-in fact, every one who is a subject in a
state, having certain political rights, has like political rights in the
Commonwealth. The only difference between the position before the
institution of the Commonwealth and afterwards is that, so far as there are
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additional political powers given to any subject or citizen, be has the right to
exercise these, and the method of exercising them is defined. So far the right
of citizenship, if there is a right of citizenship under the empire, is
defined in the Constitution. Now, each citizen of a state is,
without definition, a citizen of the Commonwealth if
there is such a term as citizenship to be applied to a
subject of the empire.
(j) That for the Commonwealth to define citizenship as to whom can obtain it,
and in what circumstances, defeats other sections of the Commonwealth
Constitution including
117 Rights of residents in States
A subject of the Queen, resident in any State, shall not be subject
in any other State to any disability or discrimination which would
not be equally applicable to him if he were a subject of the Queen
resident in such other State.
As the Commonwealth then had the power, as example, to define a citizen
not being a subject of the Queen, by this not being entitled to the privileges,
rights and duties of this or other sections of the Commonwealth Constitution.
If a particular alien would or would not upon naturalization obtain the right
to vote in State elections, etc.
(k) The framers placed beyond doubt that the only way a person obtains
Australian citizenship is AUTOMATICALLY upon obtaining State
citizenship!
(l) The State of Victoria appears to have had at no time any Statute to declare
what is State citizenship
(m) The Defendant was to his knowledge never provided with State citizenship, as
such neither could have obtained Australian citizenship.
(n) The Defendant was at the time of naturalization residing at 10 Anderson
Berriwillock, Victoria, and was since naturalization enrolled on the State
electoral roll.
(o) The Defendant within the provisions of Section 41 of the Commonwealth
Constitution was granted to be an elector in Federal elections.
(p) The Defendant stood as a candidate for the Legislative Council, North
Western electorate, in 1996 as an INDEPENDENT.
(q) The Defendant stood as a candidate for the Legislative Assembly, Swan Hill
electorate, in 1999 as an INDEPENDENT.
(r) The Defendant married on 28 March 2001 and by marriage changed his name
to GERRIT HENDRIK SCHOREL-HLAVKA, by this annexing his wife late
husbands surname, while his wife annexed his name to become Mrs O. A. M.
HLAVKA-SCHOREL.
(s) The Defendant moved to his current residential address on 28 March 2001.
(t) Upon the issue of the writs on 8 October 2001, the Defendant notified in
person the Australian Electoral Commission of the change of details, which
were then used to amend the electoral roll.
(u) The Defendant became an INDEPENDENT candidate for the seat of
JAGAJAGA.
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(v) The Defendant then became aware that the writs had not been issued
according to law and on 20 October 2001 notified the then Care Taking
Prime Minister of Australia Mr John Winston Howard, the Leader of the
opposition Mr Kim Beazley, the Australian Electoral Commission and various
others by e-mail that the writs were defective.
(w) Unbeknown to the Defendant at that time, the Gazette S421 containing the
Proclamation of the Prorogue of the Parliament and the Dissolution of the
House of Representative had not been published in on 8 October 2001, but
had been published first in Canberra on 9 October 2001, and in Victoria not
until 10 October 2001, Western Australia not until 15 October 2001, New
South Wales not until 18 October 2001, Tasmania not until 22 October 2001
and in no State or Territory was ever any Proclamation published on 8
October 2001.
(x) The Defendant sought under protracted FOI Act request information details as
to any delivery details, but other then computer records showing that the
Special Gazette s421 was till at the (private) printers company on 9 October
2001, the Commonwealth claimed to be unable to provide any further
details/information upon the basis they didnt exist! As such, there is no
evidence to prove what date and time the printers allegedly delivered S421 for
publication and as such, the computer records showing 9 October 2001 are the
only records that can be relied upon as being reliable that at that time the
Special Gazette S421 was still at the printers.
(y) That the Defendant holds that for the failure to publish the Proclamation on 8
October 2001, all writs for the general election were ULTRA VIRES, in that
they were issue before any vacant seats existed and in breach of the
Commonwealth Constitution, which requires that the proclamation be
published prior to any writs being issued. As well as that each and every writ
issued was defective for failing to comply with the relevant legislation
concerning the time table set out in each legislation that was applicable for
each particular writ.
(z) That albeit the Act Interpretation Act 1901 does refer to that the Court shall
take notice of the date of the Gazette of the Government Printers, in this
case the Gazette was not printed by the Government Printers, and neither had
any such reference on it, as such the Act Interpretation act 1901 didnt apply.
(aa) The Defendant instituted legal proceedings in the Federal Court of Australia
as to seek an injunction, however matters were not heard upon the merits of
the case, as Marshall J held that the matters was one to challenge the election
which fell within Section 353(1) using the wording and not otherwise of the
Commonwealth Electoral Act 1918, not within Section 383 of the said Act
and as such dismissed the matter with cost.
(bb) The Defendant appealed that decision on 22 November 2001 as M114 of 2001
and this matter is still outstanding. The Defendant argues that and not
otherwise was incorrectly interpreted, an error of law, in that the High Court
of Australia in Sue v Hill set out the true meaning of the wording, and also
that as the Defendant contested the validity of all writs then the Court of
Disputed Returns lacks any legal jurisdiction to hear such matter. Further, that
the issue of injunction against the Australian Electoral Commission was
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within the jurisdiction of the Federal Court of Australia where the case was
that the AEC was publishing ongoing false and misleading information and by
this caused to misled the public, the Government and the Commonwealth.
Also, that the AEC could not excuse itself to rely upon writs that were issued
upon their own incorrect advice. The writs for the House of Representatives
had been actually prepared by the AEC for the Governor-General.
(cc) The Defendant refused to exercise his (purported) rights to vote in the Federal
election, nor appears there be any legal requirement within the Australian
Electoral Act 1918 that a person must attend to a polling booth. An elector is
given an opportunity to elect to vote by way of absentee vote, or otherwise but
no distinct requirement appears to exist that one must do either one or the
other.
(dd) The Federal General election existed of two different elections, being one for
the half-Senate and one for the House of Representatives.
(ee) The Act requires that the Commission, or the person acting on its behalf shall
show that the ballot box is empty. The Act doesnt state that this must only
occur at the commence of the polling day or at the commencement of each
day the AEC allows people to vote in the preceding days. As such, the
defendant takes the view that failure any specific set out the officer in charge
must show the ballot box to be empty prior to each voter depositing a vote.
This, as the Statute is silent otherwise.
(ff) That the Defendant and his wife attended to the nearest polling booth on
Saturday 10 November 2001 and his wife Mrs O. A. M. HLAVKA-
SCHOREL then attended into the polling booth and upon her return made
known that the presiding officer (so his staff) had only once marked of her
name and then issued both the ballot paper for the Senate and the House of
Representatives.
(gg) The Defendant holds that this conduct is unconstitutional, this as this forces a
person to vote for both polls at the same time, and denied the elector his/her
right to vote for different polls at different polling booths. The AEC by this
unduly obstruct the right of the elector to vote at his/her choice at whatever
polling booth within the state of Victoria for the Senate at any day the
elector wishes to do so.
(hh) That the Commonwealth Electoral Act 1918 doesnt stipulate that an
elector has no right to vote for the Senate at a different day and polling
booth then for the house of Representatives, and as such , the AEC unlawfully
requires a person to cast a vote, not within the powers of the AEC.
(ii) The AEC also prevented electors (in various States to become Nominated
candidates, by closing the nominations as per writs that were incorrectly
issued and as such, in Victoria denied Mrs Heidi Holz to become a nominated
candidate, even so by State of Victoria legislative provisions Mrs Heidi Holz
had another 48 House to nominate.
(jj) The Commonwealth Electoral Act 1918 provides for an electoral roll for
the Commonwealth, this even so by S41 of the Commonwealth Constitution
it is the State electoral roll that holds a person to be an elector within S41.
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(kk) The ACE had caused to print and distribute to Candidates Candidate
booklets which showed incorrect election timetables as to State legislative
provisions in regard of Senate elections.
(ll) The ACE had caused to print and distribute to Candidates Candidate
booklets which showed incorrect election timetables as to Commonwealth
legislative provisions in regard of House of Representatives elections.
(mm) The AEC had published the Pocket handbook, which included the results of
the 1998 federal election, which listed the various State legislations in regard
to State elections of its Houses of Parliament, however the AEC purported this
to be the Senate legislation of the State governing Federal elections.
(nn) That for all purposes, the Proclamation signed by the Governor-General on 5
October 2001 didnt become effective in Canberra until 9 October 2001 when
it become first published.
(oo) That the issue of writs for the States are issued by the Governors of each State
and as such, as a State legislative issue. The writs for the States, as such, could
not be issued, unless first the Proclamation of the Governor-General was
published in that State. And, this never occurred until 10 October 2001 in the
State of Victoria!
(pp) Section 41 of the Commonwealth Constitution requires that a person to be
eligible to be an elector in a Federal election must be entitled to be an elector
for the numerous Houses of the State Parliament. The right of being an
elector for the Commonwealth, is upon the condition that such right of being
an elector for the numerous Houses is maintained.
(qq) Queensland abolished its Upper House, as such no elector of the State of
Queensland can be deemed to be qualified to be an elector, as such neither
have any candidates or become a member of parliament in the Federal
Parliament.
(rr) The framers of the Constitution also made clear that the Territories could have
representatives in the Senate but could not vote. They were deemed States in
transit (Quasi States) but specifically failed the right to vote in the Senate.
While the High Court of Australia in the 1975 case ruled otherwise, this is an
error in interpretation of the intention of the framers! This, as the framers
specifically stated that the Senators of a Territory were representatives who
had no right to vote.
(ss) That the framers of the Commonwealth Constitution rejected Dr Quick (of
Quick & Garran) submission to give the Federal Parliament constitutional
powers to define or otherwise determine Australian citizenship.
(tt) That the Victorian constitution requires that a person to be eligible to be an
elector, candidate or Member of Parliament must be an Australian citizen as
defined in the Australian Citizenship Act 1948. As such, referring to an Act
that is ULTRA VIRES in regard to any definition of citizenship!
(uu) That neither the Defendant or other person who had not obtained State
citizenship could obtain Australian citizenship and for this disqualified from
being an elector, candidate or member of Parliament for State elections.
(vv) That where the Defendants and others failing to be qualified to be an elector
then the incorrect listing as an elector is ULTRA VIRES in regard of any
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person listed on the elector rolls without actually having obtained State
citizenship.
(ww) That the Defendant and any person is disqualified from being an elector for
State elections, then also is disqualified by Section 41 to be an elector in
Federal elections.
(xx) That the Defendant understand that the same lack of qualifications has
occurred in most other states.
(yy) That as such, most electors who voted in the Federal general election appears
not to have been duly qualified for failure to be legitimate entitled State
voters.
(zz) That by way of 19 November 2002 the Attorney General, through the
Department of Justice, provided that; As explained in my previous letter,
citizenship is a matter for the commonwealth, not the States. And You
believe that you must be made a citizen of the State of Victoria. That is
incorrect. And You believe that you must be made a citizen of the State
of Victoria. That is not correct.
(aaa) That it is clear that Victoria has no Statute to define and declare State
citizenship and neither that any person is granted State citizenship and for this
no person, including myself, obtained either Australian citizenship.
(bbb) That albeit it is within the powers Section 51 (xxxvii) of the Commonwealth
Constitution of a State to adapt any Federal law, and upon this adaptation
the Federal law become the law governing this adoption and the State lacks
any legislative powers then to alter or amend it or otherwise dispose of it, the
fact that the Commonwealth provided for the definition of citizen in an
unconstitutional manner, the States in effect adapted a Commonwealth law
that was ULTRA VIRES for so far it dealt with citizenship as it was beyond
the legislative powers of the Commonwealth to define this.
(ccc) That, where the State of Victoria provides in its constitution that a person
must have Australian citizenship but didnt provide the very mechanism of
Statute to provide State citizenship, then no person can obtain Australian
citizenship.
(ddd) That where the Australian Citizenship Act 1948 for so far it purports to deal
with citizenship is declared ULTRA VIRES, then this releases the States to
this Federal law.
(eee) That by the State of Victoria, and other States having made the legal
requirements that an elector must be an Australian citizen, then this condition
must be complied with, irrespective if due to the nature of omitting State
citizenship legislation this cant be obtained.
(fff) The Constitution of Victoria, albeit it adopting the Australian Citizenship Act
1948 in regard of Australian citizenship, in itself is not granting any State
citizenship to any person, even if the Australian Citizenship Act 1948 were to
be held constitutional valid (this is not conceded by the Defendant) for the fact
that the political rights of a State citizen is within the borders of the State and
cant be made dependent of some Commonwealth law that was not part of
State law.
(ggg) That there appear to be no Section 128 Commonwealth Constitution
referendum that has approved for the Commonwealth to exercise further
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and/or additional legislative powers as to define citizenship and/or

otherwise grant this to any person, for this, as the time of the enactment of the
Australian Citizenship Act 1948 in for so far it was referring to citizenship
it is and remained ULTRA VIRES, and any adaptation of this ULTRA VIRES
section doesnt make the Act constitutional valid.
(hhh) Commonwealth Constitution 41 Right of electors of States
No adult person who has or acquires a right to vote at elections for
the more numerous House of the Parliament of a State shall, while
the right continues, be prevented by any law of the Commonwealth
from voting at elections for either House of the Parliament of the
Commonwealth.
As such, a person who is enrolled for State elections as an elector, upon that
basis, irrespective if or if not enrolled on any electoral roll of the
commonwealth, cant be prevented from voting for any Federal election.
There is no need to have Commonwealth enrolment as the State enrolment is
what qualifies an State elector to vote for Commonwealth elections.
The legal requirements by the Commonwealth that unless one enroll with the
Commonwealth one cannot vote in a federal election is therefore
unconstitutional. The Commonwealth has no constitutional powers to
legislate such disability, as such any legislation to impose any disability is
ULTRA VIRES!
(iii) That the Commonwealth refusing Australians to vote in Commonwealth
elections for being abroad, without registering, albeit still being entitled to
vote in State elections, is unconstitutional and so ULTRA VIRES.
(jjj) That within the provisions of the Commonwealth Constitution, there is no
duty for any elector having to vote, it is rather an elective rights to become an
elector, however, the way the system is implemented is that a person who only
enrols for State elections is then by the VEC passed on to the AEC, without
any consent of an elector, and by this forced to vote for a Federal election.
(kkk) That the Commonwealth makes it compulsory for electors to vote, which
appears to be for no other reason but because of the payment per vote to
candidates. This causes an unfair election campaign of major political parties
versus independents who do not have such form of payment.
(lll) That I object to having my vote used as payment per vote, for that also
refuse to vote.
(mmm)That the various unconstitutional issues resulted to a product of purported 10
November 2001 elections which were not FAIR AND PROPER
ELECTIONS.
(nnn) The proceedings before the High Court of Australia as M114 of 2001 has not
been disposed of.

5. The Magistrates Court only can INTERPRETE, and ENFORCE LAWS of the
COMMONWEALTH OF AUSTRALIA, as governed by the Commonwealth
Constitution and by this interpreting matters as set out by the recorded intentions of the
Constitutional Conventions held in 1891, 1897 and 1898 for so far this is within its legal
jurisdiction and power, and otherwise refer the matter for a CASE STATED to the
HIGH COURT OF AUSTRALIA for its determination of the true interpretation of the
 - 14 -
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Commonwealth Constitution, in particularly where the Commonwealth Constitution is

silent of any term of citizenship and as such the Commonwealth appears to have no
legislative powers if it is not stated in the Commonwealth Constitution!

6. That a Form 69 under Section 78 of the Judiciary Act was forwarded to all Attorney
Generals of each State and Territory and of the Commonwealth about this.

7. The Defendant relies upon HCA 27 of 1999 the HIGH COURT OF AUSTRALIA (at
79) stated,

The orders made in Gould v Brown have no constitutional affect. For constitutional purposes,
they are a nullity. No doctrine of res judicata or issue estoppel can prevail against the constitution.
No Gould is entitled to disregard the orders made in Gould v Brown.

As such, the Defendant applies the same to any enrolment with the commonwealth
being unconstitutional, as well as the manner in which the purported 10 November 2001
elections were held and the Defendant was under no constitutional requirement to comply
with some unconstitutional conducted election making a farce of the democratic
processes and no more but support a tyrannical conduct.

8. That likewise I have found the same NEGLICENCE of the Australian electoral
commission to deal with the matter appropriately and having engaged Mr Peter Hanks
QC to deceive the Federal Court of Australia and to make false and misleading
statements as well as to conceal from the Court relevant details and by this perveting the
course of justice and causing a miscarriage of justice, underlines that this matter is one
that could not proceed unless the true constitutional provisions are appropriately
determined.

9. That the Defendant in October 2002 published his book on CD titled;

INSPECTOR-RIKATI and the BANANA REPUBLIC AUSTRALIA

Dictatorship & deaths by stealth. Preliminary book edition on CD.

This book sets out in extensive details many issues regarding citizenship and the lack
of legislative powers by the commonwealth to define, declare and/or grant any
citizenship!
It also contains references in extensive manner of E Barton (Australias first Prime
Minister and later High Court Judge) making clear, that if it is not stated in the
Constitution then the Commonwealth has no legislative powers.

10. That refer to the following statutes

CONSTITUTION ACT 1975

- SECT 48
Qualification of electors for the Council and the Assembly
 - 15 -
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48. Qualification of electors for the Council and the Assembly

(1) Subject to this Act, a person who-

(a) is-

(i) an Australian citizen; or

(ii) a person (other than an Australian citizen) who would, if the relevant citizenship law
had continued in force, be a British subject within the meaning of that relevant citizenship
law and whose name was, at any time within the three months immediately before 26
January 1984, enrolled on-
(A) an electoral roll for an electoral district of the Assembly; or
(B) an electoral roll maintained under any one of the Commonwealth Acts known as the
Commonwealth Electoral Act 1918, the Australian Capital Territory Representation (House
of Representatives) Act 1973 and the Northern Territory Representation Act 1922; and

(b) is of the full age of eighteen years-

shall be entitled to enrol as an elector for the Council and the Assembly.

(2) A person who-

(a) has been convicted of treason under the law of Victoria or treason or
treachery under the law of the Commonwealth or a State or Territory of the
Commonwealth and has not been pardoned;

(b) has been convicted and is under sentence for an offence punishable under the
law of Victoria or of the Commonwealth or of a State or Territory of the Commonwealth
by imprisonment for five years or longer;

(c) is-

(i) the holder of a temporary entry permit for the purposes of the Commonwealth Act
known as the Migration Act 1958; or
(ii) a prohibited immigrant under that Act; or

(d) by reason of being of unsound mind, is incapable of understanding the nature

and significance of enrolment and voting-

is not entitled to have the person's name placed on or retained on a roll of electors for the
Council or Assembly.
 - 16 -
-

(2A) An elector who has changed his or her name under Part 4 of the Births, Deaths and
Marriages Registration Act 1996 is not by reason only of that change of name disqualified
from voting under the name appearing on the roll.

(3) Any entitlement to enrolment shall be subject to compliance with any law relating to
enrolment for and voting at elections for the Council or Assembly.

(4) Subject to this section, the Parliament may make such laws as it deems necessary or
expedient for or with respect to enrolment for and voting at elections for the Council or
Assembly.

(5) In sub-section (1), "relevant citizenship law" means the Australian Citizenship Act
1948 of the Commonwealth as amended and in force immediately before the day fixed by
Proclamation for the purposes of section 2(2) of the Australian Citizenship Amendment
Act 1984 of the Commonwealth and the regulations in force immediately before that day
under the Australian Citizenship Act 1948 as so amended and in force.

Electoral Act 2002

Act No. 23/2002

Division 1Entitlement to Vote

87. Voting at elections

(1) A person is entitled to vote in an election in accordance with this Act if the
person
(a) is qualified to enrol as an elector under the Constitution Act 1975; and
(b) is enrolled as an elector under Part 3 of this Act; and
(c) in the case of an elector enrolled under section 22(1), is enrolled in respect of
the address of the person's principal place of residence or the address of the
place that was the person's principal place of residence during the period of 3
months immediately before election day.
(2) An elector
(a) whose name has been placed on the register under section 22(5); and
(b) who has not attained 18 years of age on election day
is not entitled to vote at the election.
(3) An elector must vote at every election for which the elector is entitled to vote.
(4) An elector may vote
(a) on election day at an election day voting centre; or
(b) in accordance with any other manner provided under this Part, if the elector is
entitled to use that manner of voting.

Division 1-Entitlement to enrolment

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THE CONSTITUTION ACT AMENDMENT ACT 1958

- SECT 50
Entitlement to enrolment of electors for Assembly and Council

50. Entitlement to enrolment of electors for Assembly and Council

(1) A person who is qualified to enrol as an elector for the Assembly and Council and
has resided at an address in a district for at least one month immediately preceding the date of the
person's claim for enrolment as an elector is entitled in respect of residence at that address in that
district-
(a) to enrol as an elector for the Assembly and Council on the roll for that district
and corresponding province; and

(b) when enrolled and so long as the person continues to reside at that address in
that district to vote at an election for the district or the corresponding province.

(2) An elector who has changed residence to another address within the same district is
not deemed by reason only of the change of residence to be dispossessed of the qualification in
respect of which the elector is enrolled.

(3) A woman is not by reason only that her surname has been changed by marriage
disqualified from voting under the name appearing on the roll.

(4) A person who is serving a sentence of imprisonment or detention imposed by a court

upon a conviction for an offence is deemed to reside at the address at which he or she resided at
the time of his or her conviction.

THE CONSTITUTION ACT AMENDMENT ACT 1958

- SECT 51
Eligible overseas electors

51. Eligible overseas electors

(1) An elector-

(a) whose name appears on the roll for a district; and

(b) who intends to cease to reside in Australia and then, not later than 6 years
after the day on which the elector so ceases, to resume residing in Australia at the address in
respect of which the elector is enrolled or elsewhere; and

(c) whose name appears on the electoral roll maintained under the
Commonwealth Electoral Act 1918 for a Commonwealth subdivision and that roll is annotated to
indicate that the elector is an eligible overseas elector under section 94 of the Commonwealth
Electoral Act 1918-
 - 18 -
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is entitled, whilst the elector's name continues to be included and annotated on the
Commonwealth roll referred to in paragraph (c) to-

(d) have the elector's name retained on the roll for the district and province
corresponding with the Commonwealth subdivision referred to in paragraph (c) with an
annotation to indicate that the elector is an eligible overseas elector; and

(e) vote as an elector for that district and corresponding province.

(2) A person-

(a) who is the spouse or child of an elector who is an eligible overseas elector by
virtue of sub-section (1) in relation to a district; and

(b) who is living at a place outside Australia so as to be with or near the eligible
overseas elector; and

(c) who had not attained the age of 18 years when the person last ceased to reside
in Australia; and

(d) whose name is not, and has not been, on a roll of electors for the Assembly
and Council; and

(e) who is not entitled to be enrolled under section 50(1) but would be so entitled
if the person resided in a district; and

(f) who intends to resume residing in Australia not later than 6 years after the day
on which the person attained 18 years of age; and

(g) whose name has been added to an electoral roll maintained under the
Commonwealth Electoral Act 1918 for a Commonwealth subdivision and that roll is annotated to
indicate that the elector is an eligible overseas elector under section 95 of the Commonwealth
Electoral Act 1918-

is to be enrolled for the district and province corresponding with the Commonwealth subdivision
referred to in paragraph (g) for which the eligible overseas elector is enrolled with an annotation
to indicate that the person is an eligible overseas elector.

(3) Whilst the person's name continues to be included and annotated on the
Commonwealth roll referred to in sub-section (2)(g), the person is entitled to-

(a) have the person's name retained on the roll for the district and corresponding
province; and

(b) vote as an elector for that district and corresponding province.

 - 19 -
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(4) A person may apply to the electoral registrar for enrolment as an elector for the
Assembly and Council for a district and corresponding province if, at the time of making the
application-

(a) the person has ceased to reside in Australia for reasons relating to the person's
career or employment or for reasons relating to the career or employment of the person's spouse;
and

(b) the person is not enrolled; and

(c) the person is not qualified for enrolment, but would be so qualified if he or
she resided at an address in a district and had done so for at least a month; and

(d) the person intends to resume residing in Australia not later than 6 years after
he or she ceased to reside in Australia.

(5) The application must be-

(a) in writing; and

(b) made within 2 years of the day on which the person ceased to reside in
Australia.

(6) If the electoral registrar grants the application, the electoral registrar must cause the
person's name to be added to the roll-

(a) for the district and corresponding province for which the person last had an
entitlement to be enrolled; or

(b) if the person has never had such an entitlement, for a district and
corresponding province for which any of the person's next of kin is enrolled; or

(c) if neither paragraph (a) nor (b) applies, for the district and corresponding
province in which the person was born; or

(d) if none of paragraphs (a), (b) and (c) applies, the district and corresponding
province with which the person has closest connection.

(7) If-
(a) the application was received by the electoral registrar after 6 p.m. on the day
of the close of the rolls of an election to be held in a district or province; and

(b) the application relates to that district and corresponding province-

the person's name must not be added to the roll for the district and corresponding province until
after the close of the poll for that election.
 - 20 -
-

(8) The electoral registrar must notify the person in writing-

(a) of a decision to grant or refuse the application; or

(b) of the electoral registrar's opinion that the application cannot be proceeded
with because of sub-section (7).

(9) If the application is granted, the elector is entitled to vote at an election for the
district or corresponding province for which the elector is enrolled under sub-section (6) while
the elector continues to be so enrolled.

(10) In this section-

"child" includes an ex-nuptial child;

"spouse", in relation to a person (in this interpretation referred to as the relevant person)
includes a person who, although not legally married to the relevant person, lives with the
relevant person as the spouse of the relevant person on a permanent and bona fide domestic
basis.

THE CONSTITUTION ACT AMENDMENT ACT 1958

- SECT 52
Itinerant electors

52. Itinerant electors

(1) A person-

(a) who is in Australia but does not reside in any district; and

(b) who is not entitled to have the person's name placed or retained on the roll for
any district by reason only that the person does not reside at any address in any district; and

(c) whose name has been added to an electoral roll maintained under the
Commonwealth Electoral Act 1918 for the Commonwealth subdivision with which the person
has established a connection under section 96 of that Act and the roll maintained under that Act
is annotated to indicate that the elector is an itinerant elector under section 96 of that Act-

is entitled to have the person's name added to the roll for the district and province corresponding
with the Commonwealth subdivision referred to in paragraph (c) with which the person has the
connection with an annotation to indicate that the elector is an itinerant elector.

(2) Whilst the person's name continues to be included and annotated on the
Commonwealth roll referred to in sub-section (1)(c), the person is entitled to-

(a) have the person's name retained on the roll for that district and corresponding
province; and
 - 21 -
-

(b) vote as an elector for that district and province.

THE CONSTITUTION ACT AMENDMENT ACT 1958

- SECT 53
Entitlement of provisional electors

53. Entitlement of provisional electors

(1) An elector-

(a) whose name has been placed on the roll in pursuance of a claim under section
63; and

(b) who has not attained 18 years of age on the date fixed for the polling in an
election-

is not entitled to vote at that election.

(2) Notwithstanding section 63 or any enrolment made in pursuance of a claim made

under that section, for the purposes of an election under this Act, a person who has not attained
18 years of age on the date fixed for polling in that election is not to be-

(a) entitled to be enrolled on a roll; or

(b) enrolled on a roll.

THE CONSTITUTION ACT AMENDMENT ACT 1958

- SECT 54
Savings provision

54. Savings provision

Any person who is entitled to be enrolled as an elector in respect of residence in a subdivision

under section 103 of the Act as in force immediately before the commencement of section 6 of
The Constitution Act Amendment (Amendment) Act 1999, continues to be entitled to be enrolled
in respect of the relevant district and corresponding province.

LOCAL GOVERNMENT ACT 1989

11. Persons entitled to be enrolled

(1) A person who on the entitlement date would be an elector in respect of an address in
a ward if a roll of electors for the Legislative Assembly was prepared, is entitled without
application to be enrolled on the voters' roll in respect of that address.

(2) A person who on the entitlement date-

 - 22 -
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(a) is not a person referred to in sub-section (1); and

(b) is not less than 18 years of age; and

(c) is the owner of any rateable land in a ward whether solely or jointly with any
other person or persons; and

(d) is not a resident of the ward in which that rateable land is located-

is entitled without application to be enrolled on the voters' roll in respect of that rateable land.

(3) For the purposes of sub-section (2) only 2 joint owners are entitled to be enrolled in
respect of any 1 property which is rateable land.

(4) A person who on the entitlement date-

(a) is not a person referred to in sub-section (1) or (2); and

(b) is not less than 18 years of age; and

(c) is the occupier of any rateable land, whether solely or jointly with any other
person or persons; and

(d) is not a resident of the ward in which that rateable land is located-

is entitled without application to be enrolled on the voters' roll in respect of that rateable land.

(5) For the purposes of sub-section (4)-

(a) in relation to rateable land any part of which is separately occupied, only 2
joint occupiers are entitled to be enrolled in respect of each part of the rateable land assessed as a
separate occupancy in accordance with section 158A; and

(b) in relation to any other rateable land, only 2 joint occupiers are entitled to be
enrolled in respect of that rateable land.

LOCAL GOVERNMENT ACT 1989

- SECT 12
Persons entitled to apply to be enrolled

12. Persons entitled to apply to be enrolled

A person who on the entitlement date-

(a) is not a person referred to in section 11; and

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(b) is not less than 18 years of age; and

(c) is an owner or occupier of any rateable land in a ward-

is entitled to apply to be enrolled on the voters' roll in respect of that rateable land.

As for reference of legislative powers within Section 51(xxxvii) of the Commonwealth

Constitution, only valid if there is a successful referendum, to accept this reference of legislative
powers of a State to the Commonwealth!

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

11. That any reference of legislative powers within the provisions of Section 51(xxxvii) of
the commonwealth constitution can only be valid provided this reference of legislative
powers by any State has been carried by way of Section 128 Commonwealth
Constitution referendum. This, as the Hansard shows also considerable debate by the
framers that the people must approve of this! As a reference of legislative powers causes
cost to all Commonwealth taxpayers, it is obvious that for this reason such referendum is
required. Albeit various States have provided for purported reference of legislative
powers non of them were ever submitted and/or approved by way of referendum and as
such remain beyond the legislative powers of the Commonwealth.

12. That the legislative powers of the Commonwealth doesnt rely upon any or all States
adopting the legislation afterwards, but relies upon such Commonwealth legislation at the
time of legislation being enacted to be within the constitution powers of the
Commonwealth Constitution. As not only was there no reference of citizenship in the
Commonwealth constitution, but the framers removed any reference from the original
DRAFT 1891 Commonwealth Constitution Bill and in particularly defeated the
submission of Dr Quick to inset a provision top give the Commonwealth legislative
powers, then irrespective what the High Court of Australia may have claimed in the past,
the Australian Citizenship Act 1948 is and remains UNCONSTITUTION and ULTRA
VIRES for so far it purports to deal with citizenship. Likewise so the Migration Act
references to non-citizen and/or non-citizens remains for that references
unconstitutional and those parts are for this ULTRA VIRES.

13. The Defendant also holds that PARENT PATRICIA doesnt lie with a Court of
Statute, and as such the High Court of Australia has no such position and neither can the
Commonwealth upon its own provides such position to any Minister of the Crown.

THE QUEEN v. DIRECTOR-GENERAL OF SOCIAL WELFARE (VICT.); Ex parte

HENRY (1975) 133 CLR 369
 - 24 -
-

It is clear that the order nisi

for habeas corpus should be discharged unless s. 6 of the Immigration
(Guardianship of Children) Act 1946-1973 (Cth) ("the Act") is invalid as being
beyond the legislative power of the Parliament. (at p371)

Only the Supreme Courts of the Original States can grant PARENT PATRICIA to any
person (Minister or otherwise) and any attempt by the Commonwealth to do so in regard
of any person not being a child of a marriage (as the framers specifically limited this to a
child of a marriage and only in relation thereto of an application for divorce, then the
Commonwealth lacks any legislative powers to deal with the liberties of any alien. The
commonwealth parliament only could regulate that a child arriving as an alien is to be
placed in care of a State authority, but no further than that.

Hansard 2-3-1898

Mr. BARTON
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,

For this I hold that THE QUEEN v. DIRECTOR-GENERAL OF SOCIAL WELFARE

(VICT.); Ex parte HENRY (1975) 133 CLR 369 was wrongly decided.

14. The framers of the constitution made also clear that once a alien had entered Australia
then the Commonwealth, albeit able to regulate aliens could not interfere with their
State rights. Albeit, the High Court of Australia is on record, as I understand it, that once
an alien always and alien. This is untrue. Once a citizen obtains State citizenship or had
paid his/her poll tax then the alien became a citizens, and no longer was an alien for
the purpose of the Commonwealth Constitution. However, Still was referred to as China
man, Afghan or else. As set out in my book, the framers made clear that other then
certain disabilities that the Commonwealth were to place upon an alien to enter
Australia (such as, say, must be in Australia for 5 years before being able to obtain
naturalization, the Commonwealth had no power to oust any alien in defiance of any
State rights obtained.

15. In POCHI v. MACPHEE (1982) 151 CLR 101 the following was stated;
2. The plaintiff, who was born in Italy in 1939, came to Australia in 1959
with the intention of making Australia his permanent home, and has since that
time resided in Australia (apart from one short overseas trip), has
continuously had the intention to remain in Australia as his permanent home
and has been totally absorbed into the Australian community. On 11 September
1974 the plaintiff applied for a grant of a certificate of Australian
citizenship. On 25 February 1975 the application was approved by or on behalf
of the Minister for Immigration, but neither the Minister, nor his Department,
nor anyone on behalf of the Commonwealth notified the plaintiff that his
 - 25 -
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application had been successful. As a result of the absence of notification,

the plaintiff, as was reasonably foreseeable, did not take an oath or
affirmation as specified in s. 15 of the Australian Citizenship Act 1948
(Cth), as amended, and there was not issued to him a certificate of
citizenship. On 17 March 1977 the plaintiff was convicted before the District
Court of New South Wales at Griffith of supplying Indian hemp, contrary to s.
21 of the Poisons Act 1966 (N.S.W.) and was sentenced to imprisonment for two
years. On 7 August 1978 the Minister for Immigration, in purported exercise of
his power under s. 12 of the Migration Act 1958 (Cth), as amended, ordered
that the plaintiff should be deported from Australia.

The High Court of Australia decided this case enormously in that albeit;

On 25 February 1975 the application was approved by or on behalf

of the Minister for Immigration, but neither the Minister, nor his Department,
nor anyone on behalf of the Commonwealth notified the plaintiff that his
application had been successful.

The Court centred its decision upon if the person had or had not made an oath of alience
within the Australian Citizenship Act 1948, rather then if the person was an approved
citizen.
The issue is that the Minister by his approval of the application (regardless if this
application was constitutional valid or not) had recognised that Mr Pochi had been
approved to be granted citizenship. This implies that the Minister at the time of that
approval held that Mr Pochi was a person worthy of citizenship.
The issue then ought to be if the recognition by the Minister in itself was a demonstration
that Mr Pochi was accepted to be a citizen, this as the application within the Australian
Citizenship Act 1948 is ULTRA VIRES in regard of citizenship, and as such the
application was to have been construed not being one of Australian citizenship but rather
one of Australian nationality within the powers of naturalization.
The same with Heather Hill, who by virtue of being a British born British subject upon
arrival in Australia AUTOMATICALLY obtained her political rights to be a State
citizen and so Australian citizen without needing to make any application at all. Her
application for Australian citizenship was one that was really only one to obtain
Australian nationality. This, the High Court of Australia simply omitted to realise.
Heather Hill (Sue v Hill) by virtue of arrival in Australia obtained all political rights
associated with any citizen of the State she came to reside within, including the
provisions then of S41 of the Commonwealth Constitution. That was one of the basic
principles of Federation as the framers made clear that to do otherwise would mean the
Federation bill would be rejected! The Commonwealth Constitution doesnt therefore
either provide for Australia to declare Brittain to be a foreign power, as the inherent
provision is that the commonwealth has no such constitutional powers! Only by way of
Section 128 referendum could this be achieved. The usage of Queen of Australia is
also unconstitutional as again the framers made clear that the Commonwealth had no
constitutional powers to interfere with the standing or otherwise of the Monarchy!
 - 26 -
-

16. That I view that in POCHI v. MACPHEE (1982) 151 CLR 101 the High Court of
Australia erred severely in that it ought not be for the Commonwealth to dictate terms in
Migration Act which are within the powers of any State. In that case, the person was
convicted of an offence under NSW law, which for the same in another State may not
have resulted to any conviction, if the laws of that State didnt hold it a criminal offence.
As such, the Commonwealth powers must be held to be confined to any offences that are
committed or allegedly committed under Commonwealth law and even then it is for the
States to determine the innocent or guilt of that person. (as set out in my book).
Australian citizenship can only deal with laws under the Commonwealth Constitution,
not any particular State laws. As such, I view that by virtue of State citizenship Mr
Pochis criminal record not being an issue within his State ought to have been no issue
for Commonwealth purposes. It is here where the issue of State versus Australian
citizenship is also very relevant!

17. That there is a confusion by the various Courts about what Australian citizenship is
really about and the oath associated to it is shown also in the matter of Moller v Board of
Examiners for Legal Practitioners [1999] VSCA 116 (30 July 1999) the Court there
considers the oath/pledge made as an alien to become naturalized and that of the Court.
What it omitted to realize and address is that the oath/pledge to become naturalized is one
to the whole of Australia, all laws governing all citizens of Australia, where as an oath as
practitioner to the State of Victoria is in regard of laws of the State of Victoria, being
often different to laws of other States. Here is the problem that eminent lawyers even in
the position of being judges fail to realise that State citizenship is to protect a citizen
of that State in regard of all rights and privileges provided for within that State, which
may be different then those rights and privileges of another State. That the rights and
privileges of being an Australian citizen only relates to rights governed by the
Commonwealth Constitution, and have nothing to do with State rights unless so
specifically stated in the Commonwealth Constitution. citizenship relates to political
rights, not to naturalization!

18. That I am aware that the political party named Australian Greens are campaigning for
Australian citizenship above that of State citizenship, as least various of its campaigners
made known to me. This, even so State citizenship and Australian citizenship are
complimenting each others, and do not in any way conflict with each other. State
legislation dictates State citizenship political rights Commonwealth legislation dictates
Commonwealth citizenship political rights for so far permissible within the provisions of
the Commonwealth Constitution. The right of trade without restrictions of any State
borders is clearly a political rights obtained as an Australian citizen.

19. That no person can become Australian citizen without being first a State citizen.
Albeit the Commonwealth has the legislative powers to determine who can enter
Australia, it cant force any State to accept any person into its State territory. As such, the
Commonwealth may, for argument sake, grant visas to a person of PURPLE
NATIONALITY to enter Australia, but it cant force a State to accept this person from
PURPLE NATIONALITY as a resident and/or citizen, if that particular State doesnt
want such people to enter its State. The right to govern immigration and of aliens is one
to determine if they are suitable to Australia, but doesnt extend to override the
 - 27 -
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Sovereignty of the States to determine who shall or shall not be its residents and/or
citizens. Indeed , as set out in my book, the framers made clear that no State could be
forced to accept people it didnt want as residents.

20. The framers of the Commonwealth Constitution themselves didnt even know the true
meaning of citizenship and as such could not be perceived to give the Commonwealth
some legislative powers as to something they themselves questioned what it was
meaning. Indeed, the framers made clear it was for every State to determine for
themselves what the true meaning of citizenship was within their own State.

Hansard 2-3-1898

The Federal Parliament could do nothing in the way of

defining the qualification of citizenship or the rights of
citizenship beyond the limits of the Constitution.
I would point out to Dr. Quick that he is proposing to give a power to regulate or
describe rights of citizenship, when we really do not know at present what is
meant by a citizen. I confess I do not know what the honorable and learned member
means by that term.

21. That the position is that the Commonwealth is the federation of the States as to limited
powers only. The States are the independent sovereign nations that came together for
certain purposes but they refused to hand over certain legislative powers. For example the
imprisonment of people accused or convicted of any breaches of Commonwealth Law
must be in State prison facilities, where the alleged breach had occurred. The
Commonwealth however had the powers to determine which particular State prison
system could be used if an alleged breach of Commonwealth powers was occurring
outside any particular State. As such, the detention of any refugees outside any particular
State territory (including its water (Sea) territories then the Commonwealth was to
determine which State prison the alleged offenders were to be placed. (The, so called,
Pacific solution as such was unconstitutional) the Migration Act determining that non-
citizens are to be placed in Commonwealth Detention Centres for this is also
unconstitutional, bot for using the term non-citizen and the provision for
Commonwealth Detention Centres. This, as the framers didnt want the
Commonwealth to have any legislative powers to enforce its own laws! Indeed, the
framers also made clear that the State Courts were to enforce Commonwealth Law and
only for so far it was not held by that State to be tyrannical powers by the
Commonwealth as otherwise the Court could use JURY NULLIFICATION, refusing to
convict a accused person.

22. The framers (again, as set out in my book) made clear that the Commonwealth would
have no powers to enter any state with its forces (being it ASIO, Australian Federal
Police, Army, etc) as the local law enforcement of a State were only so empowered,
unless upon request of a State government it was to deal with domestic violence (riots).
As such, it is essential to the citizenship that this remains in the hands of the States, as
 - 28 -
-

to prevent the Commonwealth to deny any citizen of its State laws. Otherwise,
extradition from one State to another could be circumvented by using the Australian
Federal Police and by this nullify State legislative provisions by a State to protect its
citizens!

23. That the following case law reference (quoted below) shows the gross misconception by
the Courts that it relies upon Australian citizenship purportedly granted by the
Commonwealth where none can be granted. The truth is that the framers made clear that
it would be beyond the legislative powers of the Commonwealth to legislate against
British subjects. The framers also made clear (as shown in my book) that a British subject
upon arrival obtains AUTOMATICALLY State citizenship and so
AUTOMATICALLY Australian Citizenship, and this without application. The High
Court of Australia misconceived that because Heather Hill applied for naturalization this
related to her Australian citizenship or her political rights. The Commonwealth had no
constitutional powers to declare British government an foreign power without first having
a Section 128 Commonwealth Constitution referendum.
The purported Australian Act, despite what the high Court of Australia stated, is and
remains UNCONSTITUTIONAL as the States could only refer legislative powers that
were within their own legislative powers and only if within their legislative powers the
relevant State could refer legislative powers. This Dr Quick (during the Constitutional
Conventions Debates) also questions being within the State legislative powers. The State
of Victoria has no legislative powers to refer its legislative powers to the Commonwealth,
and any purported reference of legislative powers is by this ULTRA VIRES. (As set out
in my book also!)

[210] (2001) 75 ALJR 1439 at 1458-1459 [110]; 182 ALR 657 at 682-683.

"A recent example of this process of the denotation of constitutional terms becoming
enlarged in the context of Australia's emergence as a sovereign state is Sue v Hill. In Sue v
Hill, the Court held that the term 'foreign power' in s 44(i) of the Constitution now includes the
United Kingdom although in 1901 and for long after the United Kingdom was not a 'foreign
power' within the meaning of that term. Consequently, the first respondent, Mrs Hill, who had
been born in England but had taken out Australian citizenship, was the subject of a foreign
power and incapable of being chosen as a member of the Senate. Three Justices of the
Court said [(1999) 199 CLR 462 at 496 [78]]: 'Whilst the text of the Constitution has not
changed, its operation has. This reflects the changed identity of those upon whose advice
the sovereign accepts that he or she is bound to act in Australian matters by reason, among
other things, of the attitude taken since 1926 by the sovereign's advisers in the United
Kingdom. The Constitution speaks to the present and its interpretation takes account of and
moves with these developments.'"

24. The Defendant did request, in writing, the Governor-General to withdraw the defective
writs issued on 8 October 2001 (setting out certain reasons), and issue valid writs, upon
this the Governor-General never responded. However, the issue is that the Defendant did
pursue matters to be corrected but cant be held accountable for any ignorance displayed
or perceived to be displayed by the Governor-General.

25. The Defendant did request, in writing, the Governor of the State of Victoria, to withdraw
the defective writs issued on 5 November 2002 (setting out certain reasons), and issue
 - 29 -
-

valid writs, upon this the Governor never responded, so far. However, the issue is that the
Defendant did pursue matters to be corrected but cant be held accountable for any
ignorance displayed or perceived to be displayed by the Governor.

26. The Defendant therefore having made request to the then Acting Prime Minister Mr John
Howard, the Australian Electoral Commission, the Governor General and through the
Federal Court of Australia made many attempts to seek to avoid this unconstitutional
debacle, but to no avail.

27. The usage of citizens in the following quotation appears to be more as if residents are
referred to as being citizens. After all, insurance companies would hardly restrict its
insurance coverage only to those declared citizens where the term citizen then was
not even defined by law!

HANSARD 12-9-1897

Mr. BARTON:
After the sub-section giving power to the Federal Parliament to legislate with regard
to banking, the incorporation of banks, and the issue of paper money, power is
proposed to be given to it to legislate upon insurance, including State insurance
extending beyond the limits of the State concerned. Where a State adopts a system of
State insurance, for instance, on lives, and where that State takes proposals, not only
from citizens within its own bounds, but accepts those emanating from citizens of the
Commonwealth beyond its bounds, then it is proposed that that insurance shall be
subject to the general provisions of the Commonwealth law on the subject, but where
the business is confined within the limits of the State carrying it on it is not proposed
to interfere with it. The sub-section following that dealing with naturalisation and
aliens originally read:

However, whereas the word citizen may or may not have been defined, and so its usage
was open to all to include or not include aliens, as their presence in a State would
hardly denied them insurance cover on the basis of lack of naturalization, and as such the
issue of citizenship was not a legal issue per se, until the Victorian Constitution
actually provided for the legal requirement of Australian citizenship as it is by this that
whatever informal meaning was applied to citizenship the State then took upon it that it
had to be a person in certain ways. However, the doctrine of Australian citizenship as
per Australian Citizenship Act 1948, did not in any way alter and neither could alter the
fact that the framers stipulated that one must have State citizenship to be able to obtain
Australian citizenship.
This means that even if the Australian Citizenship Act 1948 definition were to be
accepted, it still would not remove the fact that unless the State first grant State
citizenship, there is no way any person can obtain Australian Citizenship.
The framers made clear it was a DUAL CITIZENSHIP!
One cant simply not have a single citizenship within Australia as DUAL
CITIZENSHIP is the basic fabric upon which the political rights of any Australian
citizen is built.
 - 30 -
-

However, somehow most people (including lawyers and politicians, for so far they are
not the same identity) seem to have been misled that there was only the Australian
citizenship! Even that the Parliament legislated for DUAL CITIZENSHIP, where this
all along was applicable.
A State citizen from Victoria may become a resident of New South Wales, but maintains
State citizenship by virtue of birth in Victoria. The persons Australian citizenship would
not alter upon which State the person resides in, neither his/her political rights, unless so
dictated by the Commonwealth Constitution. The lack of any Statute to provide for any
person to apply for State Citizenship or otherwise to be granted State citizenship in
Victoria, albeit the Victorian Constitution demands Australian citizenship to be an
elector, means that not a single person could obtain Australian citizenship and so become
an elector until the Parliament of Victoria provides a Statute to obtain State citizenship of
Victoria.
However, as I contested the validity of the 30 November 2002 election for the State of
Victoria also, and so contested the validity of the electors since 5 August 2002, then the
current PURPORTED Victorian Government is no Parliament as all as its Members of
parliament were elected by electors who failed to have State citizenship and for this also
Australian citizenship!
It prohibits this unconstitutional Government to amend any constitution of Victoria, and I
see no other way out but that once the Australian Citizenship Act 1948 is declared to be
ULTRA VIRES in regard of citizenship, then the requirement of the Victorian
Constitution also becomes ULTRA VIRES. However, it remains the question, if this
redress the problem that at the time of the election having been held the purported
electors were not electors at all, for failing to have first State citizenship!
In any event, the purported electors, not being electors, neither then could be deemed
entitled within Section 41 to be electors to be entitled to vote in the 10 November 2001
Federal election. This applies not only to the purported Victorian electors but to all
purported electors of the States who place the prerequisite that a person is to be an
Australian citizen in accordance of the definition in the Australian Citizenship Act 1948.

28. That Throughout the Constitutional Convention Debates in 1891, 1897 and 1898 there
was an agreement that there would be no uniform criminal law, but that breaches of
Commonwealth law would be dealt with according to the State criminal laws of the State
where the alleged offence occurred. Albeit, The Commonwealth did enact the Crimes
Act, it remains ULTRA VIRES. In regard of claim against the Defendant of not voting,
there is clearly no constitutional powers for the Commonwealth to have the matter heard
within its own Criminal Act legislation, as it is ULTRA VIRES. Further, because of the
division in Writs being State for the Senate and Commonwealth for the House of
Representatives, then any Commonwealth claim against the Defendant must be limited to
the issue of House of Representatives election. Whereas the issue of alleged not voting
for the Senate, is one that is within the legal provisions of the State, being it a State writ
and State Proclamation needed to have an election for the Senate.

Hansard 11-3-1891

Mr. CLARK:
 - 31 -
-

My friend, Mr. Wrixon, said something about the desirableness of a uniform criminal
law, and while he was speaking I expressed the opinion that we should not have a
uniform criminal law. The hon. member invited me, I understood, to give some
reasons why we should not have it. I have placed my note upon criminal law under
the head of state interests, because I believe it comes under that head. It might be
desirable in some colonies or in some states, to make certain things crimes which it
would not be desirable to make crimes in other states. We know that in the American
union the eastern states are highly civilised, refined communities, advanced in
physical, intellectual, and artistic culture; while, on the other hand, the western states,
or the backwoods, as they are called, are in a very different position, politically,
socially, and intellectually. It might be necessary in some of the states to pass
stringent laws making certain things crimes which would not be so dealt with in other
states. Besides, we know that the law is often used as a means of effecting indirectly
some ulterior purpose, also for the purposes of class or special interests. The game
laws of England occupied in former years, and occupy now to a certain extent, a
foremost place in the provisions of British criminal legislation. We know what
detestable and abominable laws they were, and we know that they were introduced
not for the protection of life and property and individual liberty in the ordinary sense-
not for the same purpose as that for which you make murder or forgery a crime-but
for the conservation of certain class interests and class privileges. In America, in the
days of slavery, it was made a capital felony in some states to teach a negro to read or
write; and even at the present day, when slavery has been long abolished, the
marriage of black people with white people in some states is made criminal. Men
who have chosen to marry a mulatto or a quadroon have stood in the criminal's box
and have been sentenced as common criminals. Now, there was a time when the
slave power was so strong in America that it appeared to be about to transform the
whole union into its own hideous form and likeness, and, if the attempt had
succeeded, it would have been [start page 253] a most lamentable state of things to
have the laws which would have been then enacted in force throughout the whole of
the Union-in Massachusetts, in the home of the pilgrims, as well as in Louisiana. We
do not want to run that risk. Do not let us, therefore, have a uniform criminal law, but
let each state have its own law.

Again;

Mr. CLARK:
Do not let us, therefore, have a uniform criminal law, but let
each state have its own law.
Hansard 2-3-1898

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

Mr. BARTON.-No; because you do not give any power with regard to
punishing crime to the Commonwealth
 - 32 -
-

However, we find that people are even imprisoned, without charge, by the
Commonwealth by a lack of the States and/or the judiciary to appropriately apply the
constitutional limitations of the Commonwealth Constitution!

29. That in my view the conduct of the Plaintiff (and so also of those acting under his
authority,) as some referred to above, is jeopardising the security of our democratic
society and a gross and utter and blatant disregard for the various legal and
constitutional provisions of the applicable Constitutions, Statued law (State and/or
Commonwealth) and Case Law and must neither be condoned or accepted to be
allowed to continue in any part thereof and for this the applicant urge the Court to
make the finding, declarations etc. as sought hereunder as to the conduct of the
Plaintiff in general and each item on its own or in combination is/are a breach of
constitutional power etc.

30. That I also seek to rely upon the following quotations;

Hansard 27-1-1898

Mr. BARTON.-If a state Parliament wants to shirk its responsibility it can fall
back upon the referendum.
[start page 223]
Mr. ISAACS.-With regard to the other point that a state may repeal a law, I do not
agree with that argument. If a state refers a matter to the Federal Parliament, after
the Federal Parliament has exercised its power to deal with that matter the state
ceases to be able to interfere in regard to it. Moreover, when the Commonwealth
has passed a law at the request of any Parliament or Parliaments, and the
Parliament of a third state adopts it, it adopts a Commonwealth law, and it
requires the consent of the Commonwealth to get rid of that law. In my opinion,
there is no power of repeal with the states, and I feel no doubt that I have read
among the decisions of the United States, one which is to the effect, although I
cannot just now lay my hands upon it, that when a state has, with the consent of
Congress, made certain enactments the power of Congress is required to repeal
those enactments.
Mr. REID.-Otherwise the provision would be perfectly idle. A state would refer a
matter to the Commonwealth, and, not being pleased with the precise manner in which
that matter was dealt with, it would immediately repeal the law.
Mr. ISAACS.-Yes; the state might just as well pass the law for itself.
Mr. OCONNOR.-A law once passed under this provision becomes a federal
law.
Mr. ISAACS.-Yes, and nothing less than the federal authority can get rid of it.
Mr. BARTON (New South Wales). With regard to the particular sub-section which
we have now in hand, I have not been brought to see that any dangerous power is
 - 33 -
-

given in it, or that there is any reason for an alteration. Let us take first the suggestion
of the honorable and learned member (Mr. Deakin). The Federal Parliament can only
deal with such matters as a state or states refer to it. A state may refer to the Federal
Legislature a certain subject without referring, or expressly excepting from the
reference, any financial dealing with that subject. In such a case the Commonwealth
could only legislate upon the subject so far as its financial aspects were not concerned.
If the whole subject were referred, not excepting finance, the Commonwealth could
legislate to the whole extent of the reference. I think that the words used in the sub-
section are ample for either case. The difference with regard to sub-section(3)is this: It
is plain that that sub-section refers only to the raising of money by any mode of
taxation for general Commonwealth purposes. Like all the rest of these sub-sections,
with the exception of one or two which contains special provisions, it concerns matters
relating to the peace, order, and good government of the Commonwealth," and the
word Commonwealth" means prima facie the whole Commonwealth. In this sub-
section, however, there are special words which prevent the law applying to the whole
Commonwealth, and these are the words quoted by the honorable and learned member
(Mr. Deakin):-
But so that the law shall extend only to the state or states by whose Parliament or
Parliaments the matter was referred, and to such other states as may afterwards adopt
the law.
It seems to me that if there is any raising of money intended by the states to be
delegated to the Commonwealth-and they can only delegate their legislative authority
to a certain extent, provided for by the Constitution-that will be expressed in the
reference, or it can be excluded from any reference. In the one case or the other the
Commonwealth can only proceed as far as the extent of the reference. Then there was
the objection of the honorable and learned member (Dr. Quick), that this
provision affords an easy method of amending the state Constitution without the
use of the referendum. But at the present time the state Constitutions do not provide
for the use of the referendum. The government of the states is by a majority of the
representatives of the people, and it must [start page 224] be constitutionally assumed
that when a majority of the two Houses of Parliament make a law the people speak
through that law. If the people choose to speak through a law made in this way, there
is no evasion of responsibility when an appeal was made to a superior authority for the
settlement of a difficulty incapable of settlement by the relations of two bodies at
issue. This is not a restriction but an enlargement of the legislative powers of the
states, which I think is in the spirit of democracy, and one that we should grant.
Mr. HOLDER (South Australia).-I want to ask the leader of the Convention a
question, his answer to which will influence my vote on the subject before us. The
sub-section upon which we are dealing and the following sub-section are the only
ones which provide for an extension of the powers of the Commonwealth. I have
been looking up the clauses in Chapter VIII., and I do not see that under them
any extension of the powers of the Commonwealth can be dealt with. I want to
know whether I am right in supposing that under these clauses no extension of
the powers or scope of the Commonwealth would be possible, because I think that
under that chapter, if any alteration of the Constitution of the Commonwealth is
 - 34 -
-

desired, the states, to obtain it, must first-have a law passed by the
Commonwealth Parliament? Now, suppose it is proposed to enlarge the power of
the Commonwealth, by placing under its control the administration of Crown
lands. First of all, the Federal Parliament would have to pass a law upon this
subject, and that law might be held to be ultra vires. There would be no power to
submit anything to the electors without Parliament first of all passing a Bill,
which, however, would be from the outset outside its power. I should like to know
from the leader of the Convention whether my view of this matter is correct?
Mr. BARTON (New South Wales).-What I understand my honorable friend (Mr.
Holder) to ask is this: Suppose it were desired that extra-legislative power than now
exists should be granted to the Commonwealth-as, for instance, to take under its
control questions relating to Crown lands, and so on-whether an alteration in the
Constitution in that direction would be ultra vires? Now, the Bill provides, in Chapter
VIII., that the provisions of the Constitution shall not be altered except in the
following manner;" which, to my mind, means that if the processes specified are
adopted the provisions can be altered in any way. I take the provision to mean that
authority is given to the Commonwealth under the processes here specified to alter this
Constitution in any manner, so far as it deals with the affairs of Federated Australia,
and not with affairs outside the dominion of Australia. 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. So that
not only the Commonwealth but the states would have to
agree to the passage of the law. Then any objection to that law becoming
a new part of the Constitution of the Commonwealth would vanish; because, I think,
so much authority is conceded by Chapter VIII.

And;
Mr. DEAKIN.-My point is that by the requests of different colonies at different
times you may arrive at a position in which all the colonies have adopted a particular
law, and it is necessary for the working of that law that certain fees, charges, or
taxation should be imposed. That law now relates to the whole of the Union, because
every state has come under it. As I read clause 52, the Federal Parliament will have
no power, until the law has thus become absolutely federal, to impose taxation to
provide the necessary revenue for carrying out that law. 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.

What is very important are the wording;

 - 35 -
-

Mr. BARTON.-If a state Parliament wants to shirk its

responsibility it can fall back upon the referendum.

It relates to a state Parliament and referendum, as such a referendum is needed to

accept a State to have accepted it reference of Power.

Also;

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. So that not only the
Commonwealth but the states would have to agree to the passage of the law.

Albeit, a State can adapt a Commonwealth law that is validly enacted within the
Commonwealth Constitution, the reference of power however is limited, where it is to
create legislative powers that doesnt exist previously So that not only the
Commonwealth but the states would have to agree to the passage of the law.. As
such, it is not an issue for the Commonwealth to legislated on any matter referred to it
unless by way of referendum this was accepted. The Victorian purported reference of
powers Commonwealth Powers (Family Law- Children) Act 1993 No.92 of 1986 the
Mutual Recognition (Victoria) Act 1993 were never approved by way of referendum and
are NOT AT ALL part of the Constitutional powers of the Commonwealth albeit so
claimed in prints of the Commonwealth Constitution.

On 7 and subsequently on 21 October 1986 the Legislative Council passed the

Commonwealth Powers (Family Law - Children) Act 1986 No 92 which was Gazetted
on 16 December 1986 and came into force on 28 October 1987. Version 010 being:

s. 4
The Governor in Council may, at any time, by proclamation published in the
Government Gazette, fix a day as the day on which the reference under this Act
shall terminate.

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.

Version No. 010

Commonwealth Powers (Family Law--Children) Act 1986
Act No. 92/1986
 - 36 -
-

Version incorporating amendments as at 14 July 1997

This Version incorporates amendments made to the Commonwealth Powers
(Family Law--Children) Act 1986 by Acts and subordinate instruments.

The Victorian Parliament has PURPORTEDLY amended this legislation of the

Commonwealth Powers (Family Law - Children) Act 1986 No 92 totally unaware what
the true reference of legislated powers possibly could mean! It purports to refer
legislative powers and withdraw it as it please! It was however never accepted by any
referendum on the first place!

GLEESON J as a judge in the corium in of the Full Court of the HIGH COURT OF
AUSTRALIA in HCA 27 of 1999 under point 31 had this to say:

..I held that State Parliaments had no power to vest State Judicial power in
federal courts created by the Parliament of the commonwealth and that the
parliament of the Commonwealth had no power to consent to State Parliaments
vesting State Judicial power in the federal courts.

I view, that likewise the States have no constitutional powers to vest the Commonwealth
with legislative powers or the commonwealth to consent to accept legislative powers
within Section 51(xxxvii) of the Commonwealth constitution unless the State constitution
provides for such reference of legislative powers and also such reference of legislative
powers has been approved in accordance of the provisions of Section 128 of the
Commonwealth Constitution by way of referendum, as well as that both the States (and
so those voting in the referendum) and the Commonwealth have been aware that this
reference of legislative powers is one of a permanent nature, after which the relevant
State referring the legislative powers for ever has lost future legislative powers either to
rescind, amend or otherwise alter any legislation the Commonwealth may provide upon a
successful referendum.

The Victorian Constitution under s16 provides that The Parliament shall have power
to make laws in and for Victoria in all cases whatsoever. As such, this clearly exclude
any reference of legislative powers from the State of Victoria to the Commonwealth!
After all, to refer legislative powers means the State no longer has it, and that breaches
the provisions of s16!

31. That albeit the Victorian Constitution refers to the Australian Citizenship Act 1948, no
specific legislation appears to be in place as to formally adopt this Commonwealth
legislation.

32. That during the Constitution Convention Debates, the framers made it very clear that
commonwealth law was to be enforced within the States by State Courts and using State
Crimes Act and outside the borders of the States it would be the British criminal laws that
were applicable on the ships of Great Brittain. Albeit the British ships no longer are
applicable and so a vacuum exist as to the lack of British criminal law, without any
amendment of the Commonwealth Constitution to include such powers, the
 - 37 -
-

Commonwealth cant for itself take on certain legislative powers which specifically and
deliberately were denied to the Commonwealth!

33. That the Australian Act is and remains unconstitutional, as it was not within the
legislative powers of each of the States to legislate for the Australian Act for themselves,
and as such cant purportedly refer powers not within its own legislative powers. Further,
any reference of legislative powers is conditional upon being accepted by way of Section
128 Commonwealth Constitution referendum before being valid in law.

Hansard 27-1-1898

Mr. BARTON.-Ifa state Parliament wants to shirk its

responsibility it can fall back upon the referendum.

34. That if the Proclamation signed by the Governor General on 5 October 2001 but firstly
published on 9 October 2001 was defective and so ULTRA VIRES in regard of Prorogue
the Parliament and dissolving the House of Representatives, then all seats must be
deemed vacant, by virtue of Section 20 & Section 38 of the Commonwealth
Constitution, as none of the members of either House attended for the remaining 3
months of sitting days.

35. That I must set out that despite Constitutional limitations the Commonwealth has set up
its own Minister for Education and other matters and unconstitutionally uses that against
the States. The point being, that no matter what the Commonwealth may legislate, being
it Australian Citizenship Act 1948, or other Commonwealth legislation, if it aint within
the constitutional powers it aint worth the paper written on it!

Hansard 1-3-1898
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.

36. That likewise makes clear, that conduct of ASIO, and Australian Federal Police, are not
justified and not within the Commonwealth Constitution, albeit States tend to ignore
this. It doesnt make it Constitutional valid, as like the Australian Citizenship Act 1948
where it is beyond the constitutional powers of Commonwealth then it is ULTRA
 - 38 -
-

VIRES. As such, each and every unconstitutional power exercised will not by mere
passing of time make it lawful, or constitutional valid. The only manner in which to have
it become valid is to have the Commonwealth Constitution amended by referendum, and
then
Hansard
Mr. DIBBS:
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.

And;
Our own police are quite sufficient for the preservation of order within.

37. That I seek this Court to adjourn these proceedings and to place before the HIGH
COURT OF AUSTRALIA a CASE STATED as to have the High Court of Australia to
first determine the following matters;

(i) Can a person obtain Australian citizenship without first obtaining State
citizenship (Quasi States being Territories included)? If so, then by which
constitutional valid manner?

(ii) Does the Commonwealth have constitutional powers to define citizenship? If

so;
(a) under which provision? And
(b) in regard of aliens and immigrants; or
(c) in regard to any person within (b), as well as and including those born
within Australia?

(iii) Does the Commonwealth have constitutional powers to declare and/or grant
citizenship? If so,
(d) under which provision? And
(e) in regard of aliens and immigrants; or
(f) in regard to any person within (b), as well as and including those born
within Australia?

(iv) Does the Commonwealth have the constitutional powers to determine the rights of
a resident in a State to obtain citizenship of such State? If so, by which
constitutional powers?

(v) If the adaptation by the State of Victoria of the Australian Citizenship Act 1948
were to be deemed valid, then has the Commonwealth by this the legislative
powers to determine the political rights of the citizens of the State of Victoria,
where purportedly they have no State citizenship. If yes, would then the
Commonwealth be able to dictate who shall be electors by what conditions and
override any Constitution provision that may exist within the Victorian
Constitution?
 - 39 -
-

(vi) Where the Constitution of Victoria purports to adapt the Australian Citizenship
Act 1948, is then that part of the Victorian Constitution Federal law and can only
be amended or otherwise altered by Commonwealth legislation?

(vii) If the Australian Citizenship Act 1948 is ULTRA VIRES for so far it deals with
granting citizenship to any particular person, can then the adaptation of this part
by State nevertheless be held legally enforceable?

(viii) If the purported granting of Australian citizenship within the Australian

Citizenship Act 1948 is ULTRA VIRES, then is any State qualification based
upon the Australian Citizenship Act 1948 definition of Australian citizenship also
ULTRA VIRES?

(ix) Where the Defendant was not a State citizen at the time of election being held,
then was the Defendant nevertheless a qualified State elector, where the purported
Australian citizenship granted to the Defendant on 28 March 1994 was ULTRA
VIRES.

(x) Where the Defendant was not a State citizen at the time of election being held,
then was the Defendant nevertheless a qualified Commonwealth elector, where
the purported Australian citizenship granted to the Defendant on 28 March 1994
was ULTRA VIRES.

(xi) Was the Proclamation signed on 5 October 2001 by the Governor General for the
Prorogue of the Parliament and the Dissolution of the House of Representatives
legally applicable;

(a) On 9 October 2001, when the first Special Gazette S421 was first published
in Canberra, but only in Canberra, and/or
(b) On 9 October 2001, in all States and Territories irrespective if Special
Gazette S421 was not published in any particular State/Territory, and/or
(c) On 10 October 2001, when Special Gazette S421 first published in the State
of Victoria?

(xii) Was the Proclamation signed on 5 October 2001 by the Governor General for the
Prorogue of the Parliament and the Dissolution of the House of Representatives
legally applicable at all, where the date of the purported Prorogue and the
dissolution had occurred on a previous day? If it was valid from the time and day
of actual publication then;
(a) If it was valid from the time and day of actual publication then, were both
prorogue and dissolution occurring instantly at the same time at
commencement of the day, 00.01 AM on 9 October 2001 and/or
(b) Was the Prorogue of the Parliament valid, but not the Dissolution of the
House, where the latter one was to occur on 8 October 2001, AFTER the
Prorogue of the Parliament, and for this could not occur. And/or
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(c) Was the proclamation valid, as to be a proclamation, but not for the date and
time of the events to occur, as a subsequent amendment Proclamation was
required, to provide date and times for the prorogue of the Parliament and the
dissolution of the House of Representatives to be applicable AFTER the date
and time of actual publication of the subsequent amended proclamation?

(xiii) Where the writs were issued by the Governor-General using the wording
according to law but the Australian Electoral Commission had not drafted the
writs according to law can it be held that the writs therefore were defective and
so null and void?

(xiv) Can the Australian Electoral Commission lawfully act outside the provisions of
Section 7 of the Commonwealth Electoral Act 1918 to;
(a) act in breach of the Commonwealth Constitution and any legislative
provisions in regard of State legislative provisions regarding Senate
timetables? And/or
(b) act in breach of the legislative provisions of the Commonwealth Electoral
Act 1918 to hold elections in a manner of election timetable not being as
legislated.

(xv) Is the legal obligation of the Australian Electoral Commission to first act within
the legal provisions of the Commonwealth Electoral Act 1918, and must return
any defective writ issued by a Governor-General and/or Governor with a request
to correct any offending parts and reissue the Writ(s)?

(xvi) Can the Australian Electoral Commission be excused from non-compliance with
statutory legal requirements, upon the basis of the writs being issued as to a
certain timetable, irrespective that the Australian Electoral Commission
caused/created the writs be issued defective?

(xvii) Where the Special Gazette doesnt contain the wording Government printers, or
any simular wording, is it then that the judicial notice required by the Act
Interpretation Act 1901 is not applicable?

(xviii) Where the Court of disputed returns fails to have any judicial powers to deal with
more then one poll, and the Defendant sought to have the Federal Court of
Australia to deal with numerous matters of numerous polls, including injunctions
against the Australian Electoral Commissions conduct to hold a poll in breach of
constitutional and legislative provisions, then was the Federal Court of Australia
the appropriate Court to deal with the matters?

(xix) Where the defendant is contesting the validity of the purported 10 November
2001, and has pending proceedings outstanding prior to the purported 10
November 2001 elections being held, then is the Defendant entitled then not to
vote in such purported election in that it would undermine his case outstanding at
the time before the Courts?
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(xx) Does the Commonwealth have legislative powers in regard of (commonwealth)

Crimes Act where the framers of the Commonwealth Constitution specifically
ruled that the Commonwealth would not have constitutional powers for Criminal
law legislation as in the States the State criminal laws would be applicable, and
beyond the States borders it would be the British crime laws that would be
applicable?

(xxi) Can the issue of not voting be pursued within the (Commonwealth) Crimes Act,
where the issue of any elector voting is confidential?

(xxii) When the relevant legislation to any election states shall not be less than, is
then the number of days referred to held to be clear days between the events
referred to?

(xxiii) Where the relevant Act stipulates a minimum days, such as using the wording
shall not be less than in relation to enrolment and/or nomination of candidates,
must then the elector or a person entitled to be an elector have access to enrol or
to nominate for each of the shall not be less than number of days provided? If
not, could effectively the electoral commission close its doors for most if not all
of the days by this in effect nullifying the Statutory provision?

(xxiv) Can the Commonwealth Electoral Commission exercise any powers within
Section 7 of the Commonwealth Electoral Act 1918 in regard of holding any
Senate election in breach of the legislative provisions of the relevant State , upon
writs that were issued defectively by a Governor of a State having been the
product of false and misleading details to advise the public, the government and
the Commonwealth about the true nature and its application of legislative
provisions?

(xxv) Were the Candidate handbooks containing false and misleading

details/information, where it quoted the incorrect State legislation purporting to be
Senate legislation of the States denying electors/candidates for the Senate a FAIR
AND PROPER election?

(xxvi) Were the Candidate handbooks containing fair and misleading timetables as to the
relevant legislative provisions of each State in regard of Senate elections denying
electors/candidates for the Senate a FAIR AND PROPER election?

(xxvii) Was it lawfully within the powers of the Australian Electoral Commission to deny
people to be accepted as candidates for Senate election, despite that such person
within its State legislative powers still had up to 2 days of nominations left,
because of the defective writs stating otherwise?

(xxviii) Were the Senate elections (its polls) held on 10 November 2001 FAIR AND
PROPER?
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(xxix) Were the House of Representatives elections held on 10 November 2001 FAIR
AND PROPER?

(xxx) If the Proclamation signed by the Governor General on 5 October 2001 but firstly
published on 9 October 2001 was defective and so ULTRA VIRES in regard of
prorogue the Parliament and dissolving the House of Representatives, then were
all seats vacant by virtue of Section 20 & Section 38 of the Commonwealth
Constitution, where not a single member attended to the last 3 months of sitting
days?

(xxxi) Where the framers held that political rights are obtained arise by virtue his
being a citizen of a state there is dual citizenship being both State
citizenship and Australian citizenship, then can the Commonwealth, for so far
this is deemed to be within its legislative powers grant any person Australian
citizenship and so political rights of voting (See section 41 Commonwealth
Constitution) in Commonwealth elections? If such voting rights in
Commonwealth elections cant be given is that then a bar to granting Australian
citizenship?

(xxxii) Does a person upon obtaining State citizenship AUTOMATICALLY obtain

Australian citizenship? If not, why not?

(xxxiii) Can the Commonwealth constitutionally use its own electoral roll and by this
deprive any person entitled to be an elector to be denied the right to vote, for
whatever reason by not being on the Commonwealth electoral roll, even so the
person is an elector on a State electoral roll?

(xxxiv) Can the lawfully Commonwealth Electoral Commission conduct State election or
be involved with State elections (other then Senate elections) where such is
beyond the constitutional provisions of the Commonwealth Constitution?

(xxxv) Was any writ, issued by the Governor-General, in conflict to legislative

provisions of the Parliament, defective and so ULTRA VIRES?

(xxxvi) Was any writ, issued by a Governor of a State, in conflict to legislative provisions
of that State, defective and ULTRA VIRES?

(xxxvii) Is the Officer in Charge required to mark of each elector voting for having
voted at each election separately?

(xxxviii) Is it valid in law for the AEC to force a person to vote at the same time for
both the Senate and House of representatives, or is an elector entitled to vote at
separate occasions for each House, within legislated provisions?

Dated the 3rd of Day of December, 2002 (Signed, the Defendant)