130719-R Clark Attorney General & Others-Re COMPLAINT-Sheriff-CONTEMPT of COURT-Etc

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Mr Robert Clark MP Attorney-General robert.clark@parliament.vic.gov.au
19-7-2013
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Cc: D. Napthine MP Premier of Victoria denis.napthine@parliament.vic.gov.au Brendan Facey Director, Infringement Management & Enforcement Services (Sheriff) Brendan.Facey@justice.vic.gov.au Ian Grey Chief Magistrate, Magistrates Court of Victoria 10 233 William Street Melbourne Vic 3000, C/o help@magistratescourt.vic.gov.au M Hoyle, Quality and client support Coordinator Civic Compliance Victoria GPO Box 1916, Melbourne VIC 3001 Traffic_Inquiries@tenixsolutions.com
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Mr G. H. Schorel-Hlavka, MAY JUSTICE ALWAYS PREVAIL Email: mayJUSTICEalwaysPREVAIL@schorel-hlavka.com
COMPLAINT
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Re: -Sheriff-CONTEMPT OF COURT etc
Sir, I received a correspondence purporting to be from the Sheriff's Office that the registration of my vehicle 1989 Mitsubishi will be prevented from renewal, in regard of Obligation Number 1106575301.
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The picture above clearly indicates in the letterhead that the INFRINGEMENT COURT is under the emblem of the Magistrates Court of Victoria
30Below, it is shown that the appeal to "revoke/cancel" the order was refused by the Infringement Registrar. As shown below I applied for a "review" which in regard of a Chapter III of the (federal) constitution court must be an "open court" with a review before a judge, not a registrar.
Dimes v. Proprietors of the Grand Junction Canal (1852) 3 II,L.C. 759
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Page 1 of parts 1 & 2 19-7-2013 Re: COMPLAINT -Sheriff-CONTEMPT OF COURT etc INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati
Page 2 QUOTE The fundamental rule of English (Australian) law is that " No man can be a judge in his own case ". It has long been held that if there is bias or the appearance of bias such as to deny justice or create the impression that justice has not been done, then that bias, or apparent bias, is sufficient to invalidate the decision of 5 those who made the decision. END QUOTE Reg v. The London County Council (1894) XI .L.R. 24 Sharp v. Carey (1897) 23 V.L.R. 248 Austin Digest 17. Reg. v. Moleswort (1893) 23 V.L.R. 582 Austin Digest 17. 10 Black v. Black (1951) N.Z.L.R. 723 Ex Parte Blume (1958) W.N. (N.S.W.) 411Austin Digest 93,339,457,458
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This notice clearly purports that the INFRINGEMENT COURT is part of the Magistrates Court of Victoria. 5
Above shows that there was 1 point applied against my drivers license, and for what? After all, I requested a "review" of a registrars decision and was entitled to have this heard before a magistrate, yet instead I am given a penalty without conviction. meaning the police are the once 10issuing the Infringement Notice and who are applying the 1 point penalty! Judge, Jury and Executor mentality!
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The purported police unsigned correspondence actually was sent out by VicRoads. As such we now have VicRoads parading as the Police. Is this not a criminal offence, to impersonate a police 5officer? Is it not a criminal offence for anyone to impersonate to be part of the Magistrates Court of Victoria? As shown below the envelope is that of the Magistrates Court of Victoria. therefore it is purported to be of the Magistrates Court of Victoria.
THIS IS THE END OF PART 1 OF 2 AND CONTINUE WITH PART 2 OF 2 (For email purposes this 10document has been divided in 2 parts but should be read as one document!)
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Page 7 THIS IS THE COMMENCEMENT OF PART 2 OF 2 (For email purposes this document has been divided in 2 parts but should be read as one document!)
5As is shown in the Authority reproduced below, the Magistrates Court of Victoria is a Court within Chapter III of the constitution, meaning, it has been provided with federal jurisdiction. the issue therefore is if the (purported) Infringement Court is part of the Magistrates Court of
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Victoria (This appears not to be so considering the way the Infringement Act 2006 and a magistrate referred to it) or it is an " illusion", created by the legislation that such non-existing court exist but is not and cannot be deemed to exist as part of the Magistrates Court of Victoria. If it doesn't exist as Part of the Magistrates Court of Victoria then the issue is can it be a so to say 5Court of Law?
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So, now the Sheriff's Office came into play with a warrant. However no signature is provided, not a copy of the warrant who actually issued it. As such, it must be clear I am basic ally prevented from challenging the validity of the warrant because unless and until I have been provided with the relevant details I am in no position to challenge anything. As such I am denied 5DUE PROCESS and NATURAL JUSTICE. I will now quote my 26-10-2011 correspondence to the Chief Magistrate of the Magistrates Court of Victoria
QUOTE 26-10-2011 CORRESPONDENCE
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WITHOUT PREJUDICE
Mr Grey Chief Magistrate, Magistrates Court of Victoria Ground Floor, 277 William Street Melbourne Vic 3000 C/o help@magistratescourt.vic.gov.au
26-10-2011
15C/o
Mr Robert Clark MP Attorney-General robert.clark@parliament.vic.gov.au Ted Baillieu Premier of Victoria ted.baillieu@parliament.vic.gov.au
Sheriffs Office, 277 Williams Street, Melbourne C/o Mr Robert Clark MP Attorney-General
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Acting Chief Commissioner of the Victorian Police C/o heidelberg.uni@police.vic.gov.au C/o Victoria Police Centre, G.P.O Box 913, Melbourne, VIC, 3001, AUSTRALIA Civic Compliance Victoria GPO Box 1916, Melbourne VIC 3001 Traffic_Inquiries@tenixsolutions.com
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Gary Liddle Chief Executive & Others, Vicroads C/o robert.clark@parliament.vic.gov.au
Ref: COMPLAINT & DEMAND to clarify - etc

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Sir, I am aware that the courts do not fall under the provisions of the FOI Act (Freedom of Information Act) and so I shall not bother you with any FOI Act request just DEMAND that you provide me with relevant details and information! 35. Obviously I am acute aware you may just refuse to provide the information but as it is in law when a person remains silent with criminal conduct perpetrated by another then by this silence the person can be deemed to be in conspiracy and can be held legally accountable. . 40Way back in 1985 a judge then already gave me the nick name TRAPDOOR SPIDER where I would cross-examine a witness and would not give in until I got the truth out. As such if you think that remaining silent is going to save your neck then keep in mind it rather will be the opposite.
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45QUOTE Sorell v Smith (1925) Lord Dunedin in the House of Lords In an action against a set person in combination, a conspiracy to injure, followed by actual injury, will give good cause for action, and motive or instant where the act itself is not illegal is of the essence of the conspiracy. END QUOTE
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The issue is first of all that it appears to me that you have allowed some unregistered business entity to use and abuse the Courts facilities and by this impersonating court official documents and persons and this I view is a very serious matter. I will set out some of it below.
55.
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Where is the legislation referring to CCV I may well ask? Below we see signatures A, B, and C. I received signature A (12 August 2011) from another person and signature B (27 July 2011) is 5on a document I received purporting both to be from the Infringement Registrar. As the document containing A was scanned in by another person I had to use this as the size and increased by 200% the signature I had scanned in and they are a perfect match See C for this! .
10 Now here we have both signatures and they fit together nicely meaning that the Infringement Court signatures are a fraud as they are not original signatures at all but some signature stamp or other graphic copy of an original signature that anyone can use. And 15this is what Vicroads relies upon in its 22July 2011 correspondence being from the Infringement Court? While with electronic filing it is accepted that a person use a computer signature (electronic signature) see also http://openjurist.org/422/f3d/540/johnson-v-cherry-j 422 F. 3d 540 20Johnson v. Cherry J for court filing purposes however not for ordinary material such as hardcopies forwarded out by the court to parties as those must use original signatures in inkt as to prevent fraudulent copies being issued. It appears to me that CCV also being Civic Compliance Victoria a not registered business entity is using court computers to falsily produce court orders and warrant issues and have people 25believe they are valid court orders. Moreover had someone as a Sheriffs Office sending unsigned correspondences about warrant issue. And more over use this then to also have Victoriads supending driver license and registration, etc.
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As with any court order/warrant issue a party subjected to such an order/warrant issue is entitled 30to be made aware of the identity of the judicial officer who issued this. The title is simply not good enough. Hence I DEMAND that you provide me with all relevant details of the person who paraded as Infringement Registrar to whom this signature belongs.
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People are as I understand it even committing suicide when their lives are destroyed because 35o\their license was suspended and by this they lost their earning capacity and so their ability to pay their bank loans, etc, and so if you have any crazy ideas that I will let you off then you are seriously mistaken because I just dont like it when those who are in an office neglect to act responsible. And the same is for anyone else involved in this filthy conduct to extort monies of people and hold them at ransom in such utter disgraceful manner.
40.
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In my view you would do better to investigate who is using the purported signature of an Infringement Registrar who obviously is not personally signing all the documents as clearly where two people at different times receive identical signatures then obviously there has to be the usage of an electronic signature which invalidate the purported order as it must be an official 5signature, and not one that Civic Compliance Victoria use by computer print out. As the court in Johnson v. Cherry J made clear that the overlay of the signatures showed to be exactly the same then it had to be a copy of one signature. As I also indicated in the past any court judicial decision must be in open court where it is dealing with evidence and clearly the Infringement Registrar being nothing more but computer 10generated court orders/warrant issues is therefore without legal force.
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Again, consider the people you may have participated in driving them into suicide because you stood by to allow this gross abuse of the Courts system!
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15Ordinary judicial officers cannot be sued unless you can show malice and acting without jurisdiction. Well, as I view it the conduct is with malice and no jurisdiction exist to issue in chamber computer generated orders on basis of alleged evidence! The purported Infringement Act 2006 is so to say certainly not going to save your neck!
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20 At the left it clearly shows:
So here we have it that the non registered business entity Civic Compliance Victoria is the 25Traffic Camera Office, the Infringement Court and also the Sheriffs Office and that clearly cannot be because of the constitutional required separation of powers of the Courts!
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As such the advise or instructions of the Infringement Court are not worth the paper it is written upon and I view Vicroads unlawfully applied demerit points upon the say so not of the Infringement Court itself but of Civic Compliance Victoria unlawfully using court identity. . 5What appears to be is that we are dealing with computer generated notifications that has in it already the signature of a person purportedly being an Infringement Registrar and one may even ask the question if this person is still alive, or perhaps already death and buried but no one would ordinary be the wiser for it because the signature doesnt show any type written identity with it. As such it seems to me another elaborate con-job. And you have so to say been led by the nose 10with this! And what is your pay that you say you earned? Or would it better be to say you didnt really earn it at all?
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I have not as yet checked out other documents but I have no doubt that I am bound to obtain more documents with signatures that too are not original signatures.
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One also has to ask what has Civic Compliance Victoria to do with the matter where the Traffic Camera Office is supposed to be the enforcement agency?
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As the Johnson v. Cherry J made clear a smear test no not a pap smear test for women but a 20smear test to check if the Infringement Registrars signature is an ink signature being an original signature is actually so can always be done.
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I wonder what kind of KANGAROO COURT and STAR CHAMBER COURT system are you running when you allow this kind of elaborate nonsense to be part of the Magistrates Court 25of Victoria? . My wife is turning 79 in a few weeks and partial blind and she is scared like hell that some idiot is parading as a sheriff to wheel lock our vehicle because you cannot manage to so to say wipe your bum because you have failed to take any proper action to stop this kind of rot to continue. Is 30this going to be part of your resume that you pride yourself scaring old ladies?
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How dare you to allow this kind of corrupt system to go on and on?
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I can assure you that I am inviting others to forward to me their material so I can build an 35extensive case against you and others all involved in this elaborate scam.
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Dont you have any pride in upholding the Courts integrity?

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Show me where in any legislation is it shown that Civic Compliance Victoria is part of the 40Magistrates Court of Victoria? Where is it shown that it can impersonate judicial officers? Where is it shown it can impersonate a Sheriffs Office?
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Have you totally lost any dignity to uphold democracy and now are a wimp who will cave in on any demand to please the government?
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In my view all and any purported Infringement Registrar issued orders should all be declared invalid and without legal force because once you allowed the integrity of the Magistrates Court of Victoria to be placed in question then not a single order or warrant issue by the purported Infringement Registrar can be deemed valid in law.
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And you may find that you could be personally sued by many, being it a class action or otherwise, as where you acted with distain of the integrity of the Magistrates Court of Victoria then forget about its protection also.
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I do not know if so to say you got your law degree for free with purchasing a packet of margarine or else but rest assure that competence isnt holding a law degree but rather to be able to act appropriately when required as to once profession and position. As I view it as Chief Magistrate you have an obligation to avoid any abuse/misuse of the Court processes and this I view you fail 5to do.
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Hansard 1-3-1898 Constitution Convention Debates QUOTE Sir JOHN DOWNER.I think we might, on the attempt to found this great Commonwealth, just advance one step, not beyond 10 the substance of the legislation, but beyond the form of the legislation, of the different colonies, and say that there shall be embedded in the Constitution the righteous principle that the Ministers of the Crown and their officials shall be liable for any arbitrary act or wrong they may do, in the same way as any private person would be. END QUOTE
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I for one hope that where someone has committed suicide because of the harm caused upon this person as result of the misuse/abuse of the court legal processes by way of the Infringement Registrar then they sue the hell out of you in personal capacity as a warning to others never ignore your laid up duties and obligations!
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I DEMAND TO KNOW what is the identity of the alleged person who purportedly signed as Infringement Registrar, and if the signature is an electronic signature or not! Also who issued the warrant against me and I am entitled to a reason of judgment as to why the warrant was issued!
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25Do consider that if you allow access by the so called Civic Compliance Victoria to Court computer system or its data then you may commit serious offences! . I still have had no response to my previous request when was there an open court hearing regarding the warrant issue, etc?
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In my view you ought to resign forthwith so another person who shows to care and willing to check legal issues can take over and do a better job.
MAY JUSTICE ALWAYS PREVAIL

35.
( Awaiting your response,
Our name is our motto!)

G. H. Schorel-Hlavka
40END QUOTE 26-10-2011 CORRESPONDENCE
As I grew up in The Netherlands and my native language being Dutch, and I neither had any formal; education in the English language (hence my grammatical errors - as you may have
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noticed from the above writings already), I am so to say severely disadvantages, as I neither had any formal education in law! Albeit, I am a CONSTITUTIONALIST. The Framers of the (federal) Constitution within which in section 106 the States were created had 5this to say:
Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. ISAACS.We want a people's Constitution, not a lawyers' Constitution. 10END QUOTE . Hansard 19-4-1897 Constitution Convention Debates QUOTE Mr. CARRUTHERS: 15 This is a Constitution which the unlettered people of the community ought to be able to understand. END QUOTE
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As such, I might so to say be the kind of person the Framers of the Constitution held had to be able to understand what the true meaning and application of the constitution was about.
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A major problem I have, silly me, not having studied the English language, to understand what an "Infringement Court" si about. so, I consulted the "Infringement Act 2006". Now either I am stark blinded or there is no definition of "Infringement Court". So, I seek to enlist your assistance to be the first law officer of the State of Victoria to bring to my attention where the de3finition of 25"Infringement Court' is stated. I am using version: Infringements Act 2006, Act No. 12/2006. Assuming you have a far better understanding about legal matters (I do not fear to acknowledge your possible better ability in this) I look forwards to you setting this out. While you are on it, why not raise some other matters also? 30As I understand it a person who has an allegation (as this is all it is) of an Infringement Notice against him then he can seek a review of this, I was however unable to find in the legislation any ability to seek a "review" of a registrars decision! Here is it that with my crummy English I interpreted from http://www.austlii.edu.au/au/cases/cth/HCA/1954/46.html
35R v Davison [1954] HCA 46; (1954) 90 CLR 353 (10 September 1954) QUOTE But the registrars and deputy registrars are not officers of the court but functionaries placed under the "control of the Court" in the peculiar manner described in the passage already quoted from Bond's Case 40END QUOTE
And then:
http://www.austlii.edu.au/au/cases/cth/HCA/1991/9.html Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 (17 April 1991) QUOTE 45 The first condition is that the delegation must not be to an extent where it can no longer properly be said that, as a practical as well as a theoretical matter, the judges constitute the court. This means that the judges must continue to bear the major responsibility for the exercise of judicial power at least in relation to the more important aspects of contested matters. The second condition is that the delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions of the officers of the court in the exercise 50 of their delegated jurisdiction, powers and functions must be subject to review or appeal by a judge or judges of the court. For present purposes it is sufficient for us to say that, if the exercise of delegated jurisdiction, powers and functions by a court officer is subject to review or appeal by a judge or judges of the court on questions of both fact and law, we consider that the delegation will be valid. Certainly, if the review is by way of hearing de novo, the delegation will be valid. The importance of insisting on the existence of 55 review by a judge or an appeal to a judge is that this procedure guarantees that a litigant may have recourse to a hearing and a determination by a judge. In other words, a litigant can avail him or herself of the judicial independence which is the hallmark of the class of court presently under consideration. END QUOTE Red colouring and underlining added) Page 14 of parts 1 & 2 19-7-2013 Re: COMPLAINT -Sheriff-CONTEMPT OF COURT etc 5 INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati
Page 15 http://www.austlii.edu.au/au/cases/cth/HCA/1991/9.html Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 (17 April 1991) Regarding: Delegation of powers to Registrar - Decisions of Registrar reviewable by Court - Hearing de novo Validity of delegation 5QUOTE In Reg. v. Davison (1954) [1954] HCA 46; 90 CLR 353 Dixon C.J. and McTiernan J. regarded the question whether certain duties falling upon a ChIII court could be executed, subject to judicial confirmation or review, by an officer of the court as being open: at p 365. Subsequently, in The Commonwealth v. Hospital Contribution Fund [1982] HCA 13; (1982) 150 CLR 49 ("the HCF Case"), Mason J. said (at p 64) that the 10 vesting of judicial power in a federal court "should not necessarily exclude the exercise of some jurisdiction and powers by a master or registrar of the Court ... provided that the exercise is subject to review or appeal". In the same case Murphy J. considered that, in respect of any federal court, "Parliament may authorize the exercise of its jurisdiction by officers or others who are not justices provided that these are under the real supervision and control of the justices of the court ": at p 66. 15END QUOTE (bold and red colouring added)
So, if the Infringement Court has a Registrar, then who is the presiding judge? You see, while I was given an option to have them matter going to court, I declined to take that 20option because it was a mere allegation that I had been speeding 5 kilometres an hour, and no "evidence" was provided to me to show that indeed the police allegation was substantiated. As such, I saw no justification to go to court, because that is the last resort one should use. I did ask for more information but was denied this. the forms provided by the Infringement Registrar is to apply for "revocation" not for a "review" but nevertheless the fact remains that I applied for a 25"review". However, what the document below also indicates is that my correspondences objection to the jurisdiction of the Infringement Court were totally disregarded. As quoted further below, a court cannot invoke jurisdiction unless it first has disposed of an OBJECTION TO JURISDICTION, and hence it cannot be held a valid order in any circumstances was issued, nor a warrant because the Infringement Court never did dispose of the OBJECTION TO 30JURISDICTION. It is irrelevant to me if the Infringement Court is not designed to operate as a normal court of law, as that is a problem the parliament and the Government has to face, it can however not defeat my rights. It must be clear that where I relied upon the correspondences referred to in the statement then the Infringement Registrar not having these documents before him should have ensured that a hearing was provided so that I could produce the said documents 35as well as he should have directed the " enforcement agency" as to explain why those details had been concealed from the Court.
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to my understanding there was no evidence by the "enforcement agency" that the speed I allegedly had been detected to travel was outside the margin of error provided for by the manufacturer. In my view, it is essential that an "enforcement agency" doesn't seek to pursue court orders 5in violation to Commonwealth provisions. Where the Commonwealth within its constitutional powers legislate as to " (xv) weights and measures" then any State legislation in violation to this cannot be enforced by the courts.
QUOTE Constitution 109 Inconsistency of laws 10 When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. END QUOTE Constitution
15Motor Vehicle manufacturers are bound to comply with Commonwealth legislation and therefore if the Commonwealth accepts that odometers may be having a variation in recording then the "enforcement agency" must provide such details to the Infringement Registrar, not that I concede the Infringement Registrar is a constitutional valid entity, with any Infringement Notice it lodgers.
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Foster (1950) S.R. (N.S.W.) 149, at p151 (Lord Denning, speaking on the role of an advocate) QUOTE As an advocate he is a minister of Justice equally with a judge, A Barrister cannot pick or choose his clients...He must accept the brief and do all he honourably can on behalf of his client. I say 'All he 25 honourably can' because his duty is not only to his client. He has a duty to the court which is paramount. It is a mistake to suppose that he is a mouthpiece of his client to say what he wants: or his tool to do what he directs. He is none of those things. He owes his allegiance to a higher cause. It is the cause of truth and Justice. He must not consciously misstate the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud, that is, without evidence to support 30 it. He must produce all relevant authorities, even those that are against him. He must see that his client discloses, if ordered, all relevant documents, even those that are fatal to his case. He must disregard the specific instructions of his client, if they conflict with his duty to the court. END QUOTE
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35If the odometer might be allowed 10% out, then obviously any alleged speeding may be found not to have been committed. it would have been more advisable if the State had provided for each vehicle the percentage of error in a odometer of the relevant make/model of vehicle and provide this as a information on any registration forms. After all, such details could easily fit just below the registration number relevant to the make/model of the vehicle. If therefore the error 40margin is stated then drivers may seek to slow down to allow for the error margin and this even so their vehicle may in fact not have this error margin. The problem obviously would be that not speeding is the killer but slow drivers, as they stagnate the flow of traffic, by this causing others to speed up, to overtake a slow driver, and then accidents can eventuate, and do!
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45The crazy thing is that will my "crummy English" I somehow perceived from International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49 (12 November 2009) (http://www.austlii.edu.au/cgibin/sinodisp/au/cases/cth/HCA/2009/49.html?stem=0&synonyms=0&query=taylor %20and%201979%20and%20hca%20and%202009) that for the Infringement Act 50 2006 to be valid there must be shown a "right of appeal" against the Order of the Infringement Registrar. Again, I have to call upon your expertise to point me in the right direction to show where the provision of an appeal is provided. (am appeal against a Registrars Decision I understand is a "review").
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I will quote below various documents as to avoid having to type it all out again, as you would only likely get a huge amount of typing and grammatical errors in addition, and I better not do this onto you. So, at the end of this writing you will noted quoted documents, including court judgment referred 5to.( International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49 (12 November 2009) )
QUOTE PART 1PRELIMINARY 1 10 1. Purposes 1 2. Commencement 2 3. Definitions 2 4. Act to be read as one with Magistrates' Court Act 1989 8 END QUOTE
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Ok, does this mean the Infringement Act 2006 is to be read as being part of the magistrates Court Act 1989 but somehow it has a unwritten different application as to the rules of the court, the non application of filing an application, the non provisions of an ordinary court of law, the denial of NATURAL JUSTICE, the failure to provide for a "review", etc, etc?
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Tell me something, if the Framers of the Constitution held that unlettered people should be able to understand the constitution then why is it that laws enacted by the States (within s106 of the constitution) are so extremely difficult to be understood? Surely, the legal principle/doctrine that the constitution must be understood by unlettered people then must also be applicable to any 25State legislation?
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I view I am entitled to know if the Infringement Court is part of the Magistrates Court of Victoria or not, as after all as a Registrar is not a judicial officer then he cannot issue court orders and neither warrants without supervision of a judge, yet the manner the Infringement Court is 30operating contrary to "open door" policy and other ordinary provisions it seems to b e more representing some STAR CHAMBER COURT kind of conditions, even so outlawed by the Act Interpretation Act 1980 (Victoria! At least that is my perception and understanding with my "crummy English."
35What puzzles me is that the Infringement Act 2006 for example uses the terminology: QUOTE "Court" means Magistrates' Court; END QUOTE 40QUOTE 60. Enforcement order notice (1) On the making of an enforcement order, an infringements registrar must cause an enforcement order notice to be sent to the person against whom the order is made. Note: See Part 13 for service requirements. 45 (2) An infringements registrar may send an enforcement order notice to (a) the person's address; or (b) any alternative address for the person as provided in the details lodged under section 54. (3) An enforcement order notice must be in writing and state (a) that an infringement warrant will be issued if the person against whom the enforcement order is made 50 defaults for a period of more than 28 days in the payment of the fine or, in the case of a natural person,
any instalment under a payment order;

END QUOTE
Moment, who issue the "WARRANT"? Is it the Infringement Registrar, this, as a Magistrates 55Court order? Well, I got news for you. I wrote to the (purported) Infringement Registrar that I objected to its jurisdiction and sought a review, and guess what? He refused this. Now, I know the legislation provides for the revocation of the Infringement Order, but it seems to me to fail to
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provide for a "REVIEW" of the Registrars decision before a judge, who supervises the registrar, as to make it to conform as a court.
QUOTE s. 36 Part 2Infringement NoticesPre-Enforcement Stage Infringements Act 2006 Act No. 12/2006 30 (3) If an application is made under sub-section (1), 10 the infringements registrar must (a) stay the operation of the infringement notice; and (b) refer the application to the Court for hearing and determination. (4) On the referral to the Court under sub-section (3), the Court must cause a notice of the time and place of the hearing of the application to be given or sent to the enforcement agency and to the applicant. 15END QUOTE
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QUOTE 40. Decision to go to Courtlodgeable infringement offences (1) If a person elects under this Part to have the matter of a lodgeable infringement offence heard and 20 determined in Court or an enforcement agency refers a matter in respect of a lodgeable infringement offence to Court under this Part (a) the enforcement agency must lodge with the Court the prescribed information in respect of END QUOTE
25QUOTE at 40 (3) Without limiting any other powers of the Court, the Court may proceed to hear and determine the matter of a lodgeable infringement offence even though a charge has not been served on the person who was served with the infringement notice. END QUOTE
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QUOTE 58. Agency may request enforcement order not be made At any time before an enforcement order is made, an enforcement agency may request an infringements registrar not to make anenforcement order in respect of details of any outstanding amount of an infringement 35 penalty and prescribed costs (if any) in respect of alodgeable infringement offence lodged under section 54. END QUOTE QUOTE Division 2Enforcement Orders 40 59. Enforcement orders (1) If an infringements registrar has not received a request under section 58 from an enforcement agency, the infringements registrar may make an enforcement order that the person pay to the Court the outstanding amount of the infringement penalty and the prescribed costs in respect of a lodgeable infringement offence. (2) An enforcement order is deemed to be an order of the Court. 45END QUOTE QUOTE 60. Enforcement order notice (1) On the making of an enforcement order, an infringements registrar must cause an enforcement order 50 notice to be sent to the person against whom the order is made. Note: See Part 13 for service requirements. (2) An infringements registrar may send an enforcement order notice to (a) the person's address; or (b) any alternative address for the person as provided in the details lodged under section 54. 55 (3) An enforcement order notice must be in writing and state (a) that an infringement warrant will be issued if the person against whom the enforcement order is made defaults for a period of more than 28 days in the payment of the fine or, in the case of a natural person, any instalment under a payment order; and END QUOTE
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Here we have that the Infringement Registrar gives in writing that a warrant " will be issued" yet no\ legal process is set out how this eventuate. Will the registrar listen to the fairies as to know what to do? Is
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the enforcement agency going to apply for it? Does the enforcement agency have to file an affidavit the alleged offender then can challenge? What if the alleged offender made an payment but the enforcement agency in error misplaced it? What if the monies went into Consolidated Funds and the enforcement agency was unaware of it as the 5legislation refers to "other funds" and this may be perhaps in the pocket of politicians, or others involved with the scheme. What this indicates is that the Parliament dictates to the Infringement Registrar that he must issue the "warrant" as it uses the terminology " will be issued". Hence the Parliament has taken over the judi8cial role and denied any NATURAL JUSTICE and FAIR and PROPER hearing. As the Infringement Court is 10named "court' then clearly it cannot be deemed some department of the Government (the executive) and so it comes back to the question if the Infringement Court is a court is it part of the Magistrates Court of Victoria or not. If it is then this section clearly violates the independence of the judiciary. If it is not part of the Magistrates Court of Victoria then it cannot be a court where there is no judicial supervision. As the police were well aware I opposed the jurisdiction of the court then it should have made thin known 15when lodging the Infringement Notice. concealing it in my view was CONTEMPT OF COURT or even CONTEMPT IN THE FACE OF THE COURT as to obtain orders/warrant by concealing relevant details.
The question now to be answered is who was the purported Infringement Registrar? After all, a computer cannot make a decision that requires an assessment of details. The Police in their sub 20missions should have made clear that I would oppose their case. Hence the police prosecutor, if there was any, would have been bound to follow the Foster principle:
Foster (1950) S.R. (N.S.W.) 149, at p151 (Lord Denning, speaking on the role of an advocate) QUOTE As an advocate he is a minister of Justice equally with a judge, A Barrister cannot pick or choose his 25 clients...He must accept the brief and do all he honourably can on behalf of his client. I say 'All he honourably can' because his duty is not only to his client. He has a duty to the court which is paramount. It is a mistake to suppose that he is a mouthpiece of his client to say what he wants: or his tool to do what he directs. He is none of those things. He owes his allegiance to a higher cause. It is the cause of truth and Justice. He must not consciously misstate the facts. He must not knowingly 30 conceal the truth. He must not unjustly make a charge of fraud, that is, without evidence to support it. He must produce all relevant authorities, even those that are against him. He must see that his client discloses, if ordered, all relevant documents, even those that are fatal to his case. He must disregard the specific instructions of his client, if they conflict with his duty to the court. END QUOTE 35. Taylor v. Taylor (1979) Fam LR 5, 289289 at 290 298 and 300 HIGH COURT OF AUSTRALIA. QUOTE Although the Family Court is a court created by statute, it never the less possesses an inherent jurisdiction to set aside a judgement obtained by default - there is no indication in the Family Law Act of an intention to 40 displace this inherent jurisdiction. END QUOTE
And
Taylor v. Taylor (1979) Fam LR 5, 289289 at 290 298 and 300 HIGH COURT OF AUSTRALIA QUOTE 45 In my opinion, the words 'false evidence' in s79A(1) do not mean evidence which is wilfully false. The subsection should be read according to its terms. To say that 'false evidence should be read as 'wilful false evidence' is to introduce a provision not expressed by the provision; cf s6H of the Royal Commission Act 1902 which speaks of a witness 'who knowingly gives false testimony'. This interpretation is reinforced by reference elsewhere in s79A(1) to the separate grounds of fraud and suppression of evidence which would 50 comprehend cases of wilful false evidence. At common law, a judgment will be set aside if it has been obtained by fraud. In the exercise of this jurisdiction, it has been held that an applicant must show something more than perjury, ie. new facts (Baker v. Wadsworth [1898] 67 LJQB 301; Everett V. Ribbands [1946] 175 LT 143). This tends to suggest that the words 'false evidence' should be given their literal meaning 55 END QUOTE Taylor v. Taylor (1979) Fam LR 5, 289289 at 290 298 and 300 HIGH COURT OF AUSTRALIA QUOTE In my opinion, the words 'false evidence' in s79A(1) do not mean evidence which is wilfully false. The subsection should be read according to its terms. To say that 'false evidence should be read as 'wilful false Page 20 of parts 1 & 2 19-7-2013 Re: COMPLAINT -Sheriff-CONTEMPT OF COURT etc 5 INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati
Page 21 evidence' is to introduce a provision not expressed by the provision; cf s6H of the Royal Commission Act 1902 which speaks of a witness 'who knowingly gives false testimony'. This interpretation is reinforced by reference elsewhere in s79A(1) to the separate grounds of fraud and suppression of evidence which would comprehend cases of wilful false evidence. At common law, a judgment will be set aside if it has been 5 obtained by fraud. In the exercise of this jurisdiction, it has been held that an applicant must show something more than perjury, ie. new facts (Baker v. Wadsworth [1898] 67 LJQB 301; Everett V. Ribbands [1946] 175 LT 143). This tends to suggest that the words 'false evidence' should be given their literal meaning END QUOTE
10And
Taylor v. Taylor (1979) Fam LR 5, 289289 at 290 298 and 300 HIGH COURT OF AUSTRALIA QUOTE In my opinion, the jurisdiction extends not only to the setting aside of judgments which have been obtained without service or notice to a party ( Craig v. Kanssen [1943] KB 256 at 262 - 263) but to the setting aside 15 of a default or ex-parte judgment obtained when the absence of the party is due to no fault on his part. I can find no indication in the Family Law Act of an intention to displace this inherent jurisdiction. END QUOTE QUOTE R.V. Crimmins (1959) VR 270 20 Suppression of relevant evidence END QUOTE . QUOTE Byrne v Byrne (1965) 7 FLR 342 at 343 Fraud: Usually takes the form of a statement of what is false or the suppression of what is true. 25 END QUOTE
it must therefore be clear that if the police concealed from the purported Infringement Court that I challenged their allegation then this would in my view constitute "fraud" and "CONTEMPT IN FACE OF THE COURT" as to deceive the court in making an order upon what was submitted to the court rather then upon all relevant details that ought to have been submitted. 30In my view such kind of illegality by the Police can never be sanctioned, this also because the general community would lose trust in the police force and it would undermine the independence of the Courts and so its integrity, if the police could manipulate the court as a tool for its own purposes. 35I understand that in the case of MORIATY v LONDON, CHATMAM & DOVER RY Queens Bench 1870 L.R. 5 Q.B. 314;39 L.T.Q.B. 109;22 L.T. 163;34 J.P. 692;18 W.R. 625 in which the plaintiff sued a railway company for personal injuries sustained and this plaintiff has gone about suborning false evidence and it was held by the Court that even so the plaintiff would have had a genuine and justify to case to sue normally, by the plaintiff conduct to suborn false evidence 40this was seen by the Court that this conduct amounted to an admission that he had no case. The police having concealed relevant evidence from the purported Infringement Court by this must be deemed to have conceded not to have a case. 45As the registrar "may send" an "enforcement order notice", but may simply not do so, then the alleged offender may be unaware of the Registrar going on about things perhaps all his doing is to listen to the fairies rather then to give the alleged offender an opportunity to be heard. Then again, if indeed the purported Infringement Registrar, is an elaborate con-job where in fact it is a private company (perhaps Tenix Solutions Pty Ltd) who is accessing court computers and issuing 50orders and warrants so to say in the secrecy of darkness, then there is no one to actually hear and determine the evidence as such.
.
It should not be ignored that in 2000 I challenged an Infringement Notice, as it stated that I had been doing 103 kilometres in a 80 Kilometre zone. I then discovered that the then so called 55"Perin Court" had issued an order that I had been speeding 103 kilometres in a 890 kilometre zone. when I challenged this before a magistrate he made clear that the police officer afterwards
5
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was entitled to amend the Infringement Notice, to a 80 kilometres zone, even so I had shown 100 kilometres on the Infringement Notice as being the speed limit. So, how does anyone know and can verify before the Registrar issue orders or a warrant that the Infringement Notice the police or other organisation filed with the Infringement Registrar actually is what was served upon the 5alleged offender?. My personal experiences proved that police do change afterwards the details, and the legislation clearly provide no opportunity for an alleged offender to be able to verify if the alleged Infringement Notice lodged with the Infringement Registrar is actually what was issued. Indeed, I received 2 different Infringement Notices for the one and the same alleged offence. so, it remains to me a question then which one was lodged with the Infringement 10Registrar. No legal process seems to exist for an alleged offender to be able to verify this.
.
Marriage of Baines (No. 2) (1981) 7 Fam LR 232 at 237;QUOTE We recognise that each party is entitled to a Fair and Proper trial and to an adequate opportunity to adduce 15 relevant evidence and to test the quality and veracity of the evidence adduced by the other party. END QUOTE
I challenged from onset the validity of the Infringement Act 2006 and clearly the Infringement Registrar by this had no legal authority to issue any orders/warrant unless and until my objections were appropriately canvassed.
20.
QUOTE Main v. Thiboutot, 100 S. Ct. 2502 (1980). The law provides that once State and Federal jurisdiction has been challenged, it must be proven. END QUOTE QUOTE Hagens v. Lavine, 415 U.S. 533, 25 Once jurisdiction is challenged, it must be proven END QUOTE QUOTE Standard v. Olsen, 74 S. Ct. 768, No sanctions can be imposed absent proof of jurisdiction . END QUOTE 30QUOTE Basso v. Utah Power & Light Co., 495 2nd 906 at 910, Jurisdiction can be challenged at any time, even on final determination. END QUOTE
.
QUOTE Thompson v. Tolmie, 2 Pet. 157, 7 L.Ed. 381; Griffith v. Frazier, 8 Cr. 9, 3L. Ed. 471. 35 Where there is absence of jurisdiction, all administrative and judicial proceedings are a nullity and confer no right, offer no protection, and afford no justification, and may be rejected upon direct collateral attack. END QUOTE
.
40It is very clear from the legislation that a enforcement agency may not desire to proceed with lodging an Infringement Notice with the Infringement Registrar, and so on that basis why on earth would a alleged offender be limited to elect to go to court if the enforcement agency may not view later there is any case to pursue? 45Let's use another example.
I was provided with an Infringement Notice, in 2008, having allegedly exceeded a 3 hours parking limit. I disputed having exceeded the 3 hour limit and this appeal was dismissed on the basis that the parking controller of Banyule City Council had in fact made a photo of my vehicle and it showed that I had parked there from about 11.24 till 1.53. This in my view makes it 2.29 minutes, but then again I have a self 50 proclaimed "crummy English" and rely upon how I learned as a child at school how a clock works, and perhaps you can show how this equates to exceeding 3 hours. Anyhow, after many months and writing to the lawyers of council I was advised no further appeal was possible, and the matter would go to court. I wrote back that I would ask the court to calculate the time and unless it was some imbecile the council would fail. Anyhow council lawyer then wrote back that my appeal was upheld and the Infringement Notice was 55 withdrawn. So, my second appeal was upheld, even so no second appeal was possible? But what ought to be clear is that this is the kind of nonsense that goes on and numerous people who had parked there had been fined for exceeding the parking limit but likely ended up paying up or the Infringement Registrar issued an Page 22 of parts 1 & 2 19-7-2013 Re: COMPLAINT -Sheriff-CONTEMPT OF COURT etc 5 INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati
Page 23 order/warrant and for what? This does not make people to obey the law where they have done nothing wrong but the system is pretending they did something wrong.
5before a court of law. Again, a person who may not wish to go to court because of the risk of loosing
wages, or losing his job and may very well be right not to choose to go to court as the courts should be the last resort, then can be faced not to get any opportunity if some enforcement agency cooks the books, alter the details of the Infringement Notice, and the Infringement Registrar unaware of this then issue orders on fabricated details as there is no so to say check and balances in existence. 10What also ought to be clear is that I didn't elect to go to court win regard of the purported 2008 parking violation and as the appeal was dismissed then clearly the enforcement agency could have then lodged the Infringement Notice for enforcement by the Infringement Registrar regardless that clearly I never exceeded the parking limit. Was it not for the council lawyer after many months finally realising that 2 hours and 29 minutes is in Australia also less then 3 hours, and so withdrew the Infringement Notice, I 15could have been stuck with a Infringement Notice order for enforcement and solo a warrant with not legal avenues to challenge it. After all, I did request a "review" of the Infringement Registrars decision of 2011 having issued an enforcement order but somehow the registrar decided I was not going to get this review (before a judge), dealing with it as a application for revocation. instead of a review, because the Infringement Act 2006 doesn't provide for a "review" of the Infringement Registrars decision before a 20judge/magistrate. It is this failure of proper legal procedures that the Infringement Registrar cannot
This is where the system fails because innocent people are deprived of any avenue to have a hearing
be deemed to operate as a court nor can be accepted to issue court orders or a warrant. But there is more to it all as set out below.
.
While in s78 it refers to the Registrar may issue another infringement warrant, the problem is that 25I couldn't detect any legal process that is set out how anyone can apply for a warrant, and how the target of such a warrant can seek a review if such a warrant were issued? Let's say that a person who owns a motor vehicle is sick in hospital and unbeknown to him someone is driving his vehicle causing offences or better to state alleged offences. This person comes finally out of a hospital, still suffering from post operative matters and then find that in 30the say 3 months he was in hospital the Infringement Registrar issued an order and subsequently a warrant and there is no legal process in place that facilitates this person to seek a "review" of the Registrars decision.
Hansard 8-2-1898 Constitution Convention Debates 35QUOTE Mr. OCONNOR (New South Wales).-I have mentioned before the reasons, and they appear to me to be very strong, why these words should be retained. The honorable member will not deny that there should be a guarantee in the Constitution that no person should be deprived of life, liberty, or property without due process of law. The simple object of this proposal is to insure that no state shall violate what is one of the first principles of citizenship. Mr. KINGSTON.-Is there not that guarantee now? Mr. OCONNOR.-I do not think so. We are making a Constitution which is to endure, practically speaking, for all time. We do not know when some wave of popular feeling may lead a majority in the Parliament of a state to commit an injustice by passing a law that would deprive citizens of life, liberty, or property without due process of law. If no state does anything of the kind there will be no harm in this provision, but it is only right that this protection should be given to every citizen of the Commonwealth. Sir JOHN FORREST.-Would not the Royal assent be withheld? Mr. OCONNOR.-I do not know that it would. The Royal assent is practically never refused to any Bill that deals with our own affairs, and it is highly improbable that it would be refused under any circumstances.
50
40
45
Mr. ISAACS.-Suppose a state wanted land for railway purposes, and took it compulsorily, there being a provision in one of the statutes that the amount to be paid should be determined by arbitration, would not that be taking the land without due process of law?
Page 24 Mr. OCONNOR.-No, it would not; and, as an honorable member reminds me, there is a decision on the point. All that is intended is that there shall be some process of law by which the parties accused must be heard. Mr. HIGGINS.-Both sides heard.
5
Mr. OCONNOR.-Yes; and the process of law within that principle may be [start page 689] anything the state thinks fit. This provision simply assures that there shall be some form by which a person accused will have an opportunity of stating his case before being deprived of his liberty. Is not that a first principle in criminal law now? I cannot understand any one objecting to this proposal. Dr. COCKBURN-Very necessary in a savage race.
10
Mr. OCONNOR.-With reference to the meaning of the term due process of law, there is in Baker's Annotated Notes on the Constitution of the United States, page 215, this statementDue process of law does not imply that all trials in the state courts affecting the property of persons must be by jury. The requirement is met if the trial be in accordance with the settled course of judicial proceedings, and this is regulated by the law of the state.
15
If the state law provides that there shall be a due hearing given to the rights of the partiesMr. BARTON.-And a judicial determination.
END QUOTE
I do not hold that a Registrar provides a "judicial determination", nor that it can be held that 20"both parties" were heard whee basically it is an ex parte (purported) hearing. indeed, no reason of judgement is provided, nor any court hearing date provided for the purported hearing of the Infringement Registrar to determine if an enforcement order should be issued, let alone if a warrant subsequently should be issued. What shows is that the registrar can reissue a warrant but no legal process is set out how this is to be done. Is it that the registrar listen to the fairies and 25they tell him that an order was not paid, regardless if it had been? What is the legal process to be followed that a registrar may recall a warrant? Is it again that the fairies is going to dictate it or should there be a certain legal process in place? No conviction is recorded but somehow a warrant can be issued to arrest a person. for what and how can a person oppose such a warrant if the person holds it to be wrongly issued?
QUOTE 78. Consequences of default under a payment order (1) If an infringements registrar has made a payment order and a person defaults under that payment order for a period of more than 28 days, the infringements registrar may issue another infringement warrant against the 35 person. END QUOTE QUOTE Part 4Lodging Infringement Penalties and Enforcement Orders 40 Infringements Act 2006 Act No. 12/2006 50 61. Effect of enforcement order (1) If an enforcement order is made in relation to a lodgeable infringement offence alleged to have been committed by a person 45 (a) subject to sections 89 and 89A to 89D of the Road Safety Act 1986, section 215C of the Transport Act 1983 or sections 61A and 61BA of the Marine Act 1988 (as the case requires), the person is not to be taken to have been convicted of the offence; and (b) the person is not liable to any further proceedings for the offence alleged to have been committed; and 50 (c) the making of the enforcement order does not in any way affect or prejudice any civil claim, action or proceeding arising out of the same occurrence; and
30
Page 25 (d) payment in accordance with the enforcement order is not an admission of liability for the purpose of, and does not in any way affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence. (2) Any amount recovered as a result of the making of an enforcement order must be paid into the 5 Consolidated Fund unless the relevant Act or relevant regulation that creates the infringement offence directs that the amount be paid into another fund. (3) Despite anything to the contrary in this section, the making of an enforcement order in relation to an offence which is a traffic infringement within the meaning of the Road Safety Act 1986 does not prevent the incurring of demerit points under section 25 of that Act in relation to the infringement. 10END QUOTE QUOTE s. 77 Part 5Payment Orders 15 Infringements Act 2006 Act No. 12/2006 65 (4) Despite anything to the contrary in this Act, an infringements registrar may determine not to include the fee referred to in sub-section (3) in the amount of the fine if satisfied that there are sufficient grounds for not including that fee. 20 (5) While a payment order is in force and is being complied with (a) the enforcement order operates subject to it; and (b) the execution of the enforcement order is stayed and (i) an infringements registrar may recall any infringement warrant issued in respect of the order ; or (ii) any infringement warrant issued in respect of the order remains issued until recalled but is not to be 25 enforced. (6) If an infringements registrar has granted an application for a payment order and the infringements registrar subsequently discovers that the applicant supplied false or misleading information in the application about the applicant's financial circumstances, the infringements registrar may (a) set aside the payment order; and 30 (b) issue an infringement warrant against the person or release the stay on the execution of the warrant imposed under sub-section (5)(b), as the case requires. END QUOTE Uniform Tax \case, 1942 (65CLR 373 at 408) 23-7-1942 35QUOTE Common expressions such as: 'The Courts have declared a statute invalid'," says Chief Justice Latham, "sometimes lead to misunderstanding. A pretended law made in excess of power is not and never has been a law at all. Anybody in the country is entitled to disregard it. Naturally, he will feel safer if he has a decision of a court in his favor, but such a decision is not an element, which produces invalidity in any law. 40 The law is not valid until a court pronounces against it - and thereafter invalid. If it is beyond power it is invalid ab initio. END QUOTE Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi [1999] HCA 27 45(17 June 1999) QUOTE For constitutional purposes, they are a nullity . No doctrine of res judicata or issue estoppel can prevail against the Constitution. Mr Gould is entitled to disregard the orders made in Gould v Brown. No doubt, as Latham CJ said of invalid legislation, "he will feel safer if he has a decision of a court in his favour". 50 That is because those relying on the earlier decision may seek to enforce it against Mr Gould. END QUOTE
.
As I indicated in previous correspondences that once legislation has been challenged to be ULTRA VIRES then it is so from time of enactment unless a court pronounces against it that it 55is INTRA VIRES. this never eventuated, hence it remains ULTRA VIRES. Further, my previous correspondences also set out that "officials" as like Ministers can be sued like any other person where the act outside their legal powers. As the purported Infringement Court was some kind of computer generated court order, operated 60not by the Magistrates Court of Victoria itself but as I understand it some private company then
5
Page 26
this makes it even more serious of impersonating a public official, including a court official, the Sheriff's Office, etc.
.
120125 Recording, 2nd system file 29:50 From 5.00 to 11:50 5CASE NUMBER C10728398
QUOTE MAGISTRATE: Evidence in this court is not received by way of affidavit - and, in any event, should it be received by affidavit, then the deponent of the affidavit - that's you, the person swearing the affidavit, must 10 then - then - make themselves available for cross-examination on the issues that are raised on that affidavit evidence. Otherwise, the - the affidavit cant be relied on by me as evidence in your case. END QUOTE
15can be subjected to cross-examination? where then is the legal provision in the Infringement Act 2006
that upon lodgement of the Infringement Notice the alleged offender can challenge this version of Infringement Notice?
.
The question therefore is: What was the status of the Infringement Notice? Is it a sworn document, that
20parties and allowing either party to challenge the veracity of the other parties evidence?
Sheriff Act-09-9a003
QUOTE
How can a Sheriff enforce purported warrant when it is not issued by a judicial officer, after hearing both
PART 2THE SHERIFF, THE DEPUTY SHERIFF AND SHERIFF'S OFFICERS

25
Division 1The sheriff 6 The sheriff There is to be employed under Part 3 of the Public Administration Act 2004 a sheriff (a) for the purposes of court and enforcement legislation; and
(b) to assist in the administration of justice in Victoria. 30 END QUOTE (bold and colour added)
It can therefore be beyond question that a Sheriff Officer can and must only act as to the administration of justice for the court and enforcement legislation and not otherwise. . 35http://www.austlii.edu.au/au/cases/cth/HCA/1954/46.html
R v Davison [1954] HCA 46; (1954) 90 CLR 353 (10 September 1954) QUOTE A court is composed of the judges which form it, but courts are provided with officers and, under a unitary system of government, it is not uncommon to find that certain duties falling upon a court are executed, subject 40 to judicial confirmation or review, by an officer of the court, such as a master. There is no distinct decision of this Court that under Chapter III no authority can be given by statute for the discharge in this way of the duties of a Federal court, although there are dicta to that effect: cf. per Isaacs J. and Starke J. in Le Mesurier v. Connor (1929) 42 CLR, at pp 511, 512, 522-525 . The decision of Long Innes J. in Re Malcolm Fraser Grant; Ex parte Edgley (1928) 29 SR (NSW) 31 , perhaps necessarily implies it. But the registrars and 45 deputy registrars are not officers of the court but functionaries placed under the "control of the Court" in the peculiar manner described in the passage already quoted from Bond's Case [1930] HCA 24; (1930) 44 CLR 11 . END QUOTE
We therefore have that Registrars and Deputy Registrars are not officers of the court and as such 50with my "crummy English" cannot issue court orders/warrants without supervision of a judge.
TAYLOR v. TAYLOR [1979] HCA 38; (1979) 143 CLR 1 (22 August 1979) (Folder 1) Similarly in Commissioner of Police v. Tanos (1958) 98 QUOTE
5
CLR 383, at p 395, Dixon C.J. and Webb J. said that
Page 27 it is a deep-rooted principle of the law that before anyone can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard. END QUOTE
5
Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi [1999] HCA 27 (17 June 1999) QUOTE For constitutional purposes, they are a nullity . No doctrine of res judicata or issue estoppel can prevail 10 against the Constitution. Mr Gould is entitled to disregard the orders made in Gould v Brown. No doubt, as Latham CJ said of invalid legislation, "he will feel safer if he has a decision of a court in his favour". That is because those relying on the earlier decision may seek to enforce it against Mr Gould. END QUOTE
15Therefore any Sheriffs Officer who purport to exercise/execute powers of a warrant then equally is bound by this because the Sheriffs Officer cannot have a greater power then the Court who issued a warrant, and hence if the warrant is without legal force then so the conduct of any Sheriffs Officer acting upon an invalid warrant.
20Thompson v Tolmie 27 U.S. 157 (1829) Page 27 U.S. 157, 169 QUOTE When a court has jurisdiction, it has a right to decide every question that occurs in the cause; and whether its decisions be correct or not, its judgment, until reversed, is regarded as binding in every other court. But if it acts without authority, its judgments and orders are regarded as nullities. They are not voidable, but 25 simply void; and form no bar to a recovery sought in opposition to them even prior to a reversal.' END QUOTE
Well, it seems the sheriff's office couldn't care less about what is legal or not, so it seems to me. and you call this law enforcement?
30
http://au.news.yahoo.com/video/nsw/watch/18007966/speed-camera-accuracy-not-checked/ QUOTE Speed camera accuracy not checked

35
Yahoo!7July 15, 6:49 pm A High Court case is being planned to challenge the accuracy of cameras that have generated millions of Australian speeding fines. Adam Walters reports.
END QUOTE
40It seems to me the validity challenged before the High court of Australia as to the accuracy of speed camera's is an issue I raised from onset in my correspondence and so relevant to this case also.
QUOTE 45 PART 6INFRINGEMENT WARRANTS 80. Issue of infringement warrants (1) An infringements registrar must issue an infringement warrant against a person to whom an enforcement order notice is sent (including a director to whom a declaration under section 91 applies) if the person for a period of more than 28 days 50END QUOTE
Clearly, the Parliament dictates that the Infringement Court (whatever this is in legal terms) "must issue" an infringement warrant, and so has taken over the decision of a court to decide if on the basis of the evidence before it a warrant should or shouldn't be issued. Why have a court 55at all if the Parliament now had taken over its judicial decision making powers? As I understand it going to court means in the legal terms of the Infringement Act 2006 the Magistrates Court of Victoria
Page 28 QUOTE Division 7Going to CourtPre-lodgement Stage 31 39. Penalty to be refunded if election to go to Court is made 31 40. Decision to go to Courtlodgeable infringement offences 32 5 41. Avoiding service 33 END QUOTE QUOTE Division 3Revocation of Enforcement Orders 53 10 64. Infringements registrar may revoke enforcement order and refer matter to Court 53 END QUOTE QUOTE 15 68. Referral to Court of application for revocation 57 END QUOTE
As I understand it with my "crummy English" a " revocation" is to challenge the order itself, whereas a "review" of a registrars decision is where the Court hears the matter De Novo. As such 20it is if it there never was any Registrar's decision. While the legislation may provide for a Registrar to hear and determine a "revocation" application, it failed in my view to provide for the "review" as a De Novo hearing before a judge supervising the Registrar. While we have a thing called "Cost Court' which is within the supreme Court of Victoria but under supervision of the Chief Justice of the Supreme Court of Victoria, it appears to me that the 25so called Infringement Court is not a division of the Magistrates Court of Victoria. After all, if it were one would find all orders/warrants issued by the Infringement Court to be shown in the overall totals of the Magistrates Court of Victoria, as to the number of orders it issued, but that is to my understanding not the case.
.
30You cannot have a purported legal provision that a Registrar refers the matter to the Court (meaning the magistrates Court of Victoria) if the Registrar himself is already a Court. It would then require a "transfer" to be transferred from one court to another. Such as where a constitutional issue is raised to which the Infringement registrar has no judicial powers to determine and so it be transferred to the High Court of Australia. But, to hold the Registrar 35simply "refer" a matter to a court then this indicates to me (again with my "crummy English") that he is not constituting a court at all.
QUOTE part of 10-8-2011 correspondence
WITHOUT PREJUDICE 40Magistrates Court of Victoria Ground Floor, 277 William Street Melbourne Vic 3000
C/o:
45Cc:
10-8-2011
Chief Magistrate of the Magistrates Court of Victoria C/o help@magistratescourt.vic.gov.au Acting Chief Commissioner of the Victorian Police C/o heidelberg.uni@police.vic.gov.au C/o Victoria Police Centre, G.P.O Box 913, Melbourne, VIC, 3001, AUSTRALIA Civic Compliance Victoria GPO Box 1916, Melbourne VIC 3001 Traffic_Inquiries@tenixsolutions.com
50
Ethical Standards Department Victoria Police Unit, Victoria Police Centre, 737 Flinders Street, Melbourne 3005 Phone 1300 363 101, Facsimile 9247 3498
55
Ted Baillieu Premier of Victoria ted.baillieu@parliament.vic.gov.au
Ref: Infringement Court case Number 1158210495

5
Page 29
Infringement Notice Number 0201683566 ADDRESS TO THE COURT 5Sir/Madam, a limited set out is provide d below as to why the purported Infringement Notice Order is null and void and should be revokes/set aside as being ULTRA VIRES, etc.
Hansard 8-3-1898 Constitution Convention Debates 10QUOTE Mr. GLYNN.-I think they would, because it is fixed in the Constitution. There is no special court, but the general courts would undoubtedly protect the states. What Mr. Isaacs seeks to do is to prevent the question of ultra vires arising after a law has been passed. [start page 2004]
15
Mr. ISAACS.-No. If it is ultra vires of the Constitution it would, of course, be invalid.
END QUOTE END QUOTE part of 10-8-2011 correspondence http://www.heraldsun.com.au/news/more-news/police-dodge-traffic-fines/story-fn7x8me2-1226133908813 20QUOTE article 11 September 2011 Police dodge traffic fines Jon Kaila From: Sunday Herald Sun September 11, 2011 12:00AM
25
183 comments MORE than 100 police issued with fines for breaking road laws have escaped punishment because they refused to admit they were driving. The 138 incidents of running red lights and speeding by up to 40km/h over the limit involved officers who were not actively pursuing criminals and not rushing to crime scenes.
30
Victoria Police said it was unable to identify the driver in all the incidents - leading to fines being scrapped despite admitting officers signed a log book each time they used a vehicle. As debate rages about the accuracy of speed cameras, documents released under Freedom of Information reveal 1477 infringements were issued to police for non-operational offences in the past five years.
35
But 61 per cent of those were then dropped by Victoria Police. Ordinary members of the public who appeal against a fine are let off in only 3 per cent of cases. Start of sidebar. Skip to end of sidebar.
40
Results: Road rules Thanks for voting! Do you believe police are getting special treatment to avoid speeding fines? Yes 81.78% (1876 votes) No 18.22% (418 votes) Total votes: 2294
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The statistics show Victoria Police failed to recoup $109,280 by not enforcing fines against its officers. The revelations prompted criticism from Police Minister Peter Ryan. Page 29 of parts 1 & 2 19-7-2013 Re: COMPLAINT -Sheriff-CONTEMPT OF COURT etc INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati
Page 30 "Except ... where duty requires, police officers should have to comply with the road rules like all other drivers," Mr Ryan said.
5
On one occasion a Victoria Police vehicle was detected speeding 40km/h above the road limit. The driver should have been banned from driving for six months, had six demerit points added to their licence and paid a $519 fine. Instead, Victoria Police said it was "unable to identify" the driver.
10
A further 769 offenders - breaking road rules in their squad cars but not in the pursuit of crime - were simply told not to do it again. Officers escaped receiving 916 demerit points - enough to ban 76 cops.
15
Rose Sutera, whose son Anthony died at the hands of a speeding driver in Mill Park last year, said police should not speed unless fighting crime. "It's a disgrace and just wrong," Ms Sutera said.
20
"Why is it one rule for them and another for us?" Victoria Police said the figures were "disappointing".
25
"Police officers are expected to set an example in obeying speed limits," a spokeswoman said. "It is disappointing a number of police officers have been detected when not exempt from the road rules." But the force argued police officers had been "penalised accordingly".
30
"Police, as with all members of the community, are able to apply for an official warning under strict criteria," the spokeswoman said. "This includes an admission of guilt, a speed under 10km/h over the limit, and a good driving record with no infringements issued for the previous two years.
35
"Warnings are an officially recorded sanction - once you receive an official warning motorists are not eligible to apply again." In dozens of incidents where the driver was detected speeding between 10km/h and 40km/h above the limit, Victoria Police said it was unable to identify the driver and no one was penalised in any way.
40
kailaj@heraldsun.com.au END QUOTE article 11 September 2011
If the Police cannot identify their own drivers and yet when they issue an infringement notice to 45someone who owns a motor vehicle then the owner is deemed automatically to be responsible, unless providing a declaration setting out who was the driver. Then why do not the same with the relevant district commander of the Police? If vehicles are assigned to him (this includes "her") then it is for him to set out who was the driver of the vehicle and failing this the alleged infringement must be held against the district commander. Now, if that were to be applied then 50quick smart police will be identified. You simply cannot have that rules apply to some but not to others. The Registrar of the Infringement Court should not be able to have any bias as to if the driver was say an off duty police officer or not, as the rule of law (if there is any that is) must be applied to all. what wee have however is that it seems to be up to the "enforcement agency" to lodge an 55Infringement Notice or not. As such there is an implied bias that the police will not too often prosecute itself. As such, there is no fair and proper system in place of law enforcement. We also have to consider if the Infringement Court is actually handled by a court or merely by a private organisation nothing to do with being a court but a pretended court.
5
Page 31
120125 Recording, 2nd system file 29:50 From 5.00 to 11:50 CASE NUMBER C10728398
5
QUOTE MAGISTRATE: Evidence in this court is not received by way of affidavit - and, in any event, should it be received by affidavit, then the deponent of the affidavit - that's you, the person swearing the affidavit, must then - then - make themselves available for cross-examination on the issues that are raised on that affidavit evidence. Otherwise, the - the affidavit cant be relied on by me as evidence in your case. END QUOTE
10What this magistrate also seemed to indicate , when one check the transcript of the hearing, is that the Infringement Court is another kind of court with a different set of rules. This obviously then poses the question if the Infringement Court is a different Court not bound by the legal provisions of the Magistrates Court of Victoria then what are the rules? In the English language, at least for so far I am aware of, the term " court" can be used in many 15ways, such as one could reside in a street, crescent, court, road, etc. Nothing to do with a court of law to provide or deemed to provide justice. Then it could be argued some one may be holding court. Again, not to be confused with a Court of law. So, is the Infringement Court a purported Court that really is no Court of Law at all? it simply is an illusion created by the Parliament and understood by most people as a product of their perceptions in their mind? Who really seems to 20be the Court may also be answered by the following, where as I understand it the former Attorney-General Robert Hulls entered in some deed, to assign parts of the Magistrates Court of Victoria to be operated by a private company and they are pretending as I understand it to be the Infringement Court using the court computers of the Magistrates Court of Victoria.
.
25QUOTE Civic Compliance Victoria Explained
http://exfacie.com/?q=civic_compliance_victoria_explained
Civic Compliance Victoria Explained
30Submitted by exfacie on Sat, 09/24/2011 - 13:57

Civic Compliance Victoria is the "body" that processes infringement notices, infringement warrants and fines within the State of Victoria. This article provides a description of exactly what Civic Compliance Victoria is (and is not), and the people behind CCV.
Civic Compliance Victoria
35The
State Government of Victoria website for fines states, " Civic Compliance Victoria (CCV) is an
administrative body that is responsible for processing fines issued by various government agencies and authorities within Victoria", and that, "all enforcement orders and infringement warrants issued by the Infringements Court are processed by Civic Compliance Victoria irrespective of the agency by which they were originally issued." [1]
Page 32
The fore mentioned website appears to be (grossly) misleading. In communications with the Department of Justice - State of Victoria it was communicated that:
Civic Compliance Victoria (CCV) is the name created by the State to provide one name for the integrated fines and enforcement system comprising the Traffic Camera Office of Victoria Police,the Infringements Court and
5the Sheriff's Office. CCV has no ABN number and is not registered as a business as it is neither a business nor
a company, nor a trading name. The name CCV is the intellectual property of the State of Victoria. [2]
This statement is confirmed by the IP Australia website [3]. The following trade marks are registered:
Registered Trade Marks for CCV
Number
TradeMarkName
Registrant
933736
CCV
The Crown in the Right of the State of Victoria
933737
CIVIC COMPLIANCE VICTORIA
1010971
CCV (logo)
Hence, Civic Compliance Victoria appears to be nothingmorethana trademark registered by The Crown in the Right of the State of Victoria.
10The State of Victoria and Tenix

In communications with the Department of Justice - State of Victoria it was communicated that:
"The State's contractor, Tenix Solutions IMES Pty Ltd, is licensed to use the names 'CCV' and 'Civic Compliance Victoria' in providing infringement management and enforcement services for the State. " [2]
Page 33
In subsequent communications with the Department of Justice - State of Victoria it was communicated that:
"... Tenix Solutions IMES Pty Ltd is the only entity licensed to use the names 'CCV' and 'Civic Compliance Victoria'". [4]
Hence, the Department of Justice - State of Victoria has communicated that TenixSolutionIMESPty Ltd has
5exclusivelicenseto usethe CCVtrademarks.
Further information about the relationship between the State of Victoria and Tenix Solutions IMES Pty Ltd can be obtained from the following sources:
Infringement Management and Enforcement Services Project - Deed of Charge, signed 26 July 2007 (available via ASIC).
10
Infringement Management and Enforcement Services Agreement; start date 29 July 2007 to 30 October 2012 (Contract 015-07-08) [5].
The estimate value of the contract is listed as $332,100,000 ($332.1M). Please note that the contract available via the tenders.vic.gov.au website has sections redacted and is not the complete document.
15The reference in the contract to license of the trade marks is located in section 51.18 of the agreement; part of
that section is presented (bold font emphasis added by editor):
51.18 Licence to use the Trade Marks
Page 34
(a) With effect from the Commencement Date, the Stategrantsto the Contractorfor the Terma non-exclusive,royaltyfree licenceto use the TradeMarks in Australia solely for the purposes of the Contractor fulfilling its obligations under this Agreement.
(b) The State may from time to time during the Term impose in writing, reasonable requirements regarding the
5use of the Trade Marks, and the Contractor must comply with those requirements.
(c) Where the Trade Marks appear in any written material (including any electronic material) published by or on behalf of the Contractor, unless otherwise authorised by the State:
(i) the TradeMarksmustappearwith the symbol (or, if the Trade Mark is not yet registered, the symbol); and
(ii) the TradeMarkmustbe accompaniedby the followingfootnote:The [inserttrademark]trademarkis usedby [insert
10Contractor'sdetails]underlicencefromthe Crownin Rightof the Stateof Victoria.
(d) The Contractor must comply with any standards, directions and specifications notified in writing by the State from time to time during the Term as to the appearance, colour, size and positioning of the Trade Marks and the footnote referred to in clause 51.18(c)(ii) and allow the State to inspect its premises and items using the Trade Marks at any time.
15(e) The Contractor must not use the Trade Marks in a manner which is prejudicial to the State or likely to
prejudice the distinctiveness of the Trade Marks or the validity of any registration for a Trade Mark. This provision will survive the expiry or termination of this Agreement.
(f) The Contractormustnot at any timeduringthe Termuse the TradeMarksin juxtapositionto any other trademark, embellishmentor devicewithoutthe prior writtenconsentof the State .
20...
Page 35
Note 1: Section 51.18(a) may conflict with advice provided by the Department of Justice - State of Victoria.
Note 2: The author is unaware of any updates to this agreement, thus the contractual terms may be out of date.
Who is Tenix?
Tenix Solutions IMES Pty Ltd is a registered company in the Commonwealth of Australia (ABN 47 126 390 378)
5[6]; the ultimate holding company is Olbia Pty Ltd (ABN 64 000 305 304) [7]. Further company information can
be obtained via ASIC which will validate this fact; part of the company extract is provided as evidence [8]. The company structure/hierarchy is presented.
Hence, Tenix Solution IMES Pty Ltd is owned by Olbia Pty Ltd.
10Who is Olbia?
Page 36
Olbia Pty Ltd comprises of eight shareholders, four individual people and four companies; the shareholder structure is presented (information obtained from ASIC Company Extract [9]).
Without further investigation, it may be (wrongly) assumed that each of the four company shareholders are
5owned or controlled by the respective individual shareholders (Paul Salteri, Robert Salteri, Mary Victoria Shaw,
Adriana Bianca Gardos); the website manta.com provides information that Paul Salteri is a director of Pasagean Pty Ltd and Adriana Bianca Gardos is a director of Clurname Pty Ltd [10] [11].
The four individuals who are shareholders of Olbia Pty Ltd are children of the late Carlo Salteri; Carlo Salteri died in 2010 [12].
10
Page 37
Hence, Tenix Solutions IMES Pty Ltd, the companythat issues infringementnotices and infringementwarrants is a familyownedcompanyof the Salteri family. According to the BRW Rich 200 list, the Salteri family was ranked as the 7th wealthiest family in Australia ($1.18B). [13]
Summary
5In summary, based on the evidence provided:

Civic Compliance Victoria and CCV are trade marks. CCV is not a corporation, entity, government department or administrative body. Tenix Solutions IMES Pty Ltd has (exclusive) license to use the CCV trade marks. Tenix Solutions IMES Pty Ltd has a five year contract with the State of Victoria valued at approximately $332.1M.
10

The ultimate holding company of Tenix Solutions IMES Pty Ltd is Olbia Pty Ltd. Olbia Pty Ltd is owned by the billionaire Salteri family.
References
1. 152. 3. 4. 5. 206. 7. 8. 9. 10. 2511. 12.

13.
About Civic Compliance Victoria (online.fines.vic.gov.au) Letter from Department of Justice, 28 June 2011 (exfacie.com) IP Australia (ipaustralia.gov.au) Letter from Department of Justice, 9 August 2011 (exfacie.com) Contract 015-07-08, Infringement Management and Enforcement Services Agreement (tenders.vic.gov.au) ABN Lookup for Tenix Solutions IMES Pty Ltd (abr.business.gov.au) ABN Lookup for Olbia Pty Ltd (abr.business.gov.au) ASIC Company Extract for Tenix Solutions IMES Pty Ltd (part only) (exfacie.com) ASIC Company Extract for Olbia Pty Ltd (part only) (exfacie.com) manta, About Clurname Pty Ltd (manta.com) manta, About Pasagean Pty Ltd (manta.com) Laying foundations of modern Australia, The Sydney Morning Herald (smh.com.au) BRW Rich 200 list (wikipedia.org)
END QUOTE Civic Compliance Victoria Explained
30We also have to consider the following:

http://www.slashdocs.com/qsqsu/sir-harry-gibbs-on-the-constitutional-crisis.html QUOTE Sir Harry Gibbs On The Constitutional Crisis
35Documents > Science & Technology

5
Page 38 RSS Sir Harry Gibbs On The Constitutional Crisis 5 10 Shared By:Love For Life Date:2011-02-21 00:08:05 Source:Scribd Store:Free Docs Category:Science & Technology Tags:Supreme Court > Political System > Sir Harry > Federal Court > Chief Justice Archives:Feb 21st, 2011 > Week 08, 2011 > February, 2011 Format:pdf Length:4 Pages Copyright:Attribution Non-commercial Abstract:EXPLANATORY STATEMENT - I am a former member of the High Court and I wish to take this unusual method of informing you about a matter that is going to deeply affect us all. Unfortunately, a document such as this is too easily lost in the bureaucratic jungle in which we operate. A group of Australian Citizens have taken it upon themselves to test the validity of our current political and judicial system. Like you, I have lived my entire legal career with the assumption that the basis for our legal and political system, state and federal, was written in stone. This group has undertaken to present this paper when they test the legal system. Towards the end of this letter, Sir Harry Talbot Gibbs goes on to say I therefore have come to the conclusion that the current legal and political system in use in Australia and its States and Territories has no basis in law.-----------------------------------------------------------Taken from here: http://www.gibbschambers.com/history.htmThe Rt Hon Sir Harry Talbot Gibbs gave long and distinguished service to the nation in many fields: as a barrister; a member of the armed services; a member of the University of Queensland Faculty of Law; a judge of the Supreme Court of Queensland, of the Federal Court of Bankruptcy, and of the Supreme Court of the Australian Capital Territory; and as a Justice of the High Court and ultimately as Chief Justice of Australia.Born in Sydney in 1917, Sir Harry was educated at the Ipswich Grammar School and the University of Queensland. He graduated with the degrees of BA and LLB, both with first class honours and was admitted to the Queensland Bar in 1939.Sir Harry served in the army during the Second World War from 1939 to 1945. He was mentioned in dispatches.Once demobilised, Sir Harry resumed his practice at the Bar. Returning to study, Sir Harry was awarded the degree of LLM in 1946. He tool silk in 1957. Sir Harry was appointed to the Supreme Court of Queensland in 1961. In 1967 he became a Judge of the Federal Court of Bankruptcy and the Supre Favourite: Copy of Letter from Sir Harry Gibbs Page 1 EXP LANATOR Y STATEMENT I am a former member of the High Court and I wish to take this unusual method of informing youabout a matter that is going to deeply affect us all. Unfortunately, a document such as this is tooeasily "lost" in the bureaucratic jungle in which we operate.A group of Australian Citizens have taken it upon themselves to test the validity of our currentpolitical and judicial system. Like you, I have lived my entire legal career with the assumption thatthe basis for our legal and political system, state and federal, was written in stone. This group hasundertaken to present this paper when they test the legal system.The group is articulate, well educated and counts some of our best legal minds amongst itsmembers. One of Australia's best known barristers is one of the groups leading lights. It is farbetter informed with regard to international law than most members of the judiciary or for thatmatter, the legal academe. It has better international contacts than I would have thought possible.After spending some time with the group leader, I was able to elicit its primary intentions. It is theintroduction of a totally democratic system of government devoid of party politics operated by thewill of the people incorporating a system of debit taxation which should go a long way to eliminatingthe current unemployment problem and also addressing other pressing social issues. An A.B.S.financial model supports the proposal.The group has so far concentrated on matters relating to taxation, state and federal, minor industrialand motor traffic while
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Page 39 undertaking not to present a criminal defence using their currentpresentation. I challenged the leader of this group to present any evidence he had with regard tothe above defence so I could use my legal expertise to play the part of the devil's advocate. It shouldbe brought to your attention that the group has access to documentation that we members of the judiciary have little knowledge. I refer to the British Parliamentary Papers for the Colony of Australiafor the years 1860 through to 1922.These are photocopies of all documents correspondence etc., between the states and later theCommonwealth of Australia, the British Crown and the British Government. They are very revealingdocuments and indicate the degree of chicanery in which the politicians of all shades were involvedand as I can now see, at the expense of the legal academe and the judiciary. I present for yourperusal the details of the group's presentation along with my comment on each major item. Thegroup relies solely upon historical fact and rejects political rhetoric and legal opinion unless basedupon historical fact.1. "The Commonwealth of Australia Constitution Act 1900 (UK) is an act of the parliament of theUnited Kingdom. It did not contain any substance of sovereignty and was a colonial act centralisingself-government of the six Australian Colonies. Australia remained a colony of the United Kingdom."1a. Although the late Lionel Murphy attempted to show that there was an element of sovereignty inthis act he failed. The international definition of sovereignty has been espoused at length and theabove act although important in the development of Australia, did not have the authority of sovereignty. The historical evidence that Australia remained a British Colony post 1901 isoverwhelming. Copy of Letter from Sir Harry Gibbs Page 2 2. Australia made an international declaration of its intention to become a sovereign nation when Prime Minister Hughes and his deputy; Sir Joseph Cook signed the Treaty of Versailles on June 28, 1919. On its cognisance of signing this treaty, Australia was granted a C class League of Nations mandate over former German territories in the Pacific. In effect, Papua New Guinea became acolony of Australia achieving its own independence on 16 September 1975. The League of Nationsbecame part of International Law on 10 January 1920 with Article X of the Covenant of League of Nations guaranteeing the sovereignty of each member, 2A. The Significance of Australia joining the League of Nations as a foundation member has neverbeen addressed in Australia before. Strangely, only one book has ever examined the question of Australian independence. Written by W. J. Hudson and M. P. Sharp in 1988 "AustralianIndependence" printed by Melbourne University Press. As both were members of the Departmentof Foreign Affairs and Trade at the time of authorship and had access to the, British ParliamentaryPapers, I find it most interesting they have avoided any mention of these papers in their book. Theirconclusion that Australia became an independent nation via. the Statute of Westminster in 1931flies in the face of contradictory evidence within the above mentioned papers and readily availablehistorical fact.Prime Minister Hug hes address to the Commonwealth Parliament on 10 September 1919, Australia has now entered into a family of nations on a footing of equality. Australia has been born in a bloodsacrifice." demonstrates the politicians of the day were only too well aware of the change of statusfrom a colony to that of sovereign nation while attempting to remain within the Empire.Prime Minister Bruce made this reply to the British Government in 1922 after a request for troopsagainst Kernel Ataturk in the Chanak crisi s. Bruces reply is contained in the British ParliamentaryPapers: We have to try to ensure there shall be an Empire foreign policy which if we are to be in anyway responsible for it, must be one to which we agree and have assented. If we are to take anyresponsibility for the Empire's foreign policy, there must be a better system, so that we may beconsulted and have a better opportunity to express the views of the people of this country. Wecannot blindly submit to any policy which may involve us in war." This is a far cry from thedeclaration of war against Germany made on behalf of the British Colony of Australia by George V of the United Kingdom in 1914.I have re-produced Bruce's reply in full as I believe this reply contains clear historical evidence of aPrime Minister who was well aware of the change of status from a. colony to a sovereign nation.The later Statute of Westminster 1931 was an acknowledgment of that status.3. "Paragraph 4 of the Statue of Westminster Act 1931 contravenes Article X of the Covenant of theLeague of Nations. Paragraph 1 of the Australia Act 1986 contravenes Article 2 paragraphs 1 and 4of the Charter of the United Nations."3A Paragraph 4 of the Statute of Westminster reads "No Act of Parliament of the United. Kingdompassed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion aspart of the law of that Dominion, unless it is expressly declared in that Act that Dominion, hasrequested, and consented to the enactment thereof." Paragraph 1 of the Australia Act is verysimilar : No Act of the Parliament of the United Kingdom passed after the commencement of this Copy of Letter from Sir Harry Gibbs Page 3 Act shall extend, or be deemed to extend, to the Commonwealth, to a State or Territory as part of the law of the Commonwealth, of the State or of the Territory."I passed this one to the Federal Attorney General and asked him what was the source of this quiteincredible authority that sought to overturn the authority legislated within
Page 40 the Covenant of theLeague of Nations in Article X and the Charter of the United Nations in Article 2 paragraphs 1 and 4.He is unable to provide any documentation to support these clauses, Article X of the Covenant of theLeague of Nat ions states: 5 The members of the League undertake to respect and preserve againstexternal aggression the territorial integrity and existing political independence of all Members of theLeague. In case of any such aggression or in case of any threat or danger of such aggression, theCouncil shall advise upon the means by which this obligation shall be fulfilled."It is appropriate that I now introduce a statement by Sir Geoffrey Butler KBE, MA and Fellow,Librarian and Lecturer in International Law and Diplomacy of Corpus Christi College, Cambridgeauthor 10 of A Handbook to-the League of Nations" used as a reference to the League by virtually allnations at that time. He refers to Article 1 of the Covenant of the League of Nations."It is arguable that this article is the Covenant's most significant single measure. By it the BritishDominions, namely New Zealand, Australia, South Africa, and 15 Canada, have their independentnationhood established for the first time. There may be friction over small matters in giving effect tothis internationally acknowledged fact but the Dominions will always look to the League of NationsCovenant as their Declaration of Independence.Article 2 paragraph 1 of the United Nations Charter states "The Organisation is based on theprinciple of the sovereign equality of all its Members."Article 2 paragraph 4 of the Charter states 20 All members shall refrain in their international relationsfrom the threat or use of force against the territorial integrity or political independence of any state,or in any other manner inconsistent with the Purposes of the United Nations."In view of the above, the historical evidence for Australian Independence by 10 January 1920 whenthe League of Nations became part of International Law is overwhelming. When this evidence isreinforced 25 with the contents of the Charter of the United Nations, the continued usage of anylegislation that owes its very legitimacy to the parliament of an acknowledged foreign power cannotbe supported by either legal opinion or indeed historical evidence.Following discussions with members of the British Government relating to the Letters Patent for theGovernor General and State Governors I find that these documents no longer have any authority.Indeed, the Queen of the United, Kingdom is excluded from any position of power in Australia by 30 theUnited Nations Charter and is excluded under UK law from the issue of a Letters Patent to other thana British Subject. A Letters Patent must refer to an action to be taken with regard to British Citizens.The Immigration Act. 1972 UK defines Australian Citizen as aliens.The Governor Generals Letters Patent is a comedy of errors. We are greeted in the name of theQueen of Australia who suddenly 35 becomes the Queen of the United Kingdom in the next paragraphI therefore have come to the conclusion that the current legal and political system in use inAustralia and its States and Territories has no basis in law. Copy of Letter from Sir Harry Gibbs Page 4 END QUOTE Sir Harry Gibbs On The Constitutional Crisis
This very much also underlines what I stated in my past correspondences in regard of this matter. We therefore do not seem to have any valid kind of court system, as provided for within Chapter III of the (federal) constitution (in which in s106 the States are created), and therefore what must be attended to is what kind of law enforcement is any Sheriff's Office involved with? 45Say, that the Sheriff's Office, despite my numerous correspondences on this issue suddenly decide to intercept me and execute their purported warrant and my 80 year old wife as result has a heart attack and dies. Then I view the Sheriff's Office, and so the Sheriff, as well as others can be held personally liable for their wrongdoings because I challenged from onset the validity of any Infringement Notice, and any purported Infringement Court order.
50
40
Hansard 1-3-1898 Constitution Convention Debates QUOTE Sir JOHN DOWNER.I think we might, on the attempt to found this great Commonwealth, just advance one step, not beyond the substance of the legislation, but beyond the form of the legislation, of the different colonies, and say 55 that there shall be embedded in the Constitution the righteous principle that the Ministers of the Crown and their officials shall be liable for any arbitrary act or wrong they may do, in the same way as any private person would be. END QUOTE
Page 41
Again I rely upon the decision (quoted below also) of International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49 (12 November 2009)
(http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2009/49.html?stem=0&synonyms=0&query=taylor %20and%201979%20and%20hca%20and%202009)
5
I will quote now of some of my own correspondences also but it must be understood this is only as examples of a range of correspondences and all correspondences are to be considered, as the quoted samples are not intended and neither must be perceived to raise all relevant issues/details.
10QUOTE 23-2-2011 correspondence
WITHOUT PREJUDICE Victorian Police

Victoria Police Centre, G.P.O Box 913 Melbourne, VIC, 3001, AUSTRALIA
23-2-2011
15C/o heidelberg.uni@police.vic.gov.au
Cc; Civic Compliance Victoria GPO Box 1916, Melbourne VIC 3001
20
Ethical Standards Department Victoria Police Unit Victoria Police Centre, 737 Flinders Street, Melbourne 3005 Phone 1300 363 101, Facsimile 9247 3498
Ref: Obligation Number 1106575301 25Sir/Madam, It may not been known to you but in recent State elections I was a candidate promoting very much the (federal) constitution because this is the basis of all Australian law. After all it is within s.106 of this constitution that the States are created out of the colonies.
.
30As a CONSTITUTIONALIST I consider it essential that we do adhere to the constitution and so its true meaning and application as to do otherwise would invite dictatorship, tyranny and anarchy and surely the Victorian Police would not want to promote this?
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Within the constitution we have the embedded legal principle of CIVIL RIGHTS and as the 35Victorian Police is noted on the Infringement Notice to The Operator (0201683566) then obviously you refer to the Operator of the vehicle concerned and not to the owner. I admit I never had any formal education in the English language and neither was English my native language but to me the term Operator is the person that actually controls the vehicle where as the owner may be a person who may not even drive any motor vehicle at all but has others doing 40so. So, the issue is if you forwarded the Notice to the Operator or not. Obviously the issue then is who is the person (Operator) referred to. Well It refers to SCHOREL-HLAVKA GERRIT H I am not aware such a person exist by such a name. I am Gerrit Hendrik Schorel-Hlavka and within my CIVIL RIGHTS I am entitled to have people using my correct name and as such if you are referring to some fictional upper case name then have your 45litigation against a fictional person but if you do mean to refer to me then kindly refrain from interfering with my CIVIL RIGHTS as to the usage of my surname. As the Infringement Notice does indicate that under the Crimes Act 1958 (which carries a maximum term of imprisonment of 10 years) to provide false or misleading information then whomever concocted my surname in all upper case letters clearly gave misleading information! 50The legal doctrine of ex turpi causa non oritur action (You cannot come to court with dirty hands) denies any remedy to a litigant (including a prosecutor or defendant) who does not come to court with clean hands. As such the Victorian Police cannot go to court to pursue proper enforcement of law against me when it violates my CIVIL RIGHTS to be referred to as I have my name and that is Gerrit Hendrik Schorel-Hlavka. After all unless and until the
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police does appropriately refer to my name it has no position to go to court in that regard because it would indicate to the court it TAKE THE LAW INTO ITS OWN HANDS and so has no position then to seek the court to enforce the rule of law.
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5As a CONSTITUTIONALIST I also am well aware that the Framers of the Constitution specifically devised a democratic system based upon the Magna Carta and other provisions!
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http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query= %22thi+act+and+all+law+made+by+the+parliament%22#fn50 10QUOTE Constitutional interpretation The starting point for a principled interpretation of the Constitution is the search for the intention of its makers[51]. END QUOTE
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HANSARD 17-3-1898 Constitution Convention Debates QUOTE Mr. BARTON.- Of course it will be argued that this Constitution will have been made by the Parliament of the United Kingdom. That will be true in one sense, but not true in effect, because the 20 provisions of this Constitution, the principles which it embodies, and the details of enactment by which those principles are enforced, will all have been the work of Australians. END QUOTE
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HANSARD 17-3-1898 Constitution Convention Debates 25QUOTE Mr. BARTON.- Having provided in that way for a free Constitution, we have provided for an Executive which is charged with the duty of maintaining the provisions of that Constitution; and, therefore, it can only act as the agents of the people. END QUOTE
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HANSARD 17-3-1898 Constitution Convention Debates QUOTE Mr. DEAKIN.- In this Constitution, although much is written much remains unwritten , END QUOTE
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HANSARD 17-3-1898 Constitution Convention Debates QUOTE Mr. DEAKIN.What a charter of liberty is embraced within this Bill-of political liberty and religious liberty-the liberty and the means to achieve all to which men in these days can reasonably aspire . A charter of 40 liberty is enshrined in this Constitution, which is also a charter of peace-of peace, order, and good government for the whole of the peoples whom it will embrace and unite. END QUOTE
The following will also make clear that the Framers of the Constitution intended to have CIVIL 45RIGHTS and LIBERTIES principles embedded in the Constitution;
HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. CLARK.for the protection of certain fundamental rights and liberties which every individual citizen is entitled to 50 claim that the federal government shall take under its protection and secure to him. END QUOTE
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HANSARD18-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) 55QUOTE Mr. ISAACS.The right of a citizen of this great country, protected by the implied guarantees of its Constitution , END QUOTE
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HANSARD 27-1-1898 Constitution Convention Debates 60QUOTE
Page 43 Mr. BARTON.-Our civil rights are not in the hands of any Government, but the rights of the Crown in prosecuting criminals are. END QUOTE
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5Hansard 1-3-1898 Constitution Convention Debates QUOTE Mr. HIGGINS.-But suppose they go beyond their power?
Mr. GORDON.-It is still the expression of Parliament. Directly a Ministry seeks to enforce improperly 10 any law the citizen has his right. END QUOTE
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Hansard 8-2-1898 Constitution Convention Debates QUOTE

15
Mr. OCONNOR (New South Wales).-I have mentioned before the reasons, and they appear to me to be very strong, why these words should be retained. The honorable member will not deny that there should be a guarantee in the Constitution that no person should be deprived of life, liberty, or property without due process of law. The simple object of this proposal is to insure that no state shall violate what is one of the first principles of citizenship.
20END QUOTE
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Mr. OCONNOR.-With reference to the meaning of the term due process of law, there is in Baker's Annotated Notes on the Constitution of the United States, page 215, this statementDue process of law does not imply that all trials in the state courts affecting the property of persons must be by jury. The requirement is met if the trial be in accordance with the settled course of judicial proceedings, and this is regulated by the law of the state. If the state law provides that there shall be a due hearing given to the rights of the parties-
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Mr. BARTON.-And a judicial determination. Mr. OCONNOR.-Yes, and a judicial determination-that is all that is necessary.
END QUOTE
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Hansard 31-1-1898 Constitution Convention Debates 35QUOTE Mr. SOLOMON.We shall not only look to the Federal Judiciary for the protection of our interests, but also for the just interpretation of the Constitution: END QUOTE
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40Hansard 31-1-1898 Constitution Convention Debates QUOTE Mr. SOLOMON.Most of us, when we were candidates for election to the Federal Convention, placed great stress upon it as affording a means of bringing justice within easy reach of the poor man. END QUOTE
45.
As you may be aware the State of Victoria has abolished unsworn statements and as such we cannot have that some alleged speed detection device gives evidence as to an alleged offence because it must be sworn in or give an affirmation that it will tell the truth the whole truth and nothing but the truth (well to that nature) and I must be able to cross-examine the speed camera if 50it took the alleged picture of me when it really was aware of the true facts. After all, we have records showing that many motorists were wrongly booked for speeding when it was discovered that someone had wrongly set the camera. Well, it is for this essential that the speed detection device, being called speed camera or whatever is cross-examined as to give evidence in what circumstances it allegedly took a photograph of my vehicle, not that I concede it did!).
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After all, anyone could have tampered with the speed camera unbeknown to the persons who ordinary deal with the camera and so we need to elicit from the camera itself if it was violated or not. We cannot have that we assume that no one interfered with the camera! Also, it is well known that the police when apprehending an alleged law breaker has the right to 5determine if it will or will not issue an infringement notice. Obviously it is important that I cross examine the speed detection unit (speed camera) if it did apply this kind of reasoning and if not why not as we cannot have different kind of standards applied. Fancy a police officer accepting I had a valid excuse (not that I concede or imply I was exceeding any speed limits) to speed and the camera denies me the same courtesy. We would have then two different kinds of standards of 10law enforcement and that in my view would be highly inappropriate. So, I will have to question the speed camera (Ok by now you know I am referring to some speed detection device) as to the weather conditions, the possibility of being side tracked to other matters that could have caused a misinterpretation of details. After all we do have speed cameras who recorded trees to be speeding at 78 kilometres or more even so neither the tree or the camera 15was moving and we wouldnt want to have this kind of error causing an injustice, would we? So, I better cross-examine the speed camera as to if it has such kind of malfunction. We all are familiar with computers and the blue screen a computer at times causes to provide and so computers are vulnerable to all kind of problems and I am well entitled to verify with the speed camera, and obviously under oath or affirmation, that the various elements didnt interfere with 20its operation. Obviously it would be beyond the knowledge of someone else to give such evidence because that is like me trying to give evidence how you feel and say the migraine you may already have developed just reading this correspondence and you still havent come to the end of it.
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25Hansard 3-3-1898 Constitution Convention Debates QUOTE Mr. KINGSTON.-How would you define the word "citizen"? Mr. SYMON.-I do not think that it is necessary to frame a definition of "citizen." A citizen is one who is entitled to the immunities of citizenship. In short, a citizen is a citizen. I do not think you require a 30 definition, of "citizen" any more than you require a definition of "man" or "subject." Mr. ISAACS.-Would you include a corporation in the term "citizen"? Mr. SYMON.-Why not? Mr. ISAACS.-Well, in America they do not. Mr. SYMON.-I do not see why a corporation existing in one colony should not have the rights of a 35 corporation in another colony. Otherwise you defeat the objects of this Constitution. [start page 1783] Mr. ISAACS.-I agree that that ought to be so, but the word "citizen" will not include a corporation. Mr. SYMON.-Well, in my opinion it should. I END QUOTE
40.
Hansard 3-3-1898 Constitution Convention Debates QUOTE Mr. KINGSTON.-How would you define the word "citizen"? Mr. SYMON.-I do not think that it is necessary to frame a definition of "citizen." A citizen is one who 45 is entitled to the immunities of citizenship. In short, a citizen is a citizen. I do not think you require a definition, of "citizen" any more than you require a definition of "man" or "subject." Mr. ISAACS.-Would you include a corporation in the term "citizen"? Mr. SYMON.-Why not? Mr. ISAACS.-Well, in America they do not. 50 Mr. SYMON.-I do not see why a corporation existing in one colony should not have the rights of a corporation in another colony. Otherwise you defeat the objects of this Constitution. [start page 1783] Mr. ISAACS.-I agree that that ought to be so, but the word "citizen" will not include a corporation. Mr. SYMON.-Well, in my opinion it should. I 55END QUOTE
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Page 45 In Macleod Lord Halsbury L.C. quoted (at p 458) the remarks of Parke B. in Jefferys v. Boosey (at p 926 of HLC (p 725 of ER)): QUOTE (T)he Legislature has no power over any persons except its own subjects, that is, persons natural-born 5 subjects, or resident, or whilst they are within the limits of the Kingdom. END QUOTE
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It is important to be aware if the speed camera would be a person as if the speed camera provided false and/or misleading evidence could it be prosecuted for perjury or conspiracy to 10conspire where it works in tandem with another speed camera? After all we found many Hume Highway infringement notices to be defective as one of the cameras was wrongly set and so was bearing false evidence.
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Sorell v Smith (1925) Lord Dunedin in the House of Lords 15QUOTE In an action against a set person in combination, a conspiracy to injure, followed by actual injury, will give good cause for action, and motive or instant where the act itself is not illegal is of the essence of the conspiracy. END QUOTE
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20As such, we need to establish if the camera is accountable under provisions of law to any false/misleading evidence it may have provided because if you do not apply the same sanctions to a camera whos evidence is relied upon then you are preventing a fair and proper trial to eventuate.
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25All persons giving evidence must be bound by the same laws and legal consequences.
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If a person is going to go up in the witness box to give evidence about the speed camera then this were to admit the speed camera cannot be cross examined and for this cannot be construed to be a credibly witness. Indeed it would fails the first principle of law that it is not a person that can 30be accepted to give unbias evidence because it would be subject to any person who may wrongly set the camera.
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I am also a bit surprised that the Infringement Notice states that I can obtain a image at a payment of $7.50 as I understood that in law no witness can charge for giving evidence as to the 35fact but may claim to the court for expenditure to attend, etc. So, I will look forwards for the speed camera to make its own application to the court for cost it incurred. If the camera cannot produce its own images but this is to be done by some other computer system then oh boy now we get it the camera isnt bearing witness at all because it has no control over who print an image. So, we now have perhaps some other computer system coming to court to give evidence 40as to that the particular image is that as provided by the speed camera. More evidence and I then have to cross examine the computer as to how did it know it didnt misinterpret any transfer of bytes (that is how ordinary computer language is used) or other computer related programs. We cannot merely assume that this doesnt occur because again the darn blue screen on computers are evident it can happen to anyone. And we can hardly have a police officer giving evidence this 45didnt eventuate because how would a police officer know that the bytes of one computer wasnt misinterpreted by another computer program and by this incorrectly printed out an image?
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I had this incident, way back in 1996, when I purchased an old computer and discovered there was such things as hidden files on it. Ok, not then knowing what it stood for I assumed 50something secret and here I was with one of my sons printing it all out. Boy, did the printer have a job. In the end we couldnt find anything secret in it and so deleted the lot. Ok, now we discovered the darn computer no longer wanted to work with certain programs and having the print out I had to recreate the hidden files and well after weeks of slogging it out we finally were able to get it going , hidden files and all. I learned from this that no matter if you know 55nothing about computers it was obvious that I (and not to forget my son) was able to recreate
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computer files. So, it is then obvious that I desire to cross-examine the relevant computer if it had any kind of tampering/replacement of its files that may have affected its print out?
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Also, why on earth should I have to pay $7.50 for a print out that besides not reliable is allegedly 5evidence against me? Surely if the speed camera is alleging I was speeding (not that I concede I was in breach of any laws and neither that I was the person referred to in upper case letters) then it must provide the evidence free of charge. As any accused is entitled to be made aware of what purported evidence is used against him/her.
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10Commonwealth of Australia Constitution Act (The Constitution) QUOTE Part VPowers of the Parliament 51 Legislative powers of the Parliament [see Notes 10 and 11] The Parliament shall, subject to this Constitution, have power to 15 make laws for the peace, order, and good government of the Commonwealth with respect to: END QUOTE
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QUOTE 20 (xv) weights and measures; END QUOTE

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Oops, I will have to cross-examine the speed camera and the computer if they both were actually approved within the legal provisions of the Commonwealth of Australia as to measuring, etc.
25.
Hansard 21-1-1898 Constitution Convention Debates QUOTE Mr. REID

30
The object is this, that for some time to come it will not be possible for the Federal Legislature to pass laws on these subjects, and it is necessary to have some laws on them-the state laws if they exist-until federal laws are enacted; but the moment a federal law is passed on any one of these subjects, under the provision under the head of "States" the federal law prevails over the state law.
END QUOTE
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35Therefore, unless the equipment used was confirming with and approved under federal laws then the alleged speed infringement notice is of no value for this also.
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Commonwealth of Australia Constitution Act (The Constitution) 40QUOTE Part VPowers of the Parliament 51 Legislative powers of the Parliament [see Notes 10 and 11] The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the 45 Commonwealth with respect to: END QUOTE
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QUOTE (xii) currency, coinage, and legal tender; 50END QUOTE

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QUOTE 115 States not to coin money A State shall not coin money, nor make anything but gold and 55 silver coin a legal tender in payment of debts. END QUOTE
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This means that the offer of paying by Infringement Penalty Payment Method obviously is neither constitutionally valid because it fails to comply with constitutional provisions.
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Look, the Victorian Police as a law enforcement agency obviously must itself comply with the RULE OF LAW and not disregard the proper application of constitutional meanings and provisions (embedded legal principles or otherwise) and so we better make sure that the Victorian Police itself follows proper legal procedures as permissible under the (federal) 5constitution! Obviously, we have also the issue of the Imperial Act Interpretation Act 1980 (Vic) which makes clear that no fines can be issued before conviction. Moment, are you claiming that some court convicted me without judicial determination and without having heard first both parties? I like to have a print out of the evidence given under oath or under affirmation by the relevant 10speed camera and any computer used to produce the said image, if that was at all printed out at the time for the purported court hearing. So, I better get the full transcript of the entire hearing so I can establish what the legal process, if any, was and how it followed constitutional legal principles, etc.
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15I am concerned as to the demand of payment BEFORE CONVICTION BY A COURT OF LAW and the inclusion of FURTHER COSTS WILL BE INCUIRRED IF NO ACTION IS TAKEN BY THE DUE DATE because it is basically an act of terrorism to induce/cause a person to pay up in disregard to his/her constitutional rights. Surely this kind of what I perceive to be BLACKMAIL to extort monies from a citizen without DUE PROCESS OF LAW of a 20JUDICIAL DECISION after hearing both parties cannot be sanctioned and neither should the Victorian Police as a law enforcement agency get involved with such a practice of sheer terrorism because it then has no credibility as a law enforcement agency.
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In case you now may start to claim that those laws were enacted by the Victorian parliament then 25I got news for you. On 19 July 2006, after a 5-year epic legal battle I comprehensively defeated the Commonwealth on FAILING TO VOTE as to show to the County court of Victoria then regardless of whatever the Commonwealth Parliament may have legislated the Framers of the Constitution refused to give the Commonwealth powers to make registration and voting compulsory. So, the existence of legislation itself doesnt mean anything as if it is beyond 30constitutional powers it is a nullity. Ok, this is about speeding and not about FAILING TO VOTE but if you carefully check the 50 odd submissions I placed before the Court and of which none were challenged by the Commonwealth and/or any of the State Attorney-Generals, even so they were all provided with copies of my NOTICE OF CONSTITUTIONAL MATTERS then you find that I actually 35challenged the validity of any lawyer, judge, police officer, parliamentarian, etc, to be validly appointed. You see all those appointments rest with any or all of them having a nationality of Australian Citizenship and the problem is that constitutionally no such nationality exists! While the 1988 Royal Commission assumes that the Commonwealth could legislate as to a nationality of Australian citizenship the truth is that the constitution doesnt provide for any 40amendment to the (federal) constitution but by way of s.128 referendum. As such if you are going to claim that the 1988 Royal Commission can assume about australian citizenship as a nationality then I will assume all speed cameras are my person property and I cannot be forced to give evidence against myself.
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45It must be clear that the terminology used by the Framers of the Constitution are; British subject, to make persons subjects of the British Empire. , with the consent of the Imperial authority, What is meant is a dual citizenship in Mr. Trenwith and myself. That is to say, I am a citizen of the state and I am also a citizen of the Commonwealth; that is the dual citizenship., we are all alike subjects of the British Crown. We have a High Court of 50Australia that appears to me being political motivated to try to alter the Constitution by stealth in the Sue v Hill case by endorsing a substitute Constitution! The question is if the judges of the High Court of Australia committed TREASON?
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15
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Mr. SYMON.-Very likely not. What I want to know is, if there is anybody who will come under the operation of the law, so as to be a citizen of the Commonwealth, who would not also be entitled to be a citizen of the state? There ought to be no opportunity for such discrimination as would allow a section of a state to remain outside the pale of the Commonwealth, except with regard to legislation as to aliens. Dual citizenship exists, but it is not dual citizenship of persons, it is dual citizenship in each person. There may be two men-Jones and Smith-in one state, both of whom are citizens of the state, but one only is a citizen of the Commonwealth. That would not be the dual citizenship meant. What is meant is a dual citizenship in Mr. Trenwith and myself. That is to say, I am a citizen of the state and I am also a citizen of the Commonwealth; that is the dual citizenship. That does not affect the operation of this clause at all. But if we introduce this clause, it is open to the whole of the powerful criticism of Mr. O'Connor and those who say that it is putting on the face of the Constitution an unnecessary provision, and one which we do not expect will be exercised adversely or improperly, and, therefore, it is much better to be left out. Let us, in dealing with this question, be as careful as we possibly, can that we do not qualify the citizenship of this Commonwealth in any way or exclude anybody [start page 1764] from it, and let us do that with precision and clearness. As a citizen of a state I claim the right to be a citizen of the Commonwealth. I do not want to place in the hands of the Commonwealth Parliament, however much I may be prepared to trust it, the right of depriving me of citizenship. I put this only as an argument, because no one would anticipate such a thing, but the Commonwealth Parliament might say that nobody possessed of less than 1,000 a year should be a citizen of the Federation. You are putting that power in the hands of Parliament. Mr. HIGGINS.-Why not?
25
Mr. SYMON.-I would not put such a power in the hands of any Parliament. We must rest this Constitution on a foundation that we understand, and we mean that every citizen of a state shall be a citizen of the Commonwealth, and that the Commonwealth shall have no right to withdraw, qualify, or restrict those rights of citizenship, except with regard to one particular set of people who are subject to disabilities, as aliens, and so on. END QUOTE
30.
Ok, now that we are onto amending the constitution, and again I am a CONSTITUTIONALIST, then lets have a look as the Victorian Constitution. Did you know that no State constitution can be amended but by a proposal by the State Parliament to the State electors by way of State Referendum to amend the State Constitution?
35.
HANSARD 17-3-1898 Constitution Convention Debates QUOTE Mr. SYMON (South Australia).- We who are assembled in this Convention are about to commit to the people of Australia a new charter of union and liberty; we are about to commit this new Magna Charta 40 for their acceptance and confirmation, and I can conceive of nothing of greater magnitude in the whole history of the peoples of the world than this question upon which we are about to invite the peoples of Australia to vote. The Great Charter was wrung by the barons of England from a reluctant king. This new charter is to be given by the people of Australia to themselves . END QUOTE 45. HANSARD 17-3-1898 Constitution Convention Debates QUOTE Mr. BARTON.- We can have every faith in the constitution of that tribunal. It is appointed as the arbiter of the Constitution. . It is appointed not to be above the Constitution, for no citizen is above it, but under 50 it; but it is appointed for the purpose of saying that those who are the instruments of the Constitutionthe Government and the Parliament of the day-shall not become the masters of those whom, as to the Constitution, they are bound to serve. What I mean is this: That if you, after making a Constitution of this kind, enable any Government or any Parliament to twist or infringe its provisions , then by slow degrees you may have that Constitution-if not altered in terms-so whittled away in operation that the 55 guarantees of freedom which it gives your people will not be maintained; and so, in the highest sense, the court you are creating here, which is to be the final interpreter of that Constitution, will be such a tribunal as will preserve the popular liberty in all these regards, and will prevent, under any pretext of constitutional action, the Commonwealth from dominating the states, or the states from usurping the sphere of the Commonwealth.
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HANSARD 10-03-1891 Constitution Convention Debates QUOTE 5 Dr. COCKBURN: All our experience hitherto has been under the condition of parliamentary sovereignty. Parliament has been the supreme body. But when we embark on federation we throw parliamentary sovereignty overboard. Parliament is no longer supreme. Our parliaments at present are not only legislative, but constituent bodies. They have not only the power of legislation, but the power of amending their constitutions. That must disappear at once on the abolition of parliamentary 10 sovereignty. No parliament under a federation can be a constituent body; it will cease to have the power of changing its constitution at its own will. Again, instead of parliament being supreme, the parliaments of a federation are coordinate bodies-the main power is split up, instead of being vested in one body. More than all that, there is this difference: When parliamentary sovereignty is dispensed with, instead of there being a high court of parliament, you bring into existence a powerful judiciary 15 which towers above all powers, legislative and executive, and which is the sole arbiter and interpreter of the constitution. END QUOTE
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Hansard 15-9-1897 Constitution Convention Debates 20QUOTE The Hon. A. DEAKIN: I say the great bulk of them are of that character, and am open to refutation if I am wrong, I should say that the whole of the thirty-seven subjects, but, indisputably, the great bulk of them, are subjects on which no question of state rights and state interests could arise except by the merest accident. It is, as the right hon. gentleman admitted, a grave defect in our constitution if we permit these questions to be left for all time to be determined in a purely states house, or by a state referendum, when those questions are not state questions-when they ought to be decided, not on state lines, but on national lines, and by a national referendum.
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END QUOTE
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30If therefore the purported Victorian Constitution Act 1975, etc, was not approved by a State referendum then it has no constitutional validity at all. It means that then neither any purported legislation enacted within this purported Victorian Constitution Act 1975 has any validity. It also means that it is so to say up the creek as to who is validly appointed to be legal practitioners and indeed lawyers, judges, police officers, etc. 35Further, within our constitutional context all and any legislation must be enacted within the provisions of the Crown. That is what a constitutional parliament only can do. It has no powers to do otherwise. It also means that any charges are to be made in the name of the Crown. No State has the constitutional powers (see above) to twist or infringe upon the true meaning of the constitution and as such unless any claims are made in the name of the Crown it holds no legal 40basis.
Commonwealth of Australia Constitution Act (The Constitution) QUOTE 117 Rights of residents in States A subject of the Queen, resident in any State, shall not be subject 45 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. END QUOTE
50This means that where the Infringement Notice claims that I have Demerit Points: 1 then unless this is applicable as such to every other citizen in the Commonwealth of Australia who allegedly committed the same offence (again not that I admit to such an offence having eventuated) then this too is unconstitutional. After all each state has its own point system and by this the application of a demerit point to a Victorian driver is not applied likewise to certain 55Interstate drivers and as such by this is unconstitutional. And, again such a fine, as it is perceived to be a penalty, cannot be applied unless there was a judicial determination after both parties were given the opportunity to present their respective cases.
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I then wonder why the Infringement Notice refers under 3 refers to Have the matter heard and determined in Court as this implies to me the Victorian Police so to say is operating some kind of shonky business of an extortion racket to terrorist motorist/owners of motor vehicles, etc, as to pay up on an alleged fine without any judicial decision and so without DUE PROCESS OF 5LAW! Fancy this to be called LAW ENFORCEMENT!
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Hansard 17-9-1897 Constitution Convention Debates QUOTE The Hon. Sir J.W. DOWNER (South Australia)[4.10]: I have none of the fears of my colleague, who has just 10 resumed his seat. The safety-valves he spoke about are created in the governments which we know as constitutional governments by providing judicious checks on hasty legislation. My hon. friend has just been arguing that these most necessary and legitimate checks are in themselves dangerous to society, likely to produce rebellion, and to land us in civil war. END QUOTE
15.
You may find plenty of lawyers in any Parliament but none are CONSTITUTIONALIST as I am but they might also be plenty of rock stars, sport stars, etc, and none of them having a clue what is constitutionally appropriate, applicable and permissible. And I recognise the Victorian Police may continue this charade against me in the courts and then faced I will OBJECT TO 20THE JUSRISIDICTION OF THE COURT because of what is stated above as well as upon what was before the County Court of Victoria on 19 July 2006 and so the Court cannot proceed against me but in the alternative I also am aware the Victorian Police can instead apologise for writing my name incorrectly, making unsupported allegations against me and withdrawing its purported Infringement Notice 1106575301unconstitutionally and will not pursue the matter ever 25again against me because failing this I can assure you I will defend my constitutional rights and the Victorian Police may also have to realise that it could ill afford to be comprehensively defeated as then all other persons may likewise rely upon this.
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QUOTE Page 50 of parts 1 & 2 19-7-2013 Re: COMPLAINT -Sheriff-CONTEMPT OF COURT etc INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati
Page 51 If You Don't Take Action If you do not pay your fine and you ignore all reminders, the matter becomes more serious and costly. The Infringements Court may issue an infringement warrant, giving the Sheriff power to enforce that warrant. The measures the Sheriff can take to enforce an unpaid infringement warrant include:
the seizure and sale of your property suspension of your driver licence suspension of your vehicle's registration non-renewal of your vehicle's registration wheel clamping of your vehicle your arrest
10
END QUOTE
With a RULE OF LAW to be upheld I have concerns that a so called Infringement Court is not a court that is constitutionally valid and I urge you to avoid anyone, not just myself, to be 15denied our constitutional rights and privileges. After all if the Infringement Court is not a court that facilitate for a proper and fair hearing and doesnt provide for a judicial determination upon hearing evidence of both parties then it is unconstitutional and lacks any enforcement powers! As indicated above if the above purported provisions do not apply likewise to Interstate motorist, then they are unconstitutional! And, as the Victorian Parliament has no legislative powers over 20Interstate drivers to have their interstate drivers licence cancelled, their vehicle registration not being renewed, their vehicle being wheel clamped in another State, their property being seized and sold or hey being arrested interstate then all and any such provisions cannot be enforced upon Victorian motorist either. This is the problem not having a CONSTITUTIONALIST as a member of parliament because rock stars may have rocks in their head but certainly are not 25CONSTITUTIONALIST, They can sing to the tune of the Government of the day and play to the tune of the government policies but it still will not be constitutionally valid. The Marshal or for that any other purported law enforcement authority may in that regard be the lawbreaker! Now, is this the kind of terrorism we should be subjected to?
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30Hansard 1-3-1898 Constitution Convention Debates QUOTE Sir JOHN DOWNER.I think we might, on the attempt to found this great Commonwealth, just advance one step, not beyond the substance of the legislation, but beyond the form of the legislation, of the different colonies, and say that there shall be embedded in the Constitution the righteous principle that the Ministers of the 35 Crown and their officials shall be liable for any arbitrary act or wrong they may do, in the same way as any private person would be. END QUOTE
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Those who are wheel clamping, etc, may just discover they are in violation of constitutional 40rights of the motor vehicle owners/drivers and may just discover that they can be personally sued for doing so. As the Neurenberg trials made clear that claiming to following orders is no excuse! We have a constitution and we are bound to act within its provisions!
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As for making an application to go to court, now isnt that darn silly? I object to the jurisdiction 45of the Court and as such cannot make an application that undermines my objection. If the Victorian Police pursues this matter then it must be by now aware it and it alone has to take the matter to court as the legislation cannot be constitutionally valid to place the onus upon me to apply to a court for the prosecutor to litigate against me. That is the job of a prosecutor and
Page 52
failing the prosecutor to take the matter to court there is in that case neither any jurisdiction for any court under whatever name it may purport to operate to invoke jurisdiction.
.
The above stated must not be perceived and neither is intended to indicate that I in any way 5implied or otherwise conceded to have been in breach of law and/or that this is the totality of what I had to state because it must be obvious that my reference to the 19 July 2006 decision of the County Court of Victoria regarding constitutional and other legal issues then also is now relied upon by me and the Victorian Attorney-General at the time, despite having been given an opportunity to dispute my submissions didnt do so and neither appealed the courts decision and 10as such the State of Victoria, so any law enforcement agency, is bound by it!
.

.
(Our 15
name is our motto!)

.
. Awaiting your response, G. H. Schorel-Hlavka
20END QUOTE 23-2-2011 correspondence
QUOTE 30-5-2011 correspondence
WITHOUT PREJUDICE Ted Baillieu Premier 25ted.baillieu@parliament.vic.gov.au C/o Victorian Police

Victoria Police Centre, G.P.O Box 913, Melbourne, VIC, 3001, AUSTRALIA
30-5-2011
heidelberg.uni@police.vic.gov.au 30
Cc; Civic Compliance Victoria GPO Box 1916, Melbourne VIC 3001 Traffic_Inquiries@tenixsolutions.com
35
Ethical Standards Department Victoria Police Unit, Victoria Police Centre, 737 Flinders Street, Melbourne 3005 Phone 1300 363 101, Facsimile 9247 3498
Ref: Obligation Number 1106575301 Re: COMPLAINT 40Ted, Is it too much to ask if Law & Order is to be applied according to law? .
5
Page 53
I received an infringement notice in the mail upon which I responded that if the police desired to pursue the matter it could elect to take the matter to court. I did not receive any response to my 23 February 2011 correspondence and neither so to my 23 March 2011 correspondence as to if the police would take the matter to court. I did receive however a new infringement notice 5(Which itself is not instituting legal proceedings as such in a court of law.) claiming I had failed to respond and now with an increased penalty and a warning that wheel clamps may be used, etc. I am a CONSTITUTIONALIST and also Author of books in the INSPECTOR-RUKATI series on certain constitutional and other legal issues and can assure you that as the States are created within s106 of the Commonwealth Constitution Act 1900 (UK) then this kind of 10government sponsored terrorism upon me isnt going to work. As the Framers of the Constitution made clear that DUE PROCESS OF LAW is where there is a judicial determination after both parties have been heard! As such, it is not relevant what alternative legal processed the Parliament of Victoria may have provided for because no Parliament can overrule the constitution! Now, if you got some police wanting to take the matter 15to court then that is up to the police concerned but unless and until they do so I have no legal responsibilities as the Imperial Act Interpretation Act 1980 prohibits a fine before conviction and certainly increasing a fine before conviction.
.
While the Infringements Act 2006 legislation refers to infringements registrar and warrant 20issue, etc, lets make it very clear I hold this kind of legislation is unconstitutional and so is and remains ULTRA VIRES unless and until the prosecutor can obtain a ruling otherwise. As such, if the police prosecutor cannot obtain an order to declare the legislation and/or any part thereof to be INTRA VIRES then the legislation is not enforceable from this moment. And this means that the Infringement Act from now on neither is enforceable to any other citizen 25within the State of Victoria either. I will not make this correspondence of great length as neither is there any need for this because the same argument was litigated by me previously extensively in the Magistrates Court at Heidelberg on 4 December 2002 and in the end on 19 July 2006 the County Court of Victoria upheld both my cases against the Crown!
.
30http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query= %22thi+act+and+all+law+made+by+the+parliament%22#fn50 QUOTE Constitutional interpretation The starting point for a principled interpretation of the Constitution is the search for the intention of its 35 makers[51]. END QUOTE
.
Hansard 2-2-1898 Constitution Convention Debates QUOTE Mr. DEAKIN (Victoria).40 The record of these debates may fairly be expected to be widely read, and the observations to which I allude might otherwise lead to a certain amount of misconception. END QUOTE
Where the Government persist in its conduct to even deregister my vehicle and to cancel my 45driving licence without due process of ;law as is guaranteed by legal principles embedded in the constitution then I will not accept this as being valid in law because you may not like it but we do have a constitution and I for one will consider such kind of conduct unlawful!
.
As the High Court of Australia in HCA27 of 199 Wakim case made clear that Mr Gould could 50disregard an unconstitutional court order. Likewise it is not relevant to me if officers may claim they are acting within the provisions of the Infringement Act because as I have challenged the validity of the act upon constitutional grounds that as the Framers of the constitution made clear then the legislation from then on is ULTRA VIRES AB INITIO and it is for the Crown to prove otherwise by obtaining a declaration it is INTRA VIRES.
55.
Page 54
Too often speed detection devises are malfunctioning, as there are ample of court decisions in regard of this and it is not that I have the onus to prove equipment is malfunctioning but for the police to proof it was not. If the Government through any of its agencies or private businesses were to deregister my 5vehicle and/or to cancel my driver licences then from then on never again do I need to hold a drivers licence or to register my vehicle or for that any other vehicle because the Government will have shown that it acted contrary to the purposes for which a person has to obtain a drivers licence (competence in driving) and/or to register a vehicle (roadworthiness, etc) and so has defeated its own legislation by this. A group like UPMART would more then likely welcome this 10because it as I understand it sells its own number plates. You campaigned upon Law & Order and now elected are bound by this and not just use it as some gimmick. If the police desires to pursue me for an alleged infringement then so be it as they then can take the matter to court and face a horrendous obstacle courts in litigation as the Crown discovered in 15the past of a 5 year epic litigation battle and then lost in the end. However, let no one try to act unconstitutional because as I have now challenged the validity of the Infringement Act 2006 your legal advisors, that is if they have had proper education in regard of constitutional matters, will make clear that the Infringement Act 2006 from now on is no more unless a court of competent jurisdiction can prove declare otherwise and only if the prosecutor can prove this.
20.
QUOTE Main v. Thiboutot, 100 S. Ct. 2502 (1980). The law provides that once State and Federal jurisdiction has been challenged, it must be proven. END QUOTE
25QUOTE Hagens v. Lavine, 415 U.S. 533,

Once jurisdiction is challenged, it must be proven END QUOTE QUOTE Standard v. Olsen, 74 S. Ct. 768, No sanctions can be imposed absent proof of jurisdiction . END QUOTE
30
QUOTE Basso v. Utah Power & Light Co., 495 2nd 906 at 910, Jurisdiction can be challenged at any time, even on final determination. 35END QUOTE
.
QUOTE Thompson v. Tolmie, 2 Pet. 157, 7 L.Ed. 381; Griffith v. Frazier, 8 Cr. 9, 3L. Ed. 471. Where there is absence of jurisdiction, all administrative and judicial proceedings are a nullity and confer no right, offer no protection, and afford no justification, and may be rejected upon direct 40 collateral attack. END QUOTE
Act Interpretation Act 1901; (Cth) 15A Construction of Acts to be subject to Constitution
QUOTE 45 Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power. END QUOTE
50.
The High Court of Australia held that where a party pleads the non-application of a State Act because of Commonwealth legislation then the State Court is exercising Federal jurisdiction. (However only if the State Court can invoke jurisdiction, which VCAT cannot and neither is a court!) Troy v Wrigglesworth (1919) 26 C.L.R. 305; 25 (1926) 38 C.L.R. 441; 33 A.L.R. 66.
55.
Page 55
Held by the High Court of Australia that the expression Court or judge of a State does not include a Judge sitting in Chambers exercising the jurisdiction of the Supreme Court. Wilcox v Donohoe, (1905) 3 C.L.R. 83; 12 A.L.R. 54.
.
5Held by the Full Court of the Supreme Court of Queensland that the police magistrate exercising Federal jurisdiction is not an officer of a Federal Court within the meaning of this paragraph (Section 39 of the Judicial Act 1903) R. v. Archdall and Others; Ex parte Taylor, 1919 St. R. Qld 207; 13 Q.J.P.R. 22 C.L.R. 437 in which the High Court (Isaacs, Higgins, Gavan Duffy and Ricch JJ ; Griffith CJ and Barton J dissenting) held that a Judge of an inferior Court of a State 10invested with and purporting to exercise Federal jurisdiction is not an officer of the Commonwealth within the meaning of s. 75 (v) of the Constitution.
.
Held that a State Court exercising federal jurisdiction when it erroneously applies Commonwealth Act to subject matter before the Court . Commonwealth v Cole, (1923) 32 15C.L.R. 602 and Commonwealth v Dalton, (1924) 33 C.L.R.. 452; 30 A.L.R. 85
.
Article 11 of the United Nations Universal Declaration of Human Rights provides: END QUOTE "Everyone charged with a penal offence has the right to be presumed innocent until proved guilty 20 according to law in a public trial at which she/he has had all the guarantees necessary for his defence ." END QUOTE
The legal doctrine of ex turpi causa non oritur action denies any remedy to a litigant (including a prosecutor) who does not come to court with clean hands. If your own action is very unlawful and very unethical, if you come to court with Dirty Hands 25best not to question others legality, morality, and ethics! It seems to me wheel clamping, as I noticed on 29 May 2011 in a (private) car park on private property may be unlawful. Did the Sheriff office then obtain permission to do so in the private car park or merely ignored to check it out to obtain permission?
30Wheel clamping I noticed was applied to cars which were unlawfully parked on nature strips and as such what is eventuating is that the Government is using the sheriffs office to pursue payments but in the process flaunts the law itself as by immobilising vehicles as it prevent the vehicle being moved to a place it can be legally allowed to park. More over when vehicles are parked in a car park then it is taken that the vehicles are movable and do not so to say clog up car 35parking spaced because they are needed for other motorist. As such, if parked cars are immobilised then the government actually is causing traffic problems, traffic congestion and robbing traders of their business because a car immobilised is a denial of opportunity for a trader to have a customer parking there. Indeed, when the immobilisation results to the vehicle to be there longer then permitted by parking regulation then the Government itself is defeating the 40parking limits. We never can tolerate a situation that a motor vehicle is immobilised and by this preventing the motorist of the vehicle to comply with legal provisions to remove the vehicle because to have this kind of situation eventuating then the Government is above the RULE OF LAW and hold its own financial issues above proper application of laws. It may be that a person
5
Page 56
hires a motor vehicle and is unaware to the motor vehicle being during that time deregistered and then the motorist of no fault of himself would be driving an unregistered motor vehicle. The same we have the problem that a motorist could violate laws within the State of Victoria but then moves Interstate and then be free from any sanctions while a motorist in the same situation 5residing within the State of Victoria would have wheel clamping applied. This too is unconstitutional because any law of a State cannot be applied only to people of a certain State but must be to all people regardless of which State they are as such even if it was held wheel clamping is lawful, not that this is conceded, then nevertheless the wheel clamping is to be applied to any motor vehicle regardless of which state the owner resides in an and not that a 10vehicle registered in another State doesnt attract the same penalties and deregistration, etc. But the fact that wheel clamping (immobilisation) itself causes a vehicle to become unroadworthy it of concern because it also is of large banners being glued onto windows which makes by this also the vehicle un-roadworthy. In my view the government cannot authorise the deliberate conduct to make a vehicle that is 15roadworthy to become un-roadworthy because it effectively is contrary to road legislative provision and to do so would in effect advertise to others that they do not need to comply with having their vehicle to be roadworthy because the government itself sells its sole for money and not concerned to the RULE OF LAW. . 20Indeed, if it were to eventuate that a motor vehicle was immobilised and the motorist prevented to make an emergency dash to the hospital then the government could face severe legal consequences because Parliament may legislate as it likes but in the end legislation is only valid if it is within constitutional boundaries and as the Framers of the constitution made clear that the embedded legal principles were to have CIVIL RIGHTS and LIBERTIES;
25HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. CLARK.for the protection of certain fundamental rights and liberties which every individual citizen is entitled to claim that the federal government shall take under its protection and secure to him. 30END QUOTE . HANSARD18-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. ISAACS.35 The right of a citizen of this great country, protected by the implied guarantees of its Constitution , END QUOTE . HANSARD 27-1-1898 Constitution Convention Debates QUOTE 40
Mr. BARTON.-Our civil rights are not in the hands of any Government, but the rights of the Crown in prosecuting criminals are.
END QUOTE . Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian 45Convention) QUOTE Mr. HIGGINS.-But suppose they go beyond their power? Mr. GORDON.-It is still the expression of Parliament. Directly a Ministry seeks to enforce improperly 50 any law the citizen has his right. END QUOTE And; Hansard 10-3-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) 55QUOTE let us set our face once and for ever against the creation of anything like a military despotism. Page 56 of parts 1 & 2 19-7-2013 Re: COMPLAINT -Sheriff-CONTEMPT OF COURT etc 5 INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati
Page 57 END QUOTE
It means that being it the purported court or otherwise cannot validly endorse this kind of conduct because it is contrary to the legislative provisions that exist otherwise and indeed would cause confusion amongst the general population if road rules and other legislative provisions are 5applicable or not. While no doubt the issue of collecting payments from repeat offenders may be an issue nevertheless it never can be sufficient to sanction breached of constitutional embedded legal principles and one is that one must have a judicial determination and after both (not just one party) had been heard. Therefore the former PERIN COURT itself was unconstitutional and so any replacement of it. Moreover the issue of an alleged offender having to pay $7.50 to see a 10photo also is sheer and utter nonsense because the alleged offender has no such constitutional obligation as the prosecutor has the task to prove a defendant to be guilty! As such, the prosecutor must provide, and so well before any hearing is due, for the relevant evidence the prosecutor seeks to rely upon to be served upon the alleged offender. More over, the legislative provisions of replacing an original infringement notice with another 15one with a higher penalty is an outlawed STAR CHAMBER COURT kind of process that has no place within a democracy and certainly cannot be deemed with in Law & Order. There is no such system as to penalise a person for not responding to a infringement notice, at least not within constitutional provisions because no fine can be permitted before conviction. Members of Parliament are representing their electors as agents and not as dictators! It must 20therefore be clear that the government cannot be placed above the RULE OF LAW and must therefore be in the same capacity as any other citizen. It means that if an ordinary citizen seeks a debt payable from the government and cannot wheel clamp the vehicles of the Government then neither can the Government do so! If the ordinary citizen having a dispute with the government must provide for the government to respond in the courts to defend itself then the government 25neither then can create some hideous dictatorship system that motorist and often also innocent motorist can be denied the same opportunity to defend themselves. In my view, any increase of penalty because of non response is unconstitutional because to allow otherwise is that we no longer have an impartial judiciary but the government and so its Department have set themselves up as a De Facto court system.
30
WUCHTER v. PIZZUTTI, 276 U.S. 13 (1928) 276 U.S. 13 QUOTE
35
.
A final judgment was entered. Wuchter then appealed to the Supreme Court, contending that the act under which the process was served upon him was unconstitutional, because it deprived him of his property without due process of law, in contravention of section 1 of the Fourteenth Amendment to the Federal Constitution.
END QUOTE
WUCHTER v. PIZZUTTI, 276 U.S. 13 (1928) 276 U.S. 13 40QUOTE In McDonald v. Mabee, 243 U.S. 90, 91 , 37 S. Ct. 343, L. R. A. 1917F, 458, a person domiciled in Texas left the state to make his home in another state. An action for money was begun by pub- [276 U.S. 13, 24] lication in a newspaper after his departure, and a judgment recovered and sustained by the state Supreme Court was held void by this court. This court said:
45
50
'The foundation of jurisdiction is physical power, although in civilized times it is not necessary to maintain that power throughout proceedings properly begun, and although submission to the jurisdiction by appearance may take the place of service upon the person. ... No doubt there may be some extension of the means of acquiring jurisdiction beyond service or appearance, but the foundation should be borne in mind. Subject to its conception of sovereignty even the common law required a judgment not to be contrary to natural justice. ... And in states bound together by a Constitution and subject to the Fourteenth Amendment, great caution should be used not to let fiction deny the fair play that can be secured only by a pretty close adhesion to fact.' See, also, Roller v. Holly, 176 U.S. 398 , 20 S. Ct. 410.
Page 58 END QUOTE

.
While this may be an American decision and relating to the US constitution the same can be applied in the Commonwealth of Australia in that an Infringement Notice is not a proper service 5of instituting proceedings in a court of law which is the Magistrates Court of Victoria.
.
Infringements Act 2006 Act No. 12/2006 QUOTE 3. Definitions 10 (1) In this Act END QUOTE And QUOTE "Court" means Magistrates' Court; 15END QUOTE
An Infringement Notice can in itself not be deemed to constitute a notice as to proceedings commenced in a magistrates Court because it may never result to any litigation in a magistrates Court. Therefore unless and until a person has been served with a formal notice of proceedings having been instituted in a magistrates Court no action can be taken against any citizen (Motorist 20or otherwise) and hence it is not relevant if legislation purports another system of enforcement because it would be contrary to the legal principles embedded in the constitution of having a impartial judiciary making a judicial determination after hearing both parties. Therefore the issue of a second Infringement Notice on me I view constitute extortion and terrorism also because it goes with a warning also that my vehicle could be wheel-clamped and my licence be suspended 25and my vehicle deregistered, etc. This is not what safety procedures permit for motorist and so a government department or private contractors acting for it neither can then do so. In my view any whee clamping without a proper impartial judicial determination after hearing both parties would not only be unconstitutional but a gross denial of CIVIL RIGHTS.
HANSARD 17-3-1898 Constitution Convention Debates 30QUOTE Mr. BARTON.- We have simply said that the guarantee of the liberalism of this Constitution is responsible government, and that we decline to impair or to infect in any way that guarantee. END QUOTE And 35HANSARD 17-3-1898 Constitution Convention Debates QUOTE Mr. BARTON.- Of course it will be argued that this Constitution will have been made by the Parliament of the United Kingdom. That will be true in one sense, but not true in effect, because the provisions of this Constitution, the principles which it embodies, and the details of enactment by which 40 those principles are enforced, will all have been the work of Australians. END QUOTE And HANSARD 17-3-1898 Constitution Convention Debates QUOTE 45 Mr. BARTON.- Having provided in that way for a free Constitution, we have provided for an Executive which is charged with the duty of maintaining the provisions of that Constitution; and, therefore, it can only act as the agents of the people. END QUOTE
50I can understand the utter frustration a government may be in having repeat offenders not paying fines, that is court imposed fines after a judicial hearing of hearing both parties, but that is a issue that never should justify then unconstitutional conduct by a government because the moment we permit this then every Government will use any excuse to violate constitutional rights and guarantees for whatever they may desire to do so.
55.
HANSARD 8-2-1898 Constitution Convention Debates QUOTE Page 58 of parts 1 & 2 19-7-2013 Re: COMPLAINT -Sheriff-CONTEMPT OF COURT etc INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati
Page 59 Mr. HIGGINS.-I did not say that it took place under this clause, and the honorable member is quite right in saying that it took place under the next clause; but I am trying to point out that laws would be valid if they had one motive, while they would be invalid if they had another motive. END QUOTE
5.
HANSARD 17-2-1898 Constitution Convention Debates QUOTE Mr. OCONNOR.We must remember that in any legislation of the Commonwealth we are dealing with the Constitution. Our own Parliaments do as they think fit almost within any limits. In this case the Constitution will be above 10 Parliament, and Parliament will have to conform to it. END QUOTE
.
HANSARD 1-3-1898 Constitution Convention Debates QUOTE 15 Mr. GORDON.- The court may say-"It is a good law, but as it technically infringes on the Constitution we will have to wipe it out." END QUOTE And HANSARD 1-3-1898 Constitution Convention Debates 20QUOTE Mr. BARTON.- The position with regard to this Constitution is that it has no legislative power, except that which is actually given to it in express terms or which is necessary or incidental to a power given. END QUOTE
.
25HANSARD 9-2-1898 Constitution Convention Debates

QUOTE Mr. HIGGINS.-No, because the Constitution is not passed by the Parliament. END QUOTE
.
30Hansard 9-9-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. SYMON: It cannot possibly extend the operation of our laws generally one atom further than the constitutional law will permit. 35END QUOTE
.
HANSARD 10-03-1891 Constitution Convention Debates QUOTE Dr. COCKBURN: All our experience hitherto has been under the condition of parliamentary 40 sovereignty. Parliament has been the supreme body. But when we embark on federation we throw parliamentary sovereignty overboard. Parliament is no longer supreme. Our parliaments at present are not only legislative, but constituent bodies. They have not only the power of legislation, but the power of amending their constitutions. That must disappear at once on the abolition of parliamentary sovereignty. No parliament under a federation can be a constituent body; it will cease to have the 45 power of changing its constitution at its own will. Again, instead of parliament being supreme, the parliaments of a federation are coordinate bodies-the main power is split up, instead of being vested in one body. More than all that, there is this difference: When parliamentary sovereignty is dispensed with, instead of there being a high court of parliament, you bring into existence a powerful judiciary which towers above all powers, legislative and executive, and which is the sole arbiter and interpreter 50 of the constitution. END QUOTE
.
Again
HANSARD 10-03-1891 Constitution Convention Debates 55QUOTE Dr. COCKBURN: No parliament under a federation can be a constituent body; it will cease to have the power of changing its constitution at its own will. END QUOTE
.
60Which means if the Parliament can not only not amend its own constitution but can only propose an amendment to the constitution by State referendum then it neither can interfere or overrule
5
Page 60
legal principles embedded in the constitution. It means the Victorian constitution Act 1975 is no constitutional at all and any purported legislation that relies upon it also so to say is down the gutter. And this constitutional issue was also litigated before the County Court of Victoria and I may say unchallenged and the court upheld my cases against the Crown. Meaning that before any 5police office or other person gets it in his head to try to take me on in court they better consider that they have to overcome the constitutional issues that I already succeeded upon. Failing this they have not a hope in the world to succeed against me because unless and until, not that I concede they can, the constitutional issues previously upheld can be defeated any attempt to litigate against me will be fruitless and a sheer waste of taxpayers monies.
10.
Governments and Government Department should realise that instead of ignoring me they did better to consult me as a CONSTITUTIONALIST how to avoid conflict with the constitution and so the legal principles embedded in it. Perhaps we might then also get a better brand of lawyers who will actually know what they are talking about that is constitutionally applicable 15and not so to say go of the deep end murmuring nonsense in court.
.
Sorell v Smith (1925) Lord Dunedin in the House of Lords

QUOTE In an action against a set person in combination, a conspiracy to injure, followed by actual injury, will give good 20 cause for action, and motive or instant where the act itself is not illegal is of the essence of the conspiracy. END QUOTE
Well that applies to anyone who, may seek to take me on and directly or indirectly inflict harm upon me because let it be said that I have no fear to answer any court if it is appropriately constituted and if it is operating within the RULE OF LAW (including the constitution) but will 25not tolerate anyone to disregard the benefits I have obtained from the Courts past decisions and seek to undermine or otherwise prevent me to enjoy those benefits. Last but certainly not least is the issue of the Commonwealth Constitution Act 1900 (UK) which provides: 30
QUOTE
(xv) weights and measures;

END QUOTE
What this means is that since the Commonwealth commenced to legislate in this subject then the States no longer could do so and as such any speed detection devise that was to be used by the states must be in compliance with Commonwealth provisions and can only be used if so 35authorised by the Commonwealth.
.
Hansard 22-9-1897 Constitution Convention Debates QUOTE The Hon. R.E. O'CONNOR (New South Wales)[3.18]: The moment the commonwealth exercises the 40 power, the states must retire from that field of legislation. END QUOTE
.
Hansard 30-3-1897 Constitution Convention Debates QUOTE Mr. REID: 45 We must make it clear that the moment the Federal Parliament legislates on one of those points enumerated in clause 52, that instant the whole State law on the subject is dead . There cannot be two laws, one Federal and one State, on the same subject. But that I merely mention as almost a verbal criticism, because there is no doubt, whatever that the intention of the framers was not to propose any complication of the kind. 50END QUOTE
.
Hansard 30-3-1897 Constitution Convention Debates QUOTE The Hon. R.E. O'CONNOR (New South Wales)[3.18]: We ought to be careful not to load the 55 commonwealth with any more duties than are absolutely necessary. Although it is quite true that this power is permissive, you will always find that if once power is given to the commonwealth to legislate on a particular question, there will be continual pressure brought to bear on the commonwealth to
5
Page 61 exercise that power. The moment the commonwealth exercises the power, the states must retire from that field of legislation. END QUOTE
.
5Hansard 2-3-1898 Constitution Convention Debates QUOTE Mr. OCONNOR.-Directly it is exercised it becomes an exclusive power , and there is no doubt that it will be exercised. END QUOTE
10.
The Infringement Notices constitute a commencement of a legal process regardless that it has not been as yet instituted in a court of competence and hence what is stated above including the issue of ULTRA VIRES is now applicable. Even a cancellation of the Infringement Notices cannot now overcome the ULTRA VIRES issue because it applies to every person, not just to me, once 15it was a claim I made. Next time so to say think twice before taking on a CONSTITUTIONALIST.

. 20 . Awaiting your response, G. H. Schorel-Hlavka
END QUOTE 30-5-2011 correspondence
25
The following has colour, bold lettering and underlining added, albeit I did not do so throughout the entire judgment.
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2009/49.html?stem=0&synonyms=0&query=taylor %20and%201979%20and%20hca%20and%202009 30QUOTE International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49 International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49 (12 November 2009) Last Updated: 12 November 2009
35
HIGH COURT OF AUSTRALIA FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
40
INTERNATIONAL FINANCE TRUST COMPANY LIMITED & ANOR APPELLANTS AND
45
NEW SOUTH WALES CRIME COMMISSION & ORS RESPONDENTS International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49 12 November 2009 S72/ 2009 ORDER
50
55 5
Page 62 1. Appeal allowed. 2. Vary the orders of the Court of Appeal of the Supreme Court of New South Wales entered 6 November 2008: (a) By adding at the end of order 2, "and proceedings 12212 of 2008 be dismissed and the first respondent pay the costs of those proceedings of the appellants". (b) By adding an order declaring that s 10 of the Criminal Assets Recovery Act 1990 (NSW) is invalid.
10
3. First respondent to pay the costs of the appellants. On appeal from the Supreme Court of New South Wales Representation
15
T E F Hughes QC with G J Jones and G A F Connolly for the appellants (instructed by Atanaskovic Hartnell) I D Temby QC with P F Singleton for the first respondent (instructed by New South Wales Crime Commission) No appearance for the second and third respondents
20
Interveners S J Gageler SC, Solicitor-General of the Commonwealth with K M Richardson intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
25
R J Meadows QC, Solicitor-General for the State of Western Australia with C L Conley intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor for Western Australia) M G Sexton SC, Solicitor-General for the State of New South Wales with J G Renwick intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW)) P M Tate SC, Solicitor-General for the State of Victoria with K L Walker intervening on behalf of the AttorneyGeneral for the State of Victoria (instructed by Victorian Government Solicitor)
30
35
W Sofronoff QC, Solicitor-General of the State of Queensland with G J D del Villar intervening on behalf of the Attorney-General for the State of Queensland (instructed by Crown Law Queensland) M G Hinton QC, Solicitor-General for the State of South Australia with S T O'Flaherty intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for the State of South Australia) Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
40
45
CATCHWORDS International Finance Trust Company Limited v New South Wales Crime Commission
50
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Constitutional law (Cth) Judicial power of Commonwealth Jurisdiction vested in State courts Criminal Assets Recovery Act 1990 (NSW) ("Act") Section 10(2) of Act allows New South Wales Crime Commission ("Commission") to apply to Supreme Court of New South Wales ("Supreme Court") ex parte for restraining order in respect of interests in property Section 10(3) of Act requires Supreme Court to make restraining order in respect of interest of person suspected of engaging in serious crime related activity and in respect of interests in property suspected of being derived from serious crime related activity where affidavit of authorised officer contains reasonable grounds for suspicion Restraining order prevents persons disposing of or dealing with the interest, or attempting to do so Section 25 of Act allows for application to exclude interest in property from restraining order Where restraining orders granted, upon ex parte application by Commission, in respect of various bank accounts, suspected of being derived from serious crime related activity Whether basis for granting restraining order only positively displaced by exclusion application under s 25 of Act, where applicant bears burden of proving, on balance of probabilities, that interest in property not fraudulently or illegally
Page 63 acquired Whether s 10 engages Supreme Court in activity repugnant in a fundamental degree to judicial process.
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Constitutional law (Cth) Judicial power of Commonwealth Jurisdiction vested in State courts Section 22(2)(b) of Act requires Supreme Court, upon application by Commission, to make assets forfeiture order in respect of interests in property if more probable than not that the person whose suspected serious crime related activity formed the basis of restraining order has engaged in the last six years in serious crime related activity involving an offence punishable by imprisonment for five years or more Whether s 22(2)(b) bill of pains and penalties Whether s 22(2)(b) engages Supreme Court in activity repugnant in a fundamental degree to judicial process. Statutes Interpretation Whether plain intendment of Act the establishment of regime distinct from usual incidents of Supreme Court.
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Words and phrases "ancillary orders", "confiscation", "ex parte", "fraudulently acquired property", "illegally acquired property", "reasonably plain intendment", "serious crime related activity". Criminal Assets Recovery Act 1990 (NSW), ss 10, 12(1), 22, 25.
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FRENCH CJ. Introduction
1. The Criminal Assets Recovery Act 1990 (NSW) ("the CAR Act") empowers the New South Wales Crime
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Commission[1] ("the Commission") to apply to the Supreme Court of New South Wales for a restraining order in respect of some or all of the property of a person suspected of having committed a serious offence [2]. The provisions relating to restraining orders are in aid of the Commission's power to apply to the Court for forfeiture of the relevant property[3]. 2. The Commission may apply to the Court for a restraining order without notice to the person affected. If the application is supported by an affidavit stating that the person affected is suspected of having engaged in "serious crime related activities", and setting out the grounds for that suspicion, and if the Court considers, having regard to the affidavit, that there are reasonable grounds for the suspicion, then the Court must make the order sought. 3. The validity of the provisions of the CAR Act providing for restraining orders and assets forfeiture orders is challenged in this appeal from the Court of Appeal of the Supreme Court of New South Wales [4]. The basis of the challenge is that the CAR Act imposes upon the Supreme Court functions which so distort its institutional integrity as to be inconsistent with its status as a repository of federal jurisdiction, conferred pursuant to Ch III of the Commonwealth Constitution. The challenge relies upon the decision of this Court in Kable v Director of Public Prosecutions (NSW)[5]. 4. On its proper construction, s 10 of the CAR Act requires the Supreme Court to hear and determine, without notice to the persons affected, applications for restraining orders made ex parte by the Commission. For that reason the section impermissibly directs the Court as to the manner of the exercise of its jurisdiction and restricts the application of procedural fairness in the judicial process and conditions its full application upon a discretion exercised by the Executive branch of the government of New South Wales. It is not to the point that the restriction is temporary, nor that the scope of the order may subsequently be varied by an exclusion order, which can only be made if the party affected shows, on the balance of probabilities, that the affected property was not illegally acquired. In my opinion the section is invalid. Statutory framework
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5. The CAR Act sets out a statement of its principal objects, which include providing for the confiscation,
without requiring a conviction, of a person's property if the Supreme Court finds it to be more probable than not that the person has engaged in serious crime related activities[6]. They also include the objective of enabling law enforcement authorities "effectively to identify and recover property."[7] It is that object which is served, inter alia, by the provisions of the CAR Act which confer power on the Supreme Court to make restraining orders and ancillary orders requiring examination on oath of persons concerning the affairs of the owner of an interest in property subject to a restraining order[8]. 6. Proceedings on an application for a restraining order or a confiscation order are not criminal proceedings[9]. The rules of construction applicable only in relation to the criminal law do not apply to the interpretation of the CAR Act[10] (except in relation to an offence against the CAR Act). The rules of evidence
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Page 64 applicable in civil proceedings apply, and those applicable only in criminal proceedings do not apply, to proceedings under the CAR Act[11]. 7. Applications for restraining orders may be made under Pt 2 of the CAR Act. Section 10 provides, inter alia: "(1) A restraining order is an order that no person is to dispose of or attempt to dispose of, or to otherwise deal with or attempt to otherwise deal with, an interest in property to which the order applies except in such manner or in such circumstances (if any) as are specified in the order. (2) The Commission may apply to the Supreme Court, ex parte, for a restraining order in respect of: (a) specified interests, a specified class of interests or all the interests, in property of a person suspected of having engaged in a serious crime related activity or serious crime related activities, including interests acquired after the making of the order and before the making of an assets forfeiture order affecting the interests that are subject to the restraining order, or (b) specified interests, or a specified class of interests, in property that are interests of any other person, or (c) interests referred to in both paragraph (a) and paragraph (b). ... (3) The Supreme Court must make the order applied for under subsection (2) if the application is supported by an affidavit of an authorised officer stating that: (a) in the case of an application in respect of an interest referred to in subsection (2)(a) the authorised officer suspects that the person has engaged in a serious crime related activity or serious crime related activities and stating the grounds on which that suspicion is based, and (b) in the case of an application in respect of any other interest the authorised officer suspects that the interest is serious crime derived property because of a serious crime related activity or serious crime related activities of a person and stating the grounds on which that suspicion is based, and the Court considers that having regard to the matters contained in any such affidavit there are reasonable grounds for any such suspicion."
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8. The term "serious crime related activity" is defined as "anything done by the person that was at the time a
serious criminal offence, whether or not the person has been charged with the offence" or, if charged, had been tried, tried and acquitted, or convicted (even if the conviction had been quashed or set aside) [12]. The term "serious criminal offence" is defined by reference to a range of specified offences [13] including any offence under a law of the Commonwealth or of a place outside Australia which, if committed in New South Wales, would have been a "serious criminal offence"[14]. 9. The Court may refuse to make a restraining order if the State fails to provide such undertakings as the Court considers appropriate with respect to the payment of damages or costs in relation to the making and operation of the order[15]. 10. A restraining order made under s 10 is subject to a conditional time limit. After the first two working days of its operation, the order remains in force only while an application for an assets forfeiture order or an unsatisfied proceeds assessment order is pending before the Supreme Court, or if there is an unsatisfied proceeds assessment order in force against the person whose suspected serious crime related activities formed the basis of the restraining order[16]. If the Court does not make an assets forfeiture order in respect of the relevant property under s 22, then it may make an order in relation to the period for which the restraining order is to remain in force[17]. 11. If the restraining order is made in respect of an interest in the property of a person, and the person was not notified of the application for the making of the order, notice of its making or variation is to be given by the Commission to the person[18]. 12. The Supreme Court is empowered when it makes a restraining order or at any later time to make ancillary orders[19]. If the Commission or any other person applies for ancillary orders it must give notice of the orders to the person whose property interest is to be affected[20]. 13. Section 22 provides for assets forfeiture orders to be made on application by the Commission. An application for such an order must be made on notice to a person to whom the application relates and that person may appear and adduce evidence at the hearing of the application[21]. The application may be made before or after or at the same time as an application for a restraining order but may not be determined prior to the grant of the restraining order[22]. The Supreme Court is required to make the assets forfeiture order if the condition set out in s 22(2) is satisfied. That condition is that the Court finds it to be more probable than not that the person on whose activities the restraining order was based was, at any time within six years before the application for the assets forfeiture order, engaged in serious crime related activity involving an indictable quantity, or punishable by imprisonment for five years or more. On an assets forfeiture order taking effect in relation to an interest in property, the interest is forfeited to the Crown and vests in the Public Trustee on behalf of the Crown[23]. 14. A person whose interest in property is or may be the subject of an assets forfeiture order may apply to the Supreme Court for an "exclusion order", excluding the interest from the operation of the assets forfeiture order
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Page 65 or any relevant restraining order[24]. Broadly speaking an exclusion order may only be made if the property interest to be excluded is not fraudulently or illegally acquired property [25]. The onus of proof is on the party applying for the order. The applicant must give the Commission notice of the application and notice of the grounds on which the exclusion order is sought[26]. If the Commission proposes to contest the application it must give the applicant notice of the grounds on which the application is to be contested[27]. Factual and procedural history
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15. On 13 May 2008, the Commission commenced proceedings by summons filed in the Common Law Division of the Supreme Court of New South Wales against a defendant designated as the "beneficial owners of various bank and share trading accounts". 16. By the summons, the Commission sought final relief in the form of an assets forfeiture order pursuant to s 22 of the CAR Act. The Commission also applied by the summons for a restraining order under s 10, and ancillary orders under s 12 of the CAR Act. The ancillary orders sought would require the Public Trustee to hold money and shares from the accounts specified in three schedules to the summons. 17. The application for a restraining order was supported by the affidavit of an authorised person. It was heard ex parte by Hoeben J on 13 May 2008 and a restraining order was made on that day in the terms sought by the Commission along with the ancillary orders sought under s 12. There was no transcript of the proceedings before Hoeben J and no reasons delivered for making the orders. 18. An amended summons adding a further account was filed on 16 May 2008. A restraining order and ancillary orders were made ex parte on the same day in respect of the interests of the beneficial owners of that account. The owners were joined as second defendant. Further ancillary orders were made on 16 May 2008 requiring the Public Trustee to open domestic and international share trading accounts with Commonwealth Securities Ltd and for shares in the specified accounts with Commonwealth Securities Ltd to be transferred to those accounts. On 13 June 2008, International Finance Trust Company Limited ("IFTC") was joined as third defendant in the proceedings and IFTC Broking Services Limited as fourth defendant. 19. On 6 June 2008, IFTC and IFTC Broking Services filed a notice of intention to appeal against the orders made by Hoeben J on 13 May 2008. Three sets of restraining orders and extensive ancillary orders were made ex parte by Hislop J on 25 October 2008. A fourth amended summons was then filed on behalf of the Commission on 27 October 2008 seeking, inter alia, orders under s 22 in respect of funds and shares held in accounts set out in some seven schedules. 20. On 6 November 2008, the Court of Appeal made orders allowing the appeal and setting aside the orders made on 13 and (with certain immaterial exceptions) 16 May 2008[28] save for joinder orders. Orders made on 20 and 27 May 2008 were also set aside. The appeal was allowed by majority (Allsop P, with Beazley JA agreeing, McClellan CJ at CL dissenting) on the basis that there was no admissible evidence before the primary judge that could provide the requisite reasonable grounds for the suspicion asserted by the authorised officer in the affidavit in support of the application[29]. However, the Court unanimously rejected a constitutional challenge to the validity of s 10[30]. This had the effect of leaving the proceedings in the Supreme Court on foot. 21. Special leave to appeal against the decision of the Court of Appeal was granted on 13 March 2009 [31]. The appeal to this Court
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22. By their notice of appeal, the appellants contended that the Court of Appeal of New South Wales erred: "(a) in holding that section 10(3) of the Criminal Assets Recovery Act 1990 (NSW) was valid and not repugnant to the exercise by the Supreme Court of New South Wales of the judicial power of the Commonwealth under Chapter III of the Constitution of the Commonwealth of Australia; and (b) in not dismissing the amended summons filed by the First Respondent in proceeding S12212 of 2008 of the Supreme Court of New South Wales on the ground of the constitutional invalidity of section 10(3) of the Criminal Assets Recovery Act 1990 (NSW)." The decision of the Court of Appeal
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23. It is sufficient for present purposes to refer to the reasons of the Court of Appeal on the challenge to the validity of s 10. Those reasons were given by McClellan CJ at CL. Allsop P agreed, as did Beazley JA. In upholding the validity of s 10, McClellan CJ at CL made the following points: . It is common for a court to entertain an ex parte application when a matter is urgent, in particular when there is a need to protect assets in circumstances where alerting the defendant may cause the assets to be dissipated [32].
Page 66 . It is essential, given the nature of the Commission's functions, that it be permitted to make such an application[33].
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. Section 10 is the point at which the court process which may lead to the ultimate confiscation of property is initiated[34]. . Restraining orders under s 10 are an incident of a comprehensive scheme, the principal object of which is to confer jurisdiction on the Supreme Court to make assets forfeiture orders [35].
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. Under s 10 the Court is required to ensure that the relevant officer holds the necessary suspicion and that there are reasonable grounds for that suspicion. Whether there is admissible evidence to support confiscation of restrained property is a matter determined after an inter partes hearing [36]. . The Court is not bound to "rubber stamp" the affidavit supporting an application under s 10. Section 10(3) raises a justiciable issue and the Court thus has a "determinative role in the process of evaluating the application for the making of the order"[37]. . When the nature and purpose of the legislation are considered, the provision in s 10 allowing the Commission to elect an ex parte hearing does not so compromise the institutional integrity of the Supreme Court that s 10 is offensive to the Commonwealth Constitution[38]. His Honour held that under s 10(3) the Supreme Court was not free to proceed to hear and determine the application for a restraining order other than ex parte if the Commission had elected to bring the application ex parte[39].
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24. Allsop P observed additionally that, although it had not been argued in the Court of Appeal, if it were to be concluded that the character of the task conferred upon the Supreme Court by s 10 was administrative and not judicial, the applicability of the Kable doctrine might arise. If it were to be considered that the judge hearing such an application should not, or must not, give reasons, again the applicability of Kable might arise[40]. Civil forfeiture of assets a global phenomenon 25. Forfeiture of assets by reason of criminal conduct has a long history in English law[41]. That history encompasses deodand, common law forfeiture of the property of felons and traitors and statutory forfeiture. Statutory forfeiture has been described by the Supreme Court of the United States as "likely a product of the confluence and merger of the deodand tradition and the belief that the right to own property could be denied the wrongdoer."[42] 26. There are broadly two classes of statutory forfeiture. One depends upon conviction and is generally referred to as "criminal assets forfeiture". The other depends upon unlawful conduct and is designated "civil assets forfeiture"[43]. The first civil assets forfeiture law in Australia was enacted in 1977 when s 229A was introduced into the Customs Act 1901 (Cth). 27. Civil assets forfeiture laws were first enacted in the United States in 1789[44]. They provided for the forfeiture of ships and cargoes used in customs offences, piracy and slave trafficking. A general convictionbased forfeiture scheme was established in 1970 by the Racketeer Influenced and Corrupt Organizations Act ("the RICO Act")[45]. The Money Laundering Control Act 1986[46] became the primary civil assets forfeiture statute[47]. Civil assets forfeiture laws have been enacted in the past few decades in a significant number of countries, including Australia, Canada, the United Kingdom, Ireland and South Africa[48]. 28. Royal Commissions of Inquiry into organised crime and corruption in Australia in the 1970s and 1980s recommended the development of effective mechanisms for depriving criminals of their profits [49]. The Standing Committee of Attorneys-General in 1983 initiated the development of model forfeiture legislation. In the event, the States and Territories enacted criminal assets forfeiture laws[50]. In the late 20th and early 21st centuries civil assets forfeiture statutes of general application were enacted by the Commonwealth and all States and Territories save for Tasmania[51]. 29. The preceding history is mentioned by way of acknowledgment of the widespread acceptance by governments around the world and within Australia of the utility of civil assets forfeiture laws as a means of deterring serious criminal activity which may result in the derivation of large profits and the accumulation of significant assets. The law under consideration in this case is, in many respects, typical of the kind of civil assets forfeiture statutes enacted in other States and Territories of Australia and in other countries. The CAR Act legislative history
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30. The CAR Act began its life as the Drug Trafficking (Civil Proceedings) Act 1990 (NSW) ("the 1990 Act").
It was directed to property of persons who had engaged in a "drug-related activity". This was defined in s 6 of the 1990 Act by reference to the commission of a "serious drug offence", itself a defined term. Section 10 of the 1990 Act provided for a restraining order which differed in content from the current form of order. The original definition of "restraining order" in s 10(1) was: "an order that no interest in property that is an interest to which it applies is to be disposed of, or otherwise dealt with, by the person whose interest it is or by any other person, except in such manner and in such circumstances (if any) as are specified in the order." The terms of sub-ss (2) and (3) have remained relevantly unchanged save for expansion of their application from drug related activities to serious crime related activities.
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31. The Premier of New South Wales, delivering the Second Reading Speech for the Bill for the 1990 Act,
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made it clear that it was influenced by the conclusions of the Moffitt Royal Commission and inspired by the American RICO Act[52]. Little was said of the process for obtaining restraining orders save for an erroneous reference to the Commission as the body effecting the restraint and a reference to the requirement for an undertaking as to damages[53]. 32. The 1990 Act was amended by the Drug Trafficking (Civil Proceedings) Amendment Act 1997 (NSW), which widened its application to serious crime related activity and changed its name to the Criminal Assets Recovery Act 1990 (NSW). Its coverage was extended to include property situated outside the State of New South Wales. The prohibition on dealing with property the subject of a restraining order was extended to include attempts to deal with such property. None of the extrinsic materials made any specific reference to the power of the Commission to make an ex parte application for a restraining order. Restraining orders and assets forfeiture
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33. Interim or interlocutory restraining or asset freezing processes go hand-in-hand with assets forfeiture. They
have their origins deep in the history of this branch of the law. Processes akin to pre-conviction restraint mechanisms were available at common law against indicted persons, although they appear to have involved nominal seizure by a sheriff rather than by court order[54]. Today all civil assets forfeiture statutes in Australia make reference to restraining orders or freezing orders. 34. Ex parte applications can be made in every jurisdiction. The forfeiture statutes of the Commonwealth, Victoria, Queensland and South Australia each make express provision for the application for a restraining order to be made ex parte. They also empower the court to which the application is made to direct that notice of the application be given to the person affected before the application is fully determined[55]. Western Australia's Criminal Property Confiscation Act 2000 provides for "freezing orders" to be made affecting "confiscable property". Applications may be made to the relevant court by the Director of Public Prosecutions and may be made ex parte. There is no express provision for the court to require that notice of such applications be given to any party[56]. 35. Fulfilment of the purposes of civil assets forfeiture laws almost inevitably requires provision to be made for ex parte applications for orders for the protection of targeted assets pending a substantive forfeiture hearing. There will be in some, and perhaps many cases, a real risk that the owner of the assets, if alerted to the making of an application for a protective order, will take steps to conceal or dispose of the subject assets. Such considerations are not novel in the exercise of the wider civil jurisdiction of courts particularly in relation to the grant of Mareva orders and Anton Piller orders. But the relevance of prudential considerations in favour of ex parte applications for a particular class of case does not mean that an ex parte application will be required in every case within the class. The construction of s 10
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36. The construction of s 10 raises the following questions: 1. Is the Supreme Court required to hear, without notice to the affected party, an ex parte application
made by the Commission under s 10? 2. Is the Supreme Court, in any event, required to decide the application only upon the material contained in the affidavit of an authorised officer supporting the application? Senior counsel for the appellants accepted that the proposition that s 10(3) does not allow the Court hearing an ex parte application for a restraining order to do other than hear it ex parte was critical to his argument.
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37. On any view of the section it cannot require the Court to hear ex parte an application for a restraining order
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in circumstances in which the CAR Act requires the Commission to give notice to the affected party. Such a requirement arises where a final assets forfeiture order is sought at the same time as the restraining order [57].
Page 68 Assuming that requirement does not arise, the first constructional question invites a consideration of the words "ex parte" and the text and context of ss 10(2) and 10(3), as well as of the objects of the legislation. 38. In its primary meaning, "ex parte" designates an application in a judicial proceeding made by a person who is not a party to the proceeding but has an interest sufficient to support the application. However, in the usage 5 relevant to this appeal, "ex parte" refers to something done in judicial proceedings without notice to the party affected. That may be an application, or a hearing, or the making of an order. A party may file an application or motion against another party without giving notice that it has done so. The court may hear the application ex parte and may make an order without prior notice to the affected party. In New South Wales, r 25.11 of the Uniform Civil Procedure Rules 2005 (NSW) provides that the Supreme Court "may make [a 10 freezing] order ... upon or without notice to a respondent ...". 39. Ex parte procedures of the kind contemplated by r 25.11 of the UCPR are not unusual but should always be regarded as exceptional. They involve a departure, albeit temporary, from the general requirement of procedural fairness that no order adverse to a party's property, liberty, or any other interest should be made without that party first having an opportunity to be heard. That opportunity 15 includes the right to test and/or rebut evidence relied upon by the moving party and to make submissions on matters of fact and law. Ex parte interlocutory injunctive relief may be sought where the urgency of the matter is such that there is no time to notify the respondent. Anton Piller orders and Mareva or assets preservation orders are often sought ex parte on the basis that notice to the affected party is likely to result in the destruction of evidence or the concealment or dissipation of assets which it is intended the proposed order will 20 protect[58]. Nevertheless, courts have long had the power to require that notice of an application made ex parte be given to the party affected. The court may not accept that the matter is as urgent as claimed or that the subject matter of the application would be compromised if the affected party were to be alerted to it. Or it may be that the court does not find the affidavit in support of the motion "sufficiently positive"[59]. 40. The appellants and the Commission were on common ground in submitting that if the Commission chooses 25 to bring an ex parte application under s 10, the Court is required to hear and determine it ex parte. The Commission submitted that the contrary construction should be rejected unless such a construction is needed to render the provision constitutional, a need which it contended does not arise. The Solicitor-General of the Commonwealth supported the construction of s 10 advanced by the appellants and the Commission. The State of New South Wales, on the other hand, contended that on its proper construction s 10 would allow the Court to 30 require the party affected to be given notice before hearing an application made ex parte. 41. The process of statutory construction, including the identification of constructional choices, is informed by text, context and legislative purpose and, when applicable, the conservative principle that, absent clear words, Parliament does not intend to encroach upon fundamental common law principles, including the requirement that courts accord procedural fairness to those who are to be affected by their 35 orders. Further, where there is a constructional choice that would place the statute within the limits of constitutional power and another that would place it outside those limits, the former is to be preferred[60]. 42. There is a caveat which should be entered in relation to these principles. The court should not strain to give a meaning to statutes which is artificial or departs markedly from their ordinary meaning simply in order to 40 preserve their constitutional validity. There are two reasons for this. The first is that if Parliament has used clear words to encroach upon the liberty or rights of the subject or to impose procedural or other constraints upon the courts its choice should be respected even if the consequence is constitutional invalidity. The second reason is that those who are required to apply or administer the law, those who are to be bound by it and those who advise upon it are generally entitled to rely upon the ordinary sense of the words that Parliament has chosen[61]. To the 45 extent that a statutory provision has to be read subject to a counterintuitive judicial gloss, the accessibility of the law to the public and the accountability of Parliament to the electorate are diminished. Moreover, there is a real risk that, notwithstanding a judicial gloss which renders less draconian or saves from invalidity a provision of a statute, the provision will be administered according to its ordinary, apparent and draconian meaning. In the context of the present case, that risk is enhanced where the provision, on the face of it, appears to require the 50 Supreme Court to hear only from the moving party where that party chooses to make an ex parte application. 43. Section 10 does not make any express provision for the Commission to apply to the Court on notice. Yet it and other provisions of the CAR Act are drafted on the premise that an application may be made on notice. Section 10 provides that a restraining order may make provision, out of the property to which the order applies, for reasonable legal expenses "incurred in connection with the application for the restraining order" [62]. 55 Notice of the restraining order itself is to be given to the person affected if "the person was not notified of the application for the making of the restraining order"[63]. Moreover, an ancillary order may be made when the Court makes a restraining order and can be made on the application of the owner of the affected property [64]. Consideration of these provisions leads to the conclusion that the Commission may elect not to exercise its right to make its application ex parte. There is some limited textual support for that conclusion in the sense that the 60 express authority conferred by the statute on the Commission to apply ex parte can be said to subsume the lesser authority to apply on notice. Page 68 of parts 1 & 2 19-7-2013 Re: COMPLAINT -Sheriff-CONTEMPT OF COURT etc 5 INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati
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44. It does not follow from the preceding discussion that s 10 authorises the Court to require that the
Commission give notice of the application to the affected party. The Court must make the order applied for on the Commission's application when the conditions set out in s 10(3) of the CAR Act are satisfied. There is no textual space in the section within which the Court may interpose a further condition requiring that notice first be given to the affected party. Nor is this a case in which, on the interpretative principles to which I have referred earlier, the Court should read such a power into the section by some form of implication unsupported by its text. Moreover, the general provisions of the UCPR relating to freezing orders are not apt to be grafted on to the legislative scheme of the CAR Act so far as it relates to restraining orders. The CAR Act contains its own procedural provisions. As Gummow and Bell JJ point out in their joint judgment [65] and Heydon J shows in detail[66], the CAR Act establishes a "distinct regime" excluding the general powers of the Supreme Court which might otherwise have applied. 45. The question whether notice is to be given of an application for a restraining order is therefore at the Commission's discretion. It is left to the Commission to judge whether there is such a risk of concealment or dissipation of the assets the subject of the order that notice of the application should not be given to the person affected by it. The Court's discretion as to the conduct of its own proceedings in the key area of procedural fairness is supplanted by the Commission's judgment. It is a consequence of the preceding construction that if the Commission elects to apply ex parte there is no opportunity for the affected party upon the hearing of the application to test the authorised person's affidavit or to put before the Court evidence to rebut it. Upon an ex parte application, the Court is confined to a consideration of the sufficiency of the affidavit of the authorised officer. 46. Section 10(3) conditions the Court's obligation to make the order sought upon the Court considering that, having regard to the matters contained in the affidavit, there are reasonable grounds for the suspicion which is asserted by the authorised officer. Although the Court can refuse the order on the basis that it considers that the authorised officer does not have the requisite suspicion, if the application is heard ex parte there will be no-one before the Court to question the existence of that suspicion. In most cases it will be sufficient, as a practical matter, that the suspicion is asserted and that there are reasonable grounds for it disclosed on the affidavit. 47. If the application were made on notice, the affected party would be able to cross-examine the authorised officer on his or her affidavit with a view to demonstrating that he or she does not hold the requisite suspicion, or that there are parts of the affidavit which are so inherently unreliable as not to form reasonable grounds for that suspicion. Evidence in rebuttal could be directed to the same propositions. The party, if given notice, could also make submissions to the Court about the existence of the conditions upon the Court's powers under s 10. Such a process would be an unobjectionable exercise of the judicial function. It would not involve any intrusion by the legislature upon that function nor any usurpation of it by the Executive. The issue of validity arises with respect to s 10 because it authorises ex parte applications to the Court, which must be heard and determined ex parte by the Court. 48. It was submitted that the person affected by a restraining order can apply to set it aside. The statute itself makes no such provision. Assuming, however, that such an application can be made, it is difficult to see any ground upon which the order could be set aside save for the following: (i) want of the relevant suspicion on the part of the authorised officer; (ii) want of reasonable grounds for the asserted suspicion. In the absence of any discretion in the Court to refuse a restraining order when the conditions for making the order are satisfied, non-disclosure of a material fact by the authorised officer will be significant only if the fact is material to the criteria for the making of the order. The availability of a mechanism by which a party affected by a restraining order can apply to discharge it is not germane to the issue of validity. The question whether there has been an impermissible invasion of the judicial function of the Court is not to be resolved simply by engaging in a calculus of fairness and assessing whether prejudice to a party, flowing from denial to it of a hearing prior to a restraining order being made, can be remedied at some later time. In any event, in this case, as explained in the joint judgment of Gummow and Bell JJ[67], a restraining order can only be displaced, pending the determination of an assets forfeiture order, by an application under s 25, which places upon the party affected by the restraining order the onus of demonstrating that the property the subject of the application is not illegally acquired property as defined in the CAR Act. The validity of s 10 49. The separation of legislative, executive and judicial powers reflected in the structure of Chs I, II and III of the Constitution does not prevent the Commonwealth Parliament from passing a law which has the effect of requiring a court exercising federal jurisdiction to make specified orders if certain conditions are met. If the satisfaction of a condition enlivening the court's statutory duty depends upon a decision made by a member of
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Page 70 the Executive branch of government, it does not necessarily follow that the Parliament has thereby authorised the Executive to infringe impermissibly upon the judicial power[68]. 50. On the other hand, Parliament cannot direct courts exercising federal jurisdiction as to the manner and outcome of the exercise of that jurisdiction. As was pointed out in Chu Kheng Lim v Minister for Immigration[69], that would constitute an impermissible intrusion into the judicial power which Ch III vests exclusively in the courts which it designates[70]. In Nicholas v The Queen[71], Brennan CJ observed that the acceptance of instructions from the legislature to exercise judicial power in a particular way was inconsistent with the duty to act impartially. Gaudron J said that the essential character of a court and the nature of judicial power necessitate that a court not be required or authorised to proceed in a manner that does not ensure, inter alia, the right of a party to meet the case made against him or her[72]. Gummow J put it thus[73]: "The legislative powers of the Commonwealth do not extend to the making of a law which authorises or requires a court exercising the judicial power to do so in a manner which is inconsistent with its nature. " As his Honour said, quoting from a judgment of Windeyer J[74], the concept of judicial power and that of impermissible intrusions upon the manner and outcome of its exercise "transcends 'purely abstract conceptual analysis' and 'inevitably attracts consideration of predominant characteristics', together with 'comparison with the historic functions and processes of courts of law'."[75] His Honour again touched upon the question in APLA Ltd v Legal Services Commissioner (NSW)[76] when he accepted that: "a law may not validly require or authorise the courts in which the judicial power of the Commonwealth is vested to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power." Whether that proposition could be subsumed in a concept of "due process" was left open.
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51. In Bodruddaza v Minister for Immigration and Multicultural Affairs[77], this Court noted that the
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Minister did not dispute that if s 486A of the Migration Act 1958 (Cth), which was then under challenge, "had the character of a law which purported to direct the manner in which the judicial power of the Commonwealth should be exercised, it would be invalid."[78] The Court referred to the judgment in Chu Kheng Lim as demonstrating the point[79]. 52. In their joint judgment in Thomas v Mowbray[80], Gummow and Crennan JJ observed that the decisions of this Court had not gone so far as to imply something like a "due process" requirement from the text and structure of Ch III. I would add that the term "due process", imported from another constitutional setting, should be treated with some caution in relation to Ch III. Whether a more general implication may emerge from Ch III than has hitherto been made, and how it should be designated, is a matter for another day. It is sufficient, for the present, to accept as a proposition that which Gummow and Crennan JJ accepted, albeit as a working hypothesis, when they said in Thomas[81]: "it may be accepted for present purposes that legislation which requires a court exercising federal jurisdiction to depart to a significant degree from the methods and standards which have characterised judicial activities in the past may be repugnant to Ch III." The plaintiff in that case argued that provisions of Div 104 of the Criminal Code (Cth) providing for the issue of interim control orders were invalid. One of the grounds of the asserted invalidity was that "Div 104 provides for the routine making of interim control orders depriving a person of liberty on an ex parte basis and without notice."[82] Gummow and Crennan JJ rejected that contention on the basis that[83]: "ex parte applications are no novelty, and the scheme of the legislation ... is to provide in the very short term for a contested confirmation hearing if the person in question wishes to proceed in that way. "
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The question whether Div 104 required a court to proceed ex parte upon receipt of a request for the issue of an interim control order was not agitated.
53. Chu Kheng Lim, Nicholas and Thomas were concerned with courts exercising federal jurisdiction and the
question whether duties or functions were imposed upon them which were inconsistent with their independence from the legislative and executive branches of government. Although it is right to say, as was recognised in Kable, that the Constitution provides for an integrated national court system, that does not mean that State courts or their judges and officers are to be assimilated with federal courts and their judges and officers [84]. On the other hand, as McHugh J explained in Kable[85]: 60 "in some situations the effect of Ch III of the Constitution may lead to the same result as if the State had an enforceable doctrine of separation of powers. This is because it is a necessary implication of the Page 70 of parts 1 & 2 19-7-2013 Re: COMPLAINT -Sheriff-CONTEMPT OF COURT etc 5 INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati
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Page 71 Constitution's plan of an Australian judicial system with State courts invested with federal jurisdiction that no government can act in a way that might undermine public confidence in the impartial administration of the judicial functions of State courts. "
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54. Procedural fairness or natural justice lies at the heart of the judicial function. In the federal constitutional context, it is an incident of the judicial power exercised pursuant to Ch III of the Constitution. It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it. According to the circumstances, the content of the requirements of procedural fairness may vary. When an ex parte application for interlocutory relief is made the court, in the ordinary course, has a discretion whether or not to hear the application without notice to the party to be affected. In exercising that discretion it will have regard to the legitimate interests of the moving party which have to be protected, whether there is likely to be irrevocable damage to the interests of the affected party if the order is made, and what provision can be made for the affected party to be heard to have the order discharged or varied after it has been made. In so saying, it is not intended to suggest that an official cannot validly be authorised by statute to bring an application ex parte to a federal court or to a State or Territory court capable of exercising federal jurisdiction. The CAR Act takes the further step of requiring the Supreme Court to hear and determine such an application ex parte. 55. To require a court, as s 10 does, not only to receive an ex parte application, but also to hear and determine it ex parte, if the Executive so desires, is to direct the court as to the manner in which it exercises its jurisdiction and in so doing to deprive the court of an important characteristic of judicial power. That is the power to ensure, so far as practicable, fairness between the parties. The possibility that a statutorily mandated departure from procedural fairness in the exercise of judicial power may be incompatible with its exercise was considered in Leeth v The Commonwealth[86]. Mason CJ, Dawson and McHugh JJ said[87]: "It may well be that any attempt on the part of the legislature to cause a court to act in a manner contrary to natural justice would impose a non-judicial requirement inconsistent with the exercise of judicial power, but the rules of natural justice are essentially functional or procedural and, as the Privy Council observed in the Boilermakers' Case, a fundamental principle which lies behind the concept of natural justice is not remote from the principle which inspires the theory of separation of powers." (footnote omitted) 56. In my opinion the power conferred on the Commission to choose, in effect, whether to require the Supreme Court of New South Wales to hear and determine an application for a restraining order without notice to the party affected is incompatible with the judicial function of that Court. It deprives the Court of the power to determine whether procedural fairness, judged by reference to practical considerations of the kind usually relevant to applications for interlocutory freezing orders, requires that notice be given to the party affected before an order is made. It deprives the Court of an essential incident of the judicial function. In that way, directing the Court as to the manner of the exercise of its jurisdiction, it distorts the institutional integrity of the Court and affects its capacity as a repository of federal jurisdiction. 57. The preceding conclusion involves a judgment about the quality of the Executive's intrusion, sanctioned by the legislature, into the judicial function. It is not to the point to say that in many, if not most cases of such applications, the Supreme Court would be likely, if it had the discretion, to hear and determine them ex parte. It is likely that, before deciding to proceed ex parte, the Court would first determine that procedural fairness could be accorded by provision for discharge on application. Alternatively, it might make the order limited in time so that the applicant would have to justify its continuation. Nor is it to the point to say that the particular intrusion upon the judicial function authorised by s 10 is confined in scope and limited in effect both in time and by the facility to seek ancillary or exclusion orders. Such a calculus will not accord sufficient significance to the quality of the intrusion upon the judicial function. An accumulation of such intrusions, each "minor" in practical terms, could amount over time to death of the judicial function by a thousand cuts . 58. Even if, contrary to my primary conclusion, a facility for the party affected to seek discharge or variation of the restraining order within a short time would have been sufficient to save s 10 from invalidity, s 25, for the reasons explained by Gummow and Bell JJ, is not such a facility. 59. In my opinion, s 10 is invalid. Although the authority it confers on the Commission to make ex parte applications subsumes the authority to make applications on notice, assumed in other provisions of the CAR Act, it cannot sensibly be read down to limit its operation to applications on notice. That operation is inextricably linked to the express authority which it confers and which, for the reasons outlined, thus spells invalidity. Such a reading down would impose a judicial gloss on the section at odds with its text. 60. I agree with and respectfully adopt the observations in the joint judgment of Gummow and Bell JJ concerning the effect of the provisions of s 25 relating to exclusion orders and of the provisions of s 12 relating to ancillary orders[88]. I agree also with their Honours' rejection of the proposition that s 22 is a bill of pains
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Page 72 and penalties and their observation that it does not operate independently of a judicial determination of liability[89]. I agree with their conclusion that the significance of s 22 lies in its interaction with s 10 and not otherwise[90]. Conclusion
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61. In my opinion the appeal should be allowed, the appellants' costs to be paid by the first respondent. There
should be an order declaring that s 10 of the CAR Act is invalid. The proceedings in the Supreme Court of New South Wales should be dismissed, with costs as proposed by Gummow and Bell JJ. 62. GUMMOW AND BELL JJ. The appellants are companies incorporated in Vanuatu. The first appellant ("IFTC") is a Vanuatu government licensed trust company. The second appellant ("IFTCB") conducts share trading accounts. The appellants are entitled to exercise effective control over various accounts with ANZ National Bank Limited, Bank of New Zealand, Commonwealth Bank of Australia and Commonwealth Securities Limited which are the subject of the orders of the Supreme Court of New South Wales giving rise to this appeal. 63. The untested case presented to the Supreme Court by the first respondent ("the Commission") was that IFTC is owned and managed by a firm of accountants, PKF Vanuatu, the senior partner of which is Mr Robert Francis Agius. He is an Australian citizen, who stays regularly in Sydney, but resides in Vanuatu. The Commission suspects that Mr Agius has engaged in offences punishable by imprisonment for five years or more and involving fraud, contrary to ss 176, 176A and 178BA of the Crimes Act 1900 (NSW) ("the Crimes Act"). 64. The appellants appeal from so much of the judgment of the New South Wales Court of Appeal (Allsop P, Beazley JA and McClellan CJ at CL) given on 6 November 2008[91] as upheld the validity of the "restraining order" provision in s 10 of the statute enacted as the Drug Trafficking (Civil Proceedings) Act 1990 (NSW) but since 1997[92] titled the Criminal Assets Recovery Act 1990 (NSW) ("the Act"). In this Court, the AttorneysGeneral of the Commonwealth, New South Wales, Victoria, South Australia, Queensland and Western Australia intervened to support the validity of s 10. There has been no appearance for the second and third respondents. 65. Part 2 of the Act (ss 10-21) is headed "Restraining orders", and Pt 3 (ss 22-32) is headed "Confiscation". Detailed definitions are found in Pt 1 (ss 1-9A). 66. The orders with respect to the accounts of IFTC and IFTCB were made in reliance upon s 10. The Court of Appeal, by majority (Allsop P and Beazley JA; McClellan CJ at CL dissenting), set aside the orders on two grounds. These were that there had been no admissible evidence before the primary judge on which he could conclude that the suspicions held by the Commission were based on reasonable grounds, and that there had been a failure by the primary judge to discharge the obligation to provide reasons. 67. However, the appellants remained exposed to the prospect of further proceedings under s 10 because the Court of Appeal unanimously upheld the validity of that section. Further, s 10 must be read with s 22, which provides for the making by the Supreme Court of an assets forfeiture order on the application of the Commission. The subject matter of such an order would be "all or any of the interests in property that are, or are proposed to be, subject to a restraining order when the assets forfeiture order takes effect" (s 22(1)). The scheme of the Act 68. A restraining order continues in force for at least the first two working days after it is made; it continues thereafter, relevantly, so long as there is pending in the Supreme Court an application for an assets forfeiture order (s 10(9)). If the Supreme Court refuses to make the assets forfeiture order in respect of the interests bound by the restraining order, the Court may make such orders "as it considers appropriate in relation to the operation of the restraining order" (s 20(1)). This would include the making of an order to discharge the restraining order. However, the Act contains no provision limiting the period within which the assets forfeiture order application must be brought on for determination and no sanctions against delay in doing so. 69. Section 25, which it will be necessary to consider in detail later in these reasons, does provide for the making, on application to the Supreme Court, of orders excluding interests in property from the operation of a current restraining order. But the applicant must prove that it is more probable than not that the property was not acquired by serious crime related activity (s 25(2)). 70. The relationship between the restraining order and an application for an assets forfeiture order thus is not analogous to that between an interim injunction granted on an ex parte application, a contested application shortly thereafter for an interlocutory injunction and a suit for final relief. The scheme of the Act is more rigid and places the importance to the Commission in obtaining and retaining a restraining order above remedial flexibility. The construction of s 10
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71. Section 10 has been amended since its enactment in 1990, and there have been expansions in some of the defined terms upon which it depends, but the essential structure of the provision has been retained. Section 10(1) identifies a "restraining order" as: Page 72 of parts 1 & 2 19-7-2013 Re: COMPLAINT -Sheriff-CONTEMPT OF COURT etc 5 INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati
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Page 73 "an order that no person is to dispose of or attempt to dispose of, or to otherwise deal with or attempt to otherwise deal with, an interest in property to which the order applies except in such manner or in such circumstances (if any) as are specified in the order." 72. Section 10(2) states: "The Commission[[93]] may apply to the Supreme Court, ex parte, for a restraining order in respect of: (a) specified interests, a specified class of interests or all the interests, in property of a person suspected of having engaged in a serious crime related activity or serious crime related activities, including interests acquired after the making of the order and before the making of an assets forfeiture order affecting the interests that are subject to the restraining order, or (b) specified interests, or a specified class of interests, in property that are interests of any other person , or (c) interests referred to in both paragraph (a) and paragraph (b)." (emphasis added) The orders against the appellants were based upon par (b) of s 10(2).
73. The expression "serious crime related activity" in s 10(2) has a very wide reach. It extends to anything done
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by a person which at the time was "a serious criminal offence", whether or not the person has been charged or, if charged, has been tried, or tried and acquitted, or convicted, even if the conviction has been quashed or set aside (s 6(1)). The expression "a serious criminal offence" itself is given a comprehensive definition in pars (a)-(j) of s 6(2). It includes, for example, an offence under s 197 of the Crimes Act involving the destruction of or damage to property with a value of more than $500 (par (h)). Sections 176, 176A and 178BA of the Crimes Act, to which reference has been made, appear to fall within par (d) of s 6(2) of the Act[94]. 74. In the course of argument in this Court questions were raised as to whether the expression in s 10(2) "may apply to the Supreme Court, ex parte, ..." necessitated an ex parte application or whether a particular application might be made on notice to those whose property interests would be bound by the order sought by the Commission. Other provisions, in particular s 11(2)(b) and s 25(4)(a), indicate that the Commission may decide to give notice of an application for the making of a restraining order. In this sense, the phrase " may apply" is permissive as to the procedure adopted in making an application. 75. Section 10(2) also serves a distinct purpose of creating a new species of subject matter for adjudication by the Supreme Court, namely applications by the Commission for a "restraining order". Section 10(2) is to be read with s 10(3). Together they have the dual operation of creating that new subject matter for adjudication and of conferring on the Supreme Court the authority to exercise jurisdiction with respect to that subject matter. 76. Section 10(3) states: "The Supreme Court must make the order applied for under subsection (2) if the application is supported by an affidavit of an authorised officer stating that: (a) in the case of an application in respect of an interest referred to in subsection (2)(a) the authorised officer suspects that the person has engaged in a serious crime related activity or serious crime related activities and stating the grounds on which that suspicion is based, and (b) in the case of an application in respect of any other interest the authorised officer suspects that the interest is serious crime derived property because of a serious crime related activity or serious crime related activities of a person and stating the grounds on which that suspicion is based, and the Court considers that having regard to the matters contained in any such affidavit there are reasonable grounds for any such suspicion." 77. Section 10(3) is a provision of a familiar kind. It confers upon the Supreme Court a power with a duty to exercise it if the Supreme Court decides that the conditions attached to the power are satisfied [95]. A law of that description is not to be stigmatised on that ground alone as an attempt to direct the Supreme Court as to the outcome of the exercise of its jurisdiction[96]. However, the outcome is determined by the adequacy of the evidence in the affidavit of the authorised officer of the Commission. It is upon this material that the Supreme Court considers whether there are reasonable grounds for the suspicion expressed by the authorised officer. The result is that even where notice of an application is given there will be limited scope to contest the making of the order sought by the Commission. 78. Relevantly for the construction of s 10, the Act stipulates that proceedings on a restraining order application are not criminal proceedings (s 5(1)) and that the rules of construction applicable only in relation to the criminal law do not operate (s 5(2)). However, two relevant principles of statutory construction are engaged. 79. The first principle is that the legislature, in selecting the Supreme Court as the forum, may be taken, in the absence of contrary express words or of reasonably plain intendment, to take the Supreme Court as the legislature finds it, with all its incidents[97]. Three of those incidents which the Court of Appeal accepted as applicable to the jurisdiction to make restraining orders, and which the Commission did not seek to challenge in this Court, are the application of the rules of evidence respecting the use of affidavit evidence on interlocutory applications, the requirement that the primary judge provide adequate reasons, and the exercise of the appellate jurisdiction of the Court of Appeal with respect to challenges to interlocutory orders. However, as is explained later in these reasons and, in particular, in those of Heydon J, in other significant respects the Act displays a plain intendment to establish a distinct regime.
Page 74 80. That distinct regime invites application of the second principle of construction. This is that a particular provision which explicitly prescribes the mode of exercise of a power may exclude the operation of general provisions which might otherwise have been relied upon for the exercise of the power[98]. Several such particular provisions may be noted. The power to make a restraining order is conferred in broad terms, but nevertheless an order does not apply to an interest acquired after the order is made, in the absence of express provision that it does so apply (s 10(2A)). Further, the Supreme Court may refuse to make a restraining order in the absence of such undertakings by the State as the Court considers appropriate, with respect to payment of damages or costs in relation to the making and operation of the order (s 10(6)); these undertakings may be given by the Commission on behalf of the State (s 10(7)). The principal objects of the Act
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81. In the Second Reading Speech on the Bill for the Act, given on 8 May 1990, the Premier observed that
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there was "no doubt the proposed legislation is tough"[99]. He added[100]: "The most innovative and controversial aspect of this legislation is that it will create a scheme of asset confiscation that will operate outside and completely independent of the criminal law process. All existing confiscation schemes in Australia, with the notable exception of the Commonwealth Customs Act, are conviction-based that is to say, before a person's assets can be confiscated the person must have been convicted in the criminal courts. This legislation, like the Commonwealth Customs Act, treats the question of confiscation as a separate issue from the imposition of a criminal penalty. It essentially provides that a person can be made to account for and explain assets and profits whether or not the person has been convicted, and even if the person has been acquitted in the criminal courts. The critical thing that must be proved is that it is more probable than not that the person engaged in serious drug crime. Proof on the balance of probabilities is the same standard of proof as that used in ordinary civil litigation. The more stringent standard of proof beyond a reasonable doubt is a creature of the criminal law." 82. The use of the term "confiscation" in legislation of this type is imprecise, if not inaccurate. Speaking of the United Kingdom legislation beginning with the Drug Trafficking Offences Act 1986 (UK) and including the Proceeds of Crime Act 2002 (UK), Lord Bingham of Cornhill observed in R v May[101] that what is involved is "not confiscation in the sense in which schoolchildren and others understand it". He continued: "A criminal caught in possession of criminally-acquired assets will, it is true, suffer their seizure by the state. Where, however, a criminal has benefited financially from crime but no longer possesses the specific fruits of his crime, he will be deprived of assets of equivalent value, if he has them. The object is to deprive him, directly or indirectly, of what he has gained. 'Confiscation' is, as Lord Hobhouse of Woodborough observed in In re Norris[102], a misnomer." These remarks apply with added force to application of the Act to the situation, of which the facts of the present case are an example, where there has been no conviction, and to the application of the Act in cases where there has been an acquittal. Again, in NSW Crime Commission v D'Agostino[103], the Act operated upon a motor vehicle and a half share in a residential property owned by a person convicted of a single instance of shoplifting. 83. The issues which are before this Court do not call into question the legislative policy of which the Premier spoke. This policy is now, after the expansion of the statute beyond concern with drug trafficking, expressed in the statement in s 3 of the principal objects of the Act as being: "(a) to provide for the confiscation, without requiring a conviction, of property of a person if the Supreme Court finds it to be more probable than not that the person has engaged in serious crime related activities, and (b) to enable the proceeds of serious crime related activities to be recovered as a debt due to the Crown, and (b1) to provide for the confiscation, without requiring a conviction, of property of a person that is illegally acquired property held in a false name or is not declared in confiscation proceedings, and (c) to enable law enforcement authorities effectively to identify and recover property ." The issue in this Court
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84. What is in issue is the validity of the conscription of the Supreme Court as an essential actor in the
provisions for the making of restraining orders. In the present case Allsop P, after referring to the above remarks of the Premier in 1990, continued[104]: "Balanced against that important public policy is the clear recognition in our legal and political system of the importance of the protection of individual rights, including the right to own and enjoy private 60 property. Thus, the common law requires a degree of clarity in the wording of any statute which abrogates or confiscates property rights. This is rooted in the importance of such rights and their Page 74 of parts 1 & 2 19-7-2013 Re: COMPLAINT -Sheriff-CONTEMPT OF COURT etc 5 INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati
Page 75 legitimate protection in civil society free from the exercise of arbitrary power, in particular prerogative or Executive power." His Honour went on to identify the use of the judicial branch of government as the mechanism chosen by the legislature "to mediate the relationship between the competing, and to a degree conflicting, policies to which I have referred"[105].
85. The Supreme Court, for over a century, has been invested with extensive federal jurisdiction. In the
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instant case, the Court of Appeal had before it a controversy respecting the validity of s 10 of the Act and so was exercising the judicial power of the Commonwealth in a matter arising under or involving the interpretation of the Constitution. In other cases, even where there is no issue of constitutional validity, an application under s 10 nevertheless may attract the exercise of federal jurisdiction[106]. For example, certain offences under the laws of the Commonwealth are classified by par (i) of s 6(2) of the Act as serious criminal offences and may found the suspicion spoken of in s 10(2)(a) of engagement in serious crime related activity. 86. However, the case for invalidity has been conducted on a broader basis, looking to the operation of the legislation where the Supreme Court acts as the highest judicial organ of the State and no exercise of federal jurisdiction is involved. 87. The appellants accordingly contend in accordance with authority in this Court[107] that s 10 is designed to engage the Supreme Court in activity which is repugnant to the judicial process in a fundamental degree and thereby impermissibly trenches upon its appearance as a tribunal which stands apart from the Executive Branch of the government of the State and its instrumentalities such as the Commission, and which is equipped to administer in disputes justice inter partes, with results openly arrived at by the Court. Consideration
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88. A starting point for consideration of the particular case presented by the appellants is provided by the
following passage in the reasons of Crennan J in Gypsy Jokers Motorcycle Club Inc v Commissioner of Police[108]: "In Kable [v Director of Public Prosecutions (NSW)], Gaudron J spoke of the power of indefinite detention, based on an opinion that a person is more likely than not to commit a serious act of violence in the future, as 'the antithesis of the judicial process'[109]. Six members of this Court described what is involved in judicial process in Bass v Permanent Trustee Co Ltd[110]: 'Judicial power involves the application of the relevant law to facts as found in proceedings conducted in accordance with the judicial process. And that requires that the parties be given an opportunity to present their evidence and to challenge the evidence led against them. '" 89. Applications entertained ex parte for orders with immediate effect upon the person or property of another are a well-established qualification to that general principle[111]. One of the complaints respecting the processes for the making of the interim control orders under the legislation upheld in Thomas v Mowbray[112] concerned the ex parte nature of those applications. But Gummow and Crennan JJ emphasised that the legislation provided in the very short term for a contested confirmation hearing [113]. That is not so with regard to the restraining orders, which have a life which follows the pendency of an assets forfeiture application. 90. It is true that "at any later time" after the making of a restraining order, the Supreme Court may "make any ancillary orders ... that the Court considers appropriate". Section 12(1) so provides. However, Basten JA indicated in New South Wales Crime Commission v Ollis[114] that the term "ancillary" in s 12(1) envisages orders in aid of a pending assets forfeiture application under s 22. Giles JA, with whom Mason P agreed, held in Ollis that the suspicion upon which a restraining order was founded may only be positively displaced by exclusion application made under s 25[115]. His Honour said[116]: "It is not consistent with this scheme of the Act that, when a restraining order is made, there can be a further hearing at which the same judge or another judge can be asked to determine on the same material whether there are reasonable grounds for the suspicion; nor that there can be a further hearing at which further material is put before the same judge or another judge by the defendant and the judge is asked to determine on the enhanced material whether there are reasonable grounds for the suspicion. The making of the restraining order can be challenged on appeal, on the contention that the judge was in error in determining that there were reasonable grounds for the suspicion; or application can be made for an exclusion order. Whatever the scope of s 12(1)(a) of the Act, however, it does not extend to reconsideration of the basis of the restraining order, and the variation sought in order 1 of the defendants' amended notice of motion can not be made by a single judge (or, for that matter, on appeal)." The reference to the limited nature of the appellate process is significant. No submission was made to this Court that Ollis be overruled. In any event, we agree with the construction given to the Act in that case.
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Page 76 91. Before turning further to consider the exclusion application provision, it is convenient to refer in more detail to the United Kingdom "confiscation" legislation. This provides an instructive example of the use of ex parte procedures. 92. In Jennings v Crown Prosecution Service[117] Laws LJ said: "[P]recisely because the applicant is the Crown, the court must be alert to see that its jurisdiction is not being conscripted to the service of any arbitrary or unfair action by the state, and so should particularly insist on strict compliance with its rules and standards, not least the duty of disclosure." In England, RSC Order 115 is headed "Confiscation and Forfeiture in Connection with Criminal Proceedings". Rule 4(2) and (3) states: "(2) Unless the court otherwise directs, a restraint order made where notice of it has not been served on any person shall have effect until a day which shall be fixed for the hearing where all parties may attend on the application ... (3) Where a restraint order is made the prosecutor shall serve copies of the order and of the witness statement or affidavit in support on the defendant and on all other named persons restrained by the order and shall notify all other persons or bodies affected by the order of its terms." Rule 5(1) provides for applications to discharge or vary a restraint order, by any person or body on whom the order is served. These provisions were described by Lord Hobhouse of Woodborough in In re Norris[118] as making explicit the availability of an inter partes hearing to determine applications to discharge or vary an ex parte order.
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93. The scheme of the restraining order provisions of the Act is quite different, not the least with respect
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to the absence of a clear means of curial supervision of the duty to disclose material facts on ex parte applications. The importance of that duty in the administration of justice is to be seen from the reasons given by Lingdren J in Hayden v Teplitzky[119] for discharging certain assets preservation orders which had been made on an ex parte application. The English system described above clearly allows for the prompt enforcement of that duty. It may be that upon application for an exclusion order under s 25 it would be open to an applicant to agitate the question of the absence of full disclosure by the Commission. However, even if that be so, and it is unnecessary to form a concluded view on the matter, the disposition of the exclusion application will be controlled by the imperative terms of s 25(2). The application must fail unless the applicant discharges the burden imposed by that sub-section. 94. Section 25(2) states: "The Supreme Court must not make the exclusion order applied for unless it is proved that it is more probable than not that: (a) in the case of an order relating to fraudulently acquired property the interest in property to which the application relates is not fraudulently acquired property or is not illegally acquired property, or (b) in any other case the interest in property to which the application relates is not illegally acquired property." The phrase "fraudulently acquired property" is defined in s 9A so as to include interests held in a false name where a false instrument, identity document or signature was used knowingly for the purpose of its acquisition or for dealing with it. An interest in property is "illegally acquired property" if it is all or part of the proceeds of "illegal activity" or is in all or part the proceeds of a dealing with such property, or has been wholly or partly acquired using such property (s 9). The proceeds of a dealing do not lose their identity "merely as a result of being credited to an account" (s 9(7)). The expression "illegal activity" has a meaning which extends well beyond "serious crime related activity". It catches any act or omission which constitutes an offence at common law or against the laws of New South Wales or the Commonwealth (s 4(1)). 95. The result is that the effect of the suspicion by an authorised officer of the Commission, evidence supporting which has been provided to the Supreme Court on the application under s 10, which founds a restraining order possibly may be of considerable scope and may be displaced only when an application for an assets forfeiture order is no longer pending in the Supreme Court, or upon application under s 25. But that application cannot succeed unless the applicant proves to the Supreme Court that it is more probable than not that the interest in property for which exclusion is sought is not "illegally acquired property". 96. The making of that proof by the applicant for an exclusion order requires the negating of an extremely widely drawn range of possibilities of contravention of the criminal law found in the common law, and State and federal statute law. Indeed, where a relevant act or omission occurred outside the State and is an offence in the place where it occurred, the applicant must show that had the act or omission occurred within the State it would not have been an offence against the common law or State or federal statute law (s 4(1)). 97. The Supreme Court is conscripted for a process which requires in substance the mandatory ex parte sequestration of property upon suspicion of wrong doing, for an indeterminate period, with no effective curial enforcement of the duty of full disclosure on ex parte applications. In addition the possibility of release from
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Page 77 that sequestration is conditioned upon proof of a negative proposition of considerable legal and factual complexity. 98. Section 10 engages the Supreme Court in activity which is repugnant in a fundamental degree to the judicial process as understood and conducted throughout Australia.
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Conclusions 99. The appellants have succeeded in establishing the invalidity of s 10. They also challenged the validity of s 22 on a distinct ground. This is that the assets forfeiture provision is a bill of pains and penalties. Section 22 is not a bill of pains and penalties; it does not operate independently of a judicial determination of liability [120]. As the Commonwealth Solicitor-General correctly submitted, the significance of s 22 lies in its interaction with s 10 and not otherwise. Orders
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The appeal should be allowed. The appellants' costs should be paid by the first respondent. The orders of the Court of Appeal of the Supreme Court of New South Wales entered 6 November 2008 should be varied (a) by adding at the end of Order 2 "and proceedings 12212 of 2008 be dismissed and the first respondent pay the costs of those proceedings of the appellants", and (b) by adding an order declaring that s 10 of the Criminal Assets Recovery Act 1990 (NSW) is invalid. HAYNE, CRENNAN AND KIEFEL JJ. The issue
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101.A State statute permits a law enforcement authority to seek from the State's Supreme Court, without notice to anyone, an order preventing any dealing with specified property. The Supreme Court must make that restraining order if a law enforcement officer suspects that the person who owns the property has committed one of a broad range of crimes, or the officer suspects that the property is derived from criminal activity, and the Court considers that there are reasonable grounds for the suspicion. The statute makes no express provision for any subsequent contested hearing about whether a restraining order should be made. 102.On application by a law enforcement authority, the Supreme Court must order forfeiture of property subject to a restraining order if it is more probable than not that, at any time within the previous six years, the person whose conduct formed the basis of the restraining order had committed any offence punishable by five or more years' imprisonment. Subject to some exceptional cases where hardship would be caused to innocent others, property can only be excluded from the operation of a restraining order, or a forfeiture order, if it is shown to be more probable than not that the relevant interest in the property was not acquired as a result of any illegal activity. 103.Do the statute's requirements that the Supreme Court freeze dealings in any property of a person on ex parte application by the executive, and proof of mere suspicion that the person has committed a crime (based on articulated grounds and found by the Court to be reasonable), require the Supreme Court to engage in activity repugnant to the judicial process to such a degree that the statute is beyond the legislative power of the State? These reasons will demonstrate that this question should be answered "no". 104.The facts underlying this matter, and the history of proceedings in the courts below, are sufficiently described in the reasons of other members of the Court. The Criminal Assets Recovery Act 1990 (NSW)
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The principal objects of the Criminal Assets Recovery Act 1990 ("the CAR Act") include[121]: "to provide for the confiscation, without requiring a conviction, of property of a person if the Supreme Court finds it to be more probable than not that the person has engaged in serious crime related activities". The CAR Act defines[122] "serious crime related activity" very widely. It refers to "anything done by the person that was at the time a serious criminal offence" whether or not the person has been charged with the offence or, if charged, has been tried, tried and acquitted, or convicted (even if the conviction has been quashed or set aside). "[S]erious criminal offence" includes various drug and firearms offences [123]. It also includes any offence that is punishable by imprisonment for five years or more and that involves any of a wide variety of conduct including violence, theft, fraud, money laundering and tax or revenue evasion[124].
106.
The CAR Act provides for the Supreme Court to make various forms of order including a "restraining order"[125] and an "assets forfeiture order"[126]. As the name suggests, a restraining order: Page 77 of parts 1 & 2 19-7-2013 Re: COMPLAINT -Sheriff-CONTEMPT OF COURT etc INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati
Page 78 "is an order that no person is to dispose of or attempt to dispose of, or to otherwise deal with or attempt to otherwise deal with, an interest in property to which the order applies except in such manner or in such circumstances (if any) as are specified in the order"[127]. And as the name again suggests, an assets forfeiture order is:
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"an order forfeiting to, and vesting in, the Crown all or any of the interests in property that are, or are proposed to be, subject to a restraining order when the assets forfeiture order takes effect" [128]. 107. If an assets forfeiture order has been applied for, a person whose interest in property is or might be subject to the order may apply to the Supreme Court for an order (an "exclusion order") excluding the interest from the operation of the assets forfeiture order or any relevant restraining order[129]. The Court must not make the exclusion order unless it is proved[130] that it is more probable than not that the relevant interest was not "illegally acquired property" or, if the order relates to what the CAR Act identifies as "fraudulently acquired property", was not of that character and was not illegally acquired property. "[F]raudulently acquired property" is defined[131], in effect, as property held in a false name, where a false instrument or signature, or an identity document of another person, was used for the purpose of acquiring or dealing with the property. 108. The meaning of "illegally acquired property" is elaborated in s 9 of the CAR Act. At the risk of undue abbreviation, the expression encompasses the proceeds of any illegal activity, the proceeds of the disposal of or other dealing in illegally acquired property, and property wholly or partly acquired using illegally acquired property. "[I]llegal activity" is defined in s 4 in the broadest possible terms. It includes any act or omission that constitutes an offence (including a common law offence) against the laws of New South Wales or the Commonwealth. It also includes any act or omission that occurs outside New South Wales, is an offence against the law of the place where it occurs, and is of a kind that, if it had occurred in New South Wales, would have been an offence against the laws of New South Wales or the Commonwealth. It follows that, to obtain an exclusion order, a person must prove, on the balance of probabilities, innocence of any wrongdoing in connection with the acquisition of the property which it is sought to exclude from restraint or forfeiture. 109. The CAR Act provides (s 10(2)) that the New South Wales Crime Commission ("the Commission") (a body constituted under the New South Wales Crime Commission Act 1985 (NSW)) "may apply to the Supreme Court, ex parte, for a restraining order" in respect of some or all of the interests in property "of a person suspected of having engaged in a serious crime related activity or serious crime related activities". The CAR Act further provides (s 10(3)) that the Supreme Court "must make the order applied for under subsection (2)" if, first, "the application is supported by an affidavit of an authorised officer stating that ... the authorised officer suspects that the person has engaged in a serious crime related activity or serious crime related activities and stating the grounds on which that suspicion is based", and secondly, "the Court considers that having regard to the matters contained in any such affidavit there are reasonable grounds for any such suspicion". The CAR Act provides (s 10(6)) that the Supreme Court may refuse to make a restraining order if an appropriate undertaking with respect to the payment of damages or costs or both in relation to the making and operation of the order is not given. The CAR Act does not state any other basis for the Court to refuse to make the order sought. 110. After the first two working days of its operation, a restraining order remains in force in respect of an interest in property only for so long as certain conditions are met[132]. The most relevant of those conditions is that an application for an assets forfeiture order is pending in respect of that interest [133]. The CAR Act provides (s 11(1)) for the giving of notice of the making of a restraining order to the Director of Public Prosecutions and to the Commissioner of Police. As to the person or persons whose interest is subject to the restraining order, s 11(2) provides that: "If: (a) a restraining order is made in respect of an interest in property of a person, and (b) the person was not notified of the application for the making of the restraining order, notice of the making or variation of the order is to be given by the Commission to the person." The CAR Act further provides (s 12) for the Supreme Court to make any ancillary order the Court considers appropriate, either when it makes a restraining order or at any later time. Section 12(1) expressly provides that the power to make ancillary orders extends to an order varying the interests in property to which the restraining order relates and an order for examination on oath of the owner of an interest in property that is subject to the restraining order. Ancillary orders may be made[134] on application by the Commission, the owner of the property, the Public Trustee (if the restraining order has directed the Public Trustee to take control of an interest in property), or (with the leave of the Supreme Court) any other person.
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The making of a restraining order provides the gateway to the making of an assets forfeiture order in respect of some or all of the property restrained. Section 22(2) provides that the Supreme Court must make an assets forfeiture order: Page 78 of parts 1 & 2 19-7-2013 Re: COMPLAINT -Sheriff-CONTEMPT OF COURT etc INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati
Page 79 "if the Court finds it to be more probable than not that the person whose suspected serious crime related activity, or serious crime related activities, formed the basis of the restraining order was, at any time not more than 6 years before the making of the application for the assets forfeiture order, engaged in: (a) a serious crime related activity involving an indictable quantity, or (b) a serious crime related activity involving an offence punishable by imprisonment for 5 years or more". The arguments against validity
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The central thrust of the appellants' argument against the validity of some or all of the provisions of the CAR Act that had been engaged in the present matter was that the Act required the Supreme Court to make orders sequestrating the assets of a person on the mere suspicion of the executive of commission of crime (and on no other evidence), and without the person having any sufficient opportunity to contest the basis upon which the order would be made. These features of the operation of the CAR Act, and in particular the provisions of s 10(2) regulating the making of a restraining order, were said to deprive the Supreme Court "of the reality or appearance of independence or impartiality that is essential to its position"[135] as a court that exercises federal jurisdiction and for that reason to be so antithetical to the judicial process as to take the relevant provisions of the CAR Act beyond the legislative power of the State Parliament. If, as the appellants alleged, s 10 of the CAR Act was invalid, the whole structure of the Act collapsed because the making of both exclusion orders and assets forfeiture orders presupposed the valid making of a restraining order. 113.It can be seen that the argument against the validity of s 10 had two distinct but related elements: one concerning the grounds for making a restraining order, and the other concerning the procedures to be followed by the Supreme Court in making an order of that kind. While it will be necessary, of course, to consider both elements of the argument in combination, it is convenient to begin examination of the argument by treating the two elements separately. The grounds for making a restraining order
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The three relevant forms of order for which the CAR Act provides (restraining order, assets forfeiture order and exclusion order) are to be made on different footings. A restraining order is founded on proof that a law enforcement officer suspects (on reasonable grounds) the commission of a serious crime; an assets forfeiture order is founded on the existence of a restraining order coupled with proof, on the balance of probabilities, of commission of any serious crime in the previous six years; an exclusion order is made only on proof, on the balance of probabilities, that the relevant property or interest in property was acquired without any illegality. A restraining order denies the owner of property the capacity to dispose of or deal with that person's property. It is to be made on no more evidence than evidence of the executive's suspicion of commission of crime and the Supreme Court's determination that there are reasonable grounds for the suspicion. But final disposition of interests in the property, whether by forfeiture or by exclusion from restraint and forfeiture, is to be made on proof of more than suspicion of commission of crime. 115. Because a restraining order is a necessary but not sufficient precursor to making an assets forfeiture order, it is unsurprising that the facts to be established in order to obtain a restraining order differ from the facts that are to be established when an assets forfeiture order is made. Although the CAR Act provides[136] for the exclusion of property from the reach of an assets forfeiture order after that order has been made, an assets forfeiture order is properly seen as intended (subject to that exception) to be the final disposition of rights in property. And the evident legislative intention of the CAR Act is that, without the necessity for conviction, and even in the face of an acquittal, a person who is found to have probably engaged in serious crime related activity is to have all of his or her property confiscated and forfeited to the Crown except to the extent that that person can show that the property was acquired without any form of wrongdoing. 116. The chief weight of the appellants' argument fell upon the validity of s 10 of the CAR Act and its provisions regulating the making of a restraining order. The burden of the argument was that because the only issues for determination by the Supreme Court in an application for a restraining order are first, whether a law enforcement officer suspects that the owner of the property has committed a relevant crime or that the property is derived from criminal activity, and secondly, whether the stated grounds for that suspicion are reasonable[137], the Supreme Court is, in effect, placed in the position of acting at the behest of the executive. 117.The first of the issues identified (the holding of a relevant suspicion) may not often be capable of contradiction, yet it is possible to imagine cases where it could be said that the application was made in bad faith, no suspicion being genuinely entertained. 118.The second issue, about whether the stated grounds give a reasonable basis for the asserted suspicion, may be arguable more often than the first. Certainly a judge called on to make a restraining order would be expected, even if the person interested in opposing the making of a restraining order was not, or could not be, heard, to pay close attention to this second aspect of the matter. But each element of the requirements that must be satisfied before a restraining order is made tenders an issue for decision. That is, a judge asked to make a
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Page 80 restraining order must exercise judgment according to identified standards in deciding whether the grounds for making an order are established. 119. If the application for a restraining order were to be made on notice (as s 11(2)(b) of the CAR Act inferentially acknowledges it may be[138]) both of the issues which must be decided by the judge asked to make the order would be open to controversy and argument. And as these reasons will later demonstrate, if the application for a restraining order is made without notice of the application being given to persons affected, any person who is affected by the order may apply for reconsideration of the restraining order by the judge who made the order or by another judge. On that application for reconsideration of the order made ex parte, the person seeking to argue against maintenance of the order may agitate any aspect of the issues that determine whether the Supreme Court must make a restraining order. 120. It is true that, if the material advanced by the Commission in support of an application for a restraining order meets the requirements of s 10(3), the Court will have no choice but to make the order that is sought. But this is a commonplace in the judicial system. 121.The principle applied in Finance Facilities Pty Ltd v Federal Commissioner of Taxation[139] recognises that there are many cases where a statute confers a power on a court (and to that end uses the word "may") but does so in terms that make plain that the authority thus given must be exercised upon proof of the particular case out of which the power arises. In the present case, the CAR Act avoids the constructional difficulty that sometimes attends cases resolved by applying the Finance Facilities principle by saying that the Court must make a restraining order if the conditions for its making are established. But that does not deny that in every case where application is made for a restraining order the issue tendered for decision will be whether the relevant conditions are met. And the decision of an issue of that kind is an ordinary and unremarkable performance of the judicial function. Apart, then, from setting the relevant factual hurdle at the level of the existence of a reasonably grounded suspicion of criminal conduct, as distinct from proof of its commission, the provisions of s 10(3) of the CAR Act do not differ from any of a number of different statutory conferrals of jurisdiction upon courts which require the court to exercise a power if conditions prescribed for its exercise are met. And as pointed out earlier, a restraining order, though working a considerable effect on property rights, does not finally dispose of those rights. The final disposition of property by assets forfeiture order or exclusion order is not to be made on mere suspicion. The procedures for making a restraining order
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Do the procedures for exercise of the Supreme Court's powers to make a restraining order under the CAR Act differ in any relevant respect from the procedures usually followed in the judicial process? 123. The Court of Appeal of New South Wales has held[140] that, if a restraining order is made on the ex parte application of the Commission, that order cannot thereafter be reconsidered by the judge who made the order, or by another single judge of the Supreme Court, whether by reference to the material advanced by the Commission or by reference to that material as supplemented by further evidence. The Court of Appeal held, in effect, that the only way in which a restraining order can be challenged is by appeal. 124. It was on this understanding of the operation of the CAR Act that the appellants submitted that their property rights could be, and in this case had been, substantially curtailed in proceedings in which they had not been and could not be heard. The construction of the CAR Act which was the premise for this submission should not be adopted. The decision of the Court of Appeal in New South Wales Crime Commission v Ollis should be overruled. 125. If the CAR Act did not expressly provide, as it does in s 10(2), that the Commission may apply ex parte for a restraining order, it may have been arguable that a person affected by such an order was entitled, as of right, to the setting aside of any such order made without notice to that party [141]. Section 10(2) puts beyond doubt that the argument just described is not available. But s 10(2) does not provide that the Supreme Court may make a restraining order only upon hearing the Commission in support of the application and without permitting any party affected to oppose the making of the order. Although the Commission may seek a restraining order without notice to any other person, s 11(2)(b) recognises, as already noted, that the Commission may give notice of its application to others, including a person or persons who may be thought to have an interest in the property that is to be restrained. 126. It by no means follows that, because an application for a restraining order may be made ex parte, an order so obtained, unlike any other order made ex parte by the Supreme Court, cannot be reconsidered inter partes on the application of a person affected. That reconsideration can be undertaken by the judge who made the order, or by another judge. The grounds for reconsideration include, but are not limited to, an allegation that the Commission did not make full and frank disclosure of all matters bearing upon whether the order sought should be made. The material that may be examined on application for reconsideration of the order is not confined to the material that the Commission placed before the Court in support of its ex parte application. Nothing in the CAR Act expressly excludes the applicability of these propositions. The CAR Act should not be read as impliedly denying their applicability.
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Page 81 It is necessary to make good the propositions just stated. Each is founded on the general proposition that the relevant provisions of the CAR Act take the Supreme Court as they find it. More particularly, because statutory construction is more than an exercise in literal comprehension, the relevant provisions of the CAR Act must be read in the setting provided by the common law system of adversarial trial administered in Australian courts[142] and the processes ordinarily followed by the Supreme Court. As the whole Court said, more than 50 years ago, in Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW[143], it is well established that when legislation refers a particular matter for hearing and determination to an existing court established as part of the judicial system of the State, "unless and except in so far as the contrary intention appears ... it is to the court as such that the matter is referred exercising its known authority according to the rules of procedure by which it is governed and subject to the incidents by which it is affected". As the Court went on to say[144]:
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"It may be remarked that the rule or principle invoked is but an expression of the natural understanding of a provision entrusting the decision of a specific matter or matters to an existing court. It is no artificial presumption. When the legislature finds that a specific question of a judicial nature arises but that there is at hand an established court to the determination of which the question may be appropriately submitted, it may be supposed that if the legislature does not mean to take the court as it finds it with all its incidents including the liability to appeal, it will say so. In the absence of express words to the contrary or of reasonably plain intendment the inference may safely be made that it takes it as it finds it with all its incidents and the inference will accord with reality."
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Neither s 10(2), providing for a restraining order to be sought ex parte, nor the provisions of s 12, enabling the making of various forms of orders ancillary to the making of a restraining order, shows that the Act should be read as inferentially excluding application by the party affected by a restraining order, after the order has been made, to contest whether it should have been made or should continue and to adduce evidence in support of that party's case. Indeed, absent express and clear indication of that intention[145] ("reasonably plain intendment"[146]), the CAR Act should not be construed as working such a fundamental alteration to civil procedure as would be required to conclude that an order made ex parte should not be open to subsequent review and reconsideration on the application of a party adversely affected by it[147]. An intention to effect such a change is not "to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations"[148]. And neither the provision for making application ex parte nor any other feature of the Act engaged principles of the kind discussed in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia[149] and, more recently, Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom[150]. 129. As a general rule, since the late 19th century, a court or judge has had no power to review, rehear, vary or set aside any judgment after it has been passed and entered, or any order after it has been drawn up[151]. That is, as a general rule, a judgment or order, once formally recorded, can be discharged or varied only on appeal. It is not necessary to stay to consider the recalling of an order that has been pronounced but not formally recorded, or the particular position of the orders of this Court as the court of final resort [152]. 130. The general rule that a judgment or order that has been formally recorded cannot be reconsidered except by processes of appeal has long been recognised to be subject to some qualifications. In particular, it is a rule that does not apply to an order made ex parte[153]. As Griffith CJ rightly said, in Owners of SS Kalibia v Wilson[154]: "when a judicial order has been obtained ex parte the party affected by it may apply for its discharge. This is an elementary rule of justice, of the application of which familiar instances are afforded by writs of ca re and ex parte injunctions." And it is, therefore, unsurprising that rules of court, including the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"), provide expressly[155] for applications of that kind in cases where a judgment or order given or made in the absence of a party has been entered. But as the UCPR also recognise[156], the power of the Supreme Court of New South Wales to set aside judgments or orders made ex parte is not derived only from the Rules; it is a power necessarily implied as a part of the power of the Court to proceed ex parte. That is, as Griffith CJ put the point, it is "an elementary rule of justice".
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One particular basis for seeking to set aside an order obtained ex parte is exemplified by the decision of Isaacs J in Thomas A Edison Ltd v Bullock[157]. In that matter, Barton J had granted an interlocutory injunction on ex parte application by the Edison company. The defendant moved before Isaacs J to dissolve the injunction on grounds including that the Edison company had not disclosed material facts. Isaacs J held[158] that a party asking for an injunction ex parte is duty bound "to bring under the notice of the Court all Page 81 of parts 1 & 2 19-7-2013 Re: COMPLAINT -Sheriff-CONTEMPT OF COURT etc INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati
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Page 82 facts material to the determination of his right to that injunction, and it is no excuse for him to say he was not aware of their importance". As Isaacs J went on to say[159]: "the party inducing the Court to act in the absence of the other party ... fails in his obligation unless he supplies the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in his defence to that application. Unless that is done, the implied condition upon which the Court acts in forming its judgment is unfulfilled and the order so obtained must almost invariably fall." 132.The decision in Edison can be understood as a particular application of the equitable maxim that a party who seeks equity must do equity. But the obligation to make proper disclosure when seeking relief from a court without notice to the opposite party should not be understood as confined to cases where equitable relief is sought. 133. In the Supreme Court of New South Wales, the obligation might be seen as rooted in the requirement of s 56 of the Civil Procedure Act 2005 (NSW) that the overriding purpose of that Act and the UCPR is "to facilitate the just, quick and cheap resolution of the real issues" in proceedings. That statement of overriding purpose is certainly not inconsistent with the existence of an obligation to make proper disclosure when moving the Court ex parte, but the source of the obligation is better understood as lying in the very nature of the adversarial system administered in Australian courts, coupled with the emphasis given [160] to the desirability of finality in litigation. Unless a party moving a court to make orders in the absence of parties having an interest to oppose their making is obliged to make proper disclosure of all relevant materials, hearings will be needlessly multiplied and prolonged. Courts should not be asked to make orders in the absence of opposing interests on material that is or should be known to be deficient. If an order is made in those circumstances, the consequences identified by Isaacs J in Edison[161] should follow: "the order so obtained must almost invariably fall". 134. But the power to set aside an order obtained ex parte for want of proper disclosure is not the only power to set aside an order obtained ex parte. A person affected by an order, but as to the making of which the person has not been heard, may move[162] for reconsideration of the order either on the material before the judge at the time of making the order or on that material supplemented by further material. Whether or when it would be forensically possible to achieve a different result on reconsideration of an order, if the material on which the order was made was not supplemented, need not be considered. And whether a person who recognises that he or she may later be charged with an offence would think it wise to take a step which may expose the person to cross-examination about suspicions said to be held by authorities is likewise not to the point. What is presently important is that, because the CAR Act gives the Supreme Court the jurisdiction to make a restraining order, the Act takes the Court and its processes as it finds them, except to the extent the Act modifies or qualifies those processes. Any modification of, or qualification to, that rule would require the clearest language. There is no provision of the CAR Act that expressly modifies that "elementary rule of justice" that a party affected by a judicial order obtained ex parte may apply for its discharge. No implied modification or qualification of the rule can be spelled out from the terms of the CAR Act, whether by reference to the Act's provisions about ancillary orders or otherwise. 135.The Commission expressly accepted, in argument in this Court, that the CAR Act does not inferentially exclude the ordinary power of the Supreme Court to reconsider an order made ex parte if it is alleged that the order was obtained without the applicant making full disclosure of relevant matters. As earlier observed, the CAR Act provides that the Commission may apply ex parte for a restraining order and that the Supreme Court must make that order if the conditions described earlier in these reasons are met. To that extent, the CAR Act provides its own distinct procedural regime for the exercise of the power to make a restraining order. But the question which then arises is whether, by permitting but not requiring the Commission to apply ex parte, the Act impliedly excludes the engagement of an important consequence that attaches to and ordinarily follows from a court's exercise of power ex parte. That question is presented, but not answered, by the observation that a restraining order may be made ex parte. Repugnance to judicial process?
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Neither the grounds for making a restraining order nor the procedures of the Supreme Court that are or may be engaged in the making or reconsideration of such an order, whether considered separately or in combination, are repugnant to the judicial process as understood and conducted in Australia. Section 10 of the CAR Act does not deny either the reality or the appearance of the impartiality of the Supreme Court of New 55 South Wales. It is not invalid. 137.As for the separate challenge to s 22 of the Act, which provides for the making of an assets forfeiture order, it is enough to make two points. First, we agree with Gummow and Bell JJ that, for the reasons their Honours give, s 22 is not a bill of pains and penalties. Second, whether, in particular operations of s 22, the section may be engaged in ways that do present issues about the intersection of that operation with principles of the kind 60 usually grouped under the rubrics of double jeopardy or incontrovertibility of acquittals is a question that does not arise in this case. No factual footing for its consideration yet exists and no order has yet been made in this Page 82 of parts 1 & 2 19-7-2013 Re: COMPLAINT -Sheriff-CONTEMPT OF COURT etc 5 INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati
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Page 83 matter under s 22. It is neither necessary nor appropriate to consider further the validity of s 22. The challenge to the validity of s 10 failing, any broader issue about the validity of s 22 should await another day. Orders
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138.The appeal to this Court should be dismissed. The Commission sought no order as to costs. 139.HEYDON J. The background circumstances are set out in the judgment of Gummow and Bell JJ. The abbreviations there employed are employed below. The Kable doctrine and s 10 140. General. At least at the time when it was decided, Kable v Director of Public Prosecutions (NSW)[163] had its critics. Whatever the force of their criticisms, there is no doubt that the decision has had extremely beneficial effects. In particular, it has influenced governments to ensure the inclusion within otherwise draconian legislation of certain objective and reasonable safeguards for the liberty and the property of persons affected by that legislation. It is true that apart from the Kable case itself there has been no successful invocation of the doctrine associated with that case in this Court, and no challenge to the correctness of that doctrine. In these very proceedings the parties did not challenge the correctness either of the Kable case or of anything said in it. It is accordingly not necessary to evaluate the criticisms. The case stands. It must thus be applied if circumstances which attract its operation arise. One central proposition in the Kable case which has never been challenged is Gummow J's statement that a provision in a State statute conferring an authority on a State court capable of exercising federal jurisdiction which is "repugnant to the judicial process in a fundamental degree" is not constitutionally valid[164]. 141. The centrality of "hearings". One of the primary principles on which the judicial process in this country operates is the principle that before any judicial decision is made which has substantive consequences[165] there generally should be a "hearing". A hearing takes place before a judge at a time and place of which the moving party has given notice to the defending party. At it both parties have an opportunity to tender evidence relating to, and advance arguments in favour of, the particular orders they ask for. This aspect of the rules of natural justice pervades Australian procedural law. It has several justifications, and their force is so great that exceptions to the hearing rule in judicial proceedings are very narrow. 142.One justification is that the forensic system employed in the courts of this country in civil proceedings for remedies having substantive consequences is adversarial. Ex hypothesi, it is not possible for a court to operate an adversarial system without the court having the evidence and arguments which each adversary wants to have considered. If the hearing rule were different, the system would be internally contradictory. 143.Another justification is that to act only on the version advanced by one adversary is to risk reaching unsound conclusions, and thus to risk both injustice and inefficiency. Experience teaches that commonly one story is good only until another is told. Where a judge hears one side but not the other before deciding, even if the side heard acts in the utmost good faith and makes full disclosure of all that that side sees as relevant, there may be considerations which that side had not entertained and facts which that side did not know which, if brought to the attention of the judge, would cause a difference in the outcome. "The person most likely to have thought of cogent considerations, and to know the relevant facts, is the person whose interests are in jeopardy, that is the party opposing the decision. Therefore we shall avoid bad decisions best if we ensure that each potential decision, before it is finally decided, is exposed to what is likely to be the strongest possible criticism of it."[166] Thus, hearing both sides before deciding tends to quell controversies and discontents. As Megarry J said in John v Rees[167]: "It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. 'When something is obvious', they may say, 'why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.' Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change." Of the last sentence Lord Hoffmann has observed [168]: "Most lawyers will have heard or read of or even experienced such cases but most will also know how rare they are. Usually, if evidence appears to an experienced tribunal to be irrefutable, it is not refuted." Perhaps both Megarry J and Lord Hoffmann are guilty of a little exaggeration. But even if Lord Hoffmann's reasoning is completely correct, it does not destroy Megarry J's point.
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A further justification for the practice of hearing both sides is that it respects human dignity and individuality. "[S]ince men can talk, they should be allowed to, and not just bundled about like chessmen." [169] Page 83 of parts 1 & 2 19-7-2013 Re: COMPLAINT -Sheriff-CONTEMPT OF COURT etc INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati
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Page 84 "[W]e think we owe it to a man as a human being to engage in argument with him, and allow him to engage in argument with us, rather than take decisions about him behind his back, completely disregarding, as it were, his status as a rational agent, able to appreciate the rationale of our decisions about him, possibly willing to cooperate in carrying them out."[170] 145. Finally, there is what has been called an "argument from Political Liberty" [171]: "[E]ach man ought himself to have some say of his own in his own future, and ... each man ought to count, to count as being himself, and not merely as one instance among many of the human species. We therefore think each man ought to be able to instruct his own counsel (or appear in person) to represent his own views, not merely those views which a benevolent authority might deem him to hold. ... [O]n a matter on which he is likely to have very strong wishes, namely where a decision (judicial or administrative) is in danger of being taken adversely to his interests, he should have a chartered right of having a say, that is, the authority has a duty to hear him." Thus Megarry J also said in John v Rees[172]: "[T]hose with any knowledge of human nature who pause to think for a moment [are not] likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events." 146. Illustrations. The courts are extremely solicitous about the interests of persons who have not been given an opportunity to be heard either at all or in respect of particular questions before judicial orders of a substantive kind are made against them. Many illustrations of the duty only to make substantive judicial orders after giving a hearing that is, not to act ex parte or sua sponte can be found. A court may not decide a case on a point not raised by one of the parties or by the court for the consideration of the parties [173]. Non-compliance by a court of trial with the duty to give a hearing on a question of law which "must clearly be answered unfavourably to the aggrieved party" will not lead to a new trial, but where no hearing is given on the question whether a finding of fact turning on witness credibility should be made, it is not easy to conclude that a new trial should be refused on the ground that even if a hearing had taken place, "it could have made no possible difference to the result."[174] The court is not entitled to take into account factual material not in evidence without notice to the parties[175]. The court is not entitled to take judicial notice of particular matters of fact after inquiry without notifying the parties of the inquiry and giving them the opportunity to controvert or comment on the source in which the inquiry is made[176]. When local justices propose to use their local knowledge, it is "always wise" to make that fact known to the parties so as to give them an opportunity to comment on the knowledge claimed[177]. If, in determining whether the law should be developed in a particular direction, the court has recourse to learned works, it ought to give the parties an opportunity to deal with all matters which the court regards as material[178]. The same is true where the court is concerned with matters of fact going to the constitutional validity of legislation, the construction of statutes, and the construction of the Constitution[179]. Juries[180] and judges[181] may take into account their observations of the behaviour of witnesses in the well of the court which could not have been made by counsel, but only if they reveal what they have seen to the parties. A court which acts on its understanding of a document in a foreign language without informing the parties commits a breach of the rules of natural justice[182]. 147. Abuse of process following a proper hearing. Conversely, the significance of the hearing rule is revealed by the fact that a hearing at which all parties were present may present an obstacle to future litigation. Thus it is an abuse of process to institute proceedings "for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made."[183] 148. Interlocutory injunctions in equity. The sensitivity of the law towards the interests of parties who may be affected by ex parte substantive orders is illustrated by various aspects of equitable practice in relation to interlocutory injunctions. 149.There is a general rule of practice that no injunction will be granted ex parte unless it takes one of two forms. One form of injunction is that granted for a very short period within which notice is given to the defendant of its existence, so that the defendant may oppose any extension of it beyond that very short period. The second form of injunction is that granted until further order, but with liberty for the defendant to make a speedy application for it to be set aside. The former type of order is usually regarded as the more desirable. But our equitable practice knows nothing of an ex parte injunction granted until trial without liberty to apply for speedy dissolution. 150. Another instructive aspect of equitable practice is afforded in relation to the question of whether an ex parte injunction should be granted at all. It was summarised thus by Lord Hoffmann, delivering the opinion of the Privy Council in National Commercial Bank Jamaica Ltd v Olint Corpn Ltd[184]: "Although the matter is in the end one for the discretion of the judge, audi [alteram] partem is a salutary and important principle. Their Lordships therefore consider that a judge should not entertain an application of which no notice has been given unless either giving notice would enable the defendant to take steps to defeat the
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Page 85 purpose of the injunction (as in the case of a Mareva or Anton Piller order) or there has been literally no time to give notice before the injunction is required to prevent the threatened wrongful act. ... Their Lordships would expect cases in the latter category to be rare, because even in cases in which there was no time to give the period of notice required by the rules, there will usually be no reason why the applicant should not have given shorter notice or even made a telephone call. Any notice is better than none." (emphasis in original) 151. Commissioner of Police v Tanos. Illustrations of the aversion of Australian judicial process to ex parte relief of a substantive kind could be multiplied extensively, but a final illustration is Commissioner of Police v Tanos. In that case Dixon CJ and Webb J said[185]: "[I]t is a deep-rooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard." Their Honours then said of this "general principle" that it was "hardly necessary to add that its application to proceedings in the established courts is a matter of course."[186] That case concerned s 3(1)(b) of the Disorderly Houses Act 1943 (NSW), which provided that the Supreme Court of New South Wales "may declare" premises to be a disorderly house on the affidavit of a police officer claiming reasonable grounds for suspecting one or more of various conditions. The Disorderly Houses Regulations, reg 1, gave the Court power to make the declaration "immediately and ex parte" if this seemed "necessary or desirable" or on notice and inter partes if the Court thought an opportunity should be given to the owner or occupier to oppose the making of the declaration. Their Honours thought that on its true construction the regulation meant that prima facie the second course should be followed, and that the former course should be followed "only in exceptional or special cases" where there was "some special hazard or cause of urgency"[187]. The case affords an instructive contrast with the present, for no such judicial discretion is available here. 152. Section 10(2)[188] of the Act provides that the Commission "may" apply for a restraining order ex parte. Section 10(3)[189] provides that if the Commission makes an application for a restraining order ex parte, the Supreme Court "must" make that order if the affidavit relied on by the Commission satisfies stipulated conditions. That is, the Supreme Court has no discretion to adjourn the hearing briefly while notice is given to the person affected. Although this is not by itself repugnant to the judicial process in a fundamental degree, it is relevant to whether one other aspect of the legislation is. 153 The duration of restraining orders. Section 10(9)[190] makes it plain that once a restraining order has been made, unless it is set aside on appeal, it remains in force for two working days and continues to remain in force thereafter indefinitely until such time as all the states of affairs described in paragraphs (a)-(d) cease to exist. That period could be quite lengthy, since, for example, there is no statutory obligation on the Commission to prosecute the application for an assets forfeiture order described in s 10(9)(a) with any expedition. The extreme significance in the legislative scheme of the grant of a restraining order is highlighted by s 22(1A). It provides that an application for an assets forfeiture order under s 22(1) may be made "before or after or at the same time as an application for the relevant restraining order but may not be determined before the restraining order is granted." The scheme is that assets are to be frozen first and argued about afterwards possibly a long time afterwards. 154. Practical utility. It is understandable that the Act places a high significance on the importance of obtaining a restraining order without notice to defendants. No doubt many potential defendants are able to dispose of their assets very speedily, and would do so, if given notice of the application before the restraining order is made. A duty in the Supreme Court to grant an ex parte restraining order for a short period pending an application by the defendant to oppose its continuation, or dissolve it, is not repugnant to the judicial process in a fundamental degree. But the practical desirability of ensuring that assets not be disposed of before an application for a restraining order comes to court is one thing. Creating a capacity in the Commission to retain a restraining order it has obtained ex parte without there being any procedure by which the defendant may apply to have it speedily dissolved is another. 155. The central issue. If there is no procedure by which the person subject to a s 10(2) restraining order made ex parte may approach the Court to have it set aside once that person has learnt of the order, the effect of s 10 is to compel the Supreme Court of New South Wales to engage in activity which is repugnant to the judicial process in a fundamental degree. 156.The element which is repugnant is not the grant of a power to make restraining orders ex parte. That is a very well-known aspect of Australian judicial process in relation to injunctions, although the power should only be exercised in exceptional or special cases, where there is some special hazard or cause of urgency. A risk of dissipation of assets in such a fashion as to frustrate the objects of the law can be in that category. 157.Nor is the element which is repugnant the creation of a duty on the Court to make the order, if the conditions in s 10(3) are satisfied. That too is a well-known aspect of Australian judicial process. 158.Nor is the element which is repugnant to be found in the failure of the legislation to give the Court power to consider whether the circumstances are sufficiently extreme to justify a grant of ex parte relief or whether the order, if made, should be limited so as to last only for a short time. That is because that failure will cause little injustice if a wrongly made order is only made for a short time or can be dissolved speedily.
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Page 86 159.The repugnance arises if the legislation ensures that there is no facility for the Court to entertain an application to dissolve an ex parte restraining order once the defendant has received notice of its grant pursuant to s 11(2). If that facility existed, the potential injustice flowing from the preceding three characteristics of s 10 would be nullified or mitigated. But if it does not exist, there is the potentiality for extreme injustice in a fashion repugnant to the judicial process in a fundamental degree. 160.The crucial question is thus whether it is possible for a defendant to apply for speedy dissolution of the ex parte restraining order. The answer is "No". The Act does not expressly or implicitly grant defendants that facility. And its structure excludes it. 161. No statutory grant of the facility. There is no provision in s 10 or any other part of the Act pursuant to which a person against whom an ex parte restraining order has been made can apply to the Supreme Court to have the order set aside, at least without much difficulty and delay. The extensive list of orders set out in s 12(1) and described as "ancillary orders" does not contain any order of that kind. Section 12(1)(a) refers to "an order varying the interests in property to which the restraining order relates", but that language does not include an order setting aside the restraining order in its totality. An order which is "ancillary" to another is an order which is subservient, subordinate, auxiliary or accessory to it. An order which sets aside another order is not "ancillary" to it. Further, s 12(1) contemplates that an "ancillary" order can be made either later than or at the same time as the restraining order: a set of orders comprising a restraining order and an "ancillary" order made at the same time as the restraining order and setting it aside would be internally contradictory, which suggests that an order setting aside a restraining order is not an ancillary order. Nor does s 25 assist [191]. For the reasons given by Gummow and Bell JJ the narrow potentiality s 25 affords for bringing the restraining order to an end through a complex negative inquiry which is likely often to be very time-consuming does not prevent s 10 from operating so as to compel the Supreme Court to engage in an activity which is repugnant to the judicial process in a fundamental degree[192]. The same is true of s 20, because the power it affords to terminate the restraining order is only triggered once the Court decides not to make an assets forfeiture order, and that decision may not be made for a long time. 162. Statutory preclusion of the facility. In addition to the fact that there is no express provision in the Act permitting a speedy application to dissolve restraining orders granted ex parte, the relevant sections in Pt 2 of the Act read as a whole indicate that they constitute a self-contained and exhaustive regime. It is a regime which excludes any recourse to, or to an analogy with, the general law powers in the Supreme Court to permit an application by an affected person to dissolve ex parte interlocutory injunctions. The Commission made a contrary concession, but incorrectly. It is not open to it to advocate or accept particular constructions of the legislation in any fashion binding on this Court and thereby, as it were, to "concede" the legislation under which it operates into constitutional validity by converting it into a statute which is different from the one actually enacted by the legislature. 163.The self-contained and exhaustive nature of the regime is demonstrated by the quite close detail to which Pt 2 of the Act descends in dealing with restraining orders. It would be wearisome to engage in unduly minute analysis, but the following matters may be noted. Section 10(1) and (2) provides for how the orders are to be applied for. Section 10(2), (2AA) and (2A) provides for the property in relation to which the orders may be applied for. Section 10(3) and (3A) provides for when the orders must be made. Section 10(4) provides for the Court to order the Public Trustee to take control of property to which the restraining order relates: see also ss 12, 18, 19 and 21. Section 10(5)(a) gives the Court power to ensure that a restraining order may make provision for meeting out of the property to which the order applies the reasonable living expenses of any person whose interests in property are subject to the restraining order (including the reasonable living expenses of any dependants). Section 10(5)(b) gives the Court power to ensure that a restraining order makes provision for the payment out of the property to which the order applies of the reasonable legal expenses of any person whose interests in the property are subject to the restraining order, being expenses incurred in connection with the application for the restraining order or an application for a confiscation order, or incurred in defending a criminal charge: see also ss 16A, 16B and 17. Section 10(6) and (7) provides for undertakings as to damages or costs. Section 10(8) provides that if a restraining order is in force in respect of an interest of a person in property, the order does not prevent the levying of execution against the property in satisfaction or partial satisfaction of the debt arising under a proceeds assessment order in force against the person, or, with the consent of the Supreme Court, the sale or other disposition of the interest to enable the proceeds to be applied in satisfaction or partial satisfaction of that debt, or, with the consent of the Supreme Court, the application of the interest in satisfaction or partial satisfaction of that debt. Section 10(9) provides for the duration of the orders. Section 10B provides for applications for restraining orders to be made by telephone and for notice of those orders to be given by telephone. Section 11 provides for notice of the restraining orders. Section 12 provides for the making of numerous ancillary orders. Sections 13 and 13A provide for the abolition of certain privileges. Section 14 provides for orders for sale of certain types of property. Section 15 provides for recording restraining orders on title registers. Section 16 provides for punishments for contravention of restraining orders. Section 20 provides that if while a restraining order is in force the Supreme Court does not make an assets forfeiture order in respect of interests in property to which the restraining order relates or a proceeds assessment order in respect
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Page 87 of any person whose interests in property are affected by the restraining order, the Court may make an order in relation to the period for which the restraining order is to remain in force, and make such other order or orders as it considers appropriate in relation to the operation of the restraining order. 164. In 1864 the Supreme Court of the United States said: "Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified."[193] Under Pt 2 of the Act, there is notification only after the defendant's rights are affected, and no provision for any opportunity for defendants to argue that orders affecting them should be dissolved. In 1965 the Supreme Court of the United States said that the opportunity to be heard "must be granted at a meaningful time and in a meaningful manner."[194] The meaningfulness of notice depends on its timeliness. If the Commission chooses to proceed ex parte, the statutory scheme under consideration grants no right to notice before the ex parte order is made, and the grant by s 11(2)[195] of a right to notice of the ex parte order after it has been made is not a grant at a meaningful time because it can lead to no avenue by which the order can be dissolved before it causes more harm. 165.In short, the strict, confined, specific and tight regulation of the powers granted excludes recourse by analogy or otherwise to the general powers and traditional procedures of the Supreme Court in its administration of equitable relief. The "reasonably plain intendment" of the legislation is that Pt 2 does not, in this respect at least, take the Supreme Court of New South Wales as it finds it[196]. Bill of pains and penalties
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To some extent the appellants employed s 22(2)(b) as an aid to their arguments in support of the conclusion that s 10 was invalid by reason of the Kable doctrine. That conclusion has been accepted for reasons other than the existence of s 22(2)(b). But the appellants also advanced a distinct argument based on s 22(2)(b). They submitted that s 22(2)(b)[197] exposes a person to punishment, in the form of forfeiture of property, for an offence for which that person has not been prosecuted, tried or convicted; that s 22(2) was void as being in substance a bill of pains and penalties antithetical to the exercise of judicial power under Ch III of the Constitution; and that s 10(3) fell with s 22(2)(b) because the making of a s 10(3) restraining order was a condition precedent to the making of an assets forfeiture order under s 22(2)(b). 167 The submission must be rejected. Like a bill of attainder, a bill of pains and penalties "is a legislative enactment which inflicts punishment without a judicial trial"[198]. The key question is thus whether s 22(2)(b) provides for a judicial trial. The finding referred to in s 22(2)(b) can only be made after notice of the application for an assets forfeiture order has been given to the person described in s 22(2)(b): see s 22(9)[199]. That person has a right to appear and adduce evidence: s 22(9). And the rules of evidence apply to that process of adducing evidence: s 5(2)(b)[200]. Thus s 22(2)(b) provides for a judicial trial. The standard of proof to be satisfied by the Commission ("more probable than not") is lower than the conventional criminal standard. This may be an unamiable provision, but it does not entail constitutional invalidity[201]. The more extreme step of reversing the burden of proof itself has been held not to invalidate a federal statute[202]. Section 22(2)(b) does not adjudge any specific person or specific persons guilty of an offence: it leaves it to the Supreme Court to do so on that standard of proof, but otherwise in conformity with the rules of evidence. If any s 22(2)(b) order is made, it is made in exercise of judicial power, not legislative power. Section 22 does not undermine the protection of a criminal trial
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168.
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A final submission advanced for the appellants by reference to s 3(a) of the Act[203] was that a s 22(2)(b) order amounted to confiscation of property without a conviction; that the proceedings for the s 22(2)(b) order were thus civil proceedings; that the forfeiture effected by the order was punishment; that the person against whom the order was sought was in peril of punishment without the procedural safeguards of a criminal trial; that this violated the essential requirements of the exercise of judicial power and usurped it; and that to punish a person only after a civil hearing was impliedly prohibited by the doctrine of the separation of powers. 169.In substance, as emerged in oral argument, these submissions did no more than complain that it is not constitutionally possible for a State court to obtain an order for forfeiture of property unless the matters of fact constituting the conditions for forfeiture are proved beyond a reasonable doubt. For the reasons given above[204], the stipulation of a lower standard of proof does not lead to that conclusion. Orders 170.I agree with the orders proposed by Gummow and Bell JJ. [1] Constituted under the New South Wales Crime Commission Act 1985 (NSW), s 5. [2] CAR Act, s 10.
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Page 88 [3] CAR Act, s 22. [4] International FinanceTrust Company Ltd v New South Wales Crime Commission [2008] NSWCA 291; (2008) 251 ALR 479. [5] (1996) 189 CLR 51; [1996] HCA 24.
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[6] CAR Act, s 3(a). [7] CAR Act, s 3(c). [8] CAR Act, s 12(1)(b). [9] CAR Act, s 5(1). [10] CAR Act, s 5(2)(a).
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[11] CAR Act, s 5(2)(b). [12] CAR Act, s 6(1). [13] CAR Act, s 6(2). The specified offences include drug offences; offences involving money laundering, perverting the course of justice, and tax and revenue evasion, if punishable by more than five years imprisonment; and offences against s 197 of the Crimes Act 1900 (NSW) involving the destruction of or damage to property in excess of $500. Accessorial offences, and conspiracy, attempt or incitement to commit a serious offence are also covered by the definition. [14] CAR Act, s 6(2)(i). [15] CAR Act, s 10(6). [16] CAR Act, s 10(9).
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[17] CAR Act, s 20(1). [18] CAR Act, s 11(2). [19] CAR Act, s 12. [20] CAR Act, s 12(2) read with s 12(3). [21] CAR Act, s 22(9).
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[22] CAR Act, s 22(1A). [23] CAR Act, s 23(1)(a). [24] CAR Act, s 25(1). [25] CAR Act, s 25(2). The term "illegally acquired property" is defined in s 9, inter alia, as including the proceeds of "illegal activity", a term which is defined in s 4(1).
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[26] CAR Act, ss 25(5) and 25(6). [27] CAR Act, s 25(7). [28] [2008] NSWCA 291; (2008) 251 ALR 479 at 513. [29] [2008] NSWCA 291; (2008) 251 ALR 479 at 487 [39] per Allsop P, Beazley JA agreeing at 490 [56].
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[30] [2008] NSWCA 291; (2008) 251 ALR 479 at 503 [101] per McClellan CJ at CL, Allsop P agreeing at 481 [2], Beazley JA agreeing with Allsop P at 490 [56]. [31] [2009] HCATrans 047.
Page 89 [32] [2008] NSWCA 291; (2008) 251 ALR 479 at 502 [98]. [33] [2008] NSWCA 291; (2008) 251 ALR 479 at 502 [98]. [34] [2008] NSWCA 291; (2008) 251 ALR 479 at 502-503 [99]. [35] [2008] NSWCA 291; (2008) 251 ALR 479 at 503 [100].
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[36] [2008] NSWCA 291; (2008) 251 ALR 479 at 503 [101]. [37] [2008] NSWCA 291; (2008) 251 ALR 479 at 503 [100]. [38] [2008] NSWCA 291; (2008) 251 ALR 479 at 503 [101]. [39] [2008] NSWCA 291; (2008) 251 ALR 479 at 504 [104]. [40] [2008] NSWCA 291; (2008) 251 ALR 479 at 489 [52].
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[41] See generally Re Director of Public Prosecutions; Ex parte Lawler [1994] HCA 10; (1994) 179 CLR 270 at 279 per Brennan J, 289 per Dawson J; [1994] HCA 10; Blackstone, Commentaries on the Laws of England, (1766), bk 2 at 267-268 and (1769), bk 4 at 374-381; Freiberg and Fox, "Fighting Crime with Forfeiture: Lessons from History", (2000) 6 Australian Journal of Legal History 1; and the celebrated article by J J Finkelstein, "The Goring Ox", (1973) 46 Temple Law Quarterly 169. [42] Calero-Toledo v Pearson Yacht Leasing Co [1974] USSC 126; 416 US 663 at 682 (1974); Austin v United States [1993] USSC 98; 509 US 602 at 612-613 (1993). These judgments were concerned with the application to in rem civil forfeiture of the Eighth Amendment prohibition on imposition of excessive fines. [43] Early English customs statutes were precursors of criminal assets forfeiture laws, for example the Act of Frauds (1 Eliz c 11). See Harper, The English Navigation Laws: a Seventeenth-Century Experiment in Social Engineering, (1939) at 87; Freiberg and Fox, "Forfeiture, Confiscation and Sentencing", in Fisse, Fraser and Coss (eds), The Money Trail: Confiscation of Proceeds of Crime, Money Laundering and Cash Transaction Reporting, (1992) 106 at 114. The distinction between forfeitures and penalties was considered in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) [2003] HCA 49; 216 CLR 161 at 172-173 [29] - [31] per Gummow J, 177-178 [52] per Kirby J, 195-198 [108]-[112] per Hayne J; [2003] HCA 49. [44] See discussion in United States v Bajakajian [1998] USSC 75; 524 US 321 at 340-341 (1998) per Thomas J for the Court, 345-346 per Kennedy J (dissenting). [45] Which amended title 18 of the United States Code by inserting, inter alia, Ch 96, entitled "Racketeer Influenced and Corrupt Organizations" (18 USC 1961-1968).
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[46] Which amended title 18 of the United States Code by inserting, inter alia, a new Ch 46, entitled "Forfeiture" (18 USC 981- 982). [47] See generally Cassella, "An Overview of Asset Forfeiture in the United States", in Young (ed), Civil Forfeiture of Criminal Property, (2009) 23 at 27-30. [48] See generally Young (ed), Civil Forfeiture of Criminal Property, (2009), Chs 3 to 7.
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[49] Lusty, "Civil Forfeiture of Proceeds of Crime in Australia", (2002) 5 Journal of Money Laundering Control 345. [50] Crimes (Confiscation of Profits) Act 1986 (Vic); Crimes (Confiscation of Profits) Act 1986 (SA); Proceeds of Crime Act 1987 (Cth); Crimes (Confiscation of Profits) Act 1988 (WA); Crimes (Forfeiture of Proceeds) Act 1988 (NT); Crimes (Confiscation of Profits) Act 1989 (Q); Confiscation of Proceeds of Crime Act 1989 (NSW); Proceeds of Crime Act 1991 (ACT); Crime (Confiscation of Profits) Act 1993 (Tas). See discussion in Grono, "Civil Forfeiture The Australian Experience", in Young (ed), Civil Forfeiture of Criminal Property, (2009) 125. [51] Proceeds of Crime Act 2002 (Cth); Criminal Assets Recovery Act 1990 (NSW); Confiscation Act 1997 (Vic); Criminal Property Confiscation Act 2000 (WA); Criminal Proceeds Confiscation Act 2002 (Q); Criminal
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Page 90 Property Forfeiture Act 2002 (NT); Confiscation of Criminal Assets Act 2003 (ACT); Criminal Assets Confiscation Act 2005 (SA). [52] New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 8 May 1990 at 2527-2528. [53] New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 8 May 1990 at 2530.
5
[54] Dalton, Countrey Justice, (1619) at 267; Hale, The History of the Pleas of the Crown, new ed (1800), vol 1 at 363-364. [55] Proceeds of Crime Act 2002 (Cth), s 26(5); Confiscation Act 1997 (Vic), s 17(1); Criminal Proceeds Confiscation Act 2002 (Q), s 30A(3); Criminal Assets Confiscation Act 2005 (SA), s 25(5).
10
[56] Criminal Property Confiscation Act 2000 (WA), ss 41-46. Similarly, the Proceeds of Crime Act 2002 (UK) provides that applications for restraint orders may be made ex parte (s 42(1)) and does not expressly empower the court to require that notice be given to any party. Under Ontario's Civil Remedies Act 2001, an application for a restraining order may be made on motion without notice for up to 30 days (s 4(3)). [57] CAR Act, s 22(9).
15
[58] The doctrinal basis of Mareva or assets preservation orders was discussed in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 399-401 [41]-[44] per Gaudron, McHugh, Gummow and Callinan JJ; [1999] HCA 18. [59] Joyce, The Law and Practice of Injunctions in Equity and at Common Law, (1872), vol 2 at 1306, referring to Byron (Lord) v Johnston [1816] EngR 829; (1816) 2 Mer 29 [35 ER 851]; for general discussion on ex parte applications, see Joyce at 1306-1307; and Paterson (ed), Kerr on the Law and Practice of Injunctions, 6th ed (1927) at 635. [60] See Interpretation Act 1987 (NSW), s 31(1); Attorney-General (Vict) v The Commonwealth [1945] HCA 30; (1945) 71 CLR 237 at 267 per Dixon J; [1945] HCA 30; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 14 per Mason CJ; [1992] HCA 64; New South Wales v The Commonwealth (Work Choices Case) [2006] HCA 52; (2006) 229 CLR 1 at 161 [355]; [2006] HCA 52; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 at 553 [11]; [2008] HCA 4. See also KGeneration Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 at 519 [46]; [2009] HCA 4. [61] See Interpretation Act 1987 (NSW), s 34(3). [62] CAR Act, s 10(5). [63] CAR Act, s 11(2)(b).
20
25
30
[64] CAR Act, ss 12(1) and 12(2)(b). [65] See below at [79]-[80]. [66] See below at [162]-[165]. [67] See below at [90].
35
[68] Palling v Corfield [1970] HCA 53; (1970) 123 CLR 52 at 58-59 per Barwick CJ, 62 per McTiernan J, 6465 per Menzies J, 65 per Windeyer J agreeing with other members of the Court, 67 per Owen J, 69-70 per Walsh J, 70 per Gibbs J; [1970] HCA 53. [69] (1992) 176 CLR 1. [70] (1992) 176 CLR 1 at 36 per Brennan, Deane and Dawson JJ. [71] [1998] HCA 9; (1998) 193 CLR 173 at 188 [20]; [1998] HCA 9.
40
[72] [1998] HCA 9; (1998) 193 CLR 173 at 208 [74]. [73] [1998] HCA 9; (1998) 193 CLR 173 at 232 [146].
Page 91 [74] R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361 at 394; [1970] HCA 8. [75] [1998] HCA 9; (1998) 193 CLR 173 at 233 [148]. [76] [2005] HCA 44; (2005) 224 CLR 322 at 411 [247]; [2005] HCA 44.
5
[77] (2007) 228 CLR 651; [2007] HCA 14. [78] [2007] HCA 14; (2007) 228 CLR 651 at 669 [47]. [79] [2007] HCA 14; (2007) 228 CLR 651 at 669-670 [48]. [80] [2007] HCA 33; (2007) 233 CLR 307 at 355 [111]; [2007] HCA 33. [81] [2007] HCA 33; (2007) 233 CLR 307 at 355 [111].
10
[82] [2007] HCA 33; (2007) 233 CLR 307 at 312 (R Merkel QC in argument). [83] [2007] HCA 33; (2007) 233 CLR 307 at 355 [112]. [84] See Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575 at 598 [36] per McHugh J; [2004] HCA 46. [85] [1996] HCA 24; (1996) 189 CLR 51 at 118.
15
[86] (1992) 174 CLR 455; [1992] HCA 29. [87] [1992] HCA 29; (1992) 174 CLR 455 at 470. [88] See below at [90]-[97]. [89] See below at [99]. [90] See below at [99].
20
[91] [2008] NSWCA 291; (2008) 251 ALR 479. [92] By amendment made by the Drug Trafficking (Civil Proceedings) Amendment Act 1997 (NSW). [93] Provision also is made by s 19 of the Police Integrity Commission Act 1996 (NSW) for the exercise by that body of the functions of the Commission under provisions such as s 10 of the Act. [94] Paragraph (d) reads:
25
"an offence that is punishable by imprisonment for 5 years or more and involves theft, fraud, obtaining financial benefit from the crime of another, money laundering, extortion, violence, bribery, corruption, harbouring criminals, blackmail, obtaining or offering a secret commission, perverting the course of justice, tax or revenue evasion, illegal gambling, forgery or homicide". [95] Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1 at 17-18 [38]; [2007] HCA 3; John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291 at 302 [28]; [2007] HCA 28. [96] Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 at 560 [39]; [2008] HCA 4. [97] Mansfield v Director of Public Prosecutions (WA) [2006] HCA 38; (2006) 226 CLR 486 at 491 [7]; [2006] HCA 38; Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307 at 340 [55]; [2007] HCA 33.
30
35
[98] Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 at 583-589 [44] - [59], 612 [149], 615-616 [162]-[165]; [2006] HCA 50; Director of Public Prosecutions v Vu (2006) 14 VR 249 at 267. [99] New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 8 May 1990 at 2528.
Page 92 [100] New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 8 May 1990 at 2528-2529. [101] [2008] 1 AC 1028 at 1034. [102] [2001] 1 WLR 1388 at 1392; [2001] 3 All ER 961 at 966. [103] (1998) 103 A Crim R 113.
5
[104] [2008] NSWCA 291; (2008) 251 ALR 479 at 482. [105] [2008] NSWCA 291; (2008) 251 ALR 479 at 483. [106] See LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; (1983) 151 CLR 575 at 581-582; [1983] HCA 31.
10
[107] The most recent general statements of principle are found in Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 at 551-552 [6] - [7], 552-553 [10], 594 [175] and K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 at 530 [89] - [90], 535 [111]; [2009] HCA 4. [108] [2008] HCA 4; (2008) 234 CLR 532 at 594 [175]. [109] [1996] HCA 24; (1996) 189 CLR 51 at 106; [1996] HCA 24.
15
[110] [1999] HCA 9; (1999) 198 CLR 334 at 359 [56] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; [1999] HCA 9. [111] cf Re Criminal Proceeds Confiscation Act 2002 [2004] 1 Qd R 40 at 55. [112] [2007] HCA 33; (2007) 233 CLR 307.
20
[113] [2007] HCA 33; (2007) 233 CLR 307 at 355 [112]. See also at 509 [600] per Callinan J, 526 [651] per Heydon J. [114] [2006] NSWCA 76; (2006) 65 NSWLR 478 at 493. [115] [2006] NSWCA 76; (2006) 65 NSWLR 478 at 486-487. [116] [2006] NSWCA 76; (2006) 65 NSWLR 478 at 487. [117] [2006] 1 WLR 182 at 198; [2005] 4 All ER 391 at 410; affd [2008] 1 AC 1046.
25
[118] [2001] 1 WLR 1388 at 1394; [2001] 3 All ER 961 at 967-968. [119] (1997) 74 FCR 7 at 11-13. [120] Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575 at 654-656 [218] - [219]; [2004] HCA 46. [121] s 3(a).
30
[122] s 6. [123] s 6(2)(a), (b), (c) and (e). [124] s 6(2)(d). [125] s 10. [126] s 22.
35
[127] s 10(1). [128] s 22(1).
Page 93 [129] s 25(1). [130] s 25(2). [131] s 9A. [132] s 10(9).

5
[133] s 10(9)(a). [134] s 12(2). [135] K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 at 535 [111]; [2009] HCA 4. See also Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24; H A Bachrach Pty Ltd v Queensland (1998) 195 CLR 547; [1998] HCA 54; North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146; [2004] HCA 31; Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4. [136] s 25(1)(b). [137] cf George v Rockett (1990) 170 CLR 104; [1990] HCA 26.
10
15
[138] So far as relevant, s 11(2)(b) obliges the Commission to give notice of the making or variation of a restraining order to a person in respect of an interest in whose property the order was made "[i]f ... the person was not notified of the application for the making of the restraining order". [139] (1971) 127 CLR 106; [1971] HCA 12. See also, for example, Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1 at 17-18 [38]; [2007] HCA 3.
20
[140] New South Wales Crime Commission v Ollis [2006] NSWCA 76; (2006) 65 NSWLR 478. [141] Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 at 589 per Rich J; [1944] HCA 5; Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 at 7-8 per Gibbs J, 16 per Mason J; [1979] HCA 38. [142] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 343 [3]; [2000] HCA 63; Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45 at 76 [64]; [2006] HCA 44. [143] [1956] HCA 22; (1956) 94 CLR 554 at 559; [1956] HCA 22. [144] [1956] HCA 22; (1956) 94 CLR 554 at 560. [145] Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 at 589; Wentworth v NSW Bar Association [1992] HCA 24; (1992) 176 CLR 239 at 252; [1992] HCA 24.
25
30
[146] Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW [1956] HCA 22; (1956) 94 CLR 554 at 560. [147] The Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 at 395-396 per Dixon CJ and Webb J; [1958] HCA 6. [148] Tanos [1958] HCA 6; (1958) 98 CLR 383 at 396 per Dixon CJ and Webb J.
35
[149] (1932) 47 CLR 1; [1932] HCA 9. [150] (2006) 228 CLR 566; [2006] HCA 50. [151] See, for example, Burrell v The Queen (2008) 82 ALJR 1221; 248 ALR 428; [2008] HCA 34; Grierson v The King (1938) 60 CLR 431; [1938] HCA 45; In re St Nazaire Co (1879) 12 Ch D 88.
40
[152] See, for example, State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29; [1982] HCA 51; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; 60 ALR 68; [1985] HCA 28;
Page 94 Autodesk Inc v Dyason [No 2] [1993] HCA 6; (1993) 176 CLR 300; [1993] HCA 6; Elliott v The Queen (2007) 234 CLR 38; [2007] HCA 51. [153] See, for example, Owners of SS Kalibia v Wilson [1910] HCA 77; (1910) 11 CLR 689 at 694 per Griffith CJ; [1910] HCA 77; Thomas A Edison Ltd v Bullock (1912) 15 CLR 679; [1912] HCA 72; Hardie Rubber Co Pty Ltd v General Tire & Rubber Co (1972) [1973] HCA 66; 129 CLR 521 at 527 per Gibbs J; [1973] HCA 66; Bidder v Bridges (1884) 26 Ch D 1 at 9 per Lord Selborne LC, 12 per Cotton LJ. [154] [1910] HCA 77; (1910) 11 CLR 689 at 694. [155] r 36.16(2)(b). [156] r 36.16(4).
10
[157] [1912] HCA 72; (1912) 15 CLR 679. [158] [1912] HCA 72; (1912) 15 CLR 679 at 681-682. [159] [1912] HCA 72; (1912) 15 CLR 679 at 682. [160] D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12. [161] [1912] HCA 72; (1912) 15 CLR 679 at 682.
15
[162] cf Cretanor Maritime Co Ltd v Irish Marine Management Ltd [1978] 1 WLR 966 at 978; [1978] 3 All ER 164 at 174; Smith Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health (1989) 89 ALR 366 at 368. [163] (1996) 189 CLR 51; [1996] HCA 24. [164] [1996] HCA 24; (1996) 189 CLR 51 at 132.
20
[165] This expression excludes ex parte procedural orders like those made shortening the time for service of initiating process and directing speedy timetables with a view to the matter being readied quickly for an early inter partes interlocutory hearing. [166] Lucas, The Principles of Politics, (1966) at 132.
25
[167] [1970] Ch 345 at 402 (a case concerning the suspension by a national political party of one of its branches). [168] Secretary of State for the Home Department v AF (No 3) [2009] 3 WLR 74 at 102 [73]; [2009] 3 All ER 643 at 670. [169] Lucas, The Principles of Politics, (1966) at 269. [170] Lucas, The Principles of Politics, (1966) at 132.
30
[171] Lucas, The Principles of Politics, (1966) at 270. [172] [1970] Ch 345 at 402. [173] Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22; Friend v Brooker (2009) 83 ALJR 724; 255 ALR 601; [2009] HCA 21.
35
[174] Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145-146 per Mason, Wilson, Brennan, Deane and Dawson JJ; [1986] HCA 54. [175] Thomas v Thomas [1961] 1 WLR 1 at 6, 8 and 9; [1961] 1 All ER 19 at 22 and 24 (behaviour of a party in earlier proceedings); In re K (Infants) [1963] Ch 381 at 405-406 (report of guardian ad litem filed but not tendered: see also In re K (Infants) [1965] AC 201 at 237-238); Brinkley v Brinkley [1965] P 75 at 78-79 (evidence in earlier proceeding not tendered in later); In the Marriage of Dean (1988) 94 FLR 32 at 36-38 (textbooks on valuation of businesses not in evidence); Australian and Overseas Telecommunications Corporation Ltd v McAuslan [1993] FCA 620; (1993) 47 FCR 492 at 495-496, 506-512 and 517 (part of
40
Page 95 psychiatric reference work neither tendered nor the subject of cross-examination or re-examination); and the cases cited by Lord Bingham of Cornhill in R (Roberts) v Parole Board [2005] 2 AC 738 at 752-754 [16]-[17]. [176] Cavanett v Chambers [1968] SASR 97 at 101; Stokes v Samuels (1973) 5 SASR 18 at 26; Fairbank v Jones (1975) 10 SASR 367 at 370-371; Gordon M Jenkins & Associates Pty Ltd v Coleman [1989] FCA 245; (1989) 23 FCR 38 at 46-48. [177] Bowman v Director of Public Prosecutions [1990] Crim LR 600. [178] Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 208 CLR 460 at 511-512 [164] - [165]; [2002] HCA 9. [179] Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307 at 513 [618]; [2007] HCA 33.
10
[180] R v White (1987) 49 SASR 154 at 161-162. [181] Minagall v Ayres [1966] SASR 151 at 156; Jobst v Inglis (1986) 41 SASR 399 at 407-408; Angaston and District Hospital v Thamm (1987) 47 SASR 177; Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304; In the Marriage of J and K A Zantiotis [1993] FamCA 32; (1993) 113 ALR 441; In Marriage of Chehab (1993) 113 FLR 94; Marelic v Comcare [1993] FCA 599; (1993) 47 FCR 437 at 448-450; Kappos v State Transit Authority (1995) 11 NSWCCR 386 at 390-392; R v Martin (No 4) [2000] SASC 436; (2000) 78 SASR 140; Arian v Nguyen [2001] NSWCA 5; (2001) 33 MVR 37 at 44 [27]. [182] Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 290-292. [183] Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529 at 541 per Lord Diplock.
15
20
[184] [2009] 1 WLR 1405 at 1408 [13]. The other members of the Board were Lords Rodger of Earlsferry, Carswell, Brown of Eaton-under-Heywood and Mance. [185] [1958] HCA 6; (1958) 98 CLR 383 at 395; [1958] HCA 6. [186] Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 at 396. [187] Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 at 396.
25
[188] See [72]. [189] See [76]. [190] It provides: "After the first 2 working days of its operation, a restraining order remains in force in respect of an interest in property only while:
30
(a) there is an application for an assets forfeiture order pending before the Supreme Court in respect of the interest, or (b) there is an unsatisfied proceeds assessment order in force against the person whose suspected serious crime related activities formed the basis of the restraining order, or (c) there is an application for such a proceeds assessment order pending before the Supreme Court, or
35
(d) it is the subject of an order of the Supreme Court under section 20 (Effect on restraining order of refusal to make confiscation order)." [191] See [93]-[94]. [192] See [93]-[97]. [193] Baldwin v Hale [1863] USSC 3; 68 US 223 at 233 (1864).
40 5
[194] Armstrong v Manzo [1965] USSC 81; 380 US 545 at 552 (1965).
Page 96 [195] See [110]. [196] Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW [1956] HCA 22; (1956) 94 CLR 554 at 560 per Dixon CJ, McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ; [1956] HCA 22.
5
[197] See [111]. [198] Polyukhovich v The Commonwealth [1991] HCA 32; (1991) 172 CLR 501 at 535 per Mason CJ; [1991] HCA 32. [199] It provides:
10
"Notice of an application under this section is to be given to a person to whom the application relates and the person may appear, and adduce evidence, at the hearing of the application." [200] It provides: "Except in relation to an offence under this Act: ...
15
(b) the rules of evidence applicable in civil proceedings apply, and those applicable only in criminal proceedings do not apply, to proceedings under this Act." [201] Silbert v Director of Public Prosecutions (WA) [2004] HCA 9; (2004) 217 CLR 181 at 186 [11]; [2004] HCA 9. [202] Nicholas v The Queen (1998) 193 CLR 173; [1998] HCA 9. See also Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307 at 355-356 [113].
20
[203] See above at [83]. [204] See [167] above.
END QUOTE International Finance Trust Company Limited v New South Wales Crime Commission [2009]
In my view, were to permit this kind of rot of the Infringement Court and its purported 25orders/Warrant to be enforced then you are no better then those abusing/misusing their powers, indeed, as the first law officer of the state of Victoria I view you are bound to take immediate action to stop this rot. I do however understand that you may wish to present your counter arguments, and do not hesitate to do so as look forwards to this, and address them, however, failing any such counter 30arguments to prove legalities, then I view, you are bound to immediately take appropriate action and not just in regard of my case but in regard of each and every case dealt with by the Infringement Court. 35details and neither has anything been stated in order of priority. Awaiting your response,
This correspondence is not intended and neither must be perceived to set out all issues and or
G. H. Schorel-Hlavka O.W.B. (Friends call me Gerrit)

.
40

130719-R Clark Attorney General &amp; Others-Re COMPLAINT-Sheriff-CONTEMPT of COURT-Etc

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Page 1

Mr Robert Clark MP Attorney-General robert.clark@parliament.vic.gov.au

Mr G. H. Schorel-Hlavka, MAY JUSTICE ALWAYS PREVAIL Email: mayJUSTICEalwaysPREVAIL@schorel-hlavka.com

Re: -Sheriff-CONTEMPT OF COURT etc

Mr Robert Clark MP Attorney-General robert.clark@parliament.vic.gov.au Ted Baillieu Premier of Victoria ted.baillieu@parliament.vic.gov.au

Gary Liddle Chief Executive & Others, Vicroads C/o robert.clark@parliament.vic.gov.au

Ref: COMPLAINT & DEMAND to clarify - etc

20 At the left it clearly shows:

Dont you have any pride in upholding the Courts integrity?

MAY JUSTICE ALWAYS PREVAIL

( Awaiting your response,

Our name is our motto!)

40END QUOTE 26-10-2011 CORRESPONDENCE

any instalment under a payment order;

PART 2THE SHERIFF, THE DEPUTY SHERIFF AND SHERIFF'S OFFICERS

CLR 383, at p 395, Dixon C.J. and Webb J. said that

http://au.news.yahoo.com/video/nsw/watch/18007966/speed-camera-accuracy-not-checked/ QUOTE Speed camera accuracy not checked

Ted Baillieu Premier of Victoria ted.baillieu@parliament.vic.gov.au

Ref: Infringement Court case Number 1158210495

Mr. ISAACS.-No. If it is ultra vires of the Constitution it would, of course, be invalid.

kailaj@heraldsun.com.au END QUOTE article 11 September 2011

25QUOTE Civic Compliance Victoria Explained

Civic Compliance Victoria Explained

30Submitted by exfacie on Sat, 09/24/2011 - 13:57

Civic Compliance Victoria

Registered Trade Marks for CCV

The Crown in the Right of the State of Victoria

CIVIC COMPLIANCE VICTORIA

The Crown in the Right of the State of Victoria

The Crown in the Right of the State of Victoria

10The State of Victoria and Tenix

5exclusivelicenseto usethe CCVtrademarks.

51.18 Licence to use the Trade Marks

(ii) the TradeMarkmustbe accompaniedby the followingfootnote:The [inserttrademark]trademarkis usedby [insert

10Contractor'sdetails]underlicencefromthe Crownin Rightof the Stateof Victoria.

5In summary, based on the evidence provided:

1. 152. 3. 4. 5. 206. 7. 8. 9. 10. 2511. 12.

END QUOTE Civic Compliance Victoria Explained

30We also have to consider the following:

35Documents > Science & Technology

WITHOUT PREJUDICE Victorian Police

HANSARD 27-1-1898 Constitution Convention Debates 60QUOTE

Hansard 8-2-1898 Constitution Convention Debates QUOTE

Hansard 8-2-1898 Constitution Convention Debates QUOTE

QUOTE 20 (xv) weights and measures; END QUOTE

Hansard 21-1-1898 Constitution Convention Debates QUOTE Mr. REID

QUOTE (xii) currency, coinage, and legal tender; 50END QUOTE

Hansard 2-3-1898 Constitution Convention Debates QUOTE

Page 49 END QUOTE

MAY JUSTICE ALWAYS PREVAIL

name is our motto!)

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

20END QUOTE 23-2-2011 correspondence

QUOTE 30-5-2011 correspondence

WITHOUT PREJUDICE Ted Baillieu Premier 25ted.baillieu@parliament.vic.gov.au C/o Victorian Police

25QUOTE Hagens v. Lavine, 415 U.S. 533,

Page 57 END QUOTE

WUCHTER v. PIZZUTTI, 276 U.S. 13 (1928) 276 U.S. 13 QUOTE

Page 58 END QUOTE

25HANSARD 9-2-1898 Constitution Convention Debates

Sorell v Smith (1925) Lord Dunedin in the House of Lords

(xv) weights and measures;

MAY JUSTICE ALWAYS PREVAIL

Our name is our motto!)

130719-R Clark Attorney General & Others-Re COMPLAINT-Sheriff-CONTEMPT of COURT-Etc

130719-R Clark Attorney General & Others-Re COMPLAINT-Sheriff-CONTEMPT of COURT-Etc