WITHOUT PREJUDICE

The Hon Mr Tony Smith MP Chair, Joint Standing Committee on Electoral Matters

5-3-2014

5 PO Box 6021 PARLIAMENT HOUSE ACT 2600

em@aph.gov.au

AND TO WHOM IT MAY CONCERN 10 This document is not intended and neither must be deemed to be restricted for publication Supplement 2 to Submission dated 24-2-2014 Sir, it appears to me that neither the High Court of Australia or other judges and so neither also 15 the lawyers for the AEC (Australian Electoral Commission) or the AEC itself has any understanding what really can be covered by s353 of the Commonwealth Electoral Act 1918. And that to me is a very serious matter.
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Commonwealth Electoral Act 1918 20 QUOTE

353 Method of disputing elections (1) The validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns and not otherwise.

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END QUOTE

I will quote below extensively the Framers of the Constitution when they debated s75(v), and it will be clear that the Framers of the Constitution stated. In my view s353 cannot be applied in regard of a matter the Minister (in this case the Prime Minister) is required to act according to law. Likewise so where the Governor-General/Governors are required to act according to 30 law.
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There can be absolutely no doubt that a Prime Minister, Governor-General and/or Governor has a certain discretion as to the applicable time frame to call for an election and the High court of Australia would have no ordinary judicial powers to interfere with this, as it would be 35 a political decision. However, if the Prime Minister, the Governor-General and/or Governors in violation of legislative provisions issue or cause the issue of writs which are not within the provisions of the existing electoral act time frame then I submit it invokes original jurisdiction of the High Court of Australia and falls outside the ambit of s353. After all, while Parliament may deal with issues as to membership of the parliament it cannot get 40 involved in judicial matters such as in blatant disregard of legislative provisions.
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As I indicated to Mr Tony Abbott the 7 September 2013 federal election was invalid as the time table that is set out in the Commonwealth Electoral Act 1918 was not followed. The Australian Electoral Commission, noir the Prime Minister and neither the Governor-General
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and/or any Governor had any prerogative or other powers to act in violation to the constitution and/or the statute provisions by relevant electoral acts. Constitutionally the Governor-General is bound to act within the laws of the Commonwealth 5 of Australia! . Commonwealth of Australia Constitution Act 1900 (UK) QUOTE 2 Governor-General 10 A Governor-General appointed by the Queen shall be Her
Majestys representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queens pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.

15 END QUOTE As set out in my previous submission the Commonwealth Electoral Act 1918 requires a certain time table to be followed. Within that time table the Prime Minister may invoke a political decision but not beyond the application of the time frame. 20 Likewise, the Governor-General and/or the Governors are bound by their respective applicable legislative provisions to issue writs that do not offend those relevant legal provisions. If a writ is issued in violation of such legal provisions then it is not a political but a judicial matter that cannot be dealt with within s3532 of the Commonwealth Electoral Act 1918. 25 As the Framers of the Constitution made clear and also relied upon decisions by the United States Supreme Court, etc, that a writ of mandamus lies when a official fails to comply with the provisions of legislation where no discretion is permitted to be applied by the official. Again, the setting of the election dates and other dates are mere political decisions provided 30 they are and remain to be within the time frame permitted by the relevant legislation. The moment a time table is in violation of this time frame then it no longer is a political decision but encroaching upon, legislative provisions becomes a judicial matter invoking the jurisdiction of the High Court of Australia. If for example the Prime Minister were to elect a poll date within say 4 days after the writs 35 were issued and the writs provided for the poll to be held in 4 days, this so the Prime Minister can try to prevent political opponents to nominate for an election, then this would not be a political decision but falls within a failure to comply with the statutory legislative provisions as governed by the relevant electoral legislation which requires a minimum days for closure of the rolls, a minimum days for closure of the nominations, a minimum days of 40 poll to be held after the closure of the nominations, etc. It doesnt matter if the GovernorGeneral/Governor(s) issue then writs as to the 4 days the poll is to be held because neither the Governor-General and/or any Governor can validly issue writs in blatant disregard to legislative provisions. Therefore, such a failure to issue writs within the time frame provided for in the relevant legislative provisions is not a matter that falls within the ambit of s353 but 45 within the original jurisdiction of the High Court of Australia. It would be utterly and totally absurd to hold that some Prime Minister could so to say cause the Governor-General and/or Governor(s) to issue writs in violation of relevant statutory provisions and having outmanoeuvred his opponents then can claim to be lawfully elected even so the writs failed to comply with the statutory time frame. In my submission an 50 election can only be deemed valid if the writs were validly issued. If the writs were invalid in the first place then no valid election can be deemed to have eventuated. Indeed, it would be utter and sheer nonsense to allow an election to proceed, again using the example of 4 days to
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amplify the absurdity, and then later a fresh election has to be held and by this allowing the newly elected members of parliament to quickly amend legislative provisions to retrospectively abolished the time frame provided for in the relevant legislation. 5 As I already pointed out challenging the 2001 federal election, the writs were issued on 8 October 2001 but because the Special Gazette Officer was not attending to work until in the afternoon the special Gazette drafted regarding the proclamation of the dissolution of the House and the prorogue of the Parliament was in the end not published in the Gazette until 9 October 2001 at the earliest. As the writs couldnt be issued prior to the publication of the 10 proclamation then the writs were invalid. What should have eventuated is that the Governor-General ought to have published in the Gazette and amendment to the original proclamation and provided for the election to be held a week later, so that the election otherwise would still proceed within the time frame of the relevant legislative provisions. That was at the time what I pursued. 15 . What eventuated is that the lawyers of the Australian Electoral Commission from onset misdirected me. The Deputy Registrar of the High Court of Australia misdirected me. The Judges of the Federal Court of Australia misunderstood and misapplied legal provisions, the lawyer Mr Peter Hanks QC made fraudulent representation for the AEC and the High Court of 20 Australia misunderstood and misapplied legal provisions. Once this eventuated in regard of the 2001 federal election I had so to say hope in hell to challenge any future federal election in the manner that constitutionally was appropriate but refused regarding the 2001 federal election. Hence, I would be wasting my time to pursue a s75(v) before the High Court of Australia 25 regarding the invalid writs governing the 2013 federal election because it would simply go back on its incorrect precedent. This is what undermines democracy where judges as like sheep follow a precedent no matter how wrong that precedent might be.
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This also shows the lack of accountability by the AEC to comply within statutory provisions 30 and not to proceed with holding an election that is in violation to the relevant legislated time frame. Then again, as I submitted previously the original errors were created by the EEC misadvising the Prime Minister and others. 35 Hansard 4-3-1898 Constitution Convention Debates (Official Record of the Debates of the
National Australasian Convention) QUOTE Mr. BARTON.-The object of this clause is a very clear one, if I may mention it without interrupting the honorable member. In certain cases the Supreme Court would have original jurisdiction, in others appellate. If you do not specially mention this, then in cases of mandamus, prohibition, and injunction, it can only have the ordinary appellate jurisdiction, but if you mention it specially as within the judicial power, and provide for it as an original jurisdiction, then a case may be taken straight to the court instead of having to filter through another court. END QUOTE

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45 Again
Hansard 4-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. BARTON , but if you mention it specially as within the judicial power, and provide for it as an original jurisdiction, then a case may be taken straight to the court instead of having to filter through another court. END QUOTE p3 5-3-2014 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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Therefore the High Court of Australia was wrong to hold that I required to appeal to the Full court of the Federal Court of Australia regarding Marshall J decision, because no appeal is required as the High Court of Australia had all along original jurisdiction! 5 . When we have a 1918 legislation that nearly 100 later still is not properly understood by the very judges appointed to adjudicate on such matters to which it has original jurisdiction then I view we have a very serious problem as to how we appoint judges. Moreover the same applies to the Australian Electoral Commission which cannot manage a simply compliance to the 10 time frame that is provided for in the legislation. While the High Court of Australia held that there has to be a new election for the Senators of Western Australia in my view this must fail also as it is based not upon the invalid writs issued for the September 2013 federal election but upon the loss of votes, as if the writs were 15 valid. If the original writs were invalid then any subsequent writs that relies upon the original writs to be valid is also invalid. What was needed is to have the entire federal election declared invalid because none of the writs were within the statutory time frame and a complete fresh federal election to be held. . 20 Commonwealth of Australia Constitution Act 1900 (UK) QUOTE 64 Ministers of State 25
The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish. Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queens Ministers of State for the Commonwealth. Ministers to sit in Parliament After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.
END QUOTE

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35 Again:
Commonwealth of Australia Constitution Act 1900 (UK)

QUOTE 40
After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.
END QUOTE

Therefore, not a single Member of Parliament which purportedly was elected/reelected or deemed to be elected in regard of the 7 September 2013 federal election was so. 45 Meaning that Mr Tony Abbott was not validly elected and after his 3 months appointment (commission as a Prime Minister no longer is a Prime Minister. Only Senators remain validly being ministers as their term do not expire until 1 July and if they are reelected they continue to be Ministers as to the commission provided to them as such. It means we do not have at all currently a valid federal government because the essence is that the federal executives are to 50 represent the general community being in the House of Representatives. Not a single person in the House of Representatives was validly elected due to the writs being in violation to the time frame provided for in the relevant legislative provisions.
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While the Commonwealth of Australia may have so to say celebrated how nit railroaded my case regarding the 2001 federal election writs, etc, I never had any doubt that the AEC would continue to ignore the statutory time frames provided by legislation and basically we have neither had any valid democratically elected Federal Government as result. Below I have to highlight certain parts made special quotations followed by the quotation of the entire debate of that day so that anyone reading this submission can follow what was intended by the Framers of the Constitution. Also the relevant web addresses of the Authorities the Framers of the Constitution relied upon.
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I am well aware and have been for some time that there will be an ongoing blatant ignorance to what I have set out, this as it doesnt serve the purposes of those who are to consider my submissions nor to the AEC, but what ought to be understood is that after the 2001 debacle Mr John Howard constitutionally that is was not validly elected and so after 3 months he was 15 that is constitutionally no longer Prime Minister, and constitutionally neither had any constitutional position to authorise the armed invasion into Iraq. Likewise any of his fellow Ministers where their sitting in the Parliament had expired 3 months earlier.
Hansard 1-3-1898 Constitution Convention Debates

20 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 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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Perhaps some Iraqi who lost members of his family may decide to sue those former Ministers and use my writing for this that they can be personally sued, as they were not at the time 30 protected by their offices. Then it may be driven home to all that when there is a question about the validity of the writs one better sort it out appropriately and not rely upon some lawyer who is willing to make fraudulent statements to the court in aid to succeed for his client regardless of the legal consequences. 35 Obviously one has to question why all those involved in the setting of election dates, writs, etc cannot even manage what I view a 4 year primary student could accomplish. This underlines that the AEC needs to be conducting elections but not supervise it as again this is a conflict of interest and denied a proper consideration when a complaint against the AEC is made, as there is an implied bias. 40 In my view one also has to question the competence of the Electoral Commissioner for not being able to address this simple issue as to ensure time tables advised to the Prime Minister are within the scope of the legislated time frames. 45 I am sitting back patiently waiting for the VELVET REVOLUTION to commence to throw out an unelected government and reclaim our constitutional and other legal rights. The irony is that I pursue nothing more but the true meaning and application of the constitution and legislation enacted within the ambit of the constitution, yet find to be opposed by all, well so far! 50 .
Hansard 4-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. KINGSTON.-The clashing of the courts and the Executive. We should be sorry to implant in the Constitution a provision by which the federal courts would have any control over the executive p5 5-3-2014 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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acts. For the executive act of the Commonwealth the executive officers would be responsible to Parliament, which, no doubt, would see due regard is bad to all constitutional provisions. END QUOTE

5 Hansard 4-3-1898 Constitution Convention Debates (Official Record of the Debates of the
National Australasian Convention) QUOTE Mr. SYMON (South Australia).-The apprehensions just laid before the Convention are, I think, not well founded. The provision will not in my view enable the Federal High Court or any court to interfere in any way whatever with the political Executive of the Federation. The provision does not confer, and is not intended to confer, and I am sure Mr. Barton will agree with me in this-any right whatever to interfere in such cases. It merely gives a jurisdiction. END QUOTE

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15 Hansard 4-3-1898 Constitution Convention Debates (Official Record of the Debates of the
National Australasian Convention) QUOTE Sir EDWARD BRADDON.-It is a limitation of the right of the people against the Crown. Mr. SYMON.-No; it is not a limitation. All it says is that an application for mandamus or prohibition against an officer of the Commonwealth must be taken to the High Court or other of the Federal Courts. An application cannot be made to a state court, although the incident which brings the application about may happen in a particular state. The right to mandamus or prohibition is not conferred one whit more than at present. The provision merely throws within the ambit of the jurisdiction of the federal tribunal the right to determine the question. That question will be determined by the ordinary law of England-by the principles of constitutional government and the prerogatives of the Crown. There have been prohibitions and writs of mandamus granted against officers of the Crown in England, as well as in other places, where the officer has not been exercising an executive discretion, but where he has been what might be called a conduit pipe through which money ought to pass from the Treasurer or some fund to the intended recipient. If an officer has not paid that money over, application may be made for a writ of mandamus to compel him. But it is not necessary to discuss these things now. The only question is whether the proposal confers a right on anybody, no matter what the circumstances or whether the application impinges on the prerogative, to obtain a writ of mandamus or a prohibition against an officer of the Crown . The provision has not that effect at all. It is a safeguard and a limitation. It prevents an officer of the Commonwealth, whether Minister or anybody else, from being proceeded against in any state, in regard to the Commonwealth.

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Hansard 4-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE

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Mr. SYMON.-My honorable friend (Sir John Forrest) will see that the proposal before the Convention would not interfere in any way with the proceedings he has mentioned. Whatever [start page 1879] jurisdiction the state courts have now in regard to writs of mandamus and to prohibitions against officers of the state will remain. All the provision says is that writs of mandamus and prohibitions against officers of the Commonwealth shall be within the jurisdiction of the Federal Court. The point that my honorable friend. (Dr. Quick) has referred to is one worthy of the attention he has given to it. The distinction is that writs of mandamus and prohibitions are prerogative rights, and these other cases are not. Dr QUICK.-Is not habeas corpus a prerogative right? Mr. SYMON.-It is not a prerogative right.

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END QUOTE

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Hansard 4-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. ISAACS.-If it is an appellate jurisdiction it necessarily assumes there is power to make application to the state court to start with, and the provision would not derogate from that power. The judicial power is conferred in respect of certain matters. Power is given to legislate in respect of certain matters, and in all things incidental or necessary in regard thereto. Surely that covers matters such as writs of mandamus, injunctions, prohibitions, habeas corpus, writs and attachments, and everything which constitute the means of the court to carry out its decrees. Parliament has the fullest power to confer those powers. My great objection to the proposal is that it will operate as a limitation upon other provisions for judicial power. It assumes there is no, power to grant a mandamus. The latest American case I know of on the subject-it is not in Baker, though it was decided before that book was published-is the United States ex rel. Boynton v. Blaine, decided in 1891, and reported in 139 United States Reports. This case makes the matter clear, both as to what the court can do and what it cannot do in regard to mandamus. In that case we readThe writ of mandamus cannot issue in a case where its effect is to direct or control the head of an Executive department in the discharge of an executive duty, involving the exercise of judgment or discretion. Now, the converse of that is also stated:When a mere Ministerial duty is imposed upon the executive officers of the Government, that is, a service which they are bound to perform without further question, then, if they refuse, the mandamus may be issued to compel them. That power exists in the United States without any provision to the effect in the Constitution. And it would exist with us [start page 1880] without any such provision. If we go putting in limitations, we should be in exactly the same position as we would if we put a series of limitations on the trade and commerce clause. We have heard it said frequently that if we put in these limitations on the trade and commerce clause, they will operate as a means of cutting down the wide operation of that clause. We are doing exactly the same if we put this in. What the Chief Justice of the United States stated was this:The writ of mandamus cannot issue in a case where its effect is to direct or control the head of an Executive department in the discharge of an executive duty involving the exercise of judgment or discretion. U.S. ex rel., Redfeld v. Windom 137 U.S., 636, 644. When by special statute or otherwise a mere Ministerial duty is imposed upon the executive officers of the Government; that is, a service which they are bound to perform without further question, then, if they refuse, the mandamus may be issued to compel them. U.S. ex rel. Dunlap v. Black, 128, U.S. 40, 48 The writ goes to compel a party to do that which it is his duty to do without it. It confers no new authority, and the party to be coerced must have the power to perform the act. Brownsville v. Loague, 129, U.S. 493,501. What more do we want? If it is intended to go further, and put into this Constitution a power by which the court can have the right to do whatever it thinks just and proper on a mere application by way of mandamus, or prohibition, or injunction, then it is going a great deal too far. END QUOTE

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40 Now the version as recorded in the Hansard:

Judicial Powers Mandamus

HANSARD 4-3-1898 Constitution Convention Debates

45 QUOTE
Clause 73 (Extent of judicial power), Mr. BARTON (New South Wales).-I beg to movep7 5-3-2014 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

That the following sub-section he inserted as subsection (7):In which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. This, Mr. Chairman, is an amendment of substance, but the discussion of it ought not to occupy very long. It will be remembered that in the former committee this sub-section was left out. Now, I have come to the conclusion that it was scarcely wise of us to leave it out. The clause is that which StatesThat the judicial power of the Commonwealth shall extend to all matters ; and then follows a list of the matters, of which sub-section (7) was one. I proposed in the former committee to make it apply to matters in which an injunction is sought against an officer of the Commonwealth, but ultimately the sub-section was left out, on the ground that the proceeding could probably be taken without any express power being given for them. I am under the impression that we came to rather a hasty conclusion upon that matter, and that it would be advisable to restore these cases of judicial power. The question would be this: Whether without an express authority given in the Constitution to entertain such cases the High Court could grant a writ of mandamus or a prohibition or an injunction against an officer of the Commonwealth? Ordinarily speaking, any such proceeding as amounts to a proceeding against the Crown cannot be taken without an express Act to authorize it. A matter came before the Supreme Court of the United States, and there was a decision by the very high authority of Mr. Justice Marshall, which will help us to come to a conclusion whether we should retain these words or not. In the case of Marbury v. Madison, and in other cases, the following was the decision:It is only such Acts of Congress as are within the scope of their powers as conferred by the Constitution that became the supreme law of the land. Where such Acts are in violation of the Constitution, it is the province of the courts of the United States to declare the law void and refuse to execute it. The final appellate power upon all such questions is in the Supreme Court of the United States. What happened in that case was that the United States Congress, without having this right of entertaining cases of mandamus or prohibition against an officer of the United States, had passed an Act upon the subject; but, inasmuch as the Constitution did not place in the hands of the High Court the power to entertain these questions, it was held that an Act of Congress giving power to entertain them was not within the powers conferred by the Constitution, and was therefore a void Act. So that the power was not exercisable. The principle on which the whole matter rests is laid down in another case. Mr. KINGSTON.-Does it remain so still? Mr. BARTON.-So far as I am aware. I do not know that there has been an amendment of the United States Constitution to that effect. In the case of The Board of Liquidation against McComb, it was laid down that-

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A state without its consent cannot be sued by an individual; and a court cannot substitute its own discretion for that of executive officers in matters belonging to the proper jurisdiction of the latter. Then there is a statement as to the granting of a mandamus:But it has been well settled that when a plain official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person who will sustain personal injury by [start page 1876] such refusal may have a mandamus to compel its performance; and when such duty is threatened to be violated by some positive official act, any person who will sustain personal injury thereby, for which adequate compensation cannot be had at law, may have an injunction to prevent it. In such cases the writs of mandamus and injunction are somewhat correlative to each other. In either case if the officer plead the authority of an unconstitutional law for the non-performance or violation of his duty, it will not prevent the issuing of the writ. An unconstitutional law will be treated by the courts as null and void.

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The courts there declared to be null and void an unconstitutional law passed by the United States Congress to give such power. Consequently, it seems to me that it might be held here that the courts should not exercise this power, and that even the statute giving them the power would not be of any effect; and I think that, as a matter of safety, it would be well to insert these words.

Mr. SYMON.-They cannot do any harm. Mr. BARTON.-They cannot do harm, and may protect us from a great evil. Dr. QUICK (Victoria).-I think the leader of the Convention has made out a good case for the reinsertion of these words, on the ground that without the sub-section in question the clause would have the effect of limiting the particular class of writs or remedies which it will be within the power of the Federal Court to administer. But I should like to ask, for instance, would the court have power not only with regard to the three writs specified in the sub-section, but would it have power to issue writs of certiorari to bring up writs and quash them, and would it have power to issue writs of habeas corpus against an authority which might improperly imprison a citizen of the Commonwealth? It seems to me that the Supreme Court would be limited to the three classes of writs, and would not have power to issue other writs which it might be desirable that the court should issue. Mr. BARTON (New South Wales).-It is well determined that there is power to issue a writ of habeas corpus independently of words of this kind. That has been decided in America. It was decided that the right of a citizen to have the cause of his detention inquired into was clear; that the right of habeas corpus existed under the common law of England, and did not need any provision with regard to it whatever.

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Sir JOHN FORREST (Western Australia).-I should like to ask whether this power could be exercised against a Governor of a state for any act of his? Would it include the Governors of states acting under Ministerial authority? Mr. BARTON.-The Governor of the state is not an officer of the Commonwealth. Sir JOHN FORREST.-Could it apply to Ministers of state or the Governor of a state?

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Mr. BARTON.-No. Mr. GLYNN (South Australia).-Upon this subject I should like to call particular attention to an article which appeared in the Law Times on the 13th February, 1897. The article deals with this very point of the right to issue a mandamus against a Governor. It was decided in the case of Marbury v. Madison that an injunction could issue as regards the state courts, and the writer complains of this as an interference by one department of the state with another. He saysBut following the doctrine of this decision, or rather, of this extrajudicial fulmination-for the court had really nothing to decide except its own want of jurisdiction-the state judicatures have, almost without exception, asserted the power to control the executive department of their state Governments in what are called Ministerial matters which do not involve the exercise of an exclusive discretion, by sending writs of mandamus to the heads of executive departments, and even in some instances to the Governor himself. It is done, then, in America. There may be a slight distinction-one cannot answer questions of this kind on the spur of the moment-but it is a matter worth a little more consideration. We are putting it in [start page 1877] the power of the Federal Judiciary to interfere with the Federal Executive, which, in America, is complained of as an unconstitutional interference with the executive departments of the state.

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Mr. KINGSTON (South Australia).-I hope we shall not hastily adopt this amendment, but that we shall have an opportunity of further considering it. I understand that Mr. Barton proposes to give to the Federal Court a power which the authorities cited by Mr. Glynn seem to declare would extend even to the executive acts and restrain the executive action of the Federal Government. That power is not possessed in America, and to confer it here, when the states have been able to do so well without it, seems to me to be a step we should not take, except after the most mature consideration. No doubt we have had this proposal on our files, but still it is a matter of such moment that I make the suggestion of delay. p9 5-3-2014 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

Mr. BARTON.-What evil consequences can arise from it? Mr. KINGSTON.-The clashing of the courts and the Executive. We should be sorry to implant in the Constitution a provision by which the federal courts would have any control over the executive acts. For the executive act of the Commonwealth the executive officers would be responsible to Parliament, which, no doubt, would see due regard is bad to all constitutional provisions. But if we specially provide for interference by the courts in federal matters, we will be giving to the High Court of Australia a power it is unnecessary that court should possess, and which might, at various times, be exercised to the very great detriment of constitutional government. Sir JOHN FORREST.-It is not exercised in England.

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Mr. KINGSTON.-No, and why should we put it in this Constitution? We have already put it within the power of the Federal Parliament, by express provision, to legislate so as to confer the right of proceeding against the Crown. That seems to me quite sufficient. To further embody in this Constitution a declaration that the Judiciary should interfere with the Executive, or that it should be within the judicial power to do so seems to me a retrograde step which cannot be defended. Mr. SYMON (South Australia).-The apprehensions just laid before the Convention are, I think, not well founded. The provision will not in my view enable the Federal High Court or any court to interfere in any way whatever with the political Executive of the Federation. The provision does not confer, and is not intended to confer, and I am sure Mr. Barton will agree with me in this-any right whatever to interfere in such cases. It merely gives a jurisdiction. Mr. BARTON.-Hear, hear. Mr. SYMON.-Applications may be made now. Mr. BARTON.-This proposal does not confer any right. Mr. SYMON.-I was going to say that it does not confer any right. It is a safeguard, because it will prevent any application for mandamus or prohibition, both of which are prerogative rights, being made in any court except the courts invested with federal jurisdiction. The provision says that if you apply as against an officer of the CommonwealthSir JOHN FORREST.-It might be against the Governor-General of the Commonwealth. Mr. SYMON.-No, but supposing it is? I will take that position, and say that it does not give any right to get mandamus or prohibition.

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Sir JOHN FORREST.-It is optional. Mr. SYMON.-It is not optional. It merely gives a jurisdiction in certain applications. Sir JOHN FORREST.-No. Mr. SYMON.-Will my honorable friend pardon me? We have had applications in my own colony-I don't know that this has been the case in other colonies-for mandamus and prohibition directed against officers or a body constituted under the [start page 1878] Executive Government of the day, and the question has been raised whether or not that was an interference,. That was a case of seeking to proceed by mandamus for the performance of some act by the Executive through somebody to whom the control had been delegated. It is not provided that the right shall exist to get the mandamus or prohibition. Sir JOHN FORREST.-It means nothing then?

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Mr. SYMON.-Yes, it means a great deal. It means that no court, except the Federal High Court, or other courts under the Federal Constitution, shall have the power to entertain such an application. If this provision be not inserted, it follows that anybody who is discontented with something done by an officer p10 5-3-2014 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

of the Commonwealth in any state might apply to the court of the state for mandamus or prohibition. He might not get it, but be might apply for it, and there are cases in which be would get it. But if this provision be inserted the application would have to be made to the Federal Court. That, I take it, is a safeguard. Mr. ISAACS.-Is this exclusive?

Mr. SYMON.-Yes, as to the officers of the Commonwealth. Sir EDWARD BRADDON.-It is a limitation of the right of the people against the Crown. Mr. SYMON.-No; it is not a limitation. All it says is that an application for mandamus or prohibition against an officer of the Commonwealth must be taken to the High Court or other of the Federal Courts. An application cannot be made to a state court, although the incident which brings the application about may happen in a particular state. The right to mandamus or prohibition is not conferred one whit more than at present. The provision merely throws within the ambit of the jurisdiction of the federal tribunal the right to determine the question. That question will be determined by the ordinary law of England-by the principles of constitutional government and the prerogatives of the Crown. There have been prohibitions and writs of mandamus granted against officers of the Crown in England, as well as in other places, where the officer has not been exercising an executive discretion, but where he has been what might be called a conduit pipe through which money ought to pass from the Treasurer or some fund to the intended recipient. If an officer has not paid that money over, application may be made for a writ of mandamus to compel him. But it is not necessary to discuss these things now. The only question is whether the proposal confers a right on anybody, no matter what the circumstances or whether the application impinges on the prerogative, to obtain a writ of mandamus or a prohibition against an officer of the Crown . The provision has not that effect at all. It is a safeguard and a limitation. It prevents an officer of the Commonwealth, whether Minister or anybody else, from being proceeded against in any state, in regard to the Commonwealth. Sir JOHN FORREST.-I should say it would be a very cumbrous and undesirable method. Mr. SYMON.-It would be very cumbrous and undesirable if an officer of the Commonwealth could be proceeded against in a state court. Sir JOHN FORREST.-In the colonies now, I think writs of mandamus are issued to prevent officers doing certain things. Mr. BARTON.-A mandamus is issued to compel the performance of a plain official duty laid down in an Act of Parliament.

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Sir JOHN FORREST.-I know the court interferes with officers of the Crown to compel them to do certain things. Prohibitions are common enough, even in the colony I come from. Mr. SYMON.-My honorable friend (Sir John Forrest) will see that the proposal before the Convention would not interfere in any way with the proceedings he has mentioned. Whatever [start page 1879] jurisdiction the state courts have now in regard to writs of mandamus and to prohibitions against officers of the state will remain. All the provision says is that writs of mandamus and prohibitions against officers of the Commonwealth shall be within the jurisdiction of the Federal Court. The point that my honorable friend. (Dr. Quick) has referred to is one worthy of the attention he has given to it. The distinction is that writs of mandamus and prohibitions are prerogative rights, and these other cases are not. Dr QUICK.-Is not habeas corpus a prerogative right?

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Mr. SYMON.-It is not a prerogative right. Mr. ISAACS.-You will have to put all sorts of other things in the provision. Mr. SYMON.-I think not. I doubt whether it is necessary to introduce the reference to an injunctions but still there is no harm in saying that the only court having jurisdiction to deal with injunctions against officers of the Commonwealth shall be the Commonwealth Court. That was the object of the provision; at any rate, it p11 5-3-2014 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

was the sole object that the Judicial. Committee had in view in inserting it in the first instance. When the time came to, revise the provision, some honorable members seemed to doubt whether it ought to be there, and it was eliminated. Second thoughts are the best, and I think the provision ought to be inserted. Mr. ISAACS.-Where is the necessity for it?

Mr. SYMON.-The necessity is to bring all those applications for writs of mandamus, prohibition, and injunctions as against officers of the Commonwealth in the Commonwealth courts, and not to have them brought in the state courts, in which they undoubtedly ought not to be brought. Mr. ISAACS (Victoria).-The provision does not say that such an application shall not be brought in the state courts. It is not exclusive, and if the power to make such an application in the state court exists the insertion of these words cannot take that power away. Mr. BARTON.-It is an appellate jurisdiction, according to the American decision. Mr. ISAACS.-If it is an appellate jurisdiction it necessarily assumes there is power to make application to the state court to start with, and the provision would not derogate from that power. The judicial power is conferred in respect of certain matters. Power is given to legislate in respect of certain matters, and in all things incidental or necessary in regard thereto. Surely that covers matters such as writs of mandamus, injunctions, prohibitions, habeas corpus, writs and attachments, and everything which constitute the means of the court to carry out its decrees. Parliament has the fullest power to confer those powers. My great objection to the proposal is that it will operate as a limitation upon other provisions for judicial power. It assumes there is no, power to grant a mandamus. The latest American case I know of on the subject-it is not in Baker, though it was decided before that book was published-is the United States ex rel. Boynton v. Blaine, decided in 1891, and reported in 139 United States Reports. This case makes the matter clear, both as to what the court can do and what it cannot do in regard to mandamus. In that case we readThe writ of mandamus cannot issue in a case where its effect is to direct or control the head of an Executive department in the discharge of an executive duty, involving the exercise of judgment or discretion.

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Now, the converse of that is also stated:When a mere Ministerial duty is imposed upon the executive officers of the Government, that is, a service which they are bound to perform without further question, then, if they refuse, the mandamus may be issued to compel them. That power exists in the United States without any provision to the effect in the Constitution. And it would exist with us [start page 1880] without any such provision. If we go putting in limitations, we should be in exactly the same position as we would if we put a series of limitations on the trade and commerce clause. We have heard it said frequently that if we put in these limitations on the trade and commerce clause, they will operate as a means of cutting down the wide operation of that clause. We are doing exactly the same if we put this in. What the Chief Justice of the United States stated was this:The writ of mandamus cannot issue in a case where its effect is to direct or control the head of an Executive department in the discharge of an executive duty involving the exercise of judgment or discretion. U.S. ex rel., Redfeld v. Windom 137 U.S., 636, 644. When by special statute or otherwise a mere Ministerial duty is imposed upon the executive officers of the Government; that is, a service which they are bound to perform without further question, then, if they refuse, the mandamus may be issued to compel them. U.S. ex rel. Dunlap v. Black, 128, U.S. 40, 48 The writ goes to compel a party to do that which it is his duty to do without it. It confers no new authority, and the party to be coerced must have the power to perform the act. Brownsville v. Loague, 129, U.S. 493,501. What more do we want? If it is intended to go further, and put into this Constitution a power by which the court can have the right to do whatever it thinks just and proper on a mere application by way of mandamus, or prohibition, or injunction, then it is going a great deal too far. Mr. SYMON.-That you cannot prevent the application now you have just shown. p12 5-3-2014 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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Mr. ISAACS.-I think you cannot; but the court in construing such a clause would say there must have been some special reason for putting it in, and the only reason they could have for putting it in would be either to indicate that the previous power given was too small to confer it, and, therefore, would exclude other matters, or it would say that it was intended to enlarge that power and give a right to the court to act as it pleased on such application being made. Both of these positions I think we ought to avoid, therefore I would ask my honorable friends to consider very seriously before they insert this clause. It seems to be wholly unnecessary; it cannot work any good and it may work a great deal of harm. Dr. QUICK (Victoria).-I would direct the attention of the leader of the Convention to the fact that the Constitution of the United States contains a distinct provision in favour of the writ of habeas corpus. Section 9 saysThe privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it. Mr. ISAACS.-That is part of the Declaration of Rights. Dr. QUICK.-I would point out to Mr. Symon that the writ of habeas corpus is a high prerogative right, because, according to Storey, vol. 2, page 237:In England this is a high prerogative, issuing out of the Court of Queen's Bench not only in term time, but in vacation, and running in all parts of the king's dominions, for it is said the king is entitled at all times to have an account why the liberty of any of his subjects is restrained. I think that lends force to some observations I made at an earlier stage of the discussion to this effect: That if you are going to have a section enumerating writs which it is within the jurisdiction of the High Court to issue, then that enumeration ought to include all possible desirable writs. The Constitution of the United States contains a distinct recognition of the writ of habeas corpus, and the section creating the jurisdiction of the Supreme Court of the United States does not enumerate any of those writs which it is now proposed to enumerate. Mr. BARTON.-That does not provide for the writ of habeas corpus. It recognises an existing writ, and it only says that it shall not be suspended. Mr. ISAACS.-It is like a declaration of rights. Dr. QUICK.-But in the Constitution of the United States there is no section [start page 1881] such as is now proposed, limiting or defining the writs which may be issued by that court; it is left to the operation of the common law. Here it is proposed to put in a clause limiting and defining the class of writs to be issued to three, viz., mandamus, prohibition, and injunction. That, according to the great doctrine of limitation which has been so often impressed on the Convention, would exclude, by process of definition, the right to issue a writ of habeas corpus or a writ of certiorari. If there is to be a clause defining those writs, then I contend that it ought to be a complete definition and a complete enumeration embracing all possible writs for the enforcement of remedies, otherwise it is best to leave out the clause. Mr. BARTON.-The object of this clause is a very clear one, if I may mention it without interrupting the honorable member. In certain cases the Supreme Court would have original jurisdiction, in others appellate. If you do not specially mention this, then in cases of mandamus, prohibition, and injunction, it can only have the ordinary appellate jurisdiction, but if you mention it specially as within the judicial power, and provide for it as an original jurisdiction, then a case may be taken straight to the court instead of having to filter through another court. Dr. QUICK.-I have not the slightest objection to the clause provided that it is made sufficiently comprehensive to include all desirable remedies. I contend that these other remedies are equally as desirable as are those three.

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Mr. ISAACS (Victoria).-If the court, under one of these sub-sections, has the power to deal with all cases arising under the Constitution it would have the power necessarily, or certainly the Federal Parliament would p13 5-3-2014 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

have the right to give the power, to exercise its jurisdiction by way of mandamus, or injunction, or prohibition. Mr. BARTON.-In the United States it is extended only to cases of law and equity arising under the Constitution, but it was held not to confer this power as an original power. It only exists as an appellate one.

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Sir EDWARD BRADDON (Tasmania).-I should like to ask the leader of the Convention whether this would be an exclusive right? If so, there is no doubt whatever that it would limit the liberties of the people of the states to some extent. Suppose, for instance, in any state a citizen had a grievance arising out of some neglect on the part of a federal officer, say a postmaster or a telegraph operator, would it be required by this clause that the person so injured, or fancying himself so injured, would have to proceed by way of mandamus or otherwise in the federal and not in his own local court, because of the exclusive jurisdiction we vest in the Federal High Court? If it is, then that citizen would be put to very considerable inconvenience by exercising one of his privileges of citizenship. Mr. SYMON (South Australia).-There is no doubt whatever if the possibility which Sir Edward Braddon has indicated could arise, it would be a very grave blunder, and it would be a mischief which we ought at all hazards to avoid; but that would not be the position. If such a case as he put were to arise, it would not be necessary for the person who was aggrieved or considered himself aggrieved by the federal officer to proceed in the Federal High Court. He could proceed in any federal court or in any court invested with federal jurisdiction. In the United States these federal courts are distributed all over the country. There are circuit courts and there are other courts to dispense justice in all parts of the Commonwealth. That, of course, necessitates a network of courts, involving very great expense and very great complexity. With the view of avoiding all that expense and all that complexity, we have provided in the Constitution that the Parliament, instead of duplicating a lot of federal courts, may invest the courts of the states with federal jurisdiction. That is the course which will be adopted, because [start page 1882] it is not contemplated that such applications as those should come before the Federal High Court. Therefore, if any citizen of the state had a grievance against a federal officer within that state, for the redress of which he required a mandamus or a prohibition, his remedy would be in the state to which be belonged-not to the local court or the Supreme Court of the state, but to that Supreme Court as invested with federal jurisdiction. He would not be compelled to go to the Federal High Court. He would have the remedy at his own door. Whether this clause is necessary or not is a matter I do not want to enter upon again. I agree with Mr. Isaacs that the federal courts would have the jurisdiction. What we want to prevent is that state courts shall have the jurisdiction over Commonwealth officers, and the remedy, if it was called for at all, would be a remedy enforceable within the bounds of the state at the door of the person aggrieved, and he would not be compelled to go away to the Federal High Court, in which the jurisdiction is not made to reside. That court would have jurisdiction, as a matter of appeal, from the decision of the court invested with federal jurisdiction. Sir EDWARD BRADDON.-That is all right. Mr. DOBSON.-Under clause 71 the Federal Parliament can give the Federal Court in a state only such jurisdiction as it thinks fit, and it may reserve some of these prerogative writs. Mr. SYMON.-It may, and that is reaffirmed by clause 76. The whole scheme of jurisdiction is laid down here in skeleton, so to speak. The Parliament would then invest, no doubt, certain of the courts of the states with federal jurisdiction, otherwise there would be a possibility of a grave miscarriage of justice. Mr. ISAACS (Victoria).-I did not, until a moment or two ago, quite apprehend the difficulties in the minds of Mr. Barton and Mr. O'Connor, and if they will not mind following me for a minute I think I can clear away those difficulties. In the United States it is quite clear how it is held that the Supreme Court has nothing but an appellate jurisdiction in respect of mandamus, that is, as to Commonwealth officers, because the Constitution says that the only cases in which the Supreme Court shall have original jurisdiction areCases affecting ambassadors, other public Ministers, and consuls, and those in which a state shall be a party. This is not a case where a Commonwealth officer is a party at all, and, therefore, there is no original jurisdiction in any respect as to the matter of which we are talking. The Constitution goes onto sayp14 5-3-2014 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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In all the other cases before mentioned the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make. Therefore, as they have only appellate jurisdiction in regard to the merits of the case, they have only appellate jurisdiction in regard to an amendment in that case. But in our Bill we say-

In all mattersIII. In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party: IV. Between states: the High Court shall have original as well as appellate jurisdiction.

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The Parliament may confer original jurisdiction on the High Court in other matters within the judicial power. Mr. BARTON.-They would not be matters within the judicial power, and therefore would have to come into this clause. Mr. ISAACS.-Yes; but you cannot give a mandamus to the High Court in any matter which is not within the judicial power. Mr. BARTON.-We want it in the judicial power. Mr. ISAACS.-No. My honorable friend does not quite see what I mean. This is, only a remedy for carrying out the powers of the court, and you cannot put within [start page 1883] the judicial power a mere remedy where there is no right. The great distinction between the Constitution as we frame it and the Constitution of the United States is that in the United States there is no original jurisdiction at all, in a case where the Commonwealth or a person suing or being sued on behalf of the Commonwealth is a party, and therefore you can understand how a mandamus being a remedy in such a case is not within its original jurisdiction. But we put it within the original jurisdiction here, and it seems to me that a mandamus follows with it. It is only ancillary to the cape, and it seems to me to follow the main issue. Mr. WISE.-Are they ancillary to every case? Mr. ISAACS.-I should say that they are ancillary to every case where the court has jurisdiction. No doubt it is in the power of the Federal Parliament to confer original jurisdiction within the judicial power, but you cannot have a mandamus outside the judicial power. Therefore, it appears to me that it is not analogous to the case of the United States.

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Mr. BARTON (New South Wales).-I think that this matter can be put on a clear footing without much difficulty. Perhaps it will be necessary to read section 2 of Article 3 of the United States Constitution, so that we may see where the difference lies. That section saysThe judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public Ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state, claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens, or subjects. These are the jurisdictions of the High Court. Then we come to a paragraph defining the cases in which the jurisdictions are original, and those in which they are appellate. That paragraph is as follows:

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In all cams affecting ambassadors, other public Ministers, and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make.

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It is because of this limitation that the decision in the case of Marbury v. Madison appears to have been given. In other words, although jurisdiction was given as to cases arising out of the Constitution that itself was only an appellate jurisdiction. Jurisdiction was not given in arty express terms as to writs of mandamus, prohibition, or injunction. Therefore there was only an appellate jurisdiction. When the United States Congress tried to confer an original jurisdiction upon the Supreme Court of the United States, it was held that, as there was no such jurisdiction conferred by the Constitution, it could not be conferred by an Act of Congress, because such an Act was outside the Constitution. For that reason, the statute was held to be void. Mr. ISAACS.-At this juncture the difficulty arises, could the court grant a writ of mandamus except in the cases in which jurisdiction has been given?

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Mr. BARTON.-I think it would apply to any case in which, under the common law, or under any statute made for the furtherance of the duties imposed by it, you could obtain, we will say, a writ of mandamus. Similarly, it would apply in regard to writs of prohibition and injunction. I want honorable members to bear in mind that this is simply a provision conferring jurisdiction. It does not confer-and this answers the doubt of the Right Hon. Sir Edward Braddon-upon any person any new right. It does not give anybody a right to pursue in any way an officer of the Commonwealth, [start page 1884] except such right as arises out of the known principles of law, which go to this extent: I will take the writ of mandamus as an illustration. Where there is a duty imposed by an Act of Parliament, and that duty has to be performed, not merely in relation to the Crown, but also for the benefit of the public, any person aggrieved by the non-performance of it may obtain a writ of mandamus. In the same way, where it is proposed to put into operation against him some process of the law, he, as a subject, having the right to have this process of law properly exercised, can obtain an injunction against its wrongful exercise. Those are the class of cases to which these provisions are intended to apply. If you did not put this power into the Constitution the result would be that it could only be exercised upon an appeal from another court. The position under this Constitution will be somewhat analogous to the position under the United States Constitution. In clause 73 we enumerate the judicial powers. We propose to include among them, as we did before, this power to decide cases in which writs of mandamus, prohibition, and injunction are applied for. Then, we propose to put into clause 77-and I think the honorable and learned member (Mr. Symon) will hear me out in this-the same words as to these writs. This will give the High Court original jurisdiction, as well as appellate jurisdiction, in these cases, so that when a person wishes to obtain the performance of a clear statutory duty, or to restrain an officer of the Commonwealth from going beyond his duty, or to restrain him in the performance of some statutory duty from doing some wrong, he can obtain a writ of mandamus, a writ of prohibition, or a writ of injunction. Mr. ISAACS.-Would not that be so under sub-section (3) of clause 77 in any case? Mr. BARTON.-I do not think that it would. My honorable and learned friend has argued that a provision relating to all matters in which the Commonwealth or a person suing or being sued upon behalf of the Commonwealth, or to which the Commonwealth is a party, would cover the case, but I do not think that it would. It is a grave question whether the expression "a person suing or being stied on behalf of the Commonwealth" does not mean a person who is being simply impleaded in an action of law. That is more strongly shown by reference to the other words of the clause, because original jurisdiction is given in cases to which the Commonwealth is a party, but only in respect to a person representing the Commonwealth, that is, a person suing or being sued upon its behalf. I think there is the very gravest doubt as to whether the words in subsection (3) of clause 77 would be sufficient authorization for an original jurisdiction. Now I come to the point raised by the honorable and learned member (Dr. Quick), that this does not specify all the writs in respect to which jurisdiction may be exercised. But it was not intended to do that. A writ of habeas corpus is a common law writ, in regard to which you have no trouble as to its exercise. It is one of the rights which the subject carries with him so long as he is within British territory, and there is no necessity to put enabling words as to that writ into the Constitution. Even in America, where they had acted up to the time of the framing of the Constitution under the rules of the common law of England, and where they still do so except where they have statutory provisions limiting or modifying or taking away its operation-even there it was not held to be necessary to place any provision in the Constitution to insure that the writ of habeas p16 5-3-2014 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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corpus should run. All that was held necessary was to protect the writ of habeas corpus by preventing it from being suspended under the circumstances mentioned in section 9. So we come back to [start page 1885] this position. What we want here in the case of these three writs, which are specially in their nature addressed to persons who may be carrying out the provisions of the statute law, is to enable proceedings against those persons to be taken directly in the High Court, instead of its being necessary to go first to another court and then to proceed on appeal to the High Court. If we do not insert a provision in regard to this matter into this clause, then in such cases application will have to be made first to some court other than the High Court, because you have not given the High Court jurisdiction. Mr. ISAACS.-But you have empowered Parliament to confer it.

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Mr. BARTON.-Yes; but application will have to be made to another court first, because you have not given the High Court original jurisdiction. The matter can only come before the High Court after it has filtered through another court, and by way of appeal. Is it not right, however, that the subject should be empowered, when he has a right to one of these writs against an officer of the Commonwealth, to go to the High Court at once-to the court which protects the Constitution-to obtain his rights under the Constitution? That is the sole question. The Premier of Tasmania seemed to have great doubt as to whether this provision did not confer rights. I would, therefore, point out to him that it does not enable the High Court to grant a prohibition or a mandamus or an injunction against an officer of the Commonwealth unless the law already enables that to be done. The object of it is to make sure that where a person has a right to ask for any of these writs he shall be enabled to go at once to the High Court, instead of having his process filtered through two or more courts. I think that the honorable and learned member (Dr. Quick) will see why other writs are not enumerated. This provision is applicable to those three special classes of cases in which public officers can be dealt with, and in which it is necessary that they should be dealt with, so that the High Court may exercise its function of protecting the subject against any violation of the Constitution, or of any law made under the Constitution. New sub-section (7) was agreed to. Mr. BARTON (New South Wales).-I beg to moveThat the following words be added to sub-section(8):"Or between residents of different states, or between a state and a resident of another state." The amendment was agreed to.

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The clause, as amended, was agreed to. END QUOTE

Authorities referred to: 35 Turner v. The Bank of North America http://www.law.cornell.edu/supremecourt/text/4/8

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Marbury v. Madison, Law Times on the 13th February, 1897 http://www.law.cornell.edu/wex/marbury_v._madison_1803

http://www.law.cornell.edu/wex/marbury_v._madison_1803
The Board of Liquidation V. McComb

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Board of Liquidation v. McComb, 92 U. S. 531, 541, 23 L. ed. 623, 628,

United States ex rel. Boynton v. Blaine, decided in 1891, , and reported in 139 United States Reports http://www.law.cornell.edu/supremecourt/text/139/306

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p17 5-3-2014 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

U.S. ex rel., Redfeld v. Windom 137 U.S., 636, 644. http://www.law.cornell.edu/supremecourt/text/137/636

U.S. ex rel. Dunlap v. Black, 128, U.S. 40, 48

http://www.law.cornell.edu/supremecourt/text/128/40

Brownsville v. Loague, 129, U.S. 493,501.

http://www.law.cornell.edu/supremecourt/text/129/493 10
HANSARD 17-3-1898 Constitution Convention Debates QUOTE Mr. BARTON.- Having provided in that way for a free Constitution, we have provided for an Executive which is charged with the duty of maintaining the provisions of that Constitution; and, therefore, it can only act as the agents of the people. END QUOTE

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Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958). 20 "No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it." The constitutional theory is that we the people are the sovereigns, the state and federal officials only our 25 agents."
This submission is not intended and neither must be perceived to refer to matter in any order of priority or to all details/issues. 30 I look forwards to your details response, if any courtesy will eventuate as such. Awaiting your response, G. H. Schorel-Hlavka O.W.B. (Friends call me Gerrit)

MAY JUSTICE ALWAYS PREVAIL

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Our name is our motto!)

p18 5-3-2014 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