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WITHOUT PREJUDICE Mr George Brandis Attorney-General senator.brandis@aph.gov.au 26-3-2014 5 Cc: Mr Tony Abbott MP
WITHOUT PREJUDICE Mr George Brandis Attorney-General senator.brandis@aph.gov.au 26-3-2014 5 Cc: Mr Tony Abbott MP

WITHOUT PREJUDICE

Mr George Brandis Attorney-General

26-3-2014

5

Cc:

Mr Tony Abbott MP

 

Mr Ken Wyatt C/o senator.brandis@aph.gov.au

 

Ref: 20140326-G. H .Schorel-Hlavka O.W.B. to Mr George Brandis Attorney-General Re s18C-etc

 

Mr Brandis,

 

I watched what you stated on ABC on Tuesday 25-3-2014, regarding the deletion of

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words of s18C and as a self educated CONSTITUTIONALIST I can only agree with this. I found your explanation very clear. I view however matters are not as simple as that.

As you are aware the States have legislated as to racial discrimination, but despite of this I have never feared any legislation as an Author of books in the INSPECTOR-RIKATI® series on certain constitutional and other legal issues, or as a blogger.

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Citizens are entitled to know which law is applicable and not that there is a confusion as to what they can say under Commonwealth legislative provisions but not as to State legislative provisions.

Hansard 19-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention)

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QUOTE

 

Mr. CARRUTHERS:

 

This is a Constitution which the unlettered people of the community ought to be able to understand. END QUOTE

.

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Hansard 22-2-1898 Constitution Convention Debates

QUOTE

Mr. SYMON (South Australia).-

That this is not like an Act of Parliament which we are passing. It is not in the position which Mr. Barton has described, of choosing or setting up a code of laws to interpret the common law of England. This Constitution we are framing is not yet passed. It has to be handed over not to a Convention

30

similar to this, not to a small select body of legislators, but to the whole body of the people for their acceptance or rejection. It is the whole body of the people whose understanding you have to bring to bear upon it, and it is the whole body of the people, the more or less instructed body of the people, who have to understand clearly everything in the Constitution, which affects them for weal or woe during the whole time of the existence of this Commonwealth. We cannot have on the platform, when this

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Constitution is commended to the people, lawyers on both sides, drawing subtle distinctions, which may or may not be appreciated by the people. END QUOTE

.

Hansard 22-9-1897 Constitution Convention Debates

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QUOTE The Hon. R.E. O'CONNOR (New South Wales)[3.18]: The moment the commonwealth exercises the power, the states must retire from that field of legislation. END QUOTE

.

45

Hansard 30-3-1897 Constitution Convention Debates

QUOTE

Mr. REID:

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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

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complication of the kind. END QUOTE

.

Hansard 30-3-1897 Constitution Convention Debates QUOTE

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The Hon. R.E. O'CONNOR (New South Wales)[3.18]: We ought to be careful not to load the 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 exercise that power. The moment the commonwealth exercises the power, the states must retire from

15

that field of legislation. END QUOTE

.

Hansard 2-3-1898 Constitution Convention Debates QUOTE

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Mr. OCONNOR.-Directly it is exercised it becomes an exclusive power, and there is no doubt that it will be exercised. END QUOTE

Therefore, you need to consider if the legislation is in such a manner that it is for an unlettered personto be understood without needing a lawyer to explain give his/her opinion which doesnt

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stand for what the law actually is.

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.

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END QUOTE

HANSARD18-2-1898 Constitution Convention Debates

QUOTE

Mr. ISAACS.-

The right of a citizen of this great country, protected by the implied guarantees of its Constitution,

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END QUOTE

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

40

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 those principles are enforced, will all have been the work of Australians. END QUOTE HANSARD 17-3-1898 Constitution Convention Debates

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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 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.

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END QUOTE

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

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people of Australia a new charter of union and liberty; we are about to commit this new Magna Charta for their acceptance and confirmation, and I can conceive of nothing of greater magnitude in the whole history of the peoples of the world than this question upon which we are about to invite the peoples of Australia to 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.

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END QUOTE

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Political liberty clearly is what I understood you were about. However, my view is that the Racial Discrimination Act 1975 itself is unconstitutional. While I understand that the High court of Australia in the Bjelke-Pieterson case held that the Racial discrimination act was within external powers, it must be understood that the High Court of Australia at the time made rulings in

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disregard of the Hansard records, it then specifically refused to be allowed to be used in litigation, whereas since the Tasmania Dam case it now pursues to use it. As such, the past judicial decisions may have to be revisited as to if it is correct within our constitutional provisions.

However,

the judiciary has no power to amend or modernize the Constitution to give effect to what

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Judges think is in the best public interest. The function of the judiciary, including the function of this Court, is to give effect to the intention of the makers of the Constitution as evinced by the terms in which they expressed that intention. That necessarily means that decisions, taken almost a century ago by people long dead, bind the people of Australia today even in cases where most people agree that those decisions are out of touch with the present needs of Australian society.”

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":

The starting point for a principled interpretation of the Constitution is the search for the intention of its

makers"

Gaudron J (Wakim, HCA27\99)

"

But … in the interpretation of the Constitution the connotation or connotations of its words should

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remain constant. We are not to give words a meaning different from any meaning which they could have

borne in 1900. Law is to be accommodated to changing facts. It is not to be changed as language changes.

"

 

Windeyer J (Ex parte Professional Engineers' Association)

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Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi [1999] HCA 27 (17 June 1999) Last Updated: 22 September 2000 QUOTE Constitutional interpretation The starting point for a principled interpretation of the Constitution is the search for the intention of

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its makers[51]. That does not mean a search for their subjective beliefs, hopes or expectations. Constitutional interpretation is not a search for the mental states of those who made, or for that matter approved or enacted, the Constitution. The intention of its makers can only be deduced from the words that they used in the historical context in which they used them[52]. In a paper on constitutional interpretation, presented at Fordham University in 1996, Professor Ronald Dworkin argued, correctly

35

in my opinion[53]:

 
 

"We must begin, in my view, by asking what - on the best evidence available - the authors of the text in question intended to say. That is an exercise in what I have called constructive interpretation[54]. It does not mean peeking inside the skulls of people dead for centuries. It means trying to make the best sense we can of an historical event - someone, or a social group

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with particular responsibilities, speaking or writing in a particular way on a particular occasion."

 

END QUOTE

 

We therefore should consider the intentions of the Framers of the Constitution:

HANSARD 28-1-1898 Constitution Convention Debates

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QUOTE That the words "The affairs of," first line sub-section (1),be omitted. [start page 253] Mr. BARTON.-I have no objection to taking it that way. Mr. DEAKIN.-I think it must now be perfectly clear that what we desire is, not to deprive, the

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Federal Parliament of its paramount power in every respect in regard to any dealings with the races referred to, but to leave to the several states, until the Federal Parliament legislates upon the alien question, the operation of all legislation already passed, and the the right to legislate in the future until the Federal Parliament thinks fit to supersede it by specific legislation. For instance, the Federal Parliament might well pass a general law applying to these races without making any reference to their

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employment as miners or hawkers, and any state legislation in regard to those occupations which might be in existence would continue, or now legislation regarding them might be introduced. When the Federal Parliament chooses to make regulations in regard to the employment of aliens as hawkers and miners, the state legislation will cease to have effect. The honorable and learned member (Mr.

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Symon) said-Hand to the Federal Parliament all powers connected with aliens, and allow them to give back certain powers to the state." We say-Instead of taking these powers from the states and giving them back again, let us leave them with the states until the Federal Parliament chooses to assume them."

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Sir JOHN DOWNER (South Australia).-I do not think it makes any substantial difference whether you put this provision in clause 52, or leave it where it is. The Federal Parliament has first to say what races it is: necessary to make regulations about. Mr. ISAACS.-That is giving a rather limited meaning to the words "deemed necessary." Sir JOHN DOWNER.-There must be some body which deems it necessary, and the only body to

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which the words can refer is the Commonwealth Parliament. What very substantial difference does it make whether we leave the provision as it stands or put it into clause 52? True, if the provision is left where it stands, the Federal Parliament will have exclusive power in connexion with this matter; but that body will only have exclusive power when it chooses to exercise it. It is only when the Federal Parliament has passed legislation dealing with the people about whom regulations are to be made that

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this exclusive power will have arisen. The only matter for the committee to consider is as to the expediency of leaving the provision here or of putting; it into clause 52. Wherever it is, it will, upon the passing of the Constitution, operate as an intimation to the Federal Parliament that this is a matter of national import, upon which they are expected to legislate. Once within the Commonwealth citizens should be able to go freely from one state to another; there should be no lines of differentiation

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between states. If races are admitted into one state, and are not free to go into another, the inconveniences of administration, especially on the borders, will be very great. It has been thought well that there should be a uniform law throughout Australia in respect to the citizens of Australia, and it was considered that this provision should be put into a separate clause giving exclusive powers, in order to emphasize the fact that the Federal Parliament should legislate upon this matter. In my

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opinion, whether you put the provision into clause 52, or leave it where it is, its substantial legislative effect will be the same. As to the meaning of the words, "the affairs of the people of any race with respect to whom it is deemed necessary," in my opinion it is the Federal Parliament who must deem it necessary. Mr. ISAACS.-What is the meaning of the statement that the state cannot legislate for the whole

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general community? Mr. BARTON.-That is by way of description. A law made by the state does not apply to the general community. [start page 254] Sir JOHN DOWNER.-My argument is that deemed necessary means deemed necessary by the

35

Parliament of the Commonwealth. Assuming that I am right, I ask to whom does this clause extend? The persons named by an Act of the Commonwealth Parliament. When the Commonwealth Parliament deals with this subject, its legislation will over-ride any local legislation, no matter whether you put the provision in clause 52 or leave it in clause 53. What the representatives from Victoria want is exactly what is provided here, but the provision is put where it is for the purposes of extra emphasis,

40

and to indicate to the Federal Parliament that they are expected to make over-riding and general legislation in regard to this vital question. I think honorable members are, almost without exception, strongly of opinion that there should be federal legislation upon this matter, and I therefore believe that it will meet the wishes of honorable members if we leave the provision exactly where it is, as a means of hurrying up the Federal Parliament and causing it to legislate in this matter as soon as

45

possible. END QUOTE

.

Hansard 28-1-1898 Constitution Convention Debates

QUOTE

Dr. QUICK (Victoria).-

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There can be no doubt as to the desirability of conferring unlimited powers on the Federal Parliament to prevent the introduction of foreign coloured races.

END QUOTE

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Hansard 27-1-1898 Constitution Convention Debates QUOTE

Mr. BARTON.-We are going to suggest that it should read as follows:-

the people of any race for whom it is deemed necessary to make any laws not applicable to the general community; but so that this power shall not extend to authorize legislation with respect to the affairs of the aboriginal race in any state.

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Mr. ISAACS.-My observations were extended much further than that. The term general community" I understand to mean the general community of the whole Commonwealth. If it means the general community of the whole Commonwealth, I do not see the meaning of saying that the Parliament of the Commonwealth shall have the exclusive authority to do that, because any single state would have the right to

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do it under any circumstances. If it means less than that-if it means the general community of a state-I do not see why it should not be left to the state. We should be placed in a very awkward position indeed if any particular state is forbidden to pass any distinctive legislation in certain well-known instances. For instance, if Victoria should choose to enact that Afghans shall only get hawkers' licences under certain conditions which are not [start page 228] applicable to Europeans she may be debarred by this sub-section from doing so. I do

10

not know how it will affect our factory law in regard to the Chinese which does not operate beyond the confines of Victoria at all.

Sir EDWARD BRADDON.-Why single out the Afghans?

Mr. ISAACS.-If any other race possess the same characteristic as the Afghans I will put them in the same class. At all events, the expression general community" means the whole community of the Commonwealth.

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I do not think that this has any application. If it is to have any application at all, it seems to me to be intended to debar the state from passing legislation-necessary legislation, but purely confined to that state. I do not think that that sub-section ought to be there at all if that is the meaning of it.

Mr. BARTON (New South Wales).-I think the original intention of this sub-section was to deal with the affairs of such persons of other races-what are generally called inferior races, though I do not know

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with how much warrant sometimes-who may be in the Commonwealth at the time it is brought into existence, or who may under the laws of the Commonwealth regulating aliens come into it. We have made the dealing with aliens, which includes a certain degree of coloured immigration, a power of the Commonwealth, and we have made the dealing with immigration a power of the Commonwealth, so that all those of the races who come into the community after the establishment of the Commonwealth

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will not only enter subject to laws made in respect to their immigration, but will remain subject to any laws which the Commonwealth may specially devise for them. There is no reason why the Commonwealth should not have power to devise such laws.

Sir GEORGE TURNER.-An exclusive power?

Mr. BARTON.-It ought to have an exclusive power to devise such laws.

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Sir GEORGE TURNER.-If it does not exercise it can the state exercise it?

Mr. BARTON.-Once the Commonwealth legislates with reference to the question of aliens and immigration, its legislation displaces the state law.

END QUOTE

As was clear the Framers of the constitution held that legislation cannot be against the general

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community, and clearly the Racial Discrimination Act seeks to do so. As such, there is a clear conflict as to the intent of ss51(xxvi) and the High Court of Australia claimed powers within external affairs powers.

In my view there is no evidence that racial discrimination is within external affairs powers and as racial discrimination legislation is in conflict with sss51(xxvi) then it cannot stand.

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Then we have to consider what I view the unconstitutional Member of Parliament for Hasluck (WA) Mr Ken Wyatt, because he is an Aboriginal.

Now before you get me wrongly let make it clear that when I was a single parent with my daughter Gabrielle (then 2 years old) I introduced her to Aboriginals and the elder of the St Kilda (Melbourne group) and I became friends. He was very upset when the local paper referred to

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them as homeless, as he made clear to me he had a flat in Elwood but preferred to sleep with other Aboriginals under the tree. (I used to get firewood for them).

We moved to Berriwillock near Swan Hill and then discovered that Gabrielles first cousin (their

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mothers are sisters) actually was married to an aboriginal and had 5 children. Hence my daughter was the aunty of 5 Aboriginal descent children.

I gained the view from them that they just wanted to be left in peace and not bothered about being Aboriginals or not as that was for them their own business. They disliked to be singled out

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for being Aboriginals. For sure they were proud on their heritage but didnt want any fuss about it, one way or another. And, that really is what the Framers of the Constitution held also.

Hansard 2-3-1898 Constitution Convention Debates QUOTE Clause 120-In reckoning the numbers of the people of a State or other part of the Commonwealth aboriginal

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natives shall not be counted. Dr. COCKBURN: As a general principle I think this is quite right. But in this colony, and I suppose in some of the other colonies, there are a number of natives who are on the rolls, and they ought not to be debarred from voting. Mr. DEAKIN: This only determines the number of your representatives, and the aboriginal population

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is too small to affect that in the least degree. Mr. BARTON: It is only for the purpose of determining the quota. Dr. COCKBURN: Is that perfectly clear? Even then, as a matter of principle, they ought not to be deducted. Mr. O'CONNOR: The amendment you have carried already preserves their votes.

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Dr. COCKBURN: I think these natives ought to be preserved as component parts in reckoning up the people. I can point out one place where 100 or 200 of these aboriginals vote. END QUOTE

This debate referred to what is now s41, where when an Aboriginal had been granted by a Colony/State for State citizenship including franchise then under Commonwealth legislation they

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were automatically entitled to vote in federal elections. What however the Federal Parliament did was to introduce unconstitutionally white onlyvoting and Aboriginals were thereby wrongly denied their franchise rights. Instead of fighting this as a constitutional matter they went to seek to include Aboriginals in ss51(xxvi) which was a con-job referendum, in that you cannot give Aboriginals a right to vote or citizenship that they already were entitled upon if so provided by a

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State. Earlier, prior to 1967, the Federal government was warned that ss51(xxvi) was not the right vehicle as too much baggage was with it. Ss51(xxvi) was to DISCRIMINATEagainst a race and hence therefore Aboriginals cannot be deemed to be any difference for them. The constitution must be constant and applicable as such and not that ss51(xxvi) applies to some races in some manner but for Aboriginals totally differently. Nor can it be held that the

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application of ss51 somehow changed in regard of all races when aboriginals were included because that clearly was never put to the voters in the referendum.

Hansard 27-1-1898 Constitution Convention Debates QUOTE

Mr. TRENWITH (Victoria).-I respectfully submit in connexion with this clause that the

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necessity for legislation in regard to aliens differs in the various colonies, and to give to the Federal Parliament exclusive powers to legislate would produce inconvenience. This is obviously so, for the reason that what is necessary in one state in connexion with the treatment of aliens may be altogether unnecessary and perhaps inconvenient in another state. Assuming that such contingencies may arise, any uniform legislation must work to

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the detriment of some state; whereas if, as suggested by Sir George Turner, it is made optional on the part of the Federal Parliament, wherever any great pressure arises, or a necessity for uniform legislation occurs, to legislate, then the Federal Parliament will undoubtedly take the question up and by its act achieve exclusive control in that connexion so far as it chooses to legislate.

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END QUOTE

Therefore, once legislation is enacted against Aboriginals, it must be against all people of that race, not just some of them, hence the Northern Territory Intervention Act is unconstitutional.

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Also a particular legislation must be enacted against one race. Hence the Aboriginal and Torres Strait Islanders act is unconstitutional as it relates to more than one race.

As the Aboriginals are subjected to a disability then they AUTOMATICALLY have lost citizenship and so the franchise and cannot be an elector let alone a Member of Parliament.

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Therefore I view Mr Ken Wyatt is unconstitutionally in Parliament and I understand that Nova Peris neither can be deemed to be validly elected to the Parliament, because she is an aboriginal.

I was born and grew up in The Netherlands and racism wasnt my cup of tea. Personally I resent racism but as a CONSTITUTIONALIST I cannot have my personal views interfering with what is the true meaning and application of the constitution.

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While I am aware of the Andrew Bolt case, I view that the court failed to take appropriately into consideration the true facts, such as the political liberty enshrined in the constitution. I would agree with you that no one can be certain about facts when making a political statement and even the courts themselves have at times failed to consider matters appropriately, hence may successful appeals and lets not forget the courts acknowledge this:

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QUOTE Duncan v Queensland (1916) 22 CLR 556, 582 (per Griffith C.J.)

That case (a previous decision of the High Court, Foggit, Jones & Co v NSW (1915) 21 CLR

357) was very briefly, and I regret to say, insufficiently argued and considered on the last

day of the Sydney sitting

The arguments which now commend themselves to me as

conclusive did not find entrance to my mind. In my judgment that case was wrongly decided,

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and should be overruled. END QUOTE

I have also questioned over the years how on earth someone can claim to be an Aboriginal? What is an Aboriginal? I understand that in Tasmania they tried to do a DNA test and found it cannot establish who is an Aboriginal by this.

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Then we have that the Framers of the Constitution themselves acknowledged that Aboriginals resided also in Asia. So, can we assume that the Aboriginal and Torres Strait islanders act refers to Aboriginals in other jurisdictions, or that when they come to Australia being it by visa or to reside here permanently they somehow are also then within this Act?

There was this case on appeal to the Supreme Court of Victoria where a man appealed having

30

been convicted for being an Aboriginal in a hotel where Aboriginals were not permitted to be. The Supreme Court of Victoria then made it clear, the man may talk and look like an Aboriginal but the Court below failed to establish that this man actually was an Aboriginal.

And this then turns us back to the issue how do you establish a person is an aboriginal?

When former prime minister Kevin Rudd made his apology to the so called STOLEN

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GENERATION on behalf also of the federal parliament, albeit a prime minister has no such constitutional position, I then immediately criticised him for making an apology to what he may deem Aboriginals whereas many children were in fact of mixed races. So, is the apology then only to those of Aboriginal descent but not if they were of other races. Why only of Aboriginal descent when others likewise had children removed from them. In my view an apology should be

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to all children wrongly removed but only for so far the commonwealth itself was involved. However, A Prime Minister is for the executives and cannot speak for or on behalf of the Parliament.

Many people born in Australia hoilds to be Aboriginals bewcause they are natives born in the Commonwealth of Australia. Why indeed should the colour of skin make a difference. I recall

45

an incident of a man who was born in Europe and by the time he was about 55 somehow he was suddenly able to access Aboriginal funding facilities because his de facto wife he then got involved with was of Aboriginal descent. But years later after they split up it was the end of the Aboriginal funding.

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.

Did you ever realise how land rights claims was devastating some farmers? The Aboriginals could make absurd land claims and get funding for it whereas the farmer, despite being 5 th generation farmer had to incur huge cost. There was even a claim as to a beach because some

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Aboriginals claimed that their forefathers were watching ships and so they land claim.

Hansard 2-3-1898 Constitution Convention Debates QUOTE

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

10

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

15

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

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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

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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?

 

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

30

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

I am not aware that the constitution provides for a Constitution Committee, a body of handpicked

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advisors, can somehow amend the true meaning and application of the constitution. Hence, the issue of citizenshipcannot be a nationality as we are and remain to be under a British constitution. There is a lot more to this as my books have set out extensively.

HANSARD 10-3-1898 Constitution Convention Debates

QUOTE

Mr. BARTON (New South Wales).-

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Then, again, there is the prerogative right to declare war and peace, an adjunct of which it is that the

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Queen herself, or her representative, where Her Majesty is not present, holds that prerogative. No one would ever dream of saying that the Queen would declare war or peace without the advice of a responsible Minister. END QUOTE

HANSARD 6-3-1891 Constitution Convention Debates QUOTE

Mr. DEAKIN: We can make an exception in favour of imperial interests. We have no desire to interfere with the imperial prerogative in matters of war and peace!

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END QUOTE

It would be beyond this limited correspondence to deal with all relevant issues regarding discrimination issues but safe to say that unless you have the overall understanding and

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comprehension how the constitution really applies it only may make you so to say a fool to put in place any legislation or to maintain any legislation that a person like myself can defy as a CONSTITUTIONALIST for being unconstitutional.

One may have to consider that as a CONSTITUTIONALIST I pursued that compulsory voting

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was unconstitutional as it offend my political liberty”” as enshrined in the constitution. After a 5 year epic legal battle I comprehensively defeated the Commonwealth on 19 July 2006 in the County Court of Victoria on this matter. While I noticed that recently the High Court of Australia in another case upheld compulsory voting, I checked the transcript and view the lawyers failed to raise issues I had successfully raised. As the Court can only hand down a judgment upon what is

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placed before it then the High Court of Australia decision must be seen as such to reflect what was placed before the court and not otherwise.

Aboriginals voted in the first federal election, for so far they had obtained Colonial/State franchise and so within s41 were entitled to vote. Hence the ss51(xxvi) con-job referendum couldnt give them any rights they already possessed but was wrongly denied. The con-job

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referendum wrongly pursued to benefit Aboriginals failing to make clear that you cannot have one section to have a different meaning for Aboriginals then for other races. Again, the referendum was not to my understanding as to amend the true meaning and application in regard of other races already within the concept of this section prior to the amendment sought. Nor can it be argued that the voters expected the true meaning and application to be amended regarding

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other races where this clearly wasnt put to them.

Within the provisions of the constitution anyone not entitled to sit in the Parliament can face a fine applicable for every day this person remains to sit in the Parliament!

What I view should be done is to have a real investigation as to what is intended and what is permissible within the true meaning and application of the constitution and how to address

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matters appropriately.

In my view all those land rights concessions by the Commonwealth may in the end be reverted as having been unconstitutional as the High Court of Australia MABO decision I view was to some extend unconstitutional. The federation was created upon certain legal principles and as set out from onset that is upon which the electors voted to federate. One of them was:

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Hansard 31-3-1891 Constitution Convention Debates

QUOTE

Sir SAMUEL GRIFFITH:

The exercise within the commonwealth, at the request or with the concurrence of the parliaments of all the states concerned, of any legislative powers with respect to the affairs of the territory of the commonwealth, or any part of it, which can at the date of the establishment of this constitution be exercised

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only by the Parliament of the United Kingdom or by the Federal Council of Australasia, but always subject to the provisions of this constitution.

We are aware, sir, that there are many things now upon which the legislatures and governments of the several Australian colonies may agree, and upon which they may desire to see a law established; but we are obliged, if we want that law made, to go to the Parliament of the United Kingdom, and ask them to be good

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enough to make the law for us; and when it is made we will obey it. I contend, for myself, as I have had an opportunity of saying before, that after the federal parliament is established anything which the legislatures of Australia want done in the way of legislation should be done within Australia, and then parliament of the commonwealth should have that power. It is not proposed by this provision to enable the parliament of the commonwealth to interfere with the state legislatures; but only, when the state legislatures agree in

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requesting such legislation, to pass it, so that there shall be no longer any necessity to have recourse to a parliament beyond our own shores when once this constitution has been passed by the Parliament of the United Kingdom. With respect to these subjects, it is not proposed to give the parliament of the commonwealth exclusive jurisdiction; they will have paramount jurisdiction; but it is proposed that, until they exercise those powers, the existing laws shall remain [start page 525] in force, and that, until they choose to

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make laws to the contrary, the state legislatures may go on exercising their existing powers. It is only when the federal parliament comes to the conclusion that it is necessary to make laws on those matters that

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the powers of the states will be excluded, and then only to the extent to which the federal legislature chooses to exercise its functions. In addition to the powers to be exercised in that way, not interfering with the existing rights of states until the federal legislature thinks it necessary to do so, it is proposed to give some exclusive powers to the legislature of the commonwealth. One of them is to deal with the affairs of people

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of any race with respect to whom it is deemed necessary to make special laws not applicable to the general community; but so that this power shall not extend to authorise legislation with respect to the aboriginal native race in Australia and the Maori race in New Zealand.

END QUOTE

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Hansard 10-3-1891 Constitution Convention Debates

QUOTE

Mr. DIBBS:

We, in Australia-federated Australia, I may take it, because the matter is one which applies to the whole-have no enemies within our borders; we have no Indians to dispute with us the possession of the soil; we have no powerful Maori race, to fight, as was once the case in New Zealand, for the territory

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the right to which belonged to the Maoris themselves. We have no enemies within, and the only thing we have to fear is the possibility of any assault on the mother country by her enemies from without, unless indeed the creation of a standing army proves a menace to the people of Australia by the existence of an armed force for unlawful purposes. This question of the creation of a military force is one of the blots upon these resolutions. We want no military force within New South Wales. All we want to do

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is to make every man who is either a native of the soil, or one of ourselves by reason of his taking up his residence amongst us, prepare to resist possible invasion from without.

END QUOTE

And now also consider the following quotations:

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Hansard 8-3-1898 Constitution Convention Debates QUOTE Mr. HOLDER.-

Surely there would be at least one representative out of the whole Senate and one member of the House of Representatives, who would have individuality enough, and strength enough, to get up and challenge the order of any particular measure which might be disorderly under this clause of the Constitution.

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Mr. ISAACS.-They would not all sit on the same side of the House.

 

Mr. HOLDER.-I should think not. They would not all be Ministerialists, or all members of the Opposition, or all members of any particular party; and I cannot believe that any Bill which contained anything objectionable at all could pass through both Houses of the Federal Legislature without finding some one member of either of the two Houses who would rise to a point of order, and have such a Bill laid aside of

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necessity as being out of order under this provision. END QUOTE

Hansard 8-3-1898 Constitution Convention Debates QUOTE

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Mr. CARRUTHERS (New South Wales).-It is worth while considering the stages that a proposed law has to go through, and the opportunity afforded to a member of either House or a member of the Executive to call attention to any infraction or infringement of the Constitution. It does not require a majority of the members of the House of Representatives to insist that the Constitution shall be obeyed in the matter of procedure; it only requires one solitary member to rise to a point of order, and the

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Speaker has to give a legal interpretation of the rules of procedure. It only requires one member of the Senate to call the attention of the President to the fact that a Bill is introduced contrary to the Constitution for that proposed law to be ruled out of order. It does not require a majority of the states to insist that the Constitution shall be obeyed, because a majority of the states cannot by resolution infringe the Constitution. Neither House could pass the standing order which would give the majority

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power to dissent from the Speaker's or President's ruling. The standing orders only confer certain explicit power. They give no power to either House to pass an order which would enable its members to amend the Constitution. END QUOTE

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Sir Edmund Barton's ideas on Immigrants and being an Australian in 1907.

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"In the first place, we should insist that if the immigrant who comes here in good faith becomes an Australian and assimilates himself to us, he shall be treated on an exact equality with everyone else, for it is an outrage to discriminate against any such man because of creed, or birthplace, or origin. But this is predicated upon the person's becoming

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in every facet an Australian, and nothing but an Australian. There can be no divided allegiance here. Any man who says he is an Australian, but something else also, isn't an Australian at all. We have room for but one flag, the Australian flag. We have room for but

one language here, and that is the English language loyalty and that is a loyalty to the Australian people."

and we have room for but one sole

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Hansard 1-3-1898 Constitution Convention Debates QUOTE Mr. HIGGINS.-Suppose the sentry is asleep, or is in the swim with the other power?

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Mr. GORDON.-There will be more than one sentry. In the case of a federal law, every member of a state Parliament will be a sentry, and, every constituent of a state Parliament will be a sentry. As regards a law passed by a state, every man in the Federal Parliament will be a sentry, and the whole constituency behind the Federal Parliament will be a sentry. END QUOTE

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Perhaps one day the government may just realise that a person like myself as a CONSTITUTIONALIST should be consulted as to what is the appropriate way to go forth rather than the so called constitutional lawyers who really lack a proper understanding and comprehension what is the true meaning and application of the constitution.

Rest assure, I wont hold my breath to await for such a request, because unlikely will that be

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forthcoming. It also means that we really do not resolve the issues appropriately because as long as it remains a political issue it will be going forth and back pending who is in power. And this hardly can serve any person as to his/her rights. And, lets be frank about it despite all the land rights claims that ended up with land being provided those aboriginals hardly then are supporting other Aboriginals as then they are so to say each on their own. Why bother about

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other Aboriginals when you have so to say made a buck? So, while we hear so often about struggling Aboriginals we somehow do not bother to refer to the non-Aboriginals who suffer in the same manner. By this Aboriginal become so to say a dirty word. We should have that being Aboriginal or not should not make a difference to the right of proper health and education!

As I understand it Aboriginals have about 60% of their DNA from Davidsonians, and that may

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mean that Aboriginals after all may not have been the first people to live in the landmass Australia! Again, let us all work together to get things right rather than to forever change legislation without actually addressing the core issues.

Again so much more to state but for now it should give some indication that things are not as they might appear to be to many.

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.

This document is not intended and neither must be perceived to refer to all issues/details.

Awaiting your response,

G. H. Schorel-Hlavka O.W.B. (Friends call me Gerrit)

G. H. Schorel-Hlavka O.W.B. (Friends call me Gerrit)

MAY JUSTICE ALWAYS PREVAIL®

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(Our name is our motto!)

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