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Coroner Sara Hinchey J 25-4-2017


Coroners Court of Victoria
65 Kavanagh Street, Southbank, VIC 3006
5 Phone: 1300 309 519 Calling from overseas: (+61 3) 8688 0700
Fax: 1300 546 989
General enquires (including submissions of all Forms): courtadmin@coronerscourt.vic.gov.au
Coronial Admissions and Enquires Office: cae@coronerscourt.vic.gov.au

10 Ref: 20170425-G. H. Schorel-Hlavka O.W.B. Re SUBMISSION to Coroner Sara Hinchey J-Supplement 8


Madam,
Further to my 13 February 2017 submission and Supplement 1 and Supplement 2 of 13-
4-2017, Supplement 3+COMPLAINT of 14-4-2017, Supplement 4+COMPLAINT of 16-4-
2017, Supplement 5+COMPLAINTof 15-4-2017, Supplement 6 of 23-4-2017, Supplement 7 of
15 24-4-2017, I hold it appropriate to provide this Supplement 8 of 25-4-2017.
I quite honesty have not been following to every extent what was allegedly relevant to the driver
involved in the Bourke Street carnage at Melbourne, however I understood there were allegations
of earlier problems involving this person long before the carnage.
20 .
One obvious issue I encountered over decades was people having lost any trust/confidence in the
legal system. I have written about this on numerous occasions and consider it appropriate to refer
to some matters albeit in a more concise manner.
After all, if the driver was in a state of mind that he had from past bad experiences with the
25 authorities and/or the courts then this I view can set a person on a dangerous path of self-
destruction and so more likely willing to kill innocent people in the process.
.
The Lindt caf murders is a clear example where a person is willing to sacrifice the lives of
innocent people. I have been dealing with people I understood to be of similar mind and I
30 understood from them they do not trust psychiatrist/psychologist, etc, as they really are not
interested in their personal problems, etc. As such, people by word by mouth would at times end
up contacting me.
You may consider I might have been harsh in my COMPLAINT about the involvement of the
35 agent-doj involvement but reality is this is a serious issue to many. The separation of power has
been dwindling away and misconceived by judges, even those of the High Court of Australia,
that somehow States do not have separation of powers, this even so it is embedded in our legal
system because the British Bill of Rights that was including the Declaration of Rights and the
coronation oath of the Queen cannot be circumvented.
40 .
In my view you are committing TREASON against the constitution that is the Commonwealth of
Australia Constitution Act 1900(UK) where you permit the Coroners Court to be subjected to
the Government of the Day.

45 I will repeat the statement of former justice Phillips and then followed by Lord Hewart writings.
This is important as the government of the Day has clearly through parliament undermined the

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independence of the courts in numerous ways. This tio include the purported Infringement Act
and Infringement Court I hold are both unconstitutional.
.
I view the arrangements made by the then Attorney-General Roberts Hulls and the Police
5 Minister to sign a deed with a private entity that it can operate as a court and access the courts
files, and issue infringement court orders and even warrants without any accused having any
ability to appear let alone challenge the allegations (whatever they might be) before this
Infringement Court clearly is a gross defiance of the constitution embedded legal principles.

10 Hansard 8-2-1898 Constitution Convention Debates


QUOTE
Mr. OCONNOR.-No, it would not; and, as an honorable member reminds me, there is a decision on the
point. All that is intended is that there shall be some process of law by which the parties accused must be
heard.
15 Mr. HIGGINS.-Both sides heard.
Mr. OCONNOR.-Yes; and the process of law within that principle may be [start page 689] anything
the state thinks fit. This provision simply assures that there shall be some form by which a person
accused will have an opportunity of stating his case before being deprived of his liberty. Is not that a
first principle in criminal law now? I cannot understand any one objecting to this proposal.
20 END QUOTE

From The Age

http://www.theage.com.au/news/Opinion/The-corporatising-of-our-courts/2005/03/23/1111525218521.html

QUOTE

25 The corporatising of our courts

Retirement speech of John K. Phillips, Supreme Court of Victoria

March 24, 2005

In his parting words from the Supreme Court bench, John D. Phillips warns of a dangerous erosion of
the court's independence.

30 For more than 14 years I have been sitting here, and it has been hard and unremitting, but exciting and
rewarding - emotionally, I hasten to add, before I am misunderstood. But for much of that time I have had
to bite my tongue.

I refer to policy matters rather than the debate within a particular case. For, during my time on the bench, and
especially as I grew more senior, I have watched with some concern a change emerge in the perception of this
35 court by others and some blurring of essential distinctions. I want to speak briefly of that now because I have
been unable to say much about it until now and when my resignation becomes effective, I fear that nobody
will listen.

As we all know, the independence of the judiciary is a cornerstone of our constitutional system,
particularly the independence of this court, which must, from time to time, tell the political arms what
40 they can and cannot do according to law. As a court we will rarely, if ever, be popular with politicians, but
while I have been sitting here, I have seen what appears to me to be some erosion of this court's
independence.

One of the most public examples recently was the refusal of the executive to accept the decision on
remuneration handed down by the tribunal established by the Parliament for the very purpose of freeing both
45 Parliament and the executive from the invidiousness of the decision-making process over judicial salaries and
so ensuring the independence of which I am speaking.
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Less well known was the refusal of earlier governments to allow that the court's own chief executive officer
be appointed by the Governor-in-Council and its insistence that that officer be appointed by and be ultimately
answerable to the Department of Justice, which is what happened.

That appears now, if I may say so, to have been but part of a movement towards this court's becoming
5 absorbed into that department, and it is that to which I want to draw attention in particular; for such a
movement must be reversed if this court is to have, and to keep, its proper role under the constitution.

This court is not some part of the public service and it must never be seen as such. Established as a court
of plenary jurisdiction and with supervisory jurisdiction over all other courts and tribunals, this court is the
third arm of government, co-equal in concept with Parliament and the executive. Its role, inter alia, is to
10 control and to limit those other arms according to law and to that end to stand between those other arms and
the citizen. Hence the emphasis on the court's independence, especially from the executive.

Yet within the Department of Justice this court is now identified and dealt with - would you believe - as
"Business Unit 19" within a section labelled "courts and tribunals", a section which indiscriminately
includes all three tiers of the court structure and VCAT.

15 This court is subject to direction on the raising of taxes in the form of court fees - in that these are prescribed
by departmental regulation, even if a part of those fees is redirected to the court by the department at its
discretion. The other day the department used a regulation to prescribe a procedure in this court,
apparently in disregard, if not in defiance, of the convention that such matters are for rules of court.

And perhaps most troubling of all: the judges' computers, which were provided by and through the
20 department, are but part of the departmental network. I do not say that departmental officers ordinarily
avail themselves of the access that that affords; one hopes the department has some controls in place. But
access is possible, and that seems to me altogether inappropriate when the state, in one form or
another, is the major litigant in this court, and sometimes on matters of critical import to the wider
community.

25 Nobody is suggesting that the executive would ever seek to influence a judge's decision directly, otherwise
than by argument in open court, but what has been happening is more insidious. What is evolving is a
perception of the court as some sort of unit or functionary within the Department of Justice, a perception
which is inconsistent with this court's fundamental role and underlying independence.

Indeed I think it is fair to say that the Supreme Court, despite its dominant role within the court structure and
30 its constitutional role vis-a-vis the other arms of government, is now seen by some in authority as no different
from a tribunal, nowadays the Victorian Civil and Administrative Tribunal in particular. That is simply not
the case; yet the distinction between a court and a tribunal has been steadily undermined over the years, and it
must be restored if the proper constitutional position is not 2to be subverted.

The basic distinction is easy enough. A court exercises judicial power and must be, and be seen to be,
35 impartial and so must be independent of all else. Accordingly, its judges are appointed once and for all, and
ideally, without hope of additional gain or reward from anyone, including any other arm of government.
Hence Parliament's creation of the specialist remuneration tribunal. In contrast to a court, a tribunal, properly
so called, exercises administrative functions but not judicial power, and many things flow from that. Such a
tribunal may be an arm of the executive; its members may be appointed for fixed terms, with the possibility
40 of renewal at the discretion of the executive; and the need is not so great, to see that their remuneration is
fixed independently of the executive.

You will see, now, how far the distinction between court and tribunal has become blurred. While the
Victorian Civil and Administrative Tribunal is staffed by a few judges, it consists mainly of members
appointed for fixed terms, capable of renewal at the discretion of the executive - and hence my alarm when,
45 in addition to its administrative work, that tribunal was given some judicial power to exercise, for the latter is
altogether inconsistent with such a form of tenure.

There is talk now of acting judges for this court, and again, because this is a court which is exercising judicial
power, such would be anathema. It is one thing to tolerate the occasional acting appointment to this court for
a limited time or purpose; it is altogether different to institutionalise such temporary appointments at the
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discretion of the executive. Judges of a court properly so called must have security of tenure or, in a relatively
small community like this in Victoria, the whole system is put at risk. Our courts have been remarkably free
from any taint of bias or corruption; let it remain that way. A judge must be, and be seen to be, impartial
and so must eschew all other interests which might one day give rise to conflict or the appearance of
5 bias.

In my book, the judge must forgo the current cult of the individual: to adapt Edmund Burke, "individuals pass
like shadows, but the (institution) is fixed and stable". The judge is sometimes accused of remoteness but in
one sense that is no more than the reverse side of the commitment, the total commitment, which is demanded
of the appointee.

10 John D. Phillips is retiring as a judge of the Supreme Court of Victoria. This is part of his farewell address to
the court.

END QUOTE

As the then His Honour Phillips J made clear the government had access to court computers and
15 all that I now am waiting for is some judge to make clear that his/her orders and reason of
judgment that was handed down was altered without his/her consent by persons unknown as the
actual orders and reason of judgment on his computer didnt present what the fraudulent orders
and judgments portray to be.

Lord Hewart - The New Despotism (1929) : The Rt. Hon. Lord Hewart ...
20 https://archive.org/details/LordHewart-TheNewDespotism1929
May 7, 2013 - LORD HEWART OF BURY, Lord Chief Justice of England (7 January, 1870 - 5 ...
[archiveorg LordHewart-TheNewDespotism1929 width=560 ...

The New Despotism - Wikipedia


https://en.wikipedia.org/wiki/The_New_DespotismThe New Despotism was a book written by The
25 Rt. Hon. Lord Hewart of Bury, Lord Chief Justice of England, and published in 1929 by Ernest
Benn Limited.

https://archive.org/details/LordHewart-TheNewDespotism1929

30 Lord Hewart - The New Despotism (1929)


by The Rt. Hon. Lord Hewart Of Bury, LCJ

Usage Attribution-Noncommercial-No Derivative Works 3.0Topics administrative law, despotism,


government, judges, Law Lords, lawyers, Parliament, politics, Privy Council, subordinate legislation,
35 statutory instruments, Supreme Court

SHOW MORE

THE RT. HON. LORD HEWART OF BURY, Lord Chief Justice of England (7 January, 1870 - 5 May,
40 1943).
"I will be no party to the doctrine," Lord Hewart said in a recent speech, "that a Lord Chief Justice,
summoned to the House of Lords, as he is, not merely to vote, but also to advise, is condemned to a
lifelong and compulsory silence on the affairs of State."

45 THE NEW DESPOTISM, a book of quite exceptional importance, is, in effect, the sequel to that speech.
Every citizen of this country, from the least to the greatest, is directly and personally concerned with the
encroachments of bureaucracy on public life. "Very few laymen are aware of the wide difference which
exists between the rights of these parties (the Crown and the subjects of the Crown) as they survive to
this day under the traditions of antiquated law and practice; and still less do they realise the gross
50 injustice not infrequently inflicted upon individuals by the harsh and unconscionable exercise of certain
rights which Executive Departments enforce, and which the Courts of law are powerless to disallow. . . .

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The existence of the fundamentally false and unconstitutional idea that the bureaucracy are a privileged
class, not amenable in their official acts to the jurisdiction of the courts, is a danger to our traditional
liberties which is obvious," said *The Times* in a leading article, and it is "these wide differences" and
"this danger to our traditional liberties" which the Lord Chief Justice examines and condemns.
5
THE NEW DESPOTISM is fully documented and deals with these vital questions in a technical as well
as a popular manner.

10 CONTENTS

CHAP.
I. THE NATURE OF THE QUESTION
II. THE RULE OF LAW
15 III. "ADMINISTRATIVE LAW"
IV. ADMINISTRATIVE LAWLESSNESS
V. THE SYSTEM AT WORK
VI. DEPARTMENTAL LEGISLATION
VII. THE INDEPENDENCE OF THE JUDICIARY
20 VIII. WHAT IS TO BE DONE?
IX. SOME LEADING CASES
X. EXAMPLES FROM STATUTES

IV. ADMINISTRATIVE LAWLESSNESS


25 QUOTE
CHAPTER IV
ADMINISTRATIVE LAWLESSNESS
It is not, but it ought to be, common knowledge that there is in this country a considerable number of statutes,
most of them passed during the last twenty years, which have vested in public officials, to the exclusion of
30 the jurisdiction of the Courts of Law, the power of deciding questions of a judicial nature. Usually the power
is given nominally to the Minister or other head of a Government department, sometimes to the department
itself, and it is commonly provided that his or its decision shall be final and conclusive.
When it is provided that the matter is to be decided by the Minister, the provision really means that it is to be
decided by some official, of more or less standing in the department, who has no responsibility except to his
35 official superiors. The Minister himself in too many cases, it is to be feared, does not hear of the matter or the
decision, unless he finds it necessary to make inquiries in consequence of some question in, Parliament. The
official who comes to the decision is anonymous, and, so far as interested parties and the public are
concerned, is unascertainable.
He is not bound by any particular course of procedure, unless a course of procedure is prescribed by the
40 department, nor is he bound by any rules of evidence, and
43
THE NEW DESPOTISM
indeed he is not obliged to receive any evidence at all before coming to a conclusion. If he does admit
evidence, he may wholly disregard it without diminishing the validity of his decision. There is not, except in
45 comparatively few cases, any oral hearing, so that there is no opportunity to test by cross-examination such
evidence as may be received, nor for the parties to controvert or comment on the case put forward by their
opponents. It is, apparently, quite unusual for interested parties even to be permitted to have an interview
with anyone in the department. When there is any oral hearing, the public and the press are invariably
excluded. Finally, it is not usual for the official to give any reasons for his decision.
50 To employ the terms administrative "law" and administrative "justice" to such a system, or negation of
system, is really grotesque. The exercise of arbitrary power is neither law nor justice, administrative or at all.
The very conception of "law" is a conception of something involving the application of known rules and
principles, and a regular course of procedure. There are no rules or principles which can be said to be rules or
principles of this astonishing variety of administrative "law", nor is there any regular course of procedure for
55 its application. It is possible, no doubt, that the public official who decides questions in pursuance of the
powers given to his department does act, or persuades himself that he acts, on some general rules or
principles. But, if so, they are entirely unknown to anybody outside the department, and of what value is a so
called "law" of which nobody has any knowledge?
The idea of justice contemplates at least an independent
60 44
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ADMINISTRATIVE LAWLESSNESS
and impartial judge, who founds his judgement on evidence and reason. By a provision of the Act of
Settlement the Judges hold office during good behaviour, instead of, as before, at the pleasure of the Crown,
and they can be removed only on an address to the Crown by both Houses of Parliament. They are, therefore,
5 practically irremovable, and it may be observed that their salaries, being charged on the Consolidated Fund,
do not appear in the annual votes. Moreover, by Parliamentary practice, it is not permitted to comment on the
conduct of a Judge except on a formal resolution for an address to the Crown for his removal.
The system of so-called administrative "law" in this country has little or no analogy to the "droit
administratif" of the Continent, and is an indescribably more objectionable method. The "droit administratif"
10 is administered by real tribunals, known to the parties, and these tribunals apply definite rules and principles
to the decision of disputes, and follow a regular course of procedure, though the rules and principles applied
are different from those of the ordinary law governing the relations of private citizens as between themselves.
Moreover, the tribunals give reasons for their decisions and publish them. In a word, the "administrative
tribunals" of the Continent are real Courts, and what they administer is law, though a different law from the
15 ordinary law. More than that, the "droit administratif" is a regular system of law, applicable not only to all
matters pertaining to the public service, but also to all disputes between the Government or its servants on the
one hand and private citizens on the other hand.
45
THE NEW DESPOTISM
20 Administrative "law" in this country is not really a system at all, but is simply an exercise of arbitrary power
in relation to certain matters which are specified or indicated by statute, not on any definite principle, but
haphazard, on the theory, presumably, that such matters are better kept outside the control of the Courts, and
left to the uncontrolled discretion of the Executive and its servants.
The public official is not independent. As a civil servant, he is liable to be dismissed at any time without
25 notice, and without any enforceable right to compensation. One would have thought it perfectly obvious that
no one employed in an administrative capacity ought to be entrusted with judicial duties in matters connected
with his administrative duties. The respective duties are incompatible. It is difficult to expect in such
circumstances that he should perform the judicial duties impartially. Although he acts in good faith, and does
his best to come to a right decision, he cannot help bringing what may be called an official or departmental
30 mind, which is a very different thing from a judicial mind, as everybody who has had any dealings with
public officials knows, to bear on the matter he has to decide.
More than that, it is his duty, as an official, to obey any instructions given him by his superiors, and, in the
absence of special instructions, to further what he knows to be the policy of his department. His position
makes it probable that he should be subject to political influences.
35 Let it be supposed, for the sake of the argument, that the power of deciding disputes as to liability to income-
tax were vested in the Board of Inland Revenue, without appeal to the Courts. Could it be suggested that the
sub-
46
ADMINISTRATIVE LAWLESSNESS
40 ject would be likely to receive judicial treatment? "Oh," it may be said, "but that is an extreme case which
wouldnever be sanctioned by Parliament." Yet it would not bedifferent in principle from the case exhibited
by the powers vested in the Minister of Health in relation to National Insurance. It is the decision of his
delegate which is final and conclusive, both in fact and in law, as to the rates of contribution payable by or in
respect of insured persons, and his findings of fact are conclusive on any question whether any employment
45 or class of employment falls within the scope of the Act,-a question which, of course, determines the liability
to pay contributions.
Will anybody at this time of day deny that it is essential to the proper administration of justice that the
decision should be based on evidence, and that the evidence should be heard in the presence of both parties,
who are given the opportunity of cross-examination? Evidence not tested by cross-examination is nearly
50 always misleading and practically valueless. The public official, as has been observed, may, and often does,
decide without any evidence at all, and he may act on ex parte statements, made by one party without
anything to support them, which are never brought to the knowledge of the other party, so that he has no
opportunity to controvert them. Is it too much to say that such proceedings are a mere travesty of justice? It is
also essential to the proper administration of justice that every party should have an opportunity of being
55 heard, so that he may put forward his own views and support them by argument, and answer the views put
forward by his opponent.
More than that, it is of great importance that all
47
THE NEW DESPOTISM

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judicial proceedings should be held in public, so that the public may know what is being done, and be able to
judge whether it is really justice, or injustice, that is being administered, and also have a guide to their own
conduct.
The departmental policy of secrecy, which is inveterate, is in itself sufficient to condemn the system under
5 which the public departments act as tribunals to decide disputes of a judicial nature. This secrecy naturally
leads to the conclusion that the departments are afraid of their proceedings being made public, and tends to
destroy confidence in the fairness of their decisions. How is it to be expected that a party against whom a
decision has been given in a hole-and-corner fashion, and without any grounds being specified, should
believe that he has had justice? Even the party in whose favour a dispute is decided must, in such
10 circumstances, be tempted to look upon the result as a mere piece of luck. Save in one or two instances, none
of the departments publishes any reports of its proceedings, or the reasons for its decisions, and as the
proceedings themselves, if any, are invariably held in secret, even interested parties have no means of
acquiring any knowledge of what has taken place, or what course the department is likely to take in future
cases of the same kind that may come before it. A departmental tribunal is, however, in no way bound, as a
15 Court of Law is, to act in conformity with previous decisions, and this fact is commonly regarded as one of
the reasons for the policy of secrecy.
Others may think that the department is afraid to disclose inconsistencies and a want of principle in its
decisions.
However that may be, the policy is fatal to the placing of
20 48
ADMINISTRATIVE LAWLESSNESS
any reliance on the impartiality and good faith of the tribunal. It is a queer sort of justice that will not bear the
light of publicity.
In the kind of "legislation" which is being considered, it is usual to provide that the decision of the Minister
25 shall be final and conclusive. When this is the case, the Courts are powerless to intervene, however unjust and
absurd a decision may appear to be, and even though it is obviously based on an erroneous view of the law. It
may be said that, if it can be shown that no real discretion was exercised by the deciding official, and the
decision is merely capricious, or is perverse or corrupt, the Courts might hold it void on the ground that it
does not really constitute an exercise of the authority vested in the Minister at all. But where one is dealing
30 with a decision given without reasons, by an anonymous official, who is not ascertainable, how can any such
matter be proved? How can it be shown that such a person, who has not disclosed the evidence, if any, on
which he purported to act, was prompted by any particular motives? How can it be determined whether he
has acted in good or bad faith, when he has not stated the reasons for his decision? It may be that the decision
is apparently so perverse that the party against whom it is given has a reasonable suspicion that it was
35 dictated by spite or vindictiveness, or was even corrupt. But, without knowing who the deciding official is, it
is of course impossible for a person aggrieved to prove anything of the kind, or even to furnish grounds for
suspecting it. The victim is, in such a case, perfectly helpless, and entirely without remedy. Heis completely
at the mercy of a person who, for all he
49 D
40 THE NEW DESPOTISM
knows, may be a bureaucratic tyrant. If he did attempt to challenge the decision by proceedings in a Court of
Law, he might well be told by the Court that it must be presumed that the Minister acted in good faith, and in
such circumstances the presumption is irrebuttable.
It may be said that there is no substantial ground for the fear of unfairness or corruption in the Civil Service.
45 As to unfairness, people who have had disputes with public officials may sometimes conceivably hold a
contrary opinion. As to corruption, that is a vice from which the Service is completely and undoubtedly free.
It is of vital importance that it should so continue. But if there were any great extension of the system of
giving uncontrolled and arbitrary powers to public officials, it is as certain as that night follows day that
corruption might creep in. We might then be cursed with the corrupt bureaucrat. The bureaucratic despot we
50 already have. To take a simple instance, the treatment of the panel doctors under the National Health
Insurance Acts is pure despotism. The doctors are liable, at the mere discretion of the official who acts for the
Minister of Health, to be ruined professionally by being struck off the panel, or, as a lesser punishment, to be
fined to an arbitrary extent. In one instance, a fine of 1000 was imposed on two doctors who carried on
business in partnership.
55 "Excessive prescribing", an offence wholly unknown to the law, which consists in prescribing for the patient
medicines that are either too expensive in quality or too liberal in quantity, is one of the things for which a
doctor may be penalized. One might think that, for a person who is bound by law to insure and pay
contributions
50
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under the Acts, the best medicine ought to be prescribed in illness. But apparently that is not always the view
of the department. One might wonder whether, in this matter, the interests of the patients are adequately taken
into consideration.
It is sometimes enacted that, before the Minister comes
5 to a decision, he shall hold a public inquiry, at which interested parties are entitled to adduce evidence and be
heard. But that provision is no real safeguard, because the person who has the power of deciding is in no way
bound by the report or the recommendations of the person who holds the inquiry, and may entirely ignore the
evidence which the inquiry brought to light. He can, and in practice, sometimes does, give a decision wholly
inconsistent with the report, the recommendations, and the evidence, which are not published or disclosed to
10 interested individuals.
In any case, as the official who decides has not seen or heard the witnesses, he is as a rule quite incapable of
estimating the value of their evidence. So far, therefore, as restraining the arbitrary power of the deciding
official is concerned, the requirement of a public inquiry is in practice nugatory, and it cannot be of much
value in enabling him to form a just conclusion. It seems absurd that one official should hold a public inquiry
15 into the merits of a proposal, and that another official should be entitled, disregarding the report of the first, to
give a decision on the merits.
It is indeed sometimes suggested that these arbitrary powers are given by Parliament, who would not confer
them in cases where it is considered that they are likely to
51
20 THE NEW DESPOTISM
be abused. But that is only theoretically true. In existing conditions the Cabinet, as representing the
Government of the day, is, generally speaking, the real legislative power, Parliament merely confirming its
proposals, and there can be little doubt that it is the officials in the departments concerned who initiate the
legislation by which the arbitrary powers are conferred upon them. When Parliament passes such legislation,
25 one may wonder how many members outside the Ministry know what they are really doing. How much less
do the people know what is being done in this respect by their representatives! It is inconceivable that such
legislation would be passed, at all events without protest, if the legislators knew that they were sapping the
foundations of the Constitution. All great constitutional lawyers have recognized that it is the rule, or
supremacy, of the law, administered by independent judges, that is the basis of all our constitutional liberties,
30 and it is this characteristic of the British Constitution which, above all, makes that Constitution admired
throughout the civilized world. Arbitrary power is certain in the long run to become despotism, and there is
danger, if the so-called method of administrative "law", which is essentially lawlessness, is greatly extended,
of the loss of those hardly won liberties which it has taken centuries to establish.
One of the marks of despotism, as all history shows, is that it is unteachable. Its intrinsic nature, it would
35 seem, is such that it must always, sooner or later, express itself in ways which are not only indefensible but
also quite manifestly indefensible. The fact is not, perhaps, to be reADMINISTRATIVE LAWLESSNESS
gretted. If it were otherwise, despotism might have more dupes, and a longer run. As it is, it exhibits itself,
sooner or later, in a fashion which has the effect of exciting public observation, so that despotism is checked
for a time, and has to start again. Attention has already been directed to a statute of the year 1925 (the Rating
40 and Valuation Act, 1925) which contained the egregious provision that the Minister might, if he thought fit,
actually modify the provisions of the Act itself. That provision was piloted through both Houses of
Parliament. But it did not escape remark.
On the contrary, since it became law, it has on many occasions been the subject of criticism, not only in
public speeches and writings, but also in the Law Courts. It might have been thought that the amateurs of the
45 new despotism, unless they regarded public opinion with complete indifference, and unless they were also
satisfied that they could count upon perfect complaisance or utter inattention in both Houses of Parliament,
would avoid, at any rate for a time, the repetition of that particular revelation of themselves.
But what followed? In the early part of 1929 a new Local Government Bill was introduced which contained a
clause (originally clause 11I) in the following terms:
50 "If any difficulty arises in connection with the application of this Act to any exceptional area, or in bringing
into operation any of the provisions of this Act, the Minister may by order remove the difficulty, or make any
appointment, or do any other thing which appears to him necessary for bringing the said provisions into
operation, and any such order may modify the provisions of this Act so far as may appear to the Minister
53
55 THE NEW DESPOTISM
necessary or expedient for carrying the order into effect."
Here, then, was another proposal to enact that the Minister, if he thought it necessary, or even expedient,
might by order "modify the provisions" of the enactment.
The House of Commons did not like it. A good deal of water had flowed under the bridges, and a good many
60 remarks had been made, in public and in private, some of them Parliamentary, and some of them less
Parliamentary, between 1925 and 1929. A storm, or at least a sort of storm, arose, and the Minister found it

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expedient, or even necessary, to promise amendment. But the amendment, when it came, was something
quite wonderful. After a good deal of criticism, the amended clause, polished and pruned, was added to the
Bill, and emerged from the House of Commons, in the following form (the clause now being numbered 120):
"If any difficulty arises in connection with the application of this Act to any exceptional area, or in bringing
5 into operation any of the provisions of this Act, the Minister may make such order for removing the difficulty
as he may judge necessary for that purpose, and any such order may modify the provisions of this Act," and
so on as before.
That is to say, the words "by order remove the difficulty, or make any appointment, or do any other thing
which appears to him necessary for bringing the said provisions into operation" were taken out, and in their
10 place the following words were inserted: "make such order for re-
54
ADMINISTRATIVE LAWLESSNESS
moving the difficulty as he may judge necessary for that purpose", while the power to modify the provisions
of the Act remained. Such was the official redemption of the promise given to the House of Commons to
15 meet by amendment the objection which had been taken. Did ever a mountain in labour bring forth a more
ridiculous mouse?
"The difference between the two clauses is", as the Law Journal truly said (February 23, 1929) "a case of
Tweedledum and Tweedledee. In fact, the practical effect is the same, and the Minister has found it
impossible to carry out his undertaking, and yet leave the clause in being." Nor is it to be supposed that either
20 the Minister himself, or any of the skilled advisers upon whom he depended, was not perfectly well aware of
the exiguous nature of the change.
The House of Commons, it was believed, for some reason or other, would ultimately acquiesce, even though
for a time it protested. What is significant in this transaction, it may be suggested, is the frame of mind of
those who drafted and approved the original proposal, and had the courage to put forward the amendment as
25 removing the objection to it.
The sequel is not without interest. When the measure reached the House of Lords, the clause had come to be
clause 123. In the discussion on the previous clause in Committee (March 8,1929) something had been said
upon the provisions for laying before Parliament certain orders and regulations made under the Act. "We may
be told", said Lord Strachie, "that we can have confidence in the present Minister of Health. I quite agree, but
30 the present Minister of Health will not always be there, and we may
55
THE NEW DESPOTISM
have a Minister who will adopt a very hostile attitude towards County Councils and local bodies and want to
centralize everything in Whitehall. There is alwaysthat danger, and we must look ahead." When clause 123
35 was reached, no amendment was proposed to the first part of the clause, which provided, in the tenns already
set out, for the making of orders that might "modify the provisions of this Act".
The attack, such as it was, was directed against the second part of the clause, which provided merely that
"every order made under this section shall be laid before Parliament as soon as may be after it is made". Lord
Askwith moved an amendment for the purpose of adding the words, "and shall not be of any effect unless and
40 until a Resolution affirming the order is passed by each House of Parliament".
The amendment, he said, "would give a control to Parliament which has rather been before the country, and
which the country desires, against orders being made by a Minister without anybody else having any control".
The amendment was afterwards withdrawn upon an assurance given by the Lord Chancellor. "I am quite
willing," Lord Hailsham said, "if your Lordships think it right, that any exercise of the power of clause 123
45 should be brought to the special attention of Parliament by providing that, instead of its merely being laid on
the Table, and subject to disallowance by a Resolution under clause 122, in the case of an order made under
clause 123 there should be the necessity for its confirmation by an affirmative Resolution within a named
number of days after Parliament meets, after the order has been made." The last phase was reached on the
Report Stage in the House of Lords (March 14,
50 56
ADMINISTRATIVE LAWLESSNESS
1929). Again the first part of the clause, giving power to make orders modifying the provisions of the Act,
was allowed to remain in the form in which it had come from the House of Commons. But the second part of
the clause, by the combined result of more than one amendment, was altered so as to read in the following
55 way:
"Every order made under this section shall come into operation upon the date specified therein in that behalf,
but shall be laid before Parliament as soon as may be after it is made and shall cease to have effect upon the
expiration of a period of three months from the date upon which it came into operation, unless at some time
before the expiration of that period it has been approved by a resolution passed by each House of Parliament:

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"Provided that, in reckoning any such period of three months as aforesaid, no account shall be taken of any
time during which Parliament is dissolved or prorogued, or during which both Houses are adjourned for more
than four days."
It is in that form that the clause now appears as section 130 of the Local Government Act, 1929. From all of
5 which it will be seen (I) that the power to modify, by departmental order, the provisions of the Act, remains;
(2) that every such order is to come into operation upon the date specified in the order in that behalf; (3) that
the period of three months runs from the date so specified; and (4) that the proviso with regard to the
reckoning of that period, although to the careless reader it might seem to involve an extension of the period of
Parliamentary control, in effect extends the period during which the order may be in operation without
10 Parliamentary approval.
57
THE NEW DESPOTISM
It may be observed that The Times, in a leading article in its issue, dated the r6th February r929, said with
reference to this clause, enabling the Minister by Order to modify the provisions of the statute:
15 "The true precedents, it has been pointed out, must be sought further back than r888. They are the pretensions
to the dispensing powers under the Stuarts and the Statute-obsequiously passed by both Houses-which
declared that anything enacted by King Henry VIII. Or by Order in Council should have the force of law."
58
END QUOTE
20
See also:
https://archive.org/stream/LordHewart-TheNewDespotism1929/HEWARTLordOfBury-
The_New_Despotism_1929_djvu.txt
Full text of "Lord Hewart - The New Despotism (1929)"
25
The Bill of Rights is what did set in tone the coronation oath requirements that any Monarch
must act according to law and cannot act contrary to it, where the constitution is the primary
source of law and any legislation enacted within this are by-laws.

30 https://en.wikipedia.org/wiki/Declaration_of_Right,_1689
QUOTE

The Declaration of Right consisted of two main parts: a list of the wrongs committed by King James II and 13
clauses that specified the new limits to royal power and authority. The 13 clauses Parliament drew up directly
address each of the items on the list of wrongs committed by King James II. The convention, which took statutory
35 effect in December 1689 with William and Mary's royal assent, made Parliament the main governing body and
upholder of the law in England.

The list of infractions committed by King James II[edit]

Note: In the following, the italic text is the quote from the actual document and the regular text is the paraphrase.

40 Whereas the late King James the Second, by the assistance of [many] evil counsellors, judges and ministers
employed by him, did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this
kingdom...[3]

1. By dispensing and suspending laws without the consent of Parliament. By assuming and exercising a power
of dispensing with and suspending of laws and the execution of laws without consent of Parliament.
45 2. By prosecuting people for protesting the Kings reign. By committing and prosecuting divers worthy
prelates for humbly petitioning to be excused from concurring to the said assumed power.
3. By creating and using an organization affiliated with the Catholic Church. By issuing and causing to be
executed a commission under the great seal for erecting a court called the Court of Commissioners for
Ecclesiastical Causes.
50 4. By the use of funds by Crown for other purposes than the funds were originally granted for by Parliament.
By levying money for and to the use of the Crown by the pretense of prerogative for other time and in
another manner than the same was granted by Parliament.

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5. By keeping a standing army in peacetime without the consent of Parliament. By raising and keeping a
standing army within this kingdom in time of peace without consent of Parliament, and quartering soldiers
contrary to law.
6. By stripping Protestants of arms and, at the same time, arming Catholics. By causing several good
5 subjects being Protestants to be disarmed at the same time when papists were both armed and employed
contrary to law.
7. By not allowing for the free elections of Parliament. By violating the freedom of election of members to
serve in Parliament.
8. By doing parliament's business and illegally prosecuting those against him. By prosecutions in the Court of
10 King's Bench for matters and causes cognizable only in Parliament, and by divers other arbitrary and
illegal courses.
9. By placing corrupt jurors in court to pass judgment and placing jurors without land holdings in courts of
high treason. And whereas of late years partial corrupt and unqualified persons have been returned and
served on juries in trials, and particularly divers jurors in trials for high treason which were not
15 freeholders.
10. By requiring excessive bail charges. And excessive bail hath been required of persons committed in
criminal cases to elude the benefit of the laws made for the liberty of the subjects.
11. By imposing excessive fines. And excessive fines have been imposed.
12. By inflicting cruel and illegal punishments. And illegal and cruel punishments inflicted.
20 13. By imposing fines and seizing the property of people before their conviction. And several grants and
promises made of fines and forfeitures before any conviction or judgment against the persons upon
whom the same were to be levied.

All of which are utterly and directly contrary to the known laws and statutes and freedom of this realm.

The 13 clauses that limited the power of the Crown[edit]

25 1. The power of suspending and executing laws rests in the hands of Parliament. That the pretended power of
suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal.
2. The Crown does not have the legal authority to dispense or execute laws. That the pretended power of
dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of
late, is illegal.
30 3. The establishment of any institution of the Catholic Church is illegal. That the commission for erecting the
late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature,
are illegal and pernicious.
4. The imposition of any taxes by the Crown without the permission of Parliament is illegal. That levying of
money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer
35 time, or in other manner than the same is or shall be granted, is illegal.
5. The citizens have the right to petition the king without fear of repercussions. That it is the right of the
subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal.
6. A standing army at peacetime without the consent of Parliament is illegal. That the raising or keeping a
standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law.
40 7. All protestants have the right to bear arms for defence. These the subjects which are Protestants may
have arms for their defence suitable to their conditions and as allowed by law.
8. Parliament should be freely elected. That election of members of Parliament ought to be free.
9. Members of Parliament have the freedom of speech and their proceedings should not be questioned in any
place outside of Parliament. That the freedom of speech and debates or proceedings in Parliament ought
45 not to be impeached or questioned in any court or place out of Parliament.
10. Bail fees, excessive fines, and unusual punishments are illegal. That excessive bail ought not to be
required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
11. All trials now require the presence of jurors and all jurors for trials of high treason must be land
owners. That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials
50 for high treason ought to be freeholders.
12. It is illegal to fine or seize the property of any person who has not been convicted and all previous fines and
seizures are void. That all grants and promises of fines and forfeitures of particular persons before
conviction are illegal and void.
13. Parliament should be held frequently to uphold the laws. And that for redress of all grievances, and for the
55 amending, strengthening and preserving of the laws, Parliaments ought to be held frequently. [3]

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Results[edit]

At their coronation on 11 April 1689, William an Mary swore to govern according to "the statutes in Parliament
agreed on" instead of by "the laws and customs ... granted by the Kings of England", thus ending the threat of an
absolutist reign.[1] This non-violent overthrow of the monarch is known as the Glorious Revolution.

5 The Declaration of Right was written into the English Bill of Rights which took statutory effect in December 1689
with the royal assent of the king and queen, and subsequently became part of the English Constitution.[4] The cabinet
system of the English government evolved from this point onwards. The leading ministers formulated policy and ran
the business of the country; they held the legislative and executive power. These ministers had seats, and the
majority, in the House of Commons. The cabinet became responsible to the House of Commons under the de facto
10 Prime Minister, Sir Robert Walpole. After George II (r. 1727-1760), the power of the monarchy in the decisions of
the House of Commons declined drastically.

END QUOTE

I experienced that the right of petition to the Courts provided for in s5(v) was thwarted by the
15 court refusing to accept it for filing where on constitutional grounds I opposed the
unconstitutional invasion into the sovereign nation Iraq. Ironically years later I succeeded in both
appeals using the very same constitutional issues in my written submissions.
.
What we now have is that the Sheriffs Office is merely a debt collector for the Government of
20 the Day where people unconstitutionally are fined by the purported Infringement Court. We now
have that even the ATO fines a person and then involve debt collectors, without any court orders
to legally justify this. We also have that judges such as Mallaly J claim that a magistrate doesnt
need evidence to convict. What kind of absurd legal system do we have, I wonder. As such I may
not condone violence used by those aggrieved but I can UNDERSTAND why they end up at in
25 their desperation or otherwise wanting to kill as many other persons in the attempt to try to get
people listening to their grievances.
The Bill of Rights guarantee the right to carry weapons, and the Monarch coronation oath
ensures that this is to be upheld. Our constitution was based upon those bill of Rights provisions
as they are and were part of the rule of law when the British Parliament passed the
30 Commonwealth of Australia Constitution Act 1900 (UK). It is totally immaterial that
personally I dislike firearms as I was trained in the army and winning the first prize in an army
shooting competition I obviously know how to handle weapons, but to me they are weapons to
kill. It is the right to bear arms that is the last resort to be used when the government/parliament
violates the constitution and so its embedded legal principles as when this gross treasonous
35 conduct persist people may have been left with no alternative but to use their weapons and
overthrow a treasonous government/parliament and restore law and order within constitutional
context. In my view a Velvet Revolution as such would be the first port of call.
.
http://www.geelongadvertiser.com.au/news/crime-court/all-charges-dropped-against-registered-
40 sex-offencer/news-story/d62153338f089fe31de937c7a104b73f
QUOTE

All charges dropped against registered sex offender


KAREN MATTHEWS, Geelong Advertiser
February 25, 2014 3:26pm
45 REGISTERED sex offender, Ali Jaffari, accused of attempted child-stealing, has had all charges against him
dropped after a Magistrate told prosecutors he would have trouble finding Jaffari guilty.

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Magistrate Ron Saines said if he was hearing the matter, he would have reasonable doubt, citing cultural
differences as one factor, which would result in the charges being dismissed.

END QUOTE

5 No doubt a magistrate is well within his rights to dismiss charges by way of nullification and for
example on the other hand cannot direct a jury to find a person guilty (Albeit the Judge can direct
the jury to return a verdict not guilty- as was in the van Rooy case- in which I assisted)
However for a magistrate to refer to cultural difference I view is beyond his judicial powers in
fact I view a gross misuse of judicial powers. It makes not one iota difference what the cultural
10 /religious views of an alleged criminal might be the judicial officer must act within the confines
of judicial powers and not introduce some cultural exemption where the Parliament never
provided for this. If anything I view potential offenders may see this as an incitement to commit
crimes using cultural differences as some excuse, as is done with people claiming to be
associated in some way with IS or other groups.
15
It also makes not one of iota difference if the Governor/Governor-General gives Royal assent on
Bills to turn it into law where such legislation would be in violation of the constitution.
Hansard 9-3-1898 Constitution Convention Debates (Official Record of the Debates of the National
20 Australasian Convention)
QUOTE
Mr. DEAKIN (Victoria).-The position of my honorable and learned friend (Mr. [start page 2092] Higgins)
may be perfectly correct. It may be that without any special provision the practice of the High Court, when
declaring an Act ultra vires, would be that such a declaration applied only to the part which trespassed
25 beyond the limits of the Constitution. If that were so, it would be a general principle applicable to the
interpretation of the whole of the Constitution.
END QUOTE

As I challenged the validity of the Infringement Act and so the Infringement Court then unless a
30 Court pronounces against it, which never so far eventuated, it remains no NULL AND VOID
any decision it hands down including warrants it issues. Yet, it is ignored by both the judiciary as
well as by the politicians and the Sheriffs Office. As such we have this elaborate treasonous
conduct violating the basic principles of our constitution.
As I defeated the Commonwealth on constitutional grounds, and this included all State/Territory
35 Attorney-Generals that compulsory voting is unconstitutional then why are nevertheless the
courts persisting to enforce compulsory voting? Why is the Infringement Court ignoring this
ruling? Why is the Sherriffs Office nevertheless enforcing unconstitutional fines? It in my view
is an indictment against the judiciary and the politicians that they couldnt care less about what is
constitutionally permissible where it doesnt suit their terrorism upon the people or even
40 Members of Parliament.
Her Honour Gaynor, some years ago, is on record to claim that the constitution doesnt apply to
her as a judicial officer. How absurd can this be, this as if it wasnt for the constitution there be
no judiciary.
We have for example the Federal government violating the constitution by preventing an
45 independent Section 101 of the constitution Inter-State Commission to exist as it instead uses
pork barrelling over hundreds of millions of taxpayers monies.
And there are ample of people when they seek redress in the courts, guaranteed within the
constitution, then they are far too often as I understand it vilified and denounced not because they
are in the wrong but because they are appearing before judicial officer who lack more than likely
50 the basics kills to understand they must conform to constitutional provisions and provide fair and
proper trials. People are in such manner humiliated may then gain the view that if the rule of law
doesnt apply then they might as well take the law into their own hands as may suit them.

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The Letters Patent clearly provides powers a Governor to act as the representative of the
Monarch on the Monarch behalf but cannot as like the Monarch exercise greater powers beyond
the powers invested in the constitution.
.
5 The Courts must adjudicate impartially and independent from the legislature and judiciary. It
cannot so to say get involved in the brawl between citizens and the Government of the Day or the
Parliament other than to adjudicate upon what the constitution and any validly enacted legislation
stands for. It is therefore totally irrelevant of the Monarch/Governor-General/Governor provided
Royal; assent to any bill to enact it because the Monarch and so neither her representatives can
10 act in defiance of the constitution. Meaning that the Infringement Act cannot be deemed valid
merely because it had been given Royal Assent, where it violated the legal principles embedded
in the constitution.
As I exposed, VicRoad is applying penalty points at times double then was incurred and by this
15 wrongly can purportedly suspend a driver to drive even so in real terms the driver is entitled to
drive because he didnt incur those demit points as such. What we have is not even some tribunal
but a non-existing kind of tribunal that robs a citizen of his rights to have a trial by jury, etc.
Because the Bill of Rights was part of British law when the Commonwealth of Australia
Constitution Act 1900 (UK) was enacted it remains for ever part of our constitution as a legal
20 principle. Ordinary British law cannot undermine or otherwise affect our constitutional rights, as
only an amendment Constitution act can do so and only for the first 8 parts of the Act as part 9
can only be amended by a successful Section 128 referendum, and cannot even cause the
Commonwealth of Australia to become a Republic. Indeed, if such kind of unconstitutional
referendum was to succeed then it would be a Republic without a constitution because again it is
25 not permissible within our constitution. Some basic education as to understand what our
constitution stands for such as the Bill of Rights you may consider to watch the video
https://youtu.be/GwfgtZ-SC-4 496MB Re British Constitution.
Beyond any doubt it is terrible anyone got hurt let alone killed in the Bourke Street carnage, but
30 if we want to know the truth we need an impartial/independent judiciary who is willing to
consider what the possible issues were that caused a person to act as the drive did so as possibly
to avoid repeat by others. Also what, if anything, did any government do ass to possibly avoid
this carnage to eventuate.
35 Weeks before the then Sydney riots I warned the then Prime Minister John Howard of the
likelihood of such problem. But as usual the Government isnt concerned about seeking to avoid
such disasters/carnage rather desires to use it as I view it to encroach upon the rights of ordinary
citizen sunder the pretext of citizens security.
40 When persons gave me the understanding already in the 1990s to contemplate mass murder (as I
then wrote about) then surely anyone doing it now using some religious concept as to justify this
mass murder cannot be deemed to be realistic. What is needed is to look into the real background
issues why would any person be willing to commit suicide/murder/mass murder! And I view
unlikely will we get a coroner to squarely blame the government for its inaction, etc, as after all
45 with the government having access to the courts computer it might perhaps just write the
judgment for the coroner. At least that is the perception that might be created where the
Coroners Court fails to be independent/impartial and government employees or their agents
have access to the submissions made to the coroner.
50 When a person has his motor vehicle impounded by the Sherriffs Office and so may prevent a
person to earn an income to provide for his family, and may in the process also default on
mortgage, etc, and lose this also, and afterwards it is found that it was all wrong then who is
going to compensate this person? That is what we have come to that the Sheriffs Office as
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terrorist are hijacking vehicles under the excuse of enforcing the law when in fact they are not at
all (This as the validity of the Infringement Act and so also the Infringement Court remains
under challenge and as such this applies for all citizens). As such when a person is pursued by
the police then one has to consider the state of mind of the driver being pursued as to past
5 negative experiences with the police if this may have directly/indirectly caused/contributed to the
slaughter of innocent people.
In case this Supplement 8 is kept from you I will publish it also on the internet as well as notify
the media, to ensure it is not concealed from the public.
10
Awaiting your response, G. H. Schorel-Hlavka O.W.B. (Friends call me Gerrit)

MAY JUSTICE ALWAYS PREVAIL

(Our name is our motto!)

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