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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
http://www.theage.com.au/news/Opinion/The-corporatising-of-our-courts/2005/03/23/1111525218521.html
QUOTE
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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INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD
A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0
PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, by fax
0011-61-3-94577209 or E-mail admin@inspector-rikati.com
Page 4
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 ...
https://archive.org/details/LordHewart-TheNewDespotism1929
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. . . .
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
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.
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.
All of which are utterly and directly contrary to the known laws and statutes and freedom of this realm.
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]
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
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.