100825-Governor-General Q Bryce-Re Constitutional Matters-Appointment of Prime Minister-Etc

8/9/2019 100825-Governor-General Q Bryce-Re Constitutional Matters-Appointment of Prime Minister-Etc

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25-8-2010 Page 1 Appointment of Prime Minister, etcPLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website

Http://www.schorel-hlavka.com will be the alternative website for contact details. [email protected]

Her Excellency Ms Quentin Bryce AC 25-8-2010Governor General of the Commonwealth of [email protected].

Ref: various constitutional issues

Appointment of Prime Minister, etc

AND TO WHOM IT MAY CONCERN10.

Madam,as a CONSTITUTIONALIST I consider matters as to the true intention of the Framers of theConstitution irrespective of my personal views and as such not relevant if I am a monarchist,republican or whatever.15.

I understood that a purported constitutional lecturer claimed that the Governor-General is boundto follow the advise of the care taking Prime Minister as to whom to appoint to form aGovernment and also the comments made by governor the Honourable Peter Underwood ACregarding the commission of Honourable David Bartlett by which in his set out that was20published he did refer to a guarantee of passing supply..

The appointment of any Minister of State falls under the prerogative powers of a Governor-General and not being a power as Governor-General in Council as after all Governor-General

may withdraw the commission of any or all of the Ministers of State and so cannot be bound to25follow the advise of a former Minister, etc..While much is argued about constitutional conventions in truth they cannot and will notinterfere with the constitutional frame work. For example a Governor-General may have made anerror in appointment and it then can hardly held that every subsequent Governor-General would30be bound to likewise act in error. What a Governor-General is bound to do is to consider theinterest of the general public! For example if a Minister of war were to advise just before anelection was due to go to war, then the Governor-General has to take into consideration if thisadvise was for no more but political purposes for an election and so should be refused or it isotherwise.35It is not the business of the Governor-General to seek to secure passing of supply because itwould be a gross interference with the political rights of Members of Parliament to decide if theywill or will not pass supply bills.No one could commit any Member of Parliament to give an undertaking to pass supply because itis as like any other Bill before the Parliament subject to constitutional provisions and where then40the Bill fails to pass the second time then a DOUBLE DISSOLUTION is to be called unless theBill is reintroduced with amendments to secure passage.As such, a government may fail to have supply Bills passed but decide to so to say water it downacceptable to more Member of Parliament and so the failure of two previous votes in a Houseitself doesnt require there is a DOUBLE DISSOLUTION. In fact the Framers of the45

Constitution made this very clear that a Bill failing to pass twice might just be abandoned or bemodified subsequently.


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QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) (The Constitution)57 Disagreement between the HousesIf the House of Representatives passes any proposed law, and theSenate rejects or fails to pass it, or passes it with amendments towhich the House of Representatives will not agree, and if after an5interval of three months the House of Representatives, in the sameor the next session, again passes the proposed law with or withoutany amendments which have been made, suggested, or agreed to

by the Senate, and the Senate rejects or fails to pass it, or passes itwith amendments to which the House of Representatives will not10agree, the Governor-General may dissolve the Senate and theHouse of Representatives simultaneously. But such dissolutionshall not take place within six months before the date of the expiryof the House of Representatives by effluxion of time.If after such dissolution the House of Representatives again passes15the proposed law, with or without any amendments which havebeen made, suggested, or agreed to by the Senate, and the Senaterejects or fails to pass it, or passes it with amendments to which theHouse of Representatives will not agree, the Governor-Generalmay convene a joint sitting of the members of the Senate and of the20

House of Representatives.The members present at the joint sitting may deliberate and shallvote together upon the proposed law as last proposed by the Houseof Representatives, and upon amendments, if any, which have beenmade therein by one House and not agreed to by the other, and any25such amendments which are affirmed by an absolute majority ofthe total number of the members of the Senate and House ofRepresentatives shall be taken to have been carried, and if theproposed law, with the amendments, if any, so carried is affirmedby an absolute majority of the total number of the members of the30Senate and House of Representatives, it shall be taken to have beenduly passed by both Houses of the Parliament, and shall bepresented to the Governor-General for the Queens assent.

END QUOTE The Commonwealth of Australia Constitution Act 1900 (UK).35Therefore a supply Bill (Appropriation Bill) must go through the normal channels as any otherBill. In my view it would be an inappropriate interference by any Governor-General to seek todemand a party to guarantee supply bills to be passed, etc..What a Governor-Generals function however is was to ensure that a Minister (Including a Prime40minister) will be acting within the framework of the constitution. As such not permitting a Primeminister so to say pork barrelling more then $400 million but to ensure that matters are

appropriately dealt with through the s.101 Inter-State Commission, which the Framers of theconstitution held must always exist while in fact as I understand it since 1987 hasnt existedbecause governments rather instead abuse and misuse their powers.45As such the Governor-General must look to commission a person for good governance!.We had the Commonwealth legislating for land Tax but then by 1952 having abolished it. Yet,once the Commonwealth commenced to legislate, irrespective it abolished its legislation later,the States (so the Territories as quasi states) therefore no longer have any Land Tax legislative50powers. Yet nothing was done by the Commonwealth to deal with the States/Territoriesunconstitutional Land Tax legislation at least since 1958!.Again; As such the Governor-General must look to commission a person for good

governance!.55


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As we find below the Royal Commission ASSUMED there was legislative powers, albeit theFramers of the Constitution specifically denies legislative powers as to define/declareCITIZENSHIP and clearly the Constitution doesnt provide for a Royal Commission tosomehow amend the meaning or the application of the Constitution. As such again we need aGovernment that is willing to apply the rule of law and not what may suit itself otherwise.5Again; As such the Governor-General must look to commission a person for goodgovernance!

.Reportedly there has been a $50 million cost with the election for candidates of $2.20 per vote,which I submit is unconstitutional regardless what the legislation otherwise may purport. Most10advertising on television at least was about which Prime minister should be elected, this, even sothe electors do not elect Prime ministers or for that any Minister at all as they can constitutionallythat is, only elect representatives to the parliament.The prerogative power of the Governor-General is to decide who will be a ministerial advisorand irrespective if the person is or isnt elected and irrespective of if the person is or isnt in the15majority of a political party.The government cannot dictate legislation as its conduct is o administer the laws of theCommonwealth. Obviously having Government members in the parliament is so they can be held

accountable before the parliament as well as that they may exercise some influence as tolegislation but as E Barton proved he was commissioned for no other purpose but to be able to20form a government and not as to if he were to hold majority of seats in any House of theParliament and neither if he was a political party holder. Indeed, to narrow the appointment of aPrime minister to whom ever is the largest political party is to defy the very rights of a Governor-General to freely determine who shall be the governor-Generals advisors, as that is whatMinisters really are.25.It should be recalled that the First Governor-General commissioned the then Premier of NSW tobecome the First Prime Minister as to form a Government but this was handed back andsubsequently Barton was given the commission and succeeded to form a Government. Hence the

governor-General is to seek to enable to have a government to be formed irrespective of what30number of Ministers are in Parliament. Indeed, Barton was not at the time elected to theParliament, but within sec 64 the governor-General, as was done with E Barton can appoint aMinister (including in this a Prime Minister) even so not elected at the time to the Parliament.Hence, the Governor-General for all I know could say appoint Mr Bob Katter(INDEPENDENT) to form a Government or for that myself, even so I am not a Member of35Parliament.Appropriation bills should like other Bills allow time for passage and any DOUBLEDISSOLUTION and therefore should be say submitted to the Parliament no later then the end ofthe year prior to when the Appropriation Bills are due to come into effect..40

http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=%22thi+act+and+all+law+made+by+the+parliament%22#fn50QUOTE

Constitutional interpretation45

The starting point for a principled interpretation of the Constitution is the

search for the intention of its makers[51].

END QUOTE.Hansard 19-4-1897 Constitution Convention Debates50QUOTE Mr. REID:


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I have looked through the works on the prerogatives of the Crown, and I find that theyreally came as far as anything in these colonies is concerned to the question of the right toassemble, dissolve, and prorogue Parliament, the pardoning of offenders, the issuing ofproclamations, and so on. That is about the whole scope of the prerogatives which [startpage 909] could be exercised under this Commonwealth. In the old country the Queen,5of course, is the supreme head of the Church. That does not apply here. She has thepower of making war or peace. That does not apply here. I am simply referring to thingswithin the reach and range of this Constitution. In reference to the right to assemble,prorogue, and dissolve Parliament, that is always done on the advice and consent of theExecutive Council. The refusal to receive advice is not an executive act at all. An10executive act is something which affects the subjects of the country. The refusal to do

it affects no one, except that it creates a crisis and would probably effect a change of

Ministers.

Mr. BARTON: It is an exercise of the prerogative.

Mr. REID: It is an exercise of the prerogative, which is not an executive act. The refusal15to accept advice does not fall within that category. The carrying out of the steps necessaryfor the assembling or proroguing of Parliament would, and that would be with the advice

and consent of the Executive Council. There is not one appointment in the United Kingdomwhich the Queen makes, but that the counter signature of a Minister of State is required.

Mr. FRASER: How about a dissolution?20

Mr. REID: Supposing Ministers ask for a dissolution, and the Governor says "no";

that is not an executive act. It is a refusal to do an executive act. To issue a proclamationwould be an executive act. This difficulty would not arise. It would leave the independenceof the Governor as to accepting the advice of his Ministers absolutely intact. In Englandnothing can reach the state of an act affecting the subjects, unless there is the signature of a25Minister to it. That is the practice all over the world under similar conditions. So I say that

if the British Constitution were being reduced to black and white, that might be put in. Ifthe British Constitution were being drawn up to-day, the main feature would be that theQueen must act on the advice of responsible Ministers. The moment she does not you haveno constitutional Government at all.30

Mr. SYMON: How about the appointment of Ministers?

Mr. REID: Some Ministers' appointments would have to be countersigned by a

Minister.

Mr. SYMON: That is, the publication only.

Mr. REID: Yes; my honorable friend is quite right. Of course this comes afterwards. By35section 2 of chapter I., Her Majesty would assign that prerogative to the Governor, amongstother prerogatives, which she would assign to him. That prerogative would remain in theGovernor under section 2, chapter I. This executive power and authority of theCommonwealth is something different altogether from the prerogative of the Crown.The executive power and authority of the Commonwealth is a thing which must be40exercised by Ministers. The other is a prerogative matter which is safeguarded by thesection I have referred to.

An HON. MEMBER: What about the dismissal of Ministers?

Mr. REID: Even if Ministers are dismissed, they have to hold office until theirsuccessors are appointed.45


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Mr. KINGSTON: Not dismissed; they resign.

Mr. REID: Yes; they hand in their resignations. But even if His Excellency exercised

the extreme prerogative, and dismissed them-a thing never heard of in these colonies-

supposing the Proclamation had to go out before the new Minister was sent for, couldthe Governor dismiss them without a Minister?5

Mr. SYMON: No; that would be done before the Minister left office.

Mr. REID: Exactly; that was what I was endeavoring to point out. But I do not want topress this matter too strongly, because I quite admit that this Bill, as at [start page 910]present, will ensure that the practice will be carried out. What necessity was there to put inclause 2 that Her Majesty's representative could exercise Her Majesty's prerogative. What10reason was there for it?

Mr. SYMON: No reason at all.

Mr. REID: Well, it is put in. If we safeguard in this unnecessary way the prerogative ofHer Majesty, and the prerogative of the Governor-General, surely we can put in black andwhite the principle of executive action which always is that the Governor shall act with the15

advice of the Executive Council. Why could we not understand all this? What is the use ofputting it in at all? Did it not follow, as a mere matter of course, that if Her Majestyappointed a Governor-General to represent her, he would exercise the powers which shehad and has? However, I do not press my suggestion, because it is practically in theConstitution; but I would point out, that whilst we have been careful to put certain clauses20in the Constitution, I think others are of sufficient importance to be there.

Mr. BARTON: The hon. member has not moved in the matter, and as he admits thatwhat he desires is secured in section 61, which is an adaptation of what is in the SouthAustralian Constitution Act, and is somewhat similar to the Victorian Act, it is just as wellnot to take up much time in debating it. Executive Acts of the Crown are primarily25

divided into two classes: those exercised by the prerogative-and some of those are noteven Executive Acts-and those which are ordinary Executive Acts, where it is

prescribed that the Executive shall act in Council. These are the offsprings of Statutes.The others are Acts so far as they are not affected by Statutes. Now there is no necessity tomake any alteration in this clause. The clause has been drafted in precisely the ordinary30way-it was similarly drafted in 1891-which is simply to express in a document of thischaracter the depository of the Executive power in the kingdom or the Commonwealth.Moreover there is no necessity to add the words:

With the advice of the Governor in Council,

because in a constitution of this kind it is no more possible than it is under the English35Constitution for the prerogative to be exercised as a personal act of the Crown. Theprerogative is never in these days execised as a personal act of the Crown as we understandit, but there are certain acts which have become, either by the gradual march of statute lawor in any other way, nothing but ordinary executive acts and these are expressed to beexerciseable only with the advice of the Executive Council. There are others again which40have not been expressly affected by legislation, and while these remain nominally in theexercise of the Crown they are really held in trust for the people, although they areexercises of the prerogative. This is explained by Dicey in "The Law of the Constitution,"and the extract I will read will be followed with interest by lay as well as by legalmembers.45

Mr. REID: He was writing of an unwritten Constitution.


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Dr. COCKBURN: Hear, hear.

Mr. BARTON: The Constitution of England is not wholly unwritten. A vast body of

it is in statute law, a vast body is unwritten. But let us understand that the ImperialParliament has in all its drafting of the Colonial Constitutions drawn the distinction. Yet itis understood that the Crown exercises the prerogative only upon ministerial advice, and it5is exercised not personally by the Crown, but only with the advice of the Ministry or aMinister. Every Constitution is explicit on that point. You do not find it anywhere in the

Australian Constitutions nor in the Canadian Constitution, which is written like this, thatthere there is a prerogative act expressed to be exercised with the consent of the ExecutiveCouncil.10

[start page 911]

But we all know that it is exercised with the advice of those who must answer to thepeople. The point of the matter is that where the expression of the Act is in the formcommonly used to indicate prerogative act-that is without the addition of the words, "inCouncil"-that does not indicate any real personal power in the depositary of the Crown's15authority. That is made clear by the passage I am about to read, and it applies just as

strongly to written Constitutions as to those Constitutions which are partly written andpartly unwritten. Dicey says:

The survival of the prerogative, conferring as it does wide discretionary authority upon theCabinet, involves a consequence which constantly escapes attention.20

The survival of the prerogative really means that where the prerogative act is to beexercised the Cabinet meets, and the Governor or the Queen cannot for a moment intrude.The Cabinet, of course, is not expressed in any Constitution, but it is one of the livingpowers which must exist in such a Constitution as this. The Cabinet meets andsomething is determined, or where the Act does not require the assistance of the Cabinet,25the Minister determines to do it. In both these eases a formal resolution is passed by theExecutive Council with the Governor as chairman, or, when he is not there, with the

vice-president as chairman. That act is approved, and becomes the act of the Crown;indeed, that process is the same where the act is the exercise of the prerogative, or where itrelates to one of those duties which is to be performed by the Governor or Queen in30Council. Dicey goes on:

END QUOTE.

Again; As such the Governor-General must look to commission a person for goodgovernance!35

.

HANSARD 17-3-1898 Constitution Convention DebatesQUOTE

Mr. DEAKIN.- In this Constitution, although much is written much remains40unwritten,

END QUOTE.

Hansard 8-2-1898 Constitution Convention Debates

QUOTE Mr. BARTON.-45Under a Constitution like this, the withholding of a power from the

Commonwealth is a prohibition against the exercise of such a power.END QUOTE

.


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This correspondence will also be published by me in my books in the INSPECTOR-RIKATIseries on certain constitutional and other legal issues and as such have included at times lengthyquotations so that besides you the reader can become familiar with what the Framers of theConstitution debated..5The Commonwealth of Australia Constitution Act 1900 (UK) (The Constitution) is theconstitution that ultimately determines the rights, privileges, duties, etc of ever person within theboundaries of the Commonwealth of Australia.

.QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Covering clauses10

2 Act to extend to the Queens successorsThe provisions of this Act referring to the Queen shall extend toHer Majestys heirs and successors in the sovereignty of the UnitedKingdom.

END QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Covering clauses15.

QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Chapter IITheExecutive Government

61 Executive powerThe executive power of the Commonwealth is vested in the Queen20and is exercisable by the Governor-General as the Queensrepresentative, and extends to the execution and maintenance ofthis Constitution, and of the laws of the Commonwealth.

62 Federal Executive CouncilThere shall be a Federal Executive Council to advise the25Governor-General in the government of the Commonwealth, andthe members of the Council shall be chosen and summoned by theGovernor-General and sworn as Executive Councillors, and shallhold office during his pleasure.

63 Provisions referring to Governor-General30The provisions of this Constitution referring to the

Governor-General in Council shall be construed as referring to theGovernor-General acting with the advice of the Federal ExecutiveCouncil.64 Ministers of State35The Governor-General may appoint officers to administer suchdepartments of State of the Commonwealth as theGovernor-General in Council may establish.Such officers shall hold office during the pleasure of theGovernor-General. They shall be members of the Federal40Executive Council, and shall be the Queens Ministers of State forthe Commonwealth.After the first general election no Minister of State shall hold office

for a longer period than three months unless he is or becomes asenator or a member of the House of Representatives.45

QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Chapter IITheExecutive Government.

Again; As such the Governor-General must look to commission a person for goodgovernance!50.

It would therefore be an abuse of the Governor-Generals prerogative powers

to seek to appoint a Prime Minister with somehow seeking to compel anyone

in the parliament to forgo his./her right to vote on a Bill (including supply

Bills) merely as to secure some kind of appointment for Prime Minister. It55


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would be an unconstitutional interference by the Governor-General as to the

rights of elected Members of Parliament...In my view what can be considered by a Governor-General is if the electors in a poll did or5didnt seem to approve upon the conduct of a certain person.As such where for Example Ms Julia Gillard was appointed Prime Minister but the electors in

drives decided not to re-elected many Australian labour party representatives to the parliamentwhere as the coalition had a surge of people now voting for its representatives to be in theParliament then this may be translated into a perception that the electors didnt like the kind of10government that existed at the time and expressed its opposition as to instead reduces the ALPrepresentation in the parliament. MAs such, the governor-General is entitled to consider if the electors in their limited way appearedto show a disapproval to warded the way the ALP dominated government was conducting itself.The governor-General is not to be swayed by certain political policies in the political campaign15unless they are issues that goes to the heart of constitutional issues..For example the issue of climate change is a trouble some one. Constitutionally either the

States or the Commonwealth can legislate for this but not both and yet we have this disarray oflegislation where we even have the unconstitutional level of so called local government20referring to municipal and shire councils also charging for environment issues and so electors areslugged three times even so constitutionally they only van be charged by one level ofGovernment.Again; As such the Governor-General must look to commission a person for goodgovernance!25.I could refer to numerous other issues besides what I refer to below but what ought to be clear isthat there is a total disorganisation about what is or isnt applicable and what is or isntconstitutional permissible and as such what should be done is the Governor-General to appoint a

person who will actually govern for what is constitutionally permissible. In fact were the30Governor-General fail to ensure such a person is appointed then the Governor-General can bedeemed to have acted with disregard to the rights of the general community.Again; As such the Governor-General must look to commission a person for goodgovernance!.35Therefore a Governor-General has an obligation to ensure that those who are appointed asadvisors are competent to do so and not merely are those some political party may submit asagain this is not where the Governor-General acts as Governor-General in council to act uponthe advise of Ministers but where the constitutional liberty of the Governor-General is to so tosay appoint the best man for the job!40

Again; As such the Governor-General must look to commission a person for goodgovernance!

.In the about 30 years of experiences in litigation as a Professional Advocate, Attorney,CONSTITUTIONALIST, etc, and Author and publisher of books in the INSPECTOR-45RIKATI series on certain constitutional and other legal issues I found time and time again asheer frustration by people where they were denied their constitutional rights and no propersystem exist to ensure constitutional rights are not eroded. The OFFICE-OF-THE-GUARDIAN is precisely (as set out below) to ensure that all people, including politicians,Governor, Governor-General, judges, etc are provided with the same information as to their50constitutional rights, obligations, etc. Much disenchantment by the people relates to the allpowerful government using taxpayers monies to hire expensive lawyers no matter how much it isin the wrong against people who seek no more but to preserve their constitutional rights. The


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OFFICE-OF-THE-GUARDIAN is to be the vehicle that can avoid much of this kind oflitigation in the first place to make people and so also the government and judges aware of whatis constitutionally permissible and applicable..Hence we need a person to be appointed Prime Minister who regardless of political views and5position will finally set in motion the creation of this OFFICE-OF-THE-GUARDIAN as anINDEPENDENT advisory body and not merely that the Constitutional Policy Unit currently inplace are going along with whatever the Government of the Day may dictate, as now appears tome to be how it operates.Again; As such the Governor-General must look to commission a person for good10governance!

.As such the Governor-General must act wisely to commission a person to form a governmentthat is not based upon political party lines but is one to serve as advisors as to within the conceptof the constitutional meanings and application. Hence being it Bob Katter, myself or for that15anyone else if the person has the ability to provide for good governance within the meaningand application of the constitution then I have no doubt the parson will be able to form agovernment even if it means drawing members of different political parties together to serve as a

combined government. Indeed, such as kind of government may serve more stable then a singlepolitical party government because a larger spectrum of Members of Parliament then can have20some kind of input to the operations of the government and are more likely then to vote forlegislation this kind of government may desire to be put in place..Currently the constitution is eroded by the so called two-party system and it is well overdue thata Governor-General stop this rot and exercise real prerogative powers for the purpose: to25commission a person for good governance!

.As such not some idealistic political hothead who wants to try to abuse and misuse his/herpowers to try to turn the Commonwealth of Australia into some republic, etc!

.30 Despite the push by republicans and even the High Court of Australia (Sue v Hill) theCommonwealth of Australia is and will always remain a POLITICAL UNION of thecolonies/province now called States and it is outside the ambit of s.128 to amend this as clause 2is not part of the constitution itself and neither the pre-amble and hance beyond s.128 referendumpowers to be amended.35.

Hansard 2-3-1898 Constitution Convention DebatesQUOTE

Mr. SYMON ( South Australia ).-In the preamble honorable members will find that what we desire to do is to unite in one40indissoluble Federal Commonwealth -that is the political Union-"under the Crown of theUnited Kingdom of Great Britain and Ireland , and under the Constitution herebyestablished." Honorable members will therefore see that the application of the wordCommonwealth is to the political Union which is sought to be established. It is not intendedthere to have any relation whatever to the name of the country or nation which we are going45to create under that Union . The second part of the preamble goes on to say that it isexpedient to make provision for the admission of other colonies into the Commonwealth.That is, for admission into this political Union, which is not a republic, which is not to

be called a dominion, kingdom, or empire, but is to be a Union by the name of"Commonwealth," and I do not propose to interfere with that in the slightest degree.50

END QUOTE.

I defeated comprehensively the Commonwealth of Australia after a 5-year epic legal battle on 19July 2006 on all constitutional issues I raised including that Australians are and remain to be


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Subjects of the British Crown and it is beyond constitutional powers for the Commonwealthof Australia to interfere with this..

QUOTE 7-1-2010 CORRESPONDENCE

Australian Government5Department of the Prime Minister and Cabinet

ONE NATIONAL CIRCUITBARTON

Reference: c09/5441810

Mr Gerrit Schorel-Hlavka107 Graham RoadVIEWBANK VICTORIA 3084

15Dear Mr Schorel-Hlavka

Thank you for your email of 24 October 2009 to the Prime Minister regarding theCommonwealths power to legislate over citizenship. I have been asked to reply on thePrime Ministers behalf. I apologise for the delay in doing so.20

Australian citizenship is defined in the Australian Citizenship Act 2007. Ordinarily, theGovernment does not disclose its legal advice, including on constitutional issues, I referyou, however, to the following passage from paragraph 4,179 of the Final Report of theConstitutional Commission, 1988:25

While the Federal Parliament has not been granted an express power to make laws

with respect to nationality and citizenship, it has been assumed that the Parliament

does have such a power. The power is either implied in section 51(xix) [of the

Constitution] or is one of the implied national powers. Its exercise by the Federal30 Parliament, by enactment of the Australian Citizenship Act 1948 has certainly notbeen called into question in any case before the High Court of Australia.

Yours sincerely

Brendan MacDowell35A/g Assistant SecretaryLegal Policy Branch7 January 2010

QUOTE 7-1-2010 CORRESPONDENCE.40Hansard 27-1-1898 Constitution Convention Debates

QUOTESir JOHN DOWNER.-Nothing should be too easy. We have the power to alter the

Constitution, but it is a power that can only be exercised with great difficulty.END QUOTE45.

Hansard 31-1-1898 Constitution Convention Debates (Official Record of the Debates of theNational Australasian Convention)QUOTE Mr. SOLOMON.-

We shall not only look to the Federal Judiciary for the protection of our interests, but50also for the just interpretation of the Constitution:

END QUOTE.


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I can assume to be governor-General but that doesnt make me to be the governor-General.Likewise the Royal Commission could assume whatever but it doesnt alter the meaning andapplication of the constitution. The only manner the constitution can be amended is that theelectors are requested to vote on a proposal to amend the constitution and then the electors canveto or approve the amendment. There is no power for the High Court of Australia to amend by5judgments the meaning and application of the constitution as it is beyond its judicial powers todo so. As the Framers of the Constitution made clear the High Court of Australia could onlyinterpret the intentions of the Framers of the Constitution and if it was to adjudicate that therewas a certain power existing then it simply always existed. As such, the notion in Sue v Hillthatover time there was a change is not constitutionally viable because either it never was there or10always was there but gradual changes cannot be applied..

It must be clear that the terminology used by the Framers of the Constitution are; Britishsubject, to make persons subjects of the British Empire., with the consent of theImperial authority, What is meant is a dual citizenship in Mr. Trenwith and myself. That15is to say, I am a citizen of the state and I am also a citizen of the Commonwealth; that is thedual citizenship., we are all alike subjects of the British Crown. We have a High Court ofAustralia that appears to me being political motivated to try to alter the Constitution by stealthby endorsing a substitute Constitution!.20Hansard 2-3-1898 Constitution Convention Debates

QUOTE

Mr. SYMON.-Very likely not. What I want to know is, if there is anybody who willcome under the operation of the law, so as to be a citizen of the Commonwealth, whowould not also be entitled to be a citizen of the state? There ought to be no opportunity for25such discrimination as would allow a section of a state to remain outside the pale of theCommonwealth, 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 maybe 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 citizenship30 meant. What is meant is a dual citizenship in Mr. Trenwith and myself. That is to say,I am a citizen of the state and I am also a citizen of the Commonwealth; that is thedual citizenship. That does not affect the operation of this clause at all. But if we introducethis clause, it is open to the whole of the powerful criticism of Mr. O'Connor and those whosay that it is putting on the face of the Constitution an unnecessary provision, and one35which we do not expect will be exercised adversely or improperly, and, therefore, it ismuch better to be left out. Let us, in dealing with this question, be as careful as we possibly,can that we do not qualify the citizenship of this Commonwealth in any way or excludeanybody [start page 1764] from it, and let us do that with precision and clearness. As acitizen of a state I claim the right to be a citizen of the Commonwealth. I do not want40

to place in the hands of the Commonwealth Parliament, however much I may beprepared to trust it, the right of depriving me of citizenship. I put this only as anargument, because no one would anticipate such a thing, but the CommonwealthParliament might say that nobody possessed of less than 1,000 a year should be a citizenof the Federation. You are putting that power in the hands of Parliament.45

Mr. HIGGINS.-Why not?

Mr. SYMON.-I would not put such a power in the hands of any Parliament. We mustrest this Constitution on a foundation that we understand, and we mean that everycitizen of a state shall be a citizen of the Commonwealth, and that the Commonwealth

shall have no right to withdraw, qualify, or restrict those rights of citizenship , except50

with regard to one particular set of people who are subject to disabilities, as aliens,and so on.


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the Governor-General travels outside the boundaries of the Commonwealth of Australia thenhe/she must have appointed a deputy who for the time of the absenteeism executes all duties andobligations ordinary associated with the Office of the Governor-General and is for this paid forby the Governor-General. The constitution does not permit for the payment of two or moreGovernor-Generals, under whatever title he/she might be known.5It also means that the Governor-General leaving the boundaries of the Commonwealth ofAustralia cannot draw any expenses associated with that travel because the deputy in the seat toconduct the affairs of the Governor-General would instead incur the expenses associated withofficial business..10HANSARD 26-3-1897 Constitution Convention DebatesQUOTE Mr. HOLDER:

To the State everything that is local and relating to one State, to the Federal powereverything that is national and of inter-State importance. I pass from these two generalprinciples to a discussion of the only other preliminary I shall have to touch, and that is the15question of the appointment of the representative of the British Crown in the person of theGovernor-General. I do not take it that the words of the Enabling Act requiring us to framea Constitution for a Federation "under the Crown" bind us in the matter of whether or notwe shall elect our own Governor-General, because I take it that the legal bonds whichbind us to the mother-country, to the great British Empire,20

END QUOTE.

Hence, unless the governor-General was appointed by Her Majesty upon recommendation of theHome Office, at 10 Downing Street, and was British Islands (UK) national any otherappointment has no legal value and any bills presented for Royal Assent never was given so if25the Governor-General was not validly appointed..

QUOTEMr. HOLDER: Yes, of course; the Commission from Her Majesty lies dormant until it

is actually called into existence by the absence of the Governor; but we can at this moment,30

if the necessity arises, appoint a new occupant to the Supreme Court Bench, and that wouldqualify him to fill the office of Acting-Governor if need required it. Therefore I think it isclear that to that extent it lessens the argument that the main link that binds us to themother-country is the appointment of the Governor, and shows that it is an argument whichhas not half so much weight as some of the speakers would have us believe. But I take a35very strong position against the election of the Governor-General by the Federation, notbecause I believe it would mean losing a link which binds us to England, but that we shouldhave a man of such power and authority, derived directly from the people, that he wouldcertainly clash with the other powers and authorities we propose to set up under this

Constitution.40END QUOTE

.HANSARD 26-3-1897 Constitution Convention Debates

QUOTE Mr. LYNE:First of all, he raised the question of the appointment of the Governor-General for the45Federal Executive. Now, I think there is no desire on the part of any large section of

this community to take what I may term the first step towards a severance from themother-country, but the first step would be in the election of the Governor-General

instead of allowing his appointment to be made by the Home Government. It is but a

small connecting link between the Australasian colonies-between a Federated50Australia and the mother-country-to allow the appointment to be made by the Home

Government; and I should like to know what power that Government would have

over any Governor-General elected in the manner desired.END QUOTE


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.


QUOTE

Mr. ISAACS.-I am not prepared to answer that question, but when we look at clause 52we find these governing words on the very forefront of that clause-5

That Parliament shall, subject to the provisions of this Constitution, have full powerand authority to make laws for the peace, order, and good government of the

Commonwealth.

We see there that the Commonwealth is named as distinguished from the states .END QUOTE10.

This correspondence will be far too extensive to include all relevant details but it should be clearthat for anyone to ensure there is a democracy then this person must act in accordance as to whatis constitutionally permissible and applicable.We have a Minister Kate Ellis as Minister for Youth, just that no such constitutional power is15existing for the Commonwealth. The problem with this position as well as others is that there isno proper constitutional advisory body existing that scrutinise first all legislative proposals as toit being constitutionally valid and permissible so that each Member of Parliament who is to voteon a Bill or amendment of a Bill (proposed law) has the advise as to if the proposed Bill isconstitutionally permissible or not. For this the OFFICE-OF-THE-GUARDIAN is to be the20constitutional advisory council as to ensure that all Members of Parliament, all citizens, alljudges, etc, are provided with the same information regardless of their political colours..

Hansard 20-4-1897 Constitution Convention DebatesQUOTE Mr. HIGGINS:25

I think it is advisable that private people should not be put to the expense of having

important questions of constitutional law decided out of their own pockets.

END QUOTE.

Hansard 31-1-1898 Constitution Convention Debates (Official Record of the Debates of the30National Australasian Convention)QUOTE Mr. SOLOMON.-

Most of us, when we were candidates for election to the Federal Convention, placedgreat stress upon it as affording a means of bringing justice within easy reach of the

poor man.35END QUOTE.

The OFFICE-OF-THE-GUARDIAN is to be the GUARDIAN OF THE CONSTITUTIONas the High Court of Australia simply fails to be so. Judges are appointed to the High Court ofAustralia who may have next to know knowledge about constitutional issues and indeed a Judge40

refused to hand down a judgment upon the basis that he didnt know the constitutional issue..

The High Court of Australia in regard of s.64 allowed the Governor-General to appoint a rangeof secretaries to Ministers this even so the Framers of the Constitution specifically made clearthat the reason there had to be a Minister over a Department was so that the Minister was the sole45person responsible to the Parliament. Hence, the term Responsible Minister. The momentthere is a secretary to the Minister or by whatever other title a person is appointed then this isunconstitutional because it removed the sole responsibility of the Minister..

Mr Ken Henry is known as the head of the Treasury, but the constitutional application of the50Minister of the treasury (referred to as the treasurer) is that he and he alone is the head of theDepartment and no other person. You cannot therefore have a Head of a Department being apublic servant below a Minister because the Constitution doesnt permit this..


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We have found lately a sting of failures such as the death in regard of the insulation fiasco butreality is that there was no constitutional powers to fund the insulation scheme. There is noconstitutional powers for an ETS scheme and there is no constitutional power for this SUPERTAX as is proposed. We had the former Prime Minister Kevin Rudd having his SORRY DAYspeech but in reality it proved to be hollow words because he continued unabated with the5unconstitutional Northern Territory Intervention Act against Aboriginals..

Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the

National Australasian Convention)QUOTE10

Mr. HOLDER.-A measure would be valid while it was a Bill, and invalid when itbecame a law.

Mr. ISAACS.-That is a very terse and correct way of putting it, and it proves theabsurdity of the provision. We are, in my opinion, making the Senate too strong a body. Toallow these matters to be carried into the Supreme Court is to say that the Senate cannot15protect itself, and that the states cannot protect themselves. Surely that is not to be thoughtof for a moment. We want a people's Constitution, not a lawyers' Constitution. Weshall be making the Supreme Court, not the master, but the tyrant of the Constitution, by

inserting a clause of this kind. I do strongly appeal to my honorable friends to alter theclause in some way.20

END QUOTE.

Lawyers interpret the constitution as a lawyer but as a CONSTITUTIONALIST I interpret theconstitution to the intentions of the Framers of the Constitution. That is also why I socomprehensively defeat the Commonwealth of Australia in litigation.25The appointment of Ms Julia Gilliard as I understood you to say was within s.64 and s.65 of theconstitution to the Office of the Prime Minister and again I urge you to consider the true meaningand application of the constitution. While many a person claims that there can be no PrimeMinister because there is no reference of Prime Minister in the constitution the truth is that the

Framers of the Constitution extensively did debate there being a Prime Minister. However, the30Prime minister is one who is commissioned by the governor-General to get together a body ofpeople to acts as Government under the supervision of the Governor-General. The Governor-General is the Chief Executive Officer (CEO) of the Commonwealth of Australia and if aMinister is failing to fulfil his/her duties then the Governor-General must take decisive action toaddress this albeit without getting involved in political issues.35It should be understood that the Governor-General has no constitutional powers to act beyond theboundaries of the Commonwealth of Australia and when leaving these boundaries must have aperson appointed, paid for by the Governor-General) who takes care of duties. There can not bethat a Governor-General so to say is taking a trip overseas at taxpayers expenses because that isnot permissible under the constitution.40

I am well aware that there are people who are so to say blowing the horn of establishing arepublic but what they then do is to give a clear sign that they cannot be trusted as republicanswhere they are unconstitutionally charging taxpayers for cost that is constitutionally notpermissible to be charged to the taxpayers (Consolidated Revenue funds).Likewise this spending of a reported in excess of $400 million by the Office of the Prime45Minister is unconstitutional. It is nothing less then pork barrelling and this too isunconstitutional. As a matter of fact so is all and any payments to former Governor-Generals andformer Ministers. And former Members of Parliament as once they loose their seat then it stopsany further payments. A Member of Parliament is not permitted to receive a salary as theConstitution only allows for a allowance and only while a Member of Parliament is actually a50sitting Member of Parliament..


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QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Part IVBoth Housesof the Parliament

48 Allowance to membersUntil the Parliament otherwise provides, each senator and eachmember of the House of Representatives shall receive an5allowance of four hundred pounds a year, to be reckoned from theday on which he takes his seat.

END QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Part IVBoth

Houses of the Parliament.10The following will also make clear that the Framers of the Constitution intended to have CIVILRIGHTS and LIBERTIES principles embedded in the Constitution;HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates ofthe National Australasian Convention)QUOTE Mr. CLARK.-15

for the protection of certain fundamental rights and liberties which every individualcitizen is entitled to claim that the federal government shall take under its protection andsecure to him.

END QUOTE

.20 HANSARD18-2-1898 Constitution Convention Debates (Official Record of the Debates ofthe National Australasian Convention)QUOTE Mr. ISAACS.-

The right of a citizen of this great country, protected by the implied guarantees of itsConstitution,25

END QUOTE.

QUOTEMr. HIGGINS.-But suppose they go beyond their power?

30

Mr. GORDON.-It is still the expression of Parliament. Directly a Ministry seeks toenforce improperly any law the citizen has his right.END QUOTE.

Well, as indicated the way everything operates the republicans if anything are showing to35electors that they are out to misuse and abuse their powers even further. The ongoing rorting iscontinuing and allowed to do so because of the lack of legal accountability and hence the needfor the OFFICE-OF-THE-GUARDIAN..

QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Clause 940The Constitution9 Constitution [see Note 1]

The Constitution of the Commonwealth shall be as follows:The ConstitutionThis Constitution is divided as follows:45Chapter IThe ParliamentPart IGeneralPart IIThe SenatePart IIIThe House of RepresentativesPart IVBoth Houses of the Parliament50Part VPowers of the ParliamentChapter IIThe Executive GovernmentChapter IIIThe JudicatureChapter IVFinance and TradeChapter VThe States55Chapter VINew States


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Chapter VIIMiscellaneousChapter VIIIAlteration of the ConstitutionThe Schedule

END QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Clause 9.5QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Part IGeneral

2 Governor-GeneralA Governor-General appointed by the Queen shall be Her

Majestys representative in the Commonwealth, and shall have andmay exercise in the Commonwealth during the Queens pleasure,10but subject to this Constitution, such powers and functions of theQueen as Her Majesty may be pleased to assign to him.

3 Salary of Governor-GeneralThere shall be payable to the Queen out of the ConsolidatedRevenue fund of the Commonwealth, for the salary of the15Governor-General, an annual sum which, until the Parliamentotherwise provides, shall be ten thousand pounds.The salary of a Governor-General shall not be altered during hiscontinuance in office.

4 Provisions relating to Governor-General20

The provisions of this Constitution relating to theGovernor-General extend and apply to the Governor-General forthe time being, or such person as the Queen may appoint toadminister the Government of the Commonwealth; but no suchperson shall be entitled to receive any salary from the25Commonwealth in respect of any other office during hisadministration of the Government of the Commonwealth.

END QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Part IGeneral.

HANSARD 6-3-1891 Constitution Convention Debates (Official Record of the Debates of30the National Australasian Convention)QUOTE

Sir SAMUEL GRIFFITH: At all events, I would ask hon. members to pause before theydetermine upon asking the Queen to surrender all her prerogatives in Australia. For mypart, I believe that all the prerogatives of the Crown exist in the governor-general as35far as they relate to Australia. I never entertained any doubt upon the subject at all-that isso far as they can be exercised in the commonwealth.

END QUOTE.

HANSARD 24-3-1897 Constitution Convention Debates (Official Record of the Debates of40the National Australasian Convention)QUOTE

Mr. O'CONNOR: I should certainly be altogether opposed to enacting anything inthe Constitution which would make either House at any time merely subservient tothe purposes of any Government, (Hear, hear.) The public interest stands higher than that.45My only reason for proposing this mechanical method of getting rid of the difficulty is thatit is to the public interest that the country should have the question settled one way or theother.

END QUOTE.50Hansard 6-3-1891 Constitution Convention DebatesQUOTE Mr. THYNNE:

I shall quote from Mr. Dicey's recent work, which is very clear in its language. He says:


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One of the characteristics of a federation is that the law of the constitution must be

either legally immutable or else capable of being changed only by some authority

above and beyond the ordinary legislative bodies, whether federal or state

legislatures, existing under the constitution.

END QUOTE5.

END QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Chapter IITheExecutive Government

61 Executive powerThe executive power of the Commonwealth is vested in the Queen10and is exercisable by the Governor-General as the Queensrepresentative, and extends to the execution and maintenance ofthis Constitution, and of the laws of the Commonwealth.

62 Federal Executive CouncilThere shall be a Federal Executive Council to advise the15Governor-General in the government of the Commonwealth, andthe members of the Council shall be chosen and summoned by theGovernor-General and sworn as Executive Councillors, and shallhold office during his pleasure.

63 Provisions referring to Governor-General20The provisions of this Constitution referring to theGovernor-General in Council shall be construed as referring to theGovernor-General acting with the advice of the Federal ExecutiveCouncil.

64 Ministers of State25The Governor-General may appoint officers to administer suchdepartments of State of the Commonwealth as theGovernor-General in Council may establish.Such officers shall hold office during the pleasure of theGovernor-General. They shall be members of the Federal30Executive Council, and shall be the Queens Ministers of State forthe Commonwealth.

Ministers to sit in Parliament

After the first general election no Minister of State shall hold officefor a longer period than three months unless he is or becomes a35senator or a member of the House of Representatives.

65 Number of MinistersUntil the Parliament otherwise provides, the Ministers of Stateshall not exceed seven in number, and shall hold such offices as theParliament prescribes, or, in the absence of provision, as the40Governor-General directs.66 Salaries of Ministers

There shall be payable to the Queen, out of the ConsolidatedRevenue Fund of the Commonwealth, for the salaries of theMinisters of State, an annual sum which, until the Parliament45otherwise provides, shall not exceed twelve thousand pounds ayear.

END QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Chapter IITheExecutive Government.50The above makes it very clear that a Minister can only be appointed to serve the British Crownand to serve as an advisor of the Governor-General. However, the ministers are entitled tooperate their Departments as they deem appropriate within constitutional and any legislativepowers provided for this. A considerable difference then the UK Minister who is not bound by

for the peace, order and good government, as Australian Ministers are.55.


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Hansard 6-4-1897 Constitution convention Debates (Official Record of the Debates of theNational Australasian Convention)QUOTE

Sir SAMUEL GRIFFITH: I am trying to get at the ideas which are underlying theargument of hon. gentlemen. I confess I have not got at them yet. The hon. member, Mr.5Deakin, talks about the powers exercised by the ministers of the Crown in Great

Britain. They do not differ in any respect from the powers exercised by ministers of the

Crown in any other country.

Dr. COCKBURN: They are much superior to the powers of ministers here!

Sir SAMUEL GRIFFITH': Not in the east.10

Mr. DEAKIN: The powers of our ministers are limited, and theirs are unlimited!

END QUOTE.


QUOTE Sir EDWARD BRADDON.-15

When we consider how vast the importance is that every word of the Constitutionshould be correct, that every clause should fit into every other clause; when weconsider the great amount of time, trouble, and expense it would take to make any

alteration, and that, if we have not made our intentions clear, we shall undoubtedly

have laid the foundation of lawsuits of a most extensive nature, which will harass the20people of United Australia and create dissatisfaction with our work, it must be evident

that too much care has not been exercised.END QUOTE.

Hansard 8-2-1898 Constitution Convention Debates25QUOTE

Mr. OCONNOR (New South Wales).-The honorable and learned member (Mr. Isaacs)is I think correct in the history of this clause that he has given, and this is [start page 672]one of those instances which should make us very careful of following too slavishly theprovisions of the United States Constitution, or any other Constitution. No doubt in putting30together the draft of this Bill, those who were responsible for doing so used the materialthey found in every Constitution before it, and probably they felt that they would beincurring a great deal of responsibility in leaving out provisions which might be in the leastdegree applicable. But it is for us to consider, looking at the history and reasons for theseprovisions in the Constitution of the United States, whether they are in any way applicable;35and I quite agree with my honorable and learned friend (Mr. Carruthers) that we should bevery careful of every word that we put in this Constitution, and that we should have no

word in it which we do not see some reason for. Because there can be no question that intime to come, when this Constitution has to be interpreted, every word will be weighed andan interpretation given to it; and by the use now of what I may describe as idle words which40we have no use for, we may be giving a direction to the Constitution which none of us nowcontemplate. Therefore, it is incumbent upon us to see that there is some reason for everyclause and every word that goes into this Constitution.

END QUOTE.45Hansard 2-3-1898 Constitution Convention Debates

QUOTE Mr. BARTON.

If we are going to give the Federal Parliament power to legislate as it pleases with

regard to Commonwealth citizenship, not having defined it, we may be enabling the

Parliament to pass legislation that would really defeat all the principles inserted50


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elsewhere in the Constitution, and, in fact, to play ducks and drakes with it. That is

not what is meant by the term "Trust the Federal Parliament."

END QUOTE.

Part VPowers of the Parliament551 Legislative powers of the Parliament [see Notes 10 and 11]The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good

government of the Commonwealth with respect to:QUOTE(xxix) external affairs;10

END QUOTE.

There appears to be a gross misunderstanding as to what external affairs actually allows for.The Framers of the Constitution made clear that this would permit the Commonwealth ofAustralia to have powers to deal with other nations in regard of matters it had already existing15powers for. As such, external affairs allows it to deal with matters of aliens,telecommunication, trade and commerce and other powers listed within s.51 of the constitution,however take for example the issue of sport and there is a Minister for Sport even so this is not aconstitutional power, hence any appointment (commission) for a Minister of sport isunconstitutional. One cannot merely turn external powers a one for all power base because as20the Framers of the Constitution stated;.


QUOTEMr. WISE.-If the Federal Parliament chose to legislate upon, say, the education25

question-and the Constitution gives it no power to legislate in regard to that question-theMinisters for the time being in each state might say-"We are favorable to this law, becausewe shall get 100,000 a year, or so much a year, from the Federal Government as a subsidyfor our schools," and thus they might wink at a violation of the Constitution , while noone could complain. If this is to be allowed, why should we have these elaborate30provisions for the amendment of the Constitution? Why should we not say that theConstitution may be amended in any way that the Ministries of the several colonies

may unanimously agree? Why have this provision for a referendum? Why consult the

people at all? Why not leave this matter to the Ministers of the day? But the proposal

has a more serious aspect, and for that reason only I will ask permission to occupy a35few minutes in discussing it.

END QUOTE.

The mere fact that the Constitution provides for certain legislative powers means that externalaffair powers must be read within that power structure and not beyond. As such where there is no40provision for a sport legislative power then external affairs powers cannot overcome this. Hence,

no validity in appointment of a Minister for Sport because the governor-General is bound by theconstitution as much as anyone else..

QUOTE452 Governor-GeneralA Governor-General appointed by the Queen shall be HerMajestys representative in the Commonwealth, and shall have andmay exercise in the Commonwealth during the Queens pleasure,but subject to this Constitution, such powers and functions of the50Queen as Her Majesty may be pleased to assign to him.

END QUOTE.

What we have therefore is that any appointment (commission) purportedly given by thegovernor-General in regard of a portfolio that is unconstitutional then the commission likewise55


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remains unconstitutional. More over, where the salaries of the Ministers are payable to the queenthen the Queen bound by the constitution can only be paid for salaries of Ministers that arecommissioned to serve as advisors to the Governor-General according to what is constitutionallypermissible. Likewise the payment of the governor-General is payable to the Queen..5When a company engages a check out chick (cash register attendance) then it would be absurdfor this person to take out of the till her own wages as she ultimately has to wait for the employerto pay her. Likewise a Minister/Governor-General cannot be paid out of Consolidated Revenue

Funds directly as the payment must be made to Her Majesty the queen and it is up to theMonarch to then decide how much she pays the Minister/Governor-General in what manner. The10moment a Mini9ster/Governor-General leaves office then no further payments can be made outof the consolidated Revenue Funds to the Queen, albeit the queen may desire to fund the formerMinister/Governor-General out of her own pocket but that is nothing to do with Australiantaxpayers. Indeed, Sir Grey was a Governor-General of South Africa and later became PrimeMinister of New Zealand and surely Her majesty wasnt going to provide him with a pension of15one and later an additional pension for another. Her Majesty is entitled to appoint anyonesubsequently of having served as a Governor-General to serve elsewhere in the Monarchy asGovernor-General and it could hardly be held that each country had to pay this person then witha lifetime pension. As such, the moment a Governor-General/Governor/Minister seizes to occupythe office previously held then all payments come to an end.20The moment a Member of Parliament seizes to hold a seat in the Parliament then all payment ofallowances stop. Any Member of Parliament who is not otherwise self employed or employedand neither holds a office as a Minister is technically unemployed as the allowance is not andnever can be deemed to be a salary as it is an allowance..25QUOTE

66 Salaries of MinistersThere shall be payable to the Queen, out of the ConsolidatedRevenue Fund of the Commonwealth, for the salaries of theMinisters of State, an annual sum which, until the Parliament30

otherwise provides, shall not exceed twelve thousand pounds ayear.

67 Appointment of civil servantsUntil the Parliament otherwise provides, the appointment andremoval of all other officers of the Executive Government of the35Commonwealth shall be vested in the Governor-General inCouncil, unless the appointment is delegated by theGovernor-General in Council or by a law of the Commonwealth tosome other authority.

END QUOTE40.

QUOTE

3 Salary of Governor-GeneralThere shall be payable to the Queen out of the ConsolidatedRevenue fund of the Commonwealth, for the salary of the45Governor-General, an annual sum which, until the Parliamentotherwise provides, shall be ten thousand pounds.The salary of a Governor-General shall not be altered during hiscontinuance in office.

END QUOTE50.

A public servant can only serve the Government within the provisions of the constitution and assuch no public servant can serve in the public service of the Commonwealth within some

Department of Sport or Department of Youth because those are not constitutionally validdepartment. The Department of the Aged is a valid Department. The Department of Water and55


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Environment is not because the framers of the Constitution made clear that this was to remainwith the States..

While the so called stimulus package of billions of dollars was being spend on numerousitems most of it was all unconstitutionally used because the Commonwealth of Australia had no5constitutional powers as to the kind of spending that took place.Likewise the tax exemption of diplomates, etc, is beyond constitutional powers because theCommonwealth as an employer has no better legal standing as any other company. The

Commonwealth of Australia can only legislate for the whole of the Commonwealth and hencetax free income for politicians and former politicians is unconstitutional.10As the Framers of the Constitution made clear it could be on a sliding scale for all Australiansbut not to exclude some people and not others.This is also why the Northern Territory Intervention Act is unconstitutional because it is notwithin s.51(xxvi) of the constitution and neither within the ambit of s.122 of the constitution.Likewise the proposed ETS is not a taxation for the whole of the Commonwealth. The same15with the SUPER TAX on mining companies..

Again, I have no issue with having a Prime Minister because the Framers of the Constitution allalong intended that there would be a Prime Minister and the Governor-General albeit the CEO

would be there in a supervisory role and not being hands on as to run the government. However,20having an Office of the Prime minister is where it goes wrong and the same with having a PrimeMinister then having more then $400.00 million as some slash funds for pet projects (porkbarrelling) as this again undermines the entire set up of the constitution. The only way anyCommonwealth monies can be spend without being for the whole of the commonwealth isthrough the s.101 Inter-State Commission, as this was specifically set up and must always exist25for the purpose to allow trade and commerce laws to be applied in consideration of what is bestfor each state.What we have however is that the Inter-State commission has been railroaded, albeitunconstitutionally, for the so called CoAG (Council of Australian Governments). What wee haveis this ridiculous notion that the Commonwealth acting on behalf of the States now is30

conferencing with the States but not on what it has on constitutional powers but so to say toblackmail the States into submission to hand over more and more legislative powers and eventhat is all done unconstitutional, however the issue is far and wide and already extensivelycanvassed in my published books in the INSPECTOR-RIKATI series on certainconstitutional and other legal issues and so doesnt need now to be repeated in this35correspondence..

Where there is no constitutional power for an Office of the Prime Minister then one cannotappoint anyone to the Office of the Prime Minister as it would be an invalid appointment. Itwould to undermine the constitutional set up and I view no Governor-General can permit to act40in defiance of the constitution which is the very source of power for a Governor-General to be

appointed..

It doesnt matter if it is a Minister or Governor or Governor-General they are all bound to swearalliance or make affirmation to the British Crown as this is a British constitution. Hence, where it45appears you appointed Ms Julia Gilliard to the Office of the Prime Minister her appointment(commission) was constitutionally invalid). Further, where Ms Julia Gillard was making anaffirmation to Australia and the people of Australia rather then to Her Majesty in whos employshe only can be appointed then she neither is constitutionally be permitted to draw any salary forbeing a purported Minister. As a matter of fact the constitution doesnt permit any member of50parliament to be employed otherwise while serving as a Member of parliament other then as aMinister of the Crown and clearly where Ms Julia Gilliard didnt want to acknowledge her

service to the British Crown then she by this acted in breach of s.44.


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Do consider But subsection (iv) does not apply to the office of any of the Queens Ministersof State for the Commonwealth, or of any of the Queens Ministers for a State, and as MsJulia Gillard and for this other Ministers who failed to swore an oath or affirmation to the BritishCrown then they are all constitutionally disqualified from sitting in the Parliament..5QUOTE

44 DisqualificationAny person who:

(i) is under any acknowledgment of allegiance, obedience, oradherence to a foreign power, or is a subject or a citizen or10entitled to the rights or privileges of a subject or a citizen of aforeign power; or(ii) is attainted of treason, or has been convicted and is undersentence, or subject to be sentenced, for any offencepunishable under the law of the Commonwealth or of a State15by imprisonment for one year or longer; or(iii) is an undischarged bankrupt or insolvent; or(iv) holds any office of profit under the Crown, or any pensionpayable during the pleasure of the Crown out of any of therevenues of the Commonwealth; or20

(v) has any direct or indirect pecuniary interest in any agreementwith the Public Service of the Commonwealth otherwise thanas a member and in common with the other members of anincorporated company consisting of more than twenty-fivepersons;25shall be incapable of being chosen or of sitting as a senator or amember of the House of Representatives.But subsection (iv) does not apply to the office of any of theQueens Ministers of State for the Commonwealth, or of any of theQueens Ministers for a State, or to the receipt of pay, half pay, or30a pension, by any person as an officer or member of the Queensnavy or army, or to the receipt of pay as an officer or member ofthe naval or military forces of the Commonwealth by any personwhose services are not wholly employed by the Commonwealth.

END QUOTE35.

Where the schedule to the Act is not a schedule to clause 9 (The constitution) then it neither canbe amended by the Commonwealth of Australia and hence any oath/affirmation by anyGovernor-General, governor and/or Minister must be as per schedule oath or affirmation. Failingthis then the oath/affirmation is invalid. It may be stated that President Barack Hussein Obama40had to re-swear the oath in the oval office when it was discovered the original oath had not beenproperly made..

HANSARD 2-3-1898 Constitution Convention DebatesQUOTE45

Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that weare all alike subjects of the British Crown.

END QUOTE.

Hansard 2-3-1898 Constitution Convention Debates50QUOTE

Mr. SYMON ( South Australia ).-In the preamble honorable members will find that what we desire to do is to unite in oneindissoluble Federal Commonwealth -that is the political Union-"under the Crown of the

United Kingdom of Great Britain and Ireland , and under the Constitution hereby55established." Honorable members will therefore see that the application of the word


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Commonwealth is to the political Union which is sought to be established. It is not intendedthere to have any relation whatever to the name of the country or nation which we are goingto create under that Union . The second part of the preamble goes on to say that it isexpedient to make provision for the admission of other colonies into the Commonwealth.That is, for admission into this political Union, which is not a republic, which is not to5be called a dominion, kingdom, or empire, but is to be a Union by the name of

"Commonwealth," and I do not propose to interfere with that in the slightest degree.

END QUOTE.

As such, if there is no monarchy there can be no Queen of Australia. If the title of Queen of10Australia really means the British Crown then Heather Hill clearly was qualified to be aMember of Parliament. Again consider Calvins case 7 coke Report 1a, 77 ER 377 (1608),which I view sets it out considerably.QUOTE

4. And as to the fourth, it is less than a dream of a shadow, or a shadow of a dream: for it15hath been often said, natural legitimation respecteth actual obedience to the sovereign atthe time of the birth; for as the antenati remain aliens as to the Crown of England, becausethey were born when there were several Kings of the several kingdoms, and the [7-Coke-27b] uniting of the kingdoms by descent subsequent cannot make him a subject to that Crownto which he was alien at the time of his birth: so albeit the kingdoms (which Almighty God20of his infinite goodness and mercy divert) should by descent be divided, and governed byseveral Kings; yet it was resolved, that all those that were born under one naturalobedience while the realms were united under one sovereign, should remain natural

born subjects, and no aliens; for that naturalization due and vested by birthright,

cannot by any separation of the Crowns afterward be taken away: nor he that was by25judgment of law a natural subject at the time of his birth, become an alien by such amatter ex post facto.

END QUOTEAnd

QUOTE30 3. Where the King hath several kingdoms by several titles and descents, there also are theligeances several: but the King hath these two kingdoms by several titles and descents;therefore the ligeances are several. These three arguments are collected also from thewords of the plea before remembered.3. Leges. From the several and distinct laws of either kingdom, they did reason thus:351. Every subject that is born out of the extent and reach of the laws of England,cannot by judgment of those laws be a natural subject to the King, in respect of his

kingdom of England: but the plaintiff was born at Edinburgh, out of the extent and

reach of the laws of England; therefore the plaintiff by the judgment of the laws of

England cannot be a natural subject to the' King, as of his kingdom of England.40

END QUOTEAndQUOTE

By all which it is manifest, that the protection and government of the King is general overall his dominions and kingdoms, as well in time of peace by justice, as in time of war by45the sword, and that all be at his command, and under his obedience.

END QUOTEAndQUOTE

3. There be regularly (unless it be in special cases) three incidents to a subject born. 1.50That the parents be under the actual obedience of the King. 2. That the place of his

birth be within the King's dominion. And, 3. The time of his birth is chiefly to beconsidered; for he cannot be a subject born of one kingdom that was born under the


25/45



ligeance of a King of another kingdom, albeit afterwards one kingdom descend to the

King of the other. For the first, it is termed actual obedience, because, though the

King f' England hath absolute right to other kingdoms or dominions, as France,

Aquitai, Normandy, &c. yet seeing the King is not in actual possession thereof, none

born there since the Crown of England was out of actual possession thereof, are5subjects to the King of England. 2. The place is observable, but so as many times

ligeance or obedience without any place within the King's dominions may make a

subject born, but any place within the King's dominions may make a subject born,

but any place within the King's dominions without obedience can never produce a

natural subject. And therefore if any of the King's ambassadors in foreign nations,10have children there of their wives, being English women, by the common laws of

England they are natural-born subjects, and yet they are born out-of the King's

dominions. But if enemies should come into any of the King's dominions, and surprise

any castle or fort, and [7-Coke-18 b] possess the same by hostility, and have issue

there, that issue is no subject to the King, though he be born within his dominions, for15that he was not born under the King's ligeance or obedience. But the time of his (a)

birth is of the essence of a subject born; for he cannot be a subject to the King of

England, unless at the time of his birth he was under the ligeance and obedience of

the King. And that is the reason that antenati in Scotland (for that at the time of theirbirth they were under the ligeance and obedience, of another King) are aliens born, in20respect of the time of their birth.

END QUOTEAgainQUOTE

yet it was resolved, that all those that were born under one natural obedience while25the realms were united under one sovereign, should remain natural born subjects, and

no aliens; for that naturalization due and vested by birthright, cannot by any

separation of the Crowns afterward be taken away: nor he that was by judgment of

law a natural subject at the time of his birth, become an alien by such a matter ex post

facto.30END QUOTE.

Moller v Board of Examiners for Legal Practitioners [1999] VSCA 116 (30 July 1999)

QUOTE

10. The judge rejected the application. His Honour's reasons included that, in swearing35allegiance to the Queen, the appellant would be doing no more than swearing

allegiance to the Head of State of the country of which he is now a citizen and, ineffect, to Australia. His Honour said that the fact that the appellant is a dedicatedrepublican was not to the point and that the swearing of the oath would not change thatfact nor prejudice the appellant in that regard. His Honour also said that it was40

appropriate that the appellant swear an oath of allegiance to the Head of State ofthis country in the same fashion as any other officer of the Court.

END QUOTE.

It should be understood no one forces anyone to make an oath or affirmation and any republican45who desires not to do so as is per schedule is not required to do so albeit neither then can take upa position in an office to serve the monarchy. While Moller v Board

100825-Governor-General Q Bryce-Re Constitutional Matters-Appointment of Prime Minister-Etc

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