20171104-Press Release MR G. H. Schorel-Hlavka O.W.B. Issue - Re When Does Disqualification Apply, Etc & The Constitution

ISSUE: 20171104- Re: WHEN DOES DISQUALIFICATION APPLY, etc & the constitution
As a CONSTITUTIONALIST my concern is the true meaning and application of the constitution.
In my view Barwick C J made a gross error in his judgment in 1975 Webster case:
http://biography.senate.gov.au/webster-james-joseph/
WEBSTER, JAMES JOSEPH (1925) SENATOR FOR VICTORIA, 196480 (AUSTRALIAN COUNTRY
PARTY; NATIONAL COUNTRY PARTY)
QUOTE
He pointed out that, contrary to popular belief, the purpose served by the constitutional
provision was not to ensure that members of Parliament did not take advantage of their
positions to obtain favours from the Crown. Instead it was to preserve the independence of
Parliament from the Crown by preventing a government contractor being influenced by the
Crown on other matters. The section applied only to executory agreements to be performed
over a substantial period of time.
END QUOTE
Hansard 31-3-1891 Constitution Convention Debates (Official Record of the Debates of the
National Australasian Convention)
QUOTE Sir SAMUEL GRIFFITH:
There are, of course, many formal matters relating to both houses, such as the election of
president and speaker, disqualifications, the issue of writs, elections, and so on, with which
I shall not on this occasion trouble the Convention. It is provided, then, that each member
of either house shall have an annual allowance for his services, which is proposed to be
fixed in the meantime at 500 a year. The ordinary disqualifications are inserted as to
members holding offices of profit, with the exception of ministers of the Crown, or
becoming public contractors and other similar provisions.
END QUOTE
The disqualification is not relevant when an election is held but only if it exist at time of
taking up the seat elected for as shown below:
Hansard 2-4-1891 Constitution Convention Debates
QUOTE
Sir JOHN BRAY: I am very glad to hear that the committee considered the point, although I think they
arrived at a very unwise decision. The hon. gentleman who last spoke is mistaken in what I take to be the drift
of all parliaments. No parliament lives out the full term of its existence. It is always dissolved before it actually
expires, and so it would be in this [start page 645] case. The practice almost invariably is for the house to be
dissolved, and a new house elected, before the expiration of the three years, the object being that there shall
always be a parliament in existence. The intention is not that the members shall be elected for three years, but
that they shall absolutely serve for three years, and the three years ought for the sake of convenience to date
from the first meeting of parliament. At any rate, we ought to ensure that all the members shall be elected for
the same term, and that one member's time shall not expire three or four weeks before the term of another
member, as might be the case under this clause.
Sir SAMUEL GRIFFITH: No!
Sir JOHN BRAY: I think so, because the date appointed for the return of the writs is not necessarily the same
in every district.
p1 3-11-2017 G. H. Schorel-Hlavka O.W.B.

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Sir SAMUEL GRIFFITH: The clause does not say that each member shall sit for three years, but that the
house shall endure for that time!
Sir JOHN BRAY: But the house consists of members. At any rate, the operation of the clause is not very
clear, and I would ask hon. members to agree to the amendment I have proposed.
Mr. BAKER: The hon. member, Sir Samuel Griffith, says that this clause is not intended to fix the term for
which members of the house shall hold office, but to fix the duration of the house itself; but there can be no
house without members. If the writs are returned at different dates, members of parliament will hold office for
different periods.
Sir SAMUEL GRIFFITH: No!
Mr. BAKER: That is how it strikes me. If the writ of one member is returned three weeks before that of
another, the first man will be a member of parliament for three weeks longer than the other.
Mr. BARTON: The writs are appointed to be returned on the one day!
Mr. WRIXON: I must say that the amendment of the hon. member, Sir John Bray, commends itself to my
mind. Until parliament meets, and the members present themselves, you do not really know who is a
member of parliament and who is not. Up to that time a man is only returned to serve in parliament, and
it may be that he will not take the oath when he presents himself at the table, or it may be that he is
disqualified, and, therefore, until the house meets, and the members take the oath, and qualify
themselves, you do not know who are members of parliament and who are not. It seems to me, therefore,
that you have one uniform date at which you know those who really are members of parliament when you start
from the first meeting of parliament. But if the day of the return of the writs is uncertain
END QUOTE
QUOTE
Mr. BARTON: No doubt when the words were first placed in the Constitution Act they
applied to a different state of things. I would urge the necessity of keeping in this
Constitution a disqualification of this kind up to a considerable number of people, so that
there will not be the possibility of a body of seven or eight persons combining together to
form a registered company, and then carrying out a fraud upon the public. I think it is better
to adhere to the clause.
Mr. HIGGINS: I have known of a company with 50,000 shares, and every one of them,
with the exception of four, was held by one person.
Mr. BARTON: "One-man companies" they are called.
Mr. GORDON: That is quite legal. The number composing any duly incorporated
company should be fixed; if not how easy will it be to have twenty nominal shareholders
who could combine to do a certain thing. If we are going to prevent fraud let us make the
perpetration of it as difficult as possible.
END QUOTE

QUOTE
Mr. CARRUTHERS (New South Wales).-I desire to reply to some objections urged to the proposal made
by me. I will take the objections coming from the Hon. Mr. O'Connor, the Hon. Mr. Symon, and Sir John
Downer, which have carried great weight in the Convention. They ask why we should place politicians on a
different plane from other members of the community in regard to insolvency? Why should there be another
tribunal to decide their cases? Was ever a weaker argument used? We know that whenever any member of
the legal professions barrister or a solicitor-becomes insolvent, he call go on practising his profession. It is
only when in the courts of insolvency he is found guilty of something amounting to a crime that the court will
take away from him the right to pursue his occupation. Take the case also of a tradesman. If be becomes
insolvent be can carry on his business the next day. He has not to wait until he gets his certificate of
discharge. With reference to the public servants in all the colonies, although bankruptcy may cause a
suspension, their offices are kept vacant for them until they have had an opportunity of getting a
certificate of discharge. There is no other class in the community, looking at this argument and taking the
reverse of it which is penalized as members of Parliament are sought to be penalized under this Constitution.
Let us look at the matter now from the opposite standpoint. I will undertake to say that the clause as proposed
will do more to undermine the honesty of public life than would the amendment which I have suggested. We
have always heard it said that the poverty of public men was a great testimony to their honesty. Why was
that? It was because these men in public life knew that they would not be branded as criminals if they did not
seek the protection of the laws designed for the poor man. But supposing that you provide that a man shall
absolutely sacrifice his public position if he becomes insolvent there will be a great temptation to public men
who are poor not to have recourse to the protection of the Insolvency and the Bankruptcy Courts. You at once
create a temptation which has never before existed in the public life of most of the colonies. Men who fear
that they are being pursued, not with the ordinary force of the law, but with an exceptional rigour, will have a
temptation presented to them, if they are weak, to adopt questionable means to save themselves from
expulsion from public life. We would not be elevating public life by inserting in the Bill a provision of this
character. I should go with Sir John Downer and Mr. Symon if they proposed that a man who had been
refused his certificate of discharge should be disqualified from holding his seat in Parliament, because
the moment a certificate of discharge is refused a stamp of dishonesty is placed upon the insolvent's
business transactions, and that should be a [start page 1941] disqualification. But here there is no
provision of that character, and the clause says that a man is to be deemed guilty before he is tried.
You cannot within the 30 days, if any political opponent chooses to set the wheels in motion, get a
certificate of discharge.
Mr. TRENWITH.-If he is a good man, would not he be returned to Parliament again?
Mr. CARRUTHERS.-He would; but the Ministry might be dissolved, and the whole state of affairs
politically might be thrown into confusion. Are we to be told that three years afterwards an error, such as I
have described, maybe remedied by the man being re-elected to Parliament? That is too big a price to pay
in such a matter as this. I do hope, therefore, that the Convention will carry this proposal. If Sir John
Downer and others who are wavering think that some protection is necessary, let it be provided in another
sub-section that where a man is refused a certificate of discharge he shall be disqualified from holding his
seat.
END QUOTE

QUOTE
Mr. GLYNN (South Australia)[8.33]: Before the Committee proceeds to consider the amendment which
has been suggested by the Legislative Assembly of New South Wales, I would suggest that we make an
alteration in the first portion of the clause by adding words to the effect that these disqualifications shall
operate until the federal parliament otherwise provides.
The Hon. E. BARTON: Does the hon. member contemplate the federal parliament making provision
exempting a man who has taken the oath of allegiance to a foreign power?
Mr. GLYNN: This provision is really temporary. It is to cover the gap between the adoption of the
constitution and the passing of special legislation by the federal parliament. I would ask hon. members also
to consider the effect of sub-clauses II and III. For instance, the meaning of the term "bankrupt" itself may
change. It may be very different twenty years hence from what it now is. Then there is the word "felony."
As Sir Samuel Griffith has pointed out, the meaning of the word "felony" is changing considerably. In some
colonies felony is comparatively a light offence; in other colonies it is a heavy offence. In New Zealand
felony is practically unknown to the federal law. Changes similar to that which have taken place in New
Zealand in regard to the meaning of the word may take place in other colonies, and if you leave the clause
as it stands you will put it in the power of the states parliaments to either extend or diminish the
qualification by making a change in the meaning of "felony." I say that this is a matter for the federal
parliament, and that it ought not to be fixed perpetually in the constitution. Again, as regards the
construction of the clause itself, I would draw the attention of the Drafting Committee to another matter.
The hon. member, Mr. Barton, has referred to the taking of an oath or declaration of allegiance. The first

part of the clause, it will be seen, does not read with the latter part of it. For instance, it says, "Any person
who has taken an oath or made a declaration or acknowledgment of allegiance, obedience, or adherence to a
foreign power." The clause then goes on to say that the person shall be incapable of being chosen or sitting
as a member of the senate or of the house of representatives until the disability is removed. But, once a
man takes an oath of this kind, you cannot remove the disability because a thing is done. The
amendment required is purely a drafting amendment. The way in which the matter should be put would be,
until the removal of the disqualification caused by the taking of the oath. That is the evident intent of the
clause; but the wording of the clause is altogether different. I think this is a matter that ought to be left to
the federal parliament, and I think that the words I suggest should be adopted.
The HON. E. BARTON (New South Wales)[8.36]: I am unable to see that it would be a good thing to
limit this clause in the way suggested by my hon. friend, Mr. Glynn, who has said that this is a matter that
should be left to the federal parliament. This happens to be just one of those matters which are included in
the constitution of every one of the colonies. All the colonial constitutions provide for such matters as
these, and it is perhaps right that they should provide for them, for even in the first parliament it would be
rather a strange thing to find persons who had taken oaths of allegiance to foreign powers, who were
undischarged bankrupts or insolvents, or who had been recently attainted of crime, or convicted of felony
or infamous crime. Unless you have provisions of this kind, it is quite possible that somebody might take a
violent affection for a gaol-bird, and put him into parliament. We do not want that sort of thing. It is one
thing not to put limita- [start page 1013] tions on the ordinary freedom of the citizens of the
commonwealth. It is another thing to provide against the defilement of parliament; and this would be the
case as regards the 3rd sub-clause, whilst in the case of the 2nd sub-clause it would be the admission into
parliament of persons who had not purged themselves of certain disabilities, while in the case of the first
subclause it would be the entry of persons into parliament whose very conditions would suggest that their
interests were quite different from those of the citizens of the country. Persons who have taken the oath
of allegiance to a foreign power are not to be classed in the same category as citizens of the country
for the purpose of joining in legislation.
An HON. MEMBER: And not to be trusted?
The Hon. E. BARTON: Not to be trusted, prima facie!
Mr. GLYNN: That is not one of my points!
The Hon. E. BARTON: If the definition of a point is a thing of no magnitude, it is not a point because it is
larger. These limitations having been put in all constitutions of the Australian colonies, and having worked
well, and prevented the entry of undesirable persons into parliament, they may well be continued in the
constitution we are now framing. They are not limitations of the freedom of the electors. It is scarcely to
be supposed that, except by inadvertence or accident, the electors would vote for such a person; but it is
quite possible that the electors of the commonwealth, not knowing that certain persons had taken the oath
of allegiance to a foreign power or had become attainted of some crime, or become bankrupt or insolvent-it
is quite on the cards that such persons would stand for election for the commonwealth parliament, and the
electors might choose them, not knowing who they were. That is not at all an improbable supposition. Such
a thing has happened, and it is a kind of thing which the electors are to be protected against, because it is a
state of things the electors themselves could not provide against. They might be taken in warily; they might
be caught in a trap. This is not merely a case of preserving the freedom of the electors, but of preventing
them from being imposed upon by persons who otherwise might creep into parliament, perhaps, in some
cases, persons who were insidious enemies of the commonwealth, and in other cases persons who had been
attainted of crime, or who were under other conditions of which they should rid themselves before they
offered themselves for election to any legislative assembly. I submit that on the whole it is very desirable to
avoid making the alteration suggested by the hon. member, Mr. Glynn; and while I am speaking, I think I
might say that, although it is far less objectionable, it would be desirable also not to accept the amendment
that has been suggested by the Legislative Assembly of this colony.
END QUOTE
Again:
Persons who have taken the oath of allegiance to a foreign power are not to be classed in the same
category as citizens of the country for the purpose of joining in legislation.

Nothing could be argued against a person who didnt take an oath/affirmation and beyond his
personal acceptance was somehow provided with a foreign nationality not requested to be
provided. Section 44 of the constitution applies to being a British subject and not otherwise.
While there are persons who hold that the Parliament changed s46 of the constitution by the
COMMON INFORMERS (PARLIAMENTARY DISQUALIFICATIONS) ACT 1975 no real
change was made as such. An alteration to the constitution cannot be made by the Parliament!
However, where the constitution provides for until the Parliament otherwise provides then
where the Parliament legislate within that constitutional legislative power then it is not a
change/amendment of the constitution but merely a legislative power exercised within the ambit
of s46. The Framers of the Constitution simply provided for the duel application that either s46
applies as such but until the Parliament legislated otherwise.
HANSARD 9-2-1898 Constitution Convention Debates

QUOTE
Mr. HIGGINS.-No, because the Constitution is not passed by the Parliament.
END QUOTE
It also means that the purported Commonwealth of Australia Constitution Act 1901 (Cth) is utter
and sheer nonsense! Therefore Parliament has no power to legislate regarding constitutional
provisions unless it so specifically is permitted to do so and it doesnt mean any amendment to
the constitution itself. It is the constitution that provides a dual option, as it does whenever there
is a provision until the Parliament otherwise provides. The Parliament may very well legislate
and later abolish the legislation to return to the original application of the constitution.
As I made clear all along in Sykes v Cleary Mr Cleary was legitimately elected as by the time he
took up the seat he no longer was employed with the State of Victoria. In any event, S44 was
never intended to apply to State employment but merely to Commonwealth employment. As
such, the real issue was that a Member of (federal) Parliament cannot say award itself a contact
with the Federal Government. Section 44 was a consolidation of various clauses that had
originally separated matters but when presented to the convention Barton made clear that it
didnt alter the meaning as originally intended. Obviously, in my view, Barwick C J failed to be
aware of this also.
QUOTE
Dr. COCKBURN: All our experience hitherto has been under the condition of parliamentary
sovereignty. Parliament has been the supreme body. But when we embark on federation we throw
parliamentary sovereignty overboard. Parliament is no longer supreme. Our parliaments at present are
not only legislative, but constituent bodies. They have not only the power of legislation, but the power
of amending their constitutions. That must disappear at once on the abolition of parliamentary
sovereignty. No parliament under a federation can be a constituent body; it will cease to have the
power of changing its constitution at its own will. Again, instead of parliament being supreme, the
parliaments of a federation are coordinate bodies-the main power is split up, instead of being vested in
one body. More than all that, there is this difference: When parliamentary sovereignty is dispensed
with, instead of there being a high court of parliament, you bring into existence a powerful judiciary
which towers above all powers, legislative and executive, and which is the sole arbiter and interpreter
of the constitution.
END QUOTE

QUOTE
Mr. SYMON.-Very likely not. What I want to know is, if there is anybody who will come under the
operation of the law, so as to be a citizen of the Commonwealth, who would not also be entitled to be a
citizen of the state? There ought to be no opportunity for such discrimination as would allow a section of a
state to remain outside the pale of the Commonwealth, except with regard to legislation as to aliens. Dual
citizenship exists, but it is not dual citizenship of persons, it is dual citizenship in each person. There may
be two men-Jones and Smith-in one state, both of whom are citizens of the state, but one only is a
citizen of the Commonwealth. That would not be the dual citizenship meant. What is meant is a dual
citizenship in Mr. Trenwith and myself. That is to say, I am a citizen of the state and I am also a citizen
of the Commonwealth; that is the dual citizenship. That does not affect the operation of this clause at all.
But if we introduce this clause, it is open to the whole of the powerful criticism of Mr. O'Connor and those
who say that it is putting on the face of the Constitution an unnecessary provision, and one which we do not
expect will be exercised adversely or improperly, and, therefore, it is much better to be left out. Let us, in
dealing with this question, be as careful as we possibly, can that we do not qualify the citizenship of this
Commonwealth in any way or exclude anybody [start page 1764] from it, and let us do that with precision and
clearness. As a citizen of a state I claim the right to be a citizen of the Commonwealth. I do not want to
place in the hands of the Commonwealth Parliament, however much I may be prepared to trust it, the
right of depriving me of citizenship. I put this only as an argument, because no one would anticipate such a
thing, but the Commonwealth Parliament might say that nobody possessed of less than 1,000 a year should
be a citizen of the Federation. You are putting that power in the hands of Parliament.
Mr. HIGGINS.-Why not?
Mr. SYMON.-I would not put such a power in the hands of any Parliament. We must rest this
Constitution on a foundation that we understand, and we mean that every citizen of a state shall be a
citizen of the Commonwealth, and that the Commonwealth shall have no right to withdraw, qualify, or
restrict those rights of citizenship, except with regard to one particular set of people who are subject to
disabilities, as aliens, and so on.
END QUOTE

QUOTE
Dr. QUICK.-If we are to have a citizenship of the Commonwealth higher, more comprehensive, and nobler
than that of the states, I would ask why is it not implanted in the Constitution? Mr. Barton was not present
when I made my remarks in proposing the clause. I then-anticipated the point he has raised as to the position
we occupy as subjects of the British Empire. I took occasion to indicate that in creating a federal
citizenship, and in defining the qualifications of that federal citizenship, we were not in any way
interfering with our position as subjects of the British Empire. It would be beyond the scope of the
Constitution to do that. We might be citizens of a city, citizens of a colony, or citizens of a
Commonwealth, but we would still be, subjects of the Queen. I see therefore nothing unconstitutional,
nothing contrary to our instincts as British subjects, in proposing to place power in this Constitution to
enable the Federal Parliament to deal with the question of federal citizenship.
END QUOTE
As such the judicial powers of the High Court of Australia does not and never did to decide the
Commonwealth of Australia is no longer under the British Crown. (Sue v Hill)
The Court cannot do something that is beyond its constitutional judicial powers!
QUOTE
Mr. BARTON.- We can have every faith in the constitution of that tribunal. It is appointed as the arbiter of
the Constitution. . It is appointed not to be above the Constitution, for no citizen is above it, but under
it; but it is appointed for the purpose of saying that those who are the instruments of the Constitution-
the Government and the Parliament of the day-shall not become the masters of those whom, as to the
Constitution, they are bound to serve. What I mean is this: That if you, after making a Constitution of
this kind, enable any Government or any Parliament to twist or infringe its provisions, then by slow
degrees you may have that Constitution-if not altered in terms-so whittled away in operation that the
guarantees of freedom which it gives your people will not be maintained; and so, in the highest sense, the
court you are creating here, which is to be the final interpreter of that Constitution, will be such a tribunal as
will preserve the popular liberty in all these regards, and will prevent, under any pretext of
constitutional action, the Commonwealth from dominating the states, or the states from usurping the sphere
of the Commonwealth.
END QUOTE
Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE
Mr. WISE.-If the Federal Parliament chose to legislate upon, say, the education question-and the
Constitution gives it no power to legislate in regard to that question-the Ministers for the time being in each
state might say-"We are favorable to this law, because we shall get 100,000 a year, or so much a year, from
the Federal Government as a subsidy for our schools," and thus they might wink at a violation of the
Constitution, while no one could complain. If this is to be allowed, why should we have these elaborate
provisions for the amendment of the Constitution? Why should we not say that the Constitution 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 a few minutes in discussing it.
END QUOTE

QUOTE Mr. SYMON:
Therefore, if there were to be an alteration in the way of introducing proportional representation, that
power would remain with the States and be exercised by them. There is nothing in this clause which
enables the Parliament of the Federation to alter the qualification of electors to the Senate unless by an
alteration of the Constitution.
END QUOTE
As neither the states and/or the Federal parliament can amend the constitution it means that any
amendment must be approved by way of referendum! State legislation to allow the
Commonwealth to legislate is insufficient as it prevents a s128 referendum to be held and by this
would rob the electors of their rights to decide collectively to veto or agree to any amendment.
Never mind my self-confessed crummy-English at least I do not so to say have blinkers on nor
have a tunnel vision. Anyone is qualified to be a candidate in an elector if being a State elector of
adult age. The deposit I view is unconstitutional and so the number of signatures required if not
endorsed by a political party. Fancy a political party say merely having 501 members and yet
being ab le to endorse say 150 candidates whereas 150 INDEPENDENT candidates each would
require a total of 7,500 or more signatures. This in itself is a gross denial of a FAIR and
PROPER election. Likewise the payment per primary vote.
This correspondence is not intended and neither must be perceived to state all issues/details.
Awaiting your response, G. H. Schorel-Hlavka O.W.B. (Gerrit)
MAY JUSTICE ALWAYS PREVAIL (Our name is our motto!)


20171104-Press Release MR G. H. Schorel-Hlavka O.W.B. Issue - Re When Does Disqualification Apply, Etc & The Constitution

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20171104-Press Release MR G. H. Schorel-Hlavka O.W.B. Issue - Re When Does Disqualification Apply, Etc & The Constitution

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ISSUE: 20171104- Re: WHEN DOES DISQUALIFICATION APPLY, etc & the constitution

As a CONSTITUTIONALIST my concern is the true meaning and application of the constitution.

Sir SAMUEL GRIFFITH: No!

p1 3-11-2017 G. H. Schorel-Hlavka O.W.B.

Sir SAMUEL GRIFFITH: No!

Mr. BARTON: "One-man companies" they are called.

Hansard 7-3-1898 Constitution Convention Debates

Mr. TRENWITH.-If he is a good man, would not he be returned to Parliament again?

Hansard 21-9-1897 Constitution Convention Debates

p3 3-11-2017 G. H. Schorel-Hlavka O.W.B.

An HON. MEMBER: And not to be trusted?

The Hon. E. BARTON: Not to be trusted, prima facie!

Mr. GLYNN: That is not one of my points!

p4 3-11-2017 G. H. Schorel-Hlavka O.W.B.

HANSARD 9-2-1898 Constitution Convention Debates

Hansard 2-3-1898 Constitution Convention Debates

Mr. HIGGINS.-Why not?

Hansard 2-3-1898 Constitution Convention Debates

Hansard 15-4-1897 Constitution Convention Debates

p7 3-11-2017 G. H. Schorel-Hlavka O.W.B.

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