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

Her Excellency Ms Quentin Bryce AC 25-8-2010
Governor General of the Commonwealth of Australia

5 Canberra
governor-general@gg.gov.au
.
Ref: various constitutional issues
Appointment of Prime Minister, etc
10 AND TO WHOM IT MAY CONCERN
.
Madam,
as a CONSTITUTIONALIST I consider matters as to the true intention of the Framers of the
Constitution irrespective of my personal views and as such not relevant if I am a monarchist,
15 republican or whatever.
.
I understood that a purported constitutional lecturer claimed that the Governor-General is bound
to follow the advise of the care taking Prime Minister as to whom to appoint to form a
Government and also the comments made by governor the Honourable Peter Underwood AC
20 regarding the commission of Honourable David Bartlett by which in his set out that was
published 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
25 may withdraw the commission of any or all of the Ministers of State and so cannot be bound to
follow the advise of a former Minister, etc.
.
While much is argued about “constitutional conventions” in truth they cannot and will not
interfere with the constitutional frame work. For example a Governor-General may have made an
30 error in appointment and it then can hardly held that every subsequent Governor-General would
be bound to likewise act in error. What a Governor-General is bound to do is to consider the
interest of the general public! For example if a Minister of war were to advise just before an
election was due to go to war, then the Governor-General has to take into consideration if this
advise was for no more but political purposes for an election and so should be refused or it is
35 otherwise.
It is not the business of the Governor-General to seek to secure passing of supply because it
would be a gross interference with the political rights of Members of Parliament to decide if they
will or will not pass supply bills.
No one could commit any Member of Parliament to give an undertaking to pass supply because it
40 is as like any other Bill before the Parliament subject to constitutional provisions and where then
the Bill fails to pass the second time then a DOUBLE DISSOLUTION is to be called unless the
Bill 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 down
acceptable to more Member of Parliament and so the failure of two previous votes in a House
45 itself doesn’t require there is a DOUBLE DISSOLUTION. In fact the Framers of the
Constitution made this very clear that a Bill failing to pass twice might just be abandoned or be
modified subsequently.
25-8-2010 Page 1 Appointment of Prime Minister, etc

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QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) (The Constitution)
57 Disagreement between the Houses
If the House of Representatives passes any proposed law, and the
Senate rejects or fails to pass it, or passes it with amendments to
5 which the House of Representatives will not agree, and if after an
interval of three months the House of Representatives, in the same
or the next session, again passes the proposed law with or without
any amendments which have been made, suggested, or agreed to
by the Senate, and the Senate rejects or fails to pass it, or passes it
10 with amendments to which the House of Representatives will not
agree, the Governor-General may dissolve the Senate and the
House of Representatives simultaneously. But such dissolution
shall not take place within six months before the date of the expiry
of the House of Representatives by effluxion of time.
15 If after such dissolution the House of Representatives again passes
the proposed law, with or without any amendments which have
been made, suggested, or agreed to by the Senate, and the Senate
rejects or fails to pass it, or passes it with amendments to which the
House of Representatives will not agree, the Governor-General
20 may convene a joint sitting of the members of the Senate and of the
House of Representatives.
The members present at the joint sitting may deliberate and shall
vote together upon the proposed law as last proposed by the House
of Representatives, and upon amendments, if any, which have been
25 made therein by one House and not agreed to by the other, and any
such amendments which are affirmed by an absolute majority of
the total number of the members of the Senate and House of
Representatives shall be taken to have been carried, and if the
proposed law, with the amendments, if any, so carried is affirmed
30 by an absolute majority of the total number of the members of the
Senate and House of Representatives, it shall be taken to have been
duly passed by both Houses of the Parliament, and shall be
presented to the Governor-General for the Queen’s assent.
END QUOTE The Commonwealth of Australia Constitution Act 1900 (UK)
35 .
Therefore a supply Bill (Appropriation Bill) must go through the normal channels as any other
Bill. In my view it would be an inappropriate interference by any Governor-General to seek to
demand a party to guarantee supply bills to be passed, etc.
.
40 What a Governor-General’s function however is was to ensure that a Minister (Including a Prime
minister) will be acting within the framework of the constitution. As such not permitting a Prime
minister 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 the
constitution held “must” always exist while in fact as I understand it since 1987 hasn’t existed
45 because governments rather instead abuse and misuse their powers.
As 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,
50 the States (so the Territories as quasi states) therefore no longer have any “Land Tax” legislative
powers. Yet nothing was done by the Commonwealth to deal with the States/Territories
unconstitutional “Land Tax” legislation at least since 1958!.
Again; As such the Governor-General must look to commission a person for good
governance!
55 .
As we find below the Royal Commission “ASSUMED” there was legislative powers, albeit the
Framers of the Constitution specifically denies legislative powers as to define/declare
“CITIZENSHIP” and clearly the Constitution doesn’t provide for a “Royal Commission” to
somehow amend the “meaning or the application” of the Constitution. As such again we need a
5 Government that is willing to apply the rule of law and not what may suit itself otherwise.
governance!
.
Reportedly there has been a $50 million cost with the election for candidates of $2.20 per vote,
10 which I submit is unconstitutional regardless what the legislation otherwise may purport. Most
advertising on television at least was about which Prime minister should be elected, this, even so
the electors do not elect Prime ministers or for that any Minister at all as they can constitutionally
that is, only elect representatives to the parliament.
The prerogative power of the Governor-General is to decide who will be a ministerial advisor
15 and irrespective if the person is or isn’t elected and irrespective of if the person is or isn’t in the
majority of a political party.
The government cannot dictate legislation as its conduct is o administer the laws of the
Commonwealth. 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 to
20 legislation but as E Barton proved he was commissioned for no other purpose but to be able to
form a government and not as to if he were to hold majority of seats in any House of the
Parliament and neither if he was a political party holder. Indeed, to narrow the appointment of a
Prime 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 what
25 Ministers really are.
.
It should be recalled that the First Governor-General commissioned the then Premier of NSW to
become the First Prime Minister as to form a Government but this was handed back and
subsequently Barton was given the commission and succeeded to form a Government. Hence the
30 governor-General is to seek to enable to have a government to be formed irrespective of what
number of Ministers are in Parliament. Indeed, Barton was not at the time elected to the
Parliament, but within sec 64 the governor-General, as was done with E Barton can appoint a
Minister (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
35 (INDEPENDENT) to form a Government or for that myself, even so I am not a Member of
Parliament.
Appropriation bills should like other Bills allow time for passage and any DOUBLE
DISSOLUTION and therefore should be say submitted to the Parliament no later then the end of
the 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+p
arliament%22#fn50
QUOTE
45 Constitutional interpretation
The starting point for a principled interpretation of the Constitution is the
search for the intention of its makers[51].
END QUOTE
.
50 Hansard 19-4-1897 Constitution Convention Debates
QUOTE Mr. REID:

I have looked through the works on the prerogatives of the Crown, and I find that they
really came as far as anything in these colonies is concerned to the question of the right to
assemble, dissolve, and prorogue Parliament, the pardoning of offenders, the issuing of
proclamations, and so on. That is about the whole scope of the prerogatives which [start
5 page 909] could be exercised under this Commonwealth. In the old country the Queen,
of course, is the supreme head of the Church. That does not apply here. She has the
power of making war or peace. That does not apply here. I am simply referring to things
within 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 the
10 Executive Council. The refusal to receive advice is not an executive act at all. An
executive 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.

15 Mr. REID: It is an exercise of the prerogative, which is not an executive act. The refusal
to accept advice does not fall within that category. The carrying out of the steps necessary
for 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 Kingdom
which the Queen makes, but that the counter signature of a Minister of State is required.
20 Mr. FRASER: How about a dissolution?
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 proclamation
would be an executive act. This difficulty would not arise. It would leave the independence
of the Governor as to accepting the advice of his Ministers absolutely intact. In England
25 nothing can reach the state of an act affecting the subjects, unless there is the signature of a
Minister 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. If
the British Constitution were being drawn up to-day, the main feature would be that the
Queen must act on the advice of responsible Ministers. The moment she does not you have
30 no constitutional Government at all.
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.
35 Mr. REID: Yes; my honorable friend is quite right. Of course this comes afterwards. By
section 2 of chapter I., Her Majesty would assign that prerogative to the Governor, amongst
other prerogatives, which she would assign to him. That prerogative would remain in the
Governor under section 2, chapter I. This executive power and authority of the
Commonwealth is something different altogether from the prerogative of the Crown.
40 The executive power and authority of the Commonwealth is a thing which must be
exercised by Ministers. The other is a prerogative matter which is safeguarded by the
section 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 their
45 successors are appointed.

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, could
5 the Governor dismiss them without a Minister?
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 to
press 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 in
10 clause 2 that Her Majesty's representative could exercise Her Majesty's prerogative. What
reason 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 of
Her Majesty, and the prerogative of the Governor-General, surely we can put in black and
15 white the principle of executive action which always is that the Governor shall act with the
advice of the Executive Council. Why could we not understand all this? What is the use of
putting it in at all? Did it not follow, as a mere matter of course, that if Her Majesty
appointed a Governor-General to represent her, he would exercise the powers which she
had and has? However, I do not press my suggestion, because it is practically in the
20 Constitution; but I would point out, that whilst we have been careful to put certain clauses
in 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 that
what he desires is secured in section 61, which is an adaptation of what is in the South
Australian Constitution Act, and is somewhat similar to the Victorian Act, it is just as well
25 not to take up much time in debating it. Executive Acts of the Crown are primarily
divided into two classes: those exercised by the prerogative-and some of those are not
even 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 to
30 make any alteration in this clause. The clause has been drafted in precisely the ordinary
way-it was similarly drafted in 1891-which is simply to express in a document of this
character 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,
35 because in a constitution of this kind it is no more possible than it is under the English
Constitution for the prerogative to be exercised as a personal act of the Crown. The
prerogative is never in these days execised as a personal act of the Crown as we understand
it, but there are certain acts which have become, either by the gradual march of statute law
or in any other way, nothing but ordinary executive acts and these are expressed to be
40 exerciseable only with the advice of the Executive Council. There are others again which
have not been expressly affected by legislation, and while these remain nominally in the
exercise of the Crown they are really held in trust for the people, although they are
exercises 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 legal
45 members.
Mr. REID: He was writing of an unwritten Constitution.

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 Imperial
Parliament has in all its drafting of the Colonial Constitutions drawn the distinction. Yet it
5 is understood that the Crown exercises the prerogative only upon ministerial advice, and it
is exercised not personally by the Crown, but only with the advice of the Ministry or a
Minister. 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, that
there there is a prerogative act expressed to be exercised with the consent of the Executive
10 Council.
[start page 911]
But we all know that it is exercised with the advice of those who must answer to the
people. The point of the matter is that where the expression of the Act is in the form
commonly used to indicate prerogative act-that is without the addition of the words, "in
15 Council"-that does not indicate any real personal power in the depositary of the Crown's
authority. 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 and
partly unwritten. Dicey says:
The survival of the prerogative, conferring as it does wide discretionary authority upon the
20 Cabinet, involves a consequence which constantly escapes attention.
The survival of the prerogative really means that where the prerogative act is to be
exercised 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 living
powers which must exist in such a Constitution as this. The Cabinet meets and
25 something is determined, or where the Act does not require the assistance of the Cabinet,
the Minister determines to do it. In both these eases a formal resolution is passed by the
Executive 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 it
30 relates to one of those duties which is to be performed by the Governor or Queen in
Council. Dicey goes on:
END QUOTE
.
35 governance!
.
HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
40 Mr. DEAKIN.- In this Constitution, although much is written much remains
unwritten,
END QUOTE
.
Hansard 8-2-1898 Constitution Convention Debates
45 QUOTE Mr. BARTON.-
Under a Constitution like this, the withholding of a power from the
Commonwealth is a prohibition against the exercise of such a power.
END QUOTE
.

This correspondence will also be published by me in my books in the INSPECTOR-RIKATI®
series on certain constitutional and other legal issues and as such have included at times lengthy
quotations so that besides you the reader can become familiar with what the Framers of the
Constitution debated.
5 .
The Commonwealth of Australia Constitution Act 1900 (UK) (The Constitution) is the
constitution that ultimately determines the rights, privileges, duties, etc of ever person within the
boundaries of the Commonwealth of Australia.
.
10 QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Covering clauses
2 Act to extend to the Queen’s successors
The provisions of this Act referring to the Queen shall extend to
Her Majesty’s heirs and successors in the sovereignty of the United
Kingdom.
15 END QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Covering clauses
.
QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Chapter II—The
Executive Government
61 Executive power
20 The executive power of the Commonwealth is vested in the Queen
and is exercisable by the Governor-General as the Queen’s
representative, and extends to the execution and maintenance of
this Constitution, and of the laws of the Commonwealth.
62 Federal Executive Council
25 There shall be a Federal Executive Council to advise the
Governor-General in the government of the Commonwealth, and
the members of the Council shall be chosen and summoned by the
Governor-General and sworn as Executive Councillors, and shall
hold office during his pleasure.
30 63 Provisions referring to Governor-General
The provisions of this Constitution referring to the
Governor-General in Council shall be construed as referring to the
Governor-General acting with the advice of the Federal Executive
Council.
35 64 Ministers of State
The Governor-General may appoint officers to administer such
departments of State of the Commonwealth as the
Governor-General in Council may establish.
Such officers shall hold office during the pleasure of the
40 Governor-General. They shall be members of the Federal
Executive Council, and shall be the Queen’s Ministers of State for
the 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 a
45 senator or a member of the House of Representatives.
QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Chapter II—The
.
50 governance!
.
It would therefore be an abuse of the Governor-General’s 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
55 Bills) merely as to secure some kind of appointment for Prime Minister. It

would be an unconstitutional interference by the Governor-General as to the
rights of elected Members of Parliament.
.
.
5 In my view what can be considered by a Governor-General is if the electors in a poll did or
didn’t 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 parliament
where as the coalition had a surge of people now voting for its representatives to be in the
10 Parliament then this may be translated into a perception that the electors didn’t like the kind of
government that existed at the time and expressed its opposition as to instead reduces the ALP
representation in the parliament. M
As such, the governor-General is entitled to consider if the electors in their limited way appeared
to show a disapproval to warded the way the ALP dominated government was conducting itself.
15 The governor-General is not to be swayed by certain political policies in the political campaign
unless 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 of
20 legislation where we even have the unconstitutional level of so called “local government”
referring to municipal and shire councils also charging for environment issues and so electors are
slugged three times even so constitutionally they only van be charged by one level of
Government.
25 governance!
.
I could refer to numerous other issues besides what I refer to below but what ought to be clear is
that there is a total disorganisation about what is or isn’t applicable and what is or isn’t
constitutional permissible and as such what should be done is the Governor-General to appoint a
30 person who will actually govern for what is constitutionally permissible. In fact were the
Governor-General fail to ensure such a person is appointed then the Governor-General can be
deemed to have acted with disregard to the rights of the general community.
governance!
35 .
Therefore a Governor-General has an obligation to ensure that those who are appointed as
advisors are competent to do so and not merely are those some political party may submit as
again this is not where the Governor-General acts as “Governor-General in council” to act upon
the advise of Ministers but where the constitutional liberty of the Governor-General is to so to
40 say appoint the best man for the job!
governance!
.
In the about 30 years of experiences in litigation as a Professional Advocate, Attorney,
45 CONSTITUTIONALIST, etc, and Author and publisher of books in the INSPECTOR-
RIKATI® series on certain constitutional and other legal issues I found time and time again a
sheer frustration by people where they were denied their constitutional rights and no proper
system 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,
50 Governor, Governor-General, judges, etc are provided with the same information as to their
constitutional rights, obligations, etc. Much disenchantment by the people relates to the all
powerful government using taxpayers monies to hire expensive lawyers no matter how much it is
in the wrong against people who seek no more but to preserve their constitutional rights. The
OFFICE-OF-THE-GUARDIAN is to be the vehicle that can avoid much of this kind of
litigation in the first place to make people and so also the government and judges aware of what
is constitutionally permissible and applicable.
.
5 Hence we need a person to be appointed Prime Minister who regardless of political views and
position will finally set in motion the creation of this OFFICE-OF-THE-GUARDIAN as an
INDEPENDENT advisory body and not merely that the Constitutional Policy Unit currently in
place are going along with whatever the Government of the Day may dictate, as now appears to
me to be how it operates.
10 Again; As such the Governor-General must look to commission a person for good
governance!
.
As such the Governor-General must act wisely to commission a person to form a government
that is not based upon political party lines but is one to serve as advisors as to within the concept
15 of the constitutional meanings and application. Hence being it Bob Katter, myself or for that
anyone else if the person has the ability to provide for “good governance” within the meaning
and application of the constitution then I have no doubt the parson will be able to form a
government 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 single
20 political party government because a larger spectrum of Members of Parliament then can have
some kind of input to the operations of the government and are more likely then to vote for
legislation 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 that
25 a Governor-General stop this rot and exercise real prerogative powers for the purpose: to
commission a person for good governance!
.
As such not some idealistic political hothead who wants to try to abuse and misuse his/her
powers 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) the
Commonwealth of Australia is and will always remain a “POLITICAL UNION” of the
colonies/province now called States and it is outside the ambit of s.128 to amend this as clause 2
is not part of the constitution itself and neither the pre-amble and hance beyond s.128 referendum
35 powers to be amended.
.
QUOTE
Mr. SYMON ( South Australia ).-
40 In the preamble honorable members will find that what we desire to do is to unite in one
indissoluble Federal Commonwealth -that is the political Union-"under the Crown of the
United Kingdom of Great Britain and Ireland , and under the Constitution hereby
established." Honorable members will therefore see that the application of the word
Commonwealth is to the political Union which is sought to be established. It is not intended
45 there to have any relation whatever to the name of the country or nation which we are going
to create under that Union . The second part of the preamble goes on to say that it is
expedient 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
50 "Commonwealth," and I do not propose to interfere with that in the slightest degree.
END QUOTE
.
I defeated comprehensively the Commonwealth of Australia after a 5-year epic legal battle on 19
July 2006 on all constitutional issues I raised including that Australians are and remain to be
“Subjects of the British Crown” and it is beyond constitutional powers for the Commonwealth
of Australia to interfere with this.
.
QUOTE 7-1-2010 CORRESPONDENCE
5 Australian Government
Department of the Prime Minister and Cabinet
ONE NATIONAL CIRCUIT
BARTON
10 Reference: c09/54418
Mr Gerrit Schorel-Hlavka
107 Graham Road
VIEWBANK VICTORIA 3084
15
Dear Mr Schorel-Hlavka
Thank you for your email of 24 October 2009 to the Prime Minister regarding the
Commonwealth’s power to legislate over citizenship. I have been asked to reply on the
20 Prime Minister’s behalf. I apologise for the delay in doing so.
‘Australian citizenship’ is defined in the Australian Citizenship Act 2007. Ordinarily, the
Government does not disclose its legal advice, including on constitutional issues, I refer
you, however, to the following passage from paragraph 4,179 of the Final Report of the
25 Constitutional Commission, 1988:
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
30 Constitution] or is one of the implied national powers. Its exercise by the Federal
Parliament, by enactment of the Australian Citizenship Act 1948… has certainly not
been called into question in any case before the High Court of Australia.
Yours sincerely
35 Brendan MacDowell
A/g Assistant Secretary
Legal Policy Branch
7 January 2010
QUOTE 7-1-2010 CORRESPONDENCE
40 .
QUOTE
Sir 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.
45 END QUOTE
.
Hansard 31-1-1898 Constitution Convention Debates (Official Record of the Debates of the
National Australasian Convention)
QUOTE Mr. SOLOMON.-
50 We shall not only look to the Federal Judiciary for the protection of our interests, but
also for the just interpretation of the Constitution:
END QUOTE
.

I can “assume” to be governor-General but that doesn’t make me to be the governor-General.
Likewise the Royal Commission could “assume” whatever but it doesn’t alter the meaning and
application of the constitution. The only manner the constitution can be amended is that the
electors are requested to vote on a proposal to amend the constitution and then the electors can
5 veto or approve the amendment. There is no power for the High Court of Australia to amend by
judgments the meaning and application of the constitution as it is beyond it’s judicial powers to
do so. As the Framers of the Constitution made clear the High Court of Australia could only
interpret the intentions of the Framers of the Constitution and if it was to adjudicate that there
was a certain power existing then it simply always existed. As such, the notion in Sue v Hill that
10 over time there was a change is not constitutionally viable because either it never was there or
always was there but gradual changes cannot be applied.
.
It must be clear that the terminology used by the Framers of the Constitution are; “British
subject”, “to make persons subjects of the British Empire.”, “with the consent of the
15 Imperial authority”, “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.”, “we are all alike subjects of the British Crown.” We have a High Court of
Australia that appears to me being political motivated to try to alter the Constitution by stealth
by endorsing a substitute Constitution!
20 .
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
25 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
30 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
35 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
40 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
45 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
50 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
5 Mr. SYMON.-The honorable and learned member is now dealing with another matter.
Would not the provision which is now before us confer upon the Federal Parliament the
power to take away a portion of this dual citizenship, with which the honorable and learned
member (Dr. Quick) has so eloquently dealt? If that is the case, what this Convention is
asked to do is to hand over to the Federal Parliament the power, whether exercised or not,
10 of taking away from us that citizenship in the Commonwealth which we acquire by joining
the Union. I am not going to put that in the power of any one, and if it is put in the power of
the Federal Parliament, then I should feel that it was a very serious blot on the Constitution,
and a very strong reason why it should not be accepted. It is not a lawyers' question; it is a
question of whether any one of British blood who is entitled to become a citizen of the
15 Commonwealth is to run the risk-it may be a small risk-of having that taken away or
diminished by the Federal Parliament! When we declare-"Trust the Parliament," I am
willing to do it in everything which concerns the working out of this Constitution, but I am
not prepared to trust the Federal Parliament or anybody to take away that which is a leading
inducement for joining the Union.
20 END QUOTE
.
Much has been argued about the purported Westminster Act and the Australia Act (1986) both
UK & Cth but none of those acts have any legal validity as to affecting the Commonwealth of
Australia Constitution Act 1900 (UK).
25 More over, the function of the governor-General is to ensure that all bills passed by the
parliament obtain Royal Assent, unless Her Majesty has an issue with it.
It means that Bill passed by the Parliament are null and void unless they have the Royal Assent
of the British Crown, as the Constitution is and remains to be a British colonial act.
Some basic are that constitutionally there is a provision for a Governor-General, and the
30 Governor-General is the appointed representative, under whatever title, of Her Majesty Queen
Elizabeth the Second of the British Empire also now referred to of the United Kingdom, etc.
.
QUOTE
35 Mr. HIGGINS (Victoria).-
We have no right, in this Constitution, to dictate to Her Majesty to who shall be her
agent. Her Majesty has a right to pick such agent as she thinks fit in any part of the
colony, and we have no right to say-"You shall not do so and so."
END QUOTE
40 .
Mr. HACKETT: I observe that the last line and a half is a virtual adoption of part of a
clause in the American Constitution; but the President there is practically never absent from
the seat of government. This clause, however, would allow the governor-general to draw
45 his full salary during a year's leave of absence; and I would point out that that leave of
absence rests with the authorities in Downing-street. The clause, therefore, would allow
the Colonial Office to arrange that the governor-general should draw his full salary during a
year's absence, when an administrator would have to be appointed in his place, who would
have to be paid a large salary for doing the work. Who would pay him?
50 An HON. MEMBER: The governor-general!
Clause, as amended, agreed to.
.
The Framers of the Constitution made it abundantly clear that the Governor-General has only
prerogative powers within the Commonwealth of Australia and not beyond. As such, the moment
the Governor-General travels outside the boundaries of the Commonwealth of Australia then
he/she must have appointed a deputy who for the time of the absenteeism executes all duties and
obligations ordinary associated with the Office of the Governor-General and is for this paid for
by the Governor-General. The constitution does not permit for the payment of two or more
5 Governor-Generals, under whatever title he/she might be known.
It also means that the Governor-General leaving the boundaries of the Commonwealth of
Australia cannot draw any expenses associated with that travel because the deputy in the seat to
conduct the affairs of the Governor-General would instead incur the expenses associated with
official business.
10 .
QUOTE Mr. HOLDER:
To the State everything that is local and relating to one State, to the Federal power
everything that is national and of inter-State importance. I pass from these two general
15 principles to a discussion of the only other preliminary I shall have to touch, and that is the
question of the appointment of the representative of the British Crown in the person of the
Governor-General. I do not take it that the words of the Enabling Act requiring us to frame
a Constitution for a Federation "under the Crown" bind us in the matter of whether or not
we shall elect our own Governor-General, because I take it that the legal bonds which
20 bind us to the mother-country, to the great British Empire,
END QUOTE
.
Hence, unless the governor-General was appointed by Her Majesty upon recommendation of the
Home Office, at 10 Downing Street, and was British Islands (UK) national any other
25 appointment has no legal value and any bills presented for Royal Assent never was given so if
the Governor-General was not validly appointed.
.
QUOTE
Mr. HOLDER: Yes, of course; the Commission from Her Majesty lies dormant until it
30 is actually called into existence by the absence of the Governor; but we can at this moment,
if the necessity arises, appoint a new occupant to the Supreme Court Bench, and that would
qualify him to fill the office of Acting-Governor if need required it. Therefore I think it is
clear that to that extent it lessens the argument that the main link that binds us to the
mother-country is the appointment of the Governor, and shows that it is an argument which
35 has not half so much weight as some of the speakers would have us believe. But I take a
very strong position against the election of the Governor-General by the Federation, not
because I believe it would mean losing a link which binds us to England, but that we should
have a man of such power and authority, derived directly from the people, that he would
certainly clash with the other powers and authorities we propose to set up under this
40 Constitution.
END QUOTE
.
QUOTE Mr. LYNE:
45 First of all, he raised the question of the appointment of the Governor-General for the
Federal 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 the
mother-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
50 small connecting link between the Australasian colonies-between a Federated
Australia 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
.
QUOTE
Mr. ISAACS.-I am not prepared to answer that question, but when we look at clause 52
5 we find these governing words on the very forefront of that clause-
That Parliament shall, subject to the provisions of this Constitution, have full power
and 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.
10 END QUOTE
.
This correspondence will be far too extensive to include all relevant details but it should be clear
that for anyone to ensure there is a democracy then this person must act in accordance as to what
is constitutionally permissible and applicable.
15 We have a Minister Kate Ellis as Minister for Youth, just that no such constitutional power is
existing for the Commonwealth. The problem with this position as well as others is that there is
no proper constitutional advisory body existing that scrutinise first all legislative proposals as to
it being constitutionally valid and permissible so that each Member of Parliament who is to vote
on a Bill or amendment of a Bill (proposed law) has the advise as to if the proposed Bill is
20 constitutionally permissible or not. For this the OFFICE-OF-THE-GUARDIAN is to be the
constitutional advisory council as to ensure that all Members of Parliament, all citizens, all
judges, etc, are provided with the same information regardless of their political colours.
.
25 QUOTE Mr. HIGGINS:
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
.
30 Hansard 31-1-1898 Constitution Convention Debates (Official Record of the Debates of the
QUOTE Mr. SOLOMON.-
Most of us, when we were candidates for election to the Federal Convention, placed
great stress upon it as affording a means of bringing justice within easy reach of the
35 poor man.
END QUOTE
.
The OFFICE-OF-THE-GUARDIAN is to be the GUARDIAN OF THE CONSTITUTION
as the High Court of Australia simply fails to be so. Judges are appointed to the High Court of
40 Australia who may have next to know knowledge about constitutional issues and indeed a Judge
refused to hand down a judgment upon the basis that he didn’t know the constitutional issue.
.
The High Court of Australia in regard of s.64 allowed the Governor-General to appoint a range
of secretaries to Ministers this even so the Framers of the Constitution specifically made clear
45 that the reason there had to be a Minister over a Department was so that the Minister was the sole
person responsible to the Parliament. Hence, the term “Responsible Minister”. The moment
there is a secretary to the Minister or by whatever other title a person is appointed then this is
unconstitutional because it removed the sole responsibility of the Minister.
.
50 Mr Ken Henry is known as the head of the Treasury, but the constitutional application of the
Minister of the treasury (referred to as the treasurer) is that he and he alone is the head of the
Department and no other person. You cannot therefore have a Head of a Department being a
public servant below a Minister because the Constitution doesn’t permit this.
.

We have found lately a sting of failures such as the death in regard of the insulation fiasco but
reality is that there was no constitutional powers to fund the insulation scheme. There is no
constitutional powers for an ETS scheme and there is no constitutional power for this SUPER
TAX as is proposed. We had the former Prime Minister Kevin Rudd having his “SORRY DAY”
5 speech but in reality it proved to be hollow words because he continued unabated with the
unconstitutional Northern Territory Intervention Act against Aboriginals.
.
Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the
10 QUOTE
Mr. HOLDER.-A measure would be valid while it was a Bill, and invalid when it
became a law.
Mr. ISAACS.-That is a very terse and correct way of putting it, and it proves the
absurdity of the provision. We are, in my opinion, making the Senate too strong a body. To
15 allow these matters to be carried into the Supreme Court is to say that the Senate cannot
protect itself, and that the states cannot protect themselves. Surely that is not to be thought
of for a moment. We want a people's Constitution, not a lawyers' Constitution. We
shall 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 the
20 clause in some way.
END QUOTE
.
Lawyers interpret the constitution as a lawyer but as a CONSTITUTIONALIST I interpret the
constitution to the intentions of the Framers of the Constitution. That is also why I so
25 comprehensively defeat the Commonwealth of Australia in litigation.
The appointment of Ms Julia Gilliard as I understood you to say was within s.64 and s.65 of the
constitution to the Office of the Prime Minister and again I urge you to consider the true meaning
and application of the constitution. While many a person claims that there can be no Prime
Minister because there is no reference of Prime Minister in the constitution the truth is that the
30 Framers of the Constitution extensively did debate there being a Prime Minister. However, the
Prime minister is one who is commissioned by the governor-General to get together a body of
people 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 a
Minister is failing to fulfil his/her duties then the Governor-General must take decisive action to
35 address this albeit without getting involved in political issues.
It should be understood that the Governor-General has no constitutional powers to act beyond the
boundaries of the Commonwealth of Australia and when leaving these boundaries must have a
person appointed, paid for by the Governor-General) who takes care of duties. There can not be
that a Governor-General so to say is taking a trip overseas at taxpayers expenses because that is
40 not permissible under the constitution.
I am well aware that there are people who are so to say blowing the horn of establishing a
republic but what they then do is to give a clear sign that they cannot be trusted as republicans
where they are unconstitutionally charging taxpayers for cost that is constitutionally not
permissible to be charged to the taxpayers (Consolidated Revenue funds).
45 Likewise this spending of a reported in excess of $400 million by the Office of the Prime
Minister is unconstitutional. It is nothing less then pork barrelling and this too is
unconstitutional. As a matter of fact so is all and any payments to former Governor-Generals and
former Ministers. And former Members of Parliament as once they loose their seat then it stops
any further payments. A Member of Parliament is not permitted to receive a salary as the
50 Constitution only allows for a “allowance” and only while a Member of Parliament is actually a
sitting Member of Parliament.
.

QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Part IV—Both Houses
of the Parliament
48 Allowance to members
Until the Parliament otherwise provides, each senator and each
5 member of the House of Representatives shall receive an
allowance of four hundred pounds a year, to be reckoned from the
day on which he takes his seat.
END QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Part IV—Both
Houses of the Parliament
10 .
The following will also make clear that the Framers of the Constitution intended to have CIVIL
RIGHTS and LIBERTIES principles embedded in the Constitution;
HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates of
the National Australasian Convention)
15 QUOTE Mr. CLARK.-
for the protection of certain fundamental rights and liberties which every individual
citizen is entitled to claim that the federal government shall take under its protection and
secure to him.
END QUOTE
20 .
HANSARD18-2-1898 Constitution Convention Debates (Official Record of the Debates of
QUOTE Mr. ISAACS.-
The right of a citizen of this great country, protected by the implied guarantees of its
25 Constitution,
END QUOTE
.
QUOTE
Mr. HIGGINS.-But suppose they go beyond their power?
30
Mr. GORDON.-It is still the expression of Parliament. Directly a Ministry seeks to
enforce improperly any law the citizen has his right.
END QUOTE
.
35 Well, as indicated the way everything operates the republicans if anything are showing to
electors that they are out to misuse and abuse their powers even further. The ongoing rorting is
continuing and allowed to do so because of the lack of legal accountability and hence the need
for the OFFICE-OF-THE-GUARDIAN.
.
40 QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Clause 9
The Constitution
9 Constitution [see Note 1]
The Constitution of the Commonwealth shall be as follows:
The Constitution
45 This Constitution is divided as follows:
Chapter I—The Parliament
Part I—General
Part II—The Senate
Part III—The House of Representatives
50 Part IV—Both Houses of the Parliament
Part V—Powers of the Parliament
Chapter II—The Executive Government
Chapter III—The Judicature
Chapter IV—Finance and Trade
55 Chapter V—The States
Chapter VI—New States
Chapter VII—Miscellaneous
Chapter VIII—Alteration of the Constitution
The Schedule
END QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Clause 9
5 .
QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Part I—General
2 Governor-General
A Governor-General appointed by the Queen shall be Her
Majesty’s representative in the Commonwealth, and shall have and
10 may exercise in the Commonwealth during the Queen’s pleasure,
but subject to this Constitution, such powers and functions of the
Queen as Her Majesty may be pleased to assign to him.
3 Salary of Governor-General
There shall be payable to the Queen out of the Consolidated
15 Revenue fund of the Commonwealth, for the salary of the
Governor-General, an annual sum which, until the Parliament
otherwise provides, shall be ten thousand pounds.
The salary of a Governor-General shall not be altered during his
continuance in office.
20 4 Provisions relating to Governor-General
The provisions of this Constitution relating to the
Governor-General extend and apply to the Governor-General for
the time being, or such person as the Queen may appoint to
administer the Government of the Commonwealth; but no such
25 person shall be entitled to receive any salary from the
Commonwealth in respect of any other office during his
administration of the Government of the Commonwealth.
END QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Part I—General
.
30 HANSARD 6-3-1891 Constitution Convention Debates (Official Record of the Debates of
QUOTE
Sir SAMUEL GRIFFITH: At all events, I would ask hon. members to pause before they
determine upon asking the Queen to surrender all her prerogatives in Australia. For my
35 part, I believe that all the prerogatives of the Crown exist in the governor-general as
far as they relate to Australia. I never entertained any doubt upon the subject at all-that is
so far as they can be exercised in the commonwealth.
END QUOTE
.
40 HANSARD 24-3-1897 Constitution Convention Debates (Official Record of the Debates of
QUOTE
Mr. O'CONNOR: I should certainly be altogether opposed to enacting anything in
the Constitution which would make either House at any time merely subservient to
45 the purposes of any Government, (Hear, hear.) The public interest stands higher than that.
My only reason for proposing this mechanical method of getting rid of the difficulty is that
it is to the public interest that the country should have the question settled one way or the
other.
END QUOTE
50 .
QUOTE Mr. THYNNE:
I shall quote from Mr. Dicey's recent work, which is very clear in its language. He says:

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.
5 END QUOTE
.
END QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Chapter II—The
61 Executive power
10 The executive power of the Commonwealth is vested in the Queen
and is exercisable by the Governor-General as the Queen’s
representative, and extends to the execution and maintenance of
this Constitution, and of the laws of the Commonwealth.
62 Federal Executive Council
15 There shall be a Federal Executive Council to advise the
Governor-General in the government of the Commonwealth, and
the members of the Council shall be chosen and summoned by the
Governor-General and sworn as Executive Councillors, and shall
hold office during his pleasure.
20 63 Provisions referring to Governor-General
The provisions of this Constitution referring to the
Governor-General in Council shall be construed as referring to the
Governor-General acting with the advice of the Federal Executive
Council.
25 64 Ministers of State
The Governor-General may appoint officers to administer such
departments of State of the Commonwealth as the
Governor-General in Council may establish.
Such officers shall hold office during the pleasure of the
30 Governor-General. They shall be members of the Federal
Executive Council, and shall be the Queen’s Ministers of State for
the Commonwealth.
Ministers to sit in Parliament
After the first general election no Minister of State shall hold office
35 for a longer period than three months unless he is or becomes a
senator or a member of the House of Representatives.
65 Number of Ministers
Until the Parliament otherwise provides, the Ministers of State
shall not exceed seven in number, and shall hold such offices as the
40 Parliament prescribes, or, in the absence of provision, as the
Governor-General directs.
66 Salaries of Ministers
There shall be payable to the Queen, out of the Consolidated
Revenue Fund of the Commonwealth, for the salaries of the
45 Ministers of State, an annual sum which, until the Parliament
otherwise provides, shall not exceed twelve thousand pounds a
year.
END QUOTE The Commonwealth of Australia Constitution Act 1900 (UK) Chapter II—The
50 .
The above makes it very clear that a Minister can only be appointed to serve the British Crown
and to serve as an advisor of the Governor-General. However, the ministers are entitled to
operate their Departments as they deem appropriate within constitutional and any legislative
powers provided for this. A considerable difference then the UK Minister who is not bound by
55 “for the peace, order and good government”, as Australian Ministers are.
.

Hansard 6-4-1897 Constitution convention Debates (Official Record of the Debates of the
QUOTE
Sir SAMUEL GRIFFITH: I am trying to get at the ideas which are underlying the
5 argument of hon. gentlemen. I confess I have not got at them yet. The hon. member, Mr.
Deakin, 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!
10 Sir SAMUEL GRIFFITH': Not in the east.
Mr. DEAKIN: The powers of our ministers are limited, and theirs are unlimited!
END QUOTE
.
15 QUOTE Sir EDWARD BRADDON.-
When we consider how vast the importance is that every word of the Constitution
should be correct, that every clause should fit into every other clause; when we
consider 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
20 have laid the foundation of lawsuits of a most extensive nature, which will harass the
people of United Australia and create dissatisfaction with our work, it must be evident
that too much care has not been exercised.
END QUOTE
.
QUOTE
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 the
30 provisions of the United States Constitution, or any other Constitution. No doubt in putting
together the draft of this Bill, those who were responsible for doing so used the material
they found in every Constitution before it, and probably they felt that they would be
incurring a great deal of responsibility in leaving out provisions which might be in the least
degree applicable. But it is for us to consider, looking at the history and reasons for these
35 provisions in the Constitution of the United States, whether they are in any way applicable;
and I quite agree with my honorable and learned friend (Mr. Carruthers) that we should be
very 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 in
time to come, when this Constitution has to be interpreted, every word will be weighed and
40 an interpretation given to it; and by the use now of what I may describe as idle words which
we have no use for, we may be giving a direction to the Constitution which none of us now
contemplate. Therefore, it is incumbent upon us to see that there is some reason for every
clause and every word that goes into this Constitution.
END QUOTE
45 .
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
50 Parliament to pass legislation that would really defeat all the principles inserted
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
.
5 Part V—Powers of the Parliament

51 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
10 (xxix) external affairs;
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 of
15 Australia to have powers to deal with other nations in regard of matters it had already existing
powers 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 a
constitutional power, hence any appointment (commission) for a Minister of sport is
20 unconstitutional. One cannot merely turn “external powers” a one for all power base because as
the Framers of the Constitution stated;
.
QUOTE
25 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
30 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
35 has a more serious aspect, and for that reason only I will ask permission to occupy a
few minutes in discussing it.
END QUOTE
.
The mere fact that the Constitution provides for certain legislative powers means that external
40 affair powers must be read within that power structure and not beyond. As such where there is no
provision 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 the
constitution as much as anyone else.
.
45 QUOTE
2 Governor-General
A Governor-General appointed by the Queen shall be Her
Majesty’s representative in the Commonwealth, and shall have and
may exercise in the Commonwealth during the Queen’s pleasure,
50 but subject to this Constitution, such powers and functions of the
Queen as Her Majesty may be pleased to assign to him.
END QUOTE
.
What we have therefore is that any appointment (commission) purportedly given by the
55 governor-General in regard of a portfolio that is unconstitutional then the commission likewise
remains unconstitutional. More over, where the salaries of the Ministers are payable to the queen
then the Queen bound by the constitution can only be paid for salaries of Ministers that are
commissioned to serve as advisors to the Governor-General according to what is constitutionally
permissible. Likewise the payment of the governor-General is payable to the Queen.
5 .
When a company engages a check out chick (cash register attendance) then it would be absurd
for this person to take out of the till her own wages as she ultimately has to wait for the employer
to 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 the
10 Monarch to then decide how much she pays the Minister/Governor-General in what manner. The
moment a Mini9ster/Governor-General leaves office then no further payments can be made out
of the consolidated Revenue Funds to the Queen, albeit the queen may desire to fund the former
Minister/Governor-General out of her own pocket but that is nothing to do with Australian
taxpayers. Indeed, Sir Grey was a Governor-General of South Africa and later became Prime
15 Minister of New Zealand and surely Her majesty wasn’t going to provide him with a pension of
one and later an additional pension for another. Her Majesty is entitled to appoint anyone
subsequently of having served as a Governor-General to serve elsewhere in the Monarchy as
Governor-General and it could hardly be held that each country had to pay this person then with
a lifetime pension. As such, the moment a Governor-General/Governor/Minister seizes to occupy
20 the office previously held then all payments come to an end.
The moment a Member of Parliament seizes to hold a seat in the Parliament then all payment of
“allowances” stop. Any Member of Parliament who is not otherwise self employed or employed
and neither holds a office as a Minister is technically unemployed as the “allowance” is not and
never can be deemed to be a salary as it is an “allowance”.
25 .
QUOTE
66 Salaries of Ministers
There shall be payable to the Queen, out of the Consolidated
Revenue Fund of the Commonwealth, for the salaries of the
30 Ministers of State, an annual sum which, until the Parliament
otherwise provides, shall not exceed twelve thousand pounds a
year.
67 Appointment of civil servants
Until the Parliament otherwise provides, the appointment and
35 removal of all other officers of the Executive Government of the
Commonwealth shall be vested in the Governor-General in
Council, unless the appointment is delegated by the
Governor-General in Council or by a law of the Commonwealth to
some other authority.
40 END QUOTE
.
QUOTE
3 Salary of Governor-General
There shall be payable to the Queen out of the Consolidated
45 Revenue fund of the Commonwealth, for the salary of the
Governor-General, an annual sum which, until the Parliament
otherwise provides, shall be ten thousand pounds.
The salary of a Governor-General shall not be altered during his
continuance in office.
50 END QUOTE
.
A public servant can only serve the Government within the provisions of the constitution and as
such 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 valid
55 department. The Department of the Aged is a valid Department. The Department of Water and

Environment is not because the framers of the Constitution made clear that this was to remain
with the States.
.
While the so called “stimulus package” of billions of dollars was being spend on numerous
5 items most of it was all unconstitutionally used because the Commonwealth of Australia had no
constitutional powers as to the kind of spending that took place.
Likewise the tax exemption of diplomates, etc, is beyond constitutional powers because the
Commonwealth 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 hence
10 tax free income for politicians and former politicians is unconstitutional.
As the Framers of the Constitution made clear it could be on a sliding scale for all Australians
but not to exclude some people and not others.
This is also why the Northern Territory Intervention Act is unconstitutional because it is not
within s.51(xxvi) of the constitution and neither within the ambit of s.122 of the constitution.
15 Likewise the proposed ETS is not a taxation for the “whole” of the Commonwealth. The same
with the “SUPER TAX” on mining companies.
.
Again, I have no issue with having a Prime Minister because the Framers of the Constitution all
along intended that there would be a Prime Minister and the Governor-General albeit the CEO
20 would be there in a supervisory role and not being hands on as to run the government. However,
having an Office of the Prime minister is where it goes wrong and the same with having a Prime
Minister then having more then $400.00 million as some slash funds for pet projects (pork
barrelling) as this again undermines the entire set up of the constitution. The only way any
Commonwealth monies can be spend without being for the “whole” of the commonwealth is
25 through the s.101 Inter-State Commission, as this was specifically set up and must always exist
for the purpose to allow trade and commerce laws to be applied in consideration of what is best
for each state.
What we have however is that the Inter-State commission has been railroaded, albeit
unconstitutionally, for the so called CoAG (Council of Australian Governments). What wee have
30 is this ridiculous notion that the Commonwealth acting on behalf of the States now is
conferencing with the States but not on what it has on constitutional powers but so to say to
blackmail the States into submission to hand over more and more legislative powers and even
that is all done unconstitutional, however the issue is far and wide and already extensively
canvassed in my published books in the INSPECTOR-RIKATI® series on certain
35 constitutional and other legal issues and so doesn’t need now to be repeated in this
correspondence.
.
Where there is no constitutional power for an Office of the Prime Minister then one cannot
appoint anyone to the Office of the Prime Minister as it would be an invalid appointment. It
40 would to undermine the constitutional set up and I view no Governor-General can permit to act
in defiance of the constitution which is the very source of power for a Governor-General to be
appointed.
.
It doesn’t matter if it is a Minister or Governor or Governor-General they are all bound to swear
45 alliance or make affirmation to the British Crown as this is a British constitution. Hence, where it
appears 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 an
affirmation to Australia and the people of Australia rather then to Her Majesty in who’s employ
she only can be appointed then she neither is constitutionally be permitted to draw any salary for
50 being a purported Minister. As a matter of fact the constitution doesn’t permit any member of
parliament to be employed otherwise while serving as a Member of parliament other then as a
Minister of the Crown and clearly where Ms Julia Gilliard didn’t want to acknowledge her
service to the British Crown then she by this acted in breach of s.44.

Do consider “But subsection (iv) does not apply to the office of any of the Queen’s Ministers
of State for the Commonwealth, or of any of the Queen’s Ministers for a State,” and as Ms
Julia Gillard and for this other Ministers who failed to swore an oath or affirmation to the British
Crown then they are all constitutionally disqualified from sitting in the Parliament.
5 .
QUOTE
44 Disqualification
Any person who:
(i) is under any acknowledgment of allegiance, obedience, or
10 adherence to a foreign power, or is a subject or a citizen or
entitled to the rights or privileges of a subject or a citizen of a
foreign power; or
(ii) is attainted of treason, or has been convicted and is under
sentence, or subject to be sentenced, for any offence
15 punishable under the law of the Commonwealth or of a State
by 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 pension
payable during the pleasure of the Crown out of any of the
20 revenues of the Commonwealth; or
(v) has any direct or indirect pecuniary interest in any agreement
with the Public Service of the Commonwealth otherwise than
as a member and in common with the other members of an
incorporated company consisting of more than twenty-five
25 persons;
shall be incapable of being chosen or of sitting as a senator or a
member of the House of Representatives.
But subsection (iv) does not apply to the office of any of the
Queen’s Ministers of State for the Commonwealth, or of any of the
30 Queen’s Ministers for a State, or to the receipt of pay, half pay, or
a pension, by any person as an officer or member of the Queen’s
navy or army, or to the receipt of pay as an officer or member of
the naval or military forces of the Commonwealth by any person
whose services are not wholly employed by the Commonwealth.
35 END QUOTE
.
Where the schedule to the Act is not a schedule to clause 9 (The constitution) then it neither can
be amended by the Commonwealth of Australia and hence any oath/affirmation by any
Governor-General, governor and/or Minister must be as per schedule oath or affirmation. Failing
40 this then the oath/affirmation is invalid. It may be stated that President Barack Hussein Obama
had to re-swear the oath in the oval office when it was discovered the original oath had not been
properly made.
.
45 QUOTE
Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that we
are all alike subjects of the British Crown.
END QUOTE
.
QUOTE
In the preamble honorable members will find that what we desire to do is to unite in one
55 United Kingdom of Great Britain and Ireland , and under the Constitution hereby
established." Honorable members will therefore see that the application of the word
there to have any relation whatever to the name of the country or nation which we are going
5 That is, for admission into this political Union, which is not a republic, which is not to
"Commonwealth," and I do not propose to interfere with that in the slightest degree.
END QUOTE
.
10 As such, if there is no monarchy there can be no “Queen of Australia”. If the title of “Queen of
Australia” really means the British Crown then Heather Hill clearly was qualified to be a
Member of Parliament. Again consider Calvin’s case 7 coke Report 1a, 77 ER 377 (1608),
which I view sets it out considerably.
QUOTE
15 4. And as to the fourth, it is less than a dream of a shadow, or a shadow of a dream: for it
hath been often said, natural legitimation respecteth actual obedience to the sovereign at
the time of the birth; for as the antenati remain aliens as to the Crown of England, because
they were born when there were several Kings of the several kingdoms, and the [7-Coke-27
b] uniting of the kingdoms by descent subsequent cannot make him a subject to that Crown
20 to which he was alien at the time of his birth: so albeit the kingdoms (which Almighty God
of his infinite goodness and mercy divert) should by descent be divided, and governed by
several Kings; yet it was resolved, that all those that were born under one natural
obedience while the realms were united under one sovereign, should remain natural
born subjects, and no aliens; for that naturalization due and vested by birthright,
25 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.
END QUOTE
And
30 QUOTE
3. Where the King hath several kingdoms by several titles and descents, there also are the
ligeances 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 the
words of the plea before remembered.
35 3. Leges. From the several and distinct laws of either kingdom, they did reason thus:
1. 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
40 England cannot be a natural subject to the' King, as of his kingdom of England.
END QUOTE
And
QUOTE
By all which it is manifest, that the protection and government of the King is general over
45 all his dominions and kingdoms, as well in time of peace by justice, as in time of war by
the sword, and that all be at his command, and under his obedience.
END QUOTE
And
QUOTE
50 3. There be regularly (unless it be in special cases) three incidents to a subject born. 1.
That 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 be
considered; for he cannot be a subject born of one kingdom that was born under the
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
5 born there since the Crown of England was out of actual possession thereof, are
subjects 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
10 natural subject. And therefore if any of the King's ambassadors in foreign nations,
have 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
15 there, that issue is no subject to the King, though he be born within his dominions, for
that 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 their
20 birth they were under the ligeance and obedience, of another King) are aliens born, in
respect of the time of their birth.
END QUOTE
Again
QUOTE
25 yet it was resolved, that all those that were born under one natural obedience 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 by judgment of
law a natural subject at the time of his birth, become an alien by such a matter ex post
30 facto.
END QUOTE
.
Moller v Board of Examiners for Legal Practitioners [1999] VSCA 116 (30 July 1999)
QUOTE
35 10. The judge rejected the application. His Honour's reasons included that, in swearing
allegiance 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, in
effect, to Australia. His Honour said that the fact that the appellant is a dedicated
republican was not to the point and that the swearing of the oath would not change that
40 fact nor prejudice the appellant in that regard. His Honour also said that it was
appropriate that the appellant swear an oath of allegiance to the Head of State of
this country in the same fashion as any other officer of the Court.
END QUOTE
.
45 It should be understood no one forces anyone to make an oath or affirmation and any republican
who desires not to do so as is per schedule is not required to do so albeit neither then can take up
a position in an office to serve the monarchy. While Moller v Board of Examiners for Legal
Practitioners it nevertheless is a clear example that if you do not want to swear alliance to the
Monarch then forget about a job that is an employment with the Monarch.
50 There is no constitutional provision for anyone to act as Governor-General, Governor
and/or Minister of the Crown when refusing to make an oath of alliance or an Affirmation
of alliance. After all a Governor-General, Governor and/or a Minister of State (Minister of
the Crown) all are to be employed by the Monarch. Hence, any true republican would never
then accept any position in the employment of the monarch and therefore any republican who is
in the employment of the Monarch is in my view a fake republican. The constitution is the rule of
law of which all other laws that are enacted derives from!
.
5 The following applies as much to Federal laws of the Commonwealth of Australia as it does to
federal laws in the USA; http://familyguardian.tax-
tactics.com/Subjects/LawAndGovt/ChallJurisdiction/AuthoritiesArticle/AuthOnJurisdiction.htm
QUOTE
37 Am Jur 2d at section 8 states, in part: "Fraud vitiates every transaction and all contracts.
10 Indeed, the principle is often stated, in broad and sweeping language, that fraud destroys
the validity of everything into which it enters, and that it vitiates the most solemn contracts,
documents, and even judgments."
END QUOTE
And
15 QUOTE
The general misconception is that any statute passed by legislators bearing the appearance
of law constitutes the law of the land. The U.S. Constitution is the supreme law of the land,
and any statute, to be valid, must be in agreement. It is impossible for both the Constitution
and a law violating it to be valid; one must prevail. This is succinctly stated as follows:
20 The general rule is that an unconstitutional statute, though having the form and name
of law, is in reality no law, but is wholly void, and ineffective for any purpose; since
unconstitutionality dates from the time of its enactment, and not merely from the date
of the decision so branding it. An unconstitutional law, in legal contemplation, is as
inoperative as if it had never been passed. Such a statute leaves the question that it
25 purports to settle just as it would be had the statute not been enacted.
Since an unconstitutional law is void, the general principles follow that it imposes no
duties, confers no rights, creates no office, bestows no power or authority on anyone,
affords no protection, and justifies no acts performed under it. . .
A void act cannot be legally consistent with a valid one. An unconstitutional law cannot
30 operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the
fundamental law of the land, it is superseded thereby.
No one is bound to obey an unconstitutional law and no courts are bound to enforce it.
END QUOTE
Sixteenth American Jurisprudence
35 Second Edition, 1998 version, Section 203 (formerly Section 256)
.
The same applies to an unconstitutional appointment, that where an appointment was made in
conflict with what the constitution permits then the appointment is ULTRA VIRES. This then
also means that anyone who nevertheless collects any payments purporting to hold a certain
40 position under the Crown but not having made the appropriate oath/affirmation then defrauds any
monies that was received as such and all and any decisions, etc, this person makes is and remains
to be without validity.
.
Republicans are not the only one who have to consider this as monarchist who are trying to
45 turn the Commonwealth of Australia in a Monarchy likewise are undermining the
application of the constitution.
The constitution has embedded in it that those born within the Commonwealth of Australia, other
then children of diplomates, are “Subjects of the Queen”. As such republican and monarchist
alike should recognise that Australians are because they reside in the Commonwealth of
50 Australia but are British nationals by nationality as much as for example the residents of Hong
Kong were living under the British Imperial status and so likewise those in India when the
British Monarchy ruled there, and indeed the Framers of the Constitution made this clear also!
See below quotations!
.

QUOTE
Mr. HOLDER.-I accept that statement of the honorable member, but I submit that his
proposed new clause might be interpreted as I interpreted it by some authority, and, in that
5 case, we should be landed in a very unfortunate position. Dr. Quick's amendment is even
worse, because it provides that-
All persons resident within the Common-wealth, being natural-born or naturalized

subjects of the Queen, and not under any disability imposed by the Parliament, shall be
citizens of the Commonwealth.
10 Now, it might be easily conceivable that, simply because a man was born under
British rule in India, China, or elsewhere, therefore, of necessity, on arriving in one of
these colonies, he could claim citizenship of the Commonwealth. Is it not a mistake to
stereotype in the Commonwealth Bill at this period our opinions on this subject? Would it
not be better to authorize the Federal Parliament to deal with this question, not once only,
15 but from time to time as circumstances and [start page 1791] conditions may change? I
hope that both the proposals will be withdrawn or negatived, and that at a later stage an
opportunity will be given to Dr. Quick to try again what he tried yesterday, a provision
which, as then proposed, or with a slight alteration of the words, would give to the Federal
Parliament power to determine the citizenship of the Commonwealth from time to time,
20 and thus to meet any changes of conditions, which certainly ought to be met if they arise,
but which cannot then be met if we now arrive at some decision and stereotype it once for
all in this Constitution.
END QUOTE
.
25 It is a mistake to argue that a person who resided in another part of the Commonwealth under
British rule then has to swear an oath of alliance when coming into the Commonwealth of
Australia because a person who is already a “Subject of the Queen” cannot swear alliance to the
same Queen in some other persona.
.
QUOTE
Mr. OCONNOR.-If they are political rights, they are conferred already by virtue of a
person being an inhabitant of a state entitled to certain political rights, in such state. The
honorable member cannot intend to give a different right to a citizen politically under the
35 government of the Commonwealth from the right of a citizen of any state. The rights are
coterminous-coincident-and the political rights of every citizen of the Commonwealth who
is within the Commonwealth arise by virtue of his being a citizen of a state.
END QUOTE
.
QUOTE
Mr. OCONNOR.-I have said already that I have no objection to some definition being
given in another clause, laying down who shall be citizens of the Commonwealth for what
it may be worth, and I can see one point of view in which there may be some reason for it.
45 What I am pointing out now is that this proposal does not enlarge in any way the right to
deal with the question, because the rights of the states politically are absolutely secured by
the Constitution in its present form. But I see no objection to some kind of a definition
being given of the rights of citizenship, that is to say, that every citizen of a state shall be a
citizen of the Commonwealth, for this reason, that I can see one aspect in which new rights
50 are given to the whole Commonwealth, that is to say, rights which they hold as members of

the Commonwealth. The right to appeal to the courts of the Commonwealth is a new right.
For instance, at the present time a resident of New South Wales cannot sue a resident of
Victoria, except by going through a certain process, and getting judgment, and having that
enforced, but be cannot sue him directly.
5 END QUOTE
.
QUOTE
Mr. OCONNOR.-I have said that I do not see that such a trust in the Federal Parliament
10 would be effective. I sympathize with the honorable member's view, but I think it will be
carried out by some kind of definition of citizenship, and I was pointing out the only aspect
in which it appears to me it might be desirable to have some such definition, and that is,
you are creating new rights to citizens of the Commonwealth as citizens of the
Commonwealth in regard to your courts. You establish courts for the Commonwealth, and
15 every citizen of the Commonwealth is entitled to the use of those courts.
Mr. HIGGINS.-Who is he?
Mr. OCONNOR.-That is what has to be defined. A citizen of the Commonwealth is at

present any person who has political rights which the Constitution gives him, which he gets
by virtue of being a resident of a state. That is exactly the reason upon which the
20 citizenship definition in the American Constitution stands.
Mr. HOLDER.-Would it not avoid difficulty to leave the Federal Parliament to define it
from time to time?
Mr. OCONNOR.-That really gives no power whatever. It does not carry out the
honorable member's object, because the power to deal with persons coming from
25 outside, in regard to their being members of the community, is given in the powers to
deal with immigration and aliens. The power to deal with citizens of states is limited by
the rights of the states at the present time, and if you want really to have a definition which
gives some right and some entity to a citizen of the Commonwealth, as different from a
citizen of a state, I think you ought to do it in some way by definition.
30 END QUOTE
.
QUOTE
Mr. WISE (New South Wales).-As one of those who strenuously denied that there was a
35 necessity to define federal citizenship, I entertain some doubt, as Mr. O'Connor does,
whether this proposal really meets the difficulty. I feel, as he does, that to confer on the
Parliament the power to deal with federal citizenship does not give them the power to
define the citizenship. They can only act within the limits of the Constitution, and,
inasmuch as it might be necessary in defining the citizenship to trench in some way on the
40 rights of the state, or to limit in some way the citizenship of the state, or to make certain
consequences follow from being citizens of the state, it might be held that the matter is
open to doubt, that any definition passed by virtue of this proposal would be ultra
vires.
END QUOTE
45 .
QUOTE
Mr. GLYNN-But I want to prevent the Federal Parliament having power to cut down
citizenship. By adopting this amendment you will really limit the effect of the provision
50 which Dr. Quick desires to insert as clause 120A. If you here empower Parliament, from
time to time, to limit the Commonwealth citizenship, you will prevent us subsequently
enacting in the Bill that Commonwealth citizenship shall be state citizenship, or vice
versa, because you are putting it in the power of Parliament to say what citizenship is to
be, although you may subsequently attempt to provide that the citizenship of the state shall
5 be the citizenship of the Commonwealth, and vice versa.
END QUOTE
.
QUOTE Mr. KINGSTON (South Australia).-
10 It would be simply monstrous that those who are born in England should in any way
be subjected to the slightest disabilities. It is impossible to contemplate the exclusion
of natural-born subjects of this character; but, on the other hand, we must not forget,
that there are other native-born British subjects whom we are far from desiring to see
come here in any considerable numbers. For instance, I may refer to Hong Kong
15 Chinamen. They are born within the realm of Her Majesty, and are therefore native-born
British subjects.
Sir EDWARD BRADDON.-Are British treaty ports British territory?
Mr. KINGSTON.-Hong Kong is undoubtedly a British possession, and a Hong Kong

Chinaman is undoubtedly a native-born British subject. Thus, honorable members will see
20 what difficulties might arise if the privileges of citizenship of the Commonwealth were
extended to all British subjects. If that were done, we should be landed in a difficulty
against which it is well to provide. I think the very best, thing under all the circumstances is
to do-what is recommended by Dr. Quick, and give to the Federal Parliament power to,
legislate on this subject as occasion arises. I have no fear whatever but that they will make
25 wise provisions on the subject-provisions uniform throughout the Commonwealth-for
extending to all British subjects those privileges which they ought to possess, while at the
same time safeguarding the rights of the Commonwealth.
END QUOTE
.
QUOTE Mr. SYMON
The object of all who are represented here is that the Union of these states is of itself
to confer upon the citizens of the states the rights of citizens of the Commonwealth.
END QUOTE
35 .
QUOTE
Mr. SYMON.-I agree with the honorable member, and I also think it is unlikely that the
Commonwealth will seek to derogate from it, but I will not place a power in the hands of
40 the Commonwealth which will enable them to derogate from it, and if that is not done it
will be merely a dead letter. Is there any citizen of the Commonwealth who is not already a
citizen of the state? State citizenship is his birthright, and by virtue of it he is entitled to the
citizenship of the Commonwealth. When you have immigration, and allow different
people to come in who belong to nations not of the same blood as we are, they become
45 naturalized, and thereby are entitled to the rights of citizenship.
Sir EDWARD BRADDON.-They are citizens if they are British subjects before they
come here.
END QUOTE
.

While the High Court of Australia purported that Heather Hill (Sue v Hill)was not entitled to sit
in the Senate the truth is that she was entitled to do so because the moment she settled in
Australia she became a citizen of that State and by this entitled to all Commonwealth rights.
Nothing in the Constitution shows that the High Court of Australia can somehow amend the
5 application of the constitution by its judgments, as to allow for this then why have a constitution
at all and have unelected members of the judiciary determine whatever the constitution shall be
from time to time?
.
10 QUOTE Mr. BARTON.-
Providing, as this Constitution does, for a free people to elect a free Parliament-giving
that people through their Parliament the power of the purse-laying at their mercy
from day to day the existence of any Ministry which dares by corruption, or drifts
through ignorance into, the commission of any act which is unfavorable to the people
15 having this security, it must in its very essence be a free Constitution. Whatever any
one may say to the contrary that is secured in the very way in which the freedom of
the British Constitution is secured. It is secured by vesting in the people, through their
representatives, the power of the purse, and I venture [start page 2477] to say there is
no other way of securing absolute freedom to a people than that, unless you make a
20 different kind of Executive than that which we contemplate, and then overload your
Constitution with legislative provisions to protect the citizen from interference. Under
this Constitution he is saved from every kind of interference. Under this Constitution
he has his voice not only in the, daily government of the country, but in the daily
determination of the question of whom is the Government to consist. There is the
25 guarantee of freedom in this Constitution. There is the guarantee which none of us
have sought to remove, but every one has sought to strengthen. How we or our work
can be accused of not providing for the popular liberty is something which I hope the
critics will now venture to explain, and I think I have made their work difficult for
them. Having provided in that way for a free Constitution, we have provided for an
30 Executive which is charged with the duty of maintaining the provisions of that
Constitution; and, therefore, it can only act as the agents of the people. We have
provided for a Judiciary, which will determine questions arising under this
Constitution, and with all other questions which should be dealt with by a Federal
Judiciary and it will also be a High Court of Appeal for all courts in the states that
35 choose to resort to it. In doing these things, have we not provided, first, that our
Constitution shall be free: next, that its government shall be by the will of the people,
which is the just result of their freedom: thirdly, that the Constitution shall not, nor shall
any of its provisions, be twisted or perverted, inasmuch as a court appointed by their
own Executive, but acting independently, is to decide what is a perversion of its
40 provisions? 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
45 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,
50 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. Having provided for all these things,
I think this Convention has done well.
END QUOTE
.
5 It must be clear that any person who comes from a place that is under the British Crown and was
a person born under the British Monarchy then is a “Subject of the British Crown” and does not
have and neither can somehow make an oath of alliance or otherwise make an Affirmation to
somehow naturalise because it is and remain to be the same Monarch.
Lets now have a consideration about what the Court stated;
10 .
QUOTE
Legal practitioners - Admission to practise as barrister and solicitor - Application by
candidate to be excused from taking oath of allegiance - Test for exercise of discretion -
15 Whether applicant prejudiced - Observations on significance of oath of allegiance at
admission of candidates to practice - Supreme Court Rules Ch. II rr. 14.05, 14.06 - Legal
Pracitce Act 1996 (No. 35) s.6(1)(c). Practice and procedure - Application to be excused
from taking oath of allegiance refused - Whether order in an interlocutory application -
Supreme Court Act 1986 (No. 110) s.17A(4)(b).
20 END QUOTE
.
QUOTE
6. The appellant now seeks to be admitted to practice in Victoria as a legal practitioner. This
25 proceeding, by originating motion filed 23 February 1999, seeks an order under Rule
14.06 of Chapter II of the Supreme Court Rules to excuse him from taking the oath of
allegiance prescribed under Rule 14.05. These rules provide:-
"Oaths - Forms 2-14A and 2-14B
14.05 (1) A person applying to be admitted to legal practice in Victoria shall take the oath
30 of allegiance and an oath of office.
(2) The oath of allegiance may be in Form 2-14A and the oath of office may be in Form
2-14B.
Excuse
14.06 (1) The Court may upon application excuse a person from taking the oath of
35 allegiance.
(2) The application shall be made by originating motion and heard no later than 30 days
before the first day of the month in which application for admission to legal
practice is to be sought."
7. These rules were passed in furtherance of s.6(1)(c) of the Legal Practice Act 1996. S.6(1)
40 provides:-
"6. Admission to Legal Practice
(1) The Supreme Court may admit a person to legal practice in Victoria if he or she -
(a) meets the requirements of the admission rules; and
(b) pays the admission fee; and

(c) takes the oath, or makes the affirmation, required by the Court."
8. The application was heard by a judge on 1 March 1999. The appellant supported his
application by an affidavit sworn by him on 23 February 1999. The respondent filed no
material regarding the matter but argument was presented on its behalf by counsel at the
5 hearing of the application.
9. The grounds upon which the appellant sought to be excused were set out in his affidavit
and the relevant portions of the affidavit were summarised, but in some detail, in the
reasons for judgment of the judge delivered on 10 March 1999. In summary, the appellant
said he had a conscientious objection to taking an oath of allegiance to the Queen
10 stemming from his sincere and genuine belief that to take an oath is a solemn, serious and
sincere act, which should not be undertaken lightly or without full and proper
consideration. His conscientious objection to taking the oath was said to arise from his
belief that Australia should adopt a republican form of government. He said that he was
committed to amendment of the Commonwealth Constitution so as to achieve the
15 republican form of government and was an advocate for that cause and that his advocacy
for an Australian republic would be compromised by his having made an oath of
allegiance to the Queen. The appellant had made a pledge of loyalty to Australia when he
became an Australian citizen in February 1995. It was his experience that advocates for
an Australian republic who had sworn an oath to the Queen were accused of hypocrisy.
20 He said that he was genuinely troubled about swearing an oath of allegiance when Her
Majesty has little to do with the practical governance of Australia. He swore that he was
genuinely troubled by having to swear an oath, the substance of which he did not actually
believe and which was inconsistent with his stated beliefs. There is no suggestion that his
Honour did not accept any of the statements made by the appellant in his affidavit.
25 10. The judge rejected the application. His Honour's reasons included that, in swearing
allegiance 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, in
effect, to Australia. His Honour said that the fact that the appellant is a dedicated
republican was not to the point and that the swearing of the oath would not change that
30 fact nor prejudice the appellant in that regard. His Honour also said that it was
appropriate that the appellant swear an oath of allegiance to the Head of State of
this country in the same fashion as any other officer of the Court.
11. The appellant now appeals to this Court. His notice of appeal includes grounds that the
judge erred in refusing his application without regard to the matters put before him in
35 support of the exercise of his discretion to grant the application; in failing to have any or
any proper regard to various matters in respect of which his Honour should have
exercised his discretion with regard to the grant of the application, matters such as the
appellant's commitment of allegiance upon his formal adoption of Australian citizenship,
his conscientious and reasoned objection to swearing a false oath; the fact that the judge
40 was invested with a discretion to excuse the appellant from taking the oath; and that the
judge erred in deciding that there was no prejudice to the appellant if he took the oath, or
that it was necessary for the appellant to show prejudice which he would suffer in the
consequence of his swearing the oath.
12. When the matter came on for hearing in this Court, the question was raised whether the
45 appellant required leave to appeal in that any order refusing the appellant's application
was an order "in an interlocutory application"; see Border Auto Wreckers (Wodonga) Pty
Ltd v. Strathdee [1997] 2 V.R. 49; Supreme Court Act 1986 s.17A(4)(b). The Court
decided that it would defer ruling on this question and that it would hear an application

for leave, together with the appeal itself. I shall deal with the question whether leave is
necessary later in these reasons.
13. The appellant accepts at the outset that the discretion to excuse compliance with the
requirement to take the oath of allegiance is unfettered (Re Miller [1979] V.R. 381 at
5 383-384; Nicholls v. Board of Examiners [1986] V.R. 712 at 720) but contends that the
discretion must be exercised, and exercised judicially. So much may be conceded. But in
considering whether there has been an error in the exercise of judicial discretion, the
question is to be approached on the basis that "there is a strong presumption in favour of
the correctness of the decision appealed from, and that the decision should therefore be
10 affirmed unless the court of appeal is satisfied that it is clearly wrong": Australian Coal
and Shale Employees Federation v. The Commonwealth (1953) 94 C.L.R. 621 at 627;
Oldaker v. Currington [1987] V.R. 712 at 718. This Court cannot substitute its own view
merely because it would have exercised the discretion differently. Furthermore, the
application to be excused from taking the oath of allegiance is not to be treated lightly;
15 Miller at 384.
14. Mr Bevan-John for the appellant began by submitting that the requirement in Chapter II
of the Rules that an applicant for admission to legal practice should swear two oaths was
beyond the power of the Court and invalid and the appellant was not required,
accordingly, to take the oath of allegiance. The argument, which I confess I had some
20 difficulty in understanding, appeared to proceed in the following manner: s.6(1)(c) of the
Legal Practice Act authorised the Supreme Court only to require that an applicant take a
single oath; accordingly, the Rules made by the Court were invalid in that (a) two oaths
were required, and (b) the Court could not exempt a particular applicant from taking one
only of those oaths; to do so, it was submitted, would do violence to the enabling words
25 of s.6(1)(c). In my view there is nothing in this argument, first because words in the
singular ordinarily include the plural, and secondly because an entitlement in the court to
require the taking of an oath would implicitly include a right to exempt an individual
applicant from doing so. In rejecting this argument, I note that it was not put to the judge
at first instance and, indeed, if it had been correct, there would have been no occasion for
30 the making of this application in the first place.
15. The first submission of Mr Bevan-John directed to the merits of the decision appealed
from was that the judge's reasons would preclude any exemption from ever being granted,
since the factors relied on would apply to all candidates, certainly to all immigrants, and
on this view the exemptive power would never be applied to an immigrant. I do not agree.
35 It is clear from the structure of the judge's reasons that his Honour gave careful attention
to each of the grounds asserted by the appellant for seeking exemption, including his
conscientious objection, his having taken the citizenship pledge and the prejudice he said
he would face if he swore an oath of allegiance to the Queen. As Lush, J. Said in Board of
Examiners v. Whalen [1983] 1 V.R. 437 at 442, "No doubt it would be more difficult for
40 an Australian national with [substantial residential] ties to obtain an exercise of the
discretion in his favour than it would be for a person having a single foreign nationality",
but I cannot detect in the judge's reasons any suggestion that in his view the exemptive
power in Rule 14.06 could never be applied to an immigrant; nor does that conclusion
seem to me to follow from anything in his Honour's reasoning. A part of this submission
45 was that his Honour had not in fact exercised the discretion under Rule 14.06(1) at all.
But it is clear from a reading of His Honour's reasons that this submission cannot be
accepted. I should say that most of the submissions made on behalf of the appellant in
this Court would more properly have been addressed to a judge first considering whether
to exercise the discretion to excuse under Rule 14.06(1), rather than to an appellate court
50 considering whether the judge at first instance had erred.

16. Next Mr Bevan-John made a series of submissions the general purport of which was to
diminish the significance of the taking of the oath of allegiance and its position in the
Legal Practice Act 1996. For example, the submission was made that our legal system
does not need an applicant to swear allegiance personally to the Queen, that the oath has
5 no purpose other than a ceremonial one, and that swearing an oath of allegiance to the
Queen is not required for admission in a number of jurisdictions in Australia and, for that
matter, New Zealand. It was submitted that it is not desirable for people to take oaths
declaring the truth of matters they do not believe in or for a legal system to compel the
taking of such oaths. We were reminded that the requirement to take the oath has changed
10 in recent years to permit persons in appropriate cases to be excused from taking the oath
of allegiance.
17. Although there is substance in a number of these individual submissions, they are, in my
view, not really to the point in this appeal and of little assistance to the appellant since
they raise no question of error in the judge's reasons. As Street, C.J. Said in Re Howard
15 [1976] 1 N.S.W.L.R., 641 at 646:-
"The taking of the oath of allegiance in association with admission to

practice is part of the formal ceremony attendant thereon, but the law is
clear that the bond of allegiance exists at common law, independently of
whether the oath be taken or not. The formal taking of the oath has
20 significance in a ceremonial, but not a legal, sense. It is customary, on
admission ceremonies, to remind those newly admitted that the
significance of the oath is that the Sovereign represents the fountainhead
of law and justice - the oath is a pledge of service to the symbol of law and
justice ."
25 And in Miller, at 383, Young, C.J. said:-
"But it remains important that a candidate for admission should take an
oath of allegiance to the Sovereign. Parliament has provided that it is one
of the essential prerequisites for admission to practise. In so providing
Parliament has required a candidate for admission to do what every high
30 office holder in this State does upon his assumption of office. The
provision is thus a recognition by Parliament of the importance attaching
to admission to practise as a barrister and solicitor."
18. The thrust of these passages remains, I think, relevant, notwithstanding that it is now the
Rules of Court, rather than Parliament itself, which impose the obligation to take the oath
35 of allegiance, and also that various governments may have in cases such as the adoption
of Australian citizenship substituted a pledge of loyalty to Australia for the oath of
allegiance to the Sovereign.
19. Ms Ryan, who appeared for the Board of Examiners, submitted that a duty of allegiance
is owed to the Sovereign by all those resident within her realm whether or not an oath of
40 allegiance is taken; Joyce v. DPP [1946] A.C. 347 at 366 and 374; Howard at 645-646;
and Nicholls at 729-730. As the judge put it in paragraph (22) of his reasons, the
requirement that the appellant take an oath of allegiance as a condition of being admitted
to practice is nothing more than a recognition of that duty. The concept of allegiance was
discussed, and the reciprocal nature of the rights and obligations involved was explained,
45 by Ormiston, J. in Nicholls at 728.
20. Mr Bevan-John next submitted that prejudice is not a strict criterion for this appeal, but
that, if the application is refused, the appellant would effectively be permanently
precluded from being admitted to practice in Victoria. He will, it was submitted, continue

as a para-legal until the oath requirement is changed. The relevant ground in the notice of
appeal is somewhat differently worded, claiming that the judge wrongly found no
prejudice to the appellant, and erred in deciding that the appellant needed to show
prejudice to succeed.
5 21. There is nothing in the reasons for judgment to suggest that the judge held that proof of
prejudice was a prerequisite to the success of the application. A number of cases have
demonstrated that if an appellant can show a real possibility of prejudice or prejudice of a
tangible kind, as a consequence of taking the oath of allegiance, the application to be
excused has stronger prospects of success than if no such prejudice is likely; Miller at
10 384; Whalen at 439-440, 441-442 and 443; Re Macgregor [1983] 1 V.R. 427, at 428, and
Nicholls per Ormiston, J.at 730. In Macgregor, Gobbo, J. said at 429 that:-
"The notion of prejudice is one normally related to material matters and

not personal matters that do not involve detriment. In this question of
prejudice I would not, however, see mere inconvenience caused by a
15 diligent bureaucracy but not ultimately leading to loss of any real rights as
sufficient to constitute prejudice. Nor would I see it as sustaining an
exercise of discretion if the ambit of that discretion is unlimited. It would
not seem an appropriate ground for exercise of discretion confined by the
usual considerations of prejudice, or, on the wider view, to have regard to
20 the inconvenience of possible disputation if the evidence did not also
satisfy the Court that the applicant would ultimately be deprived of a
meaningful right or privilege."
22. Ms Ryan submitted in this Court that here the prejudice relied on by the appellant is
largely embarrassment and a perceived conflict between his republican sentiments and
25 the oath he is required to take as a matter of law in this State if he wishes to be admitted.
Ms Ryan pointed to the fact that, unlike the applicants in other reported cases, the
appellant does not face the possibility of losing his nationality of a foreign state by taking
such an oath. The submission continued that the appellant's claim was that he would be
prejudiced because if the appeal were refused he could not be admitted to practice. Ms
30 Ryan submitted that this was the wrong test, the relevant prejudice being that which the
appellant would suffer if he took the oath, not any prejudice that might result from a
conscious choice not to do so. As Ms Ryan said, the appellant is under no compulsion to
take the oath of allegiance. If he chooses not to do so, and cannot therefore satisfy the
conditions for admission in this State, that is the result of his election. There was, it
35 seemed to me, considerable force in Ms Ryan's submissions.
23. No suggestion was made that the appellant is not sincere or genuine in the statements he
made in his affidavit. The difficulty with the appellant's submissions on this aspect is,
once again, that they do not lead to the conclusion that any error has been shown in the
judge's reasons. His Honour, in my view, carefully considered the matters put forward in
40 the appellant's affidavit and was not persuaded by them. Mr Bevan-John's submissions
have not led me to conclude that his Honour failed to take into account any relevant
matter, or gave undue weight to any factor, or otherwise is shown to have erred in his
reasoning.
24. Mr Bevan-John's next submissions related to the appellant's personal position. He put it
45 that the appellant has already publicly and deliberately declared his allegiance to
Australia and that the purpose of his taking the oath has been fulfilled by his pledge upon
taking citizenship. He submitted that it was unfair to use the exemptive power under the
Act to excuse those who do not want to make any commitment of allegiance to Australia
at all and to deny it in respect of one who has already made the solemn pledge of that
allegiance when he formally undertook Australian citizenship. These submissions are, in
my view, not only irrelevant to the substance of this appeal, they ignore the purposes of
taking an oath of allegiance to which reference was made in cases such as Howard and
Miller, and also the proposition stated by Lush, J. In Whalen at 442, which has already
5 been quoted. Mr Bevan-John also put it that by taking the present Victorian form of the
oath the appellant could not become more loyal than he already is to Australia. He
submitted that the appellant was sincere in his beliefs and acting bona fide in seeking this
exemption, that this was a perfect case for granting exemption since allegiance has
already been pledged and the swearing of the oath served no legitimate purpose. These
10 arguments again do not suggest any error in the reasoning of the judge; rather, they are an
invitation to this Court to exercise afresh on appeal the discretion already exercised by the
judge at first instance, an invitation which this Court is unable to accept unless error is
first shown in the reasoning of the judge. Part of Mr Bevan-John's submission was that
his Honour paid no regard to the particular circumstances of the appellant but, again, the
15 reasons for judgment showed this argument also to be without substance.
25. Mr Bevan-John's final submission invited the Court to vary the form of oath of allegiance
since the Legal Practice Act merely requires the swearing of an oath as "required by the
Court", and the form of the oath is then simply prescribed by the Rules. Mr Bevan-John
conceded that this Court could only consider and rule on such a submission if error had
20 first been found in the judge's reasons and I therefore need not consider this question
further. In my view, all of the grounds in the notice of appeal should be rejected.
26. I return to the question whether the appellant requires leave to appeal, that is, whether the
refusal of the application was an order in an interlocutory application. As Gibbs, C.J. Said
in Carr v. Finance Corporation of Australia Ltd [No. 1] (1981) 147 C.L.R. 246 at 248,
25 the question is "whether the judgment or order appealed from, as made, finally
determines the rights of the parties." Callaway, J.A. In Little v. State of Victoria
(unreported) Court of Appeal, 30 June 1998, said that:-
"This question is to be answered having regard to the legal, rather than

practical, effect of the judgment or order. It is not sufficient that the rights
30 of the parties with respect to some such matter as discovery or
interrogatories are, or even that a preliminary issue is, decided."
27. As Mr Williams says in his work Civil Procedure, Victoria at para. 64.01.430, the
question whether an order is final or interlocutory cannot always be answered readily and
the attempt to frame a definition which will enable a judgment or order to be recognised
35 as final or interlocutory by resort to some formula has caused difficulty. In Hall v.
Nominal Defendant (1966) 117 C.L.R. 423 at 443, Windeyer, J. Said that a judgment or
order is interlocutory unless it "finally determine[s] the rights of the parties in a principal
cause pending between them."
28. If there is any principal cause relevant to the present appeal, I should myself have thought
40 that it was the applicant's application for admission to practice. The application to be
excused from taking the oath of allegiance could not, in my view, sensibly be described
as a principal cause, nor does it finally determine the rights of the parties or create any
estoppel precluding the making of a second application. The appellant could, I think,
bring a further application to be excused from taking the oath (D.A. Christie Pty Ltd v.
45 Baker [1996] 2 V.R. 582), on new material, although, if the new material was available
when the first application was brought, the second would probably be stayed as an abuse
of process. If it be said that this application stands alone, being made before the filing of
an application for admission, I note that an order granting or refusing preliminary
discovery (before action is brought) under Rule 32.03 or 32.05 has been held to be
interlocutory; see e.g. Schmidt v. Won [1998] 3 V.R. 435; and an order made on an
application to extend time under a limitation statute for the commencement of a
proceeding is interlocutory whether the application is granted or refused; D.A. Christie
Pty Ltd v. Baker.
5 29. In my view, the order refusing the appellant's application to be excused from taking the
oath of allegiance is interlocutory, and the appellant required leave to appeal.
30. Having regard to the conclusions I have reached as to the merits of the appeal, I propose
that the application for leave to appeal be refused, and the appeal therefore be dismissed
as incompetent.
10 WINNEKE, P.:
31. I agree for the reasons given by Charles, J.A., and subject to what I shall say hereafter,
that the order made by Beach, J. was made in an interlocutory application and that leave
to appeal should be refused because it has not been demonstrated that the exercise of his
Honour's discretion has miscarried or is attended with sufficient doubt to warrant the
15 grant of leave. Nor, in my view, has it been demonstrated that his Honour's order is
productive of any relevant prejudice to the applicant in the event that it remains
undisturbed.
32. The requirement which the Court imposes on those seeking admission to practise as
barristers and solicitors in this State to take an oath or make an affirmation of allegiance
20 retains a significance which goes beyond the mere academic and the pompous. Young,
C.J. explained its importance in Re Miller [1979] V.R. 381 at 383 in terms of the statutory
recognition given by the Parliament to the oath of allegiance and its administration to
persons carrying out significant functions in this State.
33. To my mind his Honour's comments remain valid, notwithstanding the differences to be
25 found between the terms of s.6 of the Legal Practice Act 1996 and those which existed in
s.5 of the Legal Profession Practice Act 1958. As Street, C.J. said in Re Howard [1976] 1
N.S.W.L.R. 641 at 643, the significance of the oath being administered to those wishing
to practise as barristers and solicitors is its reminder to them that their role will be to
serve law and justice in the State, of which the Sovereign is the fountainhead.
30 34. It is, therefore, not surprising that the Court, in exercising its role as the ultimate
controller of the profession, imposes as one of the prerequisites for admission to practise
a promise of allegiance and does not lightly entertain applications to exempt persons from
that obligation. Where, as here, exemption was sought on the grounds of a strongly held
commitment to a republican model of government and a fear of compromising conscience
35 and principles if required to take an oath of allegiance, it is equally, in my view, not
surprising that His Honour exercised his discretion against exemption.
35. Strong, and sincerely held, political beliefs as to the structure and style of government can
be presumed to exist in many, if not most, applicants for admission to practice in this
State. But, as I have endeavoured to point out, the Court's function in admitting applicants
40 to participate in the administration of justice is not concerned with affirming or denying
such political beliefs or in promoting one style of government to the exclusion of another.
If, as may well happen, a republican model of government is hereafter adopted in this
country, and the law requires a pledge of loyalty to the country and to the maintenance of
its laws, it would to my mind be equally unacceptable to grant exemptions to persons
45 from such a pledge on grounds that they held sincere beliefs that the appropriate form of
government was a constitutional monarchy.

36. The Court requires its practitioners to be aloof from such matters. I agree with the
respondent's contention that, if an applicant feels compelled to decline to take the oath of
allegiance on the basis of the strength of his or her political beliefs, any prejudice which
flows stems only from a conscious election driven by personal belief and is not the
5 prejudice of a tangible kind which has, in some cases, founded the exercise of the Court's
discretion to exempt an applicant from the taking of the oath. For these, and the reasons
given by Charles, J.A., I agree that the application should be refused.
37. My agreement with the reasons of Charles, J.A. includes an agreement with his reasons
for rejecting the applicant's submission, not made to the judge below, that s.6(1)(c) of the
10 Legal Practice Act does not require an applicant for admission to take the oath of
allegiance.
BATT, J.A.:
38. I agree with both judgments which have been delivered.

WINNEKE P:
15 39. The formal order of the Court will be that the application for leave to appeal from Beach,
J.'s order is refused.
40. The appeal is dismissed, accordingly, as incompetent.

END QUOTE
.
20 Therefore getting back to the oath or affirmation of any governor-General, governor or minister
of State it must therefore be a valid oath/affirmation and failing to do so the purported
appointment never took place..
.
An Act to Constitute the Commonwealth of Australia 1900 (UK), in the Schedule to that
25 Act.
An Act to Constitute the Commonwealth of Australia 1900 (UK)
Schedule
QUOTE
OATH
30 I, A.B., do swear that I will be faithful and bear true allegiance to Her Majesty
Queen Victoria, Her heirs and successors according to law.
SO HELP ME GOD!
AFFIRMATION
I, A.B., do solemnly and sincerely affirm and declare that I will be faithful and
35 bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors
according to law.
(NOTE: The name of the King or Queen of the United Kingdom of Great Britain
and Ireland for the time being is to be substituted from time to time.)
END QUOTE
.
The Monarch has considerable powers but again always subject to the Constitution! Prerogative
powers can be exercised as the monarch desires provided it doesn’t interfere with the provisions
5 of the constitution. Hence, the governor-General can only validly appoint a Minister provided
this is done within the provisions of the Commonwealth of Australia Constitution Act 1900
(UK) and so its schedule.
.
10 the National Australasian Convention)
QUOTE Mr. BARTON (New South Wales).-
Then, again, there is the prerogative right to declare war and peace, an adjunct of
which it is that the Queen herself, or her representative, where Her Majesty is not
present, holds that prerogative. No one would ever dream of saying that the Queen
15 would declare war or peace without the advice of a responsible Minister.
END QUOTE
.
20 QUOTE
Mr. DEAKIN: We can make an exception in favour of imperial interests. We have no
desire to interfere with the imperial prerogative in matters of war and peace!
END QUOTE
.
QUOTE
Sir JOHN DOWNER.-Now it is coming out. The Constitution is made for the people
and the states on terms that are just to both.
Mr. DEAKIN.-It is made for the lawyers under this clause.
30 Sir JOHN DOWNER.-I do not think so. If you say "Trust the Parliament," no
Constitution is required at all; it can simply be provided that a certain number of
gentlemen shall be elected, and meet together, and, without limitation, do what they like.
Victoria would not agree to that. But there is a desire to draw the very life-blood of the
Constitution, so far as the states are concerned, by this insidious amendment, which would
35 give the Houses authority from time to time to put different constructions on this most
important part of the Constitution. I hope we will do as we have done in many instances
before, in matters that have been much debated-adhere to the decision we have already
arrived at.
END QUOTE
40 .
QUOTE Mr. HOLDER.-
Surely there would be at least one representative out of the whole Senate and one
member of the House of Representatives, who would have individuality enough, and
45 strength enough, to get up and challenge the order of any particular measure which
might be disorderly under this clause of the Constitution.
Mr. ISAACS.-They would not all sit on the same side of the House.
Mr. HOLDER.-I should think not. They would not all be Ministerialists, or all members
of the Opposition, or all members of any particular party; and I cannot believe that any Bill
50 which contained anything objectionable at all could pass through both Houses of the
Federal Legislature without finding some one member of either of the two Houses who
would rise to a point of order, and have such a Bill laid aside of necessity as being out of
order under this provision.
END QUOTE
5 .
QUOTE
Mr. CARRUTHERS (New South Wales).-It is worth while considering the stages that a
proposed law has to go through, and the opportunity afforded to a member of either House
10 or a member of the Executive to call attention to any infraction or infringement of the
Constitution. It does not require a majority of the members of the House of Representatives
to insist that the Constitution shall be obeyed in the matter of procedure; it only requires
one solitary member to rise to a point of order, and the Speaker has to give a legal
interpretation of the rules of procedure. It only requires one member of the Senate to call
15 the attention of the President to the fact that a Bill is introduced contrary to the
Constitution for that proposed law to be ruled out of order. It does not require a
majority of the states to insist that the Constitution shall be obeyed, because a
majority of the states cannot by resolution infringe the Constitution. Neither House
could pass the standing order which would give the majority power to dissent from the
20 Speaker's or President's ruling. The standing orders only confer certain explicit power.
They give no power to either House to pass an order which would enable its members to
amend the Constitution.
END QUOTE
.
25 HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
Mr. BARTON.-this Constitution is to be worked under a system of responsible
government
END QUOTE
30 .
QUOTE
Mr. BARTON.- We have simply said that the guarantee of the liberalism of this
Constitution is responsible government, and that we decline to impair or to infect in any
35 way that guarantee.
END QUOTE
.
QUOTE
40 Mr. BARTON.- Of course it will be argued that this Constitution will have been
made by the Parliament of the United Kingdom. That will be true in one sense, but
not true in effect, because the provisions of this Constitution, the principles which it
embodies, and the details of enactment by which those principles are enforced, will all
have been the work of Australians.
45 END QUOTE
.
QUOTE
Mr. BARTON.- Having provided in that way for a free Constitution, we have
50 provided for an Executive which is charged with the duty of maintaining the
provisions of that Constitution; and, therefore, it can only act as the agents of the
people.
END QUOTE
.

QUOTE
Mr. DEAKIN.- In this Constitution, although much is written much remains
unwritten,
5 END QUOTE
.
QUOTE Mr. DEAKIN.-
What a charter of liberty is embraced within this Bill-of political liberty and religious
10 liberty-the liberty and the means to achieve all to which men in these days can
reasonably aspire. A charter of liberty is enshrined in this Constitution, which is also
a charter of peace-of peace, order, and good government for the whole of the peoples
whom it will embrace and unite.
END QUOTE
15 .
QUOTE
Mr. SYMON (South Australia).- We who are assembled in this Convention are about
to commit to the people of Australia a new charter of union and liberty; we are about
20 to commit this new Magna Charta for their acceptance and confirmation, and I can
conceive of nothing of greater magnitude in the whole history of the peoples of the
world than this question upon which we are about to invite the peoples of Australia to
vote. The Great Charter was wrung by the barons of England from a reluctant king. This
new charter is to be given by the people of Australia to themselves.
25 END QUOTE
.
It also should be understood that for example the Victorian Parliament purported to replace its
State constitution in 1975 and the Queensland parliament purported to have done so in 2001
albeit neither those or any other constitutional amendments are constitutionally valid unless and
30 untill the State electors approved such an amendment by a State referendum!
.
QUOTE
Dr. COCKBURN: All our experience hitherto has been under the condition of
35 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
40 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,
45 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
The Hon. A. DEAKIN: I say the great bulk of them are of that character, and am open to
refutation if I am wrong, I should say that the whole of the thirty-seven subjects, but,
indisputably, the great bulk of them, are subjects on which no question of state rights and
state interests could arise except by the merest accident. It is, as the right hon. gentleman
admitted, a grave defect in our constitution if we permit these questions to be left for all
time to be determined in a purely states house, or by a state referendum, when those
questions are not state questions-when they ought to be decided, not on state lines, but on
5 national lines, and by a national referendum.
END QUOTE
.
QUOTE
10 Mr. BARTON: I do not think it is a good thing under any circumstances that a
judge under a Federal Constitution, at any rate, should have anything to hope for
from Parliament or Government.
Mr. KINGSTON: Hear, hear.

Mr. BARTON: Where you have a sovereign Parliament, and the judge is merely the
15 interpreter of the laws as they arise, and not the guardian of a Constitution in the
same sense as a federal judge is, the same circumstances remain in part; but where you
will have a tribunal constantly charged with the maintenance of the Constitution against the
inroads which may be attempted to be made upon it by Parliament, then it is essential that
no judge shall have any temptation to act upon an unexpected weakness-for we do not
20 know exactly what they are when appointed-which may result, whether consciously or
not, in biasing his decisions in favor of movements made by the Parliament which
might be dangerous to the Constitution itself.
END QUOTE
.
25 As a professional advocate, Attorney, CONSTITUTIONALIST, etc, I have been for decades
assisting parties in litigation even so I am not a lawyer as such, and found to defeat lawyers time
and again because they simply fail to appropriately understand and comprehend the true meaning
and application of the constitution.
.
30 I am being bombarded by people who all desire their own kind of constitution to be implemented
and generally they are all based upon misconceptions and this is because they grew up in being
taught what the constitution stood for even so it was actually differently.
.
http://uk.reuters.com/article/topNews/idUKSYD17219720080414
35 QUOTE
Female Australia governor reopens republic debate
Mon Apr 14, 2008 7:17am BST
40 By Rob Taylor
CANBERRA (Reuters) - The appointment of Australia's first woman Governor-
General, who represents the Queen, has sparked speculation Australia might become
a republic and break from Britain in five years.
Australians rejected a 1999 vote on becoming a republic and while there remains
45 overwhelming liking for the Queen, around 70 percent of Australians favour the
country becoming a republic, according to surveys.
Australian Prime Minister Kevin Rudd, a republican, announced on Sunday that
Quentin Bryce, a state governor and a former sex discrimination commissioner,
would be Governor-General in September.

"Will QB (Quentin Bryce) be the final Governor-General to see off QE (Queen
Elizabeth), and her heirs and successors," asked the mass-selling Herald Sun
newspaper in Melbourne. "In short, will our first female GG be our last?"
"Having made this historic choice, Mr Rudd has given himself a five-year window
5 to work out a way of finding a way to devise an acceptable system to the people," it
said on Monday.
Rudd as prime minister is Australia's head of government, but formally reports on
many matters to the Queen's representative. The governor-general's role is largely
symbolic, but does have little-used powers and former holder John Kerr sacked
10 Labor Prime Minister Gough Whitlam during a 1975 constitutional crisis and
replaced him with conservative opponent Malcolm Fraser.
Rudd, prior to meeting the Queen last week in London, said he was sure Australia
would become a republic, but it was "not a top order priority" for his Labor
government, elected last November.
15 "I would fully look forward to there being a spirited animated debate during the
course of this year and beyond on our future Constitutional arrangements and that
includes the republic," Rudd told Australian radio on Monday.
Former prime minister John Howard, a monarchist, engineered a 1999 republic vote
which split the country three ways between support for the Queen as head-of-state, a
20 popularly-elected president or a head-of-state chosen by the parliament.
Most Australians support a directly-elected presidency and rejected the model of one
chosen by lawmakers, preferring to keep the current system of government.
"If the government holds to its current policy, a referendum could happen within the
second term of a Rudd government," said Terry Fewtrell, the national deputy-
25 chairman of the Australian Republican Movement, said.
A weekend Taverner poll in the Sun-Herald newspaper said 69 percent of
respondents wanted the country to become a republic either as soon as possible, or
when the Queen leaves the throne.
The Australian newspaper said Bryce, 65, whose appointment won near-unanimous
30 support, was herself probably a republican at heart, having already backed a change
of Australia's national flag, which incorporates Britain's flag.
"When appointed Queensland Governor in 2003, she said she had great admiration
for the monarchy, which is about the minimum required of the Queen's
representative," wrote The Australian columnist Mike Steketee.
35 (Editing by Michael Perry and Valerie Lee)
END QUOTE
.
Now, how on earth can anyone claim that there is any support for changing to a republic where
those who professes a republic themselves are unaware what the current constitutional position is
40 of the Commonwealth of Australia.
.

For the record it is embedded in the constitution that the Union Jack is the flag for the
Commonwealth of Australia and that God Save the Queen is the national anthem.
Republicans also should keep in mind that what if hypothetically the Commonwealth of
Australia were to become a republic and then the Monarchist hijacked this to turn by backdoor
5 manner the commonwealth into a Monarchy? Then Republicans would so to say scream blue
murder claiming it cannot be done because the constitution doesn’t allow for this. Well, the same
with the current manner to try to use some backdoor manner to get rid of the Monarch. The
Commonwealth of Australia is neither a republic or a monarchy and anyone who doesn’t
understand this should first do as I did and learn what is really applicable and they might
10 discover that my books published in the INSPECTOR-RIKATI® series on certain
constitutional and other legal issues set it all out. What however in the meantime must be clear is
that those who take positions that are constitutionally under the British Crown must show due
and proper respect to the British Crown as failing this then who can have respect for those kind
of people? The rule of law cannot be enforced by deception, fraud, etc. The people are entitled
15 that those who are in certain positions themselves show due and proper respect to the rule of law.
Where then a person is commissioned and/or appointed but refuses to make the appropriate
oath/affirmation then for whatever it is worth it the commission/appointment is not valid and not
even the monarch can interfere with what is constitutionally required.
My issue is not if someone desires to be a republican or a monarchist rather my issue is that as a
20 CONSTITUTIONALIST I see neither of them currently to understand and comprehend what
the Commonwealth of Australia stands for.
It is a “POLITICAL UNION”
.
25 QUOTE
In the preamble honorable members will find that what we desire to do is to unite in one
United Kingdom of Great Britain and Ireland , and under the Constitution hereby
30 established." Honorable members will therefore see that the application of the word
there to have any relation whatever to the name of the country or nation which we are going
35 That is, for admission into this political Union, which is not a republic, which is not to
"Commonwealth," and I do not propose to interfere with that in the slightest degree.
END QUOTE
.
40 For the above I view that the establishment of the OFFICE-OF-THE-GUARDIAN as a
constitutional advisory council, etc, to advice the government, the people, the Parliament and the
Courts upon constitutional powers and limitations is required as a matter of urgency so that
finally all Australians will get a proper understanding of what is constitutionally applicable.
The wasting of billions of dollars on the so called “stimulus package” could all have been
45 avoided had already the OFFICE-OF-THE-GUARDIAN been established because then each
Member of Parliament with any proposed law would have been alerted of which parts were
unconstitutional.
.
In my view the Governor-General as the representative of the Monarch is obligated to ensure that
50 this is urgently attended to. The Governor-General is not merely some puppet on a string for the
government of the day but has to perform an important role in the constitutional arrangements
and it is to me not relevant if the governor-General has republican or monarchistic views as all

that is relevant is that the Governor-General performs the position according to what is
constitutionally required and permitted and doesn’t act untowards the monarchy.
.
Those who desire to alter the constitutional framework should accept it must be done in a
5 constitutionally valid manner as to ignore this only will result to an example for others to
likewise to ignore what is constitutionally permissible or not. In the meantime however the
failure of a proper oath/affirmation by Ms Julia Gillard and others must not be ignored and
appropriate action to be taken to rectify any errors made.
.
10 As I indicated above a copy of this document will be published also.
.
MAY JUSTICE ALWAYS PREVAIL®

.
(Our name is our motto!)

15 .
Awaiting your response, G. H. Schorel-Hlavka


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Her Excellency Ms Quentin Bryce AC 25-8-2010

Governor General of the Commonwealth of Australia

25-8-2010 Page 1 Appointment of Prime Minister, etc

25-8-2010 Page 3 Appointment of Prime Minister, etc

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

20 Mr. FRASER: How about a dissolution?

Mr. SYMON: How about the appointment of Ministers?

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

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

25-8-2010 Page 4 Appointment of Prime Minister, etc

Mr. SYMON: No reason at all.

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

[start page 911]

25-8-2010 Page 6 Appointment of Prime Minister, etc

25-8-2010 Page 7 Appointment of Prime Minister, etc

25-8-2010 Page 10 Appointment of Prime Minister, etc

Mr. HIGGINS.-Why not?

25-8-2010 Page 14 Appointment of Prime Minister, etc

25-8-2010 Page 15 Appointment of Prime Minister, etc

25-8-2010 Page 17 Appointment of Prime Minister, etc

25-8-2010 Page 18 Appointment of Prime Minister, etc

5 Part V—Powers of the Parliament

25-8-2010 Page 21 Appointment of Prime Minister, etc

25-8-2010 Page 22 Appointment of Prime Minister, etc

25-8-2010 Page 26 Appointment of Prime Minister, etc

All persons resident within the Common-wealth, being natural-born or naturalized

25-8-2010 Page 27 Appointment of Prime Minister, etc

Mr. OCONNOR.-That is what has to be defined. A citizen of the Commonwealth is at

Sir EDWARD BRADDON.-Are British treaty ports British territory?

Mr. KINGSTON.-Hong Kong is undoubtedly a British possession, and a Hong Kong

25-8-2010 Page 29 Appointment of Prime Minister, etc

25-8-2010 Page 30 Appointment of Prime Minister, etc

"Oaths - Forms 2-14A and 2-14B

"6. Admission to Legal Practice

(a) meets the requirements of the admission rules; and

(b) pays the admission fee; and

25-8-2010 Page 31 Appointment of Prime Minister, etc

25-8-2010 Page 32 Appointment of Prime Minister, etc

25-8-2010 Page 33 Appointment of Prime Minister, etc

"The taking of the oath of allegiance in association with admission to

25-8-2010 Page 34 Appointment of Prime Minister, etc

"The notion of prejudice is one normally related to material matters and

"This question is to be answered having regard to the legal, rather than

25-8-2010 Page 37 Appointment of Prime Minister, etc

38. I agree with both judgments which have been delivered.

40. The appeal is dismissed, accordingly, as incompetent.

An Act to Constitute the Commonwealth of Australia 1900 (UK)

Mr. DEAKIN.-It is made for the lawyers under this clause.

25-8-2010 Page 40 Appointment of Prime Minister, etc

Mr. KINGSTON: Hear, hear.

25-8-2010 Page 42 Appointment of Prime Minister, etc

25-8-2010 Page 43 Appointment of Prime Minister, etc

25-8-2010 Page 44 Appointment of Prime Minister, etc

MAY JUSTICE ALWAYS PREVAIL®

(Our name is our motto!)

Awaiting your response, G. H. Schorel-Hlavka

25-8-2010 Page 45 Appointment of Prime Minister, etc

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