From: Gerrit Schorel-Hlavka [inspector_ rikati@yahoo.com.au]
Sent: Saturday, 4 August 2007 1:52 AM
Cc: inspector _rikati@yahoo.COm.au
Subject: Mr Michael Kirby - etc
Mr. Michael Kirby, High Court of Australia.
AND TO WHOM IT MAY CONCERN
Re; What is constitutionally appropriate - etc
Also; Request for copy of judgments.
A COPY OF THIS CORRESPONDENCE WILL BE PUBLISHED BY ME ALSO.
Sir,
for the record I am not having any litigation pending as to my own person!
I understand that you provided a dissenting judgment in the Jack Thomas case and criticised other judges for allowing the legislative provisions to remain on foot.
For years, I have been denied to access any EDU files such as the High Court of Australia judgments, and hence request you to have your staff forwarding me a copy in Word document format preferably and if possible in pdf file format also the judgments of all judges in this case.
On 27-5-2007 I published another book in the INSPEC TOR-RIKATI® series exposing what the High Court of Australia had concealed from its judgment as to avoid having to declare the so called WorkChoices legislation to be unconstitutional.
Again, I have no access to High Court of Australia judgments and so rely upon others to provide me copies
On 19 July 2006 I completed my last litigation (which lasted 5-years) successfully proving that despite past High Court of Australia judgments that compulsory voting in federal elections was constitutionally valid in fact it was not. As a "CONSTITUTIONALIST" I presented what the true intentions of the Framers of the constitution had been and this ensured I succeeded in the cases.
With the Jack Thomas High Court of Australia judgment, as I had with the WorkChoices judgment, I have the gut: feeling that the 5 judges failed to consider all relevant material. With WorkChoices I proved to be right and now inte4ho likewise prove this with the Jack Thomas case.
While the Framers of the Constitution intended to have the High Court of Australia to be the GUARDIAN OF THE CONSTITUTION and made clear it would defend the civil and other rights of the people, regretfully this is not to be so, as is proven time and again. Hence I pursue that the High Court of Australia is restructured and no person is appointed to the High Court of Australia to be a judge unless he/she is competent in constitutional issues.
As Mr Lionel Price CBE QC now has accepted from me that in fact the Australia Act 1986 is and remains to be unconstitutional, and he requested and was granted my permission to use my material in future.
As ought to be clear, the Commonwealth of Australia never was a dominion but a "POLITICAL UNION" and as such the Westminster Act 1931 is invalid for so far it relates to the Commonwealth of Australia as it purported that the Commonwealth of Australia was as a "dominion", to accept this would have been a clear breach of Section 120 of the constitution as it would have been to tantamount amend the Constitution without the consent of the People by way of Section 128 referendum.
The Australian Act 1986 (UK) could not be legally valid because of the Westminster Act being defective (ULTRA VIRES in relation to the Commonwealth of Australia) but also because as the United Kingdom became a member of the European Union then (as the British courts themselves held) the European Union Human Rights provisions apply to even' British legislation other then to British constitutional legislation. Hence, where the Australia Act 1986 was not a specific constitution act it means that Section 5 l(xxvi) would be in offence to the European Union Human rights provisions.
The Australian Act 1986 itself could neither be valid, not only because of the Westminster act 1931 being ULTRA VIRES but also because as the Framers of the constitution made clear that the Commonwealth of Australia (Federal Parliament) could not legislate as to the constitution. As they made clear at most the Federal Parliament could propose an amendment of the Constitution and then it was for the electors by way of Referendum to approve or veto this.
There is more to this. All property is vested in the Crown, and the constitution only gave judicial powers to the High Court of Australia to adjudicate within the terms of the Constitution. Hence, the High Court of Australia had no judicial powers as to go beyond the circumstances as existing at the time of federation. Therefore, the M.ABO decision in that regard was unconstitutional as it sought to purport a judicial capacity beyond the powers of the High Court of Australia. The Framers of the Constitution would never have federated if they had anticipated that the High Court of Australia was to revisit property ownership before federation. Indeed, they made clear that while New Zealand at the time had problems with their natives as to land rights this was not applicable in the Australia (the continent).
The purported Australia Act (Cth) would alter the structure of Crown ownership of all land to become Commonwealth ownership, meaning that the Commonwealth of Australia would then become the new owners of all land. This, as the federation created that the Colonies became constitutional Parliaments and the Commonwealth of Australia became constitutional Parliaments. Government and the Courts.
As a matter of fact the Framers of the Constitution made clear that if a State wanted to refer its legislative powers to the Commonwealth of Australia within Section 51(xxxti•ii) then a State referendum was required (Section 123 of the Constitution) for the State electors to approve this. To my knowledge this has not occurred with any reference of legislative powers.
Further, it was also made clear that where some states had referred its legislative powers to the commonwealth of Australia then the Commonwealth could not use consolidated revenue for such referred powers but the States would be liable for the cost. Be it by additional surcharge or levy upon the specific States, etc.
The Framers of the Constitution also made clear that from the time of federation no state could amend its constitution without first having a State referendum, as any change to a State Constitution would affect its legislative "limits", as would reference of legislative powers also cause to do.
The (purported) Australia Act (Cth) despite that the Commonwealth Parliament had no legislative powers to legislate as to the Constitution somehow the High Court of Australia purported it nevertheless could do so. It means that instead of having the Constitution being by the People for the People, now the Constitution is owned by the Commonwealth of Australia. It means that instead of having a constitution above the Parliament, the courts and the Government now, the parliament no longer is a constitutional Parliament but the constitution is subject to the demands of the Parliament. In that regard Section 128 of the Constitution would have no meaning. After all, the Federal Parliament could simply replace the entire Constitution with another version of the Australian Act without Section 123, 128, etc, that is if we were to hold that the Australia Act 1986 was valid.
Further. all and ever judgment handed down by the High Court of Australia from 1986 (when the Australia act 1986 was enacted) till the 1996 Sue v Hill judgment when the Australia Act 1986 was deemed valid, would have been in the name of the British Crown and as such all those judgment would be NULL AND VOID (ULTRA VIRES). More over, the High Court of Australia sittings since 1986 would have been all without legal jurisdiction as it was under the British Crown!
There is another problem that cannot be ignored. The Sue v Hill as I understand it was a disputed election where the High Court of Australia is sitting- within its powers of "persona designate" for and on behalf of politicians as a COURT OF DISPUTED RETURNS, and as such cannot operate as a COURT OF LAW, this as to do so was to provide politicians with "judicial powers". After all, if the parliament were to abolish the Court of disputed Returns and then take the High Court of Australia decisions as a COURT OF DISPUTED RETURNS having been "judicial decisions", then it is a breach of the separation of powers.
Hence. the Sue v Hill decision being about a disputed seat, which was within the ambit of the parliament, was not and could not have been a JUDICIAL DETERMINATION, and hence any purported validity of the Australia Cct 1986 (UK and/or Cth) was without legal force.
There is another problem, that if the Australia Act 1986 were to be held unconstitutional, as it is, then all decisions of the High Court of Australia since the 1996 decision also would be ULTRA VIRES. this as the High Court of Australia would have been sitting as a Court under the Queen of Australia, this, where no such country as the Commonwealth of Australia exist. The Commonwealth of Australia is a POLITICAL UNION as like the European Union.
While the High Court of Australia may fabricate that the Commonwealth of Australia is INDEPENDENT, the question then is what INDEPENDENT? It is not a country, republic, kingdom, dominion, empire! Some INDEPENDENT "POLITICAL UNION"?
There is another issue, as if the Commonwealth of Australia is purportedly INDEPENDENT. then it can no longer be part of the British Crown! The preamble in the Australia Act 1986 however purports that the Commonwealth of Australia still is under the British Crown.
The British Government has (albeit I view unconstitutional) withdrawn any involvement as has the Queen and this is indicating that the Queen has so to say reneged on her coronation oath, while the British parliament seeks to avoid its responsibilities.
The Framers of the Constitution made clear that the Federal parliament was limited to legislate within the provisions for "order, peace and good government", and while the High Court of Australia in the past (such as in 2000) held it never did check if legislation was within those limits, still any legislation, such as the Australia Act 1986 remains therefore ULTRA VIRES.
As the framers of the Constitution made clear the constitution did not allow the Commonwealth of Australia to become a republic, dominion, kingdom or empire.
The Framers of the Constitution also made clear that no standing army would be permitted to go against the people of Australia as the "defence powers" would not be for matters within, unless the Governor of a State requested assistance because of domestic violence (civil riots).
And, they also made clear that "citizenship" was a State legislative power they specifically refused to hand over to the Commonwealth. (See Hansard 2-3-1898 of the Constitution Convention)
In my previous successful Court cases I had filed in 2002 a Section 78B judiciary Act (Cth) a NOTICE OF CONSTITUTIONAL MATTERS and in this I challenged the validity of the Australian Citizenship Act 1948 as to declare/define "citizenship". None of the Attorney-Generals pursued to intervene in the case and the Federal government lawyers did neither oppose any of the matters I raised in this NOTICE OF CONSTITUTIONAL MATTERS, and as the Framers of the constitution made clear that once there is ULTRA VIRES raised then the legislation is ULTRA VIRES unless and until the High Court of Australia were to determine otherwise. They did however also make clear that the High court of Australia could not enlarge the Constitution. The Court could determine
that a legislative power all along was included but it could not amend the constitution by enlarging the meaning of the Constitutional provision.
With other words, unless the detention and other powers pursued against Jack Thomas all along was within the meaning of the Constitution it is and remains unconstitutional. as the High Court of Australia has no powers to enlarge the Constitution.
As a "CONSTITUTIONALIST" I for one having extensively researched the Constitution am well aware that the Framers of the Constitution made clear that only local police (local law enforcement officers) and State Court could enforce commonwealth law against its citizens. And, also that the Commonwealth could not interfere with the State judicial processes. Hence. the commonwealth of Australia has no legislative powers to dictate to a State Court if a person shall or shall not be permitted bail as that is beyond its constitutional powers.
Indeed, despite the High court of Australia having decided in favour of ADMINISTRATIVE DETENTION the truth is that this is and remains unconstitutional as the Court purported to give the Commonwealth of Australia powers to enforce its own laws, specifically denied by the Framers of the Constitution. Again, the High Court of Australia having, so to say, as I view it acted TREASONOUS against the constitution.
The RULE OF LAW is what is constitutionally permissible.
The Framers of the Constitution made clear that retrospective legislation was not possible because it would make a man who had acted lawfully to be a criminal.
The Federal Government seems wanting to introduce further so called ANTI TERRORIST laws to allow the Australian Federal Police to incarcerate any person for up to 6 months without needing a judicial decision. Meaning that any opponent member of parliament, just before an election. could be incarcerated without judicial decision and hence a Government could have an unchallenged election! No good to argue this will not occur as to often we had a Government changing its colours. "no GST" is a clear example.
We also have that the Australian Federal Police is in fact an unconstitutional organisation. It was created from the Federal Police after the 1976 Hilton bombing, upon recommendation of British experts who seemingly had no clue that the Australian federation did not permit this kind of police system.
'What we ended up is people being terrorised by the Australian Federal Police, Department of Immigration, etc.
The Vivian Alvarez Solon case is a clear example how it can go wrong if instead of using the RULE OF LAW as constitutionally permissible, we have the politicians RULE OF LAW, where an} person. regardless being lawfully in the Commonwealth of Australia, and despite of suffering serious injuries, can be denied appropriate medical treatment, access to a law and is detained and then deported.
Who do I blame in principle for this? The High Court of Australia! The judges are to often in my view incompetent to appropriately adjudicate within the judicial powers provided to them. They are going out of their limited judicial powers as to abuse and misuse their powers to enlarge/amend the Constitution. The recent The Australian publication about certain judges comments may underline this.
The Framers of the Constitution themselves made also clear that you could not trust judges and neither of the to be created High Court of Australia because of their bias to local matters, citing the Privy council as having overruled past decisions of Colonial Supreme Courts which had handed down decisions that were tainted with bias because the judges knowing the local circumstances had swayed from dealing with matters on basis of law, and the Privy council corrected this.
It is not relevant if a judge at the High Court of Australia was born and grew up with the notation that "Australian citizenship" is a nationality, as it never was.
Again.I challenged this formally and none of the Attorney-Generals or any federal government lawyer even CHALLENGED this, hence the Australian Act 1948 is and remains ULTRA VIRES for so far it purports to define/declare "citizenship" and for so far it purports to have naturalisation of "Australian nationality" as it is and remains to be Subject of the British Crown.
Here we had the next issue. If "Australian citizenship" as provided for in the Australian Citizenship. Act 1948 is and remains ULTRA VIRES, then as I pursued in the cases then no lawyer/judge/politician is LAWFULLY APPOINTED AS EACH REQUIRE THE NON EXISTING
"Australian citizenship" and hence only the Privy Council could hear the NOTICE OF CONSTITUTIONAL MATTERS, which since basically, was abolished. After all, no judge could hear the case in the commonwealth of Australia as there would be bias in the case where the validity of their own appointment was challenged and ULTRA VIRES since the formal objection was made.
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:
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 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 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.
Sixteenth American Jurisprudence
Second Edition, 1998 version. Section 203 (formerly Section 256)
On 30 September 2003 1 appeared as a witness before His Honour Robertson J of the County Court of Victoria and His Honour having become aware that earlier that day I had published;
IN SPECTOR-RIKATI @ on CITIZENSHIP
A book on CD about Australians unduly harmed.
(ISBN 0-9580569-6-X prior to I-1-2007) ISBN 978-0-9580569-6-0
then commented in regard of this, "The pen is mightier then the sword.".
His Honour did seek my views as to the kind of sentence he ought to impose on the person just convicted, and subsequent to my statement made known that this was precisely what he deemed to be most appropriate in the circumstances.
Earlier that day I had already delivered 4 copies of this book to the Melbourne Registry of the High Court of Australia, as well as several days later delivered another 4 copies. "The pen is mightier then the sword." Indeed is very much applicable to this as my books are successfully used in litigation's.
There is of course another issue at hand. That is that if lawyers/judges/politicians/police officers are not lawfully appointed because they all lack to have "Australian citizenship" then any person charged was in fact not charged. Any person convicted was in fact not convicted. Any Bills passed by a Parliament in fact was never lawfully passed, and on and on it goes.
What this means is that where the High Court of Australia, the various Government, etc. all ignored for many years my warnings about this, they now mat, find that people allegedly convicted.
When I challenged the application of the Cross Vesting Act the High Court of Australia disregarded this and merely assumed it to be valid, despite that I pointed out I was warned that judges planed to imprison me no matter what for exposing the truth. As a person who had great respect for the HIGH Court of Australia I have learned that it is at times a I: AN, KANGAROO COURTand a STAR CHAMBER COURT that itself refuses to adhere to applicable judicial processes and hand down a judgment without having invoked jurisdiction. As such. I view there is a cancerous growth within the High Court of Australia that needs to be addressed. Failing the High Court of Australia to rectify its own created problems then, albeit within the context of the constitution, it must be reformed to avoid this scandalous of abuse and misuse of judicial powers to occur again. Never again should a judge of the High Court of Australia refuse to hand down a judgment on the basis he doesn't know the constitutional issues, as after all this is the primary function of the High Court of Australia.
In my view we need to create in every State/Territory and in the federation an OFFICE OF THE GUARDIAN, a constitutional council, that advises the Government. the People, the Parliament and the Courts as to constitutional powers and limitations. Such OFFICE OF THE GAURDIAN should be a non-political office under the Governor or Governor-General where politicians cannot interfere with it.
The OFFICE OF THE GAURDIAN would be where any person could obtain information about certain constitutional matters. FREE OF CHARGE, and such information must be the same no matter who request the information.
It would mean that if a judge is faced with a constitutional issue, he can request for this OFFICE OF THE GUARDIAN to provide him/her and all parties involved in the case with what this OFFICE OF THE GUARDIAN has as information about the constitutional issue at hand.
As such., rather then a judge hating to rely upon his/her researchers able to discover matters, the reseachers have a basis to start from by using the material provided by the OFFICE OF THE GUARDIAN and then can futher their own research if they desire to do so. Likewise so with the parties involved.
As such, the OFFICE OF THE GUARDIAN will not have and neither will be able to interfere with judicial powers of the courts. However, the OFFICE OF THE GUARDIAN would be entitled to challenge in its own right a legislation it deemed to be unconstitutional before the Courts. Meaning, that is a person complain's about some legislation being unconstitutional, and the OFFICE OF THE GUARDIAN views that indeed legislation might be unconstitutional, then the OFFICE OF THE GUARDIAN could place the matter before the relevant Court for judicial adjudication. It means that any poor person deeming to be affected by some legislation he/she deemed unconstitutional then can pursue the matter himself/herself with or without the OFFICE OF THE GUARDIAN also doing this. Currently many people are fearing to pursue JUSTICE, because of the risk of huge legal cost.
It is absurd that a person lacking sufficient funding is by this prevented to challenge an unconstitutional law, through the courts.
There is another issue at hand. Once a person formally object to a legislative provision being ULTRA VIRES, then from that moment the legislative provisions is and remain ULTRA VIRES from the time the legislation was enacted, unless and until the High Court of Australia declares the legislation to be INTRA VIRES. Meaning, that even if the objector doesn't proceed with his objection further, nevertheless the legislative provisions no longer are legally enforceable.
It is not at all that legislation only becomes ULTRA VIRES if the High Court of Australia declares this to be so, rather it is when ULTRA VIRES is claimed by a person. This, the Framers of the Constitution made clear. Hence, it is absurd for a person to object to the constitutional validity of legislation and this legislation then is immediately ULTRA VIRES and there is no one to pursue the matter further, leaving it forever ULTRA VIRES.
This is a constitutional principle embedded in the Constitution not even judges of the High Court of Australia were aware off.
It means that it is not for the High Court of Australia to declare if the judges themselves are validly appointed as this is a legal challenge I made in 2002 and again none of the Attorney-Generals and/or the Federal Government lawyers opposed this challenge. ,
On that basis the Jack Thomas decision also is ULTRA VIRES.
Again, I was wrongly imprisoned and afterwards when it became clear I had been the Parliament passed retrospective legislation as to purport to make it lawful. Well this is not the kind of DUE PROCESS OF LAW the Framers of the Constitution referred to and knowing how ignorant judges can be and so politicians I calculated that if they continue to do so it would in the long run work against them.
That is why, when I challenged the constitutional validity of all writs of the purported 2001 federal election I expected that more then likely the case would be railroaded and then it would take many years before finally I would get a judgement. It did, as it took about 5-years and I proved that all writs were unconstitutional and so ULTRA VIRES. MEANIN-G, THERE WAS NO FEDERAL GOVERNMENT. All legislation purportedly enacted after having been passed by the Parliament never were validly passed. And on and on it goes.
Judges and politicians are too well known about ignoring the RULE OF LAW as is constitutionally permissible, and rather to use their own kind of RULE OF LAW regardless of how unconstitutional it might be, and this is what I contemplated would be the future conduct and would be the downfall of many.
I had a valid Court order and yet this was ignored and i ended up in prison because of judges wanting to disregard the valid Court orders and substitute it with their own unconstitutional orders. Then the nonsense of the Cross Vesting Act was pursued by them, and the High Court of Australia "assumed" its validity!
Well, EITHER WE HAVE A CONSTITUTION OR WE DON'T! In my view the only Constitution that is applicable is the Commonwealth of Australia Constitution ~~ Act 1900 (UK) as amended by valid successful referendums and only laws that are within the powers of the Constitution are legally enforceable. The so called TERRORISM legislation's (some 40 of them as the federal Attorney-General made known to the media) are all ULTRA VIRES and remain to be so as I opposed them and my objections were not overruled.
The High Court of Australia cannot ignore constitutional objections on foot and then later hand down a decision in another case, as some window shopping exercise, where lawyers in that case may not have any competence in constitutional matters. It might be wishful thinking of the High Court of Australia to try to railroad in that manner a constitutional objection that be insurmountable to overcome but in the end it will be to no avail as it has failed to overrule the original objection.
The worst that can come from it all is that the criminals who indeed have committed crimes will walk free because of the failure to apply the RULE OF LAW as is constitutionally permissible.
Judges of the High Court of Australia have placed themselves upon some pedestal, so to say, that they consider themselves to be the social engineers of society and to portray the constitution to be their tool. This, is the very danger the Framers of the Constitution warned against.
While a judge can be removed by joint sitting of Parliament for misbehaviour, this unlikely will occur regardless how much any judge abuses and misuses power if this is to the benefit of the Government and/or Members of Parliament. In my view, the federal government should stay out of appointments to the High Court of Australia altogether to avoid political appointments.
The same in fact with appointment of a Governor-General, as the Framers of the constitution made
clear that the validity of legislation to be enacted is to be granted Royal Assent, as without this no legislation is valid. As they made clear that Royal Assent could only be obtained by a Governor-General being appointed by the Queen upon recommendation of the Home Office at 10 Downing Street. As they made clear Governor-General if appointed on recommendation of a Australian Federal Government then the Governor-General would more then likely be a political lap-dog. Also, that a Governor-General would then not represent the Queen as it must be a person from the UK! Deakin, as a Framers of the Constitution, so to say, scoffed the function of the governor-General being a plumb job below the capacity of intelligent person, etc. Well, he was the first Australian born to be purportedly appointed Governor-General. And, from then no legislation was validly given Royal Assent, as it is embedded in the Constitution (again) that it must be a person recommended by the Home Office and appointed by the Queen upon this. Then what valid laws are there?
As a trivia, If the Crown had possession of all land, as the land was taken in the name of the Monarch, and the Commonwealth of Australia became INDEPENDENT does this mean that all land ownership if not going to the Commonwealth of Australia then reverts back to Aboriginal ownership? And then what about the ownership of land in the Crown of the States? Considering that the States are in fact only partly in the Commonwealth of Australia in regard only for so far having allowed transfer of legislative powers, then Crown land would possibly refer back to Aboriginals where the Commonwealth of Australia no longer is under the British Crown, and land owned by the States may be retained by the States, that is if they retain the British Crown. Just that the problem will be which Crown does the States rely upon if the British crown refuses to deal with matters and the States by the Australian act 1986 have conceded to abort or implied to have conceded to abort the British Crown. Perhaps we now need a First Fleet under the authority of the queen of Australia ( a non existing country) to claim all land for this Queen?
NOTE;
I have avoided to quote numerous Hansard recorded statements but they can to some extent located on my blog.
Mr. G. H. Schorel-Hlavka
MAY JUSTICE ALWAYS PREVAIL® 107 Graham Road
Viewbank, 3084, Victoria, Australia
Ph/Fax 03-94577209 International 61394577209
"CONSTITUTIONALIST" and Author of books in the INSPECTOR-RIKATI® series on certain constitutional and other legal issues.
See also website; http://schorel-hlavka.com and
Blog; http://au.360.yahoo.com/profile-ijpxwMQ4dbXmOBMADq11v8AYHknTV_QH