100906-a warning to every politician- etc

8/8/2019 100906-A Warning to Every Politician- Etc

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6-9-2010 Page 1 A warning to every politicianPLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website

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

To all Members of Parliament 6-9-2010.

Ref: various constitutional issues5A warning to every politician, etc

AND TO WHOM IT MAY CONCERN.

Sir/Madam,

This is a warning to all federal politicians as to the severe legal consequences each10

and every Member of Parliament may face if acting in defiance of the RULE OF LAW (theconstitution). Indeed, Member of Parliament may very well, despite being elected, find they may

be now ineligible to take up a seat in the Parliament where they are guilty of treason or otherwise

are attained. What appears to me is that quite frankly Mr Andrew Wilkie appears to me to begoing on more like some terrorist then as an elected member of House of Representatives15

designate. I will set out some matters and this also applies to all INDEPENDENTS, theAustralian Greens and not to forget the major political parties and in particular both Julia Gillard

and Tony Abbott. Keep in mind that currently there is not a single Member of the House of

Representative existing because all and any (elected) are Members of the House of

Representative designate and so none can claim having the majority unless and until they20

actually have taken up their seats. As a matter of fact Julia Gillard could not continue hercommission past 20 November 2010 unless she has taken up the seat she is elected for because

she would otherwise be constitutionally be in conflict with s.64 to exceed the 3-month period!.

As set out below, electors have two position having both State and Federal franchise (citizenship)25and that is to vote as a State to elect members for the Senate and to vote for the House of

Representatives where there are no State boundaries as it is a federal electorate. Mr Andrew

Wilkie as such is not elected upon State rights but elected in a federal electorate. Hence, heshould not carry on as if he is representing the State of Tasmania but should act that he is a

member of the House of Representative designate. Therefor not local policies but federal policies30

should b e his concern. If he wanted to pursue a strict local State policy then he should have stood

for the Senate. Also, he seems not to understand the how the constitution meaning and

application as he is not a Member of Parliament and neither a Member of the House ofRepresentative as such unless he is chosen by the Governor-General to take a seat he was elected

for. And, before he does so anything could happen to disqualify him from taking up the seat. Say,35

rightly or wrongly he could be declared a bankrupt. He could be on a pension of the pleasure ofthe governor-General or whatever. More over, even if he were to take up the seat in the House of

Representatives it means that currently he still has no such position because unless and until heactually takes up the seat he is not a Member of Parliament.

There is more: The Governor-General and I repeat the governor-General alone decided who shall40

be commissioned to form a government and the Governor-General is not bothered about if this

person commissioner to form a government has the majority of the House of Representatives, as

on 26 December 21900 E. Barton was commissioned to form a government and there were nomembers of parliament as no elections had been held. The Premier of NSW Lyne had returned

his commission after failing for 14 days to be able to get enough people willing to form a45

government with him because he had opposed federation. Therefore, anyone who has this notion

that they somehow can dictate the Governor-General who to commission to form a governmentin my view doesnt belong in the Parliament. You cannot have any Member of Parliament or


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Member of Parliament designate to disregard the RULE OF LAW. Fancy Members of

parliament to legislate and expecting citizens to comply with laws enacted when the politicians

themselves show they do not give a hood about the RULE OF LAW.

This so called hordes-trading by the INDEPENDENTS in my view is a betrayal to the electorsas they were elected to represent the electors as FEDERAL MEMBERS OF PARLIAMENT5

The point is this that what we now see is that Julia Gillard and Tony Abbott seeking to woe

INDEPENDENTS to support them to form a government when in fact their entire conduct in that

regard is unconstitutional and in my view makes them and any other person involved unsuitable

to be Members of Parliament. There is a separation of powers and the Parliament and the FederalExecutives are separate bodies. While advisors to the Governor-General (Ministers of State) are10

required to be Members of Parliament if they are in the position for longer then 3 months it

nevertheless is a ill conceived perception that the Governor-General is obligated to accept the

advise of the Prime Minister or anyone else for that matter as to who the Governor-General

commission to form a government. And, the Governor-General is not at all bound to accept theleader of any political party regardless that this political party may have the majority of Members15

in the House of Representatives. Being elected to the Parliament has absolutely nothing to do

with the prerogative powers of the Governor-General to commission a person to form a

government and the Governor-General therefore can appoint if needed my person even so I am

not elected to the Parliament, provided that either I only am commissioned up to 3-months unlessI become a Member of Parliament before the 3 months have passed. Say for example the20

Governor-General were to appoint me to form a government, then I wouldnt need any

legislation to be able to do so because governing is by the laws that exist. Obviously if a

government desires certain legislation to be passed then it would be helpful to have the majorityof the parliament supporting it but if it didnt happen it doesnt stop the federal executives from

operating. Now as to the budget, then obviously there is a need to have this passed because if25

Members of the Parliament were not to do so then their jobs are on the line.

If I had my way not a single Member of Parliament would get the so called payment per primary

vote as it is unconstitutional and as such, the legislation is not enforceable and then see howquickly Members of Parliament will ensure legislation to be passed as not getting any payment

per primary vote means they would have to finance elections and then they would rather be more30willing to cooperate with the government of the day. Likewise the compulsory voting is

unconstitutional as I defeated the Australian Electoral Commission on 19 July 2006 in court on

the charges of FAILING TO VOTE proving that the Commonwealth was specifically denied bythe Framers of the Constitution to make registration and/or voting compulsory!

Those who are Members of Parliament and/or Members of Parliament designate must understand35

that they are so because of the provisions of the constitution and therefore they are bound to

observe the constitutional meanings and application. Those who are not willing to do so, such as

Julia Gillard, Tony Abbott, Andrew Wilkie and others should get out of the Parliament and/ornot become Members of Parliament because in my view they are not worthy to hold a seat in the

Parliament where they disregard the prerogative powers of the Governor-General! It is a total40

absurdity for INDEPENDENT Members of Parliament designate to dictate as to what a futuregovernment may or may not do or how it has to conduct itself because that is not the function of

individual Members of Parliament as the parliament as a whole body determines what powers thefederal executives by way of legislation is provided with and the government of the day then uses

those powers as it deems fit and proper. Fancy Member of the House of Representatives being45

defeated in a vote in the Parliament and then to go about to terrorise the government nevertheless

to do what he/she dictates or withdraw support for the government of the day..

Come on, get a grip on yourself and learn that the constitution belongs to the people and

not to individual Members of Parliament designate.50We have all those Senate commissions going on and yet, as the quotation below shows a

Minister is accountable (responsible) to the House of Representatives only. This perversion ofpowers to the Senate is an unconstitutional conduct that must be stopped.


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EITHER WE HAVE A CONSTITUTION OR WE DONT (We either have a constitution or

we dont!).

In my view it is well overdue that candidates standing for an election first learn what the

constitution really stands for because now so to say we may get brain-dead people elected who5havent got a clue what is constitutionally permissible and they the will be voting on legislation

that might be totally unconstitutional. After all if they are already engaged in unconstitutional

conduct how then can we trust their competence further? This rot must stop right now and any

Member of Parliament and/or Member of Parliament designate who nevertheless continues withthe rot in my view should be disqualified from holding a seat in the Parliament! I urge therefore10all to consider the various quotations below also!.

Hansard 15-4-1897 Constitution Convention DebatesQUOTE

Mr. O'CONNOR: There are only two limitations to the Subjects which may come under the head of15"manner of choosing." One is that the member is to be chosen by the people of the States as oneelectorate. That cannot be altered. The other is that the qualification shall be as stated for the House of

Representatives, and one man shall have one vote. Those two things are expressly provided for, andtherefore the "manner" cannot touch them. They really put the very basis upon which the Senate is elected.

END QUOTE20.

Before we deal with the issue of franchise we ought to also attend to the issue that citizenshipcan only be obtained as a political rights and has got absolutely nothing to do with nationality

and any person who desires to be in the Parliament and cannot even grasp the concept of what is

constitutionally applicable should never take up a seat in the Parliament!25.

As a CONSTITUTIONALIST I consider matters as to the true intention of the Framers of the

Constitution..

http://www.austlii.edu.au/cgi-30bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=%22thi+act+and+all+law+made+by+the+parliament%22#fn50

QUOTEConstitutional interpretation

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

intention of its makers[51].35

END QUOTE.


Mr. HIGGINS.-Suppose the sentry is asleep, or is in the swim with the other power?40

Mr. GORDON.-There will be more than one sentry. In the case of a federal law, every member

of a state Parliament will be a sentry, and, every constituent of a state Parliament will be asentry. As regards a law passed by a state, every man in the Federal Parliament will be asentry, and the whole constituency behind the Federal Parliament will be a sentry.

END QUOTE45.


Mr. HIGGINS.-The particular danger is this: That we do not want to give tothe Commonwealth powers which ought to be left to the states. The point is that50we are not going to make the Commonwealth a kind of social and religious powerover us.

END QUOTE.

HANSARD 1-3-1898 Constitution Convention Debates55

QUOTE Mr. GORDON.-


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The court may say-"It is a good law, but as it technically infringes onthe Constitution we will have to wipe it out."

END QUOTE.


QUOTE Mr. BARTON.-The position with regard to this Constitution is that it has no legislative

power, except that which is actually given to it in express terms or which isnecessary or incidental to a power given.

END QUOTE10.

Hansard 8-2-1898 Constitution Convention Debates (Official Record of the Debates of the

National Australasian Convention)

QUOTEMr. BARTON.-Yes, since then, as is pointed out in a little handbook which my honorable friend lent me.15

But the question for us to consider is whether a court like the Federal High Court or the Privy Council would

ever come to such a conclusion. One would think it highly improbable. The real question that may arise underthis Constitution is whether the Commonwealth can make a law establishing or prohibiting the free exercise

of any religion. I take it that in the absence of a provision in the Constitution conferring that powerupon the Commonwealth it will be impossible for the Commonwealth to do so. For this reason I think20we need scarcely trouble ourselves to impose any restrictions. 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.

HANSARD 2-3-1898 Constitution Convention Debates25QUOTE

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.30HANSARD 17-3-1898 Constitution Convention Debates

QUOTEMr. BARTON.-this Constitution is to be worked under a system of responsible government

END QUOTE.35HANSARD 17-3-1898 Constitution Convention Debates

QUOTEMr. 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 way that guarantee.

END QUOTE40.

HANSARD 17-3-1898 Constitution Convention Debates

QUOTEMr. 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 the45

provisions of this Constitution, the principles which it embodies, and the details of enactment by whichthose principles are enforced, will all have been the work of Australians .

END QUOTE,


QUOTEMr. BARTON.- Having provided in that way for a free Constitution, we have 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 QUOTE55.

HANSARD 17-3-1898 Constitution Convention DebatesQUOTE

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

END QUOTE60


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.

HANSARD 17-3-1898 Constitution Convention Debates

QUOTE Mr. DEAKIN.-What a charter of liberty is embraced within this Bill-of political liberty and religious liberty-the

liberty and the means to achieve all to which men in these days can reasonably aspire . A charter of5liberty 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.

HANSARD 17-3-1898 Constitution Convention Debates10QUOTE

Mr. SYMON (South Australia).- We who are assembled in this Convention are about to commit to thepeople of Australia a new charter of union and liberty; we are about to commit this new Magna Charta

for their acceptance and confirmation, and I can conceive of nothing of greater magnitude in the wholehistory of the peoples of the world than this question upon which we are about to invite the peoples of15Australia to vote. The Great Charter was wrung by the barons of England from a reluctant king. This newcharter is to be given by the people of Australia to themselves.

END QUOTE.


QUOTE

Mr. BARTON.- We can have every faith in the constitution of that tribunal. It is appointed as the arbiter ofthe Constitution. . It is appointed not to be above the Constitution, for no citizen is above it, but underit; 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 the25Constitution, they are bound to serve. What I mean is this: That if you, after making a Constitution of

this kind, enable any Government or any Parliament to twist or infringe its provisions , then by slow

degrees you may have that Constitution-if not altered in terms-so whittled away in operation that theguarantees of freedom which it gives your people will not be maintained; and so, in the highest sense, thecourt you are creating here, which is to be the final interpreter of that Constitution, will be such a tribunal as30will preserve the popular liberty in all these regards, and will prevent, under any pretext ofconstitutional action, the Commonwealth from dominating the states, or the states from usurping the sphere

of the Commonwealth.

END QUOTE.35Each citizen as an elector has two citizenships being a State and Federal citizenship but contrary

to what is claimed by the 1988 royal commission it got nothing to do with nationality and neither

has the Commonwealth any legislative in regard of it because Federal citizenship is obtainedAUTOMATICALLY when obtaining State citizenship..40QUOTE 7-1-2010 CORRESPONDENCE

Australian Government

Department of the Prime Minister and Cabinet

ONE NATIONAL CIRCUIT

BARTON45

Reference: c09/54418

Mr Gerrit Schorel-Hlavka

107 Graham Road50VIEWBANK VICTORIA 3084

Dear Mr Schorel-Hlavka

Thank you for your email of 24 October 2009 to the Prime Minister regarding the55Commonwealths power to legislate over citizenship. I have been asked to reply on the

Prime Ministers behalf. I apologise for the delay in doing so.


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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

Constitutional Commission, 1988:5

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

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

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

Constitution] or is one of the implied national powers. Its exercise by the Federal

Parliament, by enactment of the Australian Citizenship Act 1948 has certainly not10been called into question in any case before the High Court of Australia.

Yours sincerely

Brendan MacDowellA/g Assistant Secretary15

Legal Policy Branch

7 January 2010

QUOTE 7-1-2010 CORRESPONDENCE.

Hansard 2-3-1898 Constitution Convention Debates20QUOTE Mr. BARTON.

If we are going to give the Federal Parliament power to legislate as it pleases with regard toCommonwealth citizenship, not having defined it, we may be enabling the 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 Federal25Parliament."

END QUOTE.

Hansard 2 March 1898 Constitutional Convention Debates

QUOTE Mr. SYMON.-30

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, thenI 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 entitledto become a citizen of the 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 to35do 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.

END QUOTE.

The following shows the usage of Australian citizen, citizen of the Commonwealth, dual40

citizenship, etc. making clear that the constitutional term Australian citizenship has no such

meaning of nationality and neither can be converted to this as to allow, so to say, theCommonwealth of Australia to unconstitutionally steal the legislative powers of the States to

define/declare citizenship.

13-02-1890 Re; Australian citizen4513-03-1891 Re; Australian citizens25-03-1897 Re; Australian citizens

Re; dual citizenship

26-03-1897 Re; citizen of the Commonwealth

29-03-1897 Re; Dual citizenship5030-03-1897 Re; federal citizen

Re; dual citizenship31-03-1891 Re; Australian citizen

Re; citizen of the CommonwealthRe; dual citizenship5512-04-1897 Re; citizen of the Commonwealth


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14-04-1897 Re; citizen of the Commonwealth

15-04-1897 Re; Dual citizenship15-09-1897 Re; citizen of the Commonwealth

Re; Commonwealth citizenshipRe; dual citizenship5

17-09-1897 Re; citizen of the Commonwealth24-01-1898 Re; Australian citizen

28-01-1898 Re; Australian citizenshipRe; Commonwealth citizens

04-02-1898 Re; citizen of the Commonwealth10 08-02-1898 Re; Australian citizenshipRe; Commonwealth citizenshipRe; citizen of the Commonwealth

Re; federal citizenshipRe; dual citizenship15

15-02-1898 Re; citizen of the Commonwealth23-02-1898 Re; citizen of the Commonwealth

24-03-1898 Re; citizen of the Commonwealth01-03-1898 Re; Australian citizens

Re; citizen of the Commonwealth2002-03-1898 Re; citizen of the Commonwealth

Re; federal citizenship

Re; Commonwealth citizenshipRe; dual citizenship

03-03-1898 Re; citizen of the Commonwealth25Re; federal citizenshipRe; Commonwealth citizenship

04-03-1898 Re; citizen of the Commonwealth10-03-1898 Re; Australian citizenship

.30Talbot v. Janson, 3 U.S. 133 (1795)

QUOTEYet, it is to be remembered, and that whether in its real origin, or in its artificial state, allegiance, as wellas fealty, rests upon lands, and it is due to persons. Not so, with respect to Citizenship, which has arisen

from the dissolution of the feudal system and is a substitute for allegiance, corresponding with the new35order of things. Allegiance and citizenship, differ, indeed, in almost every characteristic. Citizenship isthe effect of compact; allegiance is the offspring of power and necessity. Citizenship is a political tie;allegiance is a territorial tenure. Citizenship is the charter of equality; allegiance is a badge of inferiority.

Citizenship is constitutional; allegiance is personal. Citizenship is freedom; allegiance is servitude.Citizenship is communicable; allegiance is repulsive. Citizenship may be relinquished; allegiance is40perpetual. With such essential differences, the doctrine of allegiance is inapplicable to a system ofcitizenship; which it can neither serve to controul, nor to elucidate. And yet, even among the nations, in

which the law of allegiance is the most firmly established, the law most pertinaciously enforced, there arestriking deviations that demonstrate the invincible power of truth, and the homage, which, under every

modification of government, must be paid to the inherent rights of man.45END QUOTE

And

QUOTEThese are tacit acknowledgments of the right of expatriation, vested in the individuals; for, though they areinstances of adopting, not of discharging, subjects; yet, if Great Britain would (ex gratia) protect a Russian50naturalized by service, in her fleet, it is obvious that she cannot do so without recognizing his right of

expatriation to be superior to the Empress's right of allegiance. But it is not only in a negative way, that thesedeviations in support of the general right appear. The doctrine is, that allegiance cannot be due to two

sovereigns; and taking an oath of allegiance to a new, is the strongest evidence of withdrawing

allegiance from a previous, sovereign.55END QUOTE

AndQUOTE

The power of naturalizing has been vested in several of the state governments, and it now exists in the

general government; but the power to restrain or regulate the right of emigration, is no where60 surrendered by the people; and it must be repeated, that, what has not been given, ought not to beassumed. It may be said, however, that such a power is necessary to the government, and that it is


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implied in the authority to regulate the business of naturalization. In considering these positions, itmust be admitted, that although an individual has a right to expatriate himself, he has not a right toseduce others from their country. Hence, those who forcibly, or seductively, take away a citizen,

commit an act, which [p*143] forms a fair object of municipal police; and a conspiracy or combination,

to leave a country, might, likewise be properly guarded against. Such laws would not be an infraction5of the natural right of individuals; for, the natural rights of man are personal; he has no right to will

for others, and he does so, in effect, whenever he moves the mind of another to his purpose, by fear, byfraud, or by persuasion.

END QUOTE

And10QUOTE

But naturalization and expatriation are matters of internal police; and must depend upon themunicipal law, though they may be illustrated and explained by the principles of general

jurisprudence. It is true, that the judicial power extends to a variety of objects; but the Supreme Courtis only a branch of that power; and depends on Congress for what portion it shall have, except in the15cases of ambassadors, &c. particularly designated in the constitution. The power of declaring whethera citizen shall be entitled in any form to expatriate himself, or, if entitled, to prescribe the form, is not

given to the Supreme Court; and, yet, that power will be exercised by the court, if they shall decideagainst the expatriation of Captain Talbot. Let it not, after all, be understood, that the natural, loco-

motive, right of a free citizen, is independent of every social obligation. In time of war, it would be20treason to migrate to any enemy's country and join his forces, under the pretext of expatriation. 1 Dall.

Rep. 53, and, even in time of peace, it would be, reprehensible (say the writers on the law of nature andnations) to desert a country labouring under great calamities. So, if a man acting under the obligations

of an oath of office, withdraws to elude his responsibility, he changes his habitation, but not hiscitizenship. It is not, however, private relations, but public relations; private responsibility, but public25responsibility; that can affect the right: for, where the reason of the law ceases, the law itself must, also,cease. There is not a private relation, for which a man is not as liable by local, as by natural,

allegiance;--after, as well as before, his expatriation: He must take care of his family, he must pay hisdebts, wherever he resides; and there is no security in restraining emigration, as to those objects, since,

with respect to them, withdrawing is as effectual, as expatriating. Nor is it enough to impair the right of30expatriation, that other nations are at war; it must be the country of the emigrant. No nation has a right to

interfere in the interior police of another: the rights and duties of citizenship, to be conferred, or released, arematter of interior police; and yet, if a foreign war could affect [p*145] the question, every time that a fresh

power entered into a war, a new restraint would be imposed upon the natural rights of the citizens of a neutral

country; which, considering the constant warfare that afflicts the world, would amount to a perpetual35 controul. But the true distinction appears to be this:--The citizens of the neutral country may still exercise theright of expatriation, but the belligerent power is entitled to say, "the act of joining our enemies, flagrante

bello, shall not be a valid act of expatriation." By this construction, the duty a nation owes to itself, the sacredrights of the citizen, the law of nations, and the faith of treaties, will harmonize, though moving in distinct

and separate courses. To pursue the subject one step further: A man cannot owe allegiance to two40sovereigns. 1Bl. Com. He cannot be citizen of two republics. If a man has a right to expatriate, and

another nation has a right and disposition to adopt him, it is a compact between the two parties,consummated by the oath of allegiance. A man's last will, as to his citizenship, may be likened to his

last will, as to his estate; it supersedes every former disposition; and when either takes effect, the party,in one case, is naturally dead, in the other, he is civilly dead;--but in both cases, as good Christians and45good republicans, it must be presumed that he rises to another, if not to a better, life and country. Anact of expatriation, likewise, is susceptible of various kinds of proof. The Virginia law has selected one,

when the state permits her citizens to depart; but it is not, perhaps, either the most authentic, or themost conclusive that the case admits. It may be done obscurely in a distant county court; and even

after the emigrant is released from Virginia, to what nation does he belong? He may have entered no50other country, nor incurred any obligation to any other sovereign. Not being a citizen of Virginia, he

cannot be deemed a citizen of the United States. Shall he be called a citizen of the world; a humanballoon, detached and buoyant in the political atmosphere, gazed at wherever he passes, and settled

wherever he touches? But, on the other hand, the act of swearing allegiance to another sovereign, isunequivocal and conclusive; extinguishing, at once, the claims of the deserted, and creating the right of55the adopted, country. Sir William Blackstone, therefore, considers it as the strongest, though an ineffectual,effort to emancipate a British subject from his natural allegiance; and the existing constitution of France

declares it expressly to be a criterion of expatriation. The same principle operates, when the naturalizationlaw of the United States provides, that the whole ceremony of initiation shall be performed in the American

courts; and if it is here considered as the proof of adoption, shall it not be considered, also, as the test of60

expatriation? IfAmerica [p*146] makes citizens in that way, shall we not allow to other nations, the privilegeof the same process? In short, to admit that Frenchmen may be made citizens by an oath of allegiance to

America, is, virtually, to admit, that Americans may be expatriated by an oath of allegiance to France. After


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this discussion of principles, forming a necessary basis for the facts in this case, it is insisted, 1st, That Talbot

was a naturalized citizen of the French Republic at the time of receiving a commission to command theprivateer, and of capturing the Magdalena. He left this country with the design to emigrate; and the act of

expatriation must be presumed to be regular, according to the laws of France, since it is certified by themunicipality of Point a Pitre, by the French Consul, and by the Governor of Guadaloupe. 2d, That Redick5was also, a naturalized citizen of the French Republic, when he purchased the vessel, and received acommission to employ her as a privateer.

END QUOTEAnd

QUOTE10Ballard was a citizen ofVirginia, and also of the United States.

END QUOTE.

Within the united States of America a person granted naturalization is also granted citizenship,

where as the Commonwealth of Australia Constitution Act 1900 (UK) does not provide for this.15

Section 51(xix) provides for naturalization. The Hansard records of the 2 March and 3 March

1898 Constitutional Convention Debates made clear that naturalization powers would be

transferred from the Colonies to the newly to be formed Commonwealth of Australia, as it wouldbe approved by the British Parliament but CITIZENSHIP legislative powers would be

retained by the States in the newly formed Commonwealth of Australia.20

Mr Quick proposed to give the Commonwealth of Australia constitutional powers todefine/declare CITIZENSHIP but this was defeated/refused by the Delegates!.

Hansard 2-3-1898 Constitution Convention Debates;

QUOTE Dr. QUICK.-25

I took occasion to indicate that in creating a federal citizenship, and in defining the qualifications ofthat federal citizenship, we were not in any way interfering with our position as subjects of the British

Empire. It would be beyond the scope of the Constitution to do that.

END QUOTE.30Therefore, even if the amendment of Mr Quick had succeeded it still was not intended to give

any legislative powers to the Commonwealth of Australia to interfere with the rights of anyperson as a British subject..

Hansard 2-3-1898 Constitution Convention Debates;35QUOTE

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.

Dr. QUICK.-If we are to have a citizenship of the Commonwealth higher, more comprehensive, and nobler

than that of the states, I would ask why is it not implanted in the Constitution? Mr. Barton was not present40when I made my remarks in proposing the clause. I then-anticipated the point he has raised as to the position

we occupy as subjects of the British Empire. I took occasion to indicate that in creating a federal

citizenship, and in defining the qualifications of that federal citizenship, we were not in any wayinterfering with our position as subjects of the British Empire. It would be beyond the scope of the

Constitution to do that. We might be citizens of a city, citizens of a colony, or citizens of a45Commonwealth, but we would still be, subjects of the Queen. I see therefore nothing unconstitutional,nothing contrary to our instincts as British subjects , in proposing to place power in this Constitution to

enable the Federal Parliament to deal with the question of federal citizenship. An objection has been raised invarious quarters-as by the honorable and learned members (Mr. O'Connor and Mr. Wise)-to the effect that we

ought to define federal citizenship in the Constitution itself. I have considered this matter very carefully, and50it has seemed to me that it would be most difficult and invidious, if not almost impossible, to frame a

satisfactory definition. There is in the Constitution of the United States of America a cast-iron definition

of citizenship, which has been found to be absolutely unworkable, because, among other things, it saysthat a citizen of the United States shall be a natural-born or naturalized citizen within the jurisdiction

of the United States, and it has been found that that excludes the children of citizens born outside the55

limits of this jurisdiction. That shows the danger of attempting definitions, and although I have placeda proposed clause defining federal citizenship upon the notice-paper, the subject, seems to mesurrounded with the greatest difficulty, and no doubt the honorable and learned members (Mr. Wise,


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Mr. O'Connor, and Mr. Symon) would be the first to attack any definition, and would be able toperforate it. In my opinion, it would be undesirable to implant a cast-iron definition of citizenship inthe Constitution, because it would be better to leave the question more elastic, more open to

consideration, and more yielding to the advancing changes and requirements of the times.

Mr. SYMON.-I agree with the honorable member, and I also think it is unlikely that the Commonwealth5will seek to derogate from it, but I will not place a power in the hands of the Commonwealth which willenable 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 allowdifferent people to come in who belong to nations not of the same blood as we are, they become10naturalized, 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.

Hansard 6-3-1891 Constitution Convention Debates15

QUOTE Mr. BARTON:The best way to do this is, I think, to recognise the fact that while the ordinary will and impulse of the

people is conserved, and its operation is conserved in the house of representatives, still the senate willbe a [start page 95] part, and a necessary part, of the expression of the people's will, because if it be not,

we shall forget that each citizen has a double citizenship to perform.20 END QUOTE

.

Hansard 6-3-1891 Constitution Convention DebatesQUOTE Mr. BARTON:

I hope, shown that unless there is something more than a mere power of rejection of money measures in25the federal senate there is at any time a possibility of a gormandising process being indulged in by therepresentatives of states in the greatest numerical superiority, I should like simply to pass on to express,

as we must all express, approval of the remainder of the first sub-section, that is to say, the formation of thehouse of representatives to be elected by districts formed on a population basis, with the sole exception that,

instead of possessing the sole power of originating or amending all bills for raising revenue or imposing30taxation, they, in the exercise of their power, or any serious portion of the exercise of it, should have the

assistance of the federal senate in the highest form, at any rate, in a higher form than my hon. friend, Mr.

Deakin, seems ready to give it.END QUOTE.35While we have all kinds o0f Senate inquiries and probes we should consider the following, and

also considering that Ministers (federal executives) should be drawn from the House ofRepresentatives only so they can be held accountable in the House of Representatives and to

avoid a conflict of interest of a Senator not acting in the best interest of his State when being a

federal executives as a Senator doesnt represent the Commonwealth of Australia but only a State40

for which he/she was elected:.

Hansard 6-3-1891 Constitution Convention Debates

QUOTE Mr. BARTON:In that respect I think that, irrespective of any question of a referendum, which I have heard suggested, we45shall find ourselves safer in relying on the old lines of constitutional responsibility at the hands of one

chamber, although it may not take unto itself the whole of the representative principle, than we shall be byattempting either to weld two chambers together for executive purposes-which I think would be a clumsyexpedient-or by venturing upon the dissociation of the executive from the representative body, the segregation

of ministers from parliament, resulting, as we know it has resulted elsewhere, in a body of ministers not50possessing indeed the whole executive power, and whose working is hampered to this extent: that, beingindividually amenable to a president, they are only in the very slightest degree animated by a common policy

so far as regards their common action. That is a state of things which I do not think would conduce to goodgovernment, and I therefore think, notwithstanding the embodiment of the federal principle in our secondchamber, notwithstanding the embodiment of a proportion of the representation of the country in it, we must55give up the idea that we are to dissociate our executive from our parliament. We shall be much safer in taking

our stand upon the solid constitutional ground of responsibility to one house alone. And there is a reason for itin this case to be found in this way: that the chamber to which it is proposed that ministers should be

responsible, is that chamber which is most charged with the conservation of the general rights of which the


11/19



executive is the exponent: that is to say, viewing the federal executive in its distinction from the various

executives of the provinces, the chamber which has most to do with the conservation of the powers andfunctions of that executive, and within the lines of which it will oftenest act in its relation to the individuals of

the state, will be the house of representatives; and if we work upon that line, I think we shall find it to be,perhaps, by no very great stretch of principle a decided gain in the working of our political system, and we5shall find it possible to conserve the principle of ministerial responsibility, and responsibility to that housealone.

END QUOTE.

Hansard 21-4-1897 Constitution Convention Debates10QUOTE

Clause 39.-Every House of Representatives shall continue for four years from the day appointed for the first

meeting of the House, and no longer; but may be sooner dissolved by the Governor-General. The Parliamentshall be called together not later than thirty days after the day appointed for the return of the write for a

general election.15

Sir GEORGE TURNER: The Commonwealth Bill, as it was in the year 1891, limited the duration of the

House of Representatives to three years , but the Constitutional Committee, for some reason, have decided toextend that term to four years. Now, I confess that I cannot approve of that alteration, unless some good

reason can be assigned for it. To begin with, we have the Senate retiring at three years and six years, and itwould be wise, so far as we are able, to keep the elections as near together as may be. If we have a20

Parliament retiring at the end of three years, unless there happens to be a dissolution at some particular time-which is not very likely to happen in connection with the Federal Parliament-we may allow an election for

senators and for representatives at certain times to take place together, and by that means save a considerableamount of expense. In addition to that, our people-the people of Australia-have got used to the period of three

years, the period for which their own members are elected; and they would hardly understand why we should25increase the term to four years for members of the House of Representatives. It would be thought, and fairly

said, that we were simply increasing the term in order that the members elected might have a longer periodbefore they had to go to the electors to have their actions discussed and approved or disapproved. So that, as

far as I can see, I would be glad if this "four" years could be altered to "three," in order to make it uniformwith our Parliament, and also with the term to which our people have become accustomed. Unless my hon.30friend can show some good reason why four years should be retained, I will feel inclined to move:

That "four" be struck out and "three" inserted.

Mr. BARTON: It was the decision of the Constitutional Committee.

Sir GEORGE TURNER: I will move the amendment I have indicated.

Question-That the word proposed to be struck out stand as part of the clause-put and negatived.35

Question-That the word "three" pro. posed to be inserted be so inserted-put and agreed to.

Clause, as amended, agreed to.

END QUOTE

.

Hansard 21-4-1897Constitution Convention Debates40QUOTE

Clause 43.-Until the Parliament otherwise provides, each member, whether of the States Assembly or of the

House of Representatives, shall receive an allowance for his services of four hundred pounds a year, to bereckoned from the day on which he takes his seat.

Mr. GORDON: I move:45

To strike out the word "four," in the third line, with the view of inserting " five."

The ground for the motion is that 400 a year is insufficient. While some local Parliaments are paying theirresident mem- [start page 1032] bers 300 a year, 400 is not enough for a member who has to leave-as most

members of the Federal Parliament would have to do-his colony and practically abandon his business or hisprofession. He would have to rely either upon his private means or his parliamentary salary, which, in this50

case, would be inadequate. I think, if 400 a year is fixed, the choice for members of the House ofRepresentatives will be limited to those who can afford to leave their business or profession, and to those who

are prepared to depend entirely on the small parliamentary salary. While members of both of these classes are


12/19



exceedingly desirable members of any Parliament, I think it would be a mistake to have the whole Parliament

consisting of them, which the payment of the salary proposed would probably lead to. I think 500 is littleenough; the 100 makes all the difference to the ordinary professional or business man.

Sir WILLIAM ZEAL: 400 is quite enough.

Sir EDWARD BRADDON: 100 too much.5

Mr. GORDON: I think it is a question on which the sense of the Committee should be taken, and, withoutfurther remark, I move the amendment.

Mr. HIGGINS: I think that, having regard to the fact that the Federal Parliament will have much less to dothan the ordinary local Parliaments after the first Parliament, 400 is sufficient. I am as strongly in favor of

payment of members, on the grounds alluded to by Mr . Gordon, as any man, but I say that the work done in10the States Parliaments takes far more time than will the work in the Federal Parliament, after its first meeting.

It is not likely, indeed, that the Federal Parliament will sit more than two months in t he year. I should like tostrike out "four," with a view to the insertion of "three." At the same time, as 400 has been fixed as a

compromise, I hope it will remain at that amount as the maximum.

Sir WILLIAM ZEAL: I consider that 400 is ample payment for the services of members. In addition to15that they possess the privilege of a free railway pass. The amount proposed to be paid-400-is twice as muchas the Dominion Parliament of Canada pays its members. I trust hon. members will not support the

amendment to increase the amount to 500.

Mr. TRENWITH: I hope that Mr. Gordon's amendment will be carried. We have no right to assume that

the Federal Parliament will not have a good deal to do. All our experience teaches us that, as civilisation20advances, the requirements of the people increase, and the tendency to ask Parliament to do things, that in the

past have been done by private enterprise, is increasing very rapidly. I feel confident that the FederalParliament, instead of having less to do as time goes on, will have a great deal more to do. I think that it will

be found to the advantage of the States to hand over work to the central Government. Of course, I canunderstand the objection that any sum is too much, by those who disapprove of the principle of payment of25members. But the principle of payment of members has been adopted throughout all the colonies. It wasadopted after a good deal of resistance on the part of those who disapprove of it, which showed the strong

growing public feeling in favor of paying members for the work they do, and of looking upon the position ofa member of Parliament not merely as a position of honor, but rather regarding them as State servants who are

paid for their work. We are paid not merely to reimburse us for expenses incurred, and to pay members of the30Federal Parliament 500 a year would be little enough, considering that during a portion of the year they willhave to be great distances from their established homes.

Sir WILLIAM ZEAL: It will cost them nothing to travel.

Mr. TRENWITH: That is a very popular delusion.

[start page 1033]35

Sir WILLIAM ZEAL: Let them keep out of Parliament.

Mr. TRENWITH: That is exactly the idea. I say let the people have the widest possible area of selection

for Parliament in order that all sections may be represented.

Sir WILLIAM ZEAL: To keep a lot of idle fellows doing nothing.

HON. MEMBERS: Oh, oh!40

Mr. TRENWITH: I am anxious that members of Parliament should not be idle fellows. In the non-

payment days a great many members were idle fellows who looked upon a seat in Parliament as an addition totheir social position, who cared very little for its worth, and in some instances who paid themselves very

handsomely by the opportunities they had.

Sir WILLIAM ZEAL: You cannot say that with truth. That is a most scandalous assertion!45

Mr. TRENWITH: It is the truth.

Sir WILLIAM ZEAL: Quite scandalous. You have no right to make such a statement.


13/19



Mr. TRENWITH: I do not want to initiate a discussion of this sort, but when Sir William Zeal talks about

idle fellows, he brings upon himself, naturally and properly, the rejoinder I have made.

Sir EDWARD BRADDON: A most unjust rejoinder.

Mr. TRENWITH: In some of the colonies the best lands and water-frontages-the very eyes of the colonies,in fact-were mopped up by members of Parliament during the regime of non-payment of members.5

Sir WILLIAM ZEAL: How many of them?

Mr. TRENWITH: As I said before I do not want to initiate a discussion of this sort.

Mr. WALKER: What you say may be the case in Victoria, you know.

Sir WILLIAM ZEAL: It is a gross exaggeration.

Mr. TRENWITH: I am not speaking merely of Victoria. I lived during the early part of my life in a nice10little colony which suffered in the same way.

Mr. WALKER: Do you mean Van Diemen's Land?

Mr. TRENWITH: I mean Tasmania. I was pointing out that the instincts of our people tend towards

payment of members of Parliament for their work. My hon. friend, Sir William Zeal, interjected that we have

free railway passes. I would remark that any person who knows anything about travel must recognise that it15 carries with it a large amount of expense. Those who are here, away from their homes, know that if they weregetting 400 a year for this work, they would be losing money, and they would not even be reimbursed for the

expenditure incurred. Those who urge that the amount should be left as proposed in the Bill, are not in favorof payment of members, but are simply favorable to reimbursing members for the disbursements they make in

connection with the performance of their duties.20

Mr. HIGGINS: I was always in favor of payment of members.

Mr. TRENWITH: I feel confident that my hon. friend Mr. Higgins could not have looked thoroughly atthe question or he would not have spoken as he did.

Sir WILLIAM ZEAL: He is losing now ten times as much as he will ever get for being here, but he isbearing it cheerfully.25

Mr. TRENWITH: There are some who could not afford to lose anything at all. Parliament is to becomposed, as it ought to be, of representatives of all sections of the community. There must be in Parliament

some who cannot afford to lose anything at all, and who must be paid for their services, and if those servicesare worth having, there ought to be adequate remuneration for them. I sincerely hope that the higher figure

will be [start page 1034] adopted, not because I believe in extravagance, but because I believe that any lesser30sum will not pay members of Parliament for their work.

Question-That the word "four," proposed to be struck out, stand part of the question-put. The Committeedivided.

Ayes, 26; Noes, 9. Majority, 17.

END QUOTE35 .The following also ought to show that the Sykes v Cleary decision by the High Court of

Australia was incorrect because Mr Cleary was not employed by the Commonwealth!.

Hansard 21-4-1897 Constitution Convention Debates40

QUOTE

CHAPTER I.

Part IV.-Provisions relating to both Houses.

Clause 46.-Any person who directly or indirectly himself, or by any person in trust for him, or for his use orbenefit, or on his account, undertakes, executes, holds, or enjoys, in the whole or in part, any agreement for or45on account of the public service of the Commonwealth, shall be incapable of being chosen or of sitting as a


14/19



member of the Senate or of the House of Representatives while he executes, holds, or enjoys the agreement,

or any part or share of it, or any benefits or emolument arising from it.

Any person, being a member of the Senate or of the House of Representatives, who, in the manner or to the

extent forbidden in this section, undertakes, executes, holds, enjoys, or continues to hold, or enjoy, any suchagreement, shall thereupon vacate his place.5

But this section does not extend to any agreement made, entered into, or accepted by, an incorporatedcompany consisting of more than twenty person, if the agreement is made, entered into, or accepted, for the

general benefit of the company.

Mr. CARRUTHERS: I move the addition of these words:

Any person being a member of the Senate or of the House of Representatives who, directly or indirectly,10accepts or receives any fee or honorarium for work done or services rendered by him for or on behalf of the

Commonwealth whilst sitting as such member shall thereupon vacate his place.

This will practically bring the Commonwealth law into line with the law that holds good in Victoria. I

understand that there not only is a contractor debarred, but no person can accept a fee or honorarium .

As I pointed out the other night, I see no reason why lawyers or professional men should be in a better15position than other members of the community. There is just as much likelihood for abuse to creep in if

you allow them to accept fees or honorariums as there is in the payment of contractors. I only desirethat, in a matter of this kind, if we legislate against contractors, newspaper proprietors, merchants, and

ordinary tradespeople, we should also legislate against any member of a privileged profession from doingthat which is admitted to be wrong in others. I will say nothing about corruption, but if there be a principle in20the matter, and it is a good principle in one case it is equally good in the other.

Mr. WISE: I feel a certain amount of hesitation in speaking on a matter which is openly directed againstthe profession to which I have the honor to belong; but I should be lacking in my duty if I did not disregard

any personal consideration which might induce me to keep silence and put before the Convention reasonswhy the old established rule which has prevailed under the British Constitution, and which has been the25practice of the House of Commons and of these colonies-with the sole exception of Victoria-should beadhered to in the Constitution. The distinction between contractors and those who act on behalf of the

Government in a confidential capacity must be manifest to everyone. The Commonwealth may require

the services [start page 1035] of arbitrators, engineers, or professional men of one kind or another, andthere has never been in our colony or in England any practice of disqualifying men who are called upon30to act in a confidential position towards the Government from receiving their fees from the fact thatthey hold seats in Parliament. The position of a contractor is entirely different. The interests of twocontracting parties are opposed to one another, as each endeavors to secure the best of the bargain; but

if a man is employed as a valuer by the Government the interests of the Government are his interests,

just as much as the interests of a client are the interests of the barrister; and because of that essential35difference between the two classes of cases-because in the one case, if the contractor does his dutyhonorably to himself, without any disregard of the rules of commercial morality, without any disregard

of the rules of delicacy or honor-if he does his duty by himself he will get the best he can out of theGovernment. In the other case, where a man is consulted by the Commonwealth, where the honor of

the Commonwealth is placed in his keeping-whether he is consulted as a physician, or a barrister, or a40lawyer, or an auctioneer, or a valuator-in all of these cases there is no divergence of interest.

Sir JOSEPH ABBOTT: Is not the object to keep members from being in the pay of the Government?

Sir WILLIAM ZEAL: That is the point.

Mr. WISE: Though this practice has prevailed in the House of Commons, and has been enforced with moreor less rigidity, particularly during the last few years, there has never been any rule to prevent men employed45in a confidential capacity from receiving their professional remuneration. I make no appeal that a barristershould be treated differently to others.

Sir WILLIAM ZEAL: Yes, you do.

Mr. WISE: I make no plea for barristers; for I Put them on the same footing as engineers and valuers. We

have valuers sitting in the New South Wales Parliament. I can assure the hon. member that I am speaking50with accuracy, because my seat was challenged owi ng to my acceptance of a brief from the

Government. I went to the Elections and Qualification Committee, and the whole thing was broughtup. The Committee brought in a report that there was nothing inconsistent in a man sitting in

Parliament, and receiving remuneration for professional services.


15/19



Mr. GORDON: As a barrister only?

Mr. WISE: No; as a barrister, or engineer, or valuer.

Mr. CARRUTHERS: They are disqualified in our colony.

Mr. WISE: I ought to know, because my seat was challenged. If I had known the matter would have beenbrought up, I could have had the documents here. It is a mistake to exclude professional men from public5life.

Mr. CARRUTHERS: Why are they better than commercial men?

Mr. WISE: Commercial men are not excluded. A large part of the field of professional work is occupiedby the Government in its many forms of administration in this country.

Sir GRAHAM BERRY: The very reason why they should be excluded.10

Mr. WISE: What would be thought if a commercial man had to give a bond on entering Parliamentthat he could not trade in his own colony north of Newcastle, or in Victoria in the Western District? Itwould be thought a hardship.

Sir WILLIAM ZEAL: That is an extreme case.

Mr. WISE: To a professional man half the work that comes to him is more or less for or against the15 Government. It shocks my sense of the fitness of things that a member. of Parliament should be able to take abrief or perform professional service [start page 1036] in opposition to the Government, and thus influence

either the administration or a policy in favor of his client, while he is debarred from earning a fee for doinghis best professionally to help the Government out of a difficulty. Yet no one proposes to prohibit members

from appearing against the Government. That brings we to apply an illustration. When a professional man20goes into Parliament, if not permitted to appear for the Government, he deliberately shuts himself out from

half of his practice.

Mr. MCMILLAN: Is there any proof of this ever having been abused?

Mr. WISE: No proof. It has never to my knowledge been abused in any way whatever. In answer to the crythat we are asking for special privileges, I may say we are only asking to have the same opportunities of25

practising our profession that we had before going into Parliament. Supposing the Government were the onlypurchaser of, say, drapery goods, or the purchaser of 50 per cent. of the drapery goods that come into the

colony, and there were a large number of persons employed in the sale of drapery, the position of the barristerwho is asked to give up appearing for the Government would be analogous to the merchant who would be

asked to give up selling to the Government. I would ask no special favor for barristers. Sir Joseph Abbott will30agree with me that in our own colony the largest fees paid in one year were not to barristers at all, but to two

valuers who were members of the House. The question I say has been formally decided by the Committeeon Qualifications in my person, and they reported in my favor. It has been the habitual practice in our

Parliament and in England.

Mr. ISAACS: Did they report in favor of the continuance of the practice?35

Mr. WISE: They did not touch that, and so I do not know their view of that.

Sir JOSEPH ABBOTT: It has always been a puzzle to me why this concession should be given to onebranch of the profession alone. It is only a concession which has been recognised with regard to the bar inNew South Wales. There we have a distinction between the bar and the lower branch of the profession. No

one for a moment would dream of a solicitor who is a member of either House acting as a solicitor for40any Government.

Mr. WISE: Unquestionably he would.

Sir JOSEPH ABBOTT: No such thing was ever heard of in New South Wales.

Mr. WISE: Because they have a Crown Solicitor.

Sir JOSEPH ABBOTT: If it is not allowed in New South Wales to one branch of the profession why45

should it be allowed to another branch?

Mr. WISE: I quite agree with you there.


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Sir JOSEPH ABBOTT: The whole object of preventing members of Parliament from acceptingremuneration from the Crown is to prevent the Government of the day from buying the services andsupport of members of Parliament. That point alone should enter into our consideration in coming to a

conclusion upon the amendment proposed by Mr. Carruthers. Supposing you had a House full of lawyers-

Sir GEORGE TURNER: Don't.5

Sir JOSEPH ABBOTT: What a very easy thing it would be in a country like ours, where Governments areengaged in various matters and where litigation is necessarily extensive, for a Government to divide its

patronage and secure a majority.

Sir JOHN DOWNER: Is there any suggestion that that has ever been done?

Sir JOSEPH ABBOTT: They are no more incorruptible than other people?10

Sir JOHN DOWNER: But has it ever been done?

Sir JOSEPH ABBOTT: What has happened in New South Wales? It is a scandal in that colony that amember of one branch of the Legislature [start page 1037] draws between 4,000 and 5,000 a, year from the

Government.

Mr. WISE: And saves the Government 20,000 a year.15

Sir JOSEPH ABBOTT: That is a matter of opinion. I think it is a public scandal that one man sitting inany Parliament should draw from the country between 4,000 and 5,000 a year. At one time while drawing

this amount the gentleman I refer to was a member of the Government.

Sir JOHN DOWNER: He probably would have earned more on the other side.

Mr. BARTON: Because the other side generally pays better fees than the Government.20

Sir JOSEPH ABBOTT: Mr. Wise says this has been allowed in the House of Commons for many years,

and has never been questioned. It is not likely to be questioned in such a conservative body as the House ofCommons, composed, as it mostly is, of professional men.

Mr. WISE: They are very sensitive of their purity.

Sir JOSEPH ABBOTT: I never heard of any adequate reason why barristers should have this immunity.25

Mr. WISE: That is not the case; it does not apply to barristers only.

Sir JOSEPH ABBOTT: I attach no importance to the decisions of the Committee on Elections and

Qualifications, as I have known the Committees of two different Parliaments to give different decisions on thesame statement of fact. The Committees are appointed by the House there is no judge to preside over them,

and, though they are the best men of the House, there must always be a majority on one side or the other, and30so that tribunal is not impartial. I know of no case-and I have been seventeen years in the Legislative

Assembly of New South Wales-where a member of the Assembly, who is a valuator, has received fees fromthe Government. I do know of one case in which a member of Parliament's seat was questioned on the ground

that, as an auctioneer, he occasionally sold property on behalf of the Government. It was, however, provedbefore the Committee that the whole transaction was done by his partner, and all the fees were received by his35

partner. It was a subterfuge, of course. That just shows the value of the decisions of this Committee. That manwas allowed to keep his seat. That is the only case I know of in which a man was allowed to receive the fees

unless he was a barrister. There is no instance of a medical man being allowed to receive fees.

END QUOTE.40Hansard 9-2-1898 Constitution Convention Debates

QUOTE

Sir EDWARD BRADDON.-The idea is not to make an alteration of the Constitution too easy.

Mr. ISAACS.-No one suggests that that should be done, but what is to be the limit of "too easy"? Is it to

withstand the people for ever? Can my honorable friend say, for an instance, what is to be the development of45our representative system here? If we have senators elected from the whole state, can he foresee that the

people will have an opportunity of electing the representatives they wish? Can he foresee that wealth may notact with undue weight? Can he foresee that we shall have representatives in accord with the general body of


17/19



the people? Can he tell us whether a poor man will ever have an opportunity of being elected to the

Senate? Can we tell how these things will develop? We may have a Senate and a House of Representativeswith these huge constituencies, more especially if we retain the quota of two to one-we shall in all probability

have two Houses on distinctly conservative lines; we shall have two Houses in which it will be almostimpossible for a man of moderate means to find a seat. Yet he tells me that because we have periodical5election by the people on a [start page 724] popular basis, therefore you necessarily have the views of theLegislature echoing the will of the people.

Sir EDWARD BRADDON.-The Senate may be the more democratic body of the two.

END QUOTE.10Hansard 15-4-1897 Constitution Convention Debates

QUOTE

Mr. BARTON: I scarcely think there is any real difficulty in what Mr. Isaacs has suggested. We mightpossibly say:

Subject to the provisions of this Constitution.15

In doing so we must be careful.

Mr. ISAACS: It is in clause 27.

Mr. BARTON: Yes. for a special reason. We must be careful, because the insertion of such words in some

places may lead to an undesirably wide construction in some cases where they do not occur. We must not

overlook the principle of construction that, in any statute or document, effect must be given to every20word of the document. Where there appears a repugnance which cannot be overcome there is a difficulty.There appears here no repugnance which cannot be overcome. In clause 9 we provide:

The members for each State shall be directly chosen by the people of the State as one electorate.

And in clause 10 we provide:

The Parliament of the Commonwealth may make laws prescribing a uniform manner of choosing the25members of the Senate.

If the choosing by the people as one electorate is a uniform manner, then the Constitution provides a uniformmanner. Altogether, therefore, one would not read clause 10 as being in entire opposition to that.

Mr. ISAACS: I do not think it is in opposition to it.

[start page 673]30

Mr. BARTON: Therefore it must be read as an exception to it. I take it this deals more with the manner inwhich you carry out your elections, and that the provision in a Constitution that a State shall be one electorate

in voting as an entity of the Constitution is not a matter of minor degree as are these summed up in the phrase"manner of choosing." If these matters come before the courts the courts cannot have any difficulty. When we

read these two clauses in one way they are in direct opposition; but we are told by the uniform canons of35construction that we must give due effect to every word in this Bill. If we do that we cannot give opposite

effects to these clauses; one refers to the great power conferred upon a State of acting as one electorate, andthe other to its mode of conducting elections. While it is very wise and right of the hon. member to point out

what may be a difficulty, there is really nothing that may be called a difficulty in substance about it.

Mr. DEAKIN: The definition which Mr. Barton has rather implied than given of the word "manner," while40ample enough as an answer to the criticisms of Mr. Isaacs, raises a doubt in my mind as to whether the word"manner" is also wide enough to cover an alteration in the system of voting if so desired. If "manner" relates

rather to the conduct of an election and the general provisions made for taking votes, is it wide enough tocover also, and to a certainty, a variety of systems of voting which might perhaps be indicated by the word

"method"? Would it not be desirable to take care that those States which think fit to adopt a system of45proportional voting for the representation of minorities shall have power to do so, and that the Parliament of

the Federal Commonwealth shall also be able to adopt such a system if it thinks desirable?

Mr. O'CONNOR: There are only two limitations to the Subjects which may come under the head of"manner of choosing." One is that the member is to be chosen by the people of the States as oneelectorate. That cannot be altered. The other is that the qualification shall be as stated for the House of50


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Representatives, and one man shall have one vote. Those two things are expressly provided for, and

therefore the "manner" cannot touch them. They really put the very basis upon which the Senate is elected.

Mr. BARTON: That is the clause that calls the Senate into being.

Mr. O'CONNOR: But the manner of conducting elections must embrace everything else, and the mannerof choosing, surely, would include the method in which the votes are to be recorded. The method in which5votes are recorded must allow for representation of minorities, alternative votes, or any other system.

Mr. BARTON: It would be perfectly open, for instance, for every Parliament to provide for the Hare

system of election. The tenth - clause provides that the Parliament may, in the first instance, prescribe anuniform manner applicable to every State, of choosing members for the Senate; but, subject, to such

provision, the Parliament of each State may decide how to choose members of that body. It reserves10such a power to the Parliaments of the States. But there is reserved to the Federal Parliament a power of

control, which might well be exercised, in the case of certain difficulties or misdeeds arising, to take thematter into its hands.

Mr. SYMON: I quite agree with Mr. Barton, that if a power is not taken away from the State itremains with it. But I doubt very much whether this provision in the first part of clause 10 would cover such15an alteration as is implied in the introduction of the Hare system of voting. The other name for it isproportional representation, and I doubt whether the manner of choosing the members of the Senate would

cover the alteration, either for a Federal Parliament or a State Parliament. My idea is that section is a limita-[start page 674] tion simply with regard to the manner of election, narrowly and technically understood. There

is implied, first the creation of a constituency, and second, the creation of the voters by means of the20qualification. which is also declared in the Constitution as that applicable to the more numerous Legislature in

the State. And it leaves untouched everything else. Therefore, if there were to be an alteration in the wayof introducing proportional representation, that power would remain with the States and be exercised

by them. There is nothing in this clause which enables the Parliament of the Federation to alter thequalification of electors to the Senate unless by an alteration of the Constitution. Proportional25representation may or may not-I do not know whether it would or not-alter the principle of representation. If itwould, it would, therefore, be untouched by a provision merely dealing with the manner of choosing the

members of the Senate. I think, therefore, that the clause had better be left as it is, the result being, in myview, that, whilst the Parliament of the Commonwealth may make aws which would dominate as to the

manner of choosing the members of the Senate, it would be for the States to deal with such a matter as is30involved in the Hare system of voting. It establishes a different system of representation under the name of

proportional representation.

Mr. GLYNN: I think one should look at clause 20 in connection with this, because, I submit, we are not in

a position to obtain the advantages of the Hare-Spence system with half the Senate going out every threeyears. There would be only three members to be elected in each district, and the principle of the Hare-Spence35system is not effective where there are only three seats to be filled. I intend to move that clause 12 be rejectedaltogether. It completely ties the hands of the Federal Parliament against the introduction of any such system

as the Hare-Spence. This system necessitates four, five, or six vacancies to make it practically useful. Theprinciple of it is based on transferable votes, and it would be quite impossible to get the benefit of this

transferring with only three seats to be filled.40

Mr. SYMON: But there are other systems.

Mr. GLYNN: Yes; but that system is becoming popular. It is getting liberal Press advocacy, and is being

taken up by many politicians. But unless you make provision for a sufficient number of vacancies, you willnot have the essential difference, the transferable vote of the system, which is its highest recommendation.You cannot have any such system of representation under this provision.45

Mr. HIGGINS: With regard to another part of the clause, there is an intimation in my amendments of amatter I just wish to call the attention of Mr. Barton to. It is a practical matter. I am afraid that the first

election for the Senate will not be workable upon the provision made here. It says:

Until such determination, and unless the Parliament or the Commonwealth otherwise provides, the laws in

force in the several States for the time being, relating to the following matters, namely: The manner of50conducting elections for the more numerous House of the Parliament of the State, the proceedings at such

elections, returning officers, the periods during which elections may be continued, and offiences against thelaws regulating such elections shall, as nearly as practicable, apply to elections in the several States of

members of the House of Representatives.


19/19


Of course, we know that in the different States-at all events in Victoria-you have one returning officer for

each place, and deputy returning officers. Now, as you want to elect for the whole State as one constituency, Ido not see how the regulations relating to the return of members to the Lower House will do. I would suggest

that, as we have just elected this Convention on the principle of the whole colony constituency - oneconstituency - there might be some arrangement made by which the same system should, until Parliament5otherwise provide, be adopted for the purpose [start page 675] of electing senators. I do not wish to formallymove this, but, as a matter of practical working, it is very important to look into. I do not see how officials are

going to work out the proposed plan. However, it is a matter for the draftsman, and I feel sure it will be betterleft in the hands of the draftsman than in the hands of the House.

Mr. BARTON: I quite see the effect of the suggestion my hon. friend makes, but I would like to10remind him of this-that the Federal Enabling Act of 1895 will be expired and spent before this Act can

ever come into operation. All the purposes of this Convention will have been done away with, and the

Act will have become a dead letter. If the suggestion of the hon. member refers to this, that we shouldapply what we find in that Act, really what we are doing here is applying what we find in the Act; and

for this reason, that the Federal Enabling Act says with regard to the manner of conducting elections15that the electoral law of the colony should apply. mutatis mutandis. That is really what we are enactinghere, so that there is no difference between the two things. If we refer to the E nabling Act, we find that

the ordinary electoral law of any State is mutatis mutandis adopted. That is the effect of my hon.

friend's suggestion.

Mr. HIGGINS: There is a provision in our Act for one returning officer. Here you have several reporting20

for several districts.

Mr. BARTON: First we prescribe that there is only one electorate; then we say that the proceedings inreference to returning officers should, as nearly as practicable, apply to elections for the Senate. That means

that there is only one returning officer. What is a matter of irresistible inference is just as plain as if it wereexpressed.25

Mr. ISAACS: Would the hon. member mind informing me whether the Governor-General or the Governorof the State or who else is to issue the writs for the first election? For the House of Representatives, under

clause 40, the Governor-General is to do it, but I do not see anything in connection with the elections for theSenate.

Mr. BARTON: I will answer that in a minute.30

END QUOTE.

I seek no more but that we all observe the meaning and application of the constitution and

that likewise the Governor-General does not tolerate this kind of nonsense to continue as it

undermines also the respect for the Monarchy which the Governor-General represent.35.

The issue is not if anyone does or does not respect the monarchy personally but like it or not themonarchy is in our constitution and must therefore be respected. If we show a disregard for the

RULE OF LAW then how can we expect others to adhere to the RULE OF LAW?

As this so called horse trading is only appropriate in regard of bills to be passed and only in a40

proper constitutional context and not that there are people going on as if they represent a

particular state rather then being a Federally (elected) Member of Parliament designate.Make up your mind you either accept the constitution for what it stands for or forget about being

a Member of Parliament. So to say, you cannot have the cake and eat it! And the RULE OF

LAW will be pursued against all those who offe3nd against it.45.

MAY JUSTICE ALWAYS PREVAIL.

(Our name is our motto!)

50

Awaiting your response, G. H. Schorel-Hlavka

100906-a warning to every politician- etc

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