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WITHOUT PREJUDICE Ian Hanger, AM, QC, Royal Commissioner 12-3-2014 C/o Ms Petra Gartmann, Chief Executive Officer [email protected] 5
Ref; 20140312 G. H. Schorel-Hlavka O.W.B. to Royal Commission-insulation issues-Supplement-03constitutional limitation

Sir, it appears to me that there exist a gross misconception all around as to the powers of a 10 commissioner (Royal Commission or otherwise), and It appears to me even the High Court of Australia may have gotten it wrong in the past about the powers of an investigating body set up by a government. Firstly we must understand that we are limited by the constitution (The Commonwealth of Australia Constitution Act 1900 UK)). Her Majesty Queen Elizabeth II has unlimited prerogative power as the Framers of the Constitution made clear: 15 .
HANSARD 10-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. BARTON (New South Wales).Then, again, there is the prerogative right to declare war and peace, an adjunct of which it is that the Queen herself, or her representative, where Her Majesty is not present, holds that prerogative. No one would ever dream of saying that the Queen would declare war or peace without the advice of a responsible Minister. END QUOTE

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QUOTE Mr. DEAKIN: We can make an exception in favour of imperial interests. We have no desire to interfere with the imperial prerogative in matters of war and peace!

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END QUOTE
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HANSARD 31-3-1897 Constitution Convention Debates QUOTE Mr. BARTON: I am sure my hon. friend does not mean it in any other sense. It is said that under the system which is proposed there will be deadlocks, one expression used during the debate being that We must provide for them or the machinery will go to pieces. There was a quotation from a speech by Mr. Gladstone partly used by my hon. friend Mr. Clark, the representative of Tasmania, yesterday, and which was also used by Sir Henry Parkes at the Convention in 1891, and it is a very useful one when we consider the stage at which we have arrived. I will only quote the latter part of it. It is as follows:The undoubted competency of each reaches even to the paralysis or destruction of the rest. The House of Commons is entitled to refuse every shilling of the supplies. That House and also the House of Lords is entitled to refuse its assent to every Bill presented to it. The Crown is entitled to make a thousand Peers today and as many tomorrow; it may dissolve all and every Parliament before it proceeds to business; may pardon the most atrocious crimes; may declare war against all the world; may conclude treaties involving unlimited responsibilities, and even vast expenditure without the consent, nay, without the knowledge, of the Parliament, but in reversal of policy already known and sanctioned by the nation. But the assumption is that the depositories of power will all respect one another; will evince a consciousness that they are working in a common interest for a common end; and they will be possessed, together with not less than an average intelli- [start page 388] gence, of not less than an average sense of equity and of the public interest 12-3-2014 G. H. Schorel-Hlavka O.W.B. INDEPENDENT Consultant (Constitutionalist) INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, by fax 0011-61-3-94577209 or E-mail [email protected] See also www.schorel-hlavka.com Page 1

Page 2 of right. When these reasonable expectations fail, then, it must be admitted, the British Constitution will be in danger. Mr. TRENWITH: That assumption has sometimes been falsified. Mr. BARTON: Every assumption is more or less falsified in politics. There is only one way out of the difficulties of Legislatures, and that is to make them the depositories of common sense when they know who their master is, when they know under what principles they are there, and when they know the limit to which reasonable objection can extend. END QUOTE

10 It was made clear that The Crown is entitled to make a thousand Peers to-day and as many tomorrow, no such powers however exist in the Governor-General. Commonwealth of Australia Constitution Act 1900 (UK)
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2 Governor-General
A Governor-General appointed by the Queen shall be Her Majestys representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queens pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.

20 END QUOTE The Governor-General as the representative of the monarch can only exercise such powers within the limits of the constitution that is part 9 of the Commonwealth of Australia Constitution Act 1900 (UK).
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HANSARD 6-3-1891 Constitution Convention Debates QUOTE Sir SAMUEL GRIFFITH: At all events, I would ask hon. members to pause before they determine upon asking the Queen to surrender all her prerogatives in Australia. For my part, I believe that all the prerogatives of the Crown exist in the governor-general as far as they relate to Australia. I never entertained any doubt upon the subject at all-that is so far as they can be exercised in the commonwealth. END QUOTE Hansard 1-3-1898 Constitution Convention Debates

35 QUOTE Mr. WISE (New South Wales).Her prerogative will be exercised by the Governor-General and the Ministers of the Commonwealth, just as truly as it is exercised by the Secretary of State in Downing-street. END QUOTE
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40 What we have however is that the constitution has embedded legal principles not likewise so embedded in any written constitution of the United Kingdom this is because it has none. This is also because ministers in the Commonwealth of Australia are limited by the written constitution and its embedded legal principles.
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QUOTE Sir SAMUEL GRIFFITH: I am trying to get at the ideas which are underlying the argument of hon. gentlemen. I confess I have not got at them yet. The hon. member, Mr. Deakin, talks about the powers exercised by the ministers of the Crown in Great Britain. They do not differ in any respect from the powers exercised by ministers of the Crown in any other country. Dr. COCKBURN: They are much superior to the powers of ministers here! Sir SAMUEL GRIFFITH': Not in the east. Mr. DEAKIN: The powers of our ministers are limited, and theirs are unlimited! END QUOTE
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The following also will also make clear that the Framers of the Constitution intended to have CIVIL RIGHTS and LIBERTIES principles embedded in the Constitution (which basically is our own Bill of Rights);
12-3-2014 G. H. Schorel-Hlavka O.W.B. INDEPENDENT Consultant (Constitutionalist) INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, by fax 0011-61-3-94577209 or E-mail [email protected] See also www.schorel-hlavka.com Page 2

Page 3 HANSARD 17-3-1898 Constitution Convention Debates QUOTE Mr. CLARK.for the protection of certain fundamental rights and liberties which every individual citizen is entitled to claim that the federal government shall take under its protection and secure to him. END QUOTE 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 of liberty is enshrined in this Constitution, which is also a charter of peace-of peace, order, and good government for the whole of the peoples whom it will embrace and unite. END QUOTE QUOTE Mr. SYMON (South Australia).- We who are assembled in this Convention are about to commit to the people of Australia a new charter of union and liberty; we are about to commit this new Magna Charta for their acceptance and confirmation, and I can conceive of nothing of greater magnitude in the whole history of the peoples of the world than this question upon which we are about to invite the peoples of Australia to vote. The Great Charter was wrung by the barons of England from a reluctant king. This new charter is to be given by the people of Australia to themselves. END QUOTE QUOTE Mr. THYNNE: The constitution of this federation will not be charged with the duty of resisting privileged classes, for the whole power will be vested in the people themselves. They are the complete legislative power of the whole of these colonies, and they shall be so. From [start page 106] them will rise, first of all, the federal constitution which we are proposing to establish, and in the next place will come the legislative powers of the several colonies. The people will be the authority above and beyond the separate legislatures, and the royal prerogative exercised, in their interest and for their benefit, by the advice of their ministers will be practically vested in them. They will exercise the sovereignty of the states, they will be charged with the full power and dignity of the state, and it is from them that we must seek the giving to each of those bodies that will be in existence concurrently the necessary powers for their proper management and existence. Each assembly, each legislature, whether state or federal existing under this constitution, will be as Dicey again says-a merely subordinate law-making body whose laws will be valid, whilst within the authority conferred upon it by the constitution, but invalid and unconstitutional if they go beyond the limits of such authority. END QUOTE

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QUOTE The people will be the authority above and beyond the separate legislatures, and the royal prerogative exercised, in their interest and for their benefit, by the advice of their ministers will be practically vested in them END QUOTE

Therefore, the powers of the Governor-General being subject to this constitution limits his/her 50 powers to what the constitution and its embedded legal principles allows. I now refer to an article of the Forme r Prime Minister Mr Malcolm Fraser: https://theconversation.com/releasing-cabinet-papers-sets-up-paybacks-that-hurt-our-democracy23904#comment_330943 55 QUOTE 4 March 2014, 6.38am AEST Releasing cabinet papers sets up paybacks that hurt our democracy END QUOTE
12-3-2014 G. H. Schorel-Hlavka O.W.B. INDEPENDENT Consultant (Constitutionalist) INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, by fax 0011-61-3-94577209 or E-mail [email protected] See also www.schorel-hlavka.com Page 3

Page 4 In this article Mr Malcolm Fraser appears to me to hold certain views. And on 11 March 2014 I understood that the Premier of Victoria made clear that there would be a commission established as to the coal fires (near Morwell) with coercive powers, etc. And this is where we have a major problem. Regardless if it is a Governor or Governor-General they are all bound by the 5 constitution and its embedded legal principles. This as the States were created within s106 of the constitution subject to this constitution.

Commonwealth of Australia Constitution Act 1900 (UK)

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106 Saving of Constitutions

The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.

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END QUOTE

It should be understood that a commission or Royal Commission authorised by the governorGeneral or Governor-General then so to say acts as an agent for the grantor. The Agent being the commissioner and the grantor being the Governor-General/Governor. The legal principle exist that no agent can exercise a greater power then the grantor. Therefore, where the Governor20 General/Governor is limited by the limits of the constitution and its embedded legal principles then so is its agent the commissioner (being it a Royal Commission or otherwise.). Neither a Governor/General nor a Governor can interfere in the discussions of the Executives (Cabinet), and therefore I view his/her agent a commissioner neither then can interfere in any executive decision, nor demand confidential cabinet documents to be handed over. The 25 Executive as it was at the time of the insulation debacle is no more. It was superseded by further executives and now consist of a totally different make up of different political alliances and I view a Royal Commission or any other commission should never seek to delve unconstitutionally into the political debates of any former executive. It would be to enter a political minefield which could undermine the constitutional security of future executives. 30 Again:
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 of liberty is enshrined in this Constitution, which is also a charter of peace-of peace, order, and good government for the whole of the peoples whom it will embrace and unite. END QUOTE

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Because the creation of a Royal Commission is not a legislative act but an prerogative act then the Royal Commission is limited by the limits of the Governor-General/Governor who authorises 40 this Royal Commission. It doesnt matter if a commission in the United Kingdom there may be greater investigative powers because it has no such limitations as exist within our constitution. We must always be careful when we seek to rely upon legal issues of other legal jurisdictions that we do not seek to introduce legal principles that conflict with our constitution. 45 In my view this Royal Commission would have no legal powers to demand or otherwise order the disclosure of details regarding the Cabinet consideration relevant to the insulation debacle. Neither do I accept that any commission or investigating body can exercise any coercive powers 50 that violates legal principles embedded in the constitution. The same applies to any State of Federal parliamentarian committee. Being it one or both houses committee.
Hansard 1-3-1898 Constitution Convention Debates 12-3-2014 G. H. Schorel-Hlavka O.W.B. INDEPENDENT Consultant (Constitutionalist) INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, by fax 0011-61-3-94577209 or E-mail [email protected] See also www.schorel-hlavka.com Page 4

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Page 5 QUOTE Mr. GORDON.-Well, I think not. I am sure that if the honorable member applies his mind to the subject he will see it is not abstruse. If a statute of either the Federal or the states Parliament be taken into court the court is bound to give an interpretation according to the strict hyper-refinements of the law. It may be a good law passed by "the sovereign will of the people," although that latter phrase is a common one which I do not care much about. The court may say-"It is a good law, but as it technically infringes on the Constitution we will have to wipe it out." As I have said, the proposal I support retains some remnant of parliamentary sovereignty, leaving it to the will of Parliament on either side to attack each other's laws. END QUOTE
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Hansard 1-3-1898 Constitution Convention Debates QUOTE Mr. BARTON.-They do not require to get authority from home, for this reason: That the local Constitutions empower the colonies separately to make laws for the peace, order, and good government of the community, and that is without restriction, except such small restrictions as are imposed by the Constitutions themselves, and, of course, the necessary restriction that they can only legislate for their own territory. 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 is necessary or incidental to a power given. END QUOTE HANSARD 22-4-1897 Constitution Convention Debates QUOTE Mr. BARTON: Let this speech do for the referendum also. Mr. TRENWITH: I say with these evidences of the desire on the part of the people for more freedom, for greater facilities for giving effect to the popular will, we ought to make provision in this Constitution by which the will of the people can become law. If we do that we shall be doing something which will make it more certain that this Constitution will be adopted by the people. END QUOTE Hansard 11-3-1897 Constitution Convention Debates QUOTE Dr. QUICK.-Certainly, with regard to constitutional questions. I am prepared, if necessary, to give up the subject's right of appeal; but I emphatically assert that there should be a right of appeal from the decision of the High Court in regard to this Constitution, a Constitution embodying novel provisions and giving important powers, including the power of the Federal Court to review the procedure of Parliament. The Federal High Court is empowered to-declare a law passed by both Houses and assented to by the Crown ultra vires, not because the Legislature has exceeded its jurisdiction, but because of some fault of procedure. END QUOTE
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Hansard 8-3-1898 Constitution Convention Debates QUOTE Mr. GLYNN.-I think they would, because it is fixed in the Constitution. There is no special court, but the general courts would undoubtedly protect the states. What Mr. Isaacs seeks to do is to prevent the question of ultra vires arising after a law has been passed. [start page 2004] Mr. ISAACS.-No. If it is ultra vires of the Constitution it would, of course, be invalid. END QUOTE Hansard 8-3-1898 Constitution Convention Debates QUOTE Mr. ISAACS.-The court would not consider whether it was an oversight or not. They would take the law and ask whether it complied with the Constitution. If it did not, they would say that it was invalid. They would not go into the question of what was in the minds of the Members of Parliament when the law was passed. That would be a political question which it would be impossible for the court to determine. END QUOTE HANSARD 31-1-1898 Constitution Convention Debates

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Mr. WISE (New South Wales).-The only class of cases contemplated by this section are offences committed against the criminal law of the Federal Parliament, [start page 354] and the only cases to Page 5 12-3-2014 G. H. Schorel-Hlavka O.W.B. INDEPENDENT Consultant (Constitutionalist) INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, by fax 0011-61-3-94577209 or E-mail [email protected] See also www.schorel-hlavka.com

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Page 6 which Mr. Higgins' amendment would apply are those in which the criminal law of the state was in conflict with the criminal law of the Commonwealth; in any other cases there would be no necessity to change the venue, and select a jury of citizens of another state. Now, I do not know any power, whether in modern or in ancient times, which has given more just offence to the community than the power possessed by an Executive, always under Act of Parliament, to change the venue for the trial of criminal offences, and I do not at all view with the same apprehension that possesses the mind of the honorable member a state of affairs in which a jury of one state would refuse to convict a person indicted at the instance-of the Federal Executive. It might be that a law passed by the Federal Parliament was so counter to the popular feeling of a particular state, and so calculated to injure the interests of that state, that it would become the duty of every citizen to exercise his practical power of nullification of that law by refusing to convict persons of offences against it. That is a means by which the public obtains a very striking opportunity of manifesting its condemnation of a law, and a method which has never been known to fail, if the law itself was originally unjust. I think it is a measure of protection to the states and to the citizens of the states which should be preserved, and that the Federal Government should not have the power to interfere and prevent the citizens of a state adjudicating on the guilt or innocence of one of their fellow citizens conferred upon it by this Constitution. END QUOTE

At times one hear about some Senate Committee to demand a person to appear. Parliaments are 20 there regarding legislative issues and politicians cannot overrule the constitution as they are bound by it. While they may seek answers from those who are employed within a department, I for one cannot accept that they can act beyond their powers to demand an ordinary citizen to appear before it. As like a commissioner (Royal Commission or otherwise) his/her powers are limited by the embedded legal principles of the constitution and therefore it would be ill advised 25 to deploy coercive powers in violation to constitutional embedded legal principles which may undermine the purpose of the commissions purpose.
Hansard 1-3-1898 Constitution Convention Debates QUOTE Mr. HIGGINS.-Suppose the sentry is asleep, or is in the swim with the other power? 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 a sentry. As regards a law passed by a state, every man in the Federal Parliament will be a sentry, and the whole constituency behind the Federal Parliament will be a sentry. END QUOTE

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We have experienced how former Prime Minister Robert Menzies used and misused ASIO to deny ordinary citizens their constitutional rights, even interfering in their employment opportunities, etc. Let us never again go back to such draconic kind of system. Too often we 40 have witnesses the Australian Federal Police acting unconstitutional disregarding the rights of peace loving and law abiding citizens merely because they happen to follow a certain religious faith. We must (and that includes any commissioner) guard against inroads of the constitution and in particular so regarding political issues. Investigate matter where appropriate to do so but refrain from doing so in blatant disregard of the rights of citizens and current and/or former 45 politicians. Always keep in mind that conventions do not overrule the true meaning and application of the constitution and JUSTICE is not and never will be achieved by abuse/misuse of power! This correspondence is not intended and neither must be perceived to refer to all 50 issues/details. Awaiting your response, G. H. Schorel-Hlavka O.W.B. (Friends call me Gerrit)

MAY JUSTICE ALWAYS PREVAIL

(Our name is our motto!)
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12-3-2014 G. H. Schorel-Hlavka O.W.B. INDEPENDENT Consultant (Constitutionalist) INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, by fax 0011-61-3-94577209 or E-mail [email protected] See also www.schorel-hlavka.com