1

WITHOUT PREJUDICE
Mr Tony Abbott PM

Cc:

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22-2-2015

C/o [email protected]
Bill Shorten [email protected]
Daniel Andrews Premier Victoria [email protected]
Senator George Brandis [email protected]
Mr Clive Palmer [email protected]
[email protected], [email protected],
Jacqui Lambie [email protected]
Frank Chung [email protected]
Ref; 20150222-G. H. Schorel-Hlavka O.W.B. to Mr Tony Abbott PM-Re the right of citizenship

15

Tony,
I understand that the United Kingdom has enacted provisions that a person born in the
United Kingdom can be made stateless upon mere suspicion of certain conduct, in particular that
of assisting with terrorism.

20

I published in 2003 a book titled:

INSPECTOR-RIKATI on CITIZENSHIP
A book on CD about Australians unduly harmed.
(ISBN 0-9580569-6-X prior to 1-1-2007) ISBN 978-0-9580569-6-0

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No need therefore to repeat it all. A copy is held at the Australian national Library at Canberra.
.
There appears to be a problems as to understand what is citizenship, and what is nationality.
They are not one and the same. Citizenship is when one for example resides in the State of
Victoria where one is a citizen of the State of Victoria and by this AUTOMATICALLY a
citizens of the Commonwealth of Australia.
Hansard 2-3-1898 Constitution Convention Debates
QUOTE

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Mr. SYMON.-Very likely not. What I want to know is, if there is anybody who will come under the
operation of the law, so as to be a citizen of the Commonwealth, who would not also be entitled to be a
citizen of the state? There ought to be no opportunity for such discrimination as would allow a section of a
state to remain outside the pale of the Commonwealth, except with regard to legislation as to aliens. Dual
citizenship exists, but it is not dual citizenship of persons, it is dual citizenship in each person. There may
be two men-Jones and Smith-in one state, both of whom are citizens of the state, but one only is a
citizen of the Commonwealth. That would not be the dual citizenship meant. What is meant is a dual
citizenship in Mr. Trenwith and myself. That is to say, I am a citizen of the state and I am also a citizen
of the Commonwealth; that is the dual citizenship. That does not affect the operation of this clause at all.
But if we introduce this clause, it is open to the whole of the powerful criticism of Mr. O'Connor and those
who say that it is putting on the face of the Constitution an unnecessary provision, and one which we do not
expect will be exercised adversely or improperly, and, therefore, it is much better to be left out. Let us, in
dealing with this question, be as careful as we possibly, can that we do not qualify the citizenship of this
Commonwealth in any way or exclude anybody [start page 1764] from it, and let us do that with precision and
clearness. As a citizen of a state I claim the right to be a citizen of the Commonwealth. I do not want to
place in the hands of the Commonwealth Parliament, however much I may be prepared to trust it, the
p1
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Mr G. H. Schorel-Hlavka O.W.B.
INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD
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2
right of depriving me of citizenship. I put this only as an argument, because no one would anticipate such a
thing, but the Commonwealth Parliament might say that nobody possessed of less than 1,000 a year should
be a citizen of the Federation. You are putting that power in the hands of Parliament.
Mr. HIGGINS.-Why not?

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Mr. SYMON.-I would not put such a power in the hands of any Parliament. We must rest this
Constitution on a foundation that we understand, and we mean that every citizen of a state shall be a
citizen of the Commonwealth, and that the Commonwealth shall have no right to withdraw, qualify, or
restrict those rights of citizenship, except with regard to one particular set of people who are subject to
disabilities, as aliens, and so on.
END QUOTE
HANSARD 2-3-1898 Constitution Convention Debates
QUOTE
Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that we are all alike
subjects of the British Crown.
END QUOTE
QUOTE Thomas Jefferson:
"The germ of destruction of our nation is in the power of the judiciary, an irresponsible body - working
like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless
step like a thief over the field of jurisdiction, until all shall render powerless the checks of one branch over
the other and will become as venal and oppressive as the government from which we separated.".
END QUOTE

I am well aware of the judgment of the High Court of Australia in Sue v Hill however what the
Framers of the Constitution stated was:
.

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Hansard 2-3-1898 Constitution Convention Debates

QUOTE
Mr. SYMON ( South Australia ).In the preamble honorable members will find that what we desire to do is to unite in one indissoluble Federal
Commonwealth -that is the political Union-"under the Crown of the United Kingdom of Great Britain
and Ireland , and under the Constitution hereby established." Honorable members will therefore see that the
application of the word Commonwealth is to the political Union which is sought to be established. It is not
intended there to have any relation whatever to the name of the country or nation which we are going to create
under that Union . The second part of the preamble goes on to say that it is expedient to make provision for
the admission of other colonies into the Commonwealth. That is, for admission into this political Union,
which is not a republic, which is not to be called a dominion, kingdom, or empire, but is to be a Union
by the name of "Commonwealth," and I do not propose to interfere with that in the slightest degree.
END QUOTE
.

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60

Hansard 17-3-1898 Constitution Convention Debates

QUOTE Mr. BARTON.Providing, as this Constitution does, for a free people to elect a free Parliament-giving that people
through their Parliament the power of the purse-laying at their mercy from day to day the existence of
any Ministry which dares by corruption, or drifts through ignorance into, the commission of any act
which is unfavorable to the people having this security, it must in its very essence be a free
Constitution. Whatever any one may say to the contrary that is secured in the very way in which the
freedom of the British Constitution is secured. It is secured by vesting in the people, through their
representatives, the power of the purse, and I venture [start page 2477] to say there is no other way of
securing absolute freedom to a people than that, unless you make a different kind of Executive than
that which we contemplate, and then overload your Constitution with legislative provisions to protect
the citizen from interference. Under this Constitution he is saved from every kind of interference.
Under this Constitution he has his voice not only in the, daily government of the country, but in the
daily determination of the question of whom is the Government to consist. There is the guarantee of
freedom in this Constitution. There is the guarantee which none of us have sought to remove, but every
one has sought to strengthen. How we or our work can be accused of not providing for the popular
liberty is something which I hope the critics will now venture to explain, and I think I have made their
work difficult for them. Having provided in that way for a free Constitution, we have provided for an
Executive which is charged with the duty of maintaining the provisions of that Constitution; and,
p2
22-2-2015
Mr G. H. Schorel-Hlavka O.W.B.
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 E-mail [email protected] See also www.schorel-hlavka.com at blog Http://www.scribd.com/InspectorRikati

10

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therefore, it can only act as the agents of the people. We have provided for a Judiciary, which will
determine questions arising under this Constitution, and with all other questions which should be dealt
with by a Federal Judiciary and it will also be a High Court of Appeal for all courts in the states that
choose to resort to it. In doing these things, have we not provided, first, that our Constitution shall be free:
next, that its government shall be by the will of the people, which is the just result of their freedom: thirdly,
that the Constitution shall not, nor shall any of its provisions, be twisted or perverted, inasmuch as a
court appointed by their own Executive, but acting independently, is to decide what is a perversion of its
provisions? We can have every faith in the constitution of that tribunal. It is appointed as the arbiter of the
Constitution. It is appointed not to be above the Constitution, for no citizen is above it, but under it; but
it is appointed for the purpose of saying that those who are the instruments of the Constitution-the
Government and the Parliament of the day-shall not become the masters of those whom, as to the
Constitution, they are bound to serve. What I mean is this: That if you, after making a Constitution of
this kind, enable any Government or any Parliament to twist or infringe its provisions, then by slow
degrees you may have that Constitution-if not altered in terms-so whittled away in operation that the
guarantees of freedom which it gives your people will not be maintained; and so, in the highest sense,
the court you are creating here, which is to be the final interpreter of that Constitution, will be such a
tribunal as will preserve the popular liberty in all these regards, and will prevent, under any pretext of
constitutional action, the Commonwealth from dominating the states, or the states from usurping the
sphere of the Commonwealth. Having provided for all these things, I think this Convention has done
well.
END QUOTE
.

25

It therefore must be clear that any judgment by the High Court of Australia that is contradictive
to the legal principles embedded in the constitution is simply nil and void.
One cannot have that unelected judges are by backdoor manner amending the true meaning and
application of the constitution, as this in my view is nothing less then TREASON.
.

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HANSARD 5-3-1891 Constitution Convention Debates

QUOTE Mr. MUNRO:
We have come here to frame a constitution, and the instructions that were given to us, I am happy to
say, are very clearly laid down by the hon. member, Mr. Baker, in the book which he was good enough
to distribute amongst us. He puts it in this form: That it is desirable there should be a union of the
Australian colonies. That is one of the principles that has already been settled by all our parliaments. Second,
that such union should be an early one-that is, that we should remove all difficulties in the way in order that
the union should take place at as early a date as possible. Third, that it should be under the Crown. Now, I
am quite sure that is one of the most important conditions of all with which we have to deal-that the union
that is to take place shall be a union under the Crown. Fourth, that it should be under one legislative and
executive government. That also is laid down by our various parliaments.
END QUOTE
.

HANSARD 19-4-1897 Constitution Convention

QUOTE Mr. CARRUTHERS:
Mr. Barton first of all recites Dicey to show what occurs under the unwritten Constitution of
England. But here we are framing a written Constitution. When once that Constitution is framed we
cannot get behind it.
END QUOTE
HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
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
.
HANSARD18-2-1898 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE Mr. ISAACS.The right of a citizen of this great country, protected by the implied guarantees of its Constitution,
END QUOTE

60
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Mr G. H. Schorel-Hlavka O.W.B.
INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD
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4
Hansard 6-3-1891 Constitution convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE

I hope that I am at any rate acting in the spirit in which we all labour together, and that the result of our
labour will be to found a state of high and august aims, working by the eternal principles of justice and not
to the music of bullets, and affording an example of freedom, political morality, and just action to the
individual, the state and the nation which will one day be the envy of the world.

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Mr. BARTON:

END QUOTE
And
HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
Mr. BARTON.- Of course it will be argued that this Constitution will have been made by the
Parliament of the United Kingdom. That will be true in one sense, but not true in effect, because the
provisions of this Constitution, the principles which it embodies, and the details of enactment by which
those principles are enforced, will all have been the work of Australians.
END QUOTE
And
HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
Mr. 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 QUOTE
.

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Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian
Convention)
QUOTE
Mr. ISAACS.-We want a people's Constitution, not a lawyers' Constitution.
END QUOTE
.

Hansard 19-4-1897 Constitution Convention Debates

QUOTE
Mr. CARRUTHERS:
This is a Constitution which the unlettered people of the community ought to be able to understand.
END QUOTE
.

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The birth right of a person born in a State cannot be taken away by the Commonwealth of
Australia. A person is born in a State/Territory by this has birthrights beyond the powers of the
Commonwealth to interfere with. It is by being a State citizen that the person gains his rights in
the Commonwealth of Australia.
.

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Hansard 6-3-1891 Constitution Convention Debates

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
.

60

Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
p4
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INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD
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5
QUOTE

10

Mr. WISE.-If the Federal Parliament chose to legislate upon, say, the education question-and the
Constitution gives it no power to legislate in regard to that question-the Ministers for the time being in each
state might say-"We are favorable to this law, because we shall get 100,000 a year, or so much a year, from
the Federal Government as a subsidy for our schools," and thus they might wink at a violation of the
Constitution, while no one could complain. If this is to be allowed, why should we have these elaborate
provisions for the amendment of the Constitution? Why should we not say that the Constitution may be
amended in any way that the Ministries of the several colonies may unanimously agree? Why have this
provision for a referendum? Why consult the people at all? Why not leave this matter to the Ministers
of the day? But the proposal has a more serious aspect, and for that reason only I will ask permission to
occupy a few minutes in discussing it.
END QUOTE
.

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Hansard 6-4-1897 Constitution convention Debates (Official Record of the Debates of the National
Australasian Convention)
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.

20

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!

25

END QUOTE
.

Therefore, wghile in the united kingdom a Minister may or may not be able to deny a person
stehood membership such powers cannot be translated in the commonwealth of Australia in the
same manner.
.

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Within the Commonwealth of Australia the naturalization of a person is unconstitutionally

intertwined with citizenship, and even named as such, this even so Australian citizenship by
the Framers of the Constitution was referred to as being a citizenship and not a nationality.
In the litigation of the Commonwealth of Australia versus Schorel-Hlavka the County Court of
Victoria after a 5 year epic battle upheld my submissions (so my appeal) unchallenged by any of
the Attorney-Generals.
QUOTE 19-7-2006 ADDRESS TO THE COURT Part 1 Mr G. H. Schorel-Hlavka.County Court of Victoria
proceedings Case numbers T01567737 & Q10897630

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The Defendants submits, that Australian citizenship can only be obtained by obtaining
State citizenship, as it is not a nationality, but has to deal with being a recognised State
citizens where one AUTOMATICALLY then obtain Australian citizenship
(Commonwealth citizenship which includes franchise. Because lawyers require to
make an Oath of alliance when seeking to be admitted to the BAR to practice, which
now is to a LEGAL FICTIONAL Queen of Australia (as set out further in this
ADDRESS TO THE COURT), while being a Subjects of the British Crown, (as also set
out further), then there is a clear conflict for any judge to deal with this matter which would
in effect involve his/her own personal legal position if qualified to be a judge of this Court.
Albeit judicial officers may not be aware that their true constitutionally nationality is and
remain to be British nationals and so any Oath of alliance to a LEGAL FICTIONAL
Queen of Australia would be a conflict. Where the High Court of Australia in Sue v
Hill ousted Heather Hill of being a member of parliament upon the basis that she was
having alliance to a foreign Queen, then as set out further in this ADDRESS TO THE
p5
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Mr G. H. Schorel-Hlavka O.W.B.
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6
COURT, the same applies to all other persons, including judicial officers, who by birth
(including all those persons born within the Commonwealth of Australia) or by
naturalization are in fact subjects of the British Crown.
5

Hansard 2-3-1898 Constitution Convention Debates;

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.

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

comprehensive, and nobler than that of the states, I would ask why is it not implanted in the
Constitution? Mr. Barton was not present when I made my remarks in proposing the
clause. I then-anticipated the point he has raised as to the position we occupy as subjects of
the British Empire. I took occasion to indicate that in creating a federal citizenship,
and in defining the qualifications of that federal citizenship, we were not in any way
interfering with our position as subjects of the British Empire. It would be beyond the
scope of the Constitution to do that. We might be citizens of a city, citizens of a
colony, or citizens of a Commonwealth, but we would still be, subjects of the Queen.
Again;
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.
The High Court of Australia deriving its judicial powers within the Constitution
(Commonwealth of Australia Constitution Act 1900 (UK)) cannot go beyond what is
embedded in the Constitution, hence the constitutional problem exist that judicial officers are
constitutionally (by birth or naturalization) subjects of the British Crown but wrongly
excluded by the Sue v Hill decision as being deemed to be by this having alliance to a foreign
Monarch.
In view that by the Sue v Hill ruling the effect is that all judicial officers within the
Commonwealth of Australia then are having alliance to a foreign Monarch then none of the
judicial officers (including those of the High Court of Australia) could possibly determine
their own status as only the Privi Council could do so.
As set out further in this document Subsection 51(xix) of the Constitution was provided for by
the British Parliament to naturalize aliens to become British nationals, and it never
included any purported Australian nationality. The High Court of Australia has no
constitutional powers to amend the Constitution as to purport this subsection 51(xix) has a
different meaning then intended by the Framers of the Constitution, and hence all persons
born in the Commonwealth of Australia and those naturalized are and remain subjects of
the British Crown with their alliance to the British Monarch. As also set out extensively
further in this ADDRESS TO THE COURT, no one can have alliance to two Monarchs and
therefore any Oath that purports to be to a Queen of Australia is a disqualification to serve
as a judicial officer. With laws (legislation) now being enacted under the name of Queen of
Australia then all laws so enacted are constitutionally ULTRA VIRES and so without legal
force. This applies also to Proclamations and writs.
The Defendant submits, that for this also the Proceedings are permanently stayed, so the
constitutional issues are to be sorted out by the Commonwealth Director of Public
Prosecutions as to if this Court can invoke legal jurisdiction and if there is any judicial officer
of any Court in the Commonwealth of Australia who in fact is qualified to hear the case, or
that by their Oath of alliance to the LEGAL FICTION Queen of Australia they have
all disqualified themselves from being a judicial officer to hear and determine matters.
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7
The Defendant submits, that the same applies to any lawyer seeking to prosecutor this case
for the Commonwealth Director of Public Prosecutions.
5

Those who did not make an Oath of alliance to the LEGAL FICTION Queen of
Australia still have the problem that they are faced with a Court system that now
purportedly (Sue v Hill) operates under a LEGAL FICTION Queen of Australia and as
such the conflict remains to exist.

10

This ADDRESS TO THE COURT to some extend has quoted the intentions of the Framers
of the Constitution and the true meaning of citizenship including Commonwealth
citizenship (Australian citizenship) and how one obtain it. Including the various references
of Australian citizenship under the British nationality! It is the Sue v Hill judgment that has
thrown it all in a chaos where the High Court of Australia purported that Australian
citizenship is a nationality where in fact no such constitutional powers ever existed, in
deed specifically was stated not to exist. Where then nevertheless the Sue v Hill judgment
prevents a British national to sit in the parliament, contrary to the intentions of the Framers of
the Constitution then it equally applies to all other members of parliament and any judicial
officers who unbeknown to themselves are in fact British nationals.

15

20
In my 30 September 2003 published book (Of which 4 copies were provided that day to the
High Court of Australia Melbourne Registry, and a further 4 copies on 3 October 2003);

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40

INSPECTOR-RIKATI on CITIZENSHIP
A book on CD about Australians unduly harmed.
ISBN 0-9580569-6-X
I did set out then that with those who had joined Pauline Hanson One Nation were in fact
members regardless of what was stated otherwise on the flip side of their membership card.
Subsequently, in November 2003, the Court of Appeal precisely used this to overturn Pauline
Hanson and David Ettridge convictions.
Because the Commonwealth of Australia was specifically denied to define/declare citizenship
by the Framers of the Constitution then the Australian Citizenship Act 1948 is ULTRA
VIRES, for so far it purports to define/declare citizenship and by this all persons natural born
in the Commonwealth of Australia and those naturalized within the powers of subsection
51(xix) of the Constitution are and remain in fact British nationals. By the, albeit illconceived judgment of Sue v Hill therefore are deemed to be under an Oath of alliance of a
foreign monarch. All judgments handed down in the name of the Queen of Australia
therefore are a legal nullity.
END QUOTE 19-7-2006 ADDRESS TO THE COURT Part 1 Mr G. H. Schorel-Hlavka.County Court of
Victoria proceedings Case numbers T01567737 & Q10897630

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QUOTE 19-7-2006 ADDRESS TO THE COURT Part 1 Mr G. H. Schorel-Hlavka.County Court of Victoria

proceedings Case numbers T01567737 & Q10897630

The Defendant submits, that any judicial officer who was natural born and/or naturalized
was and remained to be a British national with an alliance to the British Crown. And where
such judicial officer made an oath of alliance to the LEGAL FICTION Queen of Australia
then this judicial officer has an purported oath of alliance to two different monarchs and
cannot be deemed to be a acceptable judicial officer for purpose to make judicial
determinations.

p7
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Mr G. H. Schorel-Hlavka O.W.B.
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8
The Defendant submits, that as also further set out below, where any natural born and/or
naturalized person has made an oath of alliance to the LEGAL FICTION Queen of
Australia, then this would be an act of sedition.
5

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15

The Defendant submits, that any natural born or naturalized person who made an oath of
alliance to the LEGAL FICTION Queen of Australia is by Section 44 of the Constitution
disqualified from being a Member of Parliament.
The Defendant submits, that because subsection 51(xix) of the Constitution provided for
naturalization of aliens to be granted British nationality then any notion by the ULTRA
VIRES Australian Citizenship Act 1948 legislation that they were granted Australian
citizenship is NULL AND VOID in that the were and remain to be actually made British
nationals.

20

The Defendant submits, that because the Victorian constitution relied upon the ULTRA
VIRES Australian Citizenship Act 1948 for certain rights and so also further legislation
demand certain government functions that the person must be an Australian citizen then all
such persons, being it police, judicial officers, Members of State parliament, etc, all failing to
have Australian citizenship as an ULTRA VIRES legislation cannot be enforced, by this all
are without legal right in their positions.

25

The Defendant submits, that by the ruling in Sue v Hill, that British nationals own alliance
to a foreign Monarch cannot hold a seat in Parliament, then for this also all natural born and
naturalized persons who are in fact British nationals by this ruling are disqualified from being
a Member of Parliament.
END QUOTE 19-7-2006 ADDRESS TO THE COURT Part 1 Mr G. H. Schorel-Hlavka.County Court of
Victoria proceedings Case numbers T01567737 & Q10897630

30

QUOTE 19-7-2006 ADDRESS TO THE COURT Part 2 Mr G. H. Schorel-Hlavka.County Court of Victoria

proceedings Case numbers T01567737 & Q10897630

35

QUOTE

It is a matter of fact that I was issued with a Certificate of Australian Citizenship No.
ME9401317C on the 28th day of March 1994. I do not believe that the Commonwealth Director
of Public Prosecutions contest the issue of this certificate.
The certificate states;
COMMONWEALTH OF AUSTRALIA
Australian citizenship Act 1948
Certificate of Australian Citizenship

40
GERRIT HENDRIK SCHOREL
Born on 7 th June 1947

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having applied for a Certificate of Australian Citizenship, having satisfied the conditions
prescribed by the Australian Citizenship Act 19448 for the grant of such Certificate
and having undertaken to fulfil the responsibilities of a citizen.
I the Minister for Immigration and Ethnic Affairs,
Grant this Certificate of Australian citizenship to the abovenamed applicant who is
an Australian citizen on and after 28 th March 1994.
Issued by the authority
p8
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9
Of the Minister
For Immigration and
Ethnic Affairs.
END QUOTE

5
By marriage, on 28 March 2001, I became Gerrit Hendrik Schorel-Hlavka
Talbot v. Janson, 3 U.S. 133 (1795)
10

Yet, it is to be remembered, and that whether in its real origin, or in its artificial state,
allegiance, as well as 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 new order of things. Allegiance and
citizenship, differ, indeed, in almost every characteristic. Citizenship is the 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 is perpetual. With such essential
differences, the doctrine of allegiance is inapplicable to a system of citizenship; 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 are striking 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.

15

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25
And

These are tacit acknowledgments of the right of expatriation, vested in the individuals; for,
though they are instances of adopting, not of discharging, subjects; yet, if Great Britain
would (ex gratia) protect a Russian naturalized 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 these deviations 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.

30

35
And

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 where surrendered by the people; and it must be repeated, that,
what has not been given, ought not to be assumed. It may be said, however, that such
a power is necessary to the government, and that it is implied in the authority to
regulate the business of naturalization. In considering these positions, it must be
admitted, that although an individual has a right to expatriate himself, he has not a
right to seduce 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 infraction of 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, by fraud, or by persuasion.

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And

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10

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10
But naturalization and expatriation are matters of internal police; and must depend
upon the municipal 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 Court is only a branch of that power; and
depends on Congress for what portion it shall have, except in the cases of
ambassadors, &c. particularly designated in the constitution. The power of declaring
whether a 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 decide against 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 be treason 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 and nations) 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 his citizenship. It is not,
however, private relations, but public relations; private responsibility, but public
responsibility; 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 his debts, 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 of
expatriation, 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, are matter 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
perpetual controul. But the true distinction appears to be this:--The citizens of the neutral
country may still exercise the right 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 sacred rights 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 two sovereigns. 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 and good republicans, it must be presumed that he rises to another, if not
to a better, life and country. An act 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 the most 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 no other 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 human balloon, detached and buoyant in the
political atmosphere, gazed at wherever he passes, and settled wherever he touches?
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11
But, on the other hand, the act of swearing allegiance to another sovereign, is
unequivocal and conclusive; extinguishing, at once, the claims of the deserted, and
creating the right of the 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 naturalization law 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 of expatriation? If America [p*146] makes citizens in that way,
shall we not allow to other nations, the privilege of 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 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 the privateer, 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 the municipality of Point a
Pitre, by the French Consul, and by the Governor of Guadaloupe. 2d, That Redick was
also, a naturalized citizen of the French Republic, when he purchased the vessel, and
received a commission to employ her as a privateer.

10

15

20
And

Ballard was a citizen of Virginia, and also of the United States.

25

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.
Section 51(xix) provides for naturalization.

30

As already extensively placed before the magistrates in previous proceedings (upon which I rely
before this Court also) some of the Colonies (now States) naturalized aliens and others didnt
however each and every Colony did have legislation in regard of citizenship and the rights to
franchise.

35

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 would be approved by the British Parliament but
CITIZENSHIP legislative powers would be retained by the States in the newly formed
Commonwealth of Australia.
Mr Quick proposed to give the Commonwealth of Australia constitutional powers to
define/declare CITIZENSHIP but this was defeated/refused by the Delegates!

40

I took occasion to indicate that in creating a federal citizenship, and in defining the
qualifications of that federal citizenship, we were not in any way interfering with our
position as subjects of the British Empire. It would be beyond the scope of the
Constitution to do that.
Therefore, 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 any person
as a British subject.

45

Hansard 2-3-1898 Constitution Convention Debates;

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12
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.

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

comprehensive, and nobler than that of the states, I would ask why is it not implanted in the
Constitution? Mr. Barton was not present when I made my remarks in proposing the
clause. I then-anticipated the point he has raised as to the position we occupy as subjects of
the British Empire. I took occasion to indicate that in creating a federal citizenship,
and in defining the qualifications of that federal citizenship, we were not in any way
interfering with our position as subjects of the British Empire. It would be beyond the
scope of the Constitution to do that. We might be citizens of a city, citizens of a
colony, or citizens of a Commonwealth, but we would still be, subjects of the Queen. I
see therefore nothing unconstitutional, nothing contrary to our instincts as British
subjects, in proposing to place power in this Constitution to enable the Federal Parliament
to deal with the question of federal citizenship. An objection has been raised in various
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, and it 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 says that 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 the limits of this jurisdiction. That
shows the danger of attempting definitions, and although I have placed a proposed
clause defining federal citizenship upon the notice-paper, the subject, seems to me
surrounded with the greatest difficulty, and no doubt the honorable and learned
members (Mr. Wise, Mr. O'Connor, and Mr. Symon) would be the first to attack any
definition, and would be able to perforate it. In my opinion, it would be undesirable to
implant a cast-iron definition of citizenship in the 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
Commonwealth will seek to derogate from it, but I will not place a power in the hands of
the Commonwealth which will enable them to derogate from it, and if that is not done it
will be merely a dead letter. Is there any citizen of the Commonwealth who is not already a
citizen of the state? State citizenship is his birthright, and by virtue of it he is entitled to the
citizenship of the Commonwealth. When you have immigration, and allow different
people to come in who belong to nations not of the same blood as we are, they become
naturalized, and thereby are entitled to the rights of citizenship.
Sir EDWARD BRADDON.-They are citizens if they are British subjects before they
come here.
Mr. SYMON.-That is a point I do not wish to deal with. But they become citizens of
the states, and it is by virtue of their citizenship of the states that they become citizens
of the Commonwealth. Are you going to have citizens of the state who are not citizens
of the Commonwealth?
Mr. KINGSTON.-In some states they naturalize; but they do not in others.
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13
Mr. WALKER.-Is not a citizen of the state, ipso facto, a citizen of the
Commonwealth?
And
Mr. SYMON.-The honorable and learned member is now dealing with another matter.
Would not the provision which is now before us confer upon the Federal Parliament the
power to take away a portion of this dual citizenship, with which the honorable and
learned member (Dr. Quick) has so eloquently dealt? If that is the case, what this
Convention is asked to do is to hand over to the Federal Parliament the power, whether
exercised or not, of taking away from us that citizenship in the Commonwealth which we
acquire by joining the Union. I am not going to put that in the power of any one, and if it is
put in the power of the Federal Parliament, then I should feel that it was a very serious blot
on the Constitution, and a very strong reason why it should not be accepted. It is not a
lawyers' question; it is a question of whether any one of British blood who is entitled to
become a citizen of the Commonwealth is to run the risk-it may be a small risk-of
having that taken away or diminished by the Federal Parliament! When we declare"Trust the Parliament," I am willing to do it in everything which concerns the working out
of this Constitution, but I am not prepared to trust the Federal Parliament or anybody to
take away that which is a leading inducement for joining the Union.

10

15

And
20

Mr. OCONNOR.-I have said that I do not see that such a trust in the Federal Parliament
would be effective. I sympathize with the honorable member's view, but I think it will be
carried out by some kind of definition of citizenship, and I was pointing out the only
aspect in which it appears to me it might be desirable to have some such definition, and
that is, you are creating new rights to citizens of the Commonwealth as citizens of the
Commonwealth in regard to your courts. You establish courts for the Commonwealth, and
every citizen of the Commonwealth is entitled to the use of those courts.

25

Mr. HIGGINS.-Who is he?

And
30

Mr. GLYNN (South Australia).-I shall have to oppose Dr. Quick's amendment, although
I would really go further than he intends. His object is to have a common citizenship, and
he proposes to define that in a proposed new clause, 120A, which reads as follows:All persons resident within the Commonwealth, being natural-born or naturalized subjects
of the Queen, and not under any disability imposed by the Parliament, shall be citizens of
the Commonwealth;

35

and he now wants to give power to Parliament to vary that subsequently.

Mr. ISAACS.-It is not clause 120A that he is proposing now.
Mr. HIGGINS.-It is his amendment in clause 52-to insert "Commonwealth citizenship"
as a new sub-section.

40

Mr. GLYNN.-I am quite aware of that, but what I want to understand is whether Dr.
Quick will propose the insertion of clause 120A, and also put it in the power of the
Parliament to vary the Commonwealth citizenship under clause 52? That is the point about
which I am doubtful. But I desire to point out that Dr. Quick is not going as far as they
have gone in America or Germany. There is a common citizenship both of the
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14
Commonwealth and of the states in America. Citizenship of the Commonwealth carries
with it citizenship of the states, and the Constitution provides that immunities and
privileges enjoyed by the citizens of a particular state shall be equally shared, when in that
state, by the citizens of all the other states. Now, the German Constitution makes a
declaration that there must be a common citizenship. It does not state that the Parliament
of Germany will have the power of providing for a citizenship of the empire, but that there
must be a common citizenship of the whole empire, and that the privileges which are given
in one part of the empire would apply right through the whole empire. That is to say, there
is a Commonwealth citizenship and a state citizenship running the one with the other-a
perfect equality of rights. All that is done in Germany is that Article 3 of the Imperial
Constitution declares that there shall be a common citizenship for all Germany, and that
the rights of the individual citizens of any state must be extended to the individual citizens
of any other state as long as they come within the jurisdiction of the former state; but the
German Constitution also provides that Parliament-and here is the distinction-may define
what the conditions of that common citizenship are to be. The Constitution declares that
there must be a common citizenship, but it leaves the determination of the particular terms
of that citizenship to the Parliament. That is different from the proposal of Dr. Quick.

10

15

And
[start page 1761]
20

Mr. KINGSTON.-It was in the Bill.

Mr. OCONNOR.-There is no portion of the Bill which gives any right of citizenship, or
points out what citizenship is.
Mr. HIGGINS.-The word "citizen " occurred in clause 110, although it is now struck
out.

25

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40

And
Mr. OCONNOR.-The words in clause 110 do not define any right of citizenship; they
prevent certain restrictions upon it. I would point out to Dr. Quick that he is proposing to
give a power to regulate or describe rights of citizenship, when we really do not know at
present what is meant by a citizen. I confess I do not know what the honorable and learned
member means by that term. Does he mean only the political rights which you give to
every inhabitant of a state who is qualified to vote, or does he go beyond that, as the
American decisions have gone, and describe every person who is under the protection of
your laws as a citizen? The citizens, the persons under the protection of your laws, are not
the only persons who are entitled to take part in your elections or in your government, but
every person who resides in your community has a right to the protection of your laws and
to the protection of the laws of all the states, and has the right of access to your courts. If
you are going to define citizenship for the purpose of giving these rights, you must say
clearly what you mean by citizenship. You leave it to the Federal Parliament to say what
citizenship is; and I think there is a great deal in what Mr. Glynn says, that we must not
hand over to the Federal Parliament the power to cut down the rights the inhabitants of
these states have at the present time. If we do not know what you mean by citizenshipMr. ISAACS.-Commonwealth citizenship.

45

Mr. OCONNOR.-Exactly. But if we do not know what you mean by citizenshipwhether you mean to restrict it to political rights or to the right of protection under your
laws, which every person, whether a naturalized subject or a person for the time being
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15
resident in one of these communities, possesses-we may drive the Federal Parliament into
some difficulty, in which it is not at all unlikely that some cutting down of what we believe
to be the rights of citizenship may take place. I would point out that under the Bill the
power of dealing with aliens and immigration gives an abundant right to the
Commonwealth to protect itself, and, of course, the right of defining citizenship will
have to be exercised with due regard to any laws which might be made regarding the
position of aliens. I would ask my honorable friend (Dr. Quick) to say if he has considered
how far he means the Federal Parliament to go in the definition of citizenship, and what he
means by citizenship? Because, unless we have a clear idea of that, it seems to me that we
are handing over to the Federal Parliament something which is vague in the extreme, and
which might be misused.

10
And

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

15

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Mr. HIGGINS.-Why not?

Mr. SYMON.-I would not put such a power in the hands of any Parliament. We must
rest this Constitution on a foundation that we understand, and we mean that every
citizen of a state shall be a citizen of the Commonwealth, and that the Commonwealth
shall have no right to withdraw, qualify, or restrict those rights of citizenship, except
with regard to one particular set of people who are subject to disabilities, as aliens,
and so on. Subject to that limitation, we ought not, under this Constitution, to hand over
our birth right as citizens to anybody, Federal Parliament or any one else, and I hope the
amendment will not be accepted.

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45

And
Mr. BARTON.-If the honorable member's exclamation means more than I have
explained, then the best thing to do is to confide to the Commonwealth the right of dealing
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16
with the lives, liberty, and property of all the persons residing in the Commonwealth,
independently of any law of any state. That is not intended, but that is what the expression
"Trust the Federal Parliament" would mean unless it was limited by the consideration I
have laid down. I am sure Dr. Quick will see that he is using a word that has not a
definition in English constitutional law, and which is not otherwise defined in this
Constitution. He will be giving to the Commonwealth Parliament a power, not only of
dealing with the rights of citizenship, but of defining those rights even within the very
narrowest limits, so that the citizenship of a state might be worth nothing; or of
extending them in one direction, and narrowing them in another, so that a subject
living in one of the states would scarcely know whether he was on his head or his
heels. Under the Constitution we give subjects political rights to enable the Parliament to
legislate with regard to the suffrage, and pending that legislation we give the qualification
of electors. It is that qualification of electors which is really the sum and substance of
political liberty, and we have defined that. If we are going to give the Federal Parliament
power to legislate as it pleases with regard to Commonwealth citizenship, not having
defined it, we may be enabling the Parliament to pass legislation that would really
defeat all the principles inserted elsewhere in the Constitution, and, in fact, to play
ducks and drakes with it. That is not what is meant by the term "Trust the Federal
Parliament."

20

25

Mr. HIGGINS.-You give the Federal Parliament power to naturalize.

Mr. BARTON.-Yes; and in doing that we give them power to make persons subjects of
the British Empire. Have we not done enough? We allow them to naturalize aliens. That
is a power which, with the consent of the Imperial authority, has been carried into
legislation by the various colonies, and, of course, we cannot do less for the
Commonwealth than we have done for the colonies.
Mr. KINGSTON.-Such legislation is only good within the limits of each state.

30

35

40

Mr. BARTON.-Yes; and here we have a totally different position, because the actual
right which a person has as a British subject-the right of personal liberty and
protection under the laws-is secured by being a citizen of the states. It must be
recollected that the ordinary rights of liberty and protection by the laws are not
among the subjects confided to the Commonwealth. The administration of [start page
1766] the laws regarding property and personal liberty is still left with the states. We
do not propose to interfere with them in this Constitution. We leave that amongst the
reserved powers of the states, and, therefore, having done nothing to make insecure the
rights of property and the rights of liberty which at present exist in the states, and having
also said that the political rights exercisable in the states are to be exercisable also in the
Commonwealth in the election of representatives, we have done all that is necessary. It is
better to rest there than to plunge ourselves into what may be a sea of difficulties. We do
not know to what extent a power like this may be exercised, and we should pause before we
take any such leap in the dark.
Again;

45

Mr. SYMON.-I would not put such a power in the hands of any Parliament. We must
rest this Constitution on a foundation that we understand, and we mean that every
citizen of a state shall be a citizen of the Commonwealth, and that the Commonwealth
shall have no right to withdraw, qualify, or restrict those rights of citizenship, except
with regard to one particular set of people who are subject to disabilities, as aliens,
and so on. Subject to that limitation, we ought not, under this Constitution, to hand over
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17
our birth right as citizens to anybody, Federal Parliament or any one else, and I hope the
amendment will not be accepted.
Also
5

The administration of [start page 1766] the laws regarding property and personal
liberty is still left with the states.
As was made clear by Mr quick;

10

I took occasion to indicate that in creating a federal citizenship, and in defining the
qualifications of that federal citizenship, we were not in any way interfering with our
position as subjects of the British Empire. It would be beyond the scope of the
Constitution to do that. We might be citizens of a city, citizens of a colony, or citizens
of a Commonwealth, but we would still be, subjects of the Queen.
Therefore, the Constitution never provided any constitutional powers for the Commonwealth of
Australia to legislate as to CITIZENSHIP.

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As the Commonwealth of Australia was provided with powers within Subsection 51(xix) of the
constitution to naturalize aliens to become British nationals and the Nationalization Act
was enacted after Federation then clearly the powers to naturalize an alien to become a British
national is not diminish. In 1948, the Federal parliament then replaced the Naturalization Act
with the Australian citizenship Act 1948 by this STEALING the legislative powers of the
States states in regard of citizenship by purporting that there was an Australian citizenship as
an Australian nationality.
Barton J,

the parliament cannot give the word a meaning

not warranted by s73 of the Constitution.

Commonwealth v Brisbane Milling Co. Ltd. (1916) 21 C.L.R. 559; A.L.R. 272.
25

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If the Commonwealth of Australia never had any constitutional powers to declare/define

citizenship then what is the meaning of the Certificate of Australian Citizenship realty?
If Australian citizenship is purported to be Australian nationality then this must fail as Subsection
51(xix) provided constitutional powers for the Commonwealth of Australia to naturalize aliens
to become British nationals! Without any Section 128 referendum this cannot be changed to
some purported Australian nationality.
We either have a Constitution or not! We use it as was intended by the framers of the
Constitution, modified as have been provided for by the successful referendums or we have no
constitution at all and no federation exist!

35
In view that the British parliament declared Australians to be foreigners can this then alter the
application of the constitution, one may ask?

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Constitutional law cannot be amended by mere implication but must be amended by appropriate
legislation. In the case of the Commonwealth of Australia Constitution Act 1900 (UK) Section
128 exclude the British Parliament to amend the constitution as it can only be amended by the
consent of the people, as expressed by a Section 128 referendum. Hence, regardless if the British
parliament did or didnt pass legislation to declare Australians foreigners the only way to
resolve the matter was and remains to have the Constitution amended to allow the
Commonwealth of Australia to naturalize aliens to become Australian nationals.
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END QUOTE 19-7-2006 ADDRESS TO THE COURT Part 2 Mr G. H. Schorel-Hlavka.County Court of
Victoria proceedings Case numbers T01567737 & Q10897630

QUOTE 19-7-2006 ADDRESS TO THE COURT Part 2 Mr G. H. Schorel-Hlavka.County Court of Victoria

proceedings Case numbers T01567737 & Q10897630

Whatever the argument might be of those seeking to advocate that the Commonwealth of
Australia is an independent nation, the truth is that constitutionally it never is and never can be.
Hansard 2-3-1898 Constitution Convention Debates
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Mr. SYMON (South Australia).-I beg to moveI wish to clear away the misconception in the first place that I have any objection whatever
to the word "Commonwealth," or to the use of the word "Commonwealth," in this Bill. I
have no objection to that where it is confined to the expression of the political Union. In
the preamble honorable members will find that what we desire to do is to unite in one
indissoluble Federal Commonwealth-that is the political Union-"under the Crown of the
United Kingdom of Great Britain and Ireland, and under the Constitution hereby
established." Honorable members will therefore see that the application of the word
Commonwealth is to the political Union which is sought to be established. It is not
intended there to have any relation whatever to the name of the country or nation which we
are going to create under that Union. The second part of the preamble goes on to say that it
is expedient to make provision for the admission of other colonies into the Commonwealth.
That is, for admission into this political Union, which is not a republic, which is not to
be called a dominion, kingdom, or empire, but is to be a Union by the name of
"Commonwealth," and I do not propose to interfere with that in the slightest degree.
The first clause says-This Act maybe cited as the Commonwealth of Australia Constitution
Act." I assent to all that. Then comes clause 3, which says it shall be lawful for the Queen,
by and with the advice of Her Majesty's Most Honorable Privy Council, to declare by
proclamation that, on and after a day therein appointed, not being later than one year after
the passing of this Act, the people of the colonies enumerated shall be united in a Federal
Constitution under the name of-I say it ought to be "of Australia." Why do we want to put
in "the Commonwealth of Australia"? We are there by our Constitution giving the name to
our country, and, to the united people who are to be established as a nation under the
Constitution. By what name, I would like to ask honorable members, will they call this
Federal Union? It will be called by the name Australia, whether we like it or not.
Again;
That is, for admission into this political Union, which is not a republic, which is not to
be called a dominion, kingdom, or empire, but is to be a Union by the name of
"Commonwealth," and I do not propose to interfere with that in the slightest degree.
The Commonwealth of Australia is a LIMITED POLITICAL UNION by the Colonies (now
States) As like the EUROPEAN UNION is in Europe.
No one would seek to argue that the European Union is a country. Yet, it doesnt matter if one is
a British national, a Dutch national, Frenchman, German or else they are all citizens of the
European Union
Citizenship is not limited to the nationality of the person but by the territory in which the person
resides that forms part of the European Union.
No one could dream of the European Union to become some Monarchy, Republic or Dominion.
Likewise, the Commonwealth of Australia likewise cannot be a Monarchy, Republic or
Dominion. It is a federation out of the States.
The States themselves can perhaps become independent in time and then assume to become a
Republic or Monarchy but not while they remain dominions. If the states cannot become
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19
Monarchies or Republics in the current climate then their Agent, so to say, the Commonwealth of
Australia hardly can take on some different constitutional position.

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The term citizenship was not at all associated with nationality but rather covered any
subject of the Queen residing within the Commonwealth of Australia or for that the continent
Australia.
The terms Australian citizen, Australian citizens , Australian citizenship,
Commonwealth citizens, federal citizen, citizen of the Commonwealth were used ongoing
by the Framers of the Constitution, as shown below, and as such were terms not as to
nationality but in regard of citizenship as being a resident in the colonies (now States) and the
Commonwealth of Australia. Therefore any constitutionalist, as I am, is or should be aware that
the term Australian citizenship cannot be held to relate to nationality. Neither that there can be
an Australian nationality merely because some judges happen to desire to make such a
declaration as the proper powers to legislate for this is to follow the procedures within Section
128 of the Constitution.
13-02-1890 Re; Australian citizen
13-03-1891 Re; Australian citizens
25-03-1897 Re; Australian citizens
Re; dual citizenship
26-03-1897 Re; citizen of the Commonwealth
29-03-1897 Re; Dual citizenship
30-03-1897 Re; federal citizen
Re; dual citizenship
31-03-1891 Re; Australian citizen
Re; citizen of the Commonwealth
Re; dual citizenship
12-04-1897 Re; citizen of the Commonwealth
14-04-1897 Re; citizen of the Commonwealth
15-04-1897 Re; Dual citizenship
15-09-1897 Re; citizen of the Commonwealth
Re; Commonwealth citizenship
Re; dual citizenship
17-09-1897 Re; citizen of the Commonwealth
24-01-1898 Re; Australian citizen
28-01-1898 Re; Australian citizenship
Re; Commonwealth citizens
04-02-1898 Re; citizen of the Commonwealth
08-02-1898 Re; Australian citizenship
Re; Commonwealth citizenship
Re; citizen of the Commonwealth
Re; federal citizenship
Re; dual citizenship
15-02-1898 Re; citizen of the Commonwealth
23-02-1898 Re; citizen of the Commonwealth
24-03-1898 Re; citizen of the Commonwealth
01-03-1898 Re; Australian citizens
Re; citizen of the Commonwealth
02-03-1898 Re; citizen of the Commonwealth
Re; federal citizenship
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20

Re; Commonwealth citizenship

Re; dual citizenship
03-03-1898 Re; citizen of the Commonwealth
Re; federal citizenship
Re; Commonwealth citizenship
04-03-1898 Re; citizen of the Commonwealth
10-03-1898 Re; Australian citizenship
Such as Hansard 8-2-1898 Constitution Convention Debates

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Mr. SYMON.-Yes. Mr. Wise asked why should New South Wales or Victoria-to take a case
which is extremely unlikely to occur-prohibit a citizen of the neighbouring colony from
acquiring property in the legislating colony, or only allow him to acquire it under adverse
conditions? But why not? The whole control of the lands of the state is left in that state. The
state can impose what conditions it pleases-conditions of residence, or anything else-and I
am not aware that a state has surrendered the control of the particular administration of
its own lands, or of anything that is left to it for the exercise of its power and the
administration of its affairs. I would much prefer, if there is to be a clause introduced, to have
the amendment suggested by Tasmania, subject to one modification, omitting the words-"and all
other persons owing allegiance to the Queen." That would re-open the whole question as to
whether an alien, not admitted to the citizenship here-a person who, under the provisions
with regard to immigration, is prohibited from entering our territory, or is only allowed to
enter it under certain conditions-would be given the same privileges and immunities as a
citizen of the Commonwealth. Those words, it seems to me, should come out, and we should
confine the operation of this amendment so as to secure the rights of citizenship to the citizens
of the Commonwealth. I think, therefore, that with some modification the amendment suggested
by Tasmania would be a proper one to adopt.
And
Mr. KINGSTON.-I say we are creating a Commonwealth in which I hope there will be a
federal citizenship, and I shall be glad indeed to see the powers of the Federal Parliament
enlarged to enable that body to legislate, not only with reference to naturalization and
aliens, but also with reference to the rights and privileges of federal citizenship.

30

An HONORABLE: MEMBER.-What is the meaning of citizenship?

Mr. KINGSTON.-It is not defined here, but it ought to be defined in the Constitution, or
else we ought to give power to the Federal Parliament to define it. And, after having
defined what shall constitute Australian citizenship for the purposes of the
Commonwealth, we ought to carefully prevent any state legislating in such a way as to
deprive any citizen of the Commonwealth of any privileges which citizenship of the
Commonwealth confers within its borders. I have the honour to come from a state which
has already adopted a system of absentee taxation, but I do not hesitate to say, speaking on
my own individual account, that I think the continuance of that system, applied to citizens
of the Commonwealth resident in other states of the Commonwealth, would be a great
mistake and an unfederal act.

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40

Mr. HIGGINS.-If a rich South Australian went to live in Tasmania, on account of the
cool climate, would you allow the imposition of the absentee tax on him?
45

Mr. KINGSTON.-I do not think it ought to be imposed on him.

And
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21
An HONORABLE MEMBER.-How would that affect a tax on absentees?

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15

Mr. WISE.-It would give full power to impose a tax on absentees outside the
Commonwealth, but not within it. There [start page 675] should be no absentees within the
Commonwealth after federation. I do not see, how, after federation, a man can be regarded
as an absentee at Sydney when he lives in Melbourne. If we are to have federation, the idea
that when a man moves from one part of the Commonwealth into another he becomes an
absentee, or ceases to be an Australian, is one that must vanish, and we ought, as far as our
Constitution will permit us, to do everything to make it vanish quickly. It is a survival of
the old idea that there is a distinctive citizenship in a Victorian, and a distinctive
citizenship in a New South Wales man. That is the idea which I am endeavouring to
destroy by supporting the amendment of Tasmania, that Australian citizenship, and that
alone, shall be recognised in every part of the Federation. The way to secure that is to
provide in the clearest terms, as Tasmania suggests, that no local Parliament can have any
authority to, in any way, abridge the citizenship of an Australian.
Mr. REID (New South Wales).-I really think that the constant attempts which are being
made to interfere with the rights of the states, in matters which are left to them expressly, is
becoming quite alarming. There are a number of general words already in this Constitution
which, I fear, may be used so as to almost destroy the independent powers of legislation of
the states, with reference to every conceivable subject that they have left to them.

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For the above, and what already has been placed before on file in previous proceedings the issue
therefore is that if the Commonwealth of Australia holds that Australian citizenship purports
some kind of Australian nationality then this is ULTRA VIRES, as no such constitutional
powers were granted by the Imperial parliament and neither by any Section 128 referendum.
Section 51(xix) only provides for naturalization of aliens to be made British nationals.
The problem with this is that if the Australian Citizenship Act 1948 purports to be Australian
nationality then this likewise is unconstitutional and so ULTRA VIRES.
If therefore the Constitution of the State of Victoria relies upon the Australian Citizenship Act
1948 as to provide State franchise then this is also ULTRA VIRES, as an the State cannot rely
upon an unconstitutional enactment.
If the Australian Citizenship Act 1948 is purporting to grant citizenship as to refer to political
rights then that too would be unconstitutional, and so ULTRA VIRES.

40

If the AUSTRALIAN CITIZENSHIP referred to in the Australian Citizenship Act 1948

in fact is and remains to mean that a person is naturalized to be a British national, then in any
case it is ULTRA VIRES where it purports to define/declare the nationality of any person born
within the States, as any subject born within the realm of the King (Queen) is automatically a
national and so a subject of the British Crown. Any reliance by the State Constitution to allow for
franchise based upon a unconstitutional provision in that regard also remains ULTRA VIRES.

45

It ought to be kept in mind that in 1948 most likely no one really has a slightest understanding
and perception as to what was constitutionally appropriate. Whatever was enacted at the time by
ill conceived perceptions cannot make it lawful. It remains ULTRA VIRES for so far it is
beyond constitutional powers or exceeding constitutional powers.

50

As the Framers of the Constitution made clear that the Commonwealth of Australia could put a
disability to any alien upon naturalization to obtain citizenship, this by legislation any race is
subjected to provided within subsection 51(xxvi) of the Constitution or otherwise being limited,
such as that a person naturalized cannot obtain citizenship within, say, 2 years of naturalization,

35

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22
then a Certificate of Australian Citizenship cannot be granted to anyone. For example, since
the 1967 referendum that provides for Aboriginals to be dealt with under the race provisions of
Section 51(xxvi) constitutionally not a single Aboriginal can have citizenship involving franchise
as they are constitutionally barred once the Commonwealth of Australia enacted legislation
within its race constitutional powers.
Likewise, while the race powers did not give the Commonwealth of Australia any powers to
legislate against the general community the fact that the Commonwealth of Australia
nevertheless did so and so with the Racial Discrimination Act, by this in effect it also robbed
each and every citizen of their right to have franchise and indeed be a Member of Parliament!

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Because Australian citizenship, albeit wrongly, has been the core requirement of numerous
positions, such as to be a judicial officer, to be a police officer, to be a Member of Parliament,
etc, it is having horrific consequences that follows from what currently is so wrongly applied.
Still, the rule of law, so constitutional law, must be applied in a proper manner, and not some
Banana Republic kind of system.
The Commonwealth Electoral Act 1918 also relies upon the unconstitutional declaration/
definition of Australian citizenship as to provide for franchise where in fact franchise in the
Commonwealth of Australia is obtained only by having obtained State franchise through State
citizenship.
What is missing is the States legislation to provide for State citizenship and by this for
franchise!
END QUOTE 19-7-2006 ADDRESS TO THE COURT Part 2 Mr G. H. Schorel-Hlavka.County Court of
Victoria proceedings Case numbers T01567737 & Q10897630

It must be clear that even so I didnt quote all the submissions and the length thereof that was
litigated before the County Court of Victoria nevertheless the mere fact that neither the
commonwealth of Australia and neither any Attorney-General of a State/Territory despite having
been served with an s78B NOTICE OF CONSTITUTIONAL MATTERS challenged any of
my submission
Therefore, having been successful in the litigation I am well entitled to rely upon this.

35

It cannot be claimed that the Framers of the Constitution never envisaged Australian
citizenship as clearly I have quoted above how often they referred to this term.
It should be clear that at least to my understanding no one ever so comprehensively submitted
matters to a court as to what citizenship and Australian citizenship stands for.

40

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Judgments of the High Court of Australia as to the constitution is limited to interpret the
intentions of the Framers of the Constitution and so the constitution itself, Sue v Hill was in total
contradiction to this and if we were to accept (not that I concede to it) then the High Court of
Australia could declare we are part of Iran, the USA, India and somehow whatever nonsense it
comes up with will override the constitution.
.
That cannot be rights and neither is.
.
Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE
Mr. WISE.-If the Federal Parliament chose to legislate upon, say, the education question-and the
Constitution gives it no power to legislate in regard to that question-the Ministers for the time being in each
state might say-"We are favorable to this law, because we shall get 100,000 a year, or so much a year, from
the Federal Government as a subsidy for our schools," and thus they might wink at a violation of the
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23

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Constitution, while no one could complain. If this is to be allowed, why should we have these elaborate
provisions for the amendment of the Constitution? Why should we not say that the Constitution may
be amended in any way that the Ministries of the several colonies may unanimously agree? Why have
this provision for a referendum? Why consult the people at all? Why not leave this matter to the
Ministers of the day? But the proposal has a more serious aspect, and for that reason only I will ask
permission to occupy a few minutes in discussing it. Not that I believe that it will be carried, but I think it
is an echo of a widespread misapprehension which prevails outside as to the duties and functions of the
Supreme Court. It very often seems hard to a layman that that which has been enacted by Parliament should
be declared to be illegal by a Supreme Court when the statute is called into question during litigation between
two citizens. It is hard, but like everything else in politics, it is a choice of evils. The question is: Whether it
would not be of much greater disadvantage to the whole community to bring in the Supreme Court as an
interpreter of the Constitution before any precise case was taken before it, than it is to leave the individual to
suffer the hardship of finding that the Act upon which he relied was really invalid? I will not use my own
language in explaining the position, but, to have it put upon record, I should like to quote a passage which
occurs on pages 154 and 155 of Dicey's Law of the Constitution. After pointing out that the American
Supreme Court exists to interpret the Constitution, and to see that effect is given to its provisions, the writer
goes on to say thatThe power, moreover, of the courts, which maintains the Articles of the Constitution as the law of the
land, and thereby keeps each authority within its proper sphere, is exerted with an ease and a
regularity which has astonished and perplexed continental critics. The explanation is that the Judges of
the United States control the action of the Constitution, but they perform merely judicial functions,
since they never decide anything but the cases before them. It is natural to say that the Supreme Court
pronounces Acts of Congress invalid, but in fact this is not so. The court never directly pronounces any
opinion whatever upon an Act of Congress.
[start page 1687]
What the court does do is simply to determine A. is or is not entitled to recover judgment against X.;
but in determining that case the court may decide that any Act of Congress is not to be taken into
account, since it is an Act beyond the constitutional powers of Congress.

30

If any one thinks this is a distinction without a difference he shows some ignorance of politics, and does not
understand how much the authority of a court is increased by confining its action to purely judicial business.
In a book prepared by you, sir, entitled A Manual of Reference for the use of Members of the National
Australasian Convention, to which frequent reference has been made, the matter is further dealt with. You
say, at page 126, in words that I would like to adopt as part of my argument:-

35

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55

No doubt the power given is very great, but it is exercised in a manner and by a body which affords
the least possible chance of friction and quarrels between the central and the provincial governments.
A veto by the central authority has to be exercised at a time when the public attention of the provincial
electors is directed to the matter; at a time when, perhaps, party spirit runs high, when angry passions
pervade both factions, and when the subject-matter is invested with an importance which is not
intrinsic, whereas a declaration by a court that the statute is invalid is withdrawn from the sphere of
politics. Each individual and each state looks upon it that such declaration is given only in pursuance of
the Constitution. Public attention is probably directed to other matters, and the question has, in many
cases, shrunk into its native insignificance; and "it is to the interest of every man who wishes the
Federal Constitution to be observed that the judgments of the federal tribunals should be respected,
and they take it that the courts are the protectors of the federal compact, and that the federal compact
is, in the long run, the guarantee of the rights of the separate state."
If the proposal of the honorable member (Mr. Gordon) was carried into effect-though of that, I think, there is
not the slightest chance-it would follow that any person who was aggrieved by an unconstitutional enactment
would have to persuade the Attorney-General of the state or of the Commonwealth, as the case might be, to in
some way set the law in motion to ascertain the legality of the enactment, If the enactment was one which
affected a matter exciting strong party feeling, the result would be that the abstract question of its
validity would have to be argued before the court at a time when public feeling was excited, although it
would be of the utmost importance that the decision of the court should be entirely free from all
suspicion of political bias. Then, too, the enactment might be valid in parts and invalid in other parts,
or it might be impossible to interpret it in the abstract. It is impossible to foresee the bearing of a
statute upon all possible cases, and it is only when a case comes for determination before a court that
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24

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the court is able to say that in that particular case the statute does or does not afford protection to the
citizen who has relied upon it. The honorable member's proposal would remove at once the greatest of all
safeguards to the impartiality and usefulness of the Federal Court, by taking away from it its right to deal
with matters which are brought, as lawyers term it, to a distinct issue, and with precise and definite points, in
regard to which the full bearing of every word of the judgment could be appreciated? Instead of the court
being able to determine the legality of an enactment in its bearing upon any particular case, there
would be considerations introduced which were utterly foreign to the atmosphere of the tribunal, and
that would seriously impair the public confidence in a court which, with us, as in America, will, I
believe, prove to be the ultimate protector of the liberties of the people. Then, too, the amendment is in its
form so complicated that its practical working will be impossible. The honorable member said truly that the
Attorney-General constantly intervenes now. But he intervenes at the expense of the individual. The
individual presents his case, and gives a guarantee for costs. Under this proposal all that would happen would
be that the individual who wanted to assert [start page 1688] his right would have a barrier placed between
him and the obtaining of justice. He would have to satisfy the Attorney-General for the time being that he
would be able to pay the costs of any action, and he would have to bring sufficient political pressure to bear
upon that officer to get him to move in the case, and finally he would be left to contest the matter in his own
interests and in his own name. The result would be that the rights and liberties of every citizen in the
community would be placed at the mercy of a chance parliamentary majority.
Mr. GORDON.-That is the position now-the rights and liberties of every individual are at the mercy of a
parliamentary majority.
Mr. WISE.-The honorable member is now speaking of rights in respect to legislation. If the Parliament of
South Australia were to pass a law contravening the Merchant Shipping Act
Mr. GORDON.-I am not speaking of Imperial legislation.

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35

Mr. WISE.-Suppose the Parliament of South Australia wanted to get rid of the Plimsoll Mark Act-even
though there were a majority it would be invalid, but according to the honorable member, when, we have here
a case exactly analogous, if the Constitution limits the power of the state, and enacts that certain powers shall
belong exclusively to the Commonwealth Parliament, and that if the state deals with them it invades the
authority of the Commonwealth Parliament, the individual is to have no rights unless he can persuade the
Government of the day to take up his case. It is in the interests of the poorer and uninfluential classes of
the community, it is. in the interests of the minority, that this amendment should be rejected, because it
places an obstacle in the way of obtaining that justice which ought to be free to every individual in the
community.
Mr. HIGGINS (Victoria).-I should like to add my protest against this new clause. I am bound to say
something, because the honorable member (Mr. Gordon) says it is only the conservative and timid lawyers
who would venture to oppose this proposal.
Mr. GORDON.-I did not say that. I said as a rule the legal profession is, according to Herbert Spencer, a
timid and conservative class.

40

45

Mr. HIGGINS.-That may be so, and if the honorable member says he did not make that statement it is all
right. Anyhow, I thought he said that only conservative and timid lawyers would oppose this clause. There is
no doubt the intention of the honorable member is excellent. He wants to diminish litigation. If he can show
that this will diminish litigation to any material extent, and, at the same time, will not involve us in a great
many dangers to our liberties, I will go with him, but he has not shown anything of the sort. As Mr. Wise has
shown, it will throw an unpopular minority into the power of a chance Ministry of the day. We must see today that the rights of individuals, even unpopular individuals, are preserved in the Constitution. I think
Sir John Forrest said that I personally had not got sufficient respect for the rights of individuals.
Sir JOHN FORREST.-No.
Mr. HIGGINS.-Do I understand him to refer merely to private property?
Sir JOHN FORREST.-Not the same respect as I have.

50

Mr. HIGGINS.-I understood the honorable member to put himself on the very highest pedestal, and by
contrast to put me on the very lowest. At all events, I feel that if this were carried, an unpopular individual, to
obtain his rights and liberties, would have to go cap in hand to and be at the mercy of the Government of the
day. I was thinking of the pig-tail case which occurred in California, and which I alluded to some time
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10

15

20

ago, where an abominably unjust law was passed against Chinamen. It was passed to persecute them in
regard to their pig-tails, which they [start page 1689] regard with exceptional reverence. That law was
declared to be unconstitutional as a law passed by a state. I ask honorable members to consider the great
difficulty there would be in getting the Federal Congress or Federal Executive to interfere in the case of
Chinamen, so as to enforce their rights in such a case. There was an exceptional law which should never have
been passed. It was distinctly a persecuting law. Any practical politician would see the great difficulty there
would be in appealing to a Federal Executive, especially if there was an election approaching, to enforce the
just rights of Chinamen in such a case. The same thing might happen supposing a federal law were
passed which was outside the Constitution. Supposing that a majority of the state concerned happened
to regard the man as unpopular supposing a law were passed that no one bearing the name of Jones
should be admitted into the state of Virginia, the law might be directed against a certain person named
Jones, and it would be unconstitutional, and Jones could not enforce his rights to go into that state. I
ask, is he to be compelled to go cap in hand to the Attorney-General of the state of Virginia to enforce his
rights? I feel that, with the very best intentions my honorable friend is making the gravest of mistakes. So far
as regards the main purport of the amendment, it would mean this: That you could only get a point of this sort
decided by having a state or Commonwealth intervening as a party. You would turn judicial questions into
political questions. You would proclaim-"Here is a question between the state and the Commonwealth;
here is a political question"; and you would make the Judges partisans. It is one of the great
advantages of private persons being able to raise these points, and not the states or the Commonwealth,
that you keep the judicial bench free from the taint of political partisanship.
END QUOTE
.

25

Hansard 8-2-1898 Constitution Convention Debates

QUOTE Mr. OCONNOR (New South Wales).Surely every person who has the suffrage-the right to vote within the Commonwealth-and who lives
within the Commonwealth, is a citizen of the Commonwealth, and entitled to all its privileges, including
the right to take part as the Commonwealth provides in the framing of the laws.
END QUOTE
.

30

35

Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE Mr. CARRUTHERS (New South Wales).It does not require a majority of the states to insist that the constitution shall be obeyed, because a
majority of the states cannot by resolution infringe the constitution.
END QUOTE
.

40

45

50

55

60

Hansard 23-3-1897 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE Mr. BARTON:
I believe that, with certain alterations in the financial provisions, that Bill is a measure under which the
colonies could even now safely federate. Not that I say it is the best Bill that could be framed; but I do
believe it is a well-devised and well-drawn Constitution, and a Constitution [start page 11] under which a
free people-making such amendments from time to time as necessity will require, and the powers
given by the Constitution will allow-might live in perfect freedom and with perfect security.
END QUOTE
.
Hansard 8-2-1898 Constitution Convention Debates
QUOTE Mr. BARTON.Under a Constitution like this, the withholding of a power from the
Commonwealth is a prohibition against the exercise of such a power.
END QUOTE
.
Hansard 2-3-1898 Constitution Convention Debates
QUOTE
Mr. HIGGINS.-The particular danger is this: That we do not want to give to
the Commonwealth powers which ought to be left to the states. The point is that
we are not going to make the Commonwealth a kind of social and religious power
over us.
END QUOTE
.
HANSARD 1-3-1898 Constitution Convention Debates
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26

10

QUOTE Mr. GORDON.The court may say-"It is a good law, but as it technically infringes on
the Constitution we will have to wipe it out."
END QUOTE
And
HANSARD 1-3-1898 Constitution Convention Debates
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 is
necessary or incidental to a power given.
END QUOTE

.
Hansard 8-3-1898 Constitution Convention Debates
QUOTE

15

Sir JOHN DOWNER.-Now it is coming out. The Constitution is made for the people and the states on
terms that are just to both.
Mr. DEAKIN.-It is made for the lawyers under this clause.

20

25

30

35

40

45

50

55

Sir JOHN DOWNER.-I do not think so. If you say "Trust the Parliament," no Constitution is required
at all; it can simply be provided that a certain number of gentlemen shall be elected, and meet together, and,
without limitation, do what they like. Victoria would not agree to that. But there is a desire to draw the very
life-blood of the Constitution, so far as the states are concerned, by this insidious amendment, which would
give the Houses authority from time to time to put different constructions on this most important part
of the Constitution. I hope we will do as we have done in many instances before, in matters that have been
much debated-adhere to the decision we have already arrived at.
END QUOTE
Hansard 9-3-1891 Constitution convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE
Mr. FITZGERALD:
Another case I understood the hon. member, Sir George Grey, to put was that be favoured the
appointment of the governor-general of the future dominion of Australia being a colonial
appointment. But as long as this country is united to the Crown of England-and I hope that it is a
very long day off indeed when it shall cease to be so-I maintain that the governor-general of the
future dominion of Australia must be the appointee of her Majesty the Queen, our sovereign, who is
the apex of that structure, and whose name we revere and respect in this colony equally as in any
other [start page 165] part of her Majesty's dominions.
END QUOTE
Hansard 12-3-1891 Constitution convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE Mr. ADYE DOUGLAS:
The governor-general must be the representative of the Queen by direct appointment from her
Majesty, and that being the case, the government will be carried on in federated Australia in the way
usually adopted now in the different colonies.
END QUOTE
Hansard 12-3-1891 Constitution convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE Mr. ADYE DOUGLAS:
The governor-general must be the representative of the Queen by direct appointment from her
Majesty, and that being the case, the government will be carried on in federated Australia in the way
usually adopted now in the different colonies.
END QUOTE

It must be clear a lawful appointed Governor-General is only if so commissioned by Her Majesty

Queen Elizabeth II Queen of the United Kingdom.
.
And consider:
.

60

Hansard 24-3-1897 Constitution Convention Debates

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27
QUOTE

10

15

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25

30

35

Sir GEORGE TURNER: It would never do to allow in this Federal Parliament that those representatives
who are elected upon the most liberal franchise possible should be outvoted by those who would be elected
by a very limited franchise indeed. As this may fairly be regarded as the National House, representing the
people of the various States as a nation, we ought to have uniformity in the franchise. We must leave it to the
Federal Parliament to say what the franchise should be. At the same time, as some colonies have given the
right of voting to those who have not that right in other colonies, it would be unfair and inequitable to take
from any who have the right, and therefore whatever uniformity is determined upon we shall have to
allow the innovation that no person, man or woman, who has the right to vote shall be deprived of
exercising that right, even so far as the elections to the Federal Parliament are concerned. I would go
the length of saying that everyone who has the right in the various colonies, if they desire to exercise their
franchise, should have the opportunity of doing so.
END QUOTE

Therefore it is only when an elector desire to vote that he/she can do so. No compulsory
voting!
Only the State that granted citizenship can deny a person such citizenship (voting right) but not
the persons birth rights. The Commonwealth of Australia can naturalise aliens and as such can
also remove this naturalisation in certain circumstances, but as s41 of the constitution states:
Commonwealth of Australia Constitution Act 1900 (UK)
QUOTE
41 Right of electors of States
No adult person who has or acquires a right to vote at elections for the more numerous House of the
Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from
voting at elections for either House of the Parliament of the Commonwealth.
END QUOTE

IT MUST BE CLEAR THAT THE C OMMONWEALTH B Y NO LAW CAN DENY A

BIRTHRIGHT OF ANY CITIZEN BUT CAN DEAL WITH ALIENS WHO HAVE
SETTLED IN THE COMMONWEALTH OF AUSTRALIA AND MAY BE GUILTY OF
SUCH
CONDUCT
WHICH
WARRANTS
THE
CANCELLATION
OF
NATURALIZATION.
Having stated this the Framers of the Constitution did make clear:
.

40

45

HANSARD 12-4-1897 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE Mr. BARTON:
It is provided that instead of, as before, the Parliament having power to constitute a judiciary, there
shall be a Supreme Court, to be called the High Court of Australia, as a part of the Constitution-that I
believe to be an improvement-and other courts which the Parliament may from time to time create or
invest with federal jurisdiction.
END QUOTE
.

HANSARD 12-4-1897 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE Mr. BARTON:
And then there is this proviso:

50

Provided that no fact tried by a jury shall be otherwise re-examined in the High Court than according
to the rules of the common law.
END QUOTE

55

Hansard 31-1-1898 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE Mr. SOLOMON.We shall not only look to the Federal Judiciary for the protection of our interests, but also for the just
interpretation of the Constitution:
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28
END QUOTE

10

15

HANSARD 1-4-1891 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE
Mr. HIGGINS.It is one of the great advantages of private persons being able to raise these points, and not the states or
the Commonwealth, that you keep the judicial bench free from the taint of political partisanship.
END QUOTE
Hansard 2-8-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian
Convention)
QUOTE
Clause 113.-Every state shall make provision for the detention and punishment in its prisons of persons
accused or convicted of offences against the laws of the Commonwealth and the Parliament of the
Commonwealth, may make laws to give effect to this provision.
Mr. GLYNN (South Australia).-I think the words "or detention" should be inserted after "the detention."
At present the clause reads-"The state shall make-provision for the detention and punishment in its prisons of
persons accused or convicted," &c. We do not want to punish "persons accused." I beg to moveThat the words "or detention" be inserted after "detention."

20

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30

The clause will then read-"For the detention or detention and punishment," &c.
Mr. BARTON (New South Wales).-I do not think that amendment would quite do. I could understand the
clause being amended so as to make it read-"detention or punishment of persons accused or convicted." The
object of the clause, as it stands, is to keep together the terms "accused or convicted," so, that the relation,
both of accusation and conviction, to the laws of the Commonwealth may be made clear. The clause only
applies to accusations or convictions in respect of laws of the Commonwealth, and, therefore, these words
"accused or convicted" are kept together just before the words "offences against the laws of the
Commonwealth." I think that if my honorable [start page 693] friend (Mr. Glynn) would alter his amendment
so as to make it read "detention or punishment," there can be no misreading of the clause.
Sir JOHN DOWNER (South Australia).-I think the words should stand as they are. You have to make
provision for both things.
Mr. GLYNN.-Not for the punishment of accused persons.
Sir JOHN DOWNER.-Provision has to be made both for detention and punishment. I think the clause is
clear enough as it stands at present.

35

40

45

50

Mr. SYMON (South Australia).-I believe that my honorable friend's (Mr. Glynn's) feeling is that, by
leaving the words as they are, the clause might be interpreted to enable the federal authorities to demand from
the state the detention and punishment of persons who were not convicted, but I do not apprehend that
there is the slightest difficulty on that score. I do not think any court would interpret the words to mean
the punishment of a person accused and not convicted.
Mr. GLYNN (South Australia).-My contention is that, as the clause stands, the words are to be read
conjunctively in relation to the word "accused." The clause says that each state shall make provision for the
detention and punishment of persons accused or convicted. You must read the word "punishment" in relation
to "accused," as well as to "convicted." The clause should read-"For the detention, or detention and
punishment, as the case may be, of persons accused or convicted," &c.
Sir EDWARD BRADDON (Tasmania).-I think the clause might be amended to get out of the difficulty
which has been pointed out. As it stands at present, it provides that the state shall make provision for the
detention and punishment in its prisons of persons accused or convicted. Now, evidently, the detention is for
those who have not yet been convicted, and the punishment is for those who have been convicted, and I
think that those two classes ought to be separated.
Mr. BARTON (New South Wales).-I have an amendment which I think will meet the case, and enable us
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29
That the clause be amended by striking out the words after "detention" down to "Commonwealth," and
substituting in lieu thereof the words "in its prisons of persons accused of offences against the laws of the
Commonwealth, and the punishment of persons convicted of such offences."

Mr. GLYNN (South Australia).-I would point out that, under the clause as now proposed to be
amended, a state might make provision for whipping persons convicted, but not for detaining them in
prison.
Mr. ISAACS.-Detention may be part of the punishment.
Mr. GLYNN.-But the punishment may not be detention, it may be flagellation. Are you going to allow a
state to make provision for the character of the punishment for an offence against the Commonwealth?

10

Mr. Barton's amendment was agreed to.

END QUOTE
Hansard 8-2-1898 Constitution Convention Debates
QUOTE

15

Mr. OCONNOR.-No, it would not; and, as an honorable member reminds me, there is a decision on the
point. All that is intended is that there shall be some process of law by which the parties accused must be
heard.
Mr. HIGGINS.-Both sides heard.

20

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Mr. OCONNOR.-Yes; and the process of law within that principle may be [start page 689] anything
the state thinks fit. This provision simply assures that there shall be some form by which a person
accused will have an opportunity of stating his case before being deprived of his liberty. Is not that a
first principle in criminal law now? I cannot understand any one objecting to this proposal.
END QUOTE

Hence, I view the Commonwealth of Australia cannot strip a person of nationality , that is those
who were naturalized, unless this is pursued by law and determined before a Court of competent
jurisdiction. As is shown a person who was to be stripped of his/her adopted country nationality
could then be placed in a detention c enter awaiting deportation, but I view not while holding his
nationality, which is incorrectly referred to as Australian citizenship
While often there are statements (by judges) they are the 3rd branch of the government a bias
and unconstitutional claim) as to the 3 branches of Government, in my view one ought to speak
of the 4 branched of nationhood.
1. The Parliament
2. The Federal Executives
3. Judiciary
4. Inter-State Commission.
I look forwards to your detailed positive response.
This document is not intended and neither must be perceived to refer to all details/issues.

MAY JUSTICE ALWAYS PREVAIL

Our name is our motto!)

(
45

Awaiting your response,

G. H. Schorel-Hlavka O. W. B. (Friends call me Gerrit)

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