ISSUE: 20171211- Re: Sam Dastyari, QUALIFICATION, etc & the constitution

As a CONSTITUTIONALIST my concern is the true meaning and application of the constitution.

As shown below:
There is nothing in this clause which enables the Parliament of the Federation to alter the qualification
of electors to the Senate unless by an alteration of the Constitution.

Yet, reality is that the CEA1918 unconstitutionally dictates for an elector to have a certain
number of votes and pay a deposit which I view violates the constitution.
It also should be understood that the Court of Disputed Returns is a political court acting for and
on behalf of the Parliament in regard of disputed elections but cannot act in my view to deal with
s44 issues because QUALIFICATIONS are a matter of the Parliament. If the Parliament refers
the matter to the High court of Australia as to an s44 issue then the High Court of Australia
cannot sit as a Court of Disputed Return but must sit as the High Court of Australia.
In my view Member of Parliament Sam Dastyari can be ousted from the Federal Parliament by a
vote of the House in which he is elected to.
Commonwealth of Australia Constitution Act 1900 (UK)
QUOTE
44 Disqualification
Any person who:
(i) is under any acknowledgment of allegiance, obedience, or
adherence to a foreign power, or is a subject or a citizen or
entitled to the rights or privileges of a subject or a citizen of a
foreign power; or
(ii) is attainted of treason, or has been convicted and is under
sentence, or subject to be sentenced, for any offence
punishable under the law of the Commonwealth or of a State
by imprisonment for one year or longer; or
END QUOTE

It is not just DUAL NATIONALITY that can disqualify a person from holding a seat in the
Parliament, but it also can be when the person is deemed to be under acknowledgement of
allegiance or adherence to a foreign power. If as such the majority of Members of the House hold
that Sam Dastyari is deemed to act for and on behalf of a foreign power then that House I view
is well entitled to oust him from the House, and have a by-election for a more suitable person to
take the seat. The relevant House ( in this case the Senate) could refer the matter to the High
Court of Australia but not to the Court of disputed Returns but the High Court of Australia sitting
as the High Court of Australia as to determine if in its view Sam Dastyari in anyway might be in
conflict with s44.
Commonwealth of Australia Constitution Act 1900 (UK)
QUOTE
76 Additional original jurisdiction
The Parliament may make laws conferring original jurisdiction on
the High Court in any matter:
(i) arising under this Constitution, or involving its interpretation;
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 (ii) arising under any laws made by the Parliament;
(iii) of Admiralty and maritime jurisdiction;
(iv) relating to the same subject-matter claimed under the laws of
different States.
END QUOTE

It should be understood that the qualification of a candidate for an election rest with the person to
be an elector. No more. S44 is not part of this at all. S44 comes into play if a successful
candidate at the time of being sworn in for a seat then is in violation of s44. After all, a person
cannot be expected to drastically take steps and yet never be elected. I have written ab out this in
the past and so no need to repeat it all. Safe to say, the dispute about an election is not if the
person is within s44 entitled to take up a seat but rather to deal with the process of the election
itself, such as the incorrect or missing ballot papers, etc.
As I have made clear the Commonwealth has absolutely no constitutional powers to have and
create any Commonwealth electoral Roll as the powers of any person to be an elector within
section 41 is based upon being a state elector. All the Commonwealth is permitted to do is to
define the age of being an ADULT. As I proved in court on 19 July 2006 that compulsory voting
is unconstitutional.
This entire citizenship saga is another disaster that could have been avoided had there been a
compliance with the 4 December 2002 court order for the citizenship issue to be heard and
determine before the High Court of Australia in AEC v Schorel-Hlavka.
In my view the notes to the Constitution that the Commonwealth dictate certain matters because
the State legislated for this is and remains unconstitutional as it requires a REFERENDUM to
amend any part of the constitution. Politicians can continue this utter mess and well it will last so
long and then they may just regret not having grabbed the opportunity to appropriately address
matters while they could.
Nothing in this writing must be perceived that I seek to imply that Sam Dastyari somehow may
have acted inappropriately, rather that I write on the bases of numerous reports that implies he
did so but in the end it is in the hands of the relevant House (the Senate in this case) what it
determines having considered all relevant details.

I below have some quotations to get some general understanding about matters.

Hansard 2-2-1898 Constitution Convention Debates

QUOTE Mr. DEAKIN (Victoria).-
The record of these debates may fairly be expected to be widely read, and the observations to which I
allude might otherwise lead to a certain amount of misconception.
END QUOTE

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 15-2-1898 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE

Mr. HIGGINS.-According to one suggestion, you must go to the Parliament, [start page 984] but in most
cases, if there is any question of policy involved, the consent of the Governor-General in Council will be
discussed in Parliament. It will be raised on motion in Parliament, and it will be a matter for the

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 parliamentary majority to support him or not. Constitutionally, he will not give his consent unless he is
in the majority.

Mr. REID.-What will be the position if the Governor-General in Council approves and the Parliament
disapproves?

Mr. HIGGINS.-I apprehend the effect will be that the Federal Parliament will be able to pass a law which
will over-ride this particular grant.

Mr. REID.-That is not the object of the amendment.

Mr. SYMON.-Would not the effect of your amendment be to make the Federal High Court sit in
judgment on an executive act of the Governor-General in Council?

Mr. HIGGINS.-With all respect, no. The Governor-General in Council, as the honorable member
knows as well as any one, has to obey the law as well as every one else.

Mr. SYMON.-But suppose the Governor-General in Council grants the bonus, and suppose its operation
derogates from freedom of trade, then the Federal High Court will sit in judgment on an act of the Governor-
General in Council which involves a question of policy.

Mr. HIGGINS.-Does not the honorable member recognise that even the legislation of the Federal
Parliament is subject to the decision of the Federal High Court?

Mr. SYMON.-But not a question of executive administrative policy.

Mr. HIGGINS.-The Federal High Court goes still further than that. It has the function of deciding
whether the Acts of the Parliament are valid or not, and why should it not have the function of
deciding whether the acts of the Ministry are valid or not?

Mr. SYMON.-That was not the intention in determining the functions of the Federal High Court.

Mr. HIGGINS.-Our British system is that every official under Her Majesty is amenable to the law-
that everybody is under the law.

Mr. SYMON.-But this is a question of Ministerial responsibility.

Mr. HIGGINS.-Of course it is; but supposing the Ministry were to consent to a bonus or bounty which
interfered with freedom of trade, then the Federal High Court could be asked to interfere, and it therefore has
the ultimate decision of the matter. If the court decided against a bonus or bounty, I rather think that the
money would have to be refunded.

Mr. SYMON.-Supposing the House of Representatives approves of the action of the Ministry, and the
Federal High Court dissents?

Mr. HIGGINS.-Well, as the Federal High Court has to determine, in case of dispute, whether the Acts of
the Parliament are wrong, so the court has to decide whether the acts of the Ministry are wrong. All this
bringing in of the Federal High Court-I do not say in the mind of the honorable member, but in the minds of
several honorable members-is with a view to make this particular proposal unpopular. I do not want to drag in
the Federal High Court.

Mr. SYMON.-But can you help it?

Mr. HIGGINS.-I say that, in 99 out of 100 cases, the Federal High Court, will not be appealed to; but
if you ask me what body is to have the ultimate determination of the matter, I say the Federal High
Court must be that body.

END QUOTE

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Hansard 15-4-1897 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE

Mr. O'CONNOR: There are only two limitations to the Subjects which may come under the head of
"manner of choosing." One is that the member is to be chosen by the people of the States as one
electorate. That cannot be altered. The other is that the qualification shall be as stated for the House of
Representatives, and one man shall have one vote. Those two things are expressly provided for, and
therefore the "manner" cannot touch them. They really put the very basis upon which the Senate is elected.

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

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

Mr. BARTON: It would be perfectly open, for instance, for every Parliament to provide for the Hare
system of election. The tenth - clause provides that the Parliament may, in the first instance, prescribe an
uniform manner applicable to every State, of choosing members for the Senate; but, subject, to such
provision, the Parliament of each State may decide how to choose members of that body. It reserves
such a power to the Parliaments of the States. But there is reserved to the Federal Parliament a power of
control, which might well be exercised, in the case of certain difficulties or misdeeds arising, to take the
matter into its hands.

Mr. SYMON: I quite agree with Mr. Barton, that if a power is not taken away from the State it
remains with it. But I doubt very much whether this provision in the first part of clause 10 would cover such
an alteration as is implied in the introduction of the Hare system of voting. The other name for it is
proportional representation, and I doubt whether the manner of choosing the members of the Senate would
cover the alteration, either for a Federal Parliament or a State Parliament. My idea is that section is a limita-
[start page 674] tion simply with regard to the manner of election, narrowly and technically understood.
There is implied, first the creation of a constituency, and second, the creation of the voters by means of the
qualification. which is also declared in the Constitution as that applicable to the more numerous Legislature
in the State. And it leaves untouched everything else. Therefore, if there were to be an alteration in the
way of introducing proportional representation, that power would remain with the States and be
exercised by them. There is nothing in this clause which enables the Parliament of the Federation to
alter the qualification of electors to the Senate unless by an alteration of the Constitution. Proportional
representation may or may not-I do not know whether it would or not-alter the principle of representation. If
it would, it would, therefore, be untouched by a provision merely dealing with the manner of choosing the
members of the Senate. I think, therefore, that the clause had better be left as it is, the result being, in my
view, that, whilst the Parliament of the Commonwealth may make aws which would dominate as to the
manner of choosing the members of the Senate, it would be for the States to deal with such a matter as is
involved in the Hare system of voting. It establishes a different system of representation under the name of
proportional representation.

END QUOTE

HANSARD 9-2-1898 Constitution Convention Debates

QUOTE
Mr. HIGGINS.-No, because the Constitution is not passed by the Parliament.
END QUOTE

Hansard 21-9-1897 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE Mr. HIGGINS:
Section 15 says the qualifications of a senator are to be those of a member of the house of representatives.
Section 31 says "until the parliament otherwise provides the qualification of a member of the house of
representatives shall be as follows":-I take it that under these words it would be competent for the federal
parliament to make provision for the qualification of a member of the house of repre- [start page 1002]
sentatives to be that he is not a member of one of the state houses. That is a matter for the Drafting
Committee. As we have passed section 31, I do not propose an amendment. I simply intimate that, in my
opinion it is worth consideration whether, under section 31, it is not competent for the federal parliament
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 to enact that one of the qualifications of a member of either house shall be that he does not hold office
in any other colonial parliament. There must be a serious dislocation with regard to the time of the leading
men of the state parliament being spent in the parliament of the commonwealth; there must be inconvenience;
but that can be got over if it be found that the duties of a member of a state parliament and of the
commonwealth parliament are inconsistent, and that both cannot be carried on. I hope that the federal
parliament will be empowered to enact that no man who is a member of a state parliament shall hold a
seat as member of the commonwealth parliament. I do not want any absolute prohibition. I want to
give the electors as free a hand as possible, and experience will tell us which is the best course.
END QUOTE

Hansard 7-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian
Convention)

QUOTE

Mr. HIGGINS.-Ought you not to have the same phrase in sub-section (2) as you have in sub-section (3) of
clause 45?

Mr. ISAACS.-Yes. That would get over the difficulty. If in sub-section (2) of clause 46 you put an express
reference to a certain class of insolvency, that must exclude by inference any other class of insolvency. There
is another point, and this is also a very serious one, to which the Premier of Victoria drew my attention before
lunch. Sub-section (3) of clause 46 provides that the seat of a senator or member of the House of
Representatives is to become vacant if he-

directly or indirectly accepts or receives any fee or honorarium for work done or service rendered by him for
and on behalf of the Commonwealth while sitting as such member.

No exception is made to meet the case of a Minister of the Crown. There is provision made elsewhere in
the Constitution for the payment of salary to Ministers for services rendered to the Commonwealth,
which might include his services as a senator. Clause 48A provides that-

Until the Parliament otherwise provides, each senator, and each member of the House of Representatives,
shall receive for his services an allowance of 400 a year, to be reckoned from the day on which he takes his
seat.

The allowance spoken of there might be regarded as an honorarium, or as a fee, but it is an allowance for
"services," which is the word used in sub-section (3) of clause 46.

END QUOTE

Hansard 31-3-1891 Constitution Convention Debates

QUOTE Sir SAMUEL GRIFFITH:

There are, of course, many formal matters relating to both houses, such as the election of president and
speaker, disqualifications, the issue of writs, elections, and so on, with which I shall not on this occasion
trouble the Convention. It is provided, then, that each member of either house shall have an annual
allowance for his services, which is proposed to be fixed in the meantime at 500 a year. The ordinary
disqualifications are inserted as to members holding offices of profit, with the exception of ministers of the
Crown, or becoming public contractors and other similar provisions.

END QUOTE

Hansard 2-4-1891 Constitution Convention Debates

QUOTE

Clause 45. Each member of the senate and house of representatives shall receive an annual allowance for
his services, the amount of which shall be fixed by the parliament from time to time. Until other

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 provision is made in that behalf by the parliament the amount of such annual allowance shall be five hundred
pounds.

Mr. WRIXON: I am not going to violate my own rule, and raise a point on the drafting here, except to
suggest to the hon. member in charge of the bill that the wording is not, I think, the best that could be
adopted. I think that to describe the payment mentioned in the clause as an allowance for services is a
misdescription. It is really an allowance for the reimbursement of expenses.

Mr. CLARK: We argued that out in committee!

Mr. WRIXON: I should prefer to see the wording which is used in some of the statutes of those
colonies which have adopted payment of members, namely, that it should be put as the reimbursement
of expenses, because otherwise you get into the public mind the idea that members of parliament are
actually paid a salary for their work, which they are not.

Mr. MARMION: I do not see why these words "for their services" should be included at all. Why not say
that each member of the senate, and of the house of representatives, shall receive an annual allowance? I
move as an amendment:

That the words "for his services," line 3, be omitted.

Mr. GILLIES: I beg to move:

That the Chairman report progress, and ask leave to sit again to-morrow.

If hon. members will take the opportunity of looking at the laws in the several colonies, with reference to the
payment of members, they will find that a series of provisions ought to be inserted in the bill which are not
inserted. If they look at the New South Wales act, they will find provisions which take into consideration the
salaries that are paid to ministers, to officials, and so on. Some provision is required in order to guard against
officials being paid double. When a member of parliament becomes a minister of the [start page 654]
Crown, the amount he was previously paid as member of parliament lapses. There is no provision of that
kind in the clauses of this bill. It is not at present contemplated in this bill to make any other provision than
the bald provision already made. Surely it is not contemplated that in the event of a member of
parliament who was being paid 500 a year accepting office, he is to receive his salary as a minister of
the Crown plus his salary as a member of parliament. We have to consider these questions in a rational
manner; and to settle a matter of this kind without consideration is not likely to commend it to our own
judgment, and certainly not to the judgment of the public.

Sir SAMUEL GRIFFITH: I certainly think that we have done as much work as we are likely to do well
to-day, and I doubt very much whether the Committee is prepared to give proper attention to further work to-
night. I should like to say a word or two in reference to what the hon. member, Mr. Gillies, has stated in
regard to the absence of provision on matters of detail. The omission was intentional so far as the drafting
committee was concerned, because we thought it was not our business to encumber the constitution
with matters of detail. One of the first things to be done by the parliament of the commonwealth in its first
session would be to settle the salaries of ministers, and a great number of other matters of that kind. We have,
therefore, given them power to deal with this subject. We did not think it necessary to make this in an sense a
payment of members bill. We lay down, however, the principle that they, are to receive an annual
allowance for their services, and we thought that it should start in the first instance at 500.

Motion agreed to; progress reported.

END QUOTE

This correspondence is not intended and neither must be perceived to state all issues/details.
Awaiting your response, G. H. Schorel-Hlavka O.W.B. (Gerrit)
MAY JUSTICE ALWAYS PREVAIL (Our name is our motto!)

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