1

Warwick Gately AM Victoria's Electoral Commissioner. 24-10-2018

Victorian Electoral Commission
5 Address: 530 Collins St, Melbourne VIC 3000
[email protected]

COMPLAINT (various issues)

Sir,
10 I contact you regarding my concerns about the mi98suse and abuse of office and
public monies by members of the LP (Australian Labor Party) in various manner and that in my
view those involved in the so called Red Shirt issue by s44 of the constitution are ineligible to
be Members of the State Parliament and Ministers in government.
I will explain various matters below.
15 .
Firstly the States are created out of the former colonies (As such the State of Victoria out of the
Colony of Victoria) within Section 106 of the Commonwealth of Australia Constitution Act
1900 (UK) which is and remains to be our governing constitution.

20 Section 106 of the Commonwealth of Australia Constitution Act 1900 (UK)

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

Do note the wording “subject to this Constitution”! As such the legal principles embedded in this
federal constitution applies also to the States unless otherwise indicated by this federal
30 constitution!

Section 44 of the Commonwealth of Australia Constitution Act 1900 (UK)

QUOTE
44 Disqualification
35 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,
40 for any offence punishable under the law of the Commonwealth or of a State by imprisonment for
one year or longer; or
(iii) is an undischarged bankrupt or insolvent; or
(iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the
Crown out of any of the revenues of the Commonwealth; or
45 (v) has any direct or indirect pecuniary interest in any agreement with the Public Service of the
Commonwealth otherwise than as a member and in common with the other members of an
incorporated company consisting of more than twenty-five persons;

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shall be incapable of being chosen or of sitting as a senator or a member of the House of
Representatives.
But subsection (iv) does not apply to the office of any of the Queen’s Ministers of State for the
Commonwealth, or of any of the Queen’s Ministers for a State, or to the receipt of pay, half pay, or
5 a pension, by any person as an officer or member of the Queen’s navy or army, or to the receipt of
pay as an officer or member of the naval or military forces of the Commonwealth by any person
whose services are not wholly employed by the Commonwealth.
END QUOTE

10 As this section 44 essentially, as I understand it, was drawn from the colonial constitutions the
principle of a conflict of interest, etc, as such applies as much to State Members of Parliament as
it does to Federal Members of Parliament.
I understand that the Victorian Government headed by Premier Daniel Andrews spend reportedly
more than $1million on litigation to as I understand it unsuccessfully prevent the Victorian
15 Ombudsman to investigate matters. This besides the ALP (Australian Labor Party - Victoria)
having repaid about $400,000 of monies that were deemed to be misappropriated in the Red Shirt
saga. I am not aware any of the candidates in the 2014 Victorian State Election made any proper
declaration as required by law as to their electoral spending in regard of this 2014 election.
Where the VEC took me to court not having made a declaration as a candidate even so I had
20 nothing to declare as an expenditure then it appears to me that the VEC uses DOUBLE
STANDARDS not to have, at least to my knowledge, any of the candidates who inappropriately
made declarations. The Ombudsman finding in my view should have resulted that the VEC had
pursued prosecution against all those who omitted to declare their financial benefits in the Red
Shirt incident. The fact that the Victorian ALP reportedly repaid the moneys in itself must be
25 taken as an admission of impropriety and I view the VEC should have prosecuted those involved,
this as the repayment was I understand years after the 2014 Victorian state election being held
and as such well beyond the time limit set to declare financial matters of expenses, etc, regarding
this 2014 Victorian state election.

30 I draw your attention also to my 4-6-2014 correspondence, which was about 5 months
prior to the 2014 Victorian state election having been held!
Do note also Cc: Daniel Andrews leader ALP [email protected]

QUOTE 4-6-2014 correspondence

35 WITHOUT PREJUDICE
Mr D. Napthine Premier of Victoria 4-6-2014
[email protected]

Cc: Mr Geoff Shaw MP [email protected]

40 Mr Ken Smith, Former Speaker, Legislative Assembly Victoria, [email protected]

Daniel Andrews leader ALP [email protected]

20140604-G. H .Schorel-Hlavka O.W.B. to Premier D Napthine-Re Geoff Shaw MP-etc

45 Sir,

END QUOTE 4-6-2014 correspondence

And
QUOTE 4-6-2014 correspondence
50 http://ag.ca.gov/ethics/accessible/misuse.php
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QUOTE

Ethics Orientation for State Officials

Misuse of Public Funds
Public Funds may not be Used for Personal Purposes
5 The starting point for any analysis concerning the misuse of public funds begins with the principle that public
funds must be expended for an authorized public purpose. An expenditure is made for a public purpose when
its purpose is to benefit the public interest rather than private individuals or private purposes.
Once a public purpose is established, the expenditure must still be authorized. A public official possesses
only those powers that are conferred by law, either expressly or impliedly.
10 The California Constitution and a variety of state statutes make it clear that public funds may not be
expended for purposes that are primarily personal. Such expenditures are neither for a public purpose nor are
they authorized.
The prohibition against using public funds for personal purposes does not mean that no personal benefit may
result from an expenditure of public funds.
15 For example, the payment of a public employee’s salary confers a personal benefit on the employee, but it is
an appropriate expenditure of public funds because it is procuring the services of the employee for public
purposes.
The misuse of public funds occurs when the personal benefit conferred by a public expenditure is not merely
incidental. The term “public funds” is not limited to money, but includes anything of value belonging to a
20 public agency such as equipment, supplies, compensated staff time, and use of telephones, computers, and
fax machines and other equipment and resources.

Examples of Misuse of Public Funds

1. In People v. Dillon, a city commissioner used official government discounts to purchase items for himself
25 and others. This was a misuse of public funds, even though those receiving the discount paid for the
items with personal funds.

2. In People v. Sperl, a county marshal furnished a deputy marshal and a county vehicle to transport a
political candidate, his staff and family.

3. In People v. Battin, a county supervisor used his county compensated staff to work on his political
30 campaign for Lieutenant Governor.

4. In People v. Harby, a city official used a city car, entrusted to him for use in connection with official
business, to take a pleasure trip from Los Angeles to Great Falls, Montana and back.
Violations of the laws prohibiting misuse of public funds may subject the violator to criminal and civil sanctions.
These penalties may include imprisonment for up to four years and a bar from holding office.
35
State Agency Participation in Ballot Measure Elections
There is another issue involving the misuse of public funds that does not concern the personal use of public funds.
This issue concerns the use of public funds in connection with ballot measure campaigns. Following is a list of what
40 we’ll cover in this section.
 Stanson v. Mott

 Endorsements and Informational Materials

 Improperly Using Public Funds may Trigger Fines

Using Public Funds and Ballot Measure Campaigns
45 The California Supreme Court case of Stanson v. Mott is the cornerstone case concerning the expenditure of public
funds in election campaigns.
In Stanson v. Mott, a private citizen sued the Director of the California Department of Parks and Recreation,
challenging the director’s expenditure of Department funds to support passage of a bond act appearing on a
statewide ballot. The Supreme Court unanimously found that the director had acted unlawfully, concluding that “in
50 the absence of clear and explicit legislative authorization, a public agency may not expend public funds to promote a
partisan position in an election campaign.”
Stanson v. Mott
The Supreme Court wrote in Stanson: “A fundamental precept of this nation’s democratic electoral process is that
the government may not ‘take sides’ in election contests or bestow an unfair advantage on one of several competing

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 4
factions. A principal danger feared by our country’s founders lay in the possibility that the holders of governmental
authority would use official power improperly to perpetuate themselves, or their allies, in office....”
The Supreme Court further wrote in Stanson “...The selective use of public funds in election campaigns, of course,
raises the specter of just such an improper distortion of the democratic electoral process.”
5 Endorsements and Informational Materials: Subsequently, court cases have said that a government agency may
endorse a measure that is related to its expertise so long as it does not expend funds to promote its passage.
Similarly, a government agency may draft legislation or a ballot measure related to its expertise, but may not
promote the passage of the measure in an election campaign.
Here is Jose Lopez discussing the findings in the Stanson case in regard to the agency participation in ballot measure
10 elections.
1. “The Stanson Court also noted that if a state agency or department has authority to disseminate information
relating to its activities, it may spend funds to provide the public with a fair presentation of relevant
information.”

2. “The Court found that it would be contrary to the public interest to bar knowledgeable public agencies from
15 disclosing relevant information to the public, so long as such disclosure is full and impartial and does not
amount to improper campaign activity.”

3. “To be fair, a presentation must consider all important points and provide equal treatment to both sides of
the issue.”
Improperly Using Public Funds may Trigger Fines: Improper use of public funds also may trigger fines from the
20 Fair Political Practices Commission for failing to report campaign contributions. In 1996, Sacramento County paid a
$10,000 fine to the Commission in connection with a utility bill insert explaining the effect on the county of several
ballot measures. The Commission ruled that the insert advocated a position on the ballot measures and was not a
neutral and fair presentation of the facts.
Let's Review
25 TRUE or FALSE: Expenditures made to benefit the public are permissible.
 Answer: False. The expenditure must also be authorized to be permissible.
Evelyn is an agency secretary. She has just completed a long day and she wishes to make a few telephone calls
before she leaves her office to invite potential contributors to the incumbent Governor’s campaign fundraising
dinner. Since the people she will be calling frequently have dealings with the state government on a variety of issues,
30 may she charge these calls to the state? Yes or No.
 Answer: No. Evelyn may not charge the calls to the state as they are for personal political purposes rather
than for a public purpose.
Let's Review
Ramon is the director of a state department. He wishes to produce informational materials to answer questions about
35 the impact of a ballot measure. Select the situation in which it is permissible to expend funds for this purpose.
a. The materials stop short of advocating a vote for or against the measure.

b. The materials do not make false statements.

c. The materials present a balanced description of the favorable and unfavorable impacts of the measure.

 Answer: c. The materials must present a balanced description of the favorable and unfavorable impacts of
40 the measure.
Remember These Points
 Expenditures must be for a public purpose

 Expenditures must be authorized

 Public funds may not be expended for personal use

45  Information must be fairly presented

 Violations bring criminal, civil and administrative sanctions

END QUOTE

Clearly politicians shouldn’t use their public office to do election campaigns, pursue political
50 battles, etc.
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END QUOTE 4-6-2014 correspondence

It should be understood that electors do not elect a government but do no more but elect
LEGISLATORS. It is then for the governor of the state of Victoria to commission a person who
5 the governor deems it the best suited person to be Premier and commission others to be Ministers
also as constitutional advisers. The same applies to federal as well as state Members of the
Government.

HANSARD 4-3-1891 Constitution Convention Debates

10 QUOTE Sir HENRY PARKES:
The resolutions conclude:

An executive, consisting of a governor-general, and such persons as may from time to time be
appointed as his advisers, such persons sitting in Parliament, and whose term of office shall depend
upon their possessing the confidence of the house of representatives expressed by the support of the
15 majority.
What is meant by that is simply to call into existence a ministry to conduct the affairs of the new nation as
similar as it can be to the ministry of England-a body of constitutional advisers who shall stand as nearly as
possible in the same relation to the representative of the Crown here [start page 27] a her Majesty's imperial
advisers stand is relation to the Crown directly. These, then, are the principles which my resolutions seek to
20 lay down as a foundation, as I have already stated, for the new super structure, my object being to invite other
gentlemen to work upon this foundation so as to best advance the ends we have in view.
END QUOTE

Therefore it is reasonable to accept that those who are taking up a Ministerial position by this
25 imply they have a proper understanding about constitutional issues relevant to governing the
state.

The Governor of the State by letters Patent published in the Victorian Gazette on 2-1-1901
provided for the appointment of a independent administration of justice, by this ensuring that the
30 state has the separation of powers as applies within the federation.
.
Ministers of the Crown (of a state) therefore must be impartial as to any political relevant party
as they are commissioned to assist the Governor in managing the State of Victoria not for
political party purposes but for the whole of the state citizens.
35 I understand that Premier Daniel Andrews on Tuesday 23 October 2018 was involved in a union
demonstration and so other Members of the Victorian State Parliament, which I view was
nothing less but a blatant disregard to being a Premier for all Victorians and nothing less than an
election gimmick for the 2018 November state election. Hence, in my view this related cost to
taxpayers likewise ought to be held to be election expenses regarding those who are standing as
40 candidates in the 2018 Victorian state election.
.
Further, when the Parliament is prorogued then all those who were Members of the State Commented [GHSH1]:
Parliament are no more. From the moment the Parliament is prorogued/dissolved they are former
Members of the Parliament. Hence, none of them can during any election being held have travel
45 expenses etc at cost of taxpayers. Likewise, Members of the care taking government cannot
indulge in having travelling and other associated cost to go around electioneering paid for by the
taxpayers. Hence, legally any former Member of the State Parliament who electioneers at cost of
taxpayers in effect violates also s44 in that regard and fort his also should be ineligible to be a
candidate in a State election.
50 I am not aware the VEC so far has pursued prosecution against those candidates who used
taxpayers monies to campaign in a state election which deprived other candidates of a FAIR and
PROPER election.

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Again, unless a seat is declared vacant no election can be held. As such even those who stand for
re-election are not holding any seat while the election is being conducted. Therefore I view the
VEC applies DOUBLE STANDARDS not having prosecuted those who are misusing/abusing
taxpayers monies in that regard and failing to declare this in their financial statements after an
5 election has been held.

Also for the Premier and other members of the government to join some union organized
demonstration/campaign then their staff more than likely would have been involved, being it
with phone calls, etc, to organize their attendances and this too in my view must be deemed part
10 of an election expenditure regardless if it is held before the election is actually held.

While I am well aware that the State Parliament may legislate whatever in the end if the
legislation violates our principal constitution then the legislation is of no value.

15 I understood that previously Mr Daniel Andrews stated that he was ultimately responsible, but
somehow seems to back track now. It is not for the VEC to pursue the responsibilities of the
Victorian Police but upon what is reported the VEC clearly has an obligation to apply the rule of
law equally to those who were involved in the Red Shirt issue of misusing taxpayers monies, etc,
as well as those who during elections are using taxpayers monies for election purposes being it
20 directly or indirectly.
Likewise, any parliamentarian who uses taxpayer’s monies to send around to the electorate
material (regardless if legislation purport to permit this) inappropriately has an advantage upon
other candidates in the same election. Also, failing to declare this kind of advertising cost for
their political party/themselves, etc, I view is a violation of the financial declaration required to
25 be filed after an election has been held.

Considering the lies and deception perpetrated by political candidate/parties I view that the NOT
FOR PROFIT registration also must be addressed as to create an unfair advantage versus other
candidates who do not have this financial support. The advertising cost by the political parties for
30 its candidates I view should be disclosed in their financial statements, and failing to have this in
itself also should be pursued by prosecutions.
There is a lot more to it all but for the moment it is my view that those who are subject to a
police investigation regarding the Red Shirt issue should not be allowed to stand as candidates
considering that the legal principles of s44 should be applied to them. In fact their seat should
35 have been declared vacant long ago, when the monies were reportedly repaid as a deemed
acknowledgement that they had misused taxpayers monies. After all, if candidates can misuse
taxpayer’s monies and gain government by this and no appropriate accountability is resulting
then the VEC in my view fails to hold FAIR and PROPER elections. Then the criminal element
will succeed no matter what and honest candidates will time and time be duped to miss out on
40 being elected.
It should not be overlooked that elections are he3ld to have democratically elected legislators.
Clearly this is hijacked by those who use criminal conduct to succeed against honest candidates.
As a former INDEPENDENT candidate I quite frankly have been appalled by the failure of the
VEC to provide FAIR and PROPER election time and time again. Why indeed have a VEC is it
45 is incompetent to provide FAIR and PROPER elections required to ensure a democracy?
This document is not intended and neither must be perceived to refer to all details/issues.

Awaiting your response, G. H. Schorel-Hlavka O. W. B. (Friends call me Gerrit)

MAY JUSTICE ALWAYS PREVAIL® (Our name is our motto!)

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