The original or the first Constitution written for Australia is the –Australian constitution 1844 – and the Australian Constitution Act 1844 and it is attached to Creative Commons which is attached to the wastelands act 1855.
Queen Victoria could see they were doing private business and wanted to protect the Australian People from her own son, so she secured the seals to the lands of each state, not the common wealth, so that when they called for Federation in 1900. At that stage each of the states were in competition with each other and using their own currency, charging people crossing borders.
Federation enabled the creation of the Commonwealth as a company in order to trade internationally. Commonwealth Constitution UK 1900 – and is also in PDF and transitioned with 112 deletions and 114 changes – Commonwealth of Australia Constitution 1901 with a PREAMBLE which is FOR the people and the rest of the Constitution is for THEM. And a Constitution Act 1901.
There are also many files up on the ‘solutions’ page in regards to the clarification of your ‘standing’.
This is the Constitution our private corporation likes to use because they changed it WITHOUT referendum.
39]. Constitution Act and Another Act Amendment Act 1977 (Qld). See also: ‘Queensland’ (1977) 23(1) Australian Journal of Politics and History 88, p. 91. Note that accepting fees as a barrister for representing the Crown is more likely to trigger disqualification as a contract with the public service or the acceptance of fees under section 45(iii) of the Commonwealth Constitution
(you can use this is in response to all fines and interaction with the private corporation)
14 June 2018
PDF version [703KB]
Professor Anne Twomey
University of Sydney Law School
Office of profit and the application of the Remuneration Tribunal Act
Section 7(10) of the Remuneration Tribunal Act 1973 (Cth) provides that a ‘member of, or a candidate for election to, either House of Parliament is not entitled to be paid, and shall not be paid, any remuneration or allowances in respect of his or her holding, or performing the duties of, a public office’, but shall be reimbursed for expenses reasonably incurred in respect of holding or performing the duties of the office. Its intent is presumably to prevent any member who inadvertently accepts an office of profit from being disqualified. It only applies, however, in relation to persons remunerated under that Act. Accordingly, it did not aid Cleary or Kelly. Further, as the Courts have held that the relevant question is whether profit attaches to the office, rather than whether the particular person received such a profit, it is doubtful whether this provision is effective.
The section was potentially relevant in the case of Hollie Hughes. She was a candidate in the 2016 double dissolution election for the Senate in New South Wales. She was not declared elected at the time the writ was returned and she subsequently took up an office of profit under the Crown, being a part-time appointment to the Administrative Appeals Tribunal. When a special recount was held, after Fiona Nash was found to have been incapable of being chosen as a senator at the 2016 election, it showed that the person next elected was Hollie Hughes. Hughes had resigned her office at the Administrative Appeals Tribunal after the Court of Disputed Returns had held that Nash was invalidly chosen, but before the special count was held. The issue was whether or not Hughes was also disqualified for holding an office of profit during a period after her nomination but before the recount determined that she had been chosen, and if so, whether it gave rise to a special recount or a casual vacancy. The Court of Disputed Returns held that Hughes was disqualified because at the time she held an office of profit under the Crown the election period had not been completed, due to the failure validly to elect a candidate. It was not, as Hughes had argued, a case of a casual vacancy arising from a disqualification that had occurred after the election had been completed.
The potential application of subsection 7(10) of the Remuneration Tribunal Act was raised in the Commonwealth’s submissions. The Solicitor-General submitted that subsection 7(10):
may be intended to prevent s 44(iv) from disqualifying a person who holds an office the remuneration for which is specified by the Remuneration Tribunal, by removing the entitlement to “profit” from the office in any period that would engage that section. It is not, however, necessary to determine whether the provision is effective to achieve that result, because on the facts of this case s 7(10) can have had no operation. That follows because Ms Hughes was appointed as a member of the AAT approximately 12 months after she ceased to be a “candidate for election”, and at a time when she obviously was not a member of either House of Parliament. The contrary view – being that Ms Hughes remained a “candidate” because Ms Nash’s disqualification has revealed that the NSW Senate election was never complete – would have the consequence that s 7(10) would operate to deprive Ms Hughes (together with any other person who sought election as a senator for NSW at the 2016 election) of any entitlement to be paid any amount specified by the Remuneration Tribunal for any work performed at any time since the 2016 election. It would have that operation irrespective of whether the person deprived of that entitlement was elected on the special count. That operation of the provision would be so obviously unreasonable that s 7(10) should be construed as referring to periods when a person was a “candidate for election” in fact. If so construed, it plainly has no operation in this case.
The Court of Disputed Returns, however, held that the election was not completed until the seat was validly filled. On that basis, it would appear that Hughes was still regarded as a candidate at the time of the special recount, which would suggest that the Commonwealth’s submission above was not accepted. Nonetheless, the Court of Disputed Returns did nåot seek to apply subsection 7(10) to Hughes. It confined its observations on the matter to the following:
Members, including part-time members, of the Administrative Appeals Tribunal are entitled to remuneration in accordance with determinations made under s 7 of the Remuneration Tribunal Act 1973 (Cth). There could be, and was, no dispute that the position Ms Hughes held during the period between 1 July and 27 October 2017 answered the description of an “office of profit under the Crown” within the meaning of s 44(iv) of the Constitution.
Perhaps the Court took the view that subsection 7(10) was ineffective, because the profit continues to be attached to the office even though a candidate or member is not entitled to receive it. Alternatively, it may have considered that it did not need to address the issue as no party had claimed that the provision applied. The most one can conclude is that subsection 7(10) has so far proved ineffective in preventing the disqualification of candidates or members under section 44(iv) of the Constitution.
Disqualification from membership of a House of Parliament only arises when the ‘office of profit’ held is ‘under the Crown’. The Crown, in this context, has been taken to mean the Executive Government. As discussed in the next part, however, it extends beyond the Crown in right of the Commonwealth, to the Crown in its other manifestations.
This part addresses what is meant by ‘under the Crown’, which suggests a degree of subordination to, or control by, the Crown. It considers its application to public servants, officers appointed by the Houses of Parliament, the staff of members of Parliament and persons holding statutory offices or offices in government business entities. Other more specialised categories are discussed in separate parts below.
Factors which have been previously regarded as relevant to whether an office is ‘under the Crown’ include whether it is:
(a) within the gift of the Crown (i.e. the Crown controls appointment to the office)
(b) under the ongoing control of the Crown (i.e. the Crown controls the remuneration of the office and/or removal from the office)
(c) under the supervision of the Crown, so that the office is accountable to the Crown or subject to ministerial instruction or direction and
(d) an office concerning public service to the state.
Not all these factors have been regarded as necessary in each case to classify an office as one that is ‘under’ the Crown. For example, in 1949 the UK Attorney-General observed ‘we have taken the view that to be held under the Crown an office does not necessarily have to be subject to any continuing control in its exercise by the Crown’, but it does mean offices that are ‘connected with the public service or the appointment to which is in the hands of some authority under the Crown’.
In India, consideration is also given to a range of different elements, including ‘the power to appoint, the power to dismiss, the power to control and give direction as to the manner in which the duties of the office are to be performed and the power to determine the question of remuneration’. It is not regarded as necessary that all these elements co-exist or that the source from which the remuneration is paid is public revenue.
In the United Kingdom, an office may be regarded as ‘under the Crown’ even when it is an office held in a private body, such as a corporation with private shareholders. For example, in 1947 the British Government authorised a loan to a private company, Scottish Slate Industries Limited. A condition of the loan was that the minister nominated two directors to the company. The minister nominated John George as a director, and he was made chairman of the board. A UK Select Committee found in 1955 that this was an office of profit under the Crown.
In 2018 the Court of Disputed Returns of Australia chose to take a narrower view of when an office was ‘under the Crown’. It did so in order to achieve greater certainty. It relied solely on the two factors addressed in (a) and (b) above, and rejected the relevance of the Crown’s supervisory powers or the relationship with public service. The Court set out a two-limbed test:
The office of a member of the Australian Public Service (‘APS’) is clearly one of profit that is under the Crown. Accordingly, public servants must resign their office before nominating to stand for election. If a person resigns from the APS for the purpose of contesting an election and fails to be elected, he or she is ‘entitled to be again engaged as an APS employee’ as long as this occurs within the stipulated timeframes and in accordance with the Commissioner’s Directions.
State public servants who resign to run for Commonwealth elections either have a right to be reinstated if they fail to be elected or are permitted to apply for reinstatement. Where there is discretion about reappointment, there is a risk that reappointment may be refused upon political grounds. While this ameliorates the disadvantage to public servants that would otherwise apply to them when it comes to running for Parliament and therefore widens the pool of potential candidates, it would also seem to thwart the intent of the constitutional provision and perhaps be regarded as unconstitutional if the effect is that the person has not effectively terminated his or her office of profit under the Crown. There is therefore a risk that such legislation would be invalid for infringing section 44(iv).
An office is not ‘under the Crown’ if the holder of the office is appointed by a House of Parliament, rather than the Crown. For example, the offices of Speaker of the House of Representatives and President of the Senate, while being offices of profit, are not regarded as being ‘under the Crown’. Similarly, the payment of special allowances or remuneration to the Leader of the Opposition, to whips and others for fulfilling parliamentary roles does not transform them into offices of profit under the Crown.
The appointment of a member or senator by a House is used as a means of avoiding the application of section 44(iv). For example, section 10 of the National Library Act 1960 (Cth) provides that the Council of the National Library shall include ‘one Senator elected by the Senate’ and ‘one member of the House of Representatives elected by that House’.
A question arises as to whether employees of members of Parliament hold offices of profit under the Crown. Prior to 1984, legislative assistants to members of Parliament were employed as temporary employees under the Public Service Act 1922 (Cth), which caused them to hold offices that were ‘under the Crown’.
The Members of Parliament (Staff) Act 1984 (Cth) provides that senators and members may ‘on behalf of the Commonwealth’ employ staff. The reference to the ‘Commonwealth’ as the employer may mean that their employment comes ‘under the Crown’. If the ‘Commonwealth’ is regarded as the ‘executive government’ rather than the polity and it controls the appointment, removal and remuneration of staff, then these would be offices of profit under the Crown.
The Commonwealth Government advises persons employed under this Act that they ‘may’ be disqualified and that they must seek their own legal advice. In the case of Jeannie Ferris, discussed above, one aspect of the debate was whether she was employed by Senator Minchin in his capacity as a parliamentarian or in his capacity as a Parliamentary Secretary. Employment by a minister of the Crown, in that capacity, would certainly fall within an office of profit under the Crown, but employment by a member or senator remains uncertain, especially if this employment occurs ‘on behalf of the Commonwealth’, rather than employment on behalf of the House concerned.
Appointment by the executive government to a statutory office would generally be regarded as the conferral of an office of profit under the Crown even though tenure in the office may be fixed or otherwise protected. A member of Parliament would, therefore, become disqualified if he or she were appointed as the Ombudsman or the Commissioner of Taxation. Appointment by the Presiding Officers to a statutory office, such as Parliamentary Budget Officer, is likely to be regarded as not falling within an office of profit under the Crown.
The office of Auditor-General is more complex, because he or she is appointed by the Governor-General on the recommendation of Prime Minister, but only after the Prime Minister has referred the proposed recommendation to the Joint Committee of Public Accounts and Audit and it has approved it. The Auditor-General is also declared to be an independent officer of the Parliament. The factors of appointment by the Governor-General and the incompatibility between the office and that of a member of Parliament make it likely that it is an office of profit under the Crown, but it might be queried whether the constraints imposed upon appointment mean that it is not really ‘at will’ and the provisions conferring independence on the office show that it is not within the effective control of the executive.
Where an office is held in a body that fulfils a commercial function, rather than a public service function, or where it has been semi-privatised and treated as a commercial entity that is to act independently of the Crown, the position becomes even more uncertain. Subsection 5(1) of the Public Governance, Performance and Accountability Rule 2014 (Cth) prescribes eight bodies as government business enterprises, including Australia Post, NBN Co and the Defence Housing Authority. In addition, there are other corporatized government entities, such as Snowy Hydro Ltd. Sometimes legislation will expressly provide that a member of Parliament is not eligible to be or remain a director of the corporation, which averts the issue arising.
Each State has its own corporatized or quasi-government bodies. As these bodies combine a level of autonomy from government with a level of accountability to government, it is difficult to determine whether their employees or directors might be classified as holding an office of profit under the Crown. It would be necessary for a court to examine the relationship between the body and the government with respect to appointment, removal and remuneration in any particular case to make a finding.
It’s like peeling onions, it’s layer after layer, so too is knowledge, there is always something new to learn, and so we keep learning.
I pro-actively send emails to police, members of parliament, council, public servants, in fact anyone with any pseudo authority, and i send it in the spirit of humility to just let them know because maybe they dont have anyone in their world that even talks about this stuff.
So i send these 3 documents.
Check the address page under Templates
Various easy listening/watching !!!
7. https://www.youtube.com/watch?v=jCE61FIK-pA what is Australia!!!!
I will be running workshops on this, email me if you are interested at email@example.com
This one is an early one, a general political one with some other general world stuff.
This one is based on David Walters work – a general basic aussie history.
Senator HEFFERNAN (New South Wales) (12:45): I rise today for chapter 1 of what will take many hours. I recently have been given an order to produce documents to the McClellan Royal Commission into Institutional Responses to Child Sexual Abuse to justify my making a case to the royal commission, which is doing excellent work and is discovering things on the public record about the treatment of and behaviour towards children in our institutions—which a lot of us have known about for 50 years; most people have chosen to look the other way and ignore—that we have the same problem, I think, in the institution of the law as well as in the institutions of our churches et cetera.
I was given an order to produce, and I produced, documents to justify my case to the McClellan royal commission. I have some of those documents here. The notations from the royal commissioner are on the documents. This one I am holding up here, for instance, asks, about boys picked up by judge so-and-so, ‘Were they Marcellin College students?’ This is a police intelligence document that says, ‘A certain judge used to pick up boys in the toilets opposite Marcellin College.’ That particular judge, by the way, gave a sentence of ‘found guilty till the rising of the court’ to a person who was charged with serious sexual offences. He also allowed a father who was abusing his foster children and whom he found guilty in a closed court, with names suppressed, to go back to the family home. That is that particular judge.
I want to make the case that there is clearly a need—and I intend to get a senior legal opinion—for the inclusion in the terms of reference for the royal commission, under ‘institution’, the institution of the law. We also need a federal judicial commission. In estimates the other day, the Attorney-General said we do not need a federal judicial commission because there is no endemic corruption in the federal law system. I said to him, ‘Well, does that mean there is in New South Wales,’ because New South Wales does have the very, very successful Judicial Commission of New South Wales, which does everything from educating judges on sentencing to being a speed camera in the system for this behaviour. Of course, I did not get a sensible response to that: ‘It’s a different jurisdiction,’ et cetera.
Within the federal jurisdiction, I have pointed out the behaviour of one Dr Rikard-Bell, who has given 2,000 opinions as an expert to the Family Court. The Family Court system in Australia is broken. There are a lot of things that go on in there, with partners dividing and accusations of sexual misbehaviour within the family, especially the fathers. This guy, who has given 2,000 opinions as an expert to the court, says in an interview with the ABC, which I would like to table, that he has no real expertise. In fact, he was instructed by a man, Dr Richard Gardner—who has since suicided, by the way—that Dr Rikard-Bell recommends as an opinion maker, and who said:
… the child has to be helped to appreciate that we have in our society an exaggeratedly punitive and moralistic attitude about adult-child sexual encounters …
This is the guy giving advice to Dr Rikard-Bell. This Dr Rikard-Bell insists on interviewing children in front of the offending fathers. How is that for intimidation? And so it goes on.
So there is a serious problem in the Family Court. I now have on my desk in my office a pile which is nearly a foot thick of correspondence from parents, especially mothers, who have been mistreated, as they see it, in the Family Court. I just think the Family Court needs sorting out, but I do not have time to go through the particular detail.
I have here also police documents that every Attorney-General, from Philip Ruddock to now, has seen. The present Attorney-General has not been delivered these documents; he saw some of them in a Senate hearing in Melbourne, where I was not allowed to table them. This goes to why we need a federal judicial commission and why we should include the institution of the law in the terms of reference of the royal commission. This is a police document, from the Child Protection Enforcement Agency—I will not name anyone—to the Commissioner of Police New South Wales, with a date: ‘The attached report relates to Justice’—the name is deleted—’who has emerged prominently during my investigations to date. Much of the information is hearsay and not capable of being sustained, but collectively it paints a disturbing picture of a senior member of the legal profession who may or may not have committed criminal offences but who certainly, in my view, is open to compromise,’ which is the serious issue. It goes on: ‘In the circumstances, I feel no alternative but to seek your permission to carry out a sustained surveillance operation against this target. I do not take this decision lightly in view of Justice’—deleted name’s—’high profile, but I feel that based on similar evidence I would have little hesitation in carrying out such an operation against any other member of the public. For such reasons, I do not think that this particular person should be treated any differently, though I recognise the matter must be handled with acute sensitivity. I am of the view that such an investigation would serve a dual purpose. Primarily, it may provide evidence of criminal offences committed against young boys aged under 18. There is certainly strong suspicion of such activity. Secondly, it may yield evidence of inappropriate behaviour which, whether or not it constitutes a criminal offence, would leave the judge open to compromise and ought to be reported to the appropriate legal body’—very important words. It continues: ‘Such consideration was singularly absent from the suspicion surrounding Justice Yeldham,’ and I will name him, ‘which consequently did not show either the police or the legal profession in a good light. I believe this action is defensible on those grounds alone. Subject to your approval, I intend to take personal command of the operation under the auspices of Strike Force Cori.’
I also raised in estimates the other day another police document, with a list of people. I am not going to name anyone on this list. I note that royal commissioner Justice Wood said he does not recall this document at the time, even though it is his document, signed off by Gary Crooke QC. It is addressed to the New South Wales Police Service and it is a list of alleged paedophiles. A person known to the commission compiled the list involving paedophilia. The list details his knowledge of activities—these are only allegations—and at the back there are surveillance issues.
To give an idea of the intensity of this: the first person on the list is a former Prime Minister; the second person is a political party heavyweight; the next person is a very senior business person; the next person is a senior judge; the next person is a Supreme Court master; the next person is Justice Yeldham, who, sadly, has passed away. He should not have suicided. Everyone knew what he was up to. The next guy on the list is a local court magistrate; the next guy is a former president of the Law Society; the next one is John Marsden, who has passed away; the next one is a judge, the guy who used to go to Marcellin College; the next guy is a QC; the next guy is a barrister; the next guy is a barrister; the next guy is a barrister; the next guy is a barrister; the next guy is a QC; the next guy is a barrister; the next guy is a QC; the next guy is a senior partner of a law firm; the next guy is a senior solicitor of a law firm; the next guy is a barrister’s clerk—and so it goes on.
These are police documents. The Wood royal commission, in volume 4, said they were disturbed at the way files were mismanaged and the contents were lost. Sadly, I have a lot of the contents from the lost files and I have had them for some time. They were delivered to me on a bench in the botanic gardens. I think it is absolutely essential that we, the Australian people, give serious consideration to why we should have a judicial commission and why we should get the royal commission, which is doing a fantastic job, to include this in its terms of reference.
I have talked about Costello’s, the boy brothel, and Porky’s. Some of the people who attended those are noted here. The police were on the payroll. They would ring up Costello’s, the boy brothel, and say, ‘We’re coming to raid you.’ They were being paid. I can name the coppers that were getting the money. The police are seriously compromised. For someone like me, who has all this knowledge, even though you could get smashed for talking about—it would be derogatory—I do not think it would be responsible to not try and do something about it.
I have a police letter here saying that there was a guy who represented Philip Bell, a notorious paedophile, under a false name in court. I wrote to the police and said, ‘Why haven’t you arrested him?’ They said: ‘It’s only evidence from the royal commission. We would have to have another investigation. Evidence from the royal commission may not be admissible in a prosecution. We would have to have our own investigation.’ I am advised the prosecution always retains a discretionary power not to proceed—in other words, a cover-up. This is a lawyer who represented—
The ACTING DEPUTY PRESIDENT ( Senator Sterle ): Senator Heffernan, your time has expired. You are seeking leave to table a document?
Senator HEFFERNAN: I seek leave to table a transcript of an ABC interview.
The ACTING DEPUTY PRESIDENT: Is leave granted?
Senator McEwen: I do not want to deny leave to Senator Heffernan but I have not seen the document. It has not been provided to the whips, which is the normal courtesy.
Hansard BH – Bill Heffernan Speech in Hansards
SAY NO TO PAYING UNLAWFUL TAXES. WHERE IS OUR REFUNDS FOR THE TAXES BEING EXTORTED FROM ALL AUSTRALIANS.
Why would YOU pay money to an UNREGISTERED BUSINESS?
This just goes to show how we are being treated like morons and taken down by corrupt FOREIGN NAZI/COMMUNISTS.
We will have to start standing up for our Laws/Lores of this country