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26-5-2012 Page 1 G.H.Schorel-Hlavka O.W.B.Constitutionalist & Consultant to FOLEYS LAWYERS ([email protected])

PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website

Http://www.schorel-hlavka.com will be the alternative website for contact details. [email protected]

James Johnson 26-5-2012

Email: James Johnson

Re: immunity5

James, I refer to your email Friday, May 25, 2012 04:36 pm regarding First of Nationwide

Public MeetingsReclaiming Truth, Justice, Equity and the Law Melbourne, Sunday 27 May

2012. From 1:45 pm and provide hereby some comments.

In D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1; (2005) 214 ALR10

92; (2005) 79 ALJR 755 (10 March 2005), the following was stated:QUOTE

33. Ass 71of theConstitutionsays, what is "vested in a Federal Supreme Court, to be called the HighCourt of Australia, and in such other federal courts as the Parliament creates, and in such other courts

as it invests with federal jurisdiction" is the judicial power of the Commonwealth, that is, the judicial15power of the national polity. No matter whether the judicial branch of government is separated fromthe other branches of government (as it is and must be at the federal level[29]but, at least generally, is

not at the State level[30]) it is, in Quick and Garran's words[31],"the third great department of

government".

END QUOTE20

In my view the term third great department was never used by the Delegates to the

Constitution Conventions in 19891, 1897 and 1898 and the fact that Quick & Garran stated:QUOTE

286. The Judicial Power.25SEPARATION OF POWERS.The judicial power is the power appropriate to the third great departmentof government, and is distinct from both the legislative and the executive powers. The judicial functionis that of hearing and determining questions which arise as to the interpretation of the law, and itsapplication to particular cases. The distinction between the departments undoubtedly is, that thelegislature makes, the executive executes, and the judiciary construes, the law. Per Marshall, C.J.30(U.S.), Wayman v. Southard, 10 Wheat. 46; Cooley's Constitutional Limitations (5th Ed.) 109.[P.720]

END QUOTE

In it selves cannot somehow then alter the true intentions of the Framers of the Constitution. It

would be an utter and total absurdity if this were to be so.35

.

While the Parliament has certain legislative powers as to legislate as to what may or may not

litigated and in which manner before the courts it must be understood however that in the end theparliament cannot legislate as to judges (see also KABLE v_THE DIRECTOR OF PUBLIC

PROSECUTIONS FOR NEW SOUTH WALES FC 96-027 that a Chapter III Court must be40

accepted as is constitutionally permissible and cannot interfere with then if lawyers are

OFFICERS OF THE COURT as part of the judiciary system then why have Legal Profession

Act and a Legal Service Commissioner at all?

That it is in my view utter and sheer nonsense can be also concluded of the following:.45Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian

Convention)

QUOTE Sir JOHN DOWNER.-

I think we might, on the attempt to found this great Commonwealth, just advance one step, not beyondthe substance of the legislation, but beyond the form of the legislation, of the different colonies, and say50
http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s71.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s71.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s71.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2005/12.html?stem=0&synonyms=0&query=title(D%27Orta-Ekenaike%20)#fn28http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2005/12.html?stem=0&synonyms=0&query=title(D%27Orta-Ekenaike%20)#fn28http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2005/12.html?stem=0&synonyms=0&query=title(D%27Orta-Ekenaike%20)#fn28http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2005/12.html?stem=0&synonyms=0&query=title(D%27Orta-Ekenaike%20)#fn29http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2005/12.html?stem=0&synonyms=0&query=title(D%27Orta-Ekenaike%20)#fn29http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2005/12.html?stem=0&synonyms=0&query=title(D%27Orta-Ekenaike%20)#fn29http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2005/12.html?stem=0&synonyms=0&query=title(D%27Orta-Ekenaike%20)#fn30http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2005/12.html?stem=0&synonyms=0&query=title(D%27Orta-Ekenaike%20)#fn30http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2005/12.html?stem=0&synonyms=0&query=title(D%27Orta-Ekenaike%20)#fn30http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2005/12.html?stem=0&synonyms=0&query=title(D%27Orta-Ekenaike%20)#fn30http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2005/12.html?stem=0&synonyms=0&query=title(D%27Orta-Ekenaike%20)#fn29http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2005/12.html?stem=0&synonyms=0&query=title(D%27Orta-Ekenaike%20)#fn28http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s71.html

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that there shall be embedded in the Constitution the righteous principle that the Ministers of the

Crown and their officials shall be liable for any arbitrary act or wrong they may do, in the same way as

any private person would be.END QUOTE

5Actually the constitution also provides:QUOTE

75 Original jurisdiction of High CourtIn all matters:

(i) arising under any treaty;10(ii) affecting consuls or other representatives of other countries;

(iii) in which the Commonwealth, or a person suing or being sued

on behalf of the Commonwealth, is a party;END QUOTE

It would therefore be a total absurdity if those representing the monarch (Ministers, etc) can be15

sued but not some lawyer who may just be doing legal work not at all in relation to a pending

court case and still somehow have immunity.

In my view, as the Professional Advocate I was for all purposes and intent in the litigation the

legal representative and also entitled to the provisions as set out in the vcaata1998 such as in20

s.143.Victorian Civil and Administrative Tribunal Act 1998QUOTE

62 Representation of parties

(1) In any proceeding a party25

(a) may appear personally; or

(b) may be represented by a professional advocate if

(i) the party is a person referred to in subsection (2); or

(ii) another party to the proceeding is a professional advocate; or

(iii) another party to the proceeding who is permitted under this section to be represented30by a professional advocate is so represented; or

(iv) all the parties to the proceeding agree; or

(c) may be represented by any person (including a professional advocate) permitted or

specified by the Tribunal.

END QUOTE35

QUOTE

(8) In this section

professional advocate means

(a) a person who is or has been a legal practitioner; or40

(b) a person who is or has been an articled clerk or law clerk in Australia; or

(c) a person who holds a degree, diploma or other qualification in law granted or

conferred in Australia; or

(d) a person who, in the opinion of the Tribunal, has had substantial experience as an

advocate in proceedings of a similar nature to the proceeding before the Tribunal45

other than a person who is in a class of persons disqualified by the rules from being a

professional advocate.

END QUOTE

QUOTE50

143Immunity of participants

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(1) A member of the Tribunal has, in the performance of his or her functions as member, the sameprotection and immunity as a judge of the Supreme Court has in the performance of his or her

duties as judge.

(2) A person representing a party in a proceeding has the same protection and immunity as a legal

practitioner has in representing a party in proceedings in the Supreme Court.5

(3) A party to a proceeding has the same protection and immunity as a party to proceedings in the

Supreme Court.

(4) A person appearing as a witness before the Tribunal has the same protection and immunity as a

witness has in proceedings in the Supreme Court.

END QUOTE10.

Therefore, any person, regardless of being a legal practitioner or not acting as the appointed

legal representative then is entitled to the protection of what was provided in the vcaata1998.

In this case a builder may act as a Professional Advocate involving a matter involving a building

dispute. With an architect likewise. It means the range of persons gaining immunity is wider than15

just the 80,000 odd lawyers.

As a Professional Advocate I am too well aware of this! Yet, when a person (not being a legal

practitioner) ordinary assist a party in litigation then the Court (such as in the Burns case)

ordered cost against the person so assisting, whereas if a lawyer did likewise then he be shielded

from this. What therefore has been established is that a Professional Advocate, not being an20OFFICER OF THE COURT, nevertheless can enjoy immunity.

Being an OFFICER OF THE COURT doesnt make the person to be part of the judiciary, indeed

many an OFFICER OF THE COURT has been found guilty of a variety of offences and

sentenced for this whereas the same may not have eventuated against an officer of the court.25

Moreover, it becomes clouded where Members of a Tribunal also are afforded the immunity,

even so they are not and do not belong to the judiciary as a Chapter II court but are public

servants acting for and on behalf of the government.

As such we now have that those acting for a government are also provided immunity..30Here we have for example a citizen suing the State and its lawyers using all kinds of deceptive

ways to thwart the applicant to succeed and yet the lawyers involved are given immunity even so

they do no more but represent a party and may very well seek to pervert the course of justice!.

Foster (1950) S.R. (N.S.W.) 149, at p151 (Lord Denning, speaking on the role of an advocate)35QUOTE

As an advocate he is a minister of Justice equally with a judge, A Barrister cannot pick or choose his

clients...He must accept the brief and do all he honourably can on behalf of his client. I say 'All he

honourably can' because his duty is not only to his client. He has a duty to the court which is

paramount. It is a mistake to suppose that he is a mouthpiece of his client to say what he wants: or40his tool to do what he directs. He is none of those things. He owes his allegiance to a higher cause. It is

the cause of truth and Justice. He must not consciously misstate the facts. He must not knowingly

conceal the truth. He must not unjustly make a charge of fraud, that is, without evidence to support

it. He must produce all relevant authorities, even those that are against him. He must see that his clientdiscloses, if ordered, all relevant documents, even those that are fatal to his case. He must disregard the45specific instructions of his client, if they conflict with his duty to the court.

END QUOTE.

This is the ideal situation but, so to say, one must be living in the stone age not to know that

we have ample of crooks in the judiciary as well as being lawyers practising in the courts. .50

To say that lawyers as an OFFICER OF THE COURT is a paramount duty may be a

misstatement because no one could avail himself to have a lawyer representing him if his duty to

the court would rob him of justice. Why then are lawyers pursuing plea bargaining scaring the

hell out of their clients to commit to a plea of GUILTY regardless the person is innocent of any

wrongdoing? Michael Alderton hanged himself in 1995 after he discovered that what his lawyer55

had advised him was not what eventuated and so he lost the will to live in the circumstances.

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We have government lawyers concealing the truth and by this knowingly having an innocent

person convicted of rape or even murder and then they can be shielded from being sued or being

held accountable, whereas a Minister cannot? Come on, we must ensure that the judiciary is

above the rule of the Parliament and lawyers cannot be deemed to be so.5

Hansard8-3-1898Constitution Convention DebatesQUOTE Mr. ISAACS.-

We want a people's Constitution, not a lawyers' Constitution.

END QUOTE10

Hansard31-1-1898Constitution Convention DebatesQUOTE 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:15END QUOTE.

Hansard 1-2-1898 Constitution Convention DebatesQUOTE Mr. OCONNER (New South Wales).-

Because, as has been said before, it is [start page 357] necessary not only that the administration of20justice should be pure and above suspicion, but that it should be beyond the possibility of suspicion;

END QUOTE

.Hansard 8-3-1898 Constitution Convention DebatesQUOTE25

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.

END QUOTE

HANSARD 25-2-1898 Constitution Convention Debates30QUOTE Mr. SYMON.-

When we have done this it follows that as there is an element of policy, the existence of which no one

can deny, it will be even more necessary than in the case of the Federal High Court-which is not to

deal with matters of policy, or matters tainted with policy, to use the expression of another speaker-

that the tribunal which we are creating should be above the breath of political intrigue. To secure this,35I think, some provision should be inserted similar to the provisions which we have inserted in regard to the

Judges of the High Court.

END QUOTE.

Hansard 17-3-1898 Constitution Convention Debates40QUOTE 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 free45Constitution. 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 protect50the 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 popular55liberty 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,

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 dealt60with 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

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court appointed by their own Executive, but acting independently, is to decide what is a perversion of itsprovisions? 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 the5Constitution, 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 a10 tribunal as will preserve the popular liberty in all these regards, and will prevent, under any pretext ofconstitutional 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 QUOTE15.

It should be understood that the Commonwealth of Australia (Parliament) can only enact

legislation for the whole of the Commonwealth in a uniform manner and as such cannot enact

legislation to specifically exclude one profession, such as lawyers of being sued as like any other

profession.20.

Hansard19-4-1897Constitution Convention Debates

QUOTE

Mr. MCMILLAN: I think the reading of the sub-section is clear.

The reductions may be on a sliding scale, but they must always be uniform.25

END QUOTE.

Where then in the Kable authority State courts invoking federal jurisdiction must be deemed a

Chapter III court then all State Courts exercising federal jurisdiction neither can have immunity

for one profession being lawyers.30

Lets be clear about it that one can sue a judicial officer who acts without jurisdiction and with

proven malice, and so why would one be able to sue in such a case a judicial officer but not

likewise a lawyer? It means that the protection of la judge is lesser then that if he were practicingas a lawyer and does the same!

35D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1; (2005) 214 ALR 92; (2005) 79 ALJR755 (10 March 2005)

QUOTE

224.The constitutional setting: Mention is made in the joint reasons of the constitutional arrangements

governing the courts of Australia[299]. There is no specific provision in theConstitutionfor the40entitlements and liabilities of the legal profession. Still less is there any mention there of an immunity to be

enjoyed by members of the legal profession against client claims of negligence. No implication of

immunity could be derived from theConstitutionas necessarily inherent in the provisions for this country's

courts as set out there. None was alleged.

225.Nor was any argument advanced that it was implicit in the constitutional design that persons, such as the45applicant, are entitled to approach the courts, provided for in theConstitution, on a basis of full equalitywith other parties in a like position, claiming redress for negligence[300]. In light of the substantial

arguments pressed in this application, I will disregard any such constitutional implications. Nevertheless,

immunities from suit are rightly regarded in Australia as exceptional. Normally, the law of Australia,

which theConstitutionupholds, demands that all persons should be equal before the courts in rights and50liabilities. Derogations from that rule need clear and convincing authority. Quelling controversies is indeed

an important purpose of the Judicature established by theConstitution[301]. However, normally,"controversies" are "quelled" justly and by the application of law. If negligence can be proved, the

controversy presented by such a claim is quelled by holding those negligent, who owed a duty of care and

caused damage, liable for the result. It is not "quelled" by shutting the door of the courts to those who are55damaged in that way

END QUOTE.
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2005/12.html?stem=0&synonyms=0&query=title(D%27Orta-Ekenaike%20)#fn298http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2005/12.html?stem=0&synonyms=0&query=title(D%27Orta-Ekenaike%20)#fn298http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2005/12.html?stem=0&synonyms=0&query=title(D%27Orta-Ekenaike%20)#fn298http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2005/12.html?stem=0&synonyms=0&query=title(D%27Orta-Ekenaike%20)#fn299http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2005/12.html?stem=0&synonyms=0&query=title(D%27Orta-Ekenaike%20)#fn299http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2005/12.html?stem=0&synonyms=0&query=title(D%27Orta-Ekenaike%20)#fn299http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2005/12.html?stem=0&synonyms=0&query=title(D%27Orta-Ekenaike%20)#fn299http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2005/12.html?stem=0&synonyms=0&query=title(D%27Orta-Ekenaike%20)#fn298

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D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1; (2005) 214 ALR 92; (2005) 79 ALJR755 (10 March 2005)

QUOTE

Legal professional liability by statute in 1891 and today

272. How the question arises: It is obvious that, if the 1958 Act makes relevant5

provision for the liability in negligence of legal practitioners in Victoria, its terms

must (to that extent) be obeyed, whatever may be the common law of Australia on

the subject. The starting point in resolving the present application is therefore thestatute. No issue was raised as to its constitutional validity.

END QUOTE10

In my view the D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1;

(2005) 214 ALR 92; (2005) 79 ALJR 755 (10 March 2005) was misconceived as it and so other

cases relied upon seemed to overlook that whatever was enacted by the State of Victoria in 1891

by a sovereign Parliament was to be reconsidered where since federation it became a15

constitutional Parliament subject to the constitution of the federation with its embedded legal

principles..

HANSARD 10-03-1891 Constitution Convention DebatesQUOTE20Dr. COCKBURN:All our experience hitherto has been under the condition of parliamentary

sovereignty. Parliament has been the supreme body. But when we embark on federation we throw

parliamentary sovereignty overboard. Parliament is no longer supreme. Our parliaments at present are

not only legislative, but constituent bodies. They have not only the power of legislation, but the power

of amending their constitutions. That must disappear at once on the abolition of parliamentary25sovereignty. No parliament under a federation can be a constituent body; it will cease to have the

power of changing its constitution at its own will.Again, instead of parliament being supreme, the

parliaments of a federation are coordinate bodies-the main power is split up, instead of being vested in

one body. More than all that, there is this difference: When parliamentary sovereignty is dispensed

with, instead of there being a high court of parliament, you bring into existence a powerful judiciary30which towers above all powers, legislative and executive, and which is the sole arbiter and interpreter

of the constitution.END QUOTE

HANSARD 19-4-1897Constitution Convention35QUOTE 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 QUOTE40

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 the45provisions 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

HANSARD 17-3-1898 Constitution Convention Debates50QUOTE

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 QUOTE55.


QUOTEMr. DEAKIN.-

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What a charter of liberty is embraced within this Bill-of political liberty and religious liberty-the

liberty and the means to achieve all to which men in these days can reasonably aspire . A charter of

liberty is enshrined in this Constitution, which is also a charter of peace-of peace, order, and good

government for the whole of the peoples whom it will embrace and unite. END QUOTE5.


QUOTE

Mr. SYMON (South Australia).- We who are assembled in this Convention are about to commit to the

people of Australia a new charter of union and liberty; we are about to commit this new Magna Charta10 for their acceptance and confirmation, and I can conceive of nothing of greater magnitude in the wholehistory of the peoples of the world than this question upon which we are about to invite the peoples of

Australia to vote.The Great Charter was wrung by the barons of England from a reluctant king.This new

charter is to be given by the people of Australia to themselves .

END QUOTE15

It should also be understood thatRondel v Worsley [1967] UKHL 5 (22 November 1967 (House

of lords) cannot be relied upon as an authority in that it is not bound by the legal principlesembedded in the Commonwealth of Australia Constitution Act 1900 (UK) within which in s106

the States were created subject to this constitution.20.

HANSARD 30-3-1897Constitution Convention Debates

QUOTE

Dr. COCKBURN: Much as I desire to follow Mr. Reid in his desire to make a model Parliament after

the pattern of England, I do not think it can be done, for you cannot make a Federation out of a unification.25However much we may admire the Government of England as a pattern, it is altogether foreign to the

genius of Federation. It is carried on under a Parliamentary sovereignty, which is absolutely opposed to the

whole spirit of Federation. In the very essence of the compact it is impossible.

END QUOTE30

Hansard22-2-1898 Constitution Convention Debates

QUOTE Mr. SYMON (South Australia).-

That this is not like an Act of Parliament which we are passing. It is not in the position which Mr. Barton has

described, of choosing or setting up a code of laws to interpret the common law of England. ThisConstitution we are framing is not yet passed. It has to be handed over not to a Convention similar to35this, not to a small select body of legislators, but to the whole body of the people for their acceptance or

rejection. It is the whole body of the people whose understanding you have to bring to bear upon it, and

it is the whole body of the people, the more or less instructed body of the people, who have to

understand clearly everything in the Constitution, which affects them for weal or woe during the whole

time of the existence of this Commonwealth. We cannot have on the platform, when this Constitution is40commended to the people, lawyers on both sides, drawing subtle distinctions, which may or may not be

appreciated by the people.

END QUOTE.

Hansard17-2-1898Constitution Convention Debates45QUOTE

Mr. OCONNOR.-I do not agree with the honorable member in his interpretation of the powers of

the Commonwealth, especially when dealing with the expenditure of the money of the taxpayers. In

such a case there will be a great deal of care taken to keep the nose of the Federal Parliament to the

grindstone in the matter of this expenditure.I do not think any expenditure will be constitutional which50travels outside these limits. We must remember that in any legislation of the Commonwealth we are

dealing with the Constitution. Our own Parliaments do as they think fit almost within any limits. In this

case the Constitution will be above Parliament, and Parliament will have to conform to it. END QUOTE.55The notion that the judiciary is a third part of the government would infringe upon the

impartiality and independence of the judiciary. In my view the Framers of the Constitution

having provided that even the ministers acting for and on behalf of the Monarch can be sued in

certain circumstances never intended to have lawyers to be immune from being sued.60

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Hansard 10-3-1898 Constitution Convention DebatesQUOTE

Mr. BARTON.-One improvement we want in this Constitution is the establishment of a

Commonwealth kindergarten.

Dr. COCKBURN.-There is no doubt we want a lot of common sense as well as a lot of lawyers. 5

END QUOTE

If lawyers are considered part of the judiciary then the Legal Practitioners Act is unconstitutional

and the immunity cannot be held legally enforceable as it interferes with the impartiality of the

judiciary. Legal practitioners act is to provide immunity for lawyers then it would offend the10

Trade and commerceuniform provisions (throughout the commonwealth) of the constitution

and so unconstitutional..

As I have extensively canvassed in past published books in the INSPECTOR-RIKATI series

on certain constitutional and other legal issues The Parliaments (state and federal) can only15

legislate for the peace, order, and good government: Legislating to exclude a certain

profession from being held legally accountable cannot be deemed to be falling within for thepeace, order, and good government!

HANSARD1-4-1891Constitution Convention Debates20QUOTE

Sir SAMUEL GRIFFITH: I agree that these words appear rather startling. [start page 559] They are taken

from the Federal Council Act of Australasia, and were inserted by the imperial authorities after

consideration and in substitution for more limited words that were proposed by the Convention that met here

in 1883. Finding those words there, and considering that the powers of the federal parliament are onlyto25make laws for the peace, order, and good government of the commonwealth, it was thought perfectly safe

to adopt them.

Mr. BAKER: Do I understand that if a ship leaves one of the Australian colonies for a British port,

say London, having a British register, until she actually arrives in Great Britain, the laws of the

commonwealth are binding upon her, and not the laws of Great Britain?30

Sir SAMUEL GRIFFITH: No; but laws of the commonwealth, limited to laws for the peace, order,

and good government of the commonwealth, will apply to her on her voyage. For instance, if it was

necessary to send a prisoner to England, only such provisions as are essential for the laws of the

commonwealth outside the 3-mile limit could possibly apply.

END QUOTE35

HANSARD1-4-1891Constitution Convention Debates

QUOTE

Sir SAMUEL GRIFFITH: If the hon. gentleman will look at the bill he will see that the only laws which

can apply are laws for the peace, order, and good government of the commonwealth.40END QUOTE

HANSARD 14-4-1897 Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention)

Mr. BARTON:45

That was the Convention which had, I think, to be called in consequence of the New Guinea affair. Sir

Samuel went on:

Finding those words there, and considering that the powers of the Federal Parliament are only to make

laws for the peace, order, and good government of the Commonwealth, it was thought perfectly safe to

adopt them.50

Sir Samuel Griffith's reply to that interjection was;

No; but laws of the Commonwealth, limited to laws for the peace, order, and good governmentof the

Commonwealth, will apply to her on her voyage. For instance, if it was necessary to send a prisoner to

England, only such provisions as are essential for the laws of the Commonwealth outside the three-mile limitcould possibly apply.55

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120526 JJ Immunity

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