Urgent Julia Gillard Land Taxes

Julia Gillard PM 10-3-2011
C/o R.McClelland.MP@aph.gov.au
5 . Ref: URGENT Unconstitutional State land taxes issue
Cc: Mr Robert Pincevic roblp@bigpond.com
AND TO WHOM IT MAY CONCERN
.
Julia,
10 having lived for some time in Berriwillock (A small rural town in the Mallee – Victoria) I
became aware of the financial plight upon many farmers and others. When then Mr Robert
Pincevic on 31 August 2010 contacted me about being slugged State land Taxes I immediately
that day contacted NSW Premier Kristine Keneally about that in my view State land Taxes was
unconstitutional upon which I received the following response:
15 QUOTE 31 August 2010 correspondence
CMU10-16940
13 September 2010
Mr Gerrit Schorel-Hlavka
schorel-hlavka@schorel-hlavka.com
20
Dear Mr Schorel-Hlavka
I write in response to your recent email to the Premier concerning land tax.
As the matter you have raised concerns the administration of the Treasurer, the Hon
Eric Roozendaal MLC, your email has been forwarded to the Treasurer for attention.
25 You may be sure that your letter will receive close consideration.
Yours sincerely
David Swain
for Director General
END QUOTE
30 .
Then after I complaint I still had not received any proper response I received another respo0nse I
would be provided with a response and finally received this on 8 March 2011 which response has
been reproduced below.
.
35 I refer to it being URGENT because despite that copies of correspondences were also forwarded
to both the then premier John Brumby and now Premier Ted Bailliue neither one of them seemed
to have bothered to address the issue either.
Many farmers and other land holders are in the meantime dragged through the courts for
enforcement of State Land Taxes even so the governments should be aware that they have no
40 constitutional validity in doing so. Lawyers representing land holders (and earning huge amounts
of moneys in the process) obviously neither are competent to appropriately deal with matters and
hence the need to have the OFFICE-OF-THE0-GUARDIAN to address issues like this
urgently. The OFFICE-OF-THE-GUARD being a constitutional council to advise the
Government, the People, the Parliament and the courts as to constitutional meaning and
45 applications. We cannot have that politicians knowingly and deliberately maintain
unconstitutional taxes and in the process ruin landholders by relying on that the government can
use consolidated revenue to thwart any attempt to pursue justice through the courts by engaging
highly paid lawyers. THIS MUST STOP!
The OFFICE-OF-THE-GUARD needs to be urgently part of Australia’s check and balances!
10-3-2011 Page 1 Re unconstitutional State/Territorian Land Taxes

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. help@office-of-the-guardian.com
This response took them more then 6 months to come to? Surely a total disregard to the plight of
all landholders!
5
As you may be aware the High court of australia made a ruling that “Income tax” is a exclusive
legislative powers of the Commonwealth and the States no longer can raise “income tax” once
the commonwealth commenced to raise “income tax”. The same is with “land tax” the moment
the commonwealth commenced to legislate for land tax in 1910 then the States no longer could
5 do so.
.
As a CONSTITUTIONALIST I have extensively researched constitutional powers and will
reproduce come material previously forwarded to Premier Kristine Keneally (below) as to
indicate that the appalling 2 March 2011 response was disregarding any details I provided.
10 .
Hansard 1-3-1898 Constitution Convention Debates
QUOTE
Mr. HIGGINS.-Suppose the sentry is asleep, or is in the swim with the other power?
Mr. GORDON.-There will be more than one sentry. In the case of a federal law, every member
15 of a state Parliament will be a sentry, and, every constituent of a state Parliament will be a
sentry. As regards a law passed by a state, every man in the Federal Parliament will be a
sentry, and the whole constituency behind the Federal Parliament will be a sentry.
END QUOTE
Well, you and others are also sentries and cannot disregard your duties and obligations in that
20 regard.
You too should be deemed legally liable to have permitted this unconstitutional land taxes
system to continue under your watch as you have an obligation to act for the People to stop such
a rot.
HANSARD 17-3-1898 Constitution Convention Debates
25 QUOTE
Mr. BARTON.-this Constitution is to be worked under a system of responsible government
END QUOTE
And
30 QUOTE
Mr. BARTON.- We have simply said that the guarantee of the liberalism of this Constitution is
responsible government, and that we decline to impair or to infect in any way that guarantee.
END QUOTE
And
35 HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
Mr. BARTON.- Of course it will be argued that this Constitution will have been made by the
Parliament of the United Kingdom. That will be true in one sense, but not true in effect, because the
provisions of this Constitution, the principles which it embodies, and the details of enactment by which
40 those principles are enforced, will all have been the work of Australians.
END QUOTE
And
QUOTE
45 Mr. BARTON.- Having provided in that way for a free Constitution, we have provided for an
Executive which is charged with the duty of maintaining the provisions of that Constitution; and,
therefore, it can only act as the agents of the people.
END QUOTE
Again there are numerous landholders who are struggling financially, and so also those affected
50 by recent floods even more, and yet it appears you have been so to say sitting on your hand to
permit this injustice to continue rather then to take action and deal with this.
This is not a matter for the courts to resolve because to take this opposition is TYRANNY where
the government becomes the oppressor! This is a matter that never should have eventuated in the
first place as clearly there are currently no check and balances to avoid this and hence the need
55 for the OFFICE-OF-THE-GUARD being a constitutional council to advise the Government,
the People, the Parliament and the courts as to constitutional meaning and applications.

It is not for the ordinary citizen to prove he doesn’t have to pay certain taxes rather it is up for the
respective government to prove he (the citizens) should pay certain taxes.
.
What is clearly wrong with the States position is that it assumes that somehow Commonwealth
5 exclusive legislative powers was returned to the States. Constitutionally no such thing can
eventuate. Once it becomes Commonwealth legislative powers it becomes exclusive
Commonwealth legislative powers and the fact that the Commonwealth may not exercise any
longer the exclusive legislative powers is of no impact as the constitution doesn’t permit any
return of exclusive Commonwealth legislative powers back to the States.
10 At most the Commonwealth could permit states to collect taxes on its behalf but then only if this
is uniform, this clearly never eventuated as each State had its own kind of State land taxes levy.
Neither can retrospective legislation be applied as the Framers of the Constitution made clear you
cannot turn a honest man into a criminal by retrospective legislation, and as such you cannot
make a person to be liable for Commonwealth taxation that were not applicable since the
15 Commonwealth abolished land taxes in 1952.
.
Obviously one has to question the competence of the numerous lawyers who earned a lot of
money from their clients in regard of State land taxes cases and yet none seemed to
understand/comprehend that State land taxes were unconstitutional.
20 This matter is very URGENT because each day that is passing numerous landholders are
wrongly dispossessed of their properties in regard of State land taxes, etc, when this should never
be allowed to eventuate.
Clearly there is no check and balances and where we now have any government to act as
TERRORIST to persist no matter how unconstitutional to maintain its TERRORISM upon
25 citizens rather then to accept that the RULE OF LAW (the federation and so its constitution)
should prevail!
.
In my view the Federal Attorney-General should immediately seek to intervene in all and any
court cases that are before the Courts regarding State land taxes so that no one in the meantime is
30 suffering further harm because the judges so neither understand/comprehend the
unconstitutionality and so the illegality of State land Taxes.
.
QUOTE Sir JOHN DOWNER.-
35 I think we might, on the attempt to found this great Commonwealth, just advance one step, not beyond
the substance of the legislation, but beyond the form of the legislation, of the different colonies, and say
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.
40 END QUOTE
Let’s hold those who defied the constitution accountable because this is the only way we can be
assured that we will have a proper representation in the Parliaments. We cannot sit by and allow
landholders so to say being slaughtered because politicians find it more suitable for them to so to
say stretch matters as long as they can and in the mean time reap the benefits of their illegality so
45 perhaps they can succeed in a upcoming election. THIS MUST STOP!
We, the people, demand that you and others act as “agents” for the People and immediately
comply with the duties and obligations as a “sentry” to ensure that any unconstitutional State
land tax is aborted immediately.
While I estimate this may involve perhaps a $35 billion or more concerning all States this to me
50 is not relevant because as the Framers of the Constitution made clear any unconstitutional taxes
raised MUST be refunded to the taxpayers. If we allow for States to deliberately maximize their
unconstitutional conduct then we have anarchy and no democracy and the constitution is no
more. Likewise then we have no proper representative government because they are all turned
into dictatorship and tyrants!
55 .
QUOTE 31-8-2010 correspondence to NSW Premier Kristine Keneally
Premier Kristina Keneally 31-8-2010
<thepremier@www.nsw.gov.au>
.
Cc: * Mr John Brumby, Premier, john.brumby@parliament.vic.gov.au
5 * Mr Ted Baillieu Leader of Her Majesty Opposition ted.baillieu@parliament.vic.gov.au
* Mr Rob Hulls rob.hulls@parliament.vic.gov.au
* Prof David de Kretser, Governor of Victoria
C/o john.brumby@parliament.vic.gov.au
* Mr Robert Pincevic
10 .
Re: State Land tax - etc
.
Kristina,
15 As a CONSTITUTIONALIST and Author of books in the INSPECTOR-RIKATI® series
on certain constitutional and other legal issues my issue is foremost what is constitutionally
appropriate and for this direct myself to you.
.
I do point out that I am not in any capacity acting for Mr Robert Pincevic but he is aware that I
20 am writing to you and reveals his identity.
I was contacted by Mr Robert Pincevic (NSW resident) regarding the 22 June 2010 Land Tax
issue correspondence from Richard Brown for Tony Newbury Chief Commissioner of State
Revenue correctly pointed out that within s.106 of the constitution (The Commonwealth of
25 Australia Constitution Act 1900 (UK)), the States “subject to this constitution” are entitled to
legislate in matters. I personally cannot see any difficulties then with any NSW legal provisions
then to legislate in 1902 (provided the NSW constitution was validly amended) in regard of land
taxes, however what Richard Brown seems to ignore is the very term “subject to this
constitution” meaning that s.51 only permits the States to legislate as to Land Tax until the
30 Commonwealth legislate for this and then the moment the Commonwealth does it no longer is a
legislative power for the States. As such where the Commonwealth commenced to legislate and
in 1910 became the dominant legislator I have the view that then the States no longer had this
legislative power and the fact that the Commonwealth in 1952 abolished land taxes cannot revert
the legislative powers back to the States as the constitution doesn’t allow for this.
35 .
The Australian Taxation commission has the following publications:
http://www.ato.gov.au/print.asp?doc=/content/00229146.htm&page=6#P53_3984
QUOTE
The ATO's beginning
40 November 11, 1910 was a special day in Australia's history because it heralded a new era of national unity.
On this day the Land Tax Office was established as a branch of Treasury, in a time of political tensions and
power struggle. Its purpose was to provide a central collection office to fund old age and invalid pensions.
Although federation was almost a decade old, there were still political, social and economic rivalries among
States because each considered itself a separate entity.
45 Andrew Fisher’s Labor government needed an instrument to collect funds for its social policies and it
campaigned for a Land Tax to target landowners who avoided paying tax on unimproved land.
Despite rigorous opposition from English investors and wealthy private landowners, the first Land Tax Act was
successfully introduced in 1910.
END QUOTE
50 .
http://www.ato.gov.au/print.asp?doc=/content/00229146.htm&page=6#P53_3984
QUOTE
In this decade:
1952 Federal Land Tax was abolished.
END QUOTE
.
As such it must be clear that from 1910 till 1952 the Commonwealth of Australia formally
legislated for and collected land Taxes.
5 The issue at hand therefore is if the States could validly legislate as to Land Taxes once the
Commonwealth abolished its LAND TAXES legislation in 1952.
.
In my view, as a CONSTITUTIONALIST, The State no longer could retrieve any legislative
powers as such to legislate for their own respective states for land Tax and hence all and any
10 such taxes must be repaid. The Framers of the constitution made clear that any taxes raised
unconstitutionally was to be repaid to those who had paid the tax.
.
For long I have campaigned for the government of all levels to have the OFFICE-OF-THE-
GUARDIAN, as a impartial, non-political advisor for the government, the people, the parliament
15 and the courts as to explain what is constitutionally permissible and what is not. Regretfully no
government has as yet taken up this offer/suggestion and as such no government can now excuse
itself if it has to repay land taxes as it now learns a lesson not to be ignorant to the constitution,
its meaning and application.
.
20 Below I will provide quotations and it will show that taxation must be uniform once it become
federal legislation and that the States no longer can exercise any legislative powers upon the
subject matter as soon as the commonwealth commences to do so.
It should be understood however that with regard of taxation the States can exercise legislative
powers on subjects the Commonwealth did not legislate upon.
25 .
The issue is that once the Commonwealth commenced to legislate as to Land Taxes then the
States no longer could legislate in regard of this. The constitution by way of s.51(xxvii) does
allow the States to refer legislative powers to the Commonwealth but not visa versa. It means
that when the Commonwealth abolished Land Tax legislation it nevertheless remained a federal
30 legislative power and the States therefore were prohibited to legislate as to land Taxation.
The Commonwealth could have authorised the States to “collect” Land Taxes, but because it had
become since 1910 a Commonwealth legislative power the States themselves therefore couldn’t
legislate as to create their own Land Taxation and also all taxes raised from land Taxation would
have to go into Commonwealth revenue funds and more over every State would have to have a
35 land Tax that was “throughout the Commonwealth” the same. As such different Land Taxes in
different States would be unconstitutional.
.
http://www.austlii.edu.au/cgi -
bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=%22thi+act+and+all+law+made+by+the+parliament%22#fn50
40 QUOTE
Constitutional interpretation
The starting point for a principled interpretation of the Constitution is the
search for the intention of its makers[51].
END QUOTE
45 .
Within Section 51 of the constitution both the States and the commonwealth have certain
legislative powers however as the Framers of the constitution stated:
.
50 QUOTE
Mr. REID
The object is this, that for some time to come it will not be possible for the Federal
Legislature to pass laws on these subjects, and it is necessary to have some laws on
them-the state laws if they exist-until federal laws are enacted; but the moment a

federal law is passed on any one of these subjects, under the provision under the head
of "States" the federal law prevails over the state law.
END QUOTE
.
5 Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE
Mr. BARTON.-They do not require to get authority from home, for this reason:
That the local Constitutions empower the colonies separately to make laws for the
10 peace, order, and good government of the community, and that is without restriction,
except such small restrictions as are imposed by the Constitutions themselves, and, of
course, the necessary restriction that they can only legislate for their own territory.
The position with regard to this Constitution is that
it has no legislative power, except that which is
15 actually given to it in express terms or which is
necessary or incidental to a power given.
END QUOTE
.
20 QUOTE
Mr. DEAKIN.-My point is that by the requests of different colonies at different times
you may arrive at a position in which all the colonies have adopted a particular law, and it
is necessary for the working of that law that certain fees, charges, or taxation should be
imposed. That law now relates to the whole of the Union, because every state has come
25 under it. As I read clause 52, the Federal Parliament will have no power, until the law
has thus become absolutely federal, to impose taxation to provide the necessary
revenue for carrying out that law. Another difficulty of the sub-section is the question
whether, even when a state has referred a matter to the federal authority, and federal
legislation takes place on it, it has any-and if any, what-power of amending or
30 repealing the law by which it referred the question? I should be inclined to think it
had no such power, but the question has been raised, and should be settled. I should
say that, having appealed to Caesar, it must be bound by the judgment of Caesar, and
that it would not be possible for it afterwards to revoke its reference.
END QUOTE
35 .
HANSARD18-2-1898 Constitution Convention Debates
QUOTE Mr. ISAACS.-
The right of a citizen of this great country, protected by the implied guarantees of its
Constitution,
40 END QUOTE
.
QUOTE
Mr. HIGGINS.-But suppose they go beyond their power?
45
Mr. GORDON.-It is still the expression of Parliament. Directly a Ministry seeks to
enforce improperly any law the citizen has his right.
END QUOTE
.
50 Hansard 19-4-1897 Constitution Convention Debates
QUOTE Mr. CARRUTHERS:
This is a Constitution which the unlettered people of the community ought to be able
to understand.
END QUOTE
.
QUOTE Mr. SYMON (South Australia).-
That this is not like an Act of Parliament which we are passing. It is not in the position
5 which Mr. Barton has described, of choosing or setting up a code of laws to interpret the
common law of England. This Constitution we are framing is not yet passed. It has to
be handed over not to a Convention similar to this, 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,
10 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 is commended to the people, lawyers on
both sides, drawing subtle distinctions, which may or may not be appreciated by the
15 people.
END QUOTE
.
QUOTE
20 The Hon. R.E. O'CONNOR (New South Wales)[3.18]: The moment the
commonwealth exercises the power, the states must retire from that field of
legislation.
END QUOTE
.
QUOTE Mr. REID:
We must make it clear that the moment the Federal Parliament legislates on one of
those points enumerated in clause 52, that instant the whole State law on the subject is
dead. There cannot be two laws, one Federal and one State, on the same subject. But
30 that I merely mention as almost a verbal criticism, because there is no doubt,
whatever that the intention of the framers was not to propose any complication of the
kind.
END QUOTE
.
QUOTE
The Hon. R.E. O'CONNOR (New South Wales)[3.18]: We ought to be careful not to load
the commonwealth with any more duties than are absolutely necessary. Although it is
quite true that this power is permissive, you will always find that if once power is
40 given to the commonwealth to legislate on a particular question, there will be
continual pressure brought to bear on the commonwealth to exercise that power. The
moment the commonwealth exercises the power, the states must retire from that field
of legislation.
END QUOTE
45 .
QUOTE
Mr. OCONNOR.-Directly it is exercised it becomes an exclusive power, and there is
no doubt that it will be exercised.
50 END QUOTE
.
QUOTE Mr. BARTON.-
Under a Constitution like this, the withholding of a power from the
55 Commonwealth is a prohibition against the exercise of such a power.
END QUOTE
.
QUOTE Mr. GORDON.-
The court may say-"It is a good law, but as it technically infringes on
the Constitution we will have to wipe it out."
END QUOTE
5 .
QUOTE Mr. BARTON.-
The position with regard to this Constitution is that it has no legislative
power, except that which is actually given to it in express terms or which is
10 necessary or incidental to a power given.
END QUOTE
.
QUOTE
15 start page 1020] I think that we ought to be satisfied on these points, and satisfied that
if we leave the clause as it now stands there will, at any rate, be some proviso inserted
which will safeguard the states in the carrying out of any of their state laws over
which the states are to be supreme even under federation.
END QUOTE
20 .
QUOTE Mr. ISAACS (Victoria).-
In the next sub-section it is provided that all taxation shall be uniform throughout the
Commonwealth. An income tax or a property tax raised under any federal law must
25 be uniform "throughout the Commonwealth." That is, in every part of the
Commonwealth.
END QUOTE
.
30 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.
END QUOTE
.
QUOTE
Sir GEORGE TURNER: No. In imposing uniform duties of Customs it should not be
necessary for the Federal Parliament to make them commence at a certain amount at once.
We have pretty heavy duties in Victoria, and if the uniform tariff largely reduces them at
40 once it may do serious injury to the colony. The Federal Parliament will have power to
fix the uniform tariff, and if any reductions made are on a sliding scale great injury
will be avoided.
END QUOTE
.
QUOTE Mr. BARTON.-
But it is a fair corollary to the provision for dealing with the revenue for the first five years
after the imposition of uniform duties of customs, and further reflection has led me to the
conclusion that, on the whole, it will be a useful and beneficial provision.
50 END QUOTE
.
QUOTE Mr. BARTON.-
On the other hand, the power of the Commonwealth to impose duties of customs and of
55 excise such as it may determine, which insures that these duties of customs and excise
would represent something like the average opinion of the Commonwealth-that power, and
the provision that bounties are to be uniform throughout the Commonwealth, might, I
am willing to concede, be found to work with some hardship upon the states for some
years, unless their own rights to give bounties were to some extent preserved.
END QUOTE
.
QUOTE Sir SAMUEL GRIFFITH:
2. Customs and excise and bounties, but so that duties of customs and excise and bounties
shall be uniform throughout the commonwealth, and that no tax or duty shall be imposed
on any goods exported from one state to another;
10 END QUOTE
.
QUOTE The CHAIRMAN.-
Taxation; but so that all taxation shall he uniform throughout the Commonwealth, and
15 that no tax or duty shall be imposed on any goods passing from one state to another.
END QUOTE
.
Rest assured there are ample of other quotations I can rely upon.
As Mr Robert Pincevic sought my views about the constitutional issue of Land Taxes by the
20 States I held it appropriately to write to you directly so you can immediately, and so without
delay, stop any unconstitutional taxation, and face reality that all States, not just NSW,
constitutionally are require to refund all unconstitutionally collected Land Taxes.
.
25 QUOTE
Mr. HIGGINS.-Suppose the sentry is asleep, or is in the swim with the other
power?
Mr. GORDON.-There will be more than one sentry. In the case of a federal
law, every member of a state Parliament will be a sentry, and, every constituent
30 of a state Parliament will be a sentry. As regards a law passed by a state, every
man in the Federal Parliament will be a sentry, and the whole constituency
behind the Federal Parliament will be a sentry.
END QUOTE
.
QUOTE Mr. THYNNE:
The constitution of this federation will not be charged with the duty of resisting
privileged classes, for the whole power will be vested in the people themselves. They
are the complete legislative power of the whole of these colonies, and they shall be so.
40 From [start page 106] them will rise, first of all, the federal constitution which we are
proposing to establish, and in the next place will come the legislative powers of the several
colonies. The people will be the authority above and beyond the separate legislatures,
and the royal prerogative exercised, in their interest and for their benefit, by the advice of
their ministers will be practically vested in them. They will exercise the sovereignty of the
45 states, they will be charged with the full power and dignity of the state, and it is from them
that we must seek the giving to each of those bodies that will be in existence concurrently
the necessary powers for their proper management and existence. Each assembly, each
legislature, whether state or federal existing under this constitution, will be as Dicey
again says-a merely subordinate law-making body whose laws will be valid, whilst
50 within the authority conferred upon it by the constitution, but invalid and
unconstitutional if they go beyond the limits of such authority.
END QUOTE
.
55 QUOTE Mr. CARRUTHERS (New South Wales).-
10-3-20 11 Page 10 Re unconstitutional State/Territorian Land Taxes

It does not require a majority of the states to insist that the constitution shall be
obeyed, because a majority of the states cannot by resolution infringe the constitution.
END QUOTE
.
QUOTE
Mr. WISE.-If the Federal Parliament chose to legislate upon, say, the education
question-and the Constitution gives it no power to legislate in regard to that question-the
Ministers for the time being in each state might say-"We are favorable to this law, because
10 we shall get £100,000 a year, or so much a year, from the Federal Government as a subsidy
for our schools," and thus they might wink at a violation of the Constitution, while no
one could complain. If this is to be allowed, why should we have these elaborate
provisions for the amendment of the Constitution? Why should we not say that the
Constitution may be amended in any way that the Ministries of the several colonies
15 may unanimously agree? Why have this provision for a referendum? Why consult the
people at all? Why not leave this matter to the Ministers of the day? But the proposal
has a more serious aspect, and for that reason only I will ask permission to occupy a
few minutes in discussing it.
END QUOTE
20 .
QUOTE Sir JOHN DOWNER.-
I think we might, on the attempt to found this great Commonwealth, just advance one
step, not beyond the substance of the legislation, but beyond the form of the
25 legislation, of the different colonies, and say 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
30 .
As I understand it the demands made upon not just Mr Robert Pincevic but also other land
holders to pay State land taxes is unconstitutional and in my view each and every Minister
involved directly and/or indirectly to this might be sued for their involvement. Meaning that if it
is Mr Robert Pincevic or any other landholder who is caused emotional, mental and or indirect
35 or direct financial harm due to State Land Taxes being enforced against a land holder then we
may just see some Ministers being personally sued for this.
.
In my view it is irrelevant if a Minister may claim that the Parliament legislated for State land
Taxes as they are responsible for their Department and if any government disregard to consult
40 the OFFICE–OF-THE-GUARDIAN and takes it upon itself to raise unconstitutionally State
land taxes then I view the full force of the law must be used against those Ministers who take the
law into their own hands.
.
45 QUOTE Mr. BARTON.-
Providing, as this Constitution does, for a free people to elect a free Parliament-giving
that people through their Parliament the power of the purse-laying at their mercy
from day to day the existence of any Ministry which dares by corruption, or drifts
through ignorance into, the commission of any act which is unfavorable to the people
50 having this security, it must in its very essence be a free Constitution. Whatever any
one may say to the contrary that is secured in the very way in which the freedom of
the British Constitution is secured. It is secured by vesting in the people, through their
representatives, the power of the purse, and I venture [start page 2477] to say there is
no other way of securing absolute freedom to a people than that, unless you make a
55 different kind of Executive than that which we contemplate, and then overload your
Constitution with legislative provisions to protect the citizen from interference. Under
this Constitution he is saved from every kind of interference. Under this Constitution
he has his voice not only in the, daily government of the country, but in the daily
determination of the question of whom is the Government to consist. There is the
guarantee of freedom in this Constitution. There is the guarantee which none of us
5 have sought to remove, but every one has sought to strengthen. How we or our work
can be accused of not providing for the popular liberty is something which I hope the
critics will now venture to explain, and I think I have made their work difficult for
them. Having provided in that way for a free Constitution, we have provided for an
Executive which is charged with the duty of maintaining the provisions of that
10 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 dealt with by a Federal
Judiciary and it will also be a High Court of Appeal for all courts in the states that
choose to resort to it. In doing these things, have we not provided, first, that our
15 Constitution shall be free: next, that its government shall be by the will of the people,
which is the just result of their freedom: thirdly, that the Constitution shall not, nor shall
any of its provisions, be twisted or perverted, inasmuch as a court appointed by their
own Executive, but acting independently, is to decide what is a perversion of its
provisions? We can have every faith in the constitution of that tribunal. It is appointed as
20 the arbiter of the Constitution. It is appointed not to be above the Constitution, for no
citizen is above it, but under it; but it is appointed for the purpose of saying that those
who are the instruments of the Constitution-the Government and the Parliament of
the day-shall not become the masters of those whom, as to the Constitution, they are
bound to serve. What I mean is this: That if you, after making a Constitution of this
25 kind, enable any Government or any Parliament to twist or infringe its provisions,
then by slow degrees you may have that Constitution-if not altered in terms-so
whittled away in operation that the guarantees of freedom which it gives your people
will not be maintained; and so, in the highest sense, the court you are creating here,
which is to be the final interpreter of that Constitution, will be such a tribunal as will
30 preserve the popular liberty in all these regards, and will prevent, under any pretext
of constitutional action, the Commonwealth from dominating the states, or the states
from usurping the sphere of the Commonwealth. Having provided for all these things,
I think this Convention has done well.
END QUOTE
35 .
Again Premiers are failing to stand rigid against the Commonwealth to make clear that this
nonsense should stop. And the States themselves must also keep in mind that governments are to
be for the people! All government must show they are but acting as agents for the electors! As
such not to act as if they personal own it all!
40 .
The Victorian Attorney-General has been aware for several years now about the issue of the
OFFICE-OF-THE-GUARDIAN, however has failed to act upon this and now may face multi
billion dollar repayments which also may be the fall of the government if people discover that
this was a blatant disregard to constitutional limitations.
45 .
QUOTE Mr. ISAACS.-
We want a people's Constitution, not a lawyers' Constitution.
END QUOTE
50 .
Effectively what it means is that if you are seeking advice of lawyers who call themselves
constitutionalist but have no clue what really is constitutionally applicable and permissible then
you are going to be misled. That is also why I defeat them in court because they just do not
understand/comprehend what is constitutionally applicable/permissible.
55 .

I understand Mr Robert Pincevic is not caused undue hardship by the land tax issue and it
seems to me that not just him alone but everyone else faced with a land Tax issue should for the
moment in the interim be left alone and stop any kind of enforcement procedures, regardless if
there are court orders in place, this because no court can enforce unconstitutional legislation and
5 as such if you discover that indeed the State land taxes are unconstitutional then any court orders
in regard of State land taxes, interest and other associated cost including court cost all will be
NULL AND VOID (ULTRA VIRES). And again those ministers responsible (including
premiers) could face a class action suit to be personally sued for damages as they acted without
lawful authority as if it is unconstitutional then no unconstitutional parliamentarian legislation
10 can make it valid in law.
Ok all State budgets may now be up the creek but let’s be honest about it if you lot had listen to
me long ago then at least you could have acted earlier to address the issue. I know that many will
ignore my advice and then discover they ended up in a lot more problems. Perhaps now you may
just realise that it would have made more sense to have had for all levels of Government a
15 OFFICE-OF-THE-GUARDIAN and would you really want to continue without the advice of
the OFFICE-OF-THE-GUARDIAN and end up in a lot more rot?
.
Just consider that if every landowner just gave me $1.00 for my work to expose this rot then I be
a multi millionaire several times over. Gosh, to think I provide you with all this information for
20 free, so better not then ignore it, would you? And why not pass it on to all other State Premiers
and treasurers? Better now before lawyers, so to say, are banging their doors down for
compensation! And, just in case you think of it, “retrospective” legislation is unconstitutional but
that is another story for now.
.
25 EITHER WE HAVE A CONSTITUTION OR WE DON’T!
.
MAY JUSTICE ALWAYS PREVAIL®

.
Our name is our motto!

30 .
Awaiting your response, G. H. Schorel-Hlavka (Gerrit)

END QUOTE 31-8-2010 correspondence to NSW Premier Kristine Keneally
35 QUOTE 29-9-2010 correspondence to NSW Premier Kristine Keneally

.
Cc: * Mr John Brumby, Premier, john.brumby@parliament.vic.gov.au
40 * Mr Robert Pincevic
.
Kristina,
45 I has been more then 4 weeks since I last wrote to you regarding State land taxes being
unconstitutional since the Commonwealth of Australia commenced to legislate in regard of
LAND TAX and the High Court of Australia underlined this in its judgment.
As I stated in my previous 31 August 2010 correspondence to you; http://www.austlii.edu.au/cgi -
50 QUOTE

The starting point for a principled interpretation of the Constitution is the search for the
intention of its makers[51] .
END QUOTE
.
5 Within Section 51 of the constitution both the States and the Commonwealth have certain
legislative powers however as the Framers of the Constitution stated:
Hansard 21-1-1898 Constitution Convention Debates (Official Record of the Debates of the National
QUOTE Mr. REID
10 The object is this, that for some time to come it will not be possible for the Federal
Legislature to pass laws on these subjects, and it is necessary to have some laws on them-
the state laws if they exist-until federal laws are enacted; but the moment a federal law is
passed on any one of these subjects, under the provision under the head of "States" the
federal law prevails over the state law.
15 END QUOTE
.
QUOTE
The Hon. R.E. O'CONNOR (New South Wales)[3.18]: The moment the commonwealth exercises the
20 power, the states must retire from that field of legislation.
END QUOTE
.
QUOTE Mr. REID:
25 We must make it clear that the moment the Federal Parliament legislates on one of those points
enumerated in clause 52, that instant the whole State law on the subject is dead. There cannot be two
laws, one Federal and one State, on the same subject. But that I merely mention as almost a verbal
criticism, because there is no doubt, whatever that the intention of the framers was not to propose any
complication of the kind.
30 END QUOTE
.
QUOTE
The Hon. R.E. O'CONNOR (New South Wales)[3.18]: We ought to be careful not to load the
35 commonwealth with any more duties than are absolutely necessary. Although it is quite true that this
power is permissive, you will always find that if once power is given to the commonwealth to legislate
on a particular question, there will be continual pressure brought to bear on the commonwealth to
exercise that power. The moment the commonwealth exercises the power, the states must retire from
that field of legislation.
40 END QUOTE
.
QUOTE
Mr. OCONNOR.-Directly it is exercised it becomes an exclusive power, and there is no doubt that it will
45 be exercised.
END QUOTE
For constitutional purposes it isn’t relevant that the Commonwealth of Australia aborted any land
taxes since 1952 by abolishing the legislation as it still was and remained to be an exclusive
federal legislative power
50 .
I thank your office for having provided me with a 13 September 2010 response:
QUOTE
CMU10-16940
13 September 2010
55 Mr Gerrit Schorel-Hlavka
60 As the matter you have raised concerns the administration of the Treasurer, the Hon
You may be sure that your letter will receive close consideration.
Yours sincerely
David Swain
END QUOTE
5 .
As I stated in my previous correspondence also:
QUOTE
As a CONSTITUTIONALIST and Author of books in the INSPECTOR-RIKATI® series on certain
constitutional and other legal issues my issue is foremost what is constitutionally appropriate and for this
10 direct myself to you.
.
I do point out that I am not in any capacity acting for Mr Robert Pincevic but he is aware that I am writing to
you and reveals his identity.
15 I was contacted by Mr Robert Pincevic (NSW resident) regarding the 22 June 2010 Land Tax issue
correspondence from Richard Brown for Tony Newbury Chief Commissioner of State Revenue correctly
pointed out that within s.106 of the constitution (The Commonwealth of Australia Constitution Act 1900
(UK)), the States “subject to this constitution” are entitled to legislate in matters. I personally cannot see any
difficulties then with any NSW legal provisions then to legislate in 1902 (provided the NSW constitution was
20 validly amended) in regard of land taxes, however what Richard Brown seems to ignore is the very term
“subject to this constitution” meaning that s.51 only permits the States to legislate as to Land Tax until the
Commonwealth legislate for this and then the moment the Commonwealth does it no longer is a legislative
power for the States. As such where the Commonwealth commenced to legislate and in 1910 became the
dominant legislator I have the view that then the States no longer had this legislative power and the fact that
25 the Commonwealth in 1952 abolished land taxes cannot revert the legislative powers back to the States as the
constitution doesn’t allow for this.
END QUOTE
.
I am well aware that the Governments (State/Territorial/Federal) may seek to rely upon legal
30 advice of lawyers who may or may not claim to be constitutionalist but the fact is that since 1956
none of them appeared to have understood that the States/Territories couldn’t legislate as to
LAND TAXES. This is because lawyers are so to say trained to think in a certain manner and
this prohibit them to be open minded and consider all relevant issues, not just about
State/Territorial land Taxes as for example the commonwealth in s.388 of the CEA1918 uses
35 “averment” where as on 4 August 2005 I successfully defeated the commonwealth and the Court
ordered the commonwealth to file and serve all evidence it sought to rely upon this as the court
upheld my constitutional submission that the commonwealth cannot interfere in the legal
processes of a State Court by dictating that “AVERMENT” applies. Actually the ATO uses
“averment” in the Supreme Court of NSW even so as I stated this is unconstitutionally
40 interfering in State judicial matters, regardless if the State Court exercises federal jurisdiction.
.
It is my understanding that the ATO in legal proceedings relies upon the Taxation
Administration Act section 8ZL which is as follows:
QUOTE S.8ZL(1)
45 [Prima facie evidence] In a prosecution for the prescribed taxation offence, a statement or averment
contained in the information, claim or complaint is prima facie evidence of the matter so stated or averred.
END QUOTE
.
QUOTE S.8ZL(2)
50 [Application of section] This section applies in relation to any matter so stated or averred although:
(a) evidence in support or rebuttal of the matter stated or averred, or of any other matter, is given; or
(b) the matter averred is a mixed question of law and fact, but in that case, or of any other statement or
averment is prima facie evidence if the fact only.
END QUOTE
55 .
We now look brat the provision of the CEA1918;
Commonwealth Electoral Act 1918
QUOTE
388 Averments deemed to be proved
60 In any prosecution in a court of summary jurisdiction in respect of a contravention of the
provisions of this Act or the regulations relating to compulsory enrolment or compulsory
voting, instituted by an officer or by any person acting under the direction of an officer, the
averments of the prosecutor contained in the information or complaint shall be deemed to be
proved in the absence of evidence to the contrary.
END QUOTE
5 .
I understand that Raelene Susan Vivian Deputy Commissioner of Taxation filed a 1 May 2009
Affidavit (On 4 May 2009) in which she refers to:
QUOTE
The plaintiff pleads her cause of action, and avers and states
10 END QUOTE
.
These pleadings were then responded upon by the Respondents to in general deny the claims.
In point 4 of this Affidavit it was stated
QUOTE
15 The defendants failed to pay income tax for the years of tax ending 30 June 2002, 30 June 2003, 30 June
2004, 30 June 2006, 30 June 2007 and 30 June 2008 on or before the relevant due dates.
END QUOTE
.
It is in my view terrible that even the Supreme Court of NSW isn’t even aware that
20 Commonwealth of Australia legislative provisions cannot interfere with State jurisdictional
matters!
QUOTE
Mr. CLARK: What we want is a separate federal judiciary, allowing the state judiciaries to remain
25 under their own governments.
END QUOTE
.
QUOTE Mr. SYMON.-
30 Then, I think myself, some confusion may arise in consequence of the reference to the state in the words
"Proceedings to be taken against the Commonwealth or a state in all cases within the limits of the judicial
power." Now, it does not appear to me that we ought to interfere in any way with the functions of a state
to regulate the proceedings which it, as a quasi-independent political entity, may prescribe for the
regulation of its own legal proceedings.
35 END QUOTE
.
As a CONSTITUTIONALIST I obviously have to consider the intentions of the Framers of the
Constitution where the ATO is about “Income Tax” of all sources, the same can be argued about
the issue of the word “INCOME”:
QUOTE
Sir GEORGE TURNER: One might depend entirely on the other.
Mr. BARTON: That would not be a case of two separable propositions.
Sir GEORGE TURNER: Take the Land and Income Tax Bill.
45 Mr. BARTON: They are proposals which should never be in one Bill together. If there are two
propositions more dissimilar in their incidence than a land and an income tax they are hard to suggest.
One of them-the income tax-comes from the earnings or profits of the people, or of that portion of the
people who, I was almost guilty of saying, are to "hump the swag"-at any rate they are to bear the
burden. But the other-if a tax on the unimproved value of land-has no relation to the earnings or the
50 thrift or the solvency of the person owning the land, and taxes that land on its unimproved value
whether the owner makes a profit out of it or not. I am not attacking these forms of taxation, but I do
say this: that it is impossible to imagine two taxes more diverse their very root, and I think Sir George
Turner could not have selected a better example of two taxes which ought not to be included in one Bill.
I venture to say this is undoubtedly cutting down the right of the Senate to protect the State, and preventing
55 them from voting upon matters that should be put separately. I believe most of these matters have been well,
and fairly dealt with in the Bill of 1891.
END QUOTE
.

If therefore profits of land holdings is not an income and cannot be put in the one Bill then what
is the Tax Assessment Act 1936 about, so the unconstitutional State land tax assessments?
It should be noted;
5 QUOTE Mr. ISAACS (Victoria).-
The words "trade and intercourse" are almost unbounded in their meaning when you appl y them to the
relations of trade and commerce, and, under the proper heads, Baker's Annotated Constitution is full of
instances showing how far-reaching these words are. Then, take the words "throughout the Commonwealth."
The meaning of those words is not restricted to between the states; they refer to every part of the
10 Commonwealth, and I would refer honorable members to earlier portions of the Bill where the same meaning
will have to be given to them. If honorable members will turn to clause 52, which deals with the powers of the
Parliament, they will find that in sub-section (2) the Federal Parliament is empowered to legislate in regard to
customs, excise, and bounties, which shall be uniform "throughout the Commonwealth." That is, within every
state and every part of a state. "Throughout the Commonwealth" is the largest expression that can be used. In
15 the next sub-section it is provided that all taxation shall be uniform throughout the Commonwealth. An
income tax or a property tax raised under any federal law must be uniform "throughout the
Commonwealth." That is, in every part of the Commonwealth.
END QUOTE
.
20 And while on this and any attempts by the states/Territories and/or even the Commonwealth to
legislate “retrospectively” the following ought to be noted:
.
QUOTE
25 Mr. BARTON: I will look into these matters. Notwithstanding the able draughtsmanship of the 1891 Bill,
there are several clauses not quite in their right place in it, and it would be well to alter their order. The
Drafting Committee will look into that matter, and at the end of the proceedings will ask hon. members to
give their attention to such alterations as they may suggest. It will be better to transpose some of the clauses.
With reference to Sir Edward Braddon's amendment, which is put in a better form than that suggested
30 by Mr. Symon, I do not think there is any actual necessity for it. I find in Maxwell on "Interpretation of
Statutes," 1st edition, page 192, this passage:
It is whe re the enactment would prejudicially affect vested rights, or the legal character of past Acts,
that the presumption against a retrospective operation is strongest. Every Statute which takes away or
impairs vested rights acquired under existing laws, or create a new obligation, or imposes a new duty,
35 or attaches a new disability in respect of transactions or considerations already past, must be
presumed, out of respect to the Legislature, to be intended not to have a retrospective operation. Thus
the provision of the Statute of Frauds, that no action should be brought to charge any person on any
agreement made in consideration of marriage, unless the agreement were in writing, was held not to
apply to an agreement which had been made before the Act was passed. The Mortmain Act, in the
40 same way, was held not to apply to a devise made before it was enacted. So it was held that the Act of 8
& 9 Vict., c. 106, which made all wagers void, and enacted that no action should be brought or
maintained for a wager, applied only to wagers made after the Act was passed.
Sir GEORGE TURNER: There is no doubt about those cases, I should say.
Mr. BARTON: In subsequent editions these examples are multiplied. The principle underlying the
45 matter is this: that a court in construing an Act assumes that Parliament never intended to do a thing
which is unjust. I am quite sure that Mr. Symon will agree that the provision is not necessary.
Mr. SYMON: Hear, hear.
END QUOTE
.
QUOTE
Mr. HOLDER.-I have two interjections to answer. I will deal first with that of the Attorney-General of
Victoria. In reply to his statement that this makes the law altogether retrospective, I simply say that the
proposal is to make the law retrospective in this sense: That during the interval throughout which it was,
55 according to the judgment of the court, ultra vires, the decision of the people afterwards could make it intra
vires.
Mr. ISAACS.-That might make persons criminals who were not otherwise criminals. It might not
have been an offence to do a certain thing if the High Court declared the law to be ultra vires, but if that
law was made intra vires from an antecedent date, all the persons who did that thing might be subject
60 to punishment.
END QUOTE
.
QUOTE Mr. ISAACS.-
Unless the honorable member is willing to amend his clause in that respect, we should only complicate
matters, and if retrospective operation were given to it we should be lending ourselves to what would be,
quite unintentionally on the part of the honorable member, a gross injustice.
5 END QUOTE
.
QUOTE
Mr. ISAACS.-But they have already passed a law, and I take it that if you can get an absolute majority of
10 both Houses directing the referendum, there is no practical difference between that and an absolute majority
again passing the law. Because they virtually passed the law as far as they could. Therefore, it seems to me
there is no advantage gained from the stand-point of desiring a better means of getting an amendment of the
Constitution. Then, I feet that it is open to the destructive criticism that it makes the law retrospective, and
after the court, possibly the Privy Council, has decided that the law is ultra vires, and people have acted on
15 that decision, being compelled to, act on that decision, or being compelled to refrain from acting on the
decision of the court, as the law is positive or negative; then we should have under this referendum a law
made operative as from the time of its original passing, and penalties, both personal and pecuniary, might be
incurred through no fault of the individuals who had incurred them. That seems to me to be a defect to which
we cannot close our eyes.
20 Mr. WISE.-Besides, it would punish everybody who took the advice of a man who interpreted the law
properly.
Mr. ISAACS.-It compels everybody who has obeyed the decision of the higher courts to act, or refrain
from acting. That is a position which none of us would willingly get into, and the retrospective action is
wrong.
25 END QUOTE
.
I am concerned that despite my writing of 31 August 2010 I am given the understanding that the
State of NSW State land Tax office nevertheless has persisted in proceedings with its conduct
against the Pincevic’s even so it was also provided by Mr Robert Pincevic with a copy of my 31
30 August 2010 correspondence to you and the response of 13 September 2010 on your behalf.
.
I am well aware that State/Territorial land taxes involves an estimate $35 billion a year
throughout the Commonwealth of Australia but in all fairness I have urged for many years for all
Governments to consult the OFFICE-OF-THE-GUARDIAN about constitutional matters and
35 where then a State/Territory failed to do so then it has inflicted any harm upon not just itself but
also to its residents. It cannot be any excuse therefore for any State/Territorial Government
having to refund all unconstitutional claimed LAND TAXES as the Framers of the Constitution
made clear that any unconstitutional taxes had to be refunded.
Neither can it be held that somehow the States/Territories were colleting LAND TAXES on
40 behalf of the Commonwealth because the Commonwealth is bound to raise any taxes for “the
whole” of the Commonwealth. As the States/Territories collected LAND TAXES in dependent
of each other and as such no LAND TAX was equal throughout the Commonwealth of Australia
then it cannot be deemed that the States/Territories therefore purportedly collected LAND
TAXES on behalf of the Commonwealth.
45 .
Neither can the Commonwealth apply “retrospective” legislation as to try to secure past land
taxes paid since 1952 as being Commonwealth land taxes.
.
Neither can the States/Territories invoke any kind of retrospective legislation because the states
50 are within s.106 “subject to this constitution” and hence the legal principles embedded in the
constitution are also binding upon the States/Territories.
.
QUOTE Mr. OCONNOR (New South Wales).-
55 Of course, when I speak of a state, I include also any territory occupying the position of quasi-state,
which, of course, stands in exactly the same position.
END QUOTE
.
QUOTE
Mr. ISAACS (Victoria).-What I am going to say may be a little out of order, but I would like to draw the
Drafting Committee's attention to the fact that in clause 52, sub-section (2), there has been [start page 1856] a
considerable change. Two matters in that sub-section seem to me to deserve attention. First, it is provided
5 that all taxation shall be uniform throughout the Commonwealth. That means direct as well as indirect
taxation, and the object I apprehend is that there shall be no discrimination between the states; that an
income tax or land tax shall not be made higher in one state than in another. I should like the Drafting
Committee to consider whether saying the tax shall be uniform would not prevent a graduated tax of any
kind? A tax is said to be uniform that falls with the same weight on the same class of property, wherever it is
10 found. It affects all kinds of direct taxation. I am extremely afraid, that if we are not very careful, we shall get
into a difficulty. It might not touch the question of exemption; but any direct tax sought to be imposed
might be held to be unconstitutional, or, in other words, illegal, if it were not absolutely uniform.
END QUOTE
.
15 Where the State land tax office is assessing Mr Robert Pincevic as to his “INCOME” then again
as like Commissioner of Taxation (ATO – for the commonwealth) any income must be
understood as to the meaning of the Framers of the Constitution and not that income is what is
derived from direct and indirect taxable financial benefits, as this offend the Constitution that
only one subject matter can be addressed in any taxation legislation!
20 As such the State’s also fall foul upon how it assesses the unconstitutional State LAND TAXES
being on “INCOME” derived from different sources.
.
As you may be aware there are thousands of ratepayers in clashes with municipal and shire
councils as to the paying of rates, and this too is a matter then may soon so to say blow up in the
25 face of State and Territorial governments, as I have published articles about this in the past. It is
therefore essential that the State government reconsiders how it goes about and in particular how
it pursues objectors who in the end all along may be proven to be right in certain issues but
because the State/Territorial government rely upon legal advisors who may know next to nothing
about what is constitutionally applicable then the State government, other then to provide so to
30 say a gold mine for the lawyers to keep them in a job it doesn’t at all act appropriately for the
general public. Instead of having if not thousands then hundreds of court cases about rates, etc, I
view it would be far more sensible if the State/Territorial governments were to reconsider its
positions and perhaps call an inquiry to assess what is actually constitutionally appropriate. I
will not delve into all the finer details in this correspondence about it but can assure you that you
35 might be in the end horrified citizens have been unduly so to say crucified in courts where they
all along had a rightful position in regard of certain objections but even the judiciary was blind to
it because after all they were all trained in the same manner and so not open-minded to what is
constitutionally applicable and justified.
.
40 QUOTE R. v Sussex Justices, ex parte McCarthy (1924)
'Justice should not only be done, but should manifestly and undoubtedly be seen to be done.'
END QUOTE
.
TAYLOR v. TAYLOR [1979] HCA 38; (1979) 143 CLR 1 (22 August 1979)
45 Similarly in Commissioner of Police v. Tanos (1958) 98 CLR 383, at p 395, Dixon C.J. and
Webb J. said that
QUOTE
it is a deep-rooted principle of the law that before anyone can be punished or prejudiced in his person or
property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of
50 being heard.
END QUOTE
.
Hansard 31-1-1898 Constitution Convention Debates QUOTE Mr. SOLOMON.-
We shall not only look to the Federal Judiciary for the protection of our interests, but also for the just
55 interpretation of the Constitution:
END QUOTE
.
QUOTE Mr. SOLOMON.-

Most of us, when we were candidates for election to the Federal Convention, placed great stress upon it
as affording a means of bringing justice within easy reach of the poor man.
END QUOTE
.
QUOTE Mr. OCONNER (New South Wales).-
Because, as has been said before, it is [start page 357] necessary not only that the administration of
justice should be pure and above suspicion, but that it should be beyond the possibility of suspicion;
END QUOTE
10 .
The following will also make clear that the Framers of the Constitution intended to have CIVIL
RIGHTS and LIBERTIES principles embedded in the Constitution;
QUOTE Mr. CLARK.-
15 for the protection of certain fundamental rights and liberties which every individual citizen is entitled to
claim that the federal government shall take under its protection and secure to him.
END QUOTE
.
HANSARD18-2-1898 Constitution Convention Debates (Official Record of the Debates of the National
20 Australasian Convention)
QUOTE Mr. ISAACS.-
The right of a citizen of this great country, protected by the implied guarantees of its Constitution,
END QUOTE
.
25 What we now have is a considerable disaster where ordinary people were dragged through the
courts, perhaps had their property garnished to pay alleged unpaid land taxes where in the end
the State government could have avoided all this rot to some extend if it had years ago consulted
the OFFICE-OF-THE-GUARDIAN as to constitutional matters. Innocent people in the process
had their lively and perhaps also their lives destroyed and all because State/Territorial
30 governments failed to appropriately consider constitutional matters, and lawyers involved simply
look at matters from their point of view rather from a constitutional point of view what is just and
proper.
As an example; there was the recent Victorian Colosimo case where I (as a professional
35 advocate, Attorney and CONSTITUTIONALIST) took over from the lawyer and despite more
then 20 opponent lawyers being involved in the case proved to the trial judge that Mr Colosimo
actually all along had not at all been in breach of law, even so he was by then was on his 6th
contempt hearing. As a matter of fact, the prosecutor had instituted the legal proceedings
incorrectly as the proceedings, by legislative provisions, only could be instituted in a magistrates
40 court, something all those lawyers never realised over all the years of their litigation against Mr
Colosimo. Also, I got rid of the Administration orders over Mr Colosimo showing that the expert
witnesses simply didn’t know what they were talking about because their (medical) assessments
all had been based upon Mr Colosimo being convicted of contempt, where as in fact I proved he
had not been even formally charged with contempt let alone convicted. As such, what we saw
45 was with all those lawyers involved, including the Office of the Public Advocate, Victorian
Legal Aid none of the lawyers could comprehend you first needed a formally charge a person
before you can hold all those contempt hearings let alone tell a defendant he could be imprisoned
for up to 5 years! His case also related to taxes, FEE SIMPLE, etc. Despite that a County court
judge Her Honour Harbison was presiding over matters she was acting as a Deputy President of
50 VCAT (Victorian civil and Administrative Tribunal) and by this in conflict of her legal duties as
an IMPARTIAL judicial officer of the County Court of Victoria also serving a master being a
State government as a judge but then with the obligation to act in accordance with the
governments policy as previously VCAT member Helen Gibson made clear to Mr Colosimo.
.
QUOTE
Mr. O'CONNOR: You cannot ask a judge to serve two masters.
END QUOTE
In my view no judicial officer can be a judge of a Court of law and also be a judge on a Tribunal
as the Framers of the constitution referred to a retired judge to be dealing with a tribunal.
Likewise so with a Court of disputed Returns as judges acting on a tribunal are causing confusion
5 to the general community who belief to be appearing before a judge in his impartial position as a
judge of a court of law but actually ending up being before a judge of a Tribunal how is acting in
the capacity of “persona designata”
.
10 QUOTE Mr. HIGGINS:
I think it is advisable that private people should not be put to the expense of having important
questions of constitutional law decided out of their own pockets.
END QUOTE
.
15 Yet we find that throughout the Commonwealth of Australia people are seeking to stand up for
their constitutional rights and Mr Robert Pincevic is one of many, and are rebuked for this and
severely castigated in the process as if they do not know what they are talking about where in
fact the courts themselves and the lawyers appearing before it generally haven’t got a clue what
they are talking about because their training during legal studies has prevented them to
20 understand and comprehend the true meaning and application of the (federal) constitution.
Hence, let the State of NSW commence to hold an inquiry so as to curtail all this litigation about
State, municipal and shire rates and for once and for all try to get some proper understanding by
all concerned what is really constitutionally applicable.
.
25 As I understand it there are various groups who so to say are sucking people of their hard earned
monies to protest against rates/taxes and then are no where to be found when a person ends up in
court with the objections and no matter how justified the objectionist might be the courts lack the
knowledge and the skill to appropriately consider constitutional matters because it will be
claimed that as there is legislation then so be it and this is precisely unconstitutional as the courts
30 must consider any objection to legislation as to upon constitutional basis and not merely accept
the word of the government lawyers for it.
.
I will not go into further details about this at this time but save to state that I am horrified as to
the numerous cases that are clogging the courts and I know very well that this got nothing to do
35 with JUSTICE because eventual more then likely the courts will rule against the objector, not
because the objector might be wrong but because we lack any proper system to advise the
Government, the People, the courts and the Parliament as to what is constitutionally applicable.
Hence the OFFICE-OF-THE-GUARDIAN so to say has taken up the baton to do so, not for
individual cases but to try to stop this rot and so in the interest of all concerned. In the meantime
40 I view that all State/Territorial government should call a halt to all litigations and have them all
stayed pending matters to be appropriately considered. Obviously time is of an essence that such
inquiry/investigation is not unduly protracted as you cannot have State/Territorial governments
and/or municipal/shire councils running out of funds while at the same time you cannot persist in
litigation against any citizen who might be constitutionally be in his right!.
QUOTE
Mr. BARTON.- Of course it will be argued that this Constitution will have been made by the
Parliament of the United Kingdom. That will be true in one sense, but not true in effect, because the
provisions of this Constitution, the principles which it embodies, and the details of enactment by which
50 those principles are enforced, will all have been the work of Australians.
END QUOTE
.
QUOTE
55 Mr. BARTON.- Having provided in that way for a free Constitution, we have provided for an
therefore, it can only act as the agents of the people.
END QUOTE
.
EITHER WE HAVE A CONSTITUTION OR WE DON’T! (As you may say; We either have
a constitution or we don’t!)
MAY JUSTICE ALWAYYS PREVAIL® has been operating (without government funding) as
5 a special lifeline service and as such I am well aware of the mental, emotional and financial
hardship caused upon so many to the extend that people contemplate to commit suicide and yet at
least I view it to be so, the State/Territorial government can resolve many of the issues by
holding a proper inquiry so that finally many misconceptions, etc, can be so to say laid to rest.
After all, every suicide cost the community also a lot of money and so why not spend the money
10 in a far better manner and hold an open and transparent inquiry and in the process serve the
constituents as they all along are entitled upon?
.

.
15 Our name is our motto!

.

20 .
QUOTE 5-10-2010 correspondence to vIC Premier John Brumby
Mr John Brumby, Premier 5-10-2010
john.brumby@parliament.vic.gov.au
.
25 Cc: * Mr Ted Baillieu Leader of Her Majesty Opposition ted.baillieu@parliament.vic.gov.au
* Mr Rob Hulls rob.hulls@parliament.vic.gov.au
.
Re: State Land tax – etc AND TO WHOM IT MAY CONCERN
John,
30 as a CONSTITUTIONALIST and Author of books in the INSPECTOR-RIKATI®
series on certain constitutional and other legal issues my concern is foremost what is
constitutionally appropriate and for this direct myself to you. As you are aware of the copy of a
31 August 2010 to Premier Kristina Keneally (NSW) correspondence that I also forwarded to
you in regard the unconstitutional State/Territorian Land Taxes and her office 13 September
35 2010 response being:
QUOTE
CMU10-16940
13 September 2010
40 schorel-hlavka@schorel-hlavka.com
45 Eric Roozendaal MLC, your email has been forwarded to the Treasurer for attention.
Yours sincerely
David Swain
50 END QUOTE
I now request to respond and set out to me what you propose to do, and considering there is a
State election due if this will be addressed prior to the Election, if at all? It should be kept in
mind that the Framers of the constitution made clear that all and any unconstitutional taxation
must be refunded to those who paid it and this clearly will leave a gigantic black hole in the State

budget and this could have been addressed years ago when I recommended to you and the
Attorney General that all and any legislation will be duly checked for its constitutional validity
with the OFFICE OF THE GUARDIAN that is to assist as a council to advise the Government,
the People, the Parliament and the Courts as to the meaning and application of constitutions?
5 Will you take immediate action or refuse to abide by the RULE OF LAW? (constitution s.106)
.

.

10 .

END QUOTE 5-10-2010 correspondence to vIC Premier John Brumby
15
.
20 Cc: * Mr Robert Pincevic
.
Kristina,
25 Mr Anton Pincevic and Mr Robert Pincevic have requested me to urge you for a speedy
answer as to the status of the investigation/consideration of the issues I raised in my 31 August
2010 and subsequent 29-9-2010 correspondences in view that the Department is pursuing them
as to State Land Taxes irrespective of this being constitutionally permissible or not.
QUOTE
30 CMU10-16940
13 September 2010
35 I write in response to your recent email to the Premier concerning land tax.
Yours sincerely
40
David Swain
END QUOTE
.
45 I understand from Mr Anton Pincevic that all he wants is the State to acknowledge that it cannot
pursue him for land taxes as he rather doesn’t want to end up in some legal battle but if the
Government refuses to concede this then he intends to vigorously defend his constitutional rights
in the courts.
.
50 http://www.austlii.edu.au/cgi-
bin/sinodisp/au/cases/cth/HCA/1932/63.html?stem=0&synonyms=0&query=income%20tax

Commissioner of Stamp Duties (NSW) v Millar [1932] HCA 63; (1932)
48 CLR 618 (8 December 1932)
QUOTE
The jurisdiction of the New South Wales Legislature is subject to the Commonwealth of Australia
5 Constitution Act, which distributes powers of legislation between Commonwealth and State
Parliaments. But no question of competing or overriding power arises in this case; and the only ground
upon which the validity of the enactment contained in sec. 103 (1) (b) of the Stamp Duties Act has been
attacked is that it is beyond the territorial jurisdiction of the New South Wales Legislature. Unlike the
powers of the Commonwealth Parliament, those of the New South Wales Parliament are not defined by
10 reference to subject matter, but, subject to the powers of the Commonwealth Parliament, extend to the
peace, welfare and good government of the State in all cases whatsoever.
END QUOTE
.
As pointed out in previous correspondence;
QUOTE
The Hon. R.E. O'CONNOR (New South Wales)[3.18]: The moment the commonwealth exercises the
power, the states must retire from that field of legislation.
END QUOTE
20 .
QUOTE Mr. REID:
We must make it clear that the moment the Federal Parliament legislates on one of those points
25 laws, one Federal and one State, on the same subject. But that I merely mention as almost a verbal
END QUOTE
.
QUOTE
The Hon. R.E. O'CONNOR (New South Wales)[3.18]: We ought to be careful not to load the
commonwealth with any more duties than are absolutely necessary. Although it is quite true that this
35 on a particular question, there will be continual pressure brought to bear on the commonwealth to
that field of legislation.
END QUOTE
.
40 I urge you to forthwith and without any undue delay direct your Department(as) to show due and
appropriate respect and observation the provisions of the constitution and to seize any conduct
against Mr Anton Pincevic and Mr Robert Pincevic in regard of alleged State land taxes.
I understand that the position of Mr Anton Pincevic is that he is entitled to have a proper
response to the issue of the constitutional validity of State land taxes against him as referred to in
45 my various correspondences to you and your Department(s) must show the decency and courtesy
to also await your response. In view of the above and considering the about 3 months that has
passed since I provided you with my 31 August 2010 correspondence I urge you to contact Mr
Anton Pincevic and Mr Robert Pincevic and let them know about the legal status, if any, of the
issues raised by me by forwarding the correspondences to them at c/- 2342 Norther Road,
50 Luddenham NSW 2745 and a electronic copy can be forwarded in the meantime to; “Robert
Pincevic” roblp@bigpond.com. Obviously a copy to be forwarded to myself also at
mayJUSTICEalwaysPREVAIL@schorel-hlavka.com.
.
An about 3-month period surely would be deemed to have been sufficient time to “consider’
55 matters and have communicated back to me details and the fact this never eventuated may
underline that there is perhaps a deliberate tactic to delay matters and this obviously is
unacceptable to both Mr Robert Pincevic and Mr Anton Pincevic and therefore all purported
State land tax demands will be deemed null and void unless the State can prove otherwise. In all

fairness the delay of about 3-months surely in itself underlines a failure of proper
communication.
.

5 .

.

10 END QUOTE 29-11-2010 correspondence to NSW Premier Kristine Keneally

15 .
Cc: * Mr Ted Baillieu Premier ted.baillieu@parliament.vic.gov.au
* Prof David de Kretser, Governor of Victoria C/o ted.baillieu@parliament.vic.gov.au
* Mr Robert Pincevic Robert Pincevic <roblp@bigpond.com>
PO Box 15 Luddenham NSW 2745
20 .
.
Kristina,
25 your office for having provided me with a 13 September 2010 response (in regard of my
31 August 2010 correspondence to you regarding the unconstitutional State land taxes:
QUOTE
CMU10-16940
13 September 2010
30 Mr Gerrit Schorel-Hlavka
35 As the matter you have raised concerns the administration of the Treasurer, the Hon
Yours sincerely
David Swain
40 for Director General
END QUOTE
.
Regretfully since then despite further subsequent correspondences nothing was heard about it.
.
45 Obviously both Mr Robert Pincevic and his father Mr Anton Pincevic have urged me to follow
up the matter in view that your Department is still pestering them about State land taxes.
The former Premier of Victoria Mr John Brumby also ignored to respond appropriately and well
I assisted in the Bentleigh election pursuing that State land Taxes are unconstitutional and
Bentleigh certainly got the message and so to say revolted against the ALP and handed it to the
50 Liberals and consequently Mr Ted Baillieu became premier of the state of Victoria.
Considering that it is now some 4-months since I wrote initially to you and you lacked any
proper response I would not encourage land holders to follow the example of Dr John B. Myers
in Bentleigh to spread the word about the unconstitutional land taxes so that in the upcoming
State election of NSW you may discover this may be a problem you may have wished you had

attended to while you could. When a Government Department requires a response of a citizen
then generally it allows no more but 14 days and I view a Government Department should then
likewise be limited to a 14 days response.
Clearly now 4 months to the day that I wrote originally to you no proper response has been
5 received by me and I understand neither by Mr Robert Pincevic and/or his father Mr Anton
Pincevic and as such I view that they and other landholders should consider to commence a
elaborate campaign against you and others in government so that you may so to say wake up that
you cannot ignore the issue.
.
10 Below I have referred to the Paliflex case (including errors made in that case) and also Hansard
quotations and I urge you to ensure to respond to me and the Pincevic’s within 14 days of this
email/letter in a comprehensive manner setting out the position of the N.S.W. government
regarding what I view is unconstitutional legislation regarding State land taxes.
.
15 In my view as a Premier you have a duty and obligation to act in the best interest of the citizens
of New South Wales and not to perhaps ignore the issue so the government Department can
continue collecting if not enforcing unconstitutional State land taxes.
As I stated in my previous 31 August 2010 correspondence to you; http://www.austlii.edu.au/cgi-
20 QUOTE
The starting point for a principled interpretation of the Constitution is the search for the intention of its
makers[51].
END QUOTE
25 .
Within Section 51 of the constitution both the States and the Commonwealth have certain
legislative powers however as the Framers of the Constitution stated:
30 QUOTE Mr. REID
The object is this, that for some time to come it will not be possible for the Federal
Legislature to pass laws on these subjects, and it is necessary to have some laws on them-
the state laws if they exist-until federal laws are enacted; but the moment a federal law is
passed on any one of these subjects, under the provision under the head of "States" the
35 federal law prevails over the state law.
END QUOTE
.
QUOTE
40 The Hon. R.E. O'CONNOR (New South Wales)[3.18]: The moment the commonwealth exercises the
power, the states must retire from that field of legislation.
END QUOTE
.
45 QUOTE Mr. REID:
We must make it clear that the moment the Federal Parliament legislates on one of those points
50 complication of the kind.
END QUOTE
.
Below I quote parts of the Paliflex case and it may be noted that the High Court of Australia
apparently was unaware in its decision to make a conflicting judgment in that it on the one hand
55 held that the 1956 Land Tax was valid and yet on the other hand made clear the state could not
encroach upon exclusive commonwealth legislative powers. What the High Court of Australia
simply overlooked in its judgment was that since 1910 the land tax issue became an exclusive
legislative power. Actually the judgment also seems to misconceive that Commonwealth can be

sold off and State laws are normally applicable. The truth is that when the Commonwealth
owned land upon federation, this despite that it was stated:
http://www.austlii.edu.au/cgi-
bin/sinodisp/au/cases/cth/HCA/2003/65.html?stem=0&synonyms=0&query=Paliflex
5 Paliflex Pty Ltd v Chief Commissioner of State Revenue (NSW) [2003] HCA 65; 219 CLR 325; 202 ALR 376; 78
ALJR 87 (12 November 2003)
.
QUOTE at 61 (CALLINAN J.)
The Commonwealth owned no land at the time of Federation. Everything it has (apart from land transferred or
10 ceded to it pursuant to ss 85 and 125 of the Constitution or given to it), must have been acquired either by
purchase, overshadowed no doubt by its ultimate power of compulsory acquisition, or by compulsory
acquisition.
END QUOTE
.
15 The evidence is in the constitution itself, which states:
QUOTE
69 Transfer of certain departments
On a date or dates to be proclaimed by the Governor-General after
the establishment of the Commonwealth the following departments
20 of the public service in each State shall become transferred to the
Commonwealth:
posts, telegraphs, and telephones;
naval and military defence;
lighthouses, lightships, beacons, and buoys;
25 quarantine.
END QUOTE
.
At that time all land, including for example Point Nepean in Victoria became exclusive
Commonwealth property. As a matter of fact any land upon which this was vested became
30 “sovereign land” in that the Commonwealth didn’t just hold it as proprietor but also as
“sovereign”. What this means is that all State laws whatsoever were extinguished upon any land
so transferred as part of the properties within s69 and those acquired within s.85 with the consent
of the State. As the Framers of the Constitution made clear that when the State didn’t consent to
the Commonwealth acquiring property then the Commonwealth would do so merely as a
35 proprietor where State laws would remain applicable for so far it didn’t conflict with the purpose
for which the land was obtained, .but when the State approved it then the Commonwealth
became “sovereign” over the land and all and any State laws became extinguished.
Consider also http://www.austlii.edu.au/au/cases/cth/HCA/1923/23.html Commonwealth v New
South Wales [1923] HCA 23; (1923) 32 CLR 200 (5 June 1923) and Commonwealth v New
40 South Wales [1923] HCA 34; (1923) 33 CLR 1 (9 August 1923) albeit then the High Court of
Australia erred to some decree because only when land was in exclusive powers of the
Commonwealth as “sovereign” would it have powers to minerals in the land. Where the
Commonwealth were merely hold the land as a proprietor then it has no constitutional rights to
the minerals under the land.
QUOTE
Mr. ISAACS.-And even independent of that provision. It has been held over and over again in the United
States that it is one of the attributes of sovereignty that the Supreme Government shall be unfettered in
carrying out the powers intrusted to it, and for the purpose of carrying out those powers it has the right to
50 acquire land compulsorily. No express power is given in the United States Constitution, and the Supreme
Court of that country has held that no express language is necessary. That power was exercised for the first
time, I think, in 1875, but it has since been exercised, beyond all doubt, on several occasions.
Mr. REID.-For what purposes?
Mr. ISAACS.-For public purposes-only for the purposes committed to it by the Constitution.

Mr. HIGGINS.-In the Constitution of the United States there is a general power given for all purposes
incidental.
Mr. ISAACS.-Oh, the same as we have here.
Mr. KINGSTON.-Is not the supremacy of the United States Government a little different from the
5 supremacy of our proposed Federal Government?
Mr. ISAACS.-Not in this respect. The supremacy, as far as the powers committed to it are concerned,
would, in this respect, I apprehend, be exactly the same as the Supremacy of our Commonwealth Government
in relation to its powers. In the case of Kohl v. United States, which was decided in 1875, on this very
question of the right of the United States Government to compulsorily take property within the state for its
10 public purposes, the court said this:-
It has not been seriously contended during the argument that the United States Government is without power
to appropriate lands or other property within the states for its own uses, and to enable it to perform its proper
functions. Such an authority is essential to its independent existence and perpetuity. These cannot be
preserved if the obstinacy of a private person, or if any other authority, can prevent the acquisition of the
15 means or instruments by which alone governmental functions can be performed. The powers vested by the
Constitution in the General Government demand for their exercise the acquisition of lands in all the states.
These are needed for forts, armories, and arsenals, for navy yards and light-houses, for custom-houses, post-
offices, and court-houses, and for other public uses; If the right to acquire property for such uses may be
made a barren right by the unwillingness of property holders to sell, or by the action of a state prohibiting a
20 sale to the Federal Government, the constitutional grants of power may he rendered nugatory, and the
Government is dependent for its practical existence upon the will of a state, or even upon that of a private
citizen. This cannot be. No one doubts the existence in the state Governments of the right of eminent domain-
a right distinct from and paramount [start page 261] to the right of ultimate ownership. It grows out of the
necessities of their being, not out of the tenure by which lands are held. It may be exercised, though the lands
25 are not held by grant from the Government, either mediate'y or immediately, and independent of the
consideration whether they would escheat to the Government in case of a failure of heirs. The right is the
offspring of political necessity; and it is inseparable from sovereignty. unless denied to it by its fundamental
law. Put it is no more necessary for the exercise of the powers of a state Government than it is for the exercise
of the conceded powers of the Federal Government. That Government is as sovereign within its sphere as the
30 states are within theirs. True, its sphere is limited. Certain subjects only are committed to it; but its power
over those subjects is as fall and complete as is the power of the states over the subje cts to which their
sovereignty extends. The power is not changed by its transfer to another holder.
Then the court went on to say-
But, if the right of eminent domain exists in the Federal Government, it is a right which may be
35 exercised within the states, so far as is necessary to the enjoyment of the powers conferred upon it by
the Constitution.
The whole judgment proceeds in that way. It has been followed in several cases, and I think it has been laid
down more than once in express terms that, for the purpose of carrying out the powers expressly given to the
federal authority in the Constitution, the right of eminent domain is an essential attribute, and therefore I do
40 not entertain the slightest doubt that, as in that case, and as in several other cases, the United States
Government has, even without the consent of the state, taken land so far as it was necessary for the exercise of
its public duties, we should have the same right here. I will now proceed to show the meaning of this sub-
section. This sub-section does not say that the Federal Government is to have the power to take that
land. It assumes that the Federal Government has that power, but when the Government does take
45 land, compulsorily or by purchase, in a state as its possession, it takes that land certainly by virtue of its
sovereign power of eminent domain, that is, the highest dominion. But it does not hold that land as
sovereign, it holds the land as proprietor. Now, where it holds the land merely as proprietor, without
the consent of the state being given to it, it is quite plain that the jurisdiction of the state should run,
except, of course, so as not to interfere with the performance of the governmental functions of the
50 Federal Government. But, as far as punishing crime is concerned, as far as any other ordinary state
supervision relates, not inconsistent with the performance of the supreme functions of the
Commonwealth, the ordinary state law will run. But the United States have provided, and we, I
understand, propose to provide here, that, where the state consents to the Federal Government
acquiring any land, either by purchase or compulsorily, it thereby consents, and that consent is
55 equivalent to the admission of the right of the Federal Government to exercise exclusive jurisdiction in
respect to that particular portion of territory. And if the state does not choose to give its consent, it
says, in effect-"You may take this land, it is true, by virtue of your sovereign right, for your sovereign

powers, but you hold it as proprietor; you can carry on your post-office, your court-house, or anything
you please, but as regards ordinary state laws outside those functions our state laws prevail. Where the
state, however, is asked by the Federal Government to consent to the excision of a piece of land from its
own territory for governmental purposes, and does consent, then the exclusive right of the Federal
5 Government to govern that portion of land attaches to it, and this is what the sub-section we are now
considering intends to enact. Therefore, I think that the leader of the Convention is right in not pressing this
amendment, and that we should be doing well to keep in the words "with the consent," because it does not
relate to the acquisition of property, but to the exercise of jurisdiction over the property when it is acquired.
END QUOTE
10 .
When I exposed this to the then Prime Minister John Howard that he couldn’t sell the land (Point
Nepean) to private interest as it would remain Commonwealth sovereign property and so the
Commonwealth would then have to provide for the relevant infra structure including law
enforcement, etc, it was then that John Howard aborted any sale of the land as such.
15 Commonwealth land that is held in not just propriety but as “sovereign” cannot be sold of to
individuals and then State laws are applied because the land technically remains under the
“sovereign” powers of the Commonwealth. As to if the Commonwealth obtained the land
relating to the Paliflex case as “sovereign” and not just as “proprietor” is not what I have delved
into albeit the judgment appears to indicate it never was. For all purposes and intend if the land
20 relating to the Paliflex case was held by the Commonwealth as “sovereign” then it would have
and still would be under Commonwealth powers irrespective if it was sold to Paliflex and
subsequently to others as much as with old Australia Post/Telecom/Telstra land that purportedly
was sold off but never was the ‘sovereign” powers of the Commonwealth extinguished if the
land had not been returned back first to the relevant state. As such, if the Commonwealth holds
25 land as “proprietor” then it is basically holding the land by title but the land remains under the
sovereign rights of the relevant State and all State laws are applicable for so far they do not
interfere with the purpose for which the Commonwealth holds the land as proprietor. If however
the Commonwealth obtained the land as a “sovereign” then it will continue to be the “sovereign”
of this land regardless it may transfer the titled to Paliflex or whomever. Then State as cannot be
30 applied as the land is not part of the State sovereign powers. After all a clear example is the ACT
where the Commonwealth allows people to obtain land but retain its “sovereign” powers as it
didn’t then revert back to NSW, as it used to be prior to federation! If the Commonwealth
therefore seeks to dispose of its “sovereign” powers it can do only so by relinquishing it back to
the relevant State and then the State can deal with it as it desires. The Commonwealth cannot sell
35 the land to private interest and then seek to transfer it back to a State while so to say prevent the
State then to deal with the land as a “sovereign” as it desires. Hence, any sale of land by the
Commonwealth that is intended to extinguish its “sovereign” powers must be done by returning
the land to the relevant State and then the State determines how it may deal with the land.
.
40 http://www.austlii.edu.au/cgi -bin/sinodisp/au/cases/cth/HCA/2003/65.html?stem=0&synonyms=0&query=Paliflex
Paliflex Pty Ltd v Chief Commissioner of State Revenue (NSW) [2003] HCA 65; 219 CLR 325; 202 ALR 376; 78
QUOTE
Windeyer J[36] construed the Scheme as containing an implication that it did "not encroach upon matters
45 that are within the exclusive power of the Commonwealth".
END QUOTE
.
50 QUOTE
17. The position which this Court should accept is that at no relevant time since 1956 have the Tax Act and the
Management Act had any invalid application to the Land. More precisely, (i) the New South Wales land tax
legislation was not invalid when enacted in 1956; there was no purported exercise by the State of what was
the exclusive federal power conferred by s 52(i) of the Constitution; (ii) the Land ceased to have the
55 character of a place acquired by the Commonwealth for public purposes on the registration of the transfer to
Paliflex on 4 February 1998; and (iii) in its application to the Land on the critical dates of 31 December
1998 and 31 December 1999, the State legislation was not an exercise of power with respect to a place

acquired by the Commonwealth for public purposes. These conclusions made it unnecessary formally to
determine the validity of s 14(2) of the State Administration Act, but its validity is implicit in the reasoning
leading to the above conclusions.
The situation in 1956
5 18. We turn to consider proposition (i) listed in [16] above and thus to the situation in 1956 when the Tax Act
and the Management Act were enacted. At that stage the Land was "property of any kind belonging to the
Commonwealth" within the meaning of s 114 of the Constitution and so, without the consent of the
Parliament of the Commonwealth, New South Wales could not impose any tax upon it. Further, the Land
was one of the "places acquired by the Commonwealth for public purposes" within the meaning of s 52(i)
10 of the Constitution. The Land had been acquired in 1922, but the phrase "acquired by the Commonwealth"
carries within itself the notion of being the property of the Commonwealth as a consequence of that
acquisition.
END QUOTE
.
15 Paliflex Pty Ltd v Chief Commissioner of State Revenue (NSW) [2003] HCA 65; 219 CLR 325; 202 ALR 376; 78
QUOTE
24. Allders also confirms[27] that the boundaries of the power withdrawn by s 52(i) from the States are charted
by the grant of exclusive power to the Commonwealth, so that a useful test is to ask whether a federal law
20 similar to the 1956 State legislation would be supported in any of its operations as a law with respect to the
Land. The answer must be that such a law would have no connection with the Land, accepting that
something more than an insubstantial, tenuous or distant connection is required by the authorities just
mentioned.
END QUOTE
25 .
QUOTE (CALLINAN J.)
55. The appeal fails on the basis that the two State enactments, the Land Tax Management Act 1956 (NSW)
30 ("the LTMA") and the Land Tax Act 1956 (NSW), never had, or purported to have any application to the
Commonwealth and any land owned by it within the State. Each of, and in combination, ss 3, 7 and 9 of the
LTMA, the sections by which land tax is levied, refer or are intended to operate in relation to "land ...
owned by taxpayers". As the Commonwealth is not a taxpayer it does not answer that description.
Furthermore, the Commonwealth is, to put it at its lowest, constitutionally exempt from any obligation to
35 pay land tax to the State.
END QUOTE
.
40 QUOTE (CALLINAN J.)
61. The appellant contended that the two Acts burdened Commonwealth land. It was unable to identify any
effect upon it however, except as to its value: in short that the Commonwealth could sell it for more if it
were exempt from land tax. Attempts by the appellant to liken this circumstance to a defect in title were
unconvincing. That the Commonwealth might get a better price if it could immunise land it owned from
45 land tax for a period, or indefinitely, has nothing to say about the nature and completeness of the title that it
can convey. Apart from the more obvious policy considerations arguing against the result sought by the
appellant, that land no longer in Commonwealth ownership and therefore no longer used for any public
purpose should nonetheless continue to have a tax free status, there is this. The Commonwealth owned no
land at the time of Federation. Everything it has (apart from land transferred or ceded to it pursuant to ss 85
50 and 125 of the Constitution or given to it), must have been acquired either by purchase, overshadowed no
doubt by its ultimate power of compulsory acquisition, or by compulsory acquisition. On acquisition it
would have paid no additional sum for it because it was to be used for a Commonwealth public purpose,
one relevant incident of which is freedom from State land tax. That follows from settled principle now
enacted as s 60 of the Lands Acquisition Act 1989 (Cth) which relevantly provides:
55 "In assessing compensation, there shall be disregarded:
(a) any special suitability or adaptability of the relevant land for a purpose for which it
could only be used pursuant to a power conferred by or under law, or for which it could
only be used by a government, public or local authority;
...
(c) any increase or decrease in the value of the land caused by the carrying out of, or the
proposal to carry out, the purpose for which the interest was acquired; and
..."
5 62. An enactment under the Constitution may not of course be used to construe the Constitution, but s 60 of the
Lands Acquisition Act reflects the law in force in relation to compulsory acquisitions at the time of
Federation and of which the drafters may be taken to have known. That law is described in Corrie v
MacDermott[86] on appeal from this Court to the Privy Council which explained the much earlier cases of
Hilcoat v Archbishops of Canterbury and York[87] and Stebbing v Metropolitan Board of Works[88]. The
10 principle was shortly stated as[89]:
"The value which has to be assessed is the value to the old owner who parts with his
property, not the value to the new owner who takes it over."
It would be odd, if having acquired land for a price which was unaffected by the incidents of public
ownership, an acquiring authority should be entitled to sell it to an ordinary purchaser at a price enhanced
15 by the continuation of a status entirely inappropriate to its new ownership and usage.
END QUOTE
.
Further, as to water rights of landholders so to say the Commonwealth should but out because
other then for navigational purposes it has absolutely no legislative powers to interfere with the
20 rights of the states and so landholders in the states as to how much water consumption they may
or may not have.
.
QUOTE Mr. GORDON.-
25 We are only asking for the right that every riparian proprietor enjoys under British law-the
right that the man above him shall neither injure the quality nor diminish the flow of any
stream designed for their mutual benefit and enjoyment. That is a right that is founded
deep in natural justice. It cannot be said that we are asking for anything extraordinary or
making extreme demands upon our follow colonists when we simply seek for that right
30 which every riparian proprietor under British law enjoys. The tendency of modern
legislation is to go even further than the common law doctrine in declaring that there shall
be no exclusive property in running streams. The tendency of modern legislation is to say
that while the riparian proprietors should have their rights under the law there is a higher, a
paramount right, the right of the people who are the dwellers on the banks of these streams.
35 END QUOTE
.
As a CONSTITUTIONALIST and Author of books in the INSPECTOR-RIKATI® series on
certain constitutional and other legal issues my issue is foremost what is constitutionally
appropriate and for this directed myself to you. I intend to publish a copy of this correspondence
40 on the internet so that you might be aware that I will disclose details to others so they may seek
to use it to their advantage to combat any unconstitutional State land tax.
I have provided the email address of Mr Robert Pincevic also (above) so you can also respond
to him and his father directly.
.
45 EITHER WE HAVE A CONSTITUTION OR WE DON’T!
.

.

50 .

.
5 Premier Kristina Keneally 7-2-2011
.
* Tony Newbury Chief Commissioner of State Revenue C/o peter.geffroy@osr.nsw.gov.au
10 * Mr Robert Pincevic <roblp@bigpond.com>
PO Box 15 Luddenham NSW 2745
.
15 .
Kristina,
your office for having provided me with a 13 September 2010 response (in regard of my
QUOTE
20 CMU10-16940
13 September 2010
25 Dear Mr Schorel-Hlavka
30 Yours sincerely
David Swain
END QUOTE
.
35 Regretfully since then despite further subsequent correspondences nothing was heard about it
other then that I have become aware that Peter Geffroy of State Revenue Office appears to
disregard the proper ‘consideration” and persist with assessments irrespective of the issue that
State parliaments since 1910 have no constitutionally permissible legislative powers as to raise
land taxes since it became an exclusive federal power in 1910.
40 .
QUOTE Padfield v Minister of Agriculture & Fisheries and Food (1968) AC 997 (1968) 1 ALL ER 694 House
of Lords - Lord Upjohn and Lord Hodson Upjohn: - (Irrelevant consideration)
Here let it be said at once, he and his advisers have obviously given a bona fide and painstaking
consideration to the complaints addressed to him; the question is whether the consideration was sufficient
45 in law.
END QUOTE
.
It appears to me that “You can be sure your letter will receive close consideration.” then must
imply that before the State Revenue Office can pursue any assessment as to properties owned by
50 the Pincevic’s then such due and proper consideration is given in regard of if the State does or
doesn’t have any constitutionally permissible land tax legislative powers.
In all fairness to the Pincevi’s the issue was raised by me way back on 31 August 2010 well
before the State Revenue Office purportedly issued its client ID 41494706 (correspondence ID
1539644953) & ID 4345407 (correspondence ID 1539640597) Land Tax Assessment Notices
55 and as such the Pincevic’as are entitled to be given a proper explanation what was actually
“considered’ and if the issue of the lack of legislative powers regarding State Land Taxes was not
considered then the Land Tax Assessment Notice would fail as it omitted proper consideration of
all relevant issues.
.
I have obtained a copy of a 13 January 2011 correspondence from the Office of state Revenue
and contrary to your office response stating “You can be sure your letter will receive close
consideration.” Nothing in the correspondence seems to me even remotely refer to the issues
5 raised in my n31 August 2010 and further correspondences.
As the Framers of the Constitution made clear all and any taxes unconstitutionally extracted from
a tax payer must be refunded. Hence, any State land Taxes the State of NSW so far charged and
had paid from the Pincevic’s should be refunded.
.
10 The State of NSW also should be aware that if this case were to go for litigation in the courts
then where the courts to uphold the claim that the States since 1910 no longer had legislative
powers to apply land taxes then this will be a considerable billion dollar issue. Do you really
desire to have this case to be litigated as such?
.
15 Kikonda Butema Farms Ltd v The Inspector General of Government HCT-00-CV-MA-593-2003
QUOTE
Constitution needles to mention is a supreme law of the land.
END QUOTE
.
20 http://www.austlii.edu.au/cgi -
QUOTE
The starting point for a principled interpretation of the Constitution is the search for the intention of its
25 makers[51].
END QUOTE
.
QUOTE Mr. BARTON.-
30 Providing, as this Constitution does, for a free people to elect a free Parliament-giving that people
through their Parliament the power of the purse-laying at their mercy from day to day the existence of
any Ministry which dares by corruption, or drifts through ignorance into, the commission of any act
which is unfavorable to the people having this security, it must in its very essence be a free
Constitution. Whatever any one may say to the contrary that is secured in the very way in which the
35 freedom of the British Constitution is secured. It is secured by vesting in the people, through their
representatives, the power of the purse, and I venture [start page 2477] to say there is no other way of
securing absolute freedom to a people than that, unless you make a different kind of Executive than
that which we contemplate, and then overload your Constitution with legislative provisions to protect
the citizen from interference. Under this Constitution he is saved from every kind of interference.
40 Under this Constitution he has his voice not only in the, daily government of the country, but in the
daily determination of the question of whom is the Government to consist. There is the guarantee of
freedom in this Constitution. There is the guarantee which none of us have sought to remove, but every
one has sought to strengthen. How we or our work can be accused of not providing for the popular
liberty is something which I hope the critics will now venture to explain, and I think I have made their
45 work difficult for them. Having provided in that way for a free Constitution, we have provided for an
therefore, it can only act as the agents of the people. We have provided for a Judiciary, which will
determine questions arising under this Constitution, and with all other questions which should be dealt
with by a Federal Judiciary and it will also be a High Court of Appeal for all courts in the states that
50 choose to resort to it. In doing these things, have we not provided, first, that our Constitution shall be free:
next, that its government shall be by the will of the people, which is the just result of their freedom: thirdly,
that the Constitution shall not, nor shall any of its provisions, be twisted or perverted, inasmuch as a
court appointed by their own Executive, but acting independently, is to decide what is a perversion of its
provisions? We can have every faith in the constitution of that tribunal. It is appointed as the arbiter of the
55 Constitution. It is appointed not to be above the Constitution, for no citizen is above it, but under it; but
it is appointed for the purpose of saying that those who are the instruments of the Constitution-the
Government and the Parliament of the day-shall not become the masters of those whom, as to the
Constitution, they are bound to serve. What I mean is this: That if you, after making a Constitution of
this kind, enable any Government or any Parliament to twist or infringe its provisions, then by slow
60 degrees you may have that Constitution-if not altered in terms-so whittled away in operation that the
guarantees of freedom which it gives your people will not be maintained; and so, in the highest sense,
the court you are creating here, which is to be the final interpreter of that Constitution, will be such a
tribunal as will preserve the popular liberty in all these regards, and will prevent, under any pretext of
constitutional action, the Commonwealth from dominating the states, or the states from usurping the
sphere of the Commonwealth. Having provided for all these things, I think this Convention has done
5 well.
END QUOTE
.
The following applies as much to Federal laws of the Commonwealth of Australia as it does to
federal laws in the USA; http://familyguardian.tax-
10 tactics.com/Subjects/LawAndGovt/ChallJurisdiction/AuthoritiesArticle/AuthOnJurisdiction.htm
QUOTE
37 Am Jur 2d at section 8 states, in part: "Fraud vitiates every transaction and all contracts. Indeed, the
principle is often stated, in broad and sweeping language, that fraud destroys the validity of everything into
which it enters, and that it vitiates the most solemn contracts, documents, and even judgments."
15 END QUOTE
And
QUOTE
The general misconception is that any statute passed by legislators bearing the appearance of law constitutes
the law of the land. The U.S. Constitution is the supreme law of the land, and any statute, to be valid, must be
20 in agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail.
This is succinctly stated as follows:
The general rule is that an unconstitutional statute, though having the form and name of law, is in
reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from
the time of its enactment, and not merely from the date of the decision so branding it. An
25 unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a
statute leaves the question that it purports to settle just as it would be had the statute not been enacted.
Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no
rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies
no acts performed under it. . .
30 A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede
any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is
superseded thereby.
No one is bound to obey an unconstitutional law and no courts are bound to enforce it.
END QUOTE
35 Sixteenth American Jurisprudence
Second Edition, 1998 version, Section 203 (formerly Section 256)
.
QUOTE Mr. REID:
40 We must make it clear that the moment the Federal Parliament legislates on one of those points
45 END QUOTE
.
It is therefore clear that when the Commonwealth commenced to legislate as to Land Taxes in
1910 then that so to say spelled the end of the States to legislate as such. The fact that the
Commonwealth abolished land taxes in 1952 itself didn’t alter the fact that it had become an
50 “exclusive” Commonwealth legislative power. As such the 1956 State land Taxes legislation and
any subsequent amendments to it all are and remain to be unconstitutional.
.
QUOTE
55 The Hon. R.E. O'CONNOR (New South Wales)[3.18]: We ought to be careful not to load the
commonwealth with any more duties than are absolutely necessary. Although it is quite true that this
on a particular question, there will be continual pressure brought to bear on the commonwealth to
60 that field of legislation.
END QUOTE
.

QUOTE
Mr. OCONNOR.-Directly it is exercised it becomes an exclusive power, and there is no doubt that it will
be exercised.
5 END QUOTE
.
The Framers of the Constitution also embedded the legal principle in the constitution (out of
which within s.106 the States were created from the colonies):
.
QUOTE Mr. HIGGINS:
I think it is advisable that private people should not be put to the expense of having important
questions of constitutional law decided out of their own pockets.
END QUOTE
15 .
Obviously both Mr Robert Pincevic and his father Mr Anton Pincevic have urged me to follow
up the matter in view that your Department is still pestering them about State land taxes.
As a CONSTITUTIONALIST and Author of books in the INSPECTOR-RIKATI® series on
certain constitutional and other legal issues my issue is foremost what is constitutionally
20 appropriate and for this directed myself to you. I intend to publish a copy of this correspondence
on the Internet so that you might be aware that I will disclose details to others so they may seek
to use it to their advantage to combat any unconstitutional State land tax.
I have provided the email address of Mr Robert Pincevic also (above) so you can also respond
to him and his father directly.
25 .
For the above I duo urge you to ensure that the State Land Tax Office immediately withdraw all
and any Assessment notices and do consider the issue of constitutional validity of State land
taxes and to give the Pincevic’s a proper response if it holds the legislation to be valid or not and
upon what “consideration”. After all litigation may attract more attention to other land tax
30 assessed land holders then the State may desire, in particular where it were to end up being an
adverse decision to the State of NSW.
.
EITHER WE HAVE A CONSTITUTION OR WE DON’T!
.
35 MAY JUSTICE ALWAYS PREVAIL®

.

.
40 Awaiting your response, G. H. Schorel-Hlavka (Gerrit)

.
45 <thepremier@www.nsw.gov.au>
.
* Tony Newbury Chief Commissioner of State Revenue C/o peter.geffroy@osr.nsw.gov.au
* Mr Robert Pincevic <roblp@bigpond.com> PO Box 15 Luddenham NSW 2745
50 .
.
Kristina,
55 your office for having provided me with a 13 September 2010 response (in regard of my
QUOTE
CMU10-16940
13 September 2010
5 schorel-hlavka@schorel-hlavka.com
10 Eric Roozendaal MLC, your email has been forwarded to the Treasurer for attention.
Yours sincerely
David Swain
15 END QUOTE
.
I received on 8-3-2011 a response dated 2-3-2011 from Barry Collier MP Parliamentary
Secretary Assisting the Treasurer on behalf of the Treasurer he responded.
Section 107 he refers to is very clear that for example “Income Tax” albeit was a Colonial and
20 later State legislative power the moment the Commonwealth legislated upon “Income Tax” then
the power became an exclusive Commonwealth power and the States had to retire from this.
Once it became an exclusive power then the constitution doesn’t permit it to return to become a
“concurrent” power, as I have set out in past correspondence. The legislative powers on the
particular field is forever an exclusive power of the Commonwealth!
25 In regard of the State Land Taxes the same applies. Once the Commonwealth commenced to
legislate as to “Land taxes” then it became by this an exclusive legislative power and as such the
State no longer had concurrent legislative powers on Land taxes matters.
The States were created out of the former colonies and as s.106 of the (federal) constitution
makes clear “subject to this constitution” and this clearly provides in s51 for concurrent
30 legislative powers to become exclusive Commonwealth legislative powers. It is not relevant if
the Commonwealth, as like with the 1952 abolition land taxes were to abolish “income tax”
because it would still remain an exclusive Commonwealth legislative power. As for s5 of the
Constitution Act 1992 (NSW) it cannot override any Commonwealth exclusive powers and as it
clearly is subject to the Commonwealth constitution it therefore cannot be perceived it somehow
35 gives legislative powers no longer permissible by the Commonwealth Constitution to be
exercisable by a state.
.
Critical might be the claim:
QUOTE
Land taxes were imposed by the States prior to federation. They were introduced at the federal level in 1910.
In 1952, the Commonwealth Government abolished land tax. This did not have the effect of preventing the
States from imposing land tax, but rather returned taxation powers back to them. Accordingly, the NSW
5 Government introduced the land Management Act in 1956.
END QUOTE
Obviously, contrary to what was claimed by Barry Collier MP the Commonwealth Government
has no constitutional powers to abolish any legislation as it being the Executive it can refuse to
enforce legislative provisions but cannot abolish an act of Parliament. As such it is the
10 Commonwealth Parliament that can only abolish legislation.
What may be noted is the wording “but rather returned taxation powers back to them” as
such this is a concession that in fact since 1910 land taxes were an exclusive Commonwealth
legislative power. The question then is how does one “return” a legislative power to any State,
not just NSW, where the Constitution never provided for this? Clearly Barry Collier MP didn’t
15 clarifyy within what constitutional powers, if any, a reversal of legislative power could eventuate
and quite frankly the Framers of the Constitution made clear that once a legislative power was a
Commonwealth legislative power then this was the end of the States dealing with the subject.
.
Hansard 27 -1-1898 Constitution Convention Debates (Official Record of the Debates of the National
20 Australasian Convention)
QUOTE
Mr. DEAKIN.-My point is that by the requests of different colonies at different times you may arrive at a
position in which all the colonies have adopted a particular law, and it is necessary for the working of that law
that certain fees, charges, or taxation should be imposed. That law now relates to the whole of the Union,
25 because every state has come under it. As I read clause 52, the Federal Parliament will have no power,
until the law has thus become absolutely federal, to impose taxation to provide the necessary reve nue
for carrying out that law. Another difficulty of the sub-section is the question whether, even when a
state has referred a matter to the federal authority, and federal legislation takes place on it, it has any-
and if any, what-power of amending or repealing the law by which it referred the question? I should be
30 inclined to think it had no such power, but the question has been raised, and should be settled. I should
say that, having appealed to Caesar, it must be bound by the judgment of Caesar, and that it would not
be possible for it afterwards to revoke its reference.
END QUOTE
.
QUOTE Mr. GORDON.-
The court may say-"It is a good law, but as it technically infringes on
the Constitution we will have to wipe it out."
END QUOTE
40 .
QUOTE Mr. ISAACS (Victoria).-
In the next sub-section it is provided that all taxation shall be uniform throughout the Commonwealth.
An income tax or a property tax raised under any federal law must be uniform "throughout the
45 Commonwealth." That is, in every part of the Commonwealth.
END QUOTE
.
QUOTE
50 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.
END QUOTE
And
55 QUOTE
Sir GEORGE TURNER: No. In imposing uniform duties of Customs it should not be necessary for the
Federal Parliament to make them commence at a certain amount at once. We have pretty heavy duties in
Victoria, and if the uniform tariff largely reduces them at once it may do serious injury to the colony. The

Federal Parliament will have power to fix the uniform tariff, and if any reductions made are on a
sliding scale great injury will be avoided.
END QUOTE
.
QUOTE Mr. BARTON.-
But it is a fair corollary to the provision for dealing with the revenue for the first five years after the
imposition of uniform duties of customs, and further reflection has led me to the conclusion that, on the
whole, it will be a useful and beneficial provision.
10 END QUOTE
And
QUOTE Mr. BARTON.-
On the other hand, the power of the Commonwealth to impose duties of customs and of excise such as it may
15 determine, which insures that these duties of customs and excise would represent something like the average
opinion of the Commonwealth-that power, and the provision that bounties are to be uniform throughout
the Commonwealth, might, I am willing to concede, be found to work with some hardship upon the states
for some years, unless their own rights to give bounties were to some extent preserved.
END QUOTE
20
QUOTE Sir SAMUEL GRIFFITH:
2. Customs and excise and bounties, but so that duties of customs and excise and bounties shall be uniform
throughout the commonwealth, and that no tax or duty shall be imposed on any goods exported from one
25 state to another;
END QUOTE

QUOTE The CHAIRMAN.-
30 Taxation; but so that all taxation shall he uniform throughout the Commonwealth, and that no tax or duty
shall be imposed on any goods passing from one state to another.
END QUOTE
.
35 QUOTE
Mr. BARTON.-I am saying now that I do not think there is any necessity for clause 95 in its present form.
What I am saying however, is that it should be made certain that in the same way as you provide that the
Tariff or any taxation imposed shall be uniform throughout the Commonwealth, so it should be
provided with reference to trade and commerce that it shall be uniform and equal, so that the
40 Commonwealth shall not give preference to any state or part of a state. Inasmuch as we provide that all
taxation, whether it be customs or excise duties, or direct taxation, must be uniform, and inasmuch as
we follow the United States Constitution in that particular-in the very same way I argue that we should
protect the trade and commerce sub-section by not doing anything which will limit its effect. That is the real
logical position.
45 END QUOTE
.
QUOTE
50 Mr. ISAACS (Victoria).-What I am going to say may be a little out of order, but I would like to draw the
Drafting Committee's attention to the fact that in clause 52, sub-section (2), there has been [start page 1856] a
considerable change. Two matters in that sub-section seem to me to deserve attention. First, it is provided
that all taxation shall be uniform throughout the Commonwealth. That means direct as well as indirect
taxation, and the object I apprehend is that there shall be no discrimination between the states; that an
55 income tax or land tax shall not be made higher in one state than in another. I should like the Drafting
Committee to consider whether saying the tax shall be uniform would not prevent a graduated tax of any
kind? A tax is said to be uniform that falls with the same weight on the same class of property, wherever it is
found. It affects all kinds of direct taxation. I am extremely afraid, that if we are not very careful, we shall get
into a difficulty. It might not touch the question of exemption; but any direct tax sought to be imposed
60 might be held to be unconstitutional, or, in other words, illegal, if it were not absolutely uniform.
END QUOTE
.

It should be clear that a “UNIFORM” law under the Commonwealth cannot somehow revert
back to a non-uniform law merely because of the States desiring to pursue their own kind of land
taxation. As such, on this basis also the State land taxes are floored (and so also any Territorial
land taxes).
5 .
QUOTE
Mr. ISAACS.-The court would not consider whether it was an oversight or not. They would take the
law and ask whether it complied with the Constitution. If it did not, they would say that it was invalid.
10 They would not go into the question of what was in the minds of the Members of Parliament when the law
was passed. That would be a political question which it would be impossible for the court to determine.
END QUOTE
.
As I previously indicated the Commonwealth could have allowed the States to collect under its
15 authority land taxes but it still would have to be uniform through the Commonwealth and as such
all States and Territories (quasi States) would be bound to have the same land taxes application
and not different rates. This then would clearly be a waste of exercise as why allow different
States/Territories to collect taxes when one federal office can do the same?
The issue then is of the Commonwealth somehow could enact legislation to retrospective provide
20 for legislation for the States/Territories to have collected land taxes on its behalf. Again, the first
hurdle is that retrospective legislation would be invalid where so to say it makes the conduct of a
honest man to be a criminal conduct. Further, where the States raised different levels of land
taxes then it cannot be uniform. One couldn’t accept that a person of one State having paid less
then in another State now suddenly was to pay more by some kind of retrospective legislation
25 and neither that some who paid more now were going to receive a refund of any land taxes paid
above that of other States. After all commercial entities are based upon overhead cost, including
land taxes, etc, and as such a business enterprise might be determined where the lowest taxation
is available. Changing the system after the contracts are already in operation would make a
mockery of the reliability of State provisions.
30 I have indicated for years that what is needed is an OFFICE-OF-THE-GUARDIAN which
would advise the government, the parliament, the people and the Courts as to constitutional
meanings and application as a constitutional council. This is what is missing in Australia and as
result we have sport stars and singers and whatever elected to the parliament and basically no one
understands let alone comprehend the meaning and application of the constitutions.
35 .
It is obviously of concern to me that it took a massive 6 month period (from 31 August 2010 till
2 March 2011) to present this kind of response that doesn’t appear to me to indicate to be any
well researched response.
.
40 Obviously I will pass on the 2-3-2011 response and my reply to those concerned with the issue.
.
.

45 .

.

50
.

It appears to be very obvious that despite my considerable effort to detail matters the NSW
government clearly simply disregarded to address any of these issues such as how it possibly
could “return” exclusive Commonwealth legislative powers to the States.
.
5 In my view the Commonwealth cannot permit the States to make incursions into its exclusive
legislative powers and it must forthwith, without any further delay, take such appropriate action
to stop this rot.
.
In my view any failure of the Commonwealth to do so could make itself liable to those who
10 suffer in the meantime as the Commonwealth having exclusive legislative powers upon a certain
subject is obligated to protect its exclusive legislative powers as such as failing to do so would
invite the states to make further incursions into other exclusive legislative powers.
.
It ought to be very obvious that this matter is of a very URGENT nature in particular to the
15 many landholders who are terrorised to pay State land taxes even so the various governments are
made well aware that this is unconstitutional and so illegal, and hence nothing less then
TERRORISM upon landholders!
.
Obviously the mere fact that this has been permitted to go on since at least 1956 in NSW and
20 subsequently in other States may underline the urgent need for the OFFICE-OF-THE-GUARD
being a constitutional council to advise the Government, the People, the Parliament and the
courts as to constitutional meaning and applications. By this then the OFFICE-OF-THE-
GUARD would look after issues as to what is or isn’t constitutionally appropriate and remove
any by this TYRANNY upon the People (citizens).
25 .
.
You cannot claim rights to be a Prime Minister because of constitutional provisions while at the
same time flaunting your obligations and responsibilities as a “sentry”. No matter the political
30 issues involved in the end we must never allow TYRANNY/DICTATORSHIP to triumph
above democracy!
.
Don’t send me apology as to excusing the long delay in responding just do your darn job now
because to many landholders are badly hurting and it is no good to them if in the meantime their
35 lives are ruined because you cannot find the time (so any other Minister) to immediately act on
this. When do we need action? We need it now!
.

.
40 Our name is our motto!

.
Awaiting your response, Gerrit - G. H. Schorel-Hlavka


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Julia Gillard PM 10-3-2011

10-3-2011 Page 1 Re unconstitutional State/Territorian Land Taxes

10-3-2011 Page 3 Re unconstitutional State/Territorian Land Taxes

10-3-2011 Page 6 Re unconstitutional State/Territorian Land Taxes

10-3-20 11 Page 10 Re unconstitutional State/Territorian Land Taxes

10-3-20 11 Page 12 Re unconstitutional State/Territorian Land Taxes

MAY JUSTICE ALWAYS PREVAIL®

Our name is our motto!

Awaiting your response, G. H. Schorel-Hlavka (Gerrit)

35 QUOTE 29-9-2010 correspondence to NSW Premier Kristine Keneally

10-3-20 11 Page 13 Re unconstitutional State/Territorian Land Taxes

Mr. BARTON: That would not be a case of two separable propositions.

10-3-20 11 Page 16 Re unconstitutional State/Territorian Land Taxes

10-3-20 11 Page 19 Re unconstitutional State/Territorian Land Taxes

MAY JUSTICE ALWAYS PREVAIL®

15 Our name is our motto!

Awaiting your response, G. H. Schorel-Hlavka (Gerrit)

10-3-20 11 Page 22 Re unconstitutional State/Territorian Land Taxes

MAY JUSTICE ALWAYS PREVAIL®

Our name is our motto!

Awaiting your response, G. H. Schorel-Hlavka (Gerrit)

10-3-20 11 Page 23 Re unconstitutional State/Territorian Land Taxes

10-3-20 11 Page 24 Re unconstitutional State/Territorian Land Taxes

MAY JUSTICE ALWAYS PREVAIL®

Our name is our motto!

Awaiting your response, G. H. Schorel-Hlavka (Gerrit)

QUOTE 31-12-2010 correspondence to NSW Premier Kristine Keneally

10-3-20 11 Page 25 Re unconstitutional State/Territorian Land Taxes

10-3-20 11 Page 26 Re unconstitutional State/Territorian Land Taxes

Mr. REID.-For what purposes?

10-3-20 11 Page 27 Re unconstitutional State/Territorian Land Taxes

Mr. ISAACS.-Oh, the same as we have here.

Then the court went on to say-

10-3-20 11 Page 28 Re unconstitutional State/Territorian Land Taxes

10-3-20 11 Page 29 Re unconstitutional State/Territorian Land Taxes

The situation in 1956

55 "In assessing compensation, there shall be disregarded:

MAY JUSTICE ALWAYS PREVAIL®

Our name is our motto!

10-3-20 11 Page 31 Re unconstitutional State/Territorian Land Taxes

10-3-20 11 Page 34 Re unconstitutional State/Territorian Land Taxes

35 MAY JUSTICE ALWAYS PREVAIL®

Our name is our motto!

40 Awaiting your response, G. H. Schorel-Hlavka (Gerrit)

10-3-20 11 Page 37 Re unconstitutional State/Territorian Land Taxes

Hansard 11-3-1898 Constitution Convention Debates

10-3-20 11 Page 38 Re unconstitutional State/Territorian Land Taxes

MAY JUSTICE ALWAYS PREVAIL®

Our name is our motto!

Awaiting your response, G. H. Schorel-Hlavka (Gerrit)

10-3-20 11 Page 39 Re unconstitutional State/Territorian Land Taxes

MAY JUSTICE ALWAYS PREVAIL®

40 Our name is our motto!

Awaiting your response, Gerrit - G. H. Schorel-Hlavka

10-3-20 11 Page 40 Re unconstitutional State/Territorian Land Taxes

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