S 79 Constitution reads: The federal jurisdiction of any court shall be exercised by such number of judges as Parliament prescribes. No section of the Constitution has been less discussed in the Law Reports or directly referred to in any of the many decisions of the High Court since 1900. It could hold the key to the continued functioning of the Federation, and it is probably time the Parliament of the Commonwealth defined the number of judges who can exercise the federal jurisdiction of any court consistently with S 71 Constitution.

The federal jurisdiction of the High Court is prescribed by S 71 Constitution and should be exercised by the Chief Justice and so many other Justices not less than two, as Parliament prescribes and not otherwiise. There is a conflict between S 71 Constitution and S 15 Judiciary Act 1903, which says; the jurisdiction of the High Court may, subject to the provisions of this Act, be exercised by one or more Justices sitting in open Court.

Further conflict occurs between S 77 (i) Constitution and S 15 Judiciary Act 1903, because S 77 (i) States: Parliament may make laws: (i) defining the jurisdiction of any federal court other than the High Court.

For the peace order and good government of the Commonwealth, these conflicts and inconsistencies need resolution, and the elected judges of the House of Representatives and the Senate should address them this term of Parliament. Rudd says he is a Constitutionalist, and these problems need a solution

the courts should stop the cover up about victims who were raped and abused and who were made slaves and tortured in the states and territories , orphanages,girls homes , boys homes, remand centres, state ward homes , state run church homes, and many more ,

so why does the courts cover up for the goverment when we victims have told the truth , but the states have destroyed the proof to prove our victims case even stating this in a court case yet the victim which was me was denide justice , by the very courts who are to give justcie , and i am not the only victim the supreme court of sydney has denied justice to ,

so how can the courts get away with these cover ups of the rapes and abuses we victims suffered while under the care of the state goverment and the australian commonwealth

we are real victims we are the forgotten australians and will no longer be forgotten

from a real victim the state goverment of new south wales covers up abut , and their are many more victims the goverments have done the same to

I agree with comments about section 79. As I see it section 79 ties in with section 80 which gives us the right to be heard as a defendant or as a prosecutor by the people or peers as the law states regardless as to what the claim is be it a parking ticket or an allegation of terrorism. Only courts can decide whether or not we are to be taken of our liberties, it is well outside the restrictions of the law to be taken of our liberties by a government department. Judges capital "J" is an indication of an administrative government department, small letter "j" is an indication of a proper court with peers as the judge. Capital "C" Courts are also an indication of administrative government departments instead of "c" being an indication of a real court.

Huffnpuf and Daryloflife are going to be disappointed.

PtB only starts these threads as a way to harp on his single issue: replacing Australian law and government with Christian theocracy.

Sancho should go back to serving Don Quixote, and engage his brain before he engages his fingers and lets them loose on a keyboard. Some people are too slow to grasp an idea whose time has come, or look behind a thread of words to see what they actually mean. He would make a good High Court Judge, if his latest post is any indication of his intellectual prowess.

Too many threads descend in denigration of one another, and one of the blights on the Keating years was the string of near obscenities that Paul Keating seemed unable to refrain from uttering, about his opponents. The learned scholars in the United States who developed the art of deconstruction in order to determine the meaning of an Act of Parliament would have a field day with s 79 Constitution.

Bob Hawke decided that it was important in finding the context in which words were strung together in order to determine what the will of the Parliament was at the time that an Act was made. We are looking here at the Constitution which is the most important Statute in the Commonwealth, and Panza wants to mock the attempt: As they occasionally said to Keating: Shame, Shame.

Hawke introduced further instructions into the Acts Interpretation Act 1901 ( Cth) so that thinking Australians could be expected to interpret Statute Law better, and the section he introduced was S 15AB. Use of extrinsic material in the interpretation of an Act. This was added in 1984, and I think it is fair to say that S 79 Constitution is within S 15 AB (1) (b) (i) The provision is ambiguous or obscure. S 79 was not ambiguous or obscure to people in 1900. Everyone knew what to expect from a court, and what judges were, at that time.

When we consider the recent decision of the High Court in Pape v The Commonwealth where five out of the seven Justices, stated that S 15A Construction of Acts to be subject to the Constitution, is not controversial, then clarifying S 79 is of paramount importance

Every section of an Act shall have effect as a substantive enactment without introductory words. This is S 12 of the Acts Interpretation Act 1901 ( Cth). This was one of the very first legislative acts of the Parliament of the Commonwealth. S 13 (2) reads every schedule to an Act shall be deemed to form part thereof. Section 79 Constitution is one of those sections that stands alone, there are no introductory words, it is not a Schedule, although the Oath of Allegiance to Her Majesty Elizabeth the Second is. The clarification of this small section, with eighteen words in it, is not something that should be left to lawyers.

We are all members of the Commonwealth. ( even Sancho) and we all speak English, more or less. Surely it is not too much to expect that we should be assisted in every way to read and understand the instructions in the instruction book. I once wrote that the law should be as precise and clear as an engineering drawing. I still adhere to that view.

There is no shortage of argument that jury trial is as of right in criminal matters. What about cases where the State is a criminal. There is a man arguing in front of the Supreme Court in Queensland right now, at Toowoomba, that Peter Beattie, Anna Bligh, Andrew Fraser and Warren Pitt, are criminals, who illegally amalgamated the Clifton Shire out of existence despite a plebiscite forbidding the amalgamations. If it is tried as a criminal matter with a jury he could win.

He has some powerful arguments, that as far as I know are not yet posted on the web. However in order for lawyers to be able to decide cases in their offices, and have their decisions carried out by Judges, with the clients paying both sides lots of money, the provisions of S 79 have to be set aside.

The failure to declare what S 79 Constitution actually means, by successive governments since 1900, has served Australia badly in broken and destroyed lives that have been shattered by bad judgments

When I was at law school, I was the oldest student in the class. I was at the time 58 years old. An old geriatric in the eyes of most of my fellow students. I wrote a couple of pieces as assessable assignments that counted towards the end mark and decided whether the student failed or passed.

The first one was on O’Loughlin J’s decision of 700 pages, in respect of the stolen generation. I harshly criticized it, on numerous grounds, and when the highly intelligent lecturer gave out the results, she called me aside. She said it was obvious that I had done an enormous amount of in depth research, but she did not have a clue what I was trying to say.

She kindly allowed me to rewrite it, and when I inserted a footnote to every controversial word in it, ( footnotes don’t count in the overall word limit) I was given a good mark. I was vindicated in my opinion when Kevin Rudd said sorry to the stolen generation, and clarification of S 79 will make that sorry mean something. Lorna Cubillo and Peter Gunnar are still waiting for justice.

The second occasion was an assignment on the “Kable Principle”. I hold controversial views on what it means, and on two occasions I submitted assignments on its contents. Like lots of novels as written by the High Court it runs to 120 pages, and it takes a Welsh miner to find the gems hidden in it. The Judge of that assignment was a thirty year old Roman Catholic woman, and an otherwise competent lawyer. She gave me five marks out of thirty five, for a job I had spent forty hours work writing, with every controversial word footnoted. She would not let me rewrite it, so I decided to move on.

Next semester I was at another University, and essentially wrote the same assignment with totally different results. The whole point is if S 79 Constitution was not an obscure provision, beyond the ordinary comprehension of a Judge, it would not need clarification

While you are in the mode of changing the world, PtB, could you also get the government to agree that retrospective, or retroactive, legislation should not be permitted in Australia.

It is pure expediency, and is in direct contravention of Article 15 of the International Covenant on Civil and Political Rights, which Australia has signed and ratified, and which provides that "no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed."

Australia is a serial abuser of this Article, which should be enshrined in our Constitution, but isn't.

When the doctor diagnoses the cause of a cancer infecting a body, he can then direct his knife or another treatment to fix the problem. The cause of the cancer afflicting the administration of law in Australia is the failure of the lawyers to read and understand and apply s 79 Constitution. Mr Pericles, if you would like to read the decision of R v Kidman (1915) 20 CLR 425, a full version of which is to be found here, http://beta.austlii.edu.au/au/cases/cth/HCA/1915/58.html you will see that in 1915, the six learned doctors of law, were of no doubt that there was one justice stream, in the Commonwealth and it was to maintain the Kings peace, that the common law was part of the Constitution. Most retrospective offences were there anyway.

The failure to accept the International Covenant on Civil and Political Rights is a symptom of the underlying disease. It should be a bipartisan declaration that clarifies S 79 Constitution. The lack of an effective opposition both before and after 2007, has led to huge injustices. The disease has been blocking the application of a number of laws passed by Paul Keating’s government that should be immensely beneficial. One of these is the Trade Practices Act 1974 and if the National Competition Policy was applied to lawyers, and the courts of the Commonwealth started being bastards to the Courts of the States, instead of playing matey matey, and refusing to compete for business, then the cancer/canker could be cured.

Kevin Rudd should be the surgeon, and take a knife to the legal profession. He can do this by removing the doubt about S 79 Constitution. He is an intelligent man, and more than a match for Turnbull. He cannot take the electorate for granted any more than John H could. It used to be said that a government is only as good as its opposition, and Turnbull should be a surgeon too. I just want this world or at least our part of it, to be disease free both in medicine and law. It is as if the Constitution has AIDS

That's exactly my point.

The "reasoning" in R v Kidman for the permission to retrospectively legislate is clear:

"There is no prohibition in the Australian Constitution against passing ex post facto laws, as there is in the American Constitution, both as to the States and the United States. The prohibition to the United States apparently assumes that Congress would otherwise have had the power."

The rationale of this particular m'learned friend is "It is specifically disallowed in the US Constitution. Therefore, if it doesn't appear in the Australian Constitution, we must have intended for retroactive legislation to be allowed"

I'm pretty sure this has been tested in court a couple of times in the intervening years, too, and has somehow avoided the description "crazy law".

So I can do something perfectly legal today, having taken all the legal advice available to me, and be slapped in jail for it if Kevin takes it into his head to change the Law, at some unspecified time in the future.

And this is not a trivial issue, as I have personally experienced.

So, go for it, PtB.

Rattle their cages. Wake them up. There are injustices everywhere we look, happening all around us, every day.

Just do me one favour, though.

Don't bring Magna Carta into it.

Please?

Most people understand that the basis of computer science is an on–off switch. This is what a transistor is. The basis of law is simply put the same, except in law it is right-wrong. In both there should be no grey areas, but man in his absolute ingenuity has invented confusion.

In the Pape decision, the High Court or at least five out of the seven who considered the question, stated that there is an on-off switch for legislation. The on-off switch is in the Constitution. Understanding that document is fundamental to understanding all law. In a Muslim country the Constitution is actually the Q’uran, but Muslims will tell you it is often observed in the breach. It is likewise in our country.

There is lots of legislation like the Habeas Corpus Act 1640 16 Charles 1 Ch X. which say the same thing as S 15A Acts Interpretation Act 1901 ( Cth) which says that anything that contradicts the constitution is void. The late Lionel Murphy, despite his professed atheism, was a very good lawyer, and one of his more memorable pronouncements before his untimely death, in a case called Metwally, at paragraph 4, has to do with the fact that if a law is not in line with the Constitution, it is not a law no matter where it is made. He stated that the courts cannot make laws for individuals, outside the Constitution, and neither can a Parliament or a Council.

This is why it is important to clarify S 79 Constitution. If KR clarifies S 79 Constitution, with or without the assistance of the Parliament as a whole, he will do his country a great service. We have a single profession with a choke hold around our collective necks, and it is only able to do this because we all are of two minds about S 79 Constitution. It is as if the heart of the law is in fibrillation. The patient will die if it is not rapidly fixed, and Rudd needs to put a cardiac Wacker Packer, on the Constitutional chest of Australia

Back to S 79, and the first five words are the federal jurisdiction of any court. I am glad you have read the Kidman decision, and I hope you got the bit where they said,

If, then, by the common law, as applied to the new fact or combination, in this case the sovereignty created by the Constitution Act, which the King exercises by new representatives in right of the new Commonwealth, it appears that any person in Australia has obstructed or taken any step towards obstructing His Majesty, the Commonwealth, as representing the King in that sovereignty, has a justiciable matter of complaint—a matter capable of judicial solution, according to a settled legal standard.

The settled legal standard was jury trial in both civil and criminal matters. The King does not discriminate, and discriminatory legislation, has been illegal since time immemorial. Nasty lawyers have invented discrimination. One of those nasty lawyers was Menzies. In S 30 (3) Bankruptcy Act 1966, he gave the representative of the King, a Judge, power to sit with or without a jury. Menzies used the word Court, and that is NOT the word in s 79.

Rudd has changed that word in the Trade Practices Act 1974 and Australian Securities and Investment Commission Act 2001 from Court to court, in some very significant sections, but he needs to finish the job, and declare what S 79 means.

The next six words are may be exercised by such number of judges. Surely that cannot mean One Judge. May is a facultative word, allowing federal jurisdiction to be exercised, but if Kidman is rightly decided, there is only one jurisdiction in Australia and it is federal.

If that is the case, then all State Courts are illegal, like the Land and Environment Court, CTTT in NSW and VCAT in Victoria, because they don’t have judges, just a Judge. If a Judge exercises State Jurisdiction, he is indictable.

Rudd’s measure will be seen by how long he takes to carry out his promise to uphold the Constitution. He has the power, and should use it

For 109 years, the lawyers have ruled supreme. Like a case of HIVAIDS, lawyers for the first 109 years of the existence of the Commonwealth have been buying and selling people, and since 1927, started doing it without reference to the law.

The first lawyer rebellion occurred in South Australia, where S 5 of the Juries Act 1927, took juries out of civil courts. No one followed until 1970, when the New South Wales lawyers persuaded the Parliament of New South Wales to repeal the common law. This campaign was funded by Abraham Gilbert Saffron, and would have failed, had the Commonwealth been diligent fighting organized crime.

I am reminded of the Book of 1 Kings:18. You all know the story, where 450 prophets of Baal, got into a competition with the prophet of Almighty God. Both built an altar. Both called down the fire of their God, upon the sacrificial bull. Elijah let them play all day, and then took some very precious water, there was a drought on, and dowsed his bull. Zappo, it was instantly burned and he then had the false prophets killed. Then the Lord made it rain, and the drought was broken.

The poverty plague that afflicts Australia and the money drought that is causing all the problems with hospitals, schools, Police and every other government service, can be fixed, with a simple declaration of the meaning of S 79. If it is clarified, then the stream of justice will no longer run sullied with the blood of innocents, and the enormous burden of nine governments and innumerable local councils. Rules of Court will no longer authorize Judges to deny justice, and the exclusive brethren of the great deception will shoulder their just load. The correction, like an earthquake is long overdue. The word judges means ordinary people like us, not lawyers.

There are 45 legally qualified members in the House of Representatives. Each one of them should have s 79 Constitution on their notepaper. Earn your tucker you lot. Kevin is not a lawyer, but he has lots of mates who are

Hip Hip Hooray, chuck your hat in the air, break out the champagne, and celebrate.

The decision of Lane V Morrison ( 2009) published yesterday by the High Court, in which all Justices concurred, is a win for Australia’s homeless, oppressed, and the 1,000,000 odd victims of State oppression without a remedy anywhere in sight. God bless the Navy.

The Chief Justice and one other stated as follows: The noun "court" is used in varied contexts and in many senses. The Oxford English Dictionary gives the following meanings, among others: "a princely residence, household, retinue", and "an assembly held by the sovereign", a use which gave rise to the terms "the 'high court of parliament'" and "'the king's courts' of justice".

Note the absence of a Capital C. For a long time, even before Kevin Rudd was opposition leader, letters have been written to him pointing out the civil conscription into Military Justice, carried out by the States since 1986, and in New South Wales and South Australia earlier was ruled illegal by the “Kable Principle” in 1996. This was ignored and a series of replies written by underlings, has been in denial of the principle stated in S 23A Constitution, ( but so as not to authorize any form of civil conscription). What is the difference between an Army Officer exercising arbitrary judicial power, and Commonwealth Officer doing the same. Not one iota in fact,

Two phrases defined by the High Court on Wednesday are of note. high court of parliament and kings courts of justice. Not a capital letter in sight. The high court of parliament is not a Sovereign Court, as they seem to think, and a king’s court of justice, cannot be a delegate of the King, or an assembly held by the sovereign, and constituted by one man or woman.

We owe a real debt of gratitude to our serving and past service personnel. In this instance a naval officer has identified and put down a problem afflicting his civilian fellow subjects of Her Majesty Elizabeth the Second, inflicted by Liberal Governments in most instances

Senator George Brandeis, blames the previous Army Minister for the shambles exposed by yesterdays High Court decision. The stinking thinking that led to this shambles of a Court, is so deeply rooted in the Liberal Party and its born to rule mentality, that it sees nothing wrong with exactly the same type of Court, inflicting punishments day after day week after week on civilians.

Punishment is punishment, and a Judge is a disciplinarian figure, whether he wears an army uniform, a suit and no wig as the Judges of the Federal Court, or a mediaeval clown suit, like the Judges of the Supreme Court. This shambles resulted from the politicization of Bill Keelty as Australian Federal Police Commissioner, because as he was directed to fight the war on terror from external threats, he was not allowed to fight the internal terrorists made criminals by the Criminal Code Act 1995 ( Cth).

Terror as a form of government is not new. The whole purpose and object of the Criminal Code Act 1995 ( Cth) was to make people fear the judicial power of the Commonwealth. In fact the terrorists should be afraid, very afraid. To make people terrified of its power and authority the States have abolished civil juries, and we are expected to be walking around as a quivering mass of compliant jellyfish.

The NSW Land and Environment Court can inflict fines of up to $400,000 without any jury trial, on an Australian, just because he or she is resident in New South Wales. That is terror. A single Federal Court Judge can make you bankrupt, since 1966, and that is Liberal Party terror. You remain an outlaw practically for life after one of those monsters is set on you by a lawyer.

When the Liberal Party created the Federal Court it gave it power to appropriate the money for juries directly from the Federal Treasury. That was good, but it also gave them the same powers held unconstititional in Lane V Morrison. To ensure they never get challenged, all Federal Judges have made rules to exclude most from access

The only thing that can stop Kevin Rudd from declaring the law in respect of S 79 Constitution after Lane V Morrison, will be organized crime. Organised crime has split Australia into nine separate patches, each with its own Courts and Judges. New South Wales was Abe Saffron’s patch. This should do.

JUSTICE REFORM BILL 2009

Short Title: JUSTICE REFORM ACT 2009

Long Title: An Act to clarify S 79 Constitution and S 5 Commonwealth of Australia Constitution Act 1900.

Whereas the Australian Constitution provides in S 79 that the federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes, and arguments have arisen between the peoples of Australia as to the meaning of that section; To remove all doubt be it therefore enacted by the Queen’s Most Excellent Majesty by and with the advice and consent of the Parliament of the Commonwealth as follows:

1. This Act binds the Crown in all its capacities.

2. In every instance in which a member of Australian society approaches a court wherever constituted in any part of the Commonwealth, or the external Territories and Norfolk Island, a Judge must not refuse any request for relief, in a contested matter, must not dismiss any application, and must not make any arbitrary judgment whatsoever, but must empanel a jury if either party requests such relief, and carry out the verdict of the jury and not otherwise.

3. To remove all doubt, this Act applies throughout the Commonwealth notwithstanding anything in the laws of any State or of the Commonwealth, or in any Rules of Court.

4. Nothing in this Act is taken to prohibit any Judge or Magistrate making a judgment by consent of all parties obtained in writing.

5. Failure to abide the provisions of this Act is taken to be an offence against S 43 Crimes Act 1914 ( Cth) as enacted, and a Statutory penalty of $33,000 may be recovered in any court, unless a jury shall refuse to order its imposition.

6. This Act takes effect upon receipt of the Royal Assent

PtB,

Your post of Thursday, 27 August 2009 at 4:28:31 PM caught my eye. You used an expression very similar in its wording to one used in the Constitution. That expression, as used by you, was: "( but so as not to authorize any form of civil conscription)". You had, in the phrase preceding your use of this expression, claimed that it was used in Section 23A of the Constitution.

There is, and has never been, any Section 23A of the Constitution.

Nevertheless, I knew where a parenthetical qualification as to a provision of the Constitution, worded very similarly to the words you quoted as constituting a principle, was to be found. To avoid any possible confusion, it needs to be made clear that what you probably meant to refer to was what I think is described as placitum (xxiiiA) of Section 51 of the Constitution. This reads:

"51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-

(xxiiiA) The provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances:"

This placitum was inserted into Section 51 of the Constitution, according to the marginal notation, by Act No. 81 of 1946, subsequent to the referendum with respect to this alteration held on 28 October 1946. And thereby hangs a tale, but before I tell it I would like to confirm your understanding as to the existence of any Constitutional prohibition of civil conscription other than that of placitum xxiiiA, which placitum if anything seems to imply that there otherwise exists such power of civil conscription.

More directly addressing the topic of this thread, given that the High Court, not the government of the day, normally settles questions as to the interpretation of provisions of the Constitution, and that the Constitution may only be altered subject to Section 128, how do you see Section 79 being clarified?

S 51 Placitum (xxxiiiA) simply declares the existing law, and civil conscription was never allowed under the common law. The act of civil conscription is an act of taking of property, in fact the use of a persons body, and since the Constitution is binding on the courts judges and people of every State notwithstanding anything in the laws of any State,it is banned to State Parliaments too, because the servant can have no greater power than his master, and the power of all State parliaments is delegated power, not Sovereign power.

Section 51 Placitum xxxi makes sure that any taking of property should be on just terms, but Rules of Court and some Legislation, now allows the Federal Court to refuse to grant just terms.

The proposed draft Bill is simply a declaratory Act,and could as easily be done by an application for a declaration in either the Federal or High Courts, if those two places allowed anything offered for filing to be filed. Currently they use Rules of Court made under delegated authority, to actually break two positive Federal Statutes, S 28 and 43 Crimes Act 1914, but because of the politicisation of the Australian Federal Police,by John Howard and others, no Judge or Registrar has ever been charged.

If Commissioner Tony Negus is a genuine Police Officer, he will facillitate the issue of Court Attendance Notices upon any Federal Court Registrar who refuses to file process, under the Crimes Act, and we could see the justice system restored to functionality.

The right to a trial in a court with a jury is a political right, and hence denial of that right is a breach of S 28 Crimes Act 1914.

Thank you for your comments.

G'Day All,
Peter the Believer, interested in a lot of your posts & this is off the subject but do you or anyone out there know where I can now get a copy of the 1997, Butterworths, Lawyers Practice & Proceedure Manual from or if someone still has one that I could borrow & copy then return, You can e-mail me direct on graysond49@yahoo.com if you can help. Thanks for your time, Dave.