chapter 696-water & constitution

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Chapter 000 –.* Gerrit,.**#** INSPECTOR-RIKATI®,

Chapter 694 WATER & CONSTITUTION* Gary, did you watch ABC 7.30 Report on Thursday 25 January 2007, about the water issue?

**#** INSPECTOR-RIKATI®, actually I also saw the comments of Premier Rann of SA on thenews and my personal views is “Good on ya”, at least a Premier with some backbone. (See also my4-2-2007 correspondence to premier M. Rann as a timely waking up to what could eventuate if suchlegislative powers are referred to the Commonwealth of Australia.)

* Why is that?

**#** Because, if States allow to corrupt their legislative powers on and on, purportedly referringlegislative powers, then the federation will be a confederation! And as I will set out later without areferendum it is and remains UNCONSTITUTIONAL and so ULTRA VIRES.

http://www.abc.net.au/pm/content/2007/s1833935.htm

MIKE RANN: The Prime Minister on Melbourne Cup Day gave us assurances of collaboration and not acting independently. The Prime Minister looked the Premiers in theeye and gave us assurances.

But now we're being told by Malcolm Turnbull, that in fact this takeover has been planned forseveral months. So the answer is, when do we believe them?

http://www.abc.net.au/news/newsitems/200701/s1833861.htm

Mr Rann says a legal challenge to the plan would be a waste of money.

"And rather than collaboration or seeking agreement, the first thing that [new EnvironmentMinister] Malcolm Turnbull talked about on radio this morning was a High Court challenge,and then boasted that he was no stranger to the Constitution.

"We want these bucket loads of cash to go into water, not into lawyers' pockets."

Again;

and then boasted that he was no stranger to the Constitution.

Well I will zero in about what I wrote about the constitution to Malcolm Turnbull. In my view, if hewas such a constitutionalist then he should have been clearer about what the current Commonwealthof Australia legislative powers are regarding water usage for trade and commerce, and why despitethe more then 100 years bickering the Commonwealth of Australia failed to provide appropriatelegislation! I will further set out matters more comprehensively and it might become clear that it isno good blaming the States for the current water dilemma where the Commonwealth of Australiafor more then 100 years failed to use its legislative powers that could have avoided a lot of harm.






How on earth can anyone then contemplate giving more legislative powers to the Commonwealth of Australia where it has so far been unable to appropriately exercise its already existing legislativepowers?

As quoted below John Howard stated;We haven't allocated any of those water rights. We haven't made any of those allocations.They've all been made by the States and they're all grossly out of kilter and we're going toaddress that problem. We're going to pick up the cost of something for which we were not inany way responsible. So that's part of the deal.

The truth is that had the Commonwealth of Australia used its existing legislative powers it couldhave avoided a lot of harm. It is therefore very much responsible for failing to act in the first place.The fact that neither John Howard or Malcolm Turnbull seems to comprehend this will likely meanthat nothing is going to get resolved.They simply are and remain to be in a state of denial, rather then to take responsibility for thefailure of the Commonwealth of Australia to uses its existing legislative powers existing in section100 of the Constitution.

http://www.abc.net.au/pm/content/2007/s1833929.htm

JOHN HOWARD: All parties must recognise that the old way of managing the MurrayDarling Basin has reached its used by date.

The tyranny of incrementalism and lowest common denominator must end.

PETA DONALD: Mr Howard will write to the States in the next fortnight asking them tohand over their powers. It's a deal he says that they should be willing to accept.

JOHN HOWARD: We haven't allocated any of those water rights. We haven't made any of

those allocations. They've all been made by the States and they're all grossly out of kilter andwe're going to address that problem. We're going to pick up the cost of something for whichwe were not in any way responsible. So that's part of the deal.

Now what I'm saying to them, if we're prepared to do something like that, you should beprepared to hand over the governance arrangements.

Hansard 17-3-1898 Constitution Convention Debates

Mr. DEAKIN.-In this Constitution, although much is written much remains unwritten

This is why we need an OFFICE OF THE GUARDIAN, a constitutional council, that advises theGovernment, the People, the Parliament and the Courts as to constitutional powers and limitations.Then this OFFICE OF THE GUARDIAN can expose what is embedded in the Constitution!Only when such an OFFICE OF THE GUARDIAN is created for every State and theCommonwealth of Australia will more sense be made out of constitutional issues.

http://www.abc.net.au/news/newsitems/200701/s1833524.htm

Mr Turnbull says the Government has the power to overrule the states if they do not agree togive up the system.






And

Mr Turnbull says he is prepared for a High Court challenge if the states resist.

"I'm not a stranger to the Constitution myself," he said.

Quite frankly it is to me sheer and utter nonsense that the Commonwealth of Australia can overrulethe States if they do not give up the system, as the Commonwealth of Australia can legislate as to“reasonable use” as to protect navigation but no more! It is the federal Court that would have to

adjudicate riparian rights if that became an issue, as I will explain later.I personally wonder what constitutional experiences Malcolm Turnbull may have, as the fact that hemight have done some litigation involving constitutional matters does not necessarily mean that heis an expert in this field or more over that he even understands what it is about. also, a person mightbe an expert in certain constitutional issues but not in others, and as such not being a stranger to theConstitution does not mean the person is an expert in all constitutional issues. Indeed, if he wassuch an expert, which I doubt, I view he would never have gone down the path of the ill-conceivedrepublican referendum.

http://orange.yourguide.com.au/detail.asp?class=national%20news&subclass=general&story_id=550532&category=General

He became chairman of the Australian Republican Movement and when in 1999 the proposalwas put to a referendum and defeated, declared that "whatever else John Howard achieves,history will remember him for only one thing he was the prime minister who broke thenation's heart".

And

Mr Turnbull is now the Environment and Water Minister and will be in a position to pushsome of these ideas forward. Through his role as the parliamentary secretary for water in thepast year and before that as a backbencher passionate about finding solutions, Mr Turnbullhas probably amassed more knowledge about Australia's water problems and what's needed to

fix them than anyone else near the seat of power.

As a Grandmaster “constitutionalist” I could only say that the referendum for a republic was utterand sheer nonsense as no one had any real notion what was constitutionally appropriate. Not evenwhat really is an “Australian citizen” and that it is not a nationality! In my view, if MalcolmTurnbull is not a stranger to the Constitution then he should have at least addressed those issuesbefore pursing for a referendum.And as parliamentarian secretary for water I view he would have done better to have spend sometime researching, as I did, what the intentions of the Framers of the Constitution were in regard of Section 100, so at the very least he could have given now precise responses to questions and not, as

it appears to me, circumvented the Commonwealth of Australia failure to legislate as to “reasonableuse”.Not unless we have an OFFICE OF THE GUARDIAN will many people become aware whatreally is constitutionally appropriate.

Clearly, Malcolm Turnbull, at least that is my understanding of the various interviews I checked,still does not seem to comprehend that the Commonwealth of Australia all along could havelegislated as to “reasonable use” of water. And, as I later will indicate, selling water hardly can bedeemed for “reasonable use”. Also, what seems to be overlooked is that once the Commonwealthof Australia legislate as to water it effectively can take over all water. In my view this is the hiddenscheme.






It is absurd for any Premier to argue that they are going to put limits or conditions on legislation asonce the Commonwealth of Australia has (that is constitutionally) legislative powers then it can doso without any restrictions, irrespective of what the States may argue. If then the Commonwealth of Australia were to privatise water and places taxation on dams, etc, then the States may just discoverthat all indirect powers will consume a lot of other State legislative powers. Let the IndustrialRelations fiasco be a lesson!Again, I view that not a single State Government should even contemplate the purported referenceof State legislative powers to the Commonwealth of Australia unless and until it first has created anOFFICE OF THE GUARDIAN, so it can obtain some independent advice as to what might beconstitutionally appropriate. After all, if such an OFFICE OF THE GUARDIAN were to advisethat without a Section 128 Referendum of the Constitution any reference of powers will be ULTRA

VIRES, then at least the State premier will know what he cannot do, rather then to go ahead blindlyand later discover it was done all wrong.

* Didn’t you write to Premier Steve Bracks of Victoria about the water issue?

**#** Well, I did my 19-1-2007 (artesian waters), 27-11-2006, and indeed my 21-5-2005correspondence to John Howard as well as Steve Brack dealt with in it considerable way.

QUOTE 27-11-2006 CORRESPONDENCEHANSARD 10-3-1891 Constitution Convention Debates (Official Record of the Debates of the

National Australasian Convention) (Chapter 33 of the CD)Dr. COCKBURN:

Parliament has been the supreme body. But when we embark on federation we throwparliamentary sovereignty overboard. Parliament is no longer supreme. Our parliaments atpresent are not only legislative, but constituent bodies. They have not only the power of legislation, but the power of amending their constitutions. That must disappear at once on theabolition of parliamentary sovereignty. No parliament under a federation can be a constituentbody; it will cease to have the power of changing its constitution at its own will.

Again;No parliament under a federation can be a constituent body; it will cease to have the powerof changing its constitution at its own will.

QUOTE 27-11-2006 CORRESPONDENCE

For example, no State can abolish the Crown and neither can validly remove references of theCrown from its legislation. Sure States may do so but then one day they may just find that all theirlegislation is ULTRA VIRES. The States (as colonies then) by having by referendums approved of the Constitution Convention Bill 1898 bound themselves and denied themselves of any powers toamend their constitutions unless the electors approved of this by way of Referendum. Likewise,they cannot refer State legislative powers to the Commonwealth of Australia unless it is approvedby a Referendum, other then where it relates to a dispute between two or more States, but not allStates regarding an issue where neither or none of the States has legislative powers to appropriatelydeal with an issue. Custody of children was not such and issue and neither Industrial Relationswithin a State. Likewise the Murray Darling Basin is not something that is in dispute where alreadya Federal Court (High Court of Australia or the Federal Court of Australia) has already jurisdictionto deal with matters.

* What about the Minister for Water, Malcom Turnbull?






**#** Look, he seemed to be a future Prime Minister candidate to me at first but I am now startingto wonder if this man really knows what he is talking about. I wonder if he is for real!Can you in any way clarify your turnabout face on him?Well, as you mention the 7.30 Report you would have been aware that he was one of those beinginterviewed.

* Yes.

**#** Well, some of what he was stating appeared to me utter nonsense.

Hold on, Malcolm was he that bad?

**#** Worse.

* No doubt you are going to explain yourself a bit, so the Reader can catch up to some details andassess himself/herself if indeed Malcolm Turnbull was talking some nonsense.

**#** You and the Reader may have a different conclusion of him at the end but nevertheless I will

try to explain something that the Commonwealth of Australia is as much at fault, if there is anyfault, as the States are, and blaming the States isn’t going to get Malcolm Turnbull anywhere.

But, lets first set out my own actions.

In 1987 I moved into a country town and was horrified seeing a person having the water runningday and night, as he stated it wasn’t costing him a cent. So, I wrote to the Government andrecommended that it changed its water charges to a basic fee and then further for usage of water. Ittook time but eventually the Government (Victoria) commenced to do so.What I also then did was to have all so called grey-water from the bath, shower, washing machinegoing into undergrounds pipes and having pebbles around the pipes it kept water in there for some

time. Meaning, that I had always a green lawn.As such, albeit I am not a greeny, I commenced to conserve water already way back in 1987. Andhad also a large watertank of which the water was used for a drinking and cooking, as the localwater supply was having too much chemicals in it in view it was in the midst of the Mallee.In recent times I have also recommended to the premier that the fire brigade uses grey water ratherthen drink water for extinguishing fires.I have recommended for years that creeks and rivers should be covered with plants, etc as to reducethe evaporation of water.Also, I became the Attorney of (now the late) JAROSLAV HLAVKA MIE AUST CP ENG, whohad his whole working life in Australia worked for the Board of Works and who was very muchpushing for decades that the underground water reservoirs (artesian basin, etc) below Melbourne

would be sufficient to provide drink-water for the entire Melbourne. Just that no one then listen tohim.

* Excuse me, this still doesn’t bring me to Malcolm Turnbull!

**#** All, right, I tried some water saving issues. Now lets see what the Commonwealth of Australia has done with its constitutional powers to protect the navigation of rivers.

* Excuse me, again, we were talking about Malcolm Turnbull and water not about navigation of rivers.






**#** My dear friend, can you listen for a minute and you may discover something worthwhile.Let me quote something;

QUOTEMr MALCOLM TURNBALL 16-3-2005House of Representatives, Parliament HouseCanberra ACT 2600Tel: (02) 6277 4279 Ref; leadership, sentry and/or cowardice, etc

Fax: (02) 6277 8510Email: [email protected]

AND TO WHOM IT MAY CONCERNMalcolm,END QUOTE

* All right, this shows you wrote to Malcolm Turnbull so what?

**#** Again, show some patience and you will get the picture.

As shown below a quotation of the 16-3-2005 correspondence to Malcolm Turnbull;QUOTE 16-3-2005 correspondence to Malcolm Turnbull

Hansard 1-2-1898

Mr. HOLDER.-We do not want to deprive New South Wales of any such power. We wishto leave that colony as free as ourselves to use her rightful share of the water for any purposeshe pleases. Who is to determine what is the rightful share? The Federal Parliament.

END QUOTE 16-3-2005 correspondence to Malcolm Turnbull

However in the interview, partly quoted below, Malcolm Turnbull did not particularly make clear,as I understand it from the interview as published, that albeit the Commonwealth of Australia had

the legislative powers to determine what water share is to be allocated it never bothered to actuallydo so.And, allegedly having John Howard on Boxing Day having some meeting with some States aboutwater and what I understand Premier M Rann stated was Malcolm Turnbull having made knownplans to be made for months, then it appears to me that John Howard was saying one thing whilecontemplating all along another thing.

http://www.abc.net.au/am/content/2007/s1833639.htm

CHRIS UHLMANN: You've studied the history of this, of course it goes back to about 1863 Ithink was the first conference and there was a huge battle over it in the Constitution, and it

says in Section 100 "the Commonwealth shall not by any law or regulation of trade orcommerce, abridge the right of a State or the residents therein to the reasonable use of watersof rivers for conservation or irrigation."

How do you get round that?

MALCOLM TURNBULL: Well it isn't an obstacle to anything that would be contemplated.

Firstly, and I congratulate you on reading it out, because Section 100 is often cited but veryrarely quoted. Firstly, it only applies to laws or regulations of trade and commerce. Andsecondly, it only protects the reasonable use of the water of rivers for irrigation and






conservation.

CHRIS UHLMANN: So that's the point the where the Commonwealth lawyers will go if westart discussing whether or not you're going to…

MALCOLM TURNBULL: As you can imagine… this, this project, this plan that is beingannounced today has been in preparation for many, many months. We've done a great deal of work at this, as you know. I'm not a stranger to the Constitution myself. And if you ask whatis reasonable use, reasonable use is by definition, getting the right balance betweenconsumptive use, agriculture, industry on the one hand and the environment on the other.

So Section 100, often cited as, you know, the lion standing in the gate, is not an obstacle.

CHRIS UHLMANN: If we're speaking of reasonable though, wouldn't it have been areasonable thing to discuss it with the States first, this entire plan, before springing it on themin a major speech at the beginning of an election year?

MALCOLM TURNBULL: We have been discussing water with the States for 100 years.

More than 100 years in fact. As you said, right back to the 19th century, even before theCommonwealth existed.

And there has been a measure of cooperation, but I get back to the fundamental premise aboutthe Murray Darling Basin. Remember, this is where 80 per cent of our irrigated agriculturetakes place. It's where two million people live and depend on the waters of those rivers. It'swhere most of our agricultural output comes from and it cannot be managed by fourgovernments all competing with each other, all with contesting interests.

QUOTE 16-3-2005 correspondence to Malcolm Turnbull

Now something else. You may be aware about water dispute between some States. Well perhaps

consider the following;Hansard 1-2-1898


Hansard 1-3-1898" I say it ought to be upset at once and at the very earliest point. As soon as ever you find

it has gone beyond the bounds you ought to say-"This thing is illegal." Otherwise you

will leave to the Ministry of the day these powers of which you are so careful, giving

them to a majority of the States and to a majority of the people. You would allow theMinistry of the day to exercise a suspending power as to whether it would enforce a law

or not, which is most dangerous.

Seems that the Commonwealth of Australia therefore has every constitutional power to regulatewater usage, and determine what is reasonable use.

Below also about “PERSONAL LIBERTY”.

Hansard 7-23-1898






Dr. COCKBURN.-We are not "previously separate states."

Mr. WISE.-Not separate? I wish we were not.

Dr. COCKBURN.-No; we are all parts of one empire.

Mr. REID.-I wish I could think so when we send goods over your border. We find that weare two bodies then.

Mr. WISE.-Mr. Clark's paper proceeds:-

under a Constitution which establishes a Judiciary with power to adjudicate controversiesbetween the several states, it thereby submits the validity of an its conduct which affects therights of citizens of the other states in the Federation to the decision of the Federal Judiciary,which is required to adjudicate by the known and settled principles of international law ormunicipal jurisprudence, as the particular case may demand. (See 6 Wheaton, page 380.)

Now, it will be observed that in that position there is no statement that all that is meant is anactual legal right. The question is whether that which is done affects the neighbouring states.

Sir GEORGE TURNER.-Do you admit that the Federal Court will allow South Australiato have a share of this water?

Mr. WISE.-I say this: That if South Australia drained all our water, whether by opening thebar of the Murray or by establishing big irrigation works, to the injury of the settlers in ourterritory, New South Wales or any settler within our territory could obtain an injunction fromthe Supreme Court to restrain her from doing so; and vice versa.

Mr. GLYNN.-Is that something new conferred by the Constitution?

Mr. REID.-You are always after some thing new.END QUOTE 16-3-2005 correspondence to Malcolm Turnbull

Now you may note that the Framers of the Constitution made clear;


AndDr. COCKBURN.-No; we are all parts of one empire.

And

to the decision of the Federal Judiciary, which is required to adjudicate by the known andsettled principles of international law or municipal jurisprudence, as the particular case maydemand. (See 6 Wheaton, page 380.)

Therefore, it is not something of Victoria versus NSW as we are and remain all parts of “ one

empire” and no referendum succeeded to change this. Hence, we remain as Edmund Barton (bornin NSW) on 2-3-1898 (Hansard) stated;

“We are all alike subjects of the British Crown. ”Meaning, we are and remain to be British nationals!

It shows also that the Federal Parliament not the Federal government decides what is fair usage of water for each State. It also indicates that the usage (such as riparian rights) is to be considered






according to International law provisions, indeed, the Framers of the Constitution discussed this atgreat length.

Briefly getting back to Edmund Barton and considering “Australian citizenship” not being anationality but rather involving political rights and franchise issues consider this;

Hansard 2-3-1898 Constitution Convention Debates

Mr. BARTON.-Yes; and here we have a totally different position, because the actual right which

a person has as a British subject-the right of personal liberty and protection under thelaws-is secured by being a citizen of the States. It must be recollected that the ordinaryrights of liberty and protection by the laws are not among the subjects confided to the

Commonwealth.

(And in regard of citizenship;)Mr. BARTON.-

I took occasion to indicate that in creating a federal citizenship, and in defining thequalifications of that federal citizenship, we were not in any way interfering with our

position as subjects of the British Empire. It would be beyond the scope of the

Constitution to do that. We might be citizens of a city, citizens of a colony, or citizens of a Commonwealth, but we would still be, subjects of the Queen.And;

If we are going to give the Federal Parliament power to legislate as it pleases with regard

to Commonwealth citizenship, not having defined it, we may be enabling the Parliament

to pass legislation that would really defeat all the principles inserted elsewhere in the

Constitution, and, in fact, to play ducks and drakes with it. That is not what is meant bythe term "Trust the Federal Parliament."

As such the 1999 referendum for the Commonwealth of Australia to become a Republic was utterand sheer nonsense, and neither the Monarchist or the Republican movement knew what they were

talking about.


Hansard 31-3-1891Sir SAMUEL GRIFFITH:

There must be some method, and we suggest that as a reasonable one. With respect toamendments of the constitution, it is proposed that a law to amend the constitution must

be passed by an absolute majority of both the senate and the house of representatives;

that, if that is done, the proposed amendment must be submitted for the opinion of the

people of the states to be expressed in conventions elected for the purpose, and that then

if the amendment is approved by a majority of the conventions in the states it shallbecome law, subject of course to the Queen's power of disallowance. Otherwise the

constitution might be amended, and by a few words the commonwealth turned into a

republic, which is no part of the scheme proposed by this bill.Again;

Otherwise the constitution might be amended, and by a few words the commonwealthturned into a republic, which is no part of the scheme proposed by this bill.


QUOTE 16-3-2005 correspondence to Malcolm TurnbullTo my horror, in Dang, Ex parte - Re MIMA M118/2001 (18 April 2002) High Court of Australia Inoticed some of the following comments;






KIRBY J: There is no mention of citizenship in the powers of the Federal Parliament.

GLEESON CJ: What is the source of the Parliament's power to make laws about

citizenship?

GLEESON CJ: How does the power to make laws with respect to naturalisation sustain

section 10 of the Citizenship Act, which says that:

KIRBY J: My recollection is that the powers of the Congress do extend to citizenship.

The US congres has absolutely nothing to do with the issue of Australian citizenship, this as the USconstitution has “citizenship” and “Naturalization” together, while the framers of theCommonwealth Constitution bill 1989 (commonwealth of Australia Constitution held that thepowers to define/declare citizenship rested with the States and was and remained their sovereignpowers, while the powers of naturalization was provided to the commonwealth, upon federation.END QUOTE 16-3-2005 correspondence to Malcolm Turnbull

The purported Australia Act 1986 is also ULTRA VIRES in that regard.QUOTE 16-3-2005 correspondence to Malcolm Turnbull

Hansard 1-3-1898;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 forthe time being in each state might say-"We are favorable to this law, because we shall get£100,000 a year, or so much a year, from the Federal Government as a subsidy for ourschools," and thus they might wink at a violation of the Constitution , while no one couldcomplain. 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 may unanimously agree?

Why have this provision for a referendum? Why consult the people at all? Why notleave 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.


QUOTE 16-3-2005 correspondence to Malcolm TurnbullHansard 1-3-1898

[start page 1683]Mr. SYMON.-It is not a law if it is ultra vires.

Mr. GORDON.-It would be law by acquiescence. It would remain a law until it was

attacked.

AndMr. GORDON.-

Once a law is passed anybody can say that it is being improperly administered, and itleaves open the whole judicial power once the question of ultra vires is raised. Under theclause, as I have amended it, it will not prevent the plea of ultra vires being raised where it isaccompanied with the plea of a conflict of law. If there is a state law and a Commonwealthlaw on the same subject, every citizen is entitled to know which be should obey. If he joins a

plea of ultra vires with a plea of conflict of law, that ought to be heard.







* How is this relevant to the water issue, if I may ask without getting my head bitten off?

**#** Well, the States have been purportedly referring legislative powers to the Commonwealth of Australia, such as in 1986 as to children not of a marriage, the State of Victoria in 1996 thepurported reference of Industrial Relations, and now John Howard wants States to “refer”legislative powers to the Commonwealth just that Section 51(xxxvii) is not for this kind of reference of powers. Do keep in mind that after a 5-year legal battle I succeeded on all

constitutional grounds I raised, in fact none were challenged by the lawyers for the Commonwealthof Australia, and so do have a good perception about certain constitutional issues.

South Australia has every right to a riparian right as governed by International law! The FederalCourt has therefore powers to make such orders as it deems appropriate to ensure that SouthAustralia (in this example) gets sufficient water if other States were the Defendants. It does not takeany powers of the Commonwealth of Australia to deal with that.

But lets get back to the 16-3-2005 correspondence to Malcolm Turnbull and consider what theFramers of the Constitution had to say, albeit one must also consider that Section 96 defeated bythem was later inserted before the Commonwealth of Australia constitution bill was passed by the

British parliament;

QUOTE 16-3-2005 correspondence to Malcolm TurnbullHansard 17-2-1898 (Re Section 96 of the Constitution)

Mr. OCONNOR.-It is nicely wrapped up. Any one who reflects upon the conditions whichmust exist before this provision can be brought into operation will see that it assumes that thestates must be reduced to a condition of pauperism before they can take advantage of it.

Sir JOHN FORREST.-What would you do if they were?

Mr. OCONNOR.-I will come to that. Mr. Wise seems to be of opinion that there is

some power implied in the Constitution to give such aid. Now, from the considerationand study which I have been able to give to the Constitution, I have no hesitationwhatever in saying that there is no such power implied. The Constitution is formed forcertain definite purposes. There are definite powers of legislation and definite powers of administration, and the clause that the Right Hon. Sir John Forrest called attention to justnow-clause 81-expressly provides that the revenues of the Commonwealth shall form oneconsolidated fund, to be appropriated for the public services of the Commonwealth in themanner and subject to the charges provided in this Constitution.

Mr. WISE-The order and good government of the Commonwealth would come under theterm "public services of the Commonwealth."

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

the powers of the Commonwealth, especially when dealing with the expenditure of themoney of the taxpayers. In such a case there will be a great deal of care taken to keep thenose of the Federal Parliament to the grindstone in the matter of this expenditure. I do not

think any expenditure will be constitutional which travels outside these limits. We mustremember that in any legislation of the Commonwealth we are dealing with the Constitution.Our own Parliaments do as they think fit almost within any limits. In this case the

Constitution will be above Parliament, and Parliament will have to conform to it. If anyAct were carried giving monetary assistance to any state it would be unconstitutional,

and the object sought would not be attained. That brings me to the question of whether it is






desirable that there should be any such power either expressed or implied. I have no hesitationin saying that it would be a disastrous thing for the future of the [start page 1109]Commonwealth if there was any such power given.

Hansard 17-2-1898;

Mr. ISAACS.-You are referring to paragraph (4) of clause 52?

Mr. HOLDER.-Yes.

Mr. OCONNOR.-But that money could not be spent upon any object the FederalParliament thought fit.

Mr. HOLDER.-I want an expression of opinion which shall be authoritative on the point. Isee that, according to the provision I have quoted, there is power given to the FederalParliament to borrow money on the credit of the Commonwealth, and I say again that I do notknow of any limitation of the expenditure of that money except the limitation which would bespecified in the Loan Act authorizing the borrowing of the money. Of course, these wordscover the raising of the money for the building of railways for instance, and in such a case thelimitation would be the terms of the Loan Act. But is there anything anywhere to prevent aLoan Act being passed by the Federal Parliament authorizing the raising of a certain sum of

money, the proceeds of which loan might be divided according to the terms of the Act amongthe states according to their needs, or upon some other principle?

Mr. GLYNN.-The first three lines of clause 52 affect that point.

Mr. ISAACS.-The money must be expended with regard to "the peace, order, and

good government of the Commonwealth," not of the states.

It must therefore be clear, that, as set out elsewhere in this document, the spending of moneys isvery limited, and only for the;

The money must be expended with regard to "the peace, order, and good government of the Commonwealth," not of the states.

Section 96 was defeated during the Constitutional Convention Debates, but was insertedafterwards. As such, in that regard Section 96 must be interpreted as was debated by the Framers, tobe for assistance of the states only and not at all for purposes such as education and a host of otherissues outside constitutional provisions!END QUOTE 16-3-2005 correspondence to Malcolm Turnbull


Mr. OCONNOR.-But that money could not be spent upon any object the FederalParliament thought fit.


With Section 96 inserted it means that the Commonwealth of Australia in fact can fund for thewater management without needing to have any legislative powers. It can do so as a grand by allStates to the States that need it.It should be clear that the Commonwealth of Australia cannot spend money willy nilly, such ashaving some future funds as it must return to the states all surplus after it has paid for all necessarilyexpenditure it has regarding the running of the Department and the Government. So, if theCommonwealth were not to fund for water projects then the money still need to be returned to theStates. So, why should the states refer legislative powers to the Commonwealth of Australia to getmoney that belongs to the States in any event. It is not that John Howard gives the money out of hisown pocket, he uses monies out of consolidated Revenue and all monies in the ConsolidatedRevenue belongs to the States.






Sir GEORGE TURNER: All surplus revenue?

Mr. BARTON: I really do wish that hon. members of the Finance Committee would givesome little consideration to their own report.

Sir GEORGE TURNER: All surplus revenue will include revenue from every source?

Mr. BARTON: These are the instructions we got:

Shall be distributed month by month among the several States in proportion to thenumbers of their people as shown by the latest statistics of the Commonwealth.


* Hello, you are back to surplus!

**#** I know, but it was part of the 16-3-2005 correspondence. It backs up what we just discussed.


Mr. GLYNN Does that put a maximum on military expenditure?

Mr. PEACOCK: A maximum on all expenditure!

Mr. BARTON: It seems to me to put a maximum on all expenditure, because the whole of

the expenditure cannot exceed the total yearly expenditure in the performance of the

services and powers given by the Constitution , and any powers subsequently transferredfrom the States to the Commonwealth.

Mr. SYMON: Does that prevent any increase in case of war?

Mr. BARTON: Yes.


We see the Government of the Day suddenly making announcements of payments, for giving birthetc, but clearly it is and remains unconstitutional if it was not in the budget and also once the budgetis locked in it remains so for the rest of the financial year, and not even in wartime can it be altered.

* A bit rough don’t you think?

**#** Not at all. How on earth can anyone run a business if taxation changes with the minute. Afarmer making little profit at all could be wiped out if taxation was to rise suddenly whereas he mayhave to plan a year ahead all cost involved in the farm. The same with manufacturers who may plan

their sales price on what is relevant and if they sign a contract only suddenly being faced with asteep increase in taxes then it would jeopardize their business severely.

* But a war, surely?

**#** QUOTE 16-3-2005 correspondence to Malcolm TurnbullMr. BARTON (New South Wales).-

Of such is the power to summon and dissolve Parliament, to which no one who

understood these matters would dream of adding the words "in Council." But yet these

rights can never be exercised without the advice of a responsible Minister, and if that

advice is wrongly given it is the Minister who suffers. Then, again, there is the






prerogative right to declare war and peace, an adjunct of which it is that the Queenherself, or her representative, where Her Majesty is not present, holds that prerogative.

No one would ever dream of saying that the Queen would declare war or peace without

the advice of a responsible Minister. Wherefore, we all came to the conclusion, as

constitutional writers have long come to the conclusion, that the prerogative is given in

trust for the people, and is, therefore, only exercised at the instance of a responsibleMinister. I should like to know whether there would not be a revolution in England if the

Queen chose to declare war or to make peace without the sanction or advice of a

responsible Minister? That would be as absolutely gross an infraction of the Constitution asan attempt to abolish the House of Commons, as the advent of a second Protector, not onlytaking away the bauble, but taking all those who surrounded it. Do we not then come to this

conclusion, that the Constitution is absolutely safe in this form as we understand it, that

you can not have a prerogative of the Crown in these modern days which can be

exercised without the advice of a responsible Minister if a responsible Minister chooses

to advise?And

Mr. BARTON.-Yes. The Queen is the Commander-in-Chief of the British Army. She

has the sole power of making peace and war. According to constitutional assumption it isher army. But who exercises the control of the Imperial Army? Is it not the adviser of

the Queen? Would there not, as I said before, be a revolution if the Queen exercised herpowers without consulting her Ministers?

And

Mr. BARTON.-The term "Governor-General in Council " when used means the

Governor-General in Council with the advice of the Executive.

Mr. DEAKIN.-And what does "Governor-General" mean?

Mr. BARTON.-That means the ordinary powers intrusted to the Governor-General by

the Queen.

Mr. DEAKIN.-And these are to be exercised by him only on the advice of his

Ministers?

Mr. OCONNOR.-When you only find the term "Governor-General," that means theprerogative.

And

Mr. OCONNOR.-I will deal with that question later on. The Governor is Commander-

in-Chief of the Forces by virtue of his position. But the Governor cannot move a step hecannot obtain possession of a rifle or a cartridge without the consent of his Executive. It

is a merely nominal appointment, and the power which he gets nominally he cannotexercise without the means which are supplied by his Executive-by the Governor with

the advice of his Executive. That is recognised, not only in the Governor's instructions,

but in all the Acts dealing with the regulation of the volunteer forces. For instance, in thevery Act in New South Wales which Mr. Brunker referred to, and under which a dispute

occurred, the Governor is described as Commander-in-Chief of the Forces as the

Queen's representative.

And

Mr. SYMON.-A written Constitution is not exhaustive. We have implanted responsiblegovernment in this Constitution, but we have not said so in so many words. We must






have some regard to the instrument we are framing, and we ought to look upon it as aConstitution with plenty of elasticity, under which all the constitutional usages will apply

and be interpreted. If the Commandant was a kind of Jack-in-office, and wanted to run

his army where he ought not to, you could dismiss him. If the Governor-General

interfered unduly you would have to say respectfully-"You must not interfere in these

matters; if you do, we shall repeal the Act, and there will be no army; you will beCommander-in-Chief merely nominally." I hope the words will not be inserted.


We have seen this idiotic WAR AGAINST TERROR, which is a war against individuals and inreturn individuals have declared war on the Commonwealth of Australia and in the process killed88 Australians in Bali bombings. Now, lets not get involved in such nonsense, and the so calledWEAPONS OF MASS DESTRUCTION argument, as the armed invasion into the sovereignnation Iraq was and remains unconstitutional as the governor-General could only authorise anarmed invasion by publishing in the Gazette a DECLARATION OF WAR. This never occurredand as such those involved in the invasion may face charges within Section 24AA of the Crimes

Act (Cth) at the very least. So why should a farmer or a other producer have to have his businessenterprise destroyed by some federal government taking the law into their own hands and

unconstitutionally wage a war. That is why the Framers of the Constitution made the governor-General the Commander in Chief of the armed forces, so the Governor-General could then assess if any advise by the Minister of Defence to authorise Australian troops to go to war, was ultimately inthe best interest of the GENERAL COMMUNITY or he simply should decline to publish aDECLARATION OF WAR.The fact that the Governor-General did not publish a DECLARATION OF WAR underlines he didnot authorise any Australian forces to invade Iraq.It might have been that the governor-General may not have wanted to publish a DECLARATIONOF WAR because of the financial cost involved to the GENERAL PUBLIC and he deemed therewas no justification to authorise the invasion of a sovereign nation. Whatever it is, it underlines thatthe Federal Government is bound to operate within the constitutional provisions and within the

budget set for the financial year.

You must understand also that the States must have a certain security that they are getting on amonthly basis their part of the Consolidated Revenue to manage their businesses. After all, it aretheir citizens who are paying the taxes.

* Don’t the State Government raise taxes otherwise?

**#** Call it taxes, duties or otherwise, but that is only to make up the shortfall of the part of thesurplus of the budget they receive, and should not be their main source of income.As I then also wrote to Malcolm Turnbull;


Hansard 8-2-1898

Mr. BARTON.-Yes, since then, as is pointed out in a little handbook which my honorablefriend lent me. But the question for us to consider is whether a court like the Federal HighCourt or the Privy Council would ever come to such a conclusion. One would think it highlyimprobable. The real question that may arise under this Constitution is whether theCommonwealth can make a law establishing or prohibiting the free exercise of any religion. I

take it that in the absence of a provision in the Constitution conferring that power upon

the Commonwealth it will be impossible for the Commonwealth to do so. For this reason






I think we need scarcely trouble ourselves to impose any restrictions. Under aConstitution like this, the withholding of a power from the Commonwealth is a

prohibition against the exercise of such a power. If the amendment of the honorablemember were adopted, the clause would read:-

A state shall not, nor shall the Commonwealth, make any law prohibiting the free exercise of any religion, or imposing any religious test or observance.

Hansard 2-3-1898Mr. REID.-I suppose that money could not be paid to any church under this

Constitution?

Mr. BARTON.-No; you have only two powers of spending money, and a church could

not receive the funds of the Commonwealth under either of them.


Again;Under a Constitution like this, the withholding of a power from the Commonwealth is a

prohibition against the exercise of such a power.

Therefore, the 14 November 2006 Industrial Relations decision by the High Court of Australia wasalso floored, but that will be another book to address the issue. However, water management is not aCommonwealth of Australia powers other then the Federal Parliament could legislate as to what isreasonable for a State to use on water, as this falls under navigation of rivers, if it effects the abilityof any boats to use the river.

Take for example another quotation of that correspondence;QUOTE 16-3-2005 correspondence to Malcolm Turnbull

Mr. HIGGINS (Victoria).-

The Commonwealth shall not make any law prohibiting the free exercise of anyreligion, or for the establishment of any religion, or imposing any religious observance,

and no religious test shall be required as a qualification for any office or public trust

under the Commonwealth.


As such, the Commonwealth cannot make any laws , such as Section 245 as to voting beingcompulsory against any person who objects on religious grounds. And, “religious grounds” mustinclude “secular grounds” as otherwise the legislation is for this unconstitutional also. And, as theFramers of the Constitution , in April 1897, specifically refused to give the Commonwealth of

Australia powers to make enrolment and voting compulsory and the 1915 contemplatedReferendum was never proceeded with to give such legislative powers then Section 245 CEA 1918remains unconstitutional, as I successfully argued in Court also.

No matter how many lawyers there may be in any parliament few if any would comprehend asextensively what certain constitutional provisions and limitations are about as I do.QUOTE 16-3-2005 correspondence to Malcolm Turnbull

Hansard 1-3-1898

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 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.


Another quote;


Hansard 10-3-1891

Mr. DIBBS:where we are giving the people of the country practically a free education-and it should becommon to all Australia-we should instil into the minds of our children the necessity fortraining, and, as a quid pro quo for that free education,


Well, this free education is another example how it has gone of the wheels, so to say.As I quoted in my 15-3-2005 to Malcolm Turnbull;

QUOTE 16-3-2005 correspondence to Malcolm TurnbullHansard 21-1-1898

Mr. REID.-

But do not let us forget that under the state arrangement of such matters there arescores of systems which can be carried out, but under the federal jurisdiction the source

of the revenue for these old-age pensions will be strictly limited to Customs or direct

taxation. There is no power in the Federal Parliament to carry out ideas which have

been suggested with great force in the different colonies that these pensions should be

derived by a certain system of licences on places of popular entertainment-taxes onadmissions to theatres and race-courses.


Well we have a GST that does it now.

It must be clear that my correspondence to Malcolm Turnbull was comprehensive and now lest seewhat Malcolm Turnbull had to say for example at the 7.30 Report interview;

http://www.abc.net.au/7.30/

QUOTE

MALCOLM TURNBULL, INCOMING WATER AND ENVIRONMENT MINISTER:That's one way, it's a simple way of looking at it. There has been over allocation, and it's been

based the over allocation, we've been able to get away with the over allocation, if you like,because the last half of the 20th century was particularly wet and it was if you look at, say, thesecond half of the 20th century versus the first half it was much wetter, and there has beenobviously a pretty complacent assumption that those wet years would continue. Now the onlysound expectation, sensible expectation, you can have is that the years ahead of us are goingto be dryer and hotter. We've been through them before. It was like that in the first part of the20th century. So we have to remember, and the PM made this point in his speech, it's a reallyimportant one, rainfall averages are almost meaningless in Australia, because the volatility isso great. Every farmer knows that. They might be in a, you know, 25 inch rainfall area butthey never get 25 inches. It's either a lot lower or a lot higher, and that has a lot of implications, both for the environment and for the type of agriculture that you support.






KERRY O’BRIEN: Can we be very clear about what you mean when you sayCommonwealth control. Do you plan to take over responsibility for all the management andimplementation of policy, not just the creation of policy, but all the implementation for theMurray Darling basin?

MALCOLM TURNBULL: The plan is to take over all of the water management activities inthe basin currently conducted by the States. We would maintain the storages, we would notnecessarily need to own bits of water, you know, storage infrastructure that belongs to theStates but we would, as the MBDC does now, maintain them and operate them.

KERRY O’BRIEN: That's all the dams?

MALCOLM TURNBULL: Yes, that's right. Hume Dam and Dartmouth dam and the variousweirs, the Menindee Lakes system and all of those storages.

KERRY O’BRIEN: What about the Snowy dams?

MALCOLM TURNBULL: Well, the Snowy Hydro is a separate business. It's part electricity,

part water storage.

KERRY O’BRIEN: You won't go there at all?

MALCOLM TURNBULL: It's got a very clearly articulated set of agreements and itscontribution to the system is, in percentage terms, is actually not as great as a lot of peopleimagine. It's important. I don't think we would need to acquire Snowy Hydro. The mostimportant thing, Kerry, is to properly manage on a uniform basis, ensuring there iscompliance, the water sharing plans across the basin so that they're consistent and that theyare complied with, that we address over allocation where it occurs, we pump this very largesum of money, there's nearly $6 billion is going to go into making our irrigation systems the

most efficient in the world. We are going to have we are going to make every drop count andwe have to do that, because if we want to maintain a big agricultural base in southernAustralia, and do so in circumstances where we're going to have less rain and of course hottertemperatures so there will be even less runoff, in those circumstances you've got to use wateras efficiently as you can, and this program will do that.

END QUOTE

Again;There has been over allocation, and it's been based the over allocation, we've been able to getaway with the over allocation, if you like, because the last half of the 20th century wasparticularly wet and it was if you look at, say, the second half of the 20th century versus the

first half it was much wetter, and there has been obviously a pretty complacent assumptionthat those wet years would continue.

Now, if there was an over allocation that caused the river to be in the condition as it now is, such asthe Murray, and this has been going on since about the last half of the 20 th Century, one may ask why on earth did the Federal Parliament then not step in and limit the water taken from rivers?After all that was the power of the Commonwealth of Australia to protect navigation of rivers.If the Commonwealth of Australia could not even manage to look after navigation how on earth canwe than expect it will do any better with the Murray-Darling basin?






Also, is it not nonsense to claim that the Snowy Hydro will not be involved, as once theCommonwealth of Australia takes over water management then it is to include all watermanagement, not just the Murray Darling Basin, as the Framers of the Constitution made cleareither the legislative powers is with the States or it is with the Commonwealth of Australia but notwith both!

Perhaps the purported water management of 10 billion dollars may soon see a taxation on water?After all we hardly can belief the No GST pledge of the past!QUOTE

that we address over allocation where it occurs,

END QUOTE

The Commonwealth of Australia already had the legislative powers to prevent over allocation sincefederation and so far appears not having been able to manage this at all. How on earth can it thenclaim it will do any better if given more responsibilities?

QUOTE

We are going to have we are going to make every drop count and we have to do that

END QUOTE

Again, since federation the commonwealth of Australia could have legislated as to what it held wasto be the allocation of water for each State, yet failed miserably to do so.

QUOTEThere has been over allocation, and it's been based the over allocation, we've been able to getaway with the over allocation, if you like, because the last half of the 20th century wasparticularly wet

END QUOTE

So, for all that time the Commonwealth of Australia left over allocation continue and now wants toblame the States as if it had no responsibility itself.

QUOTE

KERRY O’BRIEN: Given that the registers of farmers’ water entitlements in the basin seemsto be a complete shambles, will you make it a priority to establish a common register forsurface- and groundwater and, incidentally, how will the Commonwealth tackle the problemof water thieves?

MALCOLM TURNBULL: Water thieves is in effect a policing issue, that’s a complianceissue.

KERRY O’BRIEN: But that's substantial, isn't it?

MALCOLM TURNBULL: Yes, it is, in some areas it is very substantial. Not question aboutthat. Particularly with groundwater, it's much harder to monitor. That's an on the ground,people problem. As far as a national basin wide register is concerned, absolutely. Thedifficulties with conveying water in the Murray Darling basin make a sort of bleak house oldsystem conveyance look straightforward. It has got to become very simple, you know, it's astandard gauge issue. It doesn't matter whether the Victorians have got a better system thanthe New South Welshmen or the South Australians, it has just got to be one system. Onestandard gauge to deal with water in the basin.






END QUOTE

Moment, who is going to do the policing. The Commonwealth of Australia has no constitutionalpowers within the states to do so (another constitutional issue), and the States hardly would want tospend huge sums of moneys on policing when the Commonwealth of Australia has all the controlsand are likely to use water as a form of tax item.

QUOTE

KERRY O’BRIEN: You've already told city dwellers that they're going to have to get used topaying more for water. Is it also time to be equally blunt with struggling and unviable farmersand simply buy them out? Is that going to happen anyway?

MALCOLM TURNBULL: That will happen. Struggling and unviable farmers who havewater rights will undoubtedly sell them. They may sell them to the Commonwealth under theprogram that we're talking about today. They may sell them to other farmers, but there is amarket for water and, of course, in a sense, this is where water trading is so important becauseit gives the battling irrigator something to sell, whereas of course if you're a battling dry landfarmer and you're not getting the rain you're used to, you really have nothing to sell. The

irrigators, as long as they've got that water right, that's going to have some value.END QUOTE

Again;Struggling and unviable farmers who have water rights will undoubtedly sell them. They maysell them to the Commonwealth under the program that we're talking about today. They maysell them to other farmers, but there is a market for water and, of course, in a sense, this iswhere water trading is so important because it gives the battling irrigator something to sell,whereas of course if you're a battling dry land farmer and you're not getting the rain you'reused to, you really have nothing to sell. The irrigators, as long as they've got that water right,that's going to have some value.

Now, Malcolm Turnbull obviously doesn’t seem to comprehend that what he had states is sheer andutter nonsense. This as the Commonwealth of Australia through the Parliament is to determine whatis reasonable use of water per State. Hence, any farmer who sells water rights obviously has inexcess to what is needed and so should not have it in the first place. Turning water into some formof commodity is making it worse rather then better. The Framers of the Constitution discussed atlength riparian (water) rights and held that reasonable use of farmers along the river should beallowed but not excessive use, and hence any selling of water rights must be taken as “excessiveuse”.

Again;

but there is a market for water and, of course, in a sense, this is where water trading is soimportant because it gives the battling irrigator something to sell,

AndStruggling and unviable farmers who have water rights will undoubtedly sell them.

Somehow Malcolm Turnbull, despite my past correspondence never seemed to have comprehendedthat selling water (water trading) was not what the Framers of the Constitution intended to bepermissible.If Malcolm Turnbull permits “water trading” then I view he is the source of the problem as heshould not accept that someone can trade water where there is a known shortage.






Also the idea of the Commonwealth of Australia buying back water rights in my view is also anutter and total nonsense.Water should not be some “commodity” for trading but is a “public” property. People down theriver in South Australia have as much right to water allocation as have those at the start of the riverstreams.As for water usage by industry, they do not fall under the category of farmers, as the Framers of theConstitution referred to, and as such industries that uses large volumes of water simply have toresort to grey water or process salt water. The Framers of the Constitution were before federationalready concerned as to the water usage from the Murray and the problems it caused to SouthAustralia. Hence, I view it is utter and sheer nonsense then for Malcolm Turnbull to take aboutbattling irrigators selling water rights as “something to sell” as this is simply not on.

For that matter, no company should be allowed to sell water from the Commonwealth of Australiaoutside the Commonwealth of Australia!

It is noticeable that the 10 billion dollars plan somehow ignores the Perth water crisis. As if that isnot a major issue. How on earth could Western Australia accept for a moment that 10 billion dollarswill be spend on certain states while it is, so to say, left in the cold! It may underline that there is no

sincerity in what the Commonwealth of Australia proposes as otherwise it would address all watercrises issues and not just where it can lay its hands on getting more power.

The simple solution is, that the Commonwealth of Australia finally legislate as to the allocation of water permissible per State to be taken from rivers that are subject to navigation.The Commonwealth of Australia provide the 10 billion dollar funds (as it comes in any event fromConsolidated Revenue) to the various States, not as some blackmail to hand over legislative powers,as it would in any event be unconstitutional, trust me, but because it should know that it is dealingwith public money and as such ought to act responsibly to ensure water supplies remainsappropriately.The States in their turn will create their own independent water management Authority, that ensure

that water is allocated only on a “need basis” and ban any selling of water rights.Each State sets up a system where water is allocated upon a need basis pending what is grown onthe land and the state can ban high water volume users from using river water and/or stream waterthat runs into rivers. As such, if some company wants to purchase land near a river, as a way to getaccess to water, and then to grow something or produce something that uses a lot of water then theState simply can refuse to allow for this, and/or stipulate that the land in question is limited tocertain water usage and prohibit the usage of land for growing or producing items that woulddemand high water usage. Sure the odd business may be unhappy about this but the interest of thegeneral public should be priority and not that some smart aleck can circumvent water restrictions.

While the High Court of Australia in the Tasmania Dam case relied upon “external affairs” powers

the truth is that the Framers of the Constitution made clear that “conservation of the environment”was and remained to be State rights. And as such I view Malcolm Turnbull did better to read theHansard records to get to understand what the Framers of the Constitution intended so he mayperhaps get a grip onto what power he can or cannot exercise.

It cannot be denied that he had my correspondence since March 2005 and yet still does not appearto have a clue as to what is constitutionally permissible and what not. Not particularly a kind of recommendation of competence, for so far I can see it.

* What do you thing about Kevin Rudd giving broad bipartisan support?






**#** I would say he also need to read the Hansard records to get some proper understanding whatis constitutionally appropriate. It appears to me he neither understands constitutional limitations.It does however yet again underlines the need for an OFFICE OF THE GUARDIAN!

QUOTE 7.30 REPORTJOHN HOWARD: I will therefore be writing to all relevant State and Territory leadersrequesting that they refer to the Commonwealth their powers of water management over theMurray Darling basin.

END QUOTE 7.30 REPORT

Premiers have to understand that while they can manage a State they cannot give away legislativepowers! As was made clear during the Constitution Convention Debates, while Section51(xxxvii) provided for certain reference of powers, the Delegates at the Convention did raise theissue that a State may nevertheless lack the constitutional powers to give away legislative powerswithout referendum, this as the people had to vote in the first place for the transfer of legislativepowers from the Colonies (now States) to the Commonwealth of Australia so it could be created!Obviously John Howard does neither seem to understand this.

QUOTE 7.30 REPORTSTEVE BRACKS, VICTORIAN PREMIER: We will cooperate with the Prime Minister. I'llask the Prime Minister certainly to make sure he gets the Premiers and Territory leaderstogether to talk about his plans and to make sure that we have a cooperative system in thefuture.

MORRIS IEMMA, NSW PREMIER: We are 100% in favour of a national approach and wewill certainly work to cooperate with the Commonwealth on water. But don't just restrict it togovernments, call together the nation's leading water experts as part of a national effort.

PETER BEATTIE, QLD PREMIER: Let's not have a war about water. Let's cooperate on

water in the national interest.END QUOTE 7.30 REPORT

If just they had bothered to research what the Framers of the Constitution intended!

QUOTE 7.30 REPORTPROF JOHN WILLIAMS, LAW SCHOOL, ADELAIDE UNIVERSITY: There's two waysthe Commonwealth can do this. They can ask for the cooperation of the States and they cando that by buying them, cajoling them and using the States to refer the power. Barring that,we're into the High Court and the approach there will be, the Commonwealth will throw everypower it has to take control of the rivers.

END QUOTE 7.30 REPORT

Well considering what I have stated before I think that this Professor John Williams also betterdoes some research of what the intentions were of the Framers of the Constitution.

QUOTE 16-3-2005 correspondence to Malcolm TurnbullHansard 1-3-1898;

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 forthe time being in each state might say-"We are favorable to this law, because 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 couldcomplain. If this is to be allowed, why should we have these elaborate provisions for the



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.


Again;

should we have these elaborate provisions for the amendment of the Constitution? Whyshould we not say that the Constitution may be amended in any way that the Ministries

of the several colonies 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?

This underlines that it is not up to the States to handover legislative powers of the State. Why onearth would Western Australia have to fund towards the 10 billion dollar deal with taxes from its

citizens while left high and dry with its own expensive water problems? Why on earth wouldTasmania want to fund such a project?

The Constitution was put in place as to guarantee the rights of the general public and that is what itis about. Premiers who think they have the powers to vandalise State sovereignty have somethingcoming to them.

When SA had lost the toxic wast case, I for one wrote to Premier Rann about it being beyondconstitutional powers for the Commonwealth of Australia and as such urged to appeal. This appealsucceeded.

As my 16-3-2005 correspondence to Malcolm Turnbull also indicated there were problems about“Australian citizenship”, detention/deportation, etc, the Commonwealth of Australia simplyvandalising constitutional provisions in the process.

* OK, I have been sitting back listening quietly to your long set out and it seems to me that you donot accept for a moment that the States can refer its powers as to Murray Darling Basin to theCommonwealth of Australia and does not need to do so, am I correct?

**#** Yes.

* Hello, excuse me, you gave me a one syllable answer. Are you getting sick or so?

**#** No.

* Here you go again. Run out of air?

**#** No.

* OK, you say the States should stop “water rights trading” as some commodity and narrow waterallocation for those who don’t need it, is that correct?

**#** Yes.






* Anything else?

**#** Unless all Governments are going to create an OFFICE OF THE GUARDIAN we will beforever have this kind of constitutional turmoil, where there is a lot of talk but little sense becausenone really knows what is constitutionally appropriate! And, if they continue their merry way, theymay just contribute to the federation being turned into some confederation and the States beingabolished!What we have is that now a lot of legislation is enacted and soon or later the states and theCommonwealth of Australia may discover it was so often unconstitutional. Then, so to say, hellbreak loose.It is absurd to just blame the Commonwealth of Australia or the States as they are all contributing.It is also nonsense for any premier to be willing to hand State legislative powers as some purportedmoney saving exercise, as not only is this plain stupid but undermines the very constitutionalframework that has been put in place for the Federation.I also maintain the abolition of the Queensland Upper House more then likely is and remainsunconstitutional, but that is another issue to be canvassed in future books.

* What have you got to say about the following:

**#**http://orange.yourguide.com.au/detail.asp?class=national%20news&subclass=general&story_id=551188&category=General

"I am prepared to listen to what the Commonwealth is proposing, Mr Iemma told reporters.

"I'm not going to let the issues of power stand in the way of a national effort and morecooperation."

And

Mr Turnbull has ordered work on the Kangaloon aquifer to stop because of fears the LathamSnipe bird could be harmed.

As for;"I'm not going to let the issues of power stand in the way of a national effort and morecooperation."

To me this is one of the most idiotic statements I ever came across. State sovereign powers cannotbe ignored. And a Premier should be very much stand up to protect State sovereign rights. If hewants to change something then it is not his call to do so but he has to go back to the electors and

seek their approval by way of referendum.

Well, as I indicated already in previous published books, the Framers of the Constitution leftconservation with the States, and without a referendum it remains to be so also.

* But, didn’t the High Court of Australia in the Franklin Dam case rule otherwise?

**#** Check the judgment versus what the Framers of the Constitution stated and you may justdiscover the High Court of Australia haded down an ill conceived judgment with about a totaldisregard to what was constitutionally permissible.






It is nonsense that some bird could interfere with State sovereign rights and in particular whereMalcolm Turnbull himself indicated he is not a stranger to the Constitution then I would assume heshould know better what the Constitution stands for.Sure, we as a general community may be concerned about wildlife, but it is another matter for theCommonwealth of Australia to somehow create its own legislative powers and then use it tounconstitutionally interfere with State legislative powers and other State rights.

* What about Bracks comments?

**#** I am very concerned about them;

"And to protect the interests of those states and territories in that transfer," he said.

Again;

QUOTE 16-3-2005 correspondence to Malcolm TurnbullHansard 1-3-1898;

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 forthe time being in each state might say-"We are favorable to this law, because we shall get£100,000 a year, or so much a year, from the Federal Government as a subsidy for ourschools," and thus they might wink at a violation of the Constitution, while no one couldcomplain. If this is to be allowed, why should we have these elaborate provisions for the



Why have this provision for a referendum? Why consult the people at all? Why notleave 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.


It is not for Ministers to take it upon themselves to refer legislative powers, as it remainsunconstitutional without approval by referendum, as I have explained extensively already inprevious published books.

He doesn’t seem to comprehend that John Howard can promises whatever he does, and even if hewere genuine whom ever takes next power can simply ignore it all as once the Commonwealth of Australia in a constitutional manner obtain legislative powers then it can do as it likes.

Say the Commonwealth of Australia put a rain tax on property per square meter. It could put a raintax on whatever. The states simply would be powerless to do anything about it. It has given awaycontrol forever. This utter silly if not stupid idea that the States can rescind reference of power isutter and sheer nonsense.http://orange.yourguide.com.au/detail.asp?class=national%20news&subclass=general&story_id=551516&category=General

Friday, 26 January 2007Bracks wants meeting on PM's water plan

Victorian Premier Steve Bracks wants an urgent meeting between the prime minister and thestates and territory affected by the Commonwealth's plan to take over the Murray-DarlingBasin system.





Mr Bracks said now he has had time to digest John Howard's announcement made onThursday in Canberra, he wanted to ensure that the states were not disadvantaged.

"I will be writing to him saying that we should have a meeting as soon as possible of theVictorian, NSW, SA, Queensland and ACT governments to ensure that we do this properlyand effectively," Mr Bracks told reporters in Melbourne.

"And to protect the interests of those states and territories in that transfer," he said.

The 10-year plan would see up to $3 billion spent on buying out irrigation licences to addressover-allocation of water supplies and almost $6 billion on a upgrade of irrigationinfrastructure.

The four Murray-Darling states - NSW, Victoria, South Australia and Queensland - haveoffered cautious approval.

But Mr Bracks already has placed conditions on acceptance.

He reiterated on Friday that he did not want to see the Murray-Darling Basin system placed inprivate hands in the future.

"That is one of the conditions that we will be putting on any water referral of powers to thecommonwealth for the Murray-Darling Basin system, which includes in our case the MurrayRiver, the Goulburn River and the tributaries which lead up to that," Mr Bracks said.

He also wanted an assurance from the prime minister that Victorian irrigators would not bedisadvantaged.

"They're easy (conditions) to meet and I'm sure that we can come to an arrangement," he said.

Mr Howard said there were no plans for privatisation and that irrigators would not bedisadvantaged.

He also said Australians would eventually accept recycled drinking water, as long as it wasoverseen by a strong public health regime.

Mr Bracks said there was no need for Victorians living in urban areas to drink recycled water.

"We have a policy in our state for urban water systems ... that recycled water is suitable as A-grade treatment water for industry, and we can free up so much water as a result of that fordrinking water," Mr Bracks said.

"So we don't need to go down that path and I think that's the preferred way that's out view."

Brought to you by AAP

* You known, you have obviously written extensively to Malcolm Turnbull in your 16-3-2005correspondence, in view of all your diverse quotations, but did it really sink in by him I wonder?

**#** The same could be asked about Steve Bracks, Peter Beatty, John Howard, etc, and that iswhy yet again I have to stress we need an OFFICE OF THE GUARDIAN, as to stop this rot tocontinue. You know the saying, you can lead a horse to water but you cannot force to drink it!

chapter 696-water & constitution

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