http://www.legislation.gov.uk/ukpga/1953/9/pdfs/ukpga_19530009_en.pdf#page=2&zoom=210,0,443
Sunday, December 29, 2013
THE ROYAL AND PARLIAMENTARY TITLES ACT 1927 (17 & 18 GEO. 5 C. 4)
This will be of interest to those of you that are researching the whole 'Queen Of Australia' pathway. One thing to remember is that if you claiming to live under "English Common Law", as many Australian Constitutionalists do, then you are liable to all the actions within that jurisdiction.
That means actions of the English Parliament.
Why?
Because in English Common Law, the Parliament is the Sovereign, NOT, the reigning Monarch. Has been since they since they beheaded Charles I in 1649 and they started experimenting with models of control starting with Oliver Cromwell and Republicanism, going back to the old "blue blood" lines with Charles & James II, then finally, by offering William & Mary Of Orange what looks to be an employment contract (Bill Of Rights) to be King of England in 1689 and cementing their power through the Act of Settlement 1701 through Queen Anne.
This is relevant because the Sovereign can do as s/he pleases.
This is the first step Parliamentary control of the Monarch in other jurisdictions after the grant of freedom to the Irish in 1922, and the Imperial Conference in 1926, whereby the English & Commonwealth/Dominion governments decided that the description of George V was no longer accurate and needed to be changed.
The result is this Act.
OUTSIDE THE BOX WITH KATE OF GAIA – SANTOS BONACCI - JOE DOLEZAL SENIOR, THE THIEF [12/26/2013]
There has been a controversy regarding Jordan Maxwell that has been bubbling away, and Santos Bonacci, defends Jordan on this broadcast that has been censored from You Tube once already.
i'm not a fan of censorship, and, although, i haven't been a huge Maxwell admirer for a few years, i feel it is a good idea to keep this info online and available.
There is more to this show than the Maxwell claims, and Kate of Gaia's perspective is always worth consideration especially as she is a walker.
Thursday, December 26, 2013
LOCAL COURTS REVIVING 'DEBTORS' PRISON' FOR OVERDUE FINES, FEES
By Kelley Beaucar Vlahos FoxNews.com
In this May 24, 2011 file photo, inmates make phone calls from their cell at a county jail in Santa Ana, Calif.Reuters
Critics are calling the practice the new "debtors' prison" -- referring to the jails that flourished in the U.S. and Western Europe over 150 years ago. Before the time of bankruptcy laws and social safety nets, poor folks and ruined business owners were locked up until their debts were paid off.
Reforms eventually outlawed the practice. But groups like the Brennan Center for Justice and the American Civil Liberties Union say it's been reborn in local courts which may not be aware it's against the law to send indigent people to jail over unpaid fines and fees -- or they just haven't been called on it until now.
Advocates are trying to convince courts that aside from the legal questions surrounding the practice, it is disproportionately jailing poor people and doesn't even boost government revenues -- in fact, governments lose money in the process.
"It's a waste of taxpayer resources, and it undermines the integrity of the justice system," Carl Takei, staff attorney for the ACLU's National Prison Project, told FoxNews.com.
"The problem is it's not actually much of a money-making proposition ... to throw people in jail for fines and fees when they can't afford it. If counties weren't spending the money jailing people for not paying debts, they could be spending the money in other ways."
The Brennan Center for Justice at New York University's School of Law released a "Tool Kit for Action" in 2012 that broke down the cost to municipalities to jail debtors in comparison with the amount of old debt it was collecting. It doesn't look like a bargain. For example, according to the report, Mecklenburg County, N.C., collected $33,476 in debts in 2009, but spent $40,000 jailing 246 debtors -- a loss of $6,524.
Fines are the court-imposed payments linked to a conviction -- whether it be for a minor traffic violation like driving without a license or a small drug offense, all the way up to felony. Fees are all those extras tacked on by the court to fund administrative services. These vary from jurisdiction to jurisdiction, with some courts imposing more than others.
As states and counties grapple with shrinking budgets and yearly shortfalls, new fees are often imposed to make up the difference, though they can be quite overwhelming to individuals passing through the system -- 80 percent of whom qualify as indigent (impoverished and unable to pay), according to the Brennan Center. Florida, for example, has added 20 new fees since 1996, according to the center. North Carolina imposes late fees on debt not paid and surcharges on payment plans.
More and more, courts are dragging people in for fines and fees that have ballooned due to interest imposed on the initial sums. Some owe money to the public defender's office for the representation they received during their time in court. Others incur hundreds of dollars in fees while they're incarcerated -- for everything from toilet paper to the beds inmates sleep on.
The tab for the average offender could be as low as $250 or as high as $4,000. Both the ACLU and Brennan have been targeting big states with multiple jurisdictions they say are flouting U.S. Supreme Court rulings in 1970, 1971 and 1983. Those rulings essentially say courts cannot extend or impose a jail sentence for unpaid fines and fees if individuals do not have the ability to pay.
At the very least, according to the high court, the courts must inquire and assess whether a person is indigent and might benefit from an alternative method of payment, like community service, before sentencing.
"Even though a lot of jurisdictions do have statutes on the books that allow judges to waive fines and fees, it doesn't always happen," explained Lauren Brooke-Eisen, counsel for the Brennan Center's Justice Program.
Much of the time, probation or the conviction itself will hinder individuals from finding employment (Brennan estimates that some 60 percent are still unemployed a year after leaving jail). But another incarceration over debt could either ruin the job they managed to get or make it even harder to find one.
Many jurisdictions have taken to hiring private collection/probation companies to go after debtors, giving them the authority to revoke probation and incarcerate if they can't pay. Research into the practice has found that private companies impose their own additional surcharges. Some 15 private companies have emerged to run these services in the South, including the popular Judicial Correction Services (JCS).
In 2012, Circuit Judge Hub Harrington at Harpersville Municipal Court in Alabama shut down what he called the "debtors' prison" process there, echoing complaints that private companies are only in it for the money. He cited JCS in part for sending indigent people to jail. Calling it a "judicially sanctioned extortion racket," Harrington said many defendants were locked up on bogus failure-to-appear warrants, and slapped with more fines and fees as a result.
Repeated calls to JCS in Alabama and Georgia were not returned.
Defenders of the collection programs say the money is owed to the state and it's the government's right to go after it. "When, and only when, an individual is convicted of a crime, there are required fees and court costs," Pamela Dembe, president of the First Judicial District of Pennsylvania, which oversees Philadelphia, said in a statement to reporters in May. An earlier review by the courts found an estimated 400,000 residents owed the city money. "If the defendant doesn't pay, law-abiding taxpayers must pay these costs."
Meanwhile, there's evidence that groups like the ACLU are prompting reforms.
For example, the ACLU released "The Outskirts of Hope," on court practices in Ohio. The report told the story of one couple, John Bundren and Samantha Reed, who both had racked up court fines. Bundren's, which traced back to underage drinking and public intoxication convictions from his teenage years, totaled $3,000. They paid her fines before his, and Bundren ended up spending 41 days in jail because he couldn't pay his own.
The ACLU found that seven out of 11 counties they studied were operating de facto debtors' prisons, despite clear "constitutional and legislative prohibitions." Some were worse than others. In the second half of 2012 in Huron County, 20 percent of arrests were for failure to pay fines. The Sandusky Municipal Court in Erie County jailed 75 people in a little more than a month during the summer of 2012. The ACLU says it costs upwards of $400 in Ohio to execute a warrant and $65 a night to jail people.
As a result of the study, the Ohio State Supreme Court has begun educating judges and personnel on the statutes and constitutional restrictions of collecting fines and fees, Bret Crow, spokesman for the state court, told FoxNews.com. It is also developing a "bench card," intended as a reference guide for county judges.
More recently in Colorado, the state ACLU completed a report on "pay or serve" programs throughout the state. In the case of Wheatridge and Northglenn counties, the penalty was one day in the clink for every $50 owed; in Westminster, every offender got an automatic 10 days in jail.
The report also found that one jail racked up more than $70,000 in costs for incarcerating 154 people over a five-month period in 2012 -- and only managed to collect $40,000 in overdue fines and fees in that time.
Mark Silverstein, a staff attorney at the Colorado ACLU, claimed judges in these courts never assess the defendants' ability to pay before sentencing them to jail, which would be unconstitutional.
John Stipech, Municipal Court judge in Westminster, Colo., told FoxNews.com he agreed with the tenets of the ACLU investigation, but added that the practice of the automatic 10-day jail sentence was already scrapped by Westminster in December 2012. "It was because we had jail space problems and beds needed to be limited to actual criminals," he said.
He complained that local coverage of the ACLU report "makes it sound like we're putting everyone in jail." He said he asks everyone who comes before him if they have the ability to pay. He acknowledged, however, that his court is working with the ACLU and will be instituting formal "show cause" hearings to determine indigence.
"Maybe the ACLU did some good, they brought it to my attention. Maybe they just should have done it in a better way," Stipech said.
Brooke-Eisen said the reform movement is proceeding, albeit slowly in tough fiscal times.
"A lot of the jurisdictions are still using fines and fees and passing legislation to add more fees and fines," she said.
http://www.foxnews.com/politics/2013/12/26/local-courts-reviving-debtors-prison-for-overdue-fines-fees/
Wednesday, December 25, 2013
BRISBANE G20 PROTESTERS CAN WEAR BLACK CLOTHES DESPITE CALLS FOR BAN
December 26, 2013 Thomas Chamberlain Courier Mail
PROTESTERS will be free to wear black clothes –Someone in the media wants the government to determine what people can and can't wear– at Brisbane's G20 despite calls –plural only one call is included in this article and it is a very biased one at that– for them to be banned to avoid repeats of violent clashes with masked protesters at previous summits. –violence can be avoided by removing the police force who are the instigators of violence.
At Toronto's G20 Summit protesters using "black bloc" tactics
trashed parts of the city, smashed shopfronts and set fire to police
cars.
The tactic involved the protesters wearing black clothing and masks to conceal their identity.
–In Melbourne, "black bloc" were described in the local corporate media as a violent group from Europe who wore all white. Should we ban people from wearing any tones at all?
Macquarie University adjunct professor Clive Williams –formerly an officer of the Australian Intelligence Corps (Aust Int) & a civillian working on "transnational issues" with Defence Intelligence, so is as unbiased as Thomas Chamberlain– said police should consider banning black clothing at the last-minute before the event.
"I would say that anyone who is wearing all black will be regarded as being a member of an anarchist group," he told The Courier-Mail.
Such as Gothics and Emo's for example. This is from the if he is on a motorbike he is in a bike gang, which makes Casey Stoner a .....
"You'd have to say that wearing all black clothing has been an
indicator of violent protests in the past and therefore it's identified
with violent groups like black bloc.
"Therefore anyone who is wearing all black clothing on the day will be regarded as being potentially violent demonstrators and is likely to be detained for the duration of the activity," he said.
G20 Assistant Commissioner –made up job title, she looks like a copper in disguise– Katarina Carroll said black clothing was not banned in legislation and police respected the right of citizens to protest lawfully. Do you think that Katarina kept a straight face as she said this?
Banned items include weapons, handcuffs, chains, glass bottles or jars, eggs, placards, animal manure, reptiles and remote-controlled devices such as toy cars.
But she said police would not tolerate unlawful behaviour that threatened safety and security –does this mean that police will be arresting violent police? at the events in Brisbane or Cairns.
"The G20 (Safety and Security) Act 2013 does not include black clothing on the prohibited items list," she said in a statement.
"There are a number of protest tactics that issue motivated groups use.
"People who breach the G20 (Safety and Security) Act 2013, and act in a violent or disruptive manner will be dealt with in an affirmative manner," she said.
There is Katarina inciting and flagging the Police's intention to use violence.
When asked specifically about whether police would use the Vicious Lawless Association Disestablishment anti-bikie laws to target protesters she said the G20 (Safety and Security) Act 2013 would give police all the additional powers required "alongside the existing legislation".
VLAD WILL BE USED AGAINST PROTESTERS. IT ALREADY HAS BEEN USED AGAINST AN OCCUPY SYDNEY ACTIVIST.
"Any charges preferred for offences committed during G20 will be based on the individual circumstances of the alleged offence," the statement said.
http://www.news.com.au/national/queensland/brisbane-g20-protesters-can-wear-black-clothes-despite-calls-for-ban/story-fnii5v6w-1226789654547
Australia has taken over as chair of the G20 and will host the global summit in Brisbane next November.
PROTESTERS will be free to wear black clothes –Someone in the media wants the government to determine what people can and can't wear– at Brisbane's G20 despite calls –plural only one call is included in this article and it is a very biased one at that– for them to be banned to avoid repeats of violent clashes with masked protesters at previous summits. –violence can be avoided by removing the police force who are the instigators of violence.
The tactic involved the protesters wearing black clothing and masks to conceal their identity.
–In Melbourne, "black bloc" were described in the local corporate media as a violent group from Europe who wore all white. Should we ban people from wearing any tones at all?
Macquarie University adjunct professor Clive Williams –formerly an officer of the Australian Intelligence Corps (Aust Int) & a civillian working on "transnational issues" with Defence Intelligence, so is as unbiased as Thomas Chamberlain– said police should consider banning black clothing at the last-minute before the event.
"I would say that anyone who is wearing all black will be regarded as being a member of an anarchist group," he told The Courier-Mail.
Such as Gothics and Emo's for example. This is from the if he is on a motorbike he is in a bike gang, which makes Casey Stoner a .....
Protesters smash police vehicles in Toronto's downtown during the G20 in 2010.
"Therefore anyone who is wearing all black clothing on the day will be regarded as being potentially violent demonstrators and is likely to be detained for the duration of the activity," he said.
G20 Assistant Commissioner –made up job title, she looks like a copper in disguise– Katarina Carroll said black clothing was not banned in legislation and police respected the right of citizens to protest lawfully. Do you think that Katarina kept a straight face as she said this?
Banned items include weapons, handcuffs, chains, glass bottles or jars, eggs, placards, animal manure, reptiles and remote-controlled devices such as toy cars.
But she said police would not tolerate unlawful behaviour that threatened safety and security –does this mean that police will be arresting violent police? at the events in Brisbane or Cairns.
"The G20 (Safety and Security) Act 2013 does not include black clothing on the prohibited items list," she said in a statement.
A violent –a journalistic programming technique is to apply your own description of a fact irrespective of it's appropriateness– anti-G20 protester, using Black Bloc tactics, throws a chair through a store window in Toronto in 2010.
"People who breach the G20 (Safety and Security) Act 2013, and act in a violent or disruptive manner will be dealt with in an affirmative manner," she said.
There is Katarina inciting and flagging the Police's intention to use violence.
When asked specifically about whether police would use the Vicious Lawless Association Disestablishment anti-bikie laws to target protesters she said the G20 (Safety and Security) Act 2013 would give police all the additional powers required "alongside the existing legislation".
VLAD WILL BE USED AGAINST PROTESTERS. IT ALREADY HAS BEEN USED AGAINST AN OCCUPY SYDNEY ACTIVIST.
"Any charges preferred for offences committed during G20 will be based on the individual circumstances of the alleged offence," the statement said.
http://www.news.com.au/national/queensland/brisbane-g20-protesters-can-wear-black-clothes-despite-calls-for-ban/story-fnii5v6w-1226789654547
UNITED STATES DISTRICT COURT, DISTRICT OF COLUMBIA. ALBERTO O. LOZADA COLON, PLAINTIFF, V. U.S. DEPARTMENT OF STATE, ET AL., DEFENDANTS
Civil Action No. 97-1831.April 23, 1998
HEADNOTE: United States citizen born in Puerto Rico, who sought to renounce his citizenship and reside in Puerto Rico as a national, filed mandamus petition challenging decision of United States Secretary of State denying him certificate of loss of nationality despite his oath of renunciation. State Department filed motion to dismiss. The District Court, Sporkin, J., held that: (1) Secretary’s decision constituted final, appealable administrative decision; (2) Secretary had discretion under statute to deny issuance of certificate; and (3) citizen failed to establish statutory requirement that he intended to relinquish citizenship.
Motion granted.
[*43] COUNSEL: Manuel Rivera, Jr., Arlington, VA, for Plaintiff.
Daria Jean Zane, U.S. Attorney’s Office, Washington, DC, Philip Dean Bartz, U.S. Dept. of Justice, Civil Div., Washington, DC, for Defendants.
[*44] MEMORANDUM OPINION AND ORDER
SPORKIN, District Judge
This matter comes before the Court on Defendants’s Motion to Dismiss. In August of 1997, Plaintiff filed a Petition for a Writ of Mandamus to compel a decision by the Department of State on his application for a Certificate of Loss of Nationality (“CLN”). Defendants argue that because the State Department has finally issued its decision denying Plaintiff the certificate he seeks, Plaintiff’s request is moot. Moreover, Defendants allege that Plaintiff’s contention now that the Secretary of State’s decision was wrong cannot properly be reviewed in a petition for a writ of mandamus.
Plaintiff, a United States Citizen born in Puerto Rico, seeks to renounce his United States citizenship and yet still reside and remain in Puerto Rico as a Puerto Rican national despite the fact that Puerto Rico is a territory of the United States. To that end, on September 23, 1996, Plaintiff appeared before a United States consular officer in the Dominican Republic and executed an oath of renunciation of nationality, as provided for in § 349(a)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1481. The Vice-consul certified this act to the United States Secretary of State for approval or disapproval. If approved, a Certificate of Loss of Nationality would issue to the Plaintiff, as prescribed in § 358 of the Immigration and Nationality Act, 8 U.S.C. § 1501.
Nearly a year after Plaintiff had taken his oath of renunciation, the Secretary of State still had not returned a decision on the validity of his renunciation. Thus in August of 1997, Plaintiff filed a Petition for a Writ of Mandamus asking this Court to compel the State Department to make a decision as to Plaintiff’s renunciation of citizenship. On August 26, 1997, this Court issued a show cause order directing the Department to state why the Writ should not issue within 60 days of the service of that order. The Department responded with a request to extend the time within which to respond given that it anticipated a decision from the Secretary of State on Plaintiff’s certification shortly. On January 27, 1998, the Secretary of State disapproved Plaintiff’s renunciation and declined to issue a Certificate of Loss of Nationality. Plaintiff was immediately notified of this decision. Thus, the Department contends that the case has become moot; there no longer remains any action to be taken by the State Department as requested by Plaintiff in his Petition before this Court.
Despite the fact that the State Department has issued its decision, Plaintiff contends that there still remains a valid claim for a Writ of Mandamus. While Plaintiff’s Petition for the most part requests only a final decision from the Secretary of State, Plaintiff also seeks in his prayer for relief that this Court not only order the Secretary to render a decision, but render a positive decision in favor of Plaintiff’s request for a certificate of loss of nationality. Given that the Department’s decision was not in favor of Plaintiff’s request, Plaintiff now contends that the decision was clearly in error. In support of his position, Plaintiff advances four alternative arguments: 1) since the denial of Plaintiff’s certificate was not a final agency decision and thus not subject to judicial review, he argues that a writ of mandamus is the only adequate remedy available to him; 2) he argues that the issuance of a certificate is not a discretionary power of the Secretary of State; 3) he questions whether the State Department has the constitutional authority even to adjudicate such claims of renunciation; and 4) even if the Congress has legitimately conferred on the State Department the power to adjudicate, he argues that he has complied with each and every requirement of the statute.
Despite the Secretary’s decision, Plaintiff contends that mandamus relief remains available in this case because the decision to deny certification is not legally cognizable as a final administrative determination under 8 U.S.C. § 1501. Section 1501 provides in relevant part, “Approval by the Secretary of State of a certificate under this section shall constitute a final administrative determination of loss of United States nationality under this chapter subject to such procedures for administrative appeal as the Secretary may prescribe by regulation, and also shall constitute a denial of a right or privilege [*45] of United States nationality for purposes of section 1503 of this title.” Id. Plaintiff argues that because the last sentence of this section states only that an approval of a certificate is a final administrative determination, the denial of one clearly is not. Accordingly, Plaintiff argues that without a writ of mandamus, there is no means by which he can appeal the Secretary’s adverse decision.
Plaintiff reads the words of the statute out of context. The final sentence of the section refers only to approval of a certificate because its purpose is to delineate when the statute of limitations begins to run for purposes of an appeal to the Board of Appellate Review under 22 C.F.R. § 7.5 or an action under § 360 of the Immigration and Nationality Act, 8 U.S.C. § 1503. In both of these situations, a denial of a certificate is irrelevant because when one is denied, the individual retains citizenship and thus is not subject to a decision under either 22 C.F.R. § 7.5.(b)(1) (review of loss of nationality by the Board) or 8 U.S.C. § 1503 (review of loss of a right or privilege attendant to citizenship because of the determination that the individual is no longer a national). Accordingly, the absence of language pertaining to the denial of a certificate rather than approval of one in the last sentence of § 1501 cannot be construed to mean what Plaintiff argues: that while the approval of certification is an appealable final agency determination, the disapproval of certification is not. Thus, Plaintiff is mistaken; a writ of mandamus is not the only form of remedy available to him in this instance.
In the alternative, Plaintiff argues that the Secretary had no discretion to deny the issuance of a certificate of loss of nationality. He interprets the same language of § 1501 as discussed above to mean that the Secretary has only the authority to approve certification, but not deny it. However, § 1501 makes clear that the issuance of a certificate depends upon the Secretary’s approval of the consular officer’s report. It states, “Whenever a diplomatic or consular officer of the United States has reason to believe that a person while in a foreign state has lost his United States nationality … he shall certify the facts upon which such belief is based to the Department of State…. If the report of … the officer is approved by the Secretary of States, a copy of the certificate shall be [issued].” 8 U.S.C. § 1501 (emphasis added). The approval, or disapproval, of the issuance of certification is committed by statute to the discretion of the Secretary and thus not subject to this Court’s mandamus jurisdiction. See Murphy v. FDI, 61 F.3d 34, 40-41 (D.C.Cir.1995).
Plaintiff also advances a quasi-constitutional argument that the Secretary must approve his certificate because of his inherent, natural right to expatriate. Yet even if one were to concede Plaintiff’s argument that an individual has a fundamental right to expatriate, the Secretary of State still would have the discretion to determine whether an individual has adequately renounced affiliation with the United States so as to trigger that right. In this case, the Secretary determined that Plaintiff had not met the relevant criteria. In § 349 of the Immigration and Nationality Act, 8 U.S.C. § 1481, Congress set forth the circumstances under which a loss of nationality certification would issue. Section 349 makes clear that expatriation depends not only on the performance of an expatriating act, but also upon a finding that the individual performed such act “voluntarily” and “with the intention of relinquishing United States nationality.” Id.; see also Afroyim v. Rusk, 387 U.S. 253, 87 S.Ct. 1660, 18 L.Ed.2d 757 (1967); Vance v. Terrazas, 444 U.S. 252, 100 S.Ct. 540, 62 L.Ed.2d 461 (1980).
Plaintiff’s arguments boil down to a disagreement with the Secretary of State as to whether or not he meets the relevant criterion of “intent” needed to expatriate. Plaintiff argues that he meets all of the elements: He left the United States, went to the consular’s office in the Dominican Republic, and took a formal oath of renunciation. In rejecting Plaintiff’s renunciation, the Department notes that Plaintiff demonstrated no intention of renouncing all ties to the United States. While Plaintiff claims to reject his United States citizenship, he nevertheless wants to remain a resident of Puerto Rico. The Immigration and Nationality Act makes it unmistakably clear that Puerto Rico [*46] is a part of the United States for such purposes. (See 8 U.S.C. § 1101(a)(38), providing that the term “United States” for the purposes of the statute refers not only to the 50 states of the United States, but also Puerto Rico, Guam, and the Virgin Islands.) Indeed, after attempting to renounce in the Dominican Republic, Plaintiff returned to Puerto Rico without making any effort to be documented as an alien under the Immigration and Nationality Act. In other words, while claiming to renounce all rights and privileges of United States citizenship, Plaintiff wants to continue to exercise one of the fundamental rights of citizenship, namely the right to travel freely throughout the world and when he wants to, to return and reside in the United States.
Plaintiff’s response to the Secretary’s position is to claim a fundamental distinction between United States and Puerto Rican citizenship. Unlike the states, which cannot exist alone and apart from the United States, Plaintiff argues that Puerto Rico is a distinct and separate entity with a independent national history and identity. Thus, he objects to the Secretary of State’s position that renunciation of U.S. citizenship must entail renunciation of Puerto Rican citizenship as well.
In essence, Plaintiff’s complaint with the Secretary of State is over the much debated political question as to the status of Puerto Rico and its nationals in relation to the United States. While Plaintiff may well have strong political views with regard to Puerto Rican independence and the need for a citizenship separate and apart from the United States, this is not an issue for this Court to decide. Plaintiff must seek another, more appropriate forum to express his political views.
Accordingly, it is hereby ORDERED that Defendants’s Motion to Dismiss is GRANTED.
http://www.uniset.ca/naty/maternity/2FSupp2d43.htm
OPERATION BREAK UP CAMPAIGN BY POLICE NABS DRIVERS FOR 15,000 OFFENCES
December 24, 2013
The campaign was accompanied by an impressive range of advertising warning drivers police were cracking down on dubious drivers.
Journalistic programming phrases that serves as a propaganda, complete with barracking and anticipation of police advertising revenue. Have you ever wondered how much money the media outlets that support police revenue raising make from those same for profit policy enforcers.
Despite the warning police handed out tickets to more than 135 people a day for talking on their phones.
Police do not appear willing to accept community will, they want to force the community to accept the government's wil.
Almost 40 drivers a day were caught for drinking offences and nine a day tested positive for drugs.
More than 500 tickets were handed out every day of the campaign for speeding.
Road Policing Command Assistant Commissioner Robert Hill said the figures were particularly disappointing as motorists were given plenty of warning police would be strictly enforcing the penalties for mobile phone use.
"At the start of the Summer Stay campaign Victoria Police warned motorists we would be focused on driver distraction.
"We told the community we would be out there saturating the roads, targeting drivers using their mobile phones.
"Clearly the figures show motorists just aren't getting the message.
Clearly the figures show police/government just aren't getting the message.
"This month we've had 28 people killed on our roads, the worst month so far this year.
"That's 28 more families that will be missing someone this Christmas.
Using an emotional programming tool that works on people that empathise with others.
"We have to work together to get the road safety messages out there, using your mobile phone while driving is a deadly driver distraction.
BULLSHIT.
"Imagine trying to explain to your best friends mum why taking that call meant more to you then her daughter or son's life."
Could you imagine a cop telling people the truth that they are the pets of the farmers employed to force the free community to comply with the farmers will?
Me neither.
With Boxing Day being one of the worst days on Victorian roads, police are urging drivers who are travelling long distances to rest regularly.
http://www.news.com.au/national/victoria/operation-break-up-campaign-by-police-nabs-drivers-for-15000-offences/story-fnii5sms-1226789534614
POLICE have nabbed hundreds of dodgy drivers –journalistic programming phrase– committing –journalistic programming phrase that infers guilt when everyone is actually presumed innocent & therefore have committed nothing at all– more than
15,000 offences during the summer crackdown on Victorian roads.
Operation Break –government/police programming phrase using military operational propaganda– was launched in November in the bid to force –no free will choice exerted means slavery– drivers to be safe on our roads over summer or face a long stint off the
roads.The campaign was accompanied by an impressive range of advertising warning drivers police were cracking down on dubious drivers.
Journalistic programming phrases that serves as a propaganda, complete with barracking and anticipation of police advertising revenue. Have you ever wondered how much money the media outlets that support police revenue raising make from those same for profit policy enforcers.
Despite the warning police handed out tickets to more than 135 people a day for talking on their phones.
Police do not appear willing to accept community will, they want to force the community to accept the government's wil.
Almost 40 drivers a day were caught for drinking offences and nine a day tested positive for drugs.
More than 500 tickets were handed out every day of the campaign for speeding.
Road Policing Command Assistant Commissioner Robert Hill said the figures were particularly disappointing as motorists were given plenty of warning police would be strictly enforcing the penalties for mobile phone use.
"At the start of the Summer Stay campaign Victoria Police warned motorists we would be focused on driver distraction.
"We told the community we would be out there saturating the roads, targeting drivers using their mobile phones.
"Clearly the figures show motorists just aren't getting the message.
Clearly the figures show police/government just aren't getting the message.
"This month we've had 28 people killed on our roads, the worst month so far this year.
"That's 28 more families that will be missing someone this Christmas.
Using an emotional programming tool that works on people that empathise with others.
"We have to work together to get the road safety messages out there, using your mobile phone while driving is a deadly driver distraction.
BULLSHIT.
"Imagine trying to explain to your best friends mum why taking that call meant more to you then her daughter or son's life."
Could you imagine a cop telling people the truth that they are the pets of the farmers employed to force the free community to comply with the farmers will?
Me neither.
With Boxing Day being one of the worst days on Victorian roads, police are urging drivers who are travelling long distances to rest regularly.
http://www.news.com.au/national/victoria/operation-break-up-campaign-by-police-nabs-drivers-for-15000-offences/story-fnii5sms-1226789534614
8 USC § 1481 - LOSS OF NATIONALITY BY NATIVE-BORN OR NATURALIZED CITIZEN; VOLUNTARY ACTION; BURDEN OF PROOF; PRESUMPTIONS
(a)
A person who is a national of the United
States whether by birth or naturalization, shall lose his nationality by
voluntarily performing any of the following acts with the intention of
relinquishing United States nationality— note that the terminology is not citizen, but national.
 |
| From Blacks 1. Pay attention to the phrase "domicile determines his civil status." |
(1)
obtaining naturalization in a foreign
state upon his own application or upon an application filed by a duly
authorized agent, after having attained the age of eighteen years; or
(2)
taking an oath or making an affirmation
or other formal declaration of allegiance to a foreign state or a
political subdivision thereof, after having attained the age of eighteen
years; or
(4)
(A)
accepting, serving in, or
performing the duties of any office, post, or employment under the
government of a foreign state or a political subdivision thereof, after
attaining the age of eighteen years if he has or acquires the
nationality of such foreign state; or
(B)
accepting, serving in, or
performing the duties of any office, post, or employment under the
government of a foreign state or a political subdivision thereof, after
attaining the age of eighteen years for which office, post, or
employment an oath, affirmation, or declaration of allegiance is
required; or
(5)
making a formal renunciation of
nationality before a diplomatic or consular officer of the United States
in a foreign state, in such form as may be prescribed by the Secretary
of State; or
(6)
making in the United States a formal
written renunciation of nationality in such form as may be prescribed
by, and before such officer as may be designated by, the Attorney
General, whenever the United States shall be in a state of war and the
Attorney General shall approve such renunciation as not contrary to the
interests of national defense; or
(7)
committing any act of treason against,
or attempting by force to overthrow, or bearing arms against, the United
States, violating or conspiring to violate any of the provisions of
section
2383 of title
18, or willfully performing any act in violation of section
2385 of title
18, or violating section
2384 of title
18
by engaging in a conspiracy to overthrow, put down, or to destroy by
force the Government of the United States, or to levy war against them,
if and when he is convicted thereof by a court martial or by a court of
competent jurisdiction.
(b)
Whenever the loss of United States
nationality is put in issue in any action or proceeding commenced on or
after September 26, 1961 under, or by virtue of, the provisions of this
chapter or any other Act, the burden shall be upon the person or party
claiming that such loss occurred, to establish such claim by a
preponderance of the evidence. Any person who commits or performs, or
who has committed or performed, any act of expatriation under the
provisions of this chapter or any other Act shall be presumed to have
done so voluntarily, but such presumption may be rebutted upon a
showing, by a preponderance of the evidence, that the act or acts
committed or performed were not done voluntarily.
LII has no control over and does not endorse any external Internet site that contains links to or references LII.
RENUNCIATION OF U.S. CITIZENSHIP
A. THE IMMIGRATION & NATIONALITY ACT
Section 349(a)(5) of the Immigration and Nationality Act (INA) (8 U.S.C. 1481(a)(5)) is the section of law governing the right of a United States citizen to renounce his or her U.S. citizenship. That section of law provides for the loss of nationality by voluntarily
B. ELEMENTS OF RENUNCIATION
A person wishing to renounce his or her U.S. citizenship must voluntarily and with intent to relinquish U.S. citizenship:
C. REQUIREMENT - RENOUNCE ALL RIGHTS AND PRIVILEGES
A person seeking to renounce U.S. citizenship must renounce all the rights and privileges associated with such citizenships. In the case of Colon v. U.S. Department of State , 2 F.Supp.2d 43 (1998), the U.S. District Court for the District of Columbia rejected Colon’s petition for a writ of mandamus directing the Secretary of State to approve a Certificate of Loss of Nationality in the case because he wanted to retain the right to live in the United States while claiming he was not a U.S. citizen.
D. DUAL NATIONALITY / STATELESSNESS
Persons intending to renounce U.S. citizenship should be aware that, unless they already possess a foreign nationality, they may be rendered stateless and, thus, lack the protection of any government. They may also have difficulty traveling as they may not be entitled to a passport from any country. Even if not stateless, former U.S. citizens would still be required to obtain a visa to travel to the United States, or show that they are eligible for admission pursuant to the terms of the Visa Waiver Pilot Program (VWPP). Nonetheless, renunciation of U.S. citizenship may not prevent a foreign country from deporting that individual to the United States in some non-citizen status.
E. TAX & MILITARY OBLIGATIONS /NO ESCAPE FROM PROSECUTION
Persons who wish to renounce U.S. citizenship should be aware of the fact that renunciation of U.S. citizenship may have no affect whatsoever on his or her U.S. tax or military service obligations –which inevitably means that it may have effect– (contact the Internal Revenue Service or U.S. Selective Service for more information).
In addition, the act of renouncing U.S. citizenship does not allow persons to avoid possible prosecution for crimes which they may have committed in the United States, or escape the repayment of financial obligations previously incurred in the United States or incurred as United States citizens abroad.
F. RENUNCIATION FOR MINOR CHILDREN/INCOMPETENTS
Citizenship is a status that is personal to the U.S. citizen.
Therefore, parents may not renounce the citizenship of their minor children. Similarly, parents/legal guardians may not renounce the citizenship of individuals who are mentally incompetent.
Minors seeking to renounce their U.S. citizenship must demonstrate to a consular officer that they are acting voluntarily and that they fully understand the implications/consequences attendant to the renunciation of U.S. citizenship.
Do you find it odd that a mum or dad cannot make a decision for their own children & their family?
The government acting as parent would be fine in a communist country, but America isn't a communist country, is it?
The voluntary element that is necessary to conduct is actually present here.
G. IRREVOCABILITY OF RENUNCIATION
Finally, those contemplating a renunciation of U.S. citizenship should understand that the act is irrevocable,except as provided in section 351 of the INA (8 U.S.C. 1483), and cannot be canceled or set aside absent successful administrative or judicial appeal. (Section 351(b) of the INA provides that an applicant who renounced his or her U.S. citizenship before the age of eighteen can have that citizenship reinstated if he or she makes that desire known to the Department of State within six months after attaining the age of eighteen. See also Title 22, Code of Federal Regulations, section 50.20).
Renunciation is the most unequivocal way in which a person can manifest an intention to relinquish U.S. citizenship. Please consider the effects of renouncing U.S. citizenship, described above, before taking this serious and irrevocable action. If you have any further questions regarding this matter, please contact:
Express Mail:
Director
Office of Legal Affairs (CA/OCS/L)
Overseas Citizens Services
Bureau of Consular Affairs
U.S. Department of State
4th Floor
2100 Pennsylvania Avenue, N.W.
Washington, D.C. 20037
Phone: 202-736-9110
Fax: 202-736-9111
Regular Mail
Director
Office of Legal Affairs (CA/OCS/L)
Overseas Citizens Services
Bureau of Consular Affairs
U.S. Department of State
SA-29, 4th Floor
Washington, D.C. 20520
01/10/2013
http://travel.state.gov/law/citizenship/citizenship_776.html
Section 349(a)(5) of the Immigration and Nationality Act (INA) (8 U.S.C. 1481(a)(5)) is the section of law governing the right of a United States citizen to renounce his or her U.S. citizenship. That section of law provides for the loss of nationality by voluntarily
|
"(5) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state , in such form as may be prescribed by the Secretary of State" (emphasis added). |
B. ELEMENTS OF RENUNCIATION
A person wishing to renounce his or her U.S. citizenship must voluntarily and with intent to relinquish U.S. citizenship:
- appear in person before a U.S. consular or diplomatic officer,
- in a foreign country (normally at a U.S. Embassy or Consulate); and
- sign an oath of renunciation
C. REQUIREMENT - RENOUNCE ALL RIGHTS AND PRIVILEGES
A person seeking to renounce U.S. citizenship must renounce all the rights and privileges associated with such citizenships. In the case of Colon v. U.S. Department of State , 2 F.Supp.2d 43 (1998), the U.S. District Court for the District of Columbia rejected Colon’s petition for a writ of mandamus directing the Secretary of State to approve a Certificate of Loss of Nationality in the case because he wanted to retain the right to live in the United States while claiming he was not a U.S. citizen.
D. DUAL NATIONALITY / STATELESSNESS
Persons intending to renounce U.S. citizenship should be aware that, unless they already possess a foreign nationality, they may be rendered stateless and, thus, lack the protection of any government. They may also have difficulty traveling as they may not be entitled to a passport from any country. Even if not stateless, former U.S. citizens would still be required to obtain a visa to travel to the United States, or show that they are eligible for admission pursuant to the terms of the Visa Waiver Pilot Program (VWPP). Nonetheless, renunciation of U.S. citizenship may not prevent a foreign country from deporting that individual to the United States in some non-citizen status.
E. TAX & MILITARY OBLIGATIONS /NO ESCAPE FROM PROSECUTION
Persons who wish to renounce U.S. citizenship should be aware of the fact that renunciation of U.S. citizenship may have no affect whatsoever on his or her U.S. tax or military service obligations –which inevitably means that it may have effect– (contact the Internal Revenue Service or U.S. Selective Service for more information).
In addition, the act of renouncing U.S. citizenship does not allow persons to avoid possible prosecution for crimes which they may have committed in the United States, or escape the repayment of financial obligations previously incurred in the United States or incurred as United States citizens abroad.
F. RENUNCIATION FOR MINOR CHILDREN/INCOMPETENTS
Citizenship is a status that is personal to the U.S. citizen.
Therefore, parents may not renounce the citizenship of their minor children. Similarly, parents/legal guardians may not renounce the citizenship of individuals who are mentally incompetent.
Minors seeking to renounce their U.S. citizenship must demonstrate to a consular officer that they are acting voluntarily and that they fully understand the implications/consequences attendant to the renunciation of U.S. citizenship.
Do you find it odd that a mum or dad cannot make a decision for their own children & their family?
The government acting as parent would be fine in a communist country, but America isn't a communist country, is it?
The voluntary element that is necessary to conduct is actually present here.
G. IRREVOCABILITY OF RENUNCIATION
Finally, those contemplating a renunciation of U.S. citizenship should understand that the act is irrevocable,except as provided in section 351 of the INA (8 U.S.C. 1483), and cannot be canceled or set aside absent successful administrative or judicial appeal. (Section 351(b) of the INA provides that an applicant who renounced his or her U.S. citizenship before the age of eighteen can have that citizenship reinstated if he or she makes that desire known to the Department of State within six months after attaining the age of eighteen. See also Title 22, Code of Federal Regulations, section 50.20).
Renunciation is the most unequivocal way in which a person can manifest an intention to relinquish U.S. citizenship. Please consider the effects of renouncing U.S. citizenship, described above, before taking this serious and irrevocable action. If you have any further questions regarding this matter, please contact:
Express Mail:
Director
Office of Legal Affairs (CA/OCS/L)
Overseas Citizens Services
Bureau of Consular Affairs
U.S. Department of State
4th Floor
2100 Pennsylvania Avenue, N.W.
Washington, D.C. 20037
Phone: 202-736-9110
Fax: 202-736-9111
Regular Mail
Director
Office of Legal Affairs (CA/OCS/L)
Overseas Citizens Services
Bureau of Consular Affairs
U.S. Department of State
SA-29, 4th Floor
Washington, D.C. 20520
01/10/2013
http://travel.state.gov/law/citizenship/citizenship_776.html
Saturday, December 21, 2013
FROM GENESIS TO REVELATION – THE ORIGIN AND SCOPE OF THE ADMIRALTY AND MARITIME JURISDICTION IN THE CONSTITUTIONS OF THE UNITED STATES AND AUSTRALIA
International Commercial Law and Arbitration Conference
Sydney, 22 August 2013 Steven Rares*
1. Chief Justice Allsop, I know, would very much have liked to have been able to give this commentary. Prof Derrington mentioned in her paper[1] that he has previously spoken about s 76(iii) in his characteristically scholarly 2006 Justice Richard Cooper Memorial Lecture[2].
2. As Professors Davies’[3] and Derrington’s excellent papers have noted, the first voyage in the High Court of s 76(iii) in Owners of the SS Kalibia v Wilson (1910) 11 CLR 689 was as propitious for Admiralty and maritime jurisdiction in this country as the first voyage two years later of the Titanic was for transatlantic travel. The principal ground on which the Court held that the Parliament of the Commonwealth could not pass a law of general application providing for compensation for injured seafarers was under s 51(i) as extended by s 98 of the Constitution[4]. Only Barton and Isaacs JJ considered the scope of s 76(iii). They observed that it was not a grant of general legislative power[5].
3. Isaacs J distinguished the United States’ jurisprudence on a narrow basis. He said of s 76(iii): "The interpretation and enforcement of admiralty and maritime law, as it is found to exist, is one thing; the alteration of that law is quite another."[6] But, Barton J reasoned in a way that cannot be valid since the enactment of the Australia Acts 1986 (Cth and UK) removed all British legislative power to make laws with respect to Australia. He rejected the American jurisprudence on the basis that, unlike Australia in 1910, the United States was an independent sovereign nation, separate from the United Kingdom. He said of the Australian context[7]:
5. One intriguing question that Barton J’s analysis raises, is whether s 76(iii) picks up, and so creates, federal jurisdiction over all matters, including matters that arise wholly within an intra-State activity or under the law of a State or that arose under the now repealed Colonial Courts of Admiralty Act 1890 (UK). Barton J proceeded on the basis that in 1910 Britain could make laws that were binding on the Commonwealth and the States in our federation. He denied that s 76(iii) was a source of substantive Commonwealth legislative power to amend what were matters of Admiralty and maritime jurisdiction. However, he appears to have accepted that section as a source of federal jurisdiction over disputes that arose under laws made by other legislatures in the former Australian Colonies, the new States and, of course, Britain.
6. The reasoning employed by Barton J begged the question as to why a new sovereign, island, trading nation would have no freestanding legislative power to make its own laws about matters of Admiralty and maritime jurisdiction that its courts could decide. Thus, if he were right, a court exercising jurisdiction of the third arm of our federal government under s 76(iii) could make law in the way it decided a case, that the first arm of that government, namely the Commonwealth Parliament, could not. The incongruousness of such a position provided the slipway for the Supreme Court of the United States in The Lottawanna[16] to reason, as Prof Davies has explained, that Art III §2 cl 1, referred to a system of law that operated uniformly throughout the United States and hence provided Congress with the legislative power to make and change such laws. Any other view would have led to chaos for inter-State and international sea trade and commerce.
7. It seems that s 76(iii) will apply to matters that do not arise under the Constitution or any laws made by the Parliament because those two very broad areas of jurisdiction are created by ss 76(i) and (ii). If this is so, whatever else s 76(iii) does, it can be used with s 77(i) and (ii), to enable the Parliament of the Commonwealth to make all matters of Admiralty and maritime jurisdiction, however they arise in Australia, justiciable only in a federal court. And if that is so, it is hard to comprehend why the same construction should not be given to s 76(iii) as the Supreme Court of the United States gave to its progenitor in Art III §2 cl 1.
8. As early as 1681, in Hughes v Cornelius[17]the Court of Kings Bench treated the judgment of the French Court of Admiralty that a British trading ship was a lawful prize of France in its war with Holland as a decision in rem. The Court held, quaintly, that the domestic courts should recognize "a sentence in the admiralty … for otherwise the merchants will be in a pleasant condition!" The Oxford English Dictionary[18] tells us that in the 17th century "pleasant" meant "ridiculous".
9. Blackstone[19] wrote that Admiralty or maritime courts had "jurisdiction and power to try and determine all maritime causes; or such injuries, which, though they are in their nature of common law cognizance, yet being committed on the high seas, out of the reach of our ordinary courts of justice, and therefore to be remedied in a peculiar court of our own." He identified the defining characteristic of the jurisdiction as a cause of action "arising wholly upon the sea, and not within the precincts of any country."[20] There was an exception for articles of agreement, or contracts for seaman’s wages, which were justiciable in the courts of admiralty even though the contracts were made on land; but Blackstone said that a dispute about a charterparty was only justiciable in the courts of common law[21].
10. This suggests that by the late 18th century, the Lord High Admiral’s Court applied a body of law in resolving disputes that was both of general application to matters arising on land and sea and also of specialist maritime jurisprudence.
11. There is good reason to think that s 76(iii) was intended to ensure, if the Parliament so decided, that there would be one jurisdiction in Australia to hear and determine all maritime disputes, wherever they occurred and whatever the source of the law to be applied. But, that then begs the question, that our two speakers identified, why s 76(iii) could not be also a source of substantive law.
12. In Owners of "Shin Kobe Maru" v Empire Shipping Co Inc[22] Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ said that the Admiralty Act 1988 (Cth) "was intended to reform the law with respect to the Admiralty jurisdiction"[23]. They held that the Act’s definitions made maritime claims justiciable in proceedings in rem, or generally. In a frequently cited sentence, they said that it was inappropriate to construe provisions conferring jurisdiction on, or granting powers to, a court by making implications or imposing limitations not found in the express words[24]. And, they concluded that the (modern) principles of constitutional interpretation accorded with that principle of statutory construction.
13. The High Court held that "maritime" in s 76(iii) served to expand what was Admiralty jurisdiction, as it existed in 1901, and that s 76(iii)[25]:
15. I doubt that their Honours were seeking to dilute the breadth of vision infused into s 76(iii) in Shin Kobe Maru[29]. Rather, they recognized that individual nations, ordinarily, would provide in their domestic legislation for their maritime law, cognizant of the principled evolution of international conceptions of maritime law over the millennia.
16. As Profs Davies and Derrington suggested, international conventions dealing with matters of Admiralty and maritime jurisdiction have the capacity to inform the scope of s 76(iii). Such conventions did not exist in 1910. Today they abound plentifully. At some point now that the Kalibia[30]is 100 years behind us, the Parliament may seek to test the waters on its powers under s 76(iii) once again. I suspect that if it does, sailing conditions may be found to be more propitious for the development of an harmonious and coherent Australian Admiralty and maritime jurisdiction.
* A judge of the Federal Court of Australia and an additional judge of the Supreme Court of the Australian Capital Territory. The author acknowledges the assistance of his associate, Venetia Brown, in the preparation of this paper. The errors are the author’s alone.
This paper was presented on 22 August 2013 at the International Commercial Law and Arbitration Conference, held at the Federal Court of Australia, Sydney.
[1] Prof SC Derrington, Admiralty and Maritime Jurisdiction in Australia: "They builded better than they knew", delivered 22 August 2013
[2] JLB Allsop, Australian Admiralty and Maritime Law – Sources and Future Directions (2007) 26(1) UQLJ 179
[3] Prof M Davies, Admiralty and Maritime in the United States: "Same same but different", delivered 22 Augsut 2013
[4] This decision is an interesting contrast to the decision of the Supreme Court of the United States in Southern Pacific Co v Jensen 244 US 205 (1917) referred to by Prof Davies. There a longshoreman’s widow failed in her claim for worker’s compensation payable under New Youk law because he suffered a fatal injury while on the ship’s side, and hence over, navigable waters.
[5] 11 CLR at 703-704, 715
[6] 11 CLR at 715
[7] 11 CLR at 704
[8] Australia Act 1986 (Cth) & (UK) s 1
[9] ss 51(i) and 98
[10] s 51(vii)
[11] s 51(xx): see New South Wales v The Commonwealth (The Work Choices Case) (2006) 229 CLR 1 (as the Hon William Gummow AC, QC pointed out in his commentary today)
[12] s 51(x)
[13] s 51(xxix); see The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1
[14] s 57(xxxix)
[15] s 52(iii)
[16] 88 US 558 at 575 (1874)
[17] (1681) 2 Show 242
[18] online sense 5
[19] Commentaries on the Laws of England (15th ed: 1809) Vol 3, A Strahan: London, at 106
[20] ibid 106
[21] ibid 107
[22] (1994) 181 CLR 404 at 420-422
[23] 181 CLR at 420
[24] 181 CLR at 421
[25] 181 CLR at 424
[26] 181 CLR at 425-426
[27] (2003) 218 CLR 330 at 337-338 [13]
[28] [1972] AC 242 at 290-291
[29] 181 CLR at 424
[30] (1910) 11 CLR 689
http://www.fedcourt.gov.au/publications/judges-speeches/justice-rares/rares-j-20130822
Sydney, 22 August 2013 Steven Rares*
1. Chief Justice Allsop, I know, would very much have liked to have been able to give this commentary. Prof Derrington mentioned in her paper[1] that he has previously spoken about s 76(iii) in his characteristically scholarly 2006 Justice Richard Cooper Memorial Lecture[2].
2. As Professors Davies’[3] and Derrington’s excellent papers have noted, the first voyage in the High Court of s 76(iii) in Owners of the SS Kalibia v Wilson (1910) 11 CLR 689 was as propitious for Admiralty and maritime jurisdiction in this country as the first voyage two years later of the Titanic was for transatlantic travel. The principal ground on which the Court held that the Parliament of the Commonwealth could not pass a law of general application providing for compensation for injured seafarers was under s 51(i) as extended by s 98 of the Constitution[4]. Only Barton and Isaacs JJ considered the scope of s 76(iii). They observed that it was not a grant of general legislative power[5].
3. Isaacs J distinguished the United States’ jurisprudence on a narrow basis. He said of s 76(iii): "The interpretation and enforcement of admiralty and maritime law, as it is found to exist, is one thing; the alteration of that law is quite another."[6] But, Barton J reasoned in a way that cannot be valid since the enactment of the Australia Acts 1986 (Cth and UK) removed all British legislative power to make laws with respect to Australia. He rejected the American jurisprudence on the basis that, unlike Australia in 1910, the United States was an independent sovereign nation, separate from the United Kingdom. He said of the Australian context[7]:
"The power to legislate on matters of admiralty and maritime laws, if it existed in the several States at the time of federation, remains reserved to them by force of sec. 107 of the Constitution. But there would be, and there is, an over-riding power to legislate on the subject in the Parliament of the United Kingdom, and the grant in sec. 76 (III.) cannot be construed as an implied transfer, or even delegation, of that legislative power to the Parliament of the Commonwealth in respect of Australia." (emphasis added)4. Of course, since the Australia Acts came into force, a domestic Australian Parliament can be the only source of any new or replacement substantive jurisdiction[8] that can be exercised under s 76(iii). The Constitution created numerous heads of legislative power to make laws concerning matters that on any view are capable of being in Admiralty or maritime jurisdiction. First, under ss 51 and 52, the Parliament has express legislative power to make laws with respect to trade and commerce, including navigation and shipping, with other countries and among the States[9], lighthouses, lightships, beacons and buoys[10], foreign corporations and financial or trading corporations formed within the Commonwealth[11], fisheries in Australian waters beyond territorial limits[12], external affairs – and hence international conventions and treaties[13], matters incidental to any legislative power[14], and matters declared in the Constitution to be within the exclusive power of the Parliament[15]. The last power could relate to the power to make laws under ss 76 and 77. Secondly,there is s 76 (iii) itself that enables the Commonwealth to confer on the High Court in rem and in personam original jurisdiction in all matters of Admiralty and maritime jurisdiction, and ss 77(i) and (ii) enable that jurisdiction to be conferred exclusively on other federal courts.
5. One intriguing question that Barton J’s analysis raises, is whether s 76(iii) picks up, and so creates, federal jurisdiction over all matters, including matters that arise wholly within an intra-State activity or under the law of a State or that arose under the now repealed Colonial Courts of Admiralty Act 1890 (UK). Barton J proceeded on the basis that in 1910 Britain could make laws that were binding on the Commonwealth and the States in our federation. He denied that s 76(iii) was a source of substantive Commonwealth legislative power to amend what were matters of Admiralty and maritime jurisdiction. However, he appears to have accepted that section as a source of federal jurisdiction over disputes that arose under laws made by other legislatures in the former Australian Colonies, the new States and, of course, Britain.
6. The reasoning employed by Barton J begged the question as to why a new sovereign, island, trading nation would have no freestanding legislative power to make its own laws about matters of Admiralty and maritime jurisdiction that its courts could decide. Thus, if he were right, a court exercising jurisdiction of the third arm of our federal government under s 76(iii) could make law in the way it decided a case, that the first arm of that government, namely the Commonwealth Parliament, could not. The incongruousness of such a position provided the slipway for the Supreme Court of the United States in The Lottawanna[16] to reason, as Prof Davies has explained, that Art III §2 cl 1, referred to a system of law that operated uniformly throughout the United States and hence provided Congress with the legislative power to make and change such laws. Any other view would have led to chaos for inter-State and international sea trade and commerce.
7. It seems that s 76(iii) will apply to matters that do not arise under the Constitution or any laws made by the Parliament because those two very broad areas of jurisdiction are created by ss 76(i) and (ii). If this is so, whatever else s 76(iii) does, it can be used with s 77(i) and (ii), to enable the Parliament of the Commonwealth to make all matters of Admiralty and maritime jurisdiction, however they arise in Australia, justiciable only in a federal court. And if that is so, it is hard to comprehend why the same construction should not be given to s 76(iii) as the Supreme Court of the United States gave to its progenitor in Art III §2 cl 1.
8. As early as 1681, in Hughes v Cornelius[17]the Court of Kings Bench treated the judgment of the French Court of Admiralty that a British trading ship was a lawful prize of France in its war with Holland as a decision in rem. The Court held, quaintly, that the domestic courts should recognize "a sentence in the admiralty … for otherwise the merchants will be in a pleasant condition!" The Oxford English Dictionary[18] tells us that in the 17th century "pleasant" meant "ridiculous".
9. Blackstone[19] wrote that Admiralty or maritime courts had "jurisdiction and power to try and determine all maritime causes; or such injuries, which, though they are in their nature of common law cognizance, yet being committed on the high seas, out of the reach of our ordinary courts of justice, and therefore to be remedied in a peculiar court of our own." He identified the defining characteristic of the jurisdiction as a cause of action "arising wholly upon the sea, and not within the precincts of any country."[20] There was an exception for articles of agreement, or contracts for seaman’s wages, which were justiciable in the courts of admiralty even though the contracts were made on land; but Blackstone said that a dispute about a charterparty was only justiciable in the courts of common law[21].
10. This suggests that by the late 18th century, the Lord High Admiral’s Court applied a body of law in resolving disputes that was both of general application to matters arising on land and sea and also of specialist maritime jurisprudence.
11. There is good reason to think that s 76(iii) was intended to ensure, if the Parliament so decided, that there would be one jurisdiction in Australia to hear and determine all maritime disputes, wherever they occurred and whatever the source of the law to be applied. But, that then begs the question, that our two speakers identified, why s 76(iii) could not be also a source of substantive law.
12. In Owners of "Shin Kobe Maru" v Empire Shipping Co Inc[22] Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ said that the Admiralty Act 1988 (Cth) "was intended to reform the law with respect to the Admiralty jurisdiction"[23]. They held that the Act’s definitions made maritime claims justiciable in proceedings in rem, or generally. In a frequently cited sentence, they said that it was inappropriate to construe provisions conferring jurisdiction on, or granting powers to, a court by making implications or imposing limitations not found in the express words[24]. And, they concluded that the (modern) principles of constitutional interpretation accorded with that principle of statutory construction.
13. The High Court held that "maritime" in s 76(iii) served to expand what was Admiralty jurisdiction, as it existed in 1901, and that s 76(iii)[25]:
"extends to matters of the kind generally accepted by maritime nations as falling within a special jurisdiction, sometimes called Admiralty and sometimes called maritime jurisdiction, concerned with the resolution of controversies relating to marine commerce and navigation."14. Accordingly, the Court refused to confine the jurisdiction under s 76(iii) to jurisdictional divisions peculiar to English law, but held that it extended to that of maritime nations generally[26]. In other words, the subject matter over which the Parliament could make laws conferring original jurisdiction under s 76(iii) extended as broadly as what maritime nations generally treat as marine trade and commerce. In Blunden v The Commonwealth[27] Gleeson CJ, Gummow, Hayne and Heydon JJ referred to Lord Diplock’s explanation of maritime law in The Tojo Maru[28]. He said that outside the special field of prize, despite the international sources of its derivation, rights and liabilities in maritime law were derived from the internal municipal law of a particular sovereign state and not from "a maritime law of the world".
15. I doubt that their Honours were seeking to dilute the breadth of vision infused into s 76(iii) in Shin Kobe Maru[29]. Rather, they recognized that individual nations, ordinarily, would provide in their domestic legislation for their maritime law, cognizant of the principled evolution of international conceptions of maritime law over the millennia.
16. As Profs Davies and Derrington suggested, international conventions dealing with matters of Admiralty and maritime jurisdiction have the capacity to inform the scope of s 76(iii). Such conventions did not exist in 1910. Today they abound plentifully. At some point now that the Kalibia[30]is 100 years behind us, the Parliament may seek to test the waters on its powers under s 76(iii) once again. I suspect that if it does, sailing conditions may be found to be more propitious for the development of an harmonious and coherent Australian Admiralty and maritime jurisdiction.
* A judge of the Federal Court of Australia and an additional judge of the Supreme Court of the Australian Capital Territory. The author acknowledges the assistance of his associate, Venetia Brown, in the preparation of this paper. The errors are the author’s alone.
This paper was presented on 22 August 2013 at the International Commercial Law and Arbitration Conference, held at the Federal Court of Australia, Sydney.
[1] Prof SC Derrington, Admiralty and Maritime Jurisdiction in Australia: "They builded better than they knew", delivered 22 August 2013
[2] JLB Allsop, Australian Admiralty and Maritime Law – Sources and Future Directions (2007) 26(1) UQLJ 179
[3] Prof M Davies, Admiralty and Maritime in the United States: "Same same but different", delivered 22 Augsut 2013
[4] This decision is an interesting contrast to the decision of the Supreme Court of the United States in Southern Pacific Co v Jensen 244 US 205 (1917) referred to by Prof Davies. There a longshoreman’s widow failed in her claim for worker’s compensation payable under New Youk law because he suffered a fatal injury while on the ship’s side, and hence over, navigable waters.
[5] 11 CLR at 703-704, 715
[6] 11 CLR at 715
[7] 11 CLR at 704
[8] Australia Act 1986 (Cth) & (UK) s 1
[9] ss 51(i) and 98
[10] s 51(vii)
[11] s 51(xx): see New South Wales v The Commonwealth (The Work Choices Case) (2006) 229 CLR 1 (as the Hon William Gummow AC, QC pointed out in his commentary today)
[12] s 51(x)
[13] s 51(xxix); see The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1
[14] s 57(xxxix)
[15] s 52(iii)
[16] 88 US 558 at 575 (1874)
[17] (1681) 2 Show 242
[18] online sense 5
[19] Commentaries on the Laws of England (15th ed: 1809) Vol 3, A Strahan: London, at 106
[20] ibid 106
[21] ibid 107
[22] (1994) 181 CLR 404 at 420-422
[23] 181 CLR at 420
[24] 181 CLR at 421
[25] 181 CLR at 424
[26] 181 CLR at 425-426
[27] (2003) 218 CLR 330 at 337-338 [13]
[28] [1972] AC 242 at 290-291
[29] 181 CLR at 424
[30] (1910) 11 CLR 689
http://www.fedcourt.gov.au/publications/judges-speeches/justice-rares/rares-j-20130822
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