IN THE MAGISTRATES COURT No PKA 4497/2010
At Kalgoorlie
Between Reksmiss ( State of Western Australia ) Complainant
And
Salvatore Tomarchio; Defendant
________________________________________________________________________________
Application for a Declaration, The Issue of a S 78B Judiciary Act 1903 Notice and the constitution of the Magistrates Court in Kalgoorlie as a Ch III Constitutional court.
RACIAL DISCRIMINATION ACT 1975
RACIAL DISCRIMINATION ACT 1975 – SECT 9
Racial discrimination to be unlawful
(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
S10. Rights to equality before the law
(1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

AUSTRALIAN HUMAN RIGHTS COMMISSION ACT 1986
Schedule 2:
International Covenant on Civil and Political Rights Article 14: 1.All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. ( only a jury can provide that) The Press and the public may be excluded from all or part of a trial for reasons of morals, public order ( ordre public ) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality;
( a ) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
( b )To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; ( not necessarily a member of the legal profession or from Western Australia )
( c ) To be tried without undue delay;
( d ) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; ( The Dietreich principle)
( e ) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
( f )To have the free assistance of an interpreter if he cannot understand or speak the language used in court;
( g )Not to be compelled to testify against himself or to confess guilt.
4.In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.
5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.
6.When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.
7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.
Article 17
1. No one shall be subjected to arbitrary ( by a single Judge) or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2.Everyone has the right to the protection of the law against such interference or attacks.
Article 50
The provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions.
268.12 Criminal Code Act 1995
Crime against humanity–imprisonment or other severe deprivation of physical liberty
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator imprisons one or more persons or otherwise severely deprives one or more persons of physical liberty; and
(b)the perpetrator’s conduct violates article 9, 14 or 15 of the Covenant; and
(c) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 17 years.
2 Strict liability applies to paragraph (1)(b).
3 RULES OF THE SUPREME COURT 1971 – ORDER 58 RULE 11
11 . Construction or validity of statutes etc.
(1) Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of a statute, or of a regulation, rule, by-law or instrument made or purporting to be made under a statute, or of the validity of any such regulation, rule, by-law, or instrument, may apply by originating summons for the determination of such question of construction or validity, and for a declaration as to the right claimed.
(2) This Rule is subject to any special statutory provision for the determination of any such matters.

Written argument in support
______________________________________________________________________________
Prepared by Salvatore Tomarchio
1 On the 20th July 2011, I, Salvatore Tomarchio caused to be filed in the Kalgoorlie Magistrates Court a bundle of documents, about 130 pages in number called ‘List of Authorities” and on those documents and Commonwealth Statute that apply as a defence, I make the following submissions:

2 JURISDICTION: The Magistrates Court of Western Australia is granted jurisdiction under the Competition and Consumer Act 2010 by s 86 (2) which materially reads: (2) The several courts of the States are invested with federal jurisdiction within the limits of their several jurisdictions, whether those limits are as to locality, subject-matter or otherwise, and, subject to the Constitution, and my defence arises under the Competition and Consumer Act 2010.

3 The Magistrates Court of Western Australia is invested with the same equitable jurisdiction as the Supreme Court by the Supreme Court Act 1935: 34 . Rules of law in this Act to apply in all courts
The several rules of law enacted and declared by this Act shall be in force and take effect in all courts whatsoever in Western Australia so far as the matters to which such rules relate shall be respectively cognizable by such courts.

4 S 24 (7) Supreme Court Act 1935 (7) The Court, in the exercise of the jurisdiction vested in it by this Act, in every cause or matter pending before it, shall have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as shall seem just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any and every legal or equitable claim properly brought forward by them in such cause or matter; so that, as far as possible, all matters so in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided.

5 Cause and Matter are defined in S 2 Judiciary Act 1903, to include criminal proceedings, and my defence is complete.

6 In Addition I cite further Commonwealth documents and Instruments of a legislative nature, under the Royal Seal of Her Majesty Elizabeth the Second including the Authorised King James Version of the Holy Bible which document by reference to S 15AB Acts Interpretation Act 1901 is admissible in a court, to assist the court in its task of ascertaining the laws applicable to the facts of this case, and the remedy available from the interpretation of the Statutes cited.

7 Further I assume that all parties and the Magistrate who is a Judge, within the meaning of Judge, in the definition of Appeal, statutorily defined in S 2 Judiciary Act 1903, will follow the High Court precedents cited, and follow the guidance of the Late Justice Lionel Murphy, former Attorney General of the Commonwealth, as cited in his opinion in Metwally, produced and shown to the court, on page 71 of the List of Authorities.

8 In my defence I rely upon firstly, the Commonwealth of Australia Constitution Act 1900, and Constitution, and secondly the laws of the Commonwealth, and lastly the Laws of Western Australia which is by the binding definitions contained in the Statutory Dictionary of the Criminal Code Act 1995 a public authority constituted as is the Commonwealth of Australia , under the Commonwealth of Australia Constitution Act 1900, and can have no legislative power higher that that of the Parliament of the Commonwealth.
9 A Magistrate is, by the definitions in the Criminal Code Act 1995 a Commonwealth Judicial Officer, and a Commonwealth Public Official within the definitions in the Criminal Code Act 1995.
10 The Road between Laverton and Kalgoorlie is decorated with white lines, to ensure that the Rules of the Road prevail, and the laws of the Commonwealth have a similar marking, a White broken line marks the middle of the Road, two solid White lines mark each side, and the Rules dictate Keep left. If any car veers too far left or right it ends up in the scrub, and the journey ends, and when a Law made by the Parliament of Western Australia has veered too far either left or right of centre, it too is invalid, and the job of Judges and Magistrates is to decide, that fact, on the principles set out on Page 69.
11 The Charges laid against the defendant, namely giving credit, or selling money, without a licence issued by the State of Western Australia to subjects of Her Majesty Elizabeth the Second over the age of 18, and otherwise able to make responsible decisions, is, it is submitted, an attempt to impose a condition that to use the words of Lionel Murphy, on a subject of the Commonwealth, that a licence be had, to do what is authorised by a Law of the Commonwealth, namely the Competition and Consumer Act 2010, without hindrance from the State of Western Australia, is invalid. S 45 (2) Competition and Consumer Act 2010 provides that : (2) A corporation shall not:
(a) make a contract or arrangement, or arrive at an understanding, if:
(i) the proposed contract, arrangement or understanding contains an exclusionary provision; or (ii)provision of the proposed contract, arrangement or understanding has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or
(b) give effect to a provision of a contract, arrangement or understanding, whether the contract or arrangement was made, or the understanding was arrived at, before or after the commencement of this section, if that provision:
(i) is an exclusionary provision; or
(ii) has the purpose, or has or is likely to have the effect, of substantially lessening competition.
12 It also provides: SECT 2B Application of Act to States and Territories
(1) The following provisions of this Act bind the Crown in right of each of the States, of the Northern Territory and of the Australian Capital Territory, so far as the Crown carries on a business, either directly or by an authority of the State or Territory:
(a) Part IV; PART IV–RESTRICTIVE TRADE PRACTICES includes S 45.
(b) Part XIB;
(c) the other provisions of this Act so far as they relate to the above provisions.
(2) Nothing in this Act renders the Crown in right of a State or Territory liable to a pecuniary penalty or to be prosecuted for an offence.
(3) The protection in subsection (2) does not apply to an authority of a State or Territory.
13 However the prosecutor of this action, as an authority of the State of Western Australia is not protected, and the provisions of SECT 82 Actions for damages [see Note 2]
(1) A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV, IVA, IVB or V or section 51AC may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.
(2) An action under subsection (1) may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct accrued.
14 ESTOPPEL: WALTONS STORES (INTERSTATE) LTD. v. MAHER [1988] HCA 7; (1988) 164 CLR 387 Brennan J ( Later CJ)
34. In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that:
(1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship;
(2) the defendant has induced the plaintiff to adopt that assumption or expectation;
(3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation;
(4) the defendant knew or intended him to do so;
(5) the plaintiff’s action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and
(6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.
15 In this case the equitable estoppel is raised against the agents of the Crown. Equity follows the law, the Competition and Consumer Act 2010 authorised the conduct of the defendant. S45 Competition and Consumer Act 2010 prohibits the prosecutor from proceeding further.
16 The charges laid against me, as a benefactor of the population, as a person who honors the equality of all persons before Almighty God, as a person who provided a service to all individuals, are politically and commercially motivated by elements of the population centred in Perth, 1000 kilometres away, and orchestrated and influenced from Sydney, by the now disgraced Murdoch press and by a woman called Jenny Macklin, a minister in the government headed by an atheist from Wales resident in Lalor , Victoria, whose government is dependant on a Party that openly opposes Christianity as a philosophy, known as “The Greens”.
17 They are also instigated and encouraged by the manager of Warburton Aboriginal Settlement who has a commercial interest in maintaining the dependence of what he regards as a resource,the local population, upon his services. This person in Damien McLean, and he regarded the access to freedom to contract, extended to travellers through Laverton, who on their honour, and in good faith, were free to contract with me, under the provisions of the International Covenant on Civil and Political Rights a law enacted in 1986 as Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 and now continuing as a provision of the Australian Human Rights Commission Act 1986. The International Covenant on Civil and Political Rights is Schedule 2 to that Act, and extends to all Australians, and persons lawfully in Australia, equality before the law by its article 14.
18 The success of these charges depends totally upon the exercise by a Single Magistrate, of a totally anti Christian function vested in that Magistrate, by the Parliament of Western Australia which in reliance upon the Australia Act 1986 has declared itself a Sovereign State within the Commonwealth in absolute defiance of the will of the Australian people expressed as the Commonwealth of Australia Constitution Act 1900. The Australia Act 1986 is an oxymoron act, as S 5 continues the Constitution , but the rest of it, promulgated without the requisite referendum, repeals the Australian Constitution, as well. That function is the act of Judging.
19 As a Christian and a free man, under the Commonwealth of Australia Constitution Act 1900, I am free to claim the Statutory defence, contained in S 9.5 of the Criminal Code Act 1995, namely Claim of Right, and once raised, that Statutory Claim of Right, is a complete and unequivocal answer to any exercise by Justices, Judges and Magistrates of arbitrary and summary jurisdiction, over the person and estate which I enjoy.
20 There is a power struggle going forward in Canberra, between the forces of Almighty God and the forces of the alternative, variously known as Satan, Lucifer, the forces of evil, and this war against the forces of darkness, has divided the Australian Labor Party, caused it to join forces with a political party, that openly opposes Christianity, refuses to accept that the Holy Bible contains the New Testament which is a Covenant by Almighty God between the people of the Church of Jesus Christ, and Himself, that finds its expression in the Commonwealth of Australia Constitution Act 1900.
21 The former Prime Minister is a church attending Anglican Christian, and his term as Prime Minister is hallmarked by his systematic replacement of the word “Court” in existing legislation, with the constitutionally compliant word “court” and his Attorney General was the Hon Robert McClelland, MP, whose term as a member of the Parliament of the Commonwealth will come to an end upon the calling of a new election, because he is probably a Christian. His electorate is Barton, in New South Wales and he has been dis-endorsed by the New South Wales Australian Labor Party.
22 It is a legislative requirement that if an issue of a Constitutional nature is raised, it is the duty of the court, including a court of a State, in a matter arising under the Constitution, and involving its interpretation, (S78A Judiciary Act 1903) it is the duty of the court, ( S 78B (1) Judiciary Act 1903) not to proceed further, until it is satisfied, that notice of the cause has been given to all Attorneys General, and a reasonable time has elapsed since it has been given, for the Attorneys General to attend and intervene.
23 Since its inception, in 1976, and its last amendment in 1994, the S 78B Notice under the Judiciary Act 1903, has been a singularly ineffective instrument for the enforcement of the Australian Constitution, as a Statutory instrument for the protection of civil and political rights. This is because all Attorneys General hold the power and authority of a Ch III Constitution court in contempt, and Judges and Magistrates have been largely unwilling to call them for contempt, and commit them to the Statutory Term of Imprisonment enacted in 1914, and now amended to provide ten years imprisonment, by s 43 Crimes Act 1914, ( Cth) as an attempt to obstruct, prevent, pervert or defeat the course of justice in respect of the Judicial power of the Commonwealth, and the Magistrate charged with hearing this matter, has the power, to commit all the Attorneys General to trial in the District Court in Western Australia if they shall fail to appear and uphold the honour and dignity of Her Majesty Elizabeth the Second the only lawful Sovereign in the Commonwealth by s 16 Acts Interpretation Act 1901.
24 By S 44 (ii) Australian Constitution, such a summons, requiring the attendance of the Commonwealth Attorney General if issued, would have to be answered in the court, and if the Attorney General continued to offend, he would be excluded from the Parliament of the Commonwealth, after being committed for trial and convicted by the judges required by s 79 Constitution, and tried with a jury, under S 80 Constitution. This will force the Prime Minister to call an election, and submit her plan to introduce a Carbon Tax to the people of the Commonwealth.
25 In that respect the power of Her Majesty Elizabeth the Second as Sovereign of the Commonwealth, is greater than the power of the Prime Minister, and may be exercised by all Judges and Magistrates who are called upon to exercise the Judicial power of the Commonwealth. I, Salvatore Tomarchio call upon the Magistrate to exercise in Laverton, the Judicial power of the Commonwealth on behalf of Her Majesty Elizabeth the Second , notwithstanding anything in the laws of Western Australia. ( S 5 Commonwealth of Australia Constitution Act 1900).
26 All Judges and Magistrates under the Australian Constitution, are equal, and all exercise the Judicial power of the Commonwealth since the case of Ah Yick v Lehmert (1905) 2 CLR 593 which is filed in this court, as authority 7, pages 12-19. Further the case R v Kidman (1915) 20 CLR 425, ( Pages 20-22) is cited to support the proposition that the assumption by the State of Western Australia of Sovereignty, and the vesting of that Sovereignty in an individual, sitting in a Court, is and remains illegal.
27 This is made crystal clear to all who can read and understand the English language, by s 2 Judiciary Act 1903, where the word Appeal is statutorily defined, and the right to Appeal any decision by a Judge in a Court, is vested in not only the High Court, but in every Judge and Magistrate in the Commonwealth. The High Court in 1996 established the “Kable Principle” and an extract from that case is cited as Authority 9, 10 and 11, pages 23-41, and I say the “Kable Principle” applies to me, and the requirement for me to have a licence to do business with members of the Commonwealth is illegal, illegitimate, and totally unlawful, notwithstanding that State legislation purports to make it a crime.

28 The “Kable Principle” was established by a proceeding in 1995 in Canberra, where it was accepted that “The High Court of Parliament” is a court, ( Transcript 7th December 1995 High Court) created by the Commonwealth of Australia Constitution Act 1900, and all State Parliaments are courts, which must abide the principles of the Australian Constitution. The arbitrary imprisonment of Gregory Wayne Kable, ordered by the Parliament of New South Wales and requiring the making of an arbitrary order by a single Judge, was held unconstitutional, and the arbitrary requirement that I hold a licence to do a declared type of business with Aboriginal and other Australians is likewise illegal.

29 Under the Criminal Procedure Act 2004, I, Salvatore Tomarchio become an Authorised Person, in the following instances.
authorised person in relation to an offence, means —
(a) if under another written law a person or class of person is authorised to commence a prosecution for the offence, that person or a person of that class; or

30 The other written law, is S 13 Crimes Act 1914, ( Cth) which authorises me, on being satisfied and making a personal judgment, that a law of the Commonwealth has been broken, is made in these terms: Institution of proceedings in respect of offences: unless the contrary intention appears in the Act or regulations creating the offence any person may:
(a) Institute proceedings for the commitment for trial of any person in respect of any indictable offence against the law of the Commonwealth; or

31 Unless this prosecution in a summary manner is stopped, and it is continued on indictment, the Parliament of the Commonwealth has provided in S 43 Crimes Act 1914, ( Cth) that a penalty may be inflicted upon the prosecutor, for attempting to pervert the course of justice in respect of the Judicial power of the Commonwealth.

32 This offence is complete as soon as any Court, constituted by any Judge or Magistrate attempts to make orders against any Australian , no matter where domiciled in Australia, and further, as part of the Australian contribution to the worldwide War on Terror, the Parliament of the Commonwealth enacted the International Criminal Court Act 2002 (Cth) and the Statute of Rome as Schedule 2 to that Act.

33 Further as an addition and to reinforce the intention to end the war of terror, waged by the Governments of Australia against the civilian population of Australia by the legal profession, S 268:10, 268:11, 268:12, 268:20 and 268:23 Criminal Code Act 1995 were inserted as Crimes against humanity, into the Criminal Code Act 1995 effective from Act no 42 of 2002, and notwithstanding the Australian Federal Police have failed to enforce these laws, the option is available to me, and or any other person who knows the facts of this case. Brebner v Bruce (1950) High Court 82 CLR 161.

34 S 15AB (1) (b) (ii) Acts Interpretation Act 1901 provides that if an interpretation of an Act, is manifestly absurd or unreasonable, extrinsic material may be used to clarify its meaning.

35 Her Majesty Elizabeth the Second is the Sovereign of Australia by S 16 Acts Interpretation Act 1901 and to take office She must take the Statutory Oath contained in the Coronation Oath 1688 ( Imp) . She is also bound by the Magna Carta both Cl 14 and Cl 29 and these sections were put beyond the legislative powers of any Parliament to repeal, by S 128 Constitution, the referendum requirement. Document 3.

36 The Authorised King James Version of the Holy Bible is a document of a legislative character, having been commissioned by James 1 King of England, to provide to all Englishmen, the text of the Gospels so that all may know the law, under which the subjects of Her Majesty may expect to be governed.

37 The Authorised King James Version of the Holy Bible was the inspiration for the Commonwealth of Australia Constitution Act 1900, and it is the fundamental Rules of Court, for every Ch III Constitution court, in that the one unforgivable sin in all of Christendom, is the sin of being a Judge, the words Judge and Court in capital letters in the definition of Appeal in s 2 Judiciary Act 1903 reflect this truth, and there is a straight forward and understandable prohibition in Matthew 7 Verse 1 on any one person passing judgment or sentence on another. Furher in Romans 2 Verse 1, the Holy Bible says: “ Therefore thou art inexcusable, O man ( and woman) whosoever thou art that judgest: for wherein thou judgest another, thou condemnest thyself: for thou that judgest doest the same things.
38 The word Commonwealth comes out of Ephesians 2:12 where the words commonwealth of Israel, Israel being the name given to Jacob, in the Old Testament in Genesis 32:28 after his encounter with Almighty God. It means Man of God.
39 The prayer which Jesus Christ taught the men of Israel, set out in Standing orders 43 and 50 Houses of the Parliament of the Commonwealth, and which starts each days proceedings in that court, ( McHUGH J: It is said frequently, “High Court of Parliament punishes for contempt”. The House of Commons is referred to as the High Court of Parliament. Transcript from Kable 7/12/1995) is the prayer from Matthew 6:9-14, commonly known as the Lord’s Prayer, and a court, is a place where the will of Almighty God is found and applied, so that His will be done on earth as it is in heaven.

40 S 49 Constitution provides that the Parliament of the Commonwealth is the same as the Commons house of the Parliament of the United Kingdom.
41 The Australian Constitution, is in actual fact a Peace Treaty, between the Roman Catholic Australians and the Anglican and Protestant Australian, enacted after two referendums were held, the first having failed, because it was not supported by the Roman Catholic church. The condition on support, was S 116 Constitution, removing religious discrimination, in the appointment of Judges and Magistrates who until 1900, had to be Protestants, as well as lawyers. It also prohibits any prescription of any religious observance, and is equally binding on State Parliaments as it is on the Parliament of the Commonwealth.
42 To insist a person attends a Court and submits to the judgement of a State Public Official, offends Christians, because this is an Islamic custom, totally foreign to the Rule of Law enjoyed by Christian Australians, until 1986 and the Australia Act 1986.
43 The word court, uncapitalised and standing alone, appears 22 times in the Commonwealth of Australia Constitution Act 1900, once in S5, and 21 times in S71-80 Constitution, and the word “judges” meaning judges of fact, appears in S 79 Constitution.
44 If it does not dismiss this proceeding the court must order a S78B Notice under the Judiciary Act 1903 to issue, and if the Attorneys General do not attend, they must be summonsed to answer why they are allowing the laws of the Commonwealth, to be disregarded in the conduct of legal proceedings between subjects of Her Majesty Elizabeth the Second.
Written submissions:

Salvatore Tomarchio dated this 25th July 2011.