What is the Australian Constitution?
The Constitution of Australia
is the supreme law under which the Australian Commonwealth Government
operates. It consists of several documents.
The most important is the Constitution of the Commonwealth of Australia
.The Constitution was approved in referendums
held over 1898–1900 by the people of the Australian colonies
, and the approved draft was enacted as a section of the Commonwealth of Australia Constitution Act 1900
(Imp), originally an Act
of the Parliament of the United Kingdom
“The Australian people helped write and pass the constitution as a document to protect the people and the integrity of our system of politics and justice
was given to the Constitution by Queen Victoria
on 9 July 1900, upon which date the Constitution became law. It came into force on 1 January 1901 by virtue of a proclamation issued by Queen Victoria on 17 September 1900, pursuant to section 3 of the Act.
As Australia advanced as a sovereign nation, parliaments wanted to distance them selves from our English history, some would say at the same time their own self interest made dis-empowering our monarch from her part in our constitution an advantage in itself.
The Australia Act of 1986
was the next step, removing the power of the United Kingdom parliament to change the Constitution as in force in Australia, and diminishing the sovereign from her role, leaving Constitutional change to the people with in the prescribed referendum procedures.
When we look into the enactment of the Australia act, Australia referred to two Acts at the same time, respectively, as the Australia Act 1986 (Cth) and the Australia Act 1986 (UK). These nearly identical Acts were passed by the two parliaments in Australia and the United Kingdom to come into effect simultaneously, whether it was because of uncertainty as to which of the two parliaments had the actual authority to do so, or because neither wanted to wear the consequences is open to debate
The Australia act and the previous Statue of Westminster 1831, slowly took the power away from the queen to invalidate legislation, or makes demands on our parliament, something very few Australians were privy to, and the Constitution itself did not allow.
“These acts also took away the powers of the queen to sack either representatives or the government, or the ability to take disputes to the privy council, all of which empowered those who enacted the Act, rather than improved the position of the people or the nation as a whole”.
The Statute of Westminster Adoption Act made Australia an independent nation (though it had been a de facto independent for many years before then), while the Australia Act was written to sever the last remaining constitutional links between Australia and the United Kingdom.
The importance of this stage in our legislative history, is the simple fact that the Australia Act made massive changes to the ideals entrenched in our constitution, which were not allowed under the Constitution with out the majority vote of the people, the start of the undermining our our most basic if not our only written rights.
Changes to the constitution are only possible by referenda, where the people directly vote on any proposed changes, while the constitution itself protects the Australian people against its own governance, and provides power to the judiciary, over recent years both the courts and the government have attempted to water down those protections.
Since the enactment of the Australia Act, it appears the governments have come to believe they can now write legislation that tries to skip around the protections inherent in our constitution, in fact it is also worth noting that the judiciary also at times forget the importance of this founding document, clearly showing a preference to back government legislation even when it clearly is outside the powers of the government to so write.
Legislation that offends what we the people consider our most basic rights, highlights the important need to not only protect what we have, but to improve the way in which our rights and liberty's are written and delivered.
The very fact that the constitution is out of sight out of mind, and in fact very much unknown to the people of Australia, in recent years, this fact has enabled our parliament and our court system to act as if it no longer exists, the words “The constitution no longer applies in this court” have been heard by my ears on many occasions, yet when bad legislation is questioned in the high court, it has become a regular occurrence to see such poorly written legislation fail.
But how many of us in the fight to protect our rights, can afford a high court challenge, let alone the filling frees on their own?
"Interestingly enough, many pieces of legislation that have failed including SOCCA (serious and organised crime control Act) were never introduced in Victoria as any such legislation would offend Victorians bill of rights, yet the constitution clearly states that all laws in any state must be consistent, as issue I will cover later in this article".
What the people of Australia dare not forget, is the constitution was written by us, to protect not only we the people but to ensure a fair system of justice, the very fact that our present parliament and indeed our prime minister have turned their backs on our founding document, diminishes their position, not the protections and value of the Constitution itself.
“In recent times attacks on our constitution have been many, the demise of our property rights, commercialising water, the existence of local government, any taxation imposed that is not issued by the federal government like for instance council rates, the structural biases in our electoral system, inequity in laws between the states, legislative attacks on minority groups, lack of equity in our judicial system and many more”.
Just to confuse issues the government now register all their departments as corporate entities, like the NRM (National resource management) which at law appears to mean we must be in contract with these government departments or our supposed local governments, before we interact with them, yet the legislation that empowers such organisations provides them powers that appear beyond the scope of our government to so issue.
You will also find by way of a simple Google search that the Australia government has also become a corporate entity registered in the US, the governments answer to this unique situation is one of “We have to register our nation to be able to do business with other nations”, what a load of garbage, Australia has successfully dealt with other nations, as a sovereign nation, without the need to be dictated to.
"So why is Australia registered as a corporate entity?"
I find it hard to understand just where this corporate "Australia" sits in our political system, or why Australia which is now deemed a sovereign nation, would need to not only register as a company in a foreign nation, but supply them with all out nations financials?
I will make note at this stage on the need to consider an easier method of the protection and understanding of our rights, simply because years of casual study still leaves the air of uncertainty for even those considered experts on the issues of civil and human rights, let alone any Australians acceptance of our current legislative agenda.“
A simplified bill of rights that can become a high school subject, and become retrospective on current legislation, appears the most educated way forward.”
The greatest issue facing our long and short term future is the known fact that those in a position to bring change, and those we elect to protect our best interests, have become the very same people working to take our rights and liberty’s away.
Our present Prime Minister Julia Gillard did not take the oath under the schedule of our constitution to be sworn in as prime minister, an issue which our constitution deems “Representatives incapable of sitting”
Section 46; Until the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction.
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 42 Oath or affirmation of allegiance Every senator and every member of the House of Representatives shall before taking his seat make and subscribe before the Governor‑General, or some person authorised by him, an oath or affirmation of allegiance in the form set forth in the schedule to this Constitution.
The question worthy here, is if our own prime minister can show such ignorance for our founding document, then are we the people left with no protections in our own country?
There are many issues unfolding in Australia that simply make no sense, a perfect example is local government, or as they are better known, local council/shires. On 3/9/1988 a referendum with the following context (provided by the AEC) was put to the Australian people. It was (3) Constitution Alteration (Local Government) 1988.
The legislative proposal was,"119A. Each State shall provide for the establishment & continuance of a system of local government, with local government bodies elected in accordance with the laws of the State & empowered to administer, and to make by-laws, for their respective areas in accordance with the laws of the State.
"The result of this referendum was the people voted NO, yet local government now write law, without the right, the knowledge or the capacity to police or administer, tax their constituents (rates), issue fines, and cover local business in expensive red tape.
These organisations never existed before the Constitution, they were not involved in public debate when writing the constitution, and their attempts to be recognised or even continue to exist, were knocked back by the Australian people, so not only do they have no right to exist, any legislation that attempts to empower them is seemingly invalid, if indeed the constitution still holds any value or protections to Australia as a nation.
We see headlines that the councils are considering taking people’s homes for non payment of the Taxes, yet if like me you read high court cases, the outcomes beg to differ, so could it be considered that most law being used is only as valid as the peoples lack of knowledge, or have our rights genuinely been taken by stealth.
The constitution also covers taxation, in fact not so long ago, the high court acknowledged that only the federal government could collect taxation,“The High Court of Australia ruled that “State Governments could not raise ANY TAX” and because of this the ‘State Excise on Fuel, Tobacco & Alcohol’ was removed.”
Clearly in sections 51 and 52 of the Constitution and confirmed by the Constitutional Commission (1985 – 1988) report that the power of taxation is held exclusively by the Federal Parliament.
So consider some of the massive costs that affect our lives, starting with Councils, who charge us rates, which have been described as a tax, or state governments charging land tax? if a state government cannot tax its people, how can the local council tax us, or are they bluffing?
“John Winston Howard, Peter Howard Costello & ’Commissioner for Taxation’ Michael Joseph Carmody all stated before the introduction of the infamous “Goods and Services Tax”, Quote: “Local government Council Rates will attract no GST because Council Rates are a tax and we can’t tax a tax”, similar questions could be asked about land tax!
“If the Parliament of the State did not have the powers to empower local government before the Referendum, they were most certainly prohibited from having them after the Referendum.”
If a‘rateable person within the meaning of the local government act 1995’ did not exist at the time of the federation of the states into a commonwealth. It can be seen then, that since ‘local government’ did not exist at the time of Federation, then there can be no continuance of local government or its laws beyond the NO of the Australian people?
When as citizens we try to grasp exactly what our rights are, we are not only confronted with a myriad of information, it is the interpretation of words and understanding of precedents that empowers self determination in our judicial system and our ability to deal with government, something I consider the sole domain of societies wealthy, leaving us at the mercy of misinformation and what could easily be described as “Stand over tactics and spin”.
If the council for instance say they can take your home for unpaid rates, and the judges back such un-truths, it is highly unlikely that a person who can not afford to pay their rates, has the money to challenge such a move in the federal or high courts of Australia.
So let’s look through a few more sections of the constitution, and consider whether its ideals are still protecting us as a sovereign nation, and if indeed our representatives are still acting in both the constitution and the peoples best interests.
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 80 Trial by jury The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.
Yet we see trial by jury denied in many cases, where indeed it can only be denied by the mutual decision of both parties to an action.
Trial by jury is an important part of our system of common law, as it is built around precedents, which requires the impact of social change with in its ranks, and that was provided by the use of a jury of ones peers, the last thing we want is precedent based around social engineering or out of control governments.
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 47 Disputed elections Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises.
The Parliament no longer hear such cases, and state electoral legislation now allows disputed returns to be heard by a single judge, overriding once again our constitutional protections, in a case I held in 2010, the outcome “Regardless of the conduct of an election, a general election cannot be invalidated” even when the election under common law strayed so far from the legislative protections it was not an election at law.
Going further, the aforementioned case evidenced tens of thousands of missing names, tens of thousands of missing ballot papers and over 25 offences of the protections of the act itself. (Full details under the article “Democracy the whole truth” on my website.
Your very own government in the above case tried to argue, that the people have no common-law right to even vote ;(
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 117 Rights of residents in States A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.
I have yet to read any precedents on this section of the constitution, although to some degree it infers consistency of both laws and treatment through out the commonwealth, something we are far from enjoying.
If one travels from one state to another a myriad of issues can arise, and we all know that to be true, from vehicle engineering standards to available rights and protections, even the display of registration labels, so many issues arise when people confuse legal rights with legislated ideals.
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – CLAUSE 5 Operation of the Constitution and laws [see Note 3] This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen’s ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.
If referenda are of value to the constitution and its primary goals, then referenda results apply across the Nation in every parliament and court, begging the question how do local councils exist .I have also heard the words many times in all levels of our court system “The constitution does not apply in our courts” begging the question, “can our courts exist without it?”
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 8 Qualification of electors The qualification of electors of senators shall be in each State that which is prescribed by this Constitution, or by the Parliament, as the qualification for electors of members of the House of Representatives; but in the choosing of senators each elector shall vote only once.
The constitution allows one vote, not a vote that can be devalued and or passed on, without the will of the elector being known, in fact recent election conduct, has exposed that an electoral commission may “guess and electors intent beyond that they have marked” allowing a single vote to be transferred, even if the electors mark determines a different result of their will. (see result of court of disputed returns 2007 SA supreme court acting as)
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 109 Inconsistency of laws When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
Yet go to court over say a speeding fine, to find the devise that is telling the court you were committing an offence, does not comply with commonwealth legislation, but it does comply with state legislation, and the later is upheld, we indeed have issues.
Recently in the courts I proved a current devise did not comply with law, state or commonwealth, yet the outcome was the fine still stands, so has the law become an ass?
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 128 Mode of altering the Constitution [see Note 1] This Constitution shall not be altered except in the following manner:The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives.
But if either House passes any such proposed law by an absolute majority, and the other House rejects or fails to pass it, or passes it with any amendment to which the first‑mentioned House will not agree, and if after an interval of three months the first‑mentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment which has been made or agreed to by the other House, and such other House rejects or fails to pass it or passes it with any amendment to which the first‑mentioned House will not agree, the Governor‑General may submit the proposed law as last proposed by the first‑mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to the electors in each State and Territory qualified to vote for the election of the House of Representatives.
When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only one‑half the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails
.And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor‑General for the Queen’s assent.No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law.
If the people say NO, that means NO, if the constitution is to be altered, then we have the final say, we the people, the terms are simple, yet disregarded, were we asked if we supported the Australia Act? Were we asked if we wanted the queen removed from the constitution? Did we give permission for our prime minister to ignore the oath under the schedule?
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 100 Nor abridge right to use water The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation
What can I say, do you feel this section has been upheld or even read by our governments?
So lets see what the Australia Act actually attempted to/or achieved
AUSTRALIA ACT 1986- SECT 5
Commonwealth Constitution, Constitution Act and Statute of Westminster not affected
Sections 2 and 3(2) above:(a) are subject to the Commonwealth of Australia Constitution Act and to the Constitution of the Commonwealth; and
(b) do not operate so as to give any force or effect to a provision of an Act of the Parliament of a State that would repeal, amend or be repugnant to this Act, the Commonwealth of Australia Constitution Act, the Constitution of the Commonwealth or the Statute of Westminster 1931 as amended and in force from time to time.
It appears parliament misunderstood the application of the Australia act 1886, because the act does not impede but rather support the protections and separation of powers that accompanied its proclamation.
The mere fact the Australia Act took away the powers of the queen under the constitution, did not with its application take away any of the people’s rights under the constitution, interestingly the constitution still retains many references to the queen seemingly because the people never allowed the constitution to be amended.
The debate surrounding the introduction of the Australia Act was based around the removal of the queens powers found in the constitution, but did not go as far as affecting the schedule, or in fact the oath, and in respect an Act that changes the substance of the constitution, ought to have been approved by the people as part and parcel of the protections the constitution awarded in any respect.
With our a clear referenda supporting the Australia Act, it seems debatable such an Act is valid without consent by referenda, but in any respect its affects do not and never could support the current actions of state, federal of local governments.
As a sovereign nation, we have never had to stand up for our rights, other than the eureka stockade where many stood proud for our right to vote, so it is time now to stand behind our constitution, to demand its protections are upheld, and to look for an educated way forward in respect of our rights and liberties.
My position is we need to make our rights and liberty’s known, a new bill of rights attached to our constitution, which spell out in lay terms exactly what protections we have, to ensure our judiciary and our representatives also know the limits of their ability's.
Our rights must be taught in our schools, and be easily understandable for all Australians, and ours are not, in fact the only reason they are being taken away, is that most Australians have no idea they even exist, and while this situation continues, parliament and our judiciary will continue to believe they are the law, not employed as they are to uphold and protect the law.
Mark M Aldridge
Independent candidate for South Australia
08 82847482 / 0403379500
THE BELOW PDF IS A MORE COMPREHENSIVE ARTICLE COMPLIMENTS OF SUE MAYNE
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd ("Engineers' case")  HCA 54; (1920) 28 CLR 129 (31 August 1920) In the words of Knox C.J., Isaacs, Higgins, Gavan Duffy, Rich and Starke JJ. delivered by Osaacs j; When the people of Australia, to use the words of the Constitution itself, "united in a Federal Commonwealth," they took power to control by ordinary constitutional means any attempt on the part of the national Parliament to misuse its powers. If it be conceivable that the representatives of the people of Australia as a whole would ever proceed to use their national powers to injure the people of Australia considered sectionally, it is certainly within the power of the people themselves to resent and reverse what may be done. No protection of this Court in such a case is necessary or proper. Therefore, the doctrine of political necessity, as means of interpretation, is indefensible on any ground. The one clear line of judicial inquiry as to the meaning of the Constitution must be to read it naturally in the light of the circumstances in which it was made, with knowledge of the combined fabric of the common law, and the statute law which preceded it, and then lucet ipsa per se.
Constitution of Australia, The Constitution, Mark Aldridge Independent, Constitution Act or 1901, High court, bill of rights, Australia Act, Robert Menzies, Laws of Australia, rights of Australians,