constitutional lessons

8/14/2019 Constitutional Lessons

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Chapter 000X Page 1INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD

A 1 st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, by fax 0011-

61-3-94577209 or E-mail [email protected] See also www.schorel-hlavka.com

Chapter constitutional lessons* Gerrit, are you teaching constitutional issues?

.

**#** INSPECTOR-RIKATI, well, take your pick you can learn from my writings or go along

with the crap others present you with.

.* What about the federal governments Constitutional Policy Unit? Surely they would know

what is applicable?

.

**#** Well if they knew then why is the Senate voting o0n Bills that were already defeated at the

conclusion of the session the Bills were introduced? They do not seem to understand andcomprehend that no matter what Standing Orders of the Senate may be in place the Standing orders

cannot override the legal principles embedded in the constitution by the Framers of the constitution!

As such, where the Framers of the Constitution made clear that any bill not passed in the same

session it was submitted to the Senate then regardless if there was a vote or not it is deemed to have

been lost..

* You mean when the Senate votes to defer the voting to a next session it in fact cannot do so and

the Bill is deemed defeated by the end of the session if there was no vote on it or the vote wasdefeating the Bill?

.**#** Correct. But you find Senators dont know this and that just underlines that while they get a

lot of money being paid to represent us they fail to do so. Hence, it is better to start from basics

about constitutional matters.

.

.

.

.

.

Lets try the first question;There are three kinds of level of legislations that can be applicable to Australians and I like you tolist them for me but will give one as to give a hint what I seek as an answer, albeit not stated in any

particular order;

1.

2.

3. Legislation enacted by the federal Parliament of the Commonwealth of Australia.

* I know this. The Federal Parliament of the Commonwealth of Australia and there under the State

parliament and there under the local Government being municipal councils/shire councils.

.

**#** Actually, prior to Federation, where we need to start of with it was as follows;..

CHART 1.

******************

* **British Parliament*

* *******************

Colonial Constitutions(LEGISLATIVE POWERS X,Y & Z)

I I I I I I


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---------------------------- I I I I I I--------------------------II I I I I I

I I -------- I I I I-------------I II I I I I I

********************** ******** ******* ***** ************ ************ * * * * * * * * * * *

*SA+ Northern Territory* *Victoria* *NSW * *WA* *Queensland* *Tasmania** P * * C * * C * * C * * C * * C *

********************** ********* ******* ***** ************ ***********

.Note P stands for Province and C stands for Colony.

.

Before I set out the rest lets first see how you answer the second question..

.

.

.

.The second question; Can you set out which, if any of the three aforementioned legislative

provisions has superior over the others? Which are exclusive powers and which are not, etc. Do

provide additional details if needed to explain your answers and/or meanings. If you listed oneparticular legislative power as superior then set out when this applied, if not in all circumstances,

and when it then doesnt apply?.

* Well that is simple, the British Parliament because of the constitution and then the

Commonwealth of Australia and under that is the States.

.

**#** That is incorrect.Lets build now upon how it was at the time of federation

.

CHART 2

.****************** Commonwealth Constitution* * (LEGISLATIVE POWERS Z)

*British Parliament*-----------------------------------------I* * I

****************** IColonial/State Constitutions I

(LEGISLATIVE POWERS X & Y) II I I I I I I

I I I I I I **************************I I I I I I * *

I I I I I I *Commonwealth of Australia*I I I I I I * PU *

I I I I I I **************************I I I I I I I

I I I I I I II I I I I I I

I I I I I I II I I I I I I

---------------------------- I I I I I I--------------------------I II I I I I I I

I I -------- I I I I-------------I I II I I I I I I

********************** ******** ******* ***** ************ *********** I* * * * * * * * * * * * I


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*SA+ Northern Territory* *Victoria* *NSW * *WA* *Queensland* *Tasmania* I* S * * S * * S * * S * * S * * S * I

********************** ********* ******* ***** ************ *********** II I I I I I I

I I I I I I -------------------------------II I I I I --------------------------------------------------I

I I I I -----------------------------------------------------------------II I I ---------------------------------------------------------------------------I

I I------------------------------------------------------------------------------------------I

I ------------------------------------------------------------------------------------------------------I

.

Note S stands for State and PU stands for Political Union

.

* Why did you change the colours of the names?

.**#** This indicates a change of legislative powers. Green means that this is the powers

exercised by the Commonwealth, a POLITICAL UNION for an on behalf of all States as

provided for tin the federal constitution (Commonwealth of Australia Constitution Act 1900 (UK))

whereas Orange means that each State had left the residue legislative powers they can exercise forso far the Commonwealth has not legislated within its listed powers in the constitution andotherwise.

.

This means that the states legislative powers remained to be what the Commonwealth wasnt given

in the first place and other legislative powers the Commonwealth was given within Section 51 but

did not legislate upon then the States could still legislate upon this until such time that theCommonwealth commenced to legislate upon it. The exemption to the rule is taxation, as each State

was entitled to legislate upon taxation however only upon the areas the Commonwealth had not so

far legislated upon. As such if the Commonwealth were to legislate a land tax then the States no

longer can do so.

.* Doesnt the Commonwealth have powers to overrule the States?

.

**#** Not really, as while this is so perceived there is no such need.

.

* But what about Section 109 then?

.

**#** That is different. The states and the Commonwealth at time of federation had concurrent

legislative powers, meaning that either could legislate upon a subject, but again once theCommonwealth commenced to legislate upon a certain subject then the States no longer could

legislate on that issue.

QUOTE

109 Inconsistency of lawsWhen a law of a State is inconsistent with a law of the

Commonwealth, the latter shall prevail, and the former shall, to theextent of the inconsistency, be invalid.

END QUOTEThen having already state legislation in force it means that if the Commonwealth has commenced to

legislate and the State legislation already existing is in conflict then the Commonwealth legislation


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prevails. As such only upon the legislative powers that were given to the Commonwealth does thisapply. Being it direct legislative powers or incidental legislative powers.

.

Therefore if the Commonwealth legislated as to residential planning in a state then it has no legal

force and cannot override State legislation because the Commonwealth was not given such

legislative powers in the constitution..

Hansard 22-9-1897 Constitution Convention DebatesQUOTE

The Hon. R.E. O'CONNOR (New South Wales)[3.18]: The moment the commonwealth

exercises the power, the states must retire from that field of legislation.END QUOTE

.

QUOTE

The Hon. R.E. O'CONNOR (New South Wales)[3.18]: We ought to be careful not to load

the commonwealth with any more duties than are absolutely necessary. Although it is quite

true that this power is permissive, you will always find that if once power is given to the

commonwealth to legislate on a particular question, there will be continual pressure

brought to bear on the commonwealth to exercise that power. The moment thecommonwealth exercises the power, the states must retire from that field of legislation.

END QUOTE.


Mr. OCONNOR.-Directly it is exercised it becomes an exclusive power, and there is no

doubt that it will be exercised.QUOTE

.

After Federation the ACT (Australia Capital Territory became available to the Commonwealth of

Australia as seat of the Federal Government;.

CHART 3.

****************** Commonwealth Constitution

* * (LEGISLATIVE POWERS Z)*British Parliament*-----------------------------------------I

* * I****************** I

Colonial/State Constitutions I(LEGISLATIVE POWERS X & Y) I

I I I I I I II I I I I I **************************

I I I I I I * *I I I I I I *Commonwealth of Australia*

I I I I I I * PU *I I I I I I **************************

I I I I I I I II I I I I I ****** I

I I I I I I * * II I I I I I *ACT* I

I I I I I I * T * I---------------------------- I I I I I I--------------------------I ****** I

I I I I I I II I -------- I I I I-------------I I I


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I I I I I I I********************** ******** ******* ***** ************ *********** I

* * * * * * * * * * * * I*SA+ Northern Territory* *Victoria* *NSW * *WA* *Queensland* *Tasmania* I

* S * * S * * S * * S * * S * * S * I********************** ********* ******* ***** ************ *********** I

I I I I I I II I I I I I -------------------------------I

I I I I I --------------------------------------------------I

I I I I -----------------------------------------------------------------II I I ---------------------------------------------------------------------------II I------------------------------------------------------------------------------------------I

I ------------------------------------------------------------------------------------------------------I

.

Note S stands for State and PU stands for Political Union

Thereafter, South Australia handed over to the Commonwealth of Australia the Northern Territory.

.

CHART 4





I I I I I I **************************I I I I I I * *

I I I I I I *Commonwealth of Australia*I I I I I I * PU *

I I I I I I **************************I I I I I I I I I

I I I I I I ****** ***** II I I I I I * * * * I

I I I I I I *ACT* *NT* II I I I I I * T * * T * I

I---------------------- I I I I I I-------------------------I ****** ***** II I I I I I I

I I -------- I I I I-------------I I II I I I I I I

***** ******** ******* ***** ************ *********** I* * * * * * * * * * * * I

*SA* *Victoria * *NSW * *WA* *Queensland* *Tasmania* I* S * * S * * S * * S * * S * * S * I

***** ******** ******* ***** ************ *********** II I I I I I I

I I I I I I -------------------------------II I I I I --------------------------------------------------I

I I I I -----------------------------------------------------------------II I I ---------------------------------------------------------------------------I

I I------------------------------------------------------------------------------------------II ------------------------------------------------------------------------------------------------------I


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.Note S stands for State, PU stands for Political Union and T stands for Territory.

.

* What about new territories or States?

.

**#** New territories are shown as OTHER and when it comes to new states then pending whatthe Federal Parliament provides for as to representation in the parliament, etc, they will basically be

like existing States, just not being original states.

.

CHART 5





I I I I I I **************************

I I I I I I * *I I I I I I *Commonwealth of Australia*I I I I I I * PU *

I I I I I I **************************I I I I I I I I I

I I I I I I ********* ****** ***** II I I I I I * * * * * * I

I I I I I I * OTHER* *ACT* *NT* II I I I I I ********** * T * * T* I

I---- ----------------- I I I I I I--------------------------I ****** ***** II I I I I I I

I I------------------ I I I -------------I I II I I I I I I

***** ******** ******* ***** ************ *********** I* * * * * * * * * * * * I

*SA* *Victoria* *NSW * *WA* *Queensland* *Tasmania* I* S * * S * * S * * S * * S * * S * I

***** ******** ******* ***** ************ *********** II I I I I I I

I I I I I I ----------------------------------II I I I I ------------------------------------- ---------------- I

I I I I --------------------------------------------------------------------II I I ------------------------------------------------------------------------------I

I I-------------------------------------------------------------------------------------------II -------------------------------------------------------------------------------------------------------I

.

* You indicate that the British Parliament still has its legislative powers in regard of the states

(former colonies) and the POLITICAL UNION called the Commonwealth of Australia, is that

correct?

.**#** It is a British constitution and as such it remains to be under British law. But there is more to

it. The Commonwealth of Australia Constitution Act 1900 (UK) is a British Act and as such

considering the decision ofAggregate Industries UK Ltd., R (on the application of) v English

Nature and & Anor [2002] EWHC 908 (Admin) (24th April, 2002) and Judgments - Mark

(Respondent) v. Mark (Appellant), OPINIONS, OF THE LORDS OF APPEAL for judgment INTHE CAUSE, SESSION 2005-06 [2005] UKHL 42 on appeal from: [2003] EWCA Civ 168


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It appears that the The European Convention for the protection of Human Rights andFundamental Freedoms (the ECHR) albeit not overriding constitutional law, is complimentary

to British (constitution) law, as the Commonwealth of Australia Constitution Act 1900 (UK) is.

The States, are therefore subject to Commonwealth of Australia legislative provisions for so far

they, the States, mutually as a POLITICAL UNION being the Commonwealth of Australia have

legislated as such, albeit a State can refuse to enforce Commonwealth law through its legal systemwhere it is held that a Commonwealth of Australia legislative provision is undesirable and/or the

legislation exceeds constitutional powers.

.

CHART 6

.********************************************************************

* *

*MEMBER STATES OF THE EUROPEAN UNION (INCLUDING THE UK)*

* *

********************************************************************I

I

II********************

* **EUROPEAN UNION*

* **********************

I I

I--------------------------------------------I II I

****************** Commonwealth Constitution I* * (LEGISLATIVE POWERS Z) I

*British Parliament*--------------------------------- --I I

* * I I****************** I I----------------------I

Colonial/State Constitutions I I I

(LEGISLATIVE POWERS X & Y) I I II I I I I I I I I

I I I I I I I I II I I I I I I I I

I I I I I I I I II I I I I I ************************** I

I I I I I I * * II I I I I I *Commonwealth of Australia* I

I I I I I I * PU * II I I I I I ************************** I

I I I I I I I I I II I I I I I ********* ****** ***** I I

I I I I I I * * * * * * I II I I I I I * OTHER* *ACT* *NT* I I

I I I I I I ********** * T * * T* I II-------------------- I I I I I I--------------------------I ****** ***** I I

I I I I I I I II I --------I I I I-------------I I I I

I I I I I I I I***** ******** ******* ***** ************ *********** I I

* * * * * * * * * * * * I I*SA* *Victoria* *NSW * *WA* *Queensland* *Tasmania * I I


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* S * * S * * S * * S * * S * * S * I I***** ******** ******* ***** ************ *********** I I

I I I I I I I II I I I I I ----------------------------------I-----------I

I I I I I ---- -------------------------------------------------I-----------II I I I --------------------------------------------------------------------I -----------I

I I I ------------------------------------------------------------------------------I-----------II I--------------------------------------------------------------------------------------------I -----------I

I --------------------------------------------------------------------------------------------------------I-----------I

.The brown colour of the EUROPEAN UNION indicates that any legislation provision enacted

by the EUROPEAN UNION is also legally applicable to the Commonwealth of Australia, any

State and/or Territory provided it doesnt conflict with constitutional powers provided for in theCommonwealth of Australia Constitution Act 1900 (UK). As such, while the EUROPEAN

UNION can bind ordinary English legislation to any laws the EUROPEAN UNION declares

within its constitutional powers it does not mean that the same is applicable to the Commonwealth

of Australia. This is because weight and measures for example was handed over by the British to

the EUROPEAN UNION but long after it already had handed over to the Commonwealth ofAustralia its right for this. Because the Constitution is a constitution act the EUROPEAN

UNION cannot for this override and/or interfere with the Commonwealth of Australia

Constitution Act 1900 (UK) legislative powers. It can however provide complimentary powers andthis means that any legislation of the EUROPEAN UNION can be applied within the

Commonwealth of Australia provided it is not attempting to override Commonwealth legislation..

It does however mean that the States cannot refer legislative powers to the Commonwealth as to

avoid or circumvent the application, such as the Human rights provisions, because where any

reference of legislative powers occur after the EUROPEAN UNION already legislated upon a

subject that is applicable to the States/Territories then this cannot be avoided. As such, lookingupon EUROPEAN UNION legislation one must then consider when the legislation was put in

place and was this before or after a State referred its legislative powers to the commonwealth. If the

EUROPEAN UNION legislated prior to the State referring its legislative powers (within section

51(xxxvii) then the EUROPEAN UNION legislation remains applicable.

.


Sir JOHN DOWNER.-Of course they do not. We have many statutes here giving remedies

to the subject which, although assented to by the Queen, are by no means in force in England.

We are here establishing a Constitution truly under the Crown, but in many respects vastlydifferent from the English Constitution. I think this principle is a very proper one. It ought to

be affirmed, and put in the Constitution. It is not a matter of procedure. It is the establishment

of a right which will not exist unless the words are put in. If you want to give the right, you

have to put it in. If you leave it out, you negative the right. If you only give the Parliamentthe power to establish the right, then you are, to some extent, negativing the right. I donot know that it is worth while to have much discussion about the question-Can the

Parliament do this without express words? I quite agree with Mr. Barton that it could not.

Mr. ISAACS.-You think Parliament could not?

Sir JOHN DOWNER.-I think it has not the power.

Mr. ISAACS.-How is it done in Canada? How is it done elsewhere?


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Sir JOHN FORREST.-Put it in the powers of the Parliament.

Sir JOHN DOWNER.-We spend time enough in discussing things here, and when everyone is agreed that this clause is not to be adopted in the form in which it is printed, but is only

to be a power of the Parliament, it is not worth while to discuss the question of whether it is

[start page 1665] absolutely necessary to put in the words. Where there is a wide difference of

opinion, it would be safer to do it. I agree with Mr. Barton that there is no power, because sub-

section (37) of clause 52 reads-

Any matters necessary for or incidental to the carrying into execution of the foregoing

powers, or of any other powers vested by this Constitution in the Parliament or Executive

Government of the Commonwealth, or in any department or officer thereof.

I venture to say that these are not necessary or incidental to the execution of any powers. The

Commonwealth will come into existence under this Constitution plus English law, one of

whose principles is that the Queen can do no wrong. That is the foundation on which theConstitution is established.

END QUOTE

.


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

right which a person has as a British subject-the right of personal liberty and protection

under the laws-is secured by being a citizen of the states. It must be recollected that the

ordinary rights of liberty and protection by the laws are not among the subjects confided

to the Commonwealth. The administration of [start page 1766] the laws regardingproperty and personal liberty is still left with the states. We do not propose to interfere

with them in this Constitution. We leave that amongst the reserved powers of the states, and,

therefore, having done nothing to make insecure the rights of property and the rights of libertywhich at present exist in the states, and having also said that the political rights exercisable in

the states are to be exercisable also in the Commonwealth in the election of representatives,we have done all that is necessary. It is better to rest there than to plunge ourselves into what

may be a sea of difficulties. We do not know to what extent a power like this may be

exercised, and we should pause before we take any such leap in the dark.END QUOTE

Again;

QUOTE

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

right which a person has as a British subject-the right of personal liberty and protection

under the laws-is secured by being a citizen of the states. It must be recollected that theordinary rights of liberty and protection by the laws are not among the subjects

confided to the Commonwealth. The administration of [start page 1766] the lawsregarding property and personal liberty is still left with the states. We do not propose to

interfere with them in this ConstitutionEND QUOTE

.

Hansard 24-1-1898 Constitution Convention Debates

QUOTE

Mr. OCONNOR.-Yes. I am not sure that the clause which the honorable member wishes toamend does not cut down that power, if it has any effect at all. We were willing to give this

concession, and we have done it. From the comments made upon this matter both in the


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Convention and outside, I do not think that the full extent of the rights given under this powerto regulate commerce are appreciated. Fortunately, we are not without authorities upon the

question. There have been numberless decisions in America as to the rights which are given

by the power to regulate commerce, and, inasmuch as the American Constitution has been

interpreted upon principles of British law applied by the great jurists of America, it is only

reasonable to suppose that our Judges in interpreting our Constitution will be guided verymuch by the same principles.

END QUOTE

.


QUOTE Mr. GORDON.-If irrigation is a national necessity and a national problem-if it is now a matter of regret that

the American Government did not take over the control of the public streams of America-

would not the same regret and the same conditions exist here? Irrigation will be ten times

more a national necessity here than it is in America, and the regret will be ten times greater if

we miss this chance of settling the question, and the Constitution does not provide for thecontrol of these water channels. And, after all, what are we asking for? We are only asking for

the right that every riparian proprietor enjoys under British law-the right that the man above

him shall neither injure the quality nor diminish the flow of any stream designed for theirmutual benefit and enjoyment. That is a right that is founded deep in natural justice. It cannot

be said that we are asking for anything extraordinary or making extreme demands upon ourfollow colonists when we simply seek for that right which every riparian proprietor under

British law enjoys. The tendency of modern legislation is to go even further than the common

law doctrine in declaring that there shall be no exclusive property in running streams.

END QUOTE

.Hansard 8-2-1898 Constitutional Convention Debates

QUOTE

Mr. OCONNOR.-I do not think so. We are making a Constitution which is to endure,

practically speaking, for all time. We do not know when some wave of popular feelingmay lead a majority in the Parliament of a state to commit an injustice by passing a lawthat would deprive citizens of life, liberty, or property without due process of law. If no

state does anything of the kind there will be no harm in this provision, but it is only right that

this protection should be given to every citizen of the Commonwealth.

END QUOTE

AndQUOTE

Mr. OCONNOR.-No, it would not; and, as an honorable member reminds me, there is a

decision on the point. All that is intended is that there shall be some process of law by which

the parties accused must be heard.

Mr. HIGGINS.-Both sides heard.

Mr. OCONNOR.-Yes; and the process of law within that principle may be [start page

689] anything the state thinks fit. This provision simply assures that there shall be some

form by which a person accused will have an opportunity of stating his case before being

deprived of his liberty. Is not that a first principle in criminal law now? I cannot

understand any one objecting to this proposal.


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Dr. COCKBURN-Very necessary in a savage race.

Mr. OCONNOR.-With reference to the meaning of the term due process of law, there isin Baker's Annotated Notes on the Constitution of the United States, page 215, this statement-

Due process of law does not imply that all trials in the state courts affecting the property of

persons must be by jury. The requirement is met if the trial be in accordance with the

settled course of judicial proceedings, and this is regulated by the law of the state.

If the state law provides that there shall be a due hearing given to the rights of the parties-

Mr. BARTON.-And a judicial determination.

Mr. OCONNOR.-Yes, and a judicial determination-that is all that is necessary.

END QUOTE

And

QUOTEMr. OCONNOR.-I think that the reason of the proposal is obvious. So long as each

state has to do only with its own citizens it may make what laws it thinks fit, but we arecreating now a new and a larger citizenship. We are giving new rights of citizenship to

the whole of the citizens of the Commonwealth, and we should take care that no man is

deprived of life, liberty, or property, except by due process of law.END QUOTE

Al-Kateb v Godwin [2004] HCA 37 (6 August 2004)

QUOTE

157.The three cases that I have mentioned[185] illustrate singly, and even more forcefully incombination, the resistance of the judges of the common law, since early times and until the

present age, to the notion of unlimited executive power to deprive individuals of liberty. In

another important and recent case which can now be added to those that I have cited,

Rumsfeld v Padilla[186], Stevens J (Souter, Ginsburg and Breyer JJ joining)explained[187]:

"At stake in this case is nothing less than the

essence of a free society. Even more important

than the method of selecting the people's rulers and

their successors is the character of the constraints

imposed on the Executive by the rule of law.Unconstrained Executive detention for the purpose

of investigating and preventing subversive activity

is the hallmark of the Star Chamber.[188]"END QUOTE

.

While we have now that the Commonwealth detains unconstitutionally refugees without being

formally charged and without therefore formally being accused within purported


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ADMINISTRATIVE DETENTION it must be clear that the Framers of the Constitutionmaintained that the federation would be maintained as to The Commonwealth will come into

existence under this Constitution plus English law,

.

England and Wales High Court (Administrative Court) Decisions

Aggregate Industries UK Ltd ., R (on the application of) v English

Nature and & Anor [2002] EWHC 908 (Admin) (24th April, 2002)

Neutral Citation Number: [2002] EWHC 908 (Admin)QUOTE

28. (5) The European Convention for the protection of Human Rights and Fundamental Freedoms (the

ECHR). The relevant provisions of the ECHR are as follows.

Article 6

Right to a fair trial

1. In the determination of his civil rights and obligationseveryone is entitled to a fair and

public hearing within a reasonable time by an independent and impartial tribunal establishedby law

PART 11

THE FIRST PROTOCOL

Article 1

Protection of Property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one

shall be deprived of his possessions except in the public interest and subject to the conditionsprovided for by law and by the general principles of international law.

END QUOTEAnd

QUOTE

23. Article 18(1) requires the Member States to have taken measures to implement the Birds Directive by 2nd April

1981. However, the precise manner in which SPAs are to provide Annex I species with the protection requiredby the Directive is entirely a matter for the discretion of individual Member States. This is in accordance with

Article 24(9) of the EC Treaty, which provides as follows:

A directive shall be binding, as to the result to be achieved, upon each

Member State to which it is addressed, but shall leave to the national authorities the choiceof form and methods.

24. The classification of SPAs is a matter for the Secretary of State, not English Nature. However, EnglishNature is the Governments adviser for these purposes and is responsible for identifying sites which qualify

for SPA designation and for dealing with any consultation: see paragraphs 6.4 of Dr Andrew Browns witnessstatement, as follows:

END QUOTE

And

QUOTE

27. (4) The Human Rights Act 1998 (the HRA 1998). So far as material, the relevant provisions of the HRA1998 are as follows.


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1. The Convention Rights

(1) In this Act the Convention rights means the rights and fundamental

freedoms set out in

(a) Articles 2 to 12 and 14 of the Convention,

(b) Articles 1 to 3 of the First Protocol,

as read with Articles 16 to 18 of the Convention

3. Interpretation of legislation

(1) So far as it is possible to do so, primary legislation must be read andgiven effect in a way which is compatible with the Convention rights.

4. Declaration of incompatibility

(1) Subsection (2) applies in any proceedings in which a court determineswhether a provision of primary legislation is compatible with a Convention

right.

(2) If the court is satisfied that the provision is incompatible with a

Convention right, it may make a declaration of that incompatibility.

5. Right of Crown to intervene

(1) Where a court is considering whether to make a declaration of

incompatibility, the Crown is entitled to notice in accordance with the rulesof court.

(2) In any case to which subsection (1) applies

(a) a Minister of the Crown

is entitled to be joined as a party to the proceedings.

6. Acts of public authorities

(1) It is unlawful for a public authority to act in a way which isincompatible with a Convention right.

(2) Subsection (1) does not apply to an act if

(a) as the result of one or more provisions of primary

legislation, the authority could not have acteddifferently; or

(b) in the case of one or more provisions of, or madeunder, primary legislation which cannot be read or given

effect in a way which is compatible with the Conventionrights, the authority was acting so as to give effect to or

enforce those provisions.


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7. Proceedings

(1) A person who claims that a public authority has acted (or proposes toact) in a way which is made unlawful by section 6(1) may

(a) bring proceedings against the authority under this Actin the appropriate court or tribunal, or

(b) rely on the Convention right or rights concerned inany legal proceedings

but only if he is (or would be ) a victim of the unlawful act.

8. Judicial remedies

(1) In relation to any act (or proposed act) of a public authority which the

court finds is (or would be) unlawful, it may grant such relief or remedy, ormake such order, within its powers as it considers just and appropriate.

28. (5) The European Convention for the protection of Human Rights and Fundamental Freedoms (the

ECHR). The relevant provisions of the ECHR are as follows.

Article 6

Right to a fair trial

1. In the determination of his civil rights and obligationseveryone is entitled to a fair and

public hearing within a reasonable time by an independent and impartial tribunal establishedby law

PART 11

THE FIRST PROTOCOL

Article 1

Protection of Property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one

shall be deprived of his possessions except in the public interest and subject to the conditionsprovided for by law and by the general principles of international law.

END QUOTE

AndQUOTE

57. That such is the case is, in my view, clear from the overall approach of their Lordships in Alconbury to the

various European cases to which reference is made in their speeches and from the context of such words inpassages such as the following in the speech of Lord Clyde, at paragraph 149:

The opening words of article 6(1) are: In the determination of his civil rights andobligations or of any criminal charge against him Here again a broad interpretation is

called for. The decision need not formally be a decision on the rights. Article 6 will stillapply if the effect of the decision is directly to affect civil rights and obligations. In Le

Compte, Van Leuven and De Meyere 4 EHRR 1, paragraph 46 the court observed: it mustbe shown that the contestation (dispute) related to civil rights and obligations, in other


15/31


16/31





A constitution cannot be amended by an ordinary act! As such, any ordinary British legislation thatwere to conflict with the Federal constitution would be without legal force as the constitution is

beyond interference other then that it can be amended by a Section 128 referendum..

.

The constitution is where the legislative powers originate from.

.

.

Hansard 8-2-1898 Constitution Convention DebatesQUOTE Mr. BARTON.-

Under a Constitution like this, the withholding of a power from the

Commonwealth is a prohibition against the exercise of such a power..


Mr. HIGGINS.-The particular danger is this: That we do not want to give to

the Commonwealth powers which ought to be left to the states. The point is that

we are not going to make the Commonwealth a kind of social and religious power

over us.

END QUOTE.

HANSARD 1-3-1898 Constitution Convention DebatesQUOTE Mr. GORDON.-

The court may say-"It is a good law, but as it technically infringes onthe Constitution we will have to wipe it out."

END QUOTE

AndQUOTE Mr. BARTON.-

The position with regard to this Constitution is that it has no legislativepower, except that which is actually given to it in express terms or which is

necessary or incidental to a power given.END QUOTE.


start page 1020] I think that we ought to be satisfied on these points, and satisfied that if

we leave the clause as it now stands there will, at any rate, be some proviso inserted

which will safeguard the states in the carrying out of any of their state laws over whichthe states are to be supreme even under federation.

END QUOTE

.

We must keep in mind the quotation;QUOTE Mr. BARTON.-

The position with regard to this Constitution is that it has no legislativepower, except that which is actually given to it in express terms or which is

necessary or incidental to a power given.

END QUOTE.

What this means is that the commonwealth, for example, has no constitutional powers as to water

but does have legislative powers as an incidental power when it comes to preserve the navigation or

rivers. As such, its incidental legislative powers is very limited to stricktly relating to the


17/31





maintenance of navigation of rivers. Therefore environment can be included for this part also albeitif the intent of the legislation is not to maintain the navigation of rivers then there is no legislative

powers.

.

Therefore Section 100 of the constitution limits any legislative powers as to water in that regard. It

means that water rights purchase is not a Commonwealth power. What the Commonwealth can dohowever is to limit the State usage of river water and then it is a State legislative power as to how

the water will be used and by whom.

It should be understood that WATER is not owned by anyone once it leaves the property upon

which it fell. You are entitled to harness all water that falls onto your roof but once it leaves your

property it is owned by no one. States cannot sell water because they do not own the water. TheFramers of the Constitution made clear that riparian rights applies (as in Europe) and the High

Court of Australia would have the judicial powers to deal with any dispute between the States as to

water usage and availability.. Despite of this you find South Australia ignored to pursue its rights in

that regard, and my past correspondence to the SA Government underlines they are aware of their

rights in that regard..

As such, while the superior legislative powers of the commonwealth to regulate the flow used from

rivers for so far it is to maintain the river level for navigation it is another thing to overtake anywater legislation as it is not a incidental power to navigation required for trade and commerce.

.The States obviously have no legislative powers as to the maintenance of navigational rivers

because it is a Commonwealth legislative power, albeit incidental, for the maintenance of

navigation for trade and commerce along rivers, but the States do have legislative powers as to non

navigational rivers.

The incidental legislative powers issue will be further canvassed at a later lesson..

* Why did you mark State legislative powers as X and Y?

.

**#** Well, the States have legislative powers which remains to be within their domain and thenyou have legislative powers which they have or in time will refer to the Commonwealth and whenit becomes so then the legislative powers of the Commonwealth will be expanded by this. But this

needs further scrutiny when we deal with the question; Who can amend the state and/or federal

constitution?

.

* I am puzzled as your first question was about the three Parliaments that can legislate but on yourchart you have the EUROPEAN UNION also and you seem to have forgotten municipal and shire

councils who also enact legislation? Can you explain this?

.

**#** The EUROPEAN UNION doesnt specifically legislate for the Commonwealth of Australia

but can only legislate for so fat it has been provided with such powers by the United Kingdom.Then when it does so legislate then it legislation can only be used complimentary to and not in

conflict of the constitution.

.

* Can you please give me an example?

.**#** Well, lets have a look at Subsection 51(xxvi) of the constitution which states

QUOTEthe people of any race, other than the aboriginal race in any

State, for whom it is deemed necessary to make special laws;


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END QUOTE.

Now the Framers of the Constitution made clear that no international law or treaty could override

this provision. As such neither the EUROPEAN UNION or the UNITED NATIONS can override

this. The Commonwealth of Australia therefore is a racist POLITICAL UNION and all the States

and Territories by this also. Now both the UNITED NATIONS and the EUROPEAN UNION asfar as I am aware of oppose racial discrimination but they cannot overrule the Constitution! Neither

can the EUROPEAN UNION demand that the British Parliament amend the Commonwealth of

Australia Constitution Act 1900(UK) because its legislation can only apply to ordinary legislation

and not constitutional legislation that already exist. However, having stated so it would apply to any

new or amended constitutional legislation the British Parliament were to enact, this as the Britishparliament no longer can legislate as it likes because as a signature of the EUROPEAN UNION

constitution it is now bound by its legislations

.

* Are you saying that this would apply to say British legislation governing the Commonwealth of

Australia also?.

**#** For so far it doesnt conflict with existing constitutional provisions it would be, yes.

.* And what about Local governments such as municipal councils and shire councils?

.**#** Before I explain this further let me put the next question to you as then you will get the

answer to this also.

.

.

.

.

Question 3: Who can amend the state and/or federal constitution?

.

* The State or Federal Parliament obviously can because they are amending the constitution everytime. If not by referendum then otherwise as to change how the constitution apply, dont they?.

**#** Let me repeat what I have set out previously in published books in the INSPECTOR-

RIKATI series on certain constitutional and other legal issues;;

QUOTE Chapter 361

Chapter 361 Local Government.

* Gerrit, another issue you have addressed, didnt you?

.

**#** INSPECTOR-RIKATI, indeed I did see below.

.

Jeff McMullen, ABC, DIFFERENCE OF OPINION

Ph. 1800 502 404

Fax 02 8333 3344


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.

Re; levels of Government

.

Jeff McMullan.

FEDERAL GOVERNMENT/CENTRALISED GOVERNMENT

.Versus

.STATE GOVERNMENT/LOCAL GOVERNMENT

.

Versus.

MUNICIPAL COUNILS/LOCAL GOVERNMENT

.While in todays language when we refer to LOCAL GOVERNMENT we refer to LOCAL

COUNCILS rather then MUNICIPAL COUNCILS constitutionally (considering theCommonwealth of Australia Constitution Act 1900 (UK) we have a CENTRALISED

GOVERNMENT with a FEDERAL PARLIAMENT and a LOCAL GOVERNMENT

with a STATE PARLIAMENT.

When one refers to the Federation and State Governments then LOCAL GOVERNMENT refers

to State Governments. When we refer to internal State matters then LOCAL GOVERNMENT isMUNICIPAL COUNCILS being LOCAL GOVERNMENTS.

.

When dealing with the TWO levels of Governments, being Federal and State Governments, then

the de facto third level of Government MUNICIPAL COUNCILS is not to be taken as a level ofGovernment..

It must be clear that the Commonwealth of Australia has no constitutional powers to alter State

legislative powers/boundaries, etc at its own will. However, States can alter MUNICIPAL

COUNCILS boundaries as much as it likes. No referendum is needed for this.

Local councils are not true Governments but delegated bodies that act as a Government under theauthority of a State Government. However, State Governments do not act under the Authority of the

Federal Government, rather that the Federal Government acts under the authority of State

Governments.

The Federal Government cannot take anything from the States that the States doesnt want to give

on legislative powers, whereas the States (subject to a Section 123 of the Constitution Statereferendum) can and it desire hand over whatever legislative powers it has, to the Federal

Government.

Take for example the issue of CITIZENSHIP. Neither the Commonwealth of Australia or

MUNICIPAL COUNCILS have legislative powers as to declare/define CITIZENSHIP. It isand remains to be a constitutional powers reserved for the State Parliaments. See also Hansard 2-3-

1898 Constitution Convention Debates. Hence the Australian Citizenship Act 1948 for so far it

purports to define/declare CITIZENSHIP is ULTRA VIRES.


20/31





To abolish State governments would mean that such powers would have to be handed over to eithera Federal Parliament or to MUNICIPAL COUNCILS.

Obviously MUNICIPAL COUNCILS could not deal appropriately with this and a Federal

government would not be able to deal with this appropriately. Why you may ask? Because

CITIZENSHIP relates to a persons POLITICAL STANDING. To hand CITIZENSHIP

over to the Commonwealth of Australia would be basically to vandalise the very protections buildin the Commonwealth of Australia Constitution Act 1900 (UK).

This correspondence cannot set out in an elaborate manner all that is relevant to this, but those

interested can always read my various books published in the INSPECTOR-RIKATI series.

The usage of the term local government during the Constitution Convention Debates were in

general referring to State Governments, below some examples.

WE EITHER HAVE A CONSTITUTION OR WE DONT!

The Federal Government cannot have it both ways, argue it has constitutional rights to implement

certain legislation and on the other hand ignore constitutional constrains when it doesnt suit it.

What is badly needed and well overdue is the creation of an OFFICE OF THE GUARDIAN, a

constitutional council, that advises the Government, the People, the Parliament and the Courts as toconstitutional powers and limitations.

Currently there is to much nonsense going on where even judges do not even comprehendconstitutional limits and fancy themselves to amend the Constitution by backdoor manner

(judgments) while those politicians in the Parliament know next to nothing as to what is

constitutionally permissible or not.

Lets get realistic and before anyone comes up with what is wrong with any government level letthem first learn what is constitutionally applicable. After all, if they have it wrong from onset and

do not comprehend how matters are constitutionally then what are they talking about?

Please note the comments below, including an e-mail to Mr. Kevin Rudd.

DEBATES OF THE CONFERENCES (OFFICIAL RECORD.).

MONDAY, FEBRUARY 10, 1890.

Mr. DEAKIN.-

I believe, by the Bill which will shortly grant Western Australia the local government whichall Australasia has long wished her, to confine the new colony to the territory south of the 26th

parallel, while the territory north of that is to be governed by Western Australia under the

control of Ministers in England.

And

Mr. DEAKIN.-With regard to work which might be better done by a Federal Government than by the

separate Governments of the colonies, it is questioned whether, when the Convention comes

to consider all the issues raised (which I do not enter into), it will not be decided that the

larger part of the work should be left to the local Governments. It is argued that public works,

for instance, would be more satisfactorily carried out by the local Governments than by aGovernment more removed.

And

Mr. DEAKIN.-


21/31





But what is clearer is, that the great cable and mail lines between this continent and the oldworld would inevitably pass under the control of the Federal Government. There is one land

line already across the continent of Australia, which it might be necessary to hand over to the

Central Government, And there is a cable projected towards North America, which will

greatly affect the interests of the inhabitants of Australasia and the Pacific islands and our

countrymen across the sea.And

Mr. DEAKINLeaving these details, which I have only ventured to touch upon in a fragmentary way, and

sympathizing with the strong stand made by Mr. Playford on the supposition that the powers

and privileges of the different local Governments were to be assailed, and being as preparedas he is to do my utmost in their defence, I believe that we would act idly unless we admitted

from the first that in the creation of a Federal Legislature and a Federal Executive we meant

them to be the organs of a Sovereign state-a state which would not be a figment or shadow,

nor exist only on the sufferance of the local Parliaments, but which would draw its authority

straight from the people of the different colonies, obtaining from them the plenary powers tobe exercised by it within certain limits. The great lesson taught by Mr. Bryce in his

magnificent work is that the strength of the United States Government lies in this, that

although it is a Federal Government, under which each State of the Union is theoretically andactually independent in respect to all concerns of local life and legislation, it has

nevertheless sovereign authority in that it is gifted with powers which act directly andimmediately on every citizen of the entire country. It is not dependent on any state for one

cent of its revenue, nor upon state officers for any act of administration , nor upon State

Courts for any decision in its favour. Except that the state legislators elect the members of

the Senate there is no connexion between the states and their Central Government. The

Union is not concerned to have their support, nor does it seek their aid for the forces itmaintains. It is a Sovereign state acting directly, without any intermediary, upon the

citizens from which it springs. (Hear, hear.) I am glad that view is concurred with. I am glad

to think that we shall see a Sovereign state in Australasia which will be able to act directly

through its judiciary, and in other ways, on every citizen within its borders, and be in everyrespect and in all its powers the equal of any state in the world. Were we to aim at crippling,maiming, or enfeebling the local Legislatures, we would aim at doing something not only

wholly unnecessary for our purpose, but something which would actually injure the Federal

Government we are seeking to establish. There should be and must be nothing antagonistic

between a Federal Government supreme in its sphere and local Governments supreme in

their spheres. It is perfectly true that there must be a division of authority, that some of thepowers of the local Governments will have to be transferred to the Federal Government, but

the judges of the powers to be given to either body must not be either the local Governments

with their jealousies, or the Central Government with its ambitions. The judgment must come

from those whom both exist only to serve-from the people themselves. So far both the local

and central authorities must be regarded as on the same platform, because as it is in thenational interest that there should be a differentiation of the powers of Government into

central and local Governments so in settling that division only national interests ought tobe considered. What we have to study is how to give the central authority all the powers

which can be best exercised by such a body to the distinct advantage of the whole of the

people. Those powers it ought to have; but it is not to be [start page 27] entitled to acquirethem in such a way as would enfeeble the different local Governments, on whose healthy life

its successful existence must largely depend. As well might it be attempted to enfeeble

municipal institutions in order to aggrandize Parliament, the fact being that parliamentary

Government depends very much for its smooth and easy working upon the smooth and easy


22/31


23/31





Parliament is always inclined to act generously to sections of the community over which it hasto govern, and we have a right to assume that when we have created a Federal Parliament, and

local considerations from any of the states are submitted to it, it will treat them in much

the same manner as the state Parliament treats matters from municipal councils within

the area of their government now.


Sir GEORGE TURNER (Victoria) presented a petition from the Melbourne andMetropolitan Board of Works praying that the Convention would preserve the right of the

Queen's Australian subjects to appeal to the Privy Council, and moved that it be received and

read.

The motion was agreed to.

The CLERK read the petition, as follows:-

To the Right Honorable the President and the Members of the Australasian Federal

Convention, in session assembled.

The petition of the Melbourne and Metropolitan Board of Works humbly sheweth-That yourpetitioner is a body corporate created by Act of the Parliament of Victoria , composed of

representatives elected by the councils of the city of Melbourne and the municipalcouncils of the other 23 cities, towns, boroughs, and shires of the metropolis of the said

colony, which comprises an area of about 160 square miles, with a population of more than

451,000, who will be responsible for rates to be levied by your petitioner.

That the principal duties assigned to your petitioner are to manage and extend the watersupply of the said metropolis, and to undertake the sewering and draining thereof.

That in relation to the former of the said duties your petitioner is charged with liability to

the Government of Victoria for a sum of 2,359,156, the balance of money lent for

construction of the waterworks by creditors who are mostly resident in Great Britain. And for

extension of the said works, and to sewer and drain the metropolis, your petitioner hasborrowed 3,893,580 upon debentures, the holders of a large proportion of which reside in the

United Kingdom.

Date: Tue, 28 Aug 2007 01:23:27 +1000 (EST)

From:"Gerrit Schorel-Hlavka"

Yahoo! DomainKeys has confirmed that this message was sent by yahoo.com.au.

Subject: No parliament under a federation can be "sovereign Parliament"

To: [email protected]

CC: [email protected]

[email protected],

Kevin Rudd, Leader of Her Majesty's Opposition

.

AND TO WHOM IT MAY CONCERN.

Kevin,

In regard of your reported comments about seeking a REFERENDUM as to transfer legislative

powers from the States to the Commonwealth of Australia (regarding health matters), I do wish to


24/31





point out that Section 128 actually requires a state referendum to be held first in regard of anylegislative powers to be transferred to the Commonwealth of Australia, and once this has been

obtained then it requires another Federal Referendum (involving the same States). As such Section

128 requires actually two referendums. The Commonwealth Parliament cannot propose any

amendment of the Constitution unless the proposed amendment has been already accepted by the

relevant State themselves by a State referendum.Section 123 Referendum applies to where a State Parliament desires to have an amendment of its

State Constitution, it desires to refer legislative powers to the Commonwealth (such as within

Subsection 51(xxxvii) of the Constitution) and/or it desires to transfer part of its State territory to

the Commonwealth of Australia or otherwise alter its State boundaries.

It should be understood that State constitutions apply for the whole of the territory of that State andas such when the State refers legislative powers to the Commonwealth of Australia it in effect acts

as an alteration of its constitutional powers as it diminish its constitutional powers and as such can

only be approved or vetoed by the State electors.

.

Hansard 10-3-1891 Constitution Convention Debates.

QUOTE:-

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

END QUOTE.

"Subject to this constitution" means it must be interpreted to the intentions of the Framers of the

Constitution allowing for amendments made with approval by referendums.

With other words, the NSW Colonial Constitution Act effectively became amended by the

Commonwealth of Australia Act 1900 (UK) by legislatives powers belonging to all Colonies beinginvested in the Federation (Commonwealth of Australia) which were specifically listed in the

Commonwealth of Australia Constitution Act 1900 (UK).

By colonial referendums this was approved by all Colonies electors.

Therefore, since Federation no State Parliament could amend its own State Constitution as it nolonger was a "sovereign Parliaments" but a "constitutional Parliament", as like the FederalParliament. This means that the State Parliament (as like the Federal Parliament) can only propose

to the State electors to amend the State constitution and then the State electors must decide to

approve or to VETO this proposed amendments(s).

.

Hence, ask which State Parliament since Federation actually pursued this way to amend its Stateconstitution?

.

You may find that NSW amended its State Constitution in 1902 but was it with the required

approval of the State electors by State referendum?

You find that the State of Victoria purportedly amended its State Constitution without a Statereferendum in 1975, etc.

Likewise so in regard of any other subsequent purported State Constitution amendments!

.

As the Framers of the Constitution refused to give any legislative powers to the Commonwealth of

Australia as to define/declare "citizenship" (Hansard 2-3-1898 Constitution Convention Debates)then as I successfully argued in my previous cases, the Australian Citizenship Act 1948 is ULTRA

VIRES for so far it purports to define/declare "citizenship.

Hence, not a single police officer/lawyers/judge/politician is validly appointed as they all require

"citizenship" for this!


25/31





.All court convictions made subsequently to the amended constitutional are all unconstitutional and

ULTRA VIRES, for so far they rely upon unauthorised amendments of a State Constitution!

It is pleasing to me, as a "CONSTITUTIONALIST" that finally we have a person as the Leader of

Her Majestys Opposition who indicates to seek approval from the electors by way of referendum.

That is if you were to pursue changes in that regard.In my books in the INSPECTOR-RIKATI series, I have canvassed that we should have an

OFFICE OF THE GUARDIAN, a constitutional council, that advises the Government, the

People, the Parliament and the Courts as to what is constitutional permissible and the limits of

powers.

Basically, anyone convicted of serious crimes, even terrorism, can walk free because of the lack ofqualifications by all concerned, including lack of "CITIZENSHIP", and that is, so to say, merely

the tip of the iceberg.

The fact that I succeeded in the Court that the commonwealth of Australia has no constitutional

powers to compel anyone to register and/or to vote may underline how absurd it is that legislation

that is ULTRA VIRES is being enforced nevertheless.And, the Joint Senate Committee on Electoral Matters for years refused to attend to these issues

despite having been notified by me about this time and again.

. The general misconception is that any statute passed by legislators bearing the appearance of law constitutesthe law of the land. The U.S. Constitution is the supreme law of the land, and any statute, to be valid, must bein agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail. This

is succinctly stated as follows:The general rule is that an unconstitutional statute, though having the form and name of law, is in reality

no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the timeof its enactment, and not merely from the date of the decision so branding it. An unconstitutional law, in

legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question thatit purports to settle just as it would be had the statute not been enacted.

Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers norights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no

acts performed under it. . .

A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersedeany existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it issuperseded thereby.

No one is bound to obey an unconstitutional law and no courts are bound to enforce it.Sixteenth American Jurisprudence

Second Edition, 1998 version, Section 203 (formerly Section 256)

.

PLEASE NOTE THERE IS MORE REGARDING THIS ISSUE OF "CONSTITUTIONALPARLIAMENTS" BUT I WILL BE NICE TO YOU AND NOT QUOTE ALL RELEVANT

STATEMENTS FOR NOW. IN ANY EVENT THEY ARE PUBLISHED IN MY BOOKS!

.

Gerrit

Mr. G. H. Schorel-Hlavka

MAY JUSTICE ALWAYS PREVAIL

107 Graham Road

Viewbank, 3084, Victoria, Australia

Ph/Fax 03-94577209


26/31





International 61394577209

"CONSTITUTIONALIST" and Author of books in the INSPECTOR-RIKATI series on certain

constitutional and other legal issues.

See also website; http://schorel-hlavka.com and

Blog; http://au.360.yahoo.com/profile-ijpxwMQ4dbXm0BMADq1lv8AYHknTV_QH

See also;

Hansard 10-3-1891 Constitution Convention Debates.

QUOTE

Dr. COCKBURN: There have been only four amendments in this century. The hon.

member, Mr. Inglis Clark, is a good authority on America, and I am sure he will agree with

me that out of sixteen amendments only four have been agreed to in this century. All the otheramendments which have been made were really amend- [start page 198] ments which were

indicated almost at the very framing of the constitution, and they may be said to be

amendments which were embodied in the constitution at the first start. The very element, thevery essence, of federation is rigidity, and it is no use expecting that under a rigid and written

constitution we can still preserve those advantages which we have reaped under an elasticconstitution. All our experience hitherto has been under the condition of parliamentary

sovereignty. Parliament has been the supreme body. But when we embark on federation we

throw parliamentary sovereignty overboard. Parliament is no longer supreme. Our

parliaments at present are not only legislative, but constituent bodies. They have not

only the power of legislation, but the power of amending their constitutions. That must

disappear at once on the abolition of parliamentary sovereignty. No parliament under a

federation can be a constituent body; it will cease to have the power of changing itsconstitution at its own will. Again, instead of parliament being supreme, the parliaments

of a federation are coordinate bodies-the main power is split up, instead of being vestedin one body. More than all that, there is this difference: When parliamentary

sovereignty is dispensed with, instead of there being a high court of parliament, you

bring into existence a powerful judiciary which towers above all powers, legislative andexecutive, and which is the sole arbiter and interpreter of the constitution.

END QUOTE

End quote Chapter 361.

* Now I get it, there is no such thing as a level of government being municipal councils or shire

councils they are mere bodies for residents who can make certain rules for the local community but

not laws, is that it?

.**#** That is correct.

.

* And parliaments cannot amend their constitutions because it requires a State and/or federal

referendum for this. Am I correct?

.**#** That is correct.

.

.

.


27/31





.

.

Question 4; Who can stop an unconstitutional or suspected unconstitutional Bill to proceed in

the Parliament from being voted upon?

.

* That is simple the government as they have the majority in the Parliament..

**#** Actually, the government has no constitutional power in the parliament. The government is

the Federal Executive and the Parliament is the legislator. The government may have the majority in

either or both Houses of parliament but it still cannot dictate anything in the parliament unless there

is a vote in which its members had the majority..

Let say the government want a law passed that 12 year olds can vote in federal elections as it might

be attractive to teenagers to do so, however because Section 41 of the constitution states;

QUOTE

Right of electors of StatesNo adult person who has or acquires a right to vote at elections forthe more numerous House of the Parliament of a State shall, while

the right continues, be prevented by any law of the Commonwealth

from voting at elections for either House of the Parliament of theCommonwealth.

END QUOTE

it means that unless 12 year olds are deemed to be adults it cannot occur and more over if itcannot obtain the majority of those members voting in each House of the Parliament then it cannot

get the bill through either. While obviously many Members of Parliament may be members of the

political party or parties in power it doesnt mean they will vote with what the government desires.

They call it crossing the floor when they vote against what the Government desires or they can

abstain from voting to cause the government party to loose the vote..

Also consider the following; Objection to validity of a Bill.

.


QUOTE Mr. DEAKIN.-. The arguments of the Hon. Mr. Carruthers appear to have fallen on deaf ears, but, [start page

2042] as he pointed out, if there be embedded in the Constitution a direct enactment that no

proposed laws for taxation including more than the one subject of taxation, and no proposed

Appropriation Bill going outside the ordinary services of the year, can be legally dealt with,

both the Speaker of the House of Representatives and the President of the Senate would

not only be authorized, but would be imperatively required, in the discharge of theirduty, to rule such a measure out of order at any stage of its existence.

END QUOTEAnd

QUOTE

Sir JOHN DOWNER.-Now it is coming out. The Constitution is made for the people

and the states on terms that are just to both.

Mr. DEAKIN.-It is made for the lawyers under this clause.

Sir JOHN DOWNER.-I do not think so. If you say "Trust the Parliament," noConstitution is required at all; it can simply be provided that a certain number of gentlemen

shall be elected, and meet together, and, without limitation, do what they like. Victoria would


28/31





not agree to that. But there is a desire to draw the very life-blood of the Constitution, so far asthe states are concerned, by this insidious amendment, which would give the Houses

authority from time to time to put different constructions on this most important part ofthe Constitution. I hope we will do as we have done in many instances before, in matters that

have been much debated-adhere to the decision we have already arrived at.

END QUOTE

And

QUOTE Mr. HOLDER.-Surely there would be at least one representative out of the whole Senate and one

member of the House of Representatives, who would have individuality enough, and

strength enough, to get up and challenge the order of any particular measure which

might be disorderly under this clause of the Constitution.

Mr. ISAACS.-They would not all sit on the same side of the House.

Mr. HOLDER.-I should think not. They would not all be Ministerialists, or all members of

the Opposition, or all members of any particular party; and I cannot believe that any Bill

which contained anything objectionable at all could pass through both Houses of the Federal

Legislature without finding some one member of either of the two Houses who would riseto a point of order, and have such a Bill laid aside of necessity as being out of order under

this provision.

END QUOTE

And

QUOTE

Mr. CARRUTHERS (New South Wales).-It is worth while considering the stages that a

proposed law has to go through, and the opportunity afforded to a member of either House or

a member of the Executive to call attention to any infraction or infringement of the

Constitution. It does not require a majority of the members of the House of Representatives toinsist that the Constitution shall be obeyed in the matter of procedure; it only requires one

solitary member to rise to a point of order, and the Speaker has to give a legalinterpretation of the rules of procedure. It only requires one member of the Senate to call

the attention of the President to the fact that a Bill is introduced contrary to the

Constitution for that proposed law to be ruled out of order. It does not require a

majority of the states to insist that the Constitution shall be obeyed, because a majorityof the states cannot by resolution infringe the Constitution. Neither House could pass the

standing order which would give the majority power to dissent from the Speaker's or

President's ruling. The standing orders only confer certain explicit power. They give no power

to either House to pass an order which would enable its members to amend the Constitution.

END QUOTE

AndQUOTE

Mr. OCONNOR (New South Wales).-I quite agree with Mr. Trenwith that the object of the

provision is to protect the [start page 2010] Senate from being coerced by the House which

has the power of the purse primarily. But the question between us is not whether you shouldtake away that protection, but whether you should allow the Senate itself to give up, whether

by accident or design, on any particular occasion, the protection which the Constitution has

implanted there for its benefit. The protection of this Constitution is given, not for the Senate

for the time being, but for the people of the states whom the Senate represents. The

question really is whether, for the purposes for which this provision is designed, that is to say,the protection of the people of the states, as states, it is necessary that this provision should


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stand which makes a Bill illegal if these provisions are not complied with, or whether itshould be made merely a matter of parliamentary order between the two Houses?

.

Mr. OCONNOR.-That is begging the question. Even under the circumstances mentioned

by the honorable and learned gentleman, if the rights we are giving under this Constitution to

the House which represents the states are to be of any value at all, we should not put it into

the power of a majority in the House of Representatives or in the Senate to bargain themaway, or to give them away at their will.

END QUOTE

And

QUOTE Mr. OCONNOR.-

But these difficulties can be overcome by the proper consideration of the terms of theConstitution. I submit that the question raised here is a very much more important one than it

seems to be thought by some honorable members. I think it is the very essence of the

Constitution that we should preserve the form which has been adopted here, and that we

should make the necessity of its adoption imperative upon the Government and the

Parliament, subject to the liability of their acts being declared invalid by the Supreme Court inthe event of the directions of the Constitution not being followed.

END QUOTEAnd

QUOTE

Mr. REID.-My answer is, how could the House of Representatives put more than onesubject of taxation into a proposed law? If it will be possible for the House of

Representatives to put two subjects of taxation into a proposed law, in spite of the clear

words of the Constitution, it will be equally possible for a Taxation Bill to be originated in

the Senate without any one taking any notice of it.END QUOTE

And

QUOTE

Mr. BARTON (New South Wales).-I wish to make a few observations with regard to the

objection, not, I hope, in [start page 2014] any captious spirit. I quite see the stand-point fromwhich Mr. Isaacs and others have addressed themselves to the question. But it seems to me

that the argument which has been raised by Mr. Isaacs as to this last sub-section of clause 55,

is really an argument for greater clearness in the Constitution; because it seems to be admitted

that if the words of the Constitution are placed beyond dispute, then the confusion to which

my honorable and learned friend alludes cannot arise. Consequently, the real meaning of theargument is this-"I could not say what I have said if your Constitution we

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